[Mr Sullivan] graduated from the University of Western Sydney in 1996 with a Bachelor of Nursing. [Mr Sullivan] was first registered as a nurse with the Nurses Registration Board of New South Wales on 6 January 1997.
At all times relevant to the complaint, [Mr Sullivan] was employed as a registered nurse on a casual basis at The Centre for Addiction Medicine at Cumberland Hospital ("CAM, Cumberland") and Fleet Street Opioid Treatment Unit, Parramatta ("Fleet Street OTU").
Patient A has a history of drug abuse. In August 2015, Patient A relapsed into heroin use. In November 2015, Patient A began treatment as an outpatient at CAM, Cumberland. Patient A's treatment involved daily doses of Suboxone to aid her recovery and manage withdrawal symptoms.
On a number of occasions between November 2015 and August 2016, [Mr Sullivan] administered Patient A's daily dose of Suboxone or supervised another clinician administering Patient A's daily dose of Suboxone. Between November 2015 and February 2016, [Mr Sullivan] was involved in Patient A's daily dosing on approximately 20 occasions.
[2]
PARTICULARS OF COMPLAINT ONE
Between about mid December 2015 to early January 2016, [Mr Sullivan] failed to maintain proper professional boundaries by:
disclosing personal information regarding his marital status to Patient A at a Christmas Barbeque social event held by CAM, Cumberland, in mid to late December;
providing his mobile telephone number to Patient A at a Christmas Barbeque social event held by CAM, Cumberland, in mid to late December;
meeting Patient A at her home in early January in response to a text form Patient A inviting him to visit her.
In about early January 2016, [Mr Sullivan] entered into an improper and unethical personal and sexual relationship with Patient A which included:
[Mr Sullivan] entering into an arrangement with Patient A whereby [Mr Sullivan] would pay Patient A money in exchange for sexual activity initiated by him in order to assist her with her financial difficulties;
[Mr Sullivan] having sexual intercourse with Patient A at her home and another location on about eight occasions between about early January 2016 and about mid February 2016;
[Mr Sullivan] paying Patient A a sum of money on the majority of the occasions they had sexual intercourse.
Between early January 2016 to mid to late February 2016, [Mr Sullivan] inappropriately continued to provide treatment to Patient A, in the form of administering or supervising the administration of Suboxone to Patient A in his role as a casual registered nurse at CAM, Cumberland and Fleet Street OTU whilst engaging in a personal and sexual relationship with Patient A.
On a date between 7 and 22 June 2016, [Mr Sullivan] failed to maintain proper professional boundaries by giving Patient A money to pay for a veterinary bill and by stating to Patient A that it was 'the least I can do in exchange for your silence'.
Between 7 June 2016 and 31 August 2016, [Mr Sullivan] resumed his improper personal and sexual relationship with Patient A.
On a date between 7 and 30 June 2016, [Mr Sullivan] failed to maintain proper boundaries by:
inviting Patient A to come on a holiday to Queensland with him in September 2016; and
by offering to assist Patient A in the process of obtaining 'takeaways' in circumstances where 'takeaways' was a reference to Suboxone and [Mr Sullivan] was still involved in administering Suboxone to Patient A at either CAM, Cumberland and/ or Fleet Street OTU.
On a date between 1 June 2016 and 31 August 2016, [Mr Sullivan] failed to maintain proper professional boundaries by:
Discussing suicide with Patient A, a person whom he knew to have made a previous suicide attempt;
Representing to Patient A, a person with a history of opioid abuse, that he had methadone at his house, including by way of a text message sent by [Mr Sullivan] to Patient A on 18 July 2016 that stated:
'I had that methadone ages before the xmas bbq because i wanted to kill myself but didnt have the guts to do it. then I threw it out when i decided i didn't want to die.'
On 2 July 2016, [Mr Sullivan] failed to maintain proper professional boundaries by offering to assist Patient A financially, stating in a text message:
'lol. when rego due. i will be able to help next week if that helps'.
On 2 July 2016, [Mr Sullivan] failed to maintain proper professional boundaries by purchasing alcohol for Patient A and attending her house to stay the night.
On 19 July 2016, [Mr Sullivan] failed to maintain proper professional boundaries by offering to assist Patient A financially, stating in a text message sent to Patient A:
'Hi Lee. I just want you to know that if you ever get into financial difficulty like when suzie got sick, you can contact me and I will try to help. No strings attached.
Between 17 June 2016 and 22 July 2016, [Mr Sullivan] failed to maintain proper professional boundaries by sending Patient A approximately 78 text messages, including the following text messages:
On 17 July 2016, [Mr Sullivan] sent a text message to Patient A stating:
'… I gave you my phone number because i liked you and wanted to get into your pants. I am disillusioned with women after being deeply hurt by the two women I married. I now dont want to get hurt again so that is why I don't get over excited about things.'
On 17 July 2016, [Mr Sullivan] sent a text message to Patient A stating:
'… When I with you its because I want to be in your company and doesnt matter if we have sex or not.'
On 17 July 2016, [Mr Sullivan] sent a text to message Patient A stating:
'I am not trying to give you mixed messages. I like being with you sometimes and I like being on my own sometimes as well. I know you got hurt by him and there is no way I want to hurt you. I am aware of consequences about being with you and fully expect to find out soon what Fleet st is going to do about it… I think I might have to resign as a nurse.'
On 19 July 2016, [Mr Sullivan] sent a text message to Patient A stating:
'I am sure your test will come out clean. I didnt sleep with anyone else since leaving wife… I liked you and yes probably did use you for sex in the early days. I am sorry if that offended you but i thought we had an understanding on that… I guess I won't get the full time job at Fleet st then. It was nice knowing you Lee. I do hope everything will work out for you. Always remember that you are a good person. Bye.
On 20 July 2016, [Mr Sullivan] sent a text message to Patient A stating:
'… I haven't done anything wrong except get involved with a patient. Yes I am worried about my job but if I get deregistered because of what happened between us then I will just have to suffer the consequences and go on the dole…'
From 7 June to 31 August 2016, [Mr Sullivan] inappropriately continued to provide treatment to Patient A, in the form of administering or supervising the administration Suboxone to Patient A in his role as a casual Registered Nurse at the CAM, Cumberland and Fleet Street Unit whilst engaging in a personal and sexual relationship with Patient A.
Between 1 December 2015 and 31 August 2016, [Mr Sullivan] , by his conduct as set out in Particulars 1-12 above, breached the following guidelines:
The NSW Health Code of Conduct, published by NSW Government Health on 15 December 2015; specifically Codes 4.2.3 and 4.6;
The Code of Professional Conduct for Nurses in Australia, published by the Nursing and Midwifery Board of Australia, updated in 2010; specifically Conduct Statement 8.
[3]
COMPLAINT TWO
is guilty of professional misconduct under section 139E of the National Law in that [Mr Sullivan] has:
engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of [Mr Sullivan's] registration, or
engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of [Mr Sullivan's] registration.
[4]
PARTICULARS OF COMPLAINT TWO
The particulars set out in Complaint One are relied upon individually and cumulatively.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 June 2018
We are satisfied that the matters set out above establish both unsatisfactory professional conduct and professional misconduct. In reaching these findings, we note the admissions of Mr Sullivan of the factual findings leading to our conclusions, and the expert evidence of Ms Banks which we have summarised. Nevertheless, independently of the admissions and the expert evidence, our role is to determine for ourselves whether we find the complaints established.
Pursuant to s 139B(1) of the National Law, unsatisfactory professional conduct of a registered health practitioner includes both of the following:
(a) conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise.
...
(l) other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
As noted recently in Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [81], the terms "improper" and "unethical" as used in s 139B(1)(l) of the National Law are not defined and includes:
… 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].
Professional misconduct under s 139E of the National Law means:
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Ms Banks referred to various Codes of conduct. The first was the NSW Health Code of Conduct published in December 2015 by NSW Health. Relevantly, cl 4.6 provides:
4.6 Maintain professional relationships with patients or clients
Staff must:
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.
The second was the Code of Professional Conduct for Nurses in Australia, published by the Nursing and Midwifery Board of Australia, first published in 1990 and revised in 2003 and 2006. Relevantly Conduct Statement 8 is titled "Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care". After referring to the inherent power imbalance between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation, the Code states that nurses must actively preserve the dignity of people through practised kindness and respect for the vulnerability and powerlessness of people in their care. The Code then states:
3. Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for, and between themselves and others, such as the person's partner and family and other people nominated by the person to be involved in their care.
. . .
5. Sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances. Such relationships automatically raise questions of integrity in relation to nurses exploiting the vulnerability of persons who are or who have been in their care. Consent is not an acceptable defence in the case of sexual or intimate behaviour within such relationships.
Reference can also be made to Code of Ethics for Nurses in Australia published by the Nursing and Midwifery Board of Australia, published in 2010. This is described as a "companion document" to the Code of Professional Conduct for Nurses in Australia. As that Code notes, when a nurse crosses a professional boundary, they are generally behaving in an unprofessional manner and misusing the power in the relationship between him or her and their patient.
Given our findings as to the conduct of the sexual relationship between Mr Sullivan and his patient, Patient A, and given the obvious breach of the relevant professional and ethical codes of conduct referred to, we are satisfied that Mr Sullivan has engaged in unsatisfactory professional conduct as described in ss 139B(1)(a) and (l) of the National Law.
Given the repeated instances of unsatisfactory professional conduct that have been proven (and admitted), and the serious nature of the conduct, we are also satisfied that Mr Sullivan has engaged in professional misconduct as defined in s 139E of the National Law.
We agree entirely with Ms Banks that the conduct of Mr Sullivan, in entering into an agreement to pay for sex with Patient A, and entering into a relationship not once but twice with a vulnerable patient, was boundary crossing constituting the most serious violation of proper and ethical conduct by a nurse. We find that Mr Sullivan exploited a vulnerable and marginalised client for personal gain by offering and paying for sex. In doing so, he contravened his ethical and professional responsibilities to her. Mr Sullivan's behaviour and conduct fell significantly below the standard reasonably expected of a practitioner of his equivalent level of training and experience.
Consideration
The disciplinary powers of the Tribunal are set out in s 149 of the National Law. The Tribunal has a range of powers which appear in ss 149A and 149B.
The relevant principles which guide the Tribunal in matters such as the present include the following:
1. the paramount consideration in proceedings is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31];
2. the jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630.
3. the disciplinary outcome may have an element of personal deterrence. In NSW Bar Association v Meakes [2006] NSWCA 340 the Court of Appeal said at [114]:
. . . it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand).
1. in the exercise of its protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153; Health Care Complaints Commission v Howe [2010] NSWMT 12. This was referred to in Meakes at [114] as follows:
There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.
Given the seriousness of the conduct involved, we are of the view that, had Mr Sullivan still been registered, we would have cancelled his registration. As he is no longer registered, we must indicate the order we would have made. We were concerned when we heard Mr Sullivan say in evidence that he considered that he was still a risk to patients, in that he could not say that he would not be tempted himself to form a similar relationship in the future. This indicates that there is still a need to protect the public in the disciplinary outcome we propose to impose, and out disciplinary action must therefore indicate an element of personal deterrence as well as general deterrence.
Costs
Mr Sullivan suggested that his co-operation with the Commission, and his voluntary surrender of his registration at the time of the s 150 proceedings, were factors that warranted no order being made. We reject that submission. The Commission correctly submitted this is a costs jurisdiction, and that ordinarily costs should follow the event: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
As was stated in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85],
In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42].
Mr Sullivan did not submit that his impecuniosity would be a factor in us not making a costs order against him. As we told him, even if he had, impecuniosity is not a justifiable reason for departing from that rule: Philipiah at [42]. However, this may be a factor in the Commission determining whether or not to recover its costs, and/or entering into an arrangement for the recovery of those costs.
While we do not excuse Mr Sullivan's behaviour in any respect, we do acknowledge his candour both to the Council and the Tribunal, and his cooperation with both bodies.
We consider that, in addition to indicating that, had Mr Sullivan been registered we would have cancelled his registration, we should order that Mr Sullivan be disqualified from being registered as a registered nurse for a period of 18 months.
In this respect we note the authorities provided to us by the Commission, Health Care Complaints Commission v Nkomo [2014] NSWCATOD 7 and Health Care Complaints Commission v Grieve [2016] NSWCATOD 28. Both cases involved inappropriate sexual relationships between nurse and patient. In Nkomo the Tribunal noted that the respondent had "ignored professional boundaries and engaged in conduct that constituted a serious breach of trust and demonstrated a substantial lack of integrity": Nkomo at [97]. In Grieve the Tribunal characterised the conduct as being "a gross breach of the Respondent's professional obligations to his patient and an example of inappropriate exploitation of a vulnerable individual who had been the subject of his professional care": Grieve at [76]. We accept the Commission's submission that those words apply with equal force to the current matter.
In our view, given the seriousness of the conduct involved, we consider that Mr Sullivan should be disqualified from being registered as a registered nurse for a period of 18 months. This is a similar outcome to the authorities relied on by the Commission.