These proceedings arise because the Director of Proceedings, Health Care Complaints Commission ('HCCC') has determined to prosecute a complaint against the Respondent pursuant to s.90B(1) of the Health Care Complaints Act 1993, alleging he has been guilty of unsatisfactory professional conduct within the meaning of s.139B(1)(a) and/or professional misconduct within the meaning of s.139E.
There are two complaints. Complaint 2 relies on the cumulative effect of proof of the particulars (i) to (v) in Complaint 1. The complaints arise from the events of 7 October 2013, when the Respondent, an enrolled nurse employed by Mayfield Aged Care Facility ('MAC') engaged in contact of an intimate and sexual nature with Patient A, who was an admitted respite care patient of MAC.
The Applicant seeks the following orders:
1. An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of Patient A in the attached complaint dated 23 December 2014.
In the event the complaints against the Respondent are proved or admitted:
1. Orders pursuant to s.149A (Powers to caution, reprimand, impose conditions on registration etc); s.149B (Power to impose a fine) and/or s.149C (Powers to suspend or cancel registration, make a prohibition order, etc) of the Health Practitioner Regulation National Law (NSW) ('National Law').
2. Costs.
The HCCC wrote to the Respondent on 10 July 2015, enclosing a draft Statement of Agreed Facts asking the Respondent to consider such Statement and to indicate whether or not he agreed with the Statement. Furthermore, the Commission enclosed by way of service an Amended Complaint, which the Commission sought to rely on at the inquiry. The Amended Complaint referred in particular to the fact that the Respondent was no longer registered and supported such amendment with the inclusion of a copy of the Confirmation of the Respondent's Registration status from the Australian Health Practitioner Regulation Agency.
The Tribunal noted that both the Respondent and Patient A, on occasions, alluded to "not being treated as a human being due to disability". The Tribunal acknowledges that there is a suite of anti-discrimination law and International Conventions addressing bodily and personal autonomy of the disabled. However, the Tribunal's jurisdiction requires it to look purely at the conduct of the Respondent in his capacity as an enrolled nurse and whether his behaviour could be characterised as unsatisfactory professional conduct or professional misconduct in its failure to meet professional standards expected of someone of his level of training and experience in similar circumstances. The Tribunal in no way sought to comment on the rights of Patient A to enter into a relationship and enjoy the benefits of such a relationship; but rather were concerned with the conduct of the Respondent while employed as a nurse at MAC and in particular as a carer for Patient A.
In light of the Respondent's acceptance of most of the Agreed Statement of Facts, save with respect to whether Patient A and the Respondent had sexual relations and the issue of whether or not the Respondent or Patient A were intoxicated at the time of their return to MAC, the Tribunal readily nevertheless formed the view that it was satisfied to the requisite civil standard that the complaints were proved and to consider appropriate protective orders to be made by the Tribunal as a result of the admissions made by the Respondent.
In considering the orders to be made, the Tribunal was mindful that, not only did the orders to be made need to ensure, as far as practicable, that the Respondent would not re-offend, but also because of the publication of the Reasons and Orders would have an educative purpose for other health professionals, patients and the public in general. Accordingly, these Reasons explain why the Tribunal determined to make the orders summarised in the orders it made.
[2]
Background
The Respondent was registered as an enrolled nurse by the Nurses Registration Board of New South Wales, pursuant to the Mutual Recognition Act 1992, on 30 March 2000 on the basis of registration as an enrolled nurse (division 2) in Victoria, Australia.
On application for registration Andrew Watson made no declaration in relation to reportable offence.
Prior to the transition to national registration on 1 July 2010:
1. Records held by the previous Nurses and Midwives Board of New South Wales indicate that the Respondent was registered as an enrolled nurse continuously from 30 March 2000 to 4 November 2013. On 4 November 2013 proceedings pursuant to s.150 of the Health Practitioner Regulation Law (NSW) ("section 150 proceedings") which concluded that the nurse be suspended enrolled nurse division 2 until 11th October, 2013. The respondent had not worked as a nurse since his employment terminated on 11th October 2013.
2. Records held by the previous Board indicate that the Respondent completed annual returns, as required under legislation, in the years 2005-2010 (inclusive) and made no declarations regarding sensitive issues in these annual returns. Records prior to 2004 are not held by the Council and are therefore not available.
During the period of registration specified above, the Respondent had no conditions on his registration (letter from the Nursing and Midwifery Council of New South Wales dated 17 July 2015 admitted as evidence before the Tribunal hearing).
The Tribunal is satisfied that the facts as set out below have been proved to the requisite standard.
The conduct the subject of the complaints before the Tribunal relates to the care and treatment of Patient A who is a 51 year old Aboriginal woman who has an extensive medical history. While Patient A does not suffer from any cognitive impairment, she has been diagnosed with anxiety and depression and is confined to a wheelchair due to congenital dislocation of the hips. Patient A cannot live independently and requires 24 hour care. At the time of this incident, Patient A lived with a full-time carer at her private residence in Mount Isa.
On 19 September 2013 Patient A was admitted to the Mayfield Aged Care Facility ("MAC") for respite care as she was due to attend the wedding of her daughter who lived in New South Wales. The care was arranged through the Commonwealth Respite Service and Patient A paid a fee for her admission. The Respondent, who was employed by MAC, was involved in the care of Patient A from time to time from her admission date.
On 7 October 2013 the Respondent signed Patient A out of the MAC at about 11.00am. The Respondent accompanied Patient A to the Stag & Hunter Hotel ("the Hotel"). At the Hotel, the Respondent ordered and paid for alcoholic drinks, being rum and coke, for Patient A. The Respondent drank beer whilst at the Hotel with Patient A.
The Respondent and Patient A then went to the Diggers' Club, where they had more alcoholic drinks. The Respondent ordered and paid for the drinks. At the Diggers', the Respondent and Patient A kissed and held hands.
The Respondent and Patient A returned to the MAC at approximately 5.00pm.
When they entered the MAC, the Respondent and Patient A were holding hands.
The Respondent is alleged to have said "We are going to her room to make out" in front of staff. The Respondent and Patient A went to Patient A's room.
The Respondent undressed Patient A and helped her into bed, and he got undressed but kept his underwear on. They kissed and cuddled.
At about 4.20pm Assistant in Nursing Sharon Field, who was employed at MAC at the time of the incident, having worked there for over 2 years, gave evidence in person to the Tribunal and provided a sworn statement. Ms Field attested to having observed the Respondent and Patient A return to the ward at about 4.20 on the afternoon of 13 October.
Ms Field reported that at about 5.00pm she went to Patient A's room to get her for dinner and noticed that the door was fully closed, observing that this was unusual and generally only occurred when a patient was having her personal care attended to by the staff. Ms Field reported knocking on the door and receiving the reply from the Respondent "We are busy, go away". At this point, Ms Field went and informed her team leader, Hanna Fisher, who returned with Ms Field to Patient A's room together with another AIN, Christine Milford. The door was still shut and one of the three knocked on the door, receiving the same response.
At this point it was resolved between the three in attendance that they should go and inform the registered nurse on duty, RN Ron Teat. RN Teat came to the room and went inside with Hanna Fisher. Ms Field reported that she and the other AIN waited outside the room while RN Ron Teat and Team Leader Hanna Fisher spoke with the Respondent and Patient A. Upon receiving instructions from RN Teat and Hanna Fisher, the two AINs Sharon Field and Christine Milford entered the room and attended to the toileting and preparation of Patient A for bed.
The police were then called, and they questioned Patient A. The police report emanating from that investigation suggested that the Respondent and Patient A engaged in some level of intimate physical contact beyond kissing and cuddling.
The Respondent was then suspended from his duties at MAC and did not return to the facility. During the remaining period of Patient A's respite care at MAC, the Respondent continued to meet Patient A socially outside the facility between 8 and 17 October 2013 when she returned to Mount Isa.
Patient A subsequently invited the Respondent to visit her in Mount Isa and offered to pay his airfare. The Respondent accepted the offer and flew to Mount Isa, and he has remained living with Patient A ever since. In February 2015 Patient A and the Respondent were married and remain living together as husband and wife. The Respondent is now the designated full-time carer of Patient A.
[3]
The Applicant's Case
Complaint 1:
The Respondent is guilty of unsatisfactory professional conduct under s.139B of the National Law, in that the practitioner has:
1. engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
2. engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
Particulars of Complaint 1:
1. (i) On 7 October the Practitioner failed to maintain proper professional boundaries in that he signed Patient A out of the MAC at about 11.00am, and took her on an outing in Mayfield, whereby the Practitioner:
2. (a) accompanied Patient A to the Stag & Hunter Hotel, where he ordered and purchased alcoholic drinks for her, being rum and coke;
1. (b) consumed alcoholic drinks, being beer, whilst at the Stag & Hunter Hotel;
2. (c) accompanied Patient A to the Diggers', where he and Patient A consumed more alcoholic drinks, which the Practitioner ordered and purchased;
3. (d) kissed and held hands with Patient A.
1. (ii) On 7 October 2013 upon returning to the MAC at about 5.00pm the Practitioner failed to maintain proper professional boundaries in that the Practitioner:
1. (a) walked into MAC holding hands with Patient A;
2. (b) said to other staff members, "We're going to her room to make out";
1. in circumstances in which Patient A was intoxicated.
2. (iii) On 7 October 2013 upon returning to the MAC at about 5.00pm, the Practitioner engaged in improper physical and sexual contact with Patient A, in that the Practitioner:
1. (a) undressed Patient A and assisted her to bed, and undressed himself so that he was only wearing underwear, and got into bed with Patient A;
2. (b) kissed and cuddled Patient A in her bed;
in circumstances in which Patient A was intoxicated.
1. (iv) Immediately or shortly after Patient A's discharge from the MAC the Practitioner entered into a personal and sexual relationship with Patient A.
2. (v) By engaging in the conduct referred to in particulars (i)-(iv) above, the Practitioner breached the following policies, as set out below:
1. (a) The "Code of Professional Conduct for Nurses in Australia" of the Australian Nursing and Midwifery Council";
2. (b) "A Nurse's Guide to Professional Boundaries" of the Nursing and Midwifery Board of Australia;
3. (c) "The Code of Ethics for Nurses in Australia" of the Nursing and Midwifery Board of Australia;
4. (d) "The National Competency Standards for the Enrolled Nurse of the Australian Nursing and Midwifery Council, in particular competency element 1.4, which requires practitioners to ensure safe outcomes for individuals and to recognise the potential for harm.
Complaint 2:
The Respondent is guilty of professional misconduct under s.139E of the National Law in that the practitioner has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration.
Particulars of Complaint 2:
The particulars of Complaint 1 are repeated and relied upon both individually and cumulatively.
[4]
Relevant Law - unsatisfactory professional conduct and professional misconduct
This matter was initially an inquiry under s.167(1) of the National Law. The practice in similar situations where major concessions have been made by the respondent health professional albeit prior to the commencement of the Tribunal hearing is that the Tribunal independently examines the conduct underlying the conceded complaint or complaints (see HCCC v Guo [2011] NSWNMT 29 (15 November 2011); HCCC v Shah [2013] NSWNMT 1 [12 March 2013))
The statutory definitions of unsatisfactory professional conduct (s.139B(1)(a)) and of professional misconduct which is found in s.139E of the National Law are as follows.
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following:
(a) Conduct 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.
...
(2) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession."
"139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct" of a registered health practitioner 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 instance sare considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration."
Section 149A is in the following terms:
"149A General powers to caution, reprimand, counsel etc [NSW]
(1) The Tribunal may do any one or more of the following in relation to the registered health practitioner-
(a) caution or reprimand the practitioner;
(b) impose the conditions it considers appropriate on the practitioner's registration;
(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the practitioner to complete an educational course specified by the Tribunal;
(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;
(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
(2) The Tribunal may do any one or more of the following in relation to the student-
(a) caution or reprimand the student;
(b) impose the conditions it considers appropriate on the student's registration;
(c) order the student to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the student to complete an educational course specified by the Tribunal.
(3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only-
(a) to prevent the practitioner being registered unless the order is complied with; or
(b) to require the conditions concerned to be imposed when the practitioner is registered.
(4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled.
(5) The order or condition concerned is then a "critical compliance order or condition".
149B Power to fine registered health practitioner in certain cases [NSW]
(1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units.
(2) A fine is not to be imposed unless-
(a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and
(b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.
(3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct.
(4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession.
149C Tribunal may suspend or cancel registration in certain cases [NSW]
…
(4) If the person is no longer registered, the Tribunal may-
(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and
(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and
(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following-
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Note: Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
(5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.
(6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order-
(a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and
(b) give the Council, National Board and Commission an opportunity to make a submission.
(7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
Schedule 5D is in the following terms:
SCHEDULE 5D - Proceedings before Professional Standards Committees or the Tribunal [NSW]
Note: This Schedule is an additional New South Wales provision.
7 Release of information [NSW]
(1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)-
(a) direct that the name of any witness is not to be disclosed in the proceedings; or
(b) direct that all or any of the following matters are not to be published-
(i) the name and address of any witness;
(ii) the name and address of a complainant;
(iii) the name and address of a registered health practitioner or student;
(iv) any specified evidence;
(v) the subject-matter of a complaint.
(2) A direction may be amended or revoked at any time by the person presiding.
(3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to-
(a) a person who requested the direction; and
(b) the complainant or the registered health practitioner or student concerned, as appropriate; and
(c) another person the person presiding thinks fit.
(4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
(5) A person who contravenes a direction given under this clause is guilty of an offence.
Maximum penalty-
(a) in the case of a corporation, 150 penalty units; or
(b) in any other case, 20 penalty units."
[5]
The Standard of Proof
The Commission bears the onus of proof with respect to the two complaints prosecuted in these proceedings, namely unsatisfactory professional conduct and professional misconduct.
The standard of proof is a civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. However, by reason of the seriousness of the allegations and the gravity of the consequences, the Tribunal must be comfortably satisfied that the matters in the complaint have been established.
The Court of Criminal Appeal has cautioned against use of "comfortably satisfied" as implying that matters must be proved according to a higher standard than that of the balance of probabilities: Gianoutsos v Glykis (2006) NSWLR 539 at 547-9, applied by the Medical Tribunal in In Re Dr Suman Sood [2006] NSWMT 1 at 10.
At common law there are only two standards of proof, the civil standard of proof upon a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: Polglaze v Veterinary Practitioners' Board of New South Wales [2009] NSWSC 347 at [31].
The Briginshaw standard is not a third standard of proof; rather, it is concerned with the quality of sufficiency of the evidence necessary to discharge the civil standard.
[6]
Respondent's Evidence
The Respondent attended the hearing and gave oral evidence before the Tribunal. He was accompanied throughout the entire course of the proceedings by Patient A. Patient A was present during the entire proceedings (with the consent of all parties) and adopted her statement as true and correct in oral evidence. During day 1 of the hearing various statements had been submitted to the Tribunal prior to the commencement of the hearing, including:
receipt of a s.28 letter from the Commission to the Respondent dated 27 November 2013;
response from Mr Gary Lukac (a previous carer of Patient A) dated 3 December 2013;
response from Mr Gary Lukac and Andrew Watson dated 4 December 2013;
further later response from Mr Andrew Watson, albeit undated;
letter to the Commission from Mr Gary Lukac (undated, received on 4 June 2014);
letter to the Commission from Mr Andrew Watson dated 25 May 2014;
letter from the Commission to Mr Gary Lukac dated 12 June 2014;
CV of Andrew Watson;
reference dated 22 May 2015 and received on 9 June 2015 by the HCCC.
letter dated 22 May 2015 from Patient A outlining her position;
evidentiary certificate from the Nursing and Midwifery Council of New South Wales pursuant to s.244A of the Health Practitioner Regulation National Law (NSW) dated 17 July 2015;
reference from Patricia Celestine Lees, Corporation CEO of Injilinji Aged Care, a Division of Injilinji Aboriginal and Torres Strait Islander Corporation for Children and Youth Services dated 20 July 2015;
reference from Dr Michael Mbaogu of Mt Isa Medical Centre dated 10 July 2015;
reference from Ron and Frances Page, residents of Mt Isa, dated 19 July 2015;
reference of Vladimir Djordjevic dated 9 July 2015.
Throughout the course of the hearing the Respondent made a number of admissions which will be particularised below. The principal matter with which the Respondent took issue was whether or not Patient A was intoxicated on her return to MAC at around 5.00pm on 7 October 2013. The Respondent also denied sexual intercourse took place between the Respondent and Patient A. The Respondent further contends that any transgression of professional boundaries by him ought not lead to a finding of unsatisfactory professional conduct, let alone professional misconduct, for the following reasons:
1. he was on his rostered day off when the incident occurred;
2. Patient A was a respite patient, thereby placing her into a separate and distinct category of patients to which the Code of Conduct did not or ought not to apply;
3. no employee at MAC raised the inappropriateness of his "outing" or return to her respite room;
4. the patient requested the intimacy;
5. he fell "in love" with the patient during lunch, and hence could not withhold his affections later in the afternoon, even if he knew or suspected that intimate contact was inappropriate.
Mr Watson's letter of 22 May 2015 simply stated:
"I took Patient A out of Mayfield Aged Care for a drink to celebrate her daughter's marriage, at no stage did I knowingly put her in any danger, we were not asked to leave either venue that we attended or make a scene, coming or going from MAC. And I returned her to MAC in good health. I will say that I was not sure about respite residents' rights and I was only trying to brighten her day. If I've done anything wrong it was unknowingly."
The Respondent further stated that he believed himself to be a good nurse in aged care, having practised in this area for the last 13 years.
There was a further letter from Patient A which was received by the Commission on 26 June 2015. In it, Patient A wrote:
"... Andrew arrived on time when he came to pick me up for our walk around Mayfield, he even signed me out. I was very excited as I haven't seen the area for quite a while. We went to a pub, he asked me what type of drink I would like? I replied: rum and cola please. He went and bought our drinks, not only because he's a gentleman but because the bar was too high for me to be seen. We only had a couple of drinks, as I still had to drive the power chair responsibly. Then we went to get something to eat. From there we went to a club, talked and had a few more drinks, not too many, I still had to drive. I was not drunk. I cannot risk falling because the last time I did I broke my hip. Before he knew it, the time had come for us to return to Mayfield Aged Care. Andrew treated me with respect and as a normal person. At no time did I feel endangered. I had a wonderful day out.
Everyone greeted us on our return. I invited Andrew to come to my respite room to talk some more. Andrew did tell the staff we were going to make out. We didn't hide from anyone. Nobody told us it was wrong. The way we were treated was very wrong.
The day turned bad when some of the nursing staff presumed we were having sex. We did not have sex. We still haven't had sex. It causes me too much pain. We were just having a cuddle. I was extremely embarrassed when the police were called and I had to explain what happened. The police wondered why they had been called. I have not put in any complaint against Andrew Watson. I should have put in a complaint against Mayfield Aged Care as they permitted Ron Teat's actions. Ron Teat should have been the one to be dismissed as he yelled it all over the place."
At the commencement of the hearing the Respondent provided several references including:
1. A letter from Patricia Celestine Lees from the Injilinji Aboriginal and Torres Strait Islander Corporation for Children and Youth Services dated 20 July 2015. Ms Lees talked of the Respondent as a 'caring, loving, encouraging, honest and compassionate person whose decent character is best exampled by his devoted commitment to ensuring that Patient A, despite her incapacity, has every opportunity to participate and enjoy life's blessings on her terms.
2. A letter from Dr Michael Mbaogu of Mt Isa Medical Centre. Dr Mbaogu spoke in terms of Patient A's improved disposition since returning to Mt Isa from Newcastle with the Respondent and described the Respondent as a loving caring husband and to the best of his knowledge an upstanding citizen.
3. A character reference from Ron and Frances Page who indicated they had known the Respondent for two years and noted the care and love that he had exhibited in his support of Patient A during that period.
4. A further handwritten reference from Vladimir Djordjevic dated 9 July 2015 who had known the Respondent for the past two years socially and observed he had found him to be of good character and always a gentleman towards people.
[7]
Complaint 1
Complaint 1 alleges the Respondent is guilty of unsatisfactory professional conduct in that he:
1. engaged in conduct that demonstrated the judgment possessed or care exercised by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
2. engaged in improper or unethical conduct relating to the practice or purported practice of nursing.
[8]
Particular 1
Particular 1 alleges 5 factual circumstances:
1. that the Respondent signed Patient A out of the MAC at about 11.00am and took her on an outing in Mayfield;
2. that the Respondent accompanied Patient A to the Stag & Hunter Hotel, where he ordered and purchased alcoholic drinks for her, being rum and coke;
Sub-particular 1(a)
1. that the Respondent consumed alcoholic drinks being beer, whilst at the Stag & Hunter Hotel;
Sub-particular 1(b)
1. that the Respondent accompanied Patient A to the Diggers, where he and Patient A consumed more alcoholic drinks, which the Respondent ordered and purchased;
Sub-particular 1(c)
1. that the Respondent kissed and held hands with Patient A;
Sub-particular 1(d)
[9]
Particular 1
The Tribunal finds that Particular 1 of Complaint 1 is proved. The Tribunal relies on the following lay evidence in making this finding of guilt in respect of the five factual circumstances listed in Particular 1 above:
1. The Respondent's oral submissions during the hearing that he agreed and admitted to those matters contained in the Agreed Statement of Facts at paras 1, 2 and 3, which are in identical terms to Particular 1 sub-particulars (a)-(d). A copy of the Agreed Statement of Facts is annexed to the decision and marked Annexure A. The Agreed Statement of Facts stated:
"1. On 7 October 2013 the Practitioner signed Patient A out of the Mayfield Aged Care Facility ("MAC") at about 11.00am.
2. The Practitioner accompanied Patient A to the Stag & Hunter Hotel ("the Hotel"). At the Hotel the Practitioner ordered and paid for alcoholic drinks being rum and coke for Patient A. The Practitioner drank beer whilst at the Hotel with Patient A.
3. The Practitioner and Patient A then went to the Diggers Club where they had more alcoholic drinks. The Practitioner ordered and paid for the drinks. At the Diggers, the Practitioner and Patient A kissed and held hands."The statement of Patient A dated 4 March 2014 at paragraphs 10 and 11 states:
1. The statement of Patient A dated 4 March 2014 at paragraphs 10 and 11 states:
"10. On 7 October 2013 Andrew came to the nursing home and picked me up at 11.00am. I remember it was this time because my daughter and I had reached a compromise and she agreed to come to Mayfield and show me her in her dress the day of the wedding. After she had been, Andrew came and got me. It was Andrew's day off and he let the staff know he was taking me out and he signed me out. We made no secret that we were spending time together.
11. I remember we went down the street. We visited a few shops. We went to the Stag & Heart. We had a few drinks, I was drinking rum and coke and Andrew had a few beers. I don't have an issue with drinking and I don't find a few drinks interferes with my medication. We then went to the Diggers and we had a few more drinks and a meal. Andrew paid for everything. We were having a lovely time, just talking and getting to know each other. We were kissing and holding hands. It was clear to me he liked me. I think in total I had about 5 drinks from about 11.00am and 5.00pm. I would say Andrew drank about two drinks to my one. I would describe my level of intoxication as merry and Andrew was happy."
The Tribunal notes that Patient A adopted her statement as true and correct in oral evidence during day 1 of the hearing.
The Tribunal has accepted and relies on expert evidence of Ms Deborah Armitage, Clinical Nurse Consultant (CNC) for Older Persons Acute Care with Hunter New England Local Health District, whose expert report was critical of the conduct particularised above, stating that it amounted to a "failure to maintain proper and professional boundaries". At page 3 of Ms Armitage's report she stated:
"While EN Watson's motives may initially have been simply to relieve the upset that Patient A was experiencing, taking her on a personal social outing is not consistent with the professional boundary a nurse is required to maintain. The Nursing and Midwifery Board of Australia's Nurses' Guide to Professional Boundaries (2010) is clear on this, stating "professional boundaries separate the therapeutic behaviour of a nurse from any behaviour well intentioned or not, that could lessen the benefit of care to people, families and communities". The Guide explains these boundaries are the limits to the relationship between a nurse and the person in their care which allows for a safe and therapeutic connection between them.
Both the Code of Professional Conduct 2008 and Code of Ethics for Nurses in Australia 2008 describe the relationship between a person and a nurse, particularly when the person experiences pain, needs assistance with personal care or belongs to a marginalised group. Patient A was experiencing all these vulnerabilities and EN Watson would have been aware of this. In addition, her former carer, Gary Lukac, noted on her Mayfield Aged Care Facility Admission Form that "my disabled Aboriginal friend will be frightened at first and I trust you will take that into consideration", making staff aware that simply coming to the facility would increase her vulnerability.
Given EN Watson has over 10 years' experience in the field of residential care he should be aware of the vulnerable status - both physical and emotional - in which residents are admitted to facility, even in a respite situation. Continuing to provide professional and emotional support within the facility, or referring Patient A to other staff with expertise in supportive care should have been the action he took. As well intentioned as his action of taking her out may have seemed at the time, his breach of professional boundaries is below standard."
Ms Armitage further expressed the opinion that:
"Kissing her and holding her hand is an obvious departure from any therapeutic relationship. It should have been clear to EN Watson at this point that their relationship was becoming sexual. The Nurses' Code of Professional Conduct, Code of Ethics and Guide to Professional Boundaries are all clear that such relationships between nurses and persons for whom they care are inappropriate and that the beginnings of such relationships should be recognised and managed."
Ms Armitage's expert opinion was that taking Patient A on a personal social outing is not consistent with the professional boundary a nurse is required to maintain. Ms Armitage further noted the alcohol that was consumed during the outing and states: "Nurses are responsible for ensuring their standard of practice conforms to professional standards with the object of enhancing the safety of people in their care", and that in consuming large quantities of alcohol whilst being responsible for the patient the Respondent either failed to recognise or ignored the increased potential for harm in which he placed the patient, stating:
"The fact that the Respondent consumed alcohol while he had the responsibility for her care has the potential to impair his ability to act quickly and appropriately in the event of her needing care urgently placing at risk the safety of a woman who is physically disabled, emotionally distressed and in unfamiliar surroundings. This is a breach of his duty. Enrolled nurses must act to ensure safe outcomes for individuals by recognising the potential for harm. In consuming a large quantity of alcohol while being responsible for Patient A, EN Watson either failed to recognise or ignored, the increased potential for harm in which he placed her. I consider this to be significantly below standard and am strongly critical of his actions."
The Tribunal also accepts the submission from the Commission that the transgression of professional boundaries did not lie in the single act of taking Patient A out socially, but rather it is the conduct during that outing and upon return to the facility that breaches the professional boundaries between nurse and patient. The fact that the Respondent was on a rostered day off is irrelevant when assessing his conduct as the Respondent was still employed by MAC, had met Patient A in his capacity of employment as a nurse at MAC and Patient A was at all times an admitted patient of MAC.
The Commission further relies on the Australian Nursing Midwifery Council (ANMC) Code of Professional Conduct (the Code of Conduct) which states that sexual relations between nurses and patients are inappropriate and consent is no defence. The Commission submitted that the term "sexual" encompasses "intimate" contact such as "kissing", "cuddling" and "undressing", and all forms of intimate sexual contact fall within the definition of the conduct contemplated by and intended in the Code of Conduct. In the Code of Professional Conduct under the heading of Conduct Statement 8 under the subheading "Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care", at paragraph 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 intimate behaviour within such relationships."
[10]
Particular 2
The Tribunal finds that Particular 2 of Complaint 1 is proved. The Tribunal relies the following evidence in making this finding, namely:
1. The Respondent's oral submissions during the hearing that he agreed and admitted to those matters contained in the Agreed Statement of Facts at paragraphs 4, 5 and 6 which are in identical terms to Particular 2, sub-particulars (a) and (b).
2. The Tribunal also relies on the statement of Patient A, dated 4 March 2014 at paragraph 12.
The Tribunal relies on the statement and oral evidence of Sharon Field, Assistant in Nursing on duty that day, who saw the Respondent and Patient A holding hands.
The Respondent denies that he was intoxicated on the return of Patient A. Patient A asserts that upon her return she was 'merry', having consumed roughly 5 drinks in 6 hours; Sharon Field gave evidence that upon their return she heard Patient A state whilst giggling that they had "too many (drinks) but that is our secret".
The Respondent does not dispute that whilst at the Stag & Hunter Hotel, both he and the patient consumed alcohol. What is in dispute is the level of intoxication. The Tribunal is not prepared to find that the Respondent and Patient A were seriously intoxicated; nevertheless, they were clearly affected by alcohol.
Complaint One Particular 2 alleges certain conduct occurred 'in circumstances in which Patient A was intoxicated'. Proof that Patient A was intoxicated does not prove the alleged impropriety; it merely goes to the gravity of the impropriety. The Commission submitted that the consumption of alcohol has the very real potential of increasing the vulnerability of the patient on many levels. Alcohol is a disinhibitor, and thereby increases the likelihood of consent to advances, where such consent might not otherwise have been forthcoming. On the Respondent's own oral admissions during the hearing, alcohol may have contributed to his inability to resist the temptation of acting out his love.
Whilst making no conclusive findings with respect to the degree of intoxication, the Tribunal finds that Complaint 1 Particular 2 is established on the evidence before the Tribunal. The Tribunal accepts that is relevant to the Respondent's moral culpability and the degree to which the patient's vulnerability was increased, thereby placing her at greater risk.
It is of concern to the Tribunal that the Respondent purchased alcohol for a patient in circumstances where he was not informed - nor does it appear made any enquiries - as to what medication regime the patient was on. This further placed Patient A at increased risk and heightened her vulnerability.
The Tribunal also relied on the views of the expert witness Ms Deborah Armitage, who stated at pages 2-3 of her report:
"… As an EN with considerable experience, EN Watson should have been aware that this was inappropriate for [Patient A] to drink alcohol while taking these medications and that doing so placed her at risk of harm. While she remained a resident in the facility, his responsibility to her was as a health professional. The Code of Professional Conduct for Nurses in Australia states that nurses are responsible for ensuring their standard of practice conforms to professional standards "with the object of enhancing the safety of people in their care". Providing [Patient A] with alcohol did not enhance her safety but placed her at risk. EN Watson's actions in this regard is in breach of this Code and below standard."
The Commission does not submit that the purchasing of alcohol was designed with intent by the Respondent to sexually exploit Patient A. Nor does the Commission contend that the Respondent intended, or even considered, that this might place Patient A at risk and increase her vulnerability. The Commission does submit however that intent is irrelevant when considering whether the conduct - the actus reus, the act of hand holding, kissing, cuddling and semi or total nakedness amounted to a breach of professional boundaries. The Respondent's intent informs only his moral culpability and thereby is relevant not to proof of the Particulars but rather to appropriate protection orders. Well-intentioned acts do not make improper conduct - proper. As stated earlier, the Code of Conduct explicitly states that consent is no defence to sexual relations between nurse and patient being inappropriate.
[11]
Particular 3
Particular 3 alleges two factual circumstances, namely:
1. Undressed Patient A and assisted her to bed, and undressed himself so that he was only wearing underwear, and got into bed with Patient A: sub-particular 3(a)
2. Kissed and cuddled Patient A in her bed: sub-particular (3).
The Tribunal finds that Particular 3 of Complaint 1 is made out and relies on the following evidence or admissions to prove the two factual circumstances listed in Particular 3:
1. The respondent's oral submissions during the hearing that he agreed and admitted to those matters contained in the Agreed Statement of Facts at paragraphs 7 and 8 which are in identical terms to Particular 3, sub-particulars (a) and (b).
2. The statement of Patient A dated 4 March 2014 at paragraph 13.
The Tribunal further relies on the statement of RN Ronald Teat: Tab 5 [7]-[10], the statement of AIN Christine Milford: Tab 7 [7]-[8] and the statement of AIN Sharon Field: Tab 9 [17]-[18].
The Tribunal further relies on the expert opinion of Mrs Armitage at paragraphs 4.2-4.3 of her report where she stated that:
"As previously presented, [Patient A] was vulnerable by nature of her disability, emotional distress, dependence on personal care and being in an unfamiliar environment and circumstances. She also admits "I would describe my level of intoxication as merry", increasing the risk of her vulnerability being exploited. She expresses her own vulnerability in her statement dated 4 March 2014 in saying that she wanted to be hugged in bed and she wanted to be naked because "my life in a wheelchair really limits the extent of physical intimacy I can have with someone". This admission further demonstrates the loneliness and vulnerability of [Patient A]. The Code of Professional Conduct is clear that nurses must recognise that vulnerable people, including people with disabilities, must be protected from sexual exploitation. Rather than protect [Patient A], EN Watson was the perpetrator of such exploitation. Whether or not [Patient A] and EN Watson engaged in sexual intercourse is not relevant as the nature of this incident is indeed sexual. Both [Patient A] and EN Watson give statements that this incident occurred between two consenting adults. However the Guide to Professional Boundaries make it clear that this is not an acceptable defence. "Even if the person consents or the person initiates the sexual conduct, it is still the nurse's responsibility to maintain the professional boundary in the relationship.
Rather than protect a person as vulnerable as [Patient A] from exploitation, EN Watson was the perpetrator of such exploitation. For this reason I find his actions to be significantly below standard and they invite my strong criticism."
The Tribunal is of the opinion that whilst clearly the Respondent and Patient A engaged in sexual relations, there is insufficient evidence to support a finding that sexual intercourse took place.
[12]
Particular 4
Particular 4 asserts that the sexual and personal relationship between the Respondent and Patient A continued after 7 October 2013. This fact is not in dispute. The Respondent stated countless times during the proceedings that he and the patient continued their relationship and are now happily married and that they were and are in love. The Commission, upon reflection, submitted that 'Particular 4' is more properly categorised as context evidence rather than an allegation.
The Commission urged the Tribunal not to use this context evidence, in particular the 'happy outcome of what the Commission allege was improper conduct, to influence any finding as to the correct characterisation of the conduct of 7 October 2013. Impropriety is not concerned with 'actual' abuse but rather the 'potentiality for abuse'. Intimate relations between nurse and patient are deemed improper based on recognition of the inherent power imbalance in such a relationship. The Tribunal accepts the Commission's submissions on this point. The impropriety of an intimate relationship between nurse and patient whilst a therapeutic relationship is in existence should never be assessed by reference to future developments in the relationship between the parties. It is the conduct as at the time, in its then factual matrix, which needs to be analysed. The conduct on 7 October 2013 transgress professional boundaries.
[13]
Particular 5
The Tribunal finds Particular 5 of Complaint 1 proved and in so doing, the Tribunal relies on the evidence contained in the expert report of Ms Armitage (Annexure B, pages 18, 19 and 20; Annexure D, page 4).
[14]
Complaint 2
Complaint 2 alleges that the Respondent is guilty of professional misconduct under s.138E of the National Law in that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal having found Particulars 1-5 of Complaint 1 proved, as a consequence, the Tribunal is comfortably satisfied that the policy and procedure breaches outlined in Particular 1(v) are also proved. It is further of the opinion that the cumulative impact of those findings supports proof of Complaint 2, i.e. via proof of the particulars of Complaint 1.
The Tribunal accepts that the conduct on 7 October, namely the undressing of Patient A by the Respondent, his subsequent own undressing and the intimacy that then occurred in the patient's bed situated in the respite care ward of Mayfield Aged Care facility, is of such gravity that the conduct amounts to professional misconduct.
The Tribunal's view in this regard is consistent with the delegates of the Nurses and Midwifery Council at the conclusion of the s.150 proceeding. Such conduct has the very real possibility of causing undue anxiety in the minds of other patients as to their own personal safety and brings the profession into disrepute.
The Respondent's protestations of being overcome with love, hours earlier; of knowing - yet not knowing - that such conduct was wrong; of simply acquiescing to the patient's wishes; or excusing such conduct as he was not on duty and she was not a 'patient' in the true sense; or that all he did was 'treat her as a human being' - unquestionably give clarity as to why the conduct occurred and give clarity as to the Respondent's thinking at the time. But they do nothing to rebut the contention that engaging in sexual relations with a patient, in a respite ward bed, in an aged care facility, is anything other than serious conduct.
The Tribunal accepts that the Respondent's explanations as to why the conduct occurred, are potentially relevant to the appropriate protective orders, but that they are not relevant to the question of whether the conduct amounted to professional misconduct. As stated earlier, it is the actus reus, namely the Respondent's acts, not the mens rea, namely the Respondent asserted 'honourable' intention, which must be examined in assessing whether the conduct was improper and unethical and whether such conduct demonstrated a very serious failure of judgment by him.
The Commission submits that a nurse who, in effect, "gets naked" with a respite care patient, in her bed, while she is admitted in the facility where he works is objectively serious and demonstrates a very significant failure of judgment by him. Its significance and seriousness amounts to professional misconduct. The Tribunal accepts this submission.
[15]
Disposition in terms of protective orders
The principles to be applied in determining the appropriate order are set out in, among others, HCCC v Litchfield (1997) 41 NSWLR 630; Gayed v Walton 31/7/1997 NSWCCA unreported; Bannister v Walton (1993) 30 NSWLR 699. They include:
1. The protection of the public is the paramount consideration;
2. The maintenance of the high standards of the nursing profession;
3. Deterring not only the particular nurse but others who may stray from the appropriate standards; a reminder to the profession;
4. To emphasise the unacceptability of the conduct involved.
As was stated in HCCC v Litchfield [1997] 41 NSWLR 630 at 637 line D:
"Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession."
At 638 line C the Court went on to say:
"The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done, there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. The approach of the Tribunal in this case stood the proper principle on its head."
The Tribunal accepts that the Respondent's complete lack of insight is of considerable concern when considering the protection of the community. The Tribunal formed the opinion the Respondent appears incapable of understanding or accepting why his conduct on 7 October 2013 has come under scrutiny. He appears incapable of distinguishing what he asserts was his honourable intention, with an objective assessment that sexual relations between nurse and patient should not occur. He is almost unapologetic about his inability to refrain from his acts of intimacy, defending such conduct with protestations of love for Patient A.
As romantic as the picture he paints is, the Tribunal cannot ignore that he is a mature man, 51 years of age at the relevant time and with 23 years' experience in the nursing profession. Patient A was only to be a patient at his employer's facility for another 2 weeks. His inability to refrain from intimacy in such circumstances leaves open an inference that his self-interest was of greater importance to him than his professional ethics. Whilst it is apparent from the Respondent's history that this incident was aberrant, the Tribunal remains concerned having regard to the Respondent's admission during the proceedings that he would do the same again if the same scenario presented a second time. It is this lack of insight or reckless indifference to governing codes of conduct that the Commission submits raises real questions as to the protection of the public and the requirement that the protective order imposed addresses both general and specific deterrence.
The Tribunal is of the opinion that the objective seriousness of the conduct contained in the Complaints before it concerning this Respondent calls for serious protective and deterrent measures. It is not a question of punishment; it is a question of protection to the community and maintaining the reputation of the nursing profession.
[16]
Orders made
That Complaints 1 and 2 are proven.
Pursuant to s.149C(4) of the Health Practitioner Regulation National Law (NSW) ("the National Law") the Respondent's registration as a nurse is cancelled from the date of this order.
Pursuant to s149C(7) the Health Practitioner Regulation National Law (NSW) the Respondent Practitioner may not make any application for review of Order 1 of these orders for a period of 18 months from 17 December 2015.
The Registrar is requested to notify the Nursing and Midwifery Council of New South Wales of Order (1) and (2) of these orders as soon as practicable.
[17]
Suppression Orders
The Tribunal was asked to make a suppression order pursuant to s.64. The power to make that order is found in Schedule 5D, clause 7 of the National Law. The order was not opposed. The Tribunal is satisfied that it is appropriate to make such an order to protect the identity of Patient A, including anything that may tend to identify her.
[18]
Costs Order
The circumstances in which costs should be awarded was considered by the NSW Medical Tribunal in HCCC v Dinaker [2009] NSWMT 8, clause 13 of Schedule 5D to the National Law is for all relevant purposes in the same terms as the repealed clause 13 of Schedule 2 to the Medical Practice Act 1992 considered in Dinaker.
The Tribunal summarised the relevant principles as follows:
1. A successful party to litigation has a reasonable expectation of being awarded costs against the unsuccessful party.
2. Fairness dictates that the unsuccessful party typically bears the liability for costs, unless it is demonstrated that some other order is appropriate.
3. It is for the losing party to establish a basis for any departure from the usual rule; however, the purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made.
4. The discretion to depart from the usual rule is unfettered; however, a tribunal ought not exercise its discretion against the successful party arbitrarily or capriciously or on no grounds at all. The discretion must be exercise judicially and according to rules of reason and justice, not according to private opinion, benevolence or sympathy.
5. Generally, the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party.
This summary is consistent with the reasoning of the New South Wales Court of Appeal in Ohn v Walton (1995) 36 NSWLR 77. In that case the Court held that the principles to be applied by the Medical Tribunal in the exercise of its discretion to award costs under Regulation 27 are similar to those applied by a court in similar circumstances, so that costs should follow the event unless the circumstances of the case require the exercise of a discretion not to do so: 79B, 81A, 85E. Gleeson CJ stated (at 79B) that the nature of an order for costs applies equally:
"[T]o civil litigation, summary proceedings and disciplinary proceedings. This does not mean that the discretionary considerations relevant to those proceedings are identical. However, the subject of the discretion; that is, an order for costs, has the same nature, and that guides the exercise of the discretion."
In HCCC v Greenwood [2011] NSWNMT 13 the Tribunal accepted a submission by the Commission that significant financial hardship of a respondent did not of itself militate against the making of a costs order.
The Commission submits its entitlement to an order for costs in its favour against the Respondent is established in light of the authorities.
The Tribunal makes an order that the Respondent pay the Commission's costs in the proceedings.
[19]
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
[20]
Amendments
07 June 2016 - Amendment to coversheet and paragraphs 82, 83 and 84
05 September 2016 - Coversheet and Orders amend text from 2 years to 18 months
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: 05 September 2016