Health Ombudsman v Passmore [2020] QCAT 92

[2] The respondent is 68 years of age and was first registered as a registered nurse in 1978. The respondent has no previous disciplinary history and had not been the subject of a complaint in nearly 40 years of work as a nurse until the matter the subject of the referral.

[3] The parties are agreed as to the facts of the matter, including the conduct the subject of the referral, its characterisation as professional misconduct and unprofessional conduct, and have reached an agreed position as to the appropriate sanction.

[4] The referral particularises two charges, one of alleged professional misconduct and one of alleged unprofessional conduct.

[5] Charge 1, the allegation of professional misconduct, particularises events on 23 August 2014 in which it is alleged the respondent engaged in sexual misconduct by inappropriately touching the complainant in his home without permission.

[6] Charge 2, the allegation of unprofessional conduct, alleges a breach of professional boundaries by way of the respondent, on 23 August 2014, failing to maintain professional boundaries by attending the complainant's home after being invited there by the complainant to discuss some issues he was having, taking alcohol to the complainant's home and consuming it in his presence with knowledge that the complainant had issues with alcohol dependency.

[7] Although particularised as separate charges of professional misconduct and unprofessional conduct respectively, both charges relate to one course of conduct on the part of the respondent. Before detailing the facts of such course of conduct, some relevant background is as follows.

[8] The complainant was aged in his early fifties at the time of the conduct the subject of the referral. The complainant had been referred to an alcohol and drug service in 2013 and was a patient of such service between April 2013 and February 2014. The respondent was involved in clinical care of the complainant from 23 April 2013 to 30 January 2014, during which time the complainant attended the service on a weekly or fortnightly basis.

[9] The last clinical appointment on which the respondent cared for the complainant was on 30 January 2014. At that time, following a request from the patient, the respondent provided the patient with her personal mobile number written on the service's business card and advised the patient that he could contact her if he considered that he needed to speak to someone regarding his condition after he had been discharged from the service.

[10] There was no contact between the respondent and the complainant between the end of January 2014 and August 2014. On or about 20 August 2014, the complainant telephoned the respondent's mobile phone number and left a voicemail message asking if she was available to see him because he was having some issues. The complainant called again on 22 August 2014 and left another message. On 22 August 2014, the respondent returned the complainant's telephone call and agreed to visit his home.

[11] The respondent arrived at the complainant's home the next day, 23 August 2014, at about 3.45 pm and met the complainant upon his return home at about 4 pm. The respondent and the complainant both sat on the veranda of the complainant's residence and had a discussion about some issues the complainant had been having. It had become dark by the time the complainant asked the respondent whether she wanted a beer. The respondent, remembering that she had a bottle of red wine in her car, retrieved the red wine and proceeded to drink the wine while the complainant drank the beer he had retrieved for himself. The respondent offered the complainant a glass of wine. The complainant had one glass of wine and the respondent drank the remainder of the bottle over the course of the evening.

[12] The complainant and the respondent watched a music DVD inside the house and the respondent started to sing and dance along to the music. The respondent became verbally and physically flirtatious with the complainant. He went to leave the room and the respondent kissed him. The complainant moved away from the respondent and went outside. The respondent went outside to join the complainant and asked him what was wrong. She sat down in a chair next to him and began touching his hair and rubbing his leg. The complainant stood up, went inside the house and started to prepare dinner. He was standing at the kitchen bench when the respondent approached him from behind, put her arms around him and started sliding her hands up and down his body over his crotch and genital area. The complainant used the back of his body to push the respondent away before turning around and telling her to stop. The respondent attempted to kiss the complainant on the lips. The complainant again said "no" and "stop".

[13] The respondent went and sat down in the lounge room and, after a short space of time, went to the toilet, where she remained for 30 to 40 minutes. Whilst she was in the toilet, the complainant contacted a friend by Facebook Messenger, complaining that the respondent was at his home and he felt scared and trapped. After the respondent came out of the toilet, the complainant went inside and locked himself in. The respondent had vomited in the toilet, on the toilet floor and wall. Whilst in the toilet, the complainant messaged his friend about what was occurring.

[14] The complainant left the toilet and went to sit back outside on the veranda. The respondent sat in a chair next to the complainant and began to touch his legs and face. The complainant asked the respondent to leave. The respondent agreed to leave and left.

[15] The respondent telephoned the complainant soon afterwards, apologising and asking if she could contact him the following day. On 24 August 2014, the complainant received a text message from the respondent in which she expressed her apologies, stated she normally did not drink so much and obviously could not tolerate so much wine. She stated that she had a lot of respect for the complainant, was feeling unwell, embarrassed and depressed, and hoped that he could forgive her.

[16] The respondent and the complainant have not had any contact since 24 August 2014.

[17] The parties jointly submit that the respondent's conduct in inappropriately touching the complainant in his home without permission should be characterised as professional misconduct. The parties further jointly submit that the conduct the subject of Charge 2; that is, the attendance at the complainant's home and consuming alcohol in his presence; should be characterised as unprofessional conduct.

[18] The Tribunal has no hesitation in deciding that the conduct the subject of Charge 1 should be characterised as professional misconduct.

[19] The Tribunal regards the conduct the subject of Charge 2 as a serious example of a boundary violation. The Tribunal would have been prepared to find that such conduct was unprofessional conduct substantially below the standard reasonably expected of a registered nurse of an equivalent level of training and experience as the respondent and, as such, professional misconduct as defined in s 5 of the Health Practitioner Regulation National Law (Queensland). However, in circumstances where both parties have requested that this matter be dealt with on the papers, a decision to characterise the conduct more seriously than that jointly submitted by the parties would constitute a denial of procedural fairness to the respondent.

[20] In those circumstances, the Tribunal decides, in relation to Charge 1, that the respondent has behaved in a way that constitutes professional misconduct. The Tribunal decides, in relation to Charge 2, that the respondent has behaved in a way that constitutes unprofessional conduct.

[21] After initially speaking to police about making a complaint, the complainant made a complaint to the respondent's employer on 31 August 2014. The respondent was reassigned to non-direct care.

[22] The respondent's employer notified the Office of the Health Ombudsman on 2 October 2014. On 22 January 2015, the Office of the Health Ombudsman took immediate registration action and imposed conditions on the respondent's registration, requiring her to undertake an education program and to be subject to direct supervision of another registered nurse in her clinical practice.

[23] The respondent resigned from her employment on 9 January 2015. She did not renew her registration after 31 May 2016 and has remained unregistered since that time. The respondent has no intention of returning to the nursing profession.

[24] In considering the appropriate sanction, the Tribunal must be mindful that the main principle for administering the HO Act is that the health and safety of the public are paramount. The purposes of sanction are protective, not punitive. Protection of the public includes the maintenance of professional standards and upholding public confidence in the standards of the profession.

[25] The parties have referred to other Tribunal decisions in relation to boundary violations and the sanctions imposed in those cases: Nursing and Midwifery Board of Australia v Tainton [2014] QCAT 161 and Nursing and Midwifery Board v Evans [2016] QCAT 77.

[26] The parties jointly submit that the protective purposes of sanction can be properly met by the findings of professional misconduct and unprofessional conduct along with the imposition of a reprimand.

[27] The parties have referred to matters in mitigation. The boundary violation spanned a period of hours and did not involve any ongoing relationship with a current or former patient. It did not occur in the context of an ongoing therapeutic relationship. The respondent immediately apologised to the complainant and acknowledged the distress that her actions had caused him before ceasing further contact with him. The parties have jointly submitted that the respondent has demonstrated insight into the wrongness of her conduct. It is significant that the respondent has already suffered significant consequences as a result of her conduct. Her lengthy and otherwise blameless nursing career was brought to a premature end and she suffered the financial consequences associated with that.

[28] The parties have jointly submitted that protection of the public does not require any orders by way of restriction on the respondent's future practice. She has no intention of returning to the nursing profession and would face considerable difficulties, including requirements of recency of practice, should she choose to return to the profession. Furthermore, she would need to satisfy the Nursing and Midwifery Board of Australia as to her suitability to practise.

[29] In these circumstances, the parties jointly submit that no further order for sanction other than a reprimand is appropriate.

[30] Notwithstanding the agreement of the parties, the matter of sanction remains one to be determined by the Tribunal. The Tribunal, however, ought not to depart from a proposed agreed sanction unless it falls outside a permissible range of sanction for the conduct.

[31] The Tribunal agrees that an appropriate order for sanction is one of a reprimand. The respondent's conduct deserves denunciation by the Tribunal.

[32] The parties jointly submit that each party should bear their own costs, and that will be reflected in the orders of the Tribunal.

[33] Accordingly, the Tribunal orders as follows:

1. In relation to Charge 1, pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
2. In relation to Charge 2, pursuant to s 107(2) (b)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes unprofessional conduct.
3. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
4. Each party to the proceeding must bear the party's own costs for the proceeding.