BETWEEN : NURSING AND MIDWIFERY BOARD OF AUSTRALIA

Nurse practitioner ­ Health Practitioner Regulation National Law (WA) Act 2010 ­ Sexual misconduct with patients ­ Registration cancelled

Health Practitioner Regulation National Law (WA) Act 2010, s (3)(1), s 5, s 6, s 7(3), s 9, s 31, s 39, s 41, s 138, s 193, s 193(1)(a)(i), s 193(2)(a)(i), s 194(b), s 196(1)(b)(iii), s 196(2), s 222

State Administrative Tribunal Act 2004 (WA), s 15, s 15(1), s 16(1), Pt 4

Respondent found to have engaged in professional misconduct

The respondent, who was a nurse at a mental health unit at a hospital, was found to have engaged in a sexual relationship with another patient and to have breached his obligations of confidentiality in communicating patient information to one of those patients.

The Tribunal found that the practitioner's conduct constituted professional misconduct.

A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253

A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253

Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 118 ALR 54

Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Craig v Medical Board of South Australia [2001] SASC 169

Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113

Health Care Complaints Commission v Dr Baez [2014] NSWCATOD 3

Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992)

Law Society of New South Wales v Foreman (1994) 34 NSWLR 408

Law Society of New South Wales v Walsh [1997] NSWCA 185

Legal Practitioners ComplaintsCommittee v Thorpe [2008] WASC 9

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S)

Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)

Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124

Legal Profession Complaints Committee and Leask [2010] WASAT 133

Legal Profession Complaints Committee v Brickhill [2013] WASC 369

Legal Profession Complaints Committee v Detata [2012] WASCA 2014

Legal Profession Complaints Committee v Lashansky [2007] WASC 211

Legal Profession Complaints Committee v Love [2014] WASC 389

Legal Profession Complaints Committee v Masten [2011] WASC 71

Legal Profession Complaints Committee v Segler [2014] WASC 159

Legal Profession v O'Halloran [2013] WASC 430

Medical Board of Western Australia and Bham [2006] WASAT 190

Medical Board of Western Australia and Wright [2010] WASAT 48

New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

NSW Bar Association v Hamman [1999] NSWCA 404

Quinn v Law Institute of Victoria [2007] VSCA 122

Re A Practitioner (1984) 36 SASR 590

Re Maraj (a Legal Practitioner) (1995) 15 WAR 12

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Stirling v Legal Services Commissioner [2013] VSCA 374

1 Section 4 of the Health Practitioner Regulation National Law (WA) Act 2010 (the Act) provides that the Health Practitioner Regulation set out in the Schedule to the Act (the National Law) applies as a law of this jurisdiction.

2 On 19 May 2014, the Nursing and Midwifery Board of Australia (the Board) filed an application seeking orders pursuant to s 196(2) of the National Law, including orders that the registration of Mr Timothy Buckby (the practitioner) be suspended for a period to be determined by the Tribunal, or that the practitioner's registration as a nurse practitioner under the National Law be cancelled. That application arose as a result of allegations involving Patient A.

3 On October 2014, the application was amended as a result of allegations involving Patient B.

4 The allegations arise from interactions between the practitioner and Patient A and Patient B at the Joondalup Health Campus Mental Health Unit (the Unit).

5 It is alleged that the practitioner engaged in behaviour that constitutes professional misconduct in that the practitioner engaged in a sexual relationship with Patient A while she was an inpatient at the Unit and that he engaged in sexual relations with her following her discharge from the Unit. It is alleged that he revealed to Patient A confidential information relating to another patient. It is further alleged the practitioner had a sexual relationship with Patient B while she was an inpatient at the Unit.

7 Section 3(1) of the National Law provides that the object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners, including nurse practitioners.

8 Western Australia is a 'participating jurisdiction' for the purposes of the National Law as defined in s 5 of the National Law.

9 Section 222 of the National Law and the corresponding enactments of other participating jurisdictions require National Boards to keep a 'public national register' which is to include the names of all health practitioners registered by the National Boards.

10 At the time that the conduct the subject of the application occurred, the practitioner was a 'registered health practitioner' for the purposes of s 5 of the National Law in that he was registered by the Board, being a national entity established under the National Law.

11 This matter was referred to the Tribunal under s 193(1)(a)(i) of the National Law. The jurisdiction of the Tribunal upon a referral by Board does not involve a review of a decision. Consequently, this matter falls within the Tribunal's original jurisdiction (see: s 15(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In exercising the Tribunal's original jurisdiction, the Tribunal is to deal with the matter in accordance with the SAT Act and the National Law as the enabling Act (s 16(1) of the SAT Act).

12 The term 'professional misconduct' is defined in s 5 of the National Law as conduct which includes:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]

13 The first and second limbs of the definition of 'professional misconduct' incorporate the term 'unprofessional conduct' which is in turn defined in s 5 of the National Law as:

[P]rofessional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers[.]

14 In Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113, the New South Wales Civil and Administrative Tribunal stated:

1. Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:

[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.

1. The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:

... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence[.]

1. Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views 'in terms of strong criticism'. (Lucire v Health Care Complaints Commission [2011] NSWGA 99 at 84; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705).

15 The Board bears the onus of proof. It is to the civil, not criminal standard, but the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

16 By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [44].

17 Section 39 of the National Law provides that the Board may develop and approve codes and guidelines

An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession.

19 Under s 39 of the National Law, the Board has developed and approved:

1. the Code of Professional Conduct for Nurses in Australia;
2. a Code of Ethics for Nurses in Australia; and

20 The Code of Professional Conduct relevantly provides:

A breach of the Code may constitute either professional misconduct or unprofessional conduct. For the purposes of this Code, professional misconduct refers to 'the wrong, bad or erroneous conduct of a nurse outside of the domain of his or her practice; conduct unbefitting a nurse' (e.g. sexual assault, theft, or drunk and disorderly conduct in a public place]. Unprofessional conduct refers to 'conduct that is contrary to the accepted and agreed practice standards of the profession' (e.g. breaching the principles of asepsis; violating confidentiality in the relationship between persons receiving care and nurses).

The nursing profession expects nurses will conduct themselves personally and professionally in a way that maintains public trust and confidence in the profession. Nurses have a responsibility to the people to whom they provide care, society and each other to provide safe, quality and competent nursing care.

...

Nurses treat personal information obtained in a professional capacity as private and confidential

Explanation

...

1. Nurses have ethical and legal obligations to protect the privacy of people requiring and receiving care. This encompasses treating as confidential information gained in the course of the relationship between those persons and nurses and restricting the use of the information gathered for professional purposes only.

Conduct Statement 8

Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care

1. An inherent power imbalance exists within the relationship between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation. Nurses actively preserve the dignity of people through practised kindness and respect for the vulnerability and powerlessness of people in their care. Significant vulnerability and powerlessness can arise from the experience of illness and the need to engage with the health care system. The power relativities between a person and a nurse can be significant, particularly where the person has limited knowledge; experiences pain and illness; needs assistance with personal care; belongs to a marginalised group; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and persons in their care that must be recognised and managed.
2. Nurses take reasonable measures to establish a sense of trust in people receiving care that their physical, psychological, emotional, social and cultural wellbeing will be protected when receiving care. Nurses recognise that vulnerable people, including children, people with disabilities, people with mental illness and frail older people in the community, must be protected from sexual exploitation and physical harm.
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.
4. Nurses fulfil roles outside the professional role, including those as family members, friends and community members. Nurses are aware that dual relationships may compromise care outcomes and always conduct professional relationships with the primary intent of benefit for the person receiving care. Nurses take care when giving professional advice to people with whom they have a dual relationship (e.g. a family member or friend) and advise them to seek independent advice due to the existence of actual or potential conflicts of interest.
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.

21 A Nurse's Guide to Professional Boundaries relevantly states:

What are professional boundaries?

...

The community trusts that nurses will act in the best interest of those in their care and that the nurse will base that care on an assessment of the individual's specific needs. The power imbalance present in a professional relationship places the recipients of care in a position of vulnerability and of potential exposure to exploitation or abuse if that trust is not respected. Nurses have a responsibility to ensure that a relationship based on plans and goals that are therapeutic in intent and outcome is maintained. This means that it is the responsibility of the nurse to maintain their professional and personal boundaries, as well as assisting colleagues and the people in their care, in maintaining theirs.

Professional boundaries in nursing are defined as limits which protect the space between the professional's power and the client's vulnerability; that is they are the borders that mark the edges between a professional, therapeutic relationship and a non-professional or personal relationship between a nurse and a person in their care. When a nurse crosses a boundary, they are generally behaving in an unprofessional manner and misusing the power in the relationship.

In order to manage these professional boundaries we need to appreciate that:

An inherent power imbalance exists within the relationship between people receiving care and nurses that make the persons in their care vulnerable and open to exploitation. Nurses actively preserve the dignity of people through practiced kindness and respect for the vulnerability and powerlessness of people in their care.... This vulnerability creates a power differential in the relationship between nurses and persons in their care that must be recognised and managed.

Professional boundaries at the over involvement end of the continuum

Professional boundaries separate the therapeutic behavior of the nurse from any behavior, well intentioned or not, that could lessen the benefit of care to people, families and communities. Boundaries give each person a sense of legitimate control in a relationship. Professional boundaries are the limits to the relationship of a nurse and a person in their care which allow for a safe, therapeutic connection between the nurse and that person [and their nominated partners, family and friends].

The power of the nurse comes from the professional position and their access to private knowledge about the person in their care. Establishing boundaries allows the nurse to manage this power differential and allows a safe connection to meet the person's needs. Professional relationships exist only for the purpose of meeting the needs of the person in a nurse's care.

...

Sexual misconduct is an extreme form of boundary violation and includes any behaviour that is seductive, sexually demeaning, harassing or reasonably interpreted as sexual by the person who is in a therapeutic relationship with a nurse. Sexual misconduct is sexual assault.

Sexual misconduct by a nurse is an extremely serious violation of the nurse's professional responsibility to the person in their care. Even if the person (or their legal representative) consents, or the person initiates the sexual conduct it is still the nurse's responsibility to maintain the professional boundary in the relationship.

...

22 Similar principles are stated in the Code of Ethics for Nurses in Australia.

1. At all material times, the Respondent was employed as a registered nurse at Joondalup Health Campus Mental Health Unit (the Unit).
2. From on or about 13 February 2012 to on or about 27 February 2012, Patient A was a voluntary impatient at the Unit.
3. On an evening while Patient A was an inpatient at the Unit, the Respondent entered Patient A's room, sat on her bed and stroked Patient A's shoulder/neck while talking to her.
4. On a subsequent evening, the Respondent entered Patient A's room, closed the door, kissed Patient A, pushed his crotch against her and forced her to touch his penis.
5. On another occasion whilst Patient A was an inpatient at the Unit, the Respondent entered Patient A's room carrying towels and closed the door to the room.
6. While in Patient A's room, the Respondent instructed Patient A to lie down on the bed and covered her mouth with his hand, following which he pushed Patient A's legs apart, moved her underwear and inserted his penis into her vagina.
7. On several occasions following this event, the Respondent entered Patient A's room on the pretence of delivering towels and touched and kissed Patient A.
8. Following Patient A's discharge from the Unit on 27 February 2012, the Practitioner telephoned Patient A and asked her how she was, whether she was taking the same medication and words to the effect that 'it was boring not seeing her'.
9. On or about 4 April 2012, the Respondent telephoned Patient A's mobile phone on five occasions.
10. On 19 April 2012, the Respondent telephoned Patient A from his mobile phone.
11. On 4 May 2012, the Respondent telephoned Patient A from his mobile phone.
12. On various other occasions following Patient A's discharge from the Unit, the Respondent telephoned Patient A's mobile phone from a landline at the Unit.
13. On two occasions following Patient A's discharge from the Unit, the Respondent attended at Patient A's home and engaged in sexual intercourse with Patient A.
14. On other occasions, the Respondent requested Patient A to meet him in the car park near Joondalup Health Campus, instructing Patient A as to where she should park her car. On each occasion, the Respondent requested and was provided with oral sex by Patient A.
15. During various conversations between the Respondent and Patient A following her discharge from the Unit, the Respondent disclosed confidential patient information, including information related to the death of a young female patient at the Unit, to Patient A.
16. On 22 June 2012, Patient B was admitted to the Unit as a voluntary patient.
17. On a day shortly after her admission to the Unit, Patient B was crying.
18. The following day, the Respondent came into Patient B's bedroom and stated that he was concerned that she had been so upset the previous day and he wished to give her a hug.
19. The Respondent then hugged Patient B.
20. From that day, the Respondent would regularly attend at Patient B's room on the Unit and close the door, following which he and Patient B would kiss and hug each other.
21. On several occasions during Patient B's admission at the Unit, the Respondent would leave his rostered shift on the Psychiatric Intensive Care Unit at Joondalup Health Campus (PICU) and attend the Unit to meet Patient B in her room.
22. On or about 9 July 2012, Patient B reported to a psychologist, Sonette Sudweeks, that she was having a 'fling' with the Respondent and that they had been kissing in her room.
23. Staff at the Unit also received an independent report of the relationship between Patient B and the Respondent from Patient B's room­mate at the Unit.

24 On 2 December 2014, the Tribunal ordered that the matter be listed for a final hearing to commence at 10 am on 4 February 2015, for a duration of three days. At that time, the practitioner was represented by solicitors and the Tribunal can infer that he was given notice of the hearing day by his solicitors.

25 In early January 2015, the practitioner's solicitors withdrew from the record. The Board attempted to contact the practitioner without success. Staff of the Tribunal also telephoned the practitioner to endeavour to contact him.

26 We are satisfied that the practitioner was aware of the date of the hearing and that he was informed by his then solicitors. In accordance with the requirements of s 9 of the SAT Act, it was appropriate that the matter proceed to hearing in the absence of the practitioner.

27 Oral evidence was given by Patient A, Patient B, Ms Sonette Sudweeks, a psychologist, and Mr Jason Mingyun Goh, a psychologist. Although he attended, no questions were asked of Mr Goh beyond verifying his statement. The statements of Ms Felicity McCallum (no relation to the member) and Ms Gemma Steven were accepted in writing without the necessity to call them. Those six witness statements were admitted as Exhibit 3.

28 Exhibit 1 was the Board's Book of Documents. Exhibit 2 was the Board's supplementary Book of Documents. Exhibit 4 comprised the Code of Ethics for Nurses in Australia, A Nurse's Guide to Professional Boundaries and the Code of Professional Conduct for Nurses in Australia.

30 On 12 August 2012, she was admitted to the Unit by her psychiatrist, Dr Cleanthe Louw, for treatment of post-traumatic stress disorder following a car accident in April 2011 and workplace bullying.

31 At the time of her admission, Patient A was suffering from anxiety, depression, suicidal thoughts and suicidal ideation and felt fearful of authority figures.

32 Patient A was discharged from the Unit on 17 August 2011 and readmitted on 13 February 2012.

33 A letter from Dr Louw, dated 13 February 2012, sets out the basis for Patient A's admission to the Unit. The report notes:

She [Patient A] is overwhelmed with despair and fear and presents with increasing depression and suicidal ideation (intermittent). Her effect is labile, although initially, she may present well in appearance, she tends to mask her emotional state, but very quickly becomes tearful, agitated, and fearful. There is no evidence of thought disorder or psychotic features.

(Exhibit 1, pages 72 ­ 73)

34 Dr Louw's letter noted that Patient A would need to recommence Desvenlafaxine 200 milligrams a day, that she was also on Lorazepam 2.5 milligrams BD, Quetiapine 50-100 milligrams nocte and Temazepam 20 milligrams nocte. Patient A was heavily medicated.

35 The letter further noted that Patient A was trying to get her son's father to care for him so she could be admitted to hospital.

36 The psychiatric discharge summary prepared by Dr Louw, dated 15 March 2012 (Exhibit 1, pages 70 ­ 71) noted Patient A's history of depression and post traumatic stress disorder. It is further noted that Patient A was involved in a stressful medico­legal situation and was being followed by a private investigator who was photographing her.

37 It is apparent that prior to, during and post admission, Patient A was extremely vulnerable. It is also apparent that she was particularly vulnerable to authority figures, including nurses.

38 Following Patient A's admission on 13 February 2012, she shared a room with another patient. The other patient spent a lot of time sleeping as a result of that patient's medication.

39 The practitioner was not one of the nurses assigned to Patient A.

40 One night following her 13 February 2012 admission to the Unit, Patient A was awoken by the practitioner who placed his left hand on the top of her right shoulder and then stroked her shoulder and neck. Patient A was 'groggy' when she woke up as a result of taking her evening medication. Amongst other things, the practitioner said to Patient A, 'Ssh, be quiet or you'll get into trouble'.

41 Subsequently, at about 7.30 pm one evening, Patient A was alone in her room when the practitioner entered the room holding towels and stood very close to her. The practitioner then grabbed the back of Patient A's head and pulled it towards his face. He kissed Patient A and then moved towards her pushing his crotch into her. As he was doing so he made comments such as 'You like it, don't you? Feel this, god you are nice', and 'you want me, don't you' (Exhibit 1, page 7). Although Patient A said 'no', the practitioner continued to push himself towards her. Again, the practitioner stated 'Sssh, it's okay. It's all right. Be quiet or you'll get into trouble. You don't want to go into the locked side, do you?' (Exhibit 1, page 7) The practitioner then said 'feel this', and pulled her hand towards his erect penis. He then used one hand to grab her breasts, squeezing and pulling them, which was painful. The whole time he was pressing himself against Patient A, he was saying, 'Ssh, ssh, be quiet, you can get into trouble'. He then left the room.

42 On another date during the February 2012 admission, the practitioner again entered Patient A's room with towels. On this occasion he told her to lie down on the bed. Patient A said 'stop it'. He said to her that she must be quiet. She explained that the practitioner looked angry. He then used his left hand to cover her mouth and told her quietly but sternly to 'be quiet'. Patient A said that she was 'petrified'. The practitioner unbuckled his belt, pulled his erect penis out and said, 'Just let me put it in a bit'. He then sexually penetrated her vagina. Despite her efforts, her begging the practitioner to stop and her statements that 'I can hear someone coming', the practitioner did not stop. He only stopped when Patient A eventually pushed him off.

43 After this incident, the practitioner would come into Patient A's room at random and kiss and touch Patient A while her roommate was asleep.

44 On most occasions when the practitioner came into her room he would do so on the pretext that he was delivering towels.

45 Patient A was discharged from the Unit on about 15 March 2012. After she had been discharged the practitioner phoned her on a landline on a number of occasions. Patient A is now aware that that landline was in the office at the Unit of her now psychologist, Ms Sonette Sudweeks. The practitioner also called Patient A using his mobile phone. Records of these calls appear in Exhibit 1 and Exhibit 2. During those calls, the practitioner asked Patient A if she would meet him near the hospital while he was working. Although Patient A resisted seeing the practitioner, he stated words to the effect, 'I know where you live. I've looked in your file and know about you'. On these occasions he had made comments to Patient A to the effect:

... 'you know you want me,' 'you can't say anything or you will get into trouble,' and 'if social services knew, you could lose your son.'

46 On two occasions the practitioner visited Patient A at home. On one occasion, despite Patient A trying to avoid sexual contact he sexually penetrated her vagina. On another occasion, he pulled Patient A's head towards his crotch area and she then performed oral sex on the practitioner.

47 Subsequently, there were meetings in a carpark near the Unit when the practitioner unbuckled his pants and asked Patient A to give him oral sex. On each occasion she refused.

48 On both occasions when the practitioner visited Patient A at her home, he gave her information about his time in England. In particular, as stated at paragraphs 148 and 149 of Patient A's statement:

[The practitioner said] that while he was working at Rampton [an institution for the criminally insane], he was in charge of some 'real psychos' who were 'mentally insane' and 'who've got no chance of ever getting out.'

When he said these words, he glared at me, as though it was a threat.

49 The practitioner gave information to Patient A about other patients at the Unit. Details of that information are set out paragraphs 150 ­ 155 of Patient A's statement.

50 Following these incidents Patient A told her hairdresser about what the practitioner had done. The written statements of Patient A's hairdresser substantially corroborate the evidence given to the Tribunal by Patient A.

51 The Tribunal asked Patient A why she had not reported the incidents while she was in the Unit. She stated words to the effect that she was on her own, and that the practitioner had said, 'I know you've got a son. If you say anything, your son can be taken away'. Patient A was concerned that no one would ever believe her. This is consistent with her general evidence of the threats made to her by the practitioner.

52 Due to the absence of Mr Buckby, or any legal representative on his behalf, there was no cross­examination of Patient A. It is apparent from questions asked both by counsel for the Board and by members of the Tribunal that Patient A was giving her evidence in a truthful manner. There was no hesitation in her answers. The Tribunal accepts that she gave her evidence as honestly as possible and that it was accurate.

54 She was admitted to the Unit on or about 22 June 2012 due to ongoing problems with depression. She had been admitted to the Unit previously.

55 Patient B's Psychiatric Discharge Summary (Exhibit 1, page 75) states:

Presented with a 3 week history of deterioration in mood, social withdrawal, decreased concentration, motivation, hopelessness and feeling guilty. She also said that she had initial and terminal insomnia and was only getting 2-3 hours of sleep per night.

...

She has a background of 30 years of recurrent depression and has tried various anti-depressants without good effect.

56 It is apparent that prior to and during her admission to the Unit, Patient B was extremely vulnerable.

57 The practitioner was not one of Patient B's assigned nurses.

58 Later, at some stage during her time in the Unit she was extremely upset and crying and the practitioner came into the room and spoke with her. He asked her what was wrong and she told him everything about herself. She told him that she was extremely lonely and wanted to meet someone that cared for her and that she could be with.

59 Patient B attended a cafe in the hospital where the Unit is situated and purchased takeaway coffee. The practitioner joined her.

60 As Patient B and the practitioner returned to the ward, the practitioner asked if she would like to have her coffee outside in the park. Patient B declined. Patient B described herself as being uncomfortable about being with him. She returned to her room and the practitioner walked in and then walked over to her and kissed her on the mouth. From that point on, the practitioner would frequently come into Patient B's room to see if they could kiss and cuddle.

61 Patient B never sought the practitioner out or tried to get the practitioner alone. The practitioner instigated every move and all of their meetings.

62 Patient B told her roommate about what was happening with the practitioner. She told her roommate that she was flattered by the attention he was showing.

63 Patient B also describes the practitioner as bringing towels and carrying them into her room as a pretext for visiting her room.

64 Ultimately, during a consultation with Ms Sudweeks, her treating psychologist at the Unit, Patient B told Ms Sudweeks about what was happening with the practitioner. Patient B had said to Ms Sudweeks, 'If you tell something, can you promise me you won't say anything'. However, due to the mandatory reporting requirements of the National Law, Ms Sudweeks did report the content of the conversation and the following day Patient B was called into the boardroom at the Unit for a meeting with various people, many of whom Patient B had never met before. Patient B found the meeting to be terrifying.

65 Following that meeting Patient B gave evidence that she felt isolated on the Unit and that no one would talk to her. She described herself as very alone and that she just wanted to go home. Patient B discharged herself from the Unit against the advice of the staff (Exhibit 1, page 83).

66 Patient B said that as a result of feeling isolated on the Unit, she told Mr Goh that she had made up the story and she no longer wanted to seek compensation for what had occurred. During the course of her oral evidence she stated that she had not said to anyone that she wanted to seek compensation.

67 Patient B's roommate, in her written statement, gave evidence of the practitioner attending Patient B's room, although the practitioner had not been assigned as Patient B's nurse. Patient B's roomate's evidence otherwise substantially corroborates Patient B's evidence as to a relationship between Patient B and the practitioner which involved kissing.

68 Ms Sudweeks gave evidence concerning both Patient A and Patient B. Although Ms Sudweeks was a senior psychologist at the Unit at the time that Patient A was admitted, she was not Patient B's treating psychologist at the time and did not have any direct contact with her during the admission.

69 Her involvement with Patient A arose as a result of being referred for private psychotherapy by her treating psychiatrist, Dr Louw, subsequent to Patient A's discharge from the Unit.

70 Ms Sudweeks first telephoned Patient A's mobile from her room at the Unit, This was the room and the phone that had been used by the practitioner to call Patient A at her home. Ms Sudweeks gave evidence that Patient A's reaction to her phone call was unusual in that it was short, abrupt and anxious. She subsequently arranged to meet Patient A in October 2013. Patient A explained that she had been distressed when she saw the telephone number come up on her telephone and did not want to take the call from that number because she thought the call was from the practitioner.

71 During the course of the consultation it became apparent to Ms Sudweeks that something other than what she was discussing was upsetting Patient A. Patient A advised Ms Sudweeks that something had happened to her when she was an inpatient at the Unit and that until then she had not spoken to anyone about it except for a very good friend who was a hairdresser. Patient A then became extremely emotional and upset and disclosed the sexual abuse by the practitioner.

72 Ms Sudweeks also gave evidence of events involving Patient B. During the course of her treatment of Patient A, Ms Sudweeks noticed an improvement in Patient B's mood. Patient B then told her about the relationship that had developed with the practitioner and that they had been kissing in her room.

73 Ms Sudweeks' evidence substantially corroborates the evidence of Patient A and Patient B.

74 Again, due to the absence of Mr Buckby, or any legal representative on his behalf, there was no cross­examination of Patient B. It is apparent from questions asked both by counsel for the Board and by members of the Tribunal that Patient B was giving her evidence in a truthful manner. There was no hesitation in her answers. The Tribunal accepts that she gave her evidence as honestly as possible and that it was accurate.

75 The Tribunal is satisfied to the Briginshaw standard that the events described by Patient B in fact happened.

76 The Tribunal finds the matters of fact alleged by the Board in respect of Patient A proved to the Briginshaw standard except for paragraphs 14 and 15.

77 In relation to paragraph 14, the Tribunal only finds one incident of sexual intercourse established during the practitioner's visit to Patient A's home. On the second occasion, Patient A gave the practitioner oral sex. It is not clear if sexual intercourse also took place. Patient A does refer to saying certain words so that the practitioner 'would get off me', which may imply that the practitioner was on top of Patient A having sexual intercourse. However, there is no explicit statement that sexual intercourse took place. (see Exhibit 3, page 19, paragraphs 136 ­ 142). Accordingly, we find that only one act of sexual intercourse took place.

78 In relation to paragraph 15, it is not clear that Patient A gave the practitioner oral sex. Patient A stated that she refused to. She did not state that oral sex took place despite her refusal. Accordingly, we do not find that oral sex took place.

79 The Tribunal finds the matters of fact alleged by the Board in respect of Patient B proved to the Briginshaw standard.

80 The findings above form the basis for the Board's allegations of professional misconduct. Those allegations are that the practitioner:

1.1 acted in breach of the professional boundaries of a registered nurse by:

(a) entering into an intimate relationship with Patient A when he knew (or ought reasonably to have known), that Patient A was in a vulnerable mental state;

(b) engaged in a sexual relationship with Patient A;

(c) telephoned Patient A on numerous occasions; and

(e) hugging and kissing Patient B whilst she was an inpatient at the Unit when he knew or ought reasonably to have known, that Patient B was of a vulnerable mental state; and/or

1.2 has engaged in a pattern of conduct:

1.3 acted contrary to the guidelines for maintaining professional boundaries published by the Applicant;

1.4 acted contrary to the Code of Professional Conduct for Registered Nurses in that he failed to promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care;

1.5 acted in a matter inconsistent with the Code of Ethics for Nurses; and

1.6 breached patient confidentiality by disclosing information about patients on the Unit to Patient A.

81 The Board did not allege that Mr Buckby's conduct constituted professional misconduct by sexual assault.

82 The professional misconduct alleged against the practitioner by the Board does not reflect the seriousness of the facts alleged. However, in the absence of Mr Buckby, it would be inappropriate to assess his professional misconduct other than as alleged by the Board.

83 The practitioner's conduct in relation to Patient A was:

1. in breach of the Code of Professional Conduct, Paragraph 8, Explanation 5; and
2. A Nurse's Guide to Professional Boundaries,

84 The conduct identified in paragraph 15 of the allegations was in breach of the Code of Professional Conduct, Conduct Statement 5, Explanation 1.

85 Patient A was vulnerable. The practitioner's conduct was a gross violation of trust and of the professional boundaries that should exist between a patient and a nurse practitioner.

86 Each of the breaches of the Code of Professional Conduct and the Guide to Professional Boundaries constitute a breach of the appropriate professional conduct or practice for the nursing profession (s 41 National Law).

87 Patient A was plainly vulnerable when she was admitted to the Hospital because of her psychiatric condition.

88 In Health Care Complaints Commission v Dr Baez [2014] NSWCATOD 3 (Dr Baez), the Tribunal stated at 113:

The sexual exploitation of any patient is a matter of grave concern. The exploitation of a patient with known mental health issues is of even greater concern.

89 In the Tribunal's view, the conduct and statements and each instance of the same, contravene a right thinking person's standards.

90 The practitioner's conduct would reasonably be regarded by his professional brethren of good repute and competency as dishonourable. The practitioner's conduct would incur strong criticism from them. His conduct was an egregious departure from the elementary and generally acceptable standards of nurse practitioners. His conduct and comments portray indifference to Patient A and to her vulnerable state and were an abuse of the privileges which accompany registration as a nurse practitioner.

91 The Tribunal finds the practitioner guilty of professional misconduct.

92 The practitioner's conduct in relation to Patient B was:

1. in breach of the Code of Professional Conduct, Paragraph 8, Explanation 5; and
2. A Nurse's Guide to Professional Boundaries,

93 Patient B was vulnerable. The practitioner's conduct was a gross violation of trust and of the professional boundaries that should exist between a patient and a nurse practitioner.

94 Each of the breaches of the Code of Professional Conduct and the Guide to Professional Boundaries constitute a breach of the appropriate professional conduct or practice for the nursing profession (s 41 National Law).

95 Patient B was plainly vulnerable when she was admitted to the Hospital because of her psychiatric condition. The principle stated in Dr Baez applies equally to Patient B

96 In the Tribunal's view, the conduct and statements and each instance of the same, contravene a right thinking person's standards.

97 The practitioner's conduct would reasonably be regarded by his professional brethren of good repute and competency as dishonourable. The practitioner's conduct would incur strong criticism from them. His conduct was an egregious departure from the elementary and generally acceptable standards of nurse practitioners. His conduct and comments portray indifference to Patient B and to her vulnerable state and were an abuse of the privileges which accompany registration as a nurse practitioner.

98 The Tribunal finds the practitioner guilty of professional misconduct.

99 The Tribunal is empowered to imposed penalties pursuant to s 196(2), s 196(3) and s 196(4) of the National Law.

100 In its submissions filed on 5 February 2014, the Board sought the following orders:

16.1. a reprimand pursuant to section 192(2)(a) of the National Law;

16.2 a fine pursuant to section 196(2)(c) of the National Law in the sum of $30,000; and

16.3 an order pursuant to section 196(4)(a) of the National Law disqualifying the practitioner from applying for re-registration as a registered health practitioner for a period of five years.

101 Section 196 of the National Law provides that if a responsible tribunal, which for present purposes is this Tribunal, finds that a practitioner has behaved in a way that constitutes professional misconduct, it may decide to do one or more of the following:

...

(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -

(b) impose a condition on the practitioner's registration, including, for example -

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or (iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.

(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person from using a specified title or providing a specified health service.

102 The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at [41] (Craig); Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25 (Maraj); Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G - 441A - B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24] - [26]; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and at [77]).

103 The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37(S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).

104 It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267 - 268 and 271 - 272; A Solicitor [2004] NSW).

105 As the Tribunal explained in A Legal Practitioner (S) at [24]:

... [I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267 - 268 and 271 - 272[.]

106 In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:

1. any need to protect the public against further misconduct by the practitioner (Craig at [47]; Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foreman at 440C; Hamman at [77]);
2. the need to protect the public through general deterrence of other practitioners from similar conduct (Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992) (Jemielita); Johnson at [103]; Hamman at [77]);
3. the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S) at [8]; Foreman at 444F; and Hamman at [77] and at [79]), such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication if its disapproval (Craig at [64]; Johnson at [103]);
4. in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnson at [109]; Foreman at 445B ­ 445G);
5. whether the practitioner has breached any:

1. Guidelines or Code of Conduct, issued by the relevant professional body; and

1. whether the practitioner has done so knowingly;
2. whether the practitioner's conduct demonstrated incompetence, and if so, to what level;
3. whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E - 442G; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 (A Solicitor [2002] NSW) at [80]; Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 118 ALR 54 at 62 and 63);
4. the practitioner's disciplinary history (Legal Profession v O'Halloran [2013] WASC 430 at [93]);
5. whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 (Lashansky) at [31] - [52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]);
6. the desirability of making available to the public any special skills possessed by the practitioner;
7. the practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); and
8. The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).

107 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).

108 The dominant purpose of the disciplinary regulation of the nursing profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).

109 There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (A Legal Practitioner (S) at [5]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72] ­ [75]). Mr Buckby's conduct occurred over a number of days and involved two patients. It is appropriate to impose a penalty having regard to Mr Buckby's overall conduct rather than isolating certain incidents and imposing a penalty.

110 The jurisdiction of the Tribunal to cancel a practitioner's registration is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the nursing profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].

111 Where an order for cancellation of a practitioner's registration is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a nurse practitioner: A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 at [15].

112 A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Howe (No 2) at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Love at [17] - [18]; A Legal Practitioner (S) at [21] - [25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19] - [20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26] - [28]); Love at [17] - [18]).

113 Suspension is a less serious result and differs from cancellation of a practitioner's registration because suspension is for a specified limited period.

114 The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).

1. Is there a need to protect the public against further misconduct by Mr Buckby?

115 Trust is a fundamental aspect of the relationship between a patient and a nurse practitioner.

116 Both Patient A and Patient B were vulnerable and lonely persons. The practitioner was a professional in a position of authority on the ward. He took advantage of his position and each of Patient A and Patient B's vulnerability to enter into a 'relationship' with them. Neither Patient A nor Patient B could consent to a relationship with the practitioner in any meaningful sense. The power imbalance between them was simply too great.

117 The practitioner's conduct in relation to Patient A is so serious that there can be no question that there is a clear need to protect the public against that conduct. The practitioner's conduct towards Patient A was clearly non­consensual. The 'relationship' that took place thereafter cannot be isolated from the practitioner's conduct in the Unit. The practitioner's conduct thereafter was not consensual.

118 In the case of Patient B, the practitioner's conduct towards her was described as 'consensual'. However, his conduct represents a gross violation of the boundaries of trust between the practitioner and Patient B.

119 Mr Buckby's conduct and the circumstances in which it occurred evidence a clear need to protect the public against further misconduct by him.

2. Is there a need to protect the public through general deterrence of other practitioners?

120 It is axiomatic that many patients in the hospital system will be in the hospital system because of injury or ill health, physical and/or mental, that makes them vulnerable to others. Patients are especially vulnerable to the misconduct of nurse practitioners.

121 There is a need for a strong penalty to protect the public from misconduct through general deterrence of other nurse practitioners.

3. Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?

122 Sexual misconduct is anathema to the high professional standards expected of nurse practitioners. Any penalty must reflect the need to maintain nurse practitioners' high professional standards.

5. Breach of an Act, Regulations, Guidelines or Code of Conduct

124 The practitioner's sexual misconduct clearly breached the Codes and Guidelines set out above.

126 The sexual misconduct by the practitioner was not isolated. It occurred over a number of days and in relation to two patients. The practitioner's conduct cannot be seen as an isolated lapse of judgment.

127 The practitioner has no relevant disciplinary record prior to this matter.

9. Whether or not the practitioner understands the error of his ways, including an assessment of the any remorse and insight (or a lack thereof) shown by the practitioner

128 The practitioner did not attend the hearing. There is little information on which form a conclusion that the practitioner understood the error or his ways. We do note that he resigned from the Unit.

10. Are there any special skills possessed of the practitioner?

129 The practitioner does not possess any special skills that would influence any penalty to be imposed.

130 The practitioner did not attend the hearing and has not made any submissions. There is no basis for referring to his personal circumstances.

12. Are there any other matters related to the practitioner's fitness to practise?

132 The practitioner's conduct in relation to the patients the subject of the Tribunal's findings is serious.

133 The Tribunal has not made an order reprimanding the practitioner's behaviour. A reprimand is appropriate for conduct at the lower end of the penalties available to the Tribunal. The practitioner's conduct is not at the lower end.

134 The practitioner is permanently or indefinitely unfit to practise. He is not a fit and proper person to be a registered nurse practitioner. The Tribunal is satisfied that suspension is not an appropriate penalty.

135 The appropriate penalty is that the practitioner's registration is cancelled and he is disqualified from applying for re­registration as a registered health practitioner for a period of five years in relation to Patient A and two years in relation to Patient B. Although the incidents took place in relation to patients at the same Unit, his conduct related to separate patients and at different times. The disqualification periods should be served cumulating a total of seven years.

136 The practitioner is to pay the Board's costs and disbursements at the scale provided for as if the proceedings had been in the Supreme Court of Western Australia.

1. The practitioner is guilty of professional misconduct.
2. The practitioner's registration is cancelled.
3. As from 27 February 2015, the practitioner is disqualified from applying for re­registration as a registered health practitioner for a period of five years in relation to Patient A and two years in relation to Patient B, a cumulative total of seven years.
4. The practitioner is to pay the Nursing and Midwifery Board of Australia's costs and disbursements at the scale provided for as if the proceedings had been in the Supreme Court of Western Australia.

I certify that this and the preceding [136] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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