• The respondent had significant professional interactions with the patient in her role and he confided in her concerning highly personal issues. The power imbalance was obvious and she abused his trust placing the patient at grave risk.
• The respondent's conduct constituted professional conduct of a grave and very serious nature which was aggravated by the fact that she put her own interests above the welfare and safety of the patient.
• Despite the expressions of remorse recorded, the totality of the evidence still indicated that the respondent was far more focussed on the effect the conduct has had on her career than she is on the effect on the patient.

Health practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional misconduct - Inappropriate personal relationship with a patient and false and misleading statements to authorities - Reprimand, Disqualified from applying for registration for two years, Prohibited from providing any health service for two years, Prohibited from using titles "counsellor" or "therapist" for two years

Health Practitioner Regulation National Law (South Australia) s 193

Health Practitioner Regulation National Law (South Australia) Act 2010

HCCC v Engel-Jones [2011] NSWNMT 23

Medical Board of Australia v Tunbridge [2020] SACAT 34

HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448

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

Nursing and Midwifery Board of Australia v Symons [2020] SACAT 8

Marin v Chiropractors Board of Australia [2020] SASCFC 74

Medical Board of Australia v Singh [2020] SACAT 85

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

Marin v Chiropractors Board of Australia [2020] SASCFC 74

HCCC v Engel-Jones [2011] NSWNMT 23

HCCC v Waddell No 2 [2013] NSWNMT 2

Nursing and Midwifery Board of Australia v Shepherd unreported SACAT Decision 13 July 2021

Psychology Board of Australia v Holmes [2020] SACAT 122

Psychology Board of Australia v Holmes [2019] SACAT 69

Maroulis v Psychology Board of Australia [2021] SASC 16

Pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 the Tribunal prohibits the publication of the name of, or anything tending to identify, the patient referred to in the complaint or any person who lodged a notification under the Act concerning the respondent.

1. Emma Arbon (the respondent) formerly held registration as a registered nurse.

2. Allegations of professional misconduct against Ms Arbon have been referred to the Tribunal by the Nursing and Midwifery Board of Australia (the Board) under s 193 of the Health Practitioner Regulation National Law (South Australia) (the National Law). The National Law is to be found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the Act).

(a) engaged in an inappropriate personal and sexual relationship with a vulnerable mental health patient; and

(b) provided false and misleading information to the Board and the Australian Health Practitioner Regulation Agency (Ahpra).

4. The respondent has admitted the allegations and conceded that she has behaved in a manner that constitutes professional misconduct.

5. A hearing was conducted at which the parties provided submissions as to the appropriate disciplinary response.

6. The respondent formally admitted all 48 allegations contained in the Complaint.[1] Those allegations (with some editing to protect the privacy of the patient) were as follows:

1. Between in or about May 2019 and February 2020, the Respondent entered into, or alternatively fostered or maintained, an inappropriate, intimate, personal, relationship with a person (the patient) who at the time was a patient of the Respondent at a mental health facility (the Centre) and thereby breached professional boundaries ("Personal Relationship").

2. Further to Ground 1, on a date commencing in July 2019 and continuing until in or about December 2019, the Respondent also engaged in a sexual relationship with the patient and thereby further breached professional boundaries ("Sexual Relationship").

3. By letter to the Australian Health Practitioner Regulation Agency ("Ahpra") dated 18 November 2019 ("November 2019 Letter"), the Respondent knowingly gave to an Ahpra investigator a false and misleading explanation about the matters in Grounds 1 - 2 above.

4. On 6 February 2020, at an interview conducted pursuant to Schedule 5 of the National Law, the Respondent knowingly gave to two Ahpra investigators, further false and misleading explanations about the matters in Grounds 1 and 2 above.

PARTICULARS APPLICABLE TO ALL GROUNDS

5. The Respondent's date of birth is 12 June 1991.

6. At all material times until the 11 September 2020, the Respondent was registered to practise as a nurse on the register of nurses kept by the Complainant pursuant to the National Law.

7. The Respondent:

7.1 at all material times until 31 March 2020, practised nursing in the employ of Southern Adelaide Local Health Network (SALHN), SA Health;

7.2 at all material times from March 2018 until 8 October 2019 was posted by SALHN to work as a nurse at the Centre:

(a) on the Inpatient Ward;

(b) later in the Outpatients Ward (Ambulatory Services);

7.3 directly provided nursing care to the patient as an inpatient at the Centre on at least the following occasions:

(a) 29 April; 30 April, 24 May; 21 May and 22 May 2018; and

(b) 25 February; 20 March; 25 March; 29 March; 1 April; 2 April; 6 April; 8 April; 9 April; 10 April; 11 April; 13 April; 19 April; 29 April 2019;

7.4 also treated the patient at the Centre at least between 20 September 2019 and 2 October 2019 including providing to him one on one counselling sessions;

7.5 on occasions other than those in 7.3 and 7.4, during the periods in Table 1 was in contact with the patient whilst he was an inpatient in the Centre;

7.6 in the period 12 August 2018 to October 2019, from time to time as part of his approved treatment, the Respondent took the patient on outings to local shopping centres and on one occasion to Morialta Falls;

7.7 had and used a mobile phone with the number XXXX XXXX;

7.8 had and used the personal email address xxx@xxxx; and

7.9 used the mobile phone described in paragraph 7.7 above in connection with the carrying on of the Personal Relationship and the Sexual Relationship.

8. The patient:

8.1 is a male aged in his late 40s.

8.2 since approximately March 2011 and until 27 May 2020, had been a regular psychiatric patient of the Centre for both in-patient and outpatient attendances;

8.3 in the period described in paragraph 8.2 was under the principal care of a Senior Consultant Psychiatrist at the Centre (the treating psychiatrist);

8.4 since at least 29 April 2018, was directly provided with nursing treatment by the Respondent in the Centre;

8.5 relevantly, was admitted as an inpatient for treatment at the Centre for the following periods:

8.6 in the period described in Ground 1 above, was a vulnerable person:

Particulars of paragraph 8.6

(a) the Complainant refers to and repeats paragraphs 8.2, 8.3 and 8.4 above;

(b) at all material times the patient suffered from a major mental illness including:

(1) persistent major depression;

(2) border line personality disorder;

(3) post traumatic stress disorder;

(4) a history of multiple suicide attempts;

(5) ongoing suicidal ideation;

(6) difficulties forming and maintaining relationships;

(7) guilt and lack of self esteem; and

(8) a history of entering dependent relationships with younger women with subsequent breakdowns of same and consequent aggravations of his psychiatric condition ("Relationship Dependency");

("Patient Condition");

(c) in the period of his admission as an inpatient at the Centre listed as number 4 in Table 1:

(1) required;

(2) was undergoing;

a course of electro convulsive treatment ("ECT");

8.7 at all material times, owned a mobile phone number with the number xxxx xxxx; and

8.8 used the mobile phone described in paragraph 8.7 in connection with carrying on the Personal Relationship and the Sexual Relationship.

9. The facts and matters in paragraph 8 were at all material times known to the Respondent.

Particulars of paragraph 9

9.1 Over the course of the in-patient admissions at the Centre described in Table 1 above, the Respondent participated in regular:

(a) briefing sessions from the treating doctors; and

(b) handovers from shift to shift;

in which the Patient Condition was described and explained;

9.2 the Respondent:

(1) had access to;

(2) read;

the patient's case notes at the Centre spanning the period 29 April 2018 to 8 October 2019;

9.3 the Respondent made progress note entries in the patient's case notes including her assessment of the patient's mental state and condition on 29 April 2018; 30 April 2018; 21 May 2018, 22 May 2018, 23 May 2018, 24 May 201821 July 2018, 22 July 2018, 30 July 2018, 31 July 2018,11 August 2018, 12 August 2018,13 August 2018, 25 February 2019, 26 February 2019, 20 March 2019, 25 March 2019, 29 March 2019, 1 April; 2019, 2 April 2019, 6 April 2019, 8 April 2019, 9 April 2019, 10 April 2019, 11 April 2019, 13 April 2019, 19 April 2019 and 25 April 2019;

9.4 on 30 July 2018, the Respondent made the following entry in the patient's case notes:

"[The patient] can identify he can't be alone and single and continues to discuss the importance of him not jumping into a relationship when he leaves the ward on discharge";

9.5 on 31 July 2018, the Respondent made the following entry in the patient's case notes:

"[The patient] said he was wanting to focus on himself and consider the thought of a relationship next year, but until then said he needs time to process."

9.6 on 25 February 2019 the Respondent made the following entry in the patient's case notes:

"[The patient] informed nurse whilst in the car to shops that last night he had an increase in his SI, reporting that he had a plan to put his phone charger around his throat".

9.7 on 25 February 2019, the Respondent made the following entry in the patient's case notes:

"Personal vulnerability: Accomodation (sic) issues. previously living with parents, part access to children. High dependency (sic) issues about seeking future relationships".

9.8 on 8 April 2019 the Respondent made the following entry in the patient's case notes:

"Was able to identify that it was a common pattern that when a relationship ended and his emotions were high, that he 'would just get suicidal and want to end things. I tend to get impulsive and have black and white thinking".

and made a further entry concerning a senior nurse telling the Respondent to leave the patient's room;

9.9 at Ahpra Interviews conducted pursuant to Schedule 5 of the National Law on:

(a) 6 February 2020; and

(b) 11 May 2020;

the Respondent admitted that:

(1) at all material times;

(2) immediately prior to the period described in Ground 1 above; and

(3) during the period described in Ground 1 above

she was aware of the facts and matters in paragraphs 9.1 - 9.8 above (save for the diagnosis of borderline personality disorder).

10. On or about 8 October 2019, the Respondent:

10.1 was notified by her Manager at the Centre of an investigation by SALHN into the then allegation of the Sexual Relationship ("SALHN Investigation"); and

10.2 went on two weeks unpaid leave from the Centre.

11. The Respondent has not returned to the Centre since 8 October 2019.

12. On and from 21 October 2019, the Respondent was transferred by SALHN to work at the Older Persons Community Team at the Repatriation Hospital Precinct pending finalisation of the SALHN Investigation.

13. On or about 8 October 2019, the Complainant received a notification from the SALHN Nursing Director about the facts and matters in Grounds 1 and 2 above ("Notification").

14. On or about 18 October 2019, the Complainant via its agent, Ahpra, commenced an investigation of the Notification under section 160 of the National Law.

15. By letter dated 8 February 2020 to the Respondent SALHN gave her notice of its intention to terminate her employment on the grounds of:

15.1 the Sexual Relationship; and

15.2 her failure between 8 October 2019 and 6 February 2020 to comply with her employer's directions of 8 October 2019 not to contact the patient (as to which, see paragraph 23.4(b) below);

and sought her response ("SALHN Show Cause Letter")

16. On 12 February 2020, the Complainant imposed conditions ("Conditions") on the Respondent's registration under section 156 of the National Law.

17. The Conditions relevantly provided that the Respondent must not practise in any role requiring direct or indirect clinical patient contact (including supervision of other practitioners engaged in direct or indirect clinical contact).

18. By letter to SALHN dated 31 March 2020, in responding to the SALHN Show Cause Letter, the Respondent resigned from her employment with SALHN.

19. On 11 September 2020, the Respondent surrendered her registration as a nurse and has not held registration with the Complainant as a nurse since that date.

20. The Complainant has developed and approved pursuant to section 39 of the National Law:

20.1 the 'Code of conduct for nurses' ("NMBA Conduct Code"); and

20.2 the ICN 'Code of Ethics for Nurses' ("Code of Ethics");

which applied to the Respondent's conduct in Grounds 1, 2, 3 and 4 above.

21. Each of the NMBA Conduct Code and Code of Ethics:

21.1 is a measure or indication of the standard reasonably expected by the Respondent's peers and the public of a nurse of an equivalent level of training or experience as the Respondent; and

21.2 pursuant to section 41 of the National Law is admissible in these proceedings as evidence of what constitutes appropriate professional conduct or practice for the nursing profession.

PARTICULARS OF GROUND 1

22. The Applicant refers to and repeats paragraphs 5 - 21 above.

23. During the course of the nurse/patient relationship described in paragraphs 7.2, 7.3, 7.4, 7.5, 7.6, 8.4, 8.5 and 8.6 above, the Respondent and the patient commenced the Personal Relationship.

Particulars of paragraph 23

23.1 in or about May 2019, the Respondent and the patient exchanged their respective mobile telephone numbers (being those numbers set out at paragraphs 7.7 and 8.7 above);

23.2 in the period 26 August 2019 to 1 November 2019, the Respondent and the patient used their respective said mobile phones to privately communicate with each other either by way of a telephone conversation, an attempted telephone conversation or a text message including as follows:

Total communications or attempted communications in the period in this Table 2 - 137

23.3 from May 2019, the Respondent and the patient also communicated via social media including on Instagram;

23.4 on the occasion described in paragraph 10 above, the SALHN Nursing Director instructed the Respondent to:

(a) keep the SALHN Investigation confidential; and

(b) not speak to SALHN staff or patients either about the SALHN Investigation or at all;

23.5 despite the facts and matters in 23.4(a) and (b) above, communications between the Respondent and the patient which were similar to the type described in Table 2 continued until 9 February 2020;

23.6 the communications in Table 2 and 23.5 above were:

(a) in no way related to, or in connection with, the patient's treatment and nursing needs;

(b) made in furtherance of the Personal Relationship; and

(c) not recorded by the Respondent in the patient's case notes or in any records of the Centre relating to the patient's treatment; the Patient Condition or the patient's needs or progress;

23.7 the number; frequency, timing and lack of formal recording of the said telephone and other electronic contacts between the Respondent and the patient during the period set out in Table 2 and paragraphs 23.3 and 23.5 above are inconsistent with, disproportionate to, and/or inimical to, the maintenance of professional boundaries between nurse and patient;

23.8 in the course of the Personal Relationship the Respondent had regular meetings with the patient:

(a) in public parks, at beaches and other public places; and

(b) at cafes, restaurants and lunch places for coffee and/or a meal; in and near Semaphore SA and other places which the Complainant cannot specify without discovery by the Respondent;

23.9 the meetings in paragraph 23.8 above were:

(a) in no way related to, or in connection with, the patient's treatment and nursing needs;

(b) made in furtherance of the Personal Relationship; and

(c) not recorded by the Respondent in the patient's case notes or in any records of the Centre relating to the patient's treatment; the Patient Condition or the patient's needs or progress.

24. At the Ahpra Interview on 6 February 2020, the Respondent, after initial denials during the interview, admitted the fact of the Personal Relationship.

25. At the Ahpra Interview of 11 May 2020, the Respondent admitted:

25.1 all of the facts and matters in paragraph 23 above; and

25.2 that at the time of:

(1) entering into; and

(2) during the conducting of;

the Personal Relationship she was at all times aware that same breached the boundaries that must be kept between nurse and patient.

26. The conduct described in Ground 1, and particularised, above amounts to professional misconduct with the meaning of section 5 of the National Law because:

26.1 it violated the professional boundary which must subsist between nurse and patient and thus between the Respondent and the patient;

26.2 it breached:

(a) Principles 1 and 4 of the NMBA Conduct Code; and

(b) Elements 1 and 2 of the Code of Ethics

26.3 it was such that the Respondent allowed her own personal interests to prevail over the interests of the patient;

26.4 was carried out when the Respondent knew or ought reasonably have known that the Patient Condition, and in particular the Relationship Dependency, rendered the patient especially vulnerable to:

(a) entering into the Personal Relationship; and

(b) the consequences of the ending of same;

with psychiatric and emotional harm to the patient;

26.5 it in fact harmed the patient and resulted in him ending:

(a) his treating relationship with the treating psychiatrist; and

(b) his treating relationship with the Centre;

26.6 it brought the nursing profession into disrepute and/or was detrimental to the reputation of the nursing profession and the confidence of the public in same;

26.7 it is conduct that is inconsistent with the Respondent being a fit and proper person to hold registration as a nurse within the meaning of paragraph (c) of the definition of professional misconduct in section 5 of the National Law; and/or

26.8 it is substantially below the standard reasonably expected of a registered nurse of an equivalent level of training or experience within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law; and

26.9 in the alternative to paragraphs 26.7 and 26.8 above, it is unprofessional conduct which when considered in combination with the matters in Grounds 2, 3 and 4 above amounts to conduct that is substantially below the standard reasonably expected of a registered nurse of an equivalent level of training or experience within the meaning of paragraph (b) of the definition of professional misconduct in section 5 of the National Law.

PARTICULARS OF GROUND 2

27. The Complainant refers to and repeats paragraphs 5 - 21 and 23 - 25 inclusive above.

28. For a period commencing in July 2019 and finishing in late December 2019 ("Sexual Relationship Period") the relationship between the Respondent and the patient became an intimate and sexual relationship.

29. During the Sexual Relationship Period the relations between them included, kissing; petting and then progressing to sexual intercourse on a number of occasions.

30. The relations described in paragraph 29 took place primarily at the patient's home.

31. At the Ahpra Interview of 11 May 2020, the Respondent admitted:

31.1 all of the facts and matters in paragraphs 28 - 30 above; and

31.2 that at the time of:

(1) entering into; and

(2) during the conducting of;

the Sexual Relationship, she was at all times aware that same breached the boundaries that must be kept between nurse and patient.

32. The Respondent's conduct in Ground 2 is professional misconduct for the reasons, mutatis mutandis, set forth in paragraph 26 above.

PARTICULARS OF GROUND 3

33. The Complainant refers to and repeats paragraphs 5 - 21; 23 - 25 and 27 - 31 inclusive above.

34. By letter to the Respondent dated 28 October 2019 ("Ahpra 28 October 2019 Letter"), Ahpra:

34.1 gave to her notice of the Notification;

34.2 invited her to provide a written response to the Notification; and

34.3 advised her it was not appropriate to discuss the Notification with the patient.

35. By letter to Ahpra dated 18 November 2019 ("the Respondent's 18 November 2019 Letter"), the Respondent responded to the Ahpra 28 October 2019 Letter and the invitation in paragraph 34.2 above.

36. In the Respondent's 18 November 2019 Letter:

36.1 intending that they be relied upon; and

36.2 for the purposes of exculpating the Respondent in connection with:

(a) the Notification and Investigation;

(b) the conduct in Grounds 1 - 2 above;

the Respondent made the following false and misleading representations to Ahpra.

Particulars of False and misleading Representations

37. The Respondent stated that:

37.1 she had not engaged in a sexual conduct with the patient;

37.2 there was no special relationship between her and the patient other than patient and practitioner;

37.3 she had not engaged in any inappropriate conduct with the patient;

37.4 she had not crossed any professional boundaries with the patient;

37.5 all of her interactions with the patient off the Centre ward were in the nature of therapeutic treatment approved by the head consultant; Manager and Team Leader.

38. Each of the representations in paragraph 37.1 - 37.5 was to the knowledge of the Respondent false at the time she made them:

Particulars of paragraph 38

38.1 the Complainant refers to and repeats paragraphs 23, 24, 28, 29, 30 and 31 above.

39. The Respondent's conduct in Ground 3 is professional misconduct because it:

39.1 was a deliberate attempt to exculpate herself from the consequences of entering into the Personal Relationship and the Sexual Relationship and to mislead Ahpra and the Complainant in the exercise of their functions;

39.2 was a failure to comply with Domain 4 and Principles 1.1 and 1.2 of the NMBA Code of Conduct;

39.3 was a failure to comply with Elements 1 and 2 of the Code of Ethics;

39.4 is conduct which brought the nursing profession into disrepute and/or was detrimental to the reputation of the nursing profession and the confidence of the public in same;

39.5 is conduct in connection with the practice of nursing that is dishonest and inconsistent with the Respondent being a fit and proper person to hold registration in the nursing profession within the meaning of paragraph (c) of the definition of professional misconduct in section 5 of the National Law;

39.6 is such as to amount to conduct that is substantially below the standard reasonably expected of a registered nurse of an equivalent level of training or experience within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law; and/or

39.7 in the alternative to 39.6, is unprofessional conduct which in combination with the matters in Grounds 1, 2, and 4 above amounts to conduct that is substantially below the standard reasonably expected of a registered nurse of an equivalent level of training or experience within the meaning of paragraph (b) of the definition of professional misconduct in section 5 of the National Law.

PARTICULARS OF GROUND 4

40. The Complainant refers to and repeats paragraphs 5 - 21; 23 - 25 and 27 - 31 inclusive above.

41. By letter from Ahpra to the Respondent dated 30 January 2020, pursuant to Schedule 5 of the National Law, Ahpra required the Respondent to attend for an Interview by duly appointed Ahpra Investigators in connection with the Investigation.

42. The Interview referred to in paragraph 41 took place at Ahpra's offices at Level 11, 80 Grenfell Street, Adelaide SA 500 on 6 February 2020 ("6 February 2020 Ahpra Interview").

43. Two duly appointed Ahpra Investigators were in attendance at the 6 February 2020 Ahpra Interview along with the Respondent and her representative.

44. At the commencement of the 6 February 2020 Ahpra Interview, the Respondent was warned ("Warning") by an interviewing Investigator that under Schedule 5 of the National Law it was an offence to knowingly state anything which is false or misleading to an Ahpra investigator.

45. Despite the Warning, at the 6 February 2020 Ahpra Interview, the Respondent knowingly made the following false and misleading statements to the Ahpra Investigators who were present:

45.1 she had never spoken to the patient by telephone;

45.2 she had never initiated contact with the patient via her telephone;

45.3 the patient had never initiated contact with her via his telephone;

45.4 the patient had never obtained her personal mobile telephone number;

45.5 she had never spoken with the patient outside his admission times at the Centre;

45.6 she never sent him a text message;

45.7 she did not contact the patient on or after 8 October 2019;

45.8 she had not been to the western suburbs of Adelaide such as Semaphore;

45.9 that she had not spoken with the patient by her telephone on 8 October 2019 for 85 minutes.

46. Subsequent to knowingly making the false and misleading statements in paragraphs 45.1 - 45.9 above, during the 6 February 2020 Interview, having been shown her Vodafone mobile telephone records and her phone being seized for forensic examination, the Respondent admitted:

46.1 that the statements in paragraphs 45.1 - 45.9 above were in fact false;

46.2 that she made each of the statements in paragraphs 45.1 - 45.9 knowing it to be false;

46.3 that the events described in paragraphs 45.1 - 45.9 in fact occurred;

46.4 that she did have the Personal relationship with the patient;

46.5 that she did have the sexual Relationship with the patient; and

46.6 that the patient had contacted her on 6 February 2020 before the 6 February 2020 Interview.

47. By letter to Ahpra dated 25 March 2020, the Respondent admitted:

47.1 the facts and matters in paragraph 46 above;

47.2 the Personal Relationship;

47.3 the Sexual Relationship; and

47.4 that further contact occurred between her and the patient on 7, 8 and 9 February 2020.

48. The Respondent's conduct in Ground 4 is professional misconduct for the reasons, mutatis mutandis, set forth in paragraph 39 above.

7. As well as receiving the formal admission of the above allegations, the Tribunal was provided with a Book of Documents, containing further evidence concerning the circumstances of the misconduct. We have marked that Book of Documents as exhibit "C1".

8. The respondent also gave evidence on affirmation before the Tribunal and tendered a reference[2] from Mr Robert Braithwaite, a former colleague, and some materials relating to education she has undertaken.[3]

9. We make findings in accordance with allegations 1-48 in the Complaint (which matters were formally admitted by the respondent and are set out above). We will not repeat those matters.

10. Based on the totality of the material before us, we make further findings which will be apparent from what follows.

11. The respondent completed her Masters of Clinical Nursing qualification in 2015 and became registered. In 2016, she completed a Graduate Diploma in Clinical Nursing (specialising in mental health). During this time, she was working full time in the Graduate Diploma Mental Health Registered Nurse Program through the Central Adelaide Local Health Network. She had rotations at the Queen Elizabeth Hospital, Eastern Community Mental Health Service, and Glenside Health Campus. After completing the graduate program, the respondent gained employment at Glenside Campus and then transferred to the Royal Adelaide Hospital in August 2017, working in the area of mental health.

12. The respondent was transferred to the Centre as a mental health nurse in March 2018. In May 2019, she was not quite 28 years of age. She had been a registered nurse for about four years.

13. The patient was at all material times an extremely vulnerable person. We had before us an affidavit from the treating psychiatrist who had treated him for about eight years.[4] It outlines the patient's diagnoses of major depression, post-traumatic stress disorder, and borderline personality disorder.[5] It describes how the patient had entered into a number of successive relationships with younger women and, when those relationships ended, his mental state would worsen and his depression would be exacerbated.[6] The affidavit emphasises the patient's vulnerability.[7] The author stated:[8]

The respondent should have known, quite apart from the fact that it is never acceptable for a nurse to have a sexual relationship with a patient, that [the patient] was extremely vulnerable and prone to suicidal ideation and major exacerbation of his depressive condition against the background of entering into personal relationships with younger women which had a history of coming to an end.

14. Similar views were expressed by a trainee psychiatrist involved in the patient's care:[9]

This patient has a significant personality disorder, and he's very vulnerable to forming relationships and also vulnerable when the relationship ends. There is therefore a significant risk of harm to him, perhaps more so than any other patient without the personality disorder.

15. We accept this evidence and find that the patient was extremely vulnerable at all relevant times. The respondent was aware of this vulnerability.

16. It is significant that the patient had such a long-standing relationship with the treating psychiatrist and other staff at the Clinic. His condition was well-known and understood and relationships of trust had been developed.

17. The importance of maintaining professional boundaries was obvious. Any crossing of those boundaries would give rise to substantial risks to the patient.

18. The respondent had significant professional interactions with the patient in her role as a mental health nurse. He confided in her concerning highly personal issues. He placed his trust in her. The power imbalance was obvious. She abused his trust and, in so doing, placed the patient at grave risk.

19. The Tribunal has no evidence from the patient as to how the relationship started and progressed.[10] The respondent states that they exchanged telephone numbers. From about May 2019, they started seeing each other socially. The respondent claims that initially she regarded it as no more than a friendship and she thought that she could "help" him. We regard this as an alarming lack of judgement and insight, even for a mental health nurse with limited experience. The importance of boundaries is an essential part of mental health training. At one level, the respondent clearly knew that the personal relationship was inappropriate,[11] but at another level she professes a naivety as to the dangers of dual relationships.[12] We consider that she must have been aware that she was acting unethically, but was sufficiently naive and arrogant to think that she could operate outside the ethical requirements.

20. As to the development of the sexual relationship, she stated in her letter dated 25 March 2020:[13]

It then led to a sexual relationship which was not planned. This occurred in July 2019. This is when the conversations became more intense and were about him wanting to get into a relationship. I told him that we could not have a relationship. Which This frustrated [the patient] (sic) and he was sometimes angry - making me extremely scared at times when he was drinking or raged. I found that I had to agree with things, in fear if I did not comply. At times, [the patient] did threaten self-harm when I expressed needing to end things.

21. Clearly, by this time the respondent was fully aware that the relationship was improper. She was well aware of the vulnerability of the patient and could have advised his treating psychiatrist of the situation and ensured that he received proper care. She chose not to do so, presumably because she did not wish to reveal her own misconduct. Instead, she chose to embark on a sexual relationship. This placed the patient at far greater risk.

22. During the final admission from September to October 2019, the patient was so unwell that he required 12 administrations of electroconvulsive therapy treatment.[14] These treatments made the patient even more vulnerable.[15] This was at the time that the respondent was engaged in a sexual relationship with him. The respondent did not advise the treating psychiatrist of the relationship although it would clearly have been in the patient's best interests to do so. We find that the respondent was more concerned with her own interests.

23. The patient eventually made statements to staff at the Centre that caused management to become suspicious. On 8 October 2019 a manager put an allegation to the respondent that she was in a relationship with a patient. The respondent responded that she had no idea what the manager was referring to. She denied the allegation.[16] The denial was false.

24. The respondent was directed not to contact any patient of the Centre. Despite that direction, she had lengthy communications with the patient that same day, and in the months that followed. The patient told staff that he had received a text from the respondent, and she was very worried about losing her job. The patient was distressed and said he would deny everything.[17] We find that the respondent continued to be more concerned about her own interests than she was about the safety and welfare of the patient.

25. Despite the above events, the respondent continued the sexual relationship with the patient until December 2019 and the personal relationship until February 2020. She states that she was attempting to cease the relationship but was fearful of the patient's reaction. She did not advise the treating psychiatrist of the true situation or the fears that she held about the patient's safety. She maintained her denial of any relationship. The patient was no doubt influenced to conceal the true situation from his treating psychiatrist. This was not in the patient's best interests, particularly when the respondent was taking steps to end the relationship.

26. When the respondent was invited by Ahpra to respond to the allegations, she did so by letter dated 18 November 2019.[18] She denied any misconduct. The letter reveals her apparent indignation that such an allegation would be made against her. It refers to her competency as a mental health nurse and gives the impression that she is well aware of, and complies with, her ethical obligations. The letter is critical of other staff members and of her employer. She complains of the negative effects of the allegation on her welfare: "resulting in poor sleep, anxiety and stress".

27. This letter was written at a time when the sexual and personal relationship with the patient was continuing. In such circumstances, the letter was, as submitted by counsel, "arrogant" and it reflects very poorly on the respondent.

28. The respondent was interviewed by officers from Ahpra on 6 February 2020. By this time, she had been involved in the relationship for over eight months and had had about four months from when the allegations were first raised with her to consider her position and her ethical responsibilities. She was warned that it was an offence to make false statements to an investigator. She proceeded to deny any misconduct. She made a number of false statements concerning her communications with the patient. Even after her telephone records were produced to her, she feigned surprise and suggested that her phone might have been hacked. She maintained her pretence until it was obvious that it could no longer be maintained. She only admitted the truth when there was no practical alternative.

29. Despite the Ahpra investigation and directions from Ahpra that she should not communicate with the patient, the respondent continued the sexual relationship until December 2019 and the personal relationship until after the interview.

30. We observe that the respondent demonstrated by her written response and in the first part of the interview on 6 February 2020 that she was able to present in a plausible way, even when the account she was giving was totally untrue. She is obviously intelligent and savvy in her presentation skills. Insofar as the respondent now makes professions of contrition and claims that she is now a reformed person, such claims must be assessed with care.

31. On 12 February 2020 the patient confided in his treating psychiatrist concerning the sexual relationship. He said that he was considering ending his treatment at the Centre because of the investigations by the employer and Ahpra and the fact that the respondent was no longer employed at the Centre.[19] On 27 April 2020 the patient advised the treating psychiatrist that he was ending his treatment with the Centre and the treating psychiatrist. He said he had lost trust in the Centre due to its investigation into the respondent and her relationship with him. He was upset that he could not have continued that relationship.[20]

32. The patient declined an offer of referral to another psychiatrist and it is not known whether he has received any psychiatric care since that time. Ongoing care is certainly required.[21]

33. The treating psychiatrist states:[22]

The conduct of the respondent in having the personal and sexual relationship with [the patient] has, in my view, caused significant harm to [the patient]. The impact of the relationship and his decision to cease treatment at [the Centre] and with me has disrupted his care and the therapeutic alliance that I had developed with him over such a long period as his treating psychiatrist.

For persons such as [the patient] and his condition, it is important that they maintain relationships and friendships and contacts. Over such a long period of attending [at the Centre] he had developed such relationships, friendships and contacts, all of which were lost. That was and will be detrimental to his ongoing mental health. In my view the impact of the relationship and the fall out from same has had an enormous deleterious impact on his treatment. In my view those impacts will continue to have serious detrimental effects on his ongoing care into the future.

No medical practitioner on his behalf has contacted [the Centre] to access the notes or to ascertain any information or history about [the patient]. I find that concerning. In the event that he has found a new psychiatrist, they are treating him without the benefit of the knowledge of the history available from [the Centre] or me. This means that the psychiatrist will be treating him without the benefit of full information.

34. We accept the treating psychiatrist's evidence concerning these matters.

35. Mental health patients tend to be especially vulnerable. Health practitioners who treat such patients bear a heavy responsibility to observe professional boundaries. The responsibility is heightened where the practitioner is trusted by the patient with access to the patient's innermost thoughts and concerns. There is an inevitable power imbalance and corresponding vulnerability. In HCCC v Engel-Jones [2011] NSWNMT 23 the NSW Tribunal stated (at [50]:

The Tribunal has an obligation to assist in maintaining public confidence in the nursing profession and to confirm for nurses (and midwives) that their profession's standards will be maintained. The order that the Tribunal makes must reflect that mental health patients are perhaps the most emotionally vulnerable patients a nurse may treat and that the ethical standards of nurses need to be steadfastly maintained in relation to them. Keeping the professional boundary between themselves and their patients is a matter that is well understood and practised by most mental health nurses..."

36. We agree with counsel for the Board that the respondent's conduct in engaging in the personal and sexual relationship fell substantially below the standard of conduct required of any registered nurse. It was conduct inconsistent with the respondent being a fit and proper person to be registered. It was conduct likely to damage the reputation of the Centre and to bring the profession into disrepute. The respondent's conduct was aggravated by the fact that she continued the relationship after the allegation had been put to her (and denied) and after she had been instructed not to contact the patient. It was aggravated by the fact that she put her own interests above the welfare and safety of the patient, even when she was attempting to end the relationship and had fears as to how he would react. This was professional misconduct of a grave nature.

37. The conduct in making false statements to Ahpra is also very serious. It was sustained and deliberate conduct over a considerable period of time. Such conduct also falls substantially below the required standard of conduct for any registered nurse. It also is conduct inconsistent with the respondent being a fit and proper person to be registered. It is conduct that reveals serious character flaws. We have no hesitation in finding that it is professional misconduct.

Insight, contrition and reformation of character.

38. Counsel for the Board submitted that the respondent had demonstrated very limited insight or contrition. He pointed to comments made in the interview on 6 February 2020 where the respondent appeared to assert that the relationship had actually been helpful to the patient.[23] He referred to passages where the respondent appeared to suggest that she was a victim of the patient's conduct and where in the second interview on 11 May 2020 she describes herself as vulnerable in the formation of the relationship.[24] He submitted that the respondent's principal focus at all times had been on her own circumstances and comparatively little attention was given by her to the interests of the patient or the effect of her behaviour on him. He suggested that the respondent might be able to "say the right words" but there had been no real reformation of character.

39. The respondent gave evidence of events since the misconduct. When asked for her reflections on what had occurred, she said that she had reflected on her conduct "every day" and took full responsibility for it. She said that she lacked insight at the time and added:

Through self-reflection, I have been aware that I shouldn't have done it, and that is going to be something I have to live with for the rest of my life, knowing that it has come to this, and, you know, I will potentially lose my nursing from this decision".

40. She indicated that she had studied the relevant Codes of Conduct and undertaken various courses to educate her in the area of ethics. She had also sought professional help from a psychologist. She now had a better understanding of boundaries and warning signs. She said: So I think now that I have reflected over the two and a half years, I have seen that I ... made a very bad choice, and a choice that I have to live with for the rest of my career and my life, and, you know, my morals and my values on top of, you know, the principles of a nurse. .... I have been able to get a good understanding of what I've done and be remorseful for my actions moving forward with my developed plan around my strategies."

41. The respondent was able to identify that her conduct had put the patient at risk due to his vulnerability and referred to the treating psychiatrist's evidence about harm caused to the patient. Under cross-examination, she stated with respect to the patient:

...I have non-stop been thinking about how this has impacted him and how long-term it's going to impact him.

42. Despite the expressions of remorse recorded above, we still have the impression, on the totality of the evidence, that the respondent is far more focussed on the effect the conduct has had on her career than she is on the effect on the patient. She has been able to express contrition but it is difficult to assess the depth of her feelings in this area.

43. The respondent tendered a reference from an Acting Unit Manager at the Centre.[25] He speaks very highly of her skills and abilities as a mental health nurse. He states that she is passionate about her work, committed, and ambitious. The misconduct is, in his view, "out of character". He opines that the respondent is remorseful and has insight into what occurred. He would welcome her future employment at the Centre.

44. The respondent has no history of misconduct previous to the matters before the Tribunal.

45. The respondent has undertaken several courses related to ethical behaviour and observance of boundaries.[26] As counsel for the Board pointed out, these courses were undertaken in May and July 2021, immediately before the Tribunal hearing.[27] This would suggest that the motivation was more likely for the purpose of advancing her case rather than any perceived need for the education. She did not think it sufficiently necessary to have such education before undertaking placements and work as a counsellor (as to which, see below). We have no doubt that the respondent would have benefited from the education, but her motivation was at least mixed.

46. As stated, the respondent did seek assistance from a psychologist. We have received a short report (dated 7 May 2020) from the psychologist.[28] It records that the respondent engaged in three sessions with the psychologist. The report states:

During our opening session, Ms Arbon discussed an incident which occurred within her workplace that involved her engaging in an intimate relationship with a patient within her care. It is my understanding that this was a brief relationship which has now ceased and has resulted in Ms Arbon's conduct being investigated by [Ahpra].

47. The author states that the respondent engaged well in the sessions and did not appear to avoid or shift responsibility. The focus of the sessions was on the respondent understanding "what allowed the relationship with a former patient to occur" and steps to avoid any recurrence. The report suggests that the respondent's understanding of such issues had increased and that had been assisted also by the ethics component of her studies in counselling.

48. The references to "an incident", a "brief relationship", and a "former patient" are concerning, as is the apparently narrow focus of the therapy. A further reference to "grooming behaviour" is, to say the least, puzzling. There is no mention in the report of discussions about the vulnerability of the patient or the risks that the respondent's conduct entailed for the patient. There is no mention of the respondent demonstrating empathy for the patient or expressing concern for the effect of her conduct on the patient. There is no record of any discussion concerning issues of trust or the imbalance of power between patient and practitioner. There is no indication of any discussion as to why the respondent allowed this relationship to progress and continue over a period of many months despite the precarious health of the patient, his continued treatment at the Centre, the Ahpra investigation, and the instructions not to contact the patient. Most concerningly, there is no reference to the deliberate and sustained dishonesty of the respondent in dealing with the regulatory authority.

49. We accept that the sessions with the psychologist were probably helpful to the respondent with respect to the issues that were discussed, but we are by no means satisfied that they adequately covered the professional and personal deficiencies that are revealed by the misconduct.

50. The respondent has not worked as a nurse since conditions were imposed on her registration on 12 February 2020. She resigned from her employment on 31 March 2020. Her registration was surrendered on 11 September 2020.

51. The respondent undertook a one-year intensive Masters of Counselling degree in 2020 and has worked as a counsellor for Centacare Family Services as a school counsellor since March 2021. She is currently employed by Centacare to work in two primary schools and one high school. She indicated that her work includes one-on-one counselling of students and that boundary issues are important in such work. She also stated that her mental health nursing skills are often relevant to her counselling role, such as dealing with depression, anxiety and panic attacks. She spoke, for example of using her skills as a mental health nurse to do a risk assessment when a senior school student had allegedly been abused. She considered that the schools were pleased to have a counsellor with mental health training.

52. When questioned directly by the Tribunal, the respondent stated that her employer and the Schools in which she worked were not aware of the matter before the Tribunal (or the events giving rise to it). She stated that she had not been asked any question which required her to reveal it. She stated:

...I probably should have told them straight away that this is what's happened, but I had that fear that I wouldn't get a job because of my actions, and that people would see a red cross and not want to even look at, you know, how far I've come and, you know, the development that I've tried to do myself in my profession and moving forward with education, so, I think, in hindsight, yes, I probably should have told them straight away.

53. This is a matter of significant concern to the Tribunal. We consider that it demonstrates a continuing lack of judgement and integrity. The respondent recognised that this information was likely to be of considerable significance to the employer. It was a matter potentially relevant to the safety of children. The employer would have wanted to know. The schools would have wanted to know. The employer and the schools have potentially been placed in a compromised position.

54. We consider that the failure to disclose this information is indicative of the fact that the respondent has not fully accepted responsibility for her misconduct. She has sought to conceal it, so that it does not get in the way of her new career objectives. She has again put her own interests first, ahead of a commitment to candour and integrity.

55. Where a practitioner has exhibited serious deficiencies in his or her character, standard of conduct, or attitudes, it requires clear proof to later demonstrate that reformation has occurred.[29]

56. The respondent has not persuaded us that she has at this time satisfactorily addressed the character flaws that caused her to become involved with the patient and lie to the regulatory authorities over an extended period. We accept that she has increased her understanding of ethical issues and now has greater insight into such matters. We think it unlikely that she would become involved in an improper relationship in the future, but on the evidence before us we cannot rule out the possibility or regard it as an acceptable level of risk. Nor can we be confident that the respondent would be frank and honest in her dealings with patients, employers, or regulatory authorities in the future, if she perceived that it was not in her personal interest to do so. We are not satisfied that the respondent is a fit and proper person to be registered at the present time.

57. The respondent clearly has positive attributes and skills in the area of mental health. There is every chance that she will be able to demonstrate fitness to be registered at some time in the future. She indicated that she would like to return to nursing in the future and we do not wish to discourage her from that aspiration. However, we are not satisfied at the present time on the evidence before us that the character flaws have been satisfactorily addressed.

58. The purpose of disciplinary action is entirely protective and does not involve any element of punishment. The purposes of disciplinary action have been discussed in many cases and need not be restated here.[30] The Tribunal reviewed some of the relevant authorities in Medical Board of Australia v Tunbridge [2020] SACAT 34 at [19]- [24].[31]

59. It is well recognised that the purposes of disciplinary action may sometimes require sanctions that have a greater adverse effect on a practitioner than might be necessary if punishment was the only consideration.[32] The personal circumstances of the practitioner are relevant, but of lesser importance than the need to impose sanctions that will protect the public.

60. We will deal with the conduct overall. It is extremely serious professional misconduct. It is imperative that we protect the vulnerable within our community. The respondent abused the trust of a vulnerable patient and placed him at serious risk. She caused him significant harm. She placed her own interests ahead of those of the patient, maintaining and concealing the relationship for many months and thereby continuing to place him at risk. She was deliberately and persistently dishonest in her dealings with the professional regulator, again putting her personal interests ahead of the honesty and candour required of a registered person.

61. Such conduct seriously impugns the respondent's fitness to be registered. We are not satisfied that the issues concerning the respondent's fitness to practise have yet been satisfactorily addressed. We are concerned that there remains a degree of risk to the public. This risk exists in her role as a school counsellor, as well as in relation to any return to nursing. There is a need to take action that will protect the public.

62. There is also a need to impose sanctions that will bring home to the respondent and other practitioners that serious misconduct of this type will not be tolerated and will lead to significant sanctions. This is necessary to maintain confidence in the profession, and to reassure the public that standards in the profession will be maintained and that health services will be appropriately regulated so that the public is protected.[33]

63. Limited assistance is available from other decisions. Sanctions vary according to the facts and circumstances of each matter, but there is a clear indication of the serious way in which misconduct of this nature is considered.[34]

64. We have regard to the fact that the respondent has not worked as a nurse since 12 February 2020 as a result of her misconduct

65. The respondent is no longer registered. If she was, we would have cancelled her registration.

66. We impose a formal reprimand to mark our condemnation of the conduct.

67. We disqualify the respondent from applying for registration as a registered health practitioner for a period of two years from the date of this order.

68. We prohibit the respondent from providing any health service, including in the role of a counsellor, for a period of two years from the date of this order. "Health service" has the meaning that it has in the National Law.

69. We prohibit the respondent from using the titles "counsellor" or "therapist" for a period of two years from the date of this order.

70. We consider that these sanctions will achieve the proper purposes of disciplinary action and allow time for the respondent to demonstrate over a sustained period her reformation of character and fitness to be registered.

71. We order that the respondent pay the Board's costs of the proceeding to be agreed or fixed by the Tribunal.

72. Pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 the Tribunal prohibits the publication of the name of, or anything tending to identify, the patient referred to in the complaint or any person who lodged a notification under the Act concerning the respondent.

[10] On advice from the treating psychiatrist, no statement was taken from him.

[11] Formal admission to par 25 of the Complaint, C1 page 292, Q 281, page 296 Q 347.

[24] C1 page 220, 728, 732; second interview 11 May 2020, C1 page 348, 1155.

[27] With one course to be completed shortly after the hearing.

[29] HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637; Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 46; 84 WN (NSW) (Pt 2) 275 at 286.

[30] Craig v Medical Board of South Australia [2001] SASC 169 at [41]- [48]; Nursing and Midwifery Board of Australia v Symons [2020] SACAT 8 at [50]- [51]; Marin v Chiropractors Board of Australia [2020] SASCFC 74 at [73].

[31] See also Medical Board of Australia v Singh [2020] SACAT 85.

[32] Craig v Medical Board of South Australia [2001] SASC 169 at [43].

[33] Marin v Chiropractors Board of Australia [2020] SASCFC 74 at [73].

[34] HCCC v Engel-Jones [2011] NSWNMT 23; HCCC v Waddell No 2 [2013] NSWMMT 2; Nursing and Midwifery Board of Australia v Shepherd unreported SACAT decision 13 July 2021; Psychology Board of Australia v Holmes [2020] SACAT 122; Psychology Board of Australia v Maroulis [2019] SACAT 69; on appeal Maroulis v Psychology Board of Australia [2021] SASC 16.