With the agreement of the respondent, the Tribunal finds that the respondent engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (b) of s 5 of the Health Practitioner Regulation National Law (National Law) in that between on or about 29 April 2017 and on or about 5 June 2017, the respondent:

• engaged in an inappropriate relationship with a patient;
• breached patient confidentiality and privacy; and
• otherwise engaged in conduct disclosing that she did not possess adequate insight into the needs of vulnerable psychiatric patients and the requisite professional standards of a health practitioner.

With the agreement of the respondent, the Tribunal orders as follows:

1. The respondent is reprimanded.
2. Noting that the respondent's registration has been suspended since 7 July 2017 by immediate action decision of the applicant, the respondent's registration is suspended for one month commencing on 21 February 2020 and ending on 20 March 2020.
3. With a review period of four months from 21 February 2020, the following conditions are imposed on the respondent's registration:

1. The Practitioner must undertake and successfully complete a program of education approved by the Nursing and Midwifery Board of Australia (the Board), which, subject to the approval of the Board may be the program of education already completed by her, and including a reflective practice report in relation to maintaining professional boundaries.
2. Within 21 days of the notice of the imposition of these conditions, the Practitioner must make a nomination to undertake either one on one education or a formal education course (the education) as follows:

On the approved form (HPN24), nominate for approval by the Board an education course, assessment or program (the education) addressing the topics required. The Practitioner must ensure the nomination includes a copy of the curriculum of the education.

1. nominate a person(s) to be approved by the Board to act as educator, and
2. provide acknowledgement that AHPRA will obtain a report from the approved educator at the conclusion of the education.

The Practitioner must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and by an education plan outlining the form the education will take and how the topics of the education will be addressed.

1. The education should consist of a minimum number of four hours.
2. The Practitioner must provide evidence to AHPRA of the successful completion of the education within three months of the notice of the Board's approval of the education.
3. Within 21 days of the completion of the education or approval by the Board of the education already completed, the Practitioner must provide to AHPRA:
   1. A reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner will incorporate the lessons learnt in the education into the Practitioner's practice.
   2. Evidence of having undertaken and successfully completed the formal assessment component of the education.
4. Within 21 days' notice of the imposition of these conditions, in respect of each current place of practice, the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person). In providing this form, the practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The practitioner will be required to provide the same form:
   1. within seven days of the commencement of practice at each subsequent place of practice, and
   2. within seven days of each and every notice of any subsequent alteration of these conditions.
5. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

Note: Orders under the Open Courts Act 2013 are in force

On 6 August 2019 the Tribunal made the following orders:

1. The disclosure by publication or otherwise of any report of the whole or any part of this proceeding, or of any information derived from this proceeding, which identifies or has the effect of identifying the patients, witnesses or notifiers is prohibited. That information includes information regarding the location where the respondent practiced at relevant times.
2. This order applies throughout Australia. The Tribunal's reasons for decisions are published on the AustLII website, which is accessible throughout Australia. The privacy of the people referred to in order 1 would be breached if persons living outside Victoria know or come to know their identity.
3. This order operates until the death of all of the patients, witnesses and notifiers.

1. This case is about the professional conduct of enrolled nurse Ms Kristeena Ballarto between April and June 2017, when she was working at a private psychiatric hospital. She commenced working at the hospital in October 2016. It was her first job after qualifying as an enrolled nurse.
2. On 1 August 2019, under the Health Practitioner Regulation National Law (National Law) the Nursing and Midwifery Board of Australia (the Board) referred allegations to VCAT.
3. The allegations relate to the extent to which Ms Ballarto failed to recognise and observe professional boundaries in her interactions and communications with an inpatient at the hospital.
4. Central to the allegations are text message conversations between Ms Ballarto and the patient, the content of which included:
   • private matters including relationships, relationship difficulties and personal mental health matters;
   • sending and asking for personal photographs;
   • internal matters about the hospital;
   • sexually explicit or otherwise inappropriate language, including about other patients;
   • sensitive information about other patients; and
   • aggressively reacting after the patient reported concerns for Ms Ballarto's well-being.
5. Ms Ballarto and the Board reached a joint position in the case and we received agreed facts, which are set out below, save that we have de-identified the patient by using the letter 'P' wherever the patient's initials appear, and we have not set out the transcriptions of the text messages as they may indirectly identify others and are otherwise sufficiently described in the agreed facts.
6. The agreed facts include the particular professional obligations breached by the conduct in the Code of Professional Conduct for Nurses and the Code of Ethics for Nurses in Australia.
7. Ms Ballarto admits the allegations, and that the conduct represents professional misconduct under paragraphs (a) and (b) of the definition in s 5 of the National Law: namely
   • (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.
8. We agreed and made findings to that effect.
9. Using the language of the Code of Professional Conduct for Nurses, professional boundaries are there to 'preserve the trust and privilege inherent in the relationship between nurses and people receiving care'. Breaching professional boundaries erodes 'the community's trust and confidence in the nursing profession'.
10. A staff member's statement in the materials before us indicated that P did not appear to have been adversely affected, as observed over a period of time. This is fortunate.
11. Nevertheless, such conduct carries a risk of harm to vulnerable patients such as P, who had a history of prior admissions for depression. In the course of a patently inappropriate relationship, Ms Ballarto also burdened P with her own problems to the point where P reported concerns about her well-being to staff. P was concerned for Ms Ballarto and at the same time anxious that she not get into trouble. No patient should be put in that position.
12. The conduct as a whole represents a substantial departure from the standard of conduct expected of a nurse, and numerous instances of conduct that was inappropriate in a range of ways. It is appropriately characterised as professional misconduct.
13. Ms Ballarto and the Board also agreed on proposed determinations for the Tribunal's consideration. They were that Ms Ballarto be reprimanded, her registration be suspended for one month and that an education condition be imposed on her registration.
14. After hearing the Board's submissions and hearing from Ms Ballarto, we agreed that the determinations were appropriate. We made orders at the hearing and gave outline reasons, with written reasons to follow.
15. We also made the following general observations.
16. This case, and others that are coming before the Tribunal more often, illustrate the need for health practitioners to recognise that text communication with patients requires caution and, where the communication is of a personal nature and/or is conducted using a practitioner's personal telephone, can readily transgress professional boundaries.
17. The ease and availability of text messaging, and the casual or familiar style of communication we associate with text messages, can quickly blur the line and mean that professional boundaries have been crossed, almost without noticing. It certainly facilitated the inappropriate conversations between Ms Ballarto and P in this case. It has also created a record of them. But it is the communication itself that is the problem and constitutes professional misconduct. These are conversations that should never have taken place in any format or mode of communication.
18. This case also illustrates that loneliness, which can affect health practitioners like anyone else, can be a risk if the practitioner consciously or not looks to a patient to meet their need for a friend.

Agreed statement of facts and proposed determinations

1. EN Ballarto engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) of section 5 of the National Law, by reason of the matters described at paragraphs 4 to 6 below.
2. EN Ballarto should be reprimanded under section 196(2)(a) of the National Law.
3. EN Ballarto's registration should be suspended for a period of one month under section 196(2)(d) of the National Law.

1. Between on or about 29 April 2017 and on or about 5 June 2017, EN Ballarto engaged in an inappropriate relationship with [P].

(a) [P] was a psychiatric inpatient at Wyndham Clinic Private Hospital (Hospital) with a history of prior admissions and depression;

(b) during the course of the relationship, EN Ballarto engaged in text message conversations with [P] that transgressed the professional boundaries between EN Ballarto as a health practitioner and [P] as a patient;

(c) during the course of this relationship, EN Ballarto crossed professional boundaries with [P] on numerous occasions including:

• (i) detailing internal matters about the Hospital;

• (ii) discussing private matters including relationships;

• (iii) using sexually, explicit or otherwise inappropriate language; and

• (iv) sending and receiving photos;

(d) during the course of this relationship, EN Ballarto engaged in text message exchanges that were sexually suggestive and/or explicit in nature...;

(e) by engaging in the conduct described above, EN Ballarto has failed to adhere to the following sections of the "Code of Professional Conduct for Nurses" (Conduct Code), which was in force at the time of the conduct described above, and with which nurses must comply. In particular breaching the requirements that nurses:

• (i) Conduct Statement 2: practise in accordance with the standards of the profession and broader health system;

• (ii) Conduct Statement 8: promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care;

• (iii) Conduct Statement 9: maintain and build on the community's trust and confidence in the nursing profession; and

• (iv) Conduct Statement 10: practise nursing reflectively and ethically.

(f) by engaging in the conduct described above, EN Ballarto has failed to adhere to the following sections of the "Code of Ethics for Nurses in Australia" (Ethics Code), which was in force at the time of the conduct described above, and with which nurses must comply. In particularly breaching the requirements that nurses:

• (i) Value Statement 1: value quality nursing care for all people;
• (ii) Value Statement 2: value respect and kindness for self and others; and
• (iii) Value Statement 6: value a culture of safety in nursing and health care.

1. EN Ballarto breached patient confidentiality and privacy:
   • (a) by sharing sensitive information by text message to [P], including by:
     • (i) naming Patient A as being an inpatient of the hospital and providing details about [Patient A's] health to [P];
     • (ii) disclosing details of conversations with Patient A about [P] and facilitating the exchange of numbers between Patient A and [P];
     • (iii) disclosing details of workplace interactions with Patient B and Patient A;
     • (iv) disclosing details of conversations with Patient B, Patient A and Patient C about her friendship with [P];
     • (v) discussing Patient B's ability to be aware when EN Ballarto was in [P's] room; and
     • (vi) discussing the discharge of Patient D, including referencing whether a 'random' (random drug test) may have been completed;
   • (b) by sharing sensitive information by text message to her [then partner], including by:
     • (i) disclosing details about [P] and [P's] relationship with Patient E; and
     • (ii) disclosing details about Patient D;
   • (c) by reading [P's] patient history, prior to [P's] admission, for no clinical reason.
   • (d) by engaging in the conduct described above, EN Ballarto has failed to adhere to the Conduct Code, which was in force at the time of the conduct described above, and with which nurses must comply. In particular breaching Conduct Statement 5: treat personal information obtained in a professional capacity as private and confidential; and
   • (e) by engaging in the conduct described above, EN Ballarto has failed to adhere to the following sections of the Ethics Code, which was in force at the time of the conduct described above, and with which nurses must comply. In particularly breaching Value Statement 7: value ethical management of information.
2. Otherwise engaging in conduct that discloses that she does not possess adequate insight into the needs of vulnerable psychiatric patients and the requisite professional standards of a health practitioner including [text messages about medications she had taken and her then partner had taken, a text message suggesting she might do 'something stupid' by taking medication, and becoming aggressive with [P] when [P] reported [P's] concerns for her well-being, discussing admissions and availability of beds, discussing [P's] overdose by text, and engaging in unprofessional communications while on duty];

(n) by engaging in the conduct described above, EN Ballarto has failed to adhere to the following sections of the Conduct Code, which was in force at the time of the conduct described above, and with which nurses must comply. In particular breaching the requirements that nurses:

• (i) Conduct Statement 1: practice in a safe and competent manner;

• (ii) Conduct Statement 2: practise in accordance with the standards of the profession and broader health system;

• (iii) Conduct Statement 4: respect the dignity, culture, ethnicity, values and beliefs of people receiving care and treatment, and of their colleagues;

• (iv) Conduct Statement 6: provide impartial, honest and accurate information in relation to nursing care and health care products;

• (v) Conduct Statement 8: promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care;

• (vi) Conduct Statement 9: maintain and build on the community's trust and confidence in the nursing profession; and

• (vii) Conduct Statement 10: practise nursing reflectively and ethically;

(o) by engaging in the conduct described above, EN Ballarto has failed to adhere to the following sections of the Ethics Code, which was in force at the time of the conduct described above, and with which nurses must comply. In particularly breaching the requirements that nurses:

• (i) Value Statement 1: value quality nursing care for all people;
• (ii) Value Statement 2: value respect and kindness for self and others; and
• (iii) Value Statement 6: value a culture of safety in nursing and health care.

1. Ms Ballarto's registration has already been suspended for over two and a half years as a result of a decision in July 2017 of the Immediate Action Committee of the Board under s 156 of the National Law.
2. While that is a separate process to the Tribunal's decision, the length of the period Ms Ballarto's registration has already been suspended is a relevant factor in our decision that, in this case, one month's suspension is all that is required to meet the protective purposes of determinations, which include deterring others in the profession from engaging in similar conduct.
3. The one-month suspension is, as Mr Trindade for the Board agreed, a short period, but necessary in the interests of general deterrence - to signal to the profession, together with the reprimand, that the conduct is condemned. To put it in context, had it not been for the long period of suspension already served by Ms Ballarto, her admissions of the allegations and her cooperation in these proceedings, general deterrence would have required a longer suspension than one month.
4. Specific deterrence is of low importance here. Ms Ballarto has used the time out of practice to good effect. She has undertaken further education and, importantly, had the benefit of sessions with a psychologist, Ms Pamela Newman, in 2017 and again in 2020.
5. Subject to Board approval, the recently completed program of education could potentially satisfy the proposed education requirement in the conditions. Ms Ballarto would still be required to write a reflective report, which we consider important, and there are other benefits to the conditions.
6. Ms Newman's report dated 30 January 2020 includes the following relevant observations:

We had a series of sessions ... in 2017, and she has returned to see me in 2020. She presented in 2017 as deeply depressed and highly anxious. She had come to see me very soon after she was stood down, and she was already remorseful about her conduct. She had not realised how depressed, exhausted and unwell she was, and how much that would [a]ffect her work capacity. She was deeply remorseful for the pain she caused, for the boundaries she crossed, and wanted to get the therapeutic and medical help, and the professional training she needed to return to work safely. As mentioned in the previous report, it was clear to me then, that with some therapy, she would gain insight into her own depression and grief reactions, and be willing to learn and follow through with new strategies and ideas.

Ms Ballarto has come to see me again in 2020 and is stronger, happier and clearer about who she is. She has found a new partner, gotten married, continued with her study and built a strong happy life for herself. She presents as calm, considered and insightful. ...

This week Ms Ballarto completed a two-day training at the ANMF on Law and Ethics and last year she completed her Cert 4 in Aging Support at Victoria University. She has also done CPD online, all to keep up to date and engaged in her profession. She reports that she has fought hard to stand up for herself and her right to return to work. She has admitted her wrong doing and accepted the two and a half years of suspension from the profession she loves. Not being able to work put her into precarious poverty, where she was not able to provide for her family as a single mother. It was exhausting, scary and very difficult for her. Even through this dark time, she was able to rebuild herself and continue to fight for her reputation. She has not had the money to employ lawyers [to] argue her case, so has had to learn how to fight for herself.

Ms Ballarto presents as a woman capable of learning from her mistakes, growing forward and gaining insight as a person and as a professional. While in my previous report from 2017, she was not ready to return to work, now I believe she is absolutely capable of working again, excited and ready to be the nurse she always wanted to be.

1. Other information available to us related to the extremely challenging and traumatic circumstances of Ms Ballarto's childhood and adolescence. While nurses must be able to practice competently and ethically irrespective of their own personal circumstances, it is noteworthy that Ms Ballarto has built a 'strong happy life', in all the circumstances.
2. Ms Newman's report and Ms Ballarto's evidence to us at the hearing have been important to our decision that Ms Ballarto has a mature understanding of what was wrong about her conduct, insight into what went wrong, and a deep remorse, along with an understanding of how this type of misconduct could be avoided in future.
3. Without excusing the conduct, Ms Ballarto recognises that she was unwell, exhausted, isolated and depressed. She thought, wrongly, that by engaging with P on a personal level she would be treating P as a person and not as a number and thereby be a good nurse. She knows now that by blurring and then crossing the boundaries she should have observed, the conduct presented a real risk of harm to P and was not what nursing should be. Taking all the circumstances into account and having heard from her, we consider the risk of re-offending to be low.
4. For the above reasons, we are satisfied that the proposed orders address the protective purposes of determinations.

[1] Condition 5 is amended under s 119 of the Victorian Civil and Administrative Tribunal Act 1998, with effect from 21 February 2020 to make necessary corrections to reflect the fact that the Board may approve education already completed and the respondent is yet to return to practice.