Important confidentiality note- On 2 April 2013, the tribunal ordered that under to section 103(3)(c) of the Victorian Civil and Administrative Tribunal Act 1998, any material or information arising from this proceeding which could reasonably lead to the identification of the notifier, or any patients in relation to this application, shall not be published or broadcast or be made available to the public. That order remains in force.

1. Mr Dalton's registration as a nurse is cancelled.
2. Mr Dalton is disqualified from applying for registration as a nurse for 12 months from the date of this order.
3. Mr Dalton is reprimanded.
4. Each of the parties is to advise the Tribunal Registrar within seven days whether they seek to put further submissions to the Tribunal on the question of whether a prohibition order should be made under s 77(6) of the Health Professions Registration Act 2005, and if so, whether they seek to put these orally, or in writing.

1. Mr Dalton is a 70 year old psychiatric nurse. On 7 August 2012, the Tribunal found two charges of professional misconduct proved against him. These related to an inappropriate personal relationship with a female psychiatric patient (patient G) largely comprising at least 456 telephone calls made over a 10½ month period, and misleading the applicant (the Board) during its investigation. It also found one charge of unprofessional conduct proved against him, for failing to ensure that patient G's psychiatric condition was professionally treated.[1]
2. Mr Dalton requested that submissions as to determination be made in writing. Given that he resides in Adelaide, has four children, and that there was no disadvantage to either party, we adopted this course.
3. The determinations which the Tribunal may make are those set out in Section 77 of the Health Professions Registration Act 2005 (the HPRA).
4. The Board submitted that the following determinations should be imposed:
   • A reprimand.
   • Cancellation of Mr Dalton's registration as a nurse.
   • An order under section 77(4)(o) of the HPRA disqualifying Mr Dalton from seeking re-registration as a nurse for a period of 24 months from the date of cancellation.
   • An order under section 77(6) prohibiting Mr Dalton from providing health services in the aged care, disability or personal care fields.
5. Mr Dalton submitted that the following determinations should be imposed:
   • He be cautioned, and/or
   • He be reprimanded

And if the Tribunal believes he has not shown sufficient insight:

• He be required to undertake specified further education or training (in Adelaide) consisting of a two day course.
• He be required to report on his health practice to a specified person (being a registered psychiatric nurse) at specified intervals (being monthly reports for a period of six months).

1. In support of its proposed determinations, the Board submitted that Mr Dalton's conduct with respect Patient G represented a prolonged and serious departure from proper professional standards.
2. The Board also submitted that Mr Dalton's conduct in his dealings with the Board constituted a substantial departure from professional standards in two ways:

(a) His conduct was consciously misleading and intended to defeat the Board's proper investigation into serious allegations against him.

(b) He sought to take advantage of Patient G's vulnerabilities by portraying her as delusional and unreliable so as to discredit her claims when he knew them to have substantial truth.

1. The Board acknowledged that Mr Dalton has been suspended for over three years (since 15 April 2010) but submitted that the only determination which appropriately protects the public and the standards of the profession is an order cancelling his registration, and preventing him from seeking re-registration for two years.
2. The Board also pointed to material in the Tribunal Book which demonstrated that notwithstanding his suspension in Victoria, Mr Dalton continued to practise as a nurse in South Australia while suspended during 2010. The relevance of this was said to be that it demonstrates Mr Dalton's lack of regard for his professional obligations. Mr Dalton was cautioned on 29 March 2011 by the new Board for practising while suspended between 1 July and 10 August 2010.[2]
3. In seeking cancellation, rather than suspension, the Board also pointed to the following factors:
   • Mr Dalton's lack of real insight into the power imbalance between him and his patients.
   • That Mr Dalton only made those admissions forced on him by the overwhelming evidence of the telephone calls.
   • That Mr Dalton sought to denigrate Patient G and others who gave evidence against him, such as Mr Smith.
   • That he maintained in evidence assertions found by the Tribunal to be false and misleading.
   • That he displayed a significant lack of candour in his dealings with the Board, which he refused to acknowledge in his oral evidence.
4. The Board submitted that there can be no presumption that Mr Dalton is fit to practise as a nurse now, or will be at any point in the future. Therefore, his registration should be cancelled.
5. The Board also sought that an order be made extending more broadly than just to Mr Dalton's work as a psychiatric nurse. It submitted that an order should be made under section 77(6) prohibiting Mr Dalton from providing health services in the aged care, disability or personal care fields.

1. Mr Dalton's Submissions on Determination commenced with statements about what it was said were three 'inconsistencies' in the Tribunal's decision of 7 August 2013. In effect, he was contesting the Tribunal's findings on three specified matters.
2. The financial hardship suffered by Mr Dalton due to his being suspended for over three years was referred to. It is noted that in his Submissions on Findings, Mr Dalton said that his income has fallen from $100,000 per year to $37,000 per year as a result of being suspended.
3. The written submissions contained a number of statements to the effect that Mr Dalton now has insight into his conduct, and would not repeat it. These included the following:

Mr Dalton did not intend to continue talking to Patient [G] on the telephone, but unfortunately Mr Dalton decided to try to help patient [G]. Mr Dalton accepts now this was a mistake.[3]

Mr Dalton has had time to consider his conduct in relation to Patient G and is committed to not repeating such behaviour[4]

Mr Dalton did not attempt to demonstrate at any time that his conduct in relation to Patient G was right and proper. Mr Dalton was giving the reasons why the conduct took place, but admitted it was not proper conduct. There is a significant difference between justifying why the conduct was correct and proper and admitting it was wrong but giving the reason why the conduct took place.[5]

1. The submissions denied the Board's contention that he had continued to dispute allegations against him in the face of overwhelming evidence. They pointed to the fact that he had referred to his telephone conversations with G in his statement of 18 March 2010, and that in evidence he had acknowledged his 'extensive counselling' of G.
2. No character references, nor any other information about Mr Dalton were provided to the Tribunal.

1. In considering the determinations which should be imposed, our primary concern is the protection of the public, and the maintenance of professional standards in the eyes of the public.[6] While our function is not to impose a 'punishment', specific and general deterrence[7] are both legitimate considerations.[8]
2. It is also important for us to consider the extent to which Mr Dalton has insight into his professional misconduct and unprofessional conduct. This is because it affects the extent to which the public may be placed in danger of harm due to a repetition of such conduct, or similar conduct. [9]

1. As stated in Williams v Medical Practitioners Board of Victoria,[10] insight might be reflected in a number of ways, such as:
   • An understanding of the nature of the conduct;
   • An acceptance that the conduct was wrong;
   • An appreciation of why conduct engaged in; empathy with the consequences;
   • A willingness to take measures to identify risk factors and to avoid similar behaviour.
2. Mr Dalton's extensive telephone counselling relationship (involving at least 456 telephone communications between Mr Dalton and G over a 10½ month period) was inappropriate because it amounted to a personal relationship with a patient he initially came into contact with as a nurse in the course of his professional work. Mr Dalton's detailed evidence as to 'little tasks' he gave G to do, and that she relied on him 'a lot', clearly demonstrated the power imbalance between them.
3. Throughout his evidence, Mr Dalton repeatedly maintained that as a 'Samaritan', when a person calls you and they are in need, you don't refuse to help them. He also said that what he did in his own time was his own business. He never accepted in his evidence that the counselling should not have occurred at all. It was clear he felt that a telephone counselling relationship, even a very intensive one such as he admitted having with G, was acceptable, whereas a relationship involving direct contact was not. In any event, we found on the evidence that he was present with G on one occasion, on 31 May 2009, when the telephone call was made from G's landline to SwingShift nursing agency.
4. Mr Dalton did show some small degree of insight into the inappropriateness of his 'Samaritan' activities. Near the end of his evidence, he said in answer to a question from the Tribunal that with hindsight he shouldn't have continued his telephone counselling of G for the length of time he did. He said he accepted he should have referred the things G was raising with him about issues in her life to her treating team. But this concession came right at the end of his evidence, and his case throughout was that it was not unreasonable for him to provide such 'Samaritan' counselling, albeit that at the end he said it had gone on too long. In fact, it should not have occurred at all, and Mr Dalton showed no understanding of this.
5. Mr Dalton pointed to the evidence he gave explaining how he maintained professional boundaries when he has a chance encounter with a patient in a supermarket, or other public place. And he stated he would never enter into a relationship with a patient. Be that as it may, it does not show insight into the circumstances before us.
6. Mr Dalton's conduct and evidence in relation to the telephone call made in the guise of 'Alan' to Mr Chamberlain of the Avalon Outreach Program on 29 June 2009 reveals the extent of his lack of insight. His explanation for the call was that G was very anxious and tense, and had called him in tears saying she didn't want to go to Avalon.
7. We rejected Mr Dalton's evidence that he disclosed to Mr Chamberlain that it was he, Barry Dalton, who was speaking. Rather, we accepted Mr Chamberlain's version that Mr Dalton made this call in the guise of 'Alan', purportedly a neighbour of G's. This was completely unacceptable. The action he took was dishonest. It was likely to have the effect of isolating G even further, and was detrimental to her interests. Even if Mr Dalton genuinely believed that she should cease involvement with the Avalon Outreach Program, he should not have taken it upon himself to seek to bring that outcome about without taking steps to involve her treatment team.
8. Mr Dalton's lack of insight was further demonstrated by his dismissive attitude towards G's treating team, suggesting they were misguided, and did not understand what kind of person G really was. But again, even if that was the case, that was all the more reason for Mr Dalton to engage with G's treating team - to report what he had become aware of about her current mental state (after considering the issue of any consent required to be given by G). Yet he did not do this.
9. Mr Dalton did not display any real empathy for the effects which his conduct had on Patient G in terms of undermining her treatment, and increasing her isolation.
10. He showed no understanding that being sexually active could make her more vulnerable, instead implying it indicated she was more worldly and less vulnerable.
11. In terms of willingness to take measures to avoid similar conduct again, Mr Dalton's submission was that in any future role he would be supervised, there would be somebody else in charge of the ward. Be that as it may, the contact with the patient in this case was generally by telephone, and not while Mr Dalton was on duty. So it is much harder to monitor.
12. We are unconvinced that Mr Dalton really accepts he should not have engaged in the relationship he did with patient G, at all.
13. Mr Dalton's refusal to accept both the finding that he was present in G's flat on 31 May 2009, and the Tribunal's preference for the evidence of Constable Bickerstaff and Mr Smith over his own, demonstrates that he has no remorse for these aspects of his conduct. These findings of the Tribunal are no longer open for dispute in this forum.
14. Finally, we are very concerned that Mr Dalton stated in his evidence that he again had had telephone contact with G in September 2010, well after she had complained to the police, and when the investigation by the Board was well underway. This, and the fact that he defended this contact in his evidence, is a further demonstration of Mr Dalton's lack of insight into the inappropriateness of his conduct.

1. Mr Dalton's lack of candour is a relevant consideration. There were a number of aspects of Mr Dalton's evidence which we did not believe, or where his earlier versions were shown to be untrue once the telephone records were obtained. We made adverse findings as to his credibility. In particular:
   • We found his initial statements in 2010 to the effect that he did not know Patient G undermined his credibility.
   • Mr Dalton changed his story as to when and how the telephone communication commenced. Initially, he said this was initiated by G in May or June 2009. But after receipt of the telephone records December 2011, 20 months after the investigation commenced, he had to accept it commenced on 1 April 2009, when he rang G at 8.24am.
   • Initially, his responses gave the impression that his contact with G was far less than became apparent when the telephone records were obtained. They disclosed that he made 386 calls to her during the 10½ months from April 2009-mid February 2010. We found that in doing so, he mislead, or attempted to mislead the Board during its investigation.
   • The story that his contact with G flowed from the loss of his glasses case we did not find credible.
   • Contrary to Mr Dalton's denial, we found that the only reasonable explanation for the call from G's landline to SwingShift nursing agency on 31 May 2009 was that he was present with her at her flat.
   • We did not accept Mr Dalton's version that he had properly identified himself in the telephone call he made to Mr Chamberlain on 29 June 2009. We instead accepted Mr Chamberlain's evidence that he had referred to himself as 'Alan', a neighbour.
   • We preferred the evidence of Constable Bickerstaff and Mr Smith to that of Mr Dalton in relation to his telephone conversations with them.
2. We note however that we did not make definitive findings about the statements attributed to G on a number of issues. We were concerned about relying on her hearsay and untested statements, given her mental illness, and the lack of information which would reassure us as to its reliability. So while we made the findings referred to above, we did not wholly accept the Board's contention that Mr Dalton 'sought to take advantage of Patient G's vulnerabilities by portraying her as delusional and unreliable so as to discredit her claims when he knew them to have substantial truth'.
3. We did however find:
   • The evidence did not support Mr Dalton's assertions that G was a 'practising prostitute'.
   • Mr Dalton's statement that G used to call him from a public phone box was implausible, and
   • It was highly unlikely that G would have been to Mr Dalton's flat when he was not there.
4. Overall, Mr Dalton's unsatisfactory responses led to many questions remaining unanswered after hearing all the evidence. Mr Dalton did not generally acknowledge that significant aspects of his versions of events were unrealistic or implausible.
5. We did not find that there was sufficiently clear and cogent evidence for us to be satisfied to the requisite degree that there was a sexual relationship, as put by the Board. Nevertheless, it is appropriate for us to take into account our conclusions about Mr Dalton's credibility and his conduct during the investigation in determining whether he is a fit and proper person to practise now. Our determination is not based in any way on an assumption that there was a sexual relationship with G.
6. Mr Dalton's lack of candour is relevant both to the protection of the public directly, in terms of being able to be trusted to act in the best interests of patients, and also to the considerations of specific and general deterrence.
7. Mental health nurses occupy a position of trust. It is important that there can be confidence that where an investigation takes place, a nurse can be trusted to respond to it with honesty.
8. Secondly, the reputation of the nursing profession is harmed by such a lack of candour, so this suggests the imposition of a determination which serves to deter both Mr Dalton personally, and other nurses from acting other than with complete candour.

1. In relation to the allegation of practising in South Australia while suspended on 2010, Mr Dalton's position was that he had been advised by the Australian Nurses Federation (ANF) that he could continue to practise in South Australia pending the coming into effect of the National Law there. Given the uncertain state of the information that Tribunal has in relation to this matter, and that it relates to conduct of a different nature for which Mr Dalton was reprimanded, we place no reliance on these events in reaching our determination.

1. Mr Dalton has already been suspended for a significant period, almost three and a half years. The time the process has taken was contributed to by his lack of candour in the initial stages of the investigation. This took a different turn once the telephone records were received about 20 months after Patient G made her report to the police. We accept that this delay has caused Mr Dalton substantial financial hardship.
2. His suspension must be taken into account in considering the determinations we make. This factor is not overriding, however, since the primary consideration must be whether, if Mr Dalton resumed practise as a nurse, that would represent a danger to the public now.
3. The three findings against Mr Dalton all concern related conduct. A single determination covering all three charges is appropriate.
4. We take into account Mr Dalton's age, 70, which means that any further interference with his right to practise will have a more significant impact on him than on a younger man. We note his statements that he has many years' experience in social work and nursing, and the submission that boundary issues have never been a problem up to now. We accept his statement that he has never been convicted of any offence in the United Kingdom or Australia other than minor traffic offences.
5. In considering the extent to which Mr Dalton might represent a danger to the public now, we take into account the matters detailed above. Mr Dalton sought to give assurances in submissions filed on his behalf that he has firmly resolved he will not engage in such conduct again. What is of more significance than statements in submissions, however, is our assessment of his actions, and his statements in evidence.
6. We do not believe Mr Dalton has, even after three and a half years, demonstrated that he understands that his telephone counselling relationship with G was wrong, and that his conduct towards her was likely to be harmful to her. G was a vulnerable and isolated female patient living in the community and suffering a profound mental illness. Additionally, his lack of candour and his failure to recognise that the explanations he has given for his conduct are not believable, support the conclusion that he is not presently a fit and proper person to practise as a nurse.
7. In the light of these considerations, we have determined that Mr Dalton's registration should be cancelled. Giving weight to the fact that he has already been suspended for three and a half years (including the two years since the commencement of these VCAT proceedings) we determine that he should not be eligible to apply for re-registration for a period of 12 months from the date of this decision.
8. It is also appropriate that Mr Dalton receive a reprimand, conveying the community's denunciation of his conduct.
9. Whether any supervision or further education (as suggested by Mr Dalton) is necessary, can be considered at the time when any future application for registration is considered by the Board. At that time, consideration would of course also be given to an assessment of Mr Dalton's own health and suitability, including progress made in relation to the matters referred to above, which have led to cancellation.

1. Although it is not entirely clear from the written submissions, we understand that Mr Dalton seeks that a decision on determinations be made by the Tribunal before any consideration is given a possible order under s 77(6) of the HPRA. Now that we have decided Mr Dalton's registration should be cancelled, that question does arise. Allowing further submissions on this now will extend the hearing process even more, but given the profound effect it would have on Mr Dalton and his family, and what the Board described as the 'novelty' of the application in Victoria, we are prepared to allow the respondent the opportunity to put further oral or written submissions to the Tribunal on this question if he wishes to do so.

[1] VCAT matter B194/2011, decision of 7 August 2013, referred to as 'decision on Findings'.

[2] In fact, it appears from the material in the Tribunal Book that Mr Dalton worked from April 2010 to August 2010 in South Australia. The caution only related to the period from 1 July to 10 August 2010.

[3] Respondent's Submission on Findings, page 29.

[4] Respondent's Submission on Determination, page 5.

[5] Respondent's Submission on Determination, page 6.

[6] Ha v Pharmacy Board of Victoria [2002] VSC 322 at [91]- [97].

[7]Wilks v Medical Practitioners Board of Victoria (2007) VCAT 2439 at [128]; Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349 at [45]; Von Schrenk v Dental Practice Board of Victoria [2008] VCAT 2302 at [100]; Chinese Medicine Registration Board v Woo [2010] VCAT 753 at [44]; Dental Board of Australia v Gardner [2011] VCAT 1483 at [27].

[8] See eg Law Society of New South Wales v Bannister, unreported, NSW Court of Appeal, 27 August 1993 per Sheller JA; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471.

[9] Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997 per Gillard J at p13.

[10] [2008] VCAT 1784 at [99], referring to Morris v Psychologists Registration Board (unreported decision of the Supreme Court of Victoria, per Harper J, 19 December 1997).