Important confidentiality note- On 2 April 2013, the tribunal ordered that under to section 101(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could reasonably lead to the identification of the notifier, or any patients in relation to this application, shall not be published or broadcast or be made available to the public.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 is found guilty of two charges of professional misconduct, and one charge of unprofessional conduct.
2. The applicant is to file and serve written submissions on the question of the determinations the Tribunal should make in the light of these findings by 16 August 2013.
3. The respondent is to file and serve written submissions and any other material he wishes to rely on in relation to the question of the determinations the Tribunal should make in the light of these findings by 28 August 2013.

1. Mr Barry Dalton is a 70 year old psychiatric nurse. He stated he has a total of 27 years experience in social work and 25 years experience in nursing, 52 years altogether. This has included 21 years as a psychiatric nurse.
2. In his evidence, he said he trained and worked in these fields in England. He also lectured at Bristol and Bath Universities. And he said he engaged in voluntary work with the 'Samaritans' in Cheltenham and Gloucester for 12 years. Samaritans is an English organisation which has as its primary aim to reduce the incidence of suicidal feelings and suicidal behaviour. At Samaritans, Mr Dalton worked in telephone counselling of people affected by mental illness, domestic violence and drugs. He also trained other Samaritans in telephone counselling.
3. In 2002 he migrated to Australia. He worked at various facilities in South Australia as a registered psychiatric nurse. From September 2008 to March 2010, he worked at various health facilities including hospitals and psychiatric wards in Melbourne. His wife and four children continued to live in South Australia during this time. He worked as an agency nurse. He worked for several agencies, including SwingShift Nurses (SwingShift). For part or all of this period Mr Dalton lived in a bungalow at the back of a residential property in Ivanhoe, owned by the recruitment manager of SwingShift.
4. After the events the subject of this hearing, he returned to South Australia, in April 2010.
5. This hearing concerns two separate allegations against Mr Dalton, relating to two different female patients, in September 2008, and over the period March 2009 to February 2010.
6. In September 2008 at Maroondah Hospital, Mr Dalton had allegedly asked 'Patient T', a patient in a locked 'seclusion' room, to lift her top so as to expose her breasts to him through a window between the seclusion room and corridor.
7. On 31 March 2009, Mr Dalton was working at North West Mental Health's (NWMH) facility in Coburg. He administered a routine fortnightly 'depot' injection to a patient referred to as G. This was for the management of her psychiatric condition. He says he never saw her again. He did, however, almost two years into the investigation, state that he made and received numerous phone calls from her over the ensuing period. The Board, on the other hand, alleges he embarked on a sexual relationship with G, which lasted from 1 April 2009 until February 2010.
8. On 16 February 2010 patient G attended Brunswick Police Station. She stated she was in a relationship with Mr Dalton. She wanted to end that relationship. She was fearful of what he might do if she did, however,
9. G suffers from schizophrenia. In April 2009, she was 42 years old. At this time she had a treating team, including a psychiatrist, a senior psychiatry registrar (Dr Gothani Madadenlya), a case manager (Ms Tara Coppins, who was also qualified as a psychologist) and a general practitioner.
10. G also received assistance from community support workers from the Merri Community Health Service's Avalon Outreach Program (Avalon). First, from Mr William Chamberlain, and then, from 17 July 2009, Ms Laura Vecchio. Ms Coppins and the Avalon workers all described G as socially isolated and vulnerable.
11. The police took no action in response to G's presentation at the police station on 16 February 2010 apart from telephoning Mr Dalton, and Ms Coppins. But when her treating team became aware of G's report, enquiries commenced. The next day, 17 February 2010, G told Ms Coppins that she had had sex with Mr Dalton over one hundred times. Her treating team had not been aware of G's alleged relationship with Mr Dalton or indeed, that she had been in a long term relationship with any man.
12. On 9 March 2010, NWMH's Director of Nursing, Mr Brian Jackson, told Mr Eric Smith, the owner and manager of SwingShift, about the allegations involving Patient G.
13. Mr Smith rang Mr Dalton and told him he would not receive any more shifts. He also gave evidence as to what Mr Dalton told him about the extent of his connection with Patient G.
14. On 9 April 2010, Mr Smith notified the Nurses Board of Victoria (the predecessor body to the present applicant) of the allegations involving Patient G.
15. On 15 April 2010, Mr Dalton's registration was suspended by the former Board. Two subsequent requests to lift this suspension have been refused. Mr Dalton remains suspended.
16. The Board's investigation in relation to both alleged matters continued throughout 2010 and 2011. Mr Dalton provided two written statements, one dated 18 March 2010, and another, through his then lawyers, Ryan Carlisle Thomas, dated 6 July 2011. On 1 July 2010 the Health Practitioner Regulation National (Law) 2009 (National Law) commenced. The former Nurses Board of Victoria ceased to exist. The new Nursing and Midwifery Board of Australia was established and stepped into the shoes of the former Board. It is the applicant to these proceedings. It is assisted by the Australian Health Practitioner Regulation Agency (AHPRA) in carrying out its functions.
17. In December 2010 AHPRA asked Mr Dalton to supply records of telephone calls made on his mobile phone during the relevant period. He responded through his solicitors in February 2011 that his phone company had told him these records were not able to be obtained. This proceeding was commenced at VCAT in October 2011. A subpoena was issued interstate, to Optus Administration Pty Ltd (Optus) in New South Wales. In December 2011, Optus provided records of all calls made by Mr Dalton on his mobile phone between 1 March 2009 and 1 July 2010. There were 386 calls made from Mr Dalton's mobile phone to G's home landline between 1 April 2009 and 18 February 2010.
18. After a number of consent adjournments, this matter came on for hearing on 2 April 2013. By this stage, Mr Dalton's financial position had deteriorated, and he could no longer afford paid legal representation. At a directions hearing on 25 March 2013, he was given leave to be represented by his wife, Mrs Sarah Dalton. At the commencement of the hearing proper, she stated she had recently been admitted to practice as a lawyer in South Australia, but did not hold a Practising Certificate. She was granted leave to appear as a professional advocate. Whilst this was obviously far from an ideal situation, it was regarded as better than having Mr Dalton appearing in person. One of the alleged victims, Patient T, gave evidence in the case - by telephone - and was cross-examined by Mrs Dalton.
19. Patient G did not give evidence. Ms Laura Vecchio said she believed that giving evidence would be detrimental to G's mental health. Thus the serious allegation of the alleged sexual relationship between G and Mr Dalton arises from the hearsay statements of G. The Board points to a large number of inconsistencies in Mr Dalton's story, in support of its case that he had a sexual relationship with G.
20. The hearing ran for the full allotted time of four days. There was not time for final oral submissions and Mr and Mrs Dalton live in Adelaide. Mrs Dalton requested that final submissions be in writing. This was agreed to and after the hearing written submissions were received from the Board and then from Mrs Dalton. Submissions in Reply were then received from the Board and a further written submission was subsequently received from Mrs Dalton. Although this latter submission was not provided for in the orders made at the conclusion of the hearing, we have considered it, save to the extent it contains statements which seek to explain, or add to, evidence given at the hearing. The submission component of it largely repeated matters which had already come to the Tribunal's attention.
21. The charges are set out in full in the appendix to this decision. In summary, however, the charges are as follows:

1. Indicating to Patient T to expose her breasts to him.
2. Failing to have regard to, and to take steps to protect and promote the interests of Patient T

1. Having sexual relations with Patient G, a psychiatric patient he had met during the course of his practice as a registered nurse.
2. Improperly initiating and/or pursuing, and participating in an inappropriate personal relationship with a vulnerable person, namely Patient G, a psychiatric patient he met in the course of his practice as a registered nurse.
3. [withdrawn]
4. [withdrawn]
5. Failing to manage Patient G's behaviour in a professional manner and/or to ensure that her psychiatric condition was professionally treated.
6. Misleading the Board and the Board's investigating officers during the investigation by:

(1) Denying or minimising the number and frequency of telephone calls he made to Patient G and the reason for those calls.

(2) Falsely claiming Patient G was a prostitute who offered to have sex with him (in the absence of any such evidence), and

(3) Falsely stating he had only met Patient G on one occasion.

1. Five of the remaining charges against Mr Dalton (charges 1, 2, 3, 4 and 8) allege unprofessional conduct or professional misconduct. The Board contends the latter, more serious finding, should be made in each case. Charge 7 alleges unprofessional conduct or unsatisfactory professional performance. Again, the Board contends the more serious finding- of unprofessional conduct- should be made.
2. All the charges except for charge 8 (misleading the Board) allege that Mr Dalton contravened an applicable code of behaviour and/or otherwise breached his ethical responsibilities. The applicable code of behaviour is the Australian Nursing and Midwifery Council's Code of Professional Conduct for Nurses in Australia (2006) which provides:

Nurses recognise that vulnerable people, including children, people with disabilities, people with mental illness and frail older people in the community, must be protected from sexual exploitation and physical harm.

1. In terms of ethical responsibilities, the Australian Nursing and Midwifery Council's Code of Ethics for Nurses in Australia (August 2008) provides:

The power relativities between a person and a nurse can be significant, particularly where the person has limited knowledge; experiences pain, illness and fear; needs assistance with personal care; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and people in their care that must be recognised and managed.

1. Finally, Standard 1.2 of the Australian Nursing and Midwifery Council's National Competency Standards for the Registered Nurse (2006) requires nurses to:

1. Charges 1, 2, 3, 4 and 7 relate to things alleged to have been done by Mr Dalton concerning patients T and G which were the subject of a notification made prior to 1 July 2010, the date when the National Law came into effect. So they are to be dealt with under the provisions of the Health Professions Registration Act 2005 (HPRA).[1] Charge 8 (misleading the Board between 13 April 2010 and November 2012) relates to the process of dealing with the notification concerning one of the two patients, and so is to be dealt with under the HPRA as well.

1. Although the civil standard of proof applies (namely the balance of probabilities, not the criminal standard of beyond reasonable doubt), the degree of persuasion required is affected by the seriousness of the allegations made. In cases such as this, where the allegations are very serious, the Tribunal must feel an 'actual persuasion' of the correctness of the matters alleged.[2]
2. The classic statement of the common law is that of Sir Owen Dixon in Briginshaw:

The truth is that, when the law requires proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue had been proved to the reasonable satisfaction of the Tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences.

1. This was affirmed by the High Court in 1992 in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd. In a joint judgment, Mason CJ, Brennan, Deane and Gaudron JJ said:

...the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary where so serious a matter as fraud is to be found. Statements to that effect should not however be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved...".

In this case, the allegation of a sexual relationship in particular is of the highest level of seriousness, certainly at, or even above, the level of fraud referred to in the above passage.

1. In 2010, Victoria adopted the Uniform Evidence Act (in the form of the Evidence Act 2008). Section 140 has been described as codifying[3] the Briginshaw test. It states:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account-

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

1. Here, as did the Tribunal in Naim, we will approach the determination of the various serious allegations made by the application of a standard of proof which is no less rigorous than the one postulated by Sir Owen Dixon in Briginshaw or codified in s.140 of the Evidence Act 2008.

1. The following witnesses gave evidence in relation to the alleged incident involving Patient T:
   • Mr Andrew Munro, Investigating Officer for the former Board, and now for AHPRA.
   • Patient T (by telephone).
   • Mr Mark Thornett. At the relevant time he was Acute Operations Manager of Eastern Health's Adult Mental Health Service at Maroondah Hospital.
   • Mr Eric Smith, owner and manager of SwingShift.
   • Mr Dalton.

However, there were only two direct witnesses to the alleged incident involving patient T: Mr Dalton and Patient T herself.

1. On 5 September 2008, Patient T was admitted to Maroondah Hospital as an involuntary patient. T was 32 years old. Patient T's mother reported that T had taken her young child to the supermarket at midnight, or perhaps 3 am. Her mental status on admission was described as:

Overactive and dancing around, mildly agitated, suspicious and paranoid. Pressured speech, tangential. Poor insight and judgment.

T said in her evidence that she was admitted due to drug-induced psychosis.

1. T was initially admitted to the hospital's Low Dependency Unit and later transferred to the High Dependency Unit (HDU). It took some time for T's condition to stabilise. She was not discharged until 3 October 2008.
2. The incident involving T allegedly exposing her breasts to Mr Dalton occurred whilst T was in 'seclusion'. This is a locked room where the patient is contained when his or her own behaviour is such that this is required for the patient's own safety, and the safety of other patients and staff. It is obviously a very serious measure to lock a patient up in a seclusion room. The only furniture in the seclusion room is a low padded bench, or bed. There are three windows: first, there is a window approximately 50 cm by 50 cm set in the top half of the door from the corridor to the seclusion room Second, there is a small window (the size of which was disputed) in the wall of the seclusion room, recessed from the corridor side. This window is at 45o to the door, and so enables a staff member to view any parts of the room not visible by looking through the window in the door (in particular where a patient may be crouching against the bottom half of the door). Third, there is a window to the external courtyard, which appears to be purely to provide light. It is not large, and is set well above head height.
3. When a patient is in seclusion, additional 'seclusion clinical observations' are required to be taken every 15 minutes.
4. T spent two periods in seclusion on sequential nights:
   • From 5 pm on 10 September to 8 am on 11 September 2008 (15 hours).
   • From 3.45 am to 5.30 am on 12 September 2008 (1¾ hours).

Mr Dalton was on duty on night shift on both of these occasions.

1. The two charges against Mr Dalton allege that the incident occurred on or about 16 September 2008. Although the charges were amended on 12 February 2013, this alleged date was not altered. T could not recall exactly what day the incident allegedly occurred. However, given that T described the incident as her standing close to the window in seclusion, facing Mr Dalton outside in the corridor, it must have occurred on the night of 10/11 September, or in the early morning the following night, 12 September 2008, since these are the only occasions when T was in seclusion. Although T stated she reported the incident immediately[4] the first report of the incident in the patient records is on 16 September 2008. This was an entry made by Michelle Taylor (who is referred to only as 'Health Care Provider') in the on the Hospital's electronic system for producing incident reports. The entry stated:

Staff member Robyn Cheun (agency) reported receiving complaint from T's mother that T had been asked by male agency night nurse to lift her top on several occasions whilst she was in seclusion. I told Robyn that I would discuss concerns with Mark Thornett as I had previously observed unusual behaviours from T when this same staff member commenced shift, this behaviour was also witnessed by another staff member Cassie who came to me concerned at T's behaviour (accused nurse Barry Dalton from Swing Shift).[5]

1. On 17 September 2008 Mr Thornett authorised for all of Mr Dalton's future shifts to be cancelled immediately. He contacted SwingShift to arrange this.
2. Mr Dalton was asked by SwingShift to respond to the allegation. He did so by handwritten letter dated 17 September 2008 addressed to SwingShift's Operations Manager.[6] He denied the allegation. Mr Thornett offered to meet with Patient T and her mother to discuss this allegation. On 30 September 2008, he met with T's mother (but not Patient T). T's mother said she did not want to pursue the alleged incident at that time. She did not want to make a report to the police. It was noted there were no witnesses to the incident and Mr Dalton was not going to be working at Maroondah Hospital while her daughter was an in-patient. In her evidence, T said her mother was very anxious and stressed. She wanted it all to be over with.
3. The conclusion of the Hospital at that time was that the allegation was unable to be proved and so no further action was taken.
4. This matter came to the Board's attention because it was one of the matters referred to in SwingShift's notification to the former Board about the conduct of Mr Dalton, made on 9 April 2010 (after the allegations relating to Patient G came to light). As part of the Board's investigation, Patient T was interviewed by Mr Munro on 13 September 2010. She stated that by then her moods had been stable for some time and she had been clean and sober for 10 months. In her evidence given to the Tribunal by telephone on 2 April 2013 T stated she had been using amphetamines and marijuana in 2008, but had now been off these for four years.
5. Mr Munro's summary of his interview with T on 13 September 2010 included the following:

T had been in seclusion for some time. She had been banging on the door to be released. Barry Dalton a nurse then came up to the window. He then dangled the keys in a teasing manner. He was smiling. Then Barry Dalton (BD) gestured for T to lift up her top. BD did this so that T could be released. BD placed his hands at either side of his top and indicated to lift it up and down. It was very clear to T that BD wanted her to lift up her top. T was in a vulnerable state and she did what BD asked. T lifted her top up and exposed her breasts. Once T had exposed her breast to BD, he gave her the thumbs up. BD did not release T from seclusion. T just cried.[7]

1. In his evidence, Mr Dalton said that when conducting his 15 minutely observations of T, he looked through the small recessed window in the seclusion room wall, not through the larger window in the seclusion room door. He said that regardless of what the policies of the Hospital might be, that was his practice, and the practice of every other nurse he knew. He explained that in the middle of the night, opening the blind (recessed inside the window in the door) would disturb a sleeping patient because the blind made a squeaky noise. Also, it lets more light into the seclusion room. He said the blind was 'always' closed so a patient can sleep. Even in the daytime, patients in seclusion usually needed to sleep - if they had had a bad night the night before.
2. In her telephone evidence, Patient T said that when the incident occurred, she had been standing with her face up very close to the glass in the door of the seclusion room. She said that she could clearly read his name tag. She said she saw the name 'Barry Dalton' on it and made a mental note of his name, so she could inform the nurse straight afterwards.[8] Mr Dalton said his name tag was in the form of an identity card hanging from a lanyard around his neck. That is, it was at about stomach height.
3. It was Mr Dalton's case that T would not have been able to see his name tag through the smaller window which he said he used. He said it was about 14 inches by 14 inches in size. (Mr Thornett, on the other hand, gave evidence that the recessed window was about two or three feet wide and one foot high, with the bottom of the window about four feet above the floor).
4. Mr Dalton also said that his surname was covered over by tape on his identity card. He produced two identity cards. It appears there was also a third identity card. (This is discussed further in relation to the charges involving Patient G below.) The two identity cards Mr Dalton produced both bore evidence of having had his surname covered over by tape in the past. Mr Thornett said that it was hospital policy that full names be displayed. Nurses who did not display their full names would be asked to remove the tape from their identity card. However, Mr Dalton said that it was common practice, especially in forensic psychiatric nursing, for nurses to hide their surnames, due to fear of harm from prisoners, or their contacts on the outside.
5. For Mr Dalton, it was also put that T's behaviour was quite disinhibited. He said she exposed her breasts to him voluntarily. He said this was consistent with her behaviour whilst in the hospital. He referred to a number of passages in the Progress Notes and in the seclusion notes, including the following (entries are from the Progress Notes except where stated to be from the seclusion notes):
   • 10 September at 6.00 am - very thought disordered ... [entry written by Mr Dalton].
   • 10 September at 11.30 am - T reviewed in HDU by Dr Sarkar reported to be still disinhibited inappropriate dress swapping beds and difficult to manage
   • 10 September at 8.00 pm- ... secluded for low stimulus at 1700 hours urinating in cups and spread it on the floor and under the door, disturbed, ?, poured urine over her pyjamas and bedding ...
   • 11 September at 6.00 am has remained in seclusion all night. Noisy - shouting - naked - demanding - major thought disorder - urinating on floor. Took oral medication willingly. Hardly had any sleep wandering around the room majority of the night. Still remains in seclusion for review at 0800 hours [entry written by Mr Dalton].
   • 11 September at 7.00 am - banging continuously on windows [written entry by Mr Dalton in the seclusion notes].
   • 11 September at 7.16 am - awake. Shouting. Naked on top, totally unpredictable [entry written by Mr Dalton in the seclusion notes].
   • 11 September at 1.00 pm - patient taken out of seclusion by nursing staff earlier this morning.
   • 12 September at 4.00 am - slept until 0250 then woke having wet her bed. Because increasingly disorganised woke other patient up became more agitated. Secluded from 0345 as could not be contained in HDU [entry written by Mr Dalton].
   • 12 September at 5.30 am - seclusion discontinued as sleeping and settled [entry written by Mr Dalton].
   • 16 September at 10.00 am - although appearing settled - nursing staff report disinhibition, tanning without knickers, concern re being over familiar with co-patient.
   • 17 September at 6.00 am - very delusional about male staff and care needs to be maintained by male staff dealing with her [entry by Mr Dalton, countersigned by another staff member].
   • 22 September - T found in bed of co-patient by [a staff member] at start of shift. Was woken by nursing staff and escorted to her bedroom. At approximately 23.10 hrs co-patient Mr [name deleted] was observed getting out of T's bed. T was observed to be naked. Both patients counselled on appropriate behaviour. They both denied any sexual activity. Said 'they were just hugging'.
   • 22 September at 8.35 pm ... evidence of paranoia apparent stating I have fears for my life ... I am afraid of Asians and Africans.
   • 23 September (no time specified) T seen to be socialising selectively with co-patients at start of shift. Was again seen to be over familiar with co-patient Mr [name deleted]. Again counselled on appropriate behaviour. ... soon after she was found on public telephone talking to the police on 000 expressing paranoid delusional ideation. T moved to HDU to restrict further communication to police.
6. In his handwritten statement provided to SwingShift on 17 September 2008, Mr Dalton referred to some of the above incidents. He said he had involved a female staff member in assisting Patient T with showering and changing clothes while he made the bed. He said on another occasion when T was in seclusion semi-naked he asked her to put a blanket around herself and when she turned around she was naked on the top. There was at least one other occasion when a similar thing happened, he said.
7. Mr Dalton's letter of 17 September 2008 also suggested T had previously made at least one unwarranted complaint, and so therefore she should not be believed. It stated

I would like to report that [Patient T] told me on Saturday of last week a member of staff with a beard had touched her (I have not got a beard). I dismissed this as being part of her delusional system and the only two members of staff with beards are [name] and [name].

His unilateral decision that she must have been delusional, and resulting failure to report her claim so that it could be investigated, demonstrate that (contrary to his claims) he was not motivated by concern for T's dignity and welfare.

The Board in effect suggested that this smacks of a person more concerned about protecting their own position, by making allegations which it could be very difficult to test, a year and a half after the event. In our view, whilst it is a matter for judgement, if there was such a complaint, arguably it should have been reported at the time. The above statement does not assist Mr Dalton's credit.

1. Mr Dalton stated in his evidence that his entry in the Progress Notes on 17 September 2008 that care needs to be maintained by male staff dealing with Patient T was 'made as a response to the complaint having been made against him by Patient T'. Mr Dalton frankly said he put that entry into the Progress Notes so as to warn other male staff. That is, 'be careful she's made allegations against me, she might make them against you too'. So there was no suggestion by Mr Dalton that this entry pre-dated the complaint, and so no suggestion that it could bolster his story in that way.
2. Detective Sergeant Jennifer Monk provided a letter to VCAT dated 18 June 2012 in relation to the police's consideration of the circumstances of the matter involving Patient T, following their inspection of the VCAT file. She stated the police had considered a possible charge against Mr Dalton under s 51(2) of the Crimes Act 1958 (indecent act against a person with a cognitive impairment by a provider of medical services). Detective Sergeant Monk said the matter had been considered by the Fawkner Sexual Offences and Child Investigation Team, and that legal advice had been obtained from the Office of Public Prosecutions. Her letter stated it was determined there were no criminal offences arising from the circumstances described in the VCAT file in relation to patient T.

1. The question is simply whether we are satisfied to the requisite standard that the incident as alleged did occur. That is, that Patient T exposed her breasts to Mr Dalton, and she did so in response to his request and encouragement to do so. In our view, there are too many uncertainties and inconsistencies in the evidence for us to be so satisfied.
2. We mention first one aspect of the evidence which was strongly contested, but in relation to which we find that the Board's case was not deficient in the way Mr Dalton suggested. This concerned the patient's view out of one of the two windows (either the window in the door or the recessed window) of a person standing in the corridor outside the seclusion room looking in. Patient T said she was sure she and Mr Dalton were looking at each other through the window in the door when the incident occurred. She said she could see from about his waist upwards. She was standing right up close to the window.
3. Mr Dalton, on the other hand said that whenever he checked T, it was through the recessed window to the side of the door. He said the bottom of that window was about approximately four feet six inches above the ground and because the glass was flush with the inside of the seclusion room, and because the window was quite small, it would not have been possible for the patient to see his name on his identity badge hanging on a lanyard. Mr Dalton produced a diagram demonstrating these matters.
4. We find, however, that even if T could not read the name on the identity card through the window, it would nevertheless be possible for her to identify Mr Dalton through general contact on the ward. The Progress Notes demonstrate that there were a number of occasions when Mr Dalton was on duty whilst Patient T was on the ward.
5. Nevertheless, as stated, there are too many uncertainties and inconsistencies for us to be satisfied to the requisite degree that these incidents occurred. These uncertainties and inconsistencies are as follows:
   • The first record of a complaint having been made by T is on 16 September, yet the incident must have happened when she was in seclusion. That is, either four or five days earlier. It appears from the drafting of the allegations that the Board was under the impression up until a late stage, that the incident occurred on the day it was reported, 16 September 2008. Ms Ellyard suggested that there could have been a report on 11 or 12 September, which was not formalised until 16 September. The fact is, however that we have no evidence of any earlier report, so we must assume there was none. The passage of four or five days seems to us to be of some significance. T believed she had reported the incident immediately (as is stated in her interview with Mr Munro) but that was not the case.
   • There are a number of inconsistencies disclosed in the text of the incident report itself. It states that the complaint from T's mother was that Mr Dalton had asked T to lift her top on 'several occasions' whilst she was in seclusion. But in her interview with Mr Munro, T stated there had been just one incident.[9]
   • Second, the author of the incident report, Michelle Taylor, stated she had previously observed unusual behaviours from T when this same staff member commenced shift. No evidence was given by Michelle Taylor.
   • Third, Ms Taylor also stated that such behaviour by T was also witnessed by another staff member, 'Cassie', who came to her concerned about T's behaviour. Again, no evidence was led from that staff member.
   • T's evidence contradicted entries made in the Progress Notes in some respects, thus throwing doubt on the accuracy of her recollection. For example, in her evidence, she stated that she was not naked at any time. She said when she was sunbaking, she was wearing shorts and a bikini top. She also downplayed her sexual disinhibition. This was at odds with the entries in the Progress Notes. We view this as being of some significance, even though some of those behaviours were recorded in the Progress Notes after Mr Dalton stopped working in the ward.
   • T's evidence was only given by telephone. She sounded lucid, confident and open in giving her evidence. The panel did not, however, have the benefit of observing her demeanour and interactions with questioners at the hearing.
   • Although we do not discount T's evidence simply because she was a mental health patient, the particular circumstances of her condition must lead us to treat what she says with some caution. In her interview with Mr Munro, T said she was 'not always aware of my surroundings'. It is clear she had significant mental health issues requiring a stay of one month in hospital, admission to HDU and time in seclusion and that she was given significant levels of medication. T was on regular and additional medication which included; antipsychotic tranquilizers, benzodiazepines to reduce anxiety and insomnia and mood stabilizers. These medications included; Olanzapine, Clonazepam, Temazepam, Diazepam and Sodium Valproate. When asked about the reliability of T's recollection, Mr Thornett said that it is generally more a question of the person's mental state, than the medications they are on, which affects their recollection. He said, however, that he did not have an in depth knowledge of medications. No evidence was led on this from a doctor.
   • Further, T's description of Mr Dalton was not entirely accurate. She said he was in his late 40s or 50s, maybe older, with short sandy/mousey coloured hair, possibly going balding and he had thin features. In fact, Mr Dalton was in his mid-60s at the time. He also said he had a moustache, which T did not mention. And when the issue of whether he did have a moustache was raised in questioning, she said 'I can't quite remember. I don't think so. I'm not sure'.[10]
   • It is possible Mr Dalton's surname on the lanyard may have been obscured at the time. Mr Dalton's evidence was that it was.[11] Mr Thornett gave evidence to the effect that the hospital policy is that full names must be displayed on identity badges, and if a nurse has a badge with the surname covered over, that covering is to be removed. We accept that this does not necessarily mean that Mr Dalton's identity badge would have displayed his surname. We accept that agency nurses, for example, who worked some shifts in forensic psychiatric institutions would have their surnames covered, and they would not necessarily always remove the tape.
6. For all these reasons, we cannot be sufficiently confident that the incident involving Patient T occurred as alleged. We find charges 1 and 2 not proved.

1. In summary, the Board's case against Mr Dalton was that the evidence demonstrated the following: Mr Dalton identified G as an object for a sexual relationship when he treated her by giving her a depot injection on 31 March 2009. Her story, to the following effect, should be accepted: Mr Dalton went to her house on 31 March 2009, and then again the following day, when they had sex for the first time. He attended her house frequently over the next 10 months, and they had a sexual relationship. He came to her house and prepared food. He drank sherry. She washed, ironed and mended his clothes. Mr Dalton's call to Mr Chamberlain on 29 June 2009 in the guise of 'Alan' was an attempt to maintain control over G, and to prevent his being detected. A number of the Progress Notes entries relating to her dealings with men are in fact references to Mr Dalton. He had by force of his will and authority as a psychiatric nurse, convinced her that their relationship must not be disclosed to anyone. He had panicked in his response on the phone to Constable Bickerstaff on 16 February 2010 and to Mr Smith on the phone on 9 March 2010. His written statements of 18 March 2010 and 6 July 2011 sought to minimise the extent to which he initiated contact with her, but at the same time to explain the evidence about his contact with G. He sought to damage her credibility by reference to her paranoid schizophrenia and her alleged activities as a prostitute. His story came under further strain when the phone records were able to be obtained, contrary to his expectations. They show that he misled the Board about the extent of his contact with G, that he was in fact the person who called Mr Chamberlain in the guise of 'Alan' on 29 June 2009. Her phone records also contain the vital evidence that on 31 May at 6.30 pm, a call was made from her landline to SwingShift Nursing. The only reasonable explanation for this is that he was present at her house contrary to his denial, and that he made that call. The numerous inconsistencies and lies told by Mr Dalton together give rise to the strong inference that he did in fact have a sexual relationship with G. The fact that the calls reached a crescendo in early February 2010 is consistent with Mr Dalton trying to prevent G from taking action to end the relationship, or going to the Police.

1. Mr Dalton's version of events has varied over the course of the investigation and the hearing (see below). The version of events which it appears he ultimately adopted was as follows: The only time he ever met Patient G was when he administered a depot injection to her on 31 March 2009. That day, he rang her to see if she had taken his glasses, glasses case and identity badge. Then she started ringing him. When he rang her, he was returning her calls. She became fixated with him. He did not refuse to take her calls because he is trained as a Samaritan, and does not refuse people in need. The large number of short calls was explained by the fact that he gave her advice about 'little tasks' she should carry out, to assist her in coping with day to day life. His actions assisting G as a Samaritan were quite separate from his professional work as a psychiatric nurse. These were things he did in his private capacity. In addition to the calls from her landline, she called him from a public phone box, because she was concerned that her phone was being bugged by the police. He said he did call Mr Chamberlain on 29 June 2009, but correctly identified himself as Barry Dalton, not as 'Alan'. He was doing this to assist G, who was anxious and in tears. He was irritated by all the calls she was making to him. He left several messages with NWMH to ask them to stop her from harassing him. He found an anonymous letter, and a fish bone left at his bungalow in Ivanhoe sometime during July, which he assumed was part of her 'harassment' of him. From speaking to G on the telephone, he has ascertained that in actual fact, she is not as incapable, innocent or naïve as her treating team believed. She pays the rent, she does her own shopping, she buys her own clothes. She gets out and about, meets friends, goes to cafes. She had relationships with up to nine men, including for money. Indeed, she was a practising prostitute. But when she is presented with a carer, she goes into 'helpless mode'.[12]

1. The following witnesses gave evidence in relation to the allegations relating to Patient G:
   • Mr Andrew Munro, Investigating Officer for the former Board, and now for AHPRA.
   • Probationary Constable Phillip Bickerstaff of Brunswick Police Station
   • Ms Tara Coppins - NWMH Case Manager for Patient G.
   • Mr William Chamberlain - Avalon Outreach Program Support Worker for Patient G up to 17 July 2009
   • Ms Laura Vecchio - Avalon Outreach Program Community Support Worker for Patient G from 17 July 2009
   • Mr Eric Smith - owner and manager of SwingShift.
   • Mr Dalton.

1. Attached to Mr Munro's witness statement was a summary of an interview he conducted with Patient G on 6 October 2010.[13] Also present was another female investigating officer from AHPRA, and G's then case manager. The summary comprises 13 detailed paragraphs and sets out G's story of the relationship she said she had with Mr Dalton. The summary was prepared by Mr Munro from questions asked and discussions had during the meeting.
2. The summary relevantly stated that at 6 pm on 31 March 2009 G was at home when Mr Dalton knocked on her door. He had given her a depot injection between 2 and 3 pm at the NWMH clinic in Bell Street Coburg that afternoon. She did not answer the door. Mr Dalton then went downstairs and spoke with a downstairs neighbour. The neighbour and Mr Dalton then went to G's door. Mr Dalton went in and stayed for three hours. He asked for sex, but G told him her bottom was sore from the injection and she couldn't have sex.
3. The following day, 1 April 2009, Mr Dalton again attended G's home. They had sex in G's bedroom. This was the start of a sexual relationship which lasted into February 2010.
4. G said that Mr Dalton had made a statement to the effect that if the Nurses Board found out she should say they met through a newspaper advertisement. No one was to know about the relationship. They never went out, except on one occasion they went to Woolworths and Mr Dalton made G wear his cap so she would not be recognised. She had also been to Mr Dalton's bungalow in Ivanhoe (about which G provided some details), but she did not know the address. He had driven her there once in 2009 and once in 2010.
5. G provided quite a lot of detail about Mr Dalton's appearance and habits, jewellery he wore, the fact that he had no tattoos, no scars and no hair on his chest, details about his siblings in Adelaide and in London. He also gave details about the car he drove - a white sedan with Adelaide numberplates which was always dusty, and the holiday he went on from mid-December 2009 to mid-January 2010. She said he would leave messages on her phone, and she would ring him back on his mobile phone. She would wash, iron and mend his clothes.
6. G said Mr Dalton drank a lot. She also said he told her he suffered from depression. He always bought a bottle of sherry. He would go to G's home after he had finished his work and/or he would stay at her home and then go to work.
7. He used to come with a bag of food. He left a mug at G's home which was black and red and had white flowers on it.
8. G said on 12 February 2010 G became concerned because Mr Dalton locked the door (which he had not done before) and he had a large knife in his bag. She was fearful that he would kill her. She said that on the Monday [presumably 15 February 2010] she contacted the police, and on Tuesday 16 February 2010 she spoke with her case worker Ms Coppins and they both attended the police station.[14] Since then G has changed her address and phone number.
9. Mr Munro also gave evidence about the obtaining of the telephone records. The Board ultimately obtained from Optus records which showed that Mr Dalton made 386 calls to G on his mobile phone between 1 April 2009 and 18 February 2010. It also obtained from G her phone bills from Telstra for her landline for seven of the ten and a half months between April 2009 and February 2010. These showed 68 calls made to Mr Dalton's mobile number. G had thrown out her bills for the other four months- April, July and November 2009, and February 2010. Nor did the Board produce any information from Telstra about those four missing months.
10. In his evidence, Mr Dalton admitted to making those 386 calls, and receiving the 68 calls from G's landline. He also asserted that G made many calls to him from a public phones during that ten and a half month period.

1. We were provided by the Board with a helpful compilation of the calls exchanged between Mr Dalton and Patient G. We have sought to analyse as best we can the pattern of telephone calls, and the evidence about these calls given by Mr Dalton and others, in order to consider the extent to which it supports one or other party's case.
2. There were 454 recorded calls over the 324 days of the relevant ten and a half month period (noting this does not include any calls by G for four of those ten and a half months).
3. The total duration of all 386 calls from Mr Dalton to G was 9 hours, 9 minutes and 53 seconds. The total duration of all 68 recorded calls from G to Mr Dalton was two hours and 24 minutes and 15 seconds.
4. The total calls recorded by both Mr Dalton and G for the relevant months are as follows:
   • April 2009 - 22 (excludes any calls made by G)
   • May - 51
   • June - 44
   • July - 17 (excludes any calls made by G)
   • August - 53
   • September - 60
   • October - 43
   • November - 33(excludes any calls made by G)
   • December -24 (including 1 call only by G after 14 Dec- when Mr Dalton was on holidays)
   • January 2010 - 44 (with first call being on 15 Jan)
   • February - 63 (with last call being on 18 Feb) (excludes any calls made by G).
5. For the seven months for which G's telephone bills were provided to us, it appears G made a total of 123 calls. Of these, 68 were to Mr Dalton's mobile phone and 55 were to other numbers. Local calls were not itemised for all months. However, during May and June 2009, 19 calls were made to Mr Dalton. The Board demonstrated that of the 15 calls to numbers other than Mr Dalton's in May and June, 7 were to her GP, 3 to Mr Chamberlain's number, 2 to a bed shop, 1 to a real estate agency, 1 to Ms Coppins, and 1 to SwingShift nursing agency. (The significance of some of these calls is dealt with below.)
6. The following observations and tentative conclusions can be made from the telephone records:
   • The vast majority of calls were for seconds only. The average duration of all the recorded calls is 1 minute and 24 seconds (for the calls by Mr Dalton) and 1 minute and 12 seconds (for the calls made by G).
   • There was telephone communication between them on slightly less than half of the days during that ten and a half month period.
   • There is only one call between 14 December 2008 and 15 January 2010 (while Mr Dalton was on holiday). That was a 40 second call made by G to Mr Dalton on 28 December 2009.
   • If it is assumed that G's calling pattern for the months of April, July, November and February (for which we have no record) was similar to the months for which we do, then between 30 and 60 calls were exchanged per month for the first eight months.
   • The number of calls increased dramatically upon Mr Dalton's return from holidays in mid-January 2010. There were 32 calls by Mr Dalton in the period 15 - 31 January and 12 by G (44 altogether). On 27 January there were 12 calls (7 by Mr Dalton and 5 by G). Between 1 and 18 February 2010 Mr Dalton made 63 calls, including 13 calls on 10 February 2010. We do not have records of G's calls in February 2010.
   • Calls on most days were initiated by Mr Dalton. From the months where G's telephone records are available, he initiated the call on 85 days, whereas she initiated the calls on 21 days. In his evidence, Mr Dalton contended to the contrary. He said she rang him a lot from a phone box, which would not show up on her telephone records. He said this was because she was a paranoid schizophrenic, she believed the police were bugging her phone. He said she wanted him 'to call her back about a whole range of issues she was having in her life.'[15]. However, the records tend more to support G's statement to Mr Munro that he would leave messages on her phone, and she would have to ring him back. [16]
7. Mr Dalton said that he felt irritated by her calls, but that as a 'Samaritan', you don't reject people. You don't tell them not to ring anymore. You listen to their problems.[17] The Board says the increase in the frequency of calls after mid January 2010 reflects the efforts by Mr Dalton to prevent G terminating their alleged relationship. Mr Dalton says it reflects G's deteriorating mental state at that time, and accordingly, his increased involvement as a 'Samaritan', giving her constant guidance in dealing with issues she faced. The pattern of calls could to some extent be regarded as consistent with both explanations, and so is inconclusive.
8. What is clear from the evidence about the telephone calls is that there was very frequent, generally short, contact between Mr Dalton and G over the ten and a half months from 1 April 2009 to 16 February 2010. In the circumstances, this clearly indicates a close relationship of some kind between Mr Dalton and G. We are not able to draw firm conclusions from the telephone records about the nature of that relationship, however.

1. On 16 February 2010 Phillip Bickerstaff was a probationary constable performing watch house duties at Brunswick Police Station. It was he who attended Patient G when she attended Brunswick Police Station on that day. He prepared a witness statement dated 16 September 2010. He also prepared a supplementary witness statement on 22 December 2011, by which time he had left the police force.
2. In his statement Mr Bickerstaff said that on 16 February 2010 G attended at the watch house counter seeking advice. He said she was accompanied by her case worker. G stated she was currently in a relationship with a male named Barry Dalton. She stated that she wanted to end the relationship. She stated that he was a nurse, and she had met him while she was an inpatient at a psychiatric ward. She stated that she was fearful of what he would do if she decided to break off the relationship with him.
3. In his statement Mr Bickerstaff said he contacted the 'ward' where G had first met Mr Dalton. At first, the manager could not recall Mr Dalton as an employee. Later, however, the manager rang Constable Bickerstaff back and stated that Mr Dalton had in fact worked at that 'institution'.
4. In his oral evidence, Mr Bickerstaff said that he had approached the issue from a family violence perspective. He had considered whether an intervention order or a Family Violence Safety Notice was required. He ascertained from G that there had been no previous incidence of aggression or family violence by Mr Dalton.
5. Mr Bickerstaff said he did not at the time realise that it was an offence for a provider of medical services to engage in a sexual relationship with a patient in their care. He said that sometime after 16 February 2010, he spoke to the case worker and suggested this was a matter to be dealt with by the relevant professional board, rather than by the police. It appears Mr Bickerstaff was an inexperienced officer at the time G attended Brunswick Police Station. He acknowledged he had had little experience of dealing with mentally ill people. His conclusion that the matter was not one for the police was arrived at after he spoke to his senior sergeant. Also, he said that since he has left the force, he no longer has access to the notes he took at the time.
6. There is uncertainty in relation to some aspects of Mr Bickerstaff's evidence. The case worker he said accompanied G has never been identified. Both Ms Coppins and Ms Vecchio said the statement that G was an inpatient at a psychiatric ward when she met Mr Dalton is incorrect. His statement prepared on 16 September 2010 appears to be reliant on the notes he had taken seven months before.
7. Nevertheless, in relation to certain important aspects, we accept the evidence of Mr Bickerstaff. In particular, we accept his evidence about the telephone conversation he had with Mr Dalton on or soon after 16 February 2010. This conversation was referred to by him for the first time in his second statement, 22 December 2011. But the fact that the conversation took place was confirmed by Mr Dalton in his evidence. Their versions of the conversation were different, however. Mr Bickerstaff explained the reason why he recalled the detail of his conversation with Mr Dalton, even after more than three years, was because it was such a 'bizarre' phone call. He said it went for about 20 seconds. He stated he would have introduced himself to Mr Dalton and then asked about his relationship with Patient G. He may have asked Mr Dalton if he was a psychiatric nurse. What Mr Bickerstaff does recall vividly is that Mr Dalton replied 'I'm a solicitor' and then hung up. His impression was that this was a 'defence mechanism' on Mr Dalton's part.
8. Mr Dalton's version of this conversation was to the effect that he laughed when he was asked about the suggestion of a sexual relationship, and Constable Bickerstaff had laughed too. He said he denied that suggestion. He also denied he abruptly ended the call.
9. We accept Mr Bickerstaff's evidence of his telephone conversation with Mr Dalton on 16 February 2010. We accept that Mr Bickerstaff has a good recall of this aspect of the conversation now because it was so bizarre. We also note there is contemporaneous corroboration of Mr Dalton's statement that he was a solicitor.[18] We find Mr Dalton's version is consistent with an attempt to undermine Patient G's reliability. Unlike Mr Dalton, Mr Bickerstaff has no motive for giving a false story.
10. We also accept Mr Bickerstaff's evidence as to G's demeanour: she was 'highly anxious'. Asked whether she was paranoid (in lay person's terms) he said yes, a little bit. He did not believe that G was really in danger of being attacked by Mr Dalton with a knife. He understood the knife was being used to cut up vegetables. [19] She couldn't tell him a lot of detail, and she was 'a little bit scattered and obviously stressed out.'[20] But her manner was not such that he disbelieved G's statement that she was in a sexual relationship with Mr Dalton: 'she was not completely crazy . I didn't believe she was making it up.'

1. Detective Sergeant Jennifer Monk's letter to VCAT dated 18 June 2012 stated the police had considered the circumstances of the matter involving Patient G, following their inspection of the VCAT file. She stated the police had considered a possible charge against Mr Dalton under s 51(1) of the Crimes Act 1958 (sex offence against a person with a cognitive impairment by a provider of medical services). Detective Sergeant Monk said the matter had been considered by the Fawkner Sexual Offences and Child Investigation Team, and that legal advice had been obtained from the Office of Public Prosecutions. Her letter stated it was determined there were no criminal offences arising from the circumstances described in the VCAT file in relation to patient G.

1. Ms Coppins was G's case manager. She was employed by NWMH. She is a psychologist. But in her role as G's case manager she did not act as such. Her role was to monitor G's risk and mental state, her compliance with medication, assist her to engage in community activities and ensure that G attended her medical appointments. She maintained Progress Notes in relation to the care of G, which were attached to her written statement of 6 February 2013.
2. Ms Coppins said G's diagnosis was schizophrenia. That is the diagnosis stated in the incident report of 16 February 2010. She described G as being shy, timid and extremely isolated. She said that prior to involvement with Avalon she had little or no social contact apart from attending her medical appointments and buying food. She said she did not become aware of G having any partner or boyfriend until 16 February 2010. Over the period from April 2009 to February 2011, her Progress Notes contained some entries referring to G's contact with or involvement with men. There are approximately ten such entries. They begin to appear on 1 July 2009. The men are not named. After February 2010, Ms Coppins formed the opinion that a number of these entries in fact relate to Mr Dalton.
3. Ms Coppins' Progress Notes reflect the events of 16 February 2010: she spoke to Constable Bickerstaff by telephone on that day following G's attendance at Brunswick Police Station.
4. On 16 February 2010, G attended at NWMH for an unscheduled appointment. She was reviewed by the Senior Psychiatry Registrar, Dr Madadenlya together with Ms Coppins. Ms Coppins prepared an incident report on 16 February 2010.[21]
5. G was very fearful of Mr Dalton. On 16 February 2010, and over the ensuing weeks, she provided a lot of information to Dr Madadenlya and Ms Coppins about her relationship with Mr Dalton and at least one other man. This is reflected in Progress Notes made by Ms Coppins over the period 18 February - 9 April 2010.
6. On 12 March 2010 Ms Coppins took G to the Brunswick Police Station with the intention of making a statement to the police. Constable Bickerstaff was not there, however. In the end, the idea of making a statement to police was never followed through after conversations between Coppins and Bickerstaff.[22]

1. William Chamberlain was a Senior Community Health Worker with the Avalon Outreach Program assigned to G during the period from February 2009 to 17 July 2009. He stated he supported G to achieve her goals, which included improving her physical health, accessing public transport independently, household tasks, shopping, advocacy, tenancy issues and making friends. He said G was isolated. She had lived with her parents in a flat for many years. However, her father had recently gone into a nursing home and her mother had died. She had her shopping delivered. She did not know how to use public transport. She had no genuine friends. She had worked for about a year in a factory with her mother after leaving school, but for health reasons this had stopped after one year, and she had lived at home ever since. She is now in her late 30s. Her parents had been very controlling. She has poor social skills. She found it difficult to start or engage in a conversation. Mr Chamberlain believed she had never had a boyfriend. He felt her relationship with her neighbours in the block of 12 1960's flats where she lived was one sided: When they needed something like food or money they would ask her, and she would agree. She never reciprocated. Her flat had become rundown but she was not confident enough to ask the landlord to make repairs. She had slept in the same single bed for 30 years. Mr Chamberlain helped her through the process of selecting and purchasing a new bed. She would not have been able to do this on her own.
2. The main point of contention in relation to Mr Chamberlain's evidence related to a telephone call he received from a man on G's behalf on Monday 29 June 2009. Mr Chamberlain said that G was due to have a CT scan that morning. As he was preparing to leave to pick her up to accompany her for the scan, he received a call on his office phone from a male who identified himself as 'Alan'. Alan advised that he was a neighbour of G. He said G no longer wished to participate in the Avalon program in general and wanted no further contact with Mr Chamberlain as she was intimidated by him. 'Alan' said G wanted to cancel today's medical appointment. Mr Chamberlain advised 'Alan' that he did not have consent to speak with him, at which time 'Alan' ended the phone call.
3. Mr Chamberlain cancelled the CT scan and tried to contact G. The next day G rang him and said she wanted the CT scan to go ahead. She also wanted to meet Mr Chamberlain and discuss the events of the previous day.
4. The day after that, 1 July 2009, Mr Chamberlain said he met with G, from memory, at a coffee shop. She told him she did not feel intimidated by him and in fact wished to continue with the Avalon program. He said this was consistent with his observations of G during the first half of 2009. In March 2009, she had expressed concern about continuing to participate in the Avalon program. However, she did continue, and by July, Mr Chamberlain said that her willingness to engage, accept support and disclose personal information reflected the repore they had developed. This was demonstrated by her concerns when he advised her he would be taking three months leave.
5. At the 1 July 2009 meeting, G told Mr Chamberlain that 'Alan' was not in fact a neighbour of G, but a man she was having a sexual relationship with. She said they had met at the local fruit market and the friendship had progressed to a sexual relationship. G described a relationship in which she felt she was being controlled and exploited by 'Alan'. Mr Chamberlain said he felt he was not being given the full story by G about this relationship.
6. Mr Chamberlain had never heard G make any reference to anyone called Alan prior to this. He said he was concerned due to G's naivety in terms of relationships, lack of social skills and history of psychological and physical abuse and her lack of protective behaviour. He said G agreed to accept a referral to a Family Violence Worker so she could receive support from a female worker. For the interim period, they discussed strategies G could employ to protect herself both physically and emotionally.
7. Mr Chamberlain confirmed that the telephone call at 9.02 am on 29 June disclosed in the records of outgoing calls from Mr Dalton's phone was made to his office number at Avalon. Prior to the telephone records being obtained, Mr Dalton had not referred to this telephone call at any stage during the investigation. Mr Dalton's evidence at the hearing was that he had told Mr Chamberlain on 29 June 2009 that it was he, Barry Dalton, who was speaking. His evidence was that he said he was ringing Mr Chamberlain at G's request because she was anxious and tense. She had called him in tears saying she didn't want to go to Avalon. He denied that he had referred to himself as 'Alan', a neighbour of G's.
8. We accept Mr Chamberlain's version of these events, and we reject Mr Dalton's. We reject Mr Dalton's further suggestion that his call was picked up by a different person at Avalon, who must have transferred it on to Mr Chamberlain, without conveying to him that the caller had said his name was Barry Dalton. We prefer Mr Chamberlain's account, which was clear. Mr Chamberlain was an impressive witness, and has no motive to be other than truthful. His account is supported by contemporaneous notes.[23] On the other hand, we have found numerous instances where Mr Dalton has provided misleading or untrue information.

1. Ms Laura Vecchio was G's replacement support worker from the Avalon Outreach Program from 17 July 2009, when Mr Chamberlain went on extended leave. She gave evidence about G's personality and circumstances which was consistent with Mr Chamberlain. In addition, she said G was not assertive. She had trouble saying no to people. Ms Vecchio believed that prior to 2009 G had never had a sexual relationship.
2. She made Progress Notes which included references to a number of contacts or involvements G had with men over the period 1 July 2009 to 27 April 2010.
3. She is still involved in supporting G. She discussed with G the possibility of G giving evidence in this case. G had told her that would be very difficult. Ms Vecchio said she believed that would be detrimental to her mental health. She said G now has a new address and a new phone number.
4. In cross-examination, Ms Vecchio said that although auditory hallucinations were part of her diagnosis,[24] she believed that G's statement that she had a sexual relationship with Mr Dalton was truthful.
5. She visited G in her flat three or four times between July 2009 and February 2010. Ms Vecchio went inside the flat on those occasions. She saw nothing in the way of gifts, or any other evidence of a relationship between G and any man.

1. Eric Smith is the owner and manager of SwingShift Nurses. He gave evidence that on 5 September 2008 Mr Dalton registered with SwingShift as a psychiatric nurse.
2. He said that Mr Dalton informed SwingShift that his home address in Melbourne was in Ivanhoe. It was a bungalow at the back of the house owned by the SwingShift recruitment manager.
3. Mr Smith said that on 9 March 2010 he received a telephone call from NWMH Director of Nursing, Mr Brian Jackson, advising him of G's claim of a sexual relationship with Mr Dalton. He also received a copy of the incident report which had been prepared by Ms Coppins. Mr Smith said he had a meeting that day with Mr Jackson at Mr Jackson's office. Also on that day, Mr Smith telephoned Mr Dalton and informed him he had received a serious allegation from a female patient. He said that without prompting Mr Dalton immediately referred to Patient G by name. The Board regarded this as suspicious, however, this seems to us to be explicable by the fact that Constable Bickerstaff had already advised Mr Dalton that this allegation had been made by G.
4. In his witness statement Mr Smith said that Mr Dalton told him that he had considered that G may be suitable for a counselling group that he was conducting and that he gave her a business card. In his witness statement, Mr Smith said:

He told me that he had a telephone conversation with G and that he met her in a café. He did not state when this took place. He stated that at this point he decided she was unsuitable for his counselling group and that he left and never saw her again.[25]

1. In response to Mr Smith's request, Mr Dalton provided a typed statement about G's allegation, under cover of a letter dated 18 March 2010.[26]
2. Mr Smith's statement went on:

[24] Mr Dalton gave me two different explanations for why he had had further contact with G after he had administered her depot injection. The explanation he verbally gave me during our telephone conversation on 9 March 2010 [with] [G] was that it was for the purpose of assessing her suitability for his counselling group. However, his typed statement states that [G] contacted him on a number of occasions and does not refer to the counselling group or to the provision of his business card.

[25] I had a telephone conversation with Mr Dalton sometime after this. I cannot recall the specific date. I pointed out the fact that his typed explanation for ongoing contact with G was different from the one he had given me by telephone.

[26] Mr Dalton says in his typed statement that 'after seeing this patient I noticed that my identity with a photograph was missing. I then contacted Swing shift [sic] Nurses soon after to get a replacement'.

[27] I caused enquiries to be made by SwingShift staff members regarding Mr Dalton's claim that he contacted SwingShift to get a replacement identity tag. I am informed by Swingshift staff members and believe that SwingShift has no record of Mr Dalton requesting or being provided with a replacement SwingShift name badge.

[28] Mr Dalton says in his typed statement that "I notified yet again, without success, the clinic at Coburg that this woman was pestering me and I was fed up with her fixation with me". Further, he states: "Yet again, I left a note for the Clinic to ring me or to deal with the issues this woman was experiencing".

[29] I made enquiries of NWMH as to whether Mr Dalton had made any notification of the kind claimed in his typed statement. I am informed by NWMH and believe that they have no record of Mr Dalton ringing the clinic at Coburg regarding [G] or of him "leaving a note" about [G].

1. In his oral evidence, Mr Smith said that he had taken some scribbled notes of his conversation on 9 March 2010 with Mr Dalton, and he had referred to these when he made his report to the Board on 9 April 2010. He said he had subsequently discarded the notes he had made at the time of the telephone conversation with Mr Dalton on 9 March 2010 because he felt he had captured all the information from his notes in his report to the Board.[27]
2. Again, Mr Dalton contested this evidence. He said Mr Smith got it wrong when he stated that Mr Dalton had told him he had met G in a café.[28]
3. Once again, we reject Mr Dalton's evidence in relation to his conversation with Mr Smith on 9 March 2009. That is, we accept that Mr Dalton told Mr Smith he met G in a café, in order to consider whether she was a suitable candidate to join his proposed counselling group. We accept Mr Smith's version. Although there is no contemporaneous note, we formed the view the Mr Smith was a reliable and honest witness. For the reasons set out in detail below, on the other hand, we found Mr Dalton to be a less credible witness.

1. The first two occasions when Mr Dalton made any statements about his involvement with Patient G were his conversations with Constable Bickerstaff on or soon after 16 February 2010, and his conversation with Eric Smith on 9 March 2010. These are detailed above.
2. The next occasion when Mr Dalton made any statement about his involvement with Patient G was in the written statement of 18 March 2010 which he provided to Mr Smith. Amongst other things, this statement indicated the following: At the NWMH Coburg Clinic on 31 March 2009, Patient G had asked him a lot of personal questions. She had started to call him on his mobile phone in May or June 2009 (the implication being she had obtained his number from stealing his glasses case, which had his mobile number in it- on 31 March 2009). In the first call he said G said she remembered him from the Clinic two months earlier, and would like to meet him. He said she told him a lot of things about herself, and her problems with her housing, neighbours, and that people were trying to rape her. Mr Dalton asked her to go to the clinic and report this to a member of staff there. Then in June or July 2009, he had received a letter left on the window of his flat in Ivanhoe. He assumed it had come from her. The letter had no name or address, and it was not produced to the Tribunal. G continued calling Mr Dalton over the next few months. He responded by asking her not to intimidate him on a regular basis. In the second half of 2009, Mr Dalton 'notified yet again, without success, the clinic at Coburg, that this woman was pestering me and I was fed up with her fixation with me'. At Christmas 2009, she offered him presents. Later, she told him she was associated with a neighbour who was a prostitute, and that G herself had been seeing a number of men sexually. G offered Mr Dalton sex for money. G was a practising prostitute. She made some sort of implied threat against him, apparently looking for money. At all times, Mr Dalton had advised her to seek professional help for her issues. He had 'on numerous occasions' left messages for the treating team at the Coburg Clinic to deal with G's issues. In retrospect, Mr Dalton should not have 'talked to her on the telephone and helped her through some of the issues that she was facing. She was very deluded, psychotic, often occasionally suicidal and very disturbed.'[29]
3. The final occasion prior to the hearing when Mr Dalton made a statement about his involvement with Patient G was in his written statement of 6 July 2011, through his then lawyers, Ryan Carlisle Thomas. This statement referred to his 9 March 2009 statement, and then went on:

I also received a number of phone calls from an unknown person on my mobile phone. I also received a letter on a window on my flat which was unusual in June or July 2009. There was not any name or address on this letter. Thee were various articles left at my home in Ivanhoe which I suspect were to do with this woman.

G had often called my mobile and left her number on my mobile phone and asked me to call her. I did return her calls but advised her to seek psychiatric help. I informed her that I could not speak to her. During my telephone discussions, I did not at any time seek to commence any relationship with G but rather urged her to seek professional help. I am unsure how G obtained my telephone number except that she may have obtained possession of my spectacle case which had in it my name, address and mobile telephone number. I had lost my spectacle case during a shift at Maroondah Hospital.

I regret not raising this with either the Agency with which I was engaged or Melbourne Health at the time. I believed G would seek professional help after I returned her calls.

I was first asked to comment on this issue by Swing Shift Nurses Agency (Eric Smith). Mr Smith stated that a complaint had been received against me by a particular patient relating to sexual misconduct. Mr Smith did not elaborate or provide me with any details regarding this matter. When he raised this issue, I stated to Mr Smith that I thought it is in relation to '[G]' as she had been the person who had been calling me. It appears that Mr Smith interpreted my response as some form of admission of the fact that I commenced a sexual relationship with G. I am unsure how it is alleged that my written response was any different to what I had in fact communicated to Mr Smith of Swing Shift Nursing Agency. In any even, I ask AHPRA to accept my written response and not Mr Smith's account of what I had allegedly said in my discussions with Mr Smith as stated in his letter dated 9 April 2010. I also deny that at any stage I have met G in a café as alleged.

On 31 March 2009, it is alleged that I acted inappropriately by attending at the home address of patient G and subsequently commenced a relationship with her.

I completely deny this allegation. This allegation is referred to in an incident report completed by Tara Coppins, psychologist on 26 February 2010. Ms Coppins reports that I attended G's residence on 31 March 2009 requesting to have sexual relations with her. G has reported that she declined this at the time and I returned to the house the next day. It is stated that I have been engaging in a sexual relationship with G and that I asked G not to inform other staff of the relationship as I would get into trouble. The incident report does on to state that G has been concerned that I will try to kill her so she stays up late at night walking around the lounge room. IT is alleged that G bought a knight to her house because she was concerned about her personal safety. It is alleged that I also made phone calls to her in the early hours of the morning. It is also alleged that G attended Brunswick Police Station and reported the matter.

I have to state that I reject complete this allegation. I have not attended the home address of patient G. Furthermore, the details of the incident reports were not raised with me until I received a copy of this incident report from the Nurses Board of Victoria. I am distressed about this serious allegation as it is completely false.

My registration as a nurse has been suspended since 15 April 2010. I have been unable to work as a registered nurse since this time.

I ask the Board to dismiss the allegations against me for lack of substance. Consequently, I also ask the Board to lift the suspension for my registration and allow me to practise as a nurse. I continue to suffer financially as a result of suspension on my registration. I have a dependant wife and children and to make ends meet, I have taken up work as a personal carer.

I look forward to a conclusion in the Board's investigation as soon as possible.

1. We find that there are many inadequacies, inconsistencies and implausible aspects of Mr Dalton's case. The major shortcomings, which reflect adversely on his credibility are dealt with in the following section of our decision.
2. Mr Dalton also sought to supplement his evidence by way of further statements made in written submissions filed after the hearing. We have generally discounted such additional evidence as it was not presented as part of the hearing, and there was no opportunity to test it by way of cross-examination. In any event, it did not add a great deal to the case put at the hearing.
3. The evidence and submissions given by and on behalf of Mr Dalton included reference to a number of matters which we regard as of little or no significance to the determination of the issues in this case. We give three examples:
   1. Mr Dalton referred to the difference between self-help and counselling groups. This distinction is not important in this case. What is significant is that Mr Smith's evidence was that Mr Dalton told him initially that he had met G in a café to consider her potential involvement in some kind of group, but later denied having done so.
   2. Similarly, we regard as irrelevant, Mr Dalton's submissions about how his other employer ('PCC') found out about the allegations against him.
   3. Thirdly, Mr Dalton drew attention to the alleged forensic inconsistencies between different versions of G's stories that he was trying to kill her with a knife. We do not believe we need to consider the issue of whether or not G was justified in believing Mr Dalton was trying to kill her with a knife as part of our analysis of the charges against Mr Dalton. These charges do not allege that he threatened to do so, rather they allege an inappropriate personal and sexual relationship with G.

1. The Board pointed to certain statements by Mr Dalton which suggested he barely knew who G was. It contended these were designed to put the investigators off the scent, especially at an early stage. In his 18 March 2010 statement, he said

During the three days of placement at this clinic [the Coburg clinic] I was asked to give an injection to a woman, I cannot remember her surname or even her christian name at the time. Subsequently I found out it was [G] (I think?)

1. We find this statement was misleading and false, in light of the fact that the telephone records subsequently obtained indicate that Mr Dalton called G on 1 April 2009, and frequently thereafter. Yet his 18 March 2010 statement gave no indication that he made any calls to her, let alone hundreds of calls. And it made minimal reference to his counselling role. Although that statement does contain a reference to 'numerous' conversations he had with G, and helping her through some of the issues she was facing, the overall impression given by the statement is that he generally tried to brush off or rebut her telephone approaches to him, and to tell her to get professional help. Clearly, he did know who she was, and he had significant involvement with her. His initial response above undermines his credibility.

Mr Dalton's change of story as to how the telephone communication began

1. The production of the telephone records in December 2011 forced Mr Dalton to abandon his story that G had initiated contact with him in May or June 2009, [30] and to accept that it commenced immediately after the day after he administered the depot injection to her- on 31 March 2009. His story then became that he had in fact telephoned G on 31 March 2009, after seeing her at the clinic, when he was leaving that day, on his mobile phone. This must be wrong, however, as the phone records show that the first call he ever made to her was on 1 April 2009, at 8.24am. (This was followed by another call to her at 8.32am.) In any event, he then said that he commenced, in effect, to provide telephone counselling to her as a 'Samaritan'. The veracity of the 'Samaritan' explanation is dealt with below.

1. Mr Dalton's story that he believed G had taken his glasses, glasses case and identity badge on 31 March 2009 is implausible for a number of reasons: There is no apparent reason for G to steal these items, other than that she had determined to obtain his contact details. This seems highly unlikely. It would be unlikely that he would write up the medication notes without his glasses.[31] Whilst it is not good practice for a psychiatric nurse to draw up an injection without his glasses, and therefore one would assume this would not occur very often. We do note however that Mr Dalton said he didn't need his glasses because he 'had checked it all before she came in'.[32] It seems unlikely too that an experienced psychiatric nurse would leave his glasses and glasses case (containing personal details) and identity card on the desk with a psychiatric patient and then leave the room. Further, Mr Dalton did not report the theft of his glasses to the clinic and ask them to chase this up, rather, said he took the matter into his own hands by ringing the patient directly. That course seems potentially fraught with difficulty.
2. The Board raised several further aspects of the evidence, which we do not place weight upon, for the following reasons.
3. First, it was said Mr Dalton changed his story: initially he only stated that he had lost his identity tag and his glasses case. In our view, his references to the loss of his glasses case could be interpreted as including his glasses.
4. Second, in his statement of 6 July 2011, Mr Dalton referred to having lost his spectacle case 'at Maroondah Hospital'. This was apparently given as an explanation as to how his phone number might have come into G's possession. Yet there was no suggestion she was ever at Maroondah Hospital. Mr Dalton said he only ever met her once- when he administered the depot injection to her at NWMH, in Bell St Coburg. The Board suggested this inconsistency undermined his story. In our view, however, the most likely explanation is that the reference to Maroondah Hospital was simply a mistake, given that it was made after the earlier statements about the spectacle case having gone missing from the Coburg clinic (and even though Mr Dalton made another reference to Maroondah Hospital in cross examination[33] ─ again, in context, we conclude that was the result of confusion).

1. On Mr Dalton's version of events, he received two replacement identity cards ─ one being to replace the tag he said G had taken. It was said the relevant person at SwingShift could not recall issuing one replacement identity card, let alone two. However, Mr Dalton tendered two identity cards which were different in format. This suggests they were issued at different times. We find the evidence about identity cards inconclusive.

1. Mr Dalton's written statements say that G was paranoid schizophrenic, psychotic, delusional and a prostitute. These came across as defensive mechanisms, to seek to discredit G, with insufficient recognition of her vulnerable position. Mr Dalton's assessment of G's personality, mental health condition and activities is at odds with all the other witnesses. His suggestion that she is sexually promiscuous and a practising prostitute, together with his statement that she gets out and about, buys her own clothes, meets friends and goes to cafes was at odds with the evidence of her treating team. He was even quite scathing of her treating team in giving his evidence, seeming to suggest G had pulled the wool over their eyes, and she was not as naïve as they believed. There are two concerning aspects to this. First, this appears to be an attempt to discredit her, and even to suggest that if she did have a sexual relationship with him, it would not be based on such a power imbalance as the Board suggested. Second, it was given in a manner which suggests quite an intimate knowledge of G. Whilst this could have arisen from the numerous phone calls with her over the period April 2009 to February 2010, it would also be consistent with a closer connection than just a 'telephone' relationship.

1. In relation to G's sexual activities, the Board's case was that G had lived a sheltered life, and had not been sexually active until she met Mr Dalton. Ms Ellyard suggested to Mr Dalton in cross examination that he was her first sexual partner. The NWMH and Avalon Progress Notes do contain references to sexual activity with men during 2009, perhaps for the first time in her life. Two or three of the 'men' referred to appear to be clearly distinguishable from Mr Dalton, due to their age, or some other differentiating characteristic. Of course, if G did have sexual involvement with other men on some occasions, that does not comprise evidence that she did not have a sexual involvement with Mr Dalton on other occasions. Accepting that some references in the Progress Notes to men able to be distinguished from Mr Dalton that still leaves the possibility that the remaining references to a 'man' were references to Mr Dalton. This is exactly what the Board contended. Ms Coppins[34] and Ms Vecchio[35] both gave evidence that in hindsight, some of the references G made to a 'man' made sense as references to Mr Dalton.[36]
2. During his oral evidence, the number of men which Mr Dalton alleged G had seen, or was seeing, ranged from four[37] to five[38] to six[39] to eight[40] to nine[41] men. This demonstrated his cavalier attitude towards G in terms of the making of assertions about her character and conduct, and belies his position as a caring professional concerned about the welfare of a vulnerable person. There is nothing in the evidence apart from Mr Dalton's assertion, to suggest that G was a 'practising prostitute'. He produced no evidence to support this assertion. Indeed, in his submissions, Mr Dalton said it would have been impossible to produce evidence that G was a prostitute. He only pointed to various passages in the Progress Notes, which we find do not support that assertion. And as described above, all the other evidence is to the contrary.

1. Mr Dalton stated that G made telephone calls to him from a public phone box. Thus, he said, the implication from the telephone records that he made far more calls to her than she made to him, was not correct. He said the reason G did this was that she thought her home phone was bugged. This seems implausible, however. He could not answer as to how it would have been logistically possible for G to go out and make calls from a phone box, and then come back in and receive further calls from him. Nor why, if she was concerned her conversations were being bugged, Mr Dalton rang her at home on so many occasions. Nor why she frequently did use her landline to make calls.[42] Further, it seems improbable that a person in G's mental state would leave her flat alone, often at night, to speak to him on a public phone.

Reports Mr Dalton said he made to Patient G's treating team

1. Mr Dalton gave conflicting accounts about whether, and how often, he had notified the treating team at the Coburg clinic of the need to deal with the issues which G was 'pestering' him about. In his statement of 18 March 2010, Mr Dalton said he had left messages on 'numerous occasions' for the treating team at the Coburg clinic to deal with G's issues. In his statement of 6 July 2011, he appeared to be referring to these issues when he said that he regretted 'not raising this with either the Agency with which I was engaged, or Melbourne Health at the time'. In his evidence in chief, he said he had done this twice. However, it turned out that the second occasion was after he had been advised that G had gone to the police, so this was reduced to one. He was not able to particularise that single occasion. The evidence of Mr Smith was that following a search by NWMH in response to his request, no notes of any such messages could be found at NWMH. We accept that if such a report had been made, it would have been treated as a serious matter, and would have been unlikely to have been lost. The fact that Mr Dalton gave these different versions undermines his story. Further, it seems to us that Mr Dalton's version that not only did he leave one or more messages (of which no record can be found) but also, that they were not followed up, is inherently unlikely.

The call to the Agency on 31 May 2009 from G's phone

1. Mr Dalton was not able to provide any explanation for the fact that a call was made to SwingShift Nursing Agency from G's landline at 6.32 pm on 31 May 2009. In cross examination, his response to the fact that G's telephone records showed that call made to SwingShift was that it could have been G herself ringing, about another person who was working there, or to seek more care herself, and also that there was no proof it was Mr Dalton who rang.[43] We reject the suggestion that G would have rung SwingShift. There was no reason for her to do so. It is an agency which provides staff to health care providers in the public and private sector. An extremely strong inference arises that he was present, and that he made that call. That conclusion undermines Mr Dalton's story that he never went to G's home.

The telephone call on 29 June 2009 in the guise of 'Alan'

1. We have found that Mr Dalton called Mr Chamberlain in the guise of 'Alan', a neighbour on 29 June 2009. So his credibility in relation to this is undermined. First, he did not mention that he had made this call until he was in effect forced to give an explanation, once the phone records were obtained. Second, when he was forced to acknowledge that he made this call, his story became that he gave his correct identity. We have found that he did not do this, rather, he called in the guise of 'Alan'. Third, his purporting to be 'Alan' suggests a sinister intent. The Board suggested the inference arises that he wanted Avalon out of the picture because it could interfere with his sexual relationship with G, and/or make it more likely it would be discovered.

Suggested invasions of Mr Dalton's domestic privacy

1. Mr Dalton's statement of 18 March 2010 said that around June or July 2009 he received an anonymous letter on the window of his flat. In his oral evidence he said he found a fish bone left at his flat.[44] He concluded these were put there by G. Accepting as we do the evidence of G's treatment team members that she would not have been capable, physically or psychologically, of making her way to Ivanhoe from her home on her own, this seems unlikely. Mr Dalton suggested she could have been taken to his house by one of her 'man' friends. This seems highly unlikely.

Mr Dalton's conversations with Mr Smith and Constable Bickerstaff

1. Given that we accept Mr Smith's evidence of what occurred in his phone conversation with Mr Dalton on 9 March 2010, we find there is an inconsistency between Mr Dalton's version on that day (that he met G in a café, in order to consider whether she was a suitable candidate to join his proposed counselling group) and his subsequent written statement and oral evidence at the hearing.
2. Again, for the reasons stated above, we prefer Constable Bickerstaff's version of their telephone conversation on 16 February 2010 to Mr Dalton's.

MR DALTON'S UNDERSTANDING OF HIS ETHICAL RESPONSIBILITIES IN RELATION TO OFF DUTY CONDUCT

1. Mr Dalton agreed that he is obliged to comply with the Australian Nursing and Midwifery Councils Code of Professional Conduct for Nurses in Australia and he agreed that a power differential that exists between a nurse and a patient. He agreed that there is a burden of responsibility on nurses not to breach that trust but stated, 'when you're working that Code applies... it doesn't apply...when I walk outside the door'[45] Many times during his evidence and submissions, Mr Dalton expressed the view that his professional responsibilities finish the moment he leaves the hospital (or other place of work) each day. He is free to conduct his own separate personal life.
2. That is true to a point, but the fact is that a psychiatric nurse who has dealings with a patient outside the context of his employment as such has a more onerous ethical responsibility than an ordinary member of the community who is not a health professional. This is because his or her status as a health professional will be something the patient is conscious of when dealing with that professional, regardless of whether they are on duty or not. So there is a power imbalance between the professional and the mental health patient. Mr Dalton's submissions in support of his conduct reflect a lack of understanding of this. On the other hand, his admission that, in effect, he went too far in his 'Samaritan' role, demonstrates some understanding. Mr Dalton relied to some extent on the goodwill he indicated was associated with the concept of a 'Samaritan' in the UK. But when put to him that the Samaritans is a UK based organisation and there is no formal structure similar to the one in the UK in Australia, he stated he had made no enquiries.[46] The Board says his 'Samaritan' story is an invention to try to cover for what was in fact a sexual relationship. Putting that to one side, however, it is clearly dangerous (both for the welfare of the patient, and for the reputation of the professional) for a nurse to become heavily involved in the day to day life of a mental health patient, outside the professional setting and independent of her treating team's plan for her management. A psychiatric nurse is not prevented from carrying out voluntary extra-professional activities, such as staffing a crisis telephone line which provides counselling on an anonymous basis (if they have the energy) but that is different to providing a counselling service exclusively and intensively to one person over ten and a half months, where that person has initially come into contact with the nurse in the course of their professional work.
3. It is clear Mr Dalton had extensive involvement with G. He said that in his very frequent telephone conversations with her, he gave her 'little tasks' to do, to help her get through her day. For example, if she was scared of people breaking in, to go and check that her security door was locked. Then he would follow these up a few minutes later. In his evidence, he said:

I gave her general guidance of how to check these things out: "If a bomb's there, it would be outside the front door, go and have a look outside the front door." I'd then ring back in about six or seven minutes saying, "Have you checked the front door, is the bomb there?" "No." "Have you heard anyone banging at the door? Go and check it out. Are there any marks on the door?" and I gave her little tasks to do, and then I came back to her and said, "Have you done that, is that so?" and I actually was continually trying to help her make some - make some decisions about how she could do the checking herself, and - and it wouldn't be very long to say she says she's got a bomb outside, go and check if the bomb's there, yes and no, and I'll ring you back in five minutes. That's about 10 seconds. I then ring her back, "Did you find a bomb?" "No." So she would then - then I would say, "There isn't a bomb there." "There are people talking downstairs about me." "Okay, why don't you just pop down there and see if in fact there's anyone down there and I'll ring you back in five minutes, 10 minutes." This is her doing the work, not me. She then goes outside, she then goes and sees if anyone was there talking about her. I then ring her back in 10 minutes and say, "Did you find anybody there?" "Oh no, I didn't, no, that's wrong, I didn't."[47]

Mr Dalton said G relied on him 'a lot'[48] We have referred to this as 'counselling' given by Mr Dalton to G.[49]

1. Mr Dalton ultimately admitted in the hearing that he carried out his 'Samaritan' role, for too long. He agreed he should have referred her to the treating team. He said she came to rely on him 'a lot'.[50] We conclude that he clearly became too involved in his counselling of G, and in effect, cut across her treating team. This constitutes a breach of his duty not to act contrary to the interests of a mental health patient. This duty is axiomatic, and articulated in Standard 1.2 of the Australian Nursing and Midwifery Council's National Competency Standards for the Registered Nurse referred to in the Particulars to Charges 3 and 4. It is also contrary to Standard 7, which is set out in Particular 1 to Charge 7, being the duty to

Provide comprehensive, safe and effective evidence - based nursing care to achieve identified individual/group health outcomes.

1. It is clear that Mr Dalton had much more frequent contact with G than her treating team, and yet he never sought to harmonise his counselling with her treatment plan, or to liaise in any way with her treating team. In fact, he took steps to try to sever her link with the Avalon carers. His knowledge generally about the mental health treatment regime operated by NWMH, which he gained simply by working within it, and from his experience as a psychiatric nurse of many years' standing, should have told him that the extent of involvement he ultimately admitted to having with G was well in excess of what should have occurred without informing and involving her treatment team.
2. Also, Mr Dalton's statement that he spoke to G in September 2010 ─ after she had made the allegations against him to the Board and the Police ─ raises further concerns about his lack of understanding of professional boundaries. This matter is further dealt with below.

1. The most serious allegation against Mr Dalton is charge 3 ─ that he had a 10 month sexual relationship with Patient G. Mr Dalton strongly denied this. In these circumstances, it is necessary for us to find a solid and cogent basis on the evidence for any conclusion that there was such a sexual relationship.

1. The Board points to the numerous inconsistencies and misleading and deceptive statements and conduct by Mr Dalton and says his word cannot be accepted. It says his 'Samaritan' story is a lie- that it is a cover for a sexual relationship with a vulnerable person with a mental illness. We have found that in virtually all significant areas where Mr Dalton's evidence differs from the evidence given by others, the latter is to be preferred. The Board says this, together with the numerous other unsatisfactory aspects of his evidence, creates a sufficiently strong basis for us to conclude that statements made by Patient G to Constable Bickerstaff, her treating team and Mr Munro that a sexual relationship did occur, should be preferred over Mr Dalton's denials.
2. It is clear from the sequence of events described above that Mr Dalton has very little credibility. He has made many misleading statements. He left important details out of the initial version of events he gave. The obtaining of the telephone records was obviously the major factor which demonstrated he had not been telling the truth, or the whole truth, and caused him to have to change his story.
3. However, even though we have found Mr Dalton has very little credibility, we still need to be satisfied that there is sufficient evidence for us to conclude, on the Briginshaw standard, that he engaged in a sexual relationship with Patient G.

1. There are a number of factors which we must consider carefully before we could be satisfied, to the requisite degree, that there was a sexual relationship. There is no direct evidence of the very numerous direct contacts between Mr Dalton and G alleged. The Board's case is circumstantial. There was no evidence led of anyone seeing Mr Dalton entering or leaving, or being in G's flat, despite the fact that it is alleged he had sex with her on over 100 occasions over a period of more than 10 months. There was no evidence from the downstairs neighbour G said in her interview with Mr Munro that Mr Dalton had fetched when he could not get her to answer at the door of her flat when he attended on the evening of 31 March 2009.
2. This seems surprising. Similarly, there was no evidence to corroborate G's statement that Mr Dalton drove a 'small white car' with Adelaide numberplates.[51] Mr Dalton's evidence that he drove a green Ford Territory[52] was not able to be responded to by the applicant.
3. Nor was there any direct evidence of G's attendance at Mr Dalton's bungalow (although G did say this only occurred on two occasions). And there was no evidence from his landlady in Ivanhoe, for example, about the absences of Mr Dalton, or his car, from the bungalow, which must have been significant, given the extent of the relationship alleged between Mr Dalton and Patient G. Nor was there any evidence to corroborate the details G gave about the bungalow. The lack of other evidence which it seems to us might have been able to be obtained, such as G's phone records for the missing months of April, July and November 2009 and February 2010, and even the non-production of the coffee mug which G said Mr Dalton left at her flat, are further gaps in the evidence.
4. On the other hand, there is the strong circumstantial evidence of the telephone call from G's home phone to Mr Dalton's nursing agency, SwingShift, at 6.32pm on 31 May 2009. We are satisfied that Mr Dalton was at G's home on that day.
5. Secondly, we have found that on 29 June 2009, Mr Dalton rang Mr Chamberlain in the guise of 'Alan' seeking to end G's involvement with the Avalon support group. We accept that Avalon was a very positive aspect of G's life.
6. These pieces of evidence, in particular, raise the question why Mr Dalton was at G's house on that occasion, and why he sought to undermine Avalon. In his evidence Mr Dalton said he rang Mr Chamberlain at G's request because she didn't want to go to Avalon. She was afraid and upset ─ in tears. Mr Dalton said he tried to persuade her to go to the appointment on 29 June 2009, but she said no, she didn't want to.[53]
7. As stated, we have found Mr Dalton's evidence in relation to the call misleading and untruthful. First, Mr Dalton did not disclose that he had made the call until the obtaining of the telephone records forced him to. Second, we accept Mr Chamberlain's evidence that Mr Dalton called in the guise of 'Alan', not as Mr Dalton himself. This certainly lends support to the Board's case that an inference should be drawn that Mr Dalton was seeking to take Avalon out of G's life, in order to prevent detection or termination of his relationship with G. And his motivation would be greater where that relationship was a sexual one.

1. However, we also have some hesitation in accepting G's 'evidence' for a number of reasons. The unreliability of G's 'evidence' was a key factor relied upon by Mr Dalton. He said that G was paranoid, schizophrenic and delusional. She had a fixation with him. Her evidence on such a vital question as whether there was a sexual relationship, could not be relied upon.
2. We do accept the conclusions of Mr Bickerstaff and G's treating team that G's statements to them that she had a sexual relationship with Mr Dalton, were made honestly. However, the Progress Notes do clearly indicate that G was suffering from delusions to some extent.
3. The Progress Notes record G's ongoing concerns about her personal security in her flat. For example, at one point it was recorded that G stated that for the last two weeks she has heard unknown people outside her window, knocking on her door late at night and sneaking around the property. Later, the Progress Notes record that G expressed ongoing concerns about criminals calling her and jumping over the fence at night. And after that, G expressed concern that they would break in and kill her, and that she was convinced that she heard men discussing putting a bomb in the flats so they can break in. The implication is that these fears were unfounded: the Progress Notes said 'these delusions had been relatively fixed and unable to be challenged by reality testing'. She also expressed fears of being poisoned (in the context of visiting her father in a nursing home and having a meal with him) and of being in danger of being attacked by Mr Dalton with a knife. At times, in association with her 'excessive fear' G was unable to sleep, had a poor appetite, and suffered other effects.
4. Also, as a result of G's condition the overall story of what was happening in G's life which is conveyed by the Progress Notes is far from being a clear or coherent one.
5. These are not reasons for rejecting G's evidence outright. But they do cause us to treat it with caution.
6. In this regard, we also note the absence of any psychiatric evidence brought by the Board about the reliability of G's statements. The technical evidence about this which was provided as part of the Board's case went no higher than Ms Coppins' statement that G had been diagnosed with schizophrenia by the treating psychiatrists. She also said her observation was that G was exhibiting signs of chronic, but not acute, hallucinations during the period when she made the report about Mr Dalton on 16 February 2010. That is, Ms Coppins agreed, the hallucinations were always there in the background, given G's condition, but they were not acute at that time.[54] Mr Dalton said the depot injection he gave G was for schizophrenia, not paranoid schizophrenia. But he said she was suffering from paranoid delusions, and that made her a paranoid schizophrenic. [55] We accept Ms Coppins' statement that it was not appropriate for her to purport to give a diagnosis of G's condition, that is a matter for the psychiatrists. For similar reasons, we place little store on Mr Dalton's statements, to the extent they purport to comprise a diagnosis, or an expert opinion on her state of mind.
7. The upshot is that although the Board urged us to accept G's version of events in preference to Mr Dalton's, we are left with little basis on which to judge its reliability, and, indeed, little evidence which would allay our concerns as to its reliability.
8. Whilst we understand the reasons for this in terms of the need to protect G's welfare and mental health, this does contribute uncertainty to the equation.

1. There were also several aspects of Mr Dalton's evidence which apparently run contrary to his own strategic interests in conducting his defence. For example, Mr Dalton stated that he had called G on 31 March 2009. This is false. The phone records show that his first call to her was at 8.24 am on 1 April 2009.[56] This is an example of a false statement in Mr Dalton's evidence which would appear to be unnecessary in order to back up his version of events. It did not have to be made. In our view, this particular false statement is more likely to be the result of confusion or poor recollection on Mr Dalton's part, rather than something which contributes to the conclusion that he had sought to concoct a version of events which covers up a sexual relationship with G.
   1. Also, at the end of his evidence in chief, Mr Dalton volunteered the fact that he had spoken to G in August or September 2010, that is, after she had complained to the police, and the investigation by the former Board was well underway. He said this was after G had come out of hospital due to an episode of mental illness.[57] He said she had rung him, and he had not refused to talk to her, because he was a Samaritan of 15 years' experience, and you do not abandon people who are in need.
   2. This statement was made after the Board's case had closed, and in any event, there was no indication the Board had asked G, or obtained any information, about whether this occurred or not.
   3. It is difficult to know what to make of this. It obviously opens Mr Dalton up to suggestions that he could be seeking to influence the informant who has made serious allegations against him. His volunteering this in his own evidence, when it appears it would not otherwise have come out, could alternatively be interpreted as the naïve action of a man who does not understand the inappropriateness of having further contact with G, which is not inconsistent with his 'Samaritan' story. In any event, we have no basis on which to conclude that Mr Dalton has influenced G in relation to the preparation or conduct of this case.
   4. In the witness box Mr Dalton appeared agitated and dogmatic, and focussed on his own version of events. He frequently stood up, and sat down again (causing constant difficulties with the microphone). In the box and in the hearing he was stooped and shuffling, occasionally confused or unable to find particular words. He apparently remained convinced that his version of events was accurate, even when it was undermined by, for example, the telephone records.

1. Overall, we have concluded that there is simply not enough concrete evidence on which we can conclude with a sufficient level of satisfaction that Mr Dalton had a sexual relationship with G. We can certainly understand the inferences which the Board says should be drawn from all the circumstances described above, including especially the failure to disclose the extent of the relationship as demonstrated once the telephone records were obtained, the call in the guise of 'Alan', and the call to SwingShift on 29 May 2009. We do not have any reason at all to conclude that G's statements were made dishonestly. And we have found that Mr Dalton was not a credible witness. There are a number of aspects of the circumstantial case brought by the Board which are strong.
2. Yet on the evidence overall, we are left with an insufficient level of certainty, in the light of the extremely serious nature of this allegation. The Board has not satisfied us on the Briginshaw standard that there was a sexual relationship. Patient G did not give evidence at the hearing. No sworn statement by Patient G was given. In fact, no statement by Patient G was given at all. Instead, we have a summary of an interview with G by the Board's investigator (together with all the other oral and written evidence, including the hearsay evidence of G in the Progress Notes). In opening, Ms Ellyard said that G would not be giving evidence in the proceeding. She said G's mental state was fragile, and that at all relevant times, she has had a diagnosis of schizophrenia and receives depot injections and anti-psychotic medication. In her evidence, Ms Vecchio was asked whether she had discussed with G the possibility of her coming to give evidence at the hearing. Ms Vecchio said:

she'd find that extremely difficult and I believe, from my knowledge of her, that that would be very detrimental for her mental health.[58]

1. We were very impressed with the dedication and professionalism with which the two Avalon workers, Mr Chamberlain and Ms Vecchio, appeared to carry out their role in promoting G's welfare and progress. The same applies to Me Coppins. However, we note Mr Chamberlain and Ms Vecchio are not technically a part of G's health treating team. Rather they are community support workers. We received no expert evidence from G's treating team or otherwise as to Patient G's capacity to make a sworn statement. Nor as to the extent to which we could accept what G had said to others, in the absence of a sworn statement.
2. We heard no evidence which could reassure us that the aspects of G's mental functioning which have clearly given rise to profound mental illness and difficulties in carrying out her daily life can be put in a separate 'category' to her reports of a sexual relationship with Mr Dalton. We note that the thing which precipitated her attendance at the Brunswick Police Station was her fears that Mr Dalton might try to kill her with a knife. It seems to us that without any further evidence we cannot confidently put the statements G made about Mr Dalton in a different 'category' to the delusions reportedly experienced by G in 2009 - 2010 referred to above. We do not have any basis on which we can entirely discount the suggestion by Mr Dalton that G's statements that she had a sexual relationship with him, and that he attended her flat on numerous occasions, or that if he did, there was a sexual relationship, were the result of a delusion. And of course, we did not hear from G herself, so we are reliant on hearsay. G was not available to be cross-examined, so her version of events could not be tested. All the evidence from her is in the form of reports by others of statements G made to them.
3. Whilst we are sceptical about Mr Dalton's 'Samaritan' story, we acknowledge it does to some extent tally with the facts. Although a number of aspects of the pattern of telephone calls run contrary to Mr Dalton's story, they could also be said to be consistent to some extent with the 'Samaritan' role ─ that the numerous short calls were about giving small tasks to help G get through her day, and following up on these.
4. Even though we can well understand the inferences the Board says should be drawn, there are aspects of this case which are not proved on the evidence, and aspects which are not explained by the evidence. In these circumstances, given the extremely grave nature of the sexual relationship allegation, and we are not satisfied that the evidence provides the necessary 'clear or cogent or strict proof' which is necessary.
5. Nor are we satisfied on the evidence that Mr Dalton spent many nights at G's flat. We are satisfied he was there on 29 May 2009. We acknowledge the inference from that finding, that he was there on numerous other occasions. However, given the gaps in the evidence referred to above, we are not satisfied to the requisite degree that Mr Dalton was present at G's flat on those numerous other occasions alleged.

1. We now apply our findings above to the four remaining Charges against Mr Dalton. It is convenient for us to deal with these in this order: 7,4,3,8. In a sense, charges 7, 4 and 3 are like the rungs of a ladder, rising in order of difficulty of proof and seriousness. They allege respectively, failing properly to manage G's condition, having a personal relationship with her, and having a sexual relationship with her. Charge 8 is in a different category: misleading the Board in its investigation.

1. We find Charge 7 proved. It alleges that Mr Dalton failed to manage G's behaviour in a professional manner, and to ensure her psychiatric condition was properly treated. Mr Dalton admitted the significant components of this charge. As stated, his admitted extensive counselling of G, a person he knew had a serious psychiatric condition, over the ten and a half months from April 2009 to mid-February 2010, such that she relied on him 'a lot', cut across the treatment program of her treating team. And if the phone call in the guise of 'Alan' had achieved its aim of cutting G's links with Avalon, clearly it would have undermined it further. Whilst Mr Dalton might not have been obliged to complete an incident report about his conversations with G, or to document the incidents in her clinical records (and so Particulars (d)(iii) and (iv) are not proved) he was obliged to report them, and he did not. So all the other Particulars of Charge 7 are satisfied.
2. Charge 7 alleges this conduct comprised unprofessional conduct or alternatively, unsatisfactory professional performance under the HPRA. Whilst unsatisfactory professional performance is not defined in the HPRA unprofessional conduct is defined in s 3 as follows:

(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;

(b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner;

(d) providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for that person's well-being;

(e) influencing or attempting to influence the provision of health services in such a way that client care may be compromised;

(f) a contravention of section 94 or the guidelines issued under section 95;

(g) the failure to act as a health practitioner when required under an Act or regulations to do so;

(i) an offence where the health practitioner's suitability to continue to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the health practitioner to continue to practise because of the finding of guilt; or

(ii) an offence under this Act or the regulations; or

(iii) an offence as a health practitioner under any other Act or regulations;

(i) the contravention of, or failure to comply with a condition imposed on the registration of the health practitioner by or under this Act;

(k) the breach of an agreement made under this Act between a health practitioner and the responsible board that registered that practitioner.

1. We find that Mr Dalton's conduct in carrying out his extensive counselling activities and thereby prejudicing G's treatment and progress, is conduct of a leaser standard than a member of the public or his peers are entitled to expect (under (a) of the above definition of unprofessional conduct). It is conduct in connection with his work as a psychiatric nurse because it arose from his administration of a depot injection on 31 March 2009. That was the occasion when the contact between Mr Dalton and G commenced. We are also satisfied that Mr Dalton's conduct is contrary to (e) of the above definition of unprofessional conduct. That is, for the reasons expressed above, his conduct has clearly influenced or attempted to influence the provision of health services to G in such a way that her care may be compromised.

1. We find Charge 4 proved. It alleges Mr Dalton improperly initiated, pursued and/or participated in an inappropriate personal relationship with a vulnerable person.
2. We are satisfied that Mr Dalton's extensive involvement with G over the ten and a half months from April 2009 to mid-February 2010, amounted to an inappropriate personal relationship. The telephone records alone are sufficient to demonstrate this. There were 456 telephone communications between Mr Dalton and G over that period, and in all probability more, given we did not receive copies of G's phone bills for four of those months. Beyond that, however, Mr Dalton's evidence as to the detailed directions and counselling he gave G, and the statement that she relied on him 'a lot', reinforce the conclusion that he had an inappropriate personal relationship with her. It is relevant to this Charge that his influence, at least in relation to the telephone call on 29 June 2009, was contrary to her best interests.
3. We find the Particulars relating to the phone calls proved, as well as those relating to his call to Mr Chamberlain in guise of 'Alan' on 29 June 2009. We find he was at G's flat on 31 May 2009, when he made the call to SwingShift. In the light of the evidence received, we do not find proved the Particulars alleging he was at her flat on the numerous other occasions alleged, or that he entertained her at his home on the two occasions alleged.
4. Charge 4 alleges this conduct comprised professional misconduct, or alternatively, unprofessional conduct. The HPRA definition of professional misconduct in s 3 is as follows:

(a) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and

(c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession;

1. We find that Mr Dalton's personal relationship with G constitutes professional misconduct on the basis of (b) in the definition. Mr Dalton's conduct of an extensive personal relationship falls well short of what would be expected of a reputable psychiatric nurse. It constitutes a significant boundary violation. It is particularly serious in this case because of the intense isolation and vulnerability of the patient. We reject any contention that Mr Dalton's professional relationship with G was completed, and that a non-professional relationship of the kind he described as a 'Samaritan' could then be commenced without danger to the patient. As we have described, his 'Samaritan' relationship flowed directly on from his professional contact on 31 March 2009. There was no hiatus. He remained in a position of considerable power over G during the period from then until February 2010.

1. We find Chare 3 not proved. This alleges a sexual relationship with Patient G. Our reasons for this finding are set out above.

1. We find Charge 8 proved. Charge 8 alleges that Mr Dalton misled, or attempted to mislead, the Board during its investigation. In relation to the three Particulars alleged:
   1. Mr Dalton clearly only divulged the extent of his calls to G when the production of the telephone records in effect forced him to do so. It can hardly be said that omitting to mention 386 calls was an oversight. Rather, it was calculated to mislead the Board as to the true position, and to divert or mislead it in its investigation.
   2. There is nothing in the evidence apart from Mr Dalton's assertion, to suggest that G was a 'practising prostitute'. Even if it is assumed for the purposes of this Particular that sex was sought or given as part of an interaction in which G received some benefit such as the assistance with her television (which is not a finding we make) in G's circumstances, this would not have amounted to prostitution in the pejorative sense that Mr Dalton used the term. On the evidence, it would be more consistent with men taking advantage of G's vulnerability. However, this finding is not of great significance in terms of this charge because it was more in the nature of an attempt to undermine G's credibility, and it did not seriously divert or affect the investigation.
   3. This Particular alleges Mr Dalton misled the Board by falsely stating that he had only met G on one occasion (being when he gave her the depot injection on 31 March 2009). We find this proved to the extent that we are satisfied that Mr Dalton was present with G at her flat at 6.32 pm on 31 May 2009, when the call was made from her landline to SwingShift, Mr Dalton's employer. As stated, the evidence does not satisfy us to the requisite degree that Mr Dalton met G on all the other occasions alleged.
2. We find this constitutes professional misconduct within the meaning of (b) of the definition of that term in the HPRA. The non- disclosure of this information was quite misleading and demonstrated a lack of candour. Simply, Mr Dalton was 'caught out' when the telephone records were obtained one and three quarter years after the investigation had commenced, contrary to his hope and/or expectation. He then had to alter the explanations he had given for his conduct in the ways described above. Honesty is a fundamental requirement for a registered health professional in dealing with his or her registration Board, as it seeks to carry out its public protection function. The lack of candour demonstrated by Mr Dalton here is significant. In the circumstances, in our view, it clearly falls short of the standard of conduct observed by nurses of good repute or competency.

1. Mr Dalton requested that submissions as to the determinations which should be made following on from the Tribunal's findings be in writing. We have set dates for such written submissions to be received.

The following amended allegations are referred to the Victorian Civil and Administrative Tribunal pursuant to section 59(2)(g) of the Health Professions Registration Act 2005 ("HPRA").

Allegation 1: Patient 'T'- Inappropriate conduct towards a patient in his care

1. On or about 16 September 2008, Mr Barry George Dalton (Mr Dalton);

1.1 engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in s 3(1) of the HPRA; or

1.2 engaged in professional misconduct as defined in paragraphs (b) and/or (c) of the definition of' 'professional misconduct' in s 3(1) of the HPRA -

in that while working as a registered nurse he contravened an applicable code of behavior and/or otherwise breached his ethical responsibilities, in that he indicated to Patient 'T' to expose her breasts to him.

(a) The Australian Nursing end Midwifery Council's Code of Professional Conduct for Nurses in Australia (2006) provides:

Nurses recognise that vulnerable people, including children, people with disabilities, people with mental illness and frail older people in the community, must be protected from sexual exploitation and physical harm.

(b) The Australian Nursing and Midwifery Council's Code of Ethics for Nurses in Australia (August 2008) provides:

The power relativities between a person and a nurse can be significant, particularly where the person has limited knowledge; experiences pain, illness and fear; needs assistance with personal care; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and people in their care that must be recognised and managed.

(c) Standard 1.2 of the Australian Nursing and Midwifery Council's National Competency Standards for the Registered Nurse (2006) requires nurses to:

... recognise the responsibility to prevent harm.

(d) On 16 September 2008, Mr Dalton was working as a psychiatric nurse (registered in Division 1) at the Mental Health Inpatient Unit of the Maroondah Hospital, located in Ringwood East.

(e) On or about 16 September 2008, Mr Dalton approached Patient 'T' while she was in seclusion at Maroondah Hospital and displayed the keys to her, indicating that he could release her. He then gestured to Patient 'T' to lift up her top in order to expose her breasts, by lifting his own top up and down.

(f) When Patient 'T' had exposed her breasts Mr Dalton raised his thumbs to her before walking away from the seclusion room.

(g) On or about 16 September 2008, Patient 'T' reported to a staff member at Maroondah Hospital that Mr Dalton had gestured to her to lift up her top so as to expose her breasts.

(h) Mr Dalton knew or ought to have known that Patient 'T's' medical symptoms Included disinhibition,

Allegation 2: Patient 'T' - Improper disregard for the interests of a vulnerable person in his professional care

2.1 engaged In unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of unprofessional conduct' in s 3(1) of the HPRA; or

2.2 engaged in professional misconduct as defined in paragraphs (b) and/or (c) of the definition of 'professional misconduct' ins 3(1) of the HPRA -

in that while working as a registered nurse he contravened an applicable code of behavior and/or otherwise breached his ethical responsibilities, in that he failed to have regard to, and take steps to protect and promote the interests of Patient 'T'.

(a) The Applicant refers to and repeats particulars 1(a) - (h).

Allegation 3: Patient 'G' .. Breach of professional boundaries: sexual relationship with a patient

1. Between the period 31 March 2009 and 9 March 2010, Mr Dalton:

3,1 engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' In s 3(1) of the HPRA; or

3.2 engaged professional misconduct, as defined in paragraphs (b) and/or (c) of the definition of 'professional misconduct' in s 3(1) of the HPRA -

in that while working as a registered nurse he contravened an applicable code of behavior and/or otherwise breached his ethical responsibilities, in that he had sexual relations with Patient 'G', a psychiatric patient he had met during the course of his practice as a registered nurse,

(a) The Applicant refers to and repeats particulars I (a)-(c).

(b) On 31 March 2009 Mr Dalton provided a depot injection to Patient 'G', a patient at the North Western Mental Health ('NWMH") clinic, located in Coburg.

(c) During the consultation Mr Dalton asked Patient 'G' for her home address and phone number,

(d) On the evening of 31 March 2009, Mr Dalton visited Patient 'G' at her home uninvited arid asked her to have sexual intercourse with him,

(e) On 1 April 2009, Mr Dalton visited Patient 'G' at her home and had sexual relations with Patient 'G'.

(f) On various occasions in the period 1 April 2009 to 9 March 2010, Mr Dalton had sexual relations with Patient 'G' at her home and at his home in Ivanhoe.

(g) On 9 March 2010, Patient 'G' disclosed to NWMH that she had been in a sexual relationship with Mr Dalton since 1 April 2009,

Allegation 4: Patient 'G' - Breach of professional boundaries: personal relationship

1. Between the period 31 March 2009 and 9 March 2010, Mr Dalton:

4.1 engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) and/or (c) of the definition of 'unprofessional conduct' in s 3(1) of the HPRA; or

4,2 engaged In professional misconduct as defined in paragraphs (b) and/or (c) of the definition of 'professional misconduct' in s 3(1) of the HPRA -

in that while working as a registered nurse he contravened an applicable code of behavior and/or otherwise breached his ethical responsibilities, in that he improperly initiated and/or pursued, and participated in an inappropriate personal relationship with a vulnerable person, namely Patient 'G', a psychiatric patient who he met in the course of his practice as a registered nurse.

(a) The Applicant refers to and repeats particular 3(a)-(c).

(b) Mr Dalton used his personal mobile phone to telephone Patient 'G's' home phone number on 386 occasions;

(c) Mr Dalton received 68 calls from Patient 'G' to his personal mobile phone;

(d) Mr Dalton had repeated telephone conversations with Patient 'G';

(e) Mr Dalton visited Patient 'G' at her home on numerous occasions;

(f) Mr Dalton entertained Patient 'G' at his home on at least 2 occasions; and

(g) On 29 June 2009 at 09:02am Mr Dalton telephoned Patient 'G's' Case Manager Mr William Chamberlain at the Avalon Outreach Program and:

1. falsely stated he was "Patient 'G's' neighbour';
2. attempted to cancel Patient 'G's CT scan which was booked for 10:30am that day; and
3. falsely stated that Patient 'G' "no longer wanted any involvement' with the Avalon Program as she was 'intimidated" by Mr Chamberlain.

Allegation 5: Patient 'G' -- Improper disregard for the interests of a vulnerable person in his professional care

Allegation 6: Patient '' - Failure to have regard to the privacy of a patient in his care

Allegation 7: Patient 'G' - Failure to appropriately manage patient's behavior and psychiatric condition

1. Between the period 31 March 2009 and 9 March 2010:

7,1 Mr Barry George Dalton engaged in unprofessional conduct as defined in paragraphs (a) and/or (b) of the definition of 'unprofessional conduct' In a 3(1) of the HPRA; or

7,2 Mr Barry George Dalton's professional performance was unsatisfactory -

in that in that while working as a registered nurse he contravened an applicable code of behavior and/or otherwise breached his ethical responsibilities, In that he failed to manage Patient 'G's' behavior in a professional manner and/or to ensure that her psychiatric condition was professionally treated.

(a) Standard 7 of the Australian Nursing and Midwifery Council's National Competency Standards for the Registered Nurse (2006) requires nurses to:

Provide comprehensive, safe and effective evidence - based nursing care to achieve identified individual/group health outcomes.

(b) On various occasions during the period between 1 April 2009 to 9 March 2010, Mr Dalton had telephone conversations with Patient 'G' in which Mr Dalton discussed Patient 'G's' medical issues.

(c) Mr Dalton knew or ought to have known about Patient 'G's' psychiatric condition.

1. refer Patient 'G' to an appropriate health care professional during these telephone conversations; and/or
2. report these telephone conversations to his employer (SwingShlft Nurses) and to NWMH; and/or
3. complete an incident report detailing the telephone conversations; and/or
4. document the incidents in Patient 'G's' clinical records.

(e) Mr Dalton telephoned the Avalon Outreach Program using his personal mobile phone and falsely identified himself as Patient 'G's' neighbour, attempted to cancel her CT scan and falsely stated that Patient 'G' "no longer wanted any involvement' with the Avalon Program as she was "intimidated"' by Patient 'G's' Case Manager.

1. Between the period 13 April 2010 and about November 2012 Mr Dalton:

8.1 engaged in unprofessional conduct as defined in paragraphs (a> and/or (b) and/or (c) of the definition of 'unprofessional conduct' in s 3(1) of the HPRA; or

8.2 engaged professional misconduct, as defined in paragraphs (b) and/or (C) of the definition of 'professional misconduct' in s 3(1) of the HPRA -

in that he misled or attempted to mislead the Board and the Board's investigating officers during the investigation:

8.2.1 by denying or minimising the number and frequency of telephone calls that he made to Patient 'G' and the reason for those calls;

8.2.2 By falsely claiming Patient' G' she was a prostitute who offered to have sex with him (in the absence of any such evidence); and

8.2.3 By falsely stating that he had only met Patient 'G' on one occasion.

[1] See section 289 of the National Law.

[2] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 per Sir Owen Dixon.

[3] Medical Board of Australia v Naim [2013] VCAT 329 at [53]. See also NON v DPP [2012] VSCA 198 [73] - [74] (per Redlich and Harper JJA and Kirton AJA), and Psychology Board of Australia v Megchelen [2013] VCAT 328 at [62].

[4] T's statement, paragraph [5], Hearing Book, page 54.

[6] Hearing Book, pages 81-3, and 645-7, (Exhibit 2).

[14] Neither Ms Coppins nor Ms Vecchio said they attended the police station with G on 16 February 2010. Ms Coppins said she attended with G on 12 March 2010─ see below. So the true position as to who accompanied G to the police station is unknown. Whilst this is an element of uncertainty in the case, it does not have great significance in a forensic sense.

[18] NWMH Progress Notes entry by Dr Madadeniya, 16 February 2010, Hearing Book page 575.

[22] Progress notes made by Ms Coppins - Hearing Book, page 583.

[23] Avalon Progress Notes for G, 1 July 2009- hearing book page 626A.

[25] Witness statement of Eric Smith dated 9 January 2012, paragraph 21, Hearing Book, page 413.

[26] Exhibit G, Hearing Book, pages 425-7.

[30] The sequencing of paragraphs in that statement might be taken to suggest that the calls Mr Dalton said he received from G in May/June 2009 were two months after the calls he said she made to him from a public phone box. However, in our view, this is not the correct reading of Mr Dalton's statement: looking at it as a whole, it is not written in strict chronological sequence.

[31] It is noted these medication notes were not made available to the Tribunal.

[36] Or, according to Mr Chamberlain, someone in a professional relationship with her- transcript page 199-201.

[42] G made 68 calls to Mr Dalton from her landline during the seven of the ten and a half months for which we were provided with her telephone records. That is, at the rate of about one every three days.

[49] We do not use the expression 'counselling' in any technical sense. Rather, we believe it is, in normal parlance, an appropriate description of what Mr Dalton said that he did in his numerous telephone contacts with G. (We note that in a different context, Mr Dalton distinguished between counselling and 'self help': This was when he was responding to Mr Smith's evidence about his statement that on 9 March 2010 that Mr Dalton had referred to the possibility of G attending a counselling group. Mr Dalton denied this, and said he had sought to initiate a self help group, not a counselling group. However, we do not regard this distinction as relevant to our use of the term 'counselling', which, as we have said, is used in an non-technical sense in any event.)

[51] Progress Notes of Ms Coppins, 12 March 2010, Hearing book page 584.

[56] Telephone records, Hearing Book, page 134.