• Some of the individual instances would by themselves amount to unprofessional conduct, but taken together those matters constitute professional misconduct;
• The respondent is reprimanded;
• The respondent's registration is suspended for two months;
• Conditions are imposed on the respondent's registration in accordance with the proposed Schedule of Conditions with minor variation; and
• The respondent is to pay the complainant's costs of and incidental to these proceedings fixed overall at $5,000.

Health Practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional misconduct - Boundary violation - Inappropriate patient management and care - Inadequate record-keeping - Reprimand, registration suspended for 2 months, conditions imposed on registration

Health Practitioner Regulation National Law (South Australia) Act 2010 Sch 2 s 193

South Australian Civil and Administrative Tribunal Act 2013 s 60

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46

Pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013, the Tribunal prohibited the publication of the names of, or any material tending to identify, the various persons who are identified in the application or the evidence before the Tribunal, apart from the respondent.

1. This is a disciplinary action against a registered nurse. It is a matter that was referred to the Tribunal by the Nursing and Midwifery Board of Australia (the Board) under s 193 of the National Law,[1] and it has been the subject of a hearing before the Tribunal today.
2. The initial referral contained two allegations. The first allegation has been withdrawn by the Board. We have been asked by the parties to deal with the second allegation on the basis of an agreement as to the facts and an agreement that those facts constitute professional misconduct. We have also been asked by the Board to impose disciplinary sanctions that have been jointly proposed by the parties.
3. We are going to do that, with one minor variation to which I will refer in due course. In doing so, we're mindful of the principles that were set down by the High Court in the case of Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 and particularly the judgment of the majority at paragraphs [57] and [58] of that decision. We consider in the light of those principles that it is appropriate to proceed in the way that has been suggested to us.
4. The respondent has been a registered nurse since 7 January 2014, but prior to first becoming registered, she began in 2009 to work as a paid carer for a person who we will call AB for the reasons of privacy. That continued from 2009 through until April of 2020 when that relationship ceased due to the matters that gave rise to this referral to the Tribunal. From 2009, AB and his wife welcomed the respondent into their home and gave her their trust. AB was a severely disabled man who in lay terms was a quadriplegic with no ability to voluntarily move his body apart from one finger and his eyes. So he was a highly vulnerable and highly dependent person, and the respondent was entrusted with his care within the family home over a long period of many years.
5. We make findings in accordance with the statement of agreed facts. We won't go through all of those facts at the present time, but what transpires is that over a period of about six years prior to April of 2020, the respondent in providing care to AB allowed a situation to develop in which AB was regularly making highly inappropriate sexual comments to the respondent. Expert evidence before us suggests that this was quite likely due to cognitive changes in AB caused by a developing neurological condition.
6. Over a period of about six to seven years, he was making these highly inappropriate sexual comments to the respondent, and the respondent failed to manage that situation in any way at all. Quite clearly, the relationship during this period had become an inappropriate relationship, and the relationship was perceived by AB in a way that was completely unprofessional and inappropriate. It was the duty of the respondent as a registered nurse to recognise the significance of that change in behaviour to a proper assessment of AB's condition and to his need for care and treatment, and to record the situation that had developed and to properly report the situation that had developed to her superiors so that it could be ensured that AB received proper care and treatment.
7. The respondent failed over a period of about six years to manage the situation in any way or to appropriately record or report the situation. In fact, over that same period, the respondent exacerbated the situation by making inappropriate personal disclosures concerning herself in the presence of AB and his wife, and on one occasion in 2020, it is admitted that on leaving the home, she blew a kiss to AB, which clearly was, against the context of that background, highly inappropriate.
8. The failures of the respondent to which I've referred constitute breaches of the various codes of conduct applicable to her which are in evidence before the Tribunal. The respondent's failures, in our view, caused damage to the marriage relationship between AB and his wife and certainly in the end caused significant disruption to his care.
9. The respondent has in these proceedings and previously expressed significant remorse for her actions and has taken some steps to further educate herself in the area of professional boundaries. She has indicated, in our view, some insight into her failures, but insight comes at different levels. It is our view that there are still areas in which insight has yet to be gained. The respondent's acknowledgement of her failures and her need for further education are still very much a work in progress. We consider that she requires further education and training in the areas of maintaining appropriate boundaries, in assessment of patients or clients, and in record-keeping and reporting of relevant issues.
10. It is admitted, and we find, that the respondent's conduct during this period of time fell substantially below the standard of conduct to be expected from a person of her training and experience and therefore constitutes professional misconduct. Some of the individual instances would by themselves amount to unprofessional conduct and taken together those matters constitute professional misconduct. The course of conduct overall, in our view, constitutes professional misconduct.
11. The purposes of disciplinary action are well-known. They are entirely protective and disciplinary action is not intended in any way as a punishment. It is for the purpose of protecting the public. We intend to impose the disciplinary action suggested by the parties with one variation.
12. We impose a reprimand, which indicates our total condemnation of the failures to which we've referred.
13. We impose a suspension of the registration of the respondent for a period of two months commencing forthwith. We are of the view that that suspension is necessary to bring home to the respondent the degree to which her conduct falls substantially short of the appropriate standard. It is also necessary to reassure the public that appropriate standards within the profession will be maintained and to deter other practitioners from engaging in like conduct.
14. We also intend to impose conditions on registration. Some proposed conditions are set out in the book of documents, and we intend to amend those conditions in paragraph 1 by adding a reference to risk assessment, record-keeping and reporting. We intend to recast paragraph 2.2 to read as follows.

"The education consists of: > > (a) a minimum of six hours in the area of maintaining professional boundaries, and > > (b) a minimum of six hours in the areas of risk assessment, record-keeping and reporting."

15. We also make an order that the respondent pay the Board's costs of and incidental to these proceedings fixed overall at $5000, that being an amount agreed between the parties.
16. We make an order pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 prohibiting the publication of the names of or any material tending to identify the various persons who are identified in the application or the evidence before the Tribunal apart from the respondent herself.
17. We also direct that access to documents on the Tribunal file shall not be granted to any third party unless permission for such access is given by a presidential or senior member of the Tribunal after the parties have been given an opportunity to be heard in relation to such access.
18. Unless counsel can point out anything that we have missed, those are the reasons for the decision of the Tribunal.

[1] The Health Practitioner Regulation National Law (South Australia) (the National Law) is to be found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010.