1. The respondent kissed the patient on the cheek.
2. The Tribunal did not find that the respondent's intentions were sexual in nature or that the respondent intended to harm the patient in any way. However, the Tribunal did find that the respondent knowingly breached clear professional boundaries and exercised poor judgement in performing the massage on the patient in the circumstances.
3. The respondent's actions and comments caused serious harm to the patient and such harm ought to have been foreseeable to a person of his experience.
4. The Tribunal found that the conduct referred to was professional misconduct, in that it was a substantial departure from the standard of conduct to be expected of a registered nurse of his training and experience.[3] The Tribunal also found that the conduct constituted professional misconduct, in that it was conduct inconsistent with the respondent being a fit and proper person to be registered.[4]
5. The further findings of the Tribunal were that the respondent failed on three occasions to comply with the provisions of s 130 of the National Law, and that the respondent failed, on the day of the incident, to make adequate notes in the patient's records despite being aware of concerns that had been raised by the patient.
6. Taking these matters together - that is, the s 130 matters and the failure to make adequate notes - the Tribunal found that this also constituted professional misconduct, in that it was a substantial departure from the standard of conduct to be expected of a registered nurse of the respondent's training and experience.
7. As indicated, the matter was referred for a hearing today as to what would be the appropriate sanctions to be imposed. At the hearing today, the respondent maintained his denial of the allegations that he made inappropriate comments to the patient or that he kissed the patient on the cheek. The respondent submitted to the Tribunal today that the patient had misinterpreted his actions and/or invented the allegations against him. The Tribunal's findings, of course, are to the contrary.
8. The respondent indicated to the Tribunal that he was embittered by the effect that these allegations had had on his career, essentially bringing it to an end, after a significant career as a skilled registered nurse.
9. The focus of the respondent's submissions today was more on his own situation rather than the situation of the patient. The patient had provided to the Tribunal a statement in the nature of a victim impact statement, and we take that statement into account in considering the matter. The respondent's stance in relation to the hearing today does provide strong support for the submissions made by the Board that there is, in this case, a lack of insight or contrition, given the Tribunal's findings of fact and the respondent's failure to accept those findings. Clearly, the respondent has seen no real need to reflect on or to address any deficiency in his own conduct.
10. The respondent is 58 years old. As we have already indicated, he practised for many years as a highly skilled registered nurse. He has not worked as a registered nurse since August of 2020.
11. He has subsequently started a business as a gardener and handyman and he tells the Tribunal that his intention is to continue in this occupation. He has advised the Tribunal that he has no intention of endeavouring to re-enter the nursing profession, nor to work in any health-related work in the future.
12. However, as has been discussed, the issues before the Tribunal and to be determined by the Tribunal are of a somewhat broader nature. The Board, in its outline of argument, referred the Tribunal to the decision of this Tribunal in the matter of Pharmacy Board of Australia v Roberts,[5] and summarised the principles arising from that case, in a way which we think appropriate, as follows:
    1. The purpose of disciplinary proceedings is entirely protective. No element of punishment is involved.
    2. The imposition of disciplinary sanctions may serve one or all of the following purposes:

(1) Preventing practitioners who are unfit to practise from practising;

(2) Securing the maintenance of professional standards;

(3) Assuring members of the public and the relevant profession that appropriate standards are being maintained and that professional misconduct or unprofessional conduct will not be tolerated;

(4) Bringing home to a practitioner the seriousness of their conduct;

(5) Deterring a practitioner from any future departures from appropriate standards;

(6) Deterring other members of the profession who might be minded to act in a similar way; and

(7) Imposing restrictions on a practitioner's right to practise so as to ensure that the public is protected.

1. The protection of the public may sometimes require disciplinary action which has a greater adverse effect on the practitioner than may be warranted if punishment was the relevant consideration - and the reference for that is Craig v Medical Board of South Australia.[6]

1. Unlike in sentencing in a criminal court, the personal circumstances of a practitioner may be of limited significance in the process of determining what sanction is necessary in the public interest - and reference there is made to Healthcare Complaints Commission v Litchfield[7] and the Medical Board of Australia v Singh.[8]
2. A Tribunal should impose disciplinary sanctions that adequately reflect the incompatibility of the misconduct with the fitness of the person to hold registration in the profession. The disciplinary action should be adequate to convey to other practitioners and the general public that the conduct will not be tolerated.

1. In the matter before the Tribunal, the Board sought the following sanctions:

(1) The imposition of a reprimand;

(2) That the respondent be disqualified from seeking registration under the National Law for a period of three years; and

(3) That the respondent be prohibited from providing any health service until such time as he was successful in regaining registration under the National Law.

1. Having given due consideration to this matter, the Tribunal is of the view that the sanctions proposed by the Board are necessary and appropriate in this case. We will briefly summarise our reasons for this:

1. The respondent's conduct in transgressing professional boundaries and his lack of judgement in performing the massage were, together, considered by the Tribunal to amount to professional misconduct, in the sense that it was conduct inconsistent with a fitness to practise. That being so, and in view of the lack of insight and contrition and the absence of any attempt to address the professional concerns identified, the Tribunal can have no present confidence in the respondent's fitness to practise at present or in the future. 2. There remains a need to bring home to the respondent the seriousness of the conduct found proved by the Tribunal and to provide specific deterrence for the respondent in relation to any future practice.

1. Those two considerations may be of a somewhat academic nature to the respondent, in light of his stated intention to not seek re-engagement in the nursing profession or any health profession. However, it is nonetheless appropriate that the Tribunal impose a period of disqualification after which any application for registration could be made.

1. It is important in this case that the Tribunal imposes a sanction that will provide assurance to the public and other members of the profession that professional standards will be maintained, and that serious breaches of those standards will not be tolerated and, indeed, will be met with significant consequences. We consider a disqualification of three years is necessary and appropriate for that purpose, and for the purpose of deterring any other practitioners who might be minded to breach professional boundaries in a similar way. 2. So too, we consider that the proposed prohibition is required, for the reasons that are identified in the submissions of the Board; namely, in summary, to ensure that the public is protected and to ensure that the order of disqualification is not circumvented by practice in an allied health area.
2. For those reasons, it is our view that the sanctions proposed by the Board are both necessary and appropriate and we hereby impose those sanctions.
3. We also consider that it is appropriate that the Board have its costs of these proceedings, and we order that the respondent pay the Board's costs to be agreed, and in default of agreement to be assessed by the Tribunal. We draw to the Board's attention what the respondent has said about his limited means, and no doubt the Board will take that into account in any attempts to negotiate costs with the respondent.
4. The Tribunal has prohibited the publication of the name of, or any material tending to identify, the patient referred to in this Statement of Reasons.

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

[2] Medical Board of Australia v Lawless [2025] SACAT 5.

[3] Paragraph (a) of the definition of "professional misconduct" - s 5 of the National Law.

[4] Paragraph (c) of the definition of "professional misconduct" - s 5 of the National Law.

[5] [2022] SACAT 111 at [38] - [46].

[6] [2001] SASC 169; (2001) 79 SASR 545 at 553-554.

[7] [1997] NSWSC 297; (1997) NSWLR 630 at page 636.

[8] [2017] WASAT 33 (S) at [30].