plaintiff. The complainant succeeded. The respondent was reprimanded; his nursing registration was cancelled; he was disqualified from applying for registration for ten years; he was prohibited from providing...
Key principles
A nurse’s conduct in forming and pursuing a personal relationship with a patient while the patient is receiving care, including exchanging private contact details, extensive...
A relationship that continues soon after discharge may remain a serious breach of professional boundaries where it began during the nurse-patient relationship and the former...
Wilfully giving false or misleading explanations to a regulatory investigator about the relationship and related communications can constitute professional misconduct. The...
The Tribunal assessed the evidence on the civil standard, applying the Briginshaw approach, and considered whether the evidence logically supported the findings, including the...
Issues before the court
Whether the respondent breached professional boundaries during the patient's hospital admission.
Whether the post-discharge relationship and cohabitation constituted professional misconduct.
Plain English Summary
SACAT found that a nurse crossed professional boundaries with a vulnerable patient while she was in hospital, continued a sexual relationship with her after discharge, and repeatedly misled the regulator about what had happened. It treated both the relationship and the deliberate lack of candour as professional misconduct. The Tribunal cancelled his registration, imposed ten-year restrictions on returning to registration and providing health services, reprimanded him, and ordered him to pay the Board's costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,014 words · generated 30/09/2026
What happened
The Nursing and Midwifery Board of Australia complained about Robert Monteduro, a registered enrolled nurse employed at Lyell McEwin Hospital. The complaint concerned his dealings with a patient identified in the reasons as VXJ, whose identity was protected by a confidentiality order. The Tribunal described six grounds: professional-boundary breaches during admission and after discharge, a sexual relationship after discharge, and false or misleading explanations in three AHPRA interviews.
Whether the respondent's explanations to AHPRA were false or misleading and professionally culpable.
What disciplinary orders were appropriate.
Cited legislation
2 cited instruments linked from this judgment.
VXJ was a psychiatric inpatient from 28 March to 3 May 2012. Monteduro provided care and conducted formal risk assessments. The Tribunal found he knew she was vulnerable and had mental-health needs. While she was in hospital, the two exchanged personal telephone numbers. Telephone records showed extensive communications, although the exact content of calls and messages was not available to the Tribunal. It found they discussed being together, kissed, and met away from the ward, including in Monteduro's car, at the library and on the hospital lawns.
After discharge, their contact continued. The Tribunal found that VXJ moved into Monteduro's home by about July 2012 and continued living with him until November 2015. It found that the relationship was a de facto relationship and that it was sexual from at least July 2012. Its findings included that VXJ slept in Monteduro's bed and that a Modbury tenancy was arranged to conceal that she continued living with him. It also found that, during their cohabitation, Monteduro manipulated VXJ into not receiving ongoing psychiatric care.
The regulator's concerns were not confined to the relationship. The Tribunal found that Monteduro gave misleading explanations in AHPRA interviews in March 2013, February 2014 and March 2016. Those explanations concerned, among other things, when the parties exchanged numbers, whether and how long they lived together, whether their relationship was sexual, whether he had continued contact with VXJ, and whether he used a second mobile number.
The matter was decided on the papers, without an oral hearing. The Tribunal had a four-volume book of documents, including interview transcripts, records, statements and phone records. The respondent had filed a response earlier in the proceeding but did not attend a directions hearing or file the later written submissions sought by the Tribunal. SACAT recorded that it provided opportunities to participate before directing that the matter be determined on the papers.
Why the court decided this way
The Tribunal's starting point was the nature of the nurse-patient relationship and the patient's vulnerability. The Code of Professional Conduct for Nurses in Australia, quoted in the reasons, said that nurses should preserve the trust inherent in care, recognise the power imbalance that can make patients vulnerable, protect them from exploitation and maintain professional boundaries. The Code also said that sexual relationships with people with whom a nurse previously had a professional relationship are inappropriate in most circumstances.
On Ground 1, the Tribunal did not treat the phone-number exchange as an isolated lapse. It considered the volume and pattern of calls, the absence of those contacts from the patient notes, and the evidence that the parties met and kissed during the admission. It concluded that the communications were inconsistent with professional boundaries and that the conduct was substantially below the standard reasonably expected of a practitioner of equivalent training or experience.
For the post-discharge conduct, the Tribunal focused on the proximity between discharge and cohabitation, the patient's vulnerability, and the relationship's origin while she was in Monteduro's care. It rejected his explanations about separate sleeping arrangements, relying in part on evidence from his son. It also found that VXJ continued living with him despite the appearance created by a separate rental tenancy. The Tribunal did not find whether Monteduro raped VXJ. It did, however, find there had been a physical altercation at the end of the relationship that caused bruising. That distinction matters: the disciplinary findings did not depend on a finding of rape.
The Tribunal separately found professional misconduct in the misleading AHPRA interviews. It found that Monteduro owed a duty of candour and co-operation when investigated by a regulator. It considered the explanations wilful and misleading, not simply mistaken or incomplete. The findings covered accounts of the timing of the phone-number exchange, living arrangements, the sexual nature of the relationship, contact with VXJ, and the second mobile number.
The Tribunal explained that it was not bound by the rules of evidence under s 39 of the SACAT Act, but that its decision still had to rest on material logically relevant to the facts. It applied the civil standard, with reference to Briginshaw and related authorities. It acknowledged that it had not seen witnesses in person, that VXJ's mental condition might affect reliability, and that the breakdown of a relationship could provide reasons for a person not to tell the truth. It said it had not accepted statements uncritically. Its findings instead reflected its assessment of corroborating evidence and the inconsistencies and unsatisfactory features in Monteduro's explanations.
In selecting orders, the Tribunal gave particular weight to his apparent lack of insight, absence of contrition, risks to VXJ's mental health, the controlling aspects of the relationship it accepted on VXJ's evidence, and the active efforts to mislead investigators. It described discipline as serving public protection and the maintenance of professional standards. The resulting orders were cancellation, a ten-year disqualification from applying for registration, a ten-year prohibition on providing any health service, a reprimand and costs.
Before and after state of the law
The decision applied, rather than purported to change, the statutory and professional framework set out in its reasons. Section 5 of the National Law defined professional misconduct to include conduct substantially below the standard reasonably expected of a practitioner of equivalent training or experience, including multiple instances considered together, and conduct inconsistent with being a fit and proper person to hold registration. The Tribunal applied that definition to the relationship conduct and the misleading regulatory interviews.
The nursing Code supplied the professional context. Its provisions concerning vulnerability, power imbalance and boundaries helped explain why a relationship beginning during active care could be professionally serious even when some of the relationship continued after discharge. The Tribunal's reasoning was fact-specific: it emphasised the patient's vulnerability, the respondent's knowledge of it, the relationship's commencement during admission and its continuation soon afterwards.
Section 196 authorised the disciplinary orders. The Tribunal used its powers to reprimand and cancel registration, and, following cancellation, to disqualify the respondent from applying for registration and prohibit him from providing health services for stated periods. The decision therefore illustrates the use of those statutory powers in response to findings of misconduct; it does not establish that the same periods or orders automatically follow in other cases.
For evidence, the Tribunal cited s 39 of the SACAT Act and authorities concerning logically probative material and the civil standard of proof. It explained how it approached the difficulties created by deciding the matter on documents rather than oral evidence. The decision's significance lies in its application of those principles to the record before it, not in a claim that documentary proceedings dispense with careful scrutiny.
Key passages with plain-English translation
The reproduced reasons do not provide a consistent set of numbered paragraphs for the Tribunal's findings. The following references therefore identify passages by their headings or subject matter rather than assigning paragraph numbers.
Ground 1, telephone communications: The Tribunal said the number of calls was “inconsistent with the calls being of a professional nature” and that the communications did not maintain a professional boundary. In plain English, it regarded the scale and private nature of the contact as incompatible with the nurse's professional role, particularly given that the patient was still receiving care.
Grounds 4 to 6, AHPRA interviews: The Tribunal found that Monteduro owed “a duty of candour and co-operation” when investigated by a regulatory body. In plain English, it treated truthful and co-operative answers to the regulator as a professional obligation, and found that deliberately misleading answers were independently serious conduct.
Disciplinary orders, insight: The Tribunal said the respondent appeared to have “little insight into the wrongfulness of his conduct”. In plain English, it considered that he had not meaningfully recognised the seriousness of the boundary breaches, which weighed in the disciplinary assessment.
Disciplinary orders, public protection: The Tribunal stated that disciplinary action aims “to protect the public”. In plain English, the orders were framed as protective and regulatory measures, not only as punishment for past conduct.
What fact patterns trigger this precedent
The decision is most relevant to fact patterns where a practitioner begins a personal or intimate relationship with a patient during active care, or where contact during care develops into a relationship soon after discharge. The Tribunal attached importance to the fact that Monteduro had cared for VXJ, knew of her vulnerability and mental-health needs, exchanged private numbers with her, and met and kissed her while she remained an inpatient.
It is also relevant where the evidence suggests that a relationship was concealed or misrepresented. Here, the Tribunal found extensive private communications, cohabitation, a separate tenancy that did not reflect where VXJ actually lived, and explanations to AHPRA that understated the relationship and contact. The case shows that the regulator's investigation conduct can be assessed separately from the underlying patient relationship.
The decision does not mean that every post-discharge relationship necessarily amounts to misconduct. The Tribunal's reasoning depended on its findings about this relationship's commencement during care, the patient's vulnerability, the short interval before cohabitation, the nature and duration of the relationship, and the practitioner's conduct. Nor did it decide every allegation made by VXJ: it expressly made no finding on whether rape occurred. That limit should be kept in view when using the case as a comparator.
How later courts have treated it
The supplied judgment identifies authorities it considered when discussing penalty, but it does not provide any later decisions that cite or apply Monteduro. It is therefore not possible from this source alone to describe how later courts or tribunals have treated the decision.
The cases listed in the penalty footnote are decisions that SACAT considered in 2020, not later treatment of Monteduro. They include decisions involving relationships with patients, boundary breaches, financial relationships or other forms of misconduct. The Tribunal expressly noted that each case turns on its own facts. Its comparison of penalties should not be read as a fixed tariff.
A reliable account of later treatment would require a separate review of subsequent judgments and tribunal decisions. That material is not contained in the supplied reasons, so no claim about whether the case has been followed, distinguished or criticised can be made here.
Still-open questions
Several matters were not resolved, or are left open by the limits of the reasons provided. First, the Tribunal did not determine whether Monteduro raped VXJ. It found a physical altercation and bruising but did not make a finding on the rape allegations. Any summary of the case should preserve that distinction.
Second, the Tribunal did not have the text messages themselves, and it noted that the exact details of each telephone contact were unknown. Its findings about the nature of communications drew on the records, surrounding evidence and the parties' accounts. The case therefore does not provide a detailed ruling about the content or meaning of particular messages.
Third, the matter proceeded on the papers. The Tribunal explained that it accounted for the absence of live testimony and assessed the documentary material cautiously, but the reasons do not explore how the same contested evidence might have been tested in an oral hearing.
Finally, the decision does not supply later judicial treatment or establish a general period of disqualification for boundary misconduct. It records the orders made on these facts and the factors that influenced them. The broader application of those factors, including how different forms of post-discharge relationships are assessed, must be determined from other relevant sources, which are not included here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Judgment (134 paragraphs)
[1]
Nursing and Midwifery Board of Australia v Monteduro [2020] SACAT 27 (4 May 2020)
[2]
Nursing and Midwifery Board of Australia v Monteduro[2020] SACAT 27
[3]
The Nursing and Midwifery Board of Australia brought a complaint against a registered nurse, Robert Monteduro, alleging professional misconduct on six grounds. The grounds related to the respondent's relationship with a patient and included failing to observe a proper professional relationship and the making of false and misleading explanations to the Australian Health Practitioner Regulation Agency.
[4]
The respondent is reprimanded.
The respondent's registration as a nurse is cancelled.
Pursuant to s 196(4)(a) of the National Law the respondent is disqualified from applying for registration for ten years.
Pursuant to s 196(4)(b) of the National Law the respondent is prohibited from providing any health service for ten years.
The respondent is to pay the Complainant's costs of and incidental to these proceedings to be taxed or agreed.
[5]
Disciplinary - Health practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional misconduct - Registration cancelled - Disqualified from applying for registration for 10 years - Prohibited from providing health service for 10 years
[6]
Health Practitioner Regulation National Law Act (South Australia) s 6
[7]
Health Practitioner Regulation National Law ss 5, 196
Mr S Ward of Piper Alderman for the Complainant (by written submission)
[25]
The Tribunal made a confidentiality order under s 60 of the South Australian Civil and Administrative Tribunal Act 2013 prohibiting the publication of the names of, or any information tending to identify, the patient, notifiers or members of the public who provided evidence to the authorities or to this Tribunal in relation to the conduct of the respondent.
[26]
Made under the Health Practitioner Regulation National Law (South Australia) Act 2010
[27]
This is the determination of a Complaint made by the applicant, the Nursing and Midwifery Board of Australia, against a registered health practitioner, Robert Monteduro. Mr Monteduro is a registered enrolled nurse, employed by SA Health at the Lyell McEwin Hospital ('LMH') and worked as a mental health nurse.
The Complaint was originally made to the South Australian Health Practitioners Tribunal in April 2019, and has since been transferred to South Australian Civil and Administrative Tribunal ('SACAT').
Section 6 of the Health Practitioner Regulation National Law Act (South Australia) provides that 'SACAT' or 'the Tribunal' is the 'responsible tribunal' for the Health Practitioner Regulation National Law ('National Law'), which is contained in Schedule 2 to the Act.
[28]
The Complaint concerns a patient, referred to herein as VXJ. The Complaint raises six Grounds of Complaint which are then divided into a series of particulars. The essence of the complaint is of professional misconduct. The six grounds can be summarised as follows.
[29]
Ground 1 relates to an assertion that Mr Monteduro failed to observe a proper professional relationship with VXJ whilst she was an inpatient at the LMH from 27 March 2012 to 3 May 2012.
2. Ground 2 asserts that Mr Monteduro failed to observe a proper professional relationship with VXJ after she was discharged from the LMH during the period from 3 May 2012 to 19 November 2015.
[30]
Ground 3 asserts that Mr Monteduro breached professional boundaries by having a sexual relationship with VXJ after she was discharged from the LMH.
[31]
Ground 4 asserts that Mr Monteduro gave false and misleading explanations to Australian Health Practitioner Regulation Agency ('AHPRA') investigators on 27 March 2013 ('First AHPRA Interview').
2. Ground 5 asserts that Mr Monteduro gave false and misleading explanations to AHPRA investigators on 7 February 2014 ('Second AHPRA Interview').
3. Ground 6 asserts that Mr Monteduro gave false and misleading explanations to AHPRA investigators on 22 March 2016 ('Third AHPRA Interview').
The procedural history includes the following. Mr Monteduro was initially represented by solicitors. Through his solicitors he filed a Response in June 2019. The Response admitted some but not all the matters complained of. In October of 2019 Mr Monteduro's solicitors ceased to act, and on 9 October 2019 an address for service was provided for him, which included a residential address, mobile number, and email address. In mid-October 2019 Mr Monteduro confirmed with the Tribunal that he had notice of a directions hearing listed for 20 November 2019 and would advise as to his availability for a conciliation conference. He did not attend the directions hearing on 20 November 2019. Directions were made for the filing of written submissions. The applicant filed written submissions but the respondent did not. The respondent was given the opportunity to file written submissions and indicate whether an oral hearing should take place. Notices were sent to his residential address and email address as provided on the notice of address for service. The registry of SACAT unsuccessfully tried to contact Mr Monteduro by telephone. He did not contact the Tribunal, and on 13 February 2020 directions were given for the matter to be determined on the papers.
The Tribunal has been provided with, and has regard to, in addition to the Complaint and written submissions of the Complainant, a book of documents, comprising four volumes of 1233 pages. The material includes, amongst other things, transcripts of interviews between Mr Monteduro and his employer, transcripts of interview between AHPRA and Mr Monteduro, documents from SAPOL, witness statements, medical records, phone records, written communications and various codes of conducts for nurses in Australia. Whilst the matter is being determined on the papers, in the absence of Mr Monteduro, his position and explanations are contained in the various transcripts and in his response.
[32]
The background facts are as follows.
VXJ was a psychiatric inpatient at the LMH from 28 March 2012 to 3 May 2012, in ward 1G. Mr Monteduro was one of the nurses who provided care to VXJ during that period. The clinical records reveal that she was first diagnosed with bipolar disorder back in 2005, with subsequent diagnosis of schizoaffective disorder following psychotic episodes. At the time of her initial assessment in March 2012 she had reported a three day history of thoughts to harm her parents and dogs, thoughts of setting her bed on fire, thoughts of self-harm (but with no plans or intent to commit suicide) and delusional thoughts.
Various medical records refer to Mr Monteduro as the worker, and refer to the topic of self-harm, with reference to a knife being found in her pocket by staff. Some of the records are signed by him.
It follows that Mr Monteduro knew that VXJ was a vulnerable person.
[33]
On 17 July 2012 AHPRA received a Notification from an employee of SA Health which stated:
[34]
Mr Monteduro worked as a nurse at Ward IG, LMH.
2. The complaint concerned a patient 'VXJ'.
[35]
The detail was 'Violation of Nurse/Patient Boundaries'.
[36]
The complainant did not tick the box stating it was a notifiable incident.
2. The details were:
[37]
The patient received nursing care from [Robert Monteduro] during an acute psychiatric inpatient episode in Ward 1G Lyell McEwin Hospital between 28 March and 3 May 2012. The patient reports that she is now living at the home of [Robert Monteduro] with him.
[38]
[VXJ]... is case managed by the ATRS team. Today she was visited by [MC] (ATRS case worker who provided me the following report:
[VXJ] has moved out of the home to the following address: [Robert Monteduro's address]
VXJ stated that when she was an inpatient one of the nursing staff gave her his phone number. Due to difficulties at home she has moved in with him. She stated it was not a romantic relationship. She also stated the male's name is [Robert Monteduro]. CBIS does show a [Robert Monteduro] who has done a risk assessment on her but I do want to point this issue directly at him.
[39]
On 18 July 2012 SA Health wrote to the respondent referring to a complaint made about him and referred to a conversation with the respondent, stating:
[40]
Thank you for meeting with me this a.m. to talk about a complaint that has been made about you. This complaint was in relation to an ex-client who now resides at your address. During this discussion you confirmed that this was correct and that telephone numbers had been exchanged while client was an inpatient.
[41]
The letter confirmed there would be a more formal meeting.
An email of 24 July 2012 records that one of the care co-ordinators had a conversation with VXJ's father who was concerned for his daughter's safety as she had not had any recent contact with him. The information (second hand) was that VXJ was not discharged to her parent's address; she was staying with 'a friend'; she told her parents she was 'in love' with that friend. The 'friend' then approached the father and asked his permission to have a relationship with VXJ, which permission was given because he did not feel he could oppose it. The 'friend' was referred to as the man from ward 1G. The father spoke to his GP who told him to report the matter. It appears from the email that the effect was that VXJ was then upset that she was now 'homeless'.
An email of 1 August 2012 records further details of a conversation with the father who did not want to disclose the name of the nurse, nor jeopardise the daughter's relationship if it was a positive one, but felt that the relationship was 'not right'. Also provided was a letter from VXJ to her parents of 4 July 2012 referring to the person she was living with as 'Robert' and stating that she wanted to live her own life. She referred to her mental illness and being under 'undue stress'. The letter was signed as being 'from '[VXJ] and Rob'.
A meeting was held between the employer and the respondent on 19 July 2012. Transcript or notes were taken of the meeting. Mr Monteduro is recorded as having said at the interview:
[42]
[VXJ] has been staying for me for about a week. Prior to that when she was on the Ward, I think it was about the second to last day when she was discharged, there was some inquiries made on her behalf about attending a catholic parish to which I refer to through the hospital catholic Chaplain.... It then ended up being that we swapped our phone numbers and she rang me whilst I was on duty one weekend asking me to attend Mass on Sunday and she rang me and I said no I can't take you and she asked me to take her because there was some issue with the car and the father. I said I can't take you this weekend, how about the following weekend. By that time she was discharged. So, the following weekend I picked her up and met her parents and took her to Saint Martin's at Greenacres and we've been a couple of times together. That's how we more or less exchange phone numbers and the reason why.
[43]
He admitted they exchanged phone numbers whilst she was in hospital.
He said the family relationship was deteriorating and VXJ felt like harming herself, and 'I offered to her at the time that if she was having that much conflict at home and if she felt suicidal, I said I've got room here and if you want or you can stay with my mum. She offered to stay with me for a couple of days, so it's been a week....'
[44]
The interviewer put to the respondent a question about professional boundaries, eliciting the response:
[45]
It wasn't in an effort to do anything sinister... It was more along the lines of allowing her, because she's from interstate and doesn't know Adelaide too well and wanted to attend a Parish, so I offered because I'm catholic as well and it is obviously open to the general public so I gave her the address and phone number of the parish and she rang me and said she can't get there as she didn't have transport. She then rang me back on the proviso that if it would be possible for me to pick her up. At the time I refused because I was on duty and by that time she's been discharged. That's basically how things developed and started from there.
[46]
He was asked if he had found out that another nurse was staying with a female patient who had been discharged from the ward, what his reaction would be. He said 'yes, that would constitute as being serious... Basically because they're an inpatient and it goes against the Code of Conduct.'
The interviewer asked whether he was aware of that when he asked her to come to stay, and the respondent answered: well, I believe her mental state was one worthy of discharge. I mean, we're just friends. I didn't think it was anything of that sort of category.
At the time of the interview the patient was still living with him.
He then gave some answers about being friendly and polite.
He denied there was a sexual relationship.
[47]
As a consequence of the complaint the respondent was suspended from duty.
Further interviews with the employer took place on 27 July 2012, and 20 August 2012.
By letter of 2 August 2012 SA Health put allegations to the respondent in writing that:
[48]
This letter serves as a formal notification that an investigation will be undertaken regarding allegations of misconduct made against you. Specifically that you had an inappropriate relationship with a consumer who you met whilst under your care and was also under the care of the community mental health team during July 2012.
It is alleged that in having an inappropriate relationship with a consumer you have breached:
[49]
Australian Nursing and Midwifery Council "A Nurses guide to Professional Boundaries"
Australian Nursing and Midwifery Council "Code of Professional contact for Nursing in South Australia",
Department of Health and Ageing Respectful Behaviour Policy.
[50]
The letter advised that an investigation panel was appointed, and that an interview would take place with the respondent on 15 August 2012.
The Department of Health determined that there was prima facie misconduct which warranted further investigation. The investigation notes include, amongst other things, a view that whilst the respondent admitted back in July that VXJ was living with him, and said it was for about a week, that it was more likely that by then the period was 10 weeks cross referencing various letters and emails and suggesting that VXJ may have moved in within two weeks of discharge. The investigator was of the view that the suggestions of the respondent about just lending a helping hand were not consistent with either the father's comments about VXJ being in love with the respondent, and VXJ's letters to the parents. The investigator concluded that the complaint was substantiated, and that the findings are summarised as follows:
[51]
Based on the information provided within the preliminary interview, the investigatory interview, witness statements, emails and associated letters, the investigating offices are satisfied that on the balance of probabilities the allegation as stated is substantiated. The evidence available indicates that [the respondent]:
[52]
Exchanged personal telephone numbers with a consumer whilst in his care
Arranged to meet the consumer shortly after she was discharged for reasons outside of his professional responsibility
Engaged in an inappropriate relationship with certain consumer by allowing her to move into his family home
Is fully aware of the needs for professional boundaries in healthcare and his responsibility in that respect. However, showed little insight to the fact that he overstepped these boundaries.
Showed a clear lack of judgement in establishing and continuing the relationship.
[53]
It should be noted that there was no evidence to support the allegation by [VXJ]'s father that the relationship was of a sexual nature.
[54]
After considering the report the CEO of Northern Adelaide Local Health Network wrote to the respondent, advising that before she would decide whether the allegations are substantiated, that she would like to meet with Mr Monteduro.
A further interview took place on 1 May 2013.
By letter of 14 May 2013 the CEO of Northern Adelaide Local Health Network wrote to the respondent advising that she had found that the allegations were substantiated. She wrote that she was minded to terminate the respondent's employment, but would give him the opportunity to make further submissions.
[55]
An investigator from AHPRA (on behalf of the Nursing and Midwifery Board - a separate process to the employer's interviews) interviewed the applicant on 27 March 2013.
[56]
The interviewer described the purpose of the interview was to discuss the respondent's involvement with VXJ's care during her admission, and the events that led to her moving in with the respondent. The respondent said 'yeah, I'd like to clarify that she didn't move in at all'.
2. He admitted providing direct nursing care for VXJ whilst she was in the ward.
[57]
He said he gave her his phone number to help organise VXJ attending at a catholic parish, but said that this happened outside the ward.
[58]
He said he learned VXJ wanted to kill herself, and had nowhere else to go. He went on:
[59]
So we're getting back to this me, professional boundaries etc. You know I say yes, I did breach professional boundaries in the sense that I'm a health professional. But I was only socialising on a social level. And if this person hadn't been a former patient of Lyell McEwin and I wouldn't have been her nurse, naturally it could have happened to anyone else in the street at the time. I would have offered them in that sense of refuge and emergency shelter.... It was just like I said I, I did what I did was humanly possible along with the lines of a good Samaritan act.
I know and my colleagues there at the Lyell McEwin hospital and the Northern Mental Health Directorate, they said to me well you know what it looks like with the nurse says that they've got a patient living with me and that. And I am, I'm trying to say to them it's not what it appears to be. I know that you may look at it from a sinister point of view, but I was doing it from a catholic and Good Samaritan point of view.
[60]
He said she moved in the week he was interviewed back in July. He said he did not know where she was presently living.
He admitted phone numbers were exchanged on the ward.
He said he first picked her up outside of church.
He denied the relationship was a romantic or sexual one.
He denied saying to VXJ's father that he wanted a relationship with VXJ.
He tried to say the relationship was just being out of 'politeness' and no different to meeting someone and saying hello on the street, and was then asked how that fitted in with her moving in with him. He gave this answer:
[61]
Not with, not with the premise of staying in residing at my place, no. As I said there, as the situation had, on that day developed or spearheaded, spearheaded into that sort of situation and that's the mistake I did. I believe that the professional boundary, unintentionally that I, that I breached.
...but one needs to exercise an element of discretion and at the time I was spearheaded, like at that point in time it would've been negligent of me to turn my back and allow the girl to be run over as well. And I'd be the witness to stand around and why didn't I do anything and then they found out that I'm a nurse. You know I'm dammed if I do and dammed if I don't sir.
[62]
He said he had been a nurse 'unregulated' for 18 years and registered for 2 years. He said he had done some studies in mental health. He knew VXJ was in the ward after having attempted self-harm, and had serious mental health issues.
[63]
He was asked, rather than allowing her moving in, why he didn't call the police or have someone do a mental health assessment. He said that his son with him, and she moved to walk in front of a car on the street and tried to call an ambulance, but didn't because it looked like making her worse.
[64]
He admitted the first time he met her was whilst she was in care.
Prior to her moving in with him, he had picked her up from her house to take her to church, and met her parents. He said offering her to move in with him happened after church, maybe the second time, 'on the tail end of her self-harm'. He said she stayed 'a couple of days'. He said he told his team leader.
He said an intimate relationship would be unprofessional.
He didn't ensure she got mental health care whilst she stayed with him.
He was uncomfortable answering questions about getting permission from parents to enter a relationship.
He said he was only offering emergency accommodation and making clear she had to find another place.
[65]
AHPRA conducted another interview on 7 February 2014. The respondent had a support person present.
[66]
He was questioned about not disclosing to AHPRA that he had more than one mobile phone number. It was suggested that he had not told the truth about exchanging numbers only just prior to VXJ's discharge by reference to phone records showing calls back in April 2012. It was put to him that the calls were extensive. He was asked why he would exchange numbers with a patient. (BJ is the interviewer, RM is Robert Monteduro):
1. what's the purpose for giving you her number whilst she is a patient at the hospital?
2. Contact
3. For what?
4. A lot of people have phones, a lot of people text one another, they communicate with one another.
5. Okay, so there's been, on the first page there's been 11 messages. Do you want to add these up with me?
6. Yep.
7. Second page there is 28.
8. Mmmmmm.
9. Third page there is 21
10. Mmmhmmm
11. So 30, 59, 70, the 70 contacts. Next page there is 33 so there's 103.
12. Mmmhmmm
13. 132, 164, 208, 240, 273. 303 instances of you contacting, her contacting you.
14. Mmmhmmm
15. what before she was discharged from hospital.
16. Mmmhmmm
17. it's certainly not a casual exchange and only two days before she leaves so she can contact you about the parish is it?
18. I mean these must be texts.
2. He was asked about not just calls or texts from VXJ to the respondent, but also calls he made to VXJ. He suggested in his answers that his (15 year old) son could have been making the calls and SMS messages.
[67]
It was put that there were 330 calls whilst VXJ was still an inpatient. The respondent couldn't remember what the calls were about.
[68]
He was questioned about the assertions of VXJ's father that, prior to VXJ's discharge, the respondent had been driving VXJ around. Prior to the 'incident' leading to VXJ moving with the respondent (on his version), he admitted going around to meet VXJ's parents, but denied asking them for permission to enter into a relationship with VXJ.
2. After VXJ left the respondent's house he continued to have contact with her.
3. BJ suggested that after the earlier interview, VXJ called and gave the exact same version of events that RM had given as to there being very little contact, but that version was clearly false by reference to the phone records, and accordingly that RM and VXJ had conspired to give false answers.
4. BJ suggested there were 500 calls/texts between VXJ and RM whilst VXJ was in the ward. The respondent answered 'Well it's a bit excessive'. BJ suggested that VXJ was the main person he was communicating with, and that the phone records showed far less contact with his own son.
5. The investigator took possession of the respondent's phone for forensic analysis.
On 24 February 2014 VXJ's father spoke with BJ of AHPRA. He referred to Christmas cards being returned to him 'return to sender' but the handwriting was not VXJ's. He also said $80K had just been withdrawn from VXJ's account, and that he was aware that RM had a $80K mortgage.
AHPRA interviewed the respondent's former wife and the respondent's son SM on 24 February 2014.
[69]
SM described going to church and seeing VXJ walk across the street and nearly get run over.
2. He said that before the incident VXJ had been to the house a few times.
[70]
She stayed at the house after the incident, but SM wasn't sure for how long.
[71]
SM said he did not call VXJ on the phone.
2. SM said although the house had three rooms, one room had no bed, and that VXJ slept with Mr Monteduro, although SM didn't think they were boyfriend and girlfriend.
3. SM thought VXJ looked 'lost' 'like a puppy' and seemed to be fairly dependent on Mr Monteduro.
4. SM met VXJ's parents.
AHPRA interviewed VXJ on 24 November 2015.
She said she had been the victim of domestic violence and rape, and had obtained an intervention order from the police:
[72]
Okay. I decided to ring you because some important things had happened prior to ringing you that I thought was very important. I was the victim of domestic violence and rape, repeated rape over the last four years. I have, he's changed my medication slightly, lessened it. He's done things that, I have a dodgy address and let, I had to pay for a tenancy I never lived in, . rental of this place he encouraged me to buy some furniture, make it look as though I was living in it and I really wasn't living in it.
... What prompted me to ring yesterday was I had an intervention order done with RM in it.... He was put out on bail by the court... And today he's going to be in court for domestic violence. The next stage of it is that he will end up in court over alleged rape charges but he hasn't been charged for rape yet.
[73]
She described when they met in the ward and that Mr Monteduro let her know he was interested by eye contact, looking me up and down.
[74]
He held her hand in the ward 'inappropriately' and exchanged phone numbers.
They talked about personal matters on the lawned area outside the hospital.
When Mr Monteduro's shift would finish work he would take her 'off the ward' and to his car about a street away from the hospital to talk.
They did that so 'he wouldn't get caught' as he was scared of losing his job.
They also went to the library whilst she was still a patient.
In the hospital he kissed her three or four times saying to her that there were no cameras in the area.
They texted each other whilst in hospital a 'huge amount'.
They went to his place when she was still in hospital and kissed, but there was no sexual intercourse.
[75]
The exchange of numbers and kissing started in about April 2012, about three weeks after admission.
[76]
She said she was discharged to her parents place and then started to take clothes over to Mr Monteduro's place. She had an argument with her father. RM offered her to move in, and said 'its tricky I can't really offer you a place to stay because I'm a nurse and you're a patient', but said regardless of that he would like her to stay, and encouraged her to take her clothes over.
She loved him.
She said Mr Monteduro's place had two bedrooms and a study.
It was not true that she stayed eight days. She was there for three weeks after discharge, and then 'from then on I was with him... all the time'. She said Mr Monteduro tried to make it look like she had gone away 'to get the heat off his shoulders'. She stayed in a women's shelter at Catherine House for about a week, and then went back to Mr Monteduro's place.
She said the relationship was 'boyfriend and girlfriend' and sexual. They were not affectionate in public because Mr Monteduro was 'scared of getting caught.' They also were careful in front of his son as that would be inappropriate.
She thought they were girlfriend boyfriend from very early on in hospital. It was probably after discharge from hospital that they first had sex.
Mr Monteduro told VXJ about the interview he was having with AHPRA, and they discussed what questions were asked and what answers were given.
She said he told her that he would lie to 'save his butt'. She said it was a lie that she tried to commit suicide.
She said that when she called AHPRA in 2013 that Mr Monteduro was telling her what to say. He told her to call. She said that he told her to say that her father had abused her, but it was not true. She made the call because Mr Monteduro told her to. He didn't threaten her, she did the call willingly because she wanted to protect him.
[77]
VXJ rented a place at Modbury 'to get the heat off' Mr Monteduro.
[78]
She stopped seeing her psychiatrist of four years because Mr Monteduro didn't want her in hospital.
[79]
He reduced her medication, including by cutting the tablets into a quarter.
[80]
They lived together at Jervois from December 2013.
Mr Monteduro started verbal abuse and then started getting rough in sexual intercourse, and was told that he was hurting her during sex but he continued. This happened at least four times. He was physically abusive, and caused bruising.
[81]
AHPRA interviewed the applicant again on 22 March 2016.
[82]
Mr Monteduro said that he disagreed they were in a permanent relationship. He said he was her carer until the best part of 2015 and the relationship was one of business.
2. BJ put to him that was not consistent with his earlier interview when he said she stayed for eight days and that he hadn't heard from her since. His response was that their relationship was 'business' being going to church together, communicating together and 'we sometimes we'd share, co-sharing living arrangements. But as I said, it was purely a business relationship.'
[83]
VXJ and Mr Monteduro had a common superannuation fund.
[84]
When it was put to him that his own son has said that VXJ slept in the same room as Mr Monteduro, he said 'well I would have offered her the bed and I would have slept on the couch'. It was put to him that was inconsistent with his earlier interview. He responded 'I don't know. Look, if that was the case that I said that then I may have a misinterpreted what you asked' and suggested that he changed the room arrangements a couple of times.
2. He was asked whether he made up the suicide incident and said 'Yes. No I didn't, no..'
3. He agreed it was the case that he exchanged phone numbers with VXJ in mid-April 2012, well before the two days in discharge previously said in other interviews. His answers about the inconsistencies were evasive.
4. He admitted during the period VXJ was in hospital meeting her on the lawns in his breaks, but denied meeting in his car. He denied going to the library with her. He said that the father had made things up, and that he told his team leader made a record of that in VXJ's notes.
5. When asked about the assertion that VXJ got a flat at Modbury to give the impression of staying there but really was living with Mr Monteduro, he gave evasive answers before saying that VXJ was not staying at his place.
6. He denied that VXJ made a call to AHPRA with him present. When it was put that the call was made from his house, he said 'well I must have been out'. A note was prepared by RM to get a transcript of the call between VXJ and AHPRA. He could not really explain why the note was prepared other than to jog his memory.
7. He denied any sexual relationship. Later he refused to answer the question. He said he had the right to remain silent, and had criminal matters to process.
8. The following exchange took place about the answers that he became VXJ's carer, compared to the interview of 7 February 2014:
1. You said you hadn't heard from VXJ since she left your place and went to Catherine house. Here we are a bond in 2012 to 13 which for her own private premises and he went out and helped her. Did you not disclose, you didn't, I asked you whether you had any contact with her and you said you hadn't. And here we are you were telling me that you actually assisted her to move into this place in 2012. Okay. So you gave us false information when I spoke to you in 2014? Is that right?
2. I wouldn't say it's false, but you know you're saying to me if I have contact with her. But in the context of what? Before...
3. I said have you had any contact whatsoever.
4. We were talking about contact with VXJ. You were telling me that I... to monitor her... check to make sure she take medications and all that sort of thing.
[85]
You brought that up in previous interviews on that. And I mentioned, not in that context I didn't have contact with her in that context. There was phone contact, yes
[86]
I said I've only got your phone records up until June 2013 has there been any contact with you since then. You said probably not.
There you are, that's what I said.
So, here we are, January 13, July 12. And in your interview before that you said you hadn't had any contact with her since she left to go to Catherine house.
[87]
He denied reducing VXJ's medications. He did not want to answer questions about stopping her from going to her psychiatrist 'Got nothing to say to that'.
He denied preventing VXJ from going out of his house or the house at Jervois. He admitted residing at Jervois on occasions.
When asked about having a super fund together he said because its an option for people to roll their super into...it's a business relationship. But yeah personal as well...'
It was put to RM that he hadn't told the truth in February 2014 in the interview when he said he had no contact with VXJ, yet there were meetings of the super fund trustees showing they met together to make the super fund in November 2013. He denied that he had lied.
He was asked about a series of withdrawals from the super fund. He said there were meetings for the withdrawals, but not at the addresses listed.
He tried to justify earlier interview answers by saying his answers were in the context of an AHPRA investigation into 'professional boundaries' and these other events are all separate and 'what I've done outside of work is nothing to do with AHPRA'.
RM and VXJ gave each other birthday presents. He agreed that she told him that she loved him and he told her that he loved her but then said 'that's what friendship is all about'.
He denied asking VXJ to make him a beneficiary of her will.
He said he was co-mortgagee[or] for the Jervois property to help her buy the house.
[88]
He was asked if they lived together in 2013 and he said 'not officially'. Although he slept at the Jervois property it was 'on separate sofas'.
[89]
31. A neighbour, 'RN', who lived at Jervois, provided a statement to AHPRA in April 2017 stating that RM and VXJ were living together at Jervois, and that he assumed they were married, observed them come home together, garden together, hold hands, and that when RM described how they met, he said they met when he was her nurse and that he had taken care of her 'a little bit more than he should have'. He also said that in November 2015 VXJ came over to his house and alleged that she had been physically abused by RM. RN said he observed bruising on VXJ's body. His wife, PN also provided a statement saying that VXJ and RM were living together, they would always drive off together, and that in November 2015 she was told by VXJ that VXJ had been abused, and she saw bruising on VXJ's arms and shoulders.
[90]
VXJ provided a detailed written statement on 27 July 2017. She declared:
[91]
She was admitted to the Lyell McEwin hospital on 28 March 2012 to begin electro convulsive therapy.
2. During her stay at the hospital she came to know RM. She said he took a shine to her earlier on and looked at her in a sexual way. They slowly got to know each other. RM was actively involved in her care. He held her hands during the ECT sessions.
[92]
He said, early on "I really like you and if we play our cards right, we should be together". They had a discussion on the grounds at the hospital on lawn about how they could move forward in a relationship.
[93]
They discussed personal issues, including their relationship status. She had undergone a divorce and told him she had just come out of her marriage and received a payment from her divorce of $43,000 in cash and $130,000 in superannuation.
2. They exchange telephone numbers about a week or two or three after first meeting at the hospital. They started sending SMS messages a huge amount, 8 to 10 messages a day. They would message about how to meet, and RM said that he missed her.
3. Whilst still a patient at the hospital, RM suggested that they start to meet outside the hospital. RM said he was pretty scared about getting caught and did not want to lose his job. He said they needed to be very careful.
4. VXJ said they would often sit in his car which was about a street away from the hospital and talk. They drove to the library together. One day her father drove her to the library from the hospital and she told her father she would make her own way back. RM picked her up and took her to his place.
5. They kissed, but did not have sexual intercourse.
6. They kissed about four times or she was a patient at the hospital. He tried to find an area in the hospital between doors in a corner between one part of the ward in the corridor because he said there were no cameras there so they could kiss. Once he took her into a room where they did first aid and kissed after he had patched up a finger that she had cut.
7. VXJ was discharged from hospital on 3 May 2012. She initially moved back in with her parents and started taking her clothes over to RM's place. They would spend quite a lot of time together and speak on the phone often. They went to church together a couple of times, once with RM's son.
8. RM said words to the effect that the area outside the church was a good point and that they could tell anyone who asked that she wanted to commit suicide. She said that RM used that story to lie about what happened outside the church when he was interviewed by BJ. She said that BJ was told that she tried to jump in front of a car, but that this was untrue.
[94]
She said that she told her parents that RM and her were seeing each other as a couple. She had a fight with her parents, and her father tried to stop her from leaving. She said "I made the decision I wanted to be with RM and I love him at the time very much and just wanted to be with him."
[95]
RM had previously offered for her to move in with him full-time but said that it was tricky because he's her nurse and she's his patient. He said regardless of that that he would like her to stay and he encouraged her to bring over her belongings.
2. She said she never slept on the sofa or the couch and always slept with RM in his bed, except for less than a handful of occasions when she slept on the sofa in the living room because of RM's bad temper. She said they started having sexual intercourse shortly after she moved in.
3. The police attended on a couple of occasions pursuant to a missing persons report. RM said he was worried about the police attending because he was getting heat from the hospital. On 26 July 2012 she moved into Catherine House. She did not stay with a girlfriend. After leaving Catherine House on 29 July 2012 she moved back in with RM.
4. RM got her to rent a unit in Modbury. RM believed that if she had a different address to him there wouldn't be any questions asked. She had to pay for the tenancy, by way of a bond and rental payments. She said that RM even encouraged her to buy some furniture to make it look as though she was living there, and she changed her drivers license details, car registration and so forth to the Modbury address.
5. She said that the entire time she was living at RM's house in Ridgehaven. She said she was given strict instructions not to answer the door, not to answer the telephone, and not to go out of the house unless it was necessary. She said she stopped seeing her psychiatrist because RM did not want her in hospital having questions asked about their relationship. She said that RM reduced her medications.
6. She said that she called AHPRA in January 2013 and was told by RM what to say. She said he was stood right beside her listening and was whispering in her ear. She said that she was told to say that she only stayed with him for three or four days as an emergency shelter because she had to leave home. She said that was not true. She said she was told to say that she went to church, broke down hysterically and had anxiety and depression and was suicidal and almost walked in front of a car but RM stopped her. She said that RM told her to say that her father was abusive. She said it was a pack of lies. She said she did it to protect him.
7. She said that RM told her that he spoke with BJ on March 2013 and they discussed what was going to be said.
8. In June 2013 RM came home from work one day and said that she couldn't keep in contact with her parents because he had been suspended from the hospital because her dad had put in a complaint about him.
9. She said she assisted RM financially.
[96]
She said that in middle 2013 she decided to buy a place and a self-managed superannuation fund was set up. She said she was told that she did not have enough money for a self-managed superannuation fund and RM's accountants suggested that she set up a joint self-managed superannuation fund with RM.
[97]
She contributed $160,000 to the fund and RM contributed $80,000. The Jervois property was purchased in December 2013.
[98]
RM moved in with her at the Jervois property. He suggested the Jervois property be put in his name, and asked her to name him in her will. He was angry that she did not put the property into his name.
[99]
He cut her medication into smaller pieces than she was prescribed to take. He eventually took her off all her medications. This resulted in her having hallucinations and voices in her head. She said she became more reliant on RM.
2. She said RM insisted he become a paid carer for Centrelink purposes.
3. She said RM was manipulative, and that he's a danger to people and unsuitable to be a nurse.
4. She said he started to get physical, and that he assaulted her. The police were called. A statement was made to the police in November and December 2015. They are attached to her statement to AHPRA, and detail in some detail the allegations of assault and rape.
[100]
The police took photographs of her bruises. RM stopped living with her after that. On 23 November she called AHPRA.
[101]
She said RM made her change phones several times.
2. She said whilst they lived at Ridgehaven that RM told her to always say "now if they ask about me, just so you haven't seen me, you haven't had anything to do with me, you don't know what they're talking about". She said that RM would prep her before appointments.
3. They had a car crash and RM said not to tell the police because he didn't want them seen together.
4. Photographs of the bruises are attached to the statement.
[102]
RM was interviewed by police on 20 November 2015. He told police he was her carer. He admitted to there being arguing and that he was swearing. He said he tried to pull her to stop her leaving. He said he did an impulsive action because she was trying to abscond. He said that she used to live with a female friend at Salisbury but had moved to Jervois in 2013 and he went guarantor to help the purchaser go through. He said they were 'together in a business sense'. When asked whether they had a sexual relationship he told police 'Oh well you know I don't know what that's got to do with this'. He said 'there's been some affection there' and when pressed on whether there was a sexual relationship said 'well no, I don't know, have, whether this is pertinent to the alleged assault'. He said there was 'intimacy but it was respectful'.
RM was interviewed by police on 19 November 2016. He said they didn't live together. He said he stayed at her house, she stayed at his house, and that he was her carer for about 12 months, but they had known each other 'socially' for three years. In relation to the assault allegation he said she was trying to leave, and was agitated, and that he tried to restrain her from leaving.
[103]
The Code of Professional Conduct for Nurses in Australia
[104]
The Australian Nursing and Midwifery Council publishes a Code of Professional Conduct for Nurses in Australia.
It is supported by a Code of Ethics for Nurses in Australia.
The Code of Professional Conduct for Nurses in Australia sets out series of 'minimum standards' and provides a 'framework for legally and professionally accountable and responsible nursing practice'. Relevant parts of that Code include, amongst other things:
[105]
8. Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care.
[106]
The explanation for this statement is set out in a series of paragraphs that refer to the inherent power imbalance that exists between people receiving care and nurses that may make persons in their care vulnerable and open to exploitation.
Nurses should recognise that vulnerable people must be protected from sexual exploitation and physical harm.
[107]
Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for...
Nurses are aware that dual relationships may compromise care outcomes and always conduct professional relationships with the primary intent of benefit for the person receiving care....
Sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances. Such relationships automatically raise questions of integrity in relation to nurses exploiting the vulnerability of persons who are or who have been in their care. Consent is not an acceptable defence in the case of sexual or intimate behaviour within such relationships.
10. Nurses practice nursing reflectively and ethically.
...
A breach of the Code may constitute either professional misconduct or unprofessional conduct. For the purposes of this Code, professional misconduct refers to the "wrong, bad or erroneous conduct of a nurse outside of the domain of his or her practice; contact and befitting of a nurse" (e.g. sexual assault, theft, or drunk and disorderly conduct in a public place). Unprofessional conduct refers to "conduct that is contrary to the excepted and agreed standards of the profession" (e.g. breaching the principles of asepsis; violating confidentiality in the relationship between persons receiving care and nurses).
The nursing profession expects nurses will conduct themselves personally and professionally in a way that maintains public confidence in the profession. Nurses have a responsibility to the people to whom they provide care, society and each other to provide safe, quality and competent nursing care.
[108]
Section 5 of the National Law includes the following definitions:
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes -
[110]
The Tribunal is not bound by the rules of evidence - section 39 of the SACAT Act. While the Tribunal may inform itself in any way "it thinks fit", it should base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined: Sudath v HCCC[2012] NSWCA 171 at [75], Smith v Nursing and Midwifery Board of Australia[2013] NSWNMT 10 NSW at [18] and [19].
The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw(1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service[2010] NSWCA 106). Also see the discussion of the authorities in Health Care Complaints Commission v Smith[2015] NSWCATOD 85 at [131] to [134].
The Tribunal in assessing the evidence has taken into account that it has not had the benefit of seeing the witnesses in person. It has not acted on evidence in statements uncritically. For example it has taken into account that VXJ was in a relationship that has come to an end; there may be all sorts of reasons why one person in a relationship might not necessarily tell the truth; and has taken into account that VXJ's mental condition might give rise to risks of unreliability. However, the Tribunal has ultimately come to the conclusion that most (even though not all) the particulars of the Complaint are made out. It has taken into account evidence that corroborates VXJ's versions of events. It has also carefully analysed the explanations given by RM, and has noted the inconsistencies in those explanations, the occasions where those explanations have been contradicted by other evidence, and has taken into account the unsatisfactory nature of many of the explanations.
[111]
It is clear that RM was a nurse who carried out formal risk assessments of VXJ's mental state, and was directly involved in her care. It is clear that VXJ was in a position of vulnerability, and that RM knew that VXJ was vulnerable, suffered mental health illness, had a risk (even if low) of committing suicide and was potentially in need of ongoing hospital psychiatric care.
During the period of admission at LMH, RM and VXJ exchanged telephone numbers including RM's home landline number and mobile telephone number.
There are records indicating that during the period of admission there were some 250 calls from VXJ's mobile number to RM's mobile number, 25 to the land line, 6 from the respondent's landline to VXJ's mobile phone, and 16 from RM's mobile to VXJ's mobile.
Thus it can be seen that VXJ contacted RM more than he contacted her.
The precise details of each call are not known. Many could be text messages and the Tribunal does not have the text messages. Some could be missed calls. Some could be voice mail messages.
None of these calls are listed in the patient notes.
The Tribunal finds that it would be extremely rare for a nurse to give out a private number to a patient. The number of calls is inconsistent with the calls being of a professional nature. The communications are not consistent with maintenance by RM of a professional boundary between nurse and patient.
During the period of admission RM and VXJ discussed plans to be together. They kissed. They saw each other outside of the ward in this time, including in RM's car, the library, and the lawns.
The Tribunal finds that RM:
Acted contrary to the Code of Professional Conduct for Nurses in Australia;
Acted in a manner that amounts to Professional misconduct because:
It is conduct of itself that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;
It is conduct that in combination with the other matters the subject of findings below is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
[112]
In the period following discharge between 3 May 2012 and 29 July 2012 RM and VXJ continued to communicate extensively by telephone and text message.
Between May and June 2012 RM and VXJ attended church services together, and RM attended at VXJ's parents' house.
By July 2012 VXJ was living at RM's house.
VXJ was sleeping in RM's bed. The Tribunal rejects the explanations given RM that they slept in separate rooms having regard to both the evidence of RM's son and VXJ. There were only two bedrooms, and RM's son corroborated VXJ's version that RM and VXJ slept in the same bedroom.
In about July 2012 RM transferred for nominal consideration his Commodore sedan motor vehicle to VXJ.
From about July 2012 to January 2013 VXJ took a lease of a rental unit at Modbury, at RM's prompting. The Tribunal accepts that VXJ in fact continued to reside with RM, and the Modbury lease was designed to avoid RM's employer from knowing that VXJ was still living with RM.
VXJ continued to live with RM until November 2015.
Meetings took place between RM, VXJ, and RM's accountants in October 2012 and May 2013, leading to the creation of a joint Self-Managed Superannuation Fund ('SMSF'). The joint SMSF was created in November 2013.
In about May 2013 (notwithstanding a different date appearing in VXJ's statement) VXJ called AHPRA to relay a version of events, at RM's prompting, about their relationship which was untrue, including that she had only temporarily resided with RM shortly after discharge from the LMH admission, that they had not had a sexual relationship, had not seen each other since and that she was residing in Sydney.
In December 2013 VXJ purchased a property at Jervois, using funds from the SMSF as a deposit as well as borrowings.
RM lived with VXJ at the Jervois property.
In March 2015 RM represented to Centrelink that from 5 January 2014 he was VXJ's carer. The Centrelink claim form exaggerated the respondent's physical conditions and level of care provided to obtain a financial benefit to RM.
Although not explicitly averted to in the Complaint the Tribunal finds that during the period of cohabitation RM manipulated VXJ into not receiving ongoing psychiatric care.
[113]
The Tribunal finds that from at least July 2012 the relationship between RM and VXJ was a sexual one. They were sharing the same bed. They presented to others (for example the neighbours at Jervois) as a couple. VXJ's evidence as to sleeping arrangements was corroborated by RM's son.
For the same reasons as Grounds 1 and 2, the Tribunal finds that this amounted to professional misconduct.
[114]
The Tribunal is satisfied that the following explanations in the First AHPRA interview were false and misleading:
[115]
The explanation that the first exchange of telephone numbers took place just shortly before discharge. This is contradicted by the telephone records and by subsequent admissions. The Tribunal finds the explanation was given to downplay the true extent of the communications and hide the fact that a relationship had commenced.
2. That it was not until 15 July 2012 that VXJ moved into RM's house, and this was done as an act of kindness, and only subsisted for a short period of time. The Tribunal finds that VXJ had moved into RM's house earlier given that SAPOL attended at RM's house on 4 July 2012 and spoke with VXJ. The Tribunal finds that RM and VXJ in fact cohabited together from July 2012 until November 2015. The Tribunal finds that they moved in together to start a relationship and not 'as an act of kindness'.
[116]
That VXJ slept in the spare room. The Tribunal finds that VXJ and RM slept in the same bed. The 'spare room' was in fact not a bedroom and did not have a bed in it.
[117]
That there was no sexual relationship. The Tribunal finds to the contrary.
2. That RM had only one mobile number. The records, and later admissions, establish that there was a second phone number. The Tribunal rejects RM's explanation in later interviews that this was the son's phone, and rejects any suggestion that RM's son would have used the second phone to regularly contact VXJ.
The Tribunal is satisfied that RM owed a duty of candour and co-operation when being investigated by a regulatory body, and that this duty was breached.
The Tribunal is satisfied that the breach was wilful, and amounts to professional misconduct.
[118]
The Tribunal finds that the following matters were deliberately misleading at the Second Interview:
[119]
That he had not had contact with VXJ for a long time. The Tribunal finds that they were living together and accordingly had regular contact, and had also recently set up the joint SMSF together.
2. That the relationship was not a sexual one.
[120]
RM's explanation for the second mobile telephone number and not telling AHPRA about it at the First Interview was untruthful.
The Tribunal is satisfied that RM owed a duty of candour and co-operation when being investigated by a regulatory body, and that this duty was breached.
The Tribunal is satisfied that the breach was wilful, and amounts to professional misconduct.
[121]
The Tribunal finds that the following explanations at the Third Interview were misleading:
[122]
That RM spent a couple of nights a week at the Jervois property. RM spent most if not all nights there.
2. That the relationship between them was a 'business one'. It was clearly a domestic relationship.
[123]
That only occasionally did VXJ stay at his property before the purchase of the Jervois property, and there was no intimacy.
The Tribunal is satisfied that RM owed a duty of candour and co-operation when being investigated by a regulatory body, and that this duty was breached.
The Tribunal is satisfied that the breach was wilful, and amounts to professional misconduct.
[124]
196 - Decision by responsibletribunalabout registered health practitioner
(iii) the practitioner has behaved in a way that constitutes professional misconduct;
(iv) the practitioner has an impairment;
(v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.
(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -
(a) caution or reprimand the practitioner;
[125]
In considering the imposition of the appropriate penalty the Tribunal has considered a number of other decisions involving health professionals.[1] Each case is to be determined on its own facts.
The purpose of imposing disciplinary action on a health practitioner is to protect the public,[2] and may prevent practitioners who are unfit to practise from practising, secure the maintenance of professional standard, assure members of the public and the profession that appropriate standards are being maintained and that professional conduct will not be tolerated; bringing home to the practitioner the seriousness of their conduct; deterring the practitioner from any future departures from appropriate standards; deter other members of the profession who might be minded to act in a similar way; and impose restrictions on the practitioner's right to practise so as to ensure that the public is protected.
Of particular weight is:
[126]
The respondent appears to have little insight into the wrongfulness of his conduct. In interviews he appears to accept that it is inappropriate to have a relationship with a patient but tries to justify his conduct as being that of kindness. He has not accepted wrongdoing or shown contrition.
2. The mental health of VXJ may have been put at risk. She has said that he prevented her from seeing her usual treating psychiatrist and took over her medication. The relationship between VXJ and RM involved, on VXJ's evidence which we accept, aspects of controlling behaviour. That is in the context where a nurse has some position of authority over a patient.
[127]
The relationship began whilst there was a patient nurse relationship, in circumstances where VXJ was vulnerable.
[128]
RM actively sought to mislead investigators.
The Tribunal will make the following orders:
[129]
RM is reprimanded.
2. RM's registration as a nurse is cancelled.
[130]
Pursuant to s 196(4)(a) of the National Law RM is disqualified from applying for registration for ten years.
[131]
Pursuant to s 196(4)(b) of the National Law RM is prohibited from providing any health service for ten years.
The respondent seeks an order for costs.
Section 195 of the National Law provides that the responsible Tribunal may make any order about costs it considers appropriate for the proceedings.
At the Complainant was successful the Tribunal makes a further order that the Respondent pay the Complainant's costs of and incidental to these proceedings to be taxed or agreed.
[132]
The respondent is reprimanded.
The respondent's registration as a nurse is cancelled.
Pursuant to s 196(4)(a) of the National Law the respondent is disqualified from applying for registration for ten years.
Pursuant to s 196(4)(b) of the National Law the respondent is prohibited from providing any health service for ten years.
The respondent is to pay the Complainant's costs of and incidental to these proceedings to be taxed or agreed.
The Tribunal makes a further order under s 60 of the South Australian Civil and Administrative Tribunal Act 2013 prohibiting the publication of the names of, or any information tending to identify, the patient, notifiers or members of the public who provided evidence to the authorities or to this Tribunal in relation to the conduct of the respondent.
[133]
[1] Health Care Complaints Commission v Watson [2015] NSWCATOD 148 - kissing and cuddling of patient and relationship after discharge - disqualification for 18 months; Nursing and Midwifery Board of Australia v Buckby [2015] WASAT 19 - sexual relationship with two patients, cancellation and disqualification for 5 years for one patient, two for the other, 7 in total - Health Care Complaints Commission v Sullivan [2018] NSWCATOD 88 - sexual relationship, co-operation by respondent and candour in complaint - cancellation and disqualification for 18 months - Health Care Complaints Commission v Keegan [2018] NSWCATOD 3 - viewing sexually explicit photo, disqualification for 2 years - Marin v The Chiropractic Board of Australia (No 2) [2019] SADC 31 - chiropractor, inappropriate financial relationships with patients, disqualification for 10 years - Nursing and Midwifery Board of Australia v Willox (Review and Regulation) [2019] VCAT 1180 - various charges including threatening behaviour - disqualification for 8 years - Nursing and Midwifery Board of Australia v Sedgman (Review and Regulation) [2019] VCAT 1526 - relationship with patient - disqualification 5 years.
[134]
[2] E.g. Craig v Medical Board of South Australia79 SASR 245; Nursing and Midwifery Board of Australia v Rogers[2011] SAHPT 21; Papps v Medical Board of South Australia[2006] SASC 234.
Parties
Applicant/Plaintiff:
Nursing and Midwifery Board of Australia
Respondent/Defendant:
Monteduro [2020] SACAT 27
Legislation Cited (2)
Australian Civil and Administrative Tribunal Act 2013
Practitioner Regulation National Law (South Australia) Act 2010
Cases Cited (1)
(1983) 6 CLR 336
AI Analysis
Outcomeplaintiff
Disposition:
The complainant succeeded. The respondent was reprimanded; his nursing registration was cancelled; he was disqualified from applying for registration for ten years; he was prohibited from providing any health service for ten years; and he was ordered to pay the complainant's costs, to be taxed or agreed. A confidentiality order protected the identities of the patient, notifiers and members of the public who provided evidence.
(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
[Followed by a series of subparagraphs not relevant here].
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
In combination with the other matters referred to below is not consistent with RM being a fit and proper person to hold registration in the nursing profession.
The Tribunal finds that from shortly after the time of discharge from LMH to November 2015 that RM and VXJ were in a de facto relationship.
The relationship ended in November 2015.
The Tribunal does not make findings as to whether or not RM raped VXJ. There was, however, clearly a physical altercation at the end of the relationship which did result in bruising to VXJ.
The Tribunal finds that, given the proximity between the discharge from hospital and the cohabitation, the vulnerability of VXJ, and the fact that the relationship commenced whilst VXJ and RM were in a nurse patient relationship that RM:
Acted contrary to the Code of Professional Conduct for Nurses in Australia;
Acted in a manner that amounts to Professional misconduct because:
It is conduct of itself that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;
It is conduct that in combination with the other matters the subject of findings below is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
In combination with the other matters referred to below is not consistent with RM being a fit and proper person to hold registration in the nursing profession.
(b) impose a condition on the practitioner's registration, including, for example -
(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d) suspend the practitioner's registration for a specified period;
(e) cancel the practitioner's registration.
(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -
(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b) prohibit the person, either permanently or for a stated period, from -