• The respondent's conduct constitutes very serious professional misconduct, and the Tribunal reprimands the respondent in the strongest possible terms.
• It was not until proceedings were instituted in the Tribunal and the weight of evidence became apparent that the respondent finally admitted the matters alleged.
• The respondent is not a fit and proper person to be registered at the present time.

Health practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional misconduct - Failure to maintain appropriate professional boundaries with a patient, inappropriate access to patient records and false and misleading statements to authorities - Reprimand, disqualified from applying for registration for two years

Administrative tribunals - Procedure - Statutory powers - Order for costs - Costs to be agreed or fixed by the Tribunal

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) ss 5, 193

Marin v Chiropractic Board of Australia [2020] SASCFC 74

Mr S Hurburgh and Mr G Mitchell, Minter Ellison, for the complainant

Ms G Hannon and Ms L Thomas, Union Legal, for the respondent

There is no restriction as to publication of the information contained in this report. The Tribunal has prohibited publication of any information contained in the documents and evidence before the Tribunal, save and except for the information contained in this report.

1. Angela Shepherd (the respondent) formerly held registration as a registered nurse.

2. Allegations of professional misconduct against Ms Shepherd have been referred to the Tribunal by the Nursing and Midwifery Board of Australia (the Board) under s 193 of the Health Practitioner Regulation National Law (South Australia) (the National Law). The National Law is to be found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the Act).

(a) Engaged, over a period of about four years, in an inappropriate personal relationship with a vulnerable mental health patient;

(b) Improperly accessed the patient's medical records; and

(c) Provided false and misleading information to the Board and to the Australian Health Practitioner Regulation Agency (Ahpra).

4. The respondent admits that the allegations in the complaint are true and that her conduct constitutes professional misconduct.[1] Both parties propose that the respondent be reprimanded and that she be disqualified from applying for registration as a health practitioner for a period of two years. The Tribunal must independently consider whether this is an appropriate disciplinary response.

5. The respondent was first registered in Australia on 9 February 2009 and at the time of the misconduct worked as a mental health nurse at Lyell McEwin Hospital (the Hospital). Her misconduct was first reported to the Hospital and notified to Ahpra in September 2018.

6. The respondent was suspended by her employer on 13 September 2018 and has not practised as a nurse since that time.

7. She gave an undertaking to the Board on 24 September 2018 that she would not work other than for SA Health. As she had been suspended by SA Health, this was effectively an undertaking not to work. The respondent subsequently resigned from her position with SA Health.

8. The respondent's registration lapsed on 2 July 2020 and she has been unregistered since that date.

9. The parties provided a Statement of Agreed Facts[2] which, in reference to the circumstances of the misconduct, included the following:

Failure to maintain appropriate professional boundaries with a patient

12. Between August 2014 and September 2018, the Respondent failed to maintain professional boundaries by establishing and continuing an intimate personal relationship with a male patient (the Patient) immediately after the time that he was a patient under her professional care.

Particulars

12.1 At all material times, the Respondent was employed as a nurse at the Lyell McEwin Hospital (LMH), located at Elizabeth Vale in South Australia.

12.2 From 20 August to 17 September 2014 the Patient was admitted as an inpatient of the LMH in Ward 1G.

12.3 The Patient was vulnerable by reason of suffering from mental illness including chronic depression.

12.4 During the Patient's admission to the LMH in August and September 2014, the Respondent was allocated to the Patient's bed on 16 occasions and the Respondent attended on the Patient for the purpose of providing nursing care and treatment on no less than 21 occasions including on the following dates: 20 August 2014, 23 August 2014, 24 August 2014, 25 August 2014, 27 August 2014, 28 August 2014, 29 August 2014, 1 September 2014, 2 September 2014, 3 September 2014, 5 September 2014, 6 September 2014, 7 September 2014, 8 September 2014, 11 September 2014, 12 September 2014, 16 September 2014 and 17 September 2014.

12.5 Following the Patient's discharge from Ward 1G at the LMH the Respondent was in contact with the Patient outside of the therapeutic relationship.

12.6 In or about November 2014 (the specific date is not known to the Board) the Patient began residing at the Respondent's home.

12.7 The Patient continued residing at the Respondent's home until about September 2018.

12.8 In or about November 2014 the Respondent commenced an intimate personal relationship with the Patient.

12.9 During the period that the Patient resided at the Respondent's home, the Respondent continued an intimate personal relationship with the Patient.

12.10 The intimate personal relationship between the Respondent and the Patient lasted for approximately four years.

12.11 On no less than two occasions in the course of their intimate personal relationship, and during the period that the Patient resided at the Respondent's home, the Respondent engaged in sexual intercourse with the Patient.

Accessing confidential patient records without clinical justification

13. Between 4.30pm on 20 September 2014 and 11.51am 21 September 2014, the Respondent accessed the electronic medical records of the Patient on the Community Based Information System (CBIS) maintained by SA Health without a clinical reason to do so.

Particulars

13.1 The Patient was discharged from Ward 1G of the LMH on 17 September 2014.

13.2 The Respondent accessed the Patient's medical record on the CBIS on no less than two occasions between 4.30pm on 20 September 2014 and 11.51am 21 September 2014 and viewed about 14 records relating to the Patient, without any clinical reason for doing so.

Misleading conduct towards Ahpra

14. The Respondent failed to co-operate and disclose particular information when requested to do so to the Board and Ahpra. The Respondent provided the Board and Ahpra with false or misleading information.

Particulars

14.1 By letter dated 10 January 2019, the Board invited the Respondent to provide a response to its investigation in relation to issues including whether the Respondent maintained appropriate professional boundaries with the Patient.

14.2 On 29 January 2019 the Respondent provided a written response to Ahpra in which she stated, amongst other things, that:

(a) she did not ever commence or continue an intimate personal relationship with the Patient;

(b) the Patient lived at her home between November 2014 and September 2018 as a 'lodger', and the Patient paid rent pursuant to an informal arrangement;

(c) at the time that the Respondent invited the Patient to live at her home, she did not recall or otherwise know that he had been an inpatient at the LMH Ward 1 G and that she had provided nursing care and treatment to him while he was an inpatient;

(d) on two occasions she had regretfully engaged in a 'sexual encounter' with the Patient during the period that he resided at her home.

14.3 On 6 June 2019 the Respondent participated in an interview with Ahpra in which she made statements consistent with those aspects of her written response as set out at paragraph 14.2 above.

14.4 The Respondent's written response and statements at interview were false and misleading because in fact she did commence and continue an intimate personal relationship with the Patient.

10. The parties also provided an agreed Book of Documents which we designate as exhibit C1. This material provides further evidence about the relevant conduct.

11. We make findings in accordance with the Statement of Agreed Facts and the other evidence before us. We indicate that we accept the uncontested evidence of the patient's son which appears in the Book of Documents.[3] That evidence provides important detail about the nature of the respondent's relationship with the patient. Our findings can be summarised as follows.

12. At the time of the patient's admission to the Hospital between 20 August and 17 September 2014, the patient was an extremely vulnerable mental health patient. He had a long history of difficulties. For privacy reasons, we do not set out details of his medical condition, but they are well documented in the evidence. He was very unwell.

13. The patient's vulnerability was well known to the respondent who nursed him frequently during the admission. She counselled him extensively and he obviously trusted her with intimate details about his life and mental state. The respondent abused this trust and took advantage of the patient's vulnerability for her own personal gratification.

14. After his discharge, the respondent accessed the patient's medical records without proper cause. We find that she did so to obtain his contact details. Her purpose was to contact him in the hope of pursuing a personal relationship.

15. She did contact him and pursued a relationship. By November 2014 the respondent had persuaded the patient to move into her home. We accept that he did so with some reluctance as it would involve giving up his rental house for which he received rental assistance through Anglicare.

16. Thereafter, until about September 2018, the patient lived with the respondent in a de facto relationship. It was an intimate personal relationship. It included sexual intercourse.[4] The respondent then terminated the relationship, causing extreme distress and mental anguish to the patient.

17. The respondent was fearful during the relationship that the situation would become known to her employer and her misconduct would be revealed. She insisted on secrecy and did not tell anyone at work the name of her partner. This secrecy inevitably acted as a constraint which discouraged the patient returning for further treatment at the Hospital. The patient was also frustrated by the secrecy as he felt that it damaged his self-perception of the relationship.

18. We find that the respondent instigated and entered into this relationship without any due regard for her professional responsibilities, the patient's vulnerability, or the potential for serious harm that might be caused. Her actions were selfish and irresponsible, and totally inconsistent with the professional standards required of a registered nurse.

19. When her misconduct came to the attention of the regulatory authorities (the Board and Ahpra), she falsely denied what had occurred. In a response dated 29 January 2019,[5] the respondent claimed to have met the patient by chance after his discharge from Hospital. She claimed that she did not realize he was a former patient. She asserted that arrangements were made for him to rent a room in her house, as nothing more than a lodger. After he had been at the house for some time, he advised her that he had been a patient at the Hospital, but she still could not recall him. She had conversations about him moving out, but he became very emotional and threatened to tell the Hospital that they were in a romantic relationship. Thus, she agreed that he could continue renting a room. The respondent admitted that they "became friends" over the four-year period but denied that they were in a relationship. She stated: "I regret that on two separate occasions I engaged in a sexual encounter with [the patient]. This occurred very early on during the time that he rented a room in my house and it was during a time that I was highly emotionally vulnerable due to the break-up of my 17-year marriage. However, I refute the claim that we were in a relationship or that we lived as partners. I never considered him to be my romantic partner." She sought leniency on the basis that her described conduct was a "lapse of judgement".

20. This response was fundamentally false. It was a dishonest attempt to mislead the regulatory authorities and to avoid responsibility for her actual conduct. Essentially the same account was repeated by the respondent in an interview with Ahpra on 6 June 2019.[6] It was not until proceedings were instituted in the Tribunal and the weight of evidence became apparent that the respondent finally admitted the matters alleged.

21. We find that the respondent has behaved in a way that constitutes professional misconduct.

22. The misconduct is very serious, and we reprimand the respondent in the strongest possible terms.

24. The parties both submit that a disqualification for a period of 2 years should be imposed.

25. The Tribunal notes that the respondent has not practised since 13 September 2018. We have regard to that circumstance.

26. The conduct was inconsistent with the respondent being a fit and proper person to be registered. The relationship between a mental health nurse and a patient involves a high degree of trust. This was a calculated and sustained breach of that trust in the case of a very vulnerable patient. The potential for harm was high. Furthermore, it is essential that practitioners exhibit honesty in their dealings with the regulatory authorities. The failure to do so in this case is indicative of a serious defect of character.

27. The admissions now made and the acceptance by the respondent that a substantial disqualification is warranted may indicate a degree of insight. However, the respondent has not in any more specific way demonstrated insight into the wrongfulness of her actions or the potential for them to cause harm to the patient. She has expressed no regret or contrition for the effects of her actions on the patient or for her dishonesty in dealing with the regulatory authorities. There is no evidence that would persuade us that the underlying character flaws have been addressed or that reformation has occurred. We have no confidence that the respondent is a fit and proper person to be registered at the present time.

28. Furthermore, there is a need to assure the public that standards within the profession will be maintained and that vulnerable patients will be protected.

29. This respondent, as well as other practitioners, must understand that conduct of this nature will not be tolerated and will be met with serious consequences.[7]

30. In all of these circumstances and having regard to the time already spent out of practice, we agree that it is necessary and appropriate to impose a period of disqualification of two years from the date of this order. We make it clear that the respondent will not be automatically reinstated after that period of two years. That is the period after which she will be entitled to apply for registration. She will not be registered until she can satisfy the Board that she is a fit and proper person to be registered. She will need to demonstrate a proper understanding of ethical requirements and satisfy the Board that she can be trusted to practise in an ethical manner.

31. Finally, the complainant applies for an order for costs. The respondent submits that she is unable, due to financial hardship, to contribute to costs. Impecuniosity is not a relevant factor in the exercise of the Tribunal's discretion. There is no reason to deprive the successful complainant of its costs. There will be an order for costs to be agreed or fixed by the Tribunal.

32. Having regard to the findings suggested in the agreed Minutes of Order filed by the parties (which we regard as appropriate), our formal orders will be as follows:

(a) The Tribunal decides that the respondent's conduct with respect to allegation 1 in the complaint (relationship with the patient) constitutes professional misconduct within the meaning of both paragraphs (a) and (c) of the definition of "professional misconduct" in s 5 of the National Law.

(b) The Tribunal decides that the respondent's conduct with respect to allegation 2 in the complaint (inappropriately accessing medical records) constitutes professional misconduct within the meaning of paragraph (a) of the definition of "professional misconduct" in s 5 of the National Law.

(c) The Tribunal decides that the respondent's conduct in relation to allegation 3 in the complaint (providing misleading information to the regulatory authorities) constitutes professional misconduct within the meaning of both paragraphs (a) and (c) of the definition of "professional misconduct" in s 5 of the National Law.

(d) The respondent is reprimanded in the strongest possible terms for her professional misconduct.

(e) The respondent is disqualified from applying for registration as a registered health practitioner for a period of two years from the date of this order.

(f) The respondent is to pay the complainant's costs of the proceedings to be agreed or fixed by the Tribunal.

[1] See Agreed Minutes of Order attached to the Complainant's Outline of Argument; Respondent's Outline of Argument paragraph 3.

[4] Insofar as the Statement of Agreed Facts refers to "no less than two occasions", that is no more than a reference to specific admissions made by the respondent and is likely to be no indication at all of the frequency.

[7] Marin v Chiropractic Board of Australia [2020] SASCFC 74 at [73].