5. At all material times, the Respondent was subject to the following professional standards (together professional standards):

4.1. the Board's Registered Nurse Standards for Practice in effect from 1 June 2016; > > 4.2. the Board's Code of Conduct for Nurses in effect from 1 March 2018 (Code of Conduct); and > > 4.3. the International Council of Nurses Code of Ethics for Nurses adopted by the Board in effect from 1 March 2018 to 9 November 2021 (2018 Code of Ethics) and as revised in November 2021 (2021 Code of Ethics). > > Notification, investigation and referral

6. The Board received two notifications relating to the Respondent's conduct on 11 May 2021 and 14 May 2021.
7. On 20 May 2021 and 24 May 2021, the Board decided to investigate the Respondent in relation to the notifications under s 160 of the National Law.
8. On 16 June 2021, the Board determined to take immediate action under s 156(1)(a) of the National Law by suspending the Respondent's registration.
9. On 3 February 2023, the Board determined to refer this matter to the Tribunal pursuant to s 193(1)(a)(i) of the National Law, having formed a reasonable belief that the Respondent has behaved in a way that constitutes professional misconduct.

Agreed Facts > > Ground 1 - Failure to maintain professional boundaries (Patient [UKA])

The Respondent failed to maintain professional boundaries by engaging in an inappropriate personal and/or intimate relationship with Patient [UKA] between on or about 1 March 2021 and on or about 14 May 2021.

Particulars of Ground 1 > > 9.1. The Respondent: > > 9.1.1. failed to appropriately respond to and report alleged inappropriate conduct by Patient [UKA] at [the clinic], including Patient [UKA] allegedly kissing her on or about 1 March 2021 and on or about 2 March 2021; > > 9.1.2. provided her mobile telephone number to Patient [UKA] other than for clinical purposes on or about 1 March 2021; > > 9.1.3. engaged in numerous inappropriate, personal and non-clinical text and WhatsApp communications with Patient [UKA]; > > 9.1.4. made and received numerous phone calls to and from Patient [UKA] for personal and non-clinical purposes; > > 9.1.5. disclosed to Patient [UKA] personal information and details, including that she was going through a divorce and owed her ex-husband $65,000.00; > > 9.1.6. attended Patient [UKA]'s home on approximately more than five occasions; > > 9.1.7. stayed overnight at Patient [UKA]'s home on at least one occasion and slept in Patient [UKA]'s bed; > > 9.1.8. transported Patient [UKA] to various places other than for clinical purposes, including to the vet, church and for shopping; > > 9.1.9. attended Patient [UKA]'s personal events, including [at] the home of Patient [UKA]'s parents; > > 9.1.10. asked Patient [UKA] for approximately $5,000.00;[3] > > 9.1.11. was offered money by Patient [UKA];[4] > > 9.1.12. accepted a gift of a bracelet from Patient [UKA] (later returning it); > > 9.1.13. failed to appropriately respond to and report inappropriate sexual contact with Patient [UKA] which occurred on at least one occasion on 6 May 2021. > > 10. The Respondent's conduct in Ground 1 was: > > 10.1. a failure to observe and/or maintain professional or appropriate boundaries with Patient [UKA] who was vulnerable on account of his mental health and other health conditions; and/or > > 10.2. a breach by the Respondent of the relationship of trust between the Respondent and Patient [UKA]; and/or > > 10.3. inconsistent with the professional standards including the: > > 10.3.1. Code of Conduct, in particular principles 4.1 and 4.5(c); and/or > > 10.3.2. Registered Nurse Standards for Practice, in particular standard 2.1; and/or > > 10.3.3. 2018 Code of Ethics, in particular clauses 1 and 2. > > Ground 2 - Failure to maintain professional boundaries (Patient [RAX])

The Respondent failed to maintain professional boundaries by engaging in an inappropriate personal relationship with Patient [RAX] between on or about 18 April 2021 and on or about 7 May 2021.

Particulars of Ground 2 > > 11.1. The Respondent: > > 11.1.1. provided her mobile telephone number to Patient [RAX] other than for clinical purposes on 18 April 2021; > > 11.1.2. made several phone calls to Patient [RAX] for personal and non-clinical purposes; > > 11.1.3. engaged in numerous inappropriate, personal and non-clinical text and WhatsApp communications with Patient [RAX]; and > > 11.1.4. disclosed to Patient [RAX] personal information and details, including in relation to her relationship with Patient [UKA]. > > 12. The Respondent's conduct in Ground 2 was: > > 12.1. a failure to observe and/or maintain professional or appropriate boundaries with Patient [RAX], who was vulnerable on account of her mental health; and/or > > 12.2. a breach by the Respondent of the relationship of trust between the Respondent and Patient [RAX]; and/or > > 12.3. inconsistent with the professional standards including the: > > 12.3.1. Code of Conduct, in particular principle 4.1; and/or > > 12.3.2. Registered Nurse Standards for Practice, in particular standard 2.1; and/or > > 12.3.3. 2018 Code of Ethics, in particular clauses 1 and 2. > > Ground 3 - Disclosure of confidential information

The Respondent inappropriately disclosed confidential information about two patients on or about 29 March 2021, on or about 27 April 2021 and on or about 7 May 2021.

Particulars of Ground 3 > > 13.1. On or about 29 March 2021, the Respondent disclosed confidential information about a patient '[JXO]' when she confirmed in a WhatsApp message to Patient [UKA] that she was caring for patient '[JXO]' on that date at [the clinic]. > > 13.2. On or about 27 April 2021: > > 13.2.1. the Respondent disclosed confidential information regarding Patient [UKA]'s admission and discharge from [the clinic] in WhatsApp messages to Patient [RAX]; > > 13.2.2. the Respondent sent to Patient [RAX] via WhatsApp two photographs which both include Patient [UKA]; and > > 13.2.3. the Respondent disclosed confidential information regarding Patient's [UKA]'s medication use in text messages to Patient [RAX]. > > 13.3. On or about 7 May 2021: > > 13.3.1. the Respondent disclosed confidential information regarding Patient [UKA]'s admission and discharge from [the clinic] in text messages to Patient [RAX]; and > > 13.3.2. the Respondent disclosed confidential information regarding Patient [UKA]'s medication use in text messages to Patient [RAX].

The Respondent's conduct in Ground 3 was inconsistent with the professional standards, including the:

14.1. Code of Conduct, in particular principles 3.5(a) and 4; and/or > > 14.2. Registered Nurse Standards for Practice, in particular standard 2.2; and/or > > 14.3. 2018 Code of Ethics, in particular clauses 1 and 2. > > Ground 4 - Failure to produce relevant information and providing false or misleading information > > 15. From on or about 2 March 2022 to on or about 6 September 2022, the Respondent: > > 15.1. failed without reasonable excuse to fully comply with a notice to produce information issued by an Australian Health Practitioner Regulation Agency (Ahpra) investigator as required by Clause 1 of Schedule 5 to the National Law; and > > 15.2. provided false and/or misleading information, and/or failed to provide relevant information so as to mislead, to Ahpra and/or the Board, including in response to a requirement to produce information issued under Clause 1 of Schedule 5 to the National Law. > > Particulars of Ground 4 > > 15.3. Pursuant to clause 2 of Schedule 5 to the National Law, a person required to give stated information to an investigator under clause 1 of Schedule 5 to the National Law must not fail, without reasonable excuse, to give the information as required by the notice. > > 15.4. On 23 February 2022, an Ahpra investigator issued the Respondent with a Notice to Produce Information to an Investigator (Notice to Produce) pursuant to Clause 1 of Schedule 5 to the National Law. The Notice to Produce required the Respondent to produce by 11 March 2022: > > 15.4.1. 'Copies of any and all written communication, including but not limited to, text messages, emails, social media exchanges (including Facebook Messenger, Snapchat, Instagram and WhatsApp), letters and notes between [the Respondent] and [Patient [UKA]], and between [the Respondent] and [Patient [RAX]]'; and > > 15.4.2. 'The name of the service provider for [the Respondent's] mobile phone during the period of 1 January 2021 until 1 July 2021 including the phone number attached to that service.' > > 15.5. In relation to the Notice to Produce with respect to the communications with Patient [UKA]: > > 15.5.1. on 4 March 2022 the Respondent produced WhatsApp messages that she had exchanged with Patient [UKA]; > > 15.5.2. on 6 September 2022, after a follow up request from the Ahpra investigator, the Respondent produced text messages that she had exchanged with Patient [UKA]; and > > 15.5.3. the text messages produced by the Respondent do not comprise all text messages exchanged between the Respondent and Patient [UKA]. > > 15.6. In relation to the Notice to Produce with respect to communications with Patient [RAX]: > > 15.6.1. on 2 March 2022 the Respondent produced text messages she exchanged with Patient [RAX]; > > 15.6.2. the Respondent failed to produce any WhatsApp messages exchanged with Patient [RAX]; > > 15.6.3. the text messages produced by the Respondent do not comprise all text messages exchanged between her and Patient [RAX]; > > 15.6.4. the text messages that were not produced are relevant to the nature of her relationship with Patient [UKA] and Patient [RAX] and > > 15.6.5. on 29 August 2022, the Respondent advised Ahpra that she does not keep all messages and often deletes messages 'to keep her inbox low'.

The Respondent's conduct in Ground 4 was inconsistent with the professional standards, including the:

16.1. Code of Conduct, in particular principles 1.2; and/or > > 16.2. 2021 Code of Ethics, in particular clauses 1 and 2. > > Characterisation > > 17. The parties jointly submit that: > > 17.1. the Respondent's conduct outlined in Grounds 1, 2 and 4 each constitute professional misconduct under paragraphs (a) and (c) of the definition of professional misconduct contained in s 5 of the National Law, and > > 17.2. the Respondent's conduct outlined in Ground 3 constitutes professional misconduct under paragraph (a) and/or (b) of the definition of professional misconduct contained in s 5 of the National Law. > > Sanction

The parties invite the Tribunal to make the following orders pursuant to ss 195 and 196(2) and (4) of the National Law:

18.1. the Respondent is reprimanded pursuant to s 196(2)(a) of the National Law; > > 18.2. the Respondent's registration is cancelled pursuant to s 196(2)(e) of the National Law; > > 18.3. the Respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months from the date of the Tribunal's orders pursuant to s 196(4)(a) of the National Law; > > 18.4. the Respondent is prohibited from providing any health service until the Respondent is re-registered, pursuant to s 196(4)(b)(i) of the National Law; and > > 18.5. the Respondent pay the Board's costs to be taxed in default of agreement, pursuant to s 195 of the National Law.

In addition to this Statement, the applicant tendered a Book of Documents[5] to which we have had regard. The material in this Book of Documents generally supports, but also adds to, the information contained in the Statement of Agreed Facts and Sanction. 17. We accept the agreed facts, admissions and acknowledgments contained in the Statement of Agreed Facts and Sanction. We make findings in accord with the contents of that document. 18. We note that the respondent was a mature person with many years of nursing experience in Australia and overseas. The evidence establishes that she was well aware of her ethical obligations with respect to the maintenance of appropriate boundaries. Her boundary transgressions in relation to both patients were highly unprofessional and serious. Both patients were vulnerable due to their mental health conditions. Both patients suffered serious adverse consequences from her actions. The potential for such consequences ought to have been obvious to the respondent at all times. 19. Not surprisingly, the boundary breaches led to serious breaches of confidentiality in relation to three patients. These breaches, in themselves, constitute serious professional misconduct. 20. We are satisfied on the evidence that the respondent exhibited a lack of honesty in selectively providing documents to AHPRA. We find that she sought to mislead the regulator as to the true nature of her relationships with the patients. 21. We find that each of the four allegations should be categorised as "professional misconduct" under paragraph (a) of the definition.[6] We agree that each of allegations 1, 2, and 4 also constitute "professional misconduct" under paragraph (c) of the definition in that they involve conduct inconsistent with the respondent being, at that time, a fit and proper person to hold registration. 22. The respondent has made admissions, acknowledged wrongdoing on her part, and demonstrated a degree of insight into her conduct. We take these matters into account, but we have reservations as to the depth of the respondent's insight and remorse. 23. We take into account that the respondent's registration has been suspended since 16 June 2021 as a result of immediate action taken by the Board. 24. Counsel for the applicant has provided a helpful outline of argument[7] which sets out the legal principles relevant to our consideration of this matter. These were not disputed by counsel for the respondent, and we adopt and apply those principles. The principles are well-known and understood and we will not repeat them here. 25. We should adopt the joint proposal of the parties unless there is good reason not to do so. We consider the joint proposal to be an appropriate outcome and we will impose the sanctions as suggested.

1. We have considered the power of the Tribunal under s 196 of the National Law to prohibit the respondent from providing any health service until she gains re-registration in a health profession. Section 196(4) relevantly provides:

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 do one or more of the following-

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period;

(b) prohibit the person, either permanently or for a stated period, from doing either or both of the following-

(i) providing any health service or a specified health service;

(ii) using any title or specified title .......

1. The drafting of this sub-section is somewhat curious. Paragraph (a) makes no reference to a "permanent" disqualification, strongly suggesting that such is not contemplated. The District Court of South Australia so held in Marin v The Chiropractic Board of Australia (Marin).[8] The Court held that disqualification must be for a "specified" finite period. There was no challenge to this in the subsequent appeal to the Full Court of the Supreme Court.
2. However, a prohibition order can clearly be permanent. As pointed out by this Tribunal in Chinese Medical Board of Australia v Zhou,[9] a person could be disqualified for a specified period but prohibited permanently from providing any health service. After the specified period has elapsed, the person could apply for registration but is still prohibited from providing a health service. We respectfully suggest that this is an issue on which legislative clarification would be helpful. The issue does not arise in this case.
3. The second observation concerning sub-section (4) is that paragraph (a) refers to "a specified period" whilst paragraph (b) refers to "a stated period". Normal principles of interpretation would suggest that these phrases were intended to have different meanings.
4. We are aware of cases in which this Tribunal and tribunals in other States have made orders prohibiting a person from providing a health service until the person is able to gain re-registration.[10] However, there are at least two cases in which the power to make such an order has been doubted.
5. In Chinese Medicine Board v Zhou[11] this Tribunal expressed the concern that the "lack of specificity" of the time period would likely offend against the language of the section, leading to the same error as occurred in Marin. The Tribunal suggested that the prohibition needed to be for a finite period and not be of indefinite or open-ended duration.
6. The Victorian Tribunal in NMBA v TFQ[12] agreed and held that the prohibition must be for a stated period or permanent.
7. In neither of these cases did the tribunal refer to the difference in wording, namely "specified period" and "stated period", and discuss the significance of that difference.
8. The issue was considered in detail in MBA v Piesse.[13] The Tribunal held that "a stated period" could be a period which is described with complete precision, albeit that it is not stated at that point of time by reference to exact dates. The Tribunal considered that it had power to prohibit until registration was obtained. It considered that this interpretation was more consistent with the statutory objectives.
9. We agree with the decision in Piesse. The difference in wording strongly suggests that the period does not have to be "specified" as was the case with the disqualification order in Marin. A period can be "stated" without specifying exact dates. It can be stated by reference to a future event, after which the period will end.
10. This interpretation is more consistent with the objectives of the National Law. It allows more adequately for the protection of the public. Otherwise, a person whose registration was cancelled could (after the prohibition period expired) provide health services to the public without ever demonstrating that their disqualifying characteristics had been addressed. Furthermore, it would be a strange outcome if a person could not be prohibited under paragraph (b) (ii) of subsection (4) from using a specified title until registration was regained.
11. Schedule 7 to the National Law contains provisions relating to interpretation. Clause 7 of that schedule provides:

(1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.

1. We consider that the Tribunal is empowered to make the prohibition order as requested and we do so.

1. The effect of our prohibition order will be that the respondent can no longer continue in her current employment as a care worker. We were asked by the respondent to consider postponing the effective date of our orders so that she can give notice to her employer. After consideration, we did not think that this course was appropriate. The respondent has been aware of the jointly proposed orders prior to this hearing. Our orders are effective immediately.

1. We decide that the respondent has behaved in a way that constitutes professional misconduct. We deal with the misconduct in a global way.
2. We impose the following disciplinary action:

(a) The respondent is reprimanded.

(b) The registration of the respondent is cancelled.

(c) The respondent is disqualified from applying for registration as a registered health practitioner for a period of 12 months from the date of this order.

(d) The respondent is prohibited from providing any health service until the respondent is re-registered in a health profession under the National Law.

1. The respondent must pay the costs of the Board to be agreed or, in default of agreement, to be taxed.

1. The Tribunal has prohibited the publication of the names of, or any material tending to identify, the patients referred to in the complaint.

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

[3] We note that money was not provided by Patient UKA to the respondent.

[7] Outline of Argument filed 15 February 2024.

[8] [2019] SADC 17.

[9] [2020] SACAT 23, at para [113].

1. [10] For example, Psychological BA v Ferrero [2019] VCAT 1648, Chiropractic BA v Ebtash [2020] WASAT 86.

[12] [2021] VCAT 1176 at [76].

[13] [2022] VCAT 82 at [161]- [180].