RJT v Nurses' Board of Victoria [2000] VSC 498

5. This is the charge levied by the Nurses' Board of Victoria, the defendant ("NBV") against RJT, a male psychiatric nurse, pursuant to the Nurses' Act 1993 s.66 ("the Act"). The NBV has determined pursuant to the Act s.23, that a formal hearing should be held into RJT's professional conduct, arising out of the sexual relationship. It is to be noticed there is no allegation of either actual, or potential, harm having been suffered by the former patient. Rather as the facts subsequently stated establish, she initiated, enjoyed and probably terminated the liaison.

8. RJT has issued an originating motion seeking to quash the decision of the NBV to conduct a formal hearing, a declaration that the matter before the Board does not constitute a complaint which concerns the professional conduct of the nurse within the provisions of the Act s.22(1), and injunctions restraining the NBV from continuing further.

13. On 21 May 1995 Mrs B was admitted into the Mother-Baby Unit of the M hospital suffering from post-natal depression arising from the birth of her daughter on 2 April. She had suffered previous episodes of mental distress which had required medical psychiatric assistance. However, she was nursed by "RJT" at the M hospital where he was one of the attending psychiatric nurses. Due to the restricted number of patients and the more intensive care given to such patients, inevitably close exposure of patient to staff is experienced at these units. The nursing notes indicate that RJT referred to Mrs B's complaints about her marital relationship.

16. On 7 July 1995, Mrs B was discharged from the unit although she remained an out-patient and on two occasions as a day patient up until 1 October 1995. Thereafter the M Hospital heard nothing of her.

19. RJT had no contact with Mrs B for three years and two months, until the school holidays of September 1998. She had telephoned the M Hospital asking to speak with him. She was told he was at the D Hospital, she then telephoned him there. She suggested they meet for coffee. They arranged to do so.

22. On 1 October 1998 and on or about three subsequent occasions shortly thereafter, RJT engaged in sexual congress with Mrs B, at her home and as a result of her invitation. Mrs B in discussion with her psychiatrist and in a unposted letter she wrote to RJT indicates how pleasurable this congress was. Both of these documents were before the NBV.

25. There is some confusion as to who brought the liaison to an end. Mrs B now expresses some dissatisfaction with some of RJT's, S and M fantasies.

28. On 12 March 1999, Mrs B made a 41 minute telephone call to R wherein termination of the affair was confirmed. The invoice for this phone call appeared on Mr and Mrs B's domestic phone account. Because it was so expensive Mr B checked the number and this alerted Mr B to the fact there had been some contact between his wife and RJT. He taxed her about it. On 13 April 1999 Mr B "discovered" or "found" the unposted letter Mrs B had written to RJT. The letter is explicit, ribald and passionate. After expression of raunchy desire and satisfaction with RJT's performance, it goes on to detail some dissatisfactions with his fantasies and then details unfortunate episodes of her own life. The letter is lucid and sequential, it is not disordered. The letter was located within the matrimonial home in a place where it was not difficult to find. Mr B did find it, and this brought the already difficult matrimonial relationship to an end.

31. On 3 May 1999, Mr B wrote to the NBV raising the matters of the affair in which he refers to the conduct of RJT as "fit to be described as immoral and unprofessional behaviour as a psychiatric nurse". He stated that after finding the letter he and his wife have both filed for "Separation" (whatever that may mean). The marriage is certainly now at an end.

34. On 11 June 1999, a phone conversation occurred between Mrs B and an investigator appointed by the NBV into Mr B's complaint. The diary note says, "She stated that she had had an affair with RJT, he had never been her nurse and the affair was over. Mrs B stated that she did not wish to get involved ... as there was still a possibility of reconciliation with her husband".

37. On 28 June 1999, the NBV investigator conducted an interview with Mr B. She noted that Mr B, "When asked if his wife knew of the complaint he had made to the Board, Mr B acknowledged that she knew that he had telephoned the Board. He stated that he hadn't told her he had put the complaint in writing. Mr B said that Mrs B wants to get back at [RJT] and that she has informed his wife (i.e. RJT's wife) of the affair".

40. On 19 June 1999, the NBV advised RJT's solicitors that a report concerning him was to be made to the Board. That was done on 22 June where the Board made the determination to hold a formal hearing into his professional conduct.

43. On 2 March 2000, Mrs B signed a statement which recites, inter alia: (1) I am currently married to Mr B whose complaint is the subject of the above investigation. He made the complaint without my knowledge or consent. We are now separated. Although I saw nothing of RJT from the time I left the unit (7 July 1995) until I contacted him last year (September 1998) I always remembered him because I quite liked him ... In particular I was unhappy in my marriage. During the September school holidays in 1998 I telephoned the M Hospital to speak with RJT. I found he was now working at D Hospital so I telephoned him there and spoke to him suggesting that we meet for a coffee ... I agree I wrote the letter which Mr B has sent to the NBV ... During my relationship with RJT, I was aware that he was married and he knew that I was married and still living with my husband and daughter ... When Mr B became aware of my relationship with RJT, the relationship had already finished ... In my view RJT was a good psychiatric nurse so far as nursing went however I don't believe he should be working with female patients."

46. At the time of the liaison Mrs B was 37, and R 43.

49. The Board later informed RJT of the documents it had in its possession when it made the decision to charge him. The list did not include Mrs B's statement.

52. Although there is no formal decision by the NBV before the Court, and this may be because it is RJT's motion not the NBV's, it is apparent the Board must have decided Mr B's complaint was neither frivolous or vexatious and proper to investigate.

57. The Act recites its purpose as being "the protection of the public by providing for the registration of nurses and the investigation into the professional conduct and fitness to practice of registered nurses". To fulfil those purposes it established the NBV, which is charged with the investigation of complaints about registered nurses. Part 3 of the Act bifurcates an investigative procedure into informal and formal parts. It is the formal part which the Board seeks to pursue in this case.

"20. Complaints about nurses A person may make a complaint about a registered nurse to the Board."

64. I observe this provision facilitates the investigative procedures and activates the powers of the Board by allowing any person, without regard to qualifications, to make a "complaint" about a registered nurse. That is what Mr B has done. His complaint has enlivened the interest of the Board. I note that the NBV's objectivity is to investigate "professional conduct" not just any conduct.

67. It is s.22 which dictates what the Board may do upon receipt of a complaint. Here only sub-sections (1) and (2) are relevant. They read:

"22. When complaints about professional conduct are to be investigated by the Board (1) The Board must investigate a complaint if the complaints concerns the professional conduct of a registered nurse and if the complaint is not to be dealt with by the Health Services Commissioner under section 31 or the Board has not determined the complaint to be frivolous or vexatious. (2) In order to determine whether or not it is necessary to conduct a formal or informal hearing into a complaint, the Board must conduct a preliminary investigation into the complaint. (3) ... "

71. It is necessary to reiterate that the Board's obligation to investigate a complaint is only enlivened if the complaint "concerns the professional conduct" of a registered nurse.

74. Sub-section (2) is facilitative in so far as once a complaint has been received the Board must then (1) conclude that it concerns the professional conduct of a registered nurse and/or (2) is not to be dealt with by the Health Services Commissioner and (3) that it is neither frivolous nor vexatious. Having done so it may proceed, pursuant to sub-s.(2)(ii) - (1) to decide whether it is necessary to conduct a formal or informal hearing.

77. Section 23 dictates the procedure to be follow pursuant to the preliminary investigation. It reads -

"23. Outcome of preliminary investigation (1) Upon completing a preliminary investigation, the person conducting the investigation may make one of the following recommendations - (a) that the investigation into the matter should not proceed further; or (b) that an informal or formal hearing should be held into the matter. (2) The Board must determine whether or not to act on the recommendations of the person conducting the preliminary investigation."

81. The provision bifurcates the role of the person conducting the investigation on behalf of the Board. That person may (a) make a recommendation the matter should not proceed or, (b) make a recommendation that (1) informal or (2) formal hearings be held. The Board, however, pursuant to sub-s.(2), must itself determine whether it will act on the recommendations or otherwise.

84. This is the juncture reached here. The Board received a complaint from Mr B. Although there is no evidence of a formal finding being made by the NBV that it must have regarded the complaint as relating to "the professional conduct of a registered nurse", because it then proceeded to exercise its powers and functions under s.23. It must have authorised the completion of a preliminary investigation and then accepted the recommendation of the investigating officer to proceed to a hearing of that complaint on its merits. The laying of its charge against RJT can be assumed to have been done regularly, so that I can presume the predicates upon which it was based to have been satisfied.

87. The Act s.3 does not define professional conduct but it does define "unprofessional conduct". The provision reads -

"3. Definitions ... 'unprofessional conduct' means all or any of the following - (a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered nurse; or (b) professional misconduct; or (c) a finding of guilt of - ... " (not relevant here).

91. The phrase "professional conduct of a registered nurse" also appears in ss.24, 25(1)(a) and (b), 37 and 48. None of these further references to the phrase bring any further light upon its meaning.

94. I observe that the Board is obliged under s.22 to investigate a complaint of professional conduct and not unprofessional conduct. In so far as the negative defines the positive the professional conduct the Board is obliged (a) to investigate, is that conduct which is performed professionally, which might be of a professional standard less than that which the public might reasonably expect, or (b) conduct which amounts to professional misconduct.

99. Mr Hurley of counsel appearing for RJT submitted that there was no material before the court which led to the conclusion that a preliminary investigation had been conducted and accordingly the Board's procedure now must seem to be fatally flawed. Nothing was produced to substantiate that contention. No other conclusion is possible other than the Board did conclude Mr B's complaint related to professional conduct and that it authorised the appointment of the investigating officer and proceeded to accept that person's recommendations to proceed to a hearing.

102. Mr Hurley contends that the complaint made by Mr B does not and cannot relate to the professional conduct of RJT. If anything it relates to the personal conduct of his estranged wife, and RJT, who happens to be a registered nurse.

105. Therefore, the Board is about to embark upon an inquiry into matters over which it has no jurisdiction. Rather than waiting until the inquiry proceeds and exercising rights of appeal under the VCAT legislation, the court so it is argued should in its supervisory jurisdiction bring the matter to an end now and grant the relief sought. It was not contended this court lacked the jurisdiction to do. I am satisfied the court has the jurisdiction to intrude pursuant to O.56.

110. Mr Robinson for the Board contended that the phrase "professional conduct" in s.3 includes any act or omission or matter which could or might, if the facts were established, sustain a finding of unprofessional conduct. He contends that the allegations put forward here do exactly that, that is, the engagement in consensual sexual conduct by a psychiatric nurse, with a former patient whom he knew to be married amounted to professional misconduct by a registered nurse.

113. He contended that if any unprofessional conduct occurred, even following the cessation of the nurse/patient relationship, then, that is amenable to the Board's investigative jurisdiction.. (Hoile v Medical Board South Australia [1960] HCA 30; (1960) 104 CLR 157, Beaumont v Beasley (1973) 2 NSWLR 341, and Domburg v Nurses' Board of Victoria (2000) VSC 369, an unreported decision of Ashley J, 7 September 2000.

116. It was argued that the structure of the Act established the Board as the appropriate body to initiate, investigate and determine all matters relating to professional conduct or unprofessional conduct of registered nurses. Otherwise, so it was put, Parliament would not have invested the NBV with such powers. It was contended that the court should not, in the exercise of its discretion, intrude at this stage of the matter but allow it to be properly investigated and adjudicated upon, where adequate safeguards and remedies would ensure the proper administration of justice.

36 Hoile's case is the dominant authority. It is a High Court decision, often approved and from a Bench of most distinguished judges. The head note rehearses the decision of the entire court. It reads -

"Not all serious departures on the part of a medical practitioner from the standards of moral conduct amount to misconduct in a professional respect but if the practitioner's professional relationships are the occasion or the source of the misconduct and it is sufficiently serious it may be deemed to be misconduct in a professional respect." (Emphasis added).

123. That case, amongst others, was considered earlier this year by Ashley J in Domburg which considered matters extraneous to the issues before me, however the dominant authority of Hoile was iterated. He restated the purpose of the sections were aimed at protecting the public. Hoile concerned the behaviour of a doctor who frequently attended a hospital and thus came into conduct with the nursing staff which led him to take advantage of empty cubicles within the hospital to perform consenting adultery with the nurse on night duty. The court said this -

"However, much the general moral aspect of the matter may be emphasised as going to the relationship between man and woman. It remains true that the place was the hospital, the woman was a nurse, the man was a doctor and moreover the superintendent of the hospital. It arose out of a relationship professionally established and it was destructive of the position he should have held in the hospital and of his influence. All of these matters enabling the Board to find as it did." (Emphasis added).

127. Dr Hoile's appeal against a finding of professional misconduct was dismissed.

39 Cato v Medical Board of Victoria Beach J unreported 21 June 1985 (upheld in the Court of Appeal and leave to appeal to the High Court refused) is a case of remarkably similar fact situation. It involved a charge of infamous conduct under the Medical Practitioner's Act 1970. Beach J upheld the appeal launched by way of notice of motion against the Board's finding of infamous conduct. The doctor/patient relationship in that case was brought to and end by both parties. The relationship between them, which was initiated by the patient, one might say quite vigorously, had nothing to do with the earlier doctor/patient relationship. His Honour said:

"It was not a meeting arranged by the appellant for the purpose of giving Miss Pratt medical treatment or advice. It was arranged by both parties for the express purpose of forming an personal relationship between them, a relationship both of them were quite free to enter into. In my opinion their very actions in that regard terminated the doctor/patient relationship which had previously existed between them. A completely new relationship was formed, one which had nothing whatsoever to do with the appellant as a medical practitioner."

"I hold therefore that it was not open to the Board to find the appellant guilty of infamous conduct."

136. This case is a fortiorari. The time lapse between the cessation of the practitioner/patient relationship and the tenuous nature of it in the first place, is even more attenuated here. Cato was considered by Ryan JR in Baxter v Bendigo Health Care Group (1996) 70 IR 442. It was distinguished because in Baxter the facts were made out that the practitioner had abused his position of trust and used it to develop a sexual relationship with a patient's wife who was herself vulnerable and disoriented due to her husband's condition. The case is easily distinguished from the one before me.

139. Albert Alexander in an article entitled "Statutory Professional Disciplinary Proceedings", LIJ (1994) Vol. 68 p.154 marshalled the existing common law authorities dealing with the authority of boards such as the NBV to initiate and conduct investigations. He referred to Walton v Gardiner [1993] HCA 77; (1993) 67 ALJR 485 for the proposition that a continuation of abusive quasi litigious processes should be stopped at the earliest possible juncture. This I intend to do. Similarly, Tan in an article entitled "Sexual Misconduct by Doctors and the Intervention of Equity" (1996) 4 JLM 743 says of the fiduciary relationship between patient and doctor that the power to investigate should be reserved for those situations that are truly in need of the special protection that equity affords.

144. I must isolate the occasion and source of RJT's sexual relationship with Mrs B, and determine whether it was engendered by, and sustained, as a result of their professional relationship and destructive of it. Whether there was any element of exploitation or abuse of the professional relationship which enabled or permitted RJT to convert it into a sexual one. And to put Mr Robinson's arguments at their highest, whether there can ever be circumstances where a medical practitioner could engage in sexual activities with a former patient without that amounting to unprofessional behaviour or professional misconduct.

147. There is no need for contemporaneity between the practitioner/patient relationship and the conduct complained of, for it to amount to unprofessional behaviour. A medical practitioner may abuse his or her professional position by exploiting the relationship for the purposes of sexual gratification and thus act unprofessionally.

150. The long since terminated nurse/patient relationship did not result in RJT engaging in sex with Mrs B rather other factors were involved which I shall describe later. There is no suggestion he was able to manipulate that relationship into a sexual one, or that when the congress occurred Mrs B was psychiatrically vulnerable or disturbed.

153. I have searched the authorities to find an example of professional misconduct where the complainant is neither the subject of seduction nor in an inferior position vis-à-vis the medical practitioner. No such examples can be found. In this case Mrs B was the seducing and pursuing party. She invited RJT into her home, one must assume for the purposes of sexual congress albeit the excuse "for a coffee", is somewhat novel. The invitation was plainly a variation of "viewing my etchings". Both he and she were mature persons. This is not a case of a medical practitioner with superior age, intellect and position abusing those factors in order to obtain sexual gratification from a former patient. Rather, it is of the patient pursuing a person who happened to be formerly, and only partially responsible, for her care. She actively set up the circumstances and venue for her own gratification. The fact that he was very willing to comply and later the affair soured is not material to the allegation of professional misconduct although it does explain subsequent events.

Termination of Practitioner/Patient Relationship

157. It is uncontested that three years and two months elapsed between the time Mrs B was under the partial care of RJT and the adultery. There is no evidence of any intervening relationship or that he had ever sought to contact her, or she him. In fact, the evidence is wholly to the contrary. She did not know of his move from one hospital to the other and she actively pursued him to his new place of employment. Furthermore, whilst in his partial care she was being treated for post-natal depression arising out of the birth of the child. From this malady he was entitled to assume she had recovered or at least sufficiently so to have been discharged home. It is highly unlikely that a nurse would have thought Mrs B could have been suffering from this malady nearly three and a half years later, nor, it must be said in fairness, does the Board so contend. Therefore, this court is left with the lapse of more than three years between the termination of the practitioner/patient relationship, in respect of a condition which it is reasonable to assume would have since abated or been terminated.

160. I look to the "occasion" of these sexual games, meaning cause not time, as per Hoile. The occasion was remote in time and venue from the professional relationship. It is divorced from it. The occasion of the sexual activity had everything to do with sexual attraction and gratification, and nothing to do with the fact that Mrs B had years earlier been a patient. The hospital stay, was the vehicle for introducing Mrs B to RJT and nothing more.

163. I turn to the source of the complaint as opposed to the source of the conduct. The source is Mr B, the estranged and disgruntled spouse. The source is not one of the parties involved in the sexual congress. It is not a medical practitioner. It is not a member of the hospital board. It is not a fellow nurse. In so far as Mrs B is concerned it is plain from her statement furnished to the Board, albeit at a time after it had determined to proceed, that she is not interested in pursuing RJT for any alleged professional misconduct. If anything, she may want to "get back at him" but that motivation is explicable in terms of termination of the affair.

166. Mr B on the other hand, finding his marriage in ruins and his child deprived of the conjoint parenting of mother and father is, understandably, peeved and hostile towards the person, who in his mind, brought this state of affairs about. His letter of complaint of May 1999 about three weeks after he "discovered" the letter his wife had written detailing her passion for RJT, agitated his mind because he was cuckolded. The cuckoo happened to be a registered nurse.

169. In my view the Board must be extraordinarily careful when considering spousal or familial complaints allegedly relating to professional conduct. Anger, spite, jealousy, senses of betrayal are common motivations for those who make complaints to regulatory bodies as the experience of everything from the Australian Taxation Office to the Plumbers and Gasfitters Registration Board reveals. There will be many cases where the motivation of the complainant is not the protection of the patient or the profession, but retribution, personal spite or malice, just as there will be many complaints genuinely initiated. Marital and relationship breakdowns, will generally engender anger and a desire for retribution and self validation. The Board must be vigilant that it is not enticed into the bedrooms of its registered nurses, as I find has happened here.

172. In this case the Board has failed to take cognisance of the first arm of the judgment in Hoile, viz "no-one maintains that all serious departures on the part of a medical practitioner from the standards of moral conduct amount to misconduct in a professional respect". The Board seems to contend that any sexual congress with a former patient could amount to professional misconduct. There may well be cases where the Board's proposition could be correct, but as the High Court said:

"not all serious departures on the part of a medical practitioner find the standards of moral conduct amount to misconduct in a professional respect".

176. The circumstances must be taken into account.

179. I reiterate (1) the lapse of more than three years between the cessation of the medical practitioner/patient relationship and the sexual activity; (2) the age of the participants, (3) the consensual, one might say, enthusiastic nature of the sexual relationship terminating any pre-existing professional relationship leading to my conclusion that there was no "professional conduct: for the NBV to investigate; (4) the source of the complaint, are all circumstances of significance.

182. The Board must eschew involvement in matrimonial disputes. I am not prepared to find that Mr B's complaint was vexatious or frivolous, as these terms are understood legally. Although the NBV must accept all complaints, it must satisfy itself they are neither frivolous or vexatious before they are sent for preliminary investigation. It is trite to observe that allegations of sexual abuse, whatever the jurisdiction, are easily launched, difficult to prove or disprove, and often borne out of spite, justified or otherwise. Careful examination of such complaints is required before and not after the matters are referred for preliminary investigation. If that had been more thoroughly done in the case I would not be disposing of the issue. The Board has no role in assuaging the senses of outrage and betrayal of an individual. It must look to the objective standard of professional conduct and not the procedure which might pacify a complainant or abate public criticism.

185. The Board does not have the jurisdiction to clomp into the bedrooms of registered nurses or their former patients, simply and only because sexual congress has occurred. It must not let itself become partisan in the disputes between competing spouses. I find the reference in the charge to "Mrs B whom you knew to be married and still living with her husband" a very curious and irrelevant one. It is redolent of morality which penalises adultery. It is not the function of the NBV to enforce the seventh Commandment. Every citizen whether a registered nurse or otherwise has a basic freedom to fornicate. In some circumstances fornication may well be personally reprehensible, but only when a practitioner/patient relationship exists or should be protected, does it become unprofessional. Neither of these pre-conditions prevailed here.

188. It can be seen from the above that I accept Mr Hurley's contention as to want of jurisdiction, and that I reject the arguments advanced on behalf of the Board. Justice demands that this matter be terminated forthwith. It is not appropriate for the appellant to be put to the distress and costs of defending the complaint, not because it appears Mrs B would refuse to give evidence or because RJT has not been heard at all, but because the Board's own material could not possibly sustain the existence of a professional relationship to which unprofessional behaviour or misconduct could append. The Board's evidence viewed in the most favourable light, could not carry a proposition that the conduct complained of could be said to arise out of the professional conduct of RJT as a nurse.

191. Accordingly, I conclude there was no complaint concerning the professional conduct of a registered nurse within the meaning of s.22. The essential platform upon which the NBV then based its purported investigation was lacking. There is no point in permitting this matter to be pursued further. Accordingly, I shall order that any determination of the Nurses' Board of Victoria of 22 June 2000 to proceed to an investigation of the professional conduct of RJT be quashed. I declare that the Nurses' Board of Victoria does not have any jurisdiction to proceed with the complaint contained in its correspondence of 22 June 2000 addressed to the plaintiff. I shall enjoin the defendant from proceeding further with any hearing of it. I shall order that the defendant pay the plaintiff's costs of this hearing.