PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - where the registrant accepted gifts from a person for whom she was a carer - where the registrant admitted the conduct amounted to unsatisfactory professional conduct - where the Board submitted cancellation of the registrant's registration was an appropriate sanction - where the registrant submitted suspension was an appropriate sanction - whether the registrant's registration should be cancelled

Health Practitioners (Professional Standards) Act 1999, s 123, s 407

HCCC v Horwood [2009] NSWNMT 6, cited

HCCC v Roberts [2008] NSWNMT 17, cited

Nursing and Midwifery Board of Australia v Farley [2011] QCAT 162, cited

Ooi v Medical Board of Queensland [1997] 2 Qd R 176, cited

Psychologists Board of Queensland v Robinson [2004] QCA 405, cited

Speech Pathologists Board of Queensland represented by Ms L Nixon of DLA Piper Australia

Lois Clark represented by Mr A Luchich of Counsel instructed by Meridian Lawyers

[1] At the conclusion of a hearing on 15 May 2013, the Tribunal made the following orders.

1. Pursuant to section 240(1) of the Health Practitioners (Professional Standards) Act 1999, the Tribunal finds that Lois Clark has behaved in a way that constitutes unsatisfactory professional conduct.

2. Lois Clark's registration is suspended for a period of 12 months from the date of this order.

3. Before returning to practice as a speech pathologist, Lois Clark must complete the online training module 'Professional Boundaries' and 2-day workshop 'Being Close While Being Distant: Safe Professional Boundaries with Clients, with Colleagues', provided by Dr Wendy McIntosh of Davaar Consultancy & Development Pty Ltd.

4. Before returning to practice as a speech pathologist Lois Clark must repay Mr Parsons the sum of $10,500.

5. Lois Clark must pay the Board's costs of and incidental to these proceedings fixed in the sum of $25, 000.

[2] At that time, the Tribunal indicated that it would publish full reasons for its decision in due course.

[3] Ms Lois Clark is a speech pathologist. She was first registered as a speech pathologist in Queensland in January 2005.

[4] Between February 2009 and late June 2011 she was employed by Advanced Care Australia as a casual disability support worker. Advanced Care Australia delivers disability support services to persons in the community. Mr Garry Parsons was such a person. He has disabilities as a consequence of two brain haemorrhages suffered by him in 2007. While employed by Advanced Care Australia Ms Clark also worked, on her own account, from time to time, as a speech pathologist.

[5] It was in this context that Ms Clark became involved with Mr Parsons. From September 2010 to 26 June 2011 Ms Clark was appointed by Advanced Care Australia to assist Mr Parsons as a personal carer. The commencement of Ms Clark's assistance to Mr Parsons coincided with his moving into his own home after leaving rehabilitation more than three years after he suffered the brain haemorrhages.

[6] The care provided to Mr Parsons involved about an hour of care in both the morning and evening. Ms Clark estimates that between October 2010 and June 2011 she would have provided services to Mr Parsons as his carer, on average, four times per week.

[7] Ms Clark informed Mr Parsons that she was a speech pathologist, and that she worked in her own mobile speech pathology business. Mr Parsons says this topic arose early in the period of provision of services to him by Ms Clark and in the context of a discussion between them about his receiving speech pathology from others. Ms Clark says that it arose in general conversation and through Mr Parsons being inquisitive as to what she did outside of her work as his carer.

[8] The conduct which forms the substance of the referral falls, broadly, into two categories, each of which can be described as boundary violations by Ms Clark.

[9] The first category of conduct is that Ms Clark maintained a social relationship with Mr Parsons. That social relationship commenced on or about 20 May 2011 during the period when Ms Clark was his carer and continued after she ceased caring for him in June 2011.

[10] The particular conduct during the period from 20 May 2011 to 26 June 2011 when Ms Clark was Mr Parsons carer was that:

(a) On 20 May 2011, the Registrant attended dinner at Thai Frenzy in Buderim with Parsons and Kylie Bishop.[1]

(b) On 21 May 2011, the Registrant attended Birch Carroll & Coyle Maroochydore cinemas with Parsons and her daughter.[2]

(c) In or about May 2011, the Registrant attended the cinemas with Parsons and her friends.

(d) On 27 May 2011, the Registrant invited Parsons for dinner at her home.

(e) On 28 May 2011, the Registrant attended drinks with Parsons at the 'Pig 'n Whistle' in Maroochydore.

(f) On a number of occasions the Registrant had telephone conversations and exchanged text messages with Parsons.

[11] The particular conduct during the period after she ceased to be his carer was:

(a) On 30 June 2011, the Registrant went to the Pig & Whistle for a drink with her daughter Michelle, Parsons and others.[3]

(b) On 30 July 2011, the Registrant went to the Buderim Tavern for drinks with Parsons as part of a larger group of friends.

(c) On 13 August 2011, the Registrant went to Montezumas Mexican Restaurant in Mooloolaba with Parsons and another lady named Linda.

(d) On a number of occasions the Registrant had telephone conversations and exchanged text messages with Parsons.

(e) On other occasions the Registrant attended dinner, pubs and movies with Parsons and others.

[12] The second category of conduct is that during the period both before and after she ceased to be Mr Parsons' carer, from May 2011 to August 2011, Ms Clark received gifts and money from Mr Parsons. Some gifts and money were given to Ms Clark for her general personal use. Other gifts and money were given to her to assist her in establishing or continuing her speech pathology business.

[13] The particulars of the gifts and money given to her for her personal use are:

(a) Parsons purchased replacement tyres for the Registrant's vehicle, one tyre for $79 on 24 May 2011 and four tyres for $581 on 27 May 2011 from Bridgestone Select Tyres Maroochydore.

(b) On 20 May 2011, Parsons purchased dinner at Thai Frenzy Restaurant for the Registrant and another persons for $72.50.

(c) On 21 May 2011, Parsons purchased Birch Carroll & Coyle Maroochydore cinema tickets for the Registrant and her daughter for $86.40.[4]

(d) On 5 July 2011, Parsons transferred $200 to the Registrant's bank account.

(e) In or about early August, Parsons purchased a 32" flatscreen TV for the Registrant.

(f) On 13 August 2011, Parsons paid $54.85 for his own, the Registrant's and another person's dinner at Montezuma's Restaurant Mooloolaba.

[14] The particulars of the gifts and money given to her in connection with her speech pathology business are:

(a) On 10 June 2011, Parsons purchased for $108.00 the crazydomains.com.au product "My Web Host Plus for 1 year" to host the Registrant's domain name.

(b) On 11 June 2012, Parsons paid for $90.00 the Registrant's website domain renewal.

(c) On 15 June 2011, Parsons purchased for $643.00 a ASUS laptop and Blink power pack mobile online from Joyce Mayne AV/IT for the Registrant.

(d) On 15 June 2011, Parsons purchased for $62.18 Microsoft Office software online from Original Equipment Manufacturer (OEM) for the Registrant.

(e) On 17 June 2011, Parsons purchased for $49.00 a Blink Mobile Internet Dongle for the Registrant from Joyce Mayne AV/IT.

(f) On 19 June 2011, Parsons purchased for $79.95 a computer router from Joyce Mayne AV/IT for the Registrant.

(g) On 20 June 2011, Parsons transferred $830 to the Registrant's bank account which was used to pay for her professional membership fees to Speech Pathology Australia, professional registration renewal and speech pathology text books.

(h) From 15 June 2011 to 21 June 2011, Parsons spent approximately 30 hours configuring the laptop for the Registrant.[5]

(i) In or about June 2011, Parsons transferred money to the Registrant's bank account to pay for her professional registration renewal.

(j) On 24 June 2011, Parsons purchased a database collector for $38.05 from Bravenet for the Registrant.

(k) On 25 June 2011, Parsons purchased an eLr subscription and online software access for $175.00.

(l) On 28 June 2011, Parsons purchased Software for the Registrant's laptop from OEM website for $35.46.

(m) On 28 June 2011, Parsons transferred $620.00 to the Registrant's bank account to pay for her Cert IV.

(n) On 3 July 2011, Parsons purchased database and password protection products online from Bavenet Web Services for the Registrant for $37.25.

(o) On 7 July 2011, Parsons paid $456.00 to Kwik Kopy for printing of 500 Business Cards - Double Sided, Design fees and for printing of 500 Letterheads.

(p) On 9 July 2011, Parsons withdrew and provided $700 to the Registrant.[6]

(q) On 14 July 2011, Parsons purchased for $340.00 a multifunction Printer/Scanner/Fax and cartridges from Joyce Mayne AV/IT for the Registrant.

(r) On 24 July 2011, Parsons withdrew $620.00 from the IGA Express Chancellor Park ATM and provided it to the Registrant.

(s) On 3 August 2011, Parsons purchased for $289.00 MYOB AccountRight Basics 2011 version software for the Registrant.

(t) On 9 August 2011, Parsons transferred $1,000.00 to the Registrant's bank account for the purpose of her obtaining her Certificate IV in disability.

(u) Parsons paid $25 for the Registrant's website Domain Name Registration for 12 months.

(v) Parsons paid $99.00 for the Registrant's Web hosting for 12 months.

(w) Parsons provided online updates and site management for the Registrant's website.

(x) Parson's provided the Registrant with Logo, business card and letterhead design and layout including camera ready art.

(y) From approximately July 2011 to 16 January 2013, Parsons made monthly payments for Ms Clark's mobile internet connection which was provided by Blink Internet ('Blink Internet').

[15] The Board alleges that Ms Clark's conduct satisfies the definition of unsatisfactory professional conduct in the Health Practitioners (Professional Standards) Act 1999 in that it was:

(a) professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant's professional peers;

(e) conduct discreditable to the registrant's profession;

(i) other improper or unethical conduct.[7]

[16] For her part, Ms Clark admits that her conduct, as particularised above, amounts to unsatisfactory professional conduct. In the Tribunal's view, that admission is well made.

[17] Whilst Ms Clark's contact with Mr Parsons through her employment was as his personal carer rather than as his speech pathologist, there is no doubt that there was a connection between many of the gifts given and money advanced by Mr Parsons and Ms Clark's profession as a speech pathologist.

[18] The Code of Ethics of Speech Pathology Australia, of which organisation Ms Clark was a member, included the following:

We will ensure that we do not exploit relationships with our clients for emotional, sexual or financial gain.

We do not directly or indirectly demand or accept any rewards, bribes, substantial gifts, gratuities or benefit in respect to our work.

We avoid conflicts of interest in particular, we do not:

• Accept private financial benefits (including tips, commissions, or other awards);

[19] It may be questionable as to whether Mr Parsons was a 'client' as contemplated by clause 3.1.5 of the Code of Ethics. The term is not defined by the Code. But Ms Clark has not sought to argue that point. There seems less room for argument that clause 3.2.6 would apply to the circumstances of this matter. But in any event, Ms Clark does not seek to do so.

[20] In admitting to unsatisfactory professional conduct Ms Clark has not identified particular ethical principles, contained in the Code or otherwise, measured against which her conduct would be found wanting. Rather, her admission reflects an acceptance on her part that speech pathologists of good repute and competency would consider her conduct disgraceful and dishonourable, or that it violated or fell short of, to a substantial degree, the standard of professional conduct approved by them.[8]

[21] Whilst the conduct as particularised above and the allegation that it constitutes unsatisfactory professional conduct are admitted, there is not total agreement between the parties on the factual issues. Certain disputed facts are set out in the Statement of Agreed and Disputed Facts. Others emerge from the Affidavits of Mr Parsons and Ms Clark.

[22] The parties, quite reasonably, both submit that the Tribunal need not resolve the contentious facts to resolve the proceedings. Each submits that sufficient facts have been admitted by Ms Clark to support the finding, and her admission, that she has engaged in unsatisfactory professional conduct.[9]

[23] As a consequence of this position adopted by both parties, there was no cross-examination of either Mr Parsons or Ms Clark.

[24] The Tribunal agrees that the resolution of those contentious facts is unnecessary given the admissions made by Ms Clark. However, the Tribunal must not, in determining sanction, act upon facts which remain in dispute. Of particular note in this regard is that the Board's allegations include that the gifts and money were given to Ms Clark in exchange, at least partially, for an offer made by Ms Clark to provide Mr Parsons with speech pathology services.[10] In his affidavit Mr Parsons deposes to such an arrangement.[11] However, Ms Clark expressly denies any such arrangement.[12] Although she does say that she offered to, and did, provide Mr Parsons with a sheet outlining some exercises which he could perform to help him with his speech.[13]

[25] The Board submits that Mr Parsons was a vulnerable person. That is clearly the case. Whilst it is submitted on Ms Clark's behalf that the genesis of the social relationship between herself and Mr Parsons occurred with her noticing that he was 'down' and expressing negative thoughts about life,[14] this tends to highlight Mr Parsons' vulnerability. The steps which she took to report those matters to her employer, which seemed to have resulted in Mr Parsons receiving some assistance from a psychologist, were commendable. Her encouragement 'to get out and about'[15] may also have been well meaning. However, her acceptance of invitations to socialise with him when he said in response to such encouragement that 'he did not feel ready to go out on his own'[16] was entirely inappropriate. The Board makes the point in this regard, correctly in my view, that Ms Clark's initial acceptance of money from Mr Parsons coincided with this time at which she noticed that he was downcast.

[26] I accept that Ms Clark now recognises that she ought not to have socialised with Mr Parsons at all,[17] and that she should not have accepted money or gifts from him.[18] However, that recognition by Ms Clark seems only to have been achieved through Mr Parsons having now revealed the full extent of his interest in her. It should never have had to come to that.

[27] That she never intended for Mr Parsons to believe that she had a romantic interest in him, and that she is now truly sorry that he believes she misled him about that,[19] somewhat misses the point. These are the very circumstances from which vulnerable persons such as Mr Parsons are to be protected by the observation of appropriate boundaries by persons into whose care they are placed.

[28] The Board submits that Ms Clark's conduct was wilful and that the repetition of her conduct over an extended period '...demonstrates that she actively sought the gifts, money and assistance rather than passively accepted them'.[20] In fairness to Ms Clark, I am not sure that her conduct, even as deposed to by Mr Parsons,[21] does demonstrate that she actively sought the gifts and money. However, in the circumstances, I think that it matters little. What is apparent is that she continued to accept gifts, particularly of substantial sums of money in circumstances where she expressed both an understanding that taking the money was 'not right',[22] and concern that Mr Parsons may have been leaving himself short in order to give her money.[23] The inappropriateness of that conduct is manifest.

[29] On her behalf it is submitted that there is nothing to indicate that Ms Clark embarked upon a course of conduct with dishonest intent. That should be accepted. It seems to me that events unfolded quite rapidly and that Ms Clark was not scheming to deliberately exploit Mr Parsons.

[30] The Board contends that the appropriate sanction is the cancellation of Ms Clark's registration, and an order prohibiting her from applying for re-registration for a period of 18 months. Alternatively, the Board seeks a suspension of her registration for a period of not less than 18 months.

[31] The Board also seeks orders that prior to reapplying for registration Ms Clark must satisfactorily complete a course in ethics and repay Mr Parsons the sum of not less than $10,500.00. These last two conditions are not opposed by Ms Clark.

[32] On Ms Clark's behalf it is submitted, though, that the primary sanction should be the suspension of her registration for a period of 12 months rather than its cancellation. It is submitted that the cancellation of her registration would be punitive. Of course, the purpose of proceedings such as these is protective, not punitive.[24]

[33] In support of its contention that Ms Clark's registration should be cancelled, the Board refers to three decisions where the conduct of the particular registrants was of a nature similar to that in the present case.

[34] In Nursing and Midwifery Board of Australia v Farley,[25] a nurse who had allowed a patient to make or arrange substantial loans to her, and who was found to have thereby engaged in unsatisfactory professional conduct, was suspended for a period of 18 months. Mr Luchich for Ms Clark points out that in Farley, the suspension was itself suspended after six months.[26] In those circumstances, he submits, the proposed suspension of Ms Clark's registration for 12 months would result in an actual period of suspension served twice that which was the case in Farley.

[35] The Board also refers to two cases in the New South Wales Nursing and Midwifery Tribunal. In each of those cases the nurses concerned had their names removed from the roll of nurses.

[36] In the first, HCCC v Roberts,[27] it is apparent from the Tribunal's reasons that it felt compelled to remove the nurse from the register rather than impose some lesser sanction because the nurse had 'displayed such a limited insight into the seriousness and consequences of her actions that the Tribunal fears that if she was allowed to recommence the practice of nursing similar errors of judgment could occur'.[28]

[37] By contrast, the Tribunal accepts the submissions on behalf of Ms Clark that she has demonstrated insight into her actions. She has recently completed an online training module on professional boundaries. She has also paid a deposit toward, and reserved a place in, a two day workshop called 'Being Close While Being Distant: Safe Professional Boundaries with Clients, with Colleagues'. The Board has agreed to this course being the ethics course which Ms Clark would be required to complete before she could recommence practice in the profession.

[38] Ms Clark has also demonstrated insight through commencing to repay Mr Parsons the money which he advanced to her or paid on her behalf. In considering this aspect it is to be borne in mind that Ms Clark was genuinely unaware of some of the expenditure which Mr Parsons had made on her behalf. Most notably, she understood that the laptop computer which he provided to her was one which he already owned, but was not presently using. She accepted it on that basis with the intention of returning it to him when he required it. She did not know that he had, in fact, purchased it new for her.

[39] Similarly, Mr Parsons provided various software to Ms Clark which she did not know he had acquired for her. Rather, she had mistakenly thought that he already owned it.

[40] The Board emphasised that Ms Clark made no attempt prior to these proceedings to return any of the goods which she had been given by Mr Parsons. Whilst that may be so (leaving aside the possibility that there may have been an earlier attempt to return the laptop computer) given that Ms Clark's, albeit late, attempt to return the goods was met with the response on behalf of Mr Parsons that he did not want them returned as they were gifts, little is to be made of it.

[41] Ms Clark has also demonstrated significant and commendable insight in the way in which she has participated in and facilitated these proceedings. An urgent hearing of the proceedings was sought recently by the Board due to its imminent disabandonment as a consequence of the enactment of the Health Practitioner Registration and Other Legislation Amendment Act 2013. Ms Clark did not resist that course. Indeed she actively cooperated in facilitating it. Had she not, these proceedings against her could only have continued at her election. They would otherwise have lapsed.[29] In my view, this matter stands strongly to her credit on the question of insight.

[42] The third case referred to by the Board was HCCC v Horwood.[30] Whilst the name of the nurse was removed from the roll in that case also, it is clear from the decision that the question of suspension was not considered. The competing positions were removal or the registrant's name being retained on the roll so that she could continue to work as an enrolled nurse. It is also clear that the matter was not fully argued. The registrant did not participate in the proceedings, and was not represented, beyond the first day of the hearing. She submitted a short written submission.

[43] I am of the view that a suspension of 12 months is an appropriate sanction in this case. Such a sanction will serve the purposes of the proceedings.

[44] In reaching that view I am also mindful that any future regulatory regime of speech pathologists is uncertain. Cancellation of registration may in the future become an impediment to re-registration not contemplated at the time of cancellation. This may lead to unintended punitive results.

[45] The parties are agreed that Ms Clark should pay the Board's costs fixed in the sum of $25 000.00.

[1] The Registrant does not recall the date of the dinner at Thai Frenzy at Buderim.

[2] The Registrant does not recall the date that she attended Birch Carroll & Coyle Maroochydore with Parsons and her daughter.

[3] The Registrant does not recall the date that she went to the Pig & Whistle for a drink.

[4] The Registrant disputes the amount Parsons paid.

[5] The Registrant does not know the amount of time Parsons spent Configuring the laptop.

[6] The Registrant does not recall the date parsons gave her $700.

[7] See the definition of 'unsatisfactory professional conduct' in the Schedule to the Health Practitioners (Professional Standards) Act 1999.

[8] Compare Psychologists Board of Queensland v Robinson [2004] QCA 405 per Chesterman J at [23] and the cases there cited.

[9] See [15]-[16] of the Board's submissions on sanction and [7]-[8] of the submissions on sanction filed on behalf of Ms Clark.

[10] See [10.5] of the Board's submissions on sanction.

[11] Affidavit of Garry Parsons filed on 9 November 2012, [39].

[12] Affidavit of Lois Mary Clark filed 11 February 2013, [40].

[21] See particularly the text messages and transactions deposed to by Mr Parsons at [89]-[103] of his affidavit.

[22] [93] and [102] of Mr Parsons affidavit.

[23] Ibid at [95] and [99] and the text messages exhibited.

[24] Health Practitioners (Professional Standards) Act 1999, s 123 and Ooi v Medical Board of Queensland [1997] 2 Qd R 176 at 177.

[25] [2011] QCAT 162.

[26] Subject to certain conditions being fulfilled.

[27] [2008] NSWNMT 17.

[29] Health Practitioner (Professional Standards) Act 1999, s 407 as inserted by the Health Practitioner Registration and Other Legislation Amendment Act 2013.

[30] [2009] NSWNMT 6.