Health Ombudsman v Jolley

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

The Health Ombudsman v Jolley [2019] QCAT 173

PARTIES:

THE HEALTH OMBUDSMAN
(applicant)
v

KANDICE JOLLEY

(respondent)

APPLICATION NO/S:

OCR180 of 2018

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

9 August 2019

HEARING DATE:

19 December 2018 and 20 February 2019

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

Assisted by:
Ms Mary Barnett
Dr Kim Forrester
Mr Michael Halliday

ORDERS:

1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent shall be subject to the conditions set out in the attached schedule of conditions.

4. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is twelve months from the date hereof.

5. Subdivision 2, Division 11, Part 7 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.

6.   Each party bear their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – GENERALLY – where the respondent enrolled nurse engaged in an inappropriate personal and physical relationship with a patient – where the respondent attempted to end relationship with patient – where patient threatened to tell the respondent’s employer of their relationship – where the respondent disclosed to employer that she had had contact with a patient outside of work – where respondent’s employment terminated – where respondent applied for registration to be a registered nurse and disclosed she was subject to an investigation by the Office of the Health Ombudsman – where respondent’s registration subsequently granted with conditions – where respondent did not disclose full extent of relationship with patient to employer – where respondent admitted that statement provided to employer was false and misleading - where respondent later disclosed full extent of relationship with patient and cooperated fully in the proceedings – where respondent admitted to professional misconduct – where respondent subject to further ethical training before hearing – whether respondent should be suspended –

Health Ombudsman Act 2013 (Qld), s 103, 107, 109
Health Practitioner Regulation National Law 2009 (Queensland) Subdivision 2, Division 11, Part 7

HSK v Nursing and Midwifery Board of Australia; Health Ombudsman v HSK [2018] QCAT 404, distinguished
Medical Board of Australia v Jansz [2011] VCAT 1026, cited
Nursing Midwifery Board of Australia v Buckby {[2015] WASAT 19, distinguished
Nursing Midwifery Board of Australia v Clydesdale [2013] QCAT 191
Nursing Midwifery Board of Australia v Evans [2016] QCAT 77, distinguished
Nursing and Midwifery Board of Australia v Sandra Garie [2019] SAHPT 4, distinguished
Nursing and Midwifery Board of Australia v Jackson [2013] WASAT 140, cited
Nursing v Midwifery Board of Australia v Makoni (Review and Regulation) [2017] VCAT 2065, distinguished
Nursing Midwifery Board of Australia v…

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Details
Case
[2019] QCAT 173
Decision Date

CaseChat Overview and Summary

In the matter of Health Ombudsman v Jolley, the respondent, an enrolled nurse, engaged in an inappropriate relationship with a patient, DM, which the parties accepted amounted to professional misconduct. The central issue before the Tribunal was whether the respondent’s conduct warranted a period of suspension. The Tribunal heard evidence of a relationship that began with a Facebook message from DM thanking the respondent for her care. This contact escalated into a personal and physical relationship, despite the respondent’s efforts to end it. The respondent’s admission of the relationship to her employer, albeit in a limited form, led to her dismissal. When applying for registration as a registered nurse, she disclosed the investigation but not the full extent of her relationship with the patient. The respondent later fully disclosed the relationship and cooperated in the proceedings, admitting to professional misconduct.

The Tribunal considered the severity of the misconduct and the respondent’s cooperation and remorse. It concluded that while the respondent’s conduct was serious, the factors in mitigation, including her full cooperation and remorse, warranted a reprimand and conditions on her registration rather than suspension. The Tribunal imposed conditions on the respondent’s registration, including mandatory mentoring by a registered health practitioner with specific qualifications and experience. These conditions aim to ensure the respondent’s professional development and adherence to ethical standards. The Tribunal also ordered that each party bear their own costs.

Orders

Orders of the court

1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent shall be subject to the conditions set out in the attached schedule of conditions.

4. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is twelve months from the date hereof.

5. Subdivision 2, Division 11, Part 7 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.

6. Each party bear their own costs.

Background

Background to the litigation

The practitioner accepted that the conduct admitted in the statement of agreed facts amounted to professional misconduct. The issue in dispute was whether the conduct necessitated a period of suspension.Admitted facts and circumstances of conduct Ms Jolley gained registration as an enrolled nurse on 17 January 2014. From 31 March 2014 to 20 September 2016, she was employed at Metro South Hospital in health services and worked as enrolled nurse at PAH in the Metro South Addiction and Mental Health Service. It was while working in that service that Ms Jolley first met patient DM, when he was an inpatient at PAH in 2014. Ms Jolley did not provide treatment of care to DM during his admissions in 2014. DM had a history of mental illness including post-traumatic stress disorder (PTSD) following an assault when he was 15 and subsequent psychosis characterised by heavy illicit drug use and grandiose delusional beliefs. It was not until DM’s admission in the period from 6 November 2015 to 17 November 2015 that Ms Jolley was part of DM’s treatment team. Shortly after DM’s discharge from PAH on 17 November 2015, Ms Jolley accepted a Facebook friend request from DM and received a Facebook message from DM. In the message, DM thanked Ms Jolley for the care she had provided during his hospital admission. Ms Jolley subsequently gave DM her mobile telephone number. Between 18 November and 27 November 2015, Ms Jolley and DM had lunch together at a Japanese restaurant at Sunnybank and afterwards DM attended Ms Jolley’s house. On 27 November 2015, DM was again admitted to PAH for a period of six days. Ms Jolley was not involved in DM’s care at the time of that admission. During the period of that admission, the contact between Ms Jolley and DM continued; albeit Ms Jolley deposes to having between 27 November and 29 November 2015 sent a message to DM that because of his readmission to hospital contact must cease and he must delete her from Facebook and stop messaging her. That evidence is not challenged. Despite that, it is admitted that on 1 December 2015 Ms Jolley sent a text message to DM asking him to have coffee with her whilst he was on his two hour release from PAH. After DM’s discharge on 3 December 2015, Ms Jolley and DM continued to exchange personal and social text messages. In the period between 13 and 15 December 2015, they went away together to Pottsville in northern New South Wales where they slept in the back of DM’s car and slept together in a tent, talked about their relationship and kissed. By 15 December 2015, Ms Jolley and DM had developed a physical relationship to the extent of hugging, kissing and sleeping in the same bed together including laying naked in bed together. In late December 2015 or early January 2016, DM stayed at Ms Jolley’s house and they slept together in her bed, kissed, DM removed Ms Jolley’s clothes and DM was naked. On that occasion, DM placed his mouth on Ms Jolley’s genitals. In the statement of agreed facts, it is accepted that Ms Jolley was an unwilling recipient of this sexual contact and that Ms Jolley had requested that DM stop and DM did stop.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Ombudsman did not seek an order for costs. It is appropriate that the Tribunal record that position by making a formal order that each party bear their own costs.Decision Accordingly, it is the decision of the Tribunal that: 1.Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct. 2.Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.3.Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent shall be subject to the conditions set out in the attached schedule of conditions.4.Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is twelve months from the date hereof. 5.Subdivision 2, Division 11, Part 7 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.6.Each party bear their own costs. The Practitioner must be mentored by another registered health practitioner. For the purposes of this condition, ‘mentoring’ is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner. The mentoring must be for a period of 12 months and performed: a. for at least 1 hour per fortnight for a period of 3 months; and b. for at least 1 hour per month for a period of 9 months. Within 28 days of the making of the orders, the Practitioner must notify the Board, in writing, the name of the mentor. The Practitioner must ensure: a. the mentor is a registered nurse who holds unrestricted registration;b. the notification is accompanied by the contact details of the mentor together with a detailed copy of the mentor’s curriculum vitae which demonstrates that the mentor is senior to the Practitioner by at least five years of experience or position and has additional training, experience and/or qualifications in order to provide the mentoring required; c. that the mentor is not in a close collegiate, family, social or financial relationship with the Practitioner; d. the notification is accompanied by written confirmation from the mentor that the mentor has read these conditions and agrees to the appointment, the mentor is not in a relationship with the Practitioner as described in paragraph (c) and the mentor agrees to provide the report outlined in paragraph (f);e. the notification is accompanied by a written mentoring plan outlining the form the mentoring will take including as to how it is proposed to address the allegations which gave rise to the reprimand by the Board and the imposition of these conditions and the proposed schedule for mentoring; andf. the notification is accompanied by written acknowledgement from the Practitioner that the Board may require reports to be provided from the mentor. These reports should include details of the number of mentoring session(s) including details of whether or not the Practitioner has, in the opinion of the mentor, satisfactorily participated in and understood the focus of the mentoring. The reports may be obtained at any or all of the following occasions:i.every 3 months;ii.at the conclusion of the mentoring relationship in order to confirm the outcomes of mentoring;iii.whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner's conduct or professional performance; andiv.when requested either verbally or in writing by AHPRA or the Board.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.