Health Ombudsman v Masamba

[2019] QCAT 227

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

The Health Ombudsman v Masamba [2019] QCAT 227

PARTIES:

THE HEALTH OMBUDSMAN
(applicant)

v

GARIKAYI MASAMBA

(respondent)

APPLICATION NO/S:

OCR295-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 August 2019

HEARING DATE:

26 September 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

Assisted by:

Ms M Barnett
Mr J McNab
Mr M Halliday

ORDERS:

1.   Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent is found to have 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)(d) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent is suspended for a period of 3 months, to take effect from a date to be agreed between the Health Ombudsman and the respondent provided such date is not later than three months from the date hereof.

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

5. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies.

6.   Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), for the purposes of Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) the relevant review period for the conditions is 12 months, commencing from the date hereof.

7.   Each party bear their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where the registrant worked as a mental health nurse and engaged in an inappropriate relationship with a patient – where the registrant admitted professional misconduct  – where parties agreed sanction – whether the agreed sanction was appropriate

Health Ombudsman Act 2013 (Qld), s 3, s 4 s 103, s 104, s 107
Health Practitioner Regulation National Law(Queensland), s 109, s 130, s 226

Attorney General v Bax (1999) 2 Qd R 9, cited
Health Care Complaints Commission v Do [2014] NSWCA 307, cited
Medical Board of Australia v Blomeley [2018] QCAT 163, cited
Medical Board of Australia v Fitzgerald [2014] QCAT 425, cited
Ooi v Medical Board of Queensland [1997] 2 Qd R 176, cited
Pharmacy Board of Australia v The Registrant [2015] QCAT 477, cited
Queensland Nursing Council v Dodd [2010] QDC 220, cited

Applicant:

L.M. Reibelt, solicitor instructed by the Office of the Health Ombudsman

Respondent:

O Denes, solicitor instructed by Denes Lawyers

REASONS FOR DECISION

The Referral

1. On 20 December 2017, the Health Ombudsman referred to the Tribunal disciplinary proceedings against the respondent, Mr Masamba. The referral was made pursuant to s 103(1)(a) and s 104 of the Health Ombudsman Act2013 (Qld) (HO Act).

2. An amended referral was subsequently filed on 5 July 2018.  The amended referral contained one charge alleging that Mr Masamba breached professional boundaries by engaging in an inappropriate relationship with a former patient; the particulars of which included that Mr Masamba had met with a patient outside of work and had sent inappropriate facebook messages suggesting that they should have a sexual relationship together.

3. It is alleged that as a result of the conduct Mr Masamba engaged in professional misconduct, or in the alternative, unprofessional conduct as those terms are defined within s 5 of the Health Practitioner Regulation National Law (Queensland) (National Law).

4. The matter proceeded before the Tribunal by way of an agreed statement of facts and joint submissions.  That position was reached, however, subsequent to the filing of affidavits by the Health Ombudsman including an affidavit by the patient and an affidavit in response by Mr Masamba.

5. The parties agreed that Mr Masamba’s conduct in respect of the charge in the referral amounted to professional misconduct.  The parties submitted that the orders sought to be made by the Tribunal were that:

   (a)Mr Masamba be reprimanded;

   (b)Mr Masamba’s registration be suspended for a period of three months; and

   (c)Conditions be placed on Mr Masamba’s registration requiring Mr Masamba to undertake a program of education addressing professional boundaries.

6. Mr Masamba submitted, and the applicant did not oppose, a period of three months be given in which Mr Masamba could make arrangements with his employer, prior to the commencement of the period of suspension.

7. The parties’ joint position was that each party should bear their own costs.

Relevant facts and circumstances

Background facts

1. In 2002, Mr Masamba obtained a Diploma in Higher Education (Nursing Studies) in the United Kingdom, after which he completed a Bachelor of Science, majoring in Mental Health Nursing.  After living and working overseas as a nurse for a number of years, Mr Masamba moved to Australia and commenced working in a number of hospitals and clinics as a mental health nurse.  He obtained a Masters in Mental Health from the University of New South Wales in 2011.

2. Mr Masamba has held registration as a Registered Nurse under the National Law since April 2008 and continues to hold registration.

3. Since 2013, Mr Masamba has been employed at the Princess Alexandra Hospital as a Registered Mental Health Nurse, aside from between 10 August 2015 and late October 2015, when he worked at Griffith University’s Health Service.

The offending conduct

1. By reference to the statement of agreed facts, the patient first attended an appointment with Mr Masamba at the Griffith University Health Service on 12 October 2015. During that consultation Mr Masamba discussed a number of issues including the patient’s history of self-harm, depression and her difficulties with university studies.

2. The patient attended a second consultation with Mr Masamba on 19 October 2015. Whilst at that consultation, Mr Masamba told the patient that he was leaving Griffith University to begin working at the Princess Alexandra Hospital. 

3. At the end of that consultation, the patient and Mr Masamba exchanged Facebook contact information; though it remains a matter disputed by Mr Masamba as to whether he asked for the patient’s contact details.

4. On 3 December 2015, Mr Masamba messaged the patient via Facebook Messenger. During the conversation, Mr Masamba suggested that they should meet for lunch.  This discussion spanned several days and on 10 December 2015, Mr Masamba said to the patient “I want you to be a close friend”.  On 11 December 2015, Mr Masamba and the patient met for lunch at a restaurant.

5. At the lunch Mr Masamba and the patient did not discuss the patient’s mental health nor did Mr Masamba indicate that he was interested in a romantic or sexual relationship with the patient.  The patient and Mr Masamba spoke about their lives “as friends”.

6. Following lunch, Mr Masamba sent the patient a Facebook message suggesting they should see a movie or get dinner next time.

7. There was no further communication between Mr Masamba and the patient until 24 December 2015.  On that date Mr Masamba initiated a series of messages making a number of suggestions and comments of a sexual nature and continued to make them for some time after the patient rebuffed him. These included the statements,

   “Next year lets [sic] take our friendship to the next level. You still haven’t given me your number”.

   “I want us to be close”

   “Say if we are sexually attracted we can take things to another level. Talk to me.”

   “I can marry you. I am a citizen.”

   “If it doesn’t work with your bf will you talk to me. Because I like you. You are so beautiful”.

8. Following this exchange, the patient blocked Mr Masamba and there was no further communication between them.

Investigation

1. In April 2016, the patient attended another mental health nurse for treatment and detailed her interactions with Mr Masamba.  Following this, a notification to the Office of the Health Ombudsman was made.  As a result of that notification an investigation into Mr Masamba’s conduct was commenced on 23 June 2016.  The patient provided a signed statement dated 30 June 2016.  An interview with Mr Masamba took place in February 2017.

2. Mr Masamba was questioned about the consultations and the apparent absence of notes from the second consultation.  Mr Masamba denied that notes were not made during that consultation but said the notes that he did make were misplaced before being uploaded unto the computer.

3. Mr Masamba said that the patient had asked to befriend him on Facebook.  He said that he had two Facebook accounts and he said that she had befriended him on the account he does not often use.  He said it was the account that was often ‘hacked’ and was accessed by several people including his wife and children.  He said he thought it would be rude not to accept the invitation but denied otherwise messaging the patient.

4. Mr Masamba suggested that if there was any messaging it could have been his wife or his daughter who had used the account.  When shown the Facebook messages provided by the patient, he again stated that someone must have abused his account.  He gave details of his wife having used this account to send inappropriate messages in the past that had caused him ‘difficulties’.[1]

   [1]Ibid, page 30.

5. Mr Masamba admitted to having lunch with the patient but did not initially admit to the lunch having been organised by Facebook.  He said that it was the patient wanting to meet up for lunch.   

6. After being reminded by one of the investigators of the importance of not telling untruths, Mr Masamba admitted that he “might have responded” to some of the messages.  Mr Masamba claimed, amongst other things that, he was drunk when he messaged the patient, he never intended anything more than a friendship with the patient, he only offered to marry the patient because she was ‘nagging him’, he was not attracted to the patient’s ethnicity and so could not have had any sexual intentions with her, and the patient was the one who initiated the Facebook messaging.[2]

   [2]Supra n 2, pages 33 – 35.

7. Throughout the interview, Mr Masamba maintained his position that it was the patient who had contacted him and he was simply responding.  This evidence conflicted with the patient’s evidence that Mr Masamba asked for her email address and phone number at the end of the second consultation.  In her statement to the investigators, the patient said she gave Mr Masamba her Facebook name and that it was Mr Masamba who made contact with her to ask about catching up for lunch.

8. In the course of Mr Masamba’s interview, subsequent to his making certain admissions, Mr Masamba confirmed a number of times that he wanted to apologise to the patient.

Categorisation of Conduct

1. The offending conduct was the meeting with the patient outside a clinical setting and the various Facebook communications sent by Mr Masamba to the patient. Such conduct involved a breach of trust with a vulnerable patient.  The consequences of Mr Masamba’s behaviour was that the patient felt scared and uncomfortable.

2. The conduct amounts to a breach of professional boundaries and was conduct which fell substantially below the standard expected of him having regard to his training and experience.  It was conduct in breach of the various professional codes and guidelines for Nurses.

3. Mr Masamba has appropriately admitted that his conduct amounted to professional misconduct as that term is defined in s 5 of the National Law.

Sanction

1. The Tribunal, having found Mr Masamba has behaved in a way that constitutes professional misconduct, must decide the appropriate sanction to be imposed.[3]

   [3]HO Act, s 107(3).

2. Notwithstanding the agreement of the parties, the ultimate decision as to sanction rests with the Tribunal.[4]  It should not, however, depart from an agreed position unless it “falls outside the permissible range of sanction for the conduct.”[5]  The agreement reached between the parties was for a reprimand, a suspension of registration for a period of three months, and for conditions to be imposed on Mr Masamba’s registration requiring him to undertake a program of education addressing professional boundaries.

   [4]See, for example, Medical Board of Australia v Martin [2013] QCAT 376 and Medical Board of Australia v Fitzgerald [2014] QCAT 425.

   [5]Medical Board of Australia v Fitzgerald [2014] QCAT 425.

3. The guiding principle of the Tribunal in determining sanction is the health and safety of the public.[6]  The purpose of disciplinary proceedings is to protect, not punish.[7]

   [6]HO Act, s 3(1)(a), s 4(1)

   [7]See, for example, Clyne v NSW Bar Association [1960] 104 CLR 186; NSW Bar Association v Evatt [1968] HCA 20; Medical Board of Australia v Dolar [2012] QCAT 271, [30].

4. It is also appropriate for the Tribunal to take into account the maintenance of professional standards, the preservation of public confidence in the profession and the need to deter Mr Masamba and other health practitioners from similar conduct.[8]  A denunciation of the misconduct “operates as a deterrent to the individual concerned, as well as to the general body of practitioners”.[9]

   [8]Ooi v Medical Board of Queensland [1997] 2 Qd R 176, [177]; Attorney-General v Bax (1999) 2 Qd R 9, [22]; Queensland Nursing Council v Dodd [2010] QDC 220.

   [9]Health Care Complaints Commission v Do [2014] NSWCA 307, [35].

5. A practitioner’s insight and remorse into their misconduct will be relevant in determining the appropriate orders.[10]

   [10]Pharmacy Board of Australia v The Registrant [2015] QCAT 477, [30]; Medical Board of Australia v Blomeley [2018] QCAT 163.

6. In his interview with investigators, Mr Masamba initially denied having communicated with the patient by Facebook.  He said the messages may have been sent by his wife though later admitted to sending some.  He maintained that the contact was initiated by the patient and did not accept that he had asked for her contact details.  He has continued to maintain that position.

7. However, as soon as Mr Masamba had made certain admissions, he was apologetic and acknowledged his wrongdoing; he wanted to send the patient an apology, he wanted to say he was sorry and was happy to meet with her if she wanted.

8. In his affidavit of 5 July 2018 in these proceedings, Mr Masamba admitted to sending all the messages.

9. Mr Masamba has, on balance, co-operated with the applicant in the course of these proceedings.  While Mr Masamba’s initial less than full admissions may have some bearing on the Tribunal’s decision, Mr Masamba must be given the benefit of the remorse shown at the interview and his approach in these proceedings has enabled the resolution of the proceedings without the need for the complainant to give evidence in person and be cross-examined. [11]

   [11]Pharmacy Board of Australia v The Registrant [2015] QCAT 477, [32].

10. At the time of the first referral of 20 December 2017, Mr Masamba was also charged with inadequate record keeping by failing to maintain clear and accurate records during the second consultation with the patient on 19 October 2015. Mr Masamba’s supervisor could not find any evidence of notes taken during that consultation and the patient stated that he did not take any.  Mr Masamba asserted that he took clinical notes on a notepad but those notes were misplaced before they could be typed into an electronic record.  The amended referral of 6 July 2018 removed that charge.  In the statement of agreed facts that remains an issue in dispute.

11. Despite the fact that the issue remains in dispute, the solicitor for the Health Ombudsman Ms Reibelt, submitted that the Tribunal should take into account the absence of clinical notetaking and that it formed part of the overall boundary violation. She said that it demonstrated that Mr Masamba wished to pursue a relationship with the patient on a personal level.

12. Neither the patient or the supervisor or Mr Masamba gave oral evidence at the hearing.  That was entirely appropriate given the position that had been reached.  But it has the result that, absent some other indication of which person is telling the truth, the Tribunal is unable to make a finding to the requisite standard of proof.[12]  In any event, given the nature of these proceedings and the position reached between the parties, the Tribunal does not consider it is necessary to make the finding which would be necessary to support the submission made.

    [12]Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.

13. Further, for the same reasons, the Tribunal cannot and does not think it is necessary to make any finding so as to resolve the conflict in evidence as to how the patient and practitioner came to exchange Facebook messages.

14. In the parties’ joint submissions, it was noted that the offending conduct occurred in 2015.  As at the time of the hearing, the conduct had taken place nearly three years ago.  The parties submitted that in this case the delay is to Mr Masamba’s advantage as he has had no further transgressions since the conduct.  He continues to practice as a registered nurse, with the affidavit filed by a colleague, who had been made aware of these proceedings, describing him as always carrying himself appropriately, as competent and his job being a demanding one.

15. The parties referred the Tribunal to three decisions in support of their proposed orders:  Nursing v Midwifery Board of Australia v Tainton,[13]Nursing v Midwifery Board of Australia v Clydesdale[14] and Medical Board of Australia v Holding.[15]

    [13][2014] QCAT 161.

    [14][2013] QCAT 191.

    [15][2014] QCAT 632.

16. Those case authorities show the seriousness with which the tribunal treats boundary violations.  Any form of social contact with a patient will not be tolerated.  It is inconsistent with the importance of having a system of independent health care professionals, particularly in the mental health sphere given the power imbalance and the vulnerability of patients.

17. The Tribunal considers the agreed sanction to be within the permissible range and that it is appropriate that the Tribunal make the orders as agreed by the parties.  Guided by the assessors, the Tribunal has made minor variations to the conditions proposed.

Orders

1. Accordingly, the orders of the Tribunal will be:

   1.Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the respondent is found to have 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)(d) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent is suspended for a period of 3 months, to take effect from a date to be agreed between the Health Ombudsman and the respondent provided such date is not later than three months from the date hereof.

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

   5.Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies.

   6.Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), for the purposes of Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland), the relevant review period for the conditions is 12 months, commencing from the date hereof.

   7.Each party bear their own costs.

Schedule of Conditions

1. Mr Masamba must undertake and successfully complete a program of education, approved by the Nursing and Midwifery Board of Australia or the Australian Health Practitioner Regulation Agency (AHPRA), addressing boundary violation issues.

1. Within 28 days from the date hereof, Mr Masamba must make a nomination to AHPRA, to undertake either one on one education or a formal education course (the education), using such forms as required by AHPRA.

2. Within 28 days of receipt of the nomination, the Board must notify Mr Masamba of its decision in relation to the nominated course, with any refusal of approval to be on reasonable grounds.

3. The course must consist of a minimum of 8 hours of education. 

4. Mr Masamba must complete the education within 3 months of receipt of the notice of approval of the education from the Nursing and Midwifery Board of Australia or AHPRA, or such extended period as may be agreed. 

5. Within 28 days of the completion of the education, Mr Masamba must provide to AHPRA: 

   (a)Evidence of successful completion of the education; and

   (b)A report demonstrating that he has reflected on the issues that gave rise to the imposition of the condition to undertake education and how he has incorporated the lessons learnt in the education into his practice.

6. Within 21 days’ notice from the date hereof, Mr Masamba must provide to AHPRA, on the approved form, the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at his current place of employment. In providing this form, Mr Masamba acknowledges that: 

   (a)AHPRA will contact the senior person and provide them with a copy of these orders or confirm that the senior person has received a copy of these orders from him; and

   (b)he will be required to provide the same form within seven days of the commencement of employment at each and every subsequent place of employment during the next 12 month period from the date hereof. 

7. All costs associated with compliance with these conditions are to be borne by Mr Masamba.