Health Ombudsman v Mcgilvray, Adam Kenneth Graeme
[2023] QCAT 184
•23 MARCH 2023
[2023] QCAT 184
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
REID, Judicial Member
Assisted by:
MS ASHCROFT
MS BANWELL
MR LEWISNo OCR 058 of 2022
HEALTH OMBUDSMAN Applicant
v
MCGILVRAY, Adam Kenneth Graeme Respondent
BRISBANE
THURSDAY, 23 MARCH 2023 JUDGMENT
[1]JUDICIAL MEMBER: The respondent was, in October 2021, a 36-year-old father of four and a registered nurse, having completed his Bachelor of Nursing degree only in 2020. He has, today, outlined some of his background. He says that he had suffered a significant history of mental health issues during his youth, but prior to commencing nursing studies worked principally in support work/aged care-type employment. It is of interest that both of his parents had a history of working as nurses. The respondent worked in that capacity in 2021, at a private clinic in South East Queensland. The clinic was an adult mental health clinic.
[2]On the 21st of August 2021, the respondent was given what is described as the first and final warning after a patient complained of inappropriate comments that he had made. I otherwise do not know the facts of that offending and it is not here important. What is important is the giving of the warning. The respondent, when aware of the patient’s history of post-traumatic stress disorder, alcohol abuse, depression, anxiety and thoughts of self-harm, exchanged phone numbers with her when she was discharged from the clinic, albeit in June 2021, and so prior to the warning having been given. He subsequently exchanged a number of personal texts, including passages about catching up for coffee. Following the giving of the warning however, the patient contacted him by text. As a result, they met at a pub where she drank gin and tonic. During this meeting he kissed her. They were there for about one hour. This event occurred on the 30th of September 2021.
[3]On the 3rd of October, she again texted him. He went to her place. The schedule of facts says she was intoxicated. They there had consensual sex and he then dropped her again to a pub.
[4]Following the complaint made on the 5th of October by a friend of the patient to the Health Ombudsman, the respondent met, also, the clinic’s CEO/Director of Nursing. In that meeting he admitted having sex with the patient. The clinic then also reported the matter to the Health Ombudsman. He was, on that day, dismissed from his employment.
[5]The Health Ombudsman, on the 17th of November, proposed immediate registration action, prohibiting the respondent from having contact with female patients.
[6]After his employment with the clinic had terminated, he initially obtained work as a nurse with a general practitioner. But upon the imposition of the condition of his employment, prohibiting contact with female patients, he too left that work. He was then unemployed it seems for the whole of 2022. In early 2023, he has obtained employment driving trucks with a transport company.
[7]He is, as I have said, the father of four children. Two are employed. One is a support worker, and one in child care. But the two younger ones, aged 15 and 13, are still at school. His wife works in the children’s services sector. He pays her some money towards the support of his children.
[8]I might interpose that after the Health Ombudsman had determined to impose the condition precluding him from contact with female patients, on the basis that he was at risk to them, the respondent, very surprisingly, submitted that he was not at risk. In my view this indicates a lack of insight on his behalf and suggests to me that he is, without appropriate training, education and psychological rehabilitation, an ongoing risk of re-offending.
[9]The respondent remains subject to such a limitation on his registration at this time.
[10]The respondent has filed no evidentiary material or made submissions to me, although there is a response to the original disciplinary proceedings’ referral dated the 3rd of June 2022, which I have taken into account, together with his statement of circumstances, that he made to the tribunal in the course of this hearing.
[11]I have concluded that his conduct clearly amounts to professional misconduct. He does not dispute this. A reprimand ought also be imposed; again, he does not dispute this. I also accept the submission of the Health Ombudsman that conditions, as per an amended schedule attached to those submissions, is appropriate. I shall, in due course, read those conditions into the record as part of the order. In so deciding, I accept the submissions of the applicant.
[12]In respect of comparable cases, I think those of Nursing and Midwifery Board of Australia v Sandra Garie [2019] SAHPT 4, Nursing and Midwifery Board of Australia v O’Halloran (Review and Regulation) [2019] VCAT 1219, and perhaps Health Ombudsman v HSK [2018] QCAT 419, support the imposition of a period of suspension of 12 months. I am, in this case, mindful of a matter I referred to earlier, namely the respondent’s failure to acknowledge and recognise his danger to mental health patients. I earlier referred to his apparent acceptance of that position and his state of remorse and contrition at this stage. This supports the view that perhaps with time to reflect, his position in that regard has changed.
[13]Men, and I say that because it is, while not universally the case, principally, men who offend in respect of matters such as these, need seriously to think about their obligations as a professional nurse when engaged with mental health patients, and in particular female mental health patients. As I hope I have made clear to Mr Mcgilvray in the course of the hearing, these matters are taken seriously by the Tribunal, are taken serious by the community and can quite readily result in significant criminal sanctions in the event that a patient’s mental health condition is such that their capacity to consent might be adversely affected. I accept that there’s no suggestion that was the case in this matter, but I think it is a demonstration of the danger that men who are nurses and who engage in conduct such as this put themselves in.
[14]In the circumstances, I will make the following orders:
1.Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act, the Tribunal decides the respondent has behaved in a way that constitutes professional misconduct;
2.Pursuant to section 107(3)(a) of the Health Ombudsman Act, the respondent is reprimanded;
3.Pursuant to section 107(3)(d) of the Health Ombudsman Act, the respondent’s registration is suspended for twelve (12) months;
4.Pursuant to section 107(3)(b)(i) of the Health Ombudsman Act, conditions are imposed on the respondent’s registration (as per the attached Schedule of Conditions);
5.Pursuant to s109(2) of the Health Ombudsman Act, Part 7, Division 11, subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions.
6.Pursuant to s109(3) of the Health Ombudsman Act, 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.Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act, the decision of the Health Ombudsman to impose conditions on the respondent’s registration dated 1 December 2021 is set aside;
8.Each party must bear their own costs of the proceedings.
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