Health Ombudsman v Smith
[2023] QCAT 95
•1 February 2023
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: Health Ombudsman v Smith [2023] QCAT 95 PARTIES: THE HEALTH OMBUDSMAN
(applicant)
v ALAN JAMES SMITH
(respondent)
APPLICATIONNO/S: OCR039-22 MATTERTYPE: Occupational regulation matters DELIVEREDON: 1 February 2023 HEARINGDATE: 1 February 2023 HEARDAT: Brisbane DECISIONOF: Judicial Member D Reid ORDERS The conduct of the respondent constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).
pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
The following condition is imposed on the respondent’s registration as a nurse, pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld):
(a) The respondent is prohibited from providing any health service to females in an unpaid or paid capacity, and in a clinical or non-clinical capacity, until such time as he has completed the agreed upon further education, and in any case for a minimum period of three years.
CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY
PROCEEDINGS – where the respondent is a registered nurse – where the respondent seriously violated a boundary with a vulnerable female patient – where the respondent failed to acknowledge and accept his misconduct when challenged by his employer and the Health Ombudsman – whether the respondent should be reprimanded – whether the respondent should be disqualified from registration as a nurse – whether the respondent should be prohibited from
providing health services – whether in the alternative the
respondent should have conditions imposed on his registration as a nurse
Health Ombudsman Act 2013 (Qld) ss 4, 107
Briginshaw v Briginshaw (1938) 60 CLR 336
Health Ombudsman v Bothwell [2020] QCAT 393
APPEARANCES&REPRESENTATION: Applicant:
JR Jones instructed by the Office of the Health Ombudsman
Respondent:
S Robb instructed by QNMU Law
REASONS FOR DECISION
Background
The Health Ombudsman seeks orders against the respondent, who was at all times a Registered Nurse, arising from his engagement in serious and protracted boundary violations with a vulnerable female patient. The proceedings also involve the respondent’s failure to acknowledge and accept his misconduct when challenged by both his employer and the Health Ombudsman.
The respondent now accepts his misconduct and also accepts that it is properly characterised as professional misconduct. The issue before me concerns the appropriate order to impose in respect of his misconduct, and in particular, whether to cancel his registration as a Registered Nurse and to prohibit him from applying for registration for a period, and also whether to impose conditions prohibiting him from treating female patients.
The facts and circumstances of the matter is set out in an agreed statement of facts.
The respondent was born on 15 March 1981 and was 39 at the time of his misconduct. He obtained a Diploma in Higher Education Nursing Studies from Lancaster University in England and was first registered as a nurse in Australia in November 2008.
The respondent worked as a Clinical Nurse Consultant with a Youth Outreach Service of the West Morton Hospital (WMH). In that capacity, he was responsible for the care of an 18-year-old female patient from 17 February 2020.
The schedule of facts records:
“the patient had a diagnosis of chronic and severe mental health difficulties and physical health compromise. The patient had a significant history of suicidal behaviour, anorexia nervosa, deliberate self-harm, depression, anxiety, post-traumatic stress disorder, borderline personality disorder, attachment disorder and polysubstance abuse.
The patient had a significant history in both crisis and planned hospital presentations and admissions.
The respondent was aware of the patient history and vulnerabilities. The respondent provided the patient with community-based mental health treatment which included intensive, developmentally appropriate community-centre, mental health interventions
and ongoing assessment, risk assessment, crisis management, safety planning treatment, rehabilitation and support.”
I shall refer to the facts of his misconduct shortly. As a result of the misconduct, the respondent was suspended from his employment on 19 March 2021 and resigned shortly thereafter on 7 April 2021.
He gave an undertaking to the Board to not practice as a Registered Nurse from 13 April 2021 and subsequently, has had conditions on his registration that imposed a prohibition on his having contact with female patients. The respondent commenced work as a Disability Carer/Support Worker with Russell Healthcare on 22 June 2021, and also works as a Casual Support Worker for Magnus Health. In each of those areas of employment, he is confined to working with men.
The Misconduct
From the 14th to the 23rd September 2020, the respondent made inappropriate sexual comments to his vulnerable patient. On 23 September 2020, the respondent and the patient engaged, twice, in consensual sexual intercourse. The respondent and the patient phoned and texted one another on numerous occasions thereafter. During one conversation he told her to “deny everything” and said that “nothing had happened”. He also on one occasion had her perform oral sex in a car. It is uncertain when this was, but it seems to have been shortly after the two incidences of sexual intercourse on 23 September 2020.
On 24 September 2020, the patient disclosed the sexual conduct to WMH authorities. The respondent was directed by WMH to have no further contact with the patient. Contrary to this direction, the respondent both phoned and texted the patient on numerous occasions between the 25th September and 28th December 2020.
On 9 October 2020, WMH issued the respondent with a show cause notice alleging:
(i) the respondent has engaged in consensual sexual intercourse with the patient;
(ii) the respondent had engaged in inappropriate behaviour towards the patient on more than one occasion; and
(iii) the respondent failed to comply with the direction to not have any contact with the patient.
The respondent continued to phone and text the patient many times, even immediately after that show cause notice.
On 11 December 2020, the respondent, through his lawyers, denied ever having sexual intercourse, denied any contact after 25 September 2020 and denied any inappropriate conduct with the patient. He in fact had phone contact on both the 10th and 11th of December 2020 and thereafter, despite the lawyers’ denial, the contact continued until 20 January 2021.
On 30 January 2021, the patient died due to a suspected drug overdose.
On 24 March 2021, the respondent attended an interview with the Office of Health Ombudsman (‘the OHO’). Although advised on his obligation not to provide false or misleading objections, he initially denied any sexual intercourse with the patient on 23 September 2020. He also denied any telephone conversations with the patient on
the evening of that day and denied any contact with the patient after being directed by his employer not to have contact with her.
Following an initial complaint by the OHO on 12 October 2020, a decision was made on 25 November 2020 to investigate the respondent’s conduct. Due to insufficiency of evidence, a decision was made on 21 December 2020 to finalise the investigation.
After the patient’s death, a further notification of the respondent’s conduct was made.
Considerations
The Health Ombudsman Act (‘the Act’) provides that the main principle of the administration of the Act is that the health and safety of the public are paramount.1 The applicant bears the onus of proof and must prove the relevant facts and matters on the balance of probabilities, having regard to the Briginshaw2 standard.
I find that the respondent engaged in very significant boundary violations by his consensual relationship with the patient, in particular by his having sexual intercourse with her on 23 September 2020 and by his extensive contact with her from 14 September 2020 until January 2021. I also find that he attempted to deceive WMH by dishonestly denying his misconduct. He did likewise to the OHO.
I find this misconduct amounts to professional misconduct. It is to a very high degree below the standard expected of a Registered Nurse. This is especially so having regard to the patient’s high level of vulnerability and the disparity in their ages and experience. His departure from the required standard is very significant. Such a finding is not disputed.
The respondent's counsel submits the following matters should be taken at account in the respondent’s favour:
(i) the impugned conduct was “isolated”;
(ii) the impugned conduct was not criminal;
(iii) the restrictions on his registration since 27 April 2021, i.e. that he not have any contact with female patients, and the making of the interim prohibition order to similar effect on 25 August; and
(iv) the respondent has demonstrated contrition, remorse and insight.
It was submitted that these factors make it unnecessary to cancel the respondent’s registration for any further period of time. The applicant seeks an order that his registration be cancelled and he be disqualified from applying for registration for a period of 2-3 years hereafter. Further, the applicant seeks an order that the respondent be prohibited from providing health services to females in either a paid or unpaid capacity, and either a clinical or non-clinical capacity, until he has obtained registration as a health practitioner.
It is an important feature of the respondent’s misconduct that he knew that the patient, a young 19-year-old female, had chronic and severe mental health difficulties and a history of suicidal behaviour and self-harm. Furthermore, he took steps to avoid detection by encouraging the patient to lie and by himself lying to both the WMH and
1 Health Ombudsman Act 2013 (Qld) s 4(1).
2 Briginshaw v Briginshaw (1938) 60 CLR 336.
to the OHO. The respondent admitted his conduct only when confronted with evidence of his misconduct and following earlier denials.
There were three other aspects of the matter I wish to mention.
The transcript of the respondent's interview with the OHO on 24 March 2021 illustrates the very gross nature of the respondent's transgression of his professional obligations to the patient. It is apparent that he knew the patient was extremely vulnerable. He had known the patient from about 2015, when she was only about 14 years of age. He knew both her parents had significant issues. He knew the patient had alleged a history of being raped and of drug overdoses with admission to intensive care units in a coma. He also knew of her history of self-harm and suicidal ideation. He described his relationship with the patient as “almost like a brotherly/fatherly kind of rapport”. He had been placed as her carer because of this pre-existing relationship he had with her.
His interview with the OHO also illustrates his deception and lack of candour both to his employer and the OHO. He did not admit his wrongdoing until confronted with evidence contrary to his earlier assertions. I think it fair to say his admission was prised out of him.
Having said that however, there are two further issues that, in my view, are of importance and arose only on the Hearing of the matter. They were not known at the time of the preparation of the Hearing Brief and were not referred to in the parties’ written submissions.
First, a report of Dr Wendy McIntosh of 4 November 2022 was tendered. Unfortunately, no CV of Dr McIntosh was tendered to allow me to become familiar with her professional background and experience. Her qualifications show however, that she is a highly qualified health professional. Her report shows the respondent had completed 18 hours of education with her over a significant period from 13 December 2021 to 1 November 2022. He had also completed work on his own. The work he did with her was, she says, “quite challenging and confronting”. She identified issues of boundary violations, ethics and honesty, and trust. Ultimately, Dr McIntosh concludes that the respondent “benefited professionally and personally” from the process he undertook with her. She opines that it will be important that he has at least monthly professional supervision, specific to boundaries, for at least six months when he returns to nursing, with the option of continuing this on a long-term basis.
Unfortunately, I did not have the opportunity to hear evidence from Dr McIntosh, which would have been useful. Indeed I did not hear from the respondent in relation to the treatment provided. To a bystander like myself, 18 hours of such treatment over almost 12 months does not seem particularly extensive having regard to the very significant breaches of professional obligations with which I am concerned. But I accept that I myself have no experience in treatment and education in such matters. By comparison, Dr McIntosh has extensive such experience.
Importantly, the respondent attending upon her is an indication that he himself recognises that his misconduct was serious and needed to be addressed. Without his attendance on Dr McIntosh, I would have had no difficulty whatsoever in concluding the respondent's registration should have been cancelled and disqualifying him from applying for re-registration for a not insignificant period.
The second issue of importance that arose is that in November 2022 his current employer, where he has worked as a Disability Carer and Support Worker working with male patients from 22 June 2021, has offered him work as a Registered Nurse, working again only with male patients. I should say that the respondent is a highly qualified nurse. The parties accept that his skill set is one that is not easily found.
The respondent’s counsel submits, as I've said, that it is unnecessary to cancel his registration as a nurse. Whilst he submitted that the conduct was of an isolated nature, I do not accept that to be so. Whilst he had intercourse only on 23 September 2020, the respondent engaged in a protracted personal relationship until shortly before her death. He continued to contact her by phone and text, and in person. He did so regularly, despite directions not to do this. He denied doing so, both personally and through his lawyer.
It is also said on his behalf that the impugned conduct was not criminal. I accept it was consensual, although the vulnerability of the patient is a very concerning aspect of the matter.
His counsel relies on the restrictions on his registration from 27 April and prohibition imposed on 25 August 2021 as being significant penalties. In circumstances where he has worked as a disability/support worker since the 22 June 2021 and also a casual support worker, this restriction has not been particularly disabling. In all, he was off work only from 7 April until 22 June 2021. There is no evidence before me as to the financial consequences of these matters.
Thirdly, counsel relies on his demonstrated contrition, remorse and insight. There is in the agreed statement of facts little to allow me to conclude that he demonstrated significant contrition, remorse and insight, at least initially. But it seems that his attendance on Dr McIntosh and his agreement to the schedule of facts shows that it he has more recently developed a level of remorse. That is not surprising, especially as the patient appears to have died from a drug overdose, and at a time when he was continuing to have interaction with her.
The appalling nature of the respondent's transgressions, his experience with life as a 39-year-old nurse, her being a vulnerable mental health patient, as well as known to him, and his telling the patient to “deny everything” and that "nothing happened” are significant, as was his ongoing denial of his conduct at the time of her death. They do not support a view that he had contrition or remorse at that time. Only after her death and then only when presented with evidence of his misconduct did he allow himself to admit these events.
Counsel’s written submissions in support of the respondent does not, in my assessment, properly take account of the patient's extreme vulnerability, something which the applicant emphasises.
Judicial Member Robertson observed in Health Ombudsman v Bothwell [2020] QCAT 393 at 39:
A fair analysis of these various cases does not support the proposition that in every case where a health practitioner engages in sexual boundary violations with a patient, during or after the cessation of the therapeutic relationship, a cancellation or a suspension should always follow.
I also do not accept that the applicant overemphasises the respondent’s initial reluctance to make full admissions about his conduct or the effect of the response referred to on his current fitness to practice or the risk the respondent poses.
I accept the report of Dr McIntosh, the respondent’s offer of employment as a nurse, and the agreement to the schedule of facts are important. I accept the respondent continues to pose a significant risk to female patients.
Conclusion
The main principle for administering the Act is that the health and safety of the public ultimately is paramount.3 I am not persuaded that it is necessary to cancel the respondent's registration. I have come to that conclusion, with some reluctance, having regard to the very gross misconduct which occurred and considering the patient's extreme vulnerability, of which the respondent was well aware. I have concluded however, that cancellation is not required because:
(i) the conduct was consensual;
(ii) the respondent appears now to have accepted his conduct;
(iii) the respondent has addressed what motivated him to offend (and I use that term in describing his professional misconduct, not to suggest criminal misconduct) by attending upon Dr McIntosh;
(iv) because the respondent has been employed, albeit in a different capacity, from June 2021 and must be performing satisfactorily because of the offer of employment as a Registered Nurse in November 2022; and
(v) the health and safety of the public can be protected by the imposition of conditions on his registration designed to ensure he does not have female patients under his care for some extended period and that he does not do so until he has completed further education and training with Dr McIntosh, or some other person as may be appropriate.
I therefore propose to circulate this draft judgement, and to invite the parties to reach agreement or make submissions as to the form of order for further education in particular.
Orders
Subject to those submissions, the findings and orders of the Tribunal are as follows:
The conduct of the respondent constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld).
Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
The following condition is imposed on the respondent’s registration as a nurse, pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld):
(a) The respondent is prohibited from providing any health service to females in an unpaid or paid capacity, and in a clinical or non-clinical capacity,
3 Health Ombudsman Act 2013 (Qld) s 4(1).
until such time as he has completed the agreed upon further education, and in any case for a minimum period of three years.