Health Ombudsman v Smith (No. 2)

[2024] QCAT 376

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Smith (No. 2) [2024] QCAT 376

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

ALAN JAMES SMITH

(respondent)

APPLICATION NO/S:

OCR 39 of 2022

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 September 2024

HEARING DATE:

1 February 2023

FURTHER SUBMISSIONS:

1 August 2023 and 14 August 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Reid
Assisted by:
Dr K Forrester, Nursing Panel Member
Ms M Barnett, Nursing Panel Member
Mr M Halliday, Public Panel Member

ORDERS:

1. Pursuant to s 107(2)(b)(iii) 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), conditions are imposed on the respondent’s registration in the form of ‘Annexure A’.

4.     The parties have leave to request the matter be listed for an oral hearing in the event the parties discover any difficulty with these orders.

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 —where the Tribunal made findings as to facts and characterisation and sought submissions from the parties as to conditions to be imposed —conditions now imposed on the respondent’s registration

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Health Ombudsman v Smith [2023] QCAT 95

APPEARANCES & REPRESENTATION:
Applicant:	J R Jones instructed by the Office of the Health Ombudsman
Respondent:	S Robb instructed by QNMU Law

REASONS FOR DECISION

1. I delivered judgement in this matter on 1 February 2023,[1] indicating I proposed to make orders that the respondent’s conduct the subject of the proceedings amounted to professional misconduct, reprimanding him and imposing conditions on his registration as a nurse.

   [1]Health Ombudsman v Smith [2023] QCAT 95.

2. Those conditions that I foreshadowed were that he be prohibited from providing any health service to females for a minimum period of three years and in any case until he had completed further education and training with Dr Wendy McIntosh (who had provided a report used in the Tribunal Hearing relating to education and training she had already provided) or some other appropriate professional. The purpose of the education was, of course, so as to reduce the risk of future misconduct by educating the respondent about issues concerning boundary violations. In administering the Health Ombudsman Act (the Act), health and safety of the public is paramount.

3. Both parties filed submissions regarding the terms of such conditions. The Health Ombudsman (applicant) submits that in addition to an order pursuant to s 107(3)(b) of the Act prohibiting the respondent from providing health services to females for a period of three years, it is also appropriate to order that conditions be imposed as per a schedule attached to their submissions.

4. The respondent indicates that he opposes a number of the proposed conditions and has attached to his submissions a proposed amended schedule.

5. There are two significant differences between the proposals of the applicant and the respondent. The first concerns when the further education should be undertaken. The applicant submits that the training should not be undertaken until a time closer to the date when the respondent is entitled to first see female clients that is closer to 3 years after my order prohibiting the respondent from providing health services to females made on 1 February 2023. The respondent submits that to delay the education in that way is undesirable because to do so may in some way limit the effectiveness of that training and could delay his eligibility to have the condition removed (presumably because any delay in commencing the further education may mean that such education is not completed by 1 February 2026, being three years after my initial orders).

6. Before determining that question it is in my view, helpful to consider the second area of dispute.

7. The applicant submits that after his return to having female patients, and so after completion of any education requirement that I might order, the respondent be supervised by another registered health practitioner when practising as a registered nurse and having contact with female patients for a period of at least three months. It also submits the proposed supervision is to be:

   (a)daily; and

   (b)by a supervisor who was always present in the workplace and available to observe and discuss matters with the respondent.

8. Additionally, it is proposed by the applicant that the respondent be mentored by a registered health practitioner for a minimum of 24 one hour sessions over a two-year period after the respondent returns to having contact with female patients.

9. The respondent opposes the imposition of such supervision and mentoring conditions submitting that they are outside the order contemplated by the tribunal in February 2023, are unduly prohibitive, ill-suited and redundant. He submits, in paragraph 10 of his written submissions that “any conditions that are required when the respondent returns to practice in an environment that includes female patients should be crafted to meet whatever residual risk the respondent is assessed by the Board to pose at the relevant time under ss 125, 126 or 127 of the Health Practitioner Regulation National Law (Queensland)”.

10. In my view the critical evidence in the hearing that bears on this issue is that referred to in paragraph 28 of my initial judgement, namely that Dr McIntosh concluded that while the respondent had benefited from education he had already undertaken with her:

    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.

11. It is to my mind clear that the supervision Dr McIntosh is there speaking of, namely, “at least monthly professional supervision specific to boundaries” is not the sort of continued supervision proposed by the applicant. So too however, it could not be said to be outside the orders contemplated by me in the judgement of 1 February 23. Although Dr McIntosh uses the word “supervision” it seems to me she is really talking of education and training about boundaries to be delivered after the respondent returns to working with any female patients. I propose to impose such a condition, to be instigated upon the respondents first working with female patients, which cannot be until on or after 1 February 2026.

12. In my view, the making of such an order effectively disposes also of the first area of dispute. In circumstances where there is to be such ongoing education, at least monthly, and for at least six months thereafter, the need for any delay in his commencing the initial training is obviated. What he learns in the course of that training will no doubt reinforce the boundary violation training provided by Dr McIntosh or another professional. Such education with Dr McIntosh or with another suitable professional can commence immediately.

13. I will therefore order as follows:

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

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

16. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), conditions are imposed on the respondent’s registration in the form of ‘Annexure A’.

17. The parties have leave to request the matter be listed for an oral hearing in the event the parties discover any difficulty with these orders.

Schedule of Conditions

1. The practitioner must not practise as a registered nurse until approved practice locations are published below:

   The following are approved practice locations: No practice locations approved to date.

2. After publication of approved practice locations the practitioner must not have any contact with female patients until such time as the practitioner has successfully completed the requirements of the agreed further education detailed in conditions 5 - 8, and must only practise at approved practice locations.

   For the purposes of this condition, the following definitions apply:

   ‘Practise’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a registered nurse in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a registered nurse in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the nursing profession.

   ‘Practice location’ means any location where the practitioner practises the profession including any place where the practitioner:

   (a)       is self-employed

   (b)       shares premises with other registered health practitioners

   (c)is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement

   (d)provides services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, whether or not the practitioner receives payment from an entity for the services, or

   (e)provides professional services at the residential premises of a patient.

   ‘Patient’ is defined as any individual awaiting, requiring, or receiving the professional services of the practitioner or a registered health practitioner within the same place of practice as the practitioner and any spouse, partner, parent, family member or guardian/carer of this individual.

   ‘Contact with a patient’ includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.

   ‘Female’ is defined as any individual whose biological sex is that of a female, as well as all individuals whose gender identity or gender expression is that of a female.

3. The practitioner must comply with the Gender-based restriction protocol in force at the date these conditions are imposed and then as amended from time to time.

4. Within three (3) business days of notice of these conditions being imposed the practitioner is to provide acknowledgement, on the approved form (GBR-1) that:

   (a)they have read and understood the Gender-based restriction protocol

   (b)they are aware that they are not permitted to practise until such time as approved practice locations are published

   (c)they understand the definition of ‘patient’, ‘practise’, ‘practice location’, ‘male’, ‘female’, and ‘contact’ as detailed in this condition; and

   (d)they are aware of the actions Ahpra may take for the purposes of monitoring compliance with the gender-based restriction.

Education

1. The practitioner must undertake and successfully complete a further program of education, approved by the Nursing and Midwifery Board of Australia ('the Board') and including a reflective practice report, in relation to ethical decision making and boundary violations including strategies to ensure communication with patients only occurs within the clinical context.

2. The practitioner must, on the approved form (HPN24) nominate for the approval by the Board an education course, assessment or program (the education) addressing the topics required. The practitioner must ensure:

   (a)the nomination includes a copy of the curriculum of the education;

   (b)the education consists of a minimum of 8 hours including ethical decision making and boundary violations including strategies to ensure communication with patients only occurs within the clinical context; and

   (c)the education contains a formal assessment component in relation to ethical decision making and boundary violations including strategies to ensure communication with patients only occurs within the clinical context.

3. The practitioner must complete the education within 12 months of the notice of the Board's approval of the education.

4. Within 28 days of the completion of the education, the practitioner is to provide to Ahpra:

   (a)evidence of successful completion of the education;

   (b)a reflective practice report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to this condition and how the practitioner will incorporate the lessons learnt in the education into the practitioner's practice; and

   (c)evidence of having undertaken and successfully completed the formal assessment component of the education.

Supervised practice

1. Within 7 days of returning to have contact with female patients, the practitioner must advise the Board of that and nominate a supervisor (whether Dr McIntosh or another appropriate professional) who is to provide to the practitioner at the practitioner’s own expense, professional education and training, at least monthly, specific to the conditions, for a period of 6 months or such time as to be extended as the practitioner’s supervisor may determine is appropriate.

2. That supervisor is to advise the Board of such further education and training, if it is required, and provide to the Board a report detailing the practitioner’s progress with the education and training. Such a report will be at the practitioner’s own expense.

Other requirements

1. Within 21 days' notice of the imposition of these conditions the practitioner must provide to Ahpra, on the approved form (HPC), 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 each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the practitioner's registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:

   (a)within seven days of the commencement of practice at each and every subsequent place of practice; and

   (b)within seven days of each and every notice of any subsequent alteration of these conditions.

2. All costs associated with compliance with the conditions on their registration are at the practitioner’s own expense.

Review of conditions

1. Subdivision 2, Division 11, Part 7 of the National Law applied to these conditions.

2. Pursuant to section 196(3) of the National Law and for the purposes of Subdivision 2, Division 11, Part 7 of the National Law, the relevant review period for the conditions is 3 years.