Nursing and Midwifery Board Australia v Montero
[2015] QCAT 316
•17 July 2015
| CITATION: | Nursing and Midwifery Board Australia v Montero [2015] QCAT 316 |
| PARTIES: | Nursing and Midwifery Board Australia (Applicant) |
| v | |
| Bella Montero (Respondent) |
| APPLICATION NUMBER: | OCR218-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Deputy President O’Callaghan Assisted by Dr Kim Forrester Dr Jane Truscott Mr Brad Taylor |
| DELIVERED ON: | 17 July 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Bella Montero is reprimanded in accordance with s 192(2)(a) of the Health Practitioners Regulation National Law (Queensland). 2. Bella Montero’s registration be suspended for 12 months from the date of these orders. 3. The following conditions are imposed upon Bella Montero’s registration: a. Bella Montero must complete within 10 months of the date of the orders, a course of education addressing professional boundaries and ethics, such course to be nominated by Bella Montero and approved in writing by the Nursing and Midwifery Board Australia. b. Bella Montero must provide a written report from the provider of the course referred to in order 3(a) above: i. confirming successful completion of the course; and ii. containing the opinion of the provider as to the likelihood of Bella Montero engaging in professional boundary violations in the future, within 30 days of the completion of the course. c. Upon expiration of the suspension of Bella Montero’s registration referred to in order 2 above, Bella Montero must, for 12 months: i. only provide nursing care under the supervision of a nurse or medical practitioner, (if a nurse, such nurse to be senior to Bella Montero in terms of both years of experience and position) approved by Bella Montero’s employer (the supervisor). The supervisor need not directly supervise Bella Montero provided the supervisor is present at the same facility and is reasonably available to Bella Montero. ii. Bella Montero must cause a written logbook to be kept (and provided to the Nursing and Midwifery Board Australia upon request) recording each shift worked and the name of the supervisor for each shift with each entry to be signed off by the supervisor. d. Bella Montero must, within two business days of gaining employment as a nurse, notify the Nursing and Midwifery Board Australia in writing of: i. the name and address of the employer; ii. the address of her place of employment as a nurse; and iii. the position description applicable to her position with her employer. e. Bella Montero must notify the Nursing and Midwifery Board Australia, within two business days, of a change in any of the details specified in order 3(d) above. f. Prior to commencing employment as a nurse, Bella Montero must engage the services of a mentor to be nominated by her and approved in writing by the Nursing and Midwifery Board Australia. g. The mentor will determine the frequency and duration of the mentoring, but the frequency will be at least monthly and the duration must be not less than three months. h. Bella Montero must authorise the mentor to provide written reports to the Nursing and Midwifery Board Australia on the following occasions: i. at intervals of three months from the commencement of the mentoring; ii. if the mentor holds a concern about Bella Montero’s ability to safely and competently practice nursing; and iii. if requested by or on behalf of the Nursing and Midwifery Board Australia. i. Bella Montero must authorise both her employer and the mentor to discuss with each other, as they see fit, Bella Montero’s ability to safely and competently practice nursing. j. Bella Montero must, within seven days of commencing mentoring, provide to the mentor a copy of: i. Application filed 25 September 2014; ii. Response filed 19 December 2014; iii. Joint Submissions filed 3 June 2015; iv. A copy of these orders. k. Within seven days of commencing employment, Bella Montero must provide to her employer a copy of the documents referred to in order 3(j) above and a written authority to authorise her employer to report to the Nursing and Midwifery Board Australia about Bella Montero’s ability to safely and competently practice nursing on the following occasions: i. at intervals of three months from the commencement of her employment; ii. if the employer holds a concern about Bella Montero’s ability to safely and competently practice nursing; and iii. if requested by or on behalf of the Nursing and Midwifery Board Australia. l. Bella Montero pay the costs of complying with these orders. m. Bella Montero pay the Nursing and Midwifery Board Australia’s costs on a standard basis as assessed or agreed, within 28 days of receipt of the assessment or agreement. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – DISCIPLINARY – NURSE – where nurse violated professional boundaries – where nurse made false representations – where multiple instances of unprofessional conduct – where parties proposed sanction Health Practitioners Regulation National Law (Queensland), s 3, s 5, s 193 Chiropractic Board of Australia v Brubaker [2015] QCAT 30 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Bella Montero has been an enrolled registered nurse since 2004. In 2011 she was working as a nurse at the Underwood Medical Centre. DT was a 90 year old male patient of the centre. He suffered from dementia and a moderate intellectual disability. Bella Montero agrees with the Nursing and Midwifery Board (‘the Board’) that she engaged in professional misconduct in her dealings with DT.
The Board has referred these disciplinary proceedings concerning that conduct to the Tribunal under s 193 of the National Law.[1]
[1]Health Practitioners Regulation National Law (Queensland).
Bella Montero and the Board have filed a joint submission of agreed facts and proposed sanction for consideration by the Tribunal.
The Conduct
Bella Montero concedes she engaged in the following conduct in August 2011:
· She accepted an appointment as EPA for DT.
· She completed a referral of DT to ACAT in accordance with a direction from a medical officer at the centre.
· In the referral she falsely stated that DT lived with and was cared for by her and her husband and that she was DT’s ‘in-law’, support person and ‘granddaughter-in-law’.
· She attended DT’s home and telephoned ACAT regarding DT. The next day she recorded this in his clinical record at the centre.
· Without the authority of DT she applied to Australia Post to redirect his mail to her address.
· During this period she attended two dressing changes for DT.
· She attended DT’s home on 25 August whilst the ACAT assessment was conducted.
· On 26 August she knowingly made further false statements to ACAT namely:
oShe was not a relative of DT but her husband was a distant relative as their mothers were cousins and he knew DT as ‘Uncle James’.
oHer husband had an EPA for DT which had been completed in July 2011.
· In August 2011 she completed a Health Practitioner Report for DT for the Office of the Adult Guardian (OAG).
· In February 2012 the OAG wrote to her concerning her dealings with DT and put to her that she ‘redirected DT’s mail from his address to hers and DT did not want this’.
· She knowingly falsely responded in an email saying ‘about the mail, I was not aware of it’.
The parties jointly submit that during this period Bella Montero was providing nursing services for DT (including the referral to ACAT, and changing his dressings) and that the conduct outlined above amounts to professional misconduct under the National Law.
Professional misconduct is defined[2] as including:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
[2]National Law, s 5.
The applicable guidelines which provide ethical and practice guidelines for nurses were provided to the Tribunal[3] and comprise:
· The Code of Ethics for Nurses in Australia.
· The Code of Professional Conduct for Nurses in Australia.
· A Nurses Guide to Professional Boundaries.
[3]Documents 1, 2 and 3 of the Board’s Bundle of Documents filed 5 December 2014.
Those documents provide for following relevant guidance:
· When performing their duties and conducting their affairs professionals will uphold exemplary standards of conduct.
· The minimum standards for practice is to ensure the good standing of the nursing profession.
· Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care.
· Nurses maintain and build a communities trust and confidence in the nursing profession.
· The vulnerability of a patient creates a power imbalance in the relationship with the nurse.
· Nurses must establish and maintain the boundaries in their professional relationships with persons receiving care.
The Board submits and the Tribunal accepts that the conduct admitted to by Bella Montero as set above is in breach of the relevant ethical guidelines.
Bella Montero knew (or reasonably have known) that DT was vulnerable, at risk of exploitation and that there was a power imbalance between DT and herself.
She had a responsibility to ensure that in those circumstances the professional and personal boundaries were maintained.
Instead, as the parties submit,[4] over a period of time as DT’s health declined, Bella Montero relationship with him transitioned from that of a professional relationship into that of an inappropriate personal relationship marked by boundary violations.
[4]Joint Submissions at [10].
Bella Montero’s dishonesty in her statements to ACAT about her relationship with DT and in her redirection of DT’s mail without his authority clearly evidence behaviour below the standards of conduct that the public could reasonably expect of someone in her profession. Honesty is a fundamental component of professional ethics.[5]
[5]Nursing and Midwifery Board of Australia v FH [2010] QCAT 675 at [11].
It is also noted that Bella Montero in her response in March 2012 to the OAG compounded her inappropriate conduct of redirecting the mail by being dishonest about her actions.
Her motives in violating the professional boundaries are unclear. Bella Montero did not file any evidence. Her response to the OAG was to the effect that her actions arose from a concern as to the wellbeing of DT.[6] The sincerity or otherwise of this position has not been tested but the response at best displays a clear lack of insight into the inappropriateness of her conduct.
[6]Document 12 of the Board’s Bundle of Documents filed 5 December 2014.
The Tribunal accepts that her conduct:
· Constituted a breach of professional boundaries.
· Placed her in a position where she had a conflict of interest.
· Failed to maintain and promote the trust inherent in the relationship with DT.
· Failed to maintain and build on the communities trust and confidence in the profession.
· Represents more than one instance of unprofessional conduct when considered together amounts to conduct that is substantially below the conduct expected of a practitioner at her level of training and experience.
In those circumstances, the Tribunal accepts the parties’ submission that Bella Montero engaged in professional misconduct.
Sanction
The parties have agreed proposed orders. Provided that the proposed sanction is appropriate and within a permissible range of sanctions in all the circumstances of the case, the Tribunal ought not to depart from the jointly submitted draft order.[7]
[7]Medical Board of Australia v Martin [2013] QCAT 377.
The parties propose that Bella Montero be reprimanded and suspended for 12 months and that upon the lifting of the suspension have conditions imposed upon her registration. The conditions include further education in professional boundary management and ethics, the requirement for a period of supervised practice and mentoring.
The purpose of the disciplinary proceedings and the imposition of a sanction is not to punish Bella Montero but to provide for the protection of the public.[8] To ensure that the public is protected sanctions must also act as a deterrent to the individual and to the practitioners generally.[9]
[8]National Law s 3(2)(a).
[9]Chiropractic Board of Australia v Brubaker [2015] QCAT 30 at [22].
The Board has referred the Tribunal to a number of cases to assist in its consideration of the proposed sanction.[10]
[10]Fletcher v Queensland Nursing Council [2009] QCA 364; Nursing and Midwifery Board of Australia v Brennan [2011] QCAT 328; Nursing and Midwifery Board of Australia v Farley [2011] QCAT 162.
Whilst Bella Montero in her response to the OAG in 2012 showed a lack of insight she says in her formal response to the referral in December 2014 that she had engaged Carramar Consulting for the purpose of completing a program addressing professional boundaries and ethics. She said in that response that she planned to complete the education program by early 2015.
However the Tribunal notes that Bella Montero has conceded by virtue of the joint submissions filed in June 2015 that ‘no detail of the content of that education program and/or evidence of her level of insight into her behaviour subsequent to completion of that course has been proffered’.
As such in imposing the sanction I assume that the course has not been completed.
After discussion with the assessors the Tribunal considers the draft order is appropriate.
The Tribunal is satisfied that time away from practice will afford Bella Montero time to reflect and that the imposition of conditions following this period of reflection, will provide the public with the required level of protection. The conditions will ensure that she undergoes professional development and also enable her to demonstrate on her return to work, an ability to practice in accordance with the ethical standards and guidelines.
The parties have also agreed that Bella Montero should pay the Board’s costs on a standard basis as assessed or agreed, within 28 days of receipt of the assessment or agreement. That order is also appropriate.
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