Nursing and Midwifery Board of Australia v Alexander
[2010] QCAT 606
•30 November 2010
| CITATION: | Nursing and Midwifery Board of Australia v Alexander [2010] QCAT 606 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant) |
| v | |
| Jason Alexander (Respondent) |
| APPLICATION NUMBER: | OCR163-10 |
| MATTER TYPE: | Occupational Regulation |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham (Deputy President) Assisted by: Ms Jocelyn Toohill Ms Deborah Moen Mr Gary Bell |
| DELIVERED ON: | 30 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE:
The respondent is reprimanded.
The respondent’s registration is suspended for a period of 12 months, but that suspension shall be wholly suspended after that day which is 6 months from the date of these orders (‘the suspension date’) provided that if the respondent is to avoid being dealt with for the suspended suspension the respondent must not be the subject of any disciplinary action by the Tribunal or the applicant during the period of 2 years from the date of these orders.
The respondent’s registration shall be subject to the following conditions from the suspension date for a period of 18 months:
3.1The respondent must complete re-education by no later than 6 months after the suspension date, at his expense, and provide evidence to the applicant of such completion, in the areas of professional boundary management and professional ethics, the courses of re-education to be nominated by the respondent and approved in writing by the applicant (provided that nothing shall prevent the respondent from undertaking that re-education at an earlier time);
3.2The respondent must provide, with a copy of these orders, a written authority to his nursing employer, within 7 days of recommencing practice as a nurse or commencing employment, to report to the applicant about the respondent’s fitness and competence to practice (particularly regarding issues of boundary management) whenever the employer holds a concern about the respondent’s fitness or competence to practice, or as may be requested by the applicant.
3.3The respondent must, within 2 business days of gaining employment as a nurse, notify the applicant in writing of:
3.3.1The name and address of the employer, and if listed with a nursing agency, the name and address of that agency;
3.3.2The address of his place of employment as a nurse;
3.3.3The position description at the place of employment;
3.3.4The name and contact telephone numbers of his supervisors at the place of employment, and if listed with a nursing agency, the name and contact telephone numbers of the person with whom he liaises at the agency.
3.4The respondent must notify the applicant within 2 business days of a change in any of the details required pursuant to paragraph 3.3 of these orders.
In addition to the conditions in paragraph 3 of these orders, the respondent’s registration shall be subject to the following further conditions from the suspension date:
4.1The respondent must by no later than 7 days after the suspension date submit to the applicant a written nomination of a psychiatric nurse who is senior to the respondent in terms of either experience or position (preferably being a male person) for approval by the applicant as a mentor;
4.2If any nomination by the respondent pursuant to paragraph 4.1 is refused by the applicant, the respondent must, within 7 days of being notified of that refusal, submit a further written nomination to the applicant;
4.3As soon as practicable after receiving the applicant’s approval pursuant to paragraph 4.1 (‘the notification date’), the respondent must establish a mentor relationship with the approved person (‘the mentor’) which must focus on professional boundary management and strategies to ameliorate risks arising from the vulnerability of either the patient or respondent;
4.4The respondent must meet the mentor at a frequency to be determined by the mentor but no less frequently than monthly for a continuous period of 1 year commencing on the notification date;
4.5The respondent must provide a written notification to the mentor to provide a written report to the applicant at intervals of 3 months commencing from the notification date for a period of 1 year.
The respondent shall pay the applicant’s costs of these proceedings fixed in the sum of $6,000.00 by way of monthly instalments of $500.00 payable on the first business day of each month with the first payment to be made in the month immediately following the suspension date, provided that if the respondent defaults in any monthly payment the full amount then owing for costs shall become immediately due and payable.
Liberty to apply on giving not less than seven (7) days notice to the other party.
| CATCHWORDS : | DISCIPLINARY – Nurse – where nurse commenced a personal relationship with a patient – where patient particularly vulnerable – where disciplinary grounds established – where joint orders addressing boundary issues proposed – where additional mentoring condition imposed Nursing Act 1992 ss 104A(3), 116(2) Health Practitioners (Professional Standards) Act 1999 ss 405L 405P(1) s 405P(5) |
REASONS FOR DECISION
Mr Alexander has been involved in Nursing since June 1993 when he started working as a Personal Care Assistant in an aged care facility. He has been a registered nurse for four years. Whilst he is a mature man (42 years of age) he is professionally immature. That is borne out by the conduct which has brought him before the Tribunal.
In September 2008 he provided his mobile phone number to the complainant, then an inpatient in the Acute Inpatient Unit at the Prince Charles Hospital, a facility for patients suffering from mental health conditions.
Mr Alexander provided care to this patient on a number of occasions in September, October and November of 2008. Sometime after 18 December 2008 Mr Alexander formed a sexual relationship with the complainant which he maintained until 30 June 2009, when the patient terminated it. The relationship came to the attention of his employer in July. In December 2009, the Queensland Nursing Council, as it then was, imposed limited registration on Mr Alexander. This required him to be supervised at work, a condition under which he has satisfactorily practised for almost one year.
The Council, since replaced by the Nursing and Midwifery Board of Australia, referred the matter to the Tribunal asserting a disciplinary ground exists and a sanction should be applied[1]. During the proceedings, the parties attended a compulsory conference, following which they have made a joint submission to the Tribunal which includes an agreement about the facts and a sanction both support the Tribunal applying.
[1]These proceedings were commenced under the Nursing Act 1992 since repealed. The effect of the transitional provisions is these proceedings continue to be dealt with as if the Act had not been repealed. Health Practitioners (Professional Standards) Act 1999 s 405P(1) s 405P(5) Definitions of existing QCAT proceeding; registration proceeding in relevant Act; s 405L Definitions of amending Act and repealed Health Practitioner Registration Act.
Mr Alexander admits the conduct alleged against him. The Board accepts his expression of remorse for his behaviour is genuine.
The parties are agreed that Mr Alexander’s conduct constitutes unsatisfactory professional conduct. The Board proceeded on the basis that it satisfies each of the following limbs of the definition of unsatisfactory professional conduct[2]:
[2] Nursing Act 1992 s104A(3)
(a) Professional conduct that is of a lesser standard than that which might reasonably be expected of Mr Alexander by the public or his peers.
(b) Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgement or care in nursing practice.
(c) Infamous conduct in a professional respect.
(d) Misconduct in a professional respect
(e) Conduct discreditable to the nursing profession.
There are a number of documents which provide ethical and practice guidance for nurses:
§ Code of Professional Conduct for Nurses in Australia
§ The Code of Ethics for Nurses in Australia
§ Guidelines for Registered Nurses and Enrolled Nurses regarding the boundaries for professional practice 1999
§ Scope of Practice Framework for Nurses and Midwives Policy Position Statement – Sexual Relationships between Health Practitioners and their Patients
The guidance provided in those documents maybe summarised as follows:
§ When performing their duties and in conducting their affairs Nurses are expected to uphold exemplary standards of conduct.
§ Minimum standards are intended to ensure the good standing of the Nursing profession.
§ Nurses must promote and preserve the trust and privilege inherent in the relationship between Nurse and Patient.
§ Sexual behaviour with a patient may affect the clinical judgement of the Nurse in the management of the patient.
§ The vulnerability of a Patient creates a power differential in the relationship with the Nurse which the Nurse must recognise and manage.
§ Nurses must protect vulnerable people from sexual exploitation and physical harm.
§ Nurses must maintain a professional boundary between them and their patient.
§ Sexual relationships with a past patient will usually be inappropriate regardless of the patient’s consent.
§ A Sexual or intimate personal relationship is unacceptable between a Nurse and patient whilst receiving care.
§ Any exploitation of the relationship between Nurse and Patient for the gratification of the Nurse is an abuse of power.
It can be expected that any patient who is in a Mental Health Unit suffers particular vulnerabilities. Whilst Mr Alexander has a longer history in providing nursing care as an assistant, he has only worked in a psychiatric facility since late 2004, some 4 years before the conduct commenced.
Nevertheless, he would have been aware from his studies and professional training of both the patient’s vulnerability and the professional standards which applied to him. Her willingness to enter into the relationship is irrelevant. He provided her his phone number whilst she was still an inpatient in an Acute Mental Health Unit and commenced seeing her within less than a month after her discharge. The Tribunal finds his conduct falls within each limb of the definition of unsatisfactory professional conduct relied on by the Board.
The Tribunal has been provided with a report from the Nursing Director at the Prince Charles Hospital (20 October 2010). The Nursing Director has known Mr Alexander since 2004 and observed him make a transition from Nursing Assistant to Registered Nurse during that period. Prior to the relationship being reported, there had been no performance issues or concerns about Mr Alexander practice. Since Mr Alexander has been under supervision, there have been no concerns with his performance, in particular his interactions with female patients. Mr Alexander has completed a Code of Conduct training course and has reengaged with his clinical supervisor.
It is to Mr Alexander’s credit, and his employer, that he has been able to maintain a positive subsequent work history under supervised conditions in the same workplace. It can be expected the disciplinary proceedings would have become known to his colleagues and was, no doubt, the subject of some discussion.
Mr Alexander is strongly committed to his profession. That emerges vividly from his affidavit. In it, he reported the honour and privilege he feels in assisting people in need and the immense personal satisfaction he gets from caring for and being there for patients and letting them know that they are not alone. His sentiment is admirable. However, the strength of his emotional connection with his patients presents a risk that he will stray beyond professional boundaries, whether by sexual misconduct or in other ways. Put simply, he is at risk of becoming too attached.
The parties have proposed orders which include a period of suspension from practice, further education in professional boundary management and ethics and monitoring by Mr Alexander’s employer. After consultation with the Assessors, I proposed a further condition to the parties which would require an experienced psychiatric nurse, preferably a male nurse, to mentor Mr Alexander for a period. The mentoring should focus on professional boundary management and strategies to ameliorate risks arising from the vulnerability of either the patient or Mr Alexander.
Neither party has opposed the Tribunal making that further order. I am satisfied mentoring will strengthen the proposed sanction by assisting Mr Alexander to identify how his emotional commitment to his patients could place him in a position of risk and to develop practices which will protect both him and his patients from that risk being realised again.
In making the orders proposed by the parties along with the additional mentoring condition, I have taken into account the following matters:
§ Mr Alexander pleaded guilty to the charge at an early opportunity.
§ He cooperated throughout the Tribunal proceedings.
§ He has a good work history with no previous offending of a like nature.
§ He is remorseful and has developed insight into why his behaviour was wrong.
§ He has been working under supervision since 4 December 2009 without any concerns about his practice, particularly in relation to his interactions with female patients.
The parties have proposed Mr Alexander is suspended for twelve months, that penalty to be suspended after six months. The effect of that will be that Mr Alexander will be able to return to nursing after six months but will be at risk of the remaining six months suspension being activated if he is the subject of any disciplinary action within two years from these orders. Regardless of Mr Alexander’s performance under these orders, the suspension must be reviewed at the end of the suspension period[3].
[3] Nursing Act 1992 s 116(2).
Whilst the purpose of disciplinary proceedings is not punitive, deterrence does play a role in the maintenance of professional standards by demonstrating to the practitioner and his colleagues the serious consequences of conduct of this nature.
I am persuaded suspension, rather than cancellation, is appropriate. Mr Alexander has undergone supervised practice satisfactorily for a year. His employer considers him fit to practice as a Nurse. It is not necessary for that to be reassessed.
As well as providing a period away from practice, these orders require further education, supervision and mentoring. These orders will support Mr Alexander in his further professional development and ameliorate any risk he poses to vulnerable patients.
The parties have reached an agreement about the costs. Costs are fixed at $6,000 and Mr Alexander will make payments towards that sum over time.
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