Nursing and Midwifery Board of Australia v Ascot
[2011] QCAT 266
•7 June 2011
| CITATION: | Nursing and Midwifery Board of Australia v Ascot [2011] QCAT 266 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant/Appellant) |
| v | |
| Jean-Claude Ascot (Respondent) |
| APPLICATION NUMBER: | OCR157-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 13 April 2011, final submissions received 21 April 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by Ms Kathleen James Mr Alan Barnard Mr Bevan Hughes |
| DELIVERED ON: | 7 June 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE:
Mr Ascot’s registration is cancelled and Mr Ascot is prohibited from reapplying for registration until:
1.1A period of 4 years from the date of these orders has elapsed;
1.2Mr Ascot has completed a tertiary level course addressing professional boundaries and the therapeutic nurse/patient relationship, such course to be nominated by Mr Ascot and approved in writing by the Board.
1.3Mr Ascot has completed a course of counselling with a psychiatrist or psychologist nominated by Mr Ascot and approved in writing by the Board, such counselling to address the conduct the subject of these proceedings and is to continue until the counsellor is of the opinion that Mr Ascot is fit to resume work as a nurse;
1.4Mr Ascot has successfully undertaken an oral examination, at a time to be nominated by the Board (but not before Mr Ascot has complied with paragraph 1.2 and provided a written report of the counsellor to the Board at the completion of the counselling referred to in paragraph 1.3), before 2 senior nurses nominated by the Board in order to demonstrate an appropriate level of knowledge of professional boundary issue and the therapeutic nurse/patient relationship.
1.5Following completion of the oral examination, Mr Ascot is to be assessed by a psychiatrist nominated by the Board to determine Mr Ascot’s fitness to return to the practice of nursing.
The following conditions must be imposed upon any future registration of Mr Ascot for a period of 2 years after the commencement of such registration:
2.1That Mr Ascot must, within 2 business days of gaining employment as a nurse, notify the Board in writing of:
a) The name and address of the employer;
b) The address of his place of employment as a nurse;
c) The position description at the place of employment;
d) The name and contact telephone number of his supervisors at the place of employment.
2.2That Mr Ascot is prohibited from practising as a nurse;
a) Through a nursing agency;
b) Unless under the supervision of a registered nurse, nominated by Mr Ascot and approved in writing by the Board, such nurse to be senior to Mr Ascot in both position and years of experience (‘the supervisor’) where such supervision does not have to be direct supervision provided the supervisor is present at the same facility and available for reasonable access.
2.3That Mr Ascot must provide to the Board at the end of each calendar month a logbook detailing each shift worked by Mr Ascot in that month and have each shift signed by the supervisor.
2.4That Mr Ascot must provide a copy of these orders to his nursing employer within 7 days of commencing employment.
2.5That Mr Ascot must provide a written authorisation to his employer, within 7 days of commencing employment, to provide a written report to the Board about Mr Ascot’s fitness and competence to practice at the following times:
a) If the employer holds a concern about Mr Ascot’s fitness or competence to practice;
b) If requested by the Board;
c) At intervals of 3 months from the commencement date of such employment.
2.6That Mr Ascot must notify the Board in writing within 2 business days of a change in any of the details required pursuant to paragraph 2.1 of these others.
The costs of complying with paragraphs 1 and 2 of these orders must be borne by Mr Ascot, including the provision of a report to the Board by the psychiatrist referred to in paragraph 1.5.
Mr Ascot is to pay the Board’s costs of these proceedings fixed in the sum of $13,500 within 28 days of the date of these orders (or such longer period as the Board may allow).
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – DISCIPLINARY – NURSE – where nurse commenced a personal relationship with a former patient – where insufficient time elapsed between cessation of therapeutic relationship and commencement of personal relationship – where Nurse denied allegations – where Nurse did not co-operate with investigation and subsequent disciplinary proceedings – where grounds for disciplinary action established PROCEDURE – PARTICIPATION BY REMOTE MEANS – where nurse applied for leave to participate in hearing by remote means – where nurse could not say where he would be on the day of the hearing – where nurse sought to participate by Skype – where those facilities not available – whether leave should be granted Health Practitioners (Professional Standards) Act 1999, ss 405L 405P(1), 405P(5) Nursing Act 1992, ss 104A(1)(a), 104A(3)(c), (d) Briginshaw v Briginshaw (1938) 60 CLR 336 applied Medical Board of Queensland v Alroe [2005] QHPT 4 cited Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423 cited |
APPEARANCES and REPRESENTATION (if any):
REASONS FOR DECISION
The Board alleged Mr Ascot maintained a sexual relationship with a former patient between 19 February 2009 and 23 March 2009 when insufficient time had elapsed since the cessation of a therapeutic relationship between them. It requested the Tribunal take disciplinary action against him.[1] Mr Ascot denied the allegation but did not attend the hearing, which proceeded in his absence. The Tribunal is satisfied grounds exist to take disciplinary action and has made orders it considers necessary to achieve the purposes of a disciplinary proceeding.
[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 and registration proceeding in relevant Act; s 405L: definitions of amending Act and repealed Health Practitioner Registration Act.
The decision to proceed with the hearing in Mr Ascot’s absence
At a directions hearing in early February 2011, the Tribunal fixed the hearing dates for two days commencing on 13 April, because Mr Ascot said he wished to cross examine five witnesses, including the complainant. Arrangements were made for all five witnesses to attend.
The Tribunal gave leave for one of them, a former fiancé of Mr Ascot, to give evidence by telephone from the United States where she now lives. During the investigation of the complaint, Mr Ascot told the Board’s investigator the allegation could not be true, because he was then living with his fiancé. Later, his fiancé provided a sworn affidavit which denied she was living with Mr Ascot during the relevant period. Mr Ascot had indicated his intention to cross-examine her about her evidence.
In another directions hearing shortly before the hearing, Mr Ascot applied for leave to participate in the hearing by remote means. The application was denied for reasons given at the time. A summary of those reasons follows.
Mr Ascot was either unable or unwilling to commit to his whereabouts on the days set for hearing. It was difficult to ascertain what disadvantage he would suffer in attending in person, accepting there may have been some cost in getting to Brisbane from wherever he was.
Because he did not disclose his location for the days set for hearing, arranging video conferencing was impossible. Mr Ascot offered to participate in the hearing using Skype, an internet conferencing service. QCAT does not have the necessary facilities to offer this to parties.
The remaining option was telephone attendance. There are obvious difficulties in having both the questioner (Mr Ascot, at an unknown location using a mobile phone) and the witness (his former fiancé in the United States) on the telephone with the Tribunal participating through a conference call. The degree of difficulty seemed out of proportion to any potential disadvantage to Mr Ascot if required to attend the hearing.
In any case, issues of credit were central to the contest Mr Ascot mounted to the charge. Despite being directed to file affidavit material, Mr Ascot provided none. Yet he sought to persuade the Tribunal that the evidence of 5 other witnesses, who had provided sworn affidavits, should not be accepted. In those circumstances the Tribunal did not exercise its discretion in Mr Ascot’s favour.
After that decision was made, Mr Ascot complained his financial situation prevented him from attending the hearing. That is inconsistent with the picture that he painted of his circumstances in an email he sent at the end of 2010 to his former fiancé. He told her then that he was living outside Australia, had married a woman from the Philippines and was very well off. Where the truth lies is difficult to determine on the scarce information before the Tribunal.
[10] On the day set for hearing, Mr Ascot did not attend. He did send an email after the hearing commenced alleging discriminatory conduct and making other extravagant accusations about his treatment by the Tribunal. This is not the forum to deal with that. It is a matter for Mr Ascot to pursue if he wishes to.
[11] Certainly the Tribunal was not aware of the email when it decided to proceed. The Tribunal was satisfied that Mr Ascot was aware of the proceedings and that he knew he did not have leave to attend by remote means. The Tribunal proceeded in his absence.
The finding that grounds exist to take disciplinary action against Mr Ascot
[12] The Tribunal is satisfied the evidence from the Board’s witnesses establishes the facts upon which the Board relies:
(a) That the complainant was an in-patient at the Sunnybank private hospital between 10 and 17 February 2009.
(b) That Mr Ascot was a registered nurse working at that hospital and was assigned to care, or did care, for the patient on at least one occasion during that period.
(c) That on or about 16 February 2009, Mr Ascot provided to the patient three telephone numbers.
(d) That, on a date unknown between 10 February 2009 and 23 March 2009, Mr Ascot, without authority, removed a patient identification label from the Sunnybank private hospital containing confidential information about the patient.
(e) That Mr Ascot commenced and maintained a sexual relationship with the patient in the period from about 19 February 2009 to 23 March 2009, when insufficient time had elapsed since the cessation of the therapeutic relationship.
[13] On 30 July 2010 the Tribunal made a direction that the evidence of the parties would be by way of affidavit, save with leave of the Tribunal. Mr Ascot has never descended to swearing an account of events. He neither led evidence by affidavit, nor did he seek leave to lead evidence in any other form.
[14] The complainant provided a statement to the investigator and later provided a sworn affidavit. She attended the hearing so that she might be examined. The other witnesses for the Board were also available for the hearing. The affidavits provided by the Board’s witnesses address each of the facts set out above. Their evidence was not challenged by cross-examination.
[15] Mr Ascot’s versions are contained in accounts given to the Board in response to the complaint and in a former solicitor’s affidavit (presumably on Mr Ascot’s instructions) filed in a related proceeding to review a decision made by the Board during the investigation.
[16] To the extent that his responses can be discerned from that material, they are internally inconsistent as well as being in conflict with the evidence of the Board’s witnesses. In essence he admits some limited contact with the complainant about some repairs to her car because he felt sorry for her but denies an intimate relationship.
[17] Some of the internal inconsistencies in Mr Ascot’s account are about matters that might be considered to be peripheral to the central complaint. However, they do undermine his credibility and make it difficult to fix upon what version he asserts. He maintained that he barely knew the complainant. This seems at odds with his own account that he paid $422.85 for repairs to her car.
[18] His denial they were in an intimate relationship is contradicted by the complainant and also by the evidence of the complainant’s son and the son’s fiancé. The son and his fiancé say they met a person who matches Mr Ascot’s description at their Wellington Point house. The complainant says she was then in a relationship with Mr Ascot. Her son and his fiancé recount a conversation with Mr Ascot about that relationship.
[19] Mr Ascot’s credibility is also seriously damaged by his responses to a photograph of him in bed which the complainant provided to the Board. It was relied upon to demonstrate there was an intimate relationship between the two.
[20] Mr Ascot’s explanation as to how the complainant came to have the photograph is improbable. He claimed he barely knew the complainant, yet he described her as a “typical drug affected individual” whose behaviour was “erratic and strange”, which would suggest more contact with her than he admitted to. He says he gave her the password to his computer and left her alone in his house while he went to work. This is an unusual level of access, it might be thought, to give to either a virtual stranger or a drug affected person. While he was at work, he said, the complainant downloaded the photograph and stole a hat that belonged to his father.
[21] To bolster this unlikely account, he claimed the photograph had been taken in Tasmania in 2004 by his then fiancé. Later, his former fiancé swore that she did not take the photograph.
[22] His final assault on the photograph involves a claim based on when he said he had a particular tattoo done to his left pectoral. It is a prominent tattoo and could not be missed in a photograph of his bare chest. Mr Ascot asserted he had the tattoo by 2008 but led no evidence to establish that. If that was true and the complainant had taken the photograph of Mr Ascot in bed in early 2009, as she said she did, then the tattoo would have been visible. It was not.
[23] This argument by Mr Ascot ignores other photographs provided by the complainant which show Mr Ascot working on her car. The complainant says they were also taken in early 2009. They are consistent with Mr Ascot’s admission that he did do some work on her vehicle. In a number of those photographs Mr Ascot is shown with a bare torso and the particular tattoo is not present either.
[24] The tattoo does appear in a photograph provided by Mr Ascot. However, that appears to have been taken in June 2010, well after the relevant period. The photograph provided by Mr Ascot does not support his assertion that he bore the tattoo from sometime in 2008.
[25] There is also a critical conflict in the evidence about the state of his relationship with his former fiancé in early 2009, when the complainant says they were in an intimate relationship. Mr Ascot said this could not have occurred because he was living with his finance until June 2009. His former fiancé has sworn that she left Mr Ascot’s unit on 15 December 2008 and left Australia on 27 April 2009. Her date of departure is verified by an entry in her passport.
[26] Her evidence about when the relationship broke down is supported by another witness, Mr Ascot’s former landlady, who says she had been invited to the wedding, scheduled for 6 December 2008, which was cancelled.
[27] The complainant provided the Board with numerous text messages she says Mr Ascot sent to her. They came from one number. If Mr Ascot did send them, there can be no doubt about the nature of their relationship. Mr Ascot said that telephone number was for a phone in the control of his former fiancé. His former fiancé says the number was Mr Ascot’s personal mobile number. The complainant told the Board Mr Ascot gave her another mobile number as well. That second number is listed on Mr Ascot’s application for registration.
[28] The complainant’s version is also supported by the evidence from her psychologist, Kim Archer, who was consulted by the complainant before, throughout and after the relevant period. She made contemporaneous notes of what the complainant told her about the relationship. In broad terms her notes record a relationship that followed the same path as the complainant later described to the Board. If the complainant concocted the story then she did so at the time she said the events were occurring. Mr Ascot has not offered a motive for the complainant to concoct a story involving such an elaborate deception.
[29] There are other conflicts but those noted give sufficient basis to reject Mr Ascot’s denials of the allegation. The Tribunal accepts the complainant’s evidence. It is supported in some respects by evidence from other witnesses. Mr Ascot’s accounts are unsworn and are contested by evidence from other witnesses.
[30] The Tribunal is comfortably satisfied[2] the Board has established its case. It accepts the evidence of the complainant about her relationship with Mr Ascot and the circumstances in which it commenced.
[2] Briginshaw v Briginshaw (1938) 60 CLR 336.
The nature of the conduct proved against Mr Ascot
[31] The complainant was discharged from hospital on 17 February 2009 after she had undergone a spinal surgery. Mr Ascot was aware she was particularly vulnerable at this time. On discharge she was taking prescription medication, including Endone, for pain relief. Mr Ascot had spoken to the complainant when she was in hospital. He was aware she was upset the operation had not been as successful as she had hoped it would be. It appeared there was some nerve damage which might require further surgery.
[32] He initiated contact with the complainant through Facebook. He used personal information that he obtained improperly in the course of his employment to make contact with the complainant. He told her that he had done “something naughty” by taking one of her patient identification labels. This had personal details about her including her residential address and phone number. He said he had driven past her house.
[33] The contact through Facebook was followed by text messages between the two. They commenced before her discharge and quickly became intimate and explicit. Not long after discharge they commenced a sexual relationship.
[34] Quite apart from his ethical transgression in commencing a relationship so soon after her discharge, Mr Ascot’s actions reveal a lack of concern for his former patient. Given the nature of her surgery, sexual intercourse so soon afterwards was unwise. From his training as a nurse Mr Ascot would or should have been aware of this. Engaging in a sexual relationship with a recent surgical patient in those circumstances raises concerns about Mr Ascot’s competence as a nurse as well as his character. On the complainant’s account, as their relationship broke down he used information he had about her condition and her medication to torment and denigrate her. The complainant’s experience with Mr Ascot left her anxious about the necessary further admission to hospital.
[35] In this case it is not only the breach of professional boundaries that constitutes grounds for taking disciplinary action. Mr Ascot has used his position to gain access to personal information about the complainant which he used to pursue her. There are elements of predatory conduct in his pursuit of the complainant when he knew of her personal vulnerability. The impact of his actions on the complainant is significant.
[36] Mr Ascot’s breach of professional boundaries constitutes unsatisfactory professional conduct.[3] His abuse of his position to obtain personal information about the patient and his pursuit of her is also infamous conduct[4] and misconduct in a professional respect.[5]
[3] Nursing Act 1992, s 104A(1)(a).
[4]Nursing Act 1992, s 104A(3)(c); Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423, 7.
[5] Nursing Act 1992, s 104A(3)(d).
What orders should be made
[37] In April 2010, Mr Ascot’s registration as a nurse was cancelled and the Board granted limited registration subject to conditions. His application to review that decision was withdrawn when the investigator’s report was provided to Mr Ascot. The Board now seeks cancellation of his registration and an order that would preclude him from seeking registration for 4 years. If he is subsequently registered, the Board seeks orders from the Tribunal about the conditions that would apply.
[38] Mr Ascot’s conduct does justify cancelling his registration. He used his position as a nurse to obtain personal information which he then misused to pursue the complainant at a time when he knew she would be vulnerable.
[39] The preclusion period the Board has asked for is lengthy for a consensual relationship. While this case shares with other cases an element of manipulation of a vulnerable person, it should be distinguished from cases such as Alroe[6] in which a psychiatrist charged with a patient’s welfare abused his ongoing therapeutic relationship with the patient.
[6]Medical Board of Queensland v Alroe [2005] QHPT 4; Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423.
[40] Nevertheless, a significant preclusion period is justified. Further, the indications of predation in his conduct call for orders designed to ensure he is appropriately supervised if he does resume practice as a nurse.
[41] The purposes of disciplinary proceedings are to maintain professional standards and public confidence in the profession and to protect the public interest. An aspect of the public interest is support for a system of registration and supervision intended to maintain professional standards. In that context it is also relevant to consider Mr Ascot’s conduct during the investigation and these proceedings in determining what orders should be made.
[42] He did what he could to divert the Board’s investigation by providing false information. It was put to considerable trouble and expense in investigating explanations that Mr Ascot offered in his attempt to discredit the complaint. Mr Ascot may not have anticipated that the Board would either try to or succeed in contacting his former fiancé, behind whom Mr Ascot tried to hide, because she had, by that time, left the country.
[43] Mr Ascot was disrespectful in his dealings with staff of the Board, a pattern he continued in his dealings with the staff and members of this Tribunal. He rather dramatically painted himself as a victim of injustice and accused others of conspiring to plot his demise, a claim made against not only the complainant but also his former fiancé. Somewhat bizarrely, he says to demonstrate how easy it is to fake an email, he mocked up emails which he sent to an officer of the Board and to the Tribunal. For one of them he presented the email as if it came from a solicitor representing the Board and used derogatory language in doing so. It was never clear to the Tribunal how this behaviour could possibly advance Mr Ascot’s case. It did nothing to challenge the direct evidence from witnesses about what they observed or knew.
[44] Mr Ascot failed to comply with directions intended to reduce the time and cost involved for all parties in finalising this matter. The Board’s costs are derived from the registration fees of nurses and there is a clear interest for all in an efficient and timely means to deal with disciplinary matters. Mr Ascot did nothing to advance that objective. The complainant has had to endure a lengthy investigation of her complaint and the prospect of being cross-examined by a person with whom she ended up on unpleasant terms.
[45] Mr Ascot required 5 witnesses for cross-examination and then did not participate in the hearing. This demonstrated his disregard for them and his contempt for the disciplinary procedure. He never deigned to give a proper account of what he said occurred between he and the complainant. He did not provide sworn testimony about any aspect of the allegations. He made no admissions and the Board was put to proof of every aspect of the charge.
[46] At no time has Mr Ascot accepted responsibility for his actions.
[47] The orders made have been formulated taking all of those factors into account.
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