Nursing and Midwifery Board of Australia v Brennan

[2011] QCAT 328

CITATION: Nursing and Midwifery Board of Australia v Brennan  [2011] QCAT 328

PARTIES:	Nursing and Midwifery Board of Australia   (Applicant/Appellant)
v
Andrew James BRENNAN (Respondent)

APPLICATION NUMBER:   OCR062-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: 2 June 2011

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President
Assisted by:
Ms Mary Barnett
Ms Carole Crack
Mr Paul Murdoch

DELIVERED ON: 6 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Mr Brennan is reprimanded.

2.    Mr Brennan’s registration is suspended for a period of 3 months or until Mr Brennan has satisfied the following conditions, whichever is later:

a.    Mr Brennan has completed a course or courses of education, specified in writing by the Board, addressing professional boundary management and the therapeutic nurse/patient relationship.

b.    Mr Brennan has provided a report from the provider of the course or courses at paragraph 2 a. above confirming successful completion by Mr Brennan.

3.    The following conditions must be imposed upon any future registration of Mr Brennan.  The conditions will remain in place until Mr Brennan has completed 12 months active employment as a nurse:

a.    Mr Brennan is prohibited from undertaking employment through a nursing agency.

b.    Mr Brennan is prohibited from working as a nurse in a dedicated mental health unit.

c.    For the first three months of his registration, Mr Brennan can only provide nursing care under the direct supervision of a registered nurse, approved by Mr Brennan’s employer, who must provide the Executive Director or equivalent with a weekly report.

d.    For the following nine months, Mr Brennan can only provide nursing care under the indirect supervision of a registered nurse, approved by Mr Brennan’s employer.

e.    Mr Brennan must ensure a written logbook is kept which records each shift worked and the name of the supervisor for each shift.  Each entry must be signed off by the supervisor.  Mr Brennan must produce the logbook to the Board upon request.

f.     Within 2 business days of gaining or changing his employment as a nurse, Mr Brennan must notify the Board in writing of the following details:

                   i.    The name and address of his employer.

                 ii.    The address of his place of employment.

                 iii.    His position description.

                 iv.    The name and contact telephone numbers of his supervisors.

g.    Within 7 days of commencing employment, Mr Brennan must provide a copy of these orders and the Tribunal’s reasons to his employer as well as a written authority to provide a report to the Board about his ability to practise competently and safely on the following occasions:

                   i.    At 3 months from the commencements of his employment;

                 ii.    If the employer holds a concern about Mr Brennan’s ability to practise competently and safely; and

                 iii.    If requested by the Board.

h.    Within 14 days of registration, Mr Brennan must nominate in writing a registered nurse for the Board to approve as his mentor.  If the Board does not approve the nominee, Mr Brennan must make a further nomination in writing within 7 days.

i.   As soon as practicable after a mentor is approved by the Board, Mr Brennan must commence the mentor relationship.  Mr Brennan must meet the mentor at least monthly.  The mentoring must focus on professional boundary management and strategies to ameliorate risks arising from the vulnerability of either patients or Mr Brennan.

j.     Mr Brennan must provide a copy of these orders and the Tribunal’s reasons to the mentor as well as a written authority to provide a written report to the Board about Mr Brennan’s ability to practice competently and safely on the following occasions:

                   i.    At 3 months from the commencement of mentoring;

                 ii.    If the mentor holds a concern about Mr Brennan’s ability to practice competently and safely; and

                 iii.    If requested by the Board.

4.    Mr Brennan must meet his costs and expenses of complying with the conditions specified by orders 2 and 3.

5.    Within 28 days of these orders, or such further time as the Board may allow, Mr Brennan must pay the Board’s costs of and incidental to these proceedings fixed in the sum of $13,500.00.

CATCHWORDS: 

DISCIPLINARY – Nurse – where nurse commenced a personal relationship with a patient – where nurse provided therapeutic materials to the patient without direction by a treating practitioner – where nurse engaged in a financial transaction with the patient - where patient vulnerable – whether agreed proposed orders appropriate

Health Practitioners (Professional Standards) Act 1999 ss 405L, 405P(1), s405P(5)

Nursing Act 1992 ss 102D, 104A

REASONS FOR DECISION

1. At the hearing on 2 June the Tribunal announced the orders that it would make in this matter, with reasons to be published subsequently. These are the reasons for the orders which have been taken out.

2. The Board asks the Tribunal to take disciplinary action against Mr Brennan because he had an inappropriate relationship with a patient of the residential psychiatric clinic where he worked.[1] Mr Brennan partly contested the proceedings, admitting many of the facts asserted by the Board at the commencement of the hearing and making further concessions later, during questioning by the Board’s counsel.

   [1]The Code of Professional Conduct for Nurses in Australia Statement 8, Statement 9; 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 1.1 – 1.5; 3.1-3.3; 4.1-4.4

3. Ultimately the issues before the Tribunal were whether to accept Mr Brennan’s explanations of his conduct, what disciplinary findings should be made and what penalty imposed. [2]

   [2]These proceedings commenced under the Nursing Act 1992 s104 since repealed. The effect of transitional provisions is these proceedings continue to be dealt with as if the Act had not been repealed Health Practitioners (Professional Standards) Act 1999 ss 405P(1); s405P (5) definitions of existing QCAT proceeding; registration proceeding and relevant Act; s405L definitions of amending Act and repealed health practitioner registration Act

The conduct and disciplinary findings

1. The patient was admitted for residential treatment on four occasions over a little less than 1 year in 09/10. Mr Brennan was assigned to care for her during her first admission. He denied he was caring for her during the other admissions, although he conceded when he saw her he was in uniform, wearing nursing insignia and the patient would have perceived him in his role as a nurse.

2. The Tribunal is satisfied their contact arose out of his role as a nurse. The patient had no reason to draw the distinction Mr Brennan did between when he was specifically assigned to care for her and when he was not. In any case, the ethical requirement to observe appropriate boundaries in his relationship with her as a patient of the clinic did not differ depending on whether he was directly assigned to care for her.

3. Mr Brennan agreed he had coffee with the patient at a nearby coffee shop on a date or dates unknown during the admission periods. He could not remember specific dates, but he conceded it occurred more than once.

4. On one of the occasions, in July 09, Mr Brennan gave the patient 3 workbooks on Depression, Anxiety and Post Traumatic Stress Disorder. He said he did this because he knew she had little support when she returned to her home town in rural Queensland. He thought this might help her. He did not concede it was outside his scope of practice to provide that sort of advice or material. He did not think that it might interfere with her treatment.

5. On one of the occasions that he met the patient for coffee in February 2010, she gave him $100. He says this was payment for the workbooks. The Board alleged it was a loan made to him at his request. This was supported by a text message the patient said he sent her that day, in which he asked for a loan until Wednesday of that week.

6. Mr Brennan did not contest he gave the patient his mobile phone number, although he could not recall when or how that had happened. He knew that he should not do so, having been given specific direction about this by his employer.

7. He agreed (or did not contest) that in January and February 2010, he sent the patient four text messages relied on by the Board. The last text message was the one in which he appeared to be asking for a short term loan of $100.

8. Mr Brennan attempted to explain his use of the word loan in that message. Whatever word he used, he said the patient knew it was in return for the workbooks he had given her some 9 months earlier. Then she had insisted on paying for the books, although no money changed hands. The request for money in February 2010 was in response to her offer to pay in July 2009. He thought that it would be good for her self esteem if she took responsibility for paying for the workbooks rather than accepting them as a gift.

9. The Tribunal does not accept Mr Brennan’s explanation, which is inherently improbable given the passage of time and the terms of the text message. In any case, even if that were true, Mr Brennan’s conduct was unacceptable on two counts: firstly, he provided therapeutic advice by providing the materials beyond the scope of his practice as a nurse; and secondly he entered into a financial transaction with her.

10. It seems to the Tribunal that Mr Brennan’s interest in the patient escalated in the last few weeks of contact. Until then the relationship had the hallmarks of an improper friendship, but not more. In the last few weeks, however, there are indications of an increased desire for contact with her. There were four text messages over three weeks and, in the second and third weeks there were four postings under his name on her Facebook profile.

11. Once again, Mr Brennan partially conceded the case against him. He agreed that either he sent her a request to accept him as a Facebook friend or that he accepted a request of that nature from her. However, he did not concede that he sent the particular messages relied on by the Board. His explanation for postings under his name was that this had happened to him before when things had been sent to all his friends that did not come from him. He described this as computer spamming.

12. Although little turns on it, in the absence of evidence that other friends of his received the same messages or any other evidence to support his explanation, the Tribunal is satisfied Mr Brennan was the author.

13. It seems that it was the nature of these messages that caused the patient to make a complaint about him. In one of them he sent her a gift. Another was a postcard that said “I luv u”. The others sent a smile or a wish.  It is not surprising that a patient might have become uncomfortable at that point, if not before.

14. Mr Brennan’s last contact with the patient was when he left a voice message on her mobile phone to the effect that he needed to talk to her.

15. Mr Brennan’s personnel file revealed that he had a number of conversations with his employer between October 2008 and February 2010 about ethical issues, including professional boundaries between nurses and their patients. These conversations occurred in the context of other matters not relevant to these proceedings.

16. He was either specifically referred to or provided with copies of relevant professional guidelines about the scope of a nurse’s practice and about professional boundaries. He said he was familiar with those documents and would have read them at some point. He said he probably did not read them in full, bearing in mind that he was quite busy and worked long hours.

17. He had undergone some mentoring but found it unhelpful. He said that all it entailed was a suggestion from his mentor that he leave the clinic before he was pushed.

18. Mr Brennan either did not understand or was unwilling to appreciate the concept of maintaining professional boundaries in his relationship with this patient. He said that what the term meant to him was that he should do no harm and only take actions in the interests of the patient. That is why he considered he had not done anything wrong in relation to this patient, although he now concedes his contact with her was inappropriate. 

19. Mr Brennan considers he has learned from his mistakes and asked the Tribunal to take into account the impact of action taken by the Board over the last year or so.

20. There is no contest that Mr Brennan engaged in unsatisfactory professional conduct[3] and the Tribunal finds that is so. Each aspect of the conduct relied on by the Board fell below the standard that might reasonably be expected of him by the public and his peers.[4] He entered into a personal relationship a patient and, in the context was involved in a financial transaction, albeit involving a small amount of money.

    [3]        Nursing Act 1992 s104A(1)(a)

    [4]        Nursing Act 1992 s104A (3)(a)

21. His behaviour is also properly characterised as professional conduct that demonstrates a lack of adequate knowledge, skill or judgment in nursing practice.[5] Even at the hearing he did not seem to understand what is required to maintain professional boundaries, nor had he then read the relevant documents. He also showed a lack of judgment in providing therapeutic material to the patient without the direction of her treating practitioner.  He also showed a lack of judgment in either seeking a loan or payment for the materials.

    [5]        Nursing Act 1992 s104A(3)(b)

22. Counsel for the Board submitted that it was open to the Tribunal to infer Mr Brennan had either a predatory or exploitative intent. On that basis it sought findings that Mr Brennan engaged in more serious unsatisfactory conduct. There are some features of Mr Brennan’s conduct that might be interpreted in that way. At the very least, requesting the loan exploited the friendship that had developed out of the nurse/patient relationship.

23. However, the Tribunal is not satisfied that Mr Brennan’s conduct can truly be described as predatory in the sense that it is often used in sexual offending. Mr Brennan insisted his intentions to the patient were genuine, that there was no physical aspect to the relationship and that he intended her no harm. Certainly there seemed to be some escalation in the last few weeks but, looked at over the course of their acquaintance, there does not appear to be a predatory intent from the outset. The Tribunal’s findings reflect that it rejects the Board’s submission that he engaged in predatory conduct.

24. A finding that Mr Brennan engaged in misconduct in a professional respect is open in this case. Mr Brennan received quite specific ethical guidance prior to and during the relevant events.  His casual attitude to the information he was provided with suggests he was unwilling to consider his ethical obligations, let alone observe them. Further the financial transaction was exploitative.

25. Nevertheless, the Tribunal considers Mr Brennan’s actions were at the lower end of conduct of this nature and do not call for a finding of misconduct. It is adequately dealt with by the disciplinary findings made above. Nor does the Tribunal consider Mr Brennan’s conduct has the necessary character to be infamous conduct or conduct discreditable to the nursing profession.

The sanction

1. Mr Brennan asked the Tribunal to take into account the circumstances he has endured since he lost his job with the clinic and the impact of conditions imposed by the Board pending the outcome of these proceedings. He says that he has suffered from depression and anxiety and has been socially isolated. The conditions imposed by the Board effectively prevented him from working, except for a few days of casual work. He has been homeless and is living in emergency accommodation.

2. At some point before the hearing Mr Brennan was able to travel overseas, despite his financial circumstances. He did not explain how he was able to afford the trip and this did cast some doubt on the degree to which Mr Brennan was financially affected. Regardless, the Tribunal accepts that the conditions imposed by the Board were likely to curtail his opportunities to work as a nurse.

3. Mr Brennan is eager to return to work but has agreed to the Board’s submission that he should serve a short period of suspension (3 months). The Tribunal has made orders designed to facilitate Mr Brennan’s return to work, subject to education about ethical issues and close supervision and mentoring.  The Tribunal is satisfied that the orders adequately serve the purposes of disciplinary proceedings: to protect the public and to uphold professional standards and public confidence in the profession.