2. Mr Clydesdale is precluded from applying for registration as a nurse for a period of 12 months and until he has satisfied the following conditions, whichever is the later:

2.1. Mr Clydesdale has completed a course or courses of education, nominated by him and approved in writing by the Board, addressing professional boundary management and the therapeutic nurse-patient relationship;

2.2. Mr Clydesdale has provided a report from the provider of the course or courses at paragraph 2.1 confirming successful completion by him;

2.3. Mr Clydesdale has successfully undertaken an oral examination before 2 senior nurses, at a time to be nominated by the Board but after receipt of the report referred to in paragraph 2.2, in order to demonstrate a sufficient level of understanding of professional boundary management and the therapeutic nurse-patient relationship;

2.4. Mr Clydesdale has undertaken a course of long-term insight orientated psychodynamic psychotherapy with a highly experienced psychotherapist, nominated by him and approved in writing by the Board, aimed at Mr Clydesdale gaining insight into his conduct, changing his behaviour and enhancing personality structure (‘the therapy’). The therapy is to take place at a frequency and for a period determined by the psychotherapist;

2.5. Mr Clydesdale has provided to the Board a report of the psychotherapist that he has developed insight into his conduct or that further therapy is unnecessary or not likely to be of benefit;

2.6. Mr Clydesdale has, after the Board has received a report from the psychotherapist, attended an examination by Dr Prior, or any other psychiatrist nominated by the Board, to assess whether he is fit to return to practise in the profession.

3. The following conditions must be imposed upon any future registration of Mr Clydesdale for a period of 12 months, such period to run only whilst he holds active employment as a nurse (‘the 12 month period’):

3.1. Mr Clydesdale can only provide nursing care under the indirect supervision of a registered nurse (‘the supervisor’);

3.2. the supervisor must be approved by Mr Clydesdale’s employer;

3.3. Mr Clydesdale must cause a written logbook to be kept (and provided to the Board 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;

3.4. Mr Clydesdale must, within 2 business days of gaining employment as a nurse, notify the Board in writing of:

3.4.1. the name and address of the employer;

3.4.2. the address of his place of employment as a nurse;

3.4.3. the position description at the place of employment;

3.4.4. the name and contact telephone numbers of his supervisor at the place of employment;

3.5. Mr Clydesdale must notify the Board within 2 business days of a change in any of the details required by paragraph 3.4 of these orders;

3.6. Mr Clydesdale must provide a copy of these orders and the Tribunal’s reasons to his employer, within 7 days of commencing employment, as well as a written authority to the employer to provide a written report to the Board about his ability to practice competently and safely (particularly regarding the issues of patient boundary management) on the following occasions:

3.6.1. at intervals of 3 months from the commencement of his employment;

3.6.2. if the employer holds a concern about his ability to practice competently and safely; and

3.6.3. if requested by the Board;

3.7. Mr Clydesdale must, by no later than 14 days after the imposition of this condition on his registration, submit to the Board a written nomination of a registered nurse for approval by the Board as a mentor;

3.8. if any nomination by Mr Clydesdale pursuant to paragraph 3.7 is refused by the Board, Mr Clydesdale must, within 7 days of being notified of that refusal, submit a further written nomination to the Board;

3.9. as soon as practicable after receiving the Board’s approval pursuant to paragraph 3.7, Mr Clydesdale 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 patients or himself;

3.10. Mr Clydesdale must meet the mentor at a frequency to be determined by the mentor during the 12 month period, but no less frequently than monthly;

3.11. Mr Clydesdale must provide a copy of these orders and the Tribunal’s reasons to the mentor as well as a written authority to the mentor to provide a written report to the Board about his ability to practice competently and safely (particularly regarding the issues of patient boundary management) on the following occasions:

3.11.1. at intervals of 3 months from the notification date;

3.11.2. if the mentor holds a concern about Mr Clydesdale’s ability to practice competently and safely; and

3.11.3. if requested by the Board;

4. The conditions referred to in paragraph 3 must be reviewed by the Tribunal at the conclusion of the 12 month period and otherwise in accordance with s 116(2) of the Nursing Act 1992.

5. All costs and expenses in relation to the matters set out in paragraphs 2 and 3 are to be borne by Mr Clydesdale.

6. Mr Clydesdale is to pay the Board’s costs of and incidental to these proceedings fixed in the sum of $13,500.00 within 28 days of these orders (or such further time as the Board may allow).

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY MATTERS – where the registrant engaged in an inappropriate relationship with a patient – whether conduct amounts to unsatisfactory professional conduct – whether the conduct amounts to infamous conduct in a professional respect – whether conduct amounted to misconduct in a professional respect – whether conduct amounted to conduct discreditable to the nursing profession

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – whether the Tribunal should grant an indemnity certificate.

Appeals Cost Fund Act 1973 s22(1)(c)
Nursing Act 1992, s 68, s 87(1), s 90(1), s 104A(1)(a), s 104A(2), s 104A(3), s 116(1), s 116(4)
Health Practitioners (Professional Standards) Act 1999 s 398K, s 398L(1), s 398R(1)

Chapman v Crime and Misconduct Commission & Rynders [2012] QCATA 16
Ex Parte Meehan; Re Medical Practitioners Act [1965] NSWR 30
Green v Council of the Shire Burnett [1995] QPLR 91
Kalil v Bray [1997] 1 NSWLR 256
Mercer v Pharmacy Board of Victoria [1968] VR 72
Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423
Ooi v Medical Board of Queensland [1997] 1 Qd R 176
Owen v Menzies & Ors [2012] QCA 170
Pillai v Messiter(No 2) (1989) 16 NSWLR 197
Quidwai v Brown [1984] 1 NSWLR 100
R v General Medical Council [1930] 1 KB 562
R v Lacey and Lacey [2009] QDC 303

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms S Gallagher instructed by Rodgers Barnes & Green Lawyers for the Applicant

RESPONDENT:

Mr J Wagner instructed by Cranston McEachern Lawyers for the Respondent

REASONS FOR DECISION

In March 2007, Mr Kieran Clydesdale was working as a registered nurse in the psychiatric emergency department at the Royal Brisbane and Womens Hospital. A young male soldier was brought to the hospital. The patient was reported to have been in a suicidal state. The patient was assessed by a psychiatric registrar, stabilised and released the same evening. His release was, apparently, contrary to Mr Clydesdale’s opinion that the patient should have been admitted.
Before the patient left the hospital, Mr Clydesdale gave the patient his mobile phone number. Thereafter, Mr Clydesdale became involved with the patient and engaged with him in ways which he now accepts breached the confidence and trust inherent in the nurse-patient relationship.
Mr Clydesdale has not worked as a registered nurse since his registration was suspended on 12 October 2007 with immediate effect, by the then Queensland Nursing Council.[1]
[1] Section 68 of the Nursing Act 1992.
In December 2007 the Queensland Nursing Council commenced an investigation into Mr Clydesdale’s conduct. That investigation was placed on hold, at Mr Clydesdale’s request, in 2008 due to an investigation into some of the aspects of Mr Clydesdale’s conduct having been commenced by the Queensland Police Service.
Mr Clydesdale was ultimately charged, tried and convicted of certain offences. On appeal, in March 2010, the conviction for one of the offences was quashed. Mr Clydesdale’s appeal against the other offence was dismissed; but it was ordered that the conviction for that offence not be recorded.
Upon being informed of the conclusion of those criminal proceedings, the Queensland Nursing Council recommenced its investigation.
On 21 January 2011, the Nursing and Midwifery Board of Australia resolved to commence disciplinary action against Mr Clydesdale.[2] These proceedings were commenced in the Tribunal on 11 November 2011.
[2]With the commencement of the Health Practitioner Regulation National Law(Queensland) on 1 July 2010, the Nursing and Midwifery Board of Australia assumed responsibility for disciplinary matters in the nursing and midwifery professions.
I have set out this history as it serves to explain the delay in the matter being dealt with by the Tribunal.

Mr Clydesdale’s conduct

Mr Clydesdale admits that he breached the confidence and trust inherent in the nurse-patient relationship formed with the patient by:
a)    Providing his personal mobile telephone number to the patient in or about March 2007;
b)    Telephoning the patient on several occasions between March 2007 and October 2007;
c)    Meeting with the patient on several occasions between March 2007 and October 2007 at either the patients house or a café;
d)    Attending with the patient at various consultations with the patient’s doctors between March 2007 and October 2007;
e)    Providing gifts to the patient on four occasions between 1 June 2007 and 30 September 2007, namely:
i)$250.00 cash;
ii)$100.00 cash;
iii)A new watch to the value of $270.00; and
iv)A zippo lighter.
f)     Sending text messages to the patient on or about 27 June 2007 to the effect that:
Mr Clydesdale:      ‘Oh Josh! Where do I begin? The concept of love has many sides and depths. I don’t think about the term “friend” but rather the depth of the love one has for the individual. Can we discuss this philosophical idea at 1530?’
Mr Clydesdale:     ‘I love you Josh’
Patient:               ‘What do you mean by that?’
Mr Clydesdale:     ‘Like husband and wife’
Patient:               ‘No I’m not into any of that’
Mr Clydesdale:     ‘No me neither, I’m not gay it’s more like brotherly love’
g)    Sending a text message to the patient on or about 4 July 2007 to the effect that:
‘Josh I had a brother he died on 31 December 1994 at the age of 19 through a motorbike accident. We were very close. My family are a very close caring group of people. One day I’ll introduce you. Anyway everything I’ve done with you, the massage, touching, quiet talks I used to do with him as well. I don’t know any other way to be around you. Have always treated you just like Justin’
h)    Sending a text message to the patient on or about 28 August 2007 to the effect that: ‘I still love you Joshy, good night’;
i)     Sending a text message to the patient on or about 15 September 2007 to the effect that: ‘Every night is good when I’m in your company’;
j)     Sending a text message to the patient on or about 23 September 2007 to the effect that: ‘Is my Joshy going to be alright if I start spending time with Matt’;
k)    Sending text messages to the patient on numerous occasions in between March 2007 and October 2007 to the effect that: ‘I miss you and love you’;
l)     Supplying prescription medication to the patient, that Mr Clydesdale had taken from employers, on several occasions between March 2007 and October 2007;
m)   Accompanying the patient for a weekend at Noosa Heads in or about July 2007 and paying for the accommodation at the Noosa Blue Hotel;
n)    Accompanying the patient to Port Macquarie in or about September 2007 and paying for the accommodation and dinner at the Rydges Hotel;
o)    Accompanying the patient to Taree in or about September 2007 for the patient to attend a court appearance.
The Board contends that this admitted conduct constitutes unsatisfactory professional conduct contrary to s 104A(1)(a) of the Nursing Act 1992 (‘Nursing Act’). Unsatisfactory professional conduct is defined, in a non-exhaustive way, by s 104A(3) of the Nursing Act. Conduct which satisfies that definition includes:
(a)professional conduct that is of a lesser standard than that which might reasonably be expected of the relevant person by the public or the relevant person’s professional 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.
The Board alleges that the admitted conduct falls within each of those expressions. Mr Clydesdale, in his response to the Board’s referral of the disciplinary proceeding disputed that his conduct amounted to unsatisfactory professional conduct as defined.[3]
[3] See Part D of Mr Clydesdale’s Form 36 Response filed 15 March 2012.
However, in the same response, he sought that the Tribunal impose a suspended penalty.[4] Implicit in this is an acceptance by Mr Clydesdale that his admitted conduct would establish a ground for disciplinary action.[5]
[4] See Part E [1] of the Form 36 Response.
[5] See s 116(1), Nursing Act 1992.
Although initially set down for a two day hearing, the matter proceeded before the Tribunal by way of brief submissions by the parties directed towards a series of orders which were, apart from one matter, proposed to the Tribunal jointly by the parties as an appropriate sanction.

Unsatisfactory professional conduct?

The conduct of Mr Clydesdale clearly falls within the definition of unsatisfactory professional conduct.
In a disciplinary matter such as this, the Tribunal must be constituted by a judicial member.[6] However, in conducting the proceeding the Tribunal must[7] be assisted by three assessors, including two assessors from the nursing and midwifery profession.[8] The function of the assessors is to advise the Tribunal on questions of fact arising during the hearing of the proceeding.[9]
[6]Section 86, Nursing Act 1992; s 398K Health Practitioners (Professional Standards) Act 1999.
[7]Except in matters of urgency; s 87(2) Nursing Act 1992; s 398L(2) Health Practitioners (Professional Standards) Act 1999.
[8]Section 87(1), Nursing Act 1992; s 398L(1) Health Practitioners (Professional Standards) Act 1999.
[9]Section 90(1) Nursing Act 1992; s 398R(1) Health Practitioners (Professional Standards) Act 1999.
Whether the conduct of a member of a profession is of lesser standard than that which might reasonably be expected of the person by the public or the person’s professional peers, and whether such conduct demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in nursing practice, are questions of fact. The Tribunal is able to make findings upon those matters and has the assistance of assessors, both public and from the profession, in doing so. The Tribunal does not need to have expert evidence in order to reach such findings.[10]
[10]Compare Kalil v Bray [1977] 1 NSWLR 256, 256-258 and 260-261 where it was found that the disciplinary tribunal established under the Veterinary Surgeons Act 1923 (NSW) was an expert tribunal and as such did not need expert evidence on matters within its particular field of expertise. The circumstances of the Tribunal were not wholly analogous as the expert veterinary surgeons, together with the Judge, constituted the Tribunal. It was, therefore, truly and of itself, an expert tribunal.
Notwithstanding this, in the proceeding the Tribunal did have the benefit of the opinions of Mr Malcolm Gregory Neilson on these matters. Mr Neilson is highly qualified, through both experience and learning, to express those opinions.[11]
[11]Mr Neilson has for many years occupied senior nursing management roles and his academic qualifications are extensive, including being the holder of three master’s degrees in nursing.
Mr Neilson’s opinion, which the Tribunal accepts, was that Mr Clydesdale’s conduct was ‘very substantially below the conduct expected of a registered nurse’.[12]
[12]Report dated 18 June 2012, para 21: Exhibit “MGN3” to the Affidavit of Malcolm Gregory Neilson filed 25 June 2012.
Ethical and appropriate conduct for nurses is addressed in a number of publications which provide nurses with guidance in their practice of nursing. Those publications include the Code of Professional Conduct for Nurses in Australia (2005); the Code of Ethics for Nurses in Australia (2002); the Statement on Sexual Relationships between Health Practitioners and their Patients (2005); and Guidelines for Registered Nurses and Enrolled Nurses Regarding the Boundaries of Professional Practice (1999).[13]
[13]Each of these documents was exhibited to the Affidavit of Malcolm Gregory Neilson as Exhibits “MGN4”; “MGN5”; “MGN6”; and “MGN7”; respectively.
In Nursing and Midwifery Board of Australia v Heather[14] Deputy President Kingham DCJ usefully distilled the principles to be drawn from various statements contained in those publications to which her Honour had been referred (and which were substantially the same as those to which the Tribunal has been referred in this case) as follows:
[14] [2010] QCAT 423.
·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.
·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.
·Sexual or intimate personal relationships are unacceptable between a nurse and a patient whilst receiving care.
·Any exploitation of the relationship between nurse and patient for the gratification of the nurse is an abuse of power.
·Sexual behaviour with a patient may affect the clinical judgement of the nurse and the management of the patient.
The patient involved in this matter was undoubtedly vulnerable. One need only recite from Mr Clydesdale’s own affidavit to see that this is so. Mr Clydesdale describes his dealing with the patient as having arisen ‘…from the need for me to try and assist him to recover from his alcohol addiction, the breakdown of his marriage and an adjustment disorder.’[15] Mr Clydesdale had met the patient when he (the patient) had presented to the Mental Health Unit of the Royal Brisbane and Womens Hospital; a clear demonstration of his vulnerability.
[15] Affidavit of Keiran James Clydesdale filed 31 May 2012, para 32.

Mr Clydesdale clearly knew of, and appreciated, the patient’s vulnerability. Mr Clydesdale told Dr Ian Lynagh[16] that:
He could see that (the patient) needed ongoing professional assistance and that in his opinion he was not going to get that satisfactorily at Royal Brisbane and Womens Hospital, or from the Army, and that he thought that he was in the best position to be able to help him.
[16]Whose reports were attached to affidavit sworn by Dr Lynagh and filed by the Respondent on 31 May 2012 and 23 October 2012.
In a direct quote of Mr Clydesdale, Dr Lynagh records:
“I was trying to prove that I could take a severely disturbed person and bring that person back to being mentally well.”[17]
[17]Report of Dr Ian Lynagh of 28 May 2012; Exhibit “IL1” to the Affidavit of Ian Lynagh filed 31 May 2012.
From that last statement alone it can be seen that Mr Clydesdale appreciated not only the vulnerability, but also the needs, of the patient. Mr Clydesdale chose to give precedence to his own needs.
This is also evident from Mr Clydesdale having told Dr Lynagh, in the context of his thinking that the patient was suffering from post traumatic stress disorder, that he felt that:
… in some way personally for him (the patient) seemed to fill the gap in his life following his younger brother’s accidental death in the mid 1990s – his brother coincidentally served in the same Army Signals Unit based at Enoggera as (the patient) was attached to at the time.
These findings are sufficient to establish that Mr Clydesdale has engaged in unsatisfactory professional conduct; his conduct being of a lesser standard than that which might reasonably be expected of him by the public or his professional peers and conduct that demonstrates a lack of adequate knowledge, skill, judgment or care in his nursing practice.
However, as the Board also alleges that Mr Clydesdale’s conduct satisfies the description of unsatisfactory professional conduct because it is also infamous conduct in a professional respect; misconduct in a professional respect; and conduct discreditable to the nursing profession, the Tribunal should make findings in that regard.

Infamous conduct in a professional respect

The expressions ‘infamous conduct in a professional respect’ or ‘infamous conduct in any professional respect’, have featured in statutes governing the conduct of various professionals over many years. As Kirby P (as his Honour then was) noted in Pillai v Messiter (No 2)[18] there had been many judicial expressions of regret about the use of the word ‘infamous’ in such statutory formulations.
[18] (1989) 16 NSWLR 197 at 199.
In 1930 in R v General Medical Council[19], Scrutton LJ had said of the phrase when used in an English statute governing the conduct of medical practitioners:
It is a great pity that the word “infamous” is used to described the conduct of medical practitioner who advertises. As in the case of the Bar so in the medical profession advertising is serious misconduct in the professional respect and that is all that is meant by the phrase “infamous conduct”; it means no more than serious misconduct judged according to the rules written or unwritten governing the profession.
[19] [1930] 1 KB 562 at 569.
In 1965, Sugerman J considered the phrase in the context of the then New South Wales statute applying to medical practitioners. After considering earlier cases in both England and Australia, his Honour said:
Consideration of the cases and of the provisions of the legislation in force in this State suggests that the only generalisation as to the meaning in that legislation of “infamous conduct in professional respect”, which can be attempted as capable of application to the varying situations which may arise, is that it refers to conduct which, being sufficiently related to the pursuit of the profession, is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence. Like the word “infamous” such suggested alternatives as “disgraceful” or “dishonourable” or, “shameful” must be understood by reference to this context of professional disapprobation; and due regard must be had to the varying classes of conduct to which these epithets, used in this special professional sense, may come to be applied.[20]
[20] Ex parté Meehan; Re Medical Practitioners Act [1965] NSWR 30 at 35-36.
In observing that the term ‘infamous’ could be used and understood in both an ordinary and a special professional sense, his Honour concluded that some conduct on the part of a professional person may be infamous in the general sense of the word, as well as in the professional sense. Other conduct may be infamous in the professional sense of drawing professional disapprobation, but not be regarded as such in the ordinary sense. Some conduct, he observed, would need to be accompanied by some element of moral turpitude for it to be considered infamous; but such moral turpitude was not necessary in all cases. His Honour gave the example that some departures from accepted procedures in actual practice may rightly be the subject of professional reprobation; and although lacking any element of moral turpitude those cases would, nonetheless, be infamous in the professional sense. Each case must be considered on its own facts.
In 1984, in the context of considering whether the amendment, in 1972, of the Medical Practitioners Act 1938 (NSW) to substitute the expression ‘misconduct in a professional respect’, for ‘infamous conduct in any professional respect’ altered the test to be applied, Priestley JA in Quidwai v Brown observed, after reviewing the earlier decisions:
From the foregoing it seems to me to be right to say that while the words in the Medical Practitioners Act remained “infamous conduct” the test in a case such as the present was whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence.[21]
[21] Quidwai v Brown [1984] 1 NSWLR 100 at 105.
In Nursing and Midwifery Board of Australia v Heather,[22] Deputy President Kingham DCJ said that ‘infamy’ involved an element of notoriety or shamefulness. Her Honour expressed that view by reference to a definition of ‘infamous conduct’ in the Macquarie Dictionary, Third Edition, which had defined the term as ‘…conduct … which competent practitioners of good repute would reasonably regard as disgraceful or dishonourable’.
[22] [2010] QCAT 423 at [22]-[24].
Her Honour’s reference to ‘notorious’ or ‘shameful’ conduct, and the dictionary references to ‘disgraceful’ and ‘dishonourable’ conduct should be understood by reference to the context of ‘professional disapprobation’ referred to by Sugerman J in Ex parté Meehan, and ‘strong reprobation of professional brethren of good repute and competence’ referred to by Priestley J in Quidwai.
Understanding infamous conduct in that way and applying those criteria, I am of the view that Mr Clydesdale’s conduct was clearly infamous conduct in a professional respect. It was a clear and serious breach of the rules of the profession which would rightly incur the strong reprobation of his professional colleagues.

Misconduct in a professional respect

In Pillai v Messiter (No 2)[23] Kirby P also considered the significance, if any, of the amendment in the Medical Practitioners Act 1938 (NSW) which removed the reference to ‘infamous conduct in a professional respect’ and substituted for it the expression ‘misconduct in a professional respect’.[24] His Honour observed that the earlier expression ‘infamous conduct’, and like expressions, were ‘apparently more rigorous’. However, His Honour referred to the judgment of Priestley JA in Quidwai v Brown where it was concluded that the expressions, essentially, meant the same thing. In reaching that conclusion in Quidwai, Priestley JA had noted that:
The whole tenor of Sugerman J’s judgment (in Meehan, ex parté: Re Medical Practitioners Act[25]) was to read “infamous conduct in any professional respect” in a sense corresponding to “misconduct in a professional respect”.
[23] (1989) 16 NSWLR 197 at 199.
[24] This was the same amendment which had earlier been considered in Quidwai v Brown.
[25] [1965] NSWR 30.
In Pillai, Kirby P observed that it was arguable that professional misconduct may introduce for consideration a wider class of conduct than that which satisfied the test for ‘infamous conduct’ but left the question open for a future case.
Whether ‘misconduct in a professional respect’ is any broader than ‘infamous conduct in a professional respect’ such that the former may be satisfied in some circumstances in which the later is not, need not be resolved by the Tribunal in this proceeding; because, for the reasons set out above, the expressions mean substantially the same thing. Furthermore, having found that Mr Clydesdale’s conduct constituted ‘infamous conduct’ in the circumstances of this case, it also certainly constituted misconduct in a professional respect.

Conduct discreditable to the nursing profession

In Nursing and Midwifery Board of Australia v Heather[26] Deputy President Kingham DCJ found that the registrant there had engaged in conduct discreditable to the nursing profession by reference to what Pape J had said in the Supreme Court of Victoria of the expression ‘discreditable to a pharmaceutical chemist’ as contained in the Medical Act 1958 (Vic). Kingham DCJ adopted the words of Pape J where he had said that the relevant conduct was that:
Calculated to destroy or lower public confidence in … (the nurse) … or is injuring the credit or standing of the … (nurse) … in his professional capacity.[27]
[26] Supra.
[27] Mercer v Pharmacy Board of Victoria [1968] VR 72 at 80.
The expression ‘calculated to destroy’ as used by Pape J, and as approved by Kingham DCJ, might be thought to introduce an element of intention on the part of the nurse. In my view, properly understood, it does not.
In formulating the test as he did, Pape J had, in fact, referred to:
… any conduct in relation to the carrying on of the business of a chemist which would be reasonably regarded by other chemists of good professional competence as calculated to destroy or lower public confidence in that chemist, or as injuring the credit or standing of the chemist in his professional capacity. I do not think it necessary that his conduct should be dishonest or fraudulent, or that it should involve any moral turpitude. It is enough if it brings discredit on him as a pharmaceutical chemist or on the profession as a whole.
From this it can be seen that it is how the conduct would be regarded by other members of the profession, rather than any intent on the part of the registrant, which is relevant. ‘Calculated’ as used by Pape J should be understood in the sense of meaning ‘fitted, suited, apt; proper or likely to’.[28]
[28] The Shorter Oxford English Dictionary on Historical Principals, Third Edition 1973.
When understood in that way, it is apparent that ‘conduct discreditable to the nursing profession’ is, again, very close in meaning to the expressions ‘infamous conduct in a professional respect’ and ‘misconduct in a professional respect’.
In Pillai, Kirby P concluded that:
Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[29]
[29] Supra at 200.
Again, on this formulation of the relevant test, Mr Clydesdale’s conduct was clearly discreditable to the nursing profession.
The Tribunal is satisfied that Mr Clydesdale has engaged in unsatisfactory professional conduct on each of the five basis alleged by the Board.

Should Mr Clydesdale’s conduct be seen as grooming?

The Board submits that, notwithstanding Mr Clydesdale’s denials, his conduct should be found to have been grooming of the patient with a view to a sexual relationship. It is said this should be inferred from Mr Clydesdale’s text messages.
The submission is rejected. It is simply not an inference which the Tribunal should (or could) draw on the evidence as a whole.
Mr Clydesdale’s denials have been consistent and date from the text messages themselves.[30] In initially making the submission, Counsel for the Board did not draw attention to the denial contained in Mr Clydesdale’s text messages. Later, Counsel sought to contextualise that denial as only having been prompted by the patient’s own message which indicated that he was not homosexual. However, Mr Clydesdale’s response was immediate and should be understood to have been no more than a clarification of a misunderstanding on the part of the patient of Mr Clydesdale’s earlier text message.
[30] The relevant text messages are set out at paragraph [9](f) above.
Mr Clydesdale maintained his denials when he consulted Dr Lynagh;[31] and when he consulted Dr Prior.[32] It is to be noted that the report of Dr Prior was read by the Board in the proceedings. The Board did not require Mr Clydesdale for cross-examination in relation to any of his denials. Furthermore, the patient gave evidence at Mr Clydesdale’s criminal trial that there had never been any homosexual advances to him from Mr Clydesdale.[33]
[31]Report dated 28 May 2012; Exhibit “IL1” to the Affidavit of Ian Lynagh filed 31 May 2012.
[32]Report of Dr Nigel Prior dated 13 August 2012; Exhibit “CDT1” to the Affidavit of Christopher Templeton filed by leave on 24 August 2012.
[33] Exhibit 4 page 19 line 20.
There is also the evidence as to another explanation for Mr Clydesdale’s interest in the patient, that being the counter-transference issues between himself and the patient stemming from Mr Clydesdale’s identification of the patient with his (Mr Clydesdale’s) deceased brother. Dr Prior seems to accept this in his report tendered by the Board.
The Board’s submission that Mr Clydesdale was grooming the patient with a view to a sexual relationship must, therefore, be rejected.
It should be observed, however, that to focus too much upon whether the relationship fostered, or sought to be fostered, was of a sexual nature tends to distract attention from the fact that such conduct is a serious boundary violation in any event. No doubt a boundary violation which involves exploitation of a vulnerable patient by forming a sexual relationship with him or her may involve a degree of moral turpitude, to use Sugerman J’s expression, absent when the relationship is one of friendship. But that does not diminish the seriousness of a boundary violation that does not have a sexual element.

Appropriate sanction

As noted above, the Tribunal has been provided with submissions as to what would be an appropriate sanction which are, but for one matter, jointly made by the parties.
The purpose of a disciplinary proceeding such as this is not to punish the registrant, but to protect the public and the integrity of the profession.[34] Any sanction which is imposed must serve that purpose; and the sanction proposed by the parties must be considered in that light.
[34] Ooi v Medical Board of Queensland [1997] 1 Qd R 176 at 177.
An important consideration in that regard is that Mr Clydesdale, even now, seems to be lacking in real insight into the inappropriateness and unprofessionalism of his conduct.
In his first report, Mr Lynagh recorded Mr Clydesdale as having said of his relationship with the patient that:
In the beginning I was acting as a Community Health Nurse, seeing a patient in the community, but I became a friend and towards the end it was a sort of mateship.[35]
[35] Report of Dr Ian Lynagh of 28 May 2012 at para 2.5.
In terms of Mr Clydesdale’s insight, Dr Lynagh reports that he said of his relationship with the patient, in retrospect:
What I did wrong was to give him my mobile number in the first place … I should not have done that … I then became involved, controlling his life, his decisions … It could have been done better by other professionals, psychologists, the Army doctors … a case study collegiate approach would have been better …[36]
[36] Report of Dr Lynagh at para 11.5.
After assessing Mr Clydesdale in July 2012, Dr Prior did not consider that Mr Clydesdale had developed genuine insight into his behaviour, even though he had some limited intellectual insight recognising that it was inappropriate and in breach of professional boundaries and in breach of his professional obligations to the patient.[37]
[37]Report of Dr Nigel Prior, 13 August 2012 exhibit “CDT1” to the Affidavit of Christopher Templeton filed with leave on 24 August 2012 at para 16.5.1 and 16.5.3.
Dr Prior noted that in Mr Clydesdale’s affidavit in the proceeding he had emphasised at some length the negative impact which the consequences of his actions had had upon him, but that there appeared to be a lack of understanding as to the actual or potential negative impacts of boundary violations on the patient.[38]
[38] Report of Dr Nigel Prior at para 16.5.2.
The submissions made on Mr Clydesdale’s behalf at the hearing, which again emphasised that his relationship with the patient was merely one of friendship, again suggested that true insight might still be lacking.
As I have already mentioned, the orders proposed are placed before the Tribunal jointly by the parties, except for one controversial aspect. That controversy concerns paragraph 2.6 of the orders proposed by the Board. That order would require Mr Clydesdale to attend an examination by Dr Prior, or another psychiatrist nominated by the Board, to assess whether Mr Clydesdale was fit to return to practice in the nursing profession.
This examination would only be conducted after the Board had received a report by a highly experienced psychotherapist that Mr Clydesdale had developed insight into his behaviour or that further therapy was unnecessary.[39] That report would only be provided after Mr Clydesdale had undertaken a course of long term insight oriented psychodynamic psychotherapy with the psychotherapist, aimed at Mr Clydesdale gaining insight into his conduct, changing his behaviour, and enhancing his personality structure.[40]
[39] Proposed order 2.5.
[40] Proposed order 2.4.
The extent of the controversy is only as to Dr Prior’s involvement. Mr Clydesdale does not oppose the contemplated examination being conducted by any other psychiatrist nominated by the Board.
The reason for the opposition to Dr Prior’s involvement is that in his report of 13 August 2012 he expressed the view that Mr Clydesdale was suffering from a personality disorder.[41] In his report of 17 October 2012, Dr Lynagh expressed the opinion that although he considered that Mr Clydesdale exhibited a number of personality features,[42] he did not consider them to be of sufficient intensity to attract a diagnosis of a personality disorder.[43]
[41] Paragraph 16.1.1.
[42]Cluster A: detached, wary with some mild oddities; Cluster C: detailed, orderly, controlling, hypersensitivity; and Cluster B issues: self-image, relationships, affect, power, adequacy.
[43] Paragraph 3.2.
This difference of opinion as between Dr Prior and Dr Lynagh should not preclude Dr Prior’s involvement in the further assessment of Mr Clydesdale as contemplated in the orders proposed by the Board. Indeed, there is benefit in Dr Prior performing that further assessment given his involvement already. The submissions made by Counsel for Mr Clydesdale[44] acknowledge the benefit to be drawn from a psychologist or psychiatrist having seen the patient at an earlier time.
[44]Although directed in support of Dr Lynagh’s opinion in preference to Dr Prior, Dr Lynagh being a person who had seen Mr Clydesdale over a period of time.

Mr Clydesdale returning to Dr Prior for further assessment would, therefore, not only be appropriate, but desirable. It is to be presumed that Dr Prior will face the task of assessment on that occasion with an open mind and in accordance with his professional obligations, albeit informed by his earlier examination and report.
The Tribunal considers that the orders otherwise proposed by the Board are appropriate and will make orders in those terms.[45]
[45]A slight amendment has been made to paragraph 2.5 of the orders where the expression ‘offending behaviour’ has been replaced with the word ‘conduct’.

Other grounds for disciplinary action

In the amended Part C to the referral, the Board raised as an alternative disciplinary ground that Mr Clydesdale was suffering from an impairment.[46] However, the Board did not make submissions in relation to that disciplinary ground. Given the findings which the Tribunal has made in relation to the other disciplinary grounds, it is not necessary further to consider that issue.
[46] Section 104A(2) Nursing Act 1992.

Matters of costs

The Board seeks its costs. It argues that the Board’s costs are funded by members of the profession and that professionals of good standing should not have to bear the burden of the costs arising from the unprofessional conduct of Mr Clydesdale. There is considerable merit in that submission.
The Board seeks its costs fixed in the sum of $13,500.00. In an affidavit filed by leave on 25 February 2013, Mr Richard Barnes, a director of Rodgers Barnes and Green, deposes to the Board’s solicitor and own client fees, excluding the fees of counsel and experts, as being as in excess of $40,000.00. Mr Barnes also deposes to standards costs usually being assessed at about two thirds of the costs incurred on a solicitor and own client basis.
The Nursing Act permits the Tribunal to make any order about costs considered appropriate, although it limits the maximum amount to $14,850.00.[47]
[47]Section 116(4) of Nursing Act 1992 which imposes a maximum of an amount equivalent to 135 penalty units. Section 5(4) of Penalties and Sentences Act 1992 prescribes a penalty unit to be $110.00.
In all the circumstances, the amount of $13,500.00 sought by the Board is reasonable.
Mr Clydesdale has applied for costs said to have been thrown away because of the adjournment of these proceedings in October 2012. On 24 August 2012 the Tribunal had set the matter down for hearing on 7 and 8 November. On 26 October 2012 the parties were informed by the Tribunal that those hearing dates would be vacated as the Deputy President would be sitting in the District Court in that week. Mr Clydesdale seeks an indemnity certificate pursuant to s 22(1)(c) of the Appeals Cost Fund Act 1973 (“Appeals Cost Fund Act”) in respect of the costs of that hearing.
Section 22 of the Act relevantly provides:
22 Abortive proceedings and new trials after proceedings discontinued
(1) Where after the commencement of this Act—
…
(c) the hearing of any civil or criminal proceeding is discontinued and a new trial ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to the act, neglect or default, in the case of civil proceedings, of any of the parties thereto or their legal representatives, or, in the case of criminal proceedings, of the accused or the accused’s legal representatives, and the presiding judge, magistrate or justice grants a certificate (which certificate the presiding judge, magistrate or justice is hereby authorised to grant)—
(i) in the case of civil proceedings—to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to the act, neglect or default of any of the parties to the proceedings or their legal representatives; or
…
The Appeals Cost Fund Act does not define what is included in the expression ‘any civil proceeding’. However, according to the ordinary meaning of the phrase, it is likely that a disciplinary proceeding in the Tribunal is a civil proceeding. In Green v Council of the Shire of Burnett,[48] Skoien SJDC stated that ‘a “proceeding” has traditionally meant the invocation of the jurisdiction of a court other than a writ.’[49] The Tribunal is a ‘court of the State’[50] and disciplinary proceedings commence by application or referral. Further, the proceeding is between the Nursing and Midwifery Board of Australia and a private individual, whose occupation is the subject matter of the dispute. Civil rights and duties are adjusted in such proceedings since the livelihood and career of the respondent are in issue.[51]
[48] [1995] QPLR 91.
[49] Green v Council of the Shire Burnett [1995] QPLR 91, 92.
[50]Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170, [20] per de Jersey CJ.
[51]See also Chapman v Crime and Misconduct Commission & Rynders [2012] QCATA 16.
It follows that a disciplinary proceeding in the Tribunal’s original jurisdiction is a civil proceeding within the meaning of the Appeals Cost Fund Act.
The word ‘discontinued’ is not defined in the Appeals Cost Fund Act. Discontinuous is defined in the Concise Oxford Dictionary, Eleventh Edition, to mean ‘having intervals or gaps’. It is therefore unlikely the vacated hearing on 7 and 8 November 2012 was ‘discontinued’ within the meaning of the Appeals Cost Fund Act.
In R v Lacey and Lacey[52] the defendants sought indemnity certificates pursuant to s 22(1)(c) of the Appeals Cost Fund Act consequent upon the adjournments of their trial, which was listed to commence on 24 August 2009. On 21 August 2009, the solicitors for the defendants raised the prospect of an adjournment application. The matter was listed for mention later that day. Consequently, the trial was adjourned and the matter was listed for mention on 27 August 2009 and then relisted to commence on 23 February 2010. Rafter DCJ held that s 22(1)(c) of the Appeals Cost Fund Act does not apply to the adjournment of a trial which has not commenced.[53]
[52] [2009] QDC 303.
[53] R v Lacey and Lacey [2009] QDC 303, [21]-[22].
The present disciplinary proceeding can also be distinguished from Green v Council of the Shire of Burnett.[54] In that case, the hearing commenced on 18 July 1994 by an inspection of land (in dispute) at Bundaberg. Upon the first witness being called, on 19 July 1994, the trial judge recognised him and the nature of their association caused the judge to disqualify himself. The judge ordered that the case be heard de novo before another judge on 22 July 1994. The hearing of the civil proceeding had begun; it was, in fact, in its second day.
[54] [1995] QPLR 91.
It could not be said that the hearing of the disciplinary proceeding listed for 7 and 8 November had been discontinued and a new trial ordered since the hearing had not yet commenced, in a practical sense, albeit five direction hearings, one compulsory conference and two on the papers hearings had been conducted.
Mr Clydesdale’s application for an indemnity certificate must, therefore, be dismissed.

Orders

The Tribunal make the following orders:
1.     Mr Kieran Clydesdale is reprimanded.
2.     Mr Clydesdale is precluded from applying for registration as a nurse for a period of 12 months and until he has satisfied the following conditions, whichever is the later:
2.1Mr Clydesdale has completed a course or courses of education, nominated by him and approved in writing by the Board, addressing professional boundary management and the therapeutic nurse-patient relationship;
2.2Mr Clydesdale has provided a report from the provider of the course or courses at paragraph 2.1 confirming successful completion by him;
2.3Mr Clydesdale has successfully undertaken an oral examination before 2 senior nurses, at a time to be nominated by the Board but after receipt of the report referred to in paragraph 2.2, in order to demonstrate a sufficient level of understanding of professional boundary management and the therapeutic nurse/patient relationship;
2.4Mr Clydesdale has undertaken a course of long-term insight orientated psychodynamic psychotherapy with a highly experienced psychotherapist, nominated by him and approved in writing by the Board, aimed at Mr Clydesdale gaining insight into his conduct, changing his behaviour and enhancing personality structure (‘the therapy’). The therapy is to take place at a frequency and for a period determined by the psychotherapist;
2.5Mr Clydesdale has provided to the Board a report of the psychotherapist that he has developed insight into his conduct or that further therapy is unnecessary or not likely to be of benefit;
2.6Mr Clydesdale has, after the Board has received a report from the psychotherapist, attended an examination by Dr Prior, or any other psychiatrist nominated by the Board, to assess whether he is fit to return to practise in the profession.
3.     The following conditions must be imposed upon any future registration of Mr Clydesdale for a period of 12 months, such period to run only whilst he holds active employment as a nurse (‘the 12 month period’):
3.1Mr Clydesdale can only provide nursing care under the indirect supervision of a registered nurse (‘the supervisor’);
3.2the supervisor must be approved by Mr Clydesdale’s employer;
3.3Mr Clydesdale must cause a written logbook to be kept (and provided to the Board 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;
3.4Mr Clydesdale must, within 2 business days of gaining employment as a nurse, notify the Board in writing of:
3.4.1.the name and address of the employer;
3.4.2.the address of his place of employment as a nurse;
3.4.3.the position description at the place of employment;
3.4.4.the name and contact telephone numbers of his supervisor at the place of employment;
3.5Mr Clydesdale must notify the Board within 2 business days of a change in any of the details required by paragraph 3.4 of these orders;
3.6Mr Clydesdale must provide a copy of these orders and the Tribunal’s reasons to his employer, within 7 days of commencing employment, as well as a written authority to the employer to provide a written report to the Board about his ability to practice competently and safely (particularly regarding the issues of patient boundary management) on the following occasions:
3.6.1.at intervals of 3 months from the commencement of his employment;
3.6.2.if the employer holds a concern about his ability to practice competently and safely; and
3.6.3.if requested by the Board;
3.7Mr Clydesdale must, by no later than 14 days after the imposition of this condition on his registration, submit to the Board a written nomination of a registered nurse for approval by the Board as a mentor;
3.8if any nomination by Mr Clydesdale pursuant to paragraph 3.7 is refused by the Board, Mr Clydesdale must, within 7 days of being notified of that refusal, submit a further written nomination to the Board;
3.9as soon as practicable after receiving the Board’s approval pursuant to paragraph 3.7, Mr Clydesdale 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 patients or himself;
3.10Mr Clydesdale must meet the mentor at a frequency to be determined by the mentor during the 12 month period, but no less frequently than monthly;
3.11Mr Clydesdale must provide a copy of these orders and the Tribunal’s reasons to the mentor as well as a written authority to the mentor to provide a written report to the Board about his ability to practice competently and safely (particularly regarding the issues of patient boundary management) on the following occasions:
3.11.1.at intervals of 3 months from the notification date;
3.11.2.if the mentor holds a concern about Mr Clydesdale’s ability to practice competently and safely; and
3.11.3.if requested by the Board;
4.     The conditions referred to in paragraph 3 must be reviewed by the Tribunal at the conclusion of the 12 month period and otherwise in accordance with s 116(2) of the Nursing Act 1992.
5.     All costs and expenses in relation to the matters set out in paragraphs 2 and 3 are to be borne by Mr Clydesdale.
6.     Mr Clydesdale is to pay the Board’s costs of and incidental to these proceedings fixed in the sum of $13,500.00 within 28 days of these orders (or such further time as the Board may allow).

Details

AGLC: Nursing and Midwifery Board of Australia v Clydesdale [2013] QCAT 191
Case: [2013] QCAT 191
Decision Date

CaseChat Overview and Summary

In the matter of Nursing and Midwifery Board of Australia v Clydesdale, the Tribunal was tasked with determining whether Kieran James Clydesdale had engaged in unsatisfactory professional conduct and, if so, what the appropriate sanction should be. The Board alleged that Clydesdale, a registered nurse, had breached professional boundaries with a patient by engaging in inappropriate personal conduct, including providing gifts, accompanying the patient on trips, and sending romantic text messages. The Tribunal found that Clydesdale's conduct constituted unsatisfactory professional conduct, being of a lesser standard than expected, demonstrating incompetence, and discreditable to the nursing profession. The Tribunal rejected the Board's submission that Clydesdale was grooming the patient for a sexual relationship, finding his denials credible. The Tribunal imposed sanctions, including a 12-month suspension from practising as a nurse, conditions for any future registration, and a requirement for ongoing psychological assessment and therapy. The Tribunal also awarded costs to the Board, rejecting Clydesdale's application for an indemnity certificate under the Appeals Cost Fund Act 1973.

Orders