Nursing and Midwifery Board of Australia v Dyason
[2011] QCAT 423
•9 September 2011
| CITATION: | Nursing and Midwifery Board of Australia v Dyason [2011] QCAT 423 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant) |
| v | |
| Suzanne Maree Dyason (Respondent) |
| APPLICATION NUMBER: | OCR164-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 24 June 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Mr David Harry Gill Ms Beryl Anne Valentine Ms Susan Carol Young |
| DELIVERED ON: | 9 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE:
- Ms Dyason’s registration is cancelled.
- Mr Dyason is prohibited from applying for registration until:
2.1A period of 18 months from the date of these orders has elapsed;
2.2Ms Dyason has completed a tertiary level course or courses addressing professional boundary management, the therapeutic nurse/patient relationship and professional ethics, such course or courses to be specified by the Board when requested in writing by Ms Dyason; and
2.3Ms Dyason has completed a course of counselling with a clinical psychologist who specialises in boundary violation issues (‘the counsellor’). The counsellor must be nominated in writing by Ms Dyason and approved in writing by the Board. The purpose of the counselling is to facilitate Ms Dyason developing insight into why she engaged in the behaviour which is the subject of these proceedings and to develop her awareness of professional boundary management strategies. The counselling is to continue until such time as the counsellor considers further counselling is unnecessary for that purpose.
- The following conditions must be imposed upon further registration of Ms Dyason until Ms Dyason has completed 12 months of active employment as a nurse:
3.1Ms Dyason is prohibited from undertaking employment through a nursing agency;
3.2Ms Dyason can only provide nursing care under the indirect supervision of a registered nurse approved by Ms Dyason’s employer. Ms Dyason must ensure a written logbook is kept which records each shift worked by her and the name of the supervisor for each shift. Each entry must be signed by the supervisor. Ms Dyason must produce the logbook to the Board upon request;
3.3Within 7 days of commencing employment, Ms Dyason must provide her employer with a copy of the Amended Part C notice, Statement of Agreed Facts, the Tribunal’s reasons, these orders and a written authority for her employer to report to the Board as to her fitness and competence to practise:
3.3.1If the employer holds a concern about Ms Dyason’s fitness and competence to practise;
3.3.2If requested by the Board to provide a report about Ms Dyason’s fitness and competence to practise;
3.3.3In any event at intervals of 3 months from the commencement date of such employment.
3.4Within 2 business days of gaining employment as a nurse, Ms Dyason must notify the Board in writing of:
3.4.1 The address of her place of employment as a nurse;
3.4.2 Her position description at the place of employment;
3.4.3The name and contact telephone numbers of her superiors at the place of employment.
3.5Within 2 business days of a change in any of the details required pursuant to paragraph 3.4 of these orders Ms Dyason must notify the Board.
3.6Within 14 days of registration, Ms Dyason must nominate in writing a registered nurse for the Board to approve as her mentor. If the Board does not approve the nominee, Ms Dyason must make a further nomination in writing within 7 days. As soon as practicable after the mentor is approved by the Board, Ms Dyason must commence the mentor relationship. Ms Dyason must meet with the mentor at least monthly. The mentoring must focus on professional boundary management and strategies to ameliorate risks arising from the vulnerability of patients or Ms Dyason.
3.7Within 7 days of commencing the mentor relationship, Ms Dyason must provide the mentor with a copy of the Amended Part C notice, Statement of Agreed Facts, the Tribunal’s reasons, these orders and a written authority to the mentor to report to the Board as to her fitness and competence to practise:
3.7.1If the mentor holds a concern about Ms Dyason’s fitness and competence to practise;
3.7.2If requested by the Board to provide a report about Ms Dyason’s fitness and competence to practise;
3.7.3In any event at intervals of 3 months from the commencement date of the mentor relationship.
- The costs of complying with orders 2 and 3 must be borne by Ms Dyason.
- Ms Dyason must 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 further period as the Board may allow.
| CATCHWORDS: | DISCIPLINARY – Nurse – Where nurse employed by Corrective Services – where commenced sexual relationship with prisoner – where nurse concealed relationship from employer and misled Board investigator – where unsatisfactory conduct ultimately conceded – where agreed that registration should be cancelled – whether 3 year preclusion period sought by the Board excessive – whether costs should be awarded Criminal Code (Queensland), s 1 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Gallagher of counsel, instructed by Rodgers Barnes & Green for the Board |
| RESPONDENT: | Mr Pagliarino, solicitor, of Carswell & Company for Ms Dyason |
REASONS FOR DECISION
The conduct
Ms Dyason has been a registered nurse in Queensland since 1989. Between March 2006 and July 2009 she worked at the Maryborough Correctional Centre. In June 2008, she met a prisoner who will be referred to in these reasons as DH. She treated him on about 100 occasions between then and July 2009.
By late June 2009, they had commenced an inappropriate personal relationship. Initially there was no physical contact because of DH’s incarceration, but the relationship was intimate and sexual in nature. The purpose of their correspondence and a large number of telephone calls was to arouse and gratify sexual desire in both.[1] Later the relationship did become physical.
[1]A useful definition of sexual behaviour can be found in the former Queensland Nursing Council’s publication Position Statement: Sexual Relationships between health practitioners and their patients. It provides that: Sexual behaviour is defined as any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desires.
Ms Dyason told the Tribunal she fell in love with DH, and still loves him. She says she terminated their relationship in December 2010, although in evidence she conceded some more recent contact with him.
The pair actively sought to conceal their relationship from Corrective Services. Ms Dyason knew it breached her employer’s code of conduct.[2] They used a nickname from her childhood to mask the identity of the person telephoning and corresponding with DH.
[2]“sexual relationships with offenders are unacceptable and may be unlawful”: Queensland Corrective Services Code of Conduct 23 November 2005 p11; December 2007 p 13.
While Ms Dyason was still working at the correctional centre, DH made multiple telephone calls from the prison to a third party who forwarded them on to a mobile phone in Ms Dyason’s possession. The phone was registered in the pseudonym used by Ms Dyason to conceal their relationship.
After initially agreeing to this aspect of the charge, Ms Dyason later denied possession of the phone. The Board was put to considerable trouble to produce evidence about this. At the hearing, she conceded she possessed it but denied arranging its purchase, giving an implausible account about its sudden appearance on her veranda.
As the gravamen of the charge was that she communicated with DH on the occasions logged for that phone, little turns on how she came to possess it. However, her shifting position about whether she possessed it makes her evidence about how she came to have it unreliable. The Tribunal accepts the Board’s case that Ms Dyason had knowing involvement in the arrangements made for her to communicate with DH by phone.
The ethical standards
The nursing profession has adopted ethical rules that prescribe all forms of sexual behaviour in a relationship between a health practitioner and a current patient as improper and unprofessional.[3]
[3]The Code of Professional Conduct for Nurses in Australia, Australian Nursing & Midwifery Council July 1990 (revised in 2003; 2006) conduct statement 8 at [5]; Position Statement: Sexual Relationships between health practitioners and their patients, Queensland Nursing Council 2008 at [4.3].
One reason for this is the vulnerability of the patient arising from the trust inherent in the therapeutic relationship and the power differential between patient and practitioner.
As a prisoner, DH had particular vulnerabilities. He was isolated socially. He had limited alternative means of emotional support. He had no apparent choice in his treating practitioner.
Ms Dyason was uncooperative during the investigation, making false statements to the investigator and to the then Queensland Nursing Council. On the worst complexion, her statements about the nature or their relationship were deliberately false; on the best, they demonstrated she was ignorant of rules of ethical conduct for her profession.
Ms Dyason admitted her behaviour amounted to unsatisfactory professional conduct.
Despite that admission, during her evidence Ms Dyason tended to downplay her conduct, making partial concessions and only when pressed under repeated questioning. The Tribunal concluded she lacked insight about why her conduct was improper.
During evidence, she sought to draw distinctions based on whether their relationship was physical and whether she was working in the unit at the time it became so. While these matters might mitigate the conduct, they do not necessarily determine whether the relationship was improper.
Even when a sexual relationship commences after the therapeutic relationship ends, it is improper if there is any suggestion the practitioner has exploited a dependency created during the professional relationship.[4] In any case, here, the sexual relationship developed before the therapeutic one ended.
[4]Re A Medical Practitioner [1995] 2 Qd R 154 at 163.
Ms Dyason was equivocal about the ethical standards: at times professing to understand them but not practice them; and at others appearing to be surprised by their scope. Ms Dyason professed not to know, even at the hearing, that the guideline encompassed relationships between a practitioner and a former patient. The Tribunal concluded either she had not read the relevant codes and statements or not understood them.
Whether her ignorance of ethical rules was neglectful or wilful at the time the relationship commenced, the Tribunal is troubled that it persisted for so long after the Board inquired about it. Even more so given Ms Dyason’s subsequent employment.
It seems she worked for a time as a facilitator of nursing students at a University. She told the Board’s investigator that she taught professional issues and understood them.
Her next position was as a nurse on Hayman Island. In that position she worked closely with and socialised with staff who were also under her care. She could not avoid this, practically, because of her work and residential arrangements. However, this presented special challenges in maintaining professional boundaries, and demanded a more sophisticated understanding of this issue than Ms Dyason appeared to have.
The Tribunal notes Ms Dyason did not inform herself or obtain guidance about the ethical standards even after this investigation commenced. Whether Ms Dyason’s apparent ongoing ignorance is disingenuous or real, it presents a risk the Tribunal has taken into account in determining the orders it should make.
The proposed orders
The Board argued the Tribunal should cancel Ms Dyason’s registration and preclude her from reapplying for 3 years. It also proposed orders directed to the risk of further transgression. They involve ethics training and counselling prior to re-registration and, upon registration, a period for which she may not work as an agency nurse, and conditions regarding supervision and mentoring.
The controversy about penalty relates to the preclusion period. Ms Dyason’s representative conceded cancellation was in order, but argued the period proposed by the Board (3 years) was excessive. Instead, he asked the Tribunal to disqualify Ms Dyason for no more than 1 year.
The Tribunal accepts the Board’s submission, except for the preclusion period. The purpose of disciplinary proceedings is not punitive, although that may well be the effect of orders imposed on the practitioner.
Maintaining public confidence and professional standards does call up notions of deterrence: of the practitioner and her colleagues. Cancellation of a practitioner’s registration is a considerable deterrent to both. As well as public condemnation of the practitioner’s conduct, it places an onus on the practitioner to demonstrate her fitness for registration when the preclusion period expires. That is no small matter after the right to practise is removed for improper conduct.
Bearing that in mind, the Tribunal should be cautious to fix the preclusion period after proper consideration of the serious aspects of the practitioner’s conduct but also those features that mitigate it.
The most serious aspects of Ms Dyason’s conduct are:
The relationship commenced while she was treating DH;
She actively sought to deceive both her employer and the Board about it; and
She either neglected or wilfully ignored the professional standards in pursuing and continuing the relationship.
Mitigating circumstances include:
Although his incarceration meant DH was vulnerable, there is no evidence of predatory conduct, rather the evidence suggests it was a consensual and genuine relationship;
She sought the counsel of a friend, who was a psychologist; and
She removed herself from the position in which she cared for him shortly after the relationship commenced.
The Tribunal considers a preclusion period of 18 months is appropriate in those circumstances. In fixing that period, the Tribunal has considered the many decisions of the former Nursing Tribunal, the former Health Practitioners Tribunal and QCAT, to which the Board referred.[5] They do not support a penalty of 3 years here.
[5]Queensland Nursing Council v Bhatnager, Queensland Nursing Tribunal matter 11 of 2000; Queensland Nursing Council v Bell, Queensland Nursing Tribunal matter 5 of 2000; Queensland Nursing Council v Gilbert, Queensland Nursing Tribunal matter 7 of 2000; Queensland Nursing Council v McIntyre, Queensland Nursing Tribunal matter 10 of 2000; Queensland Nursing Council v Telford, Queensland Nursing Tribunal matter 5 of 2001; Queensland Nursing Council v Proctor, Queensland Nursing Tribunal matter 6 of 2004; Queensland Nursing Council v Byrne, Queensland Nursing Tribunal matter 4 of 2005; Queensland Nursing Council v Bains, Queensland Nursing Tribunal matter 7 of 2005; Queensland Nursing Council v Havukainen, Queensland Nursing Tribunal matter 3 of 2006; Queensland Nursing Council v Graham, Queensland Nursing Tribunal matter 16 of 2006; Queensland Nursing Council v Birch, Queensland Nursing Tribunal matter 7 of 2008; Psychologist Board of Queensland v Meredith [2004] QHPT 5; Medical Board of Queensland v Alroe [2005] QHPT; Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423; Psychologist Board of Queensland v Cook [2008] QHPT 4; Nursing and Midwifery Board of Australia v Alexander [2010] QCAT 606.
In Medical Board of Queensland v Alroe (in which a 4 year period was imposed) the psychiatrist put the Board to proof, challenged the patient’s evidence and denied wrongdoing. The Tribunal accepted that he had pursued and manipulated a patient who was particularly vulnerable given the role he occupied as her treating psychiatrist.
In Psychologist Board of Queensland v Meredith (in which a 3 year period was imposed) the psychologist engaged in sexual acts with the patient on 3 occasions when the therapeutic relationship was active. Again, the case involved particular vulnerability because of the emotional dependence inherent in a counselling relationship.
In Nursing and Midwifery Board of Australia v Heather (in which a 2.5 year period was imposed) the nurse ignored specific warnings about the vulnerability of the patient, actively developed emotional dependency while she was in his care and commenced a sexual relationship with her shortly after her discharge.
In each case, sexual activity occurred during the therapeutic relationship or there was an element of grooming and predatory conduct in the course of it. In each case, the patient was particularly vulnerable because of the nature of the practitioner’s therapeutic role as a counsellor: whether overt (as in the case of Alroe and Meredith) or covert (as in the case of Heather).
In this case, although a sexualised relationship commenced while the relationship was on foot, there is no evidence of physical sexual activity while Ms Dyason was the patient’s carer.
Ms Dyason’s evidence about the care she provided the patient was uncontested. She said her role was to apply a TENS machine (a machine used in chronic pain relief) in accordance with the orders of a Doctor. She did not appear to have any counselling function. She said they were never unaccompanied, although the attending officer might be just outside, rather than in the room with them.
The nature of Ms Dyason’s therapeutic relationship with DH is markedly different to the relationships involved in the more serious cases discussed above. Further, Ms Dyason left her position shortly after their relationship commenced.
It is true Ms Dyason sought to deceive her employer and, initially, to mislead the Board. The Tribunal has taken that into account. Ultimately, however, Ms Dyason conceded nearly all the allegations made by the Board and accepted that it was unsatisfactory professional conduct. Certainly she did so in the face of strong evidence and her vacillation about the mobile phone used by them put the Board to unnecessary expense in these proceedings. Nevertheless her concession of the majority of the allegations is a relevant factor in determining what orders the Tribunal should make.
The Tribunal will make the orders requested by the Board, except that the preclusion period will be 18 months, not 3 years. The risk posed by Ms Dyason’s ignorance of the ethical standards, whether wilful or otherwise, is addressed by the other orders proposed by the Board and accepted by Ms Dyason.
Costs
Ms Dyason opposed the Board’s request for an order for costs. These proceedings commenced under the Nursing Act 1992, since repealed. Although a national system of registration and discipline of medical practitioners is now in force, the effect of transitional provisions[6] is that the Board may only recover costs to the cap of $13,500 prescribed under the former Nursing Act 1992.
[6]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 Board fulfils a statutory obligation in bringing these proceedings. They have not conducted them in a way that would tell against an award in its favour. The involvement of counsel, which Ms Dyason complained of, was justified by Ms Dyason’s contest about the allegations involving the mobile phone.
While the order will operate as a further imposition on Ms Dyason, if the Tribunal did not make it, the Board’s costs would be borne by the registration fees of other members of the profession. That is not appropriate in this case. The order sought by the Board will be made.
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