Nursing and Midwifery Board of Australia v Farley

[2011] QCAT 162

CITATION: Nursing & Midwifery Board of Australia v Farley [2011] QCAT 162

PARTIES:	Nursing & Midwifery Board of Australia (Applicant)
v
Ms Elaine Margaret Farley (Respondent)

APPLICATION NUMBER:   OCR123-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham
Deputy President
Assisted by
Ms Mary Barnett
Ms Justine Powell
Mr Bevan Hughes

DELIVERED ON: 12 April 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    The Respondent’s registration is suspended for a period of 18 months from the date of these orders, but the active period of suspension shall be suspended (“the suspension date”) upon:

(i)    the passage of 6 months from the date of these orders; and

(ii)  the respondent satisfying the following conditions –

a)    The Respondent has undertaken cognitive behavioural therapy with a clinical psychologist nominated by the Respondent and approved in writing by the Applicant, such therapy to continue at a frequency to be determined by the psychologist (but to be not less than 15 sessions);

b)   The Respondent has provided to the Applicant a report from the psychologist, at the conclusion of the sessions of therapy, as to her fitness to practice the profession;

c)    The Respondent has undertaken a course of education with Dr Wendy McIntosh addressing the conduct which is the subject of these proceedings and identified in sessions with Dr McIntosh but not before the Applicant provides to Dr McIntosh a copy of the report referred to in paragraph (b);

d)   The Respondent has provided to the Applicant a report from Dr McIntosh, at the conclusion of the education in relation to the Respondent’s knowledge of the management of professional boundaries and the risk of reoffending.

2. This matter is to be brought on for review before the Tribunal pursuant to s 116(2) of the Nursing Act 1992 after the suspension date.

3.    The Respondent shall pay the Applicant’s costs of and incidental to these proceedings on the standard basis on the District Court scale to be assessed by Hickey & Garrett or QICS (as the Applicant may elect) within 28 days of the Tribunal fixing those costs (or such further time as the Applicant may allow).

4.    Liberty to apply on giving not less than seven (7) days notice to the other party.

CATCHWORDS: 

HEALTH PRACTITIONER – DISCIPLINARY MATTER – where the practitioner developed a friendship with a patient – where she divulged information about her personal circumstances including financial problems – where she accepted loans from the patient – where practitioner did not have insight about requirements in maintaining professional boundaries – where practitioner voluntarily underwent further training

Nursing Act 1992, ss 116(2), 104A(3)

Adamson v Queensland Law Society Inc [1990] 1 Qd R 498
HCCC v Horwood [2009] NSWNMT 6
Queensland Nursing Council v Cox, Queensland Nursing Tribunal matter 10 of 2002
Nursing & Midwifery Board of Australia v Brocklehurst [2011] QCAT 71

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Ms Farley agrees she has engaged in unsatisfactory professional conduct in her dealings with a patient who made or arranged substantial loans to her.  After discussions in a compulsory conference in QCAT, the parties have made a joint submission to the Tribunal.  In that submission they have outlined the facts agreed between them and the penalty jointly proposed.  For the reasons which follow, the Tribunal has determined to make the orders jointly sought.

The facts

1. The events occurred between June 2008 and February 2009.  Ms Farley was then 51 years old.  She was first registered as a nurse in Victoria in 1978 and came to Queensland in 1997.  At the time she was an enrolled nurse, close to finishing her nursing degree.

2. Her patient, JB, was a 78 year old resident of a hostel where Ms Farley worked.  JB had a history of giving or attempting to give gifts to the staff of the hostel.  In June 2008 he was assessed by nursing staff as being independent in all activities of daily living.  He managed his own finances and was capable of making informed decisions.

3. JB’s wife passed away sometime around June that year.  During the time Ms Farley worked at the hostel she became friendly with JB.  He met her daughters and went out with her family socially.  It seems that he socialised with them on outings from the hostel and at her family home.

4. It seems that JB became somewhat of a confidante for Ms Farley.  She told him of her personal circumstances, including financial difficulties that she and other members of her family were experiencing.

5. Between June 2008 and February 2009, JB made a number of loans to Ms Farley.  In total, those small loans amounted to $7,000.

6. In October 2008, Ms Farley told JB about her financing arrangements for a car she had bought.  JB offered to arrange a loan of $30,000 so she could pay out the loan and, thereby avoid interest due under a finance plan.  JB did not have the necessary funds available in cash, so he arranged for a friend to lend the money to Ms Farley.

7. While Ms Farley did make monthly car repayments, it is not clear from her bank statements whether the loan was applied to the purpose of paying out the loan.  Ms Farley told JB she would repay the money when an inheritance she was expecting had come through.

8. The transactions came to light in February 2009, when JB complained to a member of staff at the hostel that he had lent money to Ms Farley that had not been repaid.  In a remarkable concurrence of events, the hostel commenced an investigation, Ms Farley’s inheritance came through and she repaid the loans all over a few days in February 2009.  Although she maintained she had done nothing wrong, she resigned her position at the hostel.

Professional standards

1. Ms Farley’s response to the investigation demonstrates a remarkable lack of insight about her conduct.  Even after having had some time to reflect, she maintained her “innocence”.  In a letter sent to the Board in August 2009, she stated the she did not abuse her position of influence and trust and that it had been JB’s choice to befriend her and her family.  She saw the friendship as falling outside the boundaries of the nurse/patient relationship and placed the loans in the context of the personal, not the professional relationship.

2. It is concerning to the Tribunal that Ms Farley was then in her final semester of a nursing degree.  The Tribunal is aware that ethical issues are integrated throughout a number of components of the degree.  By the time a nurse is in her final year, it could be expected that she would have a greater awareness of professional boundary issues than Ms Farley had.

3. Ms Farley cannot transfer responsibility for this onto the patient.  She said it was his choice to befriend her and her family.  Even accepting JB pursued a friendship which she did not initiate, it was Ms Farley’s professional responsibility, not his, to maintain appropriate boundaries with her patient.

4. JB was particularly vulnerable when these loans commenced.  He had recently lost his wife.  His remaining family were 2 adult sons, both intellectually impaired.  The fact that one of Ms Farley’s children is also intellectually impaired may have created a personal empathy that encouraged the friendship.

5. Ms Farley now accepts what it seems she did not recognise then, that the friendship with JB blurred her professional relationship with him as a nurse and placed him at risk of exploitation.

6. There are three documents which define the expectation that nurses will maintain professional boundaries and provide guidance about what that means.  They are the Code of Professional Conduct for Nurses in Australia, the Code of Ethics for Nurses in Australia and Guidelines for Registered Nurses and Enrolled Nurses regarding the Boundaries of Professional Practice 1999.  In summary, the principles adopted in those documents are:

a)Nurses recognise their professional position and do not accept gifts or benefits that could be viewed as a means of securing the nurses’ influence or favour.

b)An inherent power imbalance exists within the relationship between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation.  This power differential must be recognised and managed.

c)Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for.

d)Nurses fulfil roles outside the professional role.  Nurses are aware that dual relationships may compromise care outcomes and always conduct professional relationships with the primary intent of benefit for the person receiving care.

e)Care is optimised when nurses and clients do not engage in dual relationships.  Where dual relationships are unavoidable there is a potential for prejudicial practice to occur.

f)Nurses should recognise that the giving and receiving of gifts and involvement in financial transactions within the nurse-client relationship has the potential to compromise the professional relationship.

1. Ms Farley’s conduct breached her professional boundaries.  She developed a friendship with a patient with whom she socialised outside the therapeutic relationship.  She revealed personal information to him, including about her finances.  She accepted his offers to help her with her problems.

Unsatisfactory professional conduct

1. The Board accepts Ms Farley did not have dishonest intent.  She was personally vulnerable, having fairly recently left an abusive relationship.  At the time, she was suffering from depression.  She had experienced significant trauma involving her two daughters.  One sustained injuries in a serious car accident which left her with an intellectual impairment.  The second left home and lived in distressing circumstances.  These factors may have contributed to Ms Farley’s error of judgment.

2. However the Tribunal is concerned by the strength of Ms Farley’s protestations to the Board, six months later, that she had not behave unethically.  Professor Whiteford, who provided a report about Ms Farley’s psychological condition, observed she was capable of understanding what she was doing, of controlling her actions and of knowing whether her actions were wrong.  Given the stage Ms Farley had then reached in her nursing degree, and her substantial experience as a nurse, her professed ignorance about the ethical issues raised by the friendship and the loans she accepted is hard to explain.  It has the stamp of wilful blindness.

3. The Tribunal does not accept Ms Farley’s compartmentalisation of her relationships with JB into the personal and the professional.  This was a convenient way of rationalising that accepting the loans had no bearing on her professional conduct.  The Tribunal also rejects her assertion that the loan of $30,000 came not from JB but from the original source of the funds.  JB secured the funds from a friend, but the dealings were between Ms Farley and JB and the loan came to her from JB’s bank account.

4. Ms Farley’s conduct is of a lesser standard than would reasonably be expected of her by her professional peers and the public.[1]  She has demonstrated a lack of adequate knowledge of professional standards of conduct[2].  Because it substantially falls short of the standards expected, it qualifies as misconduct in a professional respect.[3]  The Tribunal assumes that the recent indications that Ms Farley now understands and accepts her responsibility in this matter means she has abandoned self serving minimisation of her conduct.

   [1]        Nursing Act 1992, s 104A(3) def of unsatisfactory professional conduct limb (a).

   [2]        Nursing Act 1992, s 104A(3) def of unsatisfactory professional conduct limb (b).

   [3]Nursing Act 1992, s 104A(3) def of unsatisfactory professional conduct limb (d); Adamson v Queensland Law Society Inc [1990] 1 Qd R 498, 507.

The penalty

1. It is to Ms Farley’s credit that she has undertaken a substantial program on ethics with a recognised professional ethics instructor, Dr McIntosh.  She reported that Ms Farley now demonstrates a high level of professional integrity.  The Tribunal has placed significant store on that assessment in deciding to make the orders jointly proposed.

2. The parties seek orders that would suspend Ms Farley’s registration for 18 months, with an order that the suspension is in abeyance once Ms Farley has fulfilled conditions which require her to undergo cognitive behavioural therapy with a psychologist and further instruction by Dr McIntosh once the psychological therapy has concluded.  The matter will then be brought before the Tribunal on review.[4]

   [4]        Nursing Act 1992, s 116(2).

3. The Tribunal accepts the period of suspension is within the range of orders proposed for like conduct.[5]  Remitting the period of suspension is appropriate given Ms Farley repaid the loans and voluntarily sought further professional development.  It will not take effect until at least 6 months have passed and then only if Ms Farley has already complied with the conditions regarding further therapy and training.

   [5]Queensland Nursing Council v Cox, Queensland Nursing Tribunal matter 10 of 2002; HCCC v Horwood [2009] NSWNMT 6.

4. Given those features of the proposed orders, the period of suspension is sufficiently long to act as deterrence to others.  The conditions are framed to promote future observance of professional standards.  The orders proposed are adequate to protect the public, maintain professional standards and maintain public confidence in the profession.

Costs

1. The parties agree the Board should receive an award of costs, but do not agree on the quantum.  The maximum that may be ordered is $13,500.[6]  Ms Farley’s representatives argued the costs order should be fixed at $5,000.  It relied on an order made by the Tribunal in a recent matter.[7]  In that case costs fixed at the sum ordered were agreed between the parties.  The sum ordered did not reflect an assessment by the Tribunal of the costs involved in proceedings which resolve without the need for an oral hearing.

   [6]        Nursing Act 1992, s 116(4).

   [7]        Nursing & Midwifery Board of Australia v Brocklehurst [2011] QCAT 71.

2. Here the Tribunal has no estimate of costs before it.  The proceedings have been resolved in a timely and cost efficient way.  That is due in no small part to Ms Farley’s conduct once the proceedings were instituted.  Her conduct in these proceedings has been taken into account as a mitigating factor in determining the penalty imposed.

3. The work of both parties, including that done by the Board in preparing the material relied upon by the parties, should sound in the assessment of costs overall.  Neither party was represented by counsel.  Appearances were confined to some directions hearings and a compulsory conference.  The Tribunal will make the order sought by the Board.