Nursing and Midwifery Board of Australia v Heather
[2010] QCAT 423
•1 September 2010
| CITATION: | Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423 |
| PARTIES: | Nursing and Midwifery Board of Australia (Applicant) |
| v | |
| Lee James HEATHER (Respondent) |
APPLICATION NUMBER: OCR042-10
| MATTER TYPE: | Occupational Regulation |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham (Deputy President) (Assessors) Ms Jenny Goodwin Dr Trevor Jordan Ms Barbara Soong |
DELIVERED ON: 1 September 2010
DELIVERED AT: Brisbane
ORDERS MADE:
The respondent is prohibited from reapplying for registration, or applying for enrolment or an authorisation to practice nursing until:
1.1. A period of 2.5 years from the date of the these orders has elapsed;
1.2. The respondent has completed a tertiary level course addressing professional boundaries and the therapeutic nurse/patient relationship, such course to be nominated by the respondent and approved in writing by the applicant, such course to be undertaken no earlier than 1 year from the date of these orders;
1.3. The respondent has completed a course of counselling with a psychiatrist or psychologist nominated by the respondent and approved in writing by the applicant, such counselling to continue until the counsellor is of the opinion that further counselling is no longer necessary and the respondent is fit to resume work as a nurse; and the respondent has provided to the applicant a report from the counsellor to this effect;
1.4. He has successfully undertaken an oral examination, at a time to be nominated by the applicant, before 2 senior nurses in order to demonstrate a sufficient level of knowledge of professional boundary issues and the therapeutic nurse/patient relationship; and the applicant has received a report from the 2 senior nurses to this effect.
The following condition must be imposed upon any future registration, enrolment, or authorisation to practice nursing of the respondent:
2.1. That the respondent is prohibited from working as a nurse in a mental health setting.
The following conditions must be imposed upon any future registration, enrolment, or authorisation to practice nursing of the respondent for a period of 12 months after the commencement of such registration, enrolment or authorisation to practice nursing.
3.1. That the respondent must only practice under the supervision of a registered nurse, nominated by the respondent and approved in writing by the applicant, such nurse to be senior to the respondent in both position and years of experience;
3.2. That the respondent must provide a copy of these orders and written authority to his nursing employer, within 7 days of commencing employment, to report to the applicant if the employer holds a concern about the respondent’s fitness or competence to practice, and as requested by the applicant to provide a report about the respondent’s fitness and competence to practice, and, notwithstanding the lack of any such a request, at 6 and 12 months from the date of such employment.
3.3. That the respondent must, within 2 business days of gaining employment as a nurse, notify the applicant in writing of:
3.3.1 The name and address of the employer, and if listed with a nursing agency, the name and address of that agency;
3.3.2 The address of his place of employment as a nurse;
3.3.3 The position description at the place of employment;
3.3.4 The name and contact telephone numbers of his supervisors at the place of employment, and if listed with a nursing agency, the name and contact telephone numbers of the person with whom he liaises at the agency.
3.4 That the respondent must notify the applicant within 2 business days of a change in any of the details required pursuant to paragraph 5.3 of these orders.
The costs of complying with paragraphs 1, 2 and 3 of these orders must be borne by the respondent.
Each party is to bear its own costs of these proceedings.
| CATCHWORDS : | DISCIPLINARY – Nurse – where nurse commenced a personal relationship with a patient – where patient vulnerable – where nurse took steps to avoid detection – where nurse ignored specific warnings about boundary violation – where disciplinary grounds established – whether agreed proposed orders appropriate Health Practitioners (Professional Standards) Act 1999 ss 405L, 405P(1), s405P(5) Nursing Act 1992 ss 102D, 104A(i), 116(h) Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 followed Queensland Nursing Council v Fletcher [2009] QCA 364 applied Mercer v The Pharmacy Board of Victoria [1968] VR 72 followed |
REASONS FOR DECISION
Mr Heather has been a registered nurse for 16 years. Although he is no longer registered, the Tribunal may take disciplinary action against him[1] as if he still were.
[1] Nursing Act 1992 s 102D
These proceedings 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.[2]
[2] 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
Mr Heather has admitted to most serious conduct which will result in severe consequences for his career. Mr Heather has actively participated in these proceedings and reached an agreement with the Board about the facts in this matter. That has saved the Board considerable time, trouble and expense in establishing the case against him.
In written submissions to the Tribunal, Mr Heather said:
‘I do, of course, realise that I have made a very serious error of judgement in these circumstances. Previously to this I had been a Registered Nurse for 16 years and have never received a complaint regarding my clinical practice or in fact my personal conduct. I have had an unblemished nursing career and unfortunately have now seriously jeopardised my future in the profession. I do, however, accept the consequences of my actions which have been considerably less than professional. I continue to reflect on the matter.’
Mr Heather’s conduct of these proceedings suggests his expression of remorse is genuine and he has insight, now, about his behaviour.
The conduct
Mr Heather worked in an eating disorder clinic within the mental health unit of a public hospital. Over a two month period he cared for a patient undergoing a naso-gastric[3] feeding program, who was admitted on referral by her treating psychiatrist. The patient was most vulnerable, with a background of sustained eating disorder and depression. Her vulnerability was complicated by her misfortune in having been the victim of incest. She had been diagnosed as suffering from a borderline personality disorder which led her to believe that relationships must be sexualised in order for her to feel self worth.
[3] Food is passed into the stomach through a small-bore plastic or rubber tube via the nose, pharynx and then oesophagus.
Mr Heather well knew this background. He and other staff of the unit had been briefed by the Director of the clinic and by the patient’s treating physician. They were warned of the need to maintain clear and stringent professional boundaries with the patient.
Mr Heather had extensive access to the patient during her period of hospitalisation. At the time, the patient’s marriage was subject to significant tensions. Despite the information he had been given, and the clear warnings he had received, Mr Heather exploited the intimacy of the nurse patient relationship. He commenced an unauthorised counselling relationship with her.
From the outset, it appears, Mr Heather was careful to ensure no one else would know about this. He invited the patient to tell him anything she wanted to share on his assurance that he would not enter it into her clinical records and would keep it between them. He provided her with a journal in which to record her thoughts. Over time, the patient’s journal entries started to refer to Mr Heather. He urged her to use a pseudonym to refer to him. He asked her to write letters detailing difficult incidents in her past, including those whilst growing up, and the state of her relationship with her husband. The patient disclosed intensely personal matters to him.
It goes without saying there was a power imbalance between the patient and nurse. Mr Heather exploited that in developing an atmosphere of confidence, trust and secrecy between them. Against that backdrop the relationship crossed the professional boundary and became a personal one.
Mr Heather told the patient he had a special interest in her. He provided her with his mobile telephone number. He accompanied her on outings. He took steps to prevent them being seen together outside the hospital. Their relationship became physical. Once the investigation into his conduct commenced, Mr Heather sought to influence the patient to give false evidence to the investigators.
A particularly egregious aspect of Mr Heather’s conduct is that it persisted after the Director of his unit warned him he had been observed to be too close to the patient and reiterated the specific warnings about boundary issues with this patient.
Whilst the parties have agreed the conduct constitutes unsatisfactory professional conduct, that is a matter the Tribunal must be satisfied of.
There are a number of documents which provide ethical and practice guidance for nurses:
· The Code of Professional Conduct for Nurses in Australia;
· The Code of Ethics for Nurses in Australia;
· Guidelines for Registered Nurses and Enrolled Nurses Regarding the Boundaries of Professional Practice 1999; and
· Scope of Practice Framework for Nurses and Midwives Policy Positions Statement – Sexual Relationships between Health Practitioners and their Patients.
I have been referred to a number of specific clauses or statements in those documents.[4] The guidance in those passages to which I have been referred, may be distilled as follows:
[4] 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
· 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 relationship is 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.
This patient was particularly vulnerable. Mr Heather’s conduct was a gross violation of the trust inherent in the therapeutic relationship. He had been warned before treating the patient, along with other staff, to observe proper boundaries. He was then later warned when others observed that he had formed too close a connection with her. In the face of both of those warnings Mr Heather pursued an inappropriate counselling relationship which became a sexual relationship, whilst she was in his care. Inappropriate contact continued after she was no longer his patient. He sought to undermine her relationships with others. He knew what he was doing was improper. He actively sought to conceal it.
Disciplinary findings
The Board submitted Mr Heather’s conduct was unsatisfactory professional conduct in a number of respects, namely:
(a) Professional conduct that is of a lesser standard than that which might reasonably be expected of the respondent by the public or the respondent’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; and
(e) Conduct discreditable to the nursing profession[5].
[5] Nursing Act 1992 s 104A(i)
The Tribunal finds Mr Heather’s conduct is unsatisfactory professional conduct in each of the respects alleged by the Board.
There can be no argument that Mr Heather’s conduct was of a lesser standard than might reasonably be expected by the public and his peers. His disregard of specific warnings about the need to observe boundaries with this vulnerable patient, demonstrates his lack of judgement and care in nursing practice.
The Board submitted that the tests to be applied in determining whether conduct was ‘infamous conduct in a professional respect’ or ‘misconduct in a professional respect’ are the same or substantially the same.
In determining what is misconduct by a legal practitioner, His Honour Thomas J stated the question as:
‘…whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency’[6]
[6] Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 at 507
Whilst the degree to which the conduct departs from accepted standards may be substantial, I consider there is a further element involved in a finding that a practitioner has engaged in “infamous conduct in a professional respect.” The concept of infamy involves notorious or shameful conduct.
The definition of infamous conduct in the Macquarie Dictionary 3rd Edition is:
‘Infamous conduct n professional conduct by medical and dental practitioners, etc., which competent practitioners of good repute would reasonably regard as disgraceful or dishonourable.[7]
[7] Delbridge, A et al (eds), The Macquarie Dictionary (3rd ed, 1997) 1092
A practitioner could, to a substantial degree, fall short of the standard of professional conduct observed by members of good repute and competency without having engaged in shameful or notorious conduct.
In this case, although tests differ, the conduct admitted to qualifies as both misconduct in a professional respect and as infamous conduct in a professional respect.
It also qualifies as conduct discreditable to the nursing profession. This is not a case where the practitioner has, outside the scope of his work duties, engaged in disgraceful behaviour. His offending has occurred, almost entirely, within the bounds of his nurse patient relationship. It reflects directly on him as a nurse. It is conduct that can fairly be described as:
‘Calculated to destroy or lower public confidence in…(the nurse)…or as injuring the credit or standing of the…(nurse)…in his professional capacity.[8]’
[8] Mercer v The Pharmacy Board of Victoria [1968] VR 72 at 85 per Pape J
I am satisfied Mr Heather’s conduct brings discredit on him as a nurse and has the capacity to lower public confidence in his profession as a whole.
Disciplinary Sanction
The parties have proposed agreed orders. There is no dispute the appropriate sanction is to prohibit Mr Heather from reapplying for registration or applying for enrolment or an authorisation to practice nursing until certain events have occurred. They are:
(a) The passage of two and a half years from the date of the orders;
(b) Completion of an appropriate tertiary level course regarding professional boundaries and nurse patient relationships;
(c) Counselling to address the conduct involved in these proceedings; and
(d) Examination of Mr Heather by two senior nurses regarding boundary issues.
The parties agree Mr Heather should be prohibited from working as a nurse in a mental health setting. One purpose of disciplinary proceedings is to protect the public. Those who treat particularly vulnerable patients, such as those who suffer a mental illness, must be beyond reproach. Mr Heather’s conduct places him outside the company of practitioners who can be trusted to care for the especially vulnerable.
Mr Heather has shown genuine remorse and insight and these are positive indications for his future rehabilitation. The preconditions to future registration are sufficient to protect the public generally. Nevertheless, the Tribunal does not consider it is appropriate, even after those preconditions are met, for Mr Heather to work as a mental health nurse.[9]
[9] Queensland Nursing Council v Fletcher [2009] QCA 364 per Chesterman JA at [93]; Nursing Act 1992 s 116(h)
The non preclusion period of two and a half years may, in the circumstances of this case, appear to be shorter than might otherwise have been ordered. However, the preconditions are rigorous and comprehensive. Mr Heather will undergo training, counselling and assessment about his acceptance and appreciation of boundary issues. Further, the preclusion period recognises Mr Heather’s cooperation. If it had been contested, the patient would have been required to give evidence and subject herself to cross examination. Her personal vulnerability means this would have been especially burdensome. It is right that Mr Heather’s stance in these proceedings is reflected in the sanction imposed.
The proposed orders also involve substantial supervision of Mr Heather for a period of twelve months post registration, enrolment or authorisation. Mr Heather will be supervised by a registered nurse, senior to him in position and years of experience. He will authorise his employer to report to the Board after six months and then after twelve months from the date of his employment and whenever the employer holds a concern about his fitness or competence to practise or whenever the Board requests the employer provide such a report.
Those conditions provide assurance that Mr Heather cannot resume nursing until he has demonstrated his rehabilitation and will be effectively monitored during his first twelve months after return to practise.
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