Nursing and Midwifery Board of Australia v Jackson

[2013] WASAT 140

NURSING AND MIDWIFERY BOARD OF AUSTRALIA and JACKSON [2013] WASAT 140

Last Update :03/11/2016

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 140
Published:
Act:	HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
Case No:	VR:133/2013	Heard:	26 AUGUST 2013
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT), MS M CONNOR (MEMBER), DR B JONES (SESSIONAL MEMBER)	Delivered:	03/09/2013
No Pages:	21	Judgment Part:	1 of 1
Result:	Practitioner found guilty of professional misconduct in two respects Practitioner reprimanded and disqualified from applying for registration as a registered health practitioner for two years Practitioner ordered to pay costs and disbursements assessed at $2,069
Category:	B

Parties & CatchwordsOrders
Summary


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : NURSING AND MIDWIFERY BOARD OF AUSTRALIA and JACKSON [2013] WASAT 140 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)

MS M CONNOR (MEMBER)
DR B JONES (SESSIONAL MEMBER)

HEARD : 26 AUGUST 2013 DELIVERED : 3 SEPTEMBER 2013 FILE NO/S : VR 133 of 2013 BETWEEN : NURSING AND MIDWIFERY BOARD OF AUSTRALIA

Applicant

AND

MARK JACKSON
Respondent

Catchwords:

Vocational regulation - Nurse - Professional misconduct - Failure to maintain proper professional boundaries with patient - Providing financial assistance to patient and entering into residential lease with patient - Sexual relationship with patient - Failure to provide adequate documentation of consultations with patient - Mental health patient - Penalty - Remorse - Insight

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1)(a)
Health Practitioner Regulation National Law (Western Australia), s 5, s 193(1), s 196(2), s 196(2)(a), s 196(4)
Physiotherapists Act 1950 (WA), s 16(aa)
Physiotherapists Regulations 1951 (WA), reg 20
State Administrative Tribunal Act 2004 (WA), s 87(2)

Result:

Practitioner found guilty of professional misconduct in two respects
Practitioner reprimanded and disqualified from applying for registration as a registered health practitioner for two years
Practitioner ordered to pay costs and disbursements assessed at $2,069

Summary of Tribunal's decision:

The Nursing and Midwifery Board of Australia alleged that Mr Mark Jackson, a registered nurse, engaged in professional misconduct by failing to maintain proper professional boundaries with a patient and by failing to provide adequate documentation of his consultations with the patient. The particulars of the allegation of failing to maintain proper professional boundaries with the patient included that Mr Jackson engaged in a sexual relationship with the patient. The patient was a mental health patient with a diagnosis of paranoid schizophrenia.
Mr Jackson admitted the particulars of the conduct in relation to the allegation that he failed to maintain proper professional boundaries with the patient. Although Mr Jackson did not admit that he failed to provide adequate documentation of his consultations with the patient, the absence of any notes of his consultations with the patient in the patient's medical records demonstrated that he failed to provide adequate documentation of the consultations.
Mr Jackson expressed remorse for his conduct when the allegations were first made and in the proceeding. He also expressed concern for the patient, but did not demonstrate any real awareness or insight as to how his conduct and significant breach of trust and confidence that it involved may have impacted or affected her. Mr Jackson asserted, and the Nursing and Midwifery Board of Australia did not contest, that Mr Jackson suffered from mental health problems himself at the time of the conduct the subject of the allegations. However, there was no evidence that the conduct the subject of the allegations was caused or contributed to by Mr Jackson's mental health problems.
The Tribunal found Mr Jackson guilty of professional misconduct in relation to each of the allegations. The Tribunal determined that the appropriate disciplinary consequence of Mr Jackson's professional misconduct is a reprimand and, as Mr Jackson is no longer a registered health practitioner, disqualification from applying for registration as a registered health practitioner for a period of two years.
Mr Jackson was also ordered to pay the costs and disbursements of the Nursing and Midwifery Board of Australia assessed in the sum of $2,069.

Category: B

Representation:

Counsel:

Applicant : Ms AK Farnworth with Mr DP Spencer
Respondent : In person

Solicitors:

Applicant : Australian Health Practitioner Regulation Agency
Respondent : N/A

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1939) 60 CLR 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
Health Care Complaints Commission v Brown [2013] NSWNMT 8
Health Care Complaints Commission v Twomey [2013] NSWNMT 6
Hoile v The Medical Board of South Australia (1960) 104 CLR 157
Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13.11.92)
Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)
Medical Board of Australia and Costley [2013] WASAT 2
Medical Board of Australia and Woollard [2012] WASAT 209 (S)
Physiotherapists Registration Board of Western Australia and Lipscombe [2005] WASAT 314

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 The Nursing and Midwifery Board of Australia (Board) has referred two allegations of professional misconduct against Mr Mark Jackson (practitioner) to the Tribunal under s 193(1) of the Health Practitioner Regulation National Law (Western Australia) (National Law). The National Law applies as a law of Western Australia under s 4(1)(a) of Health Practitioner Regulation National Law (WA) Act 2010 (WA).

2 The allegations referred by the Board to the Tribunal are that, during the period from August 2010 to November 2010, the practitioner who was then a registered health practitioner under the National Law and in particular a registered nurse, engaged in professional misconduct as defined in s 5 of the National Law in that he:

1) Failed to maintain proper professional boundaries with a patient Ms L (Ms L or patient) in that he:
(a) arranged transport for the patient and her daughter to relocate to crisis accommodation;

(b) provided financial assistance to the patient, including paying the patient's rental bond, paying four weeks rent for the patient and purchasing furniture and other household items for the patient;

(c) entered into a residential lease with the patient; and

(d) engaged in a sexual relationship with the patient.

2) Failed to provide adequate documentation of his consultations with the patient.

3 In a letter to the Tribunal dated 16 July 2013 and at a directions hearing before the President Justice Chaney on 23 July 2013 which the practitioner attended by telephone, the practitioner admitted the conduct the subject of the first allegation. Although the practitioner did not admit the conduct the subject of the second allegation, at the final hearing the Board tendered the patient's medical records which do not contain any notes or other documentation evidencing or recording the practitioner's consultations with the patient (other than a letter which the practitioner wrote to the Patricia Giles Women's Refuge (refuge) in relation to the patient dated 2 September 2010). The absence from the patient's medical records of any notes or other documentation of consultations with the patient clearly demonstrates that the practitioner failed to provide adequate documentation of his consultations with her.

4 In his letter to the Tribunal dated 16 July 2013, the practitioner said that:

I request that the SAT make a determination in my absence, for the right course of action and penalty if deemed appropriate, so be it.

5 The practitioner was telephoned by the Tribunal for the purposes of the directions hearing. The practitioner said during the directions hearing that:

I'm happy now to put the matter totally into your hands. (T:7.8; 23.07.13).

6 The practitioner made submissions essentially in relation to penalty and then said that:

I don't really have anything more to add. (T:7.9; 23.07.13).

7 Order 3 of the programming orders made by the President on 23 July 2013 listed the matter for final hearing on 26 August 2013 'on the basis that Mr Jackson may not appear but may rely on his correspondence and submissions made on 23 July 2013 at the directions hearing'. However, in order to ensure fairness to him, Mr Jackson was telephoned by the Tribunal at the commencement of the final hearing and he participated in the final hearing by telephone. Mr Jackson made two submissions in reply to the Board's written submissions on penalty (which are addressed below). Mr Jackson then said:

… I accept whatever the penalty [the Tribunal imposes.] I'm not going to be arguing with that.

8 In vocational disciplinary proceedings, the 'final hearing' is usually a two stage process, with the first stage only involving a determination of whether the allegation or allegations against the practitioner have been established. If the allegation or allegations have been established, then the second stage involves the determination of the appropriate penalty. However, it is clear from the transcript of the discussion at the directions hearing that the matter was listed for final hearing on 26 August 2013 in relation to both whether the practitioner is guilty of professional misconduct and, if so, and indeed, principally, in relation to penalty. Mr Jackson's statements to the Tribunal at the final hearing are consistent with this approach.

Background

9 During the period from August 2010 to November 2010, the practitioner worked as a registered nurse at the Peel and Rockingham Kwinana Mental Health Service (service). On 18 August 2010, the practitioner was assigned as the case manager for Ms L who was an outpatient of the service.

10 In March 2006, Ms L had been diagnosed with paranoid schizophrenia. Her condition fluctuated over the next four and a half years. In early 2010, the patient was hospitalised after a psychotic episode in which she made several attempts at suicide. She was released from hospital in February 2010. According to a report of a psychiatrist in April 2010, the patient still had fleeting suicidal thoughts, paranoid thoughts and suffered auditory hallucinations. In July 2010, a psychiatrist reported to the patient's general practitioner that:

Her mood and suicidal ideation have settled. She continues to experience daily non­distressing auditory hallucinations, and persecutory beliefs about her neighbours. She coped very well with a recent house move and her marital relationship is more settled.

11 In a statement dated 6 April 2011, the patient said that she decided to leave her husband about two weeks after the practitioner became her case manager. This is consistent with the letter written by the practitioner to the refuge on 2 September 2010 in which he sought assistance for the patient and said that she reported 'a marriage of sexual, psychological and at times physical abuse'.

12 The practitioner admits that he arranged transport for the patient and her daughter to relocate to crisis accommodation, provided financial assistance to the patient, including paying the patient's rental bond, paying four weeks rent for the patient and purchasing furniture and other household items for the patient, entered into a residential lease with the patient, and engaged in a sexual relationship with the patient. The practitioner admits that, at the time that he arranged for transport for the patient and her daughter to crisis accommodation, provided financial assistance to the patient and entered into a residential lease with her, he had a professional relationship with the patient as her case manager. The practitioner said in a letter to the Australian Health Practitioner Regulation Agency (AHPRA) dated 20 December 2012 that, during this period, 'the relationship boundaries rapidly became blurred'.

13 The practitioner said at the directions hearing that Ms L was discharged from his care whilst she was at the refuge and '[s]o technically, not that it matters, the sexual relationship began after she was discharged from my care' (T:5.2; 23.07.13). The practitioner said that:

I'm not saying that's an excuse but it is a factor. (T:5.3; 23.07.13).

14 However, in his letter to AHPRA dated 20 December 2012, the practitioner said that:

Yes, I did have a consentual [sic] sexual relationship with the patient. This is unacceptable from a professional and moral standpoint.

15 Furthermore, in her statement dated 6 April 2011, the patient said that the sexual relationship with the practitioner began when she was living at the refuge and occurred over a couple of weeks and also when she moved to her unit which the practitioner and she rented.

16 It appears, therefore, that the sexual relationship between the practitioner and the patient commenced when the practitioner was the patient's case manager. However, even if the sexual relationship commenced shortly after Ms L ceased to be the practitioner's patient, as the practitioner acknowledged at the directions hearing, that is of little, if any, consequence. The sexual relationship between the practitioner and the patient cannot be divorced from the health practitioner/patient relationship, given that it was part of a course of conduct of failure to maintain proper professional boundaries and commenced either while Ms L was the practitioner's patient or shortly afterwards.

Is the practitioner guilty of professional misconduct?

17 As noted earlier, the practitioner admits the conduct the subject of the allegation that he failed to maintain proper professional boundaries with the patient. On the basis of the practitioner's admissions and the patient's statement dated 6 April 2011, we find that the conduct the subject of this allegation occurred.

18 Although the practitioner does not admit the conduct the subject of the allegation that he failed to provide adequate documentation of his consultations with the patient, the absence of any notes or other documentation (other than the letter to the refuge) evidencing or recording his consultations with Ms L in her medical records demonstrates, and we find on a balance of probabilities and applying the Briginshaw approach (see Briginshaw v Briginshaw (1939) 60 CLR 336 and Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163 at [62] ­ [65]), that the practitioner failed to provide adequate documentation of his consultations with the patient. The absence of any notes or other documentation (other than the letter to the refuge) in the patient's medical records constitutes clear and cogent evidence of the alleged conduct and the Tribunal feels an actual persuasion that the practitioner failed to provide adequate documentation of his consultations with the patient.

19 Section 5 of the National Law contains the following definition of 'professional misconduct' for the purpose of the National Law:

professional misconduct, of a registered health practitioner, includes ­

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession;

20 It is apparent from the word 'includes' in this definition that the intention of the legislation is that the three paragraphs that follow are simply examples of 'professional misconduct' for the purposes of the National Law and are not an exhaustive statement of that term. Thus, 'professional misconduct' under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example, conduct which was characterised as professional misconduct or equivalent under earlier vocational disciplinary legislation. Furthermore, as is apparent from the example of professional misconduct in the third paragraph of the definition ('… whether occurring in connection with the practice of the health practitioner's profession or not …') and from cases under disciplinary legislation prior to the National Law, 'professional misconduct' can include conduct in a practitioner's personal life where there is a sufficient nexus with the practitioner's profession: see Hoile v The Medical Board of South Australia (1960) 104 CLR 157. In that case, the High Court of Australia held that it was open to the Medical Board of South Australia to find that a medical practitioner, who was the medical superintendent of a country hospital, was guilty of 'infamous conduct in a professional respect' by engaging in sexual intercourse with a nurse during hours of duty in patient cubicles at the hospital. On at least two occasions, the nurse was on night duty at the time that the medical practitioner and the nurse had sex, and on at least one occasion the nurse was the only member of the nursing staff on duty at that time. The High Court reasoned at 163 as follows:

However much the general moral aspect of the matter may be emphasized as going to the relationship between man and woman, it remains true that the place was the hospital, the woman was a nurse, the man was a doctor and moreover superintendent of the hospital. It arose out of a relationship professionally established and it was destructive of the position he should have held in the hospital and of his influence. All these are matters enabling the Board to find as they did.

21 The definition of the term 'unprofessional conduct' (which is referred to in paragraphs (a) and (b) in the definition of 'professional misconduct') in s 5 of the National Law begins as follows:

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner's professional peers, …

22 The definition then states 'and includes' followed by eight paragraphs containing examples of 'unprofessional conduct' which it is unnecessary to set out in these reason. Like the definition of 'professional misconduct' in s 5 of the National Law, the definition of 'unprofessional conduct' is not an exhaustive statement of that term.

23 In Physiotherapists Registration Board of Western Australia and Lipscombe [2005] WASAT 314 (Lipscombe), the Tribunal stated at [43] that:

There can be no doubt that sexual involvement of a health professional with a patient amounts to serious professional misconduct.

24 This statement was made in the context of determining whether a physiotherapist was guilty of 'misconduct in a professional respect' for the purposes of reg 20 of the Physiotherapists Regulations 1951 (WA) made pursuant to s 16(aa) of the Physiotherapists Act 1950 (WA). However, in our view, the Tribunal's statement in Lipscombe at [43] is equally applicable in relation to the term 'professional misconduct' in the National Law, whether or not the conduct is regarded as falling within paragraph (c) of the definition of 'professional misconduct' in s 5 of the National Law. A sexual relationship between a health practitioner and a patient at a time when there is a professional relationship between them, or shortly afterwards, has a sufficient nexus with the practitioner's profession to constitute 'professional misconduct'. For reasons discussed below, a sexual relationship between a health practitioner and a patient during or shortly after a professional relationship between them constitutes serious 'professional misconduct'.

25 Furthermore, in our view, the failure to maintain proper professional boundaries by arranging transport for the patient and her daughter to relocate to crisis accommodation, providing financial assistance to the patient, including paying the patient's rental bond, paying four weeks rent for the patient and purchasing furniture and other household items for the patient, and entering into a residential lease with the patient, also constitutes 'professional misconduct' for the purposes of the National Law. The maintenance of proper professional boundaries is fundamental and essential for appropriate practise as a health practitioner. The failure to do so is serious 'professional misconduct', whether or not it falls within the example of 'professional misconduct' in paragraph (c) of the definition of that term in s 5 of the National Law. Although the professional relationship between the practitioner and Ms L technically ended while she was at the refuge and possibly prior to elements of this conduct, there is a sufficient nexus between the conduct and the practitioner's profession as the course of conduct commenced while Ms L was his patient and all of the conduct occurred during or shortly after their professional relationship.

26 In our view, the practitioner's failure to provide adequate documentation of his consultations with the patient also constitutes 'professional misconduct' under the National Law, because it falls within paragraph (a) of the definition of that term in s 5 in that it is 'unprofessional conduct', that is, 'professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers', 'by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience'. In our view, the practitioner's failure to provide adequate documentation of his consultations with the patient is conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, because the maintenance of full, contemporaneous notes of consultations with patients is essential for their future care, the practitioner had at least 12 years' experience as a mental health nurse, and the practitioner kept no notes of his consultations with the patient. For an experienced nurse not to provide any patient notes or other relevant documentation in relation to consultations with a patient is conduct that is substantially below the standard reasonably expected of the practitioner by the public and his or her professional peers.

27 The practitioner is therefore guilty of professional misconduct in relation to each of the two respects alleged by the Board.

What is the appropriate disciplinary consequence of the practitioner's professional misconduct?

Board's submissions

28 The practitioner resigned his position with the service in April 2011 and subsequently surrendered his registration to the Board. He is not currently registered under the National Law and said in his letter to the Tribunal dated 16 July 2013 that he does not intend on reapplying to practise as a registered nurse.

29 The Board submits that, in these circumstances, the appropriate penalty is for the practitioner to be reprimanded and to be disqualified from applying for registration with the Board for a period of one to two years. The Board also seeks an order for the practitioner to pay the Board's professional costs and disbursements of this proceeding.

30 The Board submits that although the practitioner has 'demonstrated some remorse, there is no evidence to suggest that he has any insight into the effect that his conduct had on the health and well being of the [p]atient, who, at the time that the conduct occurred, was in a very vulnerable position'.

31 The Board also submits that 'this is further evidenced' by the practitioner's letter to AHPRA dated 20 December 2012 'in which he attempted to normalise his behaviour'.

Practitioner's submissions

32 The practitioner made a number of submissions in mitigation in his correspondence and at the directions hearing. He said that, after leaving school at the age of 15, he got an apprenticeship and then completed the equivalent of high school at night. He obtained his nursing qualifications and 'got a clinical excellence award when I finished my training as a nurse and I have got letters of commendation on my file' (T:5.7; 23.07.13).

33 The practitioner said that 'I can truthfully honestly say to you that this was totally out of character, what happened, and I was unwell at the time' (T:4.5; 23.07.13). In particular, the practitioner said that he suffered 'a deep depression' in September 2010 and suffered from Post Traumatic Stress Disorder (PTSD) as a result of his work as a mental health nurse and having been exposed to threatening behaviour in his employment. He also said that his heavy workload of over 50 clients at the time took its toll on him.

34 In his letter to AHPRA dated 20 December 2012, the practitioner said that his intentions in relation to the patient were 'in good faith and not malicious or bad' and that 'the relationship boundaries rapidly became blurred and were an indication of my poor mental state at the time'. He said that he sought to assist the patient after she reported an abusive relationship with her husband.

35 The practitioner acknowledged his professional misconduct and expressed remorse for it from the time that he was first asked to respond to the allegations in April 2011. In his letter to the Tribunal dated 16 July 2013, he said that he remains 'deeply remorseful' for his conduct and is 'truly sorry' for his actions which he said reflect how 'unstable' he was at the time.

36 In his submissions at the final hearing, the practitioner emphasised that, in his letter of resignation dated 15 April 2011 and in a letter to the Executive Director of the service also dated 15 April 2011, he expressed concern for the patient's welfare. In his letter of resignation, he said that 'my only concern now is that [the patient] receives the appropriate care in dealing with this matter'. In his letter to the Executive Director, he said that 'the most important concern is for [the patient's] welfare' and that he hoped that his written apology in that letter 'assists in this process'.

37 However, as Ms AK Farnworth, who appeared with Mr DP Spencer on behalf of the Board, submitted, while the practitioner showed concern about the patient's welfare, at no stage has he gone on to demonstrate an awareness of how his conduct may have impacted upon her.

Appropriate penalty

38 The three principle objects of vocational disciplinary proceedings are:

(1) the protection of the public 'from delinquents and wrong­doers within professions' and 'seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements';

(2) the 'need to maintain the high standards and good reputation of the profession generally in the eyes of the community'; and

(3) the 'need to deter others who may be of a like mind to transgress in the future'.

(Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13.11.92) at 141 (Owen J)).

39 As the Tribunal said in Medical Board of Australia and Woollard [2012] WASAT 209 (S) (Woollard) at [35]:

A disciplinary tribunal necessarily exercises a broad discretion having regard to the particular circumstances of each case.

40 Furthermore, punishment of the practitioner for wrongdoing is not an object of disciplinary proceedings and, indeed, 'sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration': Craig v Medical Board of South Australia (2001) 79 SASR 545 at [43] (Doyle CJ).

41 Under s 196(2) of the National Law, having found that the practitioner behaved in a way that constitutes professional misconduct, the Tribunal may decide to do one or more of the following:

(a) caution or reprimand the practitioner;

(b) impose a condition on the practitioner's registration;

(c) require the practitioner to pay a fine of no more than $30,000 to the Board.

42 As the practitioner is not currently registered under the National Law, paragraph (d) of s 196(2), which confers a power to suspend a practitioner's registration for a specified period, and paragraph (e) of s 196(2), which confers a power to cancel a practitioner's registration, are not relevant. However, s 196(4) of the National Law states that, if a person does not hold registration under the National Law, the Tribunal may decide to disqualify the person from applying for registration as a registered health practitioner for a specified period.

43 In Woollard at [35], the Tribunal said the following with respect to the relevance of penalties imposed in other disciplinary proceedings:

In relation to the determination of an appropriate penalty in vocational disciplinary proceedings, great care needs to be taken when having regard to penalties imposed in other cases, although general principles can be observed and applied.

44 Having found a medical practitioner guilty of serious sexual misconduct in relation to two patients in Medical Board of Australia and Costley [2013] WASAT 2 (Costley), the Tribunal noted at [34] that its attention had been drawn to various decisions on penalty in relation to doctors who had formed personal or sexual relationships with patients. The Tribunal referred to these decisions at [34] ­ [44] of its reasons and then said the following at [45]:

It is desirable that there be consistency in penalties imposed for conduct of a particular character in professional disciplinary proceedings. As mentioned above, caution in making comparisons is called for because of the variety of factual circumstances involved in each case, and differences in the characterisation of the conduct and the legislation under which various decisions have been made. What can be extracted from the review of the cases to which we were referred is the proposition that most cases of sexual misconduct by medical practitioners will attract either suspension from practice or deregistration. So much was expressly acknowledged by counsel for Dr Costley.

45 The Board referred us to two recent decisions of the Nursing and Midwifery Tribunal of New South Wales in relation to sexual misconduct by nurses. Health Care Complaints Commission v Twomey [2013] NSWNMT 6 concerned an enrolled nurse who, having cared for a patient while he was an in­patient, shortly after the patient's release began a relationship with him which became a sexual one. The practitioner also moved into the patient's house. The relationship ended within two months. The Tribunal found that the practitioner demonstrated both insight and remorse for her actions. By the time of the hearing, the practitioner had completed compulsory training in professional ethics as required by her employer. The Tribunal took the practitioner's insight and remorse into account and decided to suspend her registration for a period of six months and impose a condition on her registration requiring her to undertake a course on ethical boundaries.

46 Health Care Complaints Commission v Brown [2013] NSWNMT 8 concerned a registered nurse who engaged in an improper relationship, including a sexual relationship, with a vulnerable 19­year­old Aboriginal inmate of a correctional centre where she was employed as a Nurse Unit Manager. The relationship commenced while the young man was her patient, and continued for a period after his release on parole. The Tribunal found at [97] that while the practitioner expressed remorse in respect of her conduct:

… her remorse was directed principally to the devastation the revelation of her conduct wrought on her, and her family with the temporary breakdown of her marriage, and the loss of her job rather than any deeply considered remorse for the effect her conduct had on Patient A, his health and well­being.

47 The Tribunal found 'a lack of any real insight by the nurse into the affect of her conduct on Patient A' ([97]). The Tribunal ordered that the practitioner's registration be cancelled and that she be disqualified from applying for registration for one year.

48 As noted by the Tribunal in Woollard at [35] and Costley at [45], although general principles can be observed and applied from other vocational disciplinary decisions and although it is in the public interest for there to be general consistency in penalties imposed for conduct of a particular character in such proceedings, particularly in the context of a national registration and disciplinary scheme, great care needs to be taken because of differences in factual circumstances. Ultimately, the appropriate disciplinary consequence of misconduct is to be determined having regard to what is necessary and appropriate to achieve the three principal objects of disciplinary proceedings referred to earlier in these reasons, in the particular circumstances of the case, including mitigating circumstances.

49 Even if it were entirely consensual, engaging in a sexual relationship with a person who is or was until recently a health practitioner's patient seriously undermines the necessary trust and confidence that a patient must feel in a practitioner. In order for a health practitioner to be able to provide appropriate health care and treatment for a patient, the patient must have complete trust and confidence that the practitioner's sole object in the relationship is the best interests of the patient. Moreover, a patient must have complete trust and confidence that everything that a practitioner does and says in the relationship with the patient is for the benefit of the patient, not for the benefit of the practitioner. Furthermore, because of the dependence and power inequality that is inherent in the health practitioner/patient relationship, a patient is vulnerable and any sexual relationship between a practitioner and a patient cannot be considered to be entirely consensual on the part of the patient. Consequently, any sexual relationship between a practitioner and a patient involves an abuse of their professional relationship.

50 Although health practitioners are human beings and undoubtedly subject to human desires and impulses, the essential trust and confidence placed in them by their patients and the dependence and power inequality that is inherent in their relationship means that they must:

• recognise if the maintenance of proper professional boundaries with a patient may be compromised;

• put in place strategies and mechanisms to avoid proper professional boundaries from being compromised; and

• suppress any desire or impulse towards a patient.

51 While health practitioners are human beings, in their relationships with patients they are, and must be, professionals whose sole and privileged focus is the appropriate health care and treatment of the patient.

52 The practitioner's sexual misconduct in this case was all the more serious because of the special vulnerability of the patient. The patient was especially vulnerable in two particular respects. First, she had a history of mental illness and was referred to the service for treatment in relation to that illness. She had earlier in the same year been hospitalised after a psychotic episode in which she made several attempts to commit suicide. She continued to suffer from auditory hallucinations and persecution beliefs. Second, the patient had reported an abusive relationship with her husband and had to move, with her daughter, to crisis accommodation. It was in the refuge that the sexual relationship between the practitioner and the patient began.

53 In Woollard the Tribunal said the following at [18]:

The question of whether a practitioner acknowledges and understands the nature of his or her error and has insight into the seriousness of the error is relevant to the question of penalty required for the protection of the public: Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [64]; Legal Profession Complaints Committee and Detata [2011] WASAT 91 (S) at [12]; Medical Board of Western Australia and Wolman [2011] WASAT 69 (S) at [24].

54 In our view, it is significant that although, shortly after he was advised of the allegations in April 2011, the practitioner recognised that his conduct was improper, expressed regret, and expressed concern for the patient's welfare, he has not demonstrated any real awareness or insight as to how his conduct and the significant breach of trust and confidence that it involved may have impacted or affected a highly vulnerable patient.

55 Indeed, certain comments made by the practitioner in his correspondence with AHPRA and in his oral submissions to the Tribunal indicates, as the Board submitted, an attempt to 'normalise' his significant professional misconduct. In his letter to AHPRA, the practitioner said:

… it has been an observation in the past, in nursing circles, that if a female clinician crosses the "relationship boundary", she is deemed to have become "over involved". However, if a male clinician crosses the "relationship boundary", then he is being "Predatory". Distinct double standards.

56 In his oral submissions at the final hearing, the practitioner said that 'nurses do have relationships with patients' and referred to experience in the Second World War in which nurses met soldiers whom they subsequently married.

57 However, a sexual relationship between a health practitioner and a person who is or was until recently their patient cannot be characterised as being 'over involved' and, as evidenced by the two decisions of the Nursing and Midwifery Tribunal of New South Wales referred to earlier, there are certainly no 'double standards' in relation to sexual misconduct by male and female nurses or other health practitioners. Furthermore, as Ms Farnworth submitted, whatever ethical standards may have existed close to 70 years ago, under the National Law, a sexual relationship, even if consensual, between a health practitioner and a person who is or was until recently their patient, constitutes serious professional misconduct and is entirely unacceptable.

58 The practitioner's professional misconduct in terms of his failure to provide adequate documentation of his consultations with the patient is all the more serious in this case because his conduct occurred in a community setting. The practitioner saw the patient in her home on at least two occasions and in the refuge on three or four occasions. There was no other health practitioner involved in those consultations. Therefore, the practitioner's failure to provide adequate documentation of these consultations meant that there is no record that they took place or of their content, thereby compromising the patient's care.

59 The practitioner did not present any qualified evidence that he suffered from Depression or PTSD at the time of the conduct the subject of this proceeding. Nevertheless, the Board did not question the practitioner's assertion that he suffered from mental health issues at the time and we, therefore, accept that that was the case. However, there is no evidence that either Depression or PTSD caused or contributed to the practitioner's professional misconduct in failing to maintain proper professional boundaries or failing to provide adequate documentation of his consultations with the patient. Indeed, in relation to the allegation of failure to provide adequate documentation of his consultations, the letter from the practitioner to the refuge dated 2 September 2010 indicates that the practitioner had the capacity to document the consultations.

60 In our view, having regard to all of the circumstances of the case, the protection of the public, the need to maintain high standards and the reputation of the profession of nursing, and the need to deter others from similarly transgressing, requires that the practitioner be reprimanded and that he be disqualified from applying for registration with the Board for a total period of two years; 18 months in consequence of his failure to maintain proper professional boundaries with the patient and six months in consequence of his failure to provide adequate documentation of his consultations with the patient.

Costs

61 The Tribunal's approach and practise in relation to costs in vocational disciplinary proceedings and in relation to the assessment of costs was summarised in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [51] and [53], respectively, in terms endorsed in Woollard at [40] ­ [56] and in Costley at [63] ­ [71]. There is no reason why, in the circumstances of this case, the Tribunal should depart from its usual practise in relation to costs in vocational disciplinary proceedings where the vocational disciplinary body is successful in obtaining a finding of misconduct. Indeed, the practitioner did not contend otherwise. The amount of costs sought by the Board, namely $1,754 for legal fees and $315 for disbursements (filing fee), reflects what is reasonable and necessary to have properly prepared and presented the case. In particular, the legal fees sought are modest for having prepared and filed the application, attended the directions hearing before the President, prepared and filed a statement of issues, facts and contentions and submissions in relation to penalty and a bundle of documents, and prepared for and attended the final hearing.

Conclusion

62 The practitioner is guilty of professional misconduct under the National Law in each of the two respects alleged by the Board. The appropriate disciplinary consequence of the practitioner's misconduct is that he be reprimanded and be disqualified from applying for registration as a registered health practitioner for a period of two years from the date of the Tribunal's decision. The practitioner should also be ordered to pay the Board's costs and disbursements of this proceeding assessed in the sum of $2,069 within 28 days of the Tribunal's decision.

Orders

63 The Tribunal makes the following orders:

1. During the period from August 2010 to November 2010, Mr Mark Jackson (practitioner) behaved in a way that constitutes professional misconduct under the Health Practitioner Regulation National Law(Western Australia) (National Law) in that he:
(1) Failed to maintain proper professional boundaries with a patient in that he:
(a) arranged transport for the patient and her daughter to relocate to crisis accommodation;

(b) provided financial assistance to the patient, including paying the patient's rental bond, paying four weeks rent for the patient and purchasing furniture and other household items for the patient;

(c) entered into a residential lease with the patient; and

(d) engaged in a sexual relationship with the patient.

(2) Failed to provide adequate documentation of his consultations with the patient.
2. Pursuant to s 196(2)(a) of the National Law the practitioner is reprimanded.

3. Pursuant to s 196(4) of the National Law the practitioner is disqualified from applying for registration as a registered health practitioner until 3 September 2015.

4. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the practitioner must pay to the Nursing and Midwifery Board of Australia its costs and disbursements of this proceeding assessed in the sum $2,069 by 1 October 2013.

I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE D R PARRY, DEPUTY PRESIDENT