P v The Nursing Council of New Zealand HC Wellington Ap124/01

[2001] NZHC 794

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP124/01

THERE IS TO BE NO PUBLICATION OF THE NAMES OR ANY IDENTIFYING DETAILS OF THE APPELLANT AND THE PATIENT

BETWEEN P
Appellant

AND THE NURSING COUNCIL OF NEW ZEALAND
Respondent

Hearing: 21 August 2001

Counsel: J G Drayton and D R Knight for the Appellant
K P McDonald QC and C Prendergast for the Respondent

Judgment: 27 August 2001

JUDGMENT OF WILD J

Solicitors:
Phillips Fox, Wellington for the Appellant
Solicitor, Nursing Council of New Zealand, Wellington for the Respondent

Introduction

[1] The appellant is a newly qualified nurse. She formed an intimate relationship with a patient under her care in a hospital. The relationship developed into a sexual one. Shortly after that development, the patient told other hospital staff. The appellant admitted the relationship. She was dismissed. The respondent Council, the disciplinary body of the appellant’s profession, charged her with professional misconduct. She admitted that charge. The Council ordered that her name be removed from the register of nurses, but directed that she may apply for reinstatement of her name after a period of 12 months.

[2] The issue on this appeal is whether that penalty was manifestly excessive. On a number of grounds, the appellant argues that it was. The Council says that the penalty was entirely appropriate for what was a very serious breach of professional standards, even allowing for the appellant’s relative inexperience.

[3] I will need to background the appeal, refer to the relevant law and then consider the appellant’s arguments, some of which overlap.

[4] The appeal is pursuant to ss 49 and 50 Nurses Act 1977. Section 50 empowers this Court to substitute a different penalty for that imposed by the Council, or to make such other order as it thinks just. The decision of this Court is final.

The factual background

[5] The Council heard the charge on the basis of an agreed summary of facts. I will condense those, giving prominence to the facts which assumed importance no this appeal.

[6] The appellant first became registered as a comprehensive nurse in December 1998. Her first placement was from February 1999 at W Hospital, which provides a clinical rehabilitation service for mentally unwell patients. She was in the new graduate programme at the Hospital, giving her access to guidance from the course coordinator and a mentor.

[7] Mr B was a special patient pursuant to the provisions of s 115(1)(a) Mental Health Act 1992. That “special” status was pursuant to the Criminal Justice Act 1985, and resulted from serious criminal offending including aggravated robbery. The Court had found Mr B was under a disability, unable to stand trial because he was mentally disordered. It ordered that he be detained in a mental institution. Mr B had a significant psychiatric history, and was acutely unwell when admitted to W Hospital. He had received head injuries in a motor car accident, had been a substance abuser, and had become psychotic. For approximately his first eight months in W Hospital Mr B was an in-patient in the forensic unit. He was briefly transferred to the National Secure Unit at A Hospital because of his severe psychosis. In January 1998 he was transferred to Ward 10D for rehabilitation.

[8] When she began at W Hospital, the appellant was placed on Ward 10D. She became Mr B’s associate nurse. That involved her caring for him on a one-to-one basis, including being involved in discussions relating to his transition back into the community. The appellant had a close nurse/patient relationship with Mr B in a therapeutic sense.

[9] The appellant’s intimate relationship with Mr B began in May 1999. At some point it developed into a sexual relationship. On 20 August Mr B told staff at W Hospital about the relationship. When asked, the appellant acknowledged the relationship, and that it had become a sexual one. On 21 August she told her team leader that she did not intend ending the relationship. She said that the sexual aspect had occurred while Mr B was on leave.

[10] On 26 August the appellant was dismissed from her employment at the Hospital for serious misconduct.

[11] I was informed by counsel that the appellant’s relationship with Mr B continues.

The charge and the Council’s decision

[12] The charge against the appellant is dated 14 February 2001 and charges:

“1.0 That during the period 1 April 1999 to September 2000, during your employment as a registered comprehensive nurse in the Mental Health Service, Healthcare, and/or after that employment ceased, you entered into an intimate and/or sexual relationship with B, a client of that Service.

The conduct alleged in paragraph 1.0 amounts to professional misconduct. If proven you are liable to the penalty or penalties which may be imposed pursuant to sections 23, 42 and 48A of the Nurses Act 1977.”

[13] The Council heard that charge on 29 March and delivered its decision in writing on 27 April 2001.

[14] The Council’s decision records:

“6. . . . In consenting to the agreed summary of facts Ms P admitted the facts and formally admitted that the conduct amounted to professional misconduct.”

[15] Having found the charge made out (it was, in fact, admitted) the Council said that Ms P’s actions had brought discredit on the nursing profession. It stated:

“21. Mr B was in a vulnerable position and it is a basic tenet of Mental Health nursing that the nurse knows, understands and respects personal boundaries.”

[16] The Council then said that, having carefully considered the submissions of counsel for Ms P (who was not either of her counsel in this appeal), it had determined to exercise its disciplinary powers under s 42 Nurses Act 1977 and to impose a penalty and make other orders. It then made the order I have already referred to: de-registration for a period of 12 months, after which Ms P could apply for reinstatement. The Council then added these comments:

“24. It is the Council’s view that Ms P began and continued a relationship with a vulnerable patient. Council cannot condone this breakdown of personal boundaries. Maintaining professional boundaries is particularly important in mental health nursing where patients are psychologically vulnerable.

25. The fact that the relationship was claimed to be consensual ignores the power issues inherent within the therapeutic relationship.

26. Council has fixed the period of one year before Ms P can apply for re-registration. The permission to re-apply after one year is due to her status as a new graduate and her relative inexperience.”

[17] Finally, the Council ordered Ms P to pay $3,845, being 50% of the costs of the inquiry and proceeding.

The law

[18] Section 42 Nurses Act permits the Council, having found professional misconduct, to impose penalties of:

[a] De-registration.

[b] Suspension from practice for up to 12 months.

[c] Practice for a period of up to 3 years subject to such conditions as to employment, supervision or otherwise as the Council specifies.

[d] Censure.

[e] A fine of up to $10,000.

[19] The Council may not both de-register and fine a nurse.

[20] For the appellant Ms Drayton accepted what she termed “the Court’s reluctance to interfere with a specialist tribunal’s decision on matters such as penalty”: Yates v Nursing Council of New Zealand 21.12.93 Greig J HC Wellington AP56/88. She accepted she must satisfy this Court that the penalty imposed by the Council was “clearly wrong and unjustifiable”. She referred to Townsend v Nursing Council of New Zealand 13.11.98 HC Wellington AP356/95, where Heron J overturned the Council’s requirement that the penalty (censure) be published.

Decision

[21] Ms Drayton advanced five arguments in support of the appeal, the last drawing the previous arguments together in a submission that the penalty imposed by the Council was manifestly excessive. I will deal with each argument in turn.

Council failed to give any discount for guilty plea and admission of the summary of facts

[22] This first point is that the Council’s decision does not mention any discount being given for the appellant’s guilty plea and admission of the summary of facts, but contends she should have been given one.

[23] I accept that the Council’s decision does not expressly allow the appellant a discount in penalty for her admitting the charge, and the facts relating to it. But I am not able to accept that this is not reflected in the Council’s decision. I have set out in paragraph [14] the passage in the Council’s decision where it acknowledged that the appellant had admitted the facts and that they amounted to professional misconduct. It is inconceivable that the Council would not then have factored this in in arriving at the appropriate penalty. Thus, I do not accept the basic premise of this first point of appeal. Before leaving it, three points raised by Ms McDonald in her argument need be mentioned.

[24] First, while not wishing to extinguish the importance of the appellant’s guilty plea, I accept Ms McDonald’s submission that the charge could have been proved by calling the other staff at W Hospital who had been told by Mr B of his relationship with the appellant, and/or the staff to whom the appellant herself admitted the relationship. Section 43(5) Nursing Act dispenses with the need to call Mr B himself - a course to be avoided in view of his mental ill health. That removes much of the force of Ms Drayton’s submission that one of the main reasons the appellant pleaded guilty was to avoid the necessity to call Mr B.

[25] The second point follows from the first. The Court of Appeal has many times emphasised the importance of a sentencing Judge allowing a proper discount for a guilty plea(s), and the desirability of that discount being discretely quantified, so that an offender can see that it is being given. I was referred to R v Amoroa 15.3.91 CA284/90. There are many more recent statements by the Court of Appeal, I think the most recent is in R v Woolley 23.7.01 CA02/01. The Court has several times emphasised the particular importance of a discount for a guilty plea in cases of sexual offending, since it not only spares the victim the ordeal of having to give evidence at trial, but can also indicate remorse and contrition, which can have the enormous value of enabling the healing process to begin. See R v Jacobs 2.8.94 CA169/94; R v D 20.2.97 CA430/96 and R v Kain 17.3.98 CA474/97. However, the Court of Appeal has always emphasised that the appropriate allowance for a guilty plea will depend on the particular circumstances, one of which is the strength of the prosecution case. Ms McDonald submitted, I think with considerable force, that a plea of guilty was “inevitable in this case”.

[26] Thirdly, Ms McDonald pointed to the differences between the role of a professional disciplinary body such as the Nursing Council, and that of a criminal Court. Criminal sentencing aims, in a case dependent way, to punish, deter and rehabilitate the offender, as well as to deter other, would be, offenders. Via those immediate aims sentencing also has the goal of protecting the public from the offender and would be offenders. The primary consideration for a professional disciplinary body is the upholding of proper professional standards in the public interest. I view as correct, at least in general terms, Ms McDonald’s submission that a guilty plea in the professional disciplinary context tends to have less significance than in the criminal one.

[27] Fourth, and perhaps of least importance, is the costs position. Professional disciplinary bodies generally require a practitioner found guilty of professional misconduct to contribute significantly to the costs of the investigation/inquiry and prosecution. Where the charge is not admitted, those costs can be very significant. For example, in Re C, a decision of the Nursing Council on 23 April 1996, C was ordered to contribute $15,000 toward total costs of $67,000. The appellant gets the benefit of her guilty plea in terms of costs: she was ordered to pay $3,845, being 50% of the costs of the inquiry and prosecution.

[28] This first ground of appeal fails.

Failure to take account of the lack of published policy or statement on sexual conduct with patients

[29] Ms Drayton argued that the Council’s decision failed to recognise the lack of guidance to the appellant, as a newly graduated nurse, on sexual conduct with patients. There were several aspects to this argument. First, Ms Drayton referred to the Council’s Code of Conduct for Nurses. She contended this Code failed to deal explicitly with sexual conduct with patients. She said it contained only two oblique references, in a section giving examples of behaviour in the practice context which might lead to complaint about a nurse’s conduct:

“• Physical, verbal or sexual abuse

. . .

• Offer of/acceptance of bribes (or other favours, sexual advances).”

[30] Ms Drayton then contrasted this with the Statement on Sexual Abuse in the Doctor/Patient Relationship issued by the Medical Council of New Zealand:

“Sexual behaviour in a professional context is abusive . . . The Council will not tolerate sexual activity with a current patient by a doctor.”

[31] Next, Ms Drayton drew support from a decision of the Supreme Court of New South Wales on 3 October 1997 in Jacobsen v Nurses Tribunal, 30101/96. The case involved a mental health nurse who had a sexual relationship with a mentally ill patient, was found guilty of unsatisfactory professional conduct, and had his name removed from the Register for 12 months. Allowing the appeal, and reducing the de-registration period to 6 months, Dunford J said:

“The breach of standards was serious and it was necessary to bring that to the attention not only of the plaintiff but also of his colleagues in the Newcastle area who may not have appreciated it, and to mental health nurses generally. In these circumstances I am not satisfied that the Tribunal erred in ordering that his name be removed from the Register. An order removing a professional’s name from the relevant Register is made for the protection of the public, and is not intended to be punitive, although it has the gravest consequences: . . .

However, notwithstanding what I have already said, the lack of clear and specific guidelines and a relevant code of professional conduct and poor advice and leadership at the time are relevant matters in mitigation, and having regard to those matters, his otherwise good record as a mental health nurse, the financial hardship he will suffer by the removal of his name from the Register, and the inconsistencies which appear from some of the other decisions cited to me, I consider that the Tribunal failed to give any or sufficient weight to these matters, that its discretion accordingly miscarried and that the period after which he can reapply for accreditation should be reduced to six months. It will be for him then to show that he then has a proper understanding of his professional responsibilities and the reasons on which they are based.”

[32] I accept that the Council’s decision is silent about published policy or statements on sexual conduct with patients, or the lack of them. The whole decision is predicated on the basis that a sexual relationship between a nurse and a patient she is caring for is fundamentally unprofessional and inappropriate. The Council’s decision categorises adherence to personal boundaries as “a basic tenet of mental health nursing”. For five reasons, I find this ground of appeal unappealing:

[a] The Council, comprised almost wholly of people with extensive nursing experience and involvement in the training and education of nurses, would know what were and were not basic tenets of nursing, and what nurses were taught about them.

[b] The appellant’s Bachelor of Nursing exam results were in evidence, and disclose that she achieved a B pass in “Management & Professional Issues in Nursing” in her third year of study. Although I have nothing beyond its title to indicate the content of this course, I would be both surprised and alarmed if it did not encompass guidance as to what was appropriate, and what inappropriate, in terms of a nurse’s relationship with a patient.

[c] Although the Council’s Code of Conduct for Nurses is a guide rather than a comprehensive code, Ms Drayton ‘s selections from it overlook Principles Two, Three and Four, and relevant criteria under them:

“Principle Two

The nurse . . . acts ethically and maintains standards of practice.

Criteria

The nurse:

2.1 Is guided by a recognised professional code of ethics applied to nursing.

. . .

2.5 upholds established standards of professional nursing practice;

2.6 is responsible for maintaining her/his professional standards;

. . .

Principle Three

The nurse respects the rights of patients/clients.

. . .

Principle Four

The nurse justifies public trust and confidence.

Criteria

The nurse:

. . .

4.7 respects the trust implicit in the professional nursing relationship;

. . .

4.9 Acts in ways which contribute to the good standing of the nursing profession.”

[d] In Collie v Nursing Council of New Zealand [2001] NZAR 74, Gendall J was faced with an application by the appellant nurse to admit further evidence. That evidence included the British nursing code and guidelines and was designed to establish that the appellant nurse did not know it was unprofessional to accept money gifts from former patients. Rejecting the application, His Honour emphasised that the starting point for assessing what is or is not professional misconduct is the definition of “professional misconduct” in s 2 Nurses Act, and not guidelines or codes of conduct, particularly from abroad. I can do no better than quote what Gendall J said in dismissing an application which rather mirrors the submissions Ms Drayton made in this case:

“[30] Counsel further submitted that a finding that the conduct amounts to professional misconduct is unsupported by case law or by the Nursing Council’s Code of Conduct. Codes of Conduct offer guidance. Breach of a standard in a code may or may not be professional misconduct, or other conduct deserving of disciplinary sanction. It all depends and is a question of degree. So too misconduct can be conduct outside that specifically referred to in the code because the ambit of human behaviour, whether by a professional person or otherwise, is unlimited. The Nursing Council’s Code provides, in part, that the nurse must justify public trust and confidence and use professional knowledge to promote patient well being, respect the trust implicit in the nursing relationship, claim benefits only as and when appropriate for services and:

Act in ways which contribute to the good standing of the nursing and midwifery professions. (Principle 4.)”

[e] Jacobsen v Nurses Tribunal has a marked factual distinction from this case. Nurse Jacobsen had invited a female patient who had been under his care to move into his home as a paying boarder. His team and case managers were aware of this and expressed reservations about it, but took no steps to prevent it happening. The position was corrected only when more senior officials in the area health service became aware of it. In contrast, other staff at W Hospital were unaware that an intimate relationship was developing between the appellant and Mr B, until Mr B told them about it. The appellant, if she was in any doubt as to the propriety of the relationship, did not seek any advice or guidance about it, although both were available to her from her course coordinator and mentor through the new graduate programme. Although he refers also to the lack of clear and specific guidelines and a relevant code of professional conduct, Dunford J was undoubtedly much influenced by the poor advice and leadership Nurse Jacobsen received. The appellant here was not similarly misled by her superiors.

[33] This second ground of appeal fails.

Erroneous assumption that the “importance of personal boundaries” was known and understood by Ms P

[34] Ms Drayton’s submission under this head was straightforward. She submitted, and I accept, that the Council’s decision proceeded on the basis that the inappropriateness of an intimate/sexual relationship between nurse and patient was a basic tenet of mental health nursing that must have been known to the appellant. She then argued that there was no evidence before the Council that that was so, and pointed to “evidence” to the contrary.

[35] This “evidence” was in the submission of the appellant’s counsel as to penalty. She is recorded in the transcript of the hearing as saying:

“I have a number of submissions relating to (Ms P) herself. At the time that she received the letters from (Mr B) and later when the relationship became intimate, and then sexual, (Ms P) was not aware that a relationship with a patient was inappropriate. She had been told by J of the nurse who got pregnant by a patient and who was carrying on working in a different ward. (Ms P) says that the nurses who discussed this never indicated it was inappropriate, even though they agreed that the only place that intercourse could have taken place was on the unit.

When (Ms P) was dismissed from her employment, she became aware that it was not considered appropriate to have a relationship with a patient. However, it was not until the Nursing Council investigation began that (Ms P) first found out why that was. This occurred when (Ms P) was sent a number of articles by myself on boundary issues, including the New South Wales Guidelines. On reading the articles she understood that she had crossed professional boundaries with (Mr B).

She was a new graduate of S Polytechnic. At no time during her training did she receive any guidance on boundary issues, boundary violations or the inappropriateness of having a sexual relationship with a patient. What she was taught at S Polytechnic in terms of ethics was to do with euthanasia and informed consent.

At the time that (Ms P) did her training the Nursing Council did not have any policies on having a relationship with a patient. This is still the case in my submission . . . .”

[36] This is not the stuff of submission. It is evidence on important and contentious issues. If the appellant wanted the Council to accept it, then she needed to give those matters in evidence, and face questioning upon them. Ms McDonald informed me that she objected strenuously to the appellant’s counsel giving “evidence” in this manner, and I am surprised that the Council’s legal assessor did not advise the Council that material of this sort was not appropriate for submission. I have no intention of relying upon it.

[37] What was in evidence was an article by Ms Isabelle Sherrard which appeared in the May 1996 issue of “Kai Tiaki: Nursing New Zealand”. When she wrote the article, Ms Sherrard was concluding a 6 year term as convenor of the Council’s Preliminary Proceedings Committee. She was the acting Dean at the Faculty of Health of the Auckland Unitec. Ms Sherrard wrote:

“I believe preparation for professional work where sexual abuse is a possibility is not well done during education. I think educators still believe that the majority of nurses and midwives will not get into difficulty in the intimacy of client care. This may well be true for the majority, but there are a few who do venture beyond the boundary of professional touch and become interested in their own personal gratification.”

[38] I make three points about this article. First, it was written almost 5 years before the Council’s decision now under appeal. I have no evidence as to whether the concerns expressed by Ms Sherrard have been addressed in the interim. The appellant commenced her Bachelor of Nursing in January 1996 and completed it in November 1998 - virtually all subsequent to Ms Sherrard’s article. Secondly, I reiterate the point I made in paragraph [32][a] above that the Council comprised almost wholly people with extensive nursing experience and involvement in the training and education of nurses. Their view of what the appellant would have been taught about the “importance of personal boundaries” is the most reliable one I have, and certainly the most up-to-date one. Thirdly, and similarly, whilst Ms Sherrard’s experience and position give her view credence, at least at the time she expressed it, it is only the view of one person. The Council comprised five people with the expertise to which I have referred.

[39] In the result, the Council was left with the summary of facts admitted by the appellant and her formal admission that her conduct amounted to professional misconduct. It was entitled to proceed on that basis, and I consider that it did.

[40] R v Bryant [1980] 1 NZLR 264 (CA), cited by Ms Drayton, has no application to this appeal. It is the well known case in which the Court of Appeal held that an offender pleads guilty only to the charge, and not to the prosecution’s summary of facts. But, if the offender wishes to contest the accuracy of the prosecution’s summary of facts, then the proper course is for the offender to give evidence upon sentence, so that the sentencing Judge can make necessary findings as to the circumstances of the offence, and pass sentence on the basis of them. Here, both the charge and the summary of facts were admitted.

[41] I reject this third around of appeal.

Failure to take account of the fact that there was no allegation of active progression of the relationship (intimate or otherwise) in the workplace

[42] Ms Drayton argued that there was no evidence that the relationship between the appellant and Mr B had started or developed in W Hospital. She contended the agreed summary of facts indicated that the relationship had started and developed outside the Hospital while Mr B was on leave. She said this was a significant mitigating factor which the Council had failed to take into account when assessing the appropriate penalty.

[43] I regard this submission as factually wrong. The Council’s decision records that the intimate relationship between the appellant and Mr B commenced in May 1999 and had developed into a sexual relationship by 20 August 1999, when Mr B told other staff at W Hospital about it. The decision records that the appellant “said that the sexual relationship occurred when Mr B was on leave” (my emphasis). Throughout the period May to August 1999 Mr B was a special in-patient in Ward 10D at W Hospital, and the appellant was a nurse on that ward. I accept that during some of that time he was on leave, and was away from the Hospital. But, strictly, he remained a special in-patient (he was discharged as an out-patient from 29 September 1999). I also accept that the sexual relationship between the appellant and Mr B may have occurred away from the Hospital. That leaves the intimate relationship starting and developing over a period of some months while the appellant was nursing Mr B in W Hospital.

[44] Even if all aspects of the relationship between the appellant and Mr B had occurred away from the Hospital, it would not much avail the appellant. That clearly emerges from Collie v Nursing Council and Jacobsen v Nurses Tribunal. In the former the professional misconduct consisted of the appellant nurse accepting money gifts from a patient after the professional nurse/patient relationship had ended. Gendall J was emphatic that the nurse’s professional obligations to the former patient had not ended. In Jacobsen v Nurses Tribunal, an important aspect of the appellant’s professional misconduct was his developing a personal relationship, culminating in a sexual one, with the patient after she had ceased to be a client of the medical institution where he worked.

[45] In short, a nurse’s professional and ethical duties to a patient do not end at the door of the hospital or surgery, and nor do they terminate with the nurse/patient relationship.

[46] This ground of appeal also fails.

Penalty imposed by the Council was manifestly excessive

[47] Ms Drayton submitted that the penalty imposed by the Council was manifestly excessive, when measured against the appellant’s personal circumstances:

[a] She was a new nursing graduate. She was inexperienced: her position at W Hospital was her first. She had achieved good grades during her nursing training and had good character references, including one from a hospital manager indicating a willingness to employ her if she was reinstated as a nurse, notwithstanding knowledge of the charge.

[b] De-registration cost the appellant her livelihood. She is currently receiving a benefit, supporting herself and her two young children on $200 per week. She has a substantial student loan incurred in training as a nurse.

[c] The relationship between the appellant and Mr B was, and is, a genuine loving one. It was instigated by Mr B and continues. It was not a casual liaison for sexual gratification.

[48] Whilst conceding that the appellant’s misconduct justified disciplinary action by the Council, Ms Drayton submitted that it fell toward the lower end of the spectrum of misconduct. She argued that it warranted only censure or suspension from practice for a 6 month period. At the very most, Ms Drayton said it warranted de-registration for only 6 months. Ms Drayton supported that submission largely with reliance on the Council’s decision on 23 April 1996 in Re C. I will come back to Re C, but deal first with the appellant’s personal circumstances.

[49] The Council did not overlook that the appellant was a new nursing graduate, and inexperienced. It said:

“26. Council has fixed the period of one year before Ms P can apply for re-registration. The permission to re-apply after one year is due to her status as a new graduate and her relative inexperience.” (my emphasis)

[50] The Council would be keenly aware of the impact de-registration would have on the appellant, indeed on any nurse whose name was removed from the register.

[51] Ms Drayton’s last point - that the relationship was a genuinely loving and on-going one - is as unhelpful to the appellant’s cause as it is helpful. That the relationship was not a casual one for sexual gratification is a point worth making. But the fact that the appellant persisted - and still persists - with a relationship with a former patient arguably does not assist her. I say arguably, because there is legitimate debate as to whether it is permissible for a nurse (or doctor) who has terminated a professional relationship with a patient, thereafter to develop or resume an intimate relationship. It is a difficult and delicate area into which I need not enter. The difficulty is referred to in the Council’s decision, but I suspect may still not be fully appreciated by the appellant. It is that a patient - and this is particularly true of Mr B - is in a psychologically vulnerable and dependent position, such that it is difficult to know whether any relationship is a wholesome and bipartisan one.

[52] On the question of appropriate penalty, and in particular whether that imposed on the appellant was manifestly excessive, Ms McDonald referred me to a range of cases: Buttsworth v Walton 19.12.91 Samuels, Priestley & Meagher JJA, NSW Supreme Court, 40520/91; Childs v Walton 13.11.90 NSW Supreme Court, CA 40252/90; Morris v Psychologists Registration Board 19.12.97 Supreme Court of Victoria 6208/97; Re A Medical Practitioner [1993 No. 2] [1995] 2 Qd R 154; Cooray v The Preliminary Proceedings Committee 14.9.95 Doogue J HC Wellington AP23/94; Brake v Preliminary Proceedings Committee of the Medical Council of New Zealand [1997] 1 NZLR 71; Collie v Nursing Council of New Zealand and Jacobsen v Nurses Tribunal. From these cases emerge the following points:

[a] The New Zealand High Court and its counterparts in the Australian States have endorsed the view of Australasian nursing disciplinary bodies that it is serious misconduct for a nurse to have an intimate/sexual relationship with a patient or former patient.

[b] De-registration is almost invariably the penalty imposed by the disciplinary bodies and upheld by the Courts.

[c] That penalty is imposed primarily to protect the public, and in particular patients, by driving home to all nurses that intimate/sexual relationships with patients or former patients are unprofessional and unacceptable, will be viewed seriously, and dealt with accordingly. The public need to receive that message also, so that they may deal with nurses with the confidence that they will receive objective, professional nursing care.

[d] Punishment of the nurse is secondary, and is necessary to achieve the primary aim: protecting the public and ensuring public confidence in nurses.

[53] I said I would revert to Re C. That case involved a nurse practising privately as a sexual abuse counsellor. She admitted that she had a sexual relationship with a patient she was counselling for sexual abuse. The nurse claimed the counselling relationship had ended before the sexual relationship began, but the Council found otherwise. The nurse was a psychiatric nurse of many years experience. A mitigating circumstance was that the nurse had attempted to address her boundary transgression in a professional manner, by handing over the patient to a new counsellor. The nurse did not admit the charge, but it was found proved. The Council censured the nurse and ordered her to pay $15,000 toward the $67,000 cost of the inquiry and proceeding.

[54] Ms Drayton submitted, and Ms McDonald conceded, that the penalty imposed by the Council in Re C cannot be reconciled with that imposed on the appellant here. It cannot.

[55] It also cannot be reconciled with the penalty imposed by the Council on 7 November 2000 in Re P. There a nurse admitted to having a sexual relationship with a female patient while the patient was in hospital under her care, that relationship continuing after the patient was discharged. The patient was known to the nurse to have “problems with boundary issues and relationships and previous inappropriate sexual relationships”. The Council ordered that the nurse’s name be removed from the register, and declined to fix a time after which she may apply to have her name reinstated to the role.

[56] Viewed against Re P and the range of cases I have referred to in paragraph [52] above, I can only view Re C as an aberration, which should not influence me in deciding whether the penalty imposed in this case was manifestly excessive. That was the way Ms McDonald invited me to view it.

[57] Having considered the nature of the misconduct admitted by the appellant, and the appellant’s own circumstances, and having considered also the cases counsel have referred me to, I am unable to view the penalty imposed by the Council as manifestly excessive. I regard it as stern, but appropriately so.

[58] This last ground of appeal also fails.

Result

[59] None of the five grounds of appeal has succeeded. The appeal is accordingly dismissed.

[60] The respondent is entitled to its costs against the appellant on a Category 2 time band B basis, without allowance for second counsel (which Ms McDonald specifically did not seek).