Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Crouch [2023] NSWCATOD 22 Hearing dates: 14 December 2022 Date of orders: 14 March 2023 Decision date: 14 March 2023 Jurisdiction: Occupational Division Before: O Shub, Senior Member T Anderson, Senior Member S Schulz-Robinson, Senior Member J Kearney, General Member Decision: (1) The Respondent's registration is cancelled pursuant to National Law, s 149C(1)(b). (2) An application for review under Division 8 of the National Law may not be made for a period of two years. (3) The Respondent is prohibited from providing any health services for the same period as the non-review period imposed pursuant to National Law, s 149C(5). (4) The Respondent is to pay the costs of the Applicant as assessed or agreed. Catchwords: OCCUPATIONS – nurses – misconduct and discipline – professional misconduct – failure to respect patient boundaries – failure to give evidence to counsel which is true and correct – forming relationship both friendship and intimate with patient – involvement in financial affairs of patient – involvement in financial matters with patient and previous patient Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3A, 149C(1)(b), 149C(5), Pt 8 Div 8 Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Leigh Rochelle Crouch (Respondent) Representation: Counsel: A Bhasin (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2022/00215275 Publication restriction: The names of Patient A and Patient B are suppressed pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). REASONS FOR DECISION COMPLAINT 1. The reasons for the complaint brought by the Applicant appear from the Complaint lodged with the Tribunal under Case No. 2022/00215275 dated 22 July 2022. The details of the Complaint are as follows: "The Health Care Complaints Commission … HEREBY COMPLAINS THAT Mrs Leigh Rochelle Crouch ("the practitioner") … being a nurse registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner completed a Bachelor of Nursing … in 2008. She was first registered as a nurse in January 2002. The practitioner commenced employment as a Mental Health Drug and Alcohol Clinician with … ("the service") on 3 September 2018. The service provides outreach services to children, adults, and older persons with severe and persistent mental health and drug and alcohol issues. Patient A has complex post-traumatic stress disorder, classical post-traumatic stress disorder, cirrhosis of the liver and chronic neck pain. Patient A was an active client of the service from 10 October 2018. The practitioner was allocated as Patient A's Case Manager on 13 March 2019 until 16 September 2019. Patient A ceased being a client of the service on 24 October 2019. The practitioner resigned from the service on 27 April 2020. The practitioner and Patient A were married in January 2021. COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. PARTICULARS OF COMPLAINT ONE 1. Between 13 March 2019 and 16 September 2019, while working as Patient A's Case Manager, the practitioner failed to provide adequate care and treatment to Patient A in that she failed to record in Patient A's clinical records: a. adequate assessment notes with clear treatment goals and reasons for her involvement in Patient A's care. b. detailed and frequent entries of the treatment provide[d] to Patient A. c. structured and evidence-based treatment. d. a complete record of the practitioner's home visits. e. any reasoning regarding changes in case management. f. detailed information regarding Patient A's transfer of Case Manager. g. any evidence of clinical case discussion informing Patient A's discharge from the service. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. PARTICULARS OF COMPLAINT TWO 1. Between March 2019 – 16 September 2019, while working as Patient A's Case Manager at the service, the practitioner breached professional boundaries with Patient A when she: a. exchanged phone calls with Patient A using her personal mobile phone. b. exchanged phone calls with Patient A outside of office hours. c. failed to record the fact of and content of the calls with Patient A in Patient A's client records. d. attended Patient A's home address for the purposes of hand-delivering prescriptions and an appointment card and did not document this attendance in Patient A's client records. 2. Around 11 October 2019, after ceasing to act as Patient A's Case Manager but whilst Patient A was still a client of the service, the practitioner breached professional boundaries with Patient A when she: a. entered into a private lease agreement with Patient A at a property …, where the lease agreement listed the practitioner and Patient A as the tenants of the property. b. declared she was in a de facto relationship with Patient A on a private lease agreement but failed to declare this relationship to her employer. 3. On 24 October 2019, after ceasing to act as Patient A's Case Manager but while Patient A was still a client of the service, the practitioner attended a social meeting with Patient A …, which breached professional boundaries. 4. On 4 and 6 November 2019, after Patient A ceased being a client of the service, the practitioner inappropriately sent an email to Patient A's superannuation fund from her work email address to arrange for the withdrawal of $12,000 purporting to be or act on behalf of Patient A, in breach of professional boundaries. 5. Around 18 January 2020, after Patient A ceased being a client of the service, the practitioner attended the property …, which was leased to the practitioner and Patient A, with the practitioner's daughter, to spend time with Patient A in breach of professional boundaries. 6. On 10 February 2020, after Patient A ceased being a client of the service, the practitioner contacted Patient A for assistance when she was involved in a minor car accident, in breach of professional boundaries. 7. On 14 February 2020, after Patient A ceased being a client of the service, the practitioner invited Patient A and Patient B to her residential property …, to socialise, in breach of professional boundaries. 8. Around 15 February 2020, after Patient A ceased being a client of the service, the practitioner attended the property …, which was leased to the practitioner and Patient A, in breach of professional boundaries. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of nursing PARTICULARS OF COMPLAINT THREE 1. In or around October 2019, the practitioner entered into an inappropriate close personal relationship with Patient A. 2. Between May 2020 – December 2020, the practitioner entered into an inappropriate sexual relationship with Patient A, and married Patient A in January 2021. COMPLAINT FOUR The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. PARTICULARS OF COMPLAINT FOUR 1. On 24 August 2020, in the practitioner's response to the Commission to a notice under s 34(1)(a) of the Health Care Complaints Act 1993, the practitioner provided false information to the Commission when she stated the following: "I have not now or ever been in an intimate personal relationship with [Patient A]. But I do consider him a good friend", when the practitioner knew this to be untrue and was in fact in an inappropriate close personal relationship with Patient A at the time. COMPLAINT FIVE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT FIVE 1. Complaints One, Two, Three and Four and the particulars thereof are repeated and relied upon both individually and cumulatively. NATURE OF THE JURISDICTION 1. The nature of the jurisdiction of the Tribunal is to protect the public and to maintain proper standards in the profession of nursing. The effect of any decision is not to punish the Respondent. 2. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-202, [1960] HCA 40 the High Court said: "Although it is sometimes referred to as "the penalty of disbarment", it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege." 1. Section 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law") provides that in the exercise of functions under a NSW provision "the protection of the health and safety of the public must be the paramount consideration". The interests of the public includes patients or potential patients of the practitioner concerned. 2. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order consequent upon a finding that a complaint has been proved is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards … of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3A of the National Law. THE ISSUES 1. In essence, therefore, the issues which arise are clearly set out in the particulars of Complaint One. The Respondent, while working as Patient A's case manager, failed to provide adequate care and treatment to Patient A in failing to record significant issues relating to the patient in Patient A's clinical records, exchanged phone calls with Patient A using her personal mobile phone and conducted calls with Patient A outside of office hours, and failed to record the fact and content of those calls. In addition, the Respondent is alleged to have visited Patient A's home address on multiple occasions. In addition, the Respondent entered into a private lease agreement with Patient A at a property where the lease agreement listed the Respondent and Patient A as tenants of the property with a disclosure that she was in a de facto relationship with Patient A. Various other alleged behaviour against the Respondent appears in detail from the Complaint. RESPONDENT'S REPLY TO THE COMPLAINT 1. The Tribunal had before it a letter dated 24 February 2020 addressed to 'Whom It May Concern' and a response to the points of the Complaint addressed to 'Whom It May Concern' for the section 150 inquiry, both of which set out the following response. Letter from RN Leigh Crouch to HCCC dated 24 February 2020 (Tab 31) "Response to allegation 1 which outlines that I am allegedly in a relationship with a client and have moved in with the client. I am not nor have I ever been in a relationship with a client, nor have I moved in to live with a client. I live in a house that I own in Victoria with my then partner of 6 years and my 16 year old daughter. On 20/09/2019 I flew to New Zealand for a holiday and returned to work on 7/10/2019. In October/November 2019 I received a phone call at work from the deputy director of mental health in Broken Hill Christy McManus. She had received a phone call from an organisation we work closely with who provide psychosocial support to members of the community and shared case management of clients of [the service]. The local case worker from that organisation informed his manager in Broken Hill that I was in a relationship with a client and had moved in with this client. I informed Christy McManus that I was not in a relationship with a client nor had I moved in with one. Furthermore I informed her that I was in fact in a relationship with my partner of 6 years. As far as I was aware the matter had been resolved. I have not spoken of this allegation with anyone since the phone call from Christy. Response to allegation 2 which outlines that I allegedly used this client's phone to contact my employer. I have not accessed a client's phone to call my workplace. I have a private mobile phone and a house phone and a work mobile phone that are all in working order and have no need to utilise a client's mobile phone for my own personal use. As a registered Nurse I am very familiar with both the code of ethics for Nurses in Australia and the code of conduct for nurses set out by the Nursing and Midwifery Board of Australia. I am happy to provide a couple of character references who can vouch that the above information regarding my relationship status is true and correct. As for the phone call I am unable to provide evidence that I did not make a call from a client's phone other than the information I have provided in my response to allegation 2." Written submission from RN Leigh Crouch in section 150 hearing (undated) (Tab 32) "I appreciate the opportunity to respond to the adverse findings. However before I do that I feel I have to clarify the findings from the initial allegations as I do not believe that the advice that was given to me by an independent organisation has done my case any favours as I was advised to only answer the allegations in dot point to keep it simple and brief, however that has not provided the whole context of the conversations that had allegedly taken place and on reflection I found that all of the allegations were based on hearsay and or didn't occur and the two main witnesses had ulterior motives as they were in a sexual relationship and had plenty of time to corroborate their stories. I would also like to know why in the investigation that has been concluded new allegations can be brought into this… Allegation one findings It was concluded that based on the balance of probabilities and evidence provided, misconduct for this allegation raised against me has been found to be substantiated. Dot point one: As I have only known my co-workers since they were employed by FWDHS I would like to know what evidence they provided to show undeniable proof that I had known [Patient A] prior to his admission in March. I would like to highlight the fact th[at] this statement has come from two of my colleagues who were in a sexual relationship well before these allegations were made, and … I had cautioned our graduate nurse … that this was not appropriate and he then spoke to [t]he senior child psychologist … whom he was in the relationship with and she told me I shouldn't concern myself with their relationship. Dot point two: I arrived in Melbourne Australia to live at the age of 16, in 1989. I lived in Melbourne where I met my husband … and we moved to live in [the regional city] in 1994. I stayed in [the regional city] until my separation from my husband in 2013, I then moved back to Melbourne and lived there with my partner … until 2016 when we moved back to [the regional city] to live. At no point since I moved to Australia in 1989 have I ever met [Patient A]. The statement that I did not declare I had prior association with him before triaging him and subsequently case managing him, is incorrect as I had never met him before so how can I declare I knew him. I feel that this was not investigated appropriately as the person in question [Patient A] was not interviewed to clarify any prior relationship with myself. And the allegations were made by two professionals in a sexual relationship who had only known me since the[y] commenced employment with [the service]. This allegation is hearsay I would like to see the proof they have. Dot point 3: Patient A was transferred to [the graduate nurse] at the directive of Heba Day and Mark Heald. They were aware my case load was sitting on 43, and I was tasked with handing over 10 or more of my client load to [the graduate nurse] and De Ann [Manning] who was our agency nurse at the time, I chose clients that were coming up for discharge and were not complex cases at the time, [Patient A] was one of these, based on stability of mental state, he was no longer drinking alcohol and had had a successful stay at Neami, his medications had been reviewed by the psychiatrist and he was well linked in with services. His complex PTSD was something he wasn't ready to discuss and due to confidentiality I am unable to tell you why. However as both Mark and Heba had gone through the clients I was handing over and neither of them had any issue with [Patient A] going to [the graduate nurse] I transferred his care to him. Allegation two It was concluded that in mid-October while holding a discussion with another employee I referred to [Patient A] as a friend with Benefits suggesting I had commenced a sexual relationship with him while he was still an active client of the service. Again this is based on [hearsay] and gossip. Apart from witnesses stating they had heard or been the actual person I said it to there is no valid proof that I ever said this in regards to [Patient A]. I would also like to provide information of my movements during this time. In the first week of September my daughter informed m[e] she had cancer, [the graduate nurse] also informed me that he [and the senior child psychologist] were in a relationship, Heba came for her monthly visit I can't recall the date and we discussed as a team caseloads etc as we were going to be short on staff due to annual leave. I handed over my clients prior to flying NZ on the 19th of September as directed by the CNC and team leader. I arrived back in Australia on the 5th of October and recommenced work on the 7th of October. [The graduate nurse] then went on annual leave. When I arrived back my partner … also flew in from Brisbane on the 4th of October and stayed for two weeks before flying back to Brisbane at the end of October. At this time I was still in an active relationship and I was also busy caring for my daughter. I had not up to this point commenced a sexual relationship with [Patient A]. Nor had I been in contact with him outside of work I only had dealings with him in a pro[f]essional capacity. Dot point 1 and 2 Apparently this dot point is evidence that someone was eavesdropping on a conversation they were not actively involved in so how is this testimony proof, and how is it evidence when the person wasn't involved in the conversation. I can provide two witnesses to confirm that on one occasion I was having a discussion at lunch with Louise [Isaacs] and De Ann regarding our relationships with our ex-husbands. I told them I was lucky as I had a good relationship with my ex-husband …, particularly at the time as our daughter had been diagnosed with cancer and he had been a great support to me, I often referred to him as my friend with benefits. Apparently this conversation has been taken out of context and manipulated to serve the purpose of proof that I was referring to [Patient A]. Dot point 3 I do find this statement vulgar and that is because it referred to [Patient A] who was a previous client perhaps the word vulgar was not the correct term however I did not think that the words I wanted to use were appropriate so used vulgar. Dot point 4 Again this is [hearsay] and two of the witnesses were in a sexual relationship which I had previously cautioned the Graduate nurse about upsetting the senior Child Psychologist with my views and quote 'interference in their blossoming relationship' unquote. And furthermore, I was sitting on the lawn across the road when both [the graduate nurse] and [the child psychologist] came out, I was listening to some Christmas carols when [the graduate nurse] asked who was singing, I said my friend '[Patient A's first name]' … they then sat down and we had a chat about Christmas plans. Dot point 5 and 6 [Patient A] presented to the clinic requesting to speak to his case manager …, De Ann spoke to him initially however she asked me to come up to reception to speak to him as I knew him and was on triage that day. He required assistance to finish his form and needed photocopies to have them certified this was all done in the presence of De Ann and the admin person. I assisted him in a professional capacity and he returned 20 minutes later to ask if his forms could be sent as he did not have access to a computer or fax. This was also attended to in the presence of De Ann and the admin. Again as [the graduate nurse] was on annual leave and I was the triage worker at the time I only did what was required of me in that role. I also feel that in light of the seriousness of the allegation, that the investigator would have asked why [Patient A] had not seen his case manager and found that [the graduate nurse] was on annual leave as per health roster [of which would be a record…. Allegation 3 It is alleged that on the 17th of October I had been questioned about an allegation raised by an external organisation that I was moving in with [Patient A] and was in fact assisting him to move into a new house. Also that there was no written documentation in [Patient A's] notes to confirm this as is required. Dot point 1 The initial concern was reported while I was on annual leave and I was not made aware of this until I received a call from Ms McManus. At no point during the month of September till the 17th of October were there concerns raised with me by the original complainant. I had had no contact with [Patient A] other than in a professional capacity. I did not know that [Patient A] was looking at moving from the caravan park as this was not the case when he was on my case load and I had little to do with him since transferring him as I went to NZ and then had my partner here for the following two weeks. I feel that the case worker also had a duty of care to the client if he felt that there was a concern, however as I have never spoken to the case worker or [Patient A] about this allegation I'm in the dark as to how it came about. I would like to know though [why Patient A] was not contacted to discuss this if he made the initial comment to ascertain what was said and why. I did not document this in his notes as this never happened so I can't document what didn't occur. Dot point 2 I would like to know when and how often I was observed at [Patient A's residence] I would also like to know which [residence] as I only saw him several times at the caravan park during the time I was case managing him. I have also seen him several times at about her [sic] clients residence when I have visited to drop of[f] a path slip. Prior to his discharge from the service as far as I was aware he was still living at the caravan park. I would also like to know what proof was provided to show I regularly frequented his residence in a non‑professional capacity while he was still a client of the service. If it was verbal and by the two clinicians who were in a sexual relationship at the time then I feel again this is [hearsay] and is looking like a witch-hunt. Dot point 3 and 4 I am also perplexed as to how the investigator was satisfied that these allegations were true and I lied as I feel the testimonies provided by two of the witnesses could be interpreted as biased and they have calibrated [sic] to provide witness testimony that matches. Again [hearsay]. I am offended that the investigator has stated on record that due to the findings of these allegations I have shown an established pattern of dishonest behaviour. This is a slur on both my professional and personal character and despite this being in the context of an investigation I do not feel this is true and correct. Replies to further allegations I would like to say before responding to these allegations that I feel this whole incident has been a direct result of the two allegations I made about our clinical nurse specialist…. Last year [the child psychologist] was interviewed for the CAMHS clinician, one of the people on the interview panel was [the clinical nurse specialist]. Although [she] got the position she did not commence active case management for several months, during this time both [the clinical nurse specialist] and [the child psychologist] stayed in close contact through phone email and regular lunch at the local club during work hours. [The clinical nurse specialist] made no secret of this and on one occasion organised for her to come to see the clinic before taking her to lunch. Both De Ann and I were down at the back where our desks were located and he showed her her desk which was to be located next to his. At the time [the graduate nurse] was under [the clinical nurse specialist's] clinical supervision actually up until [he] took personal leave in January. [The child psychologist] has often commented that without [the clinical nurse specialist's] support she probably would not have stayed due to the length of time it took for her employment paperwork took to be finalised. Based on [the child psychologist's] relationship with [the clinical nurse specialist] and my previous sexual harassment complaints, I distanced myself from [her] as I did not feel comfortable with her relationship with [the clinical nurse specialist] or [the graduate nurse]. [The graduate nurse] spoke to me in early January prior to [the clinical nurse specialist] going on personal leave and encouraged me to relax and try to develop a friendship with [the child psychologist] as she had told him that she didn't think I liked her and my relationship with her and [the clinical nurse specialist] was different to the one I had with everyone else on the team. Against my better judgement I did develop a friendship with her, and found she was very helpful in asking advice on things pertaining to my 16 year old daughter with autism, we also often discussed our prior relationships, however I did have to tell her on one occasion when she and [the graduate nurse] were having difficulties in their relationship that I did not want to discuss her relationship with [the graduate nurse] as they were my colleagues and I felt this was not appropriate or fair on me. She then asked me how I felt about her relationship with [the clinical nurse specialist] and I told her the same applied…. On the 24th of October I was with De Ann in [town] when we were approached by [Patient A] who offered to buy our coffee, he stated he wanted to do this to thank me for all my help during his time at [the service]. I asked him to join us and the three of us sat and had a coffee. It was then that I found out that he had been discharged by De Ann. [Patient A] was exited as he was in the process of looking at houses to rent and praised his case worker Brad [Pettitt] from Mission Australia for assisting him to get the applications filled etc. He had recently been told by his cancer specialist that he was in remission and had been given a clean bill of health at his recent appointment in Melbourne. De and I finished our coffee and returned to work. It was in late November that I bumped into [Patient A] in [town]. Keeping in mind part of my role as a community mental health nurse is to go out into the community to see clients, pharmacists and GPs. [The town] has a population of 1,248 the chances of running into past and present clients is highly likely. Adverse finding - allegation 1 I can confirm I have been to [Patient A's] residence … in the capacity of his case manager prior to transferring his care to [the graduate nurse] and yes he did have visitors there at the time and yes they were drinking, and yes one of the visitors was another of my clients. [Patient A] can socialise with whomever he chooses and I have no say as to who he has at his residence. As I was not able to contact him by phone and needed to drop of[f] a script to him I went there unannounced. He and his friends were sitting under the awning of his caravan. He saw me drive up and walked over to the car. I did not breach either his or his friends confidentiality by acknowledging I knew his friend. I gave him his script and drove back to work. I did mention this to several clinicians when I arrived back to the clinic and how in such a small community you are bound to come across situations like this and as a group we had an informal discussion about it. I would like to know what I did to cross any boundaries in this finding. Adverse finding - allegation 2 During the months of December and January I developed a platonic relationship with [Patient A]. On an occasion in December prior to our annual break I saw him in [town] and he asked if he could buy me coffee. As I was on my lunch break I accepted. He told me he would like to take me out for dinner. I informed him that I had just come out of a relationship and wasn't interested in starting a new one. He then asked if it would be ok to stay in touch as friends and I agreed. We swapped phone numbers and stayed in contact with each other. We have developed a good friendship. I can confirm that on the 10[th] of February I ran my car onto the gutter and damaged the wheel. I can also confirm that I contacted someone to come and look at it as I didn't know if it was safe to drive on, I can also confirm that the person was [Patient A]. However I was not aware he was bringing his friend who I was case managing at the time. What I find alarming is that I hadn't told anyone I had contacted someone to come look at my car, which leads me to feel that someone has been stalking me and monitoring my movements both during and after work. If I am correct I feel this is something that needs to be reported to the police as I don't feel safe in my work or personal environment knowing someone I work with has been stalking me. I feel this is a violation of my privacy. Adverse finding - allegation 3 I would like to know what the content of these texts were, if I am being accused of sending them should I not be informed what they contained. 1: at the time [of] this allegation my team leader was in India on holiday with his wife, this left the [clinical nurse specialist] in charge, the same [person] that I had put in a complaint against for sexual harassment. I would like to know how it is that the only proof you have that the text came from [Patient A's] phone was to look on Choc and match the number to the one on his file. I would like to highlight that details to client files are updated all the time, all you need to do is ask someone with access to IPM so how do I know that his number wasn't changed prior to the text being sent and this was done on a phone that does not belong to [Patient A]. No one has actually contacted [Patient A] to confirm or collaborate any of the allegations. I know this as Jodie Miller confirmed he had not be contacted or interviewed in my meeting with her Amanda Berryman when I was stood down. I would like to highlight that the text and number was checked on the 14th of November after [Patient A] was discharged and before the allegations went in on the 11th of February 2020 to NSWHD and then an anonymous report to HCCC on the 17th of February both claiming I had text from [Patient A's] phone. Why was this checked as there was no reason at that stage to do this. I was with my daughter and grandson for most of the day. I had my hair done. I was also assisting my daughter for days prior and post this texting date as she had undergone surgery to have her cancer removed. She is happy for you to contact her to confirm this. … Adverse finding - allegation 4 I had been discussing aspects of my daughters upcoming wedding in May and searching for mother of the bride dresses. Louise can confirm this as the discussions were with her. You can also contact my daughter … to confirm that they were getting married in May. Please let me know if you wish to do this and I will provide you with her phone number. Again someone has listened to a conversation they were not part of and taken this discussion out of context. Adverse finding- allegation four I can confirm I asked Louise to be my maid of honour. This was after we were looking at pics of mother of the bride pieces. To lighten the mood I said to Louise quote 'If I am ever stupid enough to get married again would you be my maid of honour' unquote. Louise then said 'I'd be honoured to support your stupid decision to remarry' and we then bust out laughing. Again a conversation that Louise and I had who someone who was not part of the conversation has overheard and taken out of context, the reports around the wedding allegations are false and in my option [sic] reported for malicious reasons as everyone in the clinic knew my daughter was getting married and the only other person present when I asked Louise to be my maid of honour was [the child psychologist] who was sitting on the couch in reception watching something on her phone. Louise can confirm all this information … Adverse finding - allegations I assisted [Patient A] with his paperwork in my professional capacity as the triage worker. Please check health roster to confirm his case manager was on annual leave, also you can contact De Ann to confirm this as she was present at the time. Adverse finding - allegation 6 As I did not discharge [Patient A], you would have to speak to De Ann as she discharged him, I can confirm however that once [the graduate nurse] had gone on annual leave we had a team discussion about his case load which he had provided a handover sheet for to each clinician. He had highlighted some of the clients for discharge and Mark asked De Ann to discharge these clients. Adverse finding - allegation 7 I would like to know what proof was provided to support this allegation again this is [hearsay]. I can confirm that initially I was upset by the report as Brad had not spoken to me first to discuss the issue however to maintain a working relationship I never pursued it with Brad and to this day we have never spoken of it, nor have I said he caused problem with me and [Patient A]. If anything the only person Brad's report affected was me. [A]t the time of the initial complaint last year by Brad, I had so much going on with my daughters cancer diagnosis, I had separated from my partner … and was trying to work out how life had become so difficult, at the end of the day I am a single mother I live with my 16 year old autistic daughter, I pay a [m]ortgage and all our living expenses and I work full time. I have no time for a relationship in the form of seeing someone to have sexual relations with. My daughter who lives with me was treated very badly by my ex-partner … and as a teenager with special needs it will be a long time before I would look at another relationship with someone intimately because of the impact [my ex-partner] had on her ability to trust. I feel that the allegations have been a continuation of the formal complaints I made of sexual harassment of the [clinical nurse specialist], I do believe that this has turned into a witch hunt, has not been investigated appropriately as most of the information came from two people who were in a sexual relationship for many months prior to and after the allegations were made. The individual who made this complaint to both FWDH and the HCCC did not follow appropriate FWDHS policy which states that if you have a concern you follow the hierarchy of complaint, the first step being speak to the person they had the problem with. [I]f the issue is not resolved then the next step is to go to your line manager etc. I was never approached by Brad or [the graduate nurse] or [the child psychologist] to discuss their concerns. In fact on the 1st of April 2020 the day I was stood down I spoke to [the graduate nurse] and during the conversation he admitted to being involved, when I explained that I had been stood down and my contract had been terminated he said that he and [the child psychologist] didn't think it would go this far. [H]e asked if I was ok and I said no I'm not ok and I told him not to contact me ever again and hung up. [The graduate nurse] then called the … police to report that I was a suicide risk, I had to present to the … police station so they could verify I was ok, ultimately completing my humiliation with this whole saga." 1. Furthermore, in response to an enquiry by the Nursing and Midwifery Council (the Council), the Respondent answered a number of questions which essentially mirrored the responses to the complaint set out above. EVIDENCE OF THE APPLICANT 1. The Applicant provided a bundle of documents with tab numbers 1 to 54 which included a number of statements by various witnesses to the allegations made against the Respondent in the Complaint. None of the witnesses were required to be called for cross‑examination. 2. In addition, the expert who provided the investigation report was not required for cross‑examination. 3. The Tribunal does not propose to go through in detail the evidence of each of the witnesses, some of whom were co‑workers and some of whom were employed in alternative services, save to say that the witness statements reflect and confirm each of the allegations made against the Respondent in the Complaint and are supported by the investigation report prepared by Mr Paul Fletcher dated February 2020 (Tab 10). 4. In summary, the investigation report supports the complaint and records the following at pp 15-18: "6. Matters Arising The following additional matters, which arose from the evidence provided in this investigation, were considered in need of further consideration and or investigation by FWLHD: - It was reported by [the graduate nurse], that when visiting Ms Crouch at [Patient A's] address …, in addition to [Patient A] and Ms Crouch's daughter … being present, one of [Patient A's] friends, [Patient B], … was also present, socialising with the group. [The graduate nurse] identified [Patient B] as a current client of Ms Crouch at the [service]. Separately, [the child psychologist] reported [Patient B] accompanying [Patient A] to collect Ms Crouch's car from work on 10 February 2020, after Ms Crouch ran the car into the gutter. The possibility that Ms Crouch may be socialising with a current client in the home of her partner and/or elsewhere is considered a matter requiring further investigation. - During the course of this investigation, several pieces of information were provided to the Investigator that indicated there was an advanced personal relationship that had developed between Ms Crouch and [Patient A], as follows: - The receipt of a series of text messages sent by Ms Crouch to Mr Heald on 14 November 2019, between 8.41am and 9.51pm, using a phone number that was recorded on patient records as belonging to [Patient A]. - [The graduate nurse] claimed that Ms Crouch had discussed aspects of her impending wedding to [Patient A], scheduled for May 2020, with both [him] and Ms Louise Isaacs. Separately, [the child psychologist] reported that Ms Crouch had asked her whether she would like her wedding invitation to include [the graduate nurse], or for separate invitations to be issued to each. - [The child psychologist] and [the graduate nurse] had each separately reported that Ms Crouch had been actively searching for wedding dresses online at work, going so far as to request [the graduate nurse's] assistance in measuring her shoulders to determine the appropriate sizing of the online dress options. - A statement was provided by [the graduate nurse] that, on 5 February 2020, he overheard Ms Crouch tell another staff member, Ms Louise Isaacs, that she was getting married to [Patient A] and asking Ms Issacs to be her maid of honor. - A statement was provided by [the child psychologist] that during a conversation with Ms Crouch on 4 February 2020, Ms Crouch confirmed that she and [Patient A] were to be married in May this year. - Patient progress notes, completed by Ms Crouch and related to [Patient A], confirm that he attended the clinic on 21 October 2019, and that Ms Crouch assisted him to complete paperwork associated with his Superannuation. This was despite her having ceased as his case worker on 16 September 2019. - The Investigator was concerned as to the timing of [Patient A's] discharge from the Service, which was recorded as 24 October 2019. Ms Crouch had been contacted by Ms Christie McManus on 17 October 2019 and questioned about the report received from Mission Australia claiming that personal relationship had been formed with [Patient A]. [Patient A] then discharged himself one week later. Records show that [Patient A] was seen by Ms Crouch in a professional capacity on 21 October 2019, yet there is no record of any discussion concerning his potential discharge from the Service. Ms Dee-Anne Manning, a reportedly close friend/colleague of Ms Crouch, processed [Patient A's] discharge paperwork on 24 October 2019, with no due process, no discussion with the Mental Health and Drug and Alcohol Service team, no referral to his treating Psychiatrist nor to [the graduate nurse], his current Case Manager (who was on leave for the week). It should be noted that, in interview, Ms Manning did not recall any detail associated with the discharge of [Patient A]. At the time, Ms Jewell claimed that Ms Crouch had confided in her that "...Brad from Mission Australia had caused early dramas with her and [Patient A] because he reported the relationship to Christy McManus, Deputy Director..." - In a related but separate report from [the child psychologist], received by the Investigator, serious concerns were raised about the culture within the office at the [service]. The manifestation of this culture, referenced directly by [the child psychologist], was in part, reflected in frequent use of expletives by staff in the office. [The child psychologist] has referenced her confidential complaint to the Team Leader, Mr Heald, and Mr Heald's attempt to address this issue directly with staff. [The child psychologist] has further referenced the attempt to trivialise the issue and target the Complainant by both Ms Crouch and Ms Isaacs. 7. Conclusion The NSW Health Code of Conduct and CORE values provide a clear guide on the standard of behaviour expected of employees within the Far West Local Health District. Further, both the Nursing and Midwifery Board of Australia's (NMBA) Code of Conduct for Nurses and the Code of Ethics for Nurses in Australia are clear in their guidance on the appropriate management of relationships with patients, both past and present. When directly questioned by Ms McManus, Ms Crouch confirmed her clear understanding of the guidelines and standards detailed in the respective Codes. It became apparent to the Investigator during the interviews with staff, particularly [the graduate nurse] and [the child psychologist], that Ms Crouch was acutely conscious of the professional risks associated with her conduct of a personal relationship with [Patient A]. This manifest itself in her obfuscation and various manipulation of the facts and separate conversations surrounding the evolution of the relationship with [Patient A]. The overall weight of the evidence confirms to the Investigator, that: - there was, and still is, a personal relationship established between Ms Crouch and [Patient A]; - the relationship was established prior to mid-October 2019, when Ms Crouch was initially questioned by Ms McManus; - Ms Crouch has variously lied to Ms McManus and the Investigator, in denying any contact with or knowledge of [Patient A], subsequent to his transfer to be managed by [the graduate nurse]. The efforts that Ms Crouch has adopted to mislead Ms McManus, the Investigator and her work colleagues, reflect two key characteristics that the FWLHD should note: 1. That Ms Crouch is aware that in engaging in a personal relationship with [Patient A], she is in breach of the NSW Heath Code of Conduct and Core values, the Nursing and Midwifery Board of Australia's (NMBA) Code of Conduct for Nurses and the Code of Ethics for Nurses In Australia. 2. That Ms Crouch has actively and knowingly lied to both the Ms McManus and the Investigator appointed by the FWLHD, in an effort to mislead the investigation and avert the consequences associated with her actions. In doing so, Ms Crouch was viewed to breach the trust that is fundamental to the employment relationship and that must be relied upon in such critical roles." 1. The Applicant called Mr Warren Shaw, an expert retained by the Applicant to provide an independent expert report in relation to the complaint made to the Commission concerning the Respondent. Mr Shaw's report dated 22 September 2022 (Tab 43) pp 3-18 is set out below. "Section A: General Questions 1. Please comment on best practice for the management by registered nurses (RNs) of interpersonal relationships with current and former patients in a remote or rural setting. In your response, please identify what particular challenges a RN in a rural environment may face, compared to practitioners in city areas, and how those challenges can be managed in a practical way. In the scope of their work [n]urses are required to generate and maintain relationships with patients that are respectful, professional and therapeutic, cognisant of privacy and confidentiality. As this is the initial basis for the relationship nurses are expected to maintain the same position after the therapeutic relationship ceases. The rurality or remoteness of the geographical setting for the formation of therapeutic relationships with patients has no bearing on the principles and expected practices in regard to maintaining a relationship bounded by professionalism. Similarly, the differing care settings, be it within inpatient units or community based or both, also hold no bearing. While the likelihood of ongoing chance contact with, or overlap across social networks with current or former patients may be increased in rural and remote settings. the nurse's professional responsibilities and guiding principles for managing such circumstances, remain unchanged to that of nurses working in city or urban environments. … 2 Please provide your opinion as to whether there is a particular period of time after which it would be acceptable for an RN to form a platonic relationship or friendship with a former mental health patient? While the Nurses and Midwives Code of Professional Conduct is silent on time periods between professional and personal relationships it remains clear that the professional relationship is a privileged one in that it would not have occurred outside the need for care. Therefore transitioning from a professional therapeutic relationship to a personal one, be that platonic, is best avoided. Where the nurse holds doubt or where social contact is increasing, the nurse carries a responsibility to be accountable and transparent. The nurse should therefore raise this and seek guidance from their line manager and supervisor, especially if they are unable to manage this circumstance professionally themselves. 3 Please provide your opinion as to whether there is a particular period of time after which it would be acceptable for an RN to cohabit with a former mental health patient? As mentioned in the response to Question 2 the Nurses and Midwives Code of Conduct for Nurses is silent on time periods between professional and personal relationships. In terms of relationships, cohabitation would have to be recognised as taking a platonic relationship to a new level, regardless of the degree of intimacy involved. It includes significantly more contact and is more likely to compromise other colleagues and consumers. There is also a sharing of household and lease responsibilities and other financial considerations. Cohabitation with a current or former patient signals a disregard for professionalism to colleagues, friends and the community and is … therefore worthy of questions in regard to motivations, personal gain and exploitation. Cohabitation will also carry the potential for breaches of the patient's confidentiality and compromise professional colleagues who become aware or visit. 4 Please provide your opinion as to whether there is a particular period of time after which it would be acceptable for an RN to enter into a de facto or intimate/personal relationship with a former mental health patient? As mentioned in the response to Question 2 the Code of Conduct for Nurses is silent on time periods between professional and personal relationships. However, this document clearly states that a nurse should: "… avoid sexual relationships with persons with whom they have currently or had previously entered into a professional relationship. These relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct…" … Section B: Assuming the version of events set out in the Chronology Conduct occurring during the therapeutic relationship 13 March 2019 to 16 September 2019 1. Based on the medical records provided, please provide your opinion on the adequacy and appropriateness of RN Crouch's treatment and care of [Patient A] in her capacity as his case manager. Based on the medical records provided there would appear to have been very little treatment or care provided by RN Crouch. The records indicate: • Poor assessment notes with unclear treatment goals and reasons for involvement. • Scant, infrequent and unsophisticated record entries, with several entries recorded on single days. • No record of structured evidence-based treatment. • An apparent incomplete record of home visits. • No evidence of meaningful liaison with Mission Australia in terms of shared care. • Lack of documented reasoning regarding changes in case management. • No evidence of clinical case discussion informing discharge from service. Upon comparison with other records supplied, The Reviewer also noted: • Mission Australia, using supposedly lesser skilled staff, exhibited a higher level of documentation and captured references to RN Crouch 's involvement including appointments and liaison. • A contrast in the standard of RN Crouch's entries in [Patient A's] medical record compared to that of records supplied for [Patient B]. The Reviewer is not in a position to comment on [Patient A's] need for mental health and drug and alcohol support through case management. However, the Reviewer was concerned by the speed and scant information regarding the transfer of case manager followed by [Patient A] electing to discharge from the Service. Whilst patient's self-determination in care is important and should be respected, nurses should establish an understanding of the patient's motivation in ceasing or changing treatment and plan accordingly – including after care arrangements and referral, relapse planning and so on. The Reviewer held concern that both the decisions to transfer case management and discharge [Patient A] did not appear to involve the clinical team, suggesting the decisions were somewhat covert and reflective of ulterior motives. This is an example of indirect disadvantages that can occur for patients when professional boundaries are crossed. The standard reasonably expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct, would include maintaining professional and therapeutic contact with the patient and recording this contemporaneously thus maintaining clinical end professional transparency. Significant decisions regarding change of case manager or discharge should ideally be subject to clinical team input and scrutiny. Choosing not to record clinical contact or care suggests that such contacts were covert and therefore for ulterior and questionable motivation. It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 2. Please provide your opinion as to whether RN Crouch observed appropriate professional boundaries in her therapeutic relationship with [Patient A]. In answering that question, please address the appropriateness of RN Crouch contacting [Patient A] on the following times/dates outside regular business hours: – 3 September 2019 at 2:40am (text message) – 7 September 2019 at 5:28am (text message) – 7 September 2019 at 9:39pm (text message) – 8 September 2019 at 3:48am (voice call & text message) – 10 September 2019 at 10:14pm (voice call & text message) – 14 September 2019 at 2:21am (MMS message which may include images, video and audio files). There is significant evidence to support that RN Crouch did not observe appropriate professional boundaries in her therapeutic relationship with [Patient A]. Clearly RN Crouch and [Patient A] had exchanged personal contact details and examples above reflect contacts after hours, including late evening and in the early hours of the morning. There is no reasonable explanation as to why these contacts occurred in any clinical or professional capacity … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 3. Please comment on the appropriateness of RN Crouch contacting [Patient A] in reference to the call charge summary (see Tab-31) without making corresponding notes in his patient record (excluding 9 September 2020 where a note was made re: phone call with [Patient A]). The Reviewer notes that the contacts referenced in the call charge summary supplied reflect that: • Contacts occurred between 20 March 2019 and 16 September 2019. • There is a clear pattern of increasing frequency over time. • The majority of contacts occur outside of office hours. • There is no entry to capture these contacts in the medical record. The above patterns are congruent with a personal relationship developing between RN Crouch and [Patient A]. Failing to document this suggests being purposefully covert, given the nature, timing and frequency of contacts. Generally, Health Services will provide access to mobile phones to clinicians to go about their work. These maybe shared and signed out for home visiting or allocated individually to staff. Access to LHD mobile phones helps the LHD in meeting work health and safety obligations and protects the clinicians' individual privacy by limiting contact ability to when 'on duty'. The Reviewer understood that the call charge summary related to RN Crouch's personal phone rather than a work supplied phone, confirming that she exchanged numbers early in the professional relationship, that she carried an expectation that this contact would have gone undetected and therefore did not report on it. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. Conduct occurring after the therapeutic relationship 4. Please provide your opinion on the appropriateness of RN Crouch entering into a lease agreement for a property … with [Patient A] on 11 October 2019. Entering into a lease agreement with [Patient A] is further and frank evidence of the graduated drift from a professional relationship to an increasingly personal one. … Entering into a lease agreement includes both financial and legal decisions and an intent to enter into a more intimate relationship. This action was highly inappropriate and reflects indisputable evidence that RN Crouch has lost sight of her responsibilities regarding maintenance of professional boundaries and reporting this where these were in jeopardy. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 5. Please provide your opinion on the appropriateness of RN Crouch entering into a de facto relationship with [Patient A] sometime in or around October 2019. Similar to the above response entering into a de facto relationship with [Patient A] was highly inappropriate and unprofessional. RN Crouch clearly understood that the relationship had developed to this level of intimacy, electing to declare this on her lease agreement. Her failure to declare cohabitation or the de facto relationship status to her clinical team or line manager also indicates she knew this would be recognised as unethical and unprofessional. The Reviewer notes there is evidence that RN Crouch explored this topic on the internet whilst on duty. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 6. Please provide your opinion on the appropriateness of RN Crouch sending emails from her work email account to Australian Superannuation: (a) on 4 November 2019 enclosing forms on behalf of Patient A for the withdrawal of $12,200.00 from his superannuation fund which include her personal email address as his contact email address; and (b) on 6 November 2019, which email purports to be Patient A nominating bank account/details for the withdrawal of $12,200.00. These actions were blatantly inappropriate. The NSW Code of Conduct is very clear … in sections 4.2.1 and 4.2.2 that Health Employees are to avoid involvement in financial dealings of patients and the need for transparency and reporting in regard to this. Many mental health services will have local policies and procedures regarding financial dealings to protect patient welfare. The Reviewer notes that RN Crouch claims her including her personal email address as an oversight on her part. There is also no plausible reason for her purporting to be [Patient A] in an email. The Reviewer formed the opinion that provision of her own email address on 4 November 2019 and purporting to be [Patient A] in the 6 November 2019 email nominating bank account/details for the withdrawal of $12,200.00 demonstrated: • Evidence that blurring of professional boundaries was already underway. • That RN Crouch disregarded her obligations under the NSW Health Code of Conduct. • RN Crouch's disregard for honesty and transparency when engaging financial institutions in her representations on behalf of [Patient A]. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected or a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 7. Please provide your opinion on the appropriateness of RN Crouch having [Patient A] and [Patient B] present at her home … on 14 February 2020. It is not uncommon for those experiencing difficulties with their physical or mental health to make connections and form friendships with people facing similar challenges. This is perhaps more likely the case in smaller rural or remote communities. The situation of having two patients at her home represents the "slippery slope" that can occur when a Nurse elects to relax or ignore the need for professional boundaries with a patient to form a personal relationship. When electing to transition to a friendship with a current or former patient the Nurse should surely not then be surprised that this will extend to include those in the patient's social network, including other patients. Having [Patient A] and [Patient B] present at her home was highly inappropriate. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 8. Please provide your opinion as to the appropriateness of RN Crouch and her daughter being at the [rental property] in the company of [Patient A] on or about 18 January 2020. When a nurse loses sight of professional boundaries and engages with a patient in an intimate personal relationship it is likely to only be a matter of time before friends and family become aware and indeed entangled. RN Crouch carries a range of professional responsibilities as well as parental responsibilities, including maintaining a safe environment for her daughter. The Reviewer noted references by RN Crouch that her daughter experiences a developmental disability. RN Crouch clearly demonstrated poor judgment in regard to her conduct toward [Patient A]. Her decision to ignore professional boundaries and introduce her daughter into the covert relationship is further evidence of her continual drift away from her professional responsibilities. Concealment of her actions has effectively compromised [Patient A], her professional integrity and would presumably result in some confusion for her daughter. In the absence of any information regarding her daughter's condition or capability the Reviewer was left wondering if her daughter was required to collude in the concealment in any way. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 9. Please provide your opinion on the appropriateness of RN Crouch being at the [rental property] in the company of [Patient A] on or about 15 February 2020. RN Crouch was witnessed as present at this address with [Patient A] by her work colleagues, which further contributes to a longitudinal picture of boundary violations of cohabitation and intimacy. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 10. Please provide your opinion on the appropriateness of RN Crouch cohabiting with [Patient A] for the period of a year between 15 October 2019 and 14 October 2020: (a) as platonic flatmates; or (b) as a de facto couple. Both scenarios are examples of inappropriate conduct given her initial professional relationship with [Patient A]. … Apart from the comments and opinions reasons already discussed in response to previous questions regarding both scenarios, the impact on the credibility of the nurse (and their profession) with their colleagues, friends and the communities they serve cannot be overstated. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. Section C: Assuming RN Crouch's Version of Events 1. Please provide your opinion as to the appropriateness of RN Crouch attending [Patient A's] home at [the caravan park] to hand deliver items such as prescriptions and appointment cards in her capacity as his case manager. Please include in your response your opinion on RN Crouch failing to note these occasions in [Patient A's] case notes. A review of [Patient A's] notes suggests that the clinical opinion was that he experienced a post-traumatic stress disorder and a long history of various substance misuse and dependence. His clinical notes also suggest he was, at that time, living independently, had an income, a social network and was mobile with his own car. He was able to attend appointments for clinical review, prescriptions and so on. He also had a mobile phone that was clearly known to RN Crouch. [Patient A] was also receiving regular support through a case worker from Mission Australia. … Delivering prescriptions and appointment cards would seem counterintuitive for a nurse in this circumstance and suggests a lack of discernment of the use of her time. It would also seem more likely to foster dependence and reliance in patients who are otherwise independent and therefore leaves the Nurse open to criticism regarding whose needs are being met in such circumstances. As mentioned earlier neglecting to document such activity: • strongly suggests the covert nature of the contacts; • fails to protect the Nurse professionally through transparency; and • fails to meet the clinical and corporate governance related requirements of her employment. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 2. Please provide your opinion as to the appropriateness on RN Crouch going for coffee with [Patient A] on 24 October 2019 in company with Dee-Ann Manning. … Professional boundaries may be challenged more often particularly for those who not only work in regional or rural areas but also live there. Health professionals living and working in a rural community will, out of necessity have business and social relationships that overlap with the people for whom they may also provide care. The need to manage potential professional boundaries becomes more important in this situation, especially when the community has expectations that the nurse is potentially 'on duty' at all times. There is a difference between having an informal therapeutic relationship, being an acquaintance and being a friend, with the onus being on the health professional to be clear at all times about the distinction between them. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 3. Please provide your opinion as to the appropriateness of RN Crouch providing her phone number to [Patient A] in December 2019 with the intention of staying in touch as friends. The Reviewer has already commented on the inappropriateness of transitioning from a professional relationship to a personal one. RN Crouch's decision to provide her personal contact details to a former patient was not perceived by the Reviewer to be a naive one but rather reflected: • a conscious intention to transition to a friendship with a former patient. • opportunism in her meeting her own personal needs. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 4. Please provide your opinion as to the appropriateness of RN Crouch developing what she describes as a 'platonic relationship' and 'good friendship' with [Patient A] in December 2019 and January 2020. Nurses, in their care of individual patients are required to engage with the patient for the purposes of observation, assessment, treatment and support as key components of their therapeutic alliance. Despite engagement with patients sometimes being quite informal in nature there are distinct differences between a therapeutic relationship and a friendship. Responsibility rests with the health practitioner to understand the differences and avoid blurring between the two. RN Crouch's account of her developing a platonic or good friendship with [Patient A] appears to carry some hope that her reporting this after his (somewhat sudden) transfer in case management and discharge from the service, will somehow legitimise her actions of waiting to form a friendship. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. 5. Please provide your opinion as to the appropriateness of RN Crouch contacting [Patient A] for assistance when she was involved in a minor car accident on 10 February 2020. It would be highly inappropriate to make a current or former patient the first person of contact in an urgent or emergency situation, regardless of the patient's expertise or life experiences. In the absence of a personal relationship a patient may feel some obligation out of gratitude for previous professional support provided by the nurse to respond to this request, representing personal gain from a previous professional relationship. … It is the Reviewer's opinion that the conduct of RN Crouch is significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invited the Reviewer's strong criticism. Section D: Other 1. Please make any other comments about any other aspect of RN Crouch's conduct that you consider relevant. RN Crouch's explanations and responses to interview and written requests for information show significant inconsistency and often lack plausibility (including her proposal that she was being stalked and conspired against). Additionally comparing and contrasting against the available evidence highlights a number of significant concerns: a) The information she has provided during investigation from both within her LHD and the Commission appears far from accurate and less than honest. b) Her misleading responses would suggest a lack of insight and judgment regarding her professional conduct and indeed a lack of remorse. c) Her actions appear more congruent with someone avoiding detection regarding unprofessional behaviour, suggesting RN Crouch knew her actions of forming a relationship with [Patient A] were inappropriate. RN Crouch elected to proceed anyway, effectively putting her own emotional needs and wants ahead of that of [Patient A] and the integrity of her profession. d) The seriousness of her inappropriate relationship with [Patient A] is further amplified by her efforts to conceal this by misleading her employer and the Commission. Additionally, RN Crouch (and some other witnesses) cite poor team dynamics and challenging office "politics" as being relevant to the allegations that have been put to her. Nurses by their professional training are trained to plan, act and evaluate before reviewing their next steps. If RN Crouch could not elicit support or guidance within the team due [to] its apparent dysfunction, or indeed trust her colleagues enough to disclose her inability to maintain her professional boundaries, then she should have actively taken steps to establish support elsewhere, including escalation within the Service." 1. The expert was asked whether the marriage between the Respondent and Patient A in 2021 alters anything in his report, which he indicated it did not. 2. Following an explanation by the Tribunal to the Respondent that it was her opportunity to cross‑examine Mr Shaw, the Respondent indicated that she had no intention to cross examine Mr Shaw and following that the Applicant closed its case. EVIDENCE OF THE RESPONDENT 1. It was explained to the Respondent that she could make an opening statement and determine whether she wished to give evidence under oath or affirmation or whether she preferred to make a statement from the Bar. (The term "Bar" was explained to the Respondent.) The Respondent opted to give evidence under affirmation and stated that in 2019 when the allegation was brought against her it was a very difficult time in her life. She was very stressed and as far as the allegation about not recording is concerned she was working with a very heavy caseload of 49 patients and was not coping. It was not good for her mental health. She added that she had just been sexually assaulted and harassed, her daughter was diagnosed with cancer and she was stressed about that. 2. She accepted that her judgment was not the best and that she is not proud of her behaviour. She stated that she knows that she did things wrong. She stated that she was unrepresented because she could not afford the cost of instructing counsel which had been estimated at $300,000 and that she did not have that money. She stated that she made a mistake, apologises wholeheartedly and is very sorry about what she did wrong. 3. The Respondent was then cross‑examined by the Applicant. 4. Cross‑examination raised questions of the use and communication by the Respondent with Patient A of her personal mobile number and the fact that she had given that number to Patient A. Cross‑examination also went to issues of the Respondent's knowledge of Patient A's psychiatric position to which she responded that she was aware that he was a vulnerable patient. The Respondent was Patient A's case manager between 20 March 2019 and 16 September 2019 and it was pointed out to her that in about August and September 2019 the calls increased dramatically, they took place at various times of the night, some of which were in the middle of the night or early morning. It was put to the Respondent that she was using her personal mobile phone and that the strange hours of the calls indicated that there was a personal relationship with Patient A. She indicated that some of them were not necessarily professional calls but others were. She indicated that she was using her personal phone because they were not provided with office phones. 5. Cross‑examination then moved to the lease which the Respondent co‑signed with Patient A and referred to the fact that she stated in the application that they were in a de facto relationship and that she was selling her property. She indicated that it was correct that she signed but not that she was in a de facto relationship with Patient A. 6. Cross examination moved on to the conversation which Patient A had with Mr Bradley Pettitt of Mission Australia when Patient A informed Mr Pettitt that he was moving into a unit with 'someone'. He pointed out to the Respondent that he indicated that it was with "Leigh". The Respondent stated that that is not correct and she was not moving in with him. It was put to her that in late August or early September 2019 she was developing a close relationship with Patient A to which she said that she was just a friend and there was no relationship at that time. It was also put to her that at the time that she states that she was developing a close friendship she was still Patient A's case manager and she indicated that it was possibly yes. She was pressed and confirmed that she was developing a close friendship with him while she was his case manager. 7. Cross‑examination moved to questions regarding discussions that she had with a co‑worker, whose statement was included where [the co-worker] states that she was advised by the Respondent that she had a friendship with a person 'with benefits'. The Respondent denied having such a conversation with the co-worker and said that she did not have the type of relationship with that co-worker that she would have discussed this with her. It was put to the Respondent that she also told another co‑worker that she had a relationship with a person with benefits, again she denied this evidence. She was asked whether she agrees that it is not professional to have a personal relationship with a patient. She responded that she knows that it is not professional but stated that she had done more for Patient A psychologically than anyone by the relationship. 8. Cross‑examination moved to the assistance which the Respondent gave Patient A when he was seeking to recover his funds from his superannuation fund and she indicated that Patient A came to the service at a point when she was no longer his case manager but needed assistance and she was only trying to be helpful. 9. In her evidence, the Respondent had said that she had no idea that Patient A had moved from his caravan and was challenged on that as she certainly had knowledge of his move from the caravan, having signed a lease with him. It was put to her that that was a lie and she responded that she supposes that it was a lie. It was put to her that there was a pattern of lies on all aspects of the relationship to try and minimise her misconduct. In response she stated that she can only answer what she knows and that she would not admit something that she has not done. She stated that her decision-making at the time was a mistake, i.e. she did not have a relationship with Patient A until 2020. If she did have a friendship with him she should not have done so. 10. In principle, the Respondent was conveying the view that her decision-making was impaired at the time. She was asked whether she had taken any courses in dealing with professional boundaries since these incidents to which she responded that she had never been asked to do so. 11. Essentially, the cross-examination covered all of the allegations contained in the Complaint. 12. With no further cross‑examination, the Respondent's case was closed and the hearing was adjourned for submissions to be made by the Applicant and by the Respondent. APPLICANT'S SUBMISSIONS 1. The Applicant provided the Tribunal with closing submissions which are set out below: "INTRODUCTION Complaint … 3. The Complaint, in summary, comprises the following: i. Complaint One is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (National Law) (conduct significantly below reasonable standard), and is based on deficiencies identified in Patient A's clinical records. ii. Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct under ss 139B(1)(a) (conduct significantly below reasonable standard) and/or (l) (other improper or unethical conduct) of the National Law, and relates to breaches of professional boundaries in respect of Patient A. Particular 1 relates to conduct occurring when the Respondent was Patient A's case manager, particulars 2 and 3 relate to conduct occurring after the Respondent ceased being Patient A's case manager, but while he was still a client of the service, and particulars 4 to 8 relate to conduct occurring after Patient A was no longer a client of the service. iii. Complaint Three is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law (other improper or unethical conduct), by entering into an inappropriate close personal relationship with Patient A in or around October 2019 (particular 1) and between May and December 2020 entering into an inappropriate sexual relationship with Patient A, and marrying Patient A in January 2021 (particular 2). iv. Complaint Four is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law (other improper or unethical conduct) by knowingly providing false information to the Commission on 24 August 2020 in response to a notice under s 34A(1)(a) of the Health Care Complaints Act 1993 (NSW), by denying that she was or ever had been in an intimate personal relationship with Patient A. v. Complaint Five is that the respondent is guilty of professional misconduct under s 139E of the National Law based on the matters giving rise to complaints one to four, both individually and cumulatively. ... KEY PRINCIPLES Nature of the jurisdiction 6. A number of key principles govern proceedings in this jurisdiction: i. the proceedings are inquisitorial in nature; [1] ii. the fundamental purpose of proceedings is the health and safety of the public; [2] iii. proceedings are primarily protective, not punitive, in nature; [3] iv. however, in protecting the community the Tribunal must take into account the maintenance of the standards of the relevant profession and the preservation of public confidence in the that profession; [4] and v. deterrence is a relevant factor. [5] … THE RESPONDENT'S EVIDENCE 11. The Tribunal should find that the respondent was an unreliable witness, with a demonstrated propensity to lie when dealing with the matters which are the subject of complaint. The Tribunal would also accept the unchallenged evidence of the Commission's witnesses where it conflicts with the respondent's evidence. The respondent elected not to require any of the Commission's witnesses for cross-examination, and not to cross-examine Mr Shaw, the Commission's expert, in circumstances where the consequences of doing so were clearly explained to her in correspondence (Ex 3) and by the presiding Senior Member during the hearing. 12. In her Response, the respondent admitted Complaint Four that she knowingly provided false information to the Commission on 24 August 2020 when she denied ever having been in an intimate personal relationship with Patient A. The respondent also lied in her response on 1 June 2020 to the s 150 Committee, where she states that from September to 17 October 2019 she had had no contact with Patient A and "did not know that he was looking at moving from the caravan park as this was not the case…". 13. ln the same 1 June 2020 response, the respondent stated that "[p]rior to his discharge from the service as far as I was aware [Patient A] was still living at the caravan park". The Tribunal would find that this statement was also a lie in circumstances where she had signed a lease as co-tenant with Patient A, and reject the respondent's explanation in cross-examination to the effect that she was not sure that he had moved as she had not helped him move. That explanation is inherently implausible, and directly contradicted by the explanation that the respondent provided to Ms McManus when first questioned about the allegation that she was in a relationship with Patient A which records "Leigh reported she had helped [Patient A] move house and done that in her capacity as a mental health clinician". That same response is recorded in the record of interview with Ms McManus where Ms McManus said "[the respondent] indicated to me that she'd helped the client move into his new home … as part of her clinical role as a mental health case manager". 14. The respondent's unreliability as a witness is also evidenced by the Response, which contained numerous inaccuracies, as the respondent ultimately accepted when faced with contradictory evidence. Thus: i. while the respondent stated that she "truly believe[d]" Patient A was only under her care for "a couple of months" (Response [1.1]) she accepted in cross­ examination … that she became his case manager on 13 March 2019 and ceased being so on or around 16 September 2019, some six months; ii. while the respondent stated that she "did exchange phone calls with patient A after he was a client of mine... [h]owever I don't believe they crossed over" (Response [1.1]), the call charge summary records daily communications by voice call, text and/or MMS between the respondent's personal mobile phone number and Patient A's phone number from 3 September 2019 (with some contact before then dating from 20 March 2019) including some very late at night; iii. while, in response to an allegation that the respondent failed to record the fact and content of her calls with Patient A in Patient A's records, the respondent said "I believe I disclosed the information required during [sic] phone calls" (Response [1.3]), there is no record of these numerous communications in Patient A's clinical records. 15. The respondent also gave evidence that she did not remember signing a tenancy agreement as a co-tenant with Patient A until she was later presented with the document, in circumstances where she not only completed a tenancy application but provided identity documents and signed a lease several days later. That evidence is inherently implausible, and is either false or otherwise indicates the respondent is an unreliable witness. 16. Specific aspects of the respondent's evidence are dealt with in dealing with the substance of the complaints below. … COMPLAINT TWO Professional Boundaries 26. Complaint Two concerns alleged breaches of professional boundaries arising from the respondent's interactions with Patient A (and, in the case of particular 7, Patients A and B). As Mr Shaw observes at pages 3-5 of his report (which evidence was unchallenged and should be accepted) nurses are required to generate and maintain relationships with patients that are respectful, professional and therapeutic and maintain that basis after the therapeutic relationship ceases. That requirement is unaffected by the geographical setting in which the relationship arises or the differing care settings (inpatient or community based). … Patient A's vulnerability 27. While Complaint Two concerns various conduct amounting to a breach of professional boundaries, Complaint Three (dealt with below) concerns the alleged entry by the respondent into an inappropriate close personal, and then sexual, relationship with Patient A. An important contextual factor in determining Complaints Two and Three is Patient A's vulnerability as a client of the Service, and the respondent's role as Patient A's case manager until around 16 September 2019. 28. The triage entry made by the respondent dated 13 March 2019 (when she became Patient A's case manager) … notes that Patient A had self-referred for counselling as he was not coping very well due to family conflict and PTSD symptoms. A Mental Health review of Patient A was conducted by a registrar on 25 March 2019 …, where he was accompanied by a case manager and support worker from Mission Australia. Patient A's psychiatric history including complex and classical PTSD, panic disorder and a historical suicide attempt by hanging. It records an alcohol use disorder with dependence, with current medications including naltrexone and acamprosate (for treating alcohol dependence) and a stimulant use disorder in remission. It notes that Patient A had returned to drinking 4 to 5 cans of beer daily. The medical history included liver cirrhosis with 20% function, awaiting transplant. Patient A's personal history included childhood sexual abuse and difficulty with emotionally close relationships. The respondent ultimately accepted that she was aware of Patient A's psychiatric history while acting as his case manager. On 28 March 2019, the respondent conducted a drug and alcohol assessment for Patient A which noted, amongst other things, that he was homeless, his principal drug of concern was alcohol, his usual accommodation was a caravan, he was on a pension and living alone …. A mental health assessment of Patient A conducted by the respondent on 28 March 2019 … noted that his circumstances and supports were unstable. 29. While the respondent initially sought to downplay Patient A's vulnerability in cross­examination, she ultimately accepted that he was a vulnerable patient The records above indicate that he was extremely vulnerable, which exacerbated the risks associated with a treating practitioner breaching professional boundaries and forming an inappropriate relationship with him. Particulars of Complaint Two 30. The evidence in support of each Particular of Complaint Two is set out below. 31. As detailed below, Mr Shaw gives unchallenged evidence as to why each aspect of the conduct particularised amounted to a breach of professional boundaries, which the Tribunal would accept. 32. Mr Shaw also identifies the reasons why each particular involved conduct falling significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, which evidence the Tribunal would also accept. That said, as discussed at the conclusion of this section, it is ultimately not necessary for the Tribunal to find that each aspect of the conduct particularised, taken in isolation, as opposed to the totality of the proven conduct, would amount to a breach of the requisite standard to find this aspect of the complaint proven. Particular 1 33. Particular 1 of Complaint Two relates to conduct occurring between March 2019 and 16 September 2019 when the respondent was Patient A's case manager. Particulars 1a. and b. are that the respondent exchanged phone calls with Patient A using her personal mobile phone (a) and outside of office hours (b). Particular 1c. is that the respondent failed to record the fact and content of these calls in Patient A's records. As outlined at [15] above, while in her Response the respondent expressed a belief that her personal phone calls with Patient A did not occur while she was his case manager, this was contradicted by the call charge records …, as she accepted in cross-examination. … While the respondent claimed that she contacted all of her clients using her private mobile number (despite earlier accepting that she had a work mobile number – as set out in her email signature…), she ultimately accepted that there was no clinical reason why she would need to communicate with Patient A around midnight. The respondent also accepted in cross-examination (contrary to the position adopted in her Response) that these communications were not recorded in Patient A's clinical notes. 34. Given the timing, frequency and use of the respondent's personal mobile phone, the Tribunal would find that these communications were personal rather than professional communications. The respondent eventually accepted in cross-examination that she had developed a "close friendship" with the respondent and, based on the call charge summary, that this had occurred in late August and early September 2019 when she was still his case manager. 35. In her Response, the respondent admitted … that she attended Patient A's home address for hand-delivering prescriptions and an appointment card and did not document these attendances in his client records (Response [1.4]), attributing the failure to being "overloaded with work". The respondent previously admitted to these attendances in a response to the Commission (Ex 1 tab 33 questions 12-14). They are not recorded in Patient A's clinical notes (Ex 1 tab 14). The Tribunal should find the facts underlying Particular 1 proved. 36. The Tribunal would accept Mr Shaw's unchallenged expert opinion … that the communications recorded in the call charge summary and failure to record these in Patient A's notes reflected a failure to observe appropriate professional boundaries and was conduct that was significantly below the standard expected of a practitioner of an equivalent level of training or experience. The Tribunal would also find, based on the unchallenged evidence of Mr Shaw, that the making of home visits to Patient A to deliver prescriptions and appointment cards, and failure to record these, was conduct significantly below the standard expected of a practitioner of an equivalent level of training or experience. This conduct also demonstrates a failure to maintain clinical and professional transparency suggesting an attempt to develop over[-]familiarity, friendship or intimacy with a patient in breach of professional boundaries …. Particular 2 37. Particular 2 of Complaint Two relates to conduct occurring after the respondent ceased acting as Patient A's case manager but while he was still a client of the Service. 38. Particular 2 is that the respondent breached professional boundaries when, around 11 October 2019, she entered into a private lease agreement as a co-tenant with Patient A …, and in doing so declared that she was in a de facto relationship with Patient A (but did not disclose this to her employer). … In her Response, the respondent admitted signing a private lease agreement with Patient A but said her non-disclosure was "purely bad judgement", she was scared of possible repercussions, and she co-signed so that Patient A would be able to get the rental …. The respondent accepted in cross-examination that in making the tenancy application she sought to convey that she was in a de facto relationship with Patient A. 39. The Tribunal would reject the respondent's claim that she co-signed the tenancy agreement only to assist Patient A to obtain a lease as false. That explanation is inherently implausible when regard is had to the totality of the evidence …. 40. The tenancy agreement was signed by Patient A on 15 October 2019 and by the respondent on 16 October 2019. On 15 October 2019, Patient A visited the Mission Australia office and spoke with Mr Pettitt, his case manager. The note of that interaction records: [Patient A] called into MA office and informed me that he has a unit that he and another person is moving into tomorrow. I asked [Patient A] if this was OK with the person line of work. [Patient A] said because he was no longer on their case load and had moved to a new case worker all is OK. 41. … Given that Patient A had applied for a tenancy with the respondent, who co-signed the application and the lease (the following day), and Patient A had been moved to a new case worker … on 16 September 2019, the Tribunal can be comfortably satisfied that Patient A's communication with Mr Pettit was accurately recorded, and reflected Patient A and the respondent's plans at that point in time. … 44. The Tribunal would be comfortably satisfied that Patient A's disclosures to Mr Pettitt accurately reflected his and the respondent's evolving intentions and beliefs as to their ability to pursue their relationship and move in together: first, that it was permissible provided that the respondent was no longer her case manager and then (after the allegation was put to the respondent) that it would be acceptable to pursue once several months had elapsed after Patient A had exited the Service and the Mission Australia service (which he promptly did). … 46. The Tribunal would accept Mr Shaw's unchallenged evidence that by entering into a lease agreement with Patient A the respondent had drifted from a professional relationship to an increasingly personal one, with entry into a lease agreement involving financial and legal decisions reflecting an intent to enter a more intimate relationship. As Mr Shaw opines, this action was "highly inappropriate and reflects indisputable evidence that [the respondent] has lost sight of her responsibilities regarding maintenance of professional boundaries and reporting this where these were in jeopardy". The Tribunal would accept Mr Shaw's evidence that this conduct was significantly below the standard expected of a practitioner of an equivalent level of training or experience. … 48. The Tribunal would also accept Mr Shaw's evidence that the respondent's entry into a relationship with Patient A, which she described as a de facto one, was contrary to the maintenance of professional boundaries in ensuring relationships were for therapeutic purposes only. Entering into the relationship was also highly inappropriate, and fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. Particulars 3, 5 to 8 49. Particulars 3 and 5 to 8 involve particular incidents of social contact between the respondent and Patient A (and, in the case of particular 7, Patient B) occurring between 24 October 2019 and 15 February 2020. Those incidents must be viewed in the light of the matters supporting particulars 1 and 2, namely the frequent undocumented telecommunications between Patient A and the respondent while Patient A was under the respondent's care, and the entry into a lease and declaration of a de facto relationship made on 11 October 2019. 50. Particular 3 relates to a social meeting with Patient A … on 24 October 2019. In her Response … the respondent stated that she was with a co-worker when Patient A saw them from across the road and came over to say hello, and "I can clearly see how this would breach professional boundaries". … Mr Shaw's opinion (Ex 1 Tab 43 pp 15-16) is to the effect that this interaction involved a failure to maintain a professional and therapeutic relationship rather than developing over-familiarity, friendship or intimacy during and after being under the practitioner's care. This, along with the failure to report and disclose the interaction, amounted to conduct that was significantly below the requisite standard. 51. Particular 5 is that around 18 January 2020 the respondent attended the property … (which she had leased with Patient A) with the respondent's daughter, to spend time with Patient A in breach of professional boundaries. The respondent denies this allegation. [The graduate nurse's] evidence is that on 18 January 2020 he visited the …property where Patient A and the respondent were present, during which the respondent and Patient A discussed their intention to wed in May 2020. The respondent's youngest daughter was also present. The respondent described intermittently staying between her house … and Patient A's house, which had been occurring for a couple of weeks. While there, Patient B (a client of the Service and of the respondent) arrived causing [the graduate nurse] to leave. The Tribunal would accept [the graduate nurse's] evidence, which was unchallenged. That evidence is also consistent with the intention expressed by Patient A to Mr Pettitt in late October 2019 to the effect that in three months he and the respondent would be ''able to do whatever". Mr Shaw gives evidence to the effect that … this incident reflected a breach of professional boundaries by the respondent and was conduct significantly below the requisite standard. 52. Particular 6 is that on 10 February 2020, the respondent contacted Patient A for assistance when she was involved in a minor car accident, in breach of professional boundaries. The respondent admits this allegation, stating "I called on him as my friend to have a look at my car yes" (Response [2.6]). In earlier responses to the Commission, the respondent stated that she called Patient A to come and look at her car as she was unsure if it was safe to drive …. While unaware that he intended to do so, Patient A brought his friend who she was case managing at the time (Patient B). Mr Shaw gives evidence to the effect that this incident involved a breach of professional boundaries and was conduct significantly below the requisite standard. It is, in Mr Shaw's opinion, highly inappropriate to make a current or former patient the first person of contact in an urgent or emergency situation … 53. Particular 7 is that on 14 February 2020, the respondent invited Patient A and Patient B to her residential property … to socialise in breach of professional boundaries. In her response to this allegation the respondent states "yes if that's what the evidence states". [The child psychologist] gave evidence that on 14 February 2020 she and [the graduate nurse] attended the respondent's home to collect a fridge, where Patient A and Patient B were present. Patient B was sitting out the back having a cigarette. [The graduate nurse] informed [the child psychologist] that Patient B was a current patient case managed by the respondent, which she later confirmed by checking the Service's records. [The child psychologist] states that she felt ill to have been placed in such a situation. The Tribunal would accept [the child psychologist's] evidence, which was unchallenged. 54. Particular 8 is that around 15 February 2020, the respondent attended the property … which she had leased with Patient A, in breach of professional boundaries. In her Response the respondent states "[Patient A] was no longer a client of the service, I won't deny we developed a friendship". [The child psychologist] gave evidence that on 15 February 2020 she and [the graduate nurse] visited Patient A's unit to collect a dog, where the respondent was present having spent the night …. [The graduate nurse] also gives evidence that he and [the child psychologist] stopped at Patient A's residence where the respondent was present - placing the date as approximately 17 February 2020. Mr Shaw gives evidence that this incident further contributes to a longitudinal picture of boundary violations of cohabitation and intimacy, and was conduct falling significantly below the requisite standard. Particular 4 55. Particular 4 is that on 4 and 6 November 2019, the respondent inappropriately sent an email to Patient A's superannuation fund from her work email address to arrange for the withdrawal of $12,000 purporting to be or act on behalf of Patient A, in breach of professional boundaries. In her Response the respondent accepts that this occurred but gives an explanation that she was working on reception and was simply assisting Patient A with the form, and emailed it when they were unable to fax the document. … Notably, the respondent put her own personal email address down as the email contact for Patient A. In her response to a s 34A notice issued by the Commission, 'the respondent stated that she did not realise that she had included her personal email address, could provide no rationale for doing so except to apologise as it was "definitely not appropriate" and she should have double-checked it was completed correctly. 56. The Tribunal would reject the respondent's explanation of her involvement as a spontaneous act of assistance, and the provision of her own email address as an inexplicable error, as inherently implausible and untrue. … Mr Shaw gives evidence that this conduct was blatantly inappropriate, demonstrated a blurring of professional boundaries, a disregard for the NSW Health Code of Conduct and a disregard for honesty and transparency when engaging with financial institutions. His evidence is to the effect that this conduct was a breach of professional boundaries, and fell significantly below the requisite standard. Unsatisfactory professional conduct 57. The matters particularised in Complaint Two (or such of them as are found proven) demonstrate a course of conduct by the respondent in her interactions with Patient A that breached professional boundaries in a way that, taken together, fell significantly below the requisite standard, and was improper and unethical. … 59. The Tribunal should find Complaint Two established. COMPLAINT THREE 60. Complaint Three is that the respondent is guilty of unsatisfactory professional conduct under s 139(1)(l) of the National Law by engaging in improper or unethical conduct relating to the practice or purported practice of nursing. The particulars to the complaint … are that in or around October 2019 the respondent entered into an inappropriate close personal relationship with Patient A, and between May 2020 and December 2020 the respondent entered into an inappropriate sexual relationship with Patient A, and married Patient A in January 2021. … 62. The Tribunal would reject the' respondent's attempt to place the formation of her relationship with Patient A at a point in time after he was discharged from her care. As outlined above in dealing with Complaint Two, the respondent ultimately accepted in cross-examination that she had developed what she described as a "close friendship" with Patient A while she was still his case manager, based on call charge records showing frequent communications at all times of day and night from late August 2019. … 64. The Tribunal would find particular 10 of Complaint Three [that the respondent entered into the relationship with Patient A] established, based on the respondent's admission in the Response. That admission is consistent with the independent evidence that supports a finding that by May 2020 (at the latest), when they intended to be married, Patient A and the respondent were in a sexual relationship. Indeed, the Tribunal would be comfortably satisfied that a sexual relationship began sooner. As outlined above Patient A and the respondent intended to move in together in October 2019 and held themselves out as a de facto couple. The respondent told [the child psychologist] in October or November 2019, and [the graduate nurse] in December 2019, that she had a "friend with benefits", a reference to Patient A. By January 2020, the respondent and Patient A were discussing plans to get married …. It is common ground that Patient A and the respondent married in January 2021. 65. The Tribunal would find that the entry by the respondent into an inappropriate close personal, and later sexual, relationship with Patient A was both improper and unethical. As outlined above, the close personal relationship began when the respondent was the case manager of Patient A, a vulnerable client of the Service. … 66. It also amounts to a breach of Principle 4.1 of the Nurses Code of Conduct …. 67. The improper and unethical nature of the respondent's conduct is not altered by her subsequent marriage to Patient A (as Mr Shaw confirmed in oral evidence). 68. The Tribunal should find Complaint Three established. COMPLAINT FOUR 69. Complaint Four is that the respondent is guilty of unsatisfactory professional conduct because she engaged in improper or unethical conduct in relation to the practice or purported practice of nursing by providing false information to the Commission on 24 August 2020 in response to a notice under s 34A(1)(a) of the Health Care Complaints Act 1993 in stating "I have not now or ever been in an intimate personal relationship with [Patient A]. But I do consider him a good friend" when the practitioner knew this to be untrue and was in fact in an inappropriate close personal relationship with Patient A at the time. 70. The respondent admits this complaint. 71. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities: HCCC v Chowdhury [2015] NSWCATOD 65 at [81]. The knowing provision of false and misleading information to the Commission in the course of responding to a complaint is both inherently improper and unethical. 72. The Tribunal should find Complaint Four established. COMPLAINT FIVE 73. Complaint Five is that the respondent is guilty of professional misconduct under s 139E of the National Law in that she has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation practitioner's registration. The complaint is based on the conduct founding complaints one to four relied on both individually and cumulatively. … 75. The conduct which forms the basis of complaints one, two, three and four, individually and cumulatively, involve such a significant departure from the proper standards expected of a nursing professional, and would reasonably be regarded as disgraceful or dishonourable, as to amount to professional misconduct… 76. The Tribunal should find that the misconduct was sufficiently serious to warrant suspension or cancellation of the respondent's registration, and find Complaint Five established. PROTECTIVE ORDERS 77. If the Tribunal finds the Complaints proved, the Tribunal may exercise its powers to make protective orders under s 149A-149C of the National Law: s 149 National Law. If the Tribunal is satisfied that the respondent is guilty of professional misconduct, it may suspend or cancel her registration: s 149C(1)(b) National Law. 78. For the reasons outlined below, the Commission submits that the appropriate protective orders are: i. cancellation of the respondent's registration (s 149C(1)(b) National Law): ii. an order that an application for review under Division 8 of the National Law may not be made for a period of two to three years (s 149C(7) National Law); iii. an order prohibiting the respondent from providing any health services for the same period as any non-review period imposed (s 149C(5) National Law); and iv. an order for costs as assessed or agreed. … The protective orders sought by the Commission should be made 82. The Tribunal should make the protective orders sought by the Commission for the following reasons. 83. First, the misconduct cannot be satisfactorily explained as an isolated episode involving an error of judgment rather than demonstrating a defect of character. It involved the repeated and calculated breach of professional boundaries in the formation of a personal and sexual relationship with a vulnerable patient (and former patient), followed by denials as [to] the nature of the respondent's relationship with Patient A including by knowingly giving false information to the Commission. 84. Secondly, the respondent's misconduct was intrinsically serious for the reasons outlined at [par 74] above. 85. Thirdly, the Tribunal would not be satisfied that the respondent has developed or made any real effort to develop, insight into her misconduct Demonstration of insight into the wrongful nature of the conduct, or contrition for the wrongful conduct, will generally be relevant to appropriate protective orders. However, as discussed by Leeming JA in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [11]-[13], while contrition is an influential factor in determining what orders are appropriate, its absence cannot always be relied upon to validate a higher penalty. 86. When asked if she accepted it was a breach of professional boundaries to enter into a close personal and then sexual relationship with a vulnerable former patient the respondent answered "yes and no". The respondent then sought to explain that she viewed the relationship as beneficial to Patient A because she had assisted him to access various mental and physical health services. The respondent's answers would give the Tribunal no confidence that she was capable of delineating the boundary between her work as a professional and as a friend or partner. When asked to explain the importance of establishing professional boundaries with patients, the respondent said "so you don't get mixed up and end up where I am now." She also sought to explain her misconduct by reference to an excessive caseload' which rendered her vulnerable. The respondent's answers to questions from the Panel similarly did not demonstrate a proper appreciation of the role of professional boundaries. In particular, the respondent did not demonstrate any appreciation for the power imbalance inherent in a relationship between a health professional and their patient, which renders patients vulnerable and underscores the importance of establishing and maintaining professional boundaries, exacerbated in the case of a vulnerable patient in a mental health setting. When asked if she had undertaken any training in relation to professional boundaries, the respondent first stated that she not been asked to do so, before claiming that she had. There is no evidence that the respondent has undertaken such training, and her responses suggest that if she has it has not enabled her to develop an adequate understanding of professional boundaries. 87. Fourthly, the protection of the health and safety of the public requires the denouncement of such serious breaches of professional boundaries in order to deter similar conduct and maintain public confidence in the profession. That need arises whether or not there is evidence that the relationship formed between the respondent and Patient A involved any direct exploitation of Patient A, which is a matter for speculation. The need for general deterrence is also heightened given the potential difficulty in detecting misconduct of this nature – evidenced by the fact that the present complaints only came to the attention of regulatory authorities due to a chance disclosure by Patient A to a separate care provider, Mission Australia, who (unlike the respondent) immediately recognised the serious breach of professional boundaries involved. COSTS 88. The Commission seeks its costs, as assessed or agreed. 89. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event. [6] The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party. [7] There has been no such conduct here and the Commission should be awarded its costs." RESPONDENT'S SUBMISSIONS 1. The Tribunal was concerned that the Respondent was unrepresented and explained in detail to the Respondent at the close of the hearing that it was important for her to address each submission by the Applicant. 2. The Respondent nevertheless addressed only the proposed orders and none of the substantive issues. She stated the following: "I don't feel that cancellation of my registration is appropriate or fair. I admit that I breached the nurses professional conduct by my actions in this matter, however due to [the] extenuating circumstances and of my situation from March 2019 to December 2019 I feel that my decision making was impaired. In 2020 when the [C]ommission initially investigated and determined that I had acted unprofessionally they sent through protective orders and those were that I was to have remote supervision monthly with a supervisor of my choice as I was not deemed a risk to the community. So for the past 3 years I have done that diligently. Now after 3 years of working with people as a registered nurse they are saying now we feel she is a risk to the community and her punishment should be this loss of registration. I don't feel this is fair or just and why has it taken 3 years to finally reach this conclusion. I know what the profession [sic] code of conduct is, I have worked as a nurse for over 20 years and I have not once prior to this incident or since done anything to harm any member of the community nor my nursing profession. I realise that my friendship then relationship with patient A is a breach of this conduct and although I am unable to verbalise why I can tell you that I put patient A at risk of relapse, that in forming a friendship then relationship with him has left him vulnerable, and I'm so sorry for that. As for payment of the [Commission's] costs I don't feel that is fair either as this has been a three year process that I will not be able to pay, as if I lose my registration I lose the ability to provide for my family. Finally I would just like to say that this has been the worst experience of my career of which I'm very proud of. I have been scared and anxious throughout this 3 year process, and the day of the hearing was what I hope is the end of being scared and anxious, to enjoy what time I have left with patient A who is my husband. I would like to thank the tribunal members for their patience and understanding at the hearing you made the process less humiliating and I appreciate that." APPLICANT'S SUBMISSIONS IN REPLY 1. The Applicant advised the Tribunal that it had no intention of filing submissions in reply. DECISION AND REASONS 1. The Tribunal having read the evidence contained in all of the exhibits provided to the Tribunal, having heard the evidence presented by the Applicant and the evidence given by the Respondent, having reviewed the various additional documents which were tendered and having considered the submissions made by the Applicant and the Respondent, the Tribunal is satisfied that the complaint made by the Applicant against the Respondent as set out in the Complaint is proven and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. Again, the Tribunal was extremely concerned that the Respondent was unrepresented and while the Tribunal was unable to assist the Respondent in preparation of her defence, the Tribunal explained at great length to the Respondent the need to consider the evidence provided by the Applicant and where the Respondent did not agree with the evidence presented by the Applicant, it would be important for her to cross‑examine those witnesses and record her version to enable them to comment upon it. Unfortunately, the Respondent did not call for any of the Applicant's witnesses to be made available for cross‑examination and accordingly the evidence of the Applicant's witnesses remained unchallenged. 3. The basis on which the Tribunal has come to this conclusion is that all the evidence presented by the Applicant whether of witnesses to various meetings, discussions or circumstances as well as the investigation report and the report of Mr Shaw, remained unchallenged. The Applicant made extensive submissions about the evidence and what the Tribunal should or should not accept as evidence against the Respondent which proved the complaints against the Respondent. The Tribunal was extremely concerned about the various explanations which the Respondent gave to the allegations, some of which she initially denied before the Council and admitted later, some of which she remained adamantly against the evidence and had not utilised an opportunity to challenge those witnesses in cross‑examination. That makes it extremely difficult for the Tribunal as the Tribunal is faced with factual evidence and opinions by the investigator and Mr Shaw, the expert, all of which comments, evidence and views are both reasonable and should be accepted by the Tribunal. When the evidence presented by the Applicant is weighed up against the evidence given by the Respondent, the Tribunal is comfortably satisfied that the evidence of the Respondent should be rejected and the evidence of the Applicant should be accepted. 4. The Tribunal came to the view that large sections of the Respondent's evidence were implausible and much of it was self‑serving and using blame to seek to exonerate her from responsibility for her behaviour. Examples of that include explanations for telephone calls from the Respondent to Patient A at all hours of the day and night including around midnight and 5.00 am in the morning. It was clear to the Tribunal that such calls were most unlikely to have been calls of a professional nature. 5. In addition, the fact that a text message was sent using the mobile telephone of Patient A when that number was given by the Respondent to the Council and then subsequently she denied that she knew the Respondent's telephone number. That is completely implausible. 6. Further, the Respondent suggested that she did not know where Patient A was living after she had signed a lease agreement as joint lessee on a property to which the Respondent had moved and given her relationship as de facto. Therefore, for the Respondent to deny that she knew where Patient A was living and to deny that she was in a de facto relationship with Patient A at the time is clearly an indication that there was a relationship with Patient A at that time and the Respondent in denying that was seeking to protect her position. On balance, the Tribunal came to the conclusion that much of the Respondent's defence was self‑serving and unacceptable to the Tribunal. 7. The Tribunal is comfortably satisfied that the Applicant has proven that the Respondent is guilty of unsatisfactory professional conduct in multiple circumstances and also guilty of professional misconduct. 8. The Tribunal was also considerably concerned about a response to cross‑examination by the Respondent when she was being challenged on how much damage she could have caused to Patient A through entering into a personal relationship when she had a professional relationship with him. One of her answers was that she "had done more for Patient A psychologically than anyone else had done" which was demonstrative of a serious lack of insight by the Respondent into her boundary violation with Patient A when she was his treating professional and shortly after she was his treating professional and when she later married him. 9. In coming to its conclusion, the Tribunal is fully aware and agrees with the submissions of the Applicant as to the purpose and role of the Tribunal in complaints of this nature against a practitioner and is aware that its obligation is to ensure the safety of the public while at the same time also protecting the good name of the profession. 10. In addition, the Tribunal has regard to the fact that its role is protective and not punitive, but should also operate as a deterrent for other members of the profession. 11. That said, the Tribunal had difficulty with the fact that there is no arbitrary timeline for when it is acceptable to form a relationship and marry a patient. There are many factors to consider such as the length of time the patient was managed by the nurse, the type of treatment, as some involved psychological care and have an elevated risk of abuse that such treatment presented. In this instance, however, it appears that there is not a clear break from when the Respondent nursed Patient A and the commencement of a relationship. Given the nature of Patient A's illness, a short break between the nurse and starting a relationship could still be classed as abuse as there would still be a perceived imbalance of power between the Respondent as the rescuer and patient as the victim. 12. While the Tribunal formed a view that the Respondent did not set out to intentionally form an intimate relationship with Patient A, her total disregard for the Nursing and Midwifery Board of Australia's Code of Conduct for Nurses ("Code of Conduct") and how that applied to her showed that she believed the rules did not apply to her in this instance. There is a process which is expected of any nurse in the event that feelings are starting to form or that a relationship is developing between the nurse and the patient. The nurse should seek advice from a number of places, for example, managers, EAP, NaMO Helpline, to name a few. The Respondent chose to do none of these things and in fact went to great lengths to disguise and hide what she was doing. 13. The Tribunal also had regard to the evidence from the Respondent that at the time of the development of a relationship between her and Patient A she was under extreme stress. The stress which she was under included a severe overload of work in the working environment, the fact that her daughter had been diagnosed with cancer and was needing treatment and support and the fact that she has a second daughter who is on the autism spectrum and is very difficult to deal with. 14. In determining what are appropriate orders to be made in the particular instance, the Tribunal has sought to balance the clearly errant behaviour of the Respondent and what is clearly an element of lack of insight with the protection of the public, and to decide whether deregistration is the only way to protect the public and to send an appropriate message to the profession that behaviour such as the Respondent's behaviour is unacceptable. The Tribunal sought to examine the possibility of the imposition of conditions on the Respondent's registration if it was determined that conditions could have the effect of protecting the public and sending a message to the profession of the type of conditions that would be imposed on anybody where the circumstances were sufficiently similar to the circumstances in this matter. 15. Unfortunately, in summary, the Tribunal having determined that: 1. the Respondent demonstrated no sign of remorse for any harm she may have caused the patient or staff working in her team with the patient, and the dilemma she put them in, in fact it could be said that she believed the opposite was true when she stated that she was the one providing the "better" care of the patient; 2. she was unable to reflect on her practice behaviours and relationships that would impact her practice. The ability to reflect on one's practice is crucial to nursing care and informs critical thinking skills. Reflection on one's practice allows a practitioner to look at transference and counter‑transference issues which always come into play when in a therapeutic relationship; 3. the Respondent stated that she knew the Code of Conduct but knowing it and acting on it are clearly two different things. The Respondent clearly was not abiding by the Code of Conduct that she knew and which existed; 4. the Respondent showed no understanding of what a therapeutic relationship is and did not understand what it means to cross the boundary. It was evident that she felt that not having sex with a patient meant that she was still having a therapeutic relationship. It is clear that she did not understand the balance of power she has as a nurse, saying that she did and giving a description of what it means. This did not follow through to her practice. 1. The Tribunal, however, also had regard to the fact that the events leading to this complaint occurred in 2018, and from 2018 to now the Respondent has been working as a nurse in an aged care facility and there has been no evidence to suggest that there has been any problem with the Respondent in her dealing with patients in the aged care facility. The Tribunal, therefore, has to take into account that the Respondent appears to have been able to work as a registered nurse for a period of approximately four years without any breach of her duties. 2. On balance, despite the comments made in [48] above, the Tribunal came to the conclusion that, in all the circumstances referred to above, the only appropriate order is deregistration of the Respondent for a period of time to enable her to address all of the issues raised in the reasons for decision and to ensure that before she applies for reregistration she should have undertaken skills and ethical training to enable her to present as a person ready to be reregistered as a nurse. In particular, the Respondent should ensure that she has undertaken courses in ethical behaviour and therapeutic relationships, particularly in mental health nursing, and should seek out some independent reflective training with an independent expert in that field. ORDERS 1. The Tribunal makes the following orders. 1. The Respondent's registration is cancelled pursuant to National Law, s 149C(1)(b). 2. An application for review under Division 8 of the National Law may not be made for a period of two years. 3. The Respondent is prohibited from providing any health services for the same period as the non‑review period imposed pursuant to National Law, s 149C(5). 4. The Respondent is to pay the costs of the Applicant as assessed or agreed. ********** Endnotes 1. Health Practitioner Regulation National Law (NSW) ("National Law", ss 165(2) 165C, 165H, 165I, 165J, 165M; Sch 5D, cll 11-13; Weinstein v Medical Practitioners Board (2008) 21 VR 29 at [30]. 2. National Law, ss 3, 3A; Health Care Complaints Commission v Dr DWF [2019] NSWCATOD 78 at [70]. 3. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186. 4. Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. 5. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. 6. Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. 7. Oshlack v Richmond River Council (1998) 193 CLR 72 at [40]; [1998] HCA 11. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2023