Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Reyes [2023] NSWCATOD 57 Hearing dates: 23 February 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member J O'Baugh, Senior Member I McQualter, Senior Member C Gardiner, General Member Decision: 1. The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW). 2. The respondent is not guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW). 3. The applicant is to provide submissions on costs to the Tribunal and the respondent within two weeks, with the respondent responding within a further two weeks. The applicant may reply if necessary within a further week. 4. In the first instance, these reasons are to be published to the parties only, and not on NSW Caselaw. This is to allow the respondent the opportunity to seek a non-publication order in relation to par [11]. If he wishes the Tribunal to redact that paragraph, he should provide submissions to the Tribunal within seven days of publication of the reasons to him. The applicant may respond within a further seven days. 5. An order pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or disclosure of the contents of par [11] of these reasons. Catchwords: OCCUPATIONS – nurses – misconduct and discipline – unsatisfactory professional conduct - professional misconduct – appropriate protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 3, 3A, 3B, 5, 139B, 139E, 149A, 149C Cases Cited: Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Ly [2010] NSWMT 20 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 New South Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Alvin Mascarenas Reyes (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (no appearance) File Number(s): 2022/00253018 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or disclosure of the names of Patient A and Person B listed in the Schedule to the Applicant's Complaint is prohibited. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the contents of the paragraphs in these Reasons marked '[NOT FOR PUBLICATION]' are not to be published other than to the parties. REASONS FOR DECISION Introduction 1. These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (Commission) against the respondent Mr Alvin Reyes (practitioner). 2. By an Application for Disciplinary Findings and Orders filed 25 August 2022, the Commission seeks orders that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct, and protective orders under ss 149A and 149C of the Health Practitioner Regulation National Law (NSW) (National Law). 3. The matter was conducted as a combined Stage 1 and 2 proceeding on 23 February 2023. 4. For the following reasons we find that: 1. the practitioner is guilty of unsatisfactory professional conduct; 2. the practitioner is not guilty of professional misconduct. The practitioner 1. We note at the outset that the practitioner did not attend the hearing. 2. Prior to the hearing, the practitioner's legal representative, Ms Toose, a Legal Officer with the New South Wales Nurses and Midwives' Association wrote to the Tribunal on 15 February 2023 informing it that the practitioner would not be appearing at the hearing and that she had been instructed not to appear. 3. Following the receipt of that communication, the Tribunal issued the following direction on 16 February 2023 for the reasons set out below: Direction 1. Given the letter from the respondent's legal representative to the Tribunal dated 15 February 2023, the applicant is to advise the Tribunal of its estimate of the length of the hearing required next week. Reasons The Tribunal has received correspondence from the respondent's legal representative dated 15 February 2023, indicating that the respondent will not be attending the hearing currently set down for 23 and 24 February 2023, and that he has instructed his legal representative not to attend the hearing. The Tribunal encourages the respondent to attend the hearing. The applicant may ask the Tribunal to draw inferences from his absence: see Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [42] – [50]; Lucire v Health Care Complaints Commission … [2011] NSWCA 99 at [124] – [141]; NSW Bar Association v Meakes [2006] NSWCA 340 at [70] – [78]. If the respondent so wished, arrangement could be made for him to attend by AVL link. If the respondent changes his mind and wishes to attend the hearing, he should inform the Registry as quickly as possible. … 1. In addition to that, the Commission wrote to Ms Toose on 22 February 2023 stating that the Commission would be submitting that it is open to the Tribunal to draw negative inferences against the practitioner by his failure to attend the hearing, and that little weight can be placed on his Reflection in circumstances where he is not available for cross-examination. 2. All this to say, we proceeded with the hearing in the absence of the practitioner, satisfied that he had received notice of the hearing. 3. We further note that on 21 February 2023, Ms Toose sent to the Tribunal a copy of a letter dated 17 February 2023 from the practitioner's treating psychologist Dr Martha Knox-Haly. Ms Toose explained that the letter was provided in support of the reasons stated in the practitioner's reflection for not attending the hearing. For the reasons stated in her letter, Dr Knox-Haly states that the practitioner's appearance at the hearing would exacerbate symptoms of the practitioner's psychological disorder. 4. [NOT FOR PUBLICATION] 5. The practitioner had, however, on 19 January 2023 filed one volume of materials which included his Reply to the Disciplinary Findings, his "Response to Complaint and Reflection", his curriculum vitae, educational records, and five references. 6. With the agreement of the Commission, we have taken those materials into account in these reasons. Complaint 1. By Complaint filed on 25 August 2022, the Commission makes two complaints. 2. The background to both complaints is that: The practitioner was first registered as a nurse in 2008. The practitioner holds a Bachelor of Science in Nursing obtained from Our Lady of Fatima University in the Philippines in 2005. Between November 2008 and August 2015 the practitioner was employed as a Staff Nurse at the Sydney Children's Hospital ('SCH') on the Adolescent Ward. Between August 2015 and 6 January 2021 the practitioner was employed as a Staff Nurse at the SCH on the Adolescent Mental Health Unit ('Saunders Unit'). On 6 January 2021 the practitioner was terminated from his employment at SCH. Person B was the Nurse Unit Manager of the Saunders Unit during the relevant time. Patient A … was transferred from St George Hospital and admitted to the Saunders Unit on 3 July 2020 for suicidal ideation and self-harm. Patient A was discharged on 27 July 2020. Patient A was previously admitted to the Saunders Unit between 7 June 2020 and 24 June 2020. Additional background 1. In addition to that background, we note that on 28 July 2020 the practitioner received a written notification there had been "child-related allegations/concerns" raised in relation to his conduct at work, and that the Sydney Children's Hospital (SCH) had formed the view these allegations were serious enough to warrant suspending the practitioner with pay until its investigation was completed. 2. On 13 August 2020, the SCH gave the practitioner written notification of the particulars of the allegations, and sought the practitioner's response. In summary the allegations and particulars were as follows. Allegation 1 1. Allegation 1 was that on 9 July 2020 the practitioner reported to Ms Hayley Fisher, Team Leader and registered nurse (RN), that he would be taking Patient A into the seclusion room for the purpose of providing a low stimulus environment. It is alleged that the practitioner engaged in conduct which was inappropriate and unprofessional during the period from 2pm to 8pm in that the practitioner: 1. spent the time alone with Patient A in the seclusion room without seeking alternative options for other rooms; 2. allowed Patient A to have a visitor (being Patient A's mother) and eat a meal in the seclusion room which is not in line with the practice and procedure of SCH Psychological Medicine; 3. allowed Patient A to have a personal electronic device with him outside of allocated times without the Medical Officer's approval; 4. "airdropped" a presentation he was preparing to present to the SCH Consultation Liaison team to Patient A and asked Patient A to edit this confidential work document, which included the NSW Health logo and the full names of SCH staff, without their consent. Allegation 2 1. Allegation 2 was that on 13 July 2020, the practitioner met with Person B, the Nursing Unit Manager (NUM), as he had concerns that he had become over-involved with Patient A. At that meeting, Person B advised the practitioner that he was no longer to be allocated to care for Patient A. It is alleged following this disclosure that the practitioner engaged in inappropriate and unprofessional behaviour in that, on that day at 5.40pm, he failed to communicate to his colleague Ms Fisher that he could not cover her break and care for Patient A because of his disclosure to Person B. Allegation 3 1. Allegation 3 was in the following terms: On 13 July 2020 between approximately 5 40pm to 6 40pm, it is alleged you engaged in inappropriate and unprofessional behaviour when you were alone with [Patient A] in his bedroom. You closed the bedroom door and allegedly placed your hands on [Patient A] without consent from [Patient A] which included holding his head and shoulders in front of the mirror even though [Patient A] appeared unwilling and was struggling to be released from your grasp. It was reported you placed your hands on [Patient A's] shoulders, upper back, head and neck as well as your hands moving up and down, shaking and pressing areas on [Patient A's] shoulders which appeared as massaging while the lighting was dim in the bedroom. Allegation 4 1. Allegation 4 was in the following terms: On 14 July 2020 Ms Catherine Cruz, Network Nurse Manager Mental Health called you and offered you an overtime shift to cover an identified vacancy as a Mental Health Clinical Nurse Consultant (MHCNC). You declined the MHCNC shift but offered your availability to do a clinical shift on the ward specialling a patient. Ms Hayley Fisher, Registered Nurse was contacted and agreed to do the MHCNC shift if you wanted to do her shift to which you agreed. At approximately 1.20pm you presented on duty. [Person B] (NUM) advised you came into her office prior to the commencement of your shift to retrieve the patient allocation book. [Person B] was at the time engaged in a virtual meeting online. Following the meeting, [Person B] went to the ward and noticed you were allocated and caring for [Patient A] as his specialling nurse. [Person B] requested to see you and the Team Leader, Ms Helen Spiliopoulos, to discuss the allocation. [Person B] advised you that it was an inappropriate allocation given the conversation she had with you on Monday, 13 July 2020. It is alleged you stated 'would you prefer to put the other nurses at risk by looking after [Patient A]?' [Person B] responded she was not putting any nurses at risk. [Person B] advised she would reallocate the most appropriate nurse to care for [Patient A]. It is alleged you stated 'I don't even have to be here I will just go home'. [Person B] agreed and you left the unit. It is alleged you engaged in inappropriate and unprofessional behaviour in that: a. You failed to communicate to the Team Leader, Ms Helen Spiliopoulos that your patient allocation needed to be reallocated to another team member due to your disclosure to [Person B] regarding [Patient A]. b. You declined the offer made by Team Leader, Ms Helen Spiliopoulos, to swap with her and be in-charge of the shift and for Ms Spiliopoulos to be allocated [Patient A]. 1. The practitioner made a detailed 10 page response to the allegation. A summary of his response is as follows. 2. In relation to allegation 1, the practitioner stated: a. Patient EP (history of head-banging, with a helmet plan in place) was in the lounge room when [Patient A] started head banging outside his bedroom (room 3). EP was significantly distressed every time the staff had to enforce the helmet plan, and I believe that witnessing other patients head-banging also causes her the same level of distress. To protect EP from witnessing and hearing another patient head-banging, and to protect [Patient A]'s privacy at a time of severe distress, I deemed it was best to utilise the Seclusion room to provide [Patient A] with a safe space. The acoustics of the ward limits the areas where someone can head-bang without others hearing it. The only other room in the Unit that I could think of at the time was the School room, but made the clinical decision to opt for the Seclusion room instead as the School room had cords and other implements that could be used to self-harm. That day, I was allocated to look after [Patient A] on a 1:1 special so I was with him the whole time. b. [Patient A] had been refusing visits with his parents. I spoke to him about the possibility of conducting the visit that evening. I deemed it was best to do it in the Seclusion room as he was settled at the time that we were there. [Patient A] agreed. He had a good visit with his mother, who brought him McDonald's. The usual procedure for when parents come in with food from the outside is to set them up in a meeting room outside the main patient area. However, I did not feel safe to facilitate this usual practice at that time because this was his first visit since [Patient A] started escalating earlier in the week. It seemed more appropriate to conduct the visit in the Seclusion room as I was not certain how [Patient A] would react. After the visit, I brought [Patient A] back in the lounge room and he started interacting with his co-patients. His mother requested to speak to me and so I handed over care of [Patient A] while I was outside and spoke to her. I explained to her why I nursed [Patient A] in the Seclusion room and the discussions that we had. We also talked about her accessing help, including parent-teaching tools that were available to her, to which she was grateful. c-d. When we came inside the Seclusion room … At that stage, he was no longer self-harming - an improvement as compared to when he was banging his head against the door of his bedroom. The Seclusion room door remained open for the entire time that we utilised it, and Hayley Fisher RN, Nurse In-Charge of the PM shift, had checked in on [Patient A] and myself on several occasions. I started telling [Patient A] that I had been working on my Consultation Liaison - Psychiatry (CLP) presentation all morning on an application called Prezi. [Patient A] started responding to me at this stage and had asked me if I had tried Google Slides before, to which I said 'no, I have not'. He gave me some of the positive points in using it as compared to Prezi. He also said that he could show me some of his previous presentations on that platform if I wanted him to. I saw this as an opportunity to get him to engage in conversation, and so I agreed and said that that would be great. At this point, Zoe Quick, Psychologist and Case Coordinator, came [into] the Seclusion room and checked in on us. I told her that [Patient A] had volunteered to show me some of his previous presentations to help me with my CLP presentation. She also saw that he was no longer self-harming at this time. Zoe Quick, Psychologist and Case Coordinator, offered and got me a work laptop to do this. However, that laptop did not allow its users to access Google applications and so I quickly asked Nicola Joyce RN, Nurse Team Leader of the AM shift, to get me [Patient A]'s mobile phone - the purpose of which was to show me his previous presentations and not for personal use, such as for checking his messages, emails. social applications. [Patient A] was aware and accepting of this as well. [Patient A] showed me his previous presentations on his mobile phone and I agreed that they were good. I also agreed with him that Google Slides was a superior platform as compared to Prezi. [Patient A] then proceeded to start working on a new presentation for me. I encouraged it because it was engaging him in a neutral, non-self harming activity, and had started to engage with me in conversation. I showed [Patient A] the CLP presentation that I worked on that morning. It did not contain any full names, hospital logos, or anything confidential such as patient information. I added the names of the CLP members after that day because I did not know the Physiotherapist's last name. … The texts in the presentation included the CLP's services provided, its vision, and its referral processes – none of which were confidential in nature. [Patient A] asked for screenshots of the texts and airdrop it to him so that he can retype them in the new presentation. I told him that I did not know how to do that, and so [Patient A] did it by himself under my supervision. I clarified with him that I cannot send it to him via text message as that will give him my mobile number. He explained to me that Airdrop is via [B]luetooth so there will be no personal information exchanged. I can provide images of the logo and texts at the Investigating Team's request. … For the entire duration [sic] we were in the Seclusion room, we were engaged in what I perceive as an effective, therapeutic, and free-flowing conversation, with the CLP presentation serving as neutral background activity. … 1. In relation to Allegation 2, the practitioner stated: On 13 July 2020, while I was in the Nurses' office, I noticed in [Patient A]'s WRAP book that he wrote my name in the People That You Trust section. I commented to [Person B], that 'I think I should take a step back.' She replied with 'I agree.' That was the full extent of that conversation. We did not delineate nor define the limiting parameters of what my statement meant in conducting my work. [Person B], did not explicitly state that I was no longer supposed to look after him. talk to him, or to conduct any therapeutic engagements with him. I do not believe that any of these were implied in this brief conversation. I also did not state that I was over-involved with [Patient A]. The rationale for my comment was that I believed that [Patient A] should be able to trust and work with all members of the Nursing team and not just myself, as I would not always be at work. There was no formal meeting between myself and [Person B], about this subject matter. She did not verbally state or had in writing to me or to other senior members of staff that I was no longer supposed to look after [Patient A]. e. On 13 July 2020. Hayley Fisher RN. allocated nurse to [Patient A], walked out of [Patient A]'s room while he was engaging in self-harming activities, including head banging and punching himself in the face. Hayley Fisher RN came into the Nurses Office and indicated that she had to be relieved from the 1:1 nurse special of [Patient A] because she could not. or would not, deal with him while he was actively self-harming. The reason I took over [Patient A]'s care was because Hayley Fisher RN suddenly walked away from [Patient A], who was in his bedroom, stating that she needed someone else to take over. This left [Patient A] unattended and I immediately went into his room to assume care as he was actively self-harming at that time. I saw no issue with taking over care of [Patient A] in order to give Hayley Fisher RN a brief respite as I had not been directed to not care for him. While I had previously related that I thought I needed to "take a step back" in [Patient A]'s care, I did not perceive an issue with caring for him during this brief respite as this would be for a short duration and I would not be [Patient A]'s allocated nurse. Moreover the need to immediately intervene as [Patient A] was actively self-harming made swapping nurse-to-patient allocations across the Unit to facilitate Hayley Fisher RN's request for a brief respite impracticable at that time. [Patient A] was self-harming at that moment and a nurse had to be in there with him as per policy. The purpose of me taking over [Patient A]'s care is because Hayley Fisher RN walked away from [Patient A], who was in his bedroom. If it was to cover Hayley Fisher RN's break, the routine way was to relieve someone while they are with the patient. In the situation in question, I intervened because Hayley Fisher RN left [Patient A] on his own, unattended while he was actively self-harming. I believe that the time-frame of me being in the room was about one hour. … 1. In relation to Allegation 3, the practitioner stated: When Hayley Fisher RN left [Patient A] alone, unattended in his bedroom while he was actively self-harming, the lights were already turned off and the door was already shut. That door needs to be propped open in order to keep it open, and at that time, it was not propped open. I asked for [Patient A]'s permission to come in. When I saw that he nodded, I entered the room. To show respect for the space where he was, I kept the conditions of the room as is, with the lights turned off and the door shut, though the door blinds remained open. I sat on the chair which was by the door while he was standing by the clothes cupboard. He was punching himself on his face and head-banging against the wall. He eventually sat down on the day bed across the room once he started responding at my attempts at conversation after significant persevering and over time. I eventually managed to encourage him to utilise the distress tolerance strategies which we have discussed previously. These strategies include: reciting his mantra, counting to 20 in Spanish, and using a stress ball. I stayed with [Patient A] until he was calm but remained seated in the chair by the door, while he was sitting in the day bed across the room. Because I felt that we were having a positive engagement so far, I asked him to try another task, which was to verbalise positive affirmations while standing in front of the mirror. He was reluctant to do it but complied. I turned the small light on with his permission so that he can see his reflection on the mirror, and I stood behind him. During the exercise, there were times when he motioned towards facing away from the mirror. Because of this, I placed hands on his shoulders, without the need to apply pressure or force, to encourage him to continue with the exercise. I also occasionally redirected his head back to face the mirror. At no point did he say or motioned that he was struggling to be released from my grasp. He did not protest to me having my hands on his shoulders or stated that I was causing harm. I do recall lightly tapping my hands on his shoulders to encourage him to mouth the positive affirmation words, as he found it too difficult to say them out loud. At that time, I felt that he would greatly benefit from completing the exercise and I thought that I was utilising light touch on his shoulders in a therapeutic manner, as we, as nurses, do with other patients when guiding them/ushering them from one activity to another or from one room to the next. I chose this approach as I remained concerned about an incident involving [Patient A] on Friday, 10 July 2020 where he was restrained and given an IM injection against his will. This was done despite [Patient A] agreeing to take oral medication. [Patient A] later related the distress he felt with this incident to me and I wanted to take steps to calm him and stop his related self-harming behaviour without immediately resorting to an involuntary restraint and IM injection as I believed that this action would breakdown the trust between [Patient A] all staff involved in his care. I only used light touch on his shoulders to encourage him to look at his reflection and complete the exercise, which I acknowledged as being very difficult for him to accomplish at that time. I remember lightly tapping him on the shoulders to prompt continuing with the exercise. However I categorically deny that I placed my hands on [Patient A's] upper back and neck, and moving my hands up and down, shaking and pressing [Patient A]'s shoulders. I definitely did not massage him. I used this technique as I felt it was far less restrictive and invasive as compared to a full restrain[t] and IM injection that were used without [Patient A's] consent on the 10 July 2020. … (emphasis added) 1. In relation to Allegation 4, the practitioner stated: When Catherine Cruz, Network Nurse Manager for Mental Health, called me on 14 July 2020. I told her that I was tired and had done 11 shifts in the past 10 days, including two double shifts. I said that because of this. I would not be at my best to do a MH CNC shift, especially since I am only new to that role and usually require some degree of mental preparedness prior to doing a shift, although I still would like to help. I suggested that if Hayley Fisher RN was okay to do the MH CNC shift. then I could come in to work and cover her ward shift instead. I said that that would be my preference as I know the ward more thoroughly and that this was more routinary work for me. I find the ward shift easier than the MH CNC shift and because I was tired, I requested to do the ward shift instead. I did not explicitly specify that I would only come to the shift if I were specialling a patient. I retrieved the allocation book from [Person B]'s office because Stephanie Biniahan, AM Team Leader, was looking for it. I was only trying to be helpful. When [Person B], met with me and Helen Spiliopoulus RN in the Magistrates' room, what I remember saying was 'Liz (Aliza Beaudoin RN) and Atelaite (Atelaite Vea RN) had difficult shifts with [Patient A] on Sunday, 12 July 2020 and Friday, 10 July 2020.' I do not believe that I challenged [Person B] with putting other nurses at risk. I categorically deny making the statement 'would you prefer to put the other nurses at risk by looking after [Patient A]?' In addition, [Patient A]'s risks are towards himself and not towards other people so I would not have said 'putting other nurses at risk'. Helen Spiliopoulus RN suggested that she can take [Patient A] and I be in-charge of the shift, which I was agreeable with. … 1. Further comments, and a lengthy series of questions, were made by the practitioner and provided to the SCH. This appears behind Tab 10 in the Commission's folder of materials, but the date of the document is not known, nor when it was provided to the SCH. Three questions regarding Allegation 3 were provided to the SCH on 5 December 2020 (see the document behind Tab 11 of the Commission's folder of materials). 2. On 27 November 2020, the SCH notified the practitioner that it proposed to find Allegations 1(a), (b), (c) and (d), 2, 3, and 4(a) substantiated. 3. On 6 January 2021, after considering a response from the practitioner, the SCH terminated his employment. Section 150 hearing 1. On 15 February 2021, a panel of delegates of the Nursing and Midwifery Council of New South Wales (Council) held a hearing pursuant s 150 of the National Law. The practitioner attended the hearing and the Tribunal had before it a transcript of the hearing. Where relevant we will refer to the practitioner's evidence below. 2. At the conclusion of the hearing, the Council placed the following conditions on the practitioner's registration: 1. To practice under indirect close supervision in accordance with the Nursing and Midwifery Council of New South Wales regulatory supervision policy (as varied from time to time) and as subsequently determined by the appropriate review body. (a) to nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council. (b) to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. (c) To authorise the Council to provide nominated and approved supervisors with a copy of relevant decisions. 2. Not to practise until a supervisor has been approved by the Nursing and Midwifery Council of NSW. 3. Within seven (7) days of a change in the nature or place of practice, the practitioner is to forward evidence to the Nursing and Midwifery Council of NSW that he has provided a copy of this decision and full conditions to the nursing employer/s. 4. Not to undertake agency nursing. 5. Not to be the nurse in charge of any shift, ward or unit. 6. Not to work as the sole practitioner on any shift, ward or unit. 7. To practise no more than 40 hours per week. 8. Not to work night duty (between 10.00pm and 6.00 am). 9. To authorise the Nursing and Midwifery Council of NSW to exchange information with current and future persons or organisations at places where the practitioner works as a nurse in Australia, regarding any issues arising in relation to compliance with these conditions. He must only be employed as a nurse in circumstances where the employer has agreed to notify the Council of any breach of the conditions or unsafe practice; and exchange information with the Council related to compliance with the conditions. Evidence before the Tribunal The Commission's documents 1. The Commission's two volumes of materials include, but are not limited to, complaints, correspondence between the parties and with regulators, the transcript of a s 150 hearing and subsequent decision, witness statements, an expert's report of Ms Marabong and NSW Health Codes of Conduct, Guidelines and Policies. 2. The practitioner did not require any Commission witness to attend the hearing for cross-examination. The practitioner's documents 1. The practitioner evidence is summarised above at [12]. 2. The practitioner did not attend the hearing. Had the practitioner attended the hearing, he would have been cross-examined by the Commission. 3. The Commission did not require any other witness relied on by the practitioner for cross-examination. Complaint One 1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (l) of the National Law in that the practitioner: 1. engaged in conduct that demonstrates the knowledge, skill or 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 2. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 1. In his Reply to Disciplinary Findings (Reply), the practitioner says that whether or not Complaint One is established is a matter for the Tribunal to determine. Particular (1) 1. Particular (1) is that: 9 July 2020 1. The practitioner spent approximately four hours with Patient A in the seclusion room which was inappropriate in that: a. the amount of time was excessive; and b. it prevented the seclusion room being used in the event of a code black or emergency. 1. In his Reply, the practitioner states whether or not he admits each particular, and then addresses matters which more properly relate to the Stage 2 considerations. However, for convenience we will set out the totality of each response in relation to each of the Particulars. 2. In relation to Particular (1), the practitioner states: I admit this particular in its entirety. As indicated in my earlier responses, the seclusion room was a space that was rarely used and provided a quiet, low stimulus environment. Patient A had been self-harming and the seclusion room was free from furniture or other implements that could be used to self-harm. The seclusion room was located away from other patients and my reasoning was that taking Patient A into that area whilst he was self-harming would mean that other patients would be less likely to observe that and potentially become distressed as a result. I took Patient A into the seclusion room and observed that he was becoming settled. During this time a number of my colleagues came past to see how things were going. In an attempt to engage and redirect Patient A, I asked my colleagues to bring in devices for myself and Patient A to use during this time. It was not my intention to spend a prolonged period of time with Patient A in the seclusion room. On reflection, once Patient A had settled, I should have redirected him to a more appropriate place. At the time I prioritised the effectiveness of Patient A being in the seclusion room (being settled and engaged) over relocating him. I have read the report of the Peer expert reviewer and agree that had the seclusion room needed to be used during that time for another patient, that myself and Patient A being in there may have created a delay. At the time the room was so seldom used, that it did not occur to me. 1. The practitioner also addressed this issue in a document he prepared and, we understand, provided to the Council for the s 150 hearing. Relevantly he stated: I have outlined in my responses to the employer the rationales for staying in the seclusion room. As part of the practice, if a patient is accompanied in the Seclusion room, it is not considered as a seclusion, but as providing a safe space The patient was on a 1:1 nurse special so I would have to spend a long hours with him on shift. The result of my actions is that the patient stopped banging his head against the walls. There is a camera facing the Seclusion room and so there is vision as to what was occurring in the room at the time. (without anyone else present) Several staff members, including the Nurse In-Charge of the shift and the case coordinator checked in on us. I also had my break covered by another staff member. Upon reflection, although my actions resulted in a de-escalation of the patient, I should have been more forceful in ushering him back to the common areas. Even though I offered several times, I did not insist on it. I should not have assumed that my colleagues were okay with it even though they checked on us from time to time. Is Particular (1)(a) proved? 1. This Particular has been admitted by the practitioner and we find it proved. Is Particular (1)(b) proved? 1. We note that the practitioner has admitted this particular, but we reject that admission. We do so as the Tribunal considers that, as a matter of logic, that particular could not be correct. What could be correct is that there could be a delay in utilising the seclusion room (a matter admitted by the practitioner), but we do not accept that the use of the seclusion room prevented the seclusion room from being utilised at all, which is what this Particular suggests. 2. We do not find this Particular proved. Particular (2) 1. Particular (2) is that: 9 July 2020 … The practitioner inappropriately allowed Patient A's mother to visit Patient A in the seclusion room for approximately 30 minutes." 1. In his Reply, the practitioner states: "This particular is not admitted. I do not admit this particular as I did not allow Patient A's mother into the seclusion room, however I accept that once she was brought in, I should have redirected both her and Patient A to an appropriate room for visiting. I do not recall who, but whilst I was in the seclusion room with Patient A, one of my colleagues at the time brought Patient A's mother into the seclusion room. Prior to this, Patient A had been refusing visits from his mother, however on this occasion he agreed. At the time I did not want to do anything that may disrupt the visit and so I did not take steps to redirect them to a more appropriate location for a visit. 1. The Commission relies on the practitioner's evidence at the s 150 hearing, where the practitioner acknowledged that his decision to allow Patient A's mother to visit and share a meal with him in the seclusion room was contrary to the unit's usual practice, but that he allowed the visit on this occasion because it was the first time Patient A had accepted a visit from his mother in a while and "because he was already in a therapeutic environment, I thought we'd just keep that the same, rather than move him to a meeting room on the other side of the ward" when Patient A's mother arrived. 2. This Particular is poorly worded. We accept that the practitioner allowed Patient A's mother to remain in the seclusion room with Patient A, but we do not accept that the practitioner allowed Patient's A mother to enter the seclusion room. On balance, we find this Particular proven. We also find that there are extenuating circumstances which excuse the practitioner's conduct on this occasion. Particular (3) 1. Particular (3) is that: 9 July 2020 … The practitioner gave Patient A access to a personal electronic device in the seclusion room which was inappropriate in that: a. the access occurred outside of allocated times; b. the practitioner provided Patient A access to a work-related document on the personal electronic device which contained confidential information; c. the practitioner allowed Patient A to edit the work-related document. 1. In his Reply the practitioner states: Particular 3 This particular is admitted. Particular 3 a. This sub-particular is admitted. Particular 3 b. This sub-particular is partially admitted. Particular 3 c. This sub-particular is admitted. I admit this particular and sub-particulars with the exception of the reference in the Complaint to the document containing 'confidential information'. At the time when I was in the seclusion room with Patient A, I was trying my best to find things to try and engage Patient A enough to de-escalate and redirect him from his self-harm behaviours. At the time I was on a work laptop that had been brought to me by one of the medical officers and Patient A had a device that had been brought in by another staff member. I had begun working on a presentation regarding a new mental health service. The presentation was in very draft form and it was going to be something that was shared with consumers and their families to assist them with understanding one of the services that are provided. Whilst I was working on this Patient A made a comment about being able to improve the formatting of the document and I saw that he appeared interested and engaged so I sought his assistance by sharing the document as a way of distracting him from self-harming. A couple of days later it was brought to my attention by a colleague that Patient A was still working on this document. I immediately realised that I had made a grave error by sharing the document with him and that it was not appropriate for him to be working on this. After reading the statements provided by the Health Care Complaints Commission, as well as reading about and undertaking education regarding professional boundaries, I have reflected on this Complaint differently. I now appreciate that Patient A should not have had a device with him outside the appropriate times. The policies of the ward regarding use of devices were in place for good reason and it is important that device time is monitored and limited. By giving Patient A access outside of these times, it may have appeared that he was receiving special treatment because of his self-harming behaviours. This is problematic for many reasons, but especially because it may have served as an incentive for Patient A to self-harm, but also if other patients became aware of this, it may encourage them to self-harm. I still know that sharing the draft document with Patient A was inappropriate but I now realise that in doing so I was bringing up my own needs (working on the presentation) and that then created an imbalance whereby Patient A was more focused on my needs than I was on his needs as a patient. Because at the time it appeared to be effective, I mistakenly continued to allow this to occur. In hindsight, I should never have shared what I was doing or suggested that Patient A could help or assist me in that way. I could have suggested that he do some schoolwork, organise the games cupboard, work on distress tolerance strategies or ask some of my colleagues for other ideas of activities that I could have engaged Patient A in. 1. The practitioner also addressed this issue in a document he prepared for the s 150 hearing. Relevantly he stated: I tried to get the patient into a conversation by telling him about a presentation I was doing, which worked. I allowed the use of a technological device as a way of distracting him from self-harming behaviours. At the time, I did not think that asking for approval to use the device as a priority over intervening in a self-harming patient, but I apologise for this oversight. Upon reflection, I should have followed the draft policy to a T and ask[ed] for permission first before giving the patient the device. … I outlined in my responses to the Employer how the conversation evolved around the presentation I was working on and how the patient offered to help me with this. Seeing this as an opportunity to have a background neutral activity to distract him from self-harming, I encouraged it. As it was my personal work, there was nothing confidential about these. I have previously denied giving the patient the staff names (I am unsure as to how this is confidential, in the allegation, they claimed that I sent hospital logos, and confidential patient information). I added the names on the presentation after my shift. I did address this with the patient the following Sunday when I realized that we both had access to the Google slides presentation. As soon as I realized this oversight, I addressed this with the patient in front of a colleague, which I mentioned in my responses to the Employer. Upon reflection, I should not have used working on the presentation as a way to distract the patient from self-harming. I should have called for a code black instead. 1. The Commission relies on the practitioner's written response to the SCH of 26 August 2020. 2. The Commission submits that the practitioner explains that while in the seclusion room, he was discussing with Patient A that he had been working on his Consultation Liaison – Psychiatry (CLP) presentation (CLP presentation). During the course of this conversation, Patient A and the practitioner discussed various platforms which would be most suitable to create the CLP presentation. Patient A explained that he could show the practitioner previous presentations on his recommended platform. The practitioner explains: Zoe Quick, Psychologist and Case Coordinator, offered and got me a work laptop to do this. However, that laptop did not allow its users to access Google applications so I quickly asked Nicole Joyce RN, Nurse Team Leader of previous the AM shift, to get me [Patient A's] mobile phone – the purpose of which was to show me his previous presentations and not for personal use, such as for checking his messages, emails, social applications. [Patient A] was aware and accepting of this as well. 1. Following this discussion, Patient A assisted the practitioner in "airdropping" the CLP presentation from another device, to his (as in Patient A's) mobile phone. Patient A then commenced editing the CLP slides, on his own mobile phone, while in the seclusion room with the practitioner. 2. The Commission submits that it is not in dispute that the practitioner asked Patient A to access his device, for the purpose of "airdropping" the CLP presentation. The practitioner indicated that he did not have the technology skills to do so. Once the CLP slides were sent, they were edited by Patient A on his phone. In relation to the timeframe, the practitioner notes: A couple of days later it was brought to my attention by a colleague that Patient A was still working on this document. I immediately realised that I had made a grave error by sharing the document with him and that it was not appropriate for him to be working on this. 1. The Commission submits that, at the time, the policy was for patients to be allowed to use their own electronic devices only for permitted purposes subject to time restrictions and use was permitted only in certain areas which did not include the seclusion room. 2. We find each of Particulars 3(a), (b) and (c) proved. Particular (4) 1. Particular (4) is that: 13 July 2020 At approximately 17:30 the practitioner took over care of Patient A, which was inappropriate in that earlier that day the practitioner: a. said to Person B words to the effect of, 'I am going to try and distance myself from Patient A as he is getting too close'; b. said to Person B words to the effect of, 'I think I should take a step back' in relation to Patient A; and c. had agreed with Person B not to be involved in the primary care of Patient A. 1. In his Reply, the practitioner states: Particular 4 This particular is admitted. Particular 4 a. This sub-particular is not admitted. Particular 4 b. This sub-particular is admitted. Particular 4 c. This sub-particular is not admitted. I admit that at 17:30 hours on 13 July 2020 I took over the care of Patient A. As indicated in my earlier responses, I was the nurse in charge of the unit on that shift. My colleague RN Hayley Fisher had been allocated to care for Patient A. I was aware that Patient A was on TSL1-A level of observation which meant that a nurse had to be within [arm's] length of the patient at all times. I was aware that Patient A had been engaging in self-harm behaviours during the shift. During the shift, RN Fisher walked out of Patient A's room and into the nurses' station where I was. RN Atelaite Vea was also in the nurses' station, however she had been allocated to care for a patient who was on a TSL 1-B observation (which meant the patient had to be within her line of sight). As I did not have a patient allocation on that shift, I immediately went into Patient A's room to ensure that he was being observed in accordance with the TSL1-A observation requirement. At the time I did not know how long Ms Fisher would be away from the patient and was under the impression she was taking a short break. On reflection it would have been more appropriate for me to ask RN Vea to take over the care of Patient A and for me to take over the care of the patient RN Vea was specialling for two reasons. Firstly, because I had identified that I wanted to step back from the care of Patient A, but also because as the Nurse in-charge I should have stayed out in the common areas to organise breaks and support the other staff as required. The conversation I had with [Person B] on 13 July 2020 regarding Patient A was very short and at no time was I directed not to provide care to Patient A, nor did I agree that I would not be involved in any care of Patient A. When I spoke with [Person B], it was because I had read in Patient A's WRAP book that under the "People that you trust" section, Patient A had written my name only. This concerned me as usually patients would have a larger number of people written and ideally include family, friends or other supports outside of the hospital. I mentioned this to [Person B] and said that 'I think I should take a step back'.[Person B's] response was 'I agree' and there was no further conversation at that time. I had flagged this with [Person B] so that I wouldn't be allocated to be Patient A's primary care nurse for a while to ensure that he was therapeutically engaging with other nurses on the unit. At no time did I say that Patient A and I were getting too close or that I was going to distance myself. I did understand that following our discussion, I wouldn't be allocated the primary care of Patient A, however given that I was regularly in charge and often covered breaks for staff, I was not given the impression that extended to never providing any care to Patient A. Had such a direction been clearly given, then I would have ensured that I complied with that. At the time I was prioritising the safety of Patient A by ensuring that he was being closely observed. In hindsight, I should have asked RN Fisher how long she was going to take her break for so I could arrange appropriate cover and then asked RN Vea to attend Patient A while I looked after her patient. 1. The Commission relies on the statement of Person B. In the absence of any sworn evidence of the practitioner and any cross-examination of him, we accept the evidence of Person B and find Particulars 4(a) and (c) proved. 2. As the practitioner admitted Particular 4(b), we find it proved. Particular (5) 1. Particular (5) is that: 13 July 2020 … Between approximately 17:30 and 18:30 the practitioner failed to observe appropriate professional boundaries with Patient A, in that the practitioner: a. was alone in the room with Patient A; and b. touched Patient A by moving his hands up and down on Patient A's shoulders, upper back, head and neck. 1. In his Reply, the practitioner states: This particular is admitted in its entirety. As stated above, on reflection I should not have gone into Patient A's room to relieve RN Fisher as I could have asked RN Vea to attend and taken over RN Vea's patient. Although it is not uncommon for nurses to sit in patients' rooms with the door closed, I can see now that in the circumstances I should have paid attention to ensure that the door remained open. As I have indicated in my previous responses, the door to Patient A's room was shut before I entered, and it would have needed to be propped open. I did not do this. Even if RN Fisher had been previously in the room with the door closed, I should have propped it open so as not to put myself in a position of being misperceived as doing something wrong. When I entered Patient A's room and observed that he was self-harming my first step was go through the distress tolerance strategies that he had previously identified as being helpful. These strategies were outlined in his WRAP book. I recall three of the strategies were: use of the stress ball, counting down in Spanish, and saying positive affirmations in front of a mirror. When trying to encourage him to do the positive affirmations in the mirror, this was something that I identified that he needed more support and encouragement to do. He was starting to engage in the activity, and I tried to encourage this by putting my hands on his shoulders and lightly tapping. Working in mental health, it is not uncommon to use light touch to redirect patients in certain circumstances. At the time I believe was touching his shoulders to encourage and support him to complete the task which he eventually did. I have reflected extensively on this over the last two and a half years and have undertaken further education. I now understand that at the time there was no clinical indication or necessity to use touch on Patient A to support him to complete the activity and that I should not have done this. It was not appropriate and had Patient A not wished to complete the activity, I should have employed other strategies or sought assistance from other staff if needed. I deeply regret my decision-making on that day." 1. In the document the practitioner prepared for the s 150 hearing, the practitioner relevantly stated: I have repeatedly denied massaging the patient. I have outlined in my responses to the Employer the context on which I utilized therapeutic touch in assisting the patient to complete a self-esteem task that I was working with him on. In the Unit, nurses routinely place hands on patients' shoulders to assist them and coach them in doing tasks. Therapeutic touch is an important tool for paediatric nurses. I do not believe I touched the patient inappropriately but upon reflection, I realize that from the perspective of my colleagues from the office, it may be misinterpreted given my sexual orientation and the door being closed. The door was shut to maintain and respect the space of the patient at the time of distress. 1. The practitioner admitted these Particulars "in their entirety" and we find that they are proved. Particular (6) 1. Particular (6) is that: 14 July 2020 The practitioner accepted one on one care for Patient A at the commencement of his overtime shift which was inappropriate in that: a. on 13 July 2020 the practitioner said to Person B words to the effect of, 'I am going to try and distance myself from Patient A as he is getting too close'; b. on 13 July 2020 the practitioner said to Person B words to the effect of, 'I think I should take a step back' in relation to Patient A; and c. on 13 July 2020 had agreed with Person B not to be involved in the primary care of Patient A; d. the practitioner said to Person B words to the effect of, 'I'm the only one on that's appropriate to look after Patient A'; and e. the practitioner left the Saunders Unit when asked by Person B about his one-on-one care of Patient A. 1. In his Reply, the practitioner states: Particular 6 This particular is not admitted. Particular 6 a. This sub-particular is not admitted. Particular 6 b. The content of this sub-particular only is admitted, but not the header. Particular 6 c. This sub-particular is not admitted. Particular 6 d. This sub-particular is not admitted. Particular 6 e. This sub-particular is not admitted. I did not 'accept' one on one care for Patient A at the commencement of my overtime shift. Because of the discussion that followed, there was no need for me to engage in any discussion about being allocated Patient A. Patient allocations are undertaken by the nurse in-charge of the previous shift. I generally tend not to question allocations because I know how difficult a task it can be, however on this occasion had I proceeded to work that shift, I believe I would have asked to be reallocated. On this day I got a call from my NUM's manager directly asking for me to work overtime in the CNC role. As I explained previously, this was harder for me and a ward shift was more manageable given that I was already working a long streak of shifts, so I instead asked if I could work on the ward. I remember being tired and there being discussion about the allocations and overtime shifts, I was asked whether I wanted to be the in-charge on that shift which I agreed to. I did not accept the care of Patient A, nor did I provide any care to Patient A on that shift. Shortly after the discussion I was informed that RN Morris had already previously agreed to stay back and so that I could go home and not do this overtime shift which I was happy with. Is Particular 6 proved? 1. We do not find this Particular proved. The allegation is that the practitioner "accepted" care of Patient A that day. That particular does not properly describe what happened in that the practitioner, having been asked to come in to work on his day off, was "allocated" the care of Patient A, presumably by the Team Leader that day. As Person B states, she noticed in the allocation book that the practitioner had been allocated to care for Patient A; see too the record of interview of RN Spiliopoulos. Furthermore, from what we understand, the practitioner did not in fact provide any care to Patient A as, after the intervention of Person B, the practitioner was allowed to go home. Conclusion 1. For the above reasons: 1. we find the conduct the subject of Particulars 1(a), 3(a), (b) and (c), 4(a), (b) (c) and 5(a) and (b) established; 2. we do not find the conduct the subject of Particulars 1(b), 2 and 6 established. Complaint Two 1. Complaint Two is that the practitioner is guilty of professional misconduct under s 139E of the National Law. 2. The Particulars of Compliant Two are: 1. Particulars 5(a) and 5(b) of Complaint One, which are relied on individually; 2. The Particulars of Complaint One, which are relied on cumulatively. 1. As we have found only Particulars 1(a), 3(a), (b) and (c), 4(a), (b) (c) and 5(a) and (b) of Complaint One to be established, these are the only Particulars that can be relied on cumulatively by the Commission. Relevant Law and Principles Relevant law 1. It is appropriate to set out the relevant provisions of the National Law. These are as follows. 2. Section 3A, which relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. … 1. Section 3B of the National Law, which provides, in terms: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. A "NSW provision" is relevantly defined in s 5 of the National Law as a provision that forms part of the National Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). 2. Section 139B, which is a NSW provision, relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E of the National Law, which is also a NSW provision, provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration. 1. Section 149A, another NSW provision, relevantly provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only— (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. 1. Section 149C, also a NSW provision, relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— … (b) the practitioner is guilty of professional misconduct; or … (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. Relevant principles Unethical or improper conduct 1. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. The Tribunal stated: 21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22. The Macquarie Dictionary offers several definitions of both words which include: 'Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct.' 23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: 'Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both.' 24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 … at [53]. 25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances. 1. Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60]. Protective orders 1. The relevant principles in determining a protective order have been stated on many occasions, including recently in Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 at [57]-[66]. We paraphrase those principles as follows: 1. the protection of public safety and health is paramount: National Law, ss 3A and 3B; 2. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); 3. the Tribunal must consider the maintenance preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; 4. protective orders also involve 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: Prakash at [91]; 5. the indirect but important effects of a protective order which must be considered when determining the appropriate protective order include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340; 6. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; 7. the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; Meakes at [113]-[114]; 8. no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; Meakes at [113]; Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to). 1. In Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 at [22], the Tribunal set out the matters to which the Tribunal should have regard in determining an appropriate protective order, namely: 1. the gravity of the misconduct; 2. how long ago the misconduct occurred; 3. what has occurred in relation to the practitioner since the misconduct; 4. the practitioner's level of remorse and degree of insight, if any, into his or her misconduct; 5. what, if any, steps have been taken by the practitioner by way of rehabilitation; 6. general encouragement of high standards; and 7. specific considerations of what is required to ensure that the practitioner does not pose similar risks in the future. Is the practitioner guilty of unsatisfactory professional conduct? 1. We now turn to consideration of whether or not any of the proven conduct is unsatisfactory professional conduct. Particular 1(a) 1. We found Particular 1(a) proved. The conclusion of Ms Marabong on the issue of the practitioner using the seclusion room with Patient A for four hours was that the conduct: … was inappropriate, and [the practitioner] should have redirected [Patient A] out of the room once he became more settled. If [the practitioner] felt it was safe to bring in other equipment, allow [Patient A] a visitor and allow him to utilise his mobile phone in the seclusion room, [Patient A] was evidently settled and no longer needed a high level of containment to warrant ongoing use of the room. [The practitioner] purports that his reasoning for using the room was to provide a "low stimulus environment" for an agitated [Patient A]; however, once he allowed other equipment and a visitor into the room, it was no longer a low stimulus space. Thus, I find that [the practitioner] utilised the room for an inordinate and unnecessary amount of time and his conduct fell significantly below what is reasonably expected of a practitioner with an equivalent level of training or experience as the practitioner complained about at the time of the events the subject of complaint, and invites my strong criticism. 1. In the circumstances, we find that the conduct the subject of Particular 1(a) is unsatisfactory professional misconduct pursuant to s 139B(1)(a) of the National Law. 2. It is not necessary to determine whether or not the conduct the subject of Particular 1(a) is unethical or improper conduct pursuant to s 139B(1)(l) of the National Law. Particular 2 1. We found this Particular proved, and we consider that the conduct the subject of the Particular is unsatisfactory professional conduct. This is principally because Ms Marabong's view of the practitioner's conduct was: [u]ltimately, if it was appropriate for [Patient A] to accept a visitor and have a meal with her, he no longer required a low stimulus space. In conclusion, it is my opinion that [the practitioner's] actions fell significantly below what is reasonably expected of a practitioner with an equivalent level of training or experience as the practitioner complained about at the time of the events the subject of complaint, and invites my strong criticism. 1. It is not necessary to determine whether or not the conduct the subject of Particular 2 is unethical or improper conduct pursuant to s 139B(1)(l) of the National Law. Particulars 3(a), (b) and (c) 1. We found these Particulars proved, and we consider that the conduct the subject of the Particulars is unsatisfactory professional conduct. This is principally because Ms Marabong's view is that the conduct: … further demonstrates that [the practitioner] had lost objectivity with [Patient A], as he breached policy, abandoned professional boundaries and had basically given [Patient A] free reign to utilise his phone. In conclusion, I believe that [the practitioner's] actions fell significantly below what is reasonably expected of a practitioner with an equivalent level of training or experience as the practitioner complained about at the time of the events the subject of complaint, and invites my strong criticism. 1. It is not necessary to determine whether or not the conduct the subject of Particulars 3(a), (b) and (c) is unethical or improper conduct pursuant to s 139B(1)(l) of the National Law. Particulars 4(a), (b) and (c) 1. We found each of Particulars 4(a), (b) and (c) established. 2. Ms Marabong was asked to comment on the practitioner's conduct the subject of these Particulars, firstly based on Person B's version of events, and secondly on the practitioner's version of events. 3. In relation to Person B's version of events, Ms Marabong states: As per [Person B's] statement to the Commission … on 13 July 2020 she and [the practitioner] had agreed that he would … "try to stay away" from caring for [Patient A] due to [the practitioner] identifying that they "are getting too close". Evidently, [the practitioner] had realised that overfamiliarity had began [sic] to occur and was concerned enough about this to approach [Person B]. Indeed, this is a responsibility outlined in the Code of conduct for nurses (section on 'professional boundaries'), which states that nurses should "recognise when over-involvement has occurred, and disclose this concern to an appropriate person, whether this is the person involved or a colleague" (page 10). For his disclosure to [Person B] and initial attempt to rectify the situation, [the practitioner] demonstrated honesty and professionalism and I cannot fault his conduct in this instance. Ideally, [the practitioner] would have limited his contact with [Patient A] from that point forward; not assumed the role of his primary nurse when on shift and only engaged with him when in common areas with others around (i.e., avoided being alone with him). It is therefore incomprehensible that later that day, he took over from RN Fisher to special [Patient A] in his room. This action clearly contradicts his earlier revelation to [Person B] that he was growing concerned that his relationship with [Patient A] was becoming over-involved. The appropriate response from [the practitioner] in this case would have been to ask RN Vea to continue the special, and perhaps explain to his colleagues present (RN Vea and RN Fisher) that he was feeling overwhelmed with [Patient A] and needed a break from nursing him. By my appraisal, his inability to act on his better judgement after discerning that he and [Patient A] were "getting too close", highlights how clouded his decision-making had become. He was no longer impartial and had become incapable of conserving professional boundaries. Therefore, I believe [the practitioner's] actions fell significantly below what is reasonably expected of a practitioner with an equivalent level of training or experience as the practitioner complained about at the time of the events the subject of complaint, and invites my strong criticism. 1. On the other hand, based on the practitioner's version of events, Ms Marabong states: [The practitioner] describes that he only had a very brief conversation about taking "a step back" from [Patient A] with [Person B], and that there was no explicit direction from [Person B] that he was no longer to care for him. He states that he was not becoming overfamiliar with [Patient A] from his perspective but was worried that [Patient A] was becoming too dependent on him. He further explains that he assumed care of [Patient A] while he was distressed and self-harming in his bedroom, as RN Fisher (who was specialling him at the time) left the room and did not return. [The practitioner] reports that RN Fisher was not able/willing to stay with [Patient A] at that point, forcing him to special the patient. He also states that RN Fisher took more than an hour to return. Taking this into account, it is my clinical opinion that [the practitioner] acted reasonably and properly intervened to care for a distressed patient. There was no clear agreement or direction from [Person B] that he was not to engage or care for [Patient A], and RN Fisher left [Patient A] while he was self-harming. [The practitioner] had a duty of care to help [Patient A] and try to diffuse the situation and was the only nurse available at the time. Moreover, RN Fisher apparently had no objection to [the practitioner] taking over [Patient A's] care, giving credence to [the practitioner's] claim that there was no established plan for him not to take care of [Patient A]. Thus, it is my opinion that [the practitioner's] conduct was in keeping with the standard reasonably expected of a practitioner with equivalent training or experience and does not invite my criticism. 1. Having accepted Person B's version of events in the absence of cross-examination of her and any sworn evidence of the practitioner, we find that the conduct the subject of Particulars 4(a), (b) and (c) is unsatisfactory professional misconduct pursuant to s 139B(1)(a) of the National Law. 2. It is not necessary to determine whether or not the conduct the subject of Particulars 4(a), (b) and (c) is unethical or improper conduct pursuant to s 139B(1)(l) of the National Law. Particulars 5(a) and (b) 1. We found each of Particulars 5(a) and (b) established. 2. Particular 5(a), by itself, could never in our view amount to unsatisfactory professional conduct. It should not have been pleaded. Clearly, a nurse is going to be alone with their patient from time to time. 3. As to Particular 5(b), being the touching of Patient A, Ms Marabong was asked a series of question about the practitioner's conduct, to all of which she responded that the practitioner's conduct fell significantly below what is reasonably expected of a practitioner with an equivalent level of training or experience as the practitioner complained about at the time of the events the subject of complaint, and invited her strong criticism. 4. In the circumstances, we find that the conduct the subject of Particular 5(b) is unsatisfactory professional misconduct pursuant to s 139B(1)(a) of the National Law. 5. It is not necessary to determine whether or not the conduct the subject of Particular 5(b) is unethical or improper conduct pursuant to s 139B(1)(l) of the National Law. Is the practitioner guilty of professional misconduct? Particular 5(b) individually 1. The Commission relies on Particular 5(b) individually as constituting professional misconduct. 2. Ms Marabong's relevant opinions on this issue include the following: 1. using therapeutic touch with patients is a contentious issue that can be easily misinterpreted; 2. the practitioner showed poor judgement by engaging in this behaviour alone with Patient A in his room; 3. it is difficult to find clinical justification for the practitioner's actions; 4. there is no clinical scenario where the kind of contact described by RN Fisher would be suitable, and it is not regular practice for nurses to massage patients. 5. given the practitioner, on some level, had identified that Patient A was potentially becoming too attached to him, it was "egregiously imprudent" to then put himself in that situation with Patient A; 6. massaging patients is not common practice and Ms Marabong has never known a nurse to do this; 7. the kind of interaction described by the practitioner is not conventional nursing care and most nurses would not incorporate such strategies in their practice; the practitioner should have asked another nurse to be present in the room during any therapeutic touch activity. As an experienced nurse, he should have anticipated the vulnerable position he was placing himself in and seen the impropriety in his actions, including the potential for the situation to be distorted by a bystander. His failure to do so, illustrates that he had lost objectivity regarding Patient A and his judgement was impaired. 1. For all these reasons, Ms Marabong concluded that the practitioner's conduct fell significantly below what is reasonably expected of a practitioner with an equivalent level of training or experience as the practitioner complained about at the time of the events the subject of complaint, and invited her strong criticism. 2. We accept that, but does the conduct amount to professional misconduct? Relevantly, is it unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration? As we have noted, whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement. 3. The practitioner's conduct was described by RNs Vea and Fisher. RN Vea described the conduct as: just sort of pinching his shoulder. It looked to me as though [the practitioner] was massaging [Patient A's] shoulders. It wasn't like a deep tissue massage – it was more of a pinch motion, but not forceful. I thought this was quite inappropriate. 1. The conduct was described by RN Fisher as: 52. I saw that [the practitioner] was holding his hands on [Patient A's] shoulders, upper back, head, and neck, and moving his hands up and down over these parts of [Patient A's] body, shaking and pressing. [The practitioner's] arms were a little bit bent, not fully outstretched. 53. It appeared to me that [the practitioner] was doing some type of massage or acupressure. 54. [The practitioner] was touching [Patient A] over the top of his clothing, using both hands. He appeared to be applying medium pressure, somewhere in between firm and gentle. He was moving his hands quickly, like when you're shaking someone. I can't remember if he was using flat hands, or if it was more a of a kneading motion. 55. I'm not sure how long it went on for, because I looked away. I only watched for less than a minute. I felt really uncomfortable about it. I said something to [RN Vea] like, 'Can you see what I'm seeing?' And she said, 'Yeah. It looks like he's massaging him'. (emphasis added) 1. While we accept that this conduct constitutes clinical misjudgement, we do not accept that this conduct as so described, and on the first occasion, is conduct of such a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Particular 5(b), in combination with other particulars 1. We turn now to the question of whether Particular 5(b) in combination with other proven particulars, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 2. The other particulars relate to: 1. the practitioner spending an excessive amount of time with Patient A in the seclusion room on 9 July 2020 (Particular 1(a)); 2. the practitioner giving Patient A access to electronic devices in the seclusion room (Particular 3); 3. the practitioner taking over the care of Patient A on 13 July 2020 (Particular 4). 1. We do not consider, when these matters are considered cumulatively along with Particular 5(b), they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In our view, all these matters could be addressed by management supervision and/or, as the Council decided, by conditions being placed on the practitioner's registration. Protective Order The Commission's submissions 1. The Commission seeks the following orders: 1. an order under s 149C(4)(a) of the National Law that, if the practitioner was still registered as a nurse, the Tribunal would have suspended his registration for a period of six months from the date of this decision; 2. an order under s 149C(4)(c) of the National Law, requiring the Nursing and Midwifery Board to record the fact that had the practitioner been registered, the Tribunal would have suspended his registration for a period of six months from the date of this decision. 1. The Commission submits that these orders are appropriate on the basis that the practitioner is found guilty of both unsatisfactory professional conduct and professional misconduct. In summary, the Commission submits that: 1. the practitioner's conduct was serious, involving a series of breaches of professional boundaries, with a vulnerable patient with a significant mental health history of which he was aware; 2. the practitioner has not meaningfully engaged by way of attending the hearing in these proceedings. As the practitioner has not made himself available for cross-examination, little if any weight should be placed on the 'Further Reflection'; 3. the practitioner has shown limited insight into the seriousness of his conduct. This is particularly so in relation to his description of the massage and minimisation of the act; 4. there is also a need for general deterrence and maintenance of public confidence in the profession, particularly so in cases involving vulnerable patients; 5. a central tenet of nursing care involves maintenance of appropriate professional boundaries, and recognition of the inherent power imbalance that exists between nurses and people in their care and to recognise when over-involvement has occurred and disclose that to an appropriate person. That did happen in this case and attracts the expert's praise, however the steps that followed are troublesome; 6. the actions of the practitioner are a grave departure from the ethical and professional standards including the requirement for nurses to maintain professional relationship and maintain appropriate boundaries. 1. The Commission also made submissions to address the possibility that the practitioner was not found guilty of professional misconduct. The Commission submitted: 53. As the respondent is not currently registered. [sic] There is a narrow scope of orders available to the Tribunal. 54. The [Commission] submits that in the event that professional misconduct is not found, then the [Commission] would seek an "order" in terms of a reprimand, namely, a formal rebuke that is not connected to practitioner's registration. 55. As the Tribunal is aware, s 149A of the National Law is the general power to reprimand. S[ection] 149A(1) specifically notes that 'The Tribunal may do any one or more of the following in relation to the registered health practitioner' … and then it goes on to list the various powers including to reprimand. Under the National Law, there is not an equivalent section which applies to unregistered practitioners. 56. In assessing the available options to the Tribunal, the following passage of Lindsay v Health Care Complaints Commission [2005] NSWCA 356 is relevant: I would add that, in my opinion, the power of the Tribunal under s.61(1)(a) of the Medical Practices Act to "caution or reprimand the person" authorises the Tribunal to issue to the person a form of words, the precise content of which can be determined by the Tribunal, so long as the form of words does truly constitute either the cautioning or reprimanding of the person. Accordingly, in my opinion, an order "that [the person] be severely reprimanded" is within that power. 57. S[ection] 61(1)(a) of the Medical Practices Act was in similar terms as s 149A(1)(a) of the National Law. 58. In the event that professional misconduct is not found, the Commission seeks that the respondent is reprimanded in the published decision of the Tribunal. The Commission would seek an "order" in terms of a reprimand, namely, a formal rebuke that is not connected to practitioner's registration. The Tribunal is invited to use words to the effect of "the practitioner is reprimanded for his conduct". The practitioner's submissions 1. The practitioner did not make particular submissions as to a protective order, but he did state the following in his "Response to particulars and reflection on the complaint" document: Earlier this year, I opted not to renew my registration as a nurse. This was a very difficult decision but one that was made carefully. I know now that I have to prioritise my own health and wellbeing over working. The past two and a half years have been a very difficult time for me, and the investigation process has caused me significant anxiety. That anxiety has and continues to affect me to the point that I cannot open any of the related documents without a support person next to me. It is for this reason that I have decided that I am not able to participate in the upcoming hearing. I feel the need to look after my well-being first, and in knowing how difficult it would be to be placed in that situation, I decided it would be safest for me to put my response in writing and hope that this will be sufficient for you to be able to make a decision. I have a tremendous degree of respect for the nursing profession. I took the job very seriously and I gave it my all. I accept that my judgement at the time in question in areas of Professional Boundaries, decision-making was impacted by doing too many shifts which resulted in fatigue and burnout. At the time I felt it was my responsibility to say yes to all staff shortages in order to help my colleagues. The past two and a half years have given me the opportunity to look after myself better and to identify the warning signs that I may be overdoing work. I agree with the Expert review report that I did make several errors in the care of this patient. After further education and reflection, I believe that I did make those errors, without intending to do so. I mistakenly and unknowingly crossed boundaries with good intention without enough consideration of the implications or consequences. Although I don't have any plans to return to nursing, should I ever seek the opportunity to resume nursing practice, I would endeavour to not repeat those same mistakes and be more conscious in imbibing these lessons in my practice. 1. We note those remarks. Consideration 1. The only basis on which suspension of the practitioner's registration is sought is that he is guilty of professional misconduct. For the reasons given above, we have not found him so guilty. Accordingly, even if we were otherwise minded to do so, we could not have decided that if the practitioner were still registered the Tribunal would have suspended or cancelled his registration. 2. Instead, the Commission asks us, effectively, to issue a reprimand. We note that, as conceded by the Commission, s 149A of the National Law allows for reprimands to be given in the case of registered practitioners. However, the practitioner is not registered. We decline to make any formal reprimand as we do not accept that we have the power to do so. We do not propose to attempt to overcome the lack of power by using the form of words suggested by the Commission. 3. These public reasons will stand as a specific deterrent to the practitioner, a general deterrent to the profession, and as a statement of the inappropriateness of the practitioner's misconduct. Costs 1. This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 2. However, the Commission has been successful as to Complaint One, but unsuccessful as to Complaint Two. Our preliminary view therefore is that the Commission should not receive all of its costs. 3. We direct the Commission to provide submissions on costs to the Tribunal and the practitioner within two weeks, with the practitioner responding within a further two weeks. The Commission may reply if necessary within a further week. 4. If it becomes necessary for the Tribunal to determine this issue, we propose to decide the matter "on the papers", and without a hearing. If either party opposes that course, they should address that matter in their submissions. Conclusion 1. The Tribunal orders: 1. The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW). 2. The respondent is not guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW). 3. The applicant is to provide submissions on costs to the Tribunal and the respondent within two weeks, with the respondent responding within a further two weeks. The applicant may reply if necessary within a further week. 4. In the first instance, these reasons are to be published to the parties only, and not on NSW Caselaw. This is to allow the respondent the opportunity to seek a non-publication order in relation to par [11]. If he wishes the Tribunal to redact that paragraph, he should provide submissions to the Tribunal within seven days of publication of the reasons to him. The applicant may respond within a further seven days. 5. An order pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or disclosure of the contents of par [11] of these reasons. ********** 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: 22 May 2023