Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wilton [2023] NSWCATOD 153 Hearing dates: 26, 27 April 2023, 3 August 2023 Date of orders: 23 October 2023 Decision date: 23 October 2023 Jurisdiction: Occupational Division Before: S Dunn, Senior Member S Schulz-Robinson, Senior Member J O'Baugh, Senior Member R Leontini, General Member Decision: 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (National Law) the registration of Vicki Wilton (Respondent) as a nurse is cancelled. 2. Pursuant to s 149C(7) the Respondent may not apply for a review of Order 1 for a period of 6 months from the date of these orders. 3. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the Health Care Complaints Commission's costs as agreed or assessed. Catchwords: HEALTH – professional registration and discipline – nurse – boundary violations - unsatisfactory professional conduct – improper or unethical conduct – professional misconduct – was the conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration – appropriate protective orders - cancellation of registration Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 139B, 139E and 149C Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Gayed v Walton [1997] NSWCA 121 Health Care Complaints Commission v Andrews [2021] NSWCATOD 208 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 Health Care Complaints Commission v Grygiel [2019] NSWCATOD 123 Health Care Complaints Commission v Litchfield [1997] NSWCA 264; [1997] NSWLR 630 at 638. Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Health Care Complaints Commission v Moses (No 2) [2019] NSWCATOD 190 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Vicki Louise Wilton (Respondent) Representation: Counsel: S McCarthy (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Nursing and Midwives' Association (Respondent) File Number(s): 2022/00304439 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the persons set out in the schedule to the complaint is prohibited reasons for decision Introduction 1. This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Vicki Louise Wilton, following a determination by the Director of Proceedings of the HCCC to prosecute Complaints against Ms Wilton. Ms Wilton is currently registered under the Health Practitioner National Law (National Law) as a registered nurse with conditions including that she practice under indirect supervision in accordance with the Nursing and Midwifery Council of NSW (the Council) regulatory supervision policy. 2. The Complaints against Ms Wilton are that she failed to observe professional boundaries with a patient, Patient A. The Complaints are that she is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and/or (l) of the National Law and that she is guilty of professional misconduct under s 139E of the National Law. 3. The HCCC bears the onus of proof of the Complaints. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41; Gautam v Health Care Complaints Commission [2021] NSWCA 85; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24]. 4. If the Tribunal finds the Complaints against Ms Wilton to have been proved the HCCC seeks an order cancelling her registration as a nurse pursuant to s 149C(1)(b) of the National Law with a non-review period of 12 months. 5. In these reasons the Applicant is referred to as the Applicant or the HCCC and the Respondent is referred to as the Respondent or Ms Wilton. The proceedings in the Tribunal and the material before the Tribunal The hearing of the proceedings on 26 and 27 April 2023 1. The HCCC relied on: 1. A bundle of documents served by the HCCC and received by the Tribunal on 31 March 2023 comprising 652 pages including a statement made by Patient A and an independent expert report dated 7 March 2022 from Ms Carol Martin (Exhibit A1); 2. An Evidentiary Certificate from the Council dated 21 December 2022 (Exhibit A2); 1. The Respondent relied on a bundle of documents served by the Respondent and received by the Tribunal on 21 March 2023 which included a statement made by Ms Wilton on 6 March 2023, reference letters and a letter dated 6 March 2023 from Ms Wilton's Clinical Psychologist, Ms Sharon Black (Exhibit R1). 2. Ms Wilton gave evidence and was cross-examined. 3. Ms Martin was also called and was briefly cross-examined. 4. On 27 April 2023 after the close of evidence and before submissions were made, the Tribunal invited the Respondent to consider whether she wished to put on a further psychological report for the Tribunal's consideration. The Respondent indicated that she would like the opportunity to do so. Accordingly, orders were made for the filing and service of any further psychological report she may intend to rely on and any evidence in reply, and the proceedings were adjourned part heard to 3 August 2023. The hearing of the proceedings on 3 August 2023 1. At the hearing on 3 August 2023 the Applicant tendered an Evidentiary Certificate from the Australian Health Practitioner Regulation Agency (AHPRA) dated 5 May 2023 (Exhibit A3). 2. The Applicant also relied on written closing submissions dated 20 July 2023. 3. The Respondent tendered a letter dated 13 June 2023 from Julie Dombrowski (Psychologist) outlining an assessment of Ms Wilton's emotional and psychiatric functioning at the time of the conduct the subject of the Complaints, together with a copy of Ms Dombrowski's resume (Exhibit R2). The Respondent also tendered a letter dated 5 May 2023 from the NSW Nurses and Midwives' Association to Legal Psychology Group Australia seeking an assessment of Ms Wilton (Exhibit R3). 4. The Respondent relied upon written submissions dated 26 April 2023 and supplementary submissions dated 2 August 2023. Relevant Legislation National Law 1. It is convenient to set out below those provisions of the National Law relevant to this application. 2. Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; … (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; … 1. Section 3A of the National Law, which is an additional provision for NSW, 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. (2) The other guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3B of the National Law, which is also an additional provision for NSW, relevantly provides: 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 defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. 1. Section 139B of the National Law, which is an additional provision for NSW, 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 an additional provision for NSW, 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 144, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. 1. Section 149, which is an additional provision for NSW, provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if— (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal. 1. Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) 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 The Complaints 1. Complaint One is that the Respondent is guilty of unsatisfactory professional conduct pursuant to s139B(1)(a) and/or s139B(1)(l) of the National Law. 2. The Particulars of Complaint One are that: 1. Between 11 July 2020 and 8 December 2020, the Respondent failed to observe professional boundaries when the Respondent formed a close personal relationship with Patient A. 2. Between 11 July 2020 and 8 December 2020, the Respondent failed to observe professional boundaries with Patient A, when the Respondent sent numerous text messages to the mobile phone of Patient A, which were: (a) Inappropriate, in that, many of the text messages did not serve a therapeutic purpose; and (b) Unprofessional, in that, the Respondent criticised or commented on her colleagues and other patients at the Agency in some of the text messages. 3. Between 11 July 2020 and 8 December 2020, the Respondent failed to observe professional boundaries with Patient A where the Respondent made regular and numerous telephone calls to Patient A, which were: (a) inappropriate in that they did not serve a therapeutic purpose; and (b) unprofessional in that the Respondent criticised or commented on her colleagues and other patients at the Agency. 4. Between 11 July 2020 and 8 December 2020, the Respondent inappropriately told Patient A that Patient A could not tell anyone about their friendship. 5. Between 11 July 2020 and 8 December 2020, the Respondent failed to observe professional boundaries when the Respondent met with Patient A, in person, on several occasions for social outings. The social outings included: (a) meeting for coffee (b) going to dinner (c) going to licensed venues (d) spending special occasions, such as birthday celebrations, together (e) Patient A attended the Respondent's home. 6. Between 11 July 2020 and 8 December 2020, the Respondent failed to observe professional boundaries when the Respondent, on occasion, drank alcohol in the presence of Patient A. 7. Between 11 July 2020 and 8 December 2020, the Respondent failed to observe professional boundaries when the Respondent relied on Patient A to look after and care for her dog, in her absence. 8. In December 2020, the Respondent failed to observe professional boundaries, when the Respondent told Patient A that it was her intention for Patient A to be a beneficiary of her will. 9. Between 11 July 2020 and 8 December 2020, the Respondent failed to observe professional boundaries when the Respondent inappropriately disclosed personal information about herself to Patient A. 10. Between 11 July 2020 and 8 December 2020, the Respondent failed to observe professional boundaries, when the Respondent, on numerous occasions, asked Patient A to buy items for her, including but not limited to meal replacement shakes. 11. Between 11 July 2020 and 8 December 2020, the Respondent inappropriately continued the therapeutic relationship with Patient A, in circumstances where a close personal friendship had developed. 12. Between 11 July 2020 and 8 December 2020, the Respondent breached Principle 4.1 (a), of the Nursing and Midwifery Board of Australia (NMBA) Code of Conduct, by failing to recognise the inherent power imbalance between herself and Patient A. 13. Between 11 July 2020 and 8 December 2020, the Respondent breached Principle 4.1(b) of the NMBA Code of Conduct, by failing to actively manage Patient A's expectations and failing to set professional boundaries in their relationship. 14. Between 11 July 2020 and 8 December 2020, the Respondent breached Principle 4.1(e) of the NMBA Code of Conduct, by failing to disclose the close relationship with Patient A, with an appropriate person. 15. Between 11 July 2020 and 8 December 2020, the Respondent breached Principle 4.1 (g) of the NMBA Code of Conduct, by failing to facilitate arrangements for the transfer of care of Patient A. 1. Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(a). 2. The Particulars of Complaint Two are that: 1. Between December 2019 and December 2020, the Respondent provided poor clinical care to Patient A, in that the Respondent made inadequate clinical notes to document the various clinical sessions she held with Patient A. 2. Between December 2019 and December 2020, the Respondent provided poor clinical care to Patient A, when the Respondent held clinical sessions with Patient A in inappropriate settings, namely the Respondent's home, restaurants, clubs, nurseries and shopping centres. 1. Complaint Three is that the Respondent is guilty of professional misconduct under section 139E of the National Law. The Particulars of Complaint One and Two are relied upon individually. In the alternative, the HCCC says that when two or more of the particulars of Complaint One and/or Two are taken together, a finding of professional misconduct is justified. 2. Ms Wilton's position is that she: 1. admits all Particulars of Complaint One, other than Particular Eight; 2. does not admit Particular One of Complaint Two; 3. partially admits Particular Two of Complaint Two; and 4. considers that it is a matter for the Tribunal to determine whether Complaint Three is proved. The evidence 1. The following facts emerge from the evidence and are not in dispute unless indicated otherwise. Ms Wilton's relationship with Patient A 1. Ms Wilton was first registered as a registered nurse in 1993. She completed a Graduate Diploma in Mental Health Nursing in 2010 and a Masters of Mental Health Nursing in 2013. She has worked as a registered nurse in various different mental health settings since 2009. From October 2018 to September 2020 she worked as a registered nurse at the Lakeside Clinic Warners Bay Hospital. The Lakeside Clinic was a private mental health facility which catered to mental health patients requiring inpatient care for a variety of psychiatric conditions. 2. While working at the Lakeside Clinic, Ms Wilton met Patient A who was an inpatient. Patient A was a 32-33 year old woman with a complex mental health history including depression with psychosis, suicidality and obsessive compulsive disorder. The Discharge Summary from a 14 day stay at Lakeside Clinic in June 2020 noted Patient A's diagnosis on discharge as being Bipolar II Disorder, Borderline Personality traits and Eating Disorder NOS. 3. Between October 2019 and December 2020 Ms Wilton also worked on a casual basis at the Nursing Collective (the Agency). The Agency is a private health care agency which provides mental health community nursing support services to patients who have been referred to it by a psychiatrist at the Lakeside Clinic. 4. Patient A was at various times between October 2019 to December 2020 an inpatient at the Lakeside Clinic and a patient of the Agency. Patient A's sessions with the Agency were funded through the National Disability Insurance Scheme. 5. The registered proprietor of the Agency, Person B, was primarily responsible for providing care to Patient A when she was a patient of the Agency. 6. Ms Wilton provided care to Patient A on ten occasions between December 2019 and, it seems, December 2020 when Person B was on leave or was otherwise unable to attend to Patient A. These sessions were held at various different locations including coffee shops, restaurants, walks and a club. Person B did not provide Ms Wilton with a care plan for Patient A. 7. There are file notes of six of these sessions in the materials before the Tribunal. Those sessions took place on 16 December 2019, 21 December 2019, 26 December 2019, 31 December 2019, 5 June 2020 and 28 August 2020. 8. Ms Wilton destroyed the notes of the other four sessions because, she says, she was unable to submit them once her employment had been terminated and for confidentiality reasons, which is why we cannot be sure about the date of their last session. However, in the materials before the Tribunal, Ms Wilton describes her last session with Patient A as being in December 2020. 9. Ms Wilton described her role at the Agency in her curriculum vitae as being the "provision of social support to clients with low-risk mental health issues" which involved "taking clients to venues of their choosing such as cafes, restaurants and shopping centres for social activities". While Ms Wilton was not formally interviewed for the role, the Position Description for her role describes the role as "Casual Community Nurse" and notes that it is an essential requirement of the role that the employee be a registered or enrolled nurse with current authority to practice. Under cross-examination, while Ms Wilton was not sure if she had seen the Position Description, she agreed that, while her role was not an "acute mental health role", she was nonetheless engaged by the Agency and working as a community nurse. 10. Under cross-examination Ms Wilton confirmed that she was aware that Patient A had a history of mental health issues with a variety of diagnoses including depression and anxiety and that those mental health issues made Patient A an inherently vulnerable person. 11. By July 2020 a friendship had developed between Ms Wilton and Patient A. 12. Between 11 July 2020 (which was the first time Ms Wilton sent a text message to Patient A from her private mobile phone) and 8 December 2020 (when the friendship came to an end) Ms Wilton and Patient A texted or phoned each other almost every day. Phone calls took place and/or text messages were exchanged sometimes late at night. Some phone calls were very lengthy, with at least one call continuing over almost three hours late at night. During this period Ms Wilton and Patient A also met in person for social outings including meeting for coffee, going out to dinner, going to licensed venues and spending special occasions (such as birthday celebrations) together. On some of these occasions Ms Wilton drank alcohol. During this period Patient A attended Ms Wilton's home to care for Ms Wilton's dog. During this period, on occasion, Patient A also purchased items for Ms Wilton at Ms Wilton's request from the pharmacy where she worked. 13. Ms Wilton told Patient A that she could not tell anyone about their friendship. 14. In evidence before the Tribunal are 93 pages of text exchanges between Ms Wilton and Patient A including the following exchanges: Sun, 12 July 9.00pm Ms Wilton: Yeah, ok, the borderline patients here are really getting to me tonight [Date obscured] 4.11pm Ms Wilton: Ok I guess because we are friends I feel I need to be different on the days [Person B] is paying me Wed, 29 July 1.06 am -1.07am Patient A: Feeling real is very scary for me. I've felt numb for so long. I was always extremely emotional and hated my emotions so I shut them out. I avoid a lot of things because I know they will make me emotional Ms Wilton: Anywanight sweet pea xxxxx Patient A: Good night my beautiful Vicki. I love you xx Ms Wilton: Love you kiddo xxx Thu 27 Aug 11.34pm Patient A: see you tomorrow hun xxx with coffee Fri 28 Aug 11.29am – 11.53am Ms Wilton: I will still be getting ready when you get here, stuck on the bloody phone Patient A: All good don't stress At Guru waiting for coffees Ms Wilton: Ok just come up through my place Sat, 29 Aug 7.28pm – 7.32 pm Ms Wilton: In control? I am having 2 glasses of wine when I get home. Out of control Me that is lol Patient A: You deserve that wine. Two glasses, that's very controlled. I'm not so much in control. Ms Wilton: Ok one day at a time Mon 14 Sep 11.43pm Patient A: Becoming friends with you is one of the best things that's happened to me. I love having you in my life being your friend. Ms Wilton: I love you too, you are an angel xx Thu, 29 Oct 8.07pm – 9.03 pm Ms Wilton: I really think you are doing well. I need to take a step back, I can't cope with anything much to do with WBP. I hope you get good uni results. Look after yourself [Patient A]. Patient A: Are you saying you're taking a step back from me? I just want to make sure I understand I'm not angry, I just need to know if you mean you're taking a step back from me and our friendship? Ms Wilton: Yeah I think that is best. I don't want to get involved with your care anymore. It just annoys me and that isn't good for you. Thank you for all your help with Daisy [the dog] xxx Patient A: so that's it? No more contact or help with Daisy? Ms Wilton: We can text now and then. I just don't feel I can put anymore input into your mental health/illness You will be ok. I am sorry I don't believe in what [you] are doing. Please take care. Thu, 29 Oct 11.14pm Ms Wilton: Oh well don't respond. All the best. I will let [Person B] know I am not able to see you whilst she is away and say working full time is too difficult. All the best [Patient A]. I won't be in touch Sat, 31 Oct 4.06pm Ms Wilton: Do you want to meet in car park at Warners Bay at 630 Patient A: Yep Ms Wilton: what do you feel like eating 1. In other text exchanges Ms Wilton was critical of other staff at Warners Bay Hospital, shared personal issues with Patient A and sought medical advice from Patient A. 2. In a statement provided to the HCCC in July 2021 Patient A said that on the last night she and Ms Wilton had gone out together, a Saturday in December 2020, they went to a club together. She said that that night Ms Wilton consumed a few drinks and told her that she wanted her to be the beneficiary of her will. 3. On 8 December 2020 Patient A emailed Person B and advised her that she had been seeing Ms Wilton outside of her sessions with her. 4. In that email Patient A wrote: I'm so sorry if I have let you down [Person B]. It is only occurring to me now what the consequences may be, and I am shaking. Like I mentioned, Vicki doesn't know I have said, or was going so say, any of what I have. I know what I did was wrong and I've had an increasingly unpleasant and uncomfortable feeling about it for a while now. I am so sorry [Person B]. I am so so sorry. 1. Person B advised Patient A to terminate her friendship with Ms Wilton immediately. Person B asked Ms Wilton to resign her employment at the Agency, which she did, and Person B notified AHPRA of the complaint. 2. After that Ms Wilton let Patient A know that she had received an email from Person B and that she would no longer be having any association with her. She has had no further contact with Patient A since that time. Ms Wilton did not make arrangements for the transfer of Patient A's care. Ms Wilton confirmed under cross-examination that Person B was in the UK at that time and did not direct her to destroy any notes of her sessions with Patient A. 3. Patient A was admitted to Warners Bay Hospital on 10 December 2020 and discharged on 17 December 2020. The discharge summary stated: This 33 year old woman was admitted in crisis secondary to boundary issues between her and a new therapist. 1. In her statement provided to the HCCC Patient A said: The friendship [with Ms Wilton] was everything I ever wanted, to mean so much to somebody else. I think about her a lot and miss her. We were very close and it has left a huge hole in my life… 1. After a complaint was raised, Ms Wilton initially denied the allegations against her and that she had had a friendship with Patient A. However, in proceedings under s 150 of the National Law in April 2021, Ms Wilton accepted that she had breached professional boundaries. The Council decided that conditions should be imposed on Ms Wilton's registration including that she practise under indirect supervision. 2. Since that time Ms Wilton has practised under the supervision of Ms Pamela Davis. However, under cross-examination Ms Wilton said that, at the time of the hearing, she was currently on leave without pay. 3. In her 6 March 2023 statement before the Tribunal, Ms Wilton admitted to most of the particulars of Complaint One but wished to provide "context". 4. In respect of Particular 5, namely that she and Patient A met on occasion at social venues, she said that some of these meetings were, in fact, sessions with Patient A. She said it was a role of the Agency to provide social support to individuals with mental health concerns in social arenas. 5. In respect of Particular 8, namely that she told Patient A that it was her intention to make her beneficiary of her will, she said she did not recall a conversation to that effect but that if she did say that and it caused Patient A distress, she was deeply sorry for that. 6. In cross-examination on this point Ms Wilton said that she did not recall saying to Patient A that she intended to make her beneficiary of her will, but that she may have said it as a "throwaway line" or as a "joke". 7. As to Particular 15, namely that she failed to facilitate arrangements for the transfer of care of Patient A she said: When [Person B] informed me of my termination of employment via email she was in the UK. She specified in her email to not have any further contact with Patient A nor herself. In turn. I was unable to provide or facilitate a transfer of care for Patient A back to [Person B] but assumed as [Person B] was her primary care provider within The [Agency], she would take over that role and/or outsource this support to the other clinician employed by The [Agency]. I was also aware Patient A had several other supports including her Psychologist, GP, and Private Psychiatrist. 1. In her statement dated 6 March 2023 she said in respect of Complaint Two, Particular One, namely that she made inadequate notes to document the sessions she had with Patient A, that there were six clinical entries for her "paid interventions" (not two, as originally alleged by the HCCC) and that she had destroyed her notes of four of the ten sessions she had held with Patient A. 2. In relation to Complaint Two, Particular Two, namely that she held clinical sessions in inappropriate settings including her own home, she said that whilst Patient A did attend her residence on occasion she denied that any clinical sessions were held in her home. Carol Martin Report 1. The HCCC relied on the expert report of Carol Martin, a mental health nurse who has practised for over 40 years. In short, Ms Martin's opinion was that Ms Wilton's conduct: 1. In developing a close personal relationship with Patient A and maintaining a therapeutic relationship in circumstances where a personal friendship had developed; 2. In texting Patient A in the manner that she did and in regularly telephoning her; 3. In telling Patient A that she should not tell anyone about their friendship; 4. In meeting Patient A socially outside of scheduled consultations; 5. In drinking alcohol when socialising with Patient A; 6. In asking Patient A to attend her home and care for her pet; and 7. In disclosing personal information about herself to Patient A; fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. She also said that, in her opinion, Ms Wilton's conduct in requesting Patient A to purchase items for her from the chemist fell below that standard. 1. Ms Martin was also of the view that while meeting in social settings can be appropriate at times and result in therapeutic benefit, it needs to be made clear when meeting in a social setting if the caregiver is "on duty" and when they are not. In this case, Ms Wilton and Patient A often met in a social setting attempting to have a scheduled consultation. This blurred boundaries and led, she said, to the development of a friendship. Once that friendship had formed Ms Martin said that it was impossible to maintain professional boundaries while also engaging with Patient A in a social setting. In her view holding scheduled consultations in a social setting in this case also fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. 2. Ms Martin said: Mental health clinicians know the importance of setting and maintaining boundaries with clients. Crossing boundaries puts the nurse-patient relationship at risk, breaches patient trust and can cause reluctance of the client to engage with appropriate services. 1. Ms Martin had originally been instructed by the HCCC that Ms Wilton had only kept notes of two of her clinical sessions with Patient A. However, it was apparent from the materials before the Tribunal that there were notes of six of her sessions with Patient A. 2. On the day of the first hearing, Ms Martin was provided with the additional four notes which were available. When asked whether, having reviewed all six of the notes which were available, that changed her view as to Ms Wilton's conduct in respect of her note-keeping, she said that it did. She said that, having reviewed those notes, in her opinion, Ms Wilton's conduct fell below the standard expected of a practitioner of her training or experience, but not significantly below. Reasons which led to her conduct and steps taken by Ms Wilton since the Complaint 1. In her 6 March 2023 statement, Ms Wilton said: I am writing to you to acknowledge my professional error in judgment when I breached boundaries with Patient A by forming a friendship with her which continued to the 8th December 2020. I am deeply remorseful for this behaviour and since the initial complaint have reflected heavily on this matter. I engaged with a psychologist, Sharon Black, via the Mental Health Care Plan Scheme addressing not only my distress around the complaint, but also to gain an understanding of the possible personal reasons which may have led to this breach. I have ceased sessions with Sharon Black as I gained as much insight and awareness I could via our sessions. 1. In cross-examination Ms Wilton was taken to a Supervisor Report dated 26 October 2021 where, under the heading "Reflections by Practitioner", Ms Wilton stated "one of the most important things resulting from this process for me is realising that in order to be a good clinician, you must be aware of your own limitations and take the time to care for your own mental health". 2. Ms Wilton was asked how she would identify her limitations. She said that she is not working as much as she was before, she is not doing overtime. When she is dealing with difficult clients, she takes a break and talks to her colleagues. She goes for walks and has massages to improve her own mental health. If she returned to full time work, she would propose to continue supervision with her current supervisor who is very supportive and she is proposing to see another psychologist. She said that she is more aware of the impact that working in mental health for a long time has had on her own mental health. 3. Ms Wilton also said in answer to a question from the Panel, that if in future she felt there was a possibility that boundaries might be violated again with another patient, she would get someone else to take over that patient's care or discuss it with someone. 4. In answer to a question from the Panel as to what personal factors contributed to her behaviour, Ms Wilton said that she had recently moved to Lake Macquarie so had changed jobs, her dog was unwell and she was building a "place". She was personally feeling unsettled and burnt out at work and had a lot of stresses at the time. 5. In her 6 March 2023 statement Ms Wilton said that she has reviewed the Code of Conduct, Standards of Practice and Guide to Continuing Professional Development and complies with Mandatory Training Requirements and in-services provided by her current workplace. She said she has continued to engage in self-directed learning and readings around professional boundaries including: 1. an online Webinar on the Therapeutic Relationship which explores, amongst other things, the importance of maintaining professional boundaries; 2. an e-learning module on My Professional Boundaries – promoting safe relationships in a caring, compassionate and emphatic way whilst ensuring boundaries are upheld; and 3. Managing Difficult Interventions in Clinical Practice which delves into, amongst other things, the code of conduct when working with people experiencing mental illness. 1. According to her CPD Record these modules were respectively 1.5 hours, 0.5 hours and 0.25 hours in length. 2. In addition to the training mentioned by Ms Wilton, her CPD Record also shows that she has done self-directed learning on the ICN Code of Ethics for Nurses (twice) (1 hour each), A Nurses Guide to Professional Boundaries (0.25 hours) and Professional Boundaries in Nursing (0.5 hours). 3. Ms Wilton has provided the Tribunal with a letter dated 6 March 2023 addressed to "To Whom It May Concern" from her Clinical Psychologist Sharon Black. That letter states: Ms Wilton has requested a letter to confirm her attendance in psychological therapy and the nature of said therapy. Ms Wilton was referred by her general practitioner under the better Access to mental Health Scheme for psychological treatment. Ms Wilton has attended 17 sessions of therapy between 05-02-2021 and the 25-05-2022. During this period, Ms Wilton worked towards establishing healthy boundaries in personal and professional relationships. Ms Wilton remained engaged and motivated throughout the treatment period. 1. Ms Wilton has also provided a reference letter dated 17 March 2023 from Ms Pamela Davis who has supervised Ms Wilton, as well as monthly Supervisor Reports from May 2021 to March 2023 which report her knowledge, experience and performance are at a high standard. In her reference letter Ms Davis said: I believe Vicki has good insight into where she went wrong. Vicki is regretful to have caused any harm and has learned about personal boundaries and responsibilities from this matter. … In the course of her work as a mental health nurse she always displays a genuine concern for those she is working with and does her utmost to help them achieve the outcomes they are looking for. Vicki advocates for her clients, always striving to ensure they receive the absolute best standard of care and treatment available. … Vicki is a skilled mental health nurse, very knowledgeable and professional. I have no doubt whatsoever about Vicki's ability to provide safe and competent nursing care to anyone in the community. 1. Ms Wilton also relies upon a further reference letter from Denise Flanders, a registered nurse, with whom she has worked at the State Wide Mental Health Line and a Mental Health Emergency Care Rural Access Program for the past 2.6 years. Ms Flanders stated: As an RN Vicki has shown integrity and understanding when assisting clients with Borderline Personality Disorder by building a therapeutic relationship with the individual, particularly in crisis situations. … Vicki did appear to overstep boundaries with this client & she does acknowledge her wrong doing & feels very remorseful for her misconduct. In saying this Vicki has upskilled her knowledge & Professional Development via MHL doing several online training courses to help improve her education. … This has been a very traumatic experience for Vicki & I feel she is overcoming these issues as she [sic] willing to move forward & learn by ones [sic] errors as we are only human. … I would employ Vicki at any service level as RN as I feel she is very competent in all aspects of Nursing whether Mental Health or general. 1. Ms Wilton also relies upon the report of Julie Dombrowski dated 13 June 2023. 2. Ms Dombrowski assessed Ms Wilton via video conference over three hours in May 2023. She reported: [Ms Wilton] described experiencing increased emotional reactivity, panic attacks, heightened anxiety, depressed mood, suicidal ideation and a general sense of overwhelm after the complaint of professional misconduct was first made in 2020. She told me she was experiencing some psychosocial stressors (arising from lengthy commutes and financial strain), but did not report any symptoms of burnout, depression, anxiety, panic or grief at the time of the professional misconduct. … Since the professional misconduct, she has accessed psychological treatment (from Sharon Black) in 2021… to manage her difficulty with mood, anxiety and panic arising from her professional misconduct. … At the time of the professional misconduct, Ms Wilton was living with a close friend and working up to 52 hours per week across three different jobs… She told me she was not experiencing any difficulties with her mental health (eg depressed mood, anxiety, panic), burnout or vicarious trauma associated with her work…She denied any problematic use of alcohol, illicit substances or prescription medication at that time. 1. Ms Dombrowski said that Ms Wilton expressed remorse for her conduct and disappointment with herself for not identifying the breach sooner and for not better managing the situation. 2. Ms Dombrowski also said that Ms Wilton had demonstrated her learning from the professional development programs she has since undertaken: …which included identifying appropriate nurse-patient boundaries, identifying early warning signs (e.g wanting to keep secrets with the patient, believing she is the only person who truly understands the patient), understanding the impacts for patients (e.g causing patients to distrust health professional and disengage from services), and how to access support to manage potential breaches in the future(e.g regular supervision and consultation, maintaining better work/life balance and accessing personal counselling when needed). She also contracted the services of a psychologist (Ms Sharon Black) to further explore and resolve any personal vulnerabilities that may have contributed to her misconduct. 1. Ms Dombrowski said that Ms Wilton provided no information to suggest that her conduct was a result of an acute or chronic mental illness. Rather, she said, it appeared to have arisen from a limited understanding of appropriate professional boundaries and "lax workplace practices and supervision". She said that Ms Wilton has undertaken a number of strategies to better understand her actions, build her insight and remediate her skills and was able to demonstrate strategies she could implement to prevent further conduct of a similar nature "which was lacking at the time" of the conduct. 2. She concludes: In my opinion, this newly acquired knowledge and current level of insight, combined with her motivation to maintain professional standards in nursing, and prevent harm to patients will reduce the likelihood of repeat misconduct of a similar nature. Complaints – consideration Complaint One 1. Complaint One is admitted except for Particular 8. 2. We find that the evidence put forward by the HCCC proves the allegations in each of the Particulars of Complaint One to the Briginshaw standard. 3. As to Particular 5, while Ms Wilton said that some of the occasions when she and Patient A met in social settings were for the purposes of a session with her, she accepts that she otherwise did meet Patient A in these social settings outside of those sessions. 4. As to Particular 8, Patient A has given a statement in which she has said that on the last night they went out together Ms Wilton told her that she wanted Patient A to be the beneficiary of her will. Ms Wilton admitted that she consumed alcohol on that occasion and, while she does not remember saying that, conceded in cross-examination that she may have said that as a "joke". We think it is highly unlikely that Patient A would have made up such a detail and we accept her evidence in this regard. 5. As to Particular 15, while Ms Wilton has sought to explain why she failed to facilitate arrangements for Patient A's care on the termination of her employment, she does not deny that she failed to do so. Moreover, we note that, at that time, Person B was out of the country and not in a position to care for Patient A herself. 6. Having found the Particulars of Complaint One proved, we must then consider whether the Respondent is guilty of unsatisfactory professional conduct under: 1. s 139B(1)(a) of the National Law because she has engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised by her is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. s 139B(1)(l) of the National Law because she has engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 1. "Improper" and "unethical" and not defined in the National Law. The Tribunal considered the meaning of those terms in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[55] stating as follows: "51. The words 'improper' and 'unethical' are not defined in the National Law. The Macquarie Dictionary defines improper as follows: '1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular.' 52. Unethical is defined as follows '1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct.' 53. The word improper was the subject of discussion by. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7. The Chief Justice said: '… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".' 54. Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term 'impropriety' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. 55. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: '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. …'" 1. The same conduct can amount to unsatisfactory professional conduct under both s 139B(1)(a) and s 139B(1) (l) of the National Law: Health Care Complaints Commission v Grygiel [2019] NSWCATOD 123 at [62] – [66]. 2. Ms Martin's opinion was that each Particular of conduct, other than Particular Ten of Complaint One (asking Patient A to purchase items for her) fell significantly below the standard expected of a practitioner of Ms Wilton's training and experience. In our view each Particular of Ms Wilton's conduct, including Particular Ten, was significantly below the standard expected of a practitioner of her training and experience. We also consider each Particular of Ms Wilton's conduct was improper or unethical as those terms are understood. 3. Accordingly, in respect of Complaint One, we find that Ms Wilton is guilty of unsatisfactory professional conduct under s 139B(1)(a) and s 139B(1)(l). Complaint Two 1. As to Complaint Two, Particular One, we do not find that this Particular has been proved. 2. There is in evidence before the Tribunal notes of six of the sessions that Ms Wilton had with Patient A. Each of them are relatively short and in a similar format. 3. By way of example, her note of a session held on 31 December 2019 reads: Community visit – coffee Shop at Glendale. [Patient A] has found Xmas period difficult – eating issues out of control. Struggles to discuss same. Continues to utilise mood [indecipherable] as per Dr Parker. Nil thoughts of OSH/suicide. Continues with employment. Plan: Meet at Canes coffee shop as requested by [Patient A] 3/1/20 17.15. 1. As Ms Martin observed in her evidence, each of the notes provides a reflection as to Patient A's mental state and notes that certain strategies were discussed. However, there are few mentions of specifically what those strategies were or a review plan, other than, generally, to meet up again with either Ms Wilton or Person B. If another carer were to review the notes, it would be difficult to know exactly what strategies had been suggested or attempted, what may have worked and what the overall plan for her care was. We agree with Ms Martin that the standard of the notes falls below, but not significantly below, the standard expected of a practitioner of Ms Wilson's training and experience. 2. It is of concern that Ms Wilton destroyed notes of four other sessions with Patient A, particularly as she admitted in cross-examination that she understood the importance of notes and maintaining adequate records of a patient's care. 3. However, Particular One of Compliant Two is directed to the adequacy of the notes made to document the various clinical sessions Ms Wilton had with Patient A. In the absence of those notes, it is not possible to form a view on the adequacy of the four notes which have been destroyed. 4. Accordingly, we do not think Particular One of Complaint Two has been proved on the evidence before us. 5. As to Particular Two of Complaint Two, Ms Wilton accepts that she had clinical sessions with Patient A in social settings, but maintains that she did not hold any clinical sessions with Patient A in her home. 6. The HCCC point to a text exchange extracted at paragraph 45 above and reproduced below for convenience: Thu 27 Aug 11.34pm Patient A: see you tomorrow hun xxx with coffee Fri 28 Aug 11.29am – 11.53am Ms Wilton: I will still be getting ready when you get here, stuck on the bloody phone Patient A: All good don't stress At Guru waiting for coffees Ms Wilton: Ok just come up through my place 1. One of the six notes of Ms Wilton's sessions with Patient A before the Tribunal is an electronic record of a clinical session with Patient A in Warners Bay Café on 28 August 2020. The HCCC submitted that the above text exchange suggests that the 28 August 2020 session in fact occurred at Ms Wilton's home and not at the Warners Bay Café as the record suggests and that the Tribunal should find that Ms Wilton was not telling the truth in respect of this meeting. While one reading of the text exchange might suggest that the session that day could have been at Ms Wilton's home, it seems to us that there are other possible explanations open. For example, the reference to coming up "through my place" might suggest that they met at Ms Wilton's house there on their way elsewhere for their session. Ms Wilton was not asked about these texts in cross-examination. We do not consider that the HCCC has proved this aspect of Particular Two, namely that clinical sessions were held in Ms Wilton's home, to the Briginshaw standard. 2. To the extent that Ms Wilton held clinical sessions with Patient A in other social settings before their friendship had developed, Ms Martin's evidence was that meetings in such settings can be appropriate and therapeutic. However, we accept her evidence that after a friendship had developed, once boundaries had been blurred, it was not possible to maintain professional boundaries while engaging in a social setting. Accordingly, we find that Particular Two of Complaint Two is proved in respect of such clinical sessions as were held during or after July 2020. 3. Further, we consider that such conduct fell significantly below the standard expected of a practitioner with Ms Wilton's training and experience and was improper. Accordingly, we find that, in holding clinical sessions with Patient A in social settings during or after July 2020, Ms Wilton was also guilty of unsatisfactory professional conduct under s 139B(a) and s 139B(l). Complaint Three 1. The question we must then determine is whether the conduct we have found to be unsatisfactory professional conduct amounts to professional misconduct. 2. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], Basten JA explained: "19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …" 1. In assessing the seriousness of the conduct, it is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638; [1997] NSWCA 264. 2. The conduct we have found the Respondent engaged in was extremely serious misconduct and occurred over a period of approximately five months. 3. Ms Wilton was, at the time of the conduct, a nurse of some 23 years and an experienced mental health nurse. 4. Patient A was a vulnerable mental health patient and Ms Wilton was well aware of her vulnerability. Ms Wilton was aware that it was her obligation to put Patient A's needs first and of her fundamental obligation to maintain professional boundaries. 5. Ms Wilton's relationship with Patient A was wholly inappropriate. Ms Wilton was well aware that the relationship was inappropriate, aware that she was obliged to disclose professional conflicts and aware that she should have terminated the relationship appropriately, but nonetheless continued the relationship and sought to cover it up. 6. Ms Wilton's text exchanges with Patient A were wholly inappropriate. In these messages Ms Wilton complained about "borderline patients", even though that was one of Patient A's diagnoses. In her statement before the Tribunal Patient A said that she found this message hurtful. 7. Ms Wilton admitted under cross-examination that: 1. engaging by text message very late at night with a patient with emotional irregularity was wholly inappropriate; 2. in sending text messages criticising her colleagues at the Lakeside Clinic, she would have undermined Patient A's confidence in the health care system generally and more specifically in receiving care from the very people she criticised who were involved in Patient A's care at the Lakeside Clinic; 3. joking in text messages about being out of control, where control was a real issue for Patient A, and suggesting alcohol as a remedy for being out of control was wholly inappropriate; 4. in asking her to do errands for her, Ms Wilton put her own needs above Patient A's needs and, while she did not exploit Patient A financially, she nevertheless exploited Patient A for her own benefit; 5. her conduct in suddenly terminating her interactions with Patient A by text message late at night, telling her that she didn't want to be involved in her care anymore and that she would no longer be in touch with her was wholly unacceptable and not something that a compassionate nurse would say to a patient. We note that, as Ms Martin concluded, this clearly would have been traumatic for Patient A; 6. drinking alcohol in Patient A's presence might encourage Patient A to drink alcohol. 1. Ms Wilton used her position of power over Patient A for her own benefit and without regard for the clinical and therapeutic needs of Patient A. Not only did Ms Wilton's conduct have the potential to cause Patient A harm, it is clear that her conduct did, in fact, cause Patient A harm as she was re-admitted to Warners Bay Hospital after the relationship ended and has said that losing her friendship with Ms Wilton has "left a huge hole in her life". It is clear from Patient A's email to Person B in December 2020 advising her of the friendship that she felt a real sense of guilt about it. 2. We find that Ms Wilton's conduct is sufficiently serious to justify suspension or cancellation of her registration and, accordingly, that it is professional misconduct under s 139E of the National Law. Appropriate orders 1. The Complaints having been proved to the extent as set out above, it falls then to determine whether the Tribunal should exercise its disciplinary powers. Disciplinary orders - principles 1. Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. 2. The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield. However, that is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31]. 3. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA gave the following explanation at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. In the exercise of its protective jurisdiction, the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 2. As the Tribunal put it in Health Care Complaints Commission v Moses (No 2) [2019] NSWCATOD 190 at [28]: It is well-established that the orders which this Tribunal is empowered to make consequent upon a finding of professional misconduct are protective in nature, and consistent with the provisions of the National Law which are directed to the protection of the public from the misconduct of health practitioners. There are four elements to the consideration of what are appropriate protective orders. The first is the protection of the public from the conduct of the practitioner. The second is the deterrent effect which a protective order will have on the future conduct of a practitioner. The third is the deterrent effect which such an order will have on the conduct of other practitioners, so as to dissuade them from engaging in the same or similar misconduct. The fourth element is the enhancement of the integrity of the practitioner's profession and the confidence that the public may have in the practise of that profession. 1. As we have found Ms Wilton guilty of professional misconduct, it is open to us to cancel her registration under s 149C(1)(b) of the National Law. However, that outcome is not automatic: Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 at [4]. 2. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA noted at [101]: The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order. 1. The Tribunal was referred to two previous decisions of the Tribunal concerning boundary violations: Moses and Health Care Complaints Commission v Andrews [2021] NSWCATOD 208. The HCCC submitted that Andrews may provide guidance as to the appropriate protective orders to be made in this matter, while the Respondent submitted that Moses might provide guidance. 2. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal cautioned against the use of comparative cases in the determination of appropriate protective orders. The Court of Appeal noted that since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: Lee at [34]. Accordingly, we do not consider either Moses or Andrews to be of any assistance in this regard. 3. There may be circumstances where, although a practitioner has been found guilty of professional misconduct, the practitioner has demonstrated to the Tribunal that they have gained insight into their behaviour, have shown remorse, and have taken sufficient steps to address their behaviour such that the Tribunal may have comfort that the practitioner would not be likely to engage in conduct of a similar nature again. 4. However, this is not such a case. 5. Ms Wilton has expressed remorse for her conduct and it was clear to us from her presentation giving evidence that she is genuinely remorseful. 6. She has also clearly gained some insight as to the impact of her behaviour on Patient A. 7. However, we are concerned that Ms Wilton does not appear to have gained any real insight into why she behaved as she did. Ms Wilton really has not offered any clear explanation as to what led her to behave in the way that she did. 8. In answer to a question from the Panel in this regard, she said that she was "burnt out" and had a number of stresses in her life at the time. 9. However, Ms Dombrovski reported that Ms Wilton did not report to her any symptoms of burnout, depression, anxiety, panic or grief at the time of the conduct and told her that she was not experiencing any difficulties with her mental health at that time. 10. Ms Dombrovski said that Ms Wilton engaged Ms Sharon Black to explore and resolve any personal vulnerabilities that may have led to her conduct. 11. However, the report provided by Ms Black tells us no more than that Ms Wilton attended 17 sessions of therapy between February 2021 and May 2022 and that Ms Wilton "worked towards" establishing healthy boundaries in personal and professional relationships. It tells us nothing about any personal vulnerabilities that may have led her to behave as she did, any work done to address those vulnerabilities or whether those vulnerabilities have, in fact, been addressed. 12. Ms Dombrovski said that Ms Wilton has "undertaken a number of strategies to better understand her actions" but does not say what those strategies have been or how successful they have been. The highest the evidence goes in this regard is that Ms Wilton has told us (under cross-examination) that she is working less hours and doing more to look after herself, such as going for walks and having massages. Ms Dombrowski also says that Ms Wilton had demonstrated that she knows "how to access support to manage potential breaches in the future (e.g regular supervision and consultation, maintaining better work/life balance and accessing personal counselling when needed)". 13. On the state of the evidence, we cannot be satisfied that Ms Wilton has identified what personal factors led to her egregious behaviour, or that she has addressed those factors, such that we could be comfortable that she would not again blur professional boundaries with a patient. 14. Ms Dombrovski concludes that Ms Wilton's level of insight, her motivation to maintain professional standards and to prevent harm "will reduce" any likelihood of repeat conduct of a similar nature. However, that is not to say that there is no risk of her repeating such conduct. 15. Nor is the training Ms Wilton has undertaken adequate, in light of the seriousness of her conduct. In the period since the Complaint, she has completed a total of five hours of relevant on-line self-directed learning. 16. Ms Wilton submitted that, instead of a cancellation order, a caution or reprimand would be more appropriate and indicated that she would be prepared to have ongoing supervision. However, Ms Wilton herself conceded in cross-examination that supervision would not be able to pick up whether she was again, for example, texting a patient from her mobile phone. We do not consider a supervision condition would adequately protect against the risk of a repeat of Ms Wilton's conduct. 17. We recognise that there have been no other Complaints made against Ms Wilton in her long nursing career and that she has practised under supervision for the last two years and that Ms Davis and Ms Flanders both regard her as a competent and compassionate nurse. However, given the seriousness of her boundary violations and our inability to be satisfied that there is no risk that Ms Wilton will behave in a similar fashion again, and where the paramount consideration is the protection of the health and safety of the public, we are satisfied that it is appropriate to make an order cancelling Ms Wilton's registration. Such an order would publicly condemn her conduct and also serve to act as a specific and general deterrent, to uphold the standards of the nursing profession and to preserve public confidence in the profession. 18. We also consider that it is appropriate to set a minimum period within which Ms Wilton may not make an application for review of the cancellation order to send a message to her, to the profession and to the public about the seriousness of her conduct. However, in light of Ms Wilton's extensive nursing experience and in light of the fact that there have been no previous issues raised with her practise as a nurse, we think that a 12 month non-review period as proposed by the HCCC would go further than required for the protection of the community and for the proper purposes of such an order. In our view a non-review period of 6 months would be sufficient for Ms Wilton to take further steps to identify and address the issues which led to her conduct occurring. On any application for re-instatement Ms Wilton will need to demonstrate that she can be trusted to return to practise in a manner that presents no risk to the safety of the public and their confidence in the profession: Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13. She will need to provide clear proof as to her then level of insight, rehabilitation and fitness to practise. Costs 1. The HCCC seeks an order that the Respondent pay its costs as agreed or assessed. 2. This is a costs jurisdiction, and ordinarily costs should follow the event. While there is a discretion not to award costs to the successful party it must be exercised judicially "according to proper fixed principles and rules of reason and justice": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]-[44]. 3. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [9]. 4. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, the Court of Appeal identified factors that might militate against the HCCC recovering all its costs as including a lack of success in obtaining findings against the practitioner, or the HCCC's failure to establish the particulars pleaded, or some oppressive conduct on the part of the HCCC in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing. 5. The Respondent submitted that the hearing was lengthened because of the necessity to call Ms Martin to put to her the four notes of sessions with Patient A that she had not previously been provided with and to the extent Complaint Two or Three were not found proven by the Tribunal there should be an appropriate percentage reduction in the Tribunal's order as to costs. 6. However, Ms Martin's evidence was very brief and while aspects of Complaint Two have not been found proved, the HCCC has achieved overall success in the proceedings. We also note that, at the Tribunal's invitation, Ms Wilton took the opportunity to obtain a report from Ms Dombrowski which led to the proceedings being adjourned part heard. 7. In all of the circumstances and as we do not consider there has been any disentitling conduct by the HCCC, we do not see any basis a departure from the general rule. Orders 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (National Law) the registration of Vicki Wilton (Respondent) as a nurse is cancelled. 2. Pursuant to s 149C(7) the Respondent may not apply for a review of Order 1 for a period of 6 months from the date of these orders. 3. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the Health Care Complaints Commission's costs as agreed or assessed. ********** 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: 23 October 2023