Civil and Administrative Tribunal New South Wales Medium Neutral Citation: HCCC v Nkomo [2014] NSWCATOD 7 Hearing dates: 25 and 26 November 2013 Decision date: 28 February 2014 Jurisdiction: Occupational Division Before: D Robinson (Principal member) A Jane Currie (Nurse member) J Williams (Nurse member) W Morrison (Lay member) Decision: The Tribunal finds the Respondent nurse guilty of unsatisfactory professional conduct and professional misconduct Catchwords: Unsatisfactory professional conduct; professional misconduct, boundary violations, sexual relationship with patient; cancellation of registration. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a; Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Briginshaw v Briginshaw HYPERLINK "http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281938%29%2060%20CLR%20336" \o "View LawCiteRecord" (1938) 60 CLR 336 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v Gillett [2007] NSWNMT 7 HCCC v Howe [2010] NSWMT 12 Gayed v Walton [1997] NSWSC 279; New South Wales Bar Association v Cummins [2001] NSWCA 284 New South Wales Bar Association v Meakes (2006) NSWCA 340 Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT13 Pillai v Messiter [No.2] (1989) 16 NSWLR 197 HCCC V Roopra (No 1) [2012] NSWDT 5 HCCC v Shashati NSWMT (22 September 2006) Law Society of NSW v Foreman (1994) 34 NSWLR 408 Allinson v General Council of Medical Education and Registration [1984] 1 QB 750 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Thulani Nkomo (Respondent) Representation: Counsel Mr A Britt (Complainant) Ms B Butt (Complainant)Thulani Nkomo (Respondent in person) File Number(s): 1420003 Publication restriction: Clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) No 86a applies reasons for decision What the Tribunal decided 1The Tribunal decided that Mr Nkomo is guilty of unsatisfactory professional conduct and professional misconduct, as alleged in the Complaints brought before the Tribunal. 2The Tribunal reprimanded Mr Nkomo in the strongest possible terms. 3The Tribunal ordered the cancellation of Mr Nkomo's registration and further ordered that he not be eligible to apply for review of that decision within 18 months from the date of this order. Any such application for review must be considered by the New South Wales Civil and Administrative Tribunal. 4The Tribunal ordered that Mr Nkomo is prohibited, for a period of 18 months, from providing various health services on a public, private or volunteer basis. 5The Tribunal ordered that Mr Nkomo pay the costs of the Health Care Complaints Commission (the Commission). 6The Tribunal also made a non-publication order in relation to information identifying the original complainant, referred to in these Reasons as Patient A. Background Mr Nkomo 7Mr Nkomo trained as a nurse in Zimbabwe obtaining a Diploma in Nursing from the Tsholotsho Nursing School in 2001. 8He worked as a junior registered nurse then as a registered nurse in South Africa, between January 2002 and June 2007. He then worked in New Zealand before returning to South Africa in 2008. 9In 2009 Mr Nkomo migrated to Australia and worked at a nursing home in Narrabeen, New South Wales. He then worked at Queanbeyan Hospital, between February 2010 and January 2012 and then at Alice Springs Hospital in the Northern Territory. 10Mr Nkomo resigned from Alice Springs Hospital in November 2013. He is currently unemployed. 11Mr Nkomo's wife and child have travelled from South Africa and are now living with him in Alice Springs. Mr Nkomo hopes that he and his family can continue to reside in Australia and that he can obtain work. Patient A 12Patient A was an inpatient in Queanbeyan Hospital from 17 January 2011 until 3 February 2011 and was being treated for complications associated with Crohn's disease. 13During this time Patient A required a significant level of personal care and was prescribed Endone, Fentanyl patches and Morphine for pain relief. 14Patient A received nursing care from Mr Nkomo while she was an inpatient, from 19 January 2011 until 31 January 2011, usually on the night shift. The Complaints 15A complaint was made to the Commission in relation to Mr Nkomo by Patient A on 22 December 2011. Patient A alleged that Mr Nkomo initiated an inappropriate relationship with her, while she was an inpatient and he was providing nursing care to her. 16The Commission, after investigating Patient A's complaint and consulting with the Nursing and Midwifery Council of New South Wales, made two Complaints to the Tribunal. The Complaints allege that Mr Nkomo is guilty of unsatisfactory professional conduct and professional misconduct. 17It is alleged that Mr Nkomo failed to maintain proper professional boundaries with Patient A, in that multiple phone calls and text messages were exchanged between Mr Nkomo and Patient A, he invited her to his home and he engaged in a personal and sexual relationship with her. 18The Complaints, their Background and Particulars are set out in Annexure A to this decision. Legislative provisions 19As a consequence of the enactment of the Civil and Administrative Tribunal Act 2013 (NSW), (the NCAT Act) the Nursing and Midwifery Tribunal was abolished effective from 31 December 2013. The Tribunal's functions were taken over by the New South Wales Civil and Administrative Tribunal (NCAT). While the Tribunal heard evidence in this matter prior to the enactment of the NCAT legislation, it did not finalise the matter until after the enactment of that legislation. In accordance with Schedule 1, Part 2, Division 3, Clause 6 of the NCAT Act these proceedings can be regarded as "pending proceedings". Clause 7 (3) (b) of the NCAT Act provides that the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted, continue to apply. Accordingly, pursuant to the transitional provisions in the NCAT Act, the relevant legislative provisions remain those in the Health Practitioner Regulation National Law (NSW) No 86a. 20Unsatisfactory professional conduct is relevantly defined in S139B of the Health Practitioner Regulation National Law(NSW) (the National Law) to include: (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed or the 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 of experience. (I)Other Improper or Unethical ConductAny other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 21Professional Misconduct is defined in S139 E of the National Law as: (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 Issues 22The issues for the Tribunal are: 1.whether the Tribunal is comfortably satisfied that each of the Particulars of the Complaints are proven; and 2. if so, whether Mr Nkomo's conduct amounts to unsatisfactory professional conduct and professional misconduct; and 3.if such findings are made, whether orders or directions pursuant to the National Law are appropriate. Standard of proof 23The Commission bears the onus of establishing that Mr Nkomo has departed to the requisite degree from the appropriate standards and is guilty of unsatisfactory professional conduct and professional misconduct. 24The standard of proof required to establish the Complaints is the civil standard so the Tribunal must be reasonably satisfied on the balance of probabilities of the matters alleged against Mr Nkomo. However because of the seriousness of the allegations and the gravity of their consequences, the Tribunal needs to be comfortably satisfied that the Complaints have been established to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336). Nature of the Jurisdiction 25The jurisdiction exercised by this Tribunal is protective, not punitive (see HCCC v Litchfield (1997) 41 NSWLR 630 and HCCC v Gillett [2007] NSWNMT 7). 26The Tribunal's primary purpose is the protection of the health and safety of the public. This involves guarding against further misconduct by the practitioner and more general public protection through the deterrence of other practitioners. It is also important that public confidence in the nursing profession is maintained and that high professional standards are fostered. (see HCCC v Howe [2010] NSWMT 12; Gayed v Walton [1997] NSWSC 279.) Procedural matters Exhibits 27The Tribunal considered the following documents which were provided by the parties: * The Commission provided six folders of documents tabbed 1 to 43 (Exhibit A). The Commission also provided evidence of Mr Nkomo's registration status (Exhibit C). These documents were received without objection. * Mr Nkomo provided a signed agreed statement of facts, undated (Exhibit B). * Written submissions were provided by the Commission at the conclusion of the proceedings. Witnesses 28The following people gave oral evidence to the Tribunal: * Mr Nkomo, the Respondent, gave evidence via Skype video conference * The original complainant, Patient A attended the hearing * Miss Middleton, a registered nurse, gave expert evidence for the Commission by way of conference telephone. Non Publication Order 29The Tribunal made a non publication order to prevent the publication of the name of the original complainant or any information which might identify the original complainant. Legal Representation 30Mr Nkomo had the assistance of legal representation in his preparation for the hearing, but was unrepresented when he appeared before the Tribunal. 31The Tribunal explained to Mr Nkomo, amongst other things, the nature and process of the hearing, his right to question witnesses produced by the Commission and that he was able to seek an adjournment at any time, if needed. The documents relied on by the Commission had been couriered to Mr Nkomo and he was able to refer to them during the hearing. 1. Is the Tribunal comfortably satisfied that each of the Particulars of the Complaints is proven? Evidence Agreed Statement of Facts 32Mr Nkomo signed an agreed statement of facts, a copy of which is annexed to this decision as Annexure B. 33In this statement Mr Nkomo admitted that while Patient A was an inpatient and he was providing nursing care to her, he had inappropriately exchanged telephone numbers with Patient A, had made telephone calls and sent text messages to her and had received calls and text messages from Patient A. He admitted that he had met Patient A outside the hospital on 30 January 2011. 34Mr Nkomo admitted that he had failed to report to the Hospital the telephone calls and text messages Patient A sent to him or that she had requested his mobile phone number and sought to have an inappropriate relationship with him. He admitted that up to 3 February 2011, after he stopped providing nursing care, but while she was still an inpatient, he continued to make calls and send text messages to Patient A. 35Mr Nkomo also admitted that he had a sexual relationship with Patient A, after her discharge from Queanbeyan Hospital on 3 February 2011. This relationship continued until 31 October 2011. 36In summary, in the agreed statement of facts, Mr Nkomo admitted the Particulars of the Complaint, with the exception of three matters: * Particular 1(viii) and 1(ix) - that he engaged in intimate contact with Patient A on 30 January, and that he invited her to his home on 30 and 31 January 2011, at a time when he was also providing her with nursing care. * The exact number of calls and messages sent and received between Mr Nkomo and Patient A were not admitted, and * Mr Nkomo did not admit that his conduct constituted unsatisfactory professional conduct or professional misconduct. Mr Nkomo's oral evidence 37Mr Nkomo told the Tribunal that in January 2011 he was having a very difficult time at work and was very unhappy. His nursing qualifications were being questioned, his identity and employment history was under investigation and management at the Hospital had made suggestions that he was not competent. 38He began to talk to Patient A as she was complimentary about his nursing care, appeared to be understanding of his situation and offered to help him to obtain employment in a more accepting environment. 39Mr Nkomo said Patient A had promised to introduce him to professional people who might be able to assist him with the issues and difficulties he was experiencing in his workplace. He asserted this was the reason for commencing communication with her. 40Mr Nkomo could not recall the exact number of calls and text messages exchanged between himself and Patient A. However, he did not dispute the allegations made by the Commission as to the number of those calls and messages. 41Mr Nkomo described himself as very vulnerable at this time. He did not trust anyone in the management team or on the nursing staff at the Hospital. His wife and family were still in South Africa and he felt helpless and desperate. His vulnerability made him accept Patient A's offers of help. He acknowledged that what happened between himself and Patient A should not have happened and he said it would not have happened if he had had a support system around him. 42In his oral evidence to the Tribunal Mr Nkomo admitted that he had invited Patient A to his home on 30 January 2011 and that he had had intimate contact with her. Mr Nkomo acknowledged that on that occasion he and Patient A had been in his bed and had engaged in oral sex. He said that she had performed oral sex on him but he had not reciprocated. 43Mr Nkomo stated that he could not recall whether or not Patient A had visited his home on 31 January 2011. 44Mr Nkomo stressed that he was not a predator. He said he did not "prey on" Patient A and in fact regarded her as his "saviour" - someone who was rescuing him from "a sinking ship". He accepted her assistance because she was understanding and knowledgeable. He acknowledged that he should not have been intimate with Patient A and said that happened because of his poor judgement. 45Mr Nkomo also suggested that Patient A was the instigator of the relationship - she was interested in him and pursued him. He believes she misrepresented her employment situation and her work contacts to facilitate the relationship. He said Patient A initiated the intimate relationship. In his evidence to the Tribunal he said, "We have spoken about the oral sex......Patient A was domineering and imposing herself on me, coming to my house saying she wants to please me, and this is what she did." 46He said that he continued the relationship only because Patient A threatened to implicate him in an alleged sexual assault. 47The Tribunal notes that the evidence given by Mr Nkomo at the hearing was different to the information he provided when questioned, in December 2011, by the Director and Deputy Director of Clinical Governance for the Southern NSW Local Health District. In that interview Mr Nkomo denied that he had met with Patient A outside the hospital while she was an inpatient. He denied that she came to his home. He stated that his relationship with Patient A was a friendship which did not involve a sexual element until after she was discharged from Hospital. He said that the sexual relationship occurred after an evening of drinking with friends; he was drunk and his judgment was poor. 48The Commission questioned Mr Nkomo about this discrepancy. Mr Nkomo denied that he had lied in the interview, although he also acknowledged that he had now admitted an intimate relationship with Patient A while she was a patient in Queanbeyan Hospital. 49Mr Nkomo had difficulty answering questions about the inconsistency between his evidence at the hearing and the information given to the Southern NSW Local Health District. On several occasions when counsel for the Commission suggested that Mr Nkomo had lied at the interview, he replied by saying, "I will say yes for the simple reason because I can't continue to argue. I just want this matter finished. I will say yes." 50The Tribunal also questioned Mr Nkomo in relation to his understanding of the Professional Codes of Conduct applying to nurses. He responded by reading short extracts from the Codes, which were available in the documentation served on him by the Commission. The Tribunal considered his knowledge and understanding of the Codes of Conduct to be superficial. Other Evidence 51Patient A told the Tribunal that she was a patient in Queanbeyan Hospital between 17 January 2011 and 3 February 2011. She stated that during this time she shared telephone numbers with Mr Nkomo and they exchanged calls and text messages. Patient A said that she visited Mr Nkomo's home on two or three occasions before she was discharged from Queanbeyan Hospital and that she and Mr Nkomo had a sexual relationship. 52Patient A says that the personal contact and the sexual relationship occurred while she was an inpatient and Mr Nkomo was providing nursing care to her. 53Patient A acknowledged that Mr Nkomo was interested in her professional contacts but told the Tribunal that the personal relationship was a mutual interest from the beginning. 54The Commission provided a transcript of text messages between Mr Nkomo and Patient A for the period from 9.05 am on 29 January 2011 to 6.09 am on 1 February 2011. 55Although Patient A may have suggested telephone contact, Mr Nkomo allowed that contact. 29/1 at 10 am, from Patient A to Mr Nkomo: "really special to have you care for me, sorry to hear you are having work issues, want me to call you?" 29/1 at 10.01 am, from Mr Nkomo to Patient A: "That makes me feel better wish the Manager could hear that" 29/1 at 10.04 am, from Patient A to Mr Nkomo: "she wil, I wil tell her and wrote to thanks ceo" 29/1 at 10.05 am, from Mr Nkomo to Patient A: "Been browsing the net will be going to bed soon. You gotta rest, u r nt well dear, but it makes me feel special and im blushing. Yes you can call" (emphasis added) 56The messages from Patient A to Mr Nkomo can be described as flirtatious, however Mr Nkomo's replies are also personal and flirtatious, 29/1 at 11.22 am, from Mr Nkomo to Patient A: don't cry.......i cant comfort u with a hug or a kiss ao" 29/1 at 6.11pm, from Mr Nkomo to Patient A: "Girls can't be turned down its against nature hope we don't get found out by our partners" 57The transcript of text messages between Patient A and Mr Nkomo indicates a rapid escalation in the personal relationship, with declarations of love being made by Mr Nkomo on 29 January 2011. 58The transcript of text messages also corroborates the evidence that Mr Nkomo met with Patient A outside the hospital and that Patient A visited Mr Nkomo's home. The text message Mr Nkomo writes at 7.44 pm on 30 January 2011 appears to contain an invitation, "had gone to buy pizza for dinner wanna cum..." 59On 31 January 2011 at 4.36 am Mr Nkomo wrote: "My door is not locked u can have a rest there if it will calm ur soul im so sorry" 60On 31 January 2011 at 9.29 am Patient A wrote, "I hope I didn't leave you too much mess". She stated in her oral evidence this was a reference to the fact she had been at Mr Nkomo's home and had cleaned up for him. The Tribunal's Decision 61In the agreed statement of facts and in his oral evidence Mr Nkomo admitted most of the Particulars of the Complaints and also acknowledged that his conduct was inappropriate. 62The one matter which Mr Nkomo did not admit related to the allegation that he had invited Patient A to his home on 31 January 2011. In his oral evidence he said he could not recall if he had invited Patient A to his home on that day. He acknowledged he had done so on 30 January 2011. 63Having regard to the transcript of text messages and Patient A's evidence in relation to this matter, the Tribunal is satisfied that Particular 1 (ix) is proved. 64Accordingly, the Tribunal is satisfied that all the Particulars are proven to the requisite standard. This decision is based on Mr Nkomo's admissions, the oral evidence of Patient A and the available documentary evidence, particularly the transcript of text messages between Patient A and Mr Nkomo. 2. Does Mr Nkomo's conduct amount to unsatisfactory professional conduct and professional misconduct? 65In determining whether Mr Nkomo's conduct amounts to unsatisfactory professional conduct and professional misconduct, the Tribunal has had regard to the oral and documentary evidence before it, the National Law, relevant case law, the Nurse's Code of Professional Conduct and Code of Ethics for Nurses in Australia. Unsatisfactory professional conduct 66Unsatisfactory professional conduct is defined in the National Law as: (a)Conduct significantly below reasonable standardConduct that demonstrates the knowledge, skill or judgment possessed or the 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 of experience. (I)Other Improper or Unethical Conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. Conduct significantly below reasonable standard Evidence 67Ms Rebekkah Middleton, Registered Nurse, provided evidence on behalf of the Commission. Ms Middleton provided a report dated 10 June 2012 which she amended on 19 June 2012. She also gave oral evidence to the Tribunal. 68Ms Middleton states in her report that the relationship which developed between Mr Nkomo and Patient A was inappropriate from a professional perspective "due to the nature of the text messages and meetings outside of the ward whilst Patient A was an inpatient". Ms Middleton is also critical of the relationship continuing after Patient A was discharged. " Although there are no issues with power imbalances once discharge has occurred, there is a previous power relationship and hence it is questionable whether Patient A remains vulnerable........" 69Ms Middleton stated that if the relationship between Mr Nkomo and Patient A became intimate on 29 January 2011, (at a time when Mr Nkomo was caring for Patient A), then his conduct falls significantly below the standard expected of a registered nurse. She refers to the Code of Professional Conduct for Nurses in Australia (2006) and the Code of Ethics for Nurses in Australia (2005). 70The Code of Professional Conduct for Nurses in Australia recognizes that sexual relationships between nurses and persons, with whom they have previously been in a professional relationship, are inappropriate in most circumstances. Consent is not an acceptable defence or justification in this situation. The Code also refers to the responsibility nurses have to maintain a professional boundary between themselves and the patient. 71Ms Middleton states that nursing is a profession where relationships with patients are inherently intimate in nature. However, the nurse must recognize boundaries between the professional and personal and not allow the breakdown in the therapeutic nature of the relationship to occur so that boundaries are crossed or violated. Ms Middleton is of the view that Mr Nkomo has departed significantly from accepted standards and she is strongly critical of his conduct. 72In his cross examination of Ms Middleton, Mr Nkomo suggested that there was a shift in the "balance of power" between himself and Patient A as he was the one in difficulty and Patient A as offering to help him. Ms Middleton stated, "No, I don't consider that a shift in power at all because you were the professional acting as a registered nurse...." The Tribunal's decision 73Mr Nkomo qualified as a nurse in 2001. Since that time, he has worked as a registered nurse in South Africa, New Zealand and Australia. Accordingly, he has worked as a registered nurse for over a decade and can be regarded as a senior and experienced member of the nursing profession. 74The Tribunal accepts the evidence provided by Ms Middleton as to accepted standards in the nursing profession. The Tribunal notes Mr Nkomo's admissions and his acknowledgment that his conduct was inappropriate and the result of poor judgment on his part. 75The Tribunal also notes that Mr Nkomo did not acknowledge the existence of a personal and sexual relationship with Patient A during January 2011, when interviewed by the Director and Deputy Director of Clinical Governance for the Southern NSW Local Health District in December 2011. At the start of the Tribunal hearing, Mr Nkomo made some admissions. It was only after evidence had been heard and during the course of the Tribunal hearing that Mr Nkomo made fulsome admissions in relation to the Particulars of the Complaints. 76The evidence before the Tribunal indicates that by 29 January 2011 the relationship between Mr Nkomo and Patient A had become a personal relationship. It then developed into a sexual relationship on 30 January 2011.The relationship began when Patient A was an inpatient and was unwell, requiring regular opioid analgesia and assistance with personal care. 77Patient A may have initiated flirtatious communication with Mr Nkomo. She may even have initiated the more intimate aspects of the relationship. However, Mr Nkomo participated in the relationship, providing his telephone number to Patient A, sending and receiving calls and text messages. Any early reticence, observable in some text messages between Mr Nkomo and Patient A, quickly abated. He invited her to his home where he was a willing participant in oral sex with Patient A. He failed to report the situation or enlist the support or assistance of anyone at the hospital. The relationship began while Patient A was an inpatient being cared for by Mr Nkomo. It continued after Patient A had been discharged from hospital, and up until October 2011. 78The relationship between a patient and a nurse must be shaped by the therapeutic context and the inherent vulnerability of the person who is ill. It is the nurse's responsibility to recognise and maintain appropriate professional boundaries for the purpose of ensuring proper patient care. As Ms Middleton explains in her report, sexual involvement with a patient is an extreme form of boundary violation, even where the patient may consent to or initiate the relationship. 79The Tribunal is of the view that Mr Nkomo did not acknowledge that as a nurse he was in a position of power and that the avoidance of a relationship with Patient A was his responsibility. 80The Tribunal is satisfied that Mr Nkomo's conduct was significantly below the standard expected of a practitioner with his training and experience and constitutes unsatisfactory professional conduct. Improper or unethical conduct 81The Tribunal considers that Mr Nkomo's conduct can be regarded as improper on the basis that it is seriously inappropriate and not in accordance with decent and proper professional behaviour. 82It is also unethical conduct. Unethical is defined in the Macquarie Dictionary as meaning, both immoral or contrary to moral precepts and secondly, as relating to a contravention of a professional code of conduct. Mr Nkomo's conduct contravenes several elements of his professional code of conduct. 83The Code of Ethics for Nurses in Australia sets out a number of Value Statements which are designed to identify fundamental ethical standards and guide ethical decision making and practice. Value Statement 2 states, 'Significant vulnerability and powerlessness arises from the experience of illness and the need to engage with the health care system. The power relativities between a person and a nurse can be significant, particularly where the person has limited knowledge, experiences pain, illness and fear, needs assistance with personal care; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and people in their care that must be recognised and managed.' 84The Code of Professional Conduct for Nurses in Australia sets out the minimum national standards of conduct for members of the nursing profession and provides professional bodies with a basis for evaluating the professional conduct of nurses. It contains ten Conduct Statements. 85Statement 8 requires nurses to promote and preserve the trust and privilege in the relationship between nurses and the people receiving care and specifically refers to the need to maintain professional boundaries and avoid sexual relationships with patients and former patients. 86Patient A was Mr Nkomo's patient. In addition she experienced significant pain and distress as a result of her illness and required considerable assistance with her personal care during her admission to Queanbeyan Hospital. Mr Nkomo failed to appreciate and/or manage the power differential between nurse and patient within the therapeutic relationship. 87As has been discussed above, sexual involvement with a patient can be regarded as an 'extreme form of boundary violation', even where the patient may consent or initiate the relationship. It is the responsibility of the registered nurse to ensure that professional boundaries are maintained. Mr Nkomo failed to do so. 88Statement Two of the Code of Professional Conduct for Nurses in Australia states, 'Nurses recognise their professional position and do not accept gifts or benefits that could be viewed as a means of securing the nurses' influence or favour'. 89Mr Nkomo entered into a relationship with a patient when he saw that patient offering him support and assistance in salvaging and developing his career. In seeking those particular benefits from Patient A, Mr Nkomo appears to have placed his own needs above those of the patient in his care. In establishing a relationship with Patient A in furtherance of those aims, Mr Nkomo demonstrated a significant departure from professional standards. 90Statement 2 also states, Any circumstance that may compromise professional standards, or any observation of questionable, unethical.......... practice, should be made known to an appropriate person or authority. 91Mr Nkomo did not divulge his relationship or any of his concerns regarding Patient A's behaviour to any of his nursing colleagues or his Nurse Unit Manager (NUM). He acknowledged in oral evidence that he should have done so. Mr Nkomo's failure to disclose his relationship with Patient A or to seek proper professional support in the circumstances is another breach of the Code of Professional Conduct. Professional Misconduct 92Professional Misconduct is defined in S139 E of the National Law as: 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. 93The classic common law definition of professional misconduct is found in the case of Allinson v General Council of Medical Education and Registration [1984] 1 QB 750 where it was said that professional misconduct is conduct 'which would be reasonable regarded as disgraceful or dishonourable by professional brethren of good repute and competency'. 94Mr Nkomo established and maintained a personal and sexual relationship with Patient A in circumstances which constitute a serious breach of his professional code of conduct and the code of ethics for nurses in Australia. The relationship was established whilst Patient A was an inpatient and was receiving nursing care from Mr Nkomo. The relationship continued for a significant period of time after Patient A's discharge from Hospital. 95Mr Nkomo acknowledged that his motivation for establishing this relationship was to gain both professional and personal benefits, such as professional introductions and assistance with future employment. At a personal level, Mr Nkomo was also seeking emotional support and ultimately sexual gratification from Patient A. 96Mr Nkomo gave evidence to the effect that he was not a sexual "predator" and that in fact Patient A had sought and initiated the sexual relationship. Even if this was the case, Mr Nkomo's goal in his relationship with Patient A was to gain both personal and professional benefits for himself from the patient. 97To achieve this Mr Nkomo ignored professional boundaries and engaged in conduct that constituted a serious breach of trust and demonstrated a substantial lack of integrity. 98Moreover, Mr Nkomo invited Patient A to leave the hospital and visit him at home at a time when she was being treated with a range of pain medication including Endone, Fentanyl and Morphine. She was sedated and he was aware of that at the time. Counsel for the Commission summarised the situation in this way, "This is a case where you have a treating nurse encouraging a patient to leave the hospital knowing that she is drugged and sedated, knowing that she is in an emotional state, to meet him outside the hospital, to then take her home to his house and engage in a sexual act with her. This is not questionable conduct; this is conduct that runs entirely counter to the expectations that nurses put on themselves through their various codes of conduct and that the public expects from nursing staff." 99Mr Nkomo did not report or seek assistance with the issues in his professional relationship with Patient A. He lied about the relationship when interviewed by relationship Director and Deputy Director of Clinical Governance for the Southern NSW Local Health District. His frankness with the Tribunal was, as he said, because "I can't continue to argue. I just want this matter finished." 100The Tribunal is satisfied that Mr Nkomo's behaviour is sufficiently serious to constitute professional misconduct. His conduct brings the nursing profession into disrepute and impacts on the confidence that the community has in the profession. Orders Submissions from the Commission 101The Commission sought the cancellation of Mr Nkomo's registration for a minimum period of 2 -3 years. In addition a prohibition order was sought so that Mr Nkomo would be unable to provide medical, hospital, nursing and other community health services on a private, public or volunteer basis for a similar period of time. 102The Commission also sought an order that Mr Nkomo pay the Commission's costs. Submissions from Mr Nkomo 103After an adjournment, to allow Mr Nkomo time to consider the submissions made by the Commission, he made a number of oral submissions to the Tribunal. 104Mr Nkomo argued that cancellation of his registration may be too harsh given that he is a first offender and given the circumstances he was facing at the time. 105He submitted that two to three years is too long a period for cancellation in his case. He stated that he has not been involved in any other form of professional misconduct since the events in question. He also considered that he would have to retain his registration to be able to undertake any educational course on ethics. 106In relation to costs, Mr Nkomo stated that without an income it will be difficult for him to pay the costs of the Commission. The Tribunal's decision 107Given the nature of Mr Nkomo's professional misconduct, the Tribunal determined to reprimand Mr Nkomo in the strongest possible terms. 108The primary role of the Tribunal is to protect the health and safety of the public. Mr Nkomo has demonstrated a lack of understanding of his responsibilities as a registered nurse. He was ultimately frank in his testimony to the Tribunal but initially demonstrated a significant lack of candour. He had not been honest about his behaviour in the past when questioned by officers from his local health district. His insight into the nature of his conduct remains questionable. In these circumstances, the Tribunal determined to order the cancellation of Mr Nkomo's registration. 109The Tribunal further ordered that Mr Nkomo not be eligible to apply for review of that decision within 18 months from the date of this order and any such application for review must be considered by the New South Wales Civil and Administrative Tribunal. 110This period of time will gives Mr Nkomo sufficient time to reflect on his behaviour and to undertake further consideration of his professional code of conduct and the code of ethics for nurses in Australia. It also allows him suitable opportunity to undertake an ethics course, which may be of assistance to him if he wishes to seek registration in the future. 111The Tribunal accepted the submission made by the Commission as to the need for a prohibition order, the purpose of which is to protect the public by preventing Mr Nkomo from working in any capacity in a health related field for a period of 18 months. 112There was very little argument put to the Tribunal in relation to costs and the Tribunal considered that there was no reason not to follow the usual approach. Accordingly, the Tribunal ordered that Mr Nkomo pay the costs of the Commission. Accordingly, the Tribunal makes the following Orders: 1) The Tribunal reprimands Mr Nkomo in the strongest possible terms. 2) The Tribunal orders the cancellation of Mr Nkomo's registration. 3) The Tribunal orders that Mr Nkomo not be eligible to apply for review of that cancellation decision within 18 months from the date of this order. Any such application for review must be considered by the New South Wales Civil and Administrative Tribunal. 4) The Tribunal orders that Mr Nkomo is prohibited, for a period of 18 months, from providing the following health services on a public, private or volunteer basis: (a)Medical, hospital, nursing and midwifery services (including services as an assistant in nursing); and (b)Community health services 5) The Tribunal orders that Mr Nkomo pay the costs of the Health Care Complaints Commission. 6) The Tribunal makes a non-publication order in relation to any information identifying the original complainant, referred to in these Reasons as Patient A. Annexure A Annexure B ********** 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: 28 February 2014