Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Stone (No 2) [2016] NSWCATOD 150 Hearing dates: 14 November 2016 Date of orders: 06 December 2016 Decision date: 06 December 2016 Jurisdiction: Occupational Division Before: J Millbank, Senior Member D Beaumont, Professional Member I McQualter, Professional Member F Taylor, General Member Decision: (1) A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the Patients in the schedule to the complaint; (2) Pursuant to s 149C(1)(b) of the National Law, the Tribunal declares that the practitioner's registration as a Nurse on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order; (3) Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until 18 months from the date of this order; (4) The practitioner is prohibited, pursuant to s149C(5), from providing any "health services" as defined by s 5 of the National Law, until such time as a reinstatement order is made; (5) Costs in favour of the HCCC pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: Protective orders – professional misconduct; nurse practitioner – private practice – psychotherapy – sexualised boundary violations with two patients; events over two years apart – lack of collaborative arrangements with medical practitioners – lack of appropriate supervision – inappropriate billing to Medicare – prescribing without appropriate regard to physical health Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 64; Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') s 149C(1)(b); s 149C(7); s 149C(5); cl 13(1) Sch 5D Cases Cited: HCCC v Do [2014] NSWCA 307; HCCC v Della Bruna [2014] NSWCATOD 31; HCCC v Jamieson [2014] NSWCATOD 56; HCCC v King [2013] NSWMT 9; HCCC v Litchfield (1997) 41 NSWLR 630; HCCC v Stone [2016] NSWCATOD 117; Qasim v HCCC [2015] NSWCA 282; Sabag v HCCC [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (HCCC), (Applicant) William James Stone (Respondent) Representation: Counsel: H Bennett (Applicant) Solicitors: Health Care Complaints Commission (HCCC) (Applicant) W Stone (Respondent in person) File Number(s): 1620048 Publication restriction: A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of the Patients in the schedule to the complaint. REASONS FOR DECISION Background 1. Mr Stone is a registered nurse, and since 2007 has been accredited as a nurse practitioner. The practitioner has worked in mental health services for almost 20 years. 2. From July 2008 the practitioner provided therapy as a nurse practitioner at Matthew Talbot Lodge ('MTL') and Edward Eager Lodge ('EEL') (both of which provide crisis and homeless accommodation to adults). At MTL and EEL the practitioner worked in collaboration with, and under the supervision of, three psychiatrists. 3. From June 2013, the practitioner undertook private work in psychotherapy. The practitioner saw up to 28 private clients per week; almost all of whom were referred via EEL and MTL, including referrals he made himself. There was no supervision of this private practice and no collaboration with other medical practitioners. 4. The HCCC brought four complaints against the practitioner, which arose primarily but not entirely through his private practice. Complaint 1 concerned two female patients, Patient A and Patient B, and comprised a series of boundary crossings and boundary violations. These involved the practitioner: engaging in regular out of session contact through letter and email correspondence with both patients; making inappropriate sexual references or disclosures of feelings of sexual arousal, attraction or erotic "counter transference" with both patients; hugging both patients at the end of sessions, as well as other forms of in session physical contact with Patient B; driving Patient A home; and the giving and accepting of gifts with Patient B. 5. Complaint 2 concerned the practitioner's billing of certain sessions with both Patient A and Patient B under Medicare item 82215 (individual consultations) when they were undertaken as "creative" or "studio" sessions with up to five patients present in the room. 6. Complaint 3 concerned the practitioner's prescription of Quetiapine (brand name Seroquel) to both Patient A and B in circumstances where he did not conduct a basic physical examination, consider the effects of the drug with regard to concurrent medications, or liaise with treating doctors. The practitioner denied this complaint. 7. Following a Stage 1 hearing on 10 and 11 August 2016, this Tribunal handed down its decision on 2 September 2016: HCCC v Stone [2016] NSWCATOD 117 (the Stage 1 decision). The Tribunal found that Complaints One, Two, and Three of unsatisfactory professional conduct to be made out to the required standard. The Tribunal also found that those complaints cumulatively amounted to professional misconduct per Complaint Four. 8. Following the Stage 1 decision, the Nursing and Midwifery Council (the Council) convened s 150C proceedings on 19 September 2016 to consider varying the conditions then in place on the practitioner's registration. Based on the seriousness of the conduct found proved by the Tribunal, the Council suspended the practitioner's registration. The Council also noted that the practitioner had failed to comply with conditions in the past, and was still non-compliant at that time. 9. This Stage 2 decision now addresses the appropriate protective orders. Relevant Law 1. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: HCCC v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 2. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: HCCC v Do [2014] NSWCA 307 [35]. 3. The relevant factors when considering orders are summarised by the Medical Tribunal (as it then was) in HCCC v King [2013] NSWMT 9 at [26]-[27] as follows: The protection of the health and safety of the public encompasses a range of considerations. First, there may be a need to protect the public against further misconduct by a practitioner. Second, there is a need for general deterrence. Third, the high professional standards of the profession must be reinforced and transgressions must be denounced. Fourth, public confidence in the profession must be maintained. Fifth, it may be desirable to make available to the public any special skills possessed by a practitioner. It may be that the circumstances of a particular matter require the Tribunal to give greater weight to some of these considerations, or to consider other matters bearing on the health and safety of the public. 1. Having made a finding of professional misconduct, the powers available to the Tribunal include the power to suspend or cancel the registration of the Respondent: s149C(1)(b). 2. Whether the gravity of the misconduct is such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v HCCC [2001] NSWCA 411 at [82]. 3. Demonstrated current unfitness, not a determination of probable permanent unfitness, is required to justify deregistration: HCCC v Jamieson [2014] NSWCATOD 56 at [102]; HCCC v Della Bruna [2014] NSWCATOD 31. 4. If the Tribunal either suspends or cancels a practitioner's registration under s149C(1) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law, it is then open to the Tribunal to consider imposing a prohibition order. The National Law requires that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a prohibition order under s 149C(5). 5. While the Tribunal has a discretion to make a costs order in respect to proceedings before it, that discretion is not unfettered and is to be guided by the relevant legal principles. Costs are for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise: Qasim v HCCC [2015] NSWCA 282 [85]. The Appropriate Protective Orders 1. The HCCC sought an order for cancellation of the practitioner. The HCCC submitted that this was justified by reference to the totality of the practitioner's conduct and broader considerations of the protection of the public, including the following issues: 1. The extreme vulnerability of both of patients, and indeed of all patients the practitioner provides services to. Given the seriousness of both patients' mental illnesses and their histories of sexual abuse, it was submitted the nature of the boundary breaches ought to be viewed in a very grave light; 2. The practitioner's lack of insight as found in Stage 1; 3. The risk of reoccurrence. Following the initial complaint in relation to Patient A and a s 150 hearing which recommended closer supervision and professional development in the areas of understanding the therapeutic boundaries, understanding client dependence and prevention and risk management in relation to boundary issues, the practitioner committed further infractions of the same nature in relation to Patient B, which included ignoring the direct advice of his supervisor; 4. Lack of appropriate show of contrition and continuing failure to take responsibility, including in his written submission to the September 2016 s 150 inquiry; 5. The practitioner's denials of Complaints Two and Three; 6. The practitioner's demonstrated lack of experience and judgment in the area of psychotherapy and potential further harm that the public could be subject to if he continues to practice; 7. Non-compliance with conditions and Council concerns regarding the practitioner's general lack of engagement with the Council's processes. 1. At Stage 2 the practitioner appeared unrepresented. As a model litigant, the HCCC rightly pointed that the fifth factor cited in King, that of making available the special skills of the practitioner, weighed in favour of the practitioner maintaining his registration. However they argued that this was outweighed by the other four factors cited in King, of specific and generalised protection, professionalism and deterrence, which required cancellation. 2. The Stage 2 hearing considered in some detail whether the public could be protected through the imposition of conditions on the practitioner's registration, but ultimately concluded that it could not, and that cancellation was the only appropriate order in the totality of the circumstances. 3. In the Stage 1 decision the Tribunal noted that the practitioner engaged in multiple boundary crossings and violations over an extended period in relation to two extremely vulnerable patients, both of whom had experienced sexual abuse and violence. The Tribunal found that it was of very serious concern that the practitioner undertook some of this conduct against the clear advice of his supervisors, including repeated and emphatic recommendations of an experienced psychiatrist. 4. The Tribunal determined that the boundary violations constituted a pattern of behaviour, which continued with the second patient despite disciplinary intervention concerning the first patient. 5. We stress that while each of the boundary transgressions viewed in isolation may appear at the lesser end of the scale of such violations (as they did not, for example, involve actual sexual contact) they are extremely serious when viewed in their specific context. This context is that in which a very experienced metal health nurse practitioner engaged in sexualised communications and behaviour with the most deeply vulnerable patients, both of whom had traumatic histories of sexual abuse and trust violations known to him. He did so moreover with Patient B two years after Patient A, with significant professional, counselling and disciplinary interventions in between that ought to have prevented any such recurrence in even a very inexperienced practitioner. 6. At the Stage 1 hearing the Tribunal concluded that the practitioner demonstrated a profound and continuing lack of professional judgment and extremely poor standards of practice. Further, we noted that the evidence demonstrated Mr Stone's inability to distinguish the patient's needs from his own. As a nurse practitioner, entrusted with functions ordinarily available only to medical practitioners, Mr Stone abused this position and the trust of both his patients and the public. 7. At Stage 2 the practitioner stated that he admitted to 'a degree of wrongdoing' arising from an 'incapacity to work with patients of a complex nature' and 'inexperience and naivety'. 8. Mr Stone's evidence at both the Stage 1 and 2 hearings confirmed a lack of understanding concerning the role and importance of professional standards and boundaries, and evinced a disturbing lack of insight as to the harm he had inflicted on Patient A and B. 9. At Stage 1 Mr Stone submitted three letters from his supervising psychiatrists at EEL and MTL, Drs Neilssen, Elliot and Rogoz, dated 27 June 2016, 22 June 2016 and 28 June 2016 respectively. Although styled as reports in response to questions from Mr Stone's then legal representatives (commenting for example on the professional standard regarding prescribing which was the subject of Complaint 3) much of the content of these letters was in the nature of professional reference, addressing the scope and nature of their working relationships with Mr Stone, their judgment of Mr Stone's skills and their views of the importance of his contribution to the homeless mental health services they provide. 10. All of the references speak to regard in which Mr Stone is held by the writers, and the important role that he has played in the EEL and MTL services. All three references were based on close, long-standing professional relationships, and were made with knowledge of the complaints. As such the Tribunal gave them detailed and careful consideration. 11. The HCCC submitted that the Tribunal ought to approach these evaluations and opinions with caution, as Drs Neilssen, Elliot and Rogoz exposure to the practitioner's conduct was within a structured workplace context where patients were co-managed with medical practitioners, as opposed to an unstructured private practice where the patients were solely managed by the practitioner. It was this latter context in which the complaints largely arose. Moreover none of the psychiatrists had supervised the practitioner's treatment of Patient A or B. We accept that the gravamen of their recommendations must be limited to the very different context in which they were working. 12. At Stage 2, two further letters were received from Dr Neilssen and Rogoz, both dated 11 October 2016, and addressed originally to the Nursing and Midwifery Council of NSW concerning the s 150 hearing on 19 September 2016 and subsequent suspension of the practitioner. These letters again stress the important role Mr Stone played in the provision of mental health services at EEL and MTL and the difficulties they face in continuing to provide such services in his absence. Dr Nielssen's letter goes further, to criticise the 'so-called expert opinion' relied upon by the Tribunal and to opine that, The suspension of [Mr Stone's] registration is a tragedy that arose from his own wish to make his practice more meaningful, and the destructive behaviour of one of the many very difficult patients we encounter in this sector. 1. When asked by the Tribunal whether he agreed with this statement, Mr Stone said that he did not, because Patient B was not homeless and so was not a patient of 'this sector'. When pressed, the practitioner said that he did not agree with Dr Neilssen's sentiment, which in effect laid the blame for his suspension on Patient B. However, the practitioner could also give no other plausible explanation of Dr Neilssen's knowledge of the matter than information that came primarily from himself. The practitioner did not provide Dr Neilssen or Rogoz with a copy of the Tribunal's decision and Patient B was not a patient of Dr Neilssen. 2. The implication that Mr Stone does in fact continue to blame Patient B for these disciplinary proceedings is reinforced by the practitioner's written statement of 16 September 2016 to the s 150 inquiry which states in part: In my case with NCAT it was the advice of my legal representatives to avoid making an issue of the nature of the complaint and focus instead upon my own mistakes. I understand the need for me to demonstrate insight into breaches of professional conduct, and the ethical and professional frameworks in which to acknowledge these breaches. It seems the same general codes of expected behaviours and expectations should be mandated to the patient making the complaint, and this includes those of common law, respect and safety. 1. This statement also suggests a continuing failure to understand that health professionals are held to higher standards than their patients, and why this is so. 2. The Tribunal accepts as uncontested that mental health services to the homeless are under-resourced and that specialist expertise is in short supply. In that context, Mr Stone's skills are highly sought after and difficult to replace. The Tribunal gave serious consideration to the question of whether Mr Stone could continue to safely practise as a nurse practitioner within these services under supervision, and not as a private practitioner. However, we concluded that we could not be confident that such conditions would adequately protect the range of very vulnerable patients involved; nor that any conditions would be properly complied with by Mr Stone. 3. In submissions, Mr Stone noted that he had undertaken two CPD courses since the stage 1 hearing, comprising 17 CPD points (a total of 17 hours) in professional boundaries and ethical decision-making. 4. Mr Stone proposed that he return to practice with similar conditions on his registration to those which had existed prior to his suspension in September 2016 (ie supervision, mentoring and reporting), with an additional requirement of professional development and some form of limit on his prescribing. The practitioner also stated that he intended to avoid complex psychotherapy cases and any cases involving female patients, but did not explicitly frame these as conditions. 5. The Tribunal considered but rejected a form of conditions that would allow the practitioner to only work with male patients. This is because a practitioner who cannot be entrusted with female patients is prima facie unfit to work as a health professional: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. While so-called 'chaperone' conditions may be applied by disciplinary bodies as an interim measure pending the determination of contested matters, we see no place for them in final orders. 6. The HCCC also drew attention to Mr Stone's previous failures to comply with conditions, including a period of some months without a mentor, failure to submit a number of supervisory reports, and regular failure to provide supervisory reports without prompting, or on time. In a compliance interview with the Council on 29 July 2016 when Mr Stone was asked what steps he would take to ensure reports were provided on time in the future he undertook instead to inform the Council 'in a timely manner' when they were delayed. 7. In the September 2016 s 150 proceedings, the Council noted in its deliberations at [52] that: Council has discussed with Mr Stone on many occasions his compliance with conditions imposed on his registration, yet he has continued to ignore the advice and continued to demonstrate a disregard for the seriousness of the situation. Mr Stone has made no attempt to demonstrate remediation of action and behaviour. 1. While each of the acts of non-compliance viewed separately may appear minor, taken as a whole, in the context of the practitioner's substandard conduct which involved repeated failures to follow supervisors' advice or act within his professional scope of practice, the Tribunal apprehends a long-standing pattern of disregard for professional limits and authority. This pattern of disregard gives us grave misgivings concerning the practitioner's willingness or ability to comply with any conditions we might impose. 2. In addition, the Tribunal was provided with one further piece of correspondence between the practitioner and Patient A. This email was provided to the HCCC on 16 September 2016, after the Stage 1 reasons were released, by the professional who had originally lodged the complaint concerning Patient A. 3. The email from Mr Stone to Patient A is dated 30 January 2012 and includes: sorry i haven't written over the weekend; i understand that you are suffering and that i said i would write to try and give you support. You have to understand my hesitancy in writing as it has landed us in trouble before when you showed it to another. I trust you will be able to keep this in confidence despite your pain. … As far as i am concerned, therapy is and has always been the focus of our relationship. I know that we allowed this focus to become blurred and i accept that this was my responsibility. We both remember what it was like coping with the spectre of having therapy cease due to the notification. I remember all too well your expressions of remorse and guilt as we discussed this, and my efforts to placate you. We made it clear to each other that our therapy was so important. … …I am committed to you as a therapist but i allowed my desires to get in the way.(emphasis added) 1. When asked by Counsel for the HCCC why he had not disclosed this email Mr Stone replied that it was not part of the 'reflections' series of letters that he had been asked to provide. Under questioning from both the HCCC and the Tribunal Mr Stone conceded that the 'letters' had in fact been sent by email and that there were later emails from Patient A that he may have replied to and not previously disclosed. 2. When pressed, Mr Stone conceded that the email was asking Patient A not to disclose their communication to her other treating practitioners, and that this was not appropriate. However, he struggled to articulate why this might be a particularly harmful thing to have done to Patient A given her history and circumstances. 3. When Counsel for the HCCC asked the practitioner if the request for secrecy was potentially damaging to Patient A because it would make her reluctant to complain to others if she had concerns about her therapist, Mr Stone continued to deny that Patient A had complained, or that she had anything to complain about. This additional email, and the practitioner's response to it at the Stage 2 hearing, further confirms the Tribunal's serious concerns as to both the practitioner's compliance and his insight. 4. When asked by the Tribunal about his future plans, the practitioner stated that he wished to continue in private practice and that many of his current clients had approached him seeking to continue with him. Mr Stone then volunteered that following his suspension in September 2016 he had gone through an extensive process of seeing 'everyone I was seeing' to explain to them that his registration had been suspended and to determine what support they required. This had also involved 'aspects of counselling and support' as part of the termination process. Given that the practitioner undertook these sessions while suspended, the Tribunal believes that it would more properly have been undertaken by another practitioner. 5. In light of all of the factors laid out in the Stage 1 decision and the reasons above, the only available order is that of cancellation of registration. Given the serious and repeated boundary violations and failures to adhere to professional standards over a prolonged period, and the very vulnerable population of patients, the risk posed by the practitioner is substantial. This risk is magnified considerably in a less structured or supervised setting, such as private practice as an unregistered practitioner. We therefore conclude that until the practitioner is able to demonstrate fitness to practise as a registered nurse he should also be prohibited from providing any health services, in particular mental health services. For clarity, we note that this includes but is not limited to: welfare services, psychotherapy, counselling, art therapy and life coaching, either on a one-to-one or group-therapy basis, and that criminal penalties attach to proven breaches of such orders. Costs 1. The HCCC was wholly successful in its case which it conducted with efficiency and in the public interest, and with due care and attention to the position of the respondent as an unrepresented litigant at stage 2. They are entitled to their costs of Stage 2 of these proceedings. Orders: 1. A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the Patients in the schedule to the complaint; 2. Pursuant to s 149C(1)(b) of the National Law, the Tribunal declares that the practitioner's registration as a Nurse on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order; 3. Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until 18 months from the date of this order; 4. The practitioner is prohibited, pursuant to s149C(5), from providing any "health services" as defined by s 5 of the National Law, until such time as a reinstatement order is made; 5. Costs in favour of the HCCC pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** 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: 06 December 2016