Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sullivan [2018] NSWCATOD 88 Hearing dates: 24 May 2018 Date of orders: 06 June 2018 Decision date: 06 June 2018 Jurisdiction: Occupational Division Before: R Titterton, Principal Member E Angel, Senior Member K Eyre, Senior Member J Kearney, General Member Decision: 1. If Mr Sullivan were still registered the Tribunal would have cancelled his registration. 2. Mr Sullivan is disqualified from being registered as a registered nurse for a period of 18 months. 3. The National Board is to record in the National Register the fact that the Tribunal would have cancelled Mr Sullivan's registration. 4. Mr Sullivan is prohibited from providing health services relating to drug and alcohol patients or mental health patients for the period of his disqualification. 5. Mr Sullivan is to pay the costs of the Health Care Complaints Commission. Catchwords: TRADES AND PROFESSION –– Nursing –– Health Practitioner Regulation National Law –– sexual relationship between nurse and patient Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Gayed v Walton [1997] NSWSC 279 Health Care Complaints Commission v Howe [2010] NSWMT 12 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Nkomo [2014] NSWCATOD 7 Health Care Complaints Commission v Picones [2018] NSWCATOD 56 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 NSW Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Re Dr Parajuli [2010] NSWMT 3 Category: Principal judgment Parties: Health Care Complaints commission (Applicant) Stephen Sullivan (Respondent) Representation: Counsel: Respondent: Mr R Bhalla Solicitors: Respondent: Health Care Complaints Commission Applicant: self-represented File Number(s): 2017/00388301 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) the name of Patient A is not to be published REASONS FOR DECISION Summary 1. This is the application of the Health Care Complaints Commission for disciplinary orders against the respondent Mr Stephen Sullivan. The orders are sought pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (National Law). 2. Except where otherwise stated statutory references are references to the National Law. 3. The Commission alleges that Mr Sullivan is guilty of both unsatisfactory professional conduct and professional misconduct. The complaints relate to Mr Sullivan failing to maintain proper professional boundaries with Patient A, and entering into an improper and unethical personal and sexual relationship with her. 4. Mr Sullivan admits the two complaints, which are set out in Attachment A. We find that the complaints are established. 5. For the following reasons, the Tribunal makes the following orders: 1. if Mr Sullivan were still registered the Tribunal would have cancelled his registration pursuant to s149C(4)(a); 2. Mr Sullivan is disqualified from being registered as a registered nurse for a period of 18 months pursuant to s149C(4)(b); 3. the National Board is to record in the National Register the fact that the Tribunal would have cancelled Mr Sullivan's registration pursuant to s149C(4)(c); 4. Mr Sullivan is prohibited from providing health services relating to drug and alcohol patients or mental health patients for the period of his disqualification pursuant to s149C(5)(a); and 5. Mr Sullivan is to pay the costs of the Health Care Complaints Commission. Mr Sullivan's evidence 1. Mr Sullivan was a co-operative witness. Where necessary he admitted all the relevant factual matters raised by the Commission. He came from Tasmania to attend the Tribunal hearing. 2. He provided a short written statement to the Tribunal, which we set out in its entirety: I will read this out if that is permitted so as to cover all points from my perspective in this matter, and NOT at any time to offer an excuse for my inappropriate behaviour but to admit in writing and publically of the devastating mistake I have made. My understanding of a mistake is: First to recognise that it has been made Next to make restitution Followed by accepting responsibility or the consequences All of which I believe I have now done. Again not as an excuse, but to set the scene I state the following: I grew up in a very dysfunctional family where domestic violence and substance abuse were a daily occurrence. Poverty extended to a lack of food among most other things taken for granted in today's world. My late mother tried desperately but to no avail, to limit our exposure to the above. This was in the years where there was no support systems in place to help such scenarios. I left school aged 14 years and 9 months, the absolute minimum age allowable to gain employment. Obviously with low education, blue collar, unskilled work was all I could obtain. I endeavoured to help my mother as best as I could at such a young age as I still had siblings at home. I went onto marry young and had 3 children, all now adults. These years were hard and I often worked 7 days per week to support my family on a meagre wage. Eventually this took its toll on my marriage which ended in divorce after 12 years. Trying to maintain a second home, keep my children in their home was difficult to say the least, due mainly to my wages being aligned with my educational level. After much sole [sic] searching I decided to better myself through further education. I completed a Uni start course and entered the University of Western Sydney (UWS) to study nursing. I worked full time nights in a factory and spent long days at Uni and in the public library as I was unable to afford a computer of my own. 3 long years later I achieved a goal that was previously unheard of in my circumstances and family. At all times (until this situation), since commencing work as a Registered Nurse in 1997, I have acted ethically and professionally with an awareness of keeping a vulnerable population group such as drug and alcohol clients safe as evidenced by my references and performance appraisal. I thoroughly enjoyed my career and the challenges I faced each day. A number of years passed and I remarried with the intent of remaining in this committed relationship "Till Death Us Do Part". I was determined and dedicated to this person and role for 10 years until my then wife chose another pathway for her future. This breakdown in my marriage appeared to me to come suddenly and unexpectedly. I was in no way prepared for this shock and realise in hindsight my actions pursuant to this matter that I am here addressing today, were directly related to my behaviour resulting in: Unprofessional conduct Engaging in improper and unethical conduct Professional misconduct Concurrently to this, my late mother and best friend, had received a devastating diagnosis that ultimately took her life. She was the tenuous link to me and my siblings surviving childhood at all. I was not coping at all although I did not recognise this at the time. My judgement was impaired commencing at the time of the staff/patient social event and resulted in the lowering of my previous standards of practice. I do however want to add, that despite my full admission of guilt, that many of the text messages were out of context and some of my responses were untruths to the patients (for example - Methadone at my home and suicidal thoughts) which were just made up on the spur of the moment in keeping with the patients conversation. There was a degree of manipulation by the patient in this matter, although without my error in having a personal and sexual relationship with the patient and assisting her financially, and therefore acting contrary to the Code of Conduct, this would not have been possible. This also corresponded to a period of poor health where I suffered a heart attack. I am not proud of my behaviour and have and still do feel greatly embarrassed. I have not only lost my job, destroyed my career, suffered financially having moved interstate as planned but then not having the job I had been accepted for, having had to utilise my superannuation to survive ( and had to borrow the airfare for today's meeting). I understand I have ruined the future I had planned but have had to take stock of myself mentally and emotionally by arranging counselling. I believe I had been traumatised in my personal life and let that affect my professional judgement. At no time do I feel it acceptable or appropriate to go beyond a therapeutic relationship with a patient yet this is exactly what I did. Yes the patient was vulnerable but so as a human being outside of being a nurse so was I. I just didn't recognise the signals that allowed me to breach the Code of Conduct at that time. I believe the circumstances that lead to this situation was THE PERFECT STORM (everything going wrong all at the same time and my defences were down). I crossed the professional line. I believe counselling will be beneficial in a number of aspects of my life both personally and professionally and would never allow me to put the patient or myself in this position again and risk a patient's safety. This organisation cannot punish me more than I have punished myself for this gross error in judgement and performance and that is why I immediately surrended my registration. Now with the support from counselling, family and friends, I can categorically declare that I would never place a patient or myself in that situation again. So to summarise: First - Recognise a mistake- yes I was aware during the timeframe concerned I was doing wrong but a full disclosure and admission to myself took place on much reflection and personal reproach. Next - Make restitution -1 feel handing in my nurses registration was the single most act of penalty I could hand myself, knowing full well the repercussion of doing so. Followed by - Accept responsibility and consequences - Fully do I accept responsibility. This is why I felt it so important to attend in person even incurring a financial burden, so as I could stand here before you and say "I WAS WRONG". I made a grave error of judgement that would not be repeated ever again if I was to resume my nursing career. (Bolding and Capitalisation as in original) 1. Mr Sullivan swore to the truth of his statement. The Commission did not cross-examine him on its contents. We accept therefore the statement at face value. We accept entirely Mr Sullivan's genuine remorse and regret. We consider that he has shown deep insight into his situation, and now understands the significance and consequences of his conduct. Findings 1. Given Mr Sullivan's admissions, we are able to make the following findings. 2. Mr Sullivan was registered as a nurse in January 1997. He came to work as as a registered nurse at a facility in Parramatta known as the Centre for Addiction Medicine (CAM) at Cumberland Hospital, and the Fleet Street Opioid Treatment Unit (FSOTC), also in Parramatta. 3. Patient A has a history of drug abuse, and in November 2015 she began treatment as an outpatient at CAM for heroin use. On a number of occasions from November 2015 to August 2016, Mr Sullivan administered Patient A's daily dose of Suboxone, or supervised another practitioner administering the same drug. From November 2015 to February 2016, Mr Sullivan was involved in administering the drug to the patient on around 20 occasions. 4. In the past, Patient A had worked as a prostitute, and she mentioned this to Mr Sullivan. At a CAM Christmas barbeque for outpatients held in December 2015, Mr Sullivan told Patient A that he might be able to help her out financially. He gave her his mobile number by way of a note that said: "Ring anytime", or words to that effect. A week or two later, Patient A texted Mr Sullivan and invited him over to her place. After he arrived, he offered her $200 for sex. She accepted the offer because she was "desperate" for the money. This arrangement continued for a couple of months. 5. On 12 February 2016, Patient A mentioned this arrangement to her psychologist. The psychologist made a notification to the Commission on 16 February 2016. 6. On 13 February 2016, Mr Sullivan and Patient A spent a night together in a hotel at Bright-Le-Sands. 7. A couple of days later, Patient A told Mr Sullivan (via text message) that she had mentioned their arrangement to her psychologist. Mr Sullivan told her that he could be de-registered and said that their arrangement was now over. 8. Over the next four months or so, Mr Sullivan and Patient A did not have sex. 9. In June 2016, Patient A texted Mr Sullivan to ask for money to treat her dog's ear infection. Mr Sullivan gave her the money, saying that he was glad to help, it was the least he could do for her silence. He gave her the money some days later; they did not have sex on that occasion. Whilst giving her the money, Mr Sullivan offered to take Patient A to Queensland in September 2016. Patient A did not agree to that, but they did start having sex occasionally after this. There was no monetary arrangement in place. 10. In about early January 2016, Mr Sullivan entered into a personal and sexual relationship with Patient A which included: 1. Mr Sullivan entering into an arrangement with Patient A whereby Mr Sullivan would pay Patient A money in exchange for sexual activity initiated by him in order to assist her with her financial difficulties; 2. Mr Sullivan having sexual intercourse with Patient A at her home and another location on about eight occasions between about early January 2016 and about mid February 2016; 3. Mr Sullivan paying Patient A a sum of money on the majority of the occasions they had sexual intercourse. 1. Between early January 2016 to mid to late February 2016, Mr Sullivan continued to provide treatment to Patient A, in the form of administering or supervising the administration of Suboxone to Patient A, in his role as a casual registered nurse at CAM and FSOTU. 2. Between 7 and 22 June 2016, Mr Sullivan gave Patient A money to pay for a veterinary bill and stated to Patient A that it was "the least I can do in exchange for your silence". 3. On a date between 7 and 30 June 2016, Mr Sullivan: 1. invited Patient A to come on a holiday to Queensland with him in September 2016; and 2. offered to assist Patient A in the process of obtaining 'takeaways' (where 'takeaways' is a reference to Suboxone which made available to patients who could not attend a clinic to have the Suboxone administered by a nurse such as Mr Sullivan), and while Mr Sullivan was still involved in administering Suboxone to Patient A. 1. On a date between 1 June 2016 and 31 August 2016, Mr Sullivan: 1. discussed suicide with Patient A; 2. represented to Patient A that he had methadone at his house, including by way of a text message sent by Mr Sullivan to Patient A on 18 July 2016 that stated: 'I had that methadone ages before the xmas bbq because i wanted to kill myself but didnt have the guts to do it. then I threw it out when i decided i didn't want to die.' 1. On 2 July 2016, Mr Sullivan sent a text message to Patient A which stated: 'lol. when rego due. i will be able to help next week if that helps'. 1. On 2 July 2016, Mr Sullivan attended Patient A's house to stay the night. (We note that we do not find that Mr Sullivan purchased alcohol for Patient A. He said that he offered to, but in fact she wanted a lemon, lime and bitters.) 2. Between 17 June 2016 and 22 July 2016, Mr Sullivan sent Patient A approximately 78 text messages of an inappropriate and personal nature. Examples include the following: 1. on 17 July 2016, Mr Sullivan sent a text message to Patient A stating: '… I gave you my phone number because i liked you and wanted to get into your pants. I am disillusioned with women after being deeply hurt by the two women I married. I now dont want to get hurt again so that is why I don't get over excited about things.' 1. on 17 July 2016, Mr Sullivan sent a text message to Patient A stating: '… When I with you its because I want to be in your company and doesnt matter if we have sex or not.' 1. on 17 July 2016, Mr Sullivan sent a text to message Patient A stating: 'I am not trying to give you mixed messages. I like being with you sometimes and I like being on my own sometimes as well. I know you got hurt by him and there is no way I want to hurt you. I am aware of consequences about being with you and fully expect to find out soon what Fleet st is going to do about it… I think I might have to resign as a nurse.' 1. on 19 July 2016, Mr Sullivan sent a text message to Patient A stating: 'I am sure your test will come out clean. I didnt sleep with anyone else since leaving wife… I liked you and yes probably did use you for sex in the early days. I am sorry if that offended you but i thought we had an understanding on that… I guess I won't get the full time job at Fleet st then. It was nice knowing you Lee. I do hope everything will work out for you. Always remember that you are a good person. Bye. 1. on 19 July 2016, Mr Sullivan sent a text message to Patient A which stated: 'Hi Lee. I just want you to know that if you ever get into financial difficulty like when suzie got sick, you can contact me and I will try to help. No strings attached. 1. on 20 July 2016, Mr Sullivan sent a text message to Patient A stating: '… I haven't done anything wrong except get involved with a patient. Yes I am worried about my job but if I get deregistered because of what happened between us then I will just have to suffer the consequences and go on the dole…' Expert Evidence 1. The Commission relied on an expert report of Ms Susan Banks dated 13 March 2017. Ms Banks is an Area Manager for Opioid Treatment Services, and a Senior Drug Nurse for the Drug and Alcohol Service. She was not required for cross-examination and her expertise was not in dispute. She states in the summary to her report: This entire incident is an ongoing violation of the Code of Conduct NSW Health, Code of Professional Conduct for Nurses in Australia and . . . seriously crosses professional boundaries for Nurses. I consider every aspect of this incident falls significantly below the standard reasonably expected of a practitioner of equivalent level of training and experience, applicable at the time of the conduct and invites my strongest criticism. Mr Sullivan seriously compromised the safety of himself and [Patient A] by giving the client his phone number in the first instance, entering into an agreement to pay for sex, and by entering into a relationship not once but twice with a vulnerable client in the care of the service he worked for (NSW Health, Opioid Treatment Program). This type of boundary crossing constitutes the most serious violation of behavior by a professional nurse. (Bolding as in original) 1. These opinions are amplified in the body of the report. In relation to the appropriateness of Mr Sullivan's conduct in forming a personal and sexual relationship with Patient A, Ms Banks states: I consider his conduct was unethical, inappropriate, and unprofessional and seriously breached the Code of Conduct NSW Health, Code of Professional Conduct for Nurses in Australia and seriously crossed professional boundaries for a nurse by: a) Abusing the work place as an employee of NSW Health by seriously breaching professional boundaries which in 'a nurse's guide to professional boundaries states 'sexual misconduct is an extreme form of boundary violation' 'sexual misconduct is sexual assault 'Even if the person consents or the person initiates the sexual conduct it is still the nurse's responsibility to maintain the boundary in the relationship. b) Making the clinic environment unsafe for himself, the client in his care and potentially other clients attending the service. In my experience OTP clients maintain a strong connection with each other therefore some would most likely be aware of any inappropriate relationship by a staff member with a client thus bringing the clinics involved and NSW Health into disrepute. c) By not 'promoting and preserving the trust and privilege inherent in the relationship between nurses and people receiving care . . . . 1. In relation to Mr Sullivan's conduct in paying Patient A for sexual intercourse, Ms Banks states, in part: I consider he exploited a vulnerable marginalised, desperate client in the care of his employer (NSW Health) for personal gain by offering and indeed paying for sex and in my view this is no different from prostitution which totally contravenes his ethical and professional responsibilities for this client. Having spent many years working with Drug & Alcohol (OTP) clients it is absolutely essential for staff to be professional and be aware of their professional conduct and maintain boundaries at all times because: Some of these patients are marginalised, difficult, have low self-esteem and are vulnerable with complex and challenging behaviours. They can have long histories of various types of abuse including sexual and domestic violence, incarceration for many different crimes; have learned to manipulate situations and people extremely well, are opportunist and reported information is often unreliable .This behaviour is often learned as a survival mechanism. Due to their vulnerability these clients need to be treated with respect, care and empathy as they are open to exploitation (see code of conduct 4.6 'staff must not take unfair advantage of, or exploit any relationship with patients or clients in any way....'), there is an imbalance of power. Complaints established 1. We are satisfied that the matters set out above establish both unsatisfactory professional conduct and professional misconduct. In reaching these findings, we note the admissions of Mr Sullivan of the factual findings leading to our conclusions, and the expert evidence of Ms Banks which we have summarised. Nevertheless, independently of the admissions and the expert evidence, our role is to determine for ourselves whether we find the complaints established. 2. Pursuant to s 139B(1) of the National Law, unsatisfactory professional conduct of a registered health practitioner includes both 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 expertise. ... (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. As noted recently in Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [81], the terms "improper" and "unethical" as used in s 139B(1)(l) of the National Law are not defined and includes: … Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87]. 1. Professional misconduct under s 139E of the National Law 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. Ms Banks referred to various Codes of conduct. The first was the NSW Health Code of Conduct published in December 2015 by NSW Health. Relevantly, cl 4.6 provides: 4.6 Maintain professional relationships with patients or clients Staff must: 4.6.1 Not take an unfair advantage of, or exploit any relationship with, patients or clients in any way, including not engaging in on-line friendships with patients or clients via social media; staff may accept patients and clients as members of their professional pages that contain information relating to the professional practice of the staff member 4.6.2 Not have any sexual relationship with a patient or client during a professional relationship. 1. The second was the Code of Professional Conduct for Nurses in Australia, published by the Nursing and Midwifery Board of Australia, first published in 1990 and revised in 2003 and 2006. Relevantly Conduct Statement 8 is titled "Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care". After referring to the inherent power imbalance between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation, the Code states that nurses must actively preserve the dignity of people through practised kindness and respect for the vulnerability and powerlessness of people in their care. The Code then states: 3. Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for, and between themselves and others, such as the person's partner and family and other people nominated by the person to be involved in their care. . . . 5. Sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances. Such relationships automatically raise questions of integrity in relation to nurses exploiting the vulnerability of persons who are or who have been in their care. Consent is not an acceptable defence in the case of sexual or intimate behaviour within such relationships. 1. Reference can also be made to Code of Ethics for Nurses in Australia published by the Nursing and Midwifery Board of Australia, published in 2010. This is described as a "companion document" to the Code of Professional Conduct for Nurses in Australia. As that Code notes, when a nurse crosses a professional boundary, they are generally behaving in an unprofessional manner and misusing the power in the relationship between him or her and their patient. 2. Given our findings as to the conduct of the sexual relationship between Mr Sullivan and his patient, Patient A, and given the obvious breach of the relevant professional and ethical codes of conduct referred to, we are satisfied that Mr Sullivan has engaged in unsatisfactory professional conduct as described in ss 139B(1)(a) and (l) of the National Law. 3. Given the repeated instances of unsatisfactory professional conduct that have been proven (and admitted), and the serious nature of the conduct, we are also satisfied that Mr Sullivan has engaged in professional misconduct as defined in s 139E of the National Law. 4. We agree entirely with Ms Banks that the conduct of Mr Sullivan, in entering into an agreement to pay for sex with Patient A, and entering into a relationship not once but twice with a vulnerable patient, was boundary crossing constituting the most serious violation of proper and ethical conduct by a nurse. We find that Mr Sullivan exploited a vulnerable and marginalised client for personal gain by offering and paying for sex. In doing so, he contravened his ethical and professional responsibilities to her. Mr Sullivan's behaviour and conduct fell significantly below the standard reasonably expected of a practitioner of his equivalent level of training and experience. Consideration 1. The disciplinary powers of the Tribunal are set out in s 149 of the National Law. The Tribunal has a range of powers which appear in ss 149A and 149B. 2. The relevant principles which guide the Tribunal in matters such as the present include the following: 1. the paramount consideration in proceedings is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31]; 2. the jurisdiction of the Tribunal is protective in nature, and not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. 3. the disciplinary outcome may have an element of personal deterrence. In NSW Bar Association v Meakes [2006] NSWCA 340 the Court of Appeal said at [114]: . . . it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). 1. in the exercise of its protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153; Health Care Complaints Commission v Howe [2010] NSWMT 12. This was referred to in Meakes at [114] as follows: There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services. 1. Given the seriousness of the conduct involved, we are of the view that, had Mr Sullivan still been registered, we would have cancelled his registration. As he is no longer registered, we must indicate the order we would have made. We were concerned when we heard Mr Sullivan say in evidence that he considered that he was still a risk to patients, in that he could not say that he would not be tempted himself to form a similar relationship in the future. This indicates that there is still a need to protect the public in the disciplinary outcome we propose to impose, and out disciplinary action must therefore indicate an element of personal deterrence as well as general deterrence. 2. We consider that, in addition to indicating that, had Mr Sullivan been registered we would have cancelled his registration, we should order that Mr Sullivan be disqualified from being registered as a registered nurse for a period of 18 months. 3. In this respect we note the authorities provided to us by the Commission, Health Care Complaints Commission v Nkomo [2014] NSWCATOD 7 and Health Care Complaints Commission v Grieve [2016] NSWCATOD 28. Both cases involved inappropriate sexual relationships between nurse and patient. In Nkomo the Tribunal noted that the respondent had "ignored professional boundaries and engaged in conduct that constituted a serious breach of trust and demonstrated a substantial lack of integrity": Nkomo at [97]. In Grieve the Tribunal characterised the conduct as being "a gross breach of the Respondent's professional obligations to his patient and an example of inappropriate exploitation of a vulnerable individual who had been the subject of his professional care": Grieve at [76]. We accept the Commission's submission that those words apply with equal force to the current matter. 4. In our view, given the seriousness of the conduct involved, we consider that Mr Sullivan should be disqualified from being registered as a registered nurse for a period of 18 months. This is a similar outcome to the authorities relied on by the Commission. Costs 1. Mr Sullivan suggested that his co-operation with the Commission, and his voluntary surrender of his registration at the time of the s 150 proceedings, were factors that warranted no order being made. We reject that submission. The Commission correctly submitted this is a costs jurisdiction, and that ordinarily costs should follow the event: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 2. As was stated in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85], In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and 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. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. 1. Mr Sullivan did not submit that his impecuniosity would be a factor in us not making a costs order against him. As we told him, even if he had, impecuniosity is not a justifiable reason for departing from that rule: Philipiah at [42]. However, this may be a factor in the Commission determining whether or not to recover its costs, and/or entering into an arrangement for the recovery of those costs. 2. While we do not excuse Mr Sullivan's behaviour in any respect, we do acknowledge his candour both to the Council and the Tribunal, and his cooperation with both bodies. Orders 1. We make the following orders: 1. if Mr Sullivan were still registered the Tribunal would have cancelled his registration; 2. Mr Sullivan is disqualified from being registered as a registered nurse for a period of 18 months; 3. the National Board is to record in the National Register the fact that the Tribunal would have cancelled Mr Sullivan's registration; 4. Mr Sullivan is prohibited from providing health services relating to drug and alcohol patients or mental health patients for the period of his disqualification; and 5. Mr Sullivan is to pay the costs of the Health Care Complaints Commission. ********** Attachment A (as amended by consent during the hearing on 24 May 2018) The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Nursing and Midwifery Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Stephen Sullivan ("the practitioner") [Mr Sullivan] of XXXXXX , being a person who was previously registered as a nurse under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under sections 139B(1)(a) and 139B(1)(l) of the National Law in that [Mr Sullivan] has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by [Mr Sullivan] in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/ or engaged in improper or unethical conduct relating to the practice or purported practice of nursing. BACKGROUND TO ALL COMPLAINTS 1. [Mr Sullivan] graduated from the University of Western Sydney in 1996 with a Bachelor of Nursing. [Mr Sullivan] was first registered as a nurse with the Nurses Registration Board of New South Wales on 6 January 1997. 2. At all times relevant to the complaint, [Mr Sullivan] was employed as a registered nurse on a casual basis at The Centre for Addiction Medicine at Cumberland Hospital ("CAM, Cumberland") and Fleet Street Opioid Treatment Unit, Parramatta ("Fleet Street OTU"). 3. Patient A has a history of drug abuse. In August 2015, Patient A relapsed into heroin use. In November 2015, Patient A began treatment as an outpatient at CAM, Cumberland. Patient A's treatment involved daily doses of Suboxone to aid her recovery and manage withdrawal symptoms. 4. On a number of occasions between November 2015 and August 2016, [Mr Sullivan] administered Patient A's daily dose of Suboxone or supervised another clinician administering Patient A's daily dose of Suboxone. Between November 2015 and February 2016, [Mr Sullivan] was involved in Patient A's daily dosing on approximately 20 occasions. PARTICULARS OF COMPLAINT ONE Between about mid December 2015 to early January 2016, [Mr Sullivan] failed to maintain proper professional boundaries by: disclosing personal information regarding his marital status to Patient A at a Christmas Barbeque social event held by CAM, Cumberland, in mid to late December; providing his mobile telephone number to Patient A at a Christmas Barbeque social event held by CAM, Cumberland, in mid to late December; meeting Patient A at her home in early January in response to a text form Patient A inviting him to visit her. 1. In about early January 2016, [Mr Sullivan] entered into an improper and unethical personal and sexual relationship with Patient A which included: 2. [Mr Sullivan] entering into an arrangement with Patient A whereby [Mr Sullivan] would pay Patient A money in exchange for sexual activity initiated by him in order to assist her with her financial difficulties; 3. [Mr Sullivan] having sexual intercourse with Patient A at her home and another location on about eight occasions between about early January 2016 and about mid February 2016; 4. [Mr Sullivan] paying Patient A a sum of money on the majority of the occasions they had sexual intercourse. 5. Between early January 2016 to mid to late February 2016, [Mr Sullivan] inappropriately continued to provide treatment to Patient A, in the form of administering or supervising the administration of Suboxone to Patient A in his role as a casual registered nurse at CAM, Cumberland and Fleet Street OTU whilst engaging in a personal and sexual relationship with Patient A. 6. On a date between 7 and 22 June 2016, [Mr Sullivan] failed to maintain proper professional boundaries by giving Patient A money to pay for a veterinary bill and by stating to Patient A that it was 'the least I can do in exchange for your silence'. 7. Between 7 June 2016 and 31 August 2016, [Mr Sullivan] resumed his improper personal and sexual relationship with Patient A. 8. On a date between 7 and 30 June 2016, [Mr Sullivan] failed to maintain proper boundaries by: 9. inviting Patient A to come on a holiday to Queensland with him in September 2016; and 10. by offering to assist Patient A in the process of obtaining 'takeaways' in circumstances where 'takeaways' was a reference to Suboxone and [Mr Sullivan] was still involved in administering Suboxone to Patient A at either CAM, Cumberland and/ or Fleet Street OTU. 11. On a date between 1 June 2016 and 31 August 2016, [Mr Sullivan] failed to maintain proper professional boundaries by: 12. Discussing suicide with Patient A, a person whom he knew to have made a previous suicide attempt; 13. Representing to Patient A, a person with a history of opioid abuse, that he had methadone at his house, including by way of a text message sent by [Mr Sullivan] to Patient A on 18 July 2016 that stated: 'I had that methadone ages before the xmas bbq because i wanted to kill myself but didnt have the guts to do it. then I threw it out when i decided i didn't want to die.' 1. On 2 July 2016, [Mr Sullivan] failed to maintain proper professional boundaries by offering to assist Patient A financially, stating in a text message: 2. 'lol. when rego due. i will be able to help next week if that helps'. On 2 July 2016, [Mr Sullivan] failed to maintain proper professional boundaries by purchasing alcohol for Patient A and attending her house to stay the night. On 19 July 2016, [Mr Sullivan] failed to maintain proper professional boundaries by offering to assist Patient A financially, stating in a text message sent to Patient A: 'Hi Lee. I just want you to know that if you ever get into financial difficulty like when suzie got sick, you can contact me and I will try to help. No strings attached. Between 17 June 2016 and 22 July 2016, [Mr Sullivan] failed to maintain proper professional boundaries by sending Patient A approximately 78 text messages, including the following text messages: On 17 July 2016, [Mr Sullivan] sent a text message to Patient A stating: '… I gave you my phone number because i liked you and wanted to get into your pants. I am disillusioned with women after being deeply hurt by the two women I married. I now dont want to get hurt again so that is why I don't get over excited about things.' On 17 July 2016, [Mr Sullivan] sent a text message to Patient A stating: '… When I with you its because I want to be in your company and doesnt matter if we have sex or not.' On 17 July 2016, [Mr Sullivan] sent a text to message Patient A stating: 'I am not trying to give you mixed messages. I like being with you sometimes and I like being on my own sometimes as well. I know you got hurt by him and there is no way I want to hurt you. I am aware of consequences about being with you and fully expect to find out soon what Fleet st is going to do about it… I think I might have to resign as a nurse.' On 19 July 2016, [Mr Sullivan] sent a text message to Patient A stating: 'I am sure your test will come out clean. I didnt sleep with anyone else since leaving wife… I liked you and yes probably did use you for sex in the early days. I am sorry if that offended you but i thought we had an understanding on that… I guess I won't get the full time job at Fleet st then. It was nice knowing you Lee. I do hope everything will work out for you. Always remember that you are a good person. Bye. On 20 July 2016, [Mr Sullivan] sent a text message to Patient A stating: '… I haven't done anything wrong except get involved with a patient. Yes I am worried about my job but if I get deregistered because of what happened between us then I will just have to suffer the consequences and go on the dole…' 1. From 7 June to 31 August 2016, [Mr Sullivan] inappropriately continued to provide treatment to Patient A, in the form of administering or supervising the administration Suboxone to Patient A in his role as a casual Registered Nurse at the CAM, Cumberland and Fleet Street Unit whilst engaging in a personal and sexual relationship with Patient A. Between 1 December 2015 and 31 August 2016, [Mr Sullivan] , by his conduct as set out in Particulars 1-12 above, breached the following guidelines: The NSW Health Code of Conduct, published by NSW Government Health on 15 December 2015; specifically Codes 4.2.3 and 4.6; The Code of Professional Conduct for Nurses in Australia, published by the Nursing and Midwifery Board of Australia, updated in 2010; specifically Conduct Statement 8. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that [Mr Sullivan] has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of [Mr Sullivan's] registration, or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of [Mr Sullivan's] registration. PARTICULARS OF COMPLAINT TWO The particulars set out in Complaint One are relied upon individually and cumulatively. 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 June 2018