Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hollis [2019] NSWCATOD 6 Hearing dates: 14, 15 November 2018 Date of orders: 02 January 2019 Decision date: 02 January 2019 Jurisdiction: Occupational Division Before: A P Coleman SC, Senior Member J Flood, Senior Member H Schutz, General Member S Kennedy, Senior Member Decision: (1) Pursuant to s 149C(4)(a) of the National Law order that if the respondent were still registered his registration would have been cancelled; (2) Pursuant to s 149C(4)(b) of the National Law order that the respondent is disqualified from being a registered nurse for 24 months; (3) Pursuant to s 149C(4)(c) of the National Law require the National Board to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board; (4) Pursuant to s 149C(5A) of the National Law order that the respondent is prohibited from working as an Assistant in Nursing and from providing any of the following health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether provided as a public or private service, unless and until he is registered as a nurse: (i) Therapy; (ii) Counselling (iii) Psychotherapy (iv) Hypnotherapy (v) Welfare services (vi) Mental health services (vii) Services provided in other alternative healthcare fields. (5) Pursuant to s 149C(7) of the National Law order that the respondent cannot seek a review of the orders made by the Tribunal for an 18 month period. (6) The Respondent is to pay the applicant's costs of the proceedings, as agreed or assessed. Catchwords: PROFESSIONS: Registered Nurse- Professional Misconduct, Disqualification and Protective orders made. Legislation Cited: Civil and Administrative Tribunal Act, 2013 Health Practitioner Regulation National Law (NSW) No 86a. Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186 HCCC v Do [2014] NSWCA 307 HCCC v Litchfield (1997) 41 NSWLR 630 HCCC v Reid [2018] NSWCATOD162 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Zachary Thomas Hollis (Respondent) Representation: Counsel: Mr S J Maybury (Applicant) Mr R Moore (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Maguire & McInerney (Respondent) File Number(s): 2018/00225741 Publication restriction: Under Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) an order is made prohibiting disclosure to any person or entity of the names of the patients set out in the schedule to the complaint. REASONS FOR DECISION Background 1. These reasons concern disciplinary proceedings brought by the Health Care Complaints Commission (HCCC) against former registered nurse, Mr Zachary Hollis. 2. By an application for disciplinary findings and orders filed 23 July 2018 the HCCC made two complaints against Mr Hollis. The first complaint alleged that Mr Hollis was guilty of unsatisfactory professional conduct under s139B of the and provided 16 particulars of that complaint. The second complaint alleged that Mr Hollis was guilty of professional misconduct under s139E of the National Law in that he had: 1. engaged in conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. engaged in more than one instance of unsatisfactory professional conduct, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. Mr Hollis, by his reply dated 30 October 2018, made certain admissions but also relied on a witness statement made by him, dated 29 October 2018, by way of explanation and/or clarification of those admissions. He also made denials of certain of the particulars of the first complaint. He accepted a finding of unsatisfactory professional conduct may be open but denied that he had engaged in professional misconduct. 2. On the first day of hearing, discussions between the parties with respect to amendments to the complaint and the particulars to that complaint, which would result in further admissions by Mr Hollis. The amended complaint was filed in the Tribunal by consent on the second day of the hearing. An amended reply to that complaint was also filed in the Tribunal. 3. The result of the amendments to the complaint and the amended reply, was that Mr Hollis admitted each of the particulars (as amended) of complaint one. Accordingly, Mr Hollis admitted that, subject to the views of the Tribunal as to whether such an order was appropriate, he had engaged in unsatisfactory professional conduct under s139B of the National Law. Mr Hollis continued to deny, however, that he had engaged in professional misconduct. 4. By reason of the admissions made by Mr Hollis to the factual matters given as particulars to complaint one, it will be unnecessary for the Tribunal in these reasons to make factual findings respect to those matters. It will, however, be necessary for the Tribunal to make certain other findings of fact relating to the admissions made by Mr Hollis in considering whether or not he has engaged in professional misconduct. 5. For the reasons outlined below, we find that Mr Hollis is guilty of professional misconduct. Orders as a result of this finding are set out at below. The Complaints and Agreed Factual Matters 1. As we have noted above, the complaint was amended at the commencement of the hearing. In the amended complaint there remain two complaints. The first is that Mr Hollis is guilty of unsatisfactory professional conduct under s139B of the National Law in that he has: (a) engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (b) engaged in improper or unethical conduct relating to the practice or purported practice of nursing. 1. The background to complaint one gives a summary of the matters relating to Mr Hollis, which are not disputed, and sets the factual context for that complaint and the particulars to that complaint. Those background matters, taken from the amended complaint, and which are accepted as factual findings are: BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a registered nurse in 2011. At all relevant times the practitioner was working at Shellharbour Hospital ("the Hospital"). The practitioner was first employed as a registered nurse at the Hospital in January 2012 in the Mirrabrook Mental Health Unit. The practitioner was suspended from duty on 26 October 2015. The practitioner surrendered his registration on or around 29 January 2016. Patient A suffers from schizophrenia, bi-polar disorder and has a lengthy history of alcohol abuse, deliberate self-harm and general substance abuse. Patient A was an inpatient at the Hospital in the Mirrabrook Mental Health Unit between 10 and 18 October 2012 ("the Mirrabrook admission"). On 18 October 2012 a Community Treatment Plan was imposed for a six month period. Patient A was a voluntary inpatient at the Hospital in the Mental Health Inpatient Unit Eloura East between 14 and 30 November 2012 ("the Eloura East admission"). Patient A was also a voluntary inpatient at the Hospital in the Mental Health Inpatient Unit Eloura East between 25 and 29 January 2013. 1. The particulars of complaint one are set out below. As we have recorded above, the amended reply to the amended complaint makes admissions to each of the particulars subject to a qualification with respect to the admission as to particular 11. We will deal with that qualification below. PARTICULARS OF COMPLAINT ONE 1. Between the Mirrabrook admission and the Eloura East admission, the practitioner failed to observe proper professional boundaries in circumstances where he had knowledge that Patient A had recently been admitted to Mirrabrook and that she had observed him working there as a nurse, in that he: (a) accepted Patient A's request for her to sit and have a cigarette with him outside Shellharbour Square; (b) engaged in social conversation with Patient A outside Shellharbour Square; (c) provided Patient A with his personal mobile phone number; (d) spoke with Patient A on more than one occasion on the telephone and in person. 2. On or around 30 November 2012, the practitioner failed to observe proper professional boundaries in that following Patient A's self-discharge he had personal contact with Patient A in that he: (a) collected Patient A from the Hospital; (b) escorted Patient A to his parents' home. 3. The practitioner failed to observe proper professional boundaries in that following Patient A's self-discharge on or around 30 November 2012 he invited her to stay with him at his parents' home for approximately two evenings. 4. Between approximately 11 December 2012 and 29 January 2013 the practitioner failed to observe proper professional boundaries in that he maintained a personal relationship and co-habited with Patient A in her rental property. 5. The practitioner commenced and maintained an inappropriate sexual relationship with Patient A between 11 December 2012 and 29 January 2013. 6. During the period of co-habitation in Patient A's rental property between 11 December 2012 and 29 January 2013, the practitioner engaged in conduct which was inappropriate having regard to the professional relationship between the practitioner and Patient A and her clinical history, in that he used cannabis on one or more occasions with Patient A's knowledge. 7. During 2013 and after the practitioner moved out of Patient A's rental property, he failed to maintain proper professional boundaries in that he continued to have direct or indirect personal contact with Patient A in that he left a poem on her doorstep. 8. The practitioner accessed Patient A's electronic medical records without permission or authority and without any clinical reason to do so on the following dates: 23 February 2013; 5 April 2013; 20 April 2013; 30 August 2013. 9. The practitioner failed to take appropriate steps to manage his relationship with Patient A in that at no time prior to October 2015 did he: (a) disclose to management that he had known Patient A prior to any of her admissions; (b) seek guidance from his employer or a senior colleague in relation to his personal contact with Patient A. 10. In late 2015 the practitioner made written statements to the Professional Practice Unit at South East Sydney Local Health District/Illawarra Shoalhaven Local Health District ("PPU") which were false or misleading in that he told the PPU, contrary to his signed statement of 29 October 2018 that claimed he met Patient A after she was admitted to Mirrabrook and before she was admitted to Eloura East, the following: (a) "I met the subject Patient A in the beginning of 2012. We had sexual relations on several occasions"; (b) "Patient A expressed her desire to enter a serious relationship with me however I declined as I had recently exited a long term relationship and wished to remain single. This I believed upset Patient A to what extent I am unaware however we agreed to stay friends."; (c) "I had fleeting contact with Patient A throughout the year [2012]"; (d) "Patient A made clear her desire to start a relationship with me however I was adamant with my original decision and made this clear to Patient A"; (e) "It had been sometime (several months) of no contact with Patient A when around November 2012 (I believe) Patient A was admitted to Mirrabrook where I work."; (f) "Soon after I texted Patient A stating I hoped everything was okay"; (g) "Patient A informed me the admission was over a trivial matter involving her mother and alcohol." 11. In late 2015 the practitioner denied that he engaged in the conduct particularized at Complaint One Particular Two during an interview on 29 October 2015, which was false or misleading in that the conduct is admitted in his signed statement of 29 October 2018. 1. With respect to particular 11, the qualification we have referred to is that Mr Hollis admits the particular, "but subject to the right to address the particular in address as identified to the Tribunal on 14 November 2018". As we understand the qualification to this admission, Mr Hollis accepts as a matter of fact that on or around 30 November 2012 he collected Patient A from the Hospital and escorted Patient A to his parents' home and that such conduct failed to observe the proper professional boundaries, but that his reasons for engaging in that conduct were so as to assist Patient A. We will deal with the submissions with respect to the qualification when we deal with whether or not Mr Hollis is guilty of professional misconduct. The Applicable Principles and Legislation 1. The applicable principles relevant to disciplinary proceedings under the National Law such as these are well-known. The overarching principle to be applied as mandated by s3 and s3A of the National Law are that in determining the proceedings the Tribunal must have the protection of the health and safety of the public as its paramount consideration. 2. As submitted by the HCCC in its outline of submissions, and as accepted by Mr Hollis, the jurisdiction to be exercised by the Tribunal is protective and is not exercised so as to punish the practitioner (see Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202). 3. It is accepted that the HCCC bears the onus of proof and that this onus is on the balance of probabilities applying the "Briginshaw" standard (Briginshaw v Briginshaw (1938) 60 CLR 336). 4. The relevant provisions of the National Law with respect to unsatisfactory professional conduct are relevantly as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience… 1. With respect to professional misconduct, the National Law provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. In HCCC v Reid [2018] NSWCATOD162 at [48] the Tribunal said: 48 Consideration of what constitutes unsatisfactory conduct and professional misconduct for the purposes of the National Law is explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21] as follows: 18 The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. 19 The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] over servicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] 20 There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 21 Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [footnotes omitted] Consideration The Evidence 1. The Tribunal had before it a bundle of material provided by the applicant (Ex 1) which included the initial complaint, relevant certificates of registration relating to Mr Hollis and his surrender of registration on 29 January 2016. The material also included an expert report by Mr Warren Shaw (which was supplemented by an additional report (Ex 2) following the amendment to the complaint and the additional admissions made by Mr Hollis). Parts of Mr Shaw's first report were not read. In summary, Mr Shaw's opinion was that the conduct that Mr Hollis had admitted was significantly below the standard expected of a practitioner of an equivalent level of training or experience. Mr Shaw was not cross-examined. 2. We also had before us the HCCC investigation report, transcripts of interviews with Mr Hollis, Patient A and her mother by the HCCC investigators, Mr Hollis's personnel records and the relevant medical records of Patient A. The Code of Professional Conduct for Nurses in Australia was received into evidence. 3. Mr Hollis put before the Tribunal a written statement dated 29 October 2018 (part of Ex A). That exhibit also contained Mr Hollis's academic transcript, references and a statement of a Mr Anthony Constable who was a work colleague of Mr Hollis at the Shellharbour Hospital. 4. Mr Hollis was cross examined on his statement and on matters relating to the particulars of complaint one. Whilst he did not seek to shrink away from any of the admissions he had formally made in his amended reply or in the statement, we formed the impression that he did try to minimise the otherwise objective seriousness of some of his conduct. That was most evident when he was answering questions on particulars 2 and 3 which relate to the circumstances surrounding Patient A's self-discharge from hospital on 30 November 2012 and her giving the address of Mr Hollis's parents as a place where she could stay on discharge. He also collected her from the front of the hospital and took her to his parents' house where she stayed for two days. 5. Mr Hollis dealt with this particular at [32] of his statement (noting that particular 2 of complaint one in the amended complaint was originally particular 7 of the original complaint). He sought to explain his conduct in respect to this particular by reason of him developing strong feelings for Patient A. He says he received a call from her from the Eloura East Unit. She told him that she wanted to leave the unit but that would not be possible unless he had a "discharge address", namely, an address at which she could reside on discharge from the hospital. He said that he said to her: "They will have to let you go if you have a place to go. Tell them "a friend" is going to collect you and take you into their care on your release. They will probably ask you for an address and you can say it is "xxxxxx (address provided)". This is my parents' house. You can stay with us for a few days. Give me a call when you have had the conversation and you are ready to be discharged and I will come and pick you up". 1. Mr Hollis subsequently collected Patient A from the front of the hospital and took her to his parents' house. It should be noted that he accepted that the version of events he gave in his statement before the Tribunal was different to the version he gave to the HCCC investigator in October 2015, which he now accepts was deliberately untruthful. 2. When cross examined about these events, Mr Hollis accepted that when he had this conversation with patient A he knew that she was in the Eloura East unit which was a mental health unit at the hospital. He accepted that on hearing that Patient A wanted to discharge herself he did not make any enquiries of her about why she had been admitted to the unit nor how long she had been admitted. Mr Hollis accepted he knew at this time that this was Patient A's second admission to an acute mental health unit in two months, yet he failed to make any enquiries as to her mental health or condition before offering her the assistance he did in order for her to be discharged. His explanation was that he thought the doctors would not discharge her if she was not well and if she did not want to be at the unit, it would be in her best interests if she was able to leave. However, he accepted that he had no plan or forethought as to where she would go, or what she would do, after the few days accommodation at his parents' house. 3. When questioned as to his apparent strong feelings for her at this time being the reason he offered assistance, he could not recall how many times he had spoken to her other than to note that "was a few" and it was the first time since she had been admitted to that unit. 4. We find this one of the most concerning and serious matters particularised against Mr Hollis. It is difficult to accept that if, as he would have it, there had been very little contact with Patient A, he had developed such strong feelings for her to provide the assistance he did. But even if he had developed strong feelings for Patient A at this time, the fact that he sought to enable her to facilitate her discharge in the manner he did without taking any steps to understand why she had been admitted to the Eloura East unit, the treatment she was undergoing or ascertain whether it was in her best interests (as a matter of treatment) for her to be discharged from the unit is conduct significantly below the standard expected of a registered nurse of his training and experience. In cross examination he did not seem to accept the significance of these matters but maintained he thought it was in her interests for her to be discharged if she did not want to be at the hospital. We find his maintenance of this position raises a significant concern as to his insight to his behaviour which is relevant to the orders we may make as discussed below. 5. At times during Mr Hollis's evidence he became quite emotional when answering questions on some of the particulars. No doubt that was due to the stressful situation he finds himself in and a belated recognition that his conduct will have significant consequences for the prospects of him returning to practice as a registered nurse. 6. Overall, whilst we formed the view that he was doing his best to tell the truth, his evidence at times demonstrated that he did not have the necessary degree of insight into the inappropriateness of his conduct. There were several examples of this, one of which we have already referred to. Another was in relation to his accessing Patient A's records on four occasions in February and April of 2013 and his asserted reasons for doing so. His evidence was that at the time he first accessed the records he had loved Patient A and was concerned about her, that there had been threats made against him by Patient A and he was seeking some kind of reassurance that she was ok by accessing her records. When it was pointed out to him that his relationship with Patient A had well and truly broken down by August 2013 and there was no reason to then access her records (not that there ever was a legitimate reason to do so), he maintained that he was still worried about her and wanted to check up on her. We do not accept any of his purported reasons for accessing Patient A's records when there was no proper reason for him to do so. Whilst he admits he should not have done so, we found his explanation of the reasons to be contrived. 7. There were several aspects of Mr Hollis's evidence that the applicant submitted should be found to be "inherently improbable". 8. First was his evidence that he had not read Patient A's medical notes when he was rostered on the ward during her first admission. Mr Hollis's evidence was that on shift handover the nurse in charge would do a brief for all patients on the ward. Each nurse would be allocated 4 patients to care for during the shift. Unless a patient was one of the 4 allocated to a nurse, Mr Hollis said it was the practice at the relevant units at the time, for a nurse not to read the notes of other patients even if they had to attend to them during the shift, unless there was a specific incident. Further, he said that notes for each patient prepared by nursing staff prior to the end of each shift would usually be prepared by one nurse even if that nurse had not been the primary caregiver for that patient during that shift. He said, however, before he prepared such notes, he would ask the nurse who did have the care of that patient what had happened during the shift. 9. This issue became relevant because Mr Hollis had prepared a note with respect to Patient A on 13 October 2012, shortly after her first admission to the Mirrabrook unit at Shellharbour Hospital on 10 October 2012. The entry made by Mr Hollis made on that day at 2020 hrs was: "Nursing: Consumer keeping low profile. Watching tv all shift. Adherent to any requests. R to wear armband" 1. When asked about this note and if it meant he had actually had engagement with Patient A, Mr Hollis said that he had one direct observation of Patient A (observing her watching TV) but not otherwise. That was because, he said, he remembered she was not one of the 4 patients allocated to him that shift. He said he did not have any other interaction with her, including making requests of her to which she was "adherent". He denied he had made any enquiries as to why she was admitted nor read her patient notes. He said to do so would "take up every chunk" of his day. When asked how it was, then, that he was could properly make the end of shift notes, he said he could not recall what information was provided on handover but he would have checked with Patient A's treating nurse before making these notes. 2. Similarly, in respect to an entry made by him on 18 October 2012 which noted that Patient A was "on leave, nil contact with ward", Mr Hollis was hesitant to accept that he had read the patient notes for her preceding that entry. He agreed that it was good nursing practice to do so but said he would only do so if he had the time or if the patient was one of the allotted 4 patients for his shift. 3. The applicant submitted that it was improbable that as a registered nurse Mr Hollis had not read the patient notes at all, or only in the manner he suggested. It submitted that as at the 13th of October 2012, Patient A was a new patient in the ward and it was improbable that Mr Hollis would not have read any of her notes to see why she was admitted and the nature of her condition. It submitted he gave this evidence to seek to avoid a finding that he knew that she had been admitted for a serious psychiatric condition and had this knowledge at the time he entered into the relationship with her. It submits that we should find that it is probable that Mr Hollis read the patient notes. 4. Alternatively, the applicant submits that if it is found that Mr Hollis did not read Patient A's notes it does him no credit as he knew she had been a patient on the mental health wards at Shellharbour Hospital but took no steps to find out why she had been admitted, or anything about her condition, before entering into the relationship with her. Such as finding, it was submitted, would still involve very serious misconduct by Mr Hollis. 5. We do not think it is necessary to resolve this issue by making a finding as to whether we accept or reject Mr Hollis's evidence on this matter. That is because, as the applicant submits, if as Mr Hollis says, he did not read Patient A's notes before making the entries in those notes either at the end of shift or otherwise, this would amount to conduct that would fall below that expected of a registered nurse of Mr Hollis's experience. In any event, he accepted that at the time his relationship with Patient A became more serious and she stayed at his parents' house and they then lived together, he knew she had been an inpatient at the mental health units of the hospital. 6. The applicant also submitted that Mr Hollis's evidence about the amount of contact with Patient A prior to her discharge from the Eloura East unit on 30 November 2012 was improbable. Patient A was discharged from her first admission at Mirrabrook on 19 October 2012. She was admitted to the Eloura East unit on 14 November 2012. Mr Hollis said in evidence that he had spoken on the phone with Patient A and had some contact with her but could not say how much or when. We formed the view Mr Hollis was trying to minimise the extent of the contact with Patient A. 7. The first contact with Patient A outside of the hospital was following her first discharge on 19 October 2012. It occurred at a local shopping centre when Patient A approached Mr Hollis and mentioned that she recognised him from the hospital and told him she had been a patient in the ward at which he was a nurse. He said when she spoke to him and said this, his memory was jogged as to her having been a patient. 8. The applicant submitted that it was improbable that there had been no contact between Mr Hollis and Patient A during her admission to the Eloura East unit on 14 November and before her discharge on 30 November. 9. We accept the applicant's submissions in this regard. We think it was probable that there was contact between Mr Hollis and Patient A during her second admission. That conclusion is reinforced by the fact that Patient A called Mr Hollis on 30 November when she was trying to discharge herself and he told her to give his parents' address as her discharge address. He then collected her from the front of the hospital and took her to his parents' house where she stayed for a few nights. As recalled above, Mr Hollis says by this time he had developed strong feelings for her. We find it is improbable that such feelings could have been formed, to the extent that Mr Hollis was prepared to do what he did in assisting Patient A discharge from hospital, without there having been more contact than Mr Hollis was prepared to admit. 10. Because Mr Hollis has admitted all of the particulars to complaint one, it is not necessary to canvass all of the matters he was cross-examined on. In so far as his evidence may be relevant to any orders we make, we will refer to that evidence below. Is the Respondent Guilty of Unsatisfactory Professional Conduct? 1. As we have recorded above, at the hearing, on filing of the amended reply, Counsel for Mr Hollis accepted that by reasons of the admissions to the amendment to the particulars of complaint one, subject to the Tribunal being satisfied that it was appropriate, there would be a finding of unsatisfactory professional conduct. 2. A consideration of the particulars to which admissions have been made lead us to be comfortably satisfied that there should be a finding that Mr Hollis is guilty of unsatisfactory professional conduct. We are fortified in this view by the expert report of Mr Shaw who reaches that conclusion with respect to each of the particulars on which he opined. 3. We will deal with some of the specific particulars below when we consider whether Mr Hollis is guilty of professional misconduct, however, it can be seen that he has admitted to conduct which is well below the knowledge, skill and judgment reasonably expected of a registered nurse of his equivalent training and experience. Was the Respondent Guilty of Professional Misconduct? 1. As Basten J said in the extract above at [16], there is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of the practitioner's registration. The only requirement is that the conduct be "sufficiently serious" to justify that order. This is a characterisation that depends on the Tribunal making an evaluative judgement of the relevant conduct. 2. The question for the Tribunal thus becomes the evaluative one mentioned by Basten J, having regard to the conduct admitted to by Mr Hollis, both as a whole and with respect to the particular individual particulars which are alleged of themselves to amount to professional misconduct. Before turning to this question, we will record the submissions of the parties. The Applicant's submissions 1. The applicant submitted that the evidence disclosed a significant and escalating course of boundary violations by Mr Hollis in his dealings with patient A whom he knew was a mental health patient. The relationship escalated from him giving her his mobile phone number, which itself involved an invitation for further personal contact, to co-habitation with Patient A and an ongoing sexual relationship for some months. It included use of illicit drugs with a person whom he knew, as a mental health patient, may have had additional impact on her mental health. 2. The applicant submitted that the accessing by Mr Hollis of Patient A's confidential medical records evidenced a severe misuse of his position as a registered nurse and a gross breach of trust. 3. The applicant submitted that the assistance Mr Hollis gave to Patient A in her effecting her self-discharge from hospital on 30 November 2012 by telling her to use his parents address as a discharge address, involved a further very substantial escalation of the relationship. Indeed, this led to the subsequent co-habitation and sexual relationship between Mr Hollis and Patient A. The applicant submitted that by the time he assisted Patient A with her discharge on 30 November 2012 there had clearly been a professional relationship between Mr Hollis and Patient A. Although Mr Hollis had tried to disavow this, it was clear on the evidence that she had been a patient under his care and he had made notes about her. 4. After her initial discharge there was the contact at the shopping centre where Patient A spoke to Mr Hollis and reminded him that she had been a patient and he had been a nurse on her ward– the contact only arose because there had been the professional relationship. 5. This improper conduct was aggravated because Mr Hollis knew, or should have known, that Patient A had serious mental health issues which he chose to ignore as it suited his purposes to get to know her better as he was attracted to her. The applicant submitted that such conduct, in effect, amounted to grooming type behaviour which makes Mr Hollis's conduct more serious and is a matter relevant to any disqualification order. 6. The applicant also submitted that the misconduct on Mr Hollis's part continued during the period of cohabitation with Patient A. Apart from the inappropriateness of the relationship, including sexual relations, Mr Hollis engaged in taking illicit drugs with Patient A which was particularly dangerous for someone with her condition and is illustrative of his lack of judgment. 7. The applicant submitted that the Tribunal should have serious reservations as to whether Mr Hollis accepts that all of the conduct complained of is inappropriate. Whilst Mr Hollis should be given credit for now admitting he lied to the HCCC investigators in October 2015, the applicant submitted that the Tribunal should be careful in accepting Mr Hollis's evidence which was designed to minimise the seriousness of his conduct. Further, at no time has Mr Hollis thought of the effect that the lies he told to the HCCC investigators in 2015, let alone his conduct, has had on Patient A. This was relevant to his lack of insight and weighed in favour of a disqualification order. 8. The applicant noted that Mr Hollis had not put before the Tribunal any evidence that he had sought any treatment or undertaken any education or training since he surrendered his registration. It submitted that he poses a significant risk of engaging in the same or similar conduct. 9. In all of the circumstances, the applicant submitted that it was clear that Mr Hollis was guilty of professional misconduct. The Respondent's Submissions 1. The respondent accepted, as we have noted, that subject to the Tribunal thinking it appropriate to make such a finding, that the conduct to which he admits constituted unprofessional conduct. 2. The respondent does not accept, however, that an assessment of the conduct of Mr Hollis at the time he engaged in it would lead to a finding of professional misconduct. He submitted that the Tribunal needs to assess his conduct having regard to his experience at the time, which the evidence shows, was that he had some limited experience in aged care, some minimal experience specialising in dementia. 3. The respondent submitted that he had performed his roles in providing those service appropriately. He then wanted to pursue a career in mental health nursing. He did this. 4. The respondent noted that in October 2012 he had only been a nurse on the acute mental health ward for 10 months. He had not had significant experience in mental health units at the time of the conduct. He had interacted with patients with empathy and appropriately. He remains a person who is capable of giving great care as a nurse. He likes caring for people and although he had handed in his registration and did not wish to return to nursing, he now candidly says that he has come to terms with himself and does wish to return to the profession. He wants to re-apply for registration when he feels the time is right for him. 5. As to the matters in particular 2, he submitted that the doctors at the hospital would not have let Patient A be discharged if she was too unwell. Further, he submitted he was helping Patient A in assisting her leave when she did not want to stay at the hospital. 6. In all of the circumstances the respondent submits that the conduct does not amount to professional misconduct. He accepts what he did was wrong. He accepts that he should not have lied to the HCCC investigators but he was fearful of losing his job which he had worked so hard to attain. He was not thinking straight at that time and did not then, as he has now, involve family or legal assistance. 7. In relation to the accessing of the records he submits that he was scared because of threats made to him and still had residual feelings for Patient A. 8. He referred to the references provided and the witness statement of Mr Constable to show that he is a good worker and a valued colleague. Conclusion on Professional Misconduct 1. In our view, a consideration of all of the particulars to complaint one taken together, which have (except for particular 11) been unqualifiedly admitted by Mr Hollis, lead to the conclusion that the conduct amounts to conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Hollis's registration as a nurse. We find, therefore, that his conduct amounts to professional misconduct. 2. With respect to his qualified admission to particular 11 of complaint one, we do not think this changes the position. Particular 11 is as follows: 11. In late 2015 the practitioner denied that he engaged in the conduct particularized at Complaint One Particular Two during an interview on 29 October 2015, which was false or misleading in that the conduct is admitted in his signed statement of 29 October 2018. 1. Particular 2 to complaint one is as follows: 2. On or around 30 November 2012, the practitioner failed to observe proper professional boundaries in that following Patient A's self-discharge he had personal contact with Patient A in that he: (a) collected Patient A from the Hospital; (b) escorted Patient A to his parents' home. 1. Mr Hollis was interviewed by an HCCC investigator on 29 October 2015. At that interview, Mr Hollis was asked questions about Allegation 2 as it was then framed. Whilst that allegation dealt with the circumstances at which Patient A was self-discharged from the Hospital on or around 29 November 2012 it contained factual allegations different to those in particular 2 of complaint one referred to above. 2. Whilst it is true that Mr Hollis's denials of the matters put to him at that time were accurate in the sense that the allegations now particularised in particular 11 are substantially different to those then raised with him, as the applicant submits, Mr Hollis was not completely forthcoming with the investigator at that interview in respect to the circumstances of how it was that Patient A came to give his parents address as a discharge address. Indeed, Mr Hollis denied, at least impliedly, any knowledge of how Patient A obtained his parent's' address as the one to give in order to secure her voluntary discharge from the Hospital. At best, Mr Hollis's answers on this issue were misleading. As the facts recited above indicate he actively assisted Patient A in achieving her discharge by advising her to give his parents' address as the discharge address and then picking her up from hospital. As such, we did not think the qualification assists Mr Hollis. 3. Mr Shaw, the expert called by the applicant, who was not cross examined, opines that each of the matters now admitted by Mr Hollis, was conduct that was significantly below the standard expected of a practitioner of an equivalent level of training and experience. He opined that each of those departures from the relevant standard invited his strong criticism. We agree. Taking all of the conduct together, we think the only appropriate finding is one of professional misconduct. 4. We do not accept the submissions of Mr Hollis that his limited experience at the time of the conduct should reduce the seriousness of the conduct such that there is no finding of professional misconduct. We find that the particulars of misconduct admitted to by Mr Hollis were of such a serious nature, and of multiple varieties, that a finding of professional misconduct must follow even for a nurse of his relatively limited experience. Exercising the evaluative judgment required, we conclude that the conduct reveals that Mr Hollis should not be allowed to practice unless, at a future date, he is able to satisfy the Tribunal that the defects in his character exposed by the conduct have been overcome. 5. We also agree with the applicant that the matters in particulars 2, 3, 4 and 5 individually amount to professional misconduct. 6. We have dealt with particular 2 above. As we there observed, we find that Mr Hollis's conduct in assisting Patient A to be discharged from hospital to his parents' address without him having any understanding of her condition or treatment, was a most serious departure from the required standard of a nursing practitioner. Further, this was conduct which dramatically escalated the personal relationship between Mr Hollis and Patient A which led to their co-habitation and the sexual relationship (which are the matters in particulars 3, 4 and 5). 7. We also conclude that the matters in particular 6 (the use of cannabis on one or more occasions with Patient A) having regard to her clinical history which Mr Hollis knew, or should have known, was so serious a departure from the required standard as to constitute professional misconduct. The Appropriate orders 1. Having made the finding that Mr Hollis is guilty of professional misconduct we turn now to consider the appropriate orders. We set out s 149C of the National Law, in so far as is relevant: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. … (4) If the person is no longer registered, the Tribunal may— (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following— (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order— (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The Applicant submitted that the following orders should be made: 1. Pursuant to s 149C(4)(a) the Tribunal orders that if the practitioner were still registered, his registration would have been cancelled or suspended; 2. Pursuant to s 149C(4)(b) the Tribunal orders hat the practitioner is disqualified from being a registered nurse for at least 18 months; 3. Pursuant to s 149C(4)(c) the Tribunal requires the National Board to record the fact that the Tribunal would have suspended or cancelled the practitioner's registration in the National Register kept by the Board; 4. Pursuant to s 149C(5A) the practitioner is prohibited from working as an Assistant in Nursing and from providing any of the following health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether provided as a public or private service, unless and until he is registered as a nurse: 1. Therapy; 2. Counselling 3. Psychotherapy 4. Hypnotherapy 5. Welfare services 6. Mental health services 7. Services provided in other alternative healthcare fields' 1. Pursuant to s 149C(7) the practitioner cannot seek a review of the orders made by the Tribunal for an 18 month period. 1. Mr Hollis submitted (correctly) that even if the Tribunal found professional misconduct it still had the discretion as to what orders it made. It was not required to cancel his registration or impose a time prohibition as to when he could reapply for registration. It was submitted that he has effectively been out of nursing for three years since he handed in his registration and it should be left to him as to when he reapplies. It was submitted that there is a benefit to the public in Mr Hollis, once readmitted, being able to practice his profession and provide care for the public. 2. Mr Hollis submitted that currently the community is protected as he is not registered. He submitted that the protective orders sought in (d) above are too broad and he should, if he chooses, be permitted to go back to work in services such as aged care. He submitted there should be no protective orders but, if there were, they should not be as restrictive as those sought. We have already referred to the mandate of s 3A of the National Law that the Tribunal's paramount concern is the protection of the health and safety of the public. Additionally, s 3(3)(c) provides that restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3. We have had regard to the principles set out in [25]-[37] of the written submissions of the applicant and the authorities there cited and the oral submissions of the respondent. We have considered Mr Hollis's conduct as a whole and make the orders below to protect the public, to maintain the public confidence in the standards of the nursing profession and also by way of deterrence to the general body of practitioners. The orders we make seek signal that those whose conduct does not meet the required standards will not be permitted to practise (see HCCC v Do [2014] NSWCA 307 at [35]; HCCC v Litchfield (1997) 41 NSWLR 630). 4. We have also had regard to any steps taken by Mr Hollis since the conduct was engaged in. Whilst it is true that he has now seen fit to engage with his family and seek their support and obtain legal advice, there was no evidence that he had undertaken any other treatment for issues he may be facing. He was several times visibly emotional in recounting the events the subject of the complaint and said he would like to come back to nursing when he feels he is ready. There was no psychological or other evidence put before the Tribunal to assist us in understanding when that may be. We have taken into account the fact that Mr Hollis has now admitted that he gave deliberately false answers to the HCCC investigators in October 2015. Whilst that is to his credit, the fact that he did so in order to minimise what he must have known by then was his wrongful conduct and without any consideration of the effects this may have on Patient A, is not a matter which goes in his favour. 5. We have formed the view that the orders sought by the applicant are generally appropriate. We consider that a period of 24 months disqualification is an appropriate period having regard to the seriousness of the conduct. We consider that the conduct admitted to is of such a nature that in the exercise of the discretion conferred on the Tribunal under s 149C(4) we should make the orders sought by the applicant. 6. We also consider that protective orders are necessary. We have formed this view having seen Mr Hollis in the witness box and observed him and listened to his evidence carefully. As we have set out above, we do not think Mr Hollis fully understands, or accepts, the seriousness or gravity of the conduct he engaged in. We do not think he has shown sufficient insight to his behaviour. As such, we have formed the view that if he is permitted to provide health services he would pose a substantial risk to the health of members of the public. Costs 1. It is not in dispute that the Tribunal has power under Schedule 5D, clause 13 of the National Law to require the respondent to pay the costs of the applicant. 2. It is accepted by the respondent that costs ordinarily follow the event. The respondent submits, however, that by reason of the late substantial amendments to the complaint, which generated further admissions, the applicant should only be entitled to 80% of its costs. 3. The applicant notes that the statement of Mr Hollis was late in being provided which then generated further amendments to the complaint. Until then, several matters had not been admitted. Further, it submits that the matter had to proceed to a full hearing as the respondent did not admit professional misconduct. 4. In the circumstances, in the exercise of our discretion, we have formed the view that the applicant has been wholly successful in the proceedings. It is true that the admissions lately made by the respondent perhaps shortened the hearing, but as the applicant submitted, the hearing was necessary and those admissions could have been made earlier. 5. Accordingly, cost should follow the event and we order that the respondent is to pay the applicant's costs of the proceedings, as agreed or assessed. Orders 1. For those reasons we make the following orders: 1. Pursuant to s 149C(4)(a) of the National Law order that if the respondent were still registered his registration would have been cancelled; 2. Pursuant to s 149C(4)(b) of the National Law order that the respondent is disqualified from being a registered nurse for 24 months; 3. Pursuant to s 149C(4)(c) of the National Law require the National Board to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board; 4. Pursuant to s 149C(5A) of the National Law order that the respondent is prohibited from working as an Assistant in Nursing and from providing any of the following health services as defined by s 4 of the Health Care Complaints Act 1993 (NSW), whether provided as a public or private service, unless and until he is registered as a nurse: 1. Therapy; 2. Counselling 3. Psychotherapy 4. Hypnotherapy 5. Welfare services 6. Mental health services 7. (vii) Services provided in other alternative healthcare fields. 1. Pursuant to s 149C(7) of the National Law order that the respondent cannot seek a review of the orders made by the Tribunal for an 18 month period. 2. The Respondent is to pay the applicant's costs of the proceedings, as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 23 January 2019 - Coversheet orders corrected. Paragraph 4 "the Tribunal was told that there had been" deleted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2019