Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Moses (No 2) [2019] NSWCATOD 190 Hearing dates: 29 August 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member A Bizzotto, Senior Member J Sillince, General Member Decision: (1) The respondent is reprimanded. (2) The following conditions are imposed on the registration of the respondent; (a) The respondent is to attend for ongoing treatment by a psychologist or psychiatrist for a period of at least 12 months. The frequency of that treatment is to be determined by the practitioner. (b) The respondent is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any failure to attend for treatment, the termination of treatment or any significant change in his health status (including a significant temporary change in that status). (c) The respondent is subject to mentoring in accordance with the Nursing and Midwifery Council of NSW Mentor Guidelines for a period of 12 months (3) The respondent is to pay the applicant's costs assessed in default of agreement. Catchwords: PROFESSIONS AND TRADES – health practitioner – mental health nurse – relationship with former patient after termination of involvement in treatment – held constitutes professional misconduct – reprimand imposed – practice conditions imposed – costs order Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Cheng (No 2) [2017] NSWCATOD 93 Health Care Complaints Commission v Dr McCroary [2019] NSWCATOD 115 Health Care Complaints Commission v Moses [2019] NSWCATOD 64 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Andrew Michael Moses (Respondent) Representation: Counsel: N Evans (Applicant) L Andelman (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Agent: New South Wales Nurses and Midwives' Association (Respondent) File Number(s): 2018/00269912 Publication restriction: Non publication order with respect to the name of Patient A and any information which might tend to identify that person. REASONS FOR DECISION Background 1. These proceedings are constituted by a Further Amended Complaint brought by the applicant Health Care Complaints Commission alleging that the respondent Andrew Michael Moses is guilty of professional misconduct under the Health Practitioner Regulation National Law ("the National Law") arising out of the performance of his profession as a nurse. 2. In Health Care Complaints Commission v Moses [2019] NSWCATOD 64 we found the respondent guilty of unsatisfactory professional conduct and stood the proceedings over for further hearing to enable the respondent to obtain additional evidence. In doing so we reserved for further consideration whether the respondent was guilty of professional misconduct. These reasons for decision flow from that further hearing. 3. For the purpose of the proceedings the respondent admitted that he was guilty of unsatisfactory professional conduct and admitted each of the particulars of Complaint One, save for particular 8b. These admissions assisted in shortening the proceedings, and in confining the issues to 1. the one remaining particular of Complaint One, 2. whether the respondent was guilty of professional misconduct as alleged in Complaint Two, and; 3. whether any and what protective and other orders should be made consequent upon any such findings. 1. Whilst it will be necessary to have regard to the contents of our earlier decision, for ease of reference we set out again the provisions of the Complaint in its amended form; 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 Mr Andrew Moses ("the practitioner") of (address deleted) NSW being a Registered Nurse registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment 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 ii. engaged in improper or unethical conduct relating to the practice or purported practice of nursing. BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as an Enrolled Nurse in 2006. He completed his Bachelor of Nursing at the Australian Catholic University in 2008 and was first registered as a Registered Nurse in January 2009. The practitioner started working at the Lakeside Clinic at Warner's Bay Private Hospital ("the Lakeside Clinic") in 2009 and resigned in March 2015. Patient A had numerous admissions to the Lakeside Clinic between 2011 and 2015. During this time, the practitioner nursed Patient A while she was an inpatient, and was her primary care nurse during some of her admissions. On 18 May 2015, the practitioner commenced work as a community mental health nurse for the Lake Macquarie Mental Health Service ("LMMHS"), part of the Hunter New England Local Health District ("HNELHD".) In late May 2015, Patient A presented at the LMMHHS. On 27 November 2015, the practitioner resigned from his position at the HNELHD. Patient A has had a long history of mental health issues and has previously been diagnosed with borderline personality disorder, bipolar II disorder and post-traumatic stress disorder. In April 2011, her treating psychiatrist confirmed her diagnosis of borderline personality disorder. Patient A's recent history in 2015 included frequent suicidal ideation, self-harming behaviours and a number of suicide attempts. PARTICULARS OF COMPLAINT ONE 1. On or around the period between 18 March and 18 May 2015, the practitioner failed to observe proper professional boundaries with Patient A in that he: a. attempted to make contact with Patient A after he had resigned from the Lakeside Clinic including: i. by providing a gym instructor at the Lakeside Clinic with his mobile telephone number to pass on to Patient A; ii. by requesting Patient A's mobile telephone number from a gym instructor at the Lakeside Clinic; iii. by contacting the secretary of Patient A's treating psychiatrist's and providing her with his mobile telephone number to pass on to Patient A; iv. by contacting Patient A's treating psychiatrist's secretary and requesting she provide him with Patient A's mobile telephone number. 2. On 5 May 2015, the practitioner failed to observe proper professional boundaries with Patient A after she sent him a text message in that he responded to and maintained telephone communication with Patient A in the following manner; a. sent approximately 24 text messages to Patient A; b. received approximately 61 text messages from Patient A. 3. Between 5 May and 9 September 2015, the practitioner failed to observe proper professional boundaries with Patient A in that he: a. had frequent telephone contact with Patient A which included: i. approximately 20 telephone calls to Patient A, including calls of up to 33.76 minutes in duration; ii. approximately 182 text messages sent to Patient A; iii. approximately 6 telephone calls received from Patient A; iv. approximately 371 text messages received from Patient A; v. approximately 24 multimedia messages received from Patient A; b. had discussions with Patient A on the telephone about her health and personal circumstances, including Patient A expressing thoughts of self-harm and suicidal ideation; c. exchanged photographs with Patient A via text message that were personal in nature; d. included the words "I love you" or words to similar effect in one or more than one text message sent to Patient A; e. after being told by Patient A's psychiatrist on or around 1 September 2015 to cease all contact with Patient A, said the following or words to similar effect to Patient A, contrary to the advice and recommendations of Patient A's psychiatrist: i. "don't tell anyone we are still in contact"; ii. "we aren't doing anything wrong"; iii. "don't listen to anyone else…it's fine to keep talking". 4. In August 2015 on a date unknown, the practitioner failed to observe proper professional boundaries with Patient A in that he visited Patient A while she was an inpatient at the Lakeside Clinic in circumstances where he was no longer employed by the Lakeside Clinic, was not involved in Patient A's care and had no therapeutic reason to do so. 5. In or around the period from March 2015 to 9 September 2015, the practitioner failed to observe proper professional boundaries with Patient A in that he asked her to participate in his university assignment which would involve him asking Patient A about her experience with drugs and alcohol. 6. On or around 1 to 4 September 2015, the practitioner failed to maintain proper professional boundaries with Patient A after being asked by Patient A's treating psychiatrist to cease all contact with Patient A in that he continued to have contact with Patient A in the following manner: a. on 1 September 2015, the practitioner sent one text message to Patient A and received one text message from Patient A; b. on 4 September 2015, the practitioner sent approximately ten text messages to Patient A and received approximately thirteen text messages from Patient A between 18.52 and 22.09; c. on 4 September 2015, the practitioner called Patient A at 22.11 and spoke with her on the telephone for 32.8 minutes. 7. On 4 September 2015 (the birthday of both the practitioner and Patient A), in circumstances where the practitioner was aware of Patient A's history of deliberate self-harm and suicide attempts, the practitioner failed to communicate with the patient in a manner consistent with the appropriate standards of care in that during a personal telephone conversation and text message exchange with Patient A where she disclosed suicidal ideation to him the practitioner made comments to the patient to the following effect: a. "I don't want you to go, but I respect your right to choose if that is what you want"; b. "if you decide to do anything to yourself, delete all my of our contact first messages before you do anything, I don't want them found"; "I want you to understand that if you went through with it, and our conversations were found, there would be consequences for me"; c. "don't do anything to yourself tonight because it's my birthday too and I don't want my birthday to be the day you died." 8. The practitioner failed to appropriately manage the matters referred to in Particular (7) above in that he: a. did not provide supportive counselling over the telephone when Patient A disclosed suicidal ideation; b. did not consider the role that his termination of the personal relationship with Patient A may have had on her condition at the time; c. did not contact support services such as the After Hours Mental Health Access team or the police to provide immediate intervention to ensure Patient A's safety; d. did not refer Patient A to support services including those referred to in (c) above; e. did not contact Patient A's treatment team to alert them to Patient A's thoughts of self-harm and suicidal ideation. 9. In or around the period from March 2015 to 9 September 2015, the practitioner failed to appropriately manage issues arising in relation to maintaining professional boundaries with Patient A in that he: a. failed to inform Patient A that his communication with her referred to in Particulars (2) and (3) above was a breach of professional boundaries and that ongoing contact would be inappropriate; b. failed to advise Patient A at any time to make contact with her treatment team so she could be supported in dealing with the inappropriate contact with the practitioner; c. failed to advise Patient A's treatment team of his inappropriate contact with Patient A so they could manage any potential negative outcomes or risk factors for Patient A arising from the inappropriate contact, including exacerbation of substance use or self-harming behaviours; d. failed to discuss his request that Patient A participate as a subject in his assignment about drug and alcohol use, as referred to in Particular (5) above, with Patient A's treating psychiatrist or another member of her treatment team; e. failed to inform his employer LMMHS of his contact of a personal nature with Patient A and the potential conflict of interest that may arise when Patient A presented at LMMHS; f. attended a meeting at LMMHS in which Patient A's care was discussed and subsequently discussed the details of this meeting with Patient A; g. failed to seek appropriate advice or guidance about the management of maintaining professional boundaries with Patient A from his employer or a senior colleague. 10. The conduct in any of Particulars (1), (2), (3), (4), (5), (6), (7), (8) and/or (9) is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct. COMPLAINT TWO Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. 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 the practitioner's registration PARTICULARS OF COMPLAINT TWO 1. Particulars (2), (3), (4), (6), (7), (8) and (9) of Complaint One are repeated and relied upon individually. 2. The particulars identified in Complaint One are repeated and relied upon cumulatively. The evidence of Dr Peter Joseph Corrigan 1. During the course of the further hearing we received evidence from Dr Peter Corrigan consultant psychiatrist who had treated the respondent and who provided an opinion about any likelihood that the respondent would again engage in misconduct of this kind in the future. 2. Dr Corrigan had first become involved in treating the respondent in 2010 and has continued to treat him at regular intervals with successful results. Dr Corrigan also came to know the respondent as a registered nurse working at Lakeside Clinic Private Hospital although the respondent had not worked there as part of his team. 3. The respondent first discussed the particulars of the complaints which are the subject of these proceedings with Dr Corrigan on 23 November 2015. On 21 December 2015 Dr Corrigan had a lengthy discussion with the respondent as to why he had overstepped the appropriate boundaries with the patient. Dr Corrigan said that the breaches had occurred because the respondent lacked insight "around the processes of countertransference." As we understand Dr Corrigan's report, his opinion is that the likely motivating trigger for the respondent's conduct was his "countertransference of care" into wanting to pursue a friendship with this patient (which) originated from a need within him to provide care and concern that other health professional (sic) weren't providing, in the naïve assumption that this would "save" her. I do not believe there was any sexual motivation to his behaviour." 4. Dr Corrigan expressed the opinion that the respondent had progressed from that position over the last three and a half years and now appeared to operate in a professional capacity with strict boundaries. He noted the impact that the circumstances of the complaint had had on the respondent, on his capacity to find work, and that the prosecution of the complaint had taught him that if countertransference feelings should again arise in the course of his work the respondent should address them by way of clinical supervision. He thought that it was "highly unlikely that he would engage in similar unprofessional conduct." In addition, Dr Corrigan noted that subsequently the respondent has completed a Masters in Nursing and has continued in a psychotherapeutic relationship with a clinical psychologist. Furthermore, the knowledge that professional misconduct might bring about termination of registration was also a strong motivation for the respondent not to reoffend. 5. Dr Corrigan concluded his report by stating that he believed that the respondent "sees the real relevance to the maintenance of these professional boundaries for the benefit of the patient and how unconscious processes can motivate people, at times, to want to offer more than they should in their role – in this case, as a registered nurse." He expressed confidence that the respondent was fit to practise as a registered nurse including in the field of mental health. 6. During the course of oral evidence Dr Corrigan stressed that he did not regard the respondent as acting in a manipulative or exploitative manner. He regarded his conduct as resulting from naïveté and poor judgement rather than preying on the vulnerability of the patient. 7. In our earlier decision at [22]-[23] we referred to a conversation between Patient A's treating psychiatrist Dr Hinton and the respondent in which the respondent had been told not to make further contact with the patient. Nevertheless, the respondent did telephone the patient and did have a conversation with her. The respondent had explained that he had done so because he wanted to inform the patient personally that he would not have any further contact with her, and because he thought that this would lessen any adverse consequences for the patient. In his evidence, Dr Corrigan said that he did not regard this as an act of direct defiance on the part of the respondent but as a further manifestation of the respondent's naïve desire to care for the patient. 8. Dr Corrigan regarded the failure to have regard to the possibility of transference and countertransference as a not uncommon mistake in the area of mental health. He thought it was appropriate that the respondent engage in a mentoring process if he returned to work as a mental health nurse. Dr Corrigan noted that it was common for psychiatrists to engage in peer review every fortnight. He did not regard the respondent as requiring close supervision. Professional misconduct 1. As we have already observed, we have concluded that the respondent is guilty of unsatisfactory professional conduct as that conduct is defined in the National Law. For completeness we note that the respondent conceded that he was also guilty with respect to all of the Complaints and particulars thereof save for Particular 8b. In our earlier decision we found this Particular proven. 2. The applicant asserted and the respondent denied that he was guilty of professional misconduct. This is defined in the National Law in the following terms; 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. It is a precondition to the establishment of professional misconduct that the respondent has been found guilty of unsatisfactory professional conduct, as is obvious from the provisions of section 139E. Because of the competing submissions made on behalf of each of the parties concerning the guilt or otherwise of the respondent of professional misconduct, it is necessary that we consider the definition of unsatisfactory professional conduct contained in section 139B of the National Law. We set out below those parts of this section which are relevant to these proceedings; 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. (b) to (k) omitted (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. The gravamen of the definition of unsatisfactory professional conduct contained within subsection (1)(a) of section 139B is a finding that the respondent has engaged in conduct as described which is "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." Accordingly, it is necessary to establish what conduct is constituted by that standard, and whether the respondent's conduct is significantly below that standard in the display of his knowledge, skill or judgement or the care exercised by him in the practice of his profession as a nurse. 2. The relevant evidence concerning the standard reasonably expected of a practitioner of an equivalent level of training or experience was provided by the expert witness, Christine Muller. A summary of her evidence is set out in [29] and following in our earlier decision. Ms Muller was critical of the conduct of the respondent in the manner in which he maintained contact with Patient A after he ceased his involvement in her treatment. 3. The nature and extent of this contact are set out in the Particulars 1 to 7 of Complaint One. The nature and extent of the manner in which the respondent failed to manage his contact with Patient A are set out in Particulars 8 and 9 of Complaint One. It is uncontroversial that the patient had had a long history of mental health issues, had been diagnosed with borderline personality disorder, bipolar 2 disorder and post-traumatic stress disorder. Her history in 2015 included suicidal ideation, self-harming behaviours and suicide attempts. She was an emotionally vulnerable person. 4. We reproduce the following material from our earlier decision in which we described the expert opinion of Ms Muller, which is relevant to our determination whether the respondent is guilty of professional misconduct; 32 A substantial issue in these proceedings revolves around the continuing contact between the respondent and patient A following the cessation of his treatment of her and whether this constituted misconduct. Ms Muller explained the basis for her opinion that the respondent had misconducted himself in the following way; (1) by its nature borderline personality disorder is an enduring and long-standing condition. (2) so long as that condition remains, the consequences and impact of treatment and care afforded by a health practitioner such as a nurse member of a treating team will persist (3) one of those consequences is the power imbalance which is inherent in any relationship between a patient and a treating health practitioner (4) it follows that the power imbalance in the relationship will persist notwithstanding that a particular health practitioner may no longer be involved in the care and treatment of the patient. (5) because of these matters it is inappropriate for a health practitioner including a mental health care nurse to continue to have a relationship outside of the treating relationship with the patient, whether or not the treating relationship still persists in cases where the patient is suffering from borderline personality disorder. Such a patient will remain vulnerable to a manifestation of symptoms of borderline personality disorder including suicide ideation and thoughts of self-harm and the like, and such vulnerability may be exacerbated by the conduct of the health practitioner outside the treatment relationship 33 It was the opinion of Ms Muller that by reason of his undergraduate training, and the fact that he had had some experience in working in mental health care that the respondent should have been aware of these matters. As such she was critical of the respondent's conduct in making contact with patient A after she had ceased to be in his care at the Lakeside clinic. 34 Even allowing for the professed naïveté of the respondent in not appreciating the inappropriateness of his relationship and interaction with patient A after he ceased being involved in her treatment, Ms Muller was particularly critical of the respondent in continuing to maintain contact with patient A after firstly he was made aware that nurses at Lakeside clinic were concerned when he attended upon her there after he had ceased treating her, and after he had clearly been told by Dr Hinton that he should cease all contact with her. 35 Her criticism also extended to the substance of his communications with her including the intensity and frequency of his text and telephone communications, his discussions with her concerning her health and personal circumstances, concerning her thoughts of self-harm and suicidal ideation, his suggestion that there was nothing wrong with their continued communications and they could be kept secret, informing her that he "loved her" and his reference to respecting her right to choose to suicide if she wished that she should delete his text messages before doing so. She thought that his communications might exacerbate her condition. Furthermore, Ms Muller was critical of the respondent in failing to respond appropriately by seeking external assistance for her when she expressed suicidal ideation in circumstances where she was at high risk of suicide or deliberate self-harm. 1. Even though the conduct of the respondent was confined to his relationship with only one patient, that conduct nevertheless continued for some time, and occurred in circumstances where the respondent, whether through ignorance or naïveté, behaved in a manner which was contraindicated by reason of the patient's condition, and had the potential to cause her harm. The respondent had been involved in the treatment of Patient A and must have been aware of her mental health condition. Furthermore, the respondent did not appreciate that he should have sought external assistance for this person, rather than attempting to continue his relationship with her whilst she was being treated professionally by others. 2. In submissions the applicant rejected any suggestion that the characterisation of the respondent's conduct should be affected by his professed lack of knowledge and naïveté. At the time that this conduct occurred the respondent had had more than 6 years' experience as a nurse and more than 5 years' experience working in the mental health area. 3. The respondent submitted that we should not treat a "boundary violation" of a non-sexual nature with an ex-patient as a most serious category of breach and that we would not find "without something more" that it is conduct that constitutes professional misconduct. In so submitting the respondent relied substantially on one decision of this Tribunal dealing with a health practitioner in which a finding of unsatisfactory professional conduct had been made and the Tribunal had declined to make a finding of professional misconduct. In Health Care Complaints Commission v Dr McCroary [2019] NSWCATOD 115 this Tribunal considered a complaint brought against a general practitioner who had commenced a social relationship which became a sexual relationship with a patient who was also an employed nurse in his practice and continued to provide medical treatment to her on approximately 100 occasions whilst the relationship continued for a period of approximately 29 months. His conduct was clearly in breach of a code of conduct established for medical practitioners, although the practitioner professed to have misread it. The practitioner submitted that this patient was not particularly vulnerable and that there was no significant power imbalance between them which had the effect of lessening the seriousness of his conduct. 4. In determining that the practitioner's conduct did not constitute professional misconduct, the Tribunal characterised that conduct for the purpose of section 139E(b) of the National Law. It characterised the long-standing relationship as not amounting to more than one instance of unsatisfactory professional conduct. It was held that "The continuation of the conduct is not a separate "instance" of unsatisfactory professional conduct." [at 51]. Whilst each case must be considered having regard to its own facts, and especially the nature and extent of the relevant complaints and particulars thereof, we would respectfully decline to apply the approach adopted in McCroary. In our opinion the relationship which the respondent in these proceedings had with Patient A constitutes unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, not by reference to any consideration of the number of "instances" but by reference to the fact of that relationship. 5. The respondent in submissions relied heavily on the outcome in McCroary. It was said that the misconduct in those proceedings was far more serious than the misconduct of the respondent in these proceedings and that we should thereby characterise the respondent's misconduct as unsatisfactory professional conduct not amounting to professional misconduct. If the Tribunal in McCroary may be taken to have found that entering into a sexual relationship with a patient for whom he was continuing to provide treatment over a substantial period of time does not constitute professional misconduct, such a result is at odds with many other decisions of this Tribunal and the approach adopted by the NSW Court of Appeal. For example in Health Care Complaints Commission v Cheng (No 2) [2017] NSWCATOD 93 the Tribunal said; 22 We have already concluded that the misconduct of which we have found the respondent guilty carries with it sexual connotations of a most serious kind. The background against which the conduct of the respondent is to be considered is succinctly and appropriately summarised by the following extract from the judgement of the New South Wales Court of Appeal (HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638): Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest." 1. We reject the approach taken on behalf of the respondent. The circumstances which apply to his misconduct must be considered by way of a process of evaluation and value judgement having regard to the legislative provisions and the evidence pertaining to these proceedings. It is wrong to describe the conduct of the respondent by comparison with the "worst possible case". 2. We accept the expert opinion of Ms Muller. On the basis of that opinion we conclude that the knowledge, skill or judgment possessed, or care exercised, by the respondent in the practice of his profession was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It constitutes professional misconduct. Protective orders 1. It is now necessary to determine what protective orders should appropriately be made consequent upon our finding that the respondent is guilty of professional misconduct. The range of orders is set out in sections 149A and 149C of the National Law in the following terms; 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner— (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. (2) The Tribunal may do any one or more of the following in relation to the student— (a) caution or reprimand the student; (b) impose the conditions it considers appropriate on the student's registration; (c) order the student to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the student to complete an educational course specified by the Tribunal. (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only— (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a critical compliance order or condition. 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. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied— (a) the student 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 student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (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. It is well-established that the orders which this Tribunal is empowered to make consequent upon a finding of professional misconduct are protective in nature, and consistent with the provisions of the National Law which are directed to the protection of the public from the misconduct of health practitioners. There are four elements to the consideration of what are appropriate protective orders. The first is the protection of the public from the conduct of the practitioner. The second is the deterrent effect which a protective order will have on the future conduct of a practitioner. The third is the deterrent effect which such an order will have on the conduct of other practitioners, so as to dissuade them from engaging in the same or similar misconduct. The fourth element is the enhancement of the integrity of the practitioner's profession and the confidence that the public may have in the practise of that profession. 2. The applicant submitted that an appropriate protective order was the cancellation of the respondent's registration. The basis for such a submission was the seriousness of the misconduct. 3. We agree that the misconduct of the respondent was serious, and certainly sufficiently serious to characterise it as professional misconduct. However, although in many cases such a finding leads to cancellation or suspension of registration, this must be justified by applying the relevant legislative provisions in accordance with well-established authority. Furthermore, each case must be considered on its own facts. 4. We are satisfied on the basis of the evidence of Dr Corrigan, which we accept, that it is most unlikely that the respondent will misconduct himself in the same manner in the future. We accept that he is now fully conscious of matters relating to transference and countertransference and their impact on the relationship of patient and mental health nurse. We further accept that the respondent has available to him knowledge and techniques to prevent him from engaging in conduct of this kind in the future. We repeat that the respondent has completed a Masters of Mental Health Nursing Degree and has also worked as a nursing facilitator with undergraduate nursing students through the University of Newcastle since 2015. We regard these activities as enhancing the respondent's education in terms which will increase his awareness of the need to avoid boundary relationship violations with patients. 5. The respondent has been precluded from practising as a mental health nurse for many months by reason of the interlocutory order which we have previously made. In addition, the respondent has had conditions which precluded him from practising as a nurse imposed by NSW Health Service removed. 6. In all the circumstances we conclude that there is no good reason why a protective order should be made either cancelling or suspending the registration of the respondent as a nurse, notwithstanding the serious nature of his misconduct. We do not apprehend that the safety of the public will be adversely impacted by his continued practice in the profession. 7. We do, however, conclude that it is appropriate that the respondent be reprimanded for his misconduct. In addition, as was agreed on his behalf, it is appropriate to impose two conditions on his registration. The first is that the respondent must maintain a therapeutic relationship with a psychiatrist or a psychologist at a frequency to be determined by that practitioner for a period of at least 12 months. The second condition is that the respondent undertake mentoring for a period of 12 months. Costs 1. This is a costs jurisdiction. The applicant sought a costs order which was not opposed by the respondent. There is no reason why such an order should not be made, and we shall make an order accordingly Codes of conduct 1. In our earlier decision we had occasion to refer to a number of codes of conduct the provisions of which were made available for the purpose of the earlier hearing. Their provisions are referred to at [61] and following. 2. As is obvious, there are features of the practice of a mental health nurse which do not apply to the same extent to nurses in other areas. Considerations of transference and countertransference are obvious, for reasons which we have referred to in the earlier decision. A mental health nurse becomes aware of the intimate rawness of the emotional pain suffered by a patient. Even if the patient comes to accept over time what has happened with appropriate therapeutic intervention, there remains a level of vulnerability where others know his or her story. That vulnerability may be exposed if a mental health nurse crosses the appropriate professional boundary. We observed in the earlier decision that in our opinion the provisions of these Codes are deficient. Arguably, those deficiencies should be rectified urgently to assist the important work of mental health nurses, and to facilitate awareness of these and other matters. We ask the parties to bring these observations to the attention of the Nursing and Midwifery Council of NSW. Orders 1. Consequent upon the finding of professional misconduct which we have made we make the following orders; 1. The respondent is reprimanded. 2. The following conditions are imposed on the registration of the respondent; 1. The respondent is to attend for ongoing treatment by a psychologist or psychiatrist for a period of at least 12 months. The frequency of that treatment is to be determined by the practitioner. 2. The respondent is to authorise the treating practitioner to inform the Nursing and Midwifery Council of NSW of any failure to attend for treatment, the termination of treatment or any significant change in his health status (including a significant temporary change in that status). 3. The respondent is subject to mentoring in accordance with the Nursing and Midwifery Council of NSW Mentor Guidelines for a period of 12 months 1. The respondent is to pay the applicant's costs assessed in default of agreement. ********** 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: 19 December 2019