Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hardaker [2020] NSWCATOD 35 Hearing dates: 11 March 2020 Date of orders: 01 April 2020 Decision date: 01 April 2020 Jurisdiction: Occupational Division Before: J Millbank, Senior Member Associate Prof L MacKenzie, Senior Member D Wilson, Senior Member Dr J Griffin, Senior Member Decision: (1) Pursuant to findings of unsatisfactory professional conduct and professional misconduct, under s 149C(4)(a) of the National Law if the practitioner was still registered as an occupational therapist the Tribunal would have cancelled her registration; (2) Pursuant to s 149C(4)(b) of the National Law the practitioner is disqualified from being registered as an occupational therapist for a period of 4 years from the date of this decision; (3) Pursuant to s 149C(4)(c) of the National Law, the Tribunal requires the Occupational Therapy Board to record the fact that had she been registered the Tribunal would have cancelled Ms Hardaker's registration for a period of 4 years from the date of this decision; (4) The Respondent to pay the Applicant's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW); (5) A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the name of Patient A listed in the schedule to the complaint and the names of the three mandatory notifiers identified in the evidence. Catchwords: TRADES AND PROFESSIONS – occupational therapy – mental health in-patient – personal and sexual relationship with patient – continuing denial of relationship to employer – misleading evidence to Council – misleading application to Council – misleading evidence to HCCC – non-appearance of practitioner Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Care Complaints Act 1993 (NSW) Cases Cited: Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Hanna v Medical Council of NSW [2017] NSWCATOD 27 Health Care Complaints Commission v Hudson [2019] NSWCATOD 38 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Laura Hardaker (Respondent) Representation: Counsel: Nil Solicitors: Health Care Complaints Commission (Applicant) No appearance (Respondent) File Number(s): 2019/00329315 Publication restriction: A non-publication order under s 64(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the name of Patient A listed in the schedule to the complaint and the names of the three mandatory notifiers identified in the evidence. REASONS FOR DECISION Background 1. This matter concerns Ms Hardaker's actions in having an improper personal and sexual relationship with a male mental health patient between June and December 2017. 2. Ms Hardaker obtained a bachelor's degree in occupational therapy in 2006 and a doctorate in 2012. She was first registered as an occupational therapist in 2012, having worked in the field since 2006. 3. From 2006 to August 2018, the practitioner worked as an occupational therapist at a hospital which had a specialist program for trauma recovery (the hospital). Ms Hardaker held a position of seniority in the hospital at the time of the relevant events. For three periods, including September 2016 to November 2017 she was Acting Deputy Director of Allied Health. 4. Between November 2016 and December 2017, Patient A was a patient of the hospital for several periods. Patient A was undergoing treatment, both as an in-patient on three occasions and as an outpatient, in a trauma recovery program for PTSD associated with his previous occupation. On multiple occasions, Patient A was under the direct care of Ms Hardaker, in both group and individual therapeutic sessions. 5. From June 2017 onwards Ms Hardaker had a series of discussions about Patient A with a more junior colleague, in which she stated that Patient A had disclosed romantic feelings for her and later that she had told him she returned those feelings. The colleague provided advice about steps to take to ensure that professional boundaries were maintained, but over time became increasingly concerned that this advice was not heeded. The colleague ultimately brought this issue to the attention of more senior staff at the hospital in December 2017. 6. The practitioner continued to treat Patient A until directed by her employer not to do so in December 2017. 7. The hospital commenced an investigation into the personal relationship in late December 2017. On 30 December 2017 the practitioner responded in writing denying that there was any inappropriate personal relationship with the patient and denying that she had any contact with him since his last discharge in early December 2017. 8. In February 2018 three different staff members from the hospital filed mandatory notifications based on their belief that that practitioner had engaged in sexual misconduct. 9. In February 2018 the hospital commenced an investigation into the sexual relationship. On 13 February 2018 the practitioner responded in writing denying that there was any romantic or sexual relationship with the patient and again denying that she had any contact with him since his discharge in early December 2017. 10. The patient was again hospitalised in February 2018. 11. In March 2018 the Occupational Therapy Council of NSW (the Council) held s 150 proceedings. In her written response to that inquiry the practitioner denied the sexual relationship and stated that 'at no stage were boundaries breached.' She also denied having any further contact with the patient since his discharge in December 2017. 12. In that letter the practitioner questioned the 'motivations' and bona fides of the notifiers, and of another patient who had reported a conversation with Patient A about the relationship. 13. The Council found that there was 'insufficient evidence before the Council as to whether or not Dr Hardaker had engaged in a sexual relationship with the patient and Dr Hardaker denied having done so.' It therefore proceeded to focus only on the personal relationship. 14. We pause to note that, while the task of a section 150 inquiry is not to make conclusive findings (Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115; Hanna v Medical Council of NSW [2017] NSWCATOD 27), nor is it to proceed on the basis of the practitioner's word. 15. On the basis of the practitioner's own account (that she had not acted to seek supervision or transfer care after the patient had declared romantic feelings for her that she had not reciprocated) and findings that she had shown little insight and had tended to minimise the impact of her actions upon the patient, the Council determined that vulnerable mental health patients could be at risk in her care. Accordingly, the Council suspended the registration of the practitioner. 16. Just over a month after the Council decision was published, the practitioner wrote to request a review of the decision. In that letter she expressed regret at not having seen that boundaries were becoming 'blurred' earlier, accepted that she should have transferred care of the patient, stated that she had engaged an external supervisor and that she was confident that a similar situation would not occur again. 17. Seven weeks after the suspension decision was published the Council held s 150A proceedings to review the decision based upon a change of the practitioner's circumstances. 18. The Council accepted that the practitioner's circumstances, in this short period of time, had changed such that lifting the suspension and imposing supervision conditions instead was appropriate, finding: In Dr Hardaker's presentation at the s 150A proceedings she impressed as having now reflected on her prior conduct and the seriousness of such conduct and the steps that she would need to take in the future were she to be placed in a similar situation. Dr Hardaker impressed as having learnt considerably through what has been a difficult process for her and appeared to have made considerable gains through her mentoring [with an OT colleague] and more recent consultations with [a psychologist]. 1. The above finding was only possible because the Council had effectively dismissed from consideration the three mandatory notifications concerning sexual misconduct. 2. In August 2018, the hospital instigated further proceedings based upon concern that the practitioner had engaged in further contact with the patient, and the practitioner subsequently resigned from her employment. 3. Since September 2018, the practitioner has worked in a managerial role in the health sector. 4. In a letter of 31 August 2018 to the Health Care Complaints Commission (HCCC), through her lawyers, the practitioner again denied the sexual relationship, denied having any 'non therapeutic interactions' with the patient and stated that she had not had contact with him since his discharge in December 2017. 5. Following further correspondence from the HCCC in September 2018, which detailed the frequency and timing of an extensive volume of telephone and text messages between the practitioner and the patient, the practitioner through her lawyers acknowledged a 'personal relationship' commenced in July 2017. 6. The practitioner relinquished her registration in October 2018. 7. On 14 November 2018, through her lawyers, the practitioner acknowledged that she had a sexual relationship with Patient A from around August or September 2017 and had on-going social contact with him until January 2018. The Complaints and Issues 1. Complaint 1 of unsatisfactory professional conduct alleges both conduct below the standard reasonably expected and improper or unethical conduct comprising ten particulars. These particulars address the practitioner's conduct in commencing a personal relationship, and later a sexual relationship, with Patient A while she was in a therapeutic relationship with him, failing to appropriately terminate the therapeutic relationship and refer Patient A onto other care, failure to notify her employer of the relationship, lending Patient A a small sum of money, and engaging in extensive telephone and SMS contact with the patient during a period in which she was also treating him. 2. Complaint 2 of unsatisfactory professional conduct is that the practitioner engaged in conduct below the required standard in that she failed to keep records of her contact with the Patient in her clinical records and also did not disclose the relationship in those records. 3. Complaint 3 of unsatisfactory professional conduct is that the practitioner acted improperly or unethically in misleading her employer, the Council and the HCCC on various occasions when she denied the existence of the sexual relationship. 4. Complaint 4 is that the complaints both individually and cumulatively amount to professional misconduct. 5. In her s 40 response to the HCCC, dated 9 May 2019 the practitioner stated that she had voluntarily surrendered her registration and undertook not to reapply for registration for 'at least 2 years.' In an undated letter received by the Tribunal on 21 February 2020 the respondent admitted all of the facts laid out in the particulars to the complaints and indicated that she did not intend to attend the hearing. In a letter dated 17 February 2020 the respondent indicated that she did not contest the cancellation orders sought by the HCCC, but she did contest costs. 6. The issues are therefore appropriate orders protective orders and the question of costs. Hearing and Evidence 1. The HCCC evidence included a peer expert report by Ms Sarah Fogarty, copies of the practitioner's correspondence with her employer concerning three disciplinary inquiries held by them, and transcripts of Council proceedings and decisions. Apart from the brief letters noted above, the practitioner did not file any material. 2. Ms Fogarty was strongly critical of the practitioner's conduct in engaging in a personal and then sexual relationship with a psychologically vulnerable patient under her care. 3. Ms Fogarty opines that the act of lending Patient A money, if taken in isolation would have been below the standard expected but not significantly below. However, in context Ms Hardaker's action 'takes in a far greater significance' in conveying a message to Patient A that the relationship was developing into a personal one. She was therefore strongly critical. 4. Ms Fogarty was particularly critical of the fact that in the June/July 2017 period, when Ms Hardaker was aware of the patient's feelings towards her and then that she reciprocated them, 'no appropriate measures were put in place to address the issue.' Ms Fogarty notes that such measures should include: – as applicable during interaction with the patient, the therapist making clear and consistent statements in a neutral and professional manner to reinstate the professional boundary and to re-direct any attempt by the patient to shift the interaction to a more personal level; - the therapist demonstrating an increased level of vigilance regarding the therapist's own actions towards the patient, and the potential meaning the patient may attach to the therapist's actions (eg after-hours phone contact, eg gestures of physical contact with the patient); - the therapist notifying her manager and/or the senior practitioner on the patients treating team of the potential boundary issues, and seeking (and following) their guidance as to the recommended course of action, taking into consideration the patient's clinical status. 1. Ms Fogarty notes that disclosure to senior staff is a particularly important step as it facilitates 'shared and sound decision-making' regarding necessary measures to be put in place, ensures that others on the treating team are aware of factors that may impact upon the client's current status and enables the therapist to be supported as they 'navigate this difficult territory and as they implement the necessary measures'. 2. The practitioner did not take these steps, instead selectively disclosing to a more junior staff member with whom she was in a friendship, and whose advice she then ignored. Later she sought to discredit that colleague's account of events. 3. The peer expert's opinion was that the practitioner's failure to notify others, seek supervision and transfer care was directly harmful to the patient because it impeded the clinical care he subsequently received at the hospital. Dr Hardaker's active concealment of this boundary violation resulted in [Patient A's] treating team being unaware of a major change in his personal life and, as such, of any potential stressors and increased vulnerability he may have been experiencing at that time. 1. In Ms Fogarty's opinion, the practitioner continuing as a member of Patient A's treating team while in a sexual relationship with him: was extremely inappropriate, shows an abandonment of her duty of care towards her patient and a complete disregard for the Occupational Therapy profession's code of conduct. 1. In her s 40 response the practitioner stated that she had 'taken on board' the peer expert criticism and accepted that her conduct had fallen significantly below the required professional standard. Ms Hardaker explained her late admission as a result of being 'paralysed with extreme distress'. She stated that: Whilst I never wanted to avoid the consequences of my actions professionally, I was hopeful to protect my family (as a mother I desp[e]rately wanted to protect my children) and the wellbeing of the patient. 1. The practitioner characterises this as 'an omission of the truth' followed by her giving 'full cooperation to the Commission by fully admitting the facts' as soon as she was able to. 2. In the s 40 response, the practitioner states that she has taken 'full responsibility' for her actions by surrendering her registration. Consideration and Findings 1. The Tribunal is independently satisfied that all the complaints are established and that they are both individually and cumulatively of such seriousness as to amount to professional misconduct. 2. Patient A was in a position of vulnerability. Ms Hardaker's conduct in commencing, continuing and concealing a sexual relationship with Patient A over several months, while he remained under her therapeutic care, was reprehensible. 3. In Health Care Complaints Commission v Hudson [2019] NSWCATOD 38 [62]-[64], concerning a nurse who had a sexual relationship with a former mental health patient this Tribunal stated: While every case must be judged on its own facts, it would be a rare instance where this Tribunal found that a sexual relationship between a mental health practitioner and a current or former mental health patient did not amount to misconduct, by reason of the extreme power imbalance in such a relationship and the inherent vulnerability of such patients. [Citations omitted]. It bears repeating that the vulnerability of a mental health patient, and in particular someone who has been so acutely unwell as to be an inpatient of a mental health service, does not instantly disappear upon discharge, but may persist for months or even years depending upon the severity of their health condition and their life circumstances. Even if a former mental health patient subsequently presents as well, or is perceived by themselves or others to be fully recovered, all of the health practitioners who treated that patient maintain a very substantial power imbalance in their interaction with the patient. This is by virtue of the treating relationship, including but not limited to the practitioner's experience of that person when they were acutely unwell, and their access to that person's therapeutic disclosures and clinical records. 1. The position of the practitioner here, providing both group and individual therapy to the patient on an in-patient and outpatient basis was closely akin to a psychologist. Indeed, somewhat concerningly, some of the hospital records describe her as such. Ms Hardaker was clearly in a position of trust in which she was fully apprised of the patient's complex circumstances and particular vulnerabilities. Her sexual relationship with the patient, while romanticised by her at the time, was an abuse of that trust and of her professional position of power. 2. We accept all of the peer expert's criticisms, which reflect our own view of the seriousness of the misconduct and its very substantial departure from the required standard of an occupational therapist of the experience and seniority of Ms Hardaker. We also find that the improper and unethical nature of the sexual relationship and the sustained deception to regulators to be antithetical to professional standards of care and of candour. 3. It is of grave concern to the Tribunal that in her s 40 response the practitioner continued to characterise her misconduct in minimising terms and passive language, as something which had happened to her (i.e. initiated by the patient), and which she had not been able to prevent through not recognising it in time. 4. For example the practitioner stated in that response: It has been devast[at]ing for me to face the fact that due to my inability to readily and appropriately recognise boundary breaches, I should leave an occupation that I loved. 1. And 'I failed to recognise the signs that allowed me to breach the code of conduct and I am deeply remorseful.' 2. We reject this characterisation of what occurred. The practitioner was well aware of the boundary issues and warning signs, the patient made an overt declaration of his feelings around June 2017, and she was sufficiently aware of the problem that this posed to disclose it to a colleague. The practitioner however did not reinforce professional boundaries, seek supervision or transfer care. She relayed personal feelings to the patient, continued to treat him, and put in place a prolonged course of denial and deception. This was not merely a 'lack of action'. 3. We are particularly critical of the practitioner's statement in her s 40 response that her continued denial of her misconduct was based in part on a desire to 'protect' the 'wellbeing of the patient.' Nothing could be further from the truth. The health and welfare of the patient were seriously imperilled by this sustained course of conduct. 4. The fact that the practitioner continued to maintain contact with the patient (and deny doing so) while her conduct was under investigation must be regarded as rendering the misconduct more serious, and as casting further doubt upon her integrity and future trustworthiness. 5. The practitioner engaged in sustained dishonesty and a serious abuse of her position of seniority in the organisation in that she sought to cast discredit upon the motives of colleagues who had discharged their professional duty by making a mandatory report concerning her misconduct. She further engaged in an abuse of her professional position and duties through her dishonesty with the Council in the original s 150 proceedings. This abuse was not just repeated but extended when the practitioner brought a review application seeking to overturn the Council order. 6. In the above light the practitioner's s 40 statement that she 'never wanted to avoid the consequences of my actions professionally' rings thoroughly hollow. We find that Ms Hardaker very much wished to avoid any professional consequence of her misconduct; there is no other way to interpret her flagrant disregard of her professional obligations when she sought to set aside the Council suspension order mere weeks after it had been imposed. 7. We reject the practitioner's claim that she provided her 'full cooperation' to the HCCC 'as soon as she was able to.' To the contrary, after almost a year of vehement and indignant denials, only after she was confronted with incontrovertible objective evidence contradicting her account did Ms Hardaker acknowledge the sexual relationship. This evidence, which was not available to the employer or the Council in their previous inquiries, was of extensive phone contact over several months. This included for example over 800 texts between Ms Hardaker and Patient A during a 12 day period in July 2017 and evidence of contact after the December 2017 inquiry had commenced and after Patient A had been discharged. 8. We note that Ms Hardaker's acknowledgement of the sexual relationship only came after she had secured alternate employment and after she had relinquished her registration. 9. We reject the practitioner's assertion that her relinquishment of her registration demonstrated that she had taken 'full responsibility' for her conduct. Our view of the above sequence of the events leads us to conclude quite the reverse. 10. The practitioner did not attend the hearing to provide any opportunity to the Tribunal to assess her understanding of her misconduct or her current attitude to her professional and ethical duties. We therefore have no basis upon which to assess her insight or her likely prospects for remediation in the future. 11. On the basis of the above findings we find that the practitioner has demonstrated such very serious and sustained failures in her professional standards that we have no confidence they would not be repeated in the future. 12. We accept the HCCC submission that the combination of the seriousness of the sexual misconduct and the dishonesty with regulators, should lead to the conclusion that this misconduct falls at the more serious end of the scale, albeit that it occurred with a single patient. 13. An order that cancellation would have occurred if the practitioner were still registered, and a substantial non-review period of four years, is required both because we find that the practitioner poses an on-going risk to the health and safety of the public and to signal to the profession and the public the seriousness with which this conduct is judged. Costs 1. Ordinarily costs in this jurisdiction follow the event unless there are reasons to conclude otherwise: Qasim v Health Care Complaints Commission [2015] NSWCA 282 [85]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 [42]-[44]. 2. While the practitioner did concede the complaint, the hearing was nonetheless required to assess the seriousness of the conduct and to fully consider the appropriate protective orders. 3. The HCCC was successful in its case and conducted the hearing properly and efficiently in the public interest. It is entitled to its costs. Orders 1. Pursuant to findings of unsatisfactory professional conduct and professional misconduct, under s149C(4)(a) of the National Law if the practitioner was still registered as an occupational therapist the Tribunal would have cancelled her registration; 2. Pursuant to s149C(4)(b) of the National Law the practitioner is disqualified from being registered as an occupational therapist for a period of 4 years from the date of this decision; 3. Pursuant to s149C(4)(c) of the National Law, the Tribunal requires the Occupational Therapy Board to record the fact that had she been registered the Tribunal would have cancelled Ms Hardaker's registration for a period of 4 years from the date of this decision; 4. The Respondent to pay the Applicant's costs of these proceedings as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW); 5. A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the name of Patient A listed in the schedule to the complaint and the names of the three mandatory notifiers identified in the evidence. ********** 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: 01 April 2020