Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Blair [2020] NSWCATOD 54 Hearing dates: 27 February 2020; submissions closed 13 March 2020 Date of orders: 14 May 2020 Decision date: 14 May 2020 Jurisdiction: Occupational Division Before: L Pearson, Principal Member D Beaumont, Senior Member L Gregory, Senior Member G Alder, General Member Decision: (1) Pursuant to a finding of professional misconduct, the Respondent's registration as a nurse is cancelled from the date of this decision under s 149C(1)(b) of the Health Practitioner Regulation National Law; (2) Pursuant to s 149C(7) of the Health Practitioner Regulation National Law, the Respondent is not to make any application for review of the cancellation of his registration for a period of two years from the date of this decision; (3) Pursuant to s 149C(5) of the Health Practitioner Regulation National Law, the Respondent is prohibited from providing any health services as defined in s 5 of the Health Practitioner Regulation National Law unless and until such time as he is registered as a Registered Nurse; (4) The Respondent is to pay the costs of the Health Care Complaints Commission, as agreed or assessed. Catchwords: TRADES AND PROFESSIONS – health practitioner – nurse – relationship with patient – whether conduct in practice of profession – whether unsatisfactory professional conduct – whether professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Attia v Health Care Complaints Commission [2017] NSWSC 1066 Chen v Health Care Complaints Commission [2017] NSWCA 186 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Choi [2017] NSWCATOD 82 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Gordon William Blair (Respondent) Representation: Health Care Complaints Commission (Applicant) Respondent (Self Represented) File Number(s): 2019/00280936 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 publication of the name of the patient set out in the Schedule to the Complaint is prohibited. REASONS FOR DECISION 1. On 9 September 2019 the Health Care Complaints Commission (the HCCC) applied to the Tribunal for orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Gordon William Blair, a registered nurse. 2. The HCCC brings two complaints: that Mr Blair is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in relation to his conduct while working as a registered nurse at Cumberland Hospital; and that he is guilty of professional misconduct under s 139E of the National Law in relation to that conduct. 3. The HCCC seeks the following orders: 1. An order under s 149C(1)(b) of the National Law cancelling the practitioner's registration; 2. An order under s 149C(7) of the National Law that an application for review of the order under Division 8 may not be made until after 2 years; 3. A prohibition order under section 149C(5) of the National Law; and 4. An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs. Background 1. Mr Blair completed a Bachelor of Nursing in 1992 and was first registered as a nurse on 18 September 1992. In 2013 he completed a Master of Nursing (Mental Health). Mr Blair started work as a Registered Nurse at Cumberland Hospital (the Hospital) in September 2015, and worked there full time from March 2017. 2. Patient A, who has a history of mental health issues including bipolar affective disorder and schizoaffective disorder, was involuntarily admitted to the Hospital on 18 March 2018 and resided at Yaralla Unit, a high dependency mental health unit in the Hospital. 3. The practitioner was working as a nurse at Yaralla Unit while Patient A was residing there. He was redeployed away from the Yaralla Unit on 28 March 2018 and returned to work there on 3 April 2018. 4. On 6 April 2018 Patient A was transferred to Paringa Unit, an inpatient mental health unit with 33 beds. 5. The particulars of Complaint One relate to the practitioner's conduct on 25 March 2018, while he was working at Yaralla Unit and Patient A was residing there (particular 1); events on 6, 7, 8 and 9 April 2018, when the practitioner was working at Yaralla Unit and Patient A was residing in Paringa Unit (particulars 2-11); and communication by the practitioner with relatives of Patient A on Facebook between 12 and 14 April 2018 (particular 13). 6. On 10 April 2018 the Nursing and Midwifery Council (the Council) received a complaint from the Hospital reporting that allegations had been made by Patient A, who alleged that the practitioner had formed an improper relationship with her, had taken her on day leave outside the Hospital and sexually assaulted her, and had accessed her medical records and disclosed the contents to her. The Council was advised that NSW Police had taken no further action in relation to the matter as the complainant had declined to provide a formal statement. 7. On 23 April 2018 the Council determined under s 150 of the National Law to suspend the practitioner's registration. 8. The practitioner's employment was suspended on 10 April 2018, and terminated on 15 June 2018. 9. On 10 September 2018 on the application of NSW Police an AVO was made prohibiting the practitioner from contacting Patient A for a period of two years. Tribunal proceedings 1. The practitioner was legally represented at the directions hearing on 11 October 2019 when directions were made for the parties to file and serve evidence and submissions and the proceeding was listed for hearing on 27 and 28 February 2020. 2. On 2 January 2020 the practitioner's legal representative filed a Notice of ceasing to act. In a letter to the HCCC of the same date, the former representative stated that she was instructed that the practitioner would not be attending to give evidence at the hearing and would no longer be participating in the proceeding. That letter, and an email from the practitioner on 25 February 2020 to the HCCC in which he confirmed he would not be attending, were tendered by the HCCC at the hearing on 27 February 2020 (ex A3, A5). 3. The practitioner did not appear at the hearing on 27 February 2020. The Tribunal was satisfied, on the basis of the correspondence between the HCCC and the practitioner's former legal representative (ex A5), and email correspondence between the HCCC and the practitioner (ex A3) that the practitioner had been served with the HCCC's documents, including its Stage 1 submissions and Stage 2 submissions. The Stage 1 and Stage 2 submissions were sent direct to the practitioner on 25 February 2020, and he confirmed receipt in an email on 26 February 2020 (ex A3). The practitioner had in previous correspondence with the HCCC agreed that both Stages 1 and 2 issues should be considered together (ex A4). 4. The Tribunal was satisfied that the practitioner had been served with the relevant documents on which the HCCC intended to rely, had formally responded to the complaint in writing at a time when he was legally represented, and had stated that he did not intend to participate in the hearing. On that basis the Tribunal was satisfied it was appropriate to proceed in the absence of the practitioner, and to consider both Stages 1 and 2. 5. The Application filed on 9 September 2019 specified as the orders sought: … Protective orders under section 149A (caution, reprimand, counsel etc) section 149B (fine) and/or section 149C (suspension, cancellation or prohibition order) of the National Law; and An order that the Respondent pay the Commissioner's costs under clause 13 of Schedule 5D of the National Law. 1. The Stage 2 submissions specify the particular protective orders sought. While the practitioner had confirmed receipt of that document and provided a response in his email of 26 February 2020, the Tribunal was concerned that he may not have had a reasonable opportunity to understand and respond to the specific protective orders sought, in particular to the proposed prohibition order. At the conclusion of the hearing the Tribunal directed that the practitioner provide to the Tribunal and the HCCC any submissions in response to the Stage 1 and Stage 2 submissions, his submissions to address the proposed protective orders and in particular the proposed prohibition order under s 149C(5) of the National Law; and with an opportunity for the HCCC to reply. 2. The Tribunal received from the practitioner on 10 March 2020 a 15 page submission. The HCCC subsequently advised that it relied on its written submissions and did not propose to make further submissions in reply. The Complaints and the Practitioner's Reply 1. Complaint One alleges that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law, which provide: 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. … (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 particulars to Complaint One as stated in the Complaint, and the practitioner's response in his Statement dated 19 December 2019 (filed 30 January 2020), are: 1. that the practitioner failed to observe proper professional boundaries with Patient A in the following circumstances: 1. On 25 March 2018 at Yaralla Unit the practitioner failed to immediately remove himself from close proximity to Patient A when she jumped on to his lap while they were sitting on a lounge, and that he put his hands around her waist and near her buttocks to move her away, that she put her arm around his neck, and she put her leg over his leg (particular 1): The practitioner admits that Patient A jumped on his lap and that she put her leg over his leg, denies the allegation that Patient A put her arm around his neck, and states that in order to remove Patient A from his lap he pushed her from the left side by the top of her thigh/buttock region, and he cannot either admit or deny that he placed his hands around her waist. 1. On 7 April 2018 the practitioner visited Patient A at Paringa Unit and gave her some food, drinks and toiletries he had purchased for her, and she hugged him and asked him to purchase her some cigarettes, and he failed to discourage her behaviour (particular 3): The practitioner admits this particular, other than the allegation that the Patient A hugged him on 7 April 2018. 1. On the morning of 8 April 2018 the practitioner telephoned the Paringa Unit asking to speak to Patient A and did not provide his name; he asked her to get permission to leave Paringa Unit and offered to drive her to the shops to purchase food; she told him she had been refused permission to leave the unit and asked if he had purchased cigarettes, and suggested meeting in the hospital grounds; and he asked her to meet him at the Hospital boom gate (particular 4): The practitioner admits particular 4. 1. Between 2pm and 6.50pm on 8 April 2018: 1. The practitioner met Patient A at the Hospital boom gate; he was aware she had been refused permission to leave Paringa Unit; she got into his car, and he offered her cigarettes and drove her to places including Parramatta Park, Mrs Macquarie's Chair and South Hurstville IGA (particular 5): The practitioner admits particular 5 but denies that he was aware that Patient A had been refused permission to leave Paringa Unit, stating that she later informed him she did not have permission for additional leave. He states that in hindsight he realises he should have returned her to the hospital immediately and he regrets not doing that. 1. The practitioner suggested Patient A spend a weekend with him at a luxury hotel, suggested she move in with him, and offered to pay for her travel to London to visit her father (particular 6): The practitioner admits particular 6. 1. The practitioner had a conversation with Patient A about whether he had had sexual intercourse in his car, and had a conversation with her during which he agreed to undertake testing for sexually transmitted infections the following day (particular 7): The practitioner denies initiating a conversation with Patient A about whether he had had sexual intercourse in the car, stating that Patient A asked if he had "christened" the car and he said "No"; and he admits that part of particular 7 concerning testing for sexually transmitted infections. 1. The practitioner kissed Patient A, hugged her, held hands with her, placed his arm around her waist and placed his hands underneath her clothes (particular 8): The practitioner admits particular 8, other than the allegation that he placed his hands underneath Patient A's clothes which he denies. 1. at about 6pm on 8 April 2018, the practitioner purchased personal items for Patient A at South Hurstville IGA including socks, underpants, food and drinks to the value of $56.48 (particular 9): The practitioner admits particular 9. 1. that the practitioner engaged in improper or unethical conduct in that: 1. on 6 or 7 April 2018 he electronically accessed Patient A's medical records regarding her progress at Paringa Unit, and he was not working at Paringa Unit at the time (particular 2): The practitioner admits particular 2. He states that it was common practice for nursing staff to read a transferred patient's notes in order to report to the next shift, and patients were occasionally returned to Yaralla from other wards, and that was the context in which he read Patient A's notes on 6 April 2018. His reason for access was to report to the morning shift of 7 April 2018 the documented reason for her transfer to Paringa and her documented initial response to the transfer. 1. on 9 April 2018 he telephoned Paringa Unit, asked to speak to Patient A, did not provide his name and said he would call back later; and at about 2pm he telephoned Paringa Unit, asked to speak to Patient A, said his name was "Stephen", attempted to disguise his voice, said he was a personal friend, and provided his personal mobile number (particular 10): The practitioner admits particular 10. 1. at about 9pm on 9 April 2018 he electronically accessed Patient A's medical records when he was not working at the Hospital that day (particular 11): The practitioner admits particular 11. 1. between 12 – 14 April 2018: 1. the practitioner communicated with Patient A's grandmother on Facebook messenger including asking her to contact Patient A, and telling her he was in love with Patient A, that he had suggested Patient A move in with him, that he had left messages on Patient A's Facebook account and wanted to have contact with her, and disclosing personal information about Patient A including her finances and drug use, and 2. the practitioner communicated with Patient A's cousin on Facebook messenger including asking the cousin to contact Patient A and remind her of his suggestion that she move in with him, telling the cousin that he was in love with Patient A and wanted to see her again and that she had improved, and disclosing personal information about Patient A (particular 13): The practitioner admits particular 13. 1. that the practitioner failed between 24 March 2018 and 10 April 2018 to appropriately manage issues arising from his failure to observe proper professional boundaries with Patient A in circumstances where he: 1. failed to seek appropriate advice from a senior peer, clinical supervisor, mentor or professional body, 2. failed to inform Patient A that his inappropriate contact with her was a breach of professional boundaries and that ongoing contact would be inappropriate, 3. failed to advise Patient A to consult her treatment team so she could be supported in dealing with the inappropriate contact, and 4. failed to advise Patient A's treatment team of the inappropriate contact so they could manage any potential risk factors for Patient A (particular 12): The practitioner denies particular 12(a), and admits particular 12 (b), (c) and (d). He states that the Hospital management were aware of the interactions between himself and Patient A, her behaviours had been assessed, and there was no action taken or pending against him. In general it was considered Patient A was still under the effects of a drug-induced psychosis, Ms Sherriff had spoken to him about Patient A and her treating team were made aware of her exhibited behaviours, which were not uncommon in the Yaralla environment. In responding to particular 12 (c) the practitioner stated that after the events of 8 April 2018 he was forbidden from contacting Patient A and so was unable to advise her to consult her treating team so she could be supported. 1. Particular 14 is that the practitioner's conduct in any of particulars 1 to 13 is relied on in combination as a course of conduct amounting to unsatisfactory professional conduct. The practitioner did not respond to this particular in his Statement of 19 December 2019. 2. The practitioner admits that his conduct in the particulars of Complaint One fell below the standard reasonably expected of a registered nurse of equivalent level of training or experience and he is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and/or (l) of the National Law. 3. Complaint Two is that the practitioner is guilty of professional misconduct under s 139E of the National Law, which 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. The HCCC relies on particulars 4, 5, 6, 7, 8, 11 and 12 of Complaint One. 2. The practitioner admits that his conduct amounts to professional misconduct. Evidence 1. The HCCC's documents in exhibit A2 include: 1. Statements by Hospital staff, including as to conversations with Patient A on 9 April 2018 (tab 4); 2. Statement by the Executive Officer to the Chief Executive for Western Sydney Local Health District (22 January 2019) as to a phone call with the practitioner on 18 April 2018 (tab 5); 3. Statement by Rebecca Sherriff, Nursing Unit Manager for the Yaralla Unit (10 May 2019), which includes her discussions with the practitioner on 28 March 2018 about the events of 25 March 2018 and the decision of the Multi-Disciplinary Team to redeploy the practitioner off the Yaralla Unit, and an email she received from the practitioner on 10 April 2018 (tab 6); 4. Transcript of an interview by Patient A and NSW Police (tab 52); 5. Statements made to NSW Police in the course of their investigation (tabs 11-15); 6. Expert reports provided by Christine Muller dated 1 March 2019 and 10 November 2019 (tabs 19, 19B); 7. Documents relating to a complaint made by the practitioner to the HCCC on 16 April 2018 about the questioning of Patient A by Hospital staff (tabs 22, 23); 8. Documents relating to the s 150 proceedings, including a statement by the practitioner dated 23 April 2018 responding to the allegations (tabs 3, 3A, 24); 9. Documents relating to an application made by NSW Police for an AVO, and the hearing of that application on 29 May 2019, including a statement by the practitioner dated 29 May 2018 in response to the application for an AVO (tabs 29, 50, 56); 10. A copy of an essay on Mandatory Reporting written by the practitioner for the course GHMB Legal and Professional Issues, 23 September 2011, provided by the practitioner to the s 150 hearing (tab 36); 11. Copies of messages on Facebook and Facebook messenger (tabs 37, 38A, 38B); 12. The practitioner's response dated 12 March 2019 to the expert report (tab 45); 13. The practitioner's submission to the HCCC dated 8 April 2019 (tab 46); and 14. ERISP transcript of an interview by the practitioner and NSW Police on 31 May 2018 (tab 51). 1. Ms Muller gave oral evidence. 2. The practitioner provided a Statement dated 19 December 2019 responding to the Complaints, and including his evidence as to his reflection on his conduct (ex R1). In his email to the Tribunal of 10 March 2020 the practitioner provided further comment on the complaint, and submissions as to the appropriate orders. 3. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The standard of proof is the civil standard on the balance of probabilities. Due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, in making its findings the Tribunal is required to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order: Forster v Hunter New England Area Health Service [2010] NSWCA 106; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170. Discussion and findings 1. The Tribunal is required to consider, on the evidence, whether the subject matter of the complaint is proven. The practitioner has admitted most of the particulars to Complaint One, and he admits that he is guilty of unsatisfactory professional conduct, and that his conduct amounts to professional misconduct. The Tribunal is satisfied having regard to the terms in which those admissions were made in his Statement of 19 December 2019, at a time when the practitioner was legally represented, that this Statement was prepared with the benefit of legal advice. The practitioner's responses after the hearing to the specific particulars in the complaints in his email of 10 March 2020 are generally consistent with his position as stated in that document. 2. The practitioner did not attend the hearing, or give evidence. His evidence as to what occurred and his explanations for his conduct, was not tested. In addition to his Statement of 19 December 2019 and the email of 10 March 2020, the Tribunal has had regard to the documents in evidence (ex A2) which provide the practitioner's comments on and explanations for his conduct. Those documents include: 1. the practitioner's email of 10 April 2018 to Rebecca Sherriff (tab 20); 2. the practitioner's letter of 23 April 2018 to the Council for the s 150 proceedings (tab 24); 3. an email dated 10 August 2018 to the HCCC responding to the allegations that he formed a relationship with Patient A while working as a registered nurse at the Hospital (tab 42); 4. the practitioner's response to the expert report by Ms Muller (tab 45); 5. transcript of an interview with NSW Police on 31 May 2018 (tab 51); 6. the practitioner's letter dated 29 May 2018 addressed to the Presiding Magistrate responding to the application for an AVO (tab 29); 7. transcript of the practitioner's sworn evidence to Parramatta Local Court on 10 September 2018 (tab 56); and 8. Facebook messages in which the practitioner communicated with Patient A's grandmother and cousin (tab 38). 1. Based on the practitioner's admissions, and the contemporaneous Incident Detail report which included comments from the practitioner (tab 63), the Tribunal is satisfied that the events of 25 March 2018 took place as particularised in particular 1. The practitioner denies that he put his hands around Patient A's waist to move her away, however he admits that he moved her off his lap by pushing her thigh/buttock area, and in the Incident report is recorded as stating that he "put his hands around her waist to keep her from reaching me and my hands may have briefly been in that area but only to move/push her away". 2. The practitioner stated in his email to Ms Sherriff on 10 April 2018 that he had been immediately attracted to Patient A when he first saw her at the Hospital, and fantasised about a relationship with her. His explanation as to the events of 25 March 2018 in his submission to the Council in the s 150 proceedings, and in his letter to the Presiding Magistrate in the AVO proceedings, was that while she was a patient on Yaralla Unit, Patient A would often choose to sit next to him in the patients' lounge area, and they had begun to develop a fondness for each other. Patient A had been exhibiting what he described as "playful" behaviour, and had jumped on his lap a few times during the afternoon shift. 3. Based on Ms Sherriff's statement, as a consequence of that incident the practitioner was redeployed off the Yaralla Unit. While the practitioner states in his email to the Tribunal of 10 March 2020 that he was asked to spend three night shifts away from the Yaralla Unit as there was a shortage of staff, the Tribunal prefers the evidence of Ms Sherriff. Her statement that the incident had been discussed at the Multi-Disciplinary team meeting on 26 March 2018 and that the decision was made at that meeting to move the practitioner off the unit is supported by the contemporaneous Incident Report (tab 63) which records that "staff will be re-deployed to another unit until the patient has an identified improvement in her mental state". Ms Sherriff's statement confirms that there were concerns at that time about the practitioner's behaviour relating to Patient A, and that she advised him that he should have identified the risk to Patient A due to her behaviour and moved away, and handed over any concerns to a female nurse. 4. The practitioner admits, and the evidence in the electronic access logs (tab 79) before the Tribunal supports, that the practitioner accessed Patient A's medical records on 6 and 7 April 2018 between 23.15 to 06.30 and again at 22.43 on 7 April 2018; and again on 9 April 2018 at 21.12. On the first occasion Patient A was no longer on the Yaralla Unit. The practitioner's explanation (in his email to Ms Sherriff) was that he was interested in knowing of her progress. His explanation in the s 150 proceedings for the access on 9 April 2018 was that he needed to see what was happening with Patient A, as he had a genuine concern for her (tab 24). 5. The practitioner admits particular 3, other than the allegation that Patient A hugged him on 7 April 2018. In his email to Ms Sherriff the practitioner states that he had purchased toiletries, KFC and soft drink which he delivered to Patient A at Paringa Unit on 7 April 2018, and that he "was becoming more attracted to her", and that Patient A was thankful and "gave me a hug". In his Statement of 19 December 2019 the practitioner stated that it was not uncommon for staff to provide selected patients with comfort foods and/or toiletries; at that time Patient A had no visitors or money to purchase items, and he purchased food for her and her friends in the Paringa Unit as it was his understanding that she had no visitors to deliver items. In the submission of 10 March 2020 the practitioner stated that the request that he buy cigarettes was not unusual, and that selected and settled patients in Paringa were permitted to smoke in a designated area about 20m outside of the unit. The Tribunal notes that while the practitioner denies that Patient A hugged him on 7 April, stating in the 10 March 2020 submissions that that happened on 8 April 2018, that is not consistent with his email to Ms Sherriff three days after the event. The Tribunal is satisfied that the events took place as particularised in particular 3. 6. The practitioner admits that he made the telephone calls as particularised in particulars 4 (on 8 April 2018) and 10 (on 9 April 2018). The Hospital worksheet and roster records confirm that the practitioner was not at work on 8 April 2018 or 9 April 2018 (tabs 55 and 78). The practitioner's email to Ms Sherriff on 10 April 2018 confirms that on 8 April 2018 he offered to take Patient A to the shops, that he would get her cigarettes, and that he suggested he meet her past the boom gate. The practitioner's evidence in the AVO proceedings (tab 56, p 61) was that on 9 April 2018 he had given the name "Stephen" as he did not want to attract attention by giving his own name. 7. The events of the afternoon of 8 April 2018 are particularised in detail in the complaint, and most are admitted. The CCTV images in evidence (tab 53) show the practitioner arriving at the hospital shortly before 2pm and returning at 7.45pm with Patient A in the passenger seat. The Tribunal is satisfied that the documents in evidence, in particular the practitioner's email of 10 April 2018 to Ms Sherriff, the practitioner's submission to the s 150 hearing, and the Facebook messages to Patient A's cousin and grandmother, confirm that, as particularised in particulars 5, 6, 7, 8 and 9: 1. When Patient A got in the practitioner's car he asked her whether she had obtained additional leave, and she replied no, and said that she intended to go AWOL, and so he knew that she did not have permission to leave; 2. During the afternoon the practitioner asked Patient A to stay with him for a weekend at the InterContinental Hotel, which he had already booked for his birthday; they discussed Patient A living with him; and he offered her a holiday in London; 3. There was physical contact in the car when parked in a secluded spot; that Patient A asked him whether the car had been "christened" and he replied "No", and she asked him to get tested first; 4. The practitioner and Patient A kissed, hugged and held hands; and 5. The practitioner bought $56.48 worth of items for Patient A at the IGA including underwear and socks. 1. The practitioner stated in his email to Ms Sherriff on 10 April 2018 that when Patient A got in his car on 8 April 2018 and stated she wanted to go out for the day, for him that was "too good an offer to reject", and he wanted to spend the day with her. While in the car he had no doubt that Patient A was willing to become his partner. He stated that on that afternoon Patient A did not display signs of mental health symptoms and seemed to be a "normal" person, and that she knew what she was saying and doing. In his response to the HCCC on 10 August 2018 concerning the allegations he stated that Patient A initiated "low level" close personal contact, being kissing and touching on top of clothing, and that she made the initial move to lean forward to him to be kissed. Patient A had made sexualised comments to him and asked him to "get tested first"; and he was tested on the following day for sexual health status because he felt they were going to engage in a sexual relationship. 2. The practitioner denies particular 8(d) that he touched Patient A underneath her clothes. In a statement given to NSW Police Jennifer Panis, Clinical Nurse Specialist working at Paringa Unit (18 April 2018) (tab 11) states that when she started her shift at 2.30pm on 8 April 2018 Patient A had not returned from her ground leave, which she had three times a day for 15 minutes. Patient A returned at 7.50pm with grocery bags, and had been crying. At 10.20pm she and a colleague spoke with Patient A, who told them she had met with the practitioner; and that there had been kissing and touching on top of and under clothes. That is consistent with what Patient A is recorded as saying to Ms Panis' colleague in her statement to NSW Police (tab 12), that the practitioner was kissing her and putting his hands down her top. The practitioner referred to "a lot of low level 'teenage' stuff" in his communication with Patient A's cousin (tab 38B). In the context of the sexualised conversation and the practitioner's admissions as to the physical contact, the Tribunal is satisfied that the touching occurred as particularised. 3. The practitioner has admitted particular 13, that he contacted and communicated with Patient A's grandmother and cousin by Facebook message between 12 – 14 April 2018. Copies of the messages are in evidence (tab 38A, 38B). The evidence confirms that the Facebook contacts came after the practitioner had been directed by the Hospital not to attempt any contact with Patient A, a direction which the practitioner confirmed he had received by email on 12 April 2018 (tab 21, p 171). Expert evidence 1. Expert evidence was provided in two reports by Christine Muller. Ms Muller is a registered nurse since 1982 who has specialised in Adult Mental Health. Ms Muller holds the qualifications of Graduate Diploma in Science-Mental Health (1995) and a Master of Mental Health Nursing – Mental Health Nurse Practitioner (2004), and has been a Fellow of the Australian College of Mental Health Nurses since 2004. Her experience working as a mental health nurse includes 10 years full time experience in acute mental health inpatient units and over 5 years as a Clinical Nurse Specialist on an Adult Mental Health Extended Hours/Crisis Team. Ms Muller has been employed in the role as Nurse Practitioner (Adult Mental Health) since September 2008. 2. Ms Muller stated that based on the medical records provided to her, Patient A had been admitted to hospital as an involuntary patient for treatment of exacerbation of her schizoaffective disorder, and was discharged on 7 March 2018 after a 5 day admission, but was non adherent with treatment. A psychiatric assessment on 28 March 2018 noted that she presented as being disorganised, disinhibited and paranoid, as loud, intrusive and invading others' space, as delusional, and as having partial insight but compromised judgment. She was assessed as being a risk to herself (reputation, retaliation, misadventure and chronic deterioration) and others (verbal aggression). During her admission Patient A was disorganised, delusional, disinhibited and labile. 3. In her report dated 1 March 2019 Ms Muller referred to the Nurses and Midwifery Board of Australia Code of Conduct (the Code of Conduct) provisions defining a professional relationship, professional boundaries, and over-involvement, and the requirement in Principle 4.1(d) that acting with professional integrity included avoiding sexual relationships with a person with whom the nurse currently or previously had a professional relationship. Ms Muller's opinion was that the practitioner's behaviour was significantly below the standard reasonably expected of a registered nurse with equivalent experience and qualification, in each of the following respects: 1. Assuming the practitioner's version of events on 25 March 2018, he had failed to recognise that Patient A's over familiar and disinhibited behaviour could be a symptom of her illness, and he did not act in a manner appropriate to manage the risk of harm to her. He should have limited the inappropriate behaviour and removed himself from close proximity, and should have documented her behaviour in her clinical record; 2. The practitioner's statements to the Magistrate in the AVO hearing and to NSW Police during his interview that he was developing a fondness for Patient A, and that she was displaying playful behaviour, and that she was deliberately making false allegations to attract attention, did not demonstrate an understanding of the nature of Patient A's illness, and were grossly inappropriate; 3. The practitioner's behaviour in phoning Patient A in 8 April 2018 while off duty and asking her to meet him so he could give her some cigarettes was a breach of the Code of Conduct, and grossly inappropriate; 4. The practitioner's behaviour in taking Patient A in his private vehicle, while off duty, away from the Hospital grounds for approximately 6 hours in circumstances where Patient A had been refused extended leave and he was aware of that, and she had stated she was going AWOL, was in breach of the Code of Conduct, and demonstrated over-involvement and a breach of professional boundaries; 5. Based on the practitioner's version of events, his physical contact with Patient A on 8 April 2018 including kissing passionately while seated in the car and touching each other's legs, holding her hand while walking in the park, and placing his arm around her waist as they walked, was not in keeping with the Code of Conduct, demonstrated a breach of professional boundaries and over-involvement, and he was not acting with professional integrity. The behaviour was self-serving and predatory in nature and demonstrated lack of insight into the nature of Patient A's mental health problem. Ms Muller expressed the same opinion, considering Patient A's version of those events; 6. The practitioner's conduct on 8 April 2018 in talking to Patient A about moving in together, paying for their travel to London, discussing whether he had engaged in sexual intercourse in his car, and agreeing to undertake testing for sexually transmitted infections, demonstrated a clear lack of insight regarding her mental health problems and vulnerabilities, was not in keeping with the Code of Conduct, and was self-serving and predatory; 7. The practitioner was in breach of the Code of Conduct when he phoned Patient A on 9 April 2018 and his behaviour demonstrated a breach of professional boundaries, and over-involvement, and he was not acting with professional integrity; 8. The practitioner's decision to access Patient A's health record when he was off duty and not directly involved in her care was a breach of the Code of Conduct; 9. The practitioner's claims that he was overwhelmed by his attraction to Patient A and powerless to resist her demonstrated a clear lack of understanding of his role as a senior mental health nurse, ethical practice, and professional boundaries, and in trying to hide his inappropriate contact with Patient A he was aware that his feelings and behaviour were wrong but did nothing to address that. His behaviour was grossly inappropriate; 10. The practitioner's assertion that he was not in a therapeutic relationship with Patient A because she was in a different ward was naive and inappropriate: she had previously been admitted to the Hospital on several occasions, and due to the chronic and relapsing nature of her illness it is likely that all mental health nurses that had been involved with her care continue to have a therapeutic relationship with her and thus the relationship had a clear imbalance of power. It is inappropriate to consider that a mental health nurse could have a personal relationship with any patient to whom they have provided clinical care, and that assertion was grossly inappropriate; and 11. The practitioner's claims that Patient A exhibited no signs of mental illness during their outing on 8 April 2018 and that she appeared normal and knew what she was doing were fundamentally flawed. His failure to recognise disinhibited, over familiar behaviour, delusional ideation and poor judgment was significantly below the standard reasonably expected of a registered nurse with equivalent experience and qualification. 1. In a supplementary report provided on 10 November 2019 Ms Muller addressed the practitioner's conduct in accessing Patient A's health record after she was transferred to Paringa Unit, and commented that his decision to do so when he was not directly involved in her care was a breach of NSW Health Privacy Policy, and was significantly below the standard reasonably expected of a registered nurse with equivalent experience and qualification. 2. Ms Muller considered the practitioner's email to Ms Sherriff of 10 April 2018, his complaint to the HCCC, and his letter to the Magistrate in the AVO proceedings, and commented that on the basis of his statements in those documents she was of the opinion that he was aware that his conduct in visiting Patient A in Paringa Unit to give her some food, drinks and toiletries was inappropriate. On that basis, Ms Muller was also of the opinion that he was aware that it was inappropriate to allow Patient A to hug him and ask him to provide her with cigarettes. Those actions were significantly below the standard reasonably expected of a registered nurse with equivalent experience and qualification. 3. In oral evidence Ms Muller stated that her opinions as expressed in her reports had not changed after reading the practitioner's Statement of 19 December 2019. In her opinion the practitioner should have known of the appropriate professional boundaries, and there was no sign of any insight or remorse, or how to manage a situation in which he had feelings for Patient A. Whether the practitioner is guilty of unsatisfactory professional conduct 1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or s 139B(1)(l) of the National Law. In her expert reports Ms Muller referred to the Code of Conduct. Principle 4 of that document (ex A1, tab 61) provides that nurses "embody integrity, honesty, respect and compassion". Part 4.1 Professional Boundaries states that adhering to professional boundaries promotes person-centred practice and protects both parties, and includes the factors required to maintain professional boundaries, which refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of people, and behaviour which serves a nurse's own personal views, feelings and relationships that are not relevant to the professional relationship. The factors include that nurses must recognise the inherent power imbalance that exists between nurses and people in their care; be clear about professional boundaries that must exist in professional relationships for objectivity in care; avoid sexual relationships with persons with whom they have currently or had previously entered into a professional relationship, noting that those relationships are inappropriate in most circumstances; and recognise when over-involvement has occurred and disclose that concern to an appropriate person. 2. The Code of Conduct defines the term "over-involvement": Over-involvement is when the nurse confuses their needs with the needs of the person in their care and crosses the boundary of a professional relationship. Behaviour may include favouritism, gifts, intimacy or inappropriate relationships with the partner or family member of a person in the nurse's care. 1. The Tribunal accepts the evidence of Ms Muller, who is well qualified by her training and experience to express those opinions, in her statement of opinion that the practitioner's conduct as particularised in each of the particulars of Complaint One was significantly below the standard that would reasonably be expected of a registered nurse with equivalent experience and qualification. 2. The Tribunal agrees with Ms Muller that the practitioner should have limited Patient A's inappropriate behaviour on 25 March 2018, and should have taken steps to document that behaviour, and to disclose to an appropriate person his feelings for Patient A. 3. The Tribunal agrees with Ms Muller that the practitioner's conduct on 8 April 2018 in telephoning Patient A to arrange to meet to give her cigarettes, taking Patient A in his car away from the Hospital for approximately 6 hours when he was aware she had been refused additional leave, the physical contact, the discussions of moving in together, a weekend in a hotel and a trip to London, and agreeing to undertake testing for sexually transmitted infections, and the purchase of personal items for Patient A, was behaviour that demonstrated a breach of professional boundaries and over-involvement. The Tribunal agrees that that behaviour was both self-serving and inappropriate, and demonstrated a lack of insight into Patient A's mental health issues and the inherent power imbalance in the relationship. 4. The Tribunal agrees with Ms Muller that the practitioner's accessing of Patient A's records on 6 and 9 April 2018, in circumstances where he was not on duty and on his account had no involvement in her ongoing care, was inappropriate. It was contrary to Part 3.5(d) of Principle 3 in the Code of Conduct that a nurse must access records only when professionally involved in the care of the person and authorised to do so; in breach of the NSW Health Privacy Manual requirement that NSW Health staff may only view, access, use and disclose personal health information when necessary to do so in order to carry out their work duties; and a further demonstration of his over-involvement. The practitioner's comment in the email to Ms Sherriff on 10 April 2018 that he "probably shouldn't have done that" in reference to the access on 9 April 2018 was an acknowledgement that he was aware that this behaviour was wrong. 5. The Tribunal agrees with Ms Muller that the practitioner's conduct in contacting Patient A's grandmother and cousin was grossly inappropriate. Those messages include requests that the grandmother contact Patient A to ask how she feels now and later when she is ready for discharge, and that the cousin could establish how she feels. Those contacts occurred after the practitioner had been warned not to attempt to contact Patient A. 6. Ms Muller was of the opinion that the practitioner's conduct as particularised in particulars 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 13 was significantly below the standard reasonably expected of a registered nurse of equivalent experience and qualification. The Tribunal agrees with that assessment. The practitioner failed to observe proper professional boundaries in his actions on 25 March 2018 and 8 April 2018. He failed to properly manage issues arising from that failure, in particular in not recognising and taking steps to manage his over-involvement, including by failing to inform Patient A that his inappropriate contact with her was a breach of professional boundaries and that she should consult her treatment team, and by failing to inform Patient A's treatment team of the inappropriate contact. The practitioner's response to particular 12(a), that the Hospital management were aware of the interactions between himself and Patient A and of her exhibited behaviours and that there was no action taken or pending against him, may be responsive to the events of 25 March 2018, but not the later conduct between 6 to 9 April 2018. His acknowledgment in his statement of 19 December 2019 that Patient A was still under the effects of a drug-induced psychosis contradicts his expressed view that on 8 April 2018 she was behaving normally and there were no signs of mental health issues. In the circumstances the practitioner failed as required by Principle 4.1(e) of the Code of Conduct to recognise and disclose his over-involvement. Further, in accessing Patient A's records in the circumstances of particulars 2 and 11, the practitioner breached the requirements of the Code of Conduct and NSW Health Privacy Policy. 7. The practitioner has maintained that his relationship with Patient A, and the events of 8 April 2018, occurred when he was off duty, and that allegations of conduct "in the practice of nursing" should only relate to activity during periods of active employment, that is, on shift. He maintains that he was not acting in or performing the role of a registered nurse on 8 April 2018, and his actions on 8 April 2018 occurred when he was not on shift, and not on Hospital premises. In his email of 10 March 2020 the practitioner maintained his position that at the conclusion of periods of active employment, that is on shift as a nurse, he was not acting or otherwise conducting himself as a registered nurse. 8. The Tribunal does not accept that submission. The practitioner's position is contradicted by his explanation in his submission of 10 March 2020 as to why he accessed Patient A's health records on 6 April 2018 when she was in Paringa Unit, in which he states that he anticipated that Patient A may at some stage be returned to Yaralla Unit. More fundamentally, the practitioner had been employed for some time at the Hospital, he knew Patient A from previous admissions, and he anticipated that she may return to the unit in which he was working. The Tribunal does not accept that he could properly distinguish between conduct occurring while he was on shift and Patient A was on his unit, and otherwise. The Tribunal agrees with Ms Muller that the mental health nurses who had been involved in Patient A's care would continue to have a professional relationship with her and that that relationship would have a clear imbalance of power. 9. The Tribunal finds that even when Patient A was not a patient on the ward on which he was working, as a mental health nurse who had been involved in her care the practitioner continued to have a professional relationship with her. As such, his obligation to maintain professional boundaries continued. His failure to do so, and his failure to recognise and manage his over-involvement with Patient A, was a breach of his obligations under the Code of Conduct. As discussed in Attia v Health Care Complaints Commission [2017] NSWSC 1066, the standards and obligations imposed on or expected of practitioners of a particular health profession prescribed in the applicable Codes of Conduct inform "the practice of the practitioner's profession" for the purpose of s 139B(1)(a), consistent with the requirement to give an expansive meaning to such provisions when instrumentally used in protective legislation such as the National Law. The Tribunal does not accept the practitioner's submission that his conduct while not on shift cannot fall within s 139B(1)(a) or (l). 10. The Tribunal is satisfied that the practitioner's conduct as particularised in each of particulars 1 to 11 and 13 in Complaint One was substantially below the standard reasonably expected of a registered nurse of equivalent experience and qualification, and accordingly was unsatisfactory professional conduct under s 139B(1)(a) of the National Law. 11. At section 12(a) of her report of 1 March 2019 Ms Muller responded to the practitioner's claims that he was overwhelmed by his attraction to Patient A and was powerless to resist her that this demonstrated a clear lack of understanding of his role as a senior mental health nurse caring for Patient A, ethical practice and the need for professional boundaries. In her opinion if he did find himself feeling overwhelmingly attracted to Patient A he would have been better advised to seek advice and support from a senior peer, clinical supervisor or mentor, and he could have sought advice from professional bodies such as the Australian College of Mental Health Nurses (of which he was a member), NSW Nurses and Midwives' Association, the NSW Nursing and Midwifery Office or AHPRA. The Tribunal accepts that evidence and finds that particular 12(a), which the practitioner denies, is proven. The practitioner has admitted particulars 12(b), (c) and (d). 12. The complaint alleges unsatisfactory professional conduct under s 139B(1)(a) "and/or" (l) of the National Law. As held in Health Care Complaints Commission v Achurch [2019] NSWCATOD 20, the use of the word "other" in s 139B(1)(l) limits the operation of that provision to conduct not falling within s 139B(1)(a). That is consistent with the conclusion reached in Attia, that if the impugned conduct falls within s 139B(1)(a), subsection (1)(l) has no work to do. 13. The Tribunal has concluded that s 139B(1)(a) applies to the practitioner's conduct as particularised in Complaint One. We would also find that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l). The Tribunal is satisfied, having regard to the standards and requirements as stated in the Code of Conduct, and to the practitioner's response, that he failed to appropriately manage the issues arising from his failure to observe proper professional boundaries, as required under Principle 4 of the Code of Conduct as particularised in all the particulars in Complaint One. That conduct was unethical, and accordingly unsatisfactory professional conduct under s 139B(1)(l) of the National Law: Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [41]. 14. Particular 14 is framed in the following terms: The conduct in any of Particulars 1 to 13 above is repeated and relied upon in combination as a course of conduct amounting unsatisfactory professional conduct. 1. In Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102] the Tribunal concluded, applying Lucire v Health Care Complaints Commission [2011] NSWCA 99, that an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct by a tribunal notwithstanding this is not specified in the legislation (cf. s 139E) which expressly permits the accumulation of incidents of unsatisfactory professional conduct to reach a finding of professional misconduct. 2. The Tribunal understands particular 14 to be that the Tribunal should consider whether any two or more of particulars 1 to 13 taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct. The Tribunal is satisfied that each of the particulars 1 to 13 in Complaint One is proven, and that the practitioner is guilty of unsatisfactory professional conduct in relation to each individual particular. It is not necessary to make a finding as to particular 14. Whether the practitioner is guilty of professional misconduct 1. In considering whether that conduct is professional misconduct as defined in s 139E of the National Law, the Tribunal notes that the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. 2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: 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). 1. The Tribunal is of the view that the practitioner's conduct on 8 April 2018, as particularised in particulars 4, 5, 6, 7 and 8 was conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. The practitioner's behaviour on that day, in arranging to meet and then taking a patient away for several hours from the hospital to which she had been involuntarily admitted, when he was aware from the time she got into his car that she did not have permission to leave the hospital; and in the conversations particularised in particulars 6 and 7, and the physical contact particularised in particular 8, were a sustained, and deliberate breach of his professional obligations to Patient A. The Tribunal agrees with the characterisation of that conduct by Ms Muller as predatory and grossly inappropriate. That conduct demonstrates a fundamental defect of character, and a comprehensive failure to maintain professional standards and obligations. The Tribunal finds that the practitioner is guilty of professional misconduct. Protective orders 1. The practitioner has admitted, and the Tribunal has found, that the subject matter of the complaint is proved, and that the practitioner is guilty of unsatisfactory professional conduct, and professional misconduct. The Tribunal's powers to make orders are specified in s 149A, and, as a consequence of the finding that the practitioner is guilty of professional misconduct, include under s 149C(1)(b) the power to cancel his registration, and under s 149C(5), to make a prohibition order. 2. The HCCC submits that the appropriate protective orders are: 1. An order under s 149C(1)(b) cancelling the practitioner's registration; 2. An order under s 149C(7) that an application for review of that order may not be made until after 2 years; 3. A prohibition order under s 149C(5). 1. The HCCC submits that those orders are appropriate having regard to the seriousness of the practitioner's conduct; the extent to which the practitioner attempted to conceal his relationship with Patient A; his lack of insight; and the capacity of his conduct to bring the profession of nursing into disrepute. 2. The practitioner opposes suspension or cancellation of his registration. He accepts that his actions on 8 April 2018 fell below the standard of a registered nurse of his experience and education, however maintains that the allegations of sustained instances of unsatisfactory conduct over a period of time are not justified given he was under no administrative or disciplinary action from his employer as a result of workplace issues during March and early April 2018. He states that he acted out of character and did not think through his actions on 8 April 2018. He was emotionally vulnerable at the time due to his recent failed relationships history, including ongoing disputes with his ex wife on access to his two daughters and child support costs. While not formally diagnosed he believes he was experiencing a degree of depression. His judgment was obviously clouded and he made critical errors of judgment on 8 and 9 April 2018. He was willing to take the risk in befriending a former patient on his ward because he needed a friend and he thought she needed someone to look after her. There is no greater than average risk of a similar set of circumstances occurring again. 3. The practitioner submits that given the two years he has not worked as a registered nurse, the Tribunal should permit him to work in a non-mental health environment for 12 months with a view to returning to mental health environments after a review of his work performance; or that he be allowed to be employed in a mental health environment under supervision. 4. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A. 5. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. The Tribunal considers that the following factors are relevant in determining what protective orders are warranted: 1. The practitioner's conduct was serious, involving a series of breaches of professional boundaries, with a vulnerable involuntary patient with a significant mental health history of which he was aware; 2. The practitioner was aware that his actions were wrong, including in arranging to meet Patient A at the Hospital boom gates on 8 April and in using a false name and disguising his voice so he would not be recognised in the phone call on 8 April 2018; and 3. The practitioner has not acknowledged that he behaved in an inappropriate manner, instead blaming Patient A for what happened, stating in his email to Ms Sherriff that "she has destroyed me" and he had lost his job and his car, and stating in his interview with NSW Police that he was the victim, and the vulnerable one. 1. Of most concern is that there is no indication in any of the practitioner's statements or submissions of insight into the inappropriateness of his conduct, in deciding to embark on a relationship with a patient under his care, and in failing to recognise her vulnerability. The practitioner has provided no indication that he understands or has reflected on his professional responsibilities, including his ethical responsibilities, as a registered nurse. Instead, the practitioner's communications with the HCCC by email on 12 March 2019 (tab 45) and to the Tribunal in his submissions of 10 March 2020 reflect a position that he has "served his time" and should be permitted to re-register. 2. The Tribunal is satisfied that in the interests of protecting the public from the apprehended harm that might be caused, and the general deterrence and maintenance of public confidence in the profession, the order sought by the HCCC for cancellation of the practitioner's registration should be made. In the absence of any demonstrated steps towards remediation, or reflection, the Tribunal agrees that the practitioner should be precluded from applying for re-registration for a period of two years. That period is a minimum period within which he should not be able to practise his profession, thus sending a message to him, the profession and the public about the seriousness of his breach of professional standards; it also holds open to the practitioner the possibility that he may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time: Chen v Health Care Complaints Commission [2017] NSWCA 186. 3. The HCCC also seeks an order under s 149C(5) of the National Law, which provides: (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. 1. The term "health services" is defined in s 5: health service includes the following services, whether provided as public or private services— (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services. 1. The Tribunal must be satisfied that the practitioner poses "a substantial risk to the health of members of the public" before it can consider whether a prohibition order should be made. That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]. 2. In the context of the practitioner's demonstrated lack of insight or acknowledgement of his serious breaches of professional standards, the Tribunal considers that the practitioner poses a substantial risk if working in any caregiving role, including provision of personal or health services in the community sector, involving potentially vulnerable people. In his letter to the Council for the s 150 proceedings the practitioner stated that he would be making inquiries into obtaining an Assistant in Nursing position at a private mental health facility when able to do so; it appears from his submission of 10 March 2020 that he has not done so yet. He has previously worked as a child protection case officer, and for a mental health NGO. The statement in the submission of 10 March 2020 that he wants to return to work in a non-mental health environment and later a mental health environment causes concern to the Tribunal that the practitioner may seek employment in a health services field, such as youth work or aged care or other roles similar to those he has been engaged in in the past, in which he would have contact with vulnerable clients. The Tribunal is satisfied that a prohibition order is required, stated in the broadest possible terms to cover all health services. Such an order should remain in place until such time as the practitioner can demonstrate sufficient rehabilitation to warrant an order under s 163B of the National Law so as to permit him to be re-registered and he is re-registered as a nurse. Costs 1. The HCCC seeks an order that the practitioner pay its costs of the proceedings. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles applicable to the costs of the proceedings were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. There is no disentitling conduct as on the part of the HCCC in its conduct of the proceedings. It is appropriate to order that the practitioner pay the costs of the HCCC. Orders 1. The Tribunal orders: 1. Pursuant to a finding of professional misconduct, the Respondent's registration as a nurse is cancelled from the date of this decision under s 149C(1)(b) of the Health Practitioner Regulation National Law; 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law, the Respondent is not to make any application for review of the cancellation of his registration for a period of two years from the date of this decision; 3. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law, the Respondent is prohibited from providing any health services as defined in s 5 of the Health Practitioner Regulation National Law unless and until such time as he is registered as a Registered Nurse; 4. The Respondent is to pay the costs of the Health Care Complaints Commission, 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 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: 14 May 2020