NURSING AND MIDWIFERY PROFESSIONAL STANDARDS …

HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) No 86a

NURSING AND MIDWIFERY PROFESSIONAL STANDARDS COMMITTEE OF NSW

INQUIRY UNDER SECTION 171

RONNIE OBUSAN

REGISTRATION NUMBER: NMW0001282880

REASONS FOR DECISION

SUPPRESSION ORDERS APPLY

CITATION: HCCC v Ronnie Obusan [2015] NSWNMPSC 4

PARTIES: NSW Health Care Complaints Commission (Complainant) represented by Mr Patrick Griffin SC, instructed by Ms Jaimee Dinihan, solicitor, of Health Care Complaints Commission

Ronnie Obusan - represented by Ms Linda Alexander, NSW Nurses and Midwives' Association

FILE NUMBER: 2015/04

TRIBUNAL: Ms Belinda Baker (Chairperson)Ms Anita Bizzotto (Nurse Member) Ms Valerie Gibson (Nurse Member) Mr David Bell (Lay Member)

DATE OF HEARING: 12 - 14 October 2015

DATE OF DECISION: 22 October 2015

DATE OF ORDERS: 22 October 2015

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SUMMARY

1. Patient A suffers from Borderline Personality Disorder and Complex Post Traumatic

Stress Disorder. She has attempted suicide on a number of occasions. Following

one such suicide attempt, she was hospitalised in the Pialla Unit of the Nepean

Hospital for a period of some 9 months from 2012 until early 2013. The events

related with these proceedings are said to have occurred during Patient A’s

admission at the Pialla Unit.

2. The Respondent was a psychiatric nurse employed in the Pialla Unit from 2009 to

December 2012. In summary, it is alleged that the Respondent engaged in

inappropriate behaviour towards Patient A, including that he danced with Patient A

and that he called her “lovely [Patient A]”, “beautiful [Patient A]” and “sexy [Patient

A]”. It is further alleged that on either 27 or 28 October 2012, the Respondent

touched Patient A’s bare stomach, kissed her and made inappropriate statements to

her, including that he would miss her when he went on holidays. The Respondent

denied all of the allegations.

3. For the reasons outlined below, the Committee was comfortably satisfied that the

complaint was established and that the Respondent is guilty of unsatisfactory

professional conduct. Consequential orders were made.

COMPLAINT

4. The complaint alleges that the Respondent, being a registered nurse under the

Health Practitioner Regulation National Law (NSW) (“National Law”), is guilty of

unsatisfactory professional conduct within the meaning of s. 139B of the National

Law, in that he engaged in conduct that demonstrates that the knowledge, skill or

judgment possessed or care exercised, by him in the practice of nursing is

significantly below the standard reasonably expected of a practitioner of an

equivalent level of training or experience.

5. The particulars of the complaint are that:

“1. Between 21 April 2012 and 28 October 2012 on more than one occasion, the practitioner failed to observe appropriate professional boundaries in that he asked patient A to dance.

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2. On one occasion between approximately 21 April 2012 and 28 October 2012 in the courtyard of the Pialla Unit, the practitioner failed to observe appropriate professional boundaries in that he:

(a) Asked Patient A to dance;(b) Danced with Patient A in the presence of other patients.

3. Between approximately 21 April 2012 and 28 October 2012, on more than one occasion, the practitioner failed to observe appropriate professional boundaries in that he said in the presence of Patient A words to the effect:

(a) There’s lovely [Patient A];(b) There’s beautiful [Patient A];(c) There’s sexy [Patient A].

4. On 27 October 2012, the practitioner failed to observe appropriate boundaries in that:

(a) He rubbed Patient A’s bare stomach around her naval ring;(b) He kissed Patient A;(c) When Patient A said to the practitioner ‘Ronnie you can’t do this’, he said

to Patient A words to the effect:

(i) “I’ll be going on holidays for two weeks and you might not be here when I get back”;

(ii) “Please please, I’m going on holidays”;(iii) “Don’t say anything about this... I’m married”;(iv) He would miss her when he was on holidays.

SUPPRESSION ORDERS

6. The Chairperson of the Committee made Suppression Orders in relation to the name

of Patient A, and two further Patients (Patient B and Patient C) in accordance with

provisions of Clause 7 of Schedule 5D of the National Law. Only patients A and B

are referred to in these reasons. Their names are indicated in the schedule annexed

hereto and marked “A” and any information that may identify either of them is not to

be published. Annexure A will only be attached to the original Reasons for Decision

held by the Registry and must not be reproduced.

APPLICABLE LAW

7. Section 139B of the National Law provides as follows:

“139B Meaning of “unsatisfactory professional conduct” of registered health practitioner generally [NSW]

(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following—

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(a) Conduct significantly below reasonable standardConduct 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 conductAny other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession.”

8. The phrase “significantly below the standard expected of a practitioner of an

equivalent level of training or experience” is not defined in the National Law.

However, in Re A Medical Practitioner and the Medical Practice Act (unreported,

NSWMT, 3 September 2007), Deputy Chairperson Judge Freeman stated (in relation

to legislation in the same terms as s.139B of the National Law) that:

“As a general principle, the use of the term ‘significant’ may in law be taken to mean not trivial, of importance, or substantial.”

Standard of Proof Required

9. Although the standard of proof required to establish a complaint in this jurisdiction is

the civil standard, because of the seriousness of the allegations and the gravity of

their consequences, the Committee must be “comfortably satisfied” that the

particulars of the Complaint have been established: Bannister v Walton (1993) 30

NSWLR 699. In these matters, the HCCC bears the onus of proof.

10. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Dixon J said at 362­

363:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences ... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”

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11. The Briginshaw principle applies to the quality or sufficiency of the evidence

available, as Mason CJ, Brennan, Deane and Gaudron JJ held in Neat Holdings Pty

v Karajan Holdings Pty Ltd (1992) 110 ALR 449-450:

“...the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found.’ Statements to that effect should not, however, be understood as directed to the standard of proof.”

EVIDENCE AND SUBMISSIONS BEFORE THE COMMITTEE

12. Two folders of documents were tendered by the HCCC, which included the

complaint, witness statements, clinical notes, together with statements of a peer reviewer, RN Warren Shaw, which commented on the appropriateness of the

Respondent’s alleged actions. The HCCC also tendered a plan of the Pialla Unit.

13. A folder of documents was tendered on behalf of the Respondent. In that folder, the

Committee received a statement of the Respondent, dated 10 September 2015, the

Respondent’s curriculum vitae, a character reference from Ms Sylvia Ridge,

Registered Nurse, dated 3 September 2015, and two documents relating to a

performance review dated 29 February 2012.

14. In addition to the documentary evidence, the Committee heard oral evidence from

RN Julie Lang, RN Jillian Sherwood, RN Darryn Egan (the NUM), RN Warren Shaw (the peer reviewer), Patient A and the Respondent. At the Committee’s request, the

HCCC also called Dr Brakoulias (Patient A’s treating psychiatrist).

15. At the hearing, the HCCC was represented by Mr Patrick Griffin SC, instructed by

Ms Jaimee Dinihan, solicitor of the HCCC. The Respondent was represented by

Ms Linda Alexander, solicitor, of the Nurses and Midwives’ Association. The

Committee is very grateful to both representatives for their assistance in this difficult

matter.

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THE EVIDENCE

Patient A’s background

16. Patient A has a very troubled background. She was sexually and physically abused

when she was very young. Both of her parents were alcoholics. She married at 21

years of age, and was subjected to sexual, emotional and psychological abuse from

her husband for many years prior to their separation in 2009.

17. Despite her difficult childhood and youth, Patient A worked hard, studied nursing at

university and was registered as a nurse in 1995. From 2004 to 2011, Patient A

worked as a lecturer in a Bachelor of Nursing degree in a university in Sydney.

18. However, Patient A was subjected to further violence in 2011. On the evening of

16 December 2011, she was walking through the university grounds when she was

sexually assaulted by unknown males at knifepoint. She did not report the assault to

police, but confided the assault to her academic advisor, who set up a meeting with

the head of campus security. The head of campus security reported the matter to

police, but Patient A declined to make a formal police report.

19. Patient A’s mental health significantly deteriorated in the months following this

assault. On 19 April 2012, Patient A saw her General Practitioner. Patient A told her

general practitioner about the sexual assault in 2011. Patient A’s general practitioner

prescribed her with an antidepressant.

20. On 20 April 2012, Patient A’s doctor prescribed her with another antidepressant and

Xanax. That night, after Patient A’s son had left for the evening, Patient A consumed

Vodka, Xanax and antidepressants in an attempt to overdose. When Patient A’s son

returned home, he found Patient A blue and not breathing. Patient A was then taken

to Nepean Hospital and was subsequently admitted to the Pialla Unit.

21. Patient A was in hospital from 20 April 2012 and was discharged on 22 February

2013. During this time, she was discharged on at least one occasion, but as she

attempted to take her own life again, she was quickly returned to the Pialla Unit. She

remained at the Nepean Hospital until her discharge in February 2013. Patient A

informed the Committee that this was the longest period of time that she has been

hospitalised.

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The Respondent

22. The Respondent was first registered as a nurse in 2008 after completing a Bachelor

of Nursing at the Australian Catholic University. After completing his studies, he

commenced work in the graduate program at Nepean Hospital. As a part of this

Program, he worked in the Pialla Unit from November 2009.

23. At the end of the graduate program, the Respondent obtained full time employment

in the Pialla Unit. He has no formal training in mental health. At all relevant times,

the Pialla Unit was divided into a subacute (or open) ward, and an acute (or closed)

ward. The Respondent was at times rostered in either ward.

24. The Respondent was universally well regarded among the staff at the Pialla Unit.

RN Egan (the NUM) described the Respondent as “one of [his] best staff members”.

The other registered nurses who gave evidence before this Committee similarly

described the Respondent as friendly, hardworking, professional and enthusiastic.

The Allegations

25. Patient A first reported the alleged conduct by the Respondent to her treating

psychiatrist (Dr Brakoulias), her case manager and the psychiatric registered medical

officer on 30 October 2012.

26. On 29 October 2012, Patient A was observed to have slurred speech and

disorganised thoughts. She was then transferred to the closed ward. Following this

transfer, Patient A was then reviewed by Dr Brakoulias, her case manager and the

psychiatric registered medical officer on 30 October 2012. Discussions were had

about the transition of Patient A to independent living at home. It was in the course

of this discussion that Patient A made the disclosure. Patient A’s clinical notes

record the disclosure in the following terms:

“Reports she was behaved inappropriately [sic] by one of the male nursing staff

two nights before yesterday. Reports about one incident she has got witness.

Says this is one of the contributing factors for the overdose.”

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27. The entry in the clinical notes, which was written by Dr Brakoulias, went on to state

that Patient A had no active suicidal, self harm or suicidal thoughts. The patient who

had been said to have witnessed the incident (Patient B) was named in the notes by

her patient number. The notes record that Patient A was “very reluctant to report the

incident”. It is stated that Patient A was informed that it was the treating team’s duty

to report the incident to the NUM. The notes state that Patient A also disclosed that

she had helped nurses with their homework (it is said that Patient A said that she

was “happy for this”), but the treating team stated that this also would be discussed

with the NUM.

28. Dr Brakoulias could not remember any further aspects of Patient A’s disclosure. It is

not clear whether Patient A provided any further particulars to the treating team, or,

indeed, whether Patient A was asked to give any further particulars of the

inappropriate conduct at this time.

29. Patient A’s disclosure was immediately reported to the NUM, RN Egan, by

Dr Brakoulias. RN Egan asked RN Sherwood, who had a “good rapport” with

Patient A, to speak to Patient A about the allegations.

30. It appears that RN Sherwood did not speak to Patient A until the following day (31

October 2012). By that time, Patient A had spoken to another registered nurse, RN

Lang, about the incident. RN Lang first spoke to Patient A about the incident during

the evening shift on 30 October 2012.

31. In a statement dated 28 November 2012, RN Lang reported that Patient A had

informed her of the following matters:

(a) That on 27 October 2012, the Respondent had rubbed the back of Patient A’s

hand in a suggestive manner on finding out that Patient A had self harmed by

making superficial scratches to her arms;

(b) Patient A had stated that the Respondent asked her if she wanted a dressing

applied, which she declined;

(c) The Respondent asked Patient A to lift her pyjamas up and then proceeded to

rub his fingers around Patient A’s abdominal area;

(d) On 28 October 2012, the Respondent again asked Patient A for her contact

number as he wanted help with his university studies. Patient A gave the

Respondent her mobile number;

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(e) Later in the evening, the Respondent returned to Patient A’s room and requested

a hug as he was going on 4 weeks’ leave. The Respondent then asked Patient A

to kiss him on the cheek, which she eventually did. After this, Patient A stated

that the Respondent continued to ask her to kiss him on the lips which she

refused. He then left the room; and

(f) At approximately 2145, Patient A was lying on her bed when the Respondent

came into the room, stating that he was doing the level 3 observation checks.

The Respondent leaned over Patient A and started to attempt to kiss her on the

mouth. Patient A said “you cannot do this”. The Respondent persisted several

times, and started kissing her down her neck, constantly stating “please”. After a

short time he stopped and left the room.

32. Patient A told RN Lang that the Respondent did not sexually assault her, and that

she did not wish to report it as she had “had worse things happen to [her].”

33. Patient A was interviewed by RN Sherwood and RN Egan on 31 October 2015. A

statement of RN Lehmann (who was present when RN Egan interviewed Patient A)

dated 29 November 2012 records that Patient A gave an account of relevantly

identical conduct to that which is set out in the statement of RN Lang.

34. In a statement dated 5 December 2012, RN Sherwood stated that she spoke to

Patient A on 31 August 2012. RN Sherwood stated that Patient A disclosed that the

Respondent had been “acting possessively towards her for a few weeks. He didn’t

want a male patient hugging her and told her to go and have a shower now after a

male patient hugged her. He was making comments about her bellybutton ring like

he wanted no-one to see it but him.’’ Patient A further stated that “one night Ronnie

[the Respondent] asked her to lift up her shirt so that he could see her belly ring and

made a comment about him being the only one to see it, and then proceeded to

touch her stomach.”

35. Patient A further told RN Sherwood that “Later in the night, Ronnie [the Respondent]

had gone to her room and said that he was going to be away for four weeks and

asked if she would miss him. He kept on begging her to kiss him when she said no.”

Patient A told RN Sherwood that she felt guilty about getting the Respondent into

trouble because he was so gentle and nice.

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Patient A’s evidence

36. In a statement dated 23 July 2013, and in her evidence before the Committee,

Patient A gave evidence that:

(a) One night prior to 27 October 2012, she was in the courtyard of the Pialla Unit.

The Respondent and a number of patients were present. Patient A said that the

Respondent asked Patient A to dance. Patient A said that she could not do

ballroom dancing (as requested by the Respondent) but that she could do the

Cha Cha. She said that she then began dancing the Cha Cha with the

Respondent and the other patients. In evidence, Patient A clarified that the

Respondent was dancing as a part of the group. The dancing did not involve

touching between her and the Respondent;

(b) Patient A had on one occasion cut her brachial artery with a razor blade. Patient

A said that after that occasion, the Respondent told her that he had saved her

life. Patient A said that she did not recall the Respondent being there, but did

recall being surrounded by the treating team. Patient A said that from that time

onwards, the Respondent “began acting more familiar1’. He would say “there’s

lovely [Patient A]”; “there’s beautiful [Patient A]; and “there’s sexy [Patient A].”

(c) In her statement, Patient A said that the Respondent would also act

“possessively” towards her. She gave as an example a male patient who had

schizophrenia. She said that when the Respondent saw Patient A speaking to

the male patient, the Respondent would ask her to go and have a shower. She

said that there were also occasions where the Respondent physically stood

between her and that male patient. In her evidence, Patient A clarified that

“possessive” was not the correct word to describe the Respondent’s actions;

(d) Patient A said that on one occasion as she was getting ready for bed, at around

7:30pm, she was wearing a pyjama top that was shaped like a vest which

exposed her belly ring. She said that the Respondent saw her at the door, saw

her belly ring and asked what it was. Patient A said that the Respondent rubbed

the back of his hand on her stomach around her naval, and said, “I don’t want

people to see that.” Patient A said that the Respondent then said that he would

be down to check on her later;

(e) Patient A said that Patient B was on her bed at this time, and that when this

occurred, she turned around and asked if Patient B had seen what had

happened. Patient A said that she got the “impression that Patient B did not want

to have anything to do with what occurred”;

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(f) Patient A said that the Respondent returned about half an hour later. Patient A

had not changed her pyjamas. The Respondent had a clipboard containing the

patient check list. She said that the Respondent leaned over and said “the reason

that I am back here is to check you off on this board”;

(g) Patient A said that the Respondent had the clipboard in his hands. He attempted

to kiss her. She said that he touched his lips on her lips, a “very soft peck’. She

said that she turned away and said that he “could not do this.” She said that he

did not hurt her. Patient A said that the Respondent then stated that he would be

going away on holidays for two weeks and that she might not be here when she

returned. The Respondent said “please, please, I’m going on holidays”, and

“Don’t say anything about this... I’m married." He also said that he would miss

her because he was going on holidays; and

(h) Patient A said that she had a vague recollection of the Respondent asking her to

assist him with his studies, but she could not recall when that occurred, and that

she had a vague recollection of him asking for her phone number, but that she

could not recall giving it to him.

37. Patient A acknowledged in her evidence that her memory may have been mistaken

as to whether the incidents occurred over one night or two; and as to whether the

Respondent kissed her once or more than once. She also said that she attempted

self harm so frequently that she could not recall whether an attempt at self harm had

occurred at the time of any of the events during 27/ 28 October 2012.

Patient B

38. On 30 October 2012, together with RN Sherwood, RN Egan spoke to Patient B,

whom Patient A had identified as having witnessed an incident. In this conversation,

Patient B stated that she had not witnessed any incident in which a male staff

member had behaved inappropriately with Patient A, nor had she witnessed a male

nurse being alone with Patient A.

39. However, in a statement dated 30 July 2013, Patient B provided an account which

broadly corroborated the surrounding circumstances of one of Patient A’s allegations.

In that statement, Patient B stated that on one night, Patient A had on satin pyjamas

that revealed her naval. Sometime between 6:30pm and 8:30pm, Patient B was lying

on her bed in her corner of the room. Patient B’s bed curtains were drawn, but she

said that she could see from the light above the curtain that the door was open.

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40. Patient B stated that she could hear Patient A having a conversation with a male

nurse. Patient B did not know the male nurse’s name, but described him as being

Asian in appearance, of slight build and quite short. She said that he had a very

recognisable voice. Patient B stated that she wasn’t really listening to the

conversation, but that she did remember hearing the nurse say something about

Patient A’s pyjamas. She did not hear what he said. Patient B said that at this time,

she was preparing to leave the room, and Patient A turned to her and said “Did you

see what he just did?” Patient B said “No [Patient A] I was just lying here with the

curtain drawn.” Patient A said “Are you sure you didn’t see what he did? He put his

hands on my belly button”. Patient B said “No I didn’t see anything."

41. Patient B suffers from Bipolar Disorder. Patient B said that at the time that this

occurred, she was medicated but was feeling very alert. Patient B recalled a

gentleman later coming to speak to her about the male nurse. Patient B said that

she told the gentleman that she did not see anything. She said that this was

“essentially true as [she] didn’t actually see the nurse touch [Patient A].” Patient B

said that she did not elaborate on anything else to the gentleman because she was

frightened and did not want to involve herself.

42. Patient B also described the Respondent as a friendly nurse. She said that he was a

“short bubbly man who always seemed positive and optimistic.” Patient B said that

he never made her feel uncomfortable, but that she deliberately kept her distance

from the male staff as she felt vulnerable during her admission.

43. Patient B was not called to give evidence before this Committee.

The Respondent’s evidence

44. The Respondent has at all times denied the allegations made against him. He has at

all times maintained that:

(i) He has never danced with Patient A or asked her to dance;

(ii) He has never referred to Patient A as the “lovely [Patient A]”; “beautiful

[Patient A]” or “sexy [Patient A]”;

(iii) He has never rubbed Patient A’s stomach around her naval;

(iv) He has never kissed Patient A;

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(v) Patient A has never said to him that he “can’t do this’’; and

(vi) He has never said to Patient A that he’ll be going on holidays and that she

might not be there when he returned; he has never said “please please, I’m

going on holidays”; that he has never said “Don’t say anything about this I’m

married”; and he has never said that he would miss Patient A when on

holidays.

45. The Respondent gave evidence that when he had first started working in the Pialla

Unit, he was told by RN Lahner (who was the NUM at the time) that he should not

nurse or interact with a patient of the opposite sex alone. He was told that this was

to prevent staff members from being the subject of a false allegation. The

Respondent explained in evidence that he now understands that this policy was not a

written policy, but said that it was the practice in the Pialla Unit at the time that he

was there. RN Egan (the NUM) confirmed in evidence that this was the practice at

the Pialla Unit, but RN Egan said that the practice could not always be maintained, in

view of staffing levels.

46. The Respondent also said that in 2011, he had been the subject of a false complaint

by a patient. He had no recollection of the particulars of this complaint, but said that

he was suspended from work in connection with it. The Respondent said that when

he returned to work after the complaint was withdrawn, he was told by RN Egan that

he should avoid being alone with female patients. RN Egan confirmed this. The

Respondent said that because of these instructions, he did not interact with female

patients without another staff member present.

47. As to the allegation that he had danced with Patient A on an unspecified date prior to

October 2012 (Particular 2), the Respondent said that he did remember an occasion

when he went to the courtyard of the subacute area to do a check of the patients. He

said that there were a number of patients dancing to music (or moving to music). He

said that Patient A was one of the patients who was dancing. He said that as part of

the checking process, he would have noted against each patient’s name what they

were doing at this time.

48. The Respondent gave evidence that whilst he was performing this check, he was in

the doorway of the recreation room, from where he could see the patients. The

Respondent was adamant that he was not in the courtyard. The Respondent said

that while he was checking the names of the list, he may have moved his body with

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the music. The Respondent said that the entire check would have only taken a

minute, or less than a minute. The Respondent said that this occurred during a

daytime shift.

49. The Respondent said that on 27 October 2012, he worked an evening shift as the

team leader. Although he was not rostered as the team leader, he said that he had

been asked to perform the role of team leader by RN Sherwood. (In her oral

evidence, RN Sherwood did not recall whether this had occurred, but accepted that it

may have occurred.)

50. The Respondent said that as team leader, he was responsible for allocating the

duties of other team members, that he was responsible for medications, answering

the telephone, speaking with relatives and signing patients in and out for leave. In

evidence, the Respondent said that he did not leave the nursing station for the entire

shift. The Respondent also stated that he worked with at least one other registered

or enrolled nurse in the nurses’ station, and that those nurses also did not leave the

nurses’ station for the shift.

51. The progress notes for Patient A on 27 October 2012 record that shortly before

8:40pm that evening, Patient A opened a wound. She was attended by an enrolled

nurse who provided appropriate clinical care. The Respondent said that, as team

leader, he should have been told about this, but that he did not recall being told about

Patient A’s injuries. He denied attending on Patient A in respect of her injuries on

27 October 2012.

52. The Respondent said that he worked another evening shift on 28 October 2012. The

Respondent said after handover at the beginning of this shift, he noticed that Patient

A was looking unwell and teary. He said that Patient A’s eyes were red. In his

evidence before the Committee, the Respondent said that he noticed this as he was

passing Patient A in the corridor. He said that he did not speak to Patient A at this

time. The Respondent said that he asked RN Sherwood (a female nurse) to look

after Patient A because she had a “good rapport’ with Patient A. He said that he had

no further contact with Patient A during that shift.

53. On 28 October 2012, the Respondent was assigned to the open ward, together with

two other nurses - RN Piyush Patel and RN Sherwood. He accepted that his

responsibilities on 28 October 2012 included taking observations of the patients. On

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28 October 2012, Patient A was required to be sighted every 20 minutes. The

Respondent said that all three nurses shared the responsibility for making checks of

the patients, including Patient A.

54. The Respondent said at around 7:30pm, RN Sherwood went to the main Hospital to

replace a nurse (RN Moreblessing) who had been supervising a patient in the ICU.

The Respondent said that RN Sherwood did not return to the Pialla Unit, but that

RN Sherwood was replaced for the remainder of the shift by RN Moreblessing. He

said that he assumed that RN Sherwood would have handed Patient A’s care to RN

Moreblessing, but that he had no knowledge as to whether this had occurred.

55. The Respondent’s signature appears on the check sheet for Patient A at 8:40pm and

9pm. The Respondent denied having sighted Patient A at the time that he signed

those observations. He said that after supper (which ended at around 8:30pm), he

took the supper trolley from the recreation room to the kitchen. He also went to

collect the supper trolley from the closed ward. He then washed up the dishes.

During this time, the Respondent said that he also went to the toilet. He said that he

had left RN Patel in the recreation room. He thought that RN Patel was playing table

tennis with the patients.

56. The Respondent said that he saw RN Patel when he returned to the nurses’ station

shortly before 9pm. The Respondent said that he noticed that the last checks had

not been done for the patients. The Respondent said that he asked RN Patel

whether the observations had been done. He said that RN Patel “nodded”. The

Respondent then ticked off the list for the patients, including Patient A. The

Respondent acknowledged that it was “poor practice” to tick off the patients when he

had not physically sighted them.

57. The Respondent said that he then briefly left the nurses’ station to move his car (he

explained that his car was in an unsafe location, and that he wanted to move it for his

wife, who was also employed as a registered nurse at Nepean Hospital). However,

before he had walked very far, he remembered that his wife was not working that

evening. The Respondent then returned to the nurses’ station, and ticked off the

patient checklist for 9pm. He acknowledged that this was “poorpractice”, as he had

not physically sighted the patients at that time.

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58. The Respondent said that the next shift commenced work at 9:30pm, but that the

nursing staff members from the following shift typically arrived at around 9:15pm.

59. The twenty-eighth of October 2012 was the Respondent’s last shift in the Pialla Unit.

After that shift, the Respondent went on holiday for 5 weeks. When he returned, he

was informed that he had been suspended. He did not return to the Pialla Unit. The

Respondent has since obtained employment as a registered nurse outside of the

mental health environment.

The evidence of Dr Brakoulias

60. Dr Brakoulias gave evidence at short notice pursuant to a Summons issued by the

Committee. The Committee is grateful for the assistance that he provided.

61. Dr Brakoulias did not recall the content of the disclosure that Patient A made to him

on 30 October 2012. However, he stated that he did remember that Patient A was

lucid at the time that she made the disclosure, and that he had not had any reason to

doubt the truth of Patient A’s account.

62. Dr Brakoulias gave evidence that Patient A has a diagnosis of Borderline Personality

Disorder combined with a history of associated alcohol abuse. He said that Patient A

also suffered from complex Post Traumatic Stress Disorder, but that this was not a

formal DSM diagnosis. Dr Brakoulias explained that Patient A satisfied the

diagnostic criteria for Borderline Personality Disorder because of her frequent

attempts to self harm; impulsivity; mood instability and her unstable sense of self.

63. Dr Brakoulias outlined the medications that Patient A had been prescribed as at

October 2012. He said that she was prescribed Venlafaxine, Olanzapine,

Dicloefenac; Glucosamine; Diazepam and Paracetamol. He stated that those

medications would not have affected Patient A’s ability to recall the events in

question.

64. Dr Brakoulias was asked whether anything happened on 30 October 2012 that would

have impacted on Patient A’s recollection of events of 27/ 28 October 2012. He said

that there was nothing. Dr Brakoulias also said that Patient A was not under the

influence of any drugs or alcohol on 30 October 2012 (he said that if Patient A

had been under the influence of such drugs or alcohol, he would have reported it).

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Dr Brakoulias observed that the clinical notes indicated that Patient A may have

consumed alcohol or another drug such as Phenergan on 29 October 2012. He said

that if this had occurred, it would not have affected Patient A’s account as given to

him on 30 October 2012. Dr Brakoulias was asked about “false memories”. Whilst

Dr Brakoulias said that he was not an expert in this area, he said that he did not

consider that this description applied in this context.

65. Dr Brakoulias said that, in his view, a patient with Borderline Personality Disorder

was no more likely to lie than any other member of the community. However, he

acknowledged that a patient with Borderline Personality Disorder may have particular

needs for approval and affirmation, and that a patient with Borderline Personality

disorder may make an unfounded allegation as a cry for attention. In short, whilst a

patient with Borderline Personality Disorder is no more likely to tell an untruth than

any other member of the community, such a patient may have an additional motive to

lie when compared with other members of the community.

66. Dr Brakoulias conceded that it was “possible” that Patient A had lied in the

allegations that she made on 30 October 2012. Dr Brakoulias acknowledged that

Patient A had lied on many occasions in the past. However, he stated that those lies

concerned Patient A herself - such as whether she had medication or implements to

harm herself in her possession. He said that, to his knowledge, Patient A had never

lied about other people.

67. Dr Brakoulias was also asked about Patient B. He said that he did not recall

Patient B, and was not sure whether he was her treating psychiatrist. Dr Brakoulias

said that, in his view, patients with Bipolar Disorder were no more likely to lie than

other members of the community. As he did not recall Patient B, Dr Brakoulias was

unable to comment further on her veracity.

Peer Reviewer

68. RN Shaw (the Peer Reviewer) provided a report and evidence that if the allegations

made by Patient A were correct, they amounted to a significant falling short of the

standard reasonably expected of a registered nurse of the Respondent’s experience.

69. RN Shaw’s evidence in this respect was uncontentious. It was accepted by both

parties that if Patient A’s allegations were accepted, it followed that the Respondent

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was guilty of unsatisfactory professional conduct; whereas if the Respondent’s

account was accepted, it would follow that the Respondent was not guilty of

unsatisfactory professional conduct.

Other incidents

70. In both the oral and documentary evidence before the Committee, reference was

made to previous complaints made against the Respondent of a sexual nature, one

by a former patient and one by another nursing staff member of the Pialla Unit. Both

allegations were withdrawn by the complainants in question. The Committee was

informed that the former patient was known to police to make false allegations. The

other nursing staff member subsequently withdrew her complaint, and admitted that it

was false. Mr Griffin advised the Committee that the HCCC did not seek to place any

weight on either incident in the determination of the present complaint.

DISCUSSION

71. As Mr Griffin frankly acknowledged in his oral submissions on behalf of the HCCC,

the present matter is a very difficult case. The allegations made by Patient A are

denied in full by the Respondent. There are no eyewitnesses to the events in

question.

72. However, as Mr Griffin pointed out, there is some corroboration of the circumstances

surrounding some of Patient A’s account. Most importantly, there is the statement of

Patient B. Although Patient B did not directly name the Respondent male nurse who

she heard speaking to Patient A, Patient B gave a description of a man who met the

Respondent’s description. Moreover, the account given by Patient B broadly

corroborates Patient A’s account in that she (i) confirmed that a male nurse was

speaking to Patient A near the doorway; (ii) confirmed that Patient A was wearing

pyjamas that exposed her naval; (iii) confirmed that Patient A and the male nurse

were speaking about Patient A’s pyjamas; and (iv) confirmed that after this

interaction, Patient A immediately reported to Patient B that the male nurse had

touched her naval, and that Patient A had asked Patient B whether she had seen

this.

73. It is also apparent from the evidence that the Respondent had the opportunity to

engage in the acts alleged by Patient A. On 27 October 2012, the Respondent was

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the team leader. In this capacity, he was not paired with another nursing staff

member. The Respondent gave evidence that he was in the nurses’ station,

accompanied by two other RNs for the entire evening shift. The Committee

considers that it is very unlikely that the Respondent and two RNs would have

remained within the nurses’ station for the whole of the evening shift. The Committee

also observes that the clinical notes describe Patient A as having “opened a wound”

at some time before 8:40pm on 27 October 2012. The nurse who attended Patient A

in respect of this wound was an enrolled nurse. As the Respondent accepted, the

enrolled nurse should have notified the Respondent of Patient A’s wound. The

Respondent would have had an opportunity to attend upon Patient A alone in

response to that notification.

74. In his statement, the Respondent maintained that he worked closely with RN Patel

for the whole of the evening shift on 28 October 2012. This assertion was supported

by a statement of RN Patel dated 11 November 2012, in which RN Patel stated that:

“4s per my knowledge I was with Ronnie all the time excepts [sic] on my dinner

break and toileting times. On that day we were checking patients together all the

time. I haven’t seen any inappropriate behaviours from Ronnie towards any

other patients.” (emphasis in original)

75. However, as outlined above, on 28 October 2012, the Respondent was alone for

various periods, particularly during the period from 8:30pm until 9pm. From 8:30pm,

the Respondent acknowledged that he had left RN Patel in the recreation room, that

he had attended to washing up in the kitchen, that he collected a supper trolley from

the Closed Observation Ward, and that he went to the toilet.

76. Significantly, the Respondent is marked as having signed the patient checklist for

Patient A for both the 8:40pm and 9pm checks. As outlined above, the Respondent

denied having seen Patient A at the time that he made those observations. He said

that he ticked the observation sheet on the basis that RN Patel had “nodded” when

he asked if the checks had been done. The Respondent acknowledged that this was

“poor practice”.

77. A plan of the Pialla Unit was tendered in evidence before the Committee. Patient A’s

room was at the far end of the corridor. As the door nearest to Patient A’s room was

a locked door, there was little “through” traffic in the area. Whilst there was a risk of

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being seen by other patients whose beds were in this area, there was no need for

patients or other staff to travel through this area to attend the nurses’ station, dining

room, recreation room or the toilet.

78. On the other hand, as Ms Alexander pointed out on behalf of the Respondent, there

are inconsistencies in Patient A’s account. In particular, the account reported by

Patient A to some of the nursing staff on 30 and 31 October 2012 differs in not

insignificant respects to Patient A’s statement and evidence before this Committee.

In particular:

(a) Patient A told RN Lang and RN Egan that the Respondent had attended on her

three times over the course of two nights; whereas in her statement and initial

evidence before this Committee, Patient A described the events in question as

occurring during the one night;

(b) Patient A told RN Lang and RN Egan that the sequence of events on

27/28 October 2012 commenced shortly after she had attempted to self harm on

27 October. Patient A said that after this attempt, the Respondent attended on

her, and that this was when the Respondent touched her naval. No mention was

made of this event occurring after an attempt at self harm in her statement or

evidence before this Committee; and

(c) Patient A told RN Lang and RN Egan that the Respondent had kissed her down

her neck, whereas in her statement and initial evidence before this Committee,

Patient A described a short kiss on the lips.

79. Central to this matter is the creditability of each of the Respondent and Patient A. In

many respects, the Respondent’s evidence was less than satisfactory. The

Committee acknowledges that English is not the Respondent’s first language, and

that, on many occasions, the Respondent’s failure to properly answer simply

reflected his failure to understand the question that was being asked. The

Committee also considered that on other occasions, the Respondent appeared to be

attempting to guess at what he would have done (rather than giving evidence as to

what he had done), and that again, the Respondent’s failure in this respect may

reflect language difficulties.

80. However, on other occasions, the Respondent presented as attempting to mask his

actions on the day. For example, the Committee does not consider that the

Respondent’s insistence that he was accompanied at all times by at least one other

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registered nurse in the nurses’ station on 27 October 2012 to be credible. Similarly,

the Respondent was adamant that RN Patel was with him at “all times” (even going

so far as to say that he recalled RN Patel being with him on the unspecified date

when the Respondent saw Patient A dancing in the courtyard), yet in cross­

examination, it became evident there were significant periods of time on 28

October 2012 when RN Patel was not with him.

81. The Respondent was also adamant that he had had “no interaction” with Patient A at

all during her admission, although he later stated that he had performed a critical role

in saving Patient A’s life when she cut her brachial artery. Even putting the incident

concerning the brachial artery aside, the Committee considers that it is unlikely that

the Respondent would have had “no interaction” with one of the patients who had

been under his care for a period of some seven months.

82. On the other hand, Patient A presented as an intelligent witness who was doing her

best to provide a truthful account of what had occurred. In her evidence before the

Committee, she did not embellish her account of what happened (indeed, her

account was in many respects more conservative than the account that she gave at

the time). Patient A did not present as a person who was motivated by any ulterior

gain. She described the Respondent as a “very nice” nurse. She explained that the

Respondent had “done the wrong thing” and that was why she considered it her duty

to report his actions.

83. Whilst, as outlined above, there were some inconsistencies in Patient A’s account at

the time when compared to her evidence before the Committee, the Committee

considers that those differences can be explained by the effluxion of time. The

Committee also observes that the statements of RN Lang, RN Egan and RN

Sherwood containing an account of Patient A’s contemporaneous disclosures were

themselves made over a month after the conversations in question. In their evidence

before this Committee, neither RN Lang, RN Sherwood nor RN Egan had any

recollection of exactly what Patient A had told them over 30 - 31 October 2012.

84. The Committee bears firmly in mind the nature of these allegations. Whilst at the

lower end of objective seriousness (as reflected in the commencement of these

proceedings in a PSC rather than a Tribunal), they are allegations of a most serious

nature, which, if substantiated, will have substantial effects on the Respondent’s

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practise and reputation. However, having taken into account all the evidence and

relevant factors, the Committee makes the following conclusions:

(a) That Patient A presented as a very credible witness who had no reason that the

Committee could ascertain, to fabricate the allegations levelled against the

Respondent. While Patient A had lied in the past about matters relating to her own

medical circumstances, the Committee could find no evidence that she did so about

other people;

(b) In comparison, the Respondent presented as an evasive witness who was

attempting to mask his actions on the dates in question, and the extent of his

interactions with Patient A. In arriving at this conclusion the Committee took account

of the Respondent’s lack of English language skills;

(c) Patient A's account was corroborated, in part, by Patient B. Particularly

noteworthy to the Committee in accepting this evidence was: (1) the accuracy of the

description of the Respondent by Patient B; (2) the description of the conversations

described by Patient B align with the conversations as recounted by Patient A; and

(3) the lack of any motivation by Patient B to make false accusations about the

Respondent;

(d) On 27/28 October 2012, the Respondent had the opportunity to be alone with

Patient A; and

(e) Patient A's treating psychiatrist, Dr Brakoulias, presented information about

Patient A and her condition, which convinced the Committee that she had no

particular propensity to lie about the Respondent.

85. In view of the above, the Committee is comfortably satisfied that the evidence of

Patient A’s account was truthful, and that the Respondent’s account is not to be

accepted.

CONCLUSION

86. The Committee acknowledges that of the complaints, there is only corroboration for

the surrounding circumstances of particular 4(a). However, for the reasons outlined

above, the Committee is comfortably satisfied that the evidence of Patient A was

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truthful and that the Respondent’s account should not be accepted. Accordingly, the

Committee is comfortably satisfied that each of the incidents alleged by Patient A

occurred, and the Committee finds each of the particulars of the complaint proven.

87. As outlined above, it was accepted on behalf of the Respondent that if the complaint

was proved, it followed that the Respondent was guilty of unsatisfactory professional

conduct. The Committee agrees. The Respondent’s knowledge, skill or judgment

possessed, or care exercised, by him in the practice of his profession fell significantly

below the standard reasonably expected of a practitioner of an equivalent level of

training or experience. Moreover, the Respondent’s conduct was both improper and

unethical within the meaning of s. 139B(1)(l) of the National Law.

CONSEQUENTIAL ORDERS

Relevant principles

88. As the Committee is of the view that the HCCC has made out the complaint and that

the Respondent is guilty of unsatisfactory professional conduct within the meaning of

s. 139B(1) of the National Law, it is appropriate to proceed to a consideration of the

orders that should be made.

89. The Committee’s powers on proof of a complaint are set out in s. 146B of the

National Law. In determining appropriate consequential orders, the Committee is

required to consider the whole of the Respondent’s conduct: Gad v HCCC [2002]

NSWCA 111 at [55].

90. It must be borne in mind that the jurisdiction of the Committee is protective rather

than punitive. The protective role of the Committee extends to the maintenance of

public confidence in the profession and maintenance of the reputation of the

profession: HCCC v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630; HCCC v

Do [2014] NSWCA 307 at [35] - [36]. Orders of the Committee may operate to have a

general deterrent effect, both for the Respondent and for other members of the

profession.

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Appropriate orders

91. Both parties agreed that if a finding of unsatisfactory professional conduct was made,

it would be appropriate for the Respondent to be reprimanded.

92. The conduct of the Respondent was of a serious nature. Patient A’s circumstances

as a patient suffering from Borderline Personality Disorder within a mental health

facility placed her in a position of particular vulnerability. The Respondent has

breached his ethical responsibilities and abused the trust residing in him as a

member of the nursing profession. He has shown no insight and no remorse for his

actions.

93. The Committee agrees that, in order for the public to be protected, it is appropriate

for the Respondent to be prohibited from working in a mental health facility; to be

subject to mentoring conditions; and for his employers to be made aware of these

conditions.

THE COMMITTEE ORDERS:

The practitioner is hereby reprimanded.

The practitioner’s registration be subject to the following conditions:

1. The registrant cannot work as a nurse in a mental health facility or mental health department whether in a public or private setting;

2. The registrant must enrol in an ethical training program such as the tailor made training program conducted by Davaar consultancy or an equivalent program as approved by the Nursing and Midwifery Council within three (3) months of the decision;

3. The registrant must successfully complete an ethical training program such as the tailor made training program conducted by Davaar consultancy or an equivalent program as approved by the Nursing and Midwifery Council within six (6) months of the decision;

4. Any cost of the program is to be met by the registrant;

5. The registrant must engage in a mentoring relationship for a period of at least 12 months with a registered nurse (Division 1) who does not have conditions on his/her practice. The registered nurse mentor must be approved by the Nursing and Midwifery Council of NSW. Any cost of the mentoring relationship must be met by the registrant;

6. The registrant must:

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(a) Provide the Nursing and Midwifery Council of NSW with the name, contact details and resume of the registered nurse who has agreed to act as a mentor and as specified in these conditions;

(b) Authorise the mentor:

(i) To notify the Council of any breach of the conditions including repeated failure to attend mentoring meetings;

(ii) To exchange information with the Council in relation to the registrant’s compliance with the conditions;

(iii) To provide to the Council a copy of the Nursing and Midwifery Professional Standards Committee decision, including orders made, that has been signed by the registrant and by the mentor indicating awareness of the decision and orders.

7. The registrant must submit a mentoring plan developed in consultation with the mentor within 4 weeks of the mentor being approved by the Nursing and Midwifery Council of NSW. The plan must detail:

(a) Specific objectives/ outcomes of the mentoring relationship. The objectives/ outcomes must relate to, but are not limited to, the area of professional boundaries;

(b) Specific education, professional development and learning activities planned to achieve the specified objectives/ outcomes;

(c) Timeframe/s for completion of identified activities and outcomes/ objectives;

(d) Evidence which will demonstrate objectives/ outcomes have been met;

(e) Schedule of meetings with the mentor.

8. The registrant must provide to the Nursing and Midwifery Council of NSW a mentoring report which is co-signed by the approved mentor addressing:

(a) Progress towards or achievement of specified outcomes/ objectives;

(b) Any challenges/ issues affecting progress and a plan to deal with these;

(c) Any challenges to practice resulting from mentoring/ associated learning.

9. The mentoring report must be provided to the Nursing and Midwifery Council of NSW every 2 months for at least 12 months.

10. The registrant must:

(a) Provide the Nursing and Midwifery Council of NSW with the name and contact details of all nursing employers (including agency placements) prior to commencing work.

(b) Authorise each nursing employer:

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(i) To notify the Nursing and Midwifery Council of NSW of any breach of the conditions or unsafe practice; and

(ii) To exchange information with the Council related to compliance with conditions.

(c) Inform all current and any future employers of the conditions before commencing work/ employment as a registered nurse.

(d) Provide to the Nursing and Midwifery Council of NSW a copy of the conditions signed by the registrant and by, or on behalf of, each employer indicating awareness of the conditions and authorisation within one week of commencing work.

11. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply should the practitioner’s principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board.

12. The Nursing and Midwifery Council of NSW is the appropriate review body for the purposes of ss. 163-163C of the Health Practitioner Regulation National Law (NSW) where the practitioner’s principal place of practice is in NSW.

PUBLICATION

A copy of this Reasons for Decision document is to be forwarded by the Registry to:

1) The Respondent,

2) The HCCC,

3) The Nursing and Midwifery Council of NSW,

4) The NSW presence of the NMBA via AHPRA (NSW Office),

5) The Nepean Hospital, and

6) As the Councils and Boards see fit.

Belinda Baker

Chairperson

22 October 2015

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