Summary

The South Australian Health Practitioner's Tribunal has reprimanded a nurse for professional misconduct and disqualified him from applying for re-registration for two years for his improper relationship with the spouse of a patient.1

Background

In Nursing and Midwifery Board of Australia v Barnes [2017], Mr Barnes, an enrolled nurse, worked at Hampstead Rehabilitation Centre (HRC) where he provided inpatient nursing services to the patient. The patient was a paraplegic and had been admitted to HRC spinal unit in November 2009.

From December 2010, Mr Barnes developed an improper sexual relationship with the patient's wife, Mrs X. The relationship between Mr Barnes and Mrs X continued for the duration of the patient's stay at HRC and continued after the patient was discharged home in January 2011.

In March 2012, Mrs X ended her marriage with the patient and commenced living with Mr Barnes.

AHPRA notified of unprofessional behaviour

In June 2012, the patient notified AHPRA of Mr Barnes and Mrs X's relationship. In response to the patient allegations, Mr Barnes emphatically denied any inappropriate, illegal or unprofessional behaviour towards the patient or Mrs X. He maintained that his relationship with Mrs X had only commenced in January 2012, some twelve months after the patient's discharge from HRC.

Mrs X submitted a letter to AHPRA in support of Mr Barnes, claiming that their relationship commenced after the patient was discharged from HRC.

AHPRA investigation

At the completion of AHPRA's investigation, documentary evidence, including mobile phone records and photographic material, were obtained from Mrs X's home computer. It was established that Mr Barnes and Mrs X's responses to AHPRA were fabricated. Mr Barnes subsequently admitted that he had engaged in an improper sexual relationship with Mrs X commencing from December 2010, when the patient was receiving inpatient nursing services from him at HRC.

Behaviour constituted professional misconduct

In July 2017, the Nursing and Midwifery Board of Australia (the Board) referred the patient's allegations against Mr Barnes to the South Australian Health Practitioners Tribunal (Tribunal). The Board submitted that Mr Barnes' behaviour constituted professional misconduct as he had engaged in an improper sexual relationship with the spouse of a patient whilst he provided inpatient nursing services in the course of his employment as an enrolled nurse at HRC.

The Board submitted that:

  1. under the Code of Professional Conduct for Nurses in Australia, Mr Barnes had a responsibility to maintain a professional boundary between himself, the patient and other persons such as the patient's family and partner; and
  2. an appropriate sanction against Mr Barnes was a two year suspension.

The Board referred the Tribunal to Honey v Medical Practitioners Board of Victoria2 and HealthCare Complaints Commissioner v Litchfield,3 where it was considered that each case must be determined on the gravity of the departure from the standard of the profession.

The Tribunal, in reaching its decision, considered whether consent was an acceptable defence in the case of sexual or intimate behaviour and also Mr Barnes' actions to actively conceal the truth from AHPRA.

The Tribunal's decision

The Tribunal was of the opinion that consent was not an acceptable defence and held that Mr Barnes had engaged in professional misconduct. By way of a unanimous decision, the Tribunal held that Mr Barnes' conduct was a grave departure from the standards expected of a professional nurse.

The Tribunal emphasised that it wanted to send a message to the public that it strongly disapproved of such misconduct. It disagreed with the Board's request for a two year suspension and held that a suspension would indicate a confidence in Mr Barnes' future ability to practice once the suspension period was served.

The Tribunal therefore held that de-registration for a period of two years was appropriate to protect the public and act as a deterrent.

Take home reminders for health practitioners

This case highlights the inherent power imbalance in the relationship between vulnerable patients, their families and practitioners providing care.

The Tribunal's decision emphasises the need for practitioners to maintain professional boundaries with patients, and that these boundaries extend to partners, family members, and others involved in a patient's care.

Finally, the decision also demonstrates the serious ramification for practitioners should they be found to have mislead AHPRA and/or their relevant professional board.