The NSW Civil and Administrative Tribunal (Tribunal) has disqualified a registered nurse from providing health services and cancelled his registration for a period of one year.

The nurse, Mr Hudson was practising in mental health care, when he engaged in professional misconduct by maintaining a sexual relationship with a former patient. Mr Hudson also had a history of substance abuse and had previously suffered psychotic episodes.

Background Facts

The Health Care Complaints Commission made three complaints relating to Mr Hudson's practice as a registered nurse in a Mental Health Inpatient Unit. The first complaint related to allegations of unsatisfactory professional conduct. Patient A was admitted to the Mental Health Inpatient Unit on five occasions between 2013 and 2015. On two occasions, Patient A was under the direct care of Mr Hudson during 2013 and 2015.

In 2016, Patient A approached Mr Hudson outside the hospital. The pair exchanged numbers and soon after commenced a sexual relationship. The relationship lasted 4-6 weeks, and involved Mr Hudson supplying cannabis to Patient A, and using it in her presence.

The second complaint was that the conduct described above amounted to professional misconduct.

The third complaint was that by virtue of his cannabis use, in conjunction with a substance induced psychotic disorder or recurrent psychotic disorder, Mr Hudson had an impairment within the meaning of section 5 of the National Law.

Mr Hudson's alleged impairment related to his own mental health. Mr Hudson had been hospitalised five times in the past ten years due to psychosis. The most recent admission was unrelated to cannabis use, suggesting that the psychotic disorder was independent of drug use. In mid-2016, Mr Hudson was smoking up to ten cones of cannabis per day.

In early 2017, when admitted to hospital following a psychotic episode, Mr Hudson told another practitioner about his relationship with A, and a mandatory notification was made to AHPRA. Following his discharge, Mr Hudson self-notified to AHPRA.

Issues

The issues facing the Tribunal were:

  • whether the conduct amount to misconduct;
  • the nature and extent of the practitioner's impairment; and
  • appropriate protective orders.

Findings

As to the first issue, the Tribunal found that it would be a rare instance where the Tribunal found that a sexual relationship between a mental health practitioner and a current of former patient did not amount to misconduct, by reason of the extreme power imbalance inherent in such a relationship.

Here, it was irrelevant that some months had passed since Patient A was under Mr Hudson's care. Mr Hudson was aware of Patient A's history, and should have recognised her vulnerability and that the relationship was not appropriate.

As to Mr Hudson's impairment, the evidence about Mr Hudson's mental health was inconsistent. A single diagnosis was not made. Opinions ranged from that Mr Hudson's mental health was well managed, another view was that closer, clinical management was required.

The Tribunal accepted the opinion of Dr Parsonage, the expert called by the Commission, which indicated Mr Hudson's mental health, though currently stable, was fragile and required close supervision by a psychiatrist.

Mr Hudson did not dispute his cannabis use, psychotic episodes or the relationship with patient A. The only divergence in the evidence related to Mr Hudson's mental health status and whether his cannabis use had impacted on his professional conduct. The Tribunal found that the excessive use meant that there could be little to no doubt that cannabis use impacted on his practice.

Taking into account the impact the impairment had on Mr Hudson's practice, the professional misconduct and impairment, the Tribunal found the only appropriate order was deregistration. Mr Hudson was prohibited from practising health care for one year.

Orders

The Tribunal stated that had Mr Hudson still been a registered nurse, it would have cancelled its registration. The Tribunal then ordered that Mr Hudson is disqualified from being registered as a nurse and prohibited from providing health services for a period of 1 year from the date of this decision.

The usual order for costs was varied in light of Mr Hudson's early admissions and the fact that the case was hampered the lack of a current independent assessment of Mr Hudson's mental health.