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Decision 08HDC18422
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Names have been removed (except
Auckland DHB) to protect privacy. Identifying letters are assigned
in alphabetical order and bear no relationship to the person's
actual name.
Psychiatric Nurse, Mr U
Auckland District Health Board
A Report by the Deputy Health and Disability Commissioner
Investigation Summary
Complaint
The Nursing Council referred concerns about psychiatric nurse Mr
U to our Office in early December 2006. The concerns related to Mr
U's unprofessional conduct towards Ms A during her hospital
admission to an Auckland District Health Board (ADHB) mental health
unit, and as an ex-patient after discharge. The Nursing Council
viewed Mr U as a risk to public safety.
Investigation process
On 16 February 2007, an investigation was commenced into whether
registered nurse Mr U provided services to Ms A in accordance with
professional and ethical standards in July/August 2006, during
which period it is alleged Mr U initiated a sexual relationship
with Ms A. Also investigated was the appropriateness of care
provided by Auckland District Health Board to Ms A in July/August
2006.
A considerable number of parties are involved in this complaint
- see Appendix 1. Information from all parties was
gathered and considered. This report outlines the various
standards, including the Code of Health and Disability Services
Consumers' Rights (see Appendix 2) that are relevant when
determining whether or not an individual or an organisation has met
accepted standards of practice.
Commissioner's report
The purpose of the report is to set out the information received
from the various parties, and to determine whether or not there has
been a breach of the Code of Health and Disability Services
Consumers' Rights (the Code).
The provisional report concluded that Mr U did breach the Code
and that Auckland District Health Board was not vicariously liable
for his actions. However, comment was made about the reference
provided to Mr U when he resigned from ADHB, as it made no mention
of the concerns about his practice. The report recommended that
ADHB address the appropriateness of providing references in these
circumstances.
The parties were invited to respond to the findings.
Conclusion
In his response to the provisional report, Mr U admitted a
sexual relationship with Ms A. The Director of Proceedings has been
asked to review the case and consider taking proceedings against Mr
U.
Overview
Ms A has been involved in psychiatric services since
mid-adolescence. She is described by staff who have cared for her
as a "very vulnerable person".
Several internal complaints were made by Mr U's colleagues in
relation to his non-observance of standard practices aimed at
protecting vulnerable female patients such as Ms A. One colleague
claimed that Mr U had told him that he was having a sexual
relationship with Ms A. This allegation was supported by Ms A. Mr U
initially denied having had a sexual relationship with Ms A but
admitted that he became too involved in her care.
Mr U resigned from his position following an internal
investigation into his conduct. ADHB advised that the concerns
related to both Mr U's state of mind and his competence. It is not
clear from the documentation provided by ADHB whether a decision
was made relating to the allegations about Mr U's relationship with
Ms A. Mr U was required to undertake a six-week supervision process
and was instructed to have no further contact with Ms A. These
requirements were not met.
Issues such as sexual misconduct are often difficult to prove
when it is one person's word against another's, and there is little
or no evidence to support the allegation. In this case, Mr U has
confirmed that he did have a sexual relationship with Ms A. A
health professional has an obligation to his or her clients to
provide a service that minimises potential harm and optimises the
client's quality of life. It is therefore important to maintain
professional boundaries.
Mr U failed to maintain appropriate professional boundaries and
cultivated a relationship with Ms A that jeopardised her mental and
physical well-being.
Investigation - Mr U
Mr U's Background and Qualifications
Mr U completed his Bachelor of Nursing in 1998. He was employed
at Auckland Hospital's acute mental health unit (the Unit) from
December 2003 until 10 December 2006. He advised that he was
"generally aware" of a registered nurse's responsibilities in
relation to the Health Practitioner's Competence Assurance Act 2003
and the Mental Health Nursing Standards. Mr U stated that the roles
and responsibilities of health professionals working at the Unit
were drafted in "about 1997". Mr U said that during the period he
worked at the Unit, this document remained in draft. He was aware
that the registered nurses' responsibilities were also outlined in
the Mental Health Nursing Standards and that he was "generally
aware of the legislation due to his involvement as a union
representative."
Mr U stated that his understanding of the responsibilities of a
registered nurse working at the Unit are to:
"
- Work in partnership with the consumer (i.e. the patient).
- Formulate and participate in strong collaborative care planning
centred on the consumer's needs. This involves the nurse dealing
with other professionals i.e. nurses, doctors, specialists, social
workers, occupational trainers and the like, not to mention the
consumer.
- Administer medication to consumers as prescribed by qualified
medical staff.
- Observe and monitor psychiatric signs and symptoms.
- Document these symptoms and report any changes in mental state
that are observed. These reports are done both orally and in
writing. There is a requirement to provide written reports at the
end of each shift in relation to each consumer who is the subject
of care.
- Formulate ongoing management plans in relation to consumer
care. This covers in-patient care, multi-disciplinary care and
planned discharge for a return to the community as
appropriate.
The emphasis in the discharge of responsibilities differs
depending upon where one is employed within the unit. For instance,
when one is employed at ICU (Intensive Care Unit) the focus is very
much on containment of the acute phase of the diagnosed mental
illness and settling mood and symptoms to enable the consumer to
become more comfortable. S/he can then be transferred to a less
secure environment safely. This would involve transfer to one or
two open wards within the unit."
Admission to the Unit 30 June 2006
On 30 June 2006, Ms A was admitted acutely to the ICU of the
Unit. She was suffering from extreme anxiety, exhibiting distress
and agitation, and had considerable difficulty sleeping. Staff
managed her anxiety with counselling and medication. Ms A was
prescribed antipsychotic and anti-anxiety medications, a sedative
and an antihypertensive.
During this admission, a treatment plan was formulated for Ms A
by the Unit's Clinical Director, psychiatrist Dr C, psychiatrist Ms
G and psychologist Ms D. Dr C noted their plan to move Ms A from
the ICU to a ward. Ms A was to take responsibility for her own
safety. He noted, "any attempts on our part to take on the role of
'keeping [Ms A] safe' significantly increases her risk of suicide".
The plan was that Ms A was not to rely on admission to the Unit to
control her extreme anxiety, but should utilise distraction
techniques. If Ms A self-harmed or attempted suicide while an
inpatient, she was to be discharged immediately. Dr C discussed his
decision with Ms A.
During the night of 3 July, a male patient entered Ms A's room,
exposed himself and made sexual comments. Ms A was extremely upset
by the incident. However, Dr C decided to discharge her the
following day and arranged for her to see Ms D at an Auckland
District Health Board mental health community support service (the
community support service) as soon as she was discharged. Dr C told
Ms A that she needed to rebuild her relationship with Ms D and her
supports in the community. Ms A was discharged from the Unit on 5
July.
Re-admission on 17 July 2006
On 17 July, Ms A was readmitted to the Unit because of increased
concerns for her safety.
The next day, Ms A was found semi-conscious in her room in the
ward. Staff suspected that she had attempted to asphyxiate herself.
The senior staff member on duty discussed the incident with Dr C,
who directed that, in line with the treatment plan devised for Ms A
(which she had agreed to) she was to be discharged immediately.
However, after grave concern for Ms A's safety was expressed by a
family member, it was agreed that she should stay in hospital.
During the afternoon of 19 July, Mr U recorded in Ms A's
clinical records that he had entered her room, woken her and taken
her to the ward smoking area for a cigarette and an "informal
debrief". In doing so, Mr U took no account of accepted practice at
the Unit in relation to patients with Ms A's diagnosis, who are to
be cared for by experienced female staff members, or that only
female staff were to enter female patients' rooms.
Mr U recorded his conversation with Ms A - that she denied
having self-harmed the previous day. He recorded his support of Ms
A's wish to remain in the unit and suggested an alternative therapy
approach to that devised by Dr C. Mr U explained that his reason
for entering Ms A's room and waking her that afternoon was
"precautionary" because he was concerned that her blood pressure,
which was affected by one of the medications she was taking, had
not been taken during the earlier shift. Mr U recorded Ms A's blood
pressure as being 95/65 mmHg.[1]
Mr U said that he did not take a female staff member with him
because there was no guideline requiring him to do so. Later that
shift Mr U made a further note in Ms A's record in which he was
critical of the clinicians' treatment plan for Ms A and that she
was "accepting of writer's rationale". He suggested that Ms A would
"benefit from DBT[2] as [Ms A] needs
tools/strategies that she can self-implement when feeling in
crisis, and so become proficient in managing own crises instead of
having her alters[3] be the focus of her
therapy".
Ms A stated that she knew Mr U from a previous admission, but
his attitude towards her during this admission was different. He
seemed to take an interest in her and talked a lot about having a
friendship and doing "fun things" together.
Massage incident 19 July
On the night shift for 19/20 July, Mr U and team support worker
Ms K were assigned to work on the ward. Bureau nurse Ms L was also
assigned to the ward that night. It was a quiet night and, after Ms
K and Ms L finished their routine tasks, they adjourned to the ward
office to watch a DVD Ms K had brought in.
Mr U brought Ms A into the room. He told them that Ms A was not
able to sleep so he had brought her to watch the DVD. Ms K and Ms L
were surprised by Mr U's action in bringing Ms A into the ward
office - something that is not allowed. Both Ms K and Ms L stated
that when Ms A sat down, Mr U lifted her legs onto another chair
and began to massage her legs with oil. They felt very
uncomfortable about Mr U's actions but did not challenge him. The
massage continued for about half an hour, but Ms A continued to be
agitated and Mr U took her back to her room. Ms K stated that it is
common for staff at the Unit to use foot baths and massage to
manage anxiety and mood, but she had never seen staff massage a
patient's legs.
When Ms L and Ms K did their rounds to check the patients they
saw Mr U sitting on a chair beside Ms A's bed, reading a book.
Later he was sitting outside her room. He stayed there until about
6am.
Mr U stated that he massaged Ms A's ankles and calves "briefly"
as she was complaining about akathesia.[4] He
said that the massage relieved the problem. Mr U noted in Ms A's
clinical record that he had massaged her legs to relieve her
anxiety, which arose from "unwelcome sexual advances" from two of
the male patients. He noted that he offered to sit outside her room
and play music to reassure her so that she could sleep.
On 20 July, Dr C recorded in Ms A's notes: "Females only to
nurse [Ms A]."
On the afternoon shift of 20 July, staff nurse Ms M spent some
time trying to calm Ms A and settle her in bed. However, later in
the shift, while doing a ward round to check on the patients with
team support worker Ms O, she was surprised to find Ms A up and
dressed and applying makeup. Ms M stepped outside the room and
expressed her surprise to Ms O, who responded, "She's getting ready
for the night shift." Ms O told her about the massage incident of
the previous night. Ms M advised Ms O to report the matter to
Charge Nurse Ms N.
Night shift 20/21 July
On the night shift for 20/21 July, staff nurse Mr J was the
senior staff member on duty with Mr U and an unqualified staff
member. Mr U told Mr J that he had spent time in Ms A's room
the night before talking and counselling her to get her to settle.
Mr J told Mr U that it was not appropriate for him to be in Ms A's
room. Mr J arranged for a female staff member to settle Ms A. He
said that Mr U "reluctantly accepted" the direction that he was not
to go into Ms A's room.
Ms A was discharged on 21 July 2006.
Concerns raised about Mr U
On 24 July, Dr G emailed Ms N and the Unit Manager Ms P
regarding her concerns about Mr U's relationship with Ms A. Dr G
stated that Mr U's "self-documented descriptions of his activities
raise what are for me very serious concerns". She stated:
"I am very seriously concerned about
such disregard of appropriate boundaries in someone who is
struggling with ongoing abuse, unable to maintain boundaries for
herself, and extremely vulnerable to intrusion and manipulation. I
think there is reason to be concerned that her boundaries may be
violated further, even outside the hospital."
When Ms N returned from study leave on 24 July 2006, Mr J
reported to her his concerns about Mr U's practice in relation to
Ms A. As part of her enquiry into Mr J's concerns, Ms N spoke to Ms
L and Ms K.
On 25 July, Dr C wrote to the the Unit management also
expressing concerns about Mr U's practice:
"[Mr U's] judgement, in my opinion,
is impaired. He appears to be poorly boundaried both in his
clinical interventions with this most vulnerable service user and
in his clinical documentation. I frankly am concerned about [Mr
U's] motivations as well as his clinical competence …"
A summary of Dr C's concerns are attached as Appendix
3.
Ex-patient August/September 2006
Ms A cannot recall exactly how the relationship between herself
and Mr U developed after she left the Unit. She said that she
thought he sent her text messages. She cannot recall giving him her
telephone number. Ms A stated, "It's a kind of a blur to be honest,
coz, you know when I'm sick I'm on a high dosage of medication and
it affects my memory. … The first time ... I can remember, he was
around at my flat and he was saying how hard it was for him not to
have it become sexual."
The community support service 14 August 2006
Ms D stated that when she saw Ms A at the community support
service on 14 August, she was "unreasonably happy". (Ms D was aware
that there had been rumours circulating about Mr U's involvement
with Ms A at the Unit.) Ms D recorded the meeting, noting that Ms A
was smiling a lot, which was unusual. Ms D considered that Ms A
might be taking drugs. However, Ms A denied this and said that
there was "someone new in her life". Ms A told Ms D that she was
feeling safe in this relationship and she was limiting her contact
with her new boyfriend to twice weekly. Ms A agreed to inform Ms D
if she felt unsafe.
Disclosure 25 August 2006
On 25 August 2006, team support worker Mr Q attended a staff
party. At one point in the evening he went outside for a cigarette
with Mr U. Mr U told Mr Q that he was having a relationship with Ms
A. Mr Q said, "I didn't know what to say." Mr U told him that he
had been "crashing [at] her place" and that she was "good in bed".
Mr U told him that he wanted to get Ms A "out of the mental health
system and that he was going to help her do this and look after
her". Mr Q said he was "really shocked" by Mr U's disclosure.
Mr U denied that he made any such comments to Mr Q. Mr U,
however, acknowledges that he did say "it would be nice to have a
relationship with someone like [Ms A] in different circumstances
i.e. had she not been a patient".
Mr U stated that he does not know why Mr Q would make the
allegations or his motivation in attributing those comments to him.
Mr U then went on to allege that Mr Q had in fact made
inappropriate comments about Ms A. Mr U acknowledged that making
such an allegation "might be misconstrued as an attempt to deflect
blame from himself".
Counselling appointment 28 August 2006
On 28 August, Ms D saw Ms A again. She noted that Ms A was to
have had a pregnancy test, but had not done so as she was "still
avoiding finding out if she was pregnant". Ms A told Ms D that she
was "not having so much to do with her 'new boyfriend' at the
moment because she is not feeling up to it". An appointment was
made for Ms A to be seen the next day at a psychotherapy
service.
Counselling appointment 8 September 2006
On 8 September, Ms D met with Ms A again. Dr G was also present
and she and Ms D talked to Ms A about her lack of participation in
the therapeutic relationship. Ms D told Ms A that there was an
"elephant in the room" - a significant issue that was being
avoided. Ms A told Ms D that she was feeling guilty about not
telling her about Mr U. He had asked her to keep their relationship
a secret. Mr U told Ms A that if it became known he could lose his
job. Ms A told Ms D that she did not want to be responsible for Mr
U losing his job. Ms A said she felt "trapped" because she did not
like lying to Ms D and it made her therapy "quite hard because
there was something, like this lie there, that I had to tell". Ms D
recorded that Ms A was able to recognise the impact on the
relationship of keeping secrets and "noticed immediately feeling
more connected after discussing the 'elephant'".
Counselling appointment 25 September 2006
On 25 September, Ms A was very distressed when she saw Ms D for
her routine therapy session. The content of the session focussed
mainly around family issues, but she was also feeling angry and
hurt about Mr U's behaviour towards her. She believed their
relationship was "all about his needs", and that Mr U was only
"using her for sex". Ms A found it hard to resist Mr U's approaches
because she believed that this was all men had ever wanted from
her. She said that Mr U promised to take her to "nice places" but
he only came to see her when he wanted sex.
Ms A's contact with Mr U in 2007
Ms A recalls that she found out that Mr U was under
investigation because of his relationship with her, when he sent
her a text message and asked her to support him. Ms A was unable to
recall the date she received his text.
Psychologist appointment 20 February
On 20 February 2007, Ms A attended an appointment with a
psychologist, who noted that Ms A "had sex with [Mr U] approx two
weeks ago and he hasn't contacted her since. She feels 'stupid',
shamed and used and her capacity to trust people has further
decreased."
Text Messages from Mr U 14 March
On 14 March 2007, Mr U sent Ms A a series of text messages. The
first text message sent at 1.36pm read:
"Fwd: Am close 2 stepin off tall
building, not sure I can do this all again."
At 1.39pm:
"Fwd: Am bein investigated by health
n disability comision 4 rship wiv u. need ur support or i am
toast."
At 1.46pm
"Fwd: Hi need 2 talk, urgent."
Deputy Commissioner's Findings - Mr U
Ms A was entitled to be free from sexual exploitation and be
provided with services that complied with legal, professional,
ethical, and other relevant standards. A health professional has an
obligation to his or her clients to provide a service that
minimises potential harm and optimises their quality of life.
In the context of this case, Mr U, as a registered nurse, was
required to respect the boundaries of a professional relationship
with Ms A. As the Commissioner stated in Opinion 04HDC05983:
"When [a health care provider] has a
professional relationship with a client, especially a client with
mental health needs, he or she must take extreme care to establish
and maintain the boundaries of that relationship. A breach of
professional boundaries is a breach of trust and can result in
physical and/or emotional harm to the client."
Professional and ethical boundaries
There is no question that Ms A was a vulnerable client. She was
diagnosed with Disassociative Identity Disorder and had been
involved in psychiatric services since mid-adolescence for
treatment for self-harm and ongoing sexual abuse. Ms A was
considered by her clinicians to be "unboundaried" and extremely
vulnerable to intrusion and manipulation. In a recent HDC
Opinion,[5] registered counsellor
Anita Bocchino commented on the vulnerability of sexually
abused clients:
"It is not at all unusual, and in
fact, expected that such survivors of sexual abuse are more likely
to form revictimising relationships and partnerships, … [and] will
re-enact their early environments of victimisation."
The Unit's practice in relation to the management of patients
like Ms A is that only experienced female staff were to accompany
female patients with this history, in their rooms. Other staff
involved in Ms A's care were aware of this practice and complied
with it. The need to maintain professional boundaries was clearly
set out in the ADHB policy "Guidelines for Safe Practice -
Professional Relationships" - see Appendix 4, which states
that "social contact and friendships between staff and patients are
to be avoided" and that "sexual behaviour or sexual contact between
staff and patients is … prohibited". The policy also stipulates
that staff are to refrain from "undue familiarity", and are only to
visit patients at their homes on "work related business".
During the time that Ms A was a patient at the Unit, Mr U
cultivated a relationship with her. Mr U made opportunities to have
contact with Ms A in a manner that overstepped professional
boundaries as follows:
- On 19 July 2006, he entered her room and woke her to take her
blood pressure, despite her known sleeping difficulties. Mr U's
explanation for this was that he was acting in a "precautionary
manner".
- Although Mr U should have been aware of the practice that only
female staff were to enter the rooms of female patients, he did not
take a female member of staff with him when he entered Ms A's room.
Mr U believed there was no guideline that required him to do
so.
- He noted in Ms A's clinical record that he also took the
"opportunity for an informal debrief", recording his discussion
with her about his concerns regarding her treatment management and
that Ms A accepted his opinion.
- During the night shift 19/20 July Mr U took Ms A to the nurses'
ward office where he massaged her legs for a period of time.
Patients are not allowed in the ward office. He spent the remainder
of the night either inside Ms A's room, or sitting outside the
door. He said that he did so because she was "unable to sleep in
room, feelings of fear/anxiety of persons entering the room".
- On 20 July, Dr C recorded in Ms A's notes: "Females only to
nurse [Ms A]". Mr J told Mr U on the nightshift for 20/21 July that
it was not appropriate for him to be in Ms A's room. Mr J
arranged for a female staff member to come to settle Ms A. He said
that Mr U "reluctantly accepted" the direction that he was not to
go into Ms A's room.
- Mr U created opportunities for Ms A to talk about her fears,
and for him to discuss with her his own therapy rationale, which
was contrary to those designed by Ms A's psychiatrists, to
encourage her to be less reliant on the hospital system.
In my view, Mr U's approaches to Ms A while she was an inpatient
at the Unit were designed to alienate her from the team authorised
to treat her, in order to enhance his influence over her.
Ms A is unable to recall how contact between herself and Mr U
was established after her discharge from the Unit. However,
on 8 September, when Ms A met with Ms D and psychiatrist Dr G at
the community support service, she told them that she had kept
secret her relationship with Mr U. Ms A said that she was feeling
guilty about keeping the secret but Mr U had told her that he would
lose his job if it became known.
The importance of maintaining professional boundaries in such
situations, clearly set out in nursing ethical standards, has been
recognised in other cases. In a recent report,[6] registered
psychiatric nurse Ms Clarissa Broderick provided expert advice and
made the following general comments about professional
boundaries:
"Implicit in Mental Health Nursing
is the need to appreciate the boundaries of the nurse client
relationship … It is usual for nurses to 'like' their clients
within the context of the professional relationship. However the
nurse has the responsibility to recognize the significant power
imbalance that exists within the therapeutic relationship. The
dynamics of a relationship that involve disclosure on the client's
part, and empathy and understanding from the nurse, can arouse
strong emotions for the client and feelings of dependence. To take
advantage of these emotions, to form a 'friendship', intentionally
or not, is unethical and exploitative …
Nurses know it is not acceptable to
accept invitations to meet socially with clients or ex-clients, nor
is it acceptable to exchange phone numbers. It is a breach of the
Nursing Council of New Zealand's Code of Conduct, and a significant
departure from what would be considered acceptable."
On 14 March 2007, Mr U sent Ms A three text messages to tell her
that he was under investigation by the Office of the Health and
Disability Commissioner because of his relationship with her. He
stated that he was "close 2 steppin off tall building", and that he
needed her support "or I am toast". Mr U's text messages were a
further attempt to coerce and manipulate a young woman to collude
with his behaviour, which he knew was a serious departure from
professional standards.
Sexual relationship
The information gathered during this investigation corroborates
Ms A's allegation that Mr U engaged in a sexual relationship with
her. Mr Q, Ms D and Dr G have confirmed that they knew of the
relationship at the time, and there are no significant
inconsistencies in the information provided by them.
Mr U acknowledged that he spoke to Ms A on the telephone,
accompanied her for walks on the beach and took her for coffee. He
denied that he had a sexual or inappropriate intimate relationship
with Ms A. However, information has been gathered that conflicts
with Mr U's statement:
- On 25 August 2006, Mr U told Mr Q that he was having a
relationship with Ms A and that he had been "crashing her place"
and she was "good in bed."
- On 8 September Ms A told Ms D and Dr G that she felt guilty
about keeping secret her relationship with Mr U. The only reason
she kept the secret was because he told her that he would lose his
job if their relationship became known.
- Ms A was consistent in her disclosures about the nature of the
relationship. She said her meetings with Mr U at his home were
"mainly about sex." In August 2006, Ms A avoided taking a pregnancy
test against the advice of her psychologist because she was
concerned that she might be pregnant to Mr U.
- In March 2007 Mr U sent Ms A a series of text messages to tell
her that he was being investigated in relation to his relationship
with her. The text messages indicated that he was extremely
distressed and asked her to support him.
Mr U accepts that his behaviour in relation to Ms A was
"unusual" and outside his normal practice. Mr U explained that he
"was going through a very stressful period with a marriage break-up
after 10 years of marriage and two children" and that "at the time
his judgement may have been impaired by personal problems arising
from the marriage break-up". Mr U believed that "he found it quite
difficult to leave work at work, and his personal problems at
home".
Mr U believed that Ms A was a "person who needed support and
help" and he had "concerns" about the treatment she was receiving.
Mr U stated that Dr C "seemed adept at improvising as opposed to
being pro-active and/or having a clear multi-disciplinary approach
to the care necessary to treat Ms A for her medical condition". Mr
U was concerned about the "pseudo-parenting behaviour" of Dr C and
Dr G towards Ms A and made a number of other criticisms regarding
Ms A's treatment.
Mr U stated that Tikanga Best Practice (Mental Health)
Implementation is a way of working that has been adopted across the
ADHB but resisted within the Unit. He believes it is a way of
working that is underpinned by Te Ao Māori (Māori world) health
paradigms that enables recovery of the individual and their whānau
(family) whether they are Māori or by non-Māori.
Mr U stated that his attempts to implement Tikanga Best Practice
have led to his troubles. He said that it is his "perceived right
under the Treaty of Waitangi to assert my own right to tino
rangatiratanga"[7] and it is his willingness
to be involved and participate "at all levels is where I most
threaten". Mr U believes he "threatens the status quo" because he
is outspoken and believes that his heritage and his views are "why
I seem to attract so much flak". He believes "most of my troubles"
arise from his attempts to implement Tikanga Best Practice (Mental
Health) which was "simply an anathema to the resident lesbian
feminists" and, the "lesbian feminist theory underpins its version
of clinical practice at [the Unit]".
I am disturbed by Mr U's claim that tino rangatiratanga gives
him a right to implement clinical interventions in direct
opposition to the clinical intervention that according to Dr C "has
been a painstakingly coordinated multidisciplinary treatment with
very close liaison between the community support service and the
hospital team over the last few years".
Many organisations that work under Māori models of health
service delivery have practices aimed at maintaining professional
boundaries. There are also New Zealand Qualification Authority
standards for Māori-based health services workers around
professional boundaries. I am therefore unconvinced by Mr U's
argument that working under a Māori health paradigm meant that he
could work separately from the clinical team treating Ms A, and
ignore professional boundaries.
Mr U said that he did not raise any of his concerns about the
treatment plan for Ms A with Ms N, Ms P or psychiatrist. He said
that he recorded his views "openly and honestly" in Ms A's clinical
notes, "believing that it was his duty to do so".
Mr U's unilateral approach flies in the face of concepts
underpinning tino rangatiratanga, which is based on a collective
approach that includes the need to work under tikanga (Māori lore
in terms of customs, values and beliefs), which in turn is based on
treating others with dignity and respect.
Mr U advised that he understood that it was "inappropriate to
have contact of any kind with a patient or ex-patient outside the
in-patient area" and that his "relationship with [Ms A] could be
viewed unfavourably". Mr U stated that he rationalised his contacts
with Ms A as "an extension of the caring relationship that a
healthcare provider must have in relation to the patients and/or
ex-patient".
In response to the provisional report, Mr U admitted that he had
a sexual relationship with Ms A. Mr U's admission came after 12
months of misleading this investigation. Considerable effort was
expended on investigating this complaint, including conducting an
interview with Ms A, which exposed her to undue and unnecessary
stress. I do not accept that his actions can be excused by the
problems he was facing in his personal life, or that his motivation
in establishing the relationship was because he wanted to be
supportive and provide Ms A with a "mental health respite
environment".
Mr U's actions in establishing this relationship with Ms A and
involving her in deception were exploitative and potentially very
dangerous to her well-being. He failed to maintain professional
boundaries in his dealings with her and abused a position of
trust.
Investigation - ADHB
Actions taken by ADHB regarding Mr U's conduct
24 August 2006 - when Mr J, Dr G and Dr C
expressed concern about Mr U's practice in relation to Ms A in July
2006, Ms N addressed those concerns. She spoke to other staff
members who were concerned about Mr U's practice, and to Mr U. (Ms
K, Ms O, Ms L and Ms M are mentioned earlier in the report as
having been spoken to.) Ms N spoke to Mr U regarding his practice
in relation to Ms A. She told him that female patients who have
been sexually abused should not have male staff looking after them.
She recalls that Mr U replied that Ms A would have to learn to
trust men. When Ms N disagreed with him, he told her that she was
being unreasonable because Ms A's clinician was a man.
Ms N conducted a Performance Improvement Plan with Mr U, which
addressed such matters as his need to "explore the legal &
ethical ramification of the clinical notes written on the
19th of July 2006". Mr U was to participate in
individual fortnightly supervision with Mr J and monthly
supervision with a registered nurse. Mr U was to provide Ms N with
evidence of the supervision.
28 August 2006 - Mr Q informed charge nurse Mr R and Dr
C about the conversation he had had with Mr U at the staff party on
25 August about his relationship with Ms A. As a result, ADHB took
disciplinary action against Mr U in respect to the professional
boundary concerns arising from Mr Q's statement. On 1 September, Mr
R, an Acting Nurse Specialist and HR Consultant Ms S met with Mr U
to discuss the allegations. Mr U denied having a sexual
relationship with Ms A, stating that the relationship was a
supportive friendship.
1 September 2006 - Mr R, the Acting Nurse Specialist,
and Ms S, HR Consultant, met with Mr U to "gain information
following on from a serious allegation re [Mr U] breaching
professional relationships". Mr U told Mr R that he wanted to hear
what he was accused of before he considered "what action and what
support he would need". The details of the allegation were
discussed. Mr U said that the report that he was having a
relationship with Ms A was "rubbish". He denied saying any of the
things attributed to him by Mr Q. He denied having "slept with her"
or having "crashed [at] her place". He said that he tried to be a
friend "based on trust and respect". Mr U admitted to telephoning
Ms A, taking her for walks on the beach and going to her house to
take her out for coffee. Mr R told Mr U that he would be off work
on special leave until the investigation into the allegations was
concluded.
20 September 2006 - Ms B notified the Nursing Council
of her concerns about Mr U's health and competence to practise. The
Nursing Council forwarded Ms B's notification to the Office of the
Health and Disability Commissioner. Mr U's response to this
complaint has been summarised and included where relevant within
this report.
6 October 2006 - Ms P wrote to Mr U regarding
arrangements for a disciplinary meeting. Ms P stated, "We are
disappointed and concerned about the length of time that has lapsed
whilst trying to arrange a meeting with your representative." Ms P
proposed a meeting with Mr U and his representative for the week of
9 October.
13 October 2006 - Ms B, Ms P and HR consultant Ms T met
with Mr U and his legal representative to discuss concerns about Mr
U's professional conduct. The following is a summary of the notes
taken during the meeting:
- "[Mr U] responded by stating that the matter for him was the
expectations of a 'psych nurse'. [Mr U] stated he is a recovery
nurse not a psych nurse."
- [Ms B] read from the Code of Conduct for Nurses and Midwives
regarding professional conduct and explained that "contacting a
service user outside of the unit was an issue".
- The lawyer stated that the "service user was not an inpatient
when [Mr U] made contact with her". He said that [Mr U] was "acting
as a committed and caring nurse acting in the best interests of a
patient". He also raised the gender issue and said that "it is
offensive to state that a male nurse should not massage a female
patient's legs".
The lawyer requested that Mr U be provided with clinical
supervision for six weeks. Ms B agreed "as a gesture of good faith"
to approach Mr U's clinical supervisors to see whether they would
provide supervision.
18 October 2006 - Ms P confirmed in a letter that
supervision would be arranged. She required an undertaking from Mr
U that he would have no further contact with Ms A while he was an
employee of ADHB.
2 November 2006 - Ms P wrote to Mr U (care of his
lawyer) to remind him about the conditions of his continued
employment by the ADHB. Ms P requested a further meeting with Mr U
by 10 November 2006, so that they could discuss his future with the
ADHB.
24 November 2006 - Mr U advised Mr J that he intended
to resign and that his last working day would be 27 November. He
said that he was relocating and hoped to find employment in "either
an in-patient unit or in the area of psych liaison". Mr J recorded
that Mr U declined his offer to provide further supervision. Mr U
did not resign until December. His last working day was 10
December, and he did not relocate at that time.
4 December 2006 - Ms N and Ms P provided written
references for Mr U. Neither reference makes any mention of the
conduct that led to the disciplinary process, any concerns about Mr
U's nursing practice, or the circumstances surrounding his
departure. Ms P's reference states that Mr U was resigning his
position following some "domestic issues that have impacted on his
health".
5 December 2006 - ADHB signed a confidential settlement
agreement with Mr U. It confirmed that the two references were part
of its settlement agreement with Mr U and accepted that the terms
of the agreement created risk for potential employers and their
patients. However, in ADHB's view, risk to patients elsewhere
cannot be readily addressed in an employment dispute, and the risk
already existed by virtue of the Privacy Act 1993 and the
restrictions it places on ADHB's ability to pass on personal
information about competence concerns. ADHB stated that verbal
reference checks are common practice in the sector and that it was
unfortunate that in this case thorough reference checking did not
occur.
6 December 2006 - Mr U resigned from Auckland City
Hospital "for personal reasons" - effective from 10 December 2006.
Mr U was subsequently employed by another District Health Board's
Mental Health Service.
Deputy Commissioner's Findings - ADHB
Direct or vicarious liability
ADHB had an obligation to provide Ms A with appropriate care. As
Mr U's employer, ADHB is vicariously liable for Mr U's breach of
the Code unless it can show that it took reasonable steps to
prevent it.
There were clear guidelines available to staff concerning the
Board's expectation relating to patient/staff relationships. As
previously discussed, the Board's policy, "Guidelines for Safe
Practice - Professional Relationships" states that "social contact
and friendships between staff and patients are to be avoided", and
that "sexual behaviour or sexual contact between staff and patients
is … prohibited".
The Unit also had "unwritten rules" relating to staff
involvement with patients like Ms A. These "rules" were well known
to the staff at the unit, and had been reinforced in writing by Ms
A's clinician when it became known that Mr U had entered Ms A's
room unaccompanied by a female member of staff.
When Ms N was informed by Ms L and Ms K about the massage
incident, she spoke with Mr U and reminded him of his professional
responsibilities. When ADHB learned that Mr U had disclosed a
sexual relationship with Ms A, appropriate action was taken. Mr U
was invited to meet with senior staff to provide an explanation,
conditions were placed on his continuing employment with ADHB, and
supervision was organised. Mr U decided not to continue his
employment with ADHB, and his resignation was accepted on 10
December 2006.
I am satisfied that ADHB provided appropriate care to Ms A and
that the policies and systems operating at ADHB and the Unit at the
time were appropriate, adequate and provided a clear expectation of
the standard of behaviour expected of staff. In my view, Mr U was
aware of his responsibilities and obligations.
The policies could, however, be improved by making it clearer
that such contact with former patients is also unacceptable. It
would also help to make the practice of female staff working with
female patients who have experienced sexual abuse a documented
policy. I am also satisfied that the appropriate corrective
measures were taken to ensure that Mr U was practising safely
within the Unit.
In my opinion, ADHB did not breach the Code and is not
vicariously liable for Mr U's breaches of the Code.
Deputy Health and Disability Commissioner's opinion
Mr U
I consider that Mr U's conduct towards Ms A clearly transgressed
professional boundaries and was in breach of ethical standards.
Accordingly, in my opinion Mr U breached Rights 4(2) and 4(4) of
the Code.
It is also my opinion that Mr U's conduct amounts to sexual
exploitation as well as a departure from ethical standards, and is
therefore in breach of Rights 2 and 4(2) of the Code.
ADHB
I consider that ADHB responded promptly and appropriately to the
allegations about Mr U's relationship with Ms A. Senior nursing
staff were sufficiently concerned that Mr U could pose a risk of
harm to the public that Ms B notified the Nursing Council of her
concerns, under section 34 of the Health Practitioners
Competence Assurance Act.
Other comment
When Mr U resigned, he was provided with references that made no
mention of the serious concerns relating to his practice. As a
result, Mr U went on to gain employment at another District Health
Board's in-patient mental health unit. ADHB stated that privacy
constraints are relevant to this issue and outweighed the need to
consider public safety. I do not agree with this stance and believe
that the references should have included mention of the concerns
about Mr U's practice.
In response to the provisional opinion, ADHB stated that the
Board has never taken the stance that privacy constraints outweigh
the need to consider public safety. The Board's legal advice is,
"generally, that privacy constraints can prevent employers passing
on adverse personal information". The Board pointed out that Mr U
could have refused ADHB consent to pass on information. He could
also have refused to authorise prospective employers contacting
ADHB referees. ADHB submitted that this is different from providing
inadequate written references, which the Board accepts should have
been avoided. ADHB believes that public safety must always take
priority, to the extent allowed by law.
Notwithstanding ADHB's submission, I remain of the view that it
was irresponsible of ADHB to provide positive references for Mr U
in such circumstances. Doing so had the clear risk of assisting an
employee who was considered to pose a potential risk to public
safety, to gain employment in a similar area without his new
employer being aware of the need for supervision and safeguards.
The obvious course of action would have been to refuse any
reference other than a written record of service. I would expect
future employers to carry out reference checks. However, providing
a positive written reference and then relying on future employers
to enquire as to whether it is true is disingenuous.
I am pleased that ADHB has seriously considered my comments
regarding the provision of written references in this case and is
implementing education for the Human Resources practitioners and
managers to ensure that references do not place subsequent
employers and their patients at risk.
Recommendations
I recommend that Mr U:
- provide a letter of apology to Ms A;
- undertake supervision and training on maintaining appropriate
boundaries as a health care provider.
Proposed follow-up actions
- Mr U will be referred to the Director of Proceedings in
accordance with section 45(2)(f) of the Health and Disability
Commissioner Act 1994 for the purpose of deciding whether any
proceedings should be taken.
- A copy of this report will be sent to the Nursing Council of
New Zealand, with a recommendation that a competence review of Mr
U's practice be considered.
- A copy of this report, with details identifying all parties
removed, except Auckland District Health Board, will be sent to Mr
U's new employer and placed on the Health and Disability
Commissioner website, www.hdc.org.nz, for educational
purposes.
Addendum
The Director of Proceedings considered the matter and laid a
charge before the Health Practitioners Disciplinary Tribunal. The
Tribunal concluded that the actions of Mr U amounted to such a
significant departure from accepted standards that discipline was
warranted, and it upheld the charge of professional misconduct.
The Tribunal imposed the following penalties: censure,
cancellation of registration, and the imposition of a number of
conditions on any application Mr U might make to re-register with
the Nursing Council of New Zealand. An order for costs of
$7,500.00 was also made.
The Director decided not to issue proceedings before the Human
Rights Review Tribunal.
Appendix 1 − Parties involved
Ms A Consumer
Mr U Provider/psychiatric staff nurse
Ms B Complainant/Nurse Leader
Dr C Psychiatrist/Clinical Director
Ms D Psychologist
Ms E Staff nurse
Ms F Charge nurse
Ms G Medical Officer Special Scale
Mr H Staff nurse
Mr I Staff nurse
Mr J Staff Nurse
Ms K Team Support Worker
Ms L Bureau staff nurse
Ms M Staff Nurse
Ms N Charge nurse
Ms O Team Support Worker
Ms P Unit Manager
Mr Q Team Support Worker
Mr R Charge nurse
Ms S HR Consultant
Ms T HR Consultant
Appendix 2 − Code of Health and Disability Services Consumers'
Rights
The following Rights in the Code of Health and Disability
Services Consumers' Rights are applicable to this complaint:
Right 2 − Right to Freedom from Discrimination,
Coercion, Harassment, and Exploitation. Every consumer has the
right to be free from discrimination, coercion, harassment, and
sexual, financial or other exploitation.
Right 4 − Right to Services of An Appropriate
Standard
(2) Every consumer has
the right to have services provided that comply with legal,
professional, ethical, and other relevant standards. …
(4) Every
consumer has the right to have services provided in a manner that
minimises the potential harm to, and optimises the quality of life
of, that consumer.
Other relevant standards:
Nursing Council of New Zealand "Code of Conduct for Nurses and
Midwives" printed August 2005.
"Principle Two
The nurse or midwife:
Criteria
2.1 is guided by a
recognized professional code of ethics applied to nursing and
midwifery;
Conduct in Question
Some examples of behaviour which could be considered as a basis
for a finding of professional misconduct or imposing a penalty are
listed below:
…
- Entering into a sexual or inappropriate intimate relationship
with a client or ex-client …
Nursing Council of New Zealand's Competencies for the Registered
Nurse scope of practice (September 2004):
1.6: Practises nursing in a manner that respects the
boundaries of a professional relationship with the client. …
7.0 Ethical accountability:
The applicant practises nursing in accord with values and moral
principles which promote client interest and acknowledge the
client's individuality, abilities, culture and choice.
Mental health performance criteria
The applicant:
…
- Recognises ethical dilemmas and problems arising in a mental
health nursing context.
…
- Consults with experienced mental health nurses when confronted
with an ethical dilemma.
- Practises within recognised codes of ethics and codes of
conduct.
Appendix 3 − Dr C's concerns about Mr U's practice
On 25 July Dr C wrote:
"I feel I must lodge a complaint
against staff nurse [Mr U] for both his clinical interventions with
the service user [Ms A] and his HCC [clinical records]
documentation thereof. I offer the following analysis, including
excerpts from [Mr U's] notes [noted in bold], in explanation.
Overview
[Ms A's] has been a painstakingly coordinated multidisciplinary
treatment with very close liaison between [the community support
service] and the hospital team over the last few years. Her therapy
with [Ms D] has, in my opinion, been exemplary under very fraught
conditions … She was admitted informally to [the Unit] in a very
agitated, suicidal and vulnerable state. Her admission ultimately
lasted four days and [Mr U's] actions occurred during the night
shift. …
'[Ms A] appears as tho she would benefit from referral
to DBT, as [Ms A] needs tools/strategies that she can self
implement when feeling in crisis, and so become proficient in
managing her own crises instead of having her alters be the focus
of her therapy.'
(N.B. [Ms A] has been and continues to be receiving DBT-based
treatment)
I have no difficulties with any staff member voicing strong
opinions. In fact, I regard the exchange of clinical opinions as
the life's blood of competent treatment. But, given [Ms A's]
well-documented vulnerability to issues of abandonment and
mistrust, I regard [Mr U's] unilateral 'collaboration' (without
prior consultation with her team) in the second-guessing of the
approach of her most vital support people as ill conceived and
potentially very dangerous.
[Mr U's] criticism extends to the inpatient team as well. Charge
nurse [Ms N] and I became concerned during the course of [Ms A's]
admission with the approach [Mr U] was taking. [Ms N] informed me
on 20/07/06 that she had given instructions to the staff to the
effect that only female nurses would be assigned to work with [Ms
A]. After reviewing the clinical record and noting not only [Mr
U's] practices but also the harassment [Ms A] had received from two
male service users, I decided to restate this restriction in my
clinical note of 20/07/06, reasoning that [Ms A] would benefit from
the elimination of one powerful potential source of internal
conflict and potential destabilisation while striving to regain her
emotional footing. [Mr U] acted, in my opinion, to undermine this
clinical decision. He writes in the clinical notes, once again in
collaboration with [Ms A]:
'[Ms A] informed of "nil male staff to nurse"; [Ms A]
angry and venting her displeasure at this. [Ms A] encouraged to
speak with drs this morning.'[again - need to find
this entry]
Summary
[Mr U's] judgement, in my opinion, is impaired. He appears to be
poorly boundaried both in his clinical interventions with this most
vulnerable service user and in his clinical documentation. I
frankly am concerned about [Mr U's] motivations as well as his
clinical competence as represented in the preceding
commentary."
Appendix 4 − ADHB Policy
ADHB updated its policy "Guidelines for Safe Practice -
Professional Relationships" in March 2002. The policy states:
"Ethical and legal obligations
Staff have an ethical obligation to patients and to their
colleagues and are to practise within their professional
guidelines, codes of practice and ethics where these apply.
Staff have a legal obligation under the Human Rights Act not to
abuse power.
…
Staff have a legal obligation to ensure the Code of Health and
Disability Services Consumer Rights is upheld. ...
Professional boundaries
Social contact and friendships between the staff and patients
are to be avoided as they may compromise the boundaries of
professional relationships. …
Sexual behaviour or sexual contact between staff and patients
and their families under their professional care is prohibited.
Staff are to refrain from undue familiarity and the use of
endearments.
ADHB discourages staff taking patients to the staff member's
home. There may be extreme exceptions to this in which case staff
are to have the permission of their manager. Permission and visits
are to be documented in the patient's clinical record.
Staff are to visit patients at home only on work related
business.
Appendix 5 − Mr U's response to Provisional Opinion
In his response to the provisional opinion, Mr U admitted that
he had had a sexual relationship with Ms A. Mr U said that when Ms
A became frightened that she was about to be confronted by her
abuser - a family member - he "welcomed her into my home" Mr U
said, "I didn't see the harm, no warning bells went off in my head
like it should, I would have normally."
Mr U said:
"She appeared genuinely frightened
and stated she felt safe being there. I just wanted to be
supportive and provide a similar mental health respite type
environment was my thinking at the time. At the time it was nice
for me too having someone to talk to, who had been where I was
walking, this was the real seduction, in letting it be about me and
not [Ms A] is where it all came undone. … Perhaps I should have
pushed her away, but in truth I cherished the closeness and
intimacy, was afraid to hurt, to reject. … I do not believe I had
considered any of my actions/their consequences and
repercussions."
[1] Blood pressure is measured in
millimetres of mercury. The normal range varies with age, but a
young adult would be expected to have a systolic (upper) pressure
of around 120mmHg and a diastolic (lower) pressure of 80mmHg. These
are recorded as 120/80.
[2] Dialectical Behaviour Therapy is a
systemic cognitive-behaviour treatment for borderline personality
disorder, especially for individuals with chronic patterns of
suicidal or other dysfunctional behaviours. DBT calls for the
patient to accept reality while maintaining a strong and conscious
commitment to change.
[3] Multiple personalities.
[4] A pattern of involuntary movements
induced by antipsychotic drugs such as phenothiazines.
[5] Opinion 06HDC09325, 7 December 2006,
page 7.
[6] Opinion 06HDC06218, 26 January 2007,
page 18.
[7] Tino rangatiratanga is
self-governance by Māori through exercising mana (authority) of
hapu (sub tribes and iwi (tribes).