Director of Proceedings v Mr S

Health Practitioners Disciplinary Tribunal, 1120/Nur20/480D (27 October 2020)

The Director filed a charge of professional misconduct against a registered nurse, “Mr S”, in the Health Practitioners Disciplinary Tribunal (“the Tribunal”). The charge related to inappropriate sexual activity between Mr S and his patient (“Ms T”), who was undergoing medical detoxification in a public hospital.

The first particular related to sexual or intimate contact between Mr S and Ms T, in that it was alleged that Mr S: hugged Ms T; touched her breast and/or failed to immediately remove his hand from her breast; touched her genital area and/or moved his fingers around her genital area; penetrated her vagina with his finger(s); masturbated over her while she was lying face down; and ejaculated onto her back and then cleaned the area before returning to his work.

The second particular stated that Mr S failed to set or maintain appropriate professional boundaries with Ms T, largely because of the particulars described above.

The events that led to the charge occurred in 2016. Mr S, a registered nurse at a public hospital, was employed on a night shift on a medical ward. Ms T had been admitted for medical detoxification and to facilitate medical assistance with alcohol withdrawal. At times she presented with moderate to severe withdrawal symptoms and was prescribed diazepam (a sedative, muscle relaxant, and anticonvulsant) and zopiclone (for short-term treatment of insomnia). Mr S administered both medications and others over the course of his shift on that night. At around 4.30am, Mr S entered Ms T’s room — shared with three others — and found her awake despite the administration of zopiclone some hours earlier. He encouraged her to go to sleep. Mr S then engaged in the sexual activity with Ms T.

Mr S returned to the room at 6.30am and administered Ms T diazepam and a medication for a vitamin deficiency. He recorded that Ms T had been “awake all night” but that otherwise it had been a “settled night” with no concerns. He did not record the sexual activity that had taken place. At around 7am he handed over to the morning shift and left the hospital. He did not report or speak to anyone about the incident. Ms T woke at approximately 8am, confused as to her whereabouts, and reported an allegation of sexual assault to another nurse.

Mr S admitted some serious aspects of the charge: namely, that he did place his hand on Ms T’s breast (although he stated that this was because Ms T had placed it there, and that he removed it immediately), that he did place his hand on Ms T’s genitals (but stated that this was because Ms T had placed it there, and that he did not move his hand around on her genitals), and that he did masturbate over Ms T, ejaculate on to her lower back, wipe up his ejaculate, and return to work. However, Mr S denied (and the Tribunal did not find) that he hugged Ms T, or penetrated her vagina. The Tribunal accepted that Ms T placed Mr S’s hand on her breast and vagina, and that he moved his hand away.

Ms T did not attend the Tribunal hearing, and the Director relied primarily on Mr S’s admissions and his interview with Police. The Tribunal found that the admitted activity amounted to malpractice and negligence and was likely to have brought discredit to the nursing profession. It was sufficient to warrant disciplinary action. The Tribunal noted that Ms T was “particularly vulnerable given her admission due to substance and alcohol abuse and detoxification”. The Tribunal accepted the Director’s submission that despite an escalating situation with numerous opportunities to remove himself, Mr S chose not to leave, but to continue with the sexual activity. His actions were in conflict with his professional training and “grossly breached the patient/nurse practitioner relationship”.

The Tribunal declined to cancel Mr S’s registration in light of his co-operation with the Health and Disability Commissioner investigation, his admission of inappropriate activity, the one-off nature of the incident, and a low risk of re-offending. The Tribunal censured Mr S and ordered his suspension from practice for six months (taking into account that Mr S had been suspended for approximately four years prior to the decision). The Tribunal required that on resuming practice, Mr S undertake regular and structured professional supervision, complete a course of instruction in professional boundaries and ethics, and, for a two-year period, meet monthly with a senior male registered nurse as a mentor. For a period of three years, Mr S is required to advise any employer of the Tribunal’s decision and, in the same timeframe, may work only for an employer approved by the Nursing Council. Mr S was ordered to pay a contribution towards the costs of the Tribunal and the Director in the sum of $26,000.

The decision is an important reminder of the need to maintain professional boundaries between practitioner and health consumer. Any intimate or sexual contact — regardless of duration, frequency, or consent — is likely to be viewed by the Tribunal as a very serious matter, particularly given the power imbalance between provider and consumer, the provider’s specialised knowledge, authority, and influence, and the provider’s access to information about the health consumer when receiving care.

The Tribunal’s decision can be found at:

https://www.hpdt.org.nz/portals/0/1120Nur20480D.pdf