legal
A 10-year ban for breaching professional boundaries Linda Starr An expert in the field of nursing and the law Associate Professor Linda Starr is in the School of Nursing and Midwifery at Flinders University in South Australia
Crossing professional boundaries is a breach of trust – particularly when this involves sexual misconduct. A recent study identified that whilst sexual misconduct cases (alleged sexual relations and sexual harassment or assault) amongst 15 health professions are rare, the impact they have on those involved and the general community is significant and long lasting (Bismark et al. 2020). During 2011 and 2016, the Australian health regulators received 1,507 notifications of sexual misconduct against 1,167 registered health practitioners – 2% of the total number of registered health practitioners in Australia. Two hundred and eight practitioners were subject to more than one report during that time. Psychiatrists were subject to the most number of notifications regarding sexual relationships followed by psychologists and then general practitioners. Nurses and midwives were subject to 224 - 19.2% of the sexual misconduct notifications (Bismark et al. 2020). Furthermore, this study identified that there were more notifications made regarding male rather than female practitioners, that practitioners tended to be middle aged rather than younger and that there were more notifications made in regional and rural areas than metropolitan areas (Bismark et al. 2020). The findings of a recent case filed against a registered nurse - Monteduro (M) by the NMBA is an example of a sexual boundary breach. The allegations of professional misconduct against this practitioner were that they failed to observe a proper professional relationship with patient VXJ when she was an inpatient and after she was discharged from the facility, a breach of professional boundaries with VXJ having a sexual relationship with her following her discharge and giving false and misleading explanations in the investigation on more than one occasion.
References Bismark M, Studdert D, Morton K, Paterson R, Spittal M, Taouk Y. Sexual misconduct by health professionals in Australia, 2011–2016: a retrospective analysis of notifications to health regulators. Med J Aust 2020; 213 : 0 Nursing and Midwifery Board of Australia v Monteduro [2020] SACAT 27 (4 May 2020)
VXJ was a psychiatric patient who was first diagnosed with bipolar disorder and late schizoaffective disorder following psychotic episodes, having been admitted in an acute state following thoughts of harm to her parents, herself and her dog. M was one of the nurses who provided care for VXJ and so would have known that she was a vulnerable person. During her admission, M gave VXJ his mobile and home landline telephone number, evidence provided during the hearing indicates that VXJ rang these numbers more than 250 times during her admission, however, there was no mention of this in her case notes.
In 2012 following her discharge VXJ moved in with M where a sexual relationship began, although the practitioner denied this. During this time M took several steps to prevent their relationship from becoming known, reduced her medication to a point where she was experiencing symptoms and manipulated her into not seeking psychiatric care. VXJ later bought a property at Jervois where they both lived together in a de facto relationship. VXJ also assisted M financially. The relationship ended in 2015 due to alleged domestic violence where VXJ reported M to the police for assault and rape. Having considered the evidence and noting the inconsistencies in the practitioners’ statements during various interviews, the close proximity between VXJ’s discharge and their cohabitation, and that the relationship commenced whilst M and VXJ were in a nurse patient relationship the tribunal concluded that M acted contrary to the Code of Professional Conduct, fell below what would be the expected reasonable standard of care which amounted to professional misconduct. The tribunal further noted that M owed a duty of candour and cooperation throughout the investigation which was breached through his false and misleading statements finding that M was not a fit and proper person to be registered as a nurse. The tribunal ordered that M be reprimanded, cancelled his nurses’ registration, disqualified him from applying for registration for 10 years, prohibited him from providing any health service for 10 years and ordered him to pay costs of the proceedings. Patients rely on healthcare practitioners to be trustworthy and practice in an ethical manner with integrity and without taking advantage of them. Any breach of professional boundaries threatens this trust and has the potential to undermine the public’s confidence in the profession. It is important that all health practitioners are aware of their legal and ethical obligations where they form a reasonable belief that a colleague has breached professional boundaries and take the appropriate action necessary to protect the public.
Oct–Dec 2020 Volume 27, No. 1 21
