Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand

• Jurisdiction: New Zealand
• Judge: Collins J
• Judgment Date: 12 December 2012
• Neutral Citation: [2012] NZHC 3354
• Docket Number: CIV-2012-404-003916
• Court: High Court
• Date: 12 December 2012

Under the Health Practitioners Competence Assurance Act 2003

In the Matter of an appeal pursuant to s 106(2)(a) and (b) against orders of the New Zealand Health Practitioners Disciplinary Tribunal

Between

Michael Roberts

Appellant

and

A Professional Conduct Committee of the Nursing Council of New Zealand

Respondent

[2012] NZHC 3354

CIV-2012-404-003916

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

Appeal under s106 Health Practitioners Competence Assurance Act 2003 (“HPCAA”) (rights of appeal) from a New Zealand Health Practitioners Disciplinary Tribunal decision suspending the appellant's registration as a nurse for three years under s101(1)(b) HPCAA (penalties) — appellant began a relationship with a patient and charge was brought after relationship had ended — conflicting High Court decisions as to approach to appeals from Tribunal against penalties — consideration of cases demonstrating heavier penalties for nurses in respect of sexual relationship misconduct findings when compared with penalties imposed on doctors — whether test in Austin, Nichols & Co Inc v Stichting Lodestar applied (Court to assess material considered by Tribunal and reach its own view) or whether test in May v May applied (penalty decision not to be overturned on appeal unless could show the Tribunal made an error of principle, considered irrelevant matters, failed to consider relevant matters or was plainly wrong) — what factors should be considered when considering the penalty — whether or not conditions could be imposed concurrently with a period of suspension.

Counsel:

A H Waalkens QC and K Rose for Appellant

M F McClelland and H de Montalk for Respondent

RESERVED JUDGMENT OF Collins J

Introduction	[1]
Facts	[3]
The Tribunal's decisions	[18]
Appeal test	[22]
The conflicting High Court judgments	[24]
The Austin, Nichols approach	[24]
The May v May approach	[31]
Which approach should I follow?	[36]
Is the Tribunal's penalty decision an exercise of discretion?	[43]
Penalty factors	[44]
Did the Tribunal properly consider all penalty factors?	[52]
Rehabilitation	[54]
Parity with other health professionals	[58]
Overall assessment	[65]
The appropriate penalty	[68]
Cross-appeal	[73]
Conclusions	[74]

Introduction

1 On 15 May 2012 the New Zealand Health Practitioners Disciplinary Tribunal (the Tribunal) suspended Mr Roberts' registration as a nurse. The Tribunal suspended Mr Roberts' registration for three years, the maximum period prescribed by s 101(1)(b) of the Health Practitioners Competence Assurance Act 2003 (the Act). Mr Roberts has appealed the penalty imposed by the Tribunal. His counsel, Mr Waalkens QC submits a three year suspension in the circumstances of this case is excessive and unreasonable. Conversely, the Professional Conduct Committee (the PCC) cross-appeals the order suspending Mr Roberts. Mr McClelland, counsel for the PCC says the Tribunal should have cancelled Mr Roberts' registration as a nurse.

2 There are two issues which I must address before determining the merits of this appeal and cross-appeal. Those issues are:

Before considering these issues and the merits of the appeal and cross-appeal I will briefly explain the accepted facts and summarise the Tribunal's decisions.

• (1) Am I required to assess the material considered by the Tribunal and reach my own view on what penalty should be imposed upon Mr Roberts? 1 Or, should I only allow the appeal or cross-appeal if I am satisfied that the Tribunal made an error of principle, considered irrelevant matters, failed to consider relevant matters or was plainly wrong? 2 I will refer to this issue as the “appeal test” question.

• (2) The charge was brought after it was discovered that Mr Roberts had engaged in a long-term sexual relationship with a woman (N) whom he met when she was a patient in a ward on which Mr Roberts worked. In these circumstances what factors should be considered

  when determining what penalty should be imposed? I will refer to this issue as the “penalty factors” question.

Facts

3 Ms N was admitted as a patient into Ward 5B of Dunedin Hospital on 22 November 2007. She had been diagnosed with a condition called myasthenia gravis; a neurological condition affecting her muscles. Her symptoms included double vision, droopy eyes, facial paralysis, slurred speech, swallowing difficulties and an inability to hold her head and arms up properly. Ms N was admitted to see if intravenous immunoglobulin would alleviate some of her symptoms.

4 Ms N was re-admitted into Dunedin Hospital on 4 December 2007 because of rapid progression of her myasthenia gravis.

5 At the time of her December 2007 re-admission Ms N had been separated from her husband for approximately one year. She was 32 years old and had lost a considerable amount of weight; she weighed only 46 kilograms. She thought she looked horrendous and that no one would ever want to be in a relationship with someone who looked so sick. Ms N described herself as “being extremely vulnerable at that time”.

6 Mr Roberts had been working as a registered nurse on Ward 5B for approximately four months by the time Ms N was re-admitted into the ward on 5 December 2007. When she was re-admitted Mr Roberts completed Ms N's daily care plan, admission assessment and risks screen, fall risk assessment and pressure care risk assessment, all of which are routine assessments completed by nursing staff when a patient is admitted into a ward. Mr Roberts made entries in Ms N's nursing notes on 5 December 2007 and completed two other forms on Ms N's medical file on 5 December 2007.

7 Ms N remained in Ward 5B until she was discharged on 24 December 2007.

8 On one occasion during Ms N's December 2007 re-admission Mr Roberts handed her a piece of paper with his first name and cellphone number written on it. When he gave her this note Mr Roberts said to Ms N “this is highly unprofessional”.

9 Later Ms N sent Mr Roberts a text message. They then began exchanging text messages while Ms N was still in hospital.

10 Ms N enjoyed Mr Roberts' company during her December 2007 re—admission. Mr Roberts would often spend time speaking to Ms N when he was on duty. Ms N was conscious of the fact that she had been diagnosed with an extremely debilitating disease and did not think anyone would be attracted to her. The agreed summary of facts states:

… but then along came a nurse who showed an interest in her and did not seem to worry about the “horrible shunt” in her arm. She was not aware that there was anything wrong with a nurse being in a relationship with a patient that they had looked after.

11 Two days after Ms N was discharged from hospital Mr Roberts visited Ms N at her home. Sexual intercourse took place. The relationship between Ms N and Mr Roberts continued until November 2010. During the last 12 months of this period Mr Roberts and Ms N lived together.

12 Ms N was admitted into Dunedin Hospital again on 8 September 2008. Mr Roberts again completed the routine admission assessments. Mr Roberts also made one entry in Ms N's progress notes on 9 September 2008.

13 Ms N was again admitted into Dunedin Hospital on 30 August 2010. Mr Roberts was listed on Ms N's admission forms as an alternative contact person. His address was noted as being the same as Ms N's. Mr Roberts did not nurse Ms N during this particular admission.

14 The relationship between Mr Roberts and Ms N came to an end on 10 November 2010. On that day Mr Roberts unexpectedly left. Issues arose over money and items which Mr Roberts had taken from Ms N. Mr Roberts was charged with theft. He was granted a discharge without conviction on 15 November 2010 and returned to the United Kingdom soon thereafter.

15 Towards the end of November 2010, and by chance, Ms N met the charge nurse manager of Ward 5B. During that meeting Ms N explained to the charge nurse manager the nature of her relationship with Mr Roberts. Shortly thereafter Ms N was encouraged to write a letter of complaint to the Nursing Council of New Zealand. Ms N wrote her letter of complaint on 10 February 2011.

16 Mr Roberts was charged with professional misconduct. The charge specified that the following matters were either separately or cumulatively acts of professional misconduct:

• (1) the “inappropriate and/or sexual relationship” between Mr Roberts and Ms N;

• (2) Mr Roberts' misappropriation of money belonging to Ms N when he left her; and

• (3) Mr Roberts' misappropriation of items belonging to Ms N at the time he left her.

17 Mr Roberts, who by the time of the Tribunal hearing was working as a registered nurse in England, returned to New Zealand to appear before the Tribunal. He admitted that his relationship with Ms N constituted professional misconduct but contended that the issues of misappropriation of money and items belonging to Ms N were domestic rather than professional issues. Mr Roberts gave evidence before the Tribunal during which he appears to have accepted that he gave misleading information to the Nursing and Midwifery Council of the United Kingdom and his employer in England about the nature of the complaint against him.

The Tribunal's decisions

18 On 15 May 2012, the day the hearing concluded, the Tribunal gave an oral decision in which it explained the penalties it imposed on Mr Roberts. On 12 June 2012 the Tribunal gave a written decision in relation to its findings on both liability and penalties.

19 In its oral decision the Tribunal:

• (1) recorded that it found Mr Roberts guilty of professional misconduct in relation to the charge concerning his relationship with Ms N, but not...