Charge
On 7 to 9 June 2023, the Health Practitioner’s Disciplinary Tribunal heard a charge of professional misconduct laid by the Professional Conduct Committee appointed by the Nursing Council of New Zealand against Mr S, a registered nurse (the Nurse).
The charge alleged is summarised that:
The Nurse behaved in an inappropriate and/or sexually inappropriate manner towards a tetraplegic patient, Mr A, by:
- Touching Mr A’s nipples and/or genitals in a sexual manner;
and/or
- Masturbated Mr A without his consent and/or when there was no clinical justification for this.
The charge alleges that the conduct described in particulars 1.0 and 2.0 amount to professional misconduct pursuant to section 100(1)(a) and/or (b) of the Act and that it is conduct that brings discredit to the nursing profession. A copy of the full charge can be found in the decision.
The full charge can be found in the Tribunal's decision.
Background
At the time of the alleged conduct, the Nurse was working as a district nurse, which involves visiting patients in their home including the complainant. The Nurse was providing ongoing wound care to a pressure sore of the complainant and changing/flushing his catheter. It was agreed that on one particular visit, the Nurse did touch the complainant’s genitalia, but the accounts diverge as to whether he touched the complainant’s nipples, whether the touching was sexual and whether he masturbated the complainant. They were the only two people in the room at the time.
Given the factual dispute, the Tribunal saw their task as to evaluate the credibility of both the Nurse and the complainant. The complainant stated that the Nurse first changed the dressing, then stated that he was going to conduct a groin check to see if there was any leakage of the catheter. The complainant then started to fall back to sleep. He described lying on his back and feeling the practitioner playing with his nipples and masturbating him. The complainant was unable to clarify if he saw the conduct happening, or if he sensed it by touch and hearing. There are varying accounts of what the complainant told different co-workers after the alleged conduct, who then called the Police. The complainant testified that the Nurse had consensually masturbated him once before.
Finding
The Tribunal found the complainant to be credible, although they identified several inconsistences in his evidence that made aspects of it unreliable. Similarly, there were also a number of inconsistencies found in the Nurse’s evidence, although the Tribunal found him to be credible also. In reaching the conclusion that the Nurse’s account of the events was preferred, the Tribunal placed significant weight on the fact that the Nurse was providing appropriate care when he was checking the complainant’s genitals. The Tribunal found the charge was not established.
The Tribunal wished to note that in reaching this decision no criticism was being made of the complainant. The importance of properly acknowledging disabled persons’ complaints of sexual abuse was emphasised, given New Zealand’s poor history of doing so. Given their finding on liability, the Tribunal considered it appropriate to suppress the Nurse and complainant’s names.