Charge:

A panel of the Health Practitioner’s Disciplinary Tribunal (the Tribunal) convened 18 to 22 September 2023 to hear a charge laid by the Director of Proceedings of the Office of the Health and Disability Commissioner (DP) against Mr William McPhail, now retired nurse of Dunedin (the Nurse).

The Charge alleges breaches of boundaries, including sexual intimacy with a patient or former patient, whom the Nurse cared for in his capacity as a mental health nurse, while employed at Southern District Health Board (SDHB). The alleged conduct occurred over approximately 4 months.

There are three particulars to the Charge:

1. Professional boundary breaches with the patient, including communication via cell phone, meeting her outside the professional context, giving gifts, money and food and sharing personal information;
2. Failing to take appropriate steps when matters arose which should have caused concern for the patient’s wellbeing including episode(s) of dissociation while at a motel and her allegation that she had had sexual relations with another staff member;
3. Engaging in sexual and/or intimate contact with the patient.

The DP charged that the alleged conduct, separately and/or cumulatively, amounted to professional misconduct that warrants a disciplinary sanction.

Background:

The Nurse was a registered nurse (RN) with 46 years’ experience in mental health and psychiatric nursing when he met the patient. He had been employed by the SDHB (and its predecessors) in Dunedin since 1977, had worked for Emergency Psychiatric Services (EPS) team since 2010 and had previously worked as a registered nurse in an acute psychiatric inpatient unit.

In late January, the patient was admitted to hospital. She was discharged but readmitted. At this time, she had been using mental health services since she was a teenager and had presented to EPS previously. She was living in assisted accommodation run by PACT (mental health and addiction support service).

The patient was referred to EPS, where she was assessed by the Nurse.  The patient was then admitted to the ward. During their meeting, the Nurse obtained the patient’s phone number, and the two began exchanging messages. The two met in person on several occasions between January and March.  They remained in contact, having several phone conversations and engaging in communication via Facebook’s “secret chat”, Messenger, and SMS, until at least early May.

The nature and circumstances of the ongoing contact were disputed. Whereas the patient said that the couple engaged in sexual intimacy, the Nurse denied that there was any physical aspect to their encounters. His position was that he was being blackmailed and that he was trying to placate the patient to stop her from making false accusations of sexual assault. It is not disputed that the Nurse either lent or gave the patient various items.

In early May the patient was admitted to Ward 9C where she disclosed to staff that she had been involved in a relationship with the Nurse. The Nurse was advised of the allegations.  The Nurse informed the DHB that he would retire immediately from EPS as he no longer regarded his workplace as safe due to false claims that had been made and the manner in which the matter was being handled by the DHB. The DHB could not complete their investigation because the Nurse resigned. With support from her mental health team and advocacy services, the patient decided to report the matter to the Health and Disability Commissioner.

Finding:

The Tribunal considered the charge was upheld and that the established conduct in all three particulars of the Charge was sufficiently serious to warrant a disciplinary finding and amounted to professional misconduct.

In regard to Particular 1 the Tribunal found the Nurse’s private communication with the patient outside the parameters of the professional relationship was a significant departure from accepted standards.

Particular 2, the Tribunal found that the Nurse failed to take appropriate action or document in the clinical notes, issues that were of concern to the health and safety of the patient.  Although the Nurse was on annual leave at the time, he remained a mental health nurse and a member of the treating team.  Failure to report these significant matters was akin to a nurse failing to render assistance to a person experiencing a suspected heart attack.  It was a breach of the Nurse’s fundamental duty of care as a nurse.

Particular 3.  Engaging in sexual and intimate activities with the patient is a very significant breach of professional standards, irrespective of the patient’s vulnerability.  The fact that she was a mental health consumer with a history of presentations and admissions to the mental health services was an aggravating feature.

Penalty:

The Tribunal ordered:

• Censure;
• Cancellation of the Nurse’s registration;
• The Nurse is not permitted to reapply for registration before the expiry of 12 months from the date of the decision.
• Conditions to be undertaken prior to reregistration.
• Payment of the costs of $70,006.28, being 35% of both the Director of Proceedings’ costs and the Tribunal’s costs.

The Tribunal directed publication of the decision and/or a summary.

The Doctor appealed to the High Court against the Tribunal’s finding but withdrew his appeal.