CITATION:	Nursing and Midwifery Board of Australia v Isgrove  [2015] QCAT 522	

PARTIES:	Nursing and Midwifery Board of Australia
(Applicant)	
	v	
	Mr Madai Isgrove 
 (Respondent)	

APPLICATION NUMBER:	OCR002-15	

MATTER TYPE:	Occupational regulation matters 	

HEARING DATE:	14 October 2015 	

HEARD AT:	Brisbane	

DECISION OF:	Judge Alexander Horneman-Wren SC, Deputy President	

DELIVERED ON:	14 October 2015 ex tempore 	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	Madai Isgrove has behaved in a way that constitutes professional misconduct. 
2.	Madai Isgrove is prohibited from applying for registration as a health practitioner for a period of nine years from the date of this order.
3.	Madai Isgrove is to pay the Nursing and Midwifery Board of Australia’s costs of and incidental to the proceedings as assessed on the standard basis for matters on the District Court Scale.
4.	The Order pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) made on 27 March 2015 be maintained, with order 2 amended so that ‘affidavit’ is replaced by ‘affidavits’.
5.	Exhibit 3 entitled “Bundle XY” be placed in a sealed envelope and marked “Not to be opened other than by order of the Tribunal.”	

CATCHWORDS:	PROFESSIONS AND TRADES –HEALTH CARE PROFESSIONALS –NURSES –where the registrant employed nurse at psychiatric hospital –where registrant made nursing administration assessment of patient –where patient suffered from depression and anxiety, suicidality and a gambling addiction –where registrant maintained an inappropriate sexual relationship with patient both personally and via mobile phone –where registrant asked patient to represent to the registrant’s employer and APRAH the relationship did not exist –where the registrant has behaved in a way that constitutes professional misconduct

Health Practitioner Regulation National Law Act 2009, s 138

Medical Board of Australia v Love [2013] QCAT 608.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	S Gallagher of Corrs Chambers Westgarth. 	

RESPONDENT:	No appearance	

REASONS FOR DECISION
 
The Proceedings 
[1]	The Nursing and Midwifery Board of Australia have referred disciplinary proceedings against Mr Madai Isgrove to the Tribunal.  The Board alleges that Mr Isgrove has behaved in a way that constituted “professional misconduct” as defined by the Health Practitioner Regulation National Law.  Mr Isgrove was formerly a registered nurse.  He held registration between 1 July 2010 and 3 July 2014.  
[2]	The fact that Mr Isgrove no longer holds registration is no prohibition to the Board referring this matter to the Tribunal, nor to the Tribunal determining it.  Section 138 of the National Law provides that proceedings may be taken under part 8 of the National Law in relation to a person’s behaviour while the person was registered as if the person were still registered.  
[3]	Mr Isgrove has not participated at all in the proceedings, although he has had notice of them.  

Mr Isgrove’s Conduct 
[4]	Mr Isgrove was employed as a nurse at a private psychiatric hospital from 5 September 2011 to 24 April 2012, when his employment was terminated by the hospital.  It is tolerably clear that the termination of his employment was for reasons relating to his misconduct, which also formed the basis for these proceedings.  
[5]	A female patient, ABC, was an inpatient at the private hospital between 29 November 2011 and 20 January 2012.  She had previously been admitted to the hospital in 2006, and again in 2010.  From 2010 to about 2011 – 2012, she was admitted to the hospital every two to three months, for periods ranging from days to weeks.
[6]	On the day prior to her admission in November 2011, ABC was suffering from a severe episode of depression.  She had been driving her car with the intention of committing suicide either by driving off a cliff or into a tree.  She called her treating psychologist, who told her that she was to admit herself to the hospital the next day or the psychologist herself would take out an involuntary treatment order against her.  ABC slept in her car that night outside the hospital so that she could admit herself the following day; which she did.
[7]	Mr Isgrove was the nurse who admitted ABC on 29 November 2011.  He had not been responsible for any care of ABC on her earlier admissions to the hospital.  He completed a nursing administration assessment in respect of ABC, in which he recorded that she: was a known patient to the hospital;  had been admitted three times that year;  suffered with anxiety and depression;  was being admitted that day for depression, suicidality and a gambling addiction;  and that she had suicidal thoughts and a plan to end her life.
[8]	Any registered nurse working within a psychiatric hospital would know that any patient being cared for within the hospital would be vulnerable to some greater or lesser extent.  Having attended to the admission of ABC on this occasion, including the recording of her history, which included frank, present suicidal ideation and planning, the fact that ABC was a highly vulnerable person was patently obvious to Mr Isgrove; he had actual knowledge of the high degree of vulnerability of this patient.
[9]	Having been discharged on 20 January 2012, ABC was again admitted to the hospital on 19 March 2012.  Mr Isgrove was assigned to provide nursing care to ABC on one occasion during this admission; 3 April 2012.  However, there was contact between them and a most gross and abhorrent violation of the boundaries between a nurse and a patient within a hospital which occurred prior to that occasion. 
[10]	ABC first had contact with Mr Isgrove on 1 April 2012, when she gave him her mobile phone number to pass on to a former member of the hospital staff who had previously assisted her with gambling addiction issues.  At 9.23 that night, Mr Isgrove sent a text message to ABC informing her that he had passed on her number to the former staff member as requested. 
[11]	Within 20 minutes of that first text message, Mr Isgrove commenced exchanging text messages with ABC which quickly took on a flirtatious tone.  They included references to Mr Isgrove “tucking in” ABC.  These communications between Mr Isgrove and a patient of the hospital were highly inappropriate.  Any registered nurse should have known them to be so.  I am satisfied that Mr Isgrove, in fact, knew them to be so.
[12]	A message sent at 10.53 pm on 1 April 2012 says:
‘Night.  If you want to, text me any time;  but keep it quiet.
[13]	In the context of the exchange of text messages, I am satisfied that this message was from Mr Isgrove.  It betrays his knowledge that the communications between them were wrong and hence should be kept quiet.
[14]	By the following morning, 2 April 2012, the conversation moved from the flirtatious to the suggestive.  By late afternoon, it had progressed to the graphically sexual.  By early evening, it had progressed to the possibility of them meeting, quite apparently for the purposes of some sexual encounter. Shortly thereafter, Mr Isgrove instructed the patient to “change and get leave”.  This was at 7.06 pm.
[15]	At 7.11 pm, there is a message: 
Now pick you up down bottom of road.
[16]	An hour and 21 minutes then elapses between the text messages.  ABC deposes to having performed oral sex upon Mr Isgrove on that date.  There is no reason to doubt her evidence. It is also corroborated by the next series of text messages, which included:
You like? 
Fuck yes.
Oh yes, you.
Then I can fuck you hard.  
Is that okay?
You sucked good.
[17]	The appalling nature of this boundary violation in the context of a nurse and patient relationship, particularly in a psychiatric hospital, is highlighted by the very next text message:  
Was going to tuck you in.
[18]	Text communication recommenced at 8.47 on the morning of 3 April 2012.  At 2.32 that afternoon, Mr Isgrove sent a text message in which he refers to masturbating to ejaculation in the shower that morning whilst fantasising about ABC.  As already noted, this was the day on which Mr Isgrove was responsible for ABC’s care.  For several hours, text messages were exchanged in which Mr Isgrove speaks in graphic terms of sexual acts he would perform on ABC.  
[19]	Disturbingly, Mr Isgrove again contextualises sexual contact between them in the nurse/patient setting.  There is discussion of ABC being bathed, but by a female nurse. Mr Isgrove then makes comment about desiring to watch the female nurse bathe ABC.
[20]	His appreciation for the inappropriateness of his conduct, if there be a need for understanding of how inappropriate it was, is evidenced from a text message which reads:
Going to check on you alone.  Can’t come in.  Too risky.  Just a peek.
[21]	Earlier, at 6.28 pm, he had, in one text message, seemingly apologised for not having sent a text for about one and a-half hours because work was so busy; stated that “we have to careful”; and asked ABC if she wanted to send him a picture of her new underwear, the purchase of which they had discussed earlier in the day.
[22]	The text messaging continued over 4, 5 and 6 April.  ABC’s evidence that she again performed oral sex upon Mr Isgrove is again corroborated by text messages on that day;  they indicate arrangements had been made for Mr Isgrove and ABC to again meet outside the hospital.  At 5.23 pm, there is a text which reads:
Hoping for 6.45.
[23]	Then at 5.33 pm:
Won’t be able to do longer than my break, though.  Don’t want to chance it.
At 5.43, there is a text of:
Still trying.
Then at 6.26:
Will going at 7.
This is followed at 6.29 with:
Yes, but not long time.  How you going to get out?
At 6.45, there is an instruction:
Try and leave early and walk up to Cash Converters.
At 6.53:
Will be 10 minutes.  Leaving.
At 7.34:
You okay?  I owe you two.
And at 7.36:
Fan-fucking-tastic.
[24]	A similar pattern of text messages is found on 7 April 2012, the next occasion on which ABC says she performed oral sex on Mr Isgrove.  At 6 pm there is a text:
Break’s running late.
At 6.27:
Going in 15.
[25]	There are no further texts until 6.53, when there is a text apparently from Mr Isgrove to ABC:
Have you gone to sleep?
Which is immediately followed with a text apparently from the patient to Mr Isgrove, which says:
Hello.
[26]	There is nothing further until 8.29 pm, when there is a text which reads:
Good?
Followed by one four minutes later, which said:
You was fucking great.
[27]	The need for the preservation of boundaries in relationships such as nurse-and-patient, and the potential harm if those boundaries are violated, particularly if the patient is vulnerable, is evident from a series of texts which followed soon after, when ABC starts referring to Mr Isgrove as “darling” but in which she also says:
If you don’t want me calling you “darling”, I won’t.  Sorry.
This was at 8.21 and at 8.22 pm.  
[28]	At 10.45 pm, Isgrove sends a text saying:
Have not got time to come down, sorry.  See you tomorrow.
[29]	The text messages continued throughout the remainder of ABC’s stay in the hospital, until she was discharged on 16 April.  She says that she had sexual intercourse for the first time with Mr Isgrove the following day.  Again, there is no reason to doubt her on this. Again, it is corroborated by text messages.
[30]	At 2.14 pm on 16 April, Isgrove inquired:
You discharged?
[31]	Thereafter, the exchange quickly progresses to Mr Isgrove detailing in the most graphic terms the sexual acts he would like to perform with ABC.  There is some discussion of ABC coming to his house the following day.  
[32]	On 17 April, there are texts exchanged about street addresses and numbers.  The last of these is at 10.18 am;  then there is a break in the messaging until 12.24, when there is a message:
You okay?
Followed at 12.26 by:
I know.  Will miss you.
[33]	In text messages on 18 April, Mr Isgrove starts to raise concern that others might know of the relationship.  At 2.51, there is a text which says:
If anyone asks, please deny.
Then at 3.01 pm:
Promise.  Allegation made about being inappropriate to a patient.
At 3.05:
Don’t want you to worry.  It will blow over.  Just need to deny all when asked.
At 3.06:
They won’t tell me who or what.
[34]	In evidence, there is an incident report made by ABC’s psychologist for 18 April 2012, which records that on Easter Thursday, 6 April, while driving her car, ABC contacted the psychologist.  ABC asked the psychologist whether if she told her that a staff member and she were involved, would she need to report that.  When told by the psychologist that she would have to report it, ABC indicated that she no longer wished to talk about it.  
[35]	The incident report also records that ABC ultimately informed the psychologist that she had given  her mobile phone number to the nurse to pass on to a nurse who no longer worked at the facility and then details contact between her and the nurse.  The text messages of 18 April 2012, in context, demonstrate that these issues concerning his conduct at work had been raised with Mr Isgrove in the context of the matters set out in the file note of 18 April 2012, having been revealed by the psychologist.  There are limited text exchanges on the following two days.  Then on 21 April 2012 at 8.48 am, there is a text:
An allegation had sex with patient.  Has anyone said?
At 8.56:
Have meeting at 10.  Going to deny all.  Is that okay?
At 11.40:
In the shit.
At 11.41:
Texting.  Visiting.  Intercourse.  No names.
Then at 11.59 am, Mr Isgrove asks:
Could you do me a favour?
Then at 12 pm:
Until this blow over, could you delete my number just in case they check for safety?  I still have your number written down.
[36]	On 24 April, Mr Isgrove texts:
Been sacked.
[37]	On 26 April, Mr Isgrove raises with ABC that he has financial difficulties.  
[38]	Despite the inappropriateness of his relationship now having been the cause of the termination of his employment, Mr Isgrove from 27 April 2012 solicits from ABC photographs of herself.  She obliges.  There are in evidence a large number, approximately 60, of highly graphic images sent by ABC to Mr Isgrove over about eight months from late April 2012 to 14 December 2012.  Some display her breasts.  Most display her genitals.  Many depict her performing sexual acts upon herself.  Mr Isgrove continued to solicit these images through text messages, often suggesting what he wished to see depicted in the pictures.  
[39]	Interspersed with his sexualised texts are references to his employment and financial problems.  
[40]	On 4 May 2012, Mr Isgrove asks ABC to give him money for the renewal of his nursing registration.  She obliged and gave him $660 in three separate tranches on later occasions.  
[41]	On 8 May, Mr Isgrove texts, saying he needs to talk to ABC.  At 2.16 pm, he says:
You told psychologist.
At 2.19:
You told over Easter and you said I went to your aunty’s.
At 2.25:
You said you didn’t.
At 7.50:
You there?
At 7.53:
Please talk to me.
At 8.14:
Tell me the truth.
8.15:
Please.
8.20:
Not angry.  Just need to get this sorted.
8.35 and 32 seconds:
Can you say you lied?
8.35 and 57:
Please.  For me.
10.08:
What will you say?  You free to text tomorrow?
10.09:
We need to sort it out.
[42]	These texts demonstrate further exploitation of ABC by Mr Isgrove in requesting that this highly vulnerable patient who he had exploited for his own base sexual gratification should now lie on his behalf to cover up the very exploitation, including that she should lie about what she may have told her psychologist who may have been in a position to assist her in light of the awful abuse of trust.  
[43]	On 11 May 2012, Mr Isgrove is still prevailing upon ABC to both lend him money and lie on his behalf.  At 7.45 am that day, he says:
And you need to be convincing when you lie.  Means my career and life.
[44]	In this context, he refers to taking his former employer to court.  At 3.49 pm on 28 May 2012, Mr Isgrove sent a text message to ABC, saying:
You have to stop talking to people.  What exactly you say?
[45]	At 4.06 pm, he wrote:
You need to see –[then he named the manager of the hospital]:…and say you made it all up.  You can’t let your guard down, though.  Say it was attention-seeking.  Delete all texts before you see her.  Text me when you’re done.
[46]	This again vividly demonstrates the extents to which Mr Isgrove was prepared to abuse the relationship of trust between nurse and patient and to exploit the vulnerability of ABC.  He was prepared to coach her to use her own psychological frailties to provide an explanation that may resonate with and be accepted by those who were otherwise providing her with psychological care.  It was upon his own professional knowledge and training that he was able to draw to know that this may be a plausible explanation for her to put forward.  He was prepared to compromise her care.  He was prepared to inveigle her to compromise her own care.  The extent of this is demonstrated by the letter which ABC, in fact, wrote.  In part she states:
“I was admitted to the hospital XY in April to undergo a course.  During this time, I was given a lot of support by Madai (nurse).  Consequently, I became fixated on Madai and by deceit obtained his mobile number.  I would text Madai, who continually rejected my advances, telling me it was inappropriate, unprofessional and he was married.  During a session with my psychologist, I told her I was having an affair with Madai, even though this was a complete fabrication.  This was reported to management and consequently Madai was sacked.  I later recanted with the psychologist, but no action was taken. 
On readmission in May, I continued to lie, obtaining a lot of attention from psychologist, management and staff.  I led them to believe I was being pressured to recant.  However, this was my own struggle with having told such a lie that had continued and evolved to a point I never imagined.  On 28 May 2012, I went to the director of nursing and explained that I needed to tell the truth, ie, that there was no impropriety on Madai’s part, rather just me attention-seeking.  They have noted the recant and today, 29 May 2012, I also spoke with the GM to make sure everyone was aware that I had lied.  I am deeply sorry for my actions, for lying to staff and management, but mainly for bringing Madai into disrepute, something he never encouraged or deserved.”
[47]	ABC deposes to having had sexual intercourse with Mr Isgrove on four more occasions:  once each in November 2012 and December 2012 and twice in May 2013.  Whilst there are no corroborative records in relation to those occasions, given there is no reason not to accept ABC, and given the demonstrable accuracy of her evidence concerning the earlier occasions of sexual activity, I accept her evidence in regard to them and in regard to the further occasion on which she said she performed oral sex on Mr Isgrove in 2013.  
[48]	In total, Mr Isgrove sent ABC 1246 texts between 1 April 2012 and 30 June 2012.  In the same period, ABC sent him 1238 texts.  
Sanction
[49]	The conduct of Mr Isgrove is quite obviously professional misconduct.  It is self-evidently unprofessional conduct, substantially below the standard reasonably expected of a registered nurse.  
[50]	He has engaged in boundary violations of the most serious kind.  He has sexually exploited a person who he knew to be amongst the most psychologically vulnerable we find in our community.  It was his duty to care for this person, not to exploit her for his own base sexual gratification.  
[51]	I have been referred to a number of cases involving boundary violations between registered health practitioners and their patients.  I have found the Medical Board of Australia v Love of most assistance.  Dr Love engaged in a sexual relationship with a patient which lasted over many years, from 2003 until his retirement in 2008.  The relationship commenced about five years after the patient commenced seeing Dr Love as her general practitioner.  She had vulnerabilities of which Dr Love became aware from the time of the first consultation.  However, her vulnerabilities were not at that time, or when the sexual relationship commenced, of the same order of those of ABC when she was admitted to hospital by Mr Isgrove in 2011 or when she returned in 2012.  Dr Love’s patient became increasingly vulnerable at times during their sexual relationship, including becoming an in-patient at the New Farm clinic with occasions of self-harm and overdose. 
[52]	I consider the misconduct of Mr Isgrove to be worse than that of Dr Love.  It was grossly exploitative from the very outset.  The effects of Mr Isgrove’s conduct on ABC are manifest in the material.  She was again admitted to the hospital on 12 May 2012.  The clinical notes of her hospitalisation during that period show how torn and conflicted she was by the feelings of having been exploited but also wanting to protect Mr Isgrove, who was continuing to exploit her.  This conflict ultimately played out in her lying on his behalf at the potential expense of her own care and treatment and in a way that may have destroyed the relationship of trust between her and those providing her care.  
[53]	There has been no demonstration of remorse or insight in this matter.  To the contrary, whilst it is patently clear that Mr Isgrove understood how wrong his conduct was, he nonetheless continued it, further exploiting ABC, compounding his exploitation by having her lie on his behalf, denying any inappropriate conduct to his employer and denying any inappropriate behaviour to AHPRA when they investigated the notification made by his former employer.  These features place his conduct in a worse category than Dr Love.  
[54]	These matters leave me with deep concerns for the protection of the public, if Mr Isgrove were to be permitted to practise nursing again in the future.  In that regard his case is also worse than Dr Love, who was five years retired when he came to be dealt with by the tribunal.  He was prohibited from applying for registration for a period of six years.  Mr Isgrove has not practised for just over one year.  I have given consideration to whether he ought ever to be permitted to practise again in the future.  I cannot discount that he may be able to satisfy the board at some time in the future that he is a fit and proper person to practise the profession of nursing in some context.  However, I am of a view that preclusion from the profession for a period of about 10 years is appropriate in all the circumstances of this case.  
[55]	To protect the public, the reputation of the profession of nursing and the public’s confidence in the profession and its regulation, Mr Isgrove will be prohibited from applying for registration as a health practitioner for a period of nine years from today.  
Costs
[56]	The board seeks an order that Mr Isgrove pay its costs.  There is no reason why that order should not be made in these circumstances.  Mr Isgrove will be ordered to pay the costs of the Nursing and Midwifery Board of Australia of and incidental to these proceedings on the District Court scale to be assessed on the standard basis.  
Non-Publication
[57]	On 27 March 2015, the Tribunal made orders pursuant to section 66 of the Queensland Civil Administrative Tribunal Act 2009 in relation to the publication of certain documents filed in the proceedings.  The orders made on 27 March 2015 will be maintained, with the amendment to order number 2 changing the word “affidavit”, as it appears as the second word in that order, to “affidavits”.  In addition to the order made on 27 March 2015, I order that exhibit 3 entitled Bundle XY be placed in a sealed envelope marked, “Not to be opened without order of the Tribunal”.  
[58]	I direct that the applicant file a redacted copy of the submissions of the applicant filed on 27 August 2015 removing reference to any material which might identify the patient identified in these reasons as ABC, or the facility at which Mr Isgrove worked, identified in these proceedings as XY, or any person employed at the facility XY other than the respondent.