VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z508/2019	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law, s 196 – relationship between nurse and long term patient – whether admitted conduct constitutes unprofessional conduct or professional misconduct – interpretation and application of code of conduct – relevance of evidence of ongoing relationship between nurse and patient.  

APPLICANT	Nursing and Midwifery Board of Australia	
RESPONDENT	Erin Ball	
WHERE HELD	Melbourne	
BEFORE	R. Tang AM, Presiding Member
M. Archibald PSM, Health Practitioner Member
P. Barry, Health Practitioner Member	
HEARING TYPE	Hearing via video conference	
DATE OF HEARING	18 February 2021	
DATE OF ORDER and reasons	18 March 2021	
CITATION	Nursing and Midwifery Board of Australia v Ball (Review and Regulation) [2021] VCAT 232	

Finding
The Tribunal finds that Erin Ball engaged in professional misconduct within the definition in paragraph (a) of the definition of ‘professional misconduct’ in section 5 of the Health Practitioner Regulation National Law by failing to maintain professional boundaries in establishing and continuing an intimate relationship with a patient both during and immediately after the period in which he had been an in-patient at the hospital where she was working as a registered nurse.

Orders
1	The application is listed for an administrative mention on 15 April 2021 by which time the parties may jointly request the Tribunal to make orders to list the proceeding for:
(a)	hearing, by video conference as to the determinations to be made under section 196(1)(b) of the Health Practitioner Regulation National Law; or 
(b)	(if there is no further evidence to be adduced by either party and there is agreement between the parties as to the relevant determinations) determination on the papers, without a further hearing.
2	Any request must be accompanied by the filing of a supplementary electronic Tribunal Book including any additional references or other material, written submissions and copies of key authorities upon which the parties rely in relation to the appropriate determinations to be made.  The Tribunal Book must be indexed with page numbering. No further documents may be filed after this date without the leave of the Tribunal. 
3	If a further hearing is requested, in order for the Tribunal to determine whether the matter can proceed, the parties must also jointly:
(a)	specify the likely duration of the hearing; 
(b)	specify whether witnesses are required to give evidence and, if so, how many; 
(c)	provide at least 2 dates when all necessary participants in the proceeding (ie relevant parties/counsel/witnesses) will be available to attend the hearing particularly noting any (un)available dates of any witnesses or lawyers; and
(d)	advise the Tribunal of any other matters that may impact on the hearing process, such as the need for an interpreter or another form of assistance.
4	The parties are directed to respond promptly to all registry requests for information (including about their access to technology) and to cooperate with the Tribunal’s requirements for the conduct of the hearing.
5	All contact with the Tribunal must include the VCAT case number, and the date of the administrative mention.

R. Tang, AM
Presiding Member	M. Archibald PSM
Health Practitioner Member	P. Barry
Health Practitioner Member	

NOTE: ORDERS UNDER THE OPEN COURTS ACT 2013 ARE IN FORCE
On 25 June 2019, the Tribunal made the following orders:
1.	The disclosure by publication or otherwise of any report of the whole or any part of this proceeding, or of any information derived from this proceeding, which identifies or has the effect of identifying the patient, witnesses or notifiers is prohibited.  
2.	This order applies throughout Australia.  The Tribunal’s reasons for decisions are published on the AustLII website, which is accessible throughout Australia.  The privacy of the people referred to in order 1 would be breached if persons living outside Victoria know or come to know their identity.
3.	This order operates until the death of all of the patient, witnesses and notifiers.

APPEARANCES:		
For Applicant 	Mr B. Jellis of Counsel	
For Respondent	Ms K. McKay of Counsel	

Reasons
1	The factual background to this proceeding is not in dispute, with the parties having filed an Agreed Summary of Facts, Findings and Determinations on 22 October 2020 (ASoF).
2	Erin Ball is a registered nurse, who graduated in 2010 and commenced her nursing career at the Austin Hospital (Hospital) in January 2011.  By the start of 2018, Erin Ball was working as a nurse in the Ward 8 West ward at the Hospital caring for patients admitted for liver or intestinal transplants, Hepato-Pancreato-Biliary surgery or otherwise requiring gastroenterological intervention and treatment.
3	One of the patients for whom Ms Ball provided nursing care was Mr A, who was born with a serious intestinal disorder that required him to regularly receive nutritional treatment at the Hospital.
4	During one admission to the Hospital in January 2018, Mr A disclosed romantic feelings for Ms Ball, which she quickly rebuffed, saying words to the effect that ‘I can’t have an opinion about that because I am your nurse’.  
5	However, in around June 2018, Ms Ball accepted a social media request from Mr A and they engaged in regular communications by social media and telephone, which culminated in Ms Ball inviting Mr A to join her to visit her horse in Arthur’s Creek (where it was agisted) on 3 July 2018.
6	Mr A then invited Ms Ball to join him and his housemate for dinner at their house on 5 July 2018, the night prior to his next admission.  Ms Ball accepted that invitation after speaking with a senior clinical educator at the Hospital who suggested that, if Ms Ball and Mr A ‘were talking and catching up outside of the hospital, then it should be okay’.  However, that night, after dinner, Ms Ball and Mr A held hands and kissed.
7	Recognising that she had developed strong romantic feelings for her patient, on 16 July 2018, Ms Ball disclosed these matters to the Associate Nurse Unit Manager at the Hospital.  The Associate Nurse Unit Manager said she was not sure about the protocols, but that it ‘ought not be a problem’ if Ms Ball moved wards so that she was not nursing Mr A.  
8	On 20 July 2018, following unsuccessful attempts to obtain further advice from the Australian Nursing and Midwifery Federation (ANMF) and Australian Health Practitioner Regulation Agency (AHPRA), Ms Ball raised the issue with the Nurse Unit Manager (NUM) from the ward.  Ms Ball indicated to the NUM that she wanted to pursue a relationship with Mr A, which the NUM thought could be resolved by moving her or Mr A to another ward.  
9	Later that day, after consulting with her manager, the NUM directed Ms Ball’s attention to the code of conduct for nurses developed by the Nursing and Midwifery Board of Australia (Board) and the Hospital’s guidelines.
10	Having considered the material to which she was referred, Ms Ball resigned from the ward on 3 August 2018 to avoid any future therapeutic interaction with Mr A.  She thought this would resolve any issue, and indicated that she hoped to remain at the Hospital working in the nursing bank.  However, the Hospital’s Director of Nursing made a notification to AHPRA on 14 August 2018 and, on 20 August 2018, Ms Ball was advised that she could no longer work at the Hospital in any capacity.  
11	On 24 June 2019, following investigation of the notification by the Hospital, the Board referred a single allegation regarding Ms Ball’s conduct to the Tribunal.
12	Since losing her employment at the Hospital, Ms Ball has been working a few night shifts each week as an agency nurse on a casual basis in various emergency departments.  
13	The relationship between Ms Ball and Mr A has continued, with Mr A moving into her apartment and the pair talking about their future together, including the possibility of marriage and children.
14	While the parties agree on the facts, and Ms Ball conceded (in response to a question from the Tribunal) that she crossed a professional boundary, there is debate as to the findings that should be made by the Tribunal under section 196 of the Health Practitioner Regulation National Law (National Law).  Under that provision, the Tribunal can determine that a health practitioner has:
•	engaged in professional misconduct which, insofar as relevant, includes conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or expertise;
•	engaged in unprofessional conduct which, insofar as relevant, includes conduct below the standard reasonably expected of the health practitioner by the public or the practitioner’s professional peers; or
•	has no case to answer, such that no further action should be taken. 
15	Relevantly, when considering the standard against which to assess the relevant conduct, a code or guideline approved by a national health practitioner board is taken to be ‘evidence of what constitutes appropriate professional conduct or practice for the health profession’.
16	In this case, the relevant code of conduct is the Board’s Code of Conduct for Nurses issued in March 2018 (Code).  The Code requires that nurses maintain ‘professional boundaries’, including that they: 
(a)	recognise the inherent power imbalance that exists between nurses, people in their care and significant others and establish and maintain professional boundaries
(b)	actively manage the person’s expectations, and be clear about professional boundaries that must exist in professional relationships for objectivity in care and prepare the person for when the episode of care ends
…
(d)	avoid sexual relationships with persons with whom they have currently or had previously entered into a professional relationship.  These relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct …
17	The Board contends that, having regard to the Code, Ms Ball’s conduct clearly amounts to professional misconduct.  
18	Ms Ball points to the last sentence in Principle 4.1(d) of the Code to suggest that the Code recognises an exception that some conduct involving a failure to maintain professional boundaries may not be ‘inappropriate’ and therefore not amount to unprofessional conduct or professional misconduct. It is suggested that, in all the circumstances of this case, the Tribunal should find that Ms Ball has no case to answer.
19	For the reasons which follow, the Tribunal is comfortably satisfied (and finds) that Ms Ball’s conduct – as specified in the Notice of Allegations – amounts to professional misconduct.  
20	That we so find illustrates the danger for nurses of letting down their guard and crossing the boundary in their interactions with patients or former patients from a strictly professional (albeit caring) relationship to a personal one. 
21	While it appears that the relationship between Ms Ball and Mr A is proving to be a successful one, and lacks the exploitative element seen in some cases (eg. those involving nurses caring for patients with mental health conditions), it has to be recognised that:
•	there is an inherent power imbalance between nurse and patient;
•	this creates a risk of harm to the patient where boundaries are crossed; and
•	the onus is on the nurse to ‘actively manage’ the patient’s expectations and maintain the clarity around the professional relationship on an ongoing basis.  
22	The conduct has already caused Ms Ball to lose her employment at the Hospital and she has suffered the ongoing uncertainty and anxiety associated with the notification to, and investigation by, the Board as well as the Tribunal proceeding.  Unfortunately, that uncertainty and anxiety will continue until the Tribunal hears from the parties and then makes its decision as to the appropriate determinations.  
The relevant conduct
23	The Notice of Allegations, as amended by consent, is as follows:
That from at least July 2018, Ms Ball engaged in:
(a)	professional misconduct within the definition in paragraph (a) of the definition of ‘professional misconduct’ at section 5 of the Health Practitioner Regulation National Law (National Law); and/or 
(b)	unprofessional conduct within the meaning of the definition of ‘unprofessional conduct’ at section 5 of the National Law
in that she failed to maintain professional boundaries by establishing and continuing an intimate relationship with a patient both during and immediately after the period in which he had been an in-patient at the hospital where she was working as a registered nurse. 
Particulars 
(a)	At all material times Ms Ball was a registered nurse. 
(b)	The relevant patient was an inpatient at Austin Health during several periods between 6 December 2017 and 25 July 2018.  In January 2018, while under Ms Ball’s care, the patient disclosed to Ms Ball that he had romantic feelings for her.  
(c)	In early July 2018, the patient reached out to Ms Ball via social media and Ms Ball accepted that request.  During that period Ms Ball also spoke to the patient by telephone outside of their professional relationship.  
(d)	During July 2018 [Ms] Ball and the patient saw each other socially, including Ms Ball taking the patient to visit her horses and Ms Ball having dinner at the patient’s home.  
(e)	On 20 July 2018 Ms Ball disclosed to her employer that she had feelings towards a patient and that she wanted to pursue a relationship with the patient.
(f)	Ms Ball confirmed by email to the Australian Health Practitioner Regulation Agency on 10 September 2018 that she is in a relationship with the relevant patient. 
(g)	The standard reasonably expected of a registered nurse can be construed with reference to The International Council of Nurses Code of Ethics for Nurses (Revised 2012) (Code of Ethics) [included in the Tribunal Book from page 405] and the Nursing and Midwifery Board of Australia Code of Conduct for Nurses (March 2018) (Conduct Code) [included in the Tribunal Book from page 417].
(h)	Principle 4.1 of the Conduct Code states that Nurses must maintain professional boundaries. In particular, Nurses must: 
(a)	recognise the inherent power imbalance that exists between nurses, people in their care and significant others and establish and maintain professional boundaries 
(b)	actively manage the person’s expectations, and be clear about professional boundaries that must exist in professional relationships for objectivity in care and prepare the person for when the episode of care ends 
… 
(d)	avoid sexual relationships with persons with whom they have currently or had previously entered into a professional relationship. These relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct
Ms Ball’s conduct is inconsistent with Principle 4.1 of the Conduct Code in that she failed to maintain professional boundaries with a patient. 
24	Based on the ASoF, the documentary material in the Tribunal Book (which includes affidavits made by Mr A and Ms Ball) and the evidence given by Ms Ball at the hearing, we are comfortably satisfied that the relevant conduct supporting the allegation, as set out in the above particulars, has been proved.
Submissions on the characterisation of Ms Ball’s conduct
25	The controversy at this stage of the proceeding concerns the characterisation of Ms Ball’s conduct within the framework of section 196 of the National Law.
Board’s submissions
26	The Board relies on the following features of Ms Ball’s conduct in support of its position that it amounts to professional misconduct: 
(a)	It is fundamentally important that patients can attend a health practitioner safe in the knowledge that they will not be regarded as a ‘potential sexual party’.
(b)	Mr A was a long term patient with a chronic condition and there was necessarily a power imbalance with the nursing staff from which he received necessary and ongoing care. As patients can develop feelings for their carers, it is ‘essential that such relationships remain professional’. 
(c)	Ms Ball must have been aware that Mr A might return for future care at the Hospital and that commencing a relationship with him ‘jeopardised her ability to be involved in his ongoing care’ and would have implications for his continuity of care if the relationship proved unsuccessful.
(d)	Ms Ball was not ignorant of her obligations, as her initial response to Mr A’s advances was ‘to deny them on the basis of her duty as a nurse’.
(e)	There is no meaningful mitigation in Ms Ball having asked others about the relationship which appears to have been done ‘more to find a justification or way to explore the relationship’ and, in any event, it was her own responsibility to act in accordance with professional standards.  
(f)	That the social relationship between Ms Ball and Mr A commenced between his admissions, and there was no intimate relationship until after Ms Ball ceased her employment at the Hospital, does not ‘mitigate the seriousness of the conduct in this case’.
27	In closing submissions, Mr Jellis (who represented the Board) said that Ms Ball’s conduct has to be assessed at the time that it took place and the fact that she and Mr A remain in a relationship ‘does not bear on the issue’.
28	Mr Jellis contended that it is unnecessary to give the exception envisaged in the Code (to the general prohibition on intimate relationships between nurses and their patients) a ‘large and generous scope’.  Further, whatever its content, Mr Jellis says this case does not fall within the exception given that:
•	Mr A was a long-term patient for whom Ms Ball had cared on multiple occasions.
•	Mr A suffers from a ‘horrible’ illness, was inherently vulnerable and looked to his nurses for support, which is a ‘paradigm power imbalance’.
29	Mr Jellis says it is a ‘radical proposition’ to suggest, and would set a ‘terrible example’ for the profession if, Ms Ball’s conduct did not amount to either professional misconduct or unprofessional conduct.
30	In relation to Ms Ball’s attempts to seek guidance as to her relationship with Mr A in July 2018, Mr Jellis added:
•	those attempts are of no assistance in circumstances where, in January 2018, she already knew (and was right) that she could not have such a relationship; 
•	the advice that she received from the senior clinical educator before she attended the dinner with Mr A was not requested or received in the context of a romantic relationship, and there was no suggestion that any such relationship was appropriate; 
•	from the time that she raised her romantic feelings with the Hospital, and then sought guidance from the ANMF and AHPRA, the inquiries were designed to ‘find ways to facilitate the relationship’; and
•	in any event, any attempts to obtain guidance are more relevant to the question of appropriate determinations than characterisation. 
31	Mr Jellis says that the fact that this case does not involve ‘predatory behaviour’, like many boundary violation cases, cannot support the proposition that Ms Ball’s behaviour does not amount to professional misconduct.
Ms Ball’s submissions
32	Ms Ball contends that the Code ‘does not prohibit sexual or romantic relationships’, but rather states that such relationships are inappropriate in most, but not all, circumstances.  Conversely, a nurse can engage in a relationship with a patient without that conduct necessarily amounting to professional misconduct or unprofessional conduct, noting the reference to ‘could’ in Principle 4.1(d).
33	It is submitted by Ms Ball that the scope and content of the exception to the general rule – that sexual and romantic relationships are inappropriate – is to be determined by reference to the underlying purpose of the National Law, being the protection of the public. This necessitates examination of whether the relationship has caused the patient to have a ‘detrimental outcome in terms of their medical treatment’, which would not be the case where the evidence establishes that:
•	The patient does not have any inherent vulnerabilities.
•	The nurse does not take advantage of any imbalance of power or trust in pursuing or procuring the relationship.
•	The nurse acts upon a genuine emotional or romantic connection with the patient, rather than in pursuit of any transitory sexual or emotional benefit.
•	The relationship does not cause any physical or emotional detriment to the patient.
•	The relationship does not negatively impact on the patient’s treatment.
•	The nurse takes steps to ensure that she or he is operating within the governing rules and ethical framework.
•	The patient does not make any complaint about the relationship.
•	The profession as a whole cannot be said to be undermined by the conduct in question.
34	Ms Ball contends that, having regard to those criteria, her relationship with Mr A ‘does fall within the exception and therefore does not constitute any form of misconduct’.
35	In closing submissions, Ms McKay (who represented Ms Ball) noted the following matters (referable to the criteria outlined above):
•	In terms of vulnerability, while Mr A has a chronic illness and therefore a degree of vulnerability, every patient has some vulnerability and ‘many are more vulnerable’.  In this regard, Mr A’s treatment was routine, involving regular nutritional treatment administration, and he was familiar and comfortable in the hospital environment.  Further, there is no significant age gap between Ms Ball and Mr A, and he did not suffer from any psychological illness.
•	Ms Ball did not seek to take advantage of her position, as in some of the cases involving mental health patients; rather, she was cautious and tried to ensure there would be no issues.
•	The nature of the professional relationship involved the administration of treatment prescribed by others, and Ms Ball was not involved in clinical decisions relating to Mr A.
•	It is apparent that the relationship between Ms Ball and Mr A is a ‘respectful, loving, consensual relationship’, which can be distinguished from cases involving practitioners seeking a transitory sexual or emotional benefit from their patients.   
•	Mr A has not made any complaint or suffered from any physical or emotional detriment; rather, he is angry and upset that he and Ms Ball need to account for their relationship.
•	There has been no (negative) impact on Mr A’s treatment, as he continues to receive his regular nutritional treatment at the Hospital.
•	Ms Ball took reasonable steps to ensure that the relationship was maintained within the appropriate regulatory framework.  Although it is accepted that she had decided to pursue the relationship when she raised the matter with the ward’s NUM, there was a ‘nuance’ in that the relationship had unfolded quickly, progressing from a permissible friendship to something more. Ms Ball thought that it was possible to have a sexual relationship with a patient, having regard to both the terms of the Code and her observations of other health practitioners, and tried to do the right thing.
36	In response to the Board’s suggestion that finding that there is no case to meet would set a dangerous precedent, Ms McKay submits that there would not be many cases where the exception would apply and that Ms Ball’s situation can be seen to be an ‘outlier’.
Analysis and findings
37	While it may be accepted that the Code ‘evidences’ the standard of ethical conduct expected of nurses in their dealings with patients, it is not appropriate to interpret it as though it was legislation, seeking to establish a precise delineation, or ‘bright line’, between acceptable and unacceptable behaviour.  By its very definition, ethics requires a moral judgement to be made.  Moreover, even if a nurse can do something, that does not mean it is ethical to do so.  
38	To her credit, Ms Ball recognised (in answer to a question from the Tribunal) that, ‘at some point’, she had made a mistake and crossed professional boundaries.  Thereafter, she was doing what she could to ‘make things right’.
39	In our view, the time at which professional boundaries were first crossed was in June 2018 when Ms Ball decided to engage in social media communications with her patient, Mr A, outside of their professional relationship.  The Tribunal has previously warned about the risks of engaging in electronic communication with patients, noting that the ‘casual or familiar style of communication … can quickly blur the line and mean that professional boundaries have been crossed, almost without noticing’.  
40	That error in judgement was exacerbated when Ms Ball continued to engage in some form of (non-professional) relationship with Mr A, by: 
•	inviting him to join her for what was clearly a personal activity, namely visiting her horse in country Victoria; and
•	accepting the invitation to dinner at his home.
41	By then, it is apparent that, like others that have crossed boundaries, Ms Ball was (adopting the words of Jenni Millbank in an article to which the parties referred us) ‘in too deep’, having developed the ‘overpowering wish to pursue the intimate relationship’.
42	We do not accept the proposition, put on behalf of Ms Ball, that Mr A is not particularly vulnerable or that his care has not suffered as a result of the crossing of the professional boundary.  
43	Mr A suffers from a chronic condition that results in frequent and sometimes lengthy hospitalisation, not limited to routine nutritional administration.  For example, he has been admitted for treatment of infections associated with his medical condition.  In his affidavit material, Mr A notes that his condition means that he has been receiving treatment in hospital since birth. Not unexpectedly, he has strong views about the hospital system, and sometimes expresses frustration about the nurses and doctors with whom he interacts. 
44	Mr A talks about developing feelings for Ms Ball as a result of the compassion and kindness that she demonstrated, particularly after the passing of a friend with a similar illness.  While his treatment regime was prescribed and overseen by the Hospital’s gastroenterologists, there is some evidence that he would speak to Ms Ball about his treatment. For instance, on 20 June 2018, he told her that he was ‘unsure of what he wants to do treatment wise’.
45	As a result of the relationship, Ms Ball has lost her position with the Hospital and Mr A has lost the benefit of her compassionate and kind nursing care.
46	We accept that:
•	Mr A was responsible for the initiation of the social media contact that led to the relationship; 
•	Ms Ball genuinely believed that some relationships between nurses and patients were permissible, based on her reading of the Code and her observations of other health practitioners; 
•	there is an absence of exploitation in the relationship between Mr A and Ms Ball; and
•	the relationship has continued to strengthen since the events in question.  
47	However, none of that means the conduct has not fallen short of the requisite standards because it is the risk of patient harm from a relationship between a health practitioner and patient that is the issue of concern. That risk is always present, even if the relationship appears consensual.  
48	An illustration of this risk is evident in the the evidence given by a patient who had a relationship with his psychologist to the New South Wales Civil and Administrative Tribunal in Health Care Complaints Commissioner v Ledner: 
Initially I did not feel there was a power imbalance between [the psychologist] and I.  I fel[l] quite hard for her.  I now realise that she had complete control over me, for example, if we argued she would bring up things I had confided to her during counselling.
49	Of course, the treating relationship between a nurse and patient differs somewhat to that between a psychologist and patient.  Nevertheless, nurses are privy to the full medical history of their patients, and patients would rightly be concerned with the potential for the information obtained by their nurses in the healthcare setting to be later used to their disadvantage.        
50	While Ms Ball did make attempts to obtain guidance about her situation, we do not consider this shifts the conduct from inappropriate to appropriate.  In this regard, we observe that:
•	on her own evidence of the interactions with Mr A in January 2018, she was clearly aware that there was an issue with a nurse having a relationship with a patient; 
•	she first attempted to seek guidance after she had already engaged in social media and telephone contact with Mr A, and had invited him to visit her horse;
•	the advice from the senior clinical educator was non-committal (ie. ‘it should be okay’) and provided in the context of a friendly dinner.  It could not reasonably be taken to condone a romantic or intimate relationship with a patient; and
•	while it seems surprising that even the NUM was initially unaware of the requirements of the Code, it remained Ms Ball’s obligation to inform herself about and comply with that Code.
51	We are comfortably satisfied that the conduct, as particularised in the Notice of Allegations was below the standard reasonably expected of Ms Ball by the public and her peers and therefore amounts to unprofessional conduct.  
52	The remaining question is whether the conduct was ‘substantially’ below that standard, such that it amounts to professional misconduct.  As Ms Millbank observes in the article previously referred to, decisions involving sexual relationships between health practitioners and former patients have ‘overwhelmingly resulted in a determination of professional misconduct’. This is so, even where:
•	the relationship was initiated or pursued by the patient; or
•	the health practitioner is young and inexperienced.
53	We have only been able to identify one VCAT case where a boundary violation was found to fall short of professional misconduct, namely Medical Board of Australia v Petrovic.  However, that decision was in the context of a relationship that had commenced through a workplace friendship, rather than in a clinical context.  (Similarly, in Health Care Complaints Commission v Eftimoski, a longstanding pre-existing relationship between a dentist and patient resulted in a finding of unprofessional conduct rather than professional misconduct.)
54	In the present case: 
•	the conduct in question clearly started while Mr A was still a patient of the Hospital at which Ms Ball worked and where she was providing, or would inevitably come to provide, care to him;  
•	Ms Ball was an experienced nurse, in her eighth year of practice; and  
•	Ms Ball clearly knew that she was not meant to have relationships with her patients.  
55	In our view, the fact that Ms Ball nevertheless allowed the situation to develop into a personal and then intimate relationship represents conduct ‘substantially below the standard reasonably expected’.  This is supported by the Tribunal’s decision in Chiropractic Board of Australia v Allen where the Tribunal observed that the newly registered chiropractor had ‘completely failed to recognise the risks to [the patient] of their relationship developing out of the brief chiropractic relationship’, leading to a finding that the conduct was substantially below the standard reasonably expected.
56	That Ms Ball and Mr A remain in a relationship is not relevant to the characterisation of the conduct at the time it occurred.  There are a number of cases where findings of professional misconduct have been made where this is the case. 
57	Accordingly, we find that the conduct particularised in the Notice of Allegations amounts to professional misconduct.

R. Tang, AM
Presiding Member	M. Archibald PSM
Health Practitioner Member	P. Barry
Health Practitioner Member