VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
review and regulation LIST	
vcat reference No. Z837/2018	
CATCHWORDS	
Review and Regulation List – referral to Tribunal under the Health Practitioner Regulation National Law Act 2009 – allegations concerning boundary violations in respect of two patients who were receiving in-patient psychiatric care – whether the respondent nurse failed to maintain boundaries – allegations of inappropriate personal communications and physical contact, including sexual contact – alleged inappropriate contact said to have occurred during hospital admissions and between hospital admissions – credit of patients and respondent nurse – whether allegations proven to the required standard.	

APPLICANT	Nursing and Midwifery Board of Australia	
RESPONDENT	Darren Laycock 	
WHERE HELD	Melbourne	
BEFORE	A Dea, Senior Member
M Archibald PSM, Member
P Barry, Member	
HEARING TYPE	Hearing via videoconference 	
DATE OF HEARING	28 and 29 April 2021 	
DATE OF FINAL WRITTEN SUBMISSIONS	2 June 2021	
DATE OF ORDER and reasons	20 July 2021	
CITATION	Nursing and Midwifery Board of Australia v Laycock (Review and Regulation) [2021] VCAT 782	

Orders 
Having found all but one of the particulars of the allegations referred to the Tribunal proven and having found the factual matters in those two allegations proven, the Tribunal orders that: 
1	By 17 August 2021, the applicant must send the Tribunal and the respondent submissions on characterisation of the proven conduct under section 196(1)(b) and the determinations to be made under section 196(2) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Submissions on Characterisation and Determinations).
2	By 14 September 2021, the respondent must send the Tribunal and the applicant his Submissions on Characterisation and Determinations.
3	By 28 September 2021, the applicant may send any submissions in reply.
4	By 5 October 2021, the parties must write jointly to the Tribunal with at least three dates all relevant participants are available for a further hearing, including their joint estimate of the time required. 

The Tribunal records that on 16 January 2019, the Tribunal made orders under the Open Courts Act 2013 (Vic) that:
1	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 patients the subject of these proceedings and the notifiers to be identified must not be published or otherwise disclosed.  
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 people referred to in order 1.

A Dea
Senior Member and Presiding Member	M Archibald PSM 
Health Practitioner Member	P Barry 
Health Practitioner Member	

APPEARANCES:		
For Applicant	Ms F Holmes, counsel	
For Respondent	Ms D Price, counsel	

Reasons
Overview 
1	In 2014 and 2015, Mr Darren Laycock, an enrolled nurse, was working in a psychiatric unit within a private hospital.  From time to time, over the period March to August 2015, he provided nursing care to two female patients.  
2	In August 2015, those patients each made allegations he engaged in a sexual relationship with them and that there was sexual contact between them in their rooms in the hospital and outside the hospital.  They made statements to police and the allegations were referred to the Australian Health Practitioner Regulation Agency (AHPRA) and, through it, to the Nursing and Midwifery Board of Australia (Board).  
3	On 14 September 2015, an Immediate Action Committee of the Board decided to suspend Mr Laycock’s registration.  He has not worked as a nurse since.
4	Mr Laycock was arrested and charged with offences, including rape, against both patients.  A Committal hearing was held in December 2016 and, as we understood it, Mr Laycock was committed to stand trial.  We were informed that, in around mid-2017, the charges were discontinued.  
5	The Board investigation into the notifications had been placed on hold while the criminal processes were undertaken.  The investigation recommenced after the charges were discontinued.  In September 2018, the Board referred two allegations about Mr Laycock to the Tribunal, seeking findings of professional misconduct (the Allegations).  
6	The Allegations do not contain express allegations of sexual assault or rape, although one allegation includes descriptions of unwanted sexual contact.  Leaving that aspect to one side, the allegations are largely concerned with what is known as ‘boundary violations’ arising from Mr Laycock’s behaviour as a nurse towards his then patients.  That behaviour includes him befriending the two patients, having telephone and text communications with them, kissing and touching them and engaging in sexual activity.  
7	At an early stage, Mr Laycock conceded he had texted and spoken with one of the patients outside the clinical relationship.  However, at all times, from when the allegations were raised with his employer, through the criminal process and up to the commencement of the hearing before us, Mr Laycock denied all other allegations of boundary violations.  For the first time, in his evidence before us, he conceded he had engaged in some kissing and sexual touching with one of the patients.  He also conceded that certain text messages were likely sent by him.
8	We had the notifications the two patients made to AHPRA as well as statements they made, starting in September 2015 and ending in witness statements made in this proceeding in December 2018.  Both patients gave evidence before us.
9	Mr Laycock’s earlier responses to the Board, including through solicitors, suggested the patients had colluded to manufacture the allegations, referring to similarities in what they said.  The evidence before us did not bear that alleged collusion out.  Once we had assessed each Allegation and all the particulars individually against the evidence before us, we were satisfied that Mr Laycock was the source of the commonalities in the patients’ descriptions of what happened – he was the common denominator.  
10	We were comfortably satisfied that both patients were witnesses of truth.  Their descriptions of what happened have been consistent over the past six years.  They were not challenged on that matter in cross-examination and there was limited challenge made to the detail of the events they described. No challenge was made to their memories of the critical events. 
11	In contrast to the two patients, Mr Laycock was a most unimpressive witness.  We reached that view even allowing for the fact that he had experienced anxiety in the past and accepting that the Board processes and the hearing before us were inherently stressful.  
12	Mr Laycock said his earlier statements, as compared to his evidence before us, had not contained lies but rather ‘incomplete truths’ and ‘less than full’ disclosures.  He explained he had decided to be ‘more open about [his] feelings’ in his evidence at the Tribunal.  
13	As discussed below, his feelings were not in issue – rather, we were asked to and have focussed on the facts of what occurred.  In doing so, mindful of the seriousness of the allegations and the standard of proof to be applied, we found ourselves comfortably able to accept the evidence of the two patients and reject that of Mr Laycock.  
14	We have found all but one of the factual matters contained in the allegations proven (Allegation 1, particular (viii)(C)(IV)).  The next step is to hear from the parties about whether the relevant conduct amounts to professional misconduct under the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (National Law) and what determinations ought then be made.  
15	As indicated above, on 16 January 2019, the Tribunal made orders to protect the identities of the two patients, those persons who made notifications about Mr Laycock’s conduct to AHPRA and others who were involved in the events.  For that reason, we refer to the patients as ‘Patient 1’ and ‘Patient 2’ and have used non-identifying descriptors for other persons and locations.  
16	It was apparent that, at the time Mr Laycock was their nurse and over the relevant period, both patients were very unwell.  It appeared that, by the time of the hearing, they were both far better despite the challenge of having to give evidence about those past events.  
17	We record that the hearing of this matter has been delayed in part because Mr Laycock has not always been legally represented and there were times when he was not engaged in the process.  
18	We start by summarising the Allegations and the 44 particulars before us.
The Allegations 
19	The Allegations before us were attached to the Board’s letter of referral to the Tribunal dated 11 September 2018.  The Allegations are set out in full in Attachment A to these Reasons (in de-identified form).  We refer to each Allegation and the particulars below when discussing the relevant evidence.
20	The broad Allegations were that, in respect of both Patients, Mr Laycock failed to maintain the boundaries that should, and ordinarily do, delineate the relationship between a nurse and his patient and/or former patient, being a person who is or has been previously under his care.
21	On the morning of the hearing, we received an agreed statement of facts from the parties (Agreed Statement).  That document largely covered background material but it also indicated those factual matters contained in the Allegations which Mr Laycock agreed were correct.  Those items are marked with an * in these Reasons and in Attachment A.  It is sufficient to say for now that Mr Laycock agreed that:
•	At all material times he was an enrolled nurse and was employed at the relevant hospital (referred to as ‘the Hospital’);
•	Patients 1 and 2 were admitted to the Hospital on the dates contained in the particulars; 
•	He provided clinical care to Patients 1 and 2; and 
•	During Patient 1’s second admission, in April and May 2015, he: 
o	Provided her with his personal mobile phone number without clinical justification; and 
o	Engaged in telephone conversations and exchanged text messages which were unrelated to her clinical care.
22	In broad terms we can indicate that, in respect of Patient 1, it was alleged that:
•	At various times, Mr Laycock kissed her in her room at the Hospital and engaged in other sexual activity in her Hospital room, including touching her breasts, digitally penetrating her, and placing his penis in her mouth;
•	On two occasions (in June and August 2015, including once after an outpatient appointment), while in a car parked in a street near the Hospital, Mr Laycock kissed her, asked her to perform oral sex (and she did so); and 
•	In July 2015, they met at a shopping centre near Mr Laycock’s house and then he drove her to his home (having left his children in bed asleep) and engaged in sexual activity.
23	In respect of Patient 2, the broad allegations included that:
•	Mr Laycock provided her with his personal mobile phone number when there was no clinical reason to do so and then communicated with her on matters unrelated to her clinical care;
•	At various times over the period March to August 2015, Mr Laycock kissed her in her room at the Hospital and engaged in other sexual activity in her Hospital room, including touching her breasts, digitally penetrating her, placing her hand on his crotch, asking her to perform oral sex and manoeuvring her head towards his crotch following which she performed oral sex on him; and 
•	On 23 March 2015, Mr Laycock arranged to meet her in a local shopping centre (while Patient 2 was on short day leave from the Hospital) and then drove her to a park where, while on a park bench, he kissed her on the lips and breast and placed her hand on his crotch.  Also at that park, Mr Laycock led her to a disability toilet block where he attempted to perform oral sex on her (when she said she did not want him to), asked her to perform oral sex on him (which she refused) and attempted to engage in sexual intercourse with her (when she said she did not want to) (the Park Incident).
The burden and standard of proof
24	It is evident from the terms of the Allegations that they concern very serious matters.  
25	In a matter such as this, the onus of proof of the Allegations falls on the Board.  It is well established that the applicable standard of proof is the balance of probabilities, informed by Briginshaw v Briginshaw, and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.
26	We adopt the way in which Mr Laycock’s counsel described our task in her written submissions.  That is, at all times the Board bears the onus of proof, and must prove its case on the balance of probabilities, as discussed in Briginshaw.  Findings of fact must be proved to the reasonable satisfaction of the Tribunal having regard to the seriousness of the allegations, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding.  The required level of satisfaction is often referred to as ‘comfortable satisfaction’ – we have utilised that terminology in these Reasons.
27	In this proceeding the alleged misconduct is of a serious kind, being sexual contact allegedly occurring between Mr Laycock and Patients 1 and 2.  While the Board did not expressly allege that the sexual contact was without the consent of the Patients, the mere allegation of sexual contact between a nurse and patient remains inherently serious.  Therefore, the Tribunal should apply a high degree of scrutiny to the evidence relied upon by the Board.  With that premise in mind, the written submissions drew particular attention to the fact some of the particularised events involving Patient 2 indicated she did not agree to certain sexual contact.  
28	The submissions confirmed that Mr Laycock had acknowledged that he breached the expected boundaries between nurse and patient in respect of both Patients 1 and 2 by engaging in telephone conversations unrelated to their clinical care and, on several occasions, kissing and touching Patient 1.  However, he otherwise denied the Allegations. 
29	As mentioned earlier, the factual aspects of Allegation 1 do not refer to consent, or a lack thereof, and nor do they include allegations that the sexual interactions were unwanted or that Patient 1 was coerced.  We were required to decide whether they occurred as particularised on the specified dates and in the specified locations based on the evidence before us.  
30	Allegation 2 contains words which indicate Patient 2 said she did not want certain sexual activity to occur and, on one occasion, she refused to perform oral sex.  We have had careful regard to the burden and standard of proof when considering all of those matters.  
31	Given the number of particulars for each Allegation concerning each Patient and the inherently serious nature of each, it has been necessary for us to consider the alleged events carefully and independently of the others.  We have considered the events involving the two Patients separately.    
32	In its written submissions in reply, the Board contended that there was unfairness in some of written Mr Laycock’s submissions because it had not been put on notice of certain inferences we were asked to draw and certain matters had not been put to the Patients during cross-examination.  That was particularly the case when it came to questions of credit.  As the Board carries the burden of proof in this proceeding, the fairness of Mr Laycock’s submissions or whether he put matters to the Patients is less relevant than the totality of evidence placed before us.  As indicated that evidence came through the various statements the Patients made, their evidence-in-chief, in cross-examination and in re-examination.  We also had Mr Laycock’s responses to the Board/AHPRA and his evidence-in-chief and cross-examination.  We have weighed all of that evidence before making our findings.
The material before the Tribunal
33	In advance of the hearing, the parties jointly filed a Tribunal Book which contained the two Patients’ witness statements in this proceeding and other witness statements.  It also contained the statements made to Victoria Police and the transcript of the Committal hearing.  The Tribunal Book included the investigation related documents including correspondence between the Board/AHPRA and Mr Laycock.  It contained telephone records and copies of text messages.  After the hearing, written submissions as to findings of fact were filed.
34	There was some discussion at hearing about what documents in the Tribunal Book were to be relied on and which were to be regarded as before the Tribunal.  After the hearing, the Board’s solicitors sent an email stating the whole of the Tribunal Book ought to be treated as before the Tribunal and then listing the following specific documents:
•	Letter of referral of Notice of Allegations;
•	The notifications made to the Board;
•	Submissions made on behalf of Mr Laycock, dated 11 September  2015, 4 October 2017 and 6 April 2018;
•	Witness statements of the Director of Nursing at the Hospital in the relevant period (the Director of Nursing) and Patients 1 and 2;
•	Victoria Police brief of evidence, including certain statements from other persons, including Patient 1’s partner, Patient 2’s former partner, other Hospital patients and a text message extraction report; 
•	Documents produced by Telstra Corporation Limited (Telstra) pursuant to a summons;
•	An affidavit of the Board’s solicitor, Ms Jialing Chen, containing summary tables of the telephone records (the Tables); and
•	The Agreed Statement.
35	In written submissions, Mr Laycock’s counsel stated he did not agree with the Board’s broad approach, saying that the Tribunal should know with certainty what documents are in evidence, and what are not.  As an example, the submissions said there was no suggestion that medications prescribed to the two Patients were relevant to the Tribunal’s task, and so the medical notes and doctors’ reports contained in the Tribunal Book ought not to be considered or placed into evidence.  Similarly, it was suggested that the Tribunal could not be expected to consider or rely on the over 2,000 pages of ‘unintelligible’ telephone records.  
36	Mr Laycock submitted that we should have regard to the documents contained in the Board’s list, except for the detailed Telstra records and instead rely on Ms Chen’s affidavit and its annexures which extracted the relevant parts of the Telstra records.  We were also asked to accept into evidence the statement of a nurse (referred to as Nurse 1 in these Reasons) and a letter from Mr Laycock’s general practitioner.  The submissions proposed that no other part of the Tribunal Book ought to be received into evidence or considered.
37	While it was suggested the parties would confer and may provide an agreed position on the question, no such agreed position was received.
38	As will become apparent, we have had primary regard to the documents listed by the Board and have also considered those referred to in Mr Laycock’s submissions.  We have relied on Ms Chen’s affidavit, rather than the detailed Telstra records.  
39	We have had regard to the medical evidence in a limited way.  At the end of the first day during discussion with counsel, a question about the effect of Patient 1 and 2’s drug regimens and memory was raised.  We were told that was outside the purview of what the Tribunal has to determine. We record Mr Laycock’s written submissions contained no reference or challenge to Patient 1 or 2’s memories and no such questions were asked in cross-examination.  
40	In those circumstances, we have had regard to statements prepared by the Patients’ treating psychiatrists so as to understand the nature of their illnesses and the medication they were taking at relevant points in time.  The medication was relevant as background to those parts of the particulars of the Allegations which indicated the Patients felt particularly drowsy or sedated, especially at night time.  Also, it assisted us as the patients’ conditions were referred to from time to time in evidence, including in that given by Mr Laycock.  
41	We have had regard to other documents in the Tribunal Book which have assisted to clarify dates and other uncontroversial factual matters.  Those have been footnoted in our Reasons.
42	On the morning of the hearing, a letter dated 10 April 2018 from a medical practitioner was produced (April 2018 Dr Letter).  The medical practitioner confirmed they had cited photo identification from Mr Laycock and examined him.  That Letter stated that Mr Laycock:
•	Had dimpled looking scars on his upper back down to his lumbar back which could be old acne scars;
•	Had a surgical scar on the right scapular region – Mr Laycock advised he had a cyst removed from there; and 
•	Was circumcised – that is, he had an absence of a foreskin.
43	We referred earlier to the criminal charges for which Mr Laycock was committed to stand trial but which were ultimately discontinued.  No specific explanation as to why was provided and so we have disregarded the outcome of those proceedings.  
44	For completeness, we record that Mr Laycock did not invoke section 105(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) when giving evidence.  That section provides that if a witness claims, before answering a question or producing a document, that the answer or document might tend to incriminate them, the answer or document is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.
Overview of these Reasons
45	These Reasons are lengthy.  That is because, although the Board’s Notice of Allegations contains only two Allegations, that which relates to Patient 1 has 23 substantive particulars and that which relates to Patient 2 has 21 particulars.  
46	The Reasons are repetitive at times.  In part because there was evidence before us which was relevant to a number of the individual particulars and also because evidence went to the credit of the witnesses.  It has sometimes been necessary to repeat material to make the Reasons more readable without the need to cross-reference back and forth.  
47	We have started by discussing the credit of Patients 1 and 2 and Mr Laycock.  That is because, our assessment of their credit and the reliability of their evidence has been critical to the findings on the particulars which all involved evidence of the ‘he said/she said’ variety.  We have done that by referring in some detail to those parts of the evidence we considered revealed the witnesses’ honesty and reliability.  Necessarily, we have then revisited that evidence in the context of the particulars and our fact finding task.  
48	After dealing with the credit of the witnesses, it was convenient to deal with the evidence about the various telephone records which were the subject of evidence, as that was relevant to the background of the more substantive factual questions.  
49	After that, we have addressed the particulars of each Allegation.  As will be seen, we have included significant amounts of evidence from the Patient’s past statements and their evidence at the Tribunal when discussing the particulars.  That is because, while the particulars are brief, they can only be properly understood and assessed in context.  As we gave great weight to the consistency of the Patient’s evidence over the last six years and their evidence about how the relevant interactions came to occur, it was necessary to set that out to disclose our reasoning and conclusions.   
The credit of the witnesses
50	As no challenge was made to the Director of Nursing’s evidence as to dealings with Patients 1 and 2 once concerns about Mr Laycock’s conduct was raised with the Hospital in August 2015, we have accepted that evidence.  
51	Matters relating to the credit of Patients 1 and 2 and Mr Laycock arose in the context of specific alleged conduct, aspects of that conduct and surrounding contextual material. 
Patient 1
52	The materials show that, during the period November 2014 and August 2015, Patient 1 was diagnosed with major depressive disorder and anxiety disorder.  She was treated as a voluntary patient at the Hospital for those issues.  She was admitted to the Hospital three times over that period and received inpatient treatment for a total of around eight and a half weeks.
53	In these Reasons we have referred to Patient 1 struggling with alcohol and self-harming.  At one point she was suicidal.  In her Statements there are references to the effects of medication and how they made her feel drowsy, especially at night. 
54	Mr Laycock’s written submissions sought to cast doubt on Patient 1’s credit because of matters going to their relationship and her characterisation of it, her reaction to discovering allegations Mr Laycock was involved with another patient and how she communicated with him after that disclosure.  Submissions were made that her evidence of sexual activity in the Hospital and in a car on a suburban street ought not to be accepted because of the unlikelihood that Mr Laycock would have engaged in such risky behaviour.  There were questions about her knowledge of Mr Laycock’s body.  It was contended that Patient 1 had exaggerated the degree of contact between them.  In his earlier responses to the Board/AHPRA Mr Laycock suggested that Patients 1 and 2 had colluded in making allegations against him.  We deal with each of those matters.
The relationship with Mr Laycock
55	Patient 1 confirmed in her evidence that, from early in her dealings with Mr Laycock in her Hospital admission in late 2014, they talked about their everyday lives and that extended to Mr Laycock talking about his own as well as her mental health issues.  Patient 1’s evidence was that while it was usual for her to talk to treating nurses about her issues, he was the only one who talked about their own problems.  
56	When giving evidence, Patient 1 was resistant to conceding she had romantic feelings for Mr Laycock.  While she accepted that texts with content which suggested he leave his wife and expressed a wish for them to be together sounded like she did, she said she was not serious.  She gave evidence she would not have left her partner for Mr Laycock.  She also conceded that the text messages could have come across as suggesting she had a sexual or romantic interest in Mr Laycock or that he may have perceived them in that way.  
57	Patient 1 agreed she was very dependent on Mr Laycock for support.  It is not appropriate to detail the evidence about Patient 1’s circumstances as it may identify her, but it is sufficient to say that around the relevant time: she had small children and was separated from the children’s father; she lived some distance from her workplace and so several hours travel was required each day; she lived with an older relative who had little understanding of mental health issues; and she felt she had very little support.  As is apparent from the below evidence, Patient 1 was in a relationship with another man during the relevant period and, as foreshadowed above, used alcohol excessively at the time.
58	In Mr Laycock’s written submissions, reference was made to the various text messages between them which, on their face, indicated Patient 1 had romantic feelings towards the Respondent.  For example, in one she said ‘[w]hy do you have to be married I feel so close to you’.  In others she referred to loving and missing Mr Laycock.  In yet others, Patient 1 sent message saying that she wished he was not married, saying she wishes he would leave his wife, asking what future they had and signing off with kisses and hugs (‘xx’ and ‘oo’).  
59	A large part of the cross-examination of Patient 1 focussed on these matters.  There were questions about Patient 1’s evidence to the effect that she relied on Mr Laycock for support and that, at times, she went along with sexual activity to ensure that support continued.  She was asked about the degree to which she provided support to Mr Laycock and assisted him when he was struggling with his mental health and relationship issues.
60	Mr Laycock’s submissions contended that Patient 1’s refusal to acknowledge having romantic thoughts and feelings was a matter which significantly diminished her credibility. 
61	Those submissions sought to contrast Mr Laycock’s evidence about the boundary violations he admitted had occurred – that evidence was described as including a ‘confession’ that he had developed romantic feelings for Patient 1 and that, on at least three occasions, they had kissed and touched each other’s bodies in Street A.  It was submitted that his ‘frank acknowledgement’ of the feelings he had towards Patient 1, as revealed in the messages, was a matter which enhanced his credibility. 
62	The submissions suggested that Patient 1’s evidence exaggerated the degree of physical contact between her and Mr Laycock.  The submissions said the following (footnotes omitted):
13. 	Whilst it is not incumbent upon [Mr Laycock] to prove why [Patient 1] might lie or exaggerate, possible reasons are contained within the Tribunal Book.  On around 7 August 2015 [Patient 1] messaged [Mr Laycock] to tell him she would be admitted to the Hospital again.  When he does not immediately reply [she] says ‘[s]orry I guess you don’t care’.  He then replies to her and she later apologises ‘I’m sorry I love you’.  [Patient 1] is then admitted on 11 August 2015, and shortly afterwards sends messages such as ‘I’m in the shower come and see me before you leave I wanted to be with you so badly.  I promise I will do the homework for me and for you.  I will see you Sunday’, and later ‘I miss you too and I honestly will try to prove to you that I can do this Xx’.  Shortly afterwards, on 13 August 2015, [Patient 1] learns there is an allegation that [Mr Laycock] has kissed another patient [Patient 2].  
14. 	Upon hearing this allegation [Patient 1’s] messages to [Mr Laycock] change markedly.  She is understandably angry and upset.  She messages him ‘I just got told you kissed another girl in here and your (sic) in big trouble as another patient is telling [a nurse manager].  I can’t believe you I thought you gave a shit obviously you just used me’ and later that ‘[y]ou have no idea how upset I am right now the patient told me’.  It was apparent in evidence that [Patient 1] remains angry with [Mr Laycock].  [Patient 1’s] anger towards [Mr Laycock] is a reason why the Tribunal should not readily accept her account of her interactions with [Mr Laycock].  The Tribunal could not exclude that her account is significantly exaggerated, perhaps in part due to her anger and hurt at the boundary violation committed by [Mr Laycock], and her belief that he had betrayed her by kissing another person.  
15. 	This likely exaggeration is also supported by the complaint evidence.  Sometime in August 2015 [Patient 1] told [another patient at the Hospital] that [Mr Laycock] had kissed her.  Similarly, in February or March 2015 she told her partner . . . that there was, in his words, ‘inappropriate interaction’ with [Mr Laycock], which he took to be giving her a hug and kissing her on the cheek.  It was not until after [Patient 1] learnt of an allegation that he had kissed another patient, and the Hospital authorities became involved, that [Patient 1] told [Patient 4] that they had sex on one occasion at his home and she subsequently made more extensive allegations to the Hospital and Victoria Police.  It is significant that [Patient 1’s] story only contains allegations of penetrative sexual activity or conduct occurring at his home after learning of his alleged conduct towards another patient.  
63	We record the patient mentioned above who told Patient 1 about Mr Laycock kissing someone else (referred to in these Reasons as Patient 4) made a statement to Victoria Police in December 2015.  She is now deceased.
64	In its reply submissions, the Board contended that the Tribunal would fall into error if it accepted the above submissions.  It noted that those matters were not put to Patient 1 and it was not at any time suggested to her that she was not to be believed with respect to her allegations, that she was lying, nor that her memory was adversely affected in any way.  The Board submitted that the requirements of natural justice did not allow the Tribunal to form the conclusion sought by Mr Laycock in circumstances where the Board and Patient 1 had not been afforded due notice of the differing version that was being proffered on Mr Laycock’s behalf.
65	The Board further submitted that, far from being discredited with respect to the issue of her feelings toward Mr Laycock at the time, Patient 1 gave cogent and credible evidence in relation to that matter.  The submissions noted that Patient 1 admitted that the context of the text messages gave the appearance that she and Mr Laycock were expressing feelings of romance and sexual interest in each other and, further, that her behaviour was indeed ‘suggestive of the promise of something more’.  The submissions stated that Patient 1 explained her reticence to concede that she did in fact have romantic feelings for Mr Laycock was based on the fact that the relevant time period was a ‘very challenging part of [her] life’ and that she ‘didn’t have people around [her] that [she] could go to for support’.  She further conceded that she had wanted to [at the time] to maintain the ongoing support Mr Laycock was offering that she could not find anywhere else.
66	The submissions also referred to Patient 1’s express rejection of the proposition in cross-examination that her interactions with Mr Laycock were ‘a relationship between two people who have a romantic interest in each other’ because, as she stated in her evidence, she saw it as a ‘grooming type relationship’ which emerged when she ‘was in a very vulnerable position in [her] life where [she] had gone to treatment in hospital’.
67	The Board submitted that it would be an error for the Tribunal to consider that Patient 1 may be exaggerating the extent of sexual activity which occurred between her and Mr Laycock because of anger at or hurt by Mr Laycock, in circumstances where each of the following matters were not put to Patient 1:
•	That Patient 1 was angry at Mr Laycock at the time that she learned that he had allegedly kissed another patient;
•	That, at the time of the hearing, Patient 1 was angry at Mr Laycock and hurt at the boundary violation or because of her belief that he betrayed her by kissing another person; or
•	That Patient 1 exaggerated the contact between herself and Mr Laycock on the basis of the above.
68	We agree with the Board’s summation of the evidence relevant to Patient 1’s credit on the question of the nature of the relationship with Mr Laycock.  It accorded with our own observations.  
69	We were satisfied that, on and from her second Hospital admission in late April 2015, Patient 1 sent Mr Laycock text messages (and likely communicated verbally in a similar style from time to time) which, to an objective observer, would have sounded like she was romantically attached to him, wanted a relationship with him and was sexually interested in him.  We agreed that in her evidence, Patient 1 sought to cast her and Mr Laycock as more concerned with friendship rather than a romantic or sexual relationship.  We have some difficulty with that proposition, given Patient 1 attended Mr Laycock’s home in July 2015, apparently aware sexual activity was likely.
70	However, we were also satisfied that the communications and interactions happened at times when Patient 1 was seriously mentally unwell and was suffering mental distress, the latter evidenced by her alcohol consumption particularly in early July 2015 and being the reason for her re-admission about a month later.  
71	At one point in the cross-examination, Patient 1 referred to having ‘a few confused feelings’.  Later she was asked what her intentions as to Mr Laycock were.  She responded saying she did not really know, that she was extremely unwell and that she did not know what she intended.  
72	We accept that latter evidence was likely accurate and that, while the communications indicated Patient 1 was more attached to Mr Laycock than as a friend, at the time she had not formed a clear picture of what she wanted from him and whether she wanted to leave her partner for Mr Laycock.  
73	The evidence contained text messages Patient 1 sent to Mr Laycock on the day she was told he had been involved with another patient and soon thereafter.  Those texts included the following:
Patient 1: 	I just got told you kissed another girl in here your (sic) in big trouble as another patient is telling [nurse manager].  I can’t believe you I thought you gave a shit obviously you just used me.
So seriously if this is true leave me alone
Mr Laycock: 	Not true talk later
Patient 1: 	You have no idea how upset I am right now the patient told me
Mr Laycock: 	Talk later please
Patient 1:		Fine you better call me 
Mr Laycock: 	Please call.
	[then referred to: starting to see a medical practitioner and having ‘officially given 3 weeks notice to work’; asking her to call after 9pm that night; suggesting she move in with her partner and sharing access to her children; and then]
	Still very close to you sorry for being a screw up I’m also a bit messed up
	I will also work hard to be a better person once again sorry
Patient 1:	I’m hurting so much I can’t stop crying
Mr Laycock: 	Please call
	. . . 
	Please leave it until tonight
Patient 1:	Ok I’m not too good though
	[then referred to speaking with the nurse manager and that person being in her room]
	You can’t ever talk to me they know everything someone told them they walked in yesterday I’m sorry they are blocking your number on my phone
	I’m sorry
	[then later that day]
	I have unblocked you I just wanted to say I didn’t want to say anything I was forced by [psychiatrist and nurse manager].  I’m sorry from the bottom of my heart.  I know you hate me.
Please can you respond and say I hate u
74	The evidence showed Patient 1 had been told by another patient (Patient 4) that Mr Laycock had been involved with another patient (Patient 2).  Patient 3 made a statement that Patient 1 told her that she and Mr Laycock had kissed but nothing more.
75	Patient 1 said she was in shock at that time, upset, confused and ‘devastated’.  She said that was not for the reason Mr Laycock’s counsel thought (presumably upset at a personal betrayal or due to jealousy) but rather because she became aware of the breach of trust and wondered how many other patients there were.  
76	We reject the contention that Patient 1’s complaints about Mr Laycock’s behaviour or the reason for her reporting what had happened between them to the Hospital in August 2015 was due to simple jealousy.  In our view, the content of the above texts and the evidence before us showed a confused mix of emotions including anger at Mr Laycock and then self-blame.  
77	In her Police Statement, Patient 1 said she felt Mr Laycock had taken advantage of her vulnerability and abused her trust.  
78	In her AHPRA Statement, Patient 1 said:
Originally I did not want to speak to any of the nurses or doctors about what had happened because I was ashamed.  I also felt that I did not have any other support and did not want to get Mr Laycock into trouble.  I did not want his children to suffer for something he did.  His wife was also a nurse on the ward and I was worried what was going to happen with her, and that maybe she was going to react badly while I was still a patient on the ward.
79	In her Witness Statement, Patient 1 referred to being groomed by Mr Laycock. 
80	We are not persuaded the above evidence demonstrated that over the past six years Patient 1 has exaggerated or concocted evidence against Mr Laycock.  
The likelihood of sexual contact in the Hospital and in a car
81	Mr Laycock’s written submissions suggested it was implausible that the sexual contact said to have occurred in Patient 1’s room at the Hospital was not observed or overheard by someone else.  That sexual contact was said to have included Mr Laycock touching Patient 1’s breasts under her clothing, digitally penetrating her and having her perform oral sex on him.
82	The submissions noted the Unit had a total of 44 to 45 beds and was staffed by a number of health practitioners, a number of whom would have been on shift at relevant times.  The submissions emphasised that no person saw or heard any inappropriate contact between Mr Laycock and Patient 1.  It was submitted that it was inherently implausible that Mr Laycock would kiss, touch and engage in sexual intercourse within the Hospital when the risk of discovery would be high.  That was said to be a strong reason why the allegations have not been proven to the requisite standard.  Mr Laycock’s insistence that they would instead meet at Street A outside of the Hospital was said to be much more probable.  
83	As to Patient 1’s claims of there being oral sex in a car in Street A, Mr Laycock’s submissions contended that Mr Laycock’s description – namely that on at least three occasions they met on foot, kissed and touched each other’s bodies over their clothing – was more probable than that of Patient 1.  That was said to be the case as two people kissing and cuddling on a quiet residential street would arouse no particular attention by residents or passers-by.  However engaging in oral sex in a parked car in ‘broad daylight’ was described as being highly risky, so much so that the Tribunal could not be comfortably satisfied that such an event occurred.  
84	In response, the Board submitted:
•	It was not put to Patient 1 at any time in cross-examination that the locations where the relevant events were said to have occurred made her account less probable and Mr Laycock’s account more probable.  The Board submitted that the Tribunal would therefore fall into error if it were to accept that assertion;
•	Mr Laycock’s statements as to the plausibility of sexual contact occurring in the hospital were highly speculative only on the part of Mr Laycock’s counsel.  Mr Laycock did not give any direct evidence as to the busyness of the Hospital at different times of the day, or the structural logistics of the ward which would facilitate or encumber discovery of the alleged conduct and thus make the fact of the conduct occurring more or less plausible.  Nor were these matters put to Patient 1 in cross-examination; 
•	The Tribunal would fall into error if it were to take into account Mr Laycock’s submissions as to the structure of the Hospital, to the extent that this is not in evidence in the proceeding; and
•	The Board submitted the premise to the submission as to the likelihood of sexual conduct in a car being unnoticed was not based on fact.  It was Patient 1’s evidence that, on the occasions when she performed oral sex on Mr Laycock in the car, it was not dark, but that it was ‘after work – towards the 5 o’clock kind of time’, and that these occasions were in June and August of 2015.  Accordingly, the Board invited the Tribunal to reject the assertion made on Mr Laycock’s behalf that the oral sex occurred in ‘broad daylight’ and the conclusion sought to be drawn regarding the implausibility of Patient 1’s evidence.
85	While we accept the Hospital was busy and full of patients, health practitioners and others, we understood Patient 1’s evidence as to the events in her room to indicate they were brief, occurred at night or at times when she had been asleep and medication affected and when no one else entered the room.  The evidence concerning some of those events indicated they took only a minute or so.  The evidence regarding one of the times when oral sex was said to have occurred refers to it occurring at night when Patient 1 had been sleeping and significantly affected by the change of medication.  As we understood it, she was not in a shared room at that time (in May 2015).  
86	Whether Mr Laycock would have regarded the alleged conduct in a vehicle as being too risky to engage in was not raised directly with him in evidence and so we have not been able to draw any conclusion about his attitude.  We have, of course, noted his denials.  Ultimately, we have determined that matter by having regard to the evidence before us.  As to the timing of the sexual activity alleged to have occurred in the car in Street A, as discussed below, we did not find the evidence about the time of day clarified matters. 
87	We did not find Patient 1’s credit was reduced as a result of those matters in the manner contended for by Mr Laycock.
Knowledge of Mr Laycock’s body 
88	Mr Laycock’s submissions referred to the fact he was circumcised and the fact Patient 1 claimed he was not.  Reference was made to her claims that she had, on several occasions, engaged in oral sex, and penile/vaginal sex with Mr Laycock, suggesting she would have been able to accurately describe his anatomy.  The apparent inaccuracy was said to be strong evidence that the two never engaged in sexual contact other than kissing, and touching of each other’s bodies over their clothes.  
89	As to Mr Laycock being circumcised, as described earlier, Patient 1 was asked some questions about that in cross-examination.  Patient 1 was asked whether she made the error because she had never seen Mr Laycock’s penis.  Patient 1 disagreed.  No further questions were asked.  That means Patient 1’s apparent error remained unexplained.  
90	We do not consider it open to find Patient 1’s credit is reduced in those circumstances.  We also note that, on the evidence, it appears that the oral sex in the Hospital room and in the car appears to have occurred quickly and in circumstances where Patient 1 had little to no pre-sexual engagement with Mr Laycock.  The sexual intercourse at his home was said to have occurred when she was drunk – in her Police Statement, Patient 1 stated that at the time she was so intoxicated she was almost unconscious – and her evidence was that she awoke on the bed to find he had penetrated her already.  
91	There was no evidence before us showing that a person who engaged in the sexual activity described by Patient 1 (or Patient 2 for that matter) must have been aware Mr Laycock was circumcised.  We do not consider that goes without saying in all of the circumstances.  
92	Given the paucity of evidence on the topic, we have not found the question of Patient 1’s belief that Mr Laycock was uncircumcised reduced her credit. 
Knowledge of and communications with Patient 2
93	Patient 1 was asked about whether she knew Patient 2 at the time they were both in the Hospital in August 2015.  Patient 1 said she knew who Patient 2 was but they had never spoken in Hospital and she could not recall them being in a group session together.
94	Her further evidence was that, during the criminal process, she was told by Victoria Police to have no contact with Patient 2 and she complied with that direction.  She further stated that, once that process had been completed (in around mid-2017 after the charges were withdrawn) she contacted Patient 2 via Facebook.  They never spoke on the telephone but exchanged Facebook messages for several months.  She gave evidence she and Patient 2 communicated only once after she made the AHPRA Statement (on 11 December 2017).  
95	When asked what she discussed with Patient 2, Patient 1 agreed she told Patient 2 Mr Laycock had kissed her, digitally penetrated her and had oral sex with her.  She was not certain if she mentioned the alleged visit to Mr Laycock’s house.  
96	Patient 1 said Patient 2 told her that Mr Laycock had intercourse with her at the Hospital and told her about the Park Incident on 23 March 2015.  She recalled Patient 2 referring to Mr Laycock attributing an erection to her, using the words ‘this is what you do to me’.  Patient 1 said they talked in more generalised ways rather than going through the detail of each event.
97	We record that, by mid-2017, when Patient 1 made contact with Patient 2 on Facebook, Patient 1 had made the initial notification to AHPRA (dated 23 August 2015), made her Police Statement (on 8 September 2015) and given evidence at the Committal hearing in December 2016.  In the Police Statement, Patient 1 said this:
I have not spoken to the other girl about what had been going on, I don’t know her and I don’t want to talk to her.
98	We accept Patient 1’s evidence on this matter and consider that it enhances rather than diminishes her credit.  
Responses to Mr Laycock’s denials and the scope of cross-examination
99	Throughout the cross-examination, Mr Laycock’s counsel very properly put Mr Laycock’s position as to various matters to Patient 1 and gave her a chance to say whether she agreed or disagreed.  That included putting specific questions arising from the particulars and more general propositions.  
100	Falling into the latter category were the following questions and responses:
•	That Mr Laycock had never come into her room and kissed here there and that there had been no contact of a sexual nature in her Hospital room – Patient 1 disagreed;
•	That there was nothing like sexual touching, digital penetration or oral sex during her second admission (in April to mid-May 2014) or between her second and third Hospital admissions (between mid-May 2015 and early August 2015) – Patient 1 disagreed; and 
•	That there had been no sexual activity between them at the Hospital or in a car or at his house – Patient 1 disagreed.
101	Patient 1 was not cross-examined about:
•	Her description of Mr Laycock’s car (where she said they met and engaged in oral sex);
•	Her description of Mr Laycock’s house, including the bedroom or whether the children slept in the same room or in separate rooms; or
•	The scarring on Mr Laycock’s back.
102	Other than the questions referred to above, Patient 1 was not further cross-examined about Mr Laycock’s claim that she and Patient 2 colluded in making the complaints about him.  
103	Importantly in our view:
•	Patient 1 was not asked any questions about any alleged inconsistencies as between any of her written Statements and/or her evidence at the Committal hearing and/or her evidence before us; and 
•	Aside from the suggestion of jealousy, Patient 1 was asked no questions about her motivation for making the notification to AHPRA or the complaint to Victoria Police.  It was neither suggested nor put to her formally that she had manufactured her evidence or lied about the events referred to in Allegation 1 and no question was put which might have suggested why she might have either lied or misremembered what happened.  
104	Our conclusions as to Patient 1’s credit are set out later.
Patient 2
105	The materials show that Patient 2 had been admitted to the Hospital over the period 2012 to August 2015.  In her Police Statement, Patient 2 stated that, as at August 2015, she was being treated for borderline personality disorder (but was then feeling well).  Patient 2’s treating psychiatrist as at January to July 2015, stated she was being treated to manage symptoms of her mental illness which included anxiety, distress, low mood and suicidal ideation.  Patient 2 was admitted to the Hospital three times over the period March to August 2015 and received inpatient treatment for a total of around seven to eight weeks.
106	Mr Laycock’s submissions contended that Patient 2’s credit in respect of all allegations would be reduced if we did not accept her description of the Park Incident.  The submissions noted, and we accept, that Allegation 2 does not allege that the sexual acts occurred without Patient 2’s consent, but Patient 2’s claim that she told Mr Laycock that she did not want to engage in the sexual acts remains particularised.  
107	Given those submissions, we record now that, as explained in detail below, we have accepted Patient 2’s evidence about what occurred on 23 March 2015.  
108	In summary, that means we have accepted Patient 2’s evidence that on the relevant day, Mr Laycock:
•	Arranged to meet her in a local shopping centre (while she was on short day leave from the Hospital) and then drove her to a park;
•	While sitting on a park bench, kissed her on the lips and breast and placed her hand on his crotch; and 
•	Then led her to a toilet block where he attempted to perform oral sex on her (when she said she did not want him to), asked her to perform oral sex on him (which she refused) and attempted to engage in sexual intercourse with her (when she said she did not want to).
109	We now deal with other submissions relevant to the credit of Patient 2, some of which also relate to the Park Incident.  
The text messages and phone communications 
110	As discussed later, up until the hearing before us, Mr Laycock had denied sending text messages to Patient 2.  At the hearing he conceded (to a limited degree) that was incorrect.  Despite that initial position, submissions were made on his behalf about how to interpret the dealings between Mr Laycock and Patient 2 based on the content of the text messages.  
111	First, it was contended that the frequency and content of the messages did not support a finding that there was sexual activity between the two.  The messages were characterised as being friendly without being sexually suggestive.  
112	Second, despite alleging the sexual activity occurred when she had said she did not want to engage in it and had expressly refused to perform oral sex, it was noted that Patient 2 continued to send messages to Mr Laycock after the Park Incident.  
113	Third, the text messages and other telephone contact was said to have ceased only because of the intervention of Patient 2’s former partner (the Partner) and not because of any forceful sexual acts or acts having occurred.  
114	The records attached to Ms Chen’s affidavit cover the period 15 to 29 March 2015 and show that text messages and voice calls were made and initiated.  We did not have evidence which made plain exactly when the texts before us were sent.  
115	The texts which were photographed by the Partner (Patient 2’s then fiancée) and provided to the Hospital were as follows:
Patient 2: 		Call me
Mr Laycock: 	Talk later busy with kids xxxxxooooo
Patient 2:		Ok
Mr Laycock: 	You can come over tonight if possible for you?  Let me know after 900pm
Patient 2: 	Can’t do sorry.  Won’t be able to get away.  How are you?  Are you free tomorrow?
Mr Laycock: 	No working
Patient 2: 		B4 work?  Can we meet up?
Mr Laycock: 	Got kids to look after sorry
Patient 2: 	All good was gunna go for a ride and stop by.  Give me a call when you are free maybe?
Mr Laycock: 	Of course talk later
. . .
Mr Laycock: 	If you want to talk I’m here
Patient 2: 	I can meet you at [Hospital] tomorrow arvo if that’s a plan 
116	The Table summarised call data extracted from Patient 2’s phone over the period 15 March to 30 March 2015.  It shows that all messages and calls from that phone were initiated by Patient 2.  
117	The Table also shows that, on 23 March 2015, the date the alleged sexual activity occurred in the park, Patient 2 sent Mr Laycock texts at 1:12 pm, 1:22 pm and 3:01 pm.  The records indicate calls were initiated or made three times at 3:07 pm and three more were made at 3:33 pm.  According to the available evidence, Patient 2 was signed out of the Hospital at 12:20 pm and returned at 1:20 pm.  
118	Neither Patient 2 nor Mr Laycock was asked what the phone calls made after 1:20 pm on 23 March 2015 were about or what, if anything, was discussed.
119	The records also showed further telephone contact initiated by Patient 2 on 24, 25 and between 27 and 30 March 2015.  As summarised later, Patient 2 did not deny that level of telephone contact in cross-examination.  
120	In reply submissions, the Board contended: 
•	While it was put to Patient 2 that the contact between her and Mr Laycock continued after the Park Incident on 23 March 2015, it was not put to Patient 2 that the continued contact made it improbable that the event occurred; and 
•	Nor was it put to Patient 2 that the tone of the text messages sent between 23 March and 30 March 2015 was inconsistent with the Park Incident occurring – the text messages were not characterised as ‘friendly without being sexually suggestive’ or ‘contain[ing] no sexual innuendo’ when put to Patient 2  in cross-examination.
121	We do not consider the content of the text messages set out above demonstrate the relationship between Patient 2 and Mr Laycock had no sexual element.  That is in part because the messages themselves are neutral on the point and also because the evidence was they spoke in person and by telephone during the relevant period.  The totality of their communications were not available to us.  
122	We discuss below how we have approached communications initiated by Patient 2 after the Park Incident and the involvement of her former partner (the Partner) in bringing those communications to an end.  
123	We concluded that neither matter weighed against Patient 2’s version of events, in part because the topic was not explored with either Patient 2 or Mr Laycock during their evidence in a manner that allowed us to draw any relevant conclusions, including conclusions adverse to Patient 2.  
Patient 2’s reaction to the Park Incident on 23 March 2015
124	Mr Laycock also relied on the fact that, when she returned from the park, Patient 2 told Nurse 1 that she had been assaulted but by someone other than Mr Laycock.  Patient 2 also told the Partner she had been assaulted but did not name Mr Laycock until August 2015.  Further, while Patient 2 told the Director of Nursing about boundary violations by Mr Laycock (in the form of telephone contact and the like) during the August 2015 Hospital investigation, she made no mention of any sexual contact.
125	Mr Laycock’s submissions said, given those matters, the Tribunal could not be satisfied to the requisite standard that the Park Incident on 23 March 2015 took place.  That being so, it called into question the credibility and reliability of Patient 2’s account of all other instances of alleged sexual contact occurring on other days.  The submissions noted that the other alleged incidents were only broadly particularised as to dates and times and that the lack of detail diminished the force of the allegations, particularly in the face of Mr Laycock’s clear denials.  
126	In reply, the Board contended that Patient 2 was not put on notice that Mr Laycock would rely on her different disclosures to Nurse 1 and the Partner about the Park Incident on 23 March 2015 to call into question her credibility.  The Board contended that Patient 2 clearly explained her reluctance to identify her attacker in her evidence, stating that she ‘was too afraid to say who it was’.  Further, the Board noted that it was not put to Patient 2 that alleged inconsistencies in her evidence in relation to 23 March 2015 called into question her other allegations against Mr Laycock.
127	We are not persuaded that Patient 2’s failure to identify Mr Laycock as the person involved in the Park Incident on her return to the Hospital that day, or soon after, to Nurse 1 or the Partner shows her account cannot be accepted.  
128	We make plain that there was no challenge made to Patient 2’s account of what happened at the park, only about whether it involved Mr Laycock.  
129	We noted the unchallenged evidence Patient 2 gave as to past sexual assaults and the experience of not being believed then; she stated she did not expect to be believed over Mr Laycock.  We also noted her statement that she was concerned how the Partner would react and that he had isolated her.  We have understood those factors, and the fact she was extremely unwell in March 2015, to explain her reluctance to identify Mr Laycock.
130	In her 16 December 2017 AHPRA Statement, Patient 2 explained in more general terms why she told no one about Mr Laycock’s behaviour at the time.  She stated that Mr Laycock told her to not to tell anyone about what had happened and warned they needed to be careful as there was a nurse on shift who ‘had eyes everywhere’.  She referred to her fear others, including the Partner, would not believe her.  She was concerned that if it came to her word against that of Mr Laycock, he would use her status as a patient against her and say she came onto him.  She said she was ‘afraid her life would fall apart’.  She added that she did not know there was anyone else involved and that it was only her word against his and that, with her unable to produce proof, she would not be believed.
131	As stated above, the suggestion that the failure to identify Mr Laycock when she returned from the park on 23 March 2015 affected her credit, was not put to Patient 2.  Having regard to the evidence summarised above, we accepted her explanation about why that was so and concluded that the failure to report Mr Laycock on 23 March 2015 (and more generally sooner) did not adversely affect Patient 2’s credit.  
The likelihood of sexual contact in the Hospital
132	As was the case for Patient 1, reliance was placed on the busyness of the Unit as a factor supporting a conclusion the particulars relating to sexual contact within the Hospital had not been proven.  
133	As to Allegation (vi)(B) (which concerned alleged sexual activity in a shared Hospital room, including oral sex), the submissions noted that the patient in the adjacent bed (Patient 4) said in her statement that she heard kissing and a conversation where Mr Laycock said Patient 2 did not look well and said he had to go home and would see her tomorrow.  On that evidence, there was said to be corroboration of kissing only.  The submissions suggested that one would have expected Patient 4 to hear those sounds had there been touching of Patient 2’s breast, touching of Mr Laycock’s crotch or oral sex.  The submission was that there was insufficient evidence that the extensive contact particularised in fact occurred.  
134	As to the criticisms of Patient 2’s evidence regarding the alleged sexual activity in the shared room and Patient 4’s evidence she heard discussion and kissing only, the Board again contended those matters had not been put to Patient 2.  It contended it would be an error for the Tribunal to infer from those matters that the events as described did not occur.  
135	As set out earlier, we accept the Hospital was busy and full of patients, health practitioners and others.  However, the events in the shared room with Patient 4, occurred at night, after 10 pm.  The numbers of people in the vicinity would be far less than during the day.  For the same reasons as given above, we do not consider the general evidence about how busy the Unit was necessarily leads to a conclusion that the physical and sexual contact Patient 2 described could not have occurred unobserved (see Allegation 2, particulars (v)(C) and (vi)(A) discussed below).  
136	We have given our findings about the activity alleged to have occurred in the shared room later.  That assessment has taken account of the fact that, as Patient 4 is deceased, we did not have the benefit of any direct evidence from her.  For the reasons given later, we have accepted Patient 2’s evidence about the alleged sexual activity within the Hospital.  
Knowledge of Mr Laycock’s body
137	In Mr Laycock’s submissions, emphasis was placed on the fact that Patient 2 said Mr Laycock was uncircumcised and had no scars, tattoos or other identifiable features.
138	On the question of her knowledge of Mr Laycock’s body, the Board relied on Patient 2’s evidence before the Tribunal that:
•	She was not actually looking at Mr Laycock when the sexual activities occurred;
•	That there were many times where she could not see his body; 
•	He never took his shirt off; and 
•	He was never completely naked.
139	As to Patient 2’s knowledge of Mr Laycock’s body and whether he was circumcised, those matters were canvassed only briefly in cross-examination.  We noted that Patient 2 said in her evidence that she was ‘leaning towards’ him being uncircumcised. 
140	We are unable to draw any adverse conclusions as to credit based on Mr Laycock in fact being circumcised.  Patient 2’s evidence on that specific matter was not explored at the hearing and we have no other evidence to rely on to show it is demonstrative of a lie.
141	We have given significant weight to Patient 2’s evidence about the circumstances of her interactions with Mr Laycock and considered it explained her lack of knowledge about other aspects of his physical appearance.  
Responses to Mr Laycock’s denials and the scope of cross-examination
142	In the same way as occurred in the case of Patient 1, Mr Laycock’s counsel put Mr Laycock’s position as to various matters to Patient 2 and gave her a chance to say whether she agreed or disagreed.  Again, that included putting specific questions arising from the particulars and more general propositions.  
143	Relevant here, it was put to Patient 2 that Mr Laycock said he did not meet her on 23 March 2015, he did not go with her to a park near the Hospital, did not sit on a park bench and that there were no sexual acts in the toilets there.  Patient 2 maintained those things did happen.
144	It was further put to Patient 2 that, although Mr Laycock exchanged text messages and phone calls with her, there was no sexual activity between them, namely:
•	There was no touching of her breasts;
•	She did not place her hand on his crotch;
•	There was no oral sex;
•	There was no vaginal/penile intercourse;  
•	There was no digital penetration; and 
•	None of those things happened in the Hospital, in a park or anywhere.
145	Patient 2 disagreed with all those propositions.
146	Patient 2 was told that Mr Laycock agreed he had crossed boundaries regarding calls and messages and the like but denied anything more had occurred.  Patient 2 said she disagreed.  
147	Patient 2 was not cross-examined about her description of Mr Laycock’s car (in which they were said to have travelled to the park).  As noted above, she was also not cross-examined about:
•	How the sexual activity in her shared room could have occurred without the other patient hearing and, in particular, the fact the other patient referred only to kissing and she alleged oral sex had taken place; or
•	Why she continued to send text messages to Mr Laycock after the events in the park in March 2015.
148	Patient 2 was not cross-examined at all about Mr Laycock’s claim that she and Patient 1 colluded in making the complaints about him.  
149	As was the case for Patient 1, it was important in our view that:
•	Patient 2 was not asked any questions about any alleged inconsistencies as between any of her written Statements and/or her evidence at the Committal hearing and/or her evidence before us; and 
•	Patient 2 was asked no questions about her motivation for making the notification to AHPRA or the complaint to Victoria Police.  It was neither suggested nor put to her formally that she had manufactured her evidence or lied about the events referred to in Allegation 2 and no question was put which might have suggested why she might have either lied or misremembered what happened.  
150	Our conclusions as to Patient 2’s credit are set out later.
Mr Laycock’s credit and evidence 
The Board’s position 
151	The Board’s submissions referred in particular to a written response Mr Laycock’s then solicitors provided on 6 April 2018 (April 2018 Response).  There were other responses before us which addressed versions of the Allegations before us.  While we have treated all of those responses as point in time replies, it is fair to say the detail of what was put was mostly the same as the Allegations and particulars we are considering and that was because the statements made by Patients 1 and 2 have remained consistent.  
152	Mr Laycock’s previous responses were summarised by the Board as follows:
(a)	On 26 August 2015, Mr Laycock attended a meeting at the Hospital with the Director of Nursing, and the relevant Unit Manager.  During that meeting, Mr Laycock was asked about allegations of inappropriate sexual contact between him and Patient 1.  Mr Laycock denied those allegations;
(b)	On 11 September 2015, a written submission was provided to AHPRA by Mr Laycock’s legal representative in the context of an Immediate Action Committee hearing.  Mr Laycock vehemently denied allegations of sexual misconduct with Patients 1 and 2;
(c)	On 4 October 2017, a further written submission was provided to AHPRA by Mr Laycock’s legal representative.  Mr Laycock admitted breaching the professional boundaries with Patient 2 by forming a personal relationship with her and discussing his own personal information with Patient 1 in person and by phone.  Mr Laycock denied engaging in a sexual relationship with Patient 1 and alleged that the ‘breaches of professional boundaries left him vulnerable to allegations of sexual misconduct’ by Patients 1 and 2; and 
(d)	In the April 2018 Response, Mr Laycock admitted to providing Patient 1 with significant emotional support regarding her personal and mental health issues and that this constituted a breach of professional boundaries.  Mr Laycock reiterated that there was no sexual contact with Patient 1, and that he had not kissed, fondled or hugged Patient 1 in a sexual way.  Mr Laycock further stated that he did not meet Patient 1 in early July 2015 at a shopping centre and leave his two young children at home alone.  Mr Laycock reiterated his belief that the admitted breaches of professional boundaries had left him vulnerable to allegations of sexual misconduct by Patients 1 and 2.  
153	As the April 2018 Response appeared to have been written by him and he eventually conceded that was so, particular reliance was placed on it by the Board.  We have done the same when it came to describing his initial position and then his changed evidence at the hearing in particular.  
154	The Board contended that, in his evidence before the Tribunal, Mr Laycock refused to make reasonable concessions.  
155	The first example relates to the alleged sexual activity with Patient 1 in Mr Laycock’s home in July 2015.  The evidence about that event is detailed later but the credit related issues arising warrant mention now.
156	Patient 1 alleged that, in July 2015, she and Mr Laycock arranged to meet at a shopping centre near his house and they had agreed she would then come to his house, knowing his wife was at work.  The allegation was that all of that occurred and they had sexual intercourse at Mr Laycock’s home.  For the first time at the hearing, Mr Laycock’s evidence was that he met Patient 1 at the shopping centre, told her he had changed his mind and then left her there.  As a consequence, he said she had never been to his house.  
157	When he was shown a text he sent Patient 1 in around mid-August 2015 which said ‘maybe you can come again soon’, Mr Laycock admitted he sent the text message and conceded that it was indicative that Patient 1 had previously attended his residence.  However, he maintained that Patient 1 did not attend his residence in July 2015.  It was then suggested to Mr Laycock that there was no other explanation for the content of the message.  Mr Laycock then responded that the text message referred to the fact that he went to pick up Patient 1 (at the shopping centre) and that she did not come over to his house.
158	The Board contended that Mr Laycock’s response was, in the circumstances, implausible, particularly in light of his subsequent evidence regarding the circumstances of his attending the shopping centre to tell Patient 1 that he was backing out of the plan.  None of the events as asserted by him were said to be logical or consistent with his purported state of mind on the relevant night, let alone the other evidence in the case, including the text messages surrounding the meeting.
159	The Board also contended that Mr Laycock prevaricated and was evasive under cross-examination about the inconsistencies between his evidence before the Tribunal and the responses he previously provided to AHPRA.  
160	In his evidence, Mr Laycock admitted that the version of events he had previously given was different to his evidence before the Tribunal, with him saying he had not given ‘full details’ previously and saying that ‘not all information’ was provided at the time.  
161	The Board relied on Mr Laycock’s responses when he was taken to some of those inconsistencies and his assertion that some statements to AHPRA were ‘now untrue’ and were ‘not a true comment as we’re talking today’.  
162	When asked whether he agreed that his responses to AHPRA had contained lies, Mr Laycock stated the response was not ‘all the truth’ and further that it did not contain all the facts.  
163	When asked whether he denied that there are lies in his AHPRA responses, Mr Laycock said again that ‘not all the facts are disclosed’.  The Board noted that, after significant cross-examination on the topic, Mr Laycock was finally prepared to concede that his responses to AHPRA were untrue.
164	A further example of the variability of Mr Laycock’s evidence concerned the text messages with Patient 2.  It noted that, while Mr Laycock conceded that he had exchanged text messages with Patient 2 as set out in photographs of screen shots, he simultaneously maintained that there were messages which had been faked and which he had not sent.
165	In conclusion, the Board submitted that, overall Mr Laycock’s evidence was so inconsistent and illogical with respect to accepted facts and evidence in the case that he could not be believed with respect to his denials of the alleged sexual activity.
Mr Laycock’s position 
166	When asked why he had been reluctant to be open about the meeting with Patient 1 at the shopping centre and their plan for her to come to his house in July 2015, Mr Laycock said he was fearful about his wife’s reaction and ashamed for leaving the children alone.  
167	His counsel’s written submissions also said the following in respect of Allegation 1 and Patient 1:
(a)	No doubt the pending nature of the criminal charges would have caused Mr Laycock to fear that any admission by him might be used against him in proof of the criminal charges.  He explained in evidence that, since that time, he had made a full disclosure to his wife, who has stood by him;
(b)	Whilst Mr Laycock ought not to have misled investigators about the extent of his relationship with Patient 1, his frank admissions to the Tribunal against his interests was a matter which improved rather than diminished his credibility; 
(c)	Mr Laycock’s anxiety was highly relevant as is the understanding that giving evidence is a stressful experience for any person, and would be particularly so for a person suffering anxiety and against whom serious allegations are made.  That was said to explain some of Mr Laycock’s answers, particularly whilst under robust cross-examination; and 
(d)	It was noted that he acknowledged that some of the information provided to investigators was inaccurate and untrue, such as his denial to any form of sexual contact occurring with Patient 1.  However, he could not bring himself to agree that they were therefore lies.  That matter alone was said to not be sufficient to conclude that that his evidence overall lacked credibility or reliability.  
168	As to Allegation 2 and Patient 2, in addition to questioning whether specific aspects of the evidence was sufficient to meet the required standard of proof, the submissions said:
(a)	Mr Laycock gave unambiguous evidence that there was no sexual contact between himself and Patient 2.  It was asserted that he could do no more than make such a blanket denial;
(b)	The majority of events contained within Allegation 2 were loosely particularised, in the sense that no fixed date was given for the alleged event.  As a result it was submitted that Mr Laycock was unable to determine whether he was or was not on shift at the relevant time, or call upon any witness to his aid.  That was said to place him at a significant forensic disadvantage, which ought to be taken into account by the Tribunal;
(c)	Mr Laycock had conceded that he exchanged mobile phone numbers with Patient 2 and inappropriately engaged in contact with her unrelated to her clinical care.  Mr Laycock did not dispute that the screen shots of text messages were accurate.  He mentioned he had previously doubted the accuracy of the messages as they were screen shots taken by the Partner, and that he had previously known of faked text messages; and 
(d)	It was apparent that those messages contained no sexual innuendo, which was said to further reinforce that no sexual contact occurred between Patient 2 and Mr Laycock.  
169	The submissions concluded by referring to what were termed ‘serious deficiencies’ in the evidence relied upon by the Board.  It was noted that Mr Laycock did not bear an evidentiary burden and was not required to prove a reason why Patients 1 and 2 might be mistaken, exaggerating or lying.  He was said to have been unable to call any witnesses in support, because the alleged conduct was said to have occurred in private and/or on some unspecified date.  It was noted that Mr Laycock had chosen to give evidence before the Tribunal, and was clear in his denials.  The submissions asserted that a person in his position could do no more.  
The Board’s reply 
170	In reply, the Board submitted that Mr Laycock’s admissions were neither made readily, nor were they a frank acknowledgement of his feelings.  It stated that Mr Laycock has been on notice of the allegations made by the two Patients since 23 August 2015 and had consistently denied them, both in their entirety at first instance, and then in part at various times throughout the Board investigation.
171	It contended that Mr Laycock was provided with a number of opportunities to make admissions to the Board and, not only did he fail to do so, but he made numerous vehement false denials and assertions throughout the relevant period.
172	The Board referred to Mr Laycock’s April 2018 Response and his contention that his admitted breaches of professional boundaries left him vulnerable to allegations of sexual misconduct.  It submitted that Mr Laycock had only at the hearing made selective admissions where the existence of corroborating or other supporting evidence in relation to those matters which made the maintenance of his earlier denials untenable.
173	The Board described as speculative the submission that Mr Laycock was not forthcoming sooner due to a fear that admissions might be used against him in the criminal proceeding.  
174	The Board submitted that Mr Laycock was not a witness of credit and that his denials of the alleged sexual activity could not be believed.  It maintained its submission that the Tribunal could be comfortably satisfied, on the basis of the relevant witness’s evidence, that each of the particulars of conduct which are the subject of the Notice of Allegations may be proven.
Our conclusions
175	We start by referring to the manner in which Mr Laycock gave his evidence.
176	It appeared to us that Mr Laycock was anxious and nervous at the commencement of his evidence.  He had some difficulty stopping talking in response to his counsel’s questions and was moving around constantly.  
177	Mr Laycock appeared to be disorganised and unable to locate copies of documents despite them apparently being in his possession.  Arrangements were made to have certain documents emailed to him to assist him to respond to questions.
178	Early in his evidence-in-chief, Mr Laycock explained he had been involved in a car accident in his teens and it left him with a condition which caused him to display facial twitches and reactions and involuntary movements.  We accept that condition, the stress of the circumstances, his anxiety (and, perhaps, the strangeness of giving evidence over videoconference) contributed to some of the behaviour we observed.  
179	As noted, Mr Laycock’s submissions referred to and relied on Mr Laycock’s anxiety and how that influenced how he gave his answers, particularly whilst under robust cross-examination.  We accept that might be a partial explanation.  With that said, we record we considered Mr Laycock to be combative throughout his evidence and noted he was unwilling to make very obvious concessions.  The evidence discussed below provides ample illustrations of that and also recounts how he came to change his evidence on some matters and make admissions about other matters.  
180	We have ultimately agreed with the Board’s submissions as to Mr Laycock’s credit.  
181	First, we found his changing evidence over time to be indicative of someone who only made concessions when the evidence was overwhelming.  Even then, he gave ground in the most minimal way possible.  We accept he might well have had concerns about making admissions prior to the conclusion of the criminal proceedings.  However, we agree with the Board that he had more than adequate opportunity to correct his position since then and well before the hearing.  
182	There are prime examples of that changeability in relation to both Patients.  
183	Having consistently denied having kissed Patient 1 in a private setting or having any sexual contact with her at all; during his evidence-in-chief, he said they had kissed and cuddled and engaged in intimate touching while clothed in the street three times.  
184	Mr Laycock strongly denied communicating with Patient 2 outside the Hospital setting, including in the form of text messages sent from his phone.  Even when finalising the Agreed Statement which was produced on the first hearing day, Mr Laycock maintained that denial.  During his evidence-in-chief the next day, he conceded the messages sounded like him and, eventually agreed in cross-examination the messages came from his number and were likely sent by him.  
185	Second, we found his explanation that he was willing to be more open before us unconvincing.  His inability to agree about what was truth and what were lies reflected very poorly on him.  The degree of prevarication and avoidance was suggestive of dishonesty and that he made concessions only when there was no other option.
186	Third, we noted that, prior to the hearing, Mr Laycock had done more than deny the alleged romantic and sexual activities – he made positive statements about why the Patients’ evidence was not true and suggested motives for them to make false statements.  One example was him claiming their evidence was not true because he was elsewhere (such as attending to a car breakdown or working as a gardener).  While Mr Laycock was not required to prove events did not occur or to provide an ‘alibi’, if his explanations were true, it ought to have been comparatively simple for him to obtain persuasive documentary evidence as to his whereabouts.    
187	Finally, some of the evidence was simply implausible.  One example was Mr Laycock’s inability to describe what cars he owned at critical times despite having made much of the Patients’ alleged incorrect descriptions of his vehicle as to make and model and whether it had one or two children’s seats in the back.  His evidence about the meeting with Patient 1 at the shopping centre and his denial that she attended his home were unconvincing and inconsistent with a plain reading of the contemporaneous text messages.  As discussed later, Patient 1 gave evidence she knew about Mr Laycock having had a vasectomy because he told her so after sexual intercourse in the context of her being fearful of becoming pregnant.  We found that to be far more probable than him having told her about it on some unidentified day in the course of a telephone conversation about family size.  
Findings on credit
188	In summary, we considered Patients 1 and 2 to be witnesses of truth.  We gave particular weight to the consistency of the statements they made and their evidence over a period of nearly six years.  There was no persuasive evidence they had a reason to manufacture the allegations – while it was faintly suggested they acted in revenge because Mr Laycock hurt them, that was not put to them directly and there was insufficient evidence to allow such an inference to be drawn.  As set out, the Patient’s evidence about the detail of what occurred was barely tested in cross-examination and their explanations for how events occurred (over the course of their multiple statements and evidence before us) had the ring of truth.
189	Noting their repeated admissions to the Hospital and the evidence about their then serious and recurring illnesses, we regarded them both as extremely vulnerable patients liable to be less capable than usual of making good judgments about their dealings with Mr Laycock.  
190	While we accept Mr Laycock might objectively have had reason to see Patient 1 in a romantic light, we found her evidence as to her then thinking and state of vulnerability persuasive.  We accepted her evidence about her increasing dependence on Mr Laycock as truthful and the way that affected her capacity to avoid sexual contact.
191	It was apparent from the evidence that Patient 2 was also highly vulnerable and had experienced significant distress in the past and during the Hospital admissions.  We accepted her explanation as to why she did not report Mr Laycock sooner.  In our view, Mr Laycock’s characterisation of their relationship – her a damaged patient he was simply trying to help – was an untruth.
192	For the reasons given, we have preferred the evidence of Patient 1 over that of Mr Laycock where there was a conflict in the evidence.  In the same way, we have preferred the evidence of Patient 2 to that of Mr Laycock where there was a conflict.  
193	We now turn to the various telephone records before us.
The telephone records and contact between Mr Laycock and the Patients
194	As mentioned above, the Board summonsed telephone records from Telstra.  At the hearing, the parties informed us that they had agreed on the summary of the data contained in the Tables.  The Tribunal Book also contained copies of text messages and a summary of telephone calls and texts.  
195	The documents contained a mobile phone number which Mr Laycock agreed was his and that was the number which appeared in the summary data and in the copies of text messages.  The other mobile phone numbers in those records belonged to either Patient 1 or 2.  
Patient 1
196	Patient 1 had two mobile phones in the relevant period.  
197	The first was smashed in around July 2015.  In respect of that mobile number, we had a table which recorded calls and texts between Mr Laycock and her, arising from records produced from his mobile number.  The table showed the content of text messages as well as the initiating and termination of voice calls.  As indicated by the particulars to which Mr Laycock has agreed, there was no dispute that he had supplied his mobile telephone number to Patient 1 and that those records were accurate.
198	As to Patient 1’s second mobile phone, we had print outs of screen shots of text messages between them.  Those screen shots were taken by the Director of Nursing in August 2015.  Having regard to Mr Laycock’s admissions and to the agreed position between the parties, there was no dispute that those records were also accurate and represented exchanges between Mr Laycock and Patient 1.
Patient 2
199	The summary data attached to Ms Chen’s affidavit showed telephone communications between Mr Laycock and Patient 2 over the period 15 to 30 March 2015.  As we understood it, those records showed voice calls and text messages, all of which were initiated by Patient 2.
200	We also had copies of photographs of text messages which we understood were exchanged during March 2015.  As explained in a statement made by the Partner, the photographs were taken by the Partner in late March 2015.  Patient 2’s Partner held her mobile phone and scrolled through messages, taking photos of them on his own phone.  The Director of Nursing’s witness statement explained that the copies of the text messages were passed on to the Hospital in August 2015 and that evidence was confirmed by her before the Tribunal.
201	As discussed above, at the commencement of the hearing, Mr Laycock did not agree that he provided his mobile phone number to Patient 2 or that he engaged in telephone conversations with or sent text messages to her.  
202	In the April 2018 Response, Mr Laycock said he gave his mobile phone number to Patient 2 during her admission to the Hospital in March 2015.  He also stated he had telephone conversations with her, although he placed those as commencing after the Park Incident on 23 March 2015 and not before.
203	At the hearing, Mr Laycock gave evidence that he gave Patient 2’s Partner the mobile phone number at some stage, in the context of them discussing Mr Laycock undertaking garden work for the Partner.  That was because Mr Laycock had a gardening business he ran while working as a nurse.  He seemed to indicate that Patient 2 obtained his mobile phone number through the Partner and not direct from him.  
204	In the April 2018 Response to the Board, Mr Laycock denied texting Patient 2.  As at that time and apparently up to the hearing, Mr Laycock believed the text messages relied on by the Board were fake and that was partly based on the fact Patient 2’s phone had never been forensically examined by Victoria Police during the criminal investigation.
205	During the course of his evidence-in-chief and cross-examination, Mr Laycock conceded that the text messages sounded like him, as in they were consistent with his style of language and use of abbreviations when texting.  He also eventually acknowledged that the mobile phone number which appeared in the photographs was his.  He gave some evidence about a mobile phone application which creates fake text messages and said, when he looked at that and compared it to the photographs of Patient 2’s text messages, he thought there were similarities.  
206	Nevertheless, while he never definitively agreed he had sent Patient 2 texts, he agreed it was ‘highly likely’ those before us came from him.  
207	We have proceeded on the basis that Mr Laycock was the recipient and sender of the screen shots of the text messages relevant to Patient 2.  
Overview of the available evidence from Patient 1, Patient 2 and Mr Laycock 
Patient 1’s statements and evidence
208	Patient 1 has made a number of written statements about her interactions with Mr Laycock.
209	The first was contained in a notification to AHPRA dated 23 August 2015 (Notification).
210	The second was in the form of a statement to Victoria Police dated 8 September 2015 (Police Statement).
211	The third was by way of a statement made to AHPRA dated 11 December 2017 (AHPRA Statement).
212	Finally, Patient 1 made a witness statement in this proceeding dated 11 December 2018 (Witness Statement).  That Witness Statement attached her Notification and the other two Statements mentioned above.  The Witness Statement was structured around her admissions to the relevant psychiatric unit (the Unit) at the Hospital.  
213	As to oral evidence about the events, Patient 1 gave evidence at the Committal hearing and was cross-examined.  While the Committal hearing transcript was contained in the Tribunal Book, no reference was made to it and, in particular, no questions were asked of Patient 1 about her evidence there.  We have relied on it only as indicated above – that is, to record the absence of cross-examination as to any inconsistencies.
214	Both Patients gave evidence before us (adopting as true and correct their witness statements and all annexures) and were cross-examined.  Where there was no cross-examination or questions in re-examination on topics covered in the Statements, we have proceeded on the basis of the Patients’ oral declarations that the contents of those were true and correct.
Patient 2’s statements and evidence 
215	Like Patient 1, Patient 2 made a number of written statements about her interactions with Mr Laycock.
216	The first was in the form of a statement to Victoria Police dated 5 September 2015 (Police Statement).
217	After the criminal processes had been completed, Patient 2 made a notification to AHPRA on 22 August 2017 (Notification) .  
218	Patient 2’s third statement was made to AHPRA on 16 December 2017 (AHPRA Statement).
219	On 20 February 2019, Patient 2 made a witness statement in this proceeding (Witness Statement).  That Witness Statement attached her notification and the other two Statements mentioned above.  It was also structured around her admissions to the Hospital.
220	As to oral evidence about the events, Patient 2 gave evidence at the Committal hearing and was cross-examined.  Like Patient 1, there was no reference to that evidence in the hearing before us.  
Mr Laycock’s evidence 
221	Mr Laycock’s response to the Allegations was in the form of the responses listed earlier and his oral evidence before the Tribunal.  
222	We mentioned earlier a document we have called the April 2018 Response.  That document was prepared by Mr Laycock and sent to APHRA by his then solicitors on 6 April 2018.  It contained his responses to the allegations then being investigated, the content of the AHPRA Statements each of Patients 1 and 2 had made and evidence given at the Committal hearing.  As it is the most detailed written response from Mr Laycock, we refer to specific material in that document in the context of the relevant particular and specifically to illustrate the changes in his responses over time.  
223	Having said that, we record that Mr Laycock did not adopt the April 2018 Response as being true and correct and so we have not treated it as containing sworn evidence.  
224	We have already touched on the manner in which Mr Laycock gave his evidence.  We discuss his evidence responding to the specific particulars in the Allegations later.
225	Mr Laycock was asked questions about his current and past circumstances.  
226	As at the time of the hearing, he was working full-time as a contractor gardener.  
227	Mr Laycock was asked about his mental health diagnoses.  The effect of the evidence was that he was not formally diagnosed with anxiety or depression as at 2014 and 2015, although he believed he had those conditions.  He said he was first diagnosed by clinical psychologist Mr Damian Hardwick, about four to five years ago (so around 2016 to 2017).
228	Mr Laycock described his mental health in 2014/2015 as ‘shocking’.  He said he had infant children and he and his wife had no help from either side of their families.  He said he and his wife were always arguing and fighting.  He was anxious at work and felt one of the nurse supervisors was ‘at him’ day and night.  He said he did not know if he was coming or going, he was struggling and needed a friend at the time as he was feeling lost.
229	There was no report from a medical practitioner setting out a diagnosis at any relevant time, including around April 2018 when Mr Laycock said he was consulting his general practitioner about his mental health issues.  
230	We did have a report from Mr Hardwick, dated 14 July 2019, which was written in response to a request from Mr Laycock’s then solicitors.  The report sets out Mr Hardwick’s qualifications and experience, particularly in respect of the assessment, diagnosis and treatment of, amongst other things, adult anxiety and depressive disorders.  We accepted those matters.  It is not necessary to go into detail now about the contents of the report, but we note that, on the history provided to Mr Hardwick as at July 2019, he concluded that Mr Laycock met the criteria for diagnosis of Major Depressive Disorder, Recurrent Tic Disorder and Alcohol Dependence, complicated by Dependent Personality Traits.
231	In its written submissions dated 10 May 2021, the Board stated that Mr Laycock’s evidence consisted of a blanket denial of all of the conduct alleged against Patient 2 and limited admissions in relation to Patient 1.  Further, it noted Mr Laycock agreed with the proposition put in cross-examination that, for each and every one of the particulars of conduct alleged which he disputed, the witness was either lying or mistaken.  We agree that accurately summarised the overall effect of his evidence.
The role of the ‘contact nurse’
232	As there was reference to the role of ‘contact nurse’ in various documents and in the evidence, it is convenient to clarify what that means now.  
233	There was no dispute that a contact nurse was allocated to the patients in the Unit each daytime.  The role of that nurse was to be the first point of contact during the day if anything was required.  For example, Patient 1 would contact that nurse if she required any medication outside of the usual medication regime, if she needed any medical attention or otherwise had any questions.  On most days there was one contact nurse in the morning and another in the afternoon.  The allocations were on a whiteboard in the Unit.  There was no allocated contact nurse overnight and instead the patients could seek assistance from the nurses on duty.
234	We now turn to the matters relating to Patient 1 and Allegation 1.
Background matters – Patient 1
235	Patient 1’s first admission to the Unit between November 2014 and December 2014 (First Admission) was not the subject of any particulars, but she referred to events at that time in her Statements.  It is convenient to refer to that material to set some background.
236	Relevantly, Patient 1’s Witness Statement said:
•	The First Admission was for around three weeks and she was allocated a private room in the Unit;
•	She first met Mr Laycock during that time and he was frequently allocated as her contact nurse.  She estimated that Mr Laycock was her contact nurse on about four or five days a week during that admission; 
•	She occasionally also saw Mr Laycock on duty in the common areas of the Unit on days when he was not her allocated contact nurse;
•	She recalled that, during the First Admission, Mr Laycock was attentive and caring towards her.  She recalled she was physically ill from the effects of her medication at the time and spent a lot of time in her room.  Mr Laycock frequently came into her room to see how she was going and to chat with her.  Sometimes those were short visits, and at other times he spent 20 or more minutes in her room, chatting about various things.  Patient 1 recalled that he spoke of his family and his children.  She remembered in particular that Mr Laycock told her he had a child who was about the same age as Patient 1’s son.
Allegation 1 
237	Allegation 1 was that Mr Laycock engaged in professional misconduct or unprofessional conduct when he failed to maintain the boundaries that should, and ordinarily do, delineate the relationship between a nurse and his patient and/or former patient, being a person who is or has been previously under his care.  The Board relied on 23 substantive particulars to prove the Allegation as it concerned Mr Laycock’s dealings with Patient 1. 
Allegation 1 – Patient 1 – Second Admission – particulars (v)(A) and (B)
238	Patient 1’s second admission to the Hospital was between 22 April 2015 and 15 May 2015 (Second Admission).  The first set of particulars relevant to that Second Admission are as follows:
(v)	during the Second Admission, Mr Laycock:
(A)	*provided his personal mobile phone number to [Patient 1] without clinical justification;
(B)	*engaged in telephone conversations and exchanged text messages with [Patient 1] unrelated to her clinical care . . .
239	The * above indicates that Mr Laycock agreed to the facts in (A) and (B).
240	In respect of the Second Admission in April and May 2015, Patient 1’s Witness Statement said:
•	In or around April 2015, Patient 1’s psychiatrist recommended a change to her medication regime and recommended re-admission to the Hospital so that the new medication regime could be properly managed;
•	She was allocated a shared room in the Unit on her re-admission and did not cross paths with Mr Laycock during the first week; 
•	During the second week of the Second Admission, Patient 1 was preparing to move from the shared room to a private room.  She recalled the first time she saw Mr Laycock during that Second Admission was when she was preparing to move.  She was walking out of the shared room into the hallway when she saw Mr Laycock.  He walked towards her and gave her a big hug by wrapping both his arms around her.  This occurred in the middle of a busy corridor; 
•	They then had a conversation which was described in paragraph 14 of the AHPRA Statement.  Mr Laycock said words to the effect that he had missed Patient 1 and wanted to talk to her again.  He further said words to the effect that, after she was discharged from the Hospital subsequent to the First Admission, he had considered looking for her mobile phone number on the Hospital file.  She stated she did not say anything in response to him and laughed it off;
•	Mr Laycock helped her to move her belongings from the shared room to a bathroom where they were being temporarily stored.  Later that day, Mr Laycock told her that he was not supposed to have helped her move as he was on duty in another part of the Unit that day;
•	Towards the end of the Second Admission, Mr Laycock gave her his mobile phone number.  When he did so, he said words to the effect that it was for support when she left the Hospital because her psychiatrist was not always around.  Mr Laycock also asked for Patient 1’s phone number, which she gave to him;
•	She had been shown the Table which set out the history of text messages exchanged between Mr Laycock and her.  That document indicated that the first text message she exchanged with Mr Laycock occurred on 7 May 2015.  That was consistent with her recollection that Mr Laycock provided his personal mobile phone number towards the end of the Second Admission; and 
•	After Mr Laycock gave her his mobile phone number, they sent text messages to each other and occasionally spoke through voice calls.  That occurred during the Second Admission and when Mr Laycock was both on and off duty.  There were also occasions when Mr Laycock telephoned her on the landline phone in her Hospital room.  However, it was her recollection that Mr Laycock more frequently contacted her on her mobile phone.
241	None of that evidence was disputed by Mr Laycock.  His evidence was that his dealings with Patient 1 were entirely professional during her First Admission (in late 2014).  
242	Given Mr Laycock’s admissions and giving weight to Patient 1’s evidence about the circumstances of receipt of Mr Laycock’s mobile phone number and their communications, we find particulars (v)(A) and (B) of Allegation 1 proven.
Allegation 1 – Patient 1 – Second Admission – particulars (v)(C) and (D)
The particulars 
243	The particulars say:
(v)	during the Second Admission [between 22 April 2015 and 15 May 2015], Mr Laycock:
. . . 
(C)	on a date in or around May 2015, [Mr Laycock] entered [Patient 1’s] room at the Hospital at night, where he:
(I)	sat at the end of [Patient 1’s] bed;
(II)	as he stood up to leave, gave [Patient 1] a hug; and/or
(III)	kissed [Patient 1] on the lips and subsequently immediately left the room; and
(D)	on or about 13 May 2015, [Mr Laycock] entered [Patient 1’s] room at the Hospital at night whilst she was sleeping, where he:
(I)	sat at the end of [Patient 1’s] bed, causing her to awake to his presence;
(II)	subsequently placed his hands under [Patient 1’s] pyjama top and touched her breasts;
(III)	said words to the effect that he was in love with [Patient 1];
(IV)  	digitally penetrated [Patient 1’s] vagina; and/or
(V) 	placed his penis inside [Patient 1’s] mouth;
Patient 1’s evidence 
244	Patient 1’s Witness Statement says the following about particular (v)(C):
23. 	In relation to paragraphs [9] and [10] of the Police Statement:
(a) 	I confirm that the events occurred after I had moved to my private room at Unit 1 of [the Hospital] in or around early May 2015.  On that day, Mr Laycock had finished his afternoon shift, which was ordinarily between 1pm and 9pm.  Mr Laycock came into my room, as he often did, and we had a chat.  Mr Laycock stood up to leave and gave me a hug.  He then kissed me on the mouth and immediately left the room.
(b) 	Not long after, Mr Laycock came back into my room and asked me if I was okay.  I understood this to mean about the kiss.  I told Mr Laycock I was okay and asked him to leave.
(c) 	At the time, I was very shocked at Mr Laycock’s behaviour.  Although Mr Laycock often hugged me, I did not expect him to kiss me.
245	As to particular (v)(D), relevantly, paragraphs 13 to 22 of Patient 1’s Police Statement said this:
13.	The next incident I remember, Darren was supposed to work an afternoon shift and a morning shift but someone had called in sick so Darren told me that he was working a double shift.  This was still around the end of April 2015, maybe early May.  I recall that he was on leave for the first part of my admission and then he came back, it might have been more into early May.
14.	We had been talking throughout the shift.  He was not my contact nurse that day.  We were talking as though we were friends.  It got close to the end of the afternoon shift and I went up to the nurse’s desk to get my night medication.  Darren gave that to me.  I was coming off Valium and I had been unwell so my psychiatrist had provided me with something to make me extremely drowsy at night time.  This new drug was called ‘Avanza’.  I was on ‘Cerequal’ and low dose of ‘Diazempam’ as well.  There are two nurses and both give out the medication.
15.	I went to bed straight after I took the medication, I was in room 2.  I went straight to bed because the medication normally only takes 15-20 minutes to start working . . . 
16.	I remember Darren coming into my room just when I was starting to feel drowsy.  He told me that he was just checking on me and would come and see me later.  I didn’t think much of it and just went to sleep.
17.	It would have been the middle of the night when Darren came into my room.  I woke up with him sitting on my bed.  I don’t think either of us said anything.  Darren gave me a hug and then started kissing me on my mouth.  I remember feeling really drugged and out of it.
18.	Darren put his hands up my pyjama top and started feeling my boobs.  He kept kissing me and saying ‘it’s ok.  I love you.’  I was really out of it, I had no idea what was going on.
19.	Then Darren put his hand down my pyjama pants and inside my underwear.  He put his fingers inside me.  He kept saying ‘I love you.’ And he was asking me if he was going to make me ‘cum’.  I don’t remember what was happening.
20.	I remember that he undid his belt and pulled his penis out of his pants.  He put his penis in my mouth.  I was lying down in the bed and he was standing over the top of me.  It was a single bed, not a hospital bed.  He still had his hand inside my pants, touching my vagina.  He kept saying ‘I love you, I love you.’  And then said ‘I’m going to cum.’  He started to ejaculate inside my mouth and then pulled out of my mouth and quickly ran into the bathroom and used my toilet.  I was not participating in what he was doing to me, I was too drowsy and I was confused about what had happened.  Darren came out of the toilet and started to say ‘I’m sorry’ and he put his pants back to normal.  I don’t remember what I did after that, I think I went back to sleep.  I felt that what was happening was really wrong but I didn’t know how to stop it.
21.	Darren came back in a couple of times that night.  Nothing further happened until the last time which was just before the morning shift started.  Darren came into my room and said goodbye, giving me a hug.  I remember that each time he came in, he would wake me up.  Normally nurses just check to make sure you are still breathing, normally you wouldn’t know they had been in.  I don’t remember if Darren gave me his phone number before this incident or after but I did get his phone number during this stay.
22.	I didn’t tell anyone what had happened.
246	We pause to record that the events described above in the Police Statement were also described in similar but less detailed terms in handwritten form in the 23 August 2015 AHPRA Notification, being the first written account of the events.
247	Relevantly, paragraph 15 of the AHPRA Statement said:
The following is in regards to events that occurred on or around 13 May 2015:
a. 	I believe that Mr Laycock was my contact nurse at the time and dispensed the medication to me.  I had had this medication previously and knew the effect it would have on me.  I had been changing from one antidepressant to another and I was weaning off Valium as I had been addicted to it.  I was on several medications in the in-between period while changing antidepressants.
b. 	It was not normal for a nurse to do both an afternoon shift and then a night shift.  I understand that Mr Laycock had been on the afternoon shift and the nurse that was meant to be on that night had called in sick and Mr Laycock offered to stay and do the night shift as well.  Mr Laycock told me that a nurse had called in sick earlier in the night and that he was going to fill and take the night shift.  I did not know why he told me this, as it had nothing to do with me.
248	Patient 1’s Witness Statement says the following about particular (v)(D):
24. 	In relation to paragraphs [13] to [22] of the Police Statement and paragraph [15] of the AHPRA Statement:
(a)		I confirm that the events as described are correct.
(b)	At the time of my second admission, I was stepping off Valium.  My psychiatrist [name redacted] prescribed a number of different medications to me during this admission.  At the time of the relevant event, I was prescribed Pristiq 100mg, Melatonin 2mg and Quetiapine (100mg in the morning and another 50mg in the afternoon).  I understood that Quetiapine was prescribed to me to assist with my sleep.  I found the physical side effects of Quetiapine to be difficult to manage.  It made me extremely drowsy and knocked me out.  It was also my experience that I felt foggy and groggy the following morning after having taken Quetiapine the previous night.  I had also been prescribed Avanza during my second admission.  Avanza is an antidepressant and was prescribed to me to assist me to step off Valium.  I only took Avanza just before bed as it made me extremely drowsy.  Each night, I attended the medication counter where a nurse provided me with my medication.  I have been shown a document from [the Hospital] indicating my medication regime on or about 13 May 2015.  It does not state that I took Avanza on 13 May 2015.  I was weaned off Avanza towards the end of my admission from on or around 11 May 2015 and by the time I was discharged from [the Hospital], I no longer took Avanza.  Accordingly, I think that I may have previously been mistaken about having taken Avanza on the night in question.
249	In cross-examination, it was put to Patient 1 that Mr Laycock had never come into her room and kissed here there and that there had been no contact of a sexual nature in her Hospital room.  Patient 1 disagreed.
250	It was also put to Patient 1 that Mr Laycock had only kissed her on the cheek and hugged her in a communal area of the Hospital when she was discharged at the end of Admission 2.  Patient 1 said she did not remember that.
251	It was put to Patient 1 that there was nothing like sexual touching, digital penetration or oral sex during her Second Admission.  Patient 1 again disagreed with that proposition and the broader proposition that there had been no sexual activity between them at the Hospital.  
252	We record that we understood those events occurred when Patient 1 was in the same private room.  
Mr Laycock’s evidence 
The April 2018 Response
253	We start with the parts of the April 2018 Response which address Mr Laycock’s relationship with Patient 1 and provide other background material.
254	He admitted to the breach of professional boundaries by forming a personal relationship with Patient 1, that being a friendship.  He further admitted the boundary breach included him discussing his personal information with her in person and on the telephone.
255	Mr Laycock stated that, in approximately 2014, he was diagnosed with depression and anxiety and in the period 2014 to 2015 he was experiencing a ‘significant decline’ in his mental state which affected his judgement with respect to forming personal relationships with patients.  He said he felt those patients understood his issues and what he was going through.
256	During his friendship with Patient 1, Mr Laycock said he provided her with significant emotional support regarding her personal and mental health issues.  He said Patient 1:
developed romantic feelings for me and became reliant on the emotional support I provided.  During this time, [Patient 1] presented to me as suicidal, hopeless, erratic and extremely volatile.  I felt fearful of terminating this personal relationship with [Patient 1] and felt compelled to continue to provide emotional support to her.
I understand that these personal relationships constituted a breach of professional boundaries.  I was mentally unwell during this time and unfortunately obtained understanding and support from patients, which I understand is completely inappropriate.  I believe that these breaches of professional boundaries have left me vulnerable to allegations of sexual misconduct by [Patient 1] and [Patient 2].  I also understand that, as psychiatric patients, [Patient 1] and [Patient 2] were vulnerable and the breaches of professional boundaries may have an adverse impact on their medical condition.
257	In the context of Patient 1’s First and Second Admissions, Mr Laycock stated he did not sit on the floor next to her bed or on the end of the bed when he was in her room.  He referred to Patient 1’s statement as to things he was said to have told her including where he grew up and the names of his children: Mr Laycock said the named location was incorrect and she referred to one name incorrectly.  He said their discussions were general in nature and concerned some personal disclosure about challenges related to young children.  He said:
I did not treat her with any more ‘friendliness’ then (sic) any of my other patients.  I was only trying to help my patients with their own recovery and given them a sense of ‘hope’.  This is part of my job and the recovery framework which underpins the Mental Health Act.
258	The statement then said this in respect of the allegations of sexual contact:
I want to address the issue of whether any sexual activity has occurred with [Patient 1] by discussing some statements that [Patient 1] has made about my physical appearance.  [Patient 1] states that I have had sexual contact including oral sex with her on quite a number of different occasions and yet she is not able to accurately describe my physical body.  [Patient 1] states in her notification to APHRA on the 11/12/17 that I am not circumcised.  This is inaccurate as I have been circumcised since early childhood.  [Patient 2] also describes my physical anatomy in the same way.  I am happy to see a General Practitioner chosen by APHRA to prove that I am circumcised.  There has been no sexual contact with [Patient 1] and this has led to her describing my physical anatomy inaccurately.  I have not kissed or fondled or hugged [Patient 1] in a sexual way.  It was a friendship whereby we supported each other.  The text messages showed that we ‘flirted’ but no sexual contact was ever made.  There was no kissing, fondling of hugging of a sexual nature.
259	As to the allegations of sexual activity said to have occurred in May 2015 (Allegation 1, particulars (v)(C) and (D)), he denied they occurred, again noting Patient 1 was not able to describe his physical anatomy correctly.  He noted Patient 1 had referred to being heavily medicated and unable to say anything or cry out – he asked rhetorically how she could remember if she was heavily sedated.  He noted there were two other nurses Patient 1 could have reported the event to and that neither of them had given evidence to police about the matter.
260	The April 2018 Response included a description of the physical layout of the Unit and usual practices as follows:
[Patient 1] talks about contact time between patients and mental health nurses.  She describes the shared rooms at [the Hospital] that are separated by a half wall and a curtain and states that the person sharing the room can hear all conversations.  She states that many nurses interview their patients in these rooms and you can hear everything.  There was limited interview rooms at [the Hospital] so it is common for nurses to interview their patients in their rooms.  It is a very busy psychiatric unit with lots of professional clinicians coming into the unit and reviewing patients.  There are multiple group programs that patients are required to attend by [the Hospital].  There is a communal medication room, lounge room, meals area, group rooms and smoking area.  The offices in each unit are full of nursing staff, medical staff, social workers, occupational therapists, and psychologists.  The workload is immense for nursing staff and you are the contact nurse for eight patients as well as being the medication nurse for all 22 patients as well as doing physical observations for 22 patients.  You are also expected to document in the progress notes for each of your patients, do visual observation checks, mental state examinations and risk assessments.  If a patient goes out on day leave you have to organise the paperwork and walk them to the front door.
261	We understood that material was intended to demonstrate that:
•	Patients in shared rooms could readily overhear each other’s discussions and any activities;
•	The Unit was very busy with people coming and going and many staff and others around including nurses, medical staff, social workers, occupational therapists and psychologists;
•	The patients were busy with activities and had places outside their rooms to meet and spend time; and 
•	The workload nurses were required to complete was very large and demanding and, by implication, there was no time for nurses to engage in the described conduct.
Evidence at the hearing 
262	At the hearing, in his evidence-in-chief Mr Laycock was asked why he gave Patient 1 his mobile phone number.  Mr Laycock said they had become good friends during the Second Admission.  He said he did the wrong thing and lost insight.  He thought they could talk to each other and help each other out.
263	Mr Laycock referred to being allocated as Patient 1’s nurse repeatedly during her Second Admission – he estimated three to four days a week and referred to there being six to eight patients in the Unit.  He said it was an ‘inevitable process’ – he said he saw Patient 1 as ‘more of a normal person’ than the others he dealt with and that was what attracted him to her.
264	Mr Laycock described how they talked to each other.  When he was passing by, he would check in with her even when not acting as her contact nurse.  He described it as touching base.  He then said the conversations became more in-depth – that is, more than ‘chit chat’.  He said that happened not on the Hospital Unit but on the phone and over texts.  Mr Laycock said words to the effect he ‘tried to keep it professional’ at the Hospital and that he ‘tried hard’ to do so.  
265	He was asked what they talked about.  He said it was about each other’s issues – she spoke about her problems with alcohol (referring to it being chronic and excess drinking when out with friends).  He referred to Patient 1’s children being removed from her because she was unfit/unworthy – reference was made to her self-harming.
266	Mr Laycock was asked whether he told Patient 1 about his life.  He said ‘Yes’ – he told her how lonely he was, that he needed someone to talk to and then said he was ‘using her as my therapist as much as she was using me’.
267	Mr Laycock was taken to the April 2018 Response and his admissions about the boundary violations.  Mr Laycock was asked if he held himself responsible for Patient 1’s decline.  He said he should have cut it short and told her to go to a doctor and not him.
268	Mr Laycock was asked about the alleged kissing in Patient 1’s Hospital room in May 2015 (Allegation 1, particular (v)(C)).  He denied that happened.
269	He was asked about the events alleged to have occurred on or around 13 May 2015 (Allegation 1, particular (v)(D)), namely entering Patient 1’s room, waking her up, touching her breasts, saying he was in love with her, digitally penetrating her and putting his penis in her mouth.  He said those things did not happen.  As to saying he was in love with her, Mr Laycock stated he may have said that in a text message but ‘not at that stage’.  He referred to wanting to keep work separate and wanting to keep his job.  He referred to so much traffic being around – apparently a reference to other patient and nurses being around the Unit and supporting his statement those events could not have happened without being overheard or discovered.
270	Mr Laycock was asked whether, at any time during Patient 1’s Second Admission, he kissed her inside the Hospital.  Mr Laycock said no, although he may have kissed her on the cheek to say goodbye in the corridor around when she was being discharged.
271	He was asked the following questions and responded as indicated (understood to relate to the Second and Third Admissions (the latter being discussed below)):
•	Did you ever kiss Patient 1 on the lips in the Hospital? – No;
•	Did you ever touch Patient 1 in the area of her breasts in the Hospital? – No;
•	Did you ever digitally penetrate Patient 1? – No; and 
•	Did you ever have oral sex in the Hospital? – No.
272	There was no specific cross-examination of Mr Laycock as to these particulars.  There were no questions in evidence-in-chief or in cross-examination about the layout of and level of activity within the Unit as described in the April 2018 Response.
Findings 
273	We have canvassed above and rejected the submissions that it was implausible for the relevant sexual contact with Patient 1 to have occurred in the Hospital without it being observed or overheard by someone else.  
274	As a consequence, we must make our findings based on Patient 1’s version of events and Mr Laycock’s denial.  
275	Given we place greater weight on Patient 1’s evidence, we accept her evidence which has been consistent over the last six years and which was not shaken at the hearing.  We are comfortably satisfied each element of particulars (v)(C) and (D) are proven.
Allegation 1 – Patient 1 – post-Second Admission – particulars (vi)(A) and (B)
The particulars 
276	The particulars say:
(vi) 	following the Second Admission [which ended on 15 May 2015]:
(A)	*Mr Laycock and [Patient 1] engaged in telephone conversations and exchanged text messages unrelated to her clinical care;
(B)	in or around early June 2015 on a date when [Patient 1] attended an appointment at the Hospital as an outpatient, Mr Laycock:
(I)	arranged to meet with [Patient 1];
(II)	sat with [Patient 1] in her car on [a nearby street – referred to in these Reasons as ‘Street A’], adjacent to the Hospital, where he:
(1)	kissed [Patient 1] on the lips; and/or
(2)	asked [Patient 1] to perform oral sex on him, with which she complied . . .
277	Again, the * indicates matters Mr Laycock agreed had occurred.
Patient 1’s evidence 
278	Patient 1’s Witness Statement discusses events which occurred after her discharge.  Relevantly, she said that Mr Laycock and she stayed in contact by text messages and through telephone calls.  They engaged in general conversation and talked about their respective days.  She explained that, at the time, she was going through a rough patch in her personal life.  She referred to a text message she sent Mr Laycock on 4 June 2015 wishing him luck and explained she recalled Mr Laycock had a job interview that day.  
279	She made reference to the content of her Police Statement and confirmed the events in early June 2015 (as described in paragraph 24 of that Statement) and that they occurred in her car.  
280	Those are the events which are referred to in Allegation 1, particular (vi)(B) involving Mr Laycock kissing Patient 1 while they were in her car in Street A near the Hospital, asking her to perform oral sex on him and her complying with that request.  As explained in her Witness Statement, Patient 1 had an outpatient appointment with her psychiatrist at the Hospital on the relevant day and she and Mr Laycock arranged to meet in what she referred to as ‘the usual spot’ during his dinner break.  
281	Paragraph 24 of the Police Statement said this:
In Early June 2015, I had an appointment with my psychiatrist [name redacted] as an outpatient.  This was before he was off on sick leave.  I went to my appointment at night after work.  Darren was working an afternoon shift and he met me on his dinner break.  I was sitting in my car and he came and got into the passenger side.  I was in the street just past the hospital.  We were talking.  Darren kissed me and he asked me to ‘go down on him.’  I remember feeling really uncomfortable and told him that I needed to go.  He said that it would just be quick and then he would go.  I remember thinking that I just had to do it quickly and then I could leave.  I gave him oral sex and then he went back to work.  He didn’t force me but I felt like I had no option.  I always felt like I had no choice, that I had to do what he wanted me to do because I was worried about losing my support from him.  I left and went back to my partner’s house.
282	Other than adopting the Statements as true and correct, there was no further evidence-in-chief about that event.
283	As noted above, in cross-examination, Patient 1 disagreed with the broad proposition that there had been no sexual activity between her and Mr Laycock in a car.  She was not cross-examined about her description of Mr Laycock’s car.  
284	The Tribunal asked Patient 1 to further describe Street A.  She said it was a residential street with lots of houses and parking.  She explained people often parked there rather than paying for parking in the Hospital grounds.  She said it was pretty quiet and there was not a lot of foot traffic.  She said the times she was there was after appointments later in the day, after 5pm.  Neither counsel asked any follow up questions about those answers.
Mr Laycock’s evidence 
285	As to the allegation of oral sex in a vehicle in Street A near the Hospital (Allegation 1, particulars (vi)(B)), Mr Laycock said it did not happen. 
286	In evidence-in-chief at the hearing, Mr Laycock was asked whether there was any occasion when he kissed Patient 1 outside in Street A.  As set out above, for the first time, he made concessions about that matter.  He said there were at least three occasions when they kissed and cuddled – he said he did care for her.
287	He placed the first occasion during Patient 1’s Second Admission in April to May 2015 and the other two between May and August 2015.  He said they met for only five to 10 minutes.  He referred to Street A as a ‘quiet spot’ and a leafy street which was only five minutes’ walk from the Hospital.  He said people parked there to go to the Hospital.  He described it as a practical place to meet up – it was ‘up the road a little’ and ‘somewhere quiet between two people’.  
288	He gave evidence that each time they met in Street A they would kiss and went on to say that Patient 1 touched him on the penis on the outside of his clothes.  He said he touched Patient 1’s breasts on the outside of her clothes.  He said these things happened each time they met on Street A.
289	Mr Laycock was asked whether those things ever happened in his or Patient 1’s car.  He said ‘No’ and added ‘they’ (presumably Patients 1 and 2) got the cars wrong – he said they ‘didn’t go near a car’.  
290	Mr Laycock was asked whether he ever met Patient 1 in a vehicle and he said no.  He was asked specifically about the event said to have occurred when they met in Street A when Patient 1 was an outpatient and had attended an appointment at the Hospital with her psychiatrist.  He was asked whether Patient 1 ever performed oral sex on him in a car.  Mr Laycock said they had never had sex in a car and that the oral sex part of it was not true.  
291	There was no specific cross-examination about these particulars.
Findings 
292	Given Mr Laycock’s admission, particular (vi)(A) is proven.
293	Noting Mr Laycock agreed meetings in Street A occurred in the period after Patient 1’s Second Admission (that is, after 15 May 2015), we are satisfied the events described occurred in or around June 2015.
294	Having regard to the admissions made by Mr Laycock in his evidence to the effect that he met Patient 1 from time to time in Street A and that when they met they kissed, we are satisfied those matters are proven (particulars (vi)(B)(I) and (II)(1)) .  
295	Contrary to Mr Laycock’s submissions, we find the proposition that on around three occasions (including the one the subject of particular (vi)(B)) Patient 1 and Mr Laycock kissed and fondled each other while standing on Street A to be improbable.  It seems to us far more probable that the kind of contact Mr Laycock described would have occurred in a car. 
296	On Patient 1’s evidence, we consider it to be more probable than not that the contact described happened in Patient 1’s car on the day in question.  
297	For the reasons given, we prefer Patient 1’s evidence to Mr Laycock’s and are satisfied that we should accept her consistent evidence about the full range of sexual contact she described occurred on the relevant day.  That includes the oral sex referred to in particular (vi)(B)(II)(2).  
298	We are comfortably satisfied the particulars are proven.
Allegation 1 – Patient 1 – post-Second Admission – particular (vi)(C) 
The particular
299	The particular says:
(vi) 	following the Second Admission [which ended on 15 May 2015]:
. . . 
(C)	on or about 4 July 2015, [Patient 1] attended Mr Laycock’s residence in [suburb redacted] upon his request, where Mr Laycock and [Patient 1] engaged in sexual activity . . .
Patient 1’s evidence 
300	As this event was the subject of a large amount of evidence and cross-examination, we have described it in detail by reference to the Police Statement, the AHPRA Statement, the Witness Statement and the telephone records.
301	The events occurred in early July 2015, during school holidays, and Patient 1’s children were staying with their father.  There was no dispute Mr Laycock’s wife was at work on night shift at the relevant times.
302	At 9:50pm on 4 July 2015, Patient 1 sent Mr Laycock a text message which said ‘The only way I’m going to be able to do it is leave around 8 and catch a taxi to maccas.  Is there somewhere I can go nearby.  I’ll only be able to stay til around 1am.’  Patient 1 said in her evidence that, as far as she could recall, she sent the text message to Mr Laycock after they had spoken over the telephone and he invited her to his house.
303	The telephone records show they exchanged several texts soon after, discussing what wine she should bring – she referred to bringing red wine.  That exchange ended with a text from her sent at 10:45pm which said ‘See u then xo’.  
304	Patient 1 then explained she took a taxi from her partner’s house to a shopping centre about five minutes from Mr Laycock’s home.  The evidence indicated that, in between the various texts, they had spoken and settled on that location.  
305	Patient 1 said that Mr Laycock collected her from that agreed meeting place and took her back to his house.  In her AHPRA Statement, Patient 1 said, when she arrived at Mr Laycock’s house, she realised his children were there and had been left alone while he collected her.  Patient 1 said she was concerned about that.  She stated she knew they were there because she went into their separate rooms and saw them asleep.  She described their rooms, the layout of the house and also Mr Laycock’s bedroom and bed.
306	In the Police and AHPRA Statements, Patient 1 said that they sat on the couch and shared some wine.  Patient 1 said she had drunk around two bottles of wine before arriving and, by the end of the night, had consumed about three bottles.  She described being on the couch in the living area and Mr Laycock trying to take her dress off.  She said she just let him do it.  He took her dress off and then he went and got her another glass of wine.  
307	At some stage, Mr Laycock and Patient 1 went into the bedroom and had intercourse.  In her Police Statement, Patient 1 stated that at the time she was so intoxicated she was almost unconscious and she awoke to find Mr Laycock on top of and inside her.  Patient 1 stated that she was worried because she was not on the pill and she was frightened Mr Laycock would get her pregnant.  When she told him she was not on the pill, he said he had had a vasectomy so it did not matter.
308	In her Police Statement, Patient 1 said she remembered wishing that it would stop so she could leave.  She stated she was not capable of stopping him and was barely conscious.  After he came inside her, she told him she needed to go home.  She recalled stumbling out into the living room and getting dressed.  She asked Mr Laycock to call her a cab.  She took the taxi to her partner’s house.  She said that she knew she was really drunk because she could not open the front door and her partner had to let her in.  She fell inside and landed on the floor.  Her partner picked her up and put her into bed.
309	We pause to record that Patient 1’s partner made a statement to Victoria Police and gave evidence at the Committal hearing.  In his written statement he confirmed those events he was involved in and he was not required for cross-examination before us.  
310	Patient 1 said in her Witness Statement that she was extremely ill the next day due to her alcohol intake.  She also stated that she felt it was all horrible and wrong with the children in the house and she felt uncomfortable being in Mr Laycock’s wife’s bed.  
311	The telephone records show that Patient 1 texted Mr Laycock at 00:42am on 5 July 2015 saying ‘U miss u’ and that Mr Laycock replied ‘U to goodnight’ five minutes later.  Patient 1 texted five more times saying she loved Mr Laycock, that they needed to talk, she wished him good night and then asked him to talk to her.  They exchanged eight texts the next day, largely about how sick Patient 1 felt.  
312	Patient 1 produced a bank statement which showed two taxi fares being charged to her credit card of similar amounts.  The first was debited on 6 July 2015 and the second on 7 July 2017.
313	In cross-examination, Patient 1 was asked to confirm matters such as her statement she took a taxi to the shopping centre and was met by Mr Laycock there, the degree to which she was intoxicated and whether she maintained she had sexual intercourse at his home.  She maintained her earlier evidence about those matters.
314	She was referred to text messages sent between 00:42 am and 9:20 am on 5 July 2015 which said as follows:
Patient 1 (00:42): 		U miss u
Mr Laycock (00:47): 	U to (sic) good night
Patient 1 (00:48): 		I miss u
Patient 1 (00:54): 		I love iu (sic)
Patient 1 (00:59): 		We need to talk
Patient 1 (1:04): 		Goodnight
Patient 1 (1:08): 		Please talk to me
Mr Laycock (9:11): 		Sorry I went to bed sorry I missed you talk later
Patient 1 (9:14): 		It’s ok I’m really hung over I don’t know if I can do this I wanted to go to bed with you not leave in the middle of the night
Mr Laycock (9:20): 		I’m sorry we can talk later kids are busy
315	Patient 1 said that series of texts were sent by her post-intercourse while she was in the taxi home and that by then she was quite intoxicated.  
316	Patient 1 was told that it was Mr Laycock’s position that:
•	He did meet Patient 1 at the shopping centre but told her he had changed his mind and was backing out – Patient 1 disagreed he said that;
•	He said goodbye to her and she never came back to his house – Patient 1 disagreed;
•	They never had sexual intercourse at his house – Patient 1 disagreed; 
•	He said her text referring to wanting to go to bed with him and not leaving in the middle of the night showed she did not come to the house – Patient 1 disagreed saying it meant she wanted to stay overnight and not leave by taxi.
317	We again record that Patient 1 was not cross-examined about the layout of Mr Laycock’s house including whether the children shared a room or about Mr Laycock’s bedroom.
Mr Laycock’s evidence 
The April 2018 Response
318	In the April 2018 Response, Mr Laycock referred to the text messages discussing Patient 1 coming to his house and his invitation for her to do so.  He denied she went to his house or that he had sexual contact with her.  He said ‘It was nothing more than text messages’.
319	He later said this about the alleged visit:
This did not happen.  [Patient 1] did not come to my house.  She is not able to describe my physical anatomy.  I did not meet [Patient 1] at the [shopping centre] and leave my two young children at home alone.  She does not describe my house accurately.  My children don’t sleep in separate rooms, they sleep in the same room.  [Patient 1] also states that I picked her up in my car and yet she inaccurately described my car and she has supposedly been inside it several times.
Evidence at the hearing 
320	At the hearing, for the first time, different evidence was given.
321	During his evidence-in-chief, Mr Laycock stated that there was a plan for Patient 1 to come to his house.  He put the children to bed and then went to meet her at the shopping centre mentioned earlier.  When they met he said he could not do it and he expressed concern about what he would do if the children woke up.  
322	He was asked what he had expected would happen when the plan was made.  He said he thought they would have a glass of wine and, if something were to happen, it would happen.  He said we (apparently referring to the Tribunal panel) should ‘use our imaginations’ and that he thought something would have happened had she come to his house.  He confirmed his wife was at work, doing night shift.
323	Mr Laycock was asked why he changed his mind.  He said he thought about the implications there would have been if that had all happened – he was worried the children would ‘see some naked girl when they came out’ and that it would not look good.  
324	He described leaving the children in bed and meeting Patient 1 after deciding not to go ahead and having a glass of wine to relax.  He said she was standing out front of the shopping centre in a ‘red thing’ (described in cross-examination as a ‘skanky dress’).  He said she was looking ‘provocative’ at the time.  He told her he ‘could not do this’, mentioned his children were at home and asked if she could get a taxi home.  Mr Laycock said Patient 1 was ‘not happy at all’.  He was asked if she got a taxi home.  He said he did not know as he just left.  He said he was there for about five minutes.
325	Mr Laycock was asked whether Patient 1 ever came to his house.  He said ‘No’, that there was no opportunity and no time to organise anything even if he wanted that.  He was asked whether he met Patient 1 anywhere other than Street A and he said no – they met there because of the convenience of that place.  
326	In cross-examination, Mr Laycock confirmed his evidence that Patient 1 was not happy when he said she could not come to his home and that he did not know how she got home but assumed she took a taxi.
327	He was taken to the text messages sent out earlier, leading to the meeting at the shopping centre, and then those which followed around two hours later.  It will be recalled, Patient 1 referred to missing Mr Laycock and wanting to stay.  Mr Laycock suggested those later texts must have been sent by Patient 1 after she had returned home (rather than in the taxi).  It was put to Mr Laycock that, during those two hours between meeting at the shopping centre and her sending the texts, he had in fact taken Patient 1 to his house.  He denied that.
328	Mr Laycock was taken to a text message he sent Patient 1 in mid-August 2015 which said in part ‘maybe you can come over again soon’.  In the context of Mr Laycock’s denial Patient 1 had been to his house, it was suggested that message indicated otherwise and that it indicated that, at some time, she had been to his place.  Mr Laycock agreed it appeared that way.  He maintained Patient 1 had never been to his house.
329	It was put to Mr Laycock that the reason Patient 1 knew he had a vasectomy was because they had intercourse at his house as described, Patient 1 was concerned she might become pregnant, asked him about it and he said he had a vasectomy.  Mr Laycock said he did not recall that.  He gave evidence he had told Patient 1 about having the vasectomy in a telephone call during which he said he referred to having had two marriages and four children.  The Board’s counsel put it to Mr Laycock that he was making it up as he went along.  He denied that, saying Patient 1 had asked him in the context of a flirtatious conversation they were having about sex.  He could not identify when that conversation happened as it was a long time ago.  
330	As to the broader relationship with Patient 1, it was put to Mr Laycock that the text messages indicated a relationship between the two of them – he agreed they thought a lot of each other and that they had intimate discussions.  
331	He was asked why he had denied meeting Patient 1 at all until the evidence given at the hearing.  Mr Laycock referred to feeling guilty in the context of his marriage and his family.
332	He agreed to the suggestion there were feelings of romance between he and Patient 1 and that they were both helping each other.  He had referred to Patient 1 then becoming very needy and desperately texting him.  He was asked when that developed and he indicated that was within a few months.  He explained he asked himself ‘what have I done’ and started to pull away.  He said he pulled away because Patient 1 was getting drunk a lot, said she had been raped by an old friend and was calling him over the telephone (we note that no questions were asked of Patient 1 at any time about that alleged rape comment).
333	Mr Laycock was asked whether Patient 1 consumed alcohol in his company.  He said that did not happen and referred to being on oath.  
334	Returning to the meeting at the shopping centre, Mr Laycock was asked what drinks Patient 1 brought with her.  He said he could not recall her having anything in her hands, that she had nothing with her and was wearing a light ‘provocative’ red dress despite it being freezing cold.  He said she had drunk wine at home, was very drunk and that was one reason he told her to go back home.  Mr Laycock said he would not have given Patient 1 more alcohol when she was so drunk.  When asked about leaving her there alone in that state, Mr Laycock said he was more concerned he had left his children at home.
335	Mr Laycock was asked why he did not text or call Patient 1 to say not to come if he had decided on that course of action rather than getting into the car, leaving his children behind, and driving to meet her.  Mr Laycock referred to her travelling a distance to get there.  It was suggested that the evidence was more consistent with him meeting with Patient 1 and then taking her to his house.  He denied that.
336	Mr Laycock explained that, at the time he responded to AHPRA in 2018, he was worried about his relationship with his wife and family and so did not tell them he had planned for Patient 1 to come to his house and about meeting her at the shopping centre.  Mr Laycock stated he had told his wife about that ‘a few months back’ (presumably in around January 2021, being about three months before the hearing).  He agreed that the first time he had admitted going to the shopping centre was during his evidence and that he had not given full details in the past.  
337	We record we had no statement or evidence from Mr Laycock’s wife as to what she had been told or when.
Findings 
338	On the question of proof of this particular, in its submissions, the Board contended that Mr Laycock’s response was implausible, particularly in light of his subsequent evidence regarding the circumstances of his attending the shopping centre to tell Patient 1 that he was backing out of the plan.  None of the events as asserted by him were said to be logical or consistent with his purported state of mind on the relevant night, let alone the other evidence in the case including the text messages surrounding the meeting.
339	Mr Laycock’s submissions referred to his explanation as to why he was reluctant to be open about the meeting with Patient 1 at the shopping centre and their plan for her to come to his house – in short, he was fearful about his wife’s reaction and ashamed for leaving the children alone.  Reliance was also placed on the broader submissions concerning his changed evidence before the Tribunal.
340	We are comfortably satisfied the particular is proven for the following reasons.  
341	Patient 1’s account has not only been consistent since the making of the Police Statement in 8 September 2015, but is coherent and logical.  
342	We accept the evidence that she had drunk a large amount of alcohol by the time she arrived at Mr Laycock’s house but note there was no submission that (or it in combination with medication) meant Patient 1’s memory was unreliable.  The aftermath of the evening as described by her partner in his witness statement was consistent with the evidence given by Patient 1.
343	It was not only the lateness of Mr Laycock’s admission that he planned for Patient 1 to come to his house and that he met her at the shopping centre that raised questions.  
344	We found his explanation that he left his children at home alone and went to the shopping centre to say the plan was off face to face (despite being concerned about being found out and upsetting the children and his wife) to be implausible.  We found the explanation for not sending a text message instead to be equally implausible.  In our view, that evidence was an invention designed in response to the content of the text messages.  
345	In our view, those text messages were entirely consistent with Patient 1’s account not only in terms of content but also in timing.  Further, there could have been no reason for Mr Laycock to send a text saying that Patient 1 could come over again if she had never been to his home before.
Allegation 1 – Patient 1 – Third Admission – particulars (vii)(A) and (B)
346	Patient 1’s third admission to the Hospital was from 11 August 2015 to 28 August 2015 (Third Admission).
347	The relevant particulars say:
(vii) 	during the Third Admission:
(A)	*Mr Laycock and [Patient 1] engaged in telephone conversations and exchanged text messages unrelated to her clinical care;
(B)	on or about the morning of 13 August 2015, Mr Laycock entered [Patient 1’s] room at the Hospital and kissed [Patient 1] on the lips . . .
Patient 1’s evidence 
348	Patient 1 was re-admitted to the Hospital on 11 August 2015.  She was allocated a shared room.  In her AHPRA Statement, Patient 1 referred to certain events as having happened on 5 August 2015 but in her Witness Statement confirmed they occurred on 13 August 2015, after her re-admission.
349	The copies of text messages before us show that Patient 1 and Mr Laycock were in contact prior to the re-admission.  The text messages show Patient 1 was in extreme distress and had harmed herself.  Mr Laycock had asked that she ‘come over please’ and she responded saying she could not drive and referred to injuries on her arms.  
350	Patient 1’s Police Statement said this about events on 13 August 2015:
35.	I got admitted on the Tuesday.  Darren came in a few days later to do an AM shift.  It would have been the Thursday morning.  He was rostered on to be my contact nurse.  I was having a really bad day.  I hadn’t been sleeping because the girls (sic) I was sharing with had been screaming all night.  I went to find him in the morning because she was screaming and she needed someone.
36.	He came in when I was in my half of the room.  He didn’t need to come to my side of the room at all because the other girl’s bed was closest to the door.  He came into my area without knocking, I was getting changed and there was nothing on my top half.  I told him to get out, that the other girl needed him, not me.  He said ‘Sorry’ and left.
37.	I finished getting changed and I left the room.  I sat with some other patients in the top room.  I wasn’t feeling well at all.  One of the other girls went to get Darren because I wasn’t doing well.  A nurse came and told me to go back to my room and Darren would come and see me soon.
38.	Darren was asking what was wrong and I told him that I wasn’t feeling well, he told me that it was going to be ok and kissed me on the mouth.  He left the room because the other girl was there.
Mr Laycock’s evidence 
351	As is apparent from the discussion above, in the April 2018 Response, Mr Laycock denied kissing Patient 1 and, in his evidence before the Tribunal, he denied kissing her in the Hospital at any time, other than in a common area to say goodbye when she was being discharged.
352	In evidence-in-chief, Mr Laycock was asked about the alleged kiss on the lips on or around 13 August 2015.  He denied that happened and said he wanted to keep it as professional as possible and that he ‘tried hard’ to do so.
353	In more general terms, Mr Laycock said, at around that time, Patient 1 started showing desperate behaviour – she was texting him more than he was texting her.  He referred to feelings of romance between the two of them and talking about meeting with friends.  He said Patient 1 had a ‘desperate need’ for him, referring to her having issues with alcohol, self-harm and overdosing.  He said she scared him and he was ‘in way too deep’.  
354	Mr Laycock gave evidence that he tried to step back and suggested they just be friends but that was not successful.  There seemed to be a suggestion there was a link between him stopping contact and ‘what happened’ – presumably a reference to the complaints and following criminal charges.
Findings 
355	As indicated by the asterisk, particular (vii)(A) is admitted by Mr Laycock and we find it proven.
356	The parties made no further specific submissions about particular (vii)(B) but, as we understood it, relied upon the other submissions about conduct of the kind described and matters of credit.
357	The event described was said to have occurred on 13 August 2015.  Patient 1’s Police Statement was made on 8 September 2015, a little less than a month later.  She has maintained that evidence since.
358	We are comfortably satisfied that the particular is proven given that consistent evidence and the fact we give greater weight to Patient 1’s evidence to that of Mr Laycock.
Allegation 1 – Patient 1 – Third Admission – particular (vii)(C) 
The particular 
359	The particular says:
(vii) 	during the Third Admission:
(C)	on or about the afternoon of 13 August 2015, Mr Laycock:
(I)	asked [Patient 1] to sign herself out of the Hospital for the purpose of meeting with him;
(II)  	arranged to meet with [Patient 1] on [Street A] in his car;
(III)	met with [Patient 1] in his car;
(IV)	told [Patient 1] words to the effect that he loved her and he wanted to leave his wife; and/or
(V)	asked [Patient 1] to perform oral sex on him, with which she complied . . .
Patient 1’s evidence 
360	The mobile phone records show that Patient 1 texted Mr Laycock in the afternoon on 13 August 2015 saying she was in the shower and to come and say goodbye before he left.  Another text message followed immediately after which said: 
I wanted to be with you badly.  I promise I will do the homework for me and for you.  I will see you Sunday.
361	That text message was said to have been sent after the kiss mentioned above.  In the Police Statement, Patient 1 said that, Mr Laycock came to the room and said goodbye.  
362	It appeared that further text messages were exchanged as follows:
Mr Laycock: 	Me too maybe you can come over again soon xxxooo
Patient 1: 		Yeah I will what shift you have sun?
Mr Laycock: 	Pm
Patient 1: 		Ok look forward to it thank you for helping me today I care about you a lot xx
Mr Laycock: 	Talk later see you Sunday
 	Can you sign out 30 minutes
Patient 1: 		Yes [followed by] When?
Mr Laycock: 	Now at usually (sic) place
Patient 1: 		Yes coming
363	Patient 1 said in her Police Statement that, before agreeing to meet Mr Laycock, she said she could not meet him because she was in Hospital but he told her to sign out and meet him around the corner from the Hospital.  Her Police Statement then said she signed out and met Mr Laycock in his car in the street near the hospital, that is, Street A.  She estimated that would have been about an hour after he finished his shift.  
364	In her Witness Statement, Patient 1 explained that, at the time, she was permitted unaccompanied leave but was required to sign a ledger on each occasion in order to leave the Hospital and upon her return.  She stated she had seen a document which showed the various entries for that day which had been signed by her.  That evidence was not challenged.  
365	Returning to the Police Statement, Patient 1 said she got into his car and they were just talking.  She stated that Mr Laycock was telling her to discharge herself and to leave the hospital.  He started telling her about how he was not doing well with his mental health and how he was having problems with his wife.  She said she did not want to be there but she felt she did not have a choice other than to go and see him.  
366	Patient 1 then said: 
Darren unbuttoned his pants and pushed my head into his lap.  He said ‘Can you just make me cum and then you can go back to the hospital?’  I gave him oral sex until he came in my mouth.  I said that I had to get back because I only had leave for half an hour.  I got out of the car.
367	In the AHPRA Statement, Patient 1 referred to an earlier description of Mr Laycock’s car and said the above events occurred in that car.  The car was described as an older silver small hatchback that she believed was a Nissan.  She said it had a car seat in the back seat for a small child.
Mr Laycock’s evidence 
368	In the April 2018 Response, Mr Laycock denied the alleged oral sex said to have occurred during Patient 1’s Third Admission in August 2015.  He responded to allegations about meetings in his car as follows:
Her description of my car is not correct.  She states that it is a Hatchback and it has one car seat in the rear and it is a Nissan Pulsar.  It is a sedan not a hatchback, it is not a Nissan Pulsar and it has two car seats in the rear for two young children.  It is also a similar description that [Patient 2] gave of the car in her statement to the police.  I have copies of the car photos taken prior to the criminal court proceedings in December 2016.
369	The photos of Mr Laycock’s car were not produced.
370	Mr Laycock also referred to errors in Patient 1’s description of his anatomy.
371	As set out earlier, Mr Laycock’s evidence at the Tribunal was that he had met Patient 1 in Street A around three times and they had kissed and touched each other outside their clothes while standing in the street.  He denied any sexual activity occurred in a car and maintained Patient 1 was incorrect about the kind of car he drove.
372	He was asked specifically about the alleged event on 13 August 2015.  Mr Laycock denied he met Patient 1 in Street A on or around 13 August 2015 and that she performed oral sex on him in his car.  He said that could not happen in a vehicle and that it did not happen.
373	As set out earlier, in his evidence at the hearing, Mr Laycock agreed he had met Patient 1 in Street A on around three occasions.  He had placed the first occasion during Patient 1’s Second Admission in April to May 2015 and the other two between May and August 2015.  
374	Mr Laycock was asked by his counsel about the car mentioned by the two Patients.  He said he could not recall which cars he had at the time.  
375	Mr Laycock did not produce or refer to the photographs of his car he mentioned in the April 2018 Response.
Findings
376	Having regard to the text messages set out above, we find that on 13 August 2015, Mr Laycock asked Patient 1 to sign herself out of the Hospital for the purpose of meeting with him and arranged to meet with her on Street A.  For the same reasons given earlier, we accept Patient 1’s evidence that the meeting was in a car rather than standing on Street A.  As a result, we find particulars (vii)(C)(I) to (III) proven.
377	Having reviewed Patient 1’s various statements and considered her evidence at hearing, we cannot find that, on that date, Mr Laycock told Patient 1 words to the effect that he loved her and he wanted to leave his wife (particular (vii)(C)(IV)).  Having said that, we accept Patient 1’s evidence words of that kind were said by Mr Laycock from time to time.  We accept her statement that he discussed with her his relationship with his wife on 13 August 2015.  
378	On the question of timing and whether these events could have happened in broad daylight, the text messages indicate the meeting took place at around 3 to 3:30 pm in the afternoon.  Even in August it is not usually dark, or close to it, at that time.  The timing question has not clarified the evidence.
379	We accept Patient 1’s evidence that she performed oral sex on Mr Laycock in his car.  We make that finding on the same basis as that set out in respect of the earlier alleged oral sex in the car in Street A (particular (vi)(B)) and on what we regarded as his more than surprising evidence that he could not recall what car he was driving at that point in time.
380	As a result, we are comfortably satisfied that particulars (C)(I), (II), (III) and (V) are proven (but not (IV)).
Allegation 2
381	Allegation 2 was that Mr Laycock engaged in professional misconduct or unprofessional conduct when he failed to maintain the boundaries that should, and ordinarily do, delineate the relationship between a nurse and his patient and/or former patient, being a person who is or has been previously under his care.  The Board relied on 21 substantive particulars to prove the Allegation as it concerned Mr Laycock’s dealings with Patient 2. 
Allegation 2 – Patient 2 – First 2015 Admission 
382	Patient 2 gave some evidence about her first meeting with Mr Laycock which occurred during an admission between early January 2015 and mid- February 2015.  There were no allegations about these matters but they assist in providing background.
383	In her Witness Statement, Patient 2 said:
•	It was during the first admission in January to February 2015 (First 2015 Admission) that she began to notice particular aspects of Mr Laycock’s behaviour and conduct towards her.  For example, over the duration of the admission, Mr Laycock more frequently came into her room without reason – that is, he was not her assigned contact nurse, she did not make a request for his attendance and he came into her room of his own volition;
•	On those occasions, Mr Laycock did not attend her room for any particular clinical purpose, but came in to have a chat.  They exchanged general small talk, such as Mr Laycock asking how she was feeling.  On many of those occasions, Mr Laycock sat at the foot of her bed as he spoke to her.  The frequency of that type of conduct increased during her admissions in 2015;
•	She thought Mr Laycock’s behaviour was unusual compared with the other nurses she had interacted with during previous admissions to the Hospital and since then.  She explained that, ordinarily in her experience, contact nurses usually stood in the doorway or quickly popped into the room when they were checking in on her.  She recalled that Mr Laycock was the only nurse who sat on her bed;
•	During the First 2015 Admission, Mr Laycock provided her with his personal mobile phone number that was written on a piece of paper.  Mr Laycock said to her words to the effect that he could offer her support if she wanted to talk to anyone when she was not at the Hospital; and 
•	As to the telephone communications (apparently during and soon after the end of the First 2015 Admission), she said Mr Laycock rang and sent text messages to her mobile phone number.  On a number of occasions, Mr Laycock asked her what she was doing and if she could meet him or see him at his house at night.  Mr Laycock said to her words to the effect that his wife was on night shift and that his children were in bed.  Mr Laycock told her the suburb where he lived.  She stated that, when Mr Laycock raised that with her, she tried to avoid the conversation as much as possible as it made her feel uncomfortable.
384	Patient 2’s AHPRA Statement contained additional detail about Mr Laycock’s behaviour during the First 2015 Admission, including how he asked her for her mobile phone number and hugged her at that time.  She also referred to him talking about his private life, problems in his marriage and his second job as a gardener.  She stated that he asked her to meet him on gardening job sites and she also said he told her he loved her.
385	Mr Laycock gave some evidence about his early dealings with and impressions of Patient 2 at the hearing.
386	Leaving communications between them aside for now, Mr Laycock referred to escorting Patient 2 to the wound clinic a number of times for treatment of self-inflicted injuries to her arms.  He stated he felt sorry for her.
387	As to the nature of the relationship, he said he was a friend to Patient 2, they talked about her problems (and not his) and he offered her advice.  He said she did not want help and that she sabotaged his efforts to do so.
388	Mr Laycock stated he was not attracted to Patient 2.
Allegation 2 – Patient 2 – March 2015 Admission – particulars (v)(A) and (B)
The particulars
389	The particulars say:
(v)	during [Patient 2’s] admission at the Hospital between 4 March 2015 and 28 March 2015, Mr Laycock:
(A)	provided his personal mobile phone number to [Patient 2] without clinical justification;
(B)	engaged in telephone conversations and exchanged text messages with [Patient 2] unrelated to her clinical care . . .
Patient 2’s evidence 
390	We set out earlier Patient 2’s evidence from her Witness Statement as to how she came into possession of Mr Laycock’s mobile phone number.  
391	At the hearing, Patient 2 was asked about how her dealings with Mr Laycock commenced.  She confirmed that, initially when he was her contact nurse, they would chat with him asking how she was.  Over time, the interactions became conversations between them including some information about their personal lives.  
392	When asked about whether the conversations became a two way flow of information, Patient 2 said she provided information relevant to her stay in Hospital in the usual way, representing the flow of information from patient to nurse.  She said the flow of information from nurse to patient was not usual and that occurred only with Mr Laycock.
393	Patient 2 said that, in the beginning Mr Laycock seemed to be helpful, kind and caring.
394	There were a number of questions about the communications between them by telephone.  Patient 2 confirmed there were telephone calls between mobile phones, texts messages and that Mr Laycock would call her on the landline at the Hospital.  She agreed that the Telstra records mentioned earlier showed the first contact was around 15 March 2015 and that was during the second 2015 admission (between 4 and 28 March 2015 – the Second 2015 Admission).
Mr Laycock’s evidence 
The April 2018 Response
395	As was the case with Patient 1, Mr Laycock admitted he had breached professional boundaries with Patient 2 by forming a personal relationship, being a friendship, with her.  He also admitted that relationship included discussing his personal information with Patient 2 in person and by phone.
396	Mr Laycock stated that he formed a friendship with Patient 2 while she was a patient at the Hospital, speaking to her about her relationship with the Partner and her mental health issues, as well as his own issues.
397	He repeated the statements about his own mental health in the relevant period.  He also referred to the admitted breaches of professional boundaries leaving him vulnerable to allegations of sexual misconduct by the two Patients.  He again stated that he understood that, as psychiatric patients, they were vulnerable and the breaches of professional boundaries may have an adverse impact on their medical condition.
398	As to the mobile phone communications with Patient 2, Mr Laycock said he gave Patient 2 his mobile number during her March 2015 admission and there was contact between them in the period 23 to 30 March 2015 (as proven by his phone records).  It was not entirely clear whether that evidence was intended to suggest he only gave her the number in the latter part of March 2015.  
399	Mr Laycock denied sending text messages to Patient 2, referring to the fact the phone was not forensically analysed by police.  He expressly denied inviting Patient 2 to his personal residence or sending messages with kisses and hugs on them.  He noted there was no date or time stamp on the text messages.
Evidence at the hearing 
400	As summarised earlier, during the course of his evidence-in-chief and cross-examination, Mr Laycock conceded that the text messages on Patient 2’s mobile phone sounded like him, as in they were consistent with his style of language and use of abbreviations when texting.  He also eventually acknowledged that the mobile phone number which appeared in the photographs was his.  As mentioned earlier, he gave some evidence about a mobile phone application which creates fake text messages and said, when he looked at that and compared it to the photographs of Patient 2’s text messages, he thought there were similarities.  
401	Nevertheless, while he never definitively agreed he had sent Patient 2 texts, he agreed it was ‘highly likely’ those before us came from him.  
402	In his evidence-in-chief Mr Laycock was taken to a message which said ‘You can come over tonight if possible for you?  Let me know after 900pm’.  He described that message as a ‘desperation thing’ and said it ‘sounds like it was me’ and it ‘could have been me’.
403	Mr Laycock was then referred to the April 2018 Response and his denial that he had sent messages to Patient 2.  Mr Laycock again referred to being concerned about whether the messages were real or not and then conceded they looked like his style of texting.  It was put to him that he was not disputing the text messages were between himself and Patient 2.  Mr Laycock’s response was that he believed they probably were.
404	Mr Laycock was taken to a message which said ‘I can meet you at [the Hospital] tomorrow arvo if that’s a plan’.  He said that message sounded like him.  
405	In cross-examination, Mr Laycock was asked further questions about the message he sent Patient 2 suggesting she come over ‘tonight’.  He was asked for the context.  Mr Laycock said he was worried about Patient 2.  He was asked whether he was so concerned about her that he invited her to come to his home.  He agreed it could be perceived that way and then said it was ‘absolutely inappropriate’ and that he conceded that was what he had proposed.  
406	Mr Laycock also gave evidence that Patient 2 called him and talked about matters he thought she should be raising with her doctor.  
Findings 
407	As we understood it, given Mr Laycock’s admissions at the hearing, his counsel did not make any direct submissions about whether these particulars were proven.  
408	We noted that Patient 2 placed the handing over of Mr Laycock’s mobile phone number as occurring during her first 2015 admission – that is in January 2015 and not March 2015 as alleged – however the Telstra records mentioned earlier showed that the first communication occurred on 15 March 2015.  When that matter was raised with her at the hearing, Patient 2 agreed that later date appeared to be correct.  
409	While we cannot make a clear finding as to when the mobile phone number was provided (as opposed to being used for the first time), having regard to Patient 2’s evidence and the text messages themselves, we were satisfied it was provided without clinical justification and that, in March 2015, Mr Laycock and Patient 2 engaged in telephone conversations and exchanged messages unrelated to Patient 2’s clinical care.
410	Particulars (v)(A) and (B) are proven except as to whether the mobile phone number was provided in the period January to February 2015 or March 2015.  We do not consider the precise date to be material.
Allegation 2 – Patient 2 – March 2015 Admission – particular (v)(C) 
The particular
411	The particular says:
(v) 	during [Patient 2’s] admission at the Hospital between 4 March 2015 and 28 March 2015, Mr Laycock:
. . . 
(C)	on a number of occasions in March 2015, entered [Patient 2’s] room at the Hospital, where he:
(I)  	sat beside [Patient 2] in her bed;
(II)  	hugged [Patient 2]; 
(III) 	kissed [Patient 2];
(IV) 	said words to the effect that he loved [Patient 2];
(V) 	placed his hand under [Patient 2’s] clothes and touched her breast; and/or
(VI) 	placed [Patient 2’s] hand on his crotch and said words to the effect see what you do to me . . .
Patient 2’s evidence 
412	Patient 2 was re-admitted to the Hospital in March 2015, about three weeks after her earlier discharge.  She stated that, during that admission, Mr Laycock continued to come to her room and his behaviour escalated.  
413	In her Witness Statement, Patient 2 referred to her description of events in the Police and AHPRA Statements.  She described the first time Mr Laycock kissed her in paragraph 9 of her Police Statement as follows:
It was maybe in the afternoon, sometime in March 2015.  I was sitting in my bed.  He came and sat beside me and started hugging me and he went to give me a kiss on the lips but I pulled back because I was really shocked.  He pulled me back and said ‘It’s ok’ and started full on ‘pash’ kissing me.  I couldn’t pull away.  It was invasive.  It seemed like it went forever but it lasted maybe 40 or 50 seconds.  He told me he loved me and then he had to leave.  I didn’t respond in anyway, I didn’t know what to say, I thought that this was very inappropriate and awkward.  I was shocked.
414	In her AHPRA Statement, Patient 2 said that when Mr Laycock first kissed her, she ‘was completely shocked and worried and fearful.  I am not sure where the fear came from.  I knew it was not right but did not know what I could do about it.’
415	As to the other sexual contact, Patient 2’s Police Statement continued on as follows after the description of the kissing above: 
10.	He was always in and out pretty quickly.
11.	That type of thing would happen most of the days that I was there, when he was on shift.  I never wanted him to kiss me, I was very confused about the situation.  I am engaged and I was worried about it getting out.
. . . 
13.	His coming into my room became a very regular occurrence, it wasn’t long after he started kissing me that he would put his hand up my shirt and touch my breast.
14.	One time he grabbed my hand and made me touch his crotch.  He said ‘see what you do to me’ and I would feel an erection.  He would push my hand up and down to stroke him.  This started to happen more often, I don’t remember when this first happened, I know this was still in March 2015.  I never wanted to touch him and I never wanted him to touch me.  I became so used to this behaviour and so frightened about what would happen if I didn’t do this; that after a while, he would put my hand on him and I would stroke him without him helping me.  I didn’t know what to say or do, I didn’t know who I could talk to.
416	In her Witness Statement, Patient 2 added the following regarding interactions with Mr Laycock during her March 2015 Admission:
19.	From the second admission, Mr Laycock began to tell me more personal information about himself.  Mr Laycock told me that he wanted to move away and that he did not have a good relationship with his wife.  Mr Laycock also began to tell me that he loved me.  Mr Laycock said to me words to the effect that he wanted to run away with me and that he could love me more than [the Partner].  Mr Laycock further said to me words to the effect that finances would be difficult as he could not provide the same financial security if we were in a relationship but that he could love me more.
20.	When Mr Laycock told me these things I felt shocked.  I did not understand why he was saying these things to me.  I avoided responding to Mr Laycock in any detail and let him talk.  I avoided responding or replying to him.
21.	At paragraph [32] of the Police Statement, I describe the occasions when Mr Laycock tried to put his hand down my top or my pants.  I confirm that these events occurred in my room at [the Hospital] when I was in my bed.  I do not recall the date that Mr Laycock first attempted to put his hand down my top however I recall that it was when my left arm was in a cast.  I think that it was during my second admission to [the Hospital] in 2015.
417	Paragraph 32 of the Police Statement said this:
He would always try to put his hand down my top or pants.  I started wearing the tightest clothing I could when he was on shift so that it wouldn’t happen but he would still try.  I would pull his hand away from me.  I had nowhere to go and I couldn’t fight him off because I was too frightened about not being believed.  So I started to just pretend that it wasn’t real and it wasn’t happening.  I began to leave my mind when it was happening.
418	No specific questions were asked of Patient 2 about particular (v)(C) at the hearing, whether in cross-examination or re-examination.
Mr Laycock’s evidence 
The April 2018 Response 
419	In the April 2018 Response, Mr Laycock denied kissing Patient 2 or having any physical contact with Patient 2.  He denied any sexual activity of any kind.  Mr Laycock made statements to the effect that Patient 2 had incorrectly referred to him being uncircumcised.  He added:
[Patient 2] states that I have no scars on my body in her notification to APHRA.  This is untrue.  I have multiple scars on my back from acne I had as a child and from abscesses l have had taken off.  There is a scar on the middle parts of my back.  I am happy to see a General Practitioner chosen by APHRA to prove that I am both circumcised and have multiple scars on my back.
Mr Laycock’s evidence at the hearing
420	Mr Laycock was asked about the events said to have occurred in the Hospital in March 2015, namely that he entered Patient 2’s room, hugged and kissed her, told her he loved her, put his hands under her clothes, touched her breast and placed her hand on his crotch.  His evidence was that those events did not occur.  
421	In the context of evidence-in-chief about the broad range of allegations concerning Patient 2, Mr Laycock was asked whether he had ever kissed her.  He said he may have when kissing her goodbye on discharge.  He referred to being Patient 2’s contact nurse and her being difficult due to a personality disorder.
422	He was asked whether there were any other kisses or hugs at the Hospital.  Mr Laycock said ‘No’.  
423	He was asked whether there were any sexual acts between himself and Patient 2 and he said ‘none’.  
424	He was asked whether there had been any touching of breasts or crotches and he said ‘No’, again referring to feeling sorry for Patient 2 and wanting to help her.  
Findings 
425	As we understood it, Mr Laycock’s submissions relied on the questions raised about the overall reliability of Patient 2’s evidence (particularly arising from the alleged Park Incident on 23 March 2015) and the unlikelihood of sexual contact of any kind, given the nature and content of the text message communications before the Tribunal and Patient 2’s subsequent communications with Mr Laycock.  
426	Accordingly, Mr Laycock submitted that Patient 2’s evidence more generally ought not to be accepted.  The submissions noted that the other alleged incidents (including these) were only broadly particularised as to dates and times and that the lack of detail diminished the force of the Allegations, particularly in the face of Mr Laycock’s clear denials.  
427	For the reasons given, we prefer Patient 2’s evidence over that of Mr Laycock.  We have noted the account of these events was first given to Victoria Police in September 2015 and has been maintained since.  While we agree that the timing of the events is not precise, we are comfortably satisfied that Mr Laycock engaged in the conduct described in the relevant period.  We say that because of the references in Patient 2’s statements to the conduct being repeated and occurring regularly during the March 2015 Admission. 
428	The elements of particular (v)(C) are proven.  
Allegation 2 – Patient 2 – March 2015 Admission – particular (v)(D) 
The particular 
429	Particular (v)(D) says:
(v)	during [Patient 2’s] admission at the Hospital between 4 March 2015 and 28 March 2015, Mr Laycock:
. . .
(D)	on or about 23 March 2015, [Patient 2] met Mr Laycock outside [a pharmacy], where Mr Laycock:
(I)	drove [Patient 2] in his car to a nearby park where they sat on a park bench;
(II)	kissed [Patient 2] on the lips and breast and placed her hand on his crotch;
(III)	led [Patient 2] to a public toilet which he and [Patient 2] both entered;
(IV)	attempted to perform oral sex on [Patient 2] in circumstances where she said words to the effect that she did not want to;
(V)	asked [Patient 2] to perform oral sex on him, which [Patient 2] refused; and/or 
(VI)	attempted to engage in sexual intercourse with [Patient 2] in circumstances where she said words to the effect that she did not want to . . .
Patient 2’s evidence 
Statements 
430	In her Witness Statement, Patient 2 referred to the content of her Police Statement as to the events on 23 March 2015.  She added, though, that at the time her left arm was in a cast as she was undergoing reconstructive surgery while at the Hospital.
431	The following description of events on 23 March 2015 comes from Patient 2’s Police Statement:
15.	The next time that I remember is when I was able to have leave during the day from the hospital.  I think this was March 23rd 2015.  I think that he was on an early shift and knew that I was going out for a walk.  He suggested that I catch up for a coffee with him while I was out.  I went for a walk to [a pharmacy] and I wanted to go down to [an opportunity shop] to have a look around.  When I came out of [the pharmacy], I saw Darren.  He was in his car, it was a silver hatchback.  It had a child seat in the back.  I noticed that it was an older car.
16.	Darren asked me to get into the car and I did, he drove straight away.  At this point I thought we were going to a cafe because of the earlier conversation.
17.	We arrived at a park, I don’t know which park but we weren’t driving for long.  We had a conversation in the car and then he stopped and we got out, we walked to a nearby park bench; Darren grabbed and pulled my hand as we walked to the bench.  We sat down on the bench.
18.	While we were sitting on the bench, Darren started to put down [the Partner], saying he wasn’t a good person and didn’t love me like Darren did.  I told him that he had a family and what he was saying was wrong.  He just kept telling me that he loved me.  I would constantly say ‘You don’t even know me, how could you say these things?’  To which his response was ‘It doesn’t matter.’
19.	He moved closer to me and started kissing/pashing me on the lips and neck for some time, I did submit to him, kissing him back, in the hope that that was all he wanted from me, but then he put his left hand down my top, pushing it down and started kissing my chest.  With his other hand, he put it up the back of my top and undid my bra, then making it easier to pull down my top and my bra, completely exposing my chest.  The more I tried to pull my clothes up the more intent he put into it, bordering aggressive.  He kissed and sucked on my breast for about four to five minutes, I was telling him to stop, that this shouldn’t be happening, even telling him that there were people walking nearby, to which his response was ‘doesn’t matter’ I kept trying to move his head away from my chest, but found it difficult with my left arm being in a cast, I was trying to back off the bench and trying to push him away but I was worried about making him angry with me.
20.	He said again ‘You see what you do to me’ after putting my hand on his crotch again.  Wanting me to stroke him.  He took his hand off mine and left my hand on his crotch for me to keep touching, I left my hand there but I didn’t move it.  I didn’t want him to think I was in to it but I didn’t know what to do.
21.	After some time he stood up and invited me for a walk, I thought he had that out of his system.  We were walking on a walking track and we went past some public toilets, there was a disabled toilet.  He was holding my right hand and pulled me in the direction of the toilet, he ushered me into the disabled toilet and said ‘lets just stop here for a minute.’
22.	I asked him what he was thinking.  At this stage I realised I was probably in a little bit of trouble.  He undid my pants in such a rush I think he undid his then too; he was touching me all over my chest and he pulled my pants down and was touching between my legs.  He knelt down on the ground and then I said ‘no’ straight away, I can’t do this, I don’t want to do this!  But he just continued pulling my pants down as far as he could and tried to get me to open my legs so he could try to start licking me.
23.	I tried to guard and block myself, using my left arm with the cast, as I was pushed up against the wall with my right.  I tried to step back from him but he was holding me with one hand around my backside; using that hand to pull my groin toward his head and using his other hand to move my hand away and open up my vagina so he could perform oral sex on me.  He started putting his tongue inside and out of my vagina.  The whole time I was telling him ‘no!’ ‘I don’t want this, please stop, I can’t do this no!’ whilst trying to push him away or pulling him up to his feet.  But nothing that I tried went my way.
24.	He must have realised it wasn’t going the way he wanted it to so he stood up.  At this point he said ‘Suck me off’ to which I said ‘No.’  At this time I remember he tried to have sex with me face to face, standing up but he was too short so it didn’t work for him.  So he turned me around.  He bent me over and he was trying to have sex with me.  My head was against the wall and he was trying.  And I was trying to pull myself away but he was pulling me towards him.
25.	As soon as he got his penis just inside me, I stood up and moved forward, trying to stand up; but he grabbed me and pulled me back onto him again.  I felt like my world had fallen apart.  I was saying no and that I couldn’t do it, I didn’t want to.  He bent me back over and did it again but he couldn’t get very far in because I was moving a lot.
26.	Eventually I was able to stand up straight quickly I turned around and he made me touch him, he told me to suck him and I said ‘no’.  He made me hold his penis in my hand, I just held it, I didn’t move it.  I was frozen, I didn’t know what to do.  He just wouldn’t listen.  Like what I was saying was nothing.  All I was thinking was that I would get in trouble.  I didn’t know where to go because I didn’t know where I was.  The whole time, my fiancé was on my mind, I was worried that this was going to be the end of the relationship, I thought that somehow this was my fault.
27.	He pushed me to the ground on my knees and I was still holding his penis, he was pushing my head towards him and I kept telling him ‘no’ but he wasn’t listening.  He would just say ‘Come on, suck me, suck it.’  I got to the point where I felt that I couldn’t do anything else.
28.	All of the sudden, he looked at his watch and realised that I only had 10 minutes to get back to the hospital.  He told me this and said that I had to get back to the hospital or I would start to get calls.
29.	He drove me to the service station that is across the road from the hospital and I walked back to the hospital.  He told me he was going to get a coffee and go home.
30.	I was crying in his car and I was crying when I got back to the hospital.  I was asked what happened.  I told a similar story but I changed the name of the person.  I was worried that if I said anything about Darren, I wouldn’t be believed over him.  I was so worried about losing [the Partner] if he got told.
432	Patient 2 added some additional detail about these events in her AHPRA Statement.  That included her explanation in paragraph 15(b) that she agreed to meet Mr Laycock because she was going to the shopping centre area anyway and she was: 
thinking that talking to him outside the hospital may give me a chance to talk to him where I can get him to listen to me not as a patient, as it would be kind of neutral ground.  I hoped that it would give me a stronger position, rather than him being my contact nurse in the hospital setting, and I was going to try and confront him about his behaviour towards me.
433	At paragraph 15(g) of the AHPRA Statement, she stated that Mr Laycock did not have any scars, tattoos, or other identifiable features on his body and that ‘I do not believe he is circumcised.’
434	In her Witness Statement, Patient 2 elaborated on her return to the Hospital as follows in paragraph 18:
(b)	when I returned to the hospital, I was visibly upset and was crying.  I spoke to a nurse upon my return but did not tell her what had occurred.  At the time, I played down the event because I was very vulnerable and scared.  I did not know what was going to happen if I told [Hospital] staff what had occurred as Mr Laycock had told me not to tell anyone.  Amongst other things, I was concerned about not being believed as well as [the Partner’s] reaction.  This was because of previous experience with sexual assault in my youth where my disclosures had not been taken seriously.  Based on my history of abuse, it took a long time for me to feel safe to make a further disclosure.  I was very worried that I would not be believed again and I thought it was again my fault.  I was also concerned about [the Partner’s] reaction in particular as I had no family and friends at the time as [the Partner] had isolated me from them.  I was worried about losing his support which would leave me even further isolated; and
(c)	I did not reveal to anyone, at the time, what had occurred that day.
435	The Tribunal Book contained a statement from the nurse mentioned by Patient 2 (referred to in these Reasons as Nurse 1) and it said that:
•	She was the nurse who signed Patient 2 out to leave the hospital on 23 March 2015, and also signed her back in;
•	Patient 2 had one hour unescorted leave that day;
•	When Patient 2 returned she ‘appeared visibly upset’.  When she asked why Patient 2 was upset and preoccupied, Patient 2 said she had ‘met up with an old boyfriend and had gone for a drive and he wanted more but she did not’  She also said ‘I’m OK I’m OK’;
•	Nurse 1 documented the incident in Patient 2’s records referring to it bringing up memories from the past and that Patient 2 would not elaborate on that.  Patient 2 denied any risk issues at the time – apparently a reference to any risk of harm to herself; and
•	Although she had no further contact with Patient 2 during that shift, Nurse 1 reported her concerns to the staff coming onto shift verbally, said she had concerns for Patient 2’s wellbeing but that she could not expand on that due to Patient 2’s unwillingness to verbalise further.
436	The Partner made a statement to Victoria Police.  In it he recounted how, when Patient 2 was discharged in late March 2015, she told him about the events in the park: 
1.	My name is [redacted] and my details are known to police, people call me [redacted] for short.  
2.	I am in a relationship with a woman named [Patient 2].  I have been in a relationship with her for three years and seven months and we live together.
3.	[Patient 2] has had a lot of trauma in her history and her mental health has been suffering for a long time.  She has been diagnosed with borderline personality disorder but this diagnosis is too broad, she also fits symptoms for complex post traumatic stress disorder.  She has a heart of gold, she has been through a lot of trauma but her heart is what matters.
4.		[Patient 2] first started to go to [the Hospital] one and a half to two years ago.  When she went there, she was usually at her lowest, most of the time she went there, it would be for a medication review.
5.	When [Patient 2] came home on March 29th 2015, we were speaking about this man who had attacked her at [the park].  She told me this happened on the 23rd of March 2015.  She told me that she met him at the car park around [a shopping centre] and he asked her to go for a drive.
6.	She told me that she got into the car and they went for a drive, they sat on a bench near the carpark for a while before she went to the bathroom.
7.	[Patient 2] told me that this man forced himself into the bathroom with her and kissed her, touched her, put his hands inside her, turned her around and put himself inside her.  She told me that there was pushing and shoving and he forced her to her knees and she didn’t do anything there because she didn’t want to.  She knew that she needed to be at the hospital soon so she told him this to make him stop.  She told me she didn’t do anything.  She told me that she didn’t know this man or that she knew him from a long time ago.  I asked a lot of questions because it didn’t make sense to me.
8.	I remember that before this incident had occurred, [Patient 2] was a mess and she had had a lot of sedatives, she came and sat in my car and had a cigarette with me and she was telling me that she wanted to go to the shops.  I told her that it was a bad idea because she was too sedated and I was worried about her.
Evidence at the hearing 
437	In cross-examination, Patient 2 was asked whether she recalled the Park Incident on 23 March 2015.  She said she did.  She was taken to her Police Statement.  She was asked if she recalled that she was signed out and back in by Nurse 1 earlier in the day when she went out to have a coffee with the Partner.  Patient 2 said it could have been that day.  She confirmed she left again later that day and that was when the Park Incident happened.
438	Patient 2 was asked about her report to Nurse 1 about being with an old boyfriend – Patient 2 clarified that she told Nurse 1 it was an old male friend rather than a boyfriend, in the romantic sense.  Patient 2 confirmed she did not tell Nurse 1 at that time that it was in fact Mr Laycock.  She agreed that, later when Nurse 1 checked on her to determine if there were any risks or she felt unsafe, she denied there was any problem.
439	The next topic for questions was about calls made and texts exchanged after the Park Incident.  Patient 2 agreed there might have been.  Patient 2 agreed the records showed a number of telephone calls and text messages between herself and Mr Laycock on 23 March 2015 and that there were more over the period 27 to 28 March 2015.  
440	In the context of her discharge after the March 2015 Admission and the Park Incident, Patient 2 agreed she had not told her the Partner that the man involved in the incident was Mr Laycock but that she did disclose that she was attacked by a man in he park.  
441	Patient 2 was taken to the photos of text messages between her and Mr Laycock, and the Partner’s statement that he took them.  
442	She was asked if she recalled the discussion with the Partner about the evening when he asked her about who she was texting and whether she recalled telling him she was texting Mr Laycock and making reference to landscaping work.  Patient 2 replied ‘Yes’.  
443	She was asked about whether it was correct that the Partner was not happy and said words to the effect that it was inappropriate for a nurse to be contacting her on her personal phone outside the hospital or that the communications were inappropriate.  She agreed.  She was asked about the telephone call to Mr Laycock that night that was held on speaker.  She said she recalled that.  She agreed that the records suggested there were communications between them up to about 30 March 2015 when the last call was made – that being the call on speaker in the Partner’s presence.  
444	Patient 2 was then asked whether it was correct that all of that (communication) occurred after the day she said Mr Laycock met her, drove her to the park, took her into the toilets and sexual acts took place.  She agreed that was so.
445	Patient 2 was asked whether she maintained there was further sexual contact in the period after telephone and text message contact ceased in late March 2015.  She did.
446	Patient 2 was asked whether, when her psychiatrist asked about dealings with Mr Laycock, that was the first time anyone had asked.  She said ‘Yes’.  
447	She was asked about being told there were allegations of behaviour by a nurse towards another patient.  Patient 2 explained her psychiatrist said words to the effect there were concerning allegations being made and, if she wanted to talk about anything, she could.  Her response at that time was that she could not talk or did not want to talk because she was concerned about the Partner’s reaction.
448	Patient 2 was taken to that part of her AHPRA Statement where she said she did not believe Mr Laycock was circumcised.  She confirmed she did not believe he was circumcised and then that she was ‘leaning towards’ him being uncircumcised.
449	She was then asked about the scarring on his body (as mentioned in the April 2018 Dr Letter).  Patient 2 said she would not have seen that given the nature of the sexual acts.
450	Patient 2 was asked further about that question in re-examination.  She explained that Mr Laycock never took his shirt off and was never completely naked with her.  She said he kept his clothes on and took his penis out of his pants and it was difficult to see.
451	Returning to the cross-examination, it was put to Patient 2 that Mr Laycock said he did not meet her on 23 March 2015, he did not go with her to a park near the Hospital, did not sit on a park bench and that there were no sexual acts in the toilets there.  Patient 2 maintained those things did happen.
452	It was further put to Patient 2 that, although Mr Laycock exchanged text messages and phone calls with her, there was no sexual activity between them, namely:
•	There was no touching of her breasts;
•	She did not place her hand on his crotch;
•	There was no oral sex;
•	There was no vaginal/penile intercourse;  
•	There was no digital penetration; and 
•	None of those things happened in the Hospital, in a park or anywhere.
453	Patient 2 said she disagreed.
454	Patient 2 was told that Mr Laycock agreed he had crossed boundaries regarding calls and messages and the like but denied anything more had occurred.  Patient 2 said she disagreed.
455	Patient 2 was not cross-examined about her description of Mr Laycock’s car.  
456	She was not cross-examined about why she continued to send text messages to Mr Laycock after the events in the park in March 2015.  
457	She was not cross-examined about the detail of the events, such as about how many people were around, whether the activities on the park bench were observed and, if so, any reaction including to the alleged exposure and kissing of her breasts.  Also, she was not cross examined about the interior of the disability toilet block.
Mr Laycock’s evidence 
The April 2018 Response
458	In the April 2018 Response, Mr Laycock denied engaging in any form of physical contact with Patient 2.  He denied each aspect of the allegation concerning the Park Incident, including by:
•	Denying meeting Patient 2 on 23 March 2015;
•	Denying that he drove her to the park referring to the fact he had called RACV Roadside Assist at 12:18pm for a call out to fix his car as it had broken down – as a result, he could not have driven her anywhere at that time;
•	Stating she had inaccurately described his car by referring to it as a hatchback instead of a sedan and it having only one child car seat in the back when it in fact had two; and 
•	Stating he was working the morning shift that day and so could not have made arrangements to meet her while at work.
459	Mr Laycock noted that Patient 2 did not identify him by name in March 2015 as the person who allegedly assaulted her.  He also referred to Committal hearing evidence that she had referred to an ex-boyfriend and told the Partner the man was a client from her work.  While acknowledging Patient 2 did not identify him by name until August 2015, Mr Laycock also referred to both Patients 1 and 2 being in the Hospital at that time and Patient 2 was informed then he had phone contact with Patient 1.
Evidence at the hearing 
460	We noted that no records about the alleged call out to the RACV were produced.
461	In examination-in-chief, Mr Laycock was asked whether there had been any oral sex or digital penetration and he said ‘no’.  He also denied there having been any penile/vaginal intercourse between him and Patient 2.  
462	Mr Laycock was then asked about the events described as having occurred in the park on 23 March 2015.  Mr Laycock said he did not meet Patient 2 that day, that it was his day off and he was working at his gardening business (giving an address).  
463	No records of that gardening work were produced.
464	He said when he attended work the next day, he was told about the alleged sexual assault Patient 2 had described to another nurse (with no mention of Mr Laycock) and said he ‘nearly fell over’ and was ‘blown away’.  Mr Laycock denied having driven Patient 2 in his car, having been in a park with her and denied that the claimed sexual acts in the toilet or otherwise had occurred.  
465	He said he had never met up with Patient 2 at the pharmacy and park as alleged, explaining his lifestyle was ‘ridiculously busy’ and that it did not happen.  
466	Mr Laycock recalled the conversation held on around 29 March 2015 involving both Patient 2 and the Partner.  He claimed the Partner said words to the effect that he should not be talking to Patient 2, that it was dangerous and then made reference to his own situation.  Mr Laycock said that situation was that the Partner and Patient 2 commenced a relationship when the Partner was treating Patient 2 and he had been suspended for that conduct.
467	Mr Laycock’s evidence was that he did not speak to Patient 2 again after that telephone call.  He denied meeting Patient 2 at the park. 
Findings
468	We have referred above to the submissions made about the likelihood of sexual contact of the kind particularised between Patient 2 and Mr Laycock given the nature and frequency of communications between them before and, most importantly, afterwards.  
469	We can draw no firm conclusions about that evidence.  We agree it appears strange for Patient 2 to have continued having friendly communications with Mr Laycock after the Park Incident.  However, because she was not asked why she continued to communicate in that manner, we had limited capacity to assess how the ongoing messages and telephone communications might have impacted on her credit.
470	As to the evidence about the last conversation with Mr Laycock which involved the Partner too, Mr Laycock did not dispute the order of events and content of the discussion.  In so far as it might be relevant to Patient 2’s credit, we have simply concluded that, because the Partner intervened, the mobile phone communications on both sides stopped.  We do not know if Mr Laycock continued to contact Patient 2 by phone within the Hospital.
471	Mr Laycock also relied on the fact that, when she returned from the park, Patient 2 told Nurse 1 that she had been assaulted but by someone other than Mr Laycock.  As set out earlier, Patient 2 also told the Partner in March 2015 she had been assaulted but did not name Mr Laycock until August 2015.  Further, while Patient 2 told the Director of Nursing about boundary violations by Mr Laycock (in the form of telephone contact and the like) during the August 2015 Hospital investigation, she made no mention of any sexual contact.
472	Mr Laycock’s submissions said, given those matters, the Tribunal could not be satisfied to the requisite standard that the Park Incident took place.  That being so, it called into question the credibility and reliability of Patient 2’s account of all other instances of alleged sexual contact occurring on other days.  
473	We have addressed some of those submissions already.  In addition to those reasons already given, we accept Patient 2’s account due to the following.
474	There was no dispute the Hospital records showed Patient 2 had been signed out for about an hour and that she returned in a highly distressed state.  It was not put to Patient 2 that the events never happened, just that it was not Mr Laycock who was described in the conduct contained in the particular.  
475	As is apparent from the summary of evidence, the Park Incident was reported on Patient 2’s return to the Hospital.  She recounted what occurred in the various subsequent statements with no real variation except that, in August 2015 (about four to five months later), she said it was Mr Laycock involved.  At no time has there been any suggestion as to the identity of the former friend or any other person who could have been at the park on that day.  
476	We accepted Patient 2’s unchallenged evidence that she had been the victim of sexual assault in the past and not been believed.  We accepted her evidence about her fear of losing her Partner and that he had isolated her.  We were also satisfied that, at the relevant time, she was a highly vulnerable patient in the aftermath of a significant mental health episode which involved self-harm, resulting in surgery and her arm being in a cast.
477	We accepted Patient 2’s evidence that she had never seen Mr Laycock naked and so did not have the opportunity to see that he was uncircumcised or to see the scars on his back.  The narrative of events she has given does nothing to disturb that evidence.  For the same reasons as given above, we have no other evidence which assists us to draw conclusions as to whether she must have been aware Mr Laycock was uncircumcised as a result of the sexual activity mentioned.
478	We accepted that Patient 2 did not want to engage in the sexual activity described and that she expressed that to Mr Laycock, including by refusing to perform oral sex.  
479	Although Patient 2 said she thought Mr Laycock was on morning shift on 23 March 2015, he denied that was the case and that appears to be confirmed by records compiled by Victoria Police.
480	As noted above, Mr Laycock provided two explanations about why he could not have been with Patient 2 that day.  He first referred to not being able to drive because his car had broken down and then he said he was at a gardening job.  Had either of those been true, it ought to have been possible to obtain some document recording his whereabouts.  None was produced.  As noted earlier, although Mr Laycock asserted Patient 2 misdescribed his car, he did not provide the photographs mentioned in the April 2018 Response and nor was he able to give evidence about the car he claimed he owned/drove at that time.
481	Weighing all the available evidence and giving greater weight to that of Patient 2, we were comfortably satisfied that each element of particular (v)(D) is proven.
Allegation 2 – Patient 2 – July to August 2015 Admission – particular (vi)(A) 
The particular
482	The particular says:
(vi)	during [Patient 2’s] admission at the Hospital between 21 July 2015 to August 2015:
(A)	in or around July 2015, Mr Laycock entered [Patient 2’s] room at the Hospital during the night when she was asleep, when she awoke to Mr Laycock digitally penetrating her vagina . . .
Patient 2’s evidence 
483	In her Witness Statement, Patient 2 explained that she was admitted to the Hospital on or about 21 July 2015 (the July to August 2015 Admission).  She was admitted to a shared room in the surgical ward due to an infection in her arm.  She stated that the purpose of that admission was to treat the self-injury she had sustained to her arm.
484	She then stated she was transferred to the Unit on or about 26 July 2015.  She described herself as ‘hesitant’ to be admitted to the Unit and to ‘encounter Mr Laycock’.  She said that, as far as she could recall, she was admitted to a shared room.
485	She confirmed that events described in her Police Statement and AHPRA Statement occurred during that July to August 2015 Admission.  She noted she was discharged on 30 July 2015 and then re-admitted on 12 August 2015.
486	The following description of events comes from Patient 2’s Police Statement:
33.	One night, Darren was working a double shift, I was in a shared room and I thought this would be better for me.  I think the other person was called [name redacted – Patient 4].  But it didn’t turn out that way.  During that day he came in to tell me that [the Partner] was wrong and not to listen to [the Partner].  On the night shift that he was working, I had gone to bed after having my night meds and pain medication which would put me to sleep within half an hour.
34.	I have no idea what time it was but I woke up with my back arched, not knowing what was happening, my body was responding to something but I didn’t know what.  As I woke up more, I could feel something inside me and realised that Darren was standing above me with his hand inside of me.  He was up to his third finger and was moving it in and out of me, it was really hard and it hurt.  He was pushing his fingers right inside me up to his knuckles.  He got harder and faster and more painful and I reached down, grabbed his hand and pulled it out of me.  I was so confused, I asked what he was doing but I don’t think he said anything.  I pulled his hand away and he kept rubbing me on the outside of my vagina really hard, he left friction burns and splits on my skin.  I still have these cuts.
487	Patient 2’s AHPRA Statement said the following as to the injuries mentioned:
I saw a female doctor who regularly came to the hospital and did rounds on the wards.  The doctor examined my injuries.  They told me to take photos and could see injuries externally.  She did not do a major internal examination and said that the injuries were from a forceful impact or forceful entry.  I have the photos.
488	In August 2015, in the context of disclosing Mr Laycock’s alleged conduct to her psychiatrist, this event was described to the Partner.  He said this in his police statement made on 31 August 2015:
21.	When I was in her room she said that Darren had been coming into her room every night while she was staying there, forcing her to do things to him, sometimes he came to her in another ward even when he wasn’t her nurse.
22.	She told me that he hurt her one night when she was sleeping, he had fingers inside her and he rubbed her vagina so hard that she got cuts.
23.	She was a fucking mess when she was telling me this, she was quiet because she was sharing a room.  I was beside myself.
24.	I asked what was happening about it and the hospital was running an investigation about it.  She told me that he had been suspended from work.
25.	She told me that she felt dead, she felt dirty and she was so ashamed.
26.	I asked her why she hadn’t said something and she said that she was afraid, like a child who could not speak.
27.	I told her that the only thing she was responsible for was not speaking out about it sooner.
28.	I do not know all the details about what happened.  She told me that she made a statement but I couldn’t read it, I feel sick thinking about what she was telling me.
489	Although it was put to Patient 2 that Mr Laycock denied the events as described occurred (and she disagreed), Patient 2 was not cross-examined about the injury she says she suffered to her vagina or the photos she said were taken.  The photos were not called for.
Mr Laycock’s evidence
490	In the April 2018 Response, Mr Laycock denied digitally penetrating Patient 2 on or around 27 July 2015.  He repeated that denial in his evidence at the Tribunal saying it did not happen and it was ‘so wrong’.
Findings
491	We have noted Patient 2’s evidence about the timing of her admission in July 2015 and her return to the Unit on 26 July 2015.  As we understood it, that assisted her to place the conduct as having occurred on or around 27 July 2015, that is soon after her return.
492	While we found the description of the alleged injuries surprising, we noted they had been described throughout Patient 2’s Statements since September 2015, as had the reference to her being examined by a doctor.  There was no challenge to that evidence.
493	As we understood it, at the time Patient 2 was in a shared room.  We were not persuaded it was material in this matter.  We understood Patient 2 to have been asleep and for Mr Laycock to have stopped soon after she woke.  Given our assessment of Patient 2 and Mr Laycock’s comparative credit and reliability, we had no reason to reject Patient 2’s evidence and were comfortably satisfied it was to be accepted.
494	Particular (vi)(A) is proven.
Allegation 2 – Patient 2 – August 2015 Admission – particular (vi)(B) 
The particular
495	The particular says:
(vi)	during [Patient 2’s] admission at the Hospital between 21 July 2015 to August 2015:
. . . 
(B)	in or around August 2015, Mr Laycock entered [Patient 2’s] room at the Hospital during the afternoon, where he:
(I)	sat at the end of [Patient 2’s] bed;
(II)	kissed [Patient 2] on the lips;
(III)	lifted [Patient 2’s] top up and touched her breast;
(IV)	placed [Patient 2’s] hand on his crotch;
(V)	asked [Patient 2] to perform oral sex on him; and/or
(VI)	manoeuvred [Patient 2’s] head towards his crotch using his hands, following which she performed oral sex on him . . . 
Patient 2’s evidence 
496	Patient 2 said that, on 12 August 2015, she was re-admitted to the Hospital in the surgical ward for management of a surgical wound, namely a haematoma in her arm.  Approximately two days later, she was re-admitted to the Unit.  She then confirmed that the events as described in the Police Statement at paragraphs 36 to 39 and in her AHPRA Statement at paragraph 18 were correct.
497	The identified paragraphs of the Police Statement (which was made on 5 September 2015) said:
36.	One night, about two weeks ago, probably early August 2015, on an afternoon shift, he came and sat on the end of my bed again, he started kissing me and touching me, he lifted up my top again.  He made me touch his crotch, it was the way it usually happened.  I did keep my hand there as I knew what was going to happen if I pulled away.  So I would submit to him hoping that would be enough because I couldn’t fathom it going any further with another patient beside me.  There was another patient with me that night, I think her name was [name redacted – Patient 4].  This was an evening shift so I didn’t think anything would happen.
37.	But this time he stood up in front of me as I still sat on the bed.  He undid his belt and fly and pulled his penis out.  He told me to suck him but I said no, he asked me to touch it.  I did because he put my hand on him.  I didn’t know what else to do.  He started to try to pull my top up to expose my stomach, I went to pull it down and he said ‘I’m going to make a mess, are you going to clean it up?’  I pulled my top up because I didn’t want him to do anything on my clothes.  I don’t know why I was worried about that.
38.	Then he grabbed my head and he made me suck him.  He held my head there and moved my mouth onto his penis.  I couldn’t breathe and needed to move my head, I grabbed the end of his penis and moved my head back.  He was holding my head and moving himself back and forwards and moaning quietly.  He said quietly, that he was going to ‘cum’.  Then he ejaculated in my mouth as he held my head on him until he completely finished.  Then he pulled his penis out of my mouth, letting my head go so I could move my head backwards.  He did his pants up, my eyes were full of tears, I felt completely empty, I still had his semen in my mouth.  I think he asked if I was ok, kissed me and walked away.
39.	I was crying, I couldn’t believe what had happened.  As soon as was alone, I was sick in the bin near my bed, spitting out as much semen from my mouth as I could; and then again sick in the toilet. I stood in the bathroom and brushed my teeth for over ten minutes.
498	In her AHPRA Statement, Patient 2 explained more about the presence of the other patient.  She said she knew there was a patient in the other half of the room and did not want her know anything was happening.  She described herself as ‘petrified and so I was quiet’.  Patient 2 stated she did not speak to the other patient about the incident and that she only shared the room with her for a couple of days.
499	That other patient (Patient 4) made a statement to Victoria Police.  She described the relevant events as follows:
3.	In August 2015 I was in a shared ward with a patient called [Patient 2].  I was closest to the door and I would stay in my bed and keep my [light] low because it was more relaxing for me.  I think I had just been admitted.  I could hear [Patient 2] come and go from the room.
4.	It was about 10.00pm on a Monday night when I heard Darren come into the room.  Darren is a nurse at the hospital.
5.	Darren was talking to [Patient 2], he said ‘Are you alright, you don’t look well.’
6.	Darren started kissing [Patient 2], he said ‘I have to go home now, are you going to be alright?’ I froze, I didn’t know what to do and I didn’t want them to think that I was awake.
7.	They started kissing again.  It was quite intense kissing, it wasn’t just a peck.  I could hear this, not see it.
8.	Darren said ‘I have to go home.’ And he said something else like ‘I’ll see you again tomorrow’ and then he left.
9.	[Patient 2] must have gone to bed after this because it was just quiet.  I don’t really know what she did because I was shocked and I was still frozen.
10.	After this night, I didn’t know what to do so I didn’t say anything to anyone.
500	As set out earlier, in cross-examination, it was put to Patient 2 that Mr Laycock denied the kinds of sexual activity she had described and she had disagreed with those denials.  
501	Patient 2 was not cross-examined about how the sexual activity in her shared room could have occurred without the other patient hearing and in particular the fact the other patient referred only to ‘intense kissing’ and she alleged oral sex had taken place.
502	As stated earlier, we were unable to hear evidence about these events from Patient 4 as she is deceased.  
Mr Laycock’s evidence 
503	In the April 2018 Response, Mr Laycock denied kissing Patient 2 or having any physical contact with her.  He noted there was a witness who was said to have heard kissing only but not seeing anything.  He then said that particular patient (referred to by us as Patient 4) was admitted to the Hospital in August 2015 and had admitted to conversing with both Patients 1 and 2 about Mr Laycock’s conduct.  
504	As set out earlier, we have given no weight to the suggested collusion between Patients 1 and 2.
505	In his evidence-in-chief, Mr Laycock was taken to the detail of this particular.  He said that definitely did not happen.
Findings
506	In addition to Mr Laycock’s denials and the contentions about Patient 2’s reliability as discussed earlier, submissions were made about the alleged sexual activity in a shared Hospital room, including oral sex in August 2015.  The submissions noted that the patient in the adjacent bed said in her statement that she heard kissing and a conversation where Mr Laycock said Patient 2 did not look well and said he had to go home and would see her tomorrow.  On that evidence, there was said to be corroboration of kissing only.
507	The submissions noted that, as Patient 4 was in a bed very close to that of Patient 2, she would have been in easy hearing distance.  They said that, at no time did she describe hearing either party removing their clothes, repositioning their bodies, or moving upon the bed or within the room.  Further, she did not hear Mr Laycock ask Patient 2 to perform oral sex.  As mentioned above, the submissions suggested that, one would have expected Patient 4 to hear those sounds had there been touching of Patient 2’s breast, touching of Mr Laycock’s crotch or oral sex.  The submission was that there was insufficient evidence of the extensive contact particularised.
508	The Board referred to the criticisms of Patient 2’s evidence regarding the alleged sexual activity in the shared room and Patient 4’s evidence she heard discussion and kissing only.  It contended those matters had not been put to Patient 2.  It contended it would be an error for the Tribunal to infer from those matters that the events as described did not occur.  
509	On the question of timing, we noted that in her statement, Patient 4 placed the time when she heard Mr Laycock and Patient 2 talking and kissing in the evening at around 10pm on a Monday in August (meaning on either 9 or 17 August 2015).  Patient 2’s evidence was that the event happened about two weeks before, ‘probably early August’.  Patient 2 signed her Police Statement on 5 September 2015 but it appears that the statement was taken on 27 August 2015.  We proceed on the basis that the alleged event occurred with Patient 4 in the room and that it occurred in the evening in around mid-August 2015, most likely on 17 August 2015.
510	We accept that there is a question about the likelihood of all of the sexual activity described occurring without being overheard by another person in the room, notwithstanding Patient 2 saying in her AHPRA Statement she was aware Patient 4 was in the room, she did not want Patient 4 to know what was happening, was petrified and so she was very quiet.  
511	We start with items (I) to (II) of the particular.  It appears to be conceded that the alleged conduct of sitting on the bed and kissing Patient 2 could be found to have occurred on the basis of Patient 4’s statement.  We find those particulars proven.
512	Given the evidence that the two beds were separated by a low solid wall and a curtain, and on Patient 4’s statement Mr Laycock was speaking to Patient 2, it is quite possible that he lifted Patient 2’s top and touched her breast and placed her hand on his crotch without Patient 4 hearing or otherwise knowing (items (III) and (IV)).
513	That leaves the alleged oral sex.  Patient 4 referred to ‘intense kissing’.  Without evidence from her, we cannot know if that could have been noise consistent with oral sex.
514	The difference in the descriptions was not put to Patient 2.  As a result, she was not able to explain or comment on matters such as how loud the talking  or sex was (or was not) and how she managed to spit into the rubbish bin in the room, apparently without Patient 4 hearing.  While Mr Laycock carried no burden of proof, the failure to question Patient 2 about those matters (or the other sexual contact described) meant that we had unclear and untested evidence from Patient 4, Mr Laycock’s denials and Patient 2’s detailed, repeated and consistent account to consider.
515	As we have concluded that Patient 2’s evidence is to be preferred over that of Mr Laycock, we are comfortably satisfied that particulars (vi)(B)(V) and (VI) are also proven.  
Factual conclusions on the Allegations
516	The Board relied on extracts from two Codes of Professional Conduct as to the expectations of nurses and the standards of behaviour expected in their interactions with patients.  Those extracts are set out in the particulars of Allegations 1 and 2 in Attachment A.  Amongst other things, they refer to the inherent power imbalance between nurse and patient and the inappropriateness of personal relationships.
517	It is readily apparent that engaging in non-clinical communications with patients is inappropriate.  The intimate and sexual behaviour we have found occurred between Mr Laycock and the two Patients was entirely inappropriate and inconsistent with the relevant standards. 
518	As set out earlier, the Allegation in respect of each Patient was that Mr Laycock failed to maintain the boundaries that should, and ordinarily do, delineate the relationship between a nurse and his patient and/or former patient, being a person who is or has been previously under his care.  Given the findings of fact made above as to the particulars of the two Allegations, we are comfortably satisfied that that the factual matters in Allegations 1 and 2 are proven.
Next steps
519	We have made orders for the parties to serve and file their submissions on whether the proven conduct amounts to professional misconduct or unprofessional conduct under the relevant definitions in the National Law and under section 196(1)(b).  The parties have also been asked to make submissions about what determinations ought to be imposed under section 196(2) of the National Law.  Once those submissions have been received, there will be a further hearing. 

A Dea
Senior Member and Presiding Member	M Archibald PSM 
Health Practitioner Member	P Barry 
Health Practitioner Member	

Attachment A
The Allegations 
Allegation 1 – Patient 1 
That Mr Laycock engaged in:
(a)	professional misconduct within the meaning of paragraph (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,
in that, between approximately April and August 2015, in relation to his current and/or former patient, [Patient 1], Mr Laycock failed to maintain the boundaries that should, and ordinarily do, delineate the relationship between a nurse and his patient and/or former patient, being a person who is or has been previously under his care.
PARTICULARS
The particulars include, but are not limited to:
(i)	*at all material times, Mr Laycock was an Enrolled Nurse;
(ii)	*at all material times, Mr Laycock was employed as an Enrolled Nurse at [the Hospital];
(iii)	*[Patient 1] was an inpatient at the Hospital between on or about:
(A)	November 2014 and on or about December 2014 (First Admission); 
(B)	22 April 2015 and 15 May 2015 (Second Admission); and
(C)	11 August 2015 and 28 August 2015 (Third Admission);
(iv)	*Mr Laycock first provided clinical care to [Patient 1] during the First Admission;
(v)	during the Second Admission, Mr Laycock:
(A)	*provided his personal mobile phone number to [Patient 1] without clinical justification;
(B)	*engaged in telephone conversations and exchanged text messages with [Patient 1] unrelated to her clinical care;
(C)	on a date in or around May 2015, entered [Patient 1’s] room at the Hospital at night, where he:
(I)	sat at the end of [Patient 1’s] bed;
(II)	as he stood up to leave, gave [Patient 1] a hug; and/or
(III)	kissed [Patient 1] on the lips and subsequently immediately left the room; and
(D)	on or about 13 May 2015, entered [Patient 1’s] room at the Hospital at night whilst she was sleeping, where he:
(I)	sat at the end of [Patient 1’s] bed, causing her to awake to his presence;
(II)	subsequently placed his hands under [Patient 1’s] pyjama top and touched her breasts;
(III)	said words to the effect that he was in love with [Patient 1];
(IV)	digitally penetrated [Patient 1’s] vagina; and/or
(V)	placed his penis inside [Patient 1’s] mouth;
(vi)	following the Second Admission:
(A)	*Mr Laycock and [Patient 1] engaged in telephone conversations and exchanged text messages unrelated to her clinical care;
(B)	in or around early June 2015 on a date when [Patient 1] attended an appointment at the Hospital as an outpatient, Mr Laycock:
(I)	arranged to meet with [Patient 1];
(II)	sat with [Patient 1] in her car on [a nearby street – referred to in these Reasons as ‘Street A’], adjacent to the Hospital, where he:
(1)	kissed [Patient 1] on the lips; and/or
(2)	asked [Patient 1] to perform oral sex on him, with which she complied; and
(C)	on or about 4 July 2015, [Patient 1] attended Mr Laycock’s residence upon his request, where Mr Laycock and [Patient 1] engaged in sexual activity;
(vii) 	during the Third Admission:
(A)	*Mr Laycock and [Patient 1] engaged in telephone conversations and exchanged text messages unrelated to her clinical care;
(B)	on or about the morning of 13 August 2015, Mr Laycock entered [Patient 1’s] room at the Hospital and kissed [Patient 1] on the lips;
(C)	on or about the afternoon of 13 August 2015, Mr Laycock:
(I)	asked [Patient 1] to sign herself out of the Hospital for the purpose of meeting with him;
(II)	arranged to meet with [Patient 1] on [Street A] in his car;
(III)	met with [Patient 1] in his car;
(IV)	told [Patient 1] words to the effect that he loved her and he wanted to leave his wife; and/or
(V)	asked [Patient 1] to perform oral sex on him, with which she complied.
(viii)	The Code of Professional Conduct for Nurses in Australia (effective from 7 May 2013 to 28 February 2018) (Code of Professional Conduct) provides that:
(A)	Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care;
. . . 
(B)	Nurses recognise that an inherent power imbalance exists within the relationship between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation.
. . . 
(C)	Nurses actively preserve the dignity of people through practised kindness and respect for the vulnerability of and powerlessness of people in their care.
. . . .
(D)	Nurses recognise that this vulnerability creates a power differential in the relationship between nurses and persons in their care that must be recognised and managed.
. . . 
(E)	Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for.
. . . 
(F)	Sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances.
(Conduct Statement 8)
(G)	Nurses maintain and build on the community’s trust and confidence in the nursing profession (Conduct Statement 9)
(ix)	A Nurse’s Guide to Professional Boundaries (effective from 13 June 2013 to 28 February 2018) (Guide to Professional Boundaries) provides that:
(A)	sexual misconduct by a nurse is an extremely serious violation of the nurse’s professional responsibility to the person in their care. Even if the person consents, or the person initiates the sexual conduct, it is still the nurse’s responsibility to maintain the professional boundary in the relationship;
(B)	care is optimised when nurses and persons receiving care do not engage in dual relationships, for example where the nurse as a personal or business relationship, as well as a professional one with that person;
(C)	nurses establish and maintain the boundaries in their professional relationships with persons receiving care; and
(D)	nurses examine any boundary crossing, and are aware of the potential implications, avoiding repeated crossings.

Allegation 2 – Patient 2 
That Mr Laycock engaged in:
(a)	professional misconduct within the meaning of paragraph (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law;
and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,
in that, between approximately March and August 2015, in relation to his current and/or former patient, [Patient 2], Mr Laycock failed to maintain the boundaries that should, and ordinarily do, delineate the relationship between a nurse and his patient and/or former patient, being a person who is or has been previously under his care.
PARTICULARS
The particulars include, but are not limited to:
(i)	*at all material times, Mr Laycock was an Enrolled Nurse;
(ii)	*at all material times, Mr Laycock was employed as an Enrolled Nurse at the Hospital;
(iii)	[Patient 2] was an inpatient at the Hospital at various times between 2012 and 2015;
(iv)	*At various times during the course of her inpatient admissions, Mr Laycock provided clinical care to [Patient 2];
(v)	during [Patient 2’s] admission at the Hospital between 4 March 2015 and 28 March 2015, Mr Laycock:
(A)	provided his personal mobile phone number to [Patient 2] without clinical justification;
(B)	engaged in telephone conversations and exchanged text messages with [Patient 2] unrelated to her clinical care;
(C)	on a number of occasions in March 2015, entered [Patient 2’s] room at the Hospital, where he:
(I)	sat beside [Patient 2] in her bed;
(II)	hugged [Patient 2]; 
(III)	kissed [Patient 2];
(IV)	said words to the effect that he loved [Patient 2];
(V)	placed his hand under [Patient 2’s] clothes and touched her breast; and/or
(VI)	placed [Patient 2’s] hand on his crotch and said words to the effect see what you do to me;
(D)	on or about 23 March 2015, [Patient 2] met Mr Laycock outside [a pharmacy], where Mr Laycock:
(I)	drove [Patient 2] in his car to a nearby park where they sat on a park bench;
(II)	kissed [Patient 2] on the lips and breast and placed her hand on his crotch;
(III)	led [Patient 2] to a public toilet which he and [Patient 2] both entered;
(IV)	attempted to perform oral sex on [Patient 2] in circumstances where she said words to the effect that she did not want to;
(V)	asked [Patient 2] to perform oral sex on him, which [Patient 2] refused; and/or
(VI)	attempted to engage in sexual intercourse with [Patient 2] in circumstances where she said words to the effect that she did not want to; and
(vi)	during [Patient 2’s] admission at the Hospital between 21 July 2015 to August 2015:
(A)	in or around July 2015, Mr Laycock entered [Patient 2’s] room at the Hospital during the night when she was asleep, when she awoke to Mr Laycock digitally penetrating her vagina;
(B)	in or around August 2015, Mr Laycock entered [Patient 2’s] room at the Hospital during the afternoon, where he:
(I)	sat at the end of [Patient 2’s] bed;
(II)	kissed [Patient 2] on the lips;
(III)	lifted [Patient 2’s] top up and touched her breast;
(IV)	placed [Patient 2’s] hand on his crotch;
(V)	asked [Patient 2] to perform oral sex on him; and/or
(VI)	manoeuvred [Patient 2’s] head towards his crotch using his hands, following which she performed oral sex on him.
(vii)	The Code of Professional Conduct provides that:
(A)	relationship between nurses and people receiving care;
. . . 
(B)	Nurses recognise that an inherent power imbalance exists within the relationship between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation.
. . . 
(C)	Nurses actively preserve the dignity of people through practised kindness and respect for the vulnerability of and powerlessness of people in their care.
. . . 
(D)	Nurses recognise that this vulnerability creates a power differential in the relationship between nurses and persons in their care that must be recognised and managed.
. . . 
(E)	Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for.
. . . 
(F)	Sexual relationships between nurses and persons with whom they have previously entered into a professional relationship are inappropriate in most circumstances.
(Conduct Statement 8)
(G)	Nurses maintain and build on the community’s trust and confidence in the nursing profession (Conduct Statement 9)
(viii)	The Guide to Professional Boundaries [provides] that:
(A)	sexual misconduct by a nurse is an extremely serious violation of the nurse’s professional responsibility to the person in their care. Even if the person consents, or the person initiates the sexual conduct, it is still the nurse’s responsibility to maintain the professional boundary in the relationship;
(B)	care is optimised when nurses and persons receiving care do not engage in dual relationships, for example where the nurse as a personal or business relationship, as well as a professional one with that person;
(C)	nurses establish and maintain the boundaries in their professional relationships with persons receiving care; and
(D)	nurses examine any boundary crossing, and are aware of the potential implications, avoiding repeated crossings.