Lawyer warns providers of the need for policy outlining parameters of professional relationship with clients.

A registered nurse in Queensland has been found guilty of professional misconduct following her relationship with an elderly man.

Last November, the Supreme Court of Queensland Court of Appeal overturned the decision of a District Court regarding a Nursing Council tribunal finding a registered nurse guilty of professional misconduct.

It was alleged she had gone beyond her professional duty to the deceased. Following her work with him in his home, as an employee of Blue Care, she entered the role of an unpaid carer and friend, while failing to clarify that her professional relationship had come to an end.

This included regularly visiting the deceased, in a hospital, hospice, nursing home and hostel, accepting the deceased’s enduring power of attorney on both financial and health matters, failing to distance herself from the deceased when he was writing his will, despite knowing she may gain under it, and failing to consult the deceased’s family.

The Nursing Council found that Fletcher had abused her position, and the deceased had been unduly influenced by her. This was despite the fact not all the particulars had been proved.

The matter was appealed to the District Court, where she was successful and orders against her were dismissed. The District Court held that an abuse of power required an intention to take advantage of a position of power, of which Fletcher did not possess.

These findings were appealed by the Nursing Council.

The Supreme Court of Queensland disagreed with the District Court. It recognised that an abuse of position was not intended to “bring about some identifiable result”. What is relevant is the nature of the conduct, not whether it was intentional. Fletcher’s conduct was found to constitute an abuse of position and consequently the decision of the District Court was overturned.

Julie McStay, a partner with Queensland legal firm Hynes, said the therapeutic nature of aged care creates an environment in which there is a risk that staff will develop a relationship with clients that can breach professional boundaries. Staff must be able to identify professional boundary violations which occur when they place their own needs above the needs of a client.

“The Court of Appeal decision in Fletcher confirms that the Courts have very high expectations when it comes to nursing staff acting within professional boundaries because the courts recognise that care staff are in a unique position to effect the decisions their vulnerable clients may make,” McStay said.

“Prudent approved providers will implement a policy which defines the parameters of a professional relationship and the principles to be applied by all care staff to prevent professional boundary violations,” she said.

Such a policy should state that the approved provider expects all care staff will maintain professional boundaries to a prescribed standard.

Further, all staff should be trained in the policy.

Accepting any gift from a client beyond a small, one off token of appreciation has the potential to compromise the professional relationship between the client and the staff member, she said.

“The policy should clearly set out the parameters of permitted conduct with respect to accepting gifts and that it will never be appropriate to accept a sum of money or a bequest. It should also state that a staff member should never enter a financial relationship with a client.”

Most providers have policies and procedures in place which say professional boundary violations are not permitted. If asked most care workers would report they understand professional boundaries and they must not breach them, she said.

“However, apart from the most obvious cases of professional boundary violations there are many more complex scenarios that might arise. Providers should review their policies to ensure that staff understand what conduct is permitted and what conduct is not,” McStay said.