Marina Leikina, Associate, Gordon Legal
Nurses and midwives would be aware that as registered health practitioners their conduct and performance at work is subject to regulation by the Nursing and Midwifery Board of Australia (NMBA).
But ethical standards that health practitioners are expected to meet extend beyond the workplace walls. The codes of conduct for nurses and midwives address appropriate professional boundaries between nurses and midwives, and their patients. The Code of Conduct for Nurses requires that nurses ‘avoid sexual relationships with persons with whom they have currently or had previously entered into a professional relationship.’ The code states that “these relationships are inappropriate in most circumstances and could be considered unprofessional conduct or professional misconduct”.
The code also requires nurses to avoid inappropriate personal relationships where ‘over-involvement has occurred’. Midwives are subject to the same obligations.
Nurses or midwives who engage in sexual relationships with a patient are likely to come under very close scrutiny by the NMBA and in most cases the matter will be referred by the board to a professional performance and standards panel or to the Victorian Civil and Administrative Tribunal (VCAT) for a finding of professional misconduct and sanction. Once referred to VCAT, the proceedings can be (and often are) reported in the media. The findings made by VCAT are public and published online, and usually include the name of the practitioner.
A relationship does not have to be sexual in order to constitute professional misconduct or unprofessional conduct. Relationships where there is overinvolvement in the personal affairs of the patient, exchange of gifts, non-work-related outings, telephone calls, emails or messages are all likely to breach appropriate professional boundaries.
Nurses and midwives should keep in mind that records of your communications may become available to the NMBA during an investigation. These records may ultimately be presented as evidence to VCAT in a public hearing.
The fact that the patient has ‘consented’ to a sexual or other relationship does not absolve the practitioner of responsibility. The patient’s behaviour is relevant but does not change the fact that it is the practitioner’s responsibility to maintain appropriate professional boundaries.
The code recognises that there is an inherent power imbalance that exists between nurses/midwives and patients which may affect the person’s ability to give free consent to a sexual relationship, impact on their autonomy and affect the quality of their decision-making. Patients are vulnerable while in care and a sexual relationship between a nurse or midwife and patient exploits this vulnerability.
There are some circumstances in which a patient’s condition may increase their vulnerability and therefore the seriousness with which the practitioner’s conduct is viewed. Patients with a psychiatric or psychological condition, or cognitive impairment, are recognised as particularly vulnerable. A nurse who has a sexual relationship with a mental health consumer will almost certainly be referred by the NMBA to VCAT for a finding of professional misconduct. Depending on the circumstances the practitioner may be reprimanded, have conditions imposed on their registration, be suspended from practice for a period of time or have their registration cancelled.
It is a significant consideration whether the practitioner is providing nursing or midwifery care to the patient at the start of or during the relationship. However, a sexual relationship may constitute professional misconduct even where there is no nursing/midwifery care relationship, for example if the patient is receiving ongoing treatment at the same facility.
If a nurse/midwife is concerned about whether professional boundaries with a patient have become compromised or whether an inappropriate relationship has developed, they should take the following steps as soon as possible:
- Seek professional assistance and advice from the ANMF (Vic Branch).
- If appropriate, and in consultation with the workplace, cease the nursing/midwifery relationship.
- Consider undertaking education or training in relation to maintaining professional boundaries.
ANMF members* are entitled to a free standard will and discounted rates for personal legal services through Gordon Legal.
