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Home / New Zealand

Nurse who performed indecent act on patient won't be struck off

Melissa Nightingale
By Melissa Nightingale
Senior Reporter, NZ Herald - Wellington·NZ Herald·
27 Aug, 2020 01:06 AM4 mins to read

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The patient was in hospital detoxing from drugs and alcohol at the time of the incident. Photo / 123rf

The patient was in hospital detoxing from drugs and alcohol at the time of the incident. Photo / 123rf

A nurse who performed an indecent act on a hospital patient has narrowly avoided being struck off and publicly named.

The 33-year-old lower North Island man will instead be suspended for six months and be made to undergo a professional boundaries and ethics course, as well as mentoring, before he can return to nursing.

The patient was in hospital to detox from drugs and alcohol and was going through varying states of withdrawal during her stay in 2016.

She claimed that the nurse hugged her, touched her breast and genitals, then performed an indecent act on her.

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But the Health Practitioners Disciplinary Tribunal earlier ruled that the patient initiated the hug and put the nurse's hands on her body.

He admitted the indecent act, telling the Tribunal he felt he couldn't turn down the sexual contact because she might try to accuse him of sexual assault. He said he had no other choice but to commit the act and had no way to "escape".

The morning after, the patient woke up in a state of disorientation and said she had been sexually assaulted.

The nurse was charged with indecent assault and sexual violation and was put on trial before a jury, but the charges were dismissed during the trial.

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The judge found guilty verdicts based on whether or not the woman had the ability to consent were unsafe. The decision acknowledged sexual activity had taken place, and no finding was made on consent.

The matter came before the Health Practitioners Disciplinary Tribunal this week, which ruled the nurse had committed professional misconduct, regardless of whether the woman was capable of consenting. They also rejected a charge that the nurse had violated the woman.

Although the prosecution argued the man should have his nursing registration cancelled, the tribunal instead settled on a period of suspension.

It imposed the maximum period of three years' suspension, but discounted it by two and a half years to account for the nearly four years the nurse had not worked in his profession since the incident.

"While we consider that there is a need to punish and reflect and mark the condemnation of the tribunal in terms of the practitioner's conduct, we do consider that rehabilitation of [the nurse] is a guiding factor in the orders that we intend to make," said chairwoman Alison Douglass.

The nurse's suspension will begin from the time the tribunal's written decision is released, which is expected to be in two months.

He must also undergo two years of supervision and mentoring with a senior male nurse, and advise any employers of the Tribunal's finding for the next three years.

He can only work for an employer that has been approved by the Nursing Council of New Zealand for the next three years, and will have a censure on his record.

The Tribunal also ordered the nurse to pay 25 per cent of the costs for the investigation and hearing, which totalled more than $100,000.

The Tribunal also agreed to grant the nurse's application for permanent name suppression, saying the need for his rehabilitation outweighed the public interest in naming him.

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They found naming him would affect his current employer, his wife and other relatives, and would compromise his rehabilitation.

Douglass told the nurse he had avoided cancellation and publication of his name "by a very narrow margin".

"I want you to understand that you have just one opportunity here to get this right. Don't let yourself or your profession down."

The nurse gave the tribunal a "big thank you" for his second chance and said he would not "do any harm to the public", and that he would protect his future patients "from any harm".

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