High Court clears nurse over affair

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A nurse who admitted having an affair with the husband of a lung cancer patient has been cleared of professional misconduct after an appeal.

Nurse O was previously found guilty by the Health Practitioners Disciplinary Tribunal, suspended for six months, fined $1500 and ordered to do a course on ethics.

But in his High Court appeal verdict released yesterday, Justice Christopher Allan overturned the tribunal's rulings.

He criticised the North Island regional nurse's behaviour, but said it did not warrant discipline.

"Moral wrongfulness of itself is not the test for professional misconduct," he wrote.

The said the case was nothing like another in which the tribunal imposed a sentence of suspension from practice and ordered supervision for a nurse who had an affair with the husband of a severely disabled stroke patient.

The judge said the stroke patient's husband was "significantly more vulnerable" than the husband of the cancer patient, and that nurse was involved in "ongoing management of a patient who needed round-the-clock nursing".

In the cancer case, the nurse, whose main role was to organise resources, met the patient, Ms P, only once, at a cafe where she also met the husband.

"In this case it is important to bear in mind that Ms P and Mr R had been living apart prior to Ms P's illness, and there appeared to be relationship problems."

In evidence, Ms O said Mr R told her at their first private meeting that they were effectively separated.

"Most importantly, it was Mr R who sought out Ms O and initiated their first private meeting. He also initiated contact on the day the sexual relationship commenced."

The judge said the sexual relationship did not start until at least several weeks after the cafe meeting.

The relationship was at one point marked by what the tribunal had called Mr R's "threatening and violent" behaviour towards the nurse. The affair continued until mid-2009, some months after the husband had told his wife about it.

Nurse O's lawyer, Harry Waalkens, QC, argued professional standards must be established before someone could be found to have breached them, and there was no guidance on relationships with a patient's spouse in the nurses' Code of Ethics or the profession's Code of Conduct.