What happens when a boundary concern is raised with your Council or Board?

When a concern that you breached a boundary with a patient or a colleague reaches your Council or Board, the responsible authority writes to you with the concern, asks for your response by a date, and decides which route under the Health Practitioners Competence Assurance Act 2003 (the HPCA Act) it belongs on. A boundary concern is treated as a conduct matter and can be referred to a Professional Conduct Committee, which can lay a charge before the Health Practitioners Disciplinary Tribunal. Where the concern is of a sexual nature, or the authority believes patients may be at risk, it can place interim conditions on your practice or suspend you. Take advice before you write, stop all contact with the person concerned, keep every message as it is, and show that you understand why the boundary exists.

What a boundary concern is

A professional boundary is the limit that keeps the relationship your role gives you separate from a personal one. It exists because the person on the other side of it trusts you, depends on you or works under you, and you hold the power in that relationship. The responsibility for keeping the boundary is yours, even where the other person wanted the contact. A concern can arise from any of these, with a patient or a colleague:

• Dual relationships. Treating a friend, a relative, a business partner or someone you owe money to; supervising, assessing or managing a colleague with whom you are in a personal, financial or sexual relationship; or becoming friends with a patient while you are caring for them.
• Personal contact. Messages, calls or meetings with a patient or a colleague outside the clinical or working purpose, from a personal phone or account, or at times and places the role does not require.
• Social media. Friend requests, following, private messages or comments with a patient, or with a colleague you supervise, and posts that identify a patient or describe a colleague.
• Gifts, money and favours. Gifts beyond a token, loans, being named in a will, business dealings, or favours that leave a patient or a colleague owing you something.
• Self-disclosure. Telling a patient or a junior colleague about your personal life, problems or feelings in a way that shifts the relationship toward you.
• Sexual conduct. Sexualised comments, touch or examination that was not clinically needed, or a sexual relationship with a patient, or with a colleague you supervise or assess.
• A relationship after care ends. A personal or sexual relationship with a former patient, where the authority will look at the kind of care given, how long ago it ended and how vulnerable the person was.

What your Council or Board measures it against

Every responsible authority's code of conduct or code of ethics covers boundaries, and several publish separate guidance. The Medical Council has a statement on sexual boundaries in the doctor-patient relationship, and the Nursing Council has guidelines on professional boundaries. The Code of Health and Disability Services Consumers' Rights gives every patient the right to be free from sexual, financial or other exploitation. Read the part of your own authority's code that the concern points to before you write, because your response has to answer it. The remediation courses for every Council and Board page lists the profession pages for each authority.

How the process runs, step by step

1. The concern is notified. A patient, their whānau, a colleague, an employer or another practitioner notifies the authority. A complaint from a patient is passed to the Health and Disability Commissioner, as the Act requires, and can be referred back to the authority.
2. The authority writes to you. The letter sets out the concern, the material it holds, and the date your response is due. It can ask for messages, records and rosters.
3. An interim order is considered. Where the authority believes patients may be at risk, it can propose conditions or suspension while the matter is open. You are entitled to be heard first.
4. A Professional Conduct Committee is appointed. The authority can refer a boundary concern to a Committee, which investigates, can interview you and witnesses, and lets you respond before it decides.
5. The Committee decides. It can recommend that the authority take no further action, counsel you, order a competence review or impose conditions, or it can lay a charge before the Tribunal.
6. The Tribunal hears a charge. The Tribunal decides whether the conduct is professional misconduct and, if so, the penalty.

The guides to what happens after a notification to your Council or Board and how a Professional Conduct Committee process runs cover each stage.

How the Tribunal and the authorities treat boundary matters

In published decisions the Health Practitioners Disciplinary Tribunal has cancelled the registration of practitioners who entered a sexual relationship with a patient, and has imposed suspension, conditions, censure and fines where a practitioner sent personal or sexualised messages, formed a dual relationship, accepted money or gifts, or began a relationship with a former patient. The Tribunal can suspend registration for up to three years and can order costs, and its decisions are published.

The Tribunal and the authorities look at the power imbalance, how vulnerable the patient or colleague was, how long the conduct went on, whether it was concealed, and what the practitioner has understood and done since. A practitioner who has stopped the conduct, accepted responsibility and shown insight is in a different position from one who blames the other person. The guide to a Health Practitioners Disciplinary Tribunal hearing describes what the Tribunal weighs, and the guide to interim suspension and conditions on practice covers orders made while the matter is open.

What you can do now

• Get advice before you write. Speak to your indemnity insurer, your professional association or union, or a lawyer: for doctors the Medical Protection Society, for nurses NZNO, for midwives NZCOM. Do this before you put anything in writing to the authority or an employer.
• Keep the evidence as it is. Messages, emails, social media, records and rosters. Give copies to your adviser.
• End the dual relationship. Arrange through your employer or practice for the patient's care to pass to a colleague, or for someone else to supervise the colleague concerned, and record when and how it was done.
• Put safeguards in place. A chaperone for the kind of consultation concerned, a work phone only, and supervision with a named colleague. Steps already taken give the authority a reason to choose conditions over suspension.

How to show insight in a boundary matter

Insight in a boundary matter means showing that you understand why the boundary exists, not only that you regret the consequences. Your response and reflection should say what happened, without minimising it; why it breached the boundary, in terms of trust and power rather than rules; the point at which you should have recognised it; the effect on the patient or colleague; and what you now do differently. Do not argue that the other person consented, started the contact or was an adult who chose freely: the authority places the responsibility on you. The guides to showing insight and building a remediation plan and how to write a response to a Council or Board notification give the structure. If the authority orders a review of your practice, the guide to what happens in a competence review explains it.

Where remediation fits

Courses completed before your response goes, with dated certificates attached, show that you have done work on the boundary in question. The Professional Boundaries Course covers where the boundary lies and the early signs that a boundary is being breached. Ethical Boundaries with Patients and Colleagues covers dual relationships with a patient or a colleague and the power imbalance in each. Social Media Professionalism and Boundaries answers a concern that began online, and Insight for Fitness to Practise covers the difference between regret and insight.

Each course is NZ$200, takes 2 CPD hours, is self-paced with immediate access, and ends with a dated certificate issued by Healthcare Ethics Courses that you can submit to your Council or Board or put in your remediation plan. The Council and Board investigation process explained shows where each course sits in the stages.

Sources and further reading

• Health Practitioners Competence Assurance Act 2003: section 69 on interim orders and Part 4 on Professional Conduct Committees and the Tribunal.
• Health Practitioners Disciplinary Tribunal: published decisions on boundary matters, with the penalties imposed.
• Health and Disability Commissioner: the Code of Health and Disability Services Consumers' Rights.

Frequently asked questions

What counts as a boundary concern?

Any conduct that moves a professional relationship with a patient or a colleague toward a personal one: dual relationships, personal messages or meetings, contact on social media, gifts or money, self-disclosure, sexualised comments or touch, or a relationship with a former patient. The responsibility for the boundary sits with the practitioner, because the practitioner holds the power in the relationship. The authority measures it against its own code of conduct or code of ethics.

Can I be suspended while a boundary concern is investigated?

Yes. While a Professional Conduct Committee investigation is open, section 69 of the HPCA Act lets the authority suspend your practising certificate or impose conditions, such as a chaperone, if it is satisfied that is needed to protect the public. You are entitled to be heard first. Steps you have already taken, such as ending contact and arranging a chaperone and supervision, give it a reason to choose conditions over suspension.

Does it matter that the other person agreed to the relationship?

The authority and the Tribunal place the responsibility for the boundary on the practitioner, because the patient or colleague trusted you, depended on you or worked under you. Arguing that the other person agreed, or started the contact, reads as a lack of insight. Your response should say what happened, why it breached the boundary, when you should have recognised it and what you now do differently. Take advice on the wording first.

What penalties has the Tribunal imposed in boundary cases?

In published decisions the Health Practitioners Disciplinary Tribunal has cancelled registration where a practitioner entered a sexual relationship with a patient. For other boundary breaches it has imposed suspension, conditions such as a chaperone or supervision, censure, fines and costs. It weighs the power imbalance, how vulnerable the person was, how long the conduct went on, whether it was concealed, and the insight and remediation the practitioner has shown.

Who should I speak to before I respond?

Your indemnity insurer, your professional association or union, or a lawyer, before you put anything in writing to the authority or to an employer. For doctors that is the Medical Protection Society, for nurses NZNO and for midwives NZCOM. Tell them the date in the letter and what the authority has asked for, and give them copies of the messages. Healthcare Ethics New Zealand offers remediation courses and does not give legal advice.