NURSING AND MIDWIFERY BOARD OF AUSTRALIA and BASTIN - [2025] WASAT 125

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT:   HEALTH PRACTITIONER REGULATION NATIONAL LAW (WESTERN AUSTRALIA)
CITATION:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA and BASTIN [2025] WASAT 125
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
MR R POVEY, MEMBER
DR B JONES, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   5 NOVEMBER 2025
FILE NO/S:   VR 30 of 2024
BETWEEN:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
MICHELLE JEANNE ROSEMARY BASTIN
Respondent

Catchwords:

Vocational regulation - Health practitioner - Registered nurse - Disciplinary proceedings - Whether respondent practitioner engaged in professional misconduct - Practitioner found to have stolen from clients in their home whilst a carer for their disabled children - Whether referral can proceed in the Tribunal because criminal proceedings dismissed - Respondent not registered at time of conduct - Characterisation of the conduct - Practitioner engaged in professional misconduct - Confidentiality order made to protect identities of clients

Legislation:

Criminal Code, s 378(7)
Health Practitioner Regulation National Law (WA) Act 2010 (WA) (repealed), s 6, s 193(1)(a)(i)
Health Practitioner Regulation National Law (Western Australia), s 3A(1), s 5, s 39, s 41, s 138, s 138(1)(c), s 138(2), s 156, s 193(1)(a), s 194(1)(a), s 196, s 196(1)(a), s 196(1)(b)(i), s 196(1)(b)(ii), s 207, s 244, s 244(d), s 244(f), Pt 8
Health Practitioner Regulation National Law Act 2009 (Qld)
Health Practitioner Regulation National Law Application Act 2024 (WA), s 5(1), s 5(2), s 42(2)
Health Practitioner Regulation National Law Regulation (Western Australia), s 4
State Administrative Tribunal Act 2004 (WA), s 32(1), s 32(4), s 32(7)(a), s 46(2), s 60(2), s 62(3)

Result:

Practitioner found to have engaged in professional misconduct

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Perth Legal Pty Ltd
Respondent	:	N/A

Case(s) referred to in decision(s):

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Health Care Complaints Commission v Black [2014] NSWCATOD 35
Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630
Health Care Complaints Commission v Scheggetman [2023] NSWCATOD 48
Health Ombudsman v Roza [2022] QCAT 420
Legal Profession Complaints Committee and Chang [2019] WASAT 67
Medical Board of Australia and Woollard [2012] WASAT 209
Medical Board of Australia v ZQX [2024] QCAT 532
Nursing and Midwifery Board of Australia and Mehra [2022] VR 99
Nursing and Midwifery Board of Australia v BCD [2024] QCAT 485
Nursing and Midwifery Board of Australia v Sotingco [2018] VCAT 1615
Panegyres v Medical Board of Australia [2020] WASCA 58
Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Nursing and Midwifery Board of Australia (referred to as the Board or the Applicant) alleges that, between 17 December 2018 and 22 October 2019, the Respondent, Ms Bastin, misappropriated (that is, stole) personal items and consumables from the home of Mr A and Mrs B whilst she was engaged as a carer (through an organisation called 'At Home Care') for their two disabled children in their home.
The Board alleges that this conduct breached the applicable Code of Conduct[1] and Code of Ethics[2] and amounts to professional misconduct.
[1] Nursing and Midwifery Board of Australia, Code of Conduct for Nurses (2018) (Code of Conduct).
[2] International Council of Nurses, The ICN Code of Ethics for Nurses (revised 2021) (Code of Ethics).
For the reasons set out below, we are satisfied that the allegation is made out and that Ms Bastin engaged in professional misconduct.

The referral

On 14 March 2024, the Australian Health Practitioner Regulation Agency (AHPRA) referred the matter to this Tribunal in the name of the Board under s 193(1)(a)(i) of the now repealed Health Practitioner Regulation National Law (WA) Act 2010 (WA) (2010 Act).
Subsection 193(1)(a)(i) provided, in part, that a National Board must refer a matter about a registered health practitioner to a responsible tribunal if the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct. This Tribunal is a 'responsible tribunal'.[3]
[3] 2010 Act, s 6.
On 15 May 2024, the 2010 Act was repealed by the Health Practitioner Regulation National Law Application Act 2024 (WA) (WA Application Act).[4]
[4] WA Application Act, s 38.
The WA Application Act further provided that the Health Practitioner Regulation National Law (Western Australia) (National Law) applies as a law of the State as if it were an Act.[5] It is a modified version of the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).[6]
[5] WA Application Act, s 5(2).
[6] WA Application Act, s 5(1).
The new National Law operates as a continuation of the 2010 Act and so proceedings commenced under the 2010 Act continue and must be dealt with under the new National Law as if they arose under the National Law.[7] That is, although these proceedings were commenced under the 2010 Act, they must be dealt with under the National Law.
[7] WA Application Act, s 42(2).
The obligation to refer a matter to this Tribunal if a National Board believes a registered health practitioner has behaved in a way that constitutes professional misconduct, is now contained in s 193(1)(a) of the National Law.
The Board (that is, the Nursing and Midwifery Board of Australia) is the relevant National Board for the nursing profession and is therefore the correct applicant in this matter.[8]
[8] Health Practitioner Regulation National Law Regulation (Western Australia), s 4.

The proceedings and issues for determination

On 4 February 2025, the President of the Tribunal, Justice Glancy, made orders that various witness statements were, without admission on the part of Ms Bastin, to be received into evidence. These were:
(a)Statement of Ms C (the adult daughter of Mr A and Mrs B), lodged on 27 September 2024 (Photo and Video Statement of Ms C).
(b)Statement of Ms C provided at Tab 6 of the Applicant's Bundle of Documents lodged on 18 September 2024 (Statement of Ms C).
(c)Statement of Mr A provided at Tab 3 of the Applicant's Bundle of Documents lodged on 18 September 2024 (Statement of Mr A).
(d)Statement of Mrs B provided at Tab 5 of the Applicant's Bundle of Documents lodged on 18 September 2024 (Statement of Mrs B).
(e)Statement of Tony Edwardes provided at Tab 11 (commencing on page 130) of the Applicant's Bundle of Documents lodged on 18 September 2024 (Statement of Mr Edwardes). Mr Edwardes is employed by At Home Care as a quality, compliance and risk manager.
In those orders, President Glancy also received the following materials into evidence:
(a)The Applicant's Bundle of Documents lodged on 18 September 2024 (Applicant's Bundle).
(b)The video recordings which are noted at Tab 8 of the Applicant's Bundle of Documents and lodged separately with the Tribunal on 27 September 2024. These were provided to the Board by Ms C.[9] They comprise three tabs:
(i)Tab 8.1 'Video recording of admissions A's house' (20 minutes 15 seconds long) (Recording of Admissions Video);
(ii)Tab 8.2 'Video Recording of Attendance at Practitioner's House Part 1' (6 minutes and 13 seconds long) (Attendance at Premises Video 1); and
(iii)Tab 8.3 'Video Recording of Attendance at Practitioner's House Part 2' (10 minutes and 59 seconds long) (Attendance at Premises Video 2).
(c)Evidentiary Certificate of Kym Ayscough, Chief Executive Officer AHPRA, dated 4 February 2025.
[9] Statement of Ms C lodged on 27 September 2024, at para 4.
President Glancy further ordered that, subject to any further order, Issues 1 to 5 of the Applicant's Statement of Issues[10] were to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
[10] Applicant's Proposed Statement of Issues dated 13 December 2024.
The issues are as follows:
Issue 1:      Can the Board refer a health practitioner under s 193(1)(a) of the National Law to the Tribunal for the same conduct that formed the material facts of a criminal prosecution that was discontinued by the prosecutor because the complainant withdrew the complaint?
Issue 2:      Whether the Respondent held registration under the National Law as:
a.an enrolled nurse from 18 December 2015 to 31 May 2017?
b.a registered nurse (Division 1) from 8 November 2019 to 28 January 2020, on which date the Respondent's registration was suspended by the Applicant as a form of immediate action under s 156 of the National Law?
Issue 3:      Whether the Respondent worked as a carer to assist with looking after Mr A and Mrs B's two children at their house between 17 December 2018 to 22 October 2019?
Issue 4:      Whether the Respondent misappropriated personal items and consumables from Mr A and Mrs B between 17 December 2018 to 22 October 2019?
Issue 5:      Whether the Respondent's conduct found by the Tribunal constitutes professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance as defined in s 5 of the Schedule to the National Law?
Throughout the case management process orders were made providing the parties with the opportunity to file submissions and documents. The Board filed several submissions[11] which we have had regard to.
[11] These included 'Submissions on Conduct and Characterisation' dated 7 March 2024; and 'Applicant's Submissions in Reply on Conduct and Characterisation' dated 30 May 2025.
Ms Bastin generally did not engage with the opportunities given to her to file responsive submissions. She did, however, file several short submissions with respect to issue 1.[12]
[12] Ms Bastin's submissions were filed on 10 April 2024, 19 July 2024, 16 October 2024, 12 November 2024 and 29 November 2024.
Below, we deal with each issue in turn. However, before we do this, it is necessary to outline the statutory regime.

The statutory regime

Subsection 3A(1) of the National Law provides that the paramount consideration of the National Law is the protection of the public and the maintenance of public confidence. It provides:
(1)The main guiding principle of the national registration and accreditation scheme is that the following are paramount -
(a)protection of the public;
(b)public confidence in the safety of services provided by registered health practitioners and students.
Section 196 of the National Law sets out the range of decisions that a responsible tribunal, (that is, this Tribunal) can make after hearing a matter about a registered health practitioner.
The Tribunal may decide that the practitioner has no case to answer, and no further action is to be taken in relation to the matter.[13]
[13] National Law, s 196(1)(a).
On the other hand, the Tribunal may decide that, amongst other things, that the practitioner has behaved in a way that constitutes unsatisfactory professional performance,[14] unprofessional conduct[15] or professional misconduct.[16]
[14] National Law, s 196(1)(b)(i).
[15] National Law, s 196(1)(b)(ii).
[16] National Law, s 196(1)(b)(ii).
Those terms are defined in s 5 of the National Law.
'Unsatisfactory professional performance' is defined in s 5 of the National Law as:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience;
'Unprofessional conduct' is also defined in s 5 of the National Law:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers …
This definition continues to provide a list of examples of the type of conduct that may constitute unprofessional conduct.
Section 5 of the National Law also defines 'professional misconduct' to include:
professional misconduct, of a registered health practitioner, includes -
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession;
The definition of 'professional misconduct' in s 5 of the National Law is not exhaustive. In Panegyres,[17] Vaughan JA (with whom Buss P and Murphy JA agreed) explained:
It follows from the non-exhaustive nature of its definition that the concept of professional misconduct is wider than that which is provided for in pars (a) to (c). 'Professional misconduct' under the National Law can include conduct which does not fall within any of pars (a), (b) or (c) in the definition; for example, conduct which was infamous conduct in any professional respect in the sense of being conduct that would be reasonably regarded as disgraceful or dishonourable by a practitioner's professional brethren of good repute and competency would be professional misconduct. It is, however, unnecessary to explore the limits of the concept of professional misconduct. In its referral the Board put the allegation solely in terms of pars (a) and (b) of the s 5 definition. For that reason it was not open to the Tribunal to find professional misconduct on any wider basis; and the Tribunal did not purport to do so.
[17] Panegyres v Medical Board of Australia [2020] WASCA 58 (Panegyres) at [152].
In summary, conduct that would reasonably be regarded as disgraceful or dishonourable by other members of the profession of good repute and competency would amount to professional misconduct.

Code of Conduct and Code of Ethics

Section 39 of the National Law provides that:
A National Board may develop and approve codes and guidelines -
(a)to provide guidance to the health practitioners it registers; and
(b)about other matters relevant to the exercise of its functions.
Accordingly, the Board developed the Code of Conduct, which amongst other things, sets out professional behaviour and conduct expectations for nurses in Australia.[18]
[18] Code of Conduct, Introduction.
Principle 1.2 of the Code of Conduct is titled, 'Lawful behaviour'. The relevant part of principle 1.2 provides:
Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must
a.respect the nurse-person professional relationship by not taking possessions and/or property that belong to the person and/or their family
…
c.not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration, …
The Board has also adopted the Code of Ethics. The Code of Ethics is a values-based document, whereas the Code of Conduct refers to specific conduct.
The Code of Ethics has principal elements that outline the standards of ethical conduct for nurses. Element 1 of the Code concerns 'Nurses and people'. The relevant part of Element 1 states:[19]
The nurse demonstrates professional values such as respectfulness, responsiveness, compassion, trustworthiness and integrity.
[19] Code of Ethics, Elements of the Code, 1. Nurses and people (Element 1).
The Code of Ethics and the Code of Conduct are admissible as evidence of what constitutes appropriate professional conduct in these proceedings.[20]
[20] National Law, s 41.
We return to this below in our consideration of issue 5, which concerns the characterisation of the conduct.

The onus and standard of proof

The Board has the onus of proving the allegations in their referral application to the civil standard, being the balance of probabilities, and the Briginshaw standard.[21]
[21] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).
The onus of proof in disciplinary matters was explained by the Tribunal in Chang,[22] as follows:
The Committee bears the onus of proof in relation to the allegations of professional misconduct it makes against the practitioner. The civil standard of proof ('on a balance of probabilities') applies together with the Briginshaw approach, which requires clear and cogent evidence to be adduced by the Committee and for the Tribunal to feel an actual persuasion of the occurrence or existence of relevant facts before it can find the practitioner guilty of professional misconduct (or unsatisfactory professional conduct). The Briginshaw approach applies in disciplinary proceedings, because of the nature and seriousness, and potential consequences, of allegations of wrongdoing (or incompetence) made in such proceedings. As Dixon J said in Briginshaw vBriginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 - 362:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[22] Legal Profession Complaints Committee and Chang [2019] WASAT 67 (Chang) at [8]. Footnote omitted.
In being satisfied of the truth of an allegation, we are mindful that we must exercise caution and carefully scrutinise the evidence upon which we base our conclusions. That is particularly so given the serious consequences of a disciplinary finding.[23]
[23] See generally, Briginshaw, at 368, (per Dixon J).
Thus, when we express that we are satisfied, we do so because we feel an actual persuasion of the occurrence of the event or the existence of the fact on the balance of probabilities, having regard to the Briginshaw standard.

The evidence generally

The Board relies upon the material received into evidence by President Glancy on 4 February 2025 in support of its case.
Ms Bastin did not submit any evidence, and she has not sought to contradict or to challenge any of the evidence relied upon by the Board.
The Board submits that we should accept the witness statements and supporting documentary material admitted into evidence as truthful and reliable accounts, and that there are no surrounding facts or documents, nor any other indication that the evidence is unable to be accepted.
We agree with this submission, as we will explain.
The documentary evidence consists of contemporaneous records including the notification and other contemporaneous correspondence such as emails, letters, file notes, as well as court documents and documents created by Western Australia Police (WAPOL). There is nothing on the face of those documents that suggests the contents should not be accepted as an accurate record of events.

The statements of Mr A, Mrs B and Ms C, are corroborated by the documentary evidence and the video recordings. There are no inconsistencies or contradictions in those documents that indicate that they are not truthful or that they are otherwise unreliable.
Furthermore, as the Board points out, Ms Bastin has had the opportunity to file a response to the Board's allegations and to file evidence, but she has not done so, and has not participated in the substantive proceedings, other than to be heard on issue 1.
We also observe that Ms Bastin was also given opportunities to respond to the allegations during the immediate action and investigation processes, and to attend an interview, but she did not do so. Any responses would have been part of the evidence before us in these proceedings.
We have referred to the evidence more specifically below when making our findings on each issue.
Before turning to each issue, we will briefly outline the evidence concerning the criminal prosecution and the AHPRA investigation. This evidence is contained in contemporaneous documents and is not in contention.

The criminal prosecution

On 29 October 2019, Mr A made a complaint to WAPOL that Ms Bastin had, over a six-month period, stolen items of clothing, shoes, cosmetics, toiletries and food items, whilst working as a carer for his two disabled children in their home. The complaint was recorded in a police incident report.[24]
[24] Applicant's Bundle, Tab 11, page 140.
Mr A estimated to police that Ms Bastin had stolen items of clothing and shoes valued at approximately $1,825.[25]
[25] Applicant's Bundle, Tab 11, pages 137 and 139.
Ms Bastin was arrested on 17 January 2020[26] and charged[27] with the offence of 'stealing as a servant' under s 378(7) of the Criminal Code.
[26] Statement of the Senior Constable who arrested Ms Bastin, Applicant's Bundle, Tab 11, pages 125 - 127.
[27] Applicant's Bundle, Tab 11, page 153.
On 8 February 2020, WAPOL signed a prosecution notice commencing a prosecution against Ms Bastin for the offence of 'stealing as a servant' pursuant to s 378(7) of the Criminal Code (Criminal Proceedings).[28]
[28] Applicant's Bundle, Tab 11, page 186.
A criminal trial was scheduled in the Magistrates' Court for 17 January 2022.[29]
[29] Applicant's Bundle, Tab 11, page 92 and 174.
On 6 December 2021, Mr A withdrew the complaint. He stated that he no longer wished police to proceed with the matter because:[30]
I have too much stress going on with other matters. I just recently lost my son and myself and my wife do not want the stress of this matter while we are still grieving. We also got most of the clothes back.
[30] Applicant's Bundle, Tab 11, page 91.
On 13 December 2021, WAPOL decided to discontinue the Criminal Proceedings[31] which were subsequently dismissed on 17 December 2021.[32]
[31] Applicant's Bundle, Tab 11, pages 89 - 90; see also 'Application in or after a prosecution', filed by Ms Bastin on 16 October 2024, where the police requested the matter be discontinued at the request of the complainant.
[32] See record of court proceedings, filed by Ms Bastin on 16 October 2024.

The AHPRA investigation

As well as a complaint being made to police, a notification was also made to AHPRA in November 2019 by an undisclosed person from At Home Care[33] about Ms Bastin stealing from Mr A and Mrs B in their home.[34]
[33] Applicant's Bundle, Tab 13, page 193 and Tab 14, pages 196 - 197.
[34] Applicant's Bundle, Tab 1, pages 4 - 11; see also pages 13 - 14.
On 28 January 2020, the Board took immediate action to suspend Ms Bastin's registration as a Registered Nurse[35] under s 156 of the National Law.[36]
[35] Applicant's Bundle, Tab 16, pages 266 - 271.
[36] National Law, s 156 provides that a National Board may take immediate action to suspend a registered health practitioner if, amongst other things, the National Board reasonably believes that because of the practitioner's conduct they pose a serious risk to persons, and it is necessary to take immediate action to protect public health and safety.
In a letter dated 13 February 2020, AHPRA advised Ms Bastin that the Board had decided to conduct an investigation in which they would consider:[37]
Offence - Dishonesty Offence - Whether during the period you were providing care for a household in your role with 'At Home Care' you stole clothing which resulted in you being charged by the WA Police with one count of stealing as a servant.
[37] Applicant's Bundle, Tab 17, page 278.
On 30 March 2020, AHPRA wrote to Ms Bastin to advise her that they had placed their investigation of her on hold until the Criminal Proceedings were finalised.[38]
[38] Applicant's Bundle, Tab 17, pages 283, 285 and 287.
Ms Bastin emailed the investigators at AHPRA to notify them that the trial had been vacated and 'all evidence against me has been thrown out'. She claimed this was 'due to disclosure issues with the … family's story and evidence handed in against me'.[39]
[39] Applicant's Bundle, Tab 21, page 289.
On 3 May 2022, AHPRA wrote to Ms Bastin to advise the Board would now be investigating her conduct.[40]
[40] Applicant's Bundle, pages 292 - 293.
Notwithstanding this, on 23 May 2022, Ms Bastin emailed AHPRA and stated that, 'I've sent the nursing board all the information they needed to reinstate my account with AHPRA, due to the charges being dropped and the trial vacated by the Joondalup Magistrates Court WA'.[41]
[41] Applicant's Bundle, Tab 23, page 293.
An AHPRA file note of a telephone call with Ms Bastin dated 24 May 2022, and an email from the investigator to Ms Bastin on the same date show that Ms Bastin had not responded to the substantive allegation, and that Ms Bastin was of the view that as the Criminal Proceedings had been dismissed, that the AHPRA investigation would no longer proceed.[42]
[42] Applicant's Bundle, Tab 25, pages 295 - 296.
In an email dated 4 July 2022, Ms Bastin emailed AHPRA, stating that, 'I'm informing you that your investigation into misconduct is heading towards defamation and I'll be requesting more time for legal advice, you can put whatever information you feel you have against me on hold until the 1^st December 2022 and I'll inform you if a civil case will be made against Ahpra'.[43]
[43] Applicant's Bundle, Tab 27, page 298.
On 14 October 2022, AHPRA emailed Ms Bastin stating that the investigation would continue and noted that she had not made any responsive submissions by a deadline (3 May 2022) and an extended deadline (4 July 2022). Ms Bastin was given further time, until 11 November 2022, in which to respond.[44]
[44] Applicant's Bundle, Tab 27, page 299.
On 17 January 2023, AHPRA wrote to Ms Bastin to advise the investigation was continuing and that after a review of the restrictions imposed by way of immediate action, the restrictions were still necessary to protect public health and safety.[45]
[45] Applicant's Bundle, Tab 28, page 302.
On 30 May 2023, AHPRA wrote to Ms Bastin attaching a notice to attend an interview with an investigator.[46] The interview was scheduled for 8 June 2023.[47] Ms Bastin did not attend.[48]
[46] Applicant's Bundle, Tab 29, page 306.
[47] Applicant's Bundle, Tab 29, page 308.
[48] Applicant's Bundle, Tab 31, page 312.
On 28 September 2023, AHPRA wrote to Ms Bastin and stated that the investigation was continuing. They advised that a review of the restrictions imposed by immediate action had taken place on 13 July 2023 and that it was considered that the restrictions were still necessary to protect the public.[49]
[49] Applicant's Bundle, Tab 31, page 314.
On 14 December 2023, AHPRA advised Ms Bastin that the Board had decided to refer the matter to the Tribunal.[50]
[50] Applicant's Bundle, Tab 32, pages 316 - 318.

Issue 1

Can the Board refer a health practitioner under s 193(1)(a) of the National Law to the Tribunal for the same conduct that formed the material facts of a criminal prosecution that was discontinued by the prosecutor because the complainant withdrew the complaint?

As we mentioned above, this issue is the only issue that Ms Bastin has sought to respond to.
For the reasons we set out below, the answer to this issue is 'yes'.

Conduct occurring outside of registration

Before addressing the substantive issue, we observe that at the time of the conduct, Ms Bastin was not registered as a health practitioner under the National Law. We make findings about the dates of her registration below under issue 2.
Section 138 of the National Law provides that proceedings may be taken against a person who is a registered health practitioner in relation to behaviour that occurred during a period where the health practitioner was not registered,[51] unless the conduct constitutes unsatisfactory professional performance or unprofessional conduct.[52]
[51] National Law, s 138(1)(c).
[52] National Law, s 138(2).
At the time of the referral to this Tribunal, and currently, Ms Bastin's registration is suspended. Section 207 of the National Law provides that if a person's registration as a health practitioner is suspended, the person is taken not to be registered, except for the purpose of Pt 8 of the National Law. These proceedings were commenced under Pt 8 of the National Law. Therefore, Ms Bastin is still taken to be registered for the purposes of the National Law.
Therefore, even though Ms Bastin's conduct occurred between two periods of registration, the conduct could be referred to this Tribunal under s 194(1)(a) of the National Law.

Referral of conduct which formed the basis of the Criminal Proceedings

Next, we will analyse Ms Bastin's submissions on the substantive part of this issue. She has filed several written submissions which are somewhat unclear.
In one of those submissions Ms Bastin states the view that because the Criminal Proceedings were discontinued, the evidence in those proceedings was 'thrown out' and that the Board could therefore not refer these proceedings to the Tribunal.[53]
[53] Document titled, 'Written response to the grounds of the application' filed on 12 August 2024.
In another submission Ms Bastin asks the Tribunal to dismiss the Board's referral application, which appears to be based on a misunderstanding of s 46(2) of the SAT Act.[54] That subsection provides that '[t]he Tribunal may make an order dismissing or striking out all, or any part, of a proceeding before it if the applicant withdraws or agrees to the withdrawal of the proceeding or that part of it'. It seems to us that Ms Bastin is of the view that because the Criminal Proceedings were dismissed, that these disciplinary proceedings should also be dismissed. However, s 46(2) provides that if an applicant withdraws a proceeding they have commenced in this Tribunal, then the Tribunal can also make an order dismissing or striking out the proceeding. That is, s 46(2) of the SAT Act does not apply to a proceeding dismissed in another jurisdiction.
[54] Document titled, 'Parties' agreed statement of issues' filed on 29 November 2024.
Ms Bastin's submission continues to state that AHPRA 'has archived an inactive criminal case that was resolved over 4 years ago' and that 'you shouldn't be able to start a Civil matter in the State Administrative Tribunal'. She also refers to the Applicant being changed to the Board, and the allegation being changed from stealing to misconduct. She indicated that the Board should have gathered its own evidence instead of relying on a 'discontinued court case'. She refers to the case being 'brought up a second time'.[55]
[55] Document titled, 'Parties' agreed statement of issues' filed on 29 November 2024.
In another submission, Ms Bastin states that the evidence was 'consented to be thrown out' in the Magistrates Court and that 'Ahpra was involved in the criminal case and that is how they got evidence from the Police and handed it over [to] the Nursing and Midwifery Board of Australia'.[56]
[56] Document titled, 'Respondent's Minute of Proposed orders' filed 19 July 2024.
In the final submission Ms Bastin filed on this topic, she states that '[i]f anyone wanted to start a civil matter against me then they had to gather their own evidence and couldn't use a discontinued criminal case'. She stated that 'there is not much left on file that acknowledges that I'm a thieve [sic], this puts a Question Mark on the applicates [sic] defence that I committed professional misconduct'. She continued to state that the Board's legal representatives 'went against court orders … and kept a criminal investigation on file from 17 December 2020 until currently, the applicate [sic] is being accused of illegally archiving a discontinued court case for financial gain and gave false and misleading information to the State Administrative Tribunal …'.[57]
[57] Document titled, 'Minute of Consent Orders' filed 16 October 2024, original emphasis.
In the Board's submissions, it summarised the above submissions from Ms Bastin as follows:[58]
58… the Practitioner's position is that the Tribunal should dismiss the Referral Application because:
58.1the Board was a party to the Criminal Proceedings.
58.2the Criminal Proceedings were dismissed.
58.3by dismissing the Criminal Proceedings, the Board, as a party to the Criminal Proceedings, agreed not to take any further action in relation to the conduct underlying the Criminal Proceedings.
58.4the Board now relies on the underlying conduct of the Criminal Proceedings in this Referral Application in breach of its agreement to not take any further action in relation to the conduct underlying the Criminal Proceedings.
58.5as the Board has breached its agreement the Tribunal should dismiss these proceedings.
[58] Applicant's Submissions on Conduct and Characterisation dated 7 March 2024, para 58.
This submission also reflects our understanding of Ms Bastin's submissions which we outlined above.
We would also add, that underlying her submissions is the assertion that evidence from Criminal Proceedings that have been discontinued or dismissed cannot be used in evidence in these disciplinary proceedings, and that new evidence would need to be obtained by the Board for the purposes of the disciplinary proceedings.
We observe that, contrary to Ms Bastin's submissions, the criminal prosecution was commenced by WAPOL and the Board was not a party to the Criminal Proceedings.
Nor did the Board make any representation that they would not take further action after the Criminal Proceedings were dismissed. In fact, the correspondence from the Board to Ms Bastin (which we outlined above) makes it clear that the Board put their disciplinary investigation on hold until the Criminal Proceedings were determined. The decision to discontinue the prosecution was made by WAPOL[59] and did not have anything to do with the Board.
[59] Applicant's Bundle, Tab 11, page 89.
In Black,[60] the Civil and Administrative Tribunal of New South Wales considered an application from the respondent health practitioner to permanently stay or dismiss disciplinary proceedings in the Tribunal. The practitioner argued, amongst other things, that the Tribunal could not proceed to hear the complaints against him by virtue of the doctrines of issue estoppel, res judicata and/or autrefois acquit (generally, the Estoppel Submissions) as he had been acquitted of criminal charges.
[60] Health Care Complaints Commission v Black [2014] NSWCATOD 35 (Black).
In Black, the practitioner also submitted that the regulator was a party to the criminal proceedings because the regulator had written to him indicating it was continuing with an investigation before a criminal trial was commenced. However, the Tribunal observed that, '[t]his does not, in any sense, join the HCCC as a party to the criminal proceedings'.[61] That observation applies in Ms Bastin's case.
[61] Black, at [22].
The Tribunal also rejected the Estoppel Submissions and observed that vocational disciplinary proceedings are different to criminal proceedings. In this regard, the Tribunal cited the following passage from the New South Wales Court of Appeal decision in Litchfield:[62]
Even if, in this case, the parties in both proceedings are the same there is still no res judicata estoppel. These are civil proceedings in which the civil onus applies as explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. See Bannister v Walton (1993) 30 NSWLR 699. Even if the factual questions were identical, the difference in the onus of proof prevents the issues being the same. Whether particular conduct has been established beyond reasonable doubt is not the same question as whether that conduct has been established on the balance of probabilities. Thus an acquittal does not bar civil proceedings against the accused arising out of the same facts. See generally Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517. ...
The proposition that an acquittal does not inhibit disciplinary proceedings arising out of the same facts is well established in other common law jurisdictions. See Re Stinson (1911) 22 Ont LR 627; Re A Medical Practitioner (1959) NZLR 784 (CA); Bodna v Deller [1981] VicRp 20; [1981] VR 183 at 196-8; Basser v Medical Board [1981] VicRp 88; [1981] VR 953 at 971-2; and Saeed v Inner London Education Authority [1985] ICR 637. It is also sound in principle because both the onus of proof and the purpose and focus of the proceedings are different.
[62] Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 (Litchfield) cited in Black, at [17].
We respectfully agree with, and adopt, these observations. Criminal Proceedings differ from vocational disciplinary proceedings in a Tribunal. The onus of proof is different, and so is the purpose of those proceedings, with disciplinary proceedings having the protection of the public as their primary focus. Furthermore, there is no estoppel or other legal restriction that applies to prevent us from considering the evidence that was before the Magistrates' Court in the Criminal Proceedings.
In Black, the Tribunal further observed that despite there being a 'high degree of overlap' between the criminal charges and the circumstances of the complaint before the Tribunal:[63]
… it is well settled that the mere fact that proceedings in other courts or tribunals (i.e. other than protective proceedings in this jurisdiction) arose out of the same facts and circumstances does not provide a basis for a permanent stay or a dismissal.
Indeed, it may be quite wrong for the Tribunal not to proceed on these aspects of the Complaints where there may be a significant public interest in considering them. In the context of an application for admission to a profession in the matter of Jackson (formerly Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289 the Court of Appeal clearly stated that the principles apply equally to disciplinary proceedings. At paragraph 34 Giles JA stated:
34Because of the different burdens of proof, an acquittal does not bar civil proceedings arising out of the same facts. For the same reason and because of the different "purpose and focus of the proceedings", an acquittal does not inhibit disciplinary proceedings arising out of the same facts: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 635-6. No res judicata, issue estoppel, doctrine of autrefois acquit or other rule of law prevents examination of the conduct relied on for the crime: Prothonotary of the Supreme Court of New South Wales v Castillo [2001] NSWCA 75 at [32]. The facts can be investigated and determined adversely to the defendant or the person subject to the disciplinary proceedings, and the court or tribunal is not confined to the evidence in the criminal proceedings, let alone to an examination of the "findings" - a difficult task in the case of a jury's verdict.
[63] Black, at [18] - [20].
In Alexander,[64] Pritchard J, made the following observations about the different purposes of criminal and disciplinary proceedings:[65]
… even if the rule against double jeopardy, or principles concerning the prevention of an abuse of process, have a role to play in disciplinary proceedings, the purposes of criminal and disciplinary proceedings are different, so that the application of the restrictive approach to the construction of appeal provisions which is applied in the criminal context is not warranted in respect of appeals in disciplinary matters. The object of criminal proceedings includes the punishment of those who disobey the law. It involves proceedings brought by the State, with its considerable resources, against an accused. In contrast, the object of disciplinary proceedings is, generally speaking, to protect the public by maintaining standards of behaviour of persons permitted to work or carry on business in a particular industry or profession. As is the case here, disciplinary proceedings are frequently brought by vocational regulatory bodies. In those circumstances, some of the concerns which underlie the rule against double jeopardy in the criminal context do not apply, or do not apply with the same force, in the disciplinary context. This is apparent from the fact that it is well established that an acquittal in respect of a criminal charge arising from particular conduct does not preclude disciplinary proceedings being commenced in respect of the same conduct.
[64] Veterinary Surgeons Board of Western Australia v Alexander [2013] WASC 136 (Alexander).
[65] Alexander, at [59]. Footnotes omitted.

Thus, even if criminal proceedings and vocational disciplinary proceedings arise from the same facts and circumstances, as is the case in these proceedings concerning Ms Bastin, there is no bar to a Tribunal hearing and determining disciplinary proceedings when there have been prior criminal proceedings, even if the person was acquitted or if the criminal charges did not proceed or were dismissed.
Provisions of the SAT Act also support a conclusion that the Tribunal can consider evidence from the Criminal Proceedings. The SAT Act provides that the Tribunal is not bound by the rules of evidence, although the Tribunal may have regard to them.[66] Relevantly, the Tribunal is also to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[67] The Tribunal may also inform itself on any matter as it sees fit.[68] If this Tribunal did not inform itself by having regard to the materials from the Criminal Proceedings, it would be failing to consider material that was relevant to the substantial merits of the case. The Tribunal would also be failing to fulfil a statutory obligation to ensure that all relevant material is disclosed to the Tribunal to enable it to determine the relevant facts in issue.[69]
[66] SAT Act, s 32(1), see also Medical Board of Australia and Woollard [2012] WASAT 209 at [88].
[67] SAT Act, s 32(1).
[68] SAT Act, s 32(4).
[69] SAT Act, s 32(7)(a).
In summary, for the reasons we have explained above, we are satisfied, and we find, that this Tribunal can consider evidence from the Criminal Proceedings.
Further, s 193(1)(a) of the National Law mandates that a National Board must refer a matter about a registered health practitioner to a responsible tribunal if the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct. That reasonable belief can be based on a notification or for any other reason.
We are satisfied, and find, that there was sufficient basis for the Board to have formed such a reasonable belief and accordingly, the Board was mandated to make the referral application to this Tribunal, despite the conduct being the same as the conduct that was the subject of the Criminal Proceedings.
We therefore reject Ms Bastin's submission that these proceedings should be dismissed.

Issue 2

Whether the Respondent held registration under the National Law as:

a. an enrolled nurse from 18 December 2015 to 31 May 2017?

b. a registered nurse (Division 1) from 8 November 2019 to 28 January 2020, on which date the Respondent's registration was suspended by the Applicant as a form of immediate action under s 156 of the National Law?

An evidentiary certificate signed by the Chief Executive Officer of AHPRA, Kym Ayscough dated 4 February 2025, states that:
(a)Ms Bastin was registered as an Enrolled Nurse from 18 December 2015 to 31 May 2017;
(b)Ms Bastin has been registered as a Registered Nurse since 8 November 2019; and
(c)her registration was suspended by the Board on 28 January 2020 under s 156 of the National Law.[70]
[70] See also, letter from AHPRA dated 29 January 2020 which states that the Board took immediate action to suspend Ms Bastin's registration on 28 January 2020, Applicant's Bundle, page 266.
The evidentiary certificate is expressed to be made pursuant to s 244 of the National Law. Section 244 provides that such a certificate is prima facie evidence of certain specified matters, including as to when a practitioner was a registered health practitioner,[71] or when their registration was suspended or cancelled.[72] We are therefore satisfied, and find, that the evidentiary certificate is prima facie evidence of the dates that Ms Bastin was registered, and also of the date her registration was suspended.
[71] National Law, s 244(d).
[72] National Law, s 244(f).
Based on this evidence, we are satisfied, and we find, that the answer to questions (a) and (b) in this issue are 'yes'.

Issue 3

Whether the Respondent worked as a carer to assist with looking after Mr A and Mrs B's two children at their house between 17 December 2018 to 22 October 2019?

Based on the evidence we outline below, the answer to this question is also 'yes'.
An employment agreement signed by Ms Bastin on 25 July 2018 and by At Home Care on 26 July 2018 shows that Ms Bastin was employed by At Home Care as a 'Home Care employee' with a start date of 24 July 2018.[73]
[73] Applicant's Bundle, Tab 9, page 68.
The Statement of Mr Edwardes also provides details of Ms Bastin's employment with At Home Care and her work in the home of Mr A and Mrs B. Mr Edwardes states that as part of his role as quality, compliance and risk manager, he is able to produce records relating to staff employment.[74]
[74] Statement of Mr Edwardes, paras 2 and 4.
Mr Edwardes states that Ms Bastin was employed as a Home Care Worker from 24 July 2018 until 24 October 2019.[75]
[75] Statement of Mr Edwardes, paras 7 - 8.
Based on this evidence we are satisfied, and we find, that Ms Bastin was employed as a carer by At Home Care from 24 July 2018 until 24 October 2019.
We also note payslips from At Home Care which show that Ms Bastin was employed as a Home Care Employee during the pay period commencing 24 June 2019 to the pay period ending 27 October 2019.[76] Based on the above evidence, those payslips appear to only relate to part of the period that Ms Bastin was employed by At Home Care.
[76] Applicant's Bundle, Tab 9, pages 74 - 82.
With respect to when Ms Bastin worked as a carer for Mr A and Mrs B's two disabled children in their home, Mr Edwardes stated that from 5 December 2018 until 22 October 2019 Ms Bastin worked with Mr A and Mrs B's family where she provided support to them and their two children at their home address.[77]
[77] Statement of Mr Edwardes, paras 9 - 10.
Mr Edwardes stated that Ms Bastin's duties as a carer were to provide personal, domestic and social support to the family and to assist with their personal needs.[78]
[78] Statement of Mr Edwardes, para 11.
In their respective statements, Mr A and Mrs B say that they hired Ms Bastin through At Home Care to help look after their two disabled children. Both say that she was employed in that role three days a week.[79]
[79] Statement of Mr A, para 5; Statement of Mrs B, paras 4 - 6.
Ms C, who is the daughter of Mr A and Mrs B, stated that in August 2018, her parents employed Ms Bastin, through At Home Care, as a carer to look after her parents' two handicapped children in their home.[80]
[80] Statement of Ms C, Applicant's Bundle, page 121.
In their statements, Mr A, Mrs B and Ms C describe confronting Ms Bastin about her stealing items from Mr A and Mrs B's home (which were primarily items of clothing and shoes belonging to Mrs B) on 22 October 2019.[81] Mrs B also describes attending Ms Bastin's house on 22 October 2019, on Ms Bastin's invitation, to look for the items.[82]
[81] Statement of Mr A, paras 13 - 18; Statement of Mrs B, para 24.
[82] Statement of Mrs B, paras 25 - 27.
In summary, all the statements before us state that Ms Bastin was employed to look after Mr A and Mrs B's two disabled children in their home. We are satisfied of this and so find.
With respect to when Ms Bastin started working as a carer for Mr A and Mrs B's disabled children, Mr A, Mrs B and Ms C say that Ms Bastin commenced working in the family home as a carer for the children in August 2018. However, Mr Edwardes states that she commenced working in this capacity from 5 December 2018.
We are of the view that Mr Edwardes' evidence as to when Ms Bastin started working in the family's home is likely to be more accurate. He stated that in his role he was able to produce records relating to staff employment and we infer that he would have accessed those records when preparing his statement. In addition, an email dated 30 December 2019 from At Home Care in response to further questions from AHPRA, stated that Ms Bastin had worked in the house as a support worker from 17 December 2018.[83] Again, we infer that this information was likely obtained from the employment records of At Home Care and is therefore likely to be more accurate than the family's recollection. We therefore find, and are satisfied, that Ms Bastin was employed as a carer for Mr A and Mrs B's two disabled children in their home from sometime in December, either from 5 December 2018 or 17 December 2018. In any event, she was certainly working for the family in their home from 17 December 2018.
[83] Applicant's Bundle, Tab 2, page 13.
The date Ms Bastin finished working in Mr A and Mrs B's home is clearer. The family retrieved the items of clothing from Ms Bastin's house after confronting her about stealing from them on 22 October 2019. Mr Edwardes also stated Ms Bastin worked for the family until 22 October 2019. Based on that evidence, we are satisfied, and we find, that Ms Bastin was working for the family until 22 October 2019.
In summary, the answer to this question is 'yes'. That is, we find that Ms Bastin worked as a carer in Mr A and Mrs B's home to assist looking after their two disabled children from 17 December 2018 until 22 October 2019.

Issue 4

Whether the Respondent misappropriated personal items and consumables from Mr A and Mrs B between 17 December 2018 to 22 October 2019?

Ms Bastin did not respond to this allegation during the investigation by police, AHPRA and in these proceedings. She did not file any evidence or make any submissions on this issue.
The Board has suggested that it is open to us to draw an adverse inference from the practitioner's silence at the hearing, citing various New South Wales authorities in support of that submission.
We are of the view that we do not need to draw such an inference because there is sufficient evidence before us whereby, we are satisfied that this allegation is made out.
The evidence before us includes the Statement of Mrs B, the Statement of Mr A, the Statement of Ms C and the Photo and Video Statement of Ms C. Those statements are supported by photographs and video footage. Ms Bastin also made a partial admission to At Home Care which was recorded in a contemporaneous document.[84]
[84] At Home Care File Note of telephone conversation with Ms Bastin written on 24 October 2019, Tab 14, Applicant's Bundle, page 221.
It is, however, difficult for us to precisely identify the date that the conduct most likely commenced. It certainly occurred over a period of time. We discuss this below.

Statement of Mrs B

In the Statement of Mrs B, she attests to being 70 years of age. Mrs B stated that sometimes she and her husband would go out and leave Ms Bastin to look after the children. She described Ms Bastin as having 'free reign' of the house when she was working there. Mrs B stated that she trusted Ms Bastin to look after the house and the children when she and her husband went out.
Mrs B stated that about 10 months after Ms Bastin had commenced working for her, she noticed Ms Bastin was wearing a red blouse with flowers on it. Mrs B said she knew it was her blouse because she had it specially made in Melbourne. She asked Ms Bastin where she got the blouse from. Ms Bastin said that she got it from (a clothing store called) 'Millers'.
Mrs B stated that she noticed Ms Bastin was wearing other 'tops' which Mrs B thought belonged to her. She started looking through her clothing and found items missing from her wardrobe. She noticed she was missing a black jacket and several pairs of shoes. Mrs B also realised she was missing a lot of clothing from the wardrobe in her daughter's bedroom.
Further, Mrs B noticed that toiletries, groceries, laundry products and food were missing. She stated that every time Ms Bastin was working something else went missing.
Mrs B stated that her husband installed some cameras to find out what was happening. She said that within a week they had photographs of Ms Bastin taking items from the house and trying on a pair of slacks belonging to Mrs B.
Mrs B said that after about four weeks her husband confronted Ms Bastin about the stealing, and that Ms Bastin admitted she had been stealing from them. She stated that her husband recorded the conversation.
According to Mrs B, on 22 October 2019, Ms Bastin invited her to her house to collect the clothing she had stolen. Mrs B said that she found a large amount of her clothing hanging up in Ms Bastin's wardrobe which she collected and took home. She stated that she collected 33 items of her clothing from Ms Bastin's house.
Mrs B said that Ms Bastin said she had sold the shoes she had stolen from Mrs B, and also some of Mrs B's clothing, on eBay.
Mrs B stated that her two grandsons recorded Mrs B finding the clothing at Ms Bastin's house, and Ms Bastin admitting to the stealing.
She estimated the value of clothing recovered was valued at about $1,800.

Statement of Mr A

Mr A's statement is similar to his wife's statement.
He stated that he was 69 years of age.
Mr A said that about 10 months after Ms Bastin commenced working in his home, he suspected her of stealing. He thought this because he saw Ms Bastin wearing his wife's blue sleeveless top while she was at their house. He said he confronted Ms Bastin about this, but she denied that it belonged to Mrs B. Mr A further said that shortly after, he noticed that several pairs of his wife's shoes had gone missing.
He said that he and Mrs B started keeping an eye out for things going missing. He stated that they started noticing numerous items going missing such as cosmetics, toiletries and food items.
Mr A said that he decided to obtain proof of the stealing and took photos of Ms Bastin stealing. He confronted Ms Bastin and showed her the photos. Ms Bastin admitted to stealing the items and selling some of them on eBay.
Mr A said that he provided a list of the stolen items to police which were valued at $1,800.
Mr B said that on 22 October 2019, Ms Bastin invited Mrs B and their daughter to her house to look for the stolen items. He stated that while they were at Ms Bastin's house his wife found 33 items belonging to her and took them home.
Mr B said that he contacted At Home Care and reported Ms Bastin, and that he also made a report to police.[85]
[85] See also, Western Australia Police Incident Report dated 29 October 2019, Applicant's Bundle, Tab 11, page 140.
We have also viewed photographs taken by Mr A. These show Ms Bastin holding up two tops on hangers and trying on a black jacket.[86]

Statements of Ms C

[86] Applicant's Bundle, Tab 4, pages 20 - 22.

There are two statements from Ms C. These are the Statement of Ms C and the Photo and Video Statement of Ms C. We will discuss the statements in this order.
Ms C stated that she was 49 years of age and is the daughter of Mr A and Mrs B.
She said that in October 2019, her father had installed cameras in his house because Mr A and Mrs B thought that Ms Bastin was stealing clothing and food items. Ms C said that her father told her he had caught Ms Bastin trying on Mrs B's clothing on video footage.
Ms C stated that on 22 October 2019 she went to her parents' house because they had decided to confront Ms Bastin about the stealing. She stated that her two sons were also present.
Ms C said that she, Ms Bastin, Mr A and Mrs B sat at the dining table, and that Mr A showed video footage to Ms Bastin and asked her about the clothes. Ms C stated that Ms Bastin confirmed she had taken clothing from the house which belonged to Mrs B. Ms Bastin said that she had sold a lot of the clothing and all the shoes on eBay. Ms C said she did not know what Ms Bastin's eBay name was.
Ms C stated that Ms Bastin asked how much money her parents wanted for the clothing. Ms Bastin said that she would go to the bank and get the money. Ms C stated that her parents did not accept the offer.
Ms Bastin stated that she still had a lot of clothes at her house and offered that Mrs B could come and collect them. Ms C said that she told Ms Bastin that she and her two sons would come with Mrs B to collect the items of clothing.
Later that day, Ms C went to Ms Bastin's home with her two sons and Mrs B. Ms Bastin opened two cupboards which were full of clothing and said Mrs B could look through them to find what was hers. Ms C observed that it seemed like Ms Bastin did not know what belonged to her and what belonged to Mrs B.
Ms C said that her mother picked up about 80 items of clothing. She stated that Ms Bastin also brought a load of washing from a dryer which was still warm and let Mrs B look through it to see if any of the clothing belonged to her. Ms C stated that Ms Bastin said that she normally washes the clothing before selling it. Ms C said that her two sons filmed everything on their iPad, and that she later provided the footage to police.
In addition, Ms C also stated that prior to leaving the house, Ms Bastin thanked them like they had done her a favour. They then drove back to Mrs B's house where they laid out all the recovered clothing on a table and took photographs of it. Ms C later provided these photographs to police.
In the Photo and Video Statement of Ms C she attached the photographs she took of the items of clothing laid out on Mr A and Mrs B's dining table.
We have reviewed the photographs taken by Ms C. By our estimation, Mrs B's estimation that there were 33 items of clothing is likely to be correct from what we can see laid out on the table in these photographs. It is difficult to estimate the exact amount because there is a substantial amount of clothing piled up on the table.[87]
[87] Photo and Video Statement of Ms C, Attachment B; see also Applicant's Bundle, Tab 7, pages 35 - 38.
In the Photo and Video Statement of Ms C she confirmed that she had extracted the video footage (that her two sons filmed on their iPad at Ms Bastin's house) and provided it to police.[88]

Other contemporaneous documents

[88] Photo and Video Statement of Ms C, para 4.

A file note dated 24 October 2019 from At Home Care records that the writer telephoned Ms Bastin on 23 October 2019 to discuss the allegations that she had been stealing from Mr A and Mrs B in their home. That file note shows that Ms Bastin made partial admissions. The file note records:[89]
… I asked her to elaborate on the incident and she relayed the following:
-[Mrs B] had been sorting clothes that she no longer wanted
-[Mrs B] gave Michelle some clothes
-Michelle stole other clothes from [Mrs B] without her knowledge
-[Mr A] approached her about this
-Michelle agreed to the family following her home to retrieve the stolen items
[89] Applicant's Bundle, Tab 14, page 221.
A further AHPRA file note of a telephone call with the notifier from At Home Care, dated 31 December 2019, records that the Human Resources Manager from At Home Care had emailed Ms Bastin to arrange to meet with her on 24 October 2019. Ms Bastin had stated that she was not able to come in and wanted to consult a lawyer. It records that she did not attend the scheduled meeting.[90]
[90] Applicant's Bundle, Tab 14, page 234.
An email dated 30 December 2019 from At Home Care in response to further questions from AHPRA, stated that Ms Bastin 'admitted to me that she stole from the family'.[91]

Video recordings

[91] Applicant's Bundle, Tab 2, page 13.

There are three videos: Recording of Admissions Video; Attendance at Premises Video 1; and Attendance at Premises Video 2.
In the Recording of Admissions Video, Mr A, Ms C and Ms Bastin are sitting at a dining table and Mrs B is standing. Mr A confronts Ms Bastin with video footage of her trying on a jacket and looking at the sizes of clothes. He confronts her with stealing food (including tomatoes and boxes of orange juice) and to wearing Mrs B's tops when she is in their home. Ms Bastin admits to drinking the orange juice and eating biscuits.

Ms Bastin admits to taking 'one or two tops' and wearing them to the house while she was working; to stealing items of food and drink whilst working for the family; and to stealing $1,000 worth of clothes. Ms Bastin offers to return the items and to also pay money to the family on top of that. It appears to us that this offer is made in response to demands from Mr A that 'if you don't bring the stuff back, I'll ring the police', and that if she returns the items, 'we'll see what we can do'. An arrangement is made at the end of the video that Mrs B and Ms C will go to Ms Bastin's house with her to retrieve the stolen items.
The Attendance at Premises Video 1 shows Ms Bastin, Mrs B and Ms C and one of Ms C's sons walk up to and enter Ms Bastin's home. They are filmed walking through the house into a bedroom. Mrs B goes through a wardrobe opened by Ms Bastin and searches for items of clothing belonging to her. Ms C assists her. Mrs B identifies numerous items of clothing as belonging to her, takes them off hangers and puts them on the bed. Ms Bastin is filmed taking clothing out of a dryer or washing machine in the laundry. Ms Bastin identifies three tops as belonging to Mrs B, saying 'I think this one's yours'; 'I think this one is'; and 'this one', as she removes the tops from hangers in the wardrobe and hands them to Mrs B.
In the Attendance at Premises Video 2, Mrs B and Ms C continue looking for clothes in the wardrobe and identifying clothes belonging to Mrs B. Mrs B is going through the wardrobe and pulling out clothes which she hands to Ms C who removes the hangers and puts them on the bed. Three items of clothing are identified as belonging to a female named S, who we infer was a relative or friend of Mrs B.
Mrs B asks Ms Bastin if she has any of her clothes that still had tags attached, to which Ms Bastin replied, 'If I did, I probably pulled them off'. By the end of the video there is a large pile of clothes on the bed. Mrs B commented, 'It's a lot, isn't it?'. One of the boys says, 'it's so much'. Ms C asked, 'what's going to happen with the ones that have been sold?' Ms Bastin states that if Mr A and Mrs B tell her what the price is she will arrange to pay them. Ms Bastin asks, 'are you happy with that arrangement', to which Mrs B says 'yes' and that 'the only thing missing is my shoes'. The family packed the clothing into two large bags. As the family are leaving Ms Bastin thanked them for coming. She can be heard saying to text her what the difference is, which we infer is a reference to Mr A and Mrs B telling her how much money she owed them.

Findings of fact

As we indicated earlier in these reasons, we are satisfied that the evidence of Mr A, Mrs B and Ms C is truthful and reliable. It is also corroborated by the video and photographic evidence, and by Ms Bastin's partial admission to At Home Care that she stole some items from the family.
Based on the evidence we have just outlined; we make the following findings of fact that are relevant to this issue.
Whilst working as a carer in Mr A and Mrs B's home for their two disabled children, Ms Bastin was often left unattended in the house.
Whilst working for Mr A and Mrs B in their home, Ms Bastin stole multiple items of clothing. The clothing primarily belonged to Mrs B. There were at least 33 items of clothing stolen from Mr A and Mrs B's home by Ms Bastin. Some of the clothing was new with tags on it. Ms Bastin stole more than one pair of shoes from Mrs B.
Ms Bastin wore items of clothing she had stolen from Mrs B on at least two separate occasions when working for the family in their home. On one occasion Mr A saw her wearing a blue sleeveless top which belonged to his wife. Mrs B also saw Ms Bastin wear a red blouse with flowers on it which belonged to Mrs B that she had made in Melbourne.
Ms Bastin also stole toiletries, groceries, food items and laundry products from the family whilst working for them in their home. On a weekly basis, Mr A and Mrs B started to notice items going missing.
Ms Bastin was not given permission by Mr A or Mrs B to borrow or to take any of the items. As such, we reject the explanation Ms Bastin gave to At Home Care that Mrs B was sorting clothes she no longer wanted and gave some to Ms Bastin. We are satisfied, and we find, that Ms Bastin knew she was stealing items from the family that she was not entitled to.
When Ms Bastin was confronted and shown photographs of herself looking at the sizes of clothes and trying on clothes in the family home, Ms Bastin admitted to stealing food items, clothing and shoes. She also admitted that some of the clothing items belonged to Mrs B when Mrs B was sorting through the wardrobe and pulling out items from the wardrobe at Ms Bastin's home.
Under threat of being reported to the police, Ms Bastin offered to return the clothes and to also pay money to Mr A and Mrs B. She offered that Mrs B could attend her house to locate any of her clothing Ms Bastin was in possession of.
Mrs B found approximately 33 items of her clothing, including three items of clothing belonging to another female, identified as 'S', which were stolen from the family's home, hanging in a wardrobe at Ms Bastin's home.
Ms Bastin sold more than one pair of shoes she had stolen from Mrs B on eBay. She also sold some of Mrs B's clothing on eBay. She admitted this to the family on 22 October 2019.
The value of the clothing stolen by Ms Bastin was approximately $1,800.
Mr A made the complaint to police.
When Ms Bastin commenced stealing the items from the family's home whilst working for them is less clear to us.
In assessing the likely timeframe in which the stealing occurred, we are assisted by the following facts:
(a)Ms Bastin worked for the family three days a week from 17 December 2018 to 22 October 2019. The family did not suspect the stealing straight away. Mr A, for example, said it was about 10 months after Ms Bastin commenced caring for their children in their home that he became suspicious that she was stealing from them. This suggests the stealing is likely to have commenced some months after Ms Bastin started working for the family.
(b)A large volume of clothing was stolen, comprising approximately 33 items, plus shoes, food items, toiletries and laundry items. It is likely that Ms Bastin would have removed the items from the home gradually to avoid the family noticing.
(c)The evidence of Mr A and Mrs B also suggests the items went missing over time. For example, Mrs B said that each week items went missing. Ms Bastin wore items of clothing to the house on at least two occasions which made the family suspicious, resulting in Mr A setting up cameras.
(d)Some of Mrs B's clothes and shoes had been sold on eBay by the time Mrs B attended Ms Bastin's house to collect them on 22 October 2019. This also suggests items were being sold on eBay over a period of time, which in turn lends support to a finding that the stealing occurred over a period of months.

Our conclusion on issue 4

We are satisfied, and we find, that Ms Bastin was stealing items whilst working as a carer at Mr A and Mrs B's house over a period of several months from approximately July 2019 to 22 October 2019.
In answer to the question posed in this issue, we are satisfied, and we find, that Ms Bastin misappropriated personal items and consumables from Mr A and Mrs B from approximately July 2019 to 22 October 2019.

Issue 5

Whether the Respondent's conduct found by the Tribunal constitutes professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance as defined in s 5 of the Schedule to the National Law?

Ms Bastin's conduct, that is, stealing clothing, shoes, food, toiletries and laundry items from Mr A and Mrs B's home whilst caring for their two disabled children, unequivocally amounts to professional misconduct.
The gravity of Ms Bastin's conduct is evident from the fundamental and serious nature of it.
Ms Bastin has breached Principle 1.2 of the Code of Conduct which requires nurses to practise honestly and ethically and not to engage in unlawful behaviour. The Code of Conduct expressly states that nurses must not take possessions or property from person's (they are caring for) or their families.
Ms Bastin also breached Element 1 of the Code of Ethics which requires nurses, amongst other things, to behave with trustworthiness and integrity.
Stealing multiple items from Mr A and Mrs B in their home over a period of months whilst occupying the trusted position of carer for the couple's two disabled children, is a clear and obvious breach of these fundamental obligations in the Code of Conduct and the Code of Ethics.
There are other factors in this case which lend further support to a finding that the conduct was serious misconduct that amounts to professional misconduct.
Firstly, the conduct occurred in Mr A and Mrs B's home, in circumstances where they trusted Ms Bastin to look after their two disabled children. Indeed, in her statement, Mrs B expressly stated that she trusted Ms Bastin to look after the house and the children when she and her husband were not there. Patients and their families are entitled to feel safe and secure in their own homes and stealing personal items and belongings is a gross violation of trust and an interference with the safety and security that these persons are entitled to feel in their homes.
Secondly, Mr A and Mrs B are vulnerable persons. At the time Ms Bastin was stealing from them, they were 69 and 70 years of age respectively. Mr A was unemployed, and Mrs B a housewife. Mr A and Mrs B are the parents of two disabled children who live with them. They had engaged Ms Bastin to help them care for the children.
Thirdly, Ms Bastin's conduct was not opportunistic. It occurred over a period of months and, in our view, involved a level of forethought and planning. There is, for example, photographic evidence of Ms Bastin holding up clothing on hangers to examine it, and trying on some of the clothing for size, including pants and a jacket. This shows a consideration of the items she was taking. Ms Bastin would have had to surreptitiously remove the items of clothing from the home in such a manner to prevent Mr A and Mrs B from noticing their removal. Ms Bastin washed some of the clothing and sold it on eBay. As such, we are also satisfied that she was motivated by financial and personal gain.
Fourthly, we are satisfied that Ms Bastin has not shown any remorse or insight. She has not apologised to Mr A and Mrs B. She has not sought to reimburse them. She attempted to minimise her behaviour when she was telephoned by At Home Care by saying that Mrs B gave her some of the clothes. She did not cooperate with AHPRA and accused them of defamation. She did not participate in the Tribunal's processes, other than to seek that the evidence in the Criminal Proceedings could not be used in these Tribunal proceedings. Her submissions and statements on this issue seek to mitigate the seriousness of that evidence. For example, as we discussed above in the section on '[t]he AHPRA investigation', Ms Bastin told AHPRA that the evidence in the Criminal Proceedings was 'thrown out' by the Court 'due to disclosure issues with the … family's story …'. In our view, this also shows that she has not taken responsibility for her conduct and lacks insight into it.
Although the conduct in each proceeding needs to be assessed in accordance with the facts and circumstances of each individual case, there are numerous decisions of responsible Tribunals in which health practitioners who have stolen from their patients and the family members of patients have been found to have committed professional misconduct. In all the cases cited, the practitioner had been convicted of stealing or other dishonesty offences by a Court. The absence of a criminal conviction in Ms Bastin's case does not change the nature of the conduct, which we are satisfied occurred on the balance of probabilities and to the Briginshaw standard.
In Mehra,[92] a Western Australian case decided by consent, the nurse took a debit card from a patient's private room at the hospital where she worked and used it to make 10 fraudulent transactions to the value of approximately $433.03. The nurse was found to have engaged in professional misconduct.
[92] Nursing and Midwifery Board of Australia and Mehra [2022] VR 99 (Mehra).
Similarly, in Sotingco,[93] a nurse stole credit card information from an elderly patient who was a resident in a nursing home where she worked. She used the credit card details to make online purchases of cologne, toiletries and beauty products to the value of $443 and unsuccessfully attempted to buy clothes online valued at $1,521. She was convicted of Obtaining Property by Deception and another related offence. The Tribunal found the nurse to have engaged in professional misconduct.
[93] Nursing and Midwifery Board of Australia v Sotingco [2018] VCAT 1615 (Sotingco).
In BCD,[94] the nurse was found to have stolen $10,000 from a resident at an aged care facility by transferring the money into her own bank account on two occasions. She was convicted of two counts of fraud. The Tribunal found that the practitioner's conduct was professional misconduct.[95]
[94] Nursing and Midwifery Board of Australia v BCD [2024] QCAT 485 (BCD).
[95] BCD, at [10].
In Roza,[96] a paramedic stole cash ($580) from the wallet of a deceased patient whilst he was present in the patient's home in his role as a paramedic. He was convicted of one count of stealing. The Tribunal found the paramedic behaved in a way that constitutes professional misconduct.
[96] Health Ombudsman v Roza [2022] QCAT 420 (Roza).
In Scheggetman,[97] a nurse stole property from the wife of a patient when she left her handbag unattended in the patient's room. The nurse was convicted of numerous dishonesty offences. The Tribunal did not expressly state a finding of professional misconduct but made orders requested by the Applicant which were sought on the basis that he was not a fit and proper person to hold registration as a nurse.
[97] Health Care Complaints Commission v Scheggetman [2023] NSWCATOD 48 (Scheggetman).
We are satisfied, and we find, that Ms Bastin's conduct constitutes professional misconduct under subsections (a) and (c) of the definition in s 5 of the National Law.
Specifically, stealing from patients or clients in their home is conduct which falls substantially below the standard reasonably expected of a registered nurse. Indeed, that conduct falls well below, and is a very significant and fundamental departure from those standards. We do not consider that we require any expert evidence to establish that Ms Bastin's conduct is substantially below the standard reasonably expected because stealing items from patients or their family members is such an obvious departure from that standard.
Such conduct is also inconsistent with Ms Bastin being a fit and proper person to hold registration in the health profession. As we have mentioned, honesty and integrity are fundamental and essential characteristics for a nurse. Stealing from vulnerable clients in their home is a clear indication of such a lack of propriety.
We have not made a finding that Ms Bastin's conduct was professional misconduct by virtue of being disgraceful or dishonourable because that was not part of the case put by the Board. In any event, it is unnecessary for us to make such a finding because Ms Bastin's conduct squarely falls within the definition of 'professional misconduct' in s 5(a) and 5(c) of the National Law.
For the above reasons, we are satisfied, and we find, that Ms Bastin engaged in 'professional misconduct' as defined in s 5(a) and s 5(c) of the National Law.

Confidentiality order

The Board has requested that we make non-publication orders to protect the privacy of Mr A, Mrs B and Ms C. They refer us to the case of ZQX[98] where the Tribunal stated:
Non-publication orders over information relating to the health and/or treatment of persons who are patients is regularly regarded in the Tribunal as confidential or otherwise information the publication of which is contrary to the public interest[.]
[98] Medical Board of Australia v ZQX [2024] QCAT 532 (ZQX) at [10].
We agree that it is appropriate for us to make such an order to protect the identities of the family and their two disabled children for whom Ms Bastin was engaged to care for.
We have therefore made a separate order under s 62(3) of the SAT Act that the name and any identifying details of Mr A, Mrs B and Ms C, are not to be published and that they are to be referred to by those pseudonyms.

Conclusion

As we have explained, we have found that Ms Bastin has engaged in professional misconduct as defined in s 5(a) and 5(c) of the National Law and we will make an order to that effect.
We will also hear from the parties as to programming orders which should be made to facilitate a hearing as to the appropriate sanction to be imposed in light of our finding that Ms Bastin has engaged in professional misconduct and as to costs.

Orders

The Tribunal finds:
1.The Respondent engaged in 'professional misconduct' as defined in s 5(a) and s 5(c) of the National Law when, between approximately July 2019 to 22 October 2019, she stole numerous items of clothing, shoes, toiletries, food and other household items from Mr A and Mrs B's home whilst she was working in their home as a carer for their two disabled children.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
5 NOVEMBER 2025