NURSING AND MIDWIFERY BOARD OF AUSTRALIA and BURWOOD - [2023] WASAT 36

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA and BURWOOD [2023] WASAT 36
MEMBER:   MR D AITKEN, SENIOR MEMBER
MS M HIPWORTH, MEMBER
DR B JONES, SESSIONAL MEMBER

HEARD:   19 SEPTEMBER 2022
DELIVERED          :   18 MAY 2023
FILE NO/S:   VR 54 of 2021
BETWEEN:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
SELVARANI BURWOOD
Respondent

Catchwords:

Vocational regulation - Nurse - Criminal conviction for stealing personal protective equipment from a hospital - Use of position as Clinical Nurse Facilitator to pressure, manipulate and/or coerce student nurses to assist in stealing - Failure to notify Board of criminal charges - Professional misconduct - Unprofessional conduct

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 5, s 41, s 130, s 130(1), s 130(3)(a)(i), s 193, s 193(1)(a)(i), s 196(1)(b)(ii), s 196(1)(b)(iii)
State Administrative Tribunal Act 2004 (WA), s 62(3)
The Criminal Code Act Compilation Act 1913 (WA), s 378, s 378(5)(f)

Result:

Findings of professional misconduct and unprofessional conduct

Category: B

Representation:

Counsel:

Applicant	:	Ms J McKenzie
Respondent	:	No Appearance

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Health Ombudsman v Jamieson [2017] QCAT 172
Health Ombudsman v Macdonald [2016] QCAT 473
Medical Board of Australia and Shanab [2022] WASAT 89
Nursing and Midwifery Board of Australia and Ward [2022] WASAT 104

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The Nursing and Midwifery Board of Australia (Board) has referred a matter about the respondent, Mrs Selvarani Burwood (Practitioner) to the Tribunal under s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) (National Law) set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
The Board alleges that the Practitioner has behaved in a way that constitutes professional misconduct as defined in s 5 of the National Law. That behaviour is detailed below.
For the reasons which follow, we have found that the behaviour of the Practitioner constitutes professional misconduct, apart from one incident of the behaviour of the Practitioner that constitutes unprofessional conduct.

Alleged professional misconduct

The Board alleges that the Practitioner has behaved in a way that constitutes professional misconduct as defined in s 5 of the National Law, because the Practitioner:
1.on 3 March 2020, 4 March 2020 and 6 March 2020, used her position of authority over three student nurses to pressure, manipulate and/or coerce them to assist her in stealing personal protective equipment (PPE) from a hospital for her (allegation 1);
2.on 4 March 2020, stole PPE from an equipment trolley at a hospital (allegation 2);
3.on 4 March 2020, stole PPE from a storage room at a hospital (allegation 3);
4.on 6 March 2020, stole PPE from a storage room at a hospital (allegation 4);
5.failed to provide the Board with written (or any) notice within 7 days of being charged with three counts of stealing, as required by s 130 of the National Law (allegation 5); and
6.by virtue of the conduct referred to above, failed to comply with principles 1.2, 2.1, 5.1 and 7.2 of the Code of Conduct for Nurses (Code of Conduct), which was adopted by the Board on 1 March 2018 and elements 1, 2 and 4 of the International Code of Ethics for Nurses of the International Council of Nurses (Code of Ethics), which was adopted by the Board on 1 March 2018 (allegation 6).

Procedural history of the proceedings

Before listing the matter for a final hearing, the Tribunal held three directions hearings at which orders were made for the Board and the Practitioner to file with the Tribunal and give to each other a book of the documents they wished to rely on at the final hearing and written submissions.
The Board filed a book of documents (in two volumes) and written submissions.
However during the course of the proceedings, the husband of the Practitioner, on behalf of the Practitioner, sent several emails to the Tribunal stating that the Practitioner was unable to participate in the proceedings due to her ongoing ill-health (evidenced by medical certificates attached to those emails) and she would not be filing any documents, but she wished the proceedings to go ahead and for the matter to be resolved without her input. The final email, seven days prior to the final hearing, confirmed that the Practitioner would not be attending the final hearing.
Based on those emails, we were satisfied that the Practitioner had been afforded procedural fairness (natural justice) and it was appropriate for the final hearing to proceed, in the absence of the Practitioner.

Non-publication order

At the beginning of the final hearing, we made an order pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA), that the names of the three student nurses (Students) whose witness statements have been filed with the Tribunal and tendered as evidence during the final hearing and any identifying information in relation to those persons is not to be published. For this reason, the tertiary institution (Tertiary Institution) at which the Students were studying and the hospital (Hospital) where the Practitioner was supervising the Students on clinical practice placements are not identified in these reasons.

Final hearing

At the final hearing the Board put into evidence various documents contained in its book of documents, which included:
•witness statements from each of the Students;
•the position description for the Practitioner's employment with the Tertiary Institution;
•a statement dated 30 January 2020 by the Director-General of the World Health Organisation;
•an ABC News article dated 5 March 2020 regarding face mask shortages;
•the Code of Conduct;
•the Code of Ethics;
•documents relating to the stealing charges against the Practitioner, including the statement of material facts dated 12 March 2020 (Statement of Material Facts), the transcript of the hearing in the Magistrates Court on 22 June 2020 and the notice of conviction of the Practitioner dated 22 June 2020; and
•emails and correspondence.

The onus of proof

The party bringing the proceedings, in this case the Board, bears the onus of proof. The standard of proof is the civil standard of the balance of probabilities and the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply.[1]
[1] See Medical Board of Australia and Shanab [2022] WASAT 89 (Shanab) at [71].

Facts

Based on the evidence presented by the Board during the final hearing we are satisfied, on the balance of probabilities and applying the Briginshaw approach, which requires that the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts, we make the following findings of fact.

Practitioner's registration and employment

The Practitioner was, at all material times, a Registered Nurse (Division 1) under the National Law, having held that registration between 10 December 1976 and 8 June 2021, when she surrendered her registration.
At all material times the Practitioner was employed by the Tertiary Institution on a casual basis in the role of Clinical Nurse Facilitator. As part of that role the Practitioner was required to:
(a)supervise nursing students from the Tertiary Institution at the Hospital;
(b)assist those students to develop the knowledge, skills and attitudes necessary for practice within a clinical environment as a beginning level registered nurse; and
(c)act as a professional role model for those students.

COVID-19 outbreak

On 30 January 2020, the Director-General of the World Health Organisation (WHO) declared the COVID-19 outbreak a public health emergency of international concern; WHO's highest level of alarm.
Between 3 March 2020 and 10 March 2020 the Practitioner was responsible for supervising the Students at the Hospital.
During this time, there was a national shortage of face masks and significant concern within the medical community and the community at large about mask shortages and the effect of COVID-19.

Alleged theft

On 10 March 2020 the Tertiary Institution was notified by the Hospital of the alleged theft of PPE by the Practitioner and the Tertiary Institution suspended the Practitioner's facilitation of the Students effective immediately.

Stealing charges

On 12 March 2020 the Practitioner was arrested by the Western Australian Police (WA Police) and charged with one count of stealing contrary to s 378 of The Criminal Code[2] (Criminal Code) and two counts of 'stealing by opening locked room, box or other receptacle by means of a key or other instrument' contrary to s 378(5)(f) of the Criminal Code (stealing charges).
[2] Established by the Criminal Code Act Compilation Act 1913 (WA).
The Practitioner did not notify the Board of the stealing charges.
On 13 March 2020 the Tertiary Institution issued a 'show cause' notice to the Practitioner and on 23 March 2020 the Practitioner resigned from her employment with the Tertiary Institution.

Notification to the Board by the Tertiary Institution

On 13 March 2020 the Board received a notification from the Tertiary Institution, which stated that the Practitioner had been charged with the offence of stealing PPE from a hospital whilst supervising nursing students on clinical practice placement.

Conviction

At a hearing before Deputy Chief Magistrate Woods on 22 June 2020 (Magistrates Court hearing) the WA Police amended the charges against the Practitioner to three counts of stealing contrary to s 378 of the Criminal Code, with the stolen items being 13 face masks in the first charge, 12 face masks in the second charge and a handful of disposable gloves and 10 alcohol wipes in the third charge.
The Practitioner entered a plea of guilty to those amended charges and Deputy Chief Magistrate Woods imposed a fine of $1,000 and court costs of $118.50 and declined to make a spent conviction order (Conviction).

Events at the Hospital from 3 March 2020 to 6 March 2020

At or around 2.00 pm on 3 March 2020 the Practitioner took the Students to the dining area of the Hospital and said to the Students words to the effect that she would be travelling to England in two weeks, was going to places that are high risk for COVID-19, she was worried about her health, and she needed the Students to take masks from the wards for her.
The Practitioner was asked by one of the Students if she still intended to travel despite the COVID-19 pandemic and she said that she had spent $10,000 on the trip and that she would still be going with her family.
The Practitioner said to the Students words to the effect that she needed them to take some masks from the ward and the Students responded with words to the effect that she must be joking and laughed. The Practitioner said words to the effect that the Students should not laugh, and she had asked other students from her last rotation to do it and none of them had brought her any masks and she was disappointed in them.
Each of the Students say that they felt that what the Practitioner was asking them to do was wrong and this put them in an uncomfortable and stressful situation and two of them refer to the power which the Practitioner had regarding their grades in respect of their placement at the Hospital.
At or around 1.00 pm on 4 March 2020 the Practitioner noticed an equipment trolley outside the room of a patient at the Hospital and instructed the Students to stand in front of the trolley to block the view of it from other staff members. While the Students were standing in front of the equipment trolley, the Practitioner removed items of PPE from it and put them in her handbag. According to the Statement of Material Facts, the items of PPE were face masks and disposable gloves. However, during the Magistrates Court hearing WA Police amended the charge to relate to 13 face masks and the Practitioner pleaded guilty to stealing 13 face masks.
At or around 1.30 pm on 4 March 2020 the Practitioner went with the Students into a storage room in the Hospital and removed items of PPE from the shelves of the storage room and placed them in the uniform pockets of the Students. The Students then went with the Practitioner to a meeting area in the Hospital where she directed them to put the items of PPE into her handbag. According to the Statement of Material Facts, the items of PPE were face masks, disposable gloves and alcohol wipes. However, during the Magistrates Court hearing WA Police amended the charge to relate to 12 face masks and the Practitioner pleaded guilty to stealing 12 face masks.
At or around 1.00 pm on 6 March 2020 the Practitioner went with two of the Students into a storage room in the Hospital and removed items of PPE from the shelves of the storage room and placed them in the uniform pockets of those Students. The Practitioner then directed the two Students to meet her in an office area of the Hospital where she took the items of PPE from their uniform pockets and put them into her handbag. According to the Statement of Material Facts, the items of PPE were face masks, disposable gloves and alcohol wipes. However, during the Magistrates Court hearing WA Police amended the charge to relate to a handful of disposable gloves and 10 alcohol wipes and the Practitioner pleaded guilty to stealing a handful of disposable gloves and 10 alcohol wipes.

Requirements in the Code of Conduct

The Code of Conduct sets out the legal requirements, professional behaviour and conduct expectations for all nurses, in all practice settings, in Australia. It includes seven principles of conduct.
The Board says that the Practitioner has breached the following requirements of the Code of Conduct.
Principle 1.2 (Lawful behaviour) includes a requirement that a nurse practise honestly and ethically and not engage in unlawful behaviour.
Principle 2.1 (Nursing practice) includes a requirement that a nurse provide leadership to ensure the delivery of safe and quality care and understand their professional responsibility to protect people, ensuring employees comply with their obligations.
Principle 5.1 (Teaching and supervising) includes a requirement that a nurse must avoid, where possible, any potential conflicts of interest in teaching or supervision relationships that may impair objectivity or interfere with the supervised person's learning outcomes or experience.
Principle 7.2 (Health Advocacy) includes a requirement that a nurse must use their expertise and influence to protect and advance the health and wellbeing of individuals as well as communities and populations.

Requirements in the Code of Ethics

The Code of Ethics has four principal elements that outline the standards for ethical conduct of nurses.
The Board says that the Practitioner has breached the following requirements of the Code of Ethics.
Element 1 (Nurses and people) includes a requirement that a nurse demonstrate trustworthiness and integrity.
Element 2 (Nurses and practice) includes a requirement that a nurse at all times maintains standards of personal conduct which reflects well on the profession and enhances its image and public confidence.
Element 4 (Nurses and co-workers) includes a requirement that a nurse sustains a collaborative and respectful relationship with co‑workers in nursing and other fields.

The application of the National Law

The application of the National Law when a matter has been referred to the Tribunal by the Board under s 193 of the National Law was very usefully set out by the Tribunal recently in Nursing and Midwifery Board of Australia and Ward [2022] WASAT 104 (Ward) at [16] – [32] as follows (with citations and footnotes omitted):
16As stated, the Board has referred this matter to the Tribunal pursuant to s 193 of the National Law. The application of the National Law was recently set out by the Tribunal in Medical Board of Australia and Shanab (Shanab) for which we are grateful. The following commentary is largely derived from Shanab by reference to the Court of Appeal's decision in Panegyres v Medical Board of Western Australia (Panegyres).
17The National Law applies as a law of Western Australia by virtue of s 4(1)(a) of the National Law. The Tribunal is the responsible tribunal for Western Australia for the purposes of the National Law.
18Pursuant to s 196(1) of the National Law, after hearing a matter about a registered health practitioner the Tribunal may decide whether, relevantly, the practitioner has engaged in any or all of the following:
i)unsatisfactory professional performance;
ii)unprofessional conduct; or
iii)professional misconduct.
19Unsatisfactory professional performance is defined to mean 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.
20Unprofessional conduct is defined to mean 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.
21Professional misconduct is defined in s 5 of the National Law to include:
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.
22In Panegyres, the Court of Appeal considered, in some detail, the statutory scheme for the National Law. The principles that can be drawn from that decision can be summarised as follows:
a)unlike the other two defined terms (being unsatisfactory professional performance and unprofessional conduct), the definition of professional misconduct is inclusory and does not contain an exhaustive statement of the concept;
b)professional misconduct has both a performance component (paragraphs (a) and (b)) and a conduct component (paragraph (c));
c)under paragraphs (a) and (b) of the definition of professional misconduct, there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct; and
d)it follows from the non-exhaustive nature of the definition that the concept of professional misconduct is wider than that which is provided for in paragraphs (a) to (c). It can include conduct which does not fall within any of paragraphs (a), (b) or (c) in the definition.
For example, conduct which was formerly referred to in cases as 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 (in the sense described in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, 763) (Allinson).
23A finding of professional misconduct under paragraphs (a) or (b) of the definition in s 5 of the National Law involves, in substance, two elements:
1)First, the practitioner's conduct as established must constitute one instance (in the case of paragraph (a)), or more than one instance (in the case of paragraph (b)), of unprofessional conduct.
2)Second, the conduct must individually, in the case of paragraph (a), or taken together, in the case of paragraph (b), amount to conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. This second element, (being the conduct that was substantially below the relevant standard), involves answering three questions.
A.What level of training or experience is possessed by the practitioner?
B.What standard of conduct would be reasonably expected of a registered health practitioner of that level of experience?
C.Was the conduct of the practitioner substantially below the standard identified?
24In Shanab, the Tribunal noted that the inquiry as to the second element is potentially different to the question that must be considered under the designated meaning of the term 'unprofessional conduct'. For unprofessional conduct, the standard is what might reasonably be expected of the practitioner. Often, but not always, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level of experience.
25In the context of professional misconduct, it is not enough that the practitioner's conduct is merely less than the relevant standard. The departure must be substantially below that standard. For the conduct to be substantially below the requisite standard it ought to reflect a degree of serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience but that is not to suggest that conduct is only substantially below the relevant standard where it is inconsistent with the practitioner being a fit and proper person to hold registration.
26Whether behaviour constitutes professional misconduct as being substantially below the relevant standard involves a qualitative evaluation rather than a binary determination. The question is one of degree.
27The existence of a generally accepted professional standard is a question of fact. There are at least three means by which the Board may establish a relevant professional standard.
a)by expert evidence as to the generally accepted standards or duties;
b)professional conduct rules, including relevantly, in this instance:
i)the International Council of Nurses Code of Ethics for Nurses (revised 2012) (Code of Ethics); and
ii)the Board's Code of Conduct for Nurses (dated 1 March 2018) (Code of Conduct); and
c)an applicable statutory regime governing the conduct in question.
28In addition, it is plain that there are some professional standards that can be accepted without evidence. Cases within this category have generally involved an element of moral turpitude, fraud or dishonesty.
29Because, in this instance, the Code of Ethics or Code of Conduct are relied upon, ultimately the question is not merely whether the impugned conduct is in breach of the relevant code, but whether the conduct as found is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.
30Professional misconduct is plainly reserved for conduct which is more serious than unprofessional conduct. It is not entirely clear where the concept of unsatisfactory professional performance falls within the relevant hierarchy. In Panegyres, Vaughan JA observed that the three categories of behaviour are categories of different gravity.
31In considering how to characterise the Respondent's conduct, the Board submits it is important to bear in mind the underlining purpose of disciplinary proceedings. As was observed in Health Care Complaints Commission v Litchfield (Litchfield):
Disciplinary proceedings against members of a professional are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.
And:
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards to be applied by the Tribunal.
32The point that arises from Litchfield is that the focus is not on the gravity of the conduct of itself, rather it is the degree of variation from proper professional standards.

Relevant health practitioner cases

In its submissions, in support of its contention that the Practitioner's conduct amounts to professional misconduct, the Board has referred to two decisions of the Queensland Civil and Administrative Tribunal (QCAT) which dealt with cases of registered nurses who stole medical supplies from their employers.
In Health Ombudsman v Jamieson [2017] QCAT 172 (Jamieson), the respondent had been a registered nurse for 46 years. She stole three boxes of antibiotics from the hospital at which she worked, and she was convicted of stealing as a servant. The Hon J B Thomas QC, Judicial Member said at [27]:
27.The stealing of medical supplies by a nurse from his or her place of employment is a serious act of misconduct. The present case, which involves the taking of some fairly familiar antibiotics, does not raise quite the same level of concern as the taking of illicit drugs, or patently dangerous, habit-forming drugs. The respondent's motivation (a desire to assist her son) is less concerning than the common motivations of the taking of various forms of prohibited drugs. But it was still an act of plain theft, and there was an intent to allow some of them to be taken without qualified medical supervision. While this conduct lies at the lower end of examples of this type of misconduct, it strikes directly at the proper provision of medical services, and I have no hesitation in concluding that such a theft may be characterised as professional misconduct.
In Health Ombudsman v Macdonald [2016] QCAT 473 (Macdonald), the respondent was a registered nurse who stole 11 boxes of a Schedule 4 medication from her employer. The Hon J B Thomas QC, Judicial Member said at [26] and [27]:
26.The joint submissions include reference to codes and guidelines, and in particular, to the Nursing and Midwifery Board of Australia's Code of Ethics for Nurses in Australia, the Code of Professional Conduct for Nurses in Australia and the International Council of Nurses Code of Ethics for Nurses.
27.It is not necessary to resort to those codes in order to determine that the conduct in question was unprofessional, and substantially below the standard reasonably to be expected of a registered health practitioner of equivalent level of training or experience. The stealing of the prescription drugs from an employer by a nurse represents a significant breach of trust and abuse of position which is not tolerable within the profession. It is simply conduct that nurses must not engage in. Such conduct necessarily undermines the confidence that the public must retain in the profession.

Does the behaviour of the Practitioner constitute professional misconduct?

The Board alleges professional misconduct by the Practitioner, based on the six allegations which are set out in [4] above.
We consider that the behaviour referred to in those six allegations falls within three separate categories:
1.The Practitioner stealing items of PPE from the Hospital, which is the behaviour referred to in allegations 2, 3 and 4.
2.The Practitioner using her position of authority as Clinical Nurse Facilitator to pressure, manipulate and/or coerce the Students to assist her in stealing PPE from the Hospital, which is the behaviour referred to in allegation 1.
3.The Practitioner failing to give written notice to the Board of the stealing charges within 7 days, which is the behaviour referred to in allegation 5.
In our view, the failure of the Practitioner to comply with the principles of the Code of Conduct and the elements of the Code of Ethics, which is the subject of allegation 6, is not, of itself, conduct which might constitute professional misconduct.
Under s 41 of the National Law, the Code of Conduct and the Code of Ethics, which are codes approved by the Board, are admissible in these proceedings as evidence of what constitutes appropriate professional conduct by a registered nurse, such as the Practitioner.
However, where the Code of Conduct and/or the Code of Ethics is relied upon by the Board, ultimately the question is not merely whether the impugned conduct is in breach of one or both of those codes, but whether the conduct, as found, is behaviour on the part of the Practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.[3]
[3] Ward at [29] and Shanab at [66].
In the context of professional misconduct, it is not enough that the practitioner's conduct is merely less than the relevant standard. The departure must be substantially below that standard. For the conduct to be substantially below the requisite standard it ought to reflect a degree of serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience.[4]
[4] Ward at [25] and Shanab at [65].
Therefore, we will consider the failure of the Practitioner to comply with the requirements of the Code of Conduct and the Code of Ethics as part of our consideration of the behaviour of the Practitioner in the three categories referred to in [48] above.

The Practitioner stealing items of PPE from the Hospital constitutes professional misconduct

The Practitioner pleaded guilty to the amended stealing charges. Accordingly, we have no doubt that the conduct the subject of the stealing charges occurred for the purposes of Briginshaw.
During the final hearing we raised with counsel for the Board the differences between the description of the items of PPE in the Statement of Material Facts and the items of PPE in the amended stealing charges put to the Practitioner during the Magistrates Court Hearing, to which the Practitioner pleaded guilty.
The Statement of Material Facts refers to face masks and disposable gloves in respect of the first stealing charge, which was amended to be in respect of 13 face masks.
The Statement of Material Facts refers to face masks, disposable gloves and alcohol wipes in respect of the second stealing charge, which was amended to be in respect of 12 face masks.
The Statement of Material Facts refers to face masks, disposable gloves and alcohol wipes in respect of the third stealing charge, which was amended to be in respect of a handful of disposable gloves and 10 alcohol wipes.
Counsel for the Board said that they had tried to address these differences in the Board's submissions and that it is a bit unclear from the witness statements of the Students exactly what quantity of PPE was stolen by the Practitioner. Counsel for the Board said that a minimum finding should be the quantities stated in the Conviction, but there is evidence that there was slightly more taken.
Applying the Briginshaw approach, we find that the Practitioner stole the quantities of PPE stated in the Conviction.
As stated by the Tribunal in Ward at [23], a finding of professional misconduct under paragraph (a) or paragraph (b) of the definition of professional misconduct in s 5 of the National Law involves two elements.
First, was the conduct unprofessional conduct (as defined in s 5 of the National Law)?
Secondly, was the conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience?
The second element involves answering three questions. What level of training or experience is possessed by the registered health practitioner? What standard of conduct would be reasonably expected of a registered health practitioner of that level of experience? Was the conduct of the registered health practitioner substantially below that standard?
Clearly the stealing of medical supplies from a hospital by a nurse is unprofessional conduct because it is professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner's peers.
Additionally, paragraph (c) of the definition of unprofessional conduct in s 5 of the National Law provides that it includes the conviction of a practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession. Clearly the conviction of the Practitioner for the stealing charges may affect the Practitioner's suitability to continue in the nursing profession.
Therefore, the first element of the finding of professional misconduct is satisfied.
Regarding the second element, we note that the Practitioner had been a registered nurse for 43 years at the time when she stole the PPE and was, therefore, very experienced.
Clearly the behaviour of the Practitioner in stealing the items of PPE breached both the Code of Conduct and the Code of Ethics. However, as stated above[5], that is not the issue. The issue is whether that behaviour is substantially below the standard reasonably expected of a registered nurse of an equivalent level of training and experience of that of the Practitioner.
[5] See [49] – [51] of these reasons.
Applying the statements by the Hon J B Thomas QC, Judicial Member of QCAT in Jamieson and Macdonald, referred to in [45] and [46] above, with which we respectfully agree, we find that the behaviour of the Practitioner in stealing the items of PPE from the Hospital, on three separate occasions, was substantially below the standard reasonably to be expected of a registered nurse of an equivalent level of training and experience of the Practitioner and constituted serious professional misconduct. Particularly in the context of the shortage of face masks and the concern within the medical community and the community at large about mask shortages and the effect of COVID-19 at the time when the Practitioner stole those items of PPE. That behaviour, therefore, constituted professional misconduct under paragraph (b) of the definition of professional misconduct in s 5 of the National Law.
Further, we find that the conduct of the Practitioner in stealing the items of PPE from the Hospital on three separate occasions, especially in the context of the shortage of face masks and the concern within the medical community and the community at large about mask shortages and the effect of COVID-19 at the time, is inconsistent with the Practitioner being a fit and proper person to hold registration in the profession and, therefore, constitutes professional misconduct under paragraph (c) of the definition of professional misconduct in s 5 of the National Law.

The Practitioner using her position of authority to pressure, manipulate and/or coerce the Students to assist her in stealing PPE from the Hospital constitutes professional misconduct

The Practitioner's conduct under consideration in this category was that:
1.on 4 March 2020, she instructed the Students to stand in front of an equipment trolley in the Hospital to block the view of it from other staff members while she stole items of PPE from the trolley;
2.on 4 March 2020, she went into a storage room in the Hospital with the Students and removed items of PPE from the shelves and placed them in the uniform pockets of the Students and then went to a meeting area in the Hospital with those Students, where she directed them to put the items of PPE into her handbag and stole them; and
3.on 6 March 2023, she went into a storage room with two of the Students and removed items of PPE from the shelves and placed them in the uniform pockets of those Students and then went to an office area in the Hospital with those Students where she placed those items of PPE in her handbag and stole them.
As stated above,[6] to find the conduct of the Practitioner referred to in [72] above to be professional misconduct under paragraph (a) or paragraph (b) of the definition of professional misconduct in s 5 of the National Law, we need to be satisfied, on the balance of probabilities and applying the Briginshaw approach, first, that it was unprofessional conduct (as defined in s 5 of the National Law) and secondly that it was conduct substantially below the standard reasonably expected of a registered nurse of an equivalent level of training or experience of the Practitioner.
[6] See [61] – [64] of these reasons.
Unprofessional conduct is defined in s 5 of the National Law to mean 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.
Under s 41 of the National Law, the Code of Conduct and the Code of Ethics, which are codes approved by the Board, are admissible in these proceedings as evidence of what constitutes appropriate professional conduct by a registered nurse, such as the Practitioner.
The conduct of Practitioner referred to in [72] above (improper conduct concerning the Students) breached principles 1.2 and 5.1 of the Code of Conduct and Elements 1, 2 and 4 of the Code of Ethics and we are satisfied that the conduct was, therefore, unprofessional conduct.
At the time of the improper conduct concerning the Students the Practitioner had been a registered nurse for 43 years and was employed by the Tertiary Institution as a Clinical Nurse Facilitator, which included the responsibilities of supervising nursing students, assisting those students to develop the attitudes necessary for practice within a clinical environment and to act as a role model for those students.
In our view, it would be reasonably expected of a registered nurse employed in the employment position which the Practitioner held that they would always act honestly and ethically and demonstrate trustworthiness and integrity of a very high standard to assist the nursing students being supervised by them to develop the appropriate attitudes necessary for practice within a clinical environment as a registered nurse and to act as a role model for those students.
In our view the improper conduct concerning the Students fell substantially short of that standard and, therefore, constituted professional misconduct under paragraph (b) of the definition of professional misconduct in s 5 of the National Law.
Further, we find that the improper conduct concerning the Students is inconsistent with the Practitioner being a fit and proper person to hold registration in the profession and, therefore, constitutes professional misconduct under paragraph (c) of the definition of professional misconduct in s 5 of the National Law.

The Practitioner failing to provide written notice to the Board of the stealing charges constitutes unprofessional conduct

Section 130 of the National Law provides that a registered health practitioner must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner, give the 'National Board' (being the Board in this case) written notice of the event.
A relevant event, for the purposes of s 130 of the National Law, includes when a practitioner is charged with an offence punishable by 12 months imprisonment or more.[7]
[7] Section 130(3)(a)(i) of the National Law.
Section 378 of the Criminal Code provides that any person who steals anything capable of being stolen is guilty of a crime and is liable to imprisonment for up to 7 years.
The stealing charges against the Practitioner were a relevant event, for the purposes of s 130 of the National Law and she was required to provide written notice of them to the Board within 7 days after 12 March 2020. The Practitioner failed to do this.
We note that in an email dated 7 September 2020 to an employee of the Australian Health Practitioner Regulation Agency (Ahpra)[8] the Practitioner stated that she was not aware that she had to report the stealing charges to Aphra within 7 days and that she informed Aphra of the charges during the process of her application for renewal of her registration after she received the renewal notice from Ahpra in late March or early April 2020.
[8] Ahpra is the organisation established under the National Law which manages the registration and renewal of registration of practitioners and complaints about the conduct of practitioners in partnership with the National Boards established under the National Law.
We find that the Practitioner's failure to notify the Board of the stealing charges within 7 days after 12 March was a contravention of s 130 of the National Law, which constitutes unprofessional conduct under paragraph (a) of the definition of unprofessional conduct in s 5 of the National Law[9].
[9] Paragraph (a) of the definition of unprofessional conduct states that unprofessional conduct includes a contravention by a practitioner of the National Law.
However, in the circumstances, we do not consider that behaviour to be conduct substantially below the standard which would reasonably be expected of a registered nurse of an equivalent level of training or experience to the Practitioner, to constitute professional misconduct.

Orders regarding the professional misconduct and the unprofessional conduct

We will make the following orders in respect of the conduct of the Practitioner:
The Tribunal orders:
1.Pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (WA) (National Law) the respondent (Practitioner) has behaved in a way that constitutes professional misconduct in that on 4 March 2020 and on 6 March 2020 she stole items of personal protective equipment (PPE) from a hospital, she was charged and she pleaded guilty and was convicted of three counts of stealing contrary to s 378 of the Criminal Code (WA), with the stolen items being 13 face masks in the first charge, 12 face masks in the second charge and a handful of disposable gloves and 10 alcohol wipes in the third charge.
2.Pursuant to s 196(1)(b)(iii) of the National Law the Practitioner has behaved in a way that constitutes professional misconduct in that on 3 March 2020, 4 March 2020 and on 6 March 2020 she used her position of authority as Clinical Nurse Facilitator to pressure, manipulate and/or coerce three student nurses who were under her supervision on clinical practice placements to assist her in stealing the items of PPE set out in order 1 above from the hospital.
3.Pursuant to s 196(1)(b)(ii) of the National Law the Practitioner has behaved in a way that constitutes unprofessional conduct in that having been charged with the offences set out in order 1 above, she failed to provide the applicant Board with written notice of the charges within 7 days of being charged, in contravention of s 130(1) of the National Law.

Programming orders in relation to penalty and costs

Having determined that the Practitioner engaged in professional misconduct and engaged in unprofessional conduct, the Tribunal must now determine the appropriate disciplinary consequence of that conduct and the Board's application for a costs order.
We will also make the following programming orders in relation to penalty and costs:
The Tribunal orders:
1.By 15 June 2023 the applicant must file with the Tribunal and give to the respondent its written submissions in relation to penalty and costs together with a schedule of the costs it seeks and the basis on which those costs are claimed.
2.By 13 July 2023 the respondent must file with the Tribunal and give to the applicant her written submissions in relation to penalty and costs and any evidence, including witness statements and character references, on which she relies.
3.By 20 July 2023 the applicant must file with the Tribunal and give to the respondent a written statement of the names of the authors of any witness statements or character references filed by the respondent in accordance with the preceding order who are required for cross-examination.
4.The matter is listed for a directions hearing at 2.15 pm on 27 July 2023 at 565 Hay Street, Perth, Western Australia to list the issues of penalty and costs for determination either on the documents or at a hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR D AITKEN, SENIOR MEMBER

18 MAY 2023

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION: NURSING AND MIDWIFERY BOARD OF AUSTRALIA and BURWOOD [2023] WASAT 36 (S)
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   1 DECEMBER 2023
FILE NO/S:   VR 54 of 2021
BETWEEN:   NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
SELVARANI BURWOOD
Respondent

Catchwords:

Vocational regulation - Health practitioner - Registered nurse (Division 1) - Determination of appropriate penalty arising from findings of professional misconduct and unprofessional conduct - Global penalty - General deterrence - Costs

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 378
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 5, s 75(1), s 130(1), s 195, s 196(2), s 196(4), Part 6, Div 5
Legal Profession (State Administrative Tribunal) Determination 2020 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(1), s 87(2)

Result:

Practitioner reprimanded
Practitioner's registration cancelled
Practitioner disqualified from applying for registration as a registered health practitioner for 12 months
Practitioner to pay a contribution to the applicant's costs

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	N/A

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

Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334
Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)
Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20
Dental Board of Australia and Nairn [2022] WASAT 86
Health Ombudsman v Le Garde [2019] QCAT 260
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Medical Board of Australia and Costley [2013] WASAT 2
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA)
Mustac v Medical Board of Western Australia [2004] WASCA 156
Nadkarni v Medical Board of Australia [2022] WASCA 109
Nursing and Midwifery Board of Australia and Burwood [2023] WASAT 36
Nursing and Midwifery Board of Australia and Ward [2022] WASAT 104
Nursing and Midwifery Board of Australia v Alvarez [2022] VCAT 444
Nursing and Midwifery Board of Australia v Barnes [2021] VCAT 964
Nursing and Midwifery Board of Australia v Bartlett [2013] VCAT 2014
Nursing and Midwifery Board of Australia v Debra-Lea Mary Curnow [2018] SAHPT 1
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Psychology Board of Australia and Fawcett [2023] WASAT 86
Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S)
Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24
Singh v Medical Board of Australia [2019] WASCA 51

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and outcome

In Nursing and Midwifery Board of Australia and Burwood [2023] WASAT 36 (Misconduct Decision) the Tribunal found that, for the purposes of the Health Practitioner Regulation National Law (National Law) set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA), the respondent, Ms Selvarani Burwood (Practitioner) had behaved in a way that constituted:
(1)professional misconduct in that on 4 March 2020 and on 6 March 2020 she stole items of personal protective equipment (PPE) from a hospital, she was charged, and she pleaded guilty and was convicted of three counts of stealing contrary to s 378 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code) (WA), with the stolen items being 13 face masks in the first charge, 12 face masks in the second charge and a handful of disposable gloves and 10 alcohol wipes in the third charge (first finding);
(2)professional misconduct in that on 3 March 2020, 4 March 2020 and on 6 March 2020 she used her position of authority as Clinical Nurse Facilitator to pressure, manipulate and/or coerce three student nurses (Students) who were under her supervision on clinical practice placements to assist her in stealing from the hospital the items of PPE set out in the first finding (second finding); and
(3)unprofessional conduct in that having been charged with the offences set out in the first finding, she failed to provide the applicant Board with written notice of the charges within seven days of being charged, in contravention of s 130(1) of the National Law (third finding).
In these reasons we deal with the question of the penalty which should be imposed on the Practitioner in light of those findings, and with the question of costs. These reasons should be read in conjunction with the Misconduct Decision. The same abbreviations will be used.
The Nursing and Midwifery Board of Australia (Board) submits that the Practitioner should be reprimanded, her registration should be cancelled, she should be disqualified from applying for registration for a period of at least 12 months and that she should be ordered to pay a contribution of at least $10,000 towards the Board's costs.
The Practitioner has not made any submission as to what she says the appropriate penalty or award of costs should be but asks for leniency due to her mitigating circumstances at the time of the conduct.
For the reasons which follow, we have decided that a global penalty should be imposed in respect of the professional misconduct and unprofessional conduct referred to above. Having carefully considered the submissions made by both the Board and the Practitioner, we have decided that the appropriate penalty is that the Practitioner be reprimanded, that her registration be cancelled and that she be disqualified from applying for registration for a period of 12 months. We have also decided that the Practitioner should be ordered to pay a contribution of $10,000 towards the Board's costs.

Issues of penalty and costs to be determined on the documents

When the Tribunal delivered the Misconduct Decision Senior Member Aitken made orders:
•First, for the Board to provide to the Tribunal and the Practitioner written submissions in relation to penalty and costs, together with a schedule of the costs sought;
•Secondly, for the Practitioner to provide to the Tribunal and the Board her written submissions in response and any evidence she wished to rely upon, including witness statements and character references; and
•Thirdly, for the Board to provide to the Tribunal and the Practitioner a statement of the names of the authors of witness statements and character references provided by the Practitioner who the Board wished to cross-examine.
The Board provided its submissions and schedule of costs sought.
The Practitioner provided her submissions and the following documents:
•Certificates of excellence for 2017 and 2019 awarded to the Practitioner by Murdoch University regarding her role as a clinical nurse facilitator;
•Copies of thank you cards from student nurses to the Practitioner;
•Four character references which were provided to the Magistrates Court before the Practitioner was sentenced for the three stealing charges to which she pleaded guilty on 22 June 2020; and
•Medical reports and test results in respect of the Practitioner.
The Board informed the Tribunal and the Practitioner that it did not wish to cross-examine the persons who had given the character references and that it wished to provide submissions in reply to the Practitioner's submissions.
The Board provided its submissions in reply and copies of screen shots of the Practitioner's applications for renewal of her registration in 2020, 2021 and 2022.
The Practitioner then provided a response to the Board's submissions in reply.
A directions hearing was held, which was attended by counsel for the Board, but which the Practitioner did not attend due to a medical condition. At the directions hearing Senior Member Aitken granted leave to the Board and the Practitioner to provide their further submissions (referred to in [10] and [11] above) and ordered that the issues of penalty and costs are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
We have carefully considered the submissions and documents provided to the Tribunal by the Board and the Practitioner.

The power for the Tribunal to impose a penalty under the National Law

Having decided in the Misconduct Decision that the Practitioner behaved in a way that constitutes professional misconduct and unprofessional conduct, under s 196(2) of the National Law the Tribunal may decide to do one or more of the following:
(a)caution or reprimand the Practitioner;
(b)impose a condition on the Practitioner's registration;
(c)require the Practitioner to pay a fine of not more than $30,000 to the Board;
(d)suspend the Practitioner's registration for a specified period; and
(e)cancel the Practitioner's registration.
Under s 196(4) of the National Law, if the Tribunal decides to cancel the Practitioner's registration it may also decide to disqualify her from applying for registration as a registered health practitioner for a specified period.

Principles in relation to the imposition of a penalty under the National Law

The principles which apply to the imposition of a penalty under the National Law were set out in Psychology Board of Australia and Fawcett [2023] WASAT 86 (Fawcett) at [52] – [56] as follows:
52The general legal principles which apply to penalties in vocational disciplinary matters are well settled.  The Tribunal's discussion of those principles, in the context of proceedings against a medical practitioner, in Medical Board of Australia and Singh[10] was approved by the Court of Appeal in Singh v Medical Board of Australia.[11] Those principles were recently restated by the Court of Appeal in Nadkarni v Medical Board of Australia.[12]Those principles apply equally in the case of psychologists, who are also subject to the National Law.
[10] Medical Board of Australia and Singh [2017] WASAT 33 (S) (Singh 2017).
[11] Singh v Medical Board of Australia [2019] WASCA 51 (Singh 2019).
[12] Nadkarni v Medical Board of Australia [2022] WASCA 109 (Nadkarni).
53In Dental Board of Australia and Nairn[13] those principles were summarised as follows.
[13] Dental Board of Australia and Nairn [2022] WASAT 86 (Nairn) at [13] – [16].
First, the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law.  The public is protected by the making of orders which will prevent a person who is unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards.[14]
[14] Singh 2019 at [30]; Panegyres v Medical Board of Australia [2020] WASCA 58 at [6]; Nadkarni at [66].
Secondly, the protection of the public has various dimensions.  They may include an immediate need to protect the public from the practitioner's conduct. In addition, there may be a need to bring home to the practitioner the seriousness of their conduct, and a need to deter the practitioner from future breaches.  An order directed to the latter aspects of the protection of the public involves personal deterrence. The protection of the public may also require an order which emphasises to other members of the profession, or which reassures the public, that a certain type of conduct is not acceptable professional conduct.  An order of that kind may thus be regarded as akin to 'general deterrence'.[15]
[15] Singh 2019 at [32]; see also Mustac v Medical Board of Western Australia [2004] WASCA 156 at [126]; see also Nadkarni at [66].
Thirdly, as the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations.[16]
[16] Singh 2019 at [33].
Fourthly, of particular significance in any given case will be whether the findings of misconduct reveal that the practitioner is unfit to practise their profession. Where a health practitioner is 'permanently or indefinitely unfit to practise, cancellation of registration rather than suspension will (at least ordinarily) be the appropriate response'.[17] Permanent or indefinite unfitness to practice (at least ordinarily) will be a sufficient basis for cancelling the practitioner's registration, but it is not a necessary condition for cancellation.  That is because the National Law does not elevate any consideration relevant to the power to cancel registration to the status of a precondition to that power.[18]
54The Tribunal in Nairn went on to say:[19]
The Tribunal also has the power, under s 196(4)(a) of the National Law, to make an order specifying a period within which a person is disqualified from applying for registration as a registered health practitioner. That power is to be exercised for the protective purposes that apply to the disciplinary proceeding generally. That being the case, all of the various aspects of the protection of the public (discussed above) will be relevant to whether the Tribunal orders a period of disqualification, and, if so, what that period should be.[20]
Furthermore, fixing a period within which re-registration may not be sought indicates the minimum period within which the Tribunal considers the practitioner should not be able to practise their profession.  But it also permits the possibility that an application for re‑registration after that period will be considered.  In determining what order to make, the Tribunal will consider all aspects of the possible orders available to it.[21]  It is a matter for the Tribunal to determine the weight to be given to the various considerations relevant to the exercise of the power to impose a disqualification period.[22]
In contrast, an order for the suspension of a practitioner must be based upon a view that at the end of the period of suspension, the practitioner will be fit to practise.[23]
Fifthly, the Tribunal is able to impose a 'global' penalty in the alternative to individual penalties for each instance of … conduct.  That may be appropriate in circumstances where the facts of the case are inextricably woven together or where the penalty for a less serious transgression may be subsumed by the penalty for a more serious transgression.[24]
Sixthly, the appropriate sanction is to be considered at the time of the imposition of the sanction, and not by reference to the date of the [conduct].[25]
Seventhly, in determining the appropriate penalty, the Tribunal engages in the exercise of a discretion. In order to reach a decision, the Tribunal must evaluate and weigh a broad range of factors, including the purpose of disciplinary proceedings, the relevant facts, the various penalty options available, sanctions or penalties imposed in previous cases bearing some similar features to the case in question, personal and general deterrence, the practitioner's personal circumstances and antecedents, and any mitigating factors.[26]
55In Medical Board of Australia v Singh,[27] the Tribunal identified twelve possible considerations which may be relevant in determining an appropriate penalty. While those considerations are not exhaustive, they provide a useful framework for considering the circumstances of this case relevant to penalty.
56All of these matters are to be considered in the context of the Tribunal's findings as to liability; that is, its findings as to the seriousness of the practitioner's conduct and the practitioner's explanation for it.[28]
[17] Singh 2019 at [34], [37].
[18] Singh 2019 at [38], referring to Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 (Chen) at [17] (Basten JA, Leeming and Payne JJA agreeing).
[19] Nairn at [17] – [22].
[20] Singh 2019 at [40], [43].
[21] Chen at [22] (Basten JA, Leeming and Payne JJA agreeing).
[22] Singh 2019 at [45].
[23] Nadkarni at [68].
[24] Singh 2017 at [29]; Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20 at [9].
[25] Singh 2017 at [24].
[26] Nadkarni at [69].
[27] Singh 2017 at [30].
[28] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [30(1)] – [30(2)].
Those principles apply equally to nurses, who are also subject to the National Law.

Considerations relevant to the imposition of the penalty in this case

We will consider the twelve factors identified in Singh 2017, having regard to the facts in this case.

First factor: Is there a need to protect the public against further misconduct by the Practitioner (personal deterrence)?

In our view, it is not likely that the Practitioner will be involved in future misconduct and there is no need for personal deterrence to protect the public. We accept her submission that there was intense media attention on her when she was charged with stealing the PPE. The Practitioner pleaded guilty to the stealing charges and she was fined $1,000 with the Magistrate declining to make a spent conviction order.[29] We believe that the ordeal she went through in that regard is likely to deter her from future misconduct.

Second factor: Is there a need to protect the public through general deterrence of other practitioners from similar conduct?

[29] Misconduct Decision at [23] and [24].

We consider that general deterrence of other health practitioners from conduct similar to the Practitioner's professional misconduct is the most significant factor in this case.
Other health practitioners need to be made aware that stealing medical equipment or products from a place of work, such as a hospital is a very serious matter.
Also, a health practitioner who is responsible for the supervision or training of students in their health profession must be expected to always act honestly and ethically and demonstrate trustworthiness and integrity of a very high standard, to assist the students to develop the appropriate attitudes necessary for practise within a clinical environment and to act as a role model for those students.
The penalty imposed on the Practitioner must leave other health practitioners in no doubt that if they engage in conduct similar to that of the Practitioner, they will face a significant penalty.

Third factor: Is there a need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions, even if there is no need to deter the Practitioner from repeating the conduct?

For the reasons given in [21] and [22] above, a significant penalty must be imposed on the Practitioner to reinforce high professional standards and maintain public confidence in the nursing profession by denouncing the Practitioner's transgressions.

Fourth factor: In cases involving misleading conduct, including dishonesty, can the public and fellow practitioners place reliance on the word of the Practitioner?

The theft of the PPE by the Practitioner was dishonest, but for the reasons given in [19] above regarding the first factor, we do not consider this factor to be a significant consideration in this case.

Fifth factor: Has the Practitioner breached any Act, Regulations, Guidelines or Code of Conduct issued by the relevant professional body, and if so, did the Practitioner do so knowingly?

We found in the Misconduct Decision that the Practitioner breached principle 1.2 (Lawful behaviour) and principle 5.1 (Teaching and supervising) of the Code of Conduct for Nurses and, in our view, the Practitioner would have been aware of the requirements of the Code and therefore did so knowingly.[30]

Sixth factor: Did the Practitioner's conduct demonstrate incompetence, and if so, to what level?

[30] Misconduct Decision at [46], [34], [36], [69] and [76].

The Practitioner's conduct does not raise questions as to her competency, in terms of her knowledge and skills, to work as a nurse.

Seventh factor: Was the conduct isolated, such that the Tribunal can be satisfied of the Practitioner's worthiness or reliability for the future?

The Practitioner's misconduct occurred during a period of four days, and in our view, it was isolated and for the reasons given in [19] above, we do not consider this factor to be a significant consideration in this case.

Eighth factor: The Practitioner's disciplinary history

The Practitioner does not have a prior disciplinary history.

Ninth factor: Does the Practitioner understand the error of her ways, and has she shown remorse or insight, or if not, does the Practitioner thereby demonstrate that she poses a risk to the community?

In her submissions the Practitioner denies that she used her position of authority over the Students to manipulate and coerce them into helping her to steal the PPE and says that the Students were willing participants, but that she takes responsibility for their actions.
In her submissions the Practitioner also says that she is truly sorry and remorseful, especially in involving the Students, and that she is sorry for the 'removal' of the PPE when there was a widespread shortage.
The Practitioner appears to have accepted responsibility for the theft of the PPE and appears to be remorseful. However, we are concerned that she denies that she used her position of authority over the Students to manipulate or coerce them to assist her to steal the PPE, which is contrary to the findings we made in the Misconduct Decision. This raises a concern for us as to whether the Practitioner has full insight and remorse for her misconduct. However, for the reasons we have given in [19] above we do not consider her to pose a risk to the community.

Tenth factor: Does the Practitioner have any special skills which it is desirable to make available to the public notwithstanding the findings as to her misconduct?

There has not been any evidence given to the Tribunal that the Practitioner has any special skills, so this factor is not relevant in this case.

Eleventh factor: The Practitioner's personal circumstances at the time of their conduct and at the time of imposing the penalty (although these are necessarily secondary to the protection of the public)

The Practitioner has given evidence to the Tribunal and the Board regarding her personal circumstances at the time of the misconduct and at the time that she provided her submissions regarding penalty. To maintain her privacy, we will not detail those circumstances. We have taken them into consideration, however, the weight we give them cannot override the fundamental obligation to provide appropriate protection to the public by the penalty we impose for the purpose of general deterrence.

Twelfth factor: Any other matters relevant to the Practitioner's fitness to practise, or which may be regarded as aggravating the conduct or mitigating its seriousness (although these are of less significance given the protective purpose of the Tribunal's jurisdiction)

We do not consider there to be any other matters relevant to the Practitioner's fitness to practice.

Penalties imposed in previous cases

The Board has drawn the Tribunal's attention to several cases which it says are broadly comparable to this case.
In Health Ombudsman v Le Garde [2019] QCAT 260 (Le Garde) a registered nurse was found to have engaged in professional misconduct in that she was convicted of burglary unrelated to her practice as a nurse. The practitioner held non-practicing registration at the time that the matter was dealt with by the Queensland Civil and Administrative Tribunal, which imposed a penalty of a reprimand and suspended her registration for a period of sixth months.
In Nursing and Midwifery Board of Australia v Debra-Lea Mary Curnow [2018] SAHPT 1 (Curnow) a registered nurse was found to have engaged in professional misconduct in that she was convicted of 15 counts of WorkCover fraud. The Health Practitioners Tribunal of South Australia imposed a penalty of a reprimand, a suspension of the practitioner's registration for a period of sixth months and imposed conditions on her registration requiring her to undertake an education course (Apply Legal and Ethical Parameters to Nursing Practice) before the end of the suspension period.
In Nursing and Midwifery Board of Australia v Bartlett [2013] VCAT 2014 (Bartlett) a registered nurse was found to have engaged in professional misconduct in that she was convicted of obtaining property by deception in the amount of $64,394.38 by falsifying timesheets for her work as a nurse. The Victorian Civil and Administrative Tribunal (VCAT) imposed a penalty of a reprimand and cancelled the practitioner's registration with a disqualification period of two years before she could apply for registration.
In Nursing and Midwifery Board of Australia v Barnes [2021] VCAT 964 (Barnes) a registered nurse was found to have engaged in professional misconduct in that she was convicted of stealing approximately $16,000 cash from her employer (an aged care facility). The practitioner was no longer registered as a nurse when the matter came before VCAT (having not renewed her registration). VCAT imposed a penalty of a reprimand and disqualified her from applying for registration for a period of 12 months.
In Nursing and Midwifery Board of Australia v Alvarez [2022] VCAT 444 (Alvarez) a registered nurse who was employed as a nurse educator and course co-ordinator was found to have engaged in professional misconduct in that he was convicted of three counts of asking for, or receiving, a fee or other reward for giving immigration assistance (he not being a registered migration agent) by financially exploiting three vulnerable international students. The practitioner was no longer registered as a nurse when the matter came before VCAT (having surrendered his registration). VCAT imposed a penalty of a reprimand and a disqualification period of two years during which the practitioner could not apply for registration. The practitioner was also prohibited from providing health education services for the same period.

A global penalty is appropriate

We consider that a global penalty is appropriate in relation to our findings of professional misconduct and unprofessional conduct because they are inter-related, and all arose out of the Practitioner's conduct during a four day period. Also, the penalty for the finding of unprofessional conduct will be subsumed by the findings of professional misconduct.

The penalty which we will impose

In the Misconduct Decision at [13] we incorrectly stated that the Practitioner surrendered her registration as a Registered Nurse (Division 1) on 8 June 2021. In fact, the Practitioner has held 'nonpracticing' registration since that date, and she is still registered as a Registered Nurse (Division 1).[31]
[31] Part 6 Div 5 of the National Law provides for a health practitioner to be registered as 'non-practicing'. Section 75(1) of the National Law prohibits a health practitioner who holds non-practicing registration from practising their profession, but they are still a 'registered health practitioner' as defined in s 5 of the National Law.
In the Misconduct Decision we found at [71] that the conduct of the Practitioner in stealing the items of PPE from the hospital on three separate occasions, especially in the context of the shortage of face masks and the concern within the medical community and the community at large about mask shortages and the effect of COVID-19 at the time, is inconsistent with the Practitioner being a fit and proper person to hold registration in the nursing profession.
In the Misconduct Decision we also found at [80] that the improper conduct of the Practitioner concerning the students, set out in [72] of that decision, is inconsistent with the Practitioner being a fit and proper person to hold registration in the nursing profession.
As stated in Nairn, the purpose of this disciplinary proceeding is to protect the public and not to punish the Practitioner in the sense in which punishment is imposed under criminal law. The impact that an appropriate penalty will have on the Practitioner and any personal hardship to the Practitioner are necessarily secondary considerations.[32]
[32] Fawcett at [53], set out in [16] of these reasons.
The two findings we made in the Misconduct Decision of professional misconduct by the Practitioner concerned serious misconduct.
Whilst none of the cases referred to in [37] to [41] above is directly comparable to the present case, we consider that the two types of professional misconduct by the Practitioner in this case (first the stealing of PPE and, secondly using her position of authority to pressure, manipulate and/or coerce the Students to assist her in that stealing) collectively are more serious than the misconduct in the Le Garde and Curnow cases, but not as serious as the misconduct in the Bartlett and Alvarez cases and more comparable to the misconduct in the Barnes case than the other cases.
In our view, taking into account all the factors we have considered in [18] to [35] above and the cases referred to in [48] above, we have come to the conclusion that to protect the public (first by reinforcing high professional standards, secondly to maintain public confidence in the nursing profession by denouncing the Practitioner's transgressions and, thirdly for the general deterrence of other practitioners from similar conduct) it is appropriate that the Practitioner be reprimanded and that the Practitioner's registration be cancelled.
Due to our finding that the Practitioner is currently not a fit and proper person to be registered as a nurse and our concern regarding whether she has full insight and remorse for her misconduct[33] we have decided that the Practitioner should be disqualified from applying for registration for a period of 12 months. This will provide the opportunity for the Practitioner to address her circumstances and apply for registration as a nurse if she can satisfy the Board after the expiry of that period that she is then a fit and proper person to again be registered as a nurse.
[33] See [30] to [32] of these reasons.
We accept that the cancellation of the Practitioner's registration and disqualification period of 12 months will likely cause financial hardship to the Practitioner and her family. However, given the purpose of disciplinary proceedings is the protection of the public, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public.[34]
[34] Singh (S) at [30(11)].

Costs

The Board's schedule of costs sets out legal costs and disbursements of $15,506.55 incurred by the Board. The Board submits that the Tribunal should order the Practitioner to pay a contribution to those costs of at least $10,000.
The principles which apply in relation to costs in vocational disciplinary proceedings were set out in Nursing and Midwifery Board of Australia and Ward [2022] WASAT 104 at [125] – [127] and [130] as follows:
125While ordinarily a costs neutral jurisdiction,[35] the Tribunal retains a discretion to make orders for the payment of costs by a party.[36] The National Law also contemplates that a 'responsible tribunal' may make any costs order it considers appropriate.[37]
126In proceedings commenced by a vocational regulatory body, such as the Board, the Tribunal will ordinarily make an order for the payment of costs where the regulator has been successful in making out its allegations. This is so because regulatory bodies perform their functions in the public interest and with limited resources.[38]
127In Quinlivan v Legal Profession Complaints Committee,[39] the Court of Appeal explained:
In Medical Board of Australia and Roberman [2005] WASAT 91 (S), the Tribunal said that although the award of costs is a matter of discretion to be exercised in the circumstances of each case, where a regulatory body is successful in bringing a complaint of misconduct which justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. In this regard, the Tribunal said [30]:
That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application.
…
130In Chiropractic Board of Australia and Ebtash,[40] the Tribunal set out the applicable principles as to assessment of costs. Such principles include approaching costs assessments in a 'robust and broad-brush approach'[41] in relation to the work undertaken as well as to ensure that costs are reasonable, necessary[42] and not excessive.[43] Importantly, the basis of a costs award is to compensate, not to punish.[44]
[35] SAT Act, s 87(1).
[36] SAT Act, s 87(2).
[37] National Law, s 195.
[38] Motor Vehicle Industry Board and Dawson [2006] WASAT 8; (2006) 41 SR (WA) 343 at [44] - [45].
[39] Quinlivan v Legal Profession Complaints Committee [2012] WASCA 263 (S) at [10] (Pullin JA, Newnes JA, Murphy JA).
[40] Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) at [134] - [137] (Ebtash).
[41] Medical Board of Australia and Costley [2013] WASAT 2 at [66].
[42] Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [48] - [49].
[43] Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].
[44] Ebtash at [135].
For the reason explained in Quinlivan v Legal Profession Complaints Committee, we will make a costs order in favour of the Board.
Having regard to the Board's schedule of costs, we consider that the party-party costs for the work undertaken by the senior practitioners and a restricted practitioner, who became a junior practitioner (for the purposes of the Legal Profession (State Administrative Tribunal) Determination 2020 (WA) are not excessive and appear reasonable. The conduct of the matter involved the preparation, filing and service of the application to commence the proceeding, attendances at four directions hearings, the preparation, filing and service of a book of documents and submissions for the hearing regarding the conduct of the Practitioner, attendance at that hearing and the preparation, filing and service of submissions regarding penalty. The disbursements are the application filing fee and service costs.
The Board seeks an order that the Practitioner to pay a contribution to those costs of at least $10,000. Considering the circumstances of the Practitioner we will fix the amount of the contribution at $10,000 and we will allow a period of 12 months for the Practitioner to pay those costs to the Board and provide that the Board may agree an extension of that time.

Orders

To give effect to the reasons set out above, the Tribunal will make the following orders:
The Tribunal orders:
1.The respondent (Practitioner) is reprimanded pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (National Law) set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) for the conduct described in the orders made by the Tribunal in this proceeding on 18 May 2023.
2.The Practitioner's registration as a Registered Nurse (Division 1) is cancelled pursuant to s 196(2)(e) of the National Law.
3.The Practitioner is disqualified from applying for registration as a registered health practitioner for 12 months from the date of these orders pursuant to s 196(4)(a) of the National Law.
4.The Practitioner is to pay a contribution to the applicant's costs of this proceeding pursuant to s 195 of the National Law or s 87(2) of the State Administrative Tribunal Act 2004 (WA) fixed in the amount of $10,000 within 12 months of the date of these orders, or such further time as agreed with the applicant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR D AITKEN, SENIOR MEMBER

1 DECEMBER 2023