NURSING AND MIDWIFERY BOARD OF AUSTRALIA and M
[2023] WASAT 106
•9 NOVEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION: NURSING AND MIDWIFERY BOARD OF AUSTRALIA and M [2023] WASAT 106
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
MS R BUNNEY, MEMBER
DR B JONES, SESSIONAL MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 9 NOVEMBER 2023
FILE NO/S: VR 15 of 2023
BETWEEN: NURSING AND MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
M
Respondent
Catchwords:
Health Practitioner Regulation National Law (WA) Act 2010 (WA) - Vocational regulation - Disciplinary proceeding - Nurse - Criminal convictions for possession of child exploitation material and producing child exploitation material - Respondent engaged in professional misconduct - Respondent reprimanded - Respondent's registration cancelled, Respondent disqualified from applying for registration for five years - Practice and procedure - Application for non-publication order - Tribunal's power under s 62 of the State Administrative Tribunal Act 2004 (WA) - Whether a non-publication order is necessary - Where the non-publication order sought applies to the Respondent's name, any other identifying information and requires the Respondent to give notice of future employment to Australian Health Practitioner's Regulation Authority upon re-registration
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), Div 3, s 3, s 3(1), s 3(2), s 3(3), s 4, s 5, s 39, s 196(2)(a), s 196(2)(e), s 196(4)(a), s 222, s 223, 223(b), s 224, s 225, s 225(j), s 226, s 227, s 227(a)(i), s 227(a)(ii), s 227(a)(iii),
State Administrative Tribunal Act 2004 (WA), s 61(4), s 62, s 62(3)
Working with Children (Criminal Record-Checking) Act 2004 (WA)
Result:
Practitioner found to have engaged in professional misconduct
Practitioner reprimanded
Practitioner's registration as a Nurse and a Midwife cancelled
Practitioner disqualified from applying for registration for a period of 5 years
Non-publication order made
Practitioner ordered to pay $3,000 as costs contribution towards Applicant's costs
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Clayton Utz |
| Respondent | : | Belinda Burke Legal |
Case(s) referred to in decision(s):
Australian Securities and Investments Commission Re; Richstar Enterprises Pty Ltd ACT 09 9071 968 v Carey (No 17) [2007] FCA 1395
Health Ombudsman v Creagh-Scott [2019] QCAT 69
Health Ombudsman v Mak [2019] QCAT 24
Medical Board of Australia v Black (Review & Regulation) [2016] VCAT 892
Medical Board of Australia v Voon [2018] VR 155
Nursing and Midwifery Board of Australia and Ward [2022] WASAT 104
Nursing and Midwifery Board of Australia v Buckley [2010] QCAT 392
Nursing and Midwifery Board of Australia v Omant [2015] VCAT 1529
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and outcome
This matter comes before us to determine whether it is appropriate to make orders disposing of the disciplinary proceedings brought by the Applicant against the Respondent about which the parties have reached an agreement, the terms of which were set out in a minute of proposed orders dated 28 September 2023.
These reasons deal with findings to be made in respect of M's conduct and the penalty to be imposed as a result.
We have found that the conduct in which the parties agreed M engaged, which is set out in Annexure A to these reasons in a document headed 'Statement of Agreed Facts', is conduct which is readily described as professional misconduct.
We have concluded that the appropriate penalty for that conduct is as follows:
1)M be reprimanded;
2)M's registration as a registered nurse and midwife are cancelled;
3)M be disqualified from applying for registration as a health practitioner for a period of five (5) years.
We also find that it is appropriate that M be ordered to pay a contribution to the Applicant's costs of the proceeding in the sum of $3,000.
These reasons also deal with the parties application for a non‑publication order that would, subject to some exceptions, prohibit the publication of the Respondent's name and any information that might enable the Respondent to be identified. We have determined that it is in the interests of justice to make a non-publication order in this case. However, we have not made it in terms sought by the parties. We have explained why in these reasons.
As a result of making the non-publication orders, the Respondent is referred to in these reasons and in orders made consequent upon these reasons by the initial 'M'.
The Tribunal's role when parties to disciplinary proceedings reach agreement
In this case, the parties have reached agreement as to how the disciplinary proceedings should be resolved. Their minute of proposed consent orders is dated 28 September 2023.
However, even where the parties agree on the terms on which they consider the disciplinary proceedings should be resolved the State Administrative Tribunal (Tribunal) must form its own view as to whether those orders are appropriate in the circumstances.[1]
[1] Australian Securities and Investments Commission Re; Richstar Enterprises Pty Ltd ACT 09 9071 968 v Carey(No 17) [2007] FCA 1395 at [4] (French J).
M, the conduct and its characterisation
We make findings of fact in relation to M's conduct in accordance with the facts set out in the parties Statement of Agreed Facts which is Annexure A to these reasons for decision.
In short summary, at all relevant times M held general registration as a midwife and registered nurse.
On 22 March 2022, M pleaded guilty to, and was convicted of, the following two offences:
(a)producing child exploitation material in a written manner; and
(b)possessing child exploitation material, namely images and videos.
Greater detail about that offending is set out in Annexure A. We do not need to repeat the details.
The offending was a breach of the Criminal Code. The conduct also amounted to a breach of Clause 1.2 of the Code of Conduct for Nurses which applied at the relevant time which requires that nurses practice honestly and ethically and not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession.[2]
[2] The Code of Conduct was developed and approved by the Applicant under s 39 of the National Law.
Having regard to those matters, we have no difficulty in finding that M's conduct justifies a finding that the practitioner engaged in professional misconduct as that expression is defined in s 5 of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law).
Penalty to be imposed
We also accept, as the parties have agreed, that it is appropriate that M be reprimanded for that professional misconduct. The making of an order reprimanding a practitioner is provided for in s 196(2)(a) of the National Law.
We also find that M's conduct warrants the cancellation of the practitioner's registration. Cancellation of a practitioner's registration is provided for in s 196(2)(e) of the National Law.
The Tribunal is also empowered, under s 196(4)(a) of the National Law, to disqualify the person from applying for registration as a registered health practitioner for a specified period where it cancels the practitioner's registration.
The parties have agreed that a period of disqualification of five (5) years is appropriate in this case. We agree.
We have reached that conclusion having regard to the following matters:
a)the fact that the purpose of disciplinary penalties is the protection of the public rather than punishment of the particular practitioner;
b)the fact that protection of the public is achieved through both personal and general deterrence (in appropriate cases);
c)the cases to which we have been referred, that involved conduct generally similar to that involved this case,[3] although we acknowledge that no two cases are exactly alike and there is no tariff to be applied;
d)M's personal circumstances before and after the misconduct occurred, and the changes made to those personal circumstances subsequent to the misconduct;
e)the remorse and insight shown by M;
f)the efforts made by M towards rehabilitation through reflection and attendance at counselling over a significant period of time, such that it is accepted that M represents a low risk of engaging in further conduct of this kind;
g)the fact that M has not worked as a nurse or midwife since 20 August 2021 and that M's registration has been suspended since 15 September 2021; and
h)the fact that after the period of disqualification imposed has expired M will have to satisfy the Board that it is appropriate that they be re-registered. That is, M's entitlement to practice will not be automatically reinstated after the period of disqualification is served.
[3] Those cases were: Nursing and Midwifery Board of Australia and Ward [2022] WASAT 104; Health Ombudsman v Creagh-Scott [2019] QCAT 69; Health Ombudsman v Mak [2019] QCAT 24; Medical Board of Australia v Voon [2018] VR 155; Medical Board of Australia v Black (Review & Regulation) [2016] VCAT 892; Nursing and Midwifery Board of Australia v Omant [2015] VCAT 1529 and Nursing and Midwifery Board of Australia v Buckley [2010] QCAT 392.
Costs
The Parties have agreed that the Tribunal should order that M pay a contribution of $3,000 towards the Applicants costs. The Tribunal has a discretion to award costs in these matters.[4] It is quite usual for the discretion to be exercised so as to award costs in favour of a disciplinary body where it has been successful in proceedings brought against a health professional.[5]
[4] S 88(2) SAT Act.
[5] Medical Board of Australia and McCarthy [2020] WASAT 12 (S) at [89] and [90].
In this case, we consider that an order that M pay a contribution to the Applicant's costs in the amount sought (which in our view is a modest amount) is appropriate particularly in light of the fact that M has consented to the making of that order.
Non-publication orders
We were satisfied, based on the evidence, that doing so is authorised under s 62(3) of the SAT Act because it is in the interests of justice, which itself is a circumstance set out in s 61(4) in which the Tribunal may make a non-publication order under s 62(3). Specifically, we regard the order to be necessary to prevent the children involved from being identified.
The parties have agreed that the Tribunal should make a non‑publication order that would prevent the publication of M's name and of any information that may enable M to be identified.
The parties have proposed that we make the non-publication order subject to certain exceptions. They seek an order that the non‑publication order would not prevent the Applicant from disclosing:
1)M's name; or
2)the Tribunal's final orders; or
3)Annexure A to the final orders (i.e. the Statement of Agreed Facts)
in the following circumstances:
a)as required to fulfil its operations, duties and obligations under the National Law; or
b)to any health service (as that term is defined in s 5 of the National Law) who at the time of the disclosure either employs or contracts M.
The parties agreed that we should also make an order that there be liberty to apply to vary the non-publication orders and any of the specified exceptions to it.
The parties have also agreed that in order to permit the Applicant to disclose to a health service with which M accepts employment, the details which would otherwise not be permitted to be disclosed, the Applicant will need to know that M has accepted employment or a contract with a health service. Accordingly, they have agreed that as part of the proposed non-publication orders, that we should also make an order requiring M to give written notice to the Australian Health Practitioner's Regulation Authority of the name and contact details of the health service provider within two (2) working days of accepting employment or a contract with a health service provider.
The exceptions were said to be needed for three purposes. We will deal with each in turn.
First, the Applicant submitted that when the practitioner's registration is cancelled the practitioner will be required by s 222(4) of the National Law to include their name in a register of health practitioners whose registration has been cancelled (the register of cancelled practitioners). The Applicant submits that in the absence of the non-publication order the Applicant would also be required by s 227 of the National Law to include in the register of cancelled practitioners, the grounds on which the practitioner's registration was cancelled and details of the conduct that formed the basis of the Tribunal's decision. We were told that that is usually achieved by including a link to the Tribunal's decision in the register of cancelled practitioners.
In order to deal with that submission we have set out in full the provisions of the National Law which deal with the registers.
Division 3 — Registers in relation to registered health practitioner
222.Public national registers
(1)A public national register, with the name listed in column 1 of the following Table, is to be kept for each health profession.
(2)A public national register for a health profession is to include the names of all health practitioners (other than specialist health practitioners) currently registered in the profession.
(3)If divisions are listed beside the public national register in column 2 of the Table, the register is to be kept in a way that ensures it includes those divisions.
(4)In addition, a public national register for a health profession is to include -
(a)the names of all health practitioners (other than specialist health practitioners) whose registration has been cancelled by an adjudication body; and
(b)the names of all persons (other than specialist health practitioners or persons who were previously specialist health practitioners) subject to a prohibition order.
(5)A public national register required to be kept under this section is to be kept by the National Board prescribed by the regulations for the register, in conjunction with the National Agency.
Table — Public national registers
| Name of public national register | Divisions of public national register |
| Register of Aboriginal and Torres Strait Islander Health Practitioners | |
| Register of Chinese Medicine Practitioners | Acupuncturists, Chinese herbal medicine practitioners, Chinese herbal dispensers |
| Register of Chiropractors | |
| Register of Dental Practitioners | Dentists, Dental therapists, Dental hygienists, Dental prosthetists, Oral health therapists |
| Register of Medical Practitioners | |
| Register of Medical Radiation Practitioners | Diagnostic radiographers, Nuclear medicine technologists, Radiation therapists |
| Register of Midwives | |
| Register of Nurses | Registered nurses (Division 1), Enrolled nurses (Division 2) |
| Register of Occupational Therapists | |
| Register of Optometrists | |
| Register of Osteopaths | |
| Register of Paramedics | |
| Register of Pharmacists | |
| Register of Physiotherapists | |
| Register of Podiatrists | |
| Register of Psychologists |
223.Specialists registers
The National Board established for a health profession for which specialist recognition operates under this Law must, in conjunction with the National Agency, keep -
(a)a public national specialists register that includes the names of all specialist health practitioners currently registered in a health profession for which the Board is established; and
(b)a public national register that includes the names of all -
(i) specialist health practitioners whose registration has been cancelled by an adjudication body; and
(ii) persons who are subject to a prohibition order.
224.Way registers are to be kept
Subject to this Division, a register a National Board is required to keep under this Division must be kept -
(a)in a way that ensures it is up-to-date and accurate; and
(b)otherwise in the way the National Agency considers appropriate.
225.Information to be recorded in National Register
A National Register or Specialists Register must include the following information for each registered health practitioner whose name is included in the register -
(a)the practitioner's sex;
(b)the suburb and postcode of the practitioner's principal place of practice;
(c)the registration number or code given to the practitioner by the National Board;
(d)the date on which the practitioner was first registered in the health profession in Australia, whether under this Law or a corresponding prior Act;
(e)the date on which the practitioner's registration expires;
(f)the type of registration held by the practitioner;
(g)if the register includes divisions, the division in which the practitioner is registered;
(h)if the practitioner holds specialist registration, the recognised specialty in which the practitioner is registered;
(i)if the practitioner holds limited registration, the purpose for which the practitioner is registered;
(j)if the practitioner has been reprimanded, the fact that the practitioner has been reprimanded;
(k)if a condition has been imposed on the practitioner's registration or the National Board has entered into an undertaking with the practitioner -
(i)if section 226(1) applies, the fact that a condition has been imposed or an undertaking accepted; or
(ii)otherwise, details of the condition or undertaking;
(l)if the practitioner's registration is suspended, the fact that the practitioner's registration has been suspended and, if the suspension is for a specified period, the period during which the suspension applies;
(m)if the practitioner's registration has been endorsed, details of the endorsement;
(n)details of any qualifications relied on by the practitioner to obtain registration or to have the practitioner's registration endorsed;
(o)if the practitioner has advised the National Board the practitioner fluently speaks a language other than English, details of the other language spoken;
(p)any other information the National Board considers appropriate.
226.National Board may decide not to include or to remove certain information in register
(1)A National Board may decide that a condition imposed on a registered health practitioner's registration, or the details of an undertaking accepted from a registered health practitioner, because the practitioner has an impairment is not to be recorded in a National Register or Specialists Register in which the practitioner's name is included if -
(a)it is necessary to protect the practitioner's privacy; and
(b)there is no overriding public interest for the condition or the details of the undertaking to be recorded.
(2)A National Board may decide that information relating to a registered health practitioner is not to be recorded in a National Register or Specialists Register in which the practitioner's name is included if -
(a)the Msks the Board not to include the information in the register; and
(b)the Board reasonably believes the inclusion of the information in the register would present a serious risk to the health or safety of the practitioner.
(3)A National Board may decide to remove information that a registered health practitioner has been reprimanded from a National Register or Specialists Register in which the practitioner's name is included if it considers it is no longer necessary or appropriate for the information to be recorded on the Register.
227.Register about former registered health practitioners
A register kept by a National Board under section 222 or 223(b) must include the following -
(a)for each health practitioner whose registration was cancelled by an adjudication body -
(i)the fact the practitioner's registration was cancelled by an adjudication body; and
(ii)the grounds on which the practitioner's registration was cancelled; and
(iii)if the adjudication body's hearing was open to the public, details of the conduct that formed the basis of the adjudication;
(b)for each person subject to a prohibition order, a copy of the order.
The Applicant will, therefore, be required to note on the register the fact that M has been reprimanded: National Law s 225(j).
The Applicant will also be required to note in the register that M's registration has been cancelled by order of the Tribunal: s 227(a)(i). The Applicant will also be required to note, on the register the ground upon which the registration was cancelled: s 227(a)(ii).
Section 227(a)(iii) requires the Applicant to place on the register details of the conduct that formed the basis of the adjudication by the Tribunal if adjudication occurred at a hearing that was open to the public. In this case, the findings as to M's conduct and the disciplinary penalty to be imposed as a consequence of that conduct has been determined on the documents. It might be, therefore, that 227(a)(iii) does not operate to require the Applicant to place on the Register details of the conduct that formed the basis for the findings of professional misconduct. We do not need to decide that question because, while it is understandably convenient to identify the conduct by placing on the register a link to the decision of the Tribunal, that is not a process mandated under the National Law. In our view, it would be possible for the Applicant to comply with the requirement to identify the details of the conduct in a way which meets the requirements of s 227(a)(iii) but which does not reveal the identity of any of the children involved. For example, it might be possible to provide some summary of the facts that provides sufficient detail but does not identify the children.
Having said that, we found it was appropriate that the non-publication order not prevent the Applicant from disclosing information that might identify M where that disclosure is necessary to enable the Applicant to fulfill its obligations under the National Law.
Secondly, the Applicant submits that M may be able to obtain employment of some kind in a health service even without registration. We assume, by that submission, that the Applicant means in employment in some position where registration is unnecessary (perhaps in an administrative position in a health service). The Applicant submits that in such a circumstance, the protection of the public may dictate that information which it would not otherwise be able to reveal (because of the non-publication order) ought be made known by it to the relevant health service so that the health service can determine whether M's continued employment is appropriate.
In our view, the making of an exception to the non-publication order for that purpose was not appropriate.
The objectives and guiding principles of the National Law are set out in s 3 of the National Law. Section 3(1) provides that the object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners and (in summary) students undertaking study and training in health professions. Section 3(2) provides that the objectives of the national registration and accreditation scheme are:
(a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in an ethical manner are registered; and
(b)to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practice in more than one participating jurisdiction; and
(c)to facilitate the provision of high quality education and training of health practitioners; and
(d)to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
(e)to facilitate access to services provided by health practitioners in accordance with the public interest; and
(f)to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
Section 3(3) of the National Law provides that the guiding principles of the national registration and accreditation scheme are:
(a)that the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(b)fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely consistent with best practice principles.
Section 4 of the National Law provides that an entity that has functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3.
In our view, when regard is had to s 3 and the remainder of the National Law, it is apparent that the Applicant's functions are all connected with the regulation of health practitioners and ensuring that only registered practitioners work in the regulated health professions. There is nothing in the National Law that suggests that the Applicant has any role in informing a health service that one of its employees has had their registration in a health profession cancelled and of the details of the conduct that resulted in the cancellation of their registration where the employee is employed in a role that does not require registration. A prudent health service would, presumably, consider whether an individual is suitable for employment in areas that do not require registration in a health profession by undertaking a criminal history check and to ascertain whether a prospective employee has a 'working with children check' pursuant to the Working with Children (Criminal Record Checking) Act 2004 (WA), where such a 'check' is necessary.
It follows, from that conclusion, that we also find that making an exception to the nonpublication orders for the second purpose identified by the Applicant would not be appropriate and we decline to make an exception to the non-publication order to allow for publication for that purpose.
Thirdly, the Applicant submitted that if M is ultimately re-registered in a health profession and obtains employment in a health service it may be appropriate (depending on the place where the practitioner is employed and the persons with whom they may come in contact through that employment) for the Applicant to provide details of the nature of M's misconduct to the health service. The Applicant says, by way of example, that if M comes to be re-registered and obtains employment in a paediatric ward, it would be appropriate for the employer to know the basis upon which the Tribunal's orders were made.
We do not accept that submission. Rather, we conclude that it must follow that if M is registered without conditions after the disqualification period comes to an end, that will be because the registering authority has determined that M is person who is suitably trained and qualified to practice in a competent and ethical manner. If that is the case, then we can see no justification for the Applicant to inform M's employers of the nature of M's prior misconduct. If M is ever assessed as meeting the threshold requirements for reregistration, then it does not appear to us that it is for the Applicant to undermine that assessment by informing employees of the facts of the misconduct when we have determined that the making of the non-publication order is in the interests of justice.
In any event, we anticipate that a prudent health service which is seeking to employ or contract M to work as a registered nurse and midwife will conduct its own criminal history screening and make an assessment of a candidates suitability for employment in the knowledge of M's convictions. Additionally, we anticipate that a health service will also require M to have a 'working with children check' where it is appropriate.
For those reasons, we decline to make the non-publication order subject to the exceptions agreed by the parties.
Further, there were also two reasons why we did not make the order which had been proposed by consent that would have required M to notify the Applicant of any future employment in a health service within two (2) days of being employed or contracted by a health service.
First, in light of the fact that we did not consider that the orders providing for the exceptions to the non-publication order were necessary (other than that which we found was necessary to allow the Applicant to meet its obligations under the National Law), the requirement to give notice of future employment became unnecessary.
Secondly, we did not consider that we had authority, either under the National Law or the SAT Act, to impose such a requirement as part of any non-publication order made pursuant to s 62 of the SAT Act. The Tribunal's power in s 62 of the SAT Act is confined to ordering that anything thing to which the section applies is not be published except in the manner and to the persons, if any, specified by the Tribunal.
We are prepared to, and will, make an order that the parties have liberty to apply to vary the non-publication orders.
As a consequence of our findings, the Tribunal makes the following orders.
Orders
The Tribunal orders:
1.Pursuant to s 62(1)(c) and s (62)(3) of the State Administrative Tribunal Act 2004 (WA) the Respondent's name and any information that might enable the Respondent to be identified, is not to be published other than where such publication is required to permit the Applicant to comply with its obligations under the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).
2.The Respondent has engaged in professional misconduct as defined in s 5 of the National Law.
3.The Respondent is reprimanded pursuant to s 196(2)(a) of the National Law.
4.The Respondent's registration as a registered nurse and a midwife are cancelled pursuant to s 196(2)(e) of the National Law.
5.The Respondent is disqualified from applying for registration as a health practitioner as defined in s 5 of the National Law for a period of 5 years pursuant to s 196(4)(a) of the National Law.
6.The Respondent is to pay a contribution of $3,000 to the Applicants costs.
7.The parties have liberty to apply to vary order 1.
Annexure A - Statement of Agreed Facts
The parties have agreed the following relevant facts:
The Applicant
At all material times, the Applicant:
a)was established pursuant to section 31 of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law); and
b)has the functions referred to in section 35 of the Schedule to the National Law, including the referral of matters concerning registered health practitioners to responsible tribunals in participating jurisdictions.
The Applicant developed and approved the Code of Conduct for Nurses (Code of Conduct) under section 39 of the Schedule to the National Law. The Code of Conduct sets out the legal requirements, professional behaviour and conduct expectations for nurses in all practice settings in Australia since 1 March 2018. The Code of Conduct is written in recognition that nursing practice is not restricted to the provision of direct clinical care.
The Code of Conduct includes Clause 1.2: Nurses practice 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 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 Respondent
Except as detailed at paragraph 10 below, at all material times, the Respondent:
a)held general registration as a midwife and registered nurse under the National Law; and
b)practised as a registered nurse and midwife at a hospital in Perth.
Conduct
On 19 August 2021, the WA Police executed a search warrant at the Respondent's home.
Upon inspection of the Respondent's phone, the WA Police identified five child exploitation material videos, comprising:
a)one Category 1 (no sexual activity) child exploitation material video;
b)three Category 2 (solo/sex act between children) child exploitation material video; and
c)one Category 3 (non-penetrative adult/child) child exploitation material video.1
1 According to the Australian Categorisation Scheme for Child Exploitation Material as used by the Western Australia Police Force and accepted by the Judge in sentencing the Respondent.
On 19 August 2021, the Respondent was charged with one count of Possession of Child Exploitation Material under s 220 of the Criminal Code (WA) (first charge).
Upon further inspection of the Respondent's phone, the WA Police identified text messages showing that Respondent and her boyfriend between 30 July 2021 and 7 August 2021 produced written material likely to offend a reasonable person.
Particulars
1)WA Police identified that the Respondent sent:
a)four clothed photographs of herself with a child known to the Respondent, to her boyfriend; and
b)a video of the Respondent's children and a child known to the Respondent, dancing on a table.
2)WA Police identified written conversations between the Respondent and her boyfriend in which they describe how they were going to drug and sexually abuse a child known to the Respondent.
On 6 September 2021, the Respondent was charged with one count of producing child exploitation material under s 218 of the Criminal Code (WA) (second charge).
On 15 September 2021, the Respondent's registration as a midwife and registered nurse was suspended pursuant to s 156 of the National Law. It has remained suspended ever since.
On 22 March 2022, in the District Court of Western Australia, the Respondent was convicted of the first and second charges, and was sentenced to:
a)6 months' imprisonment suspended for 12 months on the first charge; and
b)9 months' imprisonment suspended for 12 months on the second charge.
Factors in Mitigation
The Respondent submits, and the Applicant accepts, the following matters in mitigation:
a)when sentencing the Respondent, the sentencing Judge recognised that the Respondent pled guilty to the criminal charges at the first reasonable opportunity; and
b)the Respondent ceased practising as a nurse and midwife as soon as she was arrested; and
c)the Respondent fully co-operated with the Applicant’s investigation; and
d)the Respondent has not practised since August 2021; and
e)the Respondent has no prior disciplinary history with the Applicant; and
f)the Respondent has demonstrated insight and remorse into the seriousness of her conduct; and
g)the Respondent has taken steps to reduce the risk of repetition by way of rehabilitation and reform, including attending sessions with:
(i)a clinical psychologist between 31 August 2021 and 23 January 2023; and
(ii)a counsellor between 16 June 2022 and 6 January 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to Judge Glancy
9 NOVEMBER 2023
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