NURSING & MIDWIFERY BOARD OF AUSTRALIA and CORDEROY - [2019] WASAT 48

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   NURSING & MIDWIFERY BOARD OF AUSTRALIA and CORDEROY [2019] WASAT 48
MEMBER:   MS D QUINLAN, MEMBER
MS R PETRUCCI, MEMBER
MS E PAVLOS, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   1 JULY 2019
FILE NO/S:   VR 213 of 2018
BETWEEN:   NURSING & MIDWIFERY BOARD OF AUSTRALIA
Applicant
AND
RACHEL CORDEROY
Respondent

Catchwords:

Vocational regulation - Nurse health practitioner - Breach of conditions imposed on registration - Whether practitioner's conduct is inconsistent with the practitioner being a fit and proper person to hold registration in the profession - Unprofessional conduct

Legislation:

Health Practitioner Regulation National Law (NSW) No 86a, s 150
Health Practitioner Regulation National Law (WA) Act 2010, s 3(1) s 4(1)(a), s 5, s 39, s 41, s 125, s 127, s 138, s 148(2), s 156, s 159, s 193(1)(a)(i), s 196(1),
State Administrative Tribunal Act 2004 (WA), s 15(1), s 16(1), s 60(2), s 88(2)

Result:

Practitioner found guilty of unprofessional conduct

Category: B

Representation:

Counsel:

Applicant	:	Ms L Hunter
Respondent	:	N/A

Solicitors:

Applicant	:	Australian Health Practitioner Regulation Agency (AHPRA)
Respondent	:	N/A

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

Legal Profession Complaints Committee and Wells [2014] WASAT 112
Nursing & Midwifery Board of Australia and Roe [2018] WASAT 92
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Ropciuc and Nursing and Midwifery Board of Australia [2015] WASAT 77

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 15 November 2018, the Nursing and Midwifery Board of Australia (the Board) referred allegations of professional misconduct against Ms Rachel Corderoy to the Tribunal under s 193(1)(a)(i) of the Health Practitioner Regulation National Law (National Law). Under that provision, the Board must refer a matter about a registered health practitioner to a 'responsible tribunal' if the Board reasonably believes, based on a notification or for any other reason '[that] the practitioner has behaved in a way that constitutes professional misconduct'.
With leave of the Tribunal, the Board filed amended grounds of application and a bundle of documents (Exhibit A). The allegations referred by the Board to the Tribunal are that, during the period 4 September 2017 to 10 November 2017, Ms Corderoy, who was at all relevant times a registered health practitioner under the National Law and in particular an enrolled nurse (Division 2), engaged in professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance as defined in s 5 of the National Law in that she:
(1)breached the conditions imposed on her registration;
(2)acted dishonestly by failing to advise her employer of the conditions imposed on her registration; and
(3)failed to comply with the Code of Professional Conduct for Nurses in Australia (2008 Edition) (Code).
On 7 March 2019, the Tribunal made an order for Ms Corderoy to file a response and documents and then for the application to be determined on the documents (s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Ms Corderoy did not file a response or any documents.
Ms Corderoy has not participated in these proceedings.
The Tribunal is satisfied that Ms Corderoy has had notice of the proceeding.
Ms Corderoy failed to comply with the Tribunal's orders, and failed to make any contact with the Tribunal during the course of the proceeding.

Jurisdiction and power of the Tribunal

The jurisdiction of the Tribunal upon referral by the Board under s 193(1)(a)(i) of the National Law does not involve a review of a decision. Consequently, this matter falls within the Tribunal's original jurisdiction (s 15(1) of the SAT Act). In exercising the Tribunal's original jurisdiction, the Tribunal is to deal with the matter in accordance with the SAT Act and the National Law as the enabling Act (s 16(1) of the SAT Act).
As set out in the facts below, the Board suspended Ms Corderoy's registration on 10 November 2017 under the immediate action provisions in s 156 of the National Law. That suspension continues to have effect until the decision is set aside on appeal or the suspension is revoked by the Board (s 159 of the National Law). Neither has happened and therefore Ms Corderoy's registration continues to be suspended.
On 31 May 2018 Ms Corderoy let her registration as an enrolled nurse with the Board lapse.
It is not clear to the Tribunal why the Board has taken the pre-emptive step to make an application to the Tribunal when Ms Corderoy has not sought to set aside her suspension and has let her registration lapse. Regardless of the reason(s) for the Board in making its application, the Tribunal retains jurisdiction under s 138 of the National Law and therefore must determine the matter before it.
Section 196(1) of the National Law provides that after hearing a matter about a registered health practitioner, the Tribunal may decide:
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.

Facts

In this section, the Tribunal sets outs the conditions imposed on Ms Corderoy's registration by the Nursing and Midwifery Council of New South Wales (the Council). The Tribunal refers back to these conditions in its consideration of the issue. All the other relevant facts are then set out in date order. The Tribunal has used the Board's amended grounds of application and bundle of documents to make the following findings of fact.

Conditions imposed on Ms Corderoy's registration

On 21 March 2016 the Council imposed the following conditions on Ms Corderoy's registration (the Conditions):
(a)Ms Corderoy may only administer medications under the direct supervision of a registered nurse (Division 1) who does not have conditions on his/her practice. At all times the supervisor must be present to observe, work with, guide and direct Ms Corderoy in the administration of medications (Condition 1);
(b)Ms Corderoy must:
(i)immediately inform all of her current nursing employers (as at 21 March 2016) including nurse managers at agency placements of the Conditions and provide the Council with each employer's name and contact details (Condition 2(a)); and
(ii)inform all future nursing employers including nurse managers at agency placements of the Conditions, and provide the Council with the name and contact details of each employer, before commencing work/employment as an enrolled nurse (Condition 2(b)).
(c)Ms Corderoy must only be employed as an enrolled nurse (Division 2) in circumstances where her employer has agreed to notify the Council of any breach of the conditions or unsafe practices, and exchange information with the Council related to compliance with the Conditions (Condition 3);
(d)Sections 125 to 127 of the National Law are to apply should Ms Corderoy's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate body in those circumstances is the applicant (Condition 4).

Other facts

On 18 February 2016, the Australian Health Practitioner Regulation Agency (AHPRA) received a notification (complaint) about the alleged conduct of Ms Corderoy who was employed by the Royal North Shore Hospital, New South Wales. The matter was referred to the Council. Subsequently, on 21 March 2016 the Council decided to take immediate action under s 150 of the Health Practitioner Regulation National Law (NSW) No 86a by imposing the Conditions on Ms Corderoy's registration.
The Council wrote to Ms Corderoy on 22 March 2016 to advise of the Conditions. The letter stated among other things:
The Council must discuss your case with the Health Care Complaints Commission (HCCC) to decide whether to manage it:
•as a complaint to be investigated by the HCCC
•through the Council's health or performance pathways
You will be informed of the decision when it is made.
A further letter was sent by the Council to Ms Corderoy on 23 March 2016 which set out in detail what Ms Corderoy had to do to comply with the Conditions and the Council's role in monitoring her compliance with the conditions. The letter also explained that Ms Corderoy may seek a review of the Conditions imposed on her registration and set out the process for her to request a review.
By email to the Council on 23 March 2016 Mr Corderoy acknowledged the Conditions by stating in part:
If I am to do any shifts with the agency … I will inform them I am not to administer any medication.
Further, by email to the Council, on 21 April 2016 Ms Corderoy noted in part:
I understand there are currently restrictions on my registration.
Ms Annmaree Nicolls, the Professional Officer of the Council, by email of 28 April 2016 to Ms Corderoy acknowledged that she had questions regarding the management of notification and her registration and suggested that Ms Corderoy telephone her so she could spend some time talking to her about 'the law and the process'.
On 1 May 2016, Ms Corderoy signed the Council's 'Notification of Conditions Registrant' document which set out the Conditions. The document provided instructions for Ms Corderoy including the following statement:
By signing this document you are acknowledging that you are aware of the Conditions on your registration.
On 9 May 2016, Ms Corderoy sought an on-line renewal of her registration for the 2016/17 year. In that renewal Ms Corderoy noted:
Currently have restrictions on my registration due to a complaint made against me regarding my conduct as a nurse.
Ms Corderoy wrote to Mr Tony Kofkin, Director of Investigations, Health Care Complaints Commission (HCCC) on 13 December 2016. She stated in part:
… I was working for a nursing agency but when I told them I was under investigation and had restrictions on my registration, I was unable to continue working for them.
…
I cannot account for the medications that were dispensed from the Pyxis [Medication] Station under my login details. I don't recall any of the patient's [sic] that were stated I allegedly administered them for.
…
I did not knowingly dispense the medication, especially if it was not a medication that my patient's [sic] were charted for. I know I may not have been very diligent with signing out of the Pyxis as some shifts were busy and there would be a long line up of nurses wanting to access the machine to dispense medications[.]
On 4 April 2017 Ms Anna Mackay, a case officer of the Council emailed Ms Corderoy stating the Conditions 'will remain in place until the HCCC has completed their investigation'. Further, Ms Mackay reminded Ms Corderoy that she could seek a review of the Conditions.
By email on 22 May 2017 Ms Corderoy noted in an email to Ms Moira Kelly of HCCC that 'I have had restrictions on my registration for over a year now[.]'
In response to an email from Ms Ella Patero of the Council of 4 October 2017 requesting Ms Corderoy to send through her current employment declaration, Ms Corderoy by email of the same date advised the Council that she had moved and was residing in Western Australia. Further, in that email, Ms Corderoy stated in part:
… I did pay for renewal of my registration for this year so how much longer will I have restrictions in place[?]
On 24 August 2017, Ms Corderoy signed a contract of employment to work full time as an 'enrolled nurse/medical screener' at Sonic HealthPlus Pty Ltd (Sonic Health) in Perth with a commencement date of 4 September 2017. The contract of employment provided that Ms Corderoy's responsibilities included the administering of medications 'under the direct and indirect supervision of Registered Nurse or Medical Practitioner'.
Between 4 September 2017 and 25 October 2017, Ms Corderoy worked as an enrolled nurse at Sonic Health and administered medications as reflected in the 'Consultation notes' recorded by Ms Corderoy.
On 4 October 2017 Ms Patero of the Council emailed Ms Corderoy seeking her current employment declaration form.
On 25 October 2017 by email to Ms Patero of the Council, Ms Corderoy stated she was 'now living in Perth' and asked '[H]ow much longer will these conditions be in place. It has been 2 years now with no real plan on what's next'.
In a text message Ms Corderoy told Ms Julie Stojcevski of Sonic Health on 25 October 2017:
When I worked at Royal North Shore there were Pyxis machines where you dispense your patients' [sic] medications. The machines were audited this year and showed discrepancies of some medications that were dispensed under my name in October 2015. It's a bit dodgy as I can't say I definitely logged out after each time I used it especially as there was usually a line up out the door of medication room especially during the morning medication rush which meant that anyone could have gone and taken out whatever they liked from my login without me realising. Apparently there was quite a lot of staff that had been audited but they sent correspondence regarding the matter to my address in …. and received no response and I was supposed to attend a meeting but as I was unaware I was a no show which has led to them putting conditions on my registration[.]
On 26 October 2017 Ms Patero replied to Ms Corderoy's email of 25 October 2017. In that reply, Ms Patero stated the Conditions imposed on her registration remain until the Council says otherwise.
Ms Corderoy sent the following text message on 26 October 2017 to an employee of Sonic Health that she had 'express posted the forms they gave [her] at AHPRA this morning along with a statutory declaration stating [she] was unaware of the [C]onditions'.
Ms Corderoy sent another text message to an employee of Sonic Health on 27 October 2017 stating that she 'was not aware of the [C]onditions so this has been all very confusing to [her]'.
On 27 October 2017, Sonic Health stood Ms Corderoy down from her position on full pay, pending investigation into the Conditions imposed on her registration.
On 30 October 2017, the Board received Ms Corderoy's application to have the Conditions removed from her registration. Ms Corderoy made reference to a Certificate IV Nursing (Endorsed Enrolled Nurse) from TAFE, Northern Sydney as supporting her request to remove the Conditions.
Ms Kate Rowan-Robinson, Nurse Manager, WA Head Office, Sonic Health wrote in a letter to Mr Kieryn Graham of AHPRA on 31 October 2017 in part:
… I can also confirm that medication administration is a part of Rachel's role at Sonic Health Plus and no issues have been identified with her performance in this area … I would like to note that I do not believe Rachel is a risk to the public.
On 3 November 2017 the Board decided to propose to suspend Ms Corderoy's registration and to refer the matter to the Council under s 148(2) of the National Law. On the same date, the Board wrote to Ms Corderoy setting out the Board's proposal to suspend her registration. The letter included a notice of proposed immediate action.
On 6 November 2017, Ms Corderoy advised APHRA that she had:
… moved to Perth for a fresh start. [She] got a job where [she] would not be dealing with any oral medications[.]
Further, on 6 November 2017, Ms Corderoy wrote to Ms Emma Caddy, Senior Legal Adviser at AHPRA stating in part:
These accusations have been going for 2 years. I haven't been able to work during this time or complete my studies and have received zero support[.]
The original complaint, made by … doesn't know me nor does he know or did he even try to know my integrity as a nurse. … He just referred to the Pyxis Medication Machine. A machine that if not logged off from, anyone could access. … I honestly don't know what happened but since then I have done medication administration and ensure I never have an incident like this occur again[.]
I moved to Perth for a fresh start. I got a job where I would not be dealing with any oral medications (which is the brunt of these accusations to begin with)[.]
I have decided I will no longer fight this. … I would like to surrender my registration so I can heal and eventually look at alternate career paths[.]
On 10 November 2017, the Board wrote to Ms Corderoy advising that it had decided to take immediate action under s 156 of the National Law to suspend her registration. Further, the Board wrote that under s 159 of the National Law that her suspension continues to have effect until the decision is set aside on appeal or the suspension is revoked by the Board. In giving Ms Corderoy its reasons for decision, the Board stated that it formed a reasonable belief that because of Ms Corderoy's:
… breach of conditions and related conduct that [she] pose[s] a serious risk to [her] patients and it is necessary to take immediate action to protect public health or safety by suspending your registration, as the minimum regulatory force appropriate to manage the risk posed by your conduct.
On 13 November 2017, Sonic Health terminated Ms Corderoy's employment.
In reply to the Board's letter of 10 November 2017, Ms Corderoy wrote to Ms Caddy at AHPRA on 17 November 2017. She stated in part:
… I see that my registration has been suspended for 'public health and safety'. Remind me whom I have hurt? Personally I find this ridiculous because as far as I am aware, I have not hurt or put a patient at risk under my care nor would I ever do so. The only person that has been hurt in this is myself, and my reputation[.]
On 27 November 2017 Ms Rowan-Robinson, lodged a complaint and concern (notification) with AHPRA under the mandatory notification requirements which came about by a routine registration check of Ms Corderoy. In answering the question, 'What do you hope to achieve by lodging this notification', Ms Rowan-Robinson did not tick the box for 'Action to keep the public safe' or the box for 'Disciplinary action'. Rather, she wrote 'Clarification on the practitioner's conditions'. In relation to question 17, 'Are you reporting notifiable conduct about a health practitioner or a student' Ms RowanRobinson ticked the 'Yes' box and ticked the box that she had formed the reasonable belief that Ms Corderoy had behaved in a way that constitutes notifiable conduct as she has placed the public at risk of harm because Ms Corderoy has practised the profession in a way that constitutes a significant departure from accepted professional standards. Ms Rowan-Robinson reported that the conduct occurred between 4 September 2017 and 25 October 2017 but there was no harm to patients.
On 7 December 2017 Ms Corderoy wrote to the Board in response to the Board's proposed immediate action. Ms Corderoy stated in summary:
(1)She had moved to Perth for a fresh state and got a job where she would not be dealing with any oral medications;
(2)She transferred her degree to the University of Notre Dame, where she hoped to finally complete her Bachelor of Nursing by the end of 2018 after putting it on hold until her registration was clean; and
(3)She decided that she would no longer fight and would like to surrender her registration so that she could heal and look at alternative career paths.

On 8 December 2017, the Board refused Ms Corderoy's request to have the Conditions removed from her registration.
In its letter to Ms Corderoy dated 22 December 2017, the Board noted that Ms Corderoy's registration was suspended (as at 10 November 2017) under the immediate action provision of the National Law, following her breach of the Conditions. The Board concluded that it was not appropriate to grant removal of the Conditions while the matter of her non-compliance remains under investigation.

Issue for determination

The issue for determination by the Tribunal is whether Ms Corderoy has behaved in a way that constitutes professional misconduct or unprofessional conduct or unsatisfactory professional performance under the National Law.

General principles relating to disciplinary sanctions

The Tribunal explained in Nursing & Midwifery Board of Australia and Roe [2018] WASAT 92 that the dominant purpose of the disciplinary regulation of health practitioners is the protection of the public by the maintenance of proper standards within the profession.
The Tribunal notes that s 3(1) of the National Law provides that the object of the legislation is to establish a national registration and accreditation scheme for the regulation of health practitioners including nursing and midwifery practitioners.

Onus and standard of proof

The Board bears the onus of proof. This was expressed by the Tribunal in Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9] as follows:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
The standard of proof required in a civil case where serious allegations are made was stated in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, where Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ observed at 521 522 that:
[T]he 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved[.]
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused[.]
The findings of the Tribunal set out below are made on the balance of probabilities applying the principles detailed in the above authorities.

Unprofessional conduct

The term 'unprofessional conduct' is defined in s 5 of the National Law as follows:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of
(i)a condition to which the practitioner's registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well‑being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation[.]
(Underlining for emphasis)

Professional misconduct

The first and second limbs of the definition of the term 'professional misconduct' include the words 'unprofessional conduct'. The term 'professional misconduct' is defined in s 5 of the National Law as conduct of a registered health practitioner which includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession;

Unsatisfactory professional performance

The term 'unsatisfactory professional performance' is defined in s 5 of the National Law as follows:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]

Code and guidelines

Section 39 of the National Law provides that the Board may develop and approve codes and guidelines to provide guidance to health practitioners and about other matters relevant to the exercise of its functions. Section 41 of the National Law states:
An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession.
Under s 39 of the National Law, the Board has developed and approved:
(a)Code of Professional Conduct for Nurses in Australia (2008 Edition);[1]
(b)Code of Ethics for Nurses in Australia;[2]
(c)A nurse's guide to professional boundaries.[3]
[1] Operative up to 28 February 2018 then replaced by the Code of conduct for nurses which is effective from 1 March 2018.
[2] Operative from 13 June 2013 to 28 February 2018 then replaced by the International Council of Nurses Code of ethics for nurses from 1 March 2018.
[3] Ibid.
The Code provides in part:
… A breach of the Code may constitute either professional misconduct or unprofessional conduct. For the purposes of this Code, professional misconduct refers to the 'wrong, bad or erroneous conduct of a nurse outside of the domain of his or her practice; conduct unbefitting a nurse (e.g. sexual assault, theft, or drunk and disorderly conduct in a public place). Unprofessional conduct refers to conduct that is contrary to the accepted and agreed practice standards of the profession (e.g. breaching the principles of asepsis; violating confidentiality in the relationship between persons receiving care and nurses).
The nursing profession expects nurses will conduct themselves personally and professionally in a way that maintains public trust and confidence in the profession. Nurses have a responsibility to the people to whom they provide care, society and each other to provide safe, quality and competent nursing care[.]
The Board alleged Ms Corderoy breached Conduct Statements 2, 3, 9 and 10 in its application to the Tribunal. Those Conduct Statements are set out below.
Conduct Statement 2
Nurses practise in accordance with the standards of the profession and broader health system
Explanation
1.Nurses are responsible for ensuring the standard of their practice conforms to professional standards developed and agreed by the profession, with the object of enhancing the safety of people in their care as well as their partners, family members and other members of the person's nominated network. This responsibility also applies to the nurses' colleagues.
2.Nurses practise in accordance with wider standards relating to safety and quality in health care and accountability for a safe health system, such as those relating to health documentation and information management, incident reporting and participation in adverse event analysis and formal open disclosure procedures.
3.Nurses' primary responsibility is to provide safe and competent nursing care. Any circumstance that may compromise professional standards, or any observation of questionable, unethical or unlawful practice, should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and competent care, nurses must intervene to safeguard the individual and, after exhausting internal processes, may notify an appropriate authority external to their employer organisation.
4.Nurses recognise their professional position and do not accept gifts or benefits that could be viewed as a means of securing the nurses' influence or favour.
Conduct Statement 3
Nurses practice and conduct themselves in accordance with laws relevant to the profession and practice of nursing
Explanation
1.Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.
2.Nurses witnessing the unlawful conduct of colleagues and other co-workers, whether in clinical, management, education or research areas of practice, have both a responsibility and an obligation to report such conduct to an appropriate authority and take other appropriate action as necessary to safeguard people and the public interest.
3.Where nurses make a report of unlawful or otherwise unacceptable conduct to their employers, and that report has failed to produce an appropriate response from the employers, nurses are entitled and obliged to take the matter to an appropriate external authority.
4.Nurses respect the possessions and property of persons people in their care and those of their colleagues, and are stewards of the resources of their employing organisations.
…
Conduct Statement 9
Nurses maintain and build on the community's trust and confidence in the nursing profession
Explanation
1.The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
2.The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession's good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.
3.Nurses consider the ethical interests of the nursing profession and the community when exercising their right to freedom of speech and participating in public, political and academic debate, including publication.
Conduct Statement 10
Nurses practice nursing reflectively and ethically
Explanation
1.Nurses practise nursing reflectively and ethically, in accordance with the Code of Ethics for Nurses in Australia, in order to learn from experience and contribute to personal and professional practice.
2.Nurses develop and maintain appropriate and current quality nursing advice, support and care for each person requiring and receiving care and their partners, families and other members of their nominated social network. This responsibility also applies to colleagues of nurses.
3.Nurses evaluate their conduct and competency according to the standards of the nursing profession.
4.Nurses contribute to the professional development of students and colleagues.
5.Nurses participating in research do so in accordance with recognised research guidelines and do not violate their duty of care to persons receiving nursing care.
6.Nurses advise employers and any persons in their care of any reduction in their capacity to practise due to health, social or other factors, while they seek ways of redressing the problem.

The Tribunal's consideration

Breach of the Conditions

The Tribunal finds that Ms Corderoy was aware of the Conditions imposed by the Council as evidenced by emails from Ms Corderoy to the Council dated 23 March 2016, 21 April 2016, 10 May 2016, 17 May 2016, 2 March 2017, 27 March 2017 and 25 October 2017 where she expressly referred to the Conditions. In Ms Corderoy's online application for renewal of registration as an enrolled nurse for the period 1 June 2016 to 31 May 2017 dated 9 May 2016 she also stated her registration was subject to the Conditions.
Further, the Tribunal finds Ms Corderoy breached Condition 1 imposed on her registration in that she administered medications to patients of Sonic Health in 2017 without the direct supervision of a registered nurse. This occurred on 5, 7, 8, 12, 13, 14, 19, 20, 21, 22, 27, 28 and 29 September 2017 when on each of these days Ms Corderoy administered medications including the Twinrix vaccine and the Boostrix vaccine without direct supervision of a registered nurse to the persons listed in Schedule A to the Board's application to the Tribunal.
Also, the Tribunal finds that Ms Corderoy breached Condition 2(a) in that she failed to advise Sonic Health of the Conditions prior to her commencing employment with them. That is, at no time prior to 4 September 2017 did Ms Corderoy advise Sonic Health of the Conditions and/or provide to the Council Sonic Health's contact details.
In addition, Ms Corderoy failed to inform the Council with the name and contact details of Sonic Health before commencing employment. The Tribunal finds this is a breach of Condition 2(b).
The Tribunal finds that at no time prior to 25 October 2017 did Ms Corderoy inform Sonic Health of the Conditions imposed on her registration which required Sonic Health to agree to notify the Council of any breach of the Conditions or unsafe practice, and exchange of information with the Council related to compliance with the conditions (as required by Condition 3).
Finally, in relation to Condition 4, Ms Corderoy did not notify the Council of her move from New South Wales (NSW) until her email of 4 October 2017 when Ms Patero, of the Council sought from Ms Corderoy her current employment declaration form. This meant that the Council was not able to amend the Conditions to require her to report to the Board (rather than to the Council) before 4 October 2017.
In conclusion, the Tribunal is satisfied that between 4 September 2017 and 10 November 2017 Ms Corderoy breached the Conditions.

Other allegations made by the Board

The Board in its application alleged that Ms Corderoy, by her actions, in not abiding by the Conditions imposed on her registration, has failed to comply with the Code in that she:
(a)failed to comply with Conduct Statement 2 of the Code by failing to practice in accordance with the standards of the profession and broader health system;
(b)failed to comply with Conduct Statement 3 of the Code by failing to practice and conduct herself in accordance with the laws relevant to the profession and practice of nursing;
(c)failed to comply with Conduct Statement 9 of the Code by failing to maintains and build public trust and confidence in the profession; and
(d)failed to comply with Conduct Statement 10 of the Code by failing to practise nursing reflectively and ethically.
However, the Board did not link Ms Corderoy's alleged breach of the Code to the alleged breach of the Conditions.
As noted by the Tribunal in Ropciuc and Nursing and Midwifery Board of Australia [2015] WASAT 77 (Ropciuc): at [13]
The Code is in very general terms and in most cases it will be necessary to identify something beyond a general allegation of a breach of the Code if an allegation of unsatisfactory professional performance is to be made out.
Further, as stated in Ropciuc at [14] - [15] specific allegations should be identified and an opportunity given to the health practitioner to respond. This is because procedural fairness demands no less. Procedural fairness requires that the allegation be identified with more precision than a simple statement by the Board that Ms Corderoy failed to comply with the Code.
Separately, in its application, the Board alleged that Ms Corderoy was dishonest in that:
(a)She failed to advise Sonic Health of the Conditions prior to commencing employment or at any stage prior to being stood down from her employment with Sonic Health; and
(b)On 25, 26 and 27 October 2017 she told Sonic Health that she was not aware of the Conditions when she had previously acknowledged the Conditions imposed on her registration in various emails to the Council in the period 22 March 2016 to 30 October 2017 including when Ms Corderoy lodged an application seeking to have the Conditions removed.
In conclusion, the allegation that Ms Corderoy's breached the Code and the allegation that she was dishonest are, in the Tribunal's view, part and parcel of the Board's allegation that Ms Corderoy breached the Conditions. Because of this, it is not necessary for the Tribunal to make separate findings in relation to these two allegations.

Ms Corderoy's conduct conclusion

The Tribunal cannot be satisfied that Ms Corderoy's breach of the Conditions which occurred in connection with her profession as an enrolled nurse supports the conclusion put forward by the Board that she is not a fit and proper person to hold registration in the nursing profession. In other words, the Tribunal finds that Ms Corderoy did not behave in such a way that constitutes professional misconduct.
Rather, the Tribunal concludes that Ms Corderoy's conduct is that of unprofessional conduct. This is because Ms Corderoy breached the Conditions imposed on her registration as she failed to inform Sonic Health of the Conditions prior to her commencing employment or at any time prior to being stood down from her employment with Sonic Health. Further, even though the public were not put at harm according to one statement from Ms Rowan-Robinson of Sonic Health, Ms Corderoy administered medications without direct supervision of a registered nurse (Division 1) in breach of the Conditions. Finally, she moved away from NSW without informing the Council.

Even though on each of 25, 26 and 27 October 2017 Ms Corderoy told Sonic Health that she was unaware of the existence of the Conditions, the Tribunal finds Ms Corderoy clearly was aware of the Conditions imposed on her registration as evidenced by various emails from herself to the Council where she acknowledged the existence of the Conditions, but she proceeded to breach the Conditions by, for example, failing to inform Sonic Health of the Conditions.
The definition of 'unprofessional conduct' in s 5 of the National Law expressly includes the contravention of a condition on which the practitioner's registration was subject to. This is what happened in Ms Corderoy's case.
The Tribunal concludes that Ms Corderoy's breach of the Conditions when she knew that her actions were in contravention of the Conditions, establish that she engaged in unprofessional conduct under the National Law.
Having concluded that Ms Corderoy's conduct amounted to unprofessional conduct, the matter should now proceed to the determination of the appropriate disciplinary consequence of the Tribunal's decision that Ms Corderoy has behaved in a way that constitutes unprofessional conduct and the Board's application that Ms Corderoy should pay its costs of the proceeding under s 88(2) of the SAT Act. Subject to any further order, the Tribunal considers that the issues of penalty and costs should be determined entirely on the documents, under s 60(2) of the SAT Act, after the parties have had the opportunity to file and exchange written submissions.

Orders

The Tribunal makes the following orders:
1.During the period 4 September 2017 to 10 November 2017, Ms Rachel Corderoy (the practitioner) behaved in a way that constitutes unprofessional conduct in terms of s 196(1)(b)(ii) of the Health Practitioner Regulation National Law in that she breached the conditions imposed on her registration by:
(a)administering medications to patients of SonicHealth Plus Pty Ltd (Sonic Health) without direct supervision of a registered nurse (Division 1) (contrary to Condition 1(a));
(b)failing to advise her employer, Sonic Health, of the Conditions before commencing work/employment with them (contrary to Condition 2(a));
(c)failing to inform the Nursing and Midwifery Council of New South Wales (the Council) with the name and contact details of Sonic Health before commencing work/employment with them (contrary to Condition 2(b));
(d)working with Sonic Health in circumstances where she knew, or ought to have known that Sonic Health had not agreed to notify the Council of any breach of the Conditions or unsafe practice and/or exchange information with the Council related to her compliance with the Conditions (contrary to Condition 3); and
(e)not informing the Council when she moved from New South Wales so that the conditions on her registration could be amended to require her to report to the Board.

2.By 15 July 2019, the Nursing and Midwifery Board of Australia (the Board) must file with the Tribunal and give to the practitioner written submissions in relation to penalty and costs and any supporting information.
3.By 29 July 2019 the practitioner must file with the Tribunal and give to the Board written submissions in relation to penalty and costs and any character references on which the practitioner relies.
4.By 5 August 2019, the Board may file with the Tribunal, and if so, must give a copy to the practitioner, of any written submission in reply to the practitioner's submissions and character references.
5.Subject to any further order, the issues of penalty and costs are to be determined entirely on the documents under s 60(2) of the State Administrative Tribunal Act 2004 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
1 JULY 2019