VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z323/2022	
CATCHWORDS	
Review and Regulation List – nurse – failing to maintain professional indemnity insurance while practising, providing false and/or misleading information to the regulator, agreed facts, findings and proposed determination, whether true agreement, relevance of specific deterrence and general deterrence, exceptional period of delay in referral to the Tribunal, sections 5, 129 and 196 of the Health Practitioner Regulation National Law (Victoria), Medical Board of Australia and Pharmacy Board of Australia v Lee (Review & Regulation) [2019] VCAT 311, R v Talia [2009] VSCA 260 and Stirling v Legal Services Commissioner [2013] VSCA 374.

APPLICANT	Nursing & Midwifery Board of Australia	
RESPONDENT	Belinda Lloyd	
WHERE HELD	Videoconference	
BEFORE	Member N Campbell, Member P Barry and Member M Bylhouwer	
HEARING TYPE	Hearing	
DATE OF HEARING	14 March 2024	
DATE OF ORDER	3 April 2024	
DATE OF WRITTEN REASONS	3 April 2024	
CITATION	Nursing & Midwifery Board of Australia v Lloyd (Review and Regulation) [2024] VCAT 293	

FIndings
The Tribunal finds as follows:
1.	Belinda Lloyd engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) of section 5 of the Health Practitioner Regulation National Law (Victoria) in that, between about 23 May 2013 and 20 June 2017, Belinda Lloyd failed to maintain professional indemnity insurance arrangements in accordance with the Nursing & Midwifery Board of Australia's registration standards and in contravention of section 129 of the Health Practitioner Regulation National Law (Victoria).
2.	Belinda Lloyd engaged in professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) of section 5 of the Health Practitioner Regulation National Law (Victoria) in that, between 16 May 2014 and 22 May 2017, Belinda Lloyd falsely and misleadingly declared on yearly registration renewal forms that she had complied with the Nursing & Midwifery Board of Australia's registration requirements with respect to professional indemnity insurance cover.

ORDERS
Pursuant to the Health Practitioner Regulation National Law (Victoria), the Tribunal orders:
1.	Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria), Belinda Lloyd is reprimanded.

N Campbell 
Member 	P Barry
Member	M Bylhouwer
Member	

APPEARANCES:		
For Applicant 	Mr G Ayres of Counsel, Ms V Zhang, solicitor, King & Wood Mallesons Lawyers and Ms E Sawyer from Ahpra	
For Respondent	In person	

REASONS
The proceeding
1.	The Nursing & Midwifery Board of Australia (‘the Board’) has referred to the Tribunal allegations about the respondent nurse, Belinda Lloyd (‘Ms Lloyd’ or ‘the respondent’), under section 193 of the Health Practitioner Regulation National Law (Victoria) (‘the National Law’). 
2.	The alleged conduct relates to a failure by Ms Lloyd to maintain professional indemnity insurance while practising as a nurse and making false or misleading statements to the Board regarding holding professional indemnity insurance when renewing her registration.
3.	The parties largely agreed on the findings of fact, the characterisation of the conduct and the appropriate determination. Upon consideration of the evidence as contained in the Tribunal Book, Ms Lloyd’s oral evidence and the oral and written submissions of the parties, the Tribunal finds that the facts alleged in Allegations 1 and 2 and the particulars to those Allegations are proven, save for one exception noted later in these reasons. The Tribunal finds that the proven conduct should be characterised as constituting professional misconduct in relation to each of the allegations. By the end of the hearing, the Board was solely seeking a reprimand as the determination in this matter. 
4.	The Tribunal is satisfied that the appropriate determination in this matter is that Ms Lloyd is reprimanded.
Background
5.	On 20 June 2017, by telephone, and on 28 June 2017, in writing, Ms Lloyd informed the Board that she had failed to hold professional indemnity insurance from approximately May 2013 to June 2017. 
6.	On 5 October 2017, the Board decided to investigate the matter. 
7.	On 11 May 2022, the Board referred the matter to the Tribunal. The written referral to the Tribunal attached a Notice of Allegations (‘the NOA’). 
8.	Pursuant to directions made by the Tribunal, the parties filed with the Tribunal a joint Tribunal Book, which included a Statement of Agreed and Disputed Facts, dated 14 April 2023.
9.	The Board later filed a Statement of Agreed Facts, Findings and Determinations, dated 26 April 2023 (‘the SAFFD’).
10.	The parties also each filed written outlines of submissions.
11.	On 1 August 2023, the proceeding came on for hearing before the Tribunal on the papers. Correspondence from the parties in the days leading up to this hearing indicated that there may not be agreement, as had previously been indicated to the Tribunal. The Tribunal therefore decided that the matter was not suitable to be decided on the papers and that it should be listed for a hearing, where the parties could appear, give evidence and make oral submissions.
12.	The matter came back on for hearing on 14 March 2024, by which time the Board had filed a supplementary submission, in which it sought an additional determination in the form of a condition on Ms Lloyd’s registration that she provide verification of her professional indemnity insurance status to the Board on a regular basis.  
13.	Ms Lloyd gave evidence to the Tribunal and the parties each relied upon various documents in the Tribunal Book.
14.	During the course of the hearing, after hearing evidence and submissions about the facts, the Tribunal indicated to the parties the factual findings it would make. The Tribunal then heard further evidence and submissions in relation to the characterisation of the conduct and the appropriate determination.
15.	In closing submissions, the Board conceded that as Ms Lloyd no longer held registration as a nurse, the only remaining determination which was sought in this case was a reprimand. 
16.	At the conclusion of the hearing, the Tribunal reserved its decision.
Factual context
17.	In 1987, Ms Lloyd qualified as a Division 1 nurse. She was first registered as a nurse on 1 April 1987.  In 2007, Ms Lloyd completed a Certificate in Developmental Psychiatry at Melbourne University. In 2008, she completed a Graduate Certificate in Mental Health Nursing at Flinders University. From 2010, she held ACHMHN credentialing (Credentialed Mental Health Nurse). From 2001 to 2006, Ms Lloyd worked in the Adult Psychiatric Unit at the Austin Repatriation Hospital, and from 2007 to 2012, she worked in various roles, including in mental health units and community mental health programs. 
18.	From 2012, Ms Lloyd managed mindfulness stress reduction training and engaged in private practice as a mental health nurse in Warburton, Victoria. From 2013 to 2015, she established and managed a community health and wellness centre in Warburton. From June 2014, Ms Lloyd also provided mental health nursing services through the Commonwealth Government ATAPS program in the Warburton area. She was the only such service operating in the area. 
19.	From February 2016, Ms Lloyd was also employed two days a week as a community health nurse at a community health service. 
20.	On about 23 May 2013, the professional indemnity insurance held by Ms Lloyd through the Health and Community Services Union (‘the Union’) lapsed.
21.	From 23 May 2013 to 20 June 2017, Ms Lloyd engaged in private practice as a mental health nurse without professional indemnity insurance. Her work as a community health nurse for the community health service from February 2016, was covered by her then employer’s professional indemnity insurance.
22.	Ms Lloyd held public liability insurance in this period. This policy had an express exclusion for professional indemnity coverage.
23.	In May 2014, Ms Lloyd completed a request for a quote for professional indemnity insurance with her insurance broker. Ms Lloyd accepts that her broker had indicated that the public liability insurance did not cover professional indemnity at this time, but Ms Lloyd believed that the advice she received was vague and the policy itself was unambiguous regarding coverage for professional indemnity. 
24.	In the process of renewing her registration on 30 May 2013, 16 May 2014, 4 May 2015, 5 May 2016 and 22 May 2017, Ms Lloyd declared in writing to the Board that during her previous period of registration, she had practised in accordance with the requirements of the Board’s professional indemnity insurance arrangements registration standards and committed to practise in accordance with these standards.
25.	On 20 June 2017, Ms Lloyd attended at the office of her insurance broker regarding a potential professional indemnity insurance claim. Her broker informed her that she had no professional indemnity coverage under her public liability policy. 
26.	On the same day, Ms Lloyd notified the Board verbally that she did not have professional indemnity insurance for her private practise. She immediately ceased her private practice as a mental health nurse. On 28 June 2017, Ms Lloyd notified the Board in writing that she had practised without professional indemnity insurance. 
27.	Ms Lloyd has not engaged in private practice since 20 June 2017. She continued to work for the community health service until about 2021 or 2022. Ms Lloyd is not currently registered and is working outside of the profession. 
The relevant law
28.	Section 193 of the National Law relevantly provides:
(1) 	Subject to section 193A, a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if—
(a) 	for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or
(b) 	for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal
29.	Section 196 of the National Law relevantly provides:
(1) 	After hearing a matter about a registered health practitioner, a responsible 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;
…
or
(2) 	If a responsible tribunal makes a decision referred to in subsection (1) (b), 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, including, for example—
…
(iii) 	a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
…
(v) 	a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
…
…
(3) 	If the responsible tribunal decides to impose a condition on the practitioner’s registration, the tribunal must also decide a review period for the condition.
....
30.	Section 5 of the National Law provides that professional misconduct of a registered practitioner includes:
(a) 	unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) 	more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) 	conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
31.	Section 5 of the National Law also provides that unprofessional conduct 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
…
32.	Section 129 of the National Law relevantly provides that a registered health practitioner must not practice unless appropriate professional indemnity insurance arrangements are in force.
33.	In the circumstances where serious allegations are made against a party including falsifying a document or fraud, the Briginshaw standard applies to the state of satisfaction required in making adverse findings regarding these allegations.  In Briginshaw v Briginshaw (1938) CLR 336 at 362, Dixon J discussed the principle as follows:
The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
34.	The principle goes to the clarity and quality of the evidence and would require excluding or giving little weight to hearsay evidence, conclusions of fact and opinion without basis, as they are inexact proofs, indefinite testimony and/or indirect inferences. The evidence of the allegations against Ms Lloyd is considered in light of this principle.
Allegations 
35.	The full allegations and particulars are set out at Schedule 1 to these reasons. The factual allegations contained in the NOA, not including the particulars, are as follows:
A.	between 23 May 2013 and at least 20 June 2017, RN Lloyd failed to maintain any or appropriate Professional Indemnity Insurance arrangements in accordance with the Board's registration standards and in contravention of section 129 of the National Law (Allegation 1).
B.	between 16 May 2014 and 22 May 2017, RN Lloyd falsely and/or misleadingly declared on yearly registration renewal forms that she complied with the Board's registration requirements with respect to Professional Indemnity Insurance cover (Allegation 2).
36.	At [4] and [5] of the SAFFD, dated 26 April 2023, and in her oral evidence to the Tribunal, Ms Lloyd accepted that she engaged in the conduct described in Allegations 1 and 2. Ms Lloyd disagreed with the way she understood the Board was putting her state of knowledge and intention to engage in the alleged conduct. Ms Lloyd indicated that she was contesting that she was wilfully reckless in the conduct described in Allegations 1 and 2. She accepted that she had been reckless and not given sufficient attention to the issue of her professional indemnity insurance. Ms Lloyd argued that the advice from the broker had been vague and the policy wording of the public liability insurance was ambiguous. The interpretation of the policy involved understanding amendments to the exclusion clause, which removed one clause regarding professional indemnity insurance and replaced it with another.
37.	The Board invited the Tribunal to find that Ms Lloyd was reckless, rather than wilfully reckless. 
38.	The relevant principles for a tribunal to apply in circumstances when there is an agreed statement of facts and findings, as in the present case, are that the Tribunal must be satisfied itself that the findings are appropriate and no agreement between the regulator and the practitioner can supplant that duty. However, any agreement between the parties is a highly relevant matter. Whether a person is legally represented may be an important consideration.
39.	In this case, Ms Lloyd was not represented by solicitors or Counsel in the preparation of the SAFFD or at the hearing of this matter. The Board was represented at all relevant times. Due to Ms Lloyd’s indication in her written submissions that she did not agree with everything in the SAFFD, the Tribunal has taken particular care in relying upon this document and sought Ms Lloyd’s position on aspects of the purported agreement evidenced by this document.
40.	On the basis of Ms Lloyd’s evidence to the Tribunal, her correspondence with Ahpra, her professional indemnity insurance and public liability insurance records, the witness statement from her insurance broker and the other documents contained in the Tribunal Book, the Tribunal is comfortably satisfied that Ms Lloyd engaged in the conduct alleged in Allegations 1 and 2 of the NOA. Save for one item, the Tribunal is satisfied that the Board has proven the particulars to Allegations 1 and 2. 
41.	Relevantly, paragraph v. of the particulars to Allegation 2 states:
RN Lloyd knew or ought to have known that the declarations were false.
42.	The declarations referred to in paragraph v. were the declarations to the Board as to Ms Lloyd’s professional indemnity insurance. The Tribunal is satisfied that Ms Lloyd ought to have known that she did not hold professional indemnity insurance at the time of making each declaration. Due to the issues in Ms Lloyd’s professional life at the time of the conduct, including her workload in establishing and managing a wellness centre and being the only provider of mental health nursing services in her area, as well as the difficulties which the Tribunal accepts that she had interpreting the terms of the public liability policy, the Tribunal is not satisfied that the Board has proven that Ms Lloyd had actual knowledge of her lack of professional indemnity insurance. This conclusion is reinforced by her conduct on discovering her lack of coverage in June 2017, being to self-notify the Board and cease private practice.
43.	The SAFFD contained the joint position of the parties as to the characterisation of the conduct alleged in Allegations 1 and 2, which was that the conduct described in Allegations 1 and 2, when considered separately, was in each case professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law.
44.	Outside of the SAFFD, Ms Lloyd did not make any direct submissions as to the correct characterisation of the conduct under the National Law.
45.	The Board submitted that the agreed characterisation of the proven conduct under Allegations 1 and 2, was correct for the following reasons:
a	Failure to hold professional indemnity insurance is inherently serious;
b	Failure by a practitioner to ensure they hold appropriate professional indemnity insurance cover is not a ‘mere lack of diligence’ but a ‘fundamental professional failing’;
c	The purpose of professional indemnity insurance is to protect the public and is one of the pillars on which the profession stakes its reputation;
d	Ms Lloyd sought to make a claim against her professional indemnity insurance. The making of the claim itself is evidence of the very real need for practitioners to have adequate professional indemnity insurance. Her conduct placed patients at risk of not having any recourse for claims;
e	The National Law, the Code of Professional Conduct for nurses in Australia and the Standards applicable to the profession each require nurses not to practise unless they have appropriate professional indemnity insurance;
f	Despite the express language used by the Renewal of Registration Application, to prompt a practitioner’s mind to their obligations, the Respondent falsely completed the application on five separate occasions;
g	The conduct was repeated and occurred over a lengthy period of time. The conduct was not isolated;
h	The proven misconduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience.
46.	Ms Lloyd relevantly gave evidence in relation to the characterisation of the conduct, that:
i	The failure to maintain her professional indemnity insurance and her failure to correctly declare her insurance status on her registration renewal, meant that her performance was substandard, ineffective and a failure due to her mismanagement. Ms Lloyd accepts that she made a grave mistake;
j	She incorrectly stated she held insurance in her applications for renewal of registration.
47.	The Tribunal finds that the proven conduct under Allegation 1 was serious, as it related to the failure of Ms Lloyd to hold professional indemnity insurance for a period of over four years, while she continued to practice. The financial consequences for a patient with a significant claim against Ms Lloyd or her practice in this period, could have been devastating. The conduct in Allegation 1 was in contravention of s129 of the National Law, the Code of Professional Conduct for nurses in Australia and the Standards applicable to the profession.
48.	The Tribunal finds that the proven conduct under Allegation 2 was serious, as it related to Ms Lloyd providing false and misleading information to the Board regarding holding professional liability insurance. The purpose of the Board seeking this information from practitioners is to ensure that important obligations are being met by practitioners. The failure to answer correctly was a missed opportunity to uncover the issue at an earlier time. 
49.	In relation to the proven conduct under Allegations 1 and 2, the Tribunal is satisfied that the proven conduct under each allegation, when considered separately, was unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience as Ms Lloyd.
50.	The Tribunal therefore finds that the proven conduct in relation to Allegations 1 and 2, when considered separately, in each case constitutes professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law.
Determination
51.	The SAFFD proposes that Ms Lloyd should be reprimanded and that her registration should be suspended for a period of six weeks. In the Board’s supplementary submissions filed after the SAFFD, the Board also sought that conditions be placed on Ms Lloyd’s registration. The proposed conditions require Ms Lloyd to provide the Board with a copy of her certificate of currency for professional indemnity insurance each year, to provide the Board with the name of her insurance and an acknowledgment that the Board may contact the insurer for verification.
52.	The Board did not give a satisfactory explanation for seeking to depart from the agreed determination in the SAFFD, when at the same time it sought to hold Ms Lloyd to her admissions in the SAFFD. The Tribunal notes that any dispute Ms Lloyd had with the SAFFD was in relation to a few words and otherwise she was disputing only the way the facts were interpreted in the Board’s submissions. The Board submitted that there should be a departure from the agreed determination for the protection of the public but did not satisfactorily explain why such a proposed condition on registration was not included in the SAFFD.
53.	At the hearing, in response to a question from the Tribunal, Counsel for the Board indicated that the Board believed that Ms Lloyd was still registered as a health practitioner under the National Law. Ms Lloyd indicated that she was no longer registered, as she had let her registration lapse some time ago. The hearing was stood down for the Board to make enquiries. When the hearing recommenced, the Board indicated that Ms Lloyd was no longer registered as a health practitioner and therefore the only determination which the Board had sought and which was still available to the Tribunal, was the proposed reprimand. The Board therefore sought the sole determination of a reprimand. 
54.	The Board did seek for the Tribunal to indicate in its written reasons, the determinations it would have made if Ms Lloyd’s registration was still in place. While the Tribunal is reluctant to engage in dealing in hypothetical situations, as it has obligations to parties in other proceedings waiting to have their cases heard and determined, for reasons which will become apparent, the Tribunal considers that in this case there is potential public benefit in considering the potential outcome, if Ms Lloyd’s registration remained in place at the time of the hearing. 
55.	The principles to be applied by the Tribunal in considering the appropriate determination are summarised in Medical Board of Australia and Pharmacy Board of Australia v Lee (Review & Regulation) [2019] VCAT 311 at [20] as follows:
a. 	the purpose of the imposition of determinations is to protect of the public;
b. 	determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;
c. 	determinations should in no way be punitive;
d. 	the objectives of determinations can be achieved by specific deterrence, that is the deterrence of the person concerned from further inappropriate conduct; by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly, and by facilitation of rehabilitation on the part of the practitioner;
e. 	personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner;
f. 	the likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination;
g. 	the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner;
h. 	insight can include as an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and /or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions; and
i. 	any form of official censure is of consequence. It has been held that “a reprimand should not be considered a ‘slap over the wrist’”.
(footnotes omitted)
Consideration of Determination
56.	The Tribunal considered the relevant factors as follows.
The issue of delay in the investigation
57.	The scheme of the National Law envisages that the investigations of notifications about health practitioners would be undertaken in a timely manner. This is clear from a range of provisions of the National Law, including section 4 of the National Law, which requires an entity under the National Law to exercise its functions having regard to the guiding principles. The guiding principles in section 3(3) of the National Law, include:
(a)	The scheme is to operate in a transparent, accountable, efficient, effective and fair way;
58.	Section 25 of the National Law requires that Ahpra:
(i)	Establish an efficient procedure for receiving and dealing with notifications against persons who are or were registered health practitioner …
59.	Section 162 of the National Law provides:
The National Board must ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matters to be investigated.
60.	The Board therefore has a statutory obligation to pursue matters of this type promptly. The Victorian Court of Appeal in R v Talia [2009] VSCA 260 at [22] relevantly stated that:
… there is force to the submission for the appellant that the learned judge either did not bring the very considerable delay to account, or else that he under-weighed it.  Delay may stand as a powerful mitigatory feature.  If the accused has not re-offended in a lengthy period between offending and sentence, it will tend to show that there is an enhanced prospect of rehabilitation.  There is also a question of fairness in the event that a matter is left hanging over an offender’s head during an apparently leisurely process of investigation and prosecution.  The longer the period of delay, the greater its likely weight as a mitigatory circumstance, particularly when the delay is not attributable to the conduct of the accused.  Again, whilst it is not necessary for delay to operate as a circumstance of mitigation, that it be unexplained, the fact that it is not attributable to the conduct of the accused will likely make it of greater significance.
61.	In Stirling v Legal Services Commissioner [2013] VSCA 374 (‘Stirling’) at [127], the Victorian Court of Appeal found:
… for a regulator to protect the public interest, it is unacceptable that it took almost four years from the time the investigation started to the end of the Tribunal hearing. … Matters of this sort should be brought to justice quickly. The failure to prosecute expeditiously is not satisfactorily explained by the appellant’s failures or delay in responding to the allegations. The respondent had sufficient facts for prosecution of the appellant long before the time at which he made its application to the Tribunal.
62.	The delay in disciplinary proceedings being commenced and finalised has been recognised as a matter to be taken into account in determining an appropriate penalty. A delay may be a mitigating factor and is considered in the light of the rehabilitation of the person in the period and the fairness of such a delay on the person. 
63.	A central issue in this case is the period of delay by the Board from when Ms Lloyd self-notified the Board of her failure to hold professional indemnity insurance until the Board referred the matter to VCAT. On 28 June 2017, Ms Lloyd self-notified the Board in writing. On 5 October 2017, the Board decided to commence an investigation. The Board referred the matter to the Tribunal on 11 May 2022. 
64.	It was almost five years from the written self-notification until the matter was referred to this Tribunal. In response to questioning from the Tribunal, the Board was unable to give any explanation for this exceptionally long period in what was a somewhat straightforward, although serious, case where a practitioner self-reported and largely accepted the proven conduct occurred, the characterisation of the conduct and the determination that should be made. In this case, unlike the case referred to above of Stirling, the cause for the delay falls solely on the Board. Ms Lloyd did not contribute to the delay.
65.	The period of delay by the Board in the present case, in the circumstances of Ms Lloyd self-notifying and not disputing most matters, is exceptional. This delay has visited very significant unfairness on Ms Lloyd, particularly in relation to the damage to her career. On her evidence, which we accept, the delay has led her to leave the profession, most likely permanently. While the investigation has been ongoing, Ms Lloyd has been unable to obtain professional indemnity insurance to practice on her own account. Such an outcome being visited on Ms Lloyd was not needed for the purposes of the National Law.
66.	The delay has allowed significant time in which Ms Lloyd has developed clear and genuine insight and remorse, in addition to the insight which she possessed when she notified the Board of the conduct in June 2017. This and the other circumstances have led the Tribunal to conclude that specific deterrence is a very minor factor in this case. 
67.	If the Board fails within a reasonable time to progress relatively serious matters, where the practitioner has self-notified the Board and the parties are largely in agreement regarding the facts, findings and determinations to be made, the Board is failing in its role to protect the community.
68.	As discussed below, the delay has also rendered the purpose of general deterrence in making the determination irrelevant. 
69.	While not relevant to the determination, the Tribunal notes that the exceptional period of delay by the Board has also visited unfairness on the community and the profession. The Board has failed to protect the community by failing to take timely action regarding the serious conduct of Ms Lloyd and has also damaged the community’s access to an important health service by removing Ms Lloyd from providing a vital service in a regional area for a period far longer than reasonable to conduct the investigation. The delay has potentially led to the loss to the community of an experienced and trained mental health nurse. 
Nature and seriousness of conduct
70.	The conduct proven under Allegation 1 is that Ms Lloyd practised without professional indemnity insurance from May 2013 to June 2017. The Tribunal finds that the conduct was serious in the circumstances of the case, including that it related to the failure to hold professional indemnity insurance for a period of over 4 years, while Ms Lloyd continued to practice. The financial consequences for a patient with a significant claim against Ms Lloyd or her practice in this period could have been devastating. 
71.	Section 129 of the National Law, the Code of Conduct and the Standards require nurses to hold appropriate professional indemnity insurance arrangements.
72.	In relation to Allegation 2, Ms Lloyd provided false and misleading information to the Board. She provided declarations to the Board on applying for renewal of her registration on 30 May 2013, 16 May 2014, 4 May 2015, 5 May 2016 and 22 May 2017, incorrectly stating that she held professional indemnity insurance in the previous registration period. The Tribunal finds that this conduct was serious.
73.	The Tribunal is not satisfied that the proven conduct for each of Allegations 1 and 2 was deliberate or calculated by Ms Lloyd.  
General deterrence and reputation of the profession
74.	The Board submitted that the proposed determination is necessary to make clear to other practitioners the importance of ensuring adequate professional indemnity insurance is maintained and that they take steps to confirm they hold such insurance, when making a declaration to the Board for their registration renewal.
75.	In relation to the reputation of the profession, the Board submitted that it is a matter of public confidence in the profession that practitioners are adequately insured. It was submitted that the requirement for ongoing compliance and disclosure of professional indemnity insurance is fundamental to the maintenance of the good reputation of the profession.
76.	The Tribunal is not satisfied that the proposed suspension of Ms Lloyd’s registration serves the purpose of general deterrence in circumstances where the Board took almost five years to refer the matter to the Tribunal. The Tribunal is not satisfied that other practitioners would be deterred from such conduct on learning that the Board took that period to refer the case to this Tribunal and that many years after the relevant events, the practitioner was then suspended for six weeks.
77.	Similarly, the proposed suspension does not serve the purpose of protecting the community. The delay in referring the matter to this Tribunal means that there is no purpose of protecting the public to be served in imposing a suspension. That boat has sailed.
78.	Due to the delay by the Board in bringing this matter to the Tribunal, the Tribunal is not satisfied that there is a need for general deterrence to be part of the determination consideration to deter other practitioners from failing to meet their significant professional obligations. 
Specific deterrence and protection of the public
79.	In deciding the need for specific deterrence in making the appropriate determination, issues such as insight and remorse are relevant.
80.	The Board submitted that:
a	Ms Lloyd’s conduct was reckless; and
b	the proposed conditions would ensure that Ms Lloyd was aware of issues associated with professional indemnity insurance. 
81.	Ms Lloyd gave evidence relevant to specific deterrence as follows:
a.	Ms Lloyd stated that she received less than professional and unreasonable responses from her insurance broker. The responses were couched in terms such as “I think … like … that …” and “we are pretty sure that …”. Ms Lloyd was frustrated with the insurance broker and is distrustful of insurance companies. The professional indemnity insurance quote she received was ridiculous; 
b.	At the time she first failed to take out the insurance, Ms Lloyd was setting up the wellness centre and had huge responsibilities. She was dealing with high needs mental health patients and issues regarding safety;
c.	Ms Lloyd accepts that professional indemnity insurance is important.  She made attempts to get insurance, but it was further down her priority list than the needs of her clients and the workloads she was involved with; 
d.	The insurance certificate of currency for Ms Lloyd’s public liability insurance contained a double negative about professional indemnity insurance and it was never explained. Ms Lloyd was confused about it and mistrusted insurance companies generally;
e.	Ms Lloyd now accepts that she should have returned to the Union and taken out their simple and reliable professional indemnity insurance;
f.	Ms Lloyd stated that she was regretful about what occurred and, in retrospect, should have taken time to assess the situation. She thought that the insurance broker was trying to upsell her into a more expensive product. At the time, Ms Lloyd was unclear as to whether she did have professional indemnity insurance. The broker was unclear and vague; 
g.	Ms Lloyd accepts responsibility for what occurred. She is not defending what occurred. Ms Lloyd wished to flesh out at this hearing what occurred at the time;
h.	She stated that she understands that the declarations made on renewal of her registration are important and should not be made lightly;
i.	Ms Lloyd told the Tribunal that after she discovered she did not hold professional indemnity insurance, she:
i.	Immediately telephoned Ahpra to notify of her failure and followed Ahpra’s instructions to notify it in writing;
ii.	Telephoned the organisation she worked with regarding ATAPS and advised them of the situation. Ms Lloyd was advised that all her clients would need to be re-assigned until the Ahpra investigation was complete and Ms Lloyd was able to insure herself;
iii.	Spoke to her manager at the community health service, who then checked whether Ms Lloyd was covered by the service’s professional indemnity insurance;
j.	When asked by the Tribunal what she would say about her conduct now, Ms Lloyd stated that she is ashamed and remorseful. She has deeply examined her choices and behaviour. Ms Lloyd recognises that the registration renewals had not prompted reflection or awareness regarding professional indemnity insurance. Her performance was substandard and ineffective and was a failure due to mismanagement;
k.	Ms Lloyd stated that she doubted she would return to the profession. If she did, she would ensure the conduct did not re-occur, as she was “not stupid”. Ms Lloyd would ensure that she was insured through the Union insurance scheme; 
l.	She made a grave mistake but the distress caused by the process was disproportionate to the conduct;
m.	Ms Lloyd stated that she was a committed and dedicated professional. The disciplinary process has been punitive and cruel. The delay in the disciplinary process has meant that it was impossible for Ms Lloyd to continue in the profession. She could not continue to perform at the appropriate standard;
n.	Ms Lloyd has been unable to re-insure for private practice since June 2017, due to the ongoing Ahpra investigation. She was providing the only such service available in the town.
82.	Ms Lloyd has shown genuine and clear insight and remorse. The Tribunal accepts that the conduct was not intentional. She self-notified Ahpra of the conduct. Ms Lloyd has experienced significant negative outcomes from the disciplinary process, including being unable to work at the level she wished for a period of almost seven years, in circumstances where relevantly the Board was seeking a six week suspension of her registration. 
83.	The Tribunal is satisfied due to the inadvertent nature of the conduct, the particularly unique circumstances of Ms Lloyd at the time of the conduct and Ms Lloyd’s insight and remorse developed over a period of seven years, that specific deterrence is a very minor factor in the determination in this matter. The Tribunal finds that Ms Lloyd is very unlikely to engage in such conduct in future. A reprimand is sufficient in this case for the purpose of specific deterrence.
Evidence of character and past disciplinary history
84.	The Tribunal was not referred to any previous disciplinary proceedings in the Tribunal against Ms Lloyd. 
85.	Ms Lloyd relied upon two written references. Neither reference indicates that the writer was aware of the allegations in the present proceeding. The first reference was from her team leader at the community health service, which states, in part, that Ms Lloyd:
… has always demonstrated a high level of professionalism and commitment to supporting our consumers to improve their quality of life. Consumer feedback about both her individual and group work has been positive, with consumers often speaking of the positive impact that her work has had on their lives.
… Belinda has consistently demonstrated high quality work practices, respectful working relationships with consumers and other staff and a genuine commitment to ensuring that consumers are provided with services that seek to strengthen and improve their day to day life experiences.
86.	The second reference was from a counsellor working in the same regional area as Ms Lloyd at the relevant time. The reference relevantly states that Ms Lloyd is:
… an incredibly selfless person who never fails to comport herself with integrity. … I have found her to be a very clear communicator and always fair, compassionate and considerate. 
… I have been struck by her dedication to supporting her clients, in particular I note her desire to ensure support for the disadvantaged in our local community. … I have always been impressed by the depth of her thoughtfulness and consideration of her clients’ situations and her capacity to self-reflect. …
Guilty plea
87.	Early in the Tribunal process, Ms Lloyd formally accepted the allegations and particulars as correct. She only contested her level of knowledge and intention regarding the conduct. Ms Lloyd made admissions in bringing the matter to the attention of the Board. These actions go to her credit.
Other mitigating factors 
88.	The Tribunal has discussed above the issue of delay in disciplinary proceedings being commenced and finalised. 
Previous cases
89.	The Tribunal accepts that caution should be exercised in drawing conclusions as to determinations in previous cases, as each case must be decided on its own merits and the appropriate determination to protect the public is likely to be different in each case. The Tribunal was assisted by the previous cases raised by the Board as to the characterisation and determinations imposed where similar conduct was found to have occurred. The Tribunal notes the submission of the Board that such conduct as proven in this case, would often lead to a suspension of registration of a period of between one to three months. This appears to be correct.
Appropriate sanction
90.	The Tribunal has taken in to account the above matters.
91.	The Tribunal considers that due to the seriousness of the proven conduct and for the remaining need for specific deterrence, a reprimand should be imposed on Ms Lloyd to show that the conduct is completely unacceptable. A reprimand is a serious consequence.
92.	As the Board only seeks a reprimand in this case, no more needs to be said to dispose of this matter. However as indicated above the Board sought an indication of the potential determination, if Ms Lloyd was still registered as a health practitioner. 
93.	The Board had proposed in the SAFFD that a six week suspension be imposed on Ms Lloyd. The Board proposed in its supplementary submissions that conditions be imposed on Ms Lloyd’s registration for her to provide the Board with a copy of a certificate of currency for insurance each year and to provide the Board with the name of her insurance company and an acknowledgment that the Board may contact the insurer for verification.
94.	In relation to the proposed suspension, the Tribunal accepts that a practitioner who fails to maintain professional indemnity insurance for a long period, such as occurred in this case, and who fails to correctly declare their professional indemnity insurance status to the Board in renewing their registration, would often have imposed upon them a period of suspension of registration of between one to three months.
95.	However, each case must be judged on its own facts and merits. In this case, Ms Lloyd had insight at the time she notified the Board of the conduct in June 2017, and has since developed very clear and genuine insight. Ms Lloyd has experienced serious professional repercussions from the conduct as discussed above and will also have the reprimand imposed on her. The Tribunal is not satisfied that there is any more work to do in this case for a determination of a suspension of registration for the purposes of specific deterrence or protection of the public. Ms Lloyd is very unlikely to engage in similar conduct in future.
96.	Due to the exceptional delay in this case, the Tribunal is not satisfied that there is any work for general deterrence to do in this case. The profession is unlikely to be deterred by a determination of a period of suspension delivered after such a long delay by the Board. 
97.	Nor is the Tribunal satisfied that the reputation of the profession is relevant to the making of a determination in this case. The reputation of the profession is affected over a long period of time by a variety of matters. In this case, the imposition of a suspension seven years after the conduct was reported to the Board is unlikely to assist to uphold the reputation of the profession.
98.	The Tribunal considers that the imposition of a six week suspension of Ms Lloyd’s registration in the circumstances of this case, would have been a punishment, not for the legitimate purposes of a determination. The Tribunal therefore would not have imposed a period of suspension on Ms Lloyd, if such a determination had been open to it. This is not to excuse Ms Lloyd’s conduct. Her conduct was serious and in many circumstances would have warranted a suspension of registration measured in months. 
99.	In relation to the proposed conditions on registration for the verification of professional indemnity insurance being held by Ms Lloyd, such a condition can be protective of the community where a practitioner has failed to maintain professional indemnity insurance. In this case, the Tribunal would not have been satisfied that such a condition was required, as it would have been satisfied that Ms Lloyd would comply with her obligations in future, due to her genuine insight and remorse, the long period of reflection and the unnecessary career damage she has experienced. The Tribunal would therefore not have been satisfied that it should impose such a condition on Ms Lloyd’s registration. The Tribunal also had concerns about the Board seeking such a condition in addition to the determination which the parties had agreed to seek in the SAFFD. 
Conclusion 
100.	The Tribunal has therefore decided that the appropriate determination in this matter is to reprimand Ms Lloyd.

N Campbell 
Member 	P Barry
Member	
	M Bylhouwer 
Member	

Schedule 1

NOTICE OF ALLEGATIONS
The allegations in respect of RN Belinda Lloyd referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Nursing and Midwifery Board of Australia (Board) pursuant to section 193(1)(a) of the Health Practitioner Regulation National Law (National Law) are:
1. 	That RN Lloyd engaged in:
a. 	Professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (c) of section 5 of the National Law; and/or
b. 	Unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, between at all material times until at least 20 June 2017, RN Lloyd failed to maintain any or  appropriate Professional Indemnity Insurance (Pll) arrangements in accordance with the Board's registration standards and in contravention of section 129 of the National Law.
PARTICULARS
The particulars include, but are not limited to:
i. 	At all material times, RN Lloyd held registration with the Australian Health Practitioner Regulation Agency (Ahpra) as a registered nurse
ii. 	Between on or around June 2014 to on or about October 2015, RN Lloyd:
1. 	Was registered with Eastern Melbourne Medicare Local to deliver mental health services; and
2. 	Offered services under the Commonwealth Government Access to Allied Psychological Services (ATAPS) program.
iii. 	Between on or around October 2015 to on or about July 2017, RN Lloyd:
1. 	Was registered with Eastern Melbourne Primary Health Network to deliver mental health services; and
2. 	Offered services under the Commonwealth Government Access to Allied Psychological Services (ATAPS) program.
iv. 	From at least June 2014 until on or about July 2017, RN Lloyd practised as a registered nurse providing mental health services.
v. 	From 3 May 2007 until on or about 23 May 2013, RN Lloyd held Pll  cover pursuant to group policy cover obtained via the Health and Community Services Union (HACSU).
vi. 	On or about 23 May 2013, RN Lloyd ceased to hold Pll through HACSU.
vii. 	At all material times from on or about 23 May 2013 until at least 20 June 2017, RN Lloyd did not hold a policy of professional indemnity insurance.
viii. 	The National Law provides that, among other things:
1. 	A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate Pll arrangements are in force in relation to the practitioner’s practice of the profession (section 129(1)).
2. 	A contravention of section 129(1) is behaviour for which health, conduct, or performance action may be taken (section 129(3)).
ix. 	The Board’s Code of professional conduct for nurses (Code) was in force between 7 May 2013 and 28 February 2018.
x. 	The Code required that, among other things:
1. 	Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing (2).
2. 	Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws (Conduct Statement 3.1).
xi. 	The Board’s Professional indemnity insurance arrangements registration standard (Previous Standard) was in force between 10 January 2012 and 1 June 2016.
xii. 	The Previous Standard provided that, among other things:
1. 	Nurses must not practice their respective profession unless they are covered by appropriate Pll arrangements.
2. 	Nurses, whether employed or self-employed, unless exempted under the National Law, require Pll arrangements which covers the full scope of their practice.
3. 	It is the responsibility of nurses and midwives to understand the nature of the cover under which they are practising.
4. 	Self-employed nurses are required to have run-off cover.
xiii. 	The Board’s Registration Standard: Professional Indemnity Insurance (Current Standard) came into force from 1 June 2016.
xiv. 	The Current Standard provides that, among other things:
1. 	Practising nurses must be covered by their own or third party Pll
arrangements that meet the requirements of the Current  Standard, including:
a. 	Pll cover for all aspects of their practice; and
b. 	Pll cover for all locations where they practise.
2. 	Pll cover must include civil liability cover, appropriate retroactive cover for otherwise uncovered matters arising from prior practice, and automatic reinstatement, or the equivalent of these three forms of cover under third party Pll arrangements.
3. 	Practising nurses who take out their own Pll insurance should ensure that they take our adequate and appropriate insurance including professional indemnity cover.
XV. 	RN Lloyd’s conduct was in breach of the National Law, the Code, the Previous Standard, and the Current Standard.
2.	That RN Lloyd engaged in:
a. 	Professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law; and/or
b. 	Unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;
in that, between 16 May 2014 and 22 May 2017, RN Lloyd falsely and/or misleadingly declared on yearly registration renewal forms that she complied with the Board’s registration requirements with respect to Pll cover.
PARTICULARS
The particulars include, but are not limited to:
i. 	The Board repeats the particulars at paragraphs 1(i) to 1 (vii) above.
ii. 	RN Lloyd submitted to Ahpra applications for renewal of her registration as a registered nurse on:
1. 	30 May 2013.
2.	16 May 2014.
3. 	4 May 2015.
4. 	5 May 2016.
5. 	22 May 2017.
iii. 	On each occasion that RN Lloyd submitted applications for renewal of her registration as a registered nurse, she submitted the following declarations (declarations):
1. 	That during her previous period of registration, she had practised in accordance with the requirements of the Board’s Pll arrangements registration standard when practising the profession of nursing in Australia.
2. 	That if her registration was renewed, she committed to practise  in accordance with the requirements of the Board’s Pll arrangements registration standard when practising the profession of nursing in Australia.
iv. 	The declarations were false.
v. 	RN Lloyd knew or ought to have known that the declarations were false.
vi. 	The National Law provides that, among other things:
1. 	An application by a health practitioner for renewal of registration must include or be accompanied by a statement that includes, among other things, a declaration by the health practitioner that:
a. 	The health practitioner has not practised the health profession during the preceding period of registration without appropriate professional indemnity insurance arrangements being in place in relation to the health practitioner (section 109(1 )(a)(iv)); and
b. 	If the health practitioner’s registration is renewed the applicant will not practise the health profession unless appropriate professional indemnity insurance arrangements are in place in relation to the health practitioner (section 109(1)(a)(v)).
vii. 	The Board’s Code of professional conduct for nurses (Code) was in force between 7 May 2013 and 28 February 2018.
viii. 	The Code required that, among other things:
1. 	Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing (2).
2. 	Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws (Conduct Statement 3.1).
ix. 	The Board’s Professional indemnity insurance arrangements registration standard (Previous Standard) was in force between 10 January 2012 and 1 June 2016.
x. 	The Previous Standard provided that, among other things:
1. 	When applying for registration or renewal of registration, nurses must declare that they will not practise in their profession unless appropriate Pll arrangements are, or will be, in place while the practise nursing.
2. 	Nurses, whether employed or self-employed, unless exempted  under the National Law, require Pll arrangements which covers the full scope of their practice.
xi. 	The Board’s Registration Standard: Professional Indemnity Insurance (Current Standard) came into force from 1 June 2016.
xii. 	The Current Standard provides that, among other things, that when nurses apply to renew their registration, they must declare that:
1. 	During the preceding period of registration, they practised the profession in accordance with the requirements of the Current Standard.
2. 	They will not practise the profession unless they have Pll arrangements in place that meet the Current Standard.
xiii. 	RN Lloyd’s conduct was in breach of the National Law, the Code, the Previous Standard, and the Current Standard.