VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No Z235/2023	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law (Victoria) Act 2009, section 196 – in July 2020, a registered nurse on duty in an aged care facility attended a surprise baby shower for himself and his wife – practitioner was unaware of the party before he arrived and stayed for only five minutes – practitioner failed to disperse the party, remove unauthorised persons from the facility and report the baby shower to relevant managers – subsequent COVID-19 outbreak at the facility – parties’ agreed position on facts and characterisation – agreed position as to determinations. 	

APPLICANT	Nursing and Midwifery Board of Australia 	
RESPONDENT	Denis Baniqued	
WHERE HELD	Melbourne	
HEARING TYPE	In person hearing 	
BEFORE	A. Dea, Senior Member 
P. Barry, Member
M. Bylhouwer, Member	
DATE OF HEARING	24 October 2024	
DATE OF ORDER 	24 October 2024	
date of reasons	31 October 2024	
CITATION	Nursing and Midwifery Board of Australia v Baniqued (Review and Regulation) [2024] VCAT 480	

Orders
1	The applicant is granted leave to file the Amended Notice of Allegations.
Having found the respondent engaged in one instance of professional misconduct, under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Tribunal orders by consent:
2	Under section 196(2)(a) of the National Law, the respondent is reprimanded.
3	Under section 196(2)(d) of the National Law, the respondent’s registration is suspended for one month, commencing today.
4	Under section 196(2)(b) of the National Law, the conditions in Schedule A to these orders are imposed on the respondent’s registration
5	Under section 196(3) of the National Law, the review period for the conditions in order 4 is three months.
6	Reasons to follow.

A. Dea
Senior Member and Presiding Member	P. Barry
Health Practitioner Member	M. Bylhouwer
Health Practitioner Member	

APPEARANCES:		
For Applicant	Ms M. Isobel, counsel 	
For Respondent	Ms D. Price, counsel	

Schedule A
Undertake education 
1	Within 14 days of the notice of the imposition of these conditions, the respondent must, on the approved form (HPN24), nominate for approval by the Nursing and Midwifery Board of Australia an education course, assessment or program (the education) addressing the topics required. 
2	Mr Baniqued must ensure: 
(a)	the nomination includes a copy of the curriculum of the education 
(b)	the education consists of a minimum of one hour on each of the following topics: 
(i)	accident/incident reporting; and 
(ii)	leadership in the nursing profession. 
3	Within three months of the notice of the Board’s approval of the education, Mr Baniqued is to provide: 
(a)	Evidence of successful completion of the education; and 
(b)	A reflective report demonstrating, to the satisfaction of the Board, that Mr Baniqued has reflected on the issues that gave rise to this condition requiring that he undertake education and how Mr Baniqued will incorporate the lessons learnt in the education into his future practice. 
4	All costs associated with compliance with the conditions on their registration are at Mr Baniqued’s own expense. 
5	The review period for the condition is three months.

Reasons
1	On 16 July 2020, Denis Baniqued was working as a registered nurse at Epping Gardens Aged Care Facility.  His wife also worked at Epping Gardens as a carer.  They were expecting their first child.
2	Entirely unbeknownst to them, some of their nursing colleagues decided to hold a surprise Baby Shower for them while they were both on shift.  Those colleagues invited others to attend and arranged for food, gifts and balloons to be brought in.  Some of those who were invited were not working on 16 July 2020 but they attended anyway.  One of the nurses brought their partner along as he had previously worked at Epping Gardens.
3	Baniqued was having a busy shift as the registered nurse responsible for areas on level 1 of Epping Gardens.  They were short-staffed and the electronic medical record program they used (called E-Case) had crashed.  He was working with IT support to fix E-Case as no one could input notes or data about the residents while it was down.
4	At about 10 pm, Baniqued saw his wife on level 1 and thought that was unusual as she usually worked on the ground floor and he was expecting her to be going home.  He was called to a vacant resident room and found the Baby Shower was going on.  His wife was already there (as someone had called her in too) and she had been given the presents and balloons.
5	There was no dispute that, until the moment he walked into the room, Baniqued was unaware of the Baby Shower.  There was also no dispute that Baniqued remained in the room for no more than five minutes (quickly having something to eat as he had not had a meal break all shift) and that he told staff from the unit he supervised that they were to go back to work.
6	What Baniqued did not do was disperse the gathering, ensure the staff who were not on shift and other unauthorised visitors left the premises and report the gathering to another registered nurse, the Director of Nursing or management.  Those three actions were essential because, on 16 July 2020, Melbourne was subject to a COVID-19 pandemic lockdown.  The Baby Shower was not permitted under the applicable Chief Health Officer direction.  There were no vaccines for COVID-19 at that time.
7	Shortly after the Baby Shower, there was an outbreak of COVID-19 at Epping Gardens.  There is no evidence that the Baby Shower was the source of the outbreak.  Of the 119 residents at Epping Gardens, 103 were infected with the virus.  Tragically, 38 of those residents died.  Eighty six staff, including Baniqued and his wife, were infected too.
8	The Nursing and Midwifery Board of Australia referred Baniqued to the Tribunal, not because he attended the Baby Shower (or had any responsibility for it being held), but because he did not take the three actions mentioned above and so mitigate the risk of transmission of the COVID-19 virus within Epping Gardens.  The sole Allegation made against Baniqued concerned those specific failures.
9	By the time of the hearing before us, the parties had produced an Agreed Statement of Facts, Findings and Determinations.  Baniqued admitted all relevant facts and agreed that his conduct constituted professional misconduct.  He also agreed that he should be reprimanded, have his registration suspended for one month and that he ought to be required to complete education on accident and incident reporting and leadership in the profession.
10	We were satisfied that the parties’ proposed findings and determinations under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law) were appropriate after considering the whole of the material before us, with a focus on the specific shortcomings in Baniqued’s conduct.  
The factual circumstances, Allegation and Agreed Statement
11	The following comes from the parties’ Agreed Statement, the Allegation, the written submissions relied on by the Board and Baniqued (respectively, the Board’s Submissions and Baniqued’s Submissions) and other material in the parties’ joint Tribunal Book (TB). 
Baniqued’s personal and professional circumstances and registration status 
12	Baniqued was born in the Philippines, where he qualified as a nurse in 2009.  In 2012 he became a registered nurse in Australia, upon completion of a Bachelor of Nursing at Latrobe University. 
13	Baniqued obtained general registration as a nurse on 19 April 2012 and remains registered now. 
14	Baniqued’s career has been primarily in aged care.  In May 2019 he commenced working at Epping Gardens where the conduct on 16 July 2020 occurred. 
15	Baniqued has not returned to work since 21 July 2020.  That is partly due to a workplace injury he suffered in around May/June 2020 (before the Baby Shower) and partly due to the long-COVID he has suffered since contracting COVID-19 soon after the events of 16 July 2020.  
16	Baniqued hopes to return to nursing in future when well enough to do so, with a preference to work as a specialist wound care nurse. 
The notification and the Board’s investigation and referral
17	On 11 August 2020, the Board received a notification from Epping Gardens which said as follows:
During the period of COVID19 stage three restrictions a registered nurse in charge allowed an unauthorised baby shower in a vacant residential aged care room.  The nurse in charge was the father to be, three other nurses not on duty entered and exited the building several times and without a mask or sanitising their hands.  Bringing food, drinks, gifts and balloons in to the home.  This occurred on the 16/7/2020 where later all attendees of the unauthorised party tested positive for COIVID -19 at [Epping Gardens].
18	While it was correct that Baniqued, his wife and at least two other nurses who attended the Baby Shower later tested positive for COVID-19, one nurse who attended did not. 
19	On 16 August 2020, the Board decided to commence an investigation into the notification. 
20	Around two and a half years later, on 13 January 2023, the Board determined to refer Baniqued to the Tribunal because it reasonably believed that he had engaged in conduct that constituted professional misconduct. 
21	The referral was received at the Tribunal on 28 March 2023. 
The COVID-19 outbreak at Epping Gardens and the Commonwealth review
22	Before turning to the Allegation before us, it is convenient to contextualise the COVID-19 outbreak at Epping Gardens in July 2020 and the subsequent independent review into that outbreak.
23	As stated above, the July 2020 COVID-19 outbreak led to 103 of the 119 Epping Gardens’ residents being infected with the virus.  Tragically, 38 of those residents died.  Further, 86 staff were infected and they included Baniqued and his pregnant wife.  
24	The Commonwealth Department of Health commissioned an Independent Review into the outbreak at Epping Gardens (and at another aged care facility, St Basil’s Home for the Aged).  That Review was conducted over a 10-week period from September to November 2020 and its findings were published on 30 November 2020.  The report concluded that the source of the infection of the outbreak at Epping Gardens could not be established.
25	Nevertheless, there can be no doubt that all of the circumstances surrounding the outbreak and the terrible consequences for so many residents and their families had a significant and lasting impact on all involved.  
26	The Independent Review included the following: 
These stark numbers do not begin to convey the trauma and grief suffered by all residents, whether or not they developed COVID-19, and the enormous impact on their families.  They do not account for the distress of staff members, who knew and had cared for residents for long periods but were quarantined and obliged to leave them in the care of ‘strangers’.  Many of the agency workers who replaced quarantined staff, came with little, if any, preparation or experience in aged care and were also deeply traumatised by the experience.
The Allegation 
27	The overarching Allegation before us was that Baniqued engaged in 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 unprofessional conduct (within the meaning of the definition of unprofessional conduct in section 5 of the National Law): 
in that, on 16 July 2020, [Baniqued] failed to meet his professional obligations to take reasonable steps to mitigate the risk of transmission of the COVID-19 virus while working at [Epping Gardens] in circumstances where:
1.	he attended a baby shower that was hosted at Epping Gardens; 
2.	the baby shower was a gathering in contravention of the Care Facilities Directions (No 6) (Care Facilities Directions); and 
3.	he failed to: 
a.	take steps to disperse the baby shower, as a registered nurse in charge of the first floor and/or a unit at Epping Gardens during his shift; 
b.	immediately ensure that any unauthorised staff and/or visitors attending the baby shower had left, or were removed from, Epping Gardens, as a registered nurse in charge of the first floor and/or a unit at Epping Gardens during his shift; and/or 
c.	report the baby shower in a timely manner to any other nurse in charge and/or the Director of Nursing and/or management of Epping Gardens.
28	The particulars of the Allegation were as follows:
•	At all material times, Baniqued was a registered nurse and was employed at Epping Gardens;
•	On or about 1 July 2020, under the Public Health and Wellbeing Act 2008 (Vic), the Victorian Government introduced the Care Facilities Directions; 
•	The Care Facilities Directions applied to Epping Gardens, in circumstances where Epping Gardens is a residential aged care facility; 
•	On 16 July 2020, Mr Baniqued was working his rostered shift at Epping Gardens, attended the Baby Shower and failed to: 
o	take any steps to disperse the Baby Shower, when he was in a position to do so as a registered nurse in charge of the first floor and/or a unit during his shift at Epping Gardens; 
o	immediately ensure that any unauthorised staff and/or visitors attending the Baby Shower had left, or were removed from, Epping Gardens when he was in a position to do so as a registered nurse in charge of the first floor and/or a unit during his shift at Epping Gardens; and/or 
o	report the Baby Shower in a timely manner to any other nurse in charge and/or the Director of Nursing and/or management of Epping Gardens; and 
•	In circumstances where the Baby Shower was not a permitted gathering and was in contravention of the Care Facilities Directions, in that other nurse(s) and/or persons in attendance: 
o	were not rostered to work when they entered Epping Gardens for the Baby Shower; 
o	did not meet the definition of ‘worker’ (clause 6), ‘visitor’ (clause 7) and/or ‘resident’ (clause 10) in the Care Facilities Directions when they entered Epping Gardens for the Baby Shower; and 
o	So they were prohibited from entering Epping Gardens under clause 5 of the Care Facilities Directions.
29	As referred to earlier, there was no dispute that Baniqued only stayed at the Baby Shower for about five minutes.  He had not had a meal break that night and so he took some chicken from the supplied food, ate that, told the staff from his unit to return to work and then returned to his duties.
Baniqued’s admissions 
30	While prior to the hearing there was a dispute about the extent of Baniqued’s responsibilities on the night – ranging from whether he was ‘in charge’ of the whole facility, the first floor or one unit – we were informed that there was no dispute that he was not responsible for the whole facility and that the Board no longer pressed for a finding that he had responsibility for a specific area.  It was for that reason that the Allegation referred to the matter in the alternative in respect of ‘the first floor’ and ‘a unit’. 
31	Through the Agreed Statement Baniqued made admissions to the conduct which was the subject of the Allegation before us.  
32	We record that, when Baniqued was first given an opportunity to respond to the Board’s investigation in September 2020, he:
•	Confirmed he had attended the Baby Shower after he was called to go to the relevant room;
•	He only stayed for about five minutes;
•	He reminded staff on his unit that they needed to return to the unit as soon as possible;
•	He had nothing to do with organising the event and the first he knew of it was when he was called to the room; and 
•	He did not believe that anything he had done fell below the expected standard of a registered nurse.
33	At an interview with the Board’s investigators held on 10 May 2022, Baniqued confirmed the above admissions.  He also stated that he was aware one of the attendees was not working on that day and further that he was ‘surprised’ to see her in those circumstances.  
34	There was no discussion about the question of standards at the May 2022 interview, however it was addressed in an undated Reflection prepared by Baniqued (that we assumed was prepared in around March 2023).  He said as follows:
Good day to the one reading this, I have experienced and have watched an unfolding of events that have been dreadful to bear, being an accidental bystander in the ordeal that have passed, but still unforgotten and still could be causing hurt to all involved.
My heart goes to all of those that have been affected, the families, who are mostly the main body that was affected by what has transpired, the other staff members who had no idea what was going on, and to my residents that have been affected and have passed on, and their families that have also been part of the care circle that were severely and directly affected by what occurred after.  We are all directly affected in some way or another, and it is dreadful to have to part ways with people in that manner.
I regret in my heart and deepest of conscience, even as I accidentally have been present in this incident, that as one of the people that was tasked to provide wholesome, wholistic, and the best care possible, have failed in one of my duties as a nurse in the facility.  I have failed to report post-incident to my supervisors so that we could have taken better care of the people and may have had better insight in taking adequate preventative measures from the catastrophic event that occurred sometime after.
Seeing all of this unfold in front of me, I am filled with sympathy, and remorse for the fact that I could have done something for everyone, yet I have failed to do so.  I truly am trying to convey my sincerest apologies for having failed to report this incident to my supervisors, and I have not once have forgotten this mistake that will haunt me for the rest of my life.  We could all speculate how things may have turned out, if only the correct thing was done.  Sadly, the incident has already passed, and I have deeply lamented this as I have witnessed the devastation to all involved and the faces and the names of the people I have known and have cared for is still part of my memory and their families that have placed their trust in me that I feel that I have shattered.
Going forward, I have truly learned a lesson, that in the future, having incidents, may it be minor or major, should follow proper procedure, and have a proper report that follows it.  I still would like to convey my sincerest apologies to all the people that were involved, the families and staff, and I hope they forgive me for not following this simple, but severely important part of my responsibility as a nurse at the facility.
Findings of fact
35	The Board had the onus of proving all facts in the Allegation.  
36	We were required to make our findings of fact on the balance of probabilities, comfortably satisfied they are open on the evidence, taking into account the seriousness of the allegations and the consequences of findings such as these.
37	Having regard to the Agreed Statement, including Baniqued’s admissions in the materials referred to above, and the materials in the TB, we were comfortably satisfied that all facts contained in the Allegation were proven.
38	In particular, we were satisfied that Baniqued failed to: 
•	Take steps to disperse the Baby Shower; 
•	Immediately ensure that any unauthorised staff or visitors attending the Baby Shower had left or were removed from Epping Gardens; and 
•	Report the Baby Shower in a timely manner to any other nurse in charge, the Director of Nursing or management of Epping Gardens.
Characterisation of the proven conduct 
The law 
39	Section 5 of the National Law provides that professional misconduct, of a registered health practitioner, includes: 
(a) 	unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience;
(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.
40	The definition is inclusive.  A practitioner may engage in professional misconduct which does not fit neatly into one or other of those categories.  Further, the definition does not preclude more than one sub-paragraph applying to particular misconduct.
41	The definition of ‘unprofessional conduct’, relevant to this case, is:
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, 
42	Characterising proven conduct is an objective assessment which looks towards the conduct in light of the applicable standards and relevant definitions, rather than matters arising later in time, such as remorse, insight and rehabilitation.
43	In relation to a finding under paragraphs (a) of the definition, the Tribunal must assess the degree of seriousness of the practitioner’s conduct having regard to the extent to which the conduct departs from the proper standards of professional conduct of a registered nurse.  The gravity of professional misconduct is not measured by reference to the worst cases, but by the extent to which it departs from the proper standards. 
The agreed position and the parties’ submissions 
44	The parties jointly submitted that the proven conduct ought to be characterised as constituting professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct contained in section 5 of the National Law.
45	The Board’s submissions relied on the following matters in respect of that proposed characterisation:
•	The parts of the professional codes contained in Attachment 1 to these Reasons;
•	As at 16 July 2020, the Victorian population was unvaccinated for COVID-19.  The body of scientific and public health knowledge of the health risks of COVID-19 was still developing.  In particular, the elderly population was exceedingly vulnerable; 
•	Baniqued, in performing the role as registered nurse with responsibilities at Epping Gardens on the night, was required to both set the standards of conduct within the workplace and protect a ‘uniquely vulnerable patient group’; and 
•	Baniqued’s conduct was at odds with the expectations of the community which include expectations that nurses will be trustworthy and will protect the health and safety of vulnerable people in their care. 
46	The Board referred us to the Tribunal’s decision in Nursing and Midwifery Board of Australia v Anni (Anni) which concerned three registered nurses who attended the Baby Shower when they were not rostered to work.  As we understood it, registered nurse Anni was not rostered to work on the relevant night and was the person Baniqued identified as such when he arrived at the Baby Shower.  The other practitioners, Carpio and Grodzinski, were a couple and arrived together.  Carpio was not rostered to work that night and Grodzinski had ceased working at Epping Gardens at the time.  All three had received invitations to the Baby Shower and, to varying degrees, attended because they felt they should.  
47	Relevant to the seriousness of their conduct, the Tribunal said:
. . . The conduct was serious.  It was contrary to the health, welfare and safety of residents at Epping Gardens.  Already there had been outbreaks of COVID-19 at residential aged care facilities in Victoria.   The Care Facilities Directions and the Stay at Home Directions were clear.  Even though there is no evidence that the respondents were responsible for the outbreak at Epping Gardens, there was risk inherent in their behaviour.  [The Board’s counsel] noted the trauma to residents and their families but she acknowledged that it was likely shared by the respondents and their professional colleagues at Epping Gardens . . .
48	As indicated by the Agreed Statement and Baniqued’s Reflection, he admitted his professional conduct represented a substantial departure from the standards to be expected of a registered nurse with responsibilities in supervising staff and protecting vulnerable residents living in aged care.
Findings on characterisation
49	When making our findings on characterisation, we were mindful that Baniqued’s breaches of standards did not extend to going into the relevant room and being there for around five minutes.  He had no role in planning the Baby Shower and did not know it was happening until he arrived.  In that way, his conduct differs from that in Anni.
50	We agreed with the Board’s submissions as to the nature and seriousness of the conduct.  We adopt the Tribunal’s description of the conduct in Anni set out above and noted the outcomes of the Independent Review.  
51	As is apparent from the parts of the codes in Attachment 1, all nurses are expected to observe the law.  They have a special responsibility to promote the principles of public health, to participate in efforts to promote the health of communities and take necessary steps to protect their patients and the wider community.  Nurses share with society the responsibility for initiating and supporting action to meet the health and social needs of the public, in particular those of vulnerable populations.
52	The above expectations apply when nurses are working in their profession and in their personal lives.  
53	All nurses are expected to act when something goes wrong.  They are expected to rectify the problem where possible and, where a person’s safety is at risk, to intervene.  Those responsibilities include escalating concerns when needed.  Those responsibilities are heightened for a nurse in a leadership role.
54	The Independent Review said the following in respect of the wider role of leadership in the response to the July 2020 COVID-19 outbreak:
Leadership and effective management are the most significant factors in preventing and controlling any emergency but they faltered at both St Basil’s and Epping Gardens, in the context of COVID-19 outbreaks which were already established before effective responses were mounted.  Notwithstanding this challenge, many people who worked in the [residential aged care facilities] or were involved in their multifaceted outbreak responses, faced situations they had never experienced before or for which they were (and/or felt) inadequately prepared.  Their commitment and persistence helped eventually bring the situation under control but tragically, for some residents and their loved ones, it was too late.  Clinical governance was absent (at worst) or limited (at best);
55	While those comments refer to the events after the Baby Shower, they give an insight into the role good leadership plays in an emergency.  
56	As Baniqued’s counsel submitted at the hearing, leadership sometimes calls for a person to stand up to others or to say things which might be uncomfortable or difficult for others to hear.  
57	While the individual nurses had their own responsibilities under the Code of Conduct, Baniqued’s were of a higher order on the night.  His failure to identify the need to stop the Baby Shower and disperse all of the attendees (not just those he had immediate responsibility for) was a substantial departure from the standards expected of a nurse of his experience and who held a leadership position on the night.  He ought to have ensured people who were not entitled to be at Epping Gardens that night left and reported the Baby Shower to his superiors given the risk it presented to the residents and staff.
58	In the above circumstances, we agreed that Baniqued’s conduct fell within paragraph (a) of the definition of professional misconduct in the National Law.
Determinations
The law 
59	Section 196(2) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven.  They include imposing a reprimand, cancellation of registration, suspension of registration and the imposition of conditions and the imposition of a prohibition order.
60	The well-established principles for consideration when making determinations under the National Law are as follows.
61	The Tribunal’s primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct.  Determinations also assist to maintain proper ethical and professional standards to protect the public and the profession in the sense of maintaining stature and integrity in the eyes of the public.  The Tribunal is also required to, in appropriate cases, make determinations which will deter the individual health practitioner from engaging in the same or like conduct again and/or which serve as a warning to other health practitioners that engaging in the conduct will bring serious consequences – the latter is known as general deterrence. 
62	In some cases, specific deterrence is of lesser importance because a practitioner has been rehabilitated, is retired or has otherwise agreed not to practice again.  Despite that, general deterrence may call for the imposition of a determination which acts as a warning to other members of the profession that like conduct may lead to significant consequences. 
63	It is understood that, although determinations are not intended to be punitive, that can have that effect on individual practitioners. 
64	Personal matters such as shame, personal ordeal, and financial difficulty are of little relevance except insofar as they contribute to the specific deterrence of the practitioner.
65	The assessment of the ongoing risk posed by the practitioner should be central to the imposition of a determination.  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.  Insight can include 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.
66	Any form of official censure is of consequence. A reprimand should not be considered a ‘slap over the wrist’:  it puts the public and the relevant profession on notice that the practitioner has failed to meet the standards of the profession and is a means by which the Tribunal admonishes the practitioner for their proven conduct.  
67	It is well understood that, although it is a matter for the Tribunal to be satisfied that any agreed proposed disciplinary outcomes are appropriate, the fact of the parties’ agreement is a highly relevant matter to be taken into account.  Where the outcome is not arbitrary, reflects a carefully negotiated outcome and the parties have comparable capacity to understand and engage in those negotiations, the agreement is to be given significant weight.  Having had regard to the basis for the agreed position and all other material, the Tribunal must then decide if it is appropriate.
The agreed position and the parties’ submissions
68	The parties jointly proposed that:
(a)	Baniqued be reprimanded (under section 196(2)(a) of the National Law);
(b)	Baniqued’s registration be suspended for one month commencing on the date of our orders (under section 196(2)(d) of the National Law);
(c)	Conditions be imposed on Baniqued’s registration in the terms of those in Schedule A to our orders (under section 196(2)(b) of the National Law); and
(d)	Those conditions be subject to a three month review period (under section 196(3) of the National Law).
69	The conditions are directed at education on accident and incident reporting and leadership in the nursing profession. 
The Board’s Submissions 
70	The Board referred to the objective seriousness of the conduct which occurred during ‘an unprecedented challenge to Australia’s public health response to a global pandemic’ and when ‘frontline workers were crucial in maintaining the public’s confidence in the health system and public health response to COVID-19’. 
71	Baniqued, as a leader, was described as being in a ‘crucial position’ to set and enforce the standards expected by the community, the profession and vulnerable residents ‘reliant on his professional judgment to ensure a safe system of care at the facility’.  
72	The Board submitted that, even if the circumstances where ‘subjectively well intentioned’ the gravity of the conduct required a period of suspension.  Reference was made to Anni and the Tribunal’s observation that: 
. . . By our determinations we intend to signal to members of the nursing profession that serious adverse consequences will follow conduct of the kind that the respondents engaged in.  We intend to deter others from breaching applicable public health orders, or indeed from any conduct that would place vulnerable patients and others at risk, in the interests of maintaining professional standards and public confidence in the nursing profession and in the regulatory system.
73	At the hearing, the Board made plain that the determinations were not sought on the basis that specific deterrence was necessary.  
74	Rather, it was necessary to send a message of the kind referred to by the Tribunal above and in order to ensure that nurses and the community alike are aware that conduct which places patients at risk will not be tolerated, that the profession’s high standards will be upheld and that unacceptable conduct will attract regulatory reaction. 
75	The Board referred us to cases other than Anni that concerned conduct engaged in during the COVID-19 pandemic.  It has not been necessary for us to refer to them in light of the guidance offered by Anni and in the context of the parties’ agreed position.
76	In response to a question from us, the Board’s counsel stated that, if Baniqued was in a position to do so, he would be entitled to return to practise once the suspension period had ended, even if he had not completed all aspects of the education related conditions.  
Baniqued’s Submissions
77	Baniqued’s Submissions started by addressing Baniqued’s insight and remorse saying that he:
accepts, unreservedly, his failure to disburse the [Baby Shower], ensure that unauthorised persons left Epping Gardens and to report the [Baby Shower] to appropriate senior staff. 
[He] was proud to know each resident by name, and to recall immediately their care requirements, medications, likes and dislikes.  Some of these residents sadly died in the subsequent COVID-19 outbreak, and he feels grief at their passing. These thoughts and memories have been with [Baniqued] for over four years, and he was grateful to recently collect his thoughts in [the Reflection].
78	We were referred to two reports prepared by Baniqued’s treating psychologist, Suzy Larkins, dated 15 July 2021 and 22 March 2022.  Larkins had been treating Baniqued since 28 September 2020 over 27 sessions.  She had diagnosed him with chronic adjustment disorder with mixed anxiety and depressed mood.  
79	We were referred to the following passage from the March 2022 report:
Due to the nature of [Baniqued’s] compromised psychological and physiological status and the effect these conditions have on his ability to function and cope with daily requirements, presentation over time dictates that he is unable to engage in any type of work or study for the foreseeable future.  From both a psychological and physical perspective, [Baniqued’s] current prognosis remains as poor.  Given the severity and persistence of his symptomology he is likely to have ongoing incapacities as described.  The aforementioned impairments affect [Baniqued’s] capacity for social, academic and economic participation.
80	As noted earlier, despite his current circumstances, Baniqued’s goal is to return to work when approved to do so by his doctors.  Baniqued’s Submissions stated that he wished to specialise in wound care in the community as that ‘would allow him to continue to work with the elderly and draw upon his skills in one-on-one patient care and wound care’. 
81	We were provided with certificates showing that, in May 2023, Baniqued had completed several short on-line courses in the following topics:
•	Aged Care Quality Standards; 
•	Infection Prevention and Control; 
•	Serious Incident Response Scheme; 
•	Work Health and Safety; and 
•	Elder Abuse.
82	At the hearing we had a discussion about whether the content of some of the above courses might have covered the areas to be addressed under the conditions.  Baniqued’s counsel informed us he would be more than willing to undertake further courses, even if there was some overlap with those he had already completed. 
Decision on determinations
83	We had no difficulty concluding that the parties’ proposed determinations were appropriate, having regard to the material in the TB and the matters relied on by the parties as summarised above.
84	We agreed that specific deterrence was not a necessary consideration after having regard to Baniqued’s Reflection and having accepted that he is remorseful for and well understood the shortcomings in his conduct.
85	Instead, we focussed on general deterrence, the importance of maintaining the standards of the profession and community confidence in the profession. 
86	We agreed that Baniqued was to be reprimanded to serve as a public admonishment of his failure to meet the standards of a nurse of his experience and who had responsibilities to keep vulnerable residents and other staff safe from unnecessary exposure to the risk of contracting COVID-19 at a time when vaccines were not available and a lockdown was in place.
87	We agreed that a period of suspension was appropriate and a period of one month took into account his lack of knowledge of the Baby Shower and was properly focussed on the specific shortcomings in his response.  The period was imposed to send a message of the kind referred to earlier in these Reasons tempered by Baniqued’s complete understanding of his failings and his deep remorse, which included consequences for which he was not directly responsible.  
88	While a one month suspension may seem to be short, it was imposed for the above reasons.  We intend other practitioners to understand that, conduct of the kind Baniqued engaged in, can expect to be deprived of the opportunity to work.  The period of suspension which will be applied will depend on all of the circumstances and be directed at the purposes of determinations in light of the proven facts and the specific departure from standards.
89	We were satisfied that the conditions proposed by the parties would ensure that any current shortcomings in Baniqued’s understanding of his responsibilities as a nurse and as a leader will be addressed.  

A. Dea
Senior Member and Presiding Member	P. Barry
Health Practitioner Member	M. Bylhouwer
Health Practitioner Member	

Attachment 1
Codes of Conduct relied on by the Board
(vi)	The conduct of [Baniqued] set out at particular (v) is of a lesser standard than that which might reasonably be expected of [Baniqued] by the public or by [his] professional peers – and is inconsistent with:
(A)	the Board's 'Code of Conduct for Nurses' (in effect since 1 March 2018), which provides that:
2.1	Nursing practice
Nurses apply person-centred and evidence-based decision- making, and have a responsibility to ensure the delivery of safe and quality care. Nurses must:
…
b.	provide leadership to ensure the delivery of safe and quality care and understand their professional responsibility to protect people, ensuring employees comply with their obligations; and
…
2.4	Adverse events and open disclosure
… When something goes wrong, nurses must:
…
b.	act immediately to rectify the problem if possible, and intervene directly if it is needed to protect the person's safety. This responsibility includes escalating concerns if needed;
…
7.1 	Your and your colleagues' health
Nurses have a responsibility to maintain their physical and mental health to practise safely and effectively. To promote health for nursing practice, nurses must:
a.	understand and promote the principles of public health, such as health promotion activities and vaccination
…
7.2 	Health advocacy
… In advocating for community and population health, nurses must:
…
c.	participate in efforts to promote the health of communications and meet their obligations with respect to disease prevention including vaccination, health screening and reporting notifiable diseases.
…
(B)	the International Council of Nurses' 'Code of Ethics for Nurses' (adopted by the Board and applicable to all nurses in Australia from 1 March 2018, and in effect from 1 March 2018 to 9 November 2021), which provides that:
…
1.	Nurses and people
…
The nurse shares with society the responsibility for initiating and supporting action to meet the health and social needs of the public, in particular those of vulnerable populations.
…
The nurse demonstrates professional values such as respectfulness, responsiveness, compassion, trustworthiness and integrity.
…
2.	Nurses and practice
	…
The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance its image and public confidence.
…
The nurse strives to foster and maintain a practice culture promoting ethical behaviour and open dialogue.
3. 	Nurses and the profession
…
The nurse is active in developing and sustaining a core of professional values 
The nurse, acting through the professional organisation, participates in creating a positive practice environment and maintaining safe, equitable social and economic working conditions in nursing. 
… 
The nurse contributes to an ethical organisational environment and challenges unethical practices and settings.
4. 		Nurses and co-workers
…
The nurse takes appropriate action to safeguard individuals, families and communities when their health is endangered by a co-worker or any other person. 
The nurse takes appropriate action to support and guide co-workers to advance ethical conduct.
Element of the Code #1: NURSES AND PEOPLE	
Practitioners and Managers	Educators and Researchers	National Nurses Associations	
…	…	…	
Develop and monitor safety in the workplace.	…	…	

Element of the Code #2: NURSES AND PRACTICE

Practitioners and Managers	Educators and Researchers	National Nurses Associations	
Establish standards of care and a work setting that promotes quality of care.	…	…	
…	…	…	
Monitor and promote the personal health of nursing staff in relation to their competence for practice.			

Element of the Code #4: NURSES AND CO-WORKERS	
Practitioners and Managers	Educators and Researchers	National Nurses Associations	
…	…	…	
Develop workplace systems that support common professional ethical values and behaviour.	…	…	
Develop mechanisms to safeguard the individual, family or community when their care is endangered by health care personnel.	…	…