VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z593/2023	
CATCHWORDS	
Review and Regulation List – Two allegations concerning conduct of enrolled nurse while working at nursing home – Admissions as to allegation relating to theft from resident of nursing home and driving a vehicle while exceeding the prescribed concentration of alcohol – Partial admissions concerning alleged financial boundary violations with respect to resident – Whether Tribunal can be comfortably satisfied as to particulars of that allegation.	

APPLICANT	Nursing and Midwifery Board of Australia	
RESPONDENT	Geoffrey Templar	
WHERE HELD	Melbourne	
BEFORE	R Tang AM, Senior Member
M Archibald PSM, Member
M Bylhouwer, Member	
HEARING TYPE	Videoconference Hearing	
DATE OF HEARING	17 September 2024	
date of closing submissions	15 October 2024 (applicant)	
DATE OF ORDER and reasons	14 November 2024	
CITATION	Nursing and Midwifery Board of Australia v Templar (Review and Regulation) [2024] VCAT 1074	

findings
The Tribunal finds:
1	In respect of Allegation 1: On 1 November 2018, Mr Geoffrey Templar was found guilty of two criminal offences before the Magistrates’ Court of Victoria, namely theft and driving a vehicle while exceeding the prescribed concentration of alcohol.
2	In respect of Allegation 2: Between on or around 1 June 2017 and on or about 31 October 2017 Mr Templar failed to maintain the boundaries that should, and ordinarily do, delineate a nurse/patient relationship by engaging in professional and financial boundary violations in relation to Resident A.
Orders
1	The application is listed for a telephone directions hearing before Senior Member Tang starting at 9:30am on 13 December 2024.
2	The purpose of the directions hearing is to provide directions and make orders as may be necessary or appropriate for the future conduct of the proceeding, in terms of further hearing(s) as to the characterisation of the conduct and appropriate determinations to be made by the Tribunal in respect of the conduct the subject of the Tribunal’s findings.
3	The parties must be available to participate in the telephone directions hearing which may start at or after the scheduled start time and must remain available until the directions hearing ends.
4	The parties are directed to respond promptly to all registry requests for information (including about their access to technology) and to cooperate with VCAT’s requirements for the conduct of the directions hearing.
5	All contact with VCAT must include the VCAT case number, and the date and time of the directions hearing and be copied to all other parties (unless otherwise ordered).

R Tang, AM
Senior Member and Presiding Member	M Bylhouwer
Health Practitioner Member	M Archibald, PSM
Health Practitioner Member	

APPEARANCES:		
For Applicant 	Ms S Joosten of Counsel	
For Respondent	Mr G Templar, in person	

Orders in place under the open courts act 2013 (Vic)
On 17 September 2024, the Tribunal made the following orders under the Open Courts Act 2013 (Vic):
1	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the resident the subject of these proceedings, the notifier and any witnesses (other than the respondent) to be identified must not be published or otherwise disclosed.  For the avoidance of doubt, this order does not prevent references to the job title of a witness or the identification of the aged care home at which the resident resided.
2	This order applies throughout Australia on the basis that VCAT’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia.  The privacy of the people referred to in order 1 would be breached if persons living outside Victoria know or come to know their identity.
3	This order operates until the later of the death of all of the people referred to in order 1.

Reasons
1	By application made on 20 July 2023, the Nursing and Midwifery Board of Australia (‘Board’) referred two allegations under section 193 of the Health Practitioner Regulation National Law (Victoria) (‘National Law’) to the Tribunal concerning the conduct of an enrolled nurse, Mr Geoffrey Templar.  The allegations relate to: 
•	Mr Templar’s admissions to (and findings of guilt in respect of) theft from a resident at the nursing home at which Mr Templar was working and a subsequent drink driving offence (‘Allegation 1’); and
•	professional and financial boundary violations on the part of Mr Templar in his dealings with and on behalf of that resident (‘Allegation 2’).
2	As a result of the theft from the resident, Mr Templar resigned and/or was terminated from his role at the nursing home and, on 21 December 2017, his nursing registration was suspended (by way of immediate action under section 156 of the National Law).  
3	While Mr Templar has co-operated with the Board and the Australian Health Practitioner Regulation Agency (‘Ahpra’) throughout the investigation, he did not submit any material on which he sought to rely for the purposes of the hearing.  However, he did attend the hearing and elected to give evidence (and was cross-examined) in relation to certain particulars of Allegation 2 that he disputed, after the Board arranged for one of its witnesses (‘Facility Manager’) to attend the hearing (at short notice).
4	As a result of the manner in which the hearing proceeded, the Tribunal granted leave for the Board and Mr Templar to provide written closing and reply submissions as to the findings of fact to be made by the Tribunal having regard to the evidence of the Facility Manager and Mr Templar.  The Board provided its closing submissions on 15 October 2024 (‘BCS’), but Mr Templar did not provide any reply submissions by the date ordered.
5	For the reasons set out in these Reasons, the Tribunal is comfortably satisfied and finds that:
•	Allegation 1 is proven, as particularised.
•	Allegation 2 is proven, although not all of the particulars have been established.
Events at the nursing home in 2017
6	The following represents the uncontentious aspects of the allegations.
7	In 2017, Mr Templar was working as an enrolled nurse at an Aged Care Centre in Bendigo (‘Facility’).  His role involved caring for residents at the Facility, including an elderly man referred to in these reasons as ‘Resident A’.  When on duty, Mr Templar would assist Resident A with his showering and toileting and other personal care.
8	At some stage, Resident A requested that Mr Templar purchase alcohol and cigarettes for Resident A.  Mr Templar agreed to do so, and Resident A provided his credit card and pin to Mr Templar for this purpose.  Mr Templar admits that he used Resident A’s credit card to make purchases of alcohol and cigarettes for Resident A’s consumption, although he denies that any of these purchases were ‘unauthorised’ or involved purchases of alcohol, tobacco or other goods for Mr Templar’s own use or consumption.
9	Further, in or around June 2017, Resident A offered to allow Mr Templar to live in Resident A’s (vacant) home on a rent-free basis, pending its sale, provided that Mr Templar paid for the utilities and kept the home clean.  Mr Templar admits that he lived in Resident A’s home on a rent-free basis (and that this was inappropriate) but denies that his son also lived at the property or that he failed to comply with the agreement to pay for utilities.
10	In early October 2017, Resident A spoke to a personal care attendant (‘PCA’) at the Facility about his concerns with respect to aspects of the arrangements between himself and Mr Templar including that: 
•	Mr Templar had failed to return his credit card after completing a recent shop, as was normally the case;
•	Mr Templar had failed to pay the utilities while living in Resident A’s home (resulting in him receiving overdue letters and follow up calls); and
•	some money was missing on his credit card and his bank statements included transactions that he did not authorise and which he believed were made by Mr Templar.
11	The PCA raised these issues with the Facility Manager, who then recorded the matter in a file note.
12	On 10 October 2017, the Facility Manager convened a meeting with Resident A and Mr Templar at which Resident A’s concerns were discussed (‘October 2017 Meeting’).  The Facility Manager updated her file note to record those discussions, which culminated in an agreement by Mr Templar to return an antique Dutch lamp (‘the Lamp’) to Resident A, as well as to repay him the sum of $1,808.42 (relating to utilities, rubbish removal and some wine which was alleged not to have been delivered) in monthly instalments of $400 from November 2017 (‘October 2017 Agreement’).  While Mr Templar accepts that he attended the meeting and had purported to agree to those arrangements, he says that he only did so because he was ‘forced’ to.
13	Mr Templar says that he was angry after the October 2017 Meeting and, for this reason, used Resident A’s credit card to withdraw $1,000, which Mr Templar then used to pay the bond on a property that he was leasing.
14	The following day, Resident A reported the theft to the Facility Manager who in turn contacted Victoria Police.
15	The Tribunal Book (‘TB’) includes an unsigned letter from Mr Templar, addressed to the Facility Manager, in which he resigns ‘due to a change in [his] life circumstances’ and indicates his last working day ‘will be on 2 October 2017’.  It is not clear when that was sent or if it was accepted.  However, on 3 November 2017, the Facility Manager wrote to Mr Templar to terminate his employment ‘immediately’.
16	Mr Templar has not worked at the Facility since that time (and, as previously noted at [2], his nursing registration has been suspended since December 2017).
Criminal charges brought against Mr Templar
17	On 4 July 2018, Mr Templar was charged under section 49 of the Road Safety Act 1986 (Vic) for driving a motor vehicle on 9 June 2018 at a time when ‘more than the prescribed concentration of alcohol … was present in his breath’, noting an ‘Alleged Reading [of] 0.072’ (compared to the limit of 0.05 grams per 210 litres of exhaled air) (‘Drink Driving Charge’).
18	On 12 July 2018, Mr Templar was formally charged with theft of $1,000 from Resident A (relating to the events identified at [13]), being an indictable offence under section 74 of the Crimes Act 1958 (Vic) (‘Theft Charge’).
19	Both charges were heard in the Bendigo Magistrates’ Court on 1 November 2018.  The certified extract of the hearing indicates that Mr Templar pleaded guilty to both charges.  In relation to the Theft Charge:
•	Mr Templar was ordered ‘to pay $1000.00 compensation’ to Resident A; and
•	‘Without conviction’, Mr Templar was released upon an undertaking to ‘be of good behaviour during the period of adjournment’ (i.e. for 12 months) and to ‘complete a first stage behaviour change program’.
20	In relation to the Drink Driving Charge, Mr Templar’s licence was cancelled, he was disqualified from driving for 14 months and again was required to enter a good behaviour undertaking.
21	On 31 October 2019, the criminal proceedings were dismissed on the basis of his ‘compliance with [the] bond/undertaking’. 
Allegation 1: Criminal conviction
22	Allegation 1 is in the following terms:
On 1 November 2018 Mr Geoffrey Templar engaged in:
(a) 	professional misconduct within the meaning of paragraphs (a) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or
(c) 	unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law, 
in that he was found guilty of two criminal offences before the Magistrates’ Court of Victoria, namely theft and driving a vehicle while exceeding the prescribed concentration of alcohol.
23	The particulars of Allegation 1 are as follows:
1.1 	On 1 May 2008, Mr Templar was registered as an Enrolled Nurse (Division 2 – General) registration number: NMW0001086641. From 1 July 2010 with the commencement of the National Law Mr Templar was registered with the Board.
1.2 	At all material times Mr Templar:
(a) 	was a registered enrolled nurse within the meaning of the National Law;
(b) 	was practicing as an enrolled nurse at [the Facility] in East Bendigo, Victoria.
1.3 	On 10 October 2017, Mr Templar had Resident [A]’s credit card and without permission used it to withdraw $1,000.00 in cash from the teller machine at Strathdale shopping complex.
1.4 	At the relevant time, it was an offence under s 74 of the Crimes Act to dishonestly take property belonging to another person with the intention of permanently depriving that other person of the property.
1.5 	On 12 July 2018, Mr Templar was charged with theft of $1,000.00 contrary to s 74 of the Crimes Act (Theft Charge).
1.6 	On 9 June 2018, Mr Templar was charged with one count of exceeding the prescribed concentration of alcohol in a breath test within 3 hours after driving under s 49(1)(f) of the Road Safety Act in that he had a Blood Alcohol Concentration level of 0.072% (Drink Driving Charge).
1.7 	At the relevant time, it was an offence under s 49(1)(f) of the Road Safety Act to, within 3 hours after driving or being in charge of a motor vehicle, furnish a sample of breath for analysis by a breath analysing instrument and:
(a) 	the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and
(b) 	the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.
1.8 	On 1 November 2018, Mr Templar entered a plea of guilty to both the Theft Charge and the Drink Driving Charge in the Magistrates’ Court of Victoria at Bendigo.
1.9 	Magistrate Holzer made the following orders when sentencing Mr Templar:
(a) 	he was ordered to pay $1,000.00 compensation to Resident [A];
(b) 	without conviction, the matter was adjourned upon him giving an undertaking to be of good behaviour and to complete a first stage behaviour change program; and
(c) 	his driver’s licence was cancelled and he was disqualified from driving in the State of Victoria for a period of 14 months.
1.10 	On 31 October 2019, Mr Templar complied with his undertaking and the Theft Charge and Drink Driving Charge were dismissed.
1.11 	Further, as a result of the conduct set out between paragraphs 1.3 to 1.10, Mr Templar engaged in conduct violations.
1.12 	The Board refers to as set out in the attached Schedule:
(a) 	conduct statements 3.1, 3.4, 4.4, 8.1, 8.7, 9.1 and 9.2 of the Code of Conduct (2013);
(b) 	conduct statements 1.2(c) of the Code of Conduct (2018);
(c) 	standards 1.1, 1.3 and 2.2 of the Enrolled Nurse Standards;
(d) 	value statement 2 of the Code of Ethics (2013);
(e) 	value statement 2.5 of the Code of Ethics (2018); and
(f) 	guiding principle 8 of the Professional Boundaries Guidelines
1.13	Mr Templar’s conduct was inconsistent with the principles at paragraph 1.12.
24	While Mr Templar was not convicted of either offence, he pleaded guilty to both charges and the Magistrate could only make the orders he did on the basis of being satisfied that Mr Templar was guilty as charged.  Further, Mr Templar confirmed at the hearing that he admitted Allegation 1.
25	So far as the Theft Charge is concerned, the police brief includes photographic evidence of Mr Templar using the automatic teller machine in the Strathdale shopping centre.  Mr Templar also admitted the theft during his police interview.
26	In terms of the Drink Driving Charge, the police brief includes a contemporaneous statement from the police officer (‘informant’) regarding the circumstances.  It seems that, on 9 June 2018, Mr Templar pulled his car over just before a random breath testing station.  He was approached by the informant and, when questioned, he told the informant that he stopped to eat his dinner but admitted that he had drunk two glasses of red wine before driving for about five to six kilometres to where he stopped.  He was then asked to undertake a breath test.  When told that his blood alcohol reading was 0.072 and that was in excess of the prescribed limit, Mr Templar replied ‘no worries’ and explained he had been driving because he did not think that he was over the limit.  The brief includes a print out of the ‘alcotest’ signed by the operator.
27	In terms of the last particular, the Schedule to the Notice of Allegation contains extracts of the relevant principles (i.e. from the Board’s Code of Conduct and other materials) relevant to this matter and we are comfortably satisfied that Mr Templar’s conduct was inconsistent with those principles.
28	Having regard to the above, we are comfortably satisfied that Mr Templar engaged in the conduct as particularised and that Allegation 1 is proven.
Allegation 2: Breach of professional boundaries
29	Allegation 2 is as follows:
Between on or around 1 June 2017 and on or about 31 October 2017 Mr Templar engaged in:
(a) 	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or
(c)	unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,
in that he failed to maintain the boundaries that should, and ordinarily do, delineate a nurse/patient relationship by engaging in professional and financial boundary violations in relation to Resident [A].
30	The particulars of Allegation 2 are as follows:
2.1	The Board repeats and relies on 1.1 and 1.2.
2.2	Between on or about 1 July 2017 and on or about 31 October 2017 Mr Templar agreed to make purchases for Resident [A] without getting approval for this arrangement from his employer in that:
(a)	Resident [A] provided his credit card and pin number to Mr Templar to purchase items for him;
(b) 	items purchased by Mr Templar for Resident [A], included, but were not limited to, groceries, cigarettes and alcohol; and
(c) 	Mr Templar did not obtain approval from his employer before engaging in this arrangement.
2.3	Between on or about 1 July 2017 and on or about 31 October 2017 Mr Templar also used Resident [A]’s credit car[d] to make the following unauthorised transactions:
(a) 	on 13 July 2017 at Safeway 3148 [ref: 04151440221] for $71.90;
(b) 	on 14 July 2017 at Caltex Bendigo [ref: 74940527194] for $27.95;
(c) 	on 14 July 2017 at Safeway 3148 [ref: 05103988676] for $71.90;
(d) 	on 17 July 2017 at Liquorland 3737 [ref: 7436367196] for $111.00;
(e) 	on 4 August 2017 at Coles 7383 [ref: 74363967216] for $71.90;
(f) 	on 14 August 2017 at Liquorland 3707 [ref: 743697224] for $41.50;
(g) 	on 28 August 2017 at Dan Murphys 2622 [ref: 06170348810] for $79.85;
(h) 	on 28 August 2017 at Safeway 3148 [ref: 06170348810] for $149.25;
(i) 	on 28 August 2017 at Safeway 3148 [ref: 07182579661] for $149.25;
(j) 	on 30 August 2017 at Safeway 3148 [ref: 03170297182] for $58.95;
(k) 	on 31 August 2017 at Safeway 3148 [ref: 04000762914] for $75.90;
(l) 	on 11 September 2017 at Safeway 3148 [ref: 07120390467] for $42.00;
(m) 	on 11 September 2017 at Safeway 3148 [ref: 07121015968] for $44.77;
(n) 	on 11 September 2017 at Safeway 3148 [ref: 0712085599] for $149.25;
(o) 	on 11 September 2017 at Coles 7838 [ref: 74363967252] for $179.00;
(p) 	on 25 September 2017 at Liquorland 3707 [ref: 74363967267] for $22.00;
(q) 	on 25 September 2017 at Dan Murphys 3622 [ref: 0115112635] for $34.20;
(r) 	on 25 September 2017 at Safeway 3148 [ref: 0718225293] for $42.00;
(s) 	on 25 September 2017 at Woolworths 3383 [ref: 01150664365] for $157.15; and
(t) 	on 25 September 2017 at Coles 7838 [ref: 7463967267] for $194.95.
2.4	The total combined amount for the unauthorised purchases set out at paragraph 2.3 was $1,774.67.
2.5	In or around June 2017 Resident [A] offered his vacant property to Mr Templar to reside in and:
(a) 	in lieu of rent, Mr Templar would keep the house clean for prospective buyers and pay for utilities, namely electricity, gas and water;
(b) 	Mr Templar resided at the property until 7 September 2017; and
(c) 	Mr Templar’s son resided at the property with Mr Templar.
2.6	Mr Templar did not obtain approval from his employer before engaging in this arrangement.
2.7	While residing at Resident [A]'s property as set out in 2.5 Mr Templar accumulated out of pocket expenses totalling $1,808.42 (Out of Pocket Expenses).
2.8	The amount in paragraph [2.7] was for:
(i) 	utilities (electricity, gas and water);
(ii) 	removal of rubbish from the property following Mr Templar’s departure; and
(iii) 	$111.00 for wine that was [bought] by Mr Templar for Resident [A] using Resident [A]’s credit card, but was not provided to Resident [A].
2.9	Resident [A] paid for the Out Of Pocket Expenses.
2.10	On or about 10 October 2017 Mr Templar attended a meeting with the Facility’s Manager and Resident [A]. At this meeting, Mr Templar entered into an agreement with Resident [A] that he would pay the Out of Pocket Expenses back to Resident [A] in instalments. Under the arrangement Mr Templar agreed to pay:
(a) 	$400.00 by 1 November 2017;
(b) 	$400.00 by 1 December 2017;
(c) 	$400.00 by 1 January 2018;
(d) 	$400.00 by 1 February [2018]; and
(e) 	$208.42 by 1 March 2018.
2.11	No payments for the Out of Pocket Expenses were made by Mr Templar to Resident [A].
2.12	Between on or about 1 July 2017 and on or about 31 October 2017 Mr Templar accepted a gift of an antique Dutch lamp (Lamp) from Resident [A].
2.13	On or about 10 October 2017, Resident [A] asked Mr Templar to return the Lamp.
2.14	Under the same agreement specified in paragraph 2.10, Mr Templar agreed to return the Lamp to Resident [A] by 31 October 2017.
2.15	Mr Templar never returned the Lamp to Resident [A].
2.16	As a result of the conduct set out between paragraphs 2.2 to 2.15 Mr Templar engaged in professional and financial boundaries violations in that he:
(a) 	agreed to make purchases for Resident [A] without getting approval for this arrangement from his employer;
(b) 	used Resident [A] credit car[d] to make unauthorised transactions;
(c) 	resided at Resident [A]’s vacant property and paid no rent;
(d) 	while residing at Resident [A]’s property, accumulated Out of Pocket Expenses totalling $1,808.42 for Resident [A] to pay and did not repay these expenses; and
(e) 	accepted a gift of an antique Lamp from Resident [A] and did not return it when asked.
2.17	The Board refers to, as set out in the attached Schedule [to the Notice of Allegations]:
(a) 	conduct statements 2.4, 3.4, 8.1, 8.2, 8.3, 8.7, and 9.1 of the Code of Conduct (2013);
(b) 	value statements 1 and 2 of the Code of Ethics (2013);
(c) 	standards 1.1, 1.3, 1.4, 2.2 and 2.5 of the Enrolled Nurse Standards; and
(d) 	guiding principles 1, 3, 4, 6, 7, 8 and 16 of the Professional Boundaries Guidelines.
2.18	Mr Templar’s conduct was inconsistent with the principles at paragraph 2.17.
31	Mr Templar accepts that he used Resident A’s credit card to make purchases of alcohol and cigarettes but disputes various particulars of the allegation.  We address each of the disputed particulars below.  Nevertheless, it is appropriate to note at the outset that we are comfortably satisfied that the gravamen (or essence) of the allegation has been proven.  That is: 
•	Mr Templar entered financial arrangements with Resident A relating to the use of his property on a rent-free basis and the use of his credit card to make purchases (on Resident A’s behalf); 
•	in doing so, he ‘failed to maintain the boundaries that should, and ordinarily do, delineate a nurse/patient relationship’; and 
•	this involved ‘violations’ of professional and financial boundaries. 
Particular 2.2 – Mr Templar ‘did not obtain approval from his employer’ to use Resident A’s credit card to purchase groceries, cigarettes and alcohol for Resident A 
32	The Board submits that the Tribunal ought to be comfortably satisfied that Mr Templar ‘did not have approval for the arrangement from his employer’.  In this regard, the Board relies on the following matters:
•	The Facility Manager ‘gave clear evidence that she was not aware and had not approved of the financial arrangement between the Respondent and Resident [A]’ and that evidence should be accepted as she ‘presented as an honest, reliable and credible witness, and made reasonable concessions on facts she could not clearly remember’.
•	That evidence ‘was corroborated by contemporaneous notes she had made in October 2017 and documentation that she received from Resident [A]’ and ‘was consistent with the Code of Conduct for the facility, the “Welcome to [Facility]” guide and the document that existed to record transactions made for residents’.
•	It is clear that the ‘Lifestyle Team’ at the Facility ‘were responsible for purchases [for residents] and [Mr Templar] gave evidence that he never worked in that team’.
•	The evidence of Mr Templar, to the effect that his employer knew about the arrangement, ‘was limited and unprecise as to when or if he notified his employer of the specific financial arrangement with Resident [A]’ and he ‘could not provide any evidence of a clear approval being given’.
•	Mr Templar admitted that it was ‘an unusual arrangement with Resident [A] and that he did not use any other resident’s credit card’.
33	The Board submits the Tribunal ‘can infer from these admissions, that the arrangement was outside the “norm” of the facility and as such was not brought to the attention of management or approved by management’.
Finding on Particular 2.2
34	Mr Templar gave evidence that various staff at the Facility were using Resident A’s credit card to purchase alcohol and cigarettes on his behalf.  We accept that it is therefore possible that Mr Templar’s use of Resident A’s credit card was ‘common knowledge’ at the Facility.  However, the particular relates to approval.  In circumstances where Mr Templar admits the arrangement was unusual, the Facility Manager denies she approved it and Mr Templar cannot point to any specific authorisation, we are comfortably satisfied that no such approval was given. 
Particulars 2.3 and 2.4 – Mr Templar made ‘unauthorised transactions’ totalling $1,774.67 using Resident A’s credit card
35	These particulars state that Mr Templar made ‘unauthorised transactions’ totalling $1,774.67 using Resident A’s credit card on 20 specified occasions between 13 July 2017 and 25 September 2017.  
36	The listed transactions are drawn from bank account statements which Resident A provided to the Facility Manager and which were included in the Tribunal Book.  The listed transactions are highlighted on the bank statements, which record the dates, shop name, reference number and amounts of the transactions.  However, the bank statements do not evidence: 
•	who made each transaction;
•	what was purchased; 
•	whether Resident A authorised the purchases; or
•	whether the goods purchased were delivered to Resident A (in part or in whole). 
37	The Facility Manager gave evidence that she provided the bank statements to Ahpra in the same form as Resident A had provided them to her.  The items which are highlighted on the bank statements often include an adjacent question mark or other comments.  The Facility Manager explained that she did not put any marks on those documents and ‘assume[d] that he made those notes, notations and highlights himself’, recalling discussions with Resident A to the effect that the highlighted items were ‘some of the entries that were of concern to him' or in respect of which he had ‘no recollection of giving permission for his card to be used’.  When asked, the Facility Manager agreed that the question marks reflected transactions which Resident A did not think he had authorised, but he was not certain.  While she mentioned that he had gone through the statements ‘with a fine-tooth comb’ after his credit card went missing, she was not aware of the process the resident took to identify any suspect transactions.
38	In cross-examination, Mr Templar: 
•	disagreed with the suggestion that he had ‘made about $1,700 worth of transactions without [Resident A’s] authority’; 
•	explained that he had ‘never purchased anything for [his] own benefit’; and
•	denied that any drinking problem he had at the time impacted his memory about the transactions in question.
39	Mr Templar explained that ‘whatever [he] used [Resident A’s] credit card for was to buy what [Resident A] wanted’, observing that Resident A ‘smoked excessively and drank excessively’ to the point that there were ‘many times that we had to pick him [up] off the floor because he was inebriated so bad’.  He also said that there were three other staff – personal care attendants – who had access to the credit card and assisted with purchases for Resident A.
40	The Board contends that the Tribunal should be comfortably satisfied that the identified transactions were made by Mr Templar and that they were unauthorised.  Again, the Board contends that the Tribunal ought to accept the evidence of the Facility Manager and her contemporaneous notes of her discussions with Resident A and the bank statements that he provided to her.  The Board also relies on the statement given by Resident A to Victoria Police on 17 October 2017 that he had ‘checked [his] bank statements and … have found numerous unauthorised transactions’ which he ‘believe[d] Geoffrey was responsible for’.
41	The Board contends that the Tribunal ought not accept the proposition that other staff could have made the transactions given:
•	Mr Templar admitted taking Resident A’s credit card home overnight ‘such that he had the opportunity to use it out of hours’;
•	he also admitted that his memory was not good and he gets confused, such that ‘little weight ought to be placed on the account he now provides’; 
•	the statement of the police officer involved in the interview that the use of the credit card by other staff ‘has been investigated and receipts have been given to [Resident A] and those transactions have been accounted for’; and
•	that in his police interview, Mr Templar ‘presented as unconvincing’ and ‘made implicit and explicit admissions to the conduct’.
Findings in relation to particulars 2.3 and 2.4
42	The Tribunal cannot reach a comfortable state of satisfaction as to these particulars given: 
•	Resident A has given conflicting evidence as to the extent of the unauthorised transactions he suggests were made by Mr Templar, he has not been called and is likely to have been unable to give useful evidence having regard to his age, medical conditions and/or his alcohol addiction; 
•	the bank statements do not explain the full circumstances of the transactions and it is unclear as to whether the statements in the Tribunal Book are consistent with those Resident A provided to Victoria Police;
•	Mr Templar has given evidence before the Tribunal denying having made any unauthorised transactions and it is apparent that, when interviewed by both Victoria Police and Ahpra he has had a tendency to make admissions to avoid the discomfort of the process; and
•	Mr Templar has given evidence, which is not contradicted by any other evidence, that others also had access to Resident A’s credit card and made purchases on his behalf and there is no evidence as to the process undertaken by Resident A or Victoria Police to establish which transactions were undertaken by Mr Templar (on the one hand) and the identified PCAs (on the other).
Particulars 2.5 and 2.6 – Mr Templar and his son resided at Resident A’s property and he did not obtain approval from his employer for the arrangement
43	Mr Templar does not dispute that he stayed at Resident A’s property.  However, he disputes that his son stayed at the property (as indicated in particular 2.5(c)) and contends that his employer was aware of the arrangement (contrary to particular 2.6).  
44	In relation to the first point, when he was interviewed by Ahpra, Mr Templar made a reference to having ‘had [his] son there’ (i.e. at Resident A’s property), although it is not clear from the transcript of the interview whether this was because his son was residing there or visiting.
45	At the hearing, Mr Templar denied that his son stayed in the property, explaining that his son had his own partner and family.
46	The Facility Manager was unable to say if Mr Templar’s son resided at the property.
47	The Board contends that the Tribunal can be ‘comfortably satisfied that the Respondent’s son lived with him at the property for a time, at least in part’ given:
•	It is ‘well established that prior inconsistent statements can impact the assessment of a witness’ reliability and credibility’.
•	Mr Templar’s evidence before the Tribunal that his son did not reside at the property is to be contrasted with his statements during the Ahpra and police interviews to the effect that his son resided at the property.
•	This indicates that ‘he is willing to give different explanations as to the events, which calls into question his credibility and reliability as a witness’.
48	As to the second issue in dispute, the Board contends that the Tribunal ‘ought to be comfortably satisfied that the Respondent came to this living arrangement without approval from his employer’.  In this regard, the Board points to the following matters:
•	The Facility Manager provided evidence, which ought to be accepted, that ‘she received the complaint from Resident A and had no prior knowledge of the living arrangement, nor had she approved it’ and that evidence ‘was corroborated by contemporaneous notes that she made at the time’ and Mr Templar ‘did not recall advising [the Facility Manager] of the arrangement’. 
•	The evidence of Mr Templar ‘was imprecise, and he relies on an assumption that management “knew” what was happening’ and, even if it was to be accepted that a staff member knew about the arrangement, this was only ‘from October 2017’, being ‘some four months after the arrangement was put into place’.
•	While Mr Templar ‘suggested that management knew of the arrangement because his address had changed onto the facility’s system’, it ‘does not necessarily follow, and indeed it is unlikely, that staff would automatically recognise the address [as being the previous address of Resident A]’.
49	In light of that evidence, the Board submits that ‘because it was plain to [Mr Templar] that the arrangement was for his personal benefit, was unusual and was outside of appropriate professional boundaries’, it can be safely inferred he did not seek approval for it.
Findings in relation to particulars 2.5 and 2.6
50	We cannot be comfortably satisfied that Mr Templar’s son resided at Resident A’s property in circumstances: 
•	where Mr Templar has given evidence before the Tribunal denying that his son stayed at Resident A’s property; 
•	which indicate Mr Templar has a propensity to agree to matters to bring an end to uncomfortable questioning; and 
•	where there is no independent witness that can say that Mr Templar’s son resided at Resident A’s property. 
51	However, in circumstances where Mr Templar admits the arrangement was unusual and outside appropriate professional boundaries, and cannot point to any specific authorisation, we are comfortably satisfied that no approval was given by the management of the Facility for Mr Templar to reside at Resident A’s property on a rent-free basis.
Particulars 2.7 to 2.10 – Mr Templar incurred the Out-of-Pocket Expenses but did not pay in accordance with his agreement with Resident A or in accordance with the October 2017 Agreement
52	These particulars state that there were out-of-pocket expenses, relating to utilities and rubbish removal at Resident A’s property, as well as wine purchased but not delivered to Resident A, totalling $1,808.42 which Mr Templar ought to have paid.
53	The sum specified and the details of the expenses are based on the October 2017 Agreement.
54	When interviewed by Ahpra, Mr Templar asserted that he had paid the utilities and only agreed to the October 2017 agreement because the Facility Manager was not listening to his explanation and he had ‘had enough’.
55	During cross-examination, he maintained that he had paid Resident A for the utilities in cash.
56	For her part, the Facility Manager gave evidence that Resident A had shown her the utilities bills, which she then recorded in a table in the October 2017 Agreement and Mr Templar ‘did agree that he would adhere to the repayment schedule’.
57	In terms of the quantum of the Out-of-Pocket expenses, the Board submits that the Tribunal ‘ought to be comfortably satisfied that out-of-pocket expenses were accrued’ as this is ‘consistent with the evidence of [the Facility Manager], including her evidence of what was discussed between [Resident A] and [Mr Templar] on 10 October 2017’.
58	The Board contends that the Facility Manager’s evidence is ‘corroborated by contemporaneous notes and documents made by Resident [A]’ and should be preferred to the ‘limited and unprecise’ evidence of Mr Templar.  For example, in the October 2017 Meeting, he suggested he paid the utilities in cash at a post office and held receipts for those payments, but at the hearing he said he paid cash to Resident A and did not have receipts.
59	The Board further contends that the Tribunal ‘ought to be comfortably satisfied that the Respondent entered into an agreement to repay the out-of-pocket expenses of $1,808.42 on 10 October 2017, and that he failed to make the repayments’.
Findings in relation to particulars 2.7 to 2.10
60	We are comfortably satisfied that these particulars are established in circumstances where: 
•	the Facility Manager has given credible evidence as to how she identified the Out-of-Pocket expenses included in the October 2017 Agreement;
•	the Facility Manager has also given credible evidence as to the agreement between Mr Templar and Resident A as to the repayment of the identified amounts, which is corroborated by the terms of the October 2017 Agreement; 
•	Mr Templar has given inconsistent evidence over time as to the manner in which he contends he paid the expenses; and
•	there is no evidence of any inappropriate pressure being placed on Mr Templar to agree to the terms of the October 2017 Agreement.
Particulars 2.12 to 2.15 – Mr Templar accepted the Lamp as a gift and failed to return it as had been agreed at the October 2017 Meeting
61	Consistent with the findings in relation to particular 2.10, it is clear that Mr Templar agreed to return the Lamp as discussed at the October 2017 Meeting and as documented in the October 2017 Agreement.  However, he denies that the Lamp was given to him by Resident A; rather, he says it was a gift from Resident A to his son.
62	While Mr Templar accepts that he ought to have known that it was inappropriate for a family member to accept a gift from a patient, his evidence was that he did not know this was the case at the time.  He also contends that it was not possible to return the Lamp as agreed because it was damaged.
Findings in relation to particulars 2.12 to 2.15
63	A difficulty in relation to these particulars is that particular 2.12 specifies that the Lamp was gifted to Mr Templar.  This appears to have been based on what he admitted when interviewed by Victoria Police.  However, it is not consistent with what Resident A said at the October 2017 Meeting or with the evidence given by the Facility Manager in cross-examination.  It follows that particular 2.12 cannot be established.
64	Similarly, particulars 2.13 to 2.15 are problematic because they relate to the return of the Lamp.  Of course, as the Lamp was gifted by Resident A to Mr Templar’s son, Mr Templar was not in a position to agree to its return, even if it had been in good condition.  In the circumstances, we are also unable to reach a state of comfortable satisfaction as to these particulars.
Particular 2.16 – Mr Templar’s conduct (specified in particulars 2.2 to 2.15) involved violations of professional and financial boundaries
65	While we are comfortably satisfied that most of the particulars for Allegation 2 have been established, we have found the following particulars have not been established:
•	2.3 and 2.4
•	2.5(c)
•	2.12 to 2.15
66	It follows that, to the extent particulars 2.16(b) and 2.16(e) rely on the particulars that have not been established, they are also not established.
67	The Board submits that: 
notwithstanding whether all specifics of the particulars have been established on the balance of probabilities … the underlying conduct has nevertheless occurred and therefore, that the Respondent engaged in professional boundary violations by reason of his conduct and relationship with [Resident A].
The Board submits that even based on the Respondent’s own admissions and evidence, that the relationship between himself and Resident [A] transgressed beyond a typical, treating relationship.
The Respondent has admitted that he engaged in a dual relationship with a patient (or resident), whereby he was involved in his finances and began to live in the resident’s property. The Respondent has admitted that the use of Resident [A]’s credit card was unusual, that by living at Resident [A]’s property he had overstepped a professional boundary and that he the relationship was to his personal benefit.
The relationship transgressed well beyond a treating, professional relationship as would be expected between a nurse and a patient (or resident).
68	The Board’s submissions note the relevant sections of the Code of Conduct and guide to professional boundaries that:
•	Require nurses to maintain professional boundaries with patients (or, in the case of aged care, residents).
•	Prohibit nurses accepting gifts that are more than token and to report and obtain employer agreement as to any gifts accepted.
•	Instruct nurses to avoid dual relationships with patients and to recognise that financial transactions with patients are likely to compromise care.
69	We accept the Board submissions in this regard, and are comfortably satisfied that the gravamen of the allegation has been proven.
70	The Board also contends that any reliance that Mr Templar seeks to place on a ‘supposed permissive “culture” at the Facility’ to excuse his conduct should be given limited weight.  This is because, ‘[e]ven if other staff members were behaving inappropriately (of which there is no objective evidence), it did not permit the Respondent to ignore his own professional obligations’.
71	We agree that, whether or not there was a permissive culture at the Facility, the conduct in which Mr Templar engaged involved violations of the professional and financial boundaries he was obliged to maintain with Resident A as a registered nurse.

R Tang, AM
Senior Member and Presiding Member	M Bylhouwer
Health Practitioner Member	M Archibald, PSM
Health Practitioner Member