VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
REVIEW AND REGULATION LIST	VCAT Reference: Z924/2024	

APPLICANT:	Anita Sunil	
RESPONDENT:	Nursing and Midwifery Board of Australia	
BEFORE:	Deputy President I. Proctor  	
HEARING TYPE:	Stay Hearing	
DATE OF HEARING:	21 October 2024	
DATE OF ORDERS:	4 November 2024	
DATE OF REASONS:	14 November 2024	
CITATION:	Sunil v Nursing and Midwifery Board of Australia (Review and Regulation) [2024] VCAT 1084	
OrderS
1	Under section 50 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), VCAT stays the respondent’s decision made on 7 August 2024, until the hearing and determination of this proceeding or further order.
2	Under section 146(4)(b) of the VCAT Act, VCAT directs that no person other than a party to the proceeding or their legal representatives may inspect the VCAT file.
3	The application for review is listed for an administrative mention on 2 December 2024 by which time the parties may jointly request VCAT to make orders to list the proceeding for a hearing. 
4	In order for VCAT to decide whether the matter can proceed to hearing, the parties must also jointly:
a)	identify any preliminary matters that need to be resolved;
b)	specify the likely duration of the hearing; 
c)	provide all available (or unavailable) dates over February to April 2025 when all necessary participants (ie relevant parties/counsel/witnesses) will be available to attend the hearing;
d)	advise VCAT of any other matters that may impact on the hearing process, such as the need for an interpreter or another form of assistance; and 
e)	advise VCAT whether the parties would prefer the hearing to be held via Zoom or in-person at 55 King Street Melbourne.
5	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 hearing.
6	All contact with VCAT must include the VCAT case number and be copied to all other parties (unless otherwise ordered).

Ian Proctor
Deputy President			

APPEARANCES:		
For the Applicant 	Mr J Levine of Counsel	
For the Respondent	Mr J Stoller of Counsel	

REASONS FOR DECISION
1	In September 2024, and received an application from RN Anita Sunil, under the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law). 
2	She seeks review of a decision by an Immediate Action Committee of the Nursing and Midwifery Board of Australia (the Board), to take immediate action, imposing supervision conditions on her registration (IAC Decision), that she may only practise as a registered nurse when supervised by another registered nurse. 
3	The Board may take immediate action under section 156(1)(a) of the National Law if it reasonably believes that, because of a registered health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.
4	On 21 October 2024, Ms Sunil’s stay application came before me for hearing. 
5	At the end of the stay hearing, I reserved my decision. On 4 October 2024, I granted the stay with reasons to follow, which are now provided.
The law relating to stay applications
6	Section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) generally gives the Tribunal power to stay a decision which is the subject of a review application.
7	Here the exercise of the discretion is considered in context of the paramount guiding principles under the National Law:
•	protection of the public; and
•	maintaining and promoting public confidence in the safety of services provided by registered health practitioners.
8	Another guiding principle is that restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
9	Concerning section 50(3) of the VCAT Act, there are well established criteria which assist deciding a stay application:
•	Whether refusing the stay will render the application for review nugatory.
Refusal to grant a stay will render an application nugatory where irreparable damage will be done by the operation of the decision under review before VCAT decides the review proceeding and that damage cannot be undone if the application succeeds.
•	Where the decision under review is a decision under a professional regulatory regime, particular care needs to be exercised before a stay is granted. There is a powerful public interest in protecting the public from unsafe practitioners, and a clear public interest in maintaining standards in regulated professions.
•	Whether there is a serious question to be tried on the review.
On whether there is a serious question to be tried, it is proper to consider the likely outcome of a review application in light of fundamentally uncontested matters, but it is inappropriate to consider seriously contested matters with a view to trying to predict the outcome without the benefit of hearing evidence.
•	Whether or not a party will suffer prejudice if the application is granted or refused.
Generally, VCAT has a predilection in favour of not, ‘putting people out of business’ until they have had the opportunity to prosecute their review applications.
However, in cases involving immediate action against a health practitioner, the protection of the public will often take priority, even if damage would result from refusing the stay. VCAT has said that, in cases of this kind, the protection of the public is paramount, so that, in general terms, the impact of risk to the public will override the private impact on the practitioner. 
•	Whether the granting of the stay is in the community or public interest.
•	The period of time that will elapse before the final hearing of the application for review.
•	The extent to which the person facing regulatory proceedings has an incentive not to engage in further inappropriate behaviour for the duration of the VCAT proceeding.
•	Whether any stay should be granted subject to conditions.
10	Concerning these principles, the Board submitted that the insertion in 2023 into the National Law by section 3A of the concept of the main  ‘paramountcy’ of protection of the public and public confidence in the safety of services provided by registered health practitioners and students, in the context of the other guiding principles means protection of the public and safety and provision of services are to be regarded as overriding and of the highest importance. The Board cited Secretary to the Department of Justice v McIntyre, a decision concerning the then Working With Children Act 2005 (Vic).
11	I note and agree with the Tribunal’s recent decision in Halliwell v Medical Board of Australia:
Ms Isobel submitted that the National Law and the WWC Act cannot reasonably be compared and that while section 3A(1) of the National Law contains the main guiding principle, the other guiding principles in section 3A(2) ‘have a job to do’. We agree. We observe that section 156(1)(e) of the National Law focusses on the public interest (which, as the authorities we discuss indicate, is not one-sided). The provision gives the decision-maker discretion. In contrast, depending on an applicant’s offences or charges, the WWC Act, and now the Worker Screening Act 2020 (Vic), give the decision-maker no discretion to permit an applicant to work with children, or require the decision-maker to refuse the application unless satisfied about specified matters, the public interest being only one of them.
12	That said, I agree with the Board’s submission that whether an application for review will be rendered nugatory without a stay should not be considered as the dominant principle, but rather one of the criteria. In the years since Bell, that approach has been increasingly adopted in applications for stays.
13	I disagree with the Board’s submission that there can be no question of any ‘predilection’ of VCAT to permit people to work because such predilection is inconsistent with the statutory requirement that the Tribunal’s paramount consideration must be the protection of the public and public confidence in the safety of health services, as set out above. 
14	The predilection fits comfortably with the principle of minimal interference to a practitioner’s registration, in context of the main principles and the other principles of the National Law.
15	I agree with the Board’s submission that I must take into account the interests of the public in ensuring that ‘only professionally trained persons with stable personalities who observe proper professional standards are permitted to work as a nurse’.  
16	I agree that, as the Board submitted, I should have regard to the Board’s expertise and its statutory role as regulator. That is not to say that the Board’s position is determinative, but it should be given proper weight. This is in context that authorities have described VCAT as an expert Tribunal, when sitting as a panel. That description does not apply when a Tribunal member (a lawyer) sits alone.
Background
17	RN Sunil was admitted to practise as a nurse in Australia in 2005.
18	From May 2022 until the employer terminated her employment on 12 July 2023, she worked for Greenwood Manor Pty Ltd Aged Care Facility (Greenwood) as a supervising Nurse for the Night Shift, on a part time basis. She was also working full-time at Monash Health.
19	The 12 July 2023 termination letter from Greenwood cited the following facts found by the author:
1.	During the course of the night the care office was left unlocked every time you exited. Further, the medication trolleys were not locked and the Webster packs were left on the top of the trolley. Now, you received a written warning for breach of our Medication Policy on 14 June. After that time, you were re-educated on all matters to do with the Policy. Notwithstanding the education, you were in continual breach of this policy throughout the night.
2.	You have been reminded to keep all personal items in the staff locker areas. You chose to leave your handbag in the care office.
3.	At 11:18 pm [Patient A] rolled out of bed. Ms. Bai then rang you for assistance. You entered and loudly yelled ‘What are you doing, why can't you stay in bed?’ You then instructed the PCA to just ‘leave her on the floor''. You walked around the apartment several times while fouly exclaiming ‘Ah, Jesus’ several times. Later, you then took [Patient A’s] legs and roughly threw them onto the bed. In the second similar incident in the early morning (3:15am), you have verbally abused the resident and told her that she is staying on the floor now. Later you came back and dropped a pillow on her head. At no time did you address any pain or continence issues. Further, you did not get the lifting machine to help [Patient A] back up off the floor. At no time did you check for pain, incontinence or other issues. This is in clear breach of our policies relating to resident care. But, it is more than that, it is in clear breach of your own ethical nursing position.
4.	Throughout the night, you have either not had a mask on or you have been wearing your mask below your chin. This is in clear breach of our infection control protocols.
There are many, many parts of your letter that are self-serving or simply untrue. For example, in the way you have addressed your non mask wearing position. You also spent a great deal of time in the office and having regular coffee breaks.
In any event I note the earlier warning letter to you about medication protocols and the way you deliberately breached medication protocols. I also note the disgraceful response to [Patient A’s] needs. In this, your conduct has been reprehensible and you have breached our fundamental policy of kindness and respect to the resident. Indeed, you have been utterly derelict in your duty. You showed no kindness whatsoever to the resident.
In my opinion, the totality of your conduct during the night was within the definition of 'major infraction' of not one policy, but numerous of our policies. Your employment is to be terminated immediately. I confirm that I have directed Rebecca to notify APRA about your conduct. A SIRS complaint will also be filed.
20	About nine months after terminating RN Sunil’s employment, on 12 March 2024 Greenwood notified Ahpra as to the events in question. Greenwood alleges that RN Sunil is a risk to the public as a result of practising in a manner that is a significant departure from acceptable standards and a risk to others as a result of emotional and psychological harm.
21	This was followed by a 24 July 2024 show cause letter to RN Sunil, her 6 August 2024 response, the 6 August 2024 IAC Decision followed by a 7 August 2024 Notice of Decision to Take Immediate Action.
The IAC Decision
22	In its 7 August 2024 ‘Notice of Decision to Take Immediate Action’, the Board advised:
On the basis of the evidence before it, the Board reasonably believes that because of RN Jordan Sunil’s conduct and/or performance, she poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.
23	The Notice continued:
In forming a reasonable belief that because of RN Jordan Sunil’s conduct and/or performance she poses a serious risk to persons, weight is placed on the notification, closed circuit television footage (CCTV) and material provided by Greenwood Manor:
a. 	On 14 June 2023, RN Jordan Sunil received a written warning for breach of Greenwood Manor's Medication Policy and was subsequently re-educated on all matters to do with the Medication Policy.
b. 	On 7 July 2023, during the course of the night, the Care Office was left unlocked every time Ms Jordan-Sunil exited. Further, the medication trolleys were not locked and the Webster packs were left on the top of the trolley. Further, Ms Jordan-Sunil was reminded to keep all personal items in the staff locker areas however, chose to leave her handbag in the Care Office.
c. 	At 11:18pm on 7 July 2023, a resident, [Patient A] rolled out of bed. A patient care assistant (PCA), Ms Bai rang RN Jordan-Sunil for assistance, she entered and loudly yelled ‘What are you doing, why can't you stay in bed?’. RN Jordan-Sunil advised the Ms Bai to leave [Patient A] on the floor. RN Jordan-Sunil walked around the [Patient A’s] room and several time exclaimed ‘Ah, Jesus’.
d. 	Ms Jordan-Sunil then roughly grabbed [Patient A’s] legs and threw them onto the bed.
e. 	At 3:15am on 8 July 2023, RN Jordan Sunil told [Patient A] she was ‘staying on the floor now’. RN Jordan Sunil later came back and dropped a pillow on [Patient A’s]head. At no time did RN Jordan Sunil use the lifting machine to help [Patient A] off the floor or check for pain and incontinence issues.
f. 	During the shift, RN Jordan Sunil either did not have a mask on or wore her mask below her chin in breach of Greenwood Manor's Infection Control Protocols.
g. 	On 12 July 2023, RN Jordan Sunil’s employment was terminated at the Greenwood Manor.
24	The IAC Decision recorded RN Sunil’s response to being advised that the Board was proposing to take immediate action:
In response to the proposed immediate action, RN Jordan Sunil submits (in summary):
a. 	The written warning for breach of Greenwood Manor's Medication Policy was the first time in her career as an RN that she received a disciplinary outcome for a medication error. Following the disciplinary process, she ensured the medication policies and procedures were adhered to.
b. 	With respect to [Patient A], she failed to understand the operational concerns raised regarding her statements – they were general statements that simply expressed her concern regarding [Patient A’s] roll out from the bed. RN Jordan Sunil appears to attribute her comments to her linguistic and cultural background.
c. 	She disputes the allegation that she handled [Patient A’s] legs in a rough manner. She used her body weight to elevate her legs and slide them on to bed. During the transfer there was no evidence, that [Patient A] was in discomfort or pain and no such allegation has been made.
d. 	She denies dropping the pillow on [Patient A]. [Her] head was close to the bed and wall, and due to the tight space, she could not get in further to do a full assessment. She kept a pillow between the space of the bed and the wall to prevent further injury.
e. 	She denies [not using a]  lifting machine to help [Patient A] off the floor or [failing to] check for pain and incontinence issues. She submits she assisted care staff in using the lifting machine and performing the pain and skin assessment, and this is seen in the CCTV footage.
f. She forgot to wear a mask in rush for attending the buzzer, however upon realising so, she put on a N95 mask and returned to [Patient A].
25	The Board decided:
RN Jordan Sunil’s submissions are acknowledged. However, having regard to the alleged conduct and/or performance concerns underpinning Greenwood Manor’s investigation, which resulted in a failure to provide adequate care to a patient and resulted in her termination, the Board continues to form a reasonable belief that RN Jordan Sunil’s performance and/or conduct poses a serious risk to persons such that it is necessary to implement regulatory safeguards whilst the matter is further investigated. Of note, the Board remains concerned about RN Jordan Sunil’s communication, conduct and failure to provide adequate care for Mrs Allinson as indicated in the CCTV footage available.
Further, her apparent continued lack of insight into the seriousness of her alleged failures to ensure safe nursing care.
RN Jordan Sunil was responsible for providing care to a vulnerable patient cohort in an aged care facility. The alleged conduct is such that she failed to provide appropriate and compassionate care to a vulnerable patient, [Patient A]. In these circumstances, there is a risk a patient’s condition may deteriorate, health conditions may be exacerbated and/or risk of death.
Further, RN Jordan Sunil was responsible for contributing to safeguarding medication including its correct storage and ensuring safe patient care for [Patient A]. A serious risk to persons arises should practitioners fail in their obligations to store and safeguard scheduled medications in accordance with legislative, regulatory and local laws and policies. Such failures may result in inappropriate access of medications and/or risk of errors in administration of medications to patients.
Having regard to RN Jordan Sunil’s submissions with respect to aspects of the incident, and in the absence of any previous regulatory notifications and any further concerns raised in relation to her practice since her termination from Greenwood Manor, the Board considers that imposing conditions on her registration requiring her to be supervised by another registered nurse and practice in only approved places of practice is the appropriate form of action whilst the matter is further investigated.
Lesser forms of action (or no action) would be insufficient in circumstances where:
a. 	RN Jordan Sunil had been warned previously by her employer about medication management and had been re-educated however continued to fail in her obligations to manage and appropriately safeguard medication;
b. 	Notwithstanding RN Jordan Sunil’s denials, she is alleged to have provided inappropriate and poor care to [Patient A] in the presence of other colleagues, where the information available suggests RN Jordan Sunil held a level of authority;
c. 	RN Jordan Sunil was terminated from Greenwood Manor as a result of the alleged conduct and/or performance concerns; and
d. 	The concerns raised relate to core competencies of a registered nurse, including providing safe and effective nursing care.
The Board noted that this decision is limited to the considerations set out in section 156 of the National Law and in particular the necessity to take interim action to protect public health and safety and preserve public confidence in the nursing profession.
The Board noted that the investigation about RN Jordan Sunil’s conduct and performance is ongoing and that the Board will be given a report upon completion of the investigation and at such time consider and determine the appropriate regulatory action, if any, in response to the concerns. This interim action is necessary to address the risk to safety and confidence in the profession whilst that process takes place.
26	In the nine months between Greenwood terminating RN Sunil’s employment and the IAC Decision which led to her having to stop working at Monash Health, there is no evidence of any complaint about her performance working at Monash Health.
Applicant’s evidence
27	In her affidavit in this proceeding, RN Sunil gives evidence of being 59 years old, admitted to nursing in India in 1991 and working full-time until 2005 when she moved to Australia and was that year admitted as a nurse in Australia. Since then, she has worked in public hospitals and aged care facilities.
28	RN Sunil referred to her response to the IAC committee.
29	On the medication issues she said:
In response to l(a). I wish to confirm that I did receive a written warning on 14 June 2023 that included a copy of the Greenwood Manor Medication Policy. This was the first time in my career as a Registered Nurse that I received a disciplinary outcome for a medication error, and I fully considered the Medication Policy to ensure that I did not cause a breach in the future.
In response to l(b). Greenwood Manor is an old facility and does not have locked or swipe access doors for staff entry. The medication trolleys are stored in the Nursing Station with a manual lock and are accessible to all staff. After the previous, disciplinary matter, I ensured I adhered to Greenwood's medication policies and procedures and locked the sliding door which provided access to the Care Office. I wish to assert that there was no risk caused to my patients and no medications have been reported as lost. Following the disciplinary process there were no Webster Pack left on medication trollies as I ensured that all protocols of the Medication Policy were adhered to. I never left my handbag in the Carer Office, but it was at the desk on the reception at the front of the Carer Officer, for better access to a tea mug which I often used during an overnight shift, I do not consider this a breach of any of Greenwood Manor's policies or procedures. During my time in Greenwood Manor there was no medication incident reported against for any error in medication provision
30	On events in the room she said:
In response to l(c). I vividly remember and upon looking at the CCTV footage, Ms Bai called me to assist [Patient A] and reported that she had a fall. [Patient A’s] legs were half down the low- low bed. I wish to note that [Patient A] is a frequent faller, and she rolls down the bed multiple times at night hence there was CCTV camera placed in her room to investigate the reason for her falls. Ater entering the room as you can see in the CCTV footage at 11:17pm, I directed the other staff to transfer the return the resident to bed and this was done correctly and safely. I fail to understand the operational concerns raised regarding the statements I made whilst in the room with [Patient A] and Ms Bai. These were general sentences that simply expressed my concern regarding a resident's roll out from the bed. Everyone has a different way of speaking due to different linguistic and cultural backgrounds and I do not believe that this impacted on the level of care provided to Ms Allinson or any other clients I provide care to.
In response to l(d). As per CCTV footage, I can see [Patient A’s] legs were half down and a lifting machine could not have been used looking at the angle, in my clinical judgement, I thought it was best to lift her legs and put them back on bed. I dispute the allegation that I handled [Patient A’s] legs in a rough manner, in fact I used my body weight to elevate her legs and slide them on to bed. During the transfer there was no evidence that [Patient A] was in discomfort or pain and no such allegation has been made.
In response to l(e). When [Patient A] rolled out of bed, there were two Personal Care Assistants (PCA) were attending to continence care needs of the 59 other residents, this continence aid round lasted roughly 2.5 hours and I usually jumped in to help my staff in attending to call bell responses. I went to check on [Patient A’s] buzzer as my staff were busy. I saw [Patient A's] buzzer and quickly ran from the Nursing Station with an intention to prevent the fall by answering the call bell in a timely manner. Upon arrival, I saw [Patient A] had rolled out of bed already. I went across the crash mat and saw [Patient A] on her left side facing the bed. Her head was very close to the bed and wall, due to the tight space I could not get in further to do a full assessment. I kept a pillow between the space of the bed and the wall to prevent further injury. At no time was the pillow dropped on her head. You may refer to CCTV footage which only shows an angle of her face where her head is tilted towards the bed and away from the wall and pillow was kept in a space to prevent her from any further injuries.
31	On the mask issue, she said:
In response to l(f). As soon as I realised that I was not wearing an N95 mask, I ran to grab a mask and returned to [Patient A]. As you can see in CCTV footage, I brought Ms Bai with me and ensured Ms Allinson was safe on the crash mat, we gave her a blanket and ensured she was comfortable. I asked Ms Bai to leave [Patient A] on the floor for now as another PCA and Ms Bai were attending to all other patients for continence needs. In my clinical judgement, it would have been a risk for the co-resident, who they were attending at that time, to leave him in the middle and attend to [Patient A]. Hence, I asked them to come after they have finished with the patient they were attending, in my clinical, judgement, [Patient A] was safe to be left on crash mat until staff were available to attend to her. I went to check on [Patient A] again, she was found to be holding the pillow across her arms which I then removed for her safety. Finally,  xstaff were available to help me to transfer [Patient A] back to bed.
I assisted care staff using a lifting machine as clearly seen in CCTV footage. I deny the allegation that [Patient A] was not transferred to bed using lifting machine. I agree that the transfer was delayed due to circumstances happening outside that room, however, the care was well provided, and the patients safety was ensured. In the video I can clearly see myself attending to [Patient A’s] care needs. I performed the appropriate pain assessment and skin assessment and performed her wound dressing and ended up giving her PRN Panadol. The staff are clearly seen attending to the continence care prior to pain management.
In response to l(f), further in response to not wearing a mask and adhering to infection prevention policies, please note that at the time of even - there was no infectious outbreak in the facility. The masks were mandatory and as mentioned above, I wore my mask as soon as I realised and went back to [Patient A]. Unfortunately, I forgot to wear the mask in rush for attending the buzzer which I apologise for. At the time, I did not have any respiratory symptoms and had completed a mandatory RAT prior to starting my shift as I was required to.
32	She also gave evidence:
Further to my formal response in relation to handling of medication, I say that medication room has a sliding door with no lock. As I am the only registered Nurse with keys. Medication is taken to the residents at about 10pm and 6 am each shift.
As to allegations regarding [Patient A], I say again, I was frustrated that she fell from her bed. APHRA refers to 2 incidents at 7 July 2023 at 11.18pm and 8 July 3.16am in the morning. I ask the tribunal to look at other footage provided by APHRA.
I say the tribunal will see that me suggesting the patient will stay on the floor all night is incorrect. It shows myself and the care assistants doing our best to try and move the bed, return her to the bed, which eventually happened when 3 staff were present, and me providing care to the patient with scratches from her fall.
The footage up till about 4am also shows me being sympathetic and providing care the patient.
There was never abusive intent to leave the patient on the floor the entire night. We discussed safety concerns and tried to keep her safe from falling.
33	Finally, the affidavit refers to the conditions essentially amounting to suspension, as demonstrated by an email from Monash Health dated 7 October 2024.
34	While Monash Health says if restrictions are listed, it will if requested review the situation, I did not accept the submission that this amounted to some form of confirmation of re-employment if the IAC Decision is stayed.
35	In recent times, RN Sunil has successfully completed continuing professional development (CPD) online courses in:
a)	Medication Safety (20 minutes), Preventing Medication Errors (47 minutes), Self-Care: Stress and Resilience (30 minutes) from Ausmed; and
b)	High Risk Medicine Education Certificate of Achievement concerning successfully completed courses on Opioid Analgesics in Acute Settings and Introduction to High-Risk Bedicines, conducted by the Australian Commission on Safety and Quality in Health Care.
Board’s evidence 
36	The Board provided CCTV video footage of the events in question. Both parties submitted it was vital to view the video before making orders and giving reasons. Here are my descriptions.
37	The times shown reflect the filename of the relevant CCTV clip. Unless otherwise stated, all staff are wearing facemasks. The events largely take place late on 7 July 2023 and through the early hours of 8 July 2023.
a)	7 July 2023 – 23:17 – another staff member discovers that Patient A having fallen out of a low bed, to be facedown with her upper body on the bed and her legs on the floor to the right of the bed as viewed from the foot of the bed. With some quiet swearing, ‘Jesus’ that staff member asks Patient A, ‘you fall again?’. Patient A, facedown, answers ‘yes’. The other staff member largely stays with Patient A apparently pressing a help button, reassuring her and telling her not to move. Patient A makes some response to the staff member. RN Sunil enters the room. She said words to the effect that we can’t just keep putting her back in bed and we should put her on the floor and leave her on the floor. Together the two staff with some force probably necessary to return Patient A to the bed, successfully do so. Then, RN Sunil in an unacceptable aggressive manner shouts at the patient, ‘What are you doing? Why have you fallen out of bed again?’. RN Sunil leaves the room saying words to the effect of, ‘Whatever you do, she falls out of bed’. The other staff member makes the bed around Patient A.
I note here the Board’s characterisation of this video in submissions:
[RN Sunil] entering the Patient’s room at around 11:18pm. When [RN Sunil] enters the Patient’s room, [Patient A] can be seen to have partly fallen from bed and [RN Sunil] assists the PCA to lift the Patient, roughly moving the Patient’s legs onto the bed. [RN Sunil] is recorded saying words to the effect ‘Ah, Jesus. We can’t just keep putting her in bed. Put a mattress on the floor and leave her on the floor. [Fricking?] hell, this woman. Jesus…. What are you doing? Why can’t you stay in bed’
…
[RN Sunil] saying, during the 11:19pm attendance, to the PCA and about the Patient ‘I’m sick of her’
b)	8 July 2023 – 03:15 – RN Sunil (without a mask) comes into the room to see Patient A on the floor to the left of the bed in the narrow space between the bed and the wall. She says to herself, ‘far out’. [RN Sunil] shouts at the patient, ‘What are you doing?’ and throws, without great force, from a standing position a pillow which hits the Patient A’s head, landing between the Patient A’s head and the wall. RN Sunil walks away saying something to herself. Patient A, on the floor makes some small movements. About a minute later RN Sunil walks back in (masked) and seems to be trying to make some adjustment for the patient, this cannot be seen clearly on the CCTV. The CCTV finishes with RN Sunil saying something to herself which is unintelligible on the CCTV.
In submissions the Board described this as:
[RN Sunil] attending [Patient A’s] room without a face mask, at approximately 3:16am. During this attendance, [Patient A] has again fallen from bed, and is lying on the floor. [RN Sunil] appears to throw a pillow, which apparently strikes [RN Sunil] on or around the head and then falls to the floor behind [RN Sunil’s] head. Rather than comforting the Patient, [RN Sunil] says words to the effect: ‘what are you doing?’
c)	8 July 2023 – 3:18 – RN Sunil and another staff member enter the room, RN Sunil says in an exasperated fashion, ‘she is a pain in the neck that woman … I don’t know what to do with her’. The other staff member manages to get a pillow under the Patient A’s head. RN Sunil comments that they cannot leave the Patient A like this. The other staff member agrees. They manage to assist the Patient A to roll onto her back on the floor. During this they see if they can move the bed out to give more space, but it seems well anchored (but see below). RN Sunil with a little exasperation says somewhat loudly, ‘You’re staying here now, we are not moving you, oh my god, tired of you’.
I note it is possible that RN Sunil knows the patient has hearing loss and that is why she is speaking somewhat loudly.
In submissions the Board described this as:
[RN Sunil] attending the Patient’s room at around 3:18am, while [Patient A] is still lying on the floor having fallen from bed. During this attendance, [RN Sunil] is recorded saying words to (about Patient A) to the effect: ‘She’s a pain in the neck [that] woman, she’s killing this tonight; I don’t know what to do with her…. Jesus… I don’t know what to do with her… 
…
During the 3:18 attendance, [RN Sunil] speaking to [Patient A] (who is still lying on the ground) and saying words to the effect: ‘You’re staying here now, we’re not moving you. Tired of you. Stay here. Jesus’
d)	8 July 2023 – 03:20 – the staff leave the room, for a short time. Patient A lying on her back does not move and then raises herself onto one elbow and pulls what is probably an incontinence sheet toward her.
e)	8 July 2023 – 03:27 – Patient A has a pillow under her head and is holding another pillow. RN Sunil comes in, (face mask under the chin) reaches across the bed and somewhat abruptly pulls the top pillow from the Patient A’s arms and throws that pillow on the floor on the other side of the bed. At this stage, RN Sunil is not wearing her face mask. RN Sunil is calm and un-hurried. While there are no staff in the room, Patient A again lifts herself onto one arm with the other arm and hand on the bed and stays in that position.
In submissions the Board described this as:
[RN Sunil] attending [Patient A’s] room at around 3:27am, with a mask on but not covering her mouth and nose, instead being worn down around her chin, appears to pull the pillow from [Patient A’s] arms and throws it onto the floor away from her without saying anything. 
f)	8 July 2023 – 03:43 – RN Sunil re-enters the room to discover Patient A has somewhat pulled the mattress over her and is grasping what appears to be an electrical cord. RN Sunil is now able to move the bed and does so, giving Patient A more space, gently disentangling the cord from the patient’s hands.
g)	8 July 2023 – 03:58 – Patient A is back in bed, with another staff member speaking with her. RN Sunil is dressing a wound on Patient A’s hand. There is another staff member present. The bed is being made around the patient.
h)	8 July 2023 – 03:59 – Confusingly in terms of the timing of the videos, in this video RN Sunil and to other staff are manoeuvring a lifting machine to lift Patient A back into bed. RN Sunil is saying to Patient A in a conversational tone, words to the effect of, ‘why can’t you just stay in bed?’.
i)	8 July 2023 – 04:03 – RN Sunil completes the dressing on Patient A’s hand, in a caring manner, speaking to her in a conversational tone, with some response from Patient A which I cannot understand.
j)	8 July 2023 – 04:06 – All is calm. RN Sunil is alone in the room with Patient A, observing the dressing she has placed on Patient A’s hand, saying, ‘all right [patient’s first name]’.
k)	8 July 2023 – 04:08 – RN Sunil, alone in the room with Patient A, uses a control to lower the bed virtually to the floor saying, ‘[first name] are you staying in bed now, are you staying in bed now’. And in a resigned voice, ‘you had a big skin tear, please stay in bed’. RN Sunil places a crash mat (labelled as such) on the floor next to the bed. There is already one on the other side of the bed. As she leaves, she says something about other staff coming to change something.
l)	8 July 2023 – 04:12 – Patient A is in bed, RN Sunil comes in. Speaking somewhat loudly, in a kindly fashion RN Sunil says, ‘Why don’t you get some sleep, you have not had much, and the girls will be in shortly to change you’.
m)	8 July 2023 – 04:20 – RN Sunil and to other staff are in the room with Patient A on the bed, which is raised. RN Sunil says in a loud, calm, voice, ‘Would you like some Panadol, your hand must hurt (the site of the wound dressing) I will get some Panadol’ and leaves. Patient A says to one of the other staff members, ‘You are so kind’ (this could be directed individually or to the group) and the staff go about preparing to change the Patient A’s nightie.
n)	8 July 2023 – 04:26 – with RN Sunil and the two staff working together, RN Sunil gives Patient A some Panadol, which takes some patience, followed by attempting to give her some water. This is all done in a caring manner.
o)	8 July 2023 – 04:39 – RN Sunil and another staff member are in the room with Patient A, discussing her multiple falls, discussing whether the mattress should be on the floor (although they seem to understand this is not viewed as a viable option), discussing the skin tears that multiple falls from the bed are causing and both saying, ‘something needs to be done’.
p)	8 July 2023 – 10:31 – it morning in the Patient’s room. All is neat and tidy. Patient A is in a chair next to a window with the blinds open and light streaming in. RN Sunil and a new staff member (to this video series) are caring for her. It is not possible to understand what they are saying. The staff leave and the rest of the video shows the patient sitting in the chair.
RN Sunil’s submissions
38	RN Sunil submitted that the imposition of a supervision condition has the same effect as suspension, and she is subject to significant hardship pending a further hearing and a final investigation by Ahpra. I quote:
[RN Sunil] refers to the reasons in the APHRA notice in 1(a) to (g) as follows:
1(a) and 1(b)
[RN Sunil] admits the breaches of the medication policy. [RN Sunil] further states that the Care Office sliding does not have a lock and is usually occupied by other staff during the shift. She admits during this shift she did not close the sliding door.
[RN Sunil’s] handbag had her tea mug in it. It was left at reception. This did not pose a risk to patients.
1(c) , 1(d) and 1(e)
[RN Sunil] was frustrated and did state ‘what are you doing, Stay in Bed’. The patient was falling of the bed and causing injury to herself during this shift. She required assistance to place the patient in bed. There were only 3 staff for in excess of 60 residents. She attempted to place [Patient A] back in the bed.
This did occur again at 3.15 am. She admits saying ‘what are you doing’ and was frustrated. [RN Sunil] and other care assistant were unable to move the bed.
[RN Sunil] tried to keep Patient A safe by placing a pillow between her head and the wall until she could obtain assistance with 2 other care assistants to safely place the patient back in the bed.
The above recordings are 2 minutes in length. Further recordings provided up until 4.39am that day depict [RN Sunil] and one care assistant trying to move the bed, discussing how to keep her in a safe position until they could safely place [Patient A] back in the bed. Conversations occurred to keep her in a safe position until the situation could be rectified. Further depictions in videos show [RN Sunil] attending to wounds of [Patient A], offering to treat her with Panadol and pleading with her in a sympathetic tone to not fall out of the bed please.
1(f)
[RN Sunil] admits that she did not cover her face with the mask at particular times during the night shift on 7 July 2023.
[RN Sunil] states that she took respiratory tests as required by Greenwood each shift.
[RN Sunil] admits that in rushing to attend to [Patient A] when the buzzeralarm went of, she did forget to wear her mask, left the room to put her mask on and admits due to the stress for [Patient A] had it uncovered. In the sequence of events this was for a matter of minutes during the shift and is depicted in the CCTV footage during the night.
39	The submissions continued:
Since 7 August 2024 [RN Sunil] has not been in a position to obtain support for her to continue to work on a supervised basis. She has earnt no income since that date.
It is relevant that [RN Sunil] has not had any disciplinary action or complaints from patients or her employer at Monash Health since July 2023.
In a private aged care facility, there are no mandated staffing requirements. The client has worked for Monash Health and public hospitals for the majority of her career. She has had no complaints and positive performance reviews. Staffing levels in these environments in a night shift is one nurse to every 15 patients. This does not apply to Greenwood.
If required, [RN Sunil] will agree to an undertaking to work in public health facilities pending resolution of this matter.
[RN Sunil] understands that the investigation could take over 6 months. The effect of the supervision requirement is the same as suspension. Her current employer will not consider supervision in her field.
[RN Sunil] submits that if the CCTV footage is viewed in its entirety for the evening shift of 7 July 2024, the evidence will show that the allegation that she is a risk to the public and emotionally and psychologically abusive to patients is not an accurate conclusion.
[RN Sunil] undertakes to complete continuing CPD in relation to medication management and stress management in the workplace.
40	It was further submitted:
•	There was no basis for the comment by the IAC of a risk of death;
•	RN Sunil otherwise has a good record of employment;
•	VCAT as a specialist tribunal should not unduly defer to the expertise of the IAC committee, and should form its own independent judgement where the IAC decision provides no logical basis on which to formed a reasonable belief of serious risk to patients; and
•	As VCAT has found, there is community interest in people being able to continue in their profession and there is community interest in nurses, where appropriate, being able to continue to serve the community.
The Board’s submissions
41	In summary, the Board submitted that the Decision should not be stayed. Rather, the interim protection of the public conferred by the IAC Decision should be afforded paramountcy by the Tribunal. That protection should remain in place until the Tribunal can review the IAC Decision.
42	The Board submitted, with reference to the ‘paramount consideration – protection of the public and public confidence in the safety of services’:
First, this is a case about ‘serious risk’. The serious risk identified by the Board concerns fundamental competencies of a registered nurse, including in respect of the provision of safe and effective nursing care. 
Secondly, and while [RN Sunil] has provided some further evidence, there is no substantive new evidence before the Tribunal, over and above that which was before the Board, to address the question of serious risk. The Board is a body comprised of (among others) individuals appointed for their expertise in the profession of nursing. The Board has had the advantage, in making the Decision, of viewing CCTV footage of [RN Sunil’s] practise. It has had the advantage of [RN Sunil’s] explanations for her conduct. And it has exercised its own expert judgment as to the nature and extent of the risk posed by [RN Sunil] having viewed the CCTV footage and having considered [RN Sunil’s] submissions. That is significant where, at this interim stage, the Tribunal is not constituted by any professional member from the nursing profession. 
Thirdly, [RN Sunil’s] suggestion that a stay could be granted subject to her undertaking to only work in public health facilities pending the outcome of the substantive review application does not ameliorate the serious risk posed. In reaching the Decision, the Board was aware of (and considered) the fact that [RN Sunil] had no previous disciplinary record and that no further concerns had been raised in respect of [RN Sunil’s] practise after her employment was terminated with Greenwood Manor. The Board nonetheless concluded that lesser forms of immediate action (or no action) would be insufficient, including because the ‘concerns raised relate to the core competencies of a registered nurse, including providing safe and effective nursing care’.
Fourthly, the effect of a stay would be to leave the serious risk identified by the Board relevantly unprotected until the substantive review proceeding could be determined. This would: 
i.	subvert the purpose of the Decision (to provide immediate and ongoing interim protection to the public); 
ii.	be inconsistent with the paramount consideration of the protection of the public; 
iii.	be contrary to the intention of the National Law, which contemplates that such decisions are ordinarily made by an expert body constituted by members that include registered nurses (whether on the Board, on a Panel, or in the Tribunal in the substantive review hearing).
43	I further describe the Board’s submissions when considering each of the stay criteria.
The stay criteria
Whether failure to grant a stay would render the application for review nugatory
44	The Board submitted that RN Sunil has not established that her application for review would be rendered nugatory (or of no value) absent a stay. I quote:
It is accepted that the Decision will have an impact on [RN Sunil]. However, it is not correct to say that the imposition of supervision conditions is tantamount to a decision to suspend her registration. Rather, [RN Sunil] is permitted to practise, but only subject to supervision. While [RN Sunil’s] employer says it will not support her to return to work while the conditions remain in place: 
a)	there is no evidence as to other attempts [RN Sunil] has made (if any) to find work subject to supervision;
b)	[RN Sunil’s] employer does not say that she will be permitted to return to work with it if the stay is granted, only that they would ‘review these changes accordingly’.
It follows that [RN Sunil] has not established that she: 
a)	is (as claimed) suspended from practise because of the supervision conditions; and 
b)	will be able to return to her previous employer if the Decision is stayed. 
And even if the Decision did have the practical effect of preventing [RN Sunil] from practising, it does not follow that the substantive application for review would be rendered nugatory absent a stay. That is, there is no evidentiary basis to conclude that (if the IAC Decision is not stayed but [RN Sunil] ultimately succeeds in her application for review) [that RN Sunil] would not be able to find work again as a registered nurse. The substantive review application would retain utility even absent a stay. 
45	I accepted that the evidence that the supervision condition on RN Sunil’s registration has amounted to suspension of registration, in part based on the email from Monash. This seems unsurprising in the budgetary position that hospitals find themselves in. This is one of many cases where VCAT hears those conditions on registration results in health practitioners not being able to find employment. 
46	While there could have been more evidence from RN Sunil as to the financial impact on her and others (if applicable) of not being able to find employment as a nurse since July 2023, I accept that given she is presumably needed to work for many years as a nurse, loss of income since July, apparently likely to be ongoing if a stay is not granted until this matter is heard and decided, will have highly significant negative impact on her. 
47	Presumably, if she succeeded in her application, the application will have been nugatory in the sense of say over a year’s income lost.
48	This criterion supports a stay order.
Whether or not a party will suffer prejudice if the application is granted or refused.
49	To the extent that not granting a stay may not render RN Sunil’s application to VCAT nugatory, on the evidence before me, adapting my views set out above, the potential and it appears likely loss of the year’s income would cause significant prejudice to RN Sunil.
Is there is a serious question to be tried in this application for review?
50	The Board submitted:
It is difficult to assess, at this stage, whether there is a serious question to be tried. The Board is an expert body that has made an assessment of the risk posed by [RN Sunil] in her practise as a registered nurse. There is no additional evidence before the Tribunal that would cast doubt on the Board’s conclusions in this respect. At this early stage, no panel including registered nurses has been constituted by the Tribunal. 
However, having regard to [RN Sunil’s] submissions, the Tribunal might consider that it cannot conclude that there is a serious question to be tried. 
First, [RN Sunil] is incorrect to submit that ‘Ahpra made a decision finding that [RN Sunil] had breached her duties…’, because: 
a)	it is the Board, made up as it is of individuals including those appointed for their expertise as registered nurses, who made the Decision, not Ahpra; 
b)	the Board did not, in reaching the Decision, make a finding that [RN Sunil] had breached her duties. And this is not what the Tribunal will be assessing in the substantive review. Rather, … the Board’s task under s 156(1)(a) was to consider (without detailed inquiry, but based on a proper assessment of the material available) whether it formed a reasonable belief that because of [RN Sunil’s] conduct and/or performance she poses a serious risk to persons and if so whether it is necessary to take immediate action to protect public health or safety. 
Second, [RN Sunil’s] submissions and affidavit are in places plainly inconsistent with the CCTV footage and demonstrate an ongoing failure of insight into the seriousness of her alleged failures. The submissions and evidence of concern in this regard include: 
a)	[RN Sunil’s] assertion that ‘she and other care assistant were unable to move the bed’. While this is borne out by the CCTV footage, it is apparent that [RN Sunil] should have been able to move the bed – it is clear (from review of later footage where another PCA does so with apparent ease) that moving the bed simply required the wheel lock on the bed to be loosened. 
b)	[RN Sunil’s] assertion that she ‘tried to keep the patient safe by placing a pillow between her head and the wall’ (emphasis added) is not borne out by the CCTV footage … which plainly shows [RN Sunil] throwing the pillow at or toward the [Patient A’s] head. 
c)	[RN Sunil’s] assertion that the CCTV shows her ‘pleading with [the Patient] in a sympathetic tone to not fall out of the bed please’ is inconsistent with the CCTV … in which [RN Sunil’s] tone is anything but sympathetic. 
d)	[RN Sunil’s] evidence that ‘the Tribunal will see that her suggesting the patient will stay on the floor all night is incorrect’ is inconsistent with the CCTV. 
e)	But even if the Tribunal concludes there is a serious question to be tried, it might reach the same conclusion in respect of the importance of that issue to the conclusion reached in another recent ‘serious risk’ case. In Goldman v Medical Board of Australia [2024] VCAT 545, the Tribunal said [at 66]: 
… the most informed risk analysis in this situation has been conducted by an expert committee which, on substantively the same evidence that is now before VCAT, decided there is serious risk. 
In this context, that there is a serious issue to be tried does not meaningfully support a stay.
Discussion
51	As said above, counsel for both parties submitted it was necessary that I view the CCTV footage. Sunil’s conduct towards Patient A is, in part, completely unacceptable and in part the actions of the caring nurse towards an elderly patient.
52	If this case concerned a referral by the Board alleging professional misconduct by RN Sunil (which presumably will follow), there would not be a serious question to be tried. Her unacceptable conduct would be characterised as professional misconduct. That said, questions as to determinations (on referral) may not have obvious answers.
53	However, this is an application for review where VCAT will stand in the shoes of the Board and decide whether immediate action should be taken under section 156.
54	In its decision the Board wrote of forming a reasonable belief that RN Sunil’s conduct poses a serious risk to persons because:
a)	of her lack of insight into her misconduct as demonstrated by her submissions to the IAC Committee;
b)	in an aged care setting failing to provide appropriate and compassionate care for the patient as evidenced by the CCTV footage with the risk that ‘a patient’s condition may deteriorate, health conditions may be exacerbated and/or risk of death’; and
c)	failure in obligations to store and safeguard scheduled medications in accordance with legislative, regulatory and local laws and policies.  
55	The Board decided that the minimum necessary intervention was the supervision condition, given RN Sunil’s past complaint free record with no further concerns raised in relation to her practice since Greenwood terminated her employment.
56	That said, in my view, there is serious question to be tried will be whether RN Sunil’s conduct causes reasonable belief that she poses a serious risk to patients, such that immediate action is necessary.
57	It is notable that while Greenwood terminated her employment, concern of any risk that she may pose to the community did not result in immediate notification to Ahpra (which surely would have happened if Greenwood was concerned with immediate serious risk to patients). The notification was nine months later.
58	This is the only reported unacceptable conduct by RN Sunil. Following this conduct she continued to work for nine months at Monash Health, apparently without any complaint.
59	Presumably, if there was any question of RN Sunil posing a risk to patients when working at Monash, her employment would not have continued.
60	Also, this is not a case of a nurse say, stealing medications (in a drip) at work, replacing those medications with water, in the knowledge that the fake medicine would be given to patients, posing serious risk.
61	I am not persuaded that RN Sunil’s treatment of Patient A, both unacceptable and acceptable, logically leads to a conclusion that Sunil’s conduct here poses a serious risk to persons moving forward. 
62	First, it is difficult to accept that the conduct toward Patient A had the capacity to cause serious injury in the form of a serious medical condition or, particularly, death. The conduct could certainly have caused distress and despair for a patient subject to that conduct.
63	It is difficult to accept that with RN Sunil having experienced suspension as the result of her conduct, understanding she will likely be the subject of a referral to the Tribunal on the basis of alleged professional misconduct would repeat such conduct posing future serious risk.
64	Second, without clear explanation as to the degree of risk posed, it is difficult to know what to make of the failure to properly secure medications, a critical competency in nursing, particularly in the terms of future serious risk.
65	Third, it is difficult to know what to make of Sunil’s mask failures, intermittent on the videos. For the vast majority of time she was wearing a mask. Greenwood’s termination letter alleges (without specifics) other mask failures. 
66	It is also difficult to assess what degree of risk such mask failures in aged care in 2023 and now in 2024 if repeated, pose to residents, where Sunil states that the RAT she undertook on the day of the conduct tested negative and there was no evidence of Covid in the nursing home. That said, clearly the mask failure was poor and concerning nursing practice.
67	While I respect the expertise of the IAC Committee, in my view their decision does not explain the logic by which their expertise was applied such that through a path of reasoning their view as to future serious risk was formed.
68	That there is a serious issue to be tried supports a stay.
Is a stay in the community or public interest?
69	Here, this criterion is essentially addressed broadly and concerning the other criteria in that clearly protection of the public from serious risk is always in the community or public interest and a paramount guiding principle under the National Law.
70	This criterion has no real independent role to play in this case.
The time until VCAT will decide the application for review
71	The Board submitted it is willing to accept an expedited hearing of the application for review and seeks to have the matter listed as soon as VCAT can accommodate a hearing. Presuming the matter can be listed promptly, any prejudice to RN Sunil by virtue of the stay application being refused would be limited. 
72	Unfortunately, VCAT remains beset with delay, meaning that this matter will not be listed, for hearing, until well into 2025.
73	This criterion supports a stay.
Whether RN Sunil facing these proceedings has incentive not to engage in further inappropriate behaviour for the duration of the proceeding
74	The incentive to not further engage in inappropriate behaviour, is consistent with the principal that restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
75	If RN Sunil, with experience of, what she says is and I accept is effective suspension, is able to return to practice, she has overwhelming incentive to conduct herself properly in accord with her duties and with the relevant code of conduct, while this proceeding progresses to final decision.
76	This has moved beyond the point where there was the possibility, not the reality, of immediate action where to an extent RN Sunil was somewhat cavalier in her submissions to the IAC Committee, such as blaming her undoubted misconduct on ethnicity.
77	RN Sunil would do well to consider the well-founded observations by the Board as to elements of lack of insight by her into the situation.
78	She has taken a step forward in this respect through her further online education. However, from what one can gather from the documented training, it was brief and minimal. RN Sunil would be wise to participate in further education aimed at supporting her moving forward acting appropriately and caringly toward all patients.
79	This criterion supports staying of the suspension.
Whether any stay should be granted subject to conditions
80	In a situation where RN Sunil seeks that conditions on her registration be lifted, this is not applicable.
Decision
81	Bringing the criteria together, they support staying the IAC Decision.
82	I accept not granting the stay will render a decision by VCAT in 2025 nugatory at least in the sense of perhaps a year of lost income and perhaps in terms of broader financial harm.
83	There is a serious question to be tried in terms of whether RN Sunil poses a serious risk to persons.
84	The stay is in the public, permitting a health practitioner to continue to work, subject to the outcome of an eventual Tribunal decision.
85	RN Sunil has high motivation to treat all patients at all times with the highest respect, be fastidious in securing medications and similarly in mask wearing where that is required.
86	Therefore, the decision under review is stayed.
Next steps in this proceeding
87	In order to progress this application to hearing as soon as possible, an administrative mention is scheduled on 2 December 2024, after which with the Tribunal Book in this proceeding provided, the final hearing will be scheduled.

Ian Proctor
Deputy President