VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z516/2020	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law, s 196 – Two allegations of unprofessional conduct and five allegations of professional misconduct by nurse relating to presentation of a forged prescription at a pharmacy and misappropriating a Schedule 8 drug while working at an aged care facility – Impact of nurse no longer being registered and failing to participate in the proceeding.

APPLICANT	Nursing and Midwifery Board of Australia	
RESPONDENT	Ms Kathryn Lovett	
WHERE HELD	Melbourne	
BEFORE	Member R. Tang, AM
Member M. Archibald, PSM
Member R. Pearson	
HEARING TYPE	Hearing via video conference	
DATE OF HEARING	3 March 2021	
DATE FOR Respondent’s final submissions	31 March 2021	
DATE OF WRITTEN REASONS	11 May 2021	
CITATION	Nursing and Midwifery Board of Australia v Lovett (Review and Regulation) [2021] VCAT 464	

findings
1	The Tribunal finds Ms Kathryn Lovett engaged in professional misconduct within the definition in paragraphs (a) and (c) of the definition of ‘professional misconduct’ in section 5 of the Health Practitioner Regulation National Law (National Law) in respect of each of the following allegations:
(a)	Allegation 1: on 15 August 2016 at the Frankston Magistrates’ Court Ms Lovett was found guilty, convicted and fined $400 with respect to the following offences:
(i)	one count of receipt of stolen goods on 10 July 2015 contrary to section 88(1) of the Crimes Act 1958 (Vic) (Crimes Act); and
(ii)	one count of uttering a forged prescription on 10 July 2015 contrary to section 77 of the Drugs, Poisons & Controlled Substances Act 1981 (Vic) (DP&C Act).
(b)	Allegation 2: on 12 May 2017, while working at Cumberland View Aged Care Facility (Facility), she:
(i)	misappropriated a Schedule 8 drug of dependence, namely one tablet of Targin (Oxycodone); and
(ii)	inappropriately removed and returned a Schedule 4 drug, namely 12 Tramadol tablets, from a Webster-Pak at the Facility.
(c)	Allegation 3: on 19 December 2018 at Ringwood Magistrates Court, Ms Lovett was found guilty without conviction, and gave an undertaking of good behaviour for, the theft of one tablet of Targin, contrary to section 74 of the DP&C Act.
2	The Tribunal finds Ms Kathryn Lovett engaged in unprofessional conduct within the definition in paragraph (a) of the definition of ‘unprofessional conduct’ in section 5 of the National Law in respect of each of the following allegations:
(a)	Allegation 4: Ms Lovett failed to meet her obligations under section 130 of the National Law to notify the Board of a relevant event within 7 days, namely that, she was charged with offences punishable by 12 months imprisonment or more.
(b)	Allegation 5: Ms Lovett failed to meet her obligations under section 130 of the National Law to notify the Board of a relevant event within 7 days, namely that she had been found guilty and/or convicted of an offence punishable by imprisonment. 
3	The Tribunal finds Ms Kathryn Lovett engaged in professional misconduct within the definition in paragraph (b) of the definition of ‘professional misconduct’ in section 5 of the National Law in respect of Allegations 4 and 5, taken together.
4	The Tribunal finds Ms Kathryn Lovett engaged in professional misconduct within the definition in paragraph (a) of the definition of ‘professional misconduct’ in section 5 of the National Law in respect of Allegation 6, being that Ms Lovett failed to meet her obligations under section 109(1)(b) of the National Law when she declared no change to her criminal history in the preceding period of registration on her 2016-2017 renewal of registration.

Orders
1	Under section 196(2)(a) of the National Law, Ms Kathryn Lovett is reprimanded.
2	Under section 196(4)(a) of the National Law, Ms Kathryn Lovett is disqualified from applying for registration as a registered health practitioner for a period of 24 months.

R. Tang, AM
Presiding Member	M. Archibald, PSM
Health Practitioner Member	R. Pearson
Health Practitioner Member	

APPEARANCES:		
For Applicant 	Mr M Condello, solicitor	
For Respondent	No appearance	

NOTE: ORDERS UNDER THE OPEN COURTS ACT 2013 ARE IN FORCE
On 3 March 2021, the Tribunal made the following orders:
1.	Any report of the whole or any part of this proceeding, or of any information derived from this proceeding, which identifies or has the effect of identifying the patients the subject of these proceedings and the notifiers to be identified must not be published or otherwise disclosed.  
2.	This order applies throughout Australia.  The Tribunal’s reasons for decisions are published on the AustLII website, which is accessible 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 death of all of the people referred to in order 1.

Reasons
1	By letter dated 24 June 2020, the Nursing and Midwifery Board of Australia (Board) referred six allegations regarding the conduct of Ms Kathryn Lovett to the Tribunal under the Health Practitioner Regulation National Law (National Law).
2	Broadly, the allegations relate to:
(a)	Ms Lovett being found guilty, convicted and fined on 15 August 2016 in respect of the receipt of stolen goods and the uttering of a forged prescription, relating to her presentation of a prescription for Oxycontin at the Nova Pharmacy at the Gateway shopping centre in Langwarrin on 10 July 2015 (Allegation 1);
(b)	Ms Lovett misappropriating one tablet of Targin (Oxycodone) and inappropriately removing and returning 12 Tramadol tablets from a Webster-Pak while working at the Cumberland View Aged Care Facility (Facility) (Allegation 2) and, on 19 December 2018, being found guilty, without conviction, of the theft of one tablet of Targin (Allegation 3); 
(c)	Ms Lovett failing to notify the Board when she was charged with, and subsequently found guilty and/or convicted of, those criminal offences, as required under the National Law (Allegations 4 and 5); and
(d)	Ms Lovett failing to provide a statement detailing the changes in her criminal history when she renewed her nursing registration for the 2016-2017 year, as required under the National Law (Allegation 6).
3	It is relevant to note that Ms Lovett’s registration lapsed on 31 May 2017 and she has not been registered as a nurse since that time.
4	The Board submitted that the Tribunal should find Ms Lovett engaged in unprofessional conduct and professional misconduct as defined in the National Law in respect of the allegations.  For the reasons discussed below, we have made those findings.
5	The Board also submitted that the Tribunal should reprimand Ms Lovett and disqualify her from applying to be registered again for a period of 24 months.  For the reasons discussed below, we agreed those determinations are appropriate.
Ms Lovett’s participation in the proceeding
6	Under section 98(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal is bound by the rules of natural justice, including the right to a hearing.  However, under section 99, if a person to whom notice of hearing has been given fails to attend, the hearing may proceed in the person’s absence.  It is relevant to observe that the right to natural justice is preserved by section 120, which allows a person who did not appear and was not represented at hearing, to apply to re-open the order.  
7	Ms Lovett appeared by telephone at a directions hearing, held on 5 August 2020, which was before the Presiding Member.  However, she did not appear (and was not represented) at the compulsory conference by video conference on 2 December 2020, or at the hearing by video conference on 3 March 2021.
8	In orders made by the Presiding Member on 13 January 2020, the Tribunal found that Ms Lovett had been personally served with the Tribunal Book on 22 December 2020.  Those orders set out the findings that the Board submitted should be made, and the proposed determinations the Board sought, and included a warning that, if she did not appear at the hearing, the Tribunal might proceed in her absence and would decide whether to make the findings and/or determinations requested by the Board.
9	In those circumstances, we were satisfied that the hearing could proceed on 3 March 2021.
10	Further, at the hearing, the Tribunal made orders granting leave for: 
•	the Board to file further submissions by 17 March 2021 regarding the imposition of a global penalty in respect of all of the allegations and the application of specific deterrence in circumstances where a respondent does not appear at the final hearing; and
•	Ms Lovett to file submissions in reply by 31 March 2021.  The orders made clear that this represented Ms Lovett’s final opportunity to make any submissions before the Tribunal reached its decision in the proceeding.
11	The Board’s further submissions were received by the Tribunal by email dated 17 March 2021, which was copied to Ms Lovett.  Ms Lovett did not file any submissions in reply by 31 March 2021, and has not filed any submissions or otherwise contacted the Tribunal since that time.
Findings as to Ms Lovett’s conduct the subject of the allegations
12	The conduct the subject of the allegations is set out in the particulars for each allegation in the Amended Notice of Allegations, which is set out in the Appendix to these Reasons.  
13	The Applicant’s Submissions in Support of Proposed Findings and Determinations dated 17 December 2020 (Applicant’s Submissions) provide a convenient summary of the underlying facts, which includes references to the supporting evidence from the Tribunal Book.
Allegation 1
14	As already noted, this allegation relates to Ms Lovett being found guilty, convicted and fined on 15 August 2016 in respect of the receipt of stolen goods and the uttering of a forged prescription, relating to her presentation of a prescription for Oxycontin at the Nova Pharmacy at the Gateway shopping centre in Langwarrin on 10 July 2015.  The summary from the Applicant’s Submissions (including the Board’s references to the supporting material in the Tribunal Book) is as follows:
7.1	On 10 July 2015, the Respondent entered Nova Pharmacy at Gateway shopping centre Langwarrin and presented a prescription for Oxycontin signed by [a doctor – name redacted]. The reverse of the prescription evidenced that it originated from [a medical clinic – name redacted].
7.2	The prescription presented by the Respondent was not an authentic prescription.
7.3	On 26 May 2016, the Respondent was charged with, inter alia:
(a)	one count of receipt of stolen goods on 10 July 2015 contrary to section 88(1) of the Crimes Act 1958 (Vic) (Crimes Act); and
(b)	one count of uttering a forged prescription on 10 July 2015 contrary to section 77 of the Drugs, Poisons & Controlled Substances Act 1981 (Vic) (DP&C Act).
7.4	On 15 August 2016 at [Frankston] Magistrates Court, the Respondent pled and was found guilty of the two charges referenced directly above, convicted and fined $400.
Allegation 2
15	This allegation relates to Ms Lovett misappropriating one tablet of Targin (Oxycodone) and inappropriately removing and returning 12 Tramadol tablets from a Webster-Pak while working at the Facility.  The summary from the Applicant’s Submissions is as follows:
8.1	On 12 May 2017, the Respondent was an agency nurse working at the Cumberland View Aged Care Facility (Facility). During her shift, the Respondent inappropriately removed and returned a Schedule 4 drug, namely 12 tramadol tablets, from a [Webster-Pak] at the Facility.
8.2	The Respondent’s actions were discovered during a daily review of Schedule 4 and 8 medications on Saturday 13 May 2017, where it was noticed that a dose administration aid (DAA) containing 12 tramadol tablets (a Schedule 4 narcotic-based medication) had been tampered with and surgical tape had been applied to the back of the pack.
8.3	CCTV footage of the medication room for the period 12 to 13 May 2017 showed the Respondent entering the room and looking through the residents’ DAAs. The Respondent is seen taking out a DAA that contained tramadol and “popping” the blister pack. The DAA was assigned to a particular resident, and therefore contained medication prescribed specifically for the resident.
8.4	CCTV later in the same shift shows the Respondent entering the medication room with a trolley and taping a DAA closed.
8.5	At the Facility, there were specific guidelines in relation to medications open to misuse, such as Tramadol. These guidelines stipulated that, where a drug such as Tramadol was required for a resident, the Team Leader (usually an enrolled nurse) should contact the supervisor (usually a registered nurse) and ask for the resident to be assessed. Once the resident was assessed and a need for the medication is confirmed, both the Team Leader and the Supervisor would administer the medication from the resident’s DAA. If a Team Leader of Supervisor mistakenly “popped” a DAA in error, they were required to complete an incident form, and the Team Leader was required to report the incident to the Supervisor immediately.
8.6	Ms Lovett did not: 
(a)	contact a supervisor during her shift to advise that the resident required an assessment, and there is no evidence to suggest that the patient in fact required Tramadol;
(b)	inform the supervisor or complete an incident form indicating that she had noticed that the resident’s DAA had tape over the back of it or appeared to have been tampered with;
(c)	inform the supervisor that she had removed 12 Tramadol tablets from the resident’s DAA, which was stored in the locked cabinet, nor did she inform the supervisor that she had returned the tablets;
(d)	complete an incident report indicating that she had removed and/or returned the 12 Tramadol tablets to the DAA or placed tape over the back of the DAA.
Allegation 3
16	This allegation relates to Ms Lovett, on 19 December 2018, being found guilty, without conviction, of the theft of one tablet of Targin.  The summary from the Applicant’s Submissions is as follows:
9.1	On Monday 15 May 2017, it was noticed that one “Targin” (Oxycodone) tablet was missing from a DAA. CCTV footage showed that on 12 May 2017, Ms Lovett removed a Targin tablet from a patient’s DAA scheduled for Monday 15 May 2017. There was no incident form explaining why a dose may have been administered early.
9.2	On 23 November 2017, the Respondent was charged with, inter alia, the theft of medication, being one tablet of Targin.
9.3	On 19 December 2018, at Ringwood Magistrates’ Court, the Respondent was found guilty without conviction and gave an undertaking of good behaviour for the theft of one tablet of Targin contrary to section 74 of the DP&C Act.
Allegation 4
17	This allegation relates to Ms Lovett failing to notify the Board when she was charged with the offences referred to in Allegations 1 and 3, as required under the National Law.  The summary from the Applicant’s Submissions is as follows:
10.1	On 26 May 2016, the Respondent was charged with the following offences, punishable by 12 months imprisonment or more: 
(a)	dishonest receipt of a blank prescription by or on behalf of another, believing the prescription to be stolen, contrary to section 88(1) of the Crimes Act;
(b)	uttering a false script, being a prescription for oxycontin 30 mg in another’s name to induce Nova Pharmacy to accept that prescription for a drug of dependence, contrary to section 77 of the DP&C Act; and
(c)	two charges of making a false document with the intention that she use that document to induce Nova Pharmacy to accept that document as being genuine, and relying on that document acted to their prejudice, contrary to section 83A(1) of the Crimes Act.
10.2	On 23 November 2017, the Respondent was charged with, inter alia, the following offences, punishable by 12 months imprisonment or more:
(a)	one count of theft of 12 Tramadol, being property belonging to Cumberland View Aged Care Living, under s 74(1) of the Crimes Act; and
(b)	one count of theft of 1 Targin, being property belonging to Cumberland View Aged Care Living, under s 74(1) of the Crimes Act.
10.3	The Respondent did not notify the Board of being charged with the offences referenced above, each of which was punishable by 12 months imprisonment or more.
Allegation 5
18	This allegation relates to Ms Lovett failing to notify the Board when she was found guilty and/or convicted of the offences referred to in Allegations 1 and 3 as required under the National Law.  The summary from the Applicant’s Submissions is as follows:
11.1	The Respondent was found guilty and/or convicted of the offences referenced at paragraphs 7.4 and 9.3, each of which was an offence punishable by imprisonment.
11.2	The Respondent did not notify the Board that she had been found guilty and/or convicted of those offences.
Allegation 6
19	This allegation relates to Ms Lovett failing to provide a statement detailing the changes in her criminal history when she renewed her nursing registration for the 2016-2017 year, as required under the National Law.  The summary from the Applicant’s Submissions is as follows:
12.1	On 28 June 2016, the Respondent made an online application for renewal of her nursing registration. The declaration asked “Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?” The Respondent answered “No”.
12.2	Ms Lovett answered “Yes” to the declarations relating to meeting the Board’s requirements for continuing professional development and recency of practice.
12.3	Due to the matters set out at paragraph 10.1, the Respondent’s declaration was dishonest.
Findings as to particulars of allegations
20	The Tribunal is comfortably satisfied that the particulars of each allegation have been established, having regard to the documentary evidence and CCTV footage included in the Tribunal Book and as referenced in the Applicant’s Submissions.
Characterisation of Ms Lovett’s conduct
Principles regarding characterisation
21	The National Law defines ‘unprofessional conduct’, in the context of a registered health practitioner, as including a contravention by the practitioner of the National Law.
22	A health practitioner has many obligations under the National Law, including to notify the relevant health practitioner board within 7 days of certain ‘relevant events’.  The matters which must be notified include where the practitioner is charged with an offence punishable by 12 months imprisonment or more or is found guilty of an offence punishable by imprisonment.
23	Part of the context for the obligation is the power of health practitioner boards to take immediate action, including to suspend a health practitioner or impose conditions on his or her registration, where the practitioner poses a serious risk to persons or the action is necessary to protect public health or safety.  Obviously, this can be necessary depending on the nature of the offending involved, and the efficacy of this power is contingent on health practitioner boards becoming aware of issues of concern in a timely manner.  

24	The National Law defines ‘professional misconduct’, in the context of a registered health practitioner, as including: 
(a)	unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and  
(b)	more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)	conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
25	In assessing whether conduct is substantially below the standard expected of a registered health practitioner, a code approved by the relevant health practitioner board is ‘evidence of what constitutes appropriate professional conduct or practice for the health profession’.  
26	The conduct to which the allegations relate occurred between 10 July 2015 and December 2018.  There were two codes in place over that period, being:
•	the Code of Professional Conduct for Nurses in Australia, operative from 7 May 2013 to 28 February 2018 (CPC); and
•	the Code of Conduct for Nurses, operative from 1 March 2018 (CCN).
27	Under the CPC, which is relevant to all of the allegations other than Allegation 6, nurses are required to: 
•	practice in a safe and competent manner, including not being compromised by substances that may alter their capacity to practise safely at all times;
•	practice in accordance with the standards of the profession and broader health system, including to make any questionable, unethical or unlawful practice known to an appropriate person or authority;
•	practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing, including to ensure they do not engage in clinical or other practices prohibited by such laws; 
•	support the health, wellbeing and informed decision making of people requiring or receiving care; 
•	to maintain and build the community’s trust and confidence in the nursing profession, recognising that unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good reputation and standing in the eyes of the public; and
•	practice reflectively and ethically, including evaluating their own conduct and competency and advising employers of any reduction in their capacity to practise.
28	Under the CCN, which is relevant to Allegation 6, nurses must be aware of and abide by their obligations under the National Law, including reporting requirements.
29	Whether a person is a fit and proper person to hold registration as a nurse goes to matters of character and moral rectitude.  
30	The Board contends that Ms Lovett’s conduct in relation to: 
•	each of Allegations 1, 2 and 3 amounts to professional misconduct within the meaning of paragraphs (a) and/or (c) of the definition of that term;
•	each of Allegations 4 and 5 amounts to unprofessional conduct and that, when taken together, amount to professional misconduct within the meaning of paragraph (b) of the definition; and
•	Allegation 6 is professional misconduct within the meaning of paragraph (a) of the definition.
Allegations 1, 2 and 3
31	Ms Lovett’s conduct, the subject of Allegations 1, 2 and 3, was unethical and (except in relation to the particulars relating to the Webster-Pak) unlawful.  
32	Allegations 2 and 3 concern conduct which occurred in the course of Ms Lovett’s employment as a nurse and had the potential to directly impact on residents of the Facility under her care. 
33	Although Allegation 1 relates to conduct in her personal life, it is self-evident that the theft of a prescription pad and the presentation of a forged prescription by a nurse is likely to affect the good reputation and standing of the nursing profession.  
34	The public should be able to trust registered nurses to handle therapeutic drugs appropriately, and not steal them or obtain them by deception.
35	There is little doubt that the conduct was contrary to the CPC and we are comfortably satisfied that, in each case, the conduct was substantially below the standard reasonably expected of Ms Lovett and so within paragraph (a) of the definition of professional misconduct in the National Law.
36	In relation to whether Ms Lovett was a fit and proper person to hold registration as a nurse, it is relevant to note that the offences with which she was charged were serious and were punishable by a term of imprisonment of 12 months or more.
37	We accept the Board’s submission that, given the proximity between her conviction the subject of Allegation 1 and the conduct the subject of Allegations 2 and 3, Ms Lovett’s conduct cannot be dismissed as a ‘one off lapse in judgement’.
38	Similar conduct by a nurse has been held to amount to professional misconduct under paragraph (c) of the definition in the National Law.  
39	As already noted, the theft of the Targin tablet had the potential to undermine the safety of a patient at the Facility.  It is unknown whether the conduct associated with removal and return of the Tramadol tablets from the Webster-Pak was deliberate or inadvertent, although we accept the Board’s submission that Ms Lovett accessed the Webster-Pak without following the guidelines set by the Facility.  We note that Ms Lovett has chosen not to participate in the proceeding, depriving herself of the opportunity to explain her failure in this regard.
40	For these reasons, we are also comfortably satisfied that Ms Lovett was not a fit and proper person to hold registration as a nurse at the time of the conduct in question and so falls within paragraph (c) of the definition of professional misconduct in the National Law.
Allegations 4 and 5
41	As we are comfortably satisfied that Ms Lovett failed to notify the Board when she was charged and then found guilty and/or convicted of the offences the subject of Allegations 1 and 3, it necessarily follows that we must be comfortably satisfied that she engaged in unprofessional misconduct on each occasion. 
42	We have already explained the context for the obligation of health practitioners to notify the relevant board of their offending.  
43	The Board submits that, when taken together, the contraventions of section 130 of the National Law the subject of Allegations 4 and 5 constitute professional misconduct.  The Board observes that by ‘failing to comply with the notification requirements, health practitioners severely curtail the Board’s ability to perform its regulatory function and put the public at significant risk’.
44	We accept the Board’s submission that the repeated nature of the contraventions supports the characterisation of the conduct as ‘substantially below’ the standard reasonably expected of a health practitioner and, as such, professional misconduct within paragraph (b) of the definition in the National Law.
Allegation 6
45	On 25 May 2016, Ms Lovett was charged with four offences relating to the presentation of the forged prescription to the Nova Pharmacy in July 2015. 
46	Ms Lovett renewed her nursing registration for the 2016-2017 year on 28 June 2016.  She did not comply with the requirement in section 109(1)(b) to provide the Board with a statement with details of any change in her criminal history.  Instead, she indicated that there had not been any change.
47	The Board contends that this contravention of the National Law amounts to professional misconduct because it ‘involved a proactive dishonest act’.  The Board referred us to other cases where the provision of false or misleading information to a health practitioner board was considered by the relevant Tribunal to amount to professional misconduct. 
48	We agree that, by ticking ‘no’ in response to the question on the online renewal application about any changes to her criminal history, Ms Lovett misled the Board and engaged in conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, and so within paragraph (a) of the definition of professional misconduct in the National Law.
Determinations
General principles
49	Where a practitioner has been found to have engaged in conduct amounting to professional misconduct, the Tribunal can caution or reprimand, impose conditions on registration, fine, suspend or cancel the registration of a practitioner.  If a person no longer holds registration, the Tribunal can also impose a period of disqualification during which time a practitioner cannot apply to be registered.
50	As noted in Medical Board of Australia v Jansz:
Determinations consequent upon adverse findings in relation to members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession, in the sense of maintaining its stature and integrity in the eyes of the public.
51	While the power to make determinations is not intended to be punitive, specific and general deterrence, as well as the facilitation of rehabilitation, will be relevant. 
52	Relevant factors to be considered by the Tribunal include the nature and seriousness of the conduct, evidence of contrition, the need or otherwise for specific deterrence, other disciplinary findings, evidence of character, evidence of rehabilitation, any delay between the start of the investigation until the completion of the Tribunal hearing, and other mitigating factors.  Also relevant is the degree of insight that the practitioner has into his or her offending conduct.
53	Personal matters such as shame, personal ordeal and financial difficulty are of little relevance.  On the other hand, assessment of the ongoing risk posed by the practitioner is of central importance.
54	Penalties which have been ‘imposed in other cases involving similar or analogous conduct will be a useful guide to proportionality’, although this does not ‘override the need to consider the unique facts and circumstances of the case at hand’.
55	At common law, a penalty should ordinarily be imposed for each separate allegation, however it may be appropriate to impose a global penalty for multiple allegations if the relevant conduct is a ‘course of behaviour as opposed to a set of separate events’ and the ‘facts of the case are so inextricably interwoven as to make it difficult to meet a clear standard of prescription’.  Determinations in the nature of global penalties have been made in these circumstances in relation to disciplinary matters under the National Law.
Should a global determination be made?
56	The Board submits that the six allegations ‘constitute a course of behaviour’, and involves conduct which is ‘inextricably interwoven’, such that a global penalty is appropriate.  In particular, the Board points to:
•	the ‘dishonest misappropriation of medication’ being a common feature of Allegations 1 to 3;
•	the failures to notify the subject of Allegations 4 and 5, and the failure to declare the criminal history the subject of Allegation 6, being ‘directly interwoven’ with the conduct underlying Allegations 1 to 3; and
•	the failure to declare the criminal history the subject of Allegation 6 preventing the Board from taking immediate action, which ‘led to [Ms Lovett] having the opportunity to engage in the conduct underlying Allegations 2 and 3’.
57	The Board referred to a number of decisions of VCAT and tribunals in other states in support of its contentions.
58	While the offences which Ms Lovett was found guilty of on 15 August 2016 (relating to the false prescription) are technically different to the offence she was found guilty of on 19 December 2018 (relating to the theft of the Targin tablet), and occurred in different contexts (ie. in her work as a nurse or in her personal life), we accept the Board’s submissions that they share a common feature that relates to misappropriation of controlled drugs.  
59	We also accept that the conduct the subject of Allegation 2 is necessarily ‘interwoven’ with the offending the subject of Allegation 3, and that Allegations 4 and 6 relate to conduct which is ‘interwoven’ with the underlying offending the subject of Allegations 1 and 3.
60	For these reasons, we agree that a global determination is appropriate.
Reprimand
61	We agree it is appropriate that Ms Lovett be reprimanded for the conduct the subject of the allegations.  The offending was of a serious nature and either related directly to patient care or was of a nature that would adversely impact on the reputation of Ms Lovett and the wider nursing profession.  The failures to notify that offending are also significant, as those notification obligations are ‘central planks of the regulatory scheme established under the National Law’.
Disqualification
62	The Board submits there ‘is a clear need to impose a disqualification period, in order to maintain proper ethical and professional standards for the protection of the public’.  It says that specific deterrence is required in this case as Ms Lovett has ‘demonstrated no insight into her conduct’, such that the Tribunal cannot be satisfied she will ‘refrain from engaging in such conduct again if she does regain her registration’.
63	The Board has indicated that the period of disqualification it seeks has been determined having regard to:
•	the seriousness of Ms Lovett’s criminal conduct;
•	her failure to engage with the investigation and hearing process or to otherwise evidence any insight;
•	Allegation 6 relating to the deliberate and wilful misleading of the Board; and
•	the period of time over which the conduct occurred, demonstrating it was not a ‘one-off lapse in judgement’.
64	It is also suggested by the Board that a disqualification period of two years is ‘within the range of determinations made by responsible Tribunals in similar matters’.
65	At the end of the hearing, we granted the Board leave to file further submissions regarding the question of specific deterrence in circumstances where the relevant practitioner did not appear at the final hearing.
66	The Board’s further submissions contend that, if a practitioner engages in conduct, then ‘absent evidence of insight and remorse, the starting point should be that they may be predisposed to engage in similar conduct again’, and the burden shifts to the practitioner to ‘prove that there is no basis to impose a determination to achieve the goal of specific deterrence’. 
67	No authority is cited by the Board in support of the proposition relating to a practitioner’s predisposition and it strikes us as somewhat bold as a general proposition.  
68	Even the commentary regarding the burden of proof is somewhat misplaced, as it is for the Board to prove its case and convince the Tribunal of the appropriateness of the determinations sought.
69	In the practitioner’s absence, which may be for a range of reasons, no favourable finding can be made about insight and remorse but, equally, it should not be inferred from ‘mere absence that [the practitioner] has no remorse or insight and had made no proper efforts towards rehabilitation’. 
70	In the present case, however, we agree that specific deterrence has some relevance in light of the fact that Ms Lovett engaged in the conduct the subject of Allegation 2 after she had already been found guilty of earlier offending involving misappropriation of drugs (ie. the conduct the subject of Allegation 1).  The 2016 finding of guilt, together with the conviction and fine imposed, should have been a ‘wake-up call’ for Ms Lovett.  The facts suggest it was not.  Instead, the behaviour of concern escalated from Ms Lovett’s personal life to her work as a nurse.
71	Further, general deterrence remains significant and the proposed period of disqualification is in line with other cases.
72	Having regard to all of these considerations, we agreed that Ms Lovett should be disqualified from re-applying for registration and that a period of two years is appropriate in all the circumstances.

R. Tang, AM
Presiding Member	M. Archibald, PSM
Health Practitioner Member	R. Pearson
Health Practitioner Member	

Appendix
Amended Notice of Allegations
The allegations in respect of Kathryn Lovett referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Nursing and Midwifery Board of Australia (Board) pursuant to section 193(1)(a) of the Schedule to the Health Practitioner National Law (Victoria) Act 2009 (National Law) are:
1.	Ms Lovett engaged in professional misconduct within paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; and/or unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that on 15 August 2016 at the Frankston Magistrates Court Ms Lovett was found guilty, convicted and fined $400 with respect to the following offences:
(i)	one count of receipt of stolen goods on 10 July 2015 contrary to section 88(1) of the Crimes Act 1958 (Vic) (Crimes Act); and
(ii)	one count of uttering a forged prescription on 10 July 2015 contrary to section 77 of the Drugs Poisons & Controlled Substances Act 1981 (Vic) (DP&C Act).
Particulars
(a)	On 10 July 2015, Ms Lovett entered Nova Pharmacy at Gateway shopping centre Langwarring and presented a prescription for Oxycontin signed by [a doctor – name redacted]. The reverse of the prescription evidenced that it originated from [a medical clinic – name redacted].
(b)	On 26 May 2016, Ms Lovett was charged with, inter alia, one count of receiving of stolen goods being the prescription pad and one count of uttering a forged prescription.
(c)	On 15 August 2016 at the [Frankston] Magistrates Court, Ms Lovett pled and was found guilty of the two charges in 1(b), convicted and fined $400.
(d)	By engaging in the conduct above, Ms Lovett has on each occasion failed to adhere to the following sections of the “Code of Professional Conduct for Nurses effective 7 May 2013” (Code) to which nurses must comply. In particular breaching the requirements that nurses must:
A.	Conduct Statement 3: Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing.
1)	Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.
B.	Conduct Statement 9: Nurses maintain and build on the community’s trust and confidence in the nursing profession.
1)	The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
2)	The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.
2.	Ms Lovett engaged in professional misconduct within paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; and/or unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that on 12 May 2017, while working at Cumberland View Aged Care Facility (Facility), she:
(i)	misappropriated a Schedule 8 drug of dependence, namely one tablet of Targin (Oxycodone); and
(ii)	inappropriately removed and returned a Schedule 4 drug, namely 12 Tramadol tablets, from a Webster Pak at the Facility.
Particulars
(a)	On 12 May 2017, Ms Lovett was an agency nurse working at the Facility.
(b)	During a daily review of Schedule 4 and 8 medications on Saturday 13 May 2017, it was noticed that a dose administration aid (DAA) containing 12 tramadol tablets had been tampered with and surgical tape had been applied to the back of the pack.
(c)	CCTV footage of the medication room for the period 12 May 2017 showed Ms Lovett entering the room and looking through the residents DAAs. She is seen taking out a DAA that contained tramadol and “popping” the blister pack.
(d)	CCTV later in the same shift shows Ms Lovett entering the medication room with a trolley and taping a DAA closed.
(e)	On Monday 15 May 2017, it was noticed that one ‘Targin’ (Oxycodone) tablet was missing from the DAA. CCTV footage showed that on 12 May 2017, Ms Lovett removed a Targin tablet from a patient’s DAA scheduled for Monday 15 May 2017. There was no incident form explaining why a dose may have been administered early.
(f)	By engaging in the conduct above, Ms Lovett has on each occasion failed to adhere to the following sections of the Code to which nurses must comply. In particular breaching the requirements that nurses must:
A.	Conduct Statement 1: Nurses practise in a safe and competent manner:
1)	Nurses practise in a safe and competent manner that is not compromised by personal health limitations, including the use of alcohol of other substances that may alter a nurse’s capacity to practise safely at all times. Nurses whose health threatens their capacity to practise safely and competently have a responsibility to seek assistance to redress their health needs. This may include making a confidential report to an appropriate authority.
B.	Conduct Statement 2: Nurses practise in accordance with the standards of the profession and broader health system
1)	Nurses’ primary responsibility is to provide safe and competent nursing care. Any circumstance that may compromise professional standards, or any observation of questionable, unethical or unlawful practice should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and competent care, nurses must intervene to safeguard the individual and after exhausting internal processes, may notify an appropriate authority external to their employer organisation.
C.	Conduct Statement 3: Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing.
1)	Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.
D.	Conduct Statement 7: Nurses support the health, wellbeing and informed decision making of people requiring or receiving care.
E.	Conduct Statement 9: Nurses maintain and build on the community’s trust and confidence in the nursing profession.
1)	The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
2)	The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.
F.	Conduct Statement 10: Nurses practise reflectively and ethically.
1)	Nurses evaluate their conduct and competency according to the standards of the nursing profession.
2)	Nurses advise employers and any persons in their care of any reduction in their capacity to practise due to health, social or other factors while they seek ways of redressing the problem
3.	Ms Lovett engaged in professional misconduct within paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; and/or unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that on 19 December 2018 at Ringwood Magistrates Court, Ms Lovett was found guilty without conviction, and gave an undertaking of good behaviour for, the theft of one tablet of Targin, contrary to section 74 of the DP&C Act.
Particulars
(a)	The Applicant refers to and repeats the particulars at paragraph 2(a) and (e).
(b)	On 23 November 2017, Ms Lovett was charged with, inter alia, the theft of medication being one Targin.
(c)	On 19 December 2018, at Ringwood Magistrates Court Ms Lovett was found guilty without conviction and gave an undertaking of good behaviour for the theft of one tablet of Targin contrary to section 74 of the DP&C Act.
(d)	By engaging in the conduct above, Ms Lovett has on each occasion failed to adhere to the following sections of the Code to which nurses must comply. In particular breaching the requirements that nurses must:
A.	Conduct Statement 1: Nurses practise in a safe and competent manner:
1)	Nurses practise in a safe and competent manner that is not compromised by personal health limitations, including the use of alcohol of other substances that may alter a nurse’s capacity to practise safely at all times. Nurses whose health threatens their capacity to practise safely and competently have a responsibility to seek assistance to redress their health needs. This may include making a confidential report to an appropriate authority.
B.	Conduct Statement 2: Nurses practise in accordance with the standards of the profession and broader health system
1)	Nurses’ primary responsibility is to provide safe and competent nursing care. Any circumstance that may compromise professional standards, or any observation of questionable, unethical or unlawful practice should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and competent care, nurses must intervene to safeguard the individual and after exhausting internal processes, may notify an appropriate authority external to their employer organisation.
C.	Conduct Statement 3: Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing.
1)	Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.
D.	Conduct Statement 7: Nurses support the health, wellbeing and informed decision making of people requiring or receiving care.
E.	Conduct Statement 9: Nurses maintain and build on the community’s trust and confidence in the nursing profession.
1)	The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
2)	The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.
F.	Conduct Statement 10: Nurses practise reflectively and ethically.
1)	Nurses evaluate their conduct and competency according to the standards of the nursing profession.
2)	Nurses advise employers and any persons in their care of any reduction in their capacity to practise due to health, social or other factors while they seek ways of redressing the problem.
4.	Ms Lovett engaged in professional misconduct within paragraph (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; and/or unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that Ms Lovett failed to meet her obligations under section 130 of the National Law to notify the Board of a relevant event within 7 days, namely that, she was charged with offences punishable by 12 months imprisonment or more.
Particulars
(a)	On 26 May 2016, Ms Lovett was charged with the following offences, punishable by 12 months imprisonment or more:
A.	dishonest receipt of a blank prescription by or on behalf of another, believing the prescription to be stolen, contrary to section 88(1) of the Crimes Act;
B.	uttering a false script, being a prescription for oxycontin 30 mg in another’s name to induce Nova Pharmacy to accept that prescription for a drug of dependence, contrary to section 77 of the DP&C Act; and
C.	two charges of making a false document with the intention that she use that document to induce Nova Pharmacy to accept that document as being genuine, and relying on that document acted to their prejudice, contrary to section 83A(1) of the Crimes Act.
(b)	On 23 November 2017, Ms Lovett was charged with, inter alia, the following offences, punishable by 12 months imprisonment or more:
A.	one count of theft of 12 Tramadol being property belonging to Cumberland View Aged Care Living under s 74(1) of the Crimes Act; and
B.	one count of theft of 1 Targin being property belonging to Cumberland View Aged Care Living under s 74(1) of the Crimes Act.
(c)	Ms Lovett did not notify the Board of being charged with the offences referenced in paragraphs 4(a) and 4(b).
(d)	By engaging in the conduct above, Ms Lovett has also, on each occasion, failed to adhere to the following sections of the Code to which nurses must comply. In particular breaching the requirements that nurses must:
A.	Conduct Statement 2: Nurses practise in accordance with the standards of the profession and broader health system.
1)	Nurses’ primary responsibility is to provide safe and competent nursing care. Any circumstance that may compromise professional standards, or any observation of questionable, unethical or unlawful practice should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and competent care, nurses must intervene to safeguard the individual and after exhausting internal processes, may notify an appropriate authority external to their employer organisation.
B.	Conduct Statement 3: Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing.
1)	Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.
C.	Conduct Statement 9: Nurses maintain and build on the community’s trust and confidence in the nursing profession.
1)	The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
2)	The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.
D.	Conduct Statement 10: Nurses practise reflectively and ethically.
1)	Nurses evaluate their conduct and competency according to the standards of the nursing profession.
2)	Nurses advise employers and any persons in their care of any reduction in their capacity to practise due to health, social or other factors while they seek ways of redressing the problem.
5.	Ms Lovett engaged in professional misconduct within paragraph (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; and/or unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that Ms Lovett failed to meet her obligations under section 130 of the National Law to notify the Board of a relevant event within 7 days, namely that she had been found guilty and/or convicted of an offence punishable by imprisonment.
Particulars
(a)	The Board refers to and repeats the particulars at paragraphs 1(i)-1(ii) and 3 namely, that Ms Lovett was found guilty and/or convicted of the offences referenced in those paragraphs.
(b)	Ms Lovett did not notify the Board that she had been found guilty and/or convicted of the offences referenced in paragraph 5(a).
(c)	In relation to the failure to notify the Board of the finding of guilt and convictions referenced at the particulars at paragraphs 1(i)-1(ii). Ms Lovett has also, on each occasion, failed to adhere to the following sections of the Code to which nurses must comply. In particular breaching the requirements that nurses must:
A.	Conduct Statement 2: Nurses practise in accordance with the standards of the profession and broader health system.
1)	Nurses’ primary responsibility is to provide safe and competent nursing care. Any circumstance that may compromise professional standards, or any observation of questionable, unethical or unlawful practice should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and competent care, nurses must intervene to safeguard the individual and after exhausting internal processes, may notify an appropriate authority external to their employer organisation.
B.	Conduct Statement 3: Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing.
1)	Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.
C.	Conduct Statement 9: Nurses maintain and build on the community’s trust and confidence in the nursing profession.
1)	The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
2)	The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.
D.	Conduct Statement 10: Nurses practise reflectively and ethically.
1)	Nurses evaluate their conduct and competency according to the standards of the nursing profession.
2)	Nurses advise employers and any persons in their care of any reduction in their capacity to practise due to health, social or other factors while they seek ways of redressing the problem
(d)	In relation to the failure to notify the Board of the finding of guilt referenced at paragraph 3, Ms Lovett has failed to adhere to the following section of the Code of Conduct for Nurses effective 1 March 2018:
A.	Principal 1: Legal Compliance
1.1 It is important that nurses are aware of their obligations under the National Law, including reporting requirements and meeting registration standards. Nurses must (a) abide by any reporting obligations under the National Law and other relevant legislation. Please refer to sections … 130 of the National Law …
6.	Ms Lovett engaged in professional misconduct within paragraph (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; and/or unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, in that Ms Lovett failed to meet her obligations under section 109(1)(b) of the National Law when she declared no change to her criminal history in the preceding period of registration on her 2016-2017 renewal of registration.
Particulars
(a)	On 28 June 2016, Ms Lovett made an online application for renewal of nursing registration. The declaration asks “Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?” Ms Lovett answered “No”.
(b)	The National Law defines criminal history of a person as:
A.	every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law;
B.	every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence;
C.	every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.
(c)	Ms Lovett answered “Yes” to the declarations relating to the meeting the Board’s requirements for continuing professional development and recency of practice.
(d)	By reason of the matters set out at paragraphs 1(b) and 4(a), this declaration was dishonest.
(e)	By engaging in the conduct above, Ms Lovett has also, on each occasion, failed to adhere to the following sections of the Code to which nurses must comply. In particular breaching the requirements that nurses must:
A.	Conduct Statement 2: Nurses practise in accordance with the standards of the profession and broader health system.
1)	Nurses’ primary responsibility is to provide safe and competent nursing care. Any circumstance that may compromise professional standards, or any observation of questionable, unethical or unlawful practice should be made known to an appropriate person or authority. If the concern is not resolved and continues to compromise safe and competent care, nurses must intervene to safeguard the individual and after exhausting internal processes, may notify an appropriate authority external to their employer organisation.
B.	Conduct Statement 3: Nurses practise and conduct themselves in accordance with laws relevant to the profession and practice of nursing.
1)	Nurses are familiar with relevant laws and ensure they do not engage in clinical or other practices prohibited by such laws or delegate to others activities prohibited by those laws.
C.	Conduct Statement 9: Nurses maintain and build on the community’s trust and confidence in the nursing profession.
1)	The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
2)	The unlawful and unethical actions of nurses in their personal lives risk adversely affecting both their own and the profession’s good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise the inherent trust between the nursing profession and the public necessary for effective therapeutic relationships and the effective delivery of nursing care.
D.	Conduct Statement 10: Nurses practise reflectively and ethically.
1)	Nurses evaluate their conduct and competency according to the standards of the nursing profession.
2)	Nurses advise employers and any persons in their care of any reduction in their capacity to practise due to health, social or other factors while they seek ways of redressing the problem