VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No Z515/2021	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law Act 2009, sections 5 and 196(1), 196(2) and 196(4) – registered nurse while addicted to opioids stole palliative care patients’ medications while providing or purporting to provide nursing care in their homes – criminal charges and convictions for theft and attempted theft – criminal charges and convictions for burglary of four patient’s homes in order to steal medications – criminal charges and convictions for unauthorised access with intent to commit a serious offence following unauthorised access to patient records – guilty pleas for all offences – convictions on 29 charges – professional misconduct – agreed position as to reprimand, cancellation and disqualification – period of disqualification – whether to impose a prohibition order.	

APPLICANT	Nursing and Midwifery Board of Australia	
RESPONDENT	Sonja Spehar	
WHERE HELD	Melbourne	
BEFORE	A Dea, Senior Member
M Archibald, PSM, Member 
M Bylhouwer, Member	
HEARING TYPE	Hearing by videoconference	
DATE OF HEARING	19 May 2022	
DATE OF ORDER and reasons 	10 June 2022	
CITATION	Nursing and Midwifery Board of Australia v Spehar (Review and Regulation) [2022] VCAT 634	

Orders
1	Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the respondent is reprimanded. 
2	Under section 196(2)(e) of the National Law, the respondent’s registration is cancelled. 
3	Under section 196(4)(a) of the National Law, the respondent is disqualified from applying for registration as a health practitioner for a period of 5 years from the date of this order. 
4	Under section 196(4)(b) of the National Law, the respondent is prohibited from providing any health service (as defined in the National Law) for a period of 5 years from the date of this order.

A Dea
Senior Member and Presiding Member	M Archibald, PSM 
Health Practitioner Member	M Bylhouwer
Health Practitioner Member	

APPEARANCES:		
For Applicant	Ms C Dwyer, counsel 	
For Respondent	Mr D O’Callaghan, solicitor 	

Reasons
1	This is a proceeding brought by the Nursing and Midwifery Board of Australia (Board) against the respondent, Sonja Spehar, under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law).  
2	The Board alleged that, due to criminal convictions imposed in October 2019, the respondent had engaged in professional misconduct.  The purpose of the proceeding is not for the Tribunal to reconsider the criminal convictions: rather our task is to consider the proven conduct in the light of the respondent’s professional responsibilities as a registered nurse. 
3	The criminal convictions were in respect of: theft and attempted theft of medications from patients’ homes while providing or purporting to provide nursing care in patients’ homes; four charges of burglary of patients’ homes; and unauthorised access with intent to commit a serious offence (following unauthorised access to patient records).  The respondent pleaded guilty to 29 charges and was convicted.  
4	Between 4 August 2018 and 25 March 2019, the respondent worked as a registered nurse, providing care to palliative patients in their homes.  She was not a palliative care nurse but rather provided care in her capacity as a district or ambulatory care nurse, supporting the palliative care nurses allocated to the patients. 
5	During that time, the respondent made use of knowledge she gained by providing direct care to patients and information she gained through accessing her employer’s data base to identify patients who were in receipt of palliative care and who had been prescribed opioid medications, such as Fentanyl and OxyNorm.  The respondent attended the homes of those patients and, on many occasions, purporting to be engaged in providing professional nursing services, ‘checked’ their medications.  She then stole medications from the patients on the day or later when she returned to again visit and ‘check’ their medication.  On four occasions, the respondent burgled the patient’s homes when they were out and stole medications (and nothing else).
6	Pausing there, it is immediately apparent that the patients’ medical care and lives more generally were interrupted at a time when they were facing the end of their lives.  
7	For at least one patient, the respondent’s theft meant he had to be taken to an emergency department to obtain replacement medication because the respondent had broken into his home and stolen them.  To make matters worse, she did so on Christmas Day when the patient was out celebrating an evening meal with his family.  
8	It was evident that other patients and their family members were uneasy when the respondent was in their homes and they suffered distress when they found out what she had done.  Those patients had the misfortune to come to the respondent’s attention at an extremely testing time. 
9	The respondent engaged in the criminal behaviour because she was experiencing chronic pain and, by self-medicating, had become addicted to opioids.  She had been prescribed those for more than 20 years following her suffering a back injury when she first started nursing.  In late 2018 and early 2019 she was facing other stressors and challenges and, because she could not obtain sufficient opioids from a medical practitioner, she resorted to theft.  We were satisfied that the respondent’s addiction was out of control and that was the cause of her behaviour.  She had never before acted outside the nursing profession’s standards (or outside the criminal law) in her nearly 30 years of nursing.  
10	The respondent was charged with 31 criminal offences and, in April 2019, her registration as a nurse was suspended.  It remained suspended as at the hearing date.
11	On 10 October 2019, after two criminal charges were withdrawn and the respondent pleaded guilty to all other charges, she was convicted of 29 offences.  The presiding Magistrate said that, had it not been for the respondent’s significant mental health issues and the chronic pain which led to her addiction, she would have been sent to jail.
12	By her actions when affected by chronic pain, addiction, anxiety and major depression, the respondent destroyed her career and, as we understood it, damaged her personal relationships. 
13	The material before us included 2019 psychological assessments which assisted to explain how the offending had come about.  We also had reports as to expressions of remorse and shame the respondent communicated to those psychologists and a case manager involved in the criminal processes.
14	As she was entitled to, the respondent elected not to attend the hearing before us (although she was legally represented).  As a result, we did not hear directly from her about the offending or her progress to date.  We had no recent statement or evidence in her own words about her remorse, reflections on her conduct or plans for the future.  
15	The most recent information we had as to her rehabilitation was in the form of a short report from her treating general practitioner dated January 2021.  He confirmed that, at that time, her addiction was being controlled and that her chronic pain was being managed. 
16	The respondent’s solicitor informed us of the respondent’s instructions which included that she was disgusted with herself for what she had done to vulnerable people.  She was also disgusted with herself for the effects of her actions on her workplace and colleagues.  She was said to have accepted the gravity of what she had done.  She remained distressed.
17	The respondent told her solicitor she had been proud to be a nurse and that it had been part of her identity.  She loved the job but accepted that it would be extremely unlikely that she could return to the profession due to her back injury and, more significantly, her criminal record.  She accepted her criminal record meant she may well not be employed in the future at all.  We were told that the respondent has not worked since 2019 and now only takes prescribed medication under the supervision of her general practitioner.  
18	We understood the respondent’s decision not to attend the hearing was driven by shame and not by any disinterest or disrespect for this process.  However, it had a material impact on our assessment of future risk. 
19	In making our decision, we have:
•	Analysed the nature of the respondent’s conduct through an objective lens focussing on the extent of her departure from the professional and community expectations of a registered nurse by engaging in the criminal conduct.  We have done so, taking into account the harm visited upon vulnerable patients and their families at what we anticipate was one of the most difficult times of their lives; and 
•	Made determinations about the respondent with the protection of the public and professional standards uppermost in our minds, coupled with the need for deterrence.  That has required us to make a subjective assessment of what information we had before us about the respondent’s insight into her conduct, her remorse and the degree to which she has rehabilitated herself.
20	We had no difficulty at all concluding that the respondent’s convictions constituted professional misconduct, especially when considered within the factual context.  For a registered nurse to have been convicted of theft of patients’ medication and burglary of their homes is shocking.  Every element of the respondent’s offending was a grave departure from standards and, more than that, represented a cruel and sophisticated course of conduct.  We also concluded that, at the time she engaged in the conduct, the respondent was not a fit and proper person to be a registered nurse. 
21	It was more challenging to assess what determinations were to be made because of the absence of current information.  We gave weight to the findings made by the Magistrate in 2019 and the documented expressions of remorse and insight.  We noted the Board’s submissions, which acknowledged the respondent’s efforts to rehabilitate.  
22	We determined that, balancing the purposes of determinations and having regard to the respondent’s specific conduct and circumstances, it was appropriate to impose a reprimand, cancel the respondent’s registration and disqualify her from applying to be re-registered for five years from the date of our orders.  
23	We decided to also impose a five year prohibition order from providing health services as sought by the Board.  We accepted that, due to the respondent’s significant criminal record, it will be difficult for the respondent to obtain work in the health field or elsewhere.  We also accepted that there are other regulatory schemes which ensure workers in aged care, disability care and in settings where there are children are suitable including after consideration has been given to their criminal history.  
24	However, due to the absence of up-to-date information about her current mental health, including management of her addiction, we could not make a concrete finding that the respondent posed a small risk of similar offending in related health fields in the next five years.  Taken with the demands of general deterrence, we concluded it was appropriate to make a prohibition order. 
25	We wish to record some other related concerns this case raised.  
26	As will become apparent, the respondent had been accessing patient data for a period of around seven months when not authorised to do so without her employer being alerted.  While the employer had concerns about the respondent‘s professional performance in late 2018 and raised them with her, that conduct and the subsequent criminal offences continued.  
27	It was only because a family member alerted the respondent’s employer to concerns regarding the respondent’s behaviour in the patient’s home that an audit and investigation commenced.  One could only speculate about how long the conduct could have continued had that family not been so vigilant in reporting their concerns.
28	While we understood that, in order to access the records, the respondent was required to re-set her password regularly, we also understood her long standing access arrangements allowed her to use her personal computer to gather the information she needed to commit the offences.  That form of access meant she could do so outside the work premises with no opportunity to be seen by supervisors or others.  We anticipate the employer has taken steps by now to protect patient data and otherwise review practices.  
29	Although we appreciate that an employee intent on wrong doing can often find the means to do so, the circumstances of this case ought to serve as a warning to health providers as to their management of data and supervision of employees including those who have unsupervised access to vulnerable patients’ homes. 
The respondent’s representation at the hearing
30	As noted above, the respondent was represented at the hearing on 19 May 2022, by her solicitor, Mr O’Callaghan, and elected not to attend.  The respondent had already agreed with the Board about factual matters and had also agreed that her conduct constituted professional misconduct.  Mr O’Callaghan conveyed what the respondent had told him and made submissions on the question of appropriate determinations.  
The factual context 
31	The parties filed an agreed statement of facts as to the factual background and circumstances directly relevant to the Amended Allegation.  The following is drawn from that document, parts of the Board’s submissions (with which the respondent took no issue) and other records contained in the parties’ joint Tribunal Book, including the Victoria Police briefs.
32	It is not necessary for us to identify the patients or their family members and friends by name and rather use letters of the alphabet to identify them.
The respondent’s professional and employment background
33	The respondent obtained general registration as a registered nurse on 2 August 1989.  We were informed that she had worked as a nurse for nearly 30 years without incident.  We were told by Mr O’Callaghan, and accepted, that the respondent was proud to be a nurse and had loved the work. 
34	Early in her career, the respondent suffered a back injury after lifting a patient.  The material before us indicated she had suffered a disc prolapse at L4/L5.  She was thereafter prescribed a range of pain medications to manage the resulting pain for more than 20 years.  The medications included synthetic opiates, such as Fentanyl. 
35	In 2018 and early 2019, the respondent was employed as a registered nurse at La Trobe Community Health Service (LCHS).  The respondent was employed as a part time district nurse and provided ambulatory care.  While LCHS provide palliative care services, those are provided by palliative care nurses with district nurses like the respondent providing secondary and related care.  
36	On 17 August 2018, the respondent was involved in a car accident while driving a work vehicle.  The respondent lost her licence and so was unable to drive to patients’ homes.  We understood the accident led to a worsening of the respondent’s back pain and that in turn led to her then medication not being sufficient to manage that pain.  The respondent returned to work in late October 2018 and LCHS made arrangements for her to be buddied up with another nurse given she could not drive and she was not ‘allowed’ to work on her own. 
37	In late 2018, LCHS had identified concerns about the respondent’s work performance and wrote to her about them.  The concerns included her presenting as erratic, unable to sit still and talking over clients and others.  Other concerns related to: 
•	Colleagues observing speech and cognition issues;
•	The respondent requesting a staff member to take her 50 minutes out of the way to collect medication from home; and 
•	Failures to complete appropriate documentation.
The conduct underpinning the convictions 
38	Between 4 August 2018 and 25 March 2019, the respondent used the LCHS computer system to access the details of 11 different LCHS palliative care patients.  While for some patients she was authorised to access the records, there were more than 100 occasions when she had no professional need to do so and, in a number of cases, she had no involvement in the care of the particular patients.   
39	As stated above, the respondent accessed the records with the intent of using the details to facilitate theft of prescription medications from those patients and, in some instances, burglary of their homes. 
40	The respondent attended the homes of patients who were receiving palliative care and did so purporting to be acting on behalf of LCHS, when she was not.  
41	In respect of eight different patients, she stole some or all of their pain relief medications such as morphine, Oxycodone, and Fentanyl.  
42	On four occasions, in respect of three patients, she broke into their homes in order to steal their medications and damaged property in the course of doing so. 
43	On 8 February 2019, a former LCHS patient’s family raised concerns about the conduct of a nurse.  It was that contact which led to LCHS looking into the respondent’s conduct.  The circumstances of the respondent’s interactions with the family of that patient (who we refer to as Patient A) warrant recounting.
44	Patient A had passed away in early February 2019 and, after the funeral, there was a wake at the family home.  The respondent arrived at the home while the wake was underway and, while walking up the driveway, asked a family member what was happening.  She was described as having a shirt with a logo on it (presumably that of LCHS) but no identification or name tag.  The family member said it was a wake.  The respondent identified herself as being from LCHS and that she was there to see the deceased patient about her medications.  The family member told the respondent the patient had passed away.  The respondent said words to the effect that LCHS had not been notified and then left.  
45	The next day, the respondent again went to Patient A’s home.  Patient A’s husband answered the door and the respondent identified herself as being from LCHS.  She said that she had been phoning Patient A for the last few days and could not get hold of her.  She was told by Patient A’s husband that his wife had passed away and that he had turned her phone off.  The respondent said she was sorry and asked how the husband was going.  She offered to arrange counselling but he declined.  She asked if Patient A had any medications left.  He said yes and she offered to take them to ‘get rid of them for you’.  The respondent entered the house and looked though the bag containing Patient A’s medicines.  She asked if there was any more and specifically enquired about Fentanyl patches.  He located some of those and gave them to the respondent.  After again asking if that was all there was, the respondent left saying she would take them to the chemist.  
46	After the respondent walked out, Patient A’s husband thought her questions were unusual, especially her enquiries about Fentanyl patches.  He noted the car she was driving.  It was only later in February 2019 that the conversation the respondent had with the other family member on the day of the wake came to light.  
47	Patient A’s husband did not recall having met the respondent before.  That was, of course, because the respondent had never been involved with Patient A’s care and found her details through unauthorised access to LCHS’ data. 
48	In the meantime, Patient A’s daughter had contacted LCHS to raise concerns about the then unidentified nurse’s conduct.  A manager at LCHS confirmed in a statement that it was not usual practice to collect unused medications from deceased patients.
49	LCHS undertook an audit of access to patient files.  It found that the respondent had been accessing multiple patients’ records.  She had accessed some patient’s records multiple times a day and over lengthy periods.  She did so after hours, on days she was not working, on study days and days she was on sick leave.  The manager mentioned above made a statement explaining that nurses involved in providing care to specific patients are authorised to access their records and that can include access via their own personal computer.  The respondent had such access which required entry of a user name and password which had to be updated every four weeks.  The manager confirmed that, in the case of several patients whose records were accessed, the respondent was not providing care and/or had not been allocated to care for them and so the access to their records was unauthorised.  
50	On 14 February 2019, the respondent was asked to attend a meeting and was stood down whilst the LCHS investigation continued.  
51	The respondent continued to access patients’ records and make unscheduled visits to patient’s homes after being stood down.  The visits included occasions when the respondent stole medication from palliative care patients.  
52	We next describe events relating to other patients to provide further context for the criminal charges and subsequent convictions.
53	One of the patients the respondent visited after being stood down, was Patient B.  She had been allocated to provide Patient B with care.  
54	While one visit was scheduled over the relevant time frame, the respondent made six unscheduled visits to Patient B’s home.  In the period end October 2018 to end February 2019, the respondent accessed Patient B’s records 56 times.  Only two of those were for authorised purposes.  Patient B explained in her statement that she received visits from a palliative care nurse on Wednesdays and a district nurse attended on Mondays and Fridays. 
55	On one unscheduled visit on a Sunday, the respondent knocked on the door, called out ‘hello’ and let herself in.  She was wearing shorts and a t-shirt and said she was passing on her way home from being away and thought she would check in on Patient B.  At the time, Patient B was organising her medication on the kitchen bench and had the sense the respondent was ‘hovering’.  The respondent offered to help with it but Patient B said she had a system and did not need help.  Patient B felt uncomfortable on that occasion.  Patient B had already told a LCHS nurse she was uncomfortable with the respondent and did not want her around when she was organising her medication.  
56	Patient B noticed the respondent had attended one day carrying a large handbag from which she produced and handed over a medication conversion chart which Patient B did not need or know why it was being given to her.  Patient B noted that the respondent seemed very keen to go into the room where her medication was kept and often offered to get what was needed.  Patient B thought she was just being helpful.
57	On 15 February 2019, the day after being stood down, the respondent arrived at Patient B’s home.  Patient B was not at home but her husband was.  He heard a female voice and walked towards the kitchen where he saw the respondent.  He said she did not look well – he described her as ‘sweaty’.  She asked if Patient B was home and he said no.  The respondent asked if she could sit down and he said ‘of course’.  Instead of sitting at the kitchen table she walked into another room where his wife’s medication was kept.  He followed the respondent and then offered her a drink of water as she looked so unwell.  She said that would be good.  When Patient B’s husband returned with the water, the respondent took two quick sips and said words to the effect that she had taken up enough of his time and that she would ‘get out of his hair’.  She put the glass down and left in a hurry.  Patient B’s husband stated that he just stood in a bit of a state of shock wondering what had happened.  
58	A few days later Patient B and her husband received a call from LCHS about the respondent’s behaviour.  They checked Patient B’s medication and realised that a box of 20 OxyNorm tablets was missing, as was one box of Endone.  
59	Patient C was another patient the respondent was never allocated to provide care to but she accessed his records 25 times between mid-December 2019 and 13 February 2019.  On 18 February 2019, the respondent made an unscheduled visit to Patient C’s home.  She said she was there to talk about chemotherapy.  Patient C said he had an appointment later that day and would rather keep it.  The respondent did not enter the house.   
60	Patient C left the house and returned at 2pm to find his back door had been damaged and someone had forced entry to the house.  The next day he had a visit from his primary carer who realised five Fentanyl patches were missing.  Nothing else of value was taken in the burglary.
61	Patient C was later admitted to hospital.  While he was there, the respondent again went to his house.  She smashed the kitchen window and gained entry to the house.  A box of Fentanyl was taken.
62	On 24 February 2019, the respondent visited the home of Patient D at about 6:30pm.  She was not allocated to provide him with care.  When Patient D answered the door, the respondent apologised for the time of night, said she was from palliative care and had been visiting someone else in the same complex, was aware of his situation and had popped in to see how he was.  She was wearing a t-shirt and shorts, was not wearing any identification and showed him none.  She was described as speaking very loudly.  Patient D led her into a room where his wife was sitting.  He said he was doing alright, was on a routine schedule of tablets and had recently started on some anxiety medication.  He showed the respondent the bottle of anxiety tablets.  He said she appeared to take a look around the house and, as she left the house, she said she would pop back at another time.  
63	Two days later she did just that, arriving in the afternoon.  She said she had come back because she had forgotten to write down the detail of his medications.  She was invited in and was again wearing a t-shirt and shorts and had no apparent identification.  The respondent asked to see the medications so she could write down their ‘strengths’.  Patient D showed her where the medications were stored.  Patient D did not recall if the respondent wrote anything down but she left the house soon after. 
64	On 1 March 2019, Patient D received a call from his palliative care nurse about making an appointment.  He mentioned that he was not happy with some of the unscheduled visits he had received and the questions an unidentified nurse was asking.  The palliative nurse said she was not happy and would make enquiries.  
65	Patient D later received a call saying he should go to the police to report what had happened and that, if the woman came again, he should call the police.  Patient D and his wife went to the local police station and made a report that day.  
66	At about 7:40pm the same evening, the respondent arrived at their home.  She apologised for ‘popping in’ at that time of day and asked if she had dropped a piece of paper with his medication details on it.  Patient D said no and asked what she was doing there, who she was, and asked her to produce her identification.  The respondent said she had left it in the car and Patient D replied that he wanted to see it.  When Patient D asked for her name, the respondent gave a false name.  She left and Patient D followed her a little way and then called the local police station while his wife called 000.  
67	Earlier on the same day, 1 March 2019, the respondent had a performance meeting with LCHS.  Her conduct in accessing client information and attending their homes continued after that time. 
68	In the weeks prior to 27 February 2019, the respondent made three unscheduled visits to the home of Patient E.  The respondent had not been allocated to provide Patient E with care but had, nevertheless, accessed her medical records 91 times.  
69	The respondent told Patient E she was from LCHS and was displaying identification of some sort.  She was carrying a white calico bag but was not in uniform.  When Patient E opened the door, the respondent just entered – Patient E described her as nearly running into the house.  When Patient E said her usual nurse had only been there the day before, the respondent said words to the effect that was ok and she was ‘just in the area’.  The respondent said she needed to see Patient E’s medications.  Patient E gave her the book which recorded them all but the respondent said she needed to see the medications themselves.  Patient E said the respondent sat at the kitchen bench with an open white calico bag by her side.  Patient E was not sure if the respondent took medication but said something was definitely strange and that the respondent appeared to be drug affected.  Once she had looked at the medication, the respondent left the home very quickly.
70	The respondent arrived again a few weeks later.  She was again carrying a white calico bag.  She again asked to see Patient E’s medications.  The respondent was briefly left alone with the medication.  Patient E was not sure if any was taken.  Patient E felt very uneasy about what had happened.
71	Soon after, Patient E and her husband went away and a friend came to house sit.  The respondent arrived at the home on 27 February 2019.  When the friend answered the door, the respondent said words to the effect that she had been expecting Patient E but (clearly) the friend was not her.  She told the friend she was there to check on Patient E’s medication.  The friend was aware Patient E had regular visits from palliative nurses and let the respondent in.  The respondent was carrying a white calico bag.  She went straight to the kitchen where the medication was.  She took out the medication and was looking through it on the kitchen bench.  She struck up a conversation with the friend and asked about the friend’s business.  She asked for a pen so she could make a note of the friend’s details.  The friend thought it looked like the respondent had something in her hand which was holding the bag and was clasped under the bench.  The friend felt uncertain about the respondent but did not say anything.  After making some notes, the respondent said she was finished.  She then walked out and down the driveway to the street to a car parked two houses away.  The friend felt something was wrong throughout the visit and thought it strange that the respondent had not parked outside the house, given it was a quiet street.
72	The friend was again house-sitting Patient E’s house on 25 March 2019.  The friend left the house at 5am to go to work and when she returned at 1:45pm she noticed the rubbish bin was in a strange place.  She went inside and found the kitchen pantry doors open when she had left them closed.  She found a flywire door open which was not open when she left.  She made the same discovery with a sliding door to an outdoor area.  She called Patient E and, while talking to her, discovered a bedroom window had been smashed.  A tomahawk was found on the property and, as it did not belong to Patient E or her husband, it was believed that the respondent has used it to break in.  One box of Fentanyl and five boxes of oxycodone were taken. 
73	Patient F passed away in March 2019.  The respondent was not assigned to care for her.  Patient F’s husband made a statement after his wife had died that described the respondent’s behaviour specifically and their other experiences with nurses coming and going.  
74	As to the former, the respondent had visited Patient F’s home about five times.  On one occasion the respondent went through Patient F’s medications in front of her.  They included Fentanyl patches which the respondent said should be kept separate.  The respondent took it upon herself to move them to another bag.  She returned that same night at about 8pm.  When the palliative care nurse came the next day, they realised the Fentanyl patches were missing.  The respondent visited again when Patient F was in hospital.  Having been told Patient F was not home, the respondent asked if she could come inside for a glass of water.  Patient F’s husband told her to wait and he would get her a bottle.  The respondent walked away quickly.  
75	Patient F’s husband’s statement included the following: 
[Patient F] and I lived alone.  Whilst she was a palliative Care patient we probably had between 6-10 different nurses or carers come to the house.  We knew most of them by name, or they would tell us their name when they visited.  This nurse never introduced herself to me or [Patient F] by name, she never had identification and she never wore any type of uniform.
The respondent’s arrest 
76	On 25 March 2019, after the burglary at Patient E’s home, the respondent was arrested.  When her home was searched, police located 3 boxes of OxyNorm and one box of Fentanyl in Patient E’s name but no other medications were found.  The respondent refused to say where she had got the medication.  She was charged with 25 offences, including four charges of burglary.  She was then bailed.  
77	Between 26 and 30 March 2019, having just been granted bail by police, the respondent attempted to steal or stole Fentanyl on three occasions from the wife of one of the respondent’s former palliative care patients, with whom she had struck up a friendship (referred to in these Reasons as ‘Patient H’).  
78	On 30 March 2019, the respondent was arrested again.  At the time, she was wearing four Fentanyl patches.  She was charged with a further six offences. 
79	We pause to record that we were shocked to think she had consumed the vast majority of the other medication she stole, noting that police located only a limited amount of medication at her home.
80	The respondent was remanded into custody at the time of her second arrest.  The following day, she completed an assessment with the Court Integrated Services Program (CISP) which provides support to persons on bail by facilitating access to resources such as drug and alcohol treatment and mental health treatment.  The respondent was granted bail by the Magistrates’ Court with conditions, including to comply with the CISP program.  She met that condition.  The respondent was also required to have treatment for addiction with Dr John O’Donoghue and psychological counselling with Mr Charles Huson.  She also complied with those requirements.
81	The respondent resigned from LCHS with effect from 12 April 2019.
82	We describe later the circumstances which led to the fourth burglary charge and the offences which post-dated the respondent’s first arrest.
Notifications to the Board and the suspension of the respondent’s registration
83	On 25 March 2019, the respondent notified the Board that the first set of criminal charges had been laid.  
84	Notifications about the respondent’s conduct were also made to the Board by Victoria Police and the respondent’s employer.  
85	The respondent’s solicitor notified the Board of the 30 March 2019 charges.
86	On 15 April 2019, an Immediate Action Committee of the Board suspended the respondent’s registration and required her to undergo a health assessment.  
87	The respondent’s registration remained suspended as at the time of the hearing.
October 2019 health assessment 
88	Having asked for (and been granted) an extension to allow time for the respondent to deal with the upcoming criminal matters, on 3 October 2019, the respondent attended the Board directed health assessment with Dr Phillip Crowley, an addiction medicine specialist. 
89	On 6 October 2019, Dr Crowley provided his written report.  The report recounted the respondent’s history including her back injury which had been treated with prescribed and over the counter analgesics including Panadeine Forte which she took up to eight per day at times.  She had been started on Fentanyl patches in late 2017.  She told Dr Crowley that in late 2018, she acted in a criminal manner to obtain additional Fentanyl and other opioids from patients.  The report noted that she had been treated with Suboxone for opioid dependence since March 2019 and that she had been seeing a psychologist on a regular basis.  She told Dr Crowley she hoped to return to nursing once the criminal matters had been resolved.  The respondent also referred to a number of other stressors which had contributed to her conduct.
90	We noted that the report did not indicate that the respondent linked her conduct to the 17 August 2018 car accident – in fact, no mention was made of that event in the report at all.
91	Dr Crowley was told by the respondent that she had been a light drinker of alcohol in the past but had been consuming up to half a bottle daily in March 2019.  She told him that, as at October 2019, she was not consuming any alcohol.
92	Dr Crowley diagnosed the respondent with a severe opioid use disorder and mild to moderate alcohol use disorder.  In making that diagnosis, Dr Crowley applied diagnostic criteria including the following in respect of the preceding 12 month period: 
•	Taking the opioid in larger amounts or for longer than you meant to;
•	Wanting to cut down or stop using the opioid but not managing to;
•	Spending a lot of time getting, using, or recovering from use of the opioid;
•	Not managing to do what you should at work, home or school, because of opioid use;
•	Continuing to use, even when you know you have a physical or psychological problem that could have been caused or made worse by the opioid; and 
•	Needing more of the opioid to get the effect you want (tolerance).
93	Dr Crowley found the respondent met all of the criteria.  He also concluded that she met the criteria for a mild to moderate alcohol use disorder for the recent 12 months, namely:
•	Taking alcohol in larger amounts or for longer than you meant to;
•	Continuing to use alcohol, even when it causes problems in relationships; and 
•	Continuing to use alcohol, even when you know you have a physical or psychological problem that could have been caused or made worse by alcohol.
94	Dr Crowley concluded that the respondent was stable at the time of his October 2019 assessment, taking into account her ongoing engagement with her treating doctor and psychologist.  He made a number of treatment related recommendations including that the respondent:
•	Remain on Suboxone under structured dosing and supervision for an extended period;
•	Continue to attend a psychologist regularly for support and to resolve issues which may have contributed to her presentation;
•	Be followed up in respect of her liver function impairment; and 
•	Be followed up by her treating doctor and psychologist over time to ensure she does not have a return to heavy regular alcohol use.
95	He also made recommendations for regulatory oversight, including participation in a supervised substance testing regime, not participating in the administration of regulated pharmaceuticals in the workplace and being supervised while working in a team rather than a solo nursing role.
96	Finally, Dr Crowley described the respondent as having been co-operative and as having made frank admissions as to her conduct between November 2018 and March 2019.  
97	It is convenient to record at this point that the Tribunal Book contained partial progress notes for the respondent from Dr O’Donoghue’s practise.  They covered the period November 2017 to 2 May 2019.  They appeared to confirm the prescribing history referred to above.  They indicated that, by around early April 2019, the respondent’s back pain had been improved including as a result of having an epidural injection.  In late April and May 2019, the respondent reported she was struggling and drinking up to a bottle of wine a day to ‘block out’ (we presume the latter refers to the respondent trying to block out the consequences of her offending and the subsequent criminal and other processes). 
Treating psychologist’s report
98	Mr Huson, psychologist, prepared a report for the purposes of the Magistrates’ Court hearing in October 2019.  He also provided subsequent ongoing treatment to the respondent, although we had no further written reports from him about that.  
99	Mr Huson assessed the respondent on 9 April 2019 and his report was dated 10 June 2019.  It contained a comprehensive history including: information about stressors relating to the respondent’s family background and childhood; her back injury and subsequent struggles to obtain appropriate treatment; the additional pain following her August 2018 car accident; and challenges in 2018 and 2019 associated with family financial pressures.  The report included the following observations:
[Referring to the time around late 2018] I am unable to precisely account for the series of events that followed, but it appears that both the pressure and the pain drove [the respondent] to complete distraction and the series of offences commenced towards the end of 2018.  In my opinion, the offences were not committed for personal financial gain and [the respondent] wears the large red letter G on her forehead.
. . . 
I would say that during the period of offending, she suffered very significantly from impaired mental functioning – an altered state.  I am actually uncertain whether this was a case of complete decompensation or even ‘temporary insanity’.  
100	The respondent was described in the report as being ‘visibly distressed’ during the assessment.  She was overwhelmed and believed that her life had been lost and that she would ‘never be able to bear the shame again’.  Mr Huson recorded that:
[her] thought contents were driven by her extreme anxiety, the ill-considered stupidity of the offences she had committed, the impact they had had on her professional reputation, her husband, family, friends, neighbours and what she saw as a loss of her previously unblemished career as a nurse.  She was also unable to comprehend that at some stage in the future, that she would achieve re-registration as a nurse and return to her profession.
101	The report also said the respondent’s ‘thought processes were riddled with guilt and self-reproach’ throughout the first three consultations and ‘she could not possibly imagine a situation in which she might be re-accepted back into her family and community’.
102	The respondent was said to have repeatedly referred to herself as a ‘criminal’ and was ‘horrified at what everyone would think’.  He reported that she was able to articulate her own errors of cognition, judgment and action.  She was reported to have said that:
if someone else were in the situation she now faces she would easily forgive them.  She is unable to forgive herself.
103	Mr Huson assessed the respondent as being within the extreme range for anxiety, having severe depression and experiencing severe pain impacts.  He later referred to the respondent as having been ‘significantly disabled’ during the latter half of 2018 and during the period of offending between August 2018 and February 2019.  He considered the respondent had become decompensated or had a very significant mental breakdown towards the end of 2018.  As at April 2019 (just after the second arrest), he diagnosed her with:
•	Generalised anxiety disorder;
•	Major depression;
•	Post-traumatic stress disorder;
•	Somatic symptom disorder (with predominant pain, persistent and severe);
•	Disinhibition and impulsivity;
•	Probable substance-induced sleep disorder; and
•	Decompensation during the period of offending.
The convictions and sentencing
104	During the Magistrates’ Court proceeding, the charges were consolidated. Originally, the respondent had been charged with three charges of committing an indictable offence whilst on bail, however, these were ‘rolled up’ into a single charge with the second and third charges being withdrawn. 
105	On 10 October 2019, the respondent was convicted of a number of criminal offences in the Magistrates’ Court of Victoria.  The convictions were for the following:
•	11 counts of unauthorised access with intent to commit a serious offence contrary to s 247B of the Crimes Act (Crimes Act). 
Relevantly, that provision says that a person who causes any unauthorised computer function knowing it is unauthorised and with the intention of committing a serious offence or facilitating the commission of a serious offence is guilty of an offence.  
An ‘unauthorised computer function’ includes unauthorised access to data held in a computer.
The penalty for such an offence is the same as that which applies for the serious offence – so in this case, the serious offences were burglary and theft.  The penalty for those offences is a maximum of 10 years imprisonment. 
•	One count of attempted theft contrary to section 321M of the Crimes Act.
That offence is subject to a maximum of five years in prison.
•	12 counts of theft contrary to section 74 of the Crimes Act.
Theft is subject to a maximum of 10 years in prison.
•	Four counts of burglary contrary to section 76 of the Crimes Act.
Relevantly, that provision says that a person is guilty of burglary if they enter a building as a trespasser with intent to steal anything in that building or involving damage to the building.
Burglary is an indictable offence and is liable to a maximum of 10 years in prison
•	One count of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (Vic).
That offence is subject to a maximum of three months in prison. 
106	The respondent pleaded guilty to all 29 offences.
107	The respondent was convicted and sentenced to a Community Correction Order (CCO) for a period of 18 months with the following conditions: 
(a)	Perform 150 hours of community work; 
(b)	Undergo assessment and treatment (including testing) for drug or alcohol abuse or dependency as directed; 
(c)	Mental health assessment and treatment as directed; and 
(d)	Up to 75 hours of undertaken for treatment and rehabilitation will be treated as hours of unpaid community work. 
108	The presiding Magistrates’ sentencing remarks included the following:
As you’ve heard the prosecutor say, these are really serious matters, and I appreciate that you understand this from the reports that I’ve written, that I’ve read but these are serious matters in terms of the breach of trust and particularly vulnerable victims.  The only reason I’m not imposing a gaol sentence today is I’ve got material before the court that indicates that (ui) [sic], which reduces your moral capabilities somewhat, is present, that clearly you were suffering from significant mental health issues in terms of chronic pain associated with that and anxiety, and that you were medicating in relation to, and had an addiction to the Fentanyl that you were stealing.  So it’s for those reasons that I’ve, and I’ve also put you on the CISP bail programme and you complied with that programme over the period of four months and have since complied with all orders of the court whilst you’ve been supervised by the court.
. . . 
Now in relation to this matter, I accept that you have genuine remorse for what’s occurred and that you are, you also are suffering, it would appear, enormous grief which is understandable because of the impact upon the victims in relation to this matter.  I did note at some stage that you were prepared to write a letter of apology to the victims, and I don’t know whether you’ve done that, but I think it might be appropriate to do that and to forward it through your solicitors to the prosecutor to determine whether that is then passed on to the victims.
So I think you’ve demonstrated capacity and motivation to make the positive changes that you need to make, and I’m quite clear that you won’t be back before a court again, it’s quite clear, although there is a medium risk of reoffending, it’s indicated through the various reports that you are motivated to ensure that there is no repeat of this and you have dealt with the addiction clearly that you had to Fentanyl, and sought appropriate treatment rather than regarding to what you’ve been doing over the last period of time.
109	We record that we are unaware whether the letter of apology mentioned was written and, if so, to which victims.
110	We had reports on the respondent’s participation in the CISP mentioned above.  They were uniformly positive, stated that she had attended all appointments and cooperated very well with all those involved.  The reports contained records of the respondent’s willingness to communicate openly about the offending, the shame and grief she had caused to her family and those impacted.  Reference was made to the expressions of remorse communicated to treating practitioners.  
111	The final CISP report prepared in August 2019 indicated that the respondent had completed a course of drug and alcohol counselling.  Although no report had been prepared, the counsellor had notified the CISP case manager that the respondent had travelled a significant distance to attend and had participated and engaged well. 
112	At the hearing, the respondent’s solicitor confirmed that his client had complied with all requirements of the CCO and that it was completed after 18 months. 
The Board’s investigation and referral to the Tribunal 
113	We mentioned earlier that the respondent’s registration was suspended on 15 April 2019 and that, at that time, the Board decided she should have a health assessment which occurred in October 2019 following the respondent seeking additional time.  
114	After Dr Crowley’s report was received, on 20 January 2020, there was a meeting between the Board’s representatives from the Australian Health Practitioner Regulation Agency (AHPRA), the respondent and her legal representative.  The minutes record that the respondent took issue with some of the language used by Dr Crowley in his report, including him saying that at the time of the offending she was ‘going mad’ – she said that, during the period, she was losing her ability to make sound decisions.  The respondent also felt Dr Crowley had not gone into enough detail as to the stressors she was experiencing at the time.  She described them as follows:
•	Having had a serious car accident where the air bags were deployed;
•	Dealing with industrial issues at work;
•	Experiencing sleep disturbances from menopause; and 
•	Having recently undergone gall bladder surgery.
115	We record we had no information about the industrial issues mentioned.  The reference to the surgery was also referred to elsewhere in the Tribunal Book.
116	The respondent indicated that, as at the time of the meeting in January 2020, she was not in a state to return to work and would not be asking for the continuing suspension of her registration to be revoked. 
117	Between April 2020 and 23 September 2020, correspondence was exchanged between the respondent’s solicitor and AHPRA, including requests from the respondent’s solicitor for an update on progress of the investigation.  On 9 October 2020, the respondent’s solicitor wrote to AHPRA about the charges and convictions one year earlier and said the respondent:
•	Recognised that her conduct was not compatible with continuing to be registered as a nurse;
•	Accepted her ‘outrageous conduct’ was out of character and followed around 20 years of blemish free practice;
•	Was deeply remorseful about her behaviour; and 
•	She wished to surrender her registration and asked for the investigation to cease in those circumstances.
118	We were informed that the Board did not accept the proposed surrender of registration and instead decided to continue with the investigation and referral to the Tribunal. 
119	On 23 February 2021, four months later, the Board formed the required reasonable belief that the respondent had behaved in a way that constituted professional misconduct and decided to refer the matter to the Tribunal.
120	That referral was made a further four months later on 24 June 2021.
121	It is convenient to record now that, at the hearing, the respondent’s solicitor, Mr O’Callaghan, expressed concern at the delay in referring the matter to the Tribunal given that the respondent had been convicted of the charges in October 2019.  In effect, he contended that, at that point in time or soon after, it ought to have been apparent that the matter would have to be referred to the Tribunal.  While he said it was accepted there was some delay in the investigation due the respondent seeking time before the health assessment (totalling six months in 2019), it had taken another 18 months for the referral to be made.  As noted by Mr O’Callaghan, that 18 months was a large part of the total period of more than three years of suspension as at the hearing date. 
122	We join with Mr O’Callaghan in expressing concern about the delay in progressing the investigation given that, by the end of 2019, AHPRA (and so the Board) was on notice of the convictions and the result of the health assessment.  We accept the COVID-19 pandemic, which commenced in earnest in March 2020, caused widespread delays across the community and particularly in Victoria.  However, this matter was comparatively straightforward given the sole allegation referred to the Tribunal relied on the convictions which were finalised in the Magistrates’ Court in October 2019, 18 months before the referral was made. 
Material about the respondent’s treatment, rehabilitation and future prospects
123	We have referred above to aspects of the respondent’s treatment and steps towards rehabilitation.  Those include the treatment the respondent received from Mr Huson, her participation in the CISP through the Magistrates’ Court and treatment with her treating doctor, Dr O’Donoghue.  
124	The most up-to-date information about the respondent’s treatment progress was contained in a letter written by Dr O’Donoghue to the Magistrates’ Court on 13 January 2021 (presumably related to the completion of the CCO).  The letter said as follows (excluding a list of medications):
I have been seeing [the respondent] regularly since the 2/4/2019 at the request of the [CISP] . . . I am currently treating her for chronic back pain, opiate dependence, depression and hypertension.  Her current medications are listed below.  [The respondent] is also receiving epidural spinal steroid injections every 3-4 months to assist with management of her back pain.  With this treatment regimen [the respondent] has been very stable.
I think that in the appropriate employment situation [the respondent] would be able to recommence work as a nurse, and she has indicated to me that she would like to do this.
The plan for future treatment is for the foreseeable future [the respondent] will continue on Sublocade as treatment for chronic pain and opiate dependence and that she will continue with epidural injections as required.
125	As summarised earlier, the respondent’s solicitor, Mr O’Callaghan, told us that his instructions were that the respondent:
•	Had not been working since 2019;
•	Continued to suffer from her back injury;
•	Was only taking prescribed medication under the supervision of her medical practitioner;
•	Did not believe she has good prospects for employment (including as  a nurse) given her criminal record and her back injury; and 
•	 Remained distressed. 
126	His written submissions included the following:
The [r]espondent is deeply ashamed about the conduct that led to these proceedings.  Even now some three years after the offending conduct [the respondent] remains, to borrow the words of her psychologist, riddled with guilt and self-reproach.
[The respondent] is horrified at her conduct.  She believes she is the diminished view that her husband and children now have of her.  She certainly believes that she has destroyed her nursing career and believes any prospect of finding paid employment in any capacity is extremely unlikely given her conduct and her criminal record.

The Allegation 
127	At the hearing, the sole Allegation was that the respondent had:
engaged in:
(a)  	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b)	 unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,
in that, on or about 10 October 2019, [she] was convicted in the Magistrate’s Court of Victoria of [the offences listed in paragraph 105 above].
128	The particulars of the Allegations are set out in full in Appendix A of these Reasons.
129	Those particulars include that:
The nature of the convictions are such that they affect or may affect Ms Spehar’s suitability to practise as a registered nurse.
130	The particulars also make reference to parts of the applicable International Council of Nurses Code of ethics for nurses and the Board's Code of conduct for nurses (Codes). 
Admissions 
131	The respondent admitted the matters set out in the particulars of the Allegation.  That meant she accepted the factual matters contained in the Allegation and particulars, which included:
•	The fact of the convictions;
•	That the nature of the convictions were such that they affected her suitability to practise as a registered nurse; and 
•	Breaches of the Codes including breaches of obligations:
o	Not to engage in unlawful behaviour;
o	Not to take the possessions or property of patients; and 
o	Not to access patient’s records other than when involved in providing those patients with care and when authorised to do so. 
132	As mentioned earlier, the respondent did not take issue with the matters contained in the Board’s written submissions.  No submissions were made as to the other factual circumstances and records contained in the Tribunal Book. 
Findings of fact
The Allegation
133	We make our findings on the balance of probabilities, comfortably satisfied they are open on the evidence taking into account the seriousness of the allegation and the consequences of findings such as these. 
134	At the hearing we announced that we were satisfied that the factual matters in the Allegation had been proven.  
The offending 
135	We were also satisfied that the contextual matters and the descriptions of the offences set out above and below were accurate.  That was because the respondent had pleaded guilty to all offences and the summary of the offences described in these Reasons, which has been drawn from the Victoria Police brief and the statements made, formed the basis for the summary read and accepted at the Magistrates’ Court.
136	It is appropriate to recount some of the other instances of offending now and to also set out material contained in the victims’ and their families’ statements to police about the effect the offending had on them.  
137	We have already summarised the circumstances which led to three of the four burglary convictions.  
138	The first in time burglary was that committed on Christmas Night in 2019.  
139	The respondent had been allocated to care for Patient G and had become known to him and his family.  Patient G’s wife made a statement to police about what had occurred because Patient G had passed away.  Patient G’s wife explained that palliative nurses came to see her husband each day to assist with his medications.  She was at work most days and so did not see many of the nurses who came.  She recalled that, just before Christmas 2019, one of the female nurses asked what they were doing on Christmas Day and she did not think much of it at the time.
140	On Christmas Day 2019, Patient G and his wife went out at about 4:30pm to celebrate Christmas with family.  They returned home at about 9:15pm to find the bathroom window had been smashed.  They noticed that a kitchen cupboard, which contained Patient G’s medication, was open.  They discovered that between 20 and 40 vials of his morphine and oxycodone had been stolen.  There was some blood on the kitchen bench and, as neither Patient G nor his wife had been bleeding, they surmised it must have come from the intruder.  Patient G’s wife checked the answering machine and noted that they had received calls from an unknown landline and an unknown mobile phone number while they were out.  The statement then said:
Because [Patient G’s] medication was gone, I had to take him to the Emergency Department of Latrobe Regional Hospital the next morning 26/12/19 to get some medication to last him until we could get back to the doctor’s a few days later.  This was not how I wanted to spend the night or Christmas.
141	The respondent’s offending after she was arrested on 26 March 2019 was against Mrs H.  Mrs H’s husband had been receiving care from LCHS as a palliative patient until he passed away in August 2018.  He had been receiving twice daily visits.  The respondent had been allocated to provide him with care before his death.
142	At the relevant time, Mrs H was 79 years old and lived alone.  She had been prescribed Fentanyl patches for her arthritis.  They came in boxes of five and Mrs H kept them in her bathroom.
143	After Mrs H’s husband passed away, the respondent continued to visit.  Mrs H’s written statement explained that, after her husband passed away, the respondent continued to visit to check how she was.  She stated that, over the months, they struck up what she thought was a genuine friendship. 
144	One day when the respondent was visiting, she noticed Mrs H was wearing a Fentanyl patch and asked about it.  Mrs H explained she was prescribed the patches for her arthritis.
145	Mrs H said that, over the preceding three months (that is before March 2019 when she wrote her statement), she had started to notice that Fentanyl patches were going missing.  She initially thought she might have been misplacing them but could not explain or account for where they were going.  Initially she only noticed one missing at a time and then a whole box disappeared. 
146	Mrs H stated that, when the respondent would visit, she would ask if she could use Mrs H’s bathroom.  In February 2019, she told Mrs H that she was considering leaving work because of her constant need to use the bathroom, suggesting it was due to a medical condition.
147	In the morning of 26 March 2019, (the day after her arrest) the respondent visited.  Mrs H did not have any Fentanyl patches that day as she was waiting for her script to be filled.  In the usual way, they had a chat over coffee and Mrs H thought she may have mentioned that she did not have any of the patches, although she was not suspicious then.
148	The respondent visited again two days later at about 4:30pm and was there for around half an hour.  By then, Mrs H had filled her prescription for Fentanyl patches.  Her bag with two boxes of the patches and other medication was on her ironing board.  The respondent saw the bag and the patches.  She started saying to Mrs H that she should ask for the generic brand.  After the respondent had left, Mrs H went to put her medication away and noticed that one box of Fentanyl patches was missing.  No one else had come to the house and Mrs H knew the box was in the bag when the respondent was there.
149	The respondent returned on 30 March 2019 at about 9:30am.  They were sitting on the back verandah and the respondent excused herself to use the toilet.  Mrs H’s son and daughter-in-law arrived.  Mrs H offered the respondent some vegetables from her garden.  The respondent said she was in Morwell because she was collecting her belongings as she had resigned due to her medical condition.  After the respondent left, Mrs H went into her bathroom and checked the Fentanyl box.  One patch had definitely been taken as the box was unopened before the respondent arrived.  Mrs H told her family members and they then contacted LCHS and the police.
The reactions of the Patient and their family members
150	We have set out above some patients’ and family members’ reactions to the respondent’s conduct.  We also noted the following from some of the patients’ police statements.
151	Patient B said:
This whole situation has left me feeling vulnerable.  I feel violated. I’m in a position in my life where I don’t know how long I have left.  I rely on palliative care to look after me.
I feel really nervous opening my door to people now.  We lock the door even when [we’re] home now.
I shouldn’t have to worry about these things when I’m in this position. 
152	Patient B’s husband said this:
I am [Patient B’s] primary carer and we feel really betrayed that someone has come into our home, breached our trust and stolen medication that my wife needs to be comfortable.
153	Patient D said of the respondent:
She’s not familiar to me and I haven’t been introduced to her previously through palliative care or the hospital for any of my care needs.  I don’t know how she has come to know my situation or condition or my current address.  This information was not provided to her by me.
The medical assessments and opinions 
154	In the absence of any challenge to the content of the reports made by Dr Crowley and Mr Huson, we accept their opinions, with one exception.  
155	Mr Huson linked the respondent’s offending, at least in part, to a car accident in August 2018.  The materials before us show that the respondent had already unlawfully accessed patient’s records before the car accident.  It seems most likely that the respondent had not made plain to Mr Huson that the conduct which led to the charges had commenced on 4 August 2018 and that she had the car accident on 17 August 2018.  
Characterisation of the respondent’s conduct
The parties’ positions
156	The Board alleged, and the respondent agreed, that her behaviour as contained in the Allegation constituted professional misconduct within the meaning of paragraphs (a) and (c) of the definition.
157	That means the respondent has accepted that she engaged in:
•	unprofessional conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (paragraph (a) definition); and  
•	conduct that was inconsistent with the practitioner being a fit and proper person to hold registration in the profession (paragraph (c) of the definition).
158	For the purposes of the Allegation, the conduct is the 10 October 2019 convictions. 
159	The Board’s written submissions discussed how conduct is to be characterised.  It noted that the degree to which the relevant conduct fell substantially below the relevant standard should be identified.  We discuss that matter below.
160	In addition, it described how to assess whether conduct is inconsistent with being a fit and proper person to practise the profession under paragraph (c) of the definition of professional misconduct.  As to the latter, it correctly stated that the focus is to be on examining whether the conduct engaged in by the practitioner, viewed objectively, is inconsistent with being a fit and proper person to hold registration.  Assessing whether conduct meets paragraph (c) of the definition of professional misconduct does not require an assessment of whether a practitioner was, as at the time of the hearing, a fit and proper person to hold registration in the profession.
Findings on characterisation 
161	We had absolutely no difficulty agreeing that conduct constituted professional misconduct under both paragraphs of the definition.
The relevance of the respondent’s addiction and mental health conditions
162	It is appropriate to make plain how we assessed the respondent’s underlying conduct which was engaged in while she was suffering from an addiction and serious mental health conditions.  
163	Mr Huson’s report suggested that the respondent’s mental state was such that her mental functioning was significantly impaired and he suggested that might be relevant to her criminal liability.  The Magistrates’ decision shows that the respondent’s chronic pain, addiction and mental health status at the time of the offending was relevant to the decision not to sentence her to a term of imprisonment.  Those factors did not though lead to a conclusion that her criminal liability was reduced.  
164	From the outset we emphasise that we have not found the fact of the respondent’s addiction or mental health conditions constituted the professional misconduct.  Like the Magistrate, we have accepted that, at the relevant time, the respondent was addicted to opioids which she relied on to relieve her chronic pain.  We accept that at the time of the offences, the respondent was driven by her need to obtain more medication.  The sheer quantity of medication she stole over a comparatively short period of time points to an out of control and significant addiction.  
165	Having said that, we were satisfied that, over the relevant period, the respondent was capable of planning and executing a sophisticated strategy over several months which allowed her to use her unauthorised access to patient records to identify targets and then gain entry to their homes to steal or to commit burglary later.  It appeared to us that she deliberately and knowingly used her communication skills and experience as a nurse, who had been trained to provide comfort and put patients at ease, to lull the patients into a false sense of security.  
166	Nurses, like all health professionals, have a responsibility to maintain their health and wellbeing so as to ensure they cannot harm or otherwise adversely affect their patients.  It is understood that people in the grip of an addiction or a debilitating mental health condition may lack insight into their circumstances and so have difficulty realising they need help.  In this case, as explained above, we considered the respondent was capable of assessing information and making decisions to facilitate her criminal conduct and ought to have been able to see she urgently needed to seek professional support. 
Conduct of a registered nurse caring for palliative patients
167	The offences all occurred while the respondent was employed to provide care to palliative patients.  Those circumstances which were relevant to our assessment of the degree to which the respondent breached professional standards are described next. 
168	It is obvious from the circumstances that, when the respondent arrived at their homes, the patient and their family members carried an expectation that she was there for professional reasons on behalf of LCHS and could be trusted.  That trust extended to entering their homes, their kitchens and bathrooms.  It extended to asking about and handling their medication.  It included an expectation that, even though she was alone, she would act professionally at all times and did not require supervision. 
169	Irrespective of the impact of her addiction and poor mental health, the respondent abused the patients’ trust not only by stealing from them but by exploiting their expectation that she could be relied on to act in their interests.  
170	We agreed with the Board’s submission that the respondent placed the welfare of some patients at risk by removing their medication without their knowledge, meaning those patients may not have been able to access medication when required.
171	We have referred to some of the patients’ reactions to what occurred above.  Given they were receiving palliative care, they were likely to be experiencing significant discomfort and distress.  We anticipate that each and every patient and family member would have shared the feelings of unease, especially when the respondent presented in casual clothes and appearing sweaty and unwell.  We anticipate they also lost confidence that their information was private and would be protected.  Like Patient B and her husband, they may well have lost their sense of safety in their own homes. 
172	We considered it particularly disgraceful that patients who were facing the end of their lives were exploited and then they (and other family members) had to spend their sometimes precious time with police recounting what had happened and making statements.  
173	We found the events involving Patient G harrowing and can only guess at the harm caused to him and his family over what was his last Christmas celebration.  
174	We had the same reaction to the respondent’s appearance at the wake for Patient A and her breathtaking audacity in attending the home the next day and misleading Patient A’s grieving husband into letting her access the house and take away medication for her own use.
175	The breach of faith with Mrs H is apparent from our summary of the events.  Reading Mrs H’s statement recounting how she thought the respondent was a friend shows in fact she was the victim of the respondent’s cruel manipulation.
176	The respondent’s conduct had the potential and might well have had the effect that the patients and their families lost confidence in the nurses caring for them and in LCHS as a whole.  Those around them might well be expected to wonder whether they can trust other nurses and health practitioners, especially when they provide health services in their own homes. 
Professional misconduct under paragraph (a)
177	The Codes mentioned earlier contain relevant statements about the standards nurses are expected to meet.  They included statements to the effect that a registered nurse must:
•	Not engage in unlawful behaviour;
•	Not take the possessions or property of patients; and 
•	Not access patient’s records other than when involved in providing those patients with care and when authorised to do so. 
178	In addition, registered nurses are expected to demonstrate respectfulness, responsiveness, compassion, trustworthiness and integrity.  The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance its image and public confidence.
179	Criminal convictions which relate to conduct engaged in while working as, or purporting to work as a nurse breach the above expectations.  When one has regard to the particular convictions – unlawfully accessing patient data, theft from patients and burglary of patients’ homes – it is plain that the departure from standards was substantial and was contrary to the fundamental responsibility of a nurse to act in the best interests of their patient.  
180	The respondent’s criminal convictions have the potential to damage the reputation of the profession and reduce confidence in it, particularly for the patients and families who encountered the respondent. 
181	Having regard to the matters described above, we concluded the respondent’s criminal conduct represented a grave departure from expected standards of any nurse, not to mention one with nearly 30 years-experience.
Professional misconduct under paragraph (c)
182	Paragraph (c) of the definition of professional misconduct concerns conduct which is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.  The concept of ‘fit and proper’ is well known – it goes to matters of character and moral rectitude.  
183	Viewing the criminal convictions and the surrounding circumstances from an objective point of view and considering the Codes and expected standards of the profession discussed above, we had no difficulty finding that the respondent’s conduct was of a kind that was inconsistent with that of a fit and proper person holding registration in the profession.
Determinations
The Tribunal’s powers and their purpose
184	Section 196(2) and (4) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven.  They include imposing a reprimand, cancellation of registration, disqualification from re-applying for registration for a period and prohibition from providing health services for a period, suspension of registration and the imposition of conditions.
185	The Tribunal’s primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct.  Having said that, determinations may involve a degree of punishment for the purpose of general deterrence (to warn others in the profession against such misconduct) and specific deterrence (to deter the individual in question from repeating the misconduct).
186	It is well understood that: 
•	The purpose of the imposition of determinations is to protect the public;
•	Determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;
•	Personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner;
•	The likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination;
•	The degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner;
•	Insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions; and
•	Any form of official censure is of consequence.  A reprimand is a serious matter for a professional person and should not be considered a ‘slap over the wrist’.
Preliminary comments
187	As summarised above, it is apparent that commencing immediately after her second arrest in late March 2019, the respondent took significant steps to address her addiction and her other mental health conditions.  
188	The respondent attended 10 sessions of counselling with Mr Huson, commencing in April 2019.  It is not known whether those sessions continued afterwards. 
189	It appeared the respondent had also been able to obtain appropriate treatment to better manage her back injury.  It seemed to us that the delay in her obtaining effective treatment, rather than treatment which became a path to addiction, was causative of some of the respondent’s conduct.  Of course, that does not excuse the criminal conduct or the professional misconduct, but might explain how it began.
190	We give the respondent credit for complying with her National Law obligation to notify the Board of the laying of the criminal charges and the convictions in a timely fashion.  We take that to be an indication of the value she placed on her professional registration and her understanding of the role of the Board as regulator. 
191	As we have stated above, there is no current evidence before us as to the respondent’s attitudes towards her past offending and, in particular, as to her appreciation of the degree to which she caused harm to the patients and damaged the reputation of the profession.  
192	We heard the respondent’s solicitors statements as to her ongoing distress and remorse.  We understood his comments about her anticipating she will be unable to return to nursing and may face great difficulty obtaining work due to her criminal records to reflect a level of appreciation of not only the harm she has done to herself and the degree to which she strayed from the standards of her profession. 
193	We have given those matters some weight but it has been necessarily limited given we did not hear from the respondent herself by way of oral evidence before us or via a recent written statement.
194	As stated above, no up-to-date psychological assessment or report from a treating psychologist was presented to us.  Nor were any references provided for our consideration. 
195	We were aware that, as the respondent will have been out of practise for more than five years before she can re-apply for registration, she will also have to comply with the Board’s recency of practise requirements at that time.  As a result, she will be likely required to undertake a re-entry course and also demonstrate she is suitable (in the sense of being fit and proper) for re-registration. 
196	We now turn to the determinations we have made.
Reprimand
197	The parties agreed that the Tribunal should impose a reprimand on the respondent.  As stated above, a reprimand is a serious matter which indicates to the practitioner’s colleagues and the community more broadly that she has been censured for her professional misconduct. 
Cancellation
198	As stated earlier, the respondent’s registration was suspended on 15 April 2019.  By the time of the hearing, she had not practised for more than three years.
199	The parties agreed that the respondent’s registration should be cancelled having regard to the seriousness of the professional misconduct we have found proven. 
200	We agreed that was an appropriate determination for the respondent to be told by the Tribunal that her breaches of standards were egregious and entirely inconsistent with holding registration as a nurse.  We wished to communicate that message to other nurses and to the community more broadly as well.
201	In addition, given the absence of up-to-date information about the respondent’s current health, we could not conclude she was ready to recommence practice now or in the near future.  
Period of disqualification
202	The Board sought a period of disqualification so that the respondent would be unable to apply to be re-registered for five years from the date of our orders.  It relied on a number of cases which it accepted were not directly comparable to the circumstances before us, but which might have provided some assistance to identify an appropriate period. 
203	The respondent accepted that a period of five years disqualification might well be appropriate, however, she submitted the period since she was suspended ought to be included in that five years.  When making that submission, the respondent relied upon the delays in the matter coming to the tribunal for final hearing, as outlined earlier in these Reasons.  
204	The respondent contended that a period out of practise, as a result of a suspension, was a proper matter to be taken into account when specifying a period of disqualification. We agreed with that proposition, which has been applied in numerous cases for many years in this Tribunal.
205	The cases relied on by the Board as to the period is sought were as follows:
•	In Nursing and Midwifery Board of Australia v Harris(Harris), the Tribunal concluded that Ms Harris’ theft of Fentanyl from her employer was properly characterised as professional misconduct under paragraphs (a) and (c).  In concluding that a finding under (c) was appropriate, the Tribunal noted that the conduct involved repeated thefts of schedule 8 poisons over a period of months, misuse of the practitioner’s position as a nurse, deception of the hospital and breach of trust, and breach of well-known obligations under laws to do with possession, use, safe-keeping and storage of drugs of dependence, that are in place to protect patients and the wider community.  Ms Harris was reprimanded and her registration was cancelled.  No disqualification period was imposed, noting that the practitioner had been unable to practice for a period of five years;
•	In Pharmacy Board of Australia v Lee (Lee), the pharmacist practitioner had misappropriated prescription pads from the hospital where he worked, produced false prescriptions and obtained medications for his own use.  An aggravating feature was that similar conduct had occurred when he was a student, who had been the subject of criminal charges and an AHPRA investigation requiring psychological counselling.  Although the practitioner was suffering from a number of stressors at the time, and had engaged in treatment prior to the Tribunal hearing, the Tribunal concluded that the practitioner did not have insight into the difficulties of addiction.  The Tribunal found that the practitioner’s conduct constituted professional misconduct as defined in paragraph (c) of the definition.  Mr Lee’s registration was cancelled and he was disqualified for three years; 
•	In Nursing and Midwifery Board of Australia v Mahon (Mahon), a nurse of 40 years experience stole a vial of morphine and self-administered it.  Some months later, she stole 4-6 Oxycontin tablets from a patient’s Webster pack and replaced them with a similar looking tablet.  She self-administered the Oxycontin in order to alleviate knee pain and finish her shift.  She made early admissions to taking the Oxycontin when confronted and volunteered that she had earlier taken the vial of morphine.  She was criminally charged with possession of a drug of dependence and theft.  She was found guilty but no conviction was recorded.  The Tribunal characterised the theft of morphine, the theft of Oxycontin and the replacement of Oxycontin as individual instances of professional misconduct within the meaning of (a) of the definition of that phrase.  The Tribunal cancelled Ms Mahon’s registration and disqualified her for a period of six months, noting that such a term would have been insufficient were it not that the practitioner had already been out of practice for two and a half years; 
•	In Nursing and Midwifery Board of Australia v Brewer (Brewer), the practitioner had been convicted of a number of criminal offences including possession of a drug of dependence and theft of medications which were found in his home and had been prescribed to current and former patients over a period of seven years.  He was also convicted of theft of animals, stalking, damaging property, aggravated cruelty to an animal and burglary which related to his conduct towards the dogs of a neighbour.  He was also convicted of a number of offences which had occurred in the 1990s including endangerment, injury and false imprisonment offences relating to his conduct in ‘abducting’ two women when he was driving a taxi and injuring them.  The Tribunal concluded that he had engaged in professional misconduct within the meaning of paragraph (c).  The Tribunal cancelled the practitioner’s registration and disqualified him for a period of three years.  In that case, the connection to practice was limited to the theft of medications of patients and former patients.  The practitioner had been suspended for four years at the time of the disqualification; and 
•	In Nursing and Midwifery Board of Australia v Mura (Mura), the practitioner had been convicted of 26 charges committed over a period of 21 months, many occurring when the practitioner was already facing charges.  The charges included burglaries of hospitals and theft of medications.  On one occasion, he assaulted a hospital employee who confronted him.  The Tribunal concluded that the convictions constituted professional misconduct within the meaning of subparagraph (c) of the definition under the National Law.  The Tribunal cancelled the practitioner’s registration and disqualified him for a period of two years, the practitioner having already been suspended for a period of five years.  The practitioner had undergone extensive rehabilitation programs in the intervening period.
206	The circumstances in Brewer were so materially different from this case that it was of no real assistance to us.  We considered that the facts in the case of Mura were the closest to those before us.  While the practitioner did not participate in the hearing, there was evidence he had undergone extensive rehabilitation.  The facts in Harris and Mahon have some similarity to those before us.  However, we noted there were no criminal charges in Harris and the offending was less extensive and convictions were not recorded in the case of Mahon.
207	Ultimately, we agreed with the Board’s submission that a five year disqualification should be imposed in this case.  We reached that view having already taken into account the more than three years that the respondent has been out of practise.  
208	We proceeded on the basis that the remorse the respondent expressed from late March to October 2020 (after pleading and being convicted by the Magistrates’ Court and then conveying remorse to AHPRA via her solicitors) was genuine and that she continues to regret her actions.  As discussed earlier, we have given weight to the impact her addiction had on her conduct.  We were mindful that the disqualification ought not be unduly punitive or crushing given the criminal consequences the respondent has already borne and the personal effect it has had on her sense of self and her family and other relationships.  However, given the absence of current evidence as to future risk, we were also mindful of the need to ensure the public would be protected from future like conduct.  
209	We placed significant weight on the role determinations play in maintaining proper ethical and professional standards for the protection of the public and how they protect the profession’s stature and integrity in the eyes of the public. 
210	Having considered all of those matters in the light of the conduct before us, we concluded that the period out of the profession ought to be very significant and we judged that a total period of eight years was appropriate.  As a result we have imposed a disqualification period of five years from the date of our orders. 
Prohibition order 
The parties’ submissions
211	The Board sought a prohibition order such that the respondent would be unable to provide any health services for a period of five years. 
212	As we understood it, the Board contended that, although it may be accepted that the respondent had made expressions of remorse and taken steps to manage her drug dependence and drug abuse issues, the absence of current material on those matters meant that the Tribunal could not conclude that the respondent presented no current risk to the public. 
213	The respondent’s solicitor contended that, in the light of the respondent’s very significant criminal record, any future employer would be placed on notice about her past conduct.  He drew our attention to areas of work in health services where it is necessary for an employer to obtain a criminal record check or which depend on the holding of a ‘clearance’ which is only issued after the individual’s criminal record is checked and considered. 
214	As we understood it, the respondent contended that, given those requirements, a future potential employer would be required to obtain her criminal record or would rely on her having been issued with an appropriate clearance.  Whether or not that employer would engage the respondent is necessarily uncertain but, through the above mechanisms, we understood him to submit that any risk as to the respondent’s further work in health services would be adequately managed without a prohibition order being made under the National Law.
215	The respondent also relied on section 3(c) of the National Law which provides that one of the guiding principles of the national registration and accreditation scheme is 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.
216	The Board maintained its application for a prohibition order.  It contended that the Tribunal ought to make use of its power to make a prohibition order in respect of any health service rather than relying on individual potential employers to look into the respondent’s background.  
Discussion and decision 
217	The power to make an order prohibiting a person from providing any ‘health service’ is found in section 196(4) of the National Law.  Section 196A(1) of the National Law says:
A person must not contravene a prohibition order.
Maximum penalty—$60,000 or 3 years imprisonment or both.
218	The definition of ‘health services’ in the National Law is very wide ranging.  It says:
health service includes the following services, whether provided as public or private services—
(a) 	services provided by registered health practitioners;
(b) 	hospital services;
(c) 	mental health services;
(d) 	pharmaceutical services;
(e) 	ambulance services;
(f) 	community health services;
(g) 	health education services;
(h) 	welfare services necessary to implement any services referred to in paragraphs (a) to (g);
(i) 	services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists;
(j) 	pathology services. 
219	As has been stated in many decisions, it is by no means automatic that a prohibition order will be imposed on any practitioner.  It is appropriate to evaluate the risk the practitioner might pose if they provide a health service including by making use of their education and training in a health services role.   
220	In the case of nurses, it would be possible for an unregistered nurse to work as a disability worker or as a personal care attendant in aged care or in a hospital setting.  An unregistered nurse may work in a medical practice or pharmacy in an administrative role or in the cosmetic services industry. 
221	While the National Law section 3(c) guiding principal relied on by the respondent’s solicitor is directed towards members of the various health professions and not persons outside those, we found it to be of assistance in weighing up whether a prohibition order ought to be imposed in this case.  We asked ourselves whether a prohibition order was necessary to ensure any health service provided by the respondent was provided safely. 
222	We also took account of the existing other restrictions on a person being engaged in health services relied on by Mr O’Callaghan and discussed above. 
223	We considered the degree to which we could both identify the risk of possible harm to the public the respondent might pose and the likelihood of that risk coming to pass in the context of the necessity of imposing a prohibition order.  
224	We briefly summarise the other regimes we were asked to have regard to and their scope of operation. 
225	First: the Commonwealth Aged Care Act 1997 (Aged Care Act) and related Instruments.
226	The Aged Care Act prohibits an approved provider from appointing a disqualified individual to a role which falls within the meaning of ‘key personnel’.  The term ‘key personnel’ extends to executive decision makers, a person who is responsible for the nursing services provided by the service and who holds a nursing qualification and a person who is responsible for day-to-day operations. 
227	The Accountability Principles 2014 made under the Aged Care Act require that approved providers must obtain a police certificate before a person becomes a staff member.  An approved provider must be satisfied that a person has not been convicted of certain offences before allowing them to become a staff member.  The latter term is widely defined and would include staff working as personal care attendants and the like.
228	Second, the Worker Screening Act 2020 (Vic) (WSA) which regulates the approval of individuals to work in the disability sector and to work with children.  
229	Section 1 says that the main purposes of the WSA are to provide for screening of persons employed or engaged in risk assessed roles for the purposes of the National Disability Insurance Scheme and to assist in protecting children from sexual and physical harm by providing for screening of persons who work with or care for children.
230	The Victorian Secretary to the Department of Justice and Community Safety has powers to issue (or not) an ‘NDIS clearance’ or a ‘WWC clearance’ after considering matters including the criminal history of applicants.
231	When making screening decisions in respect of the disability sector, the health, safety and well-being of persons with a disability and the protection of persons with a disability from abuse, violence, neglect and exploitation must be the paramount consideration.
232	The paramount consideration when it comes to working with children is the protection of children from sexual or physical harm.
233	Under section 118(1) of the WSA, subject to limited exceptions, a person who does not hold an NDIS clearance must not engage in work in a risk assessed role.  The concept  ‘risk assessed role’ includes a role for which the normal duties include the direct delivery of specified supports or specified services to a person with disability or a role for which the normal duties are likely to require more than incidental contact with a person with disability.  The penalty for a breach of section 118(1) is a maximum of two year’s imprisonment or a fine.  
234	Similarly, under section 121 of the WSA, it is an offence to engage a person in child-related work (or offer to do so) if the worker does not have a current WWC clearance.  The same penalties as stated above apply.
235	The National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 provide that NDIS providers may only allow a worker to engage in a risk assessed role if the worker has an NDIS clearance.  Sections 123 and 124 of the WSA contain like offence provisions in respect of agencies engaging people who do not hold WWC clearances to work in child-related work.
236	For the purposes of the WSA, in respect of both NDIS and WWC clearances, the respondent’s offences are regarded as Category C offences.  That is because she was charged with and convicted of offences not captured by the defined WSA Category A and B offences and also because the respondent will have been the subject of a ‘relevant disciplinary or regulatory finding’, namely our decision to cancel her registration.
237	We proceeded on the understanding that the Board does not supervise or oversee compliance with prohibition orders, but may act if notified of a breach.  We also had regard to Health Services Commissioner’s role in regulating health services which fall outside the National Law.
238	We were satisfied that the regulatory regimes contained in the Aged Care Act and the WSA provide for scrutiny of people who wish to work with the most vulnerable members of society and the relevant agencies may be regarded as experts in those fields.  We also accept that those regimes might well mean the respondent is unable to obtain work where she would have opportunity to access opioid and other similar medications.  
239	Now turning to the question of the risk of future harm posed by the respondent, we identified that as potentially arising if the respondent again fell into addiction because her chronic pain was not well managed.  Those factors could lead her to again steal opioids or other regulated medications from individual patients or from an employer if she were working in a health service setting.
240	We have already commented on the absence of up-to-date information about the respondent’s health and rehabilitation – as stated the most recent medical report was from her general practitioner in January 2021.  We have referred to the fact we did not hear from the respondent directly as to how she views her own conduct, how it came to unfold, her appreciation of the degree of her departure from professional standards or how she has considered the harm she caused to patients, LCHS and her colleagues.  
241	We accept that the respondent might not have attended the hearing because of extreme shame.  Unfortunately, that has left us lacking detail and evidence to be comfortably satisfied that she may be regarded as safe to work again in the health sphere in the coming years.  
242	We ultimately decided it was not for us to cover the gaps in information as to risk and that, despite the availability of other risk management mechanisms, it was appropriate for us to exercise the power contained in the National Law to make the prohibition order.  Accordingly, we have made a prohibition order for a period of five years from the date of our orders.

243	We finish by acknowledging that the lengthy National Law process has been hanging over the respondent for a long time and that it would have led to ongoing stress and anxiety.  We hope for her sake that she continues to remain well and can commence moving on with her life.

 
A Dea
Senior Member and Presiding Member	M Archibald, PSM 
Health Practitioner Member	M Bylhouwer
Health Practitioner Member	

Appendix A 
Notice of Allegations
1. 	That Ms Spehar engaged in:
(a)	professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;
and/or
(b) 	unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,
in that, on or about 10 October 2019, Ms Spehar was convicted in the Magistrates' Court of Victoria of:
(a) 	11 counts of obtaining data with the intent of committing a serious offence contrary to section 247B of the Crimes Act 1958 (Vic) (Crimes Act);
(b) 	one count of attempted theft contrary to section 321M of the Crimes Act;
(c) 	12 counts of theft contrary to section 74 of the Crimes Act;
(d) 	four counts of burglary contrary to section 76(1) of the Crimes Act; and
(e) 	one three counts of committing an indictable offence while on bail contrary to section 30B of the Bail Act 1977 (Vic) (Bail Act).
PARTICULARS
(i) 	At all material times, Ms Spehar was a registered nurse.
(ii) 	the convictions were in respect of charges laid in respect of Ms Spehar's conduct on or about:
(A) 	26 March 2019, namely:
(I) 	11 counts of obtaining data with the intent of committing a serious offence contrary to section 247B of the Crimes Act;
(II) 	10 counts of theft contrary to section 74 of the Crimes Act; and
(III) 	four counts of burglary contrary to section 76(1) of the Crimes Act; and
(B) 	30 March 2019, namely:
(I) 	one count of attempted theft contrary to section 321M of the Crimes Act;
(II) 	two counts of theft contrary to section 74 of the Crimes Act; and
(III) 	three counts of committing an indictable offence while on bail contrary to section 30B of the Bail Act (two counts of which were later withdrawn);
(iii) 	The nature of the convictions are such that they affect or may affect Ms Spehar's suitability to practise as a registered nurse.
(iv) 	The International Council of Nurses Code of ethics for nurses (in effect from 1 March 2018) provides that:
(A) 1	. Nurses and people
The nurse's primary professional responsibility is to people requiring nursing care.
…
The nurse holds in confidence personal information and uses judgement in sharing this information.
…
The nurse demonstrates professional values such as respectfulness, responsiveness, compassion, trustworthiness and integrity;
(B) 	2. Nurses and practice
The nurse maintains a standard of personal health such that the ability to provide care is not compromised.
…
The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance its image and public confidence;
(v) 	The Board's Code of conduct for nurses (in effect from 1 March 2018) provides that:
(A) 	1.2 Lawful behaviour
Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must:
a. respect the nurse-person professional relationship by not taking possessions and/or property that belong to the person and/or their family.
b. comply with relevant poisons legislation, authorisation, local policy and own scope of practice, including to safely use, administer, obtain, possess, prescribe, sell, supply and store medications and other therapeutic products.
c. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration;
…
(B) 	3.5 Confidentiality and privacy
Nurses have ethical and legal obligations to protect the privacy of people. People have a right to expect that nurses will hold information about them in confidence, unless the release of information is needed by law, legally justifiable under public interest considerations or is required to facilitate emergency care. To protect privacy and confidentiality, nurses must: 
a. respect the confidentiality and privacy of people by seeking informed consent before disclosing information, including formally documenting such consent where possible.
…
d. access records only when professional involved in the care of the person and authorised to do so; and
…
(C) 	7.1 Your and your colleagues' health
Nurses have a responsibility to maintain their physical and mental health to practise safely and effectively. To promote health for nursing practice, nurses must:
…
d. seek expert, independent and objective help and advice, if they are ill or impaired in their ability to practise safely.
…