1. Separately from these medications in the paper bag, the police found further boxes of medication namely;

Metoclopramide hydrochloride monohydrate (referred to herein as metoclopramide), and

1. Metoclopramide is sometimes referred to in the documents by the trade names Maxalon or Pramin.
2. None of these further medications found separately were affixed with a dispensing label. There were other medications in the respondent's house that did have dispensing labels attached. These were not seized by the police and no allegation is made about them.
3. Each of the above medications are poisons listed in Schedule 4 of the Poisons Standard made under s 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth) and are prescription drugs within the meaning of s 4 of the Controlled Substances Act 1985 (SA) and are regulated by s 18 of that Act.
4. It is agreed that the respondent misappropriated the following medications from the above lists from his employer;

1. Of the above further medications found separately, the following were agreed as not being the subject of current prescriptions for the respondent or any members of his family, namely;

1. It follows from this that the respondent possessed these medications without lawful authority.
2. There is a dispute as to whether or not the respondent possessed the following medications without lawful authority;

1. It is therefore necessary for the Tribunal to consider the evidence about this issue. We will consider this later in these reasons.
2. We set out a table showing the general use of each of the above medications. This may be helpful in giving some background to the detailed facts in this matter.

1. On 25 November 2022, the Board received notification from the respondent's employer relating to the above conduct.
2. On 11 January 2023, the Board proposed to take immediate action pursuant to s 156(1)(a) of the National Law in the form of suspending the respondent's registration. The respondent was informed of this. On the same day, the Board decided, pursuant to s 160(1)(a) of the National Law, to commence an investigation into the respondent's conduct.
3. On 23 January 2023, the respondent provided a proposed undertaking not to practise as a nurse.
4. On 25 January 2023, the Board decided to take immediate action under s 156(1)(a) of the National Law, by accepting the respondent's proposed undertaking not to practice.
5. By letter dated 5 April 2023 (Tribunal Book (TB) page 269) the respondent's employer, Southern Adelaide Local Health Network, terminated his employment.
6. On 27 April 2023, the respondent wrote to AHPRA requesting an end to the undertaking on the basis that the undertaking had resulted in termination of his employment and consequent financial hardship.
7. On 2 June 2023, in the Adelaide Magistrates Court, the respondent pleaded guilty to one charge of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 in relation to the medications misappropriated from the employer.
8. The Magistrate's remarks noted the early plea of guilty and the fact that the respondent had lost his job due to this offence and had four excellent references. He said,

"Given your community service, your excellent references, your work ethic as identified in those references, and no antecedent history I consider it appropriate not to record a conviction in this matter. > > I would order a bond of 6 months in the sum of $500.00, and just a simple bond."

9. Whilst we note the Magistrate's remarks, we make our own assessment as to the seriousness of the respondent's conduct on the facts as before us.
10. On 28 June 2023, following a show cause period, the Board decided to take an alternative form of immediate action under s 156(1)(a) of the National Law by imposing conditions on the respondent's registration. The conditions required the respondent to, amongst other things, practise only at places approved by the Board and when supervised by another registered nurse.
11. The respondent sought a review of this decision by application to this Tribunal, such application being heard on 14 September 2023. On 28 September 2023, the Tribunal affirmed the Board's decision.
12. On 8 May 2024, the Board determined to refer the matter of the respondent's conduct to the Tribunal pursuant to s 193(1)(a) of the National Law because it believed that he had behaved in a way that constituted professional misconduct.
13. In these proceedings, the respondent accepts that his admitted conduct in misappropriating medication belonging to his employer was inconsistent with;

(i) Principle 1.2 of the Code of Conduct for Nurses, effective from 1 March 2018,

(ii) Standards 1.1, 1.3 and 2.2 of the Enrolled Nurse Standards for Practice effective from 1 January 2016,

(iii) Standards 1.4, 1.5 and 6.5 of the Registered Nurse Standards for Practice effective from 1 June 2016, and

(iv) Elements 1.8, 2.1, 2.5 and 3 of the International Council for Nurses' Code of Ethics for Nurses, effective from 1 March 2018 and revised on 20 October 2021,

and constitutes professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in s 5 of the National Law.

1. In these proceedings, the respondent also admits that his admitted conduct in having possession of medications without lawful authority was inconsistent with;

(i) Principle 1.2 of the Code of Conduct for Nurses, effective from 1 March 2018,

(ii) Standards 1.1, 1.3 and 2.2 of the Enrolled Nurse Standards for Practice effective from 1 January 2016,

(iii) Standards 1.4, 1.5 and 6.5 of the Registered Nurse Standards for Practice effective from 1 June 2016, and

(iv) Elements 1.8, 2.1, 2.5 and 3 of the International Council for Nurses' Code of Ethics for Nurses, effective from 1 March 2018 and revised on 20 October 2021,

and constitutes professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in s 5 of the National Law.

1. Both the Board and the respondent have proposed that this Tribunal should impose a reprimand and cancellation of the respondent's registrations. They have both proposed that there should be a period of disqualification, the Board proposing 18 months to 2 years, and the respondent proposing 12 months from the date of this Tribunal's orders.
2. In addition to the above, the Board seeks a prohibition on the respondent accessing medications during the provision of any health service until such time as the respondent is registered as a health practitioner. The practicality of such a prohibition would be that the respondent would be prevented from accessing medications during the provision of any health service by him. This would include hospital services, mental health services, community health services and certain other services provided by social workers for which registration as a health practitioner is not required.
3. In view of the common elements in the submissions of the Board and the respondent, it might appear that the factual differences as to the number of medications possessed by the respondent without lawful authority have minimal significance. The Board has, however, submitted that if this Tribunal finds that the respondent has wrongfully disputed the allegation of unlawful possession of some medications, this indicates a lack of candour and insight in that the respondent has not fully faced up to his misconduct and indicates that the respondent has not properly reformed.
4. Viewed from the respondent's perspective, he has made very significant admissions both as to the facts and as to their significance in the context of the various applicable codes of conduct.

1. In these proceedings, the Tribunal needs to be satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the respondent and, in considering the matter, we have been mindful of the general statements of law and the following caution expressed in Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336 per Dixon J:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."

2. The Board has made extensive submissions as to the three medications found at the respondent's house, and in respect of which the respondent disputes possession without lawful authority. It is not alleged that these were wrongfully taken from the respondent's employer. The only allegation is that they were in his possession without lawful authority. These medications are;

1. We record some legislative provisions as to the issue of possession of medication without lawful authority. These medications are each a "prescription drug" as defined by the Controlled Substances Act 1984. Section 18 of that Act provides;

"A person must not have in his or her possession a prescription drug (not being a drug of dependence) unless he or she -

(a) Is the person, or acting on behalf of the person, for whom the drug has been lawfully prescribed or supplied;

... "

1. Regulation 26(2)(a) of the Controlled Substances (Poisons) Regulations 2011 provides;

"For the purposes of section 24(c) of the Act, a package or container in which a poison for human or animal therapeutic use is sold by retail on prescription, or is supplied on prescription -

(a) Must have affixed to it a label that complies with Appendix L Part 1 of the Uniform Poisons Standard; and

..."

1. This applies to the medications now under consideration. The practical effect of these provisions is that when medications that require a prescription are supplied by a pharmacist or doctor for a patient to take at a later date, the medications must have a label on them. That is the law in South Australia. If medication is purchased overseas in such places as Southeast Asia, this rule does not apply. It is therefore necessary for us to consider whether the respondent might have obtained any of the relevant medications from overseas without a prescription. If so, such possession would be lawful.
2. There have been lengthy interviews of the respondent both by the police and by representatives of the Board. We have considered all of these as part of the evidence.
3. It is a common understanding of those familiar with nursing practice that doctors may provide medication to patients for immediate administration without a label being made up. When a doctor provides a patient with medication to take at a later time, it is proper practice to provide a prescription for the patient to fill at a pharmacy as urgent administration is not necessary. This ensures that the medication is correctly labelled stating what the medication is and the dosage to take.
4. The investigations in this matter have included obtaining the medical records of the respondent and his immediate family members from various medical service providers. The purpose of this appears to have been to look for evidence of medications prescribed.

1. We firstly consider the circumstances surrounding ondansetron.
2. In the respondent's response to the allegations, he states at TB page 22 that ondansetron was prescribed for his wife.
3. A letter to Dr Kee Wong from Flinders Medical Centre at TB page 827 record that on 5 August 2019 the respondent's wife was treated with ondansetron while in Flinders Medical Centre with a complaint of nausea relating to pregnancy.
4. There is no evidence to suggest that the respondent obtained the ondansetron from any other source. He has not put forward any other explanation for his possession of this medication.

1. Unlabelled trimethoprim was found by the police in the home of the respondent. The respondent's response to the allegations states that the trimethoprim was prescribed for the respondent's wife by the Locum Doctor after-hours service.
2. There was very little evidence and argument about trimethoprim specifically, and we have not been referred to any evidence of a prescription having been made.

1. In the respondent's response to the allegations, he states at TB page 22 that metoclopramide was prescribed for his wife.
2. We now consider the various answers to questions given by the respondent about metoclopramide. When interviewed by the Board's investigators on 6 March 2024 the respondent said at TB page 435 answer 68 that metoclopramide was one of the medications that he had taken from his employer. That has not been alleged, and we take it that this was not one of those medications in fact.
3. In the same interview at TB page 438 answer 105 the respondent said that metoclopramide was his father's medication and that his father had brought it with him when he came from New Zealand. Thus, there are inconsistent answers given by the respondent.
4. There is reference in a letter from Dr Wong dated 12 August 2019 at TB page 831 that the respondent's wife had been prescribed Pramin, being a trade name for metoclopramide.
5. There is no other record that has been pointed out to us of any prescription of metoclopramide for the respondent or his family. Whilst it is possible that the respondent's wife kept the Pramin for a number of years, we consider this unlikely. Had this been so, we would have expected that the Pramin would have been labelled as required by law.
6. Although it has not been specifically alleged, we take account of the possibility that the metoclopramide was obtained from somewhere overseas where medication labels were not applied to medication sold. The respondent has not put forward this explanation, and there is no evidence in the material before us to indicate that this did occur.

1. We find that there are two important facts that are not in dispute. Firstly, these three medications that are in dispute were found at the home of the respondent without labels affixed. Secondly, the respondent did have other medications in his possession without labels affixed which the respondent admits were in his possession without lawful authority.
2. Having considered the evidence as summarised above, we find that the respondent did have possession of the ondansetron, trimethoprim and metoclopramide without lawful authority. If these medications had been lawfully prescribed for the respondent or his family, there would have been labels on the medications. The inconsistencies in the answers of the respondent to questions during interview confirm that conclusion.
3. In particular, we are satisfied that the ondansetron found at the respondent's home without a label would not have been medication provided by the doctor at Flinders Medical Centre in August 2019.

1. Counsel for the Board submitted that if this Tribunal finds the disputed allegation was correct, it will necessarily follow that the respondent has not fully acknowledged his misconduct and has limited insight into his misconduct.
2. We accept that this is so, but we also find that there are considerations to the contrary.
3. The reason for the respondent not admitting all drugs were possessed without lawful authority is not clear. He had very little to gain from his denial. He admitted most of the misconduct alleged and also conceded that each of the two types of misconduct constituted professional misconduct. The most serious misconduct was the misappropriation of drugs from his employer, which was fully admitted. He accepted that the misconduct warranted a cancellation of his registration and a period of disqualification.
4. It seems to us that he admitted the allegations where there was clear proof, but denied those where proof was not clear.
5. Overall, we find that the respondent does have insight into the seriousness of his misconduct. As a result of his misconduct he has lost his job and will have great difficulty in finding another job as a health practitioner. He was prosecuted and a finding of guilt was made upon his plea, although a conviction was not recorded. His life has been significantly changed by the investigations by the police and the Board.

1. The misconduct was in breach of standards of honesty and integrity that are essential in the practice of nursing. It is also of significance that the respondent says that he took the medication for use by his immediate family. This raises concern in that the medication that had been previously prescribed would continue to be used without the supervision or advice of a doctor. Whilst nurses are experienced in the use of drugs for particular purposes, they do not have the qualifications or experience of a doctor to verify that use of particular medication should continue in a set dose in all the circumstances. Nurses do not have the qualifications or experience to take account of any symptoms that a patient might display in deciding whether the use of a medication should continue. Nurses should not make such judgements.
2. The purpose of sanctions is firstly to protect the public from practitioners who do not adhere to the required standards, and secondly to re-assure the public that breaches are not tolerated and demonstrating that the public should have confidence in registered health practitioners. Further, the sanctions serve as a warning to other health practitioners that if they breach standards, serious consequences will follow.
3. The parties have both accepted that the misconduct should be characterised as professional misconduct. We agree. The parties have also both accepted that a sanction is appropriate. We agree. The parties have both accepted that the respondent should have his registration as a nurse cancelled. We agree.
4. The Board's submissions included references to the decisions in Nursing and Midwifery Board of Australia v Brown [2021] SACAT 22 at para 36 and Pharmacy Board of Australia v WYH [2021] VCAT 509 at para 35. We do not set these passages out. They make it clear that misappropriation of medications is a serious matter and involves a serious breach of trust. The public has a reasonable expectation that registered health practitioners will behave legally, ethically and in a trustworthy manner.
5. The Board has submitted that a disqualification period of 18 months to two years should be set. The respondent has submitted that 12 months disqualification would be appropriate. We consider some relevant evidence as to the circumstances of the respondent. In saying that, we are conscious that sanctions are not a punishment, and as such, sanctions are not mitigated by the personal circumstances of the respondent in the same way as a criminal penalty would be.
6. In the hearing, the respondent read out an apology and reflective statement in which he expressed his "deepest and most sincere apology for the professional misconduct [he] committed". He says, and we accept, that he has an otherwise unblemished record. He is married and has two young children to support. He has also provided financial assistance to his elderly parents. He has suffered ongoing stress which he says has impacted his mental health, and he has required treatment for depression and suicide ideation.
7. He also states that he has taken steps to rehabilitate himself and demonstrate genuine insight, including;
   • Engaging in ethical education (completed training in Ethics & Code of Conduct and SA Public Sector Code of Ethics),
   • Working in a non-clinical care role at Helping Hand Aged Care Inc., and
   • Committing to any future regulatory and practice requirements.
8. We also note that the respondent is a justice of the peace and has a number of character references.
9. We have carefully considered the appropriate period for disqualification and have reached the conclusion that a disqualification period of 15 months from the date of this order is appropriate.
10. The Board seeks an order that the respondent pay the costs of the Board, and we accept that this is appropriate.

1. The respondent has sought an order for removal of current conditions on registration upon re-registration. Conditions presently exist by reason of a letter by the Board dated 28 June 2023 (TB page 334) which imposed conditions upon the registration of the respondent as a form of immediate action pursuant to ss 155-6 of the National Law. Briefly, the conditions required the respondent to only practise as a health practitioner at a place of practice approved by the Board, and then only when supervised by another registered nurse.
2. Since these conditions are a restriction on the registration of the respondent, it follows that if the registration is cancelled, the conditions will no longer apply. If, in the future, the respondent is again registered, there will be no conditions applying to that new registration unless conditions are applied under s 83(1) of the National Law, which provides;

"If a National Board decides to register a person in a health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances."

3. It will be for the Board to consider that question if it does in the future grant registration to the respondent. We therefore find that the order sought by the respondent is not necessary, and we decline to make such an order.
4. As mentioned above, the Board seeks an order under s 196(4)(c) of the National Law imposing a prohibition on the respondent accessing medications during the provision of any health service until such time as the respondent is registered as a health practitioner.
5. Section 196(4)(c) provides;

"(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to do one or more of the following - > > ...

(c) impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the person."

1. We understand that the purpose of the Board seeking such an order would be to cover the situation if the respondent took up employment in a job that did not require registration as a health practitioner but where he would have access to prescription medication. The concern of the Board is that the respondent could not be trusted to handle medication in that situation.
2. The Board has referred to the decision of the Full Court of the Supreme Court in Marin v Chiropractic Board of Australia [2020] SASCFC 74 and the decision of Osteopathy Board of Australia v Ratcliff [2021] VCAT 658. These decisions follow the reasoning put forward by the Board.
3. We understand the concern of the Board, and the reason for seeking such an order. As against that, we do not wish to impose a restriction unless is it reasonably necessary and serves a real purpose.
4. On careful consideration, we have decided that the risk of the respondent obtaining a position where he has access to boxes of prescription medication and the practical ability to misappropriate it is extremely remote. The practicality is that access to prescription medication is strictly regulated by law and workplaces have strict controls to ensure that only qualified persons such as registered nurses can access such medication in quantity.
5. We distinguish the present facts from others where drugs of addiction (Schedule 8 medication) have been misappropriated. Where drugs of addiction are the concern, the temptation to misappropriate such drugs would be much stronger. Having observed the respondent during the hearing and considering all the other evidence, we are of the view that the respondent has learned his lesson and is unlikely to re-offend, even if the opportunity somehow exists, which we consider extremely remote.
6. For these reasons, we decline to make an order specifically prohibiting the respondent from accessing medications.

1. The Tribunal decides pursuant to s 196(1) of the National Law that:

1.a. The respondent has behaved in a way that constitutes professional misconduct.

1. The Tribunal imposes the following disciplinary action:

2.a. The respondent is reprimanded pursuant to s 196(2)(a) of the National Law;

2.b. The respondent's registration as a nurse is cancelled pursuant to s 196(2)(e) of the National Law;

2.c. The respondent is disqualified from applying for registration as a registered health practitioner for a period of 15 months from the date of this order pursuant to s 196(4)(a) of the National Law;

1. The respondent must pay the costs of the applicant to be agreed or fixed by the Tribunal