Nursing and Midwifery Board of Australia v Anni (Corrected) (Review and Regulation) [2024] VCAT 214

1. Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law), the Tribunal reprimands Sheanadz Anni, Justin May Carpio and Grzegorz Grodzinski.
2. Under section 196(2)(d) of the National Law, the Tribunal suspends the registrations of Sheanadz Anni, Justin May Carpio and Grzegorz Grodzinski as health practitioners for a period of three months from the date of this order.

1. The Nursing and Midwifery Board of Australia (the Board) has referred to the Tribunal allegations concerning the respondents, Ms Sheanadz Anni, Ms Justin May Carpio, and Mr Grzegorz Grodzinski, under section 193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law). The referrals were dated 18 August 2022. There was a Notice of Allegations that accompanied each referral.
2. Ms Anni, Ms Carpio and Mr Grodzinski are, and at all material times were, registered nurses.
3. Each case involves an allegation by the Board that in July 2020 the respondent attended a gathering at an aged care facility - Epping Gardens Aged Care Home (Epping Gardens) - in contravention of COVID-19 public health directions that were in force. The respondents were employed as nurses at Epping Gardens but they were not rostered to work at the time the gathering took place.
4. There are three separate proceedings that we have heard and determined together.[1] The hearing was held on 22 November 2023. Ms Carpio and Mr Grodzinski attended with their legal representatives. Ms Anni was unwell on the day but she was able to participate in the hearing via video link.
5. We announced our findings and made final orders at the hearing. We now provide written reasons for our decision.
6. Ms Anni, Ms Carpio and Mr Grodzinski have admitted that they engaged in the conduct alleged.
7. The parties submitted an 'Agreed Statement of Facts, Findings and Proposed Determinations' (Agreed Statement) for each proceeding.
8. The Agreed Statements and the parties' submissions in the three cases are to the same general effect. It is convenient to discuss the cases generically to some extent though we have of course been informed about each nurse's individual circumstances. We will refer to their individual circumstances later in our reasons for decision.

Summary of the allegation and the surrounding circumstances

1. The Board alleges that on 16 July 2020 Ms Anni, Ms Carpio and Mr Grodzinski attended a baby shower at Epping Gardens at a time when they were not rostered for work. The baby shower was held in a vacant residential aged care room at the facility. The Board alleges that that the respondents attended the gathering in contravention of 'Care Facilities Directions' and/or 'Stay at Home Directions' in force at the time, and that their conduct was inconsistent with relevant Codes and Standards for nurses.
2. It is common ground that, four days after the respondents attended the gathering, an outbreak of COVID-19 commenced at Epping Gardens. The outbreak resulted in major tragedy. According to an independent review commissioned by the Commonwealth Department of Health (the independent review), 103 (out of 119) residents and 86 staff became infected with the virus. Thirty-eight residents died - some of them at Epping Gardens and others after they were transferred to hospital.[2]
3. Notably, these events occurred before any COVID-19 vaccine was available.
4. The Care Facilities Directions were the 'Care Facilities Directions (No 6)' introduced by the Victorian Government on or about 1 July 2020 under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act).
5. The Care Facilities Directions had the express purpose of restricting access to care facilities 'in order to limit the spread of [COVID-19] within a particularly vulnerable population'.
6. The Care Facilities Directions applied to Epping Gardens because it was a 'residential aged care facility' as defined in the directions. The directions prohibited the respondents from entering the facility when they did because, at that time, they did not satisfy the definition of 'worker', 'visitor' or 'resident' in the directions.
7. The Stay at Home Directions were the 'Stay at Home Directions (Restricted Areas)' introduced by the Victorian Government on or about 8 July 2020 under the PHW Act.
8. The Stay at Home Directions had the express purpose of addressing 'the serious public health risk posed to Victoria' by COVID-19.
9. The Stay at Home Directions applied to the respondents because each of them resided in a restricted area as defined in the directions. The directions prohibited the respondents from attending the gathering, because the directions prohibited them from leaving their home other than for one or more of the reasons specified. In summary, the reasons specified were to obtain necessary goods or services; to provide care or for other compassionate reasons; to attend work or education; to exercise or participate in outdoor recreation; and/or other reasons specified in the directions.
10. The respondents left their home for reasons other than the permitted reasons. They attended a private gathering that was prohibited under the directions.
11. The relevant Codes and Standards were the Board's 'Code of Conduct for Nurses' and 'Registered Nurse Standards for Practice', and the International Council of Nurses' 'Code of Ethics for Nurses'. We refer further to the Codes and Standards below.
12. Unsurprisingly, the episode attracted considerable media attention. The media reported that everyone who attended the baby shower contracted the virus at about that time. (The Board's materials actually indicate that Ms Carpio and Mr Grodzinski contracted the virus whereas Ms Anni had to isolate. In a statement she made in October 2020, Ms Anni said that she had been lucky to have tested negative before and after the gathering).

1. There were investigations commenced not long after the day of the gathering. Among other agencies, Victoria Police became involved although no criminal charges were ever laid, apparently.
2. Within weeks of the episode, a notification was made to the Board on behalf of the employer. The notification stated that on 16 July 2020, during the period of COVID-19 stage three restrictions, a registered nurse allowed an unauthorised baby shower in a vacant residential aged care room. Three other nurses who were not on duty entered and exited the building. The notification mentioned that all those who attended later tested positive for COVID-19. The notification otherwise referred to some incidental matters that do not appear in the Notice of Allegations.
3. The independent review was commissioned by the Commonwealth Department of Health. The report was published in November 2020. The report focussed on Epping Gardens and another aged care facility. At the beginning of the report there is an acknowledgement that COVID-19 outbreaks at those facilities had 'an enormous personal toll on residents, their families and friends' and 'significantly impacted the personal and professional lives of so many people, who work every day to support or care for people who live in residential care'.
4. As the Board's submissions in the present cases note, after the report recorded the number of cases at Epping Gardens, including deaths, the authors made important comments. What the authors said was this:

These stark numbers do not begin to convey the trauma and grief suffered by all residents, whether or not they developed COVID-19, and the enormous impact on their families. They do not account for the distress of staff members, who knew and had cared for residents for long periods but were quarantined and obliged to leave them in the care of "strangers". Many of the agency workers who replaced quarantined staff, came with little, if any, preparation or experience in aged care and were also deeply traumatised by the experience.

1. We highlight the fact that the Board did not allege that the respondents caused the outbreak at Epping Gardens. The parties agree that there is no evidence that any of the respondents (or anyone else who attended the baby shower) caused the outbreak. The independent report stated that the source of infection for the outbreak had not been established.
2. In the case of Ms Anni and Ms Carpio, in January 2021 the Board proposed to take immediate action to suspend their registrations. After the Board received submissions, character references, and evidence that they had undertaken education about COVID-19 and other relevant topics, the Board decided not to take immediate action.
3. In the case of Mr Grodzinski, in January 2021 the Board proposed to take immediate action to suspend his registration. He too responded to the Board, but the Board decided to impose supervision conditions on his registration. Within a few months, Mr Grodzinski applied to the Board to review its decision. He submitted a letter from his employer at the time, and relevant supervision reports. In April 2021 the Board removed the conditions.
4. Mr Stoller, for the respondents, made special reference to the material that the respondents provided to the Board in connection with the immediate action process: see below.

The allegation in respect of [each respondent] is:

(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;

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, on 16 July 2020 [the respondent] attended a baby shower at Epping Gardens Aged Care Home (Epping Gardens), in contravention of the:

(a) Care Facilities Directions (No 6) (Care Facilities Directions); and/or

(b) Stay at Home Directions (Restricted Areas) (Stay at Home Directions).

(i) at all material times, [the respondent] was a registered nurse;

(ii) at all material times, [the respondent] was employed at Epping Gardens;

(iii) on or about 1 July 2020, under the Public Health and Wellbeing Act 2008 (Vic) (PHW Act), the Victorian Government introduced the Care Facilities Directions;

(iv) the Care Facilities Directions applied to Epping Gardens, in circumstances where Epping Gardens is a residential aged care facility;

(v) on or about 8 July 2020, under the PHW Act, the Victorian Government introduced the Stay at Home Directions;

(vi) the Stay at Home Directions applied to [the respondent], in circumstances where [they] resided in the 'Restricted Area', as defined in those directions;

(vii) on 16 July 2020, [the respondent] entered Epping Gardens to attend a baby shower;

(viii) [the respondent's] conduct at paragraph (vii) was in contravention of the:

(I) [the respondent] did not satisfy the definition of 'worker' (clause 6), 'visitor' (clause 7) and/or 'resident' (clause 10) when she attended Epping Gardens;

(II) in light of (I) above, [the respondent] was prohibited under clause 5 of those directions from entering Epping Gardens; and/or

(I) clause 5 of those directions restricted persons who ordinarily resided in the Restricted Area (as defined in clause 13, and which [the respondent] did) from leaving their premises, other than for one or more of the reasons specified in:

(2) clause 7 (care or other compassionate reasons);

(4) clause 9 (exercise or outdoor recreation); and/or

(II) [the respondent] left [their] home for reasons other than those permitted under the directions; and

(III) [the respondent] attended a private gathering, in circumstances where gatherings were restricted under clause 11 of those directions;

(ix) The conduct of [the respondent] set out at particular (vii) is of a lesser standard than that which might reasonably be expected of [the respondent] by the public or by [the respondent's] professional peers - and is inconsistent with:

(A) the Board's 'Code of Conduct for Nurses' (in effect since 1 March 2018), which provides that:

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:

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...

...

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:

1. understand and promote the principles of public health, such as health promotion activities and vaccination

(B) the Board's 'Registered Nurse Standards for Practice' (in effect since 1 June 2016), which provides that:

Standard 1: Thinks critically and analyses nursing practice

RNs use a variety of thinking strategies and the best available evidence in making decisions and providing safe, quality nursing practice within person-centred and evidence-based frameworks.

The RN:

...

1.4 complies with legislation, common law, policies, guidelines and other standards or requirements relevant to the context of the practice when making decisions

...; and

(C) the International Council of Nurses' 'Code of Ethics for Nurses' (adopted by the Board and applicable to all nurses in Australia from 1 March 2018, and in effect from 1 March 2018 to 9 November 2021), which provides that:

...

The nurse shares with society the responsibility for initiating and supporting action to meet the health and social needs of the public, in particular those of vulnerable populations.

...

The nurse demonstrates professional values such as 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.

...

The nurse strives to foster and maintain a practice culture promoting ethical behaviour and open dialogue.

...

The nurse is active in developing and sustaining a core of professional values

The nurse, acting through the professional organisation, participates in creating a positive practice environment and maintaining safe, equitable social and economic working conditions in nursing.

...

The nurse contributes to an ethical organisational environment and challenges unethical practices and settings.

...

The nurse takes appropriate action to safeguard individuals, families and communities when their health is endangered by a co-worker or any other person.

The nurse takes appropriate action to support and guide co-workers to advance ethical conduct.

Establish standards of care and a work setting that promotes quality of care.

Monitor and promote the personal health of nursing staff in relation to their competence for practice.

Develop workplace systems that support common professional ethical values and behaviour.

Principles concerning the proper approach to an Agreed Statement

1. The principles concerning the proper approach for a tribunal to take to an Agreed Statement of the kind submitted in these cases have been discussed in numerous decisions of courts and tribunals. The authorities recognise that it is ultimately for the Tribunal to be satisfied that the findings and determinations are appropriate. No agreement between a regulator and the practitioner can supplant that duty. Nevertheless, any agreement between the parties is a highly relevant matter: Medical Board of Australia v McGrath [2014] VCAT 641 at [19]- [21].
2. The decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46 concerned an agreed civil penalty. The penalty was a pecuniary one, but the majority judgment considered the principles broadly. The Court made important observations about the public interest in promoting the resolution of cases by negotiation between a regulator and defendant, noting that it is to be expected that the regulator will be able to offer informed submissions about the agreement.
3. Referring specifically to pecuniary penalties, the Court made clear that the earlier cases it was considering do not suggest that the task of a tribunal is to determine whether the submitted penalty is wholly outside the range of penalties reasonably available. They do not suggest, either, that a tribunal is bound by the figure suggested by the parties. To the contrary, the tribunal is not bound. A tribunal asks whether the proposal can be accepted as fixing an appropriate amount, and for that purpose the tribunal must satisfy itself that the submitted penalty is appropriate: see especially [46]-[48].
4. The Court went on to say in effect that, subject to a tribunal being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the proposed penalty is 'an appropriate remedy in the circumstances thus revealed', it is consistent with principle and highly desirable in practice for the tribunal to accept the parties' proposal and therefore impose the proposed penalty: at [58]. Earlier in the judgment the Court noted observations previously made about the 'particular care' that should be taken - 'when and if a poorly resourced respondent were party to a joint penalty submission' - to 'scrutinise the submission and supporting statement of facts ... to ensure, so far as possible, that the statement of facts was accurate and the contravener's will had not been overborne': at [31]. VCAT has observed that whether the person is legally represented may be an important consideration: see Dental Board of Australia v Powell [2013] VCAT 999.
5. It is significant to note in the present cases that, beyond whatever other negotiations the parties may have had, they participated in a Compulsory Conference conducted by a senior member of VCAT in May 2023.
6. As VCAT has observed before, it is important to take the parties' agreement into account in forming its own view on relevant matters, 'particularly ... when it is clear from the face of the agreement that it does not represent an arbitrary outcome but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances': Medical Board of Australia v Fox [2016] VCAT 408 at [6].

1. The Board carries the burden of proof. The standard of proof is the usual civil standard: on the balance of probabilities. In the context of disciplinary proceedings where serious misconduct is alleged, the Court of Appeal has observed that the well-known principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 'reflect common sense notions of probability with respect to human conduct and it is entirely proper for [VCAT] to take them into account': see Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322 at [26]. In Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 the Court referred to Briginshaw before stating that it was entirely proper for VCAT to require that it be 'comfortably satisfied' of the facts in issue: at [37]. See also Medical Board of Australia v Alkazali [2017] VCAT 39 at [33]- [36].
2. We mention now that the Tribunal Book contains the Board's investigation materials which include witness statements made by key personnel at Epping Gardens and relevant policies and material issued to staff about requirements for managing risks associated with COVID-19.
3. There was relevant CCTV footage available. We have not been required to view that. There were still photographs available to us.
4. On the basis of the evidence contained in the Tribunal Book and the admissions made by Ms Anni, Ms Carpio and Mr Grodzinski, we are comfortably satisfied that each of them engaged in the conduct alleged in the Notice of Allegations.
5. We announced our findings at the hearing.

1. Section 5 of the National Law includes the following definition of 'professional misconduct'.

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. The parties' joint position is that Ms Anni, Ms Carpio and Mr Grodzinski's conduct amounted to professional misconduct within the meaning of paragraph (a) the definition of 'professional misconduct' in section 5 of the National Law.
2. The Codes and Standards referred to in the Notice of Allegations are evidence of what constitutes appropriate professional conduct or practice for the nursing profession: see section 41 of the National Law.
3. The Codes and Standards required, in particular, that the respondents not engage in unlawful behaviour and that they promote the principles of public health. As nurses, the respondents shared with society the responsibility for supporting action to meet the health needs of the public, in particular the needs of vulnerable persons like the residents at Epping Gardens.
4. Ms Anni, Ms Carpio and Mr Grodzinski breached public health orders, being the Care Facilities Directions, which had the express purpose of limiting the spread of COVID-19 to vulnerable populations; and the Stay at Home Directions, which had the express purpose of addressing the serious public health risk posed by COVID-19.
5. In submissions on behalf of the Board, Ms Isobel noted that the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards'.[4]
6. In our view, Ms Anni, Ms Carpio and Mr Grodzinski's conduct involved a very serious departure from the proper standards of professional conduct for a registered nurse. We consider that each of them engaged in professional misconduct within the meaning of paragraph (a) of the definition of 'professional misconduct' in section 5. The conduct was unprofessional conduct that amounted to conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
7. We note, in summary, Ms Isobel's further submissions concerning the characterisation of the respondents' conduct. The conduct was serious. It was contrary to the health, welfare and safety of residents at Epping Gardens. Already there had been outbreaks of COVID-19 at residential aged care facilities in Victoria. The Care Facilities Directions and the Stay at Home Directions were clear. Even though there is no evidence that the respondents were responsible for the outbreak at Epping Gardens, there was risk inherent in their behaviour. Ms Isobel noted the trauma to residents and their families but she acknowledged that it was likely shared by the respondents and their professional colleagues at Epping Gardens. We have referred to relevant comments made by the authors of the independent report.
8. Ms Isobel emphasised that Epping Gardens was the respondents' place of work. The nurses shared the responsibility for the health and care of the residents. Their conduct had a direct connection to their practice.
9. Ms Isobel submitted that the decision to breach public health orders and attend the baby shower undermined the nursing profession's good standing and the trust that exists between the public and the profession. In this context, Ms Isobel referred to the extensive media reporting of the incident. The conduct was at odds with community expectations, she submitted.
10. Finally, Ms Isobel referred to comparable cases to support a finding of professional misconduct within paragraph (a) of the definition. We discuss those cases later in the context of our determinations.
11. We accept the submissions made on behalf of the Board and note again that the parties put forward a joint position on characterisation of the conduct.
12. We announced our characterisation of the conduct at the hearing.

1. Before we turn to our determinations, we record relevant information about Ms Anni, Ms Carpio and Mr Grodzinski.

1. Ms Anni is aged in her late thirties. She obtained general registration as a nurse in Australia in October 2017. Ms Anni first qualified in the Philippines in 2009 and worked as a nurse there and in another country before coming to Australia. Her mother and three children are living in the Philippines. Ms Anni supports her children as sole parent. Ms Anni arrived in Australia in or about 2014 and became an enrolled nurse. She worked as a registered nurse at Epping Gardens in July-August 2020. She resigned in August 2020. As it is put in the submissions on her behalf, Ms Anni has continued to practise as a registered nurse, though mainly in an agency setting because (with the Board's investigation and the present proceeding 'hanging over her head') she had been unable to focus on a permanent position. Ms Anni had put her professional life 'on hold'.
2. Ms Anni was referred by her solicitor for a psychological assessment. The clinical psychologist who saw her reported in August 2023 in particular that Ms Anni said that she attended the gathering at Epping Gardens because she did not want to be seen to be rude to her colleagues: she had a strong desire to please others on account of her upbringing and cultural expectations or norms. This overrode her judgement. The psychologist said in effect that Ms Anni deeply regretted her actions and fully understood the ramifications.
3. Acknowledging that the consequences of Ms Anni's behaviour would be a matter for the Tribunal, the psychologist said that Ms Anni presented as an honest woman who was deeply regretful of her actions. The psychologist expressed the view that Ms Anni is not likely to engage in such behaviour in the future.

1. Ms Carpio is aged in her early thirties. She qualified in nursing in Victoria in March 2019 and obtained general registration as a nurse. She then began working at Epping Gardens. Ms Carpio resigned from Epping Gardens in March 2021. She continues to practise nursing. For well over a year, Ms Carpio has been working in a Medical Centre in a Melbourne suburb. For reasons to do with her own health that were explained to us, the new role has suited her.
2. Ms Carpio was referred by her solicitor for a psychological assessment by the same clinical psychologist who saw Ms Anni. The psychologist reported in August 2023 in particular that Ms Carpio said she felt pressured to attend the gathering when she received an invitation. She said that the nurses knew that 'COVID was happening' but it wasn't 'in [their] brains yet'. She said she felt 'so stupid' about what she did. Ms Carpio was deeply regretful of her actions and fully aware of the dangers associated with COVID-19.
3. Acknowledging that the consequences of Ms Carpio's behaviour would be a matter for the Tribunal, the psychologist said that Ms Carpio presented as a genuine young woman who takes her profession seriously and who has learnt a salutary lesson from the disciplinary measures taken. The psychologist expressed the view that the risk of Ms Carpio repeating the behaviour is extremely low.

1. Mr Grodzinski is aged in his early forties. He qualified in nursing in Victoria in December 2019 and obtained general registration as a nurse. Before then, from around 2018, he worked at Epping Gardens as a personal care attendant. After he obtained his registration, he worked some casual shifts at Epping Gardens but he did not work there beyond February 2020. At about that time he began a graduate year program at a public hospital in Melbourne. He has continued to work there.
2. As we have noted, there were supervision conditions imposed on Mr Grodzinski's registration in 2021. Mr Grodzinski complied with the conditions and the Board removed them within a matter of months.
3. Mr Stoller highlighted aspects of the supervision report made to the Board in early 2021 in connection with the conditions. The report noted that Mr Grodzinski was observed to have practised in a safe manner, complying with relevant policy and procedures. The report described his attitude as quiet and conscientious. Mr Grodzinski complied with his Education Support Plan. He also set his own learning objectives. He demonstrated a good understanding of his patients, including infection control requirements and clinical management. He had demonstrated honesty and a willingness to accept responsibility for his actions and he was adamant that nothing of this nature would happen again.
4. Mr Grodzinski was referred by his solicitor for assessment by a consultant forensic and adult psychiatrist. The psychiatrist reported in August 2023 in particular that Mr Grodzinski acknowledged his wrongdoing and said that in retrospect he would have conducted himself differently. Mr Grodzinski did not seek to minimise his conduct or shirk responsibility. The psychiatrist remarked that Mr Grodzinski would benefit from resolution of the matter and said that he impressed as a clinician who was keen to continue his career as a nurse.

1. The parties jointly proposed, first, that we reprimand Ms Anni, Ms Carpio and Mr Grodzinski; and, secondly, that we suspend their registration for the period of three months from the date of our order.
2. Ms Isobel and Mr Stoller made written and oral submissions in support of the parties' joint position. They referred to authorities regarding the principles and to some reasonably comparable cases. Mr Stoller highlighted important evidence particular to each respondent.
3. After we deliberated, we reprimanded Ms Anni, Ms Carpio and Mr Grodzinski and we suspended their registrations for the period of three months from the date of our order. We now give our reasons.

1. Ms Isobel cited Craig v Medical Practitioners Board [2001] SASC 169 (Craig). In that case, the Supreme Court of South Australia expressed the general principles in this way:

The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.[5]

1. Ms Isobel cited further authorities, including Medical Board of Australia and Pharmacy Board of Australia v Lee [2019] VCAT 311 (Lee) where VCAT summarised the law relating to the making of determinations as follows:

(a) the purpose of the imposition of determinations is to protect the public;

(b) 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;

(c) determinations should in no way be punitive;

(d) the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and by facilitation of rehabilitation on the part of the practitioner;

(e) 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;

(f) 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;

(g) 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;

(h) 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

(i) any form of official censure is of consequence. It has been observed by the Courts that a reprimand is a serious matter for a professional person and should not be considered a 'slap over the wrist'.[6]

1. Further in relation to the proposed reprimand, Mr Stoller cited Medical Board of Australia v Xie [2019] VCAT 1924 (Xie) where VCAT said:
   1. It is well understood that a reprimand is not a trivial determination. A sanction of this form does not trivialise a lapse in professional standards. For a professional person it has the potential for serious adverse implications. It tells the public, patients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured.
   2. We consider that a reprimand sufficiently addresses the need for general deterrence and meets the requirements of an appropriate determination in that it protects the community and the integrity of the profession. In our view the order to reprimand will flag to others that the behaviour is to be condemned.[7]

1. In contrast to Ms Anni, Ms Carpio and Mr Grodzinski were very new to the nursing profession. For every one of them, the conduct was very serious. We have taken into account, however, that they admitted their conduct. Further to that, they apologised to the Board and to those impacted by their conduct. We are satisfied that they were sincere about that.
2. We have also taken into account character references and other material provided in support of the respondents.
3. With regard to the need for specific deterrence, Ms Isobel referred us to remarks by the Court of Appeal in Stirling v Legal Services Commissioner [2013] VSCA 374 (Stirling) to the effect that a relevant consideration is the extent to which a practitioner displays insight into his or her wrongdoing such as to demonstrate an appreciation that what the practitioner did was wrong and must not happen again.[8]
4. Mr Stoller submitted that considerations of specific deterrence did not need to weigh heavily in our consideration of appropriate determinations. He submitted that each respondent had insight into the misconduct, as demonstrated by (among other things) their admissions, their acceptance of the characterisation of 'professional misconduct', and their agreement that substantial determinations were warranted.
5. Expressly to contextualise the conduct rather than seek to excuse it, Mr Stoller described the conduct as a single event and noted that there had been no prior or subsequent 'disciplinary blemish', such that the conduct was to be properly characterised as a one-off lapse of judgement.
6. It may be fair to describe the conduct as a 'one-off', but in our view it is too serious to be described as a lapse of judgement. Nevertheless, the whole disciplinary history is relevant and we do take that into account.
7. Mr Stoller submitted that, for Ms Anni, the punitive effect of suspension was magnified by her being the family's sole breadwinner. He said in effect that Ms Anni felt deep regret for her actions and that her understanding of the seriousness of her conduct had been informed not only by the loss of a close family member to COVID-19 but also by the death of individuals she had cared for at Epping Gardens.
8. We mention now that Ms Carpio and Mr Grodzinski are partners. Mr Stoller submitted that the punitive effect of suspension would be magnified for each of them because the other faced suspension too, with the result that the household would be without income for the suspension period.
9. Regarding Mr Grodzinski, we note that the material in relation to his compliance with the supervision conditions includes a reflective statement that he made in April 2021. Mr Grodzinski described there the professional opportunities he had to focus on infection prevention and ensuring public safety. He said that it had provided him with knowledge that would allow him to be a better nurse who could pass on his experience to others and to influence them through his actions to do the right thing to keep others safe. Among other things, Mr Grodzinski acknowledged that he had placed residents and staff at Epping Gardens at risk and said that he understood his duty to adhere to infection prevention standards not only at work but also in public.
10. The Board accepts that specific deterrence has a limited role to play in the present cases. Ms Isobel said that it was highly unlikely that similar conduct would ever be repeated by the respondents.
11. We agree that specific deterrence has a limited role to play in these cases. On the other hand, we consider that general deterrence has particular importance. By our determinations we intend to signal to members of the nursing profession that serious adverse consequences will follow conduct of the kind that the respondents engaged in. We intend to deter others from breaching applicable public health orders, or indeed from any conduct that would place vulnerable patients and others at risk, in the interests of maintaining professional standards and public confidence in the nursing profession and in the regulatory system.
12. We accept the Board's submission that, in addition to a reprimand, a period of time out of practice is required to achieve the objectives of determinations.
13. Mr Stoller noted that these matters have been hanging over the respondents' heads for a long time. He submitted that was relevant, not only because of the punitive effect it carried but also because in that time the respondents had demonstrated good conduct in their practice of the profession.[9]
14. Mr Stoller mentioned a matter of particular concern to the respondents - the real possibility that our determinations would attract renewed media interest in the cases. Whether or not that will eventuate, we accept that the possibility of it happening has further weighed on the respondents.
15. In coming to our conclusion that we should reprimand Ms Anni, Ms Carpio and Mr Grodzinski and suspended their registrations for three months, we also had regard to decisions of tribunals in other cases under the National Law. We now refer to those decisions.

1. Ms Isobel and Mr Stoller referred us to Nursing and Midwifery Board of Australia v Tut [2023] VCAT 494 (Tut), Dental Board of Australia v Nairn [2022] WASAT 86 (Nairn), and Health Care Complaints Commission v Parmenter [2023] NSWCATOD 136 (Parmenter).
2. Tut concerned a nurse who practised at two residential aged care facilities in regional Victoria in 2020 at a time when, because of the pandemic, nurses were required to limit their work to a single site. The nurse's conduct had the potential to put residents and other staff at increased risk of infection with COVID-19. The nurse had given insufficient information to one of the employers about her situation: she omitted to mention a particular (aged care) site where she was working for the other employer. This led to the first employer allowing her to continue to work at its site. The nurse continued to work for the employer after she had been told of a COVID-19 outbreak at the other employer's site and before she had tested for COVID-19 as instructed by the other employer. VCAT found that the nurse had engaged in professional misconduct. VCAT reprimanded her. The Board had earlier taken immediate action to suspend the nurse's registration and lifted the suspension after approximately two years. In the circumstances, VCAT did not suspend the nurse's registration but indicated that it would likely have done so had there not already been a suspension.
3. Nairn concerned a dentist in Western Australia. On two occasions in 2020, during the pandemic, when she flew into Perth from interstate, she was given a direction under State legislation to 'self-quarantine' at home. The dentist admitted to police that she had failed to comply on the second occasion but she falsely told them that she had complied on the first occasion. There were records including practice records that showed that the dentist had attended her practice and treated over 40 patients within the times she was required to stay home. The dentist was charged with eight offences of failing to comply with a direction under the legislation. She pleaded guilty and was convicted and sentenced to a seven-month partially suspended prison sentence. The State Administrative Tribunal of Western Australia found that the dentist engaged in professional misconduct. The Tribunal reprimanded the dentist and suspended her registration for seven months. The Tribunal imposed a 12-month mentoring condition on her registration, effective from the conclusion of the suspension period.
4. Parmenter concerned a nurse who was practising in regional New South Wales. In October 2021 the nurse was subject to a public health order that required her to be vaccinated against COVID-19 in order to continue working as a registered nurse. On two separate occasions the nurse presented at a pharmacy with a close relative for vaccinations. On each occasion she tampered with the syringes by substituting fluids for the vaccines. The nurse falsely told the pharmacists that she had just come from work. (She did that to explain why she was wearing her uniform and to create an opportunity to be left in private to change her clothes, at which time she tampered with the syringes). The nurse also gave false and misleading information to police and other investigators. The New South Wales Civil and Administrative Tribunal concluded that the nurse's conduct was reckless, premeditated, dishonest and deceptive. The Tribunal found that the nurse had engaged in professional misconduct. The Tribunal reprimanded her and suspended her registration for three months. The Tribunal further required her to attend for counselling at the conclusion of the suspension period.
5. While it is desirable for us to make determinations that are consistent with determinations in other cases, we exercise caution in making comparisons.[10]
6. Ms Isobel acknowledged that Tut, Nairn and Parmenter involved more serious conduct than the respondents' conduct. Mr Stoller emphasised that those cases involved repeated conduct and that, in addition, there was dishonesty on the part of the practitioners.
7. We agree that the cited cases were even more serious. We also accept the submission by Mr Stoller to the effect that, by agreeing to a three-month suspension and not arguing for a shorter period of suspension than the one ordered in Parmenter, Ms Anni, Ms Carpio and Mr Grodzinski demonstrated further that they genuinely accepted responsibility for their actions.

1. We have agreed with the parties that we should reprimand the respondents and suspend their registrations for the period of three months.

[1] VCAT made the relevant order under section 82(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 on 19 September 2022 on the basis that the referrals concern the same or related facts or circumstances.

[2] The outbreak at Epping Gardens was not the first outbreak at a residential aged care facility in Victoria. The Tribunal Book includes a media release issued by the former Department of Health and Human Services (coincidentally on 16 July 2020). The media release included information about cases linked to 'key outbreaks' at a number of residential aged care facilities, hospitals and other venues. The media release noted the stage 3 'stay at home' directions in force across Melbourne and Mitchell Shire, said by the Chief Health Officer to have been made necessary because of 'the sharp increase in cases'.

[3] As the three Notices of Allegations are in virtually the same form, we have substituted 'the respondent' for the nurses' names.

[4] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.

[7] At [58]-[59]. Footnotes omitted. Mr Stoller made a submission to the effect that a reprimand can be more serious where the case could attract media attention with the practitioner being named.

[9] Mr Stoller referred us to Nursing and Midwifery Board v Singh [2014] VCAT 1627 at [20] as to the first aspect and Stirling at [128] as to the second.

[10] See Medical Board of Australia v Bradshaw [2020] VCAT 585 at [109].