• The misappropriation, possession and administration of a Schedule 4 medication is a serious matter that is indicative of a total lack of respect for the legal and ethical requirements of the nursing profession. It involves a serious breach of the trust of the employer and a breach of the Board's Code of Conduct for Nurses.
• There is no evidence of the respondent demonstrating any remorse, contrition or insight into her failings, or taking any steps to address the underlying attitudes and character flaws.

Health practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional misconduct - Misappropriating Schedule 4 medication for self-administration, Breach of conditions on registration - Registration cancelled, disqualification from applying for registration for 3 years, reprimand

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA)

Health Practitioner Regulation National Law (South Australia) s 193

Rajagopalan v Medical Board of South Australia [1998] SASC 7142

Rajagopalan v Medical Board of South Australia [1997] SASC 6363

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [(1992) [1992] HCA 66; 67 ALJR 170

Ex parte Tziniolis, re Medical Practitioners Act (1966) 67 SR (NSW) 448

HCCC v Litchfield [1997] NSWSC 297, (1997) 41 NSWLR 630

Health Ombudsman v Field [2019] QCAT 243

Medical Board of Australia v Singh [2017] WASAT 33 (S)

Pursuant to s 60 of the South Australian Civil and Administration Tribunal Act 2013, the Tribunal prohibits the publication of the names of, or any material tending to identify, the witnesses who gave statements which are found at pages 13-33 of the Board's Materials (Exhibit C1).

1. This is a disciplinary proceeding against Ms Leanne Brown, an enrolled nurse.
2. The matter has been referred to the Tribunal under s 193 of the Health Practitioner Regulation National Law (South Australia) (the National Law)[1] by the Nursing and Midwifery Board of Australia (the Board).
3. The Board alleges that Ms Brown has behaved in a way that constitutes professional misconduct. It is alleged that she misappropriated a syringe containing Lignocaine gel (a schedule 4 drug) from her workplace in December 2018 and self-administered the Lignocaine gel. It is further alleged that the self-administration of the Lignocaine gel constituted a breach of conditions then applying to her registration as an enrolled nurse.
4. The Board took immediate action against Ms Brown on 31 January 2019 by suspending her registration. That suspension remains in force.

1. The matter was referred to the Tribunal on 25 September 2020.
2. Three directions hearings were held in the Tribunal, on 28 October 2020, 1 December 2020, and 20 January 2021, respectively. Ms Brown failed to attend or participate in any of these hearings. When telephoned by the presiding member during the hearings, she failed to answer. Ms Brown did contact the Registry, and the complainant's solicitor, on occasions, during this period, but failed to participate in the hearings.
3. Ms Brown was provided with copies of the complaint and the book of documents ("Board's Materials")[2] filed by the complainant. She has been sent formal "Directions" issued by the Tribunal after each Directions hearing. These have advised her of the seriousness of the matter, her right to legal advice or representation, and the desirability of her participation in the proceedings.
4. On 20 January 2021, the Tribunal directed that the matter be referred for compulsory conference at a time suitable to Ms Brown. The Tribunal issued a formal direction (sent to Ms Brown) which encouraged her attendance at the conference.
5. The Registry made a number of attempts (via various means) over a period of about two weeks to contact Ms Brown to arrange a suitable date and time for the conference. Ms Brown did not respond in any way to those attempts. When she had not responded by 17 February 2021, the Tribunal directed that the proposed conference be abandoned and that the matter be listed for hearing. The Tribunal issued a Direction (sent to Ms Brown) in which it set out the disciplinary action that might be taken if the complaint was found proved.
6. The full hearing of the matter was listed for 7 April 2021. A notice of hearing was sent to Ms Brown by express post and email on 18 February 2021.
7. Ms Brown failed to attend the full hearing on 7 April 2021. The Tribunal attempted to telephone her at the outset of the hearing, but she did not answer the call. The Tribunal has no doubt that she was aware of the hearing. She made no contact with the Tribunal.
8. In all these circumstances, the Tribunal determined that the matter should proceed in the absence of Ms Brown.

1. The Board relied on documentary evidence to support the allegations. It is for the Board to prove the alleged misconduct. Ms Brown bears no onus and does not have to prove anything. The standard of proof to be applied by the Tribunal is proof on the balance of probabilities, with due regard to the principles enunciated in Briginshaw v Briginshaw.[3] We note the seriousness of the allegations and the potential consequences for Ms Brown. We have regard to the presumption of innocence. Having regard to the relevant principles, we are comfortably satisfied of the following findings of fact.

1. Ms Brown is now 50 years of age. She first gained registration as an enrolled nurse on 18 September 2012.
2. On 4 December 2015 conditions were placed on her registration by way of immediate action due to concerns as to a possible drug use disorder.[4] Reports were provided by Dr Philip Crowley, an Addiction Medicine Specialist, dated 16 March 2016 and 20 June 2016. These reports suggested that Ms Brown suffered from a moderate to severe substance abuse disorder for the drug pregabalin. The conditions on Ms Brown's registration were varied on 8 July 2016, again by way of immediate action.[5]
3. On 26 May 2017 the Board considered the action to be taken as a result of investigations into concerns regarding Ms Brown.[6] Specifically, Ms Brown had been invited to make submissions as to two issues:

(1) Whether she had an impairment that detrimentally affected or was likely to detrimentally affect her capacity to practise the profession; and

(2) Whether she had misled the Board and was in breach of conditions imposed on her registration on 4 December 2015.

1. Ms Brown had not made any submissions. Based on admissions which had been made by Ms Brown at an interview on 22 February 2017 (after she had been confronted with evidence disproving some of her claims), the Board concluded that Ms Brown had submitted false and misleading information to the Board. It further concluded that Ms Brown had breached the conditions imposed on 4 December 2015[7]. The Board decided to issue a caution under s 178 of the National Law as follows:

A strong caution is issued to remind you of the inherent trust expected of you as a nurse by the profession and the fundamental expectation of providing only true and accurate information to the Board and its delegate and that a failure to do so in the future may seriously jeopardize your registration with the Board.[8]

1. The Board also acted under s 178 in respect of the identified health impairment. Having removed the conditions imposed by way of immediate action, it imposed new conditions under s 178.[9]
2. On 29 January 2018 the Board took immediate action to suspend Ms Brown's registration, based on information suggesting that she had relapsed in her substance use disorder and had been in breach of her conditions of registration[10]. The Board decided to refer the matter to a health panel. The registration of Ms Brown remained suspended until the decision of that panel.
3. The panel decision was dated 26 November 2018.[11] The panel had before it a report of Dr Crowley dated 22 May 2018.[12] He diagnosed Ms Brown as suffering from a severe pregabalin use disorder.[13] The panel accepted Dr Crowley's opinions.[14] The panel decided that Ms Brown could return to practice, with conditions imposed to manage her pregabalin use disorder.[15] The conditions were imposed from 7 December 2018.[16]
4. It was in this context that Ms Brown returned to work as an enrolled nurse at Ashford Hospital on 14 December 2018.
5. The above events constitute background circumstances to the matters that are before the Tribunal. They are relevant to the Tribunal's task in a limited way which we will outline in due course. They are not the matters referred to the Tribunal and they are not in themselves a basis for any action by this Tribunal. We are not dealing with any allegation concerning impairment. We are not dealing with earlier conduct of Ms Brown. We are to deal with the matters that are referred. We particularly guard against any inclination to reason that these earlier matters make it more likely that Ms Brown has acted improperly in relation to the matters referred. We will determine the referred matters on their own merits.

1. Ms Brown returned to work after her suspension on 14 December 2018. She worked shifts on 14, 15, 16 and 17 December. The shift on 17 December 2018 was from 3.30pm to 11.30pm.[17]
2. Ms Brown was involved in a single vehicle accident on her way home from work at about 12.16am on 18 December. The car she was driving veered left into a tree.[18] Police attended. A police officer observed a syringe filled with clear liquid on the front passenger seat of Ms Brown's vehicle. An ambulance officer expressed the view to police that it looked like a syringe of Lignocaine used in hospitals. When questioned by police about the Lignocaine, Ms Brown told police it was for her personal use. Police then attended the Hospital and spoke to a senior manager to enquire about the Lignocaine.[19]
3. Senior management of the Hospital met with Ms Brown on 18 December 2018 to discuss the matter. Ms Brown admitted that she had been involved in the accident. She stated that she had taken a syringe of Lignocaine from the Hospital Emergency Department as she had hives on her arm that were itchy.[20] Based upon this admission against interest, we find that Ms Brown did take the syringe of Lignocaine from the Hospital.
4. We further find that the Lignocaine was a schedule 4 medication pursuant to the Poisons Standard.[21] Its removal from the Hospital, possession and self-administration would be illegal in several respects, not to mention that it would be contrary to the Hospital policies.[22] Ms Brown ought to have been well aware of this.
5. Nonetheless, Ms Brown claimed to the senior management officers that a Clinical Nurse, who was working on the shift with her, had given permission for her to take the Lignocaine. She identified the Clinical Nurse, who we shall refer to as "CN". Ms Brown claimed that the Lignocaine had been left over from a patient who had been in the Emergency Department.[23]
6. The Tribunal has before it a statement from the Clinical Nurse, CN.[24] She completely refutes the claim as to her alleged involvement in the taking of the Lignocaine. She did not know that Ms Brown had hives and had no discussion with her about Lignocaine. She did not give permission for Ms Brown to take any Lignocaine. The claimed conversation simply did not occur.
7. We note that CN only worked on the same shift as Ms Brown on 15 December 2018. CN notes that no patient required Lignocaine that day and thus there was no Lignocaine left over from any patient. She also states that it would be an "enormous infection control risk" to use left-over Lignocaine.
8. It is possible that Ms Brown took the Lignocaine on 15 December and it was still on the passenger seat of her vehicle on 18 December, but we consider that unlikely. We consider it more likely that the Lignocaine was taken on 17 December, a day when CN was not working.
9. Counsel for the complainant very properly advised the Tribunal that Ms Brown had stated to him in a telephone conversation that she disputed the statement of CN. However, Ms Brown has elected not to attend the hearing and therefore has not challenged the statement in an appropriate way. We consider the evidence contained in CN's statement to be credible and we accept her evidence that she had no part in the taking of the Lignocaine. We find that no credence can be given to the claim that CN gave "permission" for the taking of the Lignocaine. We reject entirely the claims made by Ms Brown in that regard.
10. We make it clear that the taking of the Lignocaine was unlawful and contrary to Hospital policy and no clinical nurse could validly have authorised such taking. CN was clearly aware of that fact and appalled by the suggestion that she would purport to do so.[25] Ms Brown ought also to have been aware of that fact.
11. As to the subsequent administration of the Lignocaine, Ms Brown advised a treating practitioner on 2 February 2019 that she "had used it on an itchy spot/bite".[26]
12. The administration of the Lignocaine was a breach of the conditions imposed on her registration on 7 December 2018 (just 10 days earlier). Condition 4 stated:

The practitioner must only take substances prescribed, approved or administered by the treating practitioner(s).

For the purposes of this condition, substance is defined as any illicit substance as well as any pharmacist only, prescription only, and any controlled drug medication as contained in schedules 3, 4, or 8 in the Standard for the Uniform Scheduling of Medications and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp.

1. Ms Brown was dismissed from the Hospital because of her conduct. On 31 January 2019 the Board suspended her registration by way of immediate action. She remains suspended.

1. The misappropriation, possession and administration of a Schedule 4 medication is a serious matter. It is indicative of a total lack of respect for the legal and ethical requirements of the nursing profession. It involves a serious breach of the trust of the employer. It contravenes the Board's "Code of Conduct for Nurses"[27] and the International Council of Nurses' "Code of Ethics for Nurses".[28] The Board's Code succinctly states:

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. (not relevant)

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 ...[29]

1. The unlawful and unethical conduct of Ms Brown occurred after the Board had issued a formal caution to her in May 2017 to remind her of "the inherent trust expected of you as a nurse by the profession". The conduct occurred shortly after the Health Panel had given her an opportunity to return to practice. It constituted a breach of the conditions recently imposed by that Panel. As the New South Wales Tribunal stated in Health Care Complaints Commission v Townsend [2014] NSWCATOD 65 at [36]:

The importance of complying with practice conditions in the public interest and as protective measures has been emphasised on many occasions. See, for example, Prakash v HCCC [2006] NSWCA 153, especially at [74], "When conditions are imposed, as they were here, for restoration to practice, those conditions must be scrupulously observed..." per Santow JA.

1. It is true that the nature of the breach on this occasion was somewhat removed from the concerns that had led to the imposition of the conditions, but the breach and the unlawfulness of the conduct nonetheless reflect seriously and adversely on Ms Brown's general attitude to the legal and ethical requirements inherent in the role of a registered nurse.
2. We consider it appropriate to deal with the conduct in its totality. We have no doubt that it constitutes professional misconduct. The conduct falls substantially short of the standard of conduct to be reasonably expected of an enrolled nurse of Ms Brown's training and experience. It is also conduct which was inconsistent with Ms Brown being a fit and proper person to be registered.

1. The conduct of Ms Brown in December 2018 was inconsistent with the qualities of trustworthiness and integrity required of a registered person. The conduct impugns Ms Brown's fitness to be registered. There is no evidence that the conduct was "out of character". The attempt to implicate the Clinical Nurse, CN, in the wrongdoing (which we have rejected) reflects poorly on Ms Brown.
2. There is no evidence of Ms Brown demonstrating any remorse or contrition. There is no evidence of her demonstrating insight into her failings or taking any steps to address the underlying attitudes and character flaws.[30] Over two years have passed since the relevant conduct and Ms Brown has shown little or no apparent interest in addressing these issues within the professional context. Ms Brown's failure to participate in the referral process tends to demonstrate a lack of understanding of, or commitment to, the responsibilities of a registered person.[31] There is no evidence of Ms Brown's future commitment to the lawful, ethical, and honest practice of the profession of nursing.
3. We cannot be satisfied of Ms Brown's present fitness to be registered. We have no basis to predict when, if at all, that position may change. The appropriate disciplinary action is to cancel Ms Brown's registration.[32]
4. The Board submitted that there should also be a reprimand and a period of disqualification. We agree.
5. We note that Ms Brown's registration has already been suspended since 31 January 2019. We take that period of suspension into account. However, we consider that a period of disqualification for a further three years is appropriate. Such period will:
   • Bring home to Ms Brown and other practitioners the seriousness of such conduct and the fact that such unlawful conduct will not be tolerated.
   • Reassure the public that standards within the profession will be maintained and that only fit and proper persons will be registered; and
   • Allow Ms Brown sufficient time to address the character flaws inherent in her conduct and provide evidence of her fitness to be registered.
6. There is no evidence before us that would suggest that Ms Brown will be able to demonstrate fitness and propriety after the expiration of three years. She will not be automatically reinstated after that time. That is merely the time after which she will be entitled to make an application to the Board. Ms Brown will not be registered unless and until she can demonstrate to the Board that she is a fit and proper person in all respects to be registered.
7. It is also appropriate to impose a reprimand.
8. Finally, Ms Brown must pay the costs of the Board in respect of this proceeding before the Tribunal.
9. In summary,
   • The Tribunal decides that Ms Brown has behaved in a way that constitutes professional misconduct.
   • Ms Brown is reprimanded.
   • The registration of Ms Brown as an enrolled nurse is cancelled.
   • Ms Brown is disqualified from applying for registration as a registered health practitioner for a period of three years from the date of this order.
   • Ms Brown is to pay the Board's costs of the proceeding before the Tribunal.
10. Pursuant to s 60 of the SACAT Act 2013, the Tribunal prohibits the publication of the names of, or any material tending to identify, the witnesses who gave statements which are found at pages 13 - 33 of the Board's Materials (Exhibit C1).

[1] The National Law is to be found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA).

[3] Rajagopalan v Medical Board of South Australia [1998] SASC 7142, affirming Debelle J in Rajagopalan v Medical Board of South Australia [1997] SASC 6363; Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336 at 362-363; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ at 170-171.

[30] Ex parte Tziniolis, re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; HCCC v Litchfield [1997] NSWSC 297, (1997) 41 NSWLR 630.

[31] Health Ombudsman v Field [2019] QCAT 243 at [51].

[32] Medical Board of Australia v Singh [2017 WASAT 33 (S) at {33] - [36].