FINDINGS IN RELATION TO NOTICE OF ALLEGATIONS DATED 27 APRIL 2015

1. The matters admitted by Mr Chalmers (Allegation 1) constitute unprofessional conduct within the meaning of s.5(c) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (the National Law).

1. Each of the matters admitted by Mr Chalmers (Allegations 2.2.1, 2.2.2, 2.2.4 and 2.2.5) constitute professional misconduct within the meaning of s.5(c) of the National Law.

1. Pursuant to s.196(2)(e) of the National Law the Tribunal cancels Mr Chalmers' registration and pursuant to s.196(4) of the National Law the Tribunal disqualifies Mr Chalmers from applying for registration as a registered nurse for a further two years.

Judge S Davis Ms Ros Pearson Ms Marietta Bylhouwer

1. David Chalmers is 52 years old. He was initially registered as a nurse on 12 June 2003.
2. On 4 November 2013 David Chalmers' registration was suspended pursuant to s.156 of the Health Practitioner Regulation National Law (Victoria) Act 2009 ('The National Law').
3. On 6 July 2012 David Chalmers was convicted of indecent assault contrary to s.39 of the Crimes Act 1958 (Vic), at the Dandenong Magistrates' Court. The charges related to conduct on 2 June 2011, whilst David Chalmers was working as a nurse at a hospital. David Chalmers made a number of inappropriate advances toward a student nurse. The student nurse reported David Chalmers' behaviour to the Police and the Australian Health Practitioner Regulation Agency ('AHPRA') was notified of the allegations made against David Chalmers.
4. In a signed statement to AHPRA, dated 6 October 2011, David Chalmers denied the allegations, and alleged that he was in fact the victim of the student nurse's advances. Upon being charged with indecent assault, David Chalmers did not notify the Nursing and Midwifery Board ('the Board') of the charges, contrary to the National Law.
5. Prior to the Magistrates Court hearing on 6 July 2012, David Chalmers attended two psychological assessments in which he denied the allegations, and then attended a third assessment on 2 July 2012 in which he admitted the allegations and explained his conduct. Subsequently, on 6 July 2012 David Chalmers pleaded guilty at the Magistrates' Court to a charge of indecent assault. During the plea hearing, David Chalmers tendered and relied upon the most recent psychological report in which he admitted the allegations and explained his conduct. David Chalmers was convicted and sentenced to an adjourned undertaking for 12 months on the condition of good behaviour and continued counselling, and also a fine of $1500 to the Court fund.
6. After David Chalmers plea and conviction at the Magistrates' Court, AHPRA resumed its investigation. In two telephone conversations with AHPRA investigators, on 18 March 2013 and 16 January 2015, David Chalmers denied the allegations, to which he had pleaded guilty. He submitted to AHPRA the psychological reports in which he had initially denied the allegations, and did not provide AHPRA with the report in which he admitted the allegations and upon which he relied at the plea hearing. David Chalmers also said to a psychologist engaged by the Board that he denied the allegations, that the nursing student had approached him sexually, and that he had agreed to a guilty plea to avoid going to prison and being of the Sex Offenders Registry. David Chalmers had attended this psychologist engaged by the Board on 3 October 2013.
7. The Immediate Action Committee of the Board suspended David Chalmers' nursing registration on 4 November 2013, pursuant to s.156 of the National Law. On 20 February 2014, pursuant to s.193(1)(a)(i) of the National Law the Applicant referred the matter to the Victorian Civil and Administrative Tribunal for determination.

1. The parties agreed upon facts and proposed findings pursuant to s.196(1)(b) of the National Law. The agreed facts are outlined above at 1-7 (of the decision). David Chalmers admitted the following allegations:
   1. On 6 July 2012, he was convicted on a charge of indecent assault contrary to s.39 of the Crimes Act 1958 (Vic), an offence whose nature may affect his suitability to continue to practise the profession of nursing by reference to the definition of unprofessional conduct in s.5(c) of the National Law; and
   2. Between 2 June 2011 and 8 October 2013, David Chalmers:
      1. Behaved in a way that constitutes professional misconduct within the meaning of s.5(c) of the National Law in that he engaged in conduct that is inconsistent with David Chalmers being a fit and proper person to hold registration in the profession in that he:
         1. Committed indecent assault on a professional colleague on 2 June 2011 (allegation 2.2.1);
         2. Failed to notify the Board that he had been charged with relevant criminal offences as required by the National Law (allegation 2.2.2);
         3. Made false statements to AHPRA in its investigation into his professional conduct and, in so doing, attempted to mislead the Board (allegation 2.2.4); and
         4. Presented misleading and/or incomplete reports from health professionals to AHPRA in its investigation into his professional conduct and, in so doing, attempted to mislead the Board about his conduct (allegation 2.2.5).

1. The parties jointly sought, and the Tribunal considered it appropriate to make, the following findings:
   • (a) That the matters admitted by David Chalmers (allegation 1) constitute unprofessional conduct within the meaning of s.5(c) of the National Law.
   • (b) That each of the matters admitted by David Chalmers (allegations 2.2.1, 2.2.2, 2.2.4 and 2.2.5) constitute professional misconduct within the meaning of s.5(c) of the National Law.
2. In making the first finding, the Tribunal considered that the conviction constitutes unprofessional conduct under the National Law, as the nature of the offence for which David Chalmers was convicted would affect David Chalmers' suitability to continue to practice nursing. In making the second finding, the Tribunal was satisfied that the conduct admitted constitutes professional misconduct as the conduct is inconsistent with David Chalmers holding a nursing registration, and the conduct demonstrates a failure to comply with his obligations to the Board and/or AHPRA and to be candid in interactions with the Board and/or AHPRA. His conduct breached the trust and confidence between the Board and its registrants and undermines the ability of the Board to determine whether its registrants are fit and proper to practise, which in turn goes toward upholding the standards of the profession and protecting the public.

1. Pursuant to s.196(2) of the National Law, the parties jointly submitted that the appropriate determination was that of cancellation of David Chalmers' registration and disqualification from applying for registration as a registered nurse for a further two years.
2. In imposing a determination, the Tribunal's primary concern is with the protection of the public and with the maintenance of the standards and integrity of the nursing profession in the eyes of the public. While the Tribunal's determinations are not punitive in nature, it is important that its determinations achieve the primary objective of protecting the public by deterring others from similar conduct, and the practitioner from any further such conduct. Of course it is also appropriate to take into account any cooperation of a practitioner with AHPRA and any relevant personal factors.
3. In the circumstances of this case, the Tribunal is satisfied that the jointly proposed determinations will properly discharge the responsibility of the Tribunal to uphold the standards of the nursing profession and protect the public. The cancellation of David Chalmers' registration, together with a two year disqualification from reapplying for registration, sends a clear message of unsuitability to practice.[3]The Tribunal considers that such a disposition will serve the need for general and specific deterrence, and will ensure the protection of the public.

Judge S Davis Ms Ros Pearson Ms Marietta Bylhouwer

[1] Pursuant to section 119 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal corrected references to the respondent's name to "David Chalmers" in the Tribunal's Reasons.

[2] Pursuant to section 119 of the Victorian Civil and Administrative Tribunal Act 1998, on the application of the parties and with the approval of the Presiding Member, the Tribunal corrected the original determination to reflect certain points in the agreed findings as outlined in the Agreed Statement of Facts and proposed Findings and Determinations at the hearing of this matter.

[3] Honey v Medical Practitioners Board of Victoria [2007] VCAT 527 at [42]- [43].