1 In relation to each allegation, we find that Mr Clarke-Wakeling engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in s. 5 of the Health Practitioner Regulation National Law (Victoria) Act 2009, ("the National Law)."

1 Under section 196(2) of the National Law_,_ we will:

(a) reprimand Mr Clarke-Wakeling

(b) impose conditions on Mr Clarke-Wakeling's registration pursuant to section 196(2)(b) of the National Law in the terms set out in annexure one

2 We will impose a review period on the conditions of 12 months, pursuant to section 196(3) of the National Law.

1 Some years ago, Mr Clarke-Wakeling who is a registered nurse, developed a major depressive illness.

2 With his mental health deteriorating he made a serious attempt to take his own life. In the lead-up to, and for the purpose of his attempt, Mr Clarke-Wakeling misappropriated medications from his employer and altered the relevant records to account for the misappropriated medications.

3 He has now begun the long journey to recovery. He has sought and received treatment and is currently psychologically well.

4 It has not been an easy road. His marriage has not survived. He has faced criminal proceedings. He has had his registration to practice as a nurse suspended for a considerable period - some 25 months.

5 Mr Clarke-Wakeling now faces this Tribunal. The matter currently before us is a referral from the Board under section 193(1)(a) of the National Law.

6 We conducted a hearing on 18 March 2022 at which time we received very helpful submissions from each of the parties who had jointly prepared an Agreed Statement of Facts, Findings and Determinations ("ASOFFD").

7 The parties were in agreement about the facts and the determinations as set out in the ASOFFD but differed in their submissions about the characterisation of the conduct.

8 We will address each of these matters in turn, turning first to a discussion of the factual matrix before us.

**1. Background

1.1 Mark Clarke-Wakeling (Mr Clarke-Wakeling) obtained general registration as a registered nurse on 20 December 2011. He subsequently began practising as a registered nurse in the Intensive Care Unit of the Epworth Private Hospital, Richmond (Epworth).

1.2 The Nursing and Midwifery Board of Australia (Board) was established and replaced the previous state and territory boards (or participating jurisdictions and co-regulatory jurisdictions) on 1 July 2010. Accordingly, Mr Clarke-Wakeling has been subject to the Health Practitioner Regulation National Law (National Law) since that time.

2. Notification regarding Mr Clarke-Wakeling's professional conduct

2.1 On 28 August 2018, the Board received a notification. The notification related to Mr Clarke-Wakeling's conduct in relation to the misappropriation of medication from Epworth.

3. Immediate action

3.1 On 18 September 2018, an Immediate Action Committee (IAC) of the Board proposed to take immediate action under section 156(1)(a) of the National Law in respect of Mr Clarke-Wakeling's registration.

3.2 On 1 October 2018, by letter from his legal representatives, Gordon Legal, Mr Clarke-Wakeling provided a written submission to the proposed immediate action, dated 21 September 2018. In the letter, Mr Clarke-Wakeling, among other things, stated that:

**

(a) he recognises he had depression for some time, and had not utilised supports effectively, although he had a mental health care plan, saw a psychologist and was prescribed a very low dose of Sertraline;

(b) a major contribution to his depression was the unsuccessful fertility treatments and IVF that he and his wife had tried for two years, after failing to conceive for 10 years;

(c) when his wife decided she wanted to cease trying to conceive, his depression worsened and he made a plan to suicide in the coming months and started to misappropriate and stockpile drugs of dependence for this purpose;

(d) on a number of occasions he also used the misappropriated drugs of dependence at home, without the knowledge of his wife, to gain relief from feelings of depression;

(e) to access the drugs he would record fewer vials than actually present in the drugs of dependence count book (drugs of dependence register) so the count would match the recorded number, no drugs were diverted from patients so their care was unaffected;

(f) he felt guilty for what he was doing, and knew it was the wrong thing to do;

(g) he never used these drugs at work and was not under the influence of drugs whilst at work;

(h) on 24 August 2018 another nurse noticed the drugs of dependence count book (drugs of dependence register) had been altered and drugs were unaccounted for;

(i) he decided at this point to go ahead with his plan to suicide;

(j) the intensive care unit was in a panic about a potential police investigation so to minimise stress on the unit he sent a message to his Nurse Unit Manager admitting to taking the medication;

(k) he went to his car which was parked at a train station, taking the stockpiled medication, potassium chloride, syringes, needles and a scalpel;

(l) he sent a further text message to his Nurse Unit Manager saying where he was so a member of the public would not have to find him deceased, and also sent a text message to his wife;

(m) he injected all the morphine, fentanyl and oxycodone in his possession together with the potassium, and severed the left and right sides of his neck and wrist and right groin with the scalpel;

(n) he woke unconscious at the Royal Melbourne Hospital, having been found by police, and after three nights was admitted to Wyndham Private Clinic;

(o) he has reflected on why the situation arose and believed he had not taken his depression seriously enough, and now with the help of professionals and his wife was developing better coping strategies; and

(p) stated that since the events in (m) above, he was receiving regular psychological assistance, taking appropriate medication prescribed by his general practitioner, was engaged with the Nursing and Midwifery Health Program at St Vincent's and was awaiting a referral to a psychiatrist.

3.3 On 3 October 2018, the IAC decided to take immediate action, pursuant to section 156(1)(a) of the National Law, in the form of suspending Mr Clarke-Wakeling's registration.

3.4 On 12 November 2020, the IAC decided to end the period of immediate action pursuant to section 159(2)(b) of the National Law.

4. Investigation and Health Assessment

4.1 On 3 October 2018, the Board determined to commence an investigation into Mr Clarke-Wakeling's conduct with respect to the notification, pursuant to section 160(1)(a) of the National Law. At this time, the Board also determined to require Mr Clarke-Wakeling to undergo a health assessment pursuant to section 169 of the National Law.

4.2 On 15 November 2018, by letter from Gordon Legal, Mr Clarke-Wakeling confirmed the contents of his written submission, dated 21 September 2018, and provided a number of character references in support.

4.3 On 11 December 2018, the Board engaged Dr Shalini Arunogiri to conduct a health assessment in relation to Mr Clarke-Wakeling.

4.4 On 14 January 2019, Dr Arunogiri provided a written report in relation to Mr Clarke-Wakeling's health assessment. The report states (in part):

(a) Mr Clarke-Waking presents in early recovery from a major depressive episode, on the background of a long-term deterioration of his mental state due to a range of factors (unsuccessful IVF and attempts to conceive a child; impact of this on his relationship with his wife; demanding role in the workplace and his personality structure and need to perform well in this setting);

(b) his opioid use and misappropriation of opioids from the workplace occurred in the context of his mood disorder, being opportunistically taking opioids over 3-4 weeks prior to his suicide attempt when his judgement was impaired by severe depression;

(c) there is no history provided by his treatment providers or employers to suggest impairment in the workplace, nor any concern about an impact on patient care of safety;

(d) there is no information to suggest the presence of an opioid (or other substance use) disorder on the basis of the history he provided, information from treatment providers or biological testing;

(e) he subsequently made a substantial recovery following engagement with a range of supports, including with a clinical psychologist;

(f) he is now future-focused, and does not identify with any thoughts of self-harm or suicide;

(g) it is recommended that Mr Clarke-Wakeling engage in mental health treatment for at least 12 months, and when he resumes practice that he undergo a brief period of urinalysis and periodic supervision; and

(h) Dr Arunogiri did not find that Mr Clarke-Wakeling has an impairment affecting his capacity to practise as a registered nurse.

4.5 On 11 March 2020, the Board wrote to Mr Clarke-Wakeling's legal representatives and requested his response in relation to the conduct and health impairment issues under investigation.

4.6 On 27 March 2020, by letter from Gordon Legal, Mr Clarke-Wakeling, among other things, stated:

(a) that he had admitted the facts of misappropriation of drugs of dependence before a Judicial Registrar of the Magistrates' Court of Victoria; and

(b) that while he was continuing to consult with Dr Tamsin Franklin and was prescribed medication to manage his condition, his depressive symptoms were well managed and stabilised.

5. Decision to refer to the Tribunal

5.1 On 21 January 2021, the Board formed a reasonable belief that Mr Clarke-Wakeling had behaved in a way that constitutes professional misconduct and decided to refer the matter to the Victorian Civil and Administrative Tribunal, pursuant to section 193(1)(a)(i) of the National Law.

5.2 The allegations contained in the Notice of Allegations, filed by the Board on 31 March 2021, are as follows:

1. That Mr Clarke-Wakeling engaged in:

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

and/or

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

in that, between 5 and 24 August 2018, Mr Clarke-Wakeling engaged in conduct that falls substantially below the standard reasonably expected of a registered nurse, in that he:

(i) misappropriated medications from his employer, Epworth Private Hospital (Hospital) for self-administration; and/or

(ii) altered the drugs of dependence book at the Hospital to account for the medications that were misappropriated.

PARTICULARS

The particulars are as follows:

(i) at all relevant times, Mr Clarke-Wakeling was a registered nurse;

(ii) at all relevant times, Mr Clarke-Wakeling was employed as a registered nurse working in the Intensive Care Unit of the Hospital;

(iii) between approximately 5 August 2018 and 24 August 2018, Mr Clarke-Wakeling removed medications from the drugs of dependence cupboard at the Hospital for personal use:

(A) on or about 5 August 2018, Mr Clarke-Wakeling removed one unit of oxycodone 50mg and one unit of fentanyl 500mcg;

(B) on or about 12 August 2018, Mr Clarke-Wakeling removed one unit of morphine 30mg;

(C) on or about 13 August 2018, Mr Clarke-Wakeling removed one unit of morphine 30mg;

(D) on or about 17 August 2018, Mr Clarke-Wakeling removed one unit of morphine 30mg, one unit of fentanyl 500mcg and one unit of oxycodone 50mg;

(E) on or about 19 August 2018, Mr Clarke-Wakeling removed two units of morphine 30mg, two units of oxycodone 50mg and one unit of fentanyl 500mcg;

(F) on or about 21 August 2018, Mr Clarke-Wakeling removed two units of fentanyl 500mcg, two units of morphine 30mg and one unit of oxycodone 50mg;

(G) on or about 22 August 2018, Mr Clarke-Wakeling removed two units of fentanyl 500mcg and two units of oxycodone 50mg;

(H) on or about 23 August 2018, Mr Clarke-Wakeling removed two units of morphine 30mg; and

(I) on or about 24 August 2018, Mr Clarke-Wakeling removed one unit of fentanyl 500mcg;

(iv) between approximately 5 August 2018 and 24 August 2018, Mr Clarke-Wakeling altered the drugs of dependency book at the Hospital to account for the drugs that he had taken as set out in paragraph (iii) above as follows:

(v) On 31 October 2018, Mr Clarke-Wakeling appeared in the Magistrates' Court of Victoria in respect of:

(A) one charge of possession of drugs of dependence, in contravention of section 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic); and

(B) one charge of theft of drugs of dependence, in contravention of section 74 of the Crimes Act 1958 (Vic).

(vi) On 31 October 2018, Mr Clarke-Wakeling signed a diversion plan in respect of the charges set out in paragraph (v) above.

(vii) On 21 January 2019, upon completion of the diversion plan, the charges set out in paragraph (v) above were discharged.

(viii) The International Council of Nurses Code of ethics for nurses (in effect from 1 March 2018) (Code of ethics): provides that:

(A) 1. Nurses and people

The nurse's primary professional responsibility is to people requiring nursing care.

...

The nurse demonstrates professional values such as respectfulness, responsiveness, compassion, trustworthiness and integrity;

(B) 2. Nurses and practice

The nurse carries personal responsibility and accountability for nursing practice, and for maintaining competence by continual learning.

...

The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance its image and public confidence;

(ix) The Board's Code of conduct for nurses (in effect from 1 March 2018) (Code of conduct) provides that:

(A) 1. Legal compliance

Nurses respect and adhere to their professional obligations under the National Law, and abide by relevant laws;

(B) 4. Professional behaviour

Nurses embody integrity, honesty, respect and compassion;

(C) 7. Health and wellbeing

Nurses promote health and wellbeing for people and their families, colleagues, the broader community and themselves and in a way that addresses health inequality;

(D) 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

...

1. 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;

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. act to reduce the effect of fatigue and stress on their health, and on their ability to provide safe care; and

(x) Mr Clarke-Wakeling's conduct was in breach of the Code of ethics and Code of conduct.

6. Admissions of fact

6.1 Mr Clarke-Wakeling admits the matters set out in particulars (i) to (x) of allegation 1 of the Notice of Allegations, set out in paragraph 5.2 above.

9 We are comfortably satisfied in accordance with the principles set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that Mr Clarke-Wakeling engaged in the conduct alleged in the Notice of Allegation and set out by the parties in the Agreed Statement.

10 This is a tragic and unique case in which Mr Clarke-Wakeling has made full and frank admissions about his conduct.

11 We fully accept that at the time of misappropriating and self-administering the medication, Mr Clarke-Wakeling was in the midst of a major depressive episode and had other significant stressors in his life. We accept that the other causative triggers set out in the Agreed Statement also contributed to his conduct. We accept that Mr Clarke-Wakeling misappropriated the medications with the intent to stockpile them and use them in his suicide attempt.

12 We accept that he did not take medications intended for patients, such that their care was unaffected by his conduct.

13 We accept that Mr Clarke-Wakeling sought treatment and support in relation to his mental health and that he continues to seek appropriate treatment and support. He has always shown remorse for his conduct. He has shown through his various engagements with the Board, insight into his mental health history.

7. Submissions on characterisation of conduct under the National Law

7.1 The parties jointly submit that Mr Clarke-Wakeling's conduct, as set out in the Notice of Allegations, constitutes professional misconduct within the meaning of (a) of the definition of the phrase in section 5 of the National Law.

7.2 The Board will submit that Mr Clarke-Wakeling's conduct also constitutes professional misconduct within the meaning of (c) of the definition of the phrase in section 5 of the National Law. Mr Clarke-Wakeling does not agree with this submission.

7.3 Mr Clarke-Wakeling will submit that Mr Clarke-Wakeling's conduct also constitutes professional misconduct within the meaning of (b) of the definition of the phrase in section 5 of the National Law. The Board does not agree with this submission.

14 The parties jointly invited us to find, pursuant to section 196(1)(b) of the National Law, that Mr Clarke-Wakeling's conduct constitutes professional misconduct within the meaning of paragraph (a) of the definition contained in section 5 of the National Law, being:

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

15 Mr Clarke-Wakeling made full and frank admissions to his conduct. He immediately confessed to his workplace when the thefts were discovered. He made comprehensive admissions during the IAC process. He has assumed full responsibility for his conduct in all conversations with treating and/or assessing practitioners.

16 It comes as no surprise then that Mr Clarke-Wakeling acknowledges and accepts that his conduct constitutes professional misconduct within the meaning of paragraph (a) of the definition contained in section 5 of the National Law. He fully accepts that his conduct fell well short of the standards expected of him by the public and his peers and was inconsistent with the Code of Conduct for Nurses and other instruments.

17 We agree that Mr Clarke-Wakeling's conduct was demonstrably substantially below the standard reasonably expected of a registered nurse.

18 Theft from an employer is always serious. It is criminal conduct. Mr Clarke-Wakeling was in a position of trust, both in relation to his employer and in relation to his patients and the public. He abused that trust. He misused his position by stealing medications from his employer. He compounded the deception by altering the hospital's records to try to avoid detection.

19 Mr Clarke-Wakeling further submitted that his conduct could constitute professional misconduct within the meaning of subparagraph (b) of the definition of the phrase in section 5 of the National Law which reads as follows:

1. 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.

20 The Board does not support this submission, contending that although Mr Clarke-Wakeling's conduct was repetitious, occurring on nine occasions over a period of 20 days, it might also be viewed as one course of conduct reflected in a single allegation.

21 We agree with the Board that this is an appropriate way of categorising the conduct.

22 More importantly we also agree with the Board that each instance of theft and each alteration of the drug books by Mr Clarke-Wakeling in the course of his employment, in and of itself would constitute professional misconduct under paragraph (a). We do not consider such conduct can or should be contextualised as unprofessional conduct. We agree with the submissions of the Board that such conduct, even occurring on one occasion is better characterised as falling substantially below the standards reasonably expected of a registered health practitioner of an equivalent level of training or experience. It is not the cumulative impact of multiple transgressions that leads to the categorisation of professional misconduct.

23 The fact that there was repetition of the conduct on nine occasions over a period of approximately 20 days between 5 August 2018 and 24 August 2018, contextualises the professional misconduct. It was not for example one-off spontaneous misconduct.

24 Finally, the Board submitted that Mr Clarke-Wakeling's conduct also constitutes professional misconduct within the meaning of paragraph (c) of the definition of the phrase in section 5 of the National Law, being:

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.

25 In making its submission the Board again emphasised the seriousness of the conduct; the fact that the conduct was not isolated; its connection to Mr Clarke-Wakeling's practice as a nurse; the reputational risk to the profession; the breach of the expectations of the community and the demonstrable breach of the standards of the profession.

27 What is resisted by Mr Clarke-Wakeling is the categorisation of his conduct as being conduct inconsistent with him being a fit and proper person to hold registration in the profession of nursing.

28 Mr Clarke-Wakeling recognised that he was not fit to practise at the time he engaged in the conduct but expressed his hope that he would one day be deemed fit by his treating practitioners and able to return to practice. He has in fact successfully managed his graduated return to nursing after his suspension was lifted and is to be commended for doing so. He contends however, that in all of the circumstances, his conduct was not inconsistent with him being a fit and proper person to hold registration.

29 It is common ground between the parties that Mr Clarke-Wakeling is currently a fit and proper person to hold registration.

30 There is no suggestion made by the Board that he should now be deprived of his ability to practice in his chosen profession. There is no suggestion that his registration should, after such commendable rehabilitation, be cancelled.

31 One may then ask the rhetorical question - would it be incongruous to find that Mr Clarke-Wakeling's conduct is inconsistent with him being a fit and proper person to hold registration in the profession and then cheerfully put him forward in the next breath as a person who is fit and proper to hold registration.

33 This is because the Tribunal must take great care not to confuse the question of characterisation of the conduct before it, with the determinations thereafter available to it.

34 We consider that the conduct of stealing from an employer and falsification of records is, on any analysis, conduct which is inconsistent with the perpetrator being a fit and proper person to hold registration in the profession. Ultimately it matters not for the purpose of characterisation of the conduct, that there were other factors which would mitigate or put that conduct in context. That is a matter for the Tribunal to take into account when considering its determinations.

35 We acknowledge that there is something which jars about categorising the conduct of an unwell practitioner as being conduct which is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

36 We were very sympathetic to the line of reasoning adopted in Nursing and Midwifery Board of Australia v DDN [2019] VCAT 2038, the facts of which were similar to the facts in this case.

52. Importantly, we had the benefit of hearing directly from the respondent. She impressed us as a witness. Her responses to questions were honest and insightful. She is clearly devastated and ashamed at her conduct which has led her to be the subject of these proceedings and has, since that time, put measures in place to ensure she has the required continued psychiatric care in order to manage and maintain her mental health The way she presented before us supported our view that her behaviour at the time of the conduct was because she was unwell and was not behaving as someone with a 'sound mind'. To us, her conduct reflected her mental health at the time, such that whilst she was not at the time fit to have been engaged in practise, we would not conclude she was not a fit and proper person to be registered.

53. We also had regard to the findings of the Magistrates Court in the related criminal proceedings which we considered reflected and supported our view of the impact the respondent's mental health had on her culpability. Significantly, the Court dealt with the charges by way of a Diversion Plan, with an undertaking to be of good behaviour and for the respondent to continue to undergo therapy. This, in our opinion, is an indication that, for the purposes of sentencing and penalty, the criminal court considered the respondent's moral culpability to be reduced given the circumstances of the offending.

38 We too could arguably find on the material before us that Mr Clarke-Wakelings's behaviour at the time of his conduct occurred because he was unwell and was not behaving as someone with a "sound mind."

39 We could go further and point to the many strong indicators of good character demonstrated by Mr Clarke-Wakeling even when in the depth of his depression and whilst engaging in the admitted professional misconduct. We could point for example to the fact that he ensured patient care was not affected. He attempted to save members of the public from the distress of finding his body. He notified various individuals about what was taking place. He has always taken full responsibility for his actions and been candid in his responses to the Board. He voluntarily resigned from his position at the hospital.

40 Nevertheless, we ultimately circle back to the question we are being asked to determine when considering the characterisation of the conduct. Mr Clarke-Wakeling asks us to consider the subjective aspects of the case, whilst the Board submits that we must only consider the objective features of the case when determining how to characterise the conduct.

41 In many of the cases previously before the Tribunal, the Tribunal was either not asked by the parties to make a ruling on paragraph (c) or different submissions about the interpretation of paragraph (c) were made by the parties. We observe for example that, in DDN, the Board did not contend that it was inappropriate to take subjective as well as objective circumstances into account when considering whether the conduct falls within the meaning of paragraph (c).

42 We ultimately agree with the submissions of the Board that our focus must be on the conduct - viewed objectively is it conduct which is inconsistent with being a fit and proper person to hold registration?

43 We agree based on the same reasoning and observations made in Nursing and Midwifery Board of Australia v Harris (Review and Regulation) [2021] VCAT 496 (19 May 2021) at [38] to [46].

38. In recent years, there have been differing opinions expressed in the cases about whether paragraph (c) requires the Tribunal to consider exclusively objective factors (the nature and seriousness of the conduct itself), a hybrid combination of objective and subjective circumstances (the conduct considered in the light of the practitioner's personal circumstances at the time including mental health and factors such as intent, insight and remorse) or subjective factors. The following cases illustrate the differing approaches.

39. In Medical Board of Australia v Cukier [2017] VCAT 109 (Cukier), at [32]-[46], the Tribunal took into account a combination of objective and subjective circumstances, emphasising that the focus is clearly on the conduct. The Tribunal also observed that the matter was not free from doubt and other decision-makers might take a different approach.

40. The Tribunal in Cukier ultimately found that the conduct concerned fell within paragraph (c).

41. In Nursing and Midwifery Board of Australia v DDN [2019] VCAT 2038 (DDN), referred to in Ms Harris' submissions, the Tribunal considered Cukier and other cases and expressed the view, at [49], that the task to be undertaken was:

to consider the conduct in context and with regard to all the surrounding circumstances so as to give the 'widest scope for judgment'.

42. The Tribunal in DDN was satisfied that the respondent's then mental state provided the reason and the context for her poor choices and the misappropriation of the medication, and was not satisfied that the conduct fell within paragraph (c).

43. In Medical Board of Australia v Arulanandarajah [2021] VCAT 85 (Arulanandarajah), at [19]-[48], the Tribunal expressed the following views:

• Determining whether a practitioner has engaged in professional misconduct under paragraph (c) does not require a determination that the practitioner is presently a fit and proper person to hold registration.

• All that is required is a determination of whether the conduct is inconsistent with being a fit and proper person to hold registration.

• The words used allow for the possibility that while the conduct engaged in was inconsistent with being a fit and proper person to hold registration, the practitioner himself was not in fact unfit at that time.

• In any event, the words used allow for the possibility that the practitioner has subsequently become fit and proper to hold registration by the time of the hearing. That will be a separate inquiry, relevant to determinations.

• The task being undertaken is to characterise the conduct.

44. Previous decisions of the Tribunal do not represent authority for a proposition and do not bind subsequent panels, although consistency is of course desirable. The particular facts of the case will always provide important context for the views expressed. In addition, the Tribunal's approach may be refined as different examples come before it of conduct that might fall within paragraph (c).

45. After considering the cases referred to, our own view is closest to the views expressed in Arulanandarajah, for the reasons expressed in that case: that the focus must be on the conduct - viewed objectively, is it conduct which is inconsistent with being a fit and proper person to hold registration?

46. We agree that a finding that conduct falls within paragraph (c) does not lead automatically to a conclusion that the practitioner is not a fit and proper person to hold registration. As a separate inquiry, the Tribunal must determine what the consequences should be - what determinations should be made under s 196(2). That will include consideration of the practitioner's current fitness to practise. In addition to the objective nature and seriousness of the conduct, there may also be a range of mitigating factors which will be relevant to determinations, as there were in this case.

45 We agree with the submissions of the Board that the conduct of Mr Clarke-Wakeling was conduct which was inconsistent with Mr Clarke-Wakeling being a fit and proper person to hold registration in the profession within the meaning of subparagraph (c) of the definition or professional misconduct.

46 We will accordingly make findings that Mr Clarke-Wakeling engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in s. 5 of the National Law.

47 We finally observe that it is of course entirely appropriate for the Tribunal to consider a hybrid combination of objective and subjective circumstances when considering its final _determination_s - i.e the conduct considered in the light of the practitioner's personal circumstances at the time including mental health and factors such as intent, insight and remorse. A failure to do so would amount to not considering or understanding the context of the conduct at all.

48 We turn then to a consideration of the appropriate determination.

8. Submissions on determinations under the National Law

8.1 The parties jointly submit that it is appropriate that the Tribunal:

(a) reprimand Mr Clarke-Wakeling pursuant to section 196(2)(a) of the National Law;

(b) impose conditions on Mr Clarke-Wakeling's registration pursuant to section 196(2)(b) in the following terms:

1. Within 21 days' notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice.

In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner.

The Practitioner will be required to provide the same form:

(a) within seven days of the commencement of practice at each subsequent place of practice, and

(b) within seven days of each and every notice of any subsequent alteration of these conditions.

2. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

Attend for treatment

3. The Practitioner must undertake treatment with a registered psychologist (the treating practitioner) and attend at a frequency determined by the treating practitioner.

4. Within 21 days of the notice of the imposition of these conditions, the Practitioner must provide the following to Ahpra:

(a) the contact details, on the approved form (HPF3), of all treating practitioners;

(b) acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioner(s) on a 3-monthly basis;

(c) confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner's registration and are aware Ahpra may contact them to seek reports.

(d) impose a review period on the conditions of 12 months, pursuant to section 196(3) of the National Law.

49 We consider the proposed determinations to be both sensible and appropriate.

50 We agree with the submissions of the parties that specific deterrence has little role to play given the insight, remorse and rehabilitation demonstrated by Mr Clarke-Wakeling.

51 We are ever mindful of the circumstances surrounding the conduct and the dire position in which Mr Clarke-Wakeling found himself. His was the conduct of a desperately unwell man, who even in the throngs of his personal situation still took care to ensure the least possible harm to others.

52 We accept that the many positive steps he has taken to manage his health, coupled with his lengthy period of abstinence from medications not prescribed to him, are telling of him being able to manage his future risk.

53 We further accept that the delay in the investigative phase of this matter and the consequent delay in the matter reaching final hearing has had a significant deterrent effect, both personally and generally.

54 We are ever mindful in imposing our determination that Mr Clarke-Wakeling has already served a significant period during which his registration was suspended.

55 We will reprimand Mr Clarke-Wakeling. A reprimand is a serious consequence for a health practitioner which reinforces the condemnation of his conduct. We agree with the submissions of the parties that Mr Clarke-Wakeling has demonstrated great insight, remorse and has proven his ability to rehabilitate. We agree that public confidence in him and nurses in general is maintained.

56 Although we agree that Mr Clarke-Wakeling is probably now safer given his levels of insight than he ever was previously, it will be helpful and appropriate for him to continue to receive treatment in the manner suggested by the parties through the proposed conditions to ensure his ongoing fitness to practice.

57 Under section 196(2) of the Health Practitioner Regulation National Law (Victoria) Act 2009, we will:

(a) reprimand Mr Clarke-Wakeling pursuant to section 196(2)(a) of the National Law; and

(b) impose conditions on Mr Clarke-Wakeling's registration pursuant to section 196(2)(b) of the National Law in the terms set out in annexure one

58 We will impose a review period on the conditions of 12 months, pursuant to section 196(3) of the National Law.

**The following conditions are imposed on Mr Clarke-Wakeling's registration pursuant to section 196(2)(b) in the following terms:

1 Within 21 days' notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice.

**

2 In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner.

3 The practitioner will be required to provide the same form:

(a) within seven days of the commencement of practice at each subsequent place of practice, and

(b) within seven days of each and every notice of any subsequent alteration of these conditions.

4 All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

Attend for treatment

5 The Practitioner must undertake treatment with a registered psychologist (the treating practitioner) and attend at a frequency determined by the treating practitioner.

6 Within 21 days of the notice of the imposition of these conditions, the Practitioner must provide the following to Ahpra:

(a) the contact details, on the approved form (HPF3), of all treating practitioners;

(b) acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioner(s) on a 3-monthly basis;

(c) confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner's registration and are aware Ahpra may contact them to seek reports.