Pursuant to s.196(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 ("the National Law"), the Tribunal makes the following findings:

1. Mr Alfredo Crocetti has engaged in professional misconduct within the meaning of paragraphs (a) of the definition of professional misconduct in section 5 of the National Law in relation to each allegation.

1. Pursuant to s.196(2) of the National Law, the Tribunal makes the following determinations:
   • (a) pursuant to s. 196(2)(a) Mr Crocetti is reprimanded;
   • (b) pursuant to s.196(2)(d) Mr Crocetti's registration is suspended for a period of two months commencing on 10 July 2018; and
   • (c) upon resumption of practice (following the suspension outlined in paragraph (b) above), Mr Crocetti's registration shall be subject to the following conditions pursuant to s. 196(2)(b):
     1. for a period of four months, Mr Crocetti must not have face-to-face contact with patients'
     2. for a period of 12 months, Mr Crocetti must not practise in any formal education setting;
     3. prior to resuming face-to-face contact with patients, and in any event within four months of the imposition of these conditions, Mr Crocetti must:
        • (A) undertake four hours of one-on-one education on the topic of "identifying and maintaining professional boundaries", such education having been proposed to the Nursing and Midwifery Board of Australia ("the Board") on HPN11 and HPNA11 and approved by the Board prior to its being undertaken; and
        • (B) Submit a reflective practice report, as well as evidence of completion of education to the Board; and
     4. pursuant to s.196(3) the review period for the conditions referred to in (c) above is 12 months.

1. On 15 December 2016, the Nursing and Midwifery Board of Australia ("the Board") decided to refer Mr Alfredo Crocetti's conduct to the Tribunal pursuant to section 193(1)(a) of the Health Practitioner Regulation National Law (Victoria) 2009 ("the National Law").
2. The hearing commenced before us on 2 June 2018, at which time the parties placed before us the following comprehensive Agreed Statement of Facts.

1.1 Alfredo Crocetti (Mr Crocetti) was first registered as a nurse on 7 November 1990. Mr Crocetti's registration is presently subject to an undertaking, detailed at paragraph 2.2 below.

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 Crocetti has been subject to the Health Practitioner Regulation National Law[2] (National Law) since that time.

2.1 On 4 September 2014, AHPRA received a notification (notification no. 00290085) from the Director of Learning and Teaching in the College of Health and Biomedicine at Victoria University (VU), Associate Professor Peter Hartley (Professor Hartley). The notification concerned the alleged conduct of Mr Crocetti on 24 July 2014 as a teacher in the Nursing Education Laboratory of VU. Professor Hartley recounted an allegation that, whilst Mr Crocetti was teaching a Unit called 'HLTEN 512B-Implement and Monitor Nursing Care for Clients with Acute Health Problems' at the St Albans Campus of the University, he touched a student inappropriately on the breast and groin area in the course of demonstrating how to conduct 'head to toe' assessments on a patient. It was also alleged that Mr Crocetti made sexually suggestive statements to the student, including 'you can sit on my face if you like', and that he removed his upper body clothing to permit the student to perform assessments on him (VU Notification).

2.2 On 18 September 2014, the Immediate Action Committee (IAC) of the Board decided to take immediate action under section 156 of the National Law. The IAC of the Board accepted an undertaking from Mr Crocetti that he would:

• (a) only work as a Registered Nurse under the supervision of another Registered Nurse, including in an educational setting;

• (b) provide satisfactory employer reports to the Australian Health Practitioner Regulation Agency (AHPRA) on employer letterhead and signed by the Director of Nursing or equivalent management, to the AHPRA on a quarterly basis from the date the undertaking took effect; and

• (c) prior to changing employer/s, notify the Board in writing of the details of his new employer/s.

2.3 On 18 September 2014, the Notifications Committee of the Board decided to commence an investigation into the VU Notification pursuant to section 160 of the National Law.

2.4 On 23 September 2014, AHPRA wrote to the Acting Nursing Unit Manager of the Intensive Care Unit at Royal Melbourne Hospital (RMH), as Mr Crocetti's employer, to advise of the details of the undertaking accepted by the Board.

2.5 On 8 October 2014, Mr Crocetti resigned from his position as a registered nurse with Melbourne Health (his employer in respect of the work he performed at RMH) after he was told at a meeting that day that his employer was not able to provide him with direct supervision as required by the Undertaking he provided to the IAC of the Board.

2.6 On 27 October 2014, AHPRA received a letter from Denise Heinjus, Executive Director, Nursing Services and Allied Health at Melbourne Health (Ms Heinjus), advising AHPRA of Mr Crocetti's resignation. Attached to that correspondence were letters from Melbourne Health to Mr Crocetti and related emails which referred to previous concerns raised in the course of his employment with Melbourne Health. The correspondence was assessed by AHPRA and treated as a notification (notification no. 00293171) ('the RMH Notification').

2.7 On 11 November 2014, AHPRA wrote to Mr Crocetti to advise him of the receipt of the RMH Notification and invited him to respond by 2 December 2014. On 1 December 2014, Mr Crocetti was contacted on his mobile telephone, at which time he stated he would provide a response. When he failed to provide such a response, he was contacted by Patrick Pulis on behalf of AHPRA and at that time he stated that he would not be providing a response to the notification, saying, 'What's the point?'.

2.8 On 15 December 2014, Mr Crocetti provided an email response to Notification 2 in which he stated:

I will not be taking any further legal action in regards to these matters, as I feel I have been continuously exploited. It seems highly inappropriate for any further action to be taken on these additional documents that were forwarded to AHPRA by the Royal Melbourne Hospital as I have served the consequences and undertaken all requirements as dictated by the hospital in relation to each individual incident.

2.9 On 18 December 2014, the Notifications Committee of the Board decided to commence an investigation into the RMH Notification pursuant to section 160 of the National Law.

2.10 On 4 August 2015, Mr Crocetti provided his written response to the issues identified in relation to the VU Notification. He partly admitted the conduct alleged against him and denied other aspects of that which was alleged.

2.11 On 16 May 2016, Mr Crocetti provided his written response to the issues identified in relation to the RMH Notification. He made partial admissions. Relevantly, he admitted to using the 'piano technique' to troubleshoot ECG leads on an unconscious patient but denied that it constituted a breach of professional boundaries.

3.1 On 15 December 2016, the Board decided to refer the matter of Mr Crocetti's conduct to the Victorian Civil and Administrative Tribunal (Tribunal) pursuant to section 193(1)(a) of the National Law as it reasonably believed that Mr Crocetti had engaged in conduct that constituted professional misconduct.

3.2 The allegations contained in the Notice of Allegations are as follows:

1. Allegation 1 - Failure to maintain standards of professional conduct whilst teaching student nurses

4.1 That Mr Crocetti engaged in:

• (a) professional misconduct within the meaning of the definition of professional misconduct in paragraphs (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 or about 24 July 2014 Mr Crocetti failed to demonstrate the standards of professional conduct expected of a registered nurse towards his colleagues in that he touched a student nurse in an intimate and/or inappropriate manner and/or removed his clothing and/or made sexually suggestive statements.

(i) At all material times Mr Crocetti was a registered nurse;

(ii) In his capacity as a registered nurse, and using his professional skills as such, Mr Crocetti was a lecturer in the Department of Nursing Paramedicine and Health Science Foundations, Victoria University;

(iii) On or about 24 July 2014 Mr Crocetti was teaching a class called 'Implement and Monitor Nursing Care for Clients with Acute Health Problems' in which Ms RC was a student (the Class);

(iv) During the Class Mr Crocetti:

• (A) put his hand inside Ms RC's bra; and/or

• (B) touched and/or lifted and/or squeezed and/or pushed Ms RC's bare breast; and/or

• (C) removed a cup of Ms RC's bra and palpated her bare breast; and/or

• (D) put his hand down Ms RC's outer leg garment, following which he:

  • (I) touched her inner left thigh and/or groin area; and/or
  • (II) touched her vagina over her underpants; and/or
  • (III) touched her inner right thigh and/or groin area;

• (E) removed his shirt and allowed Ms RC to touch his bare torso; and/or

• (F) made sexually suggestive statements.

(v) The Code of Ethics for Nurses in Australia (August 2008) provides that:

• (A) Nurses value respect and kindness for self and others (Value Statement 2);
• (B) Nurses supporting and mentoring students provide positive role models for future practice (Value Statement 2.3);
• (C) Nurses value and accept diversity among their colleagues and acknowledge the need for non-discriminatory interpersonal and interprofessional relationships (Value Statement 3.4); and
• (D) Nurses value the health of colleagues and foster supportive and constructive relationships, recognising that their colleagues also have physical and psychological strengths and limitations and respecting their need for self-care (Value Statement 4.7).

1. Allegation 2 - Transgression of boundaries whilst touching patient in- appropriately and/or without clinical justification

5.1 That Mr Crocetti engaged in:

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

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

in that, between on or about 2 and 3 December 2012 Mr Crocetti transgressed the boundaries that should and ordinarily do exist between a registered nurse and his patient by touching his patient on her breast in a manner which was inappropriate and/or without clinical justification.

(i) At all material times Mr Crocetti was a registered nurse;

(ii) On 2 December 2012 Mr Crocetti was working an overnight night shift in the Intensive Care Unit at Royal Melbourne Hospital;

(iii) During the shift an unconscious female patient, Ms P, was admitted to the Intensive Care Unit;

(iv) Mr Crocetti stood beside Ms P's bed and placed his hand or hands upon Ms P's bare breast or breasts whilst Ms P's bed sheet was arranged down near her waist;

(v) The touching described in particular (iv) was without clinical justification;

(vi) The Code of Ethics for Nurses in Australia (August 2008) provides that:

• (A) Nurses actively preserve the dignity of people through practised kindness and by recognising the vulnerability and powerlessness of people in their care (Value Statement 2.2); and

1. Nurses valuing non-harmful, non-discriminatory care, provide nursing care appropriate to the individual that recognises their particular needs and rights (Value Admissions):
   1. Mr Crocetti admits that he engaged in the conduct particularised in the Notice of Allegations, set out in paragraph 4 and 5 above.
   2. Mr Crocetti admits that the conduct set out in Allegations 1 and 2 constitutes professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct contained in section 5 of the National Law.
      • (B) Statement 4.6).

1. We are satisfied that the Agreed Statement of Facts comprehensively addressed the material before us.
2. In a letter to AHPRA, dated 4 August 2015, and in his signed statement, dated 15 September 2015, Mr Crocetti initially sought to justify and/or deny his conduct in relation to allegation 1. He took offence at the Board taking action which he felt had been previously dealt with by the Royal Melbourne Hospital in relation to allegation 2.
3. Mr Crocetti has now adopted the Agreed Statement.
4. By admitting the alleged facts, he has saved the Tribunal and the Board the time and expense of a contested hearing and obviated the need for witnesses to attend for cross examination.
5. We are satisfied on the basis of the material contained within the Tribunal books and Mr Crocetti's admissions that the Agreed Statement accurately sets out the facts in this matter.
6. We turn then to a consideration of the appropriate categorisation of the conduct engaged in by Mr Crocetti.

1. The Board submitted and Mr Crocetti conceded, we should accept on each allegation that his conduct is appropriately categorised as professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct contained in section 5 of the National Law which reads as follows:

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

1. It is never appropriate for a registered nurse to touch a student nurse in an intimate and/or inappropriate manner. It is never appropriate for a registered nurse to remove his clothing or make sexually suggestive statements to a student. Mr Crocetti's conduct against his female student, in the presence of another student was in breach of the fundamental standards applicable to him as a registered nurse under the Code of Ethics.
2. The conduct took place in the setting of a training laboratory classroom which was intended to be an equivalent environment to that of clinical practice. It was not in keeping with the professional standards and protocols of his employer, Victoria University. It was an abuse of his position of trust and authority as a nurse and nurse educator and represented a gross lack of respect for the students under his supervision and disregard for his important role as a student nurse educator. Mr Crocetti failed to provide a positive role model to students for future practice and his conduct was inconsistent with fostering supportive and constructive relationships with his students. It had the capacity to cause embarrassment and distress to students.

1. Mr Crocetti breached the fundamental standards applicable to him as a registered nurse under the Code of Ethics. He did not actively preserve the dignity of his patient or recognise her vulnerability and powerlessness. The patient was unconscious. The conduct was a fundamental breach of the trust patients place in nurses charged with their care. It also caused distress to nurse colleagues who observed the conduct.

1. The parties made joint submission on determinations as follows:

(a) that Mr Crocetti be reprimanded pursuant to section 196(2)(a) of the National Law.

1. We agreed that this is an appropriate determination.
2. In Peeke v Medical Board of Victoria (unreported, Supreme Court of Victoria no 10170 of 1993, 19 January 1993), His Honour Justice Marks observed that a reprimand being a serious form of censure and condemnation "does not trivialise a serious lapse of professional standards and has the potential for serious adverse implications".
3. We will reprimand Mr Crocetti.

(b) that Mr Crocetti's registration as a nurse be suspended for a period of two months, pursuant to section 196(2)(d) of the National Law.

1. We are satisfied having regard to the nature and gravity of his misconduct, that a suspension of Mr Crocetti's registration is appropriate.
2. We consider that we need to specifically deter Mr Crocetti from engaging in such conduct again. We note that despite his many years of experience as a nurse, he engaged in two discrete acts of misconduct, some years apart and in two different settings.
3. We also need to deter other nurses (and health practitioners generally) from engaging in such conduct. A suspension on a practitioner's registration is a substantial adverse consequence that is likely to prevent others from committing similar conduct. Our order will demonstrate to the profession and the public the standard of behaviour required of members of the profession.
4. Mr Crocetti's conduct had the capacity to undermine the regard in which the profession is held by members of the public. In imposing a period of suspension and demonstrating that there will be significant penalties for this type of conduct, we also protect the reputation of the profession and ensure the public can continue to hold confidence in it.
5. We note however that these matters have already had a significant impact on Mr Crocetti. On 18 September 2014, the Immediate Action Committee of the Board determined to take immediate action under section 156 of the National Law and accepted an undertaking from Mr Crocetti that he would only work as a registered nurse under the supervision of another registered nurse, (including in an educational setting).
6. Mr Crocetti also agreed to provide satisfactory employer reports and notify the Board in writing of any change of employment.
7. Mr Crocetti has therefore been subject to conditions for some years. We have taken these matters into account in reducing the duration of the period of suspension which we may otherwise have imposed. We therefore agree that a two-month period of suspension of Mr Crocetti's registration is appropriate.

(c) that upon resumption of practice (following the suspension outlined at paragraph 0 above), Mr Crocetti's registration be subject to the following conditions, pursuant to section 196(2)(b) of the National Law:

(i) for a period of four months, Mr Crocetti must not have face-to-face contact with patients

1. We explored with the parties what this proposed condition meant. It seemed to us to be a period of suspension disguised as a condition on registration.
2. It is in the public interest for disciplinary matters to be resolved by agreement, but the Tribunal must exercise its own judgement to ensure determinations are appropriate. We gave the parties the opportunity to address us further on this point.
3. In due course, on 26 June 2018, we received further joint submissions which, (relevantly) read as follows:

...those conditions, [set out in paragraph 7.1] in short compass, require that after Mr Crocetti's suspension concludes, he would not have face-to-face contact with patients for four months, during which period he would complete four hours of one-on-one education on the topic of "identifying and maintaining professional boundaries" and submit a reflective practice report to the board. From the time he resumes practice after the two-month suspension, Mr Crocetti would also be restricted from practising in a formal educational setting for 12 months.

The nature of Mr Crocetti's current employment is that he works as a registered nurse for Dr Christoph Pavlidis, a registered medical practitioner, who conducts a general practice in North Melbourne. He has worked for Dr Pavlidis since 2015. However, Mr Crocetti is required by virtue of undertakings he has provided to be supervised at all times whilst practising and Dr Pavlidis submits regular reports to AHPRA confirming compliance with this requirement. This restriction has been in place to protect the public whilst this matter has been progressing toward a conclusion.

As has been set out in the Board's outline, it is plain that the purpose of determinations is not to punish the practitioner, but rather to protect the public and maintain professional standards in the eyes of the public.

When the parties agreed upon and proposed the determinations in the agreement, they did so with the intention of promoting the protection of the public and the maintenance of professional standards in the least restrictive way, balancing this against the need for determinations to reflect the seriousness of the conduct engaged in. That seriousness arises from deficiencies related to conduct that was both clinically unjustified, and which breach professional boundaries in a sexualised and inappropriate manner.

The proposed determination balances the considerations in the following way:

(a) once the Tribunal makes its orders, the undertakings to which Mr Crocetti has been subject, will no longer apply;

(b) this will mean Mr Crocetti is no longer required to be supervised in his practice or to submit employer reports to AHPRA about this;

(c) Mr Crocetti will take two months of accrued leave during the two- month period of suspension that would then commence. As such, the period of suspension will not be punitive because Mr Crocetti will still have some income;

(d) Mr Crocetti will then not be able to have face-to-face contact with patients, and during this period he will undertake education that is necessary to protect the public if he is to be permitted to practise unsupervised. The education is specifically designed to allow Mr Crocetti to address the deficiencies in his practice that were manifested by his admitted professional misconduct;

(e) once education is complete and a reflective practice report submitted, and during the balance of the four-month period before he is permitted to resume practice unsupervised, he will return to his employment but only to do paperwork and office work for Dr Pavlidis during that period; and

(f) Mr Crocetti can at the conclusion of the six-month period, return to practice unsupervised, save that he cannot work in an educational setting for a further six months. This is designed to allow him to reinforce his skills and ability to practise before he is permitted to teach others about nursing (if he chooses to do so).

The parties understand that the concern of the Tribunal is that the proposed condition involving Mr Crocetti not having face-to-face contact with patients is "tantamount to a suspension". The parties submit that this is not so. Rather, the proposed determinations were carefully crafted and intended to allow gradual resumption of practice by Mr Crocetti, in the manner outlined.

1. We are grateful to the parties for the further submissions and for the work put into reaching an agreed position. Joint positions save considerable time and expenditure and ensure that witnesses are not required to attend hearings and give evidence which they may have found inconvenient and/or uncomfortable.
2. The parties continue to be jointly confident that the agreed determinations constitute an appropriate disposition of the matter for the reasons set out. We are ultimately satisfied that the joint proposal is within the permissible range. We will adhere to the parties wishes for the reasons set out in the further submissions.

(ii) for a period of 12 months, Mr Crocetti must not practise in any formal education setting

1. The role of a nurse educator is a special one - involving leadership and mentoring. We agree that the suggested period will give Mr Crocetti a further opportunity to return to practise, refine and cement his insight into his conduct before returning to teaching.
2. (iii) prior to resuming face-to-face contact with patients, and in any event within four months of the imposition of these conditions, Mr Crocetti must:

(A) undertake four hours of one-on-one education on the topic of 'identifying and maintaining professional boundaries', such education having been proposed to the Board on HPN11 and HPNA11 and approved by the Board prior to it being undertaken; and

(B) submit a reflective practice report, as well as evidence of completion of education to the Board;

1. We are concerned about the level of insight displayed by Mr Crocetti into why he engaged in the misconduct; the effect of his misconduct and the serious nature of his misconduct.
2. We are satisfied that this is an appropriate condition designed to allow Mr Crocetti to address the deficiencies in his practice.
3. We are ultimately satisfied for the reasons set out in the further submissions that the proposed conditions are appropriate and we will make the orders as sought by the parties.
4. In accordance with section 196(3) of the National Law, the review period for the conditions referred shall be 12 months.

1. We will make the following orders.
2. Pursuant to s.196(2) of the National Law, the Tribunal makes the following determinations:
   • (a) pursuant to s. 196(2)(a) Mr Crocetti is reprimanded
   • (b) pursuant to s.196(2)(d) Mr Crocetti's registration is suspended for a period of two months commencing on 10 July 2018; and
   • (c) upon resumption of practice (following the suspension outlined a paragraph (b) above), Mr Crocetti's registration shall be subject to the following conditions pursuant to s. 196(2)(b):
     1. for a period of four months, Mr Crocetti must not have face-to-face contact with patients'
     2. for a period of 12 months, Mr Crocetti must not practice in any formal education setting;
     3. prior to resuming face to face contact with patients, and in any event within four months of the imposition of these conditions, Mr Crocetti must:
        • (A) undertake four hours of one-on-one education on the topic of "identifying and maintaining professional boundaries", such education having been proposed to the Board on HPN11 and HPNA11 and approved by the Board prior to it being undertaken; and
        • (B) submitted reflective practice report, as well as evidence of completion of education to the board; and
     4. pursuant to s.196(3) the review period for the conditions referred to in (c) above is 12 months.

[1] On 18 September 2018, a correction order was made under section 119 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), as the names of the applicant and the respondent in the header table of the decision and the Citation had been reversed as a result of a clerical error.

[2] The National Law as applicable in Victoria is set out as a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.