1. The respondent was subject to the National Law, the Board's Codes of Conduct and Ethics for Nurses in Australia, and his employer's code of conduct, values statement and policies.
2. The Board's referral to the Tribunal referral was made in March 2019. The Board's suspension of the respondent's registration is still in force.
3. Under the National Law, professional misconduct is defined as including:
   • (a) Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
   • (b) More than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
   • (c) Conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
4. Upon a finding of professional misconduct, the Tribunal may make one or more of a range of orders in relation to the practitioner including reprimand, fine, imposition of conditions, suspension and cancellation.

1. The following documents were tendered and relied upon by the parties:
   • (a) Complaint and Response;
   • (b) Book of Documents;
   • (c) Character reference letters concerning the respondent;
   • (d) Certificates and descriptions of courses undertaken by the respondent since suspension;
   • (e) AHPRA's "Information Sheet for Mentors".
2. The Board submitted that the Tribunal should find the respondent had committed professional misconduct on one occasion and unprofessional conduct on the second and third occasions, which by virtue of the definition of 'professional misconduct' are, when viewed together, characterised as professional misconduct. The Board submitted that it was relevant to the Tribunal's decision that:
   • (a) The respondent was in a position of authority in relation to RR;
   • (b) The conduct took place on RR's first day of his first ever placement in practice;
   • (c) RR was confused, upset and offended by the respondent's conduct;
   • (d) The conduct was in breach of several of his employer's policies as well as in breach of the code of conduct and code of ethics in numerous ways.
3. In relation to the orders to be made, the Board submitted that a period of 2 to 3 months suspension of registration would be warranted for the conduct, but that in light of the period of time that the respondent's registration had already been suspended by the Board, no period of suspension was required to be imposed by the Tribunal. It submitted that a reprimand was appropriate and that conditions be imposed on the Respondent's registration. Those conditions should include a requirement that the respondent undertake certain education within 6 months of the orders. It further submitted that the respondent should be required to arrange a mentor for himself and to undertake 10 sessions of mentoring in specified areas.
4. The respondent's counsel submitted that the respondent's conduct occurred over a short period of time. He made admissions and acknowledged the impropriety of his conduct immediately. His personal circumstances are relevant:
   • (a) He was born in the Philippines and migrated with his wife and son in 2010.
   • (b) Cultural habits affected his conduct towards RR. They were also out of character.
   • (c) He has a good employment history and has had positive feedback about his mentoring in the past.
   • (d) He was not aware that RR was offended by his behaviour.
   • (e) He is remorseful and embarrassed.
   • (f) He has since undertaken eight hours of relevant education.
   • (g) Since his employment was terminated, he has worked as an Uber driver and has been disadvantaged financially.
5. The respondent's counsel submitted that it was open to the Tribunal to make orders reprimanding the respondent, requiring him to undertake further education but acknowledging the education that he has undertaken since his suspension. He further submits that the Tribunal should not impose a requirement that he arrange a mentor, on the basis that the obligation would be onerous and impractical to carry out.

1. The Tribunal has no hesitation in concluding that the conduct described in grounds 1, 2 and 3 that the respondent engaged in was professional misconduct. It was unwanted, unsolicited conduct of an intimate and/or sexual nature. It occurred while RR was on placement, was seeking to learn and succeed and in a situation in which he was unfamiliar with the people and the practices of the workplace. The respondent was in a position of authority in relation to him. It was completely unacceptable and contrary to numerous professional and employer standards known to the respondent.
2. The case of Nursing & Midwifery Board of Australia v Crocetti,[1] to which the Board's counsel referred us, is relevant but distinguishable. In that matter, the practitioner was a nurse educator and the inappropriate conduct occurred within the classroom. The nurse educator's core duties in that case entailed imparting information for the purpose of education to student nurses. At all times, the nurse educator was in a position of authority. On the other hand, Mr Dinglasan had not, on the evidence, been instructed at any time how to orient and mentor a placement student. Nevertheless, his conduct fell so short of what was reasonable in the circumstances that a lack of guidance could not be said to be the cause. His conduct was, however, less reprehensible than that of a nurse educator whose core duties are to guide nursing students into competence and professionalism. Mr Dinglasan has not been shown to be lacking in his technical nursing capability.
3. A reprimand to the respondent is warranted, to convey the Tribunal's view that the conduct falls below the standard of what is expected of an enrolled nurse in the workplace when dealing with any other person in the course or his or her duties.
4. Had the conduct just occurred, the Tribunal would have imposed a suspension of the respondent's registration for several months. In light of the lengthy suspension the Board has imposed on the respondent by way of "immediate action" taken pursuant to s 156 of the National Law, no period of suspension is now required to protect the public. The Tribunal notes that it is for the Board to determine the next step in relation to the suspension it imposed, pursuant to s 159(2).
5. It is important that the respondent have reinforced what appropriate interactions in the workplace (between nurses and patients and between nurses and colleagues) look like. The Tribunal considers that one important way for this to occur is for the respondent to undertake some further training.
6. The respondent has completed nine hours of education between February and October 2019, as follows:
   • (a) ANMF (SA) course - Professional Boundaries - A Midwife's Guide (1 hour);
   • (b) ANMF (SA) course - Bullying in the Workplace (2 hours);
   • (c) ANMF (Fed) course - Workplace bullying (2 hours);
   • (d) RCNi course - Promoting professional practice skills in the workplace (1 hour);
   • (e) ANMF(Fed) course - Ethics in Nursing and Midwifery Practice (3 hours).
7. The Board's position is that the respondent should be required to complete, over the next six months, four hours education on each of the topics of ethics, anti-sexual harassment and respectful behaviour, such education to be approved by the Board and with a reflective practice report by the respondent.
8. Ms Baillie submitted that, taking the courses that the respondent had undertaken into account, the Tribunal should impose a requirement of two further hours on each of the topics only.
9. The Tribunal considers that the respondent would benefit from further education to reinforce the core concepts of acceptable conduct in the workplace between colleagues and between practitioners and patients and other members of the public. We consider that only some of the course-work that the respondent has recently undertaken is directly relevant to addressing the conduct that the respondent engaged in. The Board should consider whether the education already completed by the respondent entitled "Ethics in Nursing and Midwifery Practice" meets the component of training on "ethics" proposed by the Board. We do not consider that 'leadership' training is needed. A role leading staff is a significant way ahead of the respondent as things currently stand. We consider that two hours on each of the topics proposed by the Board is appropriate (unless, in respect of the ethics component, the Board accepts that it has already been undertaken), and the orders will reflect that.
10. The issue on which the parties differed most significantly was the appropriateness of an order for mentoring. The Board proposed that the respondent be required to undertake ten one-hour sessions of mentoring in relation to the obligations of a trainer to a student. The mentoring arrangement should be in place within 28 days and is to be notified to each employer with whom the respondent commences employment. Counsel for the respondent submitted that the mentoring requirements were impractical and unaffordable and that no employer would take the respondent on whilst he was subject to such requirements.
11. The Tribunal considers that the respondent would benefit from face-to-face discussions with a mentor regarding his inter-personal dealings as an enrolled nurse. We also consider that, given the roles he is likely to be able to secure it is not realistic to require that mentoring to occur on-the-job. It is more likely that the respondent will need to obtain, perhaps with the assistance of his union, and secure a mentor to conduct mentoring with him prior to or outside any work he may obtain as a nurse. A further important part of this will be a reflective practice component. In light of this reflective practice report, such a report is not needed for the education. It will provide greater benefit if it is associated with the mentoring. We are not satisfied that ten hours of mentoring are required. However, we do think that sessions should be structured so as to be the appropriate length for efficacy. We consider that eight hours of mentoring, undertaken in sessions of 1-2 hours each, with a reflective piece to conclude, would address the deficits in the respondent's understanding of the role.
12. The Board sought an order that the Respondent pay the Board $500 by way of a costs order. The respondent did not oppose such an order being made. The amount reflects an appropriate partial contribution by the respondent to the Board's costs associated with the matter.

1. The respondent is reprimanded.
2. The respondent must undertake and successfully complete at his own cost, or demonstrate that he has since his suspension undertaken and completed, a program of education, approved by the Board, of two hours of participation in relation to each the following topics (or such other related topics approved by the Board):
   • (a) Ethics;
   • (b) Anti-sexual harassment;
   • (c) Respectful behaviour.
3. Within 28 days of the date of these orders, the respondent must, on the approved form, nominate for approval by the Board an education course, assessment or program and provide such information as the Board requires for its approval or refusal of the nomination.
4. The respondent must provide evidence to AHPRA of the successful completion of the program of education within six months of the notice of the Board's approval of the program of education.
5. The respondent must, at his own cost, be mentored by a registered nurse with professional experience delivering clinical training to student nurses, and approved by the Board within six weeks of these orders, as follows:
   • (a) The mentoring must relate to ethical practice and inter-personal relationships;
   • (b) There must be sessions totalling 8 hours, undertaken in sessions of no less than one hour and no more than two hours, with no more than two sessions per week;
   • (c) Upon obtaining the Board's approval of the nominated mentor, the respondent must within 7 days provide AHPRA acknowledgement that AHPRA may seek reports from the approved mentor from time to time.
   • (d) In the event that the approved mentor is no longer willing or able to provide the mentoring required, the respondent must, within 21 days of becoming aware of the termination of the mentoring relationship, provide a new nomination to the Board for a mentor to perform the role for the remainder of the mentoring period.
   • (e) Within 28 days of the conclusion of the mentoring relationship the respondent must provide AHPRA with a report that demonstrates, to the satisfaction of the mentor, that the respondent has reflected on the issues that gave rise to the proceedings and outlining how the respondent proposes to incorporate the lessons learnt into their practice.
6. The respondent must, within 21 days of these orders or of obtaining employment as a nurse or at a place where nursing practice takes place, inform AHPRA of the place of employment and a contact person at that place for the purpose of AHPRA informing the employer of the conditions on the respondent's registration.
7. The Board is to review the conditions within nine months.
8. The respondent is to pay to the complainant its costs of and incidental to the within proceedings in the agreed sum of $500.00 to be paid to the Complainant within six months of the date of these Orders.

[1] [2018] VCAT 1054.