The parties made joint submissions as to the orders the Tribunal should make.

• the conduct of the respondent exhibited behaviour contrary to the Code and inconsistent with expected standards of nursing practices;
• the respondent behaved in a way that constituted professional misconduct.

1. The respondent is reprimanded;
2. The respondent is disqualified for a period of three years from applying for registration as a registered health practitioner;
3. The respondent is to pay the complainant's costs as agreed.

Health practitioners - Complaint by Nursing and Midwifery Board of Australia - Professional misconduct - Illicit drugs use - Reprimand - Disqualified from applying for registration for 3 years

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 5, 193, 196, 222

Therapeutic Goods Act 1989 (Cth) s 52

Mr Z Chami for the Complainant (written submissions)

Mr J Wickens for the Respondent (written submissions)

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010

1. This is the determination of a complaint made to the Tribunal by the Nursing and Midwifery Board of Australia (the Board) on 17 March 2020, pursuant to s 193 of Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the National Law), concerning the conduct of Sheryl Lee Edwards.
2. The complaint alleges that Ms Edwards had stolen two 20ml ampoules of Propofol anaesthetic, a prescription drug listed in Schedule 4 to the Poisons Standard pursuant to s 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth), from her place of employment, Ashford Hospital; and that subsequently she had unlawfully administered Propofol to another person outside the ordinary course of her profession and without clinical justification.
3. The Board and Ms Edwards provided the Tribunal with an Agreed Book of Documents, and subsequently filed with the Tribunal a Statement of Agreed Facts (on 17 March 2020) and a Joint Submission on Determination by the Tribunal (filed on 2 July 2020).
4. Given these agreed documents from the Board and Ms Edwards the Tribunal determined the matter on the written documents provided and without an oral hearing.
5. The Tribunal is satisfied of the following facts in this matter, and derives these facts from the Statement of Agreed Facts filed by the parties:
   1. Ms Edwards was born on 11 June 1957 and became a registered nurse on 18 December 1977.
   2. During the period August 2015 and August 2016 Ms Edwards held registration as a Registered Nurse (Division 1) with registration number NMW01127734 under s 222 of the National Law.
   3. During this period she practised as a health practitioner at the Repatriation General Hospital South Australia for 3 days a week as a level 2 registered nurse, and held other employment in private practice working for gynaecologists, one of whom worked at Ashford Hospital.
   4. Sometime between 31 August 2015 and 2 March 2016 while on duty as a registered nurse at Ashford Hospital South Australia Ms Edwards misappropriated two 20ml ampoules of Propofol anaesthetic. Propofol is a prescription drug listed in Schedule 4 of the Poisons Standard pursuant to s 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth).
   5. On 25 May 2016 at her residential address Ms Edwards administered all of one ampoule and part of the second ampoule of Propofol to her 25 year old son who was suffering from a mental illness and having difficulty sleeping.
   6. The administration of the Propofol was undertaken when Ms Edwards was acting unsupervised and outside the ordinary course of her profession; without any licence or direction from a qualified health practitioner to do so; without her son having been lawfully prescribed with the drug; and without any other clinical justification.
   7. Ms Edwards notified Australian Health Practitioner Regulation Agency (AHPRA) on 27 May 2016 and advised that she had stolen two ampoules of Propofol and that she had administered the drug to her son because of his illness and his difficulty sleeping.
   8. On or about 28 June 2016 Ms Edwards informed AHPRA that she intended to retire from her employment and confirmed on 12 August 2016 that she wished to surrender her registration with the Board.
   9. Since that date Ms Edwards has not sought to be registered as a nurse and does not intend to return to practice in the future.
   10. On or about 21 June 2017 Ms Edwards was charged with various offences associated with her misappropriation and use of the Propofol, namely theft; unlawful possession of a prescription drug; and unlawful administration of a prescription drug. Ms Edwards pleaded guilty to these charges.
   11. On 13 March 2019 Ms Edwards was convicted on all three counts. A conviction was recorded "because of the seriousness of the aggregation of the offending", and she was placed on a $1000 good behaviour bond for a period of 12 months. In his sentencing remarks the Magistrate acknowledged that Ms Edwards had stolen the drug for her own use, not her son's, but that she administered the drug to her son to try to assist him when he was suffering from severe mental health issues.
   12. It is this same conduct which forms the basis of the disciplinary proceedings against Ms Edwards, and Ms Edwards has admitted the conduct in both pleading guilty to the criminal charges, and in these proceedings.
   13. The Code of Professional Conduct for Nurses in Australia (the Code) (as in place 7 May 2013 - 28 February 2018) which sets the minimum standards of expected conduct for nurses, applied to Ms Edwards' conduct, and pursuant to s 41 of the National Law, constitutes evidence of what constitutes appropriate professional conduct or practice.
   14. Ms Edwards has agreed that her conduct the subject of the complaint constitutes "professional misconduct" within the meaning of s 5 of the National Law.
6. Section 196 of the National Law governs the Tribunal's determination in this matter. There are two matters to be determined: the characterisation of Ms Edwards' conduct; and the appropriate disciplinary sanction to be imposed.
7. Section 196(1)(b) of the National Law empowers the Tribunal to decide one or more of the following as the appropriate characterisation of the practitioner's conduct:

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has behaved in a way that constitutes professional misconduct;

...

1. Professional misconduct is defined in s 5 of the National Law 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; 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.

1. The Tribunal is satisfied that Ms Edwards was a registered health practitioner within the meaning of the National Law at all relevant times (as a nurse she "practices a health profession" - see s 5 of the National Law), and that she has agreed her conduct amounts to "professional misconduct" within the meaning of this definition.
2. The Tribunal notes Ms Edwards pleaded guilty to the charges arising out of her theft and misadministration of the Propofol, and she was convicted in relation to those charges. The Tribunal has taken into account the sentencing remarks of the Magistrate in those proceedings. In the Statement of Agreed Facts Ms Edwards also formally admitted to the conduct the subject of the charges made by the Board and before this Tribunal.
3. The Tribunal is satisfied that the aggregation of Ms Edwards' conduct alleged in the two complaints made by the Board, namely the theft of the drug, and its unlawful and inappropriate administration, constituted very serious misconduct and has led to a criminal conviction.
4. The Tribunal is satisfied this conduct amounts to professional misconduct within s 196(1)(b)(iii) of the National Law.
5. Following a decision that the health practitioner's conduct falls within one of the forms of conduct, namely professional misconduct, addressed in s 196(1)(b), s 196(2)(a) of the National Law empowers the Tribunal to impose a sanction on the health practitioner.
6. Section 196(2), (3) and (4) of the National Law provide as follows:

If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -

(a) caution or reprimand the practitioner;

(b) impose a condition on the practitioner's registration, including, for example -

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

(e) cancel the practitioner's registration.

(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.

(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person, either permanently or for a stated period, from -

(i) providing any health service or a specified health service; or

(ii) using any title or a specified title.

1. A finding of professional misconduct is the most serious characterisation of a health practitioner's misconduct under the National Law. Ms Edwards' conduct in her theft and misuse of Propofol raises serious and significant issues of misconduct, including conduct contrary to the Code, and inconsistent with expected standards of nursing practice, including a failure to establish a boundary in her personal and professional relationships, and engaging in unlawful and unethical behaviour which diminishes the good standing of the nursing profession. The admitted conduct necessarily raises questions concerning Ms Edwards' fitness to practice as a health practitioner, and the theft of the drug from the workplace clearly represents a significant breach of trust both as an employee and a nurse. Ms Edwards' unlawful administration of the stolen drug to her son was based on no clinical justification and represented significant risk endangering the health and safety of others, and clearly was contrary to the effective operation of the health system, as well as breaching the primary principle of drug administration, that medications are to be administered strictly as prescribed.
2. Ms Edwards self-reported her theft and unlawful use of the Propofol, but the Tribunal notes that she possibly had the stolen Propofol at her home for up to nine months before she made the report, and she only did so following its unlawful administration. Ms Edwards stole the Propofol sometime between 31 August 2015 and 2 March 2016, and she unlawfully administered the drug on 25 May 2016. For up to nine months the stolen drug was unsecured at Ms Edwards' home, presenting a significant risk to anyone who may have found it in her house. Ms Edwards did not report her theft of the drug in that time, and the length of time the drug may have been in her possession is, in the Tribunal's view, an exacerbating factor.
3. The Tribunal notes that Ms Edwards no longer holds registration as a health practitioner under the National Law, as she relinquished her registration on 12 August 2016 and has not sought further registration. In addition, Ms Edwards has advised that she does not intend to seek re-registration in the future.
4. In their Joint Submission to the Tribunal, the parties submitted that the Tribunal should reprimand Ms Edwards, and disqualify her from seeking registration for a period of 18 months.
5. It is the Tribunal's view that a reprimand is appropriate in this matter, and although Ms Edwards is no longer registered as a health practitioner and has indicated that she does not intend to seek any further registration, it is appropriate that she be prohibited from seeking further registration for a period of time in order to make clear the seriousness of the admitted conduct.
6. However, the Tribunal's view is that a period of 18 months does not represent a sufficient disciplinary order in this matter.
7. Had Ms Edwards still been a registered health practitioner the Tribunal could have considered imposing a condition or conditions on her registration. In those circumstances the Tribunal may have considered requirements that Ms Edwards undertake further education or training concerning medication safety; counselling concerning ethical nursing practice; and that she not be employed in critical care or peri operative settings, considering these could constitute appropriate actions for a registered practitioner who had engaged in such activities.
8. However, as Ms Edwards is no longer registered under the National Law the Tribunal is not empowered to impose conditions on any future registration. However, to reflect the Tribunal's concerns about the seriousness of the conduct and the extent to which it reflects such a significant departure from the proper conduct of a health practitioner, the Tribunal's view is that a longer period of prohibition from registration as a health practitioner than that suggested in the Joint Submission is appropriate.
9. Taking all these considerations into account the Tribunal is of the view that a disciplinary order is appropriate in this matter.
10. The Tribunal is satisfied that it is appropriate to reprimand Ms Edwards, pursuant to s 196(2)(a) of the National Law.
11. In addition, the Tribunal considers Ms Edwards should be disqualified from applying for registration for a period of three years from the date of this order, pursuant to s 196(4)(a) of the National Law.
12. Additionally, pursuant to s 195 of the National Law, the Tribunal will order that Ms Edwards pay the Board's costs, which have been set at $3000.00. The Tribunal notes the payment of costs in this sum by Ms Edwards has been agreed by her, as evidenced in the Joint Submission to the Tribunal.

1. The Tribunal made the following orders:
   1. The Practitioner is reprimanded.
   2. The Practitioner is disqualified from applying for registration as a registered health practitioner for a period of three years from the date of these orders.
   3. The Practitioner is to pay the Complainant's costs of and incidental to these proceedings, fixed in the sum of $3000.00.