1. Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the respondent is reprimanded.
2. Under section 196(2)(e) of the National Law, the respondent's registration is cancelled.

1. Ms Kellie Maree Fisher has been a registered nurse since December 1999.
2. Since 2010, Ms Fisher has had periods of addiction to opioid drugs, triggered by pain or physical injury.
3. In 2010 and 2015 Ms Fisher was charged and found guilty of offences arising from theft of prescription pads from workplaces and forging prescriptions for her own use.
4. During the period March 2010 to December 2014, the Nursing and Midwifery Board of Australia (Board) was aware of and acting upon the criminal and health consequences of Ms Fisher's addiction. The Board suspended her registration when it became aware of the two sets of criminal charges. It arranged for her to have health assessments. When satisfied Ms Fisher could again practice as a nurse, it imposed conditions on her registration requiring her to have counselling, undergo random urine analysis and report to it about her employment.
5. In December 2014, the Board's Immediate Action Committee (IAC) decided to suspend Ms Fisher's registration as the Board had been notified of the theft charges which were finally dealt with in May 2015. Ms Fisher's registration remains suspended.
6. On 15 December 2016, the Board decided to refer Ms Fisher to this Tribunal, so it could consider and make decisions about her professional conduct during the period 7 August 2014 to 13 May 2015. The referral was received by the Tribunal on 9 February 2017 together with a notice of allegations which set out six separate incidents said to amount to professional misconduct or unprofessional conduct. We will come to the detail of the allegations shortly.
7. By the time of the hearing, the parties had prepared an agreed statement of facts. Other than in respect of one matter, the parties agreed five of the incidents amounted to professional misconduct as defined in the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law). Ms Fisher contended that one incident amounted to unprofessional conduct under the National Law.
8. We decided all incidents set out in the allegations amounted to professional misconduct and made those findings at the hearing. We then heard from the parties as to what determinations ought to be made under the National Law.
9. The parties agreed Ms Fisher should be reprimanded for her past conduct, however they did not agree on any further determinations.
10. The Board sought cancellation of Ms Fisher's registration with the imposition of a period of six months before which she could re-apply to be registered again by the Board.
11. Ms Fisher sought a determination that the current suspension be set aside and that she be allowed to continue to practice subject to conditions.
12. Having considered all of the matters raised by the parties, we have decided to cancel Ms Fisher's registration. We have done so to ensure that Ms Fisher is deterred from engaging in like conduct again. We decided that is an appropriate determination for the purposes of general deterrence. By declining to allow Ms Fisher to resume practice on further conditions, other practitioners are put on notice of the serious consequences of engaging in criminal behaviour and breaching professional responsibilities including complying with Board imposed conditions.
13. We decline to accept the Board's submission that a period during which Ms Fisher is disqualified from re-applying for registration ought to be imposed. We make that decision having found that Ms Fisher is now drug free and in circumstances where Ms Fisher has been unable to practice for more than three and a half years already. We considered the imposition of a further period of disqualification would be unduly punitive.
14. Of course, as Ms Fisher's registration is cancelled, she will have to apply to the Board for re-registration and persuade it that she remains drug free and is a fit and proper person to be registered.

1. No witnesses were called to give evidence before us.
2. Accordingly, while we had regard to a range of documents before us, including expert reports about drug testing results, we did not have the benefit of hearing evidence on oath or affirmation about those matters. Of concern to us was the consequence that we could not ask questions to clarify or better understand the contents of those documents. We raised this concern with the parties who maintained the position that witnesses would not be called.
3. Although Ms Fisher made a witness statement, the Board elected not to require her to be available for cross-examination.
4. We expressly informed Ms Fisher and her legal representative that we would prefer to hear from her, not as to the factual elements of the allegations, but as to her current position and health, what she had learned from the past events, what steps she would take to ensure like conduct did not happen again and her understanding of the nature and significance of her professional responsibilities. Ms Fisher continued to decline to give oral evidence before us.
5. While Ms Fisher and the parties more generally were entitled to present their cases as they chose, the absence of clarifying or explanatory evidence meant we had to make what we could of the evidence we had before us.

1. The following comes from the parties' statement of agreed facts. Although the allegations before us concern events commencing in August 2014, we have set out a fuller description of Ms Fishers' professional and registration background to put the allegations in the appropriate context.

Qualifications and first registration in December 1999

1. Ms Fisher qualified as an enrolled nurse in 1999 and was first registered by the Board on 24 December 1999.
2. Ms Fisher completed a Bachelor of Nursing in 2005.

Suspension in March 2010 and conditions in September 2010

1. In 2010, Ms Fisher developed an addiction to the opioid drug, Tramadol. Ms Fisher was charged by Victoria Police with offences relating to the theft of a prescription pad from her work place and forging prescriptions for drugs.
2. In March 2010, the Board suspended Ms Fisher's registration. Ms Fisher commenced counselling through the Nursing and Midwifery Health Program.
3. In July 2010, Ms Fisher was found guilty of the charges before the Magistrates' Court, resulting in the court imposing a two-year Good Behaviour Bond, without conviction.
4. In September 2010, the Board restored Ms Fisher's registration with conditions that she undergo random urine analysis, continue to receive counselling and advise the Board when she commenced working. Ms Fisher obtained employment as a Division 1 nurse with an aged care facility

1. On 9 February 2011, the Facility Manager of the aged care facility where Ms Fisher worked notified the Board of concerns regarding Ms Fisher. The Facility Manager stated that on three occasions, between 29 December 2010 and 16 January 2011, Ms Fisher had received and signed for the Schedule 8 drug Endone (5mg x 20), but that the medication was found to be missing.
2. As a result, Ms Fisher's employment was terminated and Victoria Police was notified of the alleged theft of the drugs. Ms Fisher was not charged with any criminal offences and during the Victoria Police and Board investigation Ms Fisher denied taking the Endone. As at the time of the hearing before us, Ms Fisher maintained that denial.
3. In response to the notification, on 16 February 2011, the Board took immediate action to suspend Ms Fisher's registration as a nurse under section 156 of the National Law.

1. By letter dated 21 March 2011, the Board requested that Ms Fisher attend for a health assessment to be conducted by consultant psychiatrist, Dr Peter Smith on 11 April 2011.
2. Dr Smith provided a report regarding Ms Fisher's health on 15 April 2011, in which he diagnosed her condition as 'substance abuse - in remission' and described that condition as 'a temporary incapacity'. Dr Smith expressed the view that there was a sufficient degree of doubt, uncertainty and concern as to warrant Ms Fisher as being unfit to work as a registered nurse at that time. Dr Smith recommended that Ms Fisher continue to receive counselling and have regular screening for opioids and other drugs/medications over the following six months. Dr Smith also recommended that there be a follow up independent psychiatric assessment and review should Ms Fisher wish to work again as a registered nurse and that the assessor should have access to input from Ms Fisher's counsellor and other documentary evidence.

Conditions imposed upon registration October 2011

1. In October 2011, a Health Panel convened under the National Law found Ms Fisher had an 'impairment' as defined in section 5. The Panel determined that it was appropriate to allow Ms Fisher to practise again, but to do so with conditions on her registration, including that she continue with counselling, undergo random urine analysis and obtain approval prior to commencing employment and prior to changing the nature or place of her employment.

1. Ms Fisher subsequently failed to comply with the conditions placed upon her registration. On 29 June 2012, on behalf of the Board, the Australian Health Practitioner Regulation Agency (AHPRA) wrote to Ms Fisher by registered post regarding her non-compliance with the counselling and random urine drug screen analysis conditions, among other things. Similar letters followed from AHPRA to Ms Fisher on 31 August 2012, 23 October 2012, 6 December 2012, 29 January 2013, 13 September 2013 and 16 September 2013. A number of those letters were returned to sender, although Ms Fisher's address had not changed.
2. On 21 October 2013, the Board decided to commence an investigation into Ms Fisher's non-compliance with the conditions on her registration, under section 160 of the National Law and notified Ms Fisher of its decision.
3. On 11 December 2013, AHPRA received a letter from Ms Fisher in response to identified issues regarding non-compliance. Ms Fisher supplied copies of urine drug screens with her letter. Regarding her employment, Ms Fisher wrote that she had been working full-time but not in the nursing industry. In addition, Ms Fisher enclosed an application for a review of the conditions on her registration, in which she sought for the conditions to be removed on the basis of her claim that she no longer had a drug-dependence.

1. The conditions on Ms Fisher's registration included a condition that she attend an independent health examination prior to any change or removal of conditions. In response to Ms Fisher's application for review of the conditions, she was referred for a further health assessment by Dr Smith, which was conducted on 17 February 2014.
2. Dr Smith provided his report on 20 February 2014. Based on information reported to him by Ms Fisher, Dr Smith stated that Ms Fisher had not worked as a registered nurse since his previous examination in April 2011 and that for the previous 18 months to two years she had worked full-time in a laser hair removal clinic, in which she continued to be employed. Dr Smith also noted that Ms Fisher said that she had last attended counselling about two years earlier. Again, Dr Smith diagnosed Ms Fisher with substance dependence in remission. Dr Smith expressed the view that, on the material before him, Ms Fisher was able to work as a registered nurse. Dr Smith expressed the view that it was highly improbable that, by working as a registered nurse, Ms Fisher would be at risk of a relapse of substance abuse/dependence. Dr Smith also expressed the view that, from a psychiatric/psychological perspective, there were no compelling reasons that continued conditions needed to be placed on Ms Fisher's registration.
3. On 14 April 2014, Ms Fisher attended an interview with AHPRA officers to review her application to remove conditions on her registration. In the interview, Ms Fisher confirmed that she was not currently working as a registered nurse but continued to work at the laser hair removal clinic.

1. On 3 July 2014, the Board decided to caution Ms Fisher regarding her non-compliance with conditions on her registration in failing to forward her urinalysis results to AHPRA in a timely manner. The Board further decided to grant Ms Fisher's application to remove the condition requiring her to attend a counsellor and the condition requiring that she attend an independent medical examination before the removal of conditions.
2. However, the Board decided to refuse to grant her application to remove the remaining conditions on her registration. Despite the positive report from Dr Smith, the Board noted that Ms Fisher had not worked as a registered nurse since the imposition of conditions on her registration in 2011. The Board noted that the conditions were necessary in view of Ms Fisher's history of substance misuse and the period that she had not practised.

1. The following is the factual background to the matters currently before the Tribunal.
2. Ms Fisher's instances of non-compliance continued to occur and were the subject of a further letter to her from AHPRA on 4 August 2014, to which she responded by advising that her husband had been diagnosed with a medical condition requiring specialist appointments, scans and possibly chemotherapy.
3. AHPRA sent a further letter to Ms Fisher regarding non-compliance on 4 September 2014. In response to this letter, Ms Fisher telephoned AHPRA. During the telephone discussion, Ms Fisher confirmed that her current employment at the laser hair removal clinic did not require her to be registered as a nurse.
4. On 18 September 2014, the Board determined to commence an own-motion investigation under section 160 of the National Law into Ms Fisher's non-compliance.
5. On 16 October 2014, the Board decided to convene an IAC because of instances of non-compliance by Ms Fisher in respect of urinalysis. The IAC subsequently determined, on 24 October 2014, that there was no serious risk to public health and safety requiring immediate action regarding Ms Fisher because she had confirmed that she was not working as a nurse.
6. On 29 October 2014, Ms Fisher was given a notice to provide employer details under section 132 of the National Law by 6 November 2014.
7. By email on 11 November 2014, Ms Fisher advised AHPRA of the name and address of her employer and confirmed that her role was 'beautician/laser therapist'.

Notification and immediate action suspension December 2014

1. On 4 December 2014, AHPRA received a notification from the Operations Manager of a radiology company regarding Ms Fisher allegedly attempting, on 24 November 2014, to fill a forged prescription taken from a prescription pad at the clinic which was located at a private hospital. Subsequent examination of the prescription pad indicated that 35 prescription slips had been removed, of which the discovered forged prescription was one. The Operations Manager confirmed that Victoria Police and the then Department of Health (Drugs and Poisons) had been notified and that Ms Fisher had been dismissed from her employment with the radiology company.
2. The notification revealed that Ms Fisher had been working as a nurse with the radiology company on a permanent part-time basis since 17 September 2012, without prior approval as required by the conditions on her registration and contrary to the information that Ms Fisher had provided repeatedly to AHPRA.
3. On 12 December 2014, the IAC suspended Ms Fisher's registration with immediate effect.
4. On 13 May 2015, Ms Fisher pleaded guilty to two charges of theft and attempting to obtain property by deception. Ms Fisher was placed on an adjourned undertaking for 12 months. No conviction was recorded.
5. By letter dated 18 March 2016, AHPRA sought Ms Fisher's formal response to the notifications regarding non-compliance and the theft of prescriptions. Ms Fisher responded on 4 April 2016 saying, amongst other things, that, as alleged by AHPRA, she:
   • (a) believed that she missed attending one random urine analysis, but she had phoned AHPRA to give her reason and she had never returned a positive result;
   • (b) admitted she had not notified AHPRA of commencing her employment with the radiology company, which she attributed to 'poor judgement' in 'hindsight'; and
   • (c) admitted she had misappropriated prescription pads from the radiology company, forged prescriptions, attempted to obtain prescription medications using the forged prescriptions and was found guilty of theft and attempting to obtain property by deception.

1. As noted earlier, on 15 December 2016, the Board decided to refer the matter of Ms Fisher's professional conduct to the Tribunal under section 193 of the National Law because it reasonably believed that Ms Fisher had behaved in a way that constituted professional misconduct.

1. The allegations before the Tribunal were that Ms Fisher engaged in professional misconduct within the meaning of paragraphs (a), (b) and (c) of the definition of professional misconduct in section 5 of the National Law and/or unprofessional conduct as defined, in that:

(a) on 7 August 2014 and 9 September 2014, Ms Fisher failed to comply with a condition imposed upon her registration under section 191(3) of the National Law, in that she failed to attend for random urinalysis as directed;

(b) on 17 September 2012, Ms Fisher failed to comply with a condition imposed upon her registration under section 191(3) of the National Law, in that she failed to obtain the approval of AHPRA prior to commencing nursing employment;

(c) on dates between 6 October 2014 and 24 November 2014, at [a hospital], Ms Fisher stole a number of prescription slips belonging to [her employer, a radiology company];

(d) on or about 24 November 2014, Ms Fisher fraudulently completed a prescription slip that she had taken by handwriting false details;

(e) on or about 24 November 2014, Ms Fisher used the fraudulent prescription slip in an attempt to obtain prescription medicine;

(f) on or about 13 May 2015, in the Magistrates' Court at Melbourne, Ms Fisher was found guilty, without conviction, of one count of theft and one count of attempting to obtain property by deception.

1. The National Law defines 'professional misconduct', in the context of a registered health practitioner, 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.
2. The National Law relevantly defines 'unprofessional conduct' as 'professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers'.
3. The Tribunal has power to make findings about conduct under section 196(1)(b) of the National Law.
4. Section 196(2) of the National Law sets out the determinations the Tribunal may make where professional misconduct or unprofessional conduct has been proven. They include cancellation of registration, suspension of registration and the imposition of conditions.
5. The Tribunal's primary role is to protect the public rather than to punish health practitioners who engage in professional misconduct or unprofessional conduct. Determinations also assist to maintain proper ethical and professional standards to protect the public and to protect the profession in the sense of maintaining stature and integrity in the eyes of the public. The Tribunal is also required to, in appropriate cases, make determinations which will deter the individual health practitioner from engaging in the same or like conduct again and/or which serve as a warning to other health practitioners that engaging in the conduct will bring serious consequences - the latter is known as general deterrence.[1]
6. Where parties have reached a proposed agreement of the kind presented in this case, it remains the Tribunal's duty to determine the level of conduct alleged and the determinations to be imposed as no agreement between a regulator and the professional person under review can supplant that duty. However, it is appropriate for the Tribunal to give weight to and take into account the agreement between the parties as a highly relevant and important matter. That is particularly so if it is clear from the face of the agreement that it does not represent an arbitrary outcome but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.[2]

1. We make our findings on the balance of probabilities, comfortably satisfied they are open on the evidence taking into account the seriousness of the allegation and the consequences of findings such as these.
2. Ms Fisher admitted to all of the behaviour described in allegations (a) to (f).
3. As a question of fact, we were satisfied on the material before us and on the admissions made by Ms Fisher that she engaged in the conduct described in the allegations.
4. As set out earlier, Ms Fisher agreed that allegations (b) to (f) amounted to professional misconduct within paragraph (c) of the definition. As discussed below, we agreed that was a proper characterisation considering the seriousness of each element of the conduct.
5. Ms Fisher contended that the conduct described in allegation (a) amounted to unprofessional conduct rather than professional misconduct.

Allegation (a) - failure to comply with a condition - random urinalysis on 7 August 2014 and 9 September 2014

You are to attend for random urinalysis in accordance with AHPRA's protocol.

1. In her affidavit sworn on 5 July 2017, Ms Fisher said this about the allegation at paragraphs 24 and 25:

In approximately August 2014 my husband ... was diagnosed with kidney cancer. This was unexpected as it was picked up during a routine scan for something unrelated. He required surgery to remove a kidney. This situation caused me significant stress and anxiety and I responded by allowing my addiction to spiral further. My addiction to Tramadol was at its height towards the end of 2014.

It is alleged by the Board that I did not attend urine screens on 7 August 2014 and 9 September 2014 as required by the conditions of my registration. I do not have specific recollection of these occasions. This was during the period of time that my husband had been diagnosed and was being treated for cancer in hospital. I was also struggling with my [addiction].

1. The Board contended that, at the relevant time, Ms Fisher was seeking to avoid testing and so subvert the testing regime. It contended that conclusion could be inferred from Ms Fisher's own affidavit evidence about the state of her addiction at the time and in the context of the many letters Ms Fisher had received regarding compliance.
2. A failure to comply with a condition on registration is a very serious matter as it suggests the practitioner is not willing to observe the law and act consistently with the requirements of the relevant registration body. It is not open for a professional person to decide which conditions they chose to comply with or to disregard restrictions which have been placed on their registration.
3. In this case, the condition arose from the prior criminal conduct Ms Fisher had engaged in the context of a drug addiction.
4. At the hearing we informed the parties that:
   • Having regard to the above paragraphs of Ms Fisher's affidavit sworn, we found as a question of fact that there were two reasons why she failed to comply with the condition: first her husband's illness and second the fact she was struggling with her addiction; and
   • While it could be open to us to infer that Ms Fisher was seeking to avoid testing and so subvert the testing regime, it was not necessary to do so as we were satisfied the conduct amounted to professional misconduct.
5. The finding of professional misconduct was made considering the following factors.
6. It was clear from the National Law definitions that one breach of a condition is unprofessional conduct and two breaches can be sufficient to establish professional misconduct under paragraph (b) of the definition of that term.
7. We were comfortably satisfied that the two proven breaches of the testing condition amounted to professional misconduct under paragraph (b) of the definition given:
   • The history of the condition which went back to 2010;
   • Ms Fisher's prior non-compliance with the condition;
   • The letters and warnings Ms Fisher had been sent about compliance by AHPRA in the preceding approximately 12 months;
   • The opportunity Ms Fisher was given to provide evidence of an explanation as to the non-compliance and additional time to comply;[3] and
   • Taking into account the purpose of the condition on Ms Fisher's registration.
8. We were comfortably satisfied the conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience and so it amounted to professional misconduct.

Allegation (b) - failure to comply with a condition - approval of employment

You must obtain the approval of AHPRA prior to commencing employment and prior to changing the nature or place of your employment

1. Ms Fisher agreed the conduct referred to in allegation (b) amounted to professional misconduct. We also agreed.
2. Given Ms Fisher's history, it is clear her place of work posed a potential risk of further inappropriate conduct because it might provide her with access to Tramadol or other like drugs. If she had a re-lapse in her addiction, that risk would be heightened and potentially give risk to further inappropriate conduct.
3. The facts surrounding the breach of this condition warrant repetition and elaboration as they demonstrate the many times Ms Fisher misled the Board about her employment.
4. Ms Fisher commenced work on a permanent part time basis for the radiology company in September 2012. [4] She did not seek approval from the Board for that work.
5. In December 2013, Ms Fisher wrote to the Board about her non-compliance with the urinalysis condition.[5] She also said this:

Another issue is that I have not supplied AHPRA with information regarding my employment. I applied for many Nursing positions while my conditions are enforced however no one will employ me with these conditions on my registration. I have been working full-time but not in the nursing industry, I have to work long hours as the job that I am doing does not pay nowhere as good as nursing. I have to work these long hours because I nearly lost my house when these restrictions were imposed. Working long hours is also the reason that I have not seen Natalie my counsellor (our emphasis).

1. On 17 February 2014, Ms Fisher attended an assessment with Dr Smith. She informed him that she had not worked as a registered nurse since his previous examination in April 2011 and that for the previous 18 months to two years she had worked full-time in a laser hair removal clinic.[6]
2. On 14 April 2014, an AHPRA officer spoke with Ms Fisher about her application for removal of the conditions. In that conversation, Ms Fisher confirmed she was working at the laser hair removal clinic and said her employer required someone with a nursing background.[7]
3. On 4 September 2014, the Board wrote to Ms Fisher regarding her non-compliance with the testing condition. During a subsequent telephone conversation, Ms Fisher confirmed she was working at the laser hair removal clinic and said her employer did not require her to be a registered nurse.[8]
4. Although the IAC decided on 16 October 2014, that Ms Fisher had breached the testing condition, it decided she was not a serious risk to public health and safety requiring immediate action because she had confirmed she was not working as a nurse.[9]
5. On 29 October 2014, Ms Fisher was required to provide details of her employment. On 11 November 2014, she sent an email which provided the name and address of the laser hair removal clinic and said her role was as a 'beautician/laser therapist'.[10]
6. In the context of the investigation into the breach of the employment approval condition, Ms Fisher sent an email to the Board dated 4 April 2016,[11] which included the following:

In regards to this issue, I am most certainly guilty of not notifying AHPRA of my commencing employment with [the radiology company], my reason is that I had applied for many, many jobs in Nursing and every employer with whom I applied for positions with refused to employ me with the conditions that were on my registration. However now in hindsight that was poor judgement on my behalf.

1. As noted above, a failure to comply with any condition is a very serious matter. We regarded it as very serious that Ms Fisher failed to seek approval for employment as required by the condition given the context in which it was imposed. It is obvious the condition was intended to ensure the Board was aware if Ms Fisher was in a work place which might allow her access to opioids. That knowledge was part of the way in which the Board sought to protect the public.
2. As set out above, Ms Fisher outright lied to the Board when asked about her place of work in December 2013 and February, April, September and October 2014. She continued to lie about her employment status by omission for around a further two years. Ms Fisher has agreed that, in October 2014, the IAC placed weight on what it understood to be her place of employment when it decided not to suspend her registration.[12]
3. Because we did not hear from Ms Fisher and did not have expert evidence about the extent of her then opioid addiction, we could assume Ms Fisher's conduct was related to her addiction but were unable to assess the extent to which it affected her decision making at the relevant time.
4. The conduct as described was dishonest and plainly professional misconduct. The conduct demonstrated a disregard for the authority of the Board and Ms Fisher's professional obligations. It revealed Ms Fisher had no insight into the need for her own well-being to be protected and for the public to be protected from her potentially inappropriate conduct. While we accept Ms Fisher had a need to earn an income to support her family, the behaviour showed she placed the privilege of holding registration above the responsibilities which go with the privilege.
5. We were comfortably satisfied the conduct was inconsistent with Ms Fisher being a fit and proper person to hold registration in the nursing profession and so it amounted to professional misconduct under paragraph (c) of the definition.

Allegations (c) to (f) - theft, fraud, attempt to obtain prescription medicine and conviction

1. As is apparent from their descriptions, these four allegations are interrelated and arose from Ms Fisher's conduct in around November 2014. Ms Fisher's actions were the same as which led to her conviction in 2010.
2. Ms Fisher agreed the conduct referred to in allegations (c) to (f) amounted to professional misconduct.
3. The conduct leading to the conviction in 2015 was plainly inconsistent with Ms Fisher being a fit and proper person to hold registration in the nursing profession and so we were satisfied it amounted to professional misconduct within paragraph (c) of the National Law definition.

1. As set out earlier, the parties agreed Ms Fisher should be reprimanded. They parted ways as to other determinations.

1. The Board submitted Ms Fisher's registration should be cancelled and she should be disqualified from re-applying for registration for at least six months.
2. The Board submitted the conduct was serious and warranted cancellation considering:
   • The underlying conduct spanned three years and related to sanctions including criminal charges and suspension of her registration for theft of prescriptions, forgery of prescriptions and addiction to prescription drugs;
   • The conduct had the capacity to undermine the regard in which the profession is held by members of the public such that there was a need for specific and general deterrence;
   • Although the conduct occurred some years ago, it had the potential to place users of health services at risk, and the Tribunal had no reliable information by which it could be assured that Ms Fisher no longer poses such a risk particularly in circumstances where, if she returns to work as a nurse, she would be likely to have access to prescription pads and medications;
   • The conduct was deliberate (as opposed to reckless or inadvertent) and in the context of past similar offending, means the Tribunal must be guarded in its assessment of Ms Fisher's capacity to practice safely; and
   • The fact Ms Fisher has been punished under the criminal law does not obviate the need for appropriate determinations to reflect the seriousness of the conduct.
3. The Board accepted there was no evidence any patient had suffered harm or loss because of Ms Fisher's actions. Nevertheless, it was said to be important that the Tribunal make determinations to deter such conduct generally and to specifically deter Ms Fisher from engaging in like conduct again.
4. The Board explained that, if Ms Fisher's registration were cancelled, at the time of re-applying, she would be required to complete a multi-stage application to satisfy the Board that she was capable of practicing and did not pose an ongoing risk to the public. The Board noted that it could exercise its powers under the National Law to seek further information from Ms Fisher at the time of re-application and could require her to undergo an independent health assessment.
5. As to the term of disqualification, the Board contended it appropriately took into account the fact Ms Fisher had already undergone a period of exclusion from practice but provided for a further period in which she could demonstrate compliance with pharmacotherapy and efforts with rehabilitation.

1. Through her counsel, Ms McKay, Ms Fisher sought a lifting of the current suspension of her registration and the imposition of conditions.
2. Ms Fisher accepted that the conduct was serious in light of her history. She conceded that it was appropriate for the Board to take immediate action and suspend her registration in December 2014. Her counsel stated that, had the conduct been engaged in more recently, Ms Fisher would accept that a further period of suspension would be appropriate. However, she emphasised the fact that Ms Fisher had been suspended for more than three and a half years as to the time of the hearing. The submission was that period of time met the requirements of both specific and general deterrence.
3. As to rehabilitation, Ms Fisher relied on her affidavit evidence which said her addiction was at its height in around late 2014 and that, after the Board suspended her registration, she 'finally' addressed her addiction head on. The affidavit and other materials before us show that she attended her general practitioner in December 2014 and was referred to a drug health service. She attended that service, seeing a psychologist until July 2015 when the psychologist assessed her as no longer needing that support.[13] Ms Fisher has continued to see a specialist nurse practitioner regularly.[14]
4. Since December 2014, Ms Fisher has been taking Suboxone, an opioid replacement drug that blocks the effect of other opioids. She stated that she had not used Tramadol or any other drug not prescribed to her since December 2014. The dose of Suboxone has been gradually reduced over time to what we understand was regarded as a maintenance dose.
5. Ms McKay, counsel for Ms Fisher, submitted we should give weight to the reports from the practitioners at Ms Fisher's drug and alcohol service and pharmacy records showing she had consistently taken the prescribed dose of Suboxone[15] to conclude that Ms Fisher was now drug free and had been so since December 2014.
6. Ms Fisher has made other changes also, including her and her family moving to a small country town where they are better able to live a peaceful and quiet life with less stress as a result.
7. The conditions Ms Fisher proposed be imposed on her included: limitations on the circumstances in which she could take a range of drugs including schedule 3, 4 or 8 drugs; ongoing random urine drug screening and hair analysis; ongoing treatment with a drug and alcohol counsellor and general practitioner and reporting requirements.
8. The Board objected to a number of elements of Ms Fisher's proposed conditions and proposed alternatives. Given our decision it is not necessary to enumerate them.

1. Consistent with the parties' position, we have decided to reprimand Ms Fisher for her past professional misconduct.

Cancellation or return to practice with conditions?

1. As noted above, Ms Fisher gave evidence in her affidavit that she had been drug free since December 2014. She also gave evidence that in October 2015, when she required surgery, she disclosed her past addiction to her treaters and ensured she received no opioids. She did so to avoid falling back into addiction. We had material before us to show Ms Fisher took the same approach to more recent surgery in June 2018.[16]
2. The parties produced a range of test results and expert reports as to urine and hair testing. The hair analysis results, which were testing Ms Fisher's use of Suboxone, appeared to be equivocal despite the pharmacy records which indicated appropriate compliance.
3. There was no dispute that Ms Fisher had not tested positive for Tramadol (or any other opioid) in those tests undertaken since December 2014.
4. The nurse practitioner who Ms Fisher has seen since December 2014, gave a report dated 20 May 2016.[17] It said, relevantly, that as part of her treatment plan, Ms Fisher had provided a urine drug screen at every monthly appointment, none of which had shown anything other than prescribed medication. In letters dated 23 June 2017 and 22 May 2018, the same practitioner expressed the opinion that Ms Fisher had developed enough insight into her problem as well as making significant changes in her life such that he was optimistic about her prognosis.[18]
5. The psychologist who treated Ms Fisher at the drug and alcohol clinic until 2015 wrote a letter on 21 June 2017.[19] He stated Ms Fisher had dealt with the past issues which had led to past substance abuse. He recommended Ms Fisher be able to return to nursing as 'she is no longer at risk of lapse, is stable in life and is in my opinion not a risk to the community'.
6. The Board did not require either the nurse practitioner nor the psychologist to attend for cross examination.
7. Dr Smith assessed Ms Fisher for a third time on 13 November 2017. In his 15 November 2017 report,[20] Dr Smith diagnosed Ms Fisher with 'substance use (tramadol) disorder - currently stable and in remission'. He commented that the long-term prognostic outlook must 'necessarily be guarded given the pattern of recurrent relapsing substance abuse of a serious degree accompanied by professional misconduct.'
8. The Board's counsel suggested we could infer Ms Fisher was not entirely rehabilitated, despite her affidavit evidence - the written submissions referred to an absence of reliable information that Ms Fisher no longer posed a risk and we understood those to stem from Ms Fisher's lack of candour and dishonesty.
9. As the Board did not require Ms Fisher for cross-examination, the proposition that she was not entirely rehabilitated was not put to her. Similarly, as the parties elected not to call the experts regarding the hair testing that had been done, we were unable to make findings of fact as to Ms Fisher's use of Suboxone.
10. In those circumstances, we have given weight to the unchallenged evidence Ms Fisher gave about her drug free status since December 2014 which is consistent with the urine test results presented to the Tribunal and apparently available to her specialist drug treatment service. We give weight to the evidence about the steps Ms Fisher has taken to ensure her recent surgery could not lead to a lapse into addiction.
11. Ms Fisher's 3 July 2017 affidavit[21] included material relating to her wish to resume nursing. At paragraphs 36 and 37 she said this, after describing non-nursing work she had undertaken from around July 2016:

Whilst I enjoy this work, I have come to realise that my passion is nursing. Initially I was not going to bother attempting to reinstate my registration however, having been abstinent for 2 ½ years has allowed me to take stock of things. I believe I was a good nurse and I cared about my patients. I worked hard, from the bottom up, in the nursing industry over a period of 25 years. I did this, with two young children on my own, because it was what I loved doing. I am deeply disappointed in myself for allowing my career to be damaged as it has, and am not prepared to surrender what I love doing without a fight.

I am confident that I have put my addiction behind me. I have been abstinent, and on a regular and effective treatment plan, for 2 ½ years. The clear mind that my long-term abstinence has brought me has allowed me to truly appreciate the detrimental effect that my addiction had on myself and those around me. I can now appreciate how gripping and destructive my addiction was and I have no desire to return to drug use in any way.

1. We give weight to and accept Ms Fisher's affidavit evidence about how she has overcome her addiction and how she now sees its consequences for her personally, to her career and those around her.
2. What was missing was current evidence which shows Ms Fisher has reflected on the other aspects of her professional misconduct, including her non-compliance with testing obligations which were well known to her and her repeated dishonesty about her employment from December 2013 onwards.
3. As we did not hear from Ms Fisher, we only had recourse to what she said in her correspondence with the Board and her 12-month-old affidavit in this proceeding as to her insight into the professional breaches she had admitted to.
4. In her affidavit, Ms Fisher referred to how she obtained the job at the radiology company. Ms Fisher said she knew it was wrong to have done so without disclosing the conditions on her registration but that at the time she felt it was her only option as she needed a job and that the radiology company did not check her registration. She went on to say that she did not notify the Board she had commenced work as she knew she would then be required to disclose the conditions on her registration. Ms Fisher surmised that would have led to the termination of her employment. Ms Fisher stated that, 'for the same reason', she lied to AHPRA when asked about whether she was working as a registered nurse.
5. As to her failure to comply with urinalysis on 7 August 2014 and 9 September 2014, Ms Fisher stated in her affidavit that she did not have a specific recollection of those occasions and noted that was a time when her husband was ill and under treatment and she was struggling with her addiction.
6. Dr Smith's 15 November 2017 report contained these comments which we consider relevant to Ms Fisher's insight:

There was no evident gross cognitive dysfunctioning. Although her general judgement and insight appeared sound, it was apparent to the undersigned that Ms Fisher overstated her wish/passion to work capably as a nurse on the one hand and on the other, to either understate or not fully comprehend the seriousness and ethical aspect of her manifest misconduct over several years.

Although she was optimistic and motivated to work as a nurse, it was my impression that she has continued to understate the seriousness of her addiction, its relapsing nature and the ethical dimension of her conduct, notwithstanding reported abstinence (corroborated by her treatment providers) over the past few years.[22]

1. We have given weight to the fact Ms Fisher made all appropriate admissions to Victoria Police and in this proceeding.
2. However, there were no other paragraphs in her affidavit or other current evidence in which Ms Fisher demonstrated she understood the seriousness of her failure to comply with the Board imposed urinalysis condition or the requirement she obtain approval for employment.
3. As a result, we have been unable to assess what understanding Ms Fisher currently has of her professional obligations as they are owed to patients and the profession. We have no material before us to rely on to show Ms Fisher has reflected on and understood the impact conduct of the kind described in the allegations could have had on patients - either because she was drug affected while working as a nurse or because she could have prejudiced a patient's care by her theft of prescriptions. She has shown no understanding of the impact of actions such as these on the standing and reputation of the profession. There is no acknowledgement of the significance of her history of non-compliance and lack of candour with the Board.
4. Aside from how she has managed subsequent surgery, we have no evidence about how Ms Fisher would manage external stresses and avoid returning to drugs to assist her. Ms Fisher mentions in her affidavit an expectation that she could obtain work in her local area if her registration was reinstated. Her written submissions as to proposed conditions referred to her working in aged care or in a private clinic or regional hospital. Ms Fisher has said nothing about how she would safely manage being again given access to medication and prescriptions in any of those settings.
5. Ms Fisher's counsel submitted that 'the person she is now can be wholly distinguished from the person she was during the period of misconduct (and the greater period of her addiction).' By electing not to give evidence, Ms Fisher did not give us a chance to properly assess that proposition.
6. We have considered whether we ought to suspend Ms Fisher's registration for a further period and impose conditions on her return to practice instead of cancelling her registration.
7. As discussed below, Ms Fisher has already been out of the profession for more than three and a half years. That period seems to us to be consistent with other like cases.
8. Conditions to facilitate return to practice are usually fashioned after assessing matters such as insight, remorse and current risk factors. While arguably we could have relied on the material before us to settle on conditions in respect of Ms Fisher's past addiction, for the reasons set out above, that material was not sufficient to allow us to address all aspects of her conduct. The level of insight displayed by a practitioner is often relevant to whether education or mentoring conditions are appropriate.
9. Had we heard evidence of the kind mentioned in the preceding paragraphs, we might have been able to give more favourable consideration to reinstating Ms Fisher's registration and imposing conditions which would maintain her good health and protect the public.
10. In Ms Fisher's case it is apparent conditions and supervision have not worked in the past. We have not been persuaded we ought to take that path again.
11. As a matter of general deterrence, we consider it necessary to ensure other practitioners do not assume they will be able to continue to practice with conditions where they have a significant history of non-compliance or dishonest dealings with the Board.
12. To ensure Ms Fisher is deterred from engaging in any similar conduct again and to ensure the profession is aware of the risks they take if they engage in criminal behaviour or persistently fail to comply with express professional obligations, we have decided it is appropriate to cancel Ms Fisher's registration.

Disqualification from re-applying for registration

1. The Board submitted we should impose a period of six months before Ms Fisher could re-apply for registration, so she could provide further evidence she was drug free. As discussed above, on the evidence before us, we are currently satisfied Ms Fisher has not used opioids since around December 2014. Accordingly, we do not consider a further period out of the profession is needed to address Ms Fisher's past substance abuse.
2. The parties referred us to two decisions which have partially similar factual circumstances.[23] We noted that in those cases, the nurse had been suspended from practice for two to three years in total. To date, Ms Fisher has been suspended from practice for more than three and a half years. We consider that the imposition of a further period during which Ms Fisher cannot apply for registration to practice would be unduly punitive.
3. For these reasons, we decline to impose a period of disqualification.
4. Having noted the registration application process described by the Board, Ms Fisher will need to persuade the Board at the time of her application that she remains drug free and is a fit and proper person to be registered. The Board may require her to address the range of matters set out in these reasons including how she would meet all her professional obligations.

[1] See Medical Board of Australia v Janz [2011] VCAT 1026 at paragraphs 358 to 373; and Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 at paragraphs 60 to 61.

[2] Medical Board of Australia v Fox (Review and Regulation) [2016] VCAT 408 at paragraph 6 as confirmed in Medical Board of Australia v Willcourt [2018] VCAT 1032 at paragraph 13; and Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46 at paragraphs 46 to 29.

[3] File note made on 15 August 2014, Tribunal Book, page 120.

[4] Letter of offer dated 11 September 2012, Tribunal Book, page 136.

[6] Report dated 20 February 2014, Tribunal Book, page 98.

[9] See paragraph 23 of the Statement of Agreed Facts.

[12] Paragraph 23 of the Statement of Agreed Facts.

[14] Tribunal Book, pages 224, 306 and 368.

[23] Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403; and Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99.