Nursing and Midwifery Board of Australia v Harris (Review and Regulation) [2021] VCAT 496

1. Between 16 May 2016 and 13 September 2016, the respondent engaged in professional misconduct within paragraphs (a), (b) and (c) of the definition of 'professional misconduct' in s 5 of the Health Practitioner Regulation National Law (Victoria)[1] (National Law) in that she misappropriated fentanyl from her employer, the Epworth Eastern Private Hospital.
2. Between 16 May 2016 and 23 September 2016, the respondent engaged in professional misconduct within paragraphs (a) and (b) of the definition of 'professional misconduct' in s 5 of the National Law in that she failed to comply with applicable statutory obligations relating to storage, record keeping, self-administration, and destruction of schedule 8 poisons.
3. With the agreement of the respondent, the respondent has an impairment as defined in s 5 of the National Law.

1. Under s 196(2)(a) of the National Law, the respondent is reprimanded.
2. Under s 196(2)(e) of the National Law, the respondent's registration is cancelled with effect from the date of these orders.

1. We made findings and orders and gave outline oral reasons at the hearing on 15 April 2021. These are our more detailed written reasons.
2. In this case, the Nursing and Midwifery Board of Australia (the Board) referred three allegations to VCAT concerning Ms Jasmine Harris, a registered nurse.
3. Two of the allegations related to Ms Harris' conduct in the period May to September 2016 when she was working as a nurse in the cardiac catheter laboratory (Cath Lab) of the Epworth Eastern Private Hospital (Epworth Eastern). The third is an allegation that she has an impairment.
4. Section 5 of the National Law defines 'impairment' to mean:

the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - ‑

(a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession ...

1. The parties provided us with agreed facts, proposed findings, and proposed determinations. Two matters were in dispute: an issue about the characterisation of the conduct in the first allegation; and whether, in addition to a reprimand and cancellation of Ms Harris' registration, we should also impose a disqualification period.
2. In summary:
   • Ms Harris accepts that, between 16 May 2016 and 13 September 2016, she engaged in professional misconduct within paragraphs (a) and (b) of the definition of 'professional misconduct' in s 5 of the Health Practitioner Regulation National Law (Victoria) (National Law), in that she misappropriated fentanyl from her employer, the Epworth Eastern (Allegation 1). We agreed and made that finding.
   • She did not agree with the Board's submission that the conduct in Allegation 1 should be characterised as professional misconduct within paragraph (c) of the definition of 'professional misconduct' in s 5 of the National Law. We were satisfied that it should be characterised as professional misconduct within paragraph (c) and made that finding.
   • Ms Harris accepts that, between 16 May 2016 and 23 September 2016, she engaged in professional misconduct within paragraphs (a) and (b) of the definition of 'professional misconduct' in section 5 of the National Law in that she failed to comply with applicable statutory obligations relating to storage, record keeping, self-administration, and destruction of schedule 8 poisons (Allegation 2). We agreed and made that finding.
   • Ms Harris accepts that she has an impairment under section 5 of the National Law, in that she has been diagnosed with a substance use disorder that detrimentally affects, or is likely to detrimentally affect, her capacity to practise as a registered nurse. We were satisfied that the finding was appropriate and that we could make it.
   • The parties agreed that the following sanctions be imposed:
     • cancellation of Ms Harris' registration; and
     • Ms Harris be reprimanded.
   • The Board submitted that a disqualification period of 8-10 months, during which Ms Harris may not apply for registration as a nurse, should also be imposed. Ms Harris submitted that no disqualification period should be imposed. We were satisfied that imposing a disqualification period was neither warranted nor appropriate in the particular circumstances of this case.
3. We set out next the agreed facts as provided by the parties and then summarise our reasons for the findings and orders we made.

1. Ms Harris was employed as a nurse in the Cath Lab of the Epworth Eastern from a period commencing before May 2016[2] until her resignation on 4 October 2016.
2. Between 16 May 2016 and 13 September 2016, Ms Harris misappropriated approximately 55 ampoules of fentanyl from the Epworth Eastern, and then stored the fentanyl, self-administering some of it and discarding the rest.
3. During the period in which Ms Harris misappropriated fentanyl from the Epworth Eastern, and then stored and used or discarded that fentanyl, she failed to comply with her obligations under applicable laws relating to storage, record keeping, self-administration and destruction of fentanyl.
4. Such laws include the Drugs, Poisons and Controlled Substances Act 1981 (Drugs Act) and the Drugs, Poisons and Controlled Substances Regulations 2006 (Drugs Regulations),[3] for example:

(a) section 73 of the Drugs Act (possession of a drug of dependence);

(b) section 75 of the Drugs Act (use of a drug of dependence);

(c) section 78 of the Drugs Act (obtaining drugs of dependence by false representation);

(d) regulation 40 of the Drugs Regulations (details of record keeping);

(e) regulation 42 of the Drugs Regulations (accuracy of record keeping);

(f) regulation 48 of the Drugs Regulations (self-administration of drugs and poisons restricted); and

(g) regulation 50 of the Drugs Regulations (wilful destruction prohibited).

1. On approximately 16 September 2016, staff of the Epworth Eastern became aware that an unusually large number of fentanyl ampoules had been reported as broken in the Cath Lab's 'Schedule 8 Drug of Addiction Register' (Register).
2. Between approximately 18 September 2016 and 20 September 2016, staff of the Epworth Eastern commenced an audit of its Registers (Audit) and discovered that it contained a number of discrepancies.
3. The Audit revealed that Ms Harris' signature was common to a number of the discrepancies in the Register, including the following:

(a) ten instances where the balance in the Register did not reflect the last entry on the previous page, such that 10 ampoules of fentanyl 100mcg and one ampoule of fentanyl 500mcg were unaccounted for; and

(b) in the records relating to nine deliveries, there were differences in the number of fentanyl ampoules recorded as having been signed in to the Epworth Eastern facility compared to the number of fentanyl ampoules recorded in the Slade Pharmacy delivery receipts, such that 45 ampoules of fentanyl 100mcg were unaccounted for.

1. In a letter from the Epworth Eastern dated 21 September 2016, the discrepancies identified during the Audit were put to Ms Harris for her response. The discrepancies put to Ms Harris included those set out above as well as a number of others. All the discrepancies were said, in the letter, to have occurred between May and September 2016 and Ms Harris was alleged to have been 'directly responsible' for each of them.
2. In a meeting with the Epworth Eastern on 23 September 2016, Ms Harris admitted to taking fentanyl by deceit, initially to stockpile it to commit suicide and then to use to make herself feel better. At this meeting, Ms Harris admitted that she had removed fentanyl from the Epworth Eastern, but that she could not say for sure that she had removed all the fentanyl as alleged. Ms Harris stated that she had discarded any remaining fentanyl.
3. On 23 September 2016, Louise O'Connor, Executive Director of the Epworth Eastern, made a notification to the Australian Health Practitioner Regulation Agency (AHPRA) regarding Ms Harris' conduct in misappropriating fentanyl from the Epworth Eastern. The notification referred specifically to the Register discrepancies set out above and stated that Ms Harris' signature was common to each. In the notification, Ms O'Connor advised AHPRA that Ms Harris had disclosed to the Epworth Eastern that she had been suffering from mental health issues, including depression and hearing voices.
4. On 23 September 2016, the Immediate Action Committee (IAC) of the Board proposed to take immediate action in relation to Ms Harris' registration, to protect public health and safety, under s 156 of the National Law.
5. In a letter dated 26 September 2016, AHPRA wrote to Ms Harris in relation to the IAC's proposal to impose conditions on Ms Harris' registration. AHPRA's letter to Ms Harris and:

(a) put to Ms Harris, for her response, the Register discrepancies set out above and the fact that her signature was common to each;

(b) referred to Ms Harris' admissions to the Epworth Eastern that she had taken, and subsequently used, the fentanyl; and

(c) referred to Ms Harris' disclosures to the Epworth Eastern that she suffered from depression and hearing voices.

1. In a letter to AHPRA in response, dated 28 September 2016, Ms Harris:

(a) noted the allegations put to her by AHPRA and confirmed that she had admitted to her employer that she had misappropriated medication and misused the medication outside of work hours;

(b) stated that she been advised by her employer to seek medical assistance and psychological support in relation to her health issue with the misuse of fentanyl; and

(c) stated that she had heeded this advice, consulted with her GP, obtained a referral and seen a psychiatrist, and attended the Nurses and Midwives Health Program at St Vincent's Health in Fitzroy and had drug counselling.

1. On 29 September 2016, following consideration of the submissions made by Ms Harris, the IAC decided to take immediate action in relation to Ms Harris' registration under s 156 of the National Law, by imposing conditions on her registration, including a condition that she must not practise as a nurse.
2. Also on 29 September 2016, the Board decided to commence an investigation into Ms Harris' conduct under s 160(1) of the National Law and to require Ms Harris to undergo a health assessment under s 169 of the National Law.
3. On 8 November 2016, Ms Harris provided samples for a urine drug screen and hair drug screen. The urine drug screen returned a normal result and the hair drug screen returned a finding of 'Fentanyl 26 pg/mg', which was said to be consistent with Ms Harris' declared used of fentanyl '100mcg-300mcg', '1-3 days per week 6 weeks', with the last use on 15 September 2016.
4. On 15 November 2016, Dr Helen Sweeting conducted a health assessment of Ms Harris. Dr Sweeting's findings, in relation to that assessment, include the following:

(a) Ms Harris met the DSM-5 criteria for an opioid use disorder, and that these criteria would more likely be weighted in favour of psychological reliance on the drug rather than a physical one;

(b) hair analysis findings suggested evidence of fentanyl in small amounts, possibly at odds with Ms Harris' reported heavier use of fentanyl in August and September 2016;

(c) qualities in Ms Harris' hair (such as hair colour) may have made it difficult for the drug to be incorporated into her hair;

(d) Ms Harris reportedly stockpiled fentanyl for the purposes of having access to a treatment that would allow for an effective suicide attempt - it was important Ms Harris had access to treatment in order to reduce her anxiety about the possibility of not being able to end her life should living became intolerable; and

(e) Ms Harris appeared physically well enough to be able to return to work; however, concerns that she had raised regarding her intended use of fentanyl needed to be carefully acknowledged. Her role within the cardiac catheter setting was a highly specialised role and one that required considerable skill. The role appeared to have placed demands on her that she was unable to meet, and her background of a treatment resistant depression was one that needed to be taken into account.

1. Ms Harris disclosed, during her health assessment, that she used the misappropriated fentanyl during June 2016, ceasing use in July 2016 and resuming use in August and September 2016. Ms Harris reported injecting fentanyl intravenously, using larger quantities over time, and up to 300mcg of fentanyl per day in some instances. She disclosed stockpiling and using the medication but also, on occasions when she was feeling better, discarding the medication.
2. On 8 March 2017, Ms Harris and her legal representative had a meeting with AHPRA, during which Ms Harris took no issue with the results of the assessment by Dr Sweeting.
3. In a letter dated 22 June 2018,[4] AHPRA wrote to Ms Harris, asking for Ms Harris' comments on the number of fentanyl ampoules she was alleged to have misappropriated, and the methods of misappropriation she was alleged to have used. The letter also requested a response as to:

(a) whether she had a health impairment that detrimentally affects or is likely to detrimentally affect her capacity to practise as a registered nurse; and

(b) whether, over the period from 16 May 2016 to 13 September 2016, she had misappropriated fentanyl from her employer.

1. In a report dated 13 July 2018, Dr Denise Chao, Banyule Community Health, advised as follows in respect of Ms Harris:

(a) Ms Harris had been diagnosed with a substance use disorder that was not in remission or resolved;

(c) while Ms Harris had an active substance use disorder, she would not be fit to return to practise as a registered nurse;

(d) Ms Harris would not be fit to practise until her substance use disorder is in remission: it was difficult to say when that would be; and

(e) on returning to practise, Ms Harris would need certain conditions or restrictions to practise, which may include close monitoring or supervision, drug testing and limited access to certain medications.

1. In a letter dated 16 July 2018, Ms Harris responded to AHPRA's letter of 22 June 2018:

(a) enclosing the report by Dr Chao referred to in paragraph [28] above, and advising that she is currently suffering from a substance use disorder, for which she is consulting with a GP specialising in addiction medicine in order to achieve a remission;

(b) noting that she was not currently fit to return to her nursing work;

(c) admitting that she had misappropriated fentanyl from her employer during the period from 16 May 2016 to 13 September 2016 and referring to the report of the Audit by the Epworth Eastern and the methods of appropriation alleged in that report, including those methods set out in paragraph [14] above; and

(d) admitting that she self-administered the fentanyl when she was off-duty or on her days off.

1. On 20 December 2018, the Board, having formed the belief that Ms Harris had behaved in a way that constitutes professional misconduct, determined to refer the matter of Ms Harris' conduct to the Tribunal pursuant to s 193(1) of the National Law. The Board also determined to refer to the Tribunal the question as to whether Ms Harris has a health impairment.
2. At the request of Ms Harris' legal representatives, Dr Danny Sullivan, Consultant Forensic Psychiatrist, provided a report dated 26 October 2019 following a consultation with Ms Harris on 9 October 2019. In Dr Sullivan's opinion:

(a) Ms Harris is not currently capable of practising as a nurse because it remains unclear whether her substance use disorder is in remission (it appears that her mood disorder is under adequate control);

(b) Ms Harris' insight into the need to maintain an ongoing therapeutic focus on substance use is limited;

(c) Ms Harris' behaviour, at the time of the alleged misconduct, was likely to have been influenced by her reported significant mood disorder and a propensity to substance abuse/dependence;

(d) Ms Harris' mood disorder and substance use were likely to have impaired her capacity to exercise appropriate judgment to a moderate degree, and mildly impaired her ability to think clearly and to make calm and rational choices. There is no indication that her mood disorder or substance use disinhibited her, obscured the intent of her conduct or affected her ability to appreciate its wrongfulness.

1. We note here that Dr Sullivan's report, summarised above, was of considerable assistance in this case. It supported a finding that Ms Harris continues to suffer from the impairment identified by Dr Sweeting in her 2016 health assessment report and confirmed by Dr Chao in her 2018 report. It also supported the view that Ms Harris' mental health was a mitigating factor in this case, reducing, although not extinguishing, her moral culpability for the conduct she engaged in.

1. Section 5 of the National Law defines 'professional misconduct' to include:

(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. We were comfortably satisfied that the conduct in Allegations 1 and 2 was professional misconduct within paragraphs (a) and (b), as agreed by the parties.

1. For the following reasons, we were also satisfied that the conduct in Allegation 1 constituted professional misconduct under paragraph (c).
2. The conduct involved:
   • repeated thefts of schedule 8 poisons over a period of months;
   • misuse of her position as a nurse;
   • deception of the hospital and breach of trust; and
   • breach of well-known obligations under laws to do with possession, use, safe-keeping and storage of drugs of dependence, that are in place to protect patients and the wider community.
3. Further, the conduct had the potential to endanger the safety of others and the practitioner herself. It is, objectively, conduct liable to bring the nursing profession into disrepute.
4. In recent years, there have been differing opinions expressed in the cases about whether paragraph (c) requires the Tribunal to consider exclusively objective factors (the nature and seriousness of the conduct itself), a hybrid combination of objective and subjective circumstances (the conduct considered in the light of the practitioner's personal circumstances at the time including mental health and factors such as intent, insight and remorse) or subjective factors. The following cases illustrate the differing approaches.
5. In Medical Board of Australia v Cukier [2017] VCAT 109 (Cukier), at [32]-[46],[5] the Tribunal took into account a combination of objective and subjective circumstances, emphasising that the focus is clearly on the conduct. The Tribunal also observed[6] that the matter was not free from doubt and other decision-makers might take a different approach.
6. The Tribunal in Cukier ultimately found that the conduct concerned fell within paragraph (c).
7. In Nursing and Midwifery Board of Australia v DDN [2019] VCAT 2038 (DDN),[7] referred to in Ms Harris' submissions, the Tribunal considered Cukier and other cases[8] and expressed the view, at [49], that the task to be undertaken was:

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

1. The Tribunal in DDN was satisfied that the respondent's then mental state provided the reason and the context for her poor choices and the misappropriation of the medication, and was not satisfied that the conduct fell within paragraph (c).
2. In Medical Board of Australia v Arulanandarajah [2021] VCAT 85 (Arulanandarajah),[9] at [19]-[48], the Tribunal expressed the following views:
   • Determining whether a practitioner has engaged in professional misconduct under paragraph (c) does not require a determination that the practitioner is presently a fit and proper person to hold registration.
   • All that is required is a determination of whether the conduct is inconsistent with being a fit and proper person to hold registration.
   • The words used allow for the possibility that while the conduct engaged in was inconsistent with being a fit and proper person to hold registration, the practitioner himself was not in fact unfit at that time.
   • In any event, the words used allow for the possibility that the practitioner has subsequently become a fit and proper to hold registration by the time of the hearing. That will be a separate inquiry, relevant to determinations.
   • The task being undertaken is to characterise the conduct.
3. Previous decisions of the Tribunal do not represent authority for a proposition and do not bind subsequent panels, although consistency is of course desirable. The particular facts of the case will always provide important context for the views expressed. In addition, the Tribunal's approach may be refined as different examples come before it of conduct that might fall within paragraph (c).
4. After considering the cases referred to, our own view is closest to the views expressed in Arulanandarajah, for the reasons expressed in that case: that the focus must be on the conduct - viewed objectively, is it conduct which is inconsistent with being a fit and proper person to hold registration?
5. We agree that a finding that conduct falls within paragraph (c) does not lead automatically to a conclusion that the practitioner is not a fit and proper person to hold registration. As a separate inquiry, the Tribunal must determine what the consequences should be - what determinations should be made under s 196(2). That will include consideration of the practitioner's current fitness to practise. In addition to the objective nature and seriousness of the conduct, there may also be a range of mitigating factors which will be relevant to determinations, as there were in this case.

1. A finding of impairment is one of the decisions VCAT can make under s 196(1)(b) of the National Law, after 'hearing a matter about a registered practitioner' (emphasis added).
2. Both parties agreed to the Tribunal making that finding (in addition to the findings of professional misconduct) and agreed that the Tribunal had power to do so. Of course, the Tribunal must itself be satisfied that it has power to make particular findings or orders.
3. In its written submissions, the Board referred to the recent decision in Nursing and Midwifery Board of Australia v Pickett [2020] VCAT 1427 (Pickett), where the Tribunal raised (but did not need to answer) the question of whether it could make a finding of impairment, where the Board had referred the matter under s 193(1)(a), rather than s 193(1)(b), of the National Law.
4. In Pickett, the Tribunal queried whether a finding of impairment was able to be made where the matter had been referred to it by a Board without having first gone to a panel and then been referred to the Tribunal under s 193(1)(b), by the operation of s 190(a), which requires a panel to stop hearing a matter and require the National Board to refer the matter to a responsible tribunal where the practitioner requires this to happen. The Tribunal's observations on the issue are at [39]-[47].
5. The Tribunal did not need to decide the question, as it was not satisfied there was sufficient up to date evidence on the factual issue. Mr Pickett did not engage with the process and did not admit he had an impairment. The Tribunal considered it was not appropriate to engage in a detailed analysis of the issue where it had received submissions from one side only.
6. We received detailed submissions in this case and are satisfied that we can make a finding of impairment in this case. The following discussion of our reasons essentially adopts the submissions made by the Board in this case, with which we agree.
7. National Boards refer matters to VCAT, and other responsible tribunals, under s 193 of the National Law.
8. The way the expressions 'a matter' and 'the matter' are used in s 193, and in the other provisions setting out pathways for referral to a responsible tribunal, supports the view that 'a matter' means the whole matter rather than the individual issues that might arise.
9. Section 193 provides that a Board must refer 'a matter' about a registered health practitioner to a responsible tribunal in certain circumstances:
   • Under s 193(1)(a): for a registered health practitioner, where the Board reasonably believes:
     • the practitioner has behaved in a way that constitutes professional misconduct; or
     • the practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular; or
   • Under s 193(1)(b): for a registered health practitioner or student, where a panel established by the Board requires the Board to refer the matter to a responsible tribunal.
10. Section 190 sets out the circumstances where a panel established by the Board, whether a health panel[10] or a performance and professional standards panel,[11] must stop hearing 'a matter' and require the relevant National Board to refer 'the matter' to a responsible tribunal under s 193:
    • Under s 190(a): the practitioner or student the subject of the hearing asks the panel for 'the matter' to be referred to a responsible tribunal under s 193; or
    • Under s 190(b): if the subject of the hearing is a registered health practitioner:
      • the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct; or
      • the panel reasonably believes the evidence demonstrates the practitioner's registration may have been improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular.
11. As can be seen from the above, the mandatory trigger for referral to a responsible tribunal in s 190(b) and s 193(1)(a) is the same: a reasonable belief that a registered health practitioner has engaged in professional misconduct, or that their registration may have been improperly obtained.
12. For panels, that mandatory requirement applies whether the panel is a health panel hearing a matter about a possible impairment, or a performance and professional standards panel hearing a matter about the conduct of a practitioner or the way they are practising.
13. For a National Board, that mandatory requirement applies whatever other allegations or issues might be before it concerning a registered practitioner, including the question of whether the practitioner may have an impairment.
14. We agree with the Board's submission that s 193(1) does not limit the referral to allegations of professional misconduct or improperly obtaining registration, rather, a belief they may have occurred triggers the requirement to refer 'the matter'. Further, reading it in that limited way would have the unsatisfactory consequence in a case of a health panel hearing that the panel would have to stop hearing 'the matter', but only conduct or registration issues could be referred, leaving health issues unresolved.
15. The wording of s 196 also supports the view that it is the whole matter that is referred. Section 196(1) sets out the findings a responsible tribunal may make, including conduct findings and that the practitioner has an impairment, 'after hearing a matter about a registered health practitioner'. It does not restrict a finding of impairment to a matter that has been referred to the responsible tribunal under any particular pathway or any part of s 193(1).
16. It appears that findings of impairment are commonly made in some other Australian jurisdictions in similar circumstances. The Board referred to several cases in New South Wales where findings of misconduct and impairment were made,[12] and one in Queensland [13] where the tribunal criticised the referring entity for not referring the question of whether the practitioner had an impairment.
17. Some caution is required in applying cases from other jurisdictions. The National Law is not uniformly adopted, and it is usually necessary to check whether the legislative provisions are the same. The legislative regimes in NSW and Queensland to do with referral to the respective tribunals are not the same as those applying in Victoria, and the cases referred to do not help with interpretation of s 193. In contrast, the Western Australian legislation, the Health Practitioner Regulation National Law (WA) Act 2010, is close to the Victorian legislation, and the provisions of the National Law adopted, in this and other respects.
18. Nevertheless, we are satisfied that the finding can be made in disciplinary proceedings under the National Law as it applies in Victoria, although, for whatever reason, it is rare for VCAT to be asked to do so.
19. Issues to do with a practitioner's health are, however, often raised as relevant to considering appropriate determinations (consequential orders under s 196(2) that follow adverse findings). Depending on the circumstances, health issues, including psychological health issues, may be a relevant mitigating factor, or explain, if not excuse, misconduct by a practitioner. They were relevant in this case.
20. We turn to determinations now.

1. The parties agree that the following sanctions be imposed:

1. The Board considered that a disqualification period of 8-10 months, during which Ms Harris may not apply for registration as a nurse, should also be imposed. Ms Harris considers that no disqualification period should be imposed.
2. We considered that there was no utility in a disqualification period in this case. Protection of the public is addressed by cancellation. Specific and general deterrence are served by the consequences for Ms Harris of her conduct - she has not been able to practise for nearly five years and her registration is now cancelled. She will face considerable obstacles in obtaining re-registration, particularly given the finding of impairment. Overcoming the substance use disorder, which is not yet in remission, will require time, determination and support - and it will be a matter for the Board to assess whether she has done so, if and when she makes an application for registration.
3. There are also considerable mitigating factors here. Apart from Ms Harris' mental health at the time of the conduct, and her cooperation with the investigation and these proceedings, there has been significant delay in bringing the matter to the Tribunal. We note that the immediate action decision stayed in place for three years before the Board referred the matter to the Tribunal.
4. Immediate action is intended to be short term and, particularly if it takes the form of suspension, a Board has a commensurate obligation to conclude the investigation and refer allegations to the Tribunal as soon as it can.
5. In this case, Ms Harris admitted her wrongdoing almost immediately, and repeatedly over the years of the investigation, as the agreed facts show. Whatever caused the delay, she has waited an inordinately long time for this matter to be resolved.

[1] As set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and adopted in Victoria by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] Ms Harris came to Australia from New Zealand in 2009 and worked at the Epworth Eastern from 2014.

[3] We note that Ms Harris was not charged with any offences under the Drugs Act and Drugs Regulations and did not face criminal proceedings. She was nevertheless in breach of the statutory obligations.

[4] We note here that 15 months had passed since the March 2017 meeting, that Ms Harris had already admitted misappropriating fentanyl, and say more about delay generally in relation to determinations.

[5] A case involving sexual assault of patients by a doctor.

[7] A case involving misappropriation of medications by a nurse.

[8] Including Medical Board of Australia v Wong [2015] QCAT 439.

[9] A case involving sexual assault of a former colleague in a social context by a doctor.

[10] Established under s 181. Section 181(1) provides that a Board may establish a health panel if, because of a notification or any other reason, the Board reasonably believes that a registered health practitioner or a student may have an impairment and the Board decides it is necessary or appropriate for the matter to be referred to a panel. This is not the only option where a Board believes a practitioner or student may have an impairment. See e.g. s 169 (require the practitioner to undergo a health assessment); and s 178 (caution, accept an undertaking or impose conditions).

[11] Established under s 182. Section 182(1) provides that a Board may establish a performance and professional standards panel if, because of a notification or any other reason, the Board reasonably believes that the way a registered health practitioner practises is or may be unsatisfactory, or the registered health practitioner's professional conduct is or may be unsatisfactory.

[12] Including Health Care Complaints Commission v Orr [2015] NSWCATOD 124 where the NSW tribunal observed, at [112], referring to Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [11]- [14], that conduct complained of in professional disciplinary proceedings may be the basis of both a finding of misconduct and of impairment

[13] The Health Ombudsman v Riek [2017] QCAT 173.