Under s 5 and 196(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law), the Tribunal finds Ms Barbara Hawthorne engaged in professional misconduct, with respect to the Allegation in this proceeding, as described in the reasons below.

Under s 196 of the National Law, the Tribunal makes the following determinations:

1. Ms Hawthorne's registration by the Nursing and Midwifery Board of Australia (the Board) is suspended for four weeks, commencing on 9 July 2018, ending on 5 August 2018 inclusive.

1. Ms Hawthorne's registration by the Board is subject to the condition that Ms Hawthorne must undertake and successfully complete one-on-one education, with an educator approved by the Board, including a reflective practice report, in relation to the following topics:
   1. The ethical and legal obligations of a practitioner to the Board, including (at a minimum):
      1. the requirement to give the Board notice of certain events ; and
      2. the statements included with an application for annual registration;
   2. The consequences of a practitioner breaching their ethical and legal obligations to the Board, including (at a minimum):
      1. the Board's capacity to regulate the profession ; and
      2. the impact on the reputation of the profession and patient trust.
2. The education must be of a minimum number of four hours in duration.
3. Ms Hawthorne must complete the education within four months of the notice of the Board's approval of the educator and education plan.
4. Within one month of the notice of the imposition of these conditions, Ms Hawthorne must, on the approved form (HPN11):
   1. Nominate a person(s) to be approved by the Board to act as educator; and
   2. Provide acknowledgement that AHPRA will obtain a report from the approved educator at the conclusion of the education.
5. Ms Hawthorne must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and by an education plan outlining the form the education will take and how the topics of the education will be addressed.
6. Within one month of the completion of the education, Ms Hawthorne is to provide:
   1. Evidence of successful completion of the education ; and
   2. A report demonstrating, to the satisfaction of the Board, that Ms Hawthorne has reflected on the issues that gave rise to this condition requiring she undertakes education and how Ms Hawthorne has incorporated the lessons learnt in the education into Ms Hawthorne's practice.
7. Within 21 days notice of the imposition of these conditions, Ms Hawthorne must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, Ms Hawthorne acknowledges that:
   1. AHPRA will contact the senior person and provide them with a copy of the conditions on Ms Hawthorne's registration or confirm that the senior person has received a copy of the conditions from Ms Hawthorne; and
   2. Ms Hawthorne will be required to provide the same form:
      1. within seven days of the commencement of practice at each and every subsequent place of practice ; and
      2. within seven days of each and every notice of any subsequent alteration of these conditions.
8. All costs associated with compliance with the conditions on their registration are at Ms Hawthorne's own expense.

1. Under s 196(3) of the National law, the review period concerning the above condition is six months from the date of these orders.

1. This proceeding results from the Nursing and Midwifery Board of Australia (the Board) under the Health Practitioner Regulation National Law (the National Law)[1] referring allegations against Ms Barbara Hawthorne to VCAT concerning conduct leading to motor vehicle insurance fraud and not reporting to the Board either the charges leading to her conviction or the conviction itself.
2. Ms Hawthorne, now 75 years old. has worked as a nurse since she was 17. She was first registered as a nurse in 1964, and continues to work as a nurse at a Melbourne hospital.
3. She faced an allegation before VCAT arising from her, on 4 September 2014, pleading guilty to and being convicted by the Magistrates' Court of Victoria of the following indictable offences under the Crimes Act 1958 (Vic):

1. obtaining property by deception; 2. attempting to commit an indictable offence of obtaining financial advantage by deception; and

1. obtaining financial advantage by deception
2. The convictions arose from her following conduct, as set out in Court records.
3. On 28 August 2010, Ms Hawthorne bought a black Ford Bronco for $6,000. She insured it for $60,000. On 28 December 2010, Ms Hawthorne reported to Police that the Ford Bronco had been stolen. The next day, she informed her insurer, later providing a false purchase receipt for $60,000. The insurer paid Ms Hawthorne $59,700.
4. On 4 April 2011, a friend of Ms Hawthorne purchased a white Ford Bronco and a green Ford Bronco, the latter for $3,900. On 6 May 2011, Ms Hawthorne registered the green Ford Bronco, indicating that the purchase price was $2,000, thereby evading a duty fee of $1,570. She insured the vehicle for $55,000. On 18 July 2011, Ms Hawthorne reported the green Ford Bronco as stolen and informed her insurer. On 22 July 2011, she sent a false receipt to her insurer regarding this vehicle, which showed a purchase price of $55,000. On 11 November 2011, the insurer denied her claim.

1. On 5 March 2014, Victoria Police charged Ms Hawthorne with offences which led to her conviction.
2. On 4 September 2014, Ms Hawthorne was sentenced to 12 months' imprisonment, wholly suspended for 12 months, and ordered to repay $59,700 to the insurer by instalments of $50 a month. She continues to pay that amount by instalments. The Magistrate commented that, but for her plea of guilty, the Magistrate would have imposed a sentence of 18 months imprisonment, with a non-parole period of six months.
3. On the basis of the above events, the Board alleges Ms Hawthorne engaged in professional misconduct or, in the alternative, unprofessional conduct.
4. The Board submits her conduct in pleading guilty and being convicted as described above, on its own constitutes professional misconduct or, in the alternative, unprofessional conduct under the National Law.
5. The Board also submits that her following conduct also amounts to professional misconduct.
6. Section 130 of the National Law required Ms Hawthorne to, in the seven days after 5 March 2014 (the date on which Ms Hawthorne was charged with indictable offences punishable by 12 months' imprisonment or more), to give the Board written notice of the charges. She did not do so.
7. Section 130 of the National Law also required Ms Hawthorne to, in the seven days following 4 September 2014 (the date of the convictions), give the Board written notice of the convictions. She did not do so.
8. Section 109 of the National Law says an application for renewal of registration must include or be accompanied by a statement that includes, among other things, details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration.
9. On or about 28 May 2015, when applying to renew her registration, Ms Hawthorne did not do so.
10. On 6 August 2015, the Australian Health Practitioner Regulation Agency (AHPRA) received a notification under the National Law from the Hospital where Ms Hawthorne works. The Hospital had discovered, during a criminal records check, that Ms Hawthorne had been convicted as described above, regarding which she had failed to notify her employer.

1. In February 2017, VCAT received the Board's referral concerning this matter. Following a complex procession of directions hearings, administrative mentions and compulsory conferences, on 24 May 2018 the case came before us for hearing. The Board was legally represented. Ms Hawthorne represented herself.

1. We accepted written material provided by way of a Tribunal Book and other documents as evidence in the proceeding. Ms Hawthorne gave some evidence concerning the background to her being convicted and her current circumstances. We heard submissions from the parties.
2. At the end of the hearing, we announced our finding that Ms Hawthorne had engaged in professional misconduct under the National Law, saying we would later give these written reasons concerning that matter.
3. We heard submissions on appropriate determinations and reserved our decision.

1. We find the following occurred, based on the evidence before us, in part summarised above.
2. On 5 March 2014, Ms Hawthorne was charged with nine offences related to her dealings with the motor vehicles in question. The majority of those charges were later withdrawn.
3. She did not report the fact that she had been charged to the Board.
4. On 4 September 2014, Ms Hawthorn pled guilty to and was convicted by the Magistrates' Court of Victoria of the following indictable offences under the Crimes Act 1958 (Vic) described in paragraph 3 above.
5. She did not report the convictions to the Board.
6. On or about 28 May 2015, when applying to renew her registration, Ms Hawthorne did not report the fact that she had been convicted to the Board.

1. Under s 192(1) of the National Law we find with respect to:

1. Ms Hawthorne's conduct in failing to report to the Board that she had been charged; 2. being convicted;

1. twice failing to report to the Board that she had been convicted,;

1. only for the Board to learn of the events in question by way of notification above;

that Ms Hawthorne has engaged in conduct which constitutes professional misconduct under the meaning (a) of the definition of "professional misconduct" in s 5 of the National law. Section 5 defines professional misconduct as unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

1. We regard the very fact of the conviction as such professional misconduct. Ms Hawthorne has admitted to and been convicted of crimes of dishonesty.
2. Ms Hawthorne attempts to explain her innocent role in the events leading to her conduct. However, the reality is she pled guilty concerning her conduct, and obtained an advantage from the Court by way of reduced sentence.
3. It is open to this Tribunal to consider explanations concerning a conviction following a plea of guilty. However, the conviction is strong prima facie evidence of the essential facts on which it was based. A conviction throws a heavy onus on a person who seeks to challenge such facts to show why the facts underlying the conviction should not be accepted.[2]
4. In the face of the nature of her admissions, clearly supported by various documents involved in the purchase and insuring of motor vehicles, Ms Hawthorne's explanations do not persuade us that her conduct should not be characterised as professional misconduct.
5. Turning to Ms Hawthorne's failure to report either being charged or being convicted, as the Board submitted, her repeated transgressions of the National Law obstructed the Board's registration scheme. The Scheme protects the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; s 3 of the National Law.
6. Each of the failures to report to the Board is as instance of unprofessional conduct that, when considered together, amount to conduct which is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience and so constitutes professional misconduct under the meaning (b) of the definition of "professional misconduct" in s 5.

1. Once VCAT has made findings in a proceeding such as this, the next step is to make the determinations necessary to protect the public and uphold the profession's reputation.
2. VCAT's role is not to punish the practitioner, although its decisions may involve a degree of punishment for the purpose of specific deterrence (to deter the individual in question from repeating the misconduct) or general deterrence (to warn others in the profession against such misconduct). VCAT's role is to protect the public and the profession's reputation.[3]
3. We do not see any need to deter Ms Hawthorne from similar conduct in the future. We are satisfied from her evidence that she is unlikely to engage in similar conduct in the future.

1. In the cause of general deterrence and to uphold the reputation of the nursing profession, we reprimand Ms Hawthorne, as is clearly appropriate following these findings of professional misconduct. We note Marks J's comments in Peeke v Medical Board of Victoria[4] that a reprimand is a serious form of censure and condemnation.[5]

1. We have suspended Ms Hawthorne's registration by the Board for four weeks, commencing four weeks after the date of these orders and reasons. The delay gives Ms Hawthorne and her employer time to make arrangements.
2. Our primary focus is on the critical need for registered nurses to be assiduous in reporting any interaction with the criminal justice system in terms of being charged and the court dealing with the practitioner. The whole registration system, for the protection of the public, rests on honest prompt reporting.
3. In the course of meeting Ms Hawthorne during the hearing in this case, she gave straightforward evidence, noting that she was representing herself. We have no reason to doubt that she was anything but candid in describing the current situation.
4. Concerning her conduct, Ms Hawthorne explained to us that she was the unwitting innocent victim of a now former friend who obtained all monetary benefit from the insurance payment made with respect to the first Ford Bronco. She denied receiving any of the money.
5. She spoke of her embarrassment at finding herself in such a situation and of pleading guilty before the Court, given her then ex-friend's denial of any involvement.
6. Her best explanation for failing to report the charges and convictions to the Board related to her coping with the experience, essentially by denying it to herself and keeping it secret from those around her.
7. Ms Hawthorne gave evidence that she is experiencing financial hardship, related to financial loss through her association with the former friend and her role supporting her daughter who suffers severe disability resulting from a car accident

1. We regard the fact that the Magistrates' Court made an order paying off $59,700 to the insurer by $50 a month instalments as supporting evidence concerning Ms Hawthorne's financial position.
2. We note an October 2017 reference from Ms Wendy Turner, Director of Nursing, Hampton Park Women's Health where Ms Hawthorne was employed at that time. Ms Turner described Ms Hawthorne as trustworthy, honest and a loyal employee. She said Ms Hawthorne's warm compassionate personality was valued by all the team members. She spoke of Ms Hawthorne having positive qualities, particularly a commitment to family and friends and a willingness to do anything to help others, unfortunately to Ms Hawthorne's own detriment on this occasion.
3. We note Ms Hawthorne's evidence, not contradicted by the Board, that in her close on 60 years of nursing, she has never been the subject of any complaint to nursing regulatory authority concerning her conduct. We have no reason to doubt that she has made a valuable contribution to the Victorian community over decades of nursing. Her employer is aware of the events in question.
4. In most circumstances, where professional misconduct is found on the basis of events such as are relevant to this proceeding, suspension for some months may be expected, in the cause of general deterrence and to maintain the reputation of the profession.
5. However, given the mitigating circumstances and always remembering that these determinations are not in the nature of punishment, a four-week suspension is appropriate

1. We accept the need, as the Board submitted, for Ms Hawthorne to complete four one-on-one education sessions concerning her ethical and legal obligations to the Board.
2. We are not satisfied, on the basis of the little information before us concerning Ms Hawthorne's insight into her conduct, that Ms Hawthorne has adequately reflected on the situation in which she finds herself. It is appropriate to deliver that education by way of a condition on her registration.

1. Considering Ms Hawthorne's financial circumstances we do not impose a fine. The Court has ordered Ms Hawthorne to pay back a very large sum to the insurer, by very small instalments. We are not persuaded that Ms Hawthorne has any capacity to pay further amounts.

1. Under s 196(3) of the National Law, where VCAT decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition. We have set the review period as six months from the date of these orders.

[1] As set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) adopted in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] See Minister for Immigration & Multicultural Affairs v Ali, from para 41. [2000] FCA 1385.

[3] See Stirling v Legal Services Commissioner [2013] VSCA 374

[4] Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at page 6.

[5] As quoted in Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419 at [52].