1. The complainant bears the onus of proving the alleged conduct. The respondent does not, at any stage of the proceedings, bear any onus. The respondent does not have to prove anything.
2. The standard of proof in professional disciplinary proceedings is well-established. In Palayura Venkatraman Rajagopalan v Medical Board of South Australia,[4] the Full Court of the Supreme Court held that the correct standard of proof was proof on the balance of probabilities. Mulligan J (with whom Cox and Williams JJ agreed) stated:

It was contended before Debelle J that the appropriate standard of proof which should have been applied by the Tribunal was proof beyond reasonable doubt when making findings of fact. Debelle J rejected that contention and concluded that the correct standard of proof was the standard in civil proceedings as explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which, of course, means that in deciding whether a fact has been proved on the balance of probability, the seriousness of the allegation, the inherent unlikelihood of an occurrence of the particular type under consideration or the gravity of the consequence of a particular finding, must affect whether the fact has been proved: see Dixon J at p. 362.

... In my view, Debelle J was correct in his conclusion.

1. The relevant passages from the judgement of Dixon J in Briginshaw v Briginshaw[5] are as follows:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

...

It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty". [citations omitted] This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

1. We have approached this matter in accordance with those principles. We note the gravity of the allegations and the potential consequences for the respondent. We believe that it would be an unusual occurrence for a long-serving nurse to deliberately and dishonestly take the property of a patient. We give weight to the presumption of innocence. Against that background, we have nonetheless reached a state of reasonable and comfortable satisfaction concerning the findings we now make.

1. The parties filed a Statement of Agreed Facts.[6] Importantly, it was agreed that the respondent removed the patient's iPad from Ward S6 and took it to her home. The complainant tendered a Book of Documents on which it relied.[7] There was no objection to its receipt. The respondent did not require any witness to be called for cross-examination. As part of this exhibit, the Tribunal received a video recording of the police attendance at the respondent's home on 6 July 2017. The respondent gave evidence before the Tribunal. During her evidence a carry bag, referred to in the documents as her "rainbow bag", was tendered as an exhibit[8].
2. The primary issue between the parties was whether the respondent had acted intentionally and dishonestly in taking the iPad from the Hospital. A secondary issue was whether the respondent had therefore provided false and misleading information to the police, the employer, AHPRA, or AHPRA investigators. The parties also made submissions as to what should follow from various findings by the Tribunal.

1. We make the following findings of fact.
2. The respondent was employed by the Central Adelaide Local Health Network (CALHN) as a registered nurse. She was rostered to work on a night shift at Ward S6 at the RAH. The shift commenced at 9.00pm on 5 July 2017 and was due to end at 7.30am on 6 July 2017.[9]
3. The respondent was the senior nurse in that ward during the night shift. One of her responsibilities was to care for a patient whom we will refer to as AB. He had been a patient for about 62 days and had undergone a leg amputation. He had multiple medical issues. He was assigned to bed 7 in the "A" area of the ward. The location appears in a diagram at page 202 of Exhibit C1. That bed could be observed through a window from the nurses' station.
4. The patient AB has subsequently passed away. The Tribunal has no direct evidence from him. However, he advised others on 6 July 2017 that he was given the iPad on the previous day. He was excited by the gift and used the iPad until about 12.30am on 6 July 2017. He is reported as saying that he then placed it on his wheelchair which was stationed next to his bed and covered it with his jeans, before going to sleep. When he awoke the next morning the iPad was not there.[10] This hearsay evidence was not challenged and we consider it to be reliable. We accept the evidence.
5. An affidavit has been sworn by AB's son.[11] It confirms that AB's children gave him the gift of the iPad on 5 July 2017. It was valued at about $500.00. The son gave the iPad to his father during the afternoon of 5 July 2017 and then left the Hospital at about 6pm after spending time with his father.
6. The following morning AB contacted his son to advise that the iPad was missing when he awoke that morning. He sounded distressed. The son activated tracking software on the iPad, and it revealed the location of the iPad at what turned out to be the respondent's house. A report was made immediately to police.
7. Police attended the respondent's home. They knocked on doors and windows without any answer. They conducted a check on the ownership of the respondent's vehicle parked outside the premises. They spoke to a neighbour who advised that the occupant was a nurse on night shift who was probably asleep. They continued knocking.[12] Police contacted AB's son and requested that he activate the alarm on the iPad. They could hear an alarm inside the premises. At about this time the respondent answered the door. She appeared "extremely groggy from being woken".[13] The respondent advised the police that she had taken some herbal medicine which may have contributed to this condition. There was no expert evidence as to the significance of this. We bear in mind any effect that the respondent's "grogginess" may have had on her answers in the subsequent interview. It seems to the Tribunal that the respondent was able to give a reasonable account to the police, albeit exhibiting apparent "grogginess" whilst doing so. There were questions to which the respondent was unable to give convincing answers, but that may be because there are no convincing answers. The respondent had similar difficulty in answering those same questions in the Tribunal proceedings.
8. Police advised the respondent that they intended to utilise a general search warrant to search the house. They contacted AB's son and asked him to activate the alarm again. Police could hear the alarm sounding in the kitchen of the house. They located the iPad in a brown paper bag which was on top of other bags in the kitchen. It was AB's iPad.[14]
9. Police activated video recording equipment at 12.37pm. The Tribunal had before it a transcript of what then occurred.[15] We were also able to watch the video.[16]
10. Police confirmed to the respondent that the iPad had been located in a brown paper bag. They indicated that they had reason to believe the iPad had been in ward S6 the previous night and had been stolen from a patient. The respondent was cautioned.[17]
11. When asked to explain how the iPad in the brown paper bag got to be in her house, she answered: "Obviously, I must have put it there."[18] She was asked about her movements at the RAH in relation to the iPad. She said: "I know it was on the floor".[19]
12. The questioning continued:[20]

SAPOL Okay, do you know what your intentions were going to be with the iPad once you picked that up?

SAPOL Did you know the patient it might have belonged to?

1. Would have been [AB's Christian name] because he would have pushed himself over on his wheelchair.

...

SAPOL And what time did you finish up this morning or last night?

SAPOL Okay do you, and what did you do with the iPad once you'd finished work?

SAPOL Okay and do you remember packing the iPad away in your belongings when you left work?

SAPOL Okay so you don't know where you, when you said you were going to put it on the over-way you don't recall putting it on the over-way or anything after that?

1. No because I empty bottles and I was busy and...

SAPOL Okay, why did you put it in the brown bag?

1. I know I had to put his soiled underwear in the bag.

SAPOL Okay so these brown bags are generic bags from the Hospital?

SAPOL All right. So the evidence is there, we are suggesting that you have picked the iPad up from the hospital, put it in your, put it in this brown bag, then put it in your belongings and left work, brought it home with you and now in your house.

SAPOL Unintentionally, okay. Margaret, what time did you find the iPad last night?

1. Yeah before then because after that I had the ...

SAPOL And where did you, where exactly did you find it? You said you found it in ward S6 and you said it possibly belonged to [AB's Christian name], I believe that person to be [AB] who is a patient there.

1. I honestly thought I had put it on his over-way.

SAPOL Okay so if you find property in the hospital

SAPOL Okay so if you find property in the hospital

SAPOL What would be the normal procedure in regards to reporting it or recording it?

SAPOL What about if you don't know who the patient was, would you tell someone?

SAPOL You have had it for, you picked it up at 4, you didn't leave work until 9 so you've had it for 5 hours.

SAPOL 7.30

SAPOL 7.30 so you've had it for 3 ½ hours, I apologise and you haven't told anyone you've had it. I just find that's odd.

1. After further questions and answers which we need not record, the questioning continued as follows:[21]

SAPOL And had you noticed his iPad on previous shifts?

MH I have never seen it.

SAPOL Okay but you had, it was obviously near his property, he indicated to you that it was, belonged to [AB]

1. Well I guessed it belonged to him because it was by his pants that are on the floor.

SAPOL Okay do you understand why your actions today constitutes a theft?

MH Yeah

SAPOL Yep, and what was your intention, what were you going to do with the iPad once you got up today and doing your normal routine?

MH Well if I had found it I would have taken it back.

SAPOL Was that your intention though prior to us attending?

MH Kind of yeah. (??)

SAPOL Although you were a little vague when we came in, you know obviously...

MH Well I've been asleep.

SAPOL Yes I appreciate you've just, we have woken you up but this sort of thing you would think would be pretty clear in your mind, something that you bring home from your workplace that you wouldn't normally bring.

MH I wouldn't know (??)

SAPOL Because it is separate from your handbag, it's something you would physically have to place inside your bag or take with you.

MH It wouldn't fit in my bag.

1. We note a further passage from the interview as follows:[22]

SAPOL Just a couple of other questions I had. You seem to be very vague on actually taking it from the hospital and bringing it home, is that right?

SAPOL Sleep deprived. Do you remember driving home?

1. Until I got to the caravan park up there on Main North (??) Road, I may have forgotten.

SAPOL All right so you're saying that you don't remember?

1. Some mornings I don't remember going through some stoplights.

SAPOL Yeah well let's talk about this morning when you've finished work.

SAPOL Do you know how it got there on top of that bag?

SAPOL Not exactly.

SAPOL Do you know how it got from the ward into your personal possession?

1. Well obviously I must have put it somewhere but I, but I don't remember.

SAPOL How did it come to be in this brown paper bag?

1. As I said obviously I put a spoiled pull-up in it and instead I put that in.

SAPOL There was nothing else in that though.

SAPOL But this doesn't have a soiled pull-up in it so this is a fresh paper bag.

SAPOL It's not stained in any way, it's brand-new so you've put this iPad in this bag. At what point did you do that?

SAPOL So how long after you found this iPad did you put it in the brown paper bag?

1. That would have been just after I put, escorted {AB] to the toilet.

SAPOL Alright so you put it in the brown paper bag.

SAPOL Where did you do that? In the nurses room or the nurses station or where did you do that?

SAPOL Okay so you put it in the bag in the room and then what did you do with it?

SAPOL But you didn't.

SAPOL But you didn't so then what happened to it?

SAPOL If I was to suggest to you that you put it in the brown paper bag so you could easily disguise it and walk out of the hospital and bring it home, what would you say to that?

SAPOL Did you have another bag and this was inside it?

SAPOL Because at some point this morning you have got home in your car, you have taken all your stuff out of your car and this you have either taken from out of one of your many bags or you have carried it just like this and put it there so which one was it?

SAPOL In that bag on the floor, the stripey bag?

SAPOL Just show the camera down there.

SAPOL It's a yeah, stripey handbag.

SAPOL And you're saying you didn't speak to anybody about that iPad at the hospital, whether the patient or any other staff.

SAPOL Okay but you didn't speak to anybody else?

SAPOL Anybody about that? Okay.

SAPOL And do you function normally during a shift? Like do you take any medication to...

SAPOL Okay do you take anything to help you sleep?

1. This morning I did, I took two Swiss herbal relaxants for sleep.

SAPOL Okay so they're not prescribed, just a basic, yep. So there's nothing, you don't have any medical issues that affect your memory?

SAPOL Your cognitive thinking, that sort of thing.

SAPOL You understand what's going on now, what's happened?

SAPOL What time did you get to bed this morning when you got home?

1. I recall being at the petrol station, got some petrol. It would have been about 20 past 9.

SAPOL Okay. Did you mean to take advantage of a wheelchair bound patient with deteriorating health?

1. We note the following points from this interview:

(a) The respondent was indicating very clearly her belief, when she found the iPad on the floor, that it belonged to AB_._ At no point in the interview did the respondent suggest otherwise. At no point did she suggest that the owner was unknown or that she treated the iPad as she would treat lost property where the owner was unknown.

(b) She also stated that when she found the iPad, it was "by his pants that are on the floor".

(c) She also stated that her normal practice, in such situations, was to return the property to the patient. Consistent with that practice, she stated that her intention at the time was to put the iPad on the patient's over-way.

(d) She suggested that she must have placed the iPad in a brown paper bag inadvertently, whilst meaning to place soiled pants in the bag. At no time did she suggest that she had deliberately gone to get a brown paper bag from the sluice room in order to place the iPad in it.

(e) In the passage just quoted, the respondent seems to be suggesting that she had not discovered that the iPad was at her home before the arrival of the police. She stated: "If I had found it, I would have taken it back". When police asked about her intention prior to their attendance, the answer was vague and unconvincing.

(f) Despite having an opportunity to say so, the respondent did not suggest, at any stage of the interview, that she had intended to call the Hospital to report that she had inadvertently removed the iPad.

1. The complainant alleges that the respondent gave false and misleading explanations to SAPOL during the above interview. Essentially, it is asserted that the respondent took the iPad intentionally to her home and that her attempts to provide an innocent explanation for doing so were dishonest. We return to this issue in due course.
2. Counsel for the respondent pointed to the fact that the recording was not activated until the police located the iPad in the respondent's kitchen. Counsel suggested that this left open the possibility that the police had told the respondent who the iPad belonged to before the recording was activated.[23] However, we accept the uncontested evidence of Brevet Sergeant Stuart Davies (C1 page 104). We find that the respondent identified the patient without any prior suggestion from police. We reject the suggestion to the contrary made by the respondent in her AHPRA interview. The respondent, in her evidence before the Tribunal, could not remember what had been said.
3. As a result of the events on 6 July 2017 the respondent was charged by police with one count of theft. This charge was later withdrawn at the request of AB's son after his father had died.
4. A notification was made to AHPRA and explanations were sought from the respondent by both her employer and AHPRA. She responded by email to her employer and this response appears at page 53 of exhibit C1. A copy of the same substantive response was sent to AHPRA.[24] The employer suspended the respondent and subsequently terminated her employment. The Board took immediate action to suspend the respondent's registration.
5. In the responses sent to the employer and AHPRA on 18 and 19 July 2017 respectively the respondent described the relevant events as follows:

Then I noticed bed 7 struggling to get into his wheelchair, I assisted him and wheeled him to the toilet, he was impulsive and unsteady, also aware of the number of previous falls he has had. When finished I gave him a clean pull up pad and assisted him back to bed. Then I went to the toilet myself, after checked on the other patients and noticed an iPad on the floor by the doorway wall, picked it up, then grabbed a brown paper bag and placed it on the bench in the office, heard Rm 30 callout (I can't breathe), that proceeded to a MET call, was busy for some time. By then I wrote my notes all the while keeping an eye on Rm 30. Then I checked the information on Oasis and printed the handouts. I checked the morning's allocation, in between giving pain relief and checking on other patients I packed my bag and put my meal containers in my meal bag.

I did not know that I had also placed the brown paper bag in my rainbow bag until I got home and unpacked it. I placed it next to my bag with the intention of ringing the ward after my shower, but I totally forgot as I was very tired and had taken Panadol with Swiss relax and sleep.

It was not my intention of taking it, I normally place patient belongings in a brown paper bag and put a patient sticky label on.

I am mentally and physically ill just thinking about this terrible mistake I have made.

1. The complainant alleges that these emails also contained false and misleading explanations designed to exculpate the respondent.
2. On 6 December 2018 the respondent was interviewed by investigators from AHPRA.[25] She was advised that it was an offence to state anything to an investigator that is known to be false or misleading.
3. We find by reference to the interview (and the evidence given before the Tribunal) that the lay-out of the area was as depicted in the sketch at page 202 of exhibit C1. Patient AB was in bed 7, near to the door of the Bay. His wheelchair was kept by his bed in the position shown by the rectangle with the letter "W". The nurses' station had a window which enabled bed 7 to be viewed. The respondent indicated that she kept a watch on AB where possible as he needed assistance to get to the toilet.[26]
4. We consider it likely that the respondent would have seen AB using his iPad before going to sleep at about 12.30am on 6 July, given his excitement at receiving the gift and the fact that he used the iPad until 12.30am. However, we cannot, and do not, make a positive finding that the respondent did see the iPad during this time.
5. During the AHPRA interview the respondent stated that
   • At some time in the early hours of the morning she assisted AB to transfer to his wheelchair and to go to the toilet.[27]
   • In the process of doing this she moved AB's jeans off the wheelchair and put them on the bottom of his bed. She did not see an iPad.[28]
   • Later (after attending to other duties) she found an iPad on the floor between AB's wheelchair and the wall.[29]
   • At that time AB's jeans were on his bed and not on the floor near to the iPad. The iPad was not near the jeans.[30]
   • The position in which she found the iPad is depicted in the sketch at page 202 by a small square containing the letter "I".[31]
   • She had not previously seen the iPad at any time and did not know AB had an iPad.[32]
   • When she found the iPad, she did not have any idea whose it was.[33] She did not think it belonged to AB.[34]
   • She treated the iPad as lost property (with owner unknown), got a brown paper bag from the sluice room, put the iPad in it, and put it on the desk in the nurses' station.[35]
   • She intended to put a "patient sticker" on the brown paper bag and write on it something such as "Whose is this".[36]
   • She intended to give it to the morning staff to deal with.[37]
   • However, she became busy, did not put a sticker on the bag and "just totally forgot".[38]
   • She had some research paperwork on the desk in the nurses' station which she took home with her. She remembers putting that paperwork into her rainbow bag.[39] She does not remember putting the iPad or brown paper bag in there.
   • She found the iPad when she got home and unpacked her bag. She was anxious and "mortified". She intended to ring the hospital but, after having breakfast and a shower, she forgot to do so and went to sleep.[40]
6. We reject the suggestion that the respondent had no idea who the iPad belonged to. If she found it on the floor as she claims, the location strongly suggested that it belonged to AB. She acknowledged that in her interview with police. It would be very unlikely for anyone else's iPad to be in that location. Without any indication from police as to the identity of the owner, she nominated AB: "It would have been [AB's] because he would have pushed himself over in his wheelchair."[41] She told police that the iPad was near AB's jeans on the floor. The reference to the wheelchair suggests her understanding that the iPad may have been displaced from the wheelchair in some way during the process of AB going to the toilet. The jeans were also on the wheelchair before he went to the toilet. The respondent told the police she intended to put the iPad on AB's over-way. She thought she had done so. She clearly believed that it belonged to AB and said that she intended leaving it with him. In our view, no amount of sleepiness or grogginess would have caused her to say such things if, in truth, she had "no idea" who the iPad belonged to.
7. We find that the respondent was dishonest in her interview with AHPRA when she suggested that she had no idea of who the iPad belonged to. We consider this to be an untruthful statement designed to explain why she would have taken the iPad to the nurses' station and not simply returned it to AB. We find that the respondent believed at all relevant times that the iPad belonged to AB. Indeed, under cross-examination before the Tribunal, the respondent acknowledged that it was her understanding that it belonged to AB, albeit adding that she was not sure because she had not seen him with an iPad. We do not accept that she was in any real doubt as to AB's ownership of the iPad. If she was, she would not have claimed to the police that she intended to leave it on his over-way. She made false statements when she claimed that she had no idea whose it was and that she was going to write a note to the effect of: "Whose is this".[42]
8. The patient had other personal items at his bedside such as his wallet and phone. The respondent stated that these items were not locked away as he "was getting to the stage that if he didn't have those things close to him he would lash out." [43] Yet she removed his iPad, and has made false statements in an attempt to justify her actions.
9. Counsel for the Board also drew our attention to the Response filed on behalf of the respondent as recently as 19 February 2020. In that response, the respondent denied that she suspected the iPad belonged to AB. She asserted that she was unaware which patient the iPad belonged to.[44] For the reasons given, we reject those contentions.
10. The respondent gave evidence before the Tribunal that she did not deliberately take the iPad from the Hospital. She maintained that she found the iPad and intentionally placed it in a brown paper bag that she obtained from the sluice room for that purpose. This is inconsistent with what she had told the police. She stated that her attention was diverted due to a MET call concerning a woman in room 30 who had trouble breathing. She insisted that this was a female patient, but had to admit in cross-examination that the Hospital records establish otherwise. Indeed the respondent's memory of the relevant events was generally poor, which is not surprising.
11. The respondent deposed that it was her normal practice to use a brown paper bag for lost property during night shift. This is not what the brown paper bags are designed for. It does not accord with the policies for dealing with lost property. Another nurse on duty that night deposed that she had never been aware of any nurse using a brown paper bag for that purpose.[45]
12. The respondent conceded that the iPad in the brown paper bag was bulky and would have been fairly obvious to her when she handled it. She was questioned as to how she could have packed it in her rainbow bag without realising that she was doing so. The respondent deposed that she was tired on the occasion of this shift. There had been an unexpected death on her previous shift and she had not slept well. She suggested that she was sleep-deprived and this may have led to inadvertently packing the iPad with her belongings and taking it home. There was no expert evidence as to the potential effect of such sleep deprivation on the respondent. Beyond her sleep-deprivation, the respondent was not able to give any further explanation as to her actions. [46]
13. The respondent deposed that she had unpacked the rainbow bag on her arrival at home and found the iPad. She stated that she was 'anxious" and "mortified" when she found it.[47] She planned to telephone the ward to let them know. However, she went to the toilet and had a shower, and then went to bed, forgetting to do so. If the respondent was truly "anxious" and "mortified", as we consider an innocent person would be, we find it strange that she would not have immediately telephoned the ward. She would be aware that the patient would have awoken to find the iPad missing. He would have undoubtedly been very upset. Her colleagues would be dealing with this problem. More importantly, the respondent would be keenly aware that it looked like she had stolen an expensive iPad from a patient. There was every reason to telephone immediately. It is difficult to believe that she decided to have a shower first or that she forgot to do so.
14. Furthermore, we think it very strange that she failed to mention to the police that she had intended to telephone the ward. Even given her grogginess when awoken, she was able to communicate a good deal of relevant information to police. Surely the fact that she had intended to call the ward, but had forgotten, would have been uppermost in her mind. She had opportunities during the interview to mention this but failed to do so. If true, it is something that an innocent person would be expected to say.
15. Looking at the whole of the evidence, and considering the significant inconsistencies within the respondent's accounts, we do not consider that we can rely on her evidence. We reject her evidence insofar as it asserts that she did not act intentionally or dishonestly. We reject her evidence where it conflicts with our findings.
16. We remind ourselves that the rejection of the respondent's evidence does not determine this matter against her. The respondent does not have to prove anything. Despite the rejection of her evidence, we must nonetheless consider whether the allegations have been proved to our reasonable satisfaction, having regard to the principles set out above.
17. A person's intention can be inferred from their actions. Where a nurse removes an expensive item belonging to a patient, packs it with her personal property, and takes it to her home, it may be open to infer that the nurse did so intentionally and dishonestly. However, the Tribunal must consider whether there are other explanations. We must consider whether it is possible that the respondent acted inadvertently, due to sleep-deprivation, general tiredness, the demands of her shift or for any other reason. We have received no medical evidence touching upon any of these issues. We have given them all careful consideration. We consider the alternative explanations as highly unlikely. In the end, after careful consideration of the respondent's evidence and possible alternative explanations, we have a reasonable satisfaction that the respondent acted intentionally and dishonestly in removing the iPad from the ward and taking it home. We find the principal allegation against the respondent proved.
18. It follows that the respondent has made false denials in the various statements and interviews.

1. The respondent's conduct in intentionally and dishonestly removing the iPad and taking it home was in breach of the Board's Code of Conduct (see, for example Conduct Statements 3.4, 4.2, 8.2, 8.7, and 9.1). It was conduct substantially below the standard of conduct to be expected of a practitioner of the respondent's level of training and experience. We have no hesitation in categorising it as professional misconduct.[48] We reject the submissions of counsel for the respondent that a lesser categorisation might be appropriate.
2. The giving of false explanations to police, the employer and AHPRA also constitutes professional misconduct.[49]
3. The Tribunal will list the matter for submissions as to the imposition of disciplinary sanctions.

After hearing submissions from the parties, the Tribunal made the following further decision and orders on 16 September 2020:

1. The Tribunal published a Statement of Reasons in this matter on 27 August 2020. The detailed findings of the Tribunal are set out therein.
2. Further submissions were heard today as to the appropriate sanctions.
3. Both parties submitted that we should adopt a global approach to the imposition of disciplinary action for the overall conduct. We agree that this is appropriate.
4. The respondent has already been suspended for a period of approximately three years and two months by way of immediate action.
5. Counsel for the respondent pointed out that the respondent had been employed as a nurse for 19 years and had a previously unblemished record. She was dismissed from her employment after this incident and has been unable to secure employment in any field since then.
6. Counsel submitted that the respondent had read the decision of the Tribunal and accepts the findings. She understands the basis of the reasons. Counsel indicated that the respondent wished to apologise to the Tribunal, the Board and the patient's family. There was no express acknowledgement, however, from the respondent that she did take the iPad intentionally or that she was untruthful with the authorities.
7. Counsel was not instructed to make any further submission to explain the context of the professional misconduct, or to indicate the respondent's degree of insight into it. We are left substantially unaware of the respondent's degree of insight or the extent to which she truly takes responsibility for her conduct[50]. We have no adequate evidence of rehabilitation of character.
8. The professional misconduct was serious and must attract a reprimand.
9. The conduct was clearly inconsistent with the respondent being a fit and proper person to be registered. Given our findings, and the lack of any adequate evidence as to insight or rehabilitation of character, we must conclude that the respondent remains unfit to be registered. We cannot assess whether or when that situation might change. It is therefore appropriate, given the seriousness of the professional misconduct, to cancel the respondent's registration.
10. Given that the respondent has already been suspended for a period of approximately three years and two months, we have decided to disqualify her from applying for registration for a further period of five months. This does not mean that she will necessarily be able to obtain registration after that time. It is the period after which she may make an application to the Board. She will not be registered until she can satisfy the Board of her fitness and propriety.
11. We regard the period of five months as an appropriate minimum period to allow the respondent to reflect on her conduct and to take the necessary steps towards a demonstration of her fitness. By that time a total period of approximately three years and seven months will have passed since the respondent was first suspended. This is, in our view, a sufficient period to satisfy the other purposes of disciplinary action[51] and the respondent's future registration should thereafter rest on her ability to demonstrate fitness and propriety.
12. The Tribunal makes the following orders:
    1. Pursuant to s 196(1) of the National Law, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

(e) The registration of the respondent is cancelled; and

(f) The respondent is disqualified from applying for registration as a registered health practitioner for a period of five months from the date of this order.

1. The respondent is to pay the Board's costs of these proceedings to be agreed or, in default of agreement, to be fixed by the Tribunal.

[1] The National Law is found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2013 (the Act). Pursuant to s 4 of the Act, the National Law forms part of the law of this jurisdiction.

[2] The suspension was imposed by way of immediate action taken by the Nursing and Midwifery Board of Australia on 21 July 2017 (Exhibit C1 page 159).

[3] See s 6 of the Act and the Statutes Amendment (SACAT) Act 2019 s 112.

[4] [1998] SASC 7142; affirming Debelle J in Rajagopalan v MBSA [1997] SASC 6363.

[5] [1938] HCA 34; (1938) 60 CLR 336 at pages 362-363.

[7] Exhibit C1. This tender included exhibit "SD2A" to the affidavit of Stuart Davies, namely a USB containing a video of police warrant execution - page 104 of exhibit C1 refers.

[12] In our view, the difficulty in rousing the respondent adequately explains the difference between the time when the police arrived (C1 at page 130) and the time that the recording was activated (C1 page 114).

[15] C1 page 114ff. Exhibit C2 sets out some amendments to the transcript of the interview between the respondent and police, as agreed by the parties.

[16] Exhibit SD2A to the affidavit of Stuart Davies, C1 page 104.

[23] We note that the respondent, in her evidence before the Tribunal, could not remember what had been said.

[25] C1 pages 163-202. It is not clear why this interview did not occur until such a long time after the event.

[41] Exhibit C1 pages 104-105 (Affidavit of Stuart Davies), 117-119 (interview).

[48] Cf. NMBA v Morley [2014] SAHPT 17; NMBA v Bain [2018] SAHPT 13 at [36]; NMBA v Johnson [2020] VCAT 205 at [19] and [20].

[49] Cf. Law Society of SA v Jordan [1998] SASC 6809 at [44]; MBA v Todd [2018] SAHPT 12 at [21] and [49].

[50] Cf. Psychology Board of Australia v Holmes (unreported) SACAT 2019/SA002862 delivered 11 September 2020 at [20] - [22].

[51] Craig v MBSA [2001] SASC 169; (2001) 79 SASR 545; NMBA v Symons [2020] SACAT 8 at [50] - [51].