The respondent did not participate in the Tribunal proceedings and the Tribunal proceeded to hear the matter in his absence.

The Board submitted that the second ground constitutes unprofessional conduct, and that both grounds together constitute professional misconduct. The Board sought an order that the respondent be prohibited from providing any health service until such time as he becomes re-registered, rather than for a specified period of time, under s 196(4) of the National Law.

Held, finding professional misconduct and unprofessional conduct and imposing sanctions:

• The Tribunal decides pursuant to s 196(1) of the National Law that the respondent has behaved in a way that constitutes professional misconduct (Ground 1) and unprofessional conduct (Ground 2);
• The respondent is reprimanded;
• The respondent is disqualified from applying for registration as a registered health practitioner for a period of 5 years from the date of this order;
• The respondent is prohibited from providing any health service as defined in the National Law until the respondent is re-registered in a health profession under the National Law.

Health practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional misconduct - Unprofessional conduct - Unlawful or improper behaviour outside of workplace - Failure to notify Board of convictions or charges - Reprimand - Disqualified from applying for registration for 5 years - Prohibited from providing any health service until re-registered in a health profession

Criminal Law Consolidation Act 1935 ss 14, 14a

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 5, 130, 195, 196

Australian Broadcasting Tribunal v Bond [1990] HCA 33

Boyd v Carah Coaches Pty Ltd [1979] HCA 56

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Craig v Medical Board of South Australia [2001] SASC 169

Hughes and Vale Pty Ltd v State of New South Wales (No 2) [1955] HCA 28

Kearney v Nursing and Midwifery Board of Australia [2020] VCAT 1216

Marin v Chiropractic Board of South Australia [2020] SASCFC 74

Medical Board of Australia v Brown [2023] VCAT 1075

Medical Board of Australia v Piesse [2022] VCAT 82

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Nursing and Midwifery Board of Australia v TQF [2021] VCAT 1176

Nursing and Midwifery Board of Australia v Morrison [2022] ACAT 92

Nursing and Midwifery Board of Australia v Tay [2024] SACAT 9

Osteopathy Board of Australia v Ratliff [2021] VCAT 658

Pharmacy Board of Australia v Roberts [2022] SACAT 111

Physiotherapy Board of Australia v Adey [2017] SAHPT 3

Medical Board of Australia v PYP [2021] VCAT 876

Psychology Board of Australia v Griersmith [2019] VCAT 52

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010 s 196(1)

1. By application dated 30 September 2024, the Nursing and Midwifery Board of Australia (Board) has referred two allegations about the conduct of a formerly registered nurse, the respondent, to the South Australian Civil and Administrative Tribunal (Tribunal) under s 193(1)(a) of the Health Practitioner Regulation National Law ('National Law') in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010.
2. The respondent first obtained registration as a registered nurse in May 1987.
3. He held registrations with the Board as follows: a general registration between 1 July 2010 and 31 January 2011; a general registration between 6 November 2013 and 30 June 2015; a provisional registration between 9 October 2017 and 30 November 2018; and a general registration from 30 November 2018.
4. He surrendered his registration on 6 May 2020 and is currently not registered with the Board.
5. Whilst registered, the respondent was subject to the requirements of the National Law, and the Professional Standards set out in the Board's Code of Professional Contact for Nurses in Australia, as varied from time to time.
6. Ground 1 of the Application alleges that the respondent failed to provide his child with adequate food and nutrition; failed to seek appropriate medical and/or other healthcare, advice, and/or interventions on behalf of his son, including: prior to changing his diet; and, after such time, as his son's physical decline in health was apparent. It is also alleged the respondent failed to ensure the child's education and other development needs were met; and that there was a failure to take all reasonable steps to protect the child from harm.
7. The Board alleges that the conduct in the Ground 1 constitutes professional misconduct.
8. Ground 2 alleges that the respondent failed to comply with s 130 of the National Law by failing to give written notice to the Board within seven days of being charged with the offence of criminal neglect on 15 April 2020.
9. The Board contends that Ground 2 constitutes unprofessional conduct under the National Law, and that Grounds 1 and 2 taken together constitute professional misconduct.
10. On 12 November 2024, Senior Member Stevens made an order that:

Pursuant to s 60 of the SACAT Act 2013, the Tribunal prohibits the publication of the name of, or any material tending to identify, the respondent or any member of his family.[1]

11. We have in these reasons accordingly avoided naming the witnesses or school that could identify the child.
12. The respondent was contacted by the Senior Member at the first directions hearing by telephone. The summary of hearing of 12 November 2024 identifies that the respondent became agitated, and stated that he did not wish to participate in the proceedings. Senior Member Stevens granted leave to proceed in the respondent's absence.
13. The respondent was served with the notice of this hearing, and provided a copy of the 'Book of Documents' tendered by the Board. At the start of the hearing the Tribunal tried to contact the respondent by telephone, but was unable to speak to him. In the circumstances we were satisfied that it was appropriate to proceed in his absence.
14. We approach these proceedings on the basis that the Board must prove its case on the balance of probabilities, taking into account the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
15. The Board tendered five volumes of documentary evidence, comprising just under 2300 pages. No oral evidence was called.
16. The documentary evidence includes: communications between Australian Health Practitioner Regulation Agency ('AHPRA') and South Australia Police ('SAPOL'); records of interviews; affidavits; medical records; hospital admission records; ambulance records; documents from Child Protection Services ('CPS'); school records; documents from the Department of Child Protection ('DCP'); psychological reports; neurological reports; physiotherapists reports; General Practitioner ('GP') Notes; National Disability Insurance Scheme ('NDIS') documents; communications with the Office of the Director of Public Prosecution ('ODPP'); photographs; correspondence from the Board to the respondent; and Professional Codes and Guidelines. Given the quantity of the material, we do not set out each of the 197 different items or exhaustively summarise the same.
17. The respondent was born in 1965. He is married, and had a child, born in December 2006.
18. The child unfortunately suffered from significant health issues from birth. He has an acquired brain injury. He suffered episodes of stiffening associated with apnoea and shaking of arms and legs, was diagnosed with cryptogenic infantile spasms, and developmental delay. He was also diagnosed with Autism Spectrum Disorder. He has been wheelchair bound and is dependent on his parents.
19. A psychologist's report from 2011 referred to language and motor disabilities as an issue, but identified the main hinderance to his cognitive development was a severe intellectual disability. Issues were identified in relation to gross motor skills, fine motor skills, self-care and safety. In her view, those difficulties would continue throughout his school years and beyond.
20. The family initially resided in Victoria until about 2013 or 2014.
21. A 2014 medical note refers to the child being able to crawl but not walk, that he likes music but cannot talk. The medical notes for the periods between 2015 and 2017 suggest the child could stand with assistance, walk about 20 steps in 15 minutes using his walker, crawl on his hands and knees, and vocalise in a way to indicate yes or no. A student profile in 2017 described him as a happy, sociable student who liked cars, trucks, trains, cause and effect toys, food and music.
22. The documentation demonstrates a substantial decline in the child's health and development from 2017 to 2019, particularly in the period from late 2018 to early 2019.[2]
23. A School Services Officer swore an affidavit in August 2020 stating that she first met the child seven years previously. At that time, he was a 'happy and contended child' who ate well. He was able to crawl, bear weight, and stand for a short amount of time with limited support. He was smiley but non-verbal. From 2017 she noticed a decline in the child. He lost weight. He lost the ability to crawl and stand. She described him as 'floppy', compared to what she previously observed, which was that he used to arrive, 'upright, happy, and ready for the day'. He would come to school with avocado, salmon, homemade bread and maybe fruit, but she considered the quantity of food was inadequate when compared to other children of his age. She said she met the respondent and described him as 'frightening'. In 2019 she only saw the child once or twice at the beginning of term. She said:

It was distressing to see this beautiful boy in the state he was. [He] was thin, limp, lethargic, disengaged, and non-responsive - this was in stark contrast to how [he] presented when I first met him. [He] was there in body, but not in mind.

Sometime later in 2019 he visited again with his new carers and 'had a big beautiful smile, he was alert, happy, and gained weight. He looked like the old [child]'.

1. Another teacher deposed that she first met the child in August 2018, and taught him until 2019. She said that in 2019 he attended school only once. She said he slept a lot during the day. When she first met him, he was attentive and responsive to interactions with staff and had a love of music. As time went on, he slept more and stopped responding to interactions. He went from alert, responsive and engaged with his surroundings, to a state of displaying little interest or awareness. His head would often be down on his chin resting on his chest. This change occurred over a period of 14 weeks and was dramatic. She said he was provided with half an avocado and slices of smoked salmon with little variation. She considered the amount of food to be insufficient. She noted the concerns about food in the 'communication book' and in a note to his parents, however nothing changed. On the day he attended in 2019 he 'looked dreadful' and 'gaunt' and was completely unresponsive to all forms of stimulation. At the end of Term 3 he visited again with his new carers to say goodbye. On that day he was bright, with his head up, with facial expression and displaying emotions of joy. She said that was the child she first met in 2018.
2. Another teacher deposed that she first met the child in 2016 whilst Deputy Principal. She said that the child was a 'well fleshed happy little boy; he could stand; sit on the floor without support and play with staff'. From about 2018, she noticed a gradual increase in the child's absenteeism. He was more serious and smiling less. He was visibly lethargic. In 2019 she observed him lying on a mat in the classroom, looking very thin, emaciated, lethargic and 'very floppy'. His condition 'shocked the members of the teaching Unit' and child abuse notifications were made.
3. A co-ordinator at the school deposed that the school did not receive any information from the child's parents about the formal diagnosis of the child's disability, which was recorded on the enrolment form as 'acquired brain injury'. Her dealings were with the child's mother rather than the respondent. She said when she first met the child, he was sitting upright in his wheelchair, could self-stimulate, feed himself and had his own personality. His attendance record was quite poor, which of itself is not unusual for children with disabilities. Several issues were raised with the child's mother including with respect to his food being too thick to eat, and him being given an inadequate amount of food. The child's mother said that the child was on a 'ketogenic diet' and that the mother did not want the child to eat more food as he did not move much, and she didn't want him to get fat. The co-ordinator thought that over time the child's mother was getting 'overwhelmed'. She said that the child arrived at school 'soiled and wet', and that when attempts were made for speech pathologists, occupational therapists or physios to provide in home care that the child's parents would not let them into the house. The coordinator said that from about 2017 there was a decline in the child's health, that he was losing weight, his 'personality stopped' and that he was 'immobile'.
4. Another coordinator at the school deposed that the child had a mid-range vision impairment and that there were strategies that could be put in place to help improve his vision but that the child did not attend school frequently enough to benefit from these strategies.
5. In October 2018 Novita, a disability organisation, communicated with the mother by email and referred to a lack of medical information on file, and raised concerns over 'significant weight loss'.
6. The medical records show that a referral to a neurologist occurred at a visit in August 2018, and then another referral was done in January 2019. The applicant says that this demonstrates a delay in actioning recommended advice during a time that the child's health was deteriorating. The applicant also points to large gaps in the medical records in terms of large gaps between visits and assessments. In between the August and January referrals the child did see a neurologist who prepared a report stating that the child's development was 'quite poor' and that it was 'difficult to know where to go'. The applicant refers to the focus of the report being on seizures with no mention of weight loss.
7. Another coordinator at the child's school, who started working in March 2019 described her attempt to engage with the mother about the child's non-attendances. The mother asserted the child was suffering seizures and constipation, but when asked as to whether the child had seen a doctor, said no. The coordinator suggested the child be taken to the Emergency Department at the Women's and Children's Hospital ('WCH'). The mother said that if the child did not improve, she would take him to a doctor. On 15 March there was a conversation with the mother about the need for a medical certificate for the continued absences and the mother expressed frustration at the request.
8. The material on file also includes a number of 'intake' reports in 2018 and 2019 reflecting the notification of concerns to the DCP.
9. An October 2018 intake report referred to the child appearing malnourished; his legs were the size of the notifier's wrists; he required blankets to be kept warm; his bones in his joints were prominent; he was lethargic and passive, requiring support to reposition him in the wheelchair and to keep his head upright.
10. The intake report of 1 February 2019 refers to the child being at school on 30 January 2019 and appearing to be significantly dehydrated with dry and split lips, drifting in and out of consciousness and emaciated.
11. On 15 March 2019 SAPOL attended the respondent's home following a Care Concern Notice. The child was described as 'skeletal' in appearance.
12. A Detective Sargeant deposed as to this attendance. He said he attempted to explain concerns about the child to the parents. He said the respondent was 'dismissive and hostile'. He expressed concern as to the parents' mental health.
13. A Constable deposed that on 15 March 2019 the respondent spoke to Police at this attendance, and admitted suffering anxiety and that he took anti-depressants. The Constable said the respondent alluded to not having the energy to deal with the child's situation and may have lost the perception of the gravity of the situation due to being around the situation so long and deposed:

[the respondent] wavered between giving reasons for thinking [the child] was in reasonable physical health to a medical assessment may be helpful. He explained that [the child's] gastro-intestinal track did not function normally. > > [The respondent] said, "He lives on avocado and salmon, so we don't feed him anything .... It's all vegetable based and he still gets really, really bunged up. Sometimes with people who become obstructed, then there would be signs and symptoms of obstruction, they wouldn't be eating, they would be vomiting, and he's never done that, he's vomited but not for those reasons." > > I said, "When's the last time he has done a poo?" > > He said, "Well, yesterday, umm, but, you know, as I say, we use this to massage his abdomen".

14. The Constable deposed that in the discussions on the 15 March 2019 that the respondent said words to the effect that 'this is an absolute disgrace, can you put yourself in our situation, our child is sick. And when we explain that to people its busy bodies'. The Constable said it was concerning that the respondent explained that the child often gets constipated and that an electronic massage machine was used to help with the constipation.
15. A transcript of interview was prepared. From the transcript there was a debate about the child needing medical attention. The respondent told his wife during that interview that the child needs assessment, but his wife preferred to call a locum rather than take the child to hospital. In relation to weight loss, his wife referred to the need to see a nutritional expert, but this hadn't happened because she was 'educating myself [herself] on it'.
16. The transcript refers to the respondent referring to himself as a 'registered nurse' and asserting that the child's condition hasn't deteriorated since he's seen the neurologist. He admitted at one point that the child was not well enough to go to school, and was 'worryingly thin'. When asked about assistance on offer the respondent was critical of the NDIS which he described as a waste of time, and that he had plenty of experience in nursing.
17. At another point in the transcript he refers to the child going 'really, really well' and then 'heartbreakingly' the seizures started up again. He referred to saying to his wife that the child 'seems flat and seems listless'. He said that the constipation caused problems and 'he lives on salmon and avocado, so we don't feed him anything'. At another point he referred to the weight loss but said his pulse and respirations were fine and that the weight loss might be due to a growth spurt, but that he was listless. He later said that he would prefer a GP locum to a hospital, and that he was not an emergency case to go to hospital but 'you know I'm not denying the fact you're right, he may need to be, he may need to be in hospital'. The transcript records that attempts were then made to call a locum, and some argument between the respondent and his wife, including as to whether the child should go to hospital or whether to wait for a locum.
18. SAPOL returned later in the day, and the child was admitted to the WCH.
19. A paramedic from South Australian Ambulance Services deposed that on picking up the child it was immediately apparent that the child was emaciated and malnourished.
20. The admission records refer to a 'history from the mother', which includes: the child deteriorating over the last six months; that he had been on a ketogenic diet in an attempt to improve health and seizures, but that the seizures were increasing. The neurologist was last seen in November 2018, with no medical contact since. The mother reported that the nocturnal seizures were increasing and leading to fatigue, and that the weight loss was 'expected' with the ketogenic diet.
21. The child was in the WCH from 15 March 2019 to 30 May 2019. There was a diagnosis of severe weight loss, with various complications including constipation, dental disease, vitamin A deficiency and malnutrition. His weight on discharge from hospital had grown to 36kg.
22. A report of a forensic paediatrician for CPS, and working at the WCH, of 31 May 2019 referred to the child being malnourished, having no fat stores and evidence of wasting in his upper arms, thighs, and buttocks. His weight was significantly below the 3rd percentile minimum expected for a child of his age, as well as being significantly down on previous weighing.
23. The child's weight at the time of admission was 25kg. This compared to 41kg when he was eight, and 37kg when he was nine.
24. The forensic paediatrician said that prior to seeing the child there was a short interview with the respondent and the child's mother during which they expressed their anger and distress about SAPOL's involvement, and that the mother preferred to have the child see a locum rather than medical practitioners at the WCH. The mother said that she thought that the weight loss was not related to diet, but to seizures which had recurred 6-12 months after the ketogenic diet was started. When questioned as to why the diet would be persisted with if there were increased seizures the mother became agitated and did not wish to continue the discussion.
25. The forensic paediatrician was critical in the report of the mother making dietary decisions without medical or dietician consultation. She referred to the child being severely constipated and that this had been ongoing for some time. She said that a known effect of the ketogenic diet was constipation. She was critical that even though the constipation was so severe as to preclude school attendance that no medical treatment had been sought for the constipation. She was critical that whilst the child's condition was deteriorating such that he only attended two school days in 2019 and was absent from 12 February, reportedly due to fatigue from overnight seizures, that the parents did not seek help from GPs, the WCH Neurology Department or the WCH Emergency Department, even though concerns had been raised by the school and Novita therapists. She said that it was the parents' responsibility to seek appropriate care, and they did not do so. She was also critical about using alternative therapies, and a lack of engagement with supports that were offered in relation to vision therapies.
26. The forensic paediatrician prepared a table which reviewed the known medical history and made comments thereon, which were critical of a lack of follow up by the mother including not attending further appointments where those had been recommended, and where records made no mention of advice being sought or discussions taking place on the child's weight loss. There were lengthy delays between referrals being made and appointments booked.
27. A physiotherapist from Novita deposed to meeting the child in April 2018 and describing him as bright and alert. There was a downturn in his health between terms three and four in 2018. By late term four the child could no longer initiate steps when placed in the walker. He appeared fatigued. In discussions with the mother the mother reported that she wanted the child to avoid exercise and requested treatments that the physiotherapist said were not 'evidence based'. The physiotherapists thought that the mother was finding the NDIS funding process to be frustrating and that 'everyone was trying to make her life difficult'. A referral was made to a neurologist but not followed up and discussions took place with the mother about this lack of follow up, as well as concerns about the child's bowel movements. The physiotherapist said that in appointments after the child had been removed from the parent's care that his health had significantly improved and that he had gained weight.
28. A parenting capacity report was prepared for the DCP by a psychologist, and a social worker. It notes that the respondent did not participate in the assessment despite DCP asking him to. The mother was shown various photos of the child, before and after his weight loss, and she described the child as 'fat and overweight' and consistently said that no-one had brought to her attention that the child was underweight, and sought to blame doctors. The report stated that the respondent's role was unclear, but that the mother had described his role whilst they lived in Melbourne as 'very involved' but that once they were in Adelaide the mother was the primary carer and the respondent had faced challenges in relation to his own physical and mental health. The mother described the respondent as having fluctuating moods and that she and he faced an imminent separation. The report's conclusion was that the child was extremely vulnerable, reliant on his caregivers, dangerously underweight, and that his needs were neglected whilst in the care of the mother and respondent.
29. A GP had consulted with the child in October 2014, June 2015 and September 2018. The first consultation, with the mother, was to request a clearance for his swallowing status. The second, with the respondent, was to get a letter for the school to give paracetamol for the child when required and requests were made for forms to be completed for a disability parking permit and conductive education. The September 2018 consultation through the mother related to Seizure Care Plan paperwork. The GP said the consultations were largely related to paperwork, and that clinical issues were not raised.
30. Another GP from the same practice deposed that he consulted with the child in January 2019 but did not examine him and presumes the consultation related to a referral. He said that he did not see any signs of neglect, but as he did not have any prior dealings he did not have a point of reference to gauge what a normal presentation was.
31. The child's mother made a report to police. The report was transcribed. She blamed the DCP for the breakdown of her marriage and said the school provided critical misinformation. She said that she had never refused to attend any meetings requested by the school and never refused to take him to a doctor and that the forensic paediatrician accepted information without validating facts. She denied that the child was on a 'ketogenic diet'. She said that in late 2018 she was feeling pressure from numerous stressors including about the child's seizures and weight, was having disrupted sleep, was the primary provider and manager of finances and that she was assisting her ex-husband (the respondent) to complete a 'bridging course' to regain his nurses' registration. She said the child was underweight but not malnourished. She asked that charges be laid against the school, and various staff members of the school, against various people in child protection, and against various health practitioners.
32. On 20 March 2019 an application was made by the DCP for care and protection orders. An interim order was made on 25 March 2019. A report in support of final care and protection orders of August 2019 noted significant improvement in the child's function since he was removed from his parents' care, including being able to move independently, being able to sit up on his own for a period whereas at the time of being admitted into care he had lost the ability to even hold his head up independently.
33. On 15 April 2020 the respondent was arrested and charged with criminal neglect pursuant to s 14(1) of the Criminal Law Consolidation Act 1935 ('CLCA') and failing to provide necessary food to a child without lawful excuse pursuant to s 14A of the CLCA. The 'Facts of Charge' and 'Charge Sequencing Report' refer, amongst other things, to a 'noticeable deterioration' in his weight and overall health in the three years before being taken into care; that he was not given appropriate physical care; that he was put on a diet which was unsuitable without consulting a dietician, and where the food he was provided was insufficient in quantity. This was alleged to have contributed to poor health, and in turn poor school attendance. Some 40% of his weight was alleged to have been lost. It was alleged that his dental health was poor, and he subsequently underwent four dental extractions and four fillings. It was alleged that there was no evidence that the child had ever been to a dentist. He had vision problems requiring corrective glasses. It was alleged that his parents had failed to ensure that his optical needs were provided for. It was alleged that the parents did not co-operate with the parent assessment by the CPS Social Worker.
34. On 30 April 2020 AHPRA advised the respondent that a notification had been received against him in relation to the criminal charges that had been made. The file note of Ms Emmerson who spoke to the respondent states:

Introducing myself and my role. Explaining we've received a notification from SAPOL in relation to the charges laid. > > Requesting a copy of the charge sheet. [The respondent] is not interested in AHPRA any more. "You can rip up my registration, I'm finished". [The respondent] does not want to practice any more, he "would rather be on the street and do that work again." > > ... [the Respondent] does not want me to contact him again. > > He got some bad news today and "really don't want to have it out with you". > > [The Respondent] saying to toss his registration into the trash bin. Reiterating he would rather be on the street than work as a nurse, work "is for slaves". [The Respondent] saying we should bring the migrants in, like we have been for doing the work. "Treat them like the dirt you treat me like". > > [The Respondent] saying "get back to your job now love" and terminated the call.

35. On 4 May 2020 the respondent sent AHPRA a notice to surrender his registration.
36. On 5 June 2020 the Youth Court of South Australia made consent orders to place the child under the guardianship of the Chief Executive of the DCP until he turned 18 years old.
37. The charges against the respondent were dismissed on 17 March 2021.

1. The substance and particulars alleged in respect of Ground 1 in so far as they relate to conduct of the respondent are as follows:

3. The Respondent failed to: > > 3.1. provide his child C (a pseudonym) with adequate food and nutrition; > > 3.2. seek appropriate medical and/or other health care, advice and/or interventions on behalf of C, including: > > 3.2.1. prior to changing C's diet; and > > 3.2.2. after such time as C's physical decline in health was apparent; > > 3.3. ensure C's education and other development needs were met; > > 3.4. to take all reasonable steps to protect C from risk of harm. > > Particulars

2. At all relevant times the Respondent was married to AA (a pseudonym). AA held registration as a psychologist between 1 July 2010 and 30 December 2018 (save for two short periods).

5. The Respondent and AA had a biological son, C, born on 21 December 2006. > > 6. At all relevant times C: > > 6.1. lived with the Respondent and AA, who had shared care of him; > > 6.2. had numerous health issues including: > > 6.2.1. an acquired brain injury; > > 6.2.2. a seizure disorder; and > > 6.2.3. other physical disabilities, including being unable to walk; > > 6.3. has significant intellectual disabilities; > > 6.4. was non-verbal; > > 6.5. required full time care and was entirely dependent on others for all of his physical and developmental needs; > > 6.6. was a National Disability Insurance Scheme (NDIS) participant with a plan within the meaning of the National Disability Insurance Scheme Act 2013 (Cth).

3. From 2014, C was enrolled at the [the School] which provides education and assistance programs for children with severe and multiple disabilities.
4. From in or around 2017 staff at the School and therapists who were involved in C's care at the School observed that C's physical condition and development deteriorated, including losing weight and changes to mobility and interactions. C had a high rate of absenteeism from the School, in particular in 2019.

9. On 15 March 2019: > > 9.1. at approximately 1.50pm South Australian Police (SAPOL) attended the home of the Respondent and AA (Residence) to conduct a welfare check on C, at the time aged 12 years; > > 9.2. the Respondent and AA were present; > > 9.3. SAPOL officers observed C was lying in a bed and was "very thin, immobile and listless" and "almost skeletal in his appearance"; > > 9.4. SAPOL officers spoke with the Respondent and AA about the need for C to be medically assessed; > > 9.5. SAPOL officers left the Residence at approximately 2.28pm; > > 9.6. SAPOL officers returned to the Residence at approximately 5:00pm. The Respondent and AA were again present; > > 9.7. SAPOL officers arranged for SA Ambulance to attend the Residence; > > 9.8. SA Ambulance formed the opinion C needed to be transported to hospital; > > 9.9. the Respondent and AA did not agree to C being taken to hospital; > > 9.10. SAPOL removed C from the Residence and care of the Respondent and AA pursuant to the powers under s 41 of the Children and Young People (Safety) Act 2017 (SA); > > 9.11. SAPOL executed a general search warrant at the Residence; > > 9.12. SA Ambulance officers transferred C to the Women's and Children's Hospital (WCH); > > 9.13. C was admitted to the WCH. > > 10. At the time of his admission to the WCH, C: > > 10.1. was malnourished, having no fat stores, with evidence of wasting of his upper arms, thighs, and buttocks; > > 10.2. weighed 25kg which was significantly below the 3rd percentile minimum expected for a child of his age and his weight was significantly down on previous weights; at 8 years old he was 41kg and at 9 years old he was 37kg; > > 10.3. had poor dental health; > > 10.4. had a vision impairment which required corrective glasses; > > 10.5. there was no record of immunisations since immunisations in 2012; > > 11. Between 2016 and March 2019: > > 11.1. C had attended a general practitioner on only 7 occasions; > > 11.2. C was never assessed or examined by any medical practitioner; > > 11.3. there are no records of any medications being prescribed or dispensed to C. > > 12. C was admitted to WCH from 15 March 2019 to 30 May 2019. > > ...

5. The Respondent's conduct was inconsistent with the applicable professional standards, including the:

19.1. 2013 Code of Conduct, in particular conduct statement 9.1 and 9.2; > > 19.2. 2018 Code of Conduct, in particular clauses 1.2 and 4; > > 19.3. 2013 Code of Ethics, in particular value statement 2.4; > > 19.4. 2018 Code of Ethics, in particular elements 1 and 2.

6. The following facts referred to in those particulars are established from the documentary material tendered to the Tribunal: 4, 5, 6, 7, 8, 9, 10, 11, and 12. We have not set out paragraphs 16 to 18 which relate to the fact that the respondent was charged but ultimately the charges were withdrawn. Those facts are also made out on the evidence. The fact of a charge, and that it was withdrawn does not mean that a criminal offence was committed.
7. Particular 9.9 needs some further elaboration. The assertion is that the respondent and his wife did not agree to the child being taken to the hospital. The finding we make based on the record of interview is slightly more nuanced. The respondent himself did not say that the child could not go to hospital. The child's mother was more resistant, wanting the locum to attend, and promising to call police once the doctor had arrived, and the respondent said that if the locum said the child needed to go to hospital then they would take him to hospital, and wanting the general practitioner 'to make that assessment'. The statement of a SAPOL detective then indicates that following that earlier discussion (with two constables) police attended later in the day and advised they were going to take the child to the WCH in an ambulance. The detective said that the mother was 'borderline obstructive' and that they dealt with the mother rather than the respondent. The respondent did not obstruct the police in this process, but he did not positively assist in making a positive decision to take the child to hospital as opposed to waiting for a locum.
8. The gravamen of Ground 1 is found in paragraph 3 of the application.
9. Paragraph 3.1, that the child was not provided with adequate food and nutrition is made out on the evidence. Whilst it appears that the mother was the person whose idea it was to place the child on a restricted diet, and was the primary person with whom the school communicated its concerns:

65.1. The respondent had the training skills and experience of a nurse.

65.2. The respondent was living with the child and the mother.

65.3. It was apparent to the respondent that the child was losing weight.

65.4. The respondent knew that the child was on a diet consisting largely of avocado and salmon, and knew that he was suffering from constipation. It was apparent that there was a change in the child's energy levels.

1. As to paragraph 3.2.1 there was a decision made to place the child on a diet. Although the mother subsequently asserted the child was not on a ketogenic diet that is inconsistent with earlier admissions, and we find that the child was placed on a ketogenic diet. No consultation was made with a doctor or dietician on the topic of diet or weight loss. Whilst it is debatable as to whether a change in diet required consultation beforehand, it is clear as set out in 3.2.2 that no specific medical advice was sought once the child's condition started deteriorating whilst he was on the diet. At the latest that decline was apparent by late 2018. Whilst the child did see a neurologist in November 2018, and obtained a further referral in January 2019, no reference was made to the topic of diet or weight loss. Further, whilst there were limited GP appointments in 2018, they were in relation to the topics of paperwork rather than raising serious concerns about the child's decline and weight loss.
2. Whilst the mother may have been more active in the care of the child, the respondent, as a nurse, and as a father, should have seen that the condition of the child was deteriorating and stepped in to make sure that he was given proper medical attention.
3. That failure to take action led to serious weight loss, functional decline, and malnutrition. It led to him not being able to be in a fit enough state to attend school. We are satisfied that 3.2 is made out in the following terms:

The respondent failed to: seek appropriate medical and/or other health care, advice and/or interventions on behalf of C, after such time as C's physical decline in health was apparent.

4. Paragraph 3.3 is made out in relation to the following topics, based in particular on the reports of the forensic paediatrician dated 31 May 2019 and the Parenting Assessment Report of 5 July 2019: diet and its link to education (in the sense that the poor diet led to his loss of functioning and inability to attend school); exercise (in the sense that the child had available supports in the form of physiotherapy but this was not actively pursued); lack of dental care; and vision (in the sense that the child was identified as having vision impairment issues but there was insufficient engagement to ensure that the child's vision issues were treated).
5. Paragraph 3.4 is made out in that reasonable steps would have been:

70.1. The child should have been taken to a GP in 2018 to address his weight loss and deterioration of function;

70.2. When it reached the stage that the child was in the state he was in late 2018 and early 2019, he should have been taken to hospital well before being taken by police to hospital.

1. Those findings in paragraph 3 then relate to the allegations in paragraph 19.
2. The 2013 Code of Conduct at 9.1 states:

Nurses, maintain and build on the community's trust and confidence in the nursing profession. > > Explanation.

3. The conduct of nurses maintains and builds public trust and confidence in the profession at all times.
4. The unlawful and unethical actions of nurses in their personal lives risks adversely, affecting both their own and the professions good reputation and standing in the eyes of the public. If the good standing of either individual nurses or the profession were to diminish, this might jeopardise inherent trust between the nursing profession, and the public necessary for affective therapeutic relationships and effective delivery of nursing care.
5. The 2013 Code of Conduct was replaced by the 2018 Code of Conduct. It is not clear that the 2013 Code is relevant to the issues surrounding the deterioration in the child's health over late 2018 and into 2019.
6. The 2018 Code of Conduct at 1.2 refers to 'Lawful Behaviour':

1.2 Lawful behaviour > > Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must

1. respect the nurse-person professional relationship by not taking possessions and/or property that belong to the person and/or their family
2. comply with relevant poisons legislation, authorisation, local policy and own scope of practice, including to safely use, administer, obtain, possess, prescribe, sell, supply and store medications and other therapeutic products
3. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration,
4. understand that making frivolous or vexatious complaints may be viewed as unprofessional conduct or professional misconduct and have implications for their registration.

1. We are not convinced that paragraph 1.2 is relevant. The applicant was charged with a criminal offence, but the charge was dismissed, and the particulars of the allegations are not framed explicitly by reference to the respondent being guilty of 'unlawful behaviour'.
2. The 2018 Code of Conduct refers at clause 4 to: professional boundaries, advertising, legal insurance and other assessments, conflicts of interest, financial arrangements and gifts. We are not convinced that clause 4 is relevant to this matter.
3. We also did not find the reference to the paragraphs of the Code of Ethics referred to in the particulars to be relevant to this matter.
4. We have not found that the respondent breached the paragraphs of the 2018 Code of Conduct or Code of Ethics referred to in the application.
5. We do find that Ground 1 however is made out as particularised in paragraph 3 of the application, with the explanation in respect of paragraph 3.2 referred to above.
6. The question then becomes whether those findings made out a complaint of professional misconduct or unsatisfactory conduct.
7. The events occur outside the formal role of patient vis professional. That is, it was not part of the respondent's professional practice to care for his son.
8. The definition of professional misconduct under the National Law is:

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

(emphasis)

1. The wording of subparagraph (c) of the definition of professional misconduct includes conduct whether occurring in connection with the practice of the health practitioner's profession or not.
2. The phrase fit and proper is not defined in the National Law, but allows for a wide range of matters to be considered.[3]
3. It includes not only whether a person has the necessary honesty, knowledge and ability but also whether the person possesses sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted with the sort of work the relevant registration or licence entails.[4] The decision maker needs to make a value judgment and, in so doing, must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be applied to weighing matters in favour of the person. The test must be applied in the context of what the person will be authorised to do if the relevant permission is given.[5]
4. Unprofessional conduct has a non-exhaustive definition, the preamble of which is:

unprofessional conduct, of a registered health practitioner, means 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...

5. There have been cases where health practitioners have been found to have engaged in conduct that amounts to professional misconduct outside the scope of professional conduct.
6. In Nursing and Midwifery Board of Australia v Morrison [2022] ACAT 92 the ACT Tribunal stated, in the context of a matter concerning domestic violence:

The definition of 'professional misconduct' in section 5 of the National Law expressly includes conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, as do the professional standards applicable at the time of the conduct. > > There are numerous examples of a court or tribunal finding that conduct involving family violence constituted professional misconduct notwithstanding that the conduct occurred outside the practitioner's practice. Those cases recognise the harm done to public confidence in health services when individual service providers perpetrate family violence. > > The following observations made by the tribunal in Medical Board of Australia v PYP, a case involving a medical practitioner who committed an act of family violence against his wife, apply equally to other providers of health services, including nurses: > > Our community rightly expects that medical practitioners will not commit a crime of this nature. Conduct of this kind impacts on the standing of and the trust that the community holds in the medical profession. > > Medical practitioners are and need to be seen by the community as people who are law abiding, trustworthy and safe to be in proximity to, and respectful, including of women. > > An offence of this kind has particular resonance for medical practitioners who may be the first point of contact for a person who is themselves a victim of an act of family violence. This is because the public expects that they will be able to provide good medical care for those who are experiencing abuse and violence, as well as to identify and respond appropriately to the perpetrators of the same.

7. In an immediate action decision, Kearney v Nursing and Midwifery Board of Australia [2020] VCAT 1216 the Victorian Civil and Administrative Tribunal was dealing with allegations about the treatment of children outside the workplace, and before the practitioner became a nurse. The Tribunal said:

1. Clearly, the circumstances of this case differ from those where the conduct of the practitioner is alleged to have taken place in the workplace. Here, in contrast, the offences are alleged to have occurred during the period 2004 - 2008, and Ms Kearney only became registered and commenced work as a nurse in 2009. So she was not under the ethical obligations of a nurse at the time of the alleged conduct. Further, it is accepted that there have been no complaints about her conduct as a nurse, and she is well regarded. 2. Ms Beech submitted that the present case is to be distinguished from Farshchi and CJE/Leow, in the sense that, for the reasons mentioned in the above paragraph, there is no nexus between Ms Kearney's work as a nurse and the alleged conduct. 3. In Farshchi, the victim was an Iranian refugee who felt vulnerable in terms of his immigration status, and was exploited as an employee in a non-medical business by Dr Farshichi. There was also a concern about Dr Farshchi prescribing medication for his employee, without the records disclosing a proper basis, but this was not the primary issue. 4. In CJE/Leow, the connection was less direct. It was a case of conduct during a consensual sexual relationship out of hours and away from work, between two doctors who worked at different hospitals. 5. The Board's response was that Ms Kearney commenced studying for her nursing qualification in February 2008, and completed her course in December 2008. She was first registered as a nurse in January 2009. The Board submitted that if the alleged conduct had become known at that time, the predecessor Board would have had to consider whether she was a fit and proper person to be registered. 6. The Board submitted that as a foster parent Ms Kearney was responsible for the care of the two children. She was placed in a position of trust. As a nurse, similarly, she is in a position of trust. 7. In our view, these points are well made. The two children were obviously in a position of great vulnerability while in Ms Kearney's care. There is in our view great similarity between the moral and ethical position of a foster parent and a nurse in terms of their responsibility for vulnerable persons in their care. The more vulnerable the child/ patient, the higher the duty of care. Clearly, patients for whom nurses are responsible are frequently in a very vulnerable position.

8. The key aspect of the public interest here is public confidence in the nursing profession, and in the provision of services by nurses.
9. Nursing is a caring profession. Caring encompasses kindness, fairness, trustworthiness, integrity, emotional stability, empathy and compassion. It requires a connection with people sometimes at the worst moments of their lives. The alleged conduct exhibits the opposite of these qualities when caring for two young children in her care.
10. In our view the conduct alleged, if proved, would rightly provoke outrage due to the way in which vulnerable children were treated. It would raise the issue of Ms Kearney's fitness to be registered.
11. The alleged conduct goes to the heart of the characteristics required by a nurse. Providing care for people when they are at their most vulnerable is fundamental to nursing. Of course, Ms Kearney was not subject to the formal ethical obligations applicable to nurses 2004-2008. But she was subject to a similar fundamental ethical duty as a foster parent.
12. Although this complaint has not been framed as involving the commission of a crime, (although the neglect of a child is capable of constituting a criminal offence - the particulars here referred to the fact of the charges being laid and withdrawn but did not state that a crime had been committed):

90.1. The conduct in question is failing to provide appropriate care to a person with whom the respondent had a duty to provide care (i.e. parent child).

90.2. The child was in a position of vulnerability and dependent on his parents.

90.3. Not providing an appropriate level of care to a vulnerable person is not consistent with what the public would expect from a nurse. The conduct is incompatible with the respondent being suitable to have, as one of his core responsibilities, the care and wellbeing of patients who are sick and vulnerable.

1. We find that, based on the findings made in Ground 1, that the applicant has engaged in professional misconduct.

1. In respect of Ground 2, s 130 of the National Law provides (in part):

130 - Registered health practitioner or student to give National Board notice of certain events > > (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. > > (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. > > (2A) To avoid doubt, a registered health practitioner is not required to give the National Board written notice of an event within the meaning of paragraphs (e) or (f) of the definition of relevant event if the notification is prohibited by the Health Insurance Act 1973 of the Commonwealth. > > (3) In this section - > > relevant event, in relation to a registered health practitioner, means - > > (a) the practitioner is charged with - > > (i) a scheduled medicine offence; or

(ii) an offence punishable by 12 months' imprisonment or more, whether in a participating jurisdiction or elsewhere; or

(emphasis)

1. The respondent was charged on 15 April 2020 with offences that were punishable by 12 months or more imprisonment, and that this was a 'relevant event' for the purposes of s 130(3)(a)(i) of the National Law.
2. The respondent was accordingly obliged to give the Board written notice of the charge within seven days under s 130(1).
3. No such written notice was given.
4. The Board knew of the charges shortly after the relevant period through a notification from elsewhere and discussed the same with the respondent, however the intention of the National Law is clear - the obligation is on the practitioner to advise.
5. The definition of unprofessional conduct in s 5 includes, in the list of matters that are included in the definition:

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

1. The respondent has contravened a provision of the National Law, namely s 130(1).
2. We agree with the Board's submissions that the contravention is appropriately classified as unprofessional conduct.

1. In Craig v Medical Board of South Australia,[6] Chief Justice Doyle, (Williams & Martin JJ agreeing) stated:

The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

2. The imposition of disciplinary action may serve one or more the following purposes:[7]
   • preventing practitioners who are unfit to practice from practising;
   • securing maintenance of professional standards;
   • assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct (or unprofessional conduct) will not be tolerated;
   • bringing home to the practitioner the seriousness of their conduct;
   • deterring the practitioner from any future departures from appropriate standards;
   • deterring other members of the profession who might be minded to act in a similar way;
   • imposing restrictions on the practitioners' right to practice so as to ensure that the public is protected.
3. The protection of the public may sometimes require action that has a greater adverse effect on a practitioner that may be warranted if punishment was the relevant consideration, and, unlike in criminal sentencing, the personal circumstances of the practitioner are of limited significance in working out what sanction is necessary in the public interest.
4. Section 196 of the National Law provides:

196 - Decision by responsible tribunal about registered health practitioner > > (1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide -

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(b) one or more of the following -

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

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

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

(iv) the practitioner has an impairment;

(v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.

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

(a) caution or reprimand the practitioner;

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

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

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

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

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

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

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

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

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

(e) cancel the practitioner's registration.

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

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

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

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

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

(ii) using any title or a specified title;

(c) impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the person.

1. Here, the respondent is no longer registered as a practitioner.
2. We consider it is appropriate to reprimand the practitioner.
3. We also consider it is appropriate to disqualify the respondent from applying for registration for a period of five years.
4. In reaching that conclusion we take into account the nature and extent of the departure from proper professional standards, doing so in the context that the conduct incurred outside the professional setting (i.e. in the familial setting), but where the conduct manifested qualities that are incompatible with the respondent being a fit and proper person to hold registration.
5. The respondent has not demonstrated any contrition or remorse to the Board or Tribunal. It is likely that the respondent has suffered from mental health issues, though the precise details of that are not available to the Tribunal. He did not engage in the Tribunal process, and in the telephone conversation with the AHPRA employee referred to the above made comments to the effect that his registration could be 'ripped up' and that he was 'finished' and would rather be on the street than work as a nurse.
6. We do not overlook that caring for a child with the high levels of needs that this child had would be incredibly stressful and have a profound effect on the respondent. The criminal charges and the child going into care of the State until he was 18 would also likely be highly distressing to the respondent.
7. In making our decision we are not looking to punish the respondent for the situation he and his family found themselves in. Rather, his reaction to that situation in terms of neglecting the needs of the child is not compatible with being fit to practise as a nurse, and the period of disqualification we have chosen is intended to maintain public confidence in the profession of nursing and the system of regulation of that profession.
8. The next issue is whether the respondent should be prohibited from providing any other health service, or a specified health service either permanently or for a stated period (s 196(4)). The language of s 196(4) is different to s 196(2)(d) in that under s 196(2)(d) any disqualification must be for a specified period, whilst under s 196(4) the prohibition can be either permanently, or for a specified period.
9. In Marin v Chiropractic Board of South Australia [2020] SASCFC 74 ('Marin'), the Full Court was dealing with a matter where the Tribunal at first instance had made a disqualification order that was permanent and a prohibition order. On appeal to a single judge the Court found that s 196(2)(d) did not authorise the making of a permanent disqualification and substituted an order disqualifying the practitioner from practising for 10 years but otherwise dismissed the appeal. On the appeal to the Full Court, Chief Justice Kourakis upheld the prohibition order and noted the wide definition of health services and stating at [7] that 'At least one reason for defining health services beyond those health services more commonly provided by each of the 16 recognised health professions is to strengthen disqualification orders by prohibiting a disqualified health professional from providing any of those other services'.
10. In Osteopathy Board of Australia v Ratliff [2021] VCAT 658 the Victorian Civil and Administrative Tribunal stated at [144] (in the context of an osteopath):

It would undermine the effectiveness and reputation of the system for the regulation of the profession, if a practitioner who is disqualified from seeking registration as an osteopath for six years is able, and seen to be able, to work as a masseur. That is, carrying out work which has many similarities to, and utilises many of the same skills, as osteopathy. It would be seen as a 'backdoor' way of overcoming orders for cancellation and disqualification.

11. The Board submits that it is appropriate to make a prohibition order. We agree, given that the same reasons that make it inappropriate for the respondent to practise as a nurse would apply with equal force to other health services. The Act defines these other services as being hospital services, mental health services, pharmaceutical services, community health services, health education services, welfare services necessary to implement the other services, services provided by dietitians, masseurs, social workers, speech pathologists, audiologists or audiometrists.[8]
12. The Board has sought an order that the prohibition be expressed in terms that it operate until such time as the practitioner becomes registered rather than for a period of months or years, the rationale being that it is through the registration process that the Board can assess whether a practitioner has undergone sufficient reformation or rehabilitation that they no longer pose a risk to the public. Orders in such terms have been made in Medical Board of Australia v Brown [2023] VCAT 1075 and Medical Board of Australia v Piesse [2022] VCAT 82 ('Piesse'). In Piesse the Tribunal noted the tension in statutory language and considered whether an order in such terms was for a 'specified period' and concluded that the statutory language favoured a broad interpretation.[9]
13. The issue was considered by this Tribunal in Nursing and Midwifery Board v Tay [2024] SACAT 9 where the Tribunal stated:

1. We have considered the power of the Tribunal under s 196 of the National Law to prohibit the respondent from providing any health service until she gains re-registration in a health profession. Section 196(4) relevantly provides:

If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to do one or more of the following-

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

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

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

(ii) using any title or specified title ...

1. The drafting of this sub-section is somewhat curious. Paragraph (a) makes no reference to a "permanent" disqualification, strongly suggesting that such is not contemplated. The District Court of South Australia so held in Marin v The Chiropractic Board of Australia (Marin). The Court held that disqualification must be for a "specified" finite period. There was no challenge to this in the subsequent appeal to the Full Court of the Supreme Court.
2. However, a prohibition order can clearly be permanent. As pointed out by this Tribunal in Chinese Medical Board of Australia v Zhou, a person could be disqualified for a specified period but prohibited permanently from providing any health service. After the specified period has elapsed, the person could apply for registration but is still prohibited from providing a health service. We respectfully suggest that this is an issue on which legislative clarification would be helpful. The issue does not arise in this case.
3. The second observation concerning sub-section (4) is that paragraph (a) refers to "a specified period" whilst paragraph (b) refers to "a stated period". Normal principles of interpretation would suggest that these phrases were intended to have different meanings.
4. We are aware of cases in which this Tribunal and tribunals in other States have made orders prohibiting a person from providing a health service until the person is able to gain reregistration. However, there are at least two cases in which the power to make such an order has been doubted.
5. In Chinese Medicine Board v Zhou this Tribunal expressed the concern that the "lack of specificity" of the time period would likely offend against the language of the section, leading to the same error as occurred in Marin. The Tribunal suggested that the prohibition needed to be for a finite period and not be of indefinite or open-ended duration.
6. The Victorian Tribunal in NMBA v TFQ agreed and held that the prohibition must be for a stated period or permanent.
7. In neither of these cases did the tribunal refer to the difference in wording, namely "specified period" and "stated period", and discuss the significance of that difference.
8. The issue was considered in detail in MBA v Piesse. The Tribunal held that "a stated period" could be a period which is described with complete precision, albeit that it is not stated at that point of time by reference to exact dates. The Tribunal considered that it had power to prohibit until registration was obtained. It considered that this interpretation was more consistent with the statutory objectives.
9. We agree with the decision in Piesse. The difference in wording strongly suggests that the period does not have to be "specified" as was the case with the disqualification order in Marin. A period can be "stated" without specifying exact dates. It can be stated by reference to a future event, after which the period will end.
10. This interpretation is more consistent with the objectives of the National Law. It allows more adequately for the protection of the public. Otherwise, a person whose registration was cancelled could (after the prohibition period expired) provide health services to the public without ever demonstrating that their disqualifying characteristics had been addressed. Furthermore, it would be a strange outcome if a person could not be prohibited under paragraph (b) (ii) of subsection (4) from using a specified title until registration was regained.
11. Schedule 7 to the National Law contains provisions relating to interpretation. Clause 7 of that schedule provides:

(1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.

We consider that the Tribunal is empowered to make the prohibition order as requested and we do so.

1. In Nursing and Midwifery Board of Australia v TQF [2021] VCAT 1176 the Victorian Civil and Administrative Tribunal in a decision earlier than Piesse held that:

The proposed order was expressed to operate 'until such time as [TFQ] is once again granted registration as a nurse under the National Law'. We consider that language to be too open-ended or indefinite and do not consider that it meets the requirements of s 196(4)(b). The prohibition must either be for a stated period or permanent. > > We regard it as appropriate that the prohibition match the period of disqualification.

2. The debate between the authorities may need to be resolved at some stage in a superior Court. In this matter we are mindful that there was no contradictor to the Board's position and note that the matter is not free from doubt. We also note that other decisions of this Tribunal are not 'binding' on us. Nonetheless it is desirable to have some uniformity of approach. On balance we are satisfied it is appropriate to make the order in the manner suggested by the Board, and agree with the submission that the order, in the terms suggested, is for a 'specified period'. It is not the same issue as in Marin where there was an invalid order making a permanent disqualification where that was not authorised by the statute.
3. Section 195 of the National Law empowers the Tribunal to make an order for costs. The common practice of the Tribunal is to award costs in respect of professional disciplinary proceedings brought under the National Law to the successful party. We consider that it is appropriate to make an order for costs in favour of the Board.

1. The Tribunal decides pursuant to s 196(1) of the National Law that:

1.a. The respondent has behaved in a way that constitutes professional misconduct (Ground 1).

1.b. The respondent has behaved in a way that constitutes unprofessional conduct (Ground 2).

1. The Tribunal imposes the following disciplinary action:

2.b. The respondent is disqualified from applying for registration as a registered health practitioner for a period of 5 years from the date of this order.

2.c. The respondent is prohibited from providing any health service as defined in the National Law until the respondent is re-registered in a health profession under the National Law.

1. The respondent must pay the costs of the Board to be agreed or fixed by the Tribunal.

[1] Paragraph amended as per Tribunal Order issued 4 July 2025.

[2] Paragraph amended as per Tribunal Order issued 4 July 2025.

[3] Psychology Board of Australia v Griersmith [2019] VCAT 52.

[4] Hughes and Vale Pty Ltd v State of New South Wales (No 2) [1955] HCA 28; Boyd v Carah Coaches Pty Ltd [1979] HCA 56.

[5] Australian Broadcasting Tribunal v Bond [1990] HCA 33.

[6] [2001] SASC 169; (2001) 79 SASR 545 at 553-554. See also New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177.

[7] Physiotherapy Board of Australia v Adey [2017] SAHPT 3 at para [36]; Pharmacy Board of Australia v Roberts [2022] SACAT 111.

[8] This paragraph amended as per Tribunal Order dated 4 July 2025.

[9] This paragraph amended as per Tribunal Order dated 4 July 2025.