1. After carefully examining the relevant materials and hearing the submissions of Counsel, the Tribunal is satisfied that the Agreed Statement satisfies the spirit and intent of the above principles and accordingly the Tribunal gives weight to the Agreed Statement and will have regard to its contents.

1. In view of the consensus between the parties regarding all matters, which require the Tribunal's assessment and determination, the Tribunal proposes to follow the Applicant's Outline of Submissions.

1. The Amended Notice of Allegations and Agreed Statement set out the factual circumstances in support of the recommended findings for each of the Allegations.
2. The Tribunal notes that:

(a) Allegations 1, 2 and 5 all directly relate to the criminal charges; and

(b) Allegations 3 and 4 relate to Ms Mallows failure to comply with professional and ethical standards.

Allegation 1: Misappropriation of Schedule 4 and Schedule 8 medications

1. Ms Mallows admits the alleged conduct; and to the extent it was captured by the criminal charges, entered a plea of guilty, at the earliest opportunity, admitting to those charges.[13]
2. The Tribunal is comfortably satisfied that Allegation 1 is proven.

Allegation 2: Tampered with Schedule 4 and 8 medications

1. Ms Mallows is alleged to have tampered with patients' Scheduled medications, by removing the medication for her personal use and replacing it with Aspirin, Gastro-Stop, Ondansetron and an unknown substance.
2. In support of proving this Allegation:

(a) Ms Mallows admits the alleged conduct:[14]

(b) Ms Mallows describes the circumstance surrounding her conduct to Dr Nigel Prior during a health assessment;[15] and

(c) The allegations are supported by the observations of Yarrawonga Health's staff.[16]

1. The Tribunal is comfortably satisfied that Allegation 2 is proven.

(a) Ms Mallows admits the alleged conduct;

(b) Dr Nigel Prior, psychiatrist, performed a health assessment on Ms Mallows on 2 November 2020. Dr Prior concluded that:

Ms Mallows has conditions, namely an Opiate Use Disorder, a Benzodiazepine Use Disorder and a Major Depressive Disorder, which detrimentally affect or are likely to detrimentally affect her capacity to practice her profession.[17]

(c) Ms Mallows informed Dr Prior that from early April 2020 through to early June 2020 she reported that she was taking oxycodone tablets, oxazepam tablets and morphine ampoules for her own use. She reported that she escalated her intake as she became increasingly tolerant to the drugs. She was then ordering opiates for patients who did not need it and not entering the order in the Dangerous Drug register;[18] and

(d) There is no evidence that Ms Mallows sought any treatment and/or professional help to manage her health.

1. The Tribunal is comfortably satisfied that Allegation 3 is proven.

Allegation 4: Practising while substance affected

1. This Allegation relates to a specific incident on 1 June 2020, when Ms Mallows appeared to be affected by drugs or alcohol whilst at work.
2. In support of proving this Allegation:

(a) Ms Mallows admits the alleged conduct;

(b) The allegation is supported by the observations of Yarrawonga Health's staff, for example, two enrolled nurses, describe Ms Mallows presenting at work appearing:

to be what I would call drunk. She had no control and her head was wobbly.[19]

off her face[20] and off her fucking tree.[21]

1. The Tribunal is comfortably satisfied that Allegation 4 is proven.

Allegation 5: Altering the Dangerous Drug register

1. This Allegation relates to Ms Mallows using white out to amend the dangerous drug register.
2. In support of proving this Allegation:

(a) Ms Mallows admits the alleged conduct and made admissions to parts of the conduct during the Yarrawonga investigation[22]; and

(b) The allegation is supported by the observations of Yarrawonga Health's staff [23]and Yarrawonga Health's investigation report.[24]

1. The Tribunal is comfortably satisfied that Allegation 5 is proven.

1. The Tribunal must ascertain the degree of seriousness of Ms Mallows conduct, the subject of the Tribunal's factual findings, by reference to the extent to which the conduct departs from the proper standards of professional conduct of a registered nurse.[25]
2. Section 5 of the National Law defines 'professional misconduct' as including:

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

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

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

1. The Board alleges that Allegation 1, constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition by reason of the following matters.[26]
2. First, Ms Mallows admits that her conduct amounts to professional misconduct within the meanings of sub-paragraph (a) and (c) of the definition.[27]
3. Secondly, the conduct is plainly very serious. Between 22 April 2020 and 10 May 2021 Ms Mallows:

(a) dishonestly misappropriated schedule 4 and schedule 8 medications, namely Midazolam, Oxycodone, Morphine and Ordine from her place of practice at Yarrawonga Health for her personal use, including by failing to update the dangerous drugs register; and

(b) on 10 May 2021 was found guilty, without conviction of three (3) offences against the Crimes Act in respect of this conduct.[28]

1. The Tribunal concurs with the Board that such conduct is manifestly serious and reflects very poorly on Ms Mallows character, demonstrating that she lacked the moral integrity to do the right thing.
2. Thirdly, an inherent requirement of a nurse's role is the administration of medications. By virtue of their registration, nurses are permitted to legally possess and administer medication to patients. This includes scheduled drugs of dependence which are not accessible to the general public or by all registered health practitioners. Ms Mallows exploited this position of trust and privilege when she misappropriated the medications. Such conduct is an abuse of the position of privilege which nurses occupy in respect to Scheduled medication.
3. Fourthly, her conduct was contrary to:

(a) the Code of Conduct; and

(b) the Code of Ethics.

1. The Tribunal is satisfied that the conduct clearly contravenes the Code of Conduct which requires:[29]

Lawful behaviour:

(a) 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.

(b) Nurses must 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.

1. The Tribunal is also satisfied that the conduct clearly contravenes the Code of Ethics which requires that nurses act in accordance with the law.
2. In the Tribunal's view, Ms Mallows conduct was substantially below the standards expected, both by the profession and the community, of a nurse and was inconsistent with the practitioner being a fit and proper person to hold registration.
3. The Tribunal is comfortably satisfied that Allegation 1 constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition.

1. The Board alleges that Allegation 2, constitutes professional misconduct within the meaning of sub-paragraph (a) and (c) of the definition by reason of the following matters.
2. First, Ms Mallows admits that her conduct amounts to professional misconduct within the meaning of sub-paragraph (a) and (c) of the definition.[30]
3. Secondly, the conduct is plainly very serious as Ms Mallows removed:

(a) 20 x 5mg tablets (total of 100mg) of Oxycodone for Patient FF and replaced with 20 x tablets of Gastro Stop and resealed the packaging with new tape;

(b) 20 x 5mg tablets (total of 100mg) of Oxycodone for Patient BB and replaced with 20 x tablets of Aspirin tablets and resealed the packaging with new tape;

(c) 20 x 5mg/1ml ampoules (total of 100mg) of Morphine and replaced with 5 ampoules of Ondansetron for Patient AA and resealed the packaging with new tape;

(d) 8 x 20mg ampoules of Morphine from Patient AA and replaced 3 of the 8 ampoules with an unknown substance by placing original Morphine labels on liquid bottles to make it appear as Morphine ampoules;

(e) on 18 May 2020, medications from the locked drug safe and placed them into her pocket. She later returned and removed a tablet from a blister pack and replaced it with a tablet from her pants pocket; and

(f) removed Ordine from Patient EE, with Patient EE commenting that the medication did not taste like it previously did.

1. Thirdly, the conduct had the potential to compromise the care of patients as their medication was diverted away from them: including Patient BB, AA, and EE.
2. Fourthly, Ms Mallows conduct would not satisfy community expectations. Members of the community would be rightly concerned to learn that a nurse not only tampered with scheduled medication but replaced it with non-scheduled medications. In the sentencing hearing concerning Leah Alyse Booth (Victoria Police) v Vivian Mallows , her Honour Magistrate Broughton made the following remarks:[31]

... of particular concern to me was the drug substitution. ... And that has a high level of moral culpability. ... somebody who has responsibility for the care of others as a nurse, them not having the drugs that have been prescribed for them, that is essential for their care, and the risks of compromising their own medical treatment is a very significant matter. .... You know, what that means, what it means for the wrong drugs to be given to patients. That is the piece of this puzzle which has, in my view, the highest level of culpability and that needs to be articulated on behalf of the community.

1. Fourthly, her conduct was contrary to the Code of Conduct and Code of Ethics for the reasons outlined above.
2. The Tribunal is comfortably satisfied that Allegation 2 constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition.

1. The Board alleges that Allegation 3, constitutes professional misconduct within the meaning of sub-paragraphs (a) and (c) of the definition by reason of the following matters.
2. First, Ms Mallows admits that her conduct amounts to professional misconduct within the meanings of sub-paragraph (a) and (c) of the definition.[32]
3. Secondly, as outlined above, Dr Prior considered that Ms Mallows had an Opiate Use Disorder, a Benzodiazepine Use Disorder and a Major Depressive Disorder, which detrimentally affected or are likely to detrimentally affect her capacity to practice her profession.[33]
4. Ms Mallows has provided no evidence that she sought to manage her health - specifically her depression, opiate and benzodiazepine disorders between on or around 7 November 2019 to 1 June 2020. It was only after Yarrawonga Health became aware of her conduct underlying Allegations 1 to 2[34] that she sought the professional assistance of Psychologist Matthew Ryan on 11 June 2020.[35]
5. Ms Mallows conduct was contrary to:

(a) the Code of Conduct; and

(b) the Code of Ethics.

1. The Tribunal is satisfied that the conduct clearly contravenes the Code of Conduct which requires:[36]

Your and your colleagues' health

Nurses have a responsibility to maintain their physical and mental health to practise safely and effectively. To promote health for nursing practice, nurses must:

...

1. seek expert, independent and objective help and advice, if they are ill or impaired in their ability to practise safely. Nurses must remain aware of the risks of self-diagnosis and self-treatment, and act to reduce these.

1. The Tribunal is also satisfied that the conduct clearly contravenes the Code of Ethics which requires that nurses act in accordance with the law.
2. The Tribunal is comfortably satisfied that Allegation 3 constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition.

1. The Board alleges that Allegation 4, constitutes professional misconduct within the meaning of sub-paragraphs (a) and (c) of the definition by reason of the following matters.
2. First, Ms Mallows admits that her conduct amounts to professional misconduct within the meanings of sub-paragraph (a) and (c) of the definition.[37]
3. Secondly, the conduct is plainly very serious:

(a) it is entirely inappropriate for a health practitioner to be substance affected at work. Practising while substance affected affects effectiveness and impairs judgment and clinical skill;

(b) nurses are required to care for vulnerable patients, rapidly respond to life and non- life threatening emergencies, administer medication and potentially perform procedures such as inserting catheters and/or cannulas. Accordingly, practising while substance affected had the potential to seriously compromise the quality of care provided to patients, and put patients at risk of harm.

1. Thirdly, as outlined above, Ms Mallows conduct gave rise to concerns amongst her colleagues.
2. Fourthly, as outlined above, her conduct was contrary to the Code of Conduct and the Code of Ethics.
3. The conduct also contravenes the Registered Nurse Standards:

Standard 3: Maintains the capability for practice

RNs, as regulated health professionals, are responsible and accountable for ensuring they are safe, and have the capability for practice. This includes ongoing self- management and responding when there is concern about other health professionals' capability for practice. RNs are responsible for their professional development and contribute to the development of others. They are also responsible for providing information and education to enable people to make decisions and take action in relation to their health.

3.1 the RN considers and responds in a timely manner to the health and well-being of self and others in relation to the capability for practice.

1. Finally, Ms Mallows presentation at work also directly impacted her ability to complete hospital progress notes.
2. The Tribunal is comfortably satisfied that Allegation 4 constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition.

1. The Board alleges that Allegation 5, constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition, by reason of the following matters.
2. First, Ms Mallows admits that her conduct amounts to professional misconduct within the meaning of sub-paragraph (a) and (c) of the definition.[38]
3. Secondly, the conduct is plainly very serious. The register is used to monitor the availability and movement of controlled medications and substances, and assists in ensuring that patients are provided with the correct medication, at the correct dosage. Ms Mallows conduct impeded the function of the register and consequently had the potential to compromise patient care and the maintenance of adequate medications.
4. Thirdly, the conduct contravened rr 107 (a)(iv), 109(6) and 111 of the Drugs Poisons and Controlled Substances Regulation (Vic) 2017 (DPCS Regulations).
5. Fourthly, the conduct was contrary to the Code of Conduct and the Code of Ethics and Registered Nurse Standards. In particular, the conduct offended principle 1.2 of the Code of Conduct as outlined above.[39]
6. The Tribunal is comfortably satisfied that Allegation 5 constitutes professional misconduct within the meaning of subparagraphs (a) and (c) of the definition.

1. The law relating to the making of determinations has been extensively considered[40] and given rise to well established guidelines.
2. The two primary objectives to the imposition of sanctions, consequent upon a finding of misconduct by the Tribunal, are to protect the public and to maintain the professional standards of the profession in the eyes of the public.[41]
3. These objectives in turn encompass:

(a) protection against further misconduct by the practitioner, by regulating their performance or imposing restrictions on the practitioner's right to practise so as to ensure that the public is protected (specific deterrence).[42]

(b) facilitating rehabilitation of the practitioner;[43]

(c) preventing persons who are unfit to practise from practising as a registered nurse;

(d) general deterrence of other practitioners from similar conduct;[44]

(e) maintaining proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession;[45] and

(f) maintaining public confidence in the profession, including an appropriate acknowledgment and condemnation of misconduct.

1. In addition, determinations should in no sense be punitive[46] and must not be framed in such a way or be so harsh as in reality to be punitive or retributive. There is no question that any sanction is, by its nature, punitive. But it is essential that the primary purpose is not punitive:

A distinction is to be drawn between disciplinary action, which is corporate and self-respecting, and punishment, which is personal and retributive.[47]

1. The degree to which the practitioner has acquired insight into their conduct is relevant to the assessment of the continuing risk posed by the practitioner.[48]
2. The likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should also be central to the imposition of a determination.[49]
3. Insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions.
4. Personal matters such as shame or personal ordeal,[50] and financial difficulty[51] likely to be occasioned by a determination, are of little relevance save insofar as they contribute to the specific deterrence of the practitioner.
5. It is in the public interest that a conscientious practitioner should remain in practice, so long as this can be achieved consistently with the maintenance of the standards of their profession.[52] Relevant in this regard is evaluation of work 'beyond the usual' which the practitioner has performed for the community and their profession as this can assist evaluation of the lapse of professional judgment within a proper context.[53] In this case, no evidence has been presented to the Tribunal which might justify any special consideration being afforded to the Respondent.
6. Finally, appropriate determinations cannot be reached according to a set formula; rather, every case must be determined on its own unique facts,[54] including mitigating circumstances.[55] In appropriate cases, the Tribunal also recognises the need to impose determinations which support rehabilitation and give weight to periods of time already away from practice.
7. We will return to the above objectives below.

1. The Board proposes and the Respondent concurs with the following determinations, pursuant to s 196 of the National Law

(a) Reprimand pursuant to s 196(2)(a) of the National Law; and

(b) Disqualification from applying for registration for 2 years pursuant to s 196(4)(a) of the National Law.

1. For the reasons set out below, the Tribunal agrees that the proposed determinations are most appropriate.
2. There is no question that the misconduct under each of the Allegations is objectively very serious, both in terms of the wholesale abandonment of professional standards as well as the disregard for basic patient care, management and administration of prescribed medicines. Although there was no evidence before the Tribunal of any harm in fact suffered by patients, there was the very real potential for serious health consequences for the patients concerned.
3. Accordingly, the Tribunal concurs with the Board's submission that Ms Mallows misconduct warrants both specific and general deterrence, as well as determinations that ensure the protection of the public, and the maintenance of public confidence in the profession.
4. In reaching appropriate determinations, the Tribunal has had particular regard to Ms Mallows behaviour since the initial concerns raised by the Board.
5. The Tribunal draws upon the Respondent's Outline of Submissions which gives relevant background to Ms Mallow's professional qualifications and experience and her response to the investigation conducted by the Board.[56]
6. Ms Mallows completed a Bachelor of Nursing at Griffith University in 2017. On 22 January 2018 she commenced a Graduate Program at Yarrawonga Health. After completing the program she took up a permanent part-time position working 0.4EFT in the acute area of the facility and 0.4EFT in aged care. After the onset of the COVID-19 pandemic, Ms Mallows was assigned to work in the Karana aged care section for all of her contracted hours.
7. Ms Mallows last practised as a nurse on 3 June 2020 after which she was suspended from working by Yarrawonga Health. An investigation was carried out for Yarrawonga Health, by an external human resource consultant, into serious concerns about Ms Mallows conduct.[57]
8. Ms Mallows did not participate in the internal investigation at this stage,[58] but resigned her position with immediate effect on 26 June 2020.[59]
9. Thereafter, the sequence of events indicates a timely and responsible response by Ms Mallows:

(a) On 30 June 2020, Ms Mallows made a self-notification in relation to her conduct and the background to the development of her opioid dependence.[60]

(b) On 8 July 2020, the Director of Clinical Services at Yarrawonga Hospital made a notification in relation to the conduct.[61]

(c) On 31 July 2020, the Board proposed immediate action, proposing that Ms Mallows' registration be suspended.[62]

(d) On 5 August 2020, Ms Mallows offered an undertaking not to practise. On 7 August 2020, the Board accepted Ms Mallows undertaking as a form of immediate action under s 156 of the National Law.[63]

(e) On 14 August 2020, Ms Mallows was arrested by appointment at Rutherglen Police Station. She is described as being 'cooperative and compliant with police'. She made admissions to having an addiction and was remorseful. She made admissions to misappropriating drugs from Yarrawonga Health and consuming them.[64]

(f) On 14 August 2020, Ms Mallows was charged with offences under the Crimes Act;.

(g) On 10 May 2021, as outlined above, Ms Mallows pleaded guilty before the Magistrates Court to three charges and was sentenced, without conviction, to a Community Correction Order for a period of 12 months wherein she was required to perform 100 hours of community work.[65]

1. In sentencing Ms Mallows to a Community Correction Order, rather than a term of imprisonment, the magistrate observed of Ms Mallows:

that since these offences have been detected you have taken every step that you possibly could.[66]

1. Since the events of November 2019 - June 2020, Ms Mallows has had a remarkable turnaround in her personal health, her lifestyle, her family life and her employment.
2. Ms Mallows elected not to renew her registration and after an intensive period where she focused upon improving her health, she pursued alternative employment in administration at Wodonga TAFE.[67]
3. Ms Mallows psychologist, Matthew Ryan, reviewed Ms Mallows in February 2023 and confirmed she has responded well to treatment and that a relapse in her condition is not anticipated.[68]
4. Ms Mallows, in her reflection addressed to the Tribunal, has described the process of dealing with opioid withdrawal in the early stages with the supervision of her specialist GP, Dr Tillet and the support of her parents. She describes entering a traineeship and completing a Certificate III in Business. Ms Mallows personal life, social life and employment status have all improved markedly since June 2020.[69]
5. A character reference from Ms Mallows employer, Wodonga TAFE confirmed Ms Mallows' career advancement and high standard of work.[70]
6. The Tribunal acknowledges that the investigation of Ms Mallows conduct and the subsequent referral to the Tribunal has been on foot since mid 2020, during which Ms Mallows may have experienced additional strain.[71]
7. The Tribunal also acknowledges the Respondent's submission that:[72]

... at the conclusion of any disqualification period imposed, Ms Mallows will need to satisfy the Board of her fitness to return to the profession, should she choose to apply for registration. She would have to satisfy the Board that she has overcome her opioid and benzodiazepine use disorder. Furthermore, she would need to address recency of practice requirements, possibly necessitating participation in a refresher or re-entry course. Even if she were to be granted registration at some future point, she would carry the burden of her criminal record when applying for nursing positions.

1. The above matters will be addressed further below.

1. The Tribunal concurs with the Board's submission that a reprimand is recognised, in a professional disciplinary case, as a serious form of censure and condemnation.[73]
2. It constitutes a -

strong professional rebuke and indicates that the conduct is condemned by the profession.[74]

[It] tells the public, clients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured_._[75]

A reprimand certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner.[76]

1. In the Tribunal's view, a reprimand in this case will have the salutary effect of underscoring the seriousness of the Respondent's misconduct and serve as a warning to other practitioners, as well as an acknowledgement to members of the public, that her actions and omissions were seriously wrong and fell significantly below professional standards.

1. The Tribunal further agrees that the following circumstances of the Respondent's misconduct, as outlined by the Board, support the proposed determinations:[77]

(a) Connection to practice - the connection is clear. The conduct occurred in the course of RN Mallows' duties as a nurse at the workplace. RN Mallows used her position as a registered nurse to, inter alia, obtain and scheduled medication.

(b) Nature of conduct - Ms Mallows' conduct was criminal, breached the DPSC Regulations and was inherently dishonest. Her health likely detrimentally affected the care she provided.

(c) Criminal Conduct - RN Mallows engaged in criminal conduct. She was found guilty in the Magistrates Court of Victoria, sitting at Wangaratta, to:

i. one charge under s 74 of the Crimes Act for theft;

1. one charge under s 83A(1) of the Crimes Act for making a false document; and

iii. one charge under s 81(1) of the Crimes Act for obtaining property by deception.

(d) Contravention of the DPCS Regulations - the conduct contravened rr 107 (a)(iv), 109(6) and 111 of DPCSR.

(e) Dishonest-RN Mallows engaged in deliberate, dishonest conduct with little regard to the affect it could have on patients. Specifically:

1. tampering with medications, and in some instances replacing a patient's scheduled medication with a non-scheduled medication, had the potential to seriously compromise patient safety and care; and
2. altering the Dangerous Drug register, had the potential to impede the function of the register and consequently had the potential to compromise patient care and the maintenance of adequate medications;

(f) Detrimental to patient care - RN Mallows practised as a RN in circumstances where she was aware that she had developed a dependence on opiates and benzodiazepine, however failed to manage her health to ensure that she was able to practice safely. She also attended work while substance affect[ed]. Plainly, such conduct is serious as it presents a serious risk to patient care.

(g) Record keeping and provision of care-RN Mallows knowingly altered the dangerous drug register. Plainly, accurate record keeping is essential to the effective management of the clinic and its patients. Specifically, it is important that the record book contain accurate information about the use and dispensation of medicines to ensure that adequate stocks are maintained, and patients are provided with the correct medication at the correct dosage.

(h) Breach of trust - in altering the dangerous drugs register and tampering with the medications, RN Mallows breached the trust and confidence which exists between health practitioners. That is because, the conduct had the potential to cast a shadow of suspicion over all her colleagues.

(i) General deterrence and upholding the standards of the profession -- offending in an employment environment, where RN Mallows has responsibilities for others is very serious and attracts a high level of general deterrence.[78] Her conduct had the potential to harm her patients and affect their pain management. Further, her willingness to put vulnerable patients at risk of harm by attending work while substance affected and not managing her health is unacceptable. It is important that the Tribunal's determination sends a clear message to other practitioners that behaviour of the kind engaged in by RN Mallows is unacceptable and will not be tolerated.

(j) Reputation of the profession - it is a matter of public confidence in the profession that practitioners are not seen to abuse their position by, inter alia, misappropriating scheduled substances. It is entirely inappropriate for a practitioner to abuse that privilege for personal reasons, and then attempt to cover up their conduct.

(k) Contravention of professional standards - as outlined above, RN Mallows' conduct breached the Code of Conduct, the Code of Ethics, and the Registered Nurse Standards.

1. We have considered how long Ms Mallows should be disqualified from applying to be re-registered to practise. The Board helpfully referred the Tribunal to a number of cases which, to varying degrees bear similarities in misconduct.[79] We have examined each of these cases. However, the penalty to be imposed cannot be ascertained merely by comparing decided cases. In each case it is the gravity of departure from the standard which must be addressed. Otherwise, there is the risk that the standards of the profession will be set by the worst cases.
2. In this case, Ms Mallows would be facing a significantly longer period of disqualification, given the nature and gravity of the misconduct, if it had not been for the following steps taken by Ms Mallows:

(a) ceased practise as a nurse on 3 June 2020 and made a self notification, with relevant admissions, on 30 June 2020;

(b) subsequently complied with the Board's immediate action and also elected not to renew her registration;

(c) was 'cooperative and compliant' with police in the investigation and prosecution of criminal charges, pleading guilty at the earliest opportunity;

(d) sought specialist health care and submitted to a rigorous program designed to address her serious addiction and opioid dependence;

(e) sought and completed alternative training and gained alternative employment; and

(f) otherwise expressed appropriate insight and remorse.

1. In the Tribunal's view, having been in the grip of a debilitating addiction posing a health hazard to herself and serious potential adverse health consequences for her patients, Ms Mallows has achieved a remarkable and commendable change in her circumstances. Accordingly, there is every indication of good prospects for Ms Mallows rehabilitation and ultimate reintegration as a health practitioner.
2. A period of 2 years' disqualification is considered to be an appropriate determination taking all of the above circumstances into account.

1. For the reasons given above, the Tribunal is comfortably satisfied that the Allegations found proven against the Vivian Mallows, in relation to each Allegation, constitute professional misconduct under paragraphs (a) and (c) of the definition of professional misconduct in s 5 of the National Law.
2. The Tribunal proposes the following determinations:

(a) Ms Mallows will be reprimanded under s 196(2)(a) of the National Law; and

(b) Ms Mallows will be disqualified from applying for registration as a nursing practitioner for a period of 2 years under s 196(4(a) of the National Law.

1. Orders are made giving effect to the above Determinations.

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 as further refined in _Karakatsanis & Anor v Racing Victoria Limit_ed [2013] VSCA 305 [36]-[37].

[2] The original Notice of Allegations was subsequently amended slightly and is reproduced below. All patient names have been anonymised.

[3] The criminal proceeding only relates 10 x 5mg for Patients BB and CC.

[4] The criminal proceeding only relates 10 x 5 mg for Patients DD and EE.

[8] Applicant's Outline of Submissions as to Facts Findings and Determinations 23 October 2023.

1. [9] Nursing and Midwifery Board of Australia v Sandhu (Review and Regulation) (Corrected) [2023] VCAT 488 [19]; Medical Board of Australia v Fox (Review and Regulation) [2016] VCAT 408 [6]; Medical Board of Australia v Willcourt (Review and Regulation) [2018] VCAT 1032 [13]; Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46 [46] to [64]; Nursing and Midwifery Board of Australia v Ramayanam (Review and Regulation) [2023] VCAT 90 [30] to [35].
2. [10] Nursing and Midwifery Board of Australia v Sandhu (Review and Regulation) (Corrected) [2023] VCAT 488 [19]; Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46 [46] to [64].
3. [11] Chiropractic Board of Australia v Petridis (Review and Regulation) (Corrected) [2023] VCAT 841 [61];
4. [12] Medical Board of Australia v Carr (Review and Regulation) [2023] VCAT 945 [15]; Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors [2015] HCA 46 [46] to [29]; Chiropractic Board of Australia v Petridis (Review and Regulation) (Corrected) [2023] VCAT 841 [61]; Dental Board of Australia v Powell (Review and Regulation) [2013] VCAT 999 [24]; Nursing and Midwifery Board of Australia v Ramayanam (Review and Regulation) [2023] VCAT 90 [30] to [35].

[13] Agreed Statement: TB, tabs 9 to 12.

[14] Agreed Statement: Yarrawonga Letter (26.06.20), Tab 21.4; and Email (01.07.21), Tab 33.

[15] Health Assessment, TB Tab 23, 606 [15.2].

[17] Health Assessment, TB Tab 23, 606 [15.4].

[18] Health Assessment, TB Tab 23, 602 [4.4].

[22] TB Yarrawonga Letter (26.06.20), Tab 21.4, tab 21.1.3, 435.

1. [25] Nursing and Midwifery Board of Australia v Robinson [2021] VCAT 326, [25].

[26] Reference is made to Applicant's Outline of Submissions [43]-[79].

[27] Respondent's Outline of Submissions [30].

1. [28] Preliminary Brief of Evidence, Tab 9; Transcript of proceedings, Tab 10; and Certified Extract, Tab 11.

[29] Code of Conduct Tab 34 pg.667 [1.2].

[30] Respondent's Outline of Submissions [30].

[32] Respondent's Outline of Submissions [30].

[33] TB Health Assessment, Tab 23, pg.606 [15.4].

[36] TB Code of Conduct Tab 34 pg.675 [7.1(d)].

[37] Respondent's Outline of Submissions [30].

[38] Respondent's Outline of Submissions [30].

[39] Refer TB Code of Conduct Tab 34 pg.667 [1.2].

[40] Refer for instance Craig v Medical Practitioners Board [2001] SASC 169 [41] per CJ Doyle, Williams and Martin JJ agreeing_; Ha v Pharmacy Board of Victoria_ [2002] VSC 322 [97] per Gillard J; Medical Board of Australia v Jansz [2011] VCAT 1026 [358]-[373] (per Judge Jenkins, Dr Fabris and Dr Burge); and Medical Practitioners Board of Victoria v Naik [2009] VCAT 755 [60]-[61] (per Coghlan DP, Dr Shanahan and Dr Clarke); Medical Board of Australia v Holten [2019] VCAT 837 at [21]- [25].

[41] Ha v Pharmacy Board of Victoria [2002] VSC 322 [97] per Gillard J.

[42] See eg Law Society of New South Wales v Bannister [1993] NSWCA 157 per Sheller JA; Law Society of New South Wales v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408, 471.

[43] Kotowicz v Law Society of New South Wales, unreported, NSW Court of Appeal, 7 August 1987. See too Psychology Board of Australia v Mair [2010] VSC 628.

[44] See eg Papps v Medical Board of South Australia [2005] SASC 345 [54]-[65]; Law Society of New South Wales v Bannister [1993] NSWCA 157 per Sheller JA; Law Society of New South Wales v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408, 471; Health Care Complaints Commission v Cox-May (No 1) [2007] NSWPST 6; Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 December 1997; Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 [14]-[16]; Wilks v Medical Practitioners Board of Victoria [2007] VCAT 2439 [128]; Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349 [45]; Von Schrenk v Dental Practice Board of Victoria [2008] VCAT 2302 [100]; Chinese Medicine Registration Board v Woo [2010] VCAT 753 [44].

[45] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630, 637.

[46] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186, 201-202; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183; Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 November 1997 per Harper J, p 12; Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997 per Gillard J, p 12.

[47] Adamson v Pharmacy Board of Tasmania (No 3) [2004] TASSC 88 [2] per Evans J.

[48] See eg Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349 [45]; Medical Practitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978 [8]; Williams v Medical Board of Victoria [2008] VCAT 1784 [99]. See too Chinese Medicine Registration Board v Antoniades [2010] VCAT 2132 [45]; Morris v Psychologists Registration Board, unreported, Supreme Court of Victoria, 19 December 1997 per Harper J.

1. [49] Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997 per Gillard J, p 13.

[50] Buttsworth v Walton [1991] NSWCA 40, p 8 per Samuels JA.

1. [51] Varnavides v Dental Board of Victoria, unreported, Supreme Court of Victoria, 1 May 1998 per Mandie J.

[52] Law Society of New South Wales v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408, 414. See too Chinese Medicine Registration Board v Antoniades [2010] VCAT 2132 [46].

[53] Law Society of New South Wales v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408, 415.

[54] Physiotherapy Board of Victoria v Amerasekera [2013] VCAT 1727 [76].

[55] Nursing and Midwifery Board of Australia v Jackson [2013] WASAT 140 [48].

[56] Outline of Submissions of the Respondent dated 10 November 2023, [8]-[25].

[67] Respondent's Submissions [35]-[36].

[71] The Respondent refers to NMBA v Quinney [2022] VCAT 1125 at [70].

1. [73] See Medical Board of Australia v Xie [2019] VCAT 924, [58]-[59]; Nursing and Midwifery Board of Australia v Dutton [2016] VCAT 495, [252].
2. [74] Nursing and Midwifery Board of Australia v Little [2020] VCAT 687, [77] Medical Board of Australia v Benedicto [2022] VCAT 117, [44].

[75] Medical Board of Australia v Rathnayake (Review and Regulation) [2019] VCAT 1012 at [32].

[76] Medical Practitioners Board of Victoria v Swieca [2009] VCAT 419 [52].

1. [79] Refer Applicant's Submissions [86]: Nursing and Midwifery Board of Australia v Daniels (Review and Regulation) [2022] VCAT 457 (2 May 2022); Nursing and Midwifery Board of Australia v Harris (Review and Regulation) [2021] VCAT 496; Nursing and Midwifery Board of Australia v Harrison [2022] VCAT 177; Nursing and Midwifery Board of Australia v Spehar [2022] VCAT 634; Nursing and Midwifery Board of Australia v Clarke-Wakeling (Review and Regulation) [2022] VCAT 478; Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403.