• The respondent is contrite and contrition carries with it insight and remorse which is a mitigating factor. The Tribunal should have regard to the two affidavits of Mr Moutakis,[17] evidence that was received by the Tribunal with the consent of the Board.
  • The Tribunal should assess the respondent's contrition and remorse at the higher end of the spectrum, if the Tribunal accepts that the level of insight he is expressing demonstrates a proper reflection of his actions, having regard in particular to the three professional character testimonials before us.
  • The respondent has always been professional and comes before the Tribunal with no previous blemishes on his professional career.
  • Although it is accepted that there are separate instances of failing in his duties over approximately a ten year period, it is open for the Tribunal to view the respondent's conduct as one incident- "the Oakden scandal".
  • The respondent says (in his affidavits) that he is deeply ashamed of his involvement in the scandal. He does not attempt to allocate blame elsewhere and he was "a small cog in a larger wheel". He accepts that he had a professional responsibility to act upon the allegations in his former role by investigating the complaints in a timely manner and escalating the issues of concern to the appropriate authorities.
  • The respondent now puts himself in the shoes of the family members affected by his conduct and whilst acknowledging that he initially had hoped for a period of suspension, he now accepts, the only appropriate order is for cancellation of his registration.
  • The respondent has completed a number of professional education courses in an attempt to rectify his approach and he made a timely acknowledgement of his wrongdoing notwithstanding the fact that there was a four month delay between the filing of the Initiating Application and his most recent response as a result of the change in legal representation.
  • The Tribunal should be guided by the reported case of Physiotherapy Board of Australia v Wilson (Review and Regulation)[18] which involved a health professional in a non-clinical role similar to that of the respondent (albeit as a physiotherapist). In that decision, the disciplinary Tribunal stated at [27]:

To her credit, Ms Wilson recognises and accepts that she shares some responsibility for the clinical governance failings in the department. She co-operated at all times with the investigations and these proceedings over an inordinately long period of time. She admits the amended allegations and has shown genuine insight, reflection, she makes no excuses.

The parties in that matter, by consent proposed a 10 year period of disqualification however, the Tribunal imposed a period of two years.

1. It is important to note in the present matter before us, that Mr Moutakis has been subjected to conditions on his right to practise as a professional since about April 2018. In particular, at that time, the Board placed restrictions regarding:
   • The type of practice permitted.
   • The type of patient contact.
   • His workplace.
   • The requirement for indirect supervision.

In about May 2020, those conditions were amended to provide that:

• The respondent may only practise in place(s) approved by the Board.
• The respondent must be supervised by another registered nurse approved by the Board.
• Reports regarding supervision are to be provided on a regular basis.

1. In the matter of Medical Board of Australia v Fox (Review and Regulation),[19] in relation to an agreed position on sanctioning it was recognised that:

There is now a well-established line of authority in support of the proposition that, where a regulatory body and respondent have reached a negotiated settlement and the penalty proposed is broadly speaking within the permissible range having regard to all the circumstances, a court or tribunal should not depart from the agreed sanction without a clear or exceptional reason for doing so. In terms of professional disciplinary proceedings, it nonetheless remains the duty of VCAT to determine the level of conduct and any appropriate sanctions, and no agreement between a regulatory body and the professional person under review can supplant that duty. Nonetheless, it is also now established that an agreement between the parties in such a case is a highly relevant matter for VCAT, will largely govern the manner in which the proceeding is conducted, and is an extremely important matter for VCAT to take into account in forming its own view on relevant matters. This is particularly the case where it is clear from the face of the agreement that it does not represent an arbitrary outcome, but carefully reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.

2. We adopt these remarks wholesale. We also acknowledge that both parties are represented by Counsel who are very experienced and versed in the laws of professional disciplinary proceedings. We have no doubt that the Board in particular, would have considered the objects and principles of the National Law as set out in the legislation and discussed and applied around the Nation in the various relevant reported and unreported decisions to which we have been referred. These include the relevant decisions of Nursing and Midwifery Board of Australia v Harrison, Nursing and Midwifery Board of Australia v Skelton and in our view, the most relevant decision (factually) of Physiotherapy Board of Australia v Wilson.[20]

1. In the matter of Harrison, this Tribunal stated the following:[21]

The public needs to be assured that such conduct by persons in charge of a care facility concerned with providing care and protection to vulnerable members of the community will not be tolerated and that proper standards must be upheld to protect those individuals.

We repeat those comments here, notwithstanding that the respondent was not directly involved in matters of clinical management at Oakden. The fact remains, that he was aware of the appalling conditions of care for the residents both in terms of both the facility inadequacies and the standard of nursing care(with the use of unauthorised restrictive practices) and that he failed to properly investigate and report to the appropriate authorities, complaints concerning at least three residents resulting in unacceptable outcomes which not only affected them directly, but also their loving family members. Mr Moutakis was charged with a very unique and responsible position and he failed to properly execute his duties over an extended period of about ten years which on any view, cannot be regarded as an isolated one off incident of professional misconduct.

1. The matter of Wilson to which we have been referred concerned a physiotherapist who held the position of Director of Clinical and Quality Support Services at a regional hospital in Victoria where, during the period 2013 to 2014, it was reported that there had been a higher than state average of perinatal deaths which potentially could have been avoided if not for substandard professional health practices. Ms Wilson, a registered physiotherapist and the respondent in that matter, had the responsibility of carrying out an executive management and administrative role which did not require registration and did not involve direct clinical care. The Victorian Civil and Administrative Tribunal (VCAT) found that she did not have the responsibility or authority of making direct clinical care decisions regarding patients nor was there the same link or proximity to patient care compared to the Director of Obstetrics or the Director of Nursing of the hospital.[22] Accordingly, the Tribunal went on to reprimand the respondent and to disqualify her from applying for registration as a physiotherapist for a period of two years, notwithstanding that the agreed position reached between the parties was that a ten year disqualification period was justified under the circumstances. VCAT noted that there were several mitigating circumstances which did not require a sanction for reasons of specific deterrence and that given that the respondent's role as identified was different from those involved with direct clinical management, a two year disqualification period was sufficient to meet the needs for the protection of the public and the general deterrence of other health professionals.
2. In coming to our decision here, we have carefully considered the evidence, the submissions of the parties (both written and oral), and the legal authorities to which we have been referred. There is no doubt in our minds, that the issues of the public protection, the general deterrence of other health practitioners and the specific deterrence of the respondent require considerable sanctions to be imposed to ensure that such conduct and the lives of our community's most vulnerable are never again treated with such irreverence and impunity for the convenience of others, let alone those trusted by society to care for and protect such individuals.
3. We have had regard to the affidavit evidence and annexed documentary material in the nature of professional educational certificates and professional character testimonials put forward by the respondent. We accept that whilst his admissions of professional wrongdoing were not immediately timely, he has nonetheless owned up to his unacceptable professional conduct and by so doing, has spared the families of those directly affected by his actions of the distress and trauma of giving evidence during what would no doubt have been protracted Tribunal proceedings not to mention the saving to the public taxpayer and the Tribunal's resources - matters for which he ought to be given some credit. We also accept that the respondent is genuinely remorseful and contrite and that according to his reflections, he is now demonstrating some insight into his conduct and the need for a corrective approach to his professional duties and responsibilities if he is to continue in the nursing profession in the future in some capacity.
4. We do not however accept that the respondent's conduct can properly be described as one isolated incident on an otherwise unblemished career as submitted by Mr d'Assumpcao and suggested by some of the character referees. This was professional misconduct over a sustained period of time and whilst we do accept that Mr Moutakis held a different role to those directly in charge of the clinical management of the Oakden residents (specifically Harrison and Skelton), his role as the Consumer Advisor/Consumer Liaison Officer, placed him in the very position where he should have been aware of the appalling conditions and level of care and where he could have done something to put paid to that situation very much sooner than when the terrible atrocity came to the attention of the authorities and the public. This matter can be distinguished from the matter of Wilson both in that factual sense and in terms of the duration of the professional conduct which in that case was considerable shorter.
5. Whilst not dismissing the respondent's attempts to rehabilitate himself through the various professional development courses which he has successfully undertaken, it cannot be overlooked firstly, that continuous professional development is a mandatory requirement for ongoing registration which the respondent would have had to maintain in any event and secondly, there is some incentive for any respondent in disciplinary proceedings to undertake such courses in the hope of achieving a better outcome. It is therefore a matter of the weight to be placed on that evidence in the Tribunal's exercise of its discretion, together with the question of what weight ought to be placed on character testimonials especially where an author strays into commentary on the factual basis of a Complaint and/or any agreement reached between the parties and the respondent's previous good professional conduct, without full knowledge of the nature and duration of the misconduct (as did one of the character testimonials in this matter).
6. We place limited weight on both the respondent's professional character testimonials for those reasons. We consider that our approach as to what are appropriate sanctions in this matter to properly reflect the seriousness of the respondent's sustained professional misconduct, requires us to place greater emphasis on the need for public protection, the general deterrence of other health practitioners in engaging in such conduct (which will not be tolerated under any circumstances) and the specific deterrence of the respondent from engaging in similar conduct in the future. We therefore consider that there are clear and exceptional reasons which justify us departing from the parties' agreed position as to the length of the disqualification period. We consider that a period of three years is warranted under the circumstances. But for the fact that the respondent has been under restrictive conditions of practice for six years, his expressed remorse and contrition, his rehabilitation efforts and reflections, and his lack of disciplinary history, we would have imposed an even greater period. In all other respects however, we agree with the proposed consent orders.
7. Accordingly, the Tribunal, for the above stated reasons, makes the following orders:
   1. We record a finding that the respondent has engaged in professional misconduct pursuant to s 196(1)(b)(iii) of the National Law.
   2. The respondent is reprimanded pursuant to s 196(2)(a) of the National Law.
   3. The respondent's registration as a registered health practitioner is cancelled pursuant to s 196(2)(e) of the National Law.
   4. The respondent is disqualified from applying for registration as a registered health practitioner for a period of three (3) years from the date of this order pursuant to s196(4)(a) of the National Law.
   5. The respondent is prohibited pursuant to s 196(4)(b) of the National Law from providing any health service until he is granted registration as a health practitioner under the National Law, whether directly or indirectly, and whether as an employee, contractor, manager, volunteer or personal care attendant including, but not limited to, any health service that involves the provision of care to persons in residential care, or receiving home or community based aged care or disability care.
   6. The respondent pay the applicant's costs of and incidental to the proceedings, to be agreed or assessed in default of agreement, pursuant to s 195 of the National Law.

[1] The Oakden Report 10 April 2017 at p 115.

[2] From the Independent Commission Against Corruption (ICAC).

[3] Either under the Mental Health Act 2009 (SA) or the Guardianship and Administration Act 1993 (SA).

[4] Oakden; A Shameful Chapter in South Australia's History 28 February 2018 at p 14.

[5] Proposed Minute of Consent Orders p 127-128 Joint BOD.

[6] [1938] HCA 34; (1983) 60 CLR 336 AT pp 362-363 per Dixon J.

[7] 2013 Nurse Conduct Code at p 8, [2].

[9] See Roylance v General Medical Council [1999] UKPC 16; [2000] 1 AC 311.

[10] Requiring appointed guardians or substitute decision makers to apply to SACAT for special powers pursuant to s 32 of the Guardianship and Administration Act 1993.

[12] In particular, Craig v Medical Board of South Australia [2001] SASC 169.

[13] Nursing and Midwifery Board of Australia v Little (Review and Regulation) [2020] VCAT 687 at [48]; Nursing and Midwifery Board of Australia v Kumar (Review and Regulation) [2019] VCAT 1099.

[14] Medical Board of Australia v Soo [2017] SAHPT 10 at [47] and [49].

[15] Nursing and Midwifery Board of Australia v Harrison [2023] SACAT 97.

[16] Nursing and Midwifery Board of Australia v Skelton (Unreported: 2022/SHP000033, 21 December 2023).

[17] The first, sworn 28 September 2023 with various Continuing Professional Development/educational certificates and professional character testimonials dated 14 September 2023, 18 September 2023 and 20 September 2023 annexed. The second, sworn on 19 March 2024 with further educational certificates annexed.

[18] [2022] VCAT 881.

[19] [2016] VCAT 408 at [6].