Administrative and Disciplinary - Nursing and Midwifery Board of Australia - Nursing - Enrolled nurse - Professional misconduct - Criminal offences - Charges and convictions - Engaging in humiliating or degrading filming of others - Engaging in conduct which could bring the profession into disrepute - Directing or inciting a registered health practitioner to act unprofessionally - Failure to notify Board of criminal charge and conviction - Determination of disciplinary sanction for overall conduct - Overall conduct amounts to serious professional misconduct and demonstrates unfitness for practice - Severe disciplinary action necessary to protect the public and ensure that public confidence and the standards of the profession are upheld - Respondent no longer registered - Reprimand given in the strongest terms - Disqualification from applying for registration imposed for a period of eight years - Prohibition from providing any health service for a period of eight years - Respondent to pay $2,000 in costs to the complainant

Health Practitioner Regulation National Law (South Australia) Act 2010 s 4

Summary Offences Act 1953 s 26

NMBA v Kumar [2019] VCAT 1099

1. Ms Diosa Rankine (the respondent) was formerly registered as an enrolled nurse under the provisions of the Health Practitioner Regulation National Law (the National Law).[1] Her registration lapsed on 1 July 2017 when she chose not to seek renewal. She has since been unregistered.
2. Pursuant to s 193 of the National Law, the complainant (the Board) formed the view that the respondent had behaved in a way that constituted professional misconduct. The allegations related to conduct in 2013-2015, as well as failure to reports certain matters to the Board in 2016 and 2017.The Board referred the allegations to the former SA Health Practitioners Tribunal. The matter was subsequently transferred to this Tribunal in August 2019 when the former Tribunal was dissolved and its jurisdiction conferred on SACAT[2].
3. The respondent had not attended any of the directions hearings held by the former Tribunal and, until very recently, had not indicated any intention to participate in the proceedings. However, she did attend when the matter was listed for hearing before this Tribunal on 3 October 2019. She expressed a wish for the matter to be finalised that day and was clear that she did not want an adjournment to get legal advice or for any other reason. The Tribunal was careful to ensure that she understood the nature of the proceedings, the allegations against her, and the potential outcomes. As English is the respondent's second language, an interpreter was engaged to assist with communication.
4. The matter was adjourned whilst the parties conferred at length concerning the matters admitted and those in dispute. The parties returned to advise the Tribunal that there was an agreed position as to each of the major allegations. The Tribunal was satisfied that the respondent's rights had been properly observed and proceeded accordingly to hear the matter as requested by the respondent.
5. After receiving evidence and submissions from both parties, the Tribunal reserved its decision.
6. The Tribunal made an order on 18 October 2019. The Tribunal was satisfied to the requisite degree that the respondent was guilty of professional misconduct. Disciplinary action was imposed under s 196 of the National Law as follows:
   • (a) A reprimand in the strongest terms
   • (b) The respondent was disqualified from applying for registration as a registered health practitioner for a period of eight years.
   • (c) The respondent was prohibited from providing any health service (whether as an employee, volunteer, or otherwise) for a period of eight years.
7. The Tribunal also ordered (as had been agreed) that the respondent pay the Board's costs fixed at $2,000.00.
8. In order to explain the Tribunal's reasons for decision, it is sufficient to give a broad summary of the matters that were proved and/or admitted before us.
9. The respondent was born on 8 November 1966. She was a person of mature age when these events occurred. She had previously worked as a carer in an aged care facility. In 2008 she qualified as an enrolled nurse and commenced working in that capacity. From 2010 she was employed on a permanent part-time basis at Flinders Medical Centre.
10. There were six allegations to be dealt with by the Tribunal:

1. On 4 February 2015 the respondent was working as an enrolled nurse at the Flinders Medical Centre. She was assigned to care for a patient whom we shall call AB. AB was an 85 year-old lady with dementia. The respondent used her mobile phone to make a video recording of AB in her bed. The recording is 34 seconds in length. In it, AB shows indications of her dementia. She is dressed in hospital clothes. She appears to be distressed by the respondent's actions in taking the video. The respondent admitted to the Tribunal that she also thought that was so.[3] The Tribunal has viewed the video and we are appalled that a health professional would have taken it.
2. The respondent admits that she subsequently showed the video to her then partner and to a friend. There is evidence that she was laughing when she did so and thought the video was funny.[4] The respondent claims that she took the video to show her partner how difficult her job was in caring for patients with dementia. We do not accept this and will explain why later in these reasons.
3. Following the acrimonious breakdown of her relationship about a year later, the respondent's conduct in taking the video was reported to the Hospital, the video was uploaded to social media and also provided to a TV station. It was the subject of a story screened on the television programme, Today Tonight. Segments from the video were shown in the programme with pixilation to obscure the identity of AB. It is not suggested that the respondent uploaded the video to social media or intended it to be given any public exposure. Nonetheless that occurred with devastating results.
4. The respondent was charged under s 26B of the Summary Offences Act 1953 with engaging in humiliating or degrading filming of others. She entered a plea of guilty.
5. A victim impact statement was provided by AB's daughter. It spoke of the traumatising effect of "watching my mum being humiliated and her dignity being violated". It is clear that the video caused great distress to the family of AB.
6. The matter was dealt with by Magistrate J McGrath on 15 May 2019. In her Remarks on Penalty her Honour stated:

Section 26B provides a significant penalty for those who engage in humiliating or degrading filming of others. The offending in this circumstance is a serious breach of trust on a number of levels. [AB] was a patient in a large public hospital. A hospital relied on to service the medical needs of a large portion of the community. In addition, she was elderly, aged 85, suffering from dementia and was filmed in an exposed state. This exposure was not just her verbal interaction with you but also in practical terms the gown she was wearing did not cover and did not protect her modesty.

It must be said that she was extremely vulnerable.

You were a health professional in an occupation where privacy, respect, dignity and safety of a patient are paramount and expected.

1. The respondent was sentenced on an agreed factual basis. She was convicted and released on a good behaviour bond for a period of 12 months.
2. It should be noted that there is evidence before this Tribunal which was not before the Court and which casts doubt on some aspects of the agreed facts upon which the sentencing occurred. That is not at all surprising, given the different nature of the proceedings and the different standards of proof that apply. Our findings are slightly different to the agreed facts before the Court, as will appear below.
3. Before leaving the first allegation, it is convenient to note that the respondent's employment was terminated as a result of these matters.

1. The respondent admitted to the Tribunal that the occasion referred to above was not the first time she had made a video recording of a vulnerable patient. She admitted doing so on 17 June 2014 when she had been assigned to look after another patient suffering from dementia. It is apparent from the hospital notes that this patient, whom we will call CD, was initially very disturbed and difficult to care for. The respondent recorded video of her on her mobile phone and uploaded the video to a closed Facebook group which incorporated the respondent, her partner and four other friends.
2. No copy of this video has been found but it is described in statements given by members of the Facebook group.[5] The video showed an old lady, with no pants but possibly wearing a nappy and holding a doll. The Facebook communications showed that at least one member of the group thought the video funny and we consider that the respondent uploaded it because she also found it funny. The respondent admitted as much in her evidence to the Tribunal[6]:

MR STEVENS:

....Mr [Schatz] has read out some parts of the evidence and he says that those parts of the evidence show that when you were showing these videos to people, or sending them on Facebook, you were giving an indication that you were laughing or thought it was a joke---

MS RANKINE

Yes [indistinct]

MR STEVENS

---to show them these videos. What do you say about that?

MS RANKINE

Yes, I - I admit that, sir, that I was laughing because we were just having fun in a group chat, we were just having fun, so I just joke. I just joke with them.

INTERPRETER

What she is saying is that she was commenting or sharing the video that she finds funny with her friends, because she feels confident with them.

1. The respondent also told the Tribunal that she took the videos to show her friends how difficult her patients were and how stressed she was. Mr Schatz pointed out that her then partner was also an enrolled nurse who had previously worked with her in aged care. He would have been well aware of the difficulty of caring for such patients without having to be shown a video. On the totality of the evidence, we are comfortably satisfied that the major reason for taking the two videos was to entertain her friends and the respondent did so without regard to the violation of the rights and dignity of the patients concerned.

1. Facebook posts that were before the Tribunal demonstrated that the respondent claimed to her friends that she commonly over-medicated difficult patients to make them easier to care for. She claimed that she gave more medication than the treating doctor had prescribed. She referred to it as "happy pills". Specific Facebook posts on 17 June 2014 related to claims of over-medicating the patient CD on that day.
2. The respondent claimed, and the Board did not in the end dispute, that these were instances of "bragging" to her friends and that the over-medication did not actually occur. We deal with the matter on that basis.
3. Nonetheless, the making of such claims clearly had the potential to bring the profession into serious disrepute and to destroy public confidence in health professionals. We note, in this regard, that her friends appear to have believed she was actually over-medicating. The "bragging" was serious misconduct.

4. Attempt to obtain prescription medicine illegally

1. Mobile phone records demonstrate, and the respondent admitted, that she texted a friend who was a nurse on duty at the Flinders Medical Centre on 8 February 2013 and asked the friend to essentially steal prescription medicine from Hospital supplies in order to provide it to the respondent. The friend eventually responded that it was not possible on that day. Counsel pointed out that it is a breach of s 136 of the National Law to incite a registered health practitioner to act unprofessionally. The respondent's conduct was unethical and wrong, regardless of the fact that the medicine was never supplied.

1. The respondent failed to notify the Board within seven days when she was charged with the offence under the Summary Offences Act. She again failed to notify the Board when convicted. She explained to the Tribunal that she had stopped practising and did not intend to return. No doubt, she was distressed by the charges brought against her. However, this is no excuse. The notification provisions are important. These failures simply add to the picture of a person who has paid scant regard to professional responsibilities.

1. The Tribunal must look at this conduct overall. The respondent has demonstrated absolute disrespect for the needs, dignity and rights of vulnerable patients. She has engaged in conduct calculated to bring the profession into serious disrepute. She has shown a disregard for legal and ethical responsibilities. Although expressing remorse and devastation at the personal consequences she has suffered, the respondent has, in our view, demonstrated limited insight into the gravity of her conduct. The totality of the evidence demonstrates serious flaws of character which are inconsistent with the respondent being fit to practice as a nurse.
2. The Tribunal makes a finding of professional misconduct and unfitness to practice.
3. Although her remorse for particular actions and their effect on others is no doubt genuine, the respondent has not to any extent demonstrated the degree of reformation or insight that would be necessary to suggest that a return to practice would be appropriate in the foreseeable future. That may be, however, due to the fact that the respondent states that she has no wish to ever return to practice or any similar employment. It may be that the respondent has seen no need to address that issue.

1. It goes without saying that the conduct requires a severe disciplinary response, both to protect the public from a person who is unfit to practice and to bring home to the respondent and others the seriousness of this professional misconduct. The public must be assured that such conduct will not be tolerated, vulnerable persons will be protected, and standards will be upheld.
2. The parties put forward a joint proposal as to the appropriate disciplinary action. They suggested a reprimand, and a disqualification and prohibition for a period of ten years.[7] A strong reprimand is clearly appropriate. We think, with regard to comparative cases, that ten years is slightly too long, albeit that the respondent agreed to it and stated that she does not wish to re-register or work in any relevant area. We are mindful that the respondent was unrepresented.
3. The respondent will be reprimanded. There will be a disqualification for a period of eight years, during which the respondent may not apply for registration. Thereafter, she would have to convince the Board that she has undergone a reformation of character and was then fit to be registered. That would be likely to be a significant hurdle. We appreciate that it is unlikely the respondent will ever return to practice.
4. We also prohibit the respondent from providing any health service for a period of eight years. We are concerned that she should not be able to provide health services to vulnerable persons in settings such as disability services or aged care homes. She says that she does not intend to. There are areas, of course, that are not regulated and, after the period of eight years has expired, it will be for potential employers to assess the respondent's suitability in the light of her history and subsequent conduct.
5. We have ordered by consent that the respondent must pay costs to the complainant in the agreed sum of $2,000.00.
6. The respondent has suffered greatly as a result of her own misconduct. She has lost her career as a nurse and has essentially been unemployed since these events occurred. The events and the public criticism and scrutiny have greatly affected her health. The respondent has paid a significant price for her own behaviour. Now that these proceedings are finalised, it is to be hoped that the respondent will find the support she requires to re-establish her life on a more positive pathway.

[1] The Health Practitioner Regulation National Law (South Australia) is incorporated as part of the law of this jurisdiction by s 4 of the Health Practitioner Regulation National Law (South Australia) Act 2010. The National Law is found in schedule 2 to the Act.

[2] Statutes Amendment (SACAT) Act 2019 s 112.

[5] See, for example, exhibit C1 at page 221

[7] The complainant cited and we rely on the decision of VCAT in NMBA v Kumar [2019] VCAT 1099 as to the power of the Tribunal to impose those orders.