The respondent admitted that she had behaved in a way that constitutes professional misconduct. The parties jointly filed a statement of agreed facts and a joint proposal as to the sanctions that should be imposed. The Tribunal considered whether the proposed sanctions met the objectives of the National Law.

Held, finding professional misconduct and imposing sanctions:

• The conduct of the respondent constitutes professional misconduct. It is conduct that fell substantially below the standard reasonably expected from an enrolled nurse of her training and experience. It is also conduct that is inconsistent with the respondent being a fit and proper person to be registered;
• The respondent is reprimanded;
• The respondent is disqualified from applying for registration as a registered health practitioner for a period of 18 months from the date of this order;
• Until the respondent is re-registered as a health practitioner under the National Law, the respondent is prohibited from providing any health service which involves managing or handling schedule 8 medication.

Health practitioners - Complaint by the Nursing and Midwifery Board of Australia - Professional misconduct - Procuring, dishonestly and without consent of the owner, controlled drugs without justification - Reprimand - Disqualified from applying for registration for 18 months - Prohibited from providing any health service which involves managing or handling schedule 8 medication until re-registered as a health practitioner

Health Practitioner Regulation National Law (South Australia) s 193

Chiropractic Board of Australia v Oborne [2023] VCAT 770

Medical Board of Australia v YZV [2024] VCAT 1134

Pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013, the Tribunal has prohibited the publication of the names of, or any material tending to identify, the patients and colleagues of the respondent referred to by name or initials in the initiating application.

1. This is a disciplinary proceeding against Nicole Richardson (the respondent), a former enrolled nurse. The proceedings were referred to the Tribunal by the Nursing and Midwifery Board of Australia (the Board) pursuant to s 193 of the Health Practitioner Regulation National Law (South Australia) (the National Law).[1]
2. Following the hearing we made a finding of professional misconduct and imposed disciplinary sanctions. We now provide our reasons for decision.
3. The referral document alleged that on multiple occasions between 7 May 2022 and 9 June 2022, whilst working as an enrolled nurse at the Royal Adelaide Hospital (RAH), the respondent misappropriated medication for her own use.
4. The respondent admitted the allegations and admitted that she had behaved in a way that constitutes professional misconduct.

1. The parties made a joint proposal as to the sanctions that should be imposed. It was suggested that the Tribunal should reprimand the respondent and disqualify her from applying for registration 18 months. It was further proposed that, until the respondent should regain registration, she should be prohibited from providing any health service which involved her managing or handling schedule 8 medication.
2. Where there is an agreement between a practitioner and the regulator as to proposed sanction, that is a highly relevant consideration to which the Tribunal should have regard. The view of the regulator as to what is required in the public interest is to be accorded weight. If the Tribunal considers the proposed sanction to be appropriate, it is a desirable practice to accept the proposal. Such promotes the public interest in reducing litigation and saving costs. It has been said that the Tribunal should not depart from a joint proposal without good (or cogent) reasons for doing so.
3. However, the Tribunal is not bound by the proposed sanction. In the end, the Tribunal should impose the sanction that it regards as appropriate. In this jurisdiction, that is the sanction that the Tribunal considers necessary for the protection of the public.
4. Some earlier decisions have suggested that an agreed sanction should be examined to determine whether it is "within the permissible range". Later decisions point out that this is not the correct approach and indeed is contrary to High Court authority.[2] We consider, with respect, that the concept of a "permissible range" is unhelpful and likely to distract the Tribunal from its statutory responsibilities.
5. We have formed the view in the present case that the proposed sanctions are appropriate. They meet the proper objectives of disciplinary action and adequately and appropriately provide for the protection of the public.

1. We make findings of fact in accord with the Statement of Agreed Facts. We summarise those findings as follows.
2. The respondent was born in January 1984. She held registration as an enrolled nurse from August 2013 until that registration lapsed on 1 July 2023. She worked for just under 10 years as an enrolled nurse at the RAH.
3. Prior to the present circumstances, she had an unblemished record. We accept that she was well regarded by her superiors and colleagues. This is illustrated by the fact that she was not dismissed from her employment after the subject misconduct. In our experience, dismissal would be the normal outcome for conduct of this nature.
4. In 2022 the respondent was working on the Colorectal Ward at the RAH. The medication supplies for the ward were secured and dispensed by means of Automated Dispensing Cabinets (ADCs). This included schedule 8 medications as prescribed in the national standard adopted under the Controlled Substances Act 1984 and regulations thereunder.
5. The procedures for using these cabinets were meticulously explained in a directive of the Central Adelaide Local Health Network (CALHN).[3] In order to dispense medication required for a patient, a nurse would "log in" to the ADC, using a personal ID and a fingerprint ID. The ADC would then display a list of ward patients. The nurse would select a patient and the medication required. The ADC would then unlock the compartment in which the medication was kept. The nurse would take the medication, select "accept" on the display, and log off.
6. If a nurse left the ADC but failed to log off, the session would remain active for 20 seconds under the name of the user who was logged on. This provided an opportunity for another person to dispense medication under the identity of the previous nurse.
7. Schedule 8 medication must be dispensed by a registered nurse and witnessed by another (registered or enrolled) nurse.
8. At various times and on various dates between May and June 2022 the respondent utilised an ADC which was still active because the previous user had left without logging off. On each occasion the respondent used the credentials of the "logged-on" registered nurse and her own credentials as the witness in order to dispense schedule 8 medication. The medication was purportedly dispensed for administration to a patient but was in fact dispensed and appropriated for the respondent's personal use.
9. In this way, the respondent misappropriated 95 oxycodone tablets, 85 tapentadol tablets, and 36 diazepam tablets during the relevant period. This involved 67 occasions of misappropriation.
10. In addition, the respondent during above period logged in under her own credentials on 22 occasions and dispensed schedule 3 or schedule 4 medications which were purportedly for administration to patients but in fact were dispensed and appropriated for the respondent's personal use.
11. In all cases of misappropriation, the patient concerned either did not have a prescription for the medication or was not due to receive it at the time.
12. We accept that all medication misappropriated was for the respondent's personal use and no third party was involved. We also accept that the respondent did not consume the medication at work.

1. Honesty and integrity are at the heart of nursing practice.
2. These qualities are particularly important in relation to the handling of prescription medications. There can be no compromise with respect to the stringent legislative and professional requirements that apply to scheduled medication. As the respondent freely recognised, there is no excuse for her conduct. It was dishonest and highly unprofessional.
3. The conduct occurred on multiple occasions and over a period of time. It potentially compromised her colleagues whose credentials she used to misappropriate the medication. There was ample opportunity for reflection, but the conduct continued.
4. We have no hesitation in finding that the conduct constitutes professional misconduct. It was conduct that fell substantially below the standard reasonably expected from an enrolled nurse of her training and experience. It was also conduct that was inconsistent with the respondent being a fit and proper person to be registered.

1. The respondent's misconduct was first detected by her colleagues on 9 June 2022. She was "caught in the act". Within a short time, she admitted her conduct. She acknowledged that the misappropriation had not been isolated. She asked for the opportunity to personally apologise to the nurse whose credentials she had utilised that day.
2. Thereafter, the respondent has admitted everything. She was open and candid throughout the subsequent investigation. She formally acknowledged all allegations as soon as the referral was made to this Tribunal. She has accepted full responsibility for her conduct.
3. The respondent has provided evidence as to the background to her conduct. She had a serious back injury some years ago. She returned to full-time duties in about 2020. Pain management was a major difficulty. She has also suffered abdominal pain and undergone multiple operations and procedures. She became dependent on medication prescribed for pain relief.
4. In 2021 the respondent was referred to Dr R Henning who diagnosed her dependency and treated her with buprenorphine slow-release injections. These were effective and she felt very well. Unfortunately, she decided to cease the injections in December 2021 as she felt she no longer needed them.
5. Following the cessation of this treatment, her condition gradually deteriorated, and she suffered increased pain. She felt she was "spiralling out of control" and described herself as being in a "bad mind frame" by May 2022. She did not want to admit this, even to her family, and did not seek medical assistance. It is in this context that the misappropriation occurred. She felt that she could not stop herself and was taking up to 50mg of oxycodone per day.
6. After her misconduct was detected, she did promptly seek medical assistance. She engaged again with Dr Henning and restarted the treatment with slow-release injections. This has controlled her addiction and provided better pain management. She continues with this treatment. She is also receiving psychological treatment.
7. The respondent has produced appropriate medical evidence to support the above chronology. The reports suggest that she is doing well and has been committed to her treatment. Whilst the risk of relapse cannot be discounted, there is reason for some confidence as to the future.
8. The reports suggest that the respondent has good insight into her addiction, the risks of relapse, and the necessity for ongoing treatment. They also confirm, as we observed, that she has good insight into the seriousness of her conduct and that she is extremely remorseful.
9. The purpose of disciplinary action is always protective. Although sanctions may have a significant adverse effect on a practitioner, they are never imposed for the purpose of punishment. Sanctions are imposed to assure the public that standards within the profession are being maintained, that serious misconduct will not be tolerated, and that it will be met with significant consequences. In the same way, the Tribunal deters other practitioners who might otherwise act in a similar way and promotes public confidence in the profession.
10. The proposed sanctions are appropriate and necessary for these purposes.
11. It is important that the Tribunal impose a reprimand to indicate its utter condemnation of the dishonest and unprofessional conduct.
12. The period of disqualification is required in order to assure the public, and to bring home to other practitioners, that such conduct will not be tolerated and will lead to significant consequences.
13. The respondent may apply for re-registration after the period of disqualification. She must then convince the Board that future risks are appropriately addressed and that she is a fit and proper person to be registered.
14. In the interim, it is appropriate to prohibit the respondent from providing any health service which involves her managing or handling schedule 8 medication.
15. We wish the respondent well for the future. We observe that it will be important that she maintains her psychological support as well as her pain management treatment.
16. We impose the following sanctions:

(b) The respondent is disqualified from applying for registration as a registered health practitioner for a period of 18 months from the date of this order.

(c) Until she is re-registered as a health practitioner under the National Law, the respondent is prohibited from providing any health service which involves her in managing or handling schedule 8 medication. "Health service" has the meaning that it bears in the National Law.

1. The respondent is to pay the Board's costs of this proceeding to be agreed or fixed by the Tribunal.

1. [1] The National Law is to be found in schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the HP Act).

[2] Chiropractic Board of Australia v Oborne [2023] VCAT 770 at [15]- [19]; Medical Board of Australia v YZV [2024] VCAT 1134 at [19]- [22].