"(1) This section applies if, immediately before the participation day for a participating jurisdiction, a local registration authority for the jurisdiction had started but not completed dealing with a complaint or notification about a person registered in a health profession by the authority.

(a) the complaint or notification is taken to be a notification made under this Law and is to be dealt with by the National Board for the health profession; and

(b) the notification is to continue to be dealt with under the Act of the participating jurisdiction under which it was made, and any proceedings or appeal relating to the notification may be dealt with, as if that Act had not been repealed.

(3) For the purposes of this section, the Act of the participating jurisdiction applies -

(a) as if a reference to the local registration authority were a reference to the National Board; and

(b) with any other changes that are necessary or convenient.

(4) The National Board must give effect to a decision made on an inquiry, investigation, proceeding or appeal completed under the Act of the participating jurisdiction as if it were a decision under this Law.

(5) This section does not apply to a co-regulatory jurisdiction."

1. The participation day is the day on which the Health Practitioner Regulation National Law (Victoria) Act 2008 came into operation which is 1 July 2010.[3]
2. Section 289(1) only applies where:
   • there has been a notification before the participation day.
   • the Tribunal had not started dealing with the notification before the participation day.
   • the dealing with the notification had not been completed by the participation day.[4]
3. In other words, if a hearing commenced on 30 June 2010 and was completed on 2 July 2010 then section 289 applies.
4. Section 289 (1) was intended by the legislature to cover the situation referred to in the preceding paragraph. That is the plain meaning of the words "had started but not completed dealing with". It was not intended to cover the situation relevant to this proceeding.
5. We think that the transitional provision which applies to the facts of this proceeding is section 288, which is in the following terms:

"(1) This section applies if, immediately before the participation day for a participating jurisdiction, a local registration authority for the jurisdiction had received but not started dealing with a complaint or notification about a person registered in a health profession by the authority.

(2) From the participation day, the complaint or notification is taken to be a notification made under this Law to the National Agency.

(3) This section does not apply to a co-regulatory jurisdiction."

1. Clearly the applicant was the local registration authority. It had received a complaint regarding the respondent. It had not started dealing with the complaint. Instead it referred it by notification to the Tribunal.
2. In those circumstances because the Tribunal had not started dealing[5] with the notification then subsection (2) becomes relevant. It provides that in those circumstances the notification is taken to be made under the Health Practitioner Regulation National Law (Victoria) Act 2008, and therefore, it is taken to be a notification to the relevant National Agency.
3. Mr Reid informed the Tribunal that the National Agency is the "Nursing and Midwifery Board of Australia". Ms Wischer agreed.
4. Therefore, the first matter which we must deal with is the application made by Mr Reid for leave to amend the title of this proceeding to read "Nursing and Midwifery Board of Australia" and by deleting reference to "Nurses Board of Victoria". We granted the leave sought.
5. It must follow that the proceeding is to be determined in accordance with the provisions of the Health Practitioner Regulation National Law (Victoria) Act 2008.
6. Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2008 provides that the schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland [6] applies as a law of Victoria and is to be referred to as if it were a part of the Health Practitioner Regulation National Law (Victoria) Act 2008.
7. Section 6 of the Health Practitioner Regulation National Law (Victoria) Act 2008 provides that the VCAT is declared as the responsible Tribunal exercising jurisdiction for the purposes of the Health Practitioner Regulation National Law (Victoria).

1. The Health Practitioner Regulation National Law (Victoria) Act 2008 and the Health Practitioner Regulation National Law (Victoria) have the objective of establishing a national registration and accreditation scheme relevant to the "health profession" as defined in section 5. It includes nursing and midwifery.
2. The Health Practitioner Regulation National Law (Victoria) is a lengthy and complex legislative scheme. It is not necessary in this proceeding to summarise it save where it is necessary to point to the powers vested in the Tribunal in dealing with the subject matter of this proceeding.
3. The relevant provisions which we will deal with in short are:
   • section 5 which defines "unprofessional conduct" and "professional misconduct.
   • section 222 requires the applicant to keep a public National register which must include the names of all its health practitioners[7] who are registered by the Board, and the names of all health practitioners who were registered by the Board and whose registration has been cancelled by an adjudication body.[8]
   • section 290 provides that where the respondent's registration was suspended under the Health Professions Registration Act 2005 it is taken to be a suspension under Health Practitioner Regulation National Law (Victoria).
   • section 193 (1) (a) (i) provides that the applicant must refer a matter concerning the registered health practitioner if it believes, among other things, that the practitioner has behaved in a manner which constitutes professional misconduct.
   • Section 193(2) provides that if the responsible Tribunal (the VCAT) decides that the respondent has behaved in a way with the constitutes professional misconduct it has a discretion to deal with him in any one of the ways set out under subsection (2).
4. We think the foregoing requires the Tribunal to apply the Health Practitioner Regulation National Law (Victoria) for the reasons set out above.
5. Before turning to the legislative scheme in any further detail it is now convenient to look at some of the background facts.

1. The parties compiled a Tribunal book[9] containing all of the relevant materials which each desired us to have. The parties are to be commended for their excellent preparation. It enabled each of us to read those materials prior to the commencement of the hearing of the proceeding, and to obtain a very good understanding of the issues which were likely be raised by the parties.
2. The only oral evidence which was called was from the respondent himself. He gave lengthy evidence in addition to his statement.[10] Mr Reid cross-examined the respondent.
3. After hearing the respondent's evidence we called upon Ms Wischer to give a short outline of the submissions she intended to make regarding the orders which she considered were appropriate in our disposition of this proceeding. We invited Mr Reid to do the same.
4. It was clear to us that Ms Wischer submitted that the suspension imposed upon the respondent was an adequate penalty, and that we should feel free to impose conditions upon the respondent if we saw fit. Mr Reid submitted that we should impose a period of suspension of up to two years after taking into account the period of suspension already served by the respondent.
5. We made it clear to the parties that we considered that the respondent was a witness of truth; that he had candidly, honestly and accurately give an account of his misconduct; that he showed compelling remorse for his conduct, and that he had taken steps to rehabilitate himself which were appropriate in all respects, and a recognition by him of his need to take bold strides to rectify his approach to nursing in order to persuade us that there was only a remote likelihood of a recurrence of the conduct which brought him before us.
6. We announced that we considered that the period of suspension served was an adequate penalty in all of the circumstances, however, we considered that there should be conditions imposed upon the respondent which we will outline later in these reasons.
7. After some debate with Mr Reid and Ms Wischer they indicated that there was no necessity for us to deliver lengthy reasons, but rather summary reasons for the purpose of the orders being readily understood.
8. The following is a short summary of the background facts relevant to the respondent's misconduct:
   • the respondent was first registered as a nurse some 20 years ago. His sub-specialty in nursing is in psychiatric nursing.
   • on 14 March 2009 a work colleague committed suicide. It impacted upon the respondent emotionally.
   • on 24 April 2009 a male inpatient at the adult acute unit of Ballarat Health Services committed suicide at a time when the respondent was rostered as being in charge of that unit.
   • on that evening the respondent's attention was directed to a female patient who was suffering from a psychiatric disorder. In the course of dealing with her the 2 a.m. nursing round was delayed by about 15 minutes. It was shortly after the nursing round began that the male patient was found dead in his room.
   • the respondent was significantly affected by the emotional impact upon him of both suicide deaths.
   • a number of other matters occurred which added to the respondent's anguish. He gave a statement to investigating police that he last observed the male patient alive at 1:55 a.m. when it should have read 12:55 a.m..
   • the respondent was investigated by the Ballarat Health Services. He was stood down on 30 April 2009. He was given a form to sign offering his resignation. After further investigation of him his employment was terminated on 25 May 2009.[11]
   • the respondent had obtained medical treatment from a general practitioner, and later Dr Pickavance who prescribed him Chlorpromazine for anxiety. Dr Pickavance continues to treat the respondent.
   • on 5 June 2009 the plaintiff engaged in an extensive drinking episode which involved drinking about nine glasses of scotch and coke on top of his medication. He went to a friend's home, and from there to the home of DG at about 3 a.m. who was a patient of Ballarat Health Services who was suffering from a psychiatric illness.
   • after arriving at the home of DG the respondent became intimately involved with her. They engaged in an act of sexual intercourse. He left her home at about 6 a.m. Thereafter he had some contact with her.
   • during the contact he had with DG he agreed to provide her with some his Chlorpromazine. He did so on 11 June 2009 at about 1 a.m. He provided her with about four tablets.
   • subsequently a complaint was made to the police. He was charged with an offence under the Drugs, Poisons and Controlled Substances Act 1981 for supplying the medication to her. He pleaded guilty.
   • after a complaint was made to the Nurses Board of Victoria his registration was suspended, and remains suspended.

1. Professional misconduct is defined in section 5 of the Health Practitioner Regulation National Law (Victoria) in the following terms:

" 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."

1. After giving due consideration to the respondents evidence, it seems to us that it should be characterised as professional misconduct.
2. Our reasons for so finding are:
   • DG was known to the respondent as a person with a psychiatric illness who was a patient of Ballarat Health Services, and very probably a person who was vulnerable and easily influenced into a relationship with a health professional with whom she had contact.
   • the respondent had consumed a cocktail of Chlorpromazine and significant quantities of alcohol on the night he visited DG, and in a setting where he himself was suffering from a psychiatric illness.
   • the respondent must have known something of DG's background because he was able to make his way to her home at 3 a.m. We infer that the respondent anticipated that DG would be receptive to any overtures he might make to her. We consider that inference to be open given that he went to her home presumably with a purpose in mind. Perhaps not intending to engage an act of sexual intercourse, but not being averse to that proposition if it arose. However, it must be remembered that the respondent himself was in a vulnerable state at that time.
   • the respondent failed to immediately take steps to cease any further relationship with DG. His continuing contact with her encouraged and deepened her relationship with him, and as a result saw him provide her with Chlorpromazine under pressure from DG. He took no step to determine whether that medication would have had a deleterious effect upon her.
   • the respondent put DG in a position where the relationship that she believed had developed might have had disastrous consequences for her given her psychiatric illness, her vulnerability and her increasing emotional reliance on the respondent.
3. We are in no doubt that the conduct just described is below the standard reasonably expected of a psychiatric nurse of 20 years experience, and we think substantially below that standard, and therefore, constitutes professional misconduct.
4. We are fortified in reaching that conclusion because the definition of "unprofessional conduct" is premised on the conduct being "of a lesser standard" than that which might be reasonably expected of the health practitioner when judged by the public or the respondents professional peers.
5. To categorise the respondent's conduct as unprofessional conduct would be to fail to recognize just how serious his conduct was both in a professional setting and with respect to DG.

1. A finding of professional misconduct is the trigger for the Tribunal to consider the matters referred to in section 193(2) which are in the following terms:

"(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 -

(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;

1. Subsection (2) is a general provision intended to apply to all health practitioners. Some of the paragraphs clearly apply to someone in private practice other than someone who would ordinarily be a health practitioner under employment, such as, a nurse.
2. It would be unusual to see a nurse carrying on a private practice consistent with what, for instance, a medical practitioner or a physiotherapist usually do in their practices.
3. Subsection (2) is not all-inclusive when setting the form of conditions that might be imposed upon a health practitioner such as a nurse. The paragraphs under it are examples only. Therefore, we consider that the discretion vested in us is to impose conditions upon the respondent using the examples in the paragraphs is guidance.

1. We consider that it is appropriate to lift the suspension applying to the respondent's capacity to practice as a nurse as and from the date of the orders referred to herein.
2. However, we consider that it is appropriate to impose conditions upon the respondent for a period of 12 months.
3. In that period of time we consider that it is appropriate:
   • that the respondent obtain reasonable treatment recommended by Dr Pickavance; that he followed the lawful directions made by a Dr Pickavance in that regard, and that Dr Pickavance provide the applicant with medical reports relevant to the respondent's psychiatric state of health.
   • that the applicant direct the respondent to attend a medical practitioner, for an independent medical evaluation, of its choosing to assess the respondent's fitness to practice as a nurse, and to provide a medical report relevant to that subject.
   • that the request to Dr Pickavance for a medical reports not exceed a medical report approximating to the six-month mark and the 12 month mark from the date of these orders.
   • that the direction to the respondent to attend a medical practitioner to assess his fitness to practice as a nurse not exceed a medical examination and medical report approximating to the six-month mark and the 12 month mark from the date of these orders.
   • that the cost associated with the provision by Dr Pickavance of medical reports and the attendance upon an independent medical evaluator and the medical reports produced by he/she shall be borne by the respondent.
4. Should there be any doubt about the meaning of the orders we have made then liberty will be reserved to the parties to apply to Vice President, Judge Misso for further directions upon the giving of seven days written notice by one party to the other and to the Associate to Vice President, Judge Misso.

[2] The National Law is divided into 7 schedules each dealing with discrete subject matter

[3] Section 250 of the Health Practitioner Regulation National Law (Victoria) Act 2008

[4] The section uses the word "dealing". From its context I have interpreted it to be synonymous with "hearing" otherwise the section makes no sense

[5] The word "dealing" should be read as a synonym for "hearing"

[6] The Queensland Act forms part of the Health Practitioner Regulation National Law (Victoria) Act 2008

[8] "adjudication body" is defined in section 5 and includes "a responsible Tribunal, in other words, the VCAT: see section 6 of the Health Practitioner Regulation National Law (Victoria) Act 2008

[11] However, we were informed by Ms Wischer that there was a wrongful dismissal claim which settled on confidential terms of settlement. We were given to understand that the lifting of the suspension will designate the termination as a resignation. Mr Reid confirmed that this was the case