Under s 196(2) of the National Law, the Tribunal makes the following determinations:

1. In the context that since 30 March 2017, Ms Sotingco has been suspended from nursing practice, her registration by the Nursing and Midwifery Board of Australia (the Board) is suspended for a further six months, commencing on 17 October 2018.

1. Ms Sotingco's registration by the Board is subject to the condition that:

1. Within four months of the imposition of these conditions, Ms Sotingco must submit to the Board a reflective practice report in relation to her completed ethical education (Elder Abuse Prevention Course completed on 26 May 2017 and Law and Ethics for Registered and Enrolled Nurses Seminar presented over 19 and 26 May 2017); 2. Upon resuming face-to-face contact with patients, Ms Sotingco must be mentored by another registered health practitioner in relation to ethical obligations of the profession;

1. For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner;

1. The mentoring must comprise a minimum of six sessions with each session being of one-hour duration occurring monthly over a six-month period; 2. Within four months of the notice of the imposition of the conditions requiring the mentoring set out herein, Ms Sotingco must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. Ms Sotingco must ensure that the nomination is accompanied by acknowledgement on the approved form (HPNA16) from the nominated person; 3. Within four months of the notice of the imposition of the conditions requiring the mentoring set out herein Ms Sotingco must provide to AHPRA on the approved form (HIP 16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions: 1. every two months following the commencement of the mentoring relationship;

at the end of the mentoring relationship in order to confirm the outcomes of the mentoring;

1. whenever the mentor has a concern or becomes aware of a concern regarding Ms Sotingco's conduct or professional performance; and
2. when otherwise requested by AHPRA or the Board;

1. In the event an approved mentor is no longer willing or able to provide the mentoring required, Ms Sotingco is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by Ms Sotingco within 21 days of becoming aware of the termination of the mentoring relationship; and
2. Within one month of the conclusion of the mentoring Ms Sotingco must provide a report demonstrating, to the satisfaction of the Board, that she has reflected on the issues that gave rise to the condition requiring that she attend for mentoring and outlining how Ms Sotingco has incorporated the lessons learnt in the mentoring into her practise.

1. Under s 196(3) of the National law, the review period concerning the above condition is 14 months from 17 October 2017, the date of these findings and determinations.

1. This proceeding results from the Nursing and Midwifery Board of Australia (the Board) under the Health Practitioner Regulation National Law (the National Law)[1] in January 2017 referring allegations against Ms Beverley Sotingco to VCAT concerning her stealing credit card information from an elderly patient in the nursing home where she worked, using it to buy online cologne, toiletries and beauty products from Chemist Warehouse to the value of $443 and unsuccessfully attempting to buy online clothes from a company to the value of $1,521 and her subsequent convictions.
2. Ms Sotingco, now aged 32, was first registered as a nurse in Australia on 9 August 2012. This followed her qualifying as a registered nurse in the Philippines, working for about a year in Manila as a nurse, emigrating to Australia and working in aged care for about three years for two employers, one after the other.
3. In late January 2017, the handbag of an elderly patient at the nursing home where Ms Sotingco worked sat in the nurses' station for about a week. On the handbag being returned to the patient, she discovered that her credit card had been used without her knowledge, as shown on her bank statements. This related to the above purchase and attempted purchase. While the purchase from Chemist Warehouse had been completed, when the issue of alleged theft was raised with the clothes company, it stopped the transaction.
4. The Police investigated and on about 18 February 2017 charged Ms Sotingco with Obtaining Property by Deception (under s 81(1) of the Crimes Act 1958 (Vic)) and Attempting to Commit an Indictable Offence (Namely Obtaining Property by Deception), under s 321M of the Crimes Act.
5. Through her lawyers, on 20 February 2017 Ms Sotingco notified the Board that she had been so charged, as required under s 130 of the National Law. About this time Ms Sotingco resigned her job.
6. Following a process under the National Law, during which Ms Sotingco indicated she intended to plead not guilty to the charges, on 30 March 2017 the Board took immediate action under the National Law. It suspended Ms Sotingco's nursing registration, having decided her ongoing registration posed a serious risk to persons.
7. On 15 June 2017, Ms Sotingco pled guilty before the Magistrates' Court of Victoria. The Court found her guilty of the charges against her, convicted her, ordered her to pay compensation and released her subject to an undertaking to be on good behaviour for a period of 12 months. Ms Sotingco repaid the $443 to the patient.
8. In sentencing Magistrate Crisp said in part:

Nurses are in an inherent position of power and trust in comparison to the people that they care for and have an obligation to protect this position of trust. Ms Sotingco has demonstrated a preparedness to engage in dishonest conduct and to exploit the position of trust and responsibility for her own gain. The conduct occurred in a facility providing care to particularly vulnerable members of the community, especially elderly residents and patients. The particular conduct alleged amounts to serious criminal offences carrying a maximum length of imprisonment of 10 years ... I think that it's important to mark the fairly almost sacred trust that people put in nurses in facilities like this ...

1. The Magistrate made it clear that in this situation the conviction would remain as part of Ms Sotingco's criminal history.
2. For the last 18 months (approximately) Ms Sotingco, suspended as a nurse, had struggled with unemployment, with limited finances, with the breakup of relationships, with the work she has been able to find paying substantially less than her previous employment.
3. That said, she took proactive steps to manage the situation in which she finds herself and towards her rehabilitation. Before facing Court in June 2017, Ms Sotingco saw a psychologist, seeking a report for the Court and in May 2017 completed an Elder Abuse Prevention Course and a Law and Ethics for Registered and Enrolled Nurses Seminar.
4. In a Clinical Psychological Report in June 2017, Ms Marika Tashevska, Clinical Forensic Psychologist, described Ms Sotingco as diligent, liking to plan and organise her life, including work, study and her personal life. Ms Tashevska described Ms Sotingco as introverted, not ambitious, not time urgent and not competitive, unsophisticated in her thinking, with a naive personality. Ms Tashevska in part concluded her report, saying:

Since coming to the attention of the legal system, Ms Sotingco has suffered with acute anxiety and symptoms of depression. She would feel that her life has been turned upside down ... Ms Sotingco has insight into the severity of the alleged offences and is unlikely to offend in the future.

1. While Ms Tashevska recommended Ms Sotingco seek psychological counselling to assist her to deal with her situation, we were advised she did not do so due to financial constraints.

1. On 13 October 2018, the case came before us for hearing. Both parties were legally represented.

1. The substantial allegation before VCAT at hearing was that Ms Sotingco had engaged in "professional misconduct" within the meanings of the definition of "professional misconduct" in s 5 of the National Law in that she was convicted as described above.
2. The parties had provided an Agreed Statement of Facts and Proposed Findings and Determinations (the Agreement) and a Tribunal Book, being a collection of relevant documentary evidence.
3. As set out in the Agreement, Ms Sotingco admitted that her conduct constitutes professional misconduct. The Board and Ms Sotingco jointly proposed the determinations discussed below, which after discussion we accepted.
4. At the end of the hearing, we announced our finding and determinations, saying we would later provide these orders and reasons.

1. We found that the relevant events occurred as set out in the Agreement and in the Tribunal Book, as described above.

1. Under s 192(1) of the National Law we find Ms Sotingco engaged in professional misconduct within the meaning of paragraph (a) and (b) and (c) of the definition in section 5 of the National Law.
2. We agree with the Board's submission that:

1. The conduct for which Ms Sotingco was convicted and sentenced, are matters of dishonesty and deception which may attract a term of up to 10 years' imprisonment. Magistrate Crisp found her guilty of the charges and convicted her, releasing her subject to a 12-month good behaviour undertaking; 2. The offending demonstrates intentional and planned, or at least opportunistic, criminal conduct which was, on having been successfully carried out (the purchase from Chemist Warehouse) was attempted to be replicated (the attempted purchase from the clothing company). Premeditation is evident at least in the time after stealing from the handbag until later making and attempting to make purchases; and

1. Ms Sotingco's dishonesty was directed towards an elderly and vulnerable patient under her care.

1. The Code of Professional Conduct for Nurses in Australia in force at the time of the offending[2] says:

A breach of the Code may constitute either professional misconduct or unprofessional conduct. For the purposes of this code, professional misconduct means to "the wrong bad or erroneous conduct of a nurse outside the domain of his or her practice; conduct under fitting and has (e.g. ... theft ...)" ...

Nurses promote and preserve the trust and privilege inherent in the relationship between nurses and people receiving care

1. An inherent power imbalance exists within the relationship between people receiving care and nurses that may make the persons in their care vulnerable and open to exploitation. Nurses actively preserve the dignity of people through practised kindness and respect for the vulnerability and powerlessness of people in their care. Significant vulnerability and powerlessness can arise from the experience of illness and the need to engage with the healthcare system. The power relativity as between a person and a nurse can be significant: particularly where the person has limited knowledge; experiences pain and illness; needs assistance with personal care; belongs to a marginalised group; or experiences an unfamiliar loss of self-determination. This vulnerability creates a power differential in the relationship between nurses and persons in their care and must be recognised and managed. ...
2. Nurses take all reasonable steps to ensure the safety and security of the possession of the property of persons requiring and receiving care.
3. These principles are repeated in the Board's current Code of Conduct for Nurses,[3] in part at Principle 1.2 Lawful Behaviour and Principle 4.1 Professional Boundaries.
4. Ms Sotingco breached those boundaries in a most serious fashion. Her conduct was substantially below the standard reasonably expected of a registered health practitioner of her level of training and experience. It also involved more than one instance of unprofessional conduct that, when considered together, amounts to conduct which is substantially below the standard reasonably expected of such a person. Involving as it did detriment to an elderly and vulnerable patient, for which Ms Sotingco was convicted, her conduct was inconsistent with her, at the time, being a fit and proper person to hold registration in the profession.

1. Once VCAT has made findings in a proceeding such as this, the next step is to make the determinations necessary to protect the public and uphold the profession's reputation.
2. VCAT's role is to protect the public, not to punish the practitioner. That said, its decisions may involve a degree of punishment for the purpose of specific deterrence (to deter the individual from repeating the misconduct) or general deterrence (to warn others in the profession against such misconduct). VCAT's role is also to uphold the nursing profession's reputation.[4]
3. Where the parties present an agreed statement of facts and proposed determinations, while VCAT exercises independent judgement in reaching its decision, the Tribunal should not depart from an agreed sanction where a negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances.[5]

1. As the parties proposed, under s 196(2)(a) of the National Law we reprimand Ms Sotingco, as is clearly appropriate following this finding of professional misconduct. We note Marks J's comments in Peeke v Medical Board of Victoria[6] that a reprimand is a serious form of censure and condemnation.[7]

1. As the parties also proposed, with Ms Sotingco having been suspended from nursing practice since 30 March 2017, about 18 ½ months ago, under s 196(2)(d) of the National Law we have suspended Ms Sotingco's registration by the Board for a further six months from the date of these orders.
2. Ms Sotingco, having fundamentally breached the trust placed in her as a nurse, will have served a suspension of a little over two years. In our view that suspension provides strong general deterrence and protection of the profession's reputation.
3. In discussion with the parties, we were concerned as to whether a six-month suspension was sufficient to achieve specific and general deterrence and to maintain the reputation of the nursing profession. Ms Sotingco, working in aged care, betrayed the trust of the profession and the community placed in her to appropriately care for vulnerable people. We repeat and agree with the Magistrate's observations.

1. In that discussion we noted that a registered nurse working at a nursing home may effectively be the person in charge of the area where he or she is working at the time. It is clearly vital that a person in that position be scrupulously honest with respect to his or her own conduct and from that perspective manage the workplace.
2. That said, we accept the six-month suspension must be seen in the context that, together with the earlier suspension by the Immediate Action Committee, Ms Sotingco will have been suspended from the profession for a little over two years. As discussed above, this has had severe negative impact on her life. With the conviction recorded against her and the conditions we impose, the reality is, when the suspension ends she will struggle to convince an employer to engage her as a registered nurse.
3. Concerning specific deterrence, noting Ms Tashevska's opinion that Ms Sotingco is unlikely to re-offend, that this was her first offence, her relatively young age, that as required under the National Law she reported the charges against her to the Board, her remorse concerning her conduct and Ms Sotingco's attempts at rehabilitation, we are confident that should she overcome the other barriers she faces to re-entering the profession, she will be suitable to do so in that we accept it is most unlikely she would offend again.
4. Concerning general deterrence, any person reading these reasons will be reminded of the high ethical standards demanded of nurses in their dealings with their patients and also understand the potentially career-ending ramifications of breaching those standards. The reader will understand the calamitous effect Ms Sotingco's offending and conviction have had on her life, in the context of a now two-year suspension.
5. We regard the suspension as within the permissible range, noting that, thankfully, there appear to be very few examples of previous VCAT decisions to draw on.
6. In Nursing and Midwifery Board of Australia v Mahon (Review and Regulation) [2014) VCAT 403, Ms Mahon, a 40-year registered nurse stole a vial of morphine from her workplace in 2010 and self-administered it. In 2011 she stole between four and six OxyContin tablets from a patient's Webster Pack, replaced those tablets with non-opiate tablets of similar appearance (Crestor), repaired the Webster Pack so as to go unnoticed and self-administered those tablets. These actions related to the nurse's knee pain. The Magistrates' Court of Victoria found her guilty, did not record a conviction, imposed a two-year good behaviour bond and fined her $500. In 2014, VCAT suspended her registration for six months, noting she had not worked in the profession for the past two and half years. VCAT understood that the nurse did not intend to return to practice.
7. While each case is different, we see the six-month suspension in this case as roughly equivalent to the suspension in Mahon.

1. The conditions we have placed on Ms Sotingco's registration under s 196(2)(b) of the National Law reflect the conditions the parties proposed. After discussion with the parties at the hearing, we agree requiring the provision of a reflective writing piece, engagement in mentoring, with a subsequent second written reflection report to the Board, are appropriate.

1. Under s 196(3) of the National Law, where VCAT decides to impose a condition on the practitioner's registration, the Tribunal must also decide a review period for the condition.
2. We have set the review period as fourteen months from the date of these orders. This provides time for the further six-month suspension, six months for mentoring to take place - if Ms Sotingco succeeds in finding employment as a nurse soon after the suspension - and time for the mentor and for Ms Sotingco to provide reports to the Board following the mentoring.

[1] As set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) adopted in Victoria under the Health Practitioner Regulation National Law (Victoria) Act 2009.

[4] See Stirling v Legal Services Commissioner [2013] VSCA 374.

[5] Secretary to the Department of Planning and Community Development v Muto [2011] VCAT 328 at [16].

[6] Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at page 6.

[7] As quoted in Medical Practitioners Board of Victoria v Swieca (Occupational and Business Regulation) [2009] VCAT 419 at [52].