1 Under s 196(2)(a) of the National Law, Ms Stokes is reprimanded.

2 Under s 196(2)(b) of the National Law, Ms Stokes' registration is subject to the following conditions:

1 The Practitioner must only take substances prescribed, approved, or administered by a nominated treating practitioner(s) and such nominated treating practitioner(s) must not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner.

For the purposes of this condition 'substance' is defined as any illicit substance as well as any pharmacist only, prescription only and any controlled drug medication as contained in Schedule 3, 4 or 8 in the Standard for the Uniform Scheduling of Medications and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp.

2 Within 10 days of the notice of the imposition of these conditions, the Practitioner must commence random urine drug screening (UDS) and hair analysis for drug screening (hair analysis) in accordance with Ahpra's protocol for UDS and hair analysis (the protocol) in force at the date these conditions are imposed and then amended from time to time.

3 The Practitioner must commence UDS and hair analysis at Group Three frequency or as otherwise advised by Ahpra and must continue to attend at this frequency until the Board approves otherwise.

4 The practitioner must return a negative hair analysis test result, which must be provided to, and approved by the Board, prior to the practitioner returning to practice. The hair analysis test must be no more than 21 days old.

5 Within 5 days of the notice of the imposition of these conditions, the Practitioner must provide to Ahpra:

(a) confirmation, on the approved form (HP6), that they understand the requirements of the protocol as it pertains to urine and hair drug screening and they are aware of Ahpra's monitoring of this condition; and

(b) the details, on the approved form (HPF6), of all current substances that have been prescribed or administered to or approved for them, along with the contact information of all prescribing practitioners who have, or are likely to, prescribe, approve or administer substances.

6 The Practitioner must undertake treatment with a general practitioner, addiction medicine specialist and psychologist (the treating practitioner(s)) and attend at a frequency determined by the treating practitioner(s).

7 Within 14 days of the notice of the imposition of these conditions, the Practitioner must provide the following to Ahpra:

(a) the contact details, on the approved form (HPF3), of all treating practitioners;

(c) acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioner(s) on a quarterly basis; and

(d) confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner's registration and are aware Ahpra may contact them to seek reports.

8 Within 21 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Nursing or equivalent (the senior person) at each current place of practice.

3 Under s 196(3) of the National Law, the review period for these conditions is six months from the date of the Tribunal's original order and reasons (9 November 2021).[1]

1 When conditions are imposed on the registration of a health practitioner, it is vital that these are scrupulously complied with. This is especially so in relation to conditions for drug testing (urine, hair and breath samples). This is because the very nature of the circumstances in which they are imposed gives rise to suspicion where there is any deviation from the testing regime which has been mandated for the practitioner.

2 This case concerns a 29 year old nurse who has come well down the rehabilitative path - away from use of illicit substances and overuse of alcohol which came to light in the period 2017 to 2019 - to the point now where the regulator is satisfied that she is fit to practise, subject to conditions.

4 Ms Louisa Stokes has been a Registered Nurse (Division 1) since December 2013. Her work at the times relevant to this application was in the area of mental health. She has twice had her registration suspended by way of immediate action under the Health Practitioner Regulation National Law (National Law)[2] in order to protect the public.

5 The first suspension followed admitted use of methamphetamine and not being frank with a Nursing and Midwifery Board of Australia (Board) appointed health assessor about her illicit drug usage. That first suspension ran for five months, from 20 April 2018 - 4 October 2018.

6 Ms Stokes was then allowed to resume practice subject to conditions. These conditions required her to undertake regular blood alcohol testing (BAT), urine drug screening (UDS), hair analysis for drug screening and by specified persons.

7 She breached those conditions. The breaches occurred over a seven-month period from 28 November 2018 - 17 June 2019.

8 Although all her alcohol tests were negative over that seven-month period, and the requirement for alcohol testing was removed on 30 May 2019, she did not always comply with the requirements as to exactly when, and by whom, the BATs were to be conducted.

9 In relation to testing for illicit drugs, however, Ms Stokes did return positive urine and hair tests, variously, for cannabinoids, benzodiazepines, amphetamine and methamphetamine. Additionally, she missed one urine test, and a number of urine tests were rejected as being too dilute (although the issue of dilute urine tests is challenged by Ms Stokes - see below).

10 These breaches of conditions had two significant consequences for Ms Stokes. First, they led to her being suspended again (this time for 18 months, from 24 June 2019 - 21 December 2020). Second, they have given rise to this present disciplinary proceeding brought by the Board on 24 February 2020.

11 Things changed for Ms Stokes shortly after the second suspension was imposed. She became pregnant. An addiction medicine specialist, Dr Philip Crowley, was appointed by the Board to conduct an assessment. In a report of 5 August 2019, he concluded that she had a moderate methamphetamine use disorder and a mild cocaine use disorder. He also expressed doubts as to her level of compliance with urine testing requirements, especially given the number of dilute urine tests returned.

Ms Stokes' recent pregnancy appears to have provoked a strong desire to maintain drug and alcohol-free status. She reports achieving this for the last month. I do not believe she would benefit from engagement with drug and alcohol therapy at this time. She reports a significant change in her relationship and lifestyle status over recent months and reports no evidence of major psychological distress. She appears to have self-ceased after a change in her relationship and mental health status. Any evidence of ongoing substance use would change this recommendation and it would be suggested she then engage with an accredited drug and alcohol service or practitioner.

13 Dr Crowley recommended that as Ms Stokes was not seeking to return to nursing until sometime after the birth of her child, it would be sufficient for her to undergo three-monthly hair testing, without urine testing, especially given the difficulties with the number of dilute test results returned.

14 Ms Stokes has continued to see Dr Crowley as a private patient since then, and to undergo hair testing.

15 Following Ms Stokes' request of 25 August 2020, on 21 December 2020, the Board removed her suspension. It imposed conditions requiring urine and hair drug screening (commencing at Group 1 - 12 urine tests per month and quarterly hair analysis) and attendance with an addiction medicine specialist. While she has continued to attend for testing as required, she has not returned to work because of the need to care for her (now) two infant children. She does, however, seek to return to work in some months' time.

16 In January and March 2021, two positive tests were returned. However, the Board accepts that there is sufficient indication that there is an explanation for each of these results, consistent with Ms Stokes having not taken illicit substances. Ms Stokes maintains, and the Board accepts, that she has not taken illicit substances since June 2019.

17 On 4 March 2021, the Board reduced the frequency of drug screening from Group 1 to Group 2. Subsequently, it has been reduced to Group 3. The Board is shortly due to consider a further application for it to be reduced to Group 4 (5 - 10 urine tests per year and quarterly hair analysis).

18 Thus, things have been on a positive trajectory for Ms Stokes. The Board accepts that she is currently fit to practise. However, it is necessary to deal with her breaches of conditions which had been imposed on her during the period 28 November 2018 - 17 June 2019.

19 Following a compulsory conference on 1 December 2020, this matter was listed to be heard on 31 March 2021. However, it was adjourned at her request to enable her to investigate and, in effect, contest (successfully) the positive test result received in March 2021. A Statement of Agreed Facts and Findings (Agreed Statement, relevant parts of which are annexed to this decision) was signed by both parties on 16 June 2021.

Summary of the testing breaches which occurred between 28 November 2018 and 17 June 2019

20 Ms Stokes' 41 breaches of her testing obligations consisted of the following:

• On five occasions, her urine samples returned positive results for, variously, cannabinoids, benzodiazepines, amphetamine and methamphetamine;
• On one occasion, she failed to attend for UDS; and
• On eight occasions, she provided dilute UDS samples.

• On three occasions, her hair samples returned positive results for methamphetamine and cocaine (and on two of these occasions for benzoylecgonine as well).

• On two occasions, failing to take BATs at specified times at her workplace;
• On four occasions, undertaking BATs at her workplace, but outside the times specified;
• On 18 occasions, having BATs administered by individuals who had not been approved by the Board.

21 Ms Stokes faces a single disciplinary allegation of professional misconduct relating to these breaches. She admits that allegation. She also agrees with the Board that she should receive a reprimand, and her future registration should be subject to conditions requiring drug screening and continuing to attend a general practitioner, addiction medicine specialist and psychologist, to ensure she remains on course towards full rehabilitation.

22 The sole issue on which the parties differ is whether Ms Stokes' registration should be ordered to be suspended now. The Board submits that for the purpose of deterrence, and upholding the standards of the profession, and public confidence in those standards, her registration should be suspended for six months.

23 The Board accepts that the 18 months' suspension which Ms Stokes served by way of immediate action (under s 156) from June 2019 to December 2020 should be factored in when determining the period of suspension to be imposed by way of disciplinary action (under s 196) now. But it submits that the number, and seriousness, of the breaches is such that an overall period of suspension of two years is appropriate.

24 Ms Stokes accepts that the breaches occurred. She accepts she had taken illicit substances during the seven-month period the subject of the allegation. But she points to a number of matters which she submits make the allegations less serious than they might at first sight appear to be:

• The three positive results for hair sample tests overlap with the five positive results for urine tests - so it should be regarded in practical terms as five positive results, rather than eight.
• The missing of the urine test (on 4 February 2019) occurred in circumstances where she was flying overseas the following day for a holiday, and simply forgot to take the test.
• She worked casual shifts at varying times, day and night, and different times of the week, and it was not always possible to undertake a BAT supervised by one of the persons specifically designated, or at the designated times (30 minutes before and after her shift, and before and after a substantial break occurred during a shift).
• Sometimes her shift times changed at short notice, or her shifts finished earlier or later than the roster/employment records show, or she in fact skipped a meal break, so she could not be certain that she had in fact failed to have a BAT test within the specified time window.
• All her BAT tests (2 - 4 tests per shift during the seven-month period) were negative (that is, no alcohol detected), leading to the Board removing the requirement for BAT tests on 30 May 2019.
• From a report by a forensic toxicologist, Dr Michael Robertson, of 20 June 2019, and from her recent experiences in 2021, there is some basis on which to suspect that some of the 'dilute' UDS samples might not in fact have been dilute. Or if they were, there was an explanation for that. (In 2021, she questioned a result which was rejected by the laboratory as being too 'dilute', and it was found to be incorrect. She has since adopted the practice of taking photographs demonstrating the correlation between the concentration of the sample as shown by the litmus test and the required concentration shown on the sample bottle.)

25 More broadly, however, and regardless as to how the matters of detail referred to in the above paragraph might be considered, Ms Stokes submits that the considerations of deterrence, standards of the profession and confidence in the profession, are sufficiently dealt with by the 18-month suspension which she has already served, together with a reprimand. And that the conditions for continued drug screening (diminishing over time as drug-free results continue to be received) will sufficiently protect the public.

26 In this instance, for the reasons set out below, we accept the submission by the respondent that the 18-month period of suspension already served is sufficient to fulfil those purposes. Hence, we have ordered that Ms Stokes be reprimanded, but not further suspended, and her registration subject to drug testing conditions, and conditions requiring continuing treatment by her general practitioner, an addiction medicine specialist and psychologist, at the frequency determined by those practitioners.

27 In accordance with the parties' agreement, we find that the facts, as set out in the Agreed Statement, are proved.

28 Under s 5 of the National Law, 'unprofessional conduct' means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers. It includes a contravention by the practitioner of a condition on their registration.

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.

30 Consistently with the parties' submissions we find that Ms Stokes' breach of the conditions on her registration between November 2018 and June 2019 constitutes professional misconduct under (a) and (b) of the above definition.

31 While in relation to some of the breaches it might be accepted that there are circumstances which provide an explanation, or partial explanation, there were clearly a large number of breaches of differing degrees of seriousness.

32 Concerning alcohol, the Board is now satisfied, and we accept, that Ms Stokes no longer requires testing. The majority of the breaches which occurred related to BAT. The requirements imposed might have seemed administratively burdensome to comply with, especially given that Ms Stokes was not working regular hours. This is however part and parcel of the nature of drug testing. Conditions of this nature are inevitably inconvenient, and embarrassing. But they must be adhered to - to the letter. Otherwise, suspicion inevitably arises. That is inherent in the nature of drug testing.

33 The breaches of conditions in relation to urine and hair samples were fewer, but more serious. Most significantly, Ms Stokes tested positive for various combinations of methamphetamine, amphetamine, cocaine and benzodiazepines, benzoylecgonine and cannabinoids. This occurred by way of three hair sample and five urine tests over the period from 7 January - 17 June 2019. She also missed a urine test on 4 February 2019, on the eve of her departure for a holiday in Thailand. The nature of her use of these substances was such that Dr Crowley concluded in his report of 1 August 2019 that she had a moderate methamphetamine use disorder and a mild cocaine use disorder.

34 As the Board submitted, Ms Stokes' conduct in using illicit drugs is of concern not only as a breach of the Conditions, but also having regard to the responsibility that is entrusted to registered nurses in relation to the administration of drugs.

35 In relation to the provision of eight dilute urine samples, we take into account what Ms Stokes has said about the particular difficulties she has had in obtaining non-dilute samples.

36 In relation to the non-compliances generally, the Board drew attention to the following exacerbating factors:

• The sheer number of non-compliances - 41 occasions.
• The extended period over which they occurred - seven months.
• The fact that they continued to occur, even after the Board had drawn them to her attention. On 21 February 2019 the Board decided to caution Ms Stokes in relation to a number of breaches of her BAT conditions. Later, the issue of her non-compliance was placed on the agenda of the Board's Immediate Action Committee, albeit that on 22 March 2019 it determined against suspending her registration at that point. (The second suspension commenced on 24 June 2019.)

37 On behalf of Ms Stokes, it was conceded that the non-compliances comprise unprofessional conduct which is substantially below the standard reasonably expected of a registered health practitioner of Ms Stokes' level of training or experience.

38 We find the conduct constitutes professional misconduct within (a) the definition of that term. Additionally, given the number of occasions on which it occurred, we also find it constitutes professional misconduct within (b) of the definition.

39 The parties referred to the summary of factors relevant to the making of determinations in Medical Board of Australia v Lee [2020] VCAT 568 at [26]. The primary purposes are to protect the public, to maintain ethical and professional standards and the good reputation of the profession in the eyes of the public. Determinations are not imposed for the purpose of punishing the practitioner. However, both general and specific deterrence are to be considered. The likelihood of the conduct occurring again should be a central consideration. Related to this, the extent to which the practitioner has acquired insight is relevant to the extent of continuing risk posed by the practitioner. This includes an understanding of the nature of the conduct which was engaged in, accepting it was wrong, an appreciation of why the conduct occurred and how it will be avoided in future, empathy with the victims and a genuine preparedness to undertake steps to avoid future transgressions. Any form of official censure is of consequence. A reprimand should not be considered merely a 'slap over the wrist'.

40 Where serious breaches of professional and ethical obligations occur, orders which preclude the practitioner from practising for a specified period are appropriate for the purposes of general and specific deterrence.

41 We agree with the Board that general deterrence, and to a much lesser extent, specific deterrence, is applicable in this case. Health practitioners must accord absolute priority to complying with conditions in every detail. Practitioners need to be aware that any kind of non-compliance with conditions, whether deliberate, cavalier or through lack of attention to detail, is likely to result in a significant sanction.

42 In addition to the importance of recognising the authority of the Board, there is the protection of the public to consider here. As was submitted:

Members of the public are entitled to presume that nurses who might care for them are fit to practise. Other registered health practitioners are entitled to presume that nurses with whom they work are fit to practise. Where, as here, a registered nurse has conditions imposed on their registration to ameliorate the risk of them practising while unfit, both the public and other registered health practitioners must be able to presume that the conditions will be strictly complied with.[3]

43 The Board submitted that Ms Stokes has shown some insight into her misconduct, including by making admissions in this proceeding as to facts and findings, and by complying with conditions on her registration since it was reinstated in December 2020.

44 On Ms Stokes' behalf it was submitted that this downplayed the extent of her insight. We agree.

45 In statements made to the Board and the Tribunal, not challenged by the Board, Ms Stokes has indicated that she has not had any alcohol, nor ingested any illicit substance, since June 2019. In her statement of 15 December 2020, she indicated that she engages in gym and other exercise every day with her partner.

46 From August 2019, Ms Stokes engaged with a clinical psychologist, seeking to address the causes of her previous drug and alcohol use, and to deal with issues arising from what she described as a previous abusive and toxic relationship some years earlier, characterised by substance abuse.

47 Additionally, after the first meeting with Dr Crowley, for a health assessment for the Board in August 2019, she has continued to see Dr Crowley as a private patient. She has paid for three-monthly hair tests (costing $825 per test). In a letter of 14 October 2021, Dr Crowley said that Ms Stokes had been seeing him three-monthly over the past two years. He said she has had ongoing urine and hair drug testing throughout this time, and that she has remained free of any substance use. He expressed the view that she has no ongoing substance use disorder and noted that she has two infant children in her care and has a stable social and family support network.

48 In our view, the most important non-compliances were those which related to her use of illicit substances up to June 2019. That reflected Dr Crowley's diagnosis of a moderate methamphetamine use disorder and a mild cocaine use disorder at that time. Additionally, the large number of non-compliances relating to matters such as BATs and dilute urine tests, together with her failure to attend for urine testing on one occasion, even if falling short of wilful non-compliance, indicate that she did not give enough priority to the necessity for absolute compliance with conditions imposed.

49 In relation to these matters, it is significant that Ms Stokes now appears to be progressing well on the path towards full rehabilitation. The positive test results in 2019 of course have a health aspect to them. Her progress is assisted by her change in social and domestic circumstances (now being the mother of two infant children) and what appears to be strong support she is now receiving in pursuing that goal. Concerning the positive test results, and the other non-compliances, the price she has already paid, of being suspended for 18 months, is a significant one.

50 In addition, Ms Stokes has incurred substantial costs in drug testing. During the first 10 months of 2021, the hair and urine tests she has undertaken have cost almost $10,000.

51 We have decided that the purposes of deterrence and protection of the reputation of the profession have been sufficiently served here by the 18-month suspension which Ms Stokes has already undergone.

52 Various prior decisions were referred to us as comparators.[4] We are of course conscious that every case is different, and care needs to be taken when having regard to determinations imposed in other cases. Nevertheless, it is desirable to avoid inconsistency.

53 We note that in a number of those cases there was an element of dishonesty by the practitioner. That is not the case here.[5] We are fortified in our conclusion as to determination by our review of the cases referred to us by the parties.

54 Ms Stokes will receive a reprimand. At 29, she is a relatively young practitioner, and this formal statement on her record, together with the publication of these reasons, serves as a public denunciation of her conduct.

55 The conditions agreed by the parties are also imposed. These will facilitate her return to work in such a way that she is able to embrace her full professional responsibilities as a Registered Nurse (Division 1), and hence to fulfil the potential she has to serve the community in her chosen profession. Ms Stokes is obviously now very well aware of the need to comply scrupulously with these conditions.

RELEVANT PARTS OF THE STATEMENT OF AGREED FACTS AND FINDINGS

• 1.1 Part A sets out the statement of agreed facts as agreed between the parties.
• 1.2 Part B sets out the statement of agreed findings pursuant to s 196 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic) (National Law) as agreed between the parties.
• 1.3 Part C sets out the determinations sought by each party. These are not agreed between the parties.

2 Ms Louisa Stokes was first registered with the Nursing and Midwifery Board of Australia (Board) as a Registered Nurse (Division 1) on 24 December 2013 (registration number NMW0001864211).

3 At all material times, Ms Stokes held registration as a registered nurse (Division 1).

4 At all material times, Ms Stokes worked as a registered nurse and was employed by The Melbourne Clinic (Clinic).

5 At all relevant times, Ms Stokes was obliged to comply with the applicable Code of Conduct for registered nurses as published by the Board from time to time, namely, the Code of Conduct for Nurses (Code).

6 The obligations imposed on Ms Stokes by the Code relevantly included:

• 6.1 Adhere to professional obligations under the national law and abide by relevant Laws (Principle 1.1); and
• 6.2 Maintain physical and mental health to practice safely and effectively as a registered nurse (Principle 7.1).

7 On 28 August 2017, Ahpra received a notification (00362389) on behalf of the Board from the Director of Nursing at The Melbourne Clinic, which alleged that Ms Stokes attended a shift at The Melbourne Clinic on 22 August 2017 intoxicated by alcohol.

8 The Night Duty Coordinator at the Melbourne Clinic received a telephone call from the nurse in charge, who expressed concerns that she could smell alcohol on Ms Stokes. Ms Stokes agreed to undergo a breath test and returned a breathalyser reading of 0.06% BAC. The incident was formally discussed with Ms Stokes at a meeting on 24 August 2017 with the Nurse Unit Manager and the Director of Nursing of Melbourne Health. At the meeting, Ms Stokes admitted to being intoxicated when she arrived at work and to experiencing some personal difficulties. As a result, Ms Stokes was issued a first and final warning from Melbourne Health and all of Ms Stokes' shifts were cancelled until a fit to return to work report was completed.

9 On 31 August 2017, the Board proposed to caution Ms Stokes and impose breathalyser conditions on her registration.

10 In June 2017, Ms Stokes had a consultation with her general practitioner, Dr Karina Stolyarsky, to whom Ms Stokes admitted having a past history of methamphetamine use. However, she denied that she continued to use any drugs.

11 On or around 7 September 2017, Ms Stokes attended the practise of Dr Kylie Brownfield, Ms Stokes' treating psychologist. During the session, Ms Stokes reported to Dr Brownfield that she had a history of methamphetamine use.

12 On 19 September 2017, Ahpra received a second notification (00364085) on behalf of the Board made by Dr Kylie Brownfield in relation to Ms Stokes' admissions of crystal methamphetamine use.

13 On 21 September 2017, the Board considered the second notification and required Ms Stokes to undergo a health assessment, including urine and hair screening and blood testing for alcohol and substance use, under s 169 of the National Law (Health Assessment).

14 On 2 March 2018, as part of Ahpra's monitoring of Ms Stokes, she visited her GP, Dr Karina Stolyarsky. On 19 March 2018, Dr Stolyarsky reported that Ms Stokes claimed not to have taken illicit substances since 1 December 2017.

15 On 10 March 2018, Ms Stokes undertook a drug and alcohol urine test as part of the Health Assessment. The urine test detected ephedrine/pseudoephedrine, paracetamol and benzodiazepines.

16 On 19 March 2018, Ms Stokes attended a Health Assessment with Dr Matthew Frei. Ms Stokes returned a reading of 0.017% BAC when breath tested at the start of the health assessment and said that she had had a glass of wine beforehand to "manage anxiety symptoms." Ms Stokes said that she had not used methamphetamine in the past 18 months but reported some non-prescribed use of benzodiazepines and cannabis.

17 Dr Frei provided an interim report dated 27 March 2018 in which he concluded that there was no evidence of alcohol dependence, but Ms Stokes did have a history of impulsive or ill-judged alcohol consumption, which was consistent with some degree of alcohol use disorder. The interim report stated that there were no signs of methamphetamine use at the assessment, however Dr Frei did not have access to Ms Stokes' hair test results at the time of writing the interim report.

18 On 28 March, Dr Brownfield reported that, following a traumatic event in December 2017, Ms Stokes had coped by using substances for an extended period of time. At Ms Stokes' last session on 6 March 2018, she had claimed sobriety, however, Dr Brownfield reported that Ms Stokes had not always been truthful with her substance use in the past.

19 On 4 April 2018, Dr Brownfield provided additional information via email regarding Ms Stokes' methamphetamine use, specifically:

• 19.1 During a consultation on 10 January 2018, Ms Stokes reported that she had not used methamphetamine for 9 days. Ms Stokes disclosed that following a traumatic event in late December 2017, she used methamphetamine for 6 days.
• 19.2 During the consultation on 6 March 2018, Ms Stokes reported that she was not presently using methamphetamine.

20 On 16 April 2018, the Board formed a reasonable belief that because of her health, Ms Stokes posed a serious risk to persons and proposed to take immediate action under section 156(1) of the National Law by suspending Ms Stokes. The Board invited Ms Stokes to make a written submission to the Board by 12:00 pm on 18 April 2018. On 18 April 2018, Ms Stokes provided written submissions to the Board in which she admitted to using methamphetamine in December 2017 and to last using methamphetamines on or about 21 March 2018.

21 On 19 April 2018, Ms Stokes and her legal representative attended the meeting of the Board and made verbal submissions in which she admitted to methamphetamine use and to not being frank with the Board appointed health assessor.

22 The Board, noting the variance in Ms Stokes' disclosures to her GP, her psychologist, and the Board appointed health assessor, in relation to the extent of her substance use, formed a reasonable belief that Ms Stokes posed a serious risk to persons and decided that it was necessary to suspend Ms Stokes' registration under s 156(1) of the National Law (First Immediate Action).

23 Dr Frei provided a second report dated 15 May 2018 following the receipt of further information, including hair test results from a specimen collected on 6 April 2018 and Ms Stokes' submissions dated 18 April 2018. The updated report did not alter the findings of Dr Frei's interim report.

24 On 4 October 2018, the Board decided to end the First Immediate Action, revoked the suspension of Ms Stokes' registration and imposed the following conditions on Ms Stokes' registration under section 178(2)(c) of the National Law:

Undertake breath alcohol testing and urine and hair drug screening

1. The Practitioner must undertake breath alcohol testing (breath testing) in accordance with Ahpra's protocol for Drug and Alcohol Screening (the protocol) in force at the date these conditions are imposed and then as amended from time to time. Breath testing is to occur as follows:

1. No more than 30 minutes prior to the commencement of each and every period of practice, and
2. No more than 30 minutes after the completion of each and every period of practice, and
3. At any time within the practice period as directed by the case officer or breath test supervisor.

For the purposes of this condition, 'practice' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a nurse in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a nurse in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the profession.

For the purposes of this condition a 'period of practice' commences when the Practitioner begins to conduct any of the activities as defined in the meaning of practice and ceases with any break from carrying out these activities of 30 minutes or longer, regardless of whether the Practitioner is being remunerated for the break or not. There may be several practice periods within any working day.

2. Where the result of breath testing undertaken is greater than 0.01% blood alcohol concentration the Practitioner must:

1. not commence any practice and/or
2. immediately cease practice and must not return to practice that day, and
3. notify Ahpra immediately via email of such a result.

3. The Practitioner must only take substances prescribed, approved, or administered by a nominated treating practitioner(s) and such nominated treating practitioner(s) may not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner.

For the purposes of this condition 'substance' is defined as any illicit substance as well as any pharmacist only, prescription only and any controlled drug medication as contained in Schedule 3, 4 or 8 in the Standard for the Uniform Scheduling of Medications and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons­ standard-susmp.

4. Within 21 days of the notice of the imposition of these conditions, the Practitioner must commence random urine drug screening (UDS) and hair analysis for drug screening (hair analysis) in accordance with Ahpra's protocol for UDS and hair analysis (the protocol) in force at the date these conditions are imposed and then amended from time to time.

5. The Practitioner must commence UDS and hair analysis at Group One frequency or as otherwise advised by Ahpra and must continue to attend at this frequency until the Board approves otherwise.

6. The Practitioner must, on the approved form (HPN5), nominate a person(s) to be approved to administer breath testing {the breath test supervisor). The Practitioner must ensure that the nomination is accompanied by written confirmation, on the approved form (HPNA5), from each nominated breath test supervisor.

7. Within 21 days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra:

1. Acknowledgement, on the approved form (HP22), that they understand the requirements of the protocol as pertains to urine drug screening, hair drug screening and breath alcohol analysis and that they are aware of Ahpra's monitoring of compliance with this condition.
2. Confirmation, on the approved form (HPS22), from the Director of Nursing or equivalent (the senior person) at each place of practice, that they are aware Ahpra may contact them for the purposes of monitoring the Practitioner's compliance with this condition.
3. The details, on the approved form (HPF22), of all current substances that have been prescribed or administered to or approved for them, along with the contact information of all treating practitioners who have, or are likely to prescribe, approve, or administer substances.

8. The Practitioner must undertake treatment with a general practitioner (GP) and an addiction medicine specialist or a psychiatrist (the treating practitioners), as directed by her referring GP, and attend at a frequency determined by the treating practitioners.

9. Within 21 days of the notice of the imposition of these conditions, the Practitioner must provide the following to Ahpra:

1. The contact details, on the approved form (HPF3), of all treating practitioners.
2. Acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioners on a 3-monthly basis.
3. Confirmation, on the approved form (HPNA3), from the treating practitioners that they have seen a copy of the conditions on the Practitioner's registration and are aware Ahpra may contact them to seek reports.

10. Within 21 days' notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Nursing or equivalent {the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that:

1. Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and
2. The Practitioner will be required to provide the same form:
   1. within seven days of the commencement of practice at each and every subsequent place of practice, and
   2. within seven days of each and every notice of any subsequent alteration of these conditions.

11. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

25 On 2 November 2018, a senior compliance officer at Ahpra provided Ms Stokes with a list of ten approved breath testing supervisors. The list stated that persons not on the list should not supervise any breath tests.

26 In accordance with Condition 1, Ms Stokes commenced breath testing on 8 November 2018 whilst she was working at The Melbourne Clinic.

27 Ms Stokes failed to undertake breath testing in accordance with Ahpra's Drug and Alcohol Screening Protocol (Protocol) and in breach of Condition 1, on the following occasions:

• 27.1 On 3 December 2018, she failed to undertake breath testing after the completion of her shift.
• 27.2 On 10 December 2018, she failed to undertake breath testing no more than 30 minutes before the commencement of her shift (instead, she undertook breath testing 1 hour after the commencement of her shift).
• 27.3 On 19 December 2018, she failed to undertake breath testing no more than 30 minutes before the commencement of her shift (instead, she undertook breath testing 1 hour after the commencement of her shift)
• 27.4 On 23 January 2019, she failed to undertake breath testing after the completion of her shift.
• 27.5 On 23 March 2019, she failed to undertake breath testing no more than 30 minutes prior to the commencement of her shift (instead, she undertook breath testing 25 minutes after the commencement of the shift).
• 27.6 On 9 May 2019, she failed to undertake breath testing no more than 30 minutes after the completion of her shift (instead, she undertook breath testing 24 minutes before the conclusion of her shift).

28 Ms Stokes undertook breath testing that was supervised by individuals who had not been approved by her case officer, in breach of Condition 1, on:

• 28.1 On 3 December 2018, following the conclusion of a break.
• 28.2 On 5 December 2018, following the conclusion of a break.
• 28.3 On 10 December 2018, before commencing a period of practice.
• 28.4 On 11 December 2018, before commencing a period of practice.
• 28.5 On 14 December 2018, before commencing a period of practice, following the conclusion of a break, and after finishing a period of practice.
• 28.6 On 18 December 2018, before commencing a period of practice, following the conclusion of a break, and after finishing a period of practice.
• 28.7 On 19 December 2018, before commencing a period of practice, and after finishing a period of practice.
• 28.8 On 27 December 2018, before commencing a period of practice.
• 28.9 On 4 January 2019, before commencing a period of practice, following the conclusion of a break, and after finishing a period of practice.
• 28.10 Between 13 January 2019 and 14 January 2019, before commencing a period of practice, and after finishing period of practice.
• 28.11 On 16 January 2019, before commencing a period of practice.
• 28.12 On 17 January 2019, before commencing a period of practice, and following the conclusion of a break.
• 28.13 On 22 January 2019, before commencing a period of practice.
• 28.14 On 23 January 2019, following the conclusion of a break.
• 28.15 On 31 January 2019, after finishing a period of practice.
• 28.16 On 4 March 2019, before commencing a period of practice.
• 28.17 On 15 March 2019, before commencing a period of practice.
• 28.18 On 20 March 2019, after finishing a period of practice.

29 Ms Stokes returned the following positive test results in breach of Condition 3:

• 29.1 On 7 January 2019, she provided a hair sample that returned a positive result for methamphetamine, cocaine, and benzoylecgonine for the period in or about mid-September 2018 to mid-December 2018;
• 29.2 On or about 22 January 2019, when she provided a urine sample that returned a positive result for cannabinoids;
• 29.3 On or about 5 March 2019, when she provided a urine sample that returned a positive result for benzodiazepines;
• 29.4 On or about 6 March 2019, when she provided a urine sample that returned a positive result for benzodiazepines;
• 29.5 In or about mid-late December 2018 to mid-to-late March 2019, in that she provided a hair sample that returned a positive result for methamphetamine and cocaine for this period on 12 April 2019;
• 29.6 On or about 4 June 2019, when she provided a urine sample that returned a positive result for amphetamine and methamphetamine;
• 29.7 On or about 17 June 2019, when she provided a urine sample that returned a positive result for amphetamine and methamphetamine; and
• 29.8 In or about March 2019 to late June 2019, in that she provided a hair sample that returned a positive result for methamphetamine, cocaine and benzoylecgonine for this period on 16 July 2019.

30 On 4 February 2019, Ms Stokes failed to attend for UDS without notifying the compliance case officer on the day or providing a medical certificate, contrary to the Protocol and in breach of Condition 4.

31 Ms Stokes provided a dilute UDS sample, in breach of Condition 4, on:

• 31.1. 28 November 2018, with a creatinine level of 1.1 mmoL;
• 31.2. 29 November 2018, with a creatinine level of 1.7 mmoL;
• 31.3. 17 December 2018, with a creatinine level of 1.7 mmoL;
• 31.4. 28 December 2018, with a creatinine level of 1.3 mmoL;
• 31.5. 4 January 2019, with a creatinine level of 0.8 mmoL;
• 31.6. 13 May 2019, with a creatinine level of 1.6 mmoL;
• 31.7. 28 May 2019, with a creatinine level of 0.9 mmoL; and
• 31.8. 12 June 2019, with a creatinine level of 1.4 mmoL.

32 The minimum concentration of creatinine required for a valid sample was 1.76 mmol/L.

Second immediate action decision and health assessment

33 On 22 March 2019, the Board proposed to take immediate action under s 156 of the National Law by suspending Ms Stokes' registration. On 28 March 2019, the Board decided not to take any immediate action.

34 On 30 May 2019, the Board decided to remove the Conditions on Ms Stokes' registration that required her to undergo BAT. The Board noted that while there had been issues with compliance, Ms Stokes had not returned any positive readings.

35 On 24 June 2019, the Board formed a reasonable belief that, because Ms Stokes had engaged in substance misuse and had failed to comply with conditions on her registration, including by providing positive and dilute samples, she posed a serious risk to persons. Accordingly, the Board decided to take immediate action under s 156 of the National Law and suspended Ms Stokes' registration.

36 Further, the Board decided to require Ms Stokes to undergo a second health assessment with an addiction specialist under s 169 of the National Law.

37 On 1 August 2019, Ms Stokes underwent a health assessment with Dr Philip Crowley, addiction medicine specialist. Dr Crowley provided a report dated 5 August 2019 in which he advised that Ms Stokes:

• 37.1 denied any regular or problematic alcohol use;
• 37.2 reported that the dilute urine drug tests were a result of her consuming a large quantity of water to avoid recurrent urinary tract infections;
• 37.3 admitted taking a pill she believed was ecstasy and one occasion of cannabis use.

38 Dr Crowley's report concluded that Ms Stokes has a moderate methamphetamine use disorder and a mild cocaine use disorder, but does not have an alcohol use disorder. He expressed concern at the number of UDS samples that were either not completed or reported as dilute. He noted that the scientific literature concludes that urine with levels of creatinine less than 5.0mg/dL and specific gravity less than 1.001 "represent a specimen condition that is not consistent with normal human urine" and recommended hair and urine drug screening continue.

39 Dr Crowley also commented that 'I am concerned that such a number of urine drug tests requested between November 2018 and June 2019 were not completed or reported as dilute...This recent record of testing does not support confidence that she has been compliant with urine testing'.

40 Dr Crowley said in his report: 'Ms Stokes recent pregnancy appears to have provoked a strong desire to maintain drug and alcohol-free status. She reports achieving this for the last month. I do not believe that she would benefit from engagement with drug and alcohol therapy at this time. She reports significant change in her relationship and lifestyle status over recent months and reports no evidence of major psychological distress. She appears to have self-ceased after a change in her relationship and mental health status. Any evidence of ongoing substance use would change this recommendation and it would be suggested she then engage with an accredited drug and alcohol service or practitioner''.

41 Dr Crowley also commented: 'Given that she is not seeking return to nursing registration for the next year during the time of her pregnancy it would be appropriate for her to be monitored with hair drug testing only. Urine drug testing has proven highly problematic. Urine testing is generally less accurate in that it does not provide specific concentrations and is subject to greater personal variation due to fluid use and timing. It does have the advantage of being timelier than hair drug testing. As she is not planning to re-enter nursing practice for the next year this aspect is not as important for monitoring her risk of drug use in the nursing work place. I would suggest continuing three monthly hair drug testing for twelve months without urine testing to monitor potential risk of drug use. If these hair tests are all negative then she could then enter low frequency urine and hair drug testing as per AHPRA protocols after a year and return to the workplace'.

42 In a report submitted on behalf of Ms Stokes from Dr Michael Robertson[6], pharmacologist and forensic toxicologist dated 20 June 2019, he said:

• 42.1 Creatinine is a muscle by-product that is produced by the body at reasonably constant rates throughout the day and night. Creatinine once in the blood is filtered by the kidneys and excreted in the urine. The concentration of creatinine in the urine may be used as a marker for the level of dilution of the urine. Low levels of creatinine suggest more dilute urine relative to higher levels.
• 42.2 'Normal' creatinine levels are generally expected to be between 3 mmol/L in dilute urine and 20 mmol/L in more concentrated urine. Whilst different laboratories may assign slightly different reference ranges to expected creatinine levels, the majority generally regard any value less that 1.8 mmol/L as 'dilute' and will often recommend re-testing given this level of dilution will also significantly dilute any drug present to the point that it may be undetectable when otherwise it would have been detectable.
• 42.3 Levels of creatinine in the urine may vary from individual to individual due primarily to variations in muscle mass, diet (particularly the amount of creatine and creatinine in meat ingested) and may also vary within the same individual over the course of a day, primarily due to variations in hydration with as little as 0.5 litres of ingested water significantly reducing creatinine levels in spot urine sample. In general women have a lower creatinine level than men, typically due to a lower muscle mass. Of possible relevance, creatinine levels also fall in the middle of the menstrual cycle.
• 42.4 Ms Stokes is described as slim (173 cm and 56 kg) and an individual who eats chicken regularly and red meat once a week. A [sic] such she is likely to have naturally lower levels of creatinine than someone who ingests red meat regularly, is male and/or has greater muscle mass.
• 42.5 Whilst the natural levels of creatinine in Ms Stokes cannot be predicted with any certainty, given the described characteristics of gender, size, weight and a diet low in red meat it is likely that her creatinine levels would be at the lower end of the generally accepted range. When this is combined together with an amount of hydration throughout the day, it is reasonable that her spot urine creatinine concentrations could be at levels of 1.8 mmol/L or less.

Practitioner history after referral to the Tribunal

43 On 25 August 2020, Ms Stokes made an application to revoke the suspension imposed on her registration by the Board under s 156 of the National Law on 24 June 2019.

44 On 9 December 2020, the Board considered Ms Stokes' request and proposed to take an alternative form of immediate action under section 156 of the National Law, namely to impose conditions on her registration.

45 On 21 December 2020 the Board considered Ms Stokes' application under s 156 and decided to:

• 45.1 end the suspension of Ms Stokes' registration; and
• 45.2 impose conditions on Ms Stokes' registration by requiring urine and hair drug screening (Commencing at Group 1) and attendance with an addition medicine specialist.

46 On 11 January 2021, Ms Stokes commenced Group 1 testing.

47 Between 11 January 2021 and 17 March 2021, Ms Stokes attended for UDS on 25 occasions in accordance with Group 1 testing.

48 On 11 January 2021, Ms Stokes provided a hair sample that returned a positive result for cocaine (90 pg/mg). Relevantly:

• 48.1 UDS test results for the period of 11 January 2021 to 5 February 2021 identified no presence of cocaine;
• 48.2 Dr Crowley provided a report dated 4 February 2021, in which he opined 'Ms Stokes reported assisting a friend who had a previous cocaine use history move house during this period and this may have been the source. She has no history of relapse to substance use'; and
• 48.3 after further investigations, the Board was unable to form a reasonable belief that the positive test result was a consequence of Ms Stokes having ingested cocaine since the imposition of the conditions on 21 December 2020.

49 On 3 February 2021, Ms Stokes attended for UDS. The pathology results returned a dilute sample.

50 In response to the 3 February 2021 results, Ms Stokes submitted, in summary:

• 50.1 she has undertaken the required Group 1 testing with a committed and diligent approach. It is often challenging as she is juggling testing around her 11 month old son's sleeping patterns;
• 50.2 she has been extremely conscious not to over hydrate since commencing testing on 11 January 2021. On the date in question, she went straight from the gym following a spin class to do the required test as her son had fallen asleep in the car. Her fiancé's mother met her there to help with her son;
• 50.3 the sample provided may be the result of the water intake at the gym class; and
• 50.4 she continues to be alcohol and substance free.

51 On 8 February 2021, Ms Stokes made an application to the Board to reduce the frequency of her urine drug screening from Group 1 to Group 2.

52 On 4 March 2021, the Board granted Ms Stokes' request to reduce the frequency of her drug screening from Group 1 to Group 2. Relevantly the Board:

• 52.1 accepted Ms Stokes' explanation for the cause of the dilute sample of 3 February 2021, noting that this was an isolated incidence since the imposition of the conditions on 21 December 2020; and
• 52.2 in relation to the positive hair sample on 11 January 2021, was unable to form the reasonable belief that Ms Stokes contravened the conditions by ingesting cocaine since the imposition of the conditions.

53 On 10 March 2021, Ms Stokes attended for UDS. The pathology results returned a positive test for opiates. Confirmatory testing of this sample identified the presence of Morphine and Codeine. Neither of these substances were declared by Ms Stokes or her nominated treating practitioner.

54 In response to the positive UDS sample on 10 March 2021, Ms Stokes provided a statement to the Board in which she submitted that she had eaten Hamentashen, a traditional Jewish food item, which unbeknown to her at the time, contained poppy seeds.

55 On 17 March 2021, Ms Stokes attended for UDS. The results returned a dilute sample.

56 On 1 April 2021, Ms Stokes attended for a Hair Analysis Test. The pathology results confirmed that no drugs were detected.

57 On 3 June 2021, in light of the negative Hair Analysis Test of 1 April 2021, the Board decided to take no action in relation to the positive UDS sample of 10 March 2021 or the dilute UDS sample of 17 March 2021.

58 The parties jointly invite the Tribunal to make the following findings pursuant to s 196(1)(b) of the National Law:

• 58.1 A finding that between in or about mid-September 2018 and 16 July 2019, Ms Stokes behaved in a way that constitutes professional misconduct within the meaning of paragraphs (a) and/or (b) of the definition of professional misconduct in s 5 of the National Law in that she breached conditions imposed on her registration by failing to undertake urine drug screening and alcohol breath testing in accordance with the conditions and by testing positive for non-approved or prescribed substances in breach of the Code.

[1] On 16 December 2021, the Tribunal's original order was corrected under s 119 of the Victorian Civil and Administrative Tribunal Act 1998 to insert a review period of six months.

[2] The National Law is applicable in Victoria is set out as a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[4] The most relevant of which are Medical Board of Australia v DRP [2016] VCAT 2076; Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99; Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169; and Medical Board of Australia v Konidaris [2019] SACAT 52.

[5] We do note that in the Agreed Statement there are references to Ms Stokes having falsely claimed to her GP to be drug-free in early 2018, and to not being frank with the Board's health assessor. However, to the extent those matters comprise dishonesty, they are part of the background which gave rise to the imposition of the conditions. That is, the breaches alleged against her in this case do not involve dishonesty.

[6] For the avoidance of doubt, Dr Robertson is not a registered medical practitioner.