1. The decision of the Respondent dated 9 December 2016 to impose a condition on the Applicant's registration that she undergo urine drug screening and hair screening at Group 1 frequency is substituted for a condition that the Applicant undergo urine drug screening and hair screening at Group 2 frequency.
2. The review period is set at 3 months.

1. Ms Seymour is an enrolled nurse. She was first registered in 2011.
2. She has worked with the same employer since 2011.
3. She has an excellent employment record. She is passionate about nursing.
4. Nevertheless, in March 2016, the attention of the Australian Health Practitioner Regulation Authority, (AHPRA), was drawn to Ms Seymour. An anonymous notifier alleged illicit drug use by Ms Seymour[1].
5. Ms Seymour accordingly underwent urine and hair drug analysis tests on 19 May 2016. Her hair was found to contain methamphetamine, amphetamine and zolpidem. The sample of urine was too dilute for analysis.
6. On 3 June 2016, the Nursing and Midwifery Board of Australia, ("the Board"), took immediate action under section 156 of the Health Practitioner Regulation National Law (Victoria) Act 2009, ("the National Law"), against Ms Seymour in relation to the positive drug test result and low creatinine levels.
7. She underwent a period of suspension, was required to be under supervision when she returned to practise and was required to be urine tested and hair tested on a Group 1 frequency (providing urine samples approximately 12 times per month and submitting to hair analysis on a quarterly basis).
8. On 8 July 2016, following the provision of two diluted urine samples on 21 and 27 June 2016, the Board again took immediate action. Ms Seymour underwent a further period of suspension, and was required to be urine tested and hair tested on a Group 1 frequency.
9. On 1 September 2016, the Board formed the belief that Ms Seymour may have an impairment that could detrimentally affect her capacity to practise.
10. However, taking into account the fact that her urine samples between 3 June 2016 and 18 August 2016 had all been negative and her hair test on 26 July 2016, had also been negative for any substances, the Board imposed less restrictive (Group 2) screening conditions on her registration. Group 2 screening necessitated the provision of 4 urine screens per month and submitting to hair analysis on a quarterly basis.
11. Other conditions remained; requiring that Ms Seymour only take substances prescribed, approved or administered by a nominated treating practitioner and be supervised while practising (indirect supervision).
12. The review period was set at 6 months.
13. On 16 November 2016, Ms Seymour underwent a urine drug screen.
14. On 22 November 2016, AHPRA received a pathology report from QML Pathology in relation to the urine drug screen. It was positive for cocaine metabolites (benzoylecgonine 462 ug/L; ecgonine Methyl Ester 366 ug/L and creatinine 14.8 mmol/L the cutoff level under AS/NZS 4308:2008 section 5 is 150 ug/L for both benzoylecgonine and ecgonine Methyl Ester).
15. On 28 November 2016, AHPRA received a confirmatory test report dated 25 November 2016 which stated "LCMS confirms the positive cocaine screen and reveals a pattern of recent use of cocaine."
16. On 9 December 2016, the Board formed the belief that Ms Seymour's professional conduct was or may be unsatisfactory.
17. The Board made a decision under section 178 of the Health Practitioner Regulation National Law (Victoria) Act 2009, (the National Law) to:
    1. caution Ms Seymour that in future she meticulously comply with any conditions placed on her registration. (This decision is not an appellable decision and was not the subject of discussion during these proceedings); and
    2. imposed conditions on Ms Seymour's registration requiring her to undergo urine drug screening and hair analysis at Group 1 frequency. The conditions were to be reviewed in 3 months from the date of imposition.

1. On 29 December 2016, Ms Seymour lodged an application under section 199 of the National Law with this Tribunal, for review of the 9 December 2016 decision to impose the drug screening and hair analysis conditions on her registration.
2. On 13 January 2017, a partial stay of the conditions was granted under section 50 of the Victorian Civil and Administrative Tribunal Act 1998. Ms Seymour was required to continue urine testing, but at Group 2 frequency until further order of the Tribunal.
3. Hair screening remained at Group 1 frequency, which included a further screen on or around 10 February 2017. The further hair screen taken on 10 February 2017, detected 142 pg/mg of cocaine in the hair.
4. The matter proceeded before us on 1 March 2017.
5. The Board called evidence from Dr Julia Chang, who was the chemical pathologist from QML Pathology, who conducted the confirmatory test upon the urine sample. She also conducted the February 2017 hair analysis.
6. Ms Seymour gave evidence and called two character witnesses, Ms Natasha Christoforou, a nursing colleague, and Ms Ruth Anne McCullum, who is the Surgical Services Manager at the John Faulkner Private Hospital.
7. Ms Seymour's mother was present with her throughout the hearing in support.
8. We also read supportive references from:
   • Mr Mark Seymour, who is Ms Seymour's father.
   • Ms Deb Dwyer, who is the Director of Nursing at John Faulkner Private Hospital.
   • Ms Caroline Dobson, who is an Associate Nurse Unit Manager at John Faulkner Private Hospital.
   • Mr Glenn Taylor, who is the Chief Executive Officer of the Nursing and Midwifery Health Program, Victoria; and
   • Dr Humphrey Gomes, who is Ms Seymour's general practitioner.
9. The parties provided written closing submissions on 31 March 2017. The closing submissions addressed both factual findings and proposed determinations. We considered this a sensible approach, given the limited scope of the matter.
10. Accordingly, we now deliver both our factual findings and determination in the one decision.

1. Section 178(1) of the National Law allows the Board to take action if it reasonably believes that the way a registered health practitioner practises the health profession, or the practitioner's professional conduct is or may be unsatisfactory.
2. Section 178(2)(c)(iii) of the National Law authorises the Board to impose conditions on a practitioner's registration, including, (relevantly), a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practise.
3. Section 178(3) of the National Law requires the Board to decide a review period for any condition it imposes.
4. Section 3(3)(c) of the National Law specifies that a restriction on the practise of a health profession is only to be implied if necessary to ensure health services are provided safely and are of an appropriate quality.
5. Section 202(1) of the National Law empowers this Tribunal to either affirm, amend or substitute another decision for the Board's decision.
6. Accordingly, in this case, we need to make an assessment as to:

1. whether the alleged conduct occurred; 2. if we find that the conduct did occur, whether the conduct leads us to form the reasonable belief that the way in which Ms Seymour practises nursing is or may be unsatisfactory;

1. if we find that the way in which Ms Seymour practises nursing is or may be unsatisfactory; whether it is necessary to impose conditions on her practise to ensure health services are provided safely and are of an appropriate quality; and

1. if we decide to impose conditions on Ms Seymour's practise, what those conditions should be and the review period which should attach to them.

1. After Ms Seymour returned the positive urine result in November 2016, the Board invited Ms Seymour to provide an explanation.
2. Ms Seymour's lawyers wrote to the Board and stated that on Saturday 12 November 2016 and Tuesday 15 November 2016, Ms Seymour had intimate physical contact with a male. It was said that she did not know that the male used drugs and she had not seen him using drugs during the time they spent together. When Ms Seymour returned the positive urine result, she informed the man of her test results and he told her that he had used cocaine on 12 and 15 November. He denied giving her cocaine without her knowledge.

1. Dr Chang conducted the confirmatory test upon the urine sample and analysed the sample of Ms Seymour's hair provided on 13 February 2017.
2. Dr Chang gave, (un-contradicted), evidence that the chain of custody was intact.
3. Dr Chang has 15 years' experience as a chemical pathologist. Pharmacokinetics is her area of expertise.

1. Dr Chang gave evidence that she conducted the confirmatory test upon the urine sample using the technique of liquid chromatography-mass spectrometry, which she described as the 'gold standard' in testing. The test found the presence of two cocaine metabolites. She opined the results were indicative of cocaine use within 2 to 3 days prior to the test. Both metabolites were found in concentrations above the cut-off levels for reporting under the applicable Australian/ New Zealand standard[2]. Further confirmatory testing lead to the positive result.
2. Dr Chang gave evidence that it may be possible for cross contamination to occur during the exchange of bodily fluids producing a positive urine drug screening result. She nevertheless considered it improbable.
3. Dr Chang gave evidence that cocaine metabolites can be found in semen. She considered that there are many variables as to whether semen could contaminate urine sample such as whether the man was a heavy or chronic cocaine user, the time of intercourse and whether the female urinated or washed prior to providing the urine sample. Although she conceded that it was theoretically possible for direct contamination by semen, she did not consider that the vagina could retain sufficient semen, especially after some hours, to produce such a result. She noted that semen begins to liquefy or become watery one hour after ejaculation.
4. Dr Chang considered that it was unlikely that sexual intercourse and resultant fluids would contaminate urine such that cocaine metabolites could be detected.
5. Dr Chang gave evidence that it would be surprising to see the levels of cocaine metabolites found in Ms Seymour's urine as a result of semen. She considered that any semen would be very diluted within the urine. The average volume of ejaculate is about 3 mL and, even if half the amount of semen remained within Ms Seymour at the time of giving the sample it would be unlikely, in Dr Chang's opinion, to produce the levels of metabolites found in the confirmatory test.
6. Dr Chang thought it improbable that absorption of a cocaine user's seminal fluid would account for the level of cocaine metabolites found in Ms Seymour's urine. She felt it would require half a litre of semen to get a similar result.
7. Dr Chang also considered it improbable that the absorption of the sweat of a cocaine user would lead to the levels of metabolites found in the confirmatory test. Once again she felt approximately half a litre of such fluid would be required.
8. She considered it impossible for urine to be contaminated by saliva.
9. Dr Chang also undertook a literature review which confirmed her opinion that absorption of semen would not result in the positive metabolite reading for cocaine metabolites.
10. A colleague, with whom she consulted, formed the same opinion.
11. Dr Chang also gave evidence that if there had been contamination that she would have expected to detect semen within the urine sample. She did not.

1. Dr Chang also analysed a sample of Ms Seymour's hair provided on 13 February 2017, covering the period late October 2016 to mid-January 2017.
2. Dr Chang gave evidence that the positive hair screen would place the period of use to be around the same time as the urine screen.
3. Dr Chang found 142 pg/mg of cocaine in the hair. Whilst she could not exclude the possibility of contamination if Ms Seymour lived with a heavy or chronic drug user, she would not have expected this result with less frequent exposure.

1. Ms Seymour gave detailed evidence before us.
2. Ms Seymour admitted occasionally using illicit substances in a social setting. She agreed she had taken pills whilst holidaying in Thailand, and that she could not be certain what they were.
3. She further admitted to inhaling a powder in approximately April 2016, which she assumed was cocaine.
4. Ms Seymour, however, adamantly denied having taken any illicit drugs prior to the positive drug test on 16 November 2016. Ms Seymour gave evidence that she believed the presence of cocaine metabolites in her urine was the result of intimate physical contact with a male cocaine user. She denied knowingly or intentionally breaching the condition of her registration. She gave evidence that she believed her hair may have similarly become contaminated during the course of close physical contact.
5. Ms Seymour, gave evidence that she had vaginal/penile sexual intercourse with a male, (who she did not understand at the time to be a drug user), on the evening of 15 November 2016.
6. She stated that she had sex again at approximately 10.00 am on 16 November 2016. She said that the couple kissed, no condom was used during sex and that the man was very sweaty. Ms Seymour said that after again having sex with the man on the morning on 16 November 2016, she did the household chores and went out for lunch. She said that she attended the pathologist at around 2.00 pm. Ms Seymour said she did not bathe or use the bathroom between having sex and providing the urine sample.
7. She drew our attention to various published articles discussing the possibilities of such contamination occurring

1. We accept the undisputed evidence that QML Pathology detected the cocaine metabolites in Ms Seymour's urine sample and found 142 pg/mg of cocaine in her hair sample.
2. We found the evidence of Dr Chang to be persuasive. We accepted that despite theoretical possibilities, it was highly improbable that the vagina would retain sufficient semen to produce the results detected in Ms Seymour's case. We accepted Dr Chang's evidence that the semen itself would be very dilute within the urine.
3. We accepted Dr Chang's evidence that it was highly improbable that, given the amount of contact which Ms Seymour described, that Ms Seymour's hair could have become contaminated through contact with the male.
4. We accepted, based on Dr Chang's evidence, that it was improbable that both Ms Seymour's hair and urine had been contaminated in the manner she suggested.
5. We did not find the articles, provided in support of Ms Seymour's application, assisted her case. The articles were insufficiently detailed to take her case any further than the theoretical possibilities of contamination acknowledged by Dr Chang.
6. More relevantly, various features of Ms Seymour's case, made her explanation of contamination less credible.
7. Prior to giving evidence before us, Ms Seymour had never told the Board that she had sexual intercourse on the morning of 16 November 2016. She only made reference to the evening of 15 November 2016.
8. Ms Seymour, in her evidence before us, was at pains to deny that she had in any way wiped or cleaned herself or urinated for some hours after sexual intercourse. We considered this unlikely.
9. Ms Seymour has a history of being less than frank with the Board about her drug use. When the issue of her drug use first arose in 2016, following a notification from an anonymous source, Ms Seymour, through her then lawyers in correspondence dated 20 May 2016, denied any drug use. Whilst her attached statement of the same date was more circumspect, she nevertheless took great offence to the notification. She described the requirement to undergo urine and hair testing as demeaning and humiliating. It was only when hair screening results dated 30 May 2016, were positive for methamphetamine, amphetamine, (which was a probable metabolite of the methamphetamine) and zolpidem, (which is legitimate if prescribed, but was not in her case) she conceded that she had taken "recreational" drugs during a holiday to Thailand in early 2016 and then again at a 50th birthday party.
10. The totality of evidence before us leads us to readily conclude that Ms Seymour had in fact taken cocaine consistently with her now acknowledged "recreational" drug use patterns.

Does our finding that the conduct occurred, lead us to form a reasonable belief that the way in which Ms Seymour practises nursing is or may be unsatisfactory?

1. The Board submitted that such a finding had to lead us inevitably to the formation of a reasonable belief that the way in which Ms Seymour practises nursing is or may be unsatisfactory under s. 178(1)(a)(1) of the National Law. The finding that Ms Seymour used cocaine in breach of a condition placed on her would suffice.
2. Ms Seymour contended that the positive screens could not lead us to the conclusion that her work practices are unsatisfactory.
3. She emphasised that she has no criminal record; has never been the subject of disciplinary matters relating directly to her work performance and has always had a positive working relationship with other health professionals and patients. She emphasised that she had full support from her employer and colleagues including her Nurse Unit Manager and the Director of Nursing. She emphasised that she has never been the subject of a complaint within her working environment.
4. Ms Seymour emphasised that she is not impaired and that two independent health assessments confirm this.
5. Ms Seymour emphasised that her recreational drug use has never affected her work or ability to function at work.
6. She expressed great concern that a regulatory body could control her non-working environment. She emphasised that in all other respects of her life she was healthy.
7. She nevertheless stated her intention never to take illicit substances again.
8. Ms Seymour emphasised that she has never taken medications from her workplace and that she has given 60 to 70 negative urine screens over the course of testing.
9. We heard compelling evidence from both Ms Natasha Christoforou, and Ms Ruth Anne McCullum. Their evidence led us to accept that Ms Seymour is a committed and dedicated nurse, with an excellent reputation in the hospital in which she works.
10. Ms McCallum struck us as a person of integrity who would not tolerate anything other than excellent work practices. We heard that Ms Seymour has been employed full-time for over six years at the same hospital. She is the medication safety committee representative for the surgical ward and is frequently involved in education.
11. We read a similarly positive reference from Ms Deb Dwyer, who described Ms Seymour as a reliable, respected and conscientious worker. She said there had been no identified issues at work regarding Ms Seymour's performance, capacity or conduct and that there was no evidence that Ms Seymour has ever been affected by drugs at work.
12. Ms Caroline Dobson, who is an Associate Nurse Unit Manager at John Faulkner Private Hospital, also wrote a supportive reference, (although her comments as to the perceived unfair treatment by the Board of Ms Seymour did not assist us).

1. We are very mindful of the extremely high regard in which Ms Seymour is held by her colleagues. We accept that she has impressed many by the manner in which she conducts herself in the nursing environment. We accept that in this respect she is a very real asset to nursing.
2. Nevertheless, we agree with the submissions of the Board.
3. Where a nurse tests positive for illicit drug use, real concerns arise, directly relating to his or her practise as a nurse. Those concerns may include questions around the source of the drugs; whether the nurse is attending work in a drug-affected state and whether the nurse is practising safely. It may not always be obvious, from a nurses' presentation, that he/she is under the influence of substances.
4. Despite the high regard within which she is viewed by her peers, Ms Seymour has a history of not being frank with the Board about her drug use when questioned. Given her history and the conditions she was placed under, Ms Seymour must have anticipated that her drug use would be detected and the Board would take the immediate and swift action it took.
5. She had had the benefit of experiencing firsthand the Board's non-tolerance of drug use in nursing. Nevertheless, she again screened positive.
6. We are inevitably lead to question the extent of Ms Seymour's drug taking. We do not understand, if she has given up drugs or is at most a recreational drug user, how it was that she could not abstain from drug use, even in circumstances wherein she knew she was being tested.
7. The fact that Ms Seymour provided a positive sample is remarkable. Ms Seymour had complained bitterly about the conditions on her registration. Ms Seymour was well aware of the necessity to comply with the conditions on her registration. She was seemingly unable to do so.
8. In this context, the dilute samples are of concern. Whilst we accept that the provision of dilute samples was the exception rather than the rule, and that dilute samples do not always equate to suspicion of a positive screen, given the positive tests, it is impossible to know whether or not Ms Seymour's dilute samples were or were not indicative of drug use.
9. In these circumstances, it is impossible for us to simply accept that Ms Seymour is a recreational drug user. We do not know whether or not she attends work under the influence of substances. We are simply left in the dark about her drug use, except to the extent that the positive test reveals ongoing drug use.
10. Although Ms Seymour gave evidence that she had never attended work affected by drugs, she conceded, under cross-examination, that by inhaling a powder in April 2016, which she only assumed was cocaine, she could not accurately predict how long it would remain in her system.
11. Ms Seymour gave evidence that she no longer uses illicit drugs at all. We note, however, that she similarly indicated through her lawyers in June 2016 that she did not, at that time, intend to use illicit drugs in the future. It is difficult in the circumstances to place full reliance on her assertions.
12. There are very good reasons for no tolerance. Nurses more than many other professions have ready access to drugs. The potential for abuse must be carefully monitored. The impact of a nurse being drug affected on patient care is obvious.
13. We accordingly formed a belief that the way in which Ms Seymour practises nursing may be unsatisfactory.

Is it necessary to impose conditions Ms Seymour's practise to ensure health services are provided safely and are of an appropriate quality?

1. Section 3(3)(c) of the National Law states that a guiding principle of the National Law, is that restrictions on the practise of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
2. The Board submitted that it was appropriate considering all of the previously discussed circumstances of this case that the screening be increased to Group 1 frequency.
3. The Board stressed its concerns that Ms Seymour whilst previously assuring the Board that she understood the importance of complying with a condition on her registration, nevertheless did not do so.
4. The Board contended that it was necessary to impose the Group 1 drug screening frequency in order to ensure the protection of the public. The Board contended that this was the minimum regulatory force that could be used in the circumstances to protect the public and ensure that Ms Seymour is free of illicit substances and complies with the conditions of her registration.
5. It contended that a review period of three months was justifiable in the context of the history of the matter.
6. The Board contended that it was necessary to increase the testing to Group 1 frequency to ensure that patients are not exposed to a registered health practitioner who is or may be under the effect of illicit substances.
7. Ms Seymour submitted, that the positive test(s) did not justify a need to increase the drug screening and hair analysis testing to Group 1 frequency. She contended that Group 3 screening would suffice to meet the Board's concerns. She contended that a 1 month review period was appropriate.
8. Group 1 testing is the highest level of testing requiring an individual to undertake up to 12 urine tests per month (at a cost of $66 per test) and quarterly hair analysis (at a cost of $825 each time).
9. Ms Seymour gave very detailed evidence about the negative impact of the drug screening on her life.
10. She gave evidence that the urine test requires her:
    • to dial a number every weekday to ascertain whether a drug screen is required that day;
    • make suitable arrangements for her child;
    • make suitable arrangements for her work;
    • balance fluid intake so as not to produce a dilute sample yet still be able to provide a timely sample;
    • rush to attend at the drug screen facility before 4.30 pm. The consequences of failure to attend are a breach of the condition on her registration;
    • to pass urine with the collector standing directly in front observing the passage of urine from the uretha to the container.
11. Ms Seymour gave evidence as to the humiliation of having to pass urine whilst being watched. She gave evidence that she frequently was unable to do so for 30 or so minutes. She gave evidence of the added humiliation during times of menstruation. She gave evidence of the distances that she needs to travel in order to comply with the condition. She gave evidence of the financial cost of the tests.
12. Ms Seymour gave evidence that she has become a nervous wreck.
13. She emphasised the enormous impact of the testing on her ability to care for her son, her finances and her emotional state.
14. Ms Seymour gave further evidence as to the humiliation of having chunks of hair cut out on a regular basis. Hair samples require the collector to cut a pencil thickness section of hair as close to the scalp as possible. Hair testing costs $825.

1. We accept that Group 1 testing is inconvenient, intrusive, and humiliating.
2. We accept that this has taken an emotional toll on Ms Seymour and has been a costly exercise for her.
3. We accept that Ms Seymour undertook Group 1 urine and hair tests for many months with negative results.
4. We accept that there is no direct evidence before us to suggest that Ms Seymour has ever attended work in a drug-affected state, or that she has ever put a patient at any risk. To the contrary, we heard evidence of Ms Seymour's excellent nursing reputation.
5. We accept that we have before us no evidence of actual impairment.
6. We accept that Ms Seymour has the support of those who work around her.
7. We accept that Ms Seymour has never had any work-related disciplinary action taken against her.
8. We accept that Ms Seymour has never had a complaint made against her by a patient.
9. We accept that two Board-appointed assessors have found no evidence of impairment.
10. We accept that Ms Seymour has never faced a Criminal Court. She has no findings of guilt or criminal convictions against her name.
11. We read a letter, dated 10 January 2017, from Dr Humphrey Gomes, who is Ms Seymour's general practitioner. He described the stress under which Ms Seymour was operating in relation to these matters. Mr Glenn Taylor, who is the Chief Executive Officer of the Nursing and Midwifery Health Program, Victoria, also attributed stress suffered by Ms Seymour to having conditions attached to her nursing. We accept this to be the case.
12. All of these are considerations that weigh heavily in Ms Seymour's favour.
13. However, we cannot ignore the very real concerns raised by the Board and already expressed by us.

1. It is important to identify the actual risk posed by a health practitioner and assess the likelihood and possible consequences of the risk and respond in a manner that is proportionate. The aim is not to punish the practitioner. It is to use the minimum regulatory force appropriate to manage the risk posed by the practitioner in order to protect the public and maintain community confidence.
2. The purpose of requiring a practitioner to undertake such screening is to protect the public. Blood testing, urine drug screening and/or hair testing are currently the best means to assess if someone is affected by drugs and/or alcohol and is unable to commence or continue safely in practise or clinical training.
3. Given the circumstances of Ms Seymour's ongoing, positive test results, we are not satisfied that Group 3 frequency testing, which involves only monthly urine samples and quarterly hair analysis, is sufficient.
4. We accept, however, that all of the concerns raised by the Board are readily met by Ms Seymour undertaking the random urine samples and hair testing at Group 2 frequency. The screening remains random and would readily detect whether or not Ms Seymour was compliant.
5. We have not been persuaded that the imposition of Group 1 testing is appropriate or warranted in this instance.
6. We are satisfied that Group 2 testing frequency is sufficient to ensure the safety of the public.
7. We consider a review period of 3 months to be appropriate.
8. We will make orders accordingly.
9. We hope that Ms Seymour now understands the necessity for drug screening.
10. Drug screening conditions placed on a practitioner's registration allow the Board to protect the public through ensuring that a health practitioner is safe to continue working and is providing services of an appropriate quality.
11. If a practitioner considers a condition to be unfair or unduly onerous, the practitioner has a right of review to this Tribunal. That is the course that should be adopted.
12. It is never appropriate to ignore and choose to contravene the condition. Ms Seymour's reluctance to abide by a condition on her registration in relation to drug use potentially undermined this. That was a serious matter.
13. To do so strikes at the integrity of the regulatory authority responsible for ensuring the safety of the public.

1. [1] There had been an earlier similar notification in 2014, which was not the subject of any further action by the Board.

2. [2] In a telephone conversation to the board on 7 December 2016, Dr Chang explained that cocaine is excreted very quickly which is why the test is for cocaine metabolites.