The key issue
Whether EEB’s conduct could be considered unprofessional conduct or professional misconduct under the National Law, and the most appropriate penalty.
On 20 January 2017, the Board decided to take immediate action against EEB by way of suspending her registration. Following the completion of its investigation into EEB’s conduct, the Board referred four serious allegations against EEB to the Victorian Civil and Administrative Tribunal (Tribunal), including that she misappropriated Schedule 8 drugs, practised as a registered nurse whilst addicted to over-the-counter codeine and failed to attend a health assessment.
On 20 November 2020, the Tribunal found only one of the allegations proven. The Tribunal held that EEB failed to acknowledge, or comply with, a requirement to attend a health assessment or provide any reasonable excuse for her failure to attend. The Board was asked to make submissions on the characterisation of the conduct.
The Board submitted that the Tribunal should find EEB guilty of professional misconduct because her non-attendance for a health assessment was conduct which fell substantially below the standard reasonably expected of a registered health practitioner. Specifically, failure to cooperate with the Board and respond to legitimate inquiries was deliberate, demonstrated a lack of insight and frustrated the Board’s performance of its functions, which aim to protect the public.
The Tribunal held that EEB’s conduct amounted to professional misconduct, which justified the cancellation of her registration. A registered nurse who knew why the health assessment was required and yet did not attend or even make some contact with the Board to explain why she was not attending was characterised as conduct that fell substantially below the standard reasonably expected.
The Tribunal conceded that it had some reservations about making a finding of professional misconduct for conduct which would not ordinarily be regarded at the higher end of the spectrum. However, since EEB failed to respond in any way to the Board over a period of 7 months, it found this was a substantial departure from expected standards.
The cancellation of registration was appropriate in the circumstances because EEB’s capacity to practice and her health status could be carefully considered by the Board upon any application for re-registration before deciding whether she was fit to return to practise, in order to protect the public. However, the Tribunal stated that cancellation would not always be appropriate in these circumstances.
A failure to attend a health assessment is not necessarily conduct which will constitute professional misconduct justifying cancellation of registration, but practitioners should be aware that a failure to cooperate and comply with the requirements of the regulator in any way may justify a harsh finding and penalty.
The decision Nursing and Midwifery Board of Australia v EEB (Review and Regulation)  VCAT 662 can be read here.
Authors: Daniel Spencer and Morgan Barnsby.