Background
Ms Mizzo was charged with ten indictable offences related to procuring medical certificates for her sister and sister’s partner (known as ELD and LWY) from a former GP colleague. The GP is the subject of separate disciplinary and criminal proceedings.
The charges allege that Ms Mizzo conspired with the GP to produce the medical certificates so that ELD and LWY could be paid sick leave to which they were not entitled. Ms Mizzo submitted that she intended to defend the charges on the basis that there was no evidence that she knew that ELD and LWY were not truly unwell.
On 23 June 2022, the Nursing and Midwifery Board of Australia (the Board) suspended Ms Mizzo’s registration by way of immediate action (the Decision) after notification from the Police of the charges. The Board considered it was in the public interest to suspend given the serious criminal offences for which she was charged and the need to maintain public confidence in the nursing profession.
Ms Mizzo applied for review of the Decision and sought a stay pending that review. Ms Mizzo submitted that a stay of her suspension should be granted, inter alia, for the following reasons:
- she had strong prospects at succeeding in having the Decision overturned on the basis that the charges were not so serious that immediate action was required to maintain public confidence; and
- the public interest did not require that she remain suspended, rather the public interest supported her returning to practice in light of the nurse shortages across Victoria.
Outcome
The Tribunal accepted that whilst there was a body of objective evidence supporting the charges, there were some gaps which could mean that some or all of the charges would fail to be proved beyond reasonable doubt. Further, the alleged conduct whilst serious, was not of the same level of seriousness when compared to other cases in which immediate action in the public interest had been taken.
The Tribunal considered that the ongoing suspension would have a significant impact on Ms Mizzo having regard to her family and financial needs (she was the sole carer of her mother who had a disability), which raised the issue of whether the suspension maintained public confidence with as little damage to the practitioner as possible.
Here, the public interest supported Ms Mizzo remaining in practice, provided she could practice safely, competently and ethically, especially considering the current high demand for nurses and labour shortages. The Tribunal stated that whilst there was some concern regarding Ms Mizzo’s ability to practice ethically, this was not so serious that her employer would terminate her employment and there were no concerns about her ability to practice safely and competently.
All of these factors weighed in favour of the stay. Ultimately, the Tribunal was not convinced that the public, with an appropriate understanding of the presumption of innocence and knowing of the right to seek a review of the Decision, would be so concerned about the charges against Ms Mizzo so as to diminish their confidence in the nursing profession.
The Board’s decision to suspend Ms Mizzo’s registration was stayed until the review application could be heard. The Tribunal commented that in circumstances where there was no immediate risk to the public it would be more problematic if Ms Mizzo suffered serious financial hardship whilst awaiting the review, which may be resolved in her favour.
Implications
Practitioners should be aware that whilst their personal circumstances, including their financial position, will be considered by a Tribunal, they will not override the paramount consideration of protecting the public, but may be of more weight where there is a limited risk to the public.
To read the decision in Mizzo v Nursing and Midwifery Board of Australia (Review and Regulation) [2022] VCAT 1043, click here.
