Tribunal finds nurse in breach of conditions but orders reduced drug testing

30 Jun 2017

A tribunal has found that a nurse breached conditions on her registration, but upheld her appeal for reduced drug screening.

The Victorian Civil and Administrative Tribunal (the tribunal) upheld the decision of the Nursing and Midwifery Board of Australia (NMBA) that enrolled nurse, Ms Tara Seymour engaged in conduct that was or may be unsatisfactory in that she breached conditions on her registration.

Ms Seymour had been subject to conditions on her nursing registration set by the NMBA. The conditions included drug screening requiring Ms Seymour to only take substances prescribed, approved or administered by a nominated treating practitioner; and being supervised while practising (indirect supervision).

On 22 November 2016, Ms Seymour’s urine drug screen of 16 November 2016 returned a positive test result for cocaine metabolites. On 28 November 2016, a confirmatory test confirmed that result.

By virtue of returning a positive test result, the NMBA formed a reasonable belief that Ms Seymour breached the conditions on her registration. As a result, the NMBA decided to caution Ms Seymour and increase her required frequency of drug screening. On 29 December 2016, Ms Seymour appealed this decision.

The appeal was heard on 1 March 2017. Ms Seymour contested the finding of the breach, as well as the decision to increase the frequency of the drug screening.

The tribunal handed down its decision on 1 June 2017. The tribunal accepted that Ms Seymour had breached the conditions on her registration. It found that Ms Seymour’s claim that her November 2016 positive cocaine test was the result of intimate physical contact with a cocaine user was implausible.

The tribunal found that while the breach had been established, testing at the frequency that had been in place prior to the breach was sufficient to achieve protection of the public.

In coming to this decision, it noted (among other things) that Ms Seymour ‘must have anticipated that her drug use would be detected and the NMBA would take the immediate and swift action it took’. It also noted that ‘she had the benefit of experiencing firsthand the NMBA’s non-tolerance of drug use in nursing’.

However, the tribunal also emphasised that the aim of regulation is not to punish the practitioner but to manage the risk posed by the practitioner to the public. In assessing this, it noted (among other things):

• that Ms Seymour was held in high regard by her nursing colleagues and had not been the subject of work-related disciplinary action,
• the lack of any evidence that Ms Seymour was impaired or had ever practised the profession while impaired,
• the emotional and financial burden of the conditions,
• the number of clear tests she had returned, and
• the minimum regulatory force required to appropriately manage the identified risk.

The decision can be viewed on the Austlii website.