Former nurse resentenced and handed bigger penalty for continuing to practise after surrendering registration

19 Sep 2022

At a trial on 8 April 2022, Mr Alvarez was found guilty of all four charges filed by the Australian Health Practitioner Regulation Agency (Ahpra). On 12 May 2022, he was sentenced in the Magistrates’ Court of Victoria at Moorabbin to a three year adjourned undertaking, with conditions that he pay $1000 to the court fund and be of good behaviour. He was also ordered to pay $500 of Ahpra’s legal costs.

The Director of Public Prosecutions appealed the sentence on the grounds it was inadequate, and today the County Court upheld the appeal and resentenced Mr Alvarez to a fine of $16,000 and confirmed his conviction.  He was also ordered to pay Ahpra’s costs of the Magistrates Court proceedings in a sum to be agreed by the parties.

The appeal was heard today before Judge Chambers who was satisfied that the sentence imposed by the Magistrates’ Court should be set aside, noting the National Law’s primary objective was to protect the public.  ‘Sentencing principles of general deterrence and denunciation are paramount considerations… the Court must make clear in sentencing Mr Alvarez that any other person minded to practise whilst not registered, faces serious consequences,’ she said.  

In sentencing Mr Alvarez, her Honour accepted that he knowingly and deliberately offended and did so despite  ‘the clear advice from Ahpra’ and that it wasn’t ‘until the action by Ahpra in notifying [his employer] that he desisted.’ She further stated, 'he had adequate time to desist’ and pointed to his previous offending under the Migration Act and ‘concerning’ failure to notify the Board of his conviction as reasons for the need for specific deterrence despite Mr Alvarez having some prospects of rehabilitation and no longer working in the health sector.

Ahpra CEO, Martin Fletcher, said: ‘We thank the DPP for taking this case on. Today’s outcome sends a strong signal that deceiving the public in this way is a serious matter.’

Nursing and Midwifery Board of Australia Chair, Adjunct Professor Veronica Casey AM, said: ‘The behaviour by this individual does not reflect the care, professionalism and trust we expect from our registered nurses. We support this revised outcome.’ 

Background

In October 2019, the Nursing and Midwifery Board of Australia (NMBA) proposed to suspend Mr Alvarez’s registration as a nurse on public interest grounds after it was made aware that he had not disclosed that he had been convicted of three charges under the Migration Act 1958 (Cth) of charging and receiving fees as a migration agent, when he was not registered as a migration agent. 

When the NMBA invited Mr Alvarez to provide a response to its proposal to suspend his registration as a nurse, Mr Alvarez surrendered his registration instead.  

Mr Alvarez did not tell his nursing agency employer that he had surrendered his registration.  Instead, he continued to accept and work four shifts as a registered nurse in the Acute Cardiac Unit of a Melbourne private hospital between 14 and 21 October 2019.  His employer only discovered by chance that he was no longer registered after Ahpra staff made routine enquiries with it on 24 October, hours before he was due to commence another shift.  Mr Alvarez’s employment was then immediately terminated. 

Mr Alvarez denied the allegations, and the matter proceeded to trial in the Moorabbin Magistrates Court on 8 April 2022. Mr Alvarez claimed that despite having completed the surrender form himself by hand he believed his surrender of registration wasn’t due to take effect until later in the month, as he had believed he had written ‘24/10/2019’. He also claimed that he misunderstood a letter he received from Ahpra that confirmed his surrender of registration. The result, Mr Alvarez argued, was that he believed he was still registered when he worked the four shifts in October. 

At the trial Magistrate Lee rejected these submissions. He said that Mr Alvarez’s interpretation of Ahpra’s letter to him “could not be reasonable” and he did not accept that Mr Alvarez’s belief that his registration would continue until 24 October 2019 was genuine.  Ultimately Magistrate Lee said that he was satisfied beyond reasonable doubt that Mr Alvarez knew that he was not registered when he attended the shifts and that he was guilty of knowingly holding himself out as a registered nurse. 

Ahpra believed that the penalty of a $1000 bond did not sufficiently reflect the seriousness of Mr Alvarez’s offending, and referred the matter to the Director of Public Prosecutions (DPP). On 6 June 2022, the DPP filed a notice to appeal the sentence imposed by the Magistrates’ Court on the grounds that the sentence was inadequate and an appeal was in the public interest. 

Anyone with concerns about whether an individual is registered can check the online Register of practitioners maintained by Ahpra or call 1300 419 495.

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