Nursing and Midwifery Board of Australia v Burns  
(Review and Regulation) [2022] VCAT 761 (7 July  
2022)  
Last Updated: 8 July 2022  
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL  
ADMINISTRATIVE DIVISION  
REVIEW AND REGULATION LIST  
CATCHWORDS  
VCAT REFERENCE NO Z275/2021  
Review and Regulation List – Health Practitioner Regulation National Law (Victoria) Act  
2009, sections 5, 130, 196(2) and 196(4) – allegations that a registered nurse pleaded  
guilty and was convicted of charges arising from the theft of prescription booklets,  
unjustified accessing of patients’ confidential information and possession of Schedule 4  
poisons – whether the nurse had an impairment at the time of the hearing – addiction  
specialist’s expert opinions on disorders – nurse’s admissions – relevance of nurse’s  
retirement – agreed position as to findings of fact, characterisation and determinations.  
APPLICANT  
RESPONDENT  
WHERE HELD  
BEFORE  
Nursing and Midwifery Board of Australia  
Peter Burns  
Melbourne  
A. Dea, Senior Member  
M. Archibald PSM, Member  
P. Barry, Member  
Videoconference hearing  
30 May 2022  
HEARING TYPE  
DATE OF  
HEARING  
DATE OF  
ORDERS  
30 May 2022  
7 July 2022  
DATE OF  
REASONS  
CITATION  
Nursing and Midwifery Board of Australia v Burns (Review and  
Regulation) [2022] VCAT 761  
ORDERS  
Having found the respondent has behaved in ways that constitute professional misconduct,  
under section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Victoria) Act  
2009 (National Law), the Tribunal orders that:  
1. Under section 196(2)(a) of the National Law, the respondent is reprimanded.  
2. Under section 196(2)(e) of the National Law, the respondent’s registration is cancelled.  
3. Under section 196(4)(a) of the National Law, the respondent is disqualified from  
applying for registration for a period of three years from the date of these orders.  
4. Reasons to follow.  
A Dea  
M Archibald PSM  
P Barry  
Senior Member and  
Presiding Member  
Health Practitioner  
Member  
Health Practitioner  
Member  
APPEARANCES:  
For Applicant  
Ms K Walsh, solicitor  
In person  
For Respondent  
REASONS  
1. Mr Peter Burns was first registered as a nurse in 1979. After around 40 years of  
unblemished practise, he was found to have engaged in criminal conduct in the context  
of an opioid use disorder. At the relevant time, Mr Burns was managing chronic pain  
associated with ankle injuries. He had been prescribed Panadeine Forte for many years,  
but, when he found the prescribed quantities were inadequate to manage his pain, he  
turned to theft and forgery to supplement his supply.  
2. At the relevant time, Mr Burns was employed by the Peninsula Mental Health Service  
(Peninsula Health) in the Youth Prevention and Recovery Care (Y-PARC) team. In the  
period June 2018 and September 2019, Mr Burns stole seven prescription booklets  
which carried five doctors’ names and credentials. He accessed the confidential health  
information of two patients at Peninsula Health. He used the patients’ details to  
complete fraudulent prescriptions for Panadeine Forte and he then forged the doctor’s  
signatures. He attended various pharmacies over time, presented the prescriptions and  
the medication was dispensed. Mr Burns then took the medications. As at July 2019, Mr  
Burns was taking eight Panadeine Forte tablets per day.  
3. Mr Burns had also struggled with alcohol abuse for many years. From time to time he  
was admitted for rehabilitation treatment but, he then relapsed.  
4. Despite all of the above, there was no evidence before us that Mr Burns caused any  
patient harm while under the influence of the substances or that his employer detected  
performance issues. There was no dispute that the medications were obtained and used  
by Mr Burns only.  
5. Fortuitously, on 25 September 2019, an alert pharmacist became suspicious about a  
prescription, including because of irregularities in respect of the patient’s address and  
Medicare number. Mr Burns was asked about the prescription and other matters. Mr  
Burns told the pharmacist the medication was for his son. While the pharmacist had  
insufficient information to warrant refusing to dispense the medication that day, he  
made further enquiries. Those inquiries led to the prescribing coming to the attention of  
Peninsula Health and it commenced an investigation into Mr Burns. That investigation  
led to Mr Burns resigning, being reported to Victoria Police and to the Nursing and  
Midwifery Board of Australia (Board).  
6. Mr Burns was charged with seven charges of theft in respect of the prescription booklets,  
nine charges of making a false document in respect of the forgery of 62 prescriptions and  
nine charges of unauthorised possession of a Schedule 4 poison in respect to his  
[1]  
possession of Panadeine Forte.  
7. Mr Burns made full admissions to his employer and, in due course, to the Magistrates’  
Court.  
8. On 30 July 2020, Mr Burns appeared in the Magistrates’ Court of Victoria at Frankston  
and pleaded guilty to the charges. He was convicted of each of the charges and fined  
$3,000 as part of an aggregate order.  
9. After the Board received notice of the allegations against Mr Burns, an Immediate Action  
Committee (IAC) was convened and it decided to take immediate action to suspend him  
under the Health Practitioner Regulation National Law (Victoria) Act 2009 (National  
Law). That suspension was imposed on 31 October 2019. Mr Burns had not worked as a  
nurse since and has retired.  
10. The Board referred Mr Burns to this Tribunal in order for it to make decisions about his  
professional conduct and make determinations under the National Law. The parties  
proposed that Mr Burns’ behaviour, as described in three allegations, be characterised as  
professional misconduct and that we find he had an impairment for the purposes of the  
National Laws. The parties also proposed that we make determinations that Mr Burns be  
reprimanded, have his registration cancelled and that he be disqualified from applying  
for registration for three years.  
11. We agreed those proposed findings and determinations were appropriate and so made  
the orders on page 1 at the conclusion of the hearing. We now provide our reasons for  
the orders.  
12. Before moving to the detail of Mr Burns’ circumstances, we record two matters of  
concern relating to Peninsula Health.  
13. First, as we understood it, Mr Burns was readily able to access the prescription booklets  
in issue because they were in an office or like location at Peninsula Health. We  
understood they were held at the facility in a staff area and, as Mr Burns described it,  
[2]  
they were ‘just sitting there’. Assuming that to be correct, clearly had the prescription  
booklets been properly secured, Mr Burns would not have had such easy access to them  
and so may not have committed the criminal offences.  
14. Second, as we understood the materials, all of the doctors whose prescription booklet  
[3]  
were accessed by Mr Burns had not worked at Peninsula Health for 12 to 18 months.  
Assuming that to also be correct, the failure to dispose of or otherwise securely deal with  
the prescription booklets is extremely concerning.  
15. We trust that, in the aftermath of Mr Burns’ actions, Peninsula Health took appropriate  
steps to audit and deal with prescription booklets at its premises.  
The factual and legal context  
16. The following comes from the parties’ Statement of Agreed Facts, Findings and  
Determinations (Agreed Statement) and from documents contained in the Tribunal  
Book.  
17. The identities of the medical practitioner’s whose prescription booklets had been  
accessed, the patients whose health information was used by Mr Burns and the  
pharmacies at which the fraudulent prescriptions were presented were not material to  
our decision and so we have not referred to them by name. Instead we have referred to  
them using letters of the alphabet or numbers.  
Registration history and qualifications  
18. Mr Burns was first registered as a nurse on 21 February 1979.  
19. From 1 July 2010 (when the National Law came into force), Mr Burns was registered as a  
registered nurse (Division 1).  
20. At all material times, Mr Burns was a registered nurse under the National Law and at all  
material times, he was practising as a nurse at Peninsula Health in the Y-PARC team.  
The pharmacist’s inquiries  
21. Mr Burns presented a prescription for 20 Panadeine Forte tablets for dispensing on 25  
September 2019. He told the pharmacist that he was collecting the medication for  
someone else.  
22. The pharmacist looked up the named patient’s details on the patient history database  
and noted the address and Medicare details on the prescription differed from those on  
the database. He asked Mr Burns if the patient was using any other medications and he  
responded ‘no’.  
23. Mr Burns left the pharmacy while the prescription was being prepared. While Mr Burns  
was out of the pharmacy, the pharmacist looked up the ‘safe scripts’ database. A warning  
came up that said there were multiple different prescribers for the named patient, which  
is common if a patient ‘doctor shops’.  
24. The pharmacist then looked up the My Health Record system which showed that the  
named patient was on other medications. When Mr Burns returned, the pharmacist  
asked him about his relationship with the patient. Mr Burns said he was the patient’s  
father. The pharmacist asked about the different address on file and ask for confirmation  
about the addresses. Mr Burns seemed uncertain but gave an answer. The pharmacist  
thought it was all a bit strange but did not have sufficient cause to conclude there was  
wrongdoing.  
25. After dispensing the medication, the pharmacist had remaining concerns and so tried to  
call the medical clinic listed on the prescription. It was the Y-PARC clinic but it was  
closed.  
26. The pharmacist was sufficiently concerned to persist with his inquiries.  
27. He started to look at the patient history to see if his pharmacy had issued any other  
medication to the patient. He located details of another prescription that had been  
issued in that patient’s name but by a different doctor. When he located the physical  
script he compared it to the prescription that had been presented by Mr Burns. He  
thought the writing was the same.  
28. On the next day, a Friday, he contacted Y-PARC and reported what he had found. He  
sent a copy of the prescriptions and a photocopy of a photograph of Mr Burns from the  
CCTV footage in the pharmacy.  
29. On the following Monday, 30 September 2019, a nurse from Peninsula Health contacted  
the pharmacist and asked for more details. The nurse told the pharmacist that one of the  
prescribing doctors had not worked at the Peninsula Health for some years and she was  
unfamiliar with the other doctor’s name. They agreed it was unlikely that both doctors  
would prescribe Panadeine Forte given the nature of the treatment offered at Y-PARC,  
namely mental health treatment.  
30. After that conversation the pharmacist did a further search and discovered Panadeine  
Forte had been prescribed by one of the doctors. He located five prescriptions in total.  
All of those prescriptions had the same handwriting and were for the same drug. He gave  
an update to the Peninsula Health nurse and also notified the Department of Health and  
Human Services.  
[4]  
31. The pharmacist provided a written statement to police in October 2019.  
32. The pharmacist is to be thanked for his persistent efforts to ensure the integrity of the  
prescriptions and the wider systems designed to ensure medications are dispensed  
lawfully.  
Notification, immediate action and investigation  
33. On 3 October 2019, the Australian Health Practitioner Regulation Agency (AHPRA)  
received the notification from Peninsula Health. In the Notification, Peninsula Health  
stated that it had conducted an investigation into the allegations that Mr Burns had:  
(a) Stolen blank prescription booklets from doctors employed by Peninsula Health;  
and  
(b) Fraudulently written and signed scripts, using the name and confidential  
identifying data of previous clients at Y-PARC, in order to obtain medications for  
his own use, which conduct Mr Burns admitted to.  
34. On 30 September 2019, Peninsula Health informed Mr Burns that it was investigating a  
number of allegations against him and that he would be suspended from his  
employment while the investigation occurred.  
35. On 18 October 2019, Mr Burns advised AHPRA that he had no submissions to make to it  
about the prospective immediate action and that he understood his registration would be  
[5]  
suspended and the investigation would continue.  
36. On 21 October 2019, the IAC formed a reasonable belief that, because of his conduct  
and/or health, Mr Burns posed a serious risk to persons, such that it was necessary to  
take immediate action to suspend Mr Burns’ registration under section 156 of the  
National Law. As mentioned earlier, that decision remained in effect as at the hearing  
date.  
37. Mr Burns resigned from Peninsula Health on 21 October 2019 as a result of the conduct  
referred to in the notification and has not worked as a registered nurse since. He has  
now retired and has no intention of applying to be registered as a nurse again.  
38. On 31 October 2019, AHPRA notified Mr Burns that it was conducting an investigation  
into the conduct and circumstances which were the subject of the notification.  
39. As part of the investigation, AHPRA required and arranged for Mr Burns to undergo a  
health assessment with Dr Mathew Frei, addiction medicine specialist on 2 December  
2019. Mr Burns attended a follow up health assessment in August 2021.  
40. As a result of the notification, Victoria Police commenced a criminal investigation in or  
around December 2019, which culminated in Mr Burns pleading guilty to and being  
convicted of the charges detailed below.  
41. On 27 March 2020, AHPRA notified Mr Burns that it had placed its investigation on  
hold pending the outcome of the Victoria Police investigation.  
42. On 19 August 2020, AHPRA notified Mr Burns that it was recommencing its  
investigation as the criminal proceedings had been finalised.  
The criminal proceeding  
43. On 20 December 2019, Mr Burns was arrested by Victoria Police and charged with  
numerous offences, including theft (under section 74 of the Crimes Act 1958 (Vic)  
(Crimes Act)) and make false document (under section 83A(1) of the Crimes Act).  
44. On 30 July 2020, Mr Burns appeared in the Magistrates’ Court of Victoria at Frankston  
and pleaded guilty to the following charges:  
(a) Seven charges of theft, relating to misappropriating blank scripts belonging to  
other medical practitioners employed by Peninsula Health between 1 June 2018  
and 25 September 2019, contrary to section 74 of the Crimes Act;  
(b) Nine charges of making a false document, relating to the forging of 62  
prescriptions between 1 June 2018 and 25 September 2019, contrary to section  
83A(1) of the Crimes Act; and  
(c) Nine charges of unauthorised possession of a Schedule 4 poison, namely  
Panadeine Forte, between 1 June 2018 and 25 September 2019, contrary to section  
36B(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (DPCS  
Act).  
45. Mr Burns was convicted of each of the charges and fined $3,000 as part of an aggregate  
order. The Magistrate noted that he would have fined Mr Burns $4,000, but for his early  
guilty plea.  
46. Relevantly, his Honour Mr Gattuso, Magistrate, in handing down his decision, noted:  
And you understand what I mean by a breach of trust? That in your career you had  
trust put in you and faith put in you by those you were working with and working  
for and people you were treating and that breach of trust is very significant when  
you’re taking scripts from doctors, using them. I accept you were using them for  
your own pain management but the consequence is not only to your own health,  
but as I referred earlier, the danger that you could present to – and I imagine you  
would hate to hear that or hate to hear that, that you perhaps put your patients in  
jeopardy but that’s the reality of it.  
You don’t have the clarity of thought that you might otherwise have and it can  
impact, even if in a minor way, your judgement. So there are reasons why this  
medication went from being an over the counter to a prescription only  
[6]  
medication.  
Health impairment  
47. As stated earlier, on 2 December 2019, Mr Burns underwent a health assessment with Dr  
Frei. Dr Frei provided a report dated 12 February 2020, in which he advised, amongst  
other things, that:  
(a) Mr Burns had a partially remitted opioid use disorder (codeine) and a moderate  
alcohol use disorder (active);  
(b) Mr Burns was early in his recovery from his opioid use disorder, which was  
characterised by poor judgment and some loss of control; and  
(c) If Mr Burns returned to practice as a nurse, he should be subject to urine  
and/or hair testing conditions as well as supervision requirements.  
48. On 30 July 2020, Mr Burns’ legal representative made submissions to Magistrate  
Gattuso that Mr Burns had developed a tolerance for and addiction to Panadeine Forte  
medication.  
49. On 30 August 2021, Dr Frei provided a supplementary report, in which he noted that his  
opinion and recommendations remained unchanged from those outlined in the February  
2020 report. Having said that, Dr Frei advised that Mr Burns’ opioid use disorder was in  
long term remission and that, while the remission from the alcohol use disorder was for  
a shorter period, it was stable and at a low level of severity.  
Obligations imposed under the relevant legislation  
50. At all relevant times while registered as a registered nurse, Mr Burns was required to  
comply with the DPCS Act and to not participate in unlawful behaviour.  
51. Relevantly, under the DPCS Act, a person must not possess a Schedule 4 poison unless  
[7]  
they are authorised or licensed to do so.  
52. Relevantly, under the Crimes Act:  
(a) A person steals if they dishonestly appropriate property belonging to another  
[8]  
with the intention of permanently depriving the other of it;  
(b) A person found guilty of theft is guilty of an indictable offence and liable to  
[9]  
level 5 imprisonment (10 years maximum);  
(c) A person must not make a false document with the intention that he or she, or  
another person, shall use it to induce another person to accept it as genuine, and  
by reason of so accepting it to do or not to do some act to that other person’s, or to  
[10]  
another person’s prejudice;  
and  
(d) A person who is found guilty of an offence under section 83A(1) is liable to level  
5 imprisonment (10 years maximum).  
Obligations as a registered nurse  
53. At all relevant times, Mr Burns was obliged to comply with the Code of Conduct for  
Nurses, 1 March 2018 (Code of Conduct) and The International Council of Nurses Code  
of Ethics for Nurses, 2012 (Code of Ethics).  
54. The obligations imposed on Mr Burns by the Code of Conduct relevantly included that  
[11]  
he:  
(a) Respect the nurse-person professional relationship by not taking possessions  
and/or property that belong to the person and/or their family;  
(b) Comply with relevant poisons legislation, authorisation, local policy and own  
scope of practice, including to safely use, administer, obtain, possess, sell, supply  
and store medications and other therapeutic products;  
(c) Not participate in unlawful behaviour and understand that unlawful behaviour  
may be viewed as unprofessional conduct or professional misconduct and have  
implications for his registration;  
(d) Respect the confidentiality and privacy of people by seeking informed consent  
before disclosing information, including formally documenting such consent where  
possible;  
(e) Access records only when professionally involved in the care of the person and  
authorised to do so; and  
(f) Not transmit, share, reproduce or post any person’s information or images,  
even if the person is not directly named or identified, without having first gained  
written and informed consent.  
55. The obligations imposed on Mr Burns by the Code of Ethics relevantly included that  
[12]  
he:  
(a) Demonstrate professional values such as respectfulness, responsiveness,  
compassion, trustworthiness and integrity;  
(b) Hold in confidence personal information and use judgement in sharing this  
information; and  
(c) At all times maintain standards of personal conduct which reflect well on the  
profession and enhance its image and public confidence.  
Decision to refer  
56. On 21 January 2021, the Board formed a reasonable belief that Mr Burns had engaged in  
professional misconduct and referred the matter to the Tribunal under s 193(1) of the  
National Law.  
The Amended Allegations  
57. The Amended Allegations before the Tribunal are set out in Appendix A to these  
Reasons. They are set out in summary below.  
Allegation 1  
58. Allegation 1 was that, in the period 1 June 2018 to 25 September 2019, Mr Burns  
engaged in:  
(a) professional misconduct within the meaning of paragraphs (a) and/or (b)  
and/or (c) of the definition of professional misconduct in s 5 of the National Law;  
and/or  
(b) unprofessional conduct within the meaning of the definition of unprofessional  
conduct in s 5 of the National Law,  
in that, on 30 July 2020, he pleaded guilty in the Magistrates’ Court of Victoria,  
sitting at Frankston, and was convicted of:  
(i) seven charges of theft, relating to misappropriating blank scripts belonging to  
other medical practitioners employed by Peninsula Health between 1 June 2018  
and 25 September 2019, contrary to s 74 of the Crimes Act;  
(ii) nine charges of making a false document, relating to the forging of 62  
prescriptions between 1 June 2018 and 25 September 2019, contrary to s 83A(1) of  
the Crimes Act; and  
(iii) nine charges of unauthorised possession of a schedule 4 poison, namely  
Panadeine Forte, between 1 June 2018 and 25 September 2019, contrary to s  
36B(2) of the DPSC Act.  
59. The particulars of Allegation 1 explain that, while Mr Burns was working at Y-PARC, he  
stole prescription booklets belonging to Peninsula Health and which were marked with  
individual medical practitioner’s details. He then completed prescriptions in the names  
of current or former Peninsula Health patients and forged the signature of the relevant  
medical practitioner. Each prescription was for 20 Panadeine Forte tablets. Mr Burns  
then presented the fraudulent prescriptions at a range of pharmacies. As indicated by  
the detailed particulars contained in Appendix A, Mr Burns spaced out his attendance at  
the pharmacies over periods of up to 12 months, presumably so as to not attract any  
suspicion. On each occasion the medication was dispensed.  
Allegation 2  
60. Allegation 2 was that between 2 March 2019 and 25 September 2019, Mr Burns engaged  
in:  
(a) professional misconduct within the meaning of paragraphs (a) and/or (b)  
and/or (c) of the definition of professional misconduct in s 5 of the National Law;  
and/or  
(b) unprofessional conduct within the meaning of the definition of unprofessional  
conduct in s 5 of the National Law,  
in that he accessed confidential health information belonging to persons other than  
himself, in circumstances where there was no clinical justification to do so.  
61. This Allegation concerned Mr Burns’ accessing and using the health information of then  
current and former patients at Y-PARC in the fraudulent prescriptions. In order to do so,  
Mr Burns logged in to Peninsula Health’s digital records system and accessed the two  
patients’ confidential health records without any clinical or legal justification for doing  
so. He used the patients’ names, addresses and Medicare numbers to populate the  
prescriptions.  
Allegation 3  
62. In Allegation 3, the Board alleged that, between on or about 28 December 2019 and on  
or about 7 August 2020, Mr Burns engaged in:  
(a) professional misconduct within the meaning of paragraphs (a) and/or (b)  
and/or (c) of the definition of professional misconduct in s 5 of the National Law;  
and/or  
(b) unprofessional conduct within the meaning of the definition of unprofessional  
conduct in s 5 of the National Law,  
in that he failed to notify the Board of a relevant event within seven days after  
becoming aware that a relevant event had occurred in breach of s 130 of the  
National Law.  
63. Section 130 of the National Law says that:  
A registered health practitioner or student must, within 7 days after becoming  
aware that a relevant event has occurred in relation to the practitioner or student,  
give the National Board established for the practitioner’s or student’s health  
profession written notice of the event.  
64. In this case, the ‘relevant events’ were the charges of theft, make a false document and  
unauthorised possession of a Schedule 4 poison, laid against Mr Burns and then the  
convictions in respect of those charges.  
Allegation 4  
65. Allegation 4 was that, as at the time of the hearing, Mr Burns had an impairment, as  
defined in section 5 of the National Law, in that he had a physical or mental impairment,  
condition or disorder that detrimentally affects or is likely to detrimentally affect his  
capacity to practise as a nurse.  
66. Section 196(1)(b)(iv) of the National Law provides that, after hearing an application by  
the Board, the Tribunal may decide that the practitioner has an impairment.  
67. Relevantly, in the National Law the definition of ‘impairment’ in relation to a person  
means:  
the person has a physical or mental impairment, disability, condition or disorder  
(including substance abuse or dependence) that detrimentally affects or is likely to  
detrimentally affect –  
(a) for a registered health practitioner or an applicant for registration in a health  
profession, the person’s capacity to practise the profession;  
68. The particulars relied on for Allegation 4 were the content of Dr Frei’s reports and  
submissions his legal representative made in the Magistrate’s Court on 30 July 2020 (as  
summarised in paragraph 48 above).  
Findings of fact  
69. We make our findings on the balance of probabilities, comfortably satisfied they are  
open on the evidence, taking into account the seriousness of the Allegations and the  
[13]  
consequences of findings such as these.  
70. Mr Burns admitted all of the factual elements of the Allegations and particulars. That  
meant he admitted:  
◦ Allegation 1: he pleaded guilty in the Magistrates’ Court of Victoria, sitting at  
Frankston, and was convicted of the offences set out in paragraph 44 above:  
◦ Allegation 2: between 2 March 2019 and 25 September 2019, he accessed  
confidential health information belonging to persons other than himself, in  
circumstances where there was no clinical justification to do so; and  
◦ Allegation 3: between on or about 28 December 2019 and on or about 7 August  
2020, he failed to notify the Board of a relevant event within seven days after  
becoming aware that a relevant event had occurred in breach of s 130 of the  
National Law.  
71. Having regard to Mr Burns’ admissions as to Allegations 1, 2 and 3 and the material in  
the joint Tribunal Book, we had no difficulty finding the factual elements of those three  
Allegations proven.  
72. As to Allegation 4, by signing the Agreed Statement, Mr Burns agreed that, as at the  
time of the hearing, he had an impairment, in that he had a physical or mental  
impairment, condition or disorder that detrimentally affects or is likely to detrimentally  
affect his capacity to practise as a nurse.  
73. At the hearing, it became apparent that there were three matters arising from Allegation  
4.  
74. The first was that Mr Burns had some difficulty understanding the purpose of making  
the finding that Allegation 4 was proven given that he had retired and had no intention  
of returning to practise in the profession. Mr Burns’ query about the utility of making the  
finding was understandable from that point of view.  
75. However, as we explained at the hearing, given the Board pressed Allegation 4 and  
sought a finding from the Tribunal, we were required to consider it on the merits. We  
explained that, because of the definition contained in the National Law, that  
consideration could be made on the hypothetical basis that we were assessing his  
capacity as if he were intending to return to practise as at the date of hearing.  
76. The second matter arose from the fact that, while Mr Burns agreed he had in the past  
had an impairment because he had an ankle injury and he abused Panadeine Forte (and  
committed the criminal offences) as a consequence, that injury had been resolved by  
successful surgery and so the reason he needed to use that medication had gone. Mr  
Burns explained that he sometimes used opioids to manage knee pain but only under  
prescription.  
77. In the end, we understood Mr Burns accepted the proposition that, a well-controlled  
disorder may nevertheless continue to be an operative disorder for some period until it  
can be said to have fully resolved.  
78. Third, Mr Burns disagreed with Dr Frei’s conclusion that he had an alcohol disorder at  
any relevant time. As we understood it, Mr Burns did not dispute the finding that he had  
abused alcohol in the past but he objected to it being considered in this proceeding and  
being referred to as an impairment.  
79. That was because he had admitted himself to hospital for treatment at times in the past  
when his alcohol use had become problematic and, when discharged from that  
treatment, he simply returned to work. Mr Burns said that, although his employer knew  
why he had taken leave, it was not reported to the Board and there was no concern about  
his capacity to practise. In those circumstances, he disagreed with his past alcohol use  
being taken into account in this proceeding at all.  
80. Even if we accepted that neither past employers nor the Board took an interest in or  
acted upon his past periods of alcoholism, that did not affect the assessment we were  
asked to make as at the hearing having regard to the material before us.  
81. That material confirmed that Mr Burns had required treatment for his excessive alcohol  
use in the past. The materials showed that:  
◦ Although he had been a teetotaller for around a number of years, he went overseas  
and started drinking again in September/October 2018. He had not stopped  
[14]  
drinking by mid-2019 and he was admitted to rehabilitation in July 2019;  
and  
◦ He had a relapse in around February 2020 which required a further admission to a  
rehabilitation hospital. According to a letter written by his treating practitioner, Mr  
Burns had a relapse around that time and it had worsened in late April. The letter  
[15]  
stated that Mr Burns had been drinking up to 17 standard drinks a day.  
82. When he attended the assessment with Dr Frei on 2 December 2019, Mr Burns reported  
that he was ‘currently actively drinking’ although he was abstinent for about four out of  
seven days. Mr Burns told Dr Frei that he drank a bottle of spirits on his drinking days,  
[16]  
the last of which was the day before he attended Dr Frei’s rooms.  
At the further  
review on 3 August 2021, Mr Burns stated that he was not aiming for abstinence but he  
considered his then controlled intake indicated he was in remission. At that time, Mr  
Burns was drinking two to three standard drinks on approximately three occasions on an  
average week.  
83. Dr Frei found that, as at August 2021, Mr Burns’ alcohol use disorder was in remission  
and, that taking into account the shorter period of remission (as compared to the opioid  
use disorder which was then in long term remission), it was stable at the low level of  
severity.  
84. We noted Dr Frei’s August 2021 recommendations that, should Mr Burns return to  
practise, he would require workplace, medical and biochemical monitoring with regular  
reports to the Board. He suggested that monitoring could be reviewed after 12 months.  
In those circumstances, we were satisfied that, should Mr Burns return to practise as at  
the hearing date, conditions on his registration would be likely to be appropriate to  
ensure he could practise safely, at least for the first 12 months.  
85. Having regard to Dr Frei’s findings and recommendations, we were comfortably satisfied  
that, as at the time of the hearing before us, Mr Burns had an opioid use disorder and an  
alcohol use disorder, both of which were in remission.  
86. Accordingly, we were also comfortably satisfied that, as at the hearing date, Mr Burns’  
two disorders fell within the definition of an impairment for the purposes of the  
definition in the National Law, in that they were likely to detrimentally affect Mr Burns if  
he was to return to practise.  
Characterisation of the proven conduct  
The National Law  
87. The National Law defines ‘professional misconduct’, in the context of a registered health  
practitioner, as including:  
(a) unprofessional conduct by the practitioner that amounts to conduct that is  
substantially below the standard reasonably expected of a registered health  
practitioner of an equivalent level of training or experience; and  
. . .  
(c) conduct of the practitioner, whether occurring in connection with the practice  
of the health practitioner’s profession or not, that is inconsistent with the  
practitioner being a fit and proper person to hold registration in the profession.  
88. Paragraph (a) of that definition concerns unprofessional conduct by the practitioner that  
amounts to conduct that is substantially below the standard reasonably expected of a  
registered health practitioner of an equivalent level of training or experience.  
89. Paragraph (c) concerns conduct which is inconsistent with the practitioner being a fit  
and proper person to hold registration in the profession. The concept of ‘fit and proper’  
is well known — it goes to matters of character, moral rectitude and capacity in the  
context of the actual work done.  
90. The Tribunal has power to make findings about conduct under section 196(1)(b) of the  
National Law.  
The Agreed Statement  
91. The Agreed Statement invited us to make findings that the conduct contained in  
Allegations 1, 2 and 3 amounted to professional misconduct. The parties had agreed  
that:  
◦ Allegation 1 amounted to professional misconduct under paragraphs (a) and (c) of  
the definition; and  
◦ Allegations 2 and 3 amounted to professional misconduct under paragraph (a) of  
the definition.  
Findings on characterisation  
92. When characterising proven conduct, it is appropriate to consider the relevant  
definitions as at the time the conduct was engaged in, rather than looking to later in time  
evidence about expressions of regret or insight or rehabilitation. It is an objective  
[17]  
assessment looking at the proven conduct in the light of any applicable standards.  
Preliminary comments  
93. We start by making some comments about Mr Burns’ substance and alcohol use  
disorders and how they were relevant to our decisions on characterising the conduct.  
94. We have proceeded on the basis that Mr Burns’ conduct as described in Allegations 1, 2  
and 3 was affected at that time by the disorders mentioned. We make plain that our  
decisions on characterisation (and in respect of determinations) were not intended to  
suggest the disorders themselves constituted the professional misconduct.  
95. Unfortunately, Mr Burns is not the first practitioner to have been unable or to have  
failed to take a substance use disorder seriously and seek more effective treatment.  
While the judgment of those practitioners is often affected by the disorder itself, they are  
also often better placed to seek and obtain help, as compared to others in the  
community.  
96. Even taking account of the disorders, over the relevant period, Mr Burns was clearly  
capable of planning and executing a sophisticated strategy over several months to make  
use of the stolen prescription booklets and patient details to obtain the medication. As  
noted earlier, the material indicates that over time he very deliberately varied the  
pharmacies he attended to avoid detection.  
97. Nurses, like all health professionals, have a responsibility to maintain their health and  
wellbeing so as to ensure they cannot harm or otherwise adversely affect their patients.  
In this case, we considered Mr Burns was, at relevant times, capable of assessing  
information and making decisions to facilitate the criminal conduct. In the same way as  
he had managed his alcohol disorder in the past, we consider Mr Burns ought to have  
been able to see he needed to seek professional support.  
Allegation 1  
98. We agreed that the behaviour described in Allegation 1 constituted professional  
misconduct under paragraphs (a) and (c) of the definition as it was:  
◦ Conduct that was substantially below the standard reasonably expected of a  
registered health practitioner of an equivalent level of training or experience; and  
◦ Conduct that was inconsistent with the practitioner being a fit and proper person  
to hold registration in the profession  
99. Dealing first with paragraph (a), it is apparent from the principles in the Code of  
Conduct and the Code of Ethics referred to earlier that a nurse who has been convicted  
of criminal offences does not meet the expectation that they not participate in unlawful  
behaviour and demonstrate professional values including honesty, trustworthiness and  
integrity.  
100. Given that Mr Burns stole prescription booklets from his workplace and made unlawful  
use of patients’ details in order to engage in the criminal conduct, it is apparent that the  
behaviour was closely connected with his practise as a nurse and risked bringing the  
reputation of the profession into disrepute. Mr Burns’ conduct was repeated and  
engaged in over a period of about 15 months. As a registered nurse, Mr Burns ought to  
have been well aware that his possession of Schedule 4 poisons was unlawful.  
101. We were readily satisfied that the behaviour which led to the criminal convictions was  
substantially below the standard reasonably expected of a registered health practitioner  
of an equivalent level of training or experience.  
102. As to paragraph (c) of the definition of professional misconduct, there can be no doubt  
that the criminal offending was inconsistent with the behaviour of a fit and proper  
person.  
103. Mr Burns’ proven conduct was of a most serious kind and represented a significant  
breach of the trust placed in him by his employer and his patients.  
104. At the hearing, Mr Burns said words to the effect that he thought referring to his conduct  
as ‘theft’ was a ‘bit harsh’. As we understood it, Mr Burns seemed to think no real harm  
was done to others and the cause of all the trouble was the ankle injury he had suffered  
many years before but which had been resolved through surgery.  
105. We were astonished by that attitude.  
106. We have already commented on the serious nature of Mr Burns actions. We add several  
other matters to our assessment.  
107. First, the theft of patients’ confidential details and the use of them to complete  
prescriptions and obtain Schedule 4 poisons could have had significant repercussions for  
those patients. As prescription records are held for many years and may be relied on in a  
range of settings, they were rendered inaccurate by Mr Burns’ actions. The patients’  
notes would have had no entry which bore any relationship to the prescriptions  
(especially those who had been discharged long before). The patients may have been  
faced with questions about their past use of Panadeine Forte or other opioids which they  
could have had difficulty answering. Noting the nature of the care they required at  
Y-PARC and the heavy reliance placed on past treatment and medications when treating  
mental health conditions, the fraudulent prescriptions might have led to unwanted  
questions as to their reliability and have impacted on future treatment.  
108. Second, the fraudulent prescriptions could have placed the relevant doctors in  
professional difficulty. Like the patients, reliance can be placed on doctors’ past  
prescribing history in respect of their professional performance and compliance with  
legal obligations. Doctors’ notes are relied on to provide an accurate history for a patient  
– as the relevant patients’ notes would have appeared to be inconsistent with the  
prescribing records, questions about their note taking and other professional skills  
might have been called into question.  
109. Third, not to put too fine a point on it, theft is theft.  
110. Mr Burns’ conduct was not the result of inadvertence or mistake. The circumstances of  
the charges, his careful choice of pharmacists over time and his fraudulent use of the  
prescribing booklets and the patients’ information show his actions were deliberate and  
executed in line with a sophisticated strategy.  
111. For those reasons we found Mr Burns’ proven behaviour as described in Allegation 1  
constituted professional misconduct under paragraphs (a) and (c) of the definition.  
Allegation 2  
112. We have commented above on the seriousness of Mr Burns’ conduct in respect to him  
accessing patients’ records. That conduct represented a particularly serious breach of Mr  
Burns’ ethical and legal obligations. Not only was there no clinical justification for Mr  
Burns accessing the records, that conduct was an essential element of his criminal  
conduct.  
113. As referred to earlier, under the Code of Conduct, Mr Burns was required to respect the  
confidentiality and privacy of people by seeking informed consent before disclosing  
information, and to access records only when professionally involved in the care of the  
person and authorised to do so.  
114. We were satisfied Mr Burns’ accessing and use of patient information represented a  
substantial departure from expected standards of a registered nurse with the same  
training and experience as Mr Burns.  
115. Accordingly, we agreed that the proven conduct described in Allegation 2 was behaviour  
which constituted professional misconduct under paragraph (a) of the definition in the  
National Law.  
Allegation 3  
116. We were satisfied that Mr Burns failure to notify the Board of the criminal charges and  
then the convictions as required by section 130 of the National Law constituted  
professional misconduct within paragraph (a) of the definition.  
117. The reporting obligations contained in section 130 are an essential feature of the  
regulatory scheme contained in the National Law. That obligation assists in ensuring  
that the relevant professional Board can take steps, where necessary, to protect the  
public and maintain professional standards. The regulatory process relies on honest and  
prompt reporting of criminal matters.  
118. It is not uncommon for a practitioner to rely on the fact that they were unaware of the  
obligation created by section 130. Mr Burns did not say he was unaware of the obligation  
and as indicated, he agreed that the conduct constituted professional misconduct. That  
agreement goes to his credit. As has been stated several times before, professional  
people who hold registration are expected to be aware of and comply with the range of  
obligations which come with the privilege of registration.  
119. We found Mr Burns’ repeated failure to comply with section 130 of the National Law in  
respect of the multiple charges and convictions amounted to a substantial departure  
from expected standards and agreed that the proven conduct described in Allegation 3  
was behaviour which constituted professional misconduct under paragraph (a) of the  
definition in the National Law.  
Determinations  
The Tribunal’s powers and their purpose  
120. Section 196(2) of the National Law sets out the determinations the Tribunal may make  
where professional misconduct or unprofessional conduct has been proven. They include  
cancellation of registration, suspension of registration and the imposition of conditions.  
121. The Tribunal’s primary role is to protect the public rather than to punish health  
practitioners who engage in professional misconduct or unprofessional conduct. Having  
said that, determinations may involve a degree of punishment for the purpose of general  
deterrence (to warn others in the profession against such misconduct) and specific  
[18]  
deterrence (to deter the individual in question from repeating the misconduct).  
122. It is well understood that:  
[19]  
◦ The purpose of the imposition of determinations is to protect the public;  
◦ Determinations are intended to maintain proper ethical and professional  
standards for the protection of the public and also for the protection of the nursing  
profession in the sense of maintaining stature and integrity in the eyes of the  
public;  
◦ Personal matters such as shame, personal ordeal, and financial difficulty are of  
little relevance save insofar as they contribute to the specific deterrence of the  
practitioner;  
◦ The likelihood of recidivism, or, put another way, an assessment of the ongoing  
risk posed by the practitioner, should be central to the imposition of a  
determination;  
◦ The degree to which the practitioner has acquired insight into his or her conduct is  
relevant to the assessment of the continuing risk posed by the practitioner;  
◦ Insight can include an understanding of the nature of the conduct, an acceptance  
that the conduct was wrong, an appreciation of why the practitioner engaged in  
that conduct, empathy with the consequences, and/or a willingness to take  
measures to identify risk factors and to do that which is necessary to avoid further  
transgressions; and  
◦ Any form of official censure is of consequence. A reprimand is a serious matter for  
a professional person and should not be considered a ‘slap on the wrist’.  
The parties’ agreed position  
123. The parties jointly invited the Tribunal to impose the following determinations pursuant  
to section 196(2) and section 196(4) of the National Law:  
◦ Mr Burns be reprimanded;  
◦ Mr Burns’ registration be cancelled; and  
◦ Mr Burns be prohibited from applying for registration for a period of three years.  
124. We adopted the Board’s submissions as to the appropriate way to approach an agreed  
position. That is, it is appropriate to have regard to such an agreement and not readily  
depart from it unless there are good reasons to do so. Of course, an agreement between  
the parties does not automatically determine the outcome. The Tribunal must reach  
appropriate findings and determinations after examining all of the circumstances,  
[20]  
including any agreed position and applying the relevant parts of the National Law.  
125. The Board’s written submissions contained a table of what may be regarded as  
comparable cases. We had regard to them when making our decisions.  
Reprimand  
126. We had no hesitation in agreeing that Mr Burns ought to be reprimanded for his  
professional misconduct.  
Cancellation of registration  
127. As set out earlier, an IAC suspended Mr Burns’ registration on 21 October 2019 and that  
decision remained in force as at the hearing date.  
128. Given Mr Burns had retired and had no intention of returning to work, he agreed with  
his registration being cancelled. In those circumstance, there was no utility in us  
considering suspension as an alternative determination.  
129. The Board noted that Mr Burns had been suffering from the chronic pain condition  
associated with his ankle injury since at least 2016. He had been prescribed Endone and  
Panadeine Forte and, when the prescribed doses of those medications did not allow him  
to manage the pain, he committed the criminal conduct. The Board also noted that Mr  
Burns made early admissions and he showed some remorse and insight at the time of  
the criminal sentencing. Mr Burns had an otherwise unblemished career record and lack  
of disciplinary history for the preceding around 40 years.  
130. Having regard to all of those matters, and the fact of his retirement, we did not consider  
that specific deterrence was the primary consideration for us when making our decisions  
on determinations.  
131. Having said that, as discussed earlier, we retained some residual concerns about Mr  
Burns’ appreciation of the nature and extent of his wrongdoing in the context of his  
professional responsibilities. We also held concerns about the degree of his own insight  
into his disorders, in particular in respect of alcohol abuse. The sheer quantity of alcohol  
consumed by him as late as July 2019 at a time when he was continuing to practise and  
was abusing Panadeine Forte was very worrying.  
132. We were satisfied that general deterrence called for Mr Burns’ registration to be  
cancelled.  
133. As discussed above, we were particularly troubled by Mr Burns’ theft and misuse of  
prescription booklets and patient’s confidential health information. Those aspects of his  
conduct went to the heart of the expectation that nurses will respect other practitioners,  
place patients at the centre of their practise and that they will make proper use of  
treatment tools, such as prescribing.  
134. We accept there was no suggestion that Mr Burns had caused harm to any patient and,  
in fact, the materials show his employer understood he had not practised as a nurse  
[21]  
while under the influence of substances.  
However, it is not difficult to imagine harm  
coming to a patient when being treated by a nurse who had ingested such large volumes  
of Schedule 4 poisons and alcohol. That risk is one basis for us ordering that Mr Burns’  
registration be cancelled. Other practitioners should be in no doubt that criminal  
conduct which is caused by substance abuse which may put patients at risk might well  
lead to the loss of registration, separate from any criminal penalties.  
135. Cancellation also informs the profession and the public that criminal conduct which  
involves a breach of standards and abuse of trust and which is engaged in while  
practising as a nurse, will not be tolerated. Our decision is intended to support the  
protection of the public and the upholding of the standards and reputation of the  
profession.  
Disqualification  
136. The parties agreed that a disqualification period of three years was appropriate.  
137. Again, while Mr Burns agreed with that outcome, he also made plain it was not strictly  
needed as he had no intention of applying to be re-registered. As stated to him at the  
hearing, it is always possible for a person to change their mind and so it was appropriate  
for us to consider making the determination.  
138. When considering the proposed period of disqualification, we took into account the fact  
that Mr Burns had been suspended for around two years and eight months by the time of  
the hearing.  
139. We decided that the proposed three year period was appropriate on the basis of the  
parties’ agreement and also as, when added to the period of suspension, it signalled to  
other practitioners that very serious consequences are likely to follow a nurse having  
been found to have:  
◦ Engaged in criminal conduct while practising as a nurse;  
◦ Stolen prescription booklets for the purpose of forging prescriptions for restricted  
medications for self-administration; and  
◦ Unjustifiably accessed patient records and used those to facilitate the criminal  
conduct.  
A Dea  
M Archibald PSM  
P Barry  
Senior Member and  
Presiding Member  
Health Practitioner  
Member  
Health Practitioner  
Member  
APPENDIX A  
NOTICE OF AMENDED ALLEGATIONS  
In the allegations, the following defined terms are used:  
Code of Conduct – Code of Conduct for Nurses (1 March 2018).  
Code of Ethics – The International Council of Nurses Code of Ethics for Nurses (2012).  
Crimes Act – Crimes Act 1958 (Vic).  
DPCS Act – Drugs, Poisons and Controlled Substances Act 1981 (Vic).  
National Law - Health Practitioner Regulation National Law, as adopted pursuant to s 4 of  
the Health Practitioner Regulation National Law (Victoria) Act 2009.  
Criminal offences  
1. Between 1 June 2018 and 25 September 2019, Mr Peter Burns engaged in:  
(a) professional misconduct within the meaning of paragraphs (a) and/or (b)  
and/or (c) of the definition of professional misconduct in s 5 of the National Law;  
and/or  
(b) unprofessional conduct within the meaning of the definition of unprofessional  
conduct in s 5 of the National Law,  
in that, on 30 July 2020, he pleaded guilty in the Magistrates’ Court of Victoria, sitting at  
Frankston, and was convicted of:  
(i) seven charges of theft, relating to misappropriating blank scripts belonging to  
other medical practitioners employed by Peninsula Health between 1 June 2018  
and 25 September 2019, contrary to s 74 of the Crimes Act;  
(ii) nine charges of making a false document, relating to the forging of 62  
prescriptions between 1 June 2018 and 25 September 2019, contrary to s 83A(1) of  
the Crimes Act; and  
(iii) nine charges of unauthorised possession of a schedule 4 poison, namely  
Panadeine Forte, between 1 June 2018 and 25 September 2019, contrary to s  
36B(2) of the DPSC Act.  
Particulars  
The particulars include, but are not limited to:  
1.1 Mr Burns was first registered as a nurse on 21 February 1979.  
1.2 From 1 July 2010 (when the National Law came into force), Mr Burns was registered with  
the Nursing and Midwifery Board of Australia (Board), registration number  
NMW0001392977, as a registered nurse (Division 1).  
1.3 At all material times, Mr Burns was a registered nurse under the National Law.  
1.4 At all material times, Mr Burns was practising as a nurse at Peninsula Mental Health  
Service (Peninsula Health) in the Youth Prevention and Recovery Care (Y-PARC) team.  
1.5 Between 1 June 2018 and 31 May 2019, Mr Burns stole seven blank prescription booklets  
belonging to Peninsula Health, which booklets were marked with the identifying information  
of the following doctors:  
(a) Dr A (one booklet);  
(b) Dr B (three booklets);  
(c) Dr C (one booklet);  
(d) Dr D (one booklet); and  
(e) Dr E (one booklet).  
1.6 Each of the doctors referred to in paragraph 1.5 were or are employed by Peninsula Health  
in various capacities.  
1.7 Between 1 June 20198 and 25 September 2019, Mr Burns fraudulently filled out a total of  
62 scripts from the stolen prescription booklets referred to in paragraph 1.5 (Fraudulent  
Prescriptions).  
1.8 The Fraudulent Prescriptions:  
(a) purported to be signed by the doctor from whom they were stolen;  
(b) were prescribed in the names of a number of current or former patients of  
Peninsula Health, whose personal information Mr Burns obtained by accessing  
their clinical files during his employment; and  
(c) each prescribed twenty Panadeine Forte tablets.  
1.9 Mr Burns presented the Fraudulent Prescriptions at:  
(a) Pharmacy 1 on nine occasions between 4 October 2018 and 1 February 2019;  
(b) Pharmacy 2 on six occasions between 24 September 2018 and 25 September  
2019;  
(c) Pharmacy 3 on six occasions between 9 December 2018 and 17 May 2019;  
(d) Pharmacy 4 on one occasion on 15 May 2019;  
(e) Pharmacy 5 Pharmacy 3 on six occasions between 8 October 2018 and 18  
January 2019;  
(f) Pharmacy 6 on 13 occasions between 2 October 2018 and 20 May 2019;  
(g) Pharmacy 7 on ten occasions between 1 June 2018 and 17 May 2019;  
(h) Pharmacy 8 on four occasions between 9 November 2018 and 22 February  
2019; and  
(i) Pharmacy 9 on seven occasions between 12 March 2019 and 7 May 2019.  
1.10 On each of the occasions identified at paragraphs 1.9(a) - 1.9(i), Mr Burns obtained  
twenty Panadeine Forte tablets for his personal use.  
1.11 Under s 72(1) of the Crimes Act, a person steals if they dishonestly appropriate property  
belonging to another with the intention of permanently depriving the other of it.  
1.12 Under s 74 of the Crimes Act, a person found guilty of theft is guilty of an indictable  
offence and liable to level 5 imprisonment (10 years maximum).  
1.13 Under s 83A(1) of the Crimes Act, a person must not make a false document with the  
intention that he or she, or another person, shall use it to induce another person to accept it as  
genuine, and by reason of so accepting it to do or not to do some act to that other person’s, or  
to another person’s prejudice.  
1.14 A person who is found guilty of an offence under s 83A(1) is liable to level 5 imprisonment  
(10 years maximum).  
1.15 Under s 36B(2) of the DPCS Act, a person must not possess a Schedule 4 poison unless  
they are authorised or licensed to do so.  
1.16 Panadeine Forte is a medication that contains paracetamol 500 mg and codeine 30 mg  
and is a Schedule 4 poison. Mr Burns was not authorised or licensed to possess Panadeine  
Forte.  
1.17 A person who is found guilty of an offence under s 36B(2) of the DPSC Act is liable to a  
penalty of 10 penalty units.  
1.18 On 30 July 2020, Mr Burns pleaded guilty in the Magistrates Court of Victoria, sitting at  
Frankston, to:  
(a) seven charges under s 74 of the Crimes Act (for the conduct described at  
paragraph 1.5);  
(b) nine charges under s 83A(1) of the Crimes Act (for the conduct described at  
paragraph 1.7-1.9); and  
(c) nine charges under s 36B(2) of the DPCS Act (for the conduct described at  
paragraph 1.10).  
1.19 Mr Burns was convicted of each of the charges at paragraph 1.19 and fined $3,000 as part  
of an aggregate order.  
1.20 Between 1 June 2018 and 25 September 2019, the Code of Conduct relevantly provided  
that nurses:  
(a) practice honestly and ethically and should not engage in unlawful behaviour as  
it may affect their practice and/or damage the reputation of the profession.  
Specifically, amongst other things, nurses must:  
(i) comply with relevant poisons legislation, authorisation, local policy and own  
scope of practice, including to safely use, administer, obtain, possess, sell, supply  
and store medications and other therapeutic products (principle 1.2(b)); and  
(ii) not participate in unlawful behaviour and understand that unlawful behaviour  
may be viewed as unprofessional conduct or professional misconduct and have  
implications for their registration (principle 1.2(c)).  
1.21 The Code of Ethics relevantly provides that nurses:  
(a) demonstrate professional values such as respectfulness, responsiveness,  
compassion, trustworthiness and integrity (principle 1);  
(b) at all times maintain standards of personal conduct which reflect well on the  
profession and enhance its image and public confidence (principle 2).  
1.22 Mr Burns’ conduct was in breach of principle 1.2 of the Code of Conduct, and principles 1  
and 2 of the Code of Ethics.  
Accessing confidential health information without clinical justification  
2. Between 2 March 2019 and 25 September 2019, Mr Peter Burns engaged in:  
(a) professional misconduct within the meaning of paragraphs (a) and/or (b)  
and/or (c) of the definition of professional misconduct in s 5 of the National Law;  
and/or  
(b) unprofessional conduct within the meaning of the definition of unprofessional  
conduct in s 5 of the National Law,  
in that he accessed confidential health information belonging to persons other than himself, in  
circumstances where there was no clinical justification to do so.  
Particulars  
The particulars include, but are not limited to:  
2.1 The Board refers to and repeats paragraphs 1.1 to 1.4.  
2.2 On 2 March 2019 and 25 September 2019, in the course of his employment, Mr Burns  
logged in to Peninsula Health’s digital records system and accessed Patient F’s confidential  
health information.  
2.3 Mr Burns had no clinical or legal justification to access Patient F’s records on 2 March  
2019 or 25 September 2019. Notwithstanding this, Mr Burns accessed Patient F’s confidential  
health information in order to obtain his personal details including his name, address and  
Medicare number to populate 37 of the Fraudulent Prescriptions.  
2.4 On 4 March 2019, in the course of his employment, Mr Burns logged in to Peninsula  
Health’s digital records system and accessed Patient G’s confidential health information.  
2.5 Mr Burns had no clinical or legal justification to access Patient G’s records on 4 March  
2019. Notwithstanding this, Mr Burns accessed Patient G’s confidential health information in  
order to obtain his personal details including his name, address and Medicare number, which  
Mr Burns used to populate 1 of the Fraudulent Prescriptions.  
2.6 The Code of Conduct relevantly provides that nurses:  
(a) practice honestly and ethically and should not engage in unlawful behaviour as  
it may affect their practice and/or damage the reputation of the profession.  
Specifically, amongst other things, nurses must:  
(i) respect the nurse-person professional relationship by not taking possessions  
and/or property that belong to the person and/or their family (principle 1.2(a));  
and  
(ii) not participate in unlawful behaviour and understand that unlawful behaviour  
may be viewed as unprofessional conduct or professional misconduct and have  
implications for their registration (principle 1.2(c)); and  
(b) have ethical and legal obligations to protect the privacy of people. People have a  
right to expect that nurses will hold information about them in confidence, unless  
the release of information is needed by law, legally justifiable under public interest  
considerations or is required to facilitate emergency care. Specifically, amongst  
other things, nurses must:  
(i) respect the confidentiality and privacy of people by seeking informed consent  
before disclosing information, including formally documenting such consent where  
possible (principle 3.5(a));  
(ii) access records only when professionally involved in the care of the person and  
authorised to do so (principle 3.5(d)); and  
(iii) not transmit, share, reproduce or post any person’s information or images,  
even if the person is not directly named or identified, without having first gained  
written and informed consent (principle 3.5(e)).  
2.7 The Code of Ethics relevantly provides that nurses:  
(a) demonstrate professional values such as respectfulness, responsiveness,  
compassion, trustworthiness and integrity (principle 1);  
(b) hold in confidence personal information and use judgement in sharing this  
information (principle 1); and  
(c) at all times maintain standards of personal conduct which reflect well on the  
profession and enhance its image and public confidence (principle 2).  
2.8 Mr Burns’ conduct was in breach of principles 1.2 and 3.5 of the Code of Conduct, and  
principles 1 and 2 of the Code of Ethics.  
Failure to comply with s 130 of the National Law  
3. Between on or about 28 December 2019 and on or about 7 August 2020, Mr Burns  
engaged in:  
(a) professional misconduct within the meaning of paragraphs (a) and/or (b)  
and/or (c) of the definition of professional misconduct in s 5 of the National Law;  
and/or  
(b) unprofessional conduct within the meaning of the definition of unprofessional  
conduct in s 5 of the National Law, in that he failed to notify the Board of a relevant  
event within seven days after becoming aware that a relevant event had occurred in  
breach of s 130 of the National Law.  
Particulars  
The particulars include, but are not limited to:  
3.1 The Board refers to and repeats paragraphs 1.1 to 1.4.  
3.2 Relevantly, under s 130 of the National Law, a registered health practitioner must, within  
seven days after becoming aware that a relevant event has occurred in relation to the  
practitioner, give the Board written notice of the event.  
3.3 Relevantly, a relevant event includes where the:  
(a) practitioner is charged, whether in a participating jurisdiction or elsewhere,  
with an offence punishable by 12 months imprisonment or more (s 130(3)(a)(i));  
and  
(b) practitioner is convicted of, or the subject of, a finding of guilt for an offence,  
whether in a participating jurisdiction or elsewhere, punishable by imprisonment  
(s 130(3)(a)(ii)).  
3.4 On 20 December 2019, Mr Burns was charged with multiple offences including:  
(a) Theft (s 74 of the Crimes Act);  
(b) Make false document (s 83A(1) of the Crimes Act); and  
(c) Possess a Schedule 4 poisons (s 36B(2) of the DPCS Act).  
3.5 The offences of Theft and Make false document are punishable by 12 months  
imprisonment or more.  
3.6 On 30 July 2020, Ms Burns was found guilty and convicted of 25 charges, which are set  
out at paragraph 1.18. Sixteen of those charges (which are referred to at 1.18(a) and 1.18(b))  
were offences punishable by 12 months imprisonment or more.  
3.7 Mr Burns failed to notify the Board within seven days of:  
(a) being charged by Victoria Police for offences punishable by 12 months  
imprisonment or more, on 20 December 2019; and  
(b) being found guilty and convicted of offences punishable by imprisonment on  
30 July 2020.  
3.8 Principle 1.2(c) of the Code of Conduct relevantly provides that nurses must practice  
honestly and ethically and should not engage in unlawful behaviour as it may affect their  
practice and/or damage the reputation of the profession. Specifically, nurses must, amongst  
other things, not participate in unlawful behaviour and understand that unlawful behaviour  
may be viewed as unprofessional conduct or professional misconduct and have implications  
for their registration.  
3.9 Principle 1.2 of the Code of Ethics relevantly provides that nurses must demonstrate  
professional values such as respectfulness, responsiveness, compassion, trustworthiness and  
integrity.  
3.10 Mr Burns was in breach of principle 1.2 of the Code of Conduct and principle 1 of the  
Code of Ethics.  
Health impairment  
4. That Mr Burns has an impairment, as defined in s 5 of the National Law, in that he has a  
physical or mental impairment, condition or disorder that detrimentally affects or is  
likely to detrimentally affect his capacity to practise as a nurse.  
Particulars  
The particulars include, but are not limited to:  
4.1 The Board refers to and repeats paragraphs 1.1 to 1.4.  
4.2 On 2 December 2019, Mr Burns underwent a health assessment with Dr Matthew Frei,  
addiction medicine specialist.  
4.3 Dr Frei provided a report dated 12 February 2020 in which he advised, amongst other  
things, that:  
(a) Mr Burns had a partially remitted opioid use disorder (codeine) and a moderate  
alcohol use disorder (active);  
(b) Mr Burns was early in his recovery from his opioid use disorder, which was  
characterised by poor judgment and some loss of control;  
(c) if Mr Burns return to practice as a nurse, he should be subject to urine and/or  
hair testing conditions as well as supervision requirements.  
4.4 On 30 July 2020, Mr Burns’ legal representative made submissions in the Magistrates  
Court of Victoria, sitting at Frankston that Mr Burns had developed an intolerance and  
addiction to Panadeine Forte medication.  
[1]  
Contrary to section 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).  
[2]  
See notes of Mr Burns’ interview with Peninsula Health, Tribunal Book, pages 309 to 314.  
[3]  
See diary note of a telephone conversation between a representative of Peninsula Health  
and AHPRA, Tribunal Book, pages 503 to 504.  
[4]  
Tribunal Book, pages 113 to 115.  
[5]  
[6]  
[7]  
[8]  
[9]  
Tribunal Book, page 514.  
Tribunal Book, pages 204 to 205.  
Section 326B(2).  
Section 72(1)(a).  
Section 74.  
[10]  
[11]  
[12]  
[13]  
[14]  
[15]  
[16]  
[17]  
Section 83A(1).  
Principles 1.2(a), (b) and (c) and 3.5(a), (d) and (e).  
Principles 1 and 2.  
Briginshaw v Briginshaw [1938] HCA 34.  
Referral letter dated 6 August 2019, Tribunal Book, page 471.  
Referral letter dated 16 April 2020, Tribunal Book, page 463.  
Report dated 12 February 2020, Tribunal Book, page 561.  
See Medical Board of Australia v Arulanandarajah [2021] VCAT 85, [30]–[53]; and  
Nursing and Midwifery Board of Australia v Harris [2021] VCAT 496, [35]–[46].  
[18]  
Pharmacy Board of Australia v Lee [2017] VCAT 87 [61].  
[19]  
As summarised in Medical Board of Australia and Pharmacy Board of Australia v Lee  
[2019] VCAT 311 [20].  
[20]  
See for example, Medical Board of Australia v Lisner [2019] VCAT 1486 [24].  
[21]  
As confirmed in a diary note of a telephone conversation between a representative of  
Peninsula Health and AHPRA, Tribunal Book, pages 503 to 504.  


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