Armstrong v Pharmacy Council of New South Wales

Armstrong v Pharmacy Council of New South Wales - [2022] NSWCATOD 155 - NSWCATOD 2022 case summary — Zoe

The Decision

In the Decision the Council noted a number of subsidiary questions required by s 410 of the National Law to be addressed and identified that if the delegates concluded that it was appropriate to take action under s 150 in respect of the Applicant for the protection of the health or safety of the public, or otherwise in the public interest, then the delegates would consider whether there are conditions that could be imposed on the practitioner's registration that would sufficiently mitigate any identified risk to the health or safety of the public.
I extract below various headings and paragraphs of the Decision which followed and appear to be relevant to the current application: If there are previous complaints concerning the practitioner (s.41O of the National Law (NSW) are they reasonably considered to be relevant to the current matter? If so, how? [13] We note the complaint from a staff member and on another occasion a member of the general public who both claimed the Applicant acting in either an aggressive manner or harassing and intimidating the complainant, behaviours which would be considered unprofessional. These have relevance to this complaint in that the PRU claimed that the Applicant obstructed and hindered the work of the regulator which, too, is unprofessional. In her written statement, the Applicant denied acting unprofessionally with the PRU staff stating she always conducts herself in a professional manner, including at the time of their attendance at the Centre. Given her history with the Council regarding her acting unprofessionally, we came to the view that the PRU's statement suggests ongoing unprofessional behaviour. Her response added to our concern regarding the Applicant's candour. Does the practitioner have the necessary standard of practise, knowledge an understanding so as not to pose a risk to the health she has been a pharmacy proprietor or safety of the public? [15] We considered this from the following perspectives: i. Proprietorial oversight ii. Regulation/Clinical Knowledge iii. Opioid treatment Program Proprietorial Oversight [18] … The numerous examples of non-compliant prescriptions having been dispensed is evidence that her staff were not following her policies and presumably were unaware of the legislative requirements relating to the dispensing of S4D and S8 medications. Had (the Applicant) been exercising proprietorial oversight she would have picked up these deficiencies (in respect of the Crows Nest Pharmacy).
The delegates then made specific reference to the Board Guidelines for proprietors and set out relevant guidelines at paragraph [20] and then proceeded as follows: [21] It was concerning to us that Ms Armstrong stated that having vetted applicants thoroughly, checked their CVs and interviewed them she satisfied herself that they were good pharmacists and there was no need to be checking them minutely. There are examples throughout this report where staff have not acted in accordance with regulations/protocols which indicate precisely why she does need to assure herself of their on-going compliance. [22] During the hearing Ms Armstrong volunteered to send us copies of the drug register kept at her Victorian pharmacy as evidence that this pharmacy is compliant and of her proprietorial oversight. Despite our advising that we had no jurisdiction in Victoria her support person suggested that as any findings against her would apply nationally, she would like to send it. On perusal of the pages sent we note that Victorian regulations require that the full address be entered for each entry. Several entries had the suburb with no street address so are in breach of regulations. This is further evidence of Ms Armstrong's lack of proprietorial oversight. Regulation/Clinical Knowledge [23] We asked Ms Armstrong about the treatment program at the Detox Centre, and she advised that it was mainly to do with alcohol and the standard protocol for it is diazepam. We asked her did she need a licence for that. She responded that the prescription is prescribed, and she likened it to home detox where the patient takes the diazepam home and there is no supervision, but with the centre giving an extra layer of buffer by nurses being aware of the schedule. She said the medication is locked away in the safe and the nurses administer in accordance with the prescriber's instructions. This protocol is used in these types of facilities, she said, and Ms Armstrong confirmed the same process occurred in her Centre. … [25] We referred Ms Armstrong back to our question as to whether the facility needed a licence to hold the drugs and then she advised that the clients hold their own medications, and they administer them to themselves with a witness observing. She added that they were not medicating or dosing them. This is an example where her response was at variance from what she had told us earlier and her candour was again in question. Ms Armstrong, as a pharmacist, has a licence to hold scheduled medications but only in an approved facility. She repeatedly told us she was only the administration manager and did not see herself as a pharmacist there. We reminded her that she is always a pharmacist whilst registered. [26] We referred Ms Armstrong to Appendix E of the PRU report which was a prescription that Ms Armstrong had faxed from the Centre to the Pharmacy for dispensing. The email said it was to be collected. We asked her if she could comment on the script. She replied she was very confident in her nurse practitioner's ability, but she wanted to refer to the notes. We were concerned that she, as a pharmacist, emailing a prescription to her own pharmacy ought to have picked up the issues that made it invalid and had them corrected before emailing it. In turn her staff, did not pick them up and dispensed it. We pressed Ms Armstrong on what issues she saw with the prescription, but she was unable or unwilling to state the various compliance breaches. [27] We referred Ms Armstrong to the copy of the prescription for 150 Flunitrazepam from an interstate prescriber which one of her pharmacists had dispensed … [28] We have a number of concerns about this response. It was clear she had not applied a clinical overlay to the prescription, in that flunitrazepam is a highly addictive medication which is only recommended for very short-term treatment. The regulations state that one must not dispense such a prescription if the quantity and purpose does not meet therapeutic standards. Clearly 150 tablets or 5 months' supply does not. Whilst Ms Armstrong did not mention a number of red flags, including the potential for diversion of such a large quantity, we were very concerned that in not dispensing the medication, she had not mitigated the risk either of dependence or diversion when she said she would tell the patient to go elsewhere, despite her recognising and stating this was a classic exam question, implying that pharmacists ought to be able to recognise the issues. Opioid Treatment Program (OTP) [29] Ms Armstrong advised that the (Crows Nest) Pharmacy was an approved OTP dosing point, but the detox centre is not. We asked her whether the patients from the centre would come into the Pharmacy for supervised dosing and she said they did not, stating that if the doctor ordered takeaways as long as the very first dose was supervised then all subsequent scripts with take-aways authorised did not have to have any supervised doses. We advised her that this was in direct contravention of the NSW Opioid Treatment Program Community Pharmacy Dosing Point Protocol. She said she had not been instructed this by Nick (the nurse practitioner) who she said was an expert in the field. If he had told her she would have ensured compliance. [30] We referred Ms Armstrong to the prescription for Suboxone in appendix E. Apart from its being invalidly written there were two further issues: i. The initial dose was not dosed at the approved dosing point, and ii. If it were supervised at the Detox Centre, it was not an approved dosing point. … [32] Ms Armstrong was in clear breach of the Board's requirements with respect to proprietorial oversight which states as above:

having an awareness and understanding of the range of foods sold and services provided at the pharmacy, including non-traditional and novel goods and services, and their associated liabilities [33] She was also in breach of the Ministry of Health's protocol. Does the practitioner's practice pose a risk to the health or safety of the public? [34] We formed the view that Ms Armstrong's practice does pose a risk to the health and safety of the public. Ms Armstrong has owned a number of pharmacies but not practised as a community pharmacist herself for some time and this was clear, given her very limited knowledge of the regulations pertaining to the practice of pharmacy. [35] She has similarly very limited understanding of the Pharmacy Board's guideline for proprietor pharmacists, and it was obvious that she believed that having policies and procedures in place and what she believed were good staff was all that was necessary to fulfill her obligations in this regard. [36] Ms Armstrong had limited knowledge of what is required of herself and the pharmacists operating an approved dosing point for the Opioid Treatment Program. We were concerned when having asked her where she would go to find out the requirements, she mentioned, her colleagues, the Guild, PSA but made no mention of the PRU or the published dosing point protocol for community pharmacists. [37] We were concerned that Ms Armstrong was unaware that as per the NSW Opioid Treatment Program Community Pharmacy Dosing Point Protocol the quantity of an OTP prescription can be expressed as a date range. We could not see how Ms Armstrong could ensure compliance without this basic knowledge. [38] Her lack of knowledge and awareness across a broad range of functions relevant to the practice of pharmacy and her misguided belief that she had no need to check up on her pharmacists has meant that a number of breaches by her staff, and therefore herself as a proprietor have occurred which posed a risk to the health and safety of the public. It was particularly concerning that neither her staff, nor she, herself having had time for reflection considered the fact the 150 flunitrazepam tablets may well have made their way onto the illicit drug market and caused significant harm to the health and safety of the public. [39] Ms Armstrong's lack of candour throughout the interview and her lack on insight caused us considerable concern. She did not give us confidence that she understands the obligations and responsibilities of a proprietor pharmacist. She lacks knowledge of the regulations pertaining to the practice of pharmacy to be able to assess whether her pharmacists are compliant or not and the examples of her lack of candour raised questions regarding her integrity. Are there conditions that could be imposed on the practitioner's registration that would sufficiently mitigate any identified risks to the health or safety of the public? [40] We are not convinced that Ms Armstrong's knowledge is at a level commensurate with being able to safely own and operate a pharmacy. We carefully considered what might address her significant shortfalls in skill and knowledge and determined the conditions we have imposed will be sufficient to mitigate the risks which have been identified.

[3]

Ground 1 - Denial of Procedural Fairness

It was submitted on behalf of the Applicant that she was denied procedural fairness at the s 150 hearing and, as developed in oral submissions, that there is established a case of an apprehension of bias on the part of the delegates of the Council by reason of the manner in which the hearing was conducted.
As to the denial of procedural fairness relied upon, it was based essentially on the contention that the Council was obliged to expressly put to the Applicant during the hearing the delegates' reliance on her history and compliance with her obligations, in particular the statement at part of paragraph [13] of the reasons (quoted above) namely, "Given her history with the Council regarding her acting unprofessionally, we came to the view that the PRU's statement suggests ongoing unprofessional behaviour". In addition, it is said that there should have been put to the Applicant expressly the sentence from paragraph [11] of the reasons which reads "We do note that the inspection of the facility was on 8 April 2022 and Ms Armstrong had said it is still operating".
Counsel for the Applicant accepted that the history of these complaints was before the Council and it included (which, as is clear from Exhibit R1) quite an extensive history of prior conduct relevant to the delegates' consideration.
The Tribunal was then taken to various portions of the transcript in aid of the submission of an apprehension of bias.
It is also clear that there was an issue before the Council at the time as to whether, the Detox centre was still operating, and questions of ownership.
It is of course not necessary to decide whether these arguments will ultimately succeed but in my view on the materials currently available these grounds have very limited prospects of success and do not add weight in favour of a stay. The delegates were required by s 410 of the National Law to consider the issue. I have also come to my view taking into account the fact that the issues referred to at paragraph [23] were live issues in the hearing.
I do not think that from the transcript relied upon by Counsel that it should be concluded that a "fair-minded lay observer might reasonably apprehend" that the delegates might not bring an impartial and unprejudiced mind to the issues under consideration (Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [83] per Gaudron J).

[4]

Ground 2 - Conditions Requiring Appellant's Consent

The Applicant argues that Conditions 2(a) and 3(a) are punitive and not protective and the Applicant as practitioner cannot be compelled to consent to an order from the Secretary of Health pursuant to the Poisons and Therapeutic Goods Regulation 2008.
The Applicant contends that the Secretary has powers under that legislation to restrict possession or supply under s 18AA under the Poisons and Therapeutic Goods Act 1966 and has not done so and even if the Respondent decides to change the conditions in the future, or the matter is overturned on appeal, the Respondent has no control over whether the PRU will also remove this restriction.
It is further contended that the Respondent does not have power to impose conditions that would operate beyond the jurisdiction of New South Wales and the conditions can only be limited to practise within New South Wales and should be recorded on the national register accordingly.
Section 18AA(3)(a) of the Poisons and Therapeutic Goods Act 1966 enables the Secretary to restrict possession or supply of relevant drugs and provides as follows: (3) Such an order may be made for any one or more of the following reasons: (a) the person has requested or agreed in writing to the making of the order.
The issue then is whether the Council has the power to impose a condition on the registration which puts in the hands of another agency or person the decision as to whether to reinstate the entitlement to the possession of the relevant drugs after the pharmacist has agreed, in compliance with the condition, to restrict such possession.
Neither Counsel were able to point to a power on the part of the Secretary to simply reinstate the authority made if requested to do so. The Respondent pointed to Regulation 170 of the Poisons and Therapeutic Goods Regulations 2008 but that Regulation entitles the Secretary to determine whether the person seeking to have the restriction lifted is a fit and proper person.
The Respondent also relied on the decision in Ghosh v Medical Council of NSW [2020] NSWCA 122 where it was held that: A condition is imposed on and attaches to the practitioner's registration. Such a condition reduces the freedom of action that the registration would otherwise confer. The only limitation on the types of condition that may be imposed is that the condition must relate to the practitioner's practising the profession. Thus a condition that bore no relation to the practice of medicine would be outside the scope of s 150(1) per Brereton JA at [39].
In my view, this analysis by the Court does not address the question of the lawfulness of a condition which may effectively remove from the Council the ability to remove a condition.
In respect of the application of the conditions outside of New South Wales the Respondent refers to and relies upon ss 7 and 8 of the National Law.
I am not convinced that in the context of a national scheme the conditions need to be limited in the manner contended for by the Applicant and I will afford little weight to that argument.
Nonetheless, in my view, it is certainly arguable that the Council does not have the power to impose a condition of the kind found in 2(a) and 3(a) of the Conditions and I will afford weight to that argument in deciding the question of a stay in respect of these Conditions.

[5]

Ground 3 - Unreasonableness

Having set out in the written submissions the approach to legal unreasonableness the Applicant contends as follows: 1. firstly, the reasons in the decision fail to set out what the actual risk to the safety and health of the public is; 2. secondly, the reasons failed to find the actual risk, whatever this may amount to, is unacceptable without the imposition of conditions or suspension; 3. thirdly, the reasons failed to provide any cogent basis as to why the Decision would be sufficient to mitigate the unacceptable risk.
It is then contended that the reasons at paragraph [40], concerning the Applicant's alleged lack of knowledge to "own and operate a pharmacy" did not support the conditions imposed to mitigate the risks. It is argued that not one single condition imposed by the Respondent would prevent the Applicant from owning or operating a pharmacy now or in the future and the Respondent's state of satisfaction was invalidly formed by not proceeding reasonably and undertaking the statutory task it was required to perform.
The Applicant's submissions do not recognise that the concern was not simply owning and operating a pharmacy, but doing so "safely".
In assessing this ground, I have regard, first, to the conclusions reached by the Council in respect of the Applicant's shortcomings in proprietorial oversight, lack of knowledge of regulation and clinical practise and of an Opioid Treatment Program as outlined in the extracts of the Decision quoted above.
The risks identified by the Council appear to me to be as stated at paragraphs [18], [21] and [22], [25] to [28] and [29] to [31] of the Decision quoted above to relate to an absence of knowledge and oversight by the Applicant in respect of the Crows Nest pharmacy and Detox facility in respect of each she appeared to have relinquished her ownership.
The Council formed the view that the Applicant's practice "does pose a risk to the health and safety of the public" (at Decision [34]), that the Applicant had very limited understanding of the Pharmacy Board's guideline for proprietor pharmacists (at Decision [35]). The Applicant had limited knowledge of what is required of herself and the pharmacist operating an approved dosing point for an Opioid Treatment Program (Decision at [36]). The Council appears to have had regard for her lack of knowledge and awareness across a broad range of functions relevant to "the practise of pharmacy" and her misguided belief that she had no need to check up on her pharmacist in particular in relation to the question of a significant quantity of highly addictive drugs (flunitrazepam) which may well have made their way onto the illicit drug market and cause significant harm to the health and safety of the public (Decision at [38]). The Council did not have the confidence that the Applicant understood the obligations and responsibilities of a proprietor pharmacist (Decision at [39]) and were not convinced that her knowledge was at a level commensurate with being able to safely own and operate a pharmacy (Decision at [40]).
As is set out above, the delegates then pointed to the lack of knowledge and awareness across a range of functions relevant to the practise of pharmacy and her misguided belief that she had no need to check up on her pharmacists that meant that "a number of breaches by her staff, and therefore herself as a proprietor have occurred which posed a risk to the health and safety of the public" (and reference is then made to a particular instance in respect of which the Applicant had not conceded that the drugs may have made their way onto the illicit drug market and caused significant harm to the health and safety of the public).
The delegates had earlier identified the number of breaches referred to which had occurred in the pharmacy and facility whilst under her control.
The Council's assessment of the risk expressed in general terms does not appear to address the actual risk to the health and safety of the public. The reasons also do not in precise terms identify why it was necessary to act under what is in effect an emergency power in s 150. There is no imminent risk identified.

[6]

Conditions

The delegates than formulated the conditions designed to be sufficient they said to mitigate the risks which had been identified.
The conditions considered to mitigate the risks must be assessed by reference to the concerns identified about the absence and awareness of the requisite knowledge of the Applicant. On one view, the conditions will have the effect of removing the Applicant from having oversight of, and from possessing, supplying, manufacturing or dispensing of the drugs of addiction in Schedule 8 and Schedule 4 Appendix D.
There was also a challenge made to Condition 1 as it involved imposition of a condition that the Applicant was not allowed to work as a pharmacist in charge, "being an uncertain term", undefined in the National Law, in circumstances where the Respondent acknowledges that the Applicant does not work and has not worked as a community pharmacist for some time. It was argued that it is illogical for the imposition of a condition to restrict an activity which the Applicant was not even carrying out to "mitigate" a perceived risk that was said to exist.
Combined with the Council's concern about the operation of the Detox centre and the manner in which drugs were stored or administered, it appears to me that the conditions could not be said to be within the category of legal unreasonableness if the pharmacy and facility were still under the supervision of the Applicant, which appears not to be the case. Condition 1 appears to be directed at not being in charge of a pharmacy because of the absence of knowledge identified in the paragraphs I have referred to above. Conditions 2 and 3 stem from non-compliance with the requirements in respect of Schedule 8 and Schedule 4 Appendix D drugs in respect of the Crows Nest Pharmacy and also in respect of the Detox centre no longer under the Applicant's control (on the evidence in these proceedings).
In addition, the question of whether the Council validly undertook the statutory task it was required to perform by reference to the nature of the power under s 150, being a power to deal with urgent or emergency situations as opposed to acting under complaint, in circumstances where the Applicant was at the time not practising as a pharmacist in New South Wales, and does not work, and has not worked, as a community pharmacist for some time and had claimed to have disposed of her interest in the Detox facility must be assessed by reference to its unreasonableness.
Arguably, there was no immediate or serious risk identified requiring action by the Council pursuant to the specific powers under s 150.
In the circumstances it appears to me to be reasonably arguable that the Council did not approach its task with an appreciation of the need that the s 150 power was an emergency power and to that extent its Decision is infected with unreasonableness. There is also an arguable case that the conditions which did not address any identified imminent risk were "irrational, illogical, and not based on findings or inferences of fact supported by logical grounds" in favour of the Applicant (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145] per Gummow J). It is arguable that there is involved an illogical or irrational process of reasoning (Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611 at [119]).
Taking into account all the matters outlined above, I regard these as reasonable arguments in respect of a point of law in the exercise of the powers under s 150 supportive of a stay.

[7]

Ground 4 - Performance Assessment

In its Decision (at [42]) the Council expressly referred the matter for performance assessment subject to the consultation provisions of s 150E of the National Law and then imposed the condition that the Applicant was to complete a performance assessment by a performance assessor appointed by the Council and in that regard the practitioner is to comply with any instructions provided by the Council in relation to the performance assessment.
The Applicant challenges this condition in reliance of s 154A of the National Law. The Applicant submits that the disjunctive in s 154A prohibits the course adopted if either the matter raises a significant issue of public health or safety or is a matter which raises a prima facie case of professional misconduct or unsatisfactory professional conduct.
It is then submitted that by the imposition of Condition 4 the Respondent accepted that the Applicant's conduct is below the threshold set out in s 154A, but nevertheless proceeded to impose stringent conditions on the Applicant's registration. It is further submitted that the Respondent directed the National Board, essentially Instanter, to record this condition on the Applicant's registration, prior to seeking the agreement from the HCCC. The Respondent had directed the National Board to record this condition which in accordance with s 150(5) of the National Law had no effect.
Section 150(5) provides that without limiting the conditions that may be imposed under subsection (1)(b) a council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.
Subsequent to the imposition of Condition 4 the HCCC agreed with the imposition of the condition as is set out in the email of 19 October 2022 from the HCCC (Exhibit R2).
Also, s 150E relevantly provides as follows: (1) If the Commission agrees with the proposed imposition by a Council under section 150 of a condition on a registered health practitioner's registration requiring the practitioner to take part in a performance assessment, the matter giving rise to the proposal-- (a) must be dealt with by way of a performance assessment; and (b) may, if the Council and the Commission agree, also be dealt with by the Commission as a complaint against the practitioner. (2) If the Commission does not agree with the imposition of the condition, the matter must be dealt with by the Commission as a complaint against the registered health practitioner. … (4) If a matter is to be dealt with under this section by way of a performance assessment, it may be so dealt with despite anything to the contrary in section 154A.
In the circumstances it appears to me that there is a reasonably clear path to the condition requiring the performance assessment by reason of the reliance by the Council on s 150E and the analysis above. The condition has effect by reason of the Commission agreeing with the proposed imposition even if that agreement is obtained subsequently.
In my view, the fact that the National Board was to record the condition immediately does not, in circumstances where the Commission has agreed render the condition of no effect.
The Applicant also relied on s 150D of the National Law. Subsection 150D(1) provides that the Council must, as soon as practicable but no later than 7 days after taking action under s 150, refer the matter to the Commission for investigation. It appears to be contended that having taken "action" it was not permissible to impose the additional condition of a performance assessment.
However, s 150D(5) provides that the section does not apply if a council takes action against a registered health practitioner under s 150 that is "action" of the kind referred to in s 150(5) which, of course, is a reference to performance assessment.
In the circumstances it is difficult to identify an error in respect of a point of law in what the Council has done in respect of Condition 4.

[8]

Other Issues

In respect of Condition 1 the Respondent takes issue with the contention by the Applicant that the phrase "pharmacist in charge" is uncertain. The Respondent contends that it is a well-recognised word within the pharmacy profession, it features in the proprietor guidelines and is encompassed in s 139D(1)(d) of the National Law which provides as follows: (1) In addition to the matters referred to in s 139B, "unsatisfactory professional conduct" of a pharmacist also includes each of the following: ... (d) if the pharmacist is the pharmacist in charge of a pharmacy, failing to display adjacent to the area where dispensing is carried on in the pharmacy the name of the pharmacist in charge followed by the words "pharmacist in charge". I accept that contention.
As a registered pharmacist there is nothing preventing the Applicant from being a pharmacist in charge and Condition 1 appears to be aimed at preventing that on an interim basis.
The Applicant also raised the question of a failure to give reason at the time of the notice of the Decision. Given the extensive reasons published by the Council on 31 October 2022 the Applicant contended, as I apprehended the argument, that the failure said to give rise to a point of law was the failure to provide these reasons at the date of the imposition of the conditions, namely 14 October 2022. In this regard the Applicant relied on s 176(3) of the National Law.
The Applicant contended that the absence of reasons at the time of the Decision deprives a practitioner of an ability to consider his or her position, with the stultification of a timely appeal under s 159 and 159B of the National Law and in particular any application of a stay of their Decision. This submission appears to go contrary to the right of an appeal as provided for in s 161 which permits an appeal on a point of law within 28 days after the day the person making the appeal was given written notice of the reasons for the decision being appealed against, or within the longer period allowed by the Tribunal.
My preliminary assessment on these grounds are that they are weak.
The Applicant also contends that there is uncertainty in respect of Conditions 2 and 3 by reference to the phrase "possess".
I note that pursuant to the Poisons and Therapeutic Goods Act 1996 the phrase "possession" features in a number of sections including s 17A, 17B, 17C, 17D, 18AA and s 23. In respect of the Poisons and Therapeutic Goods Regulation 2008 the phrase "possession" is found in Regulation 101 and 102.
I am prepared to accept that the use of the phrase "possess" in Conditions 2 and 3 are in the present matter such as to give rise to points of law within the scope of s 159B for the purposes of the stay because of the potential impact on a pharmacy in which the Applicant has only a financial interest.
Whilst accepting that the Council does not require a complaint to take immediate action under s 150, by reason of s 150(4), it was argued on behalf of the Applicant that the Respondent's failure to "confirm with the PRU", the letter dated 28 September and the accompanying report is in fact a complaint raised the question of the legal foundation to the report and who was the alleged complainant.
I do not regard this argument as raising an arguable point of law. Section 150(4) appears to me to be clear.

[9]

Balance of Convenience

The Applicant argued that the balance of convenience favours the granting of a stay on the basis that the grounds demonstrate errors on the face of the record which invalidated the Decision. The Applicant argues that the failure of the Respondent to confirm the identity of the alleged complainant, let alone undertake the statutory task was prima facie a denial of procedural fairness resulting in jurisdictional error. This argument appears to me not to be reasonably arguable and was not adequately developed.
The Applicant relied in particular upon what was said to be the irreversible reputational damage to the Applicant coupled with the uncertainty of the proposed conditions, the interest of justice favouring the grant of a stay.
I take into account the strength or otherwise of the case of the Applicant seeking the stay and in that regard accept that there are reasonably arguable grounds of unreasonableness and in respect of the imposition of Conditions 2(a) and 3(a) and the phrase "possess" in Conditions 2 and 3.
I am conscious of the fact that a stay of a decision may be appropriate where such an order is reasonably necessary to secure the effectiveness of an appeal. In the current matter it seems to me that that requirement for consideration relates potentially to the performance assessment which is required pursuant to Condition 4. I accept the submissions by the Applicant that requiring that assessment to take place prior to the disposition of the appeal may render the appeal ineffective in that regard.
The Applicant did not point to any other real prejudice other than reputational harm and, as was made plain in Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 at [37] damage does not tip the balance to the Applicant in a consideration of a balance of convenience in respect of a stay.
In the absence of the identification of an immediate risk to the health and safety of the public the interests of justice in my view support a stay for a short period pending the hearing and determination of the appeal which may be expedited as the parties appear to have supported such a course.
Accordingly, I am prepared to grant a stay of the operation of the Conditions imposed by the Council pending the hearing and determination of the s 159B appeal filed by the Applicant.

Parties

Applicant/Plaintiff:

Armstrong

Respondent/Defendant:

Pharmacy Council of New South Wales

Legislation Cited (2)

Poisons and Therapeutic Goods Act 1966(NSW)

Poisons and Therapeutic Goods Regulation 2008(NSW)

Cases Cited (12)

Requirements to Support a Stay

An appeal by a health practitioner who is the subject of action taken by a council under s 150 is confined to an appeal "with respect to a point of law" to the Tribunal. The power to grant a stay of a council's decision pursuant to s 150 is set out in s 165L(2) of the National Law as follows: The Tribunal may, in respect of an appeal under s 159B, make an order staying the decision of the council appealed against until the appeal has been disposed of.
The principles to be applied when considering whether to grant a stay are well established (Ansari v Medical Council of New South Wales [2021] NSWCATOD 138; Hill v Medical Council of New South Wales [2019] NSWCATOD 52; and Liu v Chinese Medicine Council of New South Wales [2019] NSWCATOD 13).
Those principles can be summarised as follows: (a) The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. (b) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. (c) The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. (d) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (e) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (f) The overriding principle in an application for a stay is to ask what the interests of justice require.
As with all applications under the National Law the object in s 3A is relevant, namely, that the health and safety of the public is to be the paramount consideration and is a matter entitled to significant weight once it appears that a professional person has misconducted him or herself to a substantial degree (Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [43] to [47] per Boland AM ADCJ).
Each case must turn on its own specific facts. The Applicant bears the onus of establishing that it is appropriate to grant the stay (Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [59] per Boland AM ADCJ).
A stay, accordingly, is only available in respect of an appeal based on s 159B of the National Law which is limited to appeals in respect of a point of law (see Medical Council of NSW v Lee [2017] NSWCA 282 at [13] - [14], [93] and [96]). The identification of a point, or points, of law, assessed as to relative strength or weakness, together with, and as part of, the balance of convenience is central to the outcome.

Power to Impose Conditions

Section 150 reads as follows: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
The decision of the Council to impose conditions on the registration of the Applicant involved, in effect, two discretionary decisions. The first was as to the delegates' satisfaction as to the appropriateness or otherwise to do so for the protection of the health or safety of any person or persons, or if satisfied otherwise it is in the public interest. The satisfaction involved a degree of subjectivity and thus, in a broad sense is a discretionary decision (see Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [20] per Gleeson CJ, Gaudron and Hayne JJ in respect of similar legislative provisions).

(2000) 203 CLR 194

(2010) 240 CLR 611

(1999) 197 CLR 611