Daryll Knowles v Pharmacy Council of New South Wales

Supreme Court of NSW|2016-01-20|Before: Lindsay J

Solicitors: Shaw McDonald Lawyers (plaintiff) Christine Campbell, Principal Legal Officer, Pharmacy Council of NSW (defendant) File Number(s): 2016/00004597

INTRODUCTION

The plaintiff, a registered pharmacist, applies for an order (under s 69 of the Supreme Court Act 1970 (NSW)) in the nature of prohibition or, alternatively, an injunction restraining the defendant (the Pharmacy Council of New South Wales) from making, or, it might be said, purporting to make, an order under section 150(1) of the Health Practitioner Regulation National Law (NSW) to the effect that: 1. his registration be suspended (section 150(1)(a)); or 2. a condition, or conditions, be imposed (on his registration) relating to his practising pharmacy (section 150(1)(b)).
In substance, the plaintiff seeks, by these proceedings, to prevent the defendant from not only making, but also considering whether to make, an order under section 150 "until a period of 22 days has elapsed after the provision of further material from the Pharmaceutical Services Unit [of the New South Wales Ministry of Health] as requested [of the PSU by the solicitors for the plaintiff] on 7 January 2016".
Urgency attaches to the proceedings (heard yesterday on a final basis) because the defendant has notified the plaintiff that it proposes, this morning, to consider whether to make an order under section 150(1)(a) or (b) based on information received by the defendant from the PSU.

FACTS

The proceedings fall to be determined in a busy vacation duty list in which time is at a premium.
The information received, and to be considered, by the defendant takes the form of a report dated 25 November 2015 prepared by Aleksandar Gavrilovic (senior pharmaceutical officer of the PSU), provided to each of the defendant and the Health Care Complaints Commission, under cover of letters dated 10 December 2015 by Bruce Battye, the Deputy Chief Pharmacist of the PSU.
Omitting formal parts, the Deputy Chief Pharmacist's letter to the Executive Officer of the defendant was in the following terms, so far as presently material: "Please find attached a copy of letter to the Health Care Complaints Commission (the Commission) in regard to pharmacist Daryll Knowles, with a copy of the report of an investigation into Mr Knowles' Australian Custom Pharmaceutical pharmacy completed by Senior Pharmaceutical Officer Aleksandar Gavrilovic. As the above report documented numerous breaches of the Poisons and Therapeutic Goods Legislation and evidence of noncompliance with the Pharmacy Board of Australia's Guidelines on compounding of medicines and Guidelines on responsibilities of pharmacists when practising as proprietors, the matter is hereby brought to the Pharmacy Council's (the Council's) attention for its information and any actions that the Council deems necessary. Given the seriousness and scale of the matters brought to attention in Mr Gavrilovic's report, it is apparent that Mr Knowles has failed to exercise responsible professional judgment in his ongoing practice as a pharmacist. It is therefore recommended that consideration is given by the Commission and the Council of the necessity to impose conditions on Mr Knowles' practice as a pharmacist under the provisions of section 150 of the Health Professional Regulation National Law (NSW) in order to protect public health and welfare. Should you require any further information, please do not hesitate to contact Aleksandar Gavrilovic, Senior Pharmaceutical Officer...".
The defendant provided a copy of the PSU's report dated 25 November 2015 and the covering correspondence dated 10 December 2015 to the plaintiff under cover of a letter dated 16 December 2015 signed by the defendant's legal officer.
The defendant's letter bears this heading: "Intention to consider action - possible conditions on registration as a pharmacist, section 150(1)(b) Health Practitioner Regulation National Law (NSW) ('the Law')".
In summary terms, the text of the letter recorded the following points: 1. The defendant had received a "complaint" from the PSU, based upon the report dated 25 November 2015. 2. The defendant considers that the conduct evidenced by the report (including alleged breaches of guidelines), described as conduct "the subject of investigation", is "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience under section 139B of the Law"; that is to say, "unsatisfactory professional conduct" within the meaning of section 139B(1)(a) as distinct from "professional misconduct" as defined by section 139E. 3. The defendant "is concerned about the risks posed to the public, and as such, intends to consider taking action under section 150 of the Law. Under section 150 of the Law [the defendant] 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, either [i] suspend a pharmacists registration; or [ii] impose on a pharmacist's registration conditions the [defendant] considers appropriate." 4. The defendant proposed that it would meet on 11 January 2016 "to consider whether to take any action under section 150 of the Law", which action might: (i) include imposition of a condition that the plaintiff not practise as a pharmacist, amongst a list of 11 possible conditions; or (ii) involve suspension of the plaintiff's registration. 5. Invoking section 164G of the Law, the defendant required the plaintiff to provide information, and also invited him "to make submissions regarding the intention [of the defendant] to consider imposing conditions or suspension under section 150 of the Law". 6. The defendant called for a written response to its letter by 5:00 pm on 7 January 2016, and invited an explanation for delay should the plaintiff be unable to meet that deadline. 7. The defendant warned the plaintiff that, "[if] you have not contacted [the defendant], or in the absence of a response from you, [the defendant] may proceed to consider taking action as described above, pursuant to section 150 of the Law". 8. The defendant drew attention to two avenues for a section 150 decision to be challenged; namely: (i) an application under s 150A of the Law for the defendant to review the decision; and (ii) a right of appeal under section 159(1) to the Civil and Administrative Tribunal of NSW (NCAT).
On 24 December 2015 the plaintiff's in-house solicitor sought from the defendant, and the defendant refused, an extension of time within which to respond to the defendant's letters.
In the course of that exchange, the plaintiff's in-house solicitor recorded a blanket denial by the plaintiff of allegations against him.
Further attempts by the in-house solicitor for the plaintiff to obtain an extension of time were unsuccessful.
Those attempts included a letter dated 31 December 2015 in which the solicitor complained of a denial of procedural fairness and threatened institution of the current proceedings.
The denial of procedural fairness of which complaint was made was, as it remains, an alleged denial of a reasonable opportunity to respond to allegations made against the plaintiff in the PSU report.
The plaintiff's requests for further time have been related, in large measure, to a perceived need of the plaintiff and his legal advisers to investigate the foundations (including sources of information) of the PSU report.
Three events of present significance occurred on 6 January 2016.
First, the plaintiff filed a summons seeking orders designed, expressly, to restrain the defendant "from further consideration or proceeding to any determination in respect of" the defendant's letter dated 16 December 2015 "until the plaintiff has been provided with adequate time to prepare a full and reasoned reply to the allegations contained" in the letter.
Secondly, the parties agreed that the plaintiff would be allowed until 19 January 2016 to provide written submissions in response to the defendant's letter.
Thirdly, the summons was adjourned to the list of the Equity duty judge on 3 February 2016 (the third day of the new Court term) with a reservation of liberty to apply in the meantime.
By a letter dated 7 January 2016, addressed to the PSU, the solicitor on the record for the plaintiff in the proceedings requested the PSU to provide to him, no later than 13 January 2016, a copy of all source material for the PSU's report.
By a letter dated 8 January 2016, addressed by the PSU to the solicitor for the plaintiff, the PSU advised that the author of the PSU report (Mr Gavrilovic) is on leave until 25 January 2016, on and after which he will be able to consider the plaintiff's "requests for information as a priority".
An insight into the dilemma confronted by the plaintiff and his legal advisers can be obtained from the introductory paragraph of the PSU's letter: "As you will appreciate, the investigation concerning Mr Knowles that is the subject of the current Pharmacy Council action was complex and involved a large volume of documents being obtained and analysed by Mr Gavrilovic, the investigator managing this matter. Mr Gavrilovic is the appropriate person to consider your requests."
This suggests that it is not, or at least that it may not be, unreasonable for the plaintiff to seek time for the preparation of a full, detailed response to the PSU report if, and when, a full, detailed response is necessary.
On 18 January 2016 the plaintiff, by his solicitors, provided to the defendant written submissions (expressly described as "preliminary submissions") in response to the defendant's letter of 16 December 2015 and the underlying PSU report.
The solicitors' covering letter requested that the plaintiff be granted an extension of time, of 14 days after receipt of the source material requested of the PSU, within which to respond to the defendant's letter.
It threatened to have the proceedings relisted before the Court, as in the event happened, in the absence of agreement to that extension.
The plaintiff's "preliminary submissions" have not been placed before the Court in their entirety. Including a bundle of supporting documents, they are said to run to 188 pages. What has been placed before the Court is the text of the "preliminary submissions", including an "executive summary".
The "preliminary submissions" include confirmation of an offer by the plaintiff to submit, without admissions, to four specific, informal "undertakings" to the defendant, intended to address concerns the defendant may have, falling short of an imposition of conditions under section 150(1)(b) of the Law.
By a letter dated 19 January 2016 the defendant advised the solicitor for the plaintiff that the defendant "does not consider it appropriate to grant a further extension of time [as requested by the plaintiff] given the urgent nature of these proceedings."
In purported compliance with section 41O of the Law, the defendant advised the solicitor for the plaintiff that, when considering possible section 150 action, it proposes to have regard to a complaint currently being investigated by the Health Care Complaints Commission arising out of observations made by a judge of this Court in proceedings entitled Redwood Anti-Ageing Pty Ltd v Knowles & Ors, which the parties have identified in the proceedings presently before the Court as having been reported at [2013] NSWSC 508.
This is the context in which the plaintiff sought, and obtained, an urgent, final hearing of the current proceedings.
During the course of the hearing the plaintiff was granted leave to amend the summons to claim the relief described at the commencement of these reasons: namely, an extension of time of 22 (not 14) days from the provision of information by the PSU before consideration of section 150 issues by the defendant.

ANALYSIS

So far as material, section 150 of the Law is in the following terms (with emphasis added): "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; … (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…."
For the purpose of these proceedings, the defendant accepts that, so far as is consistent with protection of the public, its consideration of whether to make orders for which sections 150(1)(a) and (b) provide must be attended by procedural fairness to the plaintiff.
It must be remembered that the principles of procedural fairness are capable of flexible adaptation to the imperatives of a need for urgent decision-making.
They are also seen, correctly, as an aid (not necessarily an impediment) to the making of sound decisions.
Against that, it must be also be acknowledged that where, exceptionally, the jurisdiction to make a particular decision would be frustrated by an application of the principles of procedural fairness, the operation of those principles may be dispensed with or modified.
It is not necessary to explore that territory in the current proceedings.
The focus for attention can, and should, be on the terms of section 150(1), predicated as they are on an imperative that the defendant (a representative body comprised, principally, of pharmacists) consult public interest considerations upon a consideration of whether "it is satisfied that it is appropriate" to make an order or orders under section 150.
There is no basis in the evidence for a finding that the defendant cannot, or will not, perform the duty imposed on it by section 150(1), taking into account all the circumstances of the case, including the nature, content and limitations of the materials placed before it by the PSU and the plaintiff respectively; the plaintiff's articulated request for further information and additional time to respond to the PSU report; and the plaintiff's offer of undertakings.
The plaintiff's request for further time may need, also, to be assessed for its reasonableness in the context of the time of year at which the plaintiff was confronted with the PSU report and the unavailability of the report's author to respond to requests for information.
In any event, I am not satisfied that there has been, or will be, a denial of procedural fairness or that any unfairness attending decision-making of the defendant warrants the intervention of the Court at this time.
As the decision-maker entrusted with the power and responsibility for a decision under section 150 of the Law, the defendant should be allowed an opportunity to perform its statutory functions.

CONCLUSION

Accordingly, I order that the plaintiff's amended summons be dismissed.

COSTS

The defendant seeks an award of costs on the indemnity basis. It is not disputed by the plaintiff that an order for costs should be made against him on the basis of the ordinary practice of costs following the event. However, the plaintiff contends that it was not unreasonable for him in the circumstances to institute these proceedings.
I am not satisfied that there is any foundation for an award of indemnity costs. Allowance must be made, I think, for an appreciation of the circumstances confronted by the plaintiff, including the need to attend urgently to a report the author of which was not available to respond to requests for information.
The appropriate order for costs, which I make, is that the plaintiff pay the defendant's costs of the proceeding (on the ordinary basis).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 January 2016

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