Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158 | Case summary

Health Care Complaints Commission v Bakarich [2019] NSWCATOD 158 | Case summary | Zoe

REASONS FOR DECISION

In May 2017, pharmacist, Nicholas Bakarich, was convicted of two charges of common assault (s 51 of the Crimes Act 1900 (NSW)) (the first offences). In addition, he was convicted of one count of "assault occasioning actual bodily harm" (s 59(1) of the Crimes Act) and one count of "stalk or intimidate intending to cause fear of physical or mental harm" (s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)) (the second offences). The first offences were committed in July 2014, the second offences in September 2016.
In July 2018, the Pharmacy Council of NSW imposed several conditions on Mr Bakarich's registration, including that he not have face-to-face contact with potential, current or former clients of any pharmacy in which he held a financial interest and not to practise as a pharmacist without supervision. Since those conditions were imposed, Mr Bakarich has not practised as a pharmacist. However, he continues to own and operate two pharmacies in Newcastle, NSW. Both pharmacies operate solely to provide methadone and buprenorphine to patients enrolled on the NSW Opioid Treatment Program (OTP). The program delivers pharmacotherapy and associated services to opioid-dependent patients in NSW.
After investigating a complaint referred by the Pharmacy Council, the Health Care Complaints Commission (the Commission) in turn referred a complaint about Mr Bakarich to the New South Wales Civil and Administrative Tribunal (NCAT).
The conduct the subject of that Complaint includes Mr Bakarich's failure to notify the Pharmacy Board of Australia (the National Board) that he had been charged with, and subsequently convicted of, the first and second offences. The Commission contends that these failures, taken together, amount to "professional misconduct". In addition, the Commission contends that the circumstances of the second offences render Mr Bakarich "unfit in the public interest to practise [pharmacy]". Mr Bakarich disagrees.
The Commission urges the Tribunal to exercise the power to cancel Mr Bakarich's registration as a pharmacist and to prohibit Mr Bakarich from seeking review of that decision for a period of 12 months. Mr Bakarich contends that the pre-condition to the exercise of the power to cancel his registration has not been satisfied. He urges the Tribunal not to make a cancellation order but rather to issue a reprimand and impose a fine and conditions on his registration, including that he receives ongoing psychiatric treatment.
The key issue we must decide is whether the discretion to cancel Mr Bakarich's registration as a pharmacist is enlivened and, if so, whether that discretion should be exercised.

[10]

The second offences

On 2 September 2016 at about 7pm, Mr Bakarich was alone attending to paperwork in Nic's Pharmacy in Hamilton South, NSW (the Pharmacy) when Person C knocked on the door of the pharmacy, returning twice. The Pharmacy had closed at 12:30pm. Mr Bakarich knew Person C, who had been a patient on the pharmacy's ODP. Mr Bakarich is the owner of Nic's Pharmacy.
Person C alleged that Mr Bakarich left the pharmacy and walked towards him saying, "Come on let's do this, I'm going to sort you out". Person C ran and fell. Mr Bakarich jumped on Person C and punched him in the head and face. Mr Bakarich then hyper-extended Person C's arm and began punching Person C in the face saying "you tell anyone. I'll come fuck you up. This is what MMA [Mixed Martial Arts] does to you".
On returning to the pharmacy, Mr Bakarich called the Police. When questioned by the Police, Mr Bakarich gave this account: he heard someone tapping on the window of the Pharmacy calling for help; he left the Pharmacy and saw a man squatting by a car, who he thought was having an overdose; when he went over to help, the man "jumped up and started on me" and then two other men "jumped me as well"; he ran back to the Pharmacy and called the Police.
The Magistrate rejected Person C's claim that he only looked in or walked past the Pharmacy and called out to Mr Bakarich seeking help. The Magistrate found that Person C had called out to Mr Bakarich "in what appears to be an aggressive manner". Nonetheless, the Magistrate broadly accepted Person C's account of being assaulted by Mr Bakarich. The Magistrate found that Mr Bakarich had intended to have a physical confrontation with Person C; that Person C ran, fell and then was repeatedly punched by Mr Bakarich. In addition, the Magistrate found that Mr Bakarich threatened Person C and said, "You fucking tell anyone, I'll come get you". The Magistrate rejected Mr Bakarich's claim to have acted in self-defence.
On 2 May 2017, Mr Bakarich was convicted of the offences of "intimidate intending to cause fear of physical or mental harm" (s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)) and "assault occasioning actual bodily harm" (s 59 of the Crimes Act 1900 (NSW)). The Magistrate ordered Mr Bakarich to perform 140 hours of community service and to enter into a 24-month good behaviour bond.
In addition, the Magistrate revoked the bond issued in January 2015 in respect of the first offences and convicted Mr Bakarich of those offences. The Magistrate directed Mr Bakarich to enter a 24-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act.

[12]

Is being "the subject of findings of guilt for offences punishable by imprisonment" a relevant event?

Mr Bakarich contends that the decision of the Local Court made on 13 January 2015 does not, as asserted by the Commission, constitute a "relevant event" as defined by s 130(3)(a)(ii) of the National Law. It follows, he contends, that the finding made by the Local Court did not trigger an obligation to report under s 130 of the National Law and therefore there is no basis for Particular 2 of Complaint 2.
The resolution of this issue turns on the proper construction of s 130 of the National Law. Section 130(1) provides that "a registered health practitioner … must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner … give the National Board … written notice of the event" (emphasis added). Section 130(3)(a) defines "relevant event" in relation to a registered health practitioner to mean: (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the 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; or …
Mr Bakarich contends that because the Local Court decided not to record a conviction and to deal with the offences of common assault under s 10(1)(b) of the Crimes (Sentencing Procedure) Act, it could not be said that he was the subject of a "finding of guilt … punishable by imprisonment".
The Commission disagrees. The Commission contends that the words "punishable by imprisonment" is a reference to the "offence" for which the "practitioner is convicted of or the subject of a finding of guilt" not the "finding of guilt".
It is useful to set out the relevant provisions of the National Law and the Crimes (Sentencing Procedure) Act: 9 CONDITIONAL RELEASE ORDERS (1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if: (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under section 10(1)(b). … 10 DISMISSAL OF CHARGES AND CONDITIONAL DISCHARGE OF OFFENDER (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
The interpretation advanced by Mr Bakarich must be rejected. First, all criminal offences are potentially punishable. The relevant statutes provide for a maximum penalty that may be imposed in the event that a person is found guilty of the offence. Read in context it is clear that the phrase "punishable by imprisonment" used in s 130(3)(a)(ii), is a reference to a form of penalty which potentially could be imposed in respect of the subject offence for which the practitioner "is convicted of or the subject of a finding of guilt", not the conviction or the finding of guilt. Second, the use of the word "or" makes plain that s 130(3)(a)(ii) encompasses two types of events, first, being "convicted of … an offence … punishable by imprisonment" and, second being "the subject of a finding of guilt for an offence … punishable by imprisonment". Being the "subject of a finding of guilt for an offence" and being "convicted of … an offence" are not one and the same thing. If Mr Bakarich's interpretation is correct, the words "the subject of a finding of guilt for an offence" would have no work to do.
It follows that Mr Bakarich was required to report to the National Board that he had been found guilty on 13 January 2015 of the offences of common assault. Mr Bakarich's failure to report that event amounts to a contravention of s 130(1) of the National Law.
Particular 2 of Complaint 2 is established.

[15]

Explanation given for failing to comply with the statutory reporting requirements

Mr Bakarich claims that the reason he did not notify the National Board that he had been charged with the first and second offences was because he was unaware of the obligation to report being charged with an offence.
With respect to his subsequent failure to notify the National Board that on 13 January 2015 the Local Court made him the subject of a finding of guilt in respect of the first offences, Mr Bakarich claims that he had assumed that the notification requirement did not apply where charges were dismissed under s 10 of the Crimes (Sentencing Procedure) Act. In support of that claim, he points to the advice he received from the solicitor who represented him in the Local Court proceedings. In a letter to Mr Bakarich dated 16 January 2015, the solicitor wrote: "[A] dismissal pursuant to s 10 [Crimes (Sentencing Procedure) Act] is probably the best result as we understand you do not have to report that to your professional body".
In an email sent on 5 June 2018, replying to an enquiry from the Commission, referring to the above statement, the solicitor wrote that he recalled being advised by Mr Bakarich that he was not required to advise the relevant professional body if the proceedings were dealt with under s 10 of the Crimes (Sentencing Procedure) Act "as there was no conviction".
In these proceedings, Mr Bakarich stated that he did not recall the alleged discussion with the solicitor. In addition, he pointed out that the account the solicitor gave to the Commission conflicts with the submissions made by the solicitor urging the Court to deal with the matter under s 10 of the Crimes (Sentencing Procedure) Act: Solicitor: This is matter which will have to be referred to the - I forgot the name, the professional body. Magistrate : What, after I have dealt with it? Solicitor: After Yes Magistrate: What is the likelihood? Solicitor: I gained no assistance from them from my enquiries as to what would happen. Certainly, it a matter which they will take into account and I can't assist you there. I can't say it is a trivial offence. (Emphasis added)
With respect to his failure to report to the National Board that he had been convicted of the second offences, Mr Bakarich claimed it was an oversight and in part the result of his confusion about the relationship between the Pharmacy Council of the NSW, the Pharmacy Board of Australia and the Australian Health Practitioner Regulation Agency (AHPRA). Mr Bakarich notified AHPRA of the convictions on 29 November 2017, in the course of renewing his registration.
The Pharmacy Council received notice of Mr Bakarich's conviction for the second offences on 11 May 2017. On 5 June 2017, the Council met to determine whether, as a consequence of that conviction, it was appropriate to exercise the powers conferred by s 150 of the National Law to suspend or impose conditions on Mr Bakarich's registration. In the course of those proceedings, the following exchange took place between Mr Bakarich and a member of the Council about the nature of Mr Bakarich's reporting obligations in relation to the conviction for the second offences: MS BURLEW: …The only additional thing that I wanted to ask was we had a look on the AHPRA web site this morning before you came and we didn't see any indication that you'd advised AHPRA and there's a requirement for you to advise AHPRA when you're charged and when you're convicted. Did you know that? MR BAKARICH: I thought I had to advise the Pharmacy Council. MS BURLEW: No, you have to actually advise AHPRA. MR BAKARICH: Okay. No, I hadn't - I thought that I had to advise the Pharmacy Council and - - - MS BURLEW: Yes. MR BAKARICH: - - - that was part of our reporting. MS BURLEW: Right. MR BAKARICH: And, you know, obviously my hope was by the time that came around that I'd be able to rectify the situation, you know. I thought I'd have some time frame to be able to deal with things but - - - MS BURLEW You just have to let them know - - - MR BAKARICH: Yes. MS BURLEW: - - - and then what they do is they decide how they want to deal with that - MR BAKARICH: Yes. MS BURLEW - - - at the next registration time. So - - - MR BAKARICH: So do I have to sit in front of another body? MS BURLEW: No, I don't believe so. I think they do it out of session, if you like. MR SINCLAIR: It's a procedural thing. MS BURLEW: Yes. It's a-yes. MR SINCLAIR: We don't want you compromised in any way by not being aware that you have to notify them. MS BURLEW: Yes. MR BAKARICH: Okay. MS BURLEW: So we just think you should - - - MR SINCLAIR: We'll just make you aware of that, that you - - - MS BURLEW: Pop on the web site and have a look at what your accountabilities are in that space so that you're not disadvantaged in any way.
In reasons for decision issued on 29 June 2017, the Council wrote at [30]: Council members noted that Mr Bakarich had not notified AHPRA of his conviction and reminded him to do so prior to the next renewal of his registration. (Emphasis added)
In cross-examination in these proceedings, Mr Bakarich agreed that during the s 150 proceedings, he was advised that his reporting obligations were not discharged by disclosure to the Council. In addition, he agreed that he did not heed the Council's advice to "pop on the web site" and clarify the nature of his reporting obligations. He claimed that at the time he did not fully appreciate the difference between the Council, the Board and AHPRA. He said he could now not exactly recall why he failed to report the conviction to AHPRA and thought it was probably an oversight.
When renewing his registration online on 29 November 2017, Mr Bakarich wrote: I was convicted of an assault on a man who tried to rob me. I have already faced the pharmacy board and they took no action on my registration. Please stipulate via email what further documentation you require or you can contact the pharmacy board directly. Eunice Yea was the case manager and representative of the pharmacy board in this matter.

[16]

Submissions

Counsel for Mr Bakarich, Mr Lloyd, points out that s 130(1) required Mr Bakarich to report "relevant events" to the National Board, here the Pharmacy Board of Australia, not AHPRA as advised by the Council. He points out that AHPRA and the Board are different entities, and that while AHPRA's functions include providing administrative assistance and support to the National Boards, the National Law does not declare AHPRA to be an agent of the National Boards: see ss 23, 25(a), 31. Mr Lloyd asserts that had Mr Bakarich followed the advice given by the Council and reported to AHPRA, he would have remained in breach of his reporting obligations under the National Law.
Mr Lloyd argues that the claim made by Mr Bakarich to the Council during the s 150 proceedings that he understood that his reporting obligations were fulfilled by the disclosure made to the Council, is not implausible given the lack of clarity about the respective roles of, and relationship between the Pharmacy Council of NSW, the Pharmacy Board of Australia and AHPRA. He asserts that Mr Bakarich's evident confusion is hardly surprising given that the contact details of the National Boards are not contained on AHPRA's website. In addition, Mr Lloyd submits that the statement made by Mr Bakarich when renewing his registration in 2017, that he had "already faced the Pharmacy Board and they took no action on my registration", is consistent with his claim that he did not appreciate, or fully appreciate the difference between the Council and the National Board, and to whom his reporting obligations were owed.
Mr Lloyd points out that Mr Bakarich's actions in notifying AHPRA when his registration fell due is consistent with the recommendation made by the Council in its reasons for decision.
The Commission contends that when the evidence of Mr Bakarich's failure to report is considered in its entirety, the "overwhelming inference" is that, at least in relation to the second offences, he was aware of the obligation to report being charged with and convicted of those offences. The Commission points out that Mr Bakarich did not volunteer to AHPRA, the fact of his conviction for the second offences, but rather disclosed that information in answer to a direct question contained on the registration form: "Since your last declaration to AHPRA, has there been any changes to your criminal history in Australia that you have not declared to AHPRA?".
The Commission contends that the evidence supports a finding that Mr Bakarich deliberately avoided notifying AHPRA of being charged with and convicted of the second offences for fear of the potential consequences. The Commission argues that Mr Bakarich's concern about the prospects of losing his registration is demonstrated by the comments he made in the proceedings before the Council on 29 June 2018: I would honestly prefer to have gone to gaol over losing my registration and that's the truth, if I had to choose between the two of them…

[17]

Findings and conclusions

Determining whether Mr Bakarich's failure to report the four events particularised in Complaint 2 constitutes professional misconduct as defined by s 139E of the National Law requires us to evaluate whether that conduct is "sufficiently serious to justify suspension or cancellation" of Mr Bakarich's registration: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [19]. As Basten JA emphasised in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, in referring to the definition of professional misconduct in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, the definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: [67].
In evaluating whether the subject conduct is of a sufficiently serious nature to justify suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct.
Relevant to the assessment of the seriousness of Mr Bakarich's failure to report, is whether that failure was deliberate.
On the available material we could not be satisfied that when charged with the first and second offences on 31 July 2014 and 2 September 2016 respectively, Mr Bakarich was aware of the requirement to report being charged with an offence. While there can be no argument that by January 2015, Mr Bakarich was aware of the requirement to report being convicted of an offence, we could not be satisfied that, at that time, he was aware that the requirement to report extended to being charged with an offence.
Nor are we satisfied that in January 2015, Mr Bakarich was aware of the requirement to report being made the subject of a finding of guilt. His claim that his solicitor told him that he was not required to report in circumstances where the Magistrate decided to deal with the offence under s 10 of the Crimes (Sentencing Procedure) Act is consistent with the written advice Mr Bakarich was given by his solicitor and the submissions made by the solicitor to the Local Court.
With respect to the delay in notifying the National Board of his conviction for the second offences, the issue to be determined is whether as the Commission contends, that delay was a deliberate step, designed to avoid the potential adverse consequences for his registration.
We find it improbable that on renewing his registration in November 2017, Mr Bakarich continued to harbour the belief stated on the registration form, that his reporting obligations had been discharged by the report made to the Council. While possible, on the available material we could not be satisfied that before renewing his registration in November 2017, Mr Bakarich was aware that he was required to report his conviction for the second offences to the National Board, within seven days of being convicted. Nonetheless, we do not accept his claim that his failure to report in the intervening period between the Council proceedings and renewing his registration, was merely an oversight. While the written advice given by the Council about when Mr Bakarich was required to report was incorrect, nonetheless, we find that Mr Bakarich made a deliberate decision to ignore the other piece of advice given by the Council: to make his own enquiries about the nature of his reporting obligations. We find that he did so because, unsurprisingly, he was fearful of the consequences for his registration and ownership of the pharmacies. In those circumstances, Mr Bakarich's failure to report after the Council proceedings, amounted to a reckless disregard for his professional obligations.
Mr Bakarich's delay in reporting being convicted of the second offences, within the period prescribed by the National Law, is of a sufficiently serious nature to justify the suspension of Mr Bakarich's registration.
We find Mr Bakarich guilty of professional misconduct.

[19]

Proper interpretation of 149C(1)(c)

Section 149C(1) enlivens the power to cancel or suspend a practitioner's registration and provides that, "[t]he Tribunal may suspend ... or cancel the registered health practitioner's registration if the Tribunal is satisfied" of any one of the four matters identified in s 149C(1)(a)-(d). Section 149C(1)(c) provides: 149C TRIBUNAL MAY SUSPEND OR CANCEL REGISTRATION IN CERTAIN CASES [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-- … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or …
The parties agree that, as explained by Payne JA in Chen, s 149C(1)(c) is "not subject to any 'probably permanent' limitation upon the fitness finding required": at [69].
In addition, the parties agree that in determining whether s 149C(1)(c) is satisfied the Tribunal must have regard to all the circumstances surrounding the subject offence.
While not addressed by either party, in our view the use of the definite article "the" indicates that in assessing whether the practitioner is relevantly unfit to practise, the task required by s 149C(1)(c) must be undertaken by reference to a single offence. If, as here, the practitioner is convicted of more than one offence, the additional offences might constitute "circumstances of the offence", but nonetheless the evaluation of unfitness must be undertaken by reference to "the offence".
The Commission did not nominate which of the second offences rendered Mr Bakarich relevantly unfit to practice. We proceed on the basis that the relevant offence is the offence of assault occasioning actual bodily harm. In these reasons we will refer to that offence as the "subject offence".
The parties disagree about whether the task of evaluating whether the "circumstances of the offence, render the practitioner unfit in the public interest to practise the practitioner's profession" should be undertaken by reference to the time that evaluation is undertaken, or the time the offence was committed. The Commission contends that that evaluation should be undertaken by reference to the time the offence was committed; Mr Bakarich contends that the relevant time is the time the Tribunal exercises the discretion to suspend or cancel, or not to suspend or cancel, the practitioner's registration. Mr Bakarich submits that it would be an "absurd result" if the evaluation of a practitioner's fitness to practise was made at the time the offence was committed, giving as an example, a practitioner convicted of an offence while under the influence of illicit drugs. He argues that if the interpretation advanced by the Commission were to be accepted, the Tribunal would be required to ignore evidence highly relevant to the practitioner's current fitness to practise, such as rehabilitation undertaken in the intervening period since the offence was committed.
It is a fundamental precept of statutory interpretation that legislation is to be construed in context: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. So, too, is the purpose of the legislation: s 33 of the Interpretation Act 1987 (NSW). The objectives of the National Law relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a).
Focussing much more tightly on s 149C(1), placing s 149C(1)(c) in its immediate context, that is, in the context of the other clauses of sub-section (1), is of assistance in interpreting how s 149C(1)(c) should be construed. Clauses (a), (b) and (d) all appear to relate to a practitioner's status at the time the Tribunal is considering the decision whether to cancel or suspend his or her registration. This is clear from the use of the present tense in each clause.
Section 149C(1)(c) is somewhat different, but only to a minor degree. It uses the perfect tense ("has been") in relation to a finding of guilt of an offence but then uses the present tense ("render") in relation to the circumstances of the offence. By using the present tense of the word "render", the provision brings clause (c) into line with the other provisions, all of which refer to the practitioner's current status.
The question for the decision-maker seeking to apply s 149C(1)(c), therefore, is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to "the circumstances of the offence".

[20]

Circumstances of the subject offence

In our view, the following circumstances of the subject offence are relevant to the assessment of Mr Bakarich's unfitness to practise as a pharmacist in the public interest.
First, the victim of the offence, Person C had been a participant on the OTP, administered by the Pharmacy up until a month before the second offence was committed. A file note, made by an employee of the Newcastle Pharmacology Unit, a unit within the NSW Ministry of Health responsible for the management of the OTP, recorded that on 5 August 2016, Person C presented seeking details about an alternative pharmacist because his participation on the OTP with the Pharmacy had been terminated because of "missed dosages". Mr Bakarich was contacted, and he stated that Person C was "rude and hostile and there was no way that they … could continue to treat him". In an email to the Commission, sent on 28 May 2018, Mr Bakarich wrote that Person C, after being removed as a patient was instructed not to present to the Pharmacy again. He returned and Police were called to remove him from the premises.
Second, the subject offence was in the nature of a violent assault on a person. The Magistrate found that Mr Bakarich repeatedly punched Person C in the face with both fists while he was on the ground. During the assault, Person C sustained a suspected eye socket fracture, a knocked tooth and upper arm soft tissue damage.
Third, the Magistrate found that Mr Bakarich had threatened Person C saying, "You fucking tell anyone, I'll come and get you".
Fourth, while the Magistrate found self-defence not proven, he nonetheless accepted that there had been some provocation by Person C. The Magistrate rejected Person C's claim that he only looked in or walked past the Pharmacy and called out to Mr Bakarich seeking help. The Magistrate found that Person C had called out to Mr Bakarich "in what appears to be an aggressive manner".
Fifth, the Magistrate decided not to impose a custodial sentence but rather to order Mr Bakarich to perform 140 hours of community service and to enter a 24-month good behaviour bond.
Sixth, this was the second occasion Mr Bakarich had been found guilty of an offence involving violence against a person.
Seventh, at the time of the offence, Mr Bakarich was probably suffering from Post-Traumatic Stress Disorder (PTSD). In the opinion of psychiatrist, Dr Bruce Westmore, that disorder contributed to Mr Bakarich's lack of impulse control in assaulting Person C.
Eighth, the assault occurred afterhours while Mr Bakarich was attending to paperwork inside the Pharmacy.

[25]

Dr Westmore

Dr Westmore assessed Mr Bakarich in November 2014 and again in April 2019.
In a report dated 3 November 2014, Dr Westmore recorded that Mr Bakarich reported being subjected to "extensive and severe" physical and emotional abuse throughout his childhood by his stepfather. Shortly before committing the first offences, Mr Bakarich discovered that his stepfather was not his biological father. In addition, Mr Bakarich learnt that his biological father committed suicide two months after he was born and that his biological grandmother and great grandmother had also committed suicide. Dr Westmore recorded that when he discovered this information, Mr Bakarich became "very upset", was suicidal and had "self-harming thoughts", similar to those he experienced as a child.
Dr Westmore recorded that at the time of the first offences Mr Bakarich was "very upset" having recently made the discovery about his family history. He recorded that Mr Bakarich and a friend were having "a couple of drinks" in a hotel when physically attacked by Persons A and B. Mr Bakarich sustained a black eye and a broken tooth. Before the altercation which took place outside the hotel, Mr Bakarich "got emotional, everything happened at once".
Dr Westmore recorded a diagnosis of "Acute Stress Disorder", which in his opinion was a direct result of Mr Bakarich being assaulted in the hotel. Dr Westmore points out that DSM-V [American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed), a manual accepted in Australia as an authoritative psychiatric text], states that an Acute Stress Disorder can be precipitated by a person learning of the violent death of a close family member. According to Dr Westmore, this is relevant because Mr Bakarich learnt of the extensive history of violent deaths on his biological father's side of the family shortly before committing the first offences. In Dr Westmore's opinion, Mr Bakarich may previously have suffered an Acute Stress Disorder and possibly a more chronic Post Traumatic Stress Disorder as a result of the extensive abuse and violence experienced during his childhood.
In addition, Dr Westmore made a diagnosis of "Adjustment Disorder with depressed mood", which in his opinion was probably the result of "the complex series of events", including the criminal proceedings, relating to the first offences.
Dr Westmore wrote that based on his "long-term life history", Mr Bakarich's risks of reoffending are "extremely low, probably non-existent". He wrote that Mr Bakarich is clearly "very distressed" because of his aggressive actions, particularly towards Person B. Dr Westmore recommended that Mr Bakarich receive ongoing support and assistance, not only from his general practitioner, but from a psychologist.
Five years later, Dr Westmore again assessed Mr Bakarich. In a report dated 2 April 2019, Dr Westmore wrote that based on his current clinical presentation, there is no evidence that Mr Bakarich suffers from an acute psychiatric condition and that the Acute Stress Disorder evident when he first assessed Mr Bakarich had now resolved. In his opinion, Mr Bakarich was probably suffering from chronic Post Traumatic Stress Disorder at the time of the first and second offences and continues to suffer from that disorder. He remained of the opinion, recorded in his first report, that the disorder probably arose from the "traumatic events occurring during [Mr Bakarich's] early life".
Dr Westmore noted that, despite his self-report of not having problems with anger, Mr Bakarich has displayed significant aggression on two separate occasions over the past few years. In Dr Westmore's view, this "invariably indicates underlying issues of anger and possibly problems with impulse control and certainly at times his judgement". He wrote that it would be reasonable to conclude that, "in a general sense, he does have some unresolved anger issues". In his view, it would not be uncommon for a person such as Mr Bakarich to have unresolved anger issues considering his "early very dislocated, traumatic and disrupted childhood". Consistent with the opinion expressed in his first report, Dr Westmore wrote that there was a direct connection between Mr Bakarich's then psychiatric problems and the behavioural problems which led him to commit the first offences.
With respect to the second offences, Dr Westmore wrote that the issue of causation is "more complicated". He wrote that it is possible that because of the longstanding chronic PTSD, Mr Bakarich is "more prone to act aggressively if others act aggressively towards him, something he experienced during his formative years". He posited that there may be "some link between his underlying long-term psychiatric difficulties and his aggressive behaviour".
With respect to the steps that might be undertaken to manage risk, Dr Westmore recommended that Mr Bakarich continue to receive psychiatric care and ongoing counselling regarding his emotional responses when confronted with "difficult, demanding, challenging or threatening situations". In his opinion, Mr Bakarich is an intelligent man with "quite a high degree of psychological mindedness" and, theoretically, would be able to benefit from having counselling/psychotherapy regarding these particular matters.
Dr Westmore also considered relevant Mr Bakarich's self-report that since 2014 he has developed personally, has a more functional and extended social network, appears to be happier and content in his current relationship and has "greatly modified" his alcohol consumption. In his view, these were "positive prognostic indicators".
Commenting on the issue of risk, Dr Westmore wrote: I do not believe that Mr Bakarich would pose a risk to the broader public if he continues to practise as a pharmacist. He is not generally an angry man and "angry men" tend to be angry all or most of the time. Mr Bakarich's history is consistent with him becoming angry intermittently and then on occasions suffering episodes of behaviour discontrol. In other words, his anger appears to be very reactive in nature and he himself described that to rne when last examined, When considering issues of risk, previous behaviour becomes important. It is unknown what risk Mr Bakarich might pose if he is once again confronted by an aggressive demanding and/or difficult patient in his pharmacy. He has already had the benefit of some counselling and obviously the matters now being considered, and previous court matters will act as a powerful deterrent to further episodes of aggression.

[28]

Submissions on risk

The Commission does not challenge Dr Westmore's opinion that at the time of the first and second offences, Mr Bakarich was probably suffering from a chronic PTSD, and probably continues to do so. Nor does the Commission challenge Dr Westmore's opinion about the likely cause of that condition. Nor does the Commission question Dr Westmore's opinion of a probable link between Mr Bakarich's PTSD and the aggressive behaviour he demonstrated during the first and second offences.
However, the Commission challenges the claim made by Mr Bakarich in these proceedings that "he is doing everything in his power" to address these issues. The Commission points out there was a gap of nine months between Mr Bakarich's last two consultations with Dr Robinson and, further, that there is no evidence of any current treatment plan developed by his GP or any other practitioner to deal with his history of violence. In addition, the Commission points out that there is no evidence to support Mr Bakarich's claim that when seeing a counsellor for several months in 2018 with his then wife, he was also receiving treatment for anger management issues.
Mr Bakarich contends that highly relevant to the assessment of risk, is his long history of working as a pharmacist without incident. He points out that he has dealt with over 1,000 patients on the OTP, and there has never been any incident with a patient, and only one with a former patient, Person C.
He rejects the Commission's assertion that he has not received treatment for anger management issues. He points out that he has being seeing Dr Robinson on a reasonably regular basis since August 2017. He concedes that the primary purposes of seeing the counsellor in 2018, was to address issues relating to his marriage. However, he contends that it is not open to the Commission to now assert that he was not seeing the counsellor for that purpose, given that after accessing the counsellor's records over his objection, the Commission chose not to tender those records or to cross examine on their contents.

[29]

Findings and conclusions on risk

While not the focus of the 2018 counselling sessions undertaken by Mr Bakarich and his wife, we accept that in the course of those sessions, Mr Bakarich received some assistance in dealing with anger management issues.
On the basis of his short report of 26 June 2018, it is unknown whether Dr Robinson shares Dr Westmore's opinion that Mr Bakarich has issues with anger management and impulse control or, more relevantly, whether he has treated Mr Bakarich for those issues. It is to be recalled that in contrast to Dr Westmore, neither Dr Raggatt nor Dr Robinson expressed the opinion that Mr Bakarich has PTSD, or indeed, any other psychiatric condition
The opinions about risk proffered by Drs Robinson and Raggatt, can be given little weight because they rely in part, on the materially inaccurate account given by Mr Bakarich about the second offences. The opinion proffered by Dr Westmore does not suffer from the same defect.
While Dr Westmore is of the opinion that Mr Bakarich is likely to benefit from ongoing counselling for his "unresolved anger management issues" and notes a number of positive developments in Mr Bakarich's life that have taken place since 2014, in his opinion it is unknown "what risk Mr Bakarich might pose if he is once again confronted by an aggressive demanding and/or difficult patient in his pharmacy".
It goes without saying that the task of evaluating whether a person who has committed acts of violence against a person will reoffend, is a difficult one. We concur with Dr Westmore's opinion that Mr Bakarich is not an "angry man", rather a man who on occasion when provoked, reacts with aggression. In addition, we accept Dr Westmore's opinion that there are several positive prognostic indicators, which are likely to reduce the risk of reoffending. We also agree that the criminal and disciplinary proceedings in which Mr B has been involved, are likely to act as a powerful deterrent to further acts of aggression.
While Dr Westmore is of the opinion that Mr Bakarich would not pose a risk to the broader public if he were to continue to practise, that opinion is subject to the caveat that it is unknown whether if he were to again be confronted by an aggressive or demanding person in his pharmacy, how Mr Bakarich might react. While we accept, as argued by Mr Bakarich that OTP participants are not necessarily aggressive and violent, it is a matter of common knowledge of which we are entitled to have regard, that on occasion, members of the public, including participants on the OTP, can be troublesome, demanding and aggressive in their dealings with others, including pharmacists.
Unless and until Mr Bakarich receives ongoing and regular treatment to address his anger management issues, we share Dr Westmore's opinion that it is unknown what risk Mr Bakarich might pose if confronted by an aggressive or demanding patient. While the risk posed is low, it is nonetheless real and material.
In reaching that conclusion we have taken into account the positive evidence we have referred to above. This includes Mr Bakarich's long history of working as a pharmacist without incident with a range of people in the community, including those who exhibit challenging behaviour. We have also taken into account that Mr Bakarich is acutely aware that he has much to lose if he were again to assault a person. In addition, we have had regard to the character evidence, which supports Mr Bakarich's claim that the first and second offences are aberrations and he is not by nature a person who is aggressive or easily provoked. (See for example, the character reference given by Mr Morgan who has been in regular conduct with Mr Bakarich for over a decade. Mr Morgan attests that Mr Bakarich always presents as "calm, reserved and dignified with an unfailing level of courtesy". Mr Morgan and Mr Bakarich have played social football for over eight years. According to Mr Morgan, Mr Bakarich is "unruffled by banter from other players and always shows exemplary self-control and restraint". See also the testimonial provided by GP, Dr Melissa Collogan, 22 March 2019.)

[30]

Statutory framework and principles that govern the making of disciplinary orders

Where a complaint made under the National Law is proven or admitted, the Tribunal may exercise any of the powers in Sub-div 6, Div 3 of Pt 8 of the National Law. They include the powers to caution, reprimand, impose conditions on a practitioner's registration, order a practitioner to undergo medical or psychiatric treatment or counselling or to complete an educational course. Where, as in this case, the Tribunal is satisfied that the practitioner is guilty of professional misconduct and/or that the circumstances of an offence for which the practitioner has been convicted, render the practitioner unfit in the public interest to practise the practitioner's profession, the Tribunal may suspend or cancel the practitioner's registration: s 149C(1) of the National Law.
The National Law directs that in exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A. While the health and safety of the public is the paramount consideration, the jurisdiction exercised by the Tribunal is nonetheless protective not punitive. Any order designed to protect the public from a repetition of the conduct the subject of a complaint admitted or found proven, requires an evaluation of the seriousness of that conduct and the nature and extent of any justifiably apprehended harm that might be caused if it were to be repeated.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".
In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA stated at [20] that in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.

[31]

Submissions on form of disciplinary orders

The parties agree that the power to exercise disciplinary orders should be exercised but disagree about the form of orders the Tribunal should make.
The Commission urges the Tribunal to exercise the power to cancel Mr Bakarich's registration as a pharmacist and to prohibit Mr Bakarich from seeking review of that decision for a period of 12 months. The Commission contends that these orders are appropriate to both protect the public from the risk posed by Mr Bakarich and to denounce the offending conduct.
Mr Bakarich, on the other hand, urges the Tribunal not to cancel his registration but rather to issue a reprimand and to impose a fine. In addition, he proposes a stringent set of conditions that would require him to establish a therapeutic relationship with a general practitioner and treating psychiatrist, and to undertake any treatment they recommend. In addition, Mr Bakarich proposes a condition which would operate to authorise the treating GP and psychiatrist to notify the Pharmacy Council if he fails to comply with recommended medical treatment, or, if there is a significant change or deterioration in his mental health which may cause an adverse effect on his capacity to practise as a pharmacist. He undertakes to comply with those conditions and to submit to any other conditions the Tribunal considers appropriate.
In exercising the discretion to cancel or suspend his registration, Mr Bakarich contends that the adverse effects on himself, his family and the community served by the four pharmacies that he and his former wife own and operate in Newcastle, are relevant considerations. Mr Bakarich envisages that those pharmacies will probably be forced to close if his registration is cancelled. Two of the pharmacies are owned by Mr Bakarich. The other two are owned by Mr Bakarich's former wife who no longer wishes to own the pharmacies and plans to transfer them to Mr Bakarich as part of a property settlement. The four pharmacies provide a total of 285 "dosing positions" (positions available to patients participating in the OTP).
Mr Bakarich points to the closure of a number of pharmacies which supplied the OTP, in close proximity to the four pharmacies owned by him and his former wife. He estimates that the closure of those pharmacies, resulted in the loss of 400 dosing positions. Pointing to, among things, letters of support provided by Mr Tim Crakanthorp MP, the State member for Newcastle, he submits that it would not be in the interests of either the participating patients or the broader community, if his pharmacies were to close because it would significantly reduce the treatment options available to patients. Mr Bakarich understands from discussion with local health practitioners that patients seeking to commence the OTP in the public system face an eight-week wait.
Mr Bakarich also points to the not-for-profit medical centre he operates which provides medical and counselling services to patients participating in the OTP. He claims that if his registration is cancelled that service will no longer be financially viable, and probably close. As a result, over a hundred patients will be left without a prescribing doctor and forced into the public system.
The Commission challenges the claims made by Mr Bakarich about the loss of access to the OTP if his pharmacies were forced to close. Relying on a statement prepared by Mr Alexander Gavrilovic, the Principal Pharmaceutical Officer with the NSW Ministry of Health, it challenges Mr Bakarich's claim that he would be prevented from transferring ownership of the four pharmacies to a third party if his registration was cancelled and points out that if an exemption is granted by the Secretary of NSW Health, the pharmacies owned by Mr Bakarich and his wife, can potentially relocate and be on-sold. (As a result of recent legislative changes, OTP can only be supplied by pharmacies approved to supply pharmaceutical benefits. The legalisation grandfathered non-PBS pharmacies such as those owned by Mr Bakarich, that had been approved to supply OTP.) In addition, the Commission submits that in submissions Mr Bakarich has highlighted those pharmacies supplying the OTP in the Newcastle area, which have closed, but has failed to mention those pharmacies that continue to operate.

[32]

Conclusion

In exercising the discretion to make disciplinary orders, we are obliged to give paramount consideration to the health and safety of the public: s 3A of the National Law. While the paramount consideration, the health and safety of the public is not the only consideration. As Basten JA pointed out in Prakash, in formulating disciplinary orders the adverse consequences for the practitioner are also relevant.
An order cancelling Mr Bakarich's registration will undoubtedly have adverse consequences not only for Mr Bakarich and his family, but for current and future patients of the pharmacies that he and his wife own and the broader community. While as the Commission contends, it is not inevitable that cancellation will mean Mr Bakarich and his wife will not be able to on-sell their pharmacies, we accept that given the regulatory environment in which those pharmacies operate, there is considerable uncertainty about whether they will be able to be on-sold to a third party. The financial consequences likely to be suffered by Mr Bakarich, his former wife and their children, will be significant. Further, while the evidence falls short of establishing that patients who currently use those pharmacies will be unable to access an alternative OTP supplier, we accept that their closure will, result in the loss of a valuable service available to those patients and the community at large. In addition, we accept that the closure of those pharmacies is likely to jeopardise the ongoing viability of the associated medical centre and, if this occurs it will result in the loss of a valuable service available to current and future patients.
These considerations weigh heavily against the exercise of the power to cancel or suspend Mr Bakarich's registration. However, the issue of risk remains. We are not satisfied that currently there is no real and material risk that if confronted by an aggressive or demanding patient, Mr Bakarich might as he did with Person C, "snap" and respond aggressively. While the conditions proposed by Mr Bakarich go some way to reducing that risk, unless and until Mr Bakarich has undertaken structured and regular treatment and the success or otherwise of that treatment can be assessed, the risk he poses even with the proposed conditions, while low, is nonetheless unacceptable.
Therefore, we have concluded that it is proper and appropriate to make a cancellation order.

[35]

Should Mr Bakarich be ordered to pay all of the Commission's costs?

The parties agree that Mr Bakarich should be required to pay the Commission's costs but disagree about the proportion of the Commission's costs Mr Bakarich should be required to pay. The Commission contends that Mr Bakarich should be required to pay all of its costs. Mr Bakarich, on the other hand contends that he ought to be required to pay no more than 50% of the Commission's costs. He concedes that if, Complaint 4 is established (as occurred) he should be required to pay a slightly higher percentage of the Commission's costs.
Mr Bakarich argues that the Commission's actions in abandoning Complaint 3 and serving the statement prepared by Mr Gavrilovic one business day before the hearing resulted in him incurring additional and unnecessary costs. Complaint 3 alleged that Mr Bakarich had falsely declared in his annual registration renewal that there had been no change to his criminal history. Mr Bakarich contends that considerable time was spent preparing to respond to that complaint, which he asserts was arguably the most egregious allegation made about him, as it involved allegations of dishonesty. The Commission contends that the time thrown away in responding to Complaint 3 is unlikely to have been significant, as that complaint was intrinsically related to Complaints 2 and 4. In addition, the Commission points out that only a handful of the documents on which it relied in these proceedings, related to Complaint 3.
With respect to the costs relating to the statement prepared by Mr Gavrilovic, Mr Bakarich claims that the original version of that statement was replete with irrelevant material and accusations that had little or no foundation. He asserts that a great deal of time was spent in preparing to respond to that statement and negotiating with the Commission about making redactions to that document. In addition, he points out that it was not served until the final business day before the hearing, about five weeks outside the timetable set by the Tribunal.
In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40].
Whatever the reason for the Commission's decision to abandon Complaint 3, it would be unjust if Mr Bakarich was required to pay the Commission's costs in relation to that complaint. Having reviewed the correspondence in relation to Mr Gavrilovic's original statement it would appear, as Mr Bakarich asserts, that it suffered from defects as to form, contained irrelevant material and that both parties spent significant time negotiating about its admissibility. Some discount ought to be allowed because of the additional costs both parties incurred in dealing with Mr Gavrilovic's original statement.
In our view, the Commission's actions in abandoning Complaint 3, the late service of, and problems with Mr Gavrilovic's statement probably resulted in both parties incurring increased and wasted costs. The task of deciding what proportion of the costs is attributable to those two matters is extremely difficult. We have concluded that, taking the case as a whole, and bearing in mind that the Commission was successful in proving Complaint 4, that it would be appropriate to make an order that Mr Bakarich pay 70 per cent of the Commission's costs, as agreed or assessed.

Health Care Complaints Commission v Bakarich

At a glance

Court

Decision date

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Catchwords

Judgment (38 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (13)

Cited By (3)