Health Care Complaints Commission v Bui - [2021] NSWCATOD 77 - NSWCATOD 2021 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Bui

[2021] NSWCATOD 77

NCAT Occupational|2021-01-28

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2021-01-28

Catchwords

[1997] NSWSC 297 Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
(1992) 67 ALJR 170

Source

Original judgment source is linked above.

Catchwords

[1997] NSWSC 297 Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66(1992) 67 ALJR 170

Judgment (29 paragraphs)

[1]

Background

In December 2016, pharmacist, Jason Nguyen, reported to the Pharmaceutical Regulatory Unit of the NSW Ministry of Health (PRU) that he had been supplying medication without a prescription to fellow pharmacist, Mr Qui Van Bui, at The Star Sydney Casino. Mr Nguyen claimed he did so because he felt sorry for Mr Bui who "was losing a lot of money at the baccarat tables and was only working one day a week". In October 2019, a differently constituted Tribunal found Mr Nguyen guilty of professional misconduct and cancelled his registration as a pharmacist: Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166. Mr Bui vehemently denies those allegations.
The PRU interviewed Mr Bui and conducted an investigation. In a report dated 13 March 2017, the PRU concluded that there was insufficient evidence to substantiate Mr Nguyen's allegation of selling drugs to Mr Bui. However, the PRU found that Mr Bui had breached the regulations governing the dispensing of Schedule 4D drugs.
On 7 September 2017, following consideration of the PRU's report, the Pharmacy Council of New South Wales (the Council) exercised its power under s 150(1)(b) of the Health Practitioner Regulation National Law (NSW) (the National Law) to impose a series of conditions on Mr Bui's registration, including that he not possess, supply, dispense, administer or manufacture benzodiazepines. Those conditions remain in force to this day.
The Council referred its decision to the Health Care Complaints Commission (the Commission). After investigation, the Commission referred a complaint to the New South Wales Civil and Administrative Tribunal (NCAT) about Mr Bui. On the final day of the hearing, we gave the Commission leave to amend that complaint. Set out at Annexure A to these reasons, the Amended Complaint consists of three individual complaints. Mr Bui admits most of Complaint One (contravening several provisions of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (the PTGR) in dispensing Schedule 4D drugs). He denies Complaint Two (buying Schedule 4D drugs from Mr Nguyen without prescription with the intention of selling them to members of the public) and Complaint Three (professional misconduct).

[2]

Complaint One

Complaint One consists of 13 particulars and relates to Mr Bui's conduct in dispensing "prescribed restricted substances" and "drugs of addiction" between September 2015 and January 2017 while working at Emerald Pharmacy, St Marys, NSW. (the Pharmacy). Throughout that period he was working one day per week.
A prescribed restricted substance, commonly referred to as a Schedule 4D drug, is any substance listed in Appendix D of the PTGR. A drug of addiction, commonly referred to as a Schedule 8 drug, is any drug listed in Schedule 8 of the Poisons List as proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW). The prescribing and dispensing of Schedule 4D and Schedule 8 drugs are heavily regulated.
Particulars 1 and 2 allege that Mr Bui failed as required by the PTGR to record: the prescribing practitioner's details when dispensing medication on four occasions (Particular 1); and, on occasion, to record the supply of pseudoephedrine. Mr Bui denies Particular 1 and "admit[s] (sometimes) with explanation" Particular 2.
Particulars 3 to 7 allege that Mr Bui inappropriately dispensed various benzodiazepines to two patients. Mr Bui admits each particular "with explanation".
Particulars 8 to 13 allege that Mr Bui inappropriately dispensed benzodiazepines to five patients in circumstances where the Pharmacy was also dispensing methadone to those patients.
Complaint One alleges that the conduct particularised in that complaint amounts to "unsatisfactory professional conduct" within the meaning of s 139B(1)(a) of the National Law i.e. "conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". Mr Bui concedes that some of the admitted conduct the subject of Complaint One fell below the standard reasonably expected of a pharmacist of his level of training and experience but contends that it did not fall significantly below that standard.

[6]

Particular 1 of Complaint One

Particular 1 states: 1. On 29 September 2015, 4 November 2015, 30 December 2015 and 9 May 2016, at the Pharmacy, the practitioner dispensed schedule 4 restricted substances without recording the prescriber's details, contrary to clauses 55(1)(a) and 35(1)(h) of the Poisons and Therapeutic Goods Regulations 2008 (NSW) ('the PTRG').
A pharmacist who supplies a restricted substance on prescription must record in a manner approved by the Director-General, the name and designation of the person by whom it is issued: PTGR, cll 35(1)(h) and 55(1)(a).
The Commission concedes that there is insufficient evidence to establish, as alleged in Particular 1, that on 29 September 2015 and 30 December 2015, Mr Bui dispensed restricted substances without recording the name and details of the prescribing practitioner.
With respect to the dispensing of restricted substances on 4 November 2015 and 9 May 2016, Mr Bui denies failing to record the name and details of the prescribing practitioner. In submissions, dated 29 July 2019, provided to the Commission pursuant to s 40 of the Health Care Complaints Act 1993 (NSW) (the section 40 submissions), Mr Bui stated that he could not recall dispensing the subject prescriptions on 4 November 2015 and 9 May 2016, which bear his initials. He stated that the most likely explanation for his initials appearing on the dispensing records for those prescriptions was that another pharmacist had dispensed the medication, using his log-in details in the Pharmacy's electronic dispensing system, AMFAC. Mr Bui claimed that the log-in details of AMFAC users were not password-protected.
With respect to the dispensing on 9 May 2016, Mr Bui points out that 9 May 2016 was a Monday, and he rarely worked on Mondays.
Mr Bui claims that he understands AMFAC did not permit a prescription to be dispensed unless and until the user enters the prescriber's name and contact details. In support, he points to an email sent by Z Software's support software manager: It is highly unlikely the scripts were converted to our system without a doctor saved but it's possible that some scripts only have prescriber number saved and no name for a doctor. (The Pharmacy converted to Z Software from AMFAC on 23 May 2016.)
In cross-examination, when taken to the following extract of the transcript of his interview with the PRU on 19 January 2017 (the PRU interview), in which he stated that he understood the PTGR did not require the prescriber's name to be entered into the dispensing records if their provider number was entered, Mr Bui stated that he misunderstood the question and thought the interviewing officer was referring to a "casual doctor": MS WEI: Because on two occasions, on 4 November 15, and 9 May 2016, there were two dispenses attributed to you that haven't had a doctor's name recorded in the dispensing records. MR BUI: Okay MS WEI: I'm talking about this one, and this one. For this patient, Duromine 40mg - - - MR BUI: That can happen when you put in a casual doctor - - - MS DOLAN: You can't put in casual doctor. That's against our legislation. You must - - - MS WEI: It should show - - - MR BUI: The system - yes, because sometimes it's the script from an outside suburb, because you just enter it in, and put the prescribing number in there, and - - - MS DOLAN: You can't just put a provider number - - - MR BUI: That's what I've been doing - - - MS DOLAN: No. By law, it has to have the doctor's name. Prescribers numbers mean nothing to us. MR BUI: I didn't know that, because the system that I use - - - (Emphasis added.)
Mr Bui's claim that that he understood that AMFAC did not permit a prescription to be dispensed without the prescriber's name being entered in the dispensing records is inconsistent with statements he made during the PRU interview on 19 January 2017: MS DOLAN: So, the one thing you're going to get out of this is that if you get a prescription and you've never had them before, you have to fill in everything. MR BUI: Okay. MS WEI: So, when you're provided with a prescription, what the system - - - MR BUI: So, the system should make it compulsory for you to put all that - - - MS WEI: So, that's why I'm asking you whether the system allows you to bypass - - - [putting in prescribing doctor's details] MR BUI: It does. Yes. It does. That's why we thought - because, in busy times, we - it's common practice, everyone tends to do that. I didn't realise you have to enter everything - - - MS DOLAN: Yes. MR BUI: - - - because when you select that you want to put a doctor in permanently, you've got to fill out every single thing, address, phone number - everything. So, that takes some time - - - MS DOLAN: Well, that's - - - MR BUI: Yes I see what you're saying, but I'm just saying in practice, in busy times, you just have to - - - MS DOLAN: Well, you shouldn't - Z-Dispensing should not allow for you to - - - MR BUI: (Indistinct) working for years. Every system I've used allows you to do that. I never knew that it was compulsory that you had to put all that in. If the system allows you, I thought it was just - it would let you. MS WEI: No. MR BUI: Now I know, but I didn't really know that before. Then, you should make all the software companies make that compulsory. MS DOLAN: Well, we'll have to write to them because this is becoming more and more evident. MR BUI: Therefore, we have to do it. Yes. MS WEI: It is - the software companies are only responsible to make sure that - - - MR BUI: Yes, but none of that - what I can tell you from years of working, none of them make it compulsory. They let you bypass. (Emphasis added.)

[8]

Does the proven conduct amount to unsatisfactory professional conduct?

In evaluating whether the proven conduct constitutes unsatisfactory professional conduct within the meaning of s 139E(1)(a) of the National Law we must: (i) identify the standard "reasonably expected" of a pharmacist of an equivalent level of training or experience to Mr Bui (the relevant standard), and (ii) evaluate whether the admitted or proven conduct demonstrates that the knowledge, skill or judgment possessed, or care exercised, by Mr Bui in the practice of his profession, fell "significantly below" that standard.
Mr Bui was first registered as a pharmacist in 1999 and holds a Bachelor's degree in Pharmacy from the University of Sydney. At the time of the conduct the subject of the Complaint, he had been practising as a pharmacist for about 15 years in hospital and community pharmacies and working part-time at the Pharmacy for about two years.
At the request of the Commission, pharmacist Nina Benson prepared a report dated 6 May 2019, in which she provided an opinion about whether Mr Bui's conduct fell below the relevant standard and, if so, whether that departure was "significantly below", and whether it invited her "strong criticism".
With respect to Particular 1, Ms Benson concluded that Mr Bui's failure to record the prescriber's name and details is conduct that falls significantly below that required of a registered pharmacist and warrants strong criticism.
Ms Benson's report was admitted without objection and she was not required for cross-examination. Mr Bui did not lead any expert evidence. As the Commission points out "evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact": Ghosh v Medical Council of New South Wales [2020] NSWCA 122 per Brereton JA at [69].
There can be no argument that the proven conduct the subject of Particular 1 demonstrates that the care exercised by Mr Bui fell below the relevant standard. However, we do not share Ms Benson's opinion that it falls significantly below that standard. While the failure to record the name of the prescriber when dispensing a prescription is no small matter we note that the evidence establishes that it occurred on only two occasions over an eight-month period, in a busy pharmacy which was dispensing about 100 prescriptions per day.
We are not satisfied that the proven conduct the subject of Particular 1 amounts to unsatisfactory professional conduct.

[13]

Does the admitted conduct amount to unsatisfactory professional conduct?

In dispensing the subject prescriptions, Mr Bui deferred to Dr Phan and failed to exercise independent judgment. Given his level of experience and training it ought to have been glaringly evident that the amounts and combinations of benzodiazepines being prescribed to Patient A were concerning and at the very least warranted the issue being raised with Dr Phan. Mr Bui's failure to do so demonstrates a flawed understanding of the role of a registered pharmacist. In these proceedings, he stated that it has been a real "eye opener" for him to realise that pharmacists must evaluate whether the subject prescribing was appropriate and if they had concerns, to raise them with the prescriber.
In our view, in the circumstances presented by Particular 3, the standard reasonably expected of a pharmacist of Mr Bui's skill and experience would have been to at least raise with the treating practitioner concerns about the quantity of diazepam prescribed, especially given that other benzodiazepines were concurrently being dispensed to Patient A.
The conduct the subject of Particular 3, taken together, in our view falls significantly below the relevant standard.
Likewise, in our view the conduct the subject of Particular 4 falls significantly below the relevant standard. As conceded by Mr Bui, the high quantity of nitrazepam dispensed to Patient A between 7 July 2015 and 28 September 2016 together with the fact that throughout that period Patient A was being supplied with other benzodiazepines, ought to have raised concerns that Patient A may have been, or was at risk of becoming, dependent on or addicted to benzodiazepines. The standard reasonably expected of a practitioner of Mr Bui's training and experience would be to recognise that potential, and at least to raise those concerns with the prescriber. We do not understand Mr Bui to dispute that his conduct fell significantly below the relevant standard.
We find the conduct the subject of Particulars 3 and 4, assessed individually, amounts to unsatisfactory professional conduct.

[14]

Particulars 5, 6 and 7 of Complaint One

Mr Bui admits Particulars 5, 6 and 7 "with explanation". Each relate to the dispensing of benzodiazepines, namely temazepam, diazepam and nitrazepam, to Patient B. Clause 54 of the PTGR states that a pharmacist must not supply any restricted substance in a quantity that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
Particular 5 concerns Mr Bui's conduct in dispensing to Patient B approximately 625 tablets of temazepam (10mg) between 30 June 2015 and 2 September 2015 (a period of 62 days). Had the directions given by the prescriber, Dr Phan, been followed (three tablets per night) the amount dispensed should have lasted approximately 208 days. The recommended maximum dose for temazepam (10mg) is two tablets per night.
In addition, throughout this period Patient B made multiple requests for "supply at short intervals", which the Commission contends Mr Bui should have recognised as "drug seeking behaviour". Mr Bui claimed he was in regular contact with Dr Phan about Patient B but concedes he failed to record any of those "clinical interactions" with Dr Phan.
Particular 6 concerns Mr Bui's conduct in dispensing approximately 500 tablets of nitrazepam (5mg) to Patient B between 7 September 2015 and 26 November 2015 (a period of 75 days). Had Dr Phan's directions been followed (2 tablets per night) the amount dispensed should have lasted 250 days. As with Particular 5, Patient B made multiple requests for supply at short intervals. In addition, Mr Bui failed to record any of the claimed clinical interactions with Dr Phan.
Particular 7 concerns Mr Bui's conduct in dispensing approximately 250 tablets of diazepam (10mg) to Patient B between 30 June 2015 and 26 November 2015 (a period of 75 days), in circumstances where he failed to have regard to Patient B's dispensing history. That history revealed drug-seeking behaviour and addiction issues; throughout the five months temazepam and nitrazepam were concurrently being dispensed to Patient B.

[18]

Do the clinical guidelines for methadone stipulate that diazepam is the only benzodiazepine that should be concurrently prescribed to a patient?

Sub-particular 8(c) and the corresponding particulars state: "clinical guidelines for Methadone stipulate that diazepam is the only benzodiazepine that should be prescribed"
In support of that contention, the Commission relies on NSW Health's "Opioid Treatment Program: Clinical Guidelines for methadone and buprenorphine treatment" (November 2006), rescinded on 30 July 2018 (the Methadone Guideline). The stated purpose of that guideline is "to provide up to date policy and clinical practice guidelines in New South Wales for opioid treatment programs to treat heroin and other opioid dependence." At p 56 the Methadone Guideline states: • Prescribing benzodiazepines to patients who are dependent on benzodiazepines as well as opioids may be necessary, but caution must be exercised. Patients with benzodiazepine dependence frequently acquire prescriptions from multiple sources: register with the Health Insurance Commission's Prescription Shopping Information Service and try to verify the patient's history of obtaining benzodiazepines before prescribing. • The goal of treatment is safe withdrawal from benzodiazepines, not patient comfort. Diazepam should be the only benzodiazepine prescribed, all doses should be administered under supervision as a single daily dose, and while receiving benzodiazepines patients should not receive takeaway doses of methadone. Never initiate benzodiazepine treatment at the same time as methadone maintenance, as this is the period in which risk of overdose is greatest. (Emphasis added.)
Mr Bui points out that the Methadone Guideline uses the word "should" not "must" and cannot be read to mandate that diazepam is the only benzodiazepine that can be prescribed to OSP patients.
We agree with Mr Bui's interpretation. It follows that these sub-particulars are not proven. But even if we were to adopt the interpretation the Commission urges us to adopt, we reject the contention that dispensing a benzodiazepine other that diazepam to OSP patients, demonstrates that the knowledge, skill or judgment possessed, or care exercised, by Mr Bui fell significantly below the relevant standard. In reaching that conclusion we note that the Methadone Guideline is 196 pages in length and contains a detailed analysis of wide ranging clinical issues. It appears to be primarily targeted at medical practitioners.
Ms Benson did not comment on whether in her view the standard of knowledge reasonably expected of a pharmacist of Mr Bui's level of training and experience would be to be familiar with this part of the Methadone Guideline. Nor did the Commission adduce any evidence about whether in 2015 the Methadone Guideline had been circulated to NSW pharmacists or that this particular part of the Guideline had been brought to their attention.
For these reasons, we are not persuaded that Mr Bui's apparent lack of knowledge of this part of the Methadone Guideline fell significantly below the relevant standard.

[22]

Is Complaint Two proven?

In Complaint Two the Commission alleges that between July 2015 and September 2016 Mr Bui purchased and received Schedule 4D drugs from Mr Nguyen outside the practice of pharmacy in circumstances where: 1. there was no valid prescription; 2. Mr Bui intended to distribute the purchased drugs to members of the public, and; 3. the supply occurred at The Star Sydney Casino (the Casino) from the boot of Mr Nguyen's car.
Mr Bui vehemently denies Complaint Two.
Complaint Two rests largely on the evidence given by Mr Nguyen.
In early 2016, a person made an anonymous complaint to NSW Crime Stoppers, that "Jason" was selling prescription medication without a prescription. On 22 November 2016, when contacted by the PRU, Mr Nguyen admitted that he "sold them without prescription to a man at the casino who claimed to be a pharmacist". Two days later, when formally interviewed by the PRU, Mr Nguyen repeated that claim and identified Mr Bui by name.
In a letter dated 11 December 2016, apparently provided to the PRU, Mr Nguyen claimed he had supplied another pharmacist, Mr Bui, with a "number of Schedule 4D drugs without a prescription at the Star Casino". He claimed he did so because he felt sorry for Mr Bui who "was losing a lot of money at the baccarat tables and was only working one day a week". He stated that his own financial gain "was very minimal" and the medications were sold to Mr Bui at cost price "rounded up to the nearest $5". He stated that at that time he was making "irrational and reckless decisions" and his gambling addiction had "escalated". In that letter Mr Nguyen provided Mr Bui's bank account details and mobile phone number.
In October 2019, following investigation by the PRU and later the Commission, a differently constituted Tribunal found Mr Nguyen guilty of professional misconduct and cancelled his registration as a pharmacist: Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166. At [11] and [12] of that decision the Tribunal summarised the admissions made by Mr Nguyen in those proceedings: [11] … In the period leading up to the supply of the illicit drugs which the Respondent [Mr Nguyen] has admitted, the Respondent had been gambling significantly at the casino at Sydney and in the six months prior to commencing the illicit supply of drugs, he had lost $600,000.00. His evidence was, in relation to Complaint One, that he met a person in the casino whose name was Person B [Mr Bui] who was also gambling in the casino and who approached the Respondent to provide him with the drugs, the subject of the complaint. Person B had shown the Respondent his AHPRA registration as a pharmacist and had indicated that he was only working one day a week and that he too had been losing money. The Respondent suggested to the Tribunal that the basis on which he was providing the drugs to Person B was that he thought that as a pharmacist, it was simply a transfer of drugs from one pharmacy to another. However, in cross‑examination, he admitted that he knew that the drugs were being provided to Person B for illicit purposes and that they were being sold to the public by Person B. [12] The Respondent also told the Tribunal that he had received very little profit on the supply of the drugs and that essentially he was only rounding up to the nearest $5.00 from a wholesale price when selling them to Person B.
In a statement prepared for these proceedings dated 29 May 2020 Mr Nguyen claimed: 1. he got to know Mr Bui in around late 2014 or early 2015 at the "Star City Casino tables". He claimed that from time to time he and Mr Bui dined together at the Casino; 2. in or about the second quarter of 2014, he was approached by Mr Bui who showed him his "pharmacy/APHRA card". The following exchange then took place: Mr Bui: "I have people that are interested in buying more [Rivotril] [a Sch 4D drug, aka clonazepam], and I need more of it." "Are you interested in supplying me with some?" Mr Nguyen: "Look, I'll have a think about it and let's see." 1. after thinking about that approach for a few weeks he decided to "help" Mr Bui; 2. in the first transaction he gave Mr Bui about 10 bottles of Rivotril, and, in subsequent transactions, 20 or 30 bottles; 3. at first Mr Bui usually asked for clonazepam (2mg) and slowly it progressed to Serepax (30mg), diazepam (5mg) and on occasion, temazepam. Mr Nguyen claimed that Mr Bui never asked for Schedule 8 drugs (drugs of addiction), anabolic steroids, pseudoephedrine or "anything like that"; 4. he did not deliver a prearranged amount of medication to Mr Bui rather "whatever stock I had at the pharmacy". Mr Bui took "everything" and never counted or checked what was in the bag; 5. he never attended the Casino just to meet Mr Bui, only meeting him if he was there to play; 6. all transactions took place in the "high rollers" car park within the Casino. Mr Nguyen suggested that particular car park because it was smaller than the other car parks within the Casino and easier to find a person in; 7. before each transaction he would ring Mr Bui and tell him to meet him in the car park. Alternatively, if when he arrived Mr Bui was playing, he would go into the Casino and wait for Mr Bui and when he had finished they would go down to the car park together; 8. he delivered the medication to Mr Bui in an opaque Pharmacy Guild plastic bag, which he usually double bagged. Mr Bui put the bag in his car, and they then went up to the tables together; 9. the transactions were unmemorable. None "stood out"; 10. throughout the period the transactions took place, he usually went to the Casino after he finished work on a Wednesday at 9pm. Mr Bui typically rang him at the Pharmacy to tell him he was going to the Casino; 11. at first the transactions occurred about once every three weeks and over time once a month. Towards the end he felt "it was getting out of hand what Mr Bui was asking [of] me". He did not want to continue and started reducing the frequency of the transactions; 12. he never recorded the drugs he gave to Mr Bui or what Mr Bui paid or owed him; 13. most if not all of the transactions were on a cash basis and he received about $2,000 from Mr Bui for "any one transaction"; 14. from time to time he transferred money from his bank account to Mr Bui's bank account in exchange for gambling chips. He did this when he exceeded his $2,000 daily cap (for gambling chips) or "maxed out" on his savings card.
Mr Nguyen attached to his statement a bank statement showing a transfer from Mr Bui of $4,000 on 15 July 2016. Mr Nguyen stated he was not sure whether that payment was for the sale of medication or repayment of a loan.
When interviewed by the PRU on 21 November 2016, Mr Nguyen said he sold drugs to Mr Bui for "not a lot more than wholesale… just cost price plus a few dollars". He admitted stealing the drugs from the pharmacy where he was then working, the Carlton Day and Night Pharmacy "to get extra cash basically … it wasn't really financial gain". He claimed he stopped gambling about six weeks ago, was now seeing a psychologist and had banned himself from the Casino. He claimed that the trigger for that decision was the breakdown of his marriage. He said his wife, a "stay at home mum" to their three young children, had trusted him completely to run the Carlton Day and Night Pharmacy, which she owned.
In cross-examination, Mr Nguyen agreed that throughout the period July 2015 to September 2016 he transferred about $19,000 to Mr Bui, usually in amounts of about $2,000, to obtain gambling chips or cash. He claimed that Mr Bui was incurring significant gambling debts and, in addition, was increasing the amount he was borrowing from him.
In cross-examination Mr Nguyen agreed that the high rollers' car park, where the transactions allegedly took place, was probably monitored by CCTV.

[24]

Submissions

The Commission urges us to accept Mr Nguyen's version of events, and to find Complaint Two proven.
The Commission submits that Mr Nguyen has given a consistent and plausible account of his dealings with Mr Bui since first being contacted by the PRU on 22 November 2016, when being interviewed by the PRU two days later, and when giving evidence in the NCAT proceedings which resulted in the cancellation of his registration and in these proceedings.
Second, the Commission contends that Mr Nguyen has nothing to gain by falsely accusing Mr Bui of purchasing drugs from him and nor was that suggested to him in cross-examination. The Commission contends that having been found guilty of professional misconduct, a finding by this Tribunal that Mr Bui purchased drugs from Mr Nguyen would not reduce Mr Nguyen's culpability and nor was that suggestion put to him in cross-examination. Nor was it suggested to Mr Nguyen that he might be motivated by animus towards Mr Bui.
In contrast to Mr Nguyen, the Commission contends that Mr Bui was not an impressive witness and that his evidence amounts to a "bare denial".
The Commission contends that Mr Bui's evidence about his gambling habits was evasive. The Commission points out that notwithstanding that Mr Bui's only income between July 2015 and June 2016 was a modest $14,000, having worked one or two days per week as he was unable to work full-time following an assault which occurred a few years earlier, he claimed not to know whether the amount he gambled each month exceeded $10,000.
Second, the Commission argues that Mr Bui's claim that he was an occasional social gambler is implausible and inconsistent with his admission that he met Mr Nguyen at the Casino's VIP gambling room and on at least five occasions while at the Casino, transferred money or gave gambling chips to Mr Nguyen. In addition, it is inconsistent with his claim that the regular cash deposits made into his account were from his gambling winnings.
Third, the Commission contends that Mr Bui's explanation for having $500,000 cycling through his bank account between July 2015 and June 2016 - that it came from transfers from a home loan account and excess cash deposited after attending the Casino - cannot be accepted. The Commission points out that during that period Mr Bui's income was a modest $14,000, and, in addition, he failed to provide the Tribunal with any material to support his claim of transferring funds from his home loan account to his savings account. Notably, he failed to produce any records of the former in answer to the summons issued at the request of the Commission for "Your bank account statements for the period July 2015 to September 2016".
Finally, the Commission argues that the frequency of phone calls between Mr Bui and Mr Nguyen, as evidenced by Mr Nguyen's phone records for the period February 2016 to October 2016, suggests a closer relationship than that admitted by Mr Bui. Notably, when questioned about that relationship at the s 150 proceedings, Mr Bui made no mention of his financial dealings with Mr Nguyen and denied having his phone number.
In contrast, Mr Bui argues that the evidence does not support a finding that, as alleged, he purchased drugs from Mr Nguyen.
Mr Bui points out that he has consistently denied that allegation and apart from the entry in his bank account statement showing a transfer from Mr Nguyen in the amount of $4,000, there is no independent evidence that he gave money to Mr Nguyen. He submits that the Commission is not assisted by the evidence of the transfers made into his bank account by Mr Nguyen, pointing out that Mr Nguyen agrees that when he ran out of gambling chips or exceeded his daily ATM withdrawal limit, Mr Nguyen transferred money into his account in exchange for cash or chips. In addition, Mr Bui contends that Mr Nguyen's claim of receiving $2,000 for each sale is inconsistent with other parts of his evidence and simply "nonsensical".
In circumstances where the Commission bears the evidentiary onus, where it is a case of word against word and tellingly the Commission has failed to obtain CCTV footage of the claimed car park sales, Mr Bui contends that the Tribunal could not be satisfied that those sales occurred.

[25]

Consideration

The Commission bears the burden of proving the matters particularised in Complaint Two, on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more they will affect the consideration.
As the Commission points out, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [2], the High Court described generalisations about the need for "clear and cogent evidence to prove matters of the gravity of fraud or crime" as "likely to be unhelpful and even misleading". At [3] the plurality stated: When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading.
Here, while Mr Nguyen and Mr Bui gave conflicting accounts about the central fact in issue - whether Mr Nguyen sold Schedule 4D drugs to Mr Bui - it is common ground that they met in late 2014/early 2015; on a reasonably regular basis they spent time together at the Casino; each gambled at the Casino, sometimes with the other; and between July 2015 and September 2016 Mr Bui transferred about $19,000 to Mr Nguyen in exchange for gambling chips or cash.
We think it more probable than not, as the Commission contends, that in these proceedings Mr Bui attempted to downplay the extent to which he gambled and interacted with Mr Nguyen during the period the subject of Complaint Two (July 2015 to September 2016).
There are other troubling aspects of Mr Bui's evidence, most notably his failure to provide a plausible account for the very large amount of money cycling through his bank account during the subject period. Also concerning is Mr Bui's failure to adduce evidence to support his claim that he transferred significant amounts of money from his home loan account to his savings account. Mr Bui elected not to provide any financial records in these proceedings. The only records provided to the Tribunal were those Mr Bui was compelled to produce in answer to a summons issued at the request of the Commission.
As emphasised by the Commission, since being contacted by the PRU in November 2016 Mr Nguyen has given a consistent account of the alleged sale of drugs to Mr Bui. Nonetheless, there are aspects of that account which are troubling, in particular Mr Nguyen's claim that he received about $2,000 from Mr Bui for each transaction. [1] That claim sits uncomfortably with Mr Nguyen's claim of giving Mr Bui "20 or 30 bottles" in each transaction after the first [2] and being paid "the cost price plus a few dollars": the wholesale price "rounded up to the nearest $5". Based on Mr Nguyen's estimate of the wholesale price for Rivotril [3] being $23 [4] , at most he could have expected to receive about $750 per transaction (30 bottles x $25). In cross-examination, Mr Nguyen attempted to explain this apparent discrepancy by claiming $2,000 was "an average figure". Later he volunteered that Mr Bui "gave me what he thought was reasonable".
Given the illicit nature of the alleged transaction, it is unremarkable that Mr Nguyen was unable to point to any documentary material of the claimed transactions. His claim of selling drugs to Mr Bui to fund his gambling habit and his growing need for cash is entirely plausible. Nonetheless, we are left with a significant discrepancy between the amount Mr Nguyen claims he received from Mr Bui for each transaction and his claim about the basis for the calculation of the amount paid for those transactions. In our view, a discrepancy of that magnitude cannot be explained away, as the Commission suggests, by Mr Nguyen's claim that the $2,000 figure was merely "an average". The issue raised by this discrepancy is not merely, as the Commission suggests, the plausibility of Mr Bui paying $2,000 for drugs with a wholesale price of about a third of that amount. We accept that it is entirely plausible that a person would be prepared to pay significantly above the wholesale price to obtain Schedule 4D drugs without a prescription for the purpose of on-selling them at a far higher price. Nonetheless, this does not answer Mr Nguyen's claim of receiving $2,000 from Mr Bui for each transaction in circumstances where, based on his own calculation, he was charging a few dollars over the wholesale price, which translates to a maximum amount of about $750 per transaction. It seems more likely that, if Mr Nguyen was supplying the drugs to Mr Bui, he was making much more profit than he admitted. Given that he was addicted to gambling his incentive to maximise his profit was high.
Although we think Mr Nguyen probably has not told the truth about his profits, probably with the intention of appearing less culpable than he actually was, his evidence was otherwise very plausible. After being 'dobbed in' he admitted stealing drugs from the pharmacy at which he worked and supplying them to another person for illegal supply purposes. He identified a person whom he met and gambled with at the Casino as the purchaser of the drugs, namely Mr Bui. He had a gambling addiction. He knew the phone number and bank details of the person to whom he said he was supplying drugs. Significant amounts of money were transferred to Mr Bui who admitted socialising with Mr Nguyen at the Casino. All of these pieces of evidence support Mr Nguyen's account.
Mr Bui's account is quite implausible. He tried as hard as he could to assert that Mr Nguyen was merely a casual gambling acquaintance. It is strange then that not only did he share his bank account details with Mr Nguyen, but transfers of thousands of dollars passed between them. These banking arrangements do not have the appearance of a casual social connection. Mr Bui's claim that large transfers of money through his personal account could be explained by transactions on his home loan account was never corroborated by business records. If this claim is true, it would be easy to prove. In such a situation an adverse inference can more readily be drawn from an absence of evidence and the absence of a satisfactory explanation of the lacuna in the evidence.
Once Mr Nguyen admitted his wrongdoing, he had an incentive to give full details of the misconduct. He identified Mr Bui. The evidence presented support that claim. Mr Bui's evidence did little to dispel the shroud of suspicion that surrounds him. While the Commission's case would have been strengthened had CCTV footage of the car park sales been obtained, given the totality of the evidence, the absence of such evidence is not fatal to establishing that the sales occurred. We are satisfied, on the balance of probabilities, that the second complaint against Mr Bui is made out.
Plainly, that conduct is "improper or unethical conduct" relating to the practice of pharmacy. We find it amounts to unsatisfactory professional conduct within the meaning s 139B(1)(l) of the National Law.

[26]

Does the proven or admitted conduct amount to professional misconduct?

"Professional misconduct" is defined by s 139E of the National Law to mean: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Our task is to decide whether the conduct found by us to amount to unsatisfactory professional conduct amounts to "professional misconduct", that is, whether it is of a "sufficiently serious nature" to justify an order for suspension or cancellation. This requires us to make an evaluative judgement: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. 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.
The offending conduct is to be measured by the extent to which it departs from proper standards and not by reference to the worst cases. To do the latter would risk the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWSC 297.
We do not understand Mr Bui to dispute that Complaint Two, if found proven, amounts to professional misconduct. That concession is correctly made.
While no single instance of unsatisfactory professional conduct the subject of Complaint One is sufficiently serious to justify suspension or cancellation, when considered as a whole, in our view that conduct is sufficiently serious to justify such an order. In reaching that conclusion we note this was not a case of a one-off contravention of the PTGR but of multiple contraventions over an extended period. While not in the nature of deliberate or dishonest conduct, considered in aggregate those contraventions were nonetheless serious.
We are satisfied that, considered as a whole, the conduct found by us to amount to unsatisfactory professional conduct is of a sufficiently serious nature to justify the suspension or cancellation of Mr Bui's registration.

[28]

ANNEXURE "A" The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Qui Van Bui ("the practitioner") of Shop 3, 85 Main Street, Westbrook, Queensland, being a pharmacist registered under the National Law, BACKGROUND TO COMPLAINT The practitioner was first registered as a pharmacist in Australia on 11 March 1999. From 2013 until June 2017 he was employed on a part-time basis at the Emerald Pharmacy in St Marys NSW ('the Pharmacy'). He is currently the proprietor of a pharmacy in Westbrook, Queensland. On 30 October 2019, Jason Nguyen, a pharmacist and the manager of Carlton Day and Night Pharmacy was found guilty of unsatisfactory professional conduct and professional misconduct under the National Law (see Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166). The subject matter of the complaint included the supply, without valid prescriptions, of a large quantity of schedule 4 and 4D drugs to the practitioner. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. PARTICULARS OF COMPLAINT ONE 1. On 29 September 2015, 4 November 2015, 30 December 2015 and 9 May 2016, at the Pharmacy, the practitioner dispensed schedule 4 restricted substances without recording the prescriber's details, contrary to clauses 55(1)(a) and 35(1)(h) of the Poisons and Therapeutic Goods Regulations 2008 (NSW) ('the PTRG'). 2. Between 22 March 2016 and 20 January 2017 the practitioner failed on occasion to record the supply of pseudoephedrine contrary to clauses 24 and 55 of the PTGR. PATIENT A 3. On 8 July, 21 July and 28 July 2015 the practitioner inappropriately dispensed diazepam, a schedule 4D drug, to Patient A, in circumstances where: a. 50 tablets had previously been dispensed on 2 July 2015; b. Patient A had also been supplied with other benzodiazepines, temazepam and nitrazepam over the same period. 4. Between 7 July 2015 and 28 September 2016, the practitioner inappropriately dispensed nitrazepam on around 14 occasions to Patient A, in circumstances where: a. Patient A had also been supplied with other benzodiazepines, temazepam and diazepam over the same period. b. the quantities dispensed raise concerns about potential dependence and addiction in the context of Patient A's complete dispensing history. PATIENT B 5. Between 30 June 2015 and 2 September 2015 the practitioner inappropriately dispensed the schedule 4D drug, temazepam, to Patient B, in a quantity that did not accord with recognised therapeutic standards, contrary to clause 54 of PTGR, in circumstances where: a. the recommended dose is 1 and up to a maximum of 2 tablets per night; b. the directions for use on the prescriptions were for 3 tablets per night; c. the practitioner dispensed 625 tablets to Patient B over a 62 day period; d. Patient B made multiple requests for supply at short intervals which the practitioner should have recognised as drug seeking behaviour; e. The practitioner failed to record any clinical interactions with the prescriber. 6. Between 7 September 2015 and 26 November 2015 the practitioner inappropriately dispensed the schedule 4D drug, nitrazepam, to Patient B, in a quantity that did not accord with recognised therapeutic standards, contrary to clause 54 of the PTGR, in circumstances where: a. the directions for use were 2 tablets per night; b. the practitioner dispensed 500 tablets over a 75 day period; c. Patient B made multiple requests for supply at short intervals which the practitioner should have recognised as drug seeking behaviour; d. the practitioner failed to record any clinical interactions with the prescriber. 7. Between 30 June 2015 and 26 November 2015 the practitioner inappropriately dispensed the schedule 4D drug, diazepam, to Patient B in circumstances where: a. the practitioner failed to have regard to Patient B's dispensing history which disclosed drug seeking behaviour and addiction issues; b. Patient B had also been dispensed the benzodiazepines temazepam and nitrazepam over the same period; c. benzodiazepines have addictive sedative and hypnotic effects and when taken in combination can cause cumulative toxicity. PATIENT C 8. On 14 August 2015 the practitioner inappropriately dispensed the schedule 4D drug, oxazepam, to Patient C, in circumstances where: a. Patient C had been prescribed Methadone on the Opioid Substitution Program ('the ODP') which was dispensed by the Pharmacy from at least 2 July 2015; b. concurrent use of methadone and benzodiazepines carries an increased risk of sedation and overdose; c. clinical guidelines for Methadone stipulate that diazepam is the only benzodiazepine that should be prescribed; d. the oxazepam and the methadone were prescribed by different medical practitioners and the practitioner failed to inform either prescriber of the fact that another drug had been prescribed; e. the dispensing was not in accordance with recognised therapeutic standards, contrary to clause 54 of the PTGR. 9. On 29 September 2015 the practitioner inappropriately dispensed the schedule 4D drug, clonazepam, to Patient C, in circumstances where: a. Patient C had been prescribed Methadone on the Opioid Substitution Program ('the ODP') which was dispensed by the Pharmacy from at least 2 July 2015; b. concurrent use of methadone and benzodiazepines carries an increased risk of sedation and overdose; c. clinical guidelines for Methadone stipulate that diazepam is the only benzodiazepine that should be prescribed; d. the clonazepam and the methadone were prescribed by different medical practitioners and the practitioner failed to inform either prescriber of the fact that another drug had been prescribed; e. the dispensing was not in accordance with recognised therapeutic standards, contrary to clause 54 of the PTGR. PATIENT D 10. Between 21 July 2015 and 4 January 2017 the practitioner inappropriately dispensed the schedule 8 drug, alprazolam, to Patient D, in circumstances where: a. Patient D had been prescribed Methadone on the Opioid Substitution Program ('the ODP') which was dispensed by the Pharmacy from at least 20 August 2015; b. concurrent use of methadone and benzodiazepines carries an increased risk of sedation and overdose; c. clinical guidelines for Methadone stipulate that diazepam is the only benzodiazepine that should be prescribed; d. the alprazolam and the methadone were prescribed by different medical practitioners and the practitioner failed to inform either prescriber of the fact that another drug had been prescribed; e. the dispensing was not in accordance with recognised therapeutic standards, contrary to clause 109 of the PTGR. PATIENT E 11. On 4 August 2015 the practitioner inappropriately dispensed the schedule 8 drug, alprazolam, to Patient E, in circumstances where: a. Patient E had been prescribed Methadone on the Opioid Substitution Program ('the ODP') which was dispensed by the Pharmacy from at least 3 July 2015; b. concurrent use of methadone and benzodiazepines carries an increased risk of sedation and overdose; c. clinical guidelines for Methadone stipulate that diazepam is the only benzodiazepine that should be prescribed; d. the alprazolam and the methadone were prescribed by different medical practitioners and the practitioner failed to inform either prescriber of the fact that another drug had been prescribed; e. the dispensing was not in accordance with recognised therapeutic standards, contrary to clause 109 of the PTGR. PATIENT F 12. On 14 August 2015 the practitioner inappropriately dispensed the schedule 4D drug, oxazepam, to Patient F, in circumstances where: a. Patient F had been prescribed Methadone on the Opioid Substitution Program ('the ODP') which was dispensed by the Pharmacy from at least 7 July 2015; b. concurrent use of methadone and benzodiazepines carries an increased risk of sedation and overdose; c. clinical guidelines for Methadone stipulate that diazepam is the only benzodiazepine that should be prescribed; d. the oxazepam and the methadone were prescribed by different medical practitioners and the practitioner failed to inform either prescriber of the fact that another drug had been prescribed; e. he failed to clarify and record the directions for use with the prescriber; f. the dispensing was not in accordance with recognised therapeutic standards, contrary to clause 54 of the PTGR. PATIENT G 13. Between 13 August 2015 and 5 October 2016 the practitioner inappropriately dispensed the schedule 4D drug, oxazepam, to Patient G on 5 occasions, in circumstances where: a. Patient G had been prescribed Methadone on the Opioid Substitution Program ('the ODP') which was dispensed by the Pharmacy from at least 3 February 2016; b. concurrent use of methadone and benzodiazepines carries an increased risk of sedation and overdose; c. Patient G was also being supplied with large quantities of clonazepam over the same period; d. clinical guidelines for Methadone stipulate that diazepam is the only benzodiazepine that should be prescribed; e. the oxazepam and the methadone were prescribed by different medical practitioners and the practitioner failed to inform either prescriber of the fact that another drug had been prescribed; f. he failed to clarify and record the directions for use with the prescriber; g. the dispensing was not in accordance with recognised therapeutic standards, contrary to clause 54 of the PTGR. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of Pharmacy. PARTICULARS OF COMPLAINT TWO 1. Between around July 2015 and September 2016 the practitioner purchased and received s4 and s4D drugs from Jason Nguyen outside the proper practice of pharmacy, in circumstances where: a. there were no valid prescriptions; b. the practitioner intended to distribute the drugs to members of the public without valid prescriptions; c. the supply occurred outside a pharmacy setting, at Star City Casino from the boot of Mr Nguyen's car. COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT THREE 1. Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively.

Health Care Complaints Commission v Bui

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