Health Care Complaints Commission v Bui

Background

1. The conduct the subject of the Complaint spanned the period June 2015 and January 2017. By 2015 Mr Bui had been practising as a pharmacist for about 17 years.
2. In September 2017, the Pharmacy Council of New South Wales (the Council) imposed several conditions on Mr Bui's registration, including that he not possess, supply, dispense, administer or manufacture benzodiazepines. In July 2019, the Council removed those conditions.
3. In 2017, Mr Bui and his family moved to Westbrook, a town in southeast Queensland with a population of about 4,000. Since moving to Westbrook, Mr Bui has been the proprietor of the town's sole pharmacy, the Westbrook Pharmacy.
4. Mr Bui has a wife and two small children. Mr Bui's income from pharmacy is the family's sole source of income.

Mr Bui's submissions

1. In support of the submission that a reprimand and, if the Tribunal considers necessary, the imposition of conditions on his registration, are the appropriate form of orders, Mr Bui relies on the following: 1. Evidence of reform. Since the Council imposed conditions on his registration in September 2017, there is no evidence and nor is it suggested that Mr Bui has failed to comply with those conditions or the rules and regulations governing the practice of pharmacy. 2. Evidence of undertaking further education. Mr Bui states that since commencing at Westbrook Pharmacy, despite working long hours, he has devoted one afternoon each week to professional education to ensure that the admitted and proven conduct the subject of the dispensing complaint is not repeated. That education included, reviewing relevant guidelines issued by the Pharmacy Board of Australia, the Australian Health Practitioner Regulation Agency and the Pharmaceutical Society of Australia and undertaking several on-line courses in ethics and the practice in pharmacy. 3. Change in circumstances. Mr Bui claims that he has not visited a casino since 2017, does not have a gambling addiction, no longer has any interest in gambling and does not intend visit a casino again. 4. Mental health. Since July 2021 Mr Bui has been consulting psychologist, Ms Linda Hasse, for treatment of stress and anxiety associated with these proceedings and the threat of potential unemployment. In a medical certificate dated 11 October 2021, Ms Hasse stated that she found Mr Bui to be "a sincere, responsible, family focussed man who strives to provide for his family and serve his community". 5. Reputation within the community. Mr Bui contends that character references he tendered in these proceedings demonstrate that he is a person of good repute. For the past three years, pharmacist, Ms Rabia Khan, has worked one day a week at Westbrook Pharmacy. In a letter addressed to the Tribunal dated 9 October 2021, Ms Khan wrote that Mr Bui is a person of good character, is "a responsible pharmacist who always puts his customers first" and is highly regarded within the community. Throughout the COVID-19 pandemic Mr Bui has "worked tirelessly and remained open despite infection risks". Ms Khan wrote that she is aware of the "disciplinary proceedings matter … I truly believe none of it could happen. [Mr Bui] displays remorse and always helps staff to meet practice standards". John and Elizabeth Carter have been customers of the Westbrook Pharmacy for the past four years. In a letter addressed to the Tribunal dated 10 October 2021, the Carters stated that they know Mr Bui well and consider him and his family to be friends. Because of Mr Bui's "professionalism and caring character", they travel to Westbrook Pharmacy, a 30-minute drive from where they live. The Carters commended Mr Bui for his "significant contribution" to local community groups and charities. They wrote that Mr Bui explained to them about "the incident", he has expressed remorse and over the past 12 months has demonstrated "a lot of improvements in his practices". Finally, the Carters stated that over the past four years they have "not heard a single complaint against Mr Bui … and the chance of making the same mistake is highly unlikely". In a letter addressed "to whom it may concern" dated 24 February 2020, dental practitioner, Mr Saubaugh Nagath, stated that he has known Mr Bui for two years and found him to be a reliable and honest person. Ms Johanne Perry in a letter also addressed "to whom it may concern" dated 7 March 2020, stated that she has known Mr Bui for two and a half years and in her opinion, he is an "excellent pharmacist". 1. Adverse impact on the community. Mr Bui asserts that if his registration were to be cancelled, the Westbrook community would be left without a community pharmacy. The closest pharmacy is in Toowoomba, a 15-minute drive from Westbrook. According to Mr Bui, the provision of pharmacy services to the local community has been especially important throughout the COVID-19 pandemic. Under his leadership, the pharmacy has delivered COVID-19 vaccines to patients, provided information to the community about COVID-19 and strategies to reduce the risk of infection. In addition, throughout the pandemic the pharmacy has delivered medication to at-risk patients, including the elderly.

Principles governing the exercise of the power to make protective orders

1. Where a complaint made under the National Law is admitted or proven, the Tribunal may exercise any of the powers in Subdiv 6, Div 3 of Pt 8 of the National Law. They include the powers to caution, reprimand and to impose conditions on a practitioner's registration. Where, as here, the Tribunal is satisfied that a practitioner is guilty of professional misconduct, it may suspend or cancel the practitioner's registration: s 149C(1) of the National Law.
2. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed 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) 74 NSWLR 523; [2009] NSWCA 102 at [83].
3. In exercising the power to make disciplinary orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. The purpose that power is protective not punitive. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA explained 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".

Conclusion

1. We have decided that it is appropriate to exercise the power to cancel Mr Bui's registration for the following reasons.
2. First, the conduct the subject of the Complaint was of a very serious nature and occurred over a period of 18 months. On any view of the evidence, Mr Bui's actions in purchasing prescription drugs without a prescription from another pharmacist, in a carpark of a casino, from the boot of a car can only be described as entirely incompatible with the standards expected by the community of a pharmacist. We agree with the submission made by the Commission that Mr Bui's misconduct, ought to be denounced to underscore to Mr Bui, the profession and the public the standards expected of pharmacists: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
3. Second, the available material does not support a finding that Mr Bui is reformed.
4. As pointed out by Mr Bui, since moving to Westbrook some five years ago there have been no complaints about his practice as a pharmacist and people of good repute hold him in high regard. Further, there is evidence that Mr Bui has demonstrated insight and remorse and taken steps to remedy the defects in his practice, which gave rise to the dispensing complaint. In those circumstances, if the dispensing complaint was the only complaint found proven, arguably an order "less restrictive" than a cancellation order, might be able to be formulated to "ensure the proper protection of the community".
5. However, these favourable considerations do not assist Mr Bui with respect to the Casino complaint.
6. In these proceedings Mr Bui said that while he continues to deny the Casino complaint, he accepts our findings. In addition, he says he accepts that the conduct found proven by the Tribunal in each complaint, is of a very serious nature.
7. Mr Bui argues that the Tribunal can be confident that the proven (but denied) conduct the subject of the Casino complaint will not be repeated. In support he points to his unchallenged evidence that he has not visited a casino since 2017, has no intention of doing so in the future and the change in his personal circumstances as a result of the move to Queensland.
8. The difficulty with that argument is that in circumstances where Mr Bui denies the Casino complaint, we are left to speculate what might have caused him to engage in this apparently uncharacteristic conduct. But more to the point it makes the task of assessing whether there is a risk that that conduct will be repeated, difficult, if not impossible. It may be that Mr Bui engaged in that conduct to raise funds to feed a gambling addiction, or to assist a family member or a friend. Alternatively, it may have been the result of a psychological condition, or external stressors. Alternatively, it may have been the result of simple avarice. On the other hand, there may be no apparent explanation for the conduct.
9. Ms Hasse's report sheds no light on what caused Mr Bui to engage in that conduct. Her report is confined to a discussion of Mr Bui's mental health in the second half of 2021. Ms Hasse does not suggest that Mr Bui's condition is long-standing nor that it is related in some way to the Casino complaint. Indeed, she makes no mention of that complaint in her report.
10. Nor in our view do the character references tendered by Mr Bui assist us in assessing whether there is a risk that conduct of the type that was the subject of the Casino complaint will be repeated. Two of Mr Bui's five referees prepared their references before the Decision was handed down. The remaining referees refer obliquely to "the issue". None refer to the Casino complaint. But even if it is accepted that each referee was aware of that complaint, none have explained why they hold the view that Mr Bui is a person of good character notwithstanding the Casino complaint.
11. In circumstances where there is no apparent explanation for Mr Bui's conduct in respect of the Casino complaint, we could not be satisfied that that conduct will not be repeated or that conditions could be formulated to mitigate that risk.
12. Our decision will have a devastating personal and financial impact on Mr Bui and his family. In addition, it may result in Westbrook losing a community pharmacy. These consequences are regrettable. However, in our view any order less than a cancellation order would fail to achieve the proper protection of the public and adequately denounce Mr Bui's misconduct.

Non-review period

1. We have decided to impose a non-review period of 18 months, not 36 months as the urged by the Commission. Eighteen months, in our view, is a sufficient period to enable Mr Bui to reflect on the conduct the subject of the Casino complaint.

Date of effect of decision

1. We have decided to exercise the discretion conferred by s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) to order that our decision will not come into effect until 60 days after publication of our reasons for decision. This will enable Mr Bui to put in place necessary arrangements relating to the management and sale of the Westbrook Pharmacy. We understand that by the operation of s 139B of the Pharmacy Business Ownership Act 2001 (Qld), Mr Bui will be required to dispose of his interest in the pharmacy if he no longer holds registration as a pharmacist.

Costs

1. Mr Bui properly concedes, that there is no factor which might justify a departure from the "general rule" that he pay the Commission's costs.
2. We order that Mr Bui pay the Commission's costs, as agreed, or assessed.

Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) Mr Bui's registration as a pharmacist is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW) Mr Bui may not apply for review of the cancellation order for a period of 18 months. 3. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) orders 1 and 2 take effect 60 days from the date of this Decision. 4. Mr Bui is to pay the Commission's costs, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 April 2022