Health Care Complaints Commission v Chan

NCAT Occupational|2024-07-04

Introduction

On 10 November 2022, Felix Yue Sing Chan, a pharmacist, was convicted in the District Court of New South Wales at Queanbeyan on three counts of unlawfully obtain pharmaceutical benefit/payment contrary section 103(5)(g) of the National Health Act 1953 (Cth).
At first instance Mr Chan was sentenced to a period of imprisonment for 2 years, commencing on 10 November 2022 with a direction that he was to be released on recognizance after serving a period of 1 year and 2 months. Mr Chan was immediately taken into custody.
Mr Chan appealed that decision to the Court of Criminal Appeal, Supreme Court, New South Wales. Mr Chan's appeal was allowed and he was resentenced. The practical effect of the resentencing exercise in respect of Mr Chan, taking into account time served, was that an aggregate sentence of 8 months and 17 days imprisonment was imposed to be served by way of Intensive Correction Order in the community commencing on 23 August 2023.. Mr Chan was released from custody on 23 August 2023. The sentence imposed by the Court of Criminal Appeal expired on 9 May 2024.
By application filed on 27 February 2024, the Health Care Complaints Commission, (the Commission), brings proceedings for disciplinary findings and consequential orders against Mr Chan under the Health Practitioner Regulation National Law (NSW) ("the National Law").
This case concerns the conduct of Mr Chan in making fraudulent pharmaceutical benefits scheme (PBS) claims for medication which he purported to dispense but did not actually supply, over a period spanning two and half years from 31 January 2018 to 27 July 2020. It also concerns Mr Chan's obligations to notify regulatory authorities of the charges and subsequent convictions against him arising out of this conduct, and a false declaration made by him as to changes in his criminal history.
There are four individual complaints. Complaint one is that under s 144 (a) Mr Chan has been convicted of a criminal offence. Complaints two and three are that Mr Chan is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that he contravened s.130(1) of the National Law by failing to notify the National Board within 7 days of relevant events; that is, being charged with and convicted of criminal offences (complaint two), and that he made a false declaration concerning a change in his criminal history when renewing his Australian Health Practitioner Regulation Agency ("AHPRA") registration (complaint three). Complaint four is that the unsatisfactory professional conduct within complaints two and three individually and cumulatively amount to professional misconduct.

Background

Mr Chan obtained a Bachelor of Pharmacy from James Cook University in Townsville in 2003 and was first registered to practise as a pharmacist in New South Wales in December 2004.
At the time of the offending conduct, between 31 January 2018 and 27 July 2020, Mr Chan was a proprietor of three pharmacies in New South Wales and the Australian Capital Territory. The pharmacies were: 1. Ginninderra Pharmacy at Belconnen, ACT. This was purchased in 2009. 2. Priceline Pharmacy Bungendore, NSW. This was purchased in 2015. 3. Priceline Pharmacy Queanbeyan, NSW . This was purchased in 2016.
Prior to the purchase of the Pharmacies, Mr Chan had been working as an employed pharmacist since his initial registration in December 2004.
On 24 August 2023, the Pharmacy Council of New South Wales ("the Council") imposed the following conditions on Mr Chan's registration under s 150 of the National Law: 1. Not to practise as a pharmacist or pharmacy assistant. 2. Not to possess any keys, access codes, smart cards or access cards to any pharmacy. 1. By close of business on 30 August 2023 must provide evidence to the Council that he has relinquished all keys, access codes, smart cards or access cards in his possession to another pharmacist. 1. Within 7 days, notify the pharmacist in charge / co-proprietor of any pharmacy in which he has a financial interest, of these conditions, and must provide evidence to the Council that he has done so.
In broad terms s150 proceedings enable the Council to impose conditions on, or to suspend, the registration of a health practitioner for the protection of the public or where it is otherwise, in the public interest. Action taken under s 150 is interim. The conditions imposed by the Council remain in place.
Mr Chan has since sold the Ginninderra Pharmacy at Belconnen and Priceline Pharmacy Queanbeyan in November 2022 and April 2024 respectively. At the time of the hearing, contracts had been exchanged for the sale Priceline Pharmacy Bungendore.

The Application and protective orders sought

By Amended Application, for which leave was given and filed without objection on 4 July 2004, the Commission seeks the following protective orders in respect of the Complaint: 1. an order under ss.149C(1)(b) or 149C(1)(c) of the National Law cancelling Mr Chan's registration; and 2. a prohibition order under s.149C(5)(a) of the National Law prohibiting Mr Chan from providing a health service as defined in s.4 of the Health Care Complaints Act 1993 (NSW) for the same period as any non-review period imposed. 3. An order that Mr Chan pay the Commission's costs under clause 13 of Schedule 5D of the National Law.
The extent to which the amended Application differed to the initiating Application is that it raised an additional basis for cancellation of Mr Chan's registration pursuant to s 149C(1)(c) of the National Law. Given the late notice, the Tribunal granted leave for Mr Chan to provide supplementary submissions addressing s 149C(1)(c) after the hearing.
Section 149C of the National Law sets out the circumstances in which the Tribunal may suspend or cancel a practitioner's registration. It provides as follows: 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 - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (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 (d) the practitioner is not a suitable person for registration in the practitioner's profession.

The Complaint

The Complaint was filed on 27 February 2024 ("the Complaint"). It comprises the following four complaints: 1. Complaint One is that Mr Chan has been convicted of criminal offences pursuant to s.144(a) of the National Law. 2. Complaint Two is that Mr Chan is guilty of unsatisfactory professional conduct pursuant to s.139B(1)(b) of the National Law, in that he has contravened s.130(1) of the National Law by failing to notify the National Board within 7 days of relevant events (namely, being charged and convicted of criminal offences). 3. Complaint Three is that Mr Chan is guilty of unsatisfactory professional conduct pursuant to s.139B(1)(b) of the National Law in that he has contravened s.109(1)(b) of the National Law (namely, by making a false declaration concerning a change in his criminal history when renewing his AHPRA registration). 4. Complaint Four is that Mr Chan is guilty of professional misconduct under s.139E of the National Law in that he has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and 2. engaged in more than one instance of unsatisfactory professional conduct that, when considered together, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration.
The particulars of complaint one are as follows: 1. On 10 November 2022 in the District Court of New South Wales at Queanbeyan, Mr Chan was convicted of the following offences: 1. unlawfully obtain pharmaceutical benefit / payment at Ginninderra and elsewhere in the Australian Capital Territory, contrary to s.103(5)(g) of the National Health Act 1953 (Cth) ("National Health Act"); 2. unlawfully obtain pharmaceutical benefit / payment at Queanbeyan and elsewhere in the State of New South Wales, contrary to s.103(5)(g) of the National Health Act; and 3. unlawfully obtain pharmaceutical benefit / payment at Bungendore and elsewhere in the State of New South Wales, contrary to s.103(5)(g) of the National Health Act. 1. The circumstances of the conviction in the first particular include that from 31 January 2018 to 27 July 2020, Mr Chan submitted 105 fraudulent claims to the Pharmaceutical Benefits Scheme (PBS) and used identifying information of 13 General Practitioners and 99 individual patients, which resulted in him receiving PBS payments to which he was not entitled in the amount of $288,595.56.
The particulars of complaint two are that Mr Chan failed to notify the National Board within seven days of being: 1. charged on 11 October 2021 with the offence of obtaining financial advantage by deception contrary to s.134.2(1) of the Criminal Code Act 1995 (Cth); 2. charged on 10 August 2022 with the offence of unlawfully obtain pharmaceutical benefit / payment at Ginninderra and elsewhere in the Australian Capital Territory contrary to s.103(5)(g) of the National Health Act Cth; 3. charged on 10 August 2022 with the offence of unlawfully obtain pharmaceutical benefit / payment at Queanbeyan and elsewhere in the State of New South Wales contrary to s.103(5)(g) of the National Health Act Cth; 4. charged on 10 August 2022 with the offence of unlawfully obtain pharmaceutical benefit / payment at Bungendore and elsewhere in the State of New South Wales contrary to s.103(5)(g) of the National Health Act Cth; 5. convicted on 10 November 2022 with the offence of unlawfully obtain pharmaceutical benefit / payment at Ginninderra and elsewhere in the Australian Capital Territory contrary to s.103(5)(g) of the National Health Act Cth; 6. convicted on 10 November 2022 with the offence of unlawfully obtain pharmaceutical benefit / payment at Queanbeyan and elsewhere in the State of New South Wales contrary to s.103(5)(g) of the National Health Act Cth; 7. convicted on 10 November 2022 with the offence of unlawfully obtain pharmaceutical benefit / payment at Bungendore and elsewhere in the State of New South Wales contrary to s.103(5)(g) of the National Health Act Cth.
Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes "A contravention by the practitioner (whether by act or omission) of a provision of this Law".
In turn, s.130(1) of the National Law provides that a registered health practitioner must, within seven days after becoming aware that a relevant event has occurred, give the National Board written notice of the event. "Relevant event" is relevantly defined in s.130(3) as the practitioner being charged with an offence punishable by 12 months' imprisonment or more (s.130(3)(a)(ii)) or the practitioner being convicted of an offence punishable by imprisonment (s.130(3)(b)(ii)).
The particulars of complaint three are that on 5 October 2022 in his renewal of his AHPRA registration form, Mr Chan made a false declaration concerning a change in his criminal history, in that he failed to provide details of his charges which was contrary s.109(1)(b) of the National Law.
Section 109(1)(b) of the National Law provides that an application for renewal of registration must include or be accompanied by a statement that includes details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration.
Similarly, as set out above in respect of complaint two, s.139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this Law".

Reply to the Complaint

Mr Chan filed a reply to the Complaint on 28 May 2024. In this reply, Mr Chan: 1. admits the background facts to the complaints; 2. admits complaint one and its particulars; 3. admits complaint two and its particulars but submits that there were "extenuating circumstances" and relies upon his affidavit of 28 May 2024 (Chan Affidavit). 4. admits complaint three and its particulars, but submits that there were "extenuating circumstances" and relies upon his Affidavit; and 5. admits complaint four but submits that the conduct is not of a sufficiently serious nature to justify cancellation and submits that alternative protective order/s under ss. 149A, 149B and/or 149C of the National Law are appropriate and adequate.
The central issue in dispute in these proceedings is the appropriate protective orders. The Commission principally seeks cancellation of Mr Chan's registration and a concomitant order prohibiting Mr Chan from engaging in a health service for any non-review period imposed. Mr Chan does not dispute that his conduct amounts to unsatisfactory professional conduct and professional misconduct but submits that the appropriate protective orders would be a combination of a suspension with cautions or reprimands.
Mr Chan admits each of complaints one to four, together with all particulars, in his Reply. By operation of s.165H of the National Law, no inquiry need be conducted into the Complaint in these circumstances, as Mr Chan has admitted the subject-matter of the Complaint in writing to the Tribunal.
However, it is necessary for the Tribunal to be independently satisfied of the facts relied on to establish the particulars of the Complaints due to the operation of ss.165M(2) and 165M(5) of the National Law. The Commission submits that the Tribunal can be so satisfied, as the subject matter of each of the Complaints is established on its evidence. We accept that submission, and we now turn to the evidence and findings which supports our reasons for doing so.

Complaint One

The evidence the Commission relies on to establish the particulars of complaint one is as follows: 1. The Crown Sentence Bundle, containing the Court Attendance Notices dated 10 August 2022, the Notice of Committal dated 29 August 2022, and the Agreed Statement of Facts dated 9 August 2022; 2. the transcript of the sentencing proceedings before her Honour Judge Bright on 10 November 2022 in the New South Wales District Court at Queanbeyan; 3. the transcript of her Honour Judge Bright's Remarks on Sentence of 10 November 2022 in the New South Wales District Court at Queanbeyan; and 4. the Certificate of Conviction dated 1 May 2023.
The particulars of complaint one are proven on the evidence before us and are admitted by Mr Chan. We find that under s.144(a) of the National Law Mr Chan has been convicted of criminal offences in New South Wales.

Complaints Two and Three

Complaints two and three are about a failure to comply with sections 130(1)(b) and 109(1)(b) of the National Law respectively.
The evidence the Commission relies on to establish complaint two is as follows: 1. On 11 October 2021, Mr Chan was charged with the offence of obtaining financial advantage by deception contrary to s.134.2(1) of the Criminal Code Act 1995 (Cth). This offence carries a maximum penalty of 10 years' imprisonment. Mr Chan's Notice of Certain Events ("NOCE") was not received by AHPRA until 23 December 2021. Mr Chan's NOCE was therefore received by AHPRA approximately two months' late. 2. On 10 August 2022, Mr Chan was charged with three offences contrary to s.103(5)(g) of the National Health Act. These offences carry a maximum penalty of two years' imprisonment. Mr Chan did not lodge a NOCE or otherwise notify AHPRA of these charges within seven days. 3. On 10 November 2022, Mr Chan was convicted of the three offences contrary to s.103(5)(g) of the National Health Act. As above, these offences carry a maximum penalty of two years' imprisonment. The letter from Mr Chan's legal representative to AHPRA regarding these convictions was not received by AHPRA until 21 November 2022, some four days late.
The particulars of complaint two are admitted and are independently proven on the evidence. Mr Chan contravened 130(1)(b) of the National Law.
Section 139B(1)(b) of the National Law designates that a contravention of the National Law, in this case a breach of s 130(1), is unsatisfactory professional conduct. The effect of the finding that Mr Chan contravened 130(1)(b) of the National Law is that he is guilty of unsatisfactory professional conduct. Complaint two is established.
The Commission relies on evidence from AHPRA to establish complaint three in the form of copies of renewal/registration application disclosures made by Mr Chan. This evidence establishes that Mr Chan did not disclose that he had been charged with the three offences contrary to s.103(5)(g) of the National Health Act on 10 August 2022 in his renewal application as lodged with AHPRA on 5 October 2022.
Section 109(1)(b) of the National Law provides that an application for renewal of registration must include or be accompanied by a statement that includes details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration.
It is not necessary, in order for the particular of complaint three to be proven, for Mr Chan to have given the false information on the renewal of registration application knowingly, in the sense that he held a deliberate intention to deceive at the time of completing the application. It is enough that, Mr Chan at the time of filling in the form, was aware of his criminal history had changed, and failed to answer the relevant questions accurately.
The particulars of complaint three are admitted and are independently proven on the evidence. Accordingly Mr Chan contravened 109(1)(b) of the National Law.
Similarly to complaint two, Section 139B(1)(b) of the National Law designates that a contravention of the National Law, in this case a breach of s 109(1)(b), is unsatisfactory professional conduct. The effect of the finding that Mr Chan contravened 109(1)(b) of the National Law is that he is guilty of unsatisfactory professional conduct. Complaint three is established.
Complaint four alleges that Mr Chan is guilty of professional misconduct under section 139E of the National Law in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or 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 his registration.
In support of this complaint the particulars of complaints two and three are relied upon individually and cumulatively.
There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct.
As explained in Chen v Health Care Complaints Commission [2017] NSWCA 186 the term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: [19].There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal: [20].
At [20] Basten JA continued: …Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct….
It is the nature and seriousness of the conduct which is found to have been established which is relevant to professional misconduct.
In our view Mr Chan's unsatisfactory professional conduct is of a sufficiently serious nature to fall within the definition of "professional misconduct" under s 139E of the National Law.
In numerous instances Mr Chan breached a provision of the National Law by failing in his obligation to notify or disclose criminal charges and convictions to AHPRA. He falsely indicated "No" on an application and renewal document to AHPRA as it related to changes in criminal history.
It is important for the maintenance of the integrity of the system for the disciplining of health practitioners set up by the National Law that practitioners comply with the reporting obligations which form part of the system.
Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place.
The failure by Mr Chan to notify or disclose the full extent of his criminal history meant that important information was withheld from AHPRA with respect to whatever assessment they may wish to undertake about his suitability or fitness to be registered as a Health Practitioner.
When taken together as a whole, the nature and number of instances of unsatisfactory professional conduct are sufficiently serious to support a finding of professional misconduct under s139E(b) and to justify cancellation of Mr Chan's registration under s149C(1)(b). In our view both the seriousness of the proved conduct and its repetition constitutes professional misconduct.
Mr Chan admits professional misconduct and refers to extenuating circumstances in his affidavit dated 28 May 2024 for his failure and delay in notifying of the charges and convictions. He stated as follows: I first found out about the charges sometime in mid to late October 2021, when the Court attendance notice was hand delivered to me at my home address in Canberra. On the 7 December 2021, I completed the form to notify AHPRA of the charges as I had attended court and received advice to do so. I then sent that form to AHPRA by post in the days following 7 December 2021, but I do not remember the exact day I posted it. Since that initial notification, I was doing my best to keep AHPRA and the HCCC informed at the developments in my case. It was never my intention to try and hide anything from AHPRA or the HCCC. Regarding the failure to report the three additional charges which were laid on the 29 August 2022. I understand that my solicitor sent a letter to HCCC on 27 September 2022, providing a comprehensive update of my case, including that I had pleaded guilty and when it was next listed. I appreciate that I should have been more diligent to report this within seven days of 29 August 2022 and to AHPRA rather than just to the HCCC. Regarding the failure to report the outcome of my case on 10 November 2022 (reported 21 November 2022). I was in custody at the time, adjusting to the environment, with no access to any internet or phone services and hence my very limited ability to manage my affairs. NSW Corrective Services did not afford inmates any electronic or mobile phone access to the outside world during my time in custody. Likewise, I was not afforded paid external telephone services till early December 2022. NSW Corrective Services were still under COVID lockdown in November 2022, meaning I was placed in isolation for a total of four weeks as soon as I entered the system, with no adjustment period. When I submitted my AHPRA renewal applications I did not intend to be misleading when I selected that there had been no change to my criminal history. I believed that I was answering it honestly as I had notified AHPRA already in December 2021 about the criminal charges, so I believed the form was asking for any "additional" changes to my criminal history other than what I had already advised. However, I accept that I should have been more diligent to check this and I will do so in the future for anything I'm not sure about.
Mr Chan also stated that he understood the importance of the notification requirements in the National Law, and he was now fully aware of his obligations under sections 109 and 130 of the National Law.
In our view, the matters to which Mr Chan refers are relevant to our determination of what if any are the appropriate protective orders referable to our finding of professional misconduct. This issue is dealt with later in this decision.

Mr Chan's evidence about the offence

Mr Chan used the real names of doctors and patients in the fraudulent PBS claims. In some cases when he was dispensing prescriptions for a patient, he added extra drugs to a patient prescription. He created fraudulent transactions in all of his pharmacies. He targeted high-cost drugs such as insulin, pancreatic extract and other rare drugs.
To understand Mr Chan's explanation for the offending conduct it is necessary to set out in detail some of his evidence about his Pharmacy businesses. This evidence is contained in his affidavit and was echoed in his oral evidence to the Tribunal.
Mr Chan purchased Priceline Pharmacy in Queanbeyan NSW around August 2016. The opportunity to purchase this pharmacy came through a broker. It made sense to Mr Chan to purchase the pharmacy due to the synergy of the Priceline branding and his ownership of the Priceline Pharmacy at Bugendore. He purchased Priceline Queanbeyan for $2,500,000. Each of his three pharmacies were purchased with bank finance, secured over each pharmacy business and with a personal guarantee. It was a requirement of the finance arrangement with the bank that each pharmacy would be revalued by an independent bank approved valuer every two years to ensure there was adequate security for each loan.
In August 2017, Ginninderra Pharmacy was valued at $1,720,000. Whilst that was more than Mr Chan had purchased it for ($1,100,000) it was far less than what he was expecting and far less than what he had been offered for it in 2014 ($2,400,000). In his mind it represented a decrease in the value of the business.
In October 2017 , Priceline Bungendore was valued at $1,265,000. This was substantially less than what he had purchased it for two years before, being $1,910,000. The valuations scared Mr Chan and he was concerned that they would lead the bank to calling-in the loans and because of the personal guarantee, he was at risk of losing everything. He was worried about the financial viability of the pharmacies, and the need to increase the revenue of the pharmacies.
It was shortly after this time that Mr Chan began to offend by making false PBS claims. He did this to boost the cash flow of the pharmacies with the aim of increasing the value of the pharmacies so that the banks would not call in the loans
In February 2020, Priceline Queanbeyan was valued at $1,910,000. This was a substantial amount less than what he had paid for it ($2,500,000). This exacerbated his feelings of financial distress and his offending continued.
The offending occurred between 31 January 2018 and 27 July 2020.
In 2020 the COVID 19 pandemic hit. Mr Chan explained that this gave him a different perspective. He observed the suffering and strain on the health care system especially the public system. Mr Chan explained that he felt overwhelmed with what he had been doing and he was forced to step back and look at his actions. He remembered thinking that what he was doing was wrong and he stopped submitting fraudulent claims in July 2020.
In early November 2020, about three months after Mr Chan stopped making false PBS claims, he was approached for an interview by investigators from the Department of Health. Mr Chan was interviewed by officers of the Department on 24 November 2020. There is no specific evidence before the Tribunal as to what was the catalyst or what prompted the Department to seek this interview with Mr Chan. However, at this interview officers told Mr Chan they held concerns about his dispensing practice and presented him with a list of claims about which they held concerns.
During the interview Mr Chan made admissions about the fraudulent claims he had made. In January 2021 he provided records to the Department which identified instances of his fraudulent behaviour some of which the Department may not have been aware. On 21 January 2021 he repaid the entire amount of money which he had fraudulently claimed. He was able to repay this large amount ($288,595.56) from funds available to him in his bank account.
Mr Chan said he was ashamed that he took money from the Government. He knew it was wrong but he was scared that the bank would call in the loans and he would lose everything. He recognised that there were other options available to him such as seeking financial counselling or consolidating his losses.
Mr Chan is not currently working. In respect of his future plans he referred to the possibility of acting in consultant roles and in the future he would like to work as a pharmacist again and may be interested if the opportunity arose to purchase a pharmacy
In response to specific questions from the Tribunal Mr Chan agreed that his conduct had flow on effects. These included that he had to manually override his till to obscure the false claims, that patients could reach safety nets earlier, that PBS medication data could be distorted, and that he was misleading his bank about the profitability of his businesses. He also agreed that some of his concerns about the relevance of a drop in valuations were assumed. However, Mr Chan did not appear to independently identify these matters for himself until prompted by the Tribunal.
We note that there was a similar theme in Mr Chan's evidence given at the s 150 proceedings. There, Mr Chan expressed the view that his conduct did not involve any risk to patients. He did not seem to recognise the potential harm to patients of other health professionals relying on patient medication records when treating patients. For example, if a patient is admitted to a hospital, the hospital may contact the pharmacy to obtain a dispensing history that would be used for dosing the patient. Also other pharmacists employed in Mr Chan's pharmacies who were unaware of the fraudulent transactions would use the records when dispensing other medicines and advising patients.
Between November 2023 and April 2024 Mr Chan has completed 230 continuing professional development points. These have included Pharmaceutical Society of Australia (PSA) Ethics courses in legislation, forensic pharmacy and practice.

Character References

Two pharmacists and professional colleagues, Mourad Karas and Sangu Park, provided affidavits to the Tribunal in support of Mr Chan. Both were aware of the disciplinary proceedings and spoke to Mr Chan's good character: Affidavit of Mourad Karas affirmed 24 May 2024 and Affidavit of Sangu Park sworn 27 May 2024.
Mr Karas has previously worked for Mr Chan and has known him for more than 10 years. He said that Mr Chan has demonstrated himself to be generous, open, compassionate, honest and trustworthy. He treats all his staff and customers with utmost respect and without prejudice. Mr Chan is generous with his time as well as in monetary terms. Mr Chan has on many occasions taken time out of his busy schedule to mentor him and offer advice on personal and professional matters when they were needed most.
These comments are mirrored by Ms Park who has also worked for Mr Chan. She stated that when she started practising she did not have very much experience in a rural pharmacy and Mr Chan was very generous with his time and providing her with career guidance. Mr Chan was a very good boss. He treated the staff like part of his family. He was liked and respected by staff and the community.
These comments were shared by those who provided character references for Mr Chan in his sentence proceedings, including several previous customers.

The Commission

The Commission submitted that the circumstances of the offence for which Mr Chan had been convicted were such as to render him unfit in the public interest to practise pharmacy. Specific submissions were made having regard to the factors referred to in AHPRA's Registration Standard: Criminal History dated 1 July 2015.
Reflecting these factors, the Commission addressed:

the nature and gravity of the offence and its relevance of the offence to health practice;
period of time since the offence;
whether a finding of guilt was recorded for the offence;
sentence imposed;
ages of the health practitioner and any victim at the time of the offence;
the practitioner's behaviour since committing the offence;
likelihood of future threat to a patient; and
the practitioner's explanation.

Some of these factors are self - evident such as the recording of a conviction and the sentence imposed. We have focused on the salient aspects of the submissions reflecting the Commission's position.
The Commission submitted that looking at the nature and gravity of the relevant offence it is objectively serious. Parliament has made the gravity of the offence clear by setting a maximum penalty of 2 years imprisonment.
It pointed to the sentencing judge's description of the offending as involving "serious objective criminality". In sentencing remarks of 10 November 2022 Her Honour Judge Bright stated as follows: The offender was engaged in a very lengthy course of conduct and made claims on 105 separate occasions involving 1,070 items to obtain total payments of $288,595.56. This amount was government funds to which the offender was not entitled. The false statements made included the offender using the prescribed numbers of real doctors and the real names of patients. As observed by his Honour Judge Davidson in The Queen v Gorgy (NSWDC, 17 April 1998, unreported), it is highly relevant to the sentencing exercise that an approved pharmacist under the Pharmaceutical Benefits Scheme is in a position analogous to a position of trust.
Later in her remarks on sentence, the sentencing judge determined that the objective seriousness of the offences was "well above the middle of the range" and said: In determining the appropriate sentences, I have taken into account the following matters concerning the nature and circumstances of the offending; 1. The offending occurred over a period of two and a half years between 31 January 2018 and 27 July 2020. False claims were made on 105 separate occasions relating to 1,070 pharmaceutical items. On each occasion that a claim was made, the offender entered the information into the prescription dispensing software before submitting a claim to Services Australia. The software warned the offender on each occasion that giving false or misleading information is a serious offence. I am satisfied that the offender knowingly made the false statements on each occasion. Each offence represents a course of conduct relating to each of the three pharmacies. I note that each false claim individually could have been subject to a separate charge under the relevant offence provision. 2. In preparing each false claim, the offender utilised the real information of both doctors and patients. He was claiming for medication that had not been prescribed by the relevant medical practitioner, nor provided to the relevant patient. 3. The total amount claimed with respect to each offence is $111,229.32, $114,553.21 and $62,813.03. The full amount of the loss has been repaid by the offender. 4. The motivation for the offending was financial stressors that the offender was experiencing at the time. Having regard to those factors, I regard the objective seriousness of each offence as well above the middle of the range. The only differentiation between the objective seriousness of each offence is that count 3, relating to the Bungendore Pharmacy, relates to a less significant amount of funds paid, and for that reason the objective seriousness is reduced, although I still regard it as above the mid-range.
As the offences are directly connected to Mr Chan's practise as a registered pharmacist, the Commission submitted that the circumstances of the offending are "inconsistent with the honourable practise of an honourable profession, which regards integrity trustworthiness and high moral and ethical values as an integral part of the practise of medicine": Health Care Complaints Commission v FLJ [2023] NSWCATOD 7 at [93].
In relation to the likelihood of future threat to a patient the Commission acknowledged and referenced the sentencing Judge's remarks that Mr Chan had good prospects of rehabilitation. Specifically, her Honour commented that Mr Chan was of prior good character and had been assessed as a low risk of reoffending by Patrick Sheehan, Clinical Psychologist, and the Community Corrections Officer who prepared the Sentencing Assessment Report. Her Honour further said that she had no doubt that the consequences of the offending will deter Mr Chan from any future offending and was satisfied that he was unlikely to reoffend.
The Commission's submissions were to the effect that the offences for which Mr Chan had been convicted exhibited traits not consistent with the practise of an honourable profession, demonstrated that he was unfit in the public interest to practise and that cancellation was appropriate. It referenced the nature and extent of the offending, the use of the health data of individual patients and the names of General Practitioners. It referred to observations made in the s150 proceedings, that the conduct involved potential harm to patients, as other pharmacies, doctors and health professionals rely on patient medication records when treating patients. Reference was also made to evidence that emerged at the hearing. For example, as a result of the fraudulent claims, certain patients may have met the PBS Safety Net threshold earlier than they would have otherwise (causing a further cost to the Commonwealth).
The Commission also submitted that cancellation was appropriate because Mr Chan was guilty of professional misconduct If the public were aware that a pharmacist could practice in circumstances where they had been charged with, and convicted for, a number of serious offences, and had failed to comply with their reporting obligations in respect of those charges and convictions, the trust in the practitioner, the profession and the regulatory regime would likely be seriously undermined.

Mr Chan

On behalf of Mr Chan it was submitted that suspension not cancellation was an appropriate protective order as it related to the offences. Submissions made on behalf of Mr Chan focused on his good character, his voluntary admissions of his offending, repayment of the monies and his insight.
During the 13 years Mr Chan had been a pharmacist and prior to the offences he had not been the subject of any complaint to the National Board or the Commission.
In addition to having no previous complaints, Mr Chan was regarded as a person of good character, both by his peers, employees, friends and family. Against that background the offending by Mr Chan was not reflective of his true character, but rather is indicative of a momentary and temporary defect in his good character. In support of this submission reference was made to Mr Chan's voluntary cessation of the offending, his admissions to the offending together with the voluntary admissions of offending not discovered, the repayment of the defrauded sum on 21 January 2021 and his pleas of guilty in the criminal proceedings. Reference was also made to the fact that following Mr Chan's release on 23 August 2023, he was summonsed to a hearing pursuant to s 150 of the National Law by the Pharmacy Council, the next day on 24 August 2023. Notwithstanding having been released from custody 24 hours prior, he appeared and participated in the process.
It was also submitted that Mr Chan has ostensibly been suspended since the s 150 proceedings on 24 August 2024, although no formal order was made.
In relation to complaints 2-4 it was submitted that a reprimand was an appropriate disciplinary order given the totality of the circumstances surrounding Mr Chan's late disclosures and nondisclosures to the National Board.

Relevant facets of the public interest and their application to the criminal offences

The term "public interest" is not defined in the National Law. It is found in various provisions of the National Law including in the objectives of the national registration and accreditation scheme (s 3(2)(e)), in association with a practitioner found guilty of criminal offences (s 149C), in determining whether to take action under s 150, in making an interlocutory order suspending a practitioner's registration (s 165L) and in determining what information should be included in the public register (s 226).
The starting point for the consideration of the "public interest" is to interpret it in the light of the purpose or objects of the National Law: see cl 7 of Schedule 7 of the National Law.
The objectives of the National Law, as set out in s 3, are as follows: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (a) to provide for 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; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high-quality education and training of health practitioners; and (ca) to build the capacity of the Australian health workforce to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
The guiding principles of the National Law are set out in s 3A: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that - (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; Example - Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care. (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
There is an "additional NSW provision" of the National Law in s 3B: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
The objectives and guiding principles which are most relevant to interpreting the public interest in the circumstances of this case are the protection of the health and safety of the public, that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and that restrictions on the practice of a health profession[al] are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53, Deputy President ADCJ Boland considered the authorities on the "public interest" and concluded that the authorities emphasised a number of matters relevant to the scope and purpose of the legislation, those factors including "the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them": at [151].
In Pharmacy Council v Ibrahim [2020] NSWSC 708, the Court held that the "public interest" is a broader concept than protection of the health or safety of the public, encompassing wider community interests such as the standards to which human conduct is to be held. The following observations by Harrison AsJ in Pharmacy Council of NSW v Ibrahim at [32] and [35] are instructive: As such, and in the context of ss3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna v Medical Board of NSW [2017] NSWCATOD 27 at [18] … The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held…
Whether a practitioner is unfit in the public interest to practise will require the Tribunal to consider not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the respondent in terms of any insight, contrition, and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51].
Accordingly public interest contemplates both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and that criminal conduct occurs whilst performing their professional role and responsibilities, the public's ability to entrust their care to those health professions is eroded if the practitioner continues to practise.
It was readily apparent from Mr Chan's oral evidence, and as the Commission acknowledged, that he is remorseful for his misconduct. Based on his continuing education, and as confirmed by his referees, he has taken steps to improve his ethical understanding of the practise of pharmacy and maintain his clinical knowledge to ensure that his shortcomings are rectified. That evidence, and the positive statements by his referees as to his character, competence and diligence, was not contested.
That being said, in our view the circumstances of the offences are such that they render Mr Chan unfit in the public interest to practise.
Between 31 January 2018 and 27 July 2020, Mr Chan engaged in a course of conduct in which he submitted fraudulent PBS claims containing false statements and received PBS payments to the value of $288,595.56 to which he was not entitled.
As part of the public health system, the PBS is an organised response by society to protect and promote health and to prevent illness, injury and disability. It provides timely, reliable and affordable access to necessary medicines. Under the PBS, the government subsidises the cost of medicine for most medical conditions. It allows pharmacists, and places trust in them, to assist the public to manage their medicines and their health.
Mr Chan's conduct and the offence involved the use of the sensitive health data of 99 individual patients as well as the names of 13 General Practitioners. As set out in the Written Reasons for Decision in the s 150 proceedings, the conduct involved potential harm to patients, this is because other pharmacies, doctors and health professionals rely on patient medication records when treating patients.
The offending had a range of flow-on effects. For example, as a result of the fraudulent claims, certain patients may have met the PBS Safety Net threshold earlier than they would have otherwise causing a further cost to the Commonwealth. The fraudulent PBS claims had the potential to distort the data held by the authorities as to which medications were the subject of PBS claims. Mr Chan made false representations to his banks based on inflated profits, and he had to override his till and manually adjust the stock on hand so that the fraudulent transactions were not evident.
We were not confident that Mr Chan appreciated the ramifications of his conduct. In our view Mr Chan lacked a proper appreciation of the role pharmacists play in the PBS system, which makes vital medicines affordable, and which relies upon their professionalism and integrity.
We conclude Mr Chan's deliberate, lengthy, and calculated defrauding of the PBS from three separate pharmacies where he was the Pharmacist in Charge and of which he had ownership, render him unfit in the public interest to practise.
Given the matters referred to above, we are satisfied that the circumstances of the offences of which Mr Chan has been convicted render him unfit in the public interest to practise Pharmacy.

Disciplinary Orders Principles

Having determined that the circumstances of the offences for which Mr Chan has been convicted render him unfit in the public interest to practise pharmacy and that he is guilty of professional misconduct, the powers to suspend or cancel his registration are enlivened: 149C(1)(b) and (c) of the National Law.
When a finding of professional misconduct is made the Tribunal has a discretion to make a cancellation order: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 [67].
In relation to proven claims against registered health practitioners the relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of Part 8 of the National Law: sections 149A, 149B and 149C of the National Law.
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration: s 3B of the National Law .In exercising our functions to determine the appropriate orders, we are required to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A: s 4 of the National Law
Section 3(2)(a) of the National Law makes it clear that the objectives of the national registration and accreditation scheme are to provide for 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.
This involves a consideration of the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 [637].
Protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession: Health Care Complaints Commission v Do, [2014] NSWCA 307 at [35].
In Health Care Complaints Commission v Do, Justice Meagher (with whom Justices Basten and Emmett agreed) [at 35] referred to the importance of denunciation of misconduct as follows: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In Prakash v Health Care Complaints Commission, 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".
Accordingly, the purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield. However, that is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31].

Professional Misconduct

As we have found above Mr Chan's failures in his obligations to notify regulatory authorities of the charges laid against him, the subsequent convictions arising out of this conduct and changes in his criminal history amounts to professional misconduct.
In cases where the omission to report is deliberate or careless, a protective order in the nature of cancellation may be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [34]:
In relation to the initial charges laid against Mr Chan on 11 October 2021, Mr Chan received the charges in mid to late October 2021 and completed a NOCE to AHPRA dated 7 December 2021 which was received on 23 December 2021. While this exceeds 7 days, he did take steps to notify.
Mr Chan did not comply with his notification obligations in relation to the charges on 10 August 2022. By way of explanation Mr Chan had engaged with the National Board having earlier reported that he had been "charged". These charges did not relate to any new conduct alleged against him, but the replacement for the original charge laid on 11 October 2021. Further, in relation to the charges on 10 August 2022, Mr Chan's solicitor did send a letter to the Commission (not the National Board as required) on 27 September 2022 providing a detailed explanation of the status of his criminal case.
In relation to the conviction on 10 November 2022, Mr Chan had been sentenced to imprisonment and was not well placed to notify but did report the conviction through his legal representatives, albeit being late by four days.
In relation to the failure to report on his renewal application Mr Chan explains that this was a mistake as a result of a misunderstanding about what constituted "additional" changes, given his earlier disclosure on 7 December 2021.
Looking at all these circumstances it is not the case that Mr Chan took no action at all to bring the charges to the attention of the relevant authorities. Rather, the action he took did not comply with the specific requirements of the National Law. In other respects his actions including the declarations as to criminal history reflected a deficit in his understanding of his obligations under the National Law.
In our view cancellation of his registration on the basis of professional misconduct under 149C(1)(b) is not warranted. In our view it would be unduly punitive and would go further than required for the protection of the public and for the proper purposes of such an order. An appropriate and sufficient protective order reflective of his conduct is to reprimand him as a rebuke for past wrongful conduct. We are satisfied that the imposition of a reprimand sends a strong message that upholds the reputation of the profession and maintains confidence in it by the public.

Criminal Offences

The offending occurred between 31 January 2018 and 27 July 2020, a period of two and a half years. The total amount of payments received was $288,595.56. The objective seriousness of Mr Chan's conduct in the recording of misleading and inaccurate information in patient records was particularly egregious and involved an element of wilfulness and dishonesty.
We have had regard to the submissions made on behalf of Mr Chan as to his character. However, the submissions made on behalf of Mr Chan about his character can only go so far. While the Tribunal is of the view that Mr Chan would not in a similar situation make the same choice again to falsify PBS claims based on his apprehended fears and concomitant concerns about financial security, his conduct over some years was unacceptable and should be denounced as such. As acknowledged in Do, protective orders must not only act as a deterrent to the individual concerned but to the general body of practitioners and maintain public confidence that those whose conduct does not meet the required standards will not be permitted to practise.
The Tribunal agrees with the Commission that a suspension, as argued for by Mr Chan, would not meet the protective purpose. While such an order serves to denounce the conduct and provide deterrence, and the disciplinary proceedings themselves are denunciatory in part; the ramifications of Mr Chan's conduct reach beyond fraudulently claiming monies under the PBS to which he was not entitled. It extends to a manipulation of patient PBS medication records and potential PBS safety net thresholds, and the possible distortion of PBS data. It requires strong denunciation and an effective deterrent.
The PBS relies upon the professionalism and integrity of pharmacists. If Mr Chan could allow his fear about financial security, to factor into defrauding the PBS it is possible that other pharmacists in a similar situation could do the same. Pharmacists must understand that they cannot use public monies in this way whatever the circumstances. They must not put their own interests ahead of patient care and the standing of the profession. They must know that such conduct is completely unacceptable.
Any order less than a cancellation of Mr Chan's registration would, in our view, not appropriately capture the level of denunciation for the benefit of other practitioners that is warranted in this case and would be insufficient to advance the protection of the public. In our view, any order less than cancellation would also seriously undermine the public's confidence in the profession.
The Tribunal has concluded that cancellation of Mr Chan's registration, as a pharmacist under s 149C(1)(c) of the National Law is the only appropriate order. This is required both in order to signal to the profession and the public the seriousness with which such conduct is viewed: Health Care Complaints Commission v Do [2014] NSWCA 307
The Commission made no specific submissions as to the imposition of the period under s 149C(7) of the National Law to before an application for review and reinstatement order may be made.
On behalf of Mr Chan, Mr Faro made general submissions that any period of cancellation should be proportionate to a period of suspension, and suggested months rather than years.
Elsewhere in submissions Mr Faro referenced that Mr Chan has ostensibly been suspended since the s 150 proceedings on 24 August 2023. To the extent that this submission suggests we should take this period into account, we reject that proposition. This is because it does not reflect the purpose of the disciplinary powers of the Tribunal. As set out above that purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards.
The purpose of such an order is that in setting a minimum period within which Mr Chan should not be able to practise his profession it sends a message to him, to the profession, and to the public, about the seriousness of his conduct. It also holds open the possibility that he may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time: Chen v Health Care Complaints Commission [2017] NSWCA 186. At the end of that period he would need to demonstrate, in an application under s 163A of the National Law for a reinstatement order so that he may be registered, that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13.
At that time the Tribunal could consider whether, and if so, what, conditions should be imposed on his registration. In contrast, if an order suspending Mr Chan's registration is made, at the end of the specified period he would be entitled to be re-registered.
In setting a minimum period within which Mr Chan may not make an application for review of the cancellation order we have had regard to work Mr Chan has done to address his shortcomings. In light of the fact that no other issues have been raised in respect of Mr Chan's practice as a pharmacist, we think that a non-review period of nine months is appropriate. This will give Mr Chan an opportunity to reflect further on his conduct and gain a deeper insight into what he has done.

Prohibition Order

The Tribunal has the power to make a prohibition order when it suspends or cancels a practitioner's registration and is satisfied that the practitioner poses a substantial risk to the health of members of the public: s 149C(5) of the National Law.
The Commission submits that a prohibition order should be made prohibiting Mr Chan from providing any pharmaceutical services. The basis for this submission is that Mr Chan poses a substantial risk to the health of members of the public by virtue of the conduct for which he was convicted.
On behalf of Mr Chan it was submitted that the conduct for which he was convicted related to receiving a benefit dishonestly. In these circumstances the degree to which this offence exposed a risk to the public was limited.
Section 149C(5) of the National Law provides: If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (ait may by order (a "prohibition order" ) do any one or more of the following-- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
The terms of s 149C(5) indicate that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if they were to be involved in the provision of health services.
The phrase "substantial risk" is not defined in the National Law and has been considered by the Tribunal as a risk that is material and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Sharah [2015] NSWCATOD 99 at [156].
In our view the risk posed by Mr Chan if he were to be involved in providing any pharmaceutical or health services does not rise to the level of substantial risk. Mr Chan is remorseful for his misconduct. The disciplinary proceedings have impressed on him his professional obligations.
There is a qualitative difference between the circumstances of the offences which render Mr Chan unfit in the public interest to practice pharmacy and conduct of a character from which it could be said that he poses any "substantial risk" to the health of members of the public such that his opportunities to work outside the practice of pharmacy should be restricted. Evidence before us in the form of positive statements by his referees in a general sense point to his competence and diligence. We are not satisfied that the evidence demonstrates that Mr Chan poses a substantial risk to the health of members of the public.
In our view a prohibition order would be unduly punitive and would go further than required for the protection of the public and for the proper purposes of such an order.

Costs

The Commission seeks an order that Mr Chan pay its costs as agreed or assessed. This was not opposed.
The case law is well settled in support of the proposition that generally costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 [42]. The Commission has been successful in establishing the Complaint in its entirety. It has been successful in obtaining the findings it sought and an order for cancellation. Although it was not successful in obtaining a prohibition order, this aspect occupied little time at the hearing. While we did not make all disciplinary orders sought by the Commission, there has been no disentitling conduct on its part and we can see no reason to depart from the general rule as to costs. An order for costs will be made.

Orders

We make the following orders:
Under s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) the registration of the Respondent is cancelled.
Under s 149C(7) of the Health Practitioner Regulation National Law (NSW) a non-review period of 9 months is imposed.
The Respondent is guilty of professional misconduct and under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) is reprimanded.
The application for a prohibition order under s 149C(5) of the Health Practitioner Regulation National Law (NSW) is dismissed.
Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Respondent is to pay the Applicant's costs as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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: 03 September 2024

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (16)