Health Care Complaints Commission v David Vuong

Background

1. The practitioner obtained a Bachelor of Pharmacy degree from the University of Sydney in 2011 and was first registered as a pharmacist on 13 December 2011.
2. The practitioner had general registration from 13 December 2011 until 18 January 2013 when he failed to renew his registration.
3. From 11 April 2013 until 2 April 2020 when his registration was suspended, he held general registration.
4. From 2011 the practitioner worked in his brother's pharmacy, Mak's Chemist, Belmore generally one day per week as a locum pharmacist. He was employed in other pharmacies on other days.
5. During a period (described in the Amended Complaint as "the relevant period") of approximately two years the practitioner inappropriately dispensed medications listed in Schedule 4 of Poisons List proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW) for four patients. The practitioner is charged under Complaint Two with participating in an arrangement in force between 2015 and 2019 entered into by his brother with Ms Thanh Ngoc Trinh (Ms Trinh). The arrangement between the practitioner's brother and Ms Trinh involved Ms Trinh supplying prescriptions to the practitioner or his brother, the dispensing of medications by the practitioner or his brother in accordance with directions of Ms Trinh (who was not a registered pharmacist) including dispensing multiple repeats. The practitioner or his brother would give the drugs to Ms Trinh's husband who would take them to Ms Trinh's health food store at Cabramatta or deliver the medications to the patients. The pharmacy paid a fee to Ms Trinh for each prescription. The pharmacist also gave Ms Trinh access to the pharmacy's password to access the National Diabetes Service Scheme.

Events leading to the disciplinary proceedings

1. The events which led to an investigation of the conduct of the pharmacist, his brother and Mr Le are described in the reasons for decision in respect of the practitioner's brother (see Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83 at [4]-[5] as follows: The practitioner came to the attention of the Pharmaceutical Regulatory Unit of the NSW Health Department (the PRU) following the execution of a search warrant by New South Wales Police at a health food store at Cabramatta, NSW when, amongst other goods, a large quantity of drugs was seized. The health food store was operated by Ms Thanh Van Trinh (Ms Trinh). Ms Trinh was subsequently charged with and pleaded guilty to a number of offences including possession of goods reasonably suspected of being stolen and supply of a restricted substance (a substantial itemised list of prescription only medicines). The police seized Ms Trinh's mobile phone and downloaded numerous text messages passing between herself and the practitioner and his brother Mr David Vuong. Mr David Vuong worked as a locum pharmacist in the practitioner's pharmacy on approximately one day each week. The text messages revealed an arrangement between Ms Trinh and the practitioner to dispense prescription only medications, including repeats, on prescriptions she or her husband supplied to the pharmacy. The practitioner and his brother dispensed the medications without consultation or contact with the prescriber or patient and paid Ms Trinh $3.00 in cash for each item dispensed. They also on occasions dispensed medications without being provided with a prescription, and on other occasions, the practitioner "swapped" or substituted the prescribed brand of medication for a substitute generic, different formulation, or quantity of a medicine. From time-to-time prescription only medications were supplied by the practitioner to Ms Trinh without being labelled. The practitioner gave Ms Trinh the details necessary to enable her to directly place orders for medications directly with his wholesale supplier.

Relevant Law

1. Complaint One is brought by the HCCC under s 139B (1) (a) of the Health Profession Regulation National Law ("the National Law"). Complaints Two is brought under s 139B (1) (a) and/or s 139B (1) (l). Those provisions of the National Law are as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard 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. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. Complaint Three is agitated under s 139E of the National Law. Section 139E provides as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (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.
3. The principles relevant to disciplinary proceedings are well known. First, the onus of proving the complaint lies with the HCCC. Second, the standard of proof is the civil standard, taking into account the serious nature of findings and their consequences for the practitioner (see Gautam v Health Care Complaints Commission [2021] NSWCA 85; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449).
4. Protective orders made in disciplinary proceedings are not to punish the practitioner, but to protect the public, and provide specific deterrence to like conduct and general deterrence to uphold the standards of the profession (see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]).
5. An order under s 149C (7) of the National Law which provides for a period of time before a practitioner may re-apply for registration also has a deterrent purpose (see Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] per Payne JA).
6. Because the practitioner has admitted the complaints in writing, it is unnecessary that we conduct an inquiry into the complaint (see s 165H of the National Law). However, we must independently consider the evidence in this matter in order to determine appropriate protective orders.

The evidence

1. The HCCC relied on a volume of material (Exhibit A) and Mr Fuller counsel for the HCCC provided comprehensive and helpful written and oral submissions.
2. Included in the material relied on by the HCCC is an expert report provided by Ms N Croker. Ms Croker was not required for cross-examination.
3. In her report Ms Croker does not find that the dispensing for Patient E was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. However, she finds the practitioner's dispensing of multiple supplies of amisulpride 400 mg tablets for Patient G was significantly below the expected standard particularly as this occurred at the same time as he dispensed Largactil, an anti-psychotic which may have significant side effects.
4. Ms Croker also comments on the practitioner's dispensing1500 paracetamol tablets for Patient H (in the amended complaint referred to as DV-H) and also finds the dispensing for this patient significantly below the standard.
5. The expert also comments on the practitioner's interaction with Ms Trinh and or her husband. While noting that some pharmacies do employ a delivery person to do local deliveries of medications to regular customers she notes such a service is usually only offered to regular clients who live geographically close to the pharmacy or in urgent circumstances.
6. At para 71 Ms Croker notes: [The practitioner] does not appear to have made any attempt to provide medication information or provide any counselling, even if medications may have been newly prescribed or if multiple quantities were requested.
7. Ms Croker opines that "regardless of who he believed he was texting [the practitioner's] conduct did not meet the required standard of care".
8. Ms Croker also opines that the practitioner's conduct in providing Ms Trinh with the National Diabetes Service Scheme password falls significantly below the standard expected.
9. We accept Ms Croker's unchallenged opinions and find they are soundly based.
10. The HCCC also relied on transcript of interviews of the practitioner and his brother with the PRU and before the Council at the s 150 hearing as well as written submission of the practitioner (undated) relied on at that hearing. Additionally the transcript of the text messages from Ms Trinh's mobile phone and that of the practitioner was in evidence before us.

The HCCC's submissions

1. Mr Fuller, counsel for the HCCC, provided joint submissions in respect of the complaints against the practitioner and his brother.
2. The submissions refer to the practitioner's excessive dispensing and Ms Croker's condemnation of the practitioner's conduct.
3. The submissions also refer to the "delivery arrangement" with Ms Trinh and note that the practitioner dispensed prescriptions that purported to be pre-signed by the patient and that he facilitated Ms Trinh's access to the National Diabetes Service Scheme. The submissions also point out that on occasions the practitioner dispensed medications without a prescription.
4. The submissions address the seriousness of the practitioner's conduct, including the fact that the practitioner and his brother each dispensed multiple months' worth of medications that could have posed a risk to a patient's life. It is noted that because of the delivery arrangement there was no contact with the patients.
5. Reference is made to the purpose of the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW) namely that the supply of Schedule 4 drugs should be closely controlled.
6. We note that the authorities referred to in the submissions are referred to and set out by us in Health Care Complaints Commission v Jason Vuong. We adopt those authorities as relevant in the case of this practitioner. We also adopt in respect of this practitioner our comments about the importance of adherence to the Pharmacy Board of Australia's Code of Conduct and the Pharmaceutical Society of Australia's Dispensing Practice Guidelines. While these documents are not legally binding, they represent best practice and uphold professional standards.
7. The submissions advance the proposition that both the practitioner and his brother failed in their role "as gatekeepers of Schedule 4 drugs, and in ensuring the integrity of the legislative and regulatory regime for their control". Very fairly the submission acknowledges that, in the practitioner's case, there are fewer instances of excessive dispensing, and he had a lesser degree of involvement in the delivery arrangement. We pause to note that it was the practitioner's brother who entered into the arrangement with Ms Trinh and who derived the financial benefit from it.
8. It is submitted that the conduct cannot be considered as aberrant or a mere error in judgment given the length of time the arrangement was in place, and that the arrangement only came to an end when Ms Trinh was charged by NSW Police. It is also asserted that there are instances where both the practitioner and his brother misled the PRU and the Council.
9. In his oral submissions, Mr Fuller, we would say appropriately, acknowledged that the practitioner's conduct was of a "lesser degree" than that of his brother. Reference is made to the text messages passing between the practitioner and Ms Trinh where the practitioner said "Ah. Ok Hopefully she takes correct dose". This occurred as part of a series of text messages between the practitioner and Ms Trinh when he explained he would order five boxes "and leave that for Jason then". He further texted "Each diabex x last 2 months. If I put through all on computer it will be for 10 months …too much". Ms Trinh responded "Pls do all". The practitioner further responded advising the drug was on the safety net and that he would supply just one box and that the patient should have "a few boxes of 10mg from before".
10. The submissions canvas the genuineness of the practitioner's asserted insight and remorse and suggest we should find there were some instances where the practitioner's answers to questions posed in cross-examination were evasive and, in particular, his evidence about his knowledge of Ms Trinh or the owner of the Good Life Healthfood store. It is also submitted the practitioner was evasive in answers about his brother ordering goods which were collected by Ms Trinh rather than acknowledging that he knew that Ms Trinh herself had ordered the goods. Reference is also made to the conflicting evidence before the Council about providing medications without labels and providing medications without a prescription and not checking whether a borrowed or owing prescription had been received.
11. We refer separately to the submissions on the topic of a prohibition order when we discuss that order.

The practitioner's evidence

1. The practitioner relied on two affidavits. His first affidavit was affirmed on 8 February 2022. In that affidavit the practitioner acknowledges the seriousness and inappropriateness of his misconduct in respect of dispensing multiple supplies of medications. He acknowledges his conduct not only put patients at risk but undermined the public's confidence in all pharmacists.
2. The practitioner deposes to not having worked as a pharmacist since April 2019 and that he has suffered financial stress and embarrassment as a result of his situation.
3. The practitioner refers to his compliance with continuing professional development and explains that since he stopped working as a pharmacist that he has reflected on his behaviour and enrolled in the PSA Ethics and Dispensing in Pharmacy Practice course in March 2019 which he completed in February 2020. He annexes to his affidavit certificates of completion of the four parts of the course. He also refers to undertaking additional CPD (continuing professional development) online pharmacy modules in 2021 and annexes a spreadsheet setting out activities undertaken and noting his learnings from those activities. He also annexed eight CPD Certificate from the Pharmaceutical Society of Australia dated November 2021 of various completed activities including "Avoiding the pitfalls: a practical discussion of pharmacist, proprietor response".
4. Also annexed to the practitioner's affidavit is his enrolment record from the University of Wollongong for Bachelor of Nutrition and Dietetics (Honours) which discloses seven courses completed in 2020 all at High Distinction level except one at distinction level. The course study is disclosed as "lapsed". Also in the same document is an academic record for the practitioner's enrolment in the Master of Nutrition and Dietetics degree which is shown as "active" but not yet completed. This record discloses courses undertaken in 2021 and 2022 with results at either High Distinction or Distinction level for 2021 subjects.
5. The practitioner deposes to developing an interest in dietetics, enrolling in a bachelor's degree at the University of Wollongong and that as a result of his high marks he was able to transfer to the Master of Nutrition and Dietetics in 2021. At para 11 he deposes: I am looking forward to using my own personal experiences and new degree to help others achieve their weight and diet goals. I was devastated when I found out that the HCCC is seeking an order prohibiting me from providing any health service for a period of time. If the prohibition order is made, I may be prohibited from completing my clinical placements for my final year and from working as a dietician after graduation.
6. The practitioner goes on to explain that the making of a prohibition order would "add further shame, distress and embarrassment for me and my family to endure". He explains that he would experience financial stress, may not be able to repay his student loan and have possible difficulties in finding a job unrelated to health care.
7. The practitioner deposes that, in order to obtain his degree, he must undertake 100 hours of full-time clinical placement that will be supervised. He deposes that, on graduation, he would like to become an Accredited Practising Dietitian, and this would require him being in a mentoring partnership program for 52 weeks with a minimum 12 monthly face to face meetings. He points out that unlike a pharmacist, a dietitian cannot dispense, prescribe or sell prescription medications. He undertakes to disclose to any mentor details of these proceedings.
8. At para 23 the practitioner deposes: I have a younger brother who is also a pharmacist. We jointly own [sic] pharmacy however I am not permitted to practice there. He is currently working there 6 days per week. If given the opportunity to practice in pharmacy again, I would like to help my younger brother once a week. I will continue to stay up to date with my CPD, frequently refreshing my knowledge on ethics and dispensing through the online modules and enrolling in mentoring programs.
9. The practitioner annexes to his affidavit a report of Hugo Rodriguez, Psychologist dated 1 January 2022. Mr Rodriguez was not required for cross-examination and no objection was taken to the admission of his report. Mr Rodriguez deposes to the practitioner attending his rooms for an assessment on 27 November 2022. In recording a history reported by the practitioner, Mr Rodriguez refers to the practitioner's action in dispensing excessive amounts of medication being "motivated primarily by his intention not to displease his patients as well as his brother who was his employer at the time". Mr Rodriguez opines: I also noted he seemed to have acted this way to avoid confrontation and that at the time he appeared to be influenced by what seems to be a cultural (Asian) upbringing fostering a tendency to avoid saying no to his older brother. It appeared to me that is a general tendency to please more senior persons. I believe in this regard it would be beneficial for [the practitioner] not to work under an older family member.
10. Under the heading "Diagnosis and Treatment" Mr Rodriguez states that he found no indication of any condition listed in the DSM-V (the Diagnostic and Statistical Manual of Mental Disorders - 5: American Psychiatric Association). He goes on to opine that the practitioner "has learned from the experience, in particular, when his license was suspended. He shows good insight into the need to follow correct dispensing procedures assertively". Mr Rodriguez concludes his report as follows: In my opinion it seems very unlikely that he may engage in similar inappropriate dispensing in the future.
11. The practitioner also relied on an affidavit affirmed on 31 March 2022. In that affidavit he deposes that following his initial assessment by Mr Rodriguez he attended two further sessions (22 February 2022 and 7 March 2022) where the issue of his assertiveness was discussed. He deposes that the psychologist does "not recommend that I need any further sessions".
12. The practitioner was cross-examined and answered questions on the topics of labelling, or lack thereof, dispensing with a prescription owing, and aspects of the arrangement with Ms Trinh with the benefit of a certificate under s 128 of the Evidence Act 1995 (NSW).

The practitioner's submissions.

1. We had the benefit of written and oral submissions by counsel for the practitioner, Mr Y Chen, who emphasised that the practitioner has acknowledged the seriousness of his conduct and the risk to which he exposed patients and the public by that conduct. But, he submitted, the practitioner's conduct must be considered to be of lesser seriousness than that of his brother because he was only working one day per week at Mak's Chemist. He worked at other pharmacies and no complaint is made about his conduct at those pharmacies.
2. Mr Chen emphasised that the practitioner had "come clean" when cross examined about supplying unlabelled medication to Ms Trinh. He submitted regard should be had to the fact that the practitioner acknowledged he had done the wrong thing, had three years to think about his conduct and now "do the right thing and be frank with the Tribunal". It is submitted that the practitioner's frankness shows a strong desire for reformation.
3. The submissions canvas the answers given in cross examination by the practitioner about his knowledge of the Good Life Health Food Store. It is submitted that the answers given by the practitioner to the PRU were, in part, as a result of his confusion. He also submitted that the evidence did not support the allegation that the practitioner knew whether an order was placed by Ms Trinh, or his brother, using the pharmacy's wholesale account details.
4. In the written submissions emphasis is placed on the practitioner's acknowledgment of the seriousness of his conduct, the remedial steps he has undertaken in completing ethics courses and the refresher course and that three years have elapsed since his suspension. Reference is made to the practitioner's voluntary attendance on the psychologist, and his devastation on learning the HCCC are seeking a prohibition order which would prevent him from completing his present academic studies and which may prevent him from practising as a dietitian at all. It is asserted that the evidence in this case falls short of the threshold of "substantial risk" to make a prohibition order.

Unsatisfactory professional conduct

1. We have already recorded that we accept and agree with Ms Croker's expert opinion, set out above about the practitioner's excessive dispensing conduct, which other than in respect of Patient E was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. We also find that the practitioner's conduct in dispensing medication on occasions without labels, or on the basis of a prescription owing, was improper and unethical. In reaching this finding we have regard to the interpretation of the words "improper and unethical" in s 139B (1) (l) in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65).

Professional misconduct

1. As the practitioner has acknowledged in his evidence, and submissions made on his behalf, his conduct was of a serious nature. The conduct potentially put patient safety at risk. The conduct showed a gross dereliction of professional care and a departure from the Guidelines which inform good practice.
2. Notwithstanding that we accept the practitioner's conduct was not of the same category as that of his brother, nevertheless in our evaluation when consideration is given the established particulars of Complaint One it was a serious departure from expected standards. When that conduct is considered with the admitted conduct in Complaint Two, the cumulative conduct warrants the suspension or cancellation of the practitioner's registration.
3. We find the practitioner's concession that he is guilty of professional misconduct is appropriately made.

Appropriate protective orders

1. The practitioner has now been precluded from practising as a pharmacist for over three years. He accepts that his conduct warrants the cancellation of his registration but seeks that he be permitted to apply for a review of that order in six months' time. The HCCC seek a period of two years before the practitioner may seek a reinstatement order.
2. We have already set out the HCCC's submissions in support of a two-year period. Essentially, the HCCC's position is the practitioner still lacks insight, that some of his answers in cross-examination were evasive, and that there is no guarantee because of his personality he may not defer to someone in authority rather than exercising an independent professional evaluation in a particular circumstance.
3. We find that the practitioner is remorseful for his conduct. That remorse is, in part, because of the embarrassment, shame and financial consequences of his suspension. However, we accept he demonstrates a level of insight into his conduct which is reflected in his acknowledgment of his wrongful conduct and not opposing an order for cancellation of his registration. His insight is also demonstrated by the remedial steps he has voluntarily undertaken by the courses taken and completed since 2019 particularly the ethics courses.
4. Although counsel for the HCCC was critical of the practitioner's answers to questions about his learnings from cognitive behaviour therapy undertaken with Mr Rodriquez, we find the practitioner now has an awareness of his susceptibility to please and is unlikely to again blindly follow a superior's instructions.
5. We find that the practitioner truthfully answered questions posed to him in cross-examination about his responses to the PRU questioning [transcript 4 April 2022 p 52 -53]. We do not find the practitioner was deliberately untruthful in response to questions about whether he was aware at the time that Ms Trinh had ordered products using the pharmacy's wholesale account system. We found some of his answers to be defensive, but we note he ultimately conceded that "After knowing everything, up to this point, yes, I do think it's a possibility" and that concerned him. We note that he readily conceded that when Ms Trinh asked for the National Diabetics Scheme password that he had spoken to his brother who said "Yeah, ok just hand it out" and that it was wrong for him not questioning his brother further at the time [transcript 4 April 2022 p 56]. The practitioner then conceded that it had been inappropriate for him to comply with his brother's request to hand out the password.
6. Principles relevant to the making of an order under s 149C (7) precluding a review period for a certain period of time is explained by Payne JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] as follows: The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order.
7. In this case, as acknowledged by counsel for the HCCC, the practitioner's conduct was not as serious as that of his brother who entered into the agreement with Ms Trinh, derived a financial benefit from it and dispensed many more excessive prescriptions than the practitioner. We find that the practitioner blindly accepted his brother's instructions, and he did so in dereliction of his own professional responsibilities. We do accept that cultural factors and the practitioner's desire to please played a contributing role in his conduct.
8. Weighing all relevant factors, including the admissions of the practitioner, the remedial steps he has undertaken including keeping up to date with courses run by the PSA, his academic achievement and psychological counselling, and balancing those matters against the seriousness of his conduct, we find a period of one year before he can apply for a review of the cancellation order should be imposed.

The prohibition order sought

1. The Tribunal's power to make a prohibition order is found in s 149C (5). That section provides as follows: (5) 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 (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.
2. Health Services are defined in s 4 of the Health Care Complaints Act 1993 (NSW) as follows: health service includes the following services, whether provided as public or private services - (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act.
3. A prohibition order is defined in s 138 of the National Law as follows: prohibition order has the meaning given by section 149C(5).
4. We note that there are two pre-requisites to the making of a prohibition order. First, an order must be made that the practitioner's registration is suspended or cancelled and secondly, the Tribunal must be satisfied that the practitioner poses a substantial risk to the health of members of the public. The authorities which discuss the concept of "substantial risk" are set out in the reasons in Health Care Complaints Commission v Jason Vuong. We now repeat our exposition of the relevant decisions. In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139] the Tribunal referred to a substantial risk being a risk that is material, and real or apparent on the evidence, not without substance or speculative by reference to Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96] and Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]. We note in Brush that the Tribunal found a "material" risk the conduct that subject of the complaint might be repeated but it was not a substantial risk and therefore declined to make the order sought. In Choi at [75] the Tribunal notes. The HCCC also seeks a prohibition order pursuant to s 149C(5) of the National Law to prevent the respondent from providing any health service. The Tribunal accepts that there is a "substantial risk to the health of members of the public" which is a precondition to the making of such an order, and that it is a risk that is real or apparent on the evidence presented and not a risk that is without substance, or which is fancy or speculative: Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Sharah [2015] NSWCATOD 99. We note that in Taylor the Tribunal adopted the assessment of risk referred to in Choi but observed the Tribunal had to be satisfied that the there is a "substantial risk". The Tribunal determined that it did not have appropriate expert evidence, nor was there any evidence that the medical practitioner the subject of the disciplinary proceedings had engaged in any inappropriate behaviour since his retirement. The Tribunal declined to make a prohibition order. In Health Care Complaints Commission v Tane (No 2) [2020] NSWCATOD 159 the Tribunal held that a nurse, who had engaged in inappropriate conduct with patients in a drug and alcohol facility including sharing personal information with the patients, seeking to borrow large sums of money from one patient and a loan of $6000 from a second patient, posed a substantial risk of engaging in like conduct if she engaged in certain health services. The Tribunal's finding of substantial risk was based on its assessment the nurse may engage in a similar manner with other patients, and because of her personal circumstances were such that she may not be in a fit and proper state to provide those services. In his oral submissions Mr Fuller referred us to the decisions of the Tribunal in Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 at [20] - [25] and to Health Care Complaints Commission v Grieve [2016] NSWCATOD 28 at [99]-[114]. The decisions in these matters turn on the facts in each case. In Shrimpton a substantial risk was identified if the nurse, who had behaved inappropriately with vulnerable patients was able to engage in health care services involving patient care. In Grieve the Tribunal suspended the practitioner's registration and found a lack of insight into the offending conduct.
5. We note in Grieve there is no in-depth discussion or examination of "substantial risk".
6. At the hearing we raised with counsel for the HCCC whether or not the practitioner's academic requirements in his present degree, including any clinical placement would be caught by the proposed prohibition order. Following the hearing we were provided with written submissions (described as Applicant's Note on Prohibition Order) on 12 April 2022.
7. The HCCC submit that any clinical placement would be caught by a prohibition order which precludes the practitioner from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW). The HCCC submit that the definition focuses on the nature of the services being provided not the nature of the person providing them. Reference is made to the definition of health practitioner (that is a natural person who is not a registered practitioner under the National Law.)
8. Reference is made to s 7 (3) of the Health Care Complaints Act. That section provides as follows: 7 What can a complaint be made about? … (3) A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned.
9. The HCCC submit that the reference to "dietitian …services" should not be read as limiting services to services provided by a qualified or practising dietician. Reference is made to the decision in Kaye v Health Care Complaints Commission [2017] NSWCATOD 157. The note extracts from material annexed to the practitioner's first affidavit of what is involved in a clinical placement. At para 9 it is submitted that "students will be providing services of a kind provided by a practising dietitian during their clinical placements". It is submitted to the extent that is the case, the practitioner would be providing a health service. We accept the submission of the HCCC is soundly based.

Why the HCCC say a prohibition order should be made.

1. At the commencement of his oral submissions on this topic, Mr Fuller properly acknowledged that a pre-condition of making a prohibition order is that the Tribunal must be satisfied that a person poses a substantial risk to members of the public.
2. Counsel submitted the order is warranted first, because of the practitioner's lack of honesty, secondly because of shortcomings in his insight and thirdly his training and professional development. Mr Fuller stressed concern about the practitioner's behaviour where he "was just acting effectively under the dictation of someone else". It was submitted that we would have to be confident there has been a significant reformation of the practitioner's conduct to be satisfied he can practice or provide any health service safely in the future.

The practitioner's submissions in opposition to the making of a prohibition order

1. We have earlier noted that the practitioner opposes the making of a prohibition order, or in the event that such order is made, that it be limited to permit him to undertake a clinical placement as part of his present degree course.
2. Mr Chen submitted that taking all the steps necessary to complete his degree is not contrary to the objective of protecting the public, and it would be helpful for him to undertake a clinical placement, a step which would be rehabilitative.

Consideration prohibition order

1. We are unable to accept the submissions of the HCCC on this topic. First, and importantly we do not consider the HCCC have satisfied the onus of proof that the practitioner poses a substantial risk to the health of the public such that a prohibition order should be made. Our reasons for that conclusion are as follows.
2. We accept that the practitioner was less than frank in answers given to the PRU and the Council. We also accept his conduct as established in these proceedings was most serious and we do not ignore that conduct which we have recognised in cancellation of his registration and a twelve-month period before he can seek a review of that cancellation. His conduct before the PRU and the Council occurred three years ago. Before us the practitioner acknowledged that he had been less than frank in some answers. But he has acknowledged his unsatisfactory professional conduct and conceded his conduct constituted professional misconduct. His Reply acknowledging his conduct was filed some two months prior to the hearing and in accordance with directions made in November 2021.
3. The unchallenged evidence before us is that the practitioner has voluntarily participated in and completed the four-part ethics course, and other continuing professional development. He is seeking to rehabilitate himself with his present university studies in which he has achieved marks at the highest standard. We find he is unlikely to jeopardise these achievements by future transgressions. He expresses a desire to return to the practise of pharmacy. We note his evidence that his younger brother is a pharmacist proprietor and that the practitioner wishes, if he again obtains registration, to work with him. This is a further reason he is unlikely to engage in conduct which would affect the health and safety of the public as any re-instatement order will be dependent on his future conduct.
4. The practitioner was forthcoming in disclosing that he had first seen a psychologist following advice from his lawyers. However, on his own volition, he undertook two further sessions with the psychologist and undertook reading recommended by that professional.
5. We find this matter is clearly distinguishable from cases such as Health Care Complaints Commission v Kaseme and Health Care Complaints Commission v Tane (No 2). In Kaseme the practitioner had criminal convictions and had not ruled out engaging in operation of a clinic similar to that relevant to the complaint. Accordingly, the Tribunal found that she posed a substantial risk to the public if she engaged in a health service. In Tane there was a substantial risk that vulnerable patients could be exposed to exploitative conduct if the practitioner provided any kind of nursing services.
6. In summary, we are not satisfied the practitioner poses a substantial risk to the public and a prohibition order is not necessary or appropriate.

Conclusions

1. For the reasons set out above, we have independently found the practitioner to be guilty of unsatisfactory professional conduct and professional misconduct. We are satisfied to reflect the serious nature of the conduct, which now occurred in the period some three to five years ago, that the practitioner's registration should be cancelled and that a period of twelve months from the date of our orders should expire before the practitioner can seek registration.
2. We are not satisfied on the evidence before us that the practitioner poses a substantial risk to the health of the public and we decline to make a prohibition order.

Costs

1. As noted earlier in these reasons, the practitioner does not oppose an order that he pay the HCCC's costs in these proceedings. We accept that is an appropriate concession and accordingly we will make an order for payment of costs as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

ORDERS 1. Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) (the National Law) the registration of David Vuong (the practitioner) is cancelled. 2. Pursuant to s 149C (7) of the National Law the practitioner shall not make an application for review of Order 1 of these orders for a period of one year from the date of this decision. 3. The practitioner is to pay the costs of the Health Care Complaints Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

Appendix A AMENDED COMPLAINT The Health Care Complaints Commission of Level 12, 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 (NSW) and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT David Tai Thanh Vuong of 18 Bower St Bankstown NSW 2200 ('the practitioner"), being a pharmacist registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a pharmacist in New South Wales on 13 December 2011. During the period of the events that are the subject of the complaints ("relevant period"), the practitioner was an employed pharmacist at Maks Chemist on Kingsgrove Road, Belmore, New South Wales ("the Pharmacy"). The practitioner typically worked at the Pharmacy on Tuesday each week. The practitioner's brother, Mr Jason Vuong, was the pharmacist proprietor of the Pharmacy and typically worked there Monday and Wednesday to Friday each week. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) 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. BACKGROUND TO COMPLAINT ONE This complaint relates to the quantities of drugs that the practitioner dispensed to Patients E, G, H DV-H and I DV-I. Each of the drugs identified in the Annexure is a restricted substance within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA), being a drug contained in Schedule 4 of the Poisons List proclaimed under section 8 of the PTGA. For the purposes of the particulars set out below, what was appropriate in the circumstances is to be judged by reference to, among other things: (i) the dosage prescribed; (ii) the dispensing history of the drug for the patient: (iii) | other drugs that were being or had recently been dispensed for the patient; (iv) all of the circumstances of the patient, including any reason given for requiring multiple supplies at once; (v) whether the practitioner made adequate inquiries about the matters in subparagraphs (ii) to (iv) above; (vi) the risks associated with the drug, including the risks of overdose and of misuse or abuse; and (vii) the standards set out in: (A) the Australian Medicines Handbook as in force at the relevant time; (B) the Full Prescribing Information published by MIMS Australia for the relevant drug at the relevant time; (C) the Product and Consumer Medicine Information published by the Therapeutic Goods Association for the relevant drug at the relevant time; (D) the PTGA and Poisons and Therapeutic Goods Regulation 2008 (NSW); (E) the Pharmacy Board of Australia "Guidelines for dispensing of medicines" issued September 2015 ("Dispensing Guidelines"); (F) the Pharmaceutical Society of Australia "Dispensing Practice Guidelines" 2017. PARTICULARS OF COMPLAINT ONE Each of the particulars is relied on individually or in any combination. Patient E

1. On 24 April 2018: (a) the practitioner dispensed for Patient E three units of Invega Sustenna (paliperidone) Prefilled Syringe 150mg as set out in the Annexure; and (b) dispensing that quantity of the drug at one time was not appropriate: (i) having regard to the maximum recommended dosage (150mg per month); (ii) having regard to the dispensing history of paliperidone for Patient E; and (iii) otherwise in the circumstances. Patient G
2. On 14 March 2017: (a) the practitioner dispensed for Patient G six packets (360 tablets) of Amisulpride Winthrop (amisulpride) 400mg as set out in the Annexure; and (b) dispensing that quantity of the drug at one time was not appropriate: (i) having regard to the usual dosage (one tablet twice daily), the dosage prescribed (one tablet three times a day for two weeks) and the maximum recommended dosage (1200mg daily); (ii) having regard to the risks to a patient of using excessive quantities of amisulpride; (iii) having regard to the practitioner's concurrent dispensing to Patient G of two packets (200 tablets) of Largactil (chlorpromazine hydrochloride) 100mg; and (iv) otherwise in the circumstances. Patient H DV-H
3. On 22 August 2017: (a) the practitioner dispensed for Patient H DV-H six packets (168 tablets) of Lercan (lercanidipine hydrochloride) 10mg, six packets (180 tablets) of Crosuva (rosuvastatin) 5mg, six packets (180 tablets) of Candesan Combi (candesartan cilexetil and hydrochlorothiazide) 16mg - 12.5mg and six packets (336 tablets) of Nesina Met (alogliptin and metformin) 12.5mg - 850mg as set out in the Annexure; and (b) dispensing that quantity of the drug at one time was not appropriate: (i) having regard to the usual dosages of those drugs (Lercan: one tablet daily; Crosuva: one tablet daily; Candesan Combi: one tablet daily; Nesina Met: one tablet twice a day), and the dosage prescribed of Nesina Met (one tablet twice a day); and (ii) otherwise in the circumstances.
4. On 1 February 2018: (a) the practitioner dispensed for Patient H DV-H five packets (1500 tablets) of Panamax (paracetamol) 500mg, five packets (150 tablets) of Crosuva (rosuvastatin) 5mg, five packets (150 tablets} of Candesan Combi (candesartan cilexetil and hydrochlorothiazide) 16mg - 12.5mg, five packets (140 tablets) of Lercan (lercanidipine hydrochloride) 10mg and five packets (280 tablets) of Nesina Met (alogliptin and metformin) 12.5mg - 850mg as set out in the Annexure; and (b) dispensing that quantity of those drugs at one time was not appropriate: (i) for the drugs other than Panamax - having regard to the usual dosages of those drugs as set out in particular 3(b)(i); (ii) for Panamax - having regard to the dosage prescribed (two tablets three times a day) and the maximum recommended dosage (8 tablets per day); and (iii) otherwise in the circumstances.
5. On 18 December 2018: (a) the practitioner dispensed for Patient H DV-H five packets (1500 tablets) of Panamax (paracetamol) 500mg as set out in the Annexure; and (b) dispensing that quantity of the drug at one time was not appropriate: (i) having regard to the dosage prescribed (two tablets three times a day) and the maximum recommended dosage (8 tablets per day); and (ii) otherwise in the circumstances. Patient I DV-I

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: 29 July 2022