Health Care Complaints Commission v Gong

The HCCC Complaint

1. The complaint dated 15 April 2020 was in the following terms: The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Ms Kathy Gong ("the practitioner") of [address redacted], being a pharmacist registered under the National Law, BACKGROUND TO ALL COMPLAINTS On 30 April 2009 the practitioner was first registered as a pharmacist after obtaining a Bachelor of Pharmacy degree at the University of Sydney in 2008. From 2012 until 31 January 2019 the practitioner was the sole proprietor of the Harmony Pharmacy. In the period March 2018 to August 2018 the practitioner entered into an agreement and did supply through her company Kapital K Group Pty Ltd to Person A through Patient A's company Global Resource Tradings Pty Ltd a total of 2432 units of Gardasil 9 Human Papillomavirus 9-valent 0.5ml vaccine ("Gardasil 9"), a cancer vaccine, obtained by the practitioner from third parties in the amounts as set out in annexure A. COMPLAINT ONE Pursuant to s144(a) of the National Law, the Commission complains that on 28 November 2018 at the Sydney Downing Centre Local Court of NSW, the practitioner was convicted of 'Prohibition on wholesale supply of certain substances for therapeutic use', under section 9(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) ("the three supply counts"). COMPLAINT TWO After becoming aware on 28 November 2018 of being convicted of the three supply counts the practitioner failed to give the Pharmacy Board of Australia written notice of the conviction within 7 days, contrary to section 130(1)(a)(ii) of the National Law. The practitioner is thereby guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law.
2. As stated above, the HCCC sought orders that the respondent was guilty of unsatisfactory professional conduct and that her registration as a pharmacist be cancelled with a non-review period of two years. Protective orders prohibiting the respondent from being involved in the provision of pharmaceutical services were also sought.

Factual Background

1. The following uncontested factual background is taken from the submissions filed by the HCCC. Each of the factual matters was referenced to the evidence before the Tribunal and, in so far as is necessary, we make factual findings accordingly: 1. On 30 April 2009 Ms Kathy Gong (the Respondent) was registered as a pharmacist. In 2011 she purchased a 50% interest as a partner in the Harmony Pharmacy and Wellness Clinic located at 912 Military Road, Mosman, New South Wales. In 2012 she became the sole proprietor of the Pharmacy and remained in that position until 31 January 2019. In 2014 she purchased an interest in the Shane Henry Chemist, another pharmacy in Mosman, which she did not work in. 2. Between around April and June 2018, Ms Gong admits to having supplied 2,432 units of Gardasil 9 to Mr Sze Lun (James) Mak. She appears to have received from Mr Mak more than $500,000 for those supplies, which she invoiced under the description 'Anthogenol', a health supplement that does not require a wholesale licence to export. She says her profit was in the order of $30,000 or $35,000. 3. Ms Gong did not hold a wholesaler's licence or authority to supply Gardasil by wholesale, as required by s 9(1) of the Poisons Act. 4. Mr Mak was an associate of Ms Gong. She had previously supplied infant formula and vitamins to him and had sought to supply (actual) Anthogenol to him, which he was not interested in. She obtained most of the Gardasil 9 she supplied to Mr Mak from another local pharmacist, Mr Ziad Bazzi, who was also one of the other partners in the Shane Henry Chemist. The remainder came from her wholesaler. 5. Following an investigation, on 7 August 2018 the Australian Federal Police (AFP) executed a search warrant at the Pharmacy. At the same time Ms Gong was served with a notice under s 35 of the Poisons Act requiring her to provide information in relation to her supplies of Gardasil 9 in the preceding 12 months. In response to that notice Ms Gong provided a schedule stating that the 2,432 units of Gardasil 9 were supplied on 'Prescription'. That was not true. 6. On 16 October 2018, Ms Gong was charged with three offences under s 9(1) of the Poisons Act. Two counts related to discrete supply events on 7 June 2018 and 13 June 2018 and the third related to the course of supplies between April and June 2018. 7. On 21 November 2018 Ms Gong pleaded guilty to the offences . She was initially sentenced to an aggregate term of eight months' imprisonment and served seven days in custody. On appeal, the District Court upheld the duration of the sentence but held that it was to be served by way of an intensive correction order. 8. On 22 October 2018 the Pharmacy Council of NSW suspended Ms Gong's registration as a pharmacist pursuant to s 150 of the National Law. On 20 February 2019 Ms Gong sought a review of that decision, but the suspension decision was affirmed. Her registration remains suspended. 9. On 31 January 2019 Ms Gong sold the Pharmacy and her interest in the Shane Henry Chemist on 31 December 2018. 10. Ms Gong was the subject of a previous complaint to the Pharmacy Council, in 2014, for dispensing expired medication. The complaint was resolved by Ms Gong providing updated procedural documents.

Unsatisfactory Professional Conduct

1. As observed above, the respondent has admitted the complaints. That admission was not only through her solicitor, but also confirmed in [15] of her affidavit sworn 19 November 2020. As such, the Tribunal may exercise any of the disciplinary powers in subdivision 6 of the National Law: s 149. In doing so the Tribunal must still make relevant findings of fact and reach its own conclusion as to whether the conduct engaged in by the respondent and the subject of the complaint, warrants the orders sought by the HCCC.
2. Complaint one is that the respondent has been convicted of the offences under the Poisons Act. The consequence of those convictions is dealt with below.
3. In respect to complaint 2, we are satisfied that the respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law by failing to notify the Pharmacy Board of her conviction for breach of the Poisons Act as required by s 130(1)(a)(ii) of the National Law. It is not strictly necessary to deal with the respondent's explanation for this failure as set out in her affidavit sworn 14 August 2020 (at [16]-[24]). When that affidavit was sworn, the respondent admitted that she had failed to notify the Pharmacy Board as required but did not expressly admit that this amounted to unsatisfactory professional conduct. She has now done so. We do note, however, that in so far as she said in her affidavit of 14 August 2020 that she was unaware of her obligations to notify, we would not have regarded this as a sufficient explanation such that a different result would have been found.

Are the orders sought appropriate?

1. The HCCC seeks an order that the respondent's registration as a pharmacist be cancelled and the respondent not be able to review the order for a period of two years. It relies on s 149C(1)(c) and (7) of the National Law. Section 149C relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (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… (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… … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
2. As set out above, the respondent's registration has been suspended since 22 October 2018. We agree with the HCCC that her registration as a pharmacist should be cancelled and that she be prohibited from applying for a review of the orders we will make for 2 years.
3. In making these orders, we note that the paramount consideration in exercising the disciplinary powers under the National Law is the protection of the health and safety of the public. Put another way, the exercise of the disciplinary powers is protective, not punitive: see for example Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. The possible punitive effect of the orders is a matter, however, should be kept in mind to the extent that they are relevant in determining what is appropriate to achieve the protective purpose in particular circumstances: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [73]. Further, as the HCCC submitted, the respondent is not automatically entitled to any credit for the time she has been suspended. The question is whether cancelling her registration is appropriate to protect the public and maintain professional standards: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [73].
4. In making the orders we also accept that protection of the public by cancellation of the respondent's registration includes not only protection from her, but "the similar misconduct or incompetence of other practitioners": Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. It also includes upholding public confidence in the standards of the profession, including by denouncing the misconduct as unacceptable: Do, ibid. at [35].
5. Counsel for the HCCC took the Tribunal through the evidential material before it. He submitted in this case that cancellation was appropriate, inter alia, because the respondent had given inconsistent and contradictory explanations to the Pharmacy Council and the Court on the sentencing hearings which did not align with the true factual position. This included that she had entered into the transactions with Mr Mak for altruistic reasons (for the benefit of women in Hong Kong) whereas WeChat transcripts showed that she was doing it for financial gain. Indeed, the Magistrate who originally convicted her found that she was doing it for financial gain, and the District Court Judge on appeal of sentence found that the explanation that she was doing it for altruistic reasons was untruthful.
6. We agree with the submissions made by Counsel for the HCCC on this point. There can be no doubt on the evidence that the respondent undertook the sale of the Gardasil for financial gain. She was the one who initiated the transaction with Mr Mak. She did not ask Mr Mak for prescriptions for the Gardasil 9, rather she told him "don't worry about it". She had invoiced him for a different product name at her suggestion. She was aware that the sale of such a large number of doses of the Gardasil, some 2432 that are known, would impact the supply of that vaccine in Australia.
7. Whilst noting her instructions that the respondent accepted that the orders sought by the HCCC were appropriate and her conduct was wrong, the respondent's solicitor noted that the respondent has been suspended for two years and her acceptance of the appropriateness of the cancellations and non-review orders means that she will not be able to work as a pharmacist for a very long time with the attendant significant financial consequences. She submitted that the whole process has been very difficult and upsetting to the respondent who now suffers from anxiety. She submitted that the respondent had been penalised by the Courts and initially spent six days in prison which was a very confronting experience for her.
8. In all of the circumstances we accept the HCCC's submissions that the respondent engaged in a deliberate course of conduct, knowing it was wrong. Whilst the respondent now acknowledges that cancellation is an appropriate order, the Tribunal wishes to state that it condemns her conduct and finds (and would have found if there had been a contest about the orders) that the only appropriate order is that of cancellation of the respondent's registration.
9. The fact that the respondent has already been punished by the criminal justice system, or that she has already been suspended for two years, does not mean that, in the exercise of the Tribunal's disciplinary powers for the protective purpose, any different or lesser order than cancellation should be made (see the authorities in [18] above). Also, that there will be significant financial consequences on the respondent by reason of the orders we will make is not, in our opinion, a factor which would mean that a lesser order, or shorter period of non-review should be made. In the truest of senses, all of these consequences are as a result of the respondent's own conduct and the choices she made to engage in the disgraceful and criminal way she did.
10. We also accept that a non-review period of two years is appropriate. We observe that the respondent had commendably sought treatment for her psychological condition. A report of her treating psychologist was in evidence. Whilst her solicitor informed the Tribunal that the respondent is willing to undergo further therapy, it is unclear whether the respondent is still being treated. Of course, her mental health may be a matter for the relevant authority which considers any application she may make for re-registration in the future. Whether she continues to have, or needs, further psychological therapy is a matter for the respondent.

Prohibition Orders

1. The HCCC also seeks an order under s 149C(5) of the National Law prohibiting the respondent from providing pharmaceutical services. We are satisfied that the conduct of the respondent is such that unless such an order was made she would pose a substantial risk to the health of members of the public.

Costs

1. The HCCC also seeks an order that the respondent pay its costs of the proceedings in a specific amount pursuant to Sch 5D. cl 13(3A) of the National Law. It has not put on any evidence as to what that amount should be.
2. In our view there is no disentitling conduct of the HCCC which would mean that the usual rule of costs following the event should not apply. The respondent says she cannot afford to pay any costs, but there is no evidence before the Tribunal as to her financial circumstances - even if that was a matter which was relevant to the discretion to order her to pay the HCCC's costs.
3. In the circumstances, our view is that the respondent should pay HCCC's costs of the proceedings as agreed or assessed.

Orders

1. The orders we therefore make are: 1. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law. 2. The respondent's registration as a pharmacist is cancelled. 3. Pursuant to s 149C(7) of the National Law, the respondent may not make an application for a review of these orders for a period of two years from the date of these orders. 4. Pursuant to s 149C(5) of the National Law, the respondent is prohibited from providing pharmaceutical services. 5. The respondent is to pay HCCC's costs of the proceedings as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2020