Health Care Complaints Commission v Jason Vuong

Background

1. The practitioner was first registered as a pharmacist in November 2009.
2. In 2011 the practitioner purchased the pharmacy known as Mak's Chemist at Belmore (the pharmacy). He was at all relevant times the sole proprietor of the pharmacy. The practitioner sold the pharmacy in 2019.
3. The practitioner's brother, Mr David Vuong is also a pharmacist. He worked in the pharmacy as a locum on one day each week. Mr David Vuong is also subject of disciplinary proceedings heard at the same time as these proceedings.
4. As earlier noted, in about 2015 the practitioner entered an arrangement with Ms Trinh. Ms Trinh is a family friend of the practitioner's cousin. Ms Trinh operated a health food store known as Good Life Health Foods at Cabramatta. In 2019 Ms Trinh was charged with a number of offences under the Crimes Act 1900 (NSW) in respect of unlawfully obtained pharmaceutical products which may be reasonably suspected of being stolen. She was also charged with supplying a restricted substance, other than by wholesale. The goods which are set out in the Court attendance sheet detail a number of prescription only drugs, including drugs listed in Schedule 4D to the Poisons and Therapeutic Goods Act 1966 (NSW). Ms Trinh was subject of an earlier investigation in 2016 following the NSW Ministry of Health seizing "a significantly large amount of prescribed medication".
5. On 11 April 2019 the PRU lodged a complaint about the practitioner with the HCCC.
6. On 11 May 2019 following a hearing under s 150 of the National Law the practitioner's registration was suspended.
7. At the time of this hearing the practitioner was operating a private gym at Waterloo, Sydney and was engaged in writing for a not-for-profit organisation, National Prescribing Service (NPS).

The practitioner's Reply and Affidavit

1. As noted, the practitioner, other than a minor dispute about the background set out to Complaint Two, admits the Amended Complaint. His Reply to the original complaint was dated 12 November 2021 and signed by his legal representative.
2. The practitioner relied on an affidavit affirmed on 9 February 2022. In his affidavit the practitioner expresses remorse for his inappropriate unprofessional conduct and states "[t]here was no excuse for my actions and I accept full responsibility for what I have done".
3. The practitioner goes on to acknowledge the potential harm his actions may have caused to patients receiving the medications and deposes "[ his actions] may impact the community in general if these medicines were to fall into wrong hands". He also deposes that he had abused his position "as a boss and as older family member to ask a younger family member to participate in unethical and unprofessional conduct". He deposes to being sorry for his actions.
4. The practitioner refers to his financial loss and embarrassment because of his actions.
5. We refer to the practitioner's affidavit and oral evidence later in these reasons when we discuss appropriate protective orders.

The practitioner's admissions

1. At the hearing the practitioner made a number of significant concessions during his cross-examination. His evidence on a number of topics was different to his evidence given to the PRU and the Council. His evidence on these topics was given after he received the benefit of a certificate under s 128 of the Evidence Act 1995 (NSW).
2. The practitioner conceded he knew that neither Ms Trinh or her husband were registered pharmacists, nor was there a pharmacist at the health food store and he knew nothing about Ms Trinh's background. He agreed that he "entered into an arrangement to supply prescription drugs to an unqualified intermediary who [he] knew almost nothing about [transcript 4 April 2022 p 14] and that the arrangement was essentially for his financial benefit.
3. The practitioner conceded that, on some occasions, he supplied products (both prescription medicines and "over the counter" products) in multiple units of the same item at one time. He also acknowledged that he gave Ms Trinh direct access to the pharmacy's wholesale account and that products ordered by Ms Trinh would be delivered to the pharmacy. At times he did not know what had been ordered until it arrived at the pharmacy. Items ordered by Ms Trinh included Schedule 2 and Schedule 4 drugs.
4. The pharmacist's evidence was that he regarded Ms Trinh as an Agent for the patient although he did not know if this was true. He said he thought she paid him with money that was paid by the patient [transcript 4 April 2022 p 17]. He acknowledged that he never had any contact with a patient and did not know if Ms Trinh was "effectively on selling the products". The practitioner agreed it was possible that Ms Trinh was "supplying prescription medications for customers for whom they were not prescribed" [transcript 4 April 2022 p 19].
5. The practitioner was cross examined about a text message from Ms Trinh to him about the supply of two boxes of the Schedule 4 drug, Allegron 25 which had a short expiry date. Ms Trinh texted "Customer don't want short. Ship oversea". The practitioner replied "Okay then, no stock at wholesaler". The practitioner agreed, with hindsight, the message "should have triggered some alarm bells" for him.
6. Significantly, the practitioner also agreed that Ms Trinh, on occasions, instructed the practitioner whether he should, or should not, label a medication. The practitioner made no inquiries with the patients themselves about why their medications should not be labelled, nor did Ms Trinh tell him why the patient wanted unlabelled medication. This evidence is contrary to the evidence the practitioner gave to the PRU and before the Council at the s 150 hearing. Before us the practitioner explained that he had time to reflect, and now wanted to be transparent.
7. When cross-examined on the topic of unlabelled medications, and in particular the suggestion that the unlabelled medications might be going to someone other than the patient, the practitioner said: It did raise that suspicion, but I chose to look the other way at the time [transcript 4 April 2022 p 24]
8. The practitioner also conceded that he had been dispensing multiple repeats of medications at the one time but had spread out the process of the dispensing. He also agreed it was possible that he had been asked by Ms Trinh to dispense before he had received a prescription. The following evidence of the practitioner is illuminating: Q. So do you say that on every occasion when you dispensed an owing script, you spoke to Ms Trinh and asked for clarification? A. Well, if she asked for an owing but she didn't specify the patient, then I would have to check which patient it was for. Q. I'm not asking about which patient, I'm asking about the reason why she was asking you to dispense an owing script. A. No, I didn't check the reason. Q. It's the case, isn't it, that you were just dispensing these owing scripts because Ms Trinh asked you to? A. Yes. Q. It was to, in part, maintain a steady source of business for your pharmacy? A. Yes. Q. Which translated to money for you? A. Well, only when the script was returned. Q. You recall telling the PRU and the Pharmacy Council that you would always wait for a script before dispensing? A. Yes. Q. That wasn't true, was it? A. Well, the concept of owing an emergency supply is giving it without a script. Q. Yes. But you told the PRU and the Pharmacy Council that you wouldn't do that, didn't you? A. I told them that I wouldn't give a medication without a script, yes. Q. And you agree that that wasn't true? A. Yes. [transcript 4 April 2022 p 29]
9. The practitioner also conceded that he had swapped or substituted medications in the form of a different brand or form or quantity of a medication that was prescribed in the script [transcript 4 April 2022 p 30].
10. The practitioner also conceded that he had never provided any direction to a patient about the proper use of the medications he was supplying and that could cause harm to patients. He also agreed harm could be caused if the medications were being diverted into the community [transcript 4 April 2022 p 31].
11. Finally, he conceded when he had provided medications without a script and Ms Trinh would pay the cost of the medication and that his conduct in so doing was inappropriate [transcript 4 April 2022 p 33].

Disciplinary proceedings - purpose

1. These proceedings are brought under Part 8 of the National Law. Section 3A of the National Law provides that in dealing with any matter under the law that the health and safety of the pubic are the paramount consideration.
2. The purpose of disciplinary proceedings is well explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] 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.

Onus and standard of proof

1. There is no dispute that the onus of proof is that of the HCCC to establish the complaints as particularised in the Amended Complaint.
2. Recent decisions of this Tribunal have referred to relevant authorities on the standard of proof of proceedings in a Tribunal (see Health Care Complaints Commission v Desland [2022] NSWCATOD 13 at [21]-[24]). Proof is to the civil standard and satisfaction must be commensurate with the seriousness of the complaint and the consequences of any findings made.

Protective orders

1. The Tribunal's function is protective, and any orders made are not to punish the practitioner, but to protect the public. Such orders act as a deterrent to other practitioners not to engage in like conduct and are designed to uphold the standards and reputation of the profession (see Health Care Complaints Commission v Do [2014] NSWCA 307).

Unsatisfactory professional conduct

1. These proceedings are agitated by the HCCC under s 139B (1) (a) and or (l) of the National Law. Those provisions are follows: (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 an allegation of professional misconduct. Professional misconduct is defined in s 139E of the National Law 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. In this case the practitioner in his Reply has conceded in writing that he is guilty of unsatisfactory professional conduct and professional misconduct. Accordingly, s 165H is relevant. That provision is as follows: 165H No inquiry required if complaint admitted [NSW] No inquiry need be conducted into a complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.
4. While it is unnecessary for us to conduct an inquiry into each particular of the complaint, in order to consider whether the proposed protective orders are appropriate, we must examine the admitted conduct and determine what protective orders should flow from that consideration.

The expert evidence

1. The HCCC rely on an expert report of Ms Nerida Croker dated 29 July 2020. In her report Ms Croker deals individually with each of the patients identified as Patients A to K.
2. Ms Croker notes that "[t]he Pharmacy Board Guidelines for dispensing specifically refer to face to face counselling being preferred" but this can if necessary be done on the phone or in writing. She also notes that generally if a delivery service is offered that it is generally provided by an employee of the pharmacy. She notes that it would generally be expected that medications are only delivered to a patient when they request them, "whether by phone or email or other communication, hence they would be expecting them and if they were not received this information would be conveyed to the pharmacist immediately".
3. Ms Croker does not accept the practitioner's explanation for dispensing a number of units of a medication (in the case of Patient A, 6 units of Symbicort 400 in a four-month period) because of the "safety net" and opines that this is not a sufficient explanation as to why three supplies were given on the same day.
4. Ms Croker is also critical of the practitioner's dispensing multiple repeat prescriptions on the same day again by reference to the Board's guidelines (Pharmacy Board of Australia: Guidelines for Dispensing Medicines") as this may "not be in accordance with the prescriber's intention and is contrary to good pharmaceutical practice".
5. The inappropriateness of the practitioner's dispensing is highlighted in Ms Croker's report when discussing Patient F. She notes that the dispensing of 900 tablets of Gemfibrozil was significantly below the standard when he dispensed well over a year's supply. Similar criticism is, in our view, appropriately levelled at the practitioner's dispensing in respect of Patients G, H, I and J. In respect of the dispensing for Patient K, Ms Croker explains the risks associated with anti-depressant medication and notes the practitioner's failure to contact the patient and discuss an increased dose.
6. In discussing the practitioner's involvement in supplying medications to Ms Trinh, at paras 119 to 121 of her report, Ms Croker expresses her strong criticisms of the practitioner's conduct.
7. At para 154 of her report, Ms Croker opines that the practitioner's conduct "in dispensing of multiple supplies of medications to patients is clearly in direct opposition to the guidelines".
8. Ms Crocker concludes her report at para 183 noting: In all, the quantities of medications dispensed, and the references to swapping prescriptions or that the person could not have any more for a certain time may suggest that [the practitioner] should have been aware that he was supplying medications which were not for therapeutic use for patients. The potential for both fraudulent transactions through the PBS and the possibility that he knowingly supplied medications which should have only been available in a pharmacy to Ms Trinh is of great concern.
9. Ms Croker was not required for cross-examination. We accept the opinions set out in her report, and note that the practitioner, as a result of his concessions in his oral evidence, confirms much of Ms Croker's criticisms of his behaviour.

Submissions on protective orders

1. We had the benefit of comprehensive written submissions provided by Mr D Fuller, counsel for the HCCC. These submissions were provided prior to the cross-examination of the practitioner and do not reflect the concessions he made in cross-examination.
2. In support of the protective orders sought, counsel's submissions refer to the seriousness of the conduct engaged in by the practitioner. It is noted that the arrangement with Ms Trinh occurred over a two-year period and involved in most instances the dispensing of multiple months' worth of a drug, and in some cases a year's supply of a drug. These included medications which, if misused, could have risked a patient's life or health.
3. The submissions also note that the practitioner and his brother for a period of more than three years supplied large quantities of pharmaceutical products to an intermediary who was not a registered practitioner.
4. The submissions refer to the legislative and regulatory scheme under the Poisons and Therapeutic Goods Act 1966 (NSW) and the Therapeutic Goods Regulations 2008 (NSW) (the regulations) and the significant restrictions on the supply of Schedule 4 drugs including a general prohibition on the wholesale supply of such drugs without a wholesaler's licence or authority, and a general prohibition on their supply by a pharmacist other than by wholesale except in accordance with a prescription. The submissions also refer to the restriction on supply which is not "in accord with the recognised therapeutic standard of what is appropriate in the circumstances".
5. The submissions refer to the important role played by pharmacists in the legislative and regulatory scheme. We accept the soundness of that submission. The importance of the pharmacist's role is cogently explained in Health Care Complaints Commission v Naama [2021] NSWCATOD 109. As has been endorsed often by this Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law engages in conduct which constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner There is no reason why these comments made in Spicer should not apply equally in the case of pharmacists who are also given the privilege of supplying restricted drugs to the public, including drugs of addiction in response to a prescription issued properly and appropriately, and subject to the duty of care which is inherent in the exercise of their profession. Indeed, pharmacists have been described in this Tribunal as being representative of the "gateway" to access to these drugs by the public. As such there are very good policy reasons why the responsibility of pharmacists extends beyond the filling of prescriptions. As will have been seen from our discussion of the various provisions of the PTGR, pharmacists are required by law to make an assessment of the authenticity of a prescription for these drugs, the appropriateness of those drugs for use by patients especially having regard to the quantity and frequency of their use, and the period over which the drugs are to be used. There are also extensive requirements to ensure that these drugs are secured and that appropriate records are kept to ensure that the receipt and dispersal of these drugs are recorded by pharmacists.
6. Other relevant remarks are found in the Tribunal's decision in Health Care Complaints Commission v Fearon [2018] NSWCADOD 26 at [165] as follows: In our view, in the absence of a cogent reason, a pharmacist who in breach of the PTGR knowingly supplies prescribed medication, in particular, restricted substances and drugs of addiction, without a prescription or repeat authorisation, is unfit to hold registration as a pharmacist. That conduct not only constitutes an offence and puts at risk the health and safety of members of the public, it demonstrates a lack of integrity. The effectiveness of the statutory scheme governing the retail supply of prescribed substances and drugs of addiction requires pharmacists to act with integrity and to scrupulously adhere to the statutory requirements governing the supply of those drugs.
7. The submissions refer to the importance of pharmacists adhering to the Pharmacy Board of Australia's (PBA's) Code of Conduct in their dispensing of medicines and the Pharmaceutical Society of Australia's Dispensing Practice Guidelines (the Guidelines) including reference to providing good patient care by the pharmacist assessing the patient, taking into account their history, views and an appropriate physical examination where relevant and the formulation and implementation of a relevant plan for the patient. The submissions also point out matters such as the requirement for a pharmacist to exercise independent judgment having regard to prescribed dosage, and the presence and absence of other medications.
8. Reference is made in the submissions to the Guideline's cautionary warnings about dispensing multiple repeats which should only be done at the prescriber's directions. The submissions emphasise the Guide's recommendations limiting a delivery service to circumstances of clear need, and that the practitioner must still ensure compliance with their ordinary professional obligations including ensuring patients have sufficient indications about dosage and possible adverse reactions to enable the patient to make informed decisions.
9. It is submitted by the HCCC that the practitioner failed in both his adherence to legislative and regulatory obligations, and that he did not act in accordance with the PBA Code of Conduct or the Guidelines.
10. The submissions advance the proposition that the practitioner's conduct cannot be classified a "mere error or aberration in judgment" noting the conduct went on for a period of over three years.
11. The submissions assert that while the practitioner has expressed contrition that "there is limited evidence of insight into the causes or motivations for that conduct". Reference is made to the misleading evidence given to the PRU and Council. The submissions also note the limited continuing professional development engaged in by the practitioner.
12. Counsel for the HCCC in his oral submissions emphasised matters raised in the written submissions and highlighted the evidence of the practitioner, only given in answers in cross-examination, which were plainly contrary to evidence given the PRU and the Council.
13. In considering the question of the basis for making a prohibition order, counsel for the HCCC submitted the practitioner posed a substantial risk because his conduct was dishonest, that there were shortcomings in his knowledge and that he has failed to engage in training or professional development to overcome those shortcomings.
14. Finally, counsel noted that the practitioner does not oppose the orders sought inferring that he sees such orders as appropriate in the light of his conduct.

Consideration

1. We commence by noting that we agree with and adopt as correct and appropriate in the circumstances of this case the submissions of counsel for the HCCC in respect of the cancellation of the practitioner's registration and the period before which he can apply for a review of that decision.
2. We find that the practitioner engaged in conduct in the arrangement with Ms Trinh that potentially put patients at risk, and that his conduct was significantly below the standard reasonably to be expected of a practitioner of an equivalent level of training or experience. On no occasion did the practitioner speak to a patient or provide appropriate information to a patient. He failed to check with prescribers and recklessly supplied Ms Trinh excessive quantities of medicines. It was only in his oral evidence that the practitioner conceded medications could have been diverted to other patients.
3. We find that the practitioner's conduct was also improper and unethical. His practices did not accord with the law and he did not follow the PBA Code of Conduct or Guidelines. His supply of medicines without prescription was inexcusable as was his turning "a blind eye" to this and dispensing of multiple repeats.
4. As a proprietor pharmacist he was responsible for providing his wholesale account details to Ms Trinh and allowing her to directly place orders medicines on that account.
5. We are satisfied that the practitioner's participation in the arrangement with Ms Trinh was to advance his own financial position and he did so in total disregard of patient welfare. His conduct deserves strong condemnation.
6. At the hearing the practitioner made appropriate concessions about his conduct and said that he now wished to be open and transparent. His position at the hearing discloses proper acknowledgement of his former inappropriate conduct. We are conscious that when interviewed by the PRU and before the Council he provided untruthful or misleading answers to relevant questions including about recording of multiple repeat dispensing and dispensing without a prescription.
7. The regulators, in this case the PRU and the Pharmacy Council of New South Wales, (the Council) form a necessary and important function in ensuing the health and safety of the public is at all times maintained. Health professionals have a professional duty and ethical obligations to co-operate with regulatory authorities with utmost candour to achieve the objects of the National Law. The practitioner did not act with candour in his interviews with the PRU and the Council at the s 150 hearing.
8. We are conscious that the Amended Complaint does not particularise misleading conduct in answers given to the PRU and or the Council, however we find this aspect of the practitioner's conduct does have relevance to consideration of the length of time to be imposed under s 149C (7) of the National Law and appropriateness or otherwise of a prohibition order.
9. We are satisfied that the matters set out in Complaints One and Two, including the admissions made by the practitioner in his oral evidence, are established to the Briginshaw standard.
10. Further, we find the seriousness of the practitioner's unsatisfactory professional conduct, considering both the conduct in Complaints One and Two, justify the cancellation of the practitioner's registration.
11. In considering an appropriate period before the practitioner may again apply for registration, we have regard to the remarks of Payne JA in Chen v Health Care Complaints Commission at [88]. There his Honour explained: 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
12. We accept that a period of two years before the practitioner may apply for a re-instatement order is appropriate.

The prohibition order

1. The HCCC seek the following order in the Application for disciplinary findings and orders: A prohibition order prohibiting the Respondent from providing a health service, as defined in s 4 of the Health Care Complaints Act 1993, for the same period as any non-review period imposed.
2. Section 4 of the Health Care Complaints Act 1993 (NSW) provides 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. health service provider means a person who provides a health service (being a health practitioner or a health organisation).
3. Section 5 the definition section of the National Law contains the following notation under the definition of Prohibition Order: prohibition order Note - This definition is not applicable to New South Wales.
4. Division 1 of Part 8 of the National Law contains a definition of a prohibition order as follows: prohibition order has the meaning given by section 149C (5).
5. "Health service" has the meaning given by the Health Care Complaints Act
6. Section 149C (5) 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.
7. As is clear from the National Law there are two pre-requisites to be established if a prohibition order is to be made. First, the Tribunal must have determined that the practitioner the subject of disciplinary proceedings should have her/his registration suspended or cancelled. Secondly, the Tribunal must be satisfied that the person poses a substantial risk to the health and safety of members of the public.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. In the circumstances of this case, counsel for the HCCC advanced the argument for a prohibition order on the basis that the practitioner lacked insight into the shortcomings in his knowledge and conduct and had not undertaken any significant training to overcome those shortcomings. Reference was also made to the seriousness of the practitioner's conduct and his work for NPS.

Consideration - prohibition order

1. We commence by noting that the practitioner does not oppose the making of the prohibition order. This is a relevant but not determinative factor.
2. We find that the deterrent effect of any protective orders is well covered by the cancellation of the practitioner's registration, and the two-year time period before he can seek any review of that order.
3. The practitioner gave evidence in his affidavit which was not challenged that he had sold his pharmacy at a loss, was focused on his family and had completed Stage 1 of a three-stage ethics course but had not had time to complete the course. He is currently the proprietor of a gym and undertaking writing on health-related topics for a not-for-profit organisation. He is not involved in any occupation which is or is likely to adversely impact the health and safety of the public or pose a substantial risk to the public and has not provided any service in the nature of a health service in the period since he was suspended in 2019, a period of over three years.
4. We accept that up until the filing of his Reply in February 2022, and in respect of some aspects of his conduct admitted at the hearing, the practitioner did not squarely address his actions. However, we find he now has some insight into the inappropriateness of his behaviour and that he acknowledges his wrongdoing and has taken responsibility for his actions.
5. This matter is readily distinguishable from the substantial risk to the public found in Kazeme, Shrimpton and Tane which justified a prohibition order.
6. We find the HCCC has not adduced any evidence, including any expert evidence, which evinces a substantial risk to the public justifying the making of a prohibition order. We decline to make the order sought.

Costs

1. The practitioner did not oppose Order 4 of the orders sought in the Application for disciplinary findings and orders. The proposed order is that the practitioner pay the HCCC's costs. We are independently satisfied an order should be made to that effect under cl 13 of Schedule 5D of the National Law.

ORDERS 1. Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) ("the National Law") the registration of Jason Phat Thanh 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 two years 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 Jason Phat Thanh Vuong of 98 Kingsgrove Road, Belmore NSW 2192 ("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 26 November 2009. During the period of the events that are the subject of the complaints ("relevant period"), the practitioner was the pharmacist proprietor of Maks Chemist on Kingsgrove Road, Belmore, New South Wales ("the Pharmacy"). The practitioner typically worked at the Pharmacy on Monday and Wednesday to Saturday each week. The practitioner's brother, Mr David Vuong, typically worked at the Pharmacy on Tuesday each week. BACKGROUND TO COMPLAINT ONE This complaint relates to the quantities of drugs that the practitioner dispensed to Patients A to K and the intervals and periods of time over which he did so. The Annexure to this Complaint identifies the dispensing incidents relied upon by the Commission for each of Patients A to K. 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" issued 2017. PARTICULARS OF COMPLAINT ONE Particulars 2 to 18 are relied upon as constituting unsatisfactory professional conduct individually or in any combination with the other particulars. Particular 1 is relied upon as constituting unsatisfactory professional conduct only in combination with other particulars. Patient A

1. Between 17 February 2017 and 10 June 2017: (a) the practitioner dispensed for Patient A six units of Symbicourt (budesonide and formoterol) 400mcg turbuhaler on four occasions as set out in the Annexure; and (b) dispensing that quantity of the drug over that period of time, including in the intervals set out in the Annexure, and dispensing multiple units on one occasion, was not appropriate: (i) having regard to the usual dosage of the Symbicourt (budesonide and formoterol) 400mcg turbuhaler (one inhalation twice daily), and the dosage prescribed for Patient A ("MDU" or use as directed); and (ii) otherwise in the circumstances. Patient B
2. Between 16 June 2017 and 20 October 2017: (a) the practitioner dispensed for Patient B 11 packets (1320 tablets) of Metex (metformin) XR 500mg on six occasions as set out in the Annexure; and (b) dispensing that quantity of the drug over that period of time, including in the intervals set out in the Annexure, and dispensing multiple packets on one occasion, was not appropriate: (i) having regard to the dosage prescribed (one tablet at night); (ii) having regard to the dispensing to Patient B of other medications containing metformin in March 2017; and (iii) otherwise in the circumstances. Patient C
3. Between 27 December 2017 and 16 April 2018: (a) the practitioner dispensed for Patient C 3 packets (390 tablets) 12 packets (360 tablets) of Nexazole (esomeprazole) on three occasions as set out in the Annexure; and (b) dispensing that quantity of the drug over that period of time, including in the intervals set out in the Annexure, and dispensing multiple packets on each occasion, was not appropriate: (i) having regard to the dosage prescribed (one daily); (i) having regard to the dispensing to Patient B of other medications containing esomeprazole in July and August 2017; and (ii) otherwise in the circumstances. Patient D
4. Between 7 September 2018 and 17 December 2018: (a) the practitioner dispensed for Patient D six packets (336 tablets) of each of: (i) Lypralin (pregabalin) 75mg; (ii) Lypralin (pregabalin) 150mg; (ij) Lypralin (pregabalin) 300mg, on three occasions as set out in the Annexure; and (b) dispensing that quantity of the drug over that period of time, including in the intervals set out in the Annexure, and dispensing multiple packets on each occasion, was not appropriate: (i) having regard to the maximum recommended dosage (300mg twice daily); (ii) having regard to the potential for misuse of pregabalin, which the practitioner knew or should have known; and (iii) otherwise in the circumstances.
5. On 20 July 2018: (a) the practitioner dispensed for Patient D six packets (360 tablets) of Tramadol SR (tramadol hydrochloride) 50mg as set out in the Annexure; (b) dispensing that quantity of the drug at one time was not appropriate: (i) having regard to the potential for misuse of tramadol, which the practitioner knew or should have known; and (ii) otherwise in the circumstances. Patient E
6. Between 10 May 2018 and 12 October 2018: (a) the practitioner dispensed for Patient E 12 units of Invega Sustenna (paliperidone) Prefilled Syringe 150mg on three occasions as set out in the Annexure: and (b) dispensing that quantity of the drug over that period of time, including in the intervals set out in the Annexure, and dispensing multiple units on each occasion, was not appropriate: (i) having regard to the maximum recommended dosage (150mg per month); (ii) having regard to the dispensing to Patient E of other medications containing paliperidone as set out in particular 7; and (ii) otherwise in the circumstances.

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