Health Care Complaints Commission v Kaye

The Commission

1. No evidence was filed by the Commission at the Stage Two hearing.
2. The Commission submitted that the appropriate protective orders were: 1. cancellation of the practitioner's registration pursuant to s 149C(1)(b) of the National Law); and 2. an order that an application for review under Division 8 of the National Law may not be made for a period of one to two years (s 149C(7) National Law).
3. Alternatively, the Commission submitted that if the Tribunal was not satisfied that the above protective orders it sought were appropriate, then a reprimand and the imposition of conditions on the practitioner's registration were appropriate.

The practitioner

1. The practitioner submits that the appropriate protective orders in this case were that he be reprimanded and conditions imposed on his registration.
2. His proposed conditions are set out in Attachment A.
3. He relies on the following evidence: 1. his three affidavits respectively sworn 27 August 2021, 1 November 2021 and 29 April 2022; 2. the report of Dr Robert Fisher dated 11 October 2021. Dr Fisher is a forensic psychiatrist; 3. a report of Albert Regoli dated 7 October 2021 together with a further letter of Mr Regoli dated 14 April 2022. Mr Regoli is a pharmacist; 4. "character evidence" contained in affidavits of: 1. Deanne Lao Bagang sworn on 26 April 2022; 2. Gayatri Mulaka sworn on 26 April 2022; 3. Nha Huynh Nguyen sworn on 22 April 2022; 4. Pauline Yang Wong sworn on 27 April 2022; 5. Tiffanie Daisy Sugianto sworn on 22 April 2022.
4. Each of the practitioner, Ms Mulaka, Dr Fisher and Mr Regoli were required for cross-examination by the Commission. Where relevant their evidence given in cross-examination will be referred to below.
5. We shall briefly summarise the evidence relied on by the practitioner.

Affidavit of the practitioner sworn 27 August 2021

1. This is a lengthy affidavit of some 38 pages not including annexures. The affidavit is divided into sections and sub-sections and the practitioner's evidence deals with the following topics: 1. Section A, "Background", consisting of five sub-sections: 1. Personal circumstances in the lead up to 2018-2020 2. Commercial circumstances 2018-2020; 3. Wholesaler challenge; 4. General financial position and protection - "my role as CEO and financial management"; 5. Day to day pharmacy management, staffing and training; 1. Section B, "PNW Toongabbie - 23 December 2017 and 24 December 2017"; 2. Section C, "PNW Quakers Hill - 4 August 2018, 27 October 2018, 9 February 2019 and 18 November 2019"; 3. Section D, (the events of) "18 January 2020"; 4. Section E, "Reflection On Operating A Pharmacy Without A Pharmacist Present"; 5. Section F, "Written Submissions regarding 18 January 2020"; 6. Section G, "Criminal Proceedings"; consisting of two sub-sections being: 1. larceny; and 2. Pharmacy Council of NSW criminal proceedings; 1. Section H, "Reflections". 2. Section I, "Actions taken since suspension"; consisting of five sub-sections being: 1. personal circumstances; 2. staffing levels and delegation; 3. disposal of pharmacy interests; 4. change of management system; 5. continuing professional development.
2. Parts of this affidavit were relevant to the Stage 1 proceedings. However, some parts were clearly relevant to the Stage 2 proceedings, for instance, Section H "Reflections", although to some extent superceded by the practitioner's affidavit of 29 April 2022.

Affidavit of the practitioner sworn 1 November 2021

1. The purpose of this affidavit was to provide an update on the practitioner's circumstances since the previous affidavit. He sets out his participation in and completion of the Pharmaceutical Society of Australia (PSA)'s course "Analyse, Execute and Review Ethical Pharmacy Practice".
2. He then discusses his Continuing Professional Development (CPD) for the 2021 and 2022 CPD years. He next discusses his drafting of a proprietor audit checklist drafted after consultation with his lawyers and Mr Regoli. He provides an update of his plan to divest himself his interest in some of his pharmacies.
3. On or about 1 October 2021, he exchanged contracts for the sale of PNW Balgowlah. In this respect he states that: 35 The Balgowlah pharmacy, now sold, accounted for approximately 15% of my work load engagements prior to my suspension on 5 February 2020. 36 The Rosebery pharmacy accounted for approximately 15% of my work load engagements prior to my suspension on 5 February 2020. 37 If I am permitted to resume practice, I estimate that the divestment of Balgowlah and the proposed divestment of Rosebery (if it proceeds) will reduce my workload, and associated work pressures by 20 to 30% (allowing for increases in other areas, such as undertaking pharmacy audits as set out above). 38 In addition, if the franchise model, referred to above, proceeds (as I expect it will), I expect this will reduce my administrative workload by a further 10%.
4. He also describes his actions to reduce work pressures, workload and his working hours.

Affidavit of the practitioner sworn 29 April 2022

1. This affidavit is divided into five sections.
2. The first section "Reflection on Stage One", sets out the practitioner's reflections following the Stage 1 findings. He says he is filled with deep regret and remorse for his actions. He accepts the Tribunal's Stage 1 findings and acknowledges, in respect of opening PNW Toongabbie and PNW Quakers Hill without a pharmacist present, that he compromised the health and safety of the public and left them vulnerable to abuse.
3. The practitioner says he was ashamed of providing misleading information to the regulatory authorities including the Pharmacy Council (Council). He says by going through the Stage 1 proceedings he now understands how wrong he was and that there was no excuse for that conduct and that he accepts that he has no excuse. While he acknowledges that he was the person who engaged in the misconduct, at the time he lacked personal support professionals to assist him in handling stress, that he micromanaged the business without delegating, and that he exercised extremely poor judgement and compromised his obligations as a pharmacist.
4. The second section deals with CPD and sets out the courses the practitioner has recently undertaken.
5. The third section deals with the "Operation of the Pharmacies". In summary, the practitioner sets out a revised management structure for the pharmacies which included some pharmacists now undertaking manager training. The practitioner says that as a result of this new management structure there are now clear lines of accountability and delegation and allows any strategic (commercial or clinical) decisions to be implemented for the good of the team in the organisation.
6. Following the Stage 1 hearing, the practitioner met with his Pharmacist Management Team and asked them to action a new pharmacist attendance logbook. He says the new hierarchy is working effectively.
7. On 22 December 2021, the practitioner signed a franchise agreement with a franchisor "GPP" for PNW Quakers Hill, PNW Toongabbie and PNW Rosebery.
8. The third section is titled "Proprietor Audit Checklist". The practitioner says that since his 1 November 2021 affidavit he has put a considerable amount of time and effort into developing this checklist. He says the effect of this and other checklists is that there are now clear lines of accountability on a daily, weekly, fortnightly and monthly basis.
9. Also, since November 2021, the practitioner has engaged Mr Regoli to use the Proprietor Audit Checklist at each of the pharmacies. He says Mr Regoli attended each of the pharmacies in March and April 2022, along with the respective pharmacist manager or a member of the Pharmacist Manager Team. During these visits the practitioner was on a mobile phone listening to how Mr Regoli checked each pharmacy's compliance, "ran" reports on the computer and noted how Mr Regoli spoke to staff and provided feedback to them.
10. In the final section, "Other relevant information", the practitioner says that on 21 February 2022 he settled the sale of PNW Balgowlah. He also said that during April 2022, as part of the preparation for PNW Quakers Hill and PNW Rosebery being rebranded as part of the GPP franchise, all of the pharmacies commenced operating with GPP purchasing software and staff undertook training in GPP's software. The practitioner says he has received feedback from the Pharmacist Manager Team that the GPP software is much more efficient than that previously used, as well as being more modern and easier to use.
11. The practitioner says that on 29 April 2022 Ms Mulaka signed a partnership agreement for PNW Quakers Hill.
12. Finally, the practitioner says he continues to see his life coach Thanasis Skrivas and psychologist Bradley Jones.
13. As noted, the pharmacist was required for cross examination. The Commission's counsel asked him questions about his completed and proposed CPD; the new checklist for the pharmacies, and the extent to which he had been involved in his pharmacy since his suspension. The practitioner confirmed that he accepted the Tribunal's findings set out in the Stage 1 Decision, including that he operated pharmacies in the absence of a pharmacist, gave misleading information to the Local Court and that there was no excuse for providing misleading information to the Council and the Commission.
14. It was put to the practitioner that he had no explanation for why he had provided misleading information to various authorities. He disagreed. He said that he had previously and during the course of the proceedings explained the reasons for his actions. Counsel put to him whether he had in his mind a distinction between operating a pharmacy for a full day as opposed to operating for part of a day without a pharmacist present. His explanation was that the evidence he had given previously was at a time (August 2021) he was unfortunately in a space where his mind had a narrative of what he believed were the facts of the situation. It was only when he was under cross-examination in the Stage 1 hearing that he had a "light bulb moment" that information there was not correct and he then replied as truthfully as he could to what he understood was the truth. He accepted that what he had said previously was not correct.
15. The following exchange followed: Mr Bhasin: When did this light bulb moment occur? The practitioner: It occurred to me when I was sitting and being cross-examined in the period you were asking me questions in the Stage 1. It was clear to me that the only truth was that the information as has been explained to me and as I have read in the documentation, that the Tribunal came as their summary verdict; that my actions were misleading, and I - that crystallised when I faced up to the facts of that. Mr Bhasin: So it didn't occur to you before November of last year that the information you provided to the Council and the Commission in February and March 2020 was false and misleading. The practitioner: It's not that it didn't occur, I would suggest that I had a narrative in my mind, and from the fear of the timing, somewhat because of the chaos, I took a position, and I'm very aware of it now, that it was wrong and I did clarify that very much so in my mind in November 2021 and once reading the actual outcome of Stage 1. But back in February and March of 2020, unfortunately, I had an understanding in my mind and I believed that I incorrectly, I misled the Tribunal and I'm very aware that I did that now. Mr Bhasin: Are you able to provide explanation of why you had that mistakes understanding in your mind? The practitioner: That's a very very good question. Basically what happened, I have discussed this a fair bit with my psychologist Brad Jones, and um, there are different ways of explaining it. Its clear to me, I've got the clarity of today of now and being able to look back with my clear mind that it doesn't make but if you take me back February/March arch I created an understanding - as I said partly out of fear - partly out of creating my own narrative. I discussed it with Brad but he said that it was like cognitive dissonance where you hand pick what you think is the facts .It's very clear to me now, and it was very wrong and it will never happen again. You asked me about February/March, I wasn't in a very good space, (cries) and it was quite chaotic, and I wasn't really my best self to be fair. Sorry. … Mr Bhasin: You just referred to "fear" - was that fear of the regulatory consequences of your actions? The practitioner: No, not at all, in all contexts, I totally understand that to mislead the regulatory authorities is, the whole process is there to protect the public and if the person that's involved isn't true with the process then it can't have a correct outcome … Mr Bhasin: As I understood your answer a moment ago you said that one of the understandings you developed in February and March and narrative you created was were in part driven by "fear" responses was that the narrative was a result of "fear" … what were you scared of? The practitioner: I can't be clear on that. It's hard to talk about what creates your fear. I can say that there was a lot of chaos … unfortunately in that period of time some fundamentals in my life were a bit disturbed, and that created some chaos …having failed I had fear in my mind.
16. Commission counsel then put to the practitioner that while his work with Mr Regoli addressed structural changes in the pharmacy practices, none of that work addressed to reducing the risk of his providing false and misleading information to the regulatory authorities in the future. The practitioner disagreed.
17. Commission counsel put to the practitioner that he had expressed similar feelings of regret and remorse in his communications to the Council in 2020. Counsel put to the practitioner that the Tribunal could not have any confidence that his current expressions of regret and remorse were genuine. The practitioner "totally disagreed" with the suggestion and said that he was very ashamed about his actions, had reflected on his Stage 1 cross examination and the Stage 1 Decision and had made effort to put in place systems to ensure his conduct would not happen again. Counsel pressed the practitioner the Tribunal could not be confident in the future he would not give misleading and false information to a regulator. The practitioner's response was that was "quite incorrect", that he had engaged Mr Regoli, retained 27 locum pharmacists and undertaken a number of other actions.

Report of Dr Robert Fisher

1. In summary, Dr Fisher believes that the practitioner has the following problems: 1. Firstly, there is no evidence of him currently suffering from a psychiatric or physical condition causing him to impaired in his capacity to practise Pharmacy safely. Nonetheless, I believe that at the time of the offences that he admits to having committed, he was in an extremely stressed stated and probably, at that time, suffering from an Adjustment Disorder with Anxious and Depressed Mood. I have identified the stressors that were operating at the time and which believe did precipitate a psychiatric condition as indicated above. 2. The issues which serve as the basis of the complaints are no longer operative. 3. He expresses remorse for the errors of judgement and acknowledges the need to comply with expected standards of practice. 4. He has worked very hard at self-examination through psychotherapy and has established structures and protocols to ensure the high standards that are expected by the Pharmacy Board of New South Wales, are met. 5. As to the alleged larceny, it would appear that this was a matter that did not lead to him being charged or convicted and one could understand, that on that basis, he did not believe that he needed to notify the Pharmacy Board of NSW.
2. Dr Fisher then states his answers to the following questions as follows: 1. You ask, what if any psychiatric or psychological difficulties was Mr Kaye suffering from at the time of the events the subject of the proceedings set out in the HCCC's complaint in the proceedings? I believe it most probable that he was suffering from an Adjustment Disorder with Anxious and Depressed Mood and he has provided details of the specific stressors which precipitated that condition. 2. You ask my opinion of Mr Kaye's current psychiatric or psychological state and (if relevant) prognosis. I believe that Mr Kaye is currently free of any psychiatric or psychological issues which would impair his capacity to practise safely as a pharmacist. Furthermore, he tells me that has engaged in fairly intensive individual psychotherapy and has a Life Coach. He has put into place a range of protocols and structures to minimise any risk of him offending in failing to comply with the expected standards of practice of a Pharmacist. 3. You ask, in my opinion, is Mr Kaye presently fit to conduct his profession of pharmacy having regard to the need to safeguard the public and the good reputation of the pharmacy profession? I am of the view that he is fit to conduct his profession of pharmacy having regard to the need to safeguard the public and the good reputation of the pharmacy profession.

Character evidence

1. All the character referees indicated that they had read the Stage 1 Decision, were shocked at its contents. Some refer to the practitioner's regret, shame and remorse. One witness, Ms Bagang, considers the practitioner's conduct to be "out of character" and a "one-lapse in judgment".
2. All make complimentary references to the practitioner's compassion and kindness and his other personal qualities such as mentorship.
3. As noted, Ms Mulaka was required for cross-examination. She has known the practitioner for just over two years, and observes that the practitioner is a very caring and aware person. She says that he is very thorough when he reviews prescriptions and dispenses. She says the practitioner is a very hard worker, was focused on the role of the pharmacy in the community and the provision of pharmacy services. She says this is demonstrated in the time she has worked at the PNW Quakers Hill pharmacy through the improvement of procedures, external audits and the practitioner's mentorship of pharmacy staff.
4. She has read the Stage 1 Decision. She said she never would have expected the practitioner to behave the way that he had. She says what he did was definitely wrong and that he is very aware of this. She says she can state confidently that the practitioner accepts the findings in the Stage 1 Decision about his conduct and feels "terrible remorse" for the mistakes he made.
5. Ms Mulaka says that the new checklist that the practitioner is working on with Mr Regoli is "very comprehensive and detailed" and covers every minor detail from checking prescriptions to monitoring dispensing. She says the pharmacy now uses log books to require pharmacists to register the day and time they start and finish work and that has been very useful for keeping track of pharmacists. She says the practitioner has also ensured that there are more pharmacists than sometimes needed and there is even a group of locum pharmacist on hand if any of the staff are sick.
6. Ms Mulaka says that she has witnessed the changes the practitioner has implemented, and the many efforts he has made to correct himself and the pharmacy procedures with a positive attitude. She says the practitioner is very focused and driven on implementing practical procedures so that he is aware of what is occurring in the pharmacies. She also says that the practitioner is also taking much more care of the business practises and staff as a whole as he has realised the importance of ensuring that if he is allowed to return to his practise in his pharmacies he has the necessary processes in place to ensure he will never again engage in the conduct that falls short of his professional obligations.
7. Ms Mulaka's cross-examination did not cause us to doubt the sincerity of Ms Mulaka's views.

Report of Albert Regoli dated 7 October 2021

1. Mr Regoli is a pharmacist. He was asked to assess the practitioner's non-compliance with the relevant legislation as set out in the Commission's complaint and to thereafter assess the practitioner's knowledge of his obligations as a pharmacist and as a proprietor pharmacist and to provide any recommendations.
2. In summary, Mr Regoli states that: 1. the practitioner has a very good understanding of the legislation and guidelines in NSW relevant to: 1. professional standards and the code of conduct for pharmacists; 2. operating a pharmacy on premises not the subject of approval by the Council; 3. mandatory notifications; 4. unsatisfactory professional conduct and professional misconduct; 1. the practitioner has good insight about his responsibilities; 2. the practitioner understands his obligations as proprietor; 3. the practitioner has a range of procedures in place to maintain an active interest in the pharmacy and to ensure that the pharmacies are operated in accordance with professional standards, legislation policies; 4. the practitioner's CPD plan for 2021- 2022 includes the completion of the PSA ethics course recommended in a previous report;
3. Mr Regoli cannot comment on the practitioner's likelihood to reoffend, but says that the practitioner does have the required knowledge and ability to conduct a safe practise, both as a pharmacist and as a proprietor pharmacist.

Letter dated 14 April 2022

1. Mr Regoli was asked to answer two questions by the practitioner's solicitors.
2. The first question was whether the audit checklist was an appropriate systemic procedure to identify potential problems in each of the practitioner's pharmacies.
3. Mr Regoli says that a checklist is a recognised self-audit tool providing a standard approach to assessing or delivering service and used extensively within the pharmacy profession. On 31 March 2022, he received a copy of the draft proprietor checklist the practitioner had developed to assess the operation of his pharmacies and its compliance with necessary regulations and standards. Mr Regoli was asked to utilise the draft checklist to evaluate all three pharmacies and to assess the usefulness of the audit checklist.
4. Mr Regoli agreed that the audit checklist formed a "good basis" for identifying potential problems if they arise, although he did suggest that further refinement would be needed to facilitate its use.
5. Mr Regoli says that he is willing to work alongside the practitioner, should his suspension be lifted, to assist in the implementation of the audit checklist.
6. The second question Mr Regoli was asked was whether or not the practitioner acknowledged and understood the reasons for the Stage 1 Decision. Mr Regoli stated that he and the practitioner discussed the Stage 1 Decision during a 75 minute Zoom call on 13 April 2022. He says that the practitioner recognised the criminality of his actions, the effects of his conduct on the standing of the profession and the risks to the public.
7. Mr Regoli says that the practitioner is cognizant of the seriousness of his wrongdoing and accepts and understands why he was suspended, that he is deeply remorseful, has found it hard to come to terms with all the things he had done wrong, and accepts that his actions were disgraceful and dishonourable. Mr Regoli says that the practitioner accepts that his actions involved a serious departure from professional standards which in so doing carried a significant risk to the public, and that it also placed junior staff members under considerable stress.

Relevant principles to be applied

1. It is appropriate to set out the relevant principles to be applied in determining a protective order.
2. As the Tribunal stated in Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 at [101] the relevant principles in determining a protective order have been stated on many occasions and include the following: (1) the protection of public safety and health is paramount; National Law, s 3A; (2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); (3) the Tribunal must consider the maintenance preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; (4) protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; (5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340; (6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (7) the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]; (8) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
3. To that list of principles may be added another principle relied on by the Commission in this matter. That is that, to the extent it is suggested that a practitioner has been reformed, "clear proof" is required, demonstrated by more than the passage of time without misconduct, with reformation being the exception rather than the norm: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72].
4. The Commission submits that the Tribunal must be satisfied that the practitioner has demonstrated integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant obligations, codes of practice, such that it is appropriate for the practitioner to be held out to the public as a person worthy of their confidence: Health Care Complaints Commission v Cleary [2021] NSWCATOD 213 at [209]; Crickett v Medical Council of New South Wales (No 2) [2015] NSWCATOD 115 at [56(f)].
5. To the list may also be added a number of additional principles relied on by the practitioner.
6. First, even though the Tribunal has found the practitioner guilty of "professional misconduct justifying cancellation or suspension of registration", this does not automatically lead to making an order under s 149C(1) to suspend or cancel a registered health practitioner's registration; such a characterisation (that is, professional misconduct), "is not necessarily determinative of any consequential appropriate protective orders": Health Care Complaints Commission v Young [2020] NSWCATOD 138 at [39]; Health Care Complaints Commission v Tane [2020] NSWCATOD 112 at [41]. In other words, cancellation or suspension does not automatically follow a finding of professional misconduct: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67].
7. Secondly, the Tribunal's concern in making a protective order is whether or not the conduct is such that cancellation or suspension is warranted having regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other members of the pharmacy profession: Tane at [42].
8. Thirdly, to justify cancellation of registration it is "demonstrated current unfitness, not a prophesy of permanent unfitness" that is required: Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [281] (and the cases there referred to). Fitness to practice is to be decided at the time the decision about whether to make the order recommending the person for removal is made: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 at 268 [21]; Health Ombudsman v MKL [2022] QCAT 131 at [24].
9. Fourthly, no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to).
10. Fifthly, the practitioner also relies on Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 at [23] where he submits that the Tribunal sets out the matters to which the Tribunal should have regard in determining an appropriate protective order, namely:

• the gravity of the misconduct;
• how long ago the misconduct occurred;
• what has occurred in relation to the practitioner since the misconduct;
• the practitioner's level of remorse and degree of insight, if any into his or her misconduct;
• what if any steps have been taken by the practitioner by way of rehabilitation;
• general encouragement of high standards; and
• specific considerations of what is required to ensure that the practitioner does not pose similar risks in the future.

Commission's submissions

1. The Commission's submissions may be summarised as follows.
2. First, the practitioner's misconduct was serious. The practitioner admitted, and the Tribunal found, that the practitioner's misconduct in respect of Complaints Two and Three was of a sufficiently serious nature to justify suspension or cancellation of his registration.
3. Here we note that we stated in the Stage 1 Decision at [131] that we accepted the Commission's submissions that: (1) the conduct forming the basis of Complaint Two involved a serious departure from professional standards. Instructing staff to carry on the business of a pharmacy in the absence of a registered pharmacist involved a breach of a professional standard of great importance; (2) doing so carried significant risk to the public and breached numerous professional standards, including as to the supply of schedule 3, 4 and 8 medicines. (3) in respect to Schedule 8 medicines, it involved such drugs being dispensed in the absence of a pharmacist with DD Books being filled in retrospectively, circumventing the important protections the registers were intended to afford against abuse. It also placed junior staff under considerable stress, caused them to mislead patients, and exposed them to abuse from dissatisfied patients. It also meant that junior staff had access to Schedule 8 medication when only the pharmacist should have access; (4) the provision of false and misleading information to the Council and Commission also involved a serious departure from expected standards of professional conduct given the critical importance to the regulatory system of practitioners being truthful and candid in their dealings with professional regulators.
4. The Commission further submits that the practitioner's failure to notify the National Board of his criminal charge and conviction for larceny was also serious, and that the seriousness of a failure to notify arises from depriving the regulator of its ability to undertake a risk assessment, irrespective of the actual or likely outcome of that assessment in a particular case. Here the Commission relies on the remarks of the Tribunal in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [100] namely: Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage.
5. Secondly, the most serious misconduct (being the conduct the subject of Complaint Two) cannot be characterised as an isolated error of judgment. The practitioner inappropriately instructed staff to operate a pharmacy in the absence of a registered pharmacist, with the significant risks to the public and impact on junior staff outlined above, on six separate occasions across two different locations. That misconduct was systematic, involving the implementation of a system for the approval of the dispensation of medicines (including Schedule 8 medicines) by text message and requiring the DD Books to be completed retrospectively on each occasion. The practitioner also provided false or misleading information to regulatory authorities on three separate occasions.
6. Thirdly, the practitioner has demonstrated a lack of candour and integrity through his misconduct and his response. His carrying on of a pharmacy business without a current approval (which was the basis of the conviction in Complaint One Particular 2(b) involved a blatant disregard of a clear direction given by the Council to stop operating.
7. Fourthly, the practitioner's provision of false or misleading information to regulatory authorities) demonstrated a lack of candour in dealing with regulatory complaints. That included making emphatic, precise and false statements in near identical terms that 18 January 2020 was the first and only time he had given instructions to his staff to dispense without a pharmacist present, in letters to the Council and the Commission, which he sought to downplay as "imprecise" language or a "slippage" in language, but eventually conceding in cross-examination that the statements were not imprecise, and that he knew they were false when he made them (at least in relation to the letter to the Commission of 3 March 2020).
8. Fifthly, the practitioner's response to the complaints and the proceeding indicates a lack of genuine contrition and insight.
9. Sixthly, against that background, the Tribunal should treat with caution any claim that the practitioner had since reformed, such that it was satisfied he now had the integrity, trustworthiness, high moral and ethical values required of a health professional.
10. Seventhly, the protection of the public through general deterrence requires the practitioner's serious misconduct be denounced by making the protective orders sought by the Commission.

The practitioner's submissions

1. The substance of the practitioner's submissions commence by addressing what we will describe as the "Abrams factors". We summarise those submissions as follows.

The gravity of the misconduct

1. The practitioner concedes the conduct the Tribunal found he had engaged in with respect to Complaint One (especially with respect to the Sch 5F offences), Complaint Two and Complaint Three, on their own and taken together, are objectively serious misconduct.
2. Accordingly, he concedes that he cannot and does not resile from the characterisation of his conduct, viewed as a whole, as of a sufficiently serious nature to be described as professional misconduct, which he admitted and the Tribunal found, in respect of Complaint Four.

How long ago the misconduct occurred

1. Complaints One to Three span the period between December 2017 to September 2020.
2. The practitioner says that in the period he has been suspended from practising (that is from 12 February 2020), he has used the time productively to address his personal and professional shortcomings to ensure such conduct never occurs again.

What has occurred in relation to the practitioner since the misconduct?

1. The practitioner submits that since his suspension he has embarked upon restructuring his business, divesting some of the pharmacies in which he has an interest (with a view to reducing work pressures) and undertaken a course of intensive professional and personal self-improvement (the latter commencing before his suspension).
2. Extensive evidence and submissions about these matters is provided. We note in particular that: 1. Dr Fisher gave evidence that at the time of the misconduct the practitioner was likely in an extremely stressed state in light of various stressors including an acrimonious family dispute involving his parents and siblings, his wife experiencing complications arising from the birth of their daughter which affected her ability to lift the child until at least mid-2020) and suffering from an adjustment disorder with anxious and depressed mood. He submits that the Tribunal should accept Dr Fisher's opinion of his psychological state at the time of the conduct as an explanation - not an excuse - for the circumstances of his conduct; 2. according to Dr Fisher, the practitioner is currently free of any psychological issues that would impair his capacity to practise as a pharmacist, and is fit to conduct his profession of pharmacy having regard to the need to safeguard the public and the good reputation of the pharmacy profession; 3. the practitioner submits that he has embarked on an extensive course of personal self-reflection and examination with assistance from a psychologist, Dr Jones, and life coach, Mr Skrivas, to better understand and manage his personal and psychological circumstances and both of whom he continues to see.

The practitioner's level of remorse and degree of insight, if any into his or her misconduct

1. For the extensive reasons given in his submissions, the practitioner says that he is filled with deep regret and remorse for his actions, accepts the Tribunal's findings that he gave false and misleading information to the Council and the Commission, that there is no excuse for his conduct and that he is ashamed by it.

What if any steps have been taken by the practitioner by way of rehabilitation?

1. Again, for the extensive reasons given in his submissions, the practitioner submits that he has undertaken considerable steps towards rehabilitation to ensure that the events the subject of these proceedings will never occur again, and the underlying issues relating to how he manages his business and personal circumstances are addressed.

General encouragement of high standards

1. The practitioner submits that these proceedings have caused him to reflect deeply upon the need for high professional standards and how best those high standards can be implemented in his business and practice should he be allowed to practise again.

Specific considerations of what is required to ensure that the practitioner does not pose similar risks in the future/risk of reoffending

1. The practitioner submits that there is no risk of him reoffending for the following reasons.
2. First, because he is deeply chastened by both the criminal proceedings relating to his pharmacy practice and the current proceedings.
3. Secondly, he has meaningful and significant insight into his wrongdoing that has caused him to materially alter his business structure and downsize his business and introduce extensive pharmacy policies and procedures having understood where he went wrong with respect to the conduct that led to the criminal proceedings and now these proceedings.
4. Thirdly, he has channelled his commitment not to engage in similar conduct by undertaking significant work to better understand his professional obligations both in his own time, through formal CPD, and consulting with his mentor Mr Regoli since March 2020.
5. Fourthly, he has sought to implement his learning and hold himself accountable to the high standards of professional conduct by implementing additional practical strategies of accountability through the new policies and procedures he has implemented in his pharmacies such as the logbook, daily checklist and proprietor audit checklist.
6. Fifthly, he has sought to fully understand the underlying psychological stressors that underpinned the poor judgment that led to the wrongdoing to avoid any such conduct in the future and accordingly has actively and consistently engaged with a psychologist and life coach to address those matters. He says that while he may face challenging personal circumstances in the future, the insights he has gained into how best to manage his psychological well-being as well as continued support from his psychologist and life coach, will ensure that the likelihood of him failing to adhere to his professional obligations in the context of personal and/or professional stressors is significantly reduced.
7. The practitioner's submissions then turn to the subject of his character, and he submits, relying on the various character references, that he is of good character and well regarded professionally by his referees. Here he submits that it is significant that the five character witnesses gave sworn evidence as to his professional reputation and integrity after reading the Stage 1 Decision.
8. Given these matters, the practitioner submits that this Tribunal can discharge its protective function, which he submits the central function of which is doing that which is necessary to protect public health and safety having regard to s 3A of the National Law, by issuing a reprimand and imposing conditions for a performance audit and other conditions for two years.
9. In relation to a reprimand, he submits that: 1. a finding of professional misconduct is not determinative of any consequential appropriate protective orders; 2. a reprimand is available in this case, as he remains registered (albeit suspended); 3. there are several cases in the Tribunal where a pharmacist's conduct was found to amount to professional misconduct and where a reprimand was ordered: Saab (No 2); Health Care Complaints Commission v Murray (No 3) [2019] NSWCATOD 125; Health Care Complaints Commission v Elliott [2018] NSWCATOD 47; Health Care Complaints Commission v Kennedy [2017] NSWCATOD 72. While each case turns on its own facts, these cases illustrate the proposition that: 1. it is far from unprecedented to order that a practitioner be reprimanded (whether together with other conditions or not) even where the conduct was sufficiently serious to warrant a finding of professional misconduct; 2. a reprimand is commonly deployed where the conduct is serious but isolated in the context of a person's professional life and/or the person is otherwise unlikely to be a risk to the public or the profession having regard to the insight they demonstrate about their wrongdoing and/or steps taken to remediate deficiencies in professional practice.
10. The practitioner submits that there are three reasons why a reprimand is justified in the present case.
11. First, having regard to the evidence as to his insight, contrition and remediation outlined above, the health and safety of the public will appropriately be protected without cancelling his registration, subject to appropriate conditions being imposed.
12. Secondly, cancellation of registration would be disproportionate to achieving that overriding objective and visit upon the practitioner more serious consequences than is reasonably necessary to achieve the purpose of protecting the public: Tran at [123]. The jurisdiction of this Tribunal is protective not punitive.
13. Thirdly, a reprimand is a serious matter and "not a slap on the wrist" (Legal Services Commissioner v Sapountzis [2010] VCAT 1124 at [21]) and "has the effect of identifying standards the establishment and maintenance of which protect the public": Prothonotary of the Supreme Court of New South Wales v Chapman (unreported, CA(NSW), 14 December 1992) at 22.
14. Fourthly, and in particular, the practitioner relies on Saab (No 2) at [93], where the Tribunal stated: The ordering of a reprimand that follows a finding of professional misconduct in a decision published by the Tribunal imparts a clear deterrent message to other professionals that conduct of the kind found against [the practitioner] will not be tolerated. The reprimand together with our published finding of professional misconduct confirms the seriousness and unacceptability of that conduct. Maintenance of the highest standards of the pharmacy profession and the public confidence in the profession are not diminished in the circumstances in which we make the orders proposed in these proceedings.

Consideration

1. We accept that the practitioner: 1. has divested himself of some of his business interests by altering the management structure of his group of pharmacies from an independent group of pharmacies to operating under a franchise system with the franchisor, GPP; 2. continued his CPD; 3. introduced new management practices in his pharmacies including refining and introducing a monthly proprietor audit checklist; 4. has had to deal with various painful personal family circumstances which it is not necessary to recite here.
2. We accept that he has embarked on a course of self-reflection and examination. However, without evidence from his psychologist Dr Jones or life coach, Mr Skrivas, we would not describe that self-reflection as "extensive" as claimed, and we are unable to draw any conclusions about the progress (let alone the effectiveness) of the practitioner's sessions with either of them. For instance, we do not know how regularly the practitioner attends sessions, what their duration is and when the most recent session was attended. Nor do we know for how long those sessions are to continue.
3. We also accept that the practitioner is remorseful, possibly deeply so, but we share with the Commission some doubts about his claimed "light bulb moment" during the course of his cross-examination during the Stage 1 proceedings. We also find unpersuasive his explanation that he was in a "space" where in his mind he had a "narrative" of what he believed were the facts of the situation, only to realise his narrative was wrong during cross-examination. Nor were we satisfied about his response to Commission counsel's questioning about whether or not the Tribunal could be satisfied in the future that he would not mislead regulatory authorities.
4. We consider that the totality of the conduct of the complaint was objectively serious misconduct. This is for the following reasons.
5. First, under Complaint One: 1. in January 2020 the practitioner was found guilty of larceny (but no conviction was recorded), and 2. in October 2020, the practitioner was convicted at the Downing Centre Local Court of the following offences under the National Law relating to the operation of the Pharmacies namely: 1. carrying on a pharmacy business trading as PNW Toongabbie, being premises that were not the subject of current approval by the Pharmacy Council; and 2. that the pharmacy business trading as PNW Quakers Hill was not conducted in the charge of a pharmacist who personally supervised the carrying on of the business.
6. The conduct the subject of the larceny charge may be explicable (but not excusable) by reason of the fact the practitioner considered that he was acting in the best interests of his parents. But the offences under the National Law relating to the operation of the Pharmacies, which are rightly conceded by the practitioner to have a direct nexus with his professional role, are clearly serious matters.
7. Secondly, so too is the conduct of Complaint Two, namely operating a pharmacy business without a supervising pharmacist, for periods of time on dates in 2017, 2018 and 2019, a matter which is also conceded by the practitioner. It was a serious ethical breach and impacted on public safety.
8. Thirdly, Complaint Three was that the practitioner: 1. failed to notify the National Board in writing within 7 days of being charged with an offence punishable by 12 months' imprisonment or more, namely larceny under s 117 of the Crimes Act; 2. failed to notify the National Board in writing within 7 days of being subject to a finding of guilt for an offence punishable by 12 months' imprisonment or more, namely larceny under s 117 of the Crimes Act.
9. We accept that this complaint on its own would have been at the lower end of objective seriousness. We also accept that, at least on one occasion, the Commission has recognised that such failures are "common among health professionals", Health Care Complaints Commission v Slater [2020] NSWCATOD 84 at [19]. However, we do not consider that it necessarily follows, as submitted by the practitioner, that where there is no suggestion of dishonesty on the part of a practitioner in failing to make the notification no disciplinary consequence would likely flow from this complaint if taken alone. Of the two authorities relied on by the practitioner, in Slater the Commission indicated that it did not press for any disciplinary consequence to flow from such a complaint if taken alone. And in Health Care Complaints Commission v Conte [2021] NSWCATOD 37, the Tribunal simply said (at [54]) that such a complaint when taken alone did not justify cancellation of registration.
10. In other words, we still regard the conduct the subject of Complaint Three to be serious misconduct, and the finding of professional misconduct (Complaint Four) to be of significance.
11. We have considered those authorities relied on by the practitioner. While we accept the practitioner's submission that these authorities may not be analogous to the practitioner's circumstances, and that it is far from unprecedented to order that a practitioner be reprimanded even where the conduct was sufficiently serious to warrant a finding of professional misconduct, it is trite to observe that each matter must be determined on the basis of its own facts, matters and circumstances: Gayed v Walton [1997] NSWCA 121.
12. However, we do not accept the conduct the subject of the complaints was isolated in the context of the practitioner's personal life. As the Commission rightly submits, the most serious misconduct (being the conduct the subject of Complaint Two) cannot be characterised as an isolated error of judgment. In this respect we accept the Commission's submissions which are summarised at [71] above.

Conclusion

1. As the Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Prakash at [91]. 93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]. 94. Nevertheless, although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include: • the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction; • the unacceptability of certain kinds of conduct; and • the maintenance of confidence in the high standards of the profession. 96. Whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
2. Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration. Objectively, his professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. Any order short of deregistration would be an inadequate response to the seriousness of his misconduct.
3. We have come to that conclusion given the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession.
4. The Tribunal considers that the practitioner's registration should be cancelled, and that he should not be permitted to apply for re-registration for a period of 12 months from the date of these reasons.

Costs

1. This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282.
2. As the Commission has been successful, we propose to order the practitioner to pay the Commission's costs as agreed or as assessed.
3. If either party wishes to seek some other order, they should provide submissions to the Tribunal and the other party within two weeks, and that party should reply within a further two weeks.
4. If it becomes necessary for the Tribunal to make a determination of this issue, we propose to decide the matter "on the papers", and without a hearing. If either party opposes that course they should address that matter in their submissions

Conclusion

1. The Tribunal orders: 1. The respondent's registration as a pharmacist is cancelled. 2. The respondent may not apply for review of the cancellation order for a period of 12 months. 3. The Tribunal proposes to order the respondent to pay the applicant's costs as agreed or as assessed. If either party wishes to seek some other order, they should provide submissions to the Registry and the other party within two weeks of the date of publication of these reasons, and that party should reply within a further two weeks.

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ATTACHMENT A Proposed Protective orders Reprimand

1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law 2009 (NSW) ("the Health Practitioner Regulation National Law"), the Tribunal reprimands the respondent. Practice conditions
2. Under section 149A(1) of the Health Practitioner Regulation National Law, the Tribunal directs that the following conditions be imposed on the respondent's registration: 1) Must within 3 months from the date of the Tribunals orders, provide documentary evidence to the Pharmacy Council of NSW that he has satisfactorily completed the Pharmaceutical Society of Australia's (PSA) Ethics and Dispensing in Pharmacy Practice course. 2) Prior to seeking review of these conditions to deliver, to the satisfaction of the Pharmacy Council of NSW, a tutorial to a panel of pharmacists approved by the Council on the subjects of: a) An outline of a pharmacist's obligations as a proprietor pharmacist, with reference to the legislative framework governing this area of practice. b) His learnings from the Pharmaceutical Society of Australia's (PSA) Ethics and Dispensing in Pharmacy Practice course including a reflection on the complaint that led to the imposition of conditions. 3) To obtain Pharmacy Council of NSW approval prior to changing the nature or place of his practice. 4) To work no more than forty (40) hours per week. 5) To authorise the Pharmacy Council of NSW to notify current and future persons or organisations at places where he works as a pharmacist in Australia, of any issues arising in relation to compliance with these conditions. 6) Within 2 months of the Tribunal's orders made in [stage two case name] dated [insert], he is to submit to the Pharmacy Council his proprietor audit checklist for approval. i. Upon obtaining approval from the Council, to implement the proprietor audit checklist and provide evidence to the Council of its implementation within 30 days. 7) Within six (6) months of the date of these orders, to engage Mr Albert Regoli to attend on three (3) separate occasions and review with Mr Kaye the implementation of the proprietor audit checklist at a pharmacy of which Mr Kaye is a proprietor 8) Mr Kaye authorises and directs Mr Regoli to provide to the Pharmacy Council a report on the implementation of the proprietor audit checklist following each occasion he performs a review. 9) To submit to the Pharmacy Council, on a monthly basis, a daily register at each pharmacy of which he is a proprietor in which each pharmacist on duty record their name as a pharmacist on duty and the times at which they started and ended their workday. 10) To not act as a pharmacist in charge. Review
3. The appropriate review body for the purpose of a review under Section 163 -163C of the Health Practitioner Regulation National Law is the Pharmacy Council of NSW when the respondent has a principal place of practice in NSW.
4. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Pharmacy Board of Australia.

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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 July 2022