Health Care Complaints Commission v Le

Solicitors: Health Care Complaints Commission (Applicant) Respondent - Self represented File Number(s): 2017/00377095

Background/History

1. The matter consists of a complaint against the Respondent in terms of which the Health Care Complaints Commission (HCCC) of Level 13, 323 Castlereagh Street Sydney NSW, having consulted with the Pharmacy Council of NSW in accordance with Sections 39(2) and 90(b)(3) of the Healthcare Complaints Act 1993 and Section 145(A) of the Health Practitioner Regulation National Law (NSW) ("the National Law"), complains that the Respondent, being a person who was previously registered as a pharmacist under the law, has been convicted of a criminal offence and further alleges that the practitioner, by virtue of the criminal offence and the other aspects of the complaint made against the practitioner set out below, is unfit in the public interest to practice the profession of pharmacy.
2. The practitioner was first registered as a pharmacist in Australia on 14 December 2007. On 15 April 2009, the practitioner commenced employment at the Abbotsford Point pharmacy ("the pharmacy") as the Pharmacy Manager.
3. At all times relevant to the complaints, the practitioner was employed as the Pharmacy Manager located at 551 Great North Road, Abbotsford NSW 2046.

Complaint 1 states that

1. Pursuant to Section 144(a) of the National Law, the practitioner has been convicted of a criminal offence.

Particulars of Complaint 1

1. On 11 November 2016, at the Sydney District Court in New South Wales, upon confirming a plea of guilty, the practitioner was convicted of supplying a prohibited drug, namely 28 grams (84 grams in complaint) of Morphine, on 18 March 2015 at Abbotsford, contrary to section 25 of the Drug Misuse and Trafficking Act 1985 ("the DMTA").
2. The practitioner was sentenced to a term of imprisonment of 18 months to be served by way of an intensive correction order in the community pursuant to section 7 of the Crimes (Sentencing Procedure) Act 1999 (the "C(SP)A') with immediate effect.
3. On 11 November 2016, at the Sydney District Court, upon confirming a plea of guilty, the practitioner was convicted of supplying a restricted substance otherwise than by wholesale, namely 24.2 grams of Clonazepam on 18 March 2015 at Abbotsford, contrary to section 10(3) of the Poisons and Therapeutic Goods Act 1966 ("the PTGA").
4. The practitioner was sentenced to a term of imprisonment of 12 months to be served by way of an intensive correction order in the community pursuant to section 7 of the C(SP)A with immediate effect.
5. On 11 November 2016, at the Sydney District Court, upon confirming a plea of guilty, the practitioner was convicted of dealing with property, namely $8,500 in Australian currency, suspected, on reasonable grounds, of being the proceeds of crime on 18 March 2015 at Abbotsford, contrary to section 193C(1) of the Crimes Act 1900.
6. The practitioner was sentenced to a term of imprisonment of 12 months to be served by way of an intensive correction order in the community pursuant to section 7 of the C(SP)A with immediate effect.

Complaint 2 states that

1. The practitioner Is guilty of unsatisfactory professional conduct pursuant to 139B(1)(b) of the National Law in that he has contravened Section 130(1) of the National Law.

Particulars of Complaint 2

1. The practitioner failed to notify the National Board (The Pharmacy Board of Australia) that he had been charged with offences punishable by 12 months imprisonment or more within seven days of being charged by NSW Police on 18 March 2015. 1. On 18 March 2015, the practitioner was charged by New South Wales Police with the following offences: 1. Supply prohibited drug, namely 28 grams (84 grams in complaint) of Morphine contrary to Section 25(1) of the DMTA. That offence carries a maximum penalty of 15 years imprisonment. 2. Supply prohibited drug, namely 30 grams of Testosterone, contrary to section 25 of the DMTA. That offence carries a maximum penalty of 2 years imprisonment if prosecuted summarily and 15 years imprisonment if prosecuted on indictment. 3. Supply restricted substance, namely 24.20 grams of Clonazepam other than by wholesale, contrary to section 10(3) of the PTGA. That offence carries a maximum penalty of 2 years imprisonment. 4. Supply restricted substance, namely 80 grams of Diazepam, other than by wholesale, contrary to Section 10(3) of the PTGA. That offence carries a maximum penalty of 2 years imprisonment. 5. Deal with property suspected, on reasonable grounds, of being the proceeds of crime, namely $8,500 in Australian currency, contrary to section 193C(1) of the Crimes Act 1900. That offence carries a maximum penalty of 2 years imprisonment. 1. The Australian Health Practitioners Regulation Agency received no notification (written or otherwise) by the practitioner that he had been charged with the offences particularised at (7)(a)(i) - (7)(a)(v).

Complaint 3 states that

1. The practitioner is guilty of unsatisfactory professional conduct pursuant to 139B(1)(b) of the National Law in that he has contravened section 130(1) of the National Law.

Particulars of Complaint 3

1. The practitioner failed to notify the National Board (The Pharmacy Board of Australia) that he had been convicted of criminal offences within seven days of being convicted for three offences in the Sydney District Court on 11 November 2016. 1. On 11 November 2016, at the Sydney District Court of New South Wales, the practitioner was convicted of the following offences: 1. Supply prohibited drug, namely 28 grams of Morphine on 18 March 2015 at Abbotsford, contrary to section 25 of the DMTA. 2. Supply restricted substance, namely 24.2 grams of Clonazepam on 18 March 2015 at Abbotsford, contrary to section 10(3) of the PTGA. 3. Deal with property, namely $8,500 in Australian currency, suspected, on reasonable grounds, of being the proceeds of crime on 18 March 2015 at Abbotsford, contrary to section /93C(1) of the Crimes Act.

Complaint 4 states that

1. Pursuant to section 144(e) of the National Law, the practitioner is not a suitable person to hold registration in the practitioner's profession.

Particulars of Complaint 4

1. The particulars of Complaints One, Two and Three are repeated and relied upon individually and cumulatively.
2. Additionally, the conduct, as set out below, surrounding the commission of the offences particularised in Complaint One is relied upon: 1. As at March 2015, the Drug Squad from State Crime Command within the NSW Police was investigating the supply of prohibited drugs by Trent Nguyen ("Nguyen"). As a result of this investigation, Police ascertained that Nguyen was obtaining prescription drugs from the pharmacy. 2. On 18 March 2015, Police were conducting surveillance on Nguyen. At 1pm, Nguyen drove to Abbotsford and pulled up around the corner from the pharmacy. Police saw the practitioner exit the pharmacy carrying a large cardboard box. The practitioner approached Nguyen's vehicle, opened the passenger door and placed the cardboard box on the passenger seat. 3. The practitioner then returned to the pharmacy. He was cautioned and questioned by Police. The practitioner told Police he did not have any money on him from Nguyen in exchange for the cardboard box he just gave Nguyen, but that he would be 'fixed up' at a later date. 4. The practitioner told Police that he had cash in his possession from a previous deal. He obtained a black leather brief case from the pharmacy and handed Police Australian currency totalling $8,500. 5. Police searched the black leather brief case and located two prescription pads and two boxes of Sustanon 250 (Testosterone mixture). The practitioner was asked about the prescription pads and told the Police 'Those guys gave them to me to hold on to.' 6. Nguyen was also stopped by Police as he went to drive away from the pharmacy. The cardboard box that had been placed into Nguyen's vehicle by the practitioner was searched by Police. Inside the box, Police located: 1. 121 bottles of Paxam 2 (Clonazepam) - 100 tablets in each bottle (12,100 tablets in total); 2. Eight boxes of APO-Diazepam (Diazepam) - 50 tablets in each box, 5mg dosage (400 tablets in total); 3. 10 boxes of Primoteston Depot (Testosterone Enantate) - 3 pre-filled syringes containing 1 ml (each ml contains 250g of testosterone) in each box (30 syringes in total) 4. 10 boxes of MS Contin (Morphine) - 28 tablets in each, 100mg dosage (280 tablets in total); 5. One box of Halcion (Triazolam) - 50 tablets in the box, 125mcg per tablet. 6. Two boxes of Lexapro (Escitalopram) - 28 tablets in each box, 20mg dosage (56 tablets in total). 1. The practitioner was interviewed by investigating Police on 18 March 2015 following his arrest. During the interview, the practitioner told Police: 1. that the $8,500 he had in his possession was money he had received from supplying prescription drugs to Nguyen on previous occasions; 2. that the total quantity was from two prior supplies; one for prescription drugs he had sold Nguyen for $6,500 and one for prescription drugs he had sold Nguyen for $2,000; 3. that he would charge Nguyen $10,000 for the prescription drugs supplied to him on 18 March 2015; 4. that he knew that the prescription pads had been stolen; 5. that he had paid money to purchase a prescription pad and that he had used it to forge scripts in the event the pharmacy was short, even though he recognised that a pharmacist is not a person authorised to possess or fill out a prescription pad; 6. that the Testosterone located inside the black leather brief case was for his personal use; 7. that he knew Nguyen as he had attended school with Nguyen's brother-in-law and occasionally attended Nguyen's gym; 8. that Nguyen had approached him a number of years ago and asked if he had access to the types of prescription drugs supplied on 18 March 2015; 9. that he told Nguyen that he could access the relevant drugs; 10. that he and Nguyen entered an arrangement whereby he supplied Nguyen with prescription drugs every couple of weeks and sometimes only every few months until within the past six months, when the supplies occurred on a weekly basis; 11. that overall, the supply arrangement between Nguyen and the practitioner had been going on for a number of years; 12. that the practitioner ordered the drugs through the wholesaler and submitted the order along with genuine orders for drugs required for the legitimate business of the pharmacy; 13. that he was in a position to order the additional drugs as he was the person in the pharmacy responsible for keeping account of the orders; 14. that he was the only person who worked on a Wednesday when the orders arrived so no-one detected any issue in respect to over-ordering; 15. that in order to avoid any inconsistencies between the pharmacy orders and the money, the practitioner would put the wholesale amount of the drugs purchased for Nguyen through the pharmacy's account and charge Nguyen a surplus in order to turn a profit; 16. that he had no idea what Nguyen did with the drugs and that he didn't want to know; 17. that he suspected that Nguyen would sell the drugs to men attending his gym to treat pain; 18. that the substances he sold Nguyen were not really addictive but, in relation to MS Contin (Oxycodone), prolonged use could result in tolerance; 19. that he used the money he earned to "buy things and spend on stupid stuff."

Applicant's Evidence

1. The Applicant opened its case and by consent handed up an amended complaint to be inserted in the documents provided by the Applicant.
2. The Applicant tendered as Exhibit 1 a folder of documents marked with tabs 1-38 and handed up various additional or amended documents which were accepted into Exhibit 1 by consent.
3. The Applicant handed up by consent an annotated complaint in which it referred to the various documents upon which it relied for each of the allegations.
4. The Applicant tendered as Exhibit 2 supplementary documents dated 31 January 2018.
5. The Applicant indicated that no witnesses were required for cross-examination and that the Applicant did not intend to lead any witness evidence. With that, the Applicant closed its case.

Respondent's Evidence

1. The Respondent opened his case and tendered as Exhibit 3 a Submission served by the Respondent dated 2 March 2018. In opening his evidence the Respondent indicated that he has been attending a psychologist for a period due to various personal issues with his wife's post-natal depression but indicated that he did not intend to call the psychologist to give evidence on the basis that he did not want it to have a negative effect on his children. The Applicant objected to any such evidence being available to the Tribunal if the psychologist is not called to be cross-examined. The position was explained to the Respondent in the event that the evidence was not called and the objection was then sustained.
2. By way of evidence-in-chief, the Respondent referred to Exhibit 3 and stated that he stands by the contents of his statement contained therein.
3. The statement responded to the complaint and the evidence of the Respondent therefore is shown in bold and is to the following effect.

Complaint 1 alleges

1. Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence. The complaints render the practitioner unfit, in the public interest, to practice the profession of pharmacy. While it is a fact that I have been convicted of a criminal offence and it is a serious matter, I would dispute that, as a result, I am rendered unfit to practice the profession of pharmacy as cases in the past have indicated that even though a person who was previously a health care professional (pharmacist in this case) who then was convicted of a crime can still practice as a pharmacist after a period of suspension or was allowed to reapply for registration after a period of disqualification. I note the more extreme case in terms of breadth and depth that the Victorian Civil and Administrative Tribunal decided against Mr Kozanoglu in 2016, who was convicted of a criminal offence, received a three-year sentence that included serving a nine months custodial sentence and was still permitted to reapply for his pharmacist licence registration after a three-year period. Also as noted by Her Honour, Hock, that I would "appear to have excellent prospects of rehabilitation and to be extremely unlikely to reoffend." I have pleaded guilty at the very first opportunity and have provided extra information as to the extent of the criminal activities, which some may say is due to naivety, however I saw it was taking responsibility for my action and accept the consequences that followed. Her Honour also noted that "overall this and all the other offences fall at a low level of objective gravity" and that I have "demonstrated insight, expressed considerable remorse for [my] actions and has sought to understand the motivations behind [my] offending behaviour." In terms of punishments, there has been severe financial and emotional cost even before the arrest and especially since then as a result of my action.

Complaints 2 and 3 allege

1. With regards to complaints 2 and 3, 'The practitioner is guilty of unsatisfactory professional misconduct pursuant to 139(B) of the National Law in that he has contravened section 130(1) of the National Law. I also admit guilt to these complaints and can only say that I am very embarrassed for this oversight after reeling from the life changing arrest and later conviction. To this day I am still surprised and annoyed that such a simple matter had escaped my attention.

Complaint 4 alleges

1. With regards to complaint 4, "The particulars of complaints One, Two and Three are repeated and relied upon individually and cumulatively," hence "Pursuant to section 114(e) of the National Law, the practitioner is not a suitable person to hold registration in the practitioner's profession." It is evident from past cases that practitioners who have been convicted of a criminal offense are still suitable to hold registration in their profession. As this is the case, I believe the question is of character and what the person in question has done since the conviction and will continue to do to ensure that they do not repeat the same or similar offence in the future. After recovering from the initial shock of the arrest, I decided to commit myself to finding out what happened in my decision making process given the circumstances- the breakdown of my marriage, the financial pressure, the declining business under my management and losing grip of my "self." I have since removed myself from a personally toxic environment and have learnt to embrace the multiple crises to become more resilient and positive. I have also surrounded myself in the proximity of people who are professional in their own field such as Life coaches, Gallup Strength coaches, Managing Directors of Financial Firms, Chief Financial Officers for a University, CEOs of companies and many, many great people who all make a positive difference to society. One cannot make a positive difference if one is thinking of doing wrong or doing harm. We keep each other accountable for the actions that we take in order to improve the state of the world. I have completed a Professional Speaking Bootcamp then enrolled in and completed a 12 months Protégé course to delve further into the world of professional speaking - not so much as a possible career path but more so because I want to learn more about mindset, personal development, making a positive difference to society through my own message and failures, but most of all, being surrounded by the proximity of everyone who is involved in this journey want to make a positive difference to society. I do not want to inundate you with copious amounts of character references but the ones I have submitted represents a spectrum of people who have been in my proximity for what seems like a lifetime and from those who I've recently met on my Professional Speaking journey. The key thread of the character references illustrates at its core the person that I am, that I am consistent in doing the right thing, loved my profession and have always gone above and beyond what is expected of a health care professional, and a very big proponent of helping others and giving back. With this, my goal is to continue on this professional speaking journey and share my failure as a message with the world about decision making and about living the "Yes moments" in life, where at every moment there is a choice to look at the positive, to learn and if one is present and aware then one will always make the right choice. I am in the process of extending this concept further to open up a tutoring academy for high school students that focuses on not only the academic subjects but also the life skills that a person would need as they progress through life. A bridge between school and life is a good way of putting it. My vision for this endeavour is to ensure that kids are equipped with purpose and tools to prevent them from making poor choices as I did in life and on the other hand, when they do fail in life that they will be able to pick themselves up and bounce forward stronger than ever before. To ensure this runs transparently, I have enlisted an advisory board of highly successful leaders in education, finance, human resource, and former Citibank Chief Analyst to mentor me through the process as well as keeping me accountable. As a result of the incident, I have been through physical and psychological turmoil in the past three years and it's given me a different perspective to life. It has renewed my purpose and conviction that there is more to life and that one does not need to be pressured by a situation or circumstance. During that bleak period, I've lost my purpose and lost my way and still feel the remorse and regret of my action which did not only negatively affected me but the wider stakeholders including my family and friends, the community and the profession. With regards to my pharmacist registration, I do want to get my registration back and once again practice as a pharmacist to serve the community. Even though the licence will give me employment options, I am in no hurry to go back to practicing just yet irrespective of whether you decide that a longer ban is warranted or whether I am qualified to be reinstated immediately. This is because of my commitment to mentoring other aspiring speakers for the love of the journey as well as my commitment to my tutoring academy but most importantly I feel that by making a decision that shattered the trust of and endangered the community and pillaged the respectability of the profession that I was fortunate enough to be a part of, the restitution of that action has not been paid in full in terms of punishment. This is the level of seriousness I feel of the wrongful actions I've taken. In the past few years, I have also learnt that when we isolate ourselves, we tend to make more bad decisions due to the tendency of depression and anxiety as research have shown that human being are social creatures. I will never accept a position where I am the sole employee running a quiet business that's struggling because that really plays on a person's mind after a while and desperation slowly creeps in, nor will I ever put myself in a situation where desperation can occur for the very same reason. Initially I did plead for leniency, however after careful considerations of my wrongful actions and my future as a member of the profession and society at large, I would like to invite you to ask me anything that you're still curious about or wanting to know more after reading through my submission, my character references and also the complainant's case against me. Once you have all the information, all I can hope for is a decision from the tribunal that it deems fit and fair based on the seriousness of the nature of the crime and also on past cases and supporting evidence, which I have no doubt it will be. My prime objective is to argue for my character and integrity of who I am, that even if I've made mistakes in life that it does not get hung around my neck like an albatross for the rest of my life. Having my licence reinstated is secondary.

Cross-examination of Respondent

1. The case was opened and the only evidence was that of the Respondent which is contained in bold in the paragraphs to the complaint set out above.
2. The Respondent was cross-examined on why he did not leave that pharmacy if there were problems associated with working there. He indicated that he did not leave because the pay was extremely good and he would not have got a similar job elsewhere. He was asked questions as to why he became involved in the provision of illicit drugs without appropriate prescriptions. He stated that when he was in that position he did what he did and he knows that it was wrong. He stated that he has changed his thinking and does not see money as being the be all and end all. He has surrounded himself with important and significant people who have shown him that life is more about other things. He stated that he knows that he needs to look after his family and friends and particularly his two daughters. He was asked to confirm that he did have stolen prescription pads which he could have used to provide false prescriptions to the Board. He stated that he did think about using them but did not use them.
3. He was asked whether he abused his position as a pharmacist which he agreed with. He was asked whether he knew that the drugs were addictive and dangerous, which he agreed with.
4. Cross-examination then moved on to what the Respondent had been doing since the arrest and criminal trial. He stated that he had been doing training courses but that they were not pharmacy related. He was asked why, if it was important to him to be able to practice as a pharmacist, he had not been doing training courses relating to pharmacy. He stated that he did not really know what to do, he would have to go through the criminal trial and then decide how to get back into pharmacy.
5. He was referred to tab 11 being the Transcript of Proceedings in the Criminal Trial on Thursday, 25 August 2016 where he said at page 12, line 5 that he had disgraced the profession so he didn't feel that he had the right to step back into that role anymore. He confirmed that he did say that and that was his view at the time but he since believes that if a Tribunal allows him to go back to pharmacy, he should go back. It was put to him that he said that because he thought it would help his case, which he denied. There was no further cross-examination by the Applicant.

Questioning by the Tribunal

1. He was asked about the supply of antibiotics to a customer and what that was for. He advised that he provided the antibiotics as the customer required them and did not want to go to the doctor. He confirmed that was for his personal use.
2. He was asked questions about his current income position and indicated that he has no income; he relies on his parents and his brother.
3. He was asked questions about how many dealings he had had over the two year period when he was providing drugs. He indicated that there were about ten occasions and that the approximate value was around $30,000 to $40,000.
4. Questions were put to him on dispensing medication of the type that he was charged with and the requirement for him to have hard copies of those prescriptions. His answers were somewhat erratic but did not really address the issue.
5. Questions were put to him regarding his statement that he has removed himself from risk areas. He stated that he was in a position where he was working very hard on his own. He worked a 9 hour day, 1 ½ hours of driving, coming home, cooking dinner then washing up and then by that time it was time for bed, all the nagging going on which he stated blew his head and that is why he needed to consult a psychologist.
6. Questions were put to him as to how he decided what amount of the takings that he was receiving illicitly should be paid to the pharmacy. He stated that the mark-up on the medication would normally be about 50% and that is what he would give to the pharmacy. The rest he would take.
7. He was asked about his health and the fact that he was in a situation where he was operating while under severe stress and not adhering to the requirements of the Code of Conduct in respect of a person of ill-health. He stated that he did know that he should have reported under the Code of Conduct but initially he did not recognise that he had a problem until it was too late.
8. With that, the Respondent closed his case.

Applicant's Submissions

1. Four complaints have been made (the Complaint) which are set out in paragraphs 4-18 above and which are now before the Occupational Division of the New South Wales (NSW) Civil and Administrative Tribunal (the Tribunal) for determination.

Liability and Protective Orders

1. First, the Tribunal must consider whether, as a matter of evidence, some or all of the particulars of the Complaint are made out.
2. Second, the Tribunal is then to determine whether the established particulars amount to: 1. For the purpose of Complaint One, a conviction of a criminal offence, or multiple offences in NSW; 2. For the purpose of Complaint Two and Three, unsatisfactory professional conduct; and 3. For the purposes of Complaint Four, that the respondent is not a suitable person to hold registration as a pharmacist.
3. Third, if the Tribunal is satisfied of one or more of the above findings, the Tribunal will need to consider what, if any, protective orders are to be made pursuant to ss. 149A, 149B and 149C of the National Law.

Stage One: Liability

1. Relevantly, a complaint may be made about a registered health practitioner on a ground that the practitioner has been convicted of an offence: s 144(a) National Law.

The onus and standard of proof

1. The burden of proof is upon the complainant to the civil standard. That is, the complainant must prove on the balance of probabilities that the subject matter of the complaints against the respondent are established. Due to the seriousness of the allegations and the gravity of the consequences, the relevant standard of proof is that enunciated in Briginshaw v Briginshaw, (1938) 60 CLR 336 per Dixon J at 362-36, that is, that the Tribunal must be comfortably satisfied that the matters in the complaint have been established.
2. The standard referred to in Briginshaw is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard, rather than creating heightened standard of proof.

Admission of the complaint

1. Although the respondent has admitted the substance of the conduct in Complaint One, Two and Three, to assist the Tribunal, evidence that supports each of the complaints is identified below.

Complaint One

1. Evidence includes: 1. Certificate of registration (Tab 2); 2. Conviction certificate (Tab 5); 3. Agreed facts (Tab 7); 4. Court result sheet for 11 November 2016 (Tab 12); and 5. Transcript of Sentence Judgment (Tab 13)

Complaint Two

1. Evidence includes: 1. Correspondence from AHPRA dated 14 March 2018 (Tab 30); and 2. Court Attendance Notices (Tab 14).
2. A failure to report, constituting a contravention of s 130(1) of the National Law is, by force of the statute, unsatisfactory professional conduct: s 139B(1)(b). It constitutes unsatisfactory professional conduct in this case for reasons below.
3. Section 139B(1)(b) provides that unsatisfactory professional conduct includes contravention by the practitioner of a provision of the National Law, or relevant regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
4. Section 130(1) of the National Law relevantly requires that a registered health practitioner must, within 7 days after becoming aware that a "relevant event" has occurred in relation to the practitioner, give AHPRA written notice of the event.
5. A "relevant event" includes the practitioner being charged with an offence punishable by 12 months' imprisonment or more: s 130(3)(a)(i) National Law.
6. Complaint Two alleges that the practitioner contravened s 130(1) by failing to notify AHPRA within 7 days of his being charged with offences contrary to s 25(1) of the DMTA, s 10(3) of the PTGA, and s 193C(1) of the Crimes Act 1900. All of these offences are punishable by 12 months imprisonment or more.

Complaint Three

1. Evidence includes: 1. Correspondence from AHPRA dated 14 March 2018 (Tab 30); 2. Conviction certificate (Tab 5); 3. Court results sheet for 11 November 2016 (Tab 12); and 4. Transcript of Sentence Judgment (Tab 13).
2. A failure to report, constituting a contravention of s 130(1) of the National Law is, by force of the statute, unsatisfactory professional conduct: s 139B(1)(b). It constitutes unsatisfactory professional conduct in this case for reasons below.
3. Section 139B(1)(b) provides that unsatisfactory professional conduct includes contravention by the practitioner of a provision of the National Law, or relevant regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
4. Section 130(1) of the National Law relevantly requires that a registered health practitioner must, within 7 days after becoming aware that a "relevant event" has occurred in relation to the practitioner, give AHPRA written notice of the event.
5. A "relevant event" includes the practitioner being convicted of, or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment: s 130(3)(a)(ii) National Law.
6. Complaint Three alleges that the practitioner contravened s 130(1) by failing to notify AHPRA within 7 days of him being convicted of and being the subject of a finding of guilt for an offence contrary to s 25(1) of the DMTA, s 10(3) of the PTGA, and s 193C(1) of the Crimes Act 1900. All of these offences are punishable by imprisonment.

Complaint Four

1. The evidence relied upon for particulars of Complaints One, Two and Three is repeated and relied upon individually and cumulatively.
2. Additionally, evidence relevant to the particulars set out in Complaint Four is set out in the Annotated Complaint which has been provided to the tribunal.

STAGE TWO: Exercise of powers

1. The Tribunal may exercise any power in Subdivision 6 Division 3, Part 8 of the National Law if it finds the subject matter of a complaint proved, or the practitioner admits it in writing: s. 149 National Law.
2. Relevantly, under s 149C the Tribunal may suspend or cancel registration if the Tribunal is satisfied that, relevantly: 1. the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise in the practitioner's profession (s 149C(1)(c)). This does not describe either permanent or temporary unfitness as relevant in enlivening the cancellation power (Chen v HCCC [2017] NSWCA 186 at [68], [74]); or 2. the practitioner is not a suitable person for registration in the practitioner's profession (s 149C(1)(d)).
3. If suspension or cancellation is ordered, it may provide that an application for review... may not be made until after a specified time": s 196(7). Whether offence(s) are sufficiently serious to warrant suspension or cancellation is a matter of degree and judgment: Sabag v HCCC [2001] NSWCA 411 at [82].
4. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective: see s 3A National Law. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at [34].
5. As such, the purpose of the disciplinary powers of the Tribunal is not to punish the respondent but rather to protect the public and maintain proper professional standards: Lee at [31]; HCCC v Do [2014] NSWCA 307 at [34].
6. It is important that a practitioner's conduct is considered on a case-by-case basis, as indicated by the Court's observations in HCCC v Litchfield (1997) 41 NSWLR 630 at 638C per Gleeson CJ, Meagher and Handley JJA (although Litchfield concerned professional misconduct): "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal"

Overview: protective orders in this case

1. The complainant submits that the following orders should be made in this case: 1. pursuant to s 149C(1)(c) and/or (d) of the National Law, that the respondent's registration as a pharmacist be cancelled; and 2. pursuant to s 149C(7) of the National Law, an appropriate non-review period be imposed.
2. The power to cancel the respondent's registration would be enlivened in this case if the Tribunal is satisfied that the circumstances of the offence render the respondent unfit in the public interest to practise as a pharmacist, and/or that he is not a suitable person for registration as a pharmacist.
3. For reasons below, the complainant contends that the Tribunal would be satisfied of each of these matters.
4. In relation to the appropriate period of cancellation, relevant matters to be considered by the Tribunal include the period of time likely to be required for the practitioner to change his conduct so that he is to practise without risk to the health and safety of the public. To address that question, the respondent's insight into his conduct is relevant as is his progress since the offending. However, in exercising its discretion to make such an order, the Tribunal is not required to take into account the fact that the respondent has been suspended from practice for a period: Qasim v HCCC (2015) NSWCA 282 at [73].
5. In Chen, Basten JA (at [22]) said that the fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered.
6. A time fixed under s 149C(7) does not necessarily mean that the Tribunal has - or must have - formed a view that things will have changed by the end of the period which has been fixed: Chen [88] Payne JA.
7. 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: Chen [88] Payne JA.

CIRCUMSTANCES OF THE OFFENCE: SECTION 144(A) NATIONAL LAW

1. The circumstances of the criminal offences are discussed below in particular as to the seriousness of the conduct, the respondent's state of mind at the time of the offence and breach of trust.
2. The complainant contends that in the circumstances of the offence the respondent is not fit in the public interest to practise as a pharmacist.

Seriousness of conduct

1. The conduct which constituted the criminal offences was, on any view, very serious. In short, the respondent supplied addictive prohibited drugs over an extended period of time (several years), for his personal profit.
2. It is significant that the conduct occurred on many occasions over the course of a number of years. This was not an isolated act. The fact that charges were only brought with respect to the conduct on 18 March 2015 does not minimise the seriousness. The respondent himself admits that initially the supplying was being done 'every couple of weeks, sometimes every few months' and 'recently it's been consistently weekly'. (Tab 29 P-14).
3. On each occasion that the respondent supplied the various substances, detailed planning was involved which commenced by receiving the initial request, then ordering the drugs through the pharmacy, ensuring they would be delivered on a Wednesday as he was the only one present in the pharmacy each Wednesday. (Tab 29 P 15-18)

Respondent's state of mind at the time of the offence

1. The offences involved detailed thought and premeditation.
2. The commission of the offences were driven by personal motivations to make a profit, with no regard for the safe use, or otherwise, of the prohibited substances.

Breach of trust

1. Pharmacists hold a position of trust within the community. Any activity which has the potential to diminish that trust and public confidence in the pharmacy profession should be taken very seriously.
2. The respondent's conduct exhibited traits that are concerning in a person entrusted as a pharmacist. That is, supplying large quantities of prohibited drugs which could be addictive, misused, and highly dangerous to members of the community.

Whether the respondent is a suitable person for registration as a pharmacist

1. There is a requirement under s149C of the National Law that the Tribunal be reasonably satisfied that the respondent is not a suitable person for registration as a pharmacist.
2. In addition to the matters discussed above relevant to the circumstances of the offence, the complainant also notes the admissions made by the respondent relating to being in possession of stolen prescription pads and the potential use of the them in the event the 'pharmacy was short.'
3. While the question is whether the respondent is currently not a suitable person to hold registration as a pharmacist, the conduct is in the recent past. For a significant period since the respondent's conduct was detected, either the hearing of his criminal charges was pending or he was suspended from practicing.
4. There is no specific definition of the phrase "suitable person" within the National Law. However, s 55 relevantly provides: (1) "A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- … (b) having regard to the individuals criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (h) in the Board's opinion, the individual is for any other reason (i) not a fit and proper person for general registration in the profession,. or (ii) unable to practise the profession competently and safely."
5. The meaning of the expression "not a suitable person to hold registration" in s 114(e) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 (Brush) at [721], [731]: "[I]n considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and takes their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that on/y health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills."

Protection of the public

1. The risk to the public that the respondent presents arises from his susceptibility to engage in such serious conduct. The traits that emerged and the respondent's inability to control them identify a character flaw that presents a risk to members of the community in a person entrusted with dispensing of poisons and medicines.
2. It is highly troubling that professional, ethical and legal boundaries did not inhibit him at all from accessing drugs through his professional privilege.
3. Further, because he ceased only when he was caught, the true extent of the risk that was posed by the respondent is not known. His conduct appears to have been escalating when he was detected, that is, at the time he was detected; the frequency of him supplying drugs covertly was increasing.
4. His lack of inhibition underlies the risk in this case and grounds the respondent's unsuitability to practise pharmacy. The Tribunal could not have any confidence that in the short to medium term, the respondent's propensities will be rehabilitated to a degree that the public is protected. He has not been diagnosed with any psychiatric illness. His vulnerabilities are not managed by medication. Rather, he would need to undergo a fundamental reform of character if he is to be accepted as not posing a risk to the public.
5. He has used the tools and knowledge of his practice in order to conduct criminal offences. The offences display unethical and illegal conduct over a considerable period; this of course is a gross abuse of his position as a pharmacist. He was heedless of the consequences to the community and plainly motivated by greed.
6. The Tribunal would have no cause for confidence that as at the time of this hearing, he could be trusted to practice again in the near future.

Rehabilitation

1. The Tribunal is to take into account the steps towards rehabilitation undertaken by the practitioner: Chen [98]. In this case, the steps taken by the respondent have not adequately addressed the issues demonstrated by the complaints, the facts of which are serious and admitted.
2. There is no psychiatric, psychological or counselling evidence. There is no evidence that he is re-educating himself on his ethical and legal obligations as a pharmacist. In the absence of independent evidence in this regard, his own reflections on these matters should not be given undue weight.
3. The overriding issue remains, however, that this is not a case of incompetence or inadequate care, which would not necessarily indicate a defect in character - in many cases, incompetence will be capable of rectification by undertaking further training and possibly obtaining further experience in a supervised role: see Chen [13], [20]. This case reveals disturbing character traits of a kind that make the respondent unsuitable to practise as a pharmacist until at some future date he can satisfy the Tribunal that the defects have been overcome. The defects - disregard for moral, ethical and legal limitations; planning and execution over an extended period of time. These are fundamental to the question of his suitability to practice as a pharmacist.

Failure to report charge (Complaint Two)

1. The respondent says that his failure to report his charge was an oversight. This may be accepted.
2. However, the obligation to report a relevant charge is important ethically and for regulatory reasons. The failure is relevant to an assessment of the respondent's suitability to hold registration as a pharmacist: see eg HCCC v Meng [2017] NSWCATOD 141. The scheme in the National Law rests heavily on a system of self-reporting to operate effectively. Its integrity requires that persons seeking to maintain registration are candid in their dealings with and cooperate with relevant regulatory bodies: Menz.
3. The respondent appears not to have turned his mind to the existence or importance of complete and candid reports, or to have visited the professional requirements imposed on him upon a charge being brought. The public can be no better protected from a practitioner who does not give consideration to whether there is a reporting obligation than it can from a practitioner who is deceptive. It is imperative that health practitioners understand these obligations if the integrity of the National Law scheme is to be preserved and the public protected.

Similar Disciplinary Cases

1. While it is accepted that each case turns on its own facts and comparative cases are often of limited assistance, the following cases are drawn to the Tribunal's attention.
2. In Health Care Complaints Commission v Fearon [2018] NSWCATOD 26, a pharmacist was convicted of the offence of supplying 'prescribed restricted substances' (six counts) and the offence of possession of prohibited drug (one count). He was fined $110 and placed on a bond to be of good behaviour for 12 months (at [1]). Many of the drugs alleged to have been supplied were anabolic steroids, drugs derived from the male hormone testosterone, known to be used by some athletes and body builders to increase muscle mass, strength and endurance (at [3]). Similarly, this pharmacist also failed to notify the Pharmacy Board of Australia within seven days that he had been the subject of a finding of guilt in respect of the offences, for which he was convicted (at [158]).
3. It was noted at [165]: "Our view, in the absence of a cogent reason, a pharmacist who in breach of the PTCR 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 dugs of addiction requires pharmacists to act with integrity and to scrupulously adhere to the statutory requirements governing the supply of those drugs."
4. The Tribunal cancelled the practitioner's registration as a pharmacist, with a non-review period of 12 months.
5. In Health Care Complaints Commission v Nguyen [2014] NSWCATOD 123, a pharmacist admitted conduct involving deliberate breaches of the PTGA concerning a pharmacist's obligations relevant to the recording and supply of scheduled medications containing pseudoephedrine; and the supply of nandrolone and testosterone, medications within the anabolic androgenic steroid group. It was admitted this conduct extended over a two year period (at [6]). In short, the circumstances of this case involved the practitioner supplying medications within the anabolic androgenic steroid group either without a written prescription, or in quantities which did not accord with recognised therapeutic standards of what was appropriate. The practitioner told the Tribunal that his reason for supplying unknown persons with the relevant medications for a period of two years was that he was afraid of harmful consequences if he refused to supply them, and afraid also, of reprisal if he notified the police (at [14]). The Tribunal cancelled the practitioner's registration with a non-review period of two years.

SUBMISSIONS ON COSTS

1. The Commission seeks an order that the respondent pay the Commission's costs.
2. Whilst the Tribunal has a discretion to make a costs order in respect to proceedings before it, that discretion is not unfettered and is to be guided by the relevant legal principles.
3. In Oasim v HCCC [2015] NSWCA 282 (Qasim), the Court of Appeal (per Meagher JA, McColl JA and Ward JA agreeing) has set out the principles to be applied by Tribunals in relation to the issues of costs: "[84] Clause 13 in Sch 5D of the applicable National Lam relevantly provided: (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. [85] In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Oha v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) (emphasis added)"
4. In Quasim the Court of Appeal decided that the costs discretion of the Tribunal below miscarried because it approached the exercise of that discretion from the starting point that each party should pay its own costs (at [87]), however that the general rule is that costs should follow the event (at [85]). The Court found that the respondent in the appeal should be granted leave to appeal against the costs order, and the appellant was ordered to pay the respondent's costs of the proceedings before the Tribunal (at [89]).

Application to these proceedings

1. The Commission in these proceedings is seeking an order for costs against the respondent if the application is successful.
2. In deciding whether to award costs, the Court of Appeal has held that mere impecuniosity of a practitioner is not a justifiable reason for departing from that rule.
3. It is submitted that the Commission has acted properly in the prosecution of the Complaint in these proceedings and that the Tribunal ought to make an order that the respondent pay the Commission's costs.

Oral Submissions

1. In oral submissions at the end of the hearing, the Applicant submitted that it is seeking a cancellation of the Respondent's registration with a non-review period of 18-24 months.
2. In addition, the Applicant is seeking a Prohibition Order under Section 149(c) of the National Law pursuant to which the Respondent cannot work in any environment where he would have access to any Schedule 8 drugs or addictive drugs.
3. The Applicant submitted that the real risk with this Respondent is that at the time that he was apprehended, his behaviour was escalating in frequency and that it was likely that it would have escalated further if he hadn't been caught out. It was calculated behaviour. He knew that he was alone on Wednesdays and drugs were therefore only delivered on Wednesdays. This involved quite a degree of planning.
4. In addition, the fact that he said in evidence that he didn't turn his mind to what Nguyen would be doing with his drugs is of significant concern to the Commission.
5. The Applicant submitted that a pharmacist has a duty to consider such things.
6. The Applicant submitted that the lack of active steps taken by the Respondent in the 3 years since he was arrested is of concern as to his ability to practice as a pharmacist.
7. The Applicant submitted that not only is the protection of the public from this pharmacist of relevance but also the message to the pharmaceutical profession.
8. The Applicant referred to the substantial debt which the Respondent currently has and queried how he would discharge that debt without resorting to criminal conduct.
9. In respect of the question relating to how the Respondent had removed himself from the risk environment and the failure to mention in those responses removing himself from the toxic environment, there was no mention of a breaking away from the Nguyen contact, or similar and that everything simply related to his personal life.
10. The Applicant submitted that the Tribunal should have serious concerns about how successful the possibilities of rehabilitation are.
11. The Applicant then made submissions in regard to some of the questioning by the Tribunal and the fact that the Tribunal should be alarmed by the responses to questioning by the Tribunal. The Applicant indicated that the lack of knowledge or awareness of the obligations as a pharmacist and the fact that there have been no positive steps taken to improve his knowledge, his lack of understanding demonstrated in respect of the supply of Section 8 drugs, the Code of Conduct, the CPE requirements are all relevant factors, particularly as that lack of knowledge is current as at the date of the hearing. The Applicant submitted that the evidence of the Respondent is of a self-pity flavour rather than one of contrition and a demonstrated intention to improve his position.

RESPONDENT'S SUBMISSIONS

1. The Respondent was then called upon to make submissions. Much of what the Respondent said in his evidence constitutes in a greater sense submissions on the approach which should be adopted. The Respondent stated that he appeared to be self-serving and pitying but he stated that he does have his family, children and friends to consider. Unethical behaviour was shameful and has alienated him from society. At the time he did not understand what family responsibilities involved but he does now and he will never reoffend. He stated that his family is too important to him.
2. In addressing the concerns about ongoing interaction with his ex-wife, he stated that he does continue to see his psychologist and although he did not have or give evidence that he no longer saw Nguyen, he certainly does not have any contact with him.
3. He stated that he has no expectation that he be allowed to practice straightaway and in particular not until he has done the necessary training to be reinstated. He stated that he has not put time into pharmacy education because he thought he might go to jail and then the Tribunal hearing might have decided against him.
4. With respect to CPD points, he stated that he has always met his requirements. He knew that the points system increased from 20-40 but does not know when that happened. He submitted that it would be more appropriate for him not to be capable of reapplying for registration for 12 months, rather than 18-24 months but that if that is what the Tribunal thinks appropriate, then so be it.
5. On the costs issue, he stated that he would have difficulty paying the costs but will have to make an arrangement to do that if ordered to pay the costs.
6. Finally, the Respondent conceded that a Prohibition Order would be perfectly acceptable to him.

Responsive Submissions by the Applicant

1. The Applicant cautioned the Tribunal against accepting some of the self-serving comments made from the bar table which were not given in evidence, namely not seeing Nguyen and seeing his psychologist, which seems to have terminated some months ago.

Consideration and Decision

1. The Tribunal had regard to the documents provided to it. In particular, the transcript of the evidence given in the criminal trial brought against the Respondent and in which the Respondent was found guilty, the statements of the various police officers who interviewed the Respondent, the evidence given by the Respondent to and the oral evidence given by the Respondent at the hearing.
2. While the Tribunal might be prepared to accept the statement by the Respondent that this would never happen again, the Tribunal was significantly concerned by the fact that the Respondent, over a period of approximately 2 years, provided drugs to a customer without the necessary and appropriate authorities by way of acceptable prescriptions, knowing that those drugs would be used by members of the public. His behaviour was in all respects both contrary to the law, his obligations as a pharmacist and the Code of Conduct of Pharmacists by which he is bound. Knowingly providing drugs in these circumstances is a very serious matter.
3. In addition, the Tribunal was significantly concerned about the lack of understanding by the Respondent of various aspects of his behaviour and its contravention of his obligations as a pharmacist and his obligations under the Code of Conduct.
4. While the Tribunal is not bound by the decision of the Magistrate in the criminal trial, the Tribunal is entitled to have regard to it and to the findings of the Magistrate based on the evidence given before the Magistrate. In addition, the Tribunal is obliged to have regard to the evidence given in the Tribunal hearing and to determine its position based thereupon.
5. Finally, the Tribunal must have regard not only to the protection of the public against the behaviour of this particular pharmacist but must have regard to the protection of the public in general and the need for an appropriate message to go to the members of the pharmaceutical profession to ensure that such behaviour will not be tolerated.
6. The Tribunal was deeply concerned that the Respondent took possession of and retained possession of blank stolen prescription pads. It was also concerned that the police who interviewed the Respondent on 18 March 2015 stated that he said that he used them, while in his evidence he said that he had thought about using them but did not use them. Either way he should not have bought stolen prescription pads and should not have contemplated their use.

Orders 1. The Respondent is not entitled to apply for re-registration for a period of 18 months from the date of this order. 2. There be a Prohibition Order against the Respondent under Section 149(c) for the period until such time as the registration of the Respondent may be reinstated, pursuant to which the Respondent cannot work in any environment where he would have access to any Schedule 8 drugs or addictive drugs. 3. That the costs of this application be paid by the Respondent.

Recommendations

1. The Tribunal believes it appropriate to make certain recommendations to the Respondent to assist him in understanding what he should be doing before seeking to reapply for registration as a pharmacist. These recommendations are: 1. That he develop a CPD plan in that period of time available to be provided to the Pharmacy Board if he does apply for reregistration. 2. That he join a professional organisation to assist him with his professional development, to enable him to comply with his obligations under the Poisons and Therapeutic Goods legislation. 3. To familiarise himself with the regulations put out by the Pharmacy Board. 4. That he should consider engaging with a mentor who can assist him in improving his pharmacy practice over this period of time.

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

Amendments 23 July 2018 - [150] amended to better reflect findings in relation to each complaint. 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: 23 July 2018