Health Care Complaints Commission v Le

Procedural matters

1. Mr Le was not represented at the hearing, nor had he had the benefit of legal assistance in preparing the materials he submitted to the Tribunal. Notwithstanding his concessions in respect of Complaints Two and Three, we thought the proper course was to understand his position as being not admitting or denying each of Complaints Two, Four, Five and Six.
2. However, we have not adopted that position in relation to Complaint One as Mr Le pleaded guilty to the charges, admitted to us that he had been convicted, and there was a certificate of conviction in the materials relied on by the Commission.
3. Nor have we adopted that position in relation to Complaint Three, as s 139B(1)(b) of the National Law provides unsatisfactory professional includes a contravention by a practitioner (whether by act or omission) of a provision of the National Law, or the regulations under the National Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
4. Mr Le did not require any of the Commission's witnesses for cross-examination, including the principal witnesses it relied on, being Kim Dolan, the Principal Pharmaceutical Officer of the PRU, and Mr Jack Leigh, who prepared an expert report dated 12 January 2020 (Leigh Report).
5. The hearing was conducted as a combined "Stage 1" and "Stage 2" hearing.
6. At the conclusion of the hearing, we allowed Mr Le time to file written submissions. Understandably, given that Mr Le is not a lawyer these in fact were a combination of evidence and submissions. However, we have had no regard to any additional evidence which was contained in his submissions, which was not before us at the hearing and therefore was not tested by the Commission. We have considered carefully his submissions in relation to whether or not he is guilty of professional misconduct and what is the appropriate protective order.

Section 150 proceedings

1. These proceedings were conducted by the Council on 4 August 2017. For the reasons appearing in its decision dated 14 August 2017 (the Council Decision), the Council suspended Mr Le's registration.
2. At the time of the hearing, Mr Le was the pharmacist proprietor of three pharmacies in Sydney CBD. He owned two pharmacies as a sole trader (Chemist Max Pitt Street (CMP) and Sydney City Pharmacy (SCP)) and one with another pharmacist (Town Hall Pharmacy (THP)).
3. On 20 July 2017, the Council received information from the Pharmaceutical Regulatory Unit, NSW Health (PRU) that an order had been made under s 18AA of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA) imposing a restriction on Mr Le's authority as a pharmacist such that he was not to take possession of, or supply any Schedule 3 (Pharmacist Only Medicine) preparation containing pseudoephedrine.
4. The order was made for the following reasons: 1. the Australian Federal Police had found 32 cardboard boxes containing approximately 98,544 pseudoephedrine tablets. The cardboard boxes had consignment and delivery labels attached for SCP; 2. records of supply of preparations containing pseudoephedrine were provided in Mr Le's response to a s 35 notice issued under the PTGA. A large number of the records were found to be in breach of cl 24(1A) of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) as they did not record all the details of the sales as required; 3. Mr Le did not provide all the purchase records from various suppliers of preparations containing pseudoephedrine, in breach of s 35(4) of PTGA; 4. an analysis of the data supplied to the PRU and other data obtained in relation to supplies of preparations containing pseudoephedrine from SCP shows that more than 5,700 packs of pseudoephedrine have not been accounted for at SCP in the period 12 August 2014 to 12 August 2016.
5. The Council Decision notes that pseudoephedrine is a known precursor used in the manufacture of the illicit drug methamphetamine.
6. Mr Le was also the subject of a previous complaint in 2012 regarding his inability to account for large quantities of Zolpidem tablets at SCP. As a result of a Council inquiry at the time Mr Le was severely reprimanded, a finding of unsatisfactory professional conduct was made and conditions and orders were imposed on his registration.
7. The Council said that the central issue to consider was whether Mr Le poses a risk to the safety or health of the public that warrants action to be taken.
8. To determine those issues, Council said it had to answer the following questions.
9. First, had Mr Le failed to account for large quantities of pseudoephedrine-containing tablets that he purchased in the period August 2014 to August 2016? Here the Council concluded: 18. Further we note that Mr Le claims that he recalls throwing out what he describes as a large number of out of date stock. This is in contrast to his earlier statement in his submissions: I only replenished or purchased more stock when the shelves in the store room where depleted. Good business practice would suggest that stock that has gone out of date would not need to be reordered. 19. It is of major concern to the delegates that the 32 cardboard boxes containing more than 98,000 [pseudoephedrine] containing tablets have been found in the possession of a person of interest to the police. Evidence has been provided by the AFP that suggests at least some of the stock in question has been delivered to and received at SCP. 20. Mr Le acknowledges that the information provided by the AFP is concerning to him. He denies any involvement with the manufacture of illegal substances. He explains the presence of the boxes bearing labels related to SCP as being a result of offering them to anyone who is happy to recycle them. We find it difficult to reconcile that such a large number of cardboard boxes find their way from a business in the Sydney CBD to a residence in a suburb, 30km south-west of the CBD. It is then even more coincidental that they are then found to contain a large quantity of [pseudoephedrine] containing tablets. We do not accept Mr Le's explanation to be plausible. 21. Even taking into account the further sales records provided by Mr Le with regard to CMP pharmacy the discrepancy between purchases and sales cannot be ignored. We do believe that Mr Le is unable to satisfactorily account for a large quantity of [pseudoephedrine] containing tablets. Given the known use of [pseudoephedrine] in the manufacture of methamphetamine this poses a significant risk to the health and safety of the public.
10. Secondly, had Mr Le and his employed pharmacists failed to record the required details of a significant number of pseudoephedrine sales contrary to the PTGR? Here the Council concluded that the information clearly showed that significant numbers of pseudoephedrine sales were not being recorded in accordance with the PTGR at SCP.
11. Thirdly, had Mr Le failed to disclose all purchases of pseudoephedrine tablets from licensed wholesalers in the period August 2014 to August 2016 in his response to the PRU? Here the Council was "firmly" of the view that Mr Le had failed to disclose all records of supply of pseudoephedrine-containing products to the PRU, in breach of the PTGA.
12. We note that Mr Le was not obliged to, and did not, attend the Council hearing. His wife had a medical appointment with her obstetrician at the time.

Evidence before the Tribunal

1. The Commission filed two large folders of material consisting of over 50 documents. These documents included but were not limited to evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Council; a PRU investigation report of 4 July 2017 and various attachments; correspondence between the Commission and Mr Le; correspondence between the Council and Mr Le in relation to the s 150 proceedings; the Council Decision; Court Attendance Notices and prosecution submissions; a transcript of the proceedings in the Local Court of NSW; a certificate of conviction and various witness statements; a large quantity of SPC sales reports and an expert report of Mr Jack Leigh.
2. As noted above, the Amended Complaint annexes the Agreed Statement of Facts which was before the Local Court when the criminal charges the subject of Complaint One were heard.
3. Mr Le also filed a bundle of documents. Relevantly these included parts of his submissions to the Council in relation to the August 2017 s 150 hearing, various correspondence, and newspaper articles discussing the Local Court proceedings.
4. Prior to the hearing Mr Le provided a further bundle of materials to the Tribunal containing more newspaper articles (Exhibit B).
5. Importantly, shortly before the hearing he also provided a five-page statement dated 22 April 2021 to the Tribunal (Exhibit C). In the statement Mr Le makes a number of concessions about the Complaints which are noted above. In addition, there is a lot of material going to a statement of Mr Peter Galettis relied on by the Commission. Mr Le says that Mr Galettis' statement contains a series of allegations that Mr Le denies; allegations that are untested will be tested in Supreme Court proceedings brought by Mr Galettis against Mr Le in relation to the sale of SCP.
6. Mr Le's statement also contains much material about his personal circumstances, his family, his physical and mental health and other matters which we will consider when we determine the appropriate protective orders to make.
7. Finally, Mr Le made himself available for cross-examination at the hearing. Where relevant we will refer to his evidence below where we come to consider Complaints Two, Four, Five and Six.

Findings of fact

1. We commence our consideration by stating the principles we will apply in our fact-finding exercise. In this regard, we accept the Commission's submissions that the Tribunal should apply four principles in making its findings about the conduct that occurred, and whether that conduct meets the threshold of unsatisfactory professional conduct or professional misconduct. 1. First, the Tribunal is not bound by the rules of evidence and may inform itself in any manner it thinks fit: National Law, Sch 5D, cl 2; Civil and Administrative Tribunal Act 2013 (NSW), s 38(1). However, the Tribunal "must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined": Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171. 2. Second, the standard of proof is upon the balance of probabilities, although the level of persuasion the Tribunal must feel to find a matter proved to that standard increases with the gravity of the matter: Health Care Complaints Commission v Farrell [2017] NSWCATOD 160, applying Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. 3. Third, the Tribunal may rely on codes or guidelines approved by a National Board (including the Pharmacy Board of Australia) as evidence of what constitutes appropriate professional conduct for the relevant health profession: National Law, s 41. 4. Fourth, the Tribunal may draw on the expertise of its professional members in assessing the extent to which conduct falls below the relevant standard: Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111.

Complaints One and Three

1. Complaint One is admitted by Mr Le.
2. In addition, the Tribunal had before it a certificate issued by the Local Court of NSW pursuant to s 178 of the Evidence Act 1995 (NSW) dated 15 January 2020.
3. The certificate of conviction relevantly states that Mr Le was convicted of a breach of s 116(1)(c) of the National Law on 27 March 2019. We note that the Amended Complaint pleads that Mr Le was convicted of two counts of that offence. This is not stated on the certificate of conviction.
4. However, given Mr Le's admission, we find Complaint One established.
5. As noted above, s 139B of the National Law provides that a contravention by the practitioner (whether by act or omission) of a provision of the National Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention, constitutes unsatisfactory professional conduct: s 139B(1)(b).
6. Accordingly, we find Complaint Three established.

Complaint Two

1. There are five particulars to Complaint Two.

Particular 1

1. The first particular is that during the period from about 12 August 2014 to 12 August 2016 as proprietor pharmacist at SCP and CMP the practitioner ordered excessive quantities of pseudoephedrine products.
2. The Commission relies on the statement of Kim Dolan, Principal Pharmaceutical Officer, PRU, dated 23 September 2019 at [10] and [17], and Appendices 7 and 8 of her report dated 4 July 2017 (First Dolan Report), and Appendix 13 of a further report dated 27 July 2017.
3. On 27 July 2016, the PRU had received information from the Australian Federal Police via the Council that on 8 October 2014 Mr Le was found to be in possession of 98,544 pseudoephedrine tablets having consignment and delivery labels attached for SPC. Following her inspection, Ms Dolan states in the period 12 August 2014 to 12 August 2016 Mr Le purchased 10,893 packets of pseudoephedrine products, of which 5,754 packets were unaccounted for.
4. In addition, the Commission relies on the expert report of Mr Jack Leigh dated 12 January 2020 (the Leigh Report) at [7a]. Mr Le considered that possible purchases of over 7,000 units would have been excessive as it equates to approximately two years of sales.
5. Mr Le denies that he ordered excessive quantities of pseudoephedrine products as alleged; however in cross-examination he conceded that with the benefit of hindsight the purchases would seem excessive. He said that he was in the process of setting up CMP and thought (being a small pharmacy) he had to order large amounts to get discounts.
6. Having considered all this evidence, we are satisfied that Particular 1 is established.

Particulars 2 and 3

1. These particulars can be considered together.
2. The second particular is that from about 12 August 2014 to 12 August 2016, as proprietor pharmacist at SCP and CMP, Mr Le failed to adequately record and have adequate oversight and supervision of the accurate and legal recording of pseudoephedrine product sales including in compliance with cll 24 and 55 of the PTGR.
3. The third particular is that from about 12 August 2014 to 19 July 2017, as proprietor pharmacist at SCP and CMP, Mr Le failed to adequately record and in some cases record at all the transfer of PSE between SCP and CMP.
4. In cross-examination Mr Le conceded that he failed to adequately record sales of such products and transfers of those products between SCP and CMP. In acquiring his pharmacies in a short period of time, he says that he was spread thinly in trying to manage them all at the same time, and should have more adequately supervised the recording of pseudoephedrine product sales and transfers.
5. In the circumstances, we find Particulars 2 and 3 established. In addition, the evidence relied on by the Commission (namely the First Dolan Report and the Leigh Report) support this finding, together with the fact that there were no records produced by Mr Le including in response to notices under s 35 of the PTGA and s 34A of the Health Care Complaints Act 1993 (NSW) or in submissions for the August 2017 s 150 hearing.

Particular 4

1. The fourth particular is that for the period from about 12 August 2014 to 19 July 2017, as proprietor pharmacist at SCP and CMP, the practitioner failed to adequately record and in some cases record at all the disposal of pseudoephedrine products.
2. For this particular the Commission relies upon there being no such records produced by Mr Le including in response to the notices and in the submissions to the Council as part of the August 2017 s 150 hearing, other than the 'disposal log' which is the subject of Particular 1 of Complaint Six. The Commission also relies on the Leigh Report at [9] which states: Considering that total sales for 2 years according to PRU table (Summary of facts page 2) were 5139 units and according to Mr Le 7653 (ditto page 4) means that 5123 units equates to approximately the whole 2 years of sales (PRU) or 16 months (Mr Le) of sales. This would be considered an excessive quantity based on the sales history of the 2 stores and does not accord with the guidelines which state a minimal amount of stock should be held (Guidelines on Practice-Specific Issues September 2015 section 3 page 5). Mr Le has only supplied a handwritten log and this log was handed in at a later stage of the investigation (Mr Le interview 25/08/2017 page 6). Further, the contents of this log appear to have not been entered into the POS system which does not help confirm the log with the products, dates and quantities of disposal. A pharmacist should ensure responsible and accountable control of therapeutic goods (Code of ethics for pharmacists 2011 page 4) and Mr Le has stated that he had learnt from the Zolpidem incident about keeping appropriate records of scheduled medicines including [pseudoephedrine] products (Mr Le submission August 2017).
3. This particular was not admitted by Mr Le. However, having conceded in cross-examination that he failed to record the sale and transfer of pseudoephedrine products we are satisfied that Mr Le also failed to adequate record disposal of those products.
4. In the circumstances, we find Particular 4 proved.

Particular 5

1. The fifth particular is that, in the circumstances of Particulars 1 to 4, as proprietor pharmacist at SCP and CMP Mr Le failed to: 1. have an adequate overall awareness of pseudoephedrine products at his pharmacies (Particular 5(a)); 2. have regard to and comply with the Pharmacy Board of Australia's "Guidelines on practice-specific issues" (August 2010 and September 2015), "Guidelines on responsibilities of pharmacists when practising as proprietors" (December 2010), and "Guidelines for proprietor pharmacists" (September 2015) (Particular 5(b)).
2. Here the Council relies on the same evidence as for Particular 4.
3. We do not find Particular 5(a) established. Mr Le said in cross-examination that he did not understand this particular. We agree, and do not understand what the particular is supposed to convey.
4. However, we do find Particular 5(b) established.
5. Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. …
6. Having found all particulars of Complaint Two established, save for Particular 5(a), given Mr Leigh's opinion that Me Le's conduct fell significantly below the standard expected of a practitioner with similar training or experience, we are satisfied that Complaint Two is established.

Complaint Four

1. Complaint Four is that Mr Le practised in contravention of the suspension of his registration as a pharmacist on the following occasions at SCP: 1. 8 April 2018; 2. during the period from 8 August 2017 to 28 June 2018 by affixing or permitting to be affixed to medication his initials permitting medication to be dispensed; and 3. during the period from 8 August 2017 to 15 August 2018 by continuing to manage SCP including by working at the pharmacy.
2. The Council relies on a complaint dated 3 May 2018, an inspector report dated 8 April 2018, the Agreed Statement of Facts for the criminal proceedings the subject of Complaint One, and the Magistrate's findings.
3. This evidence amply proves this Complaint.
4. In addition, in cross-examination Mr Le admitted these matters, although he had explanations for his conduct, such as the locum being late or away and Mr Le having an unattended shop. He said this happened on three or four occasions, and while he sold things like hand sanitizer, he did not dispense Schedule 8 drugs. We note that in cross-examination Mr Le said that he made a "business decision to admit guilt and to move on".
5. We have set out s 139B(1)(l) of the National Law above. We are satisfied that Mr Le engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy by practising in contravention of the suspension of his registration as a pharmacist.
6. In the circumstances, we find Complaint Four proved.

Complaint Five

1. Complaint Five is that Mr Le is guilty of professional misconduct under s 139E of the National Law in that he: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
2. Complaints Two to Four are repeated and relied upon individually and cumulatively.
3. Section 139E of the National Law (which is an additional provision for NSW), provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
4. The principles relating to findings of professional misconduct were stated in Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 at [69] to [75] which we paraphrase as follows: 1. Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55]; 2. Guidance as to the circumstances in which suspension or cancellation of registration are appropriate is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") (Basten and Emmett JJA agreeing). His Honour stated: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. 2. Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; 3. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186, "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes: [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …
5. The Commission submits that Mr Le's conduct demonstrates a disregard for Mr Le's professional obligations in relation to the management of drugs that are susceptible to misuse, and contempt for the Council's suspension decision. The Commission submits that his deficient record-keeping in relation to pseudoephedrine products has created a situation where it is not known what has happened to thousands of packets of those products. That problem was compounded by his excessive ordering of pseudoephedrine products, which was proscribed by the Practice Guidelines. In addition, the Commission submits that Mr Le continuing to practise while suspended was deliberate and occurred for more than a year. The deficiencies in his practice occurred despite being severely reprimanded for similar misconduct only a few months earlier, and assuring the Council and the Commission that it would not happen again.
6. In summary, the Commission submits that, both individually and cumulatively, the particulars of Complaints Two, Three and Four demonstrate that Mr Le engaged in sufficiently serious conduct, either individually or when taken together, to justify the suspension or cancellation of his registration.
7. Mr Le, while admitting unsatisfactory professional conduct, denies professional misconduct but offers no persuasive justification for this position.
8. We accept the Commission's submission that the unsatisfactory professional conduct of Mr Le as set out in each of Complaints Two, Three and Four is unsatisfactory professional conduct of the most serious kind and when considered cumulatively warrants a finding of professional misconduct and is of a sufficiently serious nature to justify suspension or cancellation of his registration.

Complaint Six

1. Complaint Six is that pursuant to s 144(e) of the National Law, Mr Le is otherwise not a suitable person to hold registration in his profession. There are two particulars to this Complaint, namely: 1. On 25 August 2017, Mr Le presented to the Council a document he had created, with an intent to mislead and deceive, purporting to be a contemporaneous and truthful account of the disposal of large quantities of pseudoephedrine products at CMP for the period January 2015 to April 2017 (Particular 1); 2. the underlying circumstances and conduct of the criminal conviction the subject of Complaint One as set out in the annexed Agreed Statement of Facts document (Particular 2).
2. Section 144 provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.

Particular 1

1. The Commission relies on the following evidence: the "purported" 'disposal log' produced by Mr Le, the fact that this purported record was not produced by him prior to the s 150 hearing, and the transcript of the s 150A hearing.
2. Mr Le was cross-examined robustly about the creation of the log and his failure to produce it at the time of the s 150 hearing. He denied that it was not a contemporaneous document, and said that the figures were reliable.
3. We have reservations about this document and the evidence of Mr Le. However, as we have noted above, while the standard of proof is the balance of probabilities, the level of persuasion the Tribunal must feel to find a matter proved to that standard increases with the gravity of the matter.
4. We are not so satisfied and we do not find this particular established.

Particular 2

1. As to Particular 2, in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 the Tribunal considered the meaning of s 144(e) of the National Law. At [60] the Tribunal stated: … it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration.
2. The Agreed Statement of Facts tendered in the Local Court proceedings record that Mr Le agreed that he had failed to roster registered pharmacists at all times the SPC was open, did not employ a managing pharmacist to manage the SPC at all times it was open, did not inform staff that he was not a registered pharmacist and, despite a warning from a Council inspector on 8 April 2018, continued to operate and manage the SPC.
3. Regardless of the submissions of Mr Le and his evidence given in cross-examination, and his post-hearing submissions to the Tribunal, we are satisfied that Particular 2 of Complaint Six is established.

Conclusions re Complaints

1. For the above reasons, we find all Complaints established, but not Particular 5(a) of Complaint Two and Particular 1 of Complaint Six.

Protective orders

1. Having found professional misconduct established, we now turn to the question of the appropriate protective orders.

Relevant principles

1. The Commission submits, correctly, that the Tribunal's powers include the power to caution or reprimand a practitioner (National Law, s 149A(1)(a)), to impose conditions the Tribunal considers appropriate on the practitioner's registration (National Law, s 149A(1)(b)), or to suspend or cancel the practitioner's registration in certain circumstances including when: 1. the practitioner is guilty of professional misconduct (s 149C(1)(b)); 2. the practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise their profession (s 149C(1)(c)); or 3. the practitioner is not a suitable person for registration in the practitioner's profession (s 149C(1)(d)).
2. The Commission submits, and we accept, that in deciding whether and how to exercise these disciplinary powers: 1. the Tribunal must have regard to the objectives and guiding principles of the National Law: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 9(1); Do at [40]; 2. the paramount consideration must be the protection of the health and safety of the public: National Law, s 3A.
3. Another objective is to ensure that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered: National Law, s 3(2)(a). This objective includes protecting members of the public from the particular practitioner who is the subject of the complaint and from "the similar misconduct or incompetence of other practitioners": see Do at [35], quoted with approval in Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [20]. It also includes upholding public confidence in the standards of the profession, including by denouncing the misconduct as unacceptable: Do at [35] and [39].
4. The Commission submits, and again we accept, that the following matters are relevant in determining what disciplinary action accords with these objectives (Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 at [17], citing Health Care Complaints Commission v Moulds [2010] NSWNMT 1 at [47]; Health Care Complaints Commission v Gupta [2019] NSWCATOD 29 at [75]): 1. whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character; 2. the intrinsic seriousness of the misconduct in terms of fitness to practise; 3. whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character; 4. the motivation which may have given rise to the proven episode of misconduct; 5. the underlying qualities of character shown by previous and other conduct; 6. whether the practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner; 7. there is no punitive purpose in the Tribunal's disciplinary task under the National Law: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637-38. A practitioner does not receive any discount or credit because they have been punished in criminal proceedings, although the possible punitive effects of disciplinary orders should be kept in mind to the extent they are relevant in determining what is appropriate to achieve the protective purpose in particular: Lee v Health Care Complaints Commission [2012] NSWCA 80 ("Lee") at [20]; Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at 336-37; [2007] NSWCA 326; 8. for the same reasons, a practitioner is not automatically entitled to a credit for any period of suspension they have served. The question is whether cancelling a practitioner's registration, or a further period of suspension, is appropriate to protect the public and maintain professional standards: see, for example, Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [73]; 9. media coverage of a previous criminal process will not necessarily be relevant to meeting the protective objectives under the National Law, which are focused on maintaining professional standards and confidence in the profession: see, for example, Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 at [35].

The Commission's submissions

1. In summary, the Commission submits that the appropriate protective order is to cancel Mr Le's registration with a non-review period of three to four years. It makes that submission for the following reasons.
2. First, Mr Le's misconduct was very serious by reason of the following:

• Schedule 3 products are regulated under the PTGA and PTGR for reasons which include their potential for misuse. Pseudoephedrine products are specially regulated in several ways, including with more stringent record-keeping requirements, and with restrictions on their supply and quantities of stock that should be held as set out in the Practice Guidelines. Those restrictions reflect the particular liability of pseudoephedrine products to misuse in illicit manufacturing of amphetamines;
• Mr Le's excessive ordering of pseudoephedrine products and failure to properly account for the products that he ordered, sold and disposed of strike at the heart of these regulatory objectives, which are designed to minimise the risks of those products being diverted to illicit purposes;
• there are very substantial discrepancies in Mr Le's records with the result that thousands of packets of pseudoephedrine products, equating to tens and possibly hundreds of thousands of tablets, have not properly been accounted for. The large divergence between the calculations performed by the PRU and those performed by Mr Le highlights the problem, rather than ameliorating it;
• Mr Le's mismanagement of pseudoephedrine products in this case gave rise to a correspondingly high risk to public health and safety;
• Mr Le's practising while suspended was also very serious, and a deliberate disregard of an order made by the Council for the protection of the public. Its seriousness is not mitigated by any alleged necessity to attend SCP. Mr Le knew he should not have been there, and if he could not arrange for a registered pharmacist to work, he should not have opened it. His conduct continued for more than a year, including after he had been warned by a Council inspector;
• having acted in breach of a suspension, and before that having acted in breach of a condition not to practise, the Tribunal cannot be satisfied that any order short of cancellation would be sufficient to protect the public from the risk of future misconduct by Mr Le.

1. Secondly, Mr Le's conduct was not a mere error or aberration in judgment, as the same kind of conduct occurred between 2010 and 2012. He was on notice of serious deficiencies in his record-keeping and management of scheduled substances. They recurred despite Mr Le telling regulatory authorities he had improved his practices.
2. Thirdly, Mr Le has not demonstrated any remorse, insight or reformation, and has been dilatory in his engagement with regulatory authorities since the PRU investigation began. There is no evidence of any efforts he has made to address the deficiencies in his practice since his suspension.

Mr Le's submissions

1. Mr Le's statement and post-hearing submissions address a range of issues. These include the following.
2. First, his family circumstances. He is married with three young children and as he is now without employment and income he is struggling to provide for their needs. He has had to borrow money from family and friends and has debts of at least $500,000 which he does not know how he will manage to repay. He suffers from anxiety and depression. While his wife has been very supportive, she too is struggling. Having been suspended for almost four years, he has had to sell his pharmacies at huge losses. He has had to let his staff go.
3. His mother is chronically ill.
4. Being the defendant in two court proceedings places a tremendous toll on him.
5. He also says that the public is not at risk as the issue of whether he mishandled pseudoephedrine products was a one-off event which took place while he was acquiring another pharmacy. As he is in the process of selling his pharmacy and is no longer interested in ownership, there is no chance that there would be any reason to buy in this fashion again.
6. He says that he should not be made an example to inform the profession what would constitute an unreasonable or excessive number of pseudoephedrine products to be stored in a pharmacy.
7. The personal impact on him, when used as an example to other members in the profession, far outweighs any benefit they could achieve in deterrence.
8. He says that he has already suffered enough due to adverse publicity, for which reason he asks for non-publication orders in respect of these reasons.
9. In summary, he says that suspension of his registration has caused him very significant business, financial and personal hardship. He is willing to comply with any and all conditions the Tribunal may impose including courses and examinations necessary for his rehabilitation to attain registration at the end of his suspension.
10. He asks for an extension of his period of suspension rather that cancellation as, if he were deregistered, he would not be able to access professional developmental courses as they are only offered to registered health care professionals. Nor would he be able to complete a Graduate Certificate in Advanced Pharmacy Practice, for which registration is required.

Consideration of appropriate protective order

1. The public interest served by protective orders includes, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of practitioners: Prakash v Health Care Complaints Commission [2006] NSWCA 153 ("Prakash") at [91].
2. 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].
3. 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 at [20], citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].
4. 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 (Do), the unacceptability of certain kinds of conduct and the maintenance of confidence in the high standards of the profession: NSW Bar Association v Meakes [2006] NSWCA 340.
5. 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].
6. Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling Mr Le's registration. We have considered whether there is an alternative to cancellation of registration, such as suspension. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA stated at [21] and [22]: [21]… [I]n determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [22] 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. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. ...
7. The Tribunal considers that, objectively, the professional misconduct of Mr Le is of such a serious nature that the only disciplinary order appropriate is the cancellation of his registration. We consider that any order short of deregistration would be an inadequate response to the seriousness of his misconduct: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408.
8. The Tribunal considers that Mr Le's registration should be cancelled, and that he should not be permitted to apply for re-registration for a period of two years from the date of these reasons.

Costs

1. This is a costs jurisdiction, and ordinarily costs follow the event: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59; Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282.
2. For the benefit of Mr Le, we note that the relevant principles were stated in Health Care Complaints Commission v Gahan (No 2) [2021] NSWCATOD 66 at [13] as follows: … (1) the Tribunal has a discretion to order any party to pay costs to another person: Sch 5D, cl 13 of the National Law; (2) the question of costs is discretionary, the discretion being a judicial one which must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]; (3) costs are intended to compensate a successful party; costs are not intended to penalise an unsuccessful party: Philipiah at [44]; (4) it is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made: Philipiah at [44]; mere impecuniosity is not a justifiable reason for departing from the general rule: Philipiah at [42]; (5) as a general rule, in this jurisdiction costs of proceedings before the Tribunal should follow the event: Philipiah at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [87]; (6) there may be factors that might militate against the recovery by the successful party of all of its costs in particular proceedings. This includes where the Commission failed to establish all of the particulars of professional misconduct alleged: Philipiah at [42]; (7) a court or tribunal may deprive the successful party of the costs relating to an issue on which the successful party lost when that issue was clearly dominant or separable: Monie v Commonwealth of Australia (No.2) [2008] NSWCA 15 at [64].
3. We propose to make an order that Mr Le pay the Commission's costs as agreed or assessed. If either party seeks some other order, they should do so within 14 days of these reasons, such submissions being limited to 3 pages in length. The other party may respond within a further 14 days.
4. If it becomes necessary to consider whether or not to make some other costs order, the Tribunal proposes to do so "on the papers". If either party opposes that course, they should address that matter in their submissions.
5. However, we are confident that the common sense of the parties will lead to an agreed conclusion without any further intervention of the Tribunal.

Other

1. Mr Le asked the Tribunal to not disclose his name in its reasons. We decline to do so.
2. As the Commission rightly submits, the name of a person who is the subject of disciplinary proceedings should be published unless there is a "compelling reason" otherwise: see, for example, Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [44]. The possibility of adverse reputational impact, or embarrassment or humiliation, for the practitioner or his family, is not a sufficient reason to make such an order: EFA at [45]-[46]. Those are not special, exceptional or out of the ordinary circumstances justifying the corresponding detraction from the principles of open justice: Council of the Law Society of New South Wales v Konstantinidis (No 4) [2021] NSWCATOD 94 at [85].

Orders

1. The Tribunal makes the following orders: 1. All Complaints of the Amended Complaint dated 5 May 2021 are established, save for Particular 5(a) of Complaint Two and Particular 1 of Complaint Six. 2. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) the registration of David Le is cancelled. 3. Mr Le may not make an application for review of Order 2 of these orders for a period of two years from the date of these orders. 4. If either party seeks an order as to costs, other than an order that Mr Le pay the Commission's costs as agreed or assessed, it must file with the Registry and give to the other party submissions within fourteen days of these reasons, such submissions being limited to three pages in length. 5. The other party may respond within a further fourteen days. 6. If either party opposes the Tribunal making its costs decision "on the papers", they should address that matter in their submissions.

ATTACHMENT 1 AMENDED COMPLAINT (5 MAY 2021) The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr David Le ("the practitioner")… being a pharmacist registered under the National Law, BACKGROUND TO ALL COMPLAINTS On 9 November 2006 the practitioner was first registered as a pharmacist. From 2010 the practitioner was the sole proprietor of 'Sydney City Pharmacy' (SCP) and from August 2014 'Chemist Max' pharmacy (CMP). These pharmacies including through the practitioner's employed staff and the practitioner dispensed pseudoephedrine containing products (PSE products), which are schedule 2 and 3 substances under the Poisons and Therapeutic Goods Regulation 2008 (NSW). On 7 August 2017 the practitioner's registration as a pharmacist was suspended. COMPLAINT ONE Pursuant to s144(a) of the National Law the practitioner has been convicted of a criminal offence, namely: on 27 March 2019, at the Downing Centre Local Court the practitioner was convicted of two counts of the offence 'claim to be registered under this Law or hold himself or herself out as being registered', contrary to s116(1)(c) of the National Law. He was fined in accordance with s116 of the National Law. COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. PARTICULARS OF COMPLAINT TWO 1. During the period from about 12 August 2014 to 12 August 2016 as proprietor pharmacist at SCP and CMP the practitioner ordered excessive quantities of PSE products. 2. From about 12 August 2014 to 12 August 2016 as proprietor pharmacist at SCP and CMP the practitioner failed to adequately record, and have adequate oversight and supervision of the accurate and legal recording of PSE product sales including in compliance with clauses 24 and 55 of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 3. From about 12 August 2014 to 19 July 2017 as proprietor pharmacist at SCP and CMP the practitioner failed to adequately record and in some cases record at all the transfer of PSE between SCP and CMP. 4. For the period from about 12 August 2014 to 19 July 2017 as proprietor pharmacist at SCP and CMP the practitioner failed to adequately record and in some cases record at all the disposal of PSE products. 5. In the circumstances of particulars (1) to (4) as proprietor pharmacist at SCP and CMP the practitioner failed to: a. have an adequate overall awareness of PSE products at his pharmacies; b. have regard to and comply with the Pharmacy Board of Australia's Guidelines on practice-specific issues (August 2010 and September 2015), Guidelines on responsibilities of pharmacists when practicing as proprietors (December 2010), and Guidelines for proprietor pharmacists (September 2015). COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner breached a provision of the National Law. PARTICULARS OF COMPLAINT THREE 1. Complaint One is repeated and relied upon. COMPLAINT FOUR The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. PARTICULARS OF FOUR 1. The practitioner practiced 2. in contravention of the suspension of his registration as a pharmacist on the following occasions at SCP: a. 8 April 2018; b. during the period from 8 August 2017 to 28 June 2018 by affixing or permitting to be affixed to medication his initials permitting medication to be dispensed; c. during the period from 8 August 2017 to 15 August 2018 by continuing to manage SCP including by working at the pharmacy. COMPLAINT FIVE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FIVE 1. Complaints Two to Four are repeated and relied upon individually and cumulatively. COMPLAINT SIX Pursuant to section 144(e) of the National Law, the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. BACKGROUND TO COMPLAINT SIX On 12 August 2016 the NSW Health Pharmaceutical Regulatory Unit (PRU) conducted an audit of the practitioner's PSE stock and served him with a notice to account for his PSE purchases from 2014-2016. On 4 August 2017 the practitioner submitted a written submission to the Pharmacy Council of NSW (the Council) concerning the PRU investigation. PARTICULARS OF COMPLAINT FOUR 1. On 25 August 2017 the practitioner presented to the Council a document the practitioner had created, with an intent to mislead and deceive, purporting to be a contemporaneous and truthful account of the disposal of large quantities of PSE products at CMP for the period January 2015 to April 2017. 2. The Commission repeats and relies on the underlying circumstances and conduct of the criminal conviction the subject of Complaint One as set out in the annexed Agreed Statement of Facts document.

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: 30 July 2021