Health Care Complaints Commission v Lowe - [2023] NSWCATOD 121 - NSWCATOD 2023 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Lowe

[2023] NSWCATOD 121

NCAT Occupational|2023-06-19

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Court

NCAT Occupational

Decision date

2023-06-19

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

REASONS FOR DECISION

This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Michael Stanley Lowe, following a determination by the Director of Proceedings of the HCCC to prosecute Complaints against the Respondent. Mr Lowe was first registered as a pharmacist on 5 April 1983. His registration was suspended on 22 December 2021 by the Pharmacy Council of NSW (Council) pursuant to s 150(1)(a) of the Health Practitioner Regulation National Law (NSW) (National Law).
The Complaints against the Respondent are that he has been convicted of a criminal offence under s 144(a) of the National Law and that he is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law.
The HCCC bears the onus of proof of the Complaints. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41; Gautam v Health Care Complaints Commission [2021] NSWCA 85; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24].
If the Tribunal finds the Complaints against the Respondent to have been proved the HCCC seeks the following orders: 1. an order cancelling the Respondent's registration under section 149C(1)(c) of the National Law; 2. an order under section 149C(7) that an application for review of the order under Division 8 may not be made until after 4 years; and 3. an order under clause 13 of Schedule 5D of the National Law that the Respondent pay the HCCC's costs as agreed or assessed.
The Respondent has admitted the conduct that forms the basis of the Complaints pressed against him and does not oppose an order cancelling his registration. However, the Respondent submitted that a costs order should not be made against him.

[3]

Relevant Legislation

It is convenient to set out below those provisions of the National Law relevant to this application.
Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; … (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …
Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3B of the National Law, which is also an additional provision for NSW, relevantly provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
A "NSW provision" is defined in s 5 of the National Law as:
5 Definitions (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation..
Section 109 of the National Law provides: 109 Annual statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following - … (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration;
Criminal history is defined in s 5 of the National Law as follows: criminal history, of a person, means the following - (a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law; (b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence; (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.
Section 130 of the National Law states: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. … (3) In this section - relevant event means - (a) in relation to a registered health practitioner - (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or …
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 - … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this 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.
Section 144, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 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.
Section 145D, an additional provision for NSW, relevantly provides: 145D Serious complaints must be referred to Tribunal [NSW] (1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration.
Section 145I, an additional provision for NSW, provides: 145I Complaint need not be referred if health practitioner or student no longer registered [NSW] A Council or the Commission may decide not to refer a complaint under this Subdivision if the registered health practitioner or student concerned has ceased to be registered.
Section 149, which is an additional provision for NSW, provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal.
Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; …

[5]

Drug related offences

On 18 June 2020, the Respondent was charged with the following offences: 1. 1 count of Dealing with Property Suspected of Being Proceeds of Crime contrary to section 193C(1) of the Crimes Act 1900 (NSW) (Charge 1); and 2. 1 count of Supply Prohibited Drug Not Less Than Commercial Quantity contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (Charge 2).
On 17 March 2022, the Respondent pleaded guilty to and was convicted in the District Court of New South Wales of those two offences (Convictions 1 and 2).
According to the Statement of Agreed Facts before the Sentencing Judge the Respondent was part of a small criminal group which was led by an associate of his, Ms Li. This group had the shared purpose of the supply of prohibited drugs. The Respondent facilitated the storage of cash and drugs for Ms Li and obtained supplies of methylamphetamine on her behalf. On numerous occasions between May and June 2020 the Respondent agreed to purchase for the purpose of supply a total of 257.25 grams of methylamphetamine. On 18 June 2020 police executed a search warrant. The Respondent cooperated with police advising them of a safe located under the floor, the combination for the safe and how to open it. $200,750 in cash was located in the safe. The Respondent had access to this money which he used to obtain quantities of methylamphetamine at the request of Ms Li.
The Respondent was sentenced to a total term of imprisonment of 3 years, 9 months to commence on 10 March 2022 and expiring on 9 December 2025 with a non-parole period of 2 years, 3 months in respect of Convictions 1 and 2 making him eligible for parole on 9 June 2024. He is currently serving that sentence at Glen Innes Correctional Centre.
In his sentencing remarks Acting Judge JS Williams noted that the Respondent's marriage had had problems and he had separated from his wife four to five years previously. He said that the Respondent began to use methylamphetamine shortly before the separation and was using two to three times a week, but not such as to affect the running of his business. He noted the Respondent accepted the detail of his offending as set out in the Statement of Agreed Facts, acknowledged that what he had done was wrong and regretted his actions.
Acting Judge JS Williams noted: In his letter to the Court, [Mr Lowe] offers an explanation as to why he offended and that he now realises that this was wrong. He also regrets the slur his actions have placed on himself, his family and friends. I would have thought that, more so than many other people, Mr Lowe, as a pharmacist, would have well recognised the seriousness of what he was doing, and more importantly, the harm that his activities were doing to the community at large. Methlyamphetamine is well recognised as being a highly addictive drug and likely to cause psychotic episodes in users. From the agreed facts I am satisfied that Mr Lowe was a willing and active participant in the supplying of methylamphetamine and was fully aware of what was going on.
The Respondent has lodged an appeal against the severity of his sentence for these offences which has not yet been listed for hearing.

[6]

Driving Offences

On 22 September 2021, a Court Attendance Notice was created charging the Respondent with 1 count of Drive Motor Vehicle, Illicit Drug Present contrary to section 111(1)(a) of the Road Transport Act 2013 which offence was alleged to have taken place on 17 June 2021 (Charge 3). This Court Attendance Notice was served on the Respondent on 28 September 2021
On 26 January 2022 the Respondent was issued with a suspension notice with effect from 7 September 2021 due to demerit points he had incurred and the fact that he had not completed a required driver knowledge test.
On 1 February 2022 the Respondent attended Hurstville Police Station to report on bail. On that occasion police asked him if he drove to the station and he replied that he did not. Police then watched him leave the station, get into a vehicle and drive away.
On 2 February 2022, the Respondent again attended Hurstville Police Station. He was charged on that occasion with 1 count of Drive Motor Vehicle While Licence Suspended contrary to section 54(3)(a) of the Road Transport Act 2013 in respect of the 1 February 2022 incident (Charge 4).
When the Respondent left the station on 2 February 2022 he was again seen driving away from the station.
On 3 February 2022 the Respondent was charged by the NSW Police Force with 1 count of Drive Motor Vehicle While Licence Suspended contrary to section 54(3)(a) of the Road Transport Act 2013 in respect of the 2 February 2022 incident (Charge 5).
On 31 March 2022 the Respondent: 1. pleaded guilty and was convicted in the Local Court of New South Wales, at Hornsby of 1 count of Drive Motor Vehicle, Illicit Drug Present contrary to section 111(1)(a) of the Road Transport Act 2013 (Conviction 3); and 2. was sentenced as follows: "Conviction Section 10A - no penalty imposed" and disqualified the Respondent from holding a driver's/rider's licence for 4 months from 31 March 2022.
On 7 April 2022 the Respondent: 1. pleaded guilty to and was convicted in the Local Court of NSW, Sutherland of 2 counts of Drive Motor Vehicle While Licence Suspended contrary to section 54(3)(a) of the Road Transport Act 2013 (Conviction 4 and Conviction 5); and 2. was sentenced as follows: "Conviction Section 10A - no penalty imposed" and was disqualified from holding a driver's/rider's licence for 4 months from 7 April 2022.

[11]

Complaint Two

Complaint Two is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law.
The Particulars of Complaint Two are that the Respondent failed to notify the National Board within seven days of being charged with Charges 1 and 2 being charges for offences punishable by 12 months' imprisonment or more.
The Respondent admitted Complaint Two.
Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this Law".
Section 130 of the National Law stipulates that registered health practitioners must, within seven days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board written notice of the event. A relevant event in relation to a practitioner includes that the practitioner is charged with an offence punishable by 12 months' imprisonment or more or has been convicted of an offence. AHPRA receives notifications of relevant events for National Boards: s 25 of the National Law.
It is clear from the evidence that: 1. The Respondent was registered as a pharmacist from 1 July 2010 to 22 December 2021; 2. On 18 June 2020 he was charged with offences of Dealing With Property Suspected of Being Proceeds of Crime contrary to s 193C(1) of the Crimes Act 1900 (NSW) and Supplying a Prohibited Drug Not Less Than Commercial Quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). These offences carried a maximum penalty of 5 and 20 years' imprisonment respectively; 3. Those charges were relevant events as defined in s 130 of the National Law and the Respondent was required to notify the National Board of the charges within seven days; 4. In response to a request by the HCCC for information as to whether the Respondent had notified AHPRA of those charges (and other events), AHPRA responded that "It does not appear that Mr Lowe has advised AHPRA of the relevant events" and "We do not appear to have received any other correspondence or notifications concerning the matters listed, save from your office".
We find that the Respondent did not notify, and contravened s 130 of the National Law in failing to notify, AHPRA within seven days that on 18 June 2020 he had been charged with these offences.
We find that the evidence put forward by the HCCC proves the allegations in the Particulars of Complaint Two.
As contraventions by the Respondent of a provision of the National Law have been established, it follows that we must find that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law. The Tribunal has no discretion in that regard: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [24].

[12]

Complaint Three

Complaint Three is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he has contravened a provision of the National Law.
The Particulars of Complaint Three are that: 1. On or about 3 October 2020 the Respondent lodged an Application for Renewal with the National Board. 2. The Respondent contravened s 109(1)(b) of the National Law on or about 3 October 2020 by failing to include in or accompany the application for renewal submitted by the Respondent, a statement that included details of the change to his criminal history referred to in Charges 1 and 2.
The Respondent admitted Particulars One and Two of Complaint Three.
Section 109(1)(b) of the National Law provides that an application for renewal of registration must include details of any change in the applicant's criminal history in the applicant's preceding period of registration. Criminal history includes charges made against the person for an offence and convictions of the person of an offence.
It is clear from the evidence before the Tribunal that: 1. The Respondent was registered as a pharmacist from 1 July 2010 to 22 December 2021; 2. On 3 October 2020 the Respondent lodged an application for renewal of his registration for the period 1 December 2020 to 30 November 2021; 3. In the period of his registration prior to the application for renewal, that is on 18 June 2020, the Respondent was charged with Charges 1 and 2; 4. In answer to the question in the renewal application form "Since your last declaration to AHPRA has there been any change to your criminal history that you have not declared to AHPRA" the Respondent answered "No";
It is not necessary for the Tribunal to find that the Respondent knowingly gave false information on the renewal applications, in the sense of a deliberate intention to deceive at the time of completing the applications. It is sufficient for the Tribunal to find that, at the time of filling in the applications, he was aware of the criminal charges and failed to answer the relevant questions accurately: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [64].
We find that at the time of filing the renewal application the Respondent was aware of the charges which had been made against him and did not include details of the changes in his criminal history that occurred during the Respondent's preceding period of registration in his application for renewal and contravened s 109(1)(b) in failing to do so.
As a contravention of the National Law has been established, again it follows that we must find the Respondent is guilty of unsatisfactory professional conduct under s 139(1)(b) of the National Law.

[15]

Unfit in the public interest to practise

The relevant principles were summarised recently by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 at [82] - [85] as follows: 82 In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A. 83 The following principles emerge from the Tribunal's decision in Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]: (1) The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; (2) s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise" Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69]; (3) In construing s 149C(1)(c) the Tribunal needs to take into account the objectives of the National Law which relevantly include "the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether, as a result of having committed an offence they have behaved so egregiously as to render the subject practitioner "unfit in the public interest to practise the practitioner's profession"; (4) The circumstances of an offence include not only the actions and intentions of the practitioner constituting the physical and mental elements of the offence, but also the context in which those circumstances developed; the character of the practitioner; and his or her subjective circumstances. 84 Whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]. 85 "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17]. However, we are cognisant of the remarks of Harrison J in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 (albeit in the context of proceedings under s 150 of the National Law) of the concept of public interest being linked to the health and safety of the public.
The reference by the Tribunal in that case to the decision of the Court of Appeal in Pridgeon v Medical Council of NSW [2022] NSWCA 60 is a reference to the fact that, in that case the Court of Appeal held that for the purposes of s 150 of the National Law that the words "in the public interest" should be understood as meaning the public interest in the protection of the public's health and safety arising in the conduct of the practice of (in that case) medicine in respect of which a medical practitioner's registration is granted and is did not extend to include an unspecified public interest of exhibiting traits consistent with the honourable reputation of the medical profession, unrelated to the practice of medicine.
In Health Care Complaints Commission v FLJ [2023] NSWCATOD 7, which was decided after Morris, the Tribunal was required to consider whether the expression "in the public interest" for the purposes of s 149C(1)(c) of the National Law also had the meaning ascribed to it by the Court of Appeal in Pridgeon. In FLJ the Tribunal, having comprehensively reviewed the authorities and having had regard to the different purposes of s 149 (1)(c) and s 150 of the National Law held that for the purposes of s 149C(1)(c) the "public interest" consideration may include consideration of whether the practitioner's criminal offence exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession, and it is not necessary for a nexus to be established between the criminal offence and the practice of that profession.
Whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability. As the Tribunal stated in Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [22]: This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration.

[16]

Unfit in the public interest to practise - conclusion

In our view the circumstances of the offences do render the Respondent unfit in the public interest to practise as a registered pharmacist.
The drug offences which the Respondent has been convicted of were crimes of a very serious nature. The Respondent's misconduct occurred over a period of time and he agreed to purchase for supply a total of 257.25 grams of methylamphetamine. The Sentencing Judge was of the view that the Respondent was a willing and active participant in these crimes and fully aware of what he was doing.
As a pharmacist of approximately 37 years of experience at the time of his offending, the Respondent must have been aware of the harm that could be caused to the community by the supply of these illegal drugs which, as the Sentencing Judge remarked, were highly addictive and known to cause psychotic episodes.
The offences were not a "one off" error of judgment and demonstrate a serious defect in the Respondent's character.
While, as set out above, for the purposes of s 149(1)(c) it is not necessary that there be a nexus between the offending and the practise of the Respondent's profession we agree with the HCCC that in the circumstances of this case, there is such a nexus.
While there is no evidence that any offending occurred in one of the Respondent's pharmacies or in his practise as a pharmacist, the Tribunal agrees with the HCCC that the Respondent's conduct was antithetical to the Respondent's responsibilities as a pharmacist as it involved the supply of illegal drugs.
The conduct of the Respondent was entirely inconsistent with the skills and responsibilities of a pharmacist which include that they should ensure that only suitable medication is prescribed to patients.
The conduct was also contrary to the Code of Conduct which requires that pharmacists make the care of patients their first concern, practise safely and minimise risk to patients, behave ethically and in a trustworthy manner and work to protect and promote the health of individuals and the community.
The fact that the Respondent was also using methylamphetamine himself during this period is also a cause of significant concern. The Respondent has openly acknowledged his use of the drug. The explanation he gave to the Council at the s 150 hearing for commencing its use was that he had been introduced to the drug by people in a recreational way at a difficult time in his life following his marriage breakdown and while he was spending considerable time caring for his father who suffers from dementia and has high needs.
However, at the s 150 hearing the Respondent told the Council that he did not think his drug use would have significantly impacted his work as a pharmacist. He said: I don't think it would have significantly [impacted my work as a pharmacist] because obviously I'm not going to have recreational drug use and then walk into the dispensary and start doing scripts and stuff. It doesn't - it's not like that - there's usually a significant break. It's not on a continuing basis. It's just an erratic sort of basis - or irregular basis - so I don't think it impacts that way. I mean cognitively, I think it's not too bad. I think the only thing with meth is you can become a bit lackadaisical about it. The things that you need to apply yourself to that you may think "Oh I should do that". And then you think "Oh, I can't be bothered or something like that". But I try to be aware of that and be diligent in sort of giving yourself mental alerts to either concentrate, or enforce that sort of discipline to do things.
While the Respondent's evidence to the Council was that he did not often work in the dispensary at his pharmacies, he did so occasionally (if someone was sick or away on holidays and also on some public holidays) and he was otherwise generally in one of his pharmacies doing something else.
In our view, the Respondent's view that his drug use did not significantly impact his work as a pharmacist demonstrates a concerning lack of insight into the dangers of taking methylamphetamine and the potential consequences his drug use could have on his practise as a pharmacist whether physically engaged in dispensing or otherwise.
In his letter to the Sentencing Judge for the drug offences, the Respondent expressed regret and remorse and said that he accepted full responsibility for his actions. He said that he was ashamed of his actions and regretted the slur they had placed on himself, his family and friends. He said that he would seek help to get his life back on track and that, in terms of his addiction, he had sought counselling/rehabilitation through St George Hospital Drug and Alcohol Counselling. However, in that letter the Respondent does not address the impact his actions may have had on those persons to whom illicit and dangerous drugs were supplied or their families. Its focus is on the shame his conduct has brought to himself, his family and friends.
The Respondent's solicitor pointed to the Respondent having engaged with the Council and the HCCC in the course of their investigations. We acknowledge that the Respondent did participate in the s 150 hearing at what was a very difficult time in his life. He has also engaged with the Council and the HCCC throughout the investigation through his lawyer, which again has been challenging due to the fact of his incarceration and the limitations that has placed on him in communicating with his solicitor. We also accept that he has provided information to the HCCC and has provided the Tribunal with some, albeit limited, information. We understand that it was on legal advice that the Respondent chose not to be cross-examined in these proceedings and so withdrew the evidence that he had otherwise intended to rely upon.
Nevertheless, it remains the case that there is simply no evidence before the Tribunal as to the Respondent's current level of insight into the potential impact his conduct may have had on those persons supplied with methylamphetamine. Nor is there any evidence as to his own current state of addiction or health more generally.
The solicitor for the Respondent submitted that we should take into account excerpts from a psychiatric report from Dr Furst dated 21 December 2021 which were referred to by the Sentencing Judge, Acting Judge JS Williams. Judge Williams noted that Dr Furst had concluded that the Respondent had no mental incapacity and felt that his risk of reoffending was significantly lower than average. However, a copy of Dr Furst's report is not before the Tribunal nor was there an opportunity for the HCCC to cross-examine him. The report is over 18 months old.
The HCCC has not pleaded that the Respondent is impaired and we agree with the Respondent that we cannot take into account any concern that the Respondent may be impaired. However, on the material before us, while we could not and do not find that the Respondent suffers any mental incapacity, we also cannot and do not take into account Dr Furst's opinion as summarised by the Sentencing Judge.
The circumstances of the Respondent's driving offences are also cause for significant concern. The Respondent's driving while he had methylamphetamine in his system demonstrates recklessness and a disregard for the danger he posed to other road users. His repeated driving while his licence was suspended and dishonesty with the Police in this regard also demonstrate a complete disregard for the law.
Further, the Respondent did not disclose the charges which had been laid against him for crimes of very a serious nature in his application for renewal of his registration because he was concerned about the consequences of doing so. We find that the Respondent deliberately provided a false answer on this registration renewal application and that this also demonstrates a preparedness to deceive the regulator charged with overseeing his profession.
These character traits are concerning in a person to be entrusted to practise as a pharmacist.
In light of the Respondent's egregious conduct and in the absence of any further evidence as to the Applicant's current level of insight or rehabilitation, we cannot be satisfied that the Respondent currently has the necessary qualities to practice as a pharmacist. We find that the circumstances of the offences render the Respondent unfit in the public interest to practise as a pharmacist.

[17]

Disciplinary orders: principles

In the recent case of Health Care Complaints Commission v Hachem [2022] NSWCATOD 169 the Tribunal summarised the relevant principles in relation to disciplinary orders at [129] - [133] as follows: 129 Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. 130 The purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. However, that is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]. 131 In Health Care Complaints Commission v Do [2014] NSW 307 Meagher JA gave the following explanation at [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. 132 In the exercise of its protective jurisdiction the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWSC 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 133 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..."

[18]

Cancellation - conclusion

In the circumstances, we consider it is appropriate to cancel the Respondent's registration as a pharmacist pursuant to s 149C(1)(c) of the National Law.
While not opposing a cancellation order, the Respondent submitted that, as he is currently in gaol, he poses no threat to the public. However, we agree with the HCCC that that misconceives the protective purpose of our jurisdiction which extends to protecting the public from similar misconduct from other practitioners.
We are satisfied that it is necessary and appropriate to make an order cancelling the Respondent's registration to publicly condemn his serious misconduct, namely his offences and his failure to report. A cancellation order would also serve to act as a specific and general deterrent, to uphold the standards of the pharmacy profession and to preserve public confidence in the profession.
We also consider that the Respondent should be precluded from making an application to review the cancellation order for a period of time.
While the purpose of disciplinary orders is to protect the public, not to punish the Respondent, we agree with the HCCC that a significant non-review period is required in a matter involving conduct of such a serious nature.
The HCCC pointed to the fact that the Respondent currently has an appeal against the severity of his sentence on foot, which, if successful, may result in the Respondent coming out of custody sooner than June next year.
The Respondent has indicated, and we accept, that it is currently not his intention to practise as a pharmacist again. He proposes to retire. His conduct in selling his pharmacies is certainly consistent with that position and we accept the Respondent's submission that the fact that he has filed an appeal against the severity of his sentence does not indicate that his intention has changed in that regard. However, as the HCCC submitted, intentions can change and we agree that it is important to prevent against the possibility that the Respondent may seek re-registration in the relatively short term.
We have no cause for any confidence that the Respondent could be trusted to practice again in the near future. Further a non-review period needs to reflect the seriousness of the conduct and send a message to the profession that such conduct will result in grave consequences.
The HCCC proposed a non-review period of four years. While acknowledging each matter must be dealt with on its own facts, the HCCC pointed the Tribunal to two other decisions concerning pharmacists involved in the supply of drugs: Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 and Health Care Complaints Commission v Le [2018] NSWCATOD 72. In those cases, the facts of which are very different to the case before us, non-review periods of 12 months and 18 months respectively were imposed. The HCCC submitted that the offending in each of those cases was far less serious in terms of the volume of drugs supplied and the sentence imposed by the criminal courts on the practitioners in those cases, such that a significantly longer non-review period would be appropriate in this case.
In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal cautioned against the use of comparative cases in the determination of periods of suspension and their reasoning applies equally to the determination of the length of a non-review period: Health Care Complaints Commission v Mayr [2017] NSWCATOD 52 at [70].
We do not find the cases of Fearon or Le referred to by the HCCC to be of any assistance. However, in our view, in light of the seriousness of the Respondent's conduct and our concerns as to his ability to demonstrate insight or rehabilitation, we consider that a non-review period of three years is appropriate.

[19]

Costs

The Commission seeks an order that the Respondent pay its costs as agreed or assessed.
The relevant principles as to costs orders in proceedings of this nature were summarised by the Tribunal in Health Care Complaints Commission v Morris [2022] NSWCATOD 120 at [130] - [133] as follows: 130 This is a costs jurisdiction, and ordinarily costs should follow the event. As stated in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44]. It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. 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. 131 While there is a discretion not to award costs to the successful party it must nonetheless be exercised judicially "according to proper fixed principles and rules of reason and justice, not according to private opinion: Philipiah at [43] 132 The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Brush at [9] 133 In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 the Court of Appeal identified three factors that might militate against the Commission recovering all its costs namely: First, the Commission's lack of success in obtaining findings against the practitioner in respect of professional misconduct. Secondly, the Commission's failure to establish each of the particulars pleaded. Thirdly, oppressive conduct on the part of the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing.
The HCCC submitted that there has been no disentitling conduct by the HCCC in this case which would warrant a departure from the general rule. Moreover, it took steps to seek to minimise costs by preparing written submissions ahead of the hearing and not briefing counsel.
The Respondent submitted that the circumstances of this case are unusual and warrant a departure from the general rule.
He submitted that commencing these proceedings has done little to advance the protection of the public and consideration of issues of public safety. He submitted that his conduct has clearly already been denounced by the criminal justice system and that he is suffering significant consequences which serve as both a specific and general deterrent as other pharmacists would know the consequences he has suffered.
He submitted that he has made it clear to the HCCC that he intends to retire and relinquish his registration. In his submissions at the hearing he accepted that s 145D of the National Law provides that where the HCCC is of the opinion that a complaint may, if substantiated, provide grounds for suspension or cancellation of a practitioner's registration it must be referred to the Tribunal. However, he pointed to s 145I of the National Law which provides that the HCCC may decide not to refer a complaint if the practitioner has ceased to be registered. He submitted that a more pragmatic approach, which would have avoided the necessity for and costs of a hearing would have been for the HCCC to allow the Respondent time to sell his pharmacies and surrender his registration.
As the Respondent accepted at the hearing s 145I of the National Law does not currently apply as the Respondent remains registered as a pharmacist. As the HCCC submitted, the Respondent's submissions in this regard effectively seek a review by the Tribunal of the HCCC's decision to prosecute these proceedings. However, we agree with the HCCC that that is not a decision which the Tribunal has any jurisdiction to review.
Accordingly, we do not consider any basis has been established for departing from the general rule that costs follow the event.
However, while the HCCC has taken steps to minimise the costs of the hearing we do note that, having received the Respondent's reply document, the HCCC did not press Particulars 3 and 4 of Complaint 3. The Respondent's solicitor had clearly spent some time clarifying the facts in relation to those particulars as originally pressed with her client. We have already noted the challenges the Respondent and his solicitor have faced in communication given his incarceration. In the circumstances, we consider that there should be a reflection in any costs order made that costs have been wasted in relation to Particulars 3 and 4 of Complaint Three (two of the thirteen Particulars originally pressed) by both parties.
Accordingly, we would propose to make an order that the Respondent pay 90% of the HCCC's costs as agreed or assessed.

[23]

the matter of Michael Stanley Lowe, a person registered under the Health Practitioner Regulation National Law (NSW) 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 Michael Stanley Lowe ("the practitioner") of KYLE BAY being a pharmacist registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a pharmacist in New South Wales on 5 April 1983. At all times relevant to the complaint, the practitioner was the sole proprietor of Condell Park Pharmacy, Mortdale Pharmacy and Oatley Pharmacy. COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been convicted of a criminal offence in New South Wales. PARTICULARS OF COMPLAINT ONE

On or about 18 June 2020, the practitioner was charged with the following offences: 1 count of Dealing with Property Suspected of Being Proceeds of Crime contrary to section 1930(1) of the Crimes Act 1900 (NSW) [Charge 1]; and 1 count of Supply Prohibited Drug Not Less Than Commercial Quantity contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) [Charge 2].
On 17 March 2022, the practitioner was convicted in the District Court of New South Wales at Sydney Downing Centre of: 1 count of Dealing with Property Suspected of Being Proceeds of Crime contrary to section 1930(1) of the Crimes Act 1900 (NSW) [Conviction 1]; and 1 count of Supply Prohibited Drug Not Less Than Commercial Quantity contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 [Conviction 2].
On 17 March 2022, the practitioner was sentenced in the District Court of New South Wales at Sydney Downing Centre to a total term of imprisonment of 3 years, 9 months to commence on 10 March 2022 and expiring on 9 December 2025 with a non-parole period of 2 years, 3 months in respect of Conviction 1 and Conviction 2.
On or about 22 September 2021, the practitioner was charged by the NSW Police Force with 1 count of Drive Motor Vehicle, Illicit Drug Present contrary to section 111(1)(a) of the Road Transport Act 2013 [Charge 3].
On or about 2 February 2022, the practitioner was charged by the NSW Police Force with 1 count of Drive Motor Vehicle While Licence Suspended contrary to section 54(3)(a) of the Road Transport Act 2013 [Charge 4].
On 3 February 2022, the practitioner was charged by the NSW Police Force with 1 count of Drive Motor Vehicle While Licence Suspended contrary to section 54(3)(a) of the Road Transport Act 2013 [Charge 5].
On 31 March 2022, the practitioner was: convicted in the Local Court of New South Wales, at Hornsby of 1 count of Drive Motor Vehicle, Illicit Drug Present contrary to section 111(1)(a) of the Road Transport Act 2013 [Conviction 3]; and sentenced in the Local Court of New South Wales, at Hornsby to disqualification from holding a driver's/rider licence for 4 months from 31 March 2022.
On 7 April 2022, the practitioner was: convicted in the Local Court of NSW, Sutherland of 2 counts of Drive Motor Vehicle While Licence Suspended contrary to section 54(3)(a) of the Road Transport Act 2013 [Conviction 4 and Conviction 5]; and sentenced in the Local Court of NSW, Sutherland to disqualification from holding a driver's/rider licence for 4 months from 7 April 2022. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) the National Law in that the practitioner has contravened section 130(1) of the National Law. PARTICULARS OF COMPLAINT TWO
The practitioner contravened section 130(1) of the National Law in that he failed to notify the National Board within 7 days of being charged, on or about 18 June 2020, with the following offences that are punishable by 12 months or more: 1 count of Dealing with Property Suspected of Being Proceeds of Crime contrary to section 193C(1) of the Crimes Act 1900 (NSIM [Charge 1]; and 1 count of Supply Prohibited Drug Not Less Than Commercial Quantity contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) [Charge 2]. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened section 109(1)(b) of the National Law. PARTICULARS OF COMPLAINT THREE
On or about 3 October 2020, the practitioner lodged an Application for Renewal of Registration with the National Board.
The practitioner contravened section 109(1)(b) of the National Law on or about 3 October 2020, by failing to include in or accompany the application for renewal submitted by the practitioner, a statement that included details of the change to his criminal history referred to in: Particular 1 a of Complaint 1 [Charge 1]; and Particular 1 b of Complaint 1 [Charge 2].
On or about 25 September 2021, the practitioner lodged an Application for Renewal of Registration with the National Board.
The practitioner contravened section 109(1)(b) of the National Law on or about 25 September 2021, by failing to include in or accompany the application for renewal submitted by the practitioner, a statement that included details of the change to his criminal history referred to in Particular 4 of Complaint 1 [Charge 3]. 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: 11 August 2023

Health Care Complaints Commission v Lowe

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