Health Care Complaints Commission v Ly

NCAT Occupational|2024-07-15

lth Care Complaints Commission v Bradley [2022] NSWCATOD 47 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 Health Care Complaints Commission v Grygie (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Litchfield [1997] NSWSC 207; (1997) 41 NSWLR 630 Health Care Complaints Commission v Lucire (No 2) [2023] NSWCATOD 31 Health Care Complaints Commission v Moawad [2020] NSWCATOD 19 Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 Lee v Health Care Complaints Commission [2012] NSWCA 80 Qasim v Health Care Complaints Commission [2015] NSWCA 282 R v Byrnes [1995] HCA 1; 183 CLR 501 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Texts Cited: None Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Tony Ly (Respondent) Representation: Counsel: K Sharma (Applicant) Dr P Dwyer (Respondent)

reasons for decision

By application dated 18 January 2024, the Health Care Complaints Commission ("the Commission") applied for a disciplinary finding and orders under the Health Practitioner Regulation National Law (NSW) ("the National Law") against a practitioner pharmacist Mr Tony Ly ("the Respondent").
The orders sought by the Commission in the event that the complaints are approved or admitted are as follows: 1. Suspension of the registration of the Respondent as a practitioner under s 149C of the National Law for a period of 6 - 12 months; 2. A reprimand of the Respondent under s 149(1)(a) of the National Law; 3. Conditions to be imposed on the Respondent's registration under s 149A(1)(b) - (f) of the National Law; and 4. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law, as agreed or assessed.
The accompanying complaint filed against the Respondent set out the background to the complaints as follows: 1. The Respondent was first registered as a pharmacist on 24 November 2008. 2. In 2014, the Respondent commenced employment at Bloom's the Chemist, Mittagong ("the Pharmacy") as Pharmacist in Charge. He became a co-owner of the Pharmacy in August 2015. The Respondent was a co-owner and Pharmacist in Charge of the Pharmacy throughout the period in which the events the subject of the complaint occurred. 3. Complaint 1 of the complaint relates to an arrangement that the Respondent had with Person A and, by extension, Person A's wife, Person B. Person A was at all times in the relevant period a veteran and as such received from time to time subsidised pharmaceutical and prescription products through the Repatriation Pharmaceutical Benefits Scheme ("RPBS") for various conditions but most notably for management of his rheumatoid arthritis. Person B received similar subsidies through the Pharmaceutical Benefits Scheme ("PBS"), for among other things, management of her own rheumatoid arthritis. 4. The arrangement between the Respondent and Person A (and Person B) involved Person A providing a prescription for a drug (in most cases, etanercept) to the Respondent, and the Respondent providing in exchange either specific other products available at the Pharmacy to Person A, or a "store credit" to Person A for the purpose of purchasing miscellaneous other products at the Pharmacy of his choice. 5. The prescriptions provided by Person A for the exchange would either be his own prescriptions, or prescriptions belonging to Person B (provided with her knowledge). Once provided to the Respondent, the prescriptions would then be processed by the Respondent at the Pharmacy as if the relevant drug had been legitimately dispensed, and the Pharmacy would thereby receive reimbursement from either the RPBS or the PBS (where relevant) for the cost of prescriptions, despite the drug in question not actually being dispensed.

Complaint 1

Complaint 1 is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the Respondent has: 1. engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. "Particulars of Complaint 1 1. In or around October 2017, the Respondent traded a Continuous Positive Airway Pressure ("CPAP") machine to Person A in exchange for three (3) prescriptions for the drug etanercept (Enbrel) and on each occasion dishonestly recorded the prescribed drug as dispensed in circumstances where it had not been dispensed. 2. The Respondent engaged in the conduct in Particular 1 with the intention of dishonestly receiving reimbursement to the Pharmacy for the dollar value of the three prescriptions (approximately $3,000.00) from the Department of Veterans' Affairs. 3. Between 1 July 2018 and September 2019, the Respondent dishonestly recorded at least 8 prescriptions for etanercept obtained from Person A as dispensed in circumstances where the prescribed drug had not been dispensed, for the purpose of enabling Person A to exchange the dollar value of the prescriptions for miscellaneous items sold at the pharmacy. 4. Between 1 July 2018 and September 2019, the Respondent dishonestly recorded at least 5 prescriptions for etanercept obtained from Person B as dispensed in circumstances where the prescribed drug had not been dispensed, for the purpose of enabling Person A (Person B's husband) to exchange the dollar value of the prescriptions for miscellaneous items sold at the Pharmacy. 5. The Respondent engaged in the conduct in Particulars 3 and 4 with the intention of dishonestly receiving reimbursement to the Pharmacy for the dollar value of the prescriptions (approximately $13,685.02 total) from the RPBS and the PBS. 6. Between July 2018 - 28 June 2020, the Respondent adopted a practice of dishonestly recording various prescriptions (not etanercept) obtained from Person A as dispensed in circumstances where the prescribed drug had not been dispensed, in exchange for providing store credit to Person A equal to the dollar value of those prescriptions. 7. The Respondent engaged in the conduct in Particular 6 with the intention of dishonestly receiving reimbursement to the Pharmacy for the dollar value of the prescriptions from the RPBS."

Complaint 2

Complaint 2 is that the Respondent is guilty of professional misconduct under s 139E of the National Law in that the Respondent has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent'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 Respondent's registration. "Particulars of Complaint 2 1. Particulars of Complaint 1 are repeated and relied upon either individually and cumulatively."
The Respondent admits that he is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law, and that he is guilty of professional misconduct under s 139E of the National Law based on the conduct particularised in Complaint 1.
Following a hearing conducted under s 150 of the National Law by delegates of the Pharmacy Council of New South Wales ("the Council") the Respondent's registration was suspended effective 21 August 2020.
On 7 December 2021, the Council decided, pursuant to s 150A of the National Law, to affirm the decision made on 19 August 2020 and consequently the Respondent's suspension was continued and remains in place at the date of these reasons.

Evidence Tendered

The Commission tendered without objection a volume of documents detailing the various Council investigations with witness statements and supporting documentation.
The Respondent tendered, without objection, a statement with attachments and a number of character references in support of his Reply to the complaints and in respect of any protective orders that the Tribunal might make.

Tribunal's Task

The first step in the proceedings is to determine whether the Commission has established the facts alleged in support of its Complaints to the satisfaction of the Tribunal on the balance of probabilities (Health Care Complaints Commission v Grygie) (Termination Application) [2020] NSWCATOD 53).
In view of the nature of the allegations, we are required to apply the requirements set out in Briginshaw v Briginshaw (1938) 60 CLR 336, namely that we will find that a fact has been proven to the requisite standard only when we feel an actual persuasion of the existence of that fact because evidence of sufficient probative force has been adduced.
The next step is whether such facts as are found to have been proved establish unsatisfactory professional conduct pursuant to s 139B of the National Law, and, if so, whether such conduct is sufficiently serious to justify suspension or cancellation so as to amount to professional misconduct pursuant to s 139E of the National Law (Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [31] per Kirk JA). Accordingly, the Respondent's admissions are not the end of the matter. The Tribunal is still required to be satisfied for itself that the facts proven establish the claimed unsatisfactory professional conduct and professional misconduct.

Improper or Unethical Conduct - s 139B(1)(l)

The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct".
Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes [1995] HCA 1; 183 CLR 501. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[48]: "The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited."
The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was also considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. The Tribunal stated at [25]-[26]: "25. The use of the word 'or' in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of 'unethical conduct' has both objective and subjective elements. The word 'unethical' connotes moral opprobrium. The term 'unethical conduct' implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances." (emphasis omitted). See also Health Care Complaints Commission v Matta [2024] NSWCATOD 33 [66]-[69]; and Health Care Complaints Commission v Sathiyapal [2024] NSWCATOD 14 at [119] to [121]."
See, too: Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 at [8] - [9] in respect of a recent summary by the Tribunal of the relevant principles.

Facts Relevant to the Complaints

The Respondent commenced working at the Pharmacy in 2014. In or around August 2015, he obtained a 25% ownership share in the Pharmacy. One of the other proprietors of the Pharmacy was Ms Shabnam Naddaf Melli. Ms Melli's husband, Mr Bobby Afshari, did not have a formal role at the Pharmacy but was involved in its management on behalf of Ms Melli.
Persons A and B were existing customers of the Pharmacy when the Respondent commenced working there. Person A was entitled to benefits under the RPBS. The RPBS is available, among others, to veterans, and entitles them to prescription medication as well as over the counter items at a concessional rate. Person B was not entitled to benefits under the RPBS, but her prescriptions were subsidised by the PBS.
At the time that the Respondent commenced working at the Pharmacy, Ms Melli had an arrangement with Persons A and B whereby the Pharmacy would provide items to them which were similar in characteristics and price to the items for which Person A had scripts. Sometime after the Respondent commenced working at the Pharmacy, Ms Melli introduced him to Persons A and B, and indicated to them that the Respondent would continue the arrangement that the Pharmacy had with them.
Persons A and B suffered from rheumatoid arthritis, for which they were prescribed etanercept (Enbrel). Enbrel was supplied to the Pharmacy by Pfizer and was valued at around $1,000.00 per pack.
In or around 2017, Person B tested positive for sleep apnoea and required a CPAP machine. The cost of the CPAP machine was around $3,000.00 which Persons A and B could not afford to pay. Person A raised with the Respondent whether he could obtain the CPAP machine through the arrangement that allowed him to exchange items at the Pharmacy.
While the Respondent was initially reluctant, he proceeded to provide a CPAP machine to Person A in exchange for three Enbrel prescriptions. He recorded three prescriptions of Enbrel for Person A as being dispensed by the Pharmacy with the result that the Pharmacy was reimbursed an amount of approximately $3,000.00 from the Department of Veterans' Affairs, even though no Enbrel had in fact been dispensed. In exchange, Person A received a CPAP machine.
The Respondent's position is that he was instructed by Mr Afshari to exchange the CPAP machine for the Enbrel prescriptions. However, the Respondent was the Pharmacist in Charge and a co-proprietor of the Pharmacy at the time. He was not subject to any formal instructions from Mr Afshari. His conduct in recording the Enbrel prescriptions as dispensed, and receiving reimbursement for them (in circumstances where Enbrel had not been dispensed) was dishonest.
From around July 2018 to September 2019, the Respondent ran an account for Person A, the effect of which was that: 1. the Respondent recorded that the Pharmacy had dispensed prescriptions of Enbrel in circumstances where no Enbrel had been dispensed to them; 2. in the account for Person A, the Respondent recorded the dollar value of what was reimbursed to the Pharmacy for the Enbrel as a "store credit"; and 3. Persons A and B could obtain other items at the Pharmacy against that credit.
During that period, the Respondent recorded as dispensed at least 8 prescriptions of Enbrel for Person A, and at least 5 prescriptions of Enbrel for Person B in circumstances where those prescriptions had not been dispensed (but rather, Persons A and/or B had obtained a different item or items from the Pharmacy). By taking that course, the Pharmacy was reimbursed around $13,685.02 under the RPBS and PBS, even though the drugs for which reimbursement was being given had not been dispensed to the relevant patient.
In around September 2019, the giving of credits in relation to Enbrel prescriptions ceased. However, the Respondent continued to provide Person A with a credit for other prescriptions under the arrangement described above. He ceased that arrangement in around June 2020.

Complaint 1 - Established

On the evidence we are satisfied that the Commission has established and satisfied the requisite standard of proof in respect of the conduct the subject of Complaint 1.
The conduct the subject of this Complaint occurred in respect of the Respondent's role as Pharmacist in Charge of the Pharmacy. In that capacity the Respondent had specific duties under the Pharmacy Board of Australia Code of Conduct towards patients. Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. They must be ethical and trustworthy and must display qualities such as integrity, truthfulness, dependability and compassion (clause 1.2).
Pharmacists also have specific obligations in respect of the dispensing of medication including determining the prescribers' intentions as to the patient's medicine and dosing instructions. In addition, the accurate and truthful recording of medicines and drugs actually dispensed on the authority of the pharmacists is an important element of the regulatory regime under which the practitioner operates.
In relation to Particulars 1 and 2 of Complaint 1 (the exchange of the CPAP machine in 2017), we are satisfied and find that the Respondent engaged in that conduct and with the intention of dishonestly receiving reimbursement to the Pharmacy for the dollar value of the three prescriptions from the Department of Veterans' Affairs, and on each occasion dishonestly recorded the prescribed drug as dispensed, in circumstances where it had not been dispensed and supplied to Person A.
At the time of this conduct the Respondent was a part owner with a 25% interest in the Pharmacy.
In relation to Particulars 3 to 5 of Complaint 1, namely, the credit system the Respondent implemented in respect of the Embrel prescriptions during the period July 2018 to September 2019 we are satisfied and find that the Respondent engaged in the pleaded conduct and with the intention of dishonestly receiving reimbursement to the Pharmacy for the dollar value of those prescriptions, (approximately $13,685.02 in total) from the RPBS and PBS in circumstances where the drug had not been dispensed. The Respondent did so with the purpose of enabling Person A to exchange the dollar value of the prescriptions for miscellaneous items sold at the Pharmacy.
In relation to Particulars 6 and 7 of Complaint 1, namely, the credit system the Respondent implemented in respect of prescriptions other than Embrel during the period July 2018 and June 2020 we are satisfied and find that the evidence showed that the Respondent engaged in the conduct and with the intention of dishonestly receiving reimbursement to the Pharmacy for the dollar value of the prescriptions from the RPBS in circumstances where the prescribed drug had not been dispensed and the system was to provide for an exchange for providing "store credit" to Person A equal to the dollar value of those prescriptions.
There is no evidence before us as to the cost to the Pharmacy of the drugs prescribed, or the actual monetary benefit to the Pharmacy had the drugs in fact been dispensed and supplied to Person A or for the benefit of Person B.
In respect of the prescriptions for Embrel, the reimbursement of one unit from the Department of Veterans' Affairs would be $1,049.55. We do not have evidence as to the "mark up" for the Pharmacy for the supply although it is strictly regulated.
The effect of the arrangement was thus that instead of supplying the particular drug or drugs, with a regulated mark up, the Pharmacy could supply items and goods from the Pharmacy, including the sleep apnoea (CPAP) equipment. Those goods were not subject to the same mark up and regulation as the RPBS or PBS drugs and there is likely to have been a higher mark up and therefore a greater financial benefit to the Pharmacy. Thus, a financial benefit to the Pharmacy to supply goods to the value of $3,000.00 or $13,685.02 (if full credit was utilised) would be greater than what could be achieved by supplying the actual drugs.
The Commission submitted that the Respondent's conduct in dishonestly recording that prescription drugs had been dispensed, when they had not, lacked the propriety of behaviour expected of him and was also contrary to moral precepts. It showed a disregard for the proper functioning of the RPBS and PBS which are publicly funded schemes and which are essential to public health care. It is argued that it also showed a lack of ethics in following proper, legal procedures in the dispensation of prescription medicine. The Respondent failed to uphold the trust placed by the public in a pharmacist to deal with medicines in an ethical and responsible manner.
We agree with those submissions.
The prescriptions presented to the Respondent for dispensing to the patients concerned were obviously not intended to be simply "coupons" to exchange for other goods. The Respondent could not have been giving effect to the prescribers' intentions or the purpose for which the medicine was being prescribed. He participated in an arrangement whereby patients were foregoing their prescribed medication either relying on secondary measures to keep their conditions in suppression or not being treated at all. Dishonestly recording that he had dispensed to Persons A or B (as relevant) a prescription drug in circumstances where he had not dispended the drug was in the circumstances serious misconduct.
The Commission also argued that the Respondent's conduct was contrary to the Code of Conduct published by the Pharmacy Board of Australia which requires that practitioners, amongst other things be ethical and trustworthy and display a standard of behaviour that warrants the trust and respect of the community. We are satisfied that in each case the Respondent failed to meet those standards.
In our view, and we find, the conduct engaged in was unethical and improper and amounted to unsatisfactory professional conduct.

Complaint 2 - Professional Misconduct

Professional misconduct is not defined in the National Law.
In relation to what constitutes professional misconduct, it was held in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] by his Honour Justice Basten as follows: "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. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1)."
The determination of whether the conduct amounts to professional misconduct has, as its starting point, an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment (Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82] per Sterling J). In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper or reasonably expected standards (Health Care Complaints Commission v Litchfield [1997] NSWSC 207; (1997) 41 NSWLR 630 at 638). See, too: Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 at [10].
The Commission relies on the unsatisfactory professional conduct the subject of Complaint 1 to be sufficiently serious in nature to justify suspension or cancellation of the Respondent's registration.
The Commission relies in particular on the importance of the benefits schemes to subsidise medicines such as the PBS and RPBS. It is submitted that they are critical features of the public health system.
Deliberate interference with the integrity of those schemes should be seriously regarded. Conduct contrary to those schemes can diminish their integrity by increasing the quantum of publicly available funds needed to provide pharmaceutical benefits for the Australian population. As the Tribunal explained in Health Care Complaints Commission v Moawad [2020] NSWCATOD 19 at [71], the PBS system, which makes vital medicines affordable, relies upon the professionalism and integrity of pharmacists. We endorse those submissions.
In our view, and we find, that the Respondent's conduct exhibited dishonesty, a disregard for the proper use of publicly funded schemes, and a lack of respect for legal procedures. At the time the Respondent had also turned his mind to the fact that he was potentially defrauding the Government but accepted the risk.
In our view, we are satisfied, and find, that the conduct was sufficiently serious in nature to justify suspension or cancellation of the Respondent's registration and constituted professional misconduct. Complaint 2 is therefore established.

Protective Orders

The findings above and the admissions made by the Respondent enliven the Tribunal's jurisdiction to exercise any power conferred on it by Subdivision 6 of Division 3 as provided in s 149 of the National Law. The protective orders sought by the Commission are within Subdivision 6.
In exercising its powers, the Tribunal must observe the objectives and guiding principles of the National Law, the paramount consideration being to ensure the protection of the health and safety of the public (s 3B, formerly s 3A).
In Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do"), Meagher JA (with whom Basten and Emmett JJA agreed, held (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."
The protective objectives under the National Law thus encompass considerations of specific and general deterrence, as well as upholding public confidence in the standards of the profession, including by denouncing misconduct as unacceptable (Do at [35] and [39]).
The Tribunal has given effect to the principles formulated in Do in numerous decisions, for example, in Health Care Complaints Commission v Duggan [2015] NSWCATOD 142, the Tribunal approached the issue as follows at [42]-[43]: "The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions. In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": (a) Any need to protect the public against further misconduct by the practitioner; (b) The need to protect the public through general deterrence (of other practitioners); (c) The need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) The maintenance of public confidence in the profession; (e) The desirability of making available to the public any special skills possessed by the practitioner."
In Health Care Complaints Commission v Bradley [2022] NSWCATOD 47, the relevant principles, as stated on many occasions by earlier decisions of the Tribunal considering the making of protective orders, were stated to include the following (at [101]): "The relevant principles in determining a protective order have been stated on many occasions and include the following: (1) the protection of public safety and health is paramount; National Law, s 3A; (2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); (3) the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; (4) protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; (5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Wales Bar Association v Meakes [2006] NSWCA 340; (6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (7) the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114];"
We bear in mind in this case the principles set out at (7) that no order should be made which has more serious consequences for the practitioner than is reasonably necessary for the protective purpose of the Tribunal's jurisdiction: see also Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to).
In Health Care Complains Commission v Robinson [2022] NSWCA 164 it was held at [31] (per Kirk JA): "The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. The conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances": Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Thus the Tribunal can make an order less severe than suspension or cancellation even though it has previously found that the conduct was sufficiently serious to justify such a remedy: Karalasingham at [67]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [65]; note similarly EFA at [163]-[164]. For example, it may be that the subjective circumstances of the practitioner militate against such an order: note EFA at [171]-[172]."
The reference to EFA in that passage is a reference to the decision of the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383.
In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA stated at [20] that in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]: "1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. 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. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist."
Given the admissions made by the Respondent the issue receiving the most attention in the hearing by way of evidence and submissions concern what protective orders, if any, should be made.
In evidence in chief the Respondent drew attention to the fact that at the time of the admitted complaints he was 31 years old. He is now 38 years old and wiser. He recognises that what he did was stupid and terrible. He regretted his wrong conduct and he has tried to find ways to ensure that it never happens again.
Following his suspension in August 2020, the Respondent consulted a psychologist which has been significantly beneficial to him. He has also reached out to, and received valuable support from, his preceptor and mentor, Mr Habib Turk, an experienced pharmacist providing him with mentoring support during what he described as an extremely difficult time. The Respondent met Mr Turk in 2007 and was hired by him as a pharmacy student. Subsequently, he acted as the Respondent's preceptor in 2008 and they maintained a friendship and relationship ever since.
In order to appreciate the psychological benefit and insight achieved by the Respondent into his misconduct it is necessary to set out his evidence.
When asked his view as to the risk of repeating the conduct the subject of his admissions the Respondent said that there was "zero percentage chance" of it ever happening again. The impact on him and his professional career has been enormous.
In the Respondent's written statement he stated that pharmacy ownership was always a goal he had sought to achieve in his career in pharmacy. In relation to the Pharmacy he met Mr Afshari, a registered pharmacist, when he was employed at Camden Pharmacy sometime in 2013.
From discussions with Mr Afshari the Respondent understood at the time that he was assisting his wife, Ms Melli, a registered pharmacist, to hire a new pharmacist in charge to work at the Pharmacy in Mittagong. He was then offered a position.
The Respondent says that whilst he was aware that Mr Afshari was not a proprietor at the Pharmacy, he understood that he was proactively involved in the background and through his wife played an active role in its operations.
At the beginning of his employment at the Pharmacy in 2014 there was in place a loyalty program where approximately 200 customers were considered to be VIPs, or high value customers, as they were frequent patrons who filled many, if not all, of their prescriptions at the Pharmacy. The Respondent understood that the more prescriptions dispensed at the Pharmacy, the more income was generated from service fees, and where applicable, Government rebates such as under the PBS.
The Respondent was informed of this loyalty program by Ms Melli when he began working at the Pharmacy and was introduced to those customers in that category over time as they came in and he was on duty.
In respect of those VIP customers, the Pharmacy would from time to time send out vouchers or special offers to maintain their loyalty to the Pharmacy. The Respondent understood that this strategy was to ensure that these customers remained with the Pharmacy and did not go elsewhere. This practice apparently ceased some time in 2015.
The Respondent was first introduced to Person A and his wife, Person B, some time in 2014 shortly after he had started at the Pharmacy as Pharmacist in Charge.
Person A was a patient that fell under the RPBS, providing him with access to certain prescription medications and over the counter items at a subsidised or concessional rate.
Person B was not an eligible person under the RPBS and her prescriptions were covered by the PBS.
To the best of the Respondent's recollection, Ms Melli informed him that they were both VIP customers, that Person A was the "top" or "number one" patient at the Pharmacy in terms of prescriptions and that the arrangement that was in place when the Respondent joined the Pharmacy should continue. That arrangement permitted Person A and Person B to request a different product to what was on their prescriptions and that their requests should be fulfilled. This involved the patient handing in a prescription for a medication that was subsidised by the RPBS, or the PBS, and then the patient requesting the Pharmacy to provide him, or her, with a different product that was not subsidised by the RPBS, or PBS.
Initially, the products that were exchanged for Person A were not recorded but subsequently a system was introduced where there was a record made on paper of the credit balance remaining (after taking into account "store credits" from dispensing his prescription where the medication was not provided to him, and deducting any items he wanted to purchase from the Pharmacy). An electronic account was used where a record would be made on the Pharmacy's system by recording a credit on the patient file to fund another purchase for a prescription or over the counter item.
In relation to the sleep apnoea (CPAP) machine the subject of Complaint 1 the Respondent stated that although he did not have a contemporaneous record of the conversation he had with Person A it was to the effect that he initiated the conversation requesting that his prescription for Embrel be used in accordance with the practice outlined above to enable Person B to obtain one of these machines.
The supply of this machine was subsequently raised with Mr Afshari and Ms Melli and, according to the Respondent, Mr Afshari told him that he should "just do it".
The Respondent then acquiesced to this request.
The conduct in pursuance of these arrangements continued until approximately June 2020.
The Respondent testified that whilst initially he thought that these arrangements were inappropriate and unethical he did not want to compromise or disadvantage himself from any opportunity to obtain proprietorship with the Pharmacy. A position, he clarified, as relevant up until the time he became a proprietor in 2015.
The Respondent said that he recalls feeling that if he went against the wishes of Mr Afshari and Ms Melli he would start conflict with them and given that he had just commenced working at the Pharmacy this would work against him in the ultimate goal of pharmacy ownership.
The Respondent stated that he believed that in giving effect to the arrangement with those patients he was doing the best for the patient as he was aware that he and his wife were of low income and that he was assisting them with getting other items they needed without being out of pocket.
The Respondent said that he only acted in pursuance of this arrangement for Persons A and B and no one else.
The Respondent said that he understands that this practice was improper, dishonest and put his own desires ahead of the safety and wellbeing of the patient. He appreciates this was wrong and that he will never allow this situation to happen again.
When asked in cross examination why he acquiesced after the discussion with Mr Afshari he stated that it was because of his relationship with Mr Afshari and Ms Melli. He regarded Mr Afshari as the main contact for him even if he was not on the record as a proprietor. He always felt inferior and never considered his share in the business as an issue which allowed him to stand up to the proprietors.
He testified in cross examination that he continued with this practice because it was expected of him by Ms Melli and Mr Afshari. He felt at all times under the instructions of those two and if patients left it would cause conflict with them.
The biggest thing for him after he had become a partner in the business was that he did not want to upset that couple. Retaining the customers was part of that decision because it would, if he went along with the practice, avoid conflict with the others who had made it clear that they wanted to obtain these persons as customers.
The Respondent also stated at some length in his written statement and orally about the measures that he has undertaken post the suspension of his registration.
Those measures included a mentoring program through Mr Turk which involved regular face to face discussions, follow up phone calls and the preparation of a self-formulated program which was considered to be "remedial" actions to address the areas of concern relevant to his failures, practice standards and the public health and safety.
He also sought psychological assistance which he found of particular value. The psychological help enabled him to recognise that he was, what is described as, "conflict avoiding" by simply going along with something even though it was wrong in order to avoid conflict. He stated that he had developed a strong ability to overcome that deficit and had practised dealing with conflict and now had a proper framework in order to do so - no longer avoiding confrontation in a potential conflict situation.
Mr Turk provided a written letter of 4 May 2021 in support of the Respondent in which he set out, in some detail, the mentoring role that he played and mentoring role he has undertaken with the Respondent. The Respondent was very well known to him prior to the complaint. Mr Turk speaks favourably of the Respondent's character and states that since 2007 he acted as the Respondent's preceptor at Narellan where they later became colleagues. They maintained a post-working friendship and he regarded the Respondent as exceptionally trustworthy displaying the highest integrity, apart from the particular conduct in relation to the complaints.
Mr Turk outlines the remedial action taken with the Respondent in various sessions including focussing on PSA dispensing and ethics courses, the Australian Journal of Pharmacy current and historical articles focussing on reprimands and the experience of pharmacists in the workplace, professional support from a clinical psychologist and the insight to the Respondent's thinking.
In relation to the Respondent's reflection and understanding their joint sessions have included understanding the Council's s 150 decision, understanding his actions, taking responsibility for his actions and focussing on case studies in order to get the Respondent to fully appreciate the application of ethical standards and guidelines.
In re-examination the Respondent denied that he was seeking to blame others but his reference to the conduct of others was to put in context his own decision making and conduct for which he took full responsibility.

Period of Suspension

The Commission argued that given the Respondent's conduct, which was deliberate and dishonest, took place over a number of years, the Tribunal will require clear proof to show that he has reformed and gained the necessary insights into his conduct. The Commission argued that whilst the Respondent states that he accepts blame he has consistently sought to explain his comment by reference to instructions or pressure from others. However, his conduct spanned a period of years and the instructions from others appear to come only from two specific conversations about the system in place.
The Commission argued that in engaging in the conduct the subject of the complaint the Respondent was driven at least partially by self-interest. Initially, he wanted to become an owner of the Pharmacy. He also did not want to lose a high value customer. As time went on, he became desensitised to, and comfortable with, the process he had implemented.
The Commission argued that a further period of suspension, with the benefit of the Tribunal's written reasons, is necessary for the Respondent to fully appreciate that he placed his self-interest above the honest implementation of a public scheme of which he was a custodian. Without that appreciation, he continues to pose a risk to the public. Accordingly, the appropriate period of suspension should be 12 months. It was argued that that period is also necessary to achieve the objective of deterrence, specific as well as general.
The Respondent argued that the conduct was entirely out of character as is vouched for by the number of character referees whose evidence should be accepted and was not challenged. In addition, the Respondent relies on the evidence of Mr Turk and all the sessions that the Respondent and that mentor have engaged in over time.

Consideration

In our view, the Respondent's misconduct was of a serious nature. It involved dishonesty and undermining a system which makes vital medicines affordable and which relies upon the professionalism and integrity of pharmacists. He failed in that regard.
We are, however, satisfied and find that the Respondent accepts full responsibility for his conduct, is remorseful and has shown a degree of insight into his wrongdoing.
We are also satisfied and find that the Respondent has developed mechanisms which should allow him to deal with issues both ethically and where others may require or suggest to him a course which he opposes or is uneasy about. In our view, the mechanisms that he has developed make it less likely that he will succumb to such pressures.
We are also satisfied that it is unlikely that the Respondent will repeat the specific conduct the subject of the complaints.
In considering our protective jurisdiction it is important that the Respondent's conduct be denounced. That denunciation will occur through our reasons, by way of a reprimand and by the imposition of conditions.
Those conditions also provide a further level of protection against the possibility of the Respondent repeating his misconduct in the future.
We have, however, concluded that specific and general deterrence require a suspension of the Respondent's registration. In coming to that conclusion we are significantly influenced by the Respondent putting his self-interest above his ethical and professional obligations and, as he admitted, ahead of the safety and wellbeing of the patients. General deterrence calls for a clear message to the profession and public that conduct of the kind engaged in is unacceptable and is likely to result in this adverse impact on registration.
We have considered all the factors and have borne in mind that our actions should not exceed what is reasonably necessary for the purposes of the protective jurisdiction.
The Respondent has had his registration suspended for a considerable period of time, some 4 years. Why that unsatisfactory position has been allowed to occur by the regulatory authorities has not been explained.
Counsel for the Respondent argues that the Tribunal should take this lengthy period of suspension into account and following the hearing called in aid various cases to try and support that submission.
The relevance of a period of suspension leading up to the Tribunal exercising its powers under Subdivision 6 has been clearly articulated by the Court of Appeal and in numerous Tribunal decisions.
In Qasim v Health Care Complaints Commission [2015] NSWCA 282, the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. Meagher JA at [74] (McColl JA at [1] and Ward JA at [91] agreeing) relevantly held: "The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. … In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. …"
In Health Care Complaints Commission v Lucire (No 2) [2023] NSWCATOD 31 the Tribunal held (at [46]): "When determining any period of suspension or cancellation, we should estimate how long it is likely to take Dr Lucire to change her behaviour so that she is competent to practise without risk to the health and safety of the public: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [74]. Clear proof is required to demonstrate a change in attitude: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72]."
These factors mitigate against a lengthy period of suspension but at the same time have to be weighed against the need for general deterrence and denunciation called for in this matter.
We accept that the Respondent has used the period of his suspension to endeavour to reform himself and his approach to practice. We accept that he has made attempts to avoid a repetition of the conduct found in this matter.
The lengthy period of suspension has, as referred to in Lambert, opened the eyes of the Respondent as to the seriousness of his conduct so as to diminish significantly the likelihood of his repetition and to produce a level of insight into his own character and misconduct which did not previously exist.
In our view, a suspension period of 6 months, together with the conditions which the parties have accepted as relevant and appropriate, should follow.

Conditions

The parties addressed the conditions which would be appropriate in the event that the Tribunal decided to impose conditions on the Respondent's registration to come into effect at the expiry of any period of suspension.
In our view, we consider that those conditions are appropriate to be imposed on the Respondent's registration.
It will be necessary for the Respondent to re-establish himself in the profession and he will, in our view, benefit from the Category C supervision.
In addition, that supervision and the particular focus required in discussions with the approved supervisor should assist in addressing any concerns that the Respondent's practice again falls short of the standard reasonably required of him.

Costs

The Commission seeks an order that the Respondent pay its costs as agreed or assessed pursuant to clause 13 of Schedule 5D of the National Law.
The power to award costs is discretionary and as a general rule, costs will follow the event.
There are, however, circumstances where disentitling conduct on the part of a party might be a factor militating against the usual order as to costs (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] - [46]).
No argument was raised that there was disentitling conduct in this case.
We shall issue an order that the Respondent pay the Commission's costs as agreed or assessed.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct. 2. The Respondent is guilty of professional misconduct. 3. Under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) the Respondent is reprimanded. 4. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration is suspended for a period of 6 months from the date of this decision. 5. Under s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on the Respondent's registration at the expiry of the period of suspension in order (4) above: 1. Not to practise as a pharmacist in charge. 2. To practise under category C supervision in accordance with the Pharmacy Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 3. At each supervision meeting the practitioner is to review and discuss their practice with their approved supervisor with particular focus on: 1. Obligations as a pharmacist relating to the importance of upholding the values and professional practice standards for behaviour expected of pharmacists towards individuals, the community and society at all times. 2. Professional behaviour and conduct expected of registered pharmacists, as specified by the AHPRA Shared Code of Conduct. 3. Importance of practice specific CPD to improve and maintain their professional practice standards and retain recency of practice. 4. Creating and maintaining accurate and comprehensive records for all aspects of pharmacy practice. 5. Utilising the Pharmacy Boards Guidelines Pharmacy Board of Australia - Codes, Guidelines and Policies including: 1. Guidelines for dispensing of medicines. 2. Guidelines for proprietor pharmacists. 1. Communication and managing challenging behaviour with staff and patients. 2. Ethics and dispensing in pharmacy practice. 1. The Respondent is to pay the costs of the Commission pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), as agreed or assessed.

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: 23 August 2024

Medical Practice Act 1992(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (18 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (33)