Health Care Complaints Commission v Matta

NCAT Occupational|2024-03-06|Before: Blake AM, Dr P

Introduction

The respondent has admitted that in his dispensing of Schedule 8 and/or Schedule 4D medicines (or drugs) for Patients A, D and H he engaged in unsatisfactory professional conduct within s 139B(1)(a) of the National Law.
The issue between the parties is whether the respondent in his dispensing of Schedule 8 and/or Schedule 4D medicines (or drugs) for Patients C, E, G and I engaged in unsatisfactory professional conduct within s 139B(1)(l) of the National Law.
It is appropriate to set out the relevant evidence of the respondent except in respect of the agreed facts and summarise the submissions of the parties before considering this issue.

The relevant evidence of the respondent

In the Matta statement, the respondent gave the following evidence ([21]): "21. At the time of this dispensing, the relevant "Dispensing Practice Guidelines" from the Pharmaceutical Society of Australia were the 2017 Guidelines (attached). At page 14, there is reference to communicating with the prescriber. The document sets out useful advice but does not suggest that the pharmacist can decline the supply, once they have contacted the prescriber. In Dispensing Guidelines for pharmaceutical society of Australia 2019 (attached), on page 16 'communicating with the prescriber', there has been an amendment to advise pharmacists that they can decline supply. This amendment was introduced after the dates in the complaint, and it (is) a very useful guide to pharmacists like myself, who must respect the separate skill of the clinician, but also balance it against our independent duty."

The submissions of the applicant

In the HCCC submissions, the applicant referred to several authorities and made the following submissions: 1. conduct that is 'contrary to some code of professional conduct' is properly characterised as unethical for the purposes of the National Law; 2. conduct has been characterised as improper for the purposes of the National Law when 'viewed objectively, [it] would be regarded by reasonable persons as falling below the standards of conduct to be expected of [the practitioner]'; 3. despite the respondent's non-admission, the Tribunal should find that his dispensing to each of Patients C, E, G and I also amounted to unsatisfactory professional conduct.
In his oral submissions, counsel for the HCCC referred to various authorities including Health Care Complaints Commission v Sathiyapal [2024] NSWCATOD 14 (Sathiyapal) and Health Care Complaints Commission v Khalighimonfared [2022] NSWCATOD 78 (Khalighimonfared). He submitted that the Tribunal in Sathiyapal at [121] held that the practitioner by prescribing a particular drug without holding an authority under s 28 of the Poisons and Therapeutic Goods Act 1966 (NSW) engaged in improper conduct within s 139B(1)(l) of the National Law. He also submitted that Khalighimonfared was difficult to reconcile with a long line of cases and if there was an inconsistency it should not be followed.

The submissions of the respondent

In her oral submissions, counsel for the respondent made the following submissions: 1. while the respondent had a deficit in skill or knowledge, it was artificial to characterise his conduct as improper or unethical; 2. a breach of the Code of Conduct, the Dispensing Guidelines and PTGR did not of itself constitute improper or unethical conduct by the respondent; 3. the conduct in the authorities relied on by the HCCC could be distinguished; 4. the conduct in Khalighimonfared was far more serious than the conduct of the respondent.

Consideration

Having regard to the legal principles in [50] to [55] above, the agreed facts and the unchallenged evidence of Ms Torrens in the Torrens report, we are satisfied that the respondent: 1. in relation to Patient C - dispensed 20 OxyNorm 20 mg capsules and 28 oxycodone SR (slow release) 80 mg tablets, together with 25 Alepam 15 mg tablets (oxazepam, another benzodiazepine), five days after another pharmacist at the CDC Pharmacy had dispensed the same quantities of OxyNorm 20 mg capsules and oxycodone SR 80 mg tablets as well as 28 oxycodone SR 40 mg tablets, and where the supply of slow release tablets for Patient C would be expected to last 14 days at a dose of one tablet twice daily; 2. in relation to Patient E - dispensed 28 oxycodone SR 40 mg and 28 oxycodone SR 80 mg tablets five days after another pharmacist at the CDC Pharmacy had dispensed the same quantity of oxycodone SR 80 mg tablets together with 20 OxyNorm 20 mg capsules and 50 Ranzepam (diazepam) 5 mg tablets to Patient E, where the supply of 28 oxycodone SR tablets would be expected to last 14 days at a dose of one tablet twice daily; 3. in relation to Patient G - dispensed 28 oxycodone SR 20 mg and 28 OxyContin (oxycodone) SR 30 mg tablets one day after another pharmacist at the CDC Pharmacy had dispensed a total of 76 tablets or capsules of different strengths or forms of oxycodone (including slow release tablets); 4. in relation to Patient I - dispensed 25 tablets of Alepam (oxazepam) 30 mg and 50 tablets of Antenex (diazepam) 5 mg - both benzodiazepines - three days after another pharmacist at the CDC Pharmacy had dispensed 25 Alepam 30 mg tablets to Patient I, when Patient l's prescribed dose was one tablet in the evening, where a supply of 25 tablets would be expected to last 25 days.
We do not accept that the respondent had any relevant deficit in knowledge. In the Matta statement, he does not give any evidence of a lack of knowledge at the relevant time of the Code of Conduct, the Dispensing Guidelines or cll 54 and 109 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR). The Dispensing Practice Guidelines of the Pharmaceutical Society of Australia referred to by the respondent in the Matta statement at [21] do not have the status of guidelines approved by the Board under s 39 of the National Law.
In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 (Nguyen) at [47], the Tribunal considered the meaning of "improper conduct" in s 139B(1)(l) of the National Law: "[47] The second basis relied upon to establish unsatisfactory professional conduct, in the sense set out in s 139(1)(l), does not present similar difficulties. Under that provision, "unsatisfactory professional conduct" includes "[a]ny other improper … conduct relating to the practice or purported practice of the practitioner's profession". "Improper conduct" is not defined in the National Law. 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.""
In Sathiyapal at [119]-[121], the Tribunal considered the meaning of s 139B(1)(l) of the National Law: [119] In Health Care Complaints Commission v Liu [2016] NSWCATOD 133, the Tribunal said: 54. Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term "impropriety" in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. [120] In Health Care Complaints Commission v Sare [2018] NSWCATOD 190, the Tribunal said: 31. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession". [121] We adopt these descriptions of 'improper' and 'unethical'. …"
The Tribunal has adopted a similar approach to the meaning of s 139B(1)(l) of the National Law in other decisions: see, for example, Health Care Complaints Commission v Quan [2018] NSWCATOD 111 (Quan) at [55]-[56]; Khalighimonfared at [74]-[75]; Health Care Complaints Commission v Tran [2024] NSWCATOD 1 at [113]-[115].
We have adopted the descriptions of "improper" and "unethical" in s 139B(1)(l) of the National Law set out in Nguyen at [47] and Sathiyapal at [119]-[120].
We are satisfied that each of the following provisions set a standard of proper and ethical conduct relating to the practice of pharmacy: 1. clause 1 of the Dispensing Guidelines, by reason that it directly relates to the safety of the person named in the prescription; 2. clauses 54 and 109 of the PTGR, by reason that they create a mandatory statutory obligation for a pharmacist in the supply of Schedule 4D and Schedule 8 medicines (or drugs) respectively, the contravention is an offence punishable with a maximum penalty of a fine or imprisonment or both.
We are satisfied that the respondent breached clause 1 of the Dispensing Guidelines in dispensing Schedule 8 medicines (or drugs) to Patients C, E and G, and Schedule 4D medicines (or drugs) to Patient I. The respondent has admitted that dispensing Schedule 8 medicines (or drugs) to Patients C, E and G and I, and Schedule 4D medicines (or drugs) to Patient I, was contrary to cll 109 and 54 of the PTGR respectively.
We have not found Khalighimonfared helpful in considering whether the respondent's conduct in relation to Patients C, E, G and I is to be characterised as improper or unethical conduct relating to the practice of pharmacy within s 139B(1)(l) of the National Law. The complaint against the practitioner related to the prescribing of opioids to six patients over a period of approximately two years. The Tribunal at [85] held: "[85] There is no doubt that the conduct of the practitioner, in relation to his treatment of the six patients, was significantly lacking and, by his own admission, sufficient to constitute unsatisfactory professional conduct and professional misconduct. We do not consider, however, that his conduct could properly be found to be 'improper or unethical relating to the practice or purposed practice of medicine'. In our view, his deficiencies in knowledge and practice do not include any element of 'unethical or improper conduct' for the purposes of section 139B. He lacked relevant knowledge and experience and acted in a manner which did not meet the best interests of his patients but, in our assessment, there was no 'unethical or improper element' to his conduct."
Here the circumstances are different. There is no evidence that the respondent lacked knowledge of his obligation under clause 1 of the Dispensing Guidelines to exercise an independent judgment to ensure the medicine is safe and appropriate for the patient, having regard to the dose, frequency and route of administration, duration of treatment, the presence or absence of other medicines, the patient's illness, medication history, and other relevant circumstances. Further, the respondent by supplying the medicines (or drugs) in question contravened the statutory prohibition in cll 109 and 54 of the PTGR. These clauses of the PTGR each created a statutory prohibition which is relevantly similar to the statutory obligation the breach of which was found to be improper conduct in Sathiyapal at [121]. In view of the content of clause 1 of the Dispensing Guidelines and cll 109 and 54 of the PTGR, then, unlike the position in Khalighimonfared, there was both an unethical and improper element to the conduct of the respondent.
Accordingly, we are satisfied that the respondent engaged in improper and unethical conduct relating to the practice of pharmacy with respect to Patients C, E, G and I. It follows that we find that the respondent engaged in unsatisfactory professional conduct within s 139B(1)(l) of the National Law with respect to Patients C, E, G and I.

Issue 2: whether any protective orders should be made against the respondent

Introduction

The applicant and the respondent, while agreeing that protective orders should be made, disagree as to what protective orders are appropriate. The applicant seeks a reprimand, while the respondent seeks a caution.
Before considering this issue, it is appropriate to summarise the evidence of the respondent and the submissions of the parties.

The Matta statement

In the Matta statement, the respondent relevantly gave the following evidence: 1. he takes full responsibility for shortcomings in his practice of pharmacy over the relevant time, and has made every effort to take courses that sharpen up his understanding of when to refuse supply. Over the relevant time, he did understand that he needed to check a script or supply that he felt uncomfortable with, and he regularly did so, but he did not understand that he could refuse supply if a doctor told him that the medication should be dispensed. He does now ([52]); 2. he hopes that the Tribunal will take into account the following matters in understanding the circumstances ([53]): 1. he worked at the CDC Pharmacy between October 2015 and August 2018 on a casual basis every Wednesday and every second Saturday. The workload while he was working at the pharmacy was high (on average 250 scripts per day as a sole pharmacist without any dispensary technicians to assist). Although he brought his concerns about this to the owners at the time, no action was taken by them. When he realised that he could not provide the best service to customers, he left the pharmacy ([54]); 2. he did not have the same issues at the other pharmacy he worked at during that same time period ([55]); 3. most of the dispensing occurred at the beginning of the patient attending the pharmacy and there was little patient history to see clearly patterns of short supply. Hence, there was not firm evidence of diversion or misuse and most times he contacted the prescriber to verify the prescription if it was a concern ([56]); 4. since this complaint, he has taken a firmer position on contacting the prescriber to discuss any concerns regarding prescriptions or requests for early supply, and it is now his practice to refuse to dispense if he thinks the script is inappropriate after speaking with the doctor, or if he is not able to speak to the doctor. If he has any concerns, he will speak to a colleague or call the PRU for reassurance about the appropriate action to be taken. He is also now ensuring that he documents all communication between himself and the prescriber, and also documents key discussions with colleagues or the PRU ([57]); 5. the Council in its investigation into the PRU report considered that he was only a minor share of the CDC Pharmacy issues. Ms Torrens considered that his dispensing was significantly below (the standard reasonably expected of a practitioner of an equivalent level of training or experience) for only three patients (19 prescriptions in total) ([58]); 6. he appreciates that he did not always exercise his independent clinical judgment adequately in considering whether to refuse supply (particularly for later dispensing). He did exercise his clinical judgement on each occasion by assessing who the prescriber was and what was the prescribed dose. He thought he had a good relationship with the doctors at the medical centre next door and he trusted their expertise and integrity. He admits that his exercise of professional judgement was deficient on a number of occasions, based in part on his having placed too much trust and confidence in the competence and expertise of the doctors at the medical centre next door. He also agrees that he should have recorded all his contact with prescribers when he rang to verify prescriptions ([59]); 1. due to the pressures he felt at the CDC Pharmacy, in terms of the workload, failure to provide support for his two days of work per week and lack of professional assistance with his questions regarding dispensing, he left the pharmacy in August 2018 ([60]); 2. since 2016, he has been employed as a pharmacist at Windale Pharmacy and he has continued work there until today. He has had no issues and he thoroughly enjoys the enjoyable and supportive environment ([61]); 3. since the issues were drawn to his attention by the PRU, he has done the following to ensure that this situation is never repeated, and he will never face any other complaint: 1. he has completed extensive education about controlled medication and ethical practices when dispensing; 2. he has focused his learning on improving his knowledge and practice regarding chronic pain management, legislation, addiction and substance abuse and ethics; 3. he has worked extensively with his mentor in improving his knowledge of all areas and has reviewed and reflected on all relevant legislations, codes of conduct and guidelines relevant to his practice; 4. he has attended continuing professional development as required; 5. he concedes that he did not record his conversations with the prescribers as he should have done and he now records all such conversations in the pharmacy dispensary system, having reviewed all the legislation and guidelines that govern this ([62]); 1. he has undergone intensive investigation by the Council which, although was distressing for him, he welcomed ([63]); 2. he has worked now for three years with no conditions on his registration, as a pharmacist in charge, and has had no issues. He has thoroughly enjoyed his work as a pharmacist, ensuring that his learnings following the investigation into the CDC Pharmacy are well implemented in his day-to-day conduct ([64]); 3. he now fully appreciates, following the investigation by the PRU and subsequently by the Council, that he must exercise his own independent clinical judgment about the appropriateness of medication he is being asked to dispense. It is now his practice to refuse to dispense if he considers that prescribing is inappropriate, even after speaking with the prescriber. If the situation requires it, he will also speak with the pharmacist in charge or another pharmacist for reassurance about his concerns in relation to such dispensing ([65]); 4. he now appreciates that he has other resources available to him to ensure appropriate dispensing, such as calling the PRU and also accessing SafeScript and the Doctor Shopping Line ([66]); 5. although painful, the proceedings he has been though, and the additional learning it has prompted him to do, has made him a better pharmacist and he is committed to share his learning with other trainees ([67]).

The oral evidence of the respondent

In his examination in chief, the respondent gave the evidence as to the online course referred to in exhibit R3 and the practice alerts he received referred to in exhibit R4.
In cross-examination, the respondent gave the following evidence: 1. his understanding as to his obligation in dispensing Schedule 8 and Schedule 4D medicines (or drugs); 2. his practice in dispensing Schedule 8 and Schedule 4D medicines (or drugs) including maintaining records; 3. the circumstances in which he worked at the Pharmacy including the hours of work and number of prescriptions dispensed; 4. his current working circumstances; 5. the assistance he received from Mr North.
In re-examination, the respondent gave evidence that he had informed his other employer at Windale Pharmacy of the PRU complaint and offered to leave. He was put back on as a senior pharmacist at Windale Pharmacy as soon as the 31 January 2020 Council decision was set aside. He had also informed his other employer at a pharmacy at Newcastle of these proceedings after their commencement.

The Van reference

In the Van reference, Ms Van, who is a pharmacist, states that she is the proprietor of Windale Pharmacy where the respondent has worked since 2015. He always follows the rules and regulations that are put in place for the pharmacy industry.

The Ghandour reference

In the Ghandour reference, Fr Ghandour states that he is the Parish priest of St. Mary & St. George Coptic Orthodox Church at Newcastle. He has known the respondent for the last six years through church. He has found the respondent to be an honest and trustworthy person.

The North reference

In the North reference, Mr North, who is a pharmacist, states that he has offered guidance to the respondent. From December 2021 to February 2023, there have been 62 email communications in the order of 20 tasks sent by him, 20 replies in completion of tasks, and 20 comments and answers to questions posed by the respondent. He believes that the respondent deserves to be recognised for his motivation and effort he has put into reviewing his practice of pharmacy where gaps in his understanding have been identified.

The Davis reference

In the Davis reference, Mr Davis states that he is the owner and the pharmacist of a pharmacy at Newcastle. The respondent has been working in the pharmacy since September 2022. The respondent understands and works to deliver policies and procedures with a high level of integrity to ensure that the pharmacy maintains regulatory requirements, patient confidentiality, pharmacy confidentiality, and a high level of care to patients.

The submissions of the applicant

In the HCCC submissions, the applicant referred to several authorities and made the following submissions: 1. determining the appropriate protective orders requires balancing the seriousness of the respondent's conduct against other circumstances that serve to reduce the risk he poses to members of the public. Balancing those considerations, the appropriate protective order is a reprimand; 2. on the one hand, although the respondent's conduct is at the lower end of the range of seriousness, it is sufficiently serious as to warrant denunciation and a material protective response for reasons of general deterrence for the following reasons: 1. the respondent's conduct amounting to unsatisfactory professional conduct involved several occasions of inappropriate dispensing of dangerous drugs (or drugs of addiction: Schedule 8 and Schedule 4D medicines) to a range of patients over a not insignificant period of time. While the total number of occasions on which he engaged in inappropriate dispensing was relatively small, that is in the context of him only working at the CDC Pharmacy for one to two days per week. These instances of dispensing were sufficiently excessive that he admits they were contrary to recognised therapeutic standards. The medicines dispensed excessively were of a kind known to be liable to misuse or abuse by the patients themselves or, alternatively, illicit diversion into the community; 2. the observations in Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 (Fearon) at [165], Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 (Elliott) at [54]-[57] and Health Care Complaints Commission v Pickett [2019] NSWCATOD 53 (Pickett) at [61], indicate there is a strong need for denunciation to maintain public confidence in the regulatory regime around Schedule 8 and Schedule 4D medicines (or drugs), and for general deterrence in relation to contraventions of that regulatory regime; 3. to the extent the respondent relied on contact with prescribers to justify his dispensing, that does not mitigate the seriousness of that dispensing having regard to the professional standards described in the Code of Conduct and the Dispensing Guidelines and the matters explained in Elliott at [54]-[57]. His asserted lack of knowledge of the professional standards that did not permit him just to rely on verification by prescribers is not to his credit; 4. similarly, while the long hours worked by the respondent at the CDC Pharmacy and his high workload may go some way to explaining his conduct, they do not justify it: a pharmacist's responsibilities under the Code of Conduct and the Dispensing Guidelines include to manage the risks of fatigue and working unsafe hours, and to ensure they operate under reasonable and manageable workloads consistent with patient safety. He was not inexperienced: he had been working as a pharmacist in Australia for more than six years, and at the CDC Pharmacy for almost two years, when he engaged in the dispensing the subject of the Second Further Amended Complaint; 1. on the other hand, it acknowledges that: 1. the respondent did ultimately choose to leave the CDC Pharmacy of his own volition shortly after the last of those dispensing incidents (in August 2018), including because of the high workload; 2. the incidents in question occurred approximately six years ago; 3. since that time, the respondent has continued practising (apart from a period of approximately two months when his registration was suspended because of these events) without any recorded complaints, including for a period of approximately four years with no conditions on his registration and as a pharmacist in charge; 4. the respondent has acknowledged shortcomings in his previous practice and has taken steps to address those, including further education and (informal) mentoring and working more manageable hours; 5. the respondent has provided positive references from his current employers and from his mentor, who is an experienced pharmacist; 1. in these circumstances, a reprimand is appropriate to mark the seriousness of the respondent's shortfall from professional standards including to uphold public confidence in those standards as they apply to the dispensing of dangerous drugs (or drugs of addiction) such as opioids and benzodiazepines; but no further order is necessary for the protection of the public.
In his oral submissions, counsel for the applicant in substance repeated the HCCC submissions.

The submissions of the respondent

In her oral submissions, counsel for the respondent made the following submissions: 1. the Tribunal should accept the evidence of the respondent in the Matta statement; 2. the conduct of the respondent was relatively isolated and characterised by naivety, but not carelessness or recklessness; 3. relied on Quan where the Tribunal cautioned the practitioner whose conduct was arguably more serious than that of the respondent; 4. the respondent poses no risk to the public; 5. the respondent is supported by Mr North in the North reference, Ms Van in the Van reference, and Mr Davis in the Davis reference.

Consideration

The Tribunal has previously commented on the importance of pharmacists complying with their obligations in relation to drugs of addiction and prescribed restricted substances: 1. in Fearon at [165], the Tribunal relevantly said: "[165] … The effectiveness of the statutory scheme governing the retail supply of prescribed substances and drugs of addiction requires pharmacists to act with integrity and to scrupulously adhere to the statutory requirements governing the supply of those drugs." 1. in Elliott at [54]-[57], the Tribunal relevantly said: "[54] Mr Elliott was dispensing considerable quantities of Sch 8 drugs over a lengthy period, but especially in 2013 and 2014. In our view, in those circumstances any trained pharmacist operating at the general standard required of his or her profession would have become highly attuned and attentive to the potential risks of dispensing such quantities of drugs. In particular, it would be reasonable to expect an experienced pharmacist to be alert to the possibility - perhaps even the probability - that some of the patients were likely to be opioid-dependent and therefore more likely than other patients to simulate symptoms in order to obtain prescribed drugs, to involve themselves in "doctor shopping" or to misuse drugs. [55] Pharmacists are gatekeepers with responsibility, among other things, for dispensing drugs of addiction. To assist them in that serious task, regulations and guidelines are imposed so that the very real risks involved in dispensing drugs of addiction can be managed and mitigated. As the National Law emphasises, the protection of the public is paramount. And some members of the public, such as drug dependent patients, need protection from themselves. Medical practitioners and pharmacists share significant responsibility and are required to exercise their individual clinical judgments to ensure that individual consumers and the public are protected. The more experienced a pharmacist becomes, the better that practitioner's judgment might be expected to be. A pharmacist's failure to be attentive, or sufficiently attentive to the self-evident risks of dispensing Sch 8 drugs, undercuts the protective structure which the regulations and guidelines are intended to erect for the benefit of individual patients and the community as a whole. [56] When compounded by a pharmacist's effective failure to exercise clinical judgment by, for example, not raising appropriate concerns with prescribing doctors (who may themselves be falling short of professional standards), the protective structure is rendered virtually useless. This would reduce a pharmacy almost to a supermarket level where customers can help themselves to whatever they want, no questions asked. ... [57] Although failure to comply with regulations and guidelines might well evidence a fall from appropriate standards, professional standards in the health professions are not to be measured merely by compliance. The ultimate benchmark against which the professional conduct of health practitioners will be measured is the protection of the public. If the relevant conduct of a health professional fails to protect the public, and falls significantly short of the standards required to do so, or poses a real risk to the health and safety of the public, it might well justify suspension or deregistration because the community ought not be exposed to the risk inherent in such failures. …" 1. in Pickett at [61], the Tribunal relevantly said: "[61] A pharmacist occupies a position of trust in our community by virtue of having access to drugs of addiction. They are responsible for the secure storage and safe administration to patients of such medication. …"
In Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 at [47], Stein JA (with Powell JA at [1] and Rolfe AJA at [54] agreeing) explained the use that may be made of character evidence: "[47] Nonetheless, it is plain that the Tribunal is not entitled to take character into account in considering whether a practitioner is guilty of unsatisfactory professional conduct. It is difficult to see, given the admission of careless conduct by the respondent, (which was accepted by the Tribunal) what probative force such evidence would have. It had no relevance to the consequences which might flow from the inadvertent error. It could, of course, be relevant to credit. But the mistake made by the practitioner involved no issue of credibility. The character evidence was, by its very nature, relevant to penalty, should the Tribunal get to that issue."
In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19]-[21] Barrett JA (with Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 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. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA (with Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[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."
No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].
In Health Care Complaints Commission v Lord [2019] NSWCATOD 182 (Lord) at [41]-[42], the Tribunal considered the difference between a caution and a reprimand: "[41] In Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 (Dowla (No 2)), the Tribunal considered at [42] the difference between a caution and a reprimand under s 149A(1)(a) of the National Law and cited with approval the decision of the Victorian Civil and Administrative Tribunal in Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (Coleman), in which the Tribunal explained at [14]: [T]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences. In Peeke v Medical Board of Victoria (unreported, Marks J. 19 January 1994). His Honour commented on a view that had been expressed to the effect that to impose a reprimand was to trivialise a serious lapse in professional standards. His retort was succinct - I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications. [42] As noted by the Tribunal in Dowla (No 2) at [44], a reprimand, if imposed, will appear on the record of a practitioner's registration maintained by the Australian Health Practitioner Regulation Agency (AHPRA): s 225(j). In contrast, the National Law does not require AHPRA to record a caution on practitioner's record."
The Tribunal has held that the concept of general deterrence and the need to uphold public confidence in the standards of the profession in an appropriate case will be adequately addressed if the misconduct of the practitioner is denounced, in the sense of being openly condemned, by reprimanding him: Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [94]-[95]; Healthcare Complaints Commission v Hollenbach [2019] NSWCATOD 118 at [553]; Health Care Complaints Commission v Lu [2023] NSWCATOD 51 at [60].
We accept that the respondent was an honest witness and demonstrated insight as to the nature and extent of his departure from the applicable standards in clause 1 of the Dispensing Guidelines and cll 54 and 109 of the PTGR. We are satisfied that he is genuinely remorseful for his actions and there is little risk that he will ever repeat his conduct.
We have not found Quan helpful in considering the appropriate protective action to be taken against the respondent. The practitioner was a medical practitioner with a high reputation in the medical and general community, and until the proceedings, had an unblemished record as a general practitioner for over thirty years. The complaint against the practitioner relevantly involved the improper prescribing on two days. The Tribunal at [80]-[81] expressed the following conclusion: "[80] We considered the range of orders open to us under s 149A and s 149B of the National Law including issuing a reprimand to the practitioner or imposing a fine on him. On careful reflection, having regard to our assessment of the practitioner, the isolated nature of the conduct, and the fact we are confident the practitioner will not present a risk to patients in the future by like conduct, we conclude the appropriate order is that the practitioner be cautioned rather than reprimanded or fined. [81] That caution, the fact the practitioner was subject of these disciplinary proceedings and our reasons, which will be publicly available on NSW Caselaw, will serve as a deterrent to like conduct and uphold the standards of the profession."
Here the circumstances are different. The conduct of the respondent was not of an isolated nature, and the dispensing of Schedule 8 and/or Schedule 4D medicines occurred over a period of eight months.
Having regard to ss 3, 3A and 4 of the National Law, the legal principles in [88] to [94] above, the evidence of the respondent, and the character evidence on behalf of the respondent, we are satisfied that the appropriate protective order is to reprimand the respondent pursuant to ss 149 and 149A(1)(a) of the National Law. The public nature of a reprimand will be recorded on his practitioner's registration pursuant to s 225(j) of the National Law, which is accessible to the public on the AHPRA's website and this decision, which is accessible to the public on the NSW Caselaw website, will be a sufficient general deterrence and will uphold public confidence in the standards of the profession of pharmacy. There is no need for the imposition of any conditions on the respondent's registration pursuant to ss 149 and 149A(1)(b) of the National Law.

Issue 3: whether the respondent pay the applicant's costs of the proceedings

Introduction

The applicant and the respondent disagree as to what costs orders is appropriate. The applicant seeks an order that the respondent pays the whole of is costs, while the respondent seeks an order that he pays 50% or some lesser percentage of the applicant's costs.
Before considering this issue, it is appropriate to summarise the submissions of the parties.

The submissions of the applicant

In the HCCC submissions, the applicant referred to an authority and submitted that it has conducted itself in a proper manner such that there is no reason why the usual order that costs follow the event should not be made.
In his oral submissions, counsel for the applicant referred to Health Care Complaints Commission v Neale [2024] NSWCATOD 16 (Neale) at [9]-[12], [14].

The submissions of the respondent

In her oral submissions, counsel for the respondent made the following submissions: 1. there was no complaint of the conduct of the applicant in conducting the proceedings; 2. a proportional costs order should be made as was done in Quan.

Consideration

In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46], Emmett JA (with Meagher JA at [1] and Beech-Jones J at [50] agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law: "[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by 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 (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied. [43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). [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. [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. [46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …"
In Neale at [8]-[10], the Tribunal relevantly said: "[8] In its submissions with respect to costs dated 4 August 2023 the Applicant identified the relevant statutory provisions with respect to costs and a number of the principles relevant in that regard. As is not in doubt, costs are awarded to compensate a successful party, rather than punish an unsuccessful party and, as a general rule, follow the event (HCCC v Philipiah [2013] NSWCA 342). [9] The presumption that a successful party is entitled to receive its costs is generally only displaced where there has been some disentitling conduct by the successful party (Oshlack v Richmond River Council (1998) 193 CLR 72 [1998] HCA 11, Health Care Complaints Commission v CSM [2016] NSWCATOD 125, Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154). [10] A respondent bears the onus of establishing a basis for any departure from the general rule (Health Care Complaints Commission v Livermore [2021] NSWCATOD 115). If the successful party is found to have engaged in disentitling conduct the general rule may be departed from."
We have not found Quan helpful in considering the appropriate costs order. The Tribunal at [84] expressed the following conclusion: "[84] While these proceedings had their genesis in the practitioner's conduct, we find there are circumstances why it is appropriate in this case to depart from "the general rule". The practitioner made early admissions of his conduct. Further the HCCC has not been successful in establishing to the requisite standard the complaint of professional misconduct. In these circumstances we find a fair and proportionate response is to order that the practitioner pay 50 per cent of the HCCC's costs as agreed and failing agreement as assessed."
Here the circumstances are different. While the respondent made a substantial number of admissions, the character of part of his conduct and the appropriate protective action against him remained in dispute. The applicant was successful on issues 1 and 2.
Having regard to the principles in Philipiah at [42]-[46] and Neale at [8]-[10], it is appropriate to order the respondent to pay the applicant's costs of the proceedings pursuant to Sch 5D cl 13 of the National Law as agreed or assessed in accordance with the applicable costs legislation.

Orders

We make the following orders: 1. the disclosure of the name of Patients A to I is prohibited; 2. the respondent is reprimanded; 3. the respondent is to pay the applicant's costs of the proceedings as agreed or assessed in accordance with the applicable costs legislation.

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: 19 March 2024

The applicable legal principles as to the proof of facts

In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52].
In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) at 362, Dixon J commented: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 (Neat Holdings) at 171, the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted]
Section 140 of the Evidence Act 1995 (NSW) (Evidence Act) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
In approaching the issue in these proceedings we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]-[87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing).
The second aspect of the rule in Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44 is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [69]-[70] (Brereton JA with Emmett AJA at [135] and Simpson AJA at [137] agreeing).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (46)

Cited By (4)