PROFESSIONS AND TRADES - health practitioner - whether practitioner guilty of unsatisfactory conduct - whether practitioner guilty of professional misconduct
Source
Original judgment source is linked above.
Catchwords
PROFESSIONS AND TRADES - health practitioner - whether practitioner guilty of unsatisfactory conduct - whether practitioner guilty of professional misconduct
Judgment (30 paragraphs)
[1]
Background
Ms Murray commenced as a locum pharmacist at BHH on 11 August 2014. She was engaged on a 10-week contract. On 1 October 2014 she was stood down from her employment following an allegation that she had misappropriated drugs. She resigned from BHH on 22 October 2014.
Ruth Martin commenced in the role of Pharmacy Manager at the hospital on the same day as Ms Murray. The position of Pharmacy Manager had been vacant for four months when Ms Martin took on the role, apart from a six-week period when a locum pharmacist was employed. Ms Martin and Ms Murray "hit the ground running". The only induction training, they received was an explanation of the layout of BHH.
The procedures within the Pharmacy were not well documented when Ms Martin and Ms Murray commenced. According to Ms Martin, sometime after she commenced, she found some notes about procedures made by the locum pharmacist. An experienced pharmacist, nonetheless initially Ms Martin relied heavily on Ms Murray as she had not worked in NSW for some time. While there are many common features, the regulations governing the practice of pharmacy differ between states.
In March 2014, John Carroll was appointed Director of Pharmacy, a position he holds to this day. In the period Ms Murray was employed at BHH (the relevant period), Mr Carroll was employed at BHH on a part-time basis and he divided his time between BHH and the University of Sydney, where he held a teaching appointment. According to Mr Carroll, he had no involvement with the day-to-day management of the Pharmacy. On his account, his role as Pharmacy Director largely involved strategic planning.
The extent of Mr Carroll's involvement with the operation and management of the Pharmacy is illustrated by his limited knowledge of the review conducted by the Pharmaceutical Services Unit (PSU) in 2013. Part of the NSW Ministry of Health, the PSU is responsible for the administration of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA) and the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR). Its role includes investigating alleged illegal, inappropriate or unprofessional supply and administration of medicines and poisons.
Apparently, following its investigations, the PSU prepared a report which contained a number of recommendations including that the Pharmacy conduct a weekly drug audit, that is, a cross-check of the drugs held by the Pharmacy against the records kept by the Pharmacy. Neither party tendered a copy of that report. According to Mr Carroll, he was not given a copy of the report until a few months after starting at BHH, and played no role in implementing its recommendations. He claimed that it was his understanding that the responsibility for implementing the PSU's recommendations lay with the Manager of the Pharmacy. Furthermore, he claimed that he had no knowledge of whether the recommendations were implemented.
[2]
Access to the Pharmacy
Throughout the relevant period, Ms Martin, Ms Murray and four technicians worked at the Pharmacy on a full-time basis. In addition, two interns, Cyd Sorino and Annette Joseph, worked at the Pharmacy for a total of four days per week.
Located in BHH and accessible by a locked door, the Pharmacy was staffed between 8:00 am and 4:10 pm, Monday to Friday. During the relevant period, keys to the Pharmacy were held by Ms Martin, Ms Murray, Mr Carroll, the After Hours Nurse Supervisor and the General Manager of BHH. In addition, throughout the working day, six keys to the Pharmacy were made available to the technicians and intern pharmacists. The keys were required to be returned to a key safe at the end of each day.
As required by the PTGR, the Pharmacy contained a locked safe to store Schedule 8 drugs and a locked cabinet to store Schedule 4D drugs. A Schedule 8 (S8) drug is any drug listed in Schedule 8 of the Poisons List under the PTGA, and is commonly referred to as a "drug of addiction". A Schedule 4D (S4D) drug is a "prescribed restricted substance", namely any substance listed in Appendix 4D of the Poisons List. There is a conflict in the evidence about the number of people who held keys to the safe and cabinet. Ms Martin and Mr Carroll claim there were only two sets of keys to the safe and cabinet: one held by Ms Martin, which she wore on a lanyard attached to her body at all times; the other held by Ms Murray. Ms Murray, on the other hand, claims another set of keys existed which were used by senior BHH staff to access the safe and cabinet in the event the Pharmacy Manager and Pharmacist were unavailable. Ms Murray claims that while the Pharmacy could be accessed by nursing staff outside the Pharmacy's usual opening hours, they did not have access to the drug safe and cabinet.
Conflicting evidence was given about the extent to which Pharmacy technicians and interns had ready access to the S8 and S4D drugs held by the Pharmacy. Ms Murray claims that technicians and interns regularly handled S8 and S4D drugs and pointed out that, contrary to the regulations, the interns delivered S8 to the wards from time to time. In addition, she claims that when suppliers delivered S8 and S4D drugs to the Pharmacy, it was common for there to be a significant delay before they were put away in the drug safe or cabinet. Ms Martin agreed that this was the practice when she commenced at the Pharmacy but claims that a few weeks after commencing she introduced a practice whereby, at the commencement of each shift, the technicians were required to put away any S8 and S4D drugs that had been delivered to the Pharmacy. Ms Sullivan testified that the technicians did not deliver S8 or S4D drugs to the wards or handle them if returned to the Pharmacy. However, she conceded that, at their own initiative, she and intern pharmacist Annette Joseph undertook a stocktake of S8 and S4D drugs around the time Ms Murray was stood down.
[3]
Relationship between Ms Murray and the interns
Ms Murray urges the Tribunal to disregard the evidence given by Ms Soriano, Ms Joseph and Ms Sullivan, asserting that their evidence, especially that given by Ms Joseph, is unreliable. She argues that the Pharmacy staff had an interest in portraying her in a negative light so as to avoid being suspected of drug misappropriation. The Commission disagrees and submits that the evidence given by Ms Murray's former colleagues was believable and reliable.
Before moving to a share house with Ms Soriano and Ms Joseph in early September 2014, Ms Murray lived at the staff quarters at BHH. Ms Soriano had suggested the move, thinking that she and Ms Joseph, who were both studying for their final exams, would benefit from Ms Murray's clinical knowledge. Ms Joseph initially supported the proposal but later regretted that decision.
In a statement prepared at the request of the Hospital's investigators in October 2014, Ms Joseph wrote that, shortly after Ms Murray moved in, she arrived home from work early one afternoon to find Ms Murray had drunk two or three bottles of wine. She admitted being annoyed as she had purchased one of the bottles to drink with her boyfriend to celebrate the anniversary of their relationship. She detailed a number of instances where, on arriving home from work, she discovered Ms Murray drinking heavily and in tears. On her account, "every weekend was a problem".
In a statement prepared in October 2014, Ms Soriano wrote that a few days after Ms Murray moved to the share house, she noticed that Ms Murray appeared to be "having a nervous breakdown" and had drunk a bottle of wine. Ms Soriano recounted two other occasions where she observed Ms Murray drinking alcohol and "being extremely emotional". Ms Soriano claimed that shortly after Ms Murray moved in, she was to give a paper at a conference in Melbourne. Ms Murray disclosed that she had used beta blockers to calm her nerves in a similar situation and suggested Ms Soriano do the same. Ms Soriano wrote that while driving her to the airport, Ms Murray offered to drop in to BHH and use her key to the Pharmacy to pick up some beta blockers. Ms Murray agrees telling Ms Soriano she had used beta blockers but denies offering to pick them up from the hospital.
According to Ms Joseph, matters deteriorated to such an extent that a few weeks after Ms Murray moved in, when she realised she would be alone with Ms Murray over the weekend, as Ms Soriano was travelling to Adelaide, she decided at the last minute to join Ms Soriano. According to Ms Joseph, on that trip she and Ms Soriano discussed "the situation" and she informed Ms Soriano that Ms Murray disclosed that she was using diazepam and had asked her to buy sleeping pills. They resolved to speak to their employer, Outback Pharmacy. (Ms Soriano and Ms Joseph were employed by Outback Pharmacy, a private pharmacy in Broken Hill. Under an arrangement with BHH, the interns each worked two days a week at the hospital Pharmacy and the remainder of the time at Outback Pharmacy.)
On 22 September, Andrew Johnson, one of the owners of Outback Pharmacy, informed Mr Carroll that Ms Soriano and Ms Joseph had raised concerns with him about the management of the Pharmacy. In a meeting with Mr Carroll on 25 September, Ms Joseph disclosed to him that Ms Murray and Ms Martin were acting unprofessionally and raised concerns about the handling of S8 drugs.
Soon after moving to the share house, Ms Murray disclosed to her house mates that, 12 months earlier, she had been assaulted and that she was taking anti-depressants and diazepam. According to Ms Joseph, Ms Murray told her she was likely to be very upset around the anniversary of the assault and asked whether she could take time off work to be with her. (The details of the assault are not relevant to the Complaint. Suffice to say it was of a serious nature and Ms Murray found the memory of the incident to be deeply disturbing. In these reasons we will refer to the assault as the "2013 assault".)
[4]
Did Ms Murray take 90 tablets of diazepam 5mg from BHH on 25 August 2014 without permission and for her own use (Particular 1)?
The Commission alleges that on 25 August 2014 Ms Murray took 90 tablets of diazepam 5mg from BHH without permission and for her own use. diazepam is a S4D drug.
Ms Murray denies taking diazepam from BHH on 25 August 2014 or at any other time. She claims she had no reason to misappropriate diazepam, pointing out that on 28 June 2014 and 28 August 2014 her GP had given her prescriptions for diazepam to treat torticollis, a stiff and painful neck. She agreed that from time to time she was given prescriptions of diazepam to treat her anxiety. She denied having become diazepam tolerant or taking more than the prescribed dosage.
There is no direct evidence that Ms Murray misappropriated diazepam. The Commission relies on circumstantial evidence, primarily the records maintained by BHH to record the movement of S8 and S4D drugs to and from the Pharmacy.
[5]
Record keeping
To put the submissions made by the parties about the allegations of drug misappropriation in context, it is necessary to examine the type of records kept by the Pharmacy to record the distribution of S8 and S4D drugs. In these reasons, we use the word "distribution" to mean the movement of drugs from the Pharmacy to a ward and vice versa and the word "dispensing" to mean the supply of drugs directly to a patient.
Throughout the relevant period the record-keeping systems maintained by BHH included:
[6]
iPharmacy
A software stock control system used to record the movement of drugs to and from the Pharmacy. iPharmacy was accessible via NSW Health's computer system, Citrix. Citrix and iPharmacy were password protected. All Pharmacy staff were allocated unique usernames and passwords to access both Citrix and iPharmacy.
On receipt of a prescription or a requisition from a ward, the following information contained in the requisition/prescription was required to be entered into iPharmacy: the name of the drug, quantity, dosage and the recipient of the drug (ward/patient). That task was generally undertaken by a Pharmacy technician.
Once that information was entered, three documents were generated by iPharmacy: a label for the box/container containing the subject drugs (if the drugs were supplied directly to a patient) and two copies of a tax invoice (a.k.a. receipt). One copy of the tax invoice was kept by the Pharmacy; the other was delivered to the ward/patient with the subject drugs.
Before leaving the Pharmacy, a pharmacist was required to check the subject drugs against the information recorded in iPharmacy, the tax invoice and the corresponding information entered in the Pharmacy register (see below). If satisfied that the recorded information was correct, the pharmacist was required to sign the Pharmacy register and the tax invoice and authorise the entry in iPharmacy.
The drugs were then either collected from the Pharmacy by a registered nurse or delivered to the requisitioning ward. On collection or delivery, the tax invoice was required to be signed by a registered nurse.
iPharmacy was capable of producing a Stock Movement report, containing the following information: the transaction type (generally "distribution" or "goods receipt"); name of recipient (generally ward or patient) or supplier; and balance of stock held by Pharmacy.
[7]
The Pharmacy register
As required by reg 111 of the PTGR, throughout the relevant period the Pharmacy maintained a drug register to record the distribution of S8 drugs. A separate register was kept for S4D drugs. Both registers were kept in the Pharmacy and were accessible to staff. Neither were locked away. For convenience, we will refer to the registers collectively as the "Pharmacy register".
As required by the PTGR, the Pharmacy register was in the form of a bound, paginated journal. A separate page of the register was devoted to each drug for which entries were made. Each page was divided into nine columns and information recorded under these headings was entered by hand. Because some of the headings do not correlate with the ordinary meaning of those terms we set out below the meanings adopted by the Pharmacy staff: "date" (the day the entry was made), "time received or given" (this column was generally blank); the patient's name (the patient to whom the drug was supplied/the ward to which the drug was distributed / the name of the supplier of the drug; "amount received" (the number of tablets, boxes or bottles of the drug distributed by, or returned to the Pharmacy); "balance" (the total number of tablets/boxes/bottles held by the Pharmacy after the subject distribution (calculated by adding or subtracting from the immediately preceding balance entry the number of tablets/boxes received or distributed); "signature of the administering person" (the number on the "narcotic drug order" issued by the requisitioning body (see below); "signature of person supervising, authorising or witnessing administration" (the name of the person who prescribed or requisitioned the drug); "name of prescriber" (the signature of the pharmacist who checked the distribution).
[8]
Ward register
Each ward of BHH was required to maintain a drug register to record the movement of S8 and S4D drugs. Like the Pharmacy register, any entries made in a ward register was required to be made by hand and signed by the person who received or distributed the subject drugs.
[9]
Narcotic Drug order form
To request the Pharmacy to distribute a S8 of S4D drug, nursing staff issued a "narcotic drug order" form (a.k.a. requisition). The form listed the name of the requested drug(s), the requested quantity, and the signature of the person who ordered, supplied and received the drug. Printed on each order form was a number which was required to be recorded in the Pharmacy Register but not the Ward Register.
[10]
Opinions expressed about handwriting
The Commission alleges that many of the entries relating to the alleged misappropriation of drugs are likely to have been made by Ms Murray. A number of witnesses offered opinions about who made those entries. Many of the signatures accompanying entries in the Pharmacy register are illegible, including those where there is no suggestion that the entry was not legitimate. BHH did not maintain a register of the signatures of persons employed at the Pharmacy during the relevant period. We understand that practice has now been rectified.
While not bound by the rules of evidence (s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), this does not exempt us from the obligation to base our findings and ultimate conclusions upon material having "rational probative force": see for example, Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492, 493. Ms Murray and some of her former colleagues proffered opinions about the likely makers of the disputed entries and signatures and the alleged similarities and differences between them and legitimate entries. None are expert in the field of handwriting identification. Their opinions do not assist us in the task of determining the likely authors of the disputed entries. That evidence is of no probative value and therefore we have not taken it into account.
[11]
Audit of drugs
A live issue in these proceedings was the adequacy of the auditing processes employed by the Pharmacy to monitor the distribution of S8 and S4D drugs throughout the relevant period. Ms Murray submits that the auditing processes employed were demonstrably inadequate and this is relevant to the assessment of the evidence.
According to Ms Martin, about three weeks after commencing at BHH, she performed a "complete stocktake of the S8 and S4D cabinets against the books" and found no discrepancy between the stock held by the Pharmacy and the balance recorded in the Pharmacy register.
Each time a S8 or S4D drug was distributed by the Pharmacy, the person entering the information in the Pharmacy register was required to calculate the revised balance and record the number under the column headed "balance" in the Pharmacy register. The maker of that entry was not required to reconcile the revised balance with the stock on hand, which only occurred when a stock check was undertaken. The person undertaking the stock check was required to write under the column "patient name" the word "balance". If they found that the balance recorded in the Pharmacy register corresponded with the stock on hand, they were required to place a tick against the recorded balance. If, on the other hand, they found that the number of drugs on hand did not correspond with the recorded balance, they were required to record that fact in the Pharmacy register. Where this occurred, the practice of Pharmacy staff was to place an asterisk and write the word "error" next to the figure entered in the balance column.
The Pharmacy register reveals that throughout the relevant period stocktakes were conducted on an ad hoc basis. For example, the Pharmacy register records that in respect of diazepam (5 mg), stock checks were undertaken on 20 August, 28 August, 5 September, 2 October and 9 October 2014. Ms Martin stated that stock checks were required to be undertaken on a weekly basis, but because of the demands of work this did not always occur.
There was no evidence of a three-way stock check - a count of the drugs held by the Pharmacy against the recorded balance in the Pharmacy register and iPharmacy - being conducted before or throughout the relevant period. In oral evidence, Mr Carroll agreed with the proposition advanced by one of the practitioner members of the Tribunal that a "true base line" could only be obtained by conducting a three-way stock check.
[12]
History of missing drugs
Ms Murray submits that the evidence of drugs being reported missing from BHH is relevant to the assessment of the Complaint made by the Commission about her. She tendered in these proceedings a document apparently prepared by NSW Health, which lists notifications of lost or stolen drugs in NSW public hospitals for the financial year 2012/2013. It reveals that BHH is one of a number of hospitals where reports were made of lost or stolen drugs. It contains several entries of notifications made for reports of morphine being lost or stolen from BHH.
[13]
The diazepam allegation
On 9 October 2014, in the company of Ms Sullivan and Ms Joseph, Ms Martin conducted a balance check of diazepam and identified a discrepancy between the number of tablets recorded in the Pharmacy register and iPharmacy. In an incident report prepared on the same day, Ms Martin wrote:
Noted discrepancy in S4D count for diazepam 5 mg tablets - 50 tablets missing. 3 entries of stock given to medical ward not reflected in medical ward book -25/8/8/14, 12/9/14, 29/9/14.
The tables below contain a summary of the entries for diazepam (5 mg) contained in the Pharmacy register, iPharmacy and the Medical Ward register for the period, 25 August 2014 to 9 October 2014. They reveal that the Pharmacy register and iPharmacy each contain an entry recording a distribution of diazepam tablets to the Medical Ward dated 25 August 2014. The Pharmacy register records 50 tablets being distributed; iPharmacy records 90 tablets being distributed. There is no corresponding entry in the Medical Ward register.
The number "34843" is recorded in the entry in the Pharmacy register dated 25 August 2014 under the heading "signature of administering person". As noted above, the practice of Pharmacy staff was to enter under that column the order number printed on the narcotic drug order form issued by the requisitioning ward. A copy of drug order form no. 34843 was produced in these proceedings. Dated 25 August 2014, under the words "please supply the following" is written: "diazepam 5 mg x 50 tabs". The form is unsigned and provides no information which might disclose the identity of its maker.
An iPharmacy stock movement report generated on 9 October 2014 records one box of diazepam (90 tablets) being distributed to the Medical Ward on 25 August. The corresponding tax invoice generated by iPharmacy is numbered 4071. It records 90 tablets being supplied by technician, Morgan Morris.
As the tables above reveal, in the period 25 August 2014 to 9 October, in addition to the purported distribution made on 25 August 2014, iPharmacy and the Pharmacy register record two further distributions of diazepam made to the Medical Ward. iPharmacy records the distributions as purportedly made on 11 September and 15 September. The Pharmacy register records the distributions as purportedly made on 13 September and 29 September. The sole entry for that period appearing in the Medical Ward register is dated 12 September 2014 and records 90 tablets received from the Pharmacy.
Ms Murray denies having made the entries in the Pharmacy register or iPharmacy for 25 August. She claims she did not have access to iPharmacy on 25 August as there had been a delay issuing her password and at that stage she relied on the technicians to log her in. She denies that her signature appears against the 25 August entry in the Pharmacy register.
[14]
Consideration
The stocktake undertaken on 9 October 2014 revealed a discrepancy of 50 tablets between the balance recorded in the Pharmacy registry (164) and the iPharmacy stock movement report generated on 9 October 2014 (214). Central to this particular is whether, as alleged by the Commission, at least 90 diazepam tablets were misappropriated on 25 August 2014.
It is uncontroversial that the Medical Ward did not receive any diazepam tablets on 25 August 2014. The most likely explanation for the entries in the Pharmacy register and iPharmacy dated 25 August 2014 is that they were created for the purpose of concealing a misappropriation of diazepam.
iPharmacy and the Pharmacy register each record four diazepam tablets being supplied to two different patients on 8 August 2014. On that day, the balance recorded in iPharmacy and the Pharmacy register corresponded. The recorded balance was 311. That was the last occasion the balance in these two sets of records corresponded, until the balance was recalculated after the stocktake undertaken by Ms Martin, Ms Sullivan and Ms Joseph on 9 October. After the purported distribution to the Medical Ward on 25 August, the Pharmacy register recorded the balance as being 261 (reflecting a purported distribution of 50 tablets); while iPharmacy recorded the balance as being 221 (reflecting a purported distribution of 90 tablets).
It seems more likely than not that some diazepam tablets were misappropriated on 25 August. That is consistent with the reduced (but different) balances recorded both in the Pharmacy register and iPharmacy, the evidence that no distribution was made to the Medical Ward on that date and the false entries made in the Pharmacy register and iPharmacy. The more difficult question is whether the number of misappropriated tablets was 50 as recorded by the Pharmacy register, or 90 as recorded in iPharmacy.
The Pharmacy register contains entries for balance checks dated 28 August and 5 September 2014. On each occasion the balance was recorded as 261. The immediately preceding balance check dated 20 August records a balance of 311. This is consistent with a finding of 50 (not 90) tablets being misappropriated sometime between 20 August and 28 August. In addition, weighing against the contention that 90 tablets were misappropriated on 25 August is the evidence that the 9 October stock count revealed that the balance recorded in the Pharmacy register matched the stock count, which suggests that the entries made in that register more accurately reflect the actual movement of diazepam than those recorded in iPharmacy.
There are a number of unanswered questions surrounding the distribution of diazepam throughout the relevant period. It is possible, if not likely, that the number of misappropriated tablets exceeded 90, reflecting the three purported distributions made to the Medical Ward (recorded in the Pharmacy register: 50 (25 August) + 90 (11 September) + 90 (29 September) = 230). Nonetheless, as formulated, Particular 1 requires us to be satisfied that at least 90 tablets of diazepam were misappropriated on 25 August 2014. The Commission has failed to establish that fact. It follows that Particular 1 of Complaint 1 fails.
[15]
Did Ms Murray take at least 40 tablets of Codapane Forte from BHH without permission for her own use?
The Commission alleges in Particular 2 that on Friday 26 September 2014 Ms Murray took at least 40 Codapane Forte tablets from BHH without permission and for her own use. Ms Murray denies this allegation but admits making a retrospective entry in iPharmacy on Monday 29 September, recording a distribution of 40 Codapane Forte tablets to the Medical Ward: Particular 3(b) of Complaint 1. She denies making that entry for the purpose of hiding an alleged misappropriation of Codapane Forte on 26 September 2014.
Codapane Forte is a prescription medication containing Codeine used for pain relief.
[16]
The photographic evidence
Before examining the records central to this allegation we will consider the issue of the reliability of the photographic evidence relied on by the Commission.
In a statement prepared in October 2014 at the request of BHH investigators, Ms Joseph wrote that on 30 September 2014 she entered Ms Murray's bedroom, opened a drawer which contained, among other things, three unlabelled boxes of Codapane Forte of a brand she understood was stocked by BHH and, using her boyfriend's IPhone, photographed the contents of the drawer. She claimed the reason she entered Ms Murray's room was because she wanted to check whether a T-shirt she had ordered for an upcoming health promotion campaign was the correct size. She claims that the previous occupant of the bedroom, another pharmacy intern had purchased a promotional T-shirt and she thought they might have left it behind when they moved. She wrote that she examined the boxes and noticed that they were unlabelled and not covered with residue of a type a dispensing label would be expected to leave if removed. Later that evening she informed Mr Carroll of the discovery.
We accept, as submitted by Ms Murray, that by late September 2014 Ms Joseph held her in low regard. The evidence reveals that Ms Murray fell short of Ms Joseph's notion of an ideal housemate. Not only did she disapprove of Ms Murray's excessive alcohol consumption but she resented the fact that she had helped herself to a special bottle of wine purchased to share with her boyfriend on the evening of their anniversary. In addition, she considered that Ms Murray was not pulling her weight at work and was critical of her interactions with the medical practitioners working at BHH. In the week before the discovery, she had informed the owners of Outback Pharmacy and Mr Carroll that both Ms Murray and Ms Martin had been acting in an unprofessional manner in respect of their dealings with controlled drugs.
In addition we note that there is nothing on the face of the photograph which reveals the date or time it was taken. Nor does it contain any features or items which link it conclusively to Ms Murray although we note that it contains images of some of the medication Ms Murray admits to taking at the relevant time.
Nonetheless, in our view it is improbable that a person would concoct an elaborate story of the nature outlined by Ms Joseph, with all the potential consequences that might follow, including registration, merely out of irritation with a housemate over a relatively trivial issue. The argument that Ms Joseph's evidence is unreliable really boils down to an allegation that, because of her personal dislike for Ms Murray, she faked evidence against Ms Murray. Viewed in the context of the entirety of the evidence, this, in our view, is a desperately implausible argument. There is no evidence that Ms Joseph misused drugs, or was motivated to use them or steal them for any reason, or that she in fact stole them. On the other hand, irrespective of the evidence given by Ms Joseph, there is compelling evidence that Ms Murray misappropriated scheduled drugs. For all those reasons, while we accept that Ms Joseph came to dislike Ms Murray, we do not accept that she was a witness motivated by that dislike to falsify the evidence she gave.
[17]
Records relating to the alleged misappropriation
Ms Murray was the sole pharmacist working at the Pharmacy on 26 September. In a statement addressed to the Pharmacy Council dated 22 October 2014, she claims this was the first day she had worked as a sole pharmacist at BHH, that she was extremely busy, under a great deal of pressure and somewhat flustered. She wrote that she recalled a duplicate order coming into the Pharmacy which she believed was probably for Codapane Forte issued by the Medical Ward. She claims that because of the demands of that day she probably failed to conduct a proper stock count.
The Pharmacy register contains two separate entries, recording Codapane Forte being distributed to the Medical Ward on 26 September. The first entry, being for one box (20 tablets) of Codapane Forte, corresponds with the sole entry in the Medical Ward register dated 26 September, which records one box of Codapane Forte being received by the Medical Ward from the Pharmacy. In turn, that distribution corresponds with the entry in an iPharmacy stock movement report generated on 1 October 2014 which records one box of Codapane Forte being distributed to the Medical Ward on 26 September 2014. There is no dispute that one box of Codapane Forte was received by the Medical Ward on 26 September
The second entry in the Pharmacy register is the subject of this particular. Dated 26 September 2014, it records two boxes of Codapane Forte being distributed to the Medical Ward. There is no corresponding entry in the Medical Ward register. Ms Murray denies making the entry in the Pharmacy register or the accompanying signature. Under the column "signature of administering person" which, as noted above, is used to record the number on the narcotic drug order issued by the requisitioning body, the number 35316 is entered. Produced in these proceedings, Narcotic Drug order form 35316 is blank.
The iPharmacy stock movement report generated on 1 October 2014 contains two entries for Codapane Forte distributed to the Medical Ward on 29 September 2014. Ms Murray admits making the first of these two entries, which records the distribution of two boxes of Codapane Forte to the Medical Ward. She claims that the purpose of the entry was to record a distribution made to the Medical Ward on 26 September. She admits it was impermissible to make a retrospective entry in iPharmacy but claims that this was a common practice at BHH, especially when the Pharmacy was busy. There is no dispute that the second entry in iPharmacy made on 29 September 2014 relates to a genuine distribution.
In a statement prepared in October 2014 at the request of BHH investigators, technician Jess Sullivan wrote that Ms Murray usually spent the first 30 minutes after arriving at work eating breakfast. However, on 29 September she went straight to the Pharmacy register and asked her how to perform a "computer distribution" to the surgical ward. According to Ms Sullivan, when she made that distribution Ms Murray did not use her usual computer. She claimed that she became suspicious when, later that day, Ms Martin queried the signature appearing in the Pharmacy register against the second 26 September entry. Ms Sullivan then went to the Medical Ward, inspected the ward register and found there was no entry recording a receipt of Codapane Forte on 26 September. In addition, she claimed she examined the Medical Ward's dangerous drug order book and saw that order form number 35316 was blank and had not been removed from the book. She made a photocopy of the blank form.
[18]
Consideration
For the following reasons we are satisfied that Ms Murray misappropriated two boxes of Codapane Forte on 26 September 2014.
First, Ms Murray has failed to give a plausible explanation for her actions in making a retrospective stock entry in iPharmacy on 29 September 2014. Her claim of being overworked and flustered and not conducting a proper drug count on 26 September might explain the discrepancy between the number of Codapane Forte tablets recorded in iPharmacy and the Pharmacy register prior to making the retrospective entry in iPharmacy on 29 September. However, it does not explain what prompted Ms Murray to make that entry.
Second, the inescapable conclusion is that the person who made the second entry in the Pharmacy register dated 26 September did so to create the false impression that two boxes of Codapane Forte were distributed to the Medical Ward on 26 September. Ms Murray's actions in making the retrospective entry in iPharmacy the following working day is consistent with the Commission's hypothesis that she knew of and was the likely maker of the fabricated entry in the Pharmacy register.
Third, while, as Ms Murray points out, she was not the only person with access to the Pharmacy register and Codapane Forte on 26 September, nonetheless she had ready access to both.
Fourth, there is no evidence, as claimed by Ms Murray, of duplicate invoices (drug order forms) being received by the Pharmacy on 26 September. In any event, even if the Pharmacy a duplicate invoice had been received, that would not explain why drug order form number 35316 was entered in the Pharmacy register next to the disputed 26 September entry. Had a duplicate invoice been issued for drug order form no 35314 (the invoice which gave rise to the legitimate 26 September entry in the Pharmacy register), it would be expected that the Pharmacy register and the retrospective iPharmacy entry would record one not two boxes of Codapane Forte being distributed.
Fifth, as Ms Murray points out, while the brand of Codapane Forte which appears in the photograph taken by Ms Joseph was stocked by the Pharmacy at the relevant time, it was commonly stocked by many pharmacies and hospitals. Nonetheless, none of the photographed boxes carried a dispensing label and according to Ms Joseph, did not appear to have any residue which might indicate that an adhesive label had been removed. As Codapane Forte is a prescription medication, the absence of a label is consistent with the drug being taken from pharmacy or hospital stock. The photograph taken by Ms Joseph is corroborative of the Commission's allegation. The fact that the boxes photographed were in Ms Murray's possession indicates they were probably for her own use. There is no indication that they were in her possession for the purpose of supply to others.
We are satisfied that Ms Murray not only took at least 40 tablets of Codapane Forte on 26 September 2014 from BHH without permission but this was for her own use. In addition, we are satisfied that, as alleged by the Commission, that the entry made by Ms Murray in iPharmacy on 29 September was false because (i) Ms Murray had taken the tablets for her own use, and (ii) the entry did not disclose that it was made retrospectively.
It follows that Particulars 2 and 3 are established.
[19]
Is Particular 6 established?
Particular 6 alleges that the statement made by Ms Murray on 22 October 2014 to the Pharmacy Council about the reason why tablets of Codapane Forte could not be accounted for at BHH on 26 September 2014 was false. As noted she told the Council that she probably did not count the stock correctly and was extremely busy. Being satisfied that she had taken the tablets without permission and for her own use, it follows the explanation she gave the Council was false.
Particular 6 is established.
[20]
Did Ms Murray take 20 clonazepam 0.5mg tablets from BHH without permission and for own use on 30 September 2014?
On 2 October 2014, Mr Carroll returned nine clonazepam tablets to the Pharmacy following a clinic held two days earlier at the Wilcannia Health Service, which was serviced by BHH. Mr Carroll and Ms Martin counted the number of clonazepam tablets held by the Pharmacy and discovered a discrepancy: there were 122 tablets in stock, but the balance recorded in the Pharmacy register was 142.
A benzodiazepine, clonazepam is an S4D drug used to treat anxiety and epilepsy, among other things.
iPharmacy and the Pharmacy register each record 30 tablets of clonazepam being supplied to Patient A on her discharge from BHH on 30 September 2014. The corresponding entry in the Pharmacy register is incomplete. No signature appears in the column, "name of prescriber". As noted above the dispensing pharmacist was required to enter their signature under that column. clonazepam was one of four drugs supplied on discharge to Patient A.
On reviewing the iPharmacy records, Ms Martin found that the entry recording the dispensing of clonazepam on 30 September 2014 was recorded as being "under preparation". She explained that those words indicate that the details recorded in iPharmacy had not been verified by the dispensing pharmacist.
The Pharmacy register contains an entry dated 5 September 2014 recording a balance of 163 clonazepam tablets. Signed by Ms Martin, a tick appears next to that entry. As noted above, the practice in the pharmacy was to place a tick next to the recorded balance, when a stock check was conducted and the recorded balance correspond with the stock held by the Pharmacy. The register records six balance checks being conducted during the period 27 June 2014 and 30 September 2014. On each occasion the balance was recorded as 163.
In a letter to the Pharmacy Council dated 21 October 2014, in response to the allegation that she had misappropriated clonazepam, Ms Murray wrote that she had probably inadvertently given Patient 50 not 30 clonazepam tablets. Ms Sullivan entered the details of the clonazepam prescription in the Pharmacy register. Ms Murray counted out the number of clonazepam tablets given to the patient in her presence. Ms Murray claimed that Ms Sullivan replied "50" when she asked for the number of tablets written in the prescription. She wrote that Patient A should be contacted as soon as possible and if it were found that she in fact mistakenly dispensed 50 tablets, she would "self-report to PDL [Pharmaceutical Defence Limited]".
Neither the Commission nor BHH has contacted Patient A. When questioned in these proceedings, Ms Martin stated that she did not know why this enquiry was not made. In evidence, she agreed with the proposition that a patient would not necessarily be aware that the number of drugs supplied on discharge exceeded the prescribed amount, or if they did, may not notify the hospital of this fact.
In a report dated 11 March 2016, prepared at the request of the Commission, Pharmacist, Nerida Croker wrote that it would be common practice for a dispensing technician to undertake the paperwork associated with dispensing a drug and to write the information up in the Pharmacy register. In addition, she stated that it would not be unusual for the dispensing pharmacist, when counting out the drugs to be dispensed, to ask the Pharmacy technician the number of the drugs on the subject prescription. However, she wrote that it would be usual practice for the dispensing pharmacist to double check the strength and quantity of the drugs dispensed against the prescription itself and the dispensing label produced for the container holding. In addition, it would be usual practice to check the entry in the relevant drug register before signing the register. She wrote that the absence of a signature in the Pharmacy register may indicate that Ms Murray failed to check the details entered in the register by Ms Sullivan.
[21]
Consideration
Sometime between 5 September 2014 and 2 October 2014, 20 clonazepam tablets left the Pharmacy which have not been accounted for. The tablets went missing sometime between 5 September and 2 October 2014, most probably on 30 September 2014. Of the possible explanations for their loss, the most likely appear to be, as alleged by the Commission, that they were taken by Ms Murray, or, as she suggests, the tablets were mistakenly dispensed to Patient A.
The Commission contends that the alleged misappropriation is entirely consistent with the evidence of Ms Murray being distressed and in a state of heightened anxiety around the time of the anniversary of the 2013 assault, disclosing to Ms Joseph that she needed to obtain more diazepam (also a benzodiazepine) together with the evidence that she had misappropriated other drugs from the Pharmacy.
The hypothesis advanced by Ms Murray rests on the following assumptions:
1. During the drug count Ms Sullivan told Ms Murray that the prescription was made out for 50 not 30 tablets of clonazepam, or Ms Murray misheard Ms Sullivan.
2. Ms Murray failed to check the number of drugs actually dispensed against the entries made by Ms Sullivan in the Pharmacy register and iPharmacy.
3. Patient A either failed to check the number of drugs dispensed to her on discharge against the issued prescription, or failed to inform the Hospital that the number of tablets dispensed exceeded the prescribed amount.
If, as alleged, Ms Murray misappropriated 20 tablets of clonazepam, it was a fairly feeble attempt to hide that misappropriation. Two people in the Pharmacy observed her dispensing the drugs: Ms Sullivan and Ms Joseph. While the surrounding circumstances give rise to suspicion, in particular the disclosure made by Ms Murray to Ms Joseph of needing additional diazepam, nonetheless the failure to make enquiries of Patient A means that this alternative, a plausible hypothesis, has not been excluded. While a possibility, we are not satisfied on the balance of probabilities that on 30 September 2014, Ms Murray took 20 clonazepam tablets without permission and for her own use. It follows that Particular 4 fails.
[22]
Did Ms Murray take two bottles of morphine BHH for her own use?
Shortly before the end of her shift on 30 September 2014, at the request of Ms Martin, Ms Murray delivered 20 Endone tablets to the Sub-Acute Rehabilitation Unit (SARU). The delivery was made in response to an urgent requisition made by SARU. Ms Murray told Ms Martin that she would make the delivery to SARU on her way home.
After delivering the Endone tablets, Ms Murray collected two, partially used bottles of morphine (oral solution) and signed for their collection in SARU's Dangerous Drug register. A few weeks earlier, staff of SARU had made a request to the Pharmacy to collect the morphine which was apparently no longer needed by the unit.
Ms Murray claims that after collecting the morphine from SARU, she returned to the Pharmacy, poured the morphine down the sink and left for the day. On the other hand, the Commission alleges that Ms Murray took the morphine without permission for her own use. Ms Murray concedes that she failed to record the return of the morphine in the Pharmacy register and failed to record its destruction in the Dangerous Drugs Destruction register (DDD register).
morphine is a "drug of addiction". Its destruction is regulated by the PTGR. A person authorised to be in possession of morphine must not wilfully destroy or allow it to be destroyed: reg 125(1) of the PTGR. However, the director of a pharmacy of a public hospital may destroy any unusable or unwanted morphine but only in the presence of a pharmacist or a person listed in reg 126A(1). A person who destroys morphine in accordance with reg 126A must record the fact of the destruction by an entry in the drug register maintained by the hospital: reg 126A(2). The entry must include the name, registration number and signature of the person who destroyed the drug and the person who witnessed the destruction: reg 126A(2). A pharmacist employed by a public hospital may destroy morphine but only in the presence of a nurse or midwife: reg 127(1). The pharmacist must record the fact of the destruction in the ward register: reg 127(2).
Ms Murray claims that when she returned to the Pharmacy she had expected that Ms Martin would be present as she generally works late. In addition, she claims that on her return she could not find the DDD register. Ms Martin claims that the register was kept in a prominent position in the Pharmacy near the drug cabinet, alongside the Pharmacy register.
On 2 October 2014, RN Hansen, the nurse who handed the morphine to Ms Murray, completed an incident report. She wrote that on 2 October 2014 she overheard colleagues discussing a pharmacist, Lauren, "having taken Panadeine Forte and no longer being employed". Ms Hansen wrote that the name Lauren "sparked a memory" of her shift on 30 September 2014 when a box of Endone was delivered to SARU and two bottles of morphine were collected. She wrote that she found Ms Murray's question "What is the quickest way to get out of the rehab unit as my car is just out there on the street?" to be "odd thinking". She reported that in answer to her question "Aren't you going to take the morphine back to pharmacy?", Ms Murray replied, "I will take it home and return it tomorrow". RN Hansen showed her out through the staff room and to the Thomas Street exit of SARU.
In a letter to the Council dated 22 October 2014 in response to the allegation that she had misappropriated morphine, Ms Murray wrote that she left via the SARU exit and then proceeded to return the morphine to the Pharmacy. She wrote that this was the most direct route between SARU and the Pharmacy and invited the Council to review the CCTV footage of her re-entering the main entrance to the Hospital. She wrote that on returning to the Pharmacy she found Ms Martin was not there as she had anticipated and, against "my better judgement", she emptied the contents of the morphine bottles down the sink and disposed of the empty bottles in a bin. She wrote that she now understands that this is not best practice due to "EPA [Environment Protection Authority] and pollution". She wrote that when she informed Ms Martin the following morning that she had destroyed the morphine, she appeared "content with the procedure".
In a statement dated 23 October 2014, Ms Martin wrote that Ms Murray's claim that she had informed her of destroying the morphine, was "completely untrue". She wrote that it is "never the case that a pharmacist destroys S8 drugs on their own. When drugs are destroyed in the Pharmacy, another Pharmacist has to be present". She wrote that it was not until 2 or 3 October 2014 that she learnt that morphine had been misappropriated from BHH. In these proceedings, when questioned about her claim of informing Ms Martin on 1 October, Ms Murray replied it was quite chaotic that day, being the day she was stood down from her position. She said she recalled telling Ms Martin as she was walking out of the room and Ms Martin nodding "yes, yes". She alleged "even at the best of times" Ms Martin's memory was not very good.
In a reply to the Complaint filed with NCAT on 14 July 2017, Ms Murray wrote "I do not recall and therefore cannot admit to the allegation that I misappropriated two bottles of morphine for my own personal use without permission". In cross-examination she stated that she had used this language on advice from lawyers.
In cross-examination Ms Murray stated that after leaving SARU but before returning to the Pharmacy she went outside for a few minutes to have a cigarette. She stated that she understood from her undergraduate studies that in NSW morphine must be destroyed by a police officer but she was unsure whether that remained the requirement when she was at BHH. When asked why she did not leave the morphine at SARU and collect it the following day, Ms Murray replied that she felt pressured to collect it, pointing out that for a number of weeks SARU staff had been requesting it to be collected. While she conceded that there was no urgency to take the morphine, she claimed that she felt under pressure from RN Hansen, who she described as "difficult": "When a nurse like Tracey Hansen asks you to do something you do it". She said she decided not to leave the morphine in the Pharmacy overnight as nursing staff could access the Pharmacy. When asked why she did not store the morphine in the drug safe, she said to do so would risk contaminating the other drugs in the safe. She conceded, however, that contamination would not have occurred had the morphine been placed in a bag before being stored in the safe.
In answer to a question from the Tribunal, Ms Murray agreed with the proposition that she understood that it was necessary that the destruction of morphine must be witnessed by another person.
Ms Murray claimed that despite requesting Ms Martin and Mr Carroll to provide information about the Hospital's procedures and policies relating to the destruction of drugs of addiction, she had not been provided with any information. She claimed she was unaware of NSW Health's Policy Directive, Medication Handling in NSW Public Health Facilities, 27 November 2013.
Ms Murray claimed that it was her understanding that the collected morphine had exceeded its three-month use by date. She claimed that prior to collecting the morphine, Ms Martin informed her that it needed to be destroyed but she now could not recall whether that discussion took place on or before 30 October. Ms Martin denied that claim and stated that it was her understanding that there was no need for the collected morphine to be destroyed.
She said in hindsight the decision to destroy the morphine without a witness was a "very poor decision" and one she deeply regrets.
[23]
Consideration
There is no direct evidence that Ms Murray took the morphine from the hospital without permission and for her own use. Nor is there any evidence to contradict Ms Murray's claim of never having used morphine. Each allegation rests on circumstantial evidence and requires us to examine all of the evidence and then decide whether it supports the inference being drawn that Ms Murray took the morphine from the hospital without permission for her own use.
The CCTV footage tendered in these proceedings neither proves nor disproves Ms Murray's claim of returning to the Pharmacy via the main entrance to the Hospital after collecting the morphine. While it shows Ms Martin leaving by the SARU exit, it does not contain footage of the main entrance where Ms Murray claims she entered about five minutes later.
Nor is the fact that she exited SARU via the Thomas Street exit, determinative. The route Ms Murray claims to have taken when returning the morphine to the Pharmacy is not significantly longer than the internal route she took when she delivered the Endone to the SARU.
In our view, the following evidence, taken together, supports the inference that Ms Murray took the morphine from the hospital without permission. First, it is consistent with the statement made by Ms Hansen, a few days after the morphine was collected, that Ms Murray told her she intended to take the morphine home and return it to the Pharmacy the next day. RN Hansen had no apparent reason to fabricate her account. Before she collected the morphine on 30 September, RN Hansen had had no dealings with Ms Murray. When she made the statement she was unaware that it was alleged that morphine had been misappropriated.
Second, the CCTV footage reveals Ms Murray leaving the SARU entrance onto Thomas St with car keys in hand. While not conclusive, nonetheless it is consistent with RN Hansen's claim that Ms Murray told her she intended to take the morphine home and return it the following day. Notably, the first time Ms Murray volunteered the information that, before returning to the Pharmacy she went to her car to have a cigarette, was in cross-examination in these proceedings.
Third, by her own admission, when she collected the morphine from SARU Ms Murray was aware that it was impermissible for a pharmacist to destroy a drug of addiction without another person being present. Even if unclear about the precise rules that applied in NSW, she nonetheless was aware of that key requirement.
Fourth, Ms Murray's claim that when she informed Ms Martin that she had poured morphine down the sink without a witness she "appeared content with the procedure is inherently implausible. Further, given the succession of events that took place on the morning of 1 October - the cancelled 07:45 staff meeting, followed by a meeting between Ms Murray, Mr Carroll and Nurse Manager, Paul Kaye - it is unlikely that Ms Murray had the opportunity to make the claimed disclosure to Ms Martin.
Fifth, destroying the morphine was not the only option available to Ms Murray. Even if it is accepted that she felt intimidated by RN Hansen and therefore compelled to remove the morphine from SARU, it was open to her to simply put the morphine in the drug safe and deal with its disposal (or continued storage) the following day.
Sixth, it is implausible that Ms Murray could not locate the DDD register. She has not provided an explanation for failing to record the return in the Pharmacy register.
In our view, these facts taken together permit the inference to be drawn that Ms Murray did not destroy the morphine at the Pharmacy as she claimed. In reaching that conclusion, we have taken into account the absence of any evidence to support a finding that Ms Murray was using morphine at the relevant time.
[24]
Did Ms Murray take the morphine for her own use?
There is no direct evidence of Ms Murray taking or supplying morphine before, during or after the relevant period. While there are reports of Ms Murray being extremely distressed, intoxicated and possibly misusing prescription medication while at BHH, there is no evidence to suggest she was using morphine. Further, as Ms Murray points out there was no evidence that she was functionally impaired while working at BHH. While Ms Martin had some criticisms of aspects of her performance, primarily tardiness in completing paper work, in her opinion Ms Murray was a capable pharmacist.
While there is no direct evidence that Ms Murray was or had used morphine equally, apart from her self-report, there is no reliable supporting evidence of her claim that she had never used opiates. The medical reports on which she relies (see for example, the report of Dr J King, 17 August 2017), which records no history of opiate use merely records the history given by Ms Murray. (While there is no evidence of Ms Murray using morphine, there is nonetheless evidence of opiate use, namely Codapane Forte, albeit a comparatively weak opiate.) Nor is the contention that it would have been apparent to her colleagues had she been using morphine determinative. It is a matter of common knowledge that not all morphine users are functionally impaired. Whether they are or appear to be, depends upon various factors, including the amount consumed.
To establish this particular, the Commission does not need to establish that that Ms Murray actually used the misappropriated morphine, only that the reason for taking it was her own use. Even if it is accepted, as claimed by Ms Murray, that she has no history of opiate use it is plausible that on the anniversary of the 2013 assault she spontaneously took the morphine from the Hospital to experiment or self-medicate. Equally, it is possible, as reported to RN Hansen, she had intended to return the morphine to the Pharmacy the following day but panicked and destroyed the drug. The available material puts it no higher than a possibility that Ms Murray took the morphine for her own use.
[25]
Summary
Particular 5(a) is established. Particular 5(b) fails.
[26]
Does the conduct found proven amount to "unsatisfactory professional conduct"?
The Commission contends that the conduct found proven amounts to unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law, which state:
(1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-
(a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the Practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
...
(l) Any other improper or unethical conduct relating to the Practice or purported practice of the practitioner's profession.
[27]
Does the proven conduct amount to improper or unethical conduct relating to the Practice of pharmacy?
In summary, the conduct found proven or admitted is:
1. The misappropriation of Codapane Forte from the Hospital by Ms Murray for her own use (Particular 2).
2. The making of a false record in iPharmacy on 29 September by Ms Murray to conceal that that she had taken Codapane Forte for her own use without permission (Particular 3(a)).
3. The failure to indicate that that entry was made retrospectively (Particular 3(b)).
4. The misappropriation of morphine from the Hospital by Ms Murray (Particular 5(a)).
5. The making of a false statement to the Pharmacy Council about the inability to account for 40 tablets of Codapane Forte (Particular 6).
The word "improper" and "unethical" are not defined by the National Law. Both are ordinary English words. The Macquarie Dictionary offers a number of definitions of both words which include:
Improper
2. not in accordance with propriety of behaviour, manners, etc: improper conduct.
Unethical
1. contrary to moral precept; immoral.
2. in contravention of some code of professional conduct.
The meaning of these words were considered in Office of Local Government v Toma [2015] NSWCATOD 21 (Dr J Renwick SC presiding). After quoting from the discussion of the term "impropriety" in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote:
Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both.
That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law (Boland DCJ presiding) in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53].
Adopting that interpretation the question posed is whether, viewed objectively, the conduct found proven would be regarded by reasonable persons as falling below the standards of conduct to be expected of pharmacists in that it has a tendency to bring into disrepute the profession of Pharmacy.
Each proven particular relates to the practice of pharmacy. Each involves conduct that was dishonest in nature, either misappropriation or the concealment of the fact of the misappropriation. Each involves conduct that was deliberate. We are satisfied that each proven particular would be regarded by reasonable persons as falling below the standards of conduct to be expected of pharmacists. That conduct amounts to unsatisfactory conduct within the meaning of s 139B(1)(l) of the National Law. Given this conclusion it is not necessary to determine whether that conduct also amounts to unsatisfactory conduct within the meaning of 139B(1)(a) of the National Law.
[28]
Does the conduct found to constitute unsatisfactory conduct also constitute professional misconduct?
Complaint 2 alleges that Ms Murray is guilty of professional misconduct under s 139E of the National Law.
"Professional misconduct" is defined by s 139E of the National Law to mean:
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, "professional misconduct" of a registered health practitioner means-
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Whether conduct found to amount to unprofessional misconduct can be characterised as being of a "sufficiently serious nature" to justify an order for suspension or cancellation requires the Tribunal to make an evaluative judgement: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [20]. Referring to the definition of professional misconduct contained in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] Basten JA emphasised that the definition is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made.
In evaluating whether the subject conduct is of a sufficiently serious nature to justify suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the conduct, any mitigating factors, and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99].
The seriousness of unsatisfactory professional conduct is to be measured by the extent to which it departs from proper standards. It is not to be measured by reference to worst cases. That would risk the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
The instances of conduct we found to constitute unsatisfactory professional conduct occurred over a relatively short period: 26 September 2014 to 22 October 2014. We find the misappropriation of morphine, the making of a false entry in iPharmacy to conceal the misappropriation of Codapane Forte and the making of a false statement to the Pharmacy Council are objectively serious and alone and cumulatively are of a sufficiently serious nature to justify the suspension of Ms Murray's registration. While the other instances of unsatisfactory professional conduct are also objectively serious, in our view they are not sufficiently serious to justify the suspension or cancellation of Ms Murray's registration even when considered together with the conduct found by us to amount to professional misconduct.
Complaint 2 is established.
[29]
Is Ms Murray a suitable person to hold registration as a pharmacist?
In Complaint 3 the Commission alleges that Ms Murray is not a suitable person to hold registration in the practice of pharmacy. In support, the Commission relies on Complaints 1, 2, 3(a), 4, 5 and 6, individually and cumulatively.
The hearing was conducted in two stages. It was proposed that in the first stage the threshold question of whether some or all of the Complaint is established would be addressed. The second would deal with what if any protective orders should be made.
Ms Murray was self-represented in these proceedings. In her written submissions she did not address whether Complaint 3 is established.
Self-evidently, the issue of whether a practitioner is not a suitable person to hold registration is likely to be critical to the question of what, if any, protective orders should be made. That issue requires consideration of whether the practitioner is currently not a suitable person to hold registration. Ms Murray foreshadowed that she might rely on current medical evidence in the second stage of the proceedings. That evidence might be relevant to her current suitability to practice. In our view, a practical injustice might arise if that question is determined before Ms Murray has had an opportunity to consider our reasons for decision, make further submissions and, if relevant, provide further evidence. Accordingly, we have decided to defer the determination of Complaint 3 until the second stage of the proceedings.
[30]
Annexure A
The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law")
HEREBY COMPLAINS THAT
Miss Lauren Murray, ("the practitioner") of [xxx] being a pharmacist registered under the National Law,
COMPLAINT ONE
is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (I) of the National Law in that the practitioner has:
i. engaged in conduct that demonstrates the knowledge, skill or judgment
possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
ii. engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.
BACKGROUND TO COMPLAINT ONE
The practitioner was first registered as a pharmacist on 15 January 2008. The practitioner worked at Broken Hill Hospital ("BHH") between 11 August 2014 and 22 October 2014.
PARTICULARS OF COMPLAINT ONE
On 25 August 2014 the practitioner took 90 tablets of diazepam 5mg from BHH:
without permission;
for her own use.
On 26 September 2014 the practitioner took at least 40 Codapane Forte tabletsfrom BHH:
without permission;
for her own use.
On 29 September 20164 the practitioner entered an order dated 26 September20164 for 40 tablets of Codapane Forte tablets, purporting to be for supply to theMedical Ward into BHH's dispensing software iPharmacy, which was false in that:
the practitioner had taken the tablets without permission for her own use;
the entry failed to indicate that it was being made retrospectively.
On 30 September 2014 the practitioner took 20 clonazepam 0.5mg tablets fromBHH:
without permission;
for her own use.
On 30 September 2014 the practitioner took two bottles of morphine 1 mg/mLfrom BHH:
without permission;
for her own use.
On 22 October 2014 the practitioner made a statement to the Pharmacy Councilof New South Wales as to the reason why 40 tablets of Codapane Forte could notbe accounted for at BHH on 26 September 2014:
(a) being that the practitioner:
(i) "probably did not count the stock correctly'; (ii) was "extremely busy";
(b) which was false in that the reason the 40 tablets could not be accounted forwas because she had taken them without permission and for her own use.
COMPLAINT TWO
is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i. engaged in unsatisfactory professional conduct of a sufficiently serious nature
to justify suspension or cancellation of the practitioner's registration, or
ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration
BACKGROUND TO COMPLAINT TWO
The background for Complaint One is repeated and relied upon.
PARTICULARS OF COMPLAINT TWO
Complaint One Particulars 1, 2, 3(a), 4, 5, 6 and 7 are repeated and relied upon individually.
Complaint One and the particulars thereof are repeated and relied upon cumulatively.
COMPLAINT THREE
Is not a suitable person to hold registration as a pharmacist within the meaning of section 144 of the National Law.
BACKGROUND TO COMPLAINT THREE
The background for Complaint One is repeated and relied upon.
PARTICULARS TO COMPLAINT THREE
Complaint One Particulars 1, 2, 3(a), 4, 5, and 7 are repeated and relied upon individually.
Complaint One Particulars 1, 2, 3(a), 4, 5, and 6 7 are repeated and relied upon cumulatively.
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: 31 July 2018
995] HCA 1
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Watson and Godfrey v Cameron [1928] HCA 4; (1928) 40 CLR 446
Zistis v Zistis [2018] NSWSC 722
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Lauren Murray (Respondent)
Representation: Applicant
Counsel:
L Fernandez
Can NCAT determine the complaint?
The conduct the subject of the Complaint occurred in NSW. However, for the past few years Ms Murray has resided in Western Australia. Apparently she has no plans to return to NSW. In these proceedings, the Commission raised the issue of whether, Ms Murray's residency in Western Australia deprived NCAT of the power to hear and determine the Complaint, as a consequence of the NSW Court of Appeal's decision in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3. The Commission submitted the Court of Appeal's decision had no application asserting that the determination of the Complaint involved the exercise of administrative not judicial power.
Since reserving our decision, the High Court handed down its decision dismissing an appeal brought against the decision of the NSW Court of Appeal: Burns v Corbett [2018] HCA 15. The High Court held that the Commonwealth of Australia Constitution Act precludes the Parliament of a State from conferring jurisdiction in respect of a matter between residents of different States within s 75(iv) of the Constitution on a Tribunal which is not one of the "courts of the States" referred to in s 77. In the proceedings before both the High Court and the Court of Appeal, it was agreed by the parties that NCAT was not a court of a state. That issue was considered by an Appeal Panel of NCAT, which determined that NCAT is a court of a state within the meaning of Ch III of the Constitution and s 39 of the Judiciary Act 1903 (Cth): Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [95]. In a subsequent decision, the NSW Supreme Court reached a different conclusion: Zistis v Zistis [2018] NSWSC 722. Johnson v Dibbin is under appeal to the NSW Court of Appeal.
The practical effect of Burns v Corbett is that if the power being exercised by the Tribunal is judicial rather than administrative in nature, then, by the operation of Ch III of the Constitution, the Tribunal will be exercising, or purporting to exercise, federal judicial power and cannot do so unless it is a "court of a State".
For current purposes we will assume but not decide that NCAT is not a court of a state for Ch III purposes. Accordingly, two issues must be decided. First, whether the matter required to be determined as a consequence of the referral of the Complaint by the Commission under s 145C(1) of the National Law by way of an application made under s 40 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), is a matter "between States, or between residents of different States, or between a State and a resident of another State": s 75(iv). Second, if the answer to that question is "yes" whether the power being exercised by the Tribunal is judicial rather than administrative in nature.
Is the Complaint a matter between States, between residents of different States, or between a State and a resident of another State?
Plainly the determination of the Complaint does not require us to decide a matter "between States". Nor does it require us to determine a matter "between residents of different States" because the Commission is not "a resident". Only natural persons may be "residents" for Ch III purposes: Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe [1922] HCA 50; (1922) 31 CLR 290 at 307, 331-337; Watson and Godfrey v Cameron [1928] HCA 4; (1928) 40 CLR 446 at 448; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR; [2003] HCA 47 at [109]-[110]; cf at [37]. The more difficult question is whether the Commission is "a State" for the purposes of s 75(iv) of the Constitution.
The expression "a State" extends to agencies and instrumentalities of the relevant State: Deputy Federal Commissioner of Taxation v State Bank of NSW [1992] HCA 6; (1992) 174 CLR 219. The High Court in Deputy Federal Commissioner of Taxation v State Bank of NSW at [26], considered whether the State Bank of NSW was "a State" for Ch III purposes and posed the following question:
[W]hether the State Bank is discharging governmental functions for the State or, to put it another way, is the State carrying on banking through its statutory corporation, the State Bank.
Writing extra-curially, Leeming JA stated that the application of this test involves two inquiries: the nature of the body's functions, and the role of a minister in the performance of a body's functions and the role of its board: Mark Leeming, Authority to decide - the Law of Jurisdiction in Australia (The Federation Press, 2012) p 270.
The Commission is a statutory body representing the Crown: s 75 of the Health Care Complaints Act 1993 (NSW). As such the Commission has the status, privileges and immunities of the Crown: s 13A(1)(b) of the Interpretation Act 1987 (NSW).
The functions of the Commission include to receive and deal under the National Law with complaints relating to the professional conduct of health practitioners, to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals and to monitor, identify and advise the Minister on trends in complaints: s 80 of the Health Care Complaints Act.
Section 81 of the Health Care Complaints Act states:
The Commission is subject to the control and direction of the Minister, except in respect of the following:
• the assessment of a complaint
• the investigation of a complaint
• the prosecution of disciplinary action against a person
• the terms of any recommendation of the Commission
• the contents of a report of the Commission, including the annual report.
In determining a complaint brought under the National Law is NCAT exercising administrative or judicial power?
To answer this question it is necessary to examine the structure of the National Law. The National Law provides for the regulation of health practitioners by the Australian Health Practitioner Regulation Agency (AHPRA). The National Law provides for the establishment of AHPRA, the registration of health practitioners, and the setting of standards and disciplinary processes.
In NSW a complaint may be made to the Commission that a health practitioner has been guilty of unsatisfactory professional conduct or professional misconduct: ss 144C, 144(b). The Commission may refer the complaint to the Tribunal: s 145C(1).
Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint of unsatisfactory professional conduct is found proven. They include the power to caution, reprimand and counsel a practitioner and to impose conditions on the practitioner's registration. Where the Tribunal finds a practitioner guilty of professional misconduct, it may suspend or cancel the practitioner's registration.
Established by s 7 of the NCAT Act, NCAT has various jurisdictions, including a general jurisdiction. The determination of a complaint referred under the National Law is an exercise of the Tribunal's general jurisdiction: s 29 of the NCAT Act
The question to be determined is whether the power to determine a complaint referred under the National Law, can be characterised as administrative or judicial. In Johnson v Dibbin the Appeal Panel noted at [50], that "when considering the nature of judicial power and how it is to be distinguished from executive or administrative power … it has proved difficult, if not impossible, to frame an exclusive and exhaustive definition of judicial power". Identifying the line between administrative and judicial power is a difficult task, in part because there are features common to both. In Precision Data Holdings Ltd v Wills [1991] HCA 58; (1991) 173 CLR 167, the High Court commented at [189]:
Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power.
The power exercised by the Tribunal in determining a complaint referred under the National Law, shares some of the accepted criteria of a judicial power, such as the delivery of a binding and authoritative decision and the requirement to observe principles of open justice principles and the rules of procedural fairness. However, in our view the power is more aptly characterised as administrative. In Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 234 ALR 618; 81 ALJR 1155, the High Court held that the exercise of the power to cancel or suspend the registration of a person as a liquidator by the Companies Auditors and Liquidators Disciplinary Board is in the nature of administrative not judicial power. While Albarran is not authority for the proposition that the power exercised by a body in occupational disciplinary proceedings in all cases will be administrative in nature, it is nonetheless supportive of the proposition that the power to determine a complaint brought under the National Law is administrative in nature. (See also Health Care Complaints Commission v Hayles [2018] NSWCATOD 37 [74], [75]).
The Complaint
The complaint made by the Commission about Ms Murray is set out in Annexure A of these reasons.
Except where conceded in writing, we must determine whether each particular is established on the balance of probabilities: s 165H of the National Law. Ms Murray admits sub-particular 3(b) of Complaint 1: making a retrospective entry for the supply of Codapane Forte. She denies the balance of the Complaint.
The key issues we must decide are:
First, in relation to Complaint 1:
1. Whether Ms Murray took 90 tablets of diazepam 5mg from BHH without permission on 25 August 2014 (Particular 1(a)).
2. If so, whether she took it for her own use (Particular 1(b)).
3. Whether Ms Murray took at least 40 Codapane Forte tablets from BHH without permission on 26 September 2014 (Particular 2(a)).
4. If so, whether she took those tablets for her own use (Particular 2(b)).
5. Whether, the entry made by Ms Murray into Codapane Forte tablets on 29 September 2014, purporting to be for a supply of Codapane Forte tablets to the Medical Ward, was false in that she had taken the tablets without permission and for her own use (Particular 3(a)).
6. Whether on 30 September 2014 Ms Murray took 20 clonazepam tablets from BHH without permission (Particular 4(a)).
7. If so, whether Ms Murray took them for her own use (Particular 4(b)).
8. Whether on 30 September 2014 Ms Murray took two bottles of morphine from BHH without permission (Particular 5(a)).
9. If so, whether she took it for her own use (Particular 5(b)).
10. Whether on 22 October 2014 Ms Murray made a false statement to the Pharmacy Council of New South Wales as to the reason 40 tablets of Codapane Forte could not be accounted for at BHH on 26 September 2014 (Particular 6).
Second, whether each admitted or proven particular, individually or when taken together, amounts to "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law; and
Third, if so, whether one or more of the particulars found to amount to "unsatisfactory professional conduct", considered individually or together, amounts to "professional misconduct" within the meaning of s 139E of the National Law.
Fourth, whether Ms Murray is "not a suitable person" to hold registration as a pharmacist.
The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more they will affect the consideration.
The Committee on the Health Care Complaints Commission, a joint committee of members of Parliament is required to review the exercise by the Commission of the Commission's functions under Health Care Complaints Act or any other Act: s 65.
The functions of the Commission are exercisable by the Commissioner: s 75(3). The Minister may refer a proposal to appoint a person as the Commissioner of the Commission to the Joint Committee. The Committee is empowered to veto the proposed appointment: s 66.
The statutory framework in which the Commission operates indicates that the Commission is subject to the control and direction of the Minister, except in relation to the assessment, investigation and prosecution of individual complaints. The Commissioner is appointed by the Minister subject to the power of veto held by the Joint Committee. These features lead us to the conclusion that the Commission is discharging governmental functions, namely the regulation of health practitioners, for the State. It follows that the Commission is "a State" for Ch III purposes.
The decision of the Victorian Supreme Court in Medical Board of Australia v Kemp [2018] VSCA 168, is consistent with that analysis. The Court was required to decide whether disciplinary proceedings brought against a doctor in the Victorian Civil and Administrative Tribunal were "civil proceedings". While the Court did not decide whether VCAT was exercising administrative or judicial power its analysis of the nature of the proceedings before VCAT, provides useful guidance about the nature of the power exercised by NCAT in disciplinary proceedings under the National Law. The Court concluded at [166]:
[I]n hearing and determining a matter referred to it by the [Medical Board of Victoria], VCAT is not involved in a process that represents a curial adjudication of private rights. That is because:
(a) the VCAT proceeding is regulatory in nature, and serves a public purpose by enforcing standards applicable to health practitioners;
(b) the proceeding is not a dispute inter partes. VCAT is hearing a matter referred to it for determination by a regulatory body that performs a public function and has no private interest in the outcome of the proceeding;
(c) relatedly, the outcome of the proceeding is not determinative of private rights. The right to practise as a registered health practitioner, and the conditions on which that may be allowed to occur, involve the regulation of a public licence rather than the conferral of a private right; and
(d) the rules of evidence, and the practices and procedures that apply in courts, have no application (except to the extent that they are adopted by VCAT).
We conclude that the power by the Tribunal in these proceedings is administrative not judicial in nature. It follows that we have power to hear and determine the Complaint.
The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1].