Health Care Complaints Commission v Nguyen

NCAT Occupational|2021-10-26

Background

The practitioner was first registered as a pharmacist in NSW in March 1996, having qualified with a Bachelor of Pharmacy from the University of Sydney in 1995. During the period 2017-2019 she was the sole proprietor of Priceline Pharmacy at Gordon NSW (the Gordon pharmacy). She has previously been the sole proprietor of Savemore Discount Pharmacy, Marrickville (Savemore pharmacy), and Bardwell Medical Centre Pharmacy, Castle Hill.
The Pharmacy Council of New South Wales (the Council) imposed conditions on the practitioner's registration on 9 October 2015. Those conditions were that she must not allow the sale or supply of any scheduled item in quantities greater than two items per person in any pharmacy in which she has a pecuniary interest, and that she authorise the Council to access electronic wholesale records for each pharmacy in which she has a pecuniary interest.
On 23 June 2017, following an inquiry, the Council made a finding of unsatisfactory professional conduct and reprimanded the practitioner, and imposed conditions on her registration. Those conditions included a condition that she provide access for audits at each pharmacy in which she has a financial interest; complete an approved Ethics course; deliver two tutorials to a panel of Council members by 30 September 2017 and 31 October 2017; and that she deliver to the Council each month the purchase and sale records by each pharmacy in which she has a financial interest of Rhinocort® hayfever nasal spray 32mcg (budesonise), SM 33® oral gel (lignocaine), Combantrin® chocolate squares 24 (pyrantel) and Proctosedyl® ointment 30g (cinchocaine/hydrocortisone) products.
Those conditions were amended on 11 October 2017 and 13 December 2017 to delete the requirement for delivery of the tutorials.
On 17 May 2018 the practitioner attended a counselling interview in relation to a complaint involving a dispensing error at Priceline Pharmacy Gordon.
On 27 July 2018 the Council held a hearing under s 150 of the National Law in relation to compliance with the conditions on the practitioner's registration. The Council imposed conditions on the practitioner's registration that she must not practise as a pharmacist; must not enter any pharmacy in which she has a financial interest; must not possess keys, access codes or cards to any pharmacy in which she has a financial interest; must provide evidence to the Council that she has relinquished all keys, smart cards and access cards to the pharmacist in charge of each pharmacy in which she has a financial interest; and must prepare for, attend, engage with and complete the requirements of the Ethics Counsel Program at The Ethics Centre. Condition 6 was: Within 5 days, must provide evidence to the Pharmacy Council of NSW that the pharmacist/s in charge of each pharmacy in which she has a financial interest are aware of these conditions.

The Complaint

The Complaint was amended with leave at the beginning of the hearing to correct the date on which the conditions referred to in [7] above were imposed.
Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) and (l) of the National Law, in that she has contravened a condition to which her registration was subject, and engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. The particulars of Complaint One are: 1. On 3 August 2018 the practitioner provided a document to the Council purportedly signed by both pharmacists-in-charge of Priceline Gordon acknowledging that they had been told of the practitioner's conditions when the practitioner had forged the signatures. 2. The practitioner breached condition 6 of her registration by failing to provide evidence to the Council that she had made the pharmacists-in-charge of Priceline Pharmacy aware of her practice conditions 3. The practitioner undertook the following inappropriate conduct in relation to attempting to prove her compliance with condition 6: a. on or about 3 August 2018, the practitioner created a forged document purportedly signed by both pharmacists-in-charge of Priceline Gordon acknowledging that they had been told of the practitioner's conditions. b. on 14 October 2019 while giving evidence at the s150 hearing, the practitioner informed the Council that she had verbally notified the two pharmacists-in-charge of Priceline Gordon that she had conditions imposed on her registration on 24 July 2018, when the practitioner knew this was false. c. on 28 November 2019, at a directed interview at the Commission the practitioner gave evidence that she had informed both of the pharmacists in-charge at Priceline Gordon that she had conditions imposed on her registration on 24 July 2018, when she knew this was false.
Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. The particulars of Complaint Two are: 1. Around May 2018, the practitioner obtained a quantity of around 97 Gardasil-9 human papillomavirus vaccines ("Gardasil"), a Schedule 4 restricted substance, for an improper purpose, namely with the intention of supplying it by wholesale to Person A, in circumstances where the practitioner: a. did not hold the relevant wholesaler licence or authority required under section 9 of the Poisons and Therapeutic Goods Act 1966 ("PTGA"); b. knew that Person A was not an authorised person to whom she could lawfully supply Gardasil by wholesale, under section 11 of the PTGA. 2. Around May 2018, the practitioner obtained the Gardasil with the intention of supplying it to Person A in circumstances where: a. Person A did not have a valid prescription for any of the medication; b. Person A was not a medical practitioner; c. the practitioner knew that Person A intended to supply the Gardasil to Chinese nationals and international students. 3. Around May-August 2018, the practitioner stored the Gardasil in an improper manner, namely at her home in a spare refrigerator, in contravention of clause 29 of the Poisons and Therapeutic Goods Regulation 2008 ("PTGR"). 4. Around August 2018, the practitioner stored scheduled and ethical stock in an improper manner, namely at her home in a spare refrigerator, in contravention of clause 29 of the PTGR.
Complaint Three is that the practitioner is guilty of professional misconduct under s 139E of the National Law, the particulars being: 1. Particulars 1 and 2 of Complaint one individually and cumulatively justify a finding of professional misconduct. 2. In the alternative, when two or more of the particulars of Complaint Two are taken together, a finding of professional misconduct is justified.

The practitioner agrees to Particulars 1, 2, 3(a) of Complaint One; and Particulars 1(a), and 2(b) of Complaint Two.
The practitioner's Reply to Particulars 3(b) and (c) of Complaint One addresses the responses she gave to the questions put to her on 14 October 2019 at the s 150 hearing, and on 28 November 2019 at the interview held pursuant to s 34A of the Health Care Complaints Act 1993 (NSW). The practitioner states in response to Particular 3(b) that it is conceded that the first time she notified Mr Minh Phan (pharmacist in charge) about the conditions on her registration was the day after the second inspection on 19 September 2019. The practitioner states that she had a cultural dilemma in disclosing to her Vietnamese pharmacist the conditions imposed on her registration and having her sign the document, in the fear that the news would be shared to her parents. She did not inform Ms Namratha Dave (pharmacist in charge) about the conditions because of her fear of her father finding out.
In reply to Particular 1(b) of Complaint Two the practitioner concedes that the person identified as Person A in the Complaint was not an authorised person. She contends that Particular 4 of Complaint Two does not particularise the "scheduled and ethical stock" said to have been improperly stored. In response to Particulars 2(a), (c), and 3 of Complaint Two the practitioner relied on her affidavit of 12 August 2021.
In reply to Complaint Three the practitioner contends that her conduct ought not be deemed of sufficiently serious nature to justify an order for suspension or cancellation, as the nature of the conduct falls within the mid range of objective seriousness. The nature and duration of the conduct in Complaints One and Two was not over a long period of time, and were isolated instances of a lack of judgment under circumstances where she faced personal trauma. The remorse displayed at the s 150 hearing, the s 34A interview and in her affidavit is genuine and sincere.

Tribunal hearing

The HCCC relied on the following documents: 1. Bundle of documents filed 14 April 2021 (ex A1), including 1. Pharmacy Council of New South Wales Certificate of Registration Status, and AHPRA Evidentiary Certificate; 2. Transcript of hearing held on 14 October 2019 under s 150 of the National Law, and Reasons for Decision dated 5 November 2019 (the 2019 s 150 hearing); 3. Notice of Conditions purportedly signed by Namratha Dave and Minh Khai Phan; 4. Statements by Minh Khai Phan (14 July 2020) and Namratha Dave (10 July 2020); 5. Pharmacy Council Inspection reports 17, 18 September 2019; 6. Transcript of interview held on 28 November 2019 by HCCC pursuant to s 34A of the Health Care Complaints Act 1993 (the s 34A interview); 1. Email 24 August 2021 to HCCC from Aleksandar Gavrilovic (Monitoring and Compliance Lead - Real Time Prescription Monitoring, Integrated Care Portfolio, Ministry of Health) (ex A2); 2. Notice of proposed protective orders 25 October 2021 (ex A3); 3. Reasons for decision Pharmacy Council of NSW Inquiry 15 May 2017 (ex A4); 4. Reasons for decision Pharmacy Council of NSW s 150 hearing 27 July 2018 (ex A5) (2018 s 150 hearing); 5. Pharmacy Board of Australia Guidelines for Proprietor Pharmacists (ex A6); 6. Pharmacy Board of Australia Code of Conduct for Pharmacists (ex A7); 7. Extract from SaveMore Wholesale website (ex A8); 8. Extract from Pharmacy Council of NSW Pharmacy registration details (ex A9); 9. Email dated 26 October 2021 from Pharmacy Council of NSW to HCCC (ex A10).
The practitioner relied on the following documents: 1. Bundle of documents filed 13 August 2021 (ex R1) including: 1. Reply to the complaint; 2. Affidavit of My-Tran Nguyen sworn 12 August 2021; 3. Reference dated 13 August 2021 from Ajay Sharma; 4. Reference dated 13 August 2021 from Sunny To; 5. Reference dated 30 June 2021 from Carl Tuhtan, General Manager Pharmacall Pty Ltd; 6. Character references from Thao Le (10 July 2021), Dr David Tang (6 July 2021), Peter Wilkinson (12 August 2019), Tran Thi Sen (2 July 2021); 1. Reference dated 8 July 2021 from Kim Thuy Ly (ex R2); 2. Pharmacy Council of NSW Amendment to Conditions dated 1 November 2017 (ex R3); 3. Offer to Purchase Priceline Pharmacy Gordon (ex R4); 4. Contract for Sale of Business (ex R5); 5. Notice of Appointment of Administrator (ex R6).
Oral evidence was given by the practitioner, and by Mr Sunny To, her former employed pharmacist.
The hearing was a combined hearing on Stages 1 and 2, concluding with submissions by both parties as to the findings on Complaints One, Two and Three, and submissions as to what if any protective orders should be made if the complaints are proven.
At the beginning of the hearing the Tribunal heard an application for confidentiality orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). The HCCC opposed an order being made in respect of the person identified in the Complaint as "Person A", on the basis that he has been identified in other proceedings in the Tribunal (Health Care Complaints Commission v Gong [2020] NSWCATOD 152), and opposed an order in relation to the name of the practitioner's father, whose letter to the HCCC on behalf of the practitioner is included in exhibit A1. The parties agreed that an order should be made in respect of individual patients identified in prescribing and dispensing records included in exhibit A1. The Tribunal made an order under s 64(1)(a) of the NCAT Act in respect of the individual patients, but not James Mak (Person A) or the practitioner's father.
The HCCC bears the onus of proving the complaints against the practitioner, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The approach to be adopted by the Tribunal in making findings of fact in respect of matters in dispute was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms: 52. In medical 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 (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]). 53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.

The practitioner's evidence

In her affidavit the practitioner stated that she is divorced, and her five children aged between 12 to 24 live with her. She divorced in 2017, and was paying off debts left by her former husband in her name. The period 2016 to 2018 was a period of emotional and mental stress. She was unable to complete the ethics course as required in the conditions imposed on her registration on 23 June 2017 as she could not concentrate, because of her marriage issues. She completed the ethics course in 2018.
The practitioner stated that during the period 2017 to 2019 she was the owner of Priceline Pharmacy Gordon. She was not the Managing Pharmacist, and her employed pharmacists were Mr Minh Khai Phan, and Ms Namratha Dave who attended one day on the weekend. Mr Ajay Sharma was the full time retail manager. The practitioner stated that she regrets her actions in forging the signatures of the two pharmacists. At [7] the practitioner stated: I did not advise Ms Dave about the restrictions on my registration or that I was sitting the ethics course because I did not want my father to find out about the restrictions through Jasmin Vu, nor did I have a very close friendship with Mr Pham or Ms Dave. Although I did inform Mr Pham over the telephone to look after the dispensary for me because I won't be able to work as a pharmacist, I also informed him around 17 of September 2019 about the condition imposed. I had also advised Ajay Sharma (Priceline Gordon Pharmacy Manager) of my situation, but he is not a Pharmacist. I am ashamed of my actions and would never do such a thing again.
In relation to Complaint Two, the practitioner said that her decision to store Gardasil in her refrigerator at home was based on the fact that the refrigerator at the pharmacy was very small. She did not have knowledge that Mr James Mak (identified as Person A in the Complaint) intended to supply the Gardasil 9 to Chinese nationals or any international students overseas. Mr Mak had asked for 50 units of Gardasil. She had advised him that she could arrange to sell him Gardasil if and only if he had legitimate prescriptions for the Gardasil; however he did not provide her with any prescriptions. Her intention was to return the Gardasil to Sigma and not to sell it to Mr Mak without valid prescriptions. At [11] the practitioner stated: Person A had been a longstanding customer of the Pharmacy, and when I asked him why he needed Gardasil, he told me that his girlfriend was an Australian student from Sydney University who required HPV immunisation and was going to be conducted through a GP or facilitated by a home doctor for the USYD students. There was no mention about Chinese nationals/international students. I thought it was not dodgy or fishy at that time, when he said he wanted to purchase Gardasil from me.
The practitioner said that Mr Mak agreed to provide her with 10 legitimate prescriptions per week, however he and his girlfriend only provided her with one script. She did not supply him with Gardasil. She did not think it unlawful to store the Gardasil in her refrigerator because she had not dispensed it to him. She moved the refrigerator containing the Gardasil from her home to the Gordon Pharmacy on the advice from the HCCC. A sales representative from Sigma informed her that they could no longer accept a return for the Gardasil.
In oral evidence, the practitioner said that from 2017 she was not working full time as a pharmacist but would sometimes come in as a locum, and she did the ordering and management to help Ajay. From 2018 she was not allowed to go in to the pharmacy because she had not completed the ethics course. She sold the Savemore pharmacy in 2018, to show the Council she did not want to get involved in misconduct, and because it was located in an area where there were people doing lots of things and it was hard to compete with other pharmacies. She sold the Savemore pharmacy to concentrate on her children and the Gordon pharmacy.
The practitioner was asked about the supply of Gardasil. She acknowledged that in 2018 Gardasil 9 was hard to get. She was not sure whether James Mak's girlfriend was Chinese. Her understanding at the time was that the supply was for Sydney University students, who could have been Chinese students.
The practitioner agreed she had forged the signatures of both Mr Phan and Ms Dave, and that she had not told them of the condition on her registration until after the pharmacy inspection. She had indirectly told Mr Phan that something was wrong and she was not allowed in to the pharmacy, she did tell him to look after the pharmacy. She registered the Pharmaceutical Benefits Scheme (PBS) under his name.
The practitioner was asked about keys to the Gordon pharmacy. Initially she said that Ajay had keys, and that Justin the intern pharmacist had keys; she agreed it was inappropriate for either of them to have had keys. Later, in re-examination, the practitioner said that she had given keys to Justin for emergencies. In August 2018 she gave keys to Ajay, and there was a spare set of keys in the safe so Ajay could give them to a locum pharmacist; and Mr Phan had keys.
The practitioner was asked about James Mak, who she described in her affidavit as a "longstanding customer" of the pharmacy. The practitioner said that James Mak occasionally came in to her Silverwater warehouse to help out the warehouse staff, a long time ago. Later in her evidence she said that he used to help out with his forklift from his warehouse around the corner from her Silverwater warehouse; he did not work for her, but he helped out for a little pay here and there. He has a truck and helps courier things for her. He helped out by taking the Gardasil to her home so it could be put in the refrigerator.
In her affidavit the practitioner had stated that "During 2017-2019, I was the owner of Priceline Pharmacy at Gordon". She was asked in cross examination why she had not stated that she stills owns that pharmacy, and said that was because she had sold it last year. She did not think it was important because she contacted the Council a month ago to ask if she could enter the pharmacy for settlement, thinking at the time the transaction would have been completed. At that time in August she thought it would settle at the end of September, then it was mid October and it still has not happened. She sold the pharmacy to Sunny To. There are three people named on the contract including Sunny To.
The practitioner told the Tribunal that she has decided that she wants to work as a community pharmacist and be at home earlier for her children. She hopes not to be running a business but still has to pay bills. She has about $400,000 in debts from her Savemore Wholesale business and is waiting to see if she can sell the Gordon pharmacy to pay them off.
The practitioner was asked about the Savemore Wholesale business, and said that that business has closed because of Covid restrictions, and now supplies small quantities locally. The business mainly concentrated on baby formula.

Evidence of Sunny To

In his character reference in support of the practitioner dated 13 August 2021 Mr Sunny To stated that he had worked as a pharmacist for Gordon Discount Drug Store for a few years back in 2012. The practitioner was his mentor when he sold his small community pharmacy and came to work at her discount chemist. The practitioner taught him how to retail in a discount environment, and she showed him how she sold perfumes. She was one of the first export professionals, and from his understanding that is still going strong in the Vietnamese market. The practitioner is not only good with the dispensary but knowledgeable about vitamins and over the counter products especially perfumes. The practitioner is a very caring, humble, gentle and kind hearted person; she would do anything to make sure the patient's health comes first. The practitioner has provided help with representation and charity work in the Vietnamese community.
In oral evidence Mr To said that he was aware of the Pharmacy Board listings of the restrictions on the practitioner's practice as a pharmacist. He was not aware that she is currently suspended. He said that there were negotiations for the purchase of the Gordon pharmacy in November, and the contract was signed in March or April. The delay in completion is because of finance and Covid, and the landlord is holding up the lease. He hopes that settlement will be in about 4 weeks. He could not get finance and so he got his associates to purchase the pharmacy; he no longer has an involvement in the purchase, and is helping as one of the purchasers is his associate.
Mr To said he was not aware of the condition requiring the practitioner to obtain signed documents or that she had forged the signatures of the two pharmacists; or that she ordered 97 doses of Gardasil to provide to Mr Mak to on supply to his girlfriend and students; or that there had been previous proceedings about the supply of Schedule 2 (S2) medications in 2015; or that the practitioner had been involved in a large volume of Rhinocort® purchases; or that the practitioner had delayed completing the ethics course. Asked whether knowing that, he would stand by his comments in his character reference, or if it would change his opinion about her, he said that it would, those issues were not consistent with what he knew about the practitioner.
Mr To was aware that between 2014-2015 at the Savemore pharmacy there had been a significant increase in turnover selling to individuals for resale, and was aware that the practitioner was exporting, supplying non-scheduled vitamins. The practitioner was one of the specialists in the Chinese market and was now into the Vietnamese market. Asked whether he had any concerns relating to export of scheduled medicines from the Gordon pharmacy when he was doing his due diligence for the purchase, Mr To said he was concerned at the volume of wholesale sales of sanitiser and masks, and was buying based on the retail sales. That was why he reduced his offer for the pharmacy. He was concerned that the turnover in wholesale was $500,000, mainly for a supplement for children which is big business in Vietnam. Mr To stated that he respected the practitioner a lot, she has helped him as a mentor, and when he left a partnership in 2011.

Whether the subject matter of the Complaint is proven

As noted above, the practitioner admits some, but not all, of the particulars of the Complaint. The Tribunal is required to determine whether the HCCC has satisfied the onus of proving that the subject matter of those matters disputed by the practitioner is proven. In considering the evidence and making findings on those particulars of Complaints One and Two which are not admitted, the Tribunal has had regard to the practitioner's evidence concerning those allegations as presented to the Tribunal, and as recorded in the transcripts of the 2019 s 150 hearing and the s 34A interview.
The HCCC submits that the practitioner was an unreliable witness and historian, and her evidence was evasive and inconsistent. The HCCC submits that there were material non-disclosures, including her failure to disclose until under cross examination that she continues to own the Gordon pharmacy and continues to operate a warehouse supplying products overseas including baby formula and vitamins; that her recollection of matters was questionable, including not being able to disclose the names of two of the three purchasers of the Gordon pharmacy; and that she provided misleading answers in cross examination.
The practitioner submits that she was a credible witness, and that her circumstances at the time, including having been a victim of domestic violence and having significant debts, are relevant to findings in relation to Complaints One and Two. The practitioner submits that her evidence before the Tribunal, including in cross examination, is not inconsistent with what has been her position from the beginning.
The Tribunal agrees with the HCCC that the practitioner's evidence to the Tribunal was evasive, and at times her answers were not responsive to the questions asked. On occasion her oral evidence was inconsistent with her affidavit evidence or statements at the 2019 s 150 hearing and s 34A interview. The Tribunal's concerns as to the reliability of her evidence are addressed in the findings on matters relevant to both the conduct alleged in the Complaint, and in consideration of appropriate protective orders.

Complaint One

It is not disputed that: 1. On 17 September 2019 during a routine inspection of the Gordon pharmacy a Pharmacy Council Inspector noted: 1. There was a deficiency in relation to storage of Schedule 8 drugs, the safes used for storage being non-compliant, and a large quantity of out of date or unusable drugs were stored outside of a safe and most did not appear to have been entered in a drug register; and 2. Neither the pharmacist in charge, Mr Minh Khai Phan, nor the intern present on that occasion, were aware of conditions on the proprietor's registration; and 1. On 18 September 2019 the Inspector returned and the pharmacist in charge on that date, Ms Namratha Dave, and the intern, Mr Justin Ma, had not been made aware that the proprietor had conditions on her registration.
It is not disputed that following those inspections: 1. on 19 September 2019 the practitioner sent an email to the Council in which she stated that she had been able to communicate with her interns and pharmacists and made them aware of her current situation, and that "[m]ost of my staff in Gordon aware of my condition as I have never stepped in there and give authorities to the pharmacists", and "I have personally informed them with my condition last year" (ex A1, tab 10); 2. on 10 October 2019 the practitioner sent an email to the Council responding to the notice of the s 150 hearing, in which she said she had not realised the importance of being a good ethical pharmacist until she had completed the ethics course (ex A1, tab 11); and 3. on 13 October 2019 the practitioner's father sent an email to the Council in which he stated that he and his wife had been very ill and the practitioner had confessed that she did not want them to know of her situation, her main purpose being to hide it from the family, and that the practitioner is a good daughter and a good pharmacist (ex A1, tab 12).
It is not in dispute that the practitioner provided to the Council documents purportedly signed by Namratha Dave and Minh Phan acknowledging that conditions had been imposed on the practitioner's registration effective 27 July 2018, having forged those signatures. It is not apparent in the evidence before the Tribunal when those documents were provided to the Council, however the dates recorded on them suggest it was shortly after the imposition of the conditions. In any event, there is no dispute that the documents were provided to the Council well before the inspections in September 2019, when both pharmacists informed the inspector that they had no knowledge of the conditions.
The documents purportedly signed by Mr Phan on 3 August 2018 (ex A1, tab 7) and Ms Dave on 2 August 2018 (ex A1, tab 6) are on Council letterhead, and contain an acknowledgement of the conditions imposed on the practitioner's registration, those conditions then being stated in full, and state: I agree that as the co-proprietor/pharmacist in charge (please delete accordingly) of [Gordon Priceline] (name of pharmacy) that I have read this document and am aware of the conditions imposed on Miss Nguyen's registration. I can confirm that Miss Nguyen has relinquished all keys, smart card and/or access cards, in her possession, to the myself of the pharmacy named above in which she has a financial interest.
The documents state that the conditions were imposed effective "27 July 2017". That is an error, as the AHPRA Evidentiary Certificate (ex A1, tab 2) and the reasons for decision for the s 150 hearing at which the conditions were imposed (ex A5) confirm that the decision to impose the conditions that the practitioner not work as a pharmacist, and relinquish her keys and access cards, and provide evidence that the pharmacist/s in charge of each pharmacy in which she has a financial interest are aware of the conditions, was made on 27 July 2018.
Mr Phan and Ms Dave have provided statements (ex A1, tabs 17, 18). In his statement, dated 28 July 2020, Mr Phan states that at the time of the first inspection on 17 September 2019 he was pharmacist in charge at the Gordon pharmacy, and at that time he was not aware that the practitioner had any conditions imposed on her registration, and that he was made aware of the conditions by the practitioner personally in a phone conversation on 19 September 2019; and he had not signed any document in relation to conditions on the practitioner's registration. In her statement, dated 14 July 2020, Ms Dave states that she was the pharmacist in charge on 18 September 2019, and that in response to the Inspector's questions had said she had not been notified by the practitioner of the conditions on her registration; and she did not sign the document dated 2 August 2018.
Neither Ms Dave nor Mr Phan was required for cross examination. The Tribunal finds based on their statements that neither was aware of the conditions imposed by the Council on 27 July 2018 until after the Council inspections in September 2019. Both Mr Phan and Ms Dave confirmed that the signatures on the documents were not their signatures (ex A1, tabs 14, 17).
The practitioner has admitted particulars 1, 2 and 3(a) of Complaint One. The Tribunal is independently satisfied that the practitioner created a forged document purportedly signed by each of the pharmacists in charge of her pharmacy at Gordon, and provided those documents to the Council. The practitioner was required by Condition 6 on her registration as imposed on 27 July 2018 to provide evidence within 5 days that her pharmacists in charge were aware of the conditions that she not work as a pharmacist and not enter any pharmacy in which she had a financial interest, and relinquish her keys and access cards. The documents purporting to confirm that she had done so were forged. Particulars 1, 2 and 3(a) of Complaint One are proven.
Particulars 3(b) and (c) concern what was said by the practitioner at each of the s 150 hearing on 14 October 2019 and the s 34A interview on 28 November 2019.
The transcript of the 2019 s 150 hearing (ex A1, tab 15) records that the practitioner was asked why she chose to sign the acknowledgment documents herself instead of asking the pharmacists to do so, and she responded (Transcript p 6): Nguyen: I could have done that but because there's a few people in the pharmacy where it could get to my parents and my dad was very sick at the time. Sinclair: Okay. Nguyen: And if he knew that his daughter was a bad person it would affect him but I think I was stupid at the time. I just -I-did explain to the pharmacist but in a different way and then after I got into trouble with the Pharmacy Council - sorry, with the pharmacy the staff inform me that there were questions asked and I called the pharmacist himself. After speaking to him I realise that, you know, the way I conveyed to him that he understood the purpose of me, I asked him to look after the pharmacy, I did talk to him quite a fair bit that afternoon.
The practitioner was asked to tell the delegates exactly what she had said: Sinclair: Tell us exactly what you said to the pharmacist. You're intimating that you said in as many words but you didn't get him to sign something. Nguyen: Correct. Sinclair: So tell me what you - what you said to the pharmacist. Nguyen: I said to the pharmacist that unfortunately I will not go back to the pharmacy any more, I have done something wrong. He knew - he knew that part of it was previously - did wrong, not just from me alone but because it's under my pharmacy licence so I'm totally responsible. I told him that, you know, you knew that I got in trouble with the Pharmacy - with the SQ products and you know that I got in trouble with the Pharmacy Council but you know that now I been in trouble with the Pharmacy Council but I'm not really show him the conditions. … Nguyen: That was the part that I did wrong. I explain to him but in a different way, so. Sinclair: Actually you didn't explain to him at all. You told him probably what he already knew. What you didn't tell him was the outcome - Nguyen: Correct. Sinclair: --of the Pharmacy process. Nguyen: Yes. Yes.
When put to her that the condition required her to notify the staff of conditions imposed on her registration and get them to sign an acknowledgement of that notification, the practitioner agreed, and in response to the proposition that she did not do that, said "I did not do that". Later in the hearing the practitioner said that instead of telling the pharmacists she told the pharmacy manager, Ajay Sharma.
The practitioner was asked whether the pharmacists at the Gordon pharmacy asked why she did not come in to the pharmacy any more, and she responded (Transcript p 21): Nguyen: They - I'm really sure I told them and then the way I told - the way I told them was just - not just because I'm not allowed to go in. Sinclair: When did you tell them that? Nguyen: I'm sure I told them at the time but I - when I talked to - Sinclair: You can remember that but you can't remember signing the forms? Nguyen: I tell you that I told Minh that I cannot go back into the pharmacy any more. Sinclair: Did he say why, why not? Nguyen: I told Minh that there's an S2 and - S2 condition. Minh knew I had problem with S2 condition. He knew that I had problem with the Pharmacy Council. He also advised me, My, don't do anything silly any more. I remember because I said, Minh, thank you very much because Minh also work and I told all - Ajay and Minh that make sure they tell Too at the time and Minh - I remember at one stage - look, I vaguely remember he asked why and I said, Because of the condition I have and also that, you know, he just make sure that he don't hand down more than two if there's any export or anybody want more.
Asked further questions about who had access to the pharmacy keys, and whether Mr Phan had the keys, the practitioner said: Nguyen: He has but he - at the time that I can't work as a pharmacist he said that he will work more days for me. He - he helped me out because he know that I can't work as a pharmacist. … Sinclair: So everyone knew you but you just didn't get them to sign a form? Nguyen: Because I - when I told Minh that - I might have said it. When you read the form it's very - what's the word for it - to me it's invasive, no I wouldn't say that, use that word. If I - if I use my words to say things it's just no as bad. Starr: So you think the form makes it sound worse than it really is? Nguyen: Yes.
Based on the transcript, the Tribunal is satisfied that at the s 150 hearing on 14 October 2019 the practitioner told the Council delegates that she had informed the pharmacists of the conditions on her registration, when she said ([56] above) that "I'm really sure I told them and the way I told …". The use of the plural in the questions asked and the practitioner's responses in that part of the hearing indicates that Ms Dave is included. In the more detailed questioning as to what she told Mr Phan, the practitioner said that she had informed him that she could not go back in to the pharmacy as she had "done something wrong", and that he was in charge, and that he helped her out "because he know that I can't work as a pharmacist". The Tribunal is satisfied that while the practitioner's explanation to the delegates was less than clear, and included traversing the conditions previously imposed on her registration concerning the supply of scheduled items, the practitioner told the delegates that she had explained to Mr Phan "in a different way" why she was asking him to look after the pharmacy.
The s 34A interview was held on 28 November 2019 following notice to the practitioner under s 34A(1)(c) of the Health Care Complaints Act given on 18 November 2019, including notice of the provisions of s 37A of the Health Care Complaints Act (ex A1, tab 25). The practitioner was asked about the complaint made that she had failed to inform the pharmacist in charge of the Gordon pharmacy of the conditions on her registration, and the practitioner responded: A I have but probably in a different way and - Q Sorry, what do you - could you just - A I have but I just talk to - to them in a different way. Q So you have - A I have informed them. Q You had informed them. A But it doesn't matter because to say that I have given them the sheets, it's a no but I have informed them on the phone.
The practitioner was later asked if she had ever informed Ms Dave of the conditions. The practitioner stated: A: Nam worked one day a week and I did not inform her but I did inform Minh in a different way. I asked Minh to look after the pharmacy for me because I can't work at the pharmacy any more so you will be in charge. Q: Okay. A: But I talked to Minh in a different way. Q. Okay. So you didn't inform Nam - A. No, I didn't. Q. You didn't call Nam, that's Namrata Dave, is that Nam? A. I probably did tell her a different thing. I said, "Nam, please look after the pharmacy for me, you and Minh", but I did not inform of my conditions.
The transcript confirms that in the s 34A interview the practitioner told the interviewers that she had informed the pharmacists in charge of the conditions on her registration. While that was qualified by reference to "probably in a different way", and she stated later in the interview that she had informed Mr Phan "in a different way" that she could not go into the pharmacy, and she later acknowledged that she had not informed Ms Dave of the conditions, the Tribunal is satisfied that when asked to respond to the complaint that she had failed to inform the pharmacists of the conditions she told the HCCC investigation officers that she had done so.
The HCCC submits that the practitioner misled the Council delegates at the 2019 s 150 hearing, and misled the HCCC by her statements in the s 34A interview. The practitioner submits that she had maintained in the s 34A interview that she had not informed Ms Dave; and that she had informed Mr Phan of the conditions by telephone as confirmed in his statement dated 3 October 2019 (ex A1, tab 13).
Particulars 3(b) and (c) allege that the practitioner's conduct in attempting to prove her compliance with condition 6 was inappropriate in that she had stated at both the s 150 hearing and the s 34A interview that she had verbally notified the pharmacists in charge of the Gordon pharmacy of the conditions imposed on 27 July 2018, when she knew that was false. Based on their statements, the practitioner informed Mr Phan of the conditions only after the Council inspection on 17 September 2019, and Ms Dave became aware of the conditions only when told by the Council inspector on 18 September 2019 and by confirming for herself through the public AHPRA register. The Tribunal is satisfied, based on the transcripts of the 2019 s 150 hearing and the s 34A interview, that the practitioner told the Council delegates and the HCCC inspectors that she had told her pharmacists about the conditions imposed on 27 July 2018. To have said on both occasions that she had done so "in a different way" suggests a misunderstanding or miscommunication; however, the evidence of both pharmacists was clear, and neither knew of the conditions that prevented the practitioner from going in to the pharmacy and working as a pharmacist. To have informed the Council delegates and the HCCC investigators that she had notified the pharmacists of the conditions when she had not done so was inappropriate conduct, and particulars 3(b) and (c) are established.
The Tribunal is satisfied that the conduct as alleged in Complaint One is proven.

Complaint Two

It is not disputed that: 1. In around May 2018 the practitioner ordered 97 Gardasil-9 vaccines, a Schedule 4 medicine; 2. She did so at the request of James Mak; 3. The practitioner did not hold a wholesaler licence or an authority required under s 9 of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTG Act); 4. Mr Mak is not a medical practitioner or an authorised person for the purposes of the PTG Act; 5. The 97 doses of Gardasil were delivered to the Savemore pharmacy in May or June 2018, and then transported to and stored in a refrigerator at the practitioner's home; 6. On 10 August 2018 the practitioner telephoned the Pharmaceutical Regulatory Unit (PRU) querying why they were investigating Gardasil 9 supplies, stating that she had stock recorded in the records of the Marrickville pharmacy in her refrigerator at home, being 97 doses of Gardasil 9, along with other stock that the new owner of that pharmacy did not want; 7. The practitioner was told that the vaccines had to be moved as soon as possible to the Gordon pharmacy; and 8. The vaccines remained at the practitioner's home at least until late August 2018.
Particulars 1 and 2 relate to the circumstances in which the practitioner obtained the Gardasil, and whether her intention in doing so was to supply it to Mr Mak by wholesale, and to supply it to Mr Mak in circumstances where he did not have a valid prescription and she knew that he intended to supply it to Chinese nationals and international students.
The Tribunal regards the practitioner's evidence concerning the circumstances in which she obtained the Gardasil as less than satisfactory.
First, concerning her relationship with Mr Mak, while in her affidavit she described him as a "longstanding customer" of the pharmacy, and initially in oral evidence as an "on and off" customer at the Savemore pharmacy, later in oral evidence she stated that Mr Mak had helped out in her Silverwater warehouse, and that he was the person who couriered the Gardasil from the Savemore Marrickville pharmacy to her home. Mr Mak had been involved in on selling A2 milk formula purchased from her for some time: the practitioner stated in the s 34A interview that she first met him in 2015, and that on his return from China he had started buying baby formula from her again. Her responses in that interview confirm that Mr Mak was one of the customers for her wholesale business, and that her understanding in relation to the Gardasil was that instead of the girls coming to the pharmacy "he's the one that is organising everything for them". The Tribunal concludes that the practitioner was involved in a more commercial relationship with Mr Mak than her initial description of him as an "on and off customer" of the pharmacy would suggest.
As to the basis on which the practitioner ordered the Gardasil at the request of Mr Mak, her affidavit evidence was that he had told her that his girlfriend was an Australian student from Sydney University who required HPV immunisation, to be conducted through a GP, and that she had arranged to sell it to him only if he had legitimate prescriptions for it. She stated at [11] that "[t]here was no mention about Chinese nationals/international students". In oral evidence the practitioner maintained that position, stating that she had been approached by Mr Mak in May 2018 and was told that his girlfriend had been asking for the vaccine for her girlfriends. The practitioner was not sure whether Mr Mak's girlfriend was Chinese, and she thought the supply was to university students, Asian girls, who could be Chinese.
However that is not consistent with her responses in the s 34A interview, in which the practitioner stated that Mr Mak had advised that his girlfriend had "many friends who need Gardasil because the Chinese girls they need Gardasil and he said if I can order stock...", and further that Gardasil 9 was what her customers wanted, and not Gardasil 8, and that "the Chinese very up to date".
There is in evidence only one prescription provided for the Gardasil vaccine ordered at the request of Mr Mak, dated 14 June 2018 (ex A1, tab 28). In the s 34A interview the practitioner stated that she did not dispense the vaccine because she did not see the original of that prescription.
Particulars 1 and 2 of Complaint Two require a finding as to the practitioner's intention in obtaining the Gardasil. The Tribunal considers that her explanation as to the reason for ordering 97 doses of Gardasil 9, at a cost of some $14,500 (ex A1, tab 27), on behalf of someone who was not a medical practitioner and who had not provided any prescriptions, was less than convincing. While the practitioner's oral evidence was that she wanted to keep some of the vaccines at the pharmacy, that is not consistent with her evidence that she tried to return all the vaccine delivered to Sigma. Her evidence as to her understanding of the ultimate destination for the vaccines was inconsistent, maintaining in her evidence to the Tribunal that she thought the supply was for students, whereas in the s 34A interview she was clear it was for Chinese friends of Mr Mak's girlfriend.
The quantity supplied to the practitioner is not clear: her evidence in the s 34A interview was that 97 doses were delivered, however when taken to the Sigma purchase report (ex A1, tab 27) agreed that 96 doses were supplied for Marrickville, and 50 for Gordon.
The focus of particulars 1 and 2 is on the practitioner's intention in obtaining the Gardasil. In the Tribunal's view, the nationality of the ultimate recipients of the vaccines is less important than what the practitioner knew about where the Schedule 4 medication was going, and how it was to be provided to those recipients. As best can be discerned from the evidence, the contact by Mr Mak was in April or May 2018; the practitioner ordered the Gardasil in April or May 2018; the Gardasil was delivered some time around 12 to 14 June 2018 and transported by Mr Mak to the practitioner's home; and the Gardasil stayed in the refrigerator at her home until at least August 2018. The only prescription in evidence (ex A1, tab 28) was provided after the order was placed. The practitioner obtained a large quantity of an expensive vaccine for supply to Mr Mak in circumstances where at the time she obtained the Gardasil the person to whom she intended to supply the vaccines did not have a valid prescription, was not a medical practitioner, and was not an authorised person to whom she could lawfully supply a Schedule 4 medication.
Particular 1 of Complaint Two requires a finding as to whether the practitioner obtained the vaccines with the intention of supply "by wholesale" to Mr Mak. The term "supply by wholesale" is defined in s 4(1) of the PTG Act to include "(a) supply of the substance or goods for the purposes of resupply". The practitioner concedes that she does not hold a relevant wholesaler licence or authority required under s 9 of the PTG Act, and that Mr Mak is not an authorised person for the purposes of s 11 of the PTG Act. As discussed above, the Tribunal has significant reservations as to the reliability of the practitioner's evidence, including in relation to the extent of her business dealings with Mr Mak. The Tribunal has concerns as to whether, in obtaining a large quantity of scheduled medications for ultimate supply to unknown persons, the practitioner reflected on her obligation as a registered pharmacist under section 3.15 of the Pharmacy Board of Australia Code of Conduct for Pharmacists (March 2014), which provides: 3.15 Working with multiple clients Where practitioners are considering treating multiple patients or clients simultaneously in class or group work, or more than one individual patient or client at the same time, practitioners should consider whether this mode of treatment is appropriate to the patients or clients involved, including whether it could compromise the quality of care (see also Section 3.4 Confidentiality and privacy and Section 3.5 Informed consent).
It is possible that the practitioner thought that Mr Mak would take all the vaccines and that for some reason he was ultimately unable to provide prescriptions; or that she thought that Mr Mak would on supply the medications, with or without prescriptions; or that she simply did not turn her mind to the question of how they would be provided to the ultimate recipients. However, there is no evidence that the practitioner in fact dispensed or provided any of the vaccines to Mr Mak, including on the copy of the one prescription that is in evidence. The Tribunal is unable to find, to the requisite standard, that the practitioner intended to supply the vaccines by wholesale to Mr Mak as alleged in particular 1 of Complaint Two.
Particular 2 of Complaint Two also requires a finding as to the practitioner's intention in obtaining the Gardasil. It is not in dispute that at the time she ordered the vaccines, Mr Mak had not provided a valid prescription; it is not in dispute that he was not a medical practitioner. Particular 2(a) as framed refers to the practitioner's intention at the time of ordering and receiving delivery of the vaccines; and the practitioner's conduct might reflect common retail pharmacy practice of ordering stock in advance of supply, to be dispensed and supplied on receipt of a prescription. As noted above, while the Tribunal has serious reservations about the reliability of her evidence, in the absence of evidence that the practitioner in fact dispensed or provided any of the vaccines to Mr Mak, the Tribunal is unable to be satisfied to the requisite standard as to the practitioner's intention at the time of obtaining the Gardasil. The HCCC has not discharged its onus of establishing the allegation in particular 2 of Complaint Two.
Particular 3 of Complaint Two relates to the storage of the Gardasil. It is not in dispute that after delivery to the Savemore pharmacy in Marrickville the vaccines were transported to the practitioner's home. Her evidence in the s 34A interview was that the stock stayed in the refrigerator at her home from June until she returned from America in late August 2018, a few weeks, and she wanted to keep the stock supplied for the Gordon pharmacy and return the Marrickville stock (Transcript, p 33). As at the date of that interview the Gardasil was stored at Gordon, and a report from the Gordon pharmacy indicated that there were 88 on hand, 85 had been dispensed and 23 purchased (Transcript, p 36).
The practitioner's response in her affidavit to the allegation that the medications were stored "in an improper manner" was that the refrigerator was large, and it was secured from anyone else and she considered it not unlawful because she had not dispensed the vaccines.
The HCCC relies on the email from Mr Gavrilovic (ex A2) in its submissions as to the applicable law on this issue (while acknowledging corrections required for some of the references to the provisions of the legislation). Mr Gavrilovic stated that a registered pharmacist may only conduct the business of a pharmacy in "approved premises", as defined in the National Law; and the practitioner's home is not approved premises. Part 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016 made under the National Law provides for matters relating to the pharmacy profession; and Schedule 5 of that regulation specifies the equipment required for premises used for carrying on a pharmacy business. That equipment includes "a refrigerator manufactured (either exclusively or principally) for the purpose of storage of vaccines". Mr Gavrilovic stated that at no stage has the practitioner indicated that her home refrigerator was compliant. Mr Gavrilovic referred to cl 29 of the Poisons and Therapeutic Goods Regulation 2008 (PTGR), which provides: 29 Storage generally A dealer who has possession of any restricted substance must keep the substance - (a) in a room or enclosure to which the public does not have access, and (b) apart from food intended for consumption by humans or animals, and (c) in such a way that, if its container breaks or leaks, the substance cannot mix with or contaminate any food intended for consumption by humans or animals. Maximum penalty - 15 penalty units.
Mr Gavrilovic referred to the requirements of the Health Practitioner Regulation (New South Wales) Regulation 2016 that a "retail pharmacist" means a person employed in a "retail pharmacy", defined to mean premises included in the Register of Pharmacies kept under Schedule 5F of the National Law. Mr Gavrilovic referred to the obligation of a proprietor pharmacist under the Pharmacy Board of Australia Guidelines for Proprietor Pharmacists (September 2015) to ensure compliance with applicable legislation "regarding facilities and equipment required for the types of services delivered at the pharmacy", concluding that the legislation and Guidelines require the business of a pharmacy to be conducted from approved premises.
The practitioner did not dispute that her home is not an "approved premises" as required by Sch 5F of the National Law and the Health Practitioner Regulation (New South Wales) Regulation 2016, and she relied on cl 29 of the PTGR in support of her position that storage of the vaccines in the refrigerator at her home was not improper. Her affidavit evidence was (at [8]) that the spare refrigerator at home was large and could easily accommodate the quantity of stock, "with a lock to storage door secure the Gardasil, and keep it out of reach from anybody else".
The practitioner's evidence in the s 34A interview was that no one at her home had access to the refrigerator: that there was storage next to the office, the house was three levels and on that level it was only her who went in and out. That evidence suggests that the refrigerator was located in a part of the house where others in the household would not go. However, others did have access: the practitioner's oral evidence to the Tribunal was that when the stock was delivered she had asked her daughter (then aged around 21) to turn the refrigerator on to 3 degrees before Mr Mak delivered the box of vaccines to her home.
As to whether the refrigerator itself was secure, in the s 34A interview the practitioner stated that there was no lock on the refrigerator, but her kids would not go down there. However in oral evidence the practitioner told the Tribunal that there was a lock on the door and a lock on the refrigerator.
While the evidence as to the security of the refrigerator or the room in which it was located is equivocal, and while the practitioner conceded in oral evidence that the refrigerator (which she described as "hospital grade") was not QCPP certified, there is no indication that the refrigerator was used for ordinary domestic purposes in a part of the house used by other family members or by visitors, or accessible by anyone other than residents. There is no indication in the legislation as to what is meant by "a room or enclosure to which the public does not have access" for the purposes of cl 29(a) of the PTGR, in particular whether that term should be understood in any other than its ordinary meaning, so that it would apply to a location in a private home to which only members of the family, as opposed to members of the public generally, could have access. The evidence that the refrigerator had to be turned on to a specific temperature before the vaccines were transported would suggest that this was not a refrigerator in which food intended for human or animal consumption might be kept.
The issue is whether in storing the vaccines, which as Schedule 4 medicines were a "restricted substance" as defined in s 4(1) of the PTG Act, in those circumstances was in contravention of cl 29 of the Poisons and Therapeutic Goods Regulation as alleged in particular 3. The Tribunal is of the view that the refrigerator and its location would appear to meet the physical requirements of cl 29 of the PTGR. The emailed advice of Mr Gavrilovic focuses on the requirements under the National Law for approval of premises for the carrying on of a "pharmacy business" by a pharmacist, which is defined in cl 1 of Sch 5F to the National Law to mean the business of a pharmacist "…in which the dispensing and compounding of prescriptions for any substance specified in the Poisons List proclaimed under section 8 of the Poisons and Therapeutic Goods Act 1966 occurs". It is not clear how those requirements, including the specification in Part 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016 of the standards for approval of premises from which a pharmacy business is conducted, might apply to a circumstance, for example, in which a pharmacist who has possession of a restricted substance temporarily stores that substance in the course of travelling between approved pharmacy premises while conducting a business at each of those premises, if the general requirements of cl 29 of the PTGR for storage of a restricted substance are otherwise met for the temporary storage.
The Tribunal is not satisfied that the HCCC has discharged its onus of proving that the storage of the Gardasil in the practitioner's home in a spare refrigerator was in contravention of cl 29 of the PTGR, as alleged in particular 3. However, the Tribunal has significant reservations as to the appropriateness of the practitioner's conduct in all the circumstances. The practitioner had an obligation as a registered pharmacist, as stated in the Code of Conduct (March 2014) at 1.2, to make the care of patients or clients her first concern and to practise safely and effectively. Providing good care includes facilitating the quality use of therapeutic products based on the best available evidence and the patient or client's needs (at 2.2(p)). The Tribunal is concerned that the practitioner considered it acceptable to store away from the pharmacy premises stock that requires refrigeration to remain useable and safe for what on the evidence was an extended period of some weeks, rather than overnight, and needed to be told by the regulatory authority that she could not keep it at home.
Particular 4 of Complaint Two does not identify the "scheduled and ethical stock" other than the Gardasil vaccines alleged to have been improperly stored in the refrigerator at the practitioner's home. In the s 34A interview the practitioner stated that she had scheduled and expired stock at her home, which had come from the pharmacy. It was still at her home on the date of the interview, and the practitioner's evidence to the Tribunal was that she still had some stock from the Gordon pharmacy at her home as at the date of the hearing. The Tribunal is unable to make a finding as to what medicines or ethical stock, in addition to the Gardasil, may have been stored in the spare refrigerator, as opposed to in the storage area. For similar reasons to those discussed in relation to particular 3, the Tribunal is not satisfied to the requisite standard whether the method of storage was in contravention of cl 29 of the PTGR as alleged. However, while not satisfied that the HCCC has discharged the onus of establishing that the conduct as alleged in particular 4 is proven, the Tribunal expresses similar reservations as to the practitioner's consideration of what is appropriate handling and storage of scheduled and expired stock.
For the above reasons, none of particulars 1, 2, 3 or 4 of Complaint Two as framed are established, and the Tribunal does not find the conduct as alleged in Complaint Two is proven.

Whether the practitioner is guilty of unsatisfactory professional conduct or professional misconduct

Section 139B of the National Law relevantly defines "unsatisfactory professional conduct" in the following terms: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
"Professional misconduct" is defined in s 139E: 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 the practitioner is guilty of unsatisfactory professional conduct

Condition 6 as imposed on the practitioner's registration on 27 July 2018 required her to provide evidence to the Council within 5 days "that the pharmacists in charge of each pharmacy in which (you have) a financial interest are aware of these conditions". Neither of the pharmacists in charge of the Gordon pharmacy was aware of the conditions until after the Council inspections in September 2019. The documents provided to the Council by the practitioner in purported compliance with condition 6 were forged. The Tribunal concludes that the practitioner did not comply with condition 6, and that the failure to do so is, as alleged in Complaint One, unsatisfactory professional conduct as defined in s 139B(1)(c) of the National Law.
In considering whether the practitioner's conduct as found in relation to Complaint One can be characterised as "unsatisfactory professional conduct" as defined in s 139B(1)(l) of the National Law, the Tribunal notes that the terms "improper" and "unethical" are not defined in the National Law, and so their ordinary meaning applies.
In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 the Tribunal stated: 41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]).
In Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 the Tribunal held that facts which may establish any of the 11 unsatisfactory professional conduct grounds preceding s 139B (1) (l) may of themselves, if proven, constitute unsatisfactory conduct, and additionally may also constitute "any other improper or unethical conduct". On that basis, the practitioner's non-compliance with condition 6 on her registration could also be improper or unethical conduct for the purposes of s 139B(1)(l).
The practitioner had a duty to be honest and candid with the regulatory authorities, as an integral part of the proper functioning of the regulatory system. She created forged documents which she provided to the Council in an attempt to prove compliance with condition 6 imposed on her registration on 27 July 2018. She provided misleading evidence both to the Council delegates in the s 150 hearing on 14 October 2019 and to the HCCC investigators in the s 34A interview on 28 November 2019, again in an attempt to establish that she had complied with her obligation to inform the pharmacists of the conditions that had been imposed. That conduct was both improper and unethical: Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 at [104]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [73].
The Tribunal concludes that the practitioner failed to observe the standards of ethical conduct expected of a person in her position, both as a registered pharmacist and as a proprietor pharmacist, and as such her conduct as alleged in Complaint One was both improper and unethical, and was unsatisfactory professional conduct under s 139B(1)(l) of the National Law.

Whether the practitioner is guilty of professional misconduct

Complaint Three is that the practitioner is guilty of professional misconduct, defined in s 139E of the National Law, relying on Particulars 1 and 2 of Complaint One individually and cumulatively, and in the alternative, when two or more of the particulars of Complaint Two are taken together.
As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264.
The practitioner submits that the conduct admitted in relation to Complaints One and Two would not justify a finding of professional misconduct, while conceding that the conduct particularised in particular 1 of Complaint One is the strongest element in that complaint. The practitioner submits that the conduct in storage of the Gardasil at her home would not warrant a finding of professional misconduct, and that she had no intention to supply it to anyone without a prescription. The practitioner submits that she has acted with honesty and integrity, pointing to her telephone call on 10 August 2018 to ask for advice about storage of the Gardasil at her home.
The HCCC submits that the admitted forgery alone would justify a finding of professional misconduct, as would a finding that the practitioner obtained the Gardasil intending to supply it to Mr Mak in circumstances where he did not have a valid prescription, he was not a medical practitioner, and the practitioner knew he intended to supply it to Chinese nationals and international students.
The Tribunal considers that the conduct found as proven in Complaint One, both in forging the signatures of her employed pharmacists on documents in an attempt to demonstrate that she had complied with condition 6 imposed on her registration, and in misleading the Council delegates and the HCCC investigators in her evidence at the 2019 s 150 hearing and s 34A interview relating to whether she had informed those pharmacists of the conditions, is unsatisfactory professional conduct of a sufficiently serious nature as to justify suspension or cancellation of the practitioner's registration. That conduct is professional misconduct as defined in s 139E of the National Law.

What if any disciplinary orders should be made

The HCCC sought the following orders: 1. The practitioner's registration is cancelled pursuant to s 149C(1)(b) of the National Law; 2. The practitioner cannot apply for registration for a period of 5 years pursuant to s 149C(7) of the National Law; 3. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law, the practitioner is prohibited from supplying or authorising the supply of any scheduled products and from providing health services permanently unless and until the Tribunal makes a reinstatement or other order in relation to the practitioner under s 163B of the National Law; 4. Pending further order and pursuant to s 165L(1) of the National Law the respondent is prohibited from supplying or authorising the supply of scheduled products.

Interlocutory order

The power to make an interlocutory order in the terms of proposed order 4 is conferred by s 165L(1) of the National Law, which is contained in subdivision 4 (Inquiries and appeals before Tribunal (NSW)) of Division 10 of Part 8 (Health, performance and conduct) of the National Law: 165L Interlocutory Orders (NSW) (1)The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand. … (3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if - (a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest.
Section 149A of the National Law provides: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. …
As discussed in Health Care Complaints Commission v Serafin [2021] NSWCATOD 11 (Serafin) at [50], there are no particular factors specified in the National Law that the Tribunal is required to take into account in deciding whether to, or not to, exercise the discretion to make interlocutory orders under s 165L. In deciding whether to exercise that discretion, the Tribunal must take into account the objects of the National Law, and give paramount consideration to the health and safety of the public: National Law, s 3A. In Health Care Complaints Commission v Chen [2018] NSWCATOD 58, concerning the exercise of the power conferred by s 165L(3) to impose an interim suspension, the Tribunal observed (at [26]) that the discretion granted to the Tribunal by s 165L can be exercised at any time during the proceedings, and the power is not limited to exercise at completion of certain stages of the proceedings.
The practitioner's registration was suspended by the Council on 14 October 2019. That order has effect until the complaint is disposed of: National Law, s 150(2). It is not clear on what basis the Tribunal could exercise the power conferred by s 149A(1)(b) of the National Law to impose a condition on the practitioner's registration to prohibit supply of scheduled products when her registration is currently suspended. In any event, even if that power were available, the Tribunal is not persuaded that any purpose would be served in exercising the power conferred by s 149A(1)(b) of the National Law on an interlocutory basis. In Serafin the Tribunal imposed conditions on the respondent pharmacist's registration prohibiting the supply, dispensing or compounding of specified products, at a time when the proceedings were part-heard and a further two days of hearing was listed some months later. In contrast, evidence and submissions as to both stages 1 and 2 in the present proceedings have concluded, and the appropriate course is to proceed to determination of the proceedings. The Tribunal declines to make the order sought.

Proposed protective orders 1, 2 and 3

In addition to the powers conferred by s 149A of the National Law, as a consequence of the finding that the practitioner is guilty of professional misconduct, the Tribunal may suspend her registration for a specified period, or cancel her registration: National Law, s 149C(1)(b). If the Tribunal cancels her registration, it may specify the period before which she can seek review of the order, and apply for a reinstatement order under s 163B: National Law, s 149C(7).
Section 149C(5) of the National Law provides: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
The HCCC submits that those orders are necessary to protect the public, and that there is a need for general deterrence. The practitioner is an experienced pharmacist, and her personal circumstances are no excuse. The practitioner did not take appropriate steps to manage her personal circumstances so as to ensure that she prioritised her obligations as a registered pharmacist. She delegated responsibilities to her employed staff, and took opportunities for commercial gain with no regard for the safety of the public. The HCCC submits that the Tribunal can have no confidence that the practitioner would comply with any further conditions on her registration. There are significant issues concerning her character and competence as a pharmacist, and there is no evidence of any steps taken in rehabilitation.
The practitioner submits that her personal circumstances outweigh any need for specific deterrence, and regard should be had to her charitable work. The Tribunal can have confidence that the practitioner would benefit from working as an employed pharmacist. She has already been suspended for two and a half years, and instead of cancellation, the Tribunal should consider a further period of suspension. If her registration is cancelled, to require a period of five years before reinstatement would be excessive and unfair, and a period of one year would see the Gordon pharmacy sold.

Discussion and findings

The power to make any of the orders specified in s 149A and s 149C is protective rather than punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: 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 (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
The Tribunal does not accept the practitioner's submission that the period during which her registration has already been suspended is relevant to the question of general or specific deterrence. Such an approach would not be consistent with the purpose of the disciplinary powers of the Tribunal, which is not to punish the practitioner but rather to protect the public and maintain proper professional standards: Health Care Complaints Commission v Saab (No 2) [2021] NSWCATOD 137 at [71].
While the Tribunal has found that the practitioner is guilty of professional misconduct, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. Whether or not the misconduct is sufficiently serious to warrant cancellation or suspension depends on the circumstances of the individual case. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [10] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the proper purposes of such an order".
Applying those principles to the consideration of whether to make any, and if so, which, of the orders sought by the HCCC, the Tribunal has had regard to the seriousness of the practitioner's misconduct; the risk to the health and safety of the public if she is permitted to remain in practice; and has considered whether or not the Tribunal can have confidence that she would comply with any conditions imposed on her practice.
The Tribunal regards the practitioner's misconduct as extremely serious. Not only did she fail to comply with the conditions imposed on her registration in 2018 under s 150 of the National Law on a finding by the Council delegates that she posed a risk to the safety or health of the public (ex A5), but she forged documents intended to persuade the Council that she had complied, and provided misleading information to Council delegates and to the HCCC investigators when responding to a complaint arising from her non-compliance. That conduct was a significant failure to maintain the honesty and integrity required for the proper functioning of the regulatory framework.
The obligations imposed on a proprietor pharmacist were considered by the Tribunal in Health Care Complaints Commission v Saab [2019] NSWCATOD 179: 321. The PTGR sets out stringent statutory requirements in relation to the storage, handling and record keeping for drugs of addiction. These Regulations exist to manage and address the risks to patients and the public more broadly in dispensing drugs of addiction. Guidelines for Proprietor Pharmacists issued by the Pharmacy Board of Australia (December 2010 and reissued in more detail in September 2015) focus on the professional responsibilities of proprietor pharmacists that impact on the safe, effective delivery of services to the public to ensure that the pharmacy business is conducted properly. The Board's guidelines exist to provide guidance to pharmacy proprietors not specifically set out in legislation. 322. As the National Law emphasises, protection of the public is paramount. Therefore there is coherence to the protective objects of the National Law, individual statutory requirements that might apply under the PTGR legislation and guidelines as they relate to the standard of oversight that a proprietor is expected to give to the pharmacies in which they hold a pecuniary interest. 323. A pharmacist who is a proprietor must maintain and be able to demonstrate an awareness of the manner in which their pharmacy business is being conducted and, where necessary, intervene to ensure that the practice of pharmacy is conducted in accordance with applicable laws, standards and guidelines. A failure to be attentive as to whether statutory requirements, standards and guidelines are being adhered to diminishes this protective structure. … 332. Pharmacists act as our guardians in the community in the responsible and lawful dispensing of Schedule 8 medications and drugs of addiction. It is their compliance with the protective structures to which the Regulations and Guidelines are directed which ensure the safe benefits of such medications to individual patients and the community as a whole. …
The practitioner stated in her affidavit that she had had time to think about her lack of judgment and would never engage in similar behaviour again. She stated that she is ashamed of the allegations. In oral evidence the practitioner stated that she regrets what she did and wants to be a better person, and having sold the pharmacies can concentrate on being a pharmacist. The Tribunal does not accept, however, that the practitioner has demonstrated sufficient insight into her conduct such that it could be confident that if allowed to continue in practise she could be trusted to uphold appropriate standards and practise competently, in the interests of safe and effective delivery of services to the public, for the following reasons.
The practitioner has expressed some remorse for her conduct, stating in her affidavit that she is sincerely apologetic for the forgery, the breach of condition and for misleading the Council, and that she regrets her actions. While the practitioner was prepared to accept in cross examination that aspects of her conduct were inappropriate, including allowing Ajay Sharma and the intern to have keys to the pharmacy, her primary focus in responding to Complaint One was to excuse her conduct by reference to her concern for her father's health, and to point to the difficulties in her personal life. Asked why she considered that not telling the pharmacists for 14 months about the conditions was consistent with her obligations as a proprietor pharmacist to ensure proper management of the pharmacy, the practitioner said she had not set foot in the pharmacy, had tried to put things in place by asking the intern and pharmacist to look after the pharmacy, and that since the pharmacy was under the Priceline banner there were guidelines and regular reporting and meetings. That attitude is contrary to the requirement as proprietor pharmacist that she not delegate her professional obligations, even if not regularly present in the pharmacy, as stated in section 2 of the Guidelines for Proprietor Pharmacists.
The practitioner submits that it is in her favour that she telephoned on 10 August 2018 for advice about storage of the Gardasil. However the file note of the conversation (ex A1, tab 4) records that that call was prompted by her having been contacted by the new owners of the Marrickville pharmacy reporting a query as to why the Gardasil records were in the pharmacy dispensing program when the stock had not been dispensed. Similarly, it was not until the Council inspector attended the Gordon pharmacy in September 2019 on a routine inspection that the pharmacists in charge became aware of the conditions on the practitioner's registration, and so the failure to notify them is not mitigated by having done so after the inspection.
The Tribunal regards the practitioner's previous disciplinary history as relevant in informing an understanding of the practitioner's attitude to her professional obligations, including as to the standards of ethical and trustworthy behaviour expected of a registered health practitioner, and an assessment of the prospects of future compliance with any conditions or restrictions on her practice.
As noted above, documents providing details of those previous disciplinary actions are in evidence, namely the reasons for decision for the Pharmacy Council of NSW Inquiry 15 May 2017 (ex A4), and the reasons for Decision in Pharmacy Council of NSW Proceedings under s 150 National Law 27 July 2018 (ex A5), and the reasons for decision in the Council's 2019 s 150 proceedings resulting in the suspension of the practitioner's registration (ex A1, tab 16).
By way of background, the practitioner's pharmacies in Marrickville, Castle Hill and Gordon were identified in 2015 as part of an investigation by the Pharmaceutical Services Unit (PSU) into supply by retail of S2 medicines, including Rhinocort® hayfever nasal spray 32 micrograms (budesonide); SM 33® oral gel (lignocaine); Combantrin® chocolate squares 24 (pyrantel) and Proctosedyl® ointment 30g (cinchocaine/hrdrocortisone). Quantities of those products well in excess of the normal expected retail quantities were being sold by both wholesale and retail transactions through the practitioner's pharmacies. During the period 1 July 2014 to 29 May 2015 each of the pharmacies had increases in turnover attributable to significant volumes of products (both scheduled and non-scheduled) sold to individuals mainly of Chinese origin for the purpose of resale after export in the Chinese market.
The focus of the Council Inquiry into a complaint made on 31 March 2017 of unsatisfactory professional conduct was the S2 and S3 products sold through the practitioner's three pharmacies. Following a hearing on 15 May 2017, in its reasons for decision on 23 June 2017 the Council delegates described the practitioner's business model, which was from July 2014 to increase turnover and script volumes by making available at wholesale or heavily discounted prices pharmacy products to Chinese tourists and students who would resell the products on return to China. The business started with baby formula, vitamins and skin care products and grew to include S2 and S3 medicines in large quantities; and included volumes of stock sold to Vietnamese customers through the "Pack-and-Send" service from the Savemore Marrickville pharmacy. At one point the practitioner's pharmacies ordered more than 30,000 units of Rhinocort® nasal spray which was 1.5 times the normal monthly demand for the entire Australian market, a consequence of the volume of purchases being that they went out of stock regularly.
The Council found: 1. During 2014-2015 the practitioner supplied S2 and S3 products to a Mr Chen who had an online business in China, despite not having a wholesale licence, and aware that the products were exported to China and taking no responsibility for where or for what use the products would eventually be resold. The practitioner allowed the wholesale bulk supply of S2 and S3 medicines for therapeutic use to a person knowing that they would be used outside Australia in contravention of s 130(b) of the PTG Act; 2. The practitioner supplied medicines from a pharmacy operating in the Bardwell Medical Centre which was not eligible for a Pharmaceutical Benefits Scheme (PBS) Approval Number as PBS benefits, later cancelling the prescriptions from that pharmacy and re-processing and claiming those items through her PBS approved Gordon pharmacy; 3. The practitioner delayed in providing wholesale purchase records as required by a condition imposed under s 150 of the National Law on 9 October 2015, and when provided, the information was incorrect and misleading; 4. The practitioner's responses during the Inquiry demonstrated a poor current understanding of clinical issues; 5. The practitioner's practice as a proprietor pharmacist fell well short of expectations in the Pharmacy Board of Australia Guidelines for Proprietor Pharmacists; she was unable to demonstrate an appropriate awareness of the manner in which the pharmacy business was conducted, failed to intervene to ensure the practice of the pharmacy was conducted in a safe and legal manner, and failed to provide procedures, leadership, supervision and direction for her staff.
The Council delegates concluded: 53. Having found that (a) the driver for Ms Nguyen's decisions regarding her practice was commercial gain alone and that she paid little (or no) regard to guidelines and legislation concerning the practice of pharmacy in making her decisions in relation to pharmacy practice over the period of the complaint, and (b) provided false and misleading information to the Council in the course of the complaint, we find Ms Nguyen to have engaged in improper and unethical conduct.
On that basis the delegates concluded that the practitioner was guilty of unsatisfactory professional conduct, reprimanded her, and imposed the conditions summarised at [4] above.
The reasons for decision for the proceedings under s 150 of the National Law heard on 27 July 2018 (ex A5) state that on 16 February 2018 the Council was notified by the Ethics Centre that due to the practitioner's lack of engagement the ethics program in which she was enrolled, as required by the conditions on her registration, had been suspended for 6 months. The practitioner attended an interview with delegates of the Council regarding her compliance with conditions and to discuss the suspension from the ethics program. The practitioner was informed that if she failed to supply further information within a specified time frame, or fail to comply with any condition on her registration, further action would be taken by the Council. On 11 July 2018, having noted that the practitioner had failed to submit reports as required by the conditions on her registration, the Council decided to conduct proceedings under s 150 of the National Law. The hearing was held on 27 July 2018.
In the reasons for decision the Council delegates noted that there had been multiple previous complaints relating to the practitioner, with various outcomes which included a referral to Medicare for allegations of PBS fraud; the Council Inquiry which resulted in the finding of unsatisfactory professional conduct in 2017; multiple instances of non-compliance with conditions within the timeframe specified; multiple instances of not providing information in a satisfactory or specified format; and multiple instances of not providing requested information with the specified timeframe.
The delegates discussed the non-compliances with the practitioner, concluding that she had acknowledged that she had not always been compliant and transparent with the Council. The practitioner informed the delegates that she anticipated re-engaging with the ethics course in early September 2018. She informed the delegates that her circumstances had changed, having recently sold the Savemore pharmacy which meant she had only one pharmacy to manage and would only be working three days a week in a managerial role.
The delegates concluded that there were public interest and public safety concerns warranting a restriction of the practitioner's practice while matters were subject to on-going consideration by the HCCC, and that the current conditions on her registration should remain in place. The delegates considered that it would not be in the public interest to suspend her registration, as that would mean her obligation to meet the conditions would cease and the monitoring of sales in the pharmacy and the auditing would also cease; the satisfactory completion of the ethics program was of equal importance. The delegates stated that not allowing the practitioner to practise as a pharmacist would afford her the time to meet her commitment to the conditions already in place particularly in regard to the ethics program. The conditions summarised at [7] above were imposed in addition to the conditions previously imposed.
The proceedings under s 150 of the National Law which resulted in the decision of 14 October 2019 to suspend the practitioner's registration were initiated in response to the Council becoming aware that the practitioner had not notified the registered staff in her pharmacy of the conditions imposed in 2018, and that the documents provided by her were signed by her. The delegates found: 22. It is clear, and Ms Nguyen herself acknowledges, that she has not been compliant with her conditions and she wilfully forged the signatures of registered pharmacists on a document to be submitted to a statutory body. Further, she has a long history of complaints and non-compliance issues. It cannot be accepted that Ms Nguyen has the necessary standard of practice, knowledge and understanding to ensure the public's health and safety are protected.
In explaining the decision to suspend the practitioner's registration, the delegates referred to the responsibility of the Council to ensure the public has confidence that practitioners deliver effective regulated health services in an ethical framework, that the public confidence in the profession would likely be seriously undermined if a practitioner found to be non-compliant with conditions was permitted to continue to practise, and the need to maintain public trust.
The Council delegates concluded their reasons with the statement: 34. We are of the view that given the extent of the issues that the Council has dealt with in relation to Ms Nguyen and the conditions that have previously been imposed upon her registration, seemingly to no avail, Ms Nguyen's registration should be suspended.
The practitioner was questioned at the Tribunal hearing about the previous disciplinary actions and findings. In response to the findings of the 2017 Inquiry, the practitioner stated that the Savemore pharmacy had been managed by her ex-husband, who was not a pharmacist; she had not calculated the extent of the orders for Rhinocort® nasal supply, while acknowledging that gaps in local supply could have put public health and safety at risk; and that the delays and provision of incorrect information to the Council were because Ajay had sent the wrong information. Asked to comment on the previous numerous breaches referred to in the 2018 proceedings, the practitioner stated it was not only her, but others had made things bad for her. She blamed the dispensing of non PBS prescriptions without a PBS authority at the Bardwell pharmacy on a pharmacist who worked there.
In the Tribunal's view the disciplinary findings made in 2017, 2018 and 2019 reflect ongoing issues over several years with the practitioner's integrity and truthfulness; a deficiency in her understanding of the requirements of ethical conduct expected of a registered health professional, in particular as proprietor of a pharmacy; and in her understanding of and willingness to comply with her legal and regulatory obligations. On each occasion, the practitioner is recorded as having expressed remorse and apologies for her conduct and an intention and willingness to comply. However, as noted by the Council delegates in the decision of 14 October 2019 at [30], while expressing sorrow regarding her transgressions, "it was patently demonstrated that she has learnt very little from previous proceedings with the Council, regardless of the conditions that have been placed on her registration".
The Tribunal agrees with the assessment of the Council delegates in 2019 that the practitioner has appeared to have learned little from the previous disciplinary proceedings. She has professed remorse, and agrees that as proprietor pharmacist she has ultimate responsibility for management of the pharmacies which she owns. She has stated that her circumstances have changed since her divorce and the former issues with her ex-husband and the employee of the Savemore pharmacy who had stolen money from her pharmacy. However, in her evidence to the Tribunal the practitioner continued to deflect blame on to others: an example being that she thought Mr Phan and the intern would look after rectifying the non-compliance of the Gordon pharmacy safes noted at the inspection on 17 September 2019.
The character references on which the practitioner relied speak highly of her discipline, hard work, honesty and care for her customers; and her charity work in the Vietnamese community, including her involvement in orphanages in Cambodia and in aged care for the Vietnamese community. However, none reflect any knowledge of the practitioner's previous disciplinary proceedings, or of the details of the complaint in the present proceedings. Only the reference provided by Mr Ajay Sharma, store manager of the Gordon pharmacy, refers to his knowledge of the condition restricting the practitioner from practising as a registered pharmacist. Mr Sunny To was not aware that the practitioner's registration had been suspended in 2019, and was not aware of the conditions previously imposed on her registration. The Tribunal gives those character references minimal weight.
The conduct alleged and found proven in the complaint the subject of these proceedings reflects a failure by the practitioner to maintain the high level of professional competence and ethical conduct expected of a registered pharmacist, in particular a proprietor pharmacist. The Tribunal has no confidence that the practitioner understands the seriousness of her conduct which might diminish the likelihood of its repetition, and has no confidence that if allowed to continue in practice she would ensure compliance with her ethical and regulatory obligations. If a period of suspension from practice were imposed, the practitioner would be entitled to be re-registered at the end of that period, regardless of whether there had been any change in her understanding of or commitment to comply with her ethical and regulatory obligations. Having regard to the need to protect the public from both possible future misconduct by the practitioner, and similar misconduct or incompetence of other practitioners, as well as the need to uphold public confidence in the standards of the profession, the Tribunal concludes that the appropriate order is that the practitioner's registration be cancelled.
In considering what if any period should be specified pursuant to s 149C(7) of the National Law before the practitioner can seek a review, the Tribunal notes that the purpose of such an order is that it sets a minimum period within which the practitioner should not be able to practise her profession, thus sending a message to her, to the profession, and to the public, about the seriousness of her conduct. It also holds open to the practitioner the possibility that she may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time: Chen v Health Care Complaints Commission [2017] NSWCA 186.
The HCCC submits that while it initially sought a period of 1-2 years, having regard to the significant issues as to the practitioner's character and competence as emerged during the hearing, a period of five years would be warranted.
The practitioner submits that any such period should be short, having regard to the practitioner's financial position, and mitigating factors including her charitable work. The practitioner's evidence was that she has significant debts in the order of $400,000 and the Savemore wholesale business is now under administration.
The practitioner's current business and professional circumstances were the subject of evidence before the Tribunal. Concerning the sale of the Gordon pharmacy, the position as at the date of the Tribunal hearing was that: 1. The Offer to Purchase Priceline Pharmacy Gordon signed on 5 January 2021 named Mr To as purchaser, with a settlement date of 27 April 2021 (ex R4); 2. The Contract for the sale of business signed on 27 April 2021 names Canada Bay Pharmacists Pty Ltd as purchaser, and Mr John Obeid and Mr To as Directors, both of whom also signed as purchaser's guarantors; 3. The application for change of ownership of the Gordon pharmacy was approved by the Council on 8 October 2021, with the Register of pharmacies to be updated once the sale is completed (ex A10).
The practitioner's oral evidence initially was that she had not mentioned the sale in her affidavit because the pharmacy had been sold in August 2020, to Mr To. However, Mr To made no mention in his character reference to his involvement in the purchase, and stated in his oral evidence that he is no longer involved and continues to help only as a mentor to one of the purchasers, and does not have an interest in Canada Bay Pharmacists Pty Ltd.
Evidence as to the practitioner's interest in Savemore Wholesale emerged only during the course of the hearing. In oral evidence the practitioner stated that the business had suffered with Covid restrictions, and currently makes small sales to local gift shops, however she did not disclose that Savemore Wholesale Pty Ltd is in voluntary administration, as at 15 April 2021 (ex R6). Ultimately her evidence was that the business has significant debts in the order of $400,000; and she will try to re-open it once Covid restrictions are lifted.
While no complaint is brought in relation to the practitioner's having an interest in the wholesale business, and her position is that she does not need a wholesale licence to sell non-scheduled items, there is a potential for harm in large scale transactions for products such as vitamins. The Tribunal has concerns that the practitioner has been less than frank and forthcoming in her evidence, and that as a consequence the Tribunal does not have a complete and consistent understanding of the likelihood of any risk to public health and safety arising from a continuation of the business activities that were the subject of criticism in the previous disciplinary proceedings.
Having regard to the purposes served by any order made under s 149C(7), the Tribunal gives little weight to the practitioner's personal circumstances, including her financial circumstances. The question is what period is required for the proper protection of the community, and for the practitioner to be in a position to demonstrate the changes required in an application for a reinstatement order. Without diminishing the seriousness of the practitioner's misconduct, and the limited remorse and insight demonstrated so far, the Tribunal is of the view that a period of five years would go further than is required for the proper protection of the community and the proper purposes of such an order. The practitioner would need to demonstrate in any application for a reinstatement order so that she may be re-registered, that she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and in a way that presents no risk to the safety of the public and their confidence in the profession: Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13. On the evidence before the Tribunal some time is likely to be needed, that would take into account her conduct in the intervening period. The Tribunal considers that disqualification for a period of 2 years would strike the balance referred to in Chen.
The HCCC also seeks an order under s 149C(5) of the National Law, in the following terms: Pursuant to s 149C(5) of the Health Practitioner Regulation National Law, the practitioner is prohibited from supplying or authorising the supply of any scheduled products and from providing health services permanently unless and until the Tribunal makes a reinstatement or other order in relation to the practitioner under s 163B of the National Law.
The term "health service", as referred to in s 149C(5), is defined in s 5 of the National Law: health service includes the following services, whether provided as public or private services - (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services.
The practitioner did not oppose an order prohibiting her from supplying scheduled products if the non-review period was short. The HCCC submitted that a prohibition order is needed due to concerns for the practitioner's ongoing conduct.
The Tribunal must be satisfied that the practitioner poses "a substantial risk to the health of members of the public". That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75].
The Tribunal has had regard to the long record of ongoing issues with the practitioner's integrity and truthfulness, her limited understanding of what ethical conduct is required of a registered health professional and as a pharmacy proprietor, and shortcomings in her willingness to comply with her legal and regulatory obligations, as demonstrated in the previous disciplinary proceedings. There is uncertainty as to the nature and extent of the practitioner's likely future commercial activities. Her character references attest to the high regard in which the practitioner is held in her community; and the Tribunal has concerns that there is a risk that she could, depending on the nature and extent of her future commercial activities, or if she obtained employment in a pharmacy environment as a pharmacy or dispensary assistant, be in a position to influence others' health care decisions by reason of her pharmacy background. The Tribunal is satisfied that the practitioner poses a substantial risk to the health of members of the public should she engage in provision of health services of the kind defined in s 5 of the National Law. The Tribunal considers that it is appropriate that a prohibition order should be made, but on a more limited basis than that proposed by the HCCC.

Costs

The HCCC seeks an order for its costs of the proceedings.
The practitioner opposes a costs order, submitting that she is a single mother, is in financial hardship, and has been unable to practise as a pharmacist for some two and a half years.
The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. The financial circumstances of the practitioner are not relevant to whether a costs order should be made: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. While the HCCC was not successful in establishing that all the complaints were proven, the complaints of unsatisfactory professional conduct and professional misconduct were established. There is no disentitling conduct as on the part of the HCCC in how it conducted the proceedings. It is appropriate to order that the practitioner pay the costs of the HCCC, in the usual form, that is as agreed or assessed.

Orders

The orders of the Tribunal are: 1. The respondent is guilty of unsatisfactory professional conduct as defined in s 139B(1)(c) and (l) of the Health Practitioner Regulation National Law (NSW) and professional misconduct as defined in s 139E of the Health Practitioner Regulation National Law (NSW); 2. The respondent's registration is cancelled pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW); 3. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), the respondent cannot make an application for review under Division 8 for a period of 2 years from the date of these orders; 4. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), the respondent is prohibited from supplying or authorising the supply of any scheduled products and from providing health services of a kind provided by registered health practitioners or pharmaceutical services, unless and until the Tribunal makes a reinstatement or other order in relation to the practitioner under s 163B of the Health Practitioner Regulation National Law (NSW); 5. The practitioner is to pay the Health Care Complaints Commission's costs of these proceedings pursuant to clause 13(1) of Schedule 5D of the Health Practitioner Registration National Law (NSW) as agreed or as assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2022

Health Practitioner Regulation (New South Wales) Regulation 2016(NSW)

Health Care Complaints Commission v Serafin [2021] NSWCATOD 11 Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: Pharmacy Board of Australia Code of Conduct for Pharmacists (March 2014) Pharmacy Board of Australia Guidelines for Proprietor Pharmacists (September 2015) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) My-Trang Nguyen (Respondent) Representation: Counsel: A Petrie (Applicant)

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