Health Care Complaints Commission v Nguyen [2025] NSWCATOD 121;

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 --

...

(l) Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

1. Section 139E of the National Law reads as follows:

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.

1. The Commission submitted that the relevant principles in dealing with s 139B(1)(l) include the following:

(1) the words "improper" and "unethical" are not defined in the National Law so the Tribunal has considered their dictionary meanings: improper relevantly means not right or not in accordance with propriety of behaviour and unethical relevantly means contrary to moral precept, immoral or in contravention of some code of professional conduct: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]- [52];

(2) the relevant ordinary meanings of improper include not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53];

(3) in professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54];

(4) it is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as failing below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [55];

(5) whether conduct is improper is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54];

(6) to make a finding of improper or unethical conduct, it is not necessary for the Tribunal to be satisfied that the conduct is intentional: improper conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [19] - [21];

(7) impropriety does not depend on the practitioner's consciousness of impropriety, it consists in a breach of the standards of conduct that would be expected of a person in the position of the practitioner by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case: Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47];

(8) codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession (s 41 of the National Law) and may be relevant to whether conduct is improper or unethical.

1. In our view, that submission satisfactorily covers the relevant principles to be applied in this case.

1. The Respondent was first registered as a pharmacist on 20 January 2017.
2. The Respondent worked as a pharmacy manager during the period of the complaint at Chemist Warehouse Nowra Junction Street between April 2018 and June 2022, at Chemist Warehouse Bankstown between June 2022 and April 2023, and at Chemist Warehouse Punchbowl between April 2023 and August 2023.
3. On 20 September 2023, her employer initiated a complaint via a mandatory notification for professional misconduct by reason of unlawful dispensing to the Commission. The notifier alleged that between 22 March 2022 and 11 August 2023 the Respondent had dispensed Diazepam tablets to herself and members of her family without a prescription which, it was alleged, placed the public at risk of harm because the practitioner had practised the profession in a way that constitutes a significant departure from accepted professional standards. This conduct was discovered during an audit of the pharmacy records and the Respondent's employment was immediately terminated.
4. Following the complaint, the Pharmaceutical Regulatory Unit ("the PRU") initiated an investigation and a detailed report was provided.
5. In October 2023, delegates of the Pharmacy Council of NSW ("the Council") conducted s 150 proceedings under the National Law in relation to the Respondent's conduct and the delegates of the Council were satisfied that it was appropriate that the Respondent's registration be suspended with effect from 5 October 2023.

1. The first complaint of unsatisfactory professional conduct as defined in s 139B(1)(l) concerns the conduct of the Respondent dispensing to herself, family members, a colleague and unknown persons various medications without prescriptions and making false records in relation to her conduct.

Particulars of Complaint One

Self-dispensing

1. Between 22 March 2022 and 4 July 2023, at Chemist Warehouse Bankstown and Chemist Warehouse Punchbowl, the practitioner dispensed drugs to herself in the quantities and on the dates set out in Schedule B, in circumstances where:

a. the Schedule 4D drugs were dispensed without a corresponding prescription, contrary to clause 39(1) of the Poisons and Therapeutic Goods Regulation 2008 NSW ("PTGR") and section 16(1) of the Poisons and Therapeutic Goods Act 1966 NSW ("PTGA").

...

2. Between 26 May 2022 and 4 May 2023, at Chemist Warehouse Bankstown and Chemist Warehouse Punchbowl, the practitioner dispensed drugs to herself in the quantities and on the dates set out in Schedule B, in circumstances where:

a. the Schedule 4 drugs were dispensed without a corresponding prescription, contrary to the Standard for the Uniform Scheduling of Medicines and Poisons ("SUSMP") (namely clause 3.4 of Part 3 of the Poisons Standard February 2022, the Poisons Standard June 2022 and the Poisons Standard October 2022 then section 60 of the Poisons Standard February 2023) and section 10(3) of the PTGA.

b. false records of the script and prescriber were recorded by the practitioner in the Patient Health Summary contrary to clause 177(1) of the PTGR.

Family Member A

3. Between 29 December 2022 and 10 August 2023, at Chemist Warehouse Bankstown and Chemist Warehouse Punchbowl, the practitioner dispensed a Schedule 4D drug to Family Member A in the quantities and on the dates set out in Schedule B, in circumstances where:

a. the Schedule 4D drug was dispensed without a corresponding prescription contrary to clause 39(1) of the PTGR.

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary and SafeScript NSW records contrary to clause 177(1) of the PTGR.

Family Member B

4. Between 22 March 2022 and 23 February 2023, at Chemist Warehouse Bankstown and West Terrace Bankstown Pharmacy, the practitioner dispensed Schedule 4D drugs to Family Member B in the quantities and on the dates set out in Schedule B, in circumstances where:

a. the Schedule 4D drugs were dispensed without a corresponding prescription, contrary to clause 39(1) of the PTGR.

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary and SafeScript NSW records contrary to clause 177(1) of the PTGR.

5. On 7 April 2022, at Chemist Warehouse Bankstown, the practitioner dispensed a Schedule 4 drug to Family Member B, in the quantity and on the date set out in Schedule B, without a corresponding prescription, in circumstances where:

a. the Schedule 4 drug was dispensed without a corresponding prescription, contrary to the SUSMP (namely clause 3.4 of Part 3 of the Poisons Standard February 2022).

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary contrary to clause 177(1) of the PTGR.

Family Member C

6. Between 11 May 2022 and 30 July 2023, at West Terrace Bankstown Pharmacy, Chemist Warehouse Bankstown and Chemist Warehouse Punchbowl, the practitioner dispensed Schedule 4D drugs to Family Member C, in the quantities and on the dates set out in Schedule B, in circumstances where:

a. the Schedule 4D drugs were dispensed without a corresponding prescription, contrary to clause 39(1) of the PTGR.

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary and SafeScript NSW records contrary to clause 177(1) of the PTGR.

Family Member D

7. Between 1 February 2023 and 11 August 2023, at Chemist Warehouse Bankstown and Chemist Warehouse Punchbowl, the practitioner dispensed Schedule 4D drugs to Family Member D, in the quantities and on the dates set out in Schedule B, in circumstances where:

a. the Schedule 4D drugs were dispensed without a corresponding prescription, contrary to clause 39(1) of the PTGR.

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary and SafeScript NSW records contrary to clause 177(1) of the PTGR.

8. On 11 August 2023, at Chemist Warehouse Punchbowl, the practitioner dispensed Schedule 4 drugs to Family Member D, in the quantities and on the date set out in Schedule B, in circumstances where:

a. the Schedule 4 drugs were dispensed without a corresponding prescription, contrary to section 60 of the SUSMP.

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary contrary to clause 177(1) of the PTGR.

Family Member E

9. On 10 August 2022, at Chemist Warehouse Bankstown, the practitioner dispensed a Schedule 4D drug to Family Member E, in the quantity set out in Schedule B, in circumstances where:

a. the Schedule 4D drug was dispensed without a corresponding prescription, contrary to clause 39(1) of the PTGR.

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary and SafeScript NSW records contrary to clause 177(1) of the PTGR.

Family Member F

10. On 15 January 2023, at Chemist Warehouse Punchbowl, the practitioner dispensed a Schedule 4D drug to Family Member F, in the quantity set out in Schedule B, in circumstances where:

a. the Schedule 4D drug was dispensed without a corresponding prescription, contrary to clause 39(1) of the PTGR.

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary contrary to clause 177(1) of the PTGR.

Person A

11. Between 11 May 2022 and 1 August 2023, at Chemist Warehouse Bankstown and Chemist Warehouse Punchbowl, the practitioner dispensed a Schedule 4D drug to Person A in the quantities and on the dates set out in Schedule B, in circumstances where:

a. the Schedule 4D drugs were dispensed without a corresponding prescription, contrary to clause 39(1) of the PTGR.

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary and SafeScript NSW records contrary to clause 177(1) of the PTGR.

12. On 10 April 2022, at Chemist Warehouse Punchbowl, the practitioner dispensed a Schedule 4 drug to Person A in the quantity set out in Schedule B, in circumstances where:

a. the Schedule 4 drug was dispensed without a corresponding prescription, contrary to the SUSMP (namely clause 3.4 of Part 3 of the Poisons Standard February 2022).

b. a false record of the script and prescriber was recorded by the practitioner in the Patient Health Summary contrary to clause 177(1) of the PTGR.

13. Particulars 5, 8 and 12 justify a finding of unsatisfactory professional conduct, in the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.

Unknown patient/s

14. Between 3 July 2022 and 11 August 2023, at Chemist Warehouse Punchbowl, the practitioner dispensed Schedule 4D drugs to patient/s listed as "Unknown Patient Unknown Patient" in the quantities and on the dates set out in Schedule B, in circumstances where:

a. the Schedule 4D drugs were dispensed without a corresponding prescription, contrary to clause 39(1) of the PTGR.

b. a false record of the script and prescriber was recorded by the practitioner in the SafeScript NSW records contrary to clause 177(1) of the PTGR.

Commission's Submissions in Relation to the First Complaint

1. The Commission submitted that the Respondent was responsible for safely dispensing drugs of the kind set out below at the pharmacies she worked at and was bound to comply with strict obligations applicable to the dispensing of those drugs:

(1) S4 drugs (Schedule 4 drugs) - a "restricted substance" means any substance specified in Schedule 4 of the Poisons List. Schedule 4 of the Poisons List contains substances which in the public interest should be supplied only upon prescription. At the relevant times, Schedule 4 drugs included:

(a) combination oral contraceptives: (active ingredient: Ethinyl estradiol/drospirenone, brand name: Yasmin and active ingredient: Drospirenone and ethinyl estradiol, brand name: Yaz);

(b) progestin: (active ingredient: norethisterone, brand name: Primolut);

(c) oral antibiotics: (such as active ingredient: cephalexin, brand name: Cephalexin (SZ) and active ingredient: amoxicillin, brand names Amoxycillin (Apo) and Amoxil);

(d) anti-emetics: (such as active ingredient: ondansetron, brand name: Ondansetron ODT and active ingredient: metoclopramide hydrochloride, brand name: Pramin);

(e) nonsteroidal anti-inflammatory medication: (active ingredient: meloxicam, brand name: Meloxicam (SZ));

(f) statin: (active ingredient: rosuvastatin, brand name Rosuvastatin (SZ));

(g) bisphosphonate: (active ingredient: riserdronate, brand name: Riserdronate sodium);

(h) corticosteroid: (active ingredient: triamcinolone acetonide, brand name: Tricortone).

(2) S4D (Schedule 4D drugs) - A "prescribed restricted substance" is a substance specified in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (PTGR). Additional restrictions apply to Schedule 4D drugs. At the relevant times, Schedule 4D drugs included:

(a) Benzodiazepine (such as active ingredient: Diazepam, brand names: Valium and Diazepam Apx and active ingredient: temazepam, brand name: Temtabs). Use of benzodiazepines can lead to physical and psychological dependence (even if used for short periods), tolerance and misuse. Common side effects include dependence, drowsiness, oversedation, light-headedness, hypersalivation, ataxia and slurred speech and effects on vision.

(b) Gamma-aminobutyric acid analog: (active ingredient: pregabalin, brand name: Lyrica). Common side effects include irritability, depression, impaired balance, lethargy, insomnia, constipation, muscle cramp and arthralgia.

(c) Opioid: (active ingredient: tramadol hydrochloride, brand name: Tramal SR). Common side effects include central nervous system stimulation, weakness, sweating, sleep disorder and rash.

(d) Anorectic: (active ingredient: phentermine, brand name: Metermine). Common side effects include overstimulation of the central nervous system, arrhythmia, tachycardia, hypertension, diarrhoea, vomiting, headache, rash, urinary frequency and facial oedema.

1. The Commission submitted that the evidence in respect of Particulars 1 and 2 establishes that:

(1) the Respondent dispensed medication to herself without prescriptions on 28 occasions over about 15 months (15 occasions of Schedule 4D drugs and 13 occasions of Schedule 4 drugs);

(2) the Respondent made false dispensing records (she entered purported prescribers into the CW dispensing records and/or entered purported prescribers and purported prescription dates into SafeScript records) in circumstances where she did not in fact have prescriptions;

(3) when interviewed by the PRU, the Respondent made some admissions, including that she dispensed medication in her name for herself without prescriptions (and suggested some medication was given to her sister or her pet);

(4) when interviewed by the Commission, the Respondent also made some admissions, including that:

(a) she was self-medicating;

(b) she took non-prescribed Valium 1-3 tablets daily, on and off;

(c) she took non-prescribed Temazepam, 1 tablet at night when needed;

(d) she would dispense medication under her own name in the dispensing system under "no prescriber", she didn't have a prescription so used a "dummy prescriber", she put blank "00" into the dispensing system and selected from the default prescriber names.

1. We are satisfied and find that the evidence establishes the matters set out above.

Particulars 3 - 9 - Dispensing to the Practitioner's Family Members

1. The Commission submitted that the evidence in respect of Particulars 3 to 9, complaints about dispensing drugs to family members, establishes the following:

(1) The Respondent dispensed medication to five family members (her sister-in-law (Family Member A), her husband (Family Member B), her sister (Family Member C), her husband's aunt (Family Member D) and her father-in-law (Family Member E) without prescriptions on 31 occasions over about 16 months (28 occasions of Schedule 4D drugs and 3 occasions of Schedule 4 drugs).

(2) The Respondent made false dispensing records (she entered purported prescribers into the CW dispensing records and/or entered purported prescribers and purported prescription dates into SafeScript records) in circumstances where she did not in fact hold prescriptions.

(3) When interviewed by the PRU, the Respondent made some admissions, including that she dispensed medication in the names of her family members without prescriptions (and suggested that when her family members asked for the medicines, she just provided them). She admitted dispensing Pregabalin to her aunt (Family Member D) on two occasions, without holding a prescription.

(4) When interviewed by the Commission, the Respondent also made some admissions, including that:

(a) she dispensed medication to "help" her family members;

(b) she gave medication to her family members, she self-diagnosed them, she thought "They were going through similar things at the time, a bit of mental problems...Mainly anxiety...";

(c) she offered to help her sister-in-law (Family Member A) who was apparently having some issues working overseas, a lot of anxiety, suicidal thoughts, the Respondent offered her the medication to help during her time overseas, the Respondent gave the medication to her sister-in-law without a prescription and without speaking to her treating doctor;

(d) the Respondent offered to help out her husband (Family Member B) who was apparently "feeling some stuff", a bit anxious, had trouble sleeping, the Respondent brought the medication home and gave it to her husband without a prescription and without speaking to his treating doctor;

(e) the Respondent offered to help her sister (Family Member C) who was apparently feeling a bit of anxiety and stress from work, the Respondent said, "This medication it kind of helps you calm down a bit of anxiety if you want to try", the Respondent was not aware of the Respondent's sister ever being prescribed that medication, the practitioner was not aware if her sister had a treating doctor and did not speak to any treating doctor. The Respondent also admitted that on 30 July 2023 she dispensed anoretic medication under the name of her sister (and suggested she gave it to her mother for weight loss);

(f) the Respondent dispensed Pregabalin to help her husband's aunt (Family Member D) for her nerve pain, without holding prescriptions, and dispensed Valium to her aunt without a prescription, apparently for a "bit of anxiety" because she was going overseas, and the Respondent did not speak to her aunt's prescriber.

1. We are satisfied and find that the evidence establishes the matters set out above.

Particulars 10 and 13 - Dispensing to Unknown Persons

1. The Commission submitted that the evidence in respect of the dispensing of Schedule 4D drugs to unknown persons establishes the following:

(1) the Respondent dispensed Schedule 4D drugs to unknown persons without prescriptions on 6 occasions over about 13 months. She also made 5 entries for "Unknown Patient" into SafeScript with a purported prescriber (another dummy prescriber) and purported prescription dates in circumstances where she did not in fact have prescriptions;

(2) the Commission has assumed that the Respondent is related to "Family Member F" because they have the same surname, the person has a similar first name to the Respondent's husband, the Respondent dispensed the same drug to herself on the same day and to her husband in the same week. The Respondent made one entry into the CW dispensing records under the name "Family Member F" with a purported prescriber (a dummy prescriber "Dr Bankstown Hospital") in circumstances where she did not in fact have a prescription;

(3) when interviewed by the Commission, the Respondent made some admissions, including that she put blank 00 into the dispensing system and selected from the default names (including Dr Bankstown) when it was for a non-prescription.

1. The Respondent has not challenged the assumptions relied upon by the Commission. We are satisfied, and find, that the evidence establishes the matters set out above.

Particulars 11 - 12 - Dispensing to the Respondent's Colleague

1. The Commission submitted that the evidence establishes that:

(1) the Respondent dispensed medication to her colleague (Person A), a CW casual staff member, without prescriptions on 10 occasions over about 15 months (9 occasions of Schedule 4D drugs and one occasion of a Schedule 4 drug);

(2) the Respondent made false dispensing records (she entered purported prescribers into the CW dispensing records and/or entered purported prescribers and purported prescription dates into SafeScript records) in circumstances where she did not in fact have prescriptions;

(3) on the last occasion, 1 August 2023, the Respondent was depicted on CCTV dispensing Tramadol without a prescription and handing it to Person A;

(4) when interviewed by the Commission, the Respondent made some admissions, including that she offered to help Person A, she gave Person A Tramadol, apparently for pain, without a script on 7-8 occasions, the Respondent offered to give it to her, the Respondent did not speak to Person A's treating doctor.

1. We are satisfied, and find, that the evidence establishes the matters set out above.

1. The Commission submitted that each of the Particulars referred to above, which have been established, justifies a finding of unsatisfactory professional conduct because the conduct was improper, or unethical conduct, particularly Particulars 1 - 4, 6 and 9 - 11 which involve conduct on multiple occasions. In the alternative, the Commission submitted that Particulars 5, 8 and 12, which are each about single occasions, taken together, justify a finding of unsatisfactory professional conduct.
2. The Commission then submitted that the Respondent's conduct was improper because it fell short of the standards of conduct expected of registered pharmacists and it was contrary to applicable legislation. A pharmacist:

(1) may only supply Schedule 4 drugs (including Schedule 4D drugs) with a prescription;

(2) must endorse all Schedule 4 prescriptions (including Schedule 4D prescriptions);

(3) must not supply any Schedule 4 drugs (including Schedule 4D drugs) in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard;

(4) must make and keep a record of the supply of all Schedule 4 drugs (including Schedule 4D drugs);

(5) must not make any entry in the record that the pharmacist knows to be false or misleading in a material particular;

(6) must only possess Schedule 4D drugs in the lawful practice of the pharmacist's profession.

1. Each of the submissions in paragraph [33] above are supported by one or more of the following, the Standard for the Uniform Scheduling of Medicines and Poisons, the Poisons Standard, s 10(3) of the PTGA, and clauses, 41, 54, 55, 176 of the PTGR. The provisions in those standards and provisions are onerous and must be complied with.
2. We are comfortably satisfied that the conduct on the part of the Respondent as particularised was improper for the reasons advanced by the Commission. The Respondent failed to comply with her obligations on numerous occasions and her conduct was well short of the standards expected of registered pharmacists and involved multiple contraventions of applicable legislative provisions.
3. The Commission further argued that the Respondent's conduct is also unethical because it is contrary to ethical standards, particularly in compliance with the Pharmacy Board of Australia Code of Conduct which includes provisions that practitioners have a duty to make care of patients their first concern and to practise safely and effectively and must be ethical and trustworthy.
4. It was argued, accordingly, that dispensing of Schedule 4D and Schedule 4 medication to herself and others without prescriptions and making false dispensing records to achieve her objective is improper and unethical conduct.
5. We are satisfied, and find, that the conduct on the part of the Respondent as established by the Particulars was both improper and unethical conduct.
6. We are therefore satisfied that Complaint One has been established as alleged.

1. This Complaint concerns the conduct on the part of the Respondent when she was confronted with the allegations of misconduct by officers of the PRU following the notification of the alleged conduct which we refer to above. The essence of the Complaint is that the Respondent stated during interviews that she did not know Person A, who was in fact one of her colleagues, a Chemist Warehouse casual staff member.
2. The Commission argues that the evidence establishes that:

(1) on 10 occasions over about 15 months, 9 occasions involving Tramadol and 1 occasion of a Schedule 4 drug the Respondent provided these drugs to Person A;

(2) on 26 September 2023, the Respondent attended the PRU interview and was questioned about her dispensing to Person A;

(3) the Respondent stated that she did not know who Person A was, she could not recall dispensing for her, and could not recall why she used a "dummy" prescriber number;

(4) the information provided to the officers was false or misleading because Person A was the Respondent's colleague and she had worked with her;

(5) the Respondent later admitted in an interview conducted by the Commission that she had been dishonest during the PRU interview. She stated amongst other things that she probably did not want her colleague to get in trouble at the time, and she was seeking to protect Person A. She acknowledged that she should have been completely honest;

(1) it is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities: Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [65]; Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [81]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [72]; Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 at [98]; Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151 at [67];

(2) practitioners should uphold the highest standards of honesty and integrity in their dealings with regulatory authorities: Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [72]; Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [81]; Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 at [97]; Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [71];

(3) the system of health regulation cannot achieve the paramount objective of protecting the health and safety of the public without the co-operative and candid involvement of health practitioners: Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [71];

(4) engaging with the professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional: Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [103];

(5) there are several examples where health practitioners who have provided false or misleading information to the professional regulators, such as the Council (see, Health Care Complaints Commission v Azizi [2016] NSWCATOD 94 at [71]; Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [76]; Health Care Complaints Commission v DAC [2017] NSWCATOD 98 at [120]; Health Care Complaints Commission v Cakan [2018] NSWCATOD 5 at [136]; Health Care Complaints Commission v Sun [2016] NSWCATOD 80 at [26]; Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103 at [96]; Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2 at [69]) or the Commission, (see: Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [73]; Health Care Complaints Commission v Kesserwani at ; at ; at ; at , [182]; at ; at ; at ) have been found to have engaged in improper and unethical conduct.

1. We are satisfied and find that the conduct the subject of Complaint Two was both improper and unethical under s 139B(1)(l) of the National Law and Complaint Two has been made out. The Respondent's conduct was incompatible with her obligations as required of a registered practitioner under the regulatory framework applicable to the profession of pharmacy.

1. The Commission relies on the same evidence as that supporting Complaints One and Two, which we have dealt with above, to complain that the Respondent engaged in professional misconduct.
2. Professional misconduct is a category of unsatisfactory professional conduct which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], [2017] NSWCA 186; [2017] 95 NSWLR 334.
3. The decision by the Tribunal requires a determination of whether the degree of seriousness is sufficient to warrant suspension or cancellation of a practitioner's registration and involves a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99].
4. In assessing the gravity of the conduct, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.

1. The Commission submitted that the Respondent's conduct in Complaint One, alone, or together with Complaint Two, is of a sufficiently serious nature to justify cancellation for the following reasons:

(1) The Respondent must have known the importance of dispensing medication supported by valid prescriptions. When her conduct started in March 2022 she had been registered as a pharmacist for over 5 years. The Respondent understood that a pharmacist must not supply a restricted substance on prescription unless the prescription provided was in the required form, as she acknowledged to the interview with the Commission.

(2) The Respondent must have known the importance of making accurate dispensing records, a requirement of the Code of Conduct applicable to her employment.

(3) The Respondent's self-medication posed a risk of harm as she had dispensed a total of 1,350 Diazepam tablets to herself over about a period of 15 months, dispensing to her family members and colleague posed a risk of harm as she had dispensed a total of 1,100 Diazepam tablets to her husband including at very close intervals. She had dispensed a total of 900 Diazepam tablets to her sister, again including on close intervals. She also had dispensed a total of 240 Tramadol tablets to her colleague including at close intervals. She dispensed Pregablin to her aunt in very large quantities.

(4) The Respondent understood the detrimental effects of dispensing medications to others without a registered medical practitioner prescribing them as she acknowledged to the Commission during an interview.

(5) The Respondent's conduct was extensive and extended to about 7 different people and involved the making of false records over a period of about 16 months.

(6) The Respondent acknowledged to the Commission in an interview that she knew she was acting outside of her scope of practice by dispensing medication without prescriptions.

(7) It is clear that the Respondent's conduct was outside of the PBA Code of Conduct, the PSA Ethical Standards and PBA Dispensing Guidelines.

(8) It is a fundamental obligation of any pharmacist to ensure that the prescription relied upon is valid, that the medication is clinically appropriate for the patient and that information is provided to ensure safe and appropriate use of the medication, a basic failure on the part of the Respondent.

(9) The Respondent should have known that some drugs such as Diazepam are potentially prone to abuse.

1. For those reasons, the Commission argued that the practitioner's blatant disregard of her professional responsibilities was such a departure from accepted professional standards as to constitute professional misconduct. We agree and find accordingly.
2. The Commission then next submitted that the Respondent's conduct in Complaint Two, alone or together with Complaint One is of a sufficiently serious nature to justify cancellation.
3. In light of the explanation later given by the Respondent for not identifying her colleague, we do not accept that Complaint Two is sufficient to justify cancellation of her registration. By not identifying her work colleague the Respondent was not seeking to avoid all responsibility for her misconduct.
4. Complaint Three has been established.

1. Having found that the Respondent is guilty of professional misconduct the Tribunal's powers to make protective orders under Division 3, Subdivision 6 of the National Law is enlivened.
2. In Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do"), Meagher JA (with whom Basten and Emmett JJA agreed) held at [35]:

"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."

1. The protective objectives under the National Law thus encompass considerations of specific and general deterrence, as well as upholding public confidence in the standards of the profession, including by denouncing misconduct as unacceptable (Do at [35]). It is an error for the Tribunal to focus only on the protection of the public from further malpractice or misconduct by the particular practitioner. The Tribunal must also address the public interest in having a practitioner's conduct denounced as unacceptable (Do at [39]).
2. The relevant principles to be applied have also been set out in a number of decisions of the Tribunal. For example, in Health Care Complaints Commission v Duggan [2015] NSWCATOD 142, the Tribunal approached the issue as follows at [42]-[43]:

"The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions.

In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection":

(a) Any need to protect the public against further misconduct by the practitioner;

(b) The need to protect the public through general deterrence (of other practitioners);

(c) The need to protect the public by reinforcing high professional standards and denouncing transgressions;

(d) The maintenance of public confidence in the profession;

(e) The desirability of making available to the public any special skills possessed by the practitioner."

1. In Health Care Complains Commission v Robinson [2022] NSWCA 164 it was held at [31] (per Kirk JA):

"The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. The conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances": Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Thus the Tribunal can make an order less severe than suspension or cancellation even though it has previously found that the conduct was sufficiently serious to justify such a remedy: Karalasingham at [67]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [65]; note similarly EFA at [163]-[164]. For example, it may be that the subjective circumstances of the practitioner militate against such an order: note EFA at [171]-[172]."

1. The reference to EFA in that passage is a reference to the decision of the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; 106 NSWLR 383 ("EFA").

1. Under s 14C9(1)(b) of the National Law the Tribunal may suspend or cancel a registered health practitioner's registration if the practitioner is guilty of professional misconduct.
2. Section 149C(4)(a) of the National Law provides that the Tribunal may decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration.
3. In a letter of 5 June 2025 (the correct date is 4 April 2025) the Solicitors for the Respondent wrote to the Commission by email which is headed "Without Prejudice Save As To Costs". As a result, the contents of that letter are not taken into account in respect of our reasoning on this issue.
4. There is very little evidence available to us as to future plans of the Respondent.
5. It is clear that the Respondent has surrendered her registration and, as a result, we will infer that, at least for the near foreseeable future she has no intention of again practising as a pharmacist.
6. The question then is whether the Respondent poses a risk, or a material risk, requiring protective orders excluding her from practising for a period of time.
7. The Commission argued that the following factors supported a conclusion and finding that the Tribunal should conclude that the Respondent still posed a risk of reoffending:

(1) the conduct itself which involved a complete disregard for her obligations as a registered pharmacist over a period of time;

(2) the fact that the Respondent was prepared to engage in false and misleading conduct when confronted with her wrongdoing;

(3) the Respondent is still of relatively young age and, as far as could be established, had no other qualification suggesting that she may again return to this profession;

(4) there was no evidence on oath provided by the Respondent that she will not, or will not for a considerable period of time, return to or seek to return to practise;

(5) the Respondent had not made any admissions as to her wrongdoing and had not displayed real insight into the nature and extent of her wrongdoing;

(6) the established misconduct disregarded a fundamental obligation on the part of a registered practitioner, namely, not to dispense drugs without prescriptions;

(7) in this case the Respondent was only able to avoid detection of her conduct by falsely creating entries into the pharmacy records;

(8) pharmacists are gatekeepers to protect the public and the Respondent had fundamentally failed in that regard.

1. In our view, the Respondent still poses a risk to the public if she were to practise pharmacy. We have come to that view for the reasons put forward by the Commission and, in particular, the fact that we can have no confidence that the Respondent has demonstrated meaningful insight into the unacceptable nature of her conduct and the absence of real contrition.
2. In addition, the need for general deterrence directed at other practitioners who might contemplate engaging in conduct the subject of the Complaints in this case looms large for the purposes of the protections of the public.
3. In our view, and we find, that an order short of cancellation in the circumstances of this case will not achieve all the elements of the protective jurisdiction to be considered consistent with the provisions of the National Law directed at the protection of the public from the misconduct of pharmacist health practitioners. The principles outlined above support a conclusion that if the Respondent were still registered the Tribunal would have cancelled her registration. The combination of factors identified by the Commission, which we have set out above, and the very serious nature of the offending, mean that when considering the whole of the Respondent's conduct cancellation would have followed had the Respondent still been registered. Cancellation would not, in our view, be unreasonable or disproportionate in the circumstances.

1. The purpose of a non-review period is to protect the public.
2. The Tribunal is permitted by s 149C(7) of the National Law to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order (Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] per Payne JA, Basten and Leeming JJA agreeing).
3. The fixing of a non-review period does not lend itself to an arithmetical process. It is a process of instinctive synthesis in which relevant factors are identified and then weighed as a whole using the specialist experience and knowledge of the Tribunal (see Shelley v Nurses and Midwives Tribunal of NSW & Anor [2007] NSWSC 1240 at [37] - [39]).
4. As to setting the period in which an application for re-registration is prohibited the Tribunal in Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [94] ("Luque") noted:

"The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time: Chen v HCCC [2017] NSWCA 186; HCCC v Do [2014] NSWCA 307."

1. The Commission submitted that a two year non-review period should be imposed in this case.
2. We agree that had the Respondent still been registered a non-review period would have been appropriate to be imposed. A two year non-review period, in our view, meets the twofold operation referred to above. It will act as a deterrent to other members of the profession and maintain public confidence and professional standards. Even if there is only a low risk of the Respondent seeking to return to practice, the need for general deterrence is an important factor in a case of this kind.
3. An order to that effect will be made. That period reflects the seriousness of the whole of the Respondent's conduct (Chen at [88]).
4. An order under s 149C(4)(b) of the National Law will be made that the Respondent is disqualified from being registered in the health profession of pharmacy for two years.
5. Further, an order under s 149C(4)(c) of the National Law will be made that the National Board is required to record the fact that if the Respondent was still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board.
6. In addition, an order will be made under s 149C(7) of the National Law that the order under s 149C(4) not be reviewed for a period of 2 years from the date of the order.

1. The Commission seeks an order for costs. The Tribunal has the power to order that a respondent is to pay the applicant's costs and the general rule is that costs will follow the event: Health Care Complaints Commission v Phillipiah [2013] NSWCA 342 at [42].
2. The Respondent opposes an order that she pays the Commission's costs. In summary, the Respondent's position, as set out in the letter of 4 April 2025 referred to above, is to the following effect:

(1) It is said that the Respondent has fully cooperated with each investigation that came before the proceedings which have enabled the proceedings to be commenced without the expense that attends a dispute around allegations.

(2) The Respondent does not intend to ever return to practise as a pharmacist and accepts that she has conducted herself in a way that is incongruous with holding a registration in the profession.

(3) Notwithstanding that the Respondent may have applied to the Tribunal to terminate the proceedings pursuant to Clause 12 of Schedule 5D of the National Law, she did not wish to put the Commission and the Tribunal to the costs of considering such an application.

(4) The Respondent has a young family and is concerned about the effect of legal proceedings and a costs order would have on her and her young family. She also has medical issues that may be exacerbated.

(5) The Respondent indicated that she did not intend to contest the allegations, file any evidence or make any submissions in relation to any sanction that is proposed by the Commission as a result of the foregoing.

(6) The sole issue was a concern in respect of costs and it would be appropriate for the reasons set out above for the Commission not to seek costs in the matter. The Solicitors stated that they consider that this would be a strongly arguable position before the Tribunal and their client wishes to avoid that argument.

1. In our view, the matters raised on behalf of the Respondent on the question of costs are insufficient to justify departure from what is described as the general rule.
2. Although the Respondent did cooperate with each of the investigations preceding the proceedings, she also engaged in dishonest conduct in at least one respect.
3. The fact that the Respondent does not intend to ever return to practise as a pharmacist does not negate the entitlement of the Commission to costs.
4. We do not accept that the choice by the Respondent not to seek termination of the proceedings is a relevant consideration. There is no suggestion that had such an application been made it would have been granted.
5. The monetary impact on the Respondent in the event that a costs order is made does not detract from the entitlement of the Commission to be compensated for its costs. The Respondent would be entitled to approach the Commission for an arrangement for the payment of those costs in a manner which she can afford.
6. Although the Respondent in a letter advised that she did not intend to contest the allegations she did not at any stage make formal admissions as to the Particulars or suggest to the Commission that she would agree all of the facts relied upon.
7. Even if that had occurred the proceedings would still have been necessary as it is for the Tribunal to decide whether the allegations as admitted, or the facts as admitted or established, justified the discretionary judgments on the part of the Tribunal to make the findings of unsatisfactory professional conduct, professional misconduct and to make the appropriate protective orders.
8. The fact that the Respondent did not contest the hearing is relevant as it resulted in a shortened hearing. However, the Respondent benefits from a shortened hearing in the sense that the costs associated with preparation and a hearing are reduced.
9. We shall issue an order that the Respondent pay the Commission's costs as agreed or assessed.

(1) Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) if the practitioner, Christine Phuong Lynh Huynh Nguyen, was still registered, the Tribunal would have cancelled her registration pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW).

(2) An order under s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW) that the Respondent is disqualified from being registered in the health profession of pharmacy for a period of 2 years.

(3) An order under s 149(4)(c) of the Health Practitioner Regulation National Law (NSW) that the National Board is required to record the fact that if the Respondent was still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board.

(4) An order under s 149C(7) of the Health Practitioner Regulation National Law (NSW) that the order under s 149C(4) not be reviewed for a period of 2 years from the date of the order.

(5) Pursuant to Clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) the Respondent is to pay the Health Care Complaints Commission's costs of the proceedings, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.