Health Care Complaints Commission v Phuoc Loc Le

Background

1. The practitioner completed a Bachelor of Pharmacy at Sydney University in 2014 and was first registered as a pharmacist on 12 January 2015. He completed his registration year at a pharmacy in Darlinghurst, NSW.
2. At the time of the PRU investigation the practitioner was engaged in employment as a Clinical Trial Co-ordinator for the NHMRC in association with the University of Sydney at the Chris O'Brien Lifehouse Centre, Camperdown. He also worked as a pharmacist for a half day most Saturdays at a pharmacy at Milperra.
3. On 9 January 2019 the PRU contacted the practitioner requesting he voluntarily participate in an interview. The practitioner asserts, that based on advice he received from his professional indemnity insurers, he declined to participate in an interview.
4. On 3 May 2019 the practitioner responded in writing to a notice issued on 24 April 2019 by the PRU.
5. A hearing was conducted by the Council on 7 May 2019. On 29 May 2019 the Council provided written reasons for its decision under s 150 of the National Law and imposed a condition on the practitioner's registration "not to practice as a pharmacist".
6. An evidentiary certificate dated 28 March 2022 from the Australian Health Practitioner Regulation Agency (Ahpra) discloses that the practitioner's registration was suspended on 2 April 2020 under s 150 of the National Law.
7. On 9 April 2020 the practitioner received a certificate from the Pharmaceutical Society of Australia (PSA). The certificate states that the practitioner has completed two units (Part 1 Legislation and Pharmacy Practice and Part 1 S8 activity) as part of "Ethics and dispending: Non-Vet Ethics".
8. At the date of the hearing the practitioner was employed as a Clinical Trial Co-ordinator for a trial study of COVID 19 vaccines at the University of New South Wales in association with the National Institute of Health, USA. He is not employed as a pharmacist in this role.

The relevant law

1. These proceedings are brought by the HCCC under Part 8 of the National Law. Complaint One is agitated under both s 139B (1) (a) and (l) of the National Law. Those provisions are as follows: 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 - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. Complaints Two and Three are brought under s 139B (1) (l).
3. Complaint Four alleges professional misconduct (relying on Complaints One, Two and Three either individually or cumulatively). Section 139E of the National Law sets out the conduct that constitutes professional misconduct 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.
4. As with all matters under the National Law the objectives in s 3 and s 3A are relevant. Section 3A provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
5. The principles relevant to disciplinary proceedings are well known. First, the onus of proof of the complaints lies on the HCCC. Secondly, these are civil proceedings, and given the serious consequences of such proceedings both for the practitioner and the public, it is generally accepted that the complaints must be established to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449. Thirdly, the purpose of protective orders is not to punish the practitioner but to protect the public.
6. Protective orders made at the conclusion of disciplinary proceedings are primarily to ensure the protection and health of the public. Such orders also act as both a specific and general deterrent to other practitioners engaging in like conduct, and to uphold the standards of the profession (see Health Care Complaints Commission v Do [2014] NSWCA 307 per Meagher JA at [35].

Complaint One

1. The background to and particulars of this complaint are as follows: This complaint relates to the practitioner's involvement in a delivery arrangement between Ms Trinh and Maks Chemist on Kingsgrove Road, Belmore, New South Wales ("the Pharmacy"). Between around 2015 and early 2019, the Pharmacy had an arrangement with the Store ("delivery arrangement") by which: (i) Ms Trinh would provide prescriptions to Mr Jason Vuong, the pharmacist proprietor of the Pharmacy, or Mr David Vuong, his brother and another pharmacist working at the Pharmacy; (ii) Mr Jason Vuong or Mr David Vuong would dispense the drugs prescribed, in accordance with any directions provided by Ms Trinh (including as to dispensing multiple repeats); (iii) Mr Jason Vuong or Mr David Vuong would give the dispensed drugs to Ms Trinh's husband, who would attend the Pharmacy to collect them and take them back to the Store or deliver them to the patients; (iv) patients would collect their drugs at the Store and make payment for them the drugs to the Store, which the Store would then pass on to the Pharmacy; and (v) the Pharmacy would pay a fee to the Store for each item delivered through this arrangement. Neither Ms Trinh nor her husband were registered health practitioners. The Store was not a registered pharmacy and no registered pharmacist worked there. For the purposes of the particulars set out below, legislative or regulatory requirements for the supply of a drug include: (i) the requirements of the Poisons and Therapeutic Goods Act 1966 (NSW) ("PTGA") and Poisons and Therapeutic Goods Regulation 2008 (NSW) ("PTGR") in relation to the relevant type of drug; (ii) the Pharmacy Board of Australia "Guidelines for dispensing of medicines" issued September 2015 ("Dispensing Guidelines"); (iii) the Pharmacy Board of Australia "Code of Conduct" issued March 2014; and (iv) the Pharmaceutical Society of Australia "Dispensing Practice Guidelines" issued [month] 2017. PARTICULARS OF COMPLAINT ONE Particulars 1, 3 and 7 are relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) individually or in any combination with the other particulars. Particulars 2, 4, 5 and 6 are relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) only in combination with other particulars. 1. Between 31 May 2017 and 12 November 2018, the practitioner facilitated the unlawful supply by Ms Trinh of drugs contained in Schedules 2, 3 and 4 of the Poisons List proclaimed under section 8 of the PTGA ("Schedule 2 drugs", "Schedule 3 drugs" and "Schedule 4 drugs"), by: (a) accessing the Pharmacy's wholesale ordering portal, using login information provided by Ms Trinh; and (b) placing orders for medications as requested or directed by Ms Trinh ("wholesale order"), in circumstances in which the practitioner knew that: (c) Ms Trinh was not a registered health practitioner; and (d) the medications would be delivered to patients by Ms Trinh. 2. The practitioner placed the wholesale orders referred to in particular 1: (a) in circumstances in which he was not employed by the Pharmacy; (b) without obtaining express permission from the Pharmacy to do so; and (c) without otherwise contacting the Pharmacy before placing the orders. 3. The practitioner placed the wholesale orders referred to in particular 1: (a) without taking any steps to confirm or ensure that the medications would be supplied to patients only in quantities and circumstances where the supply was clinically appropriate, on a prescription (where required), and otherwise in accordance with the legislative or regulatory requirements for the supply of the relevant drugs; and (b) without taking any steps to confirm or ensure that patients would have access to appropriate counselling or information about the medication, in circumstances in which the practitioner: (c) knew that he would not be dispensing or supplying the medications himself; and (d) was regularly ordering bulk quantities of the medications (that is, more than what would be therapeutically appropriate for supply to one person on one occasion). 4. On or around 5 November 2017, the practitioner placed a wholesale order for one unit of Sustanon 250 (testosterone isocaproate) in circumstances in which: (a) testosterone was a special restricted substance within the meaning of the PTGA, being a drug contained in Appendix B of the PTGR ("Schedule 4B drug"); and (b) the practitioner did not request or sight a prescription for the medication. 5. On or around 26 August 2018, the practitioner placed a wholesale order for two units of Seretide 250/25 (fluticasone propionate and salmeterol xinafoate) in circumstances in which: (a) fluticasone (above 50mg) and salmeterol were Schedule 4 drugs; (b) the practitioner did not request or sight a prescription for the medication. 6. On or around 6 September 2018, the practitioner placed a wholesale order for 12 packets (60 tablets) of Viagra (sildenafil) in circumstances in which: (a) sildenafil was a Schedule 4 drug; and (b) the practitioner did not request or sight a prescription for the medication. 7. The practitioner opened took steps to open wholesale accounts with two pharmaceutical wholesalers (Fagron and Medisca), in the name of the Pharmacy: (a) using the details of Mr Jason Vuong; and (b) without obtaining permission from Mr Jason Vuong to do so; and (c) in circumstances in which the practitioner intended for those accounts to be used for making wholesale orders at the request or direction of Ms Trinh, or knew that they would be used for that purpose.

The practitioner's response

1. The practitioner disputes Complaint One. He states: The Expert Reviewer's report commented in Tab 17, point 61 "It is also noted that while simply ordering stock for the pharmacy to provide on receipt of valid prescriptions may not fall significantly below standards expected, it is an unusual case. The reason for an external pharmacist to order quantities of medication for a pharmacy which they do not work in, and where they have no relationship with the proprietor of the pharmacy, is not something I have previously come across." summarises my involvement as unusual, but may not fall significantly below standards expected. My involvement admittedly is unusual but was not done with knowledge of inappropriate supply of medication. Had I known of any supply contravening legislations or regulations I would not have agreed to help Ms Trinh as it did not benefit me in any way.
2. It is the practitioner's position in his response document that, to assist Ms Trinh, he was provided with the login details (to the wholesaler's account) and "would expect the Pharmacy understood Ms Trinh would have help. They did not explicitly tell Ms Trinh their login details were for her and only her".
3. In response to particular 3, the practitioner disputes particulars (a) (b) and (d) He accepts as correct particular (c) namely that he knew that he would not be dispensing or supplying the medications himself. In respect of particular (d) he notes "I do not agree with this allegation. The orders were for multiple people with prescriptions".
4. The practitioner does not dispute particulars (a) and (b) of particular 4 namely that around 5 November 2017 he placed a wholesale order for one unit of Sustanon 250 (testosterone isocaproate) where testosterone was a special restricted substance or Schedule 4B drug, and he did not sight a prescription for the drug. He refers to the text messages passing between himself and Ms Trinh and explains: (a)(b) Tab 11 of the HCCC's Text message extract evidence, Text line 3448 I had asked if Ms Trinh knew that this medication requires a prescription with which she confirmed "yes". I proceeded to advise her that the dispensing of 4 boxes would be unlawful and the pharmacist would be in "trouble" in text lines 3444 and 3445. I proceeded to order only 1 box assuming the prescription would be verified at Maks Chemist prior to dispensing. Had there not been a prescription, the pharmacist at Maks Chemist would not have dispensed the medication.
5. In responding to particular 5 the practitioner conceded around 26 August 2018 he placed a wholesale order for two units of Seretide 250/25, a Schedule 4 drug and did not sight a prescription for the medication. Notwithstanding his concession of particular 5 (a) and (b) the practitioner states: I have ensured with Ms Trinh that an authority prescription is required for Seretide 250/25 inhaler prior to ordering and this is evident in text line 21345. The verification and dispensation with the duty of the pharmacist on duty.
6. The practitioner concedes the particulars of particular 6 of Complaint One (the placement of a wholesale order for 12 packets of Viagra (sildenafil) around 6 September 2018. He states in his response: I concede I did not sight the original prescription but relied on the pharmacist on duty to verify the prescription and to dispense the medication if appropriate.
7. Particular 7 of the amended complaint refers to the practitioner taking steps to open wholesale accounts with wholesalers (Fagron and Medisca) in the names of the pharmacy. The practitioner's response document was prepared before the amended complaint. His response was to an assertion he had opened the accounts. His explanation is that the application for the accounts was started but were not submitted for approval. He states that Mr Jason Vuong (the proprietor of Mak's Chemist) sent a text in which he said, "Just open it with your details and fill in my details where needed". He asserted "This indicated that I had permission from Jason Vuong to assist with the application".
8. In response to particular 7 (c) (which asserts the practitioner attempted to open the accounts with wholesalers in circumstances where he intended for the accounts to be used for making wholesale orders at the request or direction of Ms Trinh or knew that they would be used for that purpose), the practitioner stated: The intention to open accounts at "Fagron" and "Medisca" was to order ingredients to compound and dispense compounding prescriptions at Maks (sic) Chemist as Ms Trinh has noticed an increase in compounding prescriptions from customers. I was advised these were creams or ointments which needed to be compounded.

Expert evidence

1. The HCCC relied on two expert reports of Ms Nerida Croker dated respectively 6 October 2020 and 23 March 2022. In her latter report, Ms Croker was asked to advise whether she had changed her opinion in the light of the practitioner's response. Ms Croker was not required for cross-examination.
2. Ms Croker sets out the "usual" practice of a pharmacy ordering from a wholesaler. She notes that a pharmacy needs to have sufficient stock available for patients when they present with a prescription. She explains that the store manager or pharmacist will usually place orders and subsequently check stock. She also explains that if a pharmacy receives a prescription for an unusual medication or prescription for larger quantities than "that which was kept in the pharmacy" that these items would often be ordered in.
3. In commenting on the practitioner's involvement in facilitating supply of medications to Ms Trinh, Ms Croker opines that the practitioner's conduct in facilitating the supply of medications to Ms Trinh, who he knew was not a registered health practitioner, falls below the expected standard (Report Part B para 9). She goes on, at para 11, to opine that given the quantities of the medications ordered and the risk (and likelihood) the medications were provided by an unlicensed practitioner to her customers, that she is strongly critical of the practitioner's behaviour. Ms Croker refers to some of the text messages and states that it appears that the practitioner should have been concerned Ms Trinh was selling to her customers.
4. Ms Croker also expresses the opinion that the practitioner's conduct in accessing the wholesale portal without any direct permission or contact with the pharmacy falls below the expected standard.
5. In her supplementary report, Ms Croker opines that if the practitioner did not know one way or the other and did not make enquiries to verify whether a valid prescription had been received by Mak's Chemist before each item was dispensed, and that the pharmacist would consider and determine whether it was appropriate to dispense the medication, the practitioner's conduct would fall significantly below the standard expected.

The HCCC submissions - Complaint One

1. In his written submissions, Mr Fuller, counsel for the HCCC, notes that the practitioner, in his response document, admits that his knowledge of the delivery arrangement was "broadly as described in the background to Complaint 1" and that the arrangement was "unusual".
2. It is submitted that the practitioner's contentions about the arrangement should not be accepted noting that the practitioner's cross-examination revealed that he made no attempt to verify that a pharmacist at Mak's Chemist would receive a valid prescription before each Schedule 2, 3 or 4 drug was dispensed or that the pharmacist would comply with the legislative and regulatory requirements for dispensing. Reliance is placed on Ms Croker's opinion set out in her supplementary report where she is strongly critical of the practitioner's conduct given the nature and frequency of pharmaceutical products being ordered.
3. The HCCC submit that it is clear, including from answers given by the practitioner in cross-examination, that he took no steps himself to ensure the medications he ordered would be supplied to patients only when clinically appropriate or with appropriate counselling or information or otherwise in accordance with legislative and regulatory requirements.
4. It is further submitted that the practitioner had no reasonable basis to make any assumptions about the dispensing process in the pharmacy in circumstances where he did not work in the pharmacy, never spoke to the pharmacists, or ever attended the pharmacy. The HCCC submit that we would find that the practitioner rarely saw prescriptions himself and that he had reason to think Ms Trinh was selling at least some prescription only medicines without a prescription. Reliance is placed on Ms Croker's report noting that the expert considered that at least some of the practitioner's orders involved large or even commercial quantities of medications.
5. It is submitted that the conduct particularised in Complaint One is of such serious significance that we could find unsatisfactory professional conduct proved.

Consideration - Complaint One.

1. We do not accept the practitioner's explanation about the arrangement with his cousin, Ms Trinh. We found that his answers given in cross-examination were initially evasive or endeavoured to minimise or underplay his involvement in the arrangement with Ms Trinh. We are satisfied he was well aware of regulatory requirements particularly given his work on a part-time basis in the pharmacy at Milperra.
2. We find that the practitioner did not obtain express permission from the pharmacy to place the relevant orders, and further that he had no contact with Mr Jason Vuong or Mr David Vuong during the ordering process. He never attended the pharmacy and knew nothing about the proprietor pharmacist other than Jason's first name. In considering his explanation he had inferred permission to place orders (because Mr Jason Vuong had given Ms Trinh access to the wholesale account) we accept and agree with Ms Crocker that his conduct was below the standard, albeit not significantly below the standard. We note, subject always to matters of procedural fairness, it is not essential that each particular of Complaint One be established to the requisite standard for a finding of unsatisfactory professional conduct to be made (see Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315).
3. Our examination of the text messages leaves us in no doubt the practitioner regularly ordered bulk quantities of medications that were more than would be therapeutically appropriate to supply to one patient. We accept that he rarely saw a prescription for the medications in respect of which he placed orders. In short, he facilitated the unlawful supply of drugs by Ms Trinh. We accept and agree with Ms Croker that this aspect of the practitioner's conduct falls significantly below the standard reasonably expected of a practitioner of the equivalent level or training or experience.
4. We note at para 31 of her report, Ms Croker points out by reference to the practitioner's text exchanges with Ms Trinh that: The fact he identified the restricted medication which can be audited and must be accounted for if requested by the regulatory unit may point to him being aware that orders Ms Trinh placed were not always on the basis of a valid prescription. Otherwise, you may expect him to always point out 'you need a script for all S4 medications, or to assume these were all from prescriptions she had in her hand and therefore not ask about prescriptions at all.
5. We accept Ms Croker's opinion is well founded. As noted in the HCCC submissions, the practitioner's text messages disclose he did not assume Ms Trinh already had a prescription, that his concern was to avoid the pharmacy getting into trouble rather than a concern for patient safety, and that he ultimately ordered the amount Ms Trinh requested.
6. We are satisfied that the particulars 2, 3, 4, 5, 6 and 7 in Complaint One are established on the evidence before us under s 139B (1) (a). Accordingly, we find that the practitioner is guilty of unsatisfactory professional conduct. In reaching that conclusion we place significant weight on the text messages between the practitioner and Ms Trinh, and the type of quantity of medications for which the practitioner placed orders. In particular, we accept and adopt the conclusions of Ms Crocker about the practitioner's conduct set out in her supplementary report. In so doing, we find the practitioner's conduct occurred in his practice of his profession and was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
7. We note that this complaint also agitated on the basis of unsatisfactory professional conduct under s 138 B (1) (l). The National Law does not define the words "improper" and "unethical". Those words have been construed in the context of the National Law to have their ordinary and natural meaning. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [30]-[31] the Tribunal explained: The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession".
8. It may be argued on a strict interpretation that, in the circumstances of this case, the practitioner was not engaged in the practice or purported practice of his profession. However, we do not find the provision should be so constrained. The practitioner was applying his pharmaceutical knowledge to improperly order medicines intended for dispensing to patients without any checks to ensure that patients received their medicines, and/or ordering medicines inappropriately and in excessive quantities again without any appropriate checks or inquiry. Thus, we conclude he was acting in the practice of his profession.

The practitioner's response

1. The practitioner disputes the background to Complaint Two which asserts he gave false or misleading evidence to the Council in the s150 proceeding to the effect he was not aware of any previous prosecution of or unlawful behaviour by Ms Trinh. The practitioner in his response states: At the time of my interview with the Pharmacy Council's section 150 proceeding, I had no legal representation with me and did not have the mental clarity. I was stressed, anxious and felt a lot of pressure to provide the answers. At the time I did not recall of Ms Trinh's previous prosecution, nor did I know of the details. My answer to the Pharmacy Council's question should have been that I did not recall not to the effect of me not knowing of her court attendance.
2. The practitioner's evidence on this topic when cross-examined was initially evasive and defensive. He sought to minimise his knowledge of his cousin Ms Trinh's previous conviction notwithstanding the text messages demonstrate that he knew of her court date, and asked Ms Trinh if the Magistrate had agreed to an order that a fine be paid by instalments. The practitioner's cross examination on this topic is relevant to our determination of Complaint Two: Q. I'll ask you to assume that this is a message from Ms Trinh saying, "Court today okay" and then she says "Finish." Do you remember what that was about? A. Yes. Q. Can you tell me what that was about? A. She was telling me that she received a fine from the Court and that she was going to Court to ask whether she could pay the fine in instalments. Q. Right, and what was it about? What was the reason why she received the fine? A. She didn't tell me, no. Q. Do you agree now at least that it's pretty likely that this is the New South Wales Health prosecution? A. I agree now, yes. Q. Later on you had a conversation with her about handing in a letter to the Court, do you remember that? A. Yes. Q. Can I take you to that? It's pages 356 and 357? A. Sorry, can I have the PDF number again, please? Q. 403? And can you read from 3360 to 3349? A. Yep. Q. Let me know when you've done that? A. Yep. Q. That was the letter that you mentioned about paying the fine by instalments, is that right? A. Yep. Q. You'd obviously had a discussion with her about this to give context to this conversation? A. It was a superficial conversation because she said that she had received a fine for the business and I was just asking because I was concerned for her. Q. You discussed this with her more than once ...not transcribable... ? A. Well, now I can see, yes. Q. Were you helping her to write the letter to the Court? A. No. Q. You were discussing the content of the letter with her, though, is that right? A. No, I don't think so, no. Q. Isn't it the case from these discussions that she would have told you what - that she did tell you what the fine was about? A. No. Q. Is your true evidence to the tribunal that you never thought that it was about a New South Wales Health prosecution or any sort of drug related offence until you saw the evidence in this proceeding? A. No, I didn't have any speculations as to it being connected to what I know now. Q. You understood that Ms Trinh's business was selling health food products and being involved in the delivery, as you say, of medications and other products to customers? A. Yeah. Q. You said that she told you the fine was in relation to her business? A. Yep. Q. You say that you never asked any question about what the fine was about? A. No. Q. And it never crossed your mind that the fine might have been about unlawfully supplying schedule drugs? A. No. Q. Because you were involved in the process of supplying those drugs, you agree with that don't you? A. Involved at that stage or-- Q. At the time you were having these conversations, you were involved in this arrangement where Ms Trinh was, to use your words, delivering prescription drugs to customers? A. Yeah. Q. And you never thought at that time that the charges for which she received a fine might have anything to do with that? A. No. Q. Is that truthful evidence? A. Yes, that's right. Q. You agree now that in your reply that when you told the pharmacy council that you didn't know anything about previous prosecutions of Ms Trinh or any previous trouble with the law, that that was untrue? A. I think at the time when I was answering the pharmacy council I was in - under immense stress. I didn't have legal representation and in answering that I used the phrase that wasn't, I guess, legally the right answer. I should have said that I didn't recall or I don't remember, but it was a sort of knee jerk reaction to say no.[transcript 5 April 2022 pages 27-28]
3. After the practitioner received the benefit of a certificate under s 128 of the Evidence Act 1995 (NSW) the following exchange occurred between counsel for the HCCC and the practitioner: Q. I'll just give you the opportunity again, Mr Le. Do you accept that you were deliberately untruthful in your answer to the question by the pharmacy council about your knowledge of previous prosecutions or issues with Ms Trinh? A. Yes. Q. You accept that you were deliberately untruthful? A. I wouldn't say that it was deliberate-- Q. I'm just trying to be fair to you because if you just give that answer to me. that I'm trying to be fair to you. Do you accept that you were deliberately untruthful in your evidence to the pharmacy council? A. It wasn't a deliberate train of thought. It was an answer to a question at that time. The context of it was that my understanding of the question is in relation to what I am being prosecuted for now. Q. Do you agree or not agree that the fine that you were talking to Ms Trinh about came to your mind when you were asked these questions by the pharmacy council? A. Yes. Q. It did come to your mind? A. Yes. Q. Do you accept that, just in hindsight, looking at it now, in fact your participation in this arrangement did facilitate Ms Trinh unlawfully supplying schedule 2, 3 and 4 drugs? A. Yes, in hindsight, yes. [Transcript 5 April 2022 page 30]

Consideration Complaint Two

1. We are satisfied that this Complaint which the practitioner initially sought to minimise or "explain away" in his answers in the s 150 hearing was ultimately admitted by him. His admissions are consistent with the text messages passing between himself and Ms Trinh.
2. The role of the Council in conducting proceedings under s 150 is an important function to ensure the health and safety of the public is protected in appropriate circumstances. A health professional participating in these hearings must act in a proper, and ethical manner consistent with their professional status and assist the Council in its statutory task. While we have taken into account the fact the practitioner did not have the benefit of a legal representative to assist him at the s 150 hearing, we find nevertheless he did not fully or truthfully disclose his knowledge of Ms Trinh's previous conviction.
3. We find Complaint Two is established.

Complaint Three

1. This complaint, which is brought also brought under s 139B (1) (l) (improper or unethical conduct) relates to the practitioner placing wholesale orders referred to in particular 1 of complaint one in circumstances which: Each of the particulars is relied on individually or in combination. 1. The practitioner placed the wholesale orders referred to in particular 1 of complaint one in circumstances in which: (a) Ms Trinh was ordering quantities of medications that the practitioner knew or should have known were commercial quantities; and (b) the practitioner knew or should have known that those medications would be, or alternatively there was a risk that they would be, supplied without a prescription (where required), or otherwise not in accordance with the legislative or regulatory requirements for the supply of the relevant drugs. 2. The practitioner gave advice and recommendations to Ms Trinh in relation to health conditions of her customers and other clinical matters, in circumstances in which: (a) Ms Trinh was not a registered health practitioner or otherwise qualified to provide clinical advice to her customers; and (b) the practitioner did not see or have any contact with the relevant customers.

The practitioner's response

1. In replying to particular 1 (a) the practitioner in his response states: (a) I do not agree with this allegation. I inferred there were multiple patients with multiple prescriptions for a variety of medications as this is common practice in the Pharmacy ordering process.
2. In response to particular 1 (b) the practitioner states: (b) I do not agree with this allegation. Prescriptions were presented by customers to Ms Trinh as evident from HCCC's Tab 12 of evidence. It was relied upon that the Pharmacist on duty at Maks Chemist to exercise judgement and make the decision of the appropriateness of dispensing the medication.
3. In responding to particular 2 (which asserts the practitioner gave advice and recommendations to Ms Trinh about health conditions of her customers) the practitioner responded: (a) Ms Trinh was providing general advice to friends and family. If they were customers with complex medical issues, they would've been referred to a doctor or pharmacist. (b) The advice given were individuals from Vietnam, often poor and did not have access to adequate medical care. In Tab 29 Appendix B text message exchanged on 30 July 2018 from 20:18hrs I had asked Ms Trinh to query a local Doctor in Vietnam to advise what the diagnosis was. "You: too young. What did the Dr in vn say? Ms Trinh: I didn't ask them yet You: Ask what the Dr there diagnose the baby with because I don't think there is anything there Ms Trinh: Ok let I ask them" The other person I had given more medical advice to, was my aunty in Vietnam, referred to as "ma 4" in the text message evidence. She is Ms Trinh's mother who has now passed away. I will not accept criticism for providing medical advice to my family. [Transcript 5 April 2022 page 30]

The HCCC submissions

1. The HCCC rely on Ms Croker's opinion about the arrangement between the practitioner and Ms Trinh and submit this occurred in circumstances in which he knew or should have known some of the quantities of medications being ordered were commercial quantities and that they would be, or there was a risk they would be, supplied without a prescription or otherwise not in accordance with the legislative and regulatory requirements.
2. It is submitted we should draw the inference that the particulars in this complaint are established from a number of circumstances including the quantities, frequency and regularity of orders placed by the practitioner, and his willingness to facilitate the supply of Schedule 4 medicines to Ms Trinh including: 1. ordering Schedule 4 'lines' in place of Schedule 2 "lines" of drugs; 2. providing samples of drugs to Ms Trinh; 3. placing orders when he was told the drugs were for a person in Vietnam; 4. rarely sighting prescriptions for Schedule 4 drugs he ordered; 5. his knowledge that Ms Trinh was concerned for financial gain (including discussions with her before ordering whether prices of products were cheaper at Chemist Warehouse); 6. his visits to the health food store. 7. his knowledge of Ms Trinh previous conviction, and 8. a lack of coherent explanation for his involvement in the arrangement if all supplies were legitimate and in accordance with legislative and regulatory requirements.

The expert report

1. Ms Crocker at para 22 of her initial report explains: However, by his involvement in ordering quantities of medications, sometimes only small quantities such as one unit, and sometimes as large as 12 units, Mr Le should have been expected to realise that there may have been some inappropriate activity occurring. If the transaction was simply that Ms Trinh supplied a prescription for an item and the pharmacist dispensed it, it is not clear why Mr Le would need to have been involved at all. His involvement in the ordering may suggest there was something unusual occurring in the transactions.
2. Ms Croker also opines, in para 23 of her initial report, when discussing the orders for large quantities of medications (such as 100 units of Panamax tablets) that this could not be suggested for personal use or for a prescription and "as such Mr Le would be expected to realise that this may have been an order which Ms Trinh was then going to on sell, regardless of what input the pharmacists from Mak's Pharmacy had". She further opines "Mr Le also had a duty of care to ensure that only a registered pharmacy and registered pharmacist supplied scheduled medicines".
3. Ms Croker's unchallenged evidence, in para 30 of her report, is that the practitioner was aware the request for four units of Sustanon was "a lot" and the fact the pharmacist could get into trouble may suggest that he was aware there was potentially inappropriate supply.
4. Ms Crocker also explains, at para 31 of her report, that it is telling that the practitioner pointed out to Ms Trinh when she asked him to place orders for a special restricted substance (an s 4B and authority medicine) that a scrip was needed, and this may indicate that the practitioner was aware that other orders Ms Trinh requested were not on the basis of a valid prescription.
5. Ms Crocker sets out her conclusions about the practitioner's behaviour relevant to this complaint at paras 46 and 47 of her initial report as follows: The reason Mr Le need to order items on the Mak's Pharmacy account is not clear. If the items were for prescriptions it would be assumed most stock would already be available at the pharmacy when the prescriptions were presented. Although five boxes of Viagra may be a greater quantity than usually kept in stock. Viagra is not considered an urgent need medication and one box could have been provided initially. The rest could have been ordered in the following day. It appears Ms Trinh had her driver visit the pharmacy on most days and so this should not have ben a significant problem even if stock had been available. It is true that the dispensing pharmacist would also be expected to have responsibility regarding the appropriateness of supply. However, as mentioned in other questions above the quantities of medications that Ms Trinh was asking Mr Le to order, along with the frequency of orders, should have raised concerns that Ms Trinh either keeping the medications at her store or acting as a proxy pharmacy and supplying many prescription only medications daily to her customers. Both would not be appropriate scenarios.
6. We pause to note that, in her supplementary report, Ms Crocker provides her opinion in three scenarios (that Mr Le had a positive belief a valid prescription was received by the pharmacist at Mak's Chemist and the pharmacist would consider if it was appropriate and lawful to dispense the medication, or secondly, he had a positive belief that either or both matters (valid prescription/valid dispensing) would occur, or thirdly he did not know one way or the other and made no enquiries.
7. We note that Ms Crocker responds to these questions on the basis that the conduct was conduct falling under s 139B (1) (a) (below the standard reasonable expected) and not under s 139B (1) (l) under which Complaint Three is agitated. However, she does in her initial report (para 60) refer to the provision of medical advice to customers and opines "These instances may have been unprofessional or unethical conduct".

The practitioner's cross-examination.

1. In his cross-examination the practitioner conceded that that it was not his habit, except on one occasion, to check if Ms Trinh knew a prescription was required for the medications he was asked to order. He conceded he had texted Ms Trinh about a prescription for Sustanon, a s 4B medicine, and that he knew the pharmacy "would get into trouble" if 4 units were dispensed at once" [Transcript 5 April 2022 page 36].
2. The practitioner conceded that when he placed the order for 100 units of Panamax that order was for a commercial quantity and that he could not have expected that Ms Trinh held prescriptions for that number of units of Panamax [transcript 5 April 2022 p36]. He conceded he knew the arrangement was a business venture for Ms Trinh designed for her to make money.
3. The practitioner was reluctant to accept that he knew Ms Trinh had intended to ship certain drugs to Vietnam notwithstanding his text message "is it for a male in Vietnam". We were unable to accept the practitioner's evidence that Ms Trinh was comparing prices in Australia and Vietnam and find his answers on this topic were inherently implausible. He did accept that if the medications were shipped to Vietnam, it was unlikely that Ms Trinh had a valid prescription.
4. The practitioner did concede that if medicines were being supplied on prescription that they were being supplied in excessive quantities. He also conceded that he should have known there was a risk that medicines were being supplied to patients without proper counselling.
5. When taken to evidence about providing sample boxes of an erectile dysfunction drug to Ms Trinh so that she could sell them, the practitioner denied any recollection of giving the boxes to Ms Trinh. He reluctantly conceded that it could be inferred from his text message that the samples were to be sold by Ms Trinh. [transcript 5 April 2022 p 43]
6. The practitioner was questioned about providing medical advice. The following exchange is relevant: Q. Do you have reflection on the appropriateness of providing this sort of medical advice to people you don't know and haven't seen? A. And yes I shouldn't have done that and I shouldn't refer them on to see their - to get the appropriate care. But because these people were in Vietnam they're quite poor people that have access to medical care and I just wanted to - to help them out. Q. Do you think it was possible that some of the people though might not have been in Vietnam they might have been locals? A. Well I can't comment on that. We never exchanged or spoke about those other people. Q. Would I be right in thinking you didn't make enquiries about - any more detailed enquiries about who these people were before you were providing the advice? A. Well on those occasions I did ask and from this text that you've shown me I asked who that is and she said it's a friend over there meaning Vietnam. [transcript 5 April 2022 page 47]

Consideration

1. As with Complaint Two, the establishment of this complaint requires that we are satisfied to the requisite standard that the practitioner's conduct was improper or unethical conduct the in the practice or purported practice of the practitioner's profession.
2. We are satisfied from the text messages exchanged between the practitioner and Ms Trinh that he knew or ought to have known that medications were being ordered in commercial quantities, for example, the order of Panamax. We further find that the practitioner did supply sample drugs to Miss Trinh after advising her that Chemist Warehouse was selling one box of the drug for $105.
3. The practitioner in his cross-examination conceded that he had provided medical advice as clearly disclosed in his text exchanges with Ms Trinh. He also conceded that he knew she was not a registered pharmacist or qualified to give medical advice to her customers, and he did not have contact with the customers.
4. We have already referred to the authorities which have considered the words "improper" and "unethical".
5. We agree with and adopt the comments of the Tribunal in Health Care Complaints Commission v Naamo [2021] NSWCATOD 109 at [74]-[75] which we find have resonance in this case having regard to the practitioner's facilitation of the supply of commercial quantities of drugs. There the Tribunal stated: As has been endorsed often by this Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law engages in conduct which constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner There is no reason why these comments made in Spicer should not apply equally in the case of pharmacists who are also given the privilege of supplying restricted drugs to the public, including drugs of addiction in response to a prescription issued properly and appropriately, and subject to the duty of care which is inherent in the exercise of their profession. Indeed, pharmacists have been described in this Tribunal as being representative of the "gateway" to access to these drugs by the public. As such there are very good policy reasons why the responsibility of pharmacists extends beyond the filling of prescriptions.
6. We have taken into account the Pharmacy Board of Australia's (PBA) Code of Conduct (Exhibit A). We agree with the submission of the HCCC that the practitioner's conduct was not in accord with the requirements of the code which require a practitioner to provide good patient care.
7. We find that the practitioner knew he was ordering commercial quantities of drugs, and that he knew or ought to have known they would be supplied without a prescription. We base this finding on first, the practitioner's answers given in cross-examination, our examination of the text messaging and the actual orders themselves including, for example, the order for Panamax.
8. We also find, as ultimately conceded by the practitioner that he did provide medical advice without seeing or having contact with the patient. His conduct in this regard was in breach of his professional obligations as set out in the PBA Code of Conduct.
9. We are satisfied that the particulars in Complaint Three are established. The practitioner's conduct in ordering commercial quantities of medication on the Mak's Chemist wholesale account was improper. Further we are satisfied the circumstances in which he provided medical advice through an unqualified third party was unethical.
10. We also have regard to the provisions of the PBA's "Guidelines for dispensing of medicines" and the Pharmaceutical Society of Australia Dispensing Practice Guidelines as providing clear and relevant advice to pharmacists in relation to delivery services. Whilst the guidelines do not have the force of law they guide and inform practitioners of "best practice".

The practitioner's response

1. In response to the complaint that he is guilty of professional misconduct, the practitioner in his response stated: The complaints against me was derived from my misguided and poor judgement of the business arrangement between Ms Trinh and the owner of Maks Chemist. In hindsight, I should have questioned their arrangements or not get involved. Throughout this investigation, I have been responsive, have respected and complied with the decision of the Pharmacy Council to suspend my licence. From the time of the outcome of the section 150 proceeding with the Pharmacy Council in May 2019, I have respected, complied and participated in HCCC's investigation. It has been almost 3 years and I have dealt with great pain and regret during the period where I have not been permitted to practice. I am adamant that I have learnt an invaluable lesson throughout this experience. During that time I have sought to educate myself and completed the Pharmaceutical Society of Australia's (PSA) course "NSW - Ethics and dispensing in pharmacy practice: Legislation and pharmacy practice". In particular I have competently completed "Legislation and pharmacy practice" and "S8 Activity" units with certification on the 26th of March 2020. I have remained a member of the Pharmaceutical Society of Australia and have been kept informed of updates in Pharmacy practice. There has been no prior complaints about me and I am of good character in the community as I regularly donate plasma and blood to the Red Cross and donate to charities. I believe that through this investigation and supplementary education with the PSA's "NSW - Ethics and dispensing in pharmacy practice: Legislation and pharmacy practice" I am not a risk to the public's safety if I was to be given the opportunity to practice Pharmacy again. I believe the orders (2) & (3) sought by the HCCC in this matter is punitive and is excessive. I have demonstrated compliance with the suspension since May 2019 and have formally educated myself with the ethics and legislation in pharmacy practice through the PSA. To prohibit me from providing a health service and a further 2 year cancellation of my licence would be putting me in a position where my future livelihood is at risk. Health service is all I know and have been formally educated in. I am willing to return to practice with a period of supervision or further education suggested by the HCCC/Pharmacy Council or the Tribunal.

Professional misconduct - HCCC's submissions.

1. The HCCC submit, at para 49, of the written submissions that the practitioner's conduct was objectively serious. The submissions note that the practitioner facilitated an arrangement by which an unqualified person (Ms Trinh) was able to unlawfully supply large quantities of prescription only and pharmacy only medication to her customers.
2. It is submitted the practitioner did nothing to ensure that the medications ordered in the arrangement were supplied only to patients for whom those medications were appropriate. It is submitted that the practitioner was not "an innocent bystander" in the arrangement noting he was in frequent contact with Ms Trinh multiple times per week. It is also submitted that the practitioner knew Ms Trinh was financially motivated in her actions and that he assisted her notwithstanding he knew about her earlier prosecution for similar conduct in 2017. It is asserted that he acted under Ms Trinh's direction and "without any exercise of clinical judgment". It is further submitted, as a registered pharmacist, it was not appropriate for the practitioner to take a "passive role" in the arrangement. Reference is made to the relevant legislation, which is designed to ensure that Schedule 2, 3 and 4 medicines should be closely controlled and generally not supplied by anyone who is not a registered pharmacist, or a specified kind of health practitioner, or supplied by wholesale by anyone without a proper license (a charge we note was brought against Ms Trinh and for which she was convicted).
3. It is submitted that it was incumbent on the practitioner, as a registered pharmacist participating in the arrangement, to take an active role in ensuring it was conducted in accordance with legislative and regulatory requirements. Reference is also made to the practitioner's failure to be transparent with the Council about his knowledge of Ms Trinh's earlier prosecution or unlawful behaviour.

Consideration - professional misconduct

1. We commence by referring to the decision of Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] where his Honour explained: 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).
2. Having regard our findings of unsatisfactory professional conduct in relation to Complaints One, Two and Three, we turn to consider whether those complaints and the particulars of them either individually, or when considered together, are of such a serious nature to justify the suspension or registration of the practitioner.
3. In our evaluation the practitioner's conduct as particularised in the three complaints is of sufficient seriousness to justify the suspension or cancellation of his registration. In reaching this conclusion, we refer to and adopt our earlier findings, particularly those about the practitioner's involvement in the arrangement which facilitated Ms Trinh's unlawful conduct. We are satisfied this intelligent practitioner, who was engaged in the practise of pharmacy, albeit on a limited part-time basis, knowingly participated in the ordering on a very frequent basis commercial quantities of medicines, accessed Mak's Chemist wholesale portal without ever checking or enquiring about the pharmacists' dispensing at that pharmacy, including proper receipt of prescriptions. He was evasive and less than honest in his answers at the s 150 hearing before the Council and sought even at the hearing before us to minimise or underplay his involvement in the arrangement.
4. In summary, we are satisfied Complaint Four is proven.

Appropriate protective orders.

1. We commence by noting that the practitioner's response to the Complaint Four also encompasses matters relevant to appropriate protective orders.
2. We are guided and informed in our consideration of appropriate protective orders by the objectives of the National Law and in particular s 3A (set out earlier in these reasons). We also bear in mind the discussion of Meagher JA in Health Care Complaints Commission v Do. Also relevant to our consideration are the remarks of the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [73] as follows: Rather it is submitted that, in exercising its discretion to make such an order, the Tribunal was required to take into account the fact that Dr Qasim had been suspended from practice for a period of three and a half years from December 2010. That submission proceeds on a wrong view as to the purpose of the disciplinary powers of the Tribunal. That purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]; see also National Law, ss 3(2) and 3A.
3. We note in Qasim the Court of Appeal rejected the practitioner's submission that in imposing a period before the practitioner could apply for re-instatement it had failed to take into account the period of the practitioner's suspension.
4. We agree with the HCCC that the matters the subject of the complaint are serious. We also accept that the practitioner's participation in the arrangement was not "a mere error or aberration of judgment". He participated in the arrangement for over two years and only ceased when contacted by the PRU. We have also found he was not forthright in answers provided to the Council.
5. We also accept that up to and including in some answers given in cross-examination the practitioner sought to minimise his conduct and demonstrated limited insight into the inappropriateness of his actions.
6. We have found the practitioner's conduct participating in the arrangement constitutes professional misconduct. We conclude that the seriousness of his conduct is not of the same gravity of the proprietor pharmacist who provided details of the wholesale account to Ms Trinh, dispensed excessive quantities of medicines, swapped medicines and on occasions supplied medicines without a script. Nor is it directly comparable with Mr David Vuong's conduct. However, his conduct was integral to Ms Trinh accessing the drugs she wished to source, involved frequent and regular advice to her and ordering on the wholesale portal in circumstances where the practitioner was aware of her previous prosecution and fine.
7. While we note the practitioner has taken some steps to inform himself by undertaking the ethics course, that was over two years ago. We did not find he demonstrated any meaningful insight into his inappropriate and unprofessional conduct.
8. Balancing all relevant factors, we find that the practitioner's conduct was of such a serious nature that his registration should be cancelled and a period of one year should elapse before he may apply for a re-instatement order. In determining the period before he may apply for a re-instatement order we have regard to the purpose of such an order as explained by Payne JA in Chen.

Prohibition order

1. The HCCC seek that we make a prohibition order preventing the practitioner from providing a health service as defined in s 4 of the Health Care Complaints Act 1993. That definition is as follows: health service includes the following services, whether provided as public or private services - (a) medical, hospital, nursing and midwifery services, (b) dental 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)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act.
2. It was not submitted to us by the HCCC that the practitioner's current role as a clinical trials co-ordinator falls within the definition of a "health service".

The statutory provision and case law

1. Section s 149C (5) of the National Law provides as follows: (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.
2. The pre-requisites to making a prohibition order authorises on the question of whether a practitioner poses a "substantial" risk are set out in the decision of Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83 at [84] - [90] as follows: As is clear from the National Law there are two pre-requisites to be established if a prohibition order is to be made. First, the Tribunal must have determined that the practitioner the subject of disciplinary proceedings should have her/his registration suspended or cancelled. Secondly, the Tribunal must be satisfied that the person poses a substantial risk to the health and safety of members of the public. In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139] the Tribunal referred to a substantial risk being a risk that is material, and real or apparent on the evidence, not without substance or speculative by reference to Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96] and Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]. We note in Brush that the Tribunal found a "material" risk the conduct that subject of the complaint might be repeated but it was not a substantial risk and therefore declined to make the order sought. In Choi at [75] the Tribunal notes. The HCCC also seeks a prohibition order pursuant to s 149C(5) of the National Law to prevent the respondent from providing any health service. The Tribunal accepts that there is a "substantial risk to the health of members of the public" which is a precondition to the making of such an order, and that it is a risk that is real or apparent on the evidence presented and not a risk that is without substance, or which is fancy or speculative: Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Sharah [2015] NSWCATOD 99. We note that in Taylor the Tribunal adopted the assessment of risk referred to in Choi but observed the Tribunal had to be satisfied that the there is a "substantial risk". The Tribunal determined that it did not have appropriate expert evidence, nor was there any evidence that the medical practitioner the subject of the disciplinary proceedings had engaged in any inappropriate behaviour since his retirement. The Tribunal declined to make a prohibition order. In Health Care Complaints Commission v Tane (No 2) [2020] NSWCATOD 159 the Tribunal held that a nurse, who had engaged in inappropriate conduct with patients in a drug and alcohol facility including sharing personal information with the patients, seeking to borrow large sums of money from one patient and a loan of $6000 from a second patient, posed a substantial risk of engaging in like conduct if she engaged in certain health services. The Tribunal's finding of substantial risk was based on its assessment the nurse may engage in a similar manner with other patients, and because of her personal circumstances were such that she may not be in a fit and proper state to provide those services. In his oral submissions Mr Fuller referred us to the decisions of the Tribunal in Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 at [20] - [25] and to Health Care Complaints Commission v Grieve [2016] NSWCATOD 28 at [99]-[114]. The decisions in these matters turn on the facts in each case. In Shrimpton a substantial risk was identified if the nurse, who had behaved inappropriately with vulnerable patients was able to engage in health care services involving patient care. In Grieve the Tribunal suspended the practitioner's registration and found a lack of insight into the offending conduct.
3. In this case the HCCC assert there is a "real and material" risk to the public if a prohibition order is not made by reference to the decisions in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172 as well as the authorities discussed above. In Menz the Tribunal explained at [18]-[19]: Because of our decision to make an order under s 149C(4), the power to make a prohibition order under s 149C(5) can be exercised: s 149C(5A). That power can only be exercised if we are satisfied that Mr Menz poses a "substantial risk to the health of members of the public" (emphasis added). Neither party addressed in their respective submissions the meaning of the expression "substantial risk" as used in s 149C(5) of the National Law. The Macquarie Dictionary offers a number of definitions. These include "…material nature; real or actual; of ample or considerable amount, quantity…". In IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585, Gummow, Hayne and Heydon JJ, commented at [154] that the word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Their Honours stated at [154] that which of the various possible shades of meaning the word bears is determined by the context. Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services.
4. After discussing the fact that the nurse had a criminal conviction for sexual assault of a 14-year-old girl, but had not offended, again the Tribunal said that his risk of so doing was low the Tribunal concluded at [21]-[22]. It falls to the Commission to establish that Mr Menz poses a substantial risk to the health of members of the public if he were to be involved in the provision of health services. At best, the available evidence supports a finding that he may pose a low risk to children. The question raised is whether the available evidence supports a finding that Mr Menz poses a real or actual risk to the health or safety of children in the provision of health services. Whether a risk assessed to be low can be properly characterised as substantial is a question of judgement and degree. We find on the available evidence that the Commission has failed to discharge the evidentiary burden of establishing that the risk posed by Mr Menz to the health and safety of the public in the provision of health services can be properly characterised as substantial. It follows that the power to make a prohibition order cannot be exercised.
5. Here the HCCC submit the practitioner poses a substantial risk by virtue of the lack of insight into the shortcomings of his knowledge and conduct.
6. We do not find that the HCCC has satisfied the evidentiary onus to warrant the making of a prohibition order. Any shortcomings in the practitioner's knowledge will be subject of careful evaluation on any re-instatement application. It is to be remembered that the events the subject this complaint occurred between 2017 and 2019. The practitioner has been suspended since April 2020. There is simply no evidence that he has, or is likely to, engage in a health service which poses a substantial risk to the public. We therefore will not make a prohibition order.

Costs

1. The HCCC seek an order that the practitioner pay its costs.
2. The Tribunal's power to make a costs order is found in Cl 13 of Schedule 5D. That clause provides as follows: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
3. The principles to be applied by the Tribunal when asked to make an order for costs are discussed by the NSW Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 34 as follows: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]).
4. In this case, there are no relevant factors which militate against the HCCC recovering its costs. Accordingly, we will order that the practitioner pay the costs of the HCCC as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

orders 1. Pursuant to s 149C (1) of the Health Practitioner Regulation National Law NSW (the National Law) the registration of Phuoc Loc Le (the practitioner) is cancelled 2. The practitioner may not seek a review of Order 1 for a period of one year from the date of these orders. 3. The practitioner shall pay the costs of the Health Care Complaints Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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: 29 July 2022