(1992) 67 ALJR 170
Pell v The Queen (2020) 268 CLR 123
Source
Original judgment source is linked above.
Catchwords
(1992) 67 ALJR 170
Pell v The Queen (2020) 268 CLR 123
Judgment (41 paragraphs)
[1]
Introduction
Consideration of this issue involves determining whether the respondent supplied himself with a schedule 4 (prescription-only) drug, namely pregabalin 300 mg capsules without a prescription, whether the respondent provided misleading, inconsistent and/or untruthful information to the Council and the Commission during their investigations concerning his conduct, and if so whether that conduct constitutes unsatisfactory professional conduct.
We are satisfied that pregabalin is a substance listed on Sch 4 of the Standard and that if he supplied himself with pregabalin the respondent did so without a prescription of a medical practitioner, a nurse practitioner, a midwife practitioner, an optometrist, a podiatrist, a dentist or a veterinary practitioner.
To establish the respondent engaged in the conduct constituting complaint one the applicant relies on the Wright statement, the CCTV files, and the admissions of the respondent.
To establish the respondent engaged in the conduct constituting complaint two the applicant relies on the following evidence:
1. the email of the respondent to the Council sent on 2 February 2020 (the respondent's 2 February 2020 email);
2. the Summary of Response dated 9 February 2020 of the respondent to the Cannon complaint (the respondent's 9 February 2020 response);
3. the evidence of the respondent to the delegates of the Council at the hearing under s 150 of the National Law on 18 February 2020 (the respondent's 18 February 2020 evidence);
4. the letter dated 27 May 2020 to the Commission (the respondent's 27 May 2020 letter).
To establish that the conduct constituting complaints one and two constitutes unsatisfactory professional conduct the applicant relies on the Code of Conduct for pharmacists dated 17 March 2014 made by Pharmacy Board of Australia under s 39 of the National Law (the Code of Conduct) and the Croker report.
Before considering this issue, we have summarised the evidence and submissions of the parties.
[2]
The Wright statement
Ms Wright was employed by Bowens Pharmacy as a Dispensary Assistant between November 2018 and April 2020. In the Wright statement, Ms Wright explains that on 21 January 2020, she overheard the respondent talking to another employee, Brodie, and heard him state "[w]hy would I do that when I can get them for free". She states that she witnessed that the respondent had taken a dose-aid roll containing Lyzalon® yellow and white capsules. She witnessed the respondent cut slits into the dose-aid roll, remove the capsules with tweezers, and put them into a pill container. When he was finished, the respondent rolled the dose aid roll up, and threw it in the bin.
[3]
The CCTV files
The first CCTV file depicts the respondent rummaging through a bin for a number of minutes, before removing a dose-aid roll from the bin and disappearing from the view of the CCTV footage (at 3:12-3:14 minutes). The second CCTV file depicts the same sequence of events, albeit from a greater distance and altered angle.
The third CCTV file depicts the respondent take the dose-aid roll to a bench, remove a pill container from his backpack, and depart with the dose-aid roll and the pill container. It subsequently depicts him returning to the backpack, and shows him placing the pill container back into his backpack (at 9:24-9:28 minutes).
[4]
The admissions of the respondent
In the respondent's 9 February 2020, response the respondent stated that "[i]t is uncontroversial that I did take a few rubbish tablets returned by customers".
In the respondent's 18 February 2020 evidence, the respondent:
1. despite claiming to have "destroyed" the tablets, nevertheless admitted to keeping a container of the pills, because "I thought I would just put the container on … my desk, convincing myself that I have taken the capsule, but I haven't, because it was in a [sic] already destroyed state as a placebo effect";
2. admitted having said those words "[w]hy would I do that when I can get them for free", but claimed it was in relation to a Netflix show and that he could download a show illegally rather than paying for the show.
[5]
The respondent's 2 February 2020 email
In the respondent's 2 February 2020 email, the respondent stated that he "did not consume" any prescribed drugs, because he had "already disposed of the rubbish drugs safely by returning to another pharmacy". He further stated "what I did was just due to a prudent act of having some medications on hands just in case to aid my sleep in order to cater for the increased workload required by your employer …. I have no time to consult a doctor, but feeling the comfort to have some medications on hand just in case, in order to better function my duty as a pharmacist".
[6]
The respondent's 9 February 2020 response
In the respondent's 9 February 2020 response, the respondent stated that he removed the drugs to have them on hand to aid his sleep due to an increased workload at the pharmacy. He further stated that he "felt more assured by having some appropriate pain drugs in pocket just in case, given that I have no time to consult medical doctor. I did this in good faith merely with a view to effectively function my duty as a pharmacist for the benefit of patients".
[7]
The respondent's 18 February 2020 evidence
In the respondent's 18 February 2020 evidence, the respondent stated that he had destroyed the drugs by piercing each capsule, transferring the powder to a pill container, and putting an alcohol swap on the contents to render them unusable, across two separate containers. He further stated that once he was dismissed, he "didn't feel as stressed", and because of this he went to a Chemist Warehouse and asked a pharmacist to dispose of the vial which he had taken home as a "placebo".
[8]
The respondent's 27 May 2020 letter
In the respondent's 27 May 2020 letter, the respondent stated that he had destroyed the drugs.
[9]
The Code of Conduct
The Code of Conduct relevantly contains the following provisions:
8 Professional behaviour
…
8.10 Investigations
Practitioners have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague. … Good practice involves:
a) cooperating with any legitimate inquiry into the treatment of a patient or client and with any complaints procedure that applies to a practitioner's work
…
9 Ensuring practitioner health
…
9.2 Practitioner health
Good practice involves:
…
b) seeking expert, independent, objective advice when a practitioner needs healthcare and being aware of the risks of self-diagnosis and self-treatment
[10]
The Croker report
In the Croker report, Ms Croker:
1. explains that a "RUM bin" is a container which is provided as part of the Return Unwanted Medicines Project, a Commonwealth government program to address the safe disposal of medicines. Once medication is returned from a patient, it is placed in the RUM bin for safe disposal, and that it would not be appropriate for a pharmacist to remove those medicines for use (except in relation to Schedule 8 medications, which have different disposal requirements);
2. explains that as at 21 January 2020, pregabalin was a Schedule 4 medication and there were no special requirements for its destruction, except that it be kept in a secure location;
3. as to a pharmacists' obligations with respect to self-administration of Schedule 4 medications, explains that the self-administration of any Schedule 4 medications without appropriate assessment and prescription is not appropriate, and that it should not be provided to any person (including themselves) without a prescription;
4. on the assumption of the correctness of the respondent's account, states that she does not agree with his characterisation of what he took home as "rubbish". Even if the capsules were treated in the manner he described which included piercing the capsule so contents were removed, and then placing alcohol swabs in a vial with them, although they would be rendered unusable they remain Schedule 4 medication, and as such need to be returned to the RUM bin for disposal;
5. on the assumption of the correctness of Ms Wright's account, states that the standard reasonably expected of a practitioner of similar training and experience to that of the respondent would be to ensure no Schedule 4 medications were removed from the pharmacy for self-administration or other supply purposes. The respondent's conduct would fall "significantly below" the standard expected. She notes that this version would "appear to suggest that [the respondent] deliberately chose to remove medications intact and presumably for his own or another person's use without a prescription".
[11]
The evidence of the respondent
We have examined the respondent's bundle of documents and make the following observations:
1. the respondent's 30 September 2022 submissions comprise 243 pages, being a ten pages' response dated 30 September 2022, followed by detailed submissions of 149 pages, 100 pages of which are dedicated to the transcript of the s 150 hearing, and criticism of the delegates of the Council. Various documents are then attached to the submissions (pages 160 to 243). We have ignored these criticisms because we have considered the evidence of the applicant for ourselves in arriving at our decision;
2. the respondent's 21 October 2022 submissions comprise 22 pages which appear to be a repetition of the respondent's 30 September 2022 submissions;
3. the following documents appear to be relied upon as evidence as opposed to submissions:
1. the 18 February 2020 transcript;
2. material published by the United States Drug Enforcement Administration (the DEA Material);
3. extracts of the Policy Directive entitled "Medication Handling in NSW Public Health Facilities" published with the document number PD2013_043 on 27 November 2013 by the Secretary, NSW Health (the Policy Directive).
[12]
The submissions of the applicant
In the applicant's 16 January 2023 submissions, the applicant made the following submissions:
1. the Tribunal would accept the account of Ms Wright, namely, that the respondent placed intact pregabalin tablets into the vial and removed them from the pharmacy, and would accept that (consistently with the respondent's earliest accounts), he did so for the purpose of using the medication himself;
2. the Tribunal would be satisfied that the respondent was willing to tell untruths to the Council in order to present himself in a better light. In particular, the Tribunal would not accept the respondent's account of having destroyed the drugs prior to removing them from the pharmacy. The fact that this account only emerged during the hearing under s 150 of the National Law on 18 February 2020, its absence from his prior written explanations to the Council, and the inherent improbability of the respondent's account (that he destroyed drugs to place beside his bed as a quasi "placebo" effect to make him feel drowsy), are such that the Tribunal would reject on the balance of probabilities this account;
3. in failing to be forthright and honest about the events the subject of complaint one, the respondent has fundamentally failed to cooperate properly with the legitimate investigation of this matter by the Council and the HCCC in breach of cl 8.10 of the Code of Conduct.
[13]
The submissions of the respondent
We are satisfied that the essence of the respondent's submissions to this issue has been set out in the 10 June 2022 Decision at [26]-[27]:
"[26] The gist of the submission in respect of Complaint One is to put in issue whether or not the pharmacist took the drugs (which he appears to dispute) and destroyed the drugs at the pharmacy although para 2.2 of the submissions appears to concede:
the respondent opted for an alternative route for the final disposal of a very minute quantum of "Destructed Rubbish" equivalent to one capsule …in his pill container, during the interim using it as "Token" for self "Placebo Effect" being influenced by prior reading "Streams in the Dessert" (a practical daily advisory book derived from the Bible" which states that, on 21-1 any year, a "Token of Salvation" for double claim of blessing
[27] The submissions refer to instances of asserted "placebo" effects. The submissions infer at 2.25 that the practitioner did not ingest the removed drug."
In the respondent's 21 October 2022 submissions the respondent made the following submissions:
1. as to complaint one:
1. particulars 1a), c) and d) are wrong;
2. he cannot recall saying the words in particulars 1b);
3. as to particulars 2 he did supply himself with one capsule, but it was not Lyzalon® because it had been destructed in a legal sense;
1. as to complaint two, he appears to deny that the information he provided to the Council and the Commission during their investigations concerning his conduct was misleading, inconsistent and/or untruthful information;
2. he relies on The Queen v The Herald & Weekly Times Pty Ltd [2021] VSC 253 (HWT) at [299] where J Dixon J found that the motive of each respondent was clear from the words they published, either as direct opinion or as statements of others adopted without criticism, and the notion of "compounding improbabilities" referred to in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [118]-[119].
[14]
Consideration
Having regard to the principles in Bronze Wing at [1], [37], [126]-[127] and Ghosh at [69]-[70], [137], we accept the evidence of Ms Wright in the Wright statement. Her evidence is corroborated by the CCTV files and the admissions of the respondent in the respondent's 9 February 2020 response and the respondent's 18 February 2020 evidence. It follows that we find that on 21 January 2020 the respondent accessed, removed, and took possession of 11 Lyzalon® 300mg capsules, and thereby supplied himself with pregabalin without a prescription. We also find that the respondent said words to the effect of "Why would I do that when I can get them for free?"
The various explanations of his conduct given by the respondent to the Council in the respondent's 2 February 2020 email, the respondent's 9 February 2020 response and the respondent's 18 February 2020 evidence, and to the Commission in the respondent's 27 May 2020 letter were inconsistent. To the extent that the respondent asserted that he destroyed the 11 Lyzalon® 300mg capsules in dose-aid roll and only took possession of one capsule, these explanations were untruthful.
We do not accept that the findings in HWT at [299] and Pell at [118]-[119] have any relevance to these proceedings.
In HWT, the Director of Public Prosecutions commenced proceedings seeking that various media organisations, editors, journalists and television/radio presenters be adjudged guilty of contempt of court. Those charges arose from the reports published in the media between 12-14 December 2018, following a jury's verdict that Cardinal George Pell was guilty of child sex offences. J Dixon J at [299] found that the motive of all but two respondents was clear from the words they published, either as direct opinion or as statements of others adopted without criticism. Unlike the position in HWT at [299], we are not making any finding as to the motive of the respondent.
In Pell, the High Court quashed the convictions of Cardinal George Pell for child sex offences. In relation to charges one to four the High Court held at [118]-[119] that the compounding improbabilities caused by three instances of unchallenged evidence required the jury, acting rationally, to have entertained a doubt as to Cardinal Pell's guilt. Unlike the position in Pell at [118]-[119], in these proceedings there is no relevant uncontradicted evidence giving rise to compounding improbabilities.
We do not accept that the DEA Material and the Policy Directive have any relevance to these proceedings. The DEA Material does not have any legal force in Australia. The Policy Directive did not apply to the respondent.
We accept the evidence of Ms Croker in the Croker report that by engaging in the conduct constituting complaint one the respondent's conduct fell significantly below the expected standard in providing pregabalin to any person, including himself, without a prescription. This conduct also fell below the standard in cl 9.2b) of the Code of Conduct. We are satisfied that the respondent thereby engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by him in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience within s 139B(1)(a) of the National Law.
We are also satisfied that in engaging in the conduct constituting complaint one the respondent engaged in improper or unethical conduct relating to the practice of pharmacy within s 139B(1)(l) of the National Law.
In providing inconsistent and untruthful explanations of his conduct given by the respondent to the Council and the Commission the respondent breached the standard in cl 8.10 of the Code of Conduct. We are satisfied that in engaging in the conduct constituting complaint two the respondent engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by him in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience within s 139B(1)(a) of the National Law.
We are also satisfied that in engaging in the conduct constituting complaint two the respondent engaged in improper or unethical conduct relating to the practice of pharmacy within s 139B(1)(l) of the National Law.
It follows that we find the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and (I) of the National Law.
[15]
Whether any such proved conduct of the respondent for complaints one and two, individually and cumulatively, constitutes professional misconduct
We are satisfied that the conduct constituting complaints one and two engaged in by the respondent is individually, and cumulatively, of a sufficiently serious nature to justify cancellation of his registration for the following reasons:
1. the self-supply of prescribed medication is a matter of significant concern, having regard to the trust that is necessarily reposed in pharmacists as persons permitted to supply prescribed substances, in accordance with legitimate prescriptions;
2. the respondent by his conduct on 21 January 2020 and various explanations of his conduct has demonstrated a disturbing lack of honesty and truthfulness in the practice of his profession. In particular, the respondent's contention that by rendering the 11 Lyzalon® 300mg capsules in dose-aid roll unusable they were no longer a Schedule 4 substance was untenable and lacked common sense. There was no proper justification for his conduct.
It follows that we find the respondent is guilty of professional misconduct conduct under s 139E(a) and (b) of the National Law.
[16]
Whether the respondent engaged in the conduct and demonstrated the characteristics constituting complaint four, and by reason of any such proved conduct and characteristics, individually and cumulatively, the respondent is not competent to practice as a pharmacist and is not otherwise a suitable person to hold registration as a pharmacist
[17]
Introduction
Consideration of this issue involves the findings at [78] and [79] above in relation to complaints one and two and determining whether the respondent:
1. failed, without reasonable excuse, to comply with a direction by the Council under s 145E of the National Law to undergo an examination by Dr Samuels, scheduled for 18 August 2020;
2. by his conduct constituting complaints one and two has demonstrated a lack of mental capacity, deficiencies in reasoning and diminished insight in relation to his professional obligations;
3. is vulnerable to significant influence by Mr Wong in relation to his insight into his professional obligations and responses.
To establish the respondent failed, without reasonable excuse, to comply with a direction by the Council under s 145E of the National Law to undergo an examination by Dr Samuels, scheduled for 18 August 2020 the applicant relies on the following evidence:
1. the letter dated 7 August 2020 of the Council to the respondent (the 7 August 2020 letter);
2. the letter dated 10 August 2020 of the respondent to the Council (the 10 August 2020 letter);
3. the Samuels report.
To establish the respondent by his conduct constituting complaints one and two has demonstrated a lack of mental capacity, deficiencies in reasoning and diminished insight in relation to his professional obligations the applicant relies on the same evidence as for complaints one and two as well as the Samuels report.
To establish the respondent is vulnerable to significant influence by Mr Wong in relation to his insight into his professional obligations and responses the applicant relies on the following evidence:
1. the transcript of the interview on 23 January 2020 between a representative of Bowens Pharmacy and the respondent which was attended by Mr Wong (the 23 January 2020 transcript);
2. the letter dated 23 January 2020 of Mr Wong to Bowens Pharmacy (the 23 January 2020 letter);
3. the email of Mr Wong to representatives of Bowens Pharmacy sent on letter dated 24 January 2020 (the 24 January 2020 email);
4. the 18 February 2020 transcript;
5. the Samuels report.
Before considering this issue, we have summarised the evidence and submissions of the parties.
[18]
The failure of the respondent, without reasonable excuse, to comply with a direction by the Council for a health assessment
[19]
The 7 August 2020 letter
The Council by the 7 August 2020 letter referred the respondent to a health assessment by Dr Samuels on 18 August 2020 pursuant to s 145E of the National Law.
[20]
The 10 August 2020 letter
The respondent in the 10 August 2020 letter asserted that it was not reasonable to require him to undergo an examination because the person who made the complaint against him has a "mental health problem", that the grounds of the complaint were not "valid and evidence-based", and that there were "no happenings that cast doubts on [his] ability to practice". In late January 2020 at the time of the incident, his "health condition seems to be not so good", and that by his workload he had been "pushed" to the "limit". He sought medical help on 25 January 2020 and 28 January 2020 and that on 28 January 2020 the "medical doctor said that my health problem has had much improvement and there should be no problem", indicating that his health condition in late January 2020 was "only temporary". Because the HCCC is empowered by s 21A of the Health Care Complaints Act 1993 (NSW) (HCC Act) to "check my medical record", the HCCC "has already investigated by medical history with no adversary [sic] results". Further, because psychiatric assessment is not required for the recruitment of various medical practitioners, it should not be imposed on him. Finally, the requirement to undergo an assessment is contrary to his fundamental common law rights and thus "illegal".
[21]
The Samuels report
In the Samuels report, Dr Samuels concluded that the presentation of materials to the Council and HCCC by the respondent, including his attempt to apply mathematical logic to the issues, the attaching of bizarre appendices and the illogical and inconsistent statements tend to suggest "the presence of possible thought disorder and emerging mental illness" as well as raising the "possibility of a paranoid disorder".
[22]
The lack of mental capacity, deficiencies in reasoning and diminished insight in relation to his professional obligations of the respondent
The applicant relies on the same part of the Samuels report as in [98] above.
[23]
The vulnerability of the respondent to significant influence by Mr Wong
[24]
The 23 January 2020 transcript
At the interview on 23 January 2020 the respondent was summarily dismissed from his employment with Bowens Pharmacy by letter dated 23 January 2020 which alleged serious misconduct on his part in relation to his access, removal and taking possession of pregabalin capsules (the 23 January 2020 Bowens letter). During this interview of 40 minutes Mr Wong substantially answered questions on behalf of the respondent and said he was entitled to speak on his behalf.
[25]
The 23 January 2020 letter
In the 23 January 2020 letter Mr Wong responded to the 23 January 2020 Bowens letter on behalf of the respondent.
[26]
The 24 January 2020 email
In the 24 January 2020 email Mr Wong requested the withdrawal of the 23 January 2020 Bowens letter in return for the resignation of the respondent with immediate effect.
[27]
The 18 February 2020 transcript
The 18 February 2020 transcript discloses that Mr Wong, who was the respondent's support person, repeatedly answered questions on his behalf. He was warned about this conduct by the delegates of the Council on three occasions, and at one point said, "I have made suggestions for his answers".
[28]
The Samuels report
In the Samuels report, Dr Samuels concluded:
"It is quite clear from the materials provided and his quasi-legal responses to the questions asked that he has been significantly influenced by his father who has attempted to advocate and communicate for him. He does seem to be echoing his father's interpretation of the Law."
[29]
The evidence of the respondent
We have not discerned any evidence as opposed to submissions in the respondent's bundle of documents.
[30]
The submissions of the applicant
The applicant's 16 January 2023 submissions include the following submissions:
1. as to the failure of the respondent, without reasonable excuse, to comply with a direction by the Council for a health assessment:
1. the direction in the 7 August 2020 letter referring the respondent to a health assessment by Dr Samuels on 18 August 2020 pursuant to s 145E of the National Law was reasonable, given the nature of the complaint against the practitioner;
2. the respondent's submissions to the contrary do not withstand close scrutiny for the following reasons:
1. whether or not the complainant has a "mental health problem" as alleged is irrelevant to the question of reasonableness;
2. the question of whether the complaint is "valid" and "evidence-based" is one that the HCCC submits the Tribunal will find in its favour;
3. the fact that the respondent concedes that there was some health condition influencing his behaviour at the time of the incident the subject of complaint one tends to support the conclusion that the direction was reasonable, not the contrary;
4. the HCCC has not exercised power pursuant to s 21A of the HCC Act to obtain the respondent's medical records;
5. whether or not psychiatric assessment is required for employment as a pharmacist is irrelevant to whether it was reasonable in the context of s 145E of the National Law;
6. the very existence of s 145E of the National Law is an answer to the Respondent's complaint of illegality by interference with his "common law rights" which are subject to legislative interference;
1. none of the arguments in the 10 August 2020 letter should be accepted, and none of them provide a reasonable excuse for the purposes of s 145F of the National Law;
1. as to the lack of mental capacity, deficiencies in reasoning and diminished insight in relation to the professional obligations of the respondent:
1. the conduct the subject of complaint one demonstrates, ipso facto, diminished insight into his professional obligations;
2. the conduct the subject of complaint two as well as the Samuels report demonstrates the respondent's lack of mental capacity, deficiencies in reasoning, and diminished insight into his obligations to regulatory authorities;
3. the Tribunal would be concerned by the following matters:
1. the respondent's repeated insistence that because he (purportedly) made the pregabalin unusable, he was no longer dealing with a Schedule 4 drug and that the complaint should have been dismissed on that basis. The reasoning is contrary to the expert evidence of Ms Croker which establishes that it remained a Schedule 4 drug;
2. the respondent's willingness to engage in misleading the Council, and his attempts to lay the blame for his conduct at the feet of the complainant based on irrelevant allegations of a mental illness on her part;
3. the respondent's conduct towards regulators, including his repeated allegations of unlawfulness or impropriety on their part, without any reasonable basis;
1. as to the vulnerability of the respondent to significant influence by Mr Wong, the 23 January 2020 transcript, the 23 January 2020 letter, the 24 January 2020 email, the 18 February 2020 transcript and the Samuels report amply demonstrates Mr Wong's level of influence and interference in these proceedings.
[31]
The submissions of the respondent
The respondent's 21 October 2022 submissions include the following submissions:
1. as to the failure of the respondent, without reasonable excuse, to comply with a direction by the Council for a health assessment, the matters relied upon by the applicant do not meet the threshold of reasonableness within s 145E of the National Law;
2. as to the lack of mental capacity, deficiencies in reasoning and diminished insight in relation to the professional obligations of the respondent, his conduct involved risk reduction by destroying a Schedule 4 drug rather than a lack of mental capacity;
3. as to the vulnerability of the respondent to significant influence by Mr Wong, the interjections were necessary to attempt to prevent wrong fact finding.
[32]
Consideration
We are satisfied that it was reasonable for the Council by notice in the 7 August 2020 letter to direct the respondent to undergo an examination by Dr Samuels, scheduled for 18 August 2020 for the following reasons:
1. the conduct constituting complaints one and two raised concerns about the mental capacity, reasoning, and insight of the respondent. These concerns were subsequently confirmed by Dr Samuels in the Samuels report;
2. the paramount consideration to be given by the Council to the protection of the health and safety of the public in the exercise of functions under the National Law required by s 3A.
We are satisfied that the respondent did not have any reasonable excuse for his failure to attend the examination by Dr Samuels on 18 August 2020. None of the reasons in the 10 August 2020 letter justified his failure to attend the examination for the reasons submitted by the applicant in [106(1)] above. Pursuant to s 145F(a) of the National Law this failure is evidence that the respondent does not have sufficient physical or mental capacity to practise pharmacy.
We are satisfied that the respondent, by his conduct constituting complaints one and two has demonstrated a lack of mental capacity, deficiencies in reasoning and diminished insight in relation to his professional obligations for the reasons submitted by the applicant in [106(2)] above.
We are satisfied that the respondent is vulnerable to significant influence by Mr Wong in relation to his insight into his professional obligations and responses for the reasons submitted by the applicant in [106(3)] above. The interference by Mr Wong at the hearing under s 150 of the National Law on 18 February 2020 demonstrates that the respondent has diminished control over his autonomy to the extent that his capacity to fulfil his professional obligations is compromised.
By reason of our findings in [108] to [111] above, we are satisfied that the respondent Is not competent to practice as a pharmacist within the meaning of s 139(a) of the National Law.
By reason of our findings in [78] and [79] above in relation to complaints one and two and [108] to [111] above, we are satisfied that the respondent Is otherwise not a suitable person to hold registration in the profession of pharmacy within the meaning of s 144(e) of the National Law.
[33]
Whether any protective orders should be made against the respondent
[34]
Introduction
The applicant in its letters dated 19 December 2022 and 12 January 2023 to the respondent advised that it is seeking orders that his registration as a pharmacist is cancelled and that there be a non-review period of two years.
Before considering this issue, we have summarised the submissions of the applicant. The respondent made no submissions on this issue.
[35]
The submissions of the applicant
In the applicant's 16 January 2023 submissions, the applicant made the following submissions:
1. the respondent has caused harm to the reputation of the profession of pharmacy and betrayed the public confidence which is necessarily reposed in pharmacists who have privileges associated with the supply of prescription-only drugs;
2. the respondent's conduct throughout the Council proceedings, the investigation, and these Tribunal proceedings, only exemplifies the risk that he poses to the public;
3. the respondent's conduct in the present case is clearly serious and capable of attracting the proposed protective orders. His repeated denials of any wrongdoing, obfuscation in respect of the events the subject of complaint one, and repetition of unsubstantiated allegations against the regulatory authorities, evidence his lack of insight into his conduct. Cancellation, along with a non-review period of two years, is appropriate to achieve the protective and deterrent purpose of the orders.
[36]
Consideration
We are satisfied that in light of our findings it is appropriate to cancel the registration of the respondent as a pharmacist pursuant to ss 149(a) and 149C(1)(a), (b), and (d) of the National Law and that there be a non-review period of two years pursuant to ss 149(a) and 149C(7) of the National Law. The conduct of the respondent constituting complaints one and two was serious, and his response to the Council and the Tribunal has demonstrated his lack of competence to practice as a pharmacist and his lack of suitability to hold registration as a pharmacist.
[37]
Whether the respondent pay the applicant's costs of the proceedings
[38]
Introduction
In the applicant's 16 January 2023 submissions, the applicant submitted that it would be appropriate for the respondent to be ordered to pay its costs of the proceedings. The respondent made no submissions on this issue.
[39]
Consideration
Having regard to the principles in Philipiah at [42]-[46], we are satisfied that it is appropriate to make an order pursuant to cl13(1) of Sch 5D of the National Law that the respondent pay the applicant's costs of the proceedings, including the costs reserved in the 10 June 2022 Decision.
[40]
Orders
We make the following orders:
1. the respondent's registration is cancelled;
2. the respondent may not apply for review of order (1) above for two years from the date of this decision;
3. the respondent is to pay the costs of the applicant of the proceedings as agreed or assessed.
[41]
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: 03 February 2023
On 22 December 2021, the applicant commenced these proceedings against the respondent by filing an application for disciplinary findings and orders, in which the respondent is referred to as the practitioner, and which relevantly provides:
"3. ORDERS SOUGHT
The Applicant seeks the following orders:
In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks:
1. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law, with a non-review period of 2 years
2. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law.
In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law.
GROUNDS FOR APPLICATION (INCLUDING PARTICULARS
The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a),(b) and (I) and/or professional misconduct within the meaning of section 139E and/or is not competent within the meaning of section 139(a) and/or not a suitable person to hold registration under section 144 (e) of the National Law."
On 11 March 2022, the applicant filed an Amended Complaint.
On 10 June 2022, the Tribunal dismissed the application for miscellaneous matters of the respondent filed on 28 January 2022 and reserved the costs of the application to the substantive hearing: Health Care Complaints Commission v Wong [2022] NSWCATOD 59 (the 10 June 2022 Decision).
On 8 July 2022, the Tribunal made procedural directions including an order that the respondent is to serve a reply and any material on which he relied on or before 30 September 2022.
On 19 October 2022, the applicant filed the documents on which it relies (the applicant's bundle of documents).
On 21 October 2022, the respondent filed the documents on which he relies (the respondent's bundle of documents).
On 23 December 2022, the Tribunal made a procedural direction that at the hearing the issues of culpability, and if appropriate any protective orders, would be considered.
The respondent has not filed any reply.
The proof of facts
In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52].
In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) at 362 Dixon J commented:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 (Neat Holdings) at 171 the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted]
Section 140 of the Evidence Act 1995 (NSW) (Evidence Act) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
In approaching this issue we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (Bronze Wing) at [1], [37], [126]-[127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14].
The second aspect of the rule in Browne v Dunn (1894) 6 R 67 is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70], [137].
Grounds for complaint about registered health practitioner
In Windsor v Health Care Complaints Commission [2020] NSWCA 110 (Windsor) at [112] Gleeson JA (Leeming JA at [143] and McCallum JA at [144] agreeing) made the following observations with respect to s 144 of the National Law:
"[112] The starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way for the purpose of s 144 of the National Law, when the Tribunal is exercising its powers under s 149C(1). That is, the underlying conduct relied upon for a complaint is not mutually exclusive to one of the complaints that can be made under s 144(a) to (e). …"
Professional misconduct
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [19]-[20] Basten JA (Leeming JA at [23] agreeing) relevantly said:
"[19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. …
[20] 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. …"
The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law
In Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA at [19]-[21] (Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law:
"[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. …
[20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:
1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.
2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.
3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
[21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm:
"[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
The exercise of the power of the Tribunal to award costs under Sch 5D cl 13 of the National Law
In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46] Emmett JA (Meagher JA and Beech-Jones J agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law:
"[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied.
[43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).
[44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
[45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.
[46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …"
No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88].
In Chen at [21]-[22] Basten JA (Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law:
"[21] Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.
[22] The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. …"
In Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [103]-[105] considered cancellation of registration was the only order available to appropriately protect the safety of the public where the practitioner cannot be trusted to tell the truth:
"[103] Engaging with one's professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional.
[104] The ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals. Mistakes happen. Covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions and services because of the real and present danger that such behaviour poses to the safety of patients. Without candid admissions and the provision of assistance to peers and superiors from a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented.
[105] A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in any and every health services setting.
[106] In these circumstances cancellation of registration was the only order available to appropriately protect the safety of the public. …"
In Chen at [88] Payne JA (Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law:
"[88] The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. … a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) 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."
In Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. Meagher JA at [74] (McColl JA at [1] and Ward JA at [91] agreeing) relevantly held:
"[74] The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. … In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. …"