Ibrahim v Pharmacy Council of NSW

The factual background

1. A great deal of the relevant factual background to these appeal proceedings is uncontroversial. The appellant was initially registered as a pharmacist overseas and practised as such for a period of 12 years prior to migrating to Australia. He has been a registered pharmacist working in the Sydney Metropolitan area since 2010. During the last 3 years the appellant has been regularly employed full-time at a suburban pharmacy.
2. Between 8:35 PM and 8:43 PM on 1 July 2019 a 19 year old female entered the pharmacy and spoke with a female employee indicating that she wished to speak to someone concerning a "morning after pill." She was informed that she would require a private consultation with a pharmacist and was directed to wait. The appellant was the sole pharmacist on duty at that time and therefore the pharmacist in charge. The appellant took the female customer into a private consultation room. The customer alleged, and the appellant denied, that he inappropriately sexually assaulted her during the course of the consultation. She complained to the police who investigated the matter and after interviewing the appellant charged him with a number of criminal offences. Publicity that the appellant had been charged with these offences led to the respondent convening proceedings under section 150 of the National Law, resulting in a determination to suspend his registration, from which the appellant now appeals.
3. For the purpose of conducting these appeal proceedings we have available to us the reasons for decision of the delegates of the Council, a Court Attendance Notice issued by NSW Police which contains details of the offences with which the appellant has been charged and a Facts Sheet prepared for the purpose of the prosecution, and four affidavits provided by the proprietor of the pharmacy, two employees of the pharmacy and the appellant. In addition, the appellant has provided us with a recording of an interview with two investigating police officers.
4. We shall shortly discuss the nature and extent of the information and evidentiary material upon which a decision may be made to suspend registration or take other appropriate action under section 150 of the National Law. We wish to emphasise that the narration which follows is based upon allegations and counter allegations and is not intended to express any concluded view about any factual matter. As will be seen, our consideration of the underlying factual circumstances for the purpose of these proceedings is entirely different to any consideration of those circumstances for the purpose of any criminal proceedings or for the purpose of any disciplinary proceedings which might possibly be taken against the appellant in the future.
5. Information provided by the female customer to the investigating police officers is that she was asked to see the appellant in a consultation room which was constructed of frosted glass so that those inside it could not be seen from the outside. She said that she sat on a chair and the appellant remained standing. There was then a discussion about whether she had had intercourse and whether her partner had ejaculated inside her. She indicated that she did not remember because both she and her partner were drunk. She then said that the appellant told her that he wanted to examine her to see whether her partner had ejaculated inside her and the appellant lifted up the garment she was wearing. She was not wearing underwear and he inserted his left index finger into her vagina several times. She also accused the appellant of squeezing her right breast. The female customer then stood up and the appellant began rubbing her buttocks. She then moved away from the appellant and attempted to call her boyfriend while still inside the room. She said the appellant tried to stop her and there was an argument. The female customer left the room and alleges that she had a conversation with staff members about what had occurred.
6. The female customer then called the police who arrived at the pharmacy, arrested the appellant and took him to a local police station where DNA swabs were taken, and an interview was conducted.
7. During the course of the interview the appellant denied that he had sexually assaulted the female customer. He informed the police officers that she had become agitated during the course of the consultation which had lasted for 2 to 3 minutes only and he had touched her briefly on her left shoulder using his right hand to calm her down. CCTV footage indicated that the consultation lasted some 8 minutes.
8. Later a DNA profile matching that of the female customer was located on the appellant's left index finger. This led to the appellant being arrested and charged with 3 offences under the Crimes Act 1900 being sexual intercourse without consent and 2 counts of sexually touching without consent.
9. The affidavits of the proprietor of the pharmacy where the appellant worked at the time that the offences allegedly occurred, a pharmacy assistant and the assistant manager at the pharmacy all attested that they considered the allegations made against the appellant as being completely out of character. They were all confident that the appellant could continue to be employed at the pharmacy in a restricted role which did not involve private consultations with customers.

The nature of these appeal proceedings

1. It is uncontroversial that the use of the word "reconsideration" in section 159(3) of the National Law renders the hearing before us as a hearing de novo. Accordingly, in determining these proceedings we are, in effect, hearing the matter afresh, and our decision will be based upon such evidence as was adduced during the course of the proceedings.

The principles which apply to hearings conducted under section 150

1. The principles which apply to section 150 proceedings were summarised by this Tribunal in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115. After considering a number of relevant authorities the Tribunal said at [56]; We make the following observations concerning the underlying principles which we perceive to apply in the circumstances of these proceedings: (1) The exercise of the power to suspend will have grave consequences for a medical practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. The grave consequences are accommodated within the need to ensure that we are satisfied to the Briginshaw standard that we can safely make the conclusions necessary to make a determination that section 150 is enlivened including a consideration of the nature and status of the material upon which any such conclusions are made. (2) The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that those exercising it need not embark upon a detailed enquiry, and may base their reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (See the cases cited in R and Medical Board of Australia [2013] WASAT 28 at [24] and following). (3) Section 150(6) arguably requires that notice be given to the practitioner before any order of suspension, or any other order under that section has been made. The practitioner will always have an opportunity of addressing the decision-makers prior to any determination being made. (4) Nevertheless, the "draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R and Medical Board at [28]). (5) It will also require the formation of a "reasonable belief... That because of the health practitioner's conduct (or) performance...., the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety" (R v Medical Board at [28]), or to do so otherwise in the public interest. This quotation needs to be qualified to the extent that "necessary" is not the test contained in the Act. (6) Any conclusions which are made in the course of determining that section 150 is enlivened are made for the purpose only of that determination, by reason of the ability to rely on information and material which may not otherwise be strictly admissible in administrative or judicial proceedings. (7) It is also necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions: (a) There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest. (b) These requirements are expressed to be in the alternative. (c) The manner in which the introductory words of subsection (1) are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word "otherwise" and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is "otherwise in the public interest", in the sense that health or safety are matters within the public interest. That is, public health and safety are within public interest, but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference, in general terms, is between health and safety being subsumed generally within public interest, or health and safety being exclusive of public interest. If the former is correct, then arguably, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the findings should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. The respondent submitted that the provision operated so that "otherwise" would mean "in some other way". Therefore, the health and safety element is subsumed within the public interest. We do not understand the appellant to have made a contrary submission. As this approach to construction appears to us to reflect the overall intention of the section, we shall apply it for the purpose of these proceedings. (d) In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons. (e) By subsection (4), action may be taken by the Council under section 150 whether or not a complaint has been made or referred to the Council about the medical practitioner. Accordingly, if information comes to the attention of the Council in whatever manner, the provisions of section 150 are enlivened. Of course, having regard to the nature and extent of the powers under section 150 it is a trite observation that the Council must observe the strictures imposed by section 150 (1), and must do so in a responsible and appropriate manner. It would be a rare situation if the Council determined to take action to suspend or otherwise impose practice conditions without having first notified the practitioner and given him or her some opportunity to explain his or her circumstances. Of course, one might envisage urgent situations arising where there might be no time or opportunity to notify the practitioner. The urgency and apparent gravity of the situation may dictate the nature and extent of the information relied upon in dealing with a matter. (f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. (g) Section 150 empowers the Council to either suspend or impose conditions on the registration of the medical practitioner if circumstances warrant either of these steps. These powers are also available in circumstances where complaints have been initiated against a medical practitioner under the Act. The exercise of those powers by the Medical Tribunal is conditional upon findings of unsatisfactory professional conduct or professional misconduct. The process which we are undertaking is removed from any consideration of whether the medical practitioner might, at some stage, be found guilty of either unsatisfactory professional conduct or professional misconduct on the basis of some complaint which to date has not been initiated. We agree with the observations of Beech-Jones J in Berger previously set out, and we adopt the following from his Honour's judgement at [17] - [18]: .... to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application.... In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended. (h) There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary.
2. The respondent submitted that the reference to the Briginshaw principle set out in (4) in the extract from Crickitt (No 2) above was incorrect, relying upon the following extract from the decision of the Tribunal in Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 at [27]; The standard set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, which requires the Tribunal to determine the occurrence or existence of the relevant facts on the balance of probabilities, does not apply in proceedings such as those under s 150: R v Medical Board of Australia [2013] WASAT 28 at [105] - [106]; Shahinper v Psychology Board of Australia [2013] QCAT 593; Colquhoun v Psychology Council of NSW [2011] NSWPST 3 at [13]. Thus the Council, or Tribunal in the case of appeal, does not determine whether the alleged conduct in fact took place, but rather, whether there is a basis for satisfaction under s150 (and s150C) that it is "appropriate" to impose conditions for the protection of the health or safety of any person or persons, or because the imposition of conditions is otherwise in the public interest.
3. The submission of the respondent misstates the circumstances in which the reference to the Briginshaw principle or approach was made in Crickitt (No 2). That reference was to the assessment process by which the Tribunal would be persuaded that there was an appropriate basis to make an order under section 150. This conclusion was in turn based upon observations of Beech-Jones J in Berger v Council of the Law Society of New South Wales [2013] NSWCA 336, albeit that his Honour was considering the power to suspend the registration of a solicitor under admittedly different legislation. Nevertheless, having regard to the "draconian" nature of the power of suspension and the consequences for the practitioner, we regard the following observations in Berger as being relevant by analogy to our determination of these proceedings; 19. I have already discussed the protective nature of the power conferred by s 548(2). It suggests that the effects of a suspension on the personal interests of the solicitor are of little moment when considering the exercise of the power. However the interests of the solicitor are still relevant in a number of ways. First, the very significant effect that suspension may have upon their interests invokes the principles discussed in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 especially where, as in this case, the matters alleged are serious (Evidence Act 1995, s 140(2)) (We observe for completeness that we are not bound by the Evidence Act and the legislation being considered in Berger was relevantly different because the power of suspension could only be exercised if it was "necessary" to do so in the public interest.)

The reasons for decision of the delegates

1. On one view it is not necessary for us to consider the reasoning of the delegates of the Council because we are considering the matter afresh. However, the respondent embraced the reasoning of the delegates, and for this reason it is necessary that we refer to it.
2. The delegates did not have available to them the four affidavits which we have briefly described. However, they did have available to them all of the police generated information to which we have referred together with the audio recording of the police interview. After considering this information the delegates said that they would "make no comment whatsoever concerning the facts of the offences" because the criminal proceedings had not been heard. The delegates then proceeded to discuss the issues confined "strictly to the fact that the Police have laid serious charges against Mr Ibrahim and the discussion concerns the determination of the public interest in relation to those charges, as they apply to a registered pharmacist in the course of his duties."
3. In determining what was in the public interest the delegates noted that the protection of the health and safety of the public was the paramount consideration by reference to the provisions of sections 3 and 3A of the National Law. The delegates concluded that the public interest was triggered because charges of sexual assault had been made against the appellant in circumstances where the incident involved his practice as a pharmacist. In their opinion this was sufficient of itself to raise "concerns as to whether the public can have confidence that their health and safety would be protected were Mr Ibrahim to continue working…. In addition, the public confidence in the profession would be greatly diminished if the public thought that a pharmacist who had been charged with sexual assault upon a customer were able to continue to practice as a pharmacist while the judicial processes were in progress. Maintaining the necessary standard of practice, including ethical conduct, is at the core of public confidence in the Pharmaceutical profession." The delegates concluded that the fact that charges of sexual assault occurring in the context of a professional consultation was sufficiently grave "to suggest that a threat exists to health and safety of the public and to undermine public confidence in the profession, and it is therefore in the public interest that action be taken against Mr Ibrahim."
4. The delegates then determined that the public's level of concern and expectation would not permit the appellant to be entitled to continue to practise as a pharmacist under any circumstances, and rejected the appellant's submission that he should be permitted to continue to practise, albeit with appropriate conditions imposed on his registration.

Consideration

1. The appellant did not ultimately contend that his suspension should, in all the circumstances, be entirely revoked. It was submitted on his behalf that appropriate practice conditions could be formulated which would be sufficient to protect the public interest, and which would enable him to continue to earn a living whilst the criminal proceedings remained on foot. It was stressed on his behalf that he rejected the police evidence, maintained his innocence and was entitled to a presumption of innocence.
2. The respondent relied upon the reasoning adopted by the delegates, which we have outlined above. However, when we engaged with counsel for the respondent about whether the mere fact that these criminal proceedings had been instituted would of itself be sufficient to justify action being taken under section 150, Ms Hall acknowledged that it was necessary to establish some basis for the exercise of the discretion under section 150 in addition to the fact that criminal proceedings had been instituted. Indeed, this was the approach adopted by counsel in her extensive written submissions.
3. In our opinion it is necessary to descend into some level of detail concerning the known factual circumstances to determine whether there can be satisfaction that it is "appropriate" for the protection of the health or safety of any person or persons, or that there can be satisfaction that it is in the public interest that action be taken under section 150. Such satisfaction is not met by the mere fact that criminal proceedings against the respondent have been instituted.
4. What is relevant is the fact that the circumstances against which the criminal proceedings have been instituted involve conduct of the respondent in the course of practising his profession as a pharmacist. Furthermore, whilst we acknowledge that we are not required to and we do not engage in any fact finding exercise which will have any bearing on the ultimate outcome of the criminal proceedings or any disciplinary proceedings which might be instituted against the respondent, we do note that there are a number of features of the underlying factual circumstances which we take into account in determining these appeal proceedings. These are; 1. the presence of matching DNA material on the appellant's left index finger 2. the fact that the female customer complained immediately to staff at the conclusion of the consultation and thereafter called the police 3. the inconsistency between the time period of the consultation assessed by the appellant being 2 to 3 minutes and that revealed by the CCTV recording of 8 minutes
5. We again stress that these are matters which we take into account only for the purpose of our assessment of whether or not it is appropriate to take action under section 150 of the National Law. We conclude that having regard to all of the matters set out in [28] above we are satisfied that it is appropriate for the protection of the health or safety of the public, and to the extent that the health or safety of the public is in the public interest, that it is in the public interest that an order be made under section 150(1) of the National Law. These matters in the aggregate are sufficient to enliven the provisions of that section. There is a requirement to protect members of the public against the possibility that the appellant might engage in conduct of this kind. Furthermore, there is public interest in action being taken to preclude the public again being exposed to conduct of this kind.
6. Having so determined it is necessary to consider what order should appropriately be made under section 159C of the National Law. In considering this matter we take into account the fact that we have not been informed of any other matter adverse to the appellant having previously come to the attention of the Council. Furthermore, there is no suggestion that the respondent lacks competency in his practice as a pharmacist. Finally, the misconduct alleged against the appellant is confined, albeit the allegation is of a very serious nature.
7. If we were to confine ourselves to the protection of the health or safety of the public, we are of the opinion that it could be appropriate to permit the appellant to continue to practise as a pharmacist provided that he was precluded from contact with members of the public. The respondent submitted that there was a risk to the health or safety of the public if the appellant were permitted to interact with anyone. Mr Robinson correctly pointed out that such a submission is inconsistent with the fact that the appellant has been released on bail pending the outcome of the criminal proceedings. We can detect no relevant risk if the appellant were permitted to work in a dispensary with no interaction with the public. The respondent also suggested that even if the appellant were to leave the dispensary for a toilet break, he would pose a risk to the safety of the public. We reject these submissions as being fanciful.
8. On one view, any such prohibition against interaction with customers could extend only to female members of the public. However, if the appellant is to be permitted to continue to practise as a pharmacist subject to appropriate conditions, they must be conditions which are capable of having practical application.
9. This then raises the question whether or not such a practice condition would satisfy the public interest. Unless it can be determined that there is some public interest in the appellant being precluded from practising in any manner as a pharmacist in the circumstances pending the outcome of the criminal proceedings other than by reference to the health and safety of the public, there is no reason why he should not be permitted to continue to practise as a pharmacist subject to appropriate practice conditions being imposed upon his registration. The only public interest asserted by the respondent was that which arose by reason of the institution of the criminal proceedings per se, which we have previously determined is not a matter of itself which would justify suspension of registration. In these circumstances it is appropriate to consider whether and what practice conditions are appropriate.
10. Fortunately, the parties were able to reach agreement concerning appropriate practice conditions, on the basis that we determined firstly that an order should be made under section 150(1) of the National Law, secondly that suspension was not appropriate and thirdly that practice condition should be imposed. Those conditions as agreed are as follows; 1. Mr Ibrahim be confined to work solely in the dispensary of any pharmacy 2. Mr Ibrahim not be permitted to interact with any customers during the course of his work 3. Mr Ibrahim must not be employed as a pharmacist in charge 4. Mr Ibrahim must at all times work only in a pharmacy in which there is another pharmacist on duty 5. Mr Ibrahim's employer must provide a written acknowledgement to the Pharmacy Council of NSW ("the Council") that he or she is aware of the conditions imposed on Mr Ibrahim's registration 6. Mr Ibrahim must notify the Council of any changes in his employment 2 weeks prior to commencing any new employment 7. The management of the pharmacy in which Mr Ibrahim is employed must ensure that an appropriate sign is displayed to indicate that Mr Ibrahim is not permitted to work otherwise in accordance with conditions 1 to 4 above 8. All employers of Mr Ibrahim must provide to the Council monthly reports signed and completed by the pharmacist in charge confirming compliance by Mr Ibrahim of conditions 1 - 4 and 7 for all days on which Mr Ibrahim has worked

Costs

1. Neither party sought any order for the payment of costs.

Orders

1. Consequent upon the findings which we have made we make the following orders; 1. Appeal allowed. 2. The decision of the Delegates of the Pharmacy Council of NSW made 23 August 2019 to suspend the registration of the appellant as a pharmacist is set aside. 3. The following conditions relating to the appellant's practice as a pharmacist are imposed on his registration namely; 1 To be confined to solely work in the dispensary of any pharmacy. 2 Not to be permitted to interact with any customers during the course of his work. 3 Not to be employed as a Pharmacist in Charge in any pharmacy. 4 Must at all times work only in a pharmacy in which there is another pharmacist on duty. 5 To provide a written acknowledgement from his employer to the Pharmacy Council of NSW (Council) that he/she is aware of the conditions imposed on Mr Ibrahim's registration. 6 To notify Council of any changes in his employment 2 weeks prior to commencing any position. 7 To prominently display a signage within the pharmacy in which he is employed that reads the "Pharmacist in the dispensary is not to advise or consult with customers/patients. Please see the Pharmacist in Charge." 8 To provide Council with monthly reports signed and completed by the relevant Pharmacist In Charge confirming the following during the days in which Mr Ibrahim has been working in the pharmacy: a. Mr Ibrahim's compliance with conditions 1, 2, 3 and 4; and b. that the sign referred to in condition 7 is displayed in the pharmacy.

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: 12 December 2019