Kollias v Pharmacy Council of New South Wales - [2024] NSWCATOD 49 - NSWCATOD 2024 case summary — Zoe

NSWNSWCATOD

Kollias v Pharmacy Council of New South Wales

[2024] NSWCATOD 49

NCAT Occupational|2024-03-21

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2024-03-21

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Background

An issue which arose in this case, and which was not finally determined in Segal v Medical Council of New South Wales [2020] NSWCATOD 86, is whether the Tribunal has power to impose conditions on a practitioner's registration when determining an application for a stay under s 165L(2) of the National Law. In Segal, the Tribunal came to the preliminary view that there was merit in the Council's submission that the power in s 165L(2) does not extend to the granting of a stay with such conditions: Segal at [52]-[68].
In Hanna at [7], the Tribunal held that the Tribunal's power to grant a stay includes a power to stay a decision subject to such conditions as the Tribunal specifies. That approach was adopted in a decision on a second stay application involving Dr Hanna: Hanna v Dental Council of New South Wales [2023] NSWCATOD 71 at [23].
In this case the Council submitted, consistently with the submissions of the Medical Council in Segal, that the Tribunal has no power to impose conditions on a practitioner's registration when determining an application for a stay under s 165L(2) of the National Law. Mr Kollias submitted that, in the contemplation of the order sought by the applicant - a stay - the Tribunal ought to be satisfied that conditions on his registration would provide adequate protection to the health and safety of the public.
While these competing statutory interpretations were not the subject of detailed submissions, I have decided to express a view on this issue because it is unresolved and my view differs from the preliminary view expressed in Segal.

[2]

Relevant provisions

Section 165L(2) gives the Tribunal power to stay a decision of the Council in certain circumstances. Section 165L(1) and (3) provide for two other circumstances in which the Tribunal may make specific kinds of interlocutory orders. 165L Interlocutory orders [NSW] (1) The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand. (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. (3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if - (a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest.
Section 165L(1) gives the Tribunal power "during any proceedings under this Law" to make interlocutory orders of the kind listed in s 149A(b)-(f) of the National Law. Those powers are as follows: (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) [deleted]; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
The provisions of the National Law are "… intended to deal exhaustively with the circumstances in which a suspension decision can be stayed, terminated or waived." Medical Council of New South Wales v Lee [2017] NSWCA 282 at [96].

[7]

Legislative history and purpose

In Medical Council of New South Wales v Lee [2017] NSWCA 282 at [80]-[84], the Court set out the relevant legislative history of various provisions including s 150, s 150A, s 159B(1) and s 165L(2) of the National Law. Those provisions were introduced by the Medical Practice Amendment Act 2008 (NSW) which amended the then governing legislation, the Medical Practice Act 1992 (NSW). Sackville AJA noted at [81] that: ... the amendments were prompted by concerns about poorly performing or dangerous medical practitioners who were permitted to continue to practise for lengthy periods before any proceedings relating to their conduct came to the Medical Tribunal for determination.
In determining which of the two competing interpretations is correct, an interpretation that will best achieve the purpose or object of the National Law is to be preferred. Under cl 7 of Schedule 7 of the National Law: 7 Interpretation best achieving Law's purpose (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation. (2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.
The "main guiding principle" of the national registration and accreditation scheme is that the "protection of the health and safety of the public" is the "paramount consideration": National Law, s 3A.
The first interpretation best achieves the main guiding principle of the national registration and accreditation scheme. That interpretation allows the Tribunal, when determining whether to stay the decision of the Council, to also make a range of interlocutory orders to give effect to the paramount consideration - the protection of the health and safety of the public. Depending on the circumstance, the Tribunal could, for example, stay a suspension decision and make a separate interlocutory order imposing conditions it considers appropriate on the practitioner's registration.

[15]

Remedial action

Mr Kollias did not seek to rebut the findings of the first PRU report but wished to describe the remedial actions he had implemented to address the deficiencies. The Council considered whether Mr Kollias had implemented remedial action to eliminate the risk that his practise, knowledge and understanding pose a risk to the health and safety of the public.
The Council acknowledged that, to his credit, Mr Kollias had employed some new pharmacists, one of whom had specific knowledge in cannabis medicines dispensing. He had also engaged the services of a mentor pharmacist.
The Council concluded that Mr Kollias had failed to persuade them that he had improved deficiencies in record-keeping of S8 and S4 medicines, procedures within the pharmacy or his personal dispensing practice of cannabis medicine. The Council's concerns about diversion of cannabis were heightened during the hearing when it was revealed that 171 cannabis products were still not accounted for. Whether or not this was the correct amount, the Council considered that Mr Kollias had had a reasonable time to reconcile these differences but had not done so. The Council formed the view that there was a high risk that these products had been diverted, possibly posing serious risks to the health and safety of the public.
The Council was not reassured by Mr Kollias's claim that he had developed new Standard Operating Procedures (SOPs). He did not provide copies of any SOPs to the Council because of unidentified "proprietary interests." Mr Kollias could not explain to the Council how the SOPs had been communicated and implemented.
As for recent enrolment in CPD courses, the Council was not confident that Mr Kollias understands the importance of updating his knowledge of pharmacy practice at the time he needs it.
Of significant concern to the Council was that even during the hearing Mr Kollias failed to appreciate the significance of "red flags" displayed by several of his patients. He considered that as long as he confirmed the prescription with an interstate telehealth prescriber, that was sufficient to alleviate any concerns he might have about drug dose, titration, mixing of cannabis medicines and quantity and purpose of supply. He did not believe that consulting with a pain specialist or a psychiatrist was a worthwhile additional source of information. The Council concluded that Mr Kollias had no intention of changing his practices.

[21]

Failure to provide proper reasons

Mr Kollias submits that in their reasons the Council failed to identify the precise risk to public health and safety on 22 January 2024, if Mr Kollias were permitted to continue practising pharmacy.
At [56] the Council decided that the imposition of conditions would not adequately address the Council's concerns about the risks to health and safety if Mr Kollias's registration continued: Given the significant evidence of deficiencies in Mr Kollias's standard of practice, knowledge and understanding uncovered during the PRU investigation, particularly in relation to the storage, management and dispensing of cannabis medicines and the inability of Mr Kollias to provide reassurance that he had implemented remedial actions to address these deficiencies, we are of the opinion that imposing conditions on Mr Kollias's registration will not mitigate the risks to the health or safety of the public, or mitigate concerns regarding the public interest.
According to Mr Kollias, the Council did not explain why the existing prohibition orders imposed by the PRU, together with appropriate conditions, was inadequate to address any risk to health and safety and the public interest considerations.
The Council did not articulate their reasoning process in that part of the decision when conditions were being considered. But the reasoning process can be gleaned from a fair reading of the decision as a whole.
When determining whether it was appropriate to impose conditions on Mr Kollias's registration, the Council referred, in a general sense, to concerns about the storage, management and dispensing of cannabis medicines and Mr Kollias's failure to remedy these deficiencies. In that paragraph, the Council did not identify the precise risk to the health and safety of the public or the public interest if Mr Kollias is subject to conditions prohibiting him from possessing, supplying or manufacturing drugs of addiction and cannabidiol.
However, a fair reading of the decision as a whole reveals that Council had two main concerns. The first was the concern about continuing misappropriation or diversion of cannabis product. The second was that Mr Kollias had not adequately remedied the identified deficiencies in his practice.
On the first page of the decision under the heading "Introduction". The Council pointed out that "large amounts of S8 medicines might remain unaccounted for" and that Mr Kollias had had a reasonable time to reconcile these differences but had not done so. The Council went on to state that its concerns about diversion were heightened during the hearing when it was revealed that 171 cannabis products were still not accounted for. Mr Kollias disputed this amount but agreed that the discrepancies raise a "prima facie concern about diversion".
The potential for misappropriation or diversion led the Council to conclude that if Mr Kollias continued to be registered there was an unacceptable risk to public health and safety. Although not articulated, I understand the Council's reasoning to be that if the discrepancies are not merely recording errors, someone who had access to the unaccounted for cannabis products, including Mr Kollias, had consumed the products, given the products to someone else or sold the products illegally. As long as Mr Kollias was unable to account for what the discrepancies, there was a risk that cannabis had been, and could continue to be, misappropriated or diverted.
Council also expressed "great concern" that Mr Kollias had not kept detailed notes of his discussions with prescribers and had dispensed large quantities and combinations of cannabis medicines to individual patients. I have inferred from the decision, that one reason the Council was not confident that the imposition of conditions would address their concerns, was that Mr Kollias had not taken appropriate remedial action to address the issues it had identified.
Council could have articulated its reasoning process in more detail when considering whether to impose conditions on Mr Kollias's registration. However, when the decision is read as a whole, the nature of the risk is apparent. An appeal on the ground of inadequate reasons has little prospects of success.

[23]

Taking into account historical matters rather than assessing risk as at the day of the hearing

Mr Kollias highlighted parts of the Council's decision which spoke of his past experience. At [39] of the reasons, in response to Mr Kollias having participated in various continuing professional development (CPD) courses, the Council wrote: This seems to us to be far too late. An understanding of these very fundamental aspects of cannabis dispensing should have been part of his working knowledge for the two years that he and others at the Pharmacy have been dispensing cannabis medicines.
At [40] the Council concluded that Mr Kollias's failed to exercise professional judgment and autonomy when dispensing large quantities and combinations of cannabis medicines to individual patients. This was an area where his professional practice, knowledge and understanding posed a risk to the health and safety of the public.
At [49] the Council commented again on Mr Kollias's recent enrolment in CPD courses focusing on the dispensing of cannabis medicines. The Council expressed the view that they were "surprised and disappointed that Mr Kollias had not considered it imperative to acquire that knowledge as soon as his pharmacy commenced dispensing cannabis medicines."
At [51] the Council concluded that "… the dispensing practices adopted by Mr Kollias puts both his patients and the public at significant risk". According to Mr Kollias the use of the word "puts" in this sentence suggests that Council found that there was such a risk as at the date of the hearing on 22 January 2024. Mr Kollias submits that there could be no risk at that time because he was subject to the prohibition orders imposed by the PRU.
We understand the gist of this ground to be "taking into account immaterial facts" that is, facts about Mr Kollias's background or experience which are not relevant to an assessment of the risk to public health and safety when the s 150 hearing took place. The Council should have focused on the present circumstances.
This ground was not put as a ground of appeal with respect to a point of law. I cannot identify a point of law raised by these submissions and it follows that it has little prospects of success.

Parties

Applicant/Plaintiff:

Kollias

Respondent/Defendant:

Pharmacy Council of New South Wales

Legislation Cited (6)

Medical Practice Act 1992(NSW)

Medical Practice Amendment Act 2008(NSW)

or not any other such person is identifiable)": Poisons and Therapeutic Goods Regulation 2008(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Poisons and Therapeutic Goods Act 1966(NSW)

Poisons and Therapeutic Goods Regulation 2008(NSW)

Cases Cited (11)

Legal principles

Apart from the question as to whether the Tribunal may impose conditions on an appellant's registration in proceedings for a stay application, the principles applicable to stay applications under s 165L(2) of the National Law are uncontroversial. 1. The onus is on the applicant for a stay to "demonstrate a proper basis for a stay": Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694; Hanna v Dental Council of New South Wales [2023] NSWCATOD 54 at [9]; Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [43]. 2. The discretion in s 165L(2) of the National Law, must be determined having regard to the "main guiding principle" of the national registration and accreditation scheme which is that the "protection of the health and safety of the public" is the "paramount consideration": National Law, s 3A. Segal at [47]; Hanna at [8]. 3. "… the demonstration of an arguable appeal is a condition precedent to obtaining a stay. No court or tribunal would consider staying the operation of an order where it is clear that there was no realistic prospect of a successful appeal." Legal Service Commissioner v Baker [2005] QCA 482 at [30]; Segal at [97]. 4. "... the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree." New South Wales Bar Association v Stevens [2003] NSWCA 95 at [91] and [103]-[104]; Hanna at [8]; Segal at [45]. 5. A stay will normally be granted if there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 695; Segal at [94].
For the following reasons, to this list, I would add the following legal principle: 1. During proceedings under s 165L(2) of the National Law, as well as an order staying the decision, the Tribunal has power to make any one or more of the interlocutory orders listed in s 149A(b)-(f) of the National Law including an order imposing conditions it considers appropriate on the appellant's registration: National Law, s 165L(1).

[2005] QCA 482

(1985) 2 NSWLR 685

Cited By (2)

Kollias v Pharmacy Council of New South Wales

Kollias v Pharmacy Council of NSW