PHARMACY BOARD OF AUSTRALIA and HEGDE [2020] WASAT 89 | Case summary

PHARMACY BOARD OF AUSTRALIA and HEGDE [2020] WASAT 89 | Case summary | Zoe

[45]

As is set out in the Agreed Facts and Findings, the parties agree that the respondent engaged in 'professional misconduct' for the purposes of the National Law. That is the issue to which we will now turn.
Under the National Law 'professional misconduct' is 'unprofessional conduct' which can be either constituted by a single act, or a series of acts considered together, that represents conduct which is substantially below the standard to be reasonably expected. Furthermore, conduct by a practitioner, whether connected to their profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration, can also be professional misconduct.
However, as was explained by Hill J in Nursing & Midwifery Board of Australia v Corderoy [2020] WASC 247, the definition of 'professional misconduct' in s 5 of the National Law is inclusive and is not an exhaustive statement of the concept: at [61].
The concept of 'professional misconduct' was explained in detail by Vaughan JA in Panegyres at [151]-[157] (Buss P and Murphy JA agreeing at [11]). Professional misconduct still includes the test of 'infamous conduct in a professional respect' which was adopted in Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750 (Allinson); Panegyres at [152]; Medical Board of Australia and Roberts [2014] WASAT 76 at [175].
By reason of the Agreed Facts and Findings, the respondent and the Board consider that the respondent's misconduct constitutes 'professional misconduct' for the purposes of the National Law. We agree.
The respondent's misconduct during the Relevant Period was intensive and voluminous. During the Relevant Period there were 4737 dispensing episodes (at an average dispensing rate of 296 per month). The total number of patients for whom prescriptions were dispensed during the Relevant Period is 828. The respondent undertook compounding training in order to be able to compound and dispense anabolic steroids.
As we will explain in more detail later in these reasons, the respondent's conduct was hazardous in that his dispensing resulted in elevated risks to his patients. The misconduct extended over 16 months.
The respondent's conduct was substantially below the standard of conduct that reasonably expected of a pharmacist with the respondent's experience. Having regard to the risks associated with the dispensing (to both his patients and also the public), it was also conduct that may properly be regarded as 'disgraceful or dishonourable' in the sense explained in Allinson (at 763). The conduct was inconsistent with the respondent being a fit and proper person to hold registration as a pharmacist.

[49]

The Tribunal's jurisdiction is protective rather than punitive. The purpose of disciplinary proceedings is to protect the public, not to punish the practitioner in a criminal law sense. A disciplinary tribunal protects the public by making orders the effect of which is to prevent persons who are unfit to practise from practising, or by making orders to secure the maintenance of proper professional standards: Singh Appeal at [30] (Quinlan CJ and Pritchard JA); Khosa v Legal Professional Complaints Committee [2017] WASCA 192 at [37] (Buss P), [188] (Murphy & Beech JJA) (Khosa).
A disciplinary tribunal will also consider protection of the public, and also the relevant profession, by making orders which will assure the public that appropriate standards are being maintained in the relevant profession: Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at [41] (Doyle CJ) (Craig); Khosa at [37] (Buss P), [188] (Murphy & Beech JJA).
The plurality in the Singh Appeal noted that protection of the public may include the need to make orders the effect of which is to 'bring home to the practitioner the seriousness of their conduct and the need to deter the practitioner from future breaches': at [32]. Such an order may be regarded as 'specific deterrence'.
Furthermore, the plurality also observed that protection of the public may require an order to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. An order of that kind may be regarded as akin to 'general deterrence': Singh Appeal at [32]. See also Craig at [47] (Doyle CJ).
The need for deterrence of others in the pharmaceutical profession from engaging in similar conduct, as an aspect of the protection of the public, was also discussed in Pharmacy Board of Australia and Nyoni [2018] WASAT 134 at [36] (Nyoni) citing Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 (Gleeson CJ, Meagher JA, Handley JA).
Where there is a choice of sanctions available, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public: Quinn v Law Institute of Victoria [2007] VSCA 122; (2007) 27 VAR 1 at [31] (Maxwell P) (Quinn).

[76]

As set out at [30] above, in terms of the volume of dispensing, the electronic schedule (Exhibit G) shows that during the Relevant Period there were 4737 dispensing episodes at an average of 296 dispensing episodes per month.
The electronic schedule was, however, incomplete. The respondent did not include Primoteston Depot in the electronic schedule but which he, by his own evidence, did dispense during the Relevant Period.
The electronic schedule refers to 907 patients. Of those, only 79 were not the subject of a dispensing episode during the Relevant Period. The total number of patients for whom prescriptions were dispensed during the Relevant Period is 828.
In terms of the respondent's dispensing practice, the applicant submits that for patients in respect of whom there was a recognised therapeutic indication for the drugs, would never require more than one anabolic androgenic steroid at one time to treat the relevant condition: Exhibit C, page 669. However, the electronic schedule shows that the respondent (and his employees) routinely dispensed multiple anabolic androgenic steroids to patients in single transactions.
Furthermore, the respondent would dispense multiple prescriptions to individual patients on the same date and in quick succession. The applicant's submissions refer to the report of Ms Seubert who provided an opinion to AHPRA on the respondent's dispensing practice on 11 November 2016.
Ms Seubert noted that a patient had been dispensed 87 injectable doses of anabolic steroids as well as 200 oral doses in a 47 week period. Ms Seubert outlined that if a patient was using the maximum injectable dosage (one ampoule every two weeks) only 24 ampoules would have been required. Ms Seubert's opinion was that the patient was provided with anabolic steroids at a rate of 3.6 times the maximum required number of injectable doses as well as the oral doses: Exhibit C, pages 669-670.
Another example involved the dispensing of 369 doses of anabolic steroids as well as 630 oral doses. If the patient was using the maximum injectable dosage (one ampoule every two weeks) only 25 ampoules would have been required. Ms Seubert considered that the dispensing rate was 14.8 times higher than the maximum required number of injectable doses as well as the oral doses. Other examples were also provided: Exhibit C, pages 669-670.

[80]

As stated at [30] and [71] above, the dispensing schedule shows that there were 4737 dispensing episodes during the Relevant Period. The applicant submits that of the dispensing episodes, 2328 (or 49%) related to prescriptions from Dr Durston and 2090 (or 44%) relate to prescriptions from Dr Ismail. These two doctors accounted for 93% of the dispensing of anabolic steroids in the dispensing schedule: Exhibit G.
The applicant does not accept that the respondent called these doctors to check when prescriptions were endorsed with reg 24 of the NH(PB) Regulations. It says that the respondent's evidence in this regard cannot be accepted as truthful because Dr Durston's evidence was that he never endorsed what were private prescriptions with a reg 24 endorsement. This was because reg 24 did not apply to such prescriptions because they were private prescriptions, and not part of the Pharmaceutical Benefits Scheme (PBS), governed by the National Health Act 1953 (Cth): Exhibit A at paras 10 - 12.
Furthermore, in giving his evidence the respondent could not recall the location of Dr Durston's practice. Given the volume of calls that would have been made (having regard to the fact that 44% of the Pharmacy's dispensing of anabolic androgenic steroids were from prescriptions written by Dr Durston) the applicant observes that there would have been very frequent contact between the two. Furthermore, the applicant notes that given the very large of number of telephone calls that would have occurred during the Relevant Period, the applicant called no employees to give evidence as to the practice of calling doctors to discuss prescriptions.
The applicant submits that even where a prescription is endorsed with reg 24, it is incumbent on the pharmacist (as the 'gatekeeper') to consider whether that endorsement was appropriate. The pharmacist ought to consider the relevant therapeutic indication and, if required, to make necessary enquiries and to seek necessary explanations and to be satisfied of their credibility.
Furthermore, where a pharmacist does dispense larger quantities of drugs than otherwise permissible on account of a reg 24 endorsement, and the relevant patient was frequently in attendance at a pharmacy, there would be obvious grounds for a pharmacist to refuse supply. The applicant submits the respondent dispensed excessive quantities of anabolic steroids to multiple patients, apparently on the basis of reg 24 endorsements, when the requirements of the regulations were plainly not met.
In addition, if, as the respondent's evidence suggests, he regularly spoke with Dr Durston in relation to such prescriptions, then he should have informed Dr Durston that the necessary requirements for the making of a reg 24 endorsement were not met as the patients were regularly able to attend the Pharmacy.
The applicant submits that the respondent still does not understand his obligation as a pharmacist in a situation where a reg 24 prescription is presented. For example, under crossexamination the respondent deferred to the fact that the prescription had been written by the doctors, but did not consider the underlying false premise under which the reg 24 endorsement had been made - that the patient could attend the Pharmacy without difficulty: ts 68, 20 September 2019.
Furthermore, the respondent also sought to justify the dispensing of anabolic steroids on the basis of reg 24 endorsements where patients had, apparently, 'lost' the drugs: ts 71-72, 20 September 2019. The applicant submits that the respondent's evidence does not address the fundamental issue that there was no basis for a reg 24 endorsement given that patients were able to frequently attend the Pharmacy.
The respondent was carefully cross-examined on this aspect of his dispensing practice: ts 7175, September 2019. The applicant submits that the respondent's answers demonstrated a persistent lack of knowledge and understanding of his professional obligations and that, as a result, the respondent 'cannot be relied upon to meet the fundamental obligations of a pharmacist necessary to safeguard the public': Applicant's Closing Submissions at para 78.
The respondent's evidence (Exhibit F at para 29) is that:

[82]

The applicant submits that the respondent's evidence is 'implausible' in that two doctors, who never practised together, would both use the term 'muscular problems': Applicant's Closing Submissions at para 81.
The applicant notes that such comments were 'conspicuously absent' from the respondent's witness statement prepared for the penalty hearing (Exhibit B): Applicant's Closing Submissions at para 82. Doctor Durston's evidence was that he never said to anyone that he had patients suffering from 'muscular problems': Exhibit A at [23]. Furthermore, Dr Durston's evidence was that he never described himself to the respondent as a 'specialist endocrinologist': Exhibit A at paras 20, 21 and 29. The applicant submits that Dr Durston's evidence in this regard was 'unshaken' during cross-examination: ts 57, 20 September 2019.
To the extent the evidence of Dr Durston and the respondent conflicts in terms of telephone calls to discuss prescriptions and that Dr Durston had told the respondent that he was a 'specialist endocrinologist', the applicant says that Dr Durston is likely being truthful. This is because he has been frank with the Medical Board of Western Australia (Medical Board) in that he told the Medical Board he prescribed drugs for body building purposes, that his patients' clinical notes reflect his prescribing for anabolic steroids for body building purposes, and for a period of time in which the respondent says these calls were taking place, Dr Durston was under suspension and not practising: refer Exhibit C, Vol 2.
The applicant submits that the respondent's evidence that he made routine telephone calls to discuss prescriptions featured in only his most recent witness statement (Exhibit B) and not his earlier affidavits (Exhibits E and F).
The applicant submits that the Tribunal should reject the respondent's evidence that he was entitled to feel reassured by the conversations he says he had with Dr Durston and Dr Ismail. Even if that evidence were true, the applicant notes, it would still not then justify the dispensing actually undertaken by the respondent.
As stated, the Tribunal will address the conflicting evidence of Dr Durston and the respondent at [207]-[213] below.

[84]

The applicant submits that the respondent is incompetent. This submission is put on a number of bases. The applicant says it would have been obvious to any competent pharmacist who was receiving so many prescriptions for anabolic steroids from just two doctors (who were not specialists but general practitioners) at the Pharmacy, that the doctors were not prescribing the steroids for any proper therapeutic purpose. This is because the quantities and drug combinations prescribed were inconsistent with any proper dosing regimen for such drugs.
The applicant submits that the respondent was a 'singularly unimpressive witness - rambling, often nonsensical and evasive': Applicant's Closing Submissions at para 102. The applicant further submits that the respondent's incompetency is evinced by the respondent's apparent reliance on reassurances provided by others and that he was seemingly unaware of the risk of the diversion of the drugs: ts 109, 20 September 2019.
The respondent's ignorance of the risk of diversion of anabolic steroids evinces 'gross incompetency' especially given the volume of drugs he dispensed and the fact that he was pharmacist who compounded such drugs: Applicant's Closing Submissions at paras 103 and 105.
At the penalty hearing, the respondent's evidence of indications for anabolic androgenic steroids included 'muscular dystrophy' and 'muscle wasting' in the context of Acquired Immune Deficiency Syndrome. However, the respondent agreed that 75% of the patients to whom he dispensed these drugs did not have an appearance consistent with a chronic or life-threatening illness: ts 86, 20 September 2019. In the context of this submissions, the Tribunal notes the Facebook screenshots of some of the respondent's patients found in Vol 3 of Exhibit C.
The respondent also suggested that low testosterone might be a further indication. However, the respondent was aware at the penalty hearing that the treatment for low testosterone involved only a single agent rather than multiple anabolic androgenic steroids as were being dispensed by the Pharmacy in the vast majority of cases: Applicant's Closing Submissions at para 107.
Notwithstanding this, the respondent was not able to recall whether he questioned either Dr Durston or Dr Ismail about prescribing multiple anabolic steroids for single patients, but would not 'discount that it did not happen': ts 88-89, 20 September 2019.
The respondent's incompetency is also demonstrated, the applicant submits, in his reliance on 'assurances' given following audits by the Department of Health. The applicant notes that the appropriate avenue for the respondent to obtain information about the propriety of dispensing anabolic androgenic steroids would have, during the Relevant Period, been the Pharmaceutical Council of Western Australia.
Furthermore, during the Relevant Period, the respondent was a relatively experienced pharmacist having graduated from university in 1998 and purchasing the Beaumaris Pharmacy in 2000. The respondent's incompetency cannot be explained by youth or inexperience.
The applicant also refers to the respondent's CMIs (relating to Stanazolol, Oxymetholone (Oxandrolone) and Methandrostenolone) as being 'deficient as a resource for patients to inform them of the potential adverse effects of [these] drugs'. This is because the risks of:

[92]

The applicant also refers to the Tribunal's published orders in Medical Board of Australia and Bradshaw [2014] VR 68 (Bradshaw) in relation to the prescribing of Sustanon, Primoteston Depot and Clenbuterol to one patient in the absence of any clinical inclination. A 12 month suspension was imposed and a condition placed on his registration permanently preventing him from prescribing anabolic steroids or stimulants to any patient as well as requiring regular audits.
Dr Bradshaw breached the condition relating to prescribing certain drugs and he agreed, in further disciplinary proceedings, to a fine of $5,000 and suspension of his registration for 12 months.
The applicant also refers to the Tribunal's orders, made by consent, in Medical Board of Australia and Durston [2012] VR 188 where Dr Durston agreed that for a period of 10 years he engaged in a general practice of prescribing anabolic androgenic steroids and Clenbuterol in the absence of any proper therapeutic indication, including where he was aware that some patients were suffering from adverse effects from the drugs (such as elevated liver enzymes, hypercholesterolaemia and adverse coronary risk ratios).
Doctor Durston continued to prescribe the drugs in circumstances where he had been advised by the patient's treating cardiologist that the patient was suffering from left ventricular hypertrophy, secondary to his enlarged muscle mass, and a poor cholesterol profile.
By consent, Dr Durston was reprimanded, suspended for a period of 12 months, ordered to pay costs and conditions were imposed upon his resumption of medical practice.
The applicant points to several factors in relation to mitigation for Dr Durston. These included the fact that the Medical Board had written to him on 6 October 2004 and advised him that there would be no inquiry into his dispensing practices (after making enquiries of Dr Durston earlier that year). Following that letter, the Medical Board accepted that Dr Durston erroneously believed his dispensing of anabolic steroids did not amount to improper conduct for the purposes of the (now repealed) Medical Act 1984 (WA).
The applicant also refers to the Tribunal's orders in Medical Board of Australia and Ismail [2013] VR 212 (Ismail) where Dr Ismail agreed that he, over a period of nine years, prescribed anabolic androgenic steroids, Clenbuterol, Ephedrine and human growth hormone in the absence of any proper therapeutic indication (including providing multiple prescriptions for these drugs in single consultations).
Doctor Ismail also agreed that he continued to prescribe anabolic androgenic steroids to patients who he knew were suffering from the adverse effect from these drugs including patients with significantly elevated liver enzymes, elevated renal markers, hypercholesterolaemia and adverse coronary risk ratios, grossly abnormal testosterone levels, violent and aggressive behaviour (including domestic violence), gynaecomastia (including a patient who had undergone a mastectomy), acne and obstructive sleep apnoea secondary to an enlarged musculature (despite being advised from a specialist respiratory physician that the patient was suffering from that condition as a result of the taking of anabolic androgenic steroids).
Doctor Ismail also acted in breach of an undertaking he had given from prescribing anabolic androgenic steroids, gave an assurance that he would not act in further breach of that undertaking, and after giving that assurance, continued to act in breach of the undertaking until his registration was suspended on an interim basis.
Doctor Ismail prescribed 70,000 items during the relevant period.
Doctor Ismail consented to orders which included a reprimand, his registration being cancelled as well as a costs order. Because the proceedings were commenced under the (now repealed) Medical Practitioners Act 2008 (WA), no period of disqualification could be imposed before Dr Ismail could re-apply for re-registration.
The applicant also refers to the Tribunal's orders in Pharmacy Board of Australia and Balestra [2013] VR 196 (Balestra). On 24 November 2014, Mr Frank Balestra was de-registered from practicing as a pharmacist, with a disqualification period of 30 years, arising from his dispensing of anabolic androgenic steroids and other drugs that relate to body building.
Mr Balestra dispensed over 100,000 items over a period of eight years including anabolic androgenic steroids, Clenbuterol, HCL, Ephedrine, human growth hormone and clomiphene.
Mr Balestra was involved in the body building community and was aware that the prescriptions were being used by body builders and he held his pharmacy out as being able to service their needs.
The applicant also refers to the Singh Appeal decision where the Court of Appeal evaluated the conduct of Dr Singh in relation to his prescribing, over an extended period of time, of anabolic androgenic steroids, testosterone, Clenbuterol, Ephedrine and human growth hormone in the absence of any proper therapeutic indication as well as the prescribing of other drugs unrelated to body building. In addition, Dr Singh failed to make adequate clinical notes.
In Medical Board of Australia and Singh [2017] WASAT 33 (Singh) the Tribunal found that Dr Singh gave 'convoluted and purportedly scientific explanations' (which were 'bizarre' and 'not founded on any principle of science or evidence) in an attempt to justify his conduct': at [54].
In its findings of penalty, the Tribunal found that Dr Singh was dishonest in that 'his misconduct involved cloaking prescriptions with the veil of a proper therapeutic basis when in fact there was no proper therapeutic basis': Singh Penalty at [51].
Doctor Singh was unregistered at the time the Tribunal determined penalty. The Tribunal imposed a disqualification period of 10 years before an application could be made to re-register as well as a fine of $5,000 (in relation to a separate, but related, matter involving another medical practitioner).

[99]

The respondent filed an outline of opening submissions, made opening brief remarks at the penalty hearing and filed his closing submissions on 20 March 2020.
The respondent contends that, to the extent that the Tribunal is required to consider whether his evidence at the penalty hearing was untruthful, and to evaluate his evidence in the context of the evidence of Dr Durston, the reconstituted Tribunal should be slow to make findings of fact adverse to him. This is because the majority of the reconstituted Tribunal did not hear the evidence and did not have the benefit of directly observing the witnesses. Any credibility findings adverse to the respondent may be unfair and constitute a denial of procedural fairness.
In any event, on all material issues, the respondent submits his evidence should be preferred over that of Dr Durston.
The respondent has acknowledged the serious nature of the professional misconduct in which he engaged. Although he accepted he had engaged in 'professional misconduct' belatedly, he asserts that he has displayed insight into the seriousness of his misconduct and has taken steps to ensure that the conduct will not be repeated.
The respondent submits that 'what sets this case apart from other cases is that the misconduct and offending behaviour occurred more than 10 years ago and ended in April 2009': Respondent's Closing Submissions at para 12.
The undisputed evidence of the respondent is that he, of his own volition, took steps in 2010 to cease anabolic compounding and limit dispensing the quantity of anabolic steroids that were being prescribed: Exhibit B, paras 78-96.
The respondent adduced evidence of his dispensing of anabolic steroids from April 2015 to July 2019. The applicant's case is not premised on an argument that the respondent's dispensing practice since April 2009 is of concern or constitutes any kind of conduct that would attract disciplinary sanction.
Given the long period since the misconduct, the respondent submits that the 'Tribunal can have confidence that the respondent will not reoffend and is not a danger to the public': Respondent's Closing Submissions at para 15.
The respondent submits his misconduct 'was not actuated by turpitude' and that he has 'undergone a salutary and embarrassing experience in having to address complaints against him and in agreeing to a finding of misconduct': Respondent's Closing Submissions at para 16.
In the context where the misconduct occurred more than 10 years ago, has not been repeated and where the protection of the public is the 'primary consideration', the Tribunal 'should be compelled not to cancel or suspend the registration of the respondent': Respondent's Closing Submissions at para 18.

[106]

To the extent that the applicant alleges that the respondent is incompetent to practise as a pharmacist, the respondent submits that the Board's application to the Tribunal does not allege incompetency. In focusing on incompetency for the purposes of penalty, the applicant is attempting to conflate the Agreed Facts and Findings with a general finding of incompetence: Respondent's Closing Submissions at para 52.
The respondent further submits that while the Tribunal may 'always have regard to the general competency of a practitioner when it comes to the determination of penalty, it is not appropriate for the Tribunal to make an assessment of the respondent's alleged incompetence to practise and dispense generally on the basis of an alleged lack of insight into his wrongdoing': Respondent's Closing Submissions at para 52.
The respondent notes that the applicant has practised as a pharmacist since 2010 without any question in relation to his competency. His dispensing history from 2015 (which has been provided) has not raised any concern with the Board. Given the effluxion of time since the misconduct, it cannot now be contended that there is a question as to the respondent's competency.
The respondent submits that to the extent that the respondent may be perceived 'to not fully appreciate' the seriousness of his past misconduct, it is 'human nature' for one to 'move on and it should not count against the respondent that he now may appear in some respects not to be fully understanding of the seriousness of these offences': Respondent's Closing Submissions at para 55.
The applicant's submissions as to the respondent's alleged lack of understanding of the role of a pharmacist in 'protecting the community from inappropriate dispensing of [anabolic steroids]' should not be accepted in 'circumstances where the respondent his dispensed [anabolic steroids] for 10 years' without incident: Respondent's Closing Submissions at para 56.
The respondent's evidence of his dispensing history between 2015 and 2019 in unchallenged and the Tribunal can therefore find that he does not constitute a danger to the community in relation to the dispensing of anabolic steroids.

[111]

The Respondent's Closing Submissions also refers to a number of cases involving the dispensing of anabolic steroids.
In Pharmacy Board of Australia v Donnelly [2011] QCAT 584 (Donnelly) a pharmacist's registration was suspended for six months, (wholly suspended for 12 months), in circumstances where the pharmacist knew or ought to have known that the quantity and combinations of the drugs involved was not for a therapeutic purpose.
In Pharmacy Board of Australia v Booy [2011] QCAT 522 (Booy) a pharmacist's registration was suspended for three months, (wholly suspended for 12 months), in circumstances where the pharmacist dispensed three different types of anabolic steroids to a patient in quantities and combinations where were not for a therapeutic purpose.
In Pharmacy Board of Australia v Kent [2012] QCAT 329 (Kent) a pharmacist's registration was suspended for 12 months, suspended after three months if he was not subject to further disciplinary action, as well as a requirement to undertaken further training in circumstances where he dispensed anabolic steroids in quantities, combinations and frequencies that exceeded normal dispensing practices and where he did not keep adequate records.
In Pharmacy Board of Australia v Swan [2016] QCAT 475 (Swan) a pharmacist was reprimanded and conditions imposed on his registration requiring him to complete additional education courses in circumstances where he dispensed anabolic steroids in quantities and frequencies that exceeded normal dispensing practices.
In Pharmacy Board of Australia v Smith [2012] QCAT 186 (Smith) a pharmacist's registration was suspended for six months, (wholly suspended provided he was not the subject of further disciplinary action and further training and mentoring was imposed on his registration), in circumstances where he dispensed anabolic steroids in quantities, combinations and frequencies that exceeded normal dispensing practices.
In Pharmacy Board of Australia v Ang (Review and Regulation) [2019] VCAT 1402 (Ang) a pharmacist was reprimanded and his registration suspended for three months, as well as a requirement that he complete certain training programs, in circumstances where he supplied excessive quantities of anabolic steroids and where he admitted professional misconduct.
The respondent contrasts his conduct with HCCC v Ng [2012] NSWPHT 1 (HCCC) in support of his submission that his conduct does not involve previous prosecutions for multiple offences, nor has he demonstrated a high degree of recidivism, such that it is appropriate to cancel his registration for an extended period of time.
The effluxion of time since the misconduct is the distinguishing factor relied upon by the respondent as to why a period of suspension or cancellation is not required.

[115]

It is necessary for the Tribunal to address and make findings in relation to the conflicting evidence of Dr Durston and the respondent. Doctor Durston says that he never endorsed a prescription with 'reg 24' and that he and the respondent never spoke about the prescriptions that he wrote for patients.
The respondent, on the other hand, says that he did receive prescriptions endorsed with reg 24 from Dr Durston and that he and Dr Durston routinely spoke about prescriptions for anabolic steroids for patients. The respondent also says that Dr Durston held himself out as a 'specialist endocrinologist' which Dr Durston denies.
Both parties' submissions urged the Tribunal to accept the account of their respective witness. The Tribunal is mindful that it is not necessary for it to reach any definitive finding as to which of these witnesses is being truthful. It is sometimes dangerous for a disciplinary body to be drawn into a 'binary exercise' in determining which of two witnesses are telling the truth: Panegyres at [240] (Vaughan JA). This is because it seeking to first ascertain who is telling the truth, the disciplinary body may 'obscure [the] essence of its inquiry': Hewett v Medical Board of Western Australia [2004] WASCA 170 at [120].
The cross-examination of Dr Durston identified his history of manifest failings as a medical practitioner as well as his health condition. It also made clear that aspects of Dr Durton's affidavit were false (such as him never attending the Pharmacy with prescriptions that were not in his name).
However, we are mindful that these proceedings relate to the respondent's conduct, not that of Dr Durston. In considering Dr Durtson's evidence, the question for the Tribunal is not whether Dr Durston is a competent or reliable medical practitioner or even whether some of his own conduct has been disgraceful (which, plainly, it has). Rather, the principal issue for the Tribunal is whether Dr Durston gave truthful evidence. We find, after a careful reading of the evidence and the transcript of the penalty hearing, that he generally did.
In his oral evidence, Dr Durston was asked a series of difficult personal and professional questions for which he gave candid and honest answers: ts, 42-44, 46-47, 49-50, 20 September 2019. When asked a wide range of difficult and personal questions, Dr Durston did not shirk the truth. All his admissions, set out at [158] above, were made candidly. This was despite how uncomfortable some of the questions were, and how personally and professionally denigrating his answers must have been (especially given that he was admitting conduct contrary to his own affidavit evidence).
We find that Dr Durston's oral evidence was generally truthful.
By contrast, we find that the respondent was not a forthcoming nor candid witness. He was guarded and defensive. Given that his professional future was at stake, the Tribunal understands the reasons why that may have been the case. However, the respondent was not an impressive, nor was he a reliable, witness.
As urged by the respondent, we have approached the transcript evidence with some caution because the majority of the Tribunal panel did not hear the evidence directly and could not observe the demeanour of the witnesses.
However, even taking a cautious approach, we each consider that the respondent's evidence was guarded and defensive (as set out at [200] above) and took no real ownership of his professional misconduct and instead sought to shift the focus onto the prescribing doctors.
Rather than directly confronting his failings, the respondent's evidence, time and again, was that his dispensing practice relied on the conversations and assurances that he says were given to him by the prescribing doctors, to justify or to at least explain, his conduct.
This is evident from both his witness statement (Exhibit B, in particular paras 43, 44, 55-62, 70-71 and 85-88) and his oral evidence (ts 88, 9899, 101-102, 108, 20 September 2019). The respondent's evidence was also that he was assured that his dispensing practice was appropriate on account of a number of audits undertaken by the Department of Health.
While, at times, he accepted his dispensing practice had shortcomings and took some ownership of those (ts 77, 79-81, 20 September 2019), assessing his evidence in an overall sense, there is a striking failure to accept responsibility for his conduct. Moreover, when he did accept his own shortcomings, his answers often downplayed his own misconduct. For example, he gave answers like 'I was wrong in believing Dr Durston': ts 100, 20 September 2019.
We do not accept the respondent's submissions that his evidence in this regard was simply explaining the factual circumstances in which the misconduct took place. In our view, his evidence was an attempt to downplay his culpability for the dispensing that occurred and was often coupled with suggestions (or at least inferences) that the conduct was so long ago it is not now relevant: ts 70, 76, 96, 123, 20 September 2019. In fact, as was set out at [108] above, his answer to one question (as to the (disputed) contact between himself and Dr Durston) was: 'Well, this is my who cares, like like this is all like like, we're looking back from so many years ago': ts 96, 20 September 2019.
Turning now to evaluating the competing evidence between Dr Durston and the respondent, we find that neither witness gave evidence which we entirely accept.
We do not accept Dr Durston's evidence that he and the respondent never spoke (or only once) on the telephone. We find that there were probably instances when he and the respondent spoke. Doctor Durston, by his own admission, cannot be absolutely sure as to the level of contact between the two at certain points in time: ts 47, 20 September 2019. We therefore consider that it was possible, even likely, that there was some contact between the two during the Relevant Period.
However, while we do not accept Dr Durston's evidence, we also do not accept the respondent's evidence that he routinely consulted with Dr Durston about new patients or queries in relation to prescriptions: refer to [194] above. We find that any contact between the two was infrequent. That is, we consider, evinced by the respondent being unaware of the location of Dr Durtson's practice during the Relevant Period: ts 96, 20 September 2019. In our view, more frequent exchanges between the two - as suggested by the respondent - would have resulted in Dr Durston's practice details being far more familiar to the respondent. This is so having regard to the volume of anabolic steroids that the respondent was dispensing based on prescriptions written by Dr Durtson during the Relevant Period.
It is also the case that we do not accept the respondent's evidence in relation to the endorsement of prescriptions with reg 24 of the NH(PB) Regulations. Dr Durton's evidence was that he did not endorse the prescriptions he wrote for anabolic steroids with reg 24 because the PBS did not apply to such prescriptions. It is clear from Dr Durtson's clinical notes (Exhibit C, Vol 2) that he had no interest in cloaking or hiding the fact that he was prescribing anabolic steroids for body building purposes.
Doctor Durton's evidence that he did not endorse prescriptions with reg 24, because there was no need to, is consistent with his approach to writing prescriptions. We accept Dr Durton's evidence that he did not endorse what are private prescriptions with reg 24 because it was pointless to do so.
Doctor Durtson was a general practitioner. His qualifications and specialisations would have been readily apparent on any reasonable inquiry. We reiterate our comments above (at [210] above) that Dr Durton made his conduct plain that he was prescribing anabolic steroids to body-builders.
We see no reason why Dr Durston would hold himself out as a 'specialist endocrinologist' to the respondent. Doctor Durston made no effort to mask his conduct. We find that Dr Durston did not hold himself out as a 'specialist endocrinologist' to the respondent. We therefore do not accept the respondent's evidence that Dr Durtson was assuring him that he was a specialist: refer Exhibit F at para 29, set out at [89(b)] above.

[121]

This is the paramount consideration for the Tribunal. Having considered the evidence and the parties' respective submissions, we find that there is a need to protect the public for each of the reasons set out at [214(a)] above.
It is to the respondent's credit that he ceased the misconduct in 2010 and there is no evidence to suggest he has re-engaged in that practice. However, while he ceased dispensing anabolic steroids of his own volition that, of itself, is not a guarantee that there will not be further misconduct.
Notwithstanding the Agreed Facts and Findings, we consider that at no point has the respondent come forward and been forthright in terms of his misconduct. While he appears to have put the events of the Relevant Period in his past, it does not automatically follow that there is no prospect of any future misconduct.
In terms of risks to patients arising from the misconduct, we note that none of Ms Seubert's opinions (refer [76][77] above), which are relied on by the applicant in relation to the respondent's rate of dispensing and its exceedance of the recommended maximum levels, were challenged or contradicted by the respondent. We accept Ms Seubert's opinions in this regard. Ms Seubert's opinions make it plain to the Tribunal just how serious the respondent's misconduct was during the Relevant Period.
Given our concerns about the respondent's lack of any real insight, remorse or responsibility for his conduct (discussed at [203]-[206] above and at [227]-[228] and [238]-[241] below), we consider that there remains a need to protect the public from the respondent's dispensing practices in relation to anabolic steroids. However, we do acknowledge that there is no evidence of any inappropriate dispensing since 2010.
We also find there is a need to protect the public by imposing an appropriate penalty which will have the effect of deterring other practitioners from engaging is similar misconduct. In this regard the sanction we impose on the respondent needs to reflect the very serious nature of his misconduct.
Lastly, in the Tribunal's view it is important that the sanction imposed protects the public by reinforcing the high professional standards within the pharmaceutical profession and to denounce what are very significant transgressions. Pharmacists need to be cognisant of the high standards demanded of their profession. They are, indeed, the 'last line of defence' against the misuse of drugs such as anabolic steroids: Dolar at [13]. Having regard to the seriousness of the respondent's misconduct, we find it is necessary for the Tribunal to 'give an emphatic indication of its disapproval' of such conduct: Nyoni Penalty at [32].
We consider that this case demonstrates that there remains a need to send a clear message to pharmacists that engage in the dispensing of anabolic steroids, that conduct similar to the respondent's during the Relevant Period, will attract a significant sanction. While the dispensing in Balestra may be regarded as the high water mark for such conduct, the respondent's misconduct must still be regarded as very serious.

[128]

It is necessary to say something more about the respondent's reliance on the 'assurances' given to him others.
Firstly, the respondent had no reasonable basis to be assured by the prescribing doctors (including Dr Ismail who did not participate in the proceedings). This is because the volume of the dispensing was far beyond anything that might be regarded as being for a proper therapeutic purpose, particularly where combinations of anabolic steroids were being dispensed together.
Even if, contrary to our findings set out at [211] above, prescriptions were endorsed with reg 24, that does not explain the respondent's decision to continue to dispense in circumstances where it was obvious (or it should have been) that the patients had ready access to the Pharmacy. No assurance given by a prescribing doctor (including that the patient had 'lost' the drugs: ts 71-72, 20 September 2019) could overcome the fact that, in many instances, the necessary precondition for a reg 24 endorsement did not exist.
Furthermore, it is also the case that regardless of what the respondent says he was told by a prescribing doctor, as a pharmacist he was required to reach his own views as to whether it was safe and appropriate to dispense in each instance. Having regard to the Facebook screenshots found in Vol 3 of Exhibit C, there was no reasonable basis for the respondent to rely on any 'assurances' in relation to at least some patients for whom he was dispensing anabolic steroids (apparently) for conditions such as weight loss, muscular atrophy or other muscular problems.
Secondly, the respondent was, at times, receiving prescriptions for anabolic steroids written by multiple doctors (who did not practise together) for the same patient within a very short period of time. In such circumstances, any assurance provided by one doctor in relation to a prescription, was not reasonable. This is because the respondent was the only health practitioner who was aware of the true volume of the dispensing of anabolic steroids to some patients.
Thirdly, as a professional and experienced pharmacist, the respondent's asserted reliance on the audits undertaken by the Department of Health was not reasonable. This is because only two of the six audits were undertaken during the Relevant Period (the dates for the audits were in 2004, 2007, July 2008, March 2009, March 2011 and 2012): Exhibit F at paras 38, 48, 51, 63, 90 and 95.
Furthermore, the first audit that did occur during the Relevant Period was undertaken in July 2008. The misconduct only commenced in early 2008.
During the second audit during the Relevant Period in March 2009, the Department of Health raised concerns about the possible diversion of anabolic steroids dispensed by the Pharmacy: Exhibit B, para 66. The respondent's reply was that diversion 'was not a problem' at the Pharmacy: Exhibit B, para 66. While the respondent says the Department of Health 'did not follow up with him' in relation to his dispensing, the Tribunal has difficulty in the respondent's evidence that he was 'assured' by the fact that, during the Relevant Period, the Department of Health chose to audit the Pharmacy twice in what was only a nine month period.
Moreover, the more salient point is that the respondent ought to have known that if he had genuine queries as to his dispensing of anabolic androgenic steroids to patients during the Relevant Period, they should have been directed to the Pharmaceutical Council of Western Australia, not the Department of Health. We therefore do not accept the respondent's submission (at [169] above) that the Department of Health audits should be regarded as a mitigating factor in assessing the respondent's misconduct.
The respondent's evidence provides very little comfort to the Tribunal that he fully understands the gravity of his professional misconduct and the nature of his failings as a pharmacist. It certainly cannot be said that the Tribunal was impressed, reassured or encouraged by the 'veracity of his candour' in terms of assessing his remorse and insight in the sense outlined in Barwick at [108]. While we accept the respondent's submission that it is 'human nature [to] move on' (refer [166] above), we do not accept that it is appropriate for the respondent to be, what we can best describe as, 'almost disinterested' in his past misconduct.
While we address this in more detail below, when we consider the question of competency, in an overall sense, we find that the respondent still has not grasped how his dispensing practice during the Relevant Period failed his patients and put them at significantly elevated risk.
At all times during the Relevant Period the respondent had an independent duty to look after the welfare and health of his patients but, it would appear, he brushed that responsibility aside on account of the assurances that he stated he was being given. His failure to grasp that fundamental issue and to show any real insight into why his misconduct was so serious is a concern. It is also relevant that he has shown little remorse.
The best that can be said on behalf of the respondent is that he accepts that his conduct constitutes professional misconduct, but he has not demonstrated insight into why his misconduct was so serious and the risks that it posed to his patients (and the public generally given the risk of diversion of the drugs).

[133]

In Medical Board of Australia and Bernadt [2012] WASAT 108 the Tribunal considered Murray's J analysis from Ong suggests that incompetency can be found in relation to a single act: at [41].
We consider Murray J's analysis in Ong, set out at [250] above, to be instructive in terms of the question of how the question of competency should be approached in the context of these proceedings.
To the extent that the events during the Relevant Period shed light on the respondent's competency, we find that, at that time, he was plainly incompetent. His dispensing practice was wholly inadequate, was hazardous and showed a disregard of the safety of his patients and the professional obligations of a pharmacist to exercise independent judgment. His own evidence is that he ought to have known about these risks but he says he relied on the assurances given by other (generally non-pharmacists) about the safety of his dispensing practice: see for example Exhibit B, paras 44, 58, 59 and 114.
On the question of competency, the respondent relies on what has happened since April 2009, and the lack of any further concerns raised by the Board, in support of his submission that he now a competent pharmacist. The respondent submits that there is no evidence that 'his dispensing over the past 10 years has been anything other than exemplary and according to the highest professional standards': Respondent's Closing Submissions at para 54.
We accept that there is no evidence of any further misconduct since April 2009. As we found at [242]-[245] above, that fact certainly goes in the applicant's favour and, we agree, supports a submission that the respondent's competency should not now be in issue.
However, it is also the case that a lack of complaint or concerns in recent years does not, of itself, demonstrate competency. This is because the respondent's evidence is that he has not personally dispensed any anabolic steroids since 2010 (ts 126, 20 September 2019). Simply refusing to dispense anabolic steroids is not evidence, nor does it demonstrate, that the respondent is a currently a competent pharmacist. While we consider the respondent's decision to cease his misconduct is a factor that is relevant to assessing penalty, it is not, of itself, evidence that the respondent is a competent pharmacist.
While the Agreed Facts and Findings are that the respondent 'ought to have known' about the risks associated with his misconduct, it is relevant that his dispensing of anabolic steroids during the Relevant Period was very frequent and very intense. The respondent's level of knowledge of these risks, in the light of the intensity of his dispensing, requires that consideration be given to the respondent's competency.
As was stated at [43] above, the sanction is assessed at the time of its imposition: Segler at [7]; A Legal Practitioner (S) at [23]. As a result, the question of the respondent's competency is to be evaluated at the time the sanction is imposed.
For the reasons that follow, we are not satisfied that the respondent is a competent pharmacist. While a range of competency issues were raised by the Applicant, we find it necessary to only examine three aspects in detail.
In our view, the broad theme that emerges from the respondent's evidence in relation to his dispensing practice is that he fails to put the patient at the centre of his decision-making as a pharmacist. That was plainly so during the Relevant Period and, in our view, it remains as an issue for the respondent.

[141]

The respondent's answer to this question demonstrates a failure to understand that he has a professional responsibility, and a duty to exercise independent judgment, about each and every prescription that is presented to him as to whether it is appropriate and safe for the patient.
His answer to the question evinces no real awareness of those professional responsibilities. His only reference point seems to be to avoid attracting trouble for dispensing an anabolic steroid.
In the scenario put to him by his counsel with this question, we find that a competent pharmacist would make the patient the central concern by inquiring what the medication was for, what other medications were they taking, how long they had been told they need the medication for and how would the medication be taken - would the medication be injected by the doctor or would they inject it themselves?
The respondent should have so many more questions than just whether the prescription was valid.
The question of competency goes to the paramount consideration: the need to protect the public: Health Care Complaints Commission v Do [2014] NSWCA 407 at [35] (Meagher J); cited with approval by Allanson J in the Singh Appeal at [95]. In circumstances where his competency was very much in issue, the respondent was given every opportunity to demonstrate his competency in terms of his current dispensing practices. The Tribunal considers that he did not demonstrate competency.
We consider that some allowance must be made for the fact that the respondent was under stress in that he was giving evidence. However, these were not difficult questions: they were open questions that invited broad answers which were put to him by his own counsel in reexamination. He was presented with an invitation to satisfy the Tribunal that we need not be concerned about his competency.
Our concern is not just that his answers were less than complete or that they were not 'model' or 'perfect' answers. Given the context in which the questions were asked, as we have explained, some latitude should be shown to the respondent.
However, even taking that approach, his answers fall well short of what we would regard as being the answers of a reasonably competent pharmacist. The respondent's dispensing practice raises fundamental issues. The welfare, safety and needs of patients appears to have given way to accommodate the respondent's desire to now avoid any trouble by dispensing anabolic steroids.
Furthermore, the respondent still does not seem to grasp that his duty is to exercise independent judgment in relation to dispensing. While conversations with prescribing doctors help inform that decision the decision to dispense drugs to a patient is the pharmacist's alone.
In our view, the respondent has not learnt the underlying lessons from his dispensing during the Relevant Period. It is no answer to simply defer to assurances or opinions given by others. We find that the respondent is yet to develop that level if insight into the responsibilities that come with the privilege of dispensing drugs to patients. It follows that we find that he is not currently a competent pharmacist in terms of his dispensing.

[152]

The respondent was born in 1975 and has held registration since February 2000. During the Relevant Period he was approximately 35 years old and had been a pharmacist for almost 10 years. He was also the sole proprietor of the Pharmacy at all relevant times.
The respondent refers to no events in his personal life as a basis which may explain his dispensing during the Relevant Period.
Turning to the present, the respondent says that if he de-registered he would be required to sell both of his pharmacies and purchase them back after he is re-registered. He outlines that if he is de-registered it will impact the communities which his pharmacies serve.
The respondent is also a member of the Rotary Club and provides sponsorship to the local community.
The respondent says that he has gained a considerable amount of knowledge and insight into what he says are the 'pit-falls of dispensing': Exhibit B, para 113. He recognises that the 'steps [he] took at the time to satisfy [himself] that the anabolic steroids [were] for a therapeutic purpose were insufficient and fell short of the standard that is required': Exhibit B, para 114. He says he fell into a 'comfort zone' and the assurances provided by the Department of Health audits: Exhibit B, para 115. The respondent is confident that his misconduct will not be repeated: Exhibit B, para 117.
We find that the respondent's conduct cannot be explained or justified on the basis of youth or inexperience. Nor could it be said that he was only the junior partner of a wider enterprise. He was, at all material times, a professional in his mid-30s with a decade of professional experience and he was the owner of the Pharmacy. He was, and is, entirely responsible for his misconduct.
Taking account of the present, he owns two pharmacies and points to the standing he has in the local community as a Rotarian.
We accept that if the Tribunal decides to suspend or cancel his registration this will have a significant impact on him personally. However we have no probative evidence to suggest that the local communities will be adversely affected if he is required to sell the pharmacies - other than perhaps some loss of local sponsorship.

[166]

The respondent's submissions outlined that an appropriate penalty would involve a reprimand, a fine, conditions be imposed on his registration and that he pay the applicant's costs. The respondent submits that maintaining conditional registration would achieve the objective of protecting the public. The respondent further submits that if he is to lose the privilege of registration, a short period of suspension is appropriate as against cancellation.
For reasons which we will now explain, we cannot accept the respondent's submissions as to an appropriate penalty. Even taking account of the long effluxion of time since the misconduct, his recent good disciplinary history and that he had the level of insight to accept the Agreed Facts and Findings, the gravity of the misconduct is very serious. The respondent's misconduct was intensive, was not isolated but extended over 16 months and involved fundamental failings of his duty as a pharmacist which elevated the risks of significant adverse consequences for his patients. His dispensing also breached the Code of Conduct and the Code of Ethics.
To understand the gravity of the respondent's misconduct we reiterate (as set out at [76]-[77] above) that, at times, he was dispensing anabolic steroids to patients at a dosage rate of up to 14.8 times the recommended maximum rate for any therapeutic purpose. His dispensing involved 4700 episodes and involved over 800 patients.
We find that, in order to protect the public and to ensure that appropriate standards are maintained in the pharmaceutical profession, as well as to adequately denounce the respondent's misconduct, any penalty must include a period where the respondent loses the privilege of practising as a pharmacist.
Had the respondent been aware that his conduct was so hazardous and continued on regardless, a far more severe penalty would ordinarily follow. This is because to knowingly dispense anabolic steroids with such wanton disregard significantly aggravates such conduct.
We reiterate what we stated at [257] above. The respondent's level of knowledge of the risks associated with his dispensing of anabolic steroids, in the light of the intensity of that dispensing during the Relevant Period, requires that we consider his competency.
By reason of the Agreed Facts and Findings, the respondent's competency was a central issue at the penalty hearing and in the parties' respective submissions on penalty.
For the reasons we have explained at [246]-[296] above, we are not satisfied that the respondent is a competent pharmacist. It is not only that his answers to questions were deficient (along with his CMIs). His answers also evince fundamental issues in his practice of pharmacy. The respondent fails to both:

[169]

Based on our findings at [200][207], [215][222], [223][225], [226][241], [246][295], [302], [305][308] and also for the reasons at [317]-[319] above, we must turn to the question of whether it is appropriate to suspend or cancel the respondent's registration. In this regard we refer to the helpful analysis of the Court of Appeal in Khosa at [190]-[195] (albeit in the context of regulation of legal practice).
In Khosa, the Court of Appeal evaluated the circumstances where it is appropriate to suspend or strike-off the practitioner: at [191][192] (reproduced at [50] above). The principal difference between the effect of suspension and, relevantly, cancellation, of a practitioner's registration is that a suspension is premised on the Tribunal imposing the sanction being generally satisfied that at the end of the period of suspension, the practitioner will be fit and proper to resume professional practice.
At [192] of Khosa the Court of Appeal explains that where the present unfitness to practice arises from circumstances where the practitioner is permanently or indefinitely unfit to practise, the ordinary response will be for the practitioner's registration, in the context of the National Law under which we are making our decision, to be cancelled rather the suspended: see also New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26]- [28] (Cummins).
The respondent's misconduct was very serious, was not isolated and was intensive. Based on our findings (referenced in detail at [324] above), we find the respondent's misconduct was sufficiently serious so as to attract the sanction of cancellation.
As we explained at [242]-[245] and [255] above, the effluxion of time since the misconduct and the respondent's recent disciplinary history plainly go in his favour and must be given some weight. However, given our findings on the misconduct (including on the question of the respondent's competency), these mitigating factors do not persuade us that there is now no need to cancel his registration. This is not to punish the respondent but is required to protect the public: Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-202 (Dixon CJ, McTiernan J, Fullagar J, Menzies J and Windeyer J).
Our concerns with the respondent's competency are not peripheral issues. To the contrary, they go to very core of the practice of pharmacy and the dispensing of drugs for patients. A pharmacist must have a clear understanding of their professional obligations to exercise independent judgment and to make the needs of the patient the central consideration.
Furthermore, because our concerns go to the core aspects of pharmaceutical practice, we are not satisfied that at the end of a period of suspension the respondent would be a fit and proper person to resume practice. Our concerns do not relate to some 'defect' which has, or could readily be, overcome in the sense explained in Chen v Health Care Complaints Commissions [2017] NSWCA 186; (2017) 95 NSWLR 334 at [20] (Basten JA, Leeming JA and Payne JA) (Chen).
It is also the case that the effluxion of time since the misconduct, of itself, does not demonstrate a change in character: Hilton at [104]. As we explained at [238] above, we are not reassured by the 'veracity of his candour' in the sense outlined in Barwick at [108]. However, even taking account of the effluxion of time, his recent good disciplinary history and the mitigation encompassed by the Agreed Facts and Findings, the respondent's misconduct was grossly unacceptable. As we set out at [328] above, and adopting the language of Chen (at [20]), the misconduct is 'sufficiently serious' to engage the sanction of cancellation.
Coupled with these concerns is the fact that the respondent has shown no real contrition or remorse for his misconduct. While he says in his evidence that he has gained a 'considerable amount of knowledge' and insight into the risks of dispensing (Exhibit B, para 113), at no point has really he apologised for his misconduct nor, as we have explained, taken any real responsibility for it.
As we set out at [238] above, the respondent presents as being 'almost disinterested' in his past misconduct. While we accept the majority of the Tribunal did not observe the respondent at the penalty hearing, the transcript of the hearing is instructive as well as his written evidence (Exhibits B, E and F). As we explained at [108] (and [206]), his answer to a question was 'who cares' on the basis that the conduct was now so long ago: ts 96, 20 September 2019. His evidence was also littered with comments that he was acting on the assurances given by others (who were not pharmacists) that his dispensing practices met appropriate pharmaceutical standards.
In our view, for the reasons we have explained, the respondent's conduct during the Relevant Period, and his evidence before the Tribunal, leave us far from satisfied that the respondent grasps these fundamental aspects of the practice of pharmacy. It follows that we find that the respondent is permanently or indefinitely unfit for the practice of pharmacy in the sense set out in Khosa at [192]; Cummins at [26]-[28].
In those circumstances, we find that the appropriate order is to cancel the respondent's registration as a pharmacist. As we explained at [328] above, an order cancelling the respondent's registration is justified given the paramount consideration is the protection of the public. We find that there is a current need to protect the public from the respondent.
The order which maximises the protection of the public in the sense set out in Quinn (at [31]) is cancellation, as it will require the respondent to demonstrate he is competent to re-commence practice as a pharmacist. A suspension order does not have the same effect.
It is also the case that none of the case authorities referred to by the respondent in his submissions, set out at [180]-[187] above, provide any real comparative value in terms of sanction.
The decisions of the Queensland Civil and Administrative Tribunal in Donnelly, Booy, Kent, Swan and Smith are all distinguishable as they involve relatively junior pharmacists or conduct that is well below that the seriousness of the respondent's conduct.
For example, Donnelly and Booy involved 'young' or 'professionally immature' pharmacists (who did not personally profit from the misconduct) and the conduct in Kent, Swan and Smith was nowhere near the same scale as the respondent's. Likewise, the decision of the Victorian Civil and Administrative Tribunal in Ang is distinguishable as the misconduct only involved one patient. We have already discussed HCCC at [240] above.
As we have now stressed a number of times (at [242]-[245], [255] and [329] above), a number of factors go in the applicant's favour including, in particular, the length of time since the misconduct. Had the respondent been a forthright witness who had taken responsibility for his misconduct and demonstrated how he had grown as a result, and were there no residual concerns as to his competency, we may have been more attracted to an order for a relatively short period of disqualification or suspension. However, given our overall findings in this matter (referenced in detail at [325]), such an order cannot be regarded as appropriate.

[170]

We now turn to consider the question of whether we should impose a period of disqualification during which the respondent is not permitted to apply to re-register as a pharmacist and, if so, for what period.
In terms of assessing the overall the conduct as against other decided cases in terms of a cancellation period, the respondent's misconduct is not at the most serious end. It is not at the level of Balestra. Over a period of eight years, Mr Balestra dispensed (on average) over 1000 prescriptions of anabolic steroids per month. The intensity of the respondent's dispensing of anabolic steroids (set out at [30], [71]-[74], [224] and [317] above), while very serious, cannot be fairly compared to that in Balestra. Indeed, in fairness to the Board, it did not seek to make that comparison.
In making a decision as to whether to impose a period of disqualification (and if so for how long), we do not consider the respondent's case to be easily comparable to any other decided case. His misconduct is not as serious as the prescribing in Ismail or Singh but is more serious than the prescribing in Tarvydas and Bradshaw. Durston is hard to evaluate for comparison because of the mitigating factors. It is also the case that these decisions all deal with the prescribing, and not the dispensing, of anabolic steroids.
We have already explained at [328] above, that we find little comparative value in the case authorities referred to by the respondent. In our view, the most comparable case is that is found in the Nyoni Penalty decision where the Tribunal cancelled Mr Nyoni's registration as a pharmacist and imposed a disqualification period of two years.
There are, however, differences between the two cases. Most importantly, Nyoni involved the dispensing of Sch 8 drugs, not anabolic steroids (which are Sch 4 drugs).[2] Schedule 8 drugs are controlled drugs (which have a high potential to result in addiction). The length of time since the misconduct is a further point of difference.
The Tribunal found Mr Nyoni's conduct was intentional in that he possessed, supplied and sold Sch 8 drugs on 131 occasions between 24 May 2013 and 17 April 2014 and on a further 38 occasions between 26 November 2013 and 17 April 2014 despite his authority to do (under the Poisons Act 1964 (WA) (now repealed)) being revoked.
The Tribunal found Mr Nyoni intentionally acted in breach of the governing legislation, demonstrated no insight or acknowledgment of his misconduct and sought to excuse his behaviour.
While the respondent's conduct was not intentional (in the sense that he did not act in flagrant breach of restrictions on his registration) and relate only to Sch 4 drugs (anabolic steroids), the intensity, frequency, volume duration and the number of patients involved in his dispensing practice, far exceeds the dispensing of Sch 8 drugs by Mr Nyoni. By reason of its duration, scale and intensity, we consider the respondent's misconduct to be more serious than that in Nyoni.
Having regard to all of the circumstances, we find that it is appropriate that we impose a period of disqualification on the respondent.
The applicant submits a cancellation period of five years is appropriate. Had the respondent's misconduct been relatively recent, we consider that five years (or even longer) would be an appropriate period for cancellation.
Notwithstanding the applicant's submissions, we find that, having regard to the length of time since the misconduct, a disqualification period of five years is excessive. As we have previously explained (at [240]-[243], [247], [329] and [341] above), the length of time since the misconduct and the respondent's recent disciplinary history are mitigating factors. It is also the case that the respondent should get some credit for the insight he shown as evinced in the Agreed Facts and Findings. Furthermore, the respondent made his own decision to cease (and not recommence) the misconduct. All these considerations go in his favour.
Notwithstanding those observations, there is a need to send a strong message of deterrence to the respondent and to the pharmacy profession generally, as an aspect of protecting the public, which demands that the period of cancellation not be insignificant. It is also the case that the respondent's dispensing breached the relevant Code of Conduct and Code of Ethics.
In addition to our findings and reasons set out at [325] (referred to again at [328] above), we repeat our comments at [312] above that, during the Relevant Period, the respondent was a pharmacist with almost 10 years' experience and was the owner of the Pharmacy. His misconduct is not the result of youth or inexperience. He undertook specific compounding training to enable him to dispense anabolic steroids. He has also shown little remorse or responsibility for that misconduct. As we have explained, we also consider that he is not competent which raises fundamental concerns.
Ultimately, we find that imposing a period of disqualification is an evaluative judgment in all of the circumstances. Weighing and balancing all of these factors, we find that the appropriate period for disqualification is three years.
We accept that this penalty will have significant personal, financial and professional impacts on the respondent. However, we consider that an order cancelling the respondent's registration with a three year disqualification period:

PHARMACY BOARD OF AUSTRALIA and HEGDE [2020] WASAT 89 (7 August 2020)

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PHARMACY BOARD OF AUSTRALIA and HEGDE [2020] WASAT 89 (7 August 2020)