Pharmacy Board of Australia v Clark [2025] TASCAT 68

professional misconduct, of a registered health practitioner, includes - > > (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and > > (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and > > (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

1. The parties filed a statement of agreed facts as well as several statements of evidence, including two made by the respondent, and a psychiatric report prepared by Dr Pradeep Singhal in respect of the respondent. It is necessary to address Dr Singhal's report separately in light of the applicant's submission that it should be afforded little weight.
2. I make the following findings based primarily on the statement of agreed facts but also based on the uncontradicted evidence in the various statements of evidence.

1. The respondent is from Queensland and was first granted provisional registration as a pharmacist on 10 January 2018. She was employed by Chemist Warehouse as a pharmacist in Tasmania. She worked across various Chemist Warehouse pharmacies in several different pharmacy roles, some of which included management duties.
2. The respondent was required to comply with the applicant's Code of Conduct 2014 (the Code) which is, by s 41 of the National Law, evidence of what constitutes appropriate professional conduct and practice. The relevant parts of the Code are summarised later in these reasons.
3. The respondent found her job stressful, compounded by the effects of the COVID-19 pandemic and being isolated from much of her family, who were in Queensland. Her mental health suffered, she became socially withdrawn, and her relationship with her long-term partner broke down. Her offending must be seen against that context.

1. There are five grounds to the application. I have summarised them rather than repeating the lengthy statement of agreed facts.

1. Between 5 and 24 May 2021, the respondent misappropriated medications and stock from the pharmacy at which she worked. These included Schedule 4 and expired Schedule 8 medications. She failed to dispose of the medications as she was legally required to, instead storing them at her house and in her car. The medications were:
   1. 30 Ritalin 60mg tablets;
   2. 20 Fentanyl patches of various sizes;
   3. Diazepam elixir dispensed to an unrelated patient of the pharmacy;
   4. One strip each of Mersyndol Forte and Comforal forte;
   5. One box of Duromine;
   6. Three blank prescriptions; and
   7. Two prescriptions made out to specific and unrelated patients of the pharmacy.
2. The stock comprised an electric toothbrush, two breast pumps, several creams, some probiotics, Chemist Warehouse security tags, and various sundry products.
3. Using the figures from the compensation order made by a magistrate, the value of the misappropriated medications and stock was $2,355.

1. Between 7 and 13 May 2021, the respondent misappropriated money from two colleagues' wallets which were stored in their lockers (totalling $70) and from the pharmacy safe ($50).

1. On 17 May 2021, the respondent dispensed medication to herself without a prescription.

1. Chemist Warehouse became aware and made a report to police on 19 May 2021 and a notification to the Australian Health Practitioner Regulation Agency (AHPRA) on 20 May 2021. On 19 May 2021, the respondent was summarily dismissed by her employer. On 24 May 2021, police executed a search warrant at the respondent's house. The respondent was home at the time. She obstructed police by placing medications that she had taken from the pharmacy (Ritalin and Fentanyl patches) under her arm pit in an attempt to hide them. That obstruction gave rise to Ground 4.

1. On 27 September 2021, the respondent pleaded guilty in the Magistrates Court at Hobart to the following offences:
   1. 22 charges of possessing a controlled drug, contrary to the Misuse of Drugs Act 2001, s 24(a);
   2. 12 charges of stealing, contrary to the Criminal Code, s 234;
   3. obstructing the search of warrant premises, contrary to the Search Warrants Act 1977, s 21(2)
   4. using a controlled drug, contrary to the Misuse of Drugs Act, s 24(b)
   5. 2 counts of unlawfully possessing a blank prescription form, contrary to the Misuse of Drugs Act 2001, s 28(5); and
   6. unlawfully possessing property, contrary to the Police Offences Act 1935, s 39(1).
2. The offences related to the conduct outlined above and gave rise to Ground 5. The respondent was convicted and sentenced to six months imprisonment wholly suspended on condition that for a period of two years she commit no offence punishable by imprisonment.

1. The respondent ceased to hold registration as a pharmacist on 8 June 2021 when she voluntarily surrendered her registration. She has not practised as a pharmacist since then. She has since moved back to Queensland to live nearer to her family and to engage better with her treating health practitioners.
2. The respondent's father is a general practitioner (GP) in Queensland. He runs a small GP practice at which the respondent's mother also works. The respondent is working there part-time as a medical receptionist. She never works alone. Her duties include answering the phone, making appointments, sterilising equipment, managing documents, providing patients with scripts written by her father, and other general reception work. Medication at the practice is locked in a cupboard or fridge, neither of which the respondent has access to. Medication deliveries are scheduled on a day when the respondent is not working.
3. The respondent is being treated for her mental health issues. Dr Singhal's report is relevant to that treatment, the respondent's prognosis, and whether the respondent poses a risk to the community. The parties are not agreed as to these matters.
4. Dr Singhal considers the respondent's risk of re-offending to be extremely small. The respondent submits that she no longer poses a risk to the community in light of the steps that she has taken to achieve stability and rehabilitation.
5. The applicant disputes that assessment of the respondent's level of risk, contending that little weight should be given to Dr Singhal's report and his conclusions because the source material was not available and because his opinions were based on the respondent continuing to engage in treatment.
6. Ultimately, it is unnecessary to precisely determine the weight to be given to Dr Singhal's report and respondent's risk of re-offending. As I will endeavour to explain, I am satisfied that the agreed sanctions are appropriate irrespective of the precise assessment of the risk of re-offending. I find the respondent to have a low but not negligible risk of reoffending, such risk arising primarily from the possibility of her not continuing to engage in treatment.

1. It is convenient to set out paragraphs [21] to [23] of the statement of agreed facts signed by each party.

21.1. she engaged in the conduct alleged in Grounds 1 - 5 above (admitted conduct); and > > 21.2. the admitted conduct was in breach of the Code in particular:- > > 21.2.1. clause 1.2 in that she failed in her duty to make the care of patients or clients her first concern and to practise safely and effectively and be ethical and trustworthy. In addition, she failed to display qualities such as integrity, truthfulness and dependability; > > 21.2.2. clause 4.2 in that she failed to behave professionally and courteously to colleagues at all times; > > 21.2.3. clause 8.1 in that she failed to display a standard of behaviour that warrants the trust and respect of the community including observing and practising the principles of ethical conduct; and > > 21.2.4. clause 9.2 in that she failed to be aware of the risks of self-diagnosis and self-treatment; and > > 21.3. the admitted conduct brings the pharmacy profession into disrepute and/or is detrimental to the reputation of the pharmacy profession and the confidence of the public in the profession; and > > 21.4. the admitted conduct was conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. > > PART Ill CHARACTERISATION

3. The Applicant and Respondent agree that that the admitted conduct constitutes professional misconduct as defined in s 5(a,) (b) and (c) of the National Law.

PART IV SANCTIONS

4. The Applicant and Respondent submit to the Tribunal that it would be appropriate to make the following orders in the circumstances of this matter:
   1. the Respondent has behaved in a way that constitutes professional misconduct as defined in section 5(a) and (b) and (c) of the National Law
   2. the Respondent is reprimanded pursuant to section 196(2)(a) of the National Law;
   3. the Respondent is disqualified from applying for registration as a registered health practitioner pursuant to s 196(4)(a) of the National Law for a period of 2 years from the date of these orders; and
   4. the Respondent is prohibited from providing any health service pursuant to s 196(4)(b)(i) of the National Law for a period of 2 years from the date of these orders.
   5. For the purposes of the prohibition order a health service includes any role, whether remunerated or not, in which the individual uses her skills and knowledge as a pharmacist.
   6. The parties bear their own costs.

1. Notwithstanding the parties' agreement, the applicant bears the onus of proving its case on the balance of probabilities. I must be "comfortably satisfied" of the facts in issue, consistent with the seriousness of the allegations: Dental Board of Australia v Trijo [2020] VCAT 557 at [35].
2. While I must make my own findings as to the respondent's conduct and its seriousness and form my own view as to the sanctions to be imposed in respect of it, the parties' agreement is highly relevant: Medical Board v McGrath [2014] VCAT 641 at [19]- [20]. I should not depart from their agreement without a clear or exceptional reason: Medical Board of Australia v Fox [2016] VCAT 408 at [6].
3. Medical Board of Australia v Singh [2017] WASAT 33 (S) helpfully sets out at [30] a non-exhaustive list of factors relevant to determining the appropriate sanction. It is unnecessary to recite the list here. I will consider the relevant matters as part of my consideration below. As a starting point, it is well-established that public safety by the maintenance of proper professional standards is the primary consideration. The impact on the respondent is a secondary or subordinate factor.

1. I accept the parties' agreed position that the respondent's conduct constitutes professional misconduct as defined in s 5 of the National Law. Her conduct fell substantially below the standard reasonably expected of an early-career pharmacist. It was repeated, arose directly from her practice as a pharmacist, and is inconsistent with the respondent being a fit and proper person to hold registration as a pharmacist.
2. I accept the applicant's submission that the theft of money, medications, and stock from the respondent's workplace represented a significant breach of trust both as an employee and as a pharmacist. The respondent breached the trust of her employer, patients, regulators, and community. It is relevant that Schedule 8 medications are the most highly regulated category. Her conduct posed a risk, fortunately not realised, to public safety through the uncontrolled availability of such medications.
3. In mitigation, the respondent put that she was a young, early-career health practitioner, isolated from her family, dealing with difficult situations at work (including management responsibilities) and the effects of the COVID-19 pandemic, while suffering from some physical ailments. There are no previous disciplinary matters. She cooperated with the applicant during this proceeding and, albeit to a lesser extent, with AHPRA before the proceeding. I accept those matters. However, they are of relatively little weight when balanced against "the protection of the public by the maintenance of proper standards within the profession": Medical Board of Australia v Singh at [28].
4. On balance, I am satisfied that the respondent poses a low risk to the community for the reasons which I have endeavoured to explain. While there is less need for specific deterrence in light of the respondent's contrition and steps towards rehabilitation, general deterrence is a significant factor.

1. I am satisfied that the agreed sanctions are appropriate. I will return to the issue relating to the carve out of the suspension. In all, this is a particularly serious case. It would be appropriate to cancel the respondent's registration had she not already voluntarily surrendered it.
2. Section 196(2)(a) allows the Tribunal to caution or reprimand a practitioner. A reprimand is appropriate to provide condemnation and general deterrence.
3. Section 196(4)(a) allows the Tribunal to disqualify a practitioner for a particular period. I accept the parties' agreed position that the respondent should be disqualified from applying for registration as a registered health practitioner for two years. I also accept the respondent's submission that produces the practical effect of approximately six years in which the respondent will have been away from her profession.
4. Section 196(4)(b)(i) allows the Tribunal to prohibit a practitioner from providing any, or a specified, health service. I accept the parties' agreed position that it is appropriate to prohibit the respondent from providing any health service for two years. This mirrors the period of disqualification.

1. There is one area of dispute. The parties agree that there should be a carve out from, or exception to, the prohibition order under s 196(4)(b)(ii) but have not agreed its terms.
2. The respondent seeks an order that she not be "restricted from undertaking work as a medical receptionist in general practice provided that the role does not involve her handling, controlling or possessing medication". In support of that carve out, the respondent submits that this would provide her with the certainty she requires to continue to work for her father's GP practice while maintaining public safety and confidence in the health profession and health practitioners' standards of conduct.
3. The applicant opposes that order, submitting instead that the Tribunal should order that the respondent not be "restricted from undertaking work as a medical receptionist in general practice provided that she has no access to medications in that role". The applicant contends that its order is more appropriate because it is more protective and better upholds the National Law's objectives. It more comprehensively bars the respondent from having access to medications and reduces the risk of any relapse or re-offending. The applicant also contends that its order better serves general deterrence.
4. In answer to the respondent's submission that her proposed order better allows her reintegration into the workforce, the applicant reiterates that the impact of the sanctions on the respondent is subordinate to public safety by the maintenance of proper professional standards. The applicant also contends that the respondent's wording is unnecessary.
5. The respondent says it seeks not a broader order than the applicant's, but one that is "sufficiently certain in circumstances where the word 'access' is ambiguous".
6. I prefer the respondent's submissions. I consider the word "access" to be overly broad and ambiguous. There is merit in the respondent's submission that a patient placing medication on the reception desk in front of the respondent may be considered, or at least leave room for argument that it is, access. I am satisfied that it is appropriate to make the carve out order sought by the respondent.

1. The final matter is costs. The parties have agreed that they should bear their own costs.

1. I have found, and formally note, that the respondent has behaved in a way that constitutes professional misconduct as defined in s 5(a), (b), and (c) of the National Law.
2. I make the following orders:
   1. The respondent is reprimanded pursuant to s 196(2)(a) of the National Law.
   2. The respondent is disqualified from applying for registration as a registered health practitioner pursuant to s 196(4)(a) of the National Law for a period of 2 years.
   3. The respondent is prohibited from providing any health service pursuant to s 196(4)(b)(i) of the National Law for a period of 2 years. For the purposes of this order:
      1. a health service includes any role, whether remunerated or not, in which the respondent uses her skills and knowledge as a pharmacist; and
      2. the respondent is not restricted from undertaking work as a medical receptionist in general practice provided that the role does not involve her handling, controlling, or possessing medication.
   4. The parties bear their own costs.