1. The stay of this proceeding, ordered on 19 March 2020, is lifted.
2. Mr Elias' registration is subject to a condition under s 196(2)(b) of the National Law, that on an annual basis, at the time of renewal of registration, he is to produce the following evidence:
   1. If covered by private insurance, documentary evidence of such cover, from his insurer, or
   2. If covered by a third party insurance arrangement, documentation from the third party, such as a certified copy of a certificate of currency or a letter from the third party.

1. The review period for the above condition is five years from the date of this decision.

1. Mr Mina Elias has been a registered pharmacist since 31 December 2010. He works as an employee pharmacist, rather than as a proprietor of his own business. For four months during 2016, from 1 May to 31 August, he did not hold professional indemnity insurance (PII). During most of this time, he worked as an employee at chemists in Wagga Wagga (NSW) and in Croydon (Victoria). (For the remainder of that time, he was not working.) This was a breach of his obligations under s 129(1) of the Health Practitioner National Law (National Law)[1], applicable Standards concerning PII arrangements for pharmacists[2], and the Code of Conduct for Pharmacists, March 2014 (page 19).
2. Section 129(1) provides that a registered health practitioner must not practise unless appropriate PII arrangements are in force in relation to the practice of their profession.
3. As a result, this disciplinary proceeding has been brought against Mr Elias. He accepts he engaged in unprofessional conduct under the National Law. The applicant (the Board) and Mr Elias have submitted a signed Agreed Statement of Facts, Proposed Findings and Determinations (Agreed Statement). They jointly submit that a condition be imposed on his registration requiring him to submit to an annual audit of his PII arrangements for the next five years.
4. For the reasons set out below, we find the allegation proved, and order that an audit condition be imposed.

1. AHPRA became aware of the gap in PII coverage in October 2016. In a call and an email with an AHPRA investigator on 12 October 2016, Mr Elias said, in effect, his not being covered was an oversight. It occurred in circumstances where he was working in different places, including interstate, a new insurance company had taken over the PII policy, and the cycle for insurance renewals did not correspond with the cycle for renewal of registration. It was unintentional, he said, and he apologised.
2. Since then, three and a half years has elapsed. In January 2017, the Board wrote to Mr Elias stating it had decided to conduct an investigation. This proceeded, and on 3 September 2018, Mr Elias was advised he would be referred to a performance and professional standards panel. But on 2 January 2019, he was advised that decision was rescinded, and instead, he would be referred to VCAT. This occurred in March 2019, and after a number of adjournments, this matter was the subject of a compulsory conference in October 2019. In light of the disruption caused by the COVID-19 pandemic, the hearing listed on 3 April was adjourned, and the proceeding stayed. But with the agreement of the parties, it was relisted for hearing on 9 April 2020 by video link.
3. Following the discussions between the parties, the agreed position is that Mr Elias admits he engaged in the conduct specified in the allegation. That is, he admits he 'failed to maintain adequate and appropriate professional indemnity insurance cover' from 1 May to 31 August 2016. This was, he said, simply an oversight on his part.

1. The public expects that professionals will hold adequate PII, so that in the event a practitioner's act or omission causes substantial actionable damage, there is no possibility of the affected person being left unable to recover for their loss. For example, if through error, a pharmacist prescribes an excessive dose of a drug, causing the customer harm. That is why the obligation to hold PII whenever a pharmacist is practising is enshrined in the National Law.
2. Regulators have a duty to enforce this obligation, in order to protect the public. Additionally, enforcement is required to maintain the reputation of the profession, and hence public confidence in the profession.
3. Accordingly, the obligation to hold adequate PII is not merely an administrative or bureaucratic requirement. Practitioners need to be assiduous in ensuring they have cover at all times they are practising. If they do not, they are obviously placing themselves at financial risk. Even if no clients are disadvantaged as a result, practitioners face adverse consequences, in the form of stressful and likely extended regulatory investigations and Tribunal proceedings brought against them, entailing trouble, expense and at the least, professional embarrassment, quite apart from the sanctions which may be imposed on them by the Tribunal.
4. On the basis of the Agreed Statement, the submissions received and our review of the material in the Tribunal Book, we find that the failure to hold PII in the circumstances of this case comprises unprofessional conduct. That is, we are satisfied it was conduct of a lesser standard than that which might reasonably be expected of the health practitioner by the public or his professional peers (under s 5 of the National Law). In many decisions concerning a failure to ensure PII is in place, a finding of professional misconduct has been made. In this case, however, we accept the position jointly put by the parties, that the conduct comprises unprofessional conduct, and note, as discussed below, that in the other disciplinary cases referred to us relating to a failure to hold PII, the conduct was of a more serious order of magnitude.
5. We now turn to the question of the appropriate determination in this case. The agreed position is an important consideration for us, but the matter always remains a question for the Tribunal alone to determine. As stated in the High Court in Commonwealth v Director, Fair Work Building Industry Inspectorate[3], there is an important policy benefit in receiving, and if appropriate, accepting, determinations which have been agreed between the parties. Further, in this instance, we note the agreed position has arisen following discussions between the parties, in which both were legally represented.
6. Mr Elias accepted his error at an early stage, has cooperated with the regulator and accepted liability for his neglect of this important professional obligation.
7. It is recognised that if a matter is hanging over a practitioner's head for an extended period, that is a mitigating factor. Here, there were long periods between various steps during the three and a half year period since this matter came to the attention of the regulator which are not attributable to Mr Elias in any way. We take that into account. We also note that over that period, the process against Mr Elias has changed course in that there was to be a professional standards panel hearing, but this was transformed into a referral to VCAT alleging professional misconduct and/or unprofessional conduct, yet in the end, a finding of unprofessional conduct has been made.
8. We were referred to a number of other cases where a practitioner was subjected to disciplinary action for not having PII in place.[4] It is fair to say, however, that this case is less serious than the other cases referred to us. We note the period here, namely four months (not all of which Mr Elias was practising for) is much shorter than in the other cases mentioned. Additionally, the finding here is not accompanied by a finding that upon renewal of registration, a false declaration was made that PII is in place (which was the case in nearly all of the other matters referred to us). These factors go to both the characterisation as unprofessional conduct, as noted, and also to determination.

1. In all the circumstances described above, we find that the determination jointly proposed is appropriate, and order that Mr Elias' registration be subject to a condition that his compliance with his PII obligations be audited for a period of, in effect, five years.

[1] The National Law is applicable in Victoria is set out in a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] The applicable Standard prior to 30 June 2016 was the Board's Professional Indemnity Insurance Arrangements Standard. The applicable Standard after 1 July 2016 was the Board's Registration Standard: Professional Indemnity Insurance Arrangements.

[3] (2015) 258 CLR 482, [2015] HCA 46

[4] Psychology Board of Australia v Elzo [2020] VCAT 345; Psychology Board of Australia v McDonald [2020] VCAT 158; Chiropractic Board of Australia v Carberry [2018] VCAT 147; Psychology Board of Australia v Rigley [2018] VCAT 1400; Medical Board of Australia v Stewart [2018] VR 6 (a decision of the State Administrative Tribunal of Western Australia); HCCC v Peng Seng Chan (40003 of 2011) (a decision of the Medical Tribunal of New South Wales); HCCC v Dr Il-Song (40004/2011 and 4001/210) [2012] NSWCA 80.