The respondent having admitted that he engaged in conduct which constitutes professional misconduct within the meaning of paragraphs (a) and (b) of the definition of professional misconduct contained in section 5 of the Health Practitioner Regulation National Law the allegations are found proved.

1. The respondent is reprimanded.
2. The respondent's registration as a pharmacist is suspended for a period of six months commencing on 1 March 2019.
3. The following conditions are placed on the respondent's registration as a pharmacist following his return to practice:
   • (a) Pursuant to section 196(2)(b)(i) of the National Law that he successfully complete the Pharmaceutical Society of Australia course titled 'Ethics and Dispensing in Pharmacy Practice' by 30 December 2019 and produce to the Pharmacy Board of Australia certification of completion by the end of January 2020;
   • (b) Pursuant to section 196(2)(b)(v) of the National Law, that he be mentored by a registered Pharmacist approved by the Pharmacy Board of Australia for no less than four hours per week and for a period of six months commencing on 1 September 2019. Such Pharmacist is to provide written reports as to Mr Foo's professional practice including the dispensing and record keeping of Schedule 4 and 8 poisons (such Schedule 4 poisons referred to in the Pharmacy Board of Australia's, 'Guidelines on Practice Specific issues - Drugs of Abuse') to the Pharmacy Board of Australia by the first day of each month for the said period. The cost of mentoring and the cost of written reports to be borne by Mr Foo;
   • (c) That he only practise as a pharmacist when another registered pharmacist (not his wife) is on the same premises for a period of 12 months such period commencing on 1 September 2019.

1. The Pharmacy Board of Australia (Board) was established and replaced the previous State and Territory boards (of participating jurisdictions and co-regulatory jurisdictions) on 1 July 2010, consequent to the enactment of the Health Practitioner Regulation National Law (National Law).
2. Mr Ah Kow Foo (Mr Foo) was first registered as a pharmacist on 13 November 1974. At all relevant times, Mr Foo has been (and is) a registered pharmacist under the National Law.

1. On 12 July 2015, in accordance with section 130 of the National Law, Mr Foo notified the Board that, on 6 July 2015, he had been charged with:

1. one contravention of regulation 14 of the Drugs, Poisons and Controlled Substances Regulations 2006 (Vic) (DPCS Regulations); 2. two contraventions of section 36 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (DPCS Act); and

1. 93 contraventions of regulation 15 of the DPCS Regulations.
2. Mr Foo had been charged consequent to an investigation by the Department of Health and Human Services (DHHS) (referred to further in paragraph 5 below). The charges related to Mr Foo's professional conduct as a registered pharmacist, practising at Laird's Pharmacy, 1312 Centre Road, Clayton, Victoria (being a pharmacy co-owned by Mr Foo), between approximately September 2012 and August 2013 (relevant time).
3. In this respect, on 10 August 2015, DHHS notified the Board that Mr Foo had been subject to an investigation into an individual, Ms AD, who obtained significant quantities of drugs of dependence from at least fourteen pharmacies during the relevant time by presenting forged or fraudulently altered prescriptions. The DHHS investigation concluded that, had Mr Foo contacted Ms AD's purported prescriber, or reported the excessive prescribing to the Department as he admits he ought to have done, the fraudulent nature of the prescriptions would have been discovered and/or the extent of the unlawful supply would have been of a magnitude that might have been explained as an honest and reasonable mistake.
4. An analysis of pharmacy records conducted by DHHS revealed that directions for the administration of the medication in question, in genuine prescriptions presented to various pharmacies by Ms AD, varied between two and six tablets of alprazolam and diazepam per day. In contrast, by the end of the relevant time, the calculated daily rate of supply from Laird's Pharmacy was 11 tablets of alprazolam 2mg (alprazolam) and 13 tablets of diazepam 5mg (diazepam) per day. Between approximately April and August 2013 the calculated daily rate of supply from Larid's Pharmacy was approximately 15 tablets of alprazolam and 17 tablets of diazepam per day.
5. On 11 December 2015, Mr Foo was convicted in the Magistrates' Court of Victoria of:

1. one charge of contravention of regulation 14 of the DPCS Regulations, namely failing to notify DHHS that Schedule 4 poisons (diazepam and alprazolam) had been obtained from him by a person by means of a false pretence; 2. two charges of contravention of section 36 of the DPCS Act, namely failing to notify DHHS when he was called upon to dispense a Schedule 4 poison (alprazolam) to a person in greater frequency than was reasonably necessary; and

1. six charges of a contravention of regulation 5 of the DPCS Regulations, namely supply of Schedule 4 poisons (alprazolam and diazepam) other than on the original prescription of a registered medical practitioner.
2. Mr Foo was convicted and ordered to pay a fine in the amount of $20,000 and costs in the amount of $15,000.
3. On 18 December 2015, Mr Foo's legal representatives advised the Australian Health Practitioner Regulation Agency, on behalf of the Board that Mr Foo had pleaded guilty to the charges outlined above.
4. On 21 July 2017, the Board determined to refer the matter of Mr Foo's conduct to the Tribunal pursuant to section 193(1)(a)(i) of the National Law because it reasonably believed that, by way of his convictions in the Magistrates' Court of Victoria of nine charges in relation to the dispensing of Schedule 4 poisons (as set out in paragraph 2.5 above), he had engaged in conduct that constituted professional misconduct as defined in the National Law.

1. Professional misconduct is defined by section 5 of the National Law as follows:

(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 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. Mr Foo admits that he engaged in the conduct particularised in the Notice of Allegations and that his conduct constitutes professional misconduct within the meaning of paragraphs (a) and (b) of the definition of professional misconduct contained in section 5 of the National Law.
2. The Board maintains that Mr Foo's conduct also constitutes professional misconduct within the meaning of (c) of the definition of professional misconduct contained in section 5 of the National Law. In maintaining this position, the Board submits that Mr Foo's conduct was inconsistent with him being a fit and proper person to hold registration in the profession. Mr Foo opposes this position.

IS MR FOO'S CONDUCT INCONSISTENT WITH HIM BEING A FIT AND PROPER PERSON TO PRACTICE PHARMACY?

1. The Tribunal is satisfied that Mr Foo's conduct fell short of his obligations as a pharmacist to ensure the health and wellbeing of his patients and, potentially, other members of the public. However, having said that, the question remains as to whether Mr Foo is a fit and proper person.
2. The concept of a fit and proper person is well established. In Australian Broadcasting Tribunal v Bond[1] Toohey and Guadran JJ said at [36]:

The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.

The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

1. The Courts have also determined that the words 'fit and proper' give the widest scope for judgment, and the judgment as to whether an applicant is to be considered a fit and proper person involves three things - honesty, knowledge and ability[2] and that regret, evidence of rehabilitation, understanding the error of one's ways, remorse and a determination not to repeat those or other offences are relevant to the consideration[3].
2. The question of whether Mr Foo is a fit and proper person must be assessed in light of the purposes of the Act. Taken as a whole, the Act is designed to protect public health by ensuring that health professionals maintain proper ethical and professional standards so as to:
   1. protect the public;
   2. protect the profession in the sense of maintaining its stature and integrity in the eyes of the public.[4]

1. Mr Foo first qualified as a pharmacist in Singapore in 1968 and practised in Singapore and Malaysia before moving to Australia in 1988. In a response to the Board's investigation into his conduct, Mr Foo referred to his practice in Singapore and Malaysia as being 'without any difficulty'. Nothing has been put before the Tribunal to contradict this position. Mr Foo is now aged in his early 70s and has been practising as a pharmacist in Australia for over 27 years. In his response to the Board's investigation Mr Foo states that he has never before, or since, had any 'issues of this kind with the Department of Health or AHPRA (including the Pharmacy Board)'.

1. The Board accepts that Mr Foo has been practising for almost five years since the relevant conduct without incident and has made efforts at educating himself and adapting procedures within the pharmacy since the relevant conduct. In his response to the Board, Mr Foo made reference to changes to his practice by way of record keeping, utilising dispensing software and recording of communication with patients and prescribers. Mr Foo also describes how he reminds other pharmacists working with him of the importance of ensuring that they communicate with the prescriber where appropriate and also of their obligations regarding notifications to the Department.
2. Factors which are to be considered are reformation of character and the effluxion of time. In Ex parte Tziniolis re The Medical Practitioners Act [1967] 1 NSWLR 357, at 461 in relation to the passage of time Walsh JA said:

Reformations of character of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.

1. However in Aavelaid v Dental board of Victoria (1999) VSC 255 at paragraph 75 Coldrey J states:

The nature of the initial misconduct, the subsequent attitude of the person disqualified towards it, that persons behaviour during the period of disqualification, and the passage of time itself are all factors which will be relevant in determining whether a person has demonstrated that they are currently of good character.

1. In the context of considering the question of whether Mr Foo is fit and proper, notice should also be taken of his approach to the investigation by the Department of Health, his plea of guilty to prosecution brought by the Department, his co-operation with the Board and his approach to this proceeding. Taken as a whole, Mr Foo's co-operative approach is indicative of a person who has demonstrated that they are currently of good character.
2. Having regard to the above, the Tribunal is not satisfied to the appropriate standard that Mr Foo is not a fit and proper person to hold registration from the profession pursuant to sub-section (c) of the definition of professional misconduct contained in section 5 of the National Law.

1. Mr Foo having admitted that he engaged in the conduct and that his conduct constitutes professional misconduct within the meaning of paragraphs (a) and (b) of the definition of professional misconduct contained in section 5 of the National Law, these allegations are found proved.

1. It is now necessary to determine the appropriate disposition. In doing so, it is necessary to determine the significance of, and satisfy, the following:

It should be noted that punishment is not a factor.

1. Specific deterrence, whilst being a factor in Mr Foo's case by way of reminding him that his conduct was unacceptable, does not take primacy as it is clear that Mr Foo has otherwise practised without blemish. Additionally the Tribunal is satisfied that Mr Foo has taken steps to improve his dispensing practice (as referred to earlier). It is unlikely that Mr Foo will engage in conduct of this nature again.

1. Of greater significance is the requirement of general deterrence. It is necessary for members of the profession to be reminded that conduct such as that engaged in by Mr Foo is unacceptable and that it will attract sanctions.

1. Prescription pharmaceutical products and in particular dangerous ones are the subject of close regulation for a purpose. Unregulated or inappropriate supply has the potential to compromise safety of members of the public. The system of supply relies to no small extent on those who are given the authority to release pharmaceutical products into the community. Quite apart from the duties of the prescribers, it is the pharmacist who must ensure that the supply is appropriate.

Protection of the reputation of the profession

1. The pharmaceutical profession holds a very high status in the eyes of the public. This is because the public relies on members of the profession to play their role in protecting the health of members of the public and because this role is widely acknowledged. Failure to meet standards or act appropriately has great potential to damage the reputation of the profession.

1. The Tribunal is satisfied that the requirements of general deterrence, protection of the public and protection of the reputation of the profession compel a disposition of some severity. Against this, the mitigating factors of Mr Foo's history in practice both before and after the conduct, his approach to the court proceeding, his approach to this proceeding and his remorse and insight are to be balanced.
2. The Tribunal considers that it is appropriate to reprimand Mr Foo and to suspend his registration for a period of six months commencing on 1 March 2019. Additionally it is appropriate to place the following conditions on Mr Foo's registration following his return to practice:

1. Pursuant to section 196(2)(b)(i) of the National Law that he successfully complete the Pharmaceutical Society of Australia course titled 'Ethics and Dispensing in Pharmacy Practice' by 30 December 2019 and produce to the Pharmacy Board of Australia certification of completion by the end of January 2020; 2. Pursuant to section 196(2)(b)(v) of the National Law, that he be mentored by a registered Pharmacist approved by the Pharmacy Board of Australia for no less than four hours per week and for a period of six months commencing on 1 September 2019. Such Pharmacist is to provide written reports as to Mr Foo's professional practice including the dispensing and record keeping of Schedule 4 and 8 poisons (such Schedule 4 poisons referred to in the Pharmacy Board of Australia's, 'Guidelines on Practice Specific issues - Drugs of Abuse') to the Pharmacy Board of Australia by the first day of each month for the said period. The cost of mentoring and the cost of written reports to be borne by Mr Foo;

1. That Mr Foo only practise as a pharmacist when another registered pharmacist (not his wife) is on the same premises for a period of 12 months such period commencing on 1 September 2019.

[1] [1990] HCA 33; (1990) 94 ALR 11.

[2] Hughes and Vale Pty Ltd v State of NSW (No. 2) [1955] HCA 28; (1955) 93 CLR 127 at 156.

[3] Wilco Meats Pty Ltd v Secretary, Department of Agriculture, Fisheries and Forestry [1999] AATA 932; (1999) 59 ALD 214.

[4] Ha v Pharmacy Board of Victoria [2002] VSC 322 at [97].