Pursuant to s.196(1) of the Health Practitioner Regulation National Law (Victoria) Act 2009 ("the National Law"), the Tribunal makes the following findings:

1. Ms Dimity Hopkinson has engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct in section 5 of the National Law

1. Pursuant to s.196(2) of the National Law, the Tribunal makes the following determinations:
   • (a) pursuant to s. 196(2)(a) Ms Hopkinson is reprimanded
   • (b) pursuant to s.196(2)(d) Ms Hopkinson's registration is suspended for a period of six months, such period of suspension to commence on 1 November 2018; and
   • (c) pursuant to s. 196(2)(b) conditions are imposed on Ms Hopkinson's registration (see schedule of conditions).

1. In April 2016, Ms Dimity Hopkinson, who is a registered pharmacist was found guilty of obtaining financial advantage ($22,418.99), by deception. The offences were committed in the course of her practice as a pharmacist.
2. On 31 August 2017, the Board made a decision to refer Ms Hopkinson's conduct to this Tribunal pursuant to s 193(1)(a)(i) of the Health Practitioner Regulation National Law (Victoria) Act 2009, ("the National Law"). On 8 December 2017, the Board filed a Notice of Allegations of professional misconduct against Ms Hopkinson.
3. The proceedings were listed for compulsory conference, conducted on 20 April 2018, following which the parties filed an "Agreed Statement of Facts and Proposed Findings and Determinations" (Agreed Statement), together with a Tribunal Book containing all the relevant documents.
4. The hearing proceeded before us on 19 June 2018.
5. The principles that apply to our approach to such an Agreed Statement are well established. The agreement between the parties is a highly relevant matter for our consideration with respect to the factual findings, the characterisation of those findings and the determinations that should be imposed. It remains, of course, our duty to determine these matters and no agreement between a regulator and the professional person under review can supplant that duty.[1] Nevertheless, departure from an agreed position ought not take place without clear or exceptional reason.[2] The Tribunal will not lightly depart from an agreed sanction where the negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances.[3] The Tribunal will, however, reality test and hear submissions in relation to any joint proposal.
6. We accepted that the following Agreed Statement of Facts succinctly and accurately reflected the material contained within the Tribunal books.

Dimity Hopkinson (Ms Hopkinson) was first registered as a pharmacist on 25 January 1995.

Between 8 October 2012 and 6 January 2014 Ms Hopkinson was:

(a) an owner and operator of the South Melbourne Pharmacy located in South Melbourne Victoria;

(b) an 'approved pharmacist' under the National Health Act 1953 (Cth) (National Health Act);

(c) registered as a pharmacist under the Health Practitioner Regulation National Law Act 2009 (Vic) Act 2009 (National Law).

Pharmaceutical benefits may be supplied by an approved pharmacist on presentation of a prescription from a medical practitioner. The approved pharmacist is required to record details of the prescription in the pharmacy's prescription dispensing software.

Under the Pharmaceutical Benefits Scheme (PBS) a pharmacist may be reimbursed by the Department of Human Services, Medicare, for the item supplied. In order to claim reimbursement for pharmaceutical benefit items supplied to a patient, a pharmacist must complete and lodge the claim for payment form certifying that all the items claimed have been supplied in accordance with the requirements of the National Health Act. The claim includes the communication of patient details to the DHS. It also creates a health record of the items being dispensed to the patient on the PBS Patient History.

Between 8 October 2012 and 6 January 2014, Ms Hopkinson lodged 71 PBS claims containing false information online with the Department of Human Services and without the items being dispensed to the patient or an authorised person. This resulted in fraudulent benefits being paid via direct deposit into a bank account associated with the pharmacy.

At the time of entering the false information into the pharmacy computer dispensing system, Ms Hopkinson would have been alerted that the correct authorised repeats had already been dispensed. Analysis of the pharmacy PBS data found multiple payment concerns.

It was identified that multiple PBS claims for the same authorised supply of a pharmaceutical item were being lodged. On 1 February 2014, a compliance pharmacist attended at the pharmacy and an interview was conducted with Ms Hopkinson at which time she made verbal admissions to lodging PBS claims without supplying pharmaceutical items, namely insulin, which resulted in fraudulent PBS benefits being paid.

Ms Hopkinson provided a one-page document listing fraudulent PBS claims which included patient names, the pharmaceutical item, the dispensing date and the original prescription date.

On 7 July 2014, a formal letter offering a record of interview was sent to Ms Hopkinson. On 1 August 2014, Ms Hopkinson participated in a record of interview at which time Ms Hopkinson made full admissions to the allegations put to her. Ms Hopkinson admitted that she had duplicated repeats for insulin and that this was unlawful and dishonest.

Ms Hopkinson also provided further information in relation to lodging PBS claims where a pharmaceutical item was not dispensed. Ms Hopkinson supplied a one-page document showing patient names, pharmaceutical item, original prescription date and the duplication repeat date.

As a result of her actions, Ms Hopkinson was paid $22,418.99 to which she was not entitled.

On 29 January 2016, the Australian Health Practitioner Regulation Agency (AHPRA), on behalf of the Pharmacy Board of Australia (Board), received correspondence from Ms Hopkinson's lawyers advising of a relevant event pursuant to section 130(3)(a)(i) of the National Law. AHPRA was advised that Ms Hopkinson had been charged with obtaining financial advantage by deception under section 134.2(1) of the Criminal Code Act 1995 (Cth) (Criminal Code).

Ms Hopkinson was convicted and fined $7,500.00. She was ordered to pay compensation in the amount of $22,418.99 and costs of $136.50. She has duly paid those amounts.

On 23 June 2016, the Board decided to commence an investigation into Ms Hopkinson's conduct, pursuant to section 160 of the National Law.

On 21 April 2016, AHPRA was again notified by Ms Hopkinson's lawyers of a relevant event pursuant to section 130(1) of the National Law. Specifically, AHPRA was advised that on 14 April 2016, in the Magistrates' Court of Victoria, Ms Hopkinson pleaded guilty to one charge of obtaining financial advantage by deception under section 134.2(1) of the Criminal Code.

1. We are satisfied that Ms Hopkinson engaged in the conduct as described. We now turn to a discussion of the appropriate findings.
2. The Agreed Summary in relation to categorisation reads as follows:

The Board referred Ms Hopkinson's conduct to the Tribunal pursuant to section 193(1)(a) of the National Law as it reasonably believed that Ms Hopkinson had behaved in a way that constituted professional misconduct.

The Notice of Allegations contains the following allegation:

1. professional misconduct within the meaning of professional misconduct in paragraphs (a) and/or (b) and/or (c) of section 5 of the National Law;

b. unprofessional conduct within the meaning of section 5 of the National Law, meaning professional conduct which is of a lesser standard than that which might reasonably be expected of the heath practitioner by the public or the practitioner's professional peers,

in that, on or about 14 April 2016, she was convicted in the Magistrates' Court of Victoria of a charge of obtaining financial advantage by deception under section 134.2(1) of the Criminal Code Act 1995 (Cth) (Criminal Code), the nature of which may affect Ms Hopkinson's suitability to continue to practise in the profession of pharmacy.

The conviction for the charge under section 134.2(1) of the Criminal Code relates to case number G10363459 whereby Ms Hopkinson:

i. Between 8 October 2012 and 6 January 2014 at South Melbourne in the State of Victoria, she did, by a deception, namely by submitting 71 Pharmaceutical Benefits Scheme (PBS) claims containing false information to the Department of Human Services - Medicare, dishonestly obtain a financial advantage, namely PBS benefits totalling $22,418.99, from the Commonwealth, contrary to section 134.2(1) of the Criminal Code.

1. Ms Hopkinson admits that the conduct set out in Allegation 1 constitutes professional misconduct within the meaning of paragraphs (a) and (c) of the definition of professional misconduct contained in section 5 of the National Law, which read as follows:

Professional misconduct is defined in s 5 of the National Law as including:

(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) 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. We are also satisfied that the conduct amounts to professional misconduct.
2. The conduct involved a serious criminal offence, committed during Ms Hopkinson's professional practice as a pharmacist.
3. Ms Hopkinson's conduct was not isolated. It involved the commission of 71 false claims over the period of about 15 months (8 October 2012 to 6 January 2014). At any point in time, before she was discovered, she could have desisted from the conduct. She did not.
4. The conduct was deliberate.
5. The conduct was in breach of the trust placed:
   • (i) in registered pharmacists by the Department of Health - Medicare, which relies on the honesty of such practitioners for the integrity and viability of the PBS scheme; and
   • (ii) in Ms Hopkinson by her patients, whose patient details were used as part of the fraud, resulting in the creation of a false health record of items being dispensed to those patients;
6. The conduct fell substantially short of the expectations set out in the Code of Conduct, Pharmacy Board of Australia, (as in force at the relevant time) which emphasises the importance of registered health practitioners delivering effective health services within an ethical framework. At 1.2[4] it is provided:

"Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display such qualities as integrity, truthfulness, dependability and compassion".

1. The conduct also fell substantially short of the expectations of the Code of Ethics for Pharmacists (see Tab 18 of the Tribunal Book) as in force at the relevant time which provided in Principle 3:[5]

A pharmacist upholds the reputation and public trust of the profession.

Pharmacists are regarded as role models and are granted certain professional privileges. In return, individual members of the community and the whole of society expect professional behaviour which warrants trust and respect.

3.1 Demonstrate accepted standards of professional and personal behaviour.

3.2 Respect the trust that individuals and society place in the profession...

1. Having found that the conduct amounts to professional misconduct we turn to the joint submission on determinations

1. The parties jointly submitted that the appropriate determinations are:
   • (a) That Ms Hopkinson be reprimanded;
   • (b) That Ms Hopkinson's registration be suspended for a period of six months; and
   • (c) That conditions be imposed on Ms Hopkinson's registration (see schedule of conditions attached).
2. The determinations available to us are set out in s 196(2) of the National Law.
3. We are satisfied that the agreed determinations are appropriate.
4. We will reprimand Ms Hopkinson.
5. In Peeke v Medical Board of Victoria (unreported, Supreme Court of Victoria no 10170 of 1993, 19 January 1993), His Honour Justice Marks observed that a reprimand being a serious form of censure and condemnation "does not trivialise a serious lapse of professional standards and has the potential for serious adverse implications".
6. We are further satisfied having regard to the nature and gravity of the misconduct, that a suspension is necessary.
7. Whilst we are satisfied that Ms Hopkinson has reflected on her conduct and is unlikely to repeat it, we need to ensure she is deterred from repeating it.
8. We must also deter others from engaging in similar conduct. of the public
9. In Nursing and Midwifery Board of Australia v Faulkner[6] Holmes CJ, Philippides and McMurdo JJA said:

In general, the practitioner's punishment under the criminal law is not a factor which should moderate the disciplinary sanction, because the purpose of that sanction is not to punish the practitioner, but to protect the public. It is recognized that the protection of the public extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners. There is a deterrent element involved in the protection of the public in this context. In that way, where a substantial punishment has been imposed on the practitioner under the criminal law for the misconduct for which the practitioner is to be disciplined, that punishment can be relevant. But its relative importance will obviously depend upon the facts and circumstances of the particular case.[7]

1. Ms Hopkinson's conduct had the capacity to undermine the regard in which the profession is held by members of the public. In imposing a period of suspension and demonstrating that there will be significant penalties for this type of conduct, we also protect the reputation of the profession and ensure the public can continue to hold confidence in it.
2. Each case must be determined according to its own facts and circumstances. The parties drew our attention to several cases involving fraudulent billing, and/or cases involving practitioners being charged with the offence of obtaining financial advantage by deception.
3. In Medical Board of Australia Mazumdar[8] the Tribunal suspended a medical practitioner's registration for a period of six months. The professional misconduct consisted of fraudulent billing. At [17]-[20] the Tribunal summarised other recent cases dealing with dishonesty in the course of practise. We will not repeat the analysis here. Suffice to say, we are satisfied that the agreed determinations are within the relevant range of determinations imposed in similar cases.
4. We agree that the period of six months' suspension as agreed between the parties is appropriate.
5. Section 5 of the Pharmacy Regulation Act 2010, makes it clear that a person must not own or have a proprietary interest in a pharmacy unless the person is a registered pharmacist.
6. Ms Hopkinson and her business partner intend to sell the pharmacy. We were asked by Ms Hopkinson to delay the commencement date of her suspension until the sale of the pharmacy which is anticipated to take place by November 2018. The Board did not oppose this and we were satisfied that it was appropriate to do so. The aim of our determination is not to punish Ms Hopkinson or her business partner. Once the pharmacy is sold, she will however have time to reflect on her conduct through a period of suspension.
7. Ms Hopkinson will also, if she intends to return to practise, be required to abide by a condition requiring her to undertake mentoring, further informing her ethical practice moving forward. Whilst we are satisfied, as demonstrated by her full cooperation with the Board, that Ms Hopkinson has insight, we are satisfied that guidance from an independent person in the form of a very experienced practitioner will cement her learning. The mentoring will allow for four hours with a maximum of one hour per month over a period of six months. The details of this condition are set out in the attached Schedule of Conditions. Although we varied the number of hours, from that originally proposed by the parties, following discussion with the parties this became the agreed position.

1. We will make the following orders.
2. Pursuant to s.196(2) of the National Law, the Tribunal makes the following determinations:
   • (a) pursuant to s. 196(2)(a) Ms Hopkinson is reprimanded
   • (b) pursuant to s.196(2)(d) Ms Hopkinson's registration is suspended for a period of six months, such period of suspension to commence on 1 November 2018; and
   • (c) pursuant to s. 196(2)(b) conditions are imposed on Ms Hopkinson's registration (see schedule of conditions)

1. Ms Hopkinson must, upon her return to practise, be mentored by another registered health practitioner in relation to the following topics:
   • (a) the principles of ethical professional conduct, including in relation to billing practices with respect to Medicare;
   • (b) the requirements for professional behaviour as outlined in the Pharmacy Board of Australia's (Board's) Code of Conduct, the Board's Guidelines for Proprietor Pharmacists, and the Pharmaceutical Society of Australia's Code of Ethics for Pharmacists;
   • (c) the consequences of unethical professional conduct, including in relation to unethical billing practices and the adverse impact on the reputation of the pharmacy profession and patient trust; and
   • (d) the nature of the conduct that gave rise to the conditions and the steps Ms Hopkinson has and is taking to incorporate the lessons she has learnt, including during the education, into her practise of the profession including with respect to her billing practices.

For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

1. The mentoring must consist of a minimum of 4 hours completed over six months and comprise of, four sessions with each session being no more than one hour duration and with no more than one session per calendar month
2. Within 14 days of Ms Hopkinson notifying the Board of her return to practise, Ms Hopkinson must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. Ms Hopkinson must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
3. Within 14 days of Ms Hopkinson's return to practise and her notification to the Board of this fact, Ms Hopkinson must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:
   • (a) every month
   • (b) at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring
   • (c) whenever the mentor has a concern or becomes aware of a concern regarding Ms Hopkinson's conduct or professional performance, and
   • (d) when otherwise requested by AHPRA or the Board.
4. In the event an approved mentor is no longer willing or able to provide the mentoring, Ms Hopkinson is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by Ms Hopkinson within 21 days of becoming aware of the termination of the mentoring relationship.
5. Within 30 days of the conclusion of the mentoring, Ms Hopkinson must provide a report demonstrating, to the satisfaction of the Board, that she has reflected on the issues that gave rise to the condition requiring her attendance for mentoring and which outlines how she has incorporated into her practice the lessons learnt from the mentoring
6. Within 21 days of the return to practise of Ms Hopkinson, she must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the coproprietor or coowner, or equivalent (the senior person) at each current place of practice. In providing this form, Ms Hopkinson acknowledges that:
   • (a) AHPRA will contact the senior person and provide them with a copy of the conditions on Ms Hopkinson's registration or confirm that the senior person has received a copy of the conditions from Ms Hopkinson, and
   • (b) Ms Hopkinson will be required to provide the same form:
     • (iii) within seven days of the commencement of practise at each and every subsequent place of practice; and
     • (iv) within seven days of each and every notice of any subsequent alteration of these conditions.
7. All costs associated with compliance with the conditions on her registration are at Ms Hopkinson's own expense.

[1] Medical Board v McGrath [2014] VCAT 641 at [19]- [20].

[2] Medical Board of Australia v Fox [2016] VCAT 408 at [16].

[3] Secretary to the Department of Planning and Community Development v Muto [2011] VCAT 328 at [16] per Ross P.

[4] See also 5.1 "Practitioners have a responsibility to contribute to the effectiveness and efficiency of the health care system" and 8.1 "in professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community".

[5] This is referred to in the Code of Conduct (see page 74 of the Tribunal Book).

[6] Nursing and Midwifery Board of Australia v Faulkner [2018] QCA 97.

[7] [2018] QCA 97 at [51].

[8] [2018] QCA 97 at [51].