1. In relation to allegation 1 the Tribunal finds under s.196(1)(b)(iii) of the Health Practitioner Regulation National Law Act 2009 (Vic) (the "National Law") that the respondent engaged in professional misconduct.
2. In relation to allegation 2 the Tribunal finds under s.196(1)(b)(ii) of the National Law that the respondent engaged in unprofessional conduct.
3. In relation to allegation 3 the Tribunal finds under s.196(1)(b)(ii) of the National Law that the respondent engaged in unprofessional conduct

1. The respondent is reprimanded pursuant to s.196(2)(a) of the Health Practitioner Regulation National Law Act 2009 (Vic) ("The National Law").
2. The following conditions (detailed in schedule 1) are imposed on the respondent's registration pursuant to s. 196(2)(b)(i) of the National Law:
   • (a) the respondent is to complete the following program of education:

"Ethics and Dispensing in Pharmacy Practice" (consisting of parts 1, 2, 3 and 4) offered by the Pharmaceutical Society of Australia; and

1. In 2014, Ms Suet Yee Christine Mak, who is a pharmacist, was found guilty in the Magistrates' Court of Victoria of the theft of pharmaceutical products. She did not advise the Pharmacy Board of Australia, ("the Board") of either the fact that she was charged with, or the fact that she was found guilty of, the offences.
2. Unfortunately, this was not the first such finding of guilt against her. In 2006, she was also found guilty in the Magistrates' Court of theft relating to medication stolen from the pharmacy where she was employed.
3. The Board considered that Ms Mak's 2014 conduct may amount to professional misconduct and accordingly, on 8 February 2017, referred her conduct to this Tribunal, pursuant to section 193(1)(b) of the Health Practitioner Regulation National Law Act 2009 (Vic) (the "National Law"). A Letter of Referral and Notice of Allegations was filed with the Tribunal on that date[1].
4. A hearing proceeded before us on 14 November 2017, at which time the Board and Ms Mak placed an Agreed Statement of Facts before us. Having read all of the material contained within the Tribunal book and hearing from the parties we were satisfied, and advised the parties accordingly, that the following accurately summarises the relevant facts.

1.1 Ms Mak is a Registered Pharmacist who was first registered on 2 January 1990.

1.2 In 2013 Ms Mak was a sole trader trading as and running a number of pharmacies including Care Pharmacy Bell Post Hill, Care Pharmacy Broadmeadows, Care Pharmacy Watsonia, Care Pharmacy Heidelberg and Care Pharmacy Deer Park, and she was also a director of an associated company Mak and Zac Associates Pty Ltd (collectively, the Care Pharmacy Group).

1.3 In late 2013 Mr George Georges of Ferrier Hodgson was appointed the Receiver and Manager of Mak and Zac Associates and the Care Pharmacy Group. On 12 November 2013, the Australian Health Practitioner Regulation Agency received a notification by Mr Georges regarding Ms Mak's conduct in relation to the removal of stock from the Care Pharmacy Group.

1.4 On 10 December 2013, Ms Mak entered into bankruptcy.

1.5 On 7 January 2014, the Board decided to investigate the notification.

2.1 In or around March 2014, Ms Mak was charged by Victoria Police as follows:

That between 28 August 2013 and 14 October 2013, she did steal pharmaceutical products, being property belonging to the Care Pharmacy Group and valued at $15,000 in contravention of section 74 of the Crimes Act 1958 (Vic) (the Charge).

2.2 As a consequence of the Charge, the Board's investigation was placed on hold pending the outcome of the criminal proceedings against Ms Mak.

2.3 On 28 October 2014 Ms Mak pleaded guilty to the Charge in the Magistrates' Court and was sentenced without conviction to an undertaking to be of good behaviour for a period of 12 months. She was also required to pay $300 to the court fund. (allegation 1). We also note, and the parties agree that Ms Mak did not notify the Board within seven days of the charges or the finding of guilt (allegations 2 and 3)

2.4 Ms Mak currently operates a compounding business in Hawthorn of which she is the sole proprietor. She was discharged from bankruptcy on 17 January 2017.

1. The parties jointly submitted that the conduct underpinning Allegation 1 (as amended) constitutes professional misconduct.
2. Professional misconduct is defined in section 5 of National Law to include unprofessional conduct 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.
3. We agreed with the parties, and decided in accordance with s.196(1)(b)(iii) of the National Law, that Ms Mak's conduct does amount to professional misconduct for the following reasons.
4. Ms Mak was found guilty of theft and admits her guilt.
5. Theft is always a serious matter. It is an indictable offence contrary to the Crimes Act 1958.
6. It is completely unacceptable for any health professional to engage in offences of dishonesty.
7. Unsurprisingly, the Code of Conduct for Pharmacists in Australia provides that pharmacists must be ethical and trustworthy and be honest and transparent in financial and commercial matters relating to work, including dealings with employers. The public expects pharmacists to adhere to strict principles. Ms Mak did not do so.
8. The offending occurred within the practise of her profession at a time when Ms Mak was in a position of trust as an employee pharmacist.
9. She encouraged other staff to also act dishonestly in circumstances wherein she was tasked with supervising those staff members.
10. Ms Mak breached the obligations and responsibilities toward the appointed Receivers and Managers. The conduct occurred in circumstances where the pharmacy was already in a perilous position.
11. Her conduct was premeditated and organised.

1. The parties jointly submitted that the conduct underpinning Allegations 2 and 3 (as amended) constitute unprofessional conduct.
2. Unprofessional Conduct of a registered health practitioner is defined in section 5 of National Law to mean professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.
3. We agreed with the submissions of the parties and decided in accordance with s.196(1)(b)(ii) of the National Law, that Ms Mak's conduct amounts to unprofessional conduct for the following reasons.
4. Health practitioners have statutory responsibility under the National Law to report relevant matters. Section 130(1) of the National Law requires that a registered health practitioner must, within seven days after becoming aware that a "relevant event" has occurred in relation to the practitioner, give the Board that registered the practitioner, written notice of the event. A "relevant event" includes being charged with an offence punishable by 12 months imprisonment or more (s.130(a)(i) of the National Law) and being the subject of a finding of guilt punishable by imprisonment (s.130(a)(ii) of the National Law)
5. Ms Mak failed to notify the Board within the requisite time of the charges or the finding of guilt.
6. The Board and the Australian Health Practitioner Regulation Agency, ("AHPRA"), rely on proactive reporting of relevant matters to ensure the proper regulation of the profession. Ms Mak was aware of her obligations. It was not the first time that she had been through disciplinary processes relating to offences of dishonesty.

1. The parties made separate submissions as to the appropriate determinations. We were asked by the Board to reprimand Ms Mak, suspend her registration and impose conditions on her registration requiring that she undertake further education and mentoring. Ms Mak submitted that we should not suspend her registration.
2. We turn then to a consideration of those submissions, noting at the outset that ultimately the only area of divergence between the parties surrounded the question of whether Ms Mak's registration should be suspended for any period of time.

1. The Board submitted and Ms Mak accepted, that we should reprimand Ms Mak under s. 196(2)(a) of the National Law.
2. We agree that it is appropriate to do so.
3. A reprimand is an important tool in disciplinary proceedings in which to publicly condemn the conduct of a health practitioner. There is no doubt that the conduct of Ms Mak is worthy of the censure.
4. 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".
5. Ms Mak is reprimanded.

1. The Board submitted that Ms Mak's registration should be suspended for a specific period of not less than three months. Although the Board did not contend that Ms Mak is permanently unfit to practise, the Board emphasised that a suspension, albeit of short duration, would send a powerful message to Ms Mak, the professional community and the community at large that her conduct represented a significant departure from acceptable standards, meriting a significant sanction.
2. Ms Mak contended that a suspension would have a crushing impact on her, effectively sending her back into bankruptcy.
3. It is frequently important in these types of proceedings to deter an individual practitioner from re-engaging in such conduct. It is also important to deter others who may be minded to act in a like manner.
4. Whilst deterrence is an extremely important factor in these types of matters, it must however be balanced against all of the other considerations relevant in any case. The Tribunal should never take a "one determination fits all" approach to the imposition of appropriate determinations.
5. Determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining the stature and integrity in the eyes of the public. They are never meant to be punitive in nature.
6. There are a number of factors in this case that weigh heavily in favour of imposing a suspension on Ms Mak's registration
7. Her conduct clearly has the potential to undermine the regard in which the profession is held by members of the public.
8. The conduct was serious and repeated earlier 2006 conduct of a similar nature wherein Ms Mak was the subject of criminal charges in relation to theft from a pharmacy where she was employed. She was reprimanded in 2010 by a Professional Standards Panel of the Board in relation to the conduct underlying that criminal charge together with her failure to declare that criminal charge when renewing her registration.
9. It is gravely concerning to us that she once again engaged in similar conduct. The reprimand that she received in 2010 seemingly had no deterrent effect on her.
10. Ultimately however, we were not convinced that suspending Ms Mak's registration for the brief period proposed by the Board would now serve any useful purpose, either in terms of specific deterrence or general deterrence.
11. We are mindful in this regard that further potentially aggravating features are missing in this case. Ms Mak did not for example steal schedule 4 or schedule 8 drugs. There was no risk to any patient nor any direct harm to the public (over and above her obligation to safeguard the assets for the benefit of the creditors).
12. We also accepted that suspension of her registration would, by its effect, be punitive in nature, effectively putting Ms Mak out of business.
13. This is because she cannot afford to maintain payment of her rental of the premises and business expenses without employment. Ms Mak runs her compounding pharmacy without assistance. A suspension of her registration may result in her losing her clientele.
14. Ms Mak told us and we accept that she has completely exhausted her family supports. She has no supports from other pharmacists having dishonoured the profession by her conduct. Ms Mak presented before us as unhappy and isolated.
15. We considered it preferable to impose determinations which focused on and facilitated her ongoing rehabilitation and the consequent protection of the public. There were a number of factors in this case that steered us in the direction of focusing on Ms Mak's future in pharmacy rather than looking backward at her conduct in determining how this matter should be determined.
16. We considered the most relevant features, in reaching an appropriate outcome to be - the context of the conduct - the state of Ms Mak's mental health and well-being; her remorse and insight, and her subsequent conduct. We were also mindful of the length of time that has evolved since these matters occurred. We will address each in turn.

Ms Mak's mental health and well-being at the time of the conduct

1. We heard evidence from Ms Mak that her conduct occurred during a time of great personal stress because of the bankruptcy and other stresses in her personal life. We read a brief psychological report dated 14 July 2014, prepared for the purposes of the Magistrates' Court proceedings, which confirmed that following the conduct, Ms Mak received psychological treatment for anxiety and depression. Her depression was recorded as being severe.
2. We accept that at the time of her conduct Ms Mak was under enormous personal stress. This was a difficult and challenging time in her life. We accept that she was entering into bankruptcy and that her life was essentially falling apart. We accept that her offending took place during a time when, as she describes it, her life was "spiralling out of control".
3. We also accept that it was in this context that her failure to report the offending to the Board must also be seen. We accept that during this period Ms Mak had an inability to be appropriately proactive in the required manner.

1. Ms Mak gave evidence which we accepted, that she now fully understands the seriousness of her conduct. She emphasised that she has learnt from her mistakes and that there would not be a repeat.
2. We accept that Ms Mak now understands that her conduct was completely unacceptable. We accept that she has learnt grave lessons through the criminal proceedings coupled with these proceedings. We accept that she has been placed under enormous stress as a result of the proceedings. She is well aware of the fact that any further misconduct would most likely result in the suspension or cancellation of her registration.

1. On a positive note, Ms Mak was released from her bankruptcy in January 2017. She described her passion for her work and emphasised that her work is her refuge. She is desperate to rebuild her life and can now see her way ahead.
2. We are very mindful of the lengthy delay in the Board referring the matter to the Tribunal. It is now 4 years since the offending and 3 years since the criminal proceedings.
3. Ms Mak has had an extensive period awaiting the outcome of the criminal proceedings and these proceedings within which to reflect on her conduct.
4. Ms Mak has rebuilt her life significantly in that time.
5. She has had time to reflect on her conduct and demonstrate a lengthy period without a repeat of it.
6. We accept that a three-month suspension would have a devastating impact on Ms Mak, effectively ending her practice. It is not the role of disciplinary proceedings to further punish an individual. That is a matter in the domain of the Criminal Courts.
7. In the circumstances of this case, these factors weigh against suspension at this point in time.

Imposition of a condition on practitioner's registration (National law s. 196(2)(b)(i) to undertake further education and mentoring/counselling

1. The Board submitted that we should impose a condition on Ms Mak's registration that she be required to undertake education in relation to legal and ethical obligations on the practice of pharmacy. Ms Mak gave evidence that she was willing to complete such a course.
2. We agreed that further education would benefit Ms Mak in her practice and act as a protector against further inappropriate conduct.
3. Following discussion, with the parties, the course "Ethics and Dispensing in Pharmacy Practice" (consisting of parts 1, 2, 3 and 4) offered by the Pharmaceutical Society of Australia was identified as being the most appropriate to achieve this purpose.
4. It is an online course spanning approximately 67 hours and a program of education approved by the Board. Ms Mak can engage in the course at a time that best suits her and is consistent with her dedicating her time to her practice.
5. We will require Ms Mak to complete the education within nine months.
6. We will require her within 21 days of the completion of the education to provide AHPRA with:
   • (a) evidence of successful completion of the education;
   • (b) a reflective practice report demonstrating, to the satisfaction of the Board, that she has reflected on the issues that gave rise to this condition and how she has incorporated the lessons learnt in the education into the her practice; and
   • (c) evidence of having undertaken and successfully completed any formal assessment component of the education.

1. The Board submitted that Ms Mak should be mentored by another registered pharmacist in relation to her legal and ethical obligations in the practice of pharmacy. The Board submitted that the mentoring should comprise a minimum of six sessions with each session being of 1 hour duration occurring weekly.
2. We were impressed that Ms Mak embraced the idea of mentoring. She fully understands the need to engage in it.
3. She was able to articulate with great insight the potential benefits that she would achieve through engaging on a fairly regular basis with another experienced member of the profession.
4. She openly confessed to feeling isolated within the profession.
5. We agree that Ms Mak would benefit from mentoring.
6. Ms Mak agreed with our suggestion that a longer period of mentoring than the 6 sessions suggested by the Board would be appropriate.
7. We will place a condition on Ms Mak's registration that will require Ms Mak to be mentored by a skilled registered pharmacist. The mentoring will cover legal and ethical obligations in the practise of pharmacy including the professional responsibilities of pharmacy proprietors. It does not however need to be limited to this topic. We consider it appropriate that the mentoring relationship addresses issues as they arise over the term of the relationship.
8. Mentoring will remind Ms Mak of her ethical obligations and appropriately re-engage her with the Pharmacy community.
9. We consider that 9 mentoring sessions spread out over a 9 month period at intervals agreed between the mentor and Ms Mak would provide a protective factor against further such conduct.
10. Ms Mak said that she did not know to whom she could turn to act in the role. In those circumstances, the Board agreed to provide Ms Mak with a list of Board approved mentors within 7 days of this determination. Thereafter we will require Ms Mak to nominate her selected mentor.

1. We are satisfied that with the imposition of conditions on Ms Mak's registration, coupled with the reprimand, that the public will be protected as will the maintenance of the standards of the profession.
2. We will order as follows:
3. The respondent is reprimanded pursuant to s.196(2)(a) of the Health Practitioner Regulation National Law Act 2009 (Vic) ("The National Law").
4. The following conditions (detailed in schedule 1) are imposed on the respondent's registration pursuant to s. 196(2)(b)(i) of the National Law:
   • (c) the respondent is to complete the following program of education:

"Ethics and Dispensing in Pharmacy Practice" (consisting of parts 1, 2, 3 and 4) offered by the Pharmaceutical Society of Australia; and

1. The Practitioner must undertake and successfully complete the following program of education, approved by the Board and including a reflective practice report, in relation to legal and ethical obligations in the practice of pharmacy:

"Ethics and Dispensing in Pharmacy Practice" course (consisting of Parts 1, 2, 3 and 4) offered by the Pharmaceutical Society of Australia.

1. The Practitioner must complete the education within 9 months of the Tribunal's Order.
2. Within 21 days of the completion of the education, the Practitioner must provide to AHPRA:
   • (a) Evidence of successful completion of the education.
   • (b) A reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice.
   • (c) Evidence of having undertaken and successfully completed any formal assessment component of the education.
3. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

1. The Practitioner must be mentored by another registered pharmacist in relation to legal and ethical obligations in the practice of pharmacy, including the professional responsibilities of pharmacy proprietors.

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

1. The mentoring must comprise no less than 9 sessions with each session being of one hour duration, occurring weekly.
2. Within 21 days of the receipt from the Board of a list of Mentors, the Practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
3. Within 21 days of the notice of the imposition of these conditions the Practitioner 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 the Practitioner'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 required, the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the Practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
5. Within 21 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practice.

The above conditions will be subject to a review period of 12 months.

1. [1] Three allegations were made against Ms Mak in the Letter of Referral. At the hearing the parties jointly sought and we agreed to amend each allegation to delete the words 'including a contravention by the practitioner of a condition to which the practitioner's registration was subject.' Further amendments to allegations 2 and 3 resulted in the reference to 'section 5(b)(i) of the National Law' being deleted and replaced with 'section 5 of the National Law'. In Allegation 3 a reference to 'Ms Owen' was deleted and replaced with 'Ms Mak'