Pharmacy Board of Australia v Rest (Review & Regulation) [2023] VCAT 1397

The Tribunal notes that on 12 January 2023, the Tribunal made the following order:

Under section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), VCAT directs that no person other than a party to the proceeding or their legal representatives may inspect the VCAT file.

1. Between on or about 1 February 2019 and on or about 5 August 2019, Park Rest engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the Health Practitioner National Law (Victoria) Act 2009 (Vic), in that he inappropriately dispensed, or authorised to be dispensed Schedule 8 medications without a prescription when he knew or ought to have known that the supply was inappropriate.
2. Between in or about January 2019 and on or about 2 October 2019, Park Rest engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the Health Practitioner National Law (Victoria) Act 2009 (Vic), in that he failed to maintain the integrity of the Schedule 8 Drug Register at Ramsay Pharmacy Wendouree Shop 101.
3. Between on or about 25 May 2020 and on or about 1 June 2020, Park Rest engaged in unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the Health Practitioner National Law (Victoria) Act 2009 (Vic), in that Park Rest failed to comply with conditions imposed on his registration by the Pharmacy Board of Australia.
4. On or about 4 June 2020, Park Rest engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the Health Practitioner National Law (Victoria) Act 2009 (Vic), in that, Park Rest supplied a Schedule 4 medication without prescription.
5. Between on or about 26 November 2018 and on or about 4 June 2020, Park Rest engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the Health Practitioner National Law (Victoria) Act 2009 (Vic), in that Mr Rest's knowledge, understanding and compliance with the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Drugs, Poisons and Controlled Substances Regulations was substantially below the standard reasonably expected of a registered pharmacist.

Pursuant to the Health Practitioner National Law (Victoria) Act 2009 (Vic), the Tribunal orders:

1. Under section 196(2)(a) of the Health Practitioner National Law (Victoria) Act 2009 (Vic), Park Rest is reprimanded.
2. Under section 196(2)(d) of the Health Practitioner National Law (Victoria) Act 2009 (Vic), Park Rest's registration as a pharmacist is suspended for a period of two months from 20 January 2024.
3. Under section 196(2)(b) of the Health Practitioner National Law (Victoria) Act 2009 (Vic), the following conditions are imposed on Park Rest's registration as a health practitioner from the date of this order:

1. Prior to returning to practise, the Practitioner is to undertake and successfully complete a program of education (the Education), approved by the Pharmacy Board of Australia (Board), including a reflective practise report, in relation to:
   1. Maintenance of drug registers in pharmacy; and

b. Legislative compliance in pharmacy practise.

1. The Education shall take the form of one on one education:

1. The Practitioner must ensure the Education consists of a minimum of 3 hours; 2. Within 28 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN11): 1. nominate a person(s) to be approved by the Board to act as educator; 2. provide acknowledgement that Ahpra will obtain a report from the approved educator at the conclusion of the education;

1. The Practitioner must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and by an education plan outlining the form the education will take and how the topics of the education will be addressed.
2. The Practitioner must complete the Education within 6 months of the Board's approval of the education.
3. Within 28 days of the completion of the Education, the Practitioner is to provide to Ahpra:
   1. Evidence of successful completion of the Education; and
   2. 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 practise.

1. Upon returning to practise, the Practitioner must be mentored by another registered health practitioner in relation to the maintenance of drug registers and legislative compliance in pharmacy practise. 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.
2. The mentoring must comprise a minimum of 6 sessions with each session being of 1 hour duration occurring over a 12 month period.
3. At least 28 days prior to the Practitioner's return to practise, 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.
4. At least 28 days prior to the Practitioner's return to practise, 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:
   1. At the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
   2. whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner's conduct or professional performance, and
   3. when otherwise requested by Ahpra or the Board.
5. 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.
6. Within 28 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.

1. The Practitioner must not practise as Pharmacist in Charge while subject to mentoring conditions.
2. At least 28 days prior to the Practitioner's return to practise, the Practitioner must provide to Ahpra on the approved form (HP7), acknowledgement that Ahpra may:
   1. Seek reports from the Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each place of practice on at least a monthly basis or as otherwise required.
   2. Request and access from the senior person at each place of practise copies of rosters, pay slips, or the equivalent.
   3. Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
3. Within 28 days of the Practitioner's intended return to practise, the Practitioner must provide to Ahpra, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they are aware Ahpra will seek reports from them.

1. For the purposes of these conditions, 'practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a pharmacist in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a pharmacist in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the pharmaceutical industry.
2. Within 21 days notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The practitioner will be required to provide the same form:
   1. within seven days of the commencement of practice at each subsequent place of practice, and
   2. within seven days of each and every notice of any subsequent alteration of these conditions.
3. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

1. The review period of these conditions is 12 months.

Mr S Dawson of Counsel instructed by Ms E Thomas, solicitor, Minter Ellison Lawyers, and Mr D Andrews, solicitor, from the Australian Health Practitioner Regulation Agency.

1. The Pharmacy Board of Australia ('the Board') has referred to the Tribunal allegations about the respondent pharmacist, Mr Park Rest ('Mr Rest' or 'the respondent'), under section 193 of the Health Practitioner National Law (Victoria) Act 2009 (Vic) (the National Law). The allegations are that Mr Rest inappropriately dispensed Schedule 8 medications without a prescription, failed to maintain the integrity of the Schedule 8 drug register, failed to comply with conditions imposed on his registration, supplied a Schedule 4 medication without a prescription and that his knowledge, understanding and compliance with the relevant legislation and regulations were substantially below the standard reasonably expected of a registered pharmacist.
2. The parties agreed on the findings of fact of the allegations, the characterisation of the conduct and the appropriate determination. Upon consideration of the evidence as contained in the Tribunal Book, the oral and written submissions of the parties, the Tribunal finds that the facts alleged in Allegations 1 to 5 and the particulars to those Allegations are proven. The Tribunal finds that the proven conduct described in Allegations 1, 2, 4 and 5 are each, when considered separately, professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct contained in section 5 of the National Law. The proven conduct described in Allegation 3 is unprofessional conduct within the meaning of the definition of unprofessional conduct contained in section 5 of the National Law.
3. The Tribunal is satisfied that the appropriate determination in this matter is that Mr Rest is reprimanded, his registration as a Pharmacist is suspended for a period of two months from 20 January 2024 and conditions are imposed on his registration in similar terms as proposed by the parties, with one important amendment.

1. Following a notification by the Department of Health & Human Services (DHHS) to Ahpra on 17 April 2020, the Board decided on 26 April 2020 to commence an investigation of the notification.
2. A later confidential notification regarding the supply of a Schedule 4 medication without prescription was made to Ahpra on 4 June 2020, which the Board decided to investigate on 27 June 2020.
3. A self-notification by the Board regarding non-compliance with conditions on registration was made on 29 July 2020, which the Board decided to investigate on the same day.
4. On 3 August 2020, the Board wrote to Mr Rest to advise that it proposed to take immediate action to suspend his registration as a pharmacist. Mr Rest was provided with relevant information and an opportunity to respond to the proposed suspension.
5. On 12 August 2020, the Board decided not to take immediate action against Mr Rest while the matter was investigated and determined. The conditions on his registration remained in place.
6. On 9 December 2022, the Board made a referral to the Tribunal regarding Mr Rest and attached a Notice of Allegations ('the NOA').
7. On about 4 September 2023, pursuant to directions made by the Tribunal, the parties filed with the Tribunal a joint electronic Tribunal Book, including an Agreed Statement of Facts, Findings and Proposed Determinations, dated 4 September 2023 ('the ASFFD'), and an Amended Notice of Allegations ('the ANOA'). [1]
8. On 24 October 2023, the Board filed an outline of submissions and a list of authorities.
9. The matter came on for hearing before the Tribunal by videoconference on 15 November 2023.
10. The Board relied upon the ASFFD and the contents of the Tribunal Book, including, a transcript of an Ahpra interview with Mr Rest, the dispensing records, drug register and supply records from Mr Rest's pharmacies, the notification from the DHHS, an expert report from Ms Leonie Frick, pharmacist, the ANOA and a written submission from Mr Rest, dated 15 March 2023.
11. Mr Rest did not give evidence. He relied upon the ASFFD and the material in the Tribunal Book.
12. At the end of the hearing, the Tribunal reserved its decision. The following are the Tribunal's reasons.

1. Mr Rest completed a Bachelor of Pharmacy at Monash University in 2005. He was first registered with the Board on 20 June 2006.
2. From 26 November 2018, Mr Rest was employed as a pharmacist with Ramsay Health in Wendouree. The licensee of the pharmacy, and later a second pharmacy in the same shopping complex at Wendouree (the Ramsay Pharmacies), was a Mr Nigel McFaddin. Mr McFaddin may have also had some ownership interest in the Ramsay Pharmacies.
3. Mr Rest commenced work at shop 73 at Wendouree. From January 2019, he worked at shop 101 Wendouree, and was also the pharmacy manager at shop 73. In February 2019, Ramsay Health obtained a contract to supply dose administration aids (DAAs) to ten residential age care facilities (RACFs) around Ballarat. This work was allocated to shop 101 at Wendouree.
4. Mr Rest was not trained in the pharmacy software system used at the Ramsay Pharmacies. The contract with the residential age care facilities involved the preparation of weekly medication packs for 450 aged care residents. No additional resources were provided for this substantial increase in the workload of the Ramsay Pharmacies. Mr Rest had no previous experience in supplying medication to aged care facilities.
5. The Board's submissions state that the supply of the medication to the RACFs was organised as follows:

(a) A medical practitioner would visit a patient in the RACF, and record on the patient's medical chart any medications required, including any Schedule 8 poisons;

(b) A copy of the medical chart was sent by the RACF to the pharmacy via fax or email, so that the pharmacy could update the patient's DAA to include the medication or otherwise supply the requested medication to the RACF patient;

(c) Based on the faxed patient medical chart or request from the RACF, Shop 101 would dispense and supply the requested Schedule 8 poison;

(d) Where the medical chart requested a Schedule 8 poison be dispensed, the pharmacy sent a request for the corresponding prescription (script) to the rooms or clinic of the prescribing medical practitioner, after the Schedule 8 poison had already been supplied by Shop 101;

(e) The prescriber would then issue a script, which would be collected by a pharmacy driver. The script (often retrospectively issued) would be used by Shop 101 to authorise the original dispensing of the Schedule 8 poison in the patient's DAA.

1. This process was also used by the previous supplier to the RACFs. A prescription is required for the lawful supply of Schedule 8 medications by the pharmacy to residents of the RACFs.
2. Mr Rest regularly dispensed or authorised to be dispensed Schedule 8 medications by DAAs based on medical charts to residents of the RACFs, without a prescription or verbal authorisation from the doctor.
3. In operating the drug register at shop 101, Mr Rest:
   1. Was responsible for maintaining the integrity of the drug register by accurately recording the balance of medicines stored in the Schedule 8 drug safe and ensuring drug register security was not compromised;
   2. Deferred recording dispensing of a medication until he had received the prescription;
   3. Did not update the drug register in a timely manner when Schedule 8 medications were received;
   4. Provided his own password to an intern pharmacist for the drug register;
   5. Failed to accurately record Schedule 8 medication transactions in the drug register.
4. On 2 October 2019, Mr Rest was dismissed from his employment with the Ramsay Pharmacies. On 14 January 2020, Mr Rest commenced employment as a pharmacist with Chemist Warehouse (the Chemist Warehouse Pharmacy).
5. On 21 May 2020, the Immediate Action Committee of the Board imposed conditions on Mr Rest's registration. These conditions included a requirement to only access Schedule 8 medications under the direct supervision of a registered Pharmacist approved by the Board. On 23 May 2020, Mr Rest wrote to the Board nominating such a supervisor. The Board did not approve this supervisor.
6. Between 25 May 2020 and 8 June 2020, Mr Rest dispensed Schedule 8 medications on nine occasions without the supervision of a Board approved supervisor. The documents appear to indicate that another Pharmacist did supervise the dispensing of the medications on each occasion, but they were not Board approved for the purpose of the condition on Mr Rest's registration.
7. On 4 June 2020, a colleague at Chemist Warehouse approached Mr Rest about potential medication for her husband, who was suffering from pain and difficulty sleeping due to a shoulder injury. Mr Rest supplied the colleague with ten tablets of Comfarol Forte without a prescription. He did not establish that the medication was suitable for the colleague's husband, warn the colleague regarding the correct dose or potential side effects of the medication and did not label the medication. Comfarol Corte is a Schedule 4 medication.
8. Mr Rest has admitted the conduct alleged and has indicated his reasons for particular conduct. His justifications will be discussed later in these reasons.

1. Section 193 of the National Law relevantly provides:

(1) Subject to section 193A, a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if -

(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or

(b) for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal

(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide -

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(b) one or more of the following -

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has behaved in a way that constitutes professional misconduct;

...

(2) If a responsible tribunal makes a decision referred to in subsection (1) (b), the tribunal may decide to do one or more of the following -

(a) caution or reprimand the practitioner;

(b) impose a condition on the practitioner's registration, including, for example -

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons,

(c) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

(e) cancel the practitioner's registration.

(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.

(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person, either permanently or for a stated period, from doing either or both of the following -

(i) providing any health service or a specified health service;

(ii) using any title or a specified title; or

(c) impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the person.

1. VCAT is a responsible tribunal for the purpose of the National Law.
2. Section 5 of the National Law provides that professional misconduct of a registered 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. Section 5 of the National Law also provides that unprofessional conduct means:

... 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, and includes -

(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and

(b) a contravention by the practitioner of -

(i) a condition to which the practitioner's registration was subject; or

(ii) an undertaking given by the practitioner to the National Board that registers the practitioner; and

...

1. In the circumstances where serious allegations are made against a party, the Briginshaw standard applies to the state of satisfaction required in making adverse findings regarding these allegations. In Briginshaw v Briginshaw (1938) CLR 336 at 362, Dixon J discussed the principle as follows:

The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. The principle goes to the clarity and quality of the evidence and would require excluding or giving little weight to hearsay evidence, conclusions of fact and opinion without basis, as they are inexact proofs, indefinite testimony and/or indirect inferences. The evidence of the serious allegations against Mr Rest is considered in light of this principle.
2. The relevant principles for a tribunal to apply in circumstances when there is an agreed statement of facts and findings, as in the present case, are that the tribunal must be satisfied itself that the findings are appropriate and no agreement between the regulator and the practitioner can supplant that duty.[2] However, any agreement between the parties is a highly relevant matter.[3] Whether a person is legally represented may be an important consideration.[4]

1. Allegation 1 contained in the ANOA was as follows (omitting the Particulars to the Allegation):

That Mr Rest engaged in:

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

and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,

in that, between on or about 1 February 2019 and on or about 5 August 2019, he inappropriately dispensed, or authorised to be dispensed Schedule 8 medications without a prescription when he knew or ought to have known that the supply was inappropriate.

1. In relation to Allegation 1, the Board relied upon the ASFFD, the transcript of the Ahpra interview with Mr Rest, the dispensing records, the drug register and the supply records from the Ramsay Pharmacies, the DDHS notification to Ahpra and the report of Ms Frick. The evidence relied upon by the Board was internally consistent and credible.
2. Mr Rest admitted the conduct alleged in Allegation 1 and the particulars to that allegation at [5.1] of the ASFFD and in his submissions. He did not give evidence at the hearing.
3. On the basis of the evidence before it, the Tribunal is comfortably satisfied that Mr Rest has engaged in the conduct alleged in Allegation 1 of the ANOA and as particularised, being that between on or about 1 February 2019 and on or about 5 August 2019, Mr Rest inappropriately dispensed, or authorised to be dispensed, Schedule 8 poisons without a prescription when he knew or ought to have known that the supply was inappropriate.
4. Allegation 2 contained in the ANOA was as follows (omitting the Particulars to the Allegation):

That Mr Rest engaged in:

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

and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,

in that, between in or about January 2019 and on or about 2 October 2019, he failed to maintain the integrity of the Schedule 8 Drug Register at Ramsay Pharmacy Wendouree Shop 101.

1. In relation to Allegation 2, the Board relied upon the ASFFD, the transcript of the Ahpra interview with Mr Rest, the dispensing records, the drug register and the supply records from the Ramsay Pharmacies, the DDHS notification to Ahpra and the report of Ms Frick. The evidence relied upon by the Board was internally consistent and credible.
2. Mr Rest admitted the conduct alleged in Allegation 2 and its particulars at [5.2] of the ASFFD and in his submissions.
3. On the basis of the evidence before it, the Tribunal is comfortably satisfied that Mr Rest engaged in the conduct alleged in Allegation 2 of the ANOA, and the particulars to that Allegation, being that between in or about January 2019 and on or about 2 October 2019, Mr Rest failed to maintain the integrity of the Schedule 8 Drug Register at the Ramsay Pharmacy Wendouree Shop 101.
4. Allegation 3 contained in the ANOA was as follows (omitting the Particulars to the Allegation):

That Mr Rest engaged in:

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

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,

in that, between on or about 25 May 2020 and on or about 1 June 2020, Mr Rest failed to comply with conditions imposed on his registration by the Board.

1. In relation to Allegation 3, the Board relied upon the ASFFD, the conditions on Mr Rest's registration, the transcripts of the Ahpra interview with Mr Rest, the dispensing records and the drug register from Chemist Warehouse Pharmacy, the notification to Ahpra and the report of Ms Frick. The evidence relied upon by the Board was internally consistent and credible.
2. Mr Rest admitted the conduct alleged in Allegation 3 and its particulars at [5.3] of the ASFFD and in his submissions. He did not give evidence at the hearing.
3. On the basis of the evidence before it, the Tribunal is comfortably satisfied that Mr Rest has engaged in the conduct alleged in Allegation 3 of the ANOA, and the particulars to that Allegation, being that between on or about 25 May 2020 and on or about 1 June 2020, Mr Rest failed to comply with conditions imposed on his registration by the Board requiring approved supervision of Mr Rest when dispensing Schedule 8 medications.
4. Allegation 4 contained in the ANOA was as follows (omitting the Particulars to the Allegation):

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

and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,

in that on or about 4 June 2020, Mr Rest supplied a Schedule 4 medication without prescription.

1. In relation to Allegation 4, the Board relied upon the ASFFD, the transcripts of the Ahpra interview with Mr Rest, Mr Rest's admission of the conduct to his employer, reports of the conduct by two staff members, CCTV footage and the report of Ms Frick. The evidence relied upon by the Board was internally consistent and credible.
2. Mr Rest admitted the conduct alleged in Allegation 4 at [5.4] of the ASFFD and in his oral submissions.
3. The Tribunal is comfortably satisfied that Mr Rest has engaged in the conduct alleged in Allegation 4 of the ANOA and the particulars to that Allegation, being that on or about 4 June 2020, Mr Rest supplied a Schedule 4 medication without prescription.
4. Allegation 5 contained in the ANOA was as follows (omitting the Particulars to the Allegation):

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

and/or

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law,

and/or

(c) unsatisfactory professional performance within the meaning of unsatisfactory professional performance in section 5 of the National Law;

in that, between on or about 26 November 2018 and on or about 4 June 2020, Mr Rest's knowledge, understanding and compliance with the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Drugs, Poisons and Controlled Substances Regulations was substantially below the standard reasonably expected of a registered pharmacist.

1. In relation to Allegation 5, the Board relied upon the ASFFD, the transcripts of the Ahpra interview with Mr Rest and the evidence relied upon for each of Allegations 1 to 4 above. The evidence relied upon by the Board was internally consistent and credible.
2. Mr Rest admitted the conduct alleged in Allegation 5 at [5.5] of the ASFFD and in his submissions.
3. The Tribunal is comfortably satisfied that Mr Rest has engaged in the conduct alleged in Allegation 5 of the ANOA and the particulars to that Allegation, being that between on or about 26 November 2018 and on or about 4 June 2020, Mr Rest's knowledge, understanding and compliance with the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) was substantially below the standard reasonably expected of a registered pharmacist.
4. The ASFFD contained a joint position of the parties as to the correct characterisation of the conduct alleged in Allegations 1 to 5, which was different to the characterisation proposed by the Board in the ANOA. The ASFFD provided that the conduct described in Allegations 1, 2 and 5, when considered separately, was in each case professional misconduct within the meaning of paragraphs (a) and (b) of the definition of professional misconduct in section 5 of the National Law. The ASFFD provided that the conduct described in Allegations 3 was unprofessional conduct within the meaning of unprofessional conduct in section 5 of the National Law. It also provided that the conduct described in Allegation 4 was professional misconduct with the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the National Law.
5. As to the appropriate characterisation of the proven conduct, the Board submitted that the proven conduct under Allegation 1 should be characterised as professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (b) of section 5 of the National Law. Which is that under paragraph (a), the conduct was unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of the equivalent level of training or experience, and under paragraph (b), more than one instance of unprofessional conduct that, when considered together, amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of the equivalent level of training or experience.
6. At [6.2(a)] of the ASFFD and his oral submissions, Mr Rest accepted that the proven conduct under Allegation 1 is properly characterised as professional misconduct under the definitions in paragraphs (a) and (b) in section 5 of the National Law.
7. The Board submitted that the agreed characterisation of the proven conduct under Allegation 1 was correct for the following reasons:
   1. The gravity of the conduct is apparent. Schedule 8 medications are onerously regulated because of their potential to cause serious harm through misuse or abuse. Dispensing such medications without authorisation is fundamentally inconsistent with the responsibilities of a pharmacist. The gravity is heightened as the conduct occurred on many occasions, over a prolonged period, when Mr Rest knew it was unlawful;
   2. The seriousness of the conduct is underlined by the strict legal requirements governing the supply of such medication. The conduct breached regulation 48 of the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic), the Board's Code of Conduct, the Board's Dispensing Guidelines, the Code of Ethics and the Victorian Pharmacy Authority's Guidelines;
   3. The regulatory regimes are to minimise risks. The regimes rely upon pharmacists to lawfully dispense Schedule 8 medications and to properly record transactions.
   4. Ms Frick's report stated that Mr Rest's ... actions clearly indicate a significant departure from what should have been done to comply with his legal obligations.
8. Relevantly to the characterisation of the proven conduct described in Allegation 1, Mr Rest submitted the following matters:
   1. The problems arose with the system he had inherited and the new contract to supply DAAs. Mr Rest had not negotiated this contract or managed the change from the previous supplier to Ramsay Pharmacies;
   2. Most of the supplies, approximately 55, were made in February and March 2019, in the initial months of the contract. After that time, there were only 12 supplies in breach of the regulatory requirements. Mr Rest stated that under his management the situation had improved;
   3. There had been a lack of expectation of what would occur when the contract to supply the DAAs commenced. There were not enough Pharmacists for the operation and they did not have the appropriate number of prescriptions;
   4. It would have been potentially lawful for Mr Rest to have supplied the Schedule 8 medications to the RACFs as imprest stock, rather than to the residents, under regulation 48(1)(e) of the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic);
   5. They were forced to supply medication on the basis of charts and wait for prescriptions. A number of prescriptions were dispensed in contravention of the Act and Regulations.
9. The Tribunal is satisfied that the proven conduct under Allegation 1 was serious, as it related to the unauthorised dispensing of Schedule 8 medications. The conduct was in breach of the regulatory regime in place for the handling of these medication, which is in place to protect the public. Despite the fact that Mr Rest believes he was placed in a difficult position regarding the contract with the RACFs and the need for continuity of medication for residents, including residents in palliative care, and that it would have been potentially lawful for him to supply the medications to RACFs rather than to residents, the Tribunal considers this conduct to be serious. The Tribunal is satisfied that the proven conduct under Allegation 1 should be characterised as professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) of section 5 of the National Law. The Tribunal does not consider it necessary to consider whether to also characterise the proven conduct under paragraph (b) of the definition.
10. The Board submitted that the proven conduct under Allegation 2 should be characterised as professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (b) of section 5 of the National Law.
11. At [6.2(b)] of the ASFFD and in his submissions, Mr Rest accepted that the proven conduct under Allegation 2 is properly characterised as professional misconduct under the definition of professional misconduct in paragraphs (a) and (b) in section 5 of the National Law.
12. The Board submitted that the agreed characterisation of the proven conduct was correct for the following reasons:

a) The deficiencies in recordkeeping were extensive and were over a prolonged period. A failure to keep accurate and up to date balances and transaction records for Schedule 8 medications undermines the regulatory regime and can result in medication being misappropriated or diverted; > > b) The proven conduct in Allegation 2, breached regulation 48 of the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic), the Board's Code of Conduct, the Board's Dispensing Guidelines, the Code of Ethics and the Victorian Pharmacy Authority's Guidelines; > > c) Ms Frick's report stated her concerns about the standard of Mr Rest's record keeping, including his failure to maintain an accurate balance of Schedule 8 medications, deleting and modifying records, failing to enter received stock in the drug register and making stock adjustments.

13. Relevantly to the characterisation of the proven conduct described in Allegation 2, Mr Rest submitted the following matters:

a) He repeated the matters referred to at [61] above; > > b) Mr Rest stated that he was not initially in charge. Another pharmacist had supplied on the basis of the charts and not made entries into the register; > > c) He did fail to reconcile the register correctly; > > d) Mr Rest was aware it was not lawful to provide his password for the drug register to an intern pharmacist. He was not aware that a new password could be created for the intern; > > e) He had written in his monthly reports to Ramsay management that the Pharmacy was not compliant with Ramsay policies regarding the drug register. Ramsay management was not helpful regarding this issue.

14. The Tribunal is satisfied that the proven conduct under Allegation 2 was serious as it related to a failure over a period of time to maintain accurate records of significant medications. The conduct was in breach of the regulatory regime in place for the recording of these medications, which is for the protection of the public. The Tribunal considers this conduct to be serious. The Tribunal is satisfied that the proven conduct under Allegation 2 should be characterised as professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) of section 5 of the National Law. The Tribunal does not consider it necessary to consider whether to also characterise the conduct under paragraph (b) of the definition.
15. The Board submitted that the proven conduct under Allegation 3 should be characterised as unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law.
16. At [6.2(c)] of the ASFFD and in his submissions, Mr Rest accepted that the proven conduct under Allegation 3 is properly characterised as unprofessional conduct under the definition in section 5 of the National Law.
17. The Board submitted that the agreed characterisation of the proven conduct in Allegation 3 was correct for the following reasons:

a) The contravention by a health practitioner of a condition on their registration is a defined form of unprofessional conduct under sub-paragraph (b)(i) of the definition of unprofessional conduct in section 5 of the National Law; > > b) While there is no evidence of any adverse events arising from Mr Rest's breach of the condition on his registration, the compliance with conditions is fundamental to the proper functioning of the regulatory regime. The Tribunal has previously stated:

Conditions are imposed in order to ensure the safety of patients. Failure to comply with conditions potentially places patients at risk.[5]

1. Relevantly to the characterisation of the proven conduct described in Allegation 3, Mr Rest submitted the following matters:

a) Mr Rest nominated a supervisor for the purpose of the condition on his registration. He was supervised on all occasions when he dispensed medication. However the supervisor had not been approved by the Board; > > b) Mr Rest told the Tribunal that as he read the condition on his registration, as soon as the Board received his nomination of a supervisor, he was supervised for the purpose of the condition on his registration.

2. The Tribunal is satisfied that the proven conduct under Allegation 3 was significant as it involved the contravention of a condition which had been specifically placed on Mr Rest's registration in relation to the dispensing of potentially dangerous medications. The proven conduct met the definition of unprofessional conduct in section 5 of the National Law. The Tribunal is satisfied that the proven conduct under Allegation 3 should be characterised as unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law.
3. The Board submitted that the proven conduct under Allegation 4 should be characterised as professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) of section 5 of the National Law.
4. At [6.2(d)] of the ASFFD and his oral submissions, Mr Rest accepted that the proven conduct under Allegation 4 is properly characterised as professional misconduct within the meaning of the definition in paragraph (a) in section 5 of the National Law.
5. The Board submitted that the agreed characterisation of the proven conduct was correct for the following reasons:

a) The supply of a Schedule 4 medication without a prescription was inappropriate, contrary to a pharmacist's fundamental obligations and risked harm to the person the medication was eventually supplied to. This is particularly so when Mr Rest omitted to provide counselling or direction about the proper use of the medication or label the medication with instructions for use; > > b) The proven conduct described in Allegation 4, breached regulation 47 of the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic), the Board's Code of Conduct, the Board's Dispensing Guidelines, and the Code of Ethics; > > c) Ms Frick's report stated that the supply was likely to be unlawful and Mr Rest should have been more cautious or declined to provide the medication.

6. Relevantly to the characterisation of the proven conduct described in Allegation 4, Mr Rest submitted the following:

a) He supplied the medication believing that he could do so under the Emergency Provision Act[6], which he believed allowed a pharmacist to supply a Schedule 4 medication during the COVID-19 pandemic. He admits that the supply was not compliant with the Emergency Provision Act. > > b) He accepts that it was his fault that he did not counsel the patient or label the box. Mr Rest expected the technician to bring him the medication. Instead the technician reported him.

7. The Tribunal is satisfied that the proven conduct under Allegation 4 was serious as it related to dispensing a Schedule 4 medication without a prescription or other proper authorisation. The conduct was in breach of the regulatory regime in place for dispensing these medications, which is for the protection of the public. The Tribunal considers this conduct to be serious. The Tribunal is satisfied that the proven conduct under Allegation 4 should be characterised as professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) of section 5 of the National Law.
8. The Board submitted that the proven conduct under Allegation 5 should be characterised as professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (b) of section 5 of the National Law.
9. At [6.2(e)] of the ASFFD and his oral submissions, Mr Rest accepted that the proven conduct under Allegation 5 is properly characterised as professional misconduct under the definitions in paragraphs (a) and (b) in section 5 of the National Law.
10. The Board submitted that the agreed characterisation of the proven conduct was correct for the following reasons:

a) The nature and extent of the non-compliance is significant as shown by the underlying conduct specified in Allegations 1 to 4; > > b) The proven conduct demonstrates a significant lack of understanding and significant misunderstandings by Mr Rest of the proper and safe handling of Schedule 4 and Schedule 8 medications; > > c) Ms Frick's report stated as follows:

There was much evidence provided that overall demonstrated a significant lack of knowledge of legal requirements for supply of medicines as a pharmacist. In particular there was much evidence that centred around supply, storage and destruction of S8 poisons. It seems unusual that such common principals of pharmacy practice were not known by PR. This is irrespective of being unfamiliar with residential care facilities. ... All evidence provide indicated a significant issue with record keeping and the follow up of records where owing prescriptions were provided. Overall the evidence makes clear that PR's practice in so many respects deviated substantially from acceptable pharmacy practice.

d) The proven conduct in Allegation 5, breached the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic), the Board's Code of Conduct, the Board's Dispensing Guidelines, the Code of Ethics and the Victorian Pharmacy Authority's Guidelines.

1. Relevantly to the characterisation of the proven conduct described in Allegation 5, Mr Rest submitted the following matters:

a) He was not aware that he could have lawfully provided Schedule 8 medications to the aged care facilities. None of the other pharmacists appeared to have this knowledge either; > > b) Most of the problems Mr Rest had would have been solved if he had directly supplied Schedule 8 medications to the aged care facilities rather than to the residents.

2. The Tribunal is satisfied that the proven conduct under Allegation 5 was serious, as it related to a failure over a period of time to comply with requirements not to issue Schedule 4 and Schedule 8 medications without a prescription or other authority, a failure to maintain accurate records of significant medications and a failure to comply with a condition specifically placed on his registration by the Board. The conduct was in breach of the regulatory regime in place for the recording of these medications. The Tribunal considers this conduct to be serious. The Tribunal is satisfied that the proven conduct under Allegation 5 should be characterised as professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) of section 5 of the National Law. The Tribunal does not consider it necessary to consider whether to also characterise the conduct under paragraph (b) of the definition.
3. Therefore, the proven conduct described in each of Allegations 1, 2, 4 and 5, when considered separately, is professional misconduct under paragraph (a) of the definition of professional misconduct in section 5 of the National Law. The proven conduct in Allegation 3 is unprofessional conduct under the definition of unprofessional conduct in section 5 of the National Law.

1. The parties jointly seek the imposition on Mr Rest of a reprimand, suspension of his registration for a period of three months and the imposition of conditions on Mr Rest's registration as a pharmacist. The conditions deal with education, mentoring and limitations on practice.
2. The parties have proposed a global determination in relation to the proven Allegations. Generally, global penalties should be avoided in disciplinary proceedings, but may be utilised where the charges are 'inextricably interwoven'.[7]
3. In the present case, the Tribunal finds that the proven conduct is constituted by a course of behaviour in relation to failing, over a period of time, to comply with requirements not to issue Schedule 4 and Schedule 8 medications without a prescription or other authority, failing to maintain accurate records of significant medications and failing to comply with a condition specifically placed on his registration by the Board for approved supervision when dispensing Schedule 8 medications. The Tribunal is satisfied that the facts of the case are interwoven to the extent that a global determination should be applied.
4. The principles to be applied by the Tribunal in considering the appropriate determination are set out in Medical Board of Australia v Griffiths[8], as follows:
   1. The purpose of determinations is protective not punitive. The objective is primarily the protection of the public and the maintenance of professional standards in the eyes of the public.
   2. With that protective focus in mind, the Tribunal considers a range of factors including:
      • the nature and seriousness of the conduct;
      • whether the practitioner pleaded guilty or other evidence of contrition or remorse;
      • whether there is a need for specific deterrence (deterring the particular practitioner from further inappropriate conduct) or general deterrence (deterring other practitioners from engaging in similar conduct);
      • whether there have been other disciplinary findings before or since the conduct in question;
      • evidence of character;
      • evidence of rehabilitation;
      • any delay from the time the investigation started to the end of the Tribunal hearing;
      • other mitigating factors such as medical or psychological evidence, family or other personal circumstances.
   3. Some of the above factors will overlap. Specific deterrence, for example, requires consideration of the likelihood of the practitioner re-offending, whether because of:
      • a lack of insight into what occurred;
      • a lack of remorse about what occurred;
      • a history of offending conduct as opposed to a one-off explicable departure from otherwise high standards of conduct; or
      • other matters indicating either that a particular sanction is required to deter the practitioner from re-offending or, conversely, that rehabilitation has taken place.
   4. As observed by the Tribunal in Medical Practitioners Board of Victoria v Grolaux [No. 2]:

In context, this "insight" might be reflected in a variety of ways, such as an understanding of the nature of the conduct, an acceptance that the conduct was seriously wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or the willingness to take measures to identify risk factors and to avoid similar behaviour.

1. General deterrence requires consideration of whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and thereby deter them from the same conduct, in the interests of maintaining professional standards and public confidence in the profession.
2. The task of the Tribunal in disciplinary proceedings is described by Cosgrove J in Dickens v Law Society:

There is high authority for the proposition that the powers given to the disciplinary committee to discipline a practitioner are entirely protective in character. No element of punishment is involved... But to say that is merely to say that the powers are to be exercised for the purpose of, and in a manner seen likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and protect, not only the future of the profession, but also protect its clients from harm.

With this object in mind, the committee is required to look to the future. Even if the practitioner's misconduct be relatively slight, he may yet be struck off, if his capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the profession. On the other hand, conduct which is itself more grave in nature, may not warrant striking off, if it is seen as a temporary and explicable departure from the practitioner's own high standards... The order which the committee is called upon to make is that order which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct.

1. Every case will be different. The nature of the offending conduct, the particular circumstances of the practitioner, the context of the offending and its duration, and the risk of repetition are all factors which will rarely be identical in any two cases.
2. Penalties imposed in other cases involving similar or analogous conduct will be a useful guide to proportionality, and to ensuring that the penalty imposed in the particular case is not outside the range of penalties imposed in the relevant area. However, principles of parity should not override the need to consider the unique facts and circumstances of the case at hand.

1. The Tribunal considered the relevant factors as follows.

1. As discussed above, the conduct proven under Allegation 1 includes conduct that involved Mr Rest inappropriately dispensing Schedule 8 medications without a prescription to residents of aged facilities. The proven conduct was in breach of the regulatory regime in place for the handling of these medication.
2. Mr Rest submitted that he was placed in a difficult position regarding his employer's contract with the age care facilities, due to the need for continuity of medication for residents and particularly to residents in palliative care. The proven conduct was not in compliance with the Board's Code of Conduct and the Board's Guidelines for Dispensing Medicines. The Tribunal considers this conduct to be serious.
3. The conduct proven under Allegation 2 includes the failure by Mr Rest, over a period of time, to maintain accurate records of significant medications. The conduct was in breach of the regulatory regime in place for the recording of these medication. A failure to keep accurate and up to date balances and transaction records for Schedule 8 medications generally undermines the regulatory regime and can result in medication being more easily diverted, without a method of being able to track the correct location of the medication. The Tribunal considers this conduct to be serious.
4. An issue did arise in this matter about the nature of the conduct in Allegations 1 and 2 and the employer's contribution to the proven conduct. Mr Rest when he was employed at the Ramsay Pharmacies, had not previously worked with the software used for the recording of transactions of Schedule 8 medications, which included the drug register. He had also not previously worked in supplying medication to age care facilities, let alone supplying to ten age care facilities and 450 aged care residents each week. He did not receive any training while at the Ramsay Pharmacies in the use of the software or for the supplying of medications to aged care facilities.
5. Mr Rest had insufficient staff to undertake the work on the contract to supply the aged care facilities. The system in place when he commenced this work was not in compliance with the regulatory regime. The Board conceded that Mr Rest had inherited an inadequate system supplied by his employer. When concerns were raised with Ramsay's head office regarding what was occurring at the Ramsay Pharmacy, the concerns were rejected as Mr Rest was keeping the business running.[9] Mr Rest himself submitted, not under oath, that he advised Ramsay Health in monthly written reports that the Ramsay Pharmacies were not complying with Ramsay's Drug Register Policy.
6. Mr Rest, not under oath, told the Tribunal that the Ramsay Health's regional manager was not a Pharmacist and rarely visited the Ramsay Pharmacies at Wendouree. He also told the Tribunal that Mr Nigel McFadden was the owner and licensee of the two pharmacies at Wendouree. Mr McFadden visited the Ramsay Pharmacies at Wendouree on only one occasion while Mr Rest was employed at the Ramsay Pharmacies. Mr Rest told the Tribunal that he understood that Mr McFadden lived in New South Wales. Mr Rest was interviewed for the role by the area manager of Ramsay Health, not by Mr McFadden.
7. The Tribunal notes that at the relevant time, the Victorian Pharmacy Authority Guidelines provided that every owner, partner or director of a pharmacy business, if that pharmacist is not regularly and usually in charge of the Pharmacy, must make themselves sufficiently aware of the manner in which the pharmacy is being conducted and must intervene to ensure the Pharmacy is being conducted properly. They should ensure the procedures and policies of the pharmacy are being followed. The Victorian Pharmacy Authority Standards provided that the licensee of a Pharmacy shall provide appropriate management of the Pharmacy by ensuring all staff are suitably qualified and trained, ensuring there are enough suitably qualified and trained staff to support service demands and operate safely and effectively, ensure staff comply with professional and pharmacy obligations. The licensee is responsible for ensuring that records relating to pharmacy services are created, stored and retained in accordance with the relevant legislation and that records of Schedule 8 poisons are in accordance with legislation.
8. None of this in any way excuses Mr Rest's proven conduct in Allegations 1 and 2. It does however contribute to an understanding of the nature of the conduct. Mr Rest had his own independent professional obligations as a pharmacist. Mr Rest had the obligation, in circumstances where the systems in place created a significant risk of non-compliance with professional obligations, to take the appropriate actions to ensure the non-compliance did not occur or to remove himself from such a system. The Tribunal accepts that this may not have been easy for Mr Rest to do, either from an employee standpoint or due to concerns for the residents of the age care facilities who required ongoing medication. As we have stated above, the employer's role in the conduct does not excuse Mr Rest from his role in the proven conduct, however, the Tribunal will take it into account in considering the nature of Mr Rest's conduct.
9. The conduct proven under Allegation 3 involved the contravention of a condition which had been specifically placed on Mr Rest's registration in relation to the dispensing of potentially dangerous medication. Mr Rest's mistaken belief was that once he had lodged the details of his proposed supervisor with the Board, he was then able to be supervised by this person in the dispensing of Schedule 8 medication. This incorrect interpretation of the condition does not excuse his conduct. It was for Mr Rest to understand and comply with the condition on his registration.
10. The conduct proven under Allegation 4 related to dispensing a Schedule 4 medication without a prescription or other proper authorisation. The conduct was in breach of the regulatory regime in place for dispensing these medications. Mr Rest mistakenly believed that he was able to dispense the medication pursuant to the Emergency Provisions Act in place for the COVID-19 pandemic. He did not counsel the recipient of the medication regarding the side effects and appropriate dose, and did not label the medication. Although this was an isolated event, the Tribunal considers this conduct to be serious.
11. The conduct proven under Allegation 5 related to a failure over a period of time to comply with requirements not to issue Schedule 4 and Schedule 8 medications without a prescription or other authority, a failure to maintain accurate records of significant medications and a failure to comply with a condition specifically placed on his registration by the Board. The conduct was in breach of the regulatory regime in place for the recording of these medication. The Tribunal considers this conduct to be serious.

1. The Board submitted that the seriousness and extent of the professional misconduct means that general deterrence is important in making a determination in this case. It further submitted that Mr Rest dispensed Schedule 8 medications when he knew that he was contravening the lawful requirements of such supply. The conduct was repeated over a period of months. The Board accepted that there was no evidence to support a finding that Mr Rest was not well-intentioned or that any of the Schedule 8 medications were misappropriated or diverted, however, it is necessary for the determination to reflect the gravity of the conduct.
2. The Board referred the Tribunal to the decision in Pharmacy Board of Australia v Fanous [2019] VCAT 213 (Fanous) at [69] to [70], where the Tribunal found that it was necessary to impose a period of suspension on a pharmacist to ensure pharmacists and particularly employee pharmacists were aware that this type of conduct would not be tolerated. In that case, the Tribunal was mindful that the drugs could have found their way into the general community and been abused and misused. The Tribunal notes that the circumstances in Fanous were very different to the present case.
3. The Tribunal finds there is a need for general deterrence to be part of the determination consideration to deter other practitioners from engaging in such serious improper conduct. The determination must indicate to other pharmacists that they must comply with their professional obligations to supply, store and maintain medication and medication records, including not to inappropriately dispense Schedule 8 medications without a prescription, maintain the integrity of the Schedule 8 drug register, comply with any conditions imposed on their registration, not supply a Schedule 4 medication without a prescription and maintain their knowledge, understanding and compliance with the relevant legislation and regulations to the standard reasonably expected of a registered pharmacist. The determination needs to make clear the very significant adverse consequences of engaging in such conduct.
4. The Tribunal is satisfied that general deterrence and the maintenance of professional standards are significant factors in arriving at a determination in this case.

1. In deciding the need for specific deterrence in making the appropriate determination, issues such as the insight and remorse of the practitioner are relevant.
2. The Board submitted in relation to specific deterrence as follows:
   1. Mr Rest has been co-operative and forthcoming in his dealings with Ahpra and the Board;
   2. However, he has displayed a significant lack of knowledge and understanding of his professional responsibilities as a registered pharmacist. He has also knowingly contravened his legal and professional obligations;
   3. Mr Rest has shown insight into his conduct, but to properly further protect the public it is necessary to ensure he is deterred from repeating the conduct in future;
   4. The contraventions were repeated and only ceased after the DHHS investigation;
   5. There is no evidence that his motivations were not well intentioned.
3. Mr Rest submitted relevantly to specific deterrence as follows:
   1. Mr Rest has been employed as a Pharmacist in a retail role for a single employer for the last two years and eight months. He has been complying with the conditions imposed on his registration in this period;
   2. Mr Rest has not undertaken any formal education directed at the proven conduct, but he has undertaken self-education of what is required by reading the materials supplied in the Tribunal Book and references from those documents and extracts back to the regulations which apply;
   3. In relation to the proven conduct described in Allegations 1 and 2, he was placed by his employer in an existing system which did not comply with the regulatory regime. He was not initially in charge and another pharmacist had supplied medication under the same system;
   4. He had raised with Ramsay management in his monthly reports, the non-compliance with Ramsay policies regarding the drug register;
   5. Mr Rest did not receive any training in the software system at the Ramsay Pharmacies and had not worked with this system previously;
   6. He supplied his password to the pharmacist intern due to a lack of knowledge that the intern could have their own password;
   7. Mr Rest incorrectly believed that he could dispense Schedule 4 medications under the provisions of the Emergency Provisions Act;
   8. He had nominated a supervisor for the registration condition, being the condition requiring that he be under approved supervision to dispense Schedule 8 medications, and incorrectly believed that once he had nominated the supervisor he could dispense Schedule 8 medications under their supervision.
4. The Tribunal finds that Mr Rest's acceptance of the ASFFD with the admissions as to the conduct and his submission that he should spend time out of practice and undertake further education, are an indication of insight and remorse. The Tribunal also notes the concession of the Board that there could be no finding that Mr Rest's motivation was not well intentioned.
5. Although the circumstances in which Mr Rest was working are not an excuse for his conduct, the Tribunal will take these circumstances into account in assessing the need for specific deterrence and the likelihood of such conduct being repeated in the future.
6. The Tribunal is satisfied that specific deterrence and the protection of the public from Mr Rest are relevant factors in assessing the determination in this case.

Evidence of character and past disciplinary history

1. The Tribunal was not referred to any previous disciplinary proceedings against Mr Rest.
2. Mr Rest did not provide any references.

1. In the ASFFD and his written submissions in the Tribunal Book[10], Mr Rest has admitted the conduct alleged.

1. The delay in disciplinary proceedings being commenced and finalised has been recognised as a matter to be taken into account in determining an appropriate penalty. A delay may be a mitigating factor and is considered in the light of the rehabilitation of the person in the period and the fairness of such a delay on the person.[11] The Tribunal considers that it should take into account that Mr Rest had disciplinary matters hanging over his head for a period of about three and a half years.

1. The parties jointly propose a reprimand as part of the determination in this case. The Tribunal is satisfied that a reprimand is appropriate to denounce the conduct of Mr Rest.
2. The parties propose that Mr Rest's registration as a Pharmacist be suspended for a period of three months. The Tribunal notes that it should give appropriate weight to the parties joint position on the determination, however the Tribunal is not a rubber stamp and must reach its own conclusions as to the appropriate determination. The Tribunal considers that it is appropriate for the purpose of specific and general deterrence for a period of suspension of Mr Rest's registration to be imposed.
3. In taking into account all relevant matters, and particularly the need for the specific and general deterrence and the nature and circumstances of the conduct, the Tribunal considers that a period of suspension of two months is appropriate in this case. The Tribunal notes that it raised with the parties the possibility of a shorter period of suspension than was jointly proposed by the parties, and heard submissions on this issue.
4. The parties have also proposed that conditions be imposed on Mr Rest's registration for education, mentoring and limitation on practice. The Tribunal is satisfied that for the protection of the public, conditions should be imposed. However, the Tribunal in the circumstances of this case finds that it is not appropriate for Mr Rest to be able to choose between formal education and one on one education. The Tribunal is satisfied that one on one education is required in this case to ensure the protection of the public. The Tribunal will therefore impose conditions as proposed by the parties, save that proposed condition 2 will be deleted and condition 3 will be amended to require that the education takes the form of one on one education. The parties agreed that, to reduce the inconvenience to Mr Rest's current employer, a period of notice should be given prior to the commencement of the suspension of registration.

1. The Tribunal has therefore decided that the appropriate determination in this matter is to reprimand Mr Rest, suspend Mr Rest's registration for a period of two months from 20 January 2024 and impose conditions on his registration for education, mentoring and limitation on practice.

The allegations in respect of Park Rest (Mr Rest) referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Pharmacy Board of Australia (Board) pursuant to section 193(1)(a) of the Health Practitioner Regulation National Law (National Law) are:

Allegation 1 - Inappropriate Dispensing of Schedule 8 Medications

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

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, between on or about 1 February 2019 and on or about 5 August 2019, he inappropriately dispensed, or authorised to be dispensed Schedule 8 medications without a prescription when he knew or ought to have known that the supply was inappropriate.

(i) At all material times, Mr Rest was a registered pharmacist.

(ii) On 26 November 2018, Mr Rest was employed as the Pharmacy Manager at Ramsay Pharmacy Wendouree (Shop 73).

(iii ) In or about January 2019, Mr Rest commenced employment as the Pharmacy Manager at Ramsay Pharmacy Wendouree (Shop 101) and from or about late March 2019 was the Pharmacist Regularly and Usually in Charge of the Pharmacy (PRUIC) at Shop 101.

(iv) Between on or about 1 February 2019 and on or about 5 August 2019 and while practising as a registered pharmacist and / or the PRUIC at Shop 101, Mr Rest dispensed, or authorised to be dispensed medications listed in Schedule 8 of the S_tandard for the Uniform Scheduling of Drugs and Poisons_ from Ramsay Pharmacy Wendouree without a prescription as particularised in Appendix A.

(v) The conduct of Mr Rest set out at particular (i) - (iv) is inconsistent with:

(A) Regulation 48 of the Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) (Regulations), which provides:

48 Sale or supply of Schedule 8 poison by pharmacist

(1) A pharmacist must not sell or supply a Schedule 8 poison unless that sale or supply is -

(a) subject to regulation 51, sale or supply -

(i) on an original prescription of a registered medical practitioner, veterinary practitioner, dentist, nurse practitioner or authorised midwife; or

(ii) if the original prescription is required to be submitted to a public authority by any Act of a State or Territory or the Commonwealth, on a copy of a prescription referred to in subparagraph (i) certified by, or accompanied by a certification from, a pharmacist who has previously received the prescription; or

(b) sale or supply in accordance with a verbal instruction given under regulation 25(1) or (2); or

(c) subject to regulation 54, sale or supply to a patient in or at a hospital or day procedure centre in accordance with a chart instruction given on a hospital medication chart; or

(d) sale or supply in accordance with an order of a registered medical practitioner (e.g. a doctor's bag order), veterinary practitioner, dentist, nurse practitioner or authorised midwife; or

(e) sale or supply on the order of a person holding a permit for the poison (e.g. imprest stock to the holder of a Health Services Permit); or

(f) sale or supply to a person referred to in Column 1 of Part 2 of the Table in regulation 7 to the extent referred to in Column 2 of that Part of that Table.

(B) Clause 1.2, 1.3, 2.2, 5.2, 6.2, 6.3. 8.3 and 8.4 of the Board's Code of Conduct effective from 17 March 2014 to 28 June 2022 (Code of Conduct);

(C) the Board's Guidelines for Dispensing of Medicines effective from 7 December 2015 (Dispensing Guidelines), which provide:

b) ascertaining the authority of the prescriber to prescribe

c) obtaining any supplementary information to enable:

1. the patient to be properly identified so the medicine is dispensed to the person for whom it is intended, and

d) determining the prescriber's intentions as to the patient's medicine, including the dosing instructions

e) reviewing the medication history and other relevant patient information, to ensure that the medicine is safe and proper for the patient to use and that where possible, all other relevant considerations of the patient's health, including the use of any other prescription and non-prescription medicine such as complementary and alternative medicine, are taken into account

f) entering the prescription details on the pharmacy computer and recording any other aspect of the dispensing according to the requirements of the law

m) ensuring that the entire dispensing process has been carried out according to good pharmacy practice, and accepting that responsibility by placing his or her initials or signature in the prescription records of the pharmacy and any other place according to relevant legislation; and

(D) Care Principle 1 and 3; Integrity Principle 1 and 2 and Competency Principle 1 and 2 in the Pharmaceutical Society of Australia's Code of Ethics effective from 1 February 2017 (Code of Ethics).

(E) the Victorian Pharmacy Authority Guidelines, effective from 1 November 2018, (VPA Guidelines) which provide:

'Records of transactions and the remaining balance are required to be made contemporaneously to ensure that registers show the true and accurate balance of each S8 poison remaining after each transaction....The calculated balance of all S8 poisons must be reconciled regularly with actual stock on hand to ensure accuracy of the register' (Guideline 4.5.2)

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

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, between on in or about 1 February January 2019 and on or about 2 October 2019, he failed to maintain the integrity of the Schedule 8 Drug Register (Drug Register) at Ramsay Pharmacy Wendouree Shop 101.

(i) At all material times, Mr Rest was a registered pharmacist.

(ii) On 26 November 2018, Mr Rest was employed as the Pharmacy Manager at Shop 73.

(iii) In or about January 2019, Mr Rest commenced employment as the Pharmacy Manager at Shop 101 and commenced as the PRUIC in or about March 2019.

(iv) Mr Rest, while practising as a registered pharmacist and / or the PRUIC at Shop 101 was responsible for maintaining the integrity of the Drug Register by accurately recording the balance of medicines stored in the Schedule 8 drug safe and by ensuring that the security of the Drug Register was not compromised.

(v) Between on or about 1 February 2019 and on or about 5 August 2019, Mr Rest failed to, as soon as practicable after dispensing Schedule 8 medication, update the Drug Register as particularised in Appendix A (Columns A and G).

(vi) Between on about 14 February March 2019 and on or about 29 July 2019, Mr Rest failed to record the receipt of Schedule 8 medications delivered to Shop 101 as particularised in Appendix B.

(vii) Between on or about 5 February 7 April 2019 and on or about 24 September 2019, Mr Rest failed to accurately record Schedule 8 medications in the Drug Register at Shop 101 as particularised in Appendix C.

(viii) Between in or around January 2019 and in or around October 2019, Mr Rest provided his password to the Drug Register to an intern pharmacist.

(ix) The conduct of Mr Rest set out at particulars (i) to (viii) is inconsistent with:

(A) Regulation 107 and 108 of the Regulations which provide:

The following persons are required to keep records under this Part -

(a) a registered medical practitioner, veterinary practitioner, dentist, nurse practitioner, authorised midwife, authorised optometrist, authorised podiatrist, pharmacist or authorised registered nurse;

(1) A person required to keep records under this Part must, as soon as practicable after completing a transaction, record -

(b) the name, form, strength and quantity of the poison or controlled substance; and

(c) in the case of a transaction involving supply on a prescription -

(i) the name of the person who wrote the prescription; and

(ii) the directions for use as set out on the prescription; and

(d) in the case of a transaction involving supply on a chart instruction -

(i) the name of the person who gave the instruction; and

(ii) the directions for use as set out in the instruction; and

(e) the name and address or location of persons to whom the Schedule 4 poison, Schedule 8 poison or Schedule 9 poison is transferred, supplied, administered or otherwise disposed of; and

(f) in the case of a Schedule 8 poison or Schedule 9 poison purchased or obtained, the name and address of the person from whom the poison was purchased or obtained; and

(l) in the case of a transaction involving supply or administration to a specific person, the name of the person carrying out the transaction; and

(m) in the case of a transaction that is administration authorised verbally under regulation 84(1)(a), 85(1)(a) or 86(1)(a), the name of the person who gave the authorisation; and

(n) in the case of a transaction involving the supply of a monitored poison by a pharmacist to or for a person in circumstances specified in regulation 47(1)(a), (b), (c), (d) or (e) or regulation 48(1)(a), (b) or (c), the date of birth of that person.

(B) Regulation 109 of the Regulations which provides:

109 Methods by which records are to be retained and retrieved

(1) Subject to regulation 110, a person required to keep records under this Part must ensure that the records of all transactions in Schedule 8 poisons or Schedule 9 poisons kept by the person -

(b) show the true and accurate balance of each Schedule 8 poison and Schedule 9 poison remaining in the person's possession after each transaction; and

(c) show the name of the person carrying out the transaction.

(6) A person required to keep records under this Part must maintain the records made by the person of transactions in Schedule 8 poisons or Schedule 9 poisons in a manner that ensures that the records cannot be altered, obliterated, deleted or removed without detection.

(7) A person required to keep electronic transaction records under this Part must take all reasonable steps to ensure the person's personal access code for making an electronic transaction record for Schedule 8 poisons or Schedule 9 poisons is not known or used by another person;

(C) Clause 1.2, 1.3, 2.2, 5.2, 6.2, 6.3. 8.3 and 8.4 of the Board's Code of Conduct;

(D) the Board's Dispensing Guidelines, which provide:

f) entering the prescription details on the pharmacy computer and recording any other aspect of the dispensing according to the requirements of the law

m) ensuring that the entire dispensing process has been carried out according to good pharmacy practice, and accepting that responsibility by placing his or her initials or signature in the prescription records of the pharmacy and any other place according to relevant legislation;

(E) Care Principle 1 and 3; Integrity Principle 1 and 2 and Competency Principle 1 and 2 in the Code of Ethics; and

'Records of transactions and the remaining balance are required to be made contemporaneously to ensure that registers show the true and accurate balance of each S8 poison remaining after each transaction....The calculated balance of all S8 poisons must be reconciled regularly with actual stock on hand to ensure accuracy of the register' (Guideline 4.5.2)

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

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, between on or about 25 May and on or about 1 June 2020, Mr Rest failed to comply with conditions imposed on his registration by the Board.

(i) At all material times, Mr Rest was a registered pharmacist.

(ii) On 21 May 2020, the Immediate Action Committee of the Board imposed conditions on Mr Rest's registration under section 156(1)(a) of the National Law (the Conditions). The Conditions imposed on Mr Rest's registration included, but were not limited to:

1. The Practitioner must be supervised by another registered pharmacist (the supervisor) when possessing / supplying / administering / handling / dispensing / accessing / checking / recording (hereafter referred to as accessing), any medicine or poison listed in Schedule(s) 8 of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp and pharmaceutical items containing any active ingredient listed within Schedule 8 of the SUSMP.

For the purposes of this condition, 'supervised' is defined as:

The Practitioner must consult and follow the directions of the supervisor about the management of each prescription and must be directly observed by the supervisor who is physically present at all times.

1. Within 7 days of the notice of imposition of this condition, the Practitioner must, on the approved form (HPN10), nominate a primary supervisor and at least one alternate supervisor to be approved by the Board / Ahpra. The Practitioner must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that Ahpra will seek reports from them.
2. In the event that no approved supervisor is willing or able to provide the supervision required, the Practitioner must not possess/supply/administer/handle/dispense/access/check/record (hereafter referred to as access), any medicine or poison listed in Schedule(s) 8 of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp and pharmaceutical items containing any active ingredient listed within Schedule 8 of the SUSMP, until a new supervisor has been nominated by the Practitioner and approved by the Board / Ahpra.

(iii) On 23 May 2020, Mr Rest wrote to Ahpra/the Board to nominate supervisors at Chemist Warehouse Alfredton.

(iv) Between on or about 25 May 2020 and on or about 8 June 2020 Mr Rest dispensed schedule 8 medication on 9 occasions without the supervision of a Board approved supervisor when practising at Chemist Warehouse Alfredton in breach of the Conditions.

(v) The conduct of Mr Rest set out at particulars (i) to (v) is inconsistent with:

(A) Clause 1.2, 1.3, 2.2, 5.2, 6.2, 6.3. 8.3 and 8.4 of the Board's Code of Conduct.

(B) Care Principle 1 and 3; Integrity Principle 1 and 2 and Competency Principle 1 and 2 in the Code of Ethics.

Allegation 4 - Inappropriate supply of Scheduled medication

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

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 4 June 2020, Mr Rest supplied a Schedule 4 medication without prescription.

(i) At all material times, Mr Rest was a registered pharmacist.

(ii) Between May 2020 and 3 July 2020, Mr Rest was employed as a pharmacist at Chemist Warehouse Alfredton.

(A) a colleague (Mrs JRK) approached Mr Rest about medication for her husband, Mr RK, for pain; and

(B) Mr Rest supplied to Mrs JRK 10 tablets of Comforal Forte 500mg Paracetamol / 30mg Codeine Phosphate Hemihydrate (Comforal Forte 500/30) without a prescription, order or other authorisation from an appropriately registered health practitioner.

(iv) In supplying the Comforal Forte 500/30 to Mrs JRK, Mr Rest failed to:

(A) appropriately counsel Mrs JRK or label the Comforal Forte 500/30, including as to the appropriate dosage and potential adverse effects;

(B) establish whether the Comforal Forte 500/30 was a suitable medication for Mr RK; and

(C) affix a sedation warning to the Comforal Forte 500/30 supplied to Mrs JRK.

(v) In accordance with the Standard for the Uniform Scheduling of Medicines and Poisons, Comforal Forte 500/30 is a Schedule 4 medication listed within Appendix K.

(vi) The conduct of Mr Rest set out at particulars (i) to (v) is inconsistent with:

(A) Regulation 47 of the Regulations which provide:

47 Sale or supply of Schedule 4 poison by pharmacist

(1) A pharmacist must not sell or supply a Schedule 4 poison unless that sale or supply is -

(i) on an original prescription of a registered medical practitioner, veterinary practitioner, dentist, nurse practitioner, authorised midwife, authorised optometrist or authorised podiatrist; or

(ii) if the original prescription is required to be submitted to a public authority by any Act of a State or Territory or the Commonwealth, on a copy of a prescription referred to in subparagraph (i) certified by, or accompanied by a certification from, a pharmacist who has previously received the prescription; or

(b) sale or supply in accordance with a verbal instruction given under regulation 25(1), (2) or (3); or

(c) subject to regulation 54, sale or supply to a patient in or at a hospital or day procedure centre in accordance with a chart instruction given on a hospital medication chart; or

(d) subject to regulation 55, sale or supply to a resident in accordance with a chart instruction given on a residential medication chart; or

(e) subject to regulation 56, sale or supply in an emergency in which the pharmacist considers it necessary to ensure continuity of treatment; or

(f) subject to regulation 57, sale or supply in circumstances where the pharmacist considers it necessary to ensure continuity of treatment; or

(g) sale or supply in accordance with an order of a registered medical practitioner, veterinary practitioner, dentist, nurse practitioner, authorised midwife, authorised optometrist or authorised podiatrist; or

(h) sale or supply on the order of a person holding a permit for the poison; or

(i) sale or supply to a person referred to in Column 1 of Part 2 of the Table in regulation 7 to the extent and for the purpose referred to in Column 2 of that Part of that Table.

(2) This regulation does not apply to the sale or supply of a Schedule 4 poison to another pharmacist for use by the other pharmacist in the lawful practice of that pharmacist's profession.

(B) the Board's Dispensing Guidelines, which provide:

The placement of the dispensing label on the medicine packaging is largely determined by the design of the packaging and the manufacturer's label. The dispensing label is to be firmly attached to the immediate container (including each component of multiple-therapy packs) unless the immediate container is so small or is so constructed that the label would compromise the patient's ability to use the medicine (e.g. metered aerosols, insulin pen cartridges and some eye drops). In such instances, the label should be attached to the primary packaging or alternatively, purpose designed labelling tags or 'winged' labels may be used.

The label of each medicine dispensed must include the particulars required under state and territory legislation, and include:

• in the case of proprietary medicines, the brand and generic names of the medicine, the strength, the dose form and the quantity supplied

• specific directions for use, including frequency and dose

• the initials of the dispensing pharmacist (and if different, the initials of the pharmacist checking and issuing the medicine)

• a unique identifying code for the dispensed medicine

• the name, address and telephone number of the pharmacy or pharmacy department at which the medicine was dispensed

• the applicable storage directions and expiry date of the medicine which are required to facilitate the safe and effective use of the medicine by the patient

(C) Clause 1.2, 1.3, 2.2, 5.2, 6.2, 6.3. 8.3 and 8.4 the Board's Code of Conduct.

(D) Care Principle 1 and 3; Integrity Principle 1 and 2 and Competency Principle 3 in the Code of Ethics.

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

(b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

(c) unsatisfactory professional performance within the meaning of unsatisfactory professional performance in section 5 of the National Law;

in that, between on or about 26 November 2018 and on or about 4 June 2020, Mr Rest's knowledge, understanding and compliance with the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Drugs, Poisons and Controlled Substances Regulations was substantially below the standard reasonably expected of a registered pharmacist.

(i) At all material times, Mr Rest was a registered pharmacist.

(ii) On 26 November 2018, Mr Rest was employed as the Pharmacy Manager at Ramsay Pharmacy Wendouree (Shop 73).

(iii) In or about January 2019, Mr Rest commenced employment as the Pharmacy Manager at Ramsay Pharmacy Wendouree Shop 101 and commenced as the PRUIC in or about March 2019was the PRUIC.

(iv) Between in or around January 2019 and in or around 2 October 2019 4 June 2020, Mr Rest:

(A) did not make contemporaneous entries into the Drug Register;

(B) supplied Schedule 8 medication without prescription on the basis of residential aged care facility patient charts received by facsimile;

(C) provided his password for the Drug Register to an intern pharmacist.; and

(D) supplied a Schedule 4 medication without prescription, order or other authorisation from an appropriately registered health practitioner.

when he knew, or ought to have known, that the conduct was in contravention of the Regulations.

(v) The conduct of Mr Rest set out at Allegations 1 to 5 and particulars (i) to (iv) is inconsistent with:

(A) Regulations 47, 48, 107, 108 and 109 as particularised in Allegations 1,2 and 4.

The pharmacist who is regularly and usually in charge of a pharmacy or pharmacy department is responsible for: 1. ensuring compliance with statutory obligations and ethical standards; 2. the general security of the premises, including control of the keys or other entry devices and intrusion alarm systems; 3. ensuring the correct supervision of students, pre-registrants and dispensary assistants; 4. ensuring that in his or her absence, another pharmacist is in charge for the time being; 5. The preparation and maintenance of an operations manual for use in the pharmacy; and 6. the maintenance at the premises of the required references and equipment.

(C) Clause 1.2, 1.3, 2.2, 5.2, 6.2, 6.3. 8.3 and 8.4 the Board's Code of Conduct.

(D) Care Principle 1 and 3; Integrity Principle 1 and 2 and Competency Principle 1 and 3 in the Code of Ethics.

[1] The Amended Notice of Allegations, without the attached schedules, is reproduced in Appendix A to these reasons.

[2] See Victorian Legal Services Commissioner v Hyatt [2018] VCAT 1498 at [24]- [25]; Commonwealth v Director Fair Work Building Industry Inspectorate [2015] HCA 46 (2015) 258 CLR 482 at [46]- [58].

[3] Medical Board of Australia v McGrath [2014] VCAT 641 at [19] - [21]; Dental Board of Australia v Powell [2013] VCAT 999.

[4] Dental Board of Australia v Powell [2013] VCAT 999.

[5] See Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99 at [113].

[6] This is an apparent reference to the Covid-19 Omnibus (Emergency Measures) Act 2020 (Vic).

[7] Victorian Legal Services Commissioner v Williams (Legal Practice) [2022] VCAT 806 (15 July 2022) , Quigley J President of VCAT (Williams) and Stirling v Legal Services Commissioner [2013] VSCA 374 (Stirling).

[8] [2017] VCAT 822.

[11] Stirling v Legal Services Commissioner [2013] VSCA 374 at [121].