Registered pharmacist – Professional misconduct -Convicted of
offences – Failure to notify Board of relevant events –
Failure to
comply with direction about health assessment – Impairment – No
Source
Original judgment source is linked above.
Catchwords
Registered pharmacist – Professional misconduct -Convicted ofoffences – Failure to notify Board of relevant events –Failure tocomply with direction about health assessment – Impairment – Noresponse to Board or Tribunal in respect ofproceedings - Costs
Judgment (14 paragraphs)
[1]
The Applicant repeats paragraph 9 of Ground 1 above.
The offences referred to in paragraph 9 of Ground 1 above are each punishable by a sentence of imprisonment of 12 months or more. They are therefore relevant events within the meaning of section 130(3)(a)(i) of the National Law (as in force at the time).
The Respondent became aware of the charges referred to in paragraph 9 on 26 April 2020.
The Respondent did not provide the Applicant with notice of the charges laid on 26 April 2020 within seven days of becoming aware of them (or at all).
The Respondent was required to notify the Applicant in writing of the occurrence of the relevant event by 3 May 2020.
The Respondent's conduct as particularised at paragraphs 18 to 22 above was in contravention of section 130 of the National Law and was inconsistent with:
23.1. the Retired Code, including clause 8.3 which states "Practitioners have statutory responsibility under the National Law to report matters to the National Boards: please refer to the Board's guidelines on mandatory reporting and sections 130 and 141 of the National Law."
[2]
23.2. Pharmaceutical Society of Australia's Code of Ethics for Pharmacists (Code of Ethics), including Integrity Principle 2 'A pharmacist... fulfils all legal obligations, including requirements related to professional indemnity insurance and workplace health and safety laws.'
[3]
The Respondent's conduct as particularised in paragraphs 18 to 22 above constitutes:
24.1. professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; or
24.2. in the alternative, unprofessional conduct within the meaning of the definition in section 5 of the National Law.
[4]
Ground 3 - Failure to cooperate and/or fully comply with the requirements of a health assessment
[5]
Between on or around 8 May 2020 and on or around 4 September 2020, the Respondent failed to cooperate and/or fully comply with the requirements of a health assessment including failing to submit for pathology testing.
[6]
On 8 May 2020, the Applicant required the Respondent to undergo a health assessment under section 169 of the National Law.
By letter dated 2 June 2020, Ahpra advised the Respondent, through her then legal representative Mr DL, that:
27.1. a health assessment appointment had been arranged with the Board's assessor
[7]
Dr Nigel Prior, Consultant Psychiatrist for 2 July 2020 at 10.30am (and asked that the Respondent advise Ahpra if that date and time was not suitable) (Appointment);
[8]
27.2. the Appointment was to occur over Skype / Telehealth;
27.3. it was necessary for her to provide pathology samples ahead of the 2 July 2020 appointment by 12 June 2020; and
27.4. she was provided with an Occupational Pathology Request form and further information as related to providing the samples.
[9]
On 22 June 2020:
28.1. the Respondent's then legal representative Mr DL advised Ahpra that he no longer held instructions to act for the Respondent;
28.2. Ahpra sent a copy of the letter dated 2 June 2020 referred to at paragraph 27 directly to the Respondent by email; and
28.3. the Respondent responded to that letter by email stating words to the effect that she had only just seen the email and sought advice from Ahpra as to how she should proceed.
On 23 June 2020, Ahpra responded to the Respondent's query and provided information relating to making an appointment with her local approved collection centre and advised her to do so as soon as possible.
On 24 June 2020, the Respondent advised Ahpra by email that her hair was below the recommended 3 cm for pathology collection, but undertook to obtain the other pathology tests.
On 29 June 2020, Ahpra sent an email to the Respondent following up the pathology testing (which remained outstanding) and providing a form for her to complete which would allow the health assessor to contact her on 2 July 2020 (which was largely contact information).
On 30 June 2020, Ahpra again followed up the Respondent by text message and email. The Respondent responded by email, on the same date, with only her contact information for the Appointment.
On 2 July 2020, Dr Prior confirmed by email that the Respondent did not answer her mobile phone or Skype at the arranged time for the Appointment.
On 6 July 2020, Ahpra emailed the Respondent to enquire why she had not attended the Appointment. Before a response was received from the Respondent, a re-scheduled health assessment appointment for 30 July 2020 (Second Appointment) was booked and confirmation of the same sent to the Respondent.
On 7 July 2020, the Respondent responded to Ahpra's 6 July 2020 email stating words to the effect that she had waited by her phone for four hours at 10.30am on 2 July 2020 but no one contacted her and she had no missed calls.
On 8 July 2020, Ahpra emailed the Respondent outlining that they were advised of her non-attendance 10 minutes after the Appointment began, and Ahpra also tried to contact her by telephone, which was unanswered.
On 20 July 2020, Ahpra emailed the Respondent in relation to, among other things, the pathology testing which was due to be completed by 10 July 2020.
On 22 July 2020, the Respondent responded by email stating (amongst other things) that:
38.1. "I went to do this a week ago but was unable to because there was not two people available and also there was a lot of confusion with the forms.";
38.2. "...that I don't have any photo ID and apparently it can take up to 4-6 weeks for me to get ID from service TAS. I only mention this because when I went last week they told me that I would need ID with a photo"; and
38.3. "I fully intend to do the test [sic] however I just need your advice on the matters above and I sincerely apologise for these delays."
On 23 July 2020, Ahpra responded to the Respondent giving further information and details to resolve the identification issue referred to at particular 38.2 above (among other things).
On 29 July 2020, Ahpra sent a reminder to the Respondent by email and text message for the Second Appointment.
On 30 July 2020, the Respondent attended the rooms of Dr Prior for a health assessment.
On 6 August 2020, the Respondent advised Ahpra that she needed to travel to New Zealand to visit her unwell father, and that she had made an appointment for 27 August 2020 for pathology testing.
The Respondent never attended for the required pathology testing.
On 4 September 2020, Ahpra advised the Respondent that it considered she had disengaged with the process in that she had not attended for the required pathology testing.
The Respondent's conduct as particularised between paragraphs 29 to 44 above was inconsistent with:
45.1. the Retired Code, including:
Professional Behaviour: "...practitioners must display a standard of behaviour that warrants the trust and respect of the community" (clause 8.1);
'Practitioners have responsibilities and rights relating to any legitimate investigation of their practice' (clause) 8.10:and
'it is important to maintain health and wellbeing' (clause 9.1).
45.2. The Code of Ethics, including:
Integrity Principle 1 'A pharmacist demonstrates accepted standards of professional and culturally appropriate personal behaviour regardless of the setting...';
Competency Principle 1 'A pharmacist... manages personal health and wellbeing to ensure there is no negative impact on professional practice... recognises signs or behaviour in self or colleagues which indicate a need for intervention with referral for advice and support...''
The Respondent's conduct as particularised between paragraphs 25 to 44 above constitutes:
46.1. professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in section 5 of the National Law; or
46.2. in the alternative, unprofessional conduct within the meaning of the definition in section 5 of the National Law.
[10]
The Respondent has an impairment as defined in section 5 of the National Law, in that she has been diagnosed with a substance use disorder and major depressive disorder, that detrimentally affects, or is likely to detrimentally affect, her capacity to practise as a pharmacist.
[11]
On 8 May 2020, the Applicant, among other things, required the Respondent to undergo a health assessment under section 169 of the National Law.
On 30 July 2020, the Respondent attended the Second Appointment with Dr Prior for the purposes of a health assessment.
Following that appointment Dr Prior provided to the Applicant his health assessment report on the Respondent dated 23 November 2020 (Report). Dr Prior, among other things, opined that the Respondent:
50.1. showed evidence of:
a mild substance use disorder (Methamphetamines and Cannabis); and
major depressive disorder, which was in remission with appropriate treatment.
50.2. required a period of at least 3 to 6 months treatment and documented abstinence from Methamphetamines and Cannabis prior to any consideration of a return to the workplace; and
50.3. once drug free and with positive reports from treating practitioners would be fit for return to work with a number of conditions on her registration which included that the Respondent:
50.3.1. seeks treatment with a Consultant Psychiatrist with an expertise in Addiction Medicine, an Addiction Medicine Specialist, or another Drug Service Counsellor of her choice, at a frequency determined by the treating practitioner, and that she authorise the practitioner to provide reports to the Applicant;
50.3.2. receives medical management from an experienced General Practitioner at a frequency determined by that practitioner, and also authorise that practitioner to provide reports to the Applicant;
50.3.3. is monitored by way of urine drug screening and hair testing (group 1 of the urine drug screening program); and
50.3.4. works in a supervised position under the direction of an experienced pharmacist (level 1 supervision) and, again, authorises that supervisor to report to the Applicant.
50.4. The Respondent never submitted for pathology testing. On that basis, the Report does not include an analysis of any pathology testing.
50.5. There is no updated information available about the Respondent's health.
50.6. The Respondent's substance use disorder and/or major depressive disorder detrimentally affects, or is likely to detrimentally affect, her capacity to practise as a pharmacist.
[12]
[1] The Health Practitioner Regulation National Law was adopted as a law of this State by the Health Practitioner Regulation National Law (Tasmania) Act 2010.
[13]
[2] The Board also filed a confirmation of delivery to the effect that documents had been delivered on 2 September 2025.
[14]
[3] Annexure A at [9] is repeated in the Board's allegations at [18]
Parties
Applicant/Plaintiff:
Pharmacy Board of Australia
Respondent/Defendant:
Strachan [2026] TASCAT 13
Legislation Cited (14)
Court Rules 2000
Drugs Act 2001
Offences Act 1935
Safety (Alcohol & Drugs) Act 1970
Practitioner Tribunal Act 2010
Civil and Administrative Tribunal Act 2020
Practitioner Regulation National Law (Tasmania) Act 2010
Court Rules 2000
Drugs Act 2001
Offences Act 1935
Safety (Alcohol & Drugs) Act 1970
Practitioner Tribunal Act 2010
Civil and Administrative Tribunal Act 2020
Practitioner Regulation National Law (Tasmania) Act 2010
Cases Cited (17)
Pharmacy Board of Australia v Strachan [2026] TASCAT 13 (6 February 2026)
Pharmacy Board of Australia v Cindy Maree Strachan[2025] TASCAT 107;
I have considered all the material filed by the Board in support of this referral. Where I make findings, I do so having applied the principles set out in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336.
I make findings of fact in respect of Ground 1 of the allegations contained in Annexure A at pars 8 to 14 inclusive.
I also find that the respondent's conduct as particularised in Annexure A at pars 9 to 14 inclusive was inconsistent with the Code, as particularised in Annexure A at 15.
I make findings of fact in respect of Ground 2 of the allegations contained in Annexure A at pars 19 to 22 inclusive.
I also find that the respondent's conduct as particularised in Annexure A at par 9[3] and pars 19 to 22 inclusive was in contravention of s 130 of the National Law, which requires registered health practitioners to give notice of certain events to the appropriate National Board. I also find the same conduct was inconsistent with the Retired Code and the Code of Ethics, as particularised in Annexure A at par 23.
I make findings of fact in respect of Ground 3 of the allegations contained in Annexure A at pars 25 to 44 inclusive.
I also find that the respondent's conduct as particularised in Annexure A at pars 29 to 44 inclusive was inconsistent with the Retired Code, and the Code of Ethics, as particularised in Annexure A at par 45.
In respect of Ground 4, the Board submits that it is open to the Tribunal to find, based on Dr Pryor's report, the worker's diagnosed conditions detrimentally affected or were likely to detrimentally affect the respondent's capacity to practice her profession. The Board submits that Dr Pryor's opinion is the only evidence before the Tribunal in relation to the respondent's impairment, and the Tribunal should not assume a reformation of the practitioner's character or behaviour solely on the basis of the passage of time, referring to Medical Board of Australia v Yu (No. 2)[2021] SACAT 45 and Healthcare Complaints Commissioner v Litchfield(1997) NSWLR 630. Based on the evidence, the Board says it is appropriate for the Tribunal to make a finding that the respondent has an impairment.
I acknowledge the Board's submission that a decision not to award the Board its costs of the proceedings will mean that those costs will be borne by other members of the profession thought their registration fees, in circumstances where it is the respondent whose misconduct has led to these proceedings.
>
> However, in the exercise of my discretion regarding costs of the proceedings, and having particular regard to the manner in which the respondent conducted himself in the investigation process and the proceedings before the Tribunal, I agree with the observation in Medical Board of Australia v Nguyen[2025] VCAT 287 at [197]:
>
> It seemed to us that it would be counterintuitive and counterproductive for costs orders to act as a deterrent to practitioners engaging in negotiations which can ultimately save costs in terms of preparation and hearing time and, importantly, avoid the need for victims of the practitioner's professional misconduct to give evidence.
(1997) 41 NSWLR 630
(1938) 60 CLR 336
I accept the Board's submission that the material before the Tribunal supports a finding that the respondent has an impairment under s 196(1)(b)(iv) of the National Law, within the meaning of that definition in s 5 of the National Law.
I make this finding in respect of the Substance Use Disorder diagnosed by Dr Pryor in his report. The recommendations that Dr Pryor outlined in respect of necessary treatment and conditions surrounding any potential return to work for the respondent appear to directed towards the Substance Use Disorder only. Dr Pryor appears in his report to accept that at the time of his assessment the respondent's Major Depressive Disorder was in remission as a result of treatment.
I accept the Board's submission that this finding can be made on the basis of the medical evidence before the Tribunal, even though it was authored several years ago. The respondent has had the opportunity to provide updated medical evidence, and has not done so.