1. Leave is granted to the respondent to amend the notice of allegations as set out in the amended notice of allegations behind tab 4 of the Tribunal Book.
2. The Tribunal orders that:
   • (a) Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), Ms Ye is reprimanded.
   • (b) Under section 196(2)(b)(i) of the National Law, the conditions set out in the annexure to the reasons are imposed on Ms Ye's registration.
3. The parties are given leave, within 14 days of these orders, to make submissions on the form of the conditions set out in the annexure to the reasons.

1. Ms Min-Ning Annie Ye was registered as a pharmacist on 13 November 2009.
2. Between September 2015 and December 2016, Ms Ye worked as a pharmacist at a privately-owned pharmacy in a relatively new suburb, south west of Melbourne (Pharmacy).
3. It was not a happy experience for Ms Ye, who had recently returned from maternity leave and was overlooked for the position of pharmacist manager at the Pharmacy, which had earlier been promised to her by her then employer and despite her having been the pharmacist manager at another store owned by the same group prior to her maternity leave.
4. Ms Ye encountered difficulties in dealing with the person who was appointed as pharmacist manager, as well as managing the long hours at the Pharmacy and the lack of colleagues on whom she could rely to relieve her when sick.
5. On four separate occasions, in November 2015, January 2016 and November 2016, Ms Ye supplied herself with medications to relieve ailments while on duty at the Pharmacy. She did not have prescriptions to do so.
6. Following a failed attempt to mediate issues between Ms Ye and the pharmacist manager, her employer decided to relocate Ms Ye to another pharmacy in which her employer had an interest. In December 2016, on or around her last day at the Pharmacy, Ms Ye decided to alter or delete records relating to her supply of medications to herself. She says that this was because of her fear of reprisal by the pharmacist manager, who Ms Ye had earlier reported to the Australian Health Practitioner Regulation Agency (AHPRA) for other issues.[1]
7. Separately, Ms Ye also made a number of dispensing errors at the Pharmacy between April and September 2016.
8. As it transpires, the pharmacist manager reported these matters to AHPRA.
9. On 27 March 2019, following investigation, the Pharmacy Board of Australia (Board) referred allegations relating to Ms Ye's self-supply of medication, alteration of records and dispensing errors to the Tribunal.
10. Ms Ye admits to the allegations (as amended), and accepts that the allegations relating to:
    • (a) the self-supply of medication and the alteration of records amounts to professional misconduct within the meaning of paragraph (a) of the definition in section 5 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law); and
    • (b) the dispensing errors amounts to unsatisfactory professional performance within the definition in section 5 of the National Law.
11. The Board submits that Ms Ye should be reprimanded and her registration suspended for a period of at least three months. While Ms Ye accepts that she should be reprimanded, she submits that her registration should not be suspended. However, she has indicated a willingness to accept any conditions (eg. regarding education) that the Tribunal may impose.
12. For the reasons which follow, we have found the amended allegations proved, and have determined that Ms Ye should be reprimanded and her registration subject to conditions in relation to education and mentoring over the next 12 months. Having regard to all the facts and circumstances, we do not consider suspension to be necessary or appropriate.

1. The detailed allegations are as follows[2] (with certain details de-identified):[3]

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

1. unprofessional conduct within the meaning of section 5 of the National Law ...,

1.1 around and during 2015 and 2016 and while working as a pharmacist at the [Pharmacy], Ms Ye supplied herself with prescription-only medication in circumstances where there was not a prescription and/or an appropriate authorisation

1.2 on or around 17 December 2016, Ms Ye altered and/or deleted records from the [Pharmacy] relating to her self-supply of prescription-only medication for which she did not have a prescription.

1. Ms Ye was registered as a pharmacist with the Board and worked at the [Pharmacy] during the relevant period.
2. On 25 November 2015, Ms Ye supplied herself with the following medications:
   1. Metronide [(metronidazole) tab] 400 mg 21; and
   2. CM [amoxicillin cap] 500mg 20.

1. On 5 January 2016, Ms Ye supplied herself with CM [amoxicillin cap] 500mg 20.

1. On another occasion, Ms Ye supplied herself with [prochlorperazine] 5mg (25).
2. In or around November 2016, Ms Ye supplied herself with the following medications:
   1. FML liquifilm eye drops 5ml; and
   2. Advantan-Fatty ointment 0.1% 15g.
3. The medications referred to in particulars (b) to (e) above were Schedule 4 poisons as contained in the Standard of the Uniform Scheduling of Medicines and Poisons that applied during the relevant period. Schedule 4 poisons are restricted medications and require a prescription.
4. Ms Ye did not have prescriptions for the restricted medications.
5. Ms Ye improperly used her position as a pharmacist to access and supply these restricted medications to herself, for the purpose of self-administration.
6. On 17 December 2016, Ms Ye altered and/or deleted pharmacy records relating to her supply of the restricted medications for which she did not have a prescription.
7. At all relevant times, Ms Ye was bound by the standards as set out in the Codes and Guidelines of the Board or endorsed by the Board[.]
8. Ms Ye's conduct breached standards as set out in the Codes and Guidelines of the Board or endorsed by the Board.

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

1. unprofessional conduct within the meaning of section 5 of the National Law ...,

1. unsatisfactory professional performance within the meaning of section 5 of the National Law ...;

in that between on or about 24 April 2016 and 7 September 2016 she made a number of dispensing errors.

1. On or around 24 April 2016, Ms Ye dispensed and/or supplied Ardix Glicazide Tab 60mg to Patient A in circumstances where Imdur 60 Durule SR tablet 60 mg had been prescribed by Patient A's treating practitioner.
2. [omitted]

1. On or about 6 September 2016, dispensed and/or supplied Mirena IUD to Patient C in circumstances where Implanon NXT had be (sic) prescribed by Patient C's treating practitioner.

1. On or about 7 September 2016, dispensed Patient D's prescription for Sevikar 40/10 under the incorrect name of Patient E.
2. At all relevant times, Ms Ye was bound by the standards as set out in the Codes and Guidelines of the Board or endorsed by the Board...
3. Ms Ye's conduct breached standards as set out in the Codes and Guidelines of the Board or endorsed by the Board.

[Note: allegation 3 was an alternative to allegations 1 and 2 and so is not set out.]

1. Having regard to all the material filed, we have no difficulty in making those findings.

1. Under section 196 of the National Law, the Tribunal may make findings that a practitioner has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.
2. The Board seeks, and Ms Ye consents to, findings of professional misconduct concerning her conduct in relation to Allegation 1.
3. Situations in which conduct amounts to professional misconduct include where it involves:
   • (a) unprofessional conduct by the practitioner ... 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.[4]
4. The parties jointly submit, and the Tribunal accepts, that Ms Ye's conduct in relation to Allegation 1 should be characterised within paragraph (a) of that definition.
5. The Board seeks, and Ms Ye consents to, findings of unsatisfactory professional performance concerning her conduct in relation to Allegation 2.
6. Situations in which conduct amounts to unsatisfactory professional performance involves matters where the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the relevant health profession is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
7. The parties jointly submit, and the Tribunal accepts, that Ms Ye's conduct in relation to Allegation 2 should be characterised as falling within that definition.

1. If a finding of professional misconduct or unsatisfactory professional performance is made, the Tribunal can caution or reprimand, impose conditions on registration, fine, suspend or cancel the registration of a practitioner.[5]
2. As noted in Medical Board of Australia v Jansz:[6]

Determinations consequent upon adverse findings in relation to members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession, in the sense of maintaining its stature and integrity in the eyes of the public.

1. While the power to make determinations is not intended to be punitive, specific and general deterrence and the facilitation of rehabilitation will be relevant.[7]

1. Relevant factors to be considered by the Tribunal include the nature and seriousness of the conduct, evidence of contrition, the need or otherwise for specific deterrence, other disciplinary findings, evidence of character, evidence of rehabilitation, any delay between the start of the investigation until the completion of the Tribunal hearing and other mitigating factors.[8] Also relevant is the degree of insight that the practitioner has into his or her offending conduct.[9]
2. As previously noted, the Board seeks, and Ms Ye agrees with, the imposition of a reprimand. There is disagreement on the need for a period of suspension and (although Ms Ye has indicated a willingness to accept conditions), no particular conditions on registration have been proposed.

1. We agree that a reprimand is appropriate in this case.
2. A reprimand is not a trivial determination, rather it is a strong censure of the practitioner for falling below the standards expected of that practitioner.
3. The inclusion of the determination on the register of practitioners, coupled with the requirements in paragraph 12 of the conditions (set out in the annexure to these reasons), will ensure that both present and future employers are aware that Ms Ye has been subject to reprimand.

1. The Board sought a suspension period of 'at least' three months. In the context of the 'extra step of [Ms Ye's] deletion of records' regarding her self-supply of medication, the Board says a period of suspension is appropriate because the 'public needs to be protected from conduct of that kind'.
2. In terms of parity, the Board notes the decision in Occupational Therapy Board of Australia v Cornelio[10] where the practitioner was disqualified from re-applying for registration for a period of three months in relation to misconduct involving the forging of records. It should be noted, however, that this appears to have been an agreed penalty, which the Tribunal then adopted.[11]
3. The Board did not identify any other 'like' cases, although they noted two unreported decisions of the Western Australian State Administrative Tribunal that had some similarities.

1. In Medical Board of Australia and Lee,[12] a doctor admitted to self-prescribing schedule 4 medicines and, in some cases, issued prescriptions in the name of his partner knowing them to be false and to be for his own use. In that case, the doctor was reprimanded and fined, and audit conditions were placed on his registration.
2. In Nursing and Midwifery Board of Australia and Miruka,[13] the nurse had falsified documents for use in an application for employment. To give effect to agreed terms of settlement, the Tribunal ordered that the nurse be reprimanded, suspended for a period of seven months and pay part of the relevant board's costs.
3. For Ms Ye, it was submitted that the context of the offending in relation to allegation 1 is important. In this regard, her counsel (Ms Travers) pointed to the following facts drawn from Ms Ye's evidence:
   • (a) Ms Ye was a new parent.
   • (b) Her partner had lost his job.
   • (c) She had been forced to accept a position that differed from what she had been promised.
   • (d) She had to accept shifts, despite the need for flexibility given her parenting responsibilities.
   • (e) She had been overloaded at work, and was unsupported.
   • (f) There were tensions between herself and the pharmacist manager.
4. It was submitted that:
   • (a) The self-self supply of medication occurred on four occasions when Ms Ye was unwell and sought temporary relief of her symptoms, and when she was 'fatigued, isolated and helpless'.
   • (b) The deletion of records was 'impulsive', rather than involving 'deliberate concealment', in circumstances where Ms Ye was fearful of retaliation from her supervisor (whom she had previously reported to AHPRA).
   • (c) So far as allegation 2 is concerned, the errors were 'honest mistakes', made when Ms Ye was under pressure at work, and noting that she has taken steps to change her practices to conduct final checks before dispensing and being more careful.
5. On the question of whether suspension is necessary or appropriate, Ms Travers submitted that:
   • (a) The question of insight is critical and, in this case, Ms Ye accepts she was wrong, appreciates why her conduct was wrong and has taken steps to avoid further issues.
   • (b) Ms Ye had an unblemished record from November 2009 to November 2015, and since December 2016.
   • (c) Ms Ye co-operated with the investigation.
   • (d) There is no risk that Ms Ye will offend again.
   • (e) There is no risk to the public.
   • (f) Ms Ye is now a pharmacist in a hospital where she is supported (in a team of around 40 pharmacists), has better work/life balance and is easily able to access continuing professional development.
   • (g) Suspension would be overly punitive in circumstances where Ms Ye has learned from her mistakes and her mental health improved.
6. As indicated by Maxwell P in Quinn v Law Institute of Victoria Limited,[14] where choice is available in terms of sanction in disciplinary proceedings, the Tribunal should exercise those choices with a focus on the protection of the public.
7. While the self-dispensing is serious, the attempt that Ms Ye made to cover her tracks by deleting records is clearly an aggravating factor. However, it should be noted that there was medical evidence[15] suggesting that the combination of circumstances, discussed in paragraph [35] and the imminent move to a different pharmacy, lead to Ms Ye seeking treatment for anxiety and stress a few days before the relevant events. Unfortunately, it seems that Ms Ye acted before she was able to seek counselling with a psychologist. This does support the characterisation of the conduct as 'impulsive' rather than 'deliberate', and mitigates the extent of aggravation.
8. We also note Ms Ye's evidence that working in a public hospital environment is providing her with opportunities to build her knowledge and skills in a manner, and in a supportive environment, not previously available when she was working in a private pharmacy.
9. In our view, the protection of the public is best served in this case by tailoring the conditions on Ms Ye's registration to ensure that she continues to practice in an ethical manner, rather than imposing a period of suspension.

1. We consider that Ms Ye will gain insight by participating in an education course in relation to ethics, with subsequent mentoring to give Ms Ye the opportunity to apply her learning and cement an ethical approach in her practice over an extended period and in a controlled manner.
2. The additional conditions are reflected in the conditions in the annexure to these reasons, based on education and mentoring conditions imposed in other cases.
3. As the precise terms of the education and mentoring conditions were not discussed at the hearing, leave will be given to the parties to make submissions on the form of those conditions (eg. as to dates and times) within 14 days, if any changes in the language are required.

Annexure - Conditions on Ms Ye's registration (order 2)

1. The Practitioner must undertake and successfully complete:
   • (a) the course 'Ethics and dispensing in pharmacy practice' offered by the Pharmaceutical Society of Australia (pre-approved course); or
   • (b) another program of education, approved by the Pharmacy Board of Australia (Board) / Australian Health Practitioner Regulation Agency (AHPRA), in relation to the standards of ethical and professional conduct expected of pharmacists in their dispensing practices,

1. Within 28 days of the notice of the imposition of these conditions, the Practitioner must notify the Board as to whether she seeks to undertake a program of education other than the pre-approved course and, if so, must on the approved form (HPN24), nominate for approval by the Board / AHPRA an education course, assessment or program addressing the topics required. The Practitioner must ensure:
   • (a) The nomination includes a copy of the curriculum of the education.
   • (b) The education contains a formal assessment component.
2. The education should consist of a minimum number of 4 hours completed over a 6 month period.
3. The Practitioner must complete the education within the later of:
   • (a) 10 months of the imposition of these conditions; and
   • (b) 6 months of the notice of the approval by the Board / AHPRA of the education (other than the pre-approved course).
4. Within 14 days of the completion of the education, the Practitioner must provide to AHPRA:
   • (a) Evidence of successful completion of the education.
   • (b) A reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice.
   • (c) Evidence of having undertaken and successfully completed the formal assessment component of the education.

1. The practitioner must, following completion of the program of education required under conditions 1 to 5, be mentored by another senior pharmacist in relation to the standards of ethical and professional conduct expected of pharmacists.

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

1. The mentoring must consist of a minimum of 6 hours completed over six months and comprise of at least 6 sessions, with each session being for a duration of one hour and with no more than one session per calendar month.
2. Within 14 days of completion of the program of education required under conditions 1 to 5, the practitioner must, on the approved form (HPN16):
   • (a) 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; and
   • (b) 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:
     • (i) every month;
     • (ii) at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
     • (iii) whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner conduct or professional performance; and
     • (iv) when otherwise requested by AHPRA or the Board.
3. At such frequency determined by the Board, the Practitioner shall provide written reports to the Board, containing reflections and insight gained regarding the standards of ethical and professional conduct expected of pharmacists.
4. In the event an approved mentor is no longer willing or able to provide the mentoring, the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the practitioner within 21 days of becoming aware of the termination of the mentoring relationship
5. Within 30 days of the conclusion of the mentoring, the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that she has reflected on the issues that gave rise to the condition requiring her attendance for mentoring and which outlines how she has incorporated into her practice the lessons learnt from the mentoring.

1. Within 21 days of the imposition of these conditions the Practitioner must provide to Board, on the approved form (HPC), the contact details of a senior pharmacist at each hospital, clinic or other current place of practice (senior person). In providing this form, the practitioner acknowledges that:
   • (a) 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, and
   • (b) The Practitioner will be required to provide the same form:
     • (i) within seven days of the commencement of practice at each and every subsequent place of practice, and
     • (ii) within seven days of each and every notice of any subsequent alteration of these conditions.
2. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
3. The review period is 13 months from the date of the orders, being 2 January 2021.

[1] These matters are not before the Tribunal as the pharmacist manager moved interstate and the investigation of those matters was transferred to the local state body.

[2] Agreed Statement of Facts, Proposed Findings and Determinations dated 15 October 2019 (Agreed Statement): Tribunal Book at 1-8.

[3] Although no suppression orders have been made, given that proceedings may still be instituted in relation to the pharmacist manager, the Board submitted that it would be desirable to de-identify matters as far as possible.

[6] [2011] VCAT 1026 [362] (citation omitted).

[8] Medical Board of Australia v Griffiths [2017] VCAT 822 [43].

[9] Williams v Medical Practitioners Board of Victoria [2008] VCAT 1784 [99].

[10] [2019] VCAT 20.

[12] [2018] VR 123 (decision of Senior Member M Spillane dated 1 November 2018).

[13] [2018] VR 133 (decision of Senior Member L Eddy dated 19 October 2018).

[14] [2007] VSCA 122 [31].