Pharmacy Council of NSW v Ibrahim

Supreme Court of NSW|2020-03-26

Judgment

HER HONOUR: This is an appeal the NSW Civil and Administrative Tribunal ("NCAT") brought pursuant to cl 29(2)(b) of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act").
By amended summons filed 26 February 2020, the plaintiff seeks the following orders: 1. that leave be granted to appeal from the whole of the decision of Ibrahim v Pharmacy Council of NSW [2019] NSWCATOD 187 ("the Tribunal decision"); 2. that the appeal be allowed; 3. pursuant to cl 29(8)(b) of Sch 5 to the CAT Act, that the decision of the Tribunal be set aside; 4. pursuant to cl 29(8)(c) of Sch 5 to the CAT Act, that the Court substitute for the decision of the Tribunal a decision that the defendant's registration be suspended under s 150 of the Health Practitioner Regulation National Law 2009 (NSW) ("the National Law"); and 5. in the alternative to order 4, that the proceedings be remitted to a differently constituted Tribunal member to be determined in accordance with law.
The plaintiff is the Pharmacy Council of NSW ("the Pharmacy Council"). The defendant, Hany Samir Ibrahim ("Mr Ibrahim"), is a registered pharmacist. For convenience I will refer to the parties as the plaintiff and defendant throughout this judgment. The plaintiff relies on the affidavit of Iain William Enos Martin filed 12 March 2020 and a court book.
As the defendant filed a submitting appearance, I am conscious in considering this appeal that there is no active contradictor. The hearing took place via video link, but the defendant appeared unrepresented. He requested that this Court quash the conditions attached to his practice as a pharmacist on the basis that they are too onerous and that he is currently unemployed. I explained that I could not accede to this request, as he had not appealed the Tribunal decision.
On 1 July 2019, the defendant was allegedly involved in an incident resulting in his being charged with an offence under s 61I of the Crimes Act 1900 (NSW) (sexual intercourse without consent) and two offences under s 61KC(a) of the Crimes Act (sexually touching another person without consent). The allegations are more fully set out in the Tribunal decision. As the defendant has pleaded not guilty to the criminal charges, which are due to be heard in the Local Court in September 2020, it is not appropriate that I refer to them in any detail.

The legislative framework

Sections 3 and 3A of the National Law set out the objective and guiding principles of the Act. They read: "3 Objective and guiding principles (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."
Section 150 of the National Law relevantly reads: "150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or …"
In determining whether it must act under s 150 of the National Law, the role of the relevant Council or Tribunal is not to make findings of fact or a determination of the merits of any complaint.
In Lindsay v NSW Medical Board [2008] NSWSC 40 ("Lindsay"), Hall J considered the interlocutory nature of an action made under s 66 of the Medical Practice Act 1992 (NSW), which was the predecessor provision to s 150 of the National Law. His Honour's comments are equally applicable to s 150 of the National Law. In Lindsay, Hall J stated at [79]: "[79] An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining the matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, 'interlocutory'. Such a process, in the present case, as earlier observed, did not involve the making of findings of act or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s. 66(1). Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act."
Section 159 of the National Law concerns appeals. It reads: "159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - … (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given."

The decision of the Pharmacy Council

On 2 August 2019, the Pharmacy Council suspended the defendant's registration as a pharmacist pursuant to s 150 of the National Law and provided written reasons for its decision.
In its decision, the Pharmacy Council considered that maintaining the necessary standard of practice, including ethical conduct, is at the core of public confidence in the pharmaceutical profession. It was the opinion of the Pharmacy Council that public confidence in the profession would be greatly diminished if a pharmacist who had been charged with sexual assault upon a customer was able to continue to practice pending the outcome of the trial.

Appeal to the Tribunal

On 5 August 2019, the defendant commenced proceedings in NCAT seeking to stay the action of the Pharmacy Council.
Both parties were legally represented at the hearing. The grounds of appeal were formulated during the hearing as follows: 1. that the delegates of the Pharmacy Council erred in determining that it was appropriate to suspend the registration of the defendant as a pharmacist; or, 2. in the alternative, if the Tribunal was satisfied that it was appropriate or in the public interest to take action for the protection of the health or safety of any person or persons, that appropriate relief could be provided by imposing conditions on the defendant's registration.
On 30 August 2019, the defendant withdrew his application for a stay and filed an amended application to appeal the Pharmacy Council's decision pursuant to s 159 of the National Law.
Section 159 of the National Law provides for a health professional to appeal the decision of a professional Council to NCAT. Section 159 provides for a de novo appeal requiring NCAT to re-exercise its power under s 150 and to terminate, vary or confirm the action of the relevant Council.

The decision of the Tribunal

On 15 November 2019, the Hon F Marks, principal member; J Ludington and R Jaja, professional members; and G Alder, general member ("the Tribunal") heard the defendant's appeal.
On 12 December 2019, the Tribunal handed down written reasons for its decision. In it, the Tribunal set out the procedural background and applicable legislation before summarising the defendant's grounds of appeal. The Tribunal also provided a factual background of the charges laid against the defendant by reference to a police fact sheet, noting "a number of features of the underlying factual circumstances" which it took into account in determining the defendant's appeal.
At [29]-[31], the Tribunal stated: "[29] We again stress that these are matters which we take into account only for the purpose of our assessment of whether or not it is appropriate to take action under section 150 of the National Law. That having regard to all of the matters set out in [28] above we are satisfied that it is appropriate for the protection of the health or safety of the public, and to the extent that the health or safety of the public is in the public interest, that it is in the public interest that an order be made under section 150(1) of the National Law. These matters in the aggregate are sufficient to enliven the provisions of that section. There is a requirement to protect members of the public against the possibility that the appellant might engage in conduct of this kind. Furthermore, there is public interest in action being taken to preclude the public again being exposed to conduct of this kind. [30] Having so determined it is necessary to consider what order should appropriately be made under section 159C of the National Law. In considering this matter we take into account the fact that we have not been informed of any other matter adverse to the appellant having previously come to the attention of the Council. Furthermore, there is no suggestion that the respondent lacks competency in his practice as a pharmacist. Finally, the misconduct alleged against the appellant is confined, albeit the allegation is of a very serious nature. [31] If we were to confine ourselves to the protection of the health or safety of the public, we are of the opinion that it could be appropriate to permit the appellant to continue to practise as a pharmacist provided that he was precluded from contact with members of the public. The respondent submitted that there was a risk to the health or safety of the public if the appellant were permitted to interact with anyone. Mr Robinson correctly pointed out that such a submission is inconsistent with the fact that the appellant has been released on bail pending the outcome of the criminal proceedings. We can detect no relevant risk if the appellant were permitted to work in a dispensary with no interaction with the public. The respondent also suggested that even if the appellant were to leave the dispensary for a toilet break, he would pose a risk to the safety of the public. We reject these submissions as being fanciful."
Having considered the defendant's grounds of appeal, the Tribunal set aside the Pharmacy Council's decision to suspend the defendant's registration as a pharmacist, and substituted a decision to allow the defendant to continue to practice as a pharmacist subject to a number of specified conditions.

Appeal to this Court

Clause 29(4)(b) of Sch 5 to the CAT Act allows for appeals to the Supreme Court as of right on any question of law, and with the leave of the Court on any other grounds: see Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [3].
The grounds of appeal in the plaintiff's amended summons in this Court may be summarised as follows: 1. that the Tribunal erred by construing the second limb of s 150 of the National Law as subsumed or collapsed within the first limb; 2. that insofar as the Tribunal did consider the second limb, which the plaintiff denies, it did so erroneously and without considering the plaintiff's substantial and clearly articulated arguments; 3. that the Tribunal erred in construing and applying s 150 of the National Law by failing to have regard to the matters set out in ss 3 and 3A; and 4. that the Tribunal erred by proceeding on the basis that the principles that apply to s 150 proceedings are those as set out in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 ("Crickitt No 2").
As each of these grounds of appeal involves a question or questions of law, it is not necessary for the plaintiff to seek leave.
The issues raised in these grounds overlap considerably. I will begin by considering Grounds 1 and 2 together, followed by the other grounds, if necessary.

Grounds 1 and 2 - misapplication of s 150 of the National Law

The first ground of appeal is that the Tribunal erred in law by failing to properly consider the second limb of s 150 of the National Law. The second ground of the appeal is, in part, a reformulation of the first.
Section 150 of the National Law mandates action in the event that the relevant Council (or in these proceedings, the Tribunal standing in its shoes) is "satisfied it is appropriate to do so" in either of two circumstances which have been described as two "limbs". They are identified as follows: "…if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) [the first limb] or if satisfied the action is otherwise in the public interest [the second limb]." (emphasis added)
Counsel for the plaintiff has submitted that on a fair reading of s 150 of the National Law, the word "otherwise" must be given work to do. As such, the "public interest" referred to in the second limb must mean something separate from, and beyond, "the protection of the health or safety of any person or persons" from the first limb: see, for example, Hanna v Medical Board of NSW [2017] NSWCATOD 27 ("Hanna") at [18]; Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 at [21]-[22].
It is the plaintiff's case that the separation of the two limbs in s 150 of the National Law is significant. The second limb of s 150 of the National Law is derived from an amendment in 2008 to its predecessor provision, s 66 of the Medical Practice Act. In the Second Reading Speech to the Legislative Council, Parliamentary Secretary Penny Sharpe stated that the amendment adding the second limb was introduced for the following reason: "…to clarify that the actions under this section must be guided by what is needed to protect the public interest. The Board…should look to the outcome which best addresses the statutory purpose of the protection of the public or is otherwise in the public interest".
The plaintiff referred to several cases which help define the meaning of "public interest" for the purposes of interpreting s 150 of the National Law. They are that the "public interest": 1. "…directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances… The expression 'the public interest' is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination…The indeterminate nature of the concept of 'the public interest' means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination.": see McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 at [9]-[11] (Tamberlin J); 2. "…is a term embracing matters, among others, of standards of human conduct…the interest is therefore the interest of the public as distinct from the interest of an individual or individuals": see Director of Public Prosecutions v Smith (1991) 1 VR 63 ("Smith"); and 3. is referred to in order "to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": see Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681 (Wilcox CJ and Keely J).
As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18].
I have set out the Tribunal's consideration of the two limbs of s 150 of the National Law earlier in this judgment. Critically, at [29], the Tribunal stated: "…[W]e are satisfied that it is appropriate for the protection of the health or safety of the public, and to the extent that the health or safety of the public is in the public interest, that it is in the public interest that an order be made under section 150(1) of the National Law. There is a requirement to protect members of the public against the possibility that the appellant might engage in conduct of this kind. Furthermore, there is public interest in action being taken to preclude the public again being exposed to conduct of this kind." (emphasis added)
It is the plaintiff's case that in its reasons, the Tribunal considered the second limb only insofar as it related to the matters set out in the first limb. That is, in considering whether it must take action under s 150 of the National Law, the Tribunal equated "public interest" with "protection of the health and safety of the public".
I agree with the plaintiff's submission. In my view, the Tribunal's reasoning at [29] and confirmed at [31] of its decision demonstrates that it erroneously confined its application of s 150 to the protection of the health or safety of the public. That application is out of keeping with the plain language of the statute, which clearly differentiates in its two limbs between the protection of the health and safety of the public, and the public interest. The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held: see Smith, extracted earlier. The Tribunal's failure to properly apply s 150 of the National Law constitutes a constructive failure to exercise jurisdiction and an error on the face of the record. The decision of the Tribunal dated 12 December 2019 is set aside.
As the first two grounds concerning the misapplication of s 150 of the National Law have been made out, it is not necessary for me to consider the other grounds in detail. However, for the sake of completeness, I will briefly consider the plaintiff's fourth ground of appeal as it relates to Crickitt (No 2).

Ground 4 - erroneous reliance on Crickitt (No 2)

The plaintiff submitted that the Tribunal may have collapsed the second limb within the first limb because it erroneously adopted the principles from Crickitt (No 2). At [18] of its decision, the Tribunal stated that Crickitt (No 2) summarised "the principles which apply to s 150 proceedings", and then quoted from Crickitt (No 2) relevantly at [56]: "[56] … (7)(c) The manner in which the introductory words of subsection (1) [of s 150 of the National Law] are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word 'otherwise' and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is 'otherwise in the public interest', in the sense that health or safety are matters within the public interest. That is, public health and safety are within the public interest but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference in general terms is between health and safety being subsumed generally within the public interest, or health and safety being exclusive of public interest. If the former is correct, then arguable, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the finds should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. The respondent submitted that the provision operated so that 'otherwise' would mean 'in some other way'. Therefore, the health and safety element is subsumed within the public interest. We do not understand the appellant to have made a contrary submission. As this approach to construction appears to us to reflect the overall intention of the section, we shall apply it for the purpose of these proceedings. …"
In my view, the appeal panel's application of the two-limb test in s 150 of the National Law in Crickitt (No 2) cannot be correct, for the reasons expressed in relation to grounds 1 and 2.
The plaintiff further submitted that in addition to erroneously collapsing the two-limb test in s 150 of the National Law, the Tribunal in Crickitt (No 2) misapplied the Briginshaw principle. I will briefly address the plaintiff's arguments as follows.
Firstly, in Crickitt (No 2) at [56(4)], the Tribunal stated that when considering taking action under s 150 of the National Law, the relevant Council or Tribunal would need to "feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach". This statement is a citation of R v Medical Board of Australia [2013] WASAT 28 at [28], citing Bernadt v Medical Board of Australia [2012] WASAT 185 ("Bernadt").
The plaintiff submitted that the Tribunal in Crickitt (No 2) erred in extracting and citing R v Medical Board of Australia as authority for this proposition. I agree. In R v Medical Board of Australia at [105]-[106], the Tribunal stated that the comments from Bernadt "have been taken out of its context". The Tribunal in R v Medical Board of Australia went on to expressly reject that passage of Bernadt and state that the Briginshaw approach was not appropriate in the context of determinations made under s 150 of the National Law. It follows that the passage of Bernadt quoted in Crickitt (No 2) at [56(4)] does not accurately summarise the case law relied upon, and misapplies the relevant law. Contrary to the Tribunal's decision in these proceedings, the Briginshaw approach is not applicable to a decision under s 150 of the National Law.
Secondly, the plaintiff submitted that in Crickitt (No 2) at [56(5)], the Tribunal again referred to R v Medical Board at [28] as stating that when making a determination under s 150 of the National Law, a relevant Council or Tribunal must form a "reasonable belief" that the practitioner in question poses "a serious risk" to persons. Neither of these concepts appears in the words of s 150 of the National Law. I agree with the plaintiff that to the extent that Crickitt (No 2) seeks to introduce these requirements into the construction of s 150 of the National Law, the Tribunal in these proceedings fell into error.
Thirdly, the plaintiff submitted that in Crickitt (No 2) at [56(7)(g)], the Tribunal relied on the principles outlined in Berger v Council of the Law Society of New South Wales [2013] NSWCA 336 ("Berger"). However, Berger concerned a different statutory provision in the context of professional disciplinary actions taken against legal practitioners. Unlike s 150 of the National Law, that provision focused on whether there was enough evidence to support a determination that the practitioner "presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended" (Berger at [17]-[18]) (emphasis added). In Crickitt (No 2), the Tribunal repeatedly referred to the "necessary preconditions" applicable to s 150 of the National Law. Insofar as the Tribunal in Crickett (No 2) derived the principles of necessity and unacceptable risk from Berger, which concerned a different statutory provision, and applied them in the context of s 150 of the National Law, it fell into error.
For these reasons, it is my view that by proceeding on the basis that the principles in Crickitt (No 2) at [56] "apply to section 150 [of the National Law] proceedings", the Tribunal in these proceedings fell into error and its decision should be set aside.

Appropriate outcome

The final issue to consider is whether the defendant's registration should be suspended pursuant to s 150 of the National Law.
As stated, the defendant appeared without representation at the hearing via audio link. He stated that he did not wish to have his registration suspended, and that because the conditions currently qualifying his ability to practice are too onerous, he is currently unemployed. Counsel for the plaintiff submitted that the charges against the defendant are serious, and that there is a degree of urgency in resolving this matter as quickly as possible. As such, she submitted that it would be preferable for this Court not to remit the matter, but rather substitute its own decision for that of the Tribunal.
I appreciate that these proceedings have already been protracted in length and I do not wish to delay their resolution unnecessarily. However, it is my view that some of the Tribunal members have expertise in the area of public interest of pharmacists and of their profession. This Court does not. Hence, it is more appropriate that these proceedings be remitted to NCAT to be determined according to law by a differently constituted Tribunal.

Result

The decision of the Tribunal dated 12 December 2019 constitutes a constructive failure to exercise jurisdiction and an error of law on the face of the record. The decision is set aside. The proceedings are remitted to NCAT, differently constituted, to be determined according to law.

Costs

The plaintiff does not seek its costs of this appeal. I make an order that there is no order as to costs.

The Court orders that: (1) The decision of the Tribunal dated 12 December 2019 is set aside. (2) The proceedings are remitted to NCAT, differently constituted, to be determined according to law. (3) There is no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2020

Medical Practice Act 1992(NSW)

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