Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Kaur [2020] NSWCATOD 83 Hearing dates: 13 and 14 July 2020 Date of orders: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member H Dowling, Senior Member D Preswick, Senior Member Dr C Berglund, General Member Decision: Consequent upon the finding that the respondent is guilty of professional misconduct we make the following orders: (1) the registration of the respondent as a pharmacist is cancelled (2) the respondent is precluded from making any application for review of the cancellation of the registration for a period of 18 months from this date (3) the respondent is to pay the costs of the applicant assessed in default of agreement (4) we ask the Registrar to notify the Pharmacy Council of NSW and the Australian Health Practitioner Regulation Agency that we have made orders (1) and (2) above. Catchwords: PROFESSIONS AND TRADES – pharmacist – pharmacist engaged in course of conduct purporting to complete Home Medication Reviews when not accredited to do so and falsifying the name of the accredited reviewing pharmacist – held constituted professional misconduct – registration cancelled – costs order made Legislation Cited: Health Practitioner Regulation National Law (NSW) ss 139B, 139E, 149C Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Surinder Kaur (Respondent) Representation: Counsel: I Chaterjee (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self-represented) File Number(s): 2020/00086146 Publication restriction: Publication of the names of persons identified in the proceedings as Patients A, B, C and D and Pharmacist A and any material which might tend to identify any such person is prohibited. REASONS FOR DECISION Background 1. These proceedings concern an amended application brought by the applicant, the Health Care Complaints Commission, by which complaints of unsatisfactory professional conduct and professional misconduct as those terms are defined in the Health Practitioner Regulation National Law (NSW) ("the National Law") are brought against the respondent Surinder Kaur, a pharmacist. 2. The application is, relevantly, in the following terms : The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Miss Surinder Kaur ("the practitioner") of (address suppressed), New South Wales, being a pharmacist registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner obtained her Bachelor of Pharmacy in the United Kingdom in 1998 and was registered to practice in New South Wales in 2000. In 2011 the practitioner was first employed as a pharmacist at Destro's Pharmacy in Drummoyne ("the Pharmacy"). The practitioner was employed at the Pharmacy until 2019. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. PARTICULARS OF COMPLAINT ONE 1. Between 1 May 2015 and 12 September 2016 the practitioner made 126 false and/or misleading claims to Medicare via the online 6CPA portal on the dates set out in Schedule A to this complaint in circumstances where the practitioner did not: a. receive a GP referral; b. attend the homes of any patients; c. have the requisite accreditation to perform a Home Medication Review ("HMR"). 2. On 11 April 2016, 28 April 2016 and 26 May 2016, the practitioner made 3 false and/or misleading claims to Medicare via the online 6CPA portal for HMR (11 April 2016, 28 April 2016 and 26 May 2016) in circumstances where the practitioner did not: a. attend the homes of any patients; b. have the requisite accreditation to perform a HMR. 3. Between 1 May 2015 and 12 September 2016, the practitioner inappropriately used the identity of Pharmacist A, without her knowledge or consent, to submit claims for payment for a total of 129 HMR to the Pharmacy Guild of Australia ("PGA") on the dates referred to in Schedule A and particular 2 above. 4. Between 1 May 2015 and 12 September 2016, the practitioner received an inappropriate financial advantage from the Pharmacy when she was paid $100 in cash for each HMR the practitioner claimed had been appropriately undertaken on the dates referred to in Schedule A and particular 2 above. 5. Between 1 May 2015 and 12 September 2016 the conduct of the practitioner as outlined above in Particulars 1 - 4 was contrary to: a. Clause 8.12 of the Code of Conduct for Pharmacists. b. Integrity Principle 1 of the Pharmaceutical Society of Australia ("PSA") Code of Ethics. c. Integrity Principle 2 of the PSA Code of Ethics. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. PARTICULARS OF COMPLAINT TWO 1. On 11 April 2016 the practitioner received a GP referral for a HMR at the Pharmacy for Patient B and inappropriately submitted a report to a GP confirming an appropriate HMR had occurred in circumstances where the practitioner: a. carried out a review of Patient B's medication at the Pharmacy and did not conduct a home visit; b. compiled a HMR report by populating a pre-prepared template for HMR's based on over the counter discussions with Patient B; and c. submitted the HMR report to a GP in the name of Pharmacist A. 2. On 28 April 2016, while working at the Pharmacy, the practitioner received a GP referral for a HMR for Patient C, and inappropriately submitted a report to a GP confirming an appropriate HMR had occurred in circumstances where the practitioner: a. carried out a review of Patient C's medication at the Pharmacy and did not conduct a home visit; b. compiled a HMR report by populating a pre-prepared template for HMR's based on over the counter discussions with Patient C; and c. submitted a HMR report to a GP in the name of Pharmacist A. 3. On 26 May 2016, while working at the Pharmacy, the practitioner received a GP referral for a HMR for Patient D, and inappropriately submitted a report to a GP confirming an appropriate HMR had occurred in circumstances where the practitioner: a. carried out a review of Patient D's medication at the Pharmacy and did not conduct a home visit; b. compiled a HMR report by populating a pre-prepared template for HMR's based on over the counter discussions with Patient D; and c. submitted a HMR report to a GP in the name of Pharmacist A. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy PARTICULARS OF COMPLAINT THREE 1. On 26 September 2016, the practitioner acted in a false and/or misleading manner when she informed her employer that she was suitably accredited to carry out HMR's, in circumstances where the practitioner knew or should have known that she did not hold the required accreditation. 2. On 19 October 2018, the practitioner acted in a false and/or misleading manner when she informed the Pharmacy Council ("the Council") that she had visited the homes of patients when carrying out the HMR's, in circumstances where the practitioner had not attended the homes of any patients. 3. On 19 October 2018, the practitioner acted in a false and/or misleading manner when she informed the Council that she did not receive any financial advantage from the Pharmacy for the HMRs she conducted and only received an unrelated end-of-year bonus, in circumstances where the practitioner knew or should have known this was untrue. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has i. engaged in more than one instance of unsatisfactory professional conduct of a sufficient serious nature to justify suspension or cancellation of the practitioner's registration, and ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Complaints 1 – 3 and the particulars thereof are repeated and relied upon both individually and cumulatively. 2. Each particular in Complaints 1 – 3 itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. 1. The respondent was initially represented by solicitors, but by the time the proceedings came on for hearing she was self-represented. During the course of the hearing and whilst giving sworn evidence the respondent admitted that she was guilty of each of the Complaints and the particulars thereof contained in the Application, save for Particular 2 of Complaint Three. In this regard the respondent asserted that she had visited the homes of three patients. Accordingly, this was the only factual matter which the respondent disputed and the only factual matter upon which we are required to make a decision. 2. In accordance with well-known principles which are applied in this jurisdiction in determining proceedings of this kind, we shall approach the determination of this outstanding factual matter on the basis that we must be comfortably satisfied on the balance of probabilities that it occurred. 3. We add for completeness that although the respondent conceded that she was guilty of unsatisfactory professional conduct and professional misconduct it is nevertheless incumbent upon us to make those findings based on all of the evidentiary material before us. Non-publication order 1. During the course of the hearing we made the following non-publication order: Publication of the names of persons identified in the proceedings as Patients A, B, C and D and Pharmacist A and any material which might tend to identify any such person is prohibited. The factual matrix 1. A large volume of material was tendered by the applicant during the hearing, and the respondent made certain documentary material available to us. The respondent gave oral evidence and oral evidence was also taken from a psychologist, Bianca Frahm who had examined the respondent at the request of solicitors then retained by her. The narration which follows is based upon the evidence before us, and we shall refer to such portions of it as are relevant to our determination of these proceedings. 2. The respondent gained her pharmacy qualifications in the UK. She was first registered in NSW as a pharmacist on 24 October 2001 and remained registered until her registration was suspended on 22 October 2018 by decision of the Pharmacy Council of NSW made under section 150 of the National Law. 3. The respondent was first employed at Destro's Pharmacy in 2011, initially on a part-time basis and then transitioning to a full-time basis after which she was appointed pharmacist in charge. Information furnished by Ms Silva Minassian to investigators retained by the applicant in an interview on 27 May 2019 is that she was the sole proprietor of the pharmacy. 4. During the period 2007 to 2015 a registered pharmacist known for the purpose of these proceedings as Pharmacist A was engaged by Destro's Pharmacy as an external consultant to conduct Home Medicine Reviews ("HMRs") for the pharmacy. Pharmacist A was accredited to conduct these reviews by completing a Medication Management Review Program. 5. It was agreed between the parties that we may proceed on the basis that an HMR is a clinical process that considers a patient's medicines and health in order to enhance the correct use of medications and reduce the number of adverse medicines events. An HMR is generated upon referral by a medical practitioner and is provided by a pharmacist who is appropriately accredited by way of a review conducted in the home of the patient. During the HMR interview process, the pharmacist will aim to improve the patient's understanding of his or her medication. After the initial interview, the pharmacist is required to produce an HMR report that outlines the findings of the pharmacist. This report is provided to the patient's general practitioner (even if the GP is not the referrer), and any other members of the patient's health care team as requested by the patient, including the pharmacy normally utilised by the patient. The aim of the report is to improve the understanding of the referrer of how the patient is using his or her medication and to provide recommendations that will assist the referrer and the patient in developing a medication management plan. A fee for the carrying out of the review and the preparation of the report is paid to the accredited pharmacist through Medicare. 6. It follows that an HMR can only be undertaken by a registered pharmacist who has been accredited to conduct that review, upon referral by a medical practitioner and on the basis that a report will be provided to the referring practitioner and others at the conclusion of the review. 7. In order to become accredited to conduct HMRs, the respondent completed Stage one of the Medication Management Review Program on 22 June 2015, having commenced the course in April that year, and although she had commenced Stage two, she had not completed it, and never has, and was therefore never accredited to undertake HMRs. The respondent said that it would only have taken her a few hours over the course of a few weekends in which to have completed Stage two of the accreditation process. 8. By arrangement with Ms Minassian the respondent commenced purporting to undertake HMRs in about May 2015. The respondent said that she had approached Ms Minassian to undertake these reviews as a means of generating more income for the pharmacy. This was because Ms Minassian and her husband, Hector Destro who had a managerial role in the pharmacy business, were consistently and persistently urging pharmacy staff to increase revenue and were complaining that the pharmacy was not meeting sales targets. 9. Whilst giving evidence before the delegates of the Pharmacy Council the respondent admitted that she had not notified Ms Minassian that she was not accredited to complete HMRs, although by that time she had received cash payment from Ms Minassian for doing so. 10. The respondent said that she commenced carrying out this work by selecting potential patients identified via software, known as Guidance, that was used within Destro's Pharmacy. She said that she carried out a review of the patients' medication with them at the pharmacy, save for three patients whom she visited at their home. In an interview conducted with investigative staff of the applicant on 29 April 2019, the respondent conceded that by conducting consultations with each of the patients at the pharmacy she was unable to determine the home environment in which patients stored and consumed their medication. She also conceded that many of the assessments would have constituted a "MedsCheck" only, another funded pharmacy program that is considered a more "simplistic" type of medication review. 11. When she completed the Medicare form to claim for HMR payment in the name of Destro's Pharmacy, the respondent used the name of Pharmacist A as the accredited pharmacist because that name was automatically populated electronically onto the forms used to make the claim. 12. In an interview conducted with delegates of the Pharmacy Council of NSW under section 150 of the National Law on 19 October 2018, the respondent said that prior to commencing writing HMRs in 2015 she had not read a HMR report prepared for a patient. She told the delegates that she had prepared about 200 reports between 2015 and 2016 and that there had "not always" been a referral from a GP. She then conceded that the majority of the HMR reports had not been as a result of a GP referral. She said that some of the patients knew that she was performing a report and signed a consent form. She further conceded that although her reports were not fulsome, they did contain details of the patient's medication so to that extent they represented a "MedsCheck". When asked whether she had ever visited any of the homes of these patients she said "only the ones that have known me for years". The respondent then said that there were only three such persons. She also said that it was possible that she would not have told some patients that she was completing an HMR claim for them. The patients did not receive copies of any of the reports nor would she have formally gone through any of the reports with the patients. Furthermore, none of the reports were forwarded to the patients' GPs. Copies of the HMR reports were kept at her home on the respondent's computer. 13. The forms completed by the respondent contained the names of the patients' general practitioners which she took from the patient records kept in the pharmacy. 14. The respondent's employment at Destro's Pharmacy was terminated in late 2016 after Pharmacist A complained about the respondent having completed HMRs in her name. The respondent found alternative employment as a pharmacist but was approached by Ms Minassian in 2018 to return to employment at the pharmacy. The respondent told the delegates of the Pharmacy Council that she had returned to work at Destro's Pharmacy because she preferred dealing with customers rather than processing 600 scripts a day which she had been doing with her then current employer. 15. The respondent told the delegates that she did not get paid for completing the HMRs but that she did receive a bonus at the end of the year referable to her overall work in the pharmacy. However, there is evidence, accepted by the respondent, that she received payment in cash of $100 from Ms Minassian for each of the HMRs which she had submitted to Medicare for payment to Destro's Pharmacy. These cash payments commenced in February 2016. 16. The respondent also conceded in response to evidence produced by Destro's Pharmacy that no medical practitioner referrals had been initiated for any of the HMRs which she had purported to undertake. 17. During the course of her interview with the delegates the respondent asserted that she was under considerable pressure from Ms Minassian to increase revenue. It was her idea, in consultation with Ms Minassian, to commence the HMR process as a means of generating more revenue for the pharmacy. Notwithstanding that Ms Minassian disputed this in interviews with investigators employed by the applicant, the respondent has made available copies of some email communications from Ms Minassian dated 8 April 2013, 2 and 8 September and 4 December 2014, 1 January 2015 and 21 September 2016, which variously referred to dwindling customer numbers, concerns about the ability to pay staff, the possibility of reducing staff, the need to increase sales in particular by evaluating whether customers needed further products, the need to improve performance, and the need for better communication with customers. 18. There is in evidence a copy of an email from the respondent to Ms Minassian dated 19 April 2015, in which she informed Ms Minassian that she had found out that the pharmacy was allowed to conduct 20 rather than 10 HMRs each month and that this would provide "an extra $4000 a month!" 19. When giving evidence before the delegates of the Pharmacy Council the respondent said that she had commenced undertaking the HMRs in order to bring more money into the pharmacy and become a more "valuable person" to her employer. 20. Shortly after the respondent was informed in October 2018 that the applicant had commenced investigations following receipt of a complaint, the respondent through solicitors then retained by her wrote to the Pharmacy Council of NSW referring in general terms to an allegation that the respondent whilst not appropriately accredited had processed 197 submissions for payment for HMRs processed under the name of Pharmacist A between 2014 and 2016 and stating that the respondent "accepts full responsibility" for that conduct. That letter also stated that the respondent was "remorseful" for her conduct. The home visits 1. After becoming aware of investigations being conducted by the applicant Ms Minassian retained a firm of solicitors, Uther Webster & Evans, to assist her in preparing an audit of all of the HMR claims which have been completed by the respondent and for which payment had been received by Destro's Pharmacy. Those solicitors assisted in approaching general practitioners nominated on the HMR forms as having requested a referral. As at 14 December, 2018 the solicitors advised the Pharmacy Council that at that stage approximately 40% of the general practitioners had been approached and had confirmed that they had not forwarded any referrals for the conduct of a HMR. The solicitors attached a schedule of 129 patients. It revealed the date upon which the review was purportedly undertaken, the name of the referring doctor, the name of the patient, whether a referral had been made and a HMR report received and comments following contact with the patients. It is not necessary to examine the contents of the schedule further in view of the concessions made by the respondent. 2. The respondent said that she had visited three patients at home and was able to identify them by name. One of the patients named by her is known as Patient A. However, there is no record of any claim having been made by the respondent on behalf of Destro's Pharmacy for payment for a HMR having been prepared for this patient, and the circumstances of this patient are not part of the proceedings before us and are not relied upon by the applicant. Accordingly, whether or not the respondent attended upon this person at her home is irrelevant for the purpose of these proceedings. 3. The respondent identified two other patients by name, each of whom is named in the schedule. 4. Patient C, a male, was purportedly seen on 23 May 2016. This was said to be the subject of a general practitioner referral on 21 April 2016. A report was not sent to the GP until 16 October 2016 with a notation "unable to read". Both the daughter and the wife of the patient stated that no home visit was made. 5. Patient D, a female, was purportedly seen on 22 April 2016. A referral had been made by the general practitioner and a HMR report was received. The doctor informed the solicitors that the report was unhelpful and that he did not act on any of its recommendations. 6. There is in evidence a copy of the reports prepared by the respondent for each of Patients C and D. 7. With respect to Patient D under the heading "Issues and Recommendations" the following appears: Activity (patient by name) uses 50 plus SPF and wears a hat whenever she is outside, especially when gardening Sleep Not good, 6 to 7 hours of broken sleep, due to frequency of empting (sic) of ladder each night. Does have the tendency to nap throughout the day (2 naps 30 to 60 minutes) Diet Does have 5 small regular meals every day plus snacks. Has been eating less dairy products and wheat recently Alcohol Has been having 2 to 3 beers at lunchtime for the last 62 years Health Professionals Good compliance in seeing all specialists including Dr Stewart (her surgeon) and dermatologist – for persistent skin rash 1. The letter prepared by the respondent to be forwarded to this patient's general practitioner notes that the patient was born on 22 December 1972. It would have been physically impossible for her to have consumed 2 to 3 beers at lunchtime for the last 62 years. 2. With respect to patient C under the heading "Issues and Recommendations" the following appears: Activity (patient by name) uses 50 plus SPF and wears a hat whenever he is outside, especially when gardening Sleep Not good, 6 to 7 hours of broken sleep, due to frequency of empting (sic) of ladder each night. Does have the tendency to nap throughout the day (2 naps 30 to 60 minutes) Diet Does have 5 small regular meals every day plus snacks. Has been eating less dairy products and wheat recently Alcohol Has been having 2 to 3 beers at lunchtime for the last 62 years Health Professionals Good compliance in seeing all specialists including regular eye and skin cancer specialists. 1. It will be seen that the information contained with respect to each of these patients under all of the headings other than "Health Professionals" is identical save for the reflection of gender. This information would seem to be more pertinent to Patient C whose date of birth is shown as 15 November 1933. Curiously, the report for Patient D predates that of Patient C. 2. In the course of giving sworn evidence during the hearing the respondent said that she had never attended the home of Patient A. She said she remembered visiting Patient D whose mother was present and who was making remedies for the patient's cough by boiling onions. However, when her attention was directed to the similarities of the information contained in the reports of both patients C and D, the respondent conceded that she could not have obtained that information with respect to Patient D. Nevertheless, she maintained that she had attended the home of this patient. 3. In view of the denial of the family members of Patient C given to the solicitors retained by Ms Minassian that the respondent had attended upon him, and in view of the concession by the respondent that the information contained in the form concerning Patient D is clearly incorrect, we are not persuaded that the respondent did in fact attend upon either of these patients at their home. There is prima facie evidence provided by the applicant that she did not do so. Although it is only necessary that the respondent displace this prima facie position by providing such evidence that would enable her to satisfy us on the balance of probabilities, we are not so persuaded in all the circumstances. Our conclusion is reinforced by the general tendency of the respondent to attest to circumstances which were not truthful or accurate, as is demonstrated by the underlying factual circumstances applying throughout these proceedings. Particular 5 of Complaint One 1. Particular 5 of Complaint One alleges that the respondent's conduct breached certain provisions of the Code of Conduct for Pharmacists and the PSA Code of Ethics. 2. In summary, the provisions referred to provide as follows; 1. Clause 8.12 of the Code of Conduct for Pharmacists requires practitioners to be honest and transparent in financial arrangements with patients or clients. Practitioners are precluded from exploiting the vulnerability or lack of knowledge of patients or clients when providing or recommending services 2. Integrity Principal 1 of the PSA Code of Ethics requires that pharmacists act with honesty and integrity to maintain public trust and confidence in the profession 3. Integrity Principal 2 of the PSA Code of Ethics requires that pharmacists only practise under conditions which uphold the professional independence, judgement and integrity of themselves and others. 1. The applicant asserted, and the respondent did not deny that the respondent's conduct the subject of the complaints detailed in the application constituted a breach of each of the above provisions of these Codes. For reasons which we shall shortly set out, we agree with the applicant's submission in this regard. We note that we are entitled to take into account breaches of these Codes in determining that the respondent has been guilty of misconduct as alleged by the applicant. Is the respondent guilty of professional misconduct? 1. The applicant alleges that by reason of Complaints One, Two and Three the respondent should be found guilty of unsatisfactory professional conduct and by reason of Complaint Four, the more serious form of misconduct, professional misconduct. We have determined to find that the respondent is guilty of professional misconduct as conceded by her, and we now set out our reasons for so finding. 2. Professional misconduct is defined in the National Law as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than One instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. This definition in turn refers to the definition of unsatisfactory professional conduct which is found in section 139B of the National Law. We reproduce hereunder that part of that definition which is relevant to our consideration of these proceedings: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. It is clear, that the conduct of the respondent constitutes unsatisfactory professional conduct. The conduct of the respondent which is the subject of each of the Particulars of Complaints One, Two and Three is such that we are comfortably satisfied that in the aggregate all of these matters constitute unsatisfactory professional conduct because it constitutes both improper and unethical conduct relating to the practice and purported practice of the respondent's profession as a pharmacist. It is not necessary that we discuss the nature and extent of the respondent's misconduct in any detail. Firstly, the respondent has substantially conceded her misconduct, and we have found proven the one area in contention. Secondly, the mere recitation of the factual circumstances as outlined in the particulars of these Complaints is enough per se to indicate that the respondent's conduct was both improper and unethical. The respondent's conduct extended over a period of approximately 16 months during which the respondent made 129 false and misleading claims to Medicare, in doing so she falsely and inappropriately used the identity of Pharmacist A as the author of the purported reviews without the knowledge or consent of Pharmacist A, and in doing so ultimately accepted and received an inappropriate financial advantage from her employer consisting of a cash payment of $100 for each HMR purported to have been undertaken. All of this conduct was contrary to the Codes of Conduct and Ethics which we have referred to above. In addition, the respondent provided false and misleading information to three referring general practitioners as particularised in Complaint Two. Finally, the respondent acted in a false and misleading manner in informing her employer that she was appropriately accredited to carry out the HMRs, and in informing delegates of the Pharmacy Council of NSW that she had visited the homes of patients and that she had not received any financial advantage, save for an unrelated annual end of year bonus as particularised in Complaint Three. 2. It is now necessary to determine whether the respondent is guilty of professional misconduct as asserted by the applicant. By reason of the definition contained in section 139E which we have set out above, it is necessary to determine whether the unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or there is "more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration". 3. This directs attention to a consideration of those circumstances which would justify suspension or cancellation of registration. Whilst this involves the exercise of a value judgement having regard to all of the relevant factual circumstances, it must be undertaken in the context of the statutory regime which applies to these proceedings. 4. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been succinctly referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other members of the pharmacy profession. 2. We regard the nature and extent of the misconduct of the respondent which we have already characterised as unsatisfactory professional conduct as being so serious, in the aggregate, that it is incompatible with the integrity and honesty that the public is entitled to expect of a registered pharmacist, and that it should be characterised as professional misconduct within the definition set out above. 3. As we have previously indicated, the respondent at all times said that she engaged in this course of conduct solely because she wanted to assist her employer, and to demonstrate to her employer that she was a valuable employee. Although there is evidence that Ms Minassian denied that she and her husband had put any inappropriate pressure on the respondent and other employees to improve their performance, the several email communications from Ms Minassian to the employees of the pharmacy which we have previously referred to, do corroborate that the respondent was entitled to have some concerns for the financial viability of the pharmacy and the need to be proactive in increasing sales. However, conduct of the kind which the respondent engaged in and which was clearly inappropriate, if not unlawful, can never be justified on the basis that the respondent was intending to assist her employer. Furthermore, the respondent did enjoy financial gain from her misconduct, so that it cannot be said that the desire to assist the employer could have been the only motivating factor, at least from February 2016 when payments were initially made to the respondent. 4. In addition, the misconduct of the respondent was exacerbated by the false information which she provided to the Pharmacy Council of NSW, and the potentially compromised health and safety of those patients for whom a HMR should have been carried out. Protective orders 1. We now consider what protective orders should be made consequent upon the findings which we have made. The available protective orders are set out in section 149C of the National Law the relevant parts of which are: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. Before considering what protective orders should be made, it is necessary to review what has been said by the respondent to explain her misconduct, and certain additional material which has been put before us by her. 2. The respondent made available a report of a clinical psychologist, Bianca Frahm, dated 17 January 2019 who had been qualified by the respondent's then solicitors. Ms Frahm interviewed the respondent on one occasion only, namely 11 December 2018. In her report Ms Frahm said in part: Ms Kaur was unable to explain her reasons for violating the regulations, she expressed regret and sadness and appeared genuinely shocked and confused about her behaviour. She was emotionally invested in the business and customers, cared about employees and the business owner and viewed the income generated from the service as important to the business sustainability. 1. Ms Frahm diagnosed the respondent as suffering from an adjustment disorder with anxiety and depressed mood. She thought that it was possible that the respondent has suffered from a lack of "work – life balance in combination with the stressful work conditions and other stressors" which had led her to overestimate her level of responsibility for the success of the pharmacy business. She recommended that the respondent undertake cognitive behavioural therapy to resolve her condition and to minimise the risk of recidivism. 2. During the course of giving evidence Ms Frahm was informed that the respondent had failed to inform her that she had received a financial benefit from her course of conduct. Upon being informed of this she said that she was no longer prepared to express an opinion as to the likely cause of the respondent's conduct and the means which might be taken to address her misconduct. On this basis, the opinion of Ms Frahm is of no assistance in determining why the respondent engaged in the course of action which has constituted the professional misconduct which we have found has been committed by her, and in assisting us in understanding whether she is likely to engage in conduct of this kind again. 3. The respondent tendered two character references. One is from a person who has professed to know the respondent for over 20 years and attests to her knowledge of pharmaceutical products and her commitment to her profession. However, that reference makes no mention of the circumstances pertaining to the misconduct of the respondent and is therefore of little assistance in assessing the respondent's character for the purpose of these proceedings. The second reference is given by a pharmacist who has worked with the respondent and makes reference to the respondent's "tremendous error in judgement, looking out for those who place trust in her whilst overstepping an obvious line". Whilst this reference also attests to the respondent's professionalism and overall good character, there is no indication that the referee has been provided with an understanding of the overall extent of the respondent's misconduct, and therefore provides limited assistance to us. 4. Pharmacists play an important and integral part in the provision of health care in New South Wales. They have a substantial role in ensuring that medication is prescribed and dispensed in a manner which enhances the health and safety of the public. Pharmacists are required to act at all times in a professional manner with the utmost integrity. Not only do members of the public rely on that professionalism and integrity, but other health practitioners and government are also dependent on these traits and characteristics being fulfilled at all times. The summary of the misconduct of the respondent which we have set out above indicates that she has failed to conduct herself with the professionalism and integrity that the community is entitled to expect of a registered pharmacist. Her motivation for doing so is unclear. Although the respondent has declared that she is remorseful for what has occurred, this of itself can never excuse engaging in misconduct of this kind. 5. We conclude that the nature and extent of the professional misconduct in which the respondent engaged is such that it is incompatible with her right to continue as a registered pharmacist. On this basis it is appropriate that the respondent's registration be cancelled. 6. Under section 149C(7) of the National Law it is appropriate that we fix a period during which the respondent should not be permitted to apply for a review of our decision to cancel her registration. Such a period should be fixed by reference to a period which is suitable to allow the respondent to take such action which is available to her in order to demonstrate that she will not engage in further misconduct again should she again become registered as a pharmacist. The respondent informed us that she has not sought to engage with a psychologist or any other person to determine the reason why she embarked upon the course of action which is at the heart of these proceedings, and to seek assistance to ensure that there will be no likelihood of recidivism in the future. In the circumstances it is difficult to assess what period should appropriately be fixed. We approach this assessment on the basis that if the respondent wishes to seek to be registered again as a pharmacist she will in all likelihood need to seek some form of professional assistance to gain some insight into her conduct and to facilitate some form of rehabilitative process. We would think, in the circumstances, that a period of 18 months would be an appropriate minimum period to allow for this to occur. We propose to make an order to this effect accordingly. Costs 1. This is a costs jurisdiction and the applicant sought an order for the payment of its costs. The respondent agreed in principle that a costs order should be made. The respondent expressed concerns about her ability to pay. We note that impecuniosity does not constitute a valid reason for refusing a costs order. We note that there are no circumstances which would disentitle the applicant from seeking a costs order, and we propose to make an order accordingly. Orders 1. Consequent upon the finding that the respondent is guilty of professional misconduct we make the following orders: 1. the registration of the respondent as a pharmacist is cancelled 2. the respondent is precluded from making any application for review of the cancellation of the registration for a period of 18 months from this date 3. the respondent is to pay the costs of the applicant assessed in default of agreement 4. we ask the Registrar to notify the Pharmacy Council of NSW and the Australian Health Practitioner Regulation Agency that we have made orders (1) and (2) above. ********* I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 29 July 2020