Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Young [2020] NSWCATOD 138 Hearing dates: 16 November 2020 Date of orders: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member A Torrens, Senior Member M Cross, Senior Member M Maher, General Member Decision: (1) The registration of the respondent Albert Joshua Young as a pharmacist is cancelled. (2) This Tribunal is the appropriate review body. (3) In application for review of this decision shall not be made for a period of 4 years from this date. (4) The respondent is to pay the costs of the applicant assessed in default of agreement. Catchwords: PROFESSIONS AND TRADES – pharmacist unlawfully acquired subsidised products under NDSS on behalf of persons not registered for that purpose, falsely using the names of registrants without their knowledge or permission – pharmacist continued to work as such even though registration suspended – pharmacist gave false and misleading information to HCCC and Pharmacy Council of NSW – finding of professional misconduct – registration cancelled – costs order made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 64 Health Practitioner Regulation National Law (NSW) ss 41,139B,139E,149C,163A,cl13 Schedule 5D Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 339 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Albert Joshua Young (Respondent) Representation: Counsel: S Maybury (Applicant) Solicitors: Health Care Complaints Commission (Applicant) No appearance (Respondent) File Number(s): 2020/00121573 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), a non-publication order is made with respect to the names of the persons referred to in the proceedings as Persons A and C and any information which may tend to identify such persons. reasons for decision Background 1. In these proceedings the applicant, the Health Care Complaints Commission (HCCC) seeks findings of unsatisfactory professional conduct and professional misconduct as those terms are defined in the Health Practitioner Regulation National Law (NSW) ("the National Law") against the respondent Albert Joshua Young. The proceedings arise out of the conduct of the respondent who was a registered pharmacist whilst employed to work at two pharmacies. 2. The complaints brought against the respondent as detailed in the Application filed in this Tribunal are in the following terms; The Health Care Complaints Commission ("Commission") of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of NSW ("Council") 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 Mr Albert Joshua Young ("the practitioner") (address omitted) being a pharmacist registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a pharmacist in 2013. Between February 2018 and 12 April 2019 the practitioner was employed as a pharmacist on a casual basis two days per week at Minetts Pharmacy ("the Pharmacy"). During this time the practitioner was also employed as a locum pharmacist at Pharmacy 4 Less Revesby ("Pharmacy 4 Less") and at other pharmacies in Sydney on a casual basis. The diabetic products referred to in this Complaint were obtained by the practitioner through the National Diabetes Subsidy Scheme ("NDSS") and are products used by diabetic patients, namely 'testing strips' of various brand names, which are commonly used to test blood glucose levels. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1) (I) 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. The practitioner engaged in the practice of pharmacy on 31 occasions between 27 May 2019 and 13 August 2019 as set out in Schedule A to this Complaint in circumstances where the practitioner's registration was suspended from 24 May 2019 arising from section 150 proceedings conducted by the Council. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(I) 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. The practitioner inappropriately ordered diabetic products through the National Diabetes Services Scheme ("NDSS") at the Pharmacy in addition to products legitimately requested by NDSS registrants when he: a. inappropriately removed the stock from the Pharmacy on approximately 20 occasions. 2. The practitioner inappropriately ordered diabetic products through the NDSS at the Pharmacy using the NDSS Registration Number of two NDSS Registrants, Person A and Person B, on four occasions, without their knowledge or consent. 3. The practitioner inappropriately ordered diabetic products through the NDSS at Pharmacy 4 Less using the NDSS Registration Number of two NDSS Registrants, Person A and Person C, on two occasions, without their knowledge or consent. 4. The conduct of the practitioner was contrary to:- a. Clause 1.2 of the Pharmacy Board of Australia's Code of Conduct ("the Code of Conduct"), b. Clause 3.4 of the Code of Conduct, c. Clause 8.1 of the Code of Conduct. 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 15 May 2019 the practitioner provided a false and/or misleading statement to the Commission when he stated in his written response to the complaint that he had inappropriately ordered diabetic products in addition to products legitimately requested by NDSS registrants at the Pharmacy (conduct particularised in Complaint Two, particular 1), in circumstances where the practitioner did not disclose that he had also engaged in such inappropriate conduct while working at Pharmacy 4 Less. 2. On 15 May 2019 the practitioner provided a false and/or misleading statement to the Commission when he stated in his response to the complaint that he had inappropriately ordered diabetic products through the NDSS using the NDSS registration number of Person A and Person C without their knowledge or consent and without either of these registrants placing orders for those products (conduct particularised in Complaint Two, particular 2) on only one occasion, in circumstances where the practitioner did not disclose that he had also engaged in such inappropriate conduct while working at Pharmacy 4 Less. 3. On 15 May 2019 the practitioner provided a false and/or misleading statement to the Council at the section 150 hearing when he stated that he had inappropriately ordered diabetic products through the NDSS by using the NDSS Registration Number of Person A, Person B and Person C without their knowledge or consent on one further occasion (conduct particularised in Complaint Two, particulars 1 and 2), in circumstances where the practitioner had also used the NDSS Registration Number of Person A, without her knowledge or consent, to order diabetic products through the NDSS on at least four occasions. 4. On 5 September 2019 the practitioner provided a false and/or misleading statement to the Commission when he stated that he had not sold any product on Amazon Australia since 27 May 2019 and ceased being listed as an online seller at this time, in circumstances where evidence obtained from the Australian Securities Investment Commission ("ASIC") reflects that the practitioner continued to sell items on Amazon Australia from 27 May 2019. COMPLAINT FOUR The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has 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. 1. At the commencement of the proceedings we made a non-publication order with respect to the names of the persons referred to in the proceedings as Persons A and C and any information which may tend to identify such persons. 2. The respondent has never participated in the proceedings. He has never filed any documents including any evidentiary material, nor did he participate in the hearing. He had previously retained solicitors on his behalf who informed the Tribunal on 13 November 2020 that they no longer represented the respondent, that he no longer wished to be registered as a pharmacist and that he would not be participating in the hearing. The respondent received a copy of that communication. 3. It is well-established that the burden of proof in these proceedings lies on the applicant, and that, because of the nature of the proceedings, the evidentiary burden is higher than the civil onus, reflecting what has come to be known as the Briginshaw principle (see Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 339). For present purposes we proceed on the basis that we must be "comfortably satisfied" on the balance of probabilities that the Complaints and Particulars thereof have been established. The evidentiary background 1. The applicant tendered into evidence a large volume of documentation. We shall refer to relevant portions of this material when dealing with each of the Complaints levelled against the respondent and the particulars thereof. 2. The respondent was first registered as a pharmacist on a provisional basis on 6 December 2012 and became registered on a general basis on 20 December 2013. His registration was suspended on 23 May 2019 by the Pharmacy Council of NSW pursuant to the provisions of section 150 of the National Law. In a written decision dated 22 May 2019, delegates of that Council determined that by reference to complaints of misconduct which, in general terms, reflected the substance of the complaints with which we are dealing the respondent's registration should be suspended with effect on 23 May 2019 because he posed a risk to the safety or health of the public and in addition the public interest warranted such action being taken. The reasons for that decision are in evidence before us as is a copy of the transcript of evidence of those proceedings which include oral testimony given by the respondent to the delegates. 3. In addition, the respondent furnished to the applicant certain information in writing either directly or through solicitors then retained by him, which information is also in evidence before us. 4. By way of background the evidentiary material establishes that the respondent was employed on a casual basis by Minetts Pharmacy between February 2018 and 12 April 2019. His employment at that pharmacy was terminated on 12 April 2019 after his employer discovered that he had engaged in conduct in the nature of that particularised in Complaint Two referable to that pharmacy. He was also employed as a locum pharmacist at Pharmacy 4 Less during this period, and subsequently. The complaints brought against the respondent 1. We now come to consider each of the complaints and particulars thereof contained in the Application. Complaint One 1. There is in evidence before us material which confirms that between 27 May and 13 August 2019 the respondent worked on 31 occasions in a Pharmacy in Penrith, NSW. Part of the evidence consists of tax invoices created by the respondent with respect to the work performed by him at that pharmacy using the name "beanpharma@gmail.com". There is corroborative evidence given by the respondent that he used that name not only for the purpose of providing invoices for work performed by him but also on a website conducted by Amazon Australia on which he sold general and other pharmaceutical products as well as the products which are the subject of Complaints Two and Three. He used the trading name BeanPharmaAus. 2. By way of explanation given in response to an enquiry from the applicant the respondent explained why he had continued to work as a pharmacist although his registration had been suspended. He said that he was "in shock and disbelief" on being informed of his suspension effective from 23 May 2020. He said: I knew that I was not allowed to work as a pharmacist that I was not sure what I was to do. No one I knew had experienced this before so I didn't have anyone to turn to for emotional support. I had not even told my wife of the initial complaint, only that I had lost my job at Minett's Pharmacy back in April. During that time, my wife was 3 months pregnant with our first child and she was already highly stressed about me losing my job. Her worry and mine was that in 5 months' time, she would be going on maternity leave, which could leave us in financial strain. As a result of the shock of the suspension, my worried wife and the upcoming financial strain, it led to my extremely irresponsible and reprehensible decision to not tell my wife about the section 150 outcome and to work at (the Penrith pharmacy) even though my registration was suspended. 1. We are comfortably satisfied on the basis of this evidence that this Complaint has been made out. Complaint Two 1. The products referred to in this Complaint are used by diabetics to test glucose levels. They are available without a prescription, but those which are ordered through the NDSS are subsidised or available at no cost. Diabetic patients are registered with the scheme. General or concessional patients pay a co-payment for their strips even if they are claimed through the NDSS. Safety Net (SN) card holders obtain their NDSS strips free of charge. In evidence given at the section 150 investigation the respondent said that he commenced purchasing these products for persons who were not registered under the scheme as a result of receiving enquiries on behalf of persons who lived overseas and who had noticed that it was cheaper to buy these products in Australia than in their home countries. He said that in order to provide these products cheaply he fraudulently used the registration of a person already registered with the NDSS scheme. 2. In response to a request for information from the applicant the respondent wrote that he supplied some of this product which he had legitimately ordered for the patients of the pharmacy as well as those ordered using the registration of someone else, but denied that he sold them for a profit. He said that he did not initially think that he was defrauding anyone by this conduct, but realised that he was in fact defrauding the scheme by acquiring subsidised product using the name of a registered person, which product he intended to provide to persons who were not registered. 3. The respondent conceded that although his employment with the Minett pharmacy had been terminated on 12 April 2019 for this conduct, he had again engaged in this activity on 2 May 2019 whilst working for another pharmacy in order to complete an outstanding order to provide the product to a family overseas, using the details of a pharmacy assistant who was a registered diabetic. 4. In his evidence given during the section 150 enquiry the respondent was vague as to the quantum of product which he had supplied, and the number of persons to whom he had supplied it. He said that much of it was sent overseas. There is in evidence before us information provided by Australia Post indicating that the respondent forwarded 17 packages overseas between 1 February 2019 and 30 May 2019 either in his name or in the name of his trading entity, BeanPharmaAUS. He also agreed in evidence that he had supplied about 20 packages of the product which had been obtained using details of persons who were NDSS registrants. 5. The respondent did concede in the course of that hearing that he had used the NDSS registration details of 2 registrants on 4 occasions without their knowledge or consent in order to obtain the product at the discounted price. 6. We are comfortably satisfied to the requisite standard that Particulars 1(a), 2 and 3 of Complaint Two have been established. 7. Particular 4 relies on breaches of the Code of Conduct established by the Pharmacy Board of Australia. By section 41 of the National Law we are entitled to take into account the provisions of that Code in assessing the conduct of the respondent. 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. We set out below relevant extracts from that Code: 1.2 Professional values and qualities While individual practitioners have their own personal beliefs and values, there are certain professional values on which all practitioners are expected to base their practice. These professional values apply to the practitioner's conduct regardless of the setting, including in person and electronically, e.g. social media, e-health etc. Practitioners have a duty to make the care of patients or clients their first concern and to practise safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients or clients also rely on practitioners to protect their confidentiality. 3.4 Confidentiality and privacy Practitioners have ethical and legal obligations to protect the privacy of people requiring and receiving care. Patients or clients have right to expect that practitioners and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations. Good practice involves: treating information about patients or clients as confidential and applying appropriate security to electronic and hard copy information seeking consent from patients or clients before disclosing information, where practicable being aware of the requirements of the privacy and/or health records legislation that operates in relevant states and territories and applying these requirements to information held in all formats, including electronic information sharing information appropriately about patients or clients for their healthcare while remaining consistent with privacy legislation and professional guidelines about confidentiality where relevant, being aware that there are complex issues relating to genetic information and seeking appropriate advice about disclosure of such information providing appropriate surroundings to enable private and confidential consultations and discussions to take place ensuring that all staff are aware of the need to respect the confidentiality and privacy of patients or clients and refrain from discussing patients or clients in a non-professional context complying with relevant legislation, policies and procedures relating to consent using consent processes, including formal documentation if required, for the release and exchange of health and medical information, and ensuring that use of social media and e-health is consistent with the practitioner's ethical and legal obligations to protect privacy. 8.1 Introduction In professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct. The guidance contained in this section emphasises the core qualities and characteristics of good practitioners outlined in Section 1.2 Professional values and qualities. 1. There is an emphasis in the extracts set out above on the professionalism expected of pharmacists in the community. Honesty, integrity, trustworthiness and truthfulness are all hallmarks of this professionalism. 2. The conduct of the respondent set out in particulars 1, 2 and 3 of this Complaint is contrary to the provisions of the Code. 3. It follows that we are comfortably satisfied to the requisite standard that the particulars of Complaint Two have been made out. Complaint Three 1. The particulars of this Complaint are directed to false or misleading statements said to have been made by the respondent to both the Pharmacy Council and the applicant with respect to the allegations of misconduct which had been made against him. 2. Particulars 1 and 2 refer to a statement made by the respondent to the applicant dated 15 May 2019. In later correspondence to the applicant the respondent conceded that he had originally omitted the information referred to in these particulars. He said that information contained in a statement by a colleague whose details he had used to access the NDSS facility had prompted his recollection that the information provided was not correct. The respondent conceded that whilst working at the Minett pharmacy on 4 occasions, he had ordered diabetic products through the NDSS Registration number of 2 NDSS Registrants when neither of those persons had placed orders for those products nor given him authority to order those products on their behalf. Furthermore, he had ordered diabetic products whilst working at Pharmacy for Less using the NDSS Registration number of 2 NDSS Registrants when neither of those persons had placed orders for those products nor given him authority to order those products on their behalf. The respondent subsequently provided a supplementary statement correcting these errors. 3. Particular 3 refers to information given by the respondent at the section 150 hearing on 15 May 2019. The respondent conceded in later correspondence that he had misled the Council during the hearing by failing to inform the delegates that he had used the NDSS Registration number of one person on at least 4 occasions and of another person on at least one occasion. 4. With respect to particular 4, on 5 September 2019 solicitors acting for the respondent replied to a request for information made by solicitors for the applicant pursuant to section 34A of the National Law requesting information concerning details of products sold through the respondent's trading account with Amazon Australia. The applicant was informed by the solicitors that during the period 23 May to 1 August 2019 only one box of each product had been sold and that no items had been sold on that website since 27 May 2019. Amazon Australia informed the applicant on 3 October 2019 that BPharmAus had sold a number of products through its facilities during the period 27 October 2018 to 14 September 2019. Amazon Australia identified glucose strips product as having been sold on that website on 25 May 2019 and 1 June 2019.The information provided by the solicitors on behalf of the respondent was clearly false and misleading. 5. We are comfortably satisfied to the requisite standard that the particulars of Complaint Three have been made out. Complaint Four 1. This complaint asserts that by reason of the matters contained in Complaints 1 to 3 the respondent is guilty of the more serious misconduct of professional misconduct. We now consider this matter. 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, 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— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (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 from the factual matters contained within the Complaints which we have found proven that in carrying on his profession as a pharmacist the respondent engaged in a number of unlawful and unethical activities. He procured a number of products the costs of which are subsidised ultimately by government. In order to achieve this, he deliberately accessed a facility using the registration numbers on a number of occasions of 3 persons who were NDSS registrants. He did so without the knowledge or consent of those persons. Furthermore, the respondent provided false and misleading statements to the applicant whilst it was carrying out its investigation of his activities and to the Pharmacy Council of NSW whilst it was conducting an enquiry under section 150 of the National Law. Notwithstanding that the respondent's registration was lawfully suspended on 22 May 2019 with effect the following day he knowingly unlawfully continued to be employed as a pharmacist on 31 occasions between 27 May and 13 August 2019. 2. In so conducting himself the respondent behaved in an unlawful and unethical manner. He failed to display qualities of integrity, truthfulness, and dependability as required by the Code. He breached the confidentiality of those clients of the pharmacies who were NDSS registrants. We have no hesitation in concluding that the misconduct of the respondent which we have found to have occurred is significantly below the standard expected of any pharmacist, including a pharmacist of an equivalent level of training and experience of the respondent in terms of his lack of knowledge, skill and judgment and the lack of care exercised by him. Furthermore, he engaged in improper and unethical conduct in the purported practice of his profession. We find that the respondent is guilty of unsatisfactory professional conduct as that term is defined in the National Law. 3. 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. 1. 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. 2. 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 misconduct of the respondent as found by us as we have described it in its totality as constituting professional misconduct, and unworthy of the privilege and entitlement of practising the respondent's profession as a pharmacist. It is hopefully not necessary that we need engage in any further detailed examination of the respondent's behaviour in the context of the practice of an honourable profession. It is sufficient to conclude that by reason of his misconduct the respondent is not a fit and proper person to be registered as a pharmacist and that cancellation of his registration would be justified in all the circumstances. 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. For completeness, we set out part of the provisions of section 163A of the National Law dealing with an application for review referred to in subsection (7) of section 149C: 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of— (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. 1. For the purposes of section 163A, a relevant order includes an order made by this Tribunal cancelling the registration of a health practitioner. By section 163A(3) an application for review may not be made while the terms of the order provide that an application for review may not be made. Such an order is that which is contemplated by section 149C(7). 2. There is a useful discussion of the circumstances in which cancellation of registration is available in the judgement of Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186. At [19] and following his Honour said: The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing[17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided. 1. We do not have the advantage in determining what appropriate protective orders should be made in these proceedings of any contemporary information provided by the respondent. In September 2019 the respondent provided what we understand to be a "submission" to the applicant explaining the reasons why he embarked upon the course of conduct which is at the heart of these proceedings. He referred to the "extreme emotional stress" experienced by his wife when he told her of the loss of his job at the Minett pharmacy at a time when she was pregnant with their first child. He said he felt pressured to fulfil his duties as breadwinner which caused him to exercise a lack of judgement in continuing employment as a pharmacist whilst suspended. He said that he had recently completed a program in ethics and had formally apologised to his former employer. Furthermore, he was then intending to see a clinical psychologist. 2. There is included in the evidence tendered by the applicant a report concerning the respondent of Grace Canales psychologist dated 16 December 2019. When initially seen on 23 September 2019 she diagnosed him as suffering from moderate depression and "stress" with mild anxiety. As at the date of the report Ms Canales noted that the respondent was making progress and was then suffering from a "moderate level of psychological distress." She thought that the respondent understood that his actions were "wrong", however "he wanted to help people in need and did not realise the consequences it would bring to him." Ms Canales expressed the opinion that the respondent's behaviour was unlikely to re-occur as he wanted to set a good example for his young son. Ms Canales suggested that the respondent undergo treatment of a further 5 sessions, but there is no evidence before us that that he did so. 3. Having regard to each and every one of the deficiencies in the respondent's character which we have identified, and each and every instance of the several types of misconduct in which the respondent engaged, in their totality we conclude that they compel cancellation of the registration of the respondent as a pharmacist. Beyond the bald assertions made by the respondent in correspondence in answer to the complaints raised by the applicant, there is no information available to us that demonstrates that he has real insight into the nature and extent of his misconduct, and that he has expressed contrition beyond essentially feeling sorry for his own predicament. Furthermore, there is no appropriate information made available to us that would indicate that in some way the respondent has undertaken some form of rehabilitation process which would make it unlikely that he would reoffend. Cancellation of registration reflects the seriousness of the respondent's professional misconduct, the potential harm to the health and safety of the public which he has caused, will provide an appropriate deterrent to him should he seek and obtain reregistration, will provide a deterrent to other pharmacists who may be tempted to misconduct themselves in the same or similar manner, and will enhance the confidence of the public in the integrity of the profession of pharmacy. 4. Although the respondent has said that he will not seek to practice as a pharmacist in the future, it is appropriate that we give consideration to the fixing of an appropriate period of disqualification for registration under section 149C(4)(b). Such a period is usually fixed by reference to such time during which the practitioner might have an opportunity to engage in an appropriate rehabilitation process designed to allow him to again apply for registration. On one view, given the respondent's professed intention it is unnecessary to fix a time period. However, lest the respondent change his mind, we conclude that a period of 4 years would be appropriate in all the circumstances, to allow him to engage in an appropriate reflective process and demonstrate fitness and suitability to again be registered as a pharmacist. Costs 1. The applicant sought a costs order in its favour. The question of costs is governed by clause 13, Schedule 5D of the National Law, which renders this as a costs jurisdiction. In the circumstances it is appropriate to make a costs order in favour of the applicant, there being no circumstances which would disentitle the applicant to such an order. Orders 1. Consequent upon the finding of professional misconduct which we have made we make the following orders; 1. The registration of the respondent Albert Joshua Young as a pharmacist is cancelled. 2. This Tribunal is the appropriate review body. 3. An application for review of this decision shall not be made for a period of 4 years from this date. 4. The respondent is to pay the costs of the applicant assessed in default of agreement. ********** 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: 27 November 2020