Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 Hearing dates: 14 July 2021 Date of orders: 6 September 2021 Decision date: 06 September 2021 Jurisdiction: Occupational Division Before: The Hon J Boland AM, Deputy President J Ludington, Senior Member P Murney, Senior Member J Barker, General Member Decision: 1. Pursuant to s 149C (1) of the Health Practitioner Regulation National Law (NSW) (the National Law) the registration of ZXY (the practitioner) is cancelled. 2. Pursuant to s 149C (7) of the National Law the practitioner may not apply for a review of Order 1 for a period of four years from the date of these orders. 3. The practitioner is to pay the costs of the Health Care Complaints Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 4. Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of the practitioner except to the Pharmacy Council of New South Wales, the Pharmacy Board of Australia and the Health Practitioner Regulation Agency. Catchwords: HEALTH – professional registration and discipline – unsatisfactory professional conduct – professional misconduct – where practitioner engaged in improper and unethical conduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Criminal Records Act 1991 (NSW) Evidence Act 1995 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Public Health Act 2010 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 Council of the Law Society of New South Wales v DRM [2021] NSWCATOD 105 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaint Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v BXD (No 1) [2015] NSWCATOD 134 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Heath Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 Merrilyn Walton v Alexander Sergevich Momot & Anor [1997] NSWSC 143 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] 67 ALJR 70 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Texts Cited: Guide to Poisons and Therapeutic Goods Legislation for Pharmacists Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) ZXY (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2021/00091271 Publication restriction: Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of the practitioner except to the Pharmacy Council of New South Wales, the Pharmacy Board of Australia and the Health Practitioner Regulation Agency. REASONS FOR DECISION Introduction 1. Ms ZXY is a registered pharmacist. She worked as an employed pharmacist at a lower north shore pharmacy (the pharmacy) until 14 November 2019. After discrepancies in credit card transactions were notified to the pharmacy by its bankers, the practitioner admitted she had misappropriated approximately $30,000 from the pharmacy. She was immediately dismissed from her employment. Following proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) conducted on 3 December 2019, the practitioner was suspended from practice. 2. Following investigations by the Health Care Complaints Commission (the HCCC) and the Pharmaceutical Regulatory Unit (the PRU) of the NSW Ministry of Health, on 1 April 2021, the HCCC commenced disciplinary proceedings in the Tribunal against the practitioner. At the hearing the HCCC sought, and was granted leave without opposition, to rely on an Amended Complaint. 3. The HCCC alleges that the practitioner is guilty of unsatisfactory professional conduct under s 139B (1) (a) and (l) of the National Law. In summary the Amended Complaint alleges that: 1. over a period of about 12 months the practitioner stole money to the value of approximately $30,000 from the pharmacy for her own personal use; and 2. that she inappropriately stored ampoules of a Schedule 8 drug in her personal locker rather than storing as required by the Poisons and Therapeutic Goods Regulation 2008 (NSW) (the regulation). 1. The HCCC also alleges that pursuant to s 144(a) of the National Law the practitioner has been made the subject of findings for criminal offences in New South Wales and Queensland. The HCCC further alleges under s 139B (1) (b) and/or (l) that the practitioner, when first seeking registration, and when renewing her registration, failed to disclose her criminal history. 2. The HCCC alleges that the practitioner's conduct is sufficiently serious to warrant the suspension or cancellation of her registration and constitutes professional misconduct. 3. The Amended Complaint further asserts that the practitioner has an impairment within the meaning of s 5 of the National Law being a persistent Depressive Disorder, Complex Trauma and personality vulnerabilities. The circumstances of, and surrounding the events particularised in the earlier complaints, are asserted to demonstrate under s 144(e) that the practitioner is "otherwise not a suitable person to hold registration". 4. The practitioner in a Reply filed on 21 April 2021 substantially admitted the complaints then particularised. 5. At the hearing, which was conducted by Audio Visual Link due to the COVID 19 pandemic, the HCCC submitted that the appropriate protective orders to be made would be the cancellation of the practitioner's registration, and the imposition of a four year period before she could seek to be re-instated to the register. The practitioner, who appeared at the hearing unrepresented, did not oppose the orders sought by the HCCC. 6. After hearing the evidence in this matter, including the cross-examination of the practitioner, and her answers to questions posed by the panel, we determined that orders as sought by the HCCC should be made. The reasons which follow are why we determined it is appropriate to cancel the practitioner's registration and to impose a period of four years before she can seek a re-instatement order. Background 1. The parties helpfully provided us with a detailed agreed statement of facts dated 30 June 2021. The matters now set out are extracted from that document or were adduced in evidence before us. 2. The practitioner was born in 1990 and was aged 30 years at the date of the hearing. She is married with one infant child and was approximately six months pregnant at the date of the hearing. 3. In 2010 the practitioner completed a Bachelor of Pharmacy degree at the Queensland University of Technology. She was first registered on 7 March 2012. 4. From November 2007 to November 2008 the practitioner worked at a major retail outlet. From March 2008 the practitioner worked at a pharmacy in Queensland in various roles culminating in her employment in January 2012 as a full-time pharmacist. She left her employment in Queensland in November 2016. 5. In 2008 the practitioner was charged with stealing a cardigan from a retail store in Queensland. On 10 April 2008, without proceeding to conviction, the Brisbane Magistrates Court ordered that she enter into a recognisance of $150 on the condition she be of good behaviour for a period of four months. 6. On 20 February 2012 the Australian Health Practitioner Regulation Agency (AHPRA) contacted the practitioner about her provisional registration as a pharmacist and told her she was required to disclose her criminal history (including every plea of guilty, or finding of guilt, whether or not a conviction is recorded). The practitioner admits she did not disclose her 2008 offence when applying for provisional registration. 7. On 24 February 2015 the practitioner was charged by Queensland Police with "Unauthorised dealing with shop goods (maximum $150)". On 26 March 2015 the practitioner pleaded guilty to the offence in the Sandgate Magistrates Court. Again, the Court did not proceed to conviction but ordered the practitioner to enter into a recognisance of $250 on condition that she be of good behaviour for a period of 12 months from 26 March 2015. 8. On 6 April 2016 the practitioner was again charged with "Unauthorised dealing with shop goods" when she stole two Apple iPhone lighting docks from JB Hi Fi valued at $116. On 16 May 2016 the practitioner pleaded guilty before the Brisbane Magistrates Court. Again, the Court did not proceed to conviction, but ordered the practitioner to enter into a recognisance of $500 to be of good behaviour for a period of three months from 16 May 2016. 9. In 2016 the practitioner moved to Sydney and worked for a short period at an inner west pharmacy. She was employed as a full-time pharmacist with the pharmacy on the lower north shore from late 2016 until she was dismissed on 14 November 2019. 10. On 7 December 2016 the practitioner removed the bar code from cheaper items in a Coles supermarket and placed the bar codes on more expensive items. On 7 December 2016 the practitioner was charged with dishonestly obtaining property by deception and shoplifting. On 22 March 2017 at the Downing Centre Local Court, Sydney, the practitioner was found guilty of shoplifting and sentenced to a bond for a period of two years effective from 22 March 2017. 11. The practitioner admits she failed to notify AHPRA of the criminal charges against her in 2015, 2016 and 2017 when completing her annual registration renewal. 12. The practitioner admits she misused multiple staff identification details at the pharmacy to reprint customer receipts and process cash refunds to which she was not entitled and that she kept the cash for her own personal use. She further admits she fraudulently processed about 323 refunds of customer purchases at the pharmacy to her own personal credit card on an almost daily basis from August 2019 to November 2019 totalling about $13,424. 13. The practitioner repaid the sum of $30,000 to the pharmacy in 2020. 14. The practitioner admits that she stored 20 ampules of 10mg/mL morphine sulfate (four boxes) in her personal locker in November 2019. 15. On 14 November 2019 the practitioner attempted suicide by the ingestion of a large quantity of paracetamol and Endone tablets. She was discovered by staff at a hotel in St Leonards and conveyed to Royal North Shore Hospital where she remained in intensive care for some days. Relevant provisions of the National Law and principles to be applied The National Law 1. It is useful at this point in our reasons that we refer to the principal provisions of the National Law relied on by the HCCC in these proceedings. 2. Section 3 of the National Law sets out the guiding objective and principles of the legislation. Additionally, and of relevance to these and all disciplinary proceedings including appeals conducted in New South Wales is s 3A. It has particular relevance to disciplinary proceedings conducted under Part 8. Section 3A provides as follows: 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. 1. As earlier noted, Complaints One, Two and Three assert allegations of unsatisfactory professional conduct under s 139B (1) (a) (b) and (l) of the National Law. Those provisions are as follows: 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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (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. Complaint Four alleges professional misconduct as defined in s 139E. That definition is 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. Complaint Five asserts the practitioner is impaired. Impairment is defined in s 5 of the National Law in the following terms: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; 1. Complaint Six asserts that the practitioner is "otherwise not a suitable person to hold registration". This complaint is agitated under s 144 (e) of the National Law. Section 144 sets out the grounds on which a complaint may be made about a practitioner. It provides as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. The relevant principles 1. There are a number of well established principles relevant to disciplinary proceedings under the National Law. 2. First, the HCCC bears the onus of proof. Generally, matters determined under the National Law, given the serious consequences for the practitioner, must be established to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] 67 ALJR 70; Gautam v Health Care Complaints Commission [2021] NSWCA 85 per Payne JA at [86]-[87]). 3. Secondly the imposing of protective orders is not to punish the practitioner but to protect the public (see Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186). 4. Thirdly, to act as a deterrent. The scheme of the National Law and the purpose of protective orders is succinctly explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]-[35]: "The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 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." Issues in these proceedings 1. The issues we are required to determine in these proceedings, given the admissions of the practitioner, are relatively narrow. We note that as the practitioner has admitted the complaints in writing (her Reply and Statement of Agreed Facts) it is unnecessary for the Tribunal to conduct an inquiry into the complaint (s 165H). However, as we are required under s 165M (5) to comply with s 165M (2) it is necessary that we are independently satisfied the facts relied on to establish the particulars in the complaint are proved. 2. The predominant issue in these proceedings is whether cancellation or suspension of the practitioner's registration is the appropriate outcome. We must also consider, if the practitioner's registration is cancelled, what time period, if any, should be imposed before she can apply for a re-instatement order. Complaint One The misappropriation/stealing complaint 1. This complaint as we have earlier noted relies on both s 139B (1) (a) and (l). It appears to us that particulars 1 and 2 of Complaint One fall to be determined under s 139B (1) (l) and the conduct particularised in particular 3 falls within s 139B (1) (a). Section 128 Certificate 1. The HCCC adduced evidence of a record of interview between the practitioner and the Regional Loss Prevention Manager for the pharmacy chain. During the hearing the practitioner was questioned about answers she gave to the investigator on 14 November 2019. By reason of the practitioner's recorded answers in her interview and confirmed before us in her oral evidence, we granted her a certificate under s 128 of the Evidence Act 1995 (NSW). 2. The practitioner was candid in her admissions in the Statement of Agreed Facts that she had fraudulently processed refunds onto her own credit card and had used other staff members' identification details to reprint customer receipts and receive cash refunds. That admission and evidence is consistent with the record of interview between the practitioner and the Regional Loss Prevention Manager. Further, when questioned at the hearing (and with the benefit of a certificate being granted) the practitioner agreed that she had deposited large sums of cash initially in a Commonwealth Bank account and subsequently that she had used the business to "launder the money". 3. The practitioner's behaviour was discovered by the pharmacy's bankers. We note that although the practitioner said the money obtained was to assist her brother, she provided no evidence to support this assertion and it is inconsistent with the answers given to the Regional Loss Prevention Manager. Nor did the practitioner provide any evidence about how she was able to repay the funds fraudulently obtained, although she told the Regional Loss Prevention Manager she would obtain it from the patients. 4. We are satisfied that the evidence relied on by the HCCC, including the interview with the Regional Loss Prevention Manager, and the practitioner's responses to the HCCC pursuant to s 40 of the Health Care Complaints Act 1993 (NSW), support our conclusion that the particulars relied on by the HCCC are established. Drug storage issue 1. The practitioner has admitted that she inappropriately stored the Schedule 8 drug in her personal locker. She explained that the pharmacy was contracted to supply drugs to a nursing home and was required to have a stock of morphine sulfate for palliative care when required including on weekends. 2. The practitioner asserts that the safe for storing drugs was unable to hold the required stock and excess stock was stored in a locker above her personal locker but she says in her Reply: The Medicines Locker was often at full capacity and there were occasions where Pharmacists needed to access medicines from further within this Medicines Locker. Due to the fact that the Medicines Locker were [sic] often full, medicines were moved out individually from the Medicines Locker and placed in my personal locker underneath for space whilst Pharmacists access the required medicines further inside the Medicines Locker. Ideally, the medicines which were initially moved by Pharmacists into my personal locker would then be returned into the Medicines Locker above immediately 1. We note that the practitioner's evidence in her Reply is inconsistent with the practitioner's response to the HCCC in her letter dated 31 July 2020. In that letter the practitioner says "When the space above the locker was full I stored the Schedule 8 medicines in my locker there being no other space to store these". 2. The manager at the pharmacy responded to a request for information from the HCCC by email dated 7 August 2020. No objection was taken by the practitioner to the admission of the manager's email nor was she required for cross-examination. 3. The manager explained the pharmacy used one safe for cash and one for drugs and that the drug safe was full. She says she never asked the practitioner to store drugs in her locker but she was aware it was being done. She says she felt "very uncomfortable about this" and that she broke Head Office protocol and commenced storing drugs in the cash safe. She says she advised the practitioner that there were to be no drugs stored in lockers anymore. The manager does not provide any timeline as to when she spoke to the practitioner. Later in her statement the manager attributes the practitioner's practice of using her personal locker as "laziness" because the practitioner was responsible for "DD balance" and rather than looking for error when the "DD balance" was out that she moved drugs to her locker. 4. The evidence on this topic is less than satisfactory. It is apparent that an irregular practice was occurring at the pharmacy which was known to management but not addressed in a timely manner. However, it is undeniable that the practitioner, for whatever reason, allowed drugs of dependence to be stored otherwise than in accordance with the regulation. We do not accept the material in her Reply that other pharmacists put drugs into her locker. We were not satisfied that the practitioner was a reliable witness in respect of this and other topics. We make this finding based on the practitioner's differing accounts about this and other matters, particularly the purpose for which she used the pharmacy's cash registers. 5. We note that in evidence before us is the "Guide to Poisons and Therapeutic Goods Legislation for Pharmacists". Par 8.4 of the Guide dealing with Schedule 8 drugs explains: A pharmacist must keep all drugs of addiction separate from other goods (other than cash or documents) in a steel safe meeting the specified requirements and fixed to the building. The safe must be kept securely locked when the drugs are not in immediate use and the key kept on the pharmacist's person and not left on the premises overnight. 1. This guide provides a succinct summary of cl 76 of the regulations. 2. We are satisfied that the practitioner's conduct in this regard was improper. As pharmacist in charge of maintaining the register of drugs of dependence, her judgment in placing the drugs in her own locker was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. It was contrary to cl 76 of the regulation. Complaint Two 1. This complaint is a factual matter. It asserts the practitioner has been made the subject of criminal findings for criminal offences in New South Wales and Queensland. Section 144 (a) provides that a complaint may be made against a practitioner who has been convicted of, or made the subject of a criminal finding, for an offence. 2. Criminal finding and criminal offences are not defined in the National Law. However "criminal history" and "criminal history law" are defined as follows: criminal history, of a person, means the following— (a) every conviction of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law; (b) every plea of guilty or finding of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence; (c) every charge made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law. criminal history law means a law of a participating jurisdiction that provides that spent or other convictions do not form part of a person's criminal history and prevents or does not require the disclosure of those convictions. 1. A spent conviction, and the effect of a such conviction in New South Wales, including restriction on publication is the subject of the Criminal Records Act 1991 (NSW). 2. Section 55 (1) (b) of the National Law provides that a person may be unsuitable for registration by reason of the individual's criminal history. Section 77 (3) (c) of the National Law requires an applicant seeking registration to disclose that applicant's criminal history. Section 77 (4) expressly excludes the exemption for a spent conviction. Section 109 (1) (b) requires a practitioner's annual statement for renewal of registration to include any relevant criminal history in the preceding period of practice. The Queensland offences 1. We accept that the practitioner's 2008 offence occurred before she had her pharmacy qualifications. 2. The practitioner was, by 2015, a registered pharmacist. 3. As is pointed in the HCCC's opening submissions the practitioner provided a letter to the court in respect of her sentencing in March 2015 in which she promised that she would not steal or commit any crimes again, and speculated that her childhood sexual abuse may have led to shoplifting. However, a week after her good behaviour bond expired, the practitioner engaged in dishonesty when she committed her next offence. 4. We accept and rely on the certificates from the relevant Queensland Court and are satisfied based on those certificates that particular 2 of Complaint 2 is established. The New South Wales offences 1. The practitioner's conviction in New South Wales is established by the Certificate of the Downing Centre Local Court dated 22 March 2017. 2. As the HCCC's submissions note the practitioner's good behaviour bond which was imposed for a period of two years was breached by her stealing from the pharmacy albeit she was not charged with an offence in respect of that conduct. Complaint Three 1. This complaint relates to the practitioner's failure to disclose her criminal history (her 2008 conviction) when first applying for registration. It is clear that on 20 February 2012 AHPRA wrote to the practitioner and pointed out she had made no disclosures about her criminal history. The letter from AHPRA clearly spelt out the definition of criminal history and referred to the proceedings in the Brisbane Magistrates Court arising from the theft of a cardigan. We accept that it was only after this correspondence from AHPRA that the practitioner provided details of her 2008 offence. 2. The evidence of the practitioner is that she acknowledges her misconduct in not disclosing the 2008 offence to AHPRA. Further, in the agreed statement of facts, the practitioner admits that she knowingly or recklessly made false and misleading statements about her criminal history to AHPRA. On the evidence before us we are satisfied that the practitioner knowingly made false and misleading statements to AHPRA. 3. Of greater significance is the practitioner's failure to disclose her 2015 offence and her two 2016 offences when seeking to renew her registration. 4. Section 109 (1) (b) of the National Law requires a practitioner's annual statement for renewal of registration to include any relevant criminal history. The practitioner did not, in each of the relevant years particularised in the complaint, disclose her further charges. She was well aware from 2012 of the requirement to do so. 5. In her Reply the practitioner says she was "unaware of the difference between criminal charge and criminal conviction and this led to the misleading declaration". However, somewhat inconsistently with this explanation she goes on to say "By disclosing these offences to the Pharmacy Board of Australia I was fearful of the consequences, such as the risk of losing my job, career and profession". We are satisfied that particulars 3, 4 and 5 of Complaint Three are established. Complaint Four - Professional misconduct The authorities 1. We have earlier in these reasons referred to the remarks of Meagher JA concerning the purpose of disciplinary proceedings. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]-[21] Basten JA explained: 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. 1. We commence by noting that the practitioner concedes that the conduct asserted in the complaint constitutes professional misconduct. We agree that the practitioner's concession is appropriately made. We are satisfied that the matters we have found proved in Complaint One, relating to the practitioner's theft from her employer, is of itself conduct of sufficiently serious nature to justify either suspension or cancellation of her registration. 2. The practitioner's conduct which we have found established in Complaint Three, for reason earlier given, when considered in conjunction with the conduct established in Complaint One, fortifies our conclusion that the practitioner is guilty of professional misconduct. 3. We find that the conduct particularised in Complaint Three when considered with the conduct established by Complaint One, both of which we have found proved, establishes that the practitioner is guilty of professional misconduct. Complaint Five – impairment Definition of impairment 1. We have earlier in these reasons set out the definition of impairment in the National Law. 2. The particulars of this complaint are that the practitioner suffers persistent Depressive Disorder, Complex trauma and personality vulnerabilities. 3. In her Reply the practitioner says she is currently under the care of a psychologist to manage her Major Depressive Disorder and suicidal thoughts. She explains she has consistently sought employment over the last eighteen months but has been unsuccessful in gaining employment. 4. The practitioner says: Even through the ongoing struggle of these disorders combined with a history of sexual abuse and domestic violence, I am more determined than even to be a high-functioning member of society. It was incredibly selfish on my behalf to attempt suicide and risk leaving behind a daughter. Furthermore, now being pregnant with my second child, my family and children depend and look to me as role model. Expert and other evidence relative to impairment 1. In this matter the HCCC relies on an expert report of Dr Anthony Samuels. The HCCC also relies on the practitioner's medical records including her treating psychologist's notes and her clinical records from the hospital following her suicide attempt. 2. Dr Samuels saw the practitioner on 16 June 2021 and prepared a report of the same date. At the commencement of his report, Dr Samuels refers to the material supplied to him by the HCCC. 3. At par 20 of his report Dr Samuels notes that the practitioner "appeared to have given a contradictory history to her treating practitioners at Royal North Shore Hospital with regard to the reason why her employment had been terminated". 4. At par 23 to par 29 of his report Dr Samuels records the psychosocial history provided to him by the practitioner. He records "[the practitioner] has had 8 or 9 counselling sessions with Dr Bazley in Crows Nest. This is still ongoing but she cannot really afford it". 5. In respect of her developmental history, the practitioner is noted to have reported to Dr Samuels that she was sexually assaulted by her grandfather at age 5 and by an uncle at 7 or 8. The report notes the practitioner disclosed the sexual abuse to her mother at age 13 but "she did not do anything". 6. The practitioner also told Dr Samuels that she developed an eating disorder at 17 but did not "really seek treatment for it". Dr Samuels notes: [The practitioner's] first real contact with a psychiatrist and psychologist occurred after the overdose attempt in November 2019… and she was placed on Citalopram 30mg which she has taken ever since. She went to Royal North Shore Hospital Community Centre twice, then started seeing Renee Bazely in February 2020 sometimes mostly monthy". 1. In response to a comment from Dr Samuels that stealing a chocolate bar did not make much sense, the practitioner is noted to have replied "I was greedy, selfish. I thought I could get away with it". 2. Dr Samuels also questioned the practitioner about a letter she gave to the Magistrate in Queensland in 2015 in which she referred to her sexual abuse and said she was going to have counselling but had not done so. The practitioner is reported as saying "I figured I could compartmentalise and get on with it". 3. Dr Samuels also raised with the practitioner her assertions in 2015 to the Magistrate that she was of good character, and how she explained that "in light of all the things that had occurred". The practitioner is noted to have responded "I guess I am still trying to figure that out". 4. At par 61 of his report Dr Samuels explains: I gave [the practitioner] some feedback at this point and I indicated to her that, whilst my role was not a therapeutic one, I would strongly recommend her to engage assertively in some form of therapy and until she addresses issues from the past, until she deals with her relationship issues, until she gets her emotions under control and stabilises her mood, it is likely that her life path will continue to be chaotic. I made it clear to [the practitioner] that until she engaged in some form of psychological treatment and there was clear evidence that she had progressed and made some substantive changes, that it would be unlikely that she would be permitted to practise as a pharmacist. 1. Dr Samuels opined that the practitioner is in a dysfunctional and abusive relationship. He also noted she is very socially isolated in Sydney. 2. We established from the practitioner's treating psychologist clinical notes, and from the practitioner's answers given in cross-examination, that the information she provided to Dr Samuels about her attendance on Dr Bazley was grossly exaggerated. We note that in the Agreed Statement of Facts the practitioner concedes she first saw Dr Bazley on 30 January 2020, then on 13 February 2020 and finally in September 2020. However, even if the information provided to Dr Samuels had been accurate, he did not regard her treatment included medication and attendance on her psychologist as adequate. 3. Dr Samuels opined that the practitioner has partial insight into her shoplifting offences but that she was unable to explain the 2019 theft except to say it was for her brother. Again, we note the discrepancies in the report given by the practitioner to Dr Samuels as to the reason for the pharmacy theft and that of "money laundering" given to the investigator and before us. We also note, as did Dr Samuels, that the practitioner provided her treating doctors at the hospital following her suicide attempt with yet another version of her dismissal from the pharmacy, namely that she was bullied by the manager. 4. Dr Samuels opines that the practitioner meets the DSM-5 diagnosis criteria for a Persistent Depressive Disorder and that at times she may meet full criteria for Major Depression. He explains "She has associated anxious distress and her symptoms are of moderate severity". He notes "She also has features of Complex Trauma and some residual features of Posttraumatic Stress Disorder that could be related to early development traumas". 5. Dr Samuels concludes this part of his report at par 73 explaining: She appears to have personality vulnerabilities characterised by emotional dysregulation and self-harming behaviour as well as some antisocial traits as evidenced by prior criminality. 1. Dr Samuels opines that the practitioner is definitely at risk of deliberate self-harm. He explains at par 74 "it is evident from her past history that when her problems seem insurmountable, she is at risk of suicide and she made a very serious suicide attempt in 2019". 2. Dr Samuel opines that the practitioner is impaired as defined in s 5 of the National Law. He states she suffers from Persistent Depressive Disorder, Complex Trauma, personality vulnerabilities, and bulimia nervosa in remission. He states these conditions have the potential to impact upon her professional functioning and have affected her career to date. 3. Dr Samuels was not required for cross-examination. We had no hesitation in accepting his opinions based on his thorough review of relevant documents, his carefully recording of relevant history and his professional expertise. We find the practitioner does suffer from an impairment as defined in s 5 of the National Law. 4. Later in these reasons we return to aspects of Dr Samuel's report which are relevant to the practitioner's suitability to practice, protective orders and the period before she may apply for a re-instatement order. We also take into account Dr Samuels' opinions when determining whether or not a non-publication order should be made. Complaint Six – unsuitable to hold registration 1. It is useful at this point that we repeat s 144 (e) of the National Law. Section 144 (e) provides: (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. We note the complaint does not rely on s 139 of the National Law. 2. The practitioner does not address this complaint in her Reply, nor is it addressed in the Statement of Agreed Facts. The authorities 1. The HCCC relies on the "circumstances of and surrounding Complaints One, Two and Three" to support this complaint. How section s 144 (e) is to be interpreted is discussed in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 and referred to by the NSW Court of Appeal in Windsor v Health Care Complaints Commission [2020] NSWCA 110. Consideration – not a suitable person to hold registration 1. We have found that the practitioner engaged in theft and/or money laundering in the course of her employment as a pharmacist. She abused the trust placed in her by her employer, and brought the profession into disrepute by her actions. 2. Her conduct in using other staff members' identification details when accessing the cash register was carried out in complete disregard for any consequences her conduct may have had on those staff members. 3. It is to be remembered that the practitioner's conduct in the pharmacy was not her only dishonest conduct. She engaged in dishonest conduct in her shoplifting offences both in Queensland and New South Wales. She was fortunate that her New South Wales employer did not seek to have criminal charges pressed against her. 4. We have found the practitioner knowingly did not disclose her criminal history to AHPRA when applying for registration or renewing her registration. 5. At para 80 of his report Dr Samuels opines: [The practitioner's] history of sexual abuse and her dysfunctional marital relationship does not excuse her concerning behaviour over the years including the serious theft at the [name of pharmacy] or failure to disclose to AHPRA. 1. Dr Samuels did however find the practitioner's vulnerabilities as well as her persistent depression contributed to her conduct. 2. We agree with Dr Samuels and find notwithstanding the mitigating circumstances that the practitioner has consistently engaged in dishonest conduct over a lengthy period of time. 3. We are fortified in our conclusions about the practitioner's dishonesty by her failure to give an honest explanation about her dismissal from the pharmacy to her treating specialists at Royal North Shore Hospital and seeking to blame her supervisor of bullying. We also found it of concern that the practitioner was not forthright with Dr Samuels about her attendance (or lack thereof) on Dr Bazley which also demonstrates a lack of candour. Similarly it is of concern that she advanced yet another reason to Dr Bazley for her suicide attempt. 4. We make our findings about the practitioner's unsuitability to hold registration against her assertions to the Magistrate in 2016 that she was a person of good character. These assertions have not been borne out by her subsequent conduct. 5. We find that the circumstances of the practitioner's dishonest conduct both in relation to shoplifting, stealing from the pharmacy and in failing to disclose her criminal offences to AHPRA means that she is otherwise not suitable to hold registration. Appropriate protective orders 1. We commence our discussion of appropriate protective orders by recording that the practitioner did not cavil with the HCCC's submission that her registration should be cancelled and a disqualification period of four years should elapse before she may again seek re-instatement to the register. 2. The question of the period before a practitioner may again seek registration often involves dual considerations. First, it is relevant to consider what period will be sufficient for a practitioner to gain insight into his or her behaviour, or engage in rehabilitative therapy or other psychological or psychiatric treatment. The second question to be considered is the nature of the conduct which led to the disciplinary proceedings to ensure the imposition of a period which demonstrates the disapprobation by the Tribunal of the conduct and which will act as a deterrent to other practitioners. 3. In Chen Basten JA referred to this assessment as follows at [22]. His Honour explained: 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. In the same matter Payne JA discussed the issues as follows at [88]: The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order. 1. We are satisfied that the conduct which we have found established, and in particular our finding of professional misconduct, requires that the practitioner's registration should be cancelled. 2. In considering an appropriate period before the practitioner can again apply for registration we accept the opinion expressed by Dr Samuels. At par 80 of his report he opined: In my opinion, if [the practitioner] were motivated to undertake some intensive psychological and psychiatric treatment, it is possible that in the course of the next few years she could gain more control over the situation and perhaps find herself in a position where she is more able to re-apply for her registration and, with conditions and support in place, and to be more able to fulfil professional responsibilities and obligations. However, in my view it will be some years before she is in a position to achieve this. She seemed to display some insight and understanding that she does need to take some control over her life situation. 1. We are independently satisfied that a period of four years before the practitioner can apply for a re-instatement order is appropriate. We note that the practitioner is a relatively young woman and it is to be hoped she addresses Dr Samuels' recommendations during her period of disqualification. Costs 1. Clause 13 of Schedule 5D of the National Law empowers us to make an order for costs. 2. The authorities on the awarding of costs under the National Law are well known (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342). 3. We note that the practitioner has co-operated with the HCCC and conceded the majority of the complaints and participated in providing an Agreed Statement of Facts. That has minimised the time the matter might otherwise have taken and thus reduced costs. Notwithstanding this fact, the HCCC has been entirely successful in the proceedings. There are no other special or exceptional circumstances in this matter in favour of the practitioner. 4. We find that the practitioner should pay the HCCC's costs as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Non-publication order 1. At the conclusion of this matter, particularly because the practitioner does not have legal representation, we raised with the parties the type of circumstances where the Tribunal may make a non-publication order including an order restricting the publication of the name of the practitioner. 2. The practitioner indicated that she may wish to file evidence and submissions in respect of a non-publication order. Accordingly we provided a timetable for the parties to file further evidence and submissions on this topic. 3. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The authorities on the making of non-publication orders in disciplinary proceedings under the National Law stress that unless there are special or out of the ordinary circumstances the principles of open justice should prevail (see Merrilyn Walton v Alexander Sergevich Momot & Anor [1997] NSWSC 143; Health Care Complaint Commission v Vo [2014] NSWCATOD 127). But the Tribunal has found a real risk that disclosure of the practitioner's name could lead to suicide has overridden the general principles of open justice (see Health Care Complaints Commission v XC [2015] NSWCATOD 9; Council of the Law Society of New South Wales v DRM [2021] NSWCATOD 105). The practicalities of whether a non-publication order should be made under cl 7 (1) of Schedule 5D of the National Law or under s 64 of the NCAT Act are discussed in Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31. 2. Cl 7 of Schedule 5D is a re-enactment of cl 6 of Schedule 2 of the Medical Practice Act 1992 (NSW) (repealed). The identical provision was considered by Handley JA in Merrilyn Walton v Alexander Sergevich Momot. His Honour explained: "The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule. This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts, most recently, for relevant purposes, in John Fairfax & Sons Limitedv The Police Tribunal (1986) 5 NSWLR at 465, and by Samuels JA in Bowen-James v Delegate of Director-General Department of Health (40432/91unreported 29/7/91). The Chairman therefore did not misdirect himself when he said that special or exceptional circumstances had to be established before a suppression order could properly be made". 1. In this case the practitioner seeks an order under s 64 of the NCAT Act. The temporal nature of an order under cl 7 of Schedule 5D has been referred to in Heath Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 and Health Care Complaints Commission v BXD (No 1) [2015] NSWCATOD 134. Section 64 of the NCAT Act is not so limited. Section 64 (3) provides that the Tribunal (as distinct from the person presiding in proceedings) may vary or revoke a non-publication order at any time. Both provisions are subject to the principle that the Tribunal sits in hearings open to the public, and that principles of open justice should prevail, unless there are special circumstances that override that principle. 2. Under s 64 of the NCAT Act the Tribunal must consider whether it is "desirable" to make a non-publication order. The test under cl 7 of Schedule 5D is whether the presiding member thinks it is "appropriate". Both tests require an exercise of discretion. The tests are broadly analogous and less stringent than the test under s 9 the Court Suppression and Non-publication Orders Act 2010 (NSW). 3. The practitioner seeks an order under s 64 of the NCAT Act. The HCCC submits that her application should be refused and strictly in the alternate that under cl 7 (1) (iv) of Schedule 5D of the National Law the evidence and reasons relating to the practitioner's impairment should be redacted from the published decision. The practitioner's submissions and evidence 1. The practitioner in her request for a non-publication order says that she has a history of mental health disorders and that she is currently managing with medication and family support. She submits "I firmly believe that publication of my personal information in relation to this case will be detrimental to my mental health and increase the risk of relapse into depression and/or suicidal thoughts". She goes on to explain that she has been unable to afford maintaining regular visits to Dr Bazley. 2. She concludes her application noting: I am currently 31 weeks pregnant with my second child, and combined with a history of mental illness, believe that the consequences of publication would increase the risk of post-partum depression. 1. The practitioner provided a letter dated 31 July 2021 from Dr Bazley. Dr Bazley set out the dates of her three consultations with the practitioner (the last being on 29 September 2020). Dr Bazley records that the practitioner told her desire to suicide "stemmed from being in an emotionally abusive relationship with her husband". Dr Bazley explains that she would liked to have continued support to the practitioner because she was significantly concerned about her fragility. However, as she has not seen the practitioner since September 2020 she very appropriately explained she could not comment on the practitioner's current health. The HCCC's submissions 1. The HCCC opposes the making of a non-publication order noting that proceedings under the National Law are to be open to the public (s 165K). It is noted that the Tribunal's reasons are made publicly available by publication, as well as maintained on a separate register maintained by the Pharmacy Board of Australia, published under s 94B (3) of the Health Care Complaints Act 1993 (NSW) and made available to patients and employers of other health related services under s 102 (1) of the Public Health Act 2010 (NSW). 2. The HCCC submits that the practitioner has not demonstrated special or exceptional circumstances. But the HCCC submissions explain "if the evidence presented by the respondent established that she is at high risk of suicide with publication of the decision exceptional circumstances exist". 3. Although the HCCC opposes the non-publication application, the submissions contemplate an alternative proposal namely that the impairment complaint and any evidence relevant to it be restricted to the parties. Consideration – non-publication order 1. First, we observe that in determining this application the Tribunal is entitled to "inform itself of any matter in the way it thinks fit" (cl 2 of Schedule 5D of the National Law). Accordingly, we are entitled to rely on the expert evidence adduced by the HCCC in this matter by Dr Samuels. We have given significant weight to Dr Samuels' opinion that the practitioner is a high suicide risk when problems seem insurmountable. She was fortunate that her 2019 suicide attempt was not lethal but it required her admission to intensive care for five days, and thereafter further hospitalisation. 2. We are conscious too that the practitioner is to give birth to her second child in October this year and will no doubt face challenges, not the least, because of her psychiatric diagnosis and vulnerabilities. 3. We have undertaken a risk assessment on the evidence before us. We accept that Dr Samuels does not directly state that publication of the reasons is likely to result in a suicide attempt by the practitioner, but we find publication could amount to an insurmountable problem for this mentally unstable woman who is unemployed and in a difficult financial situation. She is in the last trimester of her pregnancy and on medication for her depressive condition but without current access to good psychological or psychiatric support. 4. We are satisfied in the unusual circumstances of this case the practitioner's health and well-being override open justice principles and we will make an order anonymising the practitioner's name. Orders 1. Pursuant to s 149C (1) of the Health Practitioner Regulation National Law (NSW) (the National Law) the registration of ZXY (the practitioner) is cancelled. 2. Pursuant to s 149C (7) of the National Law the practitioner may not apply for a review of Order 1 for a period of four years from the date of these orders. 3. The practitioner is to pay the costs of the Health Care Complaints Commission as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 4. Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of the practitioner except to the parties, Pharmacy Council of New South Wales, the Pharmacy Board of Australia and the Australian Health Practitioner Regulation Agency. ********** 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: 06 September 2021