Health Care Complaints Commission v Kaye [2022] NSWCATOD 24
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Kaye [2022] NSWCATOD 24
Hearing dates: 4 and 5 November 2021
Date of orders: 25 February 2022
Decision date: 25 February 2022
Jurisdiction: Occupational Division
Before: R C Titterton OAM, Senior Member
J Chen, Senior Member
K Carter, Senior Member
A Gray, General Member
Decision: 1. Complaint One is established, that is that the practitioner was convicted of criminal offences and made the subject of a criminal finding in New South Wales.
2. Complaint Two is established, namely that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
3. Complaint Three is established, namely that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) in that the practitioner has contravened a provision of the National Law.
4. Complaint Four is established, namely that the practitioner is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).
Catchwords: PROFESSIONS AND TRADES – health care professional – pharmacy – where practitioner admits he is guilty of unsatisfactory professional conduct and professional misconduct – appropriate protective orders
Legislation Cited: Crimes Act 1900 (NSW), s 117
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)(b)
Health Practitioner Regulation National Law (NSW),
ss 3, 3A, 5, 139B, 139E, 144(a), 149C, cl 3 of Sch 5F, cl 11(2)(a) of Sch 5F
Cases Cited: Allinson v General Council of Medical Education and Registration [1984] 1 QB 750
Chen v Health Care Complaints Commission [2017] NSWCA 186
Health Care Complaints Commission v Bolton [2021] NSWCATOD 160
Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Health Care Complaints Commission v Liu [2016] NSWCATOD 133
Pillai v Messiter [No 2] (1989)16 NSWLR 197
Siganto v The Queen (1998) 194 CLR 656
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Andrew Peter Kaye (Respondent)
Representation: Counsel:
A Bhasin (Applicant)
A Harding SC and R Withana (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
Clinch Long Woodbridge (Respondent)
File Number(s): 2021/00147827
Publication restriction: The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure to any person or entity other than the parties of the names, addresses or any other identifying information of the witnesses referred to as Witness A to I in these Reasons.
The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure to any person or entity other than the parties of Attachment A to these Reasons.
REASONS FOR DECISION
1. By Application for Disciplinary Findings and Orders filed 25 May 2021, the Health Care Complaints Commission (Commission) pursuant to s 149C of the Health Practitioner Regulation National Law No 86a of 2009 (NSW) (National Law) seeks protective orders from the Tribunal in respect of the conduct of Mr Andrew Peter Kaye (practitioner).
2. For the following reasons, we have found each of the four complaints established.
3. At the request of the parties we have made a non-publication order in respect of the identification of any staff member or patient of the practitioner. These are identified in the confidential attachment to these reasons which we direct are not to be published.
Evidence
The Commission's evidence
1. The Commission filed a folder of material consisting of some 46 documents or bundles of documents. These documents include but are not limited to correspondence between the Commission and the practitioner, correspondence between the Pharmacy Council of NSW (Council) and the practitioner, witness statements; submissions to Council; various documents relating to Court appearances of the practitioner including materials produced by the NSW Police; an expert's report of Dr Mitchell Howarth, clinical psychologist, Script Log Report of various pharmacies; and the Pharmacy Board of Australia (Board) Guidelines and Code of Conduct.
2. The only Commission witness required for cross-examination at this Stage One hearing by the practitioner was Witness A.
The practitioner's evidence
1. The practitioner filed two volumes of materials which included his Reply to the Complaint, a 44 page affidavit of the practitioner sworn 27 August 2021 (together with approximately 240 pages of annexures); a five page supplementary affidavit of the practitioner sworn 1 November 2021 (together with approximately 120 pages of annexures); an expert's report of Mr Albert Regoli (a registered pharmacist) dated 7 October 2021; an expert's report of Dr Robert Fisher (a consultant psychiatrist and pain management specialist) and submissions.
2. The practitioner was required for cross-examination by the Commission.
Other
1. Importantly, the documents before the Tribunal included an Agreed Statement of Facts which is set out below.
Amended Complaint dated 3 November
1. The Commission brought four complaints to the Tribunal.
2. The background to all complaints is that:
1. the practitioner received his Bachelor of Pharmacy from the University of Sydney. The practitioner was first registered as a pharmacist on 11 June 1992;
2. at all material times the practitioner was the owner and operator of five pharmacies, including Pharmacy Nutrition Warehouse at Toongabbie (PNW Toongabbie) and Pharmacy Nutrition Warehouse at Quakers Hill (PNW Quakers Hill) (the Pharmacies).
Complaint One
1. Complaint One is that pursuant to s 144(a) of the National Law, the practitioner was convicted of criminal offences and made the subject of a criminal finding in New South Wales.
2. The background to Complaint One is that:
1. on 31 January 2020, the practitioner was found guilty and sentenced at Manly Local Court for the offence of larceny, pursuant to s 117 of the Crimes Act 1900 (NSW) (Crimes Act);
2. on 2 October 2020, the practitioner was convicted at the Downing Centre Local Court of two offences under the National Law relating to the operation of the Pharmacies. On the same date, the practitioner received two fines of $5,000 and $3,000 and was ordered to pay professional costs in the amount of $11,825.00 to the Council.
1. The particulars to Complaint One are:
1. on 31 January 2020, at Manly Local Court, the practitioner was found guilty of larceny, namely stealing a CCTV camera valued at $750, which was the property of the Owners Corporation of XXXX East Esplanade, Manly, pursuant to s 117 of the Crimes Act. The practitioner was sentenced to a conditional release order (CRO) of 6 months, without conviction, pursuant to s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act);
2. on 2 October 2020, the practitioner was convicted at the Downing Centre Local Court of the following offences under the National Law relating to the operation of the Pharmacies:
1. carrying on a pharmacy business trading as Pharmacy Nutrition Warehouse in Toongabbie, being premises that were not the subject of current approval by the Pharmacy Council, pursuant to cl 3 of Sch 5F of the National Law; and
2. that the pharmacy business trading as Pharmacy Nutrition Warehouse at Quakers Hill, owned by the practitioner, was not conducted in the charge of a pharmacist who personally supervise the carrying on of the business, pursuant to cl 11(2)(a) of Sch 5F of the National Law.
Complaint Two
1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 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.
2. The background to Complaint Two is that:
1. on 5 February 2020, the practitioner provided a written submission to the Council in response to a notice of proceedings being convened pursuant to s 150 of the National Law;
2. on 3 March 2020, the practitioner provided a written submission to the Commission in response to a notification of a complaint made against him;
3. on 25 September 2020, the practitioner's legal representative provided an email to the legal representative of the Council confirming the practitioner's instructions, namely that the practitioner denied that the Pharmacies operated without a pharmacist on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019;
4. on 1 October 2020, the practitioner's legal representative provided an email to the legal representative of the Council confirming the practitioner's updated instructions, namely that the practitioner admitted operating the Pharmacies without a pharmacist present for periods of time on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019;
5. on 2 October 2020, the practitioner signed an Agreed Statement of Facts for the offence set out in Complaint One. The Agreed Facts stated that the practitioner, "had previously operated Pharmacy Nutrition Quakers Hill without the supervision of a pharmacist for a period of on [sic] 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019".
1. The first particular to Complaint Two is that:
1. the practitioner inappropriately instructed staff to carry on the business of the pharmacy PNW Toongabbie in the absence of a registered pharmacist on the following dates:
1. 23 December 2017 from about 3:20pm to 4:00pm; and
2. 24 December 2017 from about 9:00am to 9:30am.
1. the practitioner inappropriately instructed staff to carry on the business of the pharmacy PNW Quakers Hill in the absence of a registered pharmacist on the following dates:
1. 4 August 2018 from about 9:00am to approximately 12:40pm;
2. 27 October 2018 from about 9:00am to approximately 2:20pm;
3. 9 February 2019 from about 9:00am to approximately 12:40pm; and
4. 16 November 2019 from about 9:00am to 12:30pm.
1. The second particular to Complaint Two is that the practitioner provided false and/or misleading information to regulatory authorities when he:
1. stated that 18 January 2020 was the "first time" he had given instructions to his "staff" to "dispense without a pharmacist on the premises" and "this type of incident never occurred at my pharmacist [sic] before" when asserted in the practitioner's written submissions to the Council dated 5 February 2020;
2. stated "I understand this is no excuse for my actions but I would like to sincerely apologise for my out of character and one-off lapse in judgment on 18 January 2020" in his written submissions to the Commission dated 3 March 2020;
3. through representations made by his legal practitioner on his behalf, denied that on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019 PNW Quakers Hill operated without a pharmacist, in an email from his legal practitioner of 25 September 2020 to the Council.
Complaint Three
1. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the National Law.
2. The background to Complaint Three is that:
1. on 22 October 2019, the practitioner was charged with the offence of larceny under s 117 of the Crimes Act;
2. on 31 January 2020, the practitioner was subject to a finding of guilt in Manly Local Court for the larceny offence. Without proceeding to conviction, the practitioner received a CRO of 6 months pursuant to s 9(1)(b) of the CSP Act;
1. The particulars of Complaint Three are that:
1. the practitioner contravened s 130(1) of the National Law in that he failed to notify the National Board in writing within 7 days of being charged with an offence punishable by 12 months' imprisonment or more, namely larceny under s 117 of the Crimes Act;
2. the practitioner contravened s 130(1) of the National Law in that he failed to notify the National Board in writing within 7 days of being subject to a finding of guilt for an offence punishable by 12 months' imprisonment or more, namely larceny under s 117 of the Crimes Act.
Complaint Four
1. Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or
2. 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.
1. The background to Complaint Four is the backgrounds to Complaints Two and Three.
2. The particulars to Complaint Four are particulars 1 and 2 of Complaint Two which are relied upon individually and in combination with particulars 1 and 2 of Complaint Three.
Reply to Complaint
1. In his signed Reply dated 27 August 2021 the practitioner pleads as follows.
2. The practitioner admits the facts alleged as "background to all complaints".
Complaint One
1. The practitioner admits Complaint One.
2. The practitioner admits the facts alleged as the background to Complaint One.
3. The practitioner admits the facts alleged in particular 1 of Complaint One.
4. The practitioner admits the facts alleged in particular 2 of Complaint One and further says:
1. In respect of the conviction of larceny, the relevant period of time with respect to the offence under cl 3 of Sch 5F of the National Law was between 13 December and 20 February 2020; and
2. In respect of the convictions for the two offences relating to the operation of the Pharmacies, the relevant date of the offence under cl 11(2)(a) of Sch F of the National Law was 18 January 2020.
Complaint Two
1. The practitioner admits Complaint Two.
2. The practitioner admits the facts alleged as the background to Complaint Two.
3. In answer to particular 1 of Complaint Two in relation to PNW Toongabbie, the practitioner:
1. admits that for a period of the time on each of the dates alleged in the particular he inappropriately instructed staff to carry on the business of the pharmacy in the absence of a registered pharmacist; and
2. otherwise denies the matters alleged in the particular;
1. In answer to particular 1 of Complaint Two in relation to PNW Quakers Hill the practitioner admits paragraphs (a), (b) and (c), and as to paragraph (d) says that he inappropriately instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist on 16 November 2019 from 9:00am to 10:30pm, not 9:00am to 12:30pm as alleged.
2. In answer to particular 2 of Complaint Two, the practitioner:
1. admits the matters stated in paragraphs (a) to (c);
2. says that:
1. his responses to regulatory authorities detailed in paragraphs (a) to (b) were imprecise and that the references to the conduct being the "first time" and "one-off" were made in the context that the pharmacy had never been left unattended by a pharmacist for a whole day (as opposed to part of the day in the past); and
2. in respect of his response detailed in (c) was based upon a review of his business records, in particular his work rosters and Register of Drugs of Addiction;
1. admits that his responses in paragraphs (a) to (c) were not correct in conveying that:
1. as to the matters in paragraphs (b) and (c), the only time staff dispensed without a pharmacist on the premises was on 18 January 2020; and
2. as to the matters in paragraph (c), that PNW Quakers Hill did operate with a pharmacist on the premises on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019 when that was not the case; and
1. says that he did not intend to provide false and misleading information to the regulatory authorities.
Complaint Three
1. The practitioner admits Complaint Three.
2. The practitioner admits the facts alleged as the background to Complaint Two.
3. The practitioner admits the facts alleged in particulars 1 and 2 of Complaint Three.
Complaint Four
1. The practitioner admits Complaint Four.
2. As to the background to Complaint Four, the practitioner repeats paragraphs 7 and 11 of this Reply.
3. As to the particulars to Complaint Four, the practitioner repeats paragraphs 8, 9 and 12 of this Reply.
Agreed Statement of Facts
1. The parties filed an agreed statements of facts as follows (footnotes omitted).
2. The practitioner is a pharmacist registered under the National Law.
3. The practitioner received his Bachelor of Pharmacy from the University of Sydney. The practitioner was first registered as a pharmacist on 11 June 1992.
4. At all material times the practitioner was the owner and operator of five pharmacies, including PNW Toongabbie and PNW Quakers Hill.
5. On 4 August 2018, the practitioner instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist at PNQ Quakers Hill from about 9am to approximately 12.40pm.
6. On 27 October 2018, the practitioner instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist at PNQ Quakers Hill from about 9am to approximately 2.20pm.
7. On 9 February 2019, the practitioner instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist at PNQ Quakers Hill from about 9am to approximately 12.40pm.
8. On 22 October 2019, the practitioner was charged with the offence of larceny under s 117 of the Crimes Act.
9. On 31 January 2020, at Manly Local Court, the practitioner was found guilty of larceny, namely stealing a CCTV camera valued at $750, which was punishable under s 117 of the Crimes Act. The practitioner was sentenced to a Conditional Release Order (CRO) for a period of 6 months, without conviction, pursuant to sections 9(1)(b) and 10(1)(b) of the CSP Act.
10. On 5 February 2020, the practitioner provided a written submission to the Council in response to a notice of proceedings being convened pursuant to s 150 of the National Law. In this submission the practitioner stated, amongst other things, that 18 January 2020 was the "first time" he had given instructions to his "staff' to "dispense without a pharmacist on the premises'' and "this type of incident never occurred at my pharmacist [sic] before".
11. On 12 February 2020, the Council conducted a hearing pursuant to section 150 of the National Law. At the conclusion of the hearing, the delegates suspended the practitioner's registration as a pharmacist pursuant to s 150(1)(a) of the National Law. The suspension was effective from 12 February 2020.
12. On 3 March 2020, the practitioner provided a written submission to the Commission in response to a notification of a complaint made against him. In this submission the practitioner stated, amongst other things, ''I understand this is no excuse for my actions but I would like to sincerely apologise for my out of character and one-off lapse in judgment on 18 January 2020''.
13. On 25 September 2020, the practitioner's legal representative provided an email to the legal representative of the Council regarding the contents of a draft statement of agreed facts which had been prepared by the Council for proposed use in the Local Court proceedings referred to below.
14. On 1 October 2020, the practitioner's legal representative provided an email to the legal representative of the Council confirming that the practitioner admitted operating the Pharmacies without a pharmacist present for periods of time on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019.
15. On 2 October 2020, the practitioner and the representative of the Pharmacy Council of NSW signed an Agreed Statement of Facts (Agreed Facts) for use in the criminal proceedings against the practitioner referred to below. The Agreed Facts stated that the practitioner, "had previously operated Pharmacy Nutrition Quakers Hill without the supervision of a pharmacist for a period of [sic] on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019".
16. On 2 October 2020, the practitioner was convicted at the Downing Centre Local Court of the following offences under the National Law:
1. between 13 December 2019 and 20 February 2020, carrying on a pharmacy business trading as Pharmacy Nutrition Warehouse in Toongabbie from premises that were not the subject of current approval by the Pharmacy Council, contrary to cl 3 of Sch 5F of the National Law; and
2. on 18 January 2020, the pharmacy business trading as Pharmacy Nutrition Warehouse at Quakers Hill, owned by the practitioner, was not conducted in the charge of a pharmacist who personally supervised the carrying on of the business, contrary to cl 11(2)(a) of Sch 5F of the National Law.
1. On 2 October 2020, the practitioner also had his CRO revoked in relation to the larceny charge referred to above and a conviction was recorded and a fine of $500.00 imposed in respect of that charge.
Relevant Law
1. It is appropriate to set out the relevant provisions of the National Law. These are as follows.
2. Section 3, which provides:
3 Objectives and guiding principles
(1) The object of this Law is to establish a national registration and accreditation scheme for--
(a) the regulation of health practitioners; and
(b) the registration of students undertaking--
(i) programs of study that provide a qualification for registration in a health profession;
(ii) clinical training in a health profession.
(2) The objectives of the national registration and accreditation scheme are-
(a) 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
(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and
(c) to facilitate the provision of high quality education and training of health practitioners; and
(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and
(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
(3) The guiding principles of the national registration and accreditation scheme are as follows--
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
1. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms:
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. A "NSW provision" is defined in s 5 of the National Law as:
(a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or
(b) a NSW regulation.
Note —
This definition is an additional New South Wales provision.
1. Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides:
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—
…
(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.
(c) Contravention of conditions of registration or undertaking
A contravention by the practitioner (whether by act or omission) of—
(i) a condition to which the practitioner's registration is subject; or
(ii) an undertaking given to a National Board.
…
(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. Section 139E of the National Law (again, an additional provision for NSW), provides:
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.
Consideration of Complaint One
1. Complaint One is that pursuant to s 144(a) of the National Law, the practitioner was convicted of criminal offences and made the subject of a criminal finding in New South Wales.
2. The conduct the subject of both Complaint One and the particulars set out in above has been admitted by the practitioner. Independently of this admission, we find this Complaint proved.
Consideration of Complaint Two
1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 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.
2. The practitioner has admitted that his conduct the subject of Complaint Two was unsatisfactory professional conduct under s 139B(1)((l) of the National Law in that he engaged in improper or unethical conduct relating to practice or purported practice of pharmacy. The practitioner admits that he inappropriately instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist at PNW Quakers Hill for part of the days on 4 August and 27 October 2018, and 9 February and 16 November 2019.
3. However, the practitioner submits that there are three areas of factual dispute relating to the particulars of Complaint Two.
4. First, that he inappropriately instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist at PNW Toongabbie on 23 December 2017 from 3.20pm to 4pm and on 24 December 2017 between 9 and 9.30am.
5. Secondly, that he inappropriately instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist at PNW Quakers Hill on 16 November 2019. As to this particular, there is only a minor dispute between the parties as to the time period over which the conduct occurred. The Commission contends that it was from 9am to 12:30pm; the practitioner's position is that it was from 9am to 10:30am.
6. Thirdly, that he made certain false and/or misleading information to the Pharmacy Council in the email of 25 September 2020 from his legal representative.
7. We shall consider each disputed particular in turn.
The practitioner inappropriately instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist at PNW Toongabbie on 23 December 2017 from 3.20pm to 4pm and on 24 December 2017 between 9 and 9.30am.
The Commission's evidence and submissions
1. The Commission relied upon the evidence of Witness A, who provided a statement dated 10 September 2020 and was cross-examined.
2. Witness A was employed by PNW Toongabbie as a pharmacy assistant and dispense technician from 2013 to late 2018. As set out in her statement, her evidence was that on 23 December 2017 the practitioner left the pharmacy and advised staff to dispense medications without a pharmacist present. He requested that staff send him a picture of prescriptions before they were given to patients. Staff would take a photo of the medication, dispense label and the prescription and send it to the practitioner for approval via text. If a patient required advice or had questions, staff would call the practitioner and he would speak to the patient over the phone. If the practitioner was not available, the technicians would give the advice. On 24 December 2017, a pharmacist did not show up and so staff members opened the pharmacy. From 9:00 to 9:30am, the practitioner advised staff to dispense without a pharmacist, following the same process as the previous day.
3. The Commission submits that the Tribunal would find Witness A a credible and reliable witness, and that we should prefer her evidence to that of the practitioner, noting that she made appropriate concessions, including that the times set out in her statement were approximate and were based on a review of her text messages (a copy of which accompanied her statement). Further, the Commission submits that she was adamant in rejecting the suggestion that she was sending the practitioner photographs of prescriptions and medicines while he was in the store. That it submits makes no sense. If there was a pharmacist on site, it was the usual practice to take scripts directly to them, and there was no practice of sending messages to the practitioner while he was on-site. Witness A also recalled being provided with the keys to the pharmacy on 23 December 2017, and opening the pharmacy the following day. It was not suggested that she had any motive to lie.
4. The Commission further submits that the Tribunal would also more readily accept Witness A's account, supported by copies of the text messages containing photos of medicines and prescriptions (attached to her statement) given that it mirrors the process employed by the practitioner when operating the Quakers Hill pharmacy without a pharmacist present. In addition, Witness B, a pharmacist employed by the practitioner, provided evidence that on 18 January 2020 she was instructed to follow the same process in approving medicines to be dispensed by staff at Quakers Hill, attaching numerous messages demonstrating this.
5. To the extent that the practitioner places reliance on the rosters to substantiate his version of events, the Commission submits that the rosters are unreliable as evidence of what in fact happened on a particular day, given that the rosters for 16 November 2019 indicated that the wrong pharmacist was present on that day and the rosters were incorrectly relied upon by the practitioner in correspondence with the Council in an effort to refute the suggestion that the Quakers Hill pharmacy was operated without a pharmacist on 4 August 2018, 27 October 2018 and 9 February 2019. Contrary to what those rosters suggested, the practitioner ultimately conceded (in the light of evidence produced by Witness C) that the Quakers Hill pharmacy operated for part of each of those days without a pharmacist present. Finally, as became apparent in response to questions from the Tribunal, the rosters are in any event riddled with internal inconsistencies.
The practitioner's evidence and submissions
1. For his part, the practitioner's relevant evidence was that:
1. the PNW Toongabbie pharmacy involved a retail, general patient division and a physically separate area (within the same approved premises) for the preparation of scripts for aged care patients. The aged care division was accessed by a doorway at the rear of the dispensary;
2. as it was two days prior to Christmas and the pharmacy would be closed over the forthcoming Monday, the aged care division of the pharmacy was busier than usual and the practitioner was training Witness D, one of the pharmacists, on how to deal with the aged care scripts on both days;
3. pharmacists and technicians in the aged care division would usually come in earlier than opening time, around 7.45am to deal with the overnight admissions and scripts associated with overnight or emergency admissions, which could be between 3 to 20 orders to fill.
1. As to 23 December 2017, the practitioner gave evidence that:
1. there were two pharmacists, in addition to the practitioner, rostered to work at PNW Toongabbie on the day;
2. the roster confirms Witness D was the pharmacist on duty at PNW Toongabbie that day;
3. Witness D was also present at PNW Toongabbie up to and after closing;
4. Witness D and Witness A were in the same pharmacy but physically separated, with Witness A in the retail section and him in the aged care section at the rear of the pharmacy;
5. he was present at the pharmacy, read each of the relevant scripts, checked the medicine, counselled the patient directly and requested Witness A to prepare the labels;
6. Witness A was responsible for assembling labels of the prescription medication by putting data in the computer to print labels, correctly affixing labels to the relevant medication packaging (which was within the job description of a pharmacy assistant and dispensary technician) which he had already checked;
7. while he was present in the pharmacy in the aged care division, he asked Witness A to send him photographs of the labels on prescription medication to ensure that there was no error in the labels required, which allowed him to be in the aged care division of the pharmacy attending to the tasks there;
8. Witness A's first text message commenced at 3.56pm (the pharmacy closed at 4pm);
9. the last script dispensed on the day was dispensed by the practitioner, being for an aged care patient (Witness E) whose prescription was from Witness F a known aged care prescribing doctor and the labelling and packaging was done by the practitioner and the aged care team not Witness A.
1. As to 24 December 2017, the practitioner gave evidence that:
1. the practitioner attended PNW Toongabbie early to check whether there were aged care scripts to be filled on the day before Christmas, which given the day (Sunday) was not a normal opening day for the aged care division but owing to Christmas he anticipated a greater volume. The practitioner also wanted to be there to support Witness D whom he was training with respect to aged care scripts;
2. Witness D was the pharmacist on duty at PNW Toongabbie that day as confirmed by the roster;
3. the same process as occurred on 23 December 2017 occurred on this date in that both the practitioner and Witness A were in the same pharmacy – he in the aged care division she in the retail division – the practitioner read each of the relevant scripts, checked the medicine, counselled the patient directly and requested Witness A to prepare the labels and Witness A texted the labels to the practitioner for checking;
4. in the period of time Witness A texted the practitioner for checking labels between 9.00 and 9.30am, the practitioner was in the aged care division of the pharmacy and in respect of the prescriptions the subject of the text messages on this date, the practitioner had checked the scripts and prepared the medication ready to be packaged and dispensed to the retail patients.
1. The practitioner submits that Witness A's evidence should be approached with some caution given that:
1. at the time she made her statement in September 2020 about the events almost 3 years previously, Witness A had no independent recollection of the events and reconstructed the account of the day by consulting her text messages only;
2. Witness A could not recall who else was present at the pharmacy on either day, including Witness D who was rostered to work on both days;
3. Witness A accepted that the pharmacy had an aged care division at the back of the pharmacy behind the dispensary;
4. Witness A accepted that she did not work in the aged care division and was not involved in dispensing aged care scripts; and
5. Witness A could not positively recall, one way or another, whether the practitioner was in the aged care division during the times in question. Instead, it emerged that her evidence that the practitioner was not present was not based on any actual recollection but only upon Witness A's supposition that this was the case, as it "made no sense" and was "not usual practice" for him to be working out back and receiving pictures of medicine labels by SMS.
1. The practitioner submits that Witness A's supposition does not afford a sound basis for the Tribunal to be "comfortably satisfied" that he was not present as alleged by the Commission. On the basis of the concessions made by Witness A, the practitioner submits that the Tribunal should find the Commission has not established particular 1 of Complaint Two with respect to PNW Toongabbie as pleaded in the Amended Complaint.
2. In addition, the practitioner submits that there is another important reason why the particular as framed is not made out. He submits that independently of whether he was present during the time periods on both days, the evidence establishes that there was another registered pharmacist, Witness D, who was present. Here the practitioner relies on:
1. the roster recording identifying Witness D as being rostered on both dates;
2. his deposing that on his recollection Witness D was present on both dates (about which he was not cross examined);
3. Witness A could not recall whether or not Witness D was present;
4. the Commission, which bears the onus, has adduced no evidence that Witness D was not present; and
5. although it was open for the Commission to call Witness D as a witness (and despite it being aware of the practitioner's evidence that Witness D was present on both dates), it did not do so.
1. In the circumstances, the practitioner submits that the Commission has not established the subject particular. He submits that although the Commission seeks to impugn the reliability of the rosters, that submission, even if it were accepted, does not fill the evidentiary void and establish what the Commission must prove, namely, that Witness D was not present. In any event, the submission is not open to be made, and should not be accepted, in circumstances where the Commission did not explore the reliability of the rosters with the practitioner in cross- examination or put to him that they were inaccurate in the relevant respect so far as they related to Witness D.
The Commission's submissions in reply
1. Relevantly, the Commission submitted that the practitioner's contentions that on 23 December 2017 he had asked Witness A to send him text messages despite being present in the pharmacy and to the effect that on 24 December 2017 she followed the same process of her own initiative are inherently improbable and were rightly rejected by Witness A as making no sense.
2. It is also improbable that that process would have been followed if, as the practitioner now appears to contend as part of an alternative defence, Witness D was present in the pharmacy at the relevant times. The practitioner did not give evidence that Witness D was present at the relevant times. His evidence was that Witness D was rostered on each day, that he was training Witness D on 23 December 2017 and that he wanted to be with Witness D on 24 December 2017. While the practitioner exhibited a letter from Witness D to his affidavit, notably that does not state that Witness D was working at the pharmacy on 23 and 24 December 2017.
3. Together with being unreliable, the rosters do not indicate that a person was present for the whole of any particular day. The practitioner's contention that such a submission is not open because the reliability of the rosters was not explored with the practitioner in cross-examination should be rejected.
4. The Tribunal should reject the submission that the Commission was obliged to itself call Witness D, or that its failure to do so supports the practitioner's case.
Conclusion
1. As noted above, Witness A was required for cross-examination. We considered that she reliable and honest witness, who was doing her best to assist the Tribunal in its deliberations. It was put to her that the practitioner was present on 23 and 24 December for the timeframes in question. She was quite robust in not accepting that proposition. When it was put to her that she could not be certain that the practitioner was not in the aged care packing room attending to medicines on the two time periods in question, she said that "I don't believe he was because he sent photos of the scripts. If he was there we would have walked them into him". When further examined about the events of those two days she honestly stated that she could not recall whether he was, "not with certainty", but could not recall him being there.
2. We consider there is substance in the Commission's submissions that Witness A was a credible and reliable witness, and that we should prefer her evidence to that of the practitioner. She did make appropriate concessions during the course of her cross-examination, and she was adamant in rejecting the suggestion that she was sending the practitioner photographs of prescriptions and medicines while he was in the pharmacy. We accept that if there was a pharmacist on site, it was the usual practice to take scripts directly to them, and there was no practice of sending messages to the practitioner while he was on-site. Witness A also recalled being provided with the keys to the pharmacy on 23 December 2017, and opening the pharmacy the following day. It was not suggested that she had any motive to lie.
3. On the balance of probabilities, we find this particular established.
The practitioner inappropriately instructed staff to carry on the business of a pharmacy in the absence of a registered pharmacist at PNW Quakers Hill on 16 November 2019.
1. There is only a minor dispute between the parties as to the time period over which the conduct occurred. The Commission contends that it was from 9am to 12:30 pm; the practitioner's position was that it was from 9am to 10:30am.
The Commission's evidence and submissions
1. The Commission's evidence is found primarily in the statement of Witness C dated 20 May 2020. Witness C was not required for cross-examination and the Commission submits that his unchallenged evidence should be accepted.
2. Witness C was at the time of his statement 21 years of age and was studying Medical Science at UTS with an intention to complete a Master of Pharmacy and one day become of registered pharmacist. From 2017, he was a pharmacy assistant/dispensary technician at PNW Quakers Hill. On weekends, he would always open the pharmacy. He states that, on more than one occasion, the practitioner asked him and other employees to operate the pharmacy without a pharmacist on duty.
3. On 16 November 2019, Witness C's evidence was that Witness G had given notice that he would not be working that day as it was his daughter's birthday. There was no pharmacist, and it was "flat out busy" so the technicians kept calling pharmacists to see if they could help. Witness G left his daughter's birthday in the Sydney CBD, went home to Bexley and then to Quakers Hill to assist. He arrived around 1pm and there was a pharmacist on duty for the rest of the shift.
4. The Commission submits that that account is consistent with evidence given by Witness G himself, who was also not required for cross-examination and whose account should be accepted. Witness G states that the practitioner called him around 9:10am asking him to go to PNW Quakers Hill despite having agreed earlier to give him the day off, because it was an emergency. Witness G explained that it was his daughter's birthday, he was near the city, and would need to return home by train and then drive to Quakers Hill. He did so and arrived around 12 to 12:30pm, although he cannot recall the precise time.
5. The Commission submits that that the Tribunal would prefer that unchallenged evidence, which includes evidence from the pharmacist who in fact attended on the day, to the evidence of the practitioner that a pharmacist was present from about 10:30am.
6. The Commission submits that the practitioner's account is based on an email from Witness H to him dated 30 September 2020. That email relevantly states that on 16 November 2019 Witness H was working as a dispensary technician and communicating with the practitioner by text until 10:28am, and from then onwards Witness I was present in the shop as pharmacist until close. The Commission submits that it can be inferred from the subject of that email ("RE: Request for verification of events 04.08.18 and 09.02.19), the body of Witness H's email, and the practitioner's email forwarding it to his lawyers ("[Witness H's] response confirming the events on the days he worked") that the email was sent by Witness H at the practitioner's request. The Commission further submits that it can also be inferred from the date, and from an email of 1 October 2020 forwarding it (along with other responses obtained from staff by the practitioner) to the Council's legal representative, that the email was a document prepared in connection with the criminal proceedings then being brought against the practitioner, such that it lacks the reliability of a contemporaneous business record.
The practitioner's evidence and submissions
1. For his part, the practitioner submits that Witness I was the pharmacist present in the pharmacy from 10.28am until close of business. Not only was Witness I recorded in the roster as the pharmacist working on that day at that pharmacy, this information was confirmed to the practitioner in an email from a dispensary technician, Witness H, who was present on site that day.
2. The practitioner says it is significant that the Commission did not call either of Witness H or Witness I as witnesses, and did not cross-examine the practitioner about these matters.
3. As to the Commission's submissions as to the reliability of the email (without the matter ever having been put to the practitioner) in that the email was sent by Witness H at the practitioner's request, and in connection with the criminal proceedings then being brought against the practitioner, it is submitted that this submission "goes nowhere".
4. In conclusion, the practitioner submits that the Commission bears the onus, and given the "clear conflict" in the evidence the issue cannot be resolved and the allegation is not made out. The Tribunal should proceed on the basis of the practitioner's admission that a pharmacist was not present but only from 10:30am.
5. Nevertheless, the practitioner concedes that the difference in time periods is, in the scheme of the conduct alleged, immaterial, and that whatever time a pharmacist was onsite, the pharmacy remained without a pharmacist for part of the day, which the practitioner properly concedes was wrong and of itself sufficient to amount to unsatisfactory professional conduct, which is why he admits Complaint Two.
The Commission's submissions in reply
1. Contrary to the practitioner's submissions, the Commission submits that the conflict in evidence should be resolved in favour of the Commission's witnesses Witness C and Witness G, who provided statements for the purposes of the proceeding and were not required for cross-examination. There is no inconsistency in their evidence; with Witness G's recollection of between 12 and 12:30pm being consistent with Witness C's recollection of Witness G arriving around 1pm. Each gave consistent, detailed and specific evidence that Witness G had been given the day off to attend his daughter's birthday party, but was recalled to work.
2. That evidence was uncontested and is to be preferred to the practitioner's, which is based on an email sent on 30 September 2020 from Witness H to the practitioner. Contrary to what was submitted by the practitioner, the Commission's submissions regarding the probative value of that email do not depend upon any allegation that the practitioner deliberately procured a false email from an employee, but rather upon the uncontroversial proposition that an email prepared in the context of extant or anticipated proceedings lacks the reliability of a contemporaneous business record (or evidence given or to be adopted on oath). It is plain from the practitioner's own evidence and contemporaneous correspondence by his representatives that these emails were obtained by him from his staff for the purpose of agreeing a statement of facts in the criminal proceedings. And so much now appears to be common ground.
3. The Commission was not required to call either Witness H or Witness I or to cross-examine the practitioner about these matters in circumstances where their evidence was uncontested.
Conclusion
1. We are satisfied that the weight of the evidence, in particular given the uncontested evidence of Witness C and Witness G, establishes this particular on the balance of probabilities.
The practitioner made certain false and/or misleading information to the Pharmacy Council in the email of 25 September 2020 from his legal representative.
The Commission's evidence and submissions
1. The allegation is that the practitioner provided false and/or misleading information to the Council through representations made by his legal practitioner on his behalf in an email of 25 September 2020 to the Council in which he denied that on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019 PNW Quakers Hill operated without a pharmacist.
2. A draft statement of facts to be tendered in the Local Court proceedings had stated "the defendant [that is the practitioner] had previously operated [PNW] Quakers Hill without the supervision of a pharmacist on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019. The email of his solicitor to the Council dated 25 September 2020 (titled "Pharmacy Council of NSW v Kaye – Draft Statement of Facts") relevantly stated:
In relation to paragraph 18, I am instructed that Mr Kaye does not agree to that fact on the basis that the facts demonstrate the contrary. …
Mr Kaye has examined his business records for [PNW Quakers Hill] in particular the Register of Drugs of Addiction (DD Book), which shows that a pharmacist was present on the dates in question. Mr Kaye's work rosters also confirm that the relevant pharmacist recorded in the DD Books was the rostered pharmacist for the dates in question.
By way of context, the DD Books are written in every time a quantity of the relevant drug is taken from the safe, placed into the safe or in the event of stocktake. There is a DD Book for each specific category of drugs that require a level of control such as opiates, stimulants and other categories that have potential for a higher risk of misuse and thus have a higher level of control by way of being written in the DD book for the relevant drug and signed off the by the pharmacist working at the premises. In this case the relevant DD Books over the course of the four relevant dates related to the drugs concerta, codeine linctus, endone, norspan, and Ritalin (only some of the drugs were dispenses on each of the relevant days). The DD Books are hard copies, not digital books, kept in a safe on the premises of the Quakers Hill Pharmacy. A pharmacist must be present at the pharmacy in order to complete the information in the book. They are responsible for confirming all entries and details in respect of the detail of supply, quantity, strength, and the name and address of the person to whom the drug was dispensed. The pharmacist's signature is that contained in the last column titled "Signature of dispenser or administrator".
1. The Commission submits that, objectively read, the email contains a denial that on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019 PNW Quakers Hill operated without a pharmacist. The practitioner's "non-agreement" is expressly premised on a positive assertion that "the facts" demonstrated to the contrary. "The facts" relied upon are primarily entries in the DD Books which "a pharmacist must be present at the pharmacy" to complete. This was false and/or misleading in circumstances where it is now common ground that PNW Quakers Hill operated without a pharmacist on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019, and the DD Books could not be relied upon to establish the presence of a pharmacist because on the very days that no pharmacist was present the DD Books would be filled in retrospectively.
2. The distinction subsequently drawn by the practitioner as to whether a pharmacist was absent for the whole or only part of those dates (in the face of evidence contradicting his account) finds no support in the text of the email at and is irrelevant to whether the email itself contained false and/or misleading information.
3. In the circumstances, the Commission submits that the Tribunal should find this particular proven.
The practitioner's evidence and submissions
1. The practitioner's submissions on this issue are lengthy and we paraphrase them as follows.
1. the 25 September 2020 email was made in the context of criminal proceedings;
2. in the course of the prosecution of the Local Court proceedings, proceedings, the legal representatives of the prosecutor and the practitioner worked to negotiate an agreed statement of facts in respect of the two charges to which the practitioner intended to plead guilty. In the course of the parties working on a draft statement of agreed facts, the practitioner denied draft particular 18 regarding PNW Quakers Hill being operated without a pharmacist on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019;
3. as originally drafted, the draft statement of agreed facts (prepared by the Council) contained no qualification for part of the day and on its plain reading conveyed that the practitioner was absent for the whole of each day;
4. it is axiomatic that an accused person is entitled to defend himself or herself at trial, without thereby attracting the risk of a more serious penalty: Siganto v The Queen (1998) 194 CLR 656 at [22]. Thus, the practitioner was entitled to put the prosecution to proof of a factual matter in aggravation of the main offence;
5. it is in the context of these criminal proceedings that the Tribunal should assess the correspondence between the practitioner's legal representative and the prosecutor. Contrary to the Commission's submission, the distinction between a pharmacist being present for the whole day and part of those dates is both relevant and important. The practitioner was responding to an alleged factual particular, which on its plain reading did not qualify that the absence from the pharmacy was for part only of the dates in question. It was open to the practitioner to read that factual particular as alleging the whole day. Support for that conclusion is also found in the fact that the Commission later amended the draft agreed facts in the criminal proceedings to refer to part only of the relevant days;
6. at the time of the 25 September 2020 email from his legal representative, the practitioner had no evidence from the Council in support of that draft particular 18. Only after the 25 September 2020 statement did the prosecution disclose the statement of Witness C. Upon receipt of the statement the practitioner contacted staff and reviewed his text messages and having made those inquiries instructed his legal representatives to agree to the fact that PNW Quakers Hill was operated without a pharmacist for part of each day of 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019.
7. on receipt of those documents, the Council accepted the position as admitted by the practitioner, namely that on the dates in question PNW Quakers Hill, was operated without a pharmacist for part of each day. That agreed fact was recorded at paragraph 18 of the agreed statement of facts signed by both the prosecution and the practitioner.
The Commission's submissions in reply
1. The Commission submits in reply that the practitioner's submissions are based on the assertion that on 25 September 2020 the practitioner denied operating PNW Quakers Hill without a pharmacist for the whole day. However, that assertion has no foundation in the email.
2. The email, when objectively read, is a denial and not merely a "non-admission". That is significant because, while it may be accepted as axiomatic that an accused person is entitled to defend himself, put the prosecution to proof, and indeed remain silent in doing so, the practitioner did none of these things. Rather, through his representatives he positively asserted that "the facts" demonstrated to the contrary of the proposition that PNW Quakers Hill operated without a pharmacist on 4 August 2018, 27 October 2018, 9 February 2019 and 16 November 2019. He did so in reliance upon DD Books which were unreliable on the very days where a pharmacist was not present.
3. Any submission suggesting that the provision of false or misleading information to the Council in the context of criminal proceedings is not improper or unethical, then that submission is not supported by any identified authority and should be rejected. The consequence of the Council bringing such proceedings is that, as the Commission accepts, the practitioner was entitled to defend himself, remain silent or put the Council to proof. To that limited extent, it may be said that the practitioner duty of candour was moulded by the context. However, he was not entitled to provide false or misleading information to the Council.
Conclusion
1. We accept the Commission's submissions on this particular which we find established. We consider that the subject information in the email was, at least, misleading, and we see no substance that the particular cannot be established by reason that the information was provided to the Council during the course of a criminal prosecution in the Local Court. We consider that there is substance in the Commission's submissions that the practitioner was entitled to defend himself, remain silent or put the Council to proof, but was not entitled to provide false or misleading information to the Council.
Conclusion re Complaint Two
1. For the above reasons we find all of the particulars of Complaint Two to be established.
2. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated:
21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30].
22. The Macquarie Dictionary offers several definitions of both words which include:
Improper
2. not in accordance with propriety of behaviour, manners, etc: improper conduct.
Unethical
1. contrary to moral precept; immoral.
2. in contravention of some code of professional conduct.
23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote:
Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both.
24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53].
25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct.
26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances.
1. Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60].
2. We are satisfied that the established particulars of complaint Two, including the conduct admitted by the practitioner, was clearly unethical and that he is therefore guilty of unsatisfactory professional misconduct as defined in s 139B(1)(l) of the National Law.
Consideration of Complaint Three
1. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he contravened a provision of the National Law, specifically by failing to notify that National Board within seven days of being charged, and then found guilty, of the offence of larceny referred to in Complaint One.
2. Under s 139B(1)(b) of the National Law a contravention by a practitioner of a provision of the National Law is, by definition, unsatisfactory professional conduct.
3. Section 130(1) of the National Law requires a registered health practitioner to give the National Board established for the practitioner's health profession written notice within 7 days of becoming aware that a "relevant event" has occurred. A "relevant event" includes the practitioner being charged with an offence punishable by 12 months' imprisonment or more (s 130(3)(a)(i)) and the practitioner being convicted of or the subject of a finding of guilt for an offence punishable by imprisonment (s 130(3)(a)(ii)).
4. The Complaint arises from the practitioner's failure to notify the National Board within seven days of being charged with the offence of larceny on 22 October 2019 (particular 1) and being found guilty of that offence on 31 January 2020 (particular 2). Larceny carries a penalty of imprisonment for five years: Crimes Act. A practitioner's awareness of the reporting requirements is not relevant to a breach of it and a finding of unsatisfactory professional misconduct: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [58]-[59].
5. It is not in dispute that the practitioner's failed to notify the National Board as required, the Complaint, and the background and particulars to it, having been admitted.
6. The practitioner has admitted that his conduct the subject of Complaint Three and the particulars thereof was unsatisfactory professional conduct under s 139B(1)(b) of the National Law. Independently of this admission, we find this Complaint proved.
Consideration of Complaint Four
1. Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or
2. 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.
1. The Commission submits, and we accept, that in assessing whether the practitioner's conduct amounts to professional misconduct, the relevant principles include the following:
1. there is no category of unsatisfactory professional conduct which is not capable of forming professional misconduct: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21];
2. the traditional common law definition of professional misconduct is that ''which would be reasonable regarded as disgraceful or dishonourable by professional brethren of good repute and competency": Allinson v General Council of Medical Education and Registration [1984] 1 QB 750;
3. professional misconduct may be made out by a deliberate departure from professional standards or '"such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration": Pillai v Messiter [No 2] (1989)16 NSWLR 197;
4. the gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
1. The allegation of professional misconduct is based upon the conduct forming Complaint Two and Complaint Three, with particulars 1 and 2 of Complaint Two relied upon individually and in cumulation with Particulars 1 and 2 of the Complaint Three.
2. We accept the Commission's further submissions that:
1. the conduct forming the basis of Complaint Two involved a serious departure from professional standards. Instructing staff to carry on the business of a pharmacy in the absence of a registered pharmacist involved a breach of a professional standard of great importance;
2. doing so carried significant risk to the public and breached numerous professional standards, including as to the supply of schedule 3, 4 and 8 medicines.
3. in respect to Schedule 8 medicines, it involved such drugs being dispensed in the absence of a pharmacist with DD Books being filled in retrospectively, circumventing the important protections the registers were intended to afford against abuse. It also placed junior staff under considerable stress, caused them to mislead patients, and exposed them to abuse from dissatisfied patients. It also meant that junior staff had access to Schedule 8 medication when only the pharmacist should have access;
4. the provision of false and misleading information to the Council and Commission also involved a serious departure from expected standards of professional conduct given the critical importance to the regulatory system of practitioners being truthful and candid in their dealings with professional regulators.
1. The practitioner admits Complaint Four and accepts that his conduct in Complaints Two and Three cumulatively amount to professional misconduct under either limb of s 139E of the National Law, namely, unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or more than one instance of unsatisfactory professional conduct (being Complaints Two and Three) 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.
2. We agree. The practitioner's unsatisfactory professional conduct, individually and cumulatively, was sufficiently serious so as to amount to professional misconduct.
Other
1. On the second day of the hearing, the respondent made an application that Senior Member Chen recuse himself from any further hearings of this matter. The basis of the application was apprehended bias and, after the receipt of submissions following the hearing, Senior Member Chen published his reasons for rejecting that application. His decision was published at the same time as these reasons and it is not necessary to repeat them here.
Conclusion
1. It is sufficient to conclude and to order that:
1. Complaint One is established, that is that the practitioner was convicted of criminal offences and made the subject of a criminal finding in New South Wales.
2. Complaint Two is established, namely that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
3. Complaint Three is established, namely that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) in that the practitioner has contravened a provision of the National Law.
4. Complaint Four is established, namely that the practitioner is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).
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ATTACHMENT A
(redacted)
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: 25 February 2022