Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wong [2023] NSWCATOD 10 Hearing dates: 16 January 2023 Date of orders: 3 February 2023 Decision date: 03 February 2023 Jurisdiction: Occupational Division Before: G Blake AM SC, Senior Member J Chen, Senior Member J Zwart, Senior Member M Christensen, General Member Decision: (1) The respondent's registration is cancelled. (2) The respondent may not apply for review of order (1) above for two years from the date of this decision. (3) The respondent is to pay the costs of the applicant of the proceedings as agreed or assessed. Catchwords: HEALTH – Professional registration and discipline – pharmacist - where pharmacist is guilty of unsatisfactory professional conduct and professional misconduct, is not competent to practice as a pharmacist and is not otherwise a suitable person to hold registration as a pharmacist — what protective action should be taken Legislation Cited: Evidence Act 1995 (NSW) - s 140 Health Care Complaints Act 1993 (NSW) - s 21A Health Practitioner Regulation National Law (NSW) - ss 3A, 39, 139, 139B, 139E, 144, 145E, 145F, 149, 149C, 150, 150D, Sch 5 Poisons and Therapeutic Goods Act 1966 (NSW) - ss 8, 36AA Poisons and Therapeutic Goods (Poisons List) Proclamation 2016 (NSW) Poisons Standard December 2019 (Cth) Therapeutic Goods Act 1989 (Cth), s 52D Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Browne v Dunn (1894) 6 R 67 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Picones [2018] NSWCATOD 56 Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Wong [2022] NSWCATOD 59 Lee v Health Care Complaints Commission [2012] NSWCA 80 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Qasim v Health Care Complaints Commission [2015] NSWCA 282 The Queen v The Herald & Weekly Times Pty Ltd [2021] VSC 253 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Chun Wah Wong (Respondent) Representation: Counsel: N Wootton (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2021/00363168 Publication restriction: Nil REASONS FOR DECISION Overview 1. In these proceedings the applicant, the Health Care Complaints Commission (who is also referred to as the Commission or the HCCC), is seeking findings against the respondent, Chun Wah Wong, a pharmacist (who is also referred to as the practitioner), that he is guilty of unsatisfactory professional conduct and professional misconduct, is not competent to practice as a pharmacist, and is not otherwise a suitable person to hold registration as a pharmacist within the Health Practitioner Regulation National Law (NSW) (National Law), and the making of consequential protective orders. 2. We have decided to make: 1. the following findings: 1. that the respondent is guilty of unsatisfactory professional conduct within s 139B(a) and (l) of the National Law; 2. that the respondent is guilty of professional misconduct within s 139E(b) of the National Law; 3. that the respondent is not competent to practice as a pharmacist within s 139(a) of the National Law; 4. that the respondent is not otherwise a suitable person to hold registration as a pharmacist within s 144(e) of the National Law; 1. the following orders: 1. that the registration of the respondent as a pharmacist is cancelled; 2. that the respondent may not apply for a review of the cancellation order in paragraph (a) above for a period of two years from the date of this decision; 3. that the respondent is to pay the applicant's costs of the proceedings. The factual background 1. The respondent was first registered as a pharmacist on 10 January 2017 following completion of a Bachelor of Pharmacy degree at the University of Sydney. He completed his intern year at Chemist Warehouse in Chatswood, then worked for dispensing software company Corum Health as a contractor, followed by a period of time in Hong Kong and approximately one month at Clemton Park Priceline Pharmacy. He was employed at Bowens Pharmacy Wyoming for approximately six months until his employment was terminated on 23 January 2020. 2. On 21 January 2020, the Poisons Standard December 2019 (Cth), which contained the Standard for the Uniform Scheduling of Medicines and Poisons (the Standard) and made under s 52D(2)(b) (within Part 6-3) of the Therapeutic Goods Act 1989 (Cth) (TG Act), was in force. Under the Standard, poisons were classified according to the Schedules in which they were included. Schedule 4 contained "Prescription Only Medicine" being "Substances, the use or supply of which should be by or on the order of persons permitted by State or Territory legislation to prescribe and should be available from a pharmacist on prescription." Schedule 4 included pregabalin. By cl 3 of the Poisons and Therapeutic Goods (Poisons List) Proclamation 2016 (NSW), under s 8(6) of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTG Act), Schedules 1 to 9 of the current Poisons Standard (within the meaning of Part 6-3 of the TG Act), as in force from time to time, are adopted as the Poisons List. Section 36AA of the PTG Act prohibits the dispensing of any substance on the Poisons List by a person other than a pharmacist or a person acting under the personal supervision of a pharmacist on the prescription of a medical practitioner, a nurse practitioner, a midwife practitioner, an optometrist, a podiatrist, a dentist or a veterinary practitioner. 3. On 22 January 2020, the Pharmacy Council of NSW (the Council) received a complaint from Ms Jayne Cannon, the proprietor of Bowens Pharmacy Wyoming, alleging that on 21 January 2020 the respondent had removed Lyzalon® 300mg (which is a trade name of pregabalin) capsules from the Return of Unwanted Medicines (RUM) bin, removed capsules from packaging, placed the capsules in a vial and placed the vial in his bag (the Cannon complaint). 4. On 18 February 2020, the delegates of the Council held a hearing under s 150 of the National Law in response to the Cannon complaint in which it heard oral evidence of the respondent who was assisted by his father Mr Tai Wong (Mr Wong). 5. On 2 March 2020, the delegates of the Council decided to suspend the registration of the respondent pursuant to s 150(1)(a) of the National Law and to refer the matter for investigation by the HCCC pursuant to s 150D of the National Law (the Council decision). The proceedings The procedural history 1. On 22 December 2021, the applicant commenced these proceedings against the respondent by filing an application for disciplinary findings and orders, in which the respondent is referred to as the practitioner, and which relevantly provides: "3. ORDERS SOUGHT The Applicant seeks the following orders: In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks: 1. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law, with a non-review period of 2 years 2. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a),(b) and (I) and/or professional misconduct within the meaning of section 139E and/or is not competent within the meaning of section 139(a) and/or not a suitable person to hold registration under section 144 (e) of the National Law." 1. On 11 March 2022, the applicant filed an Amended Complaint. 2. On 10 June 2022, the Tribunal dismissed the application for miscellaneous matters of the respondent filed on 28 January 2022 and reserved the costs of the application to the substantive hearing: Health Care Complaints Commission v Wong [2022] NSWCATOD 59 (the 10 June 2022 Decision). 3. On 8 July 2022, the Tribunal made procedural directions including an order that the respondent is to serve a reply and any material on which he relied on or before 30 September 2022. 4. On 19 October 2022, the applicant filed the documents on which it relies (the applicant's bundle of documents). 5. On 21 October 2022, the respondent filed the documents on which he relies (the respondent's bundle of documents). 6. On 23 December 2022, the Tribunal made a procedural direction that at the hearing the issues of culpability, and if appropriate any protective orders, would be considered. 7. The respondent has not filed any reply. The Amended Complaint 1. The Amended Complaint relevantly provides (omitting the strikethrough and bold text indicating amendments): "BACKGROUND TO ALL COMPLAINTS The practitioner graduated with a Bachelor of Pharmacy from Sydney University in 2016 and was first registered as a pharmacist in New South Wales on 10 January 2017. During the period of the events that are the subject of the complaints ("relevant period") the practitioner was an employed pharmacist at Bowens Pharmacy, Wyoming Shopping Centre, Pacific Highway and Kinarra Avenue, Wyoming, NSW 2250 ("the pharmacy"). The practitioner was employed at the pharmacy on a part-time basis. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (I) of the National Law in that the practitioner; (i) engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (ii) engaged in improper or unethical conduct relating to the practice of pharmacy. PARTICULARS OF COMPLAINT ONE 1. On 21 January 2020, during his shift at the pharmacy the practitioner: a) inappropriately accessed and opened a container containing unwanted medications returned to the pharmacy by customers ("the container") and searched the contents of the container; b) stated in the presence of a pharmacy assistant who was on duty at the pharmacy words to the effect of "Why would I do that when I can get them for free?" c) removed a dose-aid roll containing eleven (11) pregabalin (trade name Lyzalon®) 300mg capsules ('the drugs'), a schedule 4 (prescription-only) drug; d) took personal possession of the drugs and removed them from the pharmacy. 2. By his conduct at particular 1, the practitioner supplied himself with a schedule 4 (prescription-only) drug, namely pregabalin 300 mg capsules without a prescription. Particular 1 and particular 2 are relied upon as constituting unsatisfactory professional conduct in combination. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (I) of the National Law in that the practitioner; (i) engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (ii) engaged in improper or unethical conduct relating to the practice of pharmacy. PARTICULARS OF COMPLAINT TWO 1. The practitioner provided misleading, inconsistent and/or untruthful information to the Pharmacy Council and the Health Care Complaints Commission during their investigations concerning his conduct, including, but not limited to, advising: a. the Council in email dated 2 February 2020, that he returned the drugs to another pharmacy, that did not consume prescribed drugs without a prescription, that he had no time to consult a doctor. b. the Council in email dated 2 February 2020 and in written submissions dated 9 February 2020, that he removed the drugs to have them on hand to aid his sleep due to an increased workload at the pharmacy and that he felt more assured having the drugs "just in case". c. the Council delegates at the section 150 hearing on 18 February 2020, that he had destroyed the drugs by piercing each capsule and transferring the powder to a pill container putting an alcohol swab on the contents to render them unusable, across two separate containers. d. the Council delegates at the section 150 hearing on 18 February 2020 and to the Health Care Complaints Commission by written correspondence dated 27 May 2020, that he had destroyed the drugs to prevent their re-use and took the destroyed drugs home as a 'placebo effect' to make him feel drowsy. Particulars 1(a) to (d) are relied upon individually and cumulatively to constitute unsatisfactory professional conduct. COMPLAINT THREE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has engaged in: (i) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (ii) 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. PARTICULARS OF COMPLAINT THREE The particulars of Complaint One and Two are repeated and relied upon both individually, and cumulatively. COMPLAINT FOUR Is not competent to practice as a pharmacist within the meaning of section 139(a) of the National Law. PARTICULARS OF COMPLAINT FOUR 2. The practitioner failed, without reasonable excuse, to comply with a direction by the Council under section 145E of the National Law to undergo an examination by a specified health practitioner, Dr Anthony Samuels, scheduled for 18 August 2020. Pursuant to section 145F of the National Law the practitioner's failure to attend Dr Samuels' examination is evidence that the practitioner does not have sufficient physical or mental capacity to practise pharmacy. 3. The particulars of Complaint One and Two are repeated. By reason of the particulars of Complaint One and Two the practitioner has demonstrated: a. a lack of mental capacity; b. deficiencies in reasoning; c. diminished insight into his professional obligations to regulatory authorities; d. diminished insight into and/or capacity to respond to his professional obligations; 4. The practitioner is vulnerable to significant influence by his father in relation to his insight into his professional obligations and responses to them, as shown in: a. The father's repeated interjections in the practitioner's discussion with the pharmacy on 23 January 2020 for the purposes of the pharmacy's investigation of allegations about the practitioner, b. The father's email response on 23 and 24 January 2020 to the pharmacy's decision to summarily dismiss the practitioner, c. The father's repeated interjections in the s 150 proceedings held in relation to the practitioner on 18 February 2020. COMPLAINT FIVE is not otherwise a suitable person to hold registration as a pharmacist. PARTICULARS OF COMPLAINT FIVE 1. The particulars of Complaints 1, 2 and 4 are repeated and relied upon individually and cumulatively." The hearing 1. On 16 January 2023, the hearing took place. Ms N Wootton of counsel represented the applicant. There was no appearance by or on behalf of the respondent. The respondent had previously advised on 30 September 2022 that he would not be attending future hearings. 2. The applicant relied on the following documents which were admitted into evidence: 1. tabs 3 and 5 to 45 of the applicant's bundle of documents (which was marked as exhibit A1) which included the following evidence: 1. the Cannon compliant; 2. the Council decision; 3. the witness statement of Katie Wright (Ms Wright) dated 23 September 2022 (the Wright statement); 4. the report of Dr Anthony Samuels (Dr Samuels), psychiatrist, dated 22 October 2021 (the Samuels report); 5. the report of Nerida Croker (Ms Croker), pharmacist, dated 24 August 2022 (the Croker report); 6. three CCTV files at Bowens Pharmacy Wyoming on 21 January 2020 (the CCTV files); 1. the letter dated 19 December 2022 of the applicant to the respondent (which was marked as exhibit A2); 2. the letter dated 12 January 2023 of the applicant to the respondent (which was marked as exhibit A3). 1. We note that in the respondent's 21 October 2022 submissions in [21(a)] below the respondent submitted that the Samuels report and the Croker report were inadmissible. This submission was misconceived as the rules of evidence do not apply to these proceedings. 2. The applicant sought to tender and then withdrew the 10 June 2022 Decision which was included in its List of Authorities (which was marked as exhibit MFI1). 3. We admitted into evidence the respondent's bundle of documents (which was marked as exhibit R1) which comprised the following documents: 1. the respondent's undated submission which was filed on 21 October 2022 (the respondent's 21 October 2022 submissions); 2. the respondent's submission dated 30 September 2022 (the respondent's 30 September 2022 submissions); 3. the Amended Complaint with yellow highlighting; 4. the transcript of the hearing before the delegates of the Council on 18 February 2020 (the 18 February 2020 transcript); 5. the Cannon compliant; 6. an extract of the Council decision. 1. The applicant provided a paginated version of the respondent's 30 September 2022 submissions (which was marked as exhibit MFI2). 2. The applicant relied on its written submissions dated 16 January 2023 apart from the second and third sentences of [86] and footnote 87 (the applicant's 16 January 2023 submissions), and made oral submissions. 3. At the conclusion of the hearing, we reserved our decision. 4. After we had reserved our decision, the applicant at our request provided the registration standard entitled Recency of practice of the Pharmacy Board of Australia (which was marked as exhibit A4). The issues 1. The following issues arise for determination: 1. whether the respondent engaged in the conduct constituting complaints one and two, and any such proved conduct constitutes unsatisfactory professional conduct; 2. whether any such proved conduct of the respondent for complaints one and two, individually and cumulatively, constitutes professional misconduct; 3. whether the respondent engaged in the conduct and demonstrated the characteristics constituting complaint four, and by reason of any such proved conduct and characteristics, individually and cumulatively, the respondent is not competent to practice as a pharmacist and is not otherwise a suitable person to hold registration as a pharmacist; 4. whether any protective orders should be made against the respondent; 5. whether the respondent pay the applicant's costs of the proceedings. 1. Before considering these issues, it is appropriate to set out the applicable provisions of the National Law and the applicable legal principles. The applicable provisions of the National Law 1. Part 1 (ss 1-10) contains preliminary provisions. Section 3A specifies the objective and guiding principle to be observed in the exercise of functions under the National Law, and provides: 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. Part 5 Division 1 (ss 38-41) contains provisions dealing with registration standards and codes and guidelines. Section 39 deals with codes and guidelines, and relevantly provides: 39 Codes and guidelines A National Board may develop and approve codes and guidelines— (a) to provide guidance to the health practitioners it registers; and (b) about other matters relevant to the exercise of its functions. 1. Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 139 deals with the required competence to practise health profession, and provides: 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 1. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and 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— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E contains a definition of professional misconduct of a registered health practitioner, and 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. 1. Part 8 Division 3 Subdivision 1 (ss 144-144G) contains provisions dealing with the making of complaints. Section 144 deals with the grounds for complaint about a registered health practitioner, and relevantly provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— … (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. … (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. Part 8 Division 3 Subdivision 2 (ss 145-145J) contains provisions dealing with how complaints are to be dealt with. Section 145E deals with the requirement of a registered health practitioner to undergo an examination, and relevantly provides: 145E Council may require health practitioner or student to undergo examination [NSW] (1) A Council may, by written notice given to a registered health practitioner or student against whom a complaint has been made, direct the practitioner or student to undergo an examination by a specified registered health practitioner at a specified reasonable time and place. (2) A registered health practitioner or student must not be directed to undergo an examination under subsection (1) unless it is reasonable to require the examination, given the nature of the complaint against the practitioner or student. … 1. Section 145F deals with the failure of a registered health practitioner to undergo an examination, and relevantly provides: 145F Result of failure to attend counselling or examination [NSW] A failure by a registered health practitioner or student, without reasonable excuse, to comply with a direction under section 145B to attend counselling or under section 145E to undergo an examination is, for the purposes of this Law and any inquiry or appeal under this Law, evidence that the practitioner or student— (a) for a registered health practitioner, does not have sufficient physical or mental capacity to practise the health profession in which the practitioner is registered; or … 1. Part 8 Division 3 Subdivision 6 (ss 149-149E) contains provisions dealing with the disciplinary powers of the Tribunal. Section 149 specifies the circumstances in which these disciplinary powers may be exercised, and relevantly provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner … if— (a) it finds the subject-matter of a complaint against the practitioner … to have been proved; or … 1. Section 149C specifies the powers of the Tribunal to suspend or cancel registration in certain cases, and relevantly provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or … (d) the practitioner is not a suitable person for registration in the practitioner's profession. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 13 deals with the power of the Tribunal to award costs, and relevantly provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner … concerned, or … to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. The applicable legal principles The proof of facts 1. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52]. 2. In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) at 362 Dixon J commented: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..." 1. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 (Neat Holdings) at 171 the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted] 1. Section 140 of the Evidence Act 1995 (NSW) (Evidence Act) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. 2. In approaching this issue we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (Bronze Wing) at [1], [37], [126]-[127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]. 3. The second aspect of the rule in Browne v Dunn (1894) 6 R 67 is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70], [137]. Grounds for complaint about registered health practitioner 1. In Windsor v Health Care Complaints Commission [2020] NSWCA 110 (Windsor) at [112] Gleeson JA (Leeming JA at [143] and McCallum JA at [144] agreeing) made the following observations with respect to s 144 of the National Law: "[112] The starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way for the purpose of s 144 of the National Law, when the Tribunal is exercising its powers under s 149C(1). That is, the underlying conduct relied upon for a complaint is not mutually exclusive to one of the complaints that can be made under s 144(a) to (e). …" Professional misconduct 1. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [19]-[20] Basten JA (Leeming JA at [23] agreeing) relevantly said: "[19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. … [20] 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. …" Competence to practise a health profession 1. In Windsor, the Court of Appeal dismissed an appeal by Dr Windsor against the Tribunal's ultimate finding that she was not competent to practise, which was based on two earlier findings. The first finding was that her response to the investigation of the complaint by the Council, subsequent investigation by the Commission, and decision not to participate in the proceedings before the Tribunal demonstrated Dr Windsor's diminished control over her autonomy, insight into her professional obligations, and insight and capacity to respond to the adverse effects of her personal relationship with her husband to her professional obligations. The second finding was that she did not have sufficient mental capacity to practise the health profession in which she was registered for the purposes of s 145F of the National Law by reason of her failure, without reasonable excuse, to comply with the Council's direction under s 145E to undergo an examination by Dr Samuels. In relation to the first finding McCallum JA at [144] made the following observation: "[144] … A disturbing feature of this case was Dr Windsor's notable absence in the conduct of the appeal. The Court has not heard her in person and it may be doubted that she is the author of any of the written grounds, applications, arguments or correspondence received by the Court. The Court would be astute not to suffer the appropriation of an appellant's case by a shadow litigant. The inappropriateness of granting leave to Mr Windsor to appear for the appellant or joining him as a second appellant is informed by that concern, which only serves to vindicate the Tribunal's finding that Dr Windsor had demonstrated diminished control over her autonomy to the extent that her capacity to fulfil her professional obligations was compromised." The requirement of a registered health practitioner to undergo an examination 1. In Windsor at [97] Gleeson JA (Leeming JA at [143] and McCallum JA at [144] agreeing) made the following observations with respect to ss 145E and 145F of the National Law: "[97] … One purpose of s 145E of the National Law is to protect the health and safety of the public from medical practitioners who do not have sufficient physical or mental capacity to practise: see ss 3 and 3A of the National Law. In that context, the expression "reasonable excuse" in s 145F requires an explanation to be advanced which would justify the medical practitioner's failure to comply with a direction under s 145E to undergo an examination." The exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA at [19]-[21] (Macfarlan JA at [1] and Tobias AJA at [80] agreeing) set out the principles for the exercise of the disciplinary powers of the Tribunal under Pt 8 Div 3 Subdiv 6 of the National Law: "[19] As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. … [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. [21] The task of the Tribunal … centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA at [1] and Emmett JA at [60] agreeing) emphasised that protecting the health and safety of the public is not confined to protecting future patients from the risk of harm: "[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose of the National Law: Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88]. 2. In Chen at [21]-[22] Basten JA (Leeming JA at [23] agreeing) considered the operation of s 149C of the National Law: "[21] 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. [22] 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. …" 1. In Health Care Complaints Commission v Picones [2018] NSWCATOD 56 at [103]-[105] considered cancellation of registration was the only order available to appropriately protect the safety of the public where the practitioner cannot be trusted to tell the truth: "[103] Engaging with one's professional regulator and all forms of disciplinary inquiry with diligence and honesty are fundamental requirements of any professional. [104] The ability to acknowledge errors in judgment and clinical treatment is particularly crucial for health professionals. Mistakes happen. Covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions and services because of the real and present danger that such behaviour poses to the safety of patients. Without candid admissions and the provision of assistance to peers and superiors from a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented. [105] A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in any and every health services setting. [106] In these circumstances cancellation of registration was the only order available to appropriately protect the safety of the public. …" 1. In Chen at [88] Payne JA (Basten JA at [1] and Leeming JA at [23] agreeing) considered the operation of s 149C(7) of the National Law: "[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. … 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. In Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. Meagher JA at [74] (McColl JA at [1] and Ward JA at [91] agreeing) relevantly held: "[74] The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. … In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. …" The exercise of the power of the Tribunal to award costs under Sch 5D cl 13 of the National Law 1. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]-[46] Emmett JA (Meagher JA and Beech-Jones J agreeing) set out the principles relevant to the exercise of the power of the Tribunal to award costs under cl 13 of Sch 5D of the National Law: "[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]–[52]). It has not been suggested by the Doctor that any of those factors applied. [43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). [44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. [46] The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. …" Introduction 1. Consideration of this issue involves determining whether the respondent supplied himself with a schedule 4 (prescription-only) drug, namely pregabalin 300 mg capsules without a prescription, whether the respondent provided misleading, inconsistent and/or untruthful information to the Council and the Commission during their investigations concerning his conduct, and if so whether that conduct constitutes unsatisfactory professional conduct. 2. We are satisfied that pregabalin is a substance listed on Sch 4 of the Standard and that if he supplied himself with pregabalin the respondent did so without a prescription of a medical practitioner, a nurse practitioner, a midwife practitioner, an optometrist, a podiatrist, a dentist or a veterinary practitioner. 3. To establish the respondent engaged in the conduct constituting complaint one the applicant relies on the Wright statement, the CCTV files, and the admissions of the respondent. 4. To establish the respondent engaged in the conduct constituting complaint two the applicant relies on the following evidence: 1. the email of the respondent to the Council sent on 2 February 2020 (the respondent's 2 February 2020 email); 2. the Summary of Response dated 9 February 2020 of the respondent to the Cannon complaint (the respondent's 9 February 2020 response); 3. the evidence of the respondent to the delegates of the Council at the hearing under s 150 of the National Law on 18 February 2020 (the respondent's 18 February 2020 evidence); 4. the letter dated 27 May 2020 to the Commission (the respondent's 27 May 2020 letter). 1. To establish that the conduct constituting complaints one and two constitutes unsatisfactory professional conduct the applicant relies on the Code of Conduct for pharmacists dated 17 March 2014 made by Pharmacy Board of Australia under s 39 of the National Law (the Code of Conduct) and the Croker report. 2. Before considering this issue, we have summarised the evidence and submissions of the parties. The evidence of the applicant The Wright statement 1. Ms Wright was employed by Bowens Pharmacy as a Dispensary Assistant between November 2018 and April 2020. In the Wright statement, Ms Wright explains that on 21 January 2020, she overheard the respondent talking to another employee, Brodie, and heard him state "[w]hy would I do that when I can get them for free". She states that she witnessed that the respondent had taken a dose-aid roll containing Lyzalon® yellow and white capsules. She witnessed the respondent cut slits into the dose-aid roll, remove the capsules with tweezers, and put them into a pill container. When he was finished, the respondent rolled the dose aid roll up, and threw it in the bin. The CCTV files 1. The first CCTV file depicts the respondent rummaging through a bin for a number of minutes, before removing a dose-aid roll from the bin and disappearing from the view of the CCTV footage (at 3:12-3:14 minutes). The second CCTV file depicts the same sequence of events, albeit from a greater distance and altered angle. 2. The third CCTV file depicts the respondent take the dose-aid roll to a bench, remove a pill container from his backpack, and depart with the dose-aid roll and the pill container. It subsequently depicts him returning to the backpack, and shows him placing the pill container back into his backpack (at 9:24-9:28 minutes). The admissions of the respondent 1. In the respondent's 9 February 2020, response the respondent stated that "[i]t is uncontroversial that I did take a few rubbish tablets returned by customers". 2. In the respondent's 18 February 2020 evidence, the respondent: 1. despite claiming to have "destroyed" the tablets, nevertheless admitted to keeping a container of the pills, because "I thought I would just put the container on … my desk, convincing myself that I have taken the capsule, but I haven't, because it was in a [sic] already destroyed state as a placebo effect"; 2. admitted having said those words "[w]hy would I do that when I can get them for free", but claimed it was in relation to a Netflix show and that he could download a show illegally rather than paying for the show. The respondent's 2 February 2020 email 1. In the respondent's 2 February 2020 email, the respondent stated that he "did not consume" any prescribed drugs, because he had "already disposed of the rubbish drugs safely by returning to another pharmacy". He further stated "what I did was just due to a prudent act of having some medications on hands just in case to aid my sleep in order to cater for the increased workload required by your employer …. I have no time to consult a doctor, but feeling the comfort to have some medications on hand just in case, in order to better function my duty as a pharmacist". The respondent's 9 February 2020 response 1. In the respondent's 9 February 2020 response, the respondent stated that he removed the drugs to have them on hand to aid his sleep due to an increased workload at the pharmacy. He further stated that he "felt more assured by having some appropriate pain drugs in pocket just in case, given that I have no time to consult medical doctor. I did this in good faith merely with a view to effectively function my duty as a pharmacist for the benefit of patients". The respondent's 18 February 2020 evidence 1. In the respondent's 18 February 2020 evidence, the respondent stated that he had destroyed the drugs by piercing each capsule, transferring the powder to a pill container, and putting an alcohol swap on the contents to render them unusable, across two separate containers. He further stated that once he was dismissed, he "didn't feel as stressed", and because of this he went to a Chemist Warehouse and asked a pharmacist to dispose of the vial which he had taken home as a "placebo". The respondent's 27 May 2020 letter 1. In the respondent's 27 May 2020 letter, the respondent stated that he had destroyed the drugs. The Code of Conduct 1. The Code of Conduct relevantly contains the following provisions: 8 Professional behaviour … 8.10 Investigations Practitioners have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague. … Good practice involves: a) cooperating with any legitimate inquiry into the treatment of a patient or client and with any complaints procedure that applies to a practitioner's work … 9 Ensuring practitioner health … 9.2 Practitioner health Good practice involves: … b) seeking expert, independent, objective advice when a practitioner needs healthcare and being aware of the risks of self-diagnosis and self-treatment The Croker report 1. In the Croker report, Ms Croker: 1. explains that a "RUM bin" is a container which is provided as part of the Return Unwanted Medicines Project, a Commonwealth government program to address the safe disposal of medicines. Once medication is returned from a patient, it is placed in the RUM bin for safe disposal, and that it would not be appropriate for a pharmacist to remove those medicines for use (except in relation to Schedule 8 medications, which have different disposal requirements); 2. explains that as at 21 January 2020, pregabalin was a Schedule 4 medication and there were no special requirements for its destruction, except that it be kept in a secure location; 3. as to a pharmacists' obligations with respect to self-administration of Schedule 4 medications, explains that the self-administration of any Schedule 4 medications without appropriate assessment and prescription is not appropriate, and that it should not be provided to any person (including themselves) without a prescription; 4. on the assumption of the correctness of the respondent's account, states that she does not agree with his characterisation of what he took home as "rubbish". Even if the capsules were treated in the manner he described which included piercing the capsule so contents were removed, and then placing alcohol swabs in a vial with them, although they would be rendered unusable they remain Schedule 4 medication, and as such need to be returned to the RUM bin for disposal; 5. on the assumption of the correctness of Ms Wright's account, states that the standard reasonably expected of a practitioner of similar training and experience to that of the respondent would be to ensure no Schedule 4 medications were removed from the pharmacy for self-administration or other supply purposes. The respondent's conduct would fall "significantly below" the standard expected. She notes that this version would "appear to suggest that [the respondent] deliberately chose to remove medications intact and presumably for his own or another person's use without a prescription". The evidence of the respondent 1. We have examined the respondent's bundle of documents and make the following observations: 1. the respondent's 30 September 2022 submissions comprise 243 pages, being a ten pages' response dated 30 September 2022, followed by detailed submissions of 149 pages, 100 pages of which are dedicated to the transcript of the s 150 hearing, and criticism of the delegates of the Council. Various documents are then attached to the submissions (pages 160 to 243). We have ignored these criticisms because we have considered the evidence of the applicant for ourselves in arriving at our decision; 2. the respondent's 21 October 2022 submissions comprise 22 pages which appear to be a repetition of the respondent's 30 September 2022 submissions; 3. the following documents appear to be relied upon as evidence as opposed to submissions: 1. the 18 February 2020 transcript; 2. material published by the United States Drug Enforcement Administration (the DEA Material); 3. extracts of the Policy Directive entitled "Medication Handling in NSW Public Health Facilities" published with the document number PD2013_043 on 27 November 2013 by the Secretary, NSW Health (the Policy Directive). The submissions of the applicant 1. In the applicant's 16 January 2023 submissions, the applicant made the following submissions: 1. the Tribunal would accept the account of Ms Wright, namely, that the respondent placed intact pregabalin tablets into the vial and removed them from the pharmacy, and would accept that (consistently with the respondent's earliest accounts), he did so for the purpose of using the medication himself; 2. the Tribunal would be satisfied that the respondent was willing to tell untruths to the Council in order to present himself in a better light. In particular, the Tribunal would not accept the respondent's account of having destroyed the drugs prior to removing them from the pharmacy. The fact that this account only emerged during the hearing under s 150 of the National Law on 18 February 2020, its absence from his prior written explanations to the Council, and the inherent improbability of the respondent's account (that he destroyed drugs to place beside his bed as a quasi "placebo" effect to make him feel drowsy), are such that the Tribunal would reject on the balance of probabilities this account; 3. in failing to be forthright and honest about the events the subject of complaint one, the respondent has fundamentally failed to cooperate properly with the legitimate investigation of this matter by the Council and the HCCC in breach of cl 8.10 of the Code of Conduct. The submissions of the respondent 1. We are satisfied that the essence of the respondent's submissions to this issue has been set out in the 10 June 2022 Decision at [26]-[27]: "[26] The gist of the submission in respect of Complaint One is to put in issue whether or not the pharmacist took the drugs (which he appears to dispute) and destroyed the drugs at the pharmacy although para 2.2 of the submissions appears to concede: the respondent opted for an alternative route for the final disposal of a very minute quantum of "Destructed Rubbish" equivalent to one capsule …in his pill container, during the interim using it as "Token" for self "Placebo Effect" being influenced by prior reading "Streams in the Dessert" (a practical daily advisory book derived from the Bible" which states that, on 21-1 any year, a "Token of Salvation" for double claim of blessing [27] The submissions refer to instances of asserted "placebo" effects. The submissions infer at 2.25 that the practitioner did not ingest the removed drug." 1. In the respondent's 21 October 2022 submissions the respondent made the following submissions: 1. as to complaint one: 1. particulars 1a), c) and d) are wrong; 2. he cannot recall saying the words in particulars 1b); 3. as to particulars 2 he did supply himself with one capsule, but it was not Lyzalon® because it had been destructed in a legal sense; 1. as to complaint two, he appears to deny that the information he provided to the Council and the Commission during their investigations concerning his conduct was misleading, inconsistent and/or untruthful information; 2. he relies on The Queen v The Herald & Weekly Times Pty Ltd [2021] VSC 253 (HWT) at [299] where J Dixon J found that the motive of each respondent was clear from the words they published, either as direct opinion or as statements of others adopted without criticism, and the notion of "compounding improbabilities" referred to in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [118]-[119]. Consideration 1. Having regard to the principles in Bronze Wing at [1], [37], [126]-[127] and Ghosh at [69]-[70], [137], we accept the evidence of Ms Wright in the Wright statement. Her evidence is corroborated by the CCTV files and the admissions of the respondent in the respondent's 9 February 2020 response and the respondent's 18 February 2020 evidence. It follows that we find that on 21 January 2020 the respondent accessed, removed, and took possession of 11 Lyzalon® 300mg capsules, and thereby supplied himself with pregabalin without a prescription. We also find that the respondent said words to the effect of "Why would I do that when I can get them for free?" 2. The various explanations of his conduct given by the respondent to the Council in the respondent's 2 February 2020 email, the respondent's 9 February 2020 response and the respondent's 18 February 2020 evidence, and to the Commission in the respondent's 27 May 2020 letter were inconsistent. To the extent that the respondent asserted that he destroyed the 11 Lyzalon® 300mg capsules in dose-aid roll and only took possession of one capsule, these explanations were untruthful. 3. We do not accept that the findings in HWT at [299] and Pell at [118]-[119] have any relevance to these proceedings. 4. In HWT, the Director of Public Prosecutions commenced proceedings seeking that various media organisations, editors, journalists and television/radio presenters be adjudged guilty of contempt of court. Those charges arose from the reports published in the media between 12–14 December 2018, following a jury's verdict that Cardinal George Pell was guilty of child sex offences. J Dixon J at [299] found that the motive of all but two respondents was clear from the words they published, either as direct opinion or as statements of others adopted without criticism. Unlike the position in HWT at [299], we are not making any finding as to the motive of the respondent. 5. In Pell, the High Court quashed the convictions of Cardinal George Pell for child sex offences. In relation to charges one to four the High Court held at [118]-[119] that the compounding improbabilities caused by three instances of unchallenged evidence required the jury, acting rationally, to have entertained a doubt as to Cardinal Pell's guilt. Unlike the position in Pell at [118]-[119], in these proceedings there is no relevant uncontradicted evidence giving rise to compounding improbabilities. 6. We do not accept that the DEA Material and the Policy Directive have any relevance to these proceedings. The DEA Material does not have any legal force in Australia. The Policy Directive did not apply to the respondent. 7. We accept the evidence of Ms Croker in the Croker report that by engaging in the conduct constituting complaint one the respondent's conduct fell significantly below the expected standard in providing pregabalin to any person, including himself, without a prescription. This conduct also fell below the standard in cl 9.2b) of the Code of Conduct. We are satisfied that the respondent thereby engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by him in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience within s 139B(1)(a) of the National Law. 8. We are also satisfied that in engaging in the conduct constituting complaint one the respondent engaged in improper or unethical conduct relating to the practice of pharmacy within s 139B(1)(l) of the National Law. 9. In providing inconsistent and untruthful explanations of his conduct given by the respondent to the Council and the Commission the respondent breached the standard in cl 8.10 of the Code of Conduct. We are satisfied that in engaging in the conduct constituting complaint two the respondent engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by him in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience within s 139B(1)(a) of the National Law. 10. We are also satisfied that in engaging in the conduct constituting complaint two the respondent engaged in improper or unethical conduct relating to the practice of pharmacy within s 139B(1)(l) of the National Law. 11. It follows that we find the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and (I) of the National Law. Whether any such proved conduct of the respondent for complaints one and two, individually and cumulatively, constitutes professional misconduct 1. We are satisfied that the conduct constituting complaints one and two engaged in by the respondent is individually, and cumulatively, of a sufficiently serious nature to justify cancellation of his registration for the following reasons: 1. the self-supply of prescribed medication is a matter of significant concern, having regard to the trust that is necessarily reposed in pharmacists as persons permitted to supply prescribed substances, in accordance with legitimate prescriptions; 2. the respondent by his conduct on 21 January 2020 and various explanations of his conduct has demonstrated a disturbing lack of honesty and truthfulness in the practice of his profession. In particular, the respondent's contention that by rendering the 11 Lyzalon® 300mg capsules in dose-aid roll unusable they were no longer a Schedule 4 substance was untenable and lacked common sense. There was no proper justification for his conduct. 1. It follows that we find the respondent is guilty of professional misconduct conduct under s 139E(a) and (b) of the National Law. Whether the respondent engaged in the conduct and demonstrated the characteristics constituting complaint four, and by reason of any such proved conduct and characteristics, individually and cumulatively, the respondent is not competent to practice as a pharmacist and is not otherwise a suitable person to hold registration as a pharmacist Introduction 1. Consideration of this issue involves the findings at [78] and [79] above in relation to complaints one and two and determining whether the respondent: 1. failed, without reasonable excuse, to comply with a direction by the Council under s 145E of the National Law to undergo an examination by Dr Samuels, scheduled for 18 August 2020; 2. by his conduct constituting complaints one and two has demonstrated a lack of mental capacity, deficiencies in reasoning and diminished insight in relation to his professional obligations; 3. is vulnerable to significant influence by Mr Wong in relation to his insight into his professional obligations and responses. 1. To establish the respondent failed, without reasonable excuse, to comply with a direction by the Council under s 145E of the National Law to undergo an examination by Dr Samuels, scheduled for 18 August 2020 the applicant relies on the following evidence: 1. the letter dated 7 August 2020 of the Council to the respondent (the 7 August 2020 letter); 2. the letter dated 10 August 2020 of the respondent to the Council (the 10 August 2020 letter); 3. the Samuels report. 1. To establish the respondent by his conduct constituting complaints one and two has demonstrated a lack of mental capacity, deficiencies in reasoning and diminished insight in relation to his professional obligations the applicant relies on the same evidence as for complaints one and two as well as the Samuels report. 2. To establish the respondent is vulnerable to significant influence by Mr Wong in relation to his insight into his professional obligations and responses the applicant relies on the following evidence: 1. the transcript of the interview on 23 January 2020 between a representative of Bowens Pharmacy and the respondent which was attended by Mr Wong (the 23 January 2020 transcript); 2. the letter dated 23 January 2020 of Mr Wong to Bowens Pharmacy (the 23 January 2020 letter); 3. the email of Mr Wong to representatives of Bowens Pharmacy sent on letter dated 24 January 2020 (the 24 January 2020 email); 4. the 18 February 2020 transcript; 5. the Samuels report. 1. Before considering this issue, we have summarised the evidence and submissions of the parties. The evidence of the applicant The failure of the respondent, without reasonable excuse, to comply with a direction by the Council for a health assessment The 7 August 2020 letter 1. The Council by the 7 August 2020 letter referred the respondent to a health assessment by Dr Samuels on 18 August 2020 pursuant to s 145E of the National Law. The 10 August 2020 letter 1. The respondent in the 10 August 2020 letter asserted that it was not reasonable to require him to undergo an examination because the person who made the complaint against him has a "mental health problem", that the grounds of the complaint were not "valid and evidence-based", and that there were "no happenings that cast doubts on [his] ability to practice". In late January 2020 at the time of the incident, his "health condition seems to be not so good", and that by his workload he had been "pushed" to the "limit". He sought medical help on 25 January 2020 and 28 January 2020 and that on 28 January 2020 the "medical doctor said that my health problem has had much improvement and there should be no problem", indicating that his health condition in late January 2020 was "only temporary". Because the HCCC is empowered by s 21A of the Health Care Complaints Act 1993 (NSW) (HCC Act) to "check my medical record", the HCCC "has already investigated by medical history with no adversary [sic] results". Further, because psychiatric assessment is not required for the recruitment of various medical practitioners, it should not be imposed on him. Finally, the requirement to undergo an assessment is contrary to his fundamental common law rights and thus "illegal". The Samuels report 1. In the Samuels report, Dr Samuels concluded that the presentation of materials to the Council and HCCC by the respondent, including his attempt to apply mathematical logic to the issues, the attaching of bizarre appendices and the illogical and inconsistent statements tend to suggest "the presence of possible thought disorder and emerging mental illness" as well as raising the "possibility of a paranoid disorder". The lack of mental capacity, deficiencies in reasoning and diminished insight in relation to his professional obligations of the respondent 1. The applicant relies on the same part of the Samuels report as in [98] above. The vulnerability of the respondent to significant influence by Mr Wong The 23 January 2020 transcript 1. At the interview on 23 January 2020 the respondent was summarily dismissed from his employment with Bowens Pharmacy by letter dated 23 January 2020 which alleged serious misconduct on his part in relation to his access, removal and taking possession of pregabalin capsules (the 23 January 2020 Bowens letter). During this interview of 40 minutes Mr Wong substantially answered questions on behalf of the respondent and said he was entitled to speak on his behalf. The 23 January 2020 letter 1. In the 23 January 2020 letter Mr Wong responded to the 23 January 2020 Bowens letter on behalf of the respondent. The 24 January 2020 email 1. In the 24 January 2020 email Mr Wong requested the withdrawal of the 23 January 2020 Bowens letter in return for the resignation of the respondent with immediate effect. The 18 February 2020 transcript 1. The 18 February 2020 transcript discloses that Mr Wong, who was the respondent's support person, repeatedly answered questions on his behalf. He was warned about this conduct by the delegates of the Council on three occasions, and at one point said, "I have made suggestions for his answers". The Samuels report 1. In the Samuels report, Dr Samuels concluded: "It is quite clear from the materials provided and his quasi-legal responses to the questions asked that he has been significantly influenced by his father who has attempted to advocate and communicate for him. He does seem to be echoing his father's interpretation of the Law." The evidence of the respondent 1. We have not discerned any evidence as opposed to submissions in the respondent's bundle of documents. The submissions of the applicant 1. The applicant's 16 January 2023 submissions include the following submissions: 1. as to the failure of the respondent, without reasonable excuse, to comply with a direction by the Council for a health assessment: 1. the direction in the 7 August 2020 letter referring the respondent to a health assessment by Dr Samuels on 18 August 2020 pursuant to s 145E of the National Law was reasonable, given the nature of the complaint against the practitioner; 2. the respondent's submissions to the contrary do not withstand close scrutiny for the following reasons: 1. whether or not the complainant has a "mental health problem" as alleged is irrelevant to the question of reasonableness; 2. the question of whether the complaint is "valid" and "evidence-based" is one that the HCCC submits the Tribunal will find in its favour; 3. the fact that the respondent concedes that there was some health condition influencing his behaviour at the time of the incident the subject of complaint one tends to support the conclusion that the direction was reasonable, not the contrary; 4. the HCCC has not exercised power pursuant to s 21A of the HCC Act to obtain the respondent's medical records; 5. whether or not psychiatric assessment is required for employment as a pharmacist is irrelevant to whether it was reasonable in the context of s 145E of the National Law; 6. the very existence of s 145E of the National Law is an answer to the Respondent's complaint of illegality by interference with his "common law rights" which are subject to legislative interference; 1. none of the arguments in the 10 August 2020 letter should be accepted, and none of them provide a reasonable excuse for the purposes of s 145F of the National Law; 1. as to the lack of mental capacity, deficiencies in reasoning and diminished insight in relation to the professional obligations of the respondent: 1. the conduct the subject of complaint one demonstrates, ipso facto, diminished insight into his professional obligations; 2. the conduct the subject of complaint two as well as the Samuels report demonstrates the respondent's lack of mental capacity, deficiencies in reasoning, and diminished insight into his obligations to regulatory authorities; 3. the Tribunal would be concerned by the following matters: 1. the respondent's repeated insistence that because he (purportedly) made the pregabalin unusable, he was no longer dealing with a Schedule 4 drug and that the complaint should have been dismissed on that basis. The reasoning is contrary to the expert evidence of Ms Croker which establishes that it remained a Schedule 4 drug; 2. the respondent's willingness to engage in misleading the Council, and his attempts to lay the blame for his conduct at the feet of the complainant based on irrelevant allegations of a mental illness on her part; 3. the respondent's conduct towards regulators, including his repeated allegations of unlawfulness or impropriety on their part, without any reasonable basis; 1. as to the vulnerability of the respondent to significant influence by Mr Wong, the 23 January 2020 transcript, the 23 January 2020 letter, the 24 January 2020 email, the 18 February 2020 transcript and the Samuels report amply demonstrates Mr Wong's level of influence and interference in these proceedings. The submissions of the respondent 1. The respondent's 21 October 2022 submissions include the following submissions: 1. as to the failure of the respondent, without reasonable excuse, to comply with a direction by the Council for a health assessment, the matters relied upon by the applicant do not meet the threshold of reasonableness within s 145E of the National Law; 2. as to the lack of mental capacity, deficiencies in reasoning and diminished insight in relation to the professional obligations of the respondent, his conduct involved risk reduction by destroying a Schedule 4 drug rather than a lack of mental capacity; 3. as to the vulnerability of the respondent to significant influence by Mr Wong, the interjections were necessary to attempt to prevent wrong fact finding. Consideration 1. We are satisfied that it was reasonable for the Council by notice in the 7 August 2020 letter to direct the respondent to undergo an examination by Dr Samuels, scheduled for 18 August 2020 for the following reasons: 1. the conduct constituting complaints one and two raised concerns about the mental capacity, reasoning, and insight of the respondent. These concerns were subsequently confirmed by Dr Samuels in the Samuels report; 2. the paramount consideration to be given by the Council to the protection of the health and safety of the public in the exercise of functions under the National Law required by s 3A. 1. We are satisfied that the respondent did not have any reasonable excuse for his failure to attend the examination by Dr Samuels on 18 August 2020. None of the reasons in the 10 August 2020 letter justified his failure to attend the examination for the reasons submitted by the applicant in [106(1)] above. Pursuant to s 145F(a) of the National Law this failure is evidence that the respondent does not have sufficient physical or mental capacity to practise pharmacy. 2. We are satisfied that the respondent, by his conduct constituting complaints one and two has demonstrated a lack of mental capacity, deficiencies in reasoning and diminished insight in relation to his professional obligations for the reasons submitted by the applicant in [106(2)] above. 3. We are satisfied that the respondent is vulnerable to significant influence by Mr Wong in relation to his insight into his professional obligations and responses for the reasons submitted by the applicant in [106(3)] above. The interference by Mr Wong at the hearing under s 150 of the National Law on 18 February 2020 demonstrates that the respondent has diminished control over his autonomy to the extent that his capacity to fulfil his professional obligations is compromised. 4. By reason of our findings in [108] to [111] above, we are satisfied that the respondent Is not competent to practice as a pharmacist within the meaning of s 139(a) of the National Law. 5. By reason of our findings in [78] and [79] above in relation to complaints one and two and [108] to [111] above, we are satisfied that the respondent Is otherwise not a suitable person to hold registration in the profession of pharmacy within the meaning of s 144(e) of the National Law. Whether any protective orders should be made against the respondent Introduction 1. The applicant in its letters dated 19 December 2022 and 12 January 2023 to the respondent advised that it is seeking orders that his registration as a pharmacist is cancelled and that there be a non-review period of two years. 2. Before considering this issue, we have summarised the submissions of the applicant. The respondent made no submissions on this issue. The submissions of the applicant 1. In the applicant's 16 January 2023 submissions, the applicant made the following submissions: 1. the respondent has caused harm to the reputation of the profession of pharmacy and betrayed the public confidence which is necessarily reposed in pharmacists who have privileges associated with the supply of prescription-only drugs; 2. the respondent's conduct throughout the Council proceedings, the investigation, and these Tribunal proceedings, only exemplifies the risk that he poses to the public; 3. the respondent's conduct in the present case is clearly serious and capable of attracting the proposed protective orders. His repeated denials of any wrongdoing, obfuscation in respect of the events the subject of complaint one, and repetition of unsubstantiated allegations against the regulatory authorities, evidence his lack of insight into his conduct. Cancellation, along with a non-review period of two years, is appropriate to achieve the protective and deterrent purpose of the orders. Consideration 1. We are satisfied that in light of our findings it is appropriate to cancel the registration of the respondent as a pharmacist pursuant to ss 149(a) and 149C(1)(a), (b), and (d) of the National Law and that there be a non-review period of two years pursuant to ss 149(a) and 149C(7) of the National Law. The conduct of the respondent constituting complaints one and two was serious, and his response to the Council and the Tribunal has demonstrated his lack of competence to practice as a pharmacist and his lack of suitability to hold registration as a pharmacist. Whether the respondent pay the applicant's costs of the proceedings Introduction 1. In the applicant's 16 January 2023 submissions, the applicant submitted that it would be appropriate for the respondent to be ordered to pay its costs of the proceedings. The respondent made no submissions on this issue. Consideration 1. Having regard to the principles in Philipiah at [42]-[46], we are satisfied that it is appropriate to make an order pursuant to cl13(1) of Sch 5D of the National Law that the respondent pay the applicant's costs of the proceedings, including the costs reserved in the 10 June 2022 Decision. Orders 1. We make the following orders: 1. the respondent's registration is cancelled; 2. the respondent may not apply for review of order (1) above for two years from the date of this decision; 3. the respondent is to pay the costs of the applicant of the proceedings as agreed or assessed. ********** 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: 03 February 2023