Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mai [2023] NSWCATOD 120 Hearing dates: 15 June 2023 Date of orders: 9 August 2023 Decision date: 09 August 2023 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member A Lee, Senior Member F Zirein, Senior Member B Seth, General Member Decision: 1. Complaint One, namely that the practitioner has been convicted of a criminal offence in NSW, is established. 2. Complaint Two, namely that the respondent is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), in that he contravened s 130(1) of the National Law, is established. 3. Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) the registration of the respondent as a pharmacist is cancelled. 4. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), the respondent may not make an application to review order (3) for a period of one year from the date of these orders. 5. The respondent is to pay the applicant's costs as agreed or as assessed. 6. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure to any person or entity of the names of the persons identified as persons A and B in the proceedings. Catchwords: OCCUPATIONS – pharmacists – misconduct and discipline – unsatisfactory professional conduct – appropriate protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36(3) Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) Health Practitioner Regulation National Law (NSW), ss 130(1), 139B(1), 144(a), 149C(1) and 149C(7) Poisons and Therapeutic Goods Act 1966 (NSW), s 10(3) Cases Cited: Browne v Dunn (1893) 6 R 67 (HL) Health Care Complaints Commission v Azzam [2021] NSWCATOD 106 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 Health Care Complaints Commission v Ly [2010] NSWMT 20 Lee v Health Care Complaints [2012] NSWCA 80 New South Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Cheng-Yun (Jason) Mai (Respondent) Representation: Counsel: K G Bennett (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Lincoln Legal (Respondent) File Number(s): 2023/00015296 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure to any person or entity of the names of the persons identified as persons A and B in the proceedings. REASONS FOR DECISION Introduction 1. These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (Commission) against Mr Cheng-Yun (Jason) Mai (practitioner). 2. The matter was conducted as a combined Stage 1 and 2 proceeding on 15 June 2023. 3. The practitioner is a registered pharmacist whose registration was suspended from 1 July 2021. 4. The Commission seeks protective orders under s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) (National Law) on the basis that the practitioner: 1. was convicted of four criminal offences, namely, two offences of suppling a prohibited drug (less than or equal to the small quantity) under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and two offences of selling a restricted substance otherwise than by wholesale under s 10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW); and 2. is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law, in that he contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being charged with a criminal offence. Evidence The Commission's evidence 1. The Commission's two volumes of materials included but were not limited to complaints, correspondence between the parties and with regulators, the transcript of a s 150 hearing and subsequent decision, witness statements, and various documents relating to the Local Court criminal proceedings against the practitioner. The practitioner's evidence 1. The primary evidence of the practitioner was his affidavit sworn 12 May 2023 and filed on 24 May 2023. 2. However, at the hearing, the practitioner, who had been required for cross-examination, decided not to rely on his affidavit, with the result that he was not cross-examined and any information in his affidavit was not before the Tribunal. 3. The practitioner did rely on the affidavits of Terrance Tay and Dr Alison Liu both sworn 12 May 2023. These affidavits contained and attached character references. 4. The Commission required Dr Liu for cross-examination. Where relevant we will refer to Dr Liu's oral evidence below. The practitioner's position 1. Prior to the hearing, the practitioner had filed a Reply to Disciplinary Findings (Reply). In that document the practitioner: 1. admitted the conduct, the subject of the Particulars of Complaints One and Two; 2. admitted Complaint One and, as best can be understood, Complaint Two; 3. submitted that a three a 3-month suspension was the appropriate protective order. 1. At the hearing, the practitioner's counsel clarified that that practitioner admitted both Complaints. Mr Bennett also indicated that the practitioner "no longer disputes the orders sought" by the Commission. That is to say, he did not oppose protective orders cancelling his registration and preventing him from reapplying for registration for a period of 12 months. Agreed Facts 1. Prior to the hearing the parties had agreed on the following facts. Background 1. On 5 December 2009, the practitioner obtained a Bachelor of Pharmacy in New Zealand. 2. On 14 June 2011, the practitioner was first registered as a pharmacist in New Zealand. 3. On 27 July 2011, the practitioner was first registered as a pharmacist in Australia. 4. From 2011 until approximately June 2013, the practitioner worked as a registered pharmacist in New Zealand. 5. In 2013, the practitioner moved to Australia. 6. From June 2013 until 2015, the practitioner worked as a pharmacy manager at Mediadvice Pharmacy in Harden/Gundagai in NSW. 7. In August 2015, the practitioner started working as a pharmacist in charge at a pharmacy in Revesby. Supplying Prohibited and Restricted Substances 1. At the time of his offending, the practitioner was employed as a pharmacist at two pharmacies owned by the same proprietor at Revesby. During this period, the practitioner worked with a female pharmacy assistant (Person A) and also knew Person A's male de-facto partner (Person B). 2. In December of 2020 Investigators commenced enquiries into the supply of prohibited drugs by Person B. On the 4th of March 2021, telephone intercept warrant C21448 was granted for Vodafone telecommunications service [XXXX XXX XXX] which is owned and operated by Person B. Between the 4th of March 2021 and the 1st of June 2021, police lawfully intercepted several phone calls and texts messages. During these interceptions Investigators identified that Person B and his de-facto partner Person A (who worked for two pharmacies in Revesby both owned by the same proprietor) were involved with the sale and distribution of prohibited prescription medications. 3. It became evident from the telephone intercepts that Person A and 'Jason' were obtaining prescription medication such as Endone, Oxycontin, steroids and amphetamine based prescription weight loss medication for Person B. 4. On the 1st of June 2021 Investigators conducted a search warrant at the home residence of Person A and Person B. During that search warrant Investigators located and seized 1 box containing 2 250milligram vials of Primoteston steroids with no prescription labels attached. 5. Investigators located and seized 2 boxes containing 60 tablets of Phentermine, 1 box containing 47 10 Mg tablets of 'Targin' brand oxycodone tablets and 4 boxes of Duromine containing 120 tablets. 6. Investigators also seized 4 hand written pieces of paper on stationary from the pharmacy that both Person A and the practitioner worked at. On the paper was written "Diazepam, Endone, oxy Duromine" with dosages and prices per tablet written next to them. 7. On Friday 4 June 2021, investigators gained access to the mobile phone seized from Person B. Investigators manually examined the phone and opened the encrypted application named "Signal". Located within the application Investigators opened up the chat log named "Jason Person A" with the attached phone number [XXXX XXX XXX] which captured text messages from 26/03/2021-22/05/2021. 8. Conversations [took place] between the practitioner and Person B discussing amounts of prescription drugs wanted by Person B which was supplied on one occasion by the practitioner. Located within the chat log was a picture message of a drug ledger with hand written pieces of paper on stationary from the pharmacy that both Person A and the practitioner worked at. On the paper was written "Diazepam, Endone, oxy Duromine and Targin" with dosages and prices per tablet written next to them, which was identical to the one seized from Person B's premises. 9. Further specific conversation between the practitioner and Person B naming 2 vials of Primoteton, Targin (oxycodone) and Duromine to be supplied by the practitioner was captured. The names and amounts of theses prescription drugs matched the amounts and names of the drugs seized from Person B's premises. 10. Oxycontin (active ingredient: Oxycodone) and Targin (active ingredients: oxycodone + naloxone) are opioid tablets indicated for severe pain and Schedule 8 drugs. Charges and Conviction 1. Between 26 March 2021 and 22 May 2021 at Revesby, the practitioner: 1. supplied a prohibited drug, namely one box containing 47 tablets of 10mg Targin (oxycodone+ naloxone) with no prescription labels attached; 2. supplied a prohibited drug, namely one box containing two vials of 250mg of liquid Primoteston (testosterone); 3. supplied a restricted substance otherwise than by wholesale, namely two boxes containing 60 tablets of Duromine (Phentermine); 4. supplied a restricted substance otherwise than by wholesale, namely four boxes containing 120 tablets of Duromine (Phentermine); 1. On 10 June 2021, the practitioner was working as a pharmacist in Revesby and was arrested by police then conveyed to the police station. 2. On 10 June 2021, the practitioner was charged with one count of supplying prohibited drugs under s 25(1) of the Drug Misuse and Trafficking Act 1985 between 26 March 2021 and 22 May 2021 (namely supplying two vials of 250mg of liquid Primoteston, 60 tablets of Phentermine, 47 tablets of 10mg Targin tablets and four boxes containing 120 tablets of Duromine). That offence carries a maximum penalty of 15 years imprisonment and/or a maximum fine of $220,000 in the District Court and a maximum penalty of 2 years imprisonment and/or a maximum fine of $11,000 in the Local Court. This charge was subsequently amended in accordance with paragraph 18. 3. The practitioner failed to notify the Australian Health Practitioner Regulation Agency (AHPRA) by 17 June 2021 (that is, within 7 days of being charged) that he had been charged with an offence punishable by 12 months imprisonment or more. 4. On 21 June 2021, police made a complaint to the Commission about the practitioner. 5. On 23 June 2021, the practitioner received a letter from the Pharmacy Council of NSW (the Council) requesting information. 6. On 24 June 2021, the practitioner provided information to the Council. 7. On 29 June 2021, the practitioner provided submissions to the Council. 8. On 30 June 2021, the Council held a s 150 hearing which the practitioner did not attend. The Council suspended his registration, effective 1 July 2021. 9. On 1 July 2021, the practitioner received a letter from the Council advising him of the suspension. 10. On 30 July 2021, the practitioner received a letter from the Commission informing him that the complaint had been referred to the Commission. 11. On 26 August 2021, the practitioner received a letter from the Commission informing him that the complaint would be investigated. 12. On 13 or 26 April 2022, the practitioner pleaded guilty to four charges. 13. On 8 June 2022, the practitioner was convicted at Sydney Downing Centre Local Court of the following four offences: 1. supply prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), namely 47 tablets of 10mg Targin brand Oxycodone (equal to or less than the small quantity) between 26 March 2021 and 22 May 2021 (sequence 1); 2. supply prohibited drug under section 25(1) of the Drug Misuse and Trafficking Act 1985, namely two vials of 250mg of liquid Primoteston testosterone (NSW) less than or equal to the small quantity) between 26 March 2021 and 22 May 2021 (sequence 2); 3. supply restricted substance otherwise than by wholesale under section 10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW), namely 60 tablets of Phentermine between 26 March 2021 and 22 May 2021 (sequence 3); 4. supply restricted substance otherwise than by wholesale under section 10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW), namely four boxes containing 120 tablets of Duromine between 26 March 2021 and 22 May 2021 (sequence 4). 1. The practitioner was fined a total of $2,100 and sentenced to an 18-month Community Correction Order, expiring on 7 December 2023. 2. On 14 June 2022, the practitioner emailed the Council about his charges and convictions. 3. On 17 June 2022, the practitioner emailed the Commission stating that he does not intend to practice as a pharmacist in the near future and that he would be surrendering his registration. 4. On 12 August 2022, the practitioner's solicitor emailed the Commission his submissions in response to the allegations against him. 5. On 27 September 2022 (about 15 months after he was charged), the practitioner notified AHPRA of his charges and convictions. Complaint One 1. Complaint One is that pursuant to s 144(a) of the National Law, the practitioner has been convicted of a criminal offence in New South Wales. Background 1. The background to Complaints One and Two is that: On 8 June 2022, at the Downing Centre Local Court, the practitioner was convicted of two offences of supply of a prohibited drug (less than or equal to the small quantity) under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and two offences of selling a restricted substance otherwise than by wholesale under s 10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW). The practitioner was convicted and fined a total of $2,100.00 and sentenced to a Community Corrections Order for a period of 18 months, expiring 7 December 2023. Particulars of Complaint One 1. The Particulars of Complaint One are: 1. supply prohibited drug under section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), namely 47 tablets of 10mg Targin brand Oxycodone (equal to or less than the small quantity) between 26 March 2021 and 22 May 2021 (sequence 1/5)); 2. supply prohibited drug under section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), namely two vials of 250mg of liquid Primoteston testosterone (less than or equal to the small quantity) between 26 March 2021 and 22 May 2021 (sequence 2)); 3. supply restricted substance otherwise than by wholesale under section 10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW), namely 60 tablets of Phentermine between 26 March 2021 and 22 May 2021 (sequence 3); 4. supply restricted substance otherwise than by wholesale under section 10(3) of the Poisons and Therapeutic Goods Act 1966 (NSW), namely four boxes containing 120 tablets of Duromine between 26 March 2021 and 22 May 2021 (sequence 4). Are the Particulars of Complaint One proved? 1. The practitioner has admitted the conduct the subject of Particulars (1), (2), (3) and (4). Independently of that admission we find the conduct established given the relevant agreed facts and the practitioner's Reply to Disciplinary Findings (Reply) where the practitioner admits Complaint One. Is Complaint One established? 1. The practitioner has admitted Complaint One. Independently of that admission we find Complaint One established. Complaint Two 1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being charged with a criminal offence. Particular of Complaint Two 1. The particular of Complaint Two is that the practitioner failed to notify the National Board within 7 days when charged on 10 June 2021 with an offence of supply prohibited drug (more than the indictable quantity but equal to or less than the commercial quantity) under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) namely supplying two 250mg vials of Primoteston steroids, 60 tablets of Phentermine, 47 tablets of 10mg Targin brand oxycodone tablets and four boxes of Duromine containing 120 tablets, which is an offence punishable by 12 months imprisonment or more. Is the Particular of Complaint Two proved? 1. The practitioner has admitted the conduct the subject of the Particular. Independently of that admission we find the conduct established given the relevant agreed facts, the practitioner's Reply and his admissions. Is Complaint Two established? 1. Sections 130 and 139B(1)(b) of the National Law are relevant to Complaint Two. 2. Section 130 of the National Law provides: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. … (3) In this section— relevant event, in relation to a registered health practitioner, means— (a) the practitioner is charged with --- (i) a scheduled medicine offence; or (ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or (b) the practitioner is convicted of or is the subject of a finding of guilt for --- (i) a scheduled medicine offence; or (ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere…. 1. Section 139B(1)(b) and 144(a) of the National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner … (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. 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner – (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. 1. The practitioner has admitted Complaint Two. We consider this to be an appropriate and realistic concession, given the relevant agreed facts, the practitioner's Reply and his admissions. 2. Independently of those matters, we find Complaint Two established. Protective Orders (Stage 2) 1. The Commission submits that it is appropriate for the practitioner's registration to be cancelled for one year. 2. This order is not opposed by the practitioner. The practitioner's evidence 1. The practitioner chose only to file the affidavits of Mr Terrance Tay and Dr Alison Liu. Evidence of Mr Tay 1. Mr Tay is an elder at the Local Church in Sydney Ltd (Local Church), a church the practitioner attends with his family. 2. Mr Tay had provided a character reference to the Presiding Magistrate at the time of the hearing of the practitioner's offences. A copy of that reference was attached to Mr Tay's affidavit. 3. Mr Tay says: 7 Owing to my travel schedule and other commitment, I would see them on average twice a month at the Randwick congregation of the church. in recent times, I have witnessed the financial stress upon their shoulders with the mortgage interest rate increase, and preparing for the hearing of this Tribunal. 8 Since last year, Kiyomi [the practitioner's wife] has taken up two part time jobs in order to contribute to the legal costs and rising loan repayments for their residence. This has also caused more tension at home to which I am personally giving them some pastoral care. 9 I have prayed much for them and deeply feel for them. I realise this stress has the potential of eating away their harmonious and loving marriage relationship with each other. Despite the hours that they both have to work to make ends meet, they are still doing their best to not let it affect their commitment to each other, to their family and to God through their church. 1. Mr Tay says that he knows how much it means to the practitioner to keep his registration as a pharmacist. Mr Tay says he has seen the stress, on both the practitioner and his wife, in preparing for the proceedings before the Tribunal. From his conversations and discussion with the practitioner, Mr Tay "strongly believes[s]" that the practitioner has "seriously and deeply learned his lesson" and is genuinely remorseful for his offending the trust given to him. 2. Mr Tay "deeply believe[s]" that the stress and difficulties the practitioner has gone and is going through and the way in which his character has handled this adversity will ensure that there will be no repeat of his previously flawed conduct. 3. Mr Tay believes that, given a chance the practitioner will not let himself, his family, his friends at church, Mr Tay himself, or society down. 4. Given that Mr Tay was not cross-examined, we accept that Mr Tay genuinely holds those beliefs of the practitioner's remorse and insight. However, given that the practitioner could not be cross-examined, we have no way of testing whether or not Mr Tay's beliefs are in fact justified. Dr Liu 1. Dr Liu is a general practitioner. She is also a member of the Local Church. 2. She also gave a character reference for the practitioner to the Presiding Magistrate at the time of the hearing of the practitioner's offences. A copy of that reference was attached to Dr Liu's affidavit. 3. Since writing her reference in May 2022, she has been in "constant contact:" with the practitioner. 4. In her affidavit, Dr Liu described the practitioner's "current job situation", (he is currently working in recruitment), the effect on the practitioner and his family having his registration suspended, particularly the impact on his wife. Dr Liu says that the practitioner's "mental maturity" has developed since the time of the offences, the practitioner now saying that his conduct was "so irrational and not him". 5. In the conclusion to her affidavit, Dr Liu states: Jason has shown remorse, the pain of the experience on him and his family has touched his core and conscience. He is well aware that by his conduct he has let his family, friends and himself down. Although he continues to live with and suffer the consequences of his actions his approach to living has changed to the benefit of his family and himself. Based on our conversations and my observation, I do not believe he is capable of reoffending. Obtaining his pharmacist licence would be equivalent to giving him a second life which he will not treat this lightly. The positive impact on his wife, his son and his wider family will be immense. In addition to this, I truly believe his talent and calling is in his chosen profession - being a pharmacist. Pharmacy is where his passion is, and that is where exactly he could contribute the most society. His community and sick patients will greatly benefit by his compassion and professional skills. The Commission's submissions 1. The Commission filed extensive and persuasive submissions on the appropriate protective order. After extensively setting out the evidence regarding the circumstances of the offences, in summary, the Commission made the following submissions addressing the issues set out below. 2. First, the nature and gravity of the offences. The Commission submitted that the offences are serious because they are (potentially) punishable by imprisonment. While the quantities were classified as "small", the sentencing Magistrate noted that: the supply of prohibited drugs by a qualified pharmacist as Mr Mai was represents a serious breach of trust placed in pharmacists by the community. Of course, pharmacists have access to a range of drugs, many of which can be dangerous and illegal if they fall into the wrong hands. It is only through the professionalism and integrity of pharmacists that that does not occur. Here, there has been a serious breach of that trust and it flows from that that the protection of the community and general deterrence must be a significant factor when crafting an appropriate sentence because as I said, these are serious offences." 1. Secondly, the potential relevance of the offences to health practice. Here the Commission submits that the practitioner's conduct had the potential to diminish public confidence in the profession. 2. Thirdly, the conviction and sentence imposed. The sentencing Magistrate convicted the practitioner of the four offences, fined him a total of $2,100 and sentenced to an 18-month Community Correction Order, expiring on 7 December 2023. 3. Fourthly, the age of the practitioner. The Commission submits that at the time he committed the offences, the practitioner was a 33 year old adult at the time of his offending, with ten years' experience as a pharmacist, who must have been well aware of his obligation to comply with the criminal law. 4. Fifthly, the practitioner's behaviour after committing the offences. The Commission submits that after committing the offences, the practitioner continued to work as a pharmacist until he was arrested, wiped his phone after he was arrested, failed to promptly report his charges to AHPRA and declined to attend the s 150 hearing. 5. Sixthly, the practitioner's explanations for offending. The Commission submits that although the practitioner claimed that he was under financial stress, the sentencing Magistrate noted that he would have been earning a reasonable wage working at a pharmacy. 6. As to the relevant disqualification period, The Commission submits that a 12 month disqualification period is appropriate because: 1. the practitioner had ample qualifications and training, having completed a Bachelor of Pharmacy in 2009, first being registered in 2011 and having worked in several pharmacies. Therefore, he must have known that it was wrong to supply Sch 8 and Sch 4D medication without prescriptions; 2. when the practitioner was first asked to supply drugs, it was open to him to simply refuse to participate in illegal activity. If the practitioner was unsure what to do, he could have sought guidance from his employer, his pharmacist colleagues, the Council, AHPRA or reported any concerns to police. At any time during March-May 2021, it was open to the practitioner to cease contact with Person B. 3. the practitioner displayed exceedingly poor professional judgment in supplying dangerous drugs to Person B to be sold to the public (which jeopardised the safety of the public) for his own financial gain; 4. the practitioner must have known that his offending would be detected by police (because he had his lawyer's phone number in his shoe on the day he was arrested); 5. the practitioner claims that before he was arrested, he had reflected on his conduct, was "appalled" by his conduct so wrote a resignation letter on 9 May 2021 to seek employment outside pharmacy as a "self-imposed punishment (which is inconsistent with the practitioner's actions in continuing to engage in further messages on 18 May 2021 about drugs, writing a note listing drugs and money on 18 May 2021 and continuing to engage in further messages with Person B on 22 May 2021 about drugs); 6. the practitioner has offered various explanations for his conduct (including having a newborn, being busy at work, financial pressures and concerns regarding COVID) none of which adequately explain why he took the extraordinarily risky step of supplying dangerous drugs to be sold to unknown members of the public without prescription; 7. while the practitioner has made admissions and apologised for his conduct, he apparently suggested to Dr Liu that he provided the drugs because a female pharmacy assistant (presumably Person A) requested him to; 8. there is insufficient evidence for the Tribunal to be satisfied that the practitioner's character is reformed, the practitioner electing not to file any evidence regarding any education or treatment and the Tribunal would give limited weight to Dr Liu's evidence because she was unaware of the detail of the offences and unaware that the offending was for financial gain. The practitioner's submissions 1. As noted, the practitioner did not dispute the Tribunal making the protective order sought by the Commission. Nevertheless, through his counsel he asked us to consider the following matters: 1. at no time has the practitioner, either before the Tribunal or the Local Court, sought to deny his culpability, the nature of which he understands, which is demonstrated by his early pleas and apology to the Local Court; 2. the quantity of drugs involved in the offending was small; 3. It is clear that the practitioner understood the serious nature of his offence 4. it was Person B who approached the practitioner, who should never have allowed himself to be placed in this position of being involved with persons who were the subject of police investigation; 5. it is undeniable that the practitioner resigned on 9 May 2021, thus removing himself from the industry: "he was prepared to take a financial hit"; 6. there is no evidence about wiping the practitioner phone after arrest; 7. the practitioner had made a "grave error of judgment"; 8. the practitioner had good prospects of rehabilitation. 9. Dr Liu's uncontested evidence of the practitioner's character. Post-hearing submissions 1. We gave the parties leave to file written submissions after the completion of their oral submissions at the hearing in response to the Commission's oral submissions made at the hearing. 2. Those submissions deal with three issues: Dr Liu's evidence and reference, the practitioner's failure to give evidence and costs. Dr Liu's evidence and reference 1. The Commission did not accept the practitioner's description of Dr Lui's references as "uncontested" and submits that the Tribunal would give limited weight to Dr Liu's letter and affidavit because she was unaware of the detail of the offences and unaware that the offending was for financial gain. 2. In response, the practitioner says that it is not open to the Commission to make that submission as it was never put to Dr Liu (contrary to the principle in Browne v Dunn (1893) 6 R 67 (HL)) that her letter and affidavit would have been different had she known that the offending was for financial gain. 3. The cross-examination of Dr Liu established that Dr Liu was relatively uninformed about the events underlying the offences with which the practitioner had been charged was not aware that he had sold prescription drugs for financial gain and had not seen a copy of the Complaint. 4. On this issue, our view is that we can give Dr Liu's evidence some weight, in particular her opinion about the practitioner's remorse. That said, as with Mr Tay, given that the practitioner could not be cross-examined, we have no way of testing whether or not Dr Liu's beliefs are in fact justified. The practitioner's failure to give evidence 1. The Commission submits that (footnotes omitted): 2. … The Commission maintains that the Tribunal may (but is not obliged to) draw adverse inferences from the practitioner's failure to give oral evidence. The Commission invited the practitioner to give evidence before the hearing, the Tribunal indicated at the outset of the hearing that it may draw adverse inferences, the practitioner's counsel indicated that this had been explained to the practitioner (who was present during the hearing) and that the practitioner did not wish to give evidence. 3. It is a matter for the Tribunal whether it is necessary, given the evidence and the admissions, to draw any adverse inferences against the practitioner arising from his failure to give evidence at the hearing. The Commission maintains its submission, based on the evidence and admissions, that the Tribunal is entitled to find that the practitioner (who calls himself Jason), sent the messages from his mobile number (his number is listed in the police agreed facts and the Tribunal agreed facts) and wrote the handwritten notes on pharmacy stationary (which bore his fingerprints and one was photographed in the messages). The fact that the practitioner and Person B exchanged messages via Signal is an agreed fact before the Tribunal. The practitioner has never denied sending the messages. The practitioner has never provided any evidence or submissions denying writing the notes. The Commission also maintains its submission, that in circumstances where the practitioner elected not to file a statement or give any oral evidence, the Tribunal cannot have confidence that the practitioner has demonstrated genuine insight, reflection and rehabilitation so the Tribunal cannot be satisfied that a suspension would adequately protect the public. 1. In response, the practitioner submits that "it is not clear" what is being submitted by the Commission, stating: 9. The [Commission] submits that as the [practitioner] elected not to file a statement or give any oral evidence the Tribunal cannot have confidence that the practitioner has demonstrated genuine insight, reflection and rehabilitation, so the Tribunal cannot be satisfied the suspension would adequately protect the public. It is unclear what the purpose of this is as the proceedings have been conducted on the basis that the [practitioner] accepts the orders sought by the [Commission], being the cancellation of his registration with a non-review period of 12 months. Despite the [practitioner]'s position, the [Commission] may have a concern that the Tribunal may consider a suspension despite the [Commission]'s position (accepted by the respondent), as there is material before the Tribunal (other than the [practitioner]'s evidence) which would support a suspension as an alternative to a cancellation of registration. That material includes: • The [practitioner]'s resignation from employment … • [f]indings of the magistrate; • [the practitioner]'s letter of apology; • [the] Affidavit of Terrance Tai (unchallenged) as to the effects of the respondent's conduct on him and his efforts to change; and • [the] Affidavit of Dr Alison Liu. As noted in the submissions in reply, the rule in Jones v Dunkel: • Does not permit an inference that untendered evidence would in fact have been damaging to the party not tendering it; • Cannot be employed to fill gaps in the evidence or to convey conjecture and suspicion into inference. 1. On this issue, there is no need to draw adverse inferences against the practitioner, and none are sought by the Commission. The simple fact is that there is no direct evidence from the practitioner establishing his insight, remorse, further education undertaken, his motivation, his ongoing professional aspirations going forward or any of the usual evidence the Tribunal usually sees or expects to see in these matters. Costs 1. We shall deal with costs at the conclusion of these reasons. Consideration 1. The relevant principles in determining a protective order have been stated on many occasions including in Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 at [57] to [66]. We paraphrase those principles as follows: 1. the protection of public safety and health is paramount; National Law, s 3A; 2. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); 3. the Tribunal must consider the maintenance preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; 4. protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; 5. the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340; 6. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; 7. the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commissions v Ly [2010] NSWMT at [20]; Meakes at [113] to [114]. Conclusion 1. The Commission seeks an order under s 149C(1)(c) of the National Law cancelling the practitioner's registration. That section provides that: 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— … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession, … 1. To paraphrase the Tribunal in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 1. the public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Azzam at [92]; Prakash at [91]. 2. protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Azzam at [93]; Prakash at [91]. 3. although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Azzam at [94]; Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 4. there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: Azzam at [95]; Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69]. These include: 1. the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction; 2. the unacceptability of certain kinds of conduct; and 3. the maintenance of confidence in the high standards of the profession. 1. whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Azzam at [96]; Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 1. In the circumstances of this matter, the practitioner has been convicted of offences. The question remains whether the circumstances of the offences render the practitioner unfit in the public interest to practise the practitioner's profession. 2. In our view, it is clear that the circumstances of the offences render the practitioner unfit in the public interest to practise. This is because the practitioner was convicted of four criminal offences, being two offences of suppling a prohibited drug and two offences of selling a restricted substance. As the Tribunal commented in Health Care Complaints Commission v Akawee [2023] NSWCATOD 115 at [92], the proper and legal dispensing of any medication, including Sch 8 medications, lies at the very heart of the role of the pharmacist. 3. In our view, the practitioner's conduct posed a significant risk to the health and safety of the public. Any order short of deregistration would be an inappropriate and inadequate response to the seriousness of his misconduct. 4. We accept the Commission's submission that, given the nature and gravity of the practitioner's conduct, public and professional confidence cannot be reposed in him to uphold and observe the high ethical standards required of a pharmacist. 5. The disqualification period sought by the Commission will make clear to the practitioner and other practitioners the seriousness with which we view illegally supplying Sch 8 and Sch 4D drugs for financial gain. 6. We consider that the practitioner's registration should be cancelled, and that he should not be permitted to apply for re-registration for a period of one year from the date of these reasons. Costs 1. The Commission sought costs in accordance with the usual principles: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 2. The practitioner submits that each party should pay their own costs. He submits that (footnotes omitted): 19. One of the matters that can go to a reduction, if not an order that each party pay their own costs, is a decision to admit the complaints. 20. In this case, by his response, the respondent admitted the complaints and in fact had admitted the same complaints initially raised by the Pharmacy Council and the HCCC (see paragraphs 5 & 6 above). The case before the Tribunal is not a case where the practitioner disputed the complaint, and in losing the dispute is obliged to bear the applicant's costs. Further, no issue was made as to the amendments of the complaints by the applicant on the day of the hearing, and in fact the applicant accepted the penalty of deregistration as proposed by the applicant. The admissions and the manner of the conduct of the case by the respondent is supportive of the respondent's submission that each party pay their own costs. 1. The practitioner relies on Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45]. The Court of Appeal there stated: 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. 1. In response, the Commission submits that the practitioner's admissions and submissions do not justify departing from the general rule that the practitioner pay the Commission's costs because: 1. the practitioner properly admitted the complaints given that the Commission's compelling evidence established both Complaints; 2. cooperating in the proceedings does not, of itself, provide a proper basis to depart from the general rule: Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [99]: The Commission was largely successful in these proceedings. We saw nothing to indicate that it conducted the proceedings in a manner that meant that costs were unnecessarily incurred. While as CSM points out he fully cooperated in these proceedings and the investigation conducted by the Commission, the authorities clearly indicate that, of itself, does not provide a proper basis to depart from the usual rule. … 1. the practitioner properly admitted the agreed facts, and his efforts to reduce costs were a benefit to himself as well as to the Commission by narrowing the issues in dispute: see Health Care Complaints Commission v Spruce (No.2) [2015] NSWCATOD 153 where the Tribunal stated: 13. Firstly, the fact that Mr Spruce, although not admitting most of the elements of the Complaints, did not contest them merely saved the Commission from the expense that a fully contested hearing would have entailed. Regardless of the reasons for his failing to admit the Complaints, he did not do so and the Commission had to prove them by evidence. 14. Secondly, Mr Spruce's efforts to reduce costs were a benefit to him as well as to the Commission in that he did not incur the costs of a fully contested hearing. In any case, as a matter of principle (often honoured only in the breach) litigants are obliged to make genuine efforts to run their litigation efficiently: see generally Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 and more particularly, Leading Edge Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568 and Shao Chun Bi v Mourad [2010] NSWCA 17 at [47] per Allsop P. 15. Thirdly, … Costs are not punitive but are compensatory. His co-operation in, and contribution to, the efficiency of the hearing saved him costs and reduced the costs of the Commission. Had he contested the hearing, his own and the Commission's costs, would have been considerably more. He has therefore already received the benefit of his co-operation and efficiency. 1. the practitioner properly consented to cancellation given that the circumstances of the offence render the practitioner unfit in the public interest to practice pharmacy; 2. the Tribunal is not bound to make the orders requested by either party even if the parties are in agreement: Occupational Division Guideline for Health Disciplinary Matters at [20]; 3. the Tribunal has the discretion to make findings and impose protective orders (National Law, ss 149C(1)(c) and 149C(7), and is required to set out its findings on material questions of fact, refer to the evidence on which its findings were based and give its reasons (National Law, s 165M); 4. as a matter of principle, litigants are obliged to make genuine efforts to run their litigation efficiently: Spruce (No. 2) at [14]; Civil and Administrative Tribunal Act 2013 (NSW), s 36(3), which provides that each party is under a duty to co-operate with the Tribunal to give effect to the guiding principle (to facilitate the just, quick and cheap resolution of the real issues in the proceedings) and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal. 1. We consider that the Commission's submissions correctly state the appropriate outcome. 2. The practitioner must pay the Commission's costs as agreed or as assessed. Orders 1. The Tribunal orders: 1. Complaint One, namely that the practitioner has been convicted of a criminal offence in NSW, is established. 2. Complaint Two, namely that the respondent is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), in that he contravened s 130(1) of the National Law, is established. 3. Pursuant to s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) the registration of the respondent as a pharmacist is cancelled. 4. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), the respondent may not make an application to review order (3) for a period of one year from the date of these orders. 5. The respondent is to pay the applicant's costs as agreed or as assessed. 6. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure to any person or entity of the names of the persons identified as persons A and B in the proceedings. ********** 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 Amendments 23 August 2023 - Spelling of Respondents first name from Cheung to Cheng Date of hearing from 15 May 2023 to 15 June 2023 Reference to s149C(1)(b) to s149C(1)(c) in par 4 Non publication order added 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: 23 August 2023