Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Grewal [2023] NSWCATOD 132 Hearing dates: 1 & 2 May 2023 Date of orders: 31 August 2023 Decision date: 31 August 2023 Jurisdiction: Occupational Division Before: H J Dixon SC, Senior Member H Dowling, Senior Member T Hehir, Senior Member B Seth, General Member Decision: (1) Under s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration as a pharmacist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order. (2) The Respondent is reprimanded pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). (a) failing to disclose a change in her criminal history when lodging an application for renewal of her registration in 2014; (b) failing to notify the National Board within 7 days of being charged on 18 March 2020 with an offence punishable by a term of imprisonment of 12 months or more; and (c) breaching a condition on her registration as a practitioner in December 2019 that she abstain completely from the consumption of alcohol. (3) Under s 149C(7) of the Health Practitioner Regulation National Law (NSW) the Respondent may not make an application under Division 8 to review Order 1 to return to the register until at least three years from the date of this order. (4) Under s 149C(5) of the Health Practitioner Regulation National Law (NSW) the Respondent is prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 for a period of three years. (5) The Respondent is to pay the costs of the Commission as agreed or failing agreement as assessed under Clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW). (6) The non-publication order made by the Tribunal on 1 May 2023 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or disclosure of the name of the Respondent pending the final hearing and determination of this matter is cancelled. Catchwords: Occupations – pharmacist – misconduct and discipline – whether guilty of unsatisfactory professional conduct or professional misconduct – criminal conviction – failure to disclose criminal charges – failure to disclose convictions – breach of conditions – prohibition order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a) Crimes Act 1914 (Cth), s 16BA Crimes (Administration of Sentences) Act 1999 (NSW) Criminal Code Act 1995 (Cth), s 135.1(1) Health Care Complaints Act 1993, ss 4, 34A(1) Health Practitioner Regulation National Law (NSW), ss 5, 109(1)(b), 130(1), 139B(1), 139E, 144, 149A, 149C, 150, Sch 5D Cl 13 Road Rules 2008 (NSW), s 300 Road Transport Act 2013 (NSW), s 110(3)(a) Cases Cited: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; Chen v Health Care Complaints Commission [2017] NSWCA 186; Health Care Complaints v Amalakumar [2019] NSWCATOD 173; Health Care Complaints Commission v Bolton [2021] NSWCATOD 160; Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53; Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65; Health Care Complaints Commission v Lidman [2020] NSWCATOD 48; Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83 Texts Cited: None Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) S Grewal (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (In person) File Number(s): 2022/00301829 Publication restriction: On 28 October 2022 the Tribunal made an order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure to any person or entity of the names of the persons set out in the schedule to the complaint filed in the Tribunal. reasons for decision 1. By application for disciplinary findings and orders dated 7 October 2022, the Healthcare Complaints Commission ("the Commission") sought orders against a registered pharmacist, Ms Sabina Kaur Grewal ("the Respondent"), as follows: 1. Cancellation of the Respondent's registration pursuant to s 149C(1)(a) and/or s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) ("the National Law") with a non-review period of five years; 2. A prohibition order prohibiting the Respondent from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 for the same period as any non-review period imposed; 3. An order that the Respondent pay the Commissions' costs under Clause 13 of Schedule 5D of the National Law. Complaint 1. Initially, the Commission supported the application with 10 complaints. By leave of the Tribunal the complaints were amended in accordance with the Amended Complaint filed and served on 26 April 2023. Complaint 7 was withdrawn, and a number of particulars were also withdrawn. 2. As a result, the Complaints pressed and as particularised are as follows: 1. Complaint 1: pursuant to s 144(a) of the National Law, the Respondent has been convicted of a criminal offence in New South Wales. 2. Complaint 2: the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that she has contravened s 109(1)(b) of the National Law. The complaint is that in June 2014, the Respondent was convicted in the Local Court of New South Wales of 1 count of the Use of a Mobile Phone by Driver contrary to s 300 of the Road Rules 2008 (NSW) and 1 count of Low Range Prescribed Concentration of Alcohol While Driving pursuant to s 110(3)(a) of the Road Transport Act 2013 (NSW) and then failed on or about 18 November 2014, when lodging an application for renewal of her registration with the National Board, to include in or accompany the application for renewal a statement that included details of the change to her criminal history referred to above in contravention of s 109(1)(b) of the National Law. 3. Complaint 3: the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that she contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of being charged on 18 March 2020 with the following offence that was punishable by imprisonment of 12 months or more, namely, 1 count of Dishonestly Intend to Obtain a Gain from Another Person with Intention contrary to s 135.1(1) of the Criminal Code Act 1995 (Cth) (which carried a maximum sentence of five years imprisonment). 4. Complaint 4: the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Law in that she contravened a condition to which her registration was subject, namely, that she was between 16 October 2019 until 12 March 2020 subject to a condition, namely, Condition 1, that she must not practise as a pharmacist. The complaint is that the Respondent contravened Condition 1 in circumstances where on 1 January 2020 at the Lindfield Pharmacy, she dispensed medication under the name of another pharmacist, Person G. 5. Complaint 5: the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Law in that the Respondent contravened a condition to which her registration was subject between 9 September 2019 and 27 May 2020, namely, Condition 13, to the effect that she was to abstain completely from the consumption of alcohol. It is then claimed that the Respondent contravened that condition of her registration in circumstances where in December 2019, the Respondent consumed alcohol at a Christmas party. 6. Complaint 6: the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice, or purported practice, of a pharmacy in that her registration as a pharmacist was suspended effective 23 May 2020 following proceedings that were held under s 150 of the National Law on 22 May 2020, and that on 9 August 2020, the Respondent practised pharmacy in circumstances where she dispensed medication without a prescription and in the name of another pharmacist, Person G. 7. Complaint 8: the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she has engaged in improper or unethical conduct relating to the practice, or purported practice, of a pharmacy in that on 1 January 2020 she dispensed medication under the name of another pharmacist, Person G, and on 9 August 2020, dispensed medication under the name of another pharmacist, Person G. 8. Complaint 9: the Respondent is guilty of professional misconduct under s 139E of the National Law in that she engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of her registration. The complaint is supported by the particulars of Complaints 2, 3, 4, 5, 6 and 8 and the claim that those particulars each justify a finding of professional misconduct. It is claimed, in the alternative, that when two or more of the particulars of Complaints 2, 3, 4, 5, 6 and 8 are taken together, a finding of professional misconduct is justified. 9. Complaint 10: pursuant to s 144(d) of the National Law, the Respondent has an impairment within the meaning of s 5 of the National Law being a mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of pharmacy. The condition particularised is that the Respondent suffers from an Alcohol Use Disorder and a Major Depressive Disorder. Background 1. We set out in summary form the background to the Respondent's practice and offending. 2. In 2000 the Respondent was registered as a pharmacist in New South Wales, having obtained a Bachelor of Pharmacy from Sydney University in that year. 3. In 2013 the Respondent purchased a pharmacy at a medical centre at South Cronulla with financial assistance from family members. The business was successful and, based on that success, the Respondent decided to open a second pharmacy in Paddington, a venture which was described by the Respondent as a disaster from beginning to end. 4. In or about 2007, it became necessary for the Respondent to sell the South Cronulla Pharmacy because of financial pressures arising from the failed business venture in Paddington. At this time, the Respondent was suffering serious mental health issues resulting in her admission to hospital. 5. Later, after she had a daughter born in July 2013, she and her new partner moved to Lithgow, and commencing in December 2013 she practised as a pharmacist there. That was not a successful move and the Respondent also experienced relationship difficulties. 6. Thereafter, the Respondent moved to Sydney to start again and eventually purchased a pharmacy in Lindfield in which she practised with effect from 1 October 2015. The purchase price was significant and in order to achieve the purchase the Respondent borrowed a significant amount of money. She obtained a loan from her parents, used their residence as security for the loan, and her parents increased their own mortgage upon that residential property. They also put their cash savings into the business and drew from superannuation funds and other borrowings to support the venture. 7. Thereafter, there were significant financial difficulties, and the pharmacy was not sustaining sufficient profit to meet the Respondent's liabilities. At that point, the Respondent embarked on a course of conduct to defraud Medicare in order to boost her gross profits. 8. In June 2016, the Respondent suffered further very significant mental health issues and was admitted to hospital for care. 9. Following reports to the Pharmacy Council and proceedings conducted by delegates of the Council under s 150 of the National Law a number of conditions were on 13 July 2016 imposed on the Respondent's registration and steps were taken to initiate referral of the matter to the Council's Impaired Registrants Panel. 10. An Impaired Registrants Panel was convened on 10 October 2016 which delivered a report which confirmed the practice related conditions imposed on the Respondent's registration on 13 July 2016 and also recommended to the Pharmacy Council that a number of health related conditions be imposed on her registration. 11. Impaired Registrants Panel reviews occurred in April 2017, 30 October 2017, 30 April 2018, 18 July 2018, 14 November 2018, and 11 March 2019. The reviews identified a number of instances where the Respondent was not fully complying with the conditions imposed on her registration including in respect of the testing regime relating to the consumption of alcohol. 12. There then followed a number of hearings under s 150 and s 150C of the National Law during the period June 2019 to June 2020, culminating in a report of 5 June 2020 confirming the suspension of the Respondent's registration on 23 May 2020. 13. Throughout the period October 2016 to June 2020 the Respondent continued to suffer from challenging mental health issues requiring, in some instances, serious medical intervention to assist her. 14. In the lead up to these events, the Respondent had also had significant challenges caused by her dependence on alcohol. 15. The course of conduct embarked upon by the Respondent to gain financial benefit by defrauding Medicare led to her being charged on 18 March 2020 by the Commonwealth Director of Public Prosecutions with 1 count of Dishonestly Intend to Obtain a Gain from Another Person with Intention contrary to s 135.1(1) of the Criminal Code Act 1995 (Cth). Sometime later, between 18 March 2020 and 12 May 2020, a further 2 separate counts under the same legislation were laid against the Respondent. 16. It is also apparent that the Respondent's offending occurred during the period of the Pharmacy Council's intervention described above. 17. On 12 March 2021 at the Sydney Downing Centre, the Respondent was convicted in the District Court of New South Wales of 1 count contrary to s 135.1(1) of the Criminal Code Act 1995 (Cth) and with the other conduct taken into account by the District Court in sentencing the Respondent in accordance with s 16BA of the Crimes Act 1914 (Cth). 18. On 12 March 2021, the Respondent was also ordered to pay reparation to the Commonwealth of Australia in the amount of $365,922.09 and was sentenced to a term of imprisonment of 1 year, 6 months to commence on 12 March 2021 and expire on 11 September 2022, to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentences) Act 1999 (NSW). Conviction of a Criminal Offence - Complaint 1 1. There was no dispute in these proceedings that the Respondent was convicted of the criminal offence as set out above. Evidence of the criminal offence, including fact sheets, pre-sentence reports, certificates of conviction and Court records were available to the Tribunal. 2. Accordingly, we are satisfied the subject matter of Complaint 1 is proven. Failure to Comply with Statutory Reporting Requirements – Complaint 2 1. Under s 144(b) of the National Law, a ground for complaint about a registered health practitioner is that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. 2. Unsatisfactory professional conduct under s 139B(1)(b) of the National Law is relevantly defined to include: "A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this law …" 1. Pursuant to s 109(1)(b) of the National Law, an application for renewal of registration by a practitioner must include, or be accompanied by, a statement that includes details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration. The convictions referred to in Complaint 2 are events which required disclosure. 2. It was not disputed that the Respondent failed to make this disclosure when seeking renewal of her registration. In her submissions to the Tribunal at the hearing she indicated that it had never occurred to her in 2014 that she was required to make reports of this kind and it came as a shock to her to be confronted with the allegation. 3. We are satisfied that Complaint 2 has been substantiated. Failure to Notify of Charges – Complaint 3 1. Under s 130(1) of the National Law, a registered health practitioner is obliged within 7 days after becoming aware of being charged with an offence punishable by 12 months imprisonment or more to give the National Board established for the practitioner's profession written notice of the event. 2. There is no dispute that the charge of the offence occurred on 18 March 2020 and is within the scope of s 130(1) of the National Law. It is also clear on the evidence before us that the Respondent did not give notice to the National Board within 7 days of being charged of the offence. 3. The importance of notification of charges to regulatory agencies was described by the Tribunal in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [100] and [190] as follows: "100. Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place. … 190. Mr Bolton failed to comply with provisions in the National Law requiring notification to AHPRA of criminal charges and convictions within seven days. These provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow regulatory authorities to decide whether a health practitioner's criminal history is relevant to the practise of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered." 1. The reporting obligations under these provisions of the National Law form part of the system for the maintenance of the integrity of regulation and for the disciplining of health professionals set up by the National Law (see, for example, Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [34]). The duties of candour to professional regulators are extremely important to enable the system to function and to protect the health and safety of the public (Health Care Complaints Commission v Lidman [2022] NSWCATOD 48 at [20]). 2. In submissions to the Tribunal at the hearing the Respondent addressed this complaint by stating that she was heavily dependent on legal advice and at the time this was a very traumatic period for her. She was allowing legal representatives to advise her. It was not made clear how this latter issue resulted in her failure to give the required notice. 3. On the evidence before the Tribunal it is clear that at least by 18 March 2020 the Respondent was aware of the charges laid against her. 4. On 13 May 2020 there was scheduled an Impaired Registrants Panel hearing under the National Law with the Respondent for 14 May 2020. On 13 May 2020, the Respondent wrote to the Pharmacy Council's programme officer coordinating the hearing in these terms: "I'm writing to you to ask for a deferral of tomorrow's meeting. I have sought new legal council [sic] in relation to another matter and I have to focus on this. It is taking all my emotional and mental reserves. Can I please request an adjournment on advice of my solicitor? …" It is more than likely that the reference to "another matter" referred to the charges laid and the District Court proceedings. 1. The programme officer responded by email on the same day to advise the Respondent that the Impaired Registrants Panel review would be deferred to another date, but at the same time, advised the Respondent that the Council will be considering taking immediate action under s 150 of the National Law in relation to the criminal matter that had come to the Council's attention the previous day. 2. It is thus clear, and we find, that the Respondent failed to comply with her obligations under the National Law to notify the National Board of the charge laid against her on 18 March 2020 within 7 days. Moreover, we find that the Respondent knowingly withheld the fact of the charges being laid against her after they were laid and failed in her duty of candour to the professional regulators. 3. In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173, the Tribunal rejected the submission by the relevant practitioner that there was a discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unsatisfactory professional conduct. The Tribunal held that once the contravention by the practitioner has been established as a matter of fact, the section designates that contravention as unsatisfactory professional conduct. 4. As a result of the Respondent's failure, the regulatory authorities in this case were ignorant of the charges for some time. 5. The Tribunal regards the breach of the Respondent's obligations as established in Complaint 3 and as a serious breach of her obligations. Breach of Condition 1 – Dispensing Medication on 1 January 2020 – Complaint 4 1. There is no dispute that during the period 16 October 2019 and 12 March 2020 the Respondent's registration was subject to a condition that she was not to practise as a pharmacist. 2. The Commission relies on the evidence of another pharmacist employed at the Lindfield Pharmacy at the relevant time, namely, Person G to support this claim that on 1 January 2020 the Respondent breached this condition. 3. Person G gave evidence in the proceedings and also prepared a written statement signed on 2 December 2021, which was admitted into evidence. In his written statement Person G said that on 1 January 2020 the Respondent dispensed medication under his name when the pharmacy was closed. There is no dispute that on 1 January 2020 the pharmacy was closed. 4. The issue in relation to Complaint 4 turns not so much on whether medication was dispensed under someone else's name, or after hours, but whether medication was dispensed by the Respondent on the day and hence, as alleged, she practised pharmacy contrary to her conditions. 5. Person G described the particular medication, which he said was dispensed on the day by the Respondent, as "prescription medication for a kidney failure patient, possibly Aranesp". Aranesp is the medication said to have been dispensed. 6. Person G then stated that "the customer" came to the pharmacy on 2 January 2020 when Person G was working and requested another medication. It was then that Person G "saw" that there had been dispensed for that customer medication under Person G's initials on the previous day. Person G then said that "I was annoyed and confronted (the Respondent) who was out the back on the computer", and said "If you want to do stuff like that, do not use my initials". 7. Person G says that, "She gave me a sheepish grin that implied guilt that she had been caught. She did not say anything in response, but I checked the dispensing records a few moments later and it had been deleted." 8. Person G then refers to text messages attached to his statements dated 2 January 2022 between the Respondent and other staff members which indicated that the Respondent was at the pharmacy on 1 January 2020. 9. In this complaint it is clear that Person G does not clearly identify the relevant drug said to have been dispensed, but states simply as it being "possibly" Aranesp. 10. There is no evidence as to the identity of the "kidney failure patient", nor does the Tribunal know whether there was a prescription for anyone provided, or by whom (prescribing medical practitioner). The complaint does not allege that the dispensing occurred without a prescription. The prescription which ought to have provided more detail was not in evidence. 11. The Tribunal also has no evidence as to whether it is readily open to a practitioner to delete records of drugs that have been dispensed. 12. Further, it is clear that no customer (patient) could have attended the pharmacy on 1 January 2020 when it was closed. 13. Person G also does not spell out precisely what he said to the Respondent but simply "if you do stuff like that". We do not therefore accept that there is a sound probative basis for Person G's opinion as to what the Respondent's "grin" implied. 14. When the complaints were particularised for the Respondent in a letter from the Commission on 4 June 2021 in respect of this complaint, the Respondent through her solicitors requested that the Commission provide her with the details of the alleged patient for whom the kidney failure medication was said to have been provided. No such response was received. 15. On the evidence, we are satisfied that at least the following has been established: 1. The pharmacy was closed on 1 January 2020; 2. No other staff member was rostered on to be at the pharmacy on the day and Person G did not attend on the day; 3. The text messages referred to in Person G's statement indicate that the Respondent did attend and was in the pharmacy on 1 January 2020. 1. The question then is how probable is it that the Respondent would have prescribed "kidney failure patient medication" in circumstances where there is no evidence from which we can infer that she had any reason for doing so. There is no suggestion that the Respondent, or anyone associated with her, was the relevant "patient", or that anyone she was associated with required the medication. 2. A claim that a practitioner has practised whilst subject to a condition prohibiting it is a serious allegation with potentially very significant consequences. The nature of the proceedings, being disciplinary proceedings, and the gravity of the allegations need to be taken into account in considering the certainty that the alleged conduct occurred. 3. The evidence in support of this complaint is sparse. There are simply too many unknowns and assertions to support a finding that the complaint has been made out to the requisite degree of certainty, given the seriousness of the allegations (see Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 360 – 361). 4. In the circumstances, we are not satisfied that the Commission has discharged its onus of establishing this particular and Complaint 4 has not been made out. Breach of Condition 13 – Consumption of Alcohol – Complaint 5 1. Complaint 5 seeks to establish that the Respondent breached Condition 13 by "consuming alcohol at a Christmas party" in December 2019. 2. There is no dispute that a condition to the effect that the Respondent was to abstain completely from the consumption of alcohol applied to her registration in December 2019. 3. The Commission relies on medical records of 4 May 2020 recording what had apparently been advised to the relevant medical institution that the Respondent had "… lapsed with alcohol at work Christmas party mid-December - on the way home bought wine 2 bottles". 4. The Commission also relies on information provided to the Pharmacy Council in a s 150 hearing on Friday 22 May 2020 in which the Respondent had indicated that she had drunk at a Christmas party in the previous December and that she was in a "bad way" at the time. 5. The Respondent did, however, indicate to the Pharmacy Council in the hearing that at the same time she had asked the Council for voluntary suspension and took various steps to deal with her mental health conditions at the time. 6. We note that this complaint is concerned with one event at a Christmas function which was not held, it seems, on the work premises, apparently out of hours and did not in any direct way affect the Respondent's practise as a registered pharmacist. In addition, she clearly took measures to address the lapse. 7. Complaint 5 is established and, in our view, there is no discretion available to us in respect of the breach of Condition 13 (see: Health Care Complaints Commission v Amalakumar at [24]). Prescribing Whilst Suspended – Complaint 6 1. Complaint 6 is that the Respondent engaged in improper or unethical conduct relating to the practice, or purported practice, of pharmacy whilst her registration was suspended by reason of the fact that on 9 August 2020 she dispensed medication without a prescription and in the name of another pharmacist, Person G. 2. In his statement tendered into evidence Person G describes this incident as follows: "The second time I noticed that [the Respondent] had dispensed medication under my initials was in August 2020. My colleague Helen noted that Redipred or Predmix had been dispensed to [the Respondent's] nephew the Sunday before but the prescription was owing. I saw that the medication had been dispensed under my initials after hours on a Sunday, without a prescription." 1. It is relevant to observe that in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160, the Tribunal observed: "86. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with proprietary behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct. … 89. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81]." 1. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was also considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 where the Tribunal stated at [25] – [26]: "25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances." 1. In our view, a computer entry showing that a prescription has been filled in the name of another practitioner does not, of itself, constitute improper or unethical conduct. It is not possible to exclude that an error has been made in entering the data. 2. The record of this particular instance identifies the patient as a relative of the Respondent, and the drug dispensed. The record also provides the name of the prescribing doctor, which suggests, at least, that the medication was being provided under the authority of that prescribing medical practitioner although it is possible that an up to date prescription was "owing" in the sense that the drug was provided on the basis that a prescription would thereafter be produced. 3. The fact that a prescription may be "owing" also does not necessarily indicate that the provision of the medication amounts to improper or unethical conduct. That is not an allegation made by the Commission. 4. The description by Person G quoted above about what colleague Helen is said to have noted is hearsay and she was not called to testify. Nonetheless, what she is recorded as having noted was simply that the drug had been dispensed to the Respondent's nephew the Sunday before "but the prescription was owing". No indication was given as to who dispensed this medication. 5. The records of 9 August 2020 to which Person G refers in his statement do not identify that the medication was dispensed after hours on a Sunday. The records do not show that a prescription was "owing". 6. In a written response to the Commission on 22 June 2021, requiring the Respondent to provide information and produce documents under s 34A(1)(a) and (b) of the Health Care Complaints Act 1993 under pain of penalty for non-compliance the Respondent through her solicitors provided the following explanation: "On 9 August 2020, she received a phone call from her brother to assist her nephew, aged two at the time. The nephew had been hospitalised on three separate occasions in 2019 due to breathing difficulties. The Respondent's brother normally kept the relevant drug on hand for an emergency as advised by the nephew's general practitioner." 1. The Respondent's written response further stated that the bottle that her brother had on hand, as well as the repeat prescription, had expired. The response records that the Respondent called the pharmacy and asked a staff member to put the relevant medication aside so that her brother could pick it up before 1:00pm, closing time. It was not claimed by the Commission that this request amounted to the dispensing of the medication. 2. The written response provided on behalf of the Respondent then states that the pharmacist on duty (Person G) dispensed the drug during business hours in lieu of a prescription. The Respondent stated that her brother was attended to by the pharmacy assistant, Ms Erica Moelle, and that there was no interaction between her brother and the pharmacist on duty. It was further stated that the expired prescription had been retained by the pharmacy. 3. In addition, in a written document addressed to the Tribunal dated 28 April 2023 in relation to this complaint, the Respondent recorded that her brother had again confirmed that he picked up the prescription during mid-morning/lunchtime, when the pharmacy was open for business and there were other customers in the store, that he parked at the back and came in the side door, dealt with a female staff member to whom he handed over the prescription and she provided the dispensed medication to him. The Respondent records that her brother did not speak to the pharmacist and remembers distinctly that the Respondent was not present in the store. After evidence closed and during closing submissions the Respondent sought to tender a statement from her brother. We refused that request by reason of the prejudice to the Commission in not being able to question the brother about what was said at that late stage. 4. The Respondent's document dated 28 April 2023 was tendered into evidence. It is not sworn evidence and could not be tested. The contents is, however, consistent with, and to a degree confirmatory of, the s 34A(1) response referred to above. The s 34A response referred to above, and the document dated 28 April 2023, raised matters which needed to be answered by the Commission in order to satisfy its burden of proof. 5. In our view, the evidence does not support a finding that the Respondent was present at the pharmacy on Sunday 9 August 2020. There is also no explanation as to how the particular entry in the records of the pharmacy could have been made by her in the absence of her attendance at the pharmacy. 6. Person G does not explain how the Respondent could have "used his initials". A significant part of his complaint was that the medication was dispensed out of hours. We do accept that Person G did attend and worked on that particular Sunday, from 9:00am to 1:00pm when the pharmacy closed. 7. Although Person G denies that he "issued the medication" under the nephew's name that does not automatically lead to a conclusion that the Respondent did so, or that she made the entry and attributed the filling of the prescription to Person G. It has not been established before us that there was no one else who could have done so in circumstances where Person G was a dispensing practitioner on the day, and the Respondent was, we accept, not in attendance at the pharmacy. 8. The records provided by Person G of drugs dispensed on 9 August 2020 indicated that all the medication dispensed, including this particular medication, was attributed to Person G and no one else. 9. By reference to the records that Person G produced he says "he saw" that the medication had been dispensed under his initials "after hours on a Sunday, without a prescription". The records do not allow a conclusion that the dispensing occurred "after hours", nor that it occurred without a prescription. 10. Person G's concern about the medication having been dispensed after hours needs further consideration. The pharmacy assistant, Helen, made no mention of this and, as we point out above, the records do not support a finding to that effect. 11. Person G also informed the Commission on 19 May 2021 that he had not witnessed what occurred on 9 August 2020. It is clear to us that he simply formed the view that the Respondent was responsible for the prescription owing and assumed that the Respondent made an entry on the dispensing record, an assumption which is dependent on the Respondent doing so after hours because she was not present in the pharmacy when it was open on the day. However, there is no evidence that the Respondent was present at the pharmacy after hours. 12. Although Person G's evidence was admitted without objection and thus unchallenged, we are not obliged to accept the evidence where it suffers from a number of deficiencies (see Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 at [34] – [37]). 13. A complaint that a practitioner practised whilst under suspension has serious consequences and, as a result, the level of proof must not be vague, and the breach must be established by clear proof (see Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [135]). 14. In the circumstances, we are not satisfied that the Commission has satisfied its onus on probative evidence and clear proof that on 9 August 2020 the Respondent practised whilst suspended and Complaint 6 is not made out. Unethical Dispensing of Medication Under Name of Another Practitioner – Complaint 8 1. Complaint 8 relies on the same particulars as earlier complaints, namely, the 1 January 2020 dispensing of medication under the name of another pharmacist, Person G, and the dispensing of medication under the name of another pharmacist, Person G, on 9 August 2020 for the purposes of establishing that the Respondent engaged in improper or unethical conduct relating to the practise or purported practise of pharmacy. 2. For the reasons that we have expressed above, the Commission has not proved to the requisite standard that the dispensing as alleged is attributable to the Respondent. Accordingly, Complaint 8 is not made out. Unsatisfactory Unprofessional Conduct Sufficiently Serious to Justify Suspension or Cancellation – Complaint 9 1. In support of Complaint 9, the Commission seeks to rely on the particulars to Complaints 2, 3, 4, 5, 6 and 8 to justify a finding of professional misconduct. 2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 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. 3. As appears from the analysis and findings above the Commission has made out Complaints 2, 3 and 5 but not Complaints 4, 6 and 8. 4. We are of the view, and find, that the conduct the subject of Complaints 2 and 5 is not sufficiently serious to amount to professional misconduct. 5. In respect of Complaint 2, we accept that the conviction on the charges should have been disclosed but, in our view, the nature of the offences, and the absence of evidence as to the circumstances surrounding the offences do not support such a finding. 6. In respect of Complaint 5, as we outline above, it was a one off event, the place and time of the breach and the absence of evidence that anyone was directly affected by this conduct lead us to conclude that the conduct was not sufficiently serious to justify a finding of professional misconduct. 7. The Respondent will be reprimanded for the misconduct the subject of these two complaints. 8. The failure to disclose the charges laid against the Respondent on 18 March 2020 as set out in Complaint 3 is in a different category. It was deliberate and not merely an oversight. The charges related to defrauding the Commonwealth of Australia and in a very significant way. 9. However, the unsatisfactory professional conduct the subject of Complaint 3 must be sufficiently serious to justify suspension or cancellation of the Respondent's registration. That requires an evaluation and judgment with an appreciation of the consequences for a practitioner of such a finding. 10. As set out above, the Tribunal regards the failure by the Respondent to give the requisite notice the subject of this complaint as serious. However, on balance, we do not think it is sufficiently serious to justify suspension or cancellation. 11. The Tribunal will issue a reprimand for this misconduct. 12. When considering the instances of unsatisfactory professional conduct together they do not alter our view as to their seriousness to justify a finding of professional misconduct. The Practitioner Has An Impairment – Complaint 10 1. Complaint 10, as indicated above, is that the Respondent suffers from disorders that detrimentally affect, or are likely to detrimentally affect, the Respondent's capacity to practise the profession of pharmacy. 2. The Commission relies on reports by a number of specialist clinicians who are highly qualified and experienced. The first report by Dr Glenys Dore of 10 July 2021 which reviews earlier reports by a number of other medical professionals, namely, Dr Anthony Samuels dated 38 January 2022, Dr Anthony Sams dated 8 December 2020 and 16 December 2021 and from Dr Michael Diamond dated 27 February 2021 thoroughly examines the Respondent's history and her disorders. 3. Dr Dore in her report of 10 July 2021, having reviewed all the earlier medical opinions, noted that there was in effect a uniform view by the other practitioners that the Respondent was diagnosed as having Alcohol Use Disorder and a Major Depressive Disorder. 4. In her report, Dr Dore concludes that based on the documentation provided to her, and her clinical assessment of the Respondent, she formed the opinion as at that date that the Respondent had a severe Alcohol Use Disorder which was currently in remission and also a Major Depressive Disorder which was recurrent but was then in remission. 5. Dr Dore, accordingly, concluded that the Respondent was suffering from an impairment, as defined in the National Law, in the form of those disorders. She expressed the opinion that both of these disorders are currently in remission and the Respondent appeared at the time fit to practise as a pharmacist from a health perspective. Dr Dore noted, however, that both disorders have been recurrent in nature and both have the potential to impact negatively on the Respondent's practice as a pharmacist (and the health and safety of the public) should she have a recurrence. 6. In a later report dated 24 April 2023, Dr Dore explained how the diagnoses are likely to detrimentally affect the Respondent's capacity to practise the profession of pharmacy in respect of cognitive functions and behavioural issues. 7. Dr Dore also provided the opinion that to be no longer considered impaired within the meaning of the National Law, a practitioner should have actively engaged in comprehensive treatment for both disorders resulting in both disorders being well-managed and in remission or having low-level symptoms that do not affect functioning. 8. The Commission pointed to the fact that there is no evidence of the Respondent having undertaken the types of comprehensive treatment which Dr Dore referred to. 9. Having reviewed the evidence we are satisfied and conclude that Complaint 10 has been made out and that the Respondent is suffering from an impairment as defined in the National Law. Cancellation of Registration 1. The Commission seeks orders that the Respondent's registration be cancelled and relies on two heads, namely, professional misconduct and also the fact that the Respondent has been convicted of a criminal offence, and that the circumstances of the offence render the Respondent unfit in the public interest to practise the Respondent's profession as provided for in s 149C(1)(c). Circumstances of the Offence 1. It is necessary for the purposes of considering whether the circumstances of the offence of which the Respondent was convicted by the District Court render her unfit in the public interest to practise pharmacy to set out some further details. 2. This is most conveniently done by reference to the reasons delivered by the sentencing Judge in the District Court on 12 March 2021. The Court noted that the Respondent had suffered a major depressive disorder for many, many years which appeared to have affected her throughout her life. Alcohol use disorder had also affected the Respondent in her adult life. These factors were considered relevant to reducing the Respondent's moral culpability. 3. The Court also noted that there was a significant difference between committing offences to support a lifestyle, as distinct from committing offences to seek to remain in practice, and to seek to protect the investment made by family members in the business, which the Respondent was seeking to do. 4. As Payne JA explained in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67] – [69], s 149C(1)(c) is not subject to a requirement of "probable permanent unfitness", but rather requires an assessment of "the practitioner's current fitness to practise". 5. The question thus posed by that subsection is whether the circumstances surrounding the relevant offence currently rendered the practitioner unfit to practise his or her profession in the public interest. The Tribunal must look back to the circumstances of the offence and make that assessment in the present. 6. The question is also whether the objective seriousness of the conduct was at the low or higher end of the scale of offences of this type. 7. It is also necessary in construing s 149C(1)(c) to take into account the objectives of the National Law which relevantly include "The protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". Section 149C(1)(c) is concerned with the character and capacity of health practitioners and whether as a result of having committed an offence they behaved so egregiously as to render the practitioner unfit in the public interest to practise. 8. There are, however, a number of features concerning the circumstances which are particularly relevant to our determination: 1. The offence of which the Respondent was convicted concerned a deliberate strategy committed over a significant period of time involving dishonesty and fraudulent conduct. The Respondent had made PBS claims to Medicare for prescriptions containing false information and without the items being supplied to the patient or authorised person. The Respondent did so with the intention of dishonestly obtaining a gain from the Department of Health of the Commonwealth of Australia. It was objectively serious misconduct. 2. The Conduct was part of a course of conduct and was clearly known to the Respondent as being unlawful and dishonest. 3. The claims made and the conduct were directly related to the practise of pharmacy, the (purported) dispensing of medications and claiming for doing so against Medicare. The misconduct struck at the core of integrity expected of practitioners in this profession. 4. The conduct of the kind engaged in by the Respondent, fraud, is always difficult to detect and in this case was not immediately detected. 5. As is evident from our findings in respect of Complaint 3, the Respondent also sought for some time to avoid the attention of the regulatory agencies and withheld notice of charges from the regulatory authorities. 1. The circumstances surrounding the relevant offence include the Respondent's impairments the subject of the Pharmacy Council intervention identified above, impairments which remain, albeit in remission. 2. Taking into account the circumstances of the offence and the factors identified above we are satisfied that they render the Respondent currently unfit in the public interest to practise her profession. We come to that satisfaction notwithstanding the mitigating factors identified in sentencing in the District Court. We conclude that the Respondent's registration should be cancelled. We note that this is an outcome which was accepted by the Respondent in the hearing as inevitable given the nature and extent of her misconduct. Imposition of Non-Review Period – s 149C(7) 1. It is the Commission's position that following cancellation of the Respondent's registration, the Tribunal should also impose a non-review period of five years under s 149C(7) of the National Law. 2. In support of that claim, the Commission points to the seriousness of the conduct, argues that such a period allows for improvement in the Respondent's mental health conditions and will allow the Respondent to develop better insight into, and remorse for, her conduct. The Commission argues that the conduct was so serious that it supports a long period. In respect of the absence of evidence of proper insight into her conduct, the Commission pointed to statements to the Tribunal by the Respondent at the hearing that she did not know why she acted in the way in which she did, and this was so despite the time that has elapsed since offending to allow the Respondent to properly reflect on her conduct. 3. The Commission also argued that a significant non-review period should be imposed to protect the integrity of the profession and to send a very strong message to the profession generally. 4. The Commission further argued that the offending took place in the workplace at the heart of the practice of pharmacy. In addition, at the time of committing the offence the Respondent was experienced, having been a pharmacist for a considerable period of time and knew, or should have known, that her offending was fundamentally wrong. A short non-review period, it was argued, would not adequately denounce the Respondent's conduct. 5. The Respondent in submissions made to the Tribunal stated that she had completed her Intensive Corrections Order of 18 months imposed by the District Court without incident almost 12 months ago and that she was seeking some mercy from the Tribunal to allow her to rebuild her life. She pointed to the fact that she was now 47 years old and that there are extremely limited employment opportunities available to her because of what occurred. The Respondent indicated that her mental and physical wellbeing is contingent upon an ability to be a useful, contributing member of society. 6. The Respondent also pointed to the fact that the Lindfield pharmacy had recently been sold at considerably less than the purchase price paid and that this imposed very significant financial stress on her and her family. 7. The Respondent argued for a non-review period of two years and that a period of five years would be "a professional death sentence for a person of my age". She pointed to the fact that she has a young child to support as a sole parent and that she received no financial assistance from any other source including government benefits. 8. The Respondent argued that a two year period would allow her to fully recover her health and participate in further tertiary studies in an effort to rebuild her career and life. 9. We are of the view that the factors pointed to by the Respondent for our consideration weigh in favour of a reduction in the non-review period sought by the Commission. 10. However, the following factors are supportive of a lengthy non-review period: 1. The seriousness of the conduct engaged in. 2. The inability of the Respondent to meet the requirements of the Impaired Registrants Panel which we refer to above and the failure on the part of the Respondent to recognise that she has an impairment. 3. Failure on the part of the Respondent to fully appreciate the seriousness of her conduct and an absence of real insight into what she had done despite the time that has elapsed since her offending. The Respondent has yet to take and accept full responsibility for her actions. 4. The Respondent did not provide any evidence of recent treatment of the kind recommended by Dr Dore which would provide us with confidence that she is fit to commence to practise. 5. The Respondent has not taken any active steps, and appears reasonably ignorant of the fact, that if she were to recommence practice she would need to have a continuing professional development plan in place and recency of practice. No evidence was produced to the Tribunal to suggest that she has taken any steps in that regard and also to ensure that she now has the necessary ethical tools so that she will adhere to the necessary ethical standards of behaviour when recommencing practice. 6. The seriousness of the offending requires a strong message to be sent to the profession generally as a general deterrence and denouncement of conduct of this kind and to protect the integrity of the profession. 1. Taking all the matters into account, we are of the view that a non-review period of five years is not warranted but a two year period will not be sufficient. 2. Accordingly, we are of the view that a non-review period of three years should be imposed under s 149C(7) of the National Law. Prohibition Order 1. The Commission also seeks the making of a prohibition order under s 149C(5) of the National Law prohibiting the Respondent from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 for the same period as any non-review period imposed. 2. The prerequisites for the making of a prohibition order rests on the question of whether a practitioner currently poses a "substantial" risk to the health and safety of members of the public. These prerequisites are set out in the decision of Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83 at [84] – [90] as follows: "84. As is clear from the National Law there are two pre-requisites to be established if a prohibition order is to be made. First, the Tribunal must have determined that the practitioner the subject of disciplinary proceedings should have her/his registration suspended or cancelled. Secondly, the Tribunal must be satisfied that the person poses a substantial risk to the health and safety of members of the pubic. 85. In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [139] the Tribunal referred to a substantial risk being a risk that is material, and real or apparent on the evidence, not without substance or speculative by reference to Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96] and Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75]. We note in Brush that the Tribunal found a "material" risk the conduct that subject of the complaint might be repeated but it was not a substantial risk and therefore declined to make the order sought. 86. In Choi at [75] the Tribunal notes: The HCCC also seeks a prohibition order pursuant to s 149C(5) of the National Law to prevent the respondent from providing any health service. The Tribunal accepts that there is a "substantial risk to the health of members of the public" which is a precondition to the making of such an order, and that it is a risk that is real or apparent on the evidence presented and not a risk that is without substance, or which is fancy or speculative: Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Sharah [2015] NSWCATOD 99. 87. We note that in Taylor the Tribunal adopted the assessment of risk referred to in Choi but observed the Tribunal had to be satisfied that there is a "substantial risk". The Tribunal determined that it did not have appropriate expert evidence, nor was there any evidence that the medical practitioner the subject of the disciplinary proceedings had engaged in any inappropriate behaviour since his retirement. The Tribunal declined to make a prohibition order. 88. In Health Care Complaints Commission v Tane (No 2) [2019] NSWCATOD 159 the Tribunal held that a nurse, who had engaged in inappropriate conduct with patients in a drug and alcohol facility including sharing personal information with the patients, seeking to borrow large sums of money from one patient and a loan of $6000 from a second patient, posed a substantial risk of engaging in like conduct if she engaged in certain health services. The Tribunal's finding of substantial risk was based on its assessment the nurse may engage in a similar manner with other patients, and because of her personal circumstances were such that she may not be in a fit and proper state to provide those services. 89. In his oral submissions Mr Fuller referred us to the decisions of the Tribunal in Health Care Complaints Commission v Shrimpton (No 2) [2019] NSWCATOD 48 at [20] – [25] and to Health Care Complaints Commission v Grieve [2016] NSWCATOD 28 at [99] – [114]. The decisions in these matters turn on the facts in each case. In Shrimpton a substantial risk was identified if the nurse, who had behaved inappropriately with vulnerable patients was able to engage in health care services involving patient care. In Grieve the Tribunal suspended the practitioner's registration and found a lack of insight into the offending conduct. 90. In the circumstances of this case, counsel for the HCCC advanced the argument for a prohibition order on the basis that the practitioner lacked insight into the shortcomings in his knowledge and conduct and had not undertaken any significant training to overcome those shortcomings. Reference was also made to the seriousness of the practitioner's conduct and his work for NPS." 1. In support of the prohibition order the Commission effectively raises the same grounds as those put forward in respect of the non-review period. The Respondent argued for a period to correlate with a two year non-review period if her registration were to be cancelled. She indicated that her entire professional career has been health-focused and that she is very limited in her employment opportunities as her skills are heavily health-focused and age is now a barrier. 2. The Respondent said in submissions to the Tribunal that she had applied for numerous non-health related roles without success as she is deemed either overqualified for the role but also that given her criminal record any prospect of providing health services are slim. 3. The Respondent again indicated that the periods of restrictions on future practice needed to consider the impact on her 10-year-old daughter. 4. We are satisfied that currently the Respondent still poses a substantial risk to the health and safety of members of the public since she has not entirely come to grips with the seriousness of her offence and is not yet fully restored or reformed given the impairments that we have identified. The risk, in our view, is material and real, not simply speculative. 5. Accordingly, we propose to make a prohibition order under s 149C(7) for a period of three years. Costs 1. The Commission sought an order for costs which would usually follow if successful in establishing the Complaints. 2. The Respondent pointed to her very difficult financial circumstances she finds herself in. Paying legal costs will obviously impose a further strain on her financial position. 3. However, the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 held at [42] that, "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 role". 4. In addition, an award of costs is intended to compensate a successful party and not to penalise an unsuccessful party, although that is often the practical effect of such an order (Philipiah, at [44]). 5. The Commission has succeeded in establishing the majority of Complaints pressed and in obtaining the consequential orders of cancellation, non-review, reprimands and a prohibition order. 6. Accordingly, there will be an order for costs in favour of the Commission that the Respondent pay its costs as agreed or assessed. Non-Publication Orders 1. At the hearing the Respondent requested that the Tribunal make a non-publication order of her name for the purposes of protecting her young daughter. 2. The Respondent was given leave to file medical evidence in respect of what was said to be the impact on her daughter of disclosure of the Respondent's name in the Tribunal's decision. A short statement by the General Practitioner for the Respondent's daughter was then filed and served. 3. At the time of filing that statement the Respondent sought leave to file a supporting letter from her daughter's school principal. We are not minded to grant such leave. The Respondent had the opportunity to provide all evidence she wished to rely upon prior to the hearing. 4. The Respondent's application was made in circumstances where: 1. the publication of her name occurred in the media, quite widely it appears, at the time of her conviction and sentencing by the District Court; 2. details of her offending, and the circumstances in which they occurred, have thus been in the public domain for some time; 3. the Respondent and her daughter have, we were informed, different family names or surnames. 1. The Tribunal made an interim non-publication order on 1 May 2023 of the name of the Respondent pending the final determination of this matter under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act"). 2. We have concluded that the Respondent's application for a permanent non-disclosure order of her name should be refused. 3. The circumstances set out at 153 above tell strongly against the granting of such an order. 4. In our view, it is in the public interest that the profession, and public at large, are able to link the consequences of the Respondent's offending to specific disciplinary measures instituted by the Commission and the Tribunal's determination and denunciation of such conduct. 5. The CAT Act stresses the need for openness and transparency in the Tribunal's proceedings. The Tribunal is satisfied that the interests of open justice are best served in this matter by the publication of the Tribunal's decision and reasons identifying the Respondent's name. 6. The medical report provided by the Respondent in support of her application is of a very general nature and does not support sufficient support to outweigh the factors identified above. 7. Accordingly, the Respondent's non-publication application is refused. Orders 1. Under s 149C(1)(c) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration as a pharmacist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order. 2. The Respondent is reprimanded pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) for: 1. failing to disclose a change in her criminal history when lodging an application for renewal of her registration in 2014; 2. failing to notify the National Board within 7 days of being charged on 18 March 2020 with an offence punishable by a term of imprisonment of 12 months or more; and 3. breaching a condition on her registration as a practitioner in December 2019 that she abstain completely from the consumption of alcohol. 1. Under s 149C(7) of the Health Practitioner Regulation National Law (NSW) the Respondent may not make an application under Division 8 to review Order 1 to return to the register until at least three years form the date of this order. 2. Under s 149C(5) of the Health Practitioner Regulation National Law (NSW) the Respondent is prohibited from providing a health service as defined in s 4 of the Health Care Complaints Act 1993 for a period of three years. 3. The Respondent is to pay the costs of the Commission as agreed or failing agreement as assessed under Clause 13 of Schedule 5D of the Health Practitioner National Law (NSW). 4. The non-publication order made by the Tribunal on 1 May 2023 pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or disclosure of the name of the Respondent pending the final hearing and determination of this matter is cancelled. ********** 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: 31 August 2023