Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v GJR (No 2) [2024] NSWCATOD 98 Hearing dates: On the papers Date of orders: 12 July 2024 Decision date: 12 July 2024 Jurisdiction: Occupational Division Before: T Simon, Principal Member Decision: The Health Care Complaints Commission is to pay to the respondent, the costs of and incidental to the application to terminate the inquiry, as agreed or assessed. Catchwords: HEALTH — professional registration — registered pharmacist — termination of proceedings — costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v GJR [2024] NSWCATOD 71 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Costs Parties: Health Care Complaints Commission (Applicant) GJR (Respondent) Representation: Counsel: A Petrie (Applicant) S J Maybury (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Hall & Willcox (Respondent) File Number(s): 2023/00164203 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of the respondent is prohibited except to any regulatory bodies who governs the registration of the respondent as a pharmacist or other health practitioner. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the patients' names contained in the ward register contained at page 41 of exhibit 1 is prohibited. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Reasons for decision 1. These proceedings relate to complaints made against a respondent who was a registered pharmacist. The Health Care Complaints Commission (HCCC) referred eight complaints about the respondent to the Tribunal. The HCCC seeks findings of unsatisfactory professional conduct and professional misconduct against the respondent and seeks orders under the Health Practitioner Regulation National Law (NSW) (National Law). 2. The complaints regarding the respondent can be summarised as follows: 1. The respondent inappropriately dispensed Valium to a patient on 25 July 2020. The respondent also inappropriately dispensed Prodeine to that patient and made a false record about the dispensing. 2. The respondent self-dispensed various Schedule 3, 4 and 8 drugs, for her own personal use, between July 2018 and July 2020. 3. The respondent inappropriately dispensed take away doses of methadone to patients B, C, E and F during the period from 27 June 2020 to 4 July 2020. The respondent also failed to maintain proper knowledge of the NSW Opioid Treatment Program Community Pharmacy Dosing Point Protocol and so acted contrary to the Code of Conduct for Pharmacists (March 2014). 4. On 13 and 19 June 2020 the pharmacy, at which the respondent was proprietor, inappropriately dispensed methadone to patient D and on that basis the respondent failed to ensure all pharmacists at the relevant pharmacy complied with their obligations. 5. Largely by reason of the complaints set out above, the respondent failed to keep proper drug registers during the period about July 2018 to January 2021. 6. On 9 October 2020, the respondent directed an employee to only take cash payment for methadone dispensing to avoid paying tax. 7. As a result of the six complaints which have been summarised above, the respondent is guilty of professional misconduct. 8. The practitioner has a mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of pharmacy. 1. On 5 June 2024, I made orders that it was not in the public interest for an inquiry into the matter to proceed and decided to terminate the inquiry and dismissed the proceedings (Health Care Complaints Commission v GJR [2024] NSWCATOD 71) (Original Decision). 2. The respondent sought the costs of the proceedings. Orders were also made for the parties to provide written submissions and material in relation to the costs applications. The parties agreed, and I was satisfied that the costs application could be determined on the papers. Consideration 1. The Tribunal has power to order costs, as conferred by clause 13 of Schedule 5D of the National Law. Generally, costs of proceedings before the Tribunal follow the event unless there has been some disentitling conduct by the HCCC in the conduct of the proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342. An order for costs is discretionary. 2. The respondent makes submissions that she has been successful in her application to bring the proceedings to an end and that application was resisted by the HCCC. The event, which is the overall outcome of the proceedings, has been determined in favour of the respondent and, prima facie, she should have her costs paid by the HCCC. 3. That respondent has provided an affidavit from Mr Mitchell Stein who was the solicitor on the record. The respondent submits that the affidavit demonstrates that for a lengthy period leading up to filing its complaint and seeking to maintain it, the HCCC was on notice that: 1. The respondent was no longer a registered pharmacist. 2. The respondent had sold her pharmacy interests; and 3. The conduct of the HCCC in proceeding to prosecute the complaint against the respondent was aggravating her mental health issues. 1. The respondent submits that there is no disentitling conduct on her part and that the usual rule should be followed. 2. The HCCC opposes the application for costs. The HCCC submits in the alternative that any costs order should only be in relation to the hearing of the termination application itself and not the respondent's costs up until the hearing. 3. From 28 December 2021 to 27 September 2022 the respondent was the proprietor of a pharmacy and a registered pharmacist. 4. The respondent's registration as a pharmacist did not lapse until 6 December 2022 and she was removed from the Ahpra Register of Practitioners on 15 December 2022. 5. Having considered the parties' submissions, I find that the respondent should have the costs of and incidental to the application to terminate the inquiry. It is proper and the HCCC should not be dissuaded from referring complaints the subject of the conduct which was alleged against the respondent. The respondent accepted each of the allegations against her, however it was only at the hearing of the application to terminate the complaint that the respondent's counsel informed the Tribunal that he had instructions that the respondent admits the factual conduct the subject of the complaints and that they amounted to professional misconduct: see [37] of the Original Decision. 6. The HCCC referred the complaints to the Tribunal on 23 May 2023. On 18 July 2023 the respondent's solicitor wrote to the HCCC that she would be making an application to terminate the proceedings before the Tribunal against her. The HCCC submits that at that stage the respondent's medical records were not available in their entirety to the HCCC and an authority was provided to the HCCC by the respondent, through her solicitor, on 4 August 2023. It was not until 23 August 2023 that the application to terminate the inquiry was made by the respondent. It was after that point that the HCCC chose to oppose that application. 7. It was not improper for the HCCC to refer the substantive complaint. However, they were unsuccessful in opposing the application to terminate the inquiry. On that basis, I find that the respondent should be awarded the costs of and incidental to the application to terminate the inquiry, as agreed or assessed. Orders 1. I make the following order: 1. The Health Care Complaints Commission is to pay to the respondent, the costs of and incidental to the application to terminate the inquiry, as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 16 July 2024 - Catch word amended from Registered nurse to Registered Pharmacist 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: 16 July 2024