Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bui v Health Care Complaints Commission [2024] NSWCATOD 110 Hearing dates: 26 March 2024 Date of orders: 30 July 2024 Decision date: 30 July 2024 Jurisdiction: Occupational Division Before: A Starke, Senior Member A Bennett, Senior Member B Scott, Senior Member J Sillince, General Member Decision: (1) The Tribunal makes a reinstatement order under section 163B(1)(c) of the Health Practitioner Regulation National Law in respect of the practitioner. (2) Pursuant to s 163B(4) of the Health Practitioner Regulation National Law, the following conditions are imposed on the practitioner's registration: (a) The practitioner must not work as a pharmacist in charge for a minimum period of 12 months. (b) The practitioner must not work as the sole pharmacist on duty for a minimum period of 12 months. (c) The practitioner must not be the proprietor of a pharmacy for a minimum period of 12 months. (d) Within 21 days of the notice of imposition of these conditions, the practitioner must provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may: (i) seek reports from the Senior Practice Manager/Senior Manager/Senior Partner/proprietor/owner/partner in ownership pharmacist/other as appropriate (the senior person) at each place of practice on at least a quarterly basis or as otherwise required; (ii) request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent. (e) Within 21 days of employment at any pharmacy where the practitioner is employed as a pharmacist or is contracted to provide services as a pharmacist, the practitioner must provide to AHPRA acknowledgment from the senior person at each place of practice: (i) on the approved form (HPS7) that they are aware AHPRA will seek reports from them; (ii) that they have sighted a copy of the decision of the Tribunal which cancelled the practitioner's registration (Health Care Complaints Commission v Bui (No.2) [2022] NSWATOD 45 and a copy of these Reasons for Decision which impose these conditions. (f) All costs associated with compliance with the conditions on his registration are at the practitioner's own expense. (g) Conditions a-f above are to be reviewed 12 months following the date of imposition. (3) The applicant is to pay the costs of the respondent as agreed or assessed. Catchwords: OCCUPATIONS – Pharmacist – Application for reinstatement Legislation Cited: Casino Control Act 1992 Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Pharmacy Business Ownership Act 2001 (QLD) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Bahramy v Medical Council of NSW Blair v HCCC [2023] NSWCATOD 35 Briginshaw v Briginshaw (1938) 60 CLR 336 Dawson v Law Society of NSW [1989] NSWCA 58 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Ex parte Tziniolios; Re Medical Practitioners Act (1966) 67 SR NSW) 448 Frayar v Health Care Complaints Commission [2015] NSWCATOD 117 Health Care Complaints Commission v Bui [2021] NSWCATOD 77 Health Care Complaints Commission v Bui (No 2) [2022] NSWCATOD 45 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Jan v Health Care Complaints Commission [2021] NSWSC 350 Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 Mooney v Medical Council of NSW [2024] NSWCATOD 24 Ng v Health Care Complaints Commission [2018] NSWCATOD 105 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Re Mansoor Haider Zaidi [2006] NSWMT 6 Roberts v Health Care Complaints Commission [2015] NSWCATOD 35 Ristevski v Medical Council of NSW [2016] NSWCATID 18 Scully v Health Care Complaints Commission [2013] NSWMT 7 Zaidi v Health Care Complaints Commission 1998] 44 NSWLR 82 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: Nil Category: Principal judgment Parties: Qui Van Bui (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: A Kelly (Respondent) Solicitors: Health Care Complaints Commission (Respondent) Applicant (self-represented) File Number(s): 2023/00454779 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the names of the patients named in the Complaint is prohibited. REASONS FOR DECISION Introduction 1. In June 2021, a differently constituted Tribunal found pharmacist, Qui Van Bui, guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW) ('the National Law'): Health Care Complaints Commission v Bui [2021] NSWCATOD 77 ('Bui Stage One'). 2. In April 2022, that same Tribunal exercised its discretion to make disciplinary orders and cancelled Mr Bui's registration as a pharmacist: Health Care Complaints Commission v Bui (No 2) [2022] NSWCATOD 45 ('Bui Stage Two'). In addition, the Tribunal prohibited Mr Bui from applying for review of the cancellation order for 18 months. 3. Once the non-review period of 18 months expired, Mr Bui exercised his right under s 163A of the National Law to apply for a reinstatement order pursuant to s 163B(1)(c) of the National Law. 4. Prior to the hearing, the Health Care Complaints Commission ('the Commission') filed a Reply opposing the application, and reserved its position to seek costs. At the hearing, the Commission appeared as contradictor to the reinstatement application. 5. After listening to the applicant's oral evidence in the hearing, the Commission sought to amend its Reply, adopting a neutral position rather than opposing the application. The Commission also sought an order against the applicant for payment of the Commission's costs, as agreed or assessed. 6. We have decided to make a reinstatement order in favour of the applicant, to impose conditions on his registration, and to require him to pay the respondent's costs of the proceedings. 7. These reasons should be read in conjunction with Bui Stage One and Bui Stage Two. Non-disclosure and non-publication order 1. Due to the confidential nature of evidence concerning patients named in the Complaint against the practitioner (considered in Bui Stage One and Bui Stage Two), the Tribunal made an order on 26 March 2024 pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') that the disclosure and/or publication of the names of patients named in the Complaint, is prohibited. Material and evidence before this Tribunal Filed on behalf of the applicant 1. The following material was filed on behalf of the applicant: 1. Mr Bui's application filed on 15 December 2023, to which the following documents were attached: 1. a letter dated 8 December 2023 setting out his grounds for seeking reinstatement; 2. various certificates from the Pharmaceutical Society of Australia ('the PSA') confirming his completion of training as well as other certificates relevant to the practice of pharmacy; 3. a copy of the decision dated 10 July 2019 of the Pharmacy Council of New South Wales ('the Pharmacy Council') to remove conditions on Mr Bui's registration under s 150(1)(b) of the National Law; (not marked). 1. A bundle of documents filed on 16 February 2024, containing Tabs 1 to 10 (some of which contain duplicate copies of documents attached to Mr Bui's application), namely: 1. Tab 1 (letter/submission dated 8 February 2024 from Mr Bui and a statement from Mr Bui dated 13 February 2024); 2. Tab 2 (application for AVL hearing); 3. Tab 3 (Mr Bui's Resume); 4. Tab 4 (various certificates and material issued by the PSA); 5. Tab 5 (various reference documents including cover pages of documents issued by the Australian Health Practitioner Regulation Agency ('AHPRA'), the PSA, the QLD government, the Pharmacy Board of Australia); 6. Tab 6 (Mr Bui's membership of the PSA); 7. Tab 7 (reference list of legislation in States and Territories of Australia); 8. Tab 8 (Pharmacy Council decision on 10 July 2019 to remove conditions on Mr Bui's registration); 9. Tab 9 (acknowledgments of Mr Bui's contributions to the Westbrook community in Queensland); 10. Tab 10 (two personal and character references and one medical certificate from Dr Lindsay Haase); (altogether, marked for identification as "Exhibit A1"). 1. A further bundle of documents filed on 7 March 2024 comprising: 1. Tab 11 (bank statement); 2. Tab 12 (home loan account bank statement); 3. Tab 13 (statutory declaration dated 29 February 2024 by Mr Bui's wife); 4. Tab 14 (Exclusion Order(s) issued by the Star Entertainment QLD Limited); (altogether, marked for identification as "Exhibit A2"). 1. a supplementary bundle filed on 13 March 2024, replacing pages in Tab 5 filed on 16 February 2024; (marked for identification as "Exhibit A3"). Filed on behalf of the respondent 1. The following material was filed on behalf of the respondent: 1. written Reply filed on 26 February 2024 (marked for identification as "Exhibit R1"); 2. a bundle of documents filed on 26 February 2024 (marked for identification as "Exhibit R2"); 3. AHPRA Evidentiary Certificate dated 20 March 2024 setting out the practitioner's registration history, filed on 21 March 2024 (marked for identification as "Exhibit R3"). Oral evidence and submissions at the hearing 1. The applicant appeared by AVL and was cross-examined during the hearing. Further documents filed after the hearing 1. The following orders were made at the hearing on 26 March 2024 requiring: 1. the Commission to file and serve, by 9 April 2024, the conditions it considered to be appropriate to be placed on the applicant's registration, should the Tribunal be minded to make a reinstatement order; 2. the applicant to file and serve, by 23 April 2024, a reply to the conditions that the Commission considers appropriate to be placed on the applicant's registration, should the Tribunal be minded to make a reinstatement order. 1. The Commission filed its proposed conditions on 9 April 2024, and provided a copy to the applicant. 2. Mr Bui's reply dated 12 April 2024 to the Commission's proposed conditions was sent to the Tribunal's Registry but it appeared that Mr Bui's reply may not have been provided to the Commission. 3. On 18 April 2024, the Commission sought leave to provide revised conditions and made no objection if the applicant wished to provide an amended response to the Commission's proposed revised conditions. 4. To ensure procedural fairness to both parties, in particular so that the Tribunal could be confident that each party had received and considered the other party's submissions regarding any conditions that may be imposed on the applicant's registration, the Tribunal made the following further orders on 5 July 2024: 1. Leave was granted to the Commission to file and serve its proposed revised conditions dated 18 April 2024; 2. The applicant was given until 12 July 2024 to file and serve his previous submission dated 12 April 2024 to the Commission; 3. The applicant was given until 19 July 2024 to file and serve any submissions in reply to the Commission's proposed revised conditions dated 18 April 2024. 1. On 8 July 2024, Mr Bui's reply to the Commission's proposed revised conditions was received in the Tribunal's registry. It appeared that this second reply had been provided to the Commission. The legislation Jurisdiction is protective, and not punitive 1. The starting point when considering an application for reinstatement is to note that the jurisdiction of the National Law is protective, and not punitive, since the paramount consideration is protection of the health and safety of the public. Section 3 and 3A specify the objectives and guiding principle of the National Law in New South Wales, as set out below: "3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for- (a)the regulation of health practitioners; and … (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …" 1. Section 3A(1) of the National Law clearly specifies the paramount consideration, namely, the health and safety of the public: "3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration." Principles of the national registration and accreditation scheme 1. Section 3A(2) of the National Law sets out other guiding principles of the national registration and accreditation scheme, including the need for the imposition of restrictions on the practice of a health professional to ensure health services are provided safely and are of an appropriate quality: "(2) The other guiding principles of the national registration and accreditation scheme are as follows- … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality." Unsuitability to hold registration if not a fit and proper person 1. Sections 52 to 56 of the National Law contain provisions dealing with the general registration of health practitioners. Section 55 deals with the circumstances of unsuitability for an individual to hold registration: "55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if- … (h) in the Board's opinion, the individual is for any other reason- (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely." Practitioner's right of review 1. Sections 163 to 163C of the National Law contain provisions dealing with reviews. The applicant practitioner's right of review as set out in s 163A relevantly provides: "163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of- … (b) a relevant order made in relation to the person. … (4) In this section- decision-making entity means the following- … (d) the Tribunal … … relevant order, in relation to a person, means any of the following orders made by a decision-making entity- … (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or …" Purpose of review is to determine appropriateness of the order concerned, not to review the decision of the Tribunal to cancel a practitioner's registration 1. A review determines the appropriateness, at the time of the review, of the order concerned: s 163C(1) of the National Law. In this case, the Tribunal's task is to determine the appropriateness of the cancellation order and whether to now make a reinstatement order. 2. These proceedings are not a re-hearing of the original complaints against Mr Bui. The review is not a review of the decision to cancel Mr Bui's registration, or a review of any findings made in connection with that decision: s 163C(2) of the National Law. Section 163C of the National Law relevantly provides: "163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision." Powers to make a reinstatement order and impose conditions 1. The Tribunal's powers on review include dismissing the application or making a reinstatement order: s163B(1) of the National Law. The Tribunal may also impose conditions on a person's registration: s 163B(4) of the National Law. 2. A reinstatement order is an order that the person may be registered if the person applies to the National Board and the National Board decides to register the person: s 163B(3) of the National Law. 3. Section 163B relevantly provides: "163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following- (a) dismiss the application; … (c) make a reinstatement order; … (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. … (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order." Power to award costs 1. Cl 13 in Sch 5D to the National Law contains provisions relevantly dealing with the power of the Tribunal to award costs, and relevantly provides: "13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal." Determining the appropriateness of a reinstatement order 1. As clarified by Leeming JA in Jan v Health Care Complaints Commission [2021] NSWSC 350 at [21], the Tribunal's opinion as to whether the applicant is a fit and proper person will inform its consideration of "appropriateness". 2. Whether Mr Bui is, in the opinion of the National Board, a "suitable person" to hold general registration in a health profession under s 52(1)(c) of the National Law, incorporates whether he is a "fit and proper person" to hold that registration: (s 55(1)(h) of the National Law). 3. The onus is on Mr Bui to demonstrate that he is a fit and proper person, suitable to hold registration, and is able to practise in a competent and ethical manner: Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [18]. He must prove this to the civil standard, that is, on the balance of probabilities (tempered by the requirements of Briginshaw v Briginshaw (1938) 60 CLR 336 ('Briginshaw'). 4. In the case of Re Mansoor Haider Zaidi [2006] NSWMT 6 ('Re Mansoor') at [42], the Medical Tribunal noted that an applicant for reinstatement is in a more disadvantageous position that an original applicant: "[A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness." 1. Being in a more disadvantageous position, a practitioner who applies for reinstatement must provide clear proof to establish that there has been a reformation of character: Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85]. 2. The ultimate issue, according to Re Mansoor, is the applicant's worthiness and reliability that the practitioner will act in accordance with the highest standards and responsibilities of the profession: "[The] ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession." 1. As helpfully set out in Ng v Health Care Complaints Commission [2018] NSWCATOD 105 ('Ng') at [29], the Tribunal may draw inferences from what has happened in the past and what led to the cancellation of their registration so as to assess the practitioner's worthiness and reliability for the future: "In making an assessment of the applicant's worthiness and reliability for the future, the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. At [50] in Scully referred to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future." That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant." 1. As noted in Scully v HCCC [2013] NSWMT 7 at [48], the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds". 2. However, as already noted, the purpose of the jurisdiction is not punishment or further punishment of a practitioner: Zepinic at [85]. Rather, the jurisdiction that is exercised is for the protection of the public. There is no public interest in denying forever the chance of redemption and rehabilitation to a former practitioner: Dawson v Law Society of NSW [1989] NSWCA 58 at per Kirby P at [17]. As expressed in a recent case, Mooney v Medical Council of NSW [2024] NSWCATOD 24 at [15]: "On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance." Background and history of the proceedings 1. The applicant had been formerly registered as a pharmacist under the National Law. He obtained a Bachelor's degree in Pharmacy from the University of Sydney in 1994 and was first registered as a pharmacist in 1999. 2. At the time of the conduct the subject of the complaints against him, Mr Bui had been practising as a pharmacist for around 17 years in hospital and community pharmacies. From 2013 to 2017, he was the pharmacist in charge of a busy pharmacy in St Mary's, Sydney. 3. In December 2016, another pharmacist, Jason Nguyen, reported to the Pharmaceutical Regulatory Unit of the NSW Ministry of Health ('the PRU') that he had been supplying medication without a prescription to Mr Bui in a car park at The Star Sydney Casino, in Pyrmont, Sydney. The PRU conducted an investigation and concluded that there was sufficient evidence to substantiate Mr Nguyen's allegation of selling drugs to Mr Bui. Ultimately, a differently constituted Tribunal found Mr Nguyen guilty of professional misconduct and cancelled his registration as a pharmacist: Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166. 4. The PRU also interviewed Mr Bui who vehemently denied the allegations made by Mr Nguyen. However, the PRU's investigation concluded there was sufficient evidence to substantiate an allegation that Mr Bui had breached the regulations governing the dispensing of Schedule 4 drugs (substances listed in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW)) ('the PTGR') which can only be supplied on prescription. 5. In June 2017, Mr Bui moved away from Sydney and bought a pharmacy business in Westbrook, a semi-rural town in Queensland, where he was the pharmacy proprietor (until his registration was cancelled in April 2022). 6. On 7 September 2017, following consideration of the PRU's report, the Pharmacy Council exercised its power under s 150(1)(b) of the National Law to impose a series of conditions on Mr Bui's registration, including that he does not possess, supply, dispense, administer or manufacture benzodiazepines. Mr Bui was required to surrender his benzodiazepine drug authority, and to either return to suppliers all benzodiazepines stocked at each pharmacy in which he had a financial interest or engage the services of a waste management contractor to destroy any supplies of that drug. 7. The Pharmacy Council referred the matters alleged against Mr Bui to the Commission. In turn, the Commission referred a complaint (comprising three individual complaints explained below) to the New South Wales Civil and Administrative Tribunal ('NCAT') about Mr Bui. 8. Whilst the Pharmacy Council subsequently removed the conditions restricting Mr Bui's practice (on 10 July 2019), the Commission's application for disciplinary findings and orders against him continued. 9. In Bui Stage One, the Tribunal made findings in relation to three individual complaints against Mr Bui and found him to be guilty of professional misconduct under s 139E of the National Law. 10. Subsequently, in Bui Stage Two, the Tribunal decided to cancel his registration as a pharmacist pursuant to s 149C(1) of the National Law. The Tribunal also imposed a non-review period of 18 months pursuant to s 149(C)(7) of the National Law. Mr Bui was also ordered to pay the Commission's costs, as agreed or assessed. Complaints against the applicant 1. Without re-hearing the original complaints, we determine whether it is appropriate to make a reinstatement order against the background of the findings made by the Tribunal in Bui Stage One, which are set out below. The matters addressed in Complaint One are referred to as "the Dispensing Complaint". The matters addressed in Complaints Two and Three are referred to as "the Casino Complaint". Complaint One ("the Dispensing Complaint") 1. Complaint One consisted of 13 particulars concerning patients known as Patient A, Patient B, Patient C, Patient D, Patient E, Patient F and Patient G. Complaint One alleged that Mr Bui had inappropriately dispensed "prescribed restricted substances" (Schedule 4D drugs) and "drugs of addiction" (Schedule 8 drugs) between September 2015 and January 2017 while working at Emerald Pharmacy, in St Mary's in New South Wales. 2. As already noted, Schedule 4 drugs can only be supplied on prescription. Likewise, Schedule 8 drugs, listed in Schedule 8 of the Poisons List as proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW), can only be supplied on prescription and are subject to tight restrictions because of their potential to cause addiction. Particular 1 of Complaint One 1. Particular 1 alleged that Mr Bui had failed to record the prescribing practitioner's details when dispensing medication on four occasions. Mr Bui denied Particular 1 however he admitted that he was ignorant of the legal requirement to enter a doctor's full name when dispensing prescription. 2. The Commission provided an expert's report prepared by pharmacist, Nina Benson, who was of the opinion that Mr Bui's conduct fell significantly below that required of a pharmacist and that it warranted strong criticism. 3. The Tribunal found that Mr Bui had dispensed restricted substances without recording the name and details of the prescribing doctor on two occasions. The Tribunal was not satisfied that the proven conduct over an eight-month period in a busy pharmacy dispensing around 100 prescriptions per day, amounted to unsatisfactory professional conduct. Particular 2 of Complaint One 1. Particular 2 alleged that between 22 March 2016 and 20 January 2017 Mr Bui failed on occasion to record the supply of pseudoephedrine contrary to clauses 24 and 25 of the PTGR. The policy rationale underlying the requirement to record details of the supply is to seek to prevent the conversion of pseudoephedrine-based products to illegal drugs including crystal meth, ice, meth and speed. 2. Mr Bui admitted that on occasion he supplied pseudoephedrine without recording that he had done so, as required by the PTGR. The Tribunal found that Particular 2 was established. The Tribunal also found that Mr Bui's lack of knowledge of the regulations governing the supply of pseudoephedrine fell significantly below the standard reasonably expected of a pharmacist of Mr Bui's level of training and experience. The Tribunal found the conduct amounted to unsatisfactory conduct. Particulars 3 and 4 of Complaint One 1. Particulars 3 and 4 alleged that Mr Bui had on 14 occasions concurrently dispensed Schedule 4D benzodiazepines, namely temazepam, diazepam and nitrazepam, to Patient A and that the quantity of nitrazepam dispensed in July 2015 ought to have raised concerns about Patient A's potential drug seeking behaviour and addiction. 2. Mr Bui conceded that, in dispensing a large number of benzodiazepines to Patient A over a lengthy period, he had deferred to the prescribing practitioner. 3. The Tribunal found that Mr Bui failed to exercise independent judgment and that the standard reasonably expected of a practitioner of Mr Bui's training and experience would be to recognise the potential that Patient A was at risk of becoming dependent on or addicted to benzodiazepines. In that circumstance, Mr Bui ought to have raised concerns with the prescribing doctor about the concurrent supply of benzodiazepines and the quantity supplied to the patient. The Tribunal found that the conduct amounted to unsatisfactory professional conduct. Particulars 5, 6 and 7 of Complaint One 1. Particulars 5, 6 and 7 alleged that Mr Bui had, over a period of around six months, dispensed excessive quantities of three benzodiazepines, namely temazepam, diazepam and nitrazepam, to Patient B in circumstances where Mr Bui failed to have regard to Patient B's dispensing history which revealed drug-seeking behaviour and addiction issues. 2. Mr Bui admitted each sub-particular but claimed that he had conferred with the prescribing practitioner about a strategy to wean Patient B off benzodiazepines. Mr Bui failed to record those discussions with the prescribing doctor. 3. The Tribunal found that the conduct the subject of Particulars 5, 6 and 7 demonstrated that the knowledge, skill and judgment possessed, and the care exercised by Mr Bui fell significantly below the relevant standard. Particulars 8 to 13 of Complaint One 1. Particulars 8 to 13 concerned Mr Bui's actions in dispensing benzodiazepines to Patients C, D, E, F and G while each was being prescribed methadone on the Opioid Substitution Program. Mr Bui admitted that the dispensing of benzodiazepines, namely oxazepam (to Patients C, F and G), clonazepam (to Patient D) and alprazolam (to Patient E) was inappropriate in circumstances where: 1. the pharmacy was also dispensing methadone to each patient; 2. the concurrent use of methadone and benzodiazepines carries an increased risk of sedation and overdose; 3. different practitioners were prescribing methadone and benzodiazepines, and Mr Bui failed to inform those practitioners of that fact; 4. Patient G was being prescribed methadone and oxazepam at the same time that he was also being prescribed large quantities of the benzodiazepine clonazepam. 1. Mr Bui argued that the Methadone Guidelines did not mandate that diazepam is the only benzodiazepine that can be prescribed to patients on the Opioid Substitution Program. 2. The Tribunal found that sub-particulars 8(c), 9(c), 10(c), 12 (c) and 13(d) were not proven but the balance of sub-particulars 8 to 13 inclusive were admitted or proven. The Tribunal pointed out that the essence of the complaint was the concurrent dispensing of benzodiazepines and methadone in circumstances where the concurrent use of those drugs carries an increased risk of sedation and overdose. The Tribunal further found that Mr Bui's dispensing of the subject benzodiazepines was not in accordance with recognised therapeutic standards and he had failed to inform prescribers that their patient was being prescribed benzodiazepines or methadone by another practitioner. 3. The Tribunal found that the proven/admitted conduct fell significantly below the relevant standard and amounted to unsatisfactory professional conduct. Complaint Two ("the Casino Complaint") 1. Complaint Two alleged that between July 2015 and September 2016, Mr Bui purchased and received Schedule 4 and Schedule 4D drugs from Mr Nguyen "outside the proper practice of pharmacy" in circumstances where there were no valid prescriptions, Mr Bui intended to distribute the purchased drugs to members of the public without valid prescription, and the supply occurred at the Star Sydney Casino, from the boot of Mr Nguyen's car. 2. Complaint Two alleged that the conduct particularised in that complaint amounted to "unsatisfactory professional conduct" within the meaning of s 139B(1)(i) of the National Law, i.e. "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". 3. Mr Bui denied Complaint 2. 4. The Tribunal was satisfied, on the balance of probabilities, that the conduct the subject of the complaint was proven. 5. The Tribunal found the conduct to be "improper or unethical conduct" relating to the practice of pharmacy. The Tribunal found that it amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. Complaint Three ("the Casino Complaint") 1. Complaint Three alleged that the conduct the subject of the dispensing complaint and the Casino complaint, individually and together, amounted to "professional misconduct" as defined by s 139E of the National Law. 2. The Tribunal found Complaint Three proven. The reinstatement hearing 1. The application for reinstatement hearing took place on 26 March 2024. The practitioner was unrepresented and had been granted leave to attend by audio visual link, in light of his residency in Queensland. Ms Kelly, Solicitor Advocate for the Commission, represented the respondent. 2. The Tribunal explained to the practitioner the nature and process of the hearing, and explained that he could seek an adjournment at any time, if needed, to compose any submissions that he may seek to make. 3. During Mr Bui's cross-examination, the Tribunal asked questions of the practitioner to ascertain his understanding of the relevant issues and these are discussed under the heading "Consideration" in these Reasons. The applicant's oral submissions 1. The applicant made short oral submissions in opening, highlighting some matters which we note are referred to in his letter dated 8 December 2023 accompanying his application for reinstatement, his letter to the Tribunal dated 8 February 2024 and his statement dated 13 February 2024. 2. Mr Bui asserted that he had actively addressed the issues raised by the previous Tribunal by undertaking professional courses. He submitted that he had done everything to remedy any deficiency in his practices and keep up to date by undertaking courses from the PSA and his own self-study. 3. The practitioner referred to the change in his circumstances after losing everything he had worked for and said that he wanted to make a professional contribution to the community by working as a pharmacist which he had hoped to do until he retired. The applicant's written submissions and evidence in support of the application Letter dated 8 December 2023 1. Mr Bui's letter dated 8 December 2023 argued that he had taken remedial action to rectify any deficiencies in his practice and asserted that he was no longer a risk to the public as evidenced by the Pharmacy Council's decision to lift restrictions on his licence in July 2019. 2. He explained his changed circumstances, having relocated from Sydney to a rural location in Queensland, and having run a pharmacy business that was valued by the community in Westbrook from 2017 until April 2022 when his registration was cancelled. 3. Mr Bui expressed his remorse for his past incidents and his understanding of the protective jurisdiction of the law. He implored the Tribunal to reinstate him so that he could be a good role model for his children, and make a valuable contribution to society in his practice of pharmacy. Letter dated 8 February 2024 1. Mr Bui's letter dated 8 February 2024 acknowledged that the deficiency in his past practice could pose a risk to the public and betray the trust that the community has about the profession. He said he was embarrassed and felt sorry for the inconvenience caused to his customers in Westbrook who had relied upon him for health care services. Mr Bui said he felt shame for his actions and asserted that he had been living with stress and anxiety for six years. 2. He reiterated that he had made every effort to take remedial action by undertaking courses offered by the PSA and undertaken independent study to rectify any deficiencies in his practice and keep himself up to date. He cited a number of the courses that he had undertaken, including of particular relevance, courses dealing with ethics, dispensing and counselling medication management. 3. Mr Bui asserted that he had equipped himself and become competent in pharmacy practice standards and ethical decision-making. 4. Mr Bui asserted that he had practised at Westbrook for 5 years without complaint and that his contribution to the community, especially throughout the pandemic, had been valued and recognised. Statement dated 13 February 2024 1. In his statement of 13 February 2024, Mr Bui again reiterated his previous statements that he had implemented recommendations from the Pharmacy Council and the PSA on courses of study, that his circumstances had changed and that he had done everything to remediate, so that he could return to the practice of pharmacy and make a professional contribution to the community. 2. Additionally, Mr Bui stated that he had quit gambling and had detached himself from any gaming venue since 2017. Applicant's oral evidence 1. In light of Mr Bui's statements on the effects of the proceedings over the previous 8 years upon his mental, physical and emotional health, Counsel for the respondent asked what the practitioner had done since the Bui Stage Two decision in April 2022 to address his mental health. 2. The practitioner acknowledged that he had consulted with his GP, Dr Haase, in October 2021, and that he had been prescribed an anti-depressant medication for a few months and had been referred to a counsellor for mental support. He recalled that he had seen a counsellor in Toowoomba, probably in 2021. 3. He said that he accepted responsibility for the issues himself and that he ascribed to the theory that he needed to be strong and "fix himself". His evidence was that he had engaged in exercise, spent time with his family, confided in a pharmacist friend and consulted with a pharmacy support group who understand the pressure on pharmacists and provide advice and help on mental issues. 4. Upon the suggestion that there is a difference between a support group which listens and therapeutic counselling, Mr Bui asserted that he had been unable to afford a counsellor and was struggling to pay legal fees in instalments. He had been the sole breadwinner and had not been able to afford private extra-curricular lessons for his children. He said that the effect of what he had done was a big deterrent and that he was now fit and healthy. 5. When questioned about his intentions, Mr Bui said that he would like to purchase another pharmacy business in a regional area which is around 35 minutes' drive from Brisbane, contingent upon the sale of his home. 6. Mr Bui gave evidence that he was currently working two jobs for around 38 hours per week as a delivery driver and also doing part-time packing of medications for patients (Webster packs). 7. Mr Bui asserted that he spends around 3 hours per week on professional development and had undertaken in excess of the requirements. He had focussed on communication and ethical dispensing in 2019 and was currently undertaking courses for 2023/2024. In order to address matters in the dispensing complaints against him, Mr Bui said he had done case studies, round table ethics, Q-script training and a course on abuse and dependence. 8. Counsel for the respondent criticised the reference dated 1 February 2024 of the practitioner's referees, John and Elizabeth Carter, who had provided a similar reference considered in the Bui Stage Two decision, for citing the Casino incident simply as "the incident". Mr Bui's evidence was that the Carters have known the background very well but he didn't ask them to go into more detail in their reference for these reinstatement proceedings. His evidence was that he had told Mr and Mrs Carter that he had met Mr Nguyen at the Casino, that Mr Nguyen had done something wrong and was found guilty, and that the Tribunal also found Mr Bui to be guilty of supplying without a script. 9. Mr Bui said that he recognises that he had a past unhealthy lifestyle, gambling at the Casino. He maintained his denial of guilt but said that he accepted the Tribunal's finding and wanted to show that today, he is a different person. 10. Mr Bui said that he had isolated himself and moved from New South Wales to regional Queensland, concentrated on work, and quit gambling. He regretted that he had wasted valuable time and placed his family in difficulty. He said that he was now 50 and didn't have much time left to serve the community. 11. Counsel for the respondent asked the practitioner about his risk of repetition, noting that the Tribunal was unable to assess his risk in repeating the conduct with respect to the "Casino issue" in the face of his denials. To this, Mr Bui asserted that he understands that buying without a prescription, legally and ethically, is wrong. 12. Mr Bui was asked about the relevance of the bank statement material he had provided in the reinstatement application since the reinstatement hearing does not look behind the findings in the disciplinary hearing. Mr Bui acknowledged that the Tribunal was not here to reconsider the order from the original hearing but said there had been misunderstanding about a number of transfers between his home loan and his personal account, that he had withdrawn cash on several occasions to play at the Casino (inferring they were not transfers to Nguyen) and that he had increased his home loan for gambling use. When asked about why he had not produced bank statements in Bui Stage Two, he said that he had not been able to access bank statements easily at that time. 13. When questioned about his gambling, Mr Bui acknowledged that he had a gambling "addiction" but subsequently adjusted his answer to distinguish a "gambling addiction" from a "gambling problem". He said that he always knew that gambling was not a good thing to do, but he had too much spare time on his hands and had friends working at the Casino. He said he was hanging out in the wrong place and then he started losing. Upon reflection, Mr Bui said that he "hated" gambling because of the damage to himself, his wasted time, and the impact upon his family. He said he had learned from his mistake and detached himself. He had excluded himself from the Casino for 5 years and risked a fine or gaol time if he did go to the Casino. Mr Bui insisted that because he can go without gambling, he does not have an "addiction". However, looking back, he conceded that he had previously had a problem with gambling. 14. Counsel for the respondent asked Mr Bui if he was successful in being reinstated, would he be amenable to practice under conditions. His response was that it would depend upon the period of the conditions. He said that he was planning to do locum work, and wanted to provide services in a country town but asserted that it is almost impossible to start up a pharmacy in an area where there are no medical services offered. 15. The Tribunal Panel asked Mr Bui about whether his current pharmacy employer was aware of the cancellation of his registration. His evidence was that he had said that he had experience in a pharmacy and had not sought to hide the cancellation of his registration, but his employer had not asked him about his history. It appears that his employer asked Mr Bui to dispense and label medicines and Mr Bui advised that he could not do that. Mr Bui said that he had only recently told that employer about his registration history and had been working under supervision. 16. It was suggested to Mr Bui, since he has been working for around 18 months with a pharmacy, that a reference may have been beneficial to his application and his employer could have been asked to appear before the Tribunal to lend weight to Mr Bui's assertions. Mr Bui said that he had not fully understood the process required for seeking reinstatement. He said that he had been a very responsible employee and did his job properly and that his employer trusted his performance and personality. He approached the matter of seeking to be re-registered as being required to demonstrate his clinical knowledge, skills, and professional behaviour. Again, he asserted that he had done everything he could, and would never forget the lesson he had learned. 17. Mr Bui was questioned about his knowledge and responsibility for dispensing medications to patients. A scenario was put to him where he was asked to imagine being employed as a pharmacist in a busy pharmacy in a community and he notices that a customer has been prescribed a number of boxes of Oxycodone. In the scenario put to him, he also notices scripts for Oxycodone and benzodiazepines from other pharmacies. Mr Bui was asked what he would do. The practitioner demonstrated his knowledge of the processes for identifying the patient and reviewing the patient's dispensing history. He said he would make sure that it was safe and suitable to supply the medication, and if necessary, speak with the patient's doctor, and use the Q-script system to enter the medication to ensure what had been supplied could be monitored. If he suspected pharmacy shopping, Mr Bui said that he would attempt to find out why different pharmacies were supplying the medications and if he thought the patient was at risk of harm, he would hold supply and discuss the circumstances with the prescribing doctor, and attempt to identify the best treatment for the patient. 18. When asked if the doctor was not taking accountability for the risk to the patient, Mr Bui said that he would inform the doctor that it was not in accordance with guidelines, and that he would not supply the medication and would annotate the script appropriately. 19. When further pressed on how he would manage the circumstances if he thought the patient was at risk of harm, Mr Bui said that he would ask the doctor to cancel the prescription. If the patient was at risk of overdosing, Mr Bui said he would contact other pharmacies where the patient may be receiving supply, with a view to cautioning them about the patient's possible addiction and dependence. He said he would advise the patient on the recommended dosage and caution the patient about the potential harm of exceeding that dosage. 20. When asked about how he would respond to a customer who may be addicted to opioids and may not be receptive to advice about overdosing, Mr Bui said that he would obtain information on organisations to help the patient with the addiction. He would advise the prescribing doctor of the patient's problem and refer the patient to a local hospital with a treatment unit to help. 21. The practitioner was asked by the Tribunal why he had not exempted himself from the Casino earlier than he did. Mr Bui did not explain the delay and simply stated that he knew he could quit himself but he wanted to further support his application for reinstatement by providing evidence of his self-exclusion. 22. At that point in his cross-examination, Mr Bui became quite emotional, saying that he had received counselling from his local priest on how to be a good person. Since selling the business in September 2022, he had been to regular confession and services. He said he was human, had learned from his mistake, had reformed and was determined not to repeat his offending conduct again. Closing submissions Applicant's closing submissions 1. The practitioner's closing submissions summarised generally the matters addressed in his correspondence, asserting that he: 1. had consulted with the Pharmacy Council, the PSA and a pharmacy support group and had taken remedial action to maintain his professional competencies through various courses as set out in his filed material; 2. had reflected upon, and truly regretted his conduct 8 years ago, and that the consequences of his action were a massive deterrent; 3. had reformed himself to be a fit and proper person to hold registration, having quit gambling altogether and made a big sacrifice to relocate with his family to a rural town; 4. had not re-offended; 5. did not present a risk to the public as demonstrated by his 5 years of practice at Westbrook from 2017 to 2022 where he helped set up a medical hub and received many acknowledgments for his contribution to the community; 6. had practised in a legal and professional manner at Westbrook, risking infection to himself and his family during the pandemic, and providing financial support and donations to help overseas students during that time; 7. understands that he must practice in accordance with the National Law and would like to do locum work in a regional area to contribute to a community by practising his profession. Respondent's closing submissions 1. Adopting a neutral position, Counsel for the respondent summarised the key relevant principles, namely: 1. the paramount consideration under s 3 of the National Law is to ensure the health and safety of the pubic, 2. the onus on the applicant to demonstrate that he presents no risk to the safety of the public on the balance of probabilities (subject to the Briginshaw civil standard) and the reputation of the profession; 3. to be given a 'second chance' an applicant must provide clear proof of reformation of character, as well as worthiness and reliability for the future; 4. whether it is appropriate to make a reinstatement order will depend upon whether the applicant is a fit and proper person; 5. Mr Bui had provided only limited new evidence such as the reference from Mr Truong, a statutory declaration from his wife, a reference from the Carters and evidence of his self-exclusion from the Casino, but no evidence of his participation in a pharmacy support group; 6. on the issue of Mr Bui's gambling history, the Commission drew attention to the practitioner's continued denial of the Casino complaint in circumstances where he conceded he had a problem, though not an addiction. 1. The respondent submitted that, if reinstated, the risk of Mr Bui repeating his conduct could be ameliorated with conditions on his registration. Consideration 1. Bearing in mind the paramount consideration being the health and safety of the public, our assessment of the appropriateness of the cancellation order and the making of a reinstatement order depends upon whether Mr Bui is a "suitable person" to hold registration and whether he is a "fit and proper person" for general registration. 2. The starting point for deciding whether to make a reinstatement order is to consider the findings of the previous Tribunal decision and determine whether the shortcomings identified have been addressed and overcome: Bahramy v Medical Council of NSW [2017] NSWCATOD 146 at [53]. 3. In determining whether those shortcomings have been addressed, we look at whether he has gained insight into the matters that led to his being removed from the register, what changes have been made to his circumstances, and whether he is now a fit and proper person to be registered. We consider whether Mr Bui has proved on the balance of probability that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the health and safety of the public or their confidence in the profession of pharmacy. 4. In assessing Mr Bui's worthiness and reliability to act in accordance with the high standards and responsibilities of the profession for the future, we have considered his character. 5. Character evidence is admissible because it relates to the probability of a person re-offending: Ng at [45]. 6. There are two key areas of concern: 1. First, with respect to the Dispensing Complaints, does the Tribunal consider Mr Bui presents a risk to the health and safety of the public? Has Mr Bui demonstrated he is technically competent in his understanding of his professional responsibilities and the professional and ethical standards of the practice of pharmacy? Has Mr Bui demonstrated his understanding of the compliance requirements relating to restricted substances? 2. Second, with respect to the Casino Complaint, the ultimate issue is a question of Mr Bui's worthiness and reliability for the future, such that the Tribunal can be satisfied he has reformed and is a person who will act will act in accordance with the high standards and responsibilities of the profession. It is important to note that the Tribunal in Bui Stage Two at para [27] stated: "In circumstances where there is no apparent explanation for Mr Bui's conduct in respect of the Casino complaint, we could not be satisfied that that conduct will not be repeated or that conditions could be formulated to mitigate that risk." Evidence to consider re the Dispensing Complaint 1. The practitioner demonstrated his knowledge when answering questions from the Tribunal concerning the requisite standards of pharmacy practice and the exercise of his professional judgment to query prescriptions with prescribing practitioners as appropriate. His answer demonstrated his understanding of the required steps to achieve compliance with the law including properly recording the names and details of doctors when dispensing Schedule 4D and Schedule 8 drugs; properly recording the supply of pseudoephedrine; understanding the process of staged supply to assist weaning patients off drugs; and documenting procedures to manage and record issues. 2. We also take into account the following matters which are favourable to Mr Bui's application: 1. the commitment that he has shown to his continuing professional education and training, in particular, undertaking PSA courses after having his registration cancelled. These relevantly include: 1. Communication and collaboration, professionalism and ethics (March 2023); 2. Addiction and substance abuse (May 2023); 3. Dispensing and counselling (Cannabis drug interactions; dry mouth management; disposal of Schedule 8 medicines) (May 2023, July 2023, September 2023). 1. his frank admissions about previous failings, his contrition and apparently genuine remorse; 2. his continued professional membership of the PSA and subscriptions to various online resources to maintain and update his knowledge and practice; 3. the removal (on 10 July 2019) of conditions previously imposed on his registration by the Pharmacy Council under s 150 of the National Law that prohibited his possession, supply, dispensing, administration or manufacture of benzodiazepines, although we note this step had already been taken prior to the decision in Bui Stage Two. Evidence to consider re the Casino Complaint 1. The question of Mr Bui's character is relevant to the Tribunal's assessment of his suitability to practice in an ethical manner and the likelihood of him reoffending. 2. However, the assessment of a person's character is not without complexity. This was discussed in Ng at [43]-[46]: "[43] The assessment of character is central to the current proceedings. The Commission argues that Dr Ng must demonstrate a shift of character". This implies that a person's character lies somewhere on a spectrum or a line on a graph and that by some form of therapy, psychological or psychiatric treatment or personal resolve that character can be shunted back up the line or spectrum to the more virtuous end. [44] We are doubtful that such characterisation is helpful in assessing whether a person has a "good character". This is a simplistic, mechanical approach to human psychology that is inconsistent with the realities of human experience and behaviour. The biblical story of the self-righteous being told "let he who is without sin cast the first stone" is a classic account of the fact that human beings are complex and cannot be graded in black and white terms as the metaphor of a character shift implies. [45] Character evidence is admissible because it relates to the probability of a person either committing an act alleged against them or the future risk of re-offending. The remarks of Walsh JA in Ex parte Tziniolios; Re Medical Practitioners Act quoted above appear to suggest that if a person has been proven to be of bad character, if may be difficult for him (or her) to reform. But they do not explain what bad character is. It is self-evident that a momentary or single act of deviance from an otherwise unblemished course of conduct is much less indicative of ingrained "bad character" and an overall lack of fitness to practise a profession than a course of unethical conduct. We have no doubt that if a course of confirmed unethical behaviour is proven, it will be difficult for a person to prove that he or she is a person who is "fit and proper" for reinstatement." 1. An additional complexity in this case is that Mr Bui has denied the Casino complaint and maintained his denial throughout these proceedings. By continuing to deny the Casino complaint, it could be argued that Mr Bui has limited insight into that conduct as being unethical and a person with no insight remains unsuitable and unfit to be registered. 2. There is no report from a counsellor to demonstrate that he has reflected upon the conduct and whether he has any insights into why such conduct would not be regarded as ethical practice of pharmacy. Mr Bui's evidence is that he exercised strength of character and personal resolve to reform himself without the need for therapeutic counselling (but he found the pharmacy support group to be helpful). 3. We do, however, regard Mr Bui's decision to ban himself from casinos in Queensland as objective evidence that he has reflected on the conduct the subject of the Casino Complaint. 4. The Exclusion Order dated 27 February 2024 issued by The Star Entertainment QLD Limited under s 79 of the Casino Control Act 1992 was issued in response to Mr Bui initiating sanctions against himself by providing a self-exclusion notice on 26 February 2024. Under the five year Exclusion Order, Mr Bui is prohibited from entering or remaining in The Star Gold Coast, Treasury Brisbane and The Star Brisbane Casinos. He is prohibited from taking part in keno gaming and from taking part in approved wagering at any of those named casinos. 5. We regard Mr Bui's self-exclusion as a demonstration of his sincerity and determination to avoid gambling in the future, a matter that could be regarded as showing insight as well as reformation of any character flaw that may have been present due to his previous gambling behaviour. 6. Further, relying upon the decision in Zaidi v Health Care Complaints Commission [1998] 44 NSWLR 82, the fact that Mr Bui does not make an admission of the Casino complaint is not determinative of the key issue. It would be unjust to require Mr Bui to lie in order to seek to demonstrate that he has insight. We do have his acceptance of the Tribunal's findings and his express acknowledgment that the supply of drugs without prescriptions is unlawful and can harm the public. 7. The Tribunal in Ng at [46] also considered the concept of assessing the probability of a person's future offending behaviour having regard to whether they have engaged in a single act of misconduct or repeated breaches: "[46] On the other hand, a momentary or single act of misconduct should be seen against a person's whole history as well as the person's reputation as attested to by those who know the person. In applying the protective principle, the Tribunal is obliged to consider probabilities. It is more probable that a person who repeatedly misbehaves or breaches ethical codes will do so again than a person who does so only once in a long history of professional practice. The authorities cited above all acknowledge the general understanding that human beings can change their behaviour and learn from experience." 1. Mr Bui has provided only a limited number of character references and none of them articulate in any detail the Casino complaint. A reference from Mr Bui's current employer (who is a practising pharmacist) to attest to his trust in the practitioner may have been helpful in assessing Mr Bui's good character. 2. There are a number of matters favourable to Mr Bui that we take into account: 1. while he continues to deny the Casino complaint, Mr Bui accepts the Tribunal's findings. In addition, he accepts that the conduct found proven by the Tribunal is of a serious nature, that the supply of medications without a prescription is unlawful and unethical, and can harm the public; 2. the change in his circumstances by relocating to a semi-rural town in Queensland and having remained there since 2017, demonstrating his detachment from his previous lifestyle; 3. his assertion that he has quit gambling and has not visited any gaming venue since June 2017; 4. the practitioner is now 50, a family man with children aged 4 and 10, and has expressed a strong desire to be a good role model for his children and to make a positive contribution to the community in the practice of pharmacy with the time remaining in his working life; 5. he has no criminal conviction; 6. he has suffered emotionally, physically, mentally and financially, and has lived with anxiety and stress for the past 6 or 7 years which we regard as a strong deterrent and protective factor against any repeated offending conduct; 7. he has consistently expressed remorse and deep shame, and has acknowledged that he betrayed the trust of the public in the pharmacy profession; 8. the personal reference from John and Elizabeth Carter who attest to Mr Bui as being a person of good character and refer to Mr Bui's highly regarded reputation in the community. We only give a small amount of weight to this reference since it refers to "the incident" but says nothing further of the circumstances that led to the cancellation of Mr Bui's registration; 9. the personal reference from Dr Lindsay Haase which attests to Mr Bui being sincere, responsible and family focussed and a person who strives to provide for his family and serve his community. The reference also refers to Mr Bui's "safe provision of medications to his many patients". The Tribunal relies on this evidence to the extent that it relates to Mr Bui's sincerity and good character as assessed by a member of the medical profession, and we give the reference a moderate amount of weight; 10. the personal reference from Wayne Truong who states that he has observed Mr Bui undergo significant personal growth and introspection. Mr Truong also states that Mr Bui has "sought out resources and support to address the root causes of the issues leading to the suspension". The reference states that Mr Truong is "fully aware of his situation that had led to his suspension" and also refers to "the issue" that occurred 8 years ago, but otherwise does not demonstrate his detailed knowledge of the Casino complaint details. We accordingly only place a moderate amount of weight on Mr Truong's assessment of the practitioner's character. 11. the statutory declaration from Mr Bui's wife attests to her husband's remedial actions and desire to become a better person, but can only be given a small amount of weight due to their close relationship. Conclusion 1. We accept that Mr Bui has made a significant shift in his personal circumstances to position himself for his anticipated re-registration as a pharmacist at considerable sacrifice to himself and his family, and has sought to remedy previously identified shortcomings. 2. We are satisfied that the risk of the applicant reoffending is low for the following reasons: 1. he has insight into the circumstances of his offending with respect to the Dispensing Complaint, has sought to rectify any deficiencies in his education or practice with appropriate recommended courses, and demonstrated in his oral evidence that he has the skills and competencies to practice ethically and safely; 2. he has shown insight into the Tribunal's concerns regarding the Casino Complaint as evidenced by his acceptance of the findings, his statements about the unlawfulness and harm to the public when medications are supplied without a prescription, and the Exclusion Order; 3. his remorse appears to be genuine for the inconvenience caused to the community at Westbrook and the distress caused to his patients and his family, and the practitioner's focus on remediating his damaged financial position does not detract from his expressions of regret for the harm he has caused by his conduct; 4. the deterrent effect of his de-registration has had a strong aversive effect upon him and this will be a powerful protective factor against any possible reoffending. 1. We are satisfied that the cancellation order is no longer appropriate and that the conduct the subject of the cancellation decision is unlikely to recur. 2. We are satisfied that Mr Bui is "suitably trained and qualified to practise pharmacy in a competent and ethical manner" and is a "fit and proper person" to hold registration. We consider Mr Bui to be highly motivated, as a result of his disciplinary experience, to promote confidence in the professionalism of pharmacy. 3. In our view, Mr Bui has proven on the balance of probabilities that he can be trusted to practise in an honest and ethical manner in the future and we are satisfied that he is a fit and proper person to have his registration reinstated. Conditions to be imposed on the practitioner's registration 1. Nonetheless, given the paramountcy of the health and safety of the public and the length of time since Mr Bui last practised without restriction, we have decided to take a cautious approach and impose conditions upon Mr Bui's licence. The imposition of conditions for a period of 12 months will serve to provide practical support for his confident return to practice. 2. During the hearing, the practitioner was asked whether he would be amenable to conditions being imposed upon his registration if the Tribunal was minded to make a reinstatement order. 3. The practitioner indicated that he would be prepared to accept reasonable conditions if the Tribunal made a reinstatement order, but said that it would depend upon the period of time that the conditions would be operative. 4. In closing submissions, the Commission stated that it adopted a neutral position to the application and would consider the imposition of reasonable conditions upon the practitioner's registration if the Tribunal was minded to make a reinstatement order. 5. The Tribunal made orders, as already noted, requiring the parties to make submissions as to any conditions considered appropriate if the Tribunal reinstated the practitioner. 6. The Commission's first proposed conditions included mentoring requirements and were proposed to be imposed for two years. 7. The Commission's revised proposed conditions removed the requirements for mentoring and imposed conditions for one year. 8. The applicant practitioner rejected both the initial and revised conditions, arguing that the imposition of restrictions would serve to further punish him unnecessarily. We do not find those submissions persuasive and are obliged to ensure the paramount consideration under the National Law. 9. The Tribunal considers the respondent's revised conditions are reasonable in the circumstances, with two exceptions. First, we have removed a reference to AHPRA having access to information from Medicare or private health insurers and/or practice billing data which may have relevance to a medical practitioner but no relevance to the practice of pharmacy. Second, we have amended the Commission's proposed fifth condition so that it is capable of practical implementation within 21 days of the practitioner being employed as a pharmacist, or contracted to provide services as a pharmacist. 10. In our view the conditions set out in these Reasons provide comfort in protecting the health and safety of the public in the twelve months that the practitioner eases himself into practice. The conditions will allow the practitioner to apply his learnings in practice, with the support of a fellow senior manager. Costs 1. The Commission sought an order that the practitioner pay the costs of these proceedings. Mr Bui asked the Tribunal to order that each party pay its own costs, relying upon his assertion that he has financial limitations. 2. Appearing as contradictor, the Commission's role is to assist the Tribunal by ensuring that all relevant material is disclosed so as to enable the Tribunal to determine all relevant facts in issue pursuant to s 38(6) of the CAT Act. 3. In Ake v Health Care Complaints Commission [2019] NSWCATOD 165 at [46-49], the Tribunal set out the principles to be applied to determine the costs of proceedings for the reinstatement of a practitioner: "[46] In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. [47] Whether the discretion to award costs should be exercised in favour of the Commission raises the issue of whether the so-called compensatory principle - that without some disentitling conduct a successful party is generally entitled to recover their costs - can and should be applied where the Tribunal makes a reinstatement order under s 163B of the National Law. [48] This issue was addressed in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (Ameisen). There, the Tribunal considered it a misnomer to describe an applicant who is reinstated following an inquiry to review a "relevant order" as having been "successful". Reasoning that this characterisation "misunderstands the nature of the respondent's involvement in the proceedings", the Tribunal pointed out at [90] that reinstatement proceedings "arise because of the prior misconduct of the applicant [practitioner], and can be seen as ancillary [to the original proceedings which resulted in the cancellation of the practitioner's registration]". The Tribunal ordered Dr Ameisen to pay the respondent Council's costs, notwithstanding its decision that he be reinstated to the register of medical practitioners. [49] This approach was followed in Ristevski v Medical Council of NSW [2016] NSWCATOD 18. There, the tribunal concluded at [87]: "Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused." " 1. In considering a number of cases where the applicant practitioner was reinstated but was not ordered to pay the costs of the respondent, the Tribunal had been critical of aspects of the respondent's participation in the inquiry. As summarised in Ake at [50]: "[50] In Ristevski the Tribunal examined a number of cases where on review of the relevant order, the applicant practitioner was reinstated but not ordered to pay the costs of the respondent Council or Commission: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Health Care Complaints Commission [2015] NSWCATOD 35. The Tribunal concluded that each case had "exceptional features" and the relevant Tribunal had been critical of aspects of the respondent's participation in the inquiry: Ristevski at [74], [78], [82] and [88]." 1. In reinstatement proceedings, the respondent's role as contradictor has been described as a "public interest respondent", as explained in Ake at [51]: "[51] We agree with the view expressed by the Tribunal in Ristevski at [70]-[71] that in conducting a review of a relevant order under s 163B of the National Law, there is a public interest in the Tribunal being assisted by the relevant practitioner Council or the Commission. Without a respondent in this class of matters, there is a risk that the Tribunal might only have available the self-serving evidence adduced by the applicant practitioner. The involvement of, to use the term coined in Ristevski, a "public interest respondent" in review proceedings, assists the Tribunal in discharging its obligation to ensure that all relevant material is disclosed so as to enable it to determine all relevant facts in issue: s 38(6)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)." 1. In a more recent case, Blair v HCCC [2023] NSWCATOD 35 ('Blair'), a nurse's application to be reinstated was not successful and the practitioner sought an order that each party pay its own costs, arguing that a costs order was pointless because he had no assets. The Tribunal explained at [83] the rationale behind the recognition of the Commission's role in proceedings of this nature, with reference to Ristevski: "… A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused." 1. The Tribunal concluded in Blair at [85] that the Commission had proceeded in an appropriate way and ordered costs against the practitioner. 2. In an earlier case involving a pharmacist, Frayar v Health Care Complaints Commission [2015] NSWCATOD 117, the application for re-registration was dismissed. The Tribunal noted at [106] the role of a contradictor in proceedings of this nature and ordered the applicant to pay the Commission's costs: "It was necessary that the Respondent act as a contradictor in these proceedings. Despite the protestations of the Applicant that he is impecunious, that is no good reason why a costs order should not be made in favour of the Respondent. We order that the Applicant pay the costs of the Respondent incurred in respect of these proceedings." 1. In another case, Holbrook v HCCC [2014] NSWCATOD 86 at [142], a psychologist's application for reinstatement was not successful. His submission that each party bear its own costs rested solely on his asserted financial difficulties but the Tribunal was not persuaded to depart from the usual course of ordering the practitioner to pay the Commission's costs. 2. In the case before us, the Commission has proceeded in an appropriate way. There are no "exceptional features" such as those cited in Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43, Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 and Roberts v Health Care Complaints Commission [2015] NSWCATOD 35, that would warrant a departure from the principle that the applicant should pay the costs of the respondent in these reinstatement proceedings. We find no reason to be critical of aspects of the respondent's participation in the inquiry. The Commission properly drew to the attention of the Tribunal to material relevant to the proper consideration of the applicant's application. 3. We are thus satisfied that it is appropriate that the practitioner be ordered to pay the Commission's costs, and do so accordingly. ORDERS 1. We make the following orders: 1. The Tribunal makes a reinstatement order under section 163B(1)(c) of the Health Practitioner Regulation National Law in respect of the practitioner. 2. Pursuant to s 163B(4) of the Health Practitioner Regulation National Law, the following conditions are imposed on the practitioner's registration: 1. The practitioner must not work as a pharmacist in charge for a minimum period of 12 months. 2. The practitioner must not work as the sole pharmacist on duty for a minimum period of 12 months. 3. The practitioner must not be the proprietor of a pharmacy for a minimum period of 12 months. 4. Within 21 days of the notice of imposition of these conditions, the practitioner must provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may: 1. seek reports from the Senior Practice Manager/Senior Manager/Senior Partner/proprietor/owner/partner in ownership pharmacist/other as appropriate (the senior person) at each place of practice on at least a quarterly basis or as otherwise required; 2. request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent. 1. Within 21 days of employment at any pharmacy where the practitioner is employed as a pharmacist or is contracted to provide services as a pharmacist, the practitioner must provide to AHPRA acknowledgment from the senior person at each place of practice: 1. on the approved form (HPS7) that they are aware AHPRA will seek reports from them; 2. that they have sighted a copy of the decision of the Tribunal which cancelled the practitioner's registration (Health Care Complaints Commission v Bui (No.2) [2022] NSWATOD 45 and a copy of these Reasons for Decision which impose these conditions. 1. All costs associated with compliance with the conditions on his registration are at the practitioner's own expense. 2. Conditions a-f above are to be reviewed 12 months following the date of imposition. 1. The applicant is to pay the costs of the respondent 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 30 July 2024 - Removed full name of member 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: 30 July 2024