Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Smith v Health Care Complaints Commission [2014] NSWCATOD 129 Hearing dates: Hearing on the papers Decision date: 05 November 2014 Jurisdiction: Occupational Division Before: P Dwyer, Principal Member Decision: 1. Given its interpretation of relevant statutory provisions, the Tribunal declines to appoint the Pharmacy Council of New South Wales as an Appropriate Review Body as the Orders, the subject of the application, are not reviewable under Division 8 of Part 8 of the National Law. 2. The Applicant Practitioner shall within twenty-one (21) days of the date of these orders, notify the Registrar, Occupational Division, NCAT, in writing, if he wishes to withdraw his substantive application filed on 3 June 2014. 3. The Registrar is requested to provide a copy of these reasons, to the Pharmacy Council of New South Wales. 4. In the event the Applicant Practitioner seeks to pursue his substantive application, liberty to re-list the matter before Principal Member Dwyer, for directions, on three (3) days' written notice to the Tribunal and to the Health Care Complaints Commission. 5. The Pharmacy Council may apply to be joined as a party to the proceedings or to be heard at the substantive hearing. 6. No order made as to costs. Catchwords: ADMINISTRATIVE LAW-Civil and Administrative Tribunal Act (2013) NSW-Review of Orders-Pharmacy Tribunal of New South Wales-Orders of Reprimand; Suspension of registration; Condition imposed-Orders completed-Appropriate Review Body-Part 8, Division 8, Health Practitioner Regulation National Law NSW-Australian Health Practitioner Regulation Agency (AHPRA)-National Board-Pharmacy Board of Australia-Public National Register-Register of Pharmacists-Information to be recorded in Register-publicly available information-Removal of information from Register-relevant statutory provisions; Legislation Cited: Health Practitioner Regulation National Law (NSW) (2009); Civil and Administrative Tribunal Act 2013 Cases Cited: Crook v HCCC (No 2) NSWCATOD 91 Category: Principal judgment Parties: Douglas Charles Leslie Smith (Applicant) Health Care Complaints Commission (Respondent) Representation: D Smith (Applicant in person) File Number(s): 1420209 REASONS FOR DECISION Introduction 1On 3 June 2014, the Applicant Pharmacist ("the Practitioner") filed an application ("the First Application") in the Tribunal Registry, requesting "...removal of the Orders from AHPRA's public register...." (relevant to his registration) stating the grounds for the application as "...I satisfactorily completed the Orders imposed on my registration by the Pharmacy Tribunal of NSW on 8 December 2008 ". A letter from the Legal Officer of the Pharmacy Council of New South Wales ("the Council") dated 26 July 2012 ("Council's letter") was attached to this application; advising the Practitioner that the Orders the (former) Pharmacy Tribunal of NSW ("the Pharmacy Tribunal") imposed on his registration on 8 December 2010 "...are considered satisfactorily completed..." (Emphasis added). The letter continued: "If you wish for the Orders to be lifted from AHPRA's public register, an application for review of the conditions must be made to the Tribunal. To make this application, lodge it with the Executive Officer of the Council, who will then refer your application to the Tribunal (sections 163(1)(c) and 163(3) of... [the National Law]..." (Emphasis added] 2"AHPRA" is the abbreviation for the Australian Health Practitioners Regulation Agency, the "National Agency" established by section 23 of the Health Practitioner Regulation National Law ("the National Law"). 3On 25 July 2014 the Tribunal List Manager, the Hon. Acting Judge Boland ("the List Manager") conducted a Directions Hearing in this matter in which the Practitioner participated by telephone; and Ms F. Westwood appeared for the Respondent Commission ("the Commission"). 4The Practitioner was given leave to make an application to the Tribunal under section 163 (1) (a1) of the National Law, "...to seek removal of conditions on his registration imposed by the Pharmacy Tribunal" by appointment of the Council as the appropriate review body ("ARB") [Emphasis added]. The Practitioner was directed to file an application seeking an Order that the Pharmacy Council of New South Wales be appointed as the ARB-rather than this Tribunal. The Practitioner was further directed to serve a copy of any such application for review, on the Council and the Commission. 5The List Manager noted that the Commission did not oppose the Council as the appropriate review body [defined by section 163(1) National Law]; and that it did not wish to be heard in respect of the above application; nor did it seek costs. The List Manager indicated that if any application was filed, the Tribunal may deal with it "on the papers" that is, without the necessity for a formal hearing. The Registrar was requested to provide the Council with a copy of the orders and directions made; and it was noted that the Council had the right to re-list the matter if it wished to be joined in these proceedings. The matter was adjourned to be heard "on the papers" after the filing of any application. 6Following the List Manager's Directions Hearing on 25 July 2014 the Practitioner filed a further General Application Form ("the Second Application") received by the Tribunal Registry on 30 July 2014 making application pursuant to section 163 (1) (a1) of the National Law and requesting: "...that the Pharmacy Council be appointed as the appropriate review body ... [and] that the Orders... [imposed by the Pharmacy Tribunal on 8 December 2010]...be removed from AHPRA's public register." [Emphasis added] 7By letter dated 19 August 2014, the Council advised the Tribunal it did not wish "... to be joined to the proceedings nor make any submissions in relation to the application to have the Council appointed as the appropriate review body." 8The Tribunal confines its attention to the first order sought in the Second Application-that the Council be appointed as the ARB. If made, this would mean that the Council would conduct an inquiry for the purpose of the second order-the Practitioner's request for removal of the (Pharmacy Tribunal's) Orders from "...AHPRA's Public Register." It is necessary to consider the relevant statutory provisions in Division 8 of the National Law. Review-Part 8, Division 8, National Law 9The purpose of a Part 8 ("Health, performance and conduct"), Division 8 review, is to determine the appropriateness-at the time of any such review-of an order made by a relevant "decision-making entity"-in this case, orders made by the Pharmacy Tribunal on 8 December 2010; it is not to review the decision to make the order or any findings made in connection with the making of such order [Section163C, National Law]. 10Section 163B of the National Law requires the ARB to conduct an inquiry; and provides the powers it may exercise consequent upon an inquiry; relevantly to the First Application-the making of an order "...ending or shortening the period of the suspension concerned" [Section (163B (b)]; and the making of an order "...altering or removing the conditions to which the person's registration is subject including by imposing new conditions..." [Section 163B(d)] (Emphases added). 11The first order the Pharmacy Tribunal made, was a reprimand; the second, a six months suspension of registration; and the third, a condition-to commence upon the expiration of the above period of suspension-requiring inspection of the Practitioner's claims for payment for medications he had supplied under the Commonwealth Pharmaceutical Benefits Scheme ("PBS"), prior to submitting them to Medicare Australia; with such inspection to be undertaken by a pharmacist approved by the Council, at the times it nominated. "Review" is not defined in the National law; but the Tribunal applies an ordinary meaning- "revision". 12Considering the terms of the Pharmacy Tribunal's orders described above and the relevant statutory provisions; and adopting a purposive approach to interpretation [C/F sections 3 (2) and 3A National Law; and section 36 (2) (b) of the Civil & Administrative Tribunal Act 2013], it seems that a review under Division 8 of the National Law cannot now, be conducted to determine their appropriateness at the time of any proposed future, review. 13The six months suspension period (Order 2) "...commencing on the seventh day after..." 8 December 2010, expired in June 2011 and the Practitioner's registration was thereby revived; and has continued, in the absence of any indication to the contrary. There is now, no order of suspension amenable to a determination as to "appropriateness" or otherwise; and it follows, no period of suspension which can be ended or shortened; 14As noted earlier, the inspection regime instituted by Order 3 was with the other orders, also satisfactorily completed as advised in the Council's letter; the final inspection being completed on 16 June 2012. There is no condition to which the Practitioner's registration is now subject; it has been fulfilled by satisfactory completion of the relevant inspection regime (C/F Council's Letter). 15Noting the statutory provisions governing Division 8 review; and the above observations that there is in effect, no order extant, amenable to an inquiry to determine its present appropriateness, a 'threshold' question is apparent-can the Council or indeed the Tribunal, be appointed as an ARB in such circumstances? Public Register 16AHPRA was established by section 23 of the National law which includes its functions as a National Agency. One such function is found in section 25(f): "...in conjunction with the National Boards, to keep up-to-date and publicly available national registers of registered health practitioners for each health profession." (Emphasis added). Pharmacy is included in section 5, as a health profession. 17The "fact" that a practitioner has been reprimanded must be included in the National Register: section 225(j). 18The details of any condition imposed on a practitioner must be included in the National Register [section 225 (k)] unless section 226(1) applies, relevant to circumstances where a National Board may exercise its discretion not to include-or to remove-information about a condition if a practitioner has an impairment and it is necessary to protect the practitioner's privacy; and if there is no overriding public interest for the condition to be recorded. A further discretion is available to a National Board to allow "...information relating to a registered health practitioner..." not to be recorded if requested by the practitioner; and the Board reasonably believes inclusion of the information "...would present a serious risk to the health or safety of the practitioner": section 226(2). 19The fact of a practitioner's suspension of registration must be recorded in the National Register together with if relevant, the period during which the suspension applies: section 226(l). 20It is therefore necessary to consider in the statutory context, the three relevant orders the Pharmacy Tribunal made against the Practitioner on 8 December 2010 mindful of the terms of his application to the Tribunal seeking an order for their removal. Order 1-Reprimand 21 The First order-a reprimand-was made on 8 December 2010 and, it is assumed in the absence of anything to the contrary, it remains on the National Register defined as "...the Register kept by a National Board under section 222..." of the National Law. If a practitioner has been reprimanded, section 225(j) requires this to be recorded as the "...fact that the practitioner has been reprimanded."(Emphasis added). 22Section 5 of the National Law defines "National Register" to mean "...the Register kept by a National Board under section 222" which describes it as a "...public national register..." which must be kept "...in conjunction with the National Agency." (Emphasis added) [Section 222]. AHPRA is the National Agency. The Pharmacy Tribunal's order of reprimand was, when delivered, accompanied by a single page, full text of its reprimand ("Attachment A" to the Order). 23There is nothing before this Tribunal to indicate that the National Board-relevantly, the Pharmacy Board of Australia-("PBA") has exercised its statutory discretion to decide to remove information from the Register of Pharmacists (the National Register of the PBA) that the Practitioner has been reprimanded; which it can do "...if it considers that it is no longer necessary or appropriate for the information to be recorded on the Register... [relevantly, of Pharmacists]..." [Section 226 (3) National Law]. The PBA administers the Register of Pharmacists. 24An order of reprimand is not a "relevant order " amenable to Division 8 Review [C/F section 163A(4)] which is limited to orders of suspension; cancellation of or disqualification from, registration; and orders imposing conditions. Given that it is the fact that a practitioner has been reprimanded that must be included in the Register, it may be, that the text of the relevant reprimand ("Attachment A"-separate from the Order) mentioned above, is not included in the "fact" recorded. It would also seem, given the statutory mechanism, that the Practitioner may be able to approach the PBA to seek removal of the reprimand information from its Register of Pharmacists, under section 226(3) noted above. Order 2-Suspension of registration 25As noted earlier, suspension is a "relevant order" amenable to Division 8 Review [section163A (4)]. The relevant period of the Practitioner's suspension expired in June 2011; and, as noted in the Council's letter above, the orders were satisfactorily completed. 26Adopting and applying the words of Boland ADCJ (Tribunal List Manager) in Crook v HCCC (No 2) [2014] NSWCATOD 91 at [12], to the present application-that "...it is strongly arguable that it is a nonsense to review the order concerned, because it has no force or effect, having been spent..." it is the Tribunal's view, given satisfactory completion of the order of suspension of the Practitioner's registration, that it is not amenable to Division 8 review. 27Section 225(l) requires the fact of a suspension of registration together with any specified period in which it is to operate, recorded in the public National Register. Order 3-Condition imposed on registration 28Section 225(k) of the National Law requires the details of any condition imposed on a practitioner's registration, to be included in a public National Register such as the Register of Pharmacists; unless section 226 (1) applies, providing that the fact (only) that a condition has been imposed, is to be recorded should there be any issues relevant to a practitioner's impairment or health and safety; 29 Subdivision 2 of Part 7 of the National Law, includes provisions for review of a condition on a practitioner's registration; upon the practitioner's application for changing or removing the condition [section 125]; or changing a condition upon the National Board's initiative [section 126]; or removal of the condition if the National Board believes it is no longer necessary [section 127]. These provisions depend upon the existence of a condition as a threshold issue-absent a condition, these provisions have no relevant application. But in any event, Part 7 is concerned with powers available to a National Board relevant to its registration of practitioners; and these provisions concerning conditions, are not relevant to the application before the Tribunal. Public availability of records of decisions 30Division 5 of the National Law addresses "other records" that must be kept by National Boards. Section 232 (1), requires records of decisions made by "...responsible tribunals..." (such as those of the former, Pharmacy Tribunal) that relate to registered health practitioners, to be kept and published on its website; such record to be kept in a way that does not "...identify persons involved in the matter, unless the decision was made by a responsible tribunal and the hearing was open to the public... [and]...otherwise... [kept]...in the way decided by the National Board.": section 232(2). 31The NSW Pharmacy Tribunal satisfies the definition of "responsible tribunal" in section 5 of the National Law which is in the same form as that current at the time of the Practitioner's hearing and decision, in 2010. Section 165 of the National Law prior to commencement of the Civil and Administrative Tribunal Act included the Pharmacy Tribunal, established for the health profession of Pharmacy. There is nothing in the relevant decision concerning the Practitioner, that the Pharmacy Tribunal's hearing was other than, in the usual way, open to the public. 32It seems therefore, that the Pharmacy Tribunal's decision concerning the Practitioner-including each of the Orders made-would remain available to the public on the PBA website; and presumably, also available on other websites giving public access to decisions of NSW courts and tribunals. Members of the public can inspect the National Register (relevantly, Register of Pharmacists) free of charge, at its national office or local offices and on the Agency's (PBA) website. Conclusion 33The Pharmacy Tribunal's Orders numbered 1, 2 and 3, are not amenable to review under Division 8 of Part 8, of the National Law. The order of reprimand is not a Relevant Order for Division 8 purposes; the period of suspension has expired; the imposed condition has been fulfilled. In these circumstances, appointment of the Council as an ARB is contrary to the legislative purpose of Division 8 review. The Tribunal cannot therefore appoint the Council as an ARB. It declines to do so. 34 In these circumstances, the Tribunal invites the Applicant Practitioner to consider withdrawing his substantive application to the Tribunal filed on 3 June 2014; and to seek the assistance of the Council to request AHPRA / PBA to remove the expired Orders made by the Pharmacy Tribunal of NSW. 35The Tribunal assumes for reasons stated above, that relevant information concerning the Orders made by the Pharmacy Tribunal remain in the Public Register. Information about the fact of reprimand may be removed by the Pharmacy Board of Australia (PBA) if it considers it appropriate as described earlier. The Practitioner perhaps assisted by the Council, might wish to approach the PBA seeking removal of such information. 36To assist the Practitioner to be appropriately informed, the Council may wish to ascertain whether any information about the relevant orders of reprimand, suspension and the imposition of the condition, remain on the Public Register; and if so, whether any mechanism is available to AHPRA / PBA to remove all or any of them; and whether if there is any such mechanism, it requires an application by the Practitioner. 37The Council, AHPRA and the PBA may usefully consider whether these matters need further consideration in the context of any statutory amendment. Orders (1)Given its interpretation of relevant statutory provisions, the Tribunal declines to appoint the Pharmacy Council of New South Wales as an Appropriate Review Body as the Orders, the subject of the application, are not reviewable under Division 8 of Part 8, of the National Law. (2)The Applicant Practitioner shall within twenty-one (21) days of the date of these orders, notify the Registrar, Occupational Division, NCAT, in writing, if he wishes to withdraw his substantive application filed on 3 June 2014. (3)The Registrar is requested to provide a copy of these reasons, to the Pharmacy Council of New South Wales. (4)In the event the Applicant Practitioner seeks to pursue his substantive application, liberty to re-list the matter before Principal Member Dwyer, for directions, on three (3) days' written notice to the Tribunal and to the Health Care Complaints Commission. (5)The Pharmacy Council may apply to be joined as a party to the proceedings or to be heard at the substantive hearing. (6)No order made as to costs. ********** 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: 05 November 2014