Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cheung [2018] NSWCATOD 10 Hearing dates: 23 October 2017 Date of orders: 15 January 2018 Decision date: 15 January 2018 Jurisdiction: Occupational Division Before: R C Titterton, Principal Member R Benda, Senior Member M Cross, Senior Member J Baker, General Member Decision: 1. Complaints One, Two and Three are established. 2. The respondent's registration is cancelled. 3. The respondent is not to apply for a review of order (1) for a minimum period of four years. 4. The respondent not provide pharmaceutical services whilst he is not a registered pharmacist including the following: (a) Preparing medicines; (b) Obtaining medicines; (c) Distributing and/or selling medicines, including under the direction or control of another person; (d) Administering medicines; (e) Dispensing pharmaceutical products; (f) Compounding medicines; (g) Teaching, instructing or educating about drugs or medication. 5 The respondent pay the Commission's costs of the application. Catchwords: TRADES AND PROFESSION –– Pharmacy –– Health Practitioner Regulation National Law –– where practitioner convicted of administering poison (etc.) with the intention of causing distress or pain Legislation Cited: Crimes Act 1900 Health Regulation National Law NSW Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Roopra (No 2) [2013] NSWDT 3 Health Care Complaints Commission v Sharah [2015] NSWCATOD 99. Health Care Complaints Commission v Taylor [2010] NSWNT 10 Health Care Complaints Commission v Vu [2012] NSWPYT 1 Latoudis v Casey (1990) 170 CLR 534 Lee v Health Care Complaints Commission [2012] NSWCA 80 NSW Bar Association v Hamman (1999) NSWCA 404 Ohn v Walton (1995) 36 NSWLR 77 Qasim v Health Care Complaints Commission (2015) NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mr Yan Chi Cheung (Respondent) Representation: Counsel: Ms A Bonnor (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Access Legal Solicitors (Respondent) File Number(s): 2017/00183437 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the Tribunal prohibits the disclosure of the name of the person referred to in the proceedings as Person A, her husband or the Church they attend. REASONS FOR DECISION Summary 1. By Application for Disciplinary Findings and Orders filed 16 June 2017, the Health Care Complaints Commission (the Commission) seeks orders, pursuant to s 149C of the Health Regulation National Law NSW No 86a (the National Law), that: 1. The respondent's registration be cancelled; 2. The respondent not apply for a review of that order for a minimum period of five to ten years; 3. The respondent not provide pharmaceutical services whilst he is not registered as a pharmacist; and 4. The respondent pay the Commission's costs of the application. 1. The complaints the subject of the application are, in summary, that: 1. The respondent was convicted of a criminal offence, s 41 of the Crimes Act 1900 (Crimes Act), namely that he administered poison (etc.) with the intention of causing distress or pain; 2. The respondent was guilty of unsatisfactory professional conduct, in that having been charged with two offences on 12 May 2016: 1. s 41 of the Crimes Act; and 2. s 317(a) of the Crimes Act (namely that he tampered with evidence with the intent to mislead a judicial tribunal); 3. the respondent contravened s 130(1) of the National Law in that he failed to notify the Australian Health Practitioner Regulation Agency (AHPRA) within 7 days of being charged; 1. The respondent is not a suitable person to hold registration as a pharmacist. 1. The respondent has admitted each complaint. 2. For the reasons that follow, we are satisfied that each complaint is established. We order that the respondent's registration be cancelled, and that the respondent: 1. Not apply for a review of that order for a minimum period of four years. 2. Is not to provide pharmaceutical services whilst he is not registered a pharmacist. 3. Pay the Commission's costs of the proceedings. The documentary evidence of the respondent 1. The respondent filed a number of documents to the Tribunal, none was recent and all had been prepared for other purposes, such as the Local Court sentencing proceedings or the Commission's investigation. The documents included but were not limited to the following. 2. First, a statement of Mr John Farrar dated 30 June 2016. Mr Farrar is a forensic pharmacologist employed under contract by the New South Wales Police Force. This report had been prepared for the purposes of the sentencing of the respondent at the Local Court. 3. Secondly, a report of Mr Tim Watson-Munro dated 5 July 2016. Mr Watson-Munro is a consultant forensic psychologist. His report was also prepared for the purposes of the respondent's sentencing. Mr Watson-Munro notes that it appears that the respondent's offending behaviour occurred when he commenced working with Person A at the Pharmacy at the University of NSW (the Pharmacy). He had known Person A from their Church congregation and had feelings for her. When his expressions of interest were rejected the offending behaviour commenced. 4. Mr Watson-Munro states that the respondent expressed appropriate remorse for what had occurred, and considered that he had insight into the impact of his offending not only on Person A but his own family and the broader community. Mr Watson-Munro says that the respondent understands the substantial breach of trust which occurred and accepted that his career as a pharmacist was over. Testing confirmed major depression and features of an anxiety disorder. Mr Watson-Munro said that the depression in all likelihood predated the commencement of the respondent's offending. 5. Thirdly, a presentence report prepared by Ms Jodie McMahon, Community Corrections Officer, City Community Corrections Office, dated 3 July 2016. The respondent was assessed as being suitable for a Community Service Order. It was thought that the respondent would benefit from ongoing treatment from a psychologist and psychiatrist. 6. Fourthly, a report of Dr Charles Chan dated 22 June 2016. Dr Chan is a psychiatrist. Dr Chan said that the respondent presented with an adjustment order with depressive symptoms. He was distressed but had strong support from his Church friends. Dr Chan was reviewing him closely. He did not prescribe any psychotropic medications. 7. Fifthly, a report of Ms Stephanie Lowe dated 7 June 2016. Ms Lowe was a treating psychologist of the respondent. She had been asked to prepare a treatment report for the respondent. She noted that he had expressed regret and remorse for what he had done. 8. Sixthly, a bundle of character references from members of the respondent's Church, and one reference from a professional colleague. All had been prepared for the purpose of the sentencing hearing. The oral evidence of the respondent 1. The respondent had not provided a statement to the Tribunal in accordance with directions. However, at the hearing he sought to give oral evidence. We explained to him that he would be cross-examined by the Commission's counsel, which he said he understood. In summary, in his oral evidence-in-chief he said that he felt very sorry about what happened, which he said was out of character. He had never received any complaint before this incident. He accepted that the incident was very serious, and that he was "really regretful". He said he had had time for the chance to reflect in gaol, and that he had been studying, to give him more insight. He had studied a Diploma in Warehouse Population. He had reflected on what he had done, and he thought that he had chosen the "worst way". He said that he had tried conciliation with the respondent, in that he had sent her a letter of apology, but he had not received a response. He saw a counsellor while in prison and afterwards, and a psychologist who helped him to manage his stress. He sees psychologist Stephanie Lowe every two months. She has prescribed breathing exercises for him to cope with stress. 2. The respondent is still on parole, and will be for a further 8 months. He is not working at the moment, and is looking for a job. He undertakes volunteer work with his Church and the Salvation Army. He also helps out in a retail shop. He said he likes to help in the community and help the sick. 3. The respondent said he thought it fair for the Tribunal to punish him and for the punishment to include de-registration. 4. The respondent was then cross-examined by the Commission's counsel. One of the matters concentrated on by Ms Bonnor was the respondent's statement to the police that he wanted to cause Person A "suffering". He agreed that he had said that a number of times. Ms Bonnor suggested that this meant he wanted to cause her pain and distress and to injure her. The respondent disagreed. He said that he had chosen the wrong word, and that he never meant to cause her harm. Ms Bonnor suggested that the respondent was angry with Person A because she had rejected him. His reply was that he could not speak to his wife "for that one", and that he had lost the trust of his wife before. Now, however, their relationship is better. This might be thought to be a non-responsive answer, and again Ms Bonnor suggested to the respondent that he was angry because Person A had rejected him. The respondent said he had made a wrong choice. He rejected the suggestion that he believed it was Person A's fault. 5. Ms Bonnor asked a number of questions about the actual administration of the drugs involved. By way of example, she asked him to describe his decision to administer Phenergan on the first occasion. The respondent said he felt terribly sorry for Person A, that he had the mixture, and lots of options, but that he chose the wrong way. That first time he was disappointed. He said that Person A had an attraction to him in the beginning. When asked why, he said that it was the wrong thing but there was a lot happening in his life at the time. He agreed that he felt attracted to Person A. He was asked if he thought Person A was attracted to him. His response was that he realized that he was wrong. He said that he felt attracted to her for a number of months. However, that changed before the administration the first administration of Phenergan. Ms Bonnor asked him what changed. He said that he made a mistake. He denied he was angry when he realised Person A was not attracted to him anymore, rather, he had a sense of disappointment. He agreed that he thought that she was not the person he thought she would be. When asked directly why he first took the decision to administer drugs, he said that he did not want to hear from her anymore, that he wanted to stop Person A complaining and to keep her quiet. He said he could not really handle stress. He now knows that what he did was "pretty stupid". 6. Ms Bonnor took him through the steps involved in each administration of the various drugs and he agreed that essentially every action was premeditated, in that he arrived at work early, crushed tablets and looked for opportunities to use his specialised knowledge to make a decision about what to put into Person A's drinks, including using soluble colourless drugs, and was aware that possible side effects included drowsiness and addiction. 7. Ms Bonnor asked him whether what he did was wrong. He said it was. She asked him why did what he did. His response was, "I can't find a way out for that one". 8. In relation to the Particular (9) to the Complaint Three, the respondent agreed that he had touched Person A's hands on a number of occasions, but said it was accidental every time. He touched her buttocks once, but this was accidental. In relation to touching Person A's breasts, this too was accidental and not deliberate. Something had fallen from a shelf in the storeroom and he accidentally touched her reaching for the item that fell. He says he should have apologized immediately. He was very embarrassed. 9. Ms Bonnor also asked the respondent whether he ever thought about his actions in the context of being a pharmacist who was occupying a position of trust. He said he had and he realises that he had betrayed the trust of the community. Ms Bonnor asked the respondent how he felt when he saw Person A at work affected by medication. He said that he felt a combination of guilt and relief. He agreed that in reaching such an assessment he was only considering his own feelings and that he was being selfish. Ms Bonnor asked him to explain why he acted selfishly. He said it was because he did not consider Person A's feelings. He said that it was very important to trust people in the community. 10. The respondent said that at the time he was arrested, he had no plans to stop administering drugs to Person A. Findings of Fact 1. As the Tribunal noted in Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62: The Commission bears the burden of proving the matters particularised in the Complaint on the balance of probabilities. In cases such as this, where the allegations, if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities. 1. Each party was represented at the hearing, and each had filed documents pursuant to directions of the Tribunal. The parties tendered a Statement of Agreed Facts (Exhibit C). 2. Having considered the documents filed by the parties and the oral evidence of the respondent at the hearing, we make the following formal findings of fact. (Those matters appearing in italics are facts agreed to by the parties.) 3. The respondent graduated from Sydney University with a Bachelor of Pharmacy in 2009 and was first registered as a pharmacist in New South Wales on 3 December 2009. 4. The respondent commenced work at the Community Pharmacy at the University of New South Wales Pharmacy as an intern in 2008 and continued to be employed there until his employment was terminated on 4 May 2016. 5. Between 30 September 2013 and 4 May 2016, the respondent worked three days a week, Mondays, Wednesdays and Thursdays, as the Pharmacist-in-Charge at the Pharmacy. 6. In March 2015, Person A commenced work at the Pharmacy as a Pharmacy Assistant. Person A was introduced to the owner of the Pharmacy, Mr Duy Pham, through the respondent. 7. The respondent knew Person A and her husband, for approximately two years prior to her commencing employment at the Pharmacy, through the XXXX Church fellowship in Surry Hills. 8. Person A is a female born on 28 November 1989. 9. In approximately April 2015, the respondent began developing a personal liking of Person A. Person A confronted the respondent about his actions and became "rude" towards him at which point the behaviour stopped. 10. Between May and June 2015, the respondent administered to Person A 50mg of Phenergan three times over a period of three weeks by crushing two 25mg tablets and mixing that with water and "spiking" Person A's water. 11. Phenergan is the brand name for a preparation containing the first generation histamine antagonist (antihistamine) promethazine that has sedative and antiemetic properties that can have side effects such as dizziness, tinnitus, ataxia, blurred vision, hypotension and tachycardia or bradycardia. 12. Between January and March 2016, the respondent administered to Person A 10mg of Doxylamine once or twice a week by crushing a 10mg tablet and mixing that with water and "spiking" Person A's water. 13. Doxylamine is a first-generation antihistamine that, in overdose, can cause sedation, respiratory depression and coma. 14. During Easter in 2016, the respondent administered to Person A's instant coffee container, 150mg of Deptran by covertly adding the powder to the coffee grains. 15. Deptran is the brand name for the antidepressant drug doxepin. 16. Between March and May 2016, the respondent administered 250mg of Seroquel to Person A once a week by crushing ten 25mg tablets and mixing that with water and "spiking" Person A's water. 17. Between March and May 2016, the respondent administered to Person A 30mg of Endep to Person A once a week by crushing tablets and mixing that with water and "spiking" Person A's water. 18. Endep is the brand name for a preparation containing the tricyclic antidepressant drug amitriptyline which can cause blurred vision, xerostomia and constipation. 19. The respondent administered these drugs to Person A on approximately 23 occasions. 20. Person A suffered a number of side effects from the drugs including hyper-sensitivity, intense drowsiness and detachment from her surrounding, at times almost collapsing. 21. On 27 April 2016, Person A asked the respondent how to use the CCTV system after she noticed a bitter taste in her drinks and a sensation of numbness on her tongue. Subsequently, the respondent asked Mr Phan for the system passwords. He accessed the CCTV system and attempted to delete the CCTV data for that day. 22. The respondent was unable to delete the footage for that day and subsequently changed the time and date on the system. 23. On 3 May 2016, Person A viewed the CCTV footage in the Pharmacy for 27 April 2016. She observed the respondent pouring a liquid from a small, clear bottle, into her cup on the service counter. Person A immediately reported this to Mr Pham. 24. On 4 May 2016, Mr Pham confronted the respondent about what was seen on the CCTV footage and the respondent admitted to spiking Person A's drinks abut 10-15 times using the medication from the Pharmacy dispensary. 25. The respondent's employment was immediately terminated and Mr Pham notified the Police. On 9 May 2016, Mr Pham made a mandatory notification to AHPRA. 26. At approximately 11am on 12 May 2016, the respondent was arrested at his home and conveyed to Maroubra Police Station where the respondent participated in an electronically recorded interview. 27. During the Police interview, the respondent admitted that he had full knowledge from his training and study as a pharmacist of the likely effect of the drugs on Person A. 28. On 18 May 2016, the respondent provided written submissions to the Pharmacy Council of NSW (the Council) regarding their intention to consider action under s150 of the National Law. 29. On 19 May 2016, the Council suspended the respondent's registration pursuant to s 150(1)(a) of the National Law, effective from 20 May 2016. 30. On 20 May 2016, the Council referred the matter to the Commission for investigation and on the same day, the respondent and Person A were advised that an investigation was being commenced. 31. on the severity of his sentence. 32. The respondent was released on supervised parole on 4 July 2017. 33. The Complaints Complaint One 1. Compliant One is that the respondent was convicted of a criminal offence, namely s 41 of the Crimes Act. The particulars of Complaint One were that, between 12.01am on 1 May 2015 and 11.59pm on 5 May 2016 at Kensington, the respondent did cause to be taken by Person A an intoxicating substance, namely Phenergan, Doxylamine, Endep, Seroquel and Deptran with intent to cause distress and pain to Person A. 2. There was no dispute that the respondent was so convicted; he admitted as such and the certificate of conviction issued by the Local Court was in evidence before us. 3. Accordingly, we find this complaint established. Complaint Two 1. The second complaint was that the respondent was guilty of unsatisfactory processional conduct, in that having been charged with two offences on 12 May 2016, namely: 1. s 41 of the Crimes Act; and 2. s 317(a) of the Crimes Act (namely that he tampered with evidence with the intent to mislead a judicial tribunal), the respondent contravened s 130(1) of the National Law in that he failed to notify AHPRA within 7 days of being charged with an offence punishable by 12 months' imprisonment or more. 1. Section 130 requires a registered health practitioner, within 7 days after becoming aware that a relevant event has occurred, to give the National Board written notice of the event. A relevant event includes a practitioner being charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months' imprisonment or more. We note that the respective maximum penalties for s 41 and s 317 offences are five and ten years' imprisonment respectively. 2. This complaint is admitted, although we note that the respondent says that he had no intention not to comply with s 130 of the National Law, and that he was unaware of the requirement at the time, and that he did not expect a period of imprisonment. 3. We find this complaint established. Complaint Three 1. The third complaint was that the respondent is not a suitable person to hold registration as a pharmacist. The 11 particulars of this complaint are as follows: 1. Complaints One and Two and the Particulars thereto both individually and cumulatively; 2. Between approximately May 2015 and May 2016, the respondent intentionally administered the drugs as set out in Particulars (3) to (7) for consumption by Person A approximately 23 times; 3. At the time of the conduct referred to in Particular 2 above, the respondent was acting as Person A's supervisor and worked with her at the Pharmacy; 4. Between May and June 2015, the respondent caused 50mg of Phenergan to be taken by Person A approximately three times over a period of three weeks by: 1. (a) crushing two 25mg tablets; 2. (b) mixing that with 100ml of water; 3. (c) providing the mixture to Person A without her knowledge or consent; 1. Between January and March 2016, the respondent caused 10mg of Doxylamine to be taken by Person A approximately once or twice per week by: 1. crushing one 10mg tablet; 2. mixing that with 100ml of water; 3. providing the mixture to Person A without her knowledge or consent. 1. On or around early April 2016, the respondent mixed 150mg of Deptran into the coffee grains in a container of instant coffee kept by Person A for her consumption without her knowledge or consent. 2. Between March and May 2016, the respondent caused 250mg of Seroquel to be taken by Person A approximately once a week by: 1. (a) crushing ten 25 mg tablets; 2. (b) mixing that with 100ml of water; 3. (c) providing the mixture to Person A without her knowledge or consent. 1. Between March and May 2016, the respondent caused 30mg of Endep to be taken by Person A approximately once a week by: 1. crushing tablets; 2. mixing that with 100ml of water; 3. providing the mixture to Person A without her knowledge or consent. 1. Prior to the conduct referred to at Particulars (2) - (8) above, while acting as Person A's supervisor and while working with her at the Pharmacy, the respondent: 1. engaged in uninvited and unwelcomed behaviour of a personal and physical nature towards Person A; 2. ceased the behaviour referred to in sub-paragraph (a) above after Person A confronted the respondent and told him to desist. 1. The respondent engaged in the conduct referred to in Particulars (2) - (8) above with the intent to cause suffering to Person A. 2. On 27 April 2016, the respondent accessed the CCTV footage for the Pharmacy and: 1. attempted to delete the CCTV footage which showed him adding the drugs to Person A's drinks that day; 2. when he was unable to delete the CCTV footage, he changed the time and date of the system in an attempt to conceal the footage showing him adding the drugs to Person' A's drink. 1. This complaint was admitted by the respondent in all respects, save for Particular (9). The uninvited and unwelcomed behaviour of a personal and physical nature the subject of Particular (9) was said to be the following. 2. First, touching the respondent's hands. The respondent denies this in par [21] of his submissions, but in the second sentence he only takes issue with touching Person A's breasts and buttocks. In oral evidence, the respondent appeared to admit that touching of hands was not accidental. 3. Secondly, the touching of the Person A's breasts and buttocks. The respondent denies this in in par [21] of his submissions, and denies desiring any sexual contact with Person A. He says that the breast and buttocks touching was accidental. He also gave oral evidence to this effect. 4. Thirdly, opening Person A's mail at work. 5. Fourthly, visiting Person A's at home alone. 6. Fifthly, attending Person A's dental visit in May 2015 without her consent and despite her turning his offer down again and again. 7. The Commission submits that is not ultimately necessary that Particular (9) be established, although a finding to this effect would make the complaint more serious. However, the Commission submits that: 1. The respondent's reliance on his denials about Particular (9) and his other contradictions of Person A's evidence also raise her credibility as an issue, where he would contend that his version should be accepted and hers rejected. While this is relevant to whether Particular (9) is established, it may also affect the weight given to the conduct described in Particular (9) and the seriousness with which his conduct is viewed overall in determining protective orders; 2. While the respondent does not actually assert that Person A was partly responsible for his conduct, he appears to insinuate a degree of provocation; 3. The respondent did not request that Person A be available for cross-examination. Her evidence was not tested and the respondent's contradictory propositions not put to her. The respondent and his legal representatives were on notice of her evidence. If the respondent intended to rely on a case that contradicted Person A's account, he should have given Person A an opportunity to comment by putting the substance of his contradictory version to her in cross-examination. 1. We accept these submissions. We consider that Person A's essentially uncontradicted evidence ought to be accepted. We are satisfied on the balance of probabilities that all the particulars of Complaint Three, including Particular (9) are made out. 2. While the respondent has admitted that he is not a suitable person for registration as a pharmacist, the Commission correctly submits that that admission does not obviate the requirement under s 149C that the Tribunal itself be satisfied of his unsuitability to practise. 3. In addition to the matters discussed above relevant to the circumstances of the offence, the Commission also relies to the respondent's tampering with CCTV at the Pharmacy, the need to protect the public, the respondent's progress and prospects of rehabilitation and Complaint Two. The Commission submits that while the question is whether the respondent is currently not a suitable person to hold registration as a pharmacist, his conduct is in the very recent past. 4. "Suitable person" is not defined in the National Law, however some assistance as to its meaning is provided by s 55(1) of the National Law: Health Care Complaints Commission v Roopra (No 2) [2013] NSWDT 3. Section 55(1) provides a list of matters rendering a person unsuitable relevantly including: (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (h) … 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. 1. One relevant consideration in determining suitability of a practitioner is whether the conduct in question could be characterised as 'one off' or 'isolated' in nature. Considerations such as the maintenance of the reputation of the profession and the trust that is reposed in the profession by the public are also relevant to the determination of the question of suitability of an individual for registration: Roopra at [285]. Other factors include professional integrity, personal integrity, insight into the reason why the conduct attracted the severe criticism of the Tribunal, insight into the steps required to remediate any personal or professional deficits identified by the offensive conduct, steps taken towards such remediation, the respondent's otherwise good character, the nature of the respondent's prior professional practice including any prior misconduct: Health Care Complaints Commission v Vu [2012] NSWPYT 1 at [69], adopted in Roopra at [287]. 2. Taking the evidence as a whole, we are satisfied that, given the nature of the respondent's criminal history, the respondent is not an appropriate person to practise the profession, nor it is not in the public interest for the respondent to practise the profession. In addition, we consider that the nature of his offence is such that he is not a fit and fit and proper person for registration. 3. We accept the Commission's submission that this case reveals disturbing character traits of a kind that makes the respondent unsuitable to practise as a pharmacist until at some future date when he can satisfy the Tribunal that his defects (including but not limited to his disregard for moral, ethical and legal limitations; a willingness to seek retribution; surreptitious planning and execution over an extended period of time and inappropriate allocation of blame to others) are overcome. We agree that these issues are fundamental to the question of the respondent's suitability to practice as a pharmacist. 4. We are satisfied that Complaint Three is established. Disciplinary Outcome Relevant principles 1. The relevant principles to be applied in matters of this nature include the following. 2. First, the overriding principle governing the proceedings is the protection of the public. An imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) of the National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are administer the need to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]. 3. As was stated by Barrett JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20]: Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. .... 21 The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards. 1. Secondly, whether an offence or offences are sufficiently serious to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 2. Thirdly, the purpose of the disciplinary powers of the Tribunal is not to punish the respondent but rather to protect the public and maintain proper professional standards: Lee at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]. 3. Fourthly, the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638C. Commission's submissions 1. The Commission submits that the following orders should be made: 1. Pursuant to s 149C(1)(c) and/or (d) of the National Law, that the respondent's registration as a pharmacist be cancelled; 2. Pursuant to s 149C(7) of the National Law, that the respondent may not make an application for review of the order cancelling his registration for 5 to 10 years; 3. Pursuant to s 149C(5) of the National Law, a prohibition order, namely that the respondent not provide pharmaceutical services whilst he is not registered a pharmacist. The respondent's registration should be cancelled 1. The Commission submits that the Tribunal should be satisfied that the circumstances of the offence render the respondent unfit in the public interest to practise as a pharmacist, and/or that he is not a suitable person for registration as a pharmacist. 2. As to the public interest, the Commission submits that the circumstances of the offence warrant the Tribunal finding that the respondent is not fit in the public interest to practise as a pharmacist. The circumstances include the seriousness of the respondent's conduct, the respondent's state of mind at the time of the offence, and his level of insight into the commission of the offence, and his breach of trust. 3. As to lack of suitability to practise as a pharmacist, the Commission submits that, in addition to the matters discussed above relevant to the circumstances of the offence, the complainant also refers to the respondent's tampering with CCTV at the Pharmacy, the need to protect the public, the respondent's progress and prospects of rehabilitation and Complaint Two. The Commission submits that while the question is whether the respondent is currently not a suitable person to hold registration as a pharmacist, the conduct is in the very recent past. For a significant period since the respondent's conduct was detected, either the hearing of his criminal charges was pending or he was in custody. Period of cancellation 1. As to the appropriate period of cancellation, the Commission submits that the relevant matters to be considered by the Tribunal include the period of time likely to be required for the practitioner to change his conduct so that he is to practise without risk to the health and safety of the public. To address that question, the respondent's insight into his conduct is relevant as is his progress since the offending. However, in exercising its discretion to make such an order, the Tribunal is not required to take into account the fact that the respondent has been suspended from practice for a period: Qasim v Health Care Complaints Commission (2015) NSWCA 282 at [73]. 2. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA (at [22]) said that the fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. 3. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints, which have been proven. Such an order plays a part in the general deterrence reflected by the order: Chen at [88]. Insight 1. The Commission accepts that the respondent has obtained assistance for compulsive and addictive behaviour, and that he appears to have a good appreciation that what he did was wrong. However, the Commission submits that there were concerning features in his oral evidence and it may be inferred, particularly in the absence of updating psychological or psychiatric evidence, that there is "a long way to go". 2. The respondent was cross-examined about a letter of 4 November 2016 to the Commission. He said, inter alia, that he did not have malicious intent when administering the drugs to Person A; that he did not express his intent accurately in English to police; that his use of the words "to punish her" never meant he wished to do her harm in the short or the long term; that he meant to keep her quiet at the work place, where her complaints disturbed him. He also said that the drugs he chose "to keep her quiet", all had a short half-life and he administered them in highly controlled dosages, and mostly within the therapeutic range. 3. The Commission submits that, whatever the reason the respondent committed the acts that he did, his behaviour was extremely serious and the explanation in his letter of 4 November 2016 is most concerning in any assessment of his insight at that stage. These submissions were made while he was in custody and after he had started to engage with counselling and therapy. It was also entirely inconsistent with his plea of guilty to intending to injure or cause distress or pain that he would subsequently say that he never meant to do Person A harm. Similarly, the submission that he controlled the dosages and chose drugs with a particular half-life would appear to attempt to somehow mitigate the conduct, but tends to artificially minimise the very serious nature of it. Respondent's submissions 1. The respondent appears to accept that he should be either deregistered or suspended, although he also submits that consideration be given to him continuing to practise under supervision. If he is deregistered, the respondent submits that he should be allowed to reapply for registration in two years. If he is suspended, the respondent submits that he be suspended for two years, but subject to a variety of conditions including that he be monitored by a psychologist, be treated by a psychiatrist and engage in further counselling, and attend courses on ethics. He submits that those conditions be critical compliance orders, breach of which would result in cancellation of his registration. 2. He relies on the following matters to support his submissions. 3. First, he has already served gaol time, shown contrition and accepted responsibility. (We note here that, in reply, the Commission submitted that the fact that the respondent has served time in custody for the s 41 offence should not reduce the period of any non-review period. The Commission submits that to take the respondent's time in custody into account in this way would be likely to constitute an error). He has no other reasonably employable skills apart from pharmacy, and he has already paid "a heavy price"; 4. Secondly, he now understands the gravity of the issue and expressed deep remorse for his action. 5. Thirdly, he has developed 'safeguards' preventing him from reoffending and to manage his stress, or things that would trigger his emotional response. These safeguards involve his restored relationship with his wife, his counsellors and his close friends. 6. Fourthly, he is of the belief that he has been changed and reformed or on the road of reform. 7. Fifthly, he is keen to help people as a pharmacist but not for now. 8. Sixthly, he admitted he needed to build trust and not to "misplace" them. 9. Seventhly, over the eight years that he practiced as a pharmacist there was no complaint to management by the public, nor even by Person A, about his behaviour or dispensing of medicines. 10. Eighthly, there is no evidence that he was acting uncontrollably in a psychotic state. 11. Ninthly, he recognizes that he is "unworthy" as a man, and continues to seek counselling and treatment programs to be decided to return to the workforce. 12. Tenthly, he has a desire to achieve excellence as a worthy pharmacist and to undergo a vigorous program of counselling, treatment and intensive guidance. 13. The respondent does not contest the seriousness of the offence for which he was convicted. Nor does he contest that he misapplied and misused his specialised pharmaceutical knowledge in committing the offence, of that the offence was premeditated. He submits that he did not intend to cause Person A "uncontrollable damages". He further submits that his actions did not have anything to do with sexual fantasy or needs, although we note that that submission sits uncomfortably with his statement at par [38.1] of his written submissions, that he "had been infatuated with Person A for up to two years before giving Person A the "lead in securing" the position of assistant in the pharmacy". 14. The respondent relies on the report of Dr Watson-Munro, who suspected that he had a degree of depression, and displayed features of an anxiety disorder. 15. The respondent submits that he has obtained assistance for his compulsive and addictive behaviour. 16. The respondent agrees and admits that he is not currently a suitable person to hold registration as a pharmacist, but should be given an opportunity to correct, rehabilitate and reform himself in the future. Consideration 1. Under s 149C of the National Law the Tribunal may suspend or cancel registration if the Tribunal is satisfied, relevantly: 1. The practitioner has been convicted of an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise in the practitioner's profession: s 149C(1)(c); 2. The practitioner is not a suitable person for registration in the practitioner's profession: s 149C(1)(d). 3. If suspension or cancellation is ordered, it may "provide that an application for review … may not be made until after a specified time": s 196(7). 1. The Tribunal should consider whether the imposition of a lesser sanction than cancellation would be appropriate: Qasim at [76]. The Commission contends that a sanction less than cancellation for an appropriate period would be inadequate in this case. 2. For the following reasons, we agree. 3. First, the conduct which constituted the offence was very serious. In short, the respondent administered regulated drugs over an extended period of time against an unknowing victim who was young and who was under his supervision. 4. Secondly, the conduct occurred on many occasions over a period of nearly 12 months. 5. Thirdly, on each occasion that the respondent administered the drugs, detailed planning was involved which commenced early in the morning at 8.15am when he would usually crush the tablets, and continued over the course of the day. 6. Fourthly, the respondent used his specialised pharmaceutical knowledge to select drugs that he thought would be undetected. He specifically used colourless, soluble drugs: He used specialised pharmaceutical equipment, and his knowledge of how to use it, to crush the drugs and use filter paper to administer it. 7. Fifthly, the drugs are known to have a number of adverse side effects, and the respondent had detailed knowledge of these effects. The respondent was undeterred by the prospect that Person A could suffer side-effects, and in cross-examination said that he did not give this any thought. 8. In protective jurisdictions, the object of protection of the public includes deterring the practitioner from repeating his or her misconduct and deterring others who might be tempted to behave in a similar way: NSW Bar Association v Hamman (1999) NSWCA 404. The Commission rightly submits that the respondent's conduct is a serious breach of the standards that the public have a right to expect of a practitioner. The objective seriousness of the conduct of the respondent, the fact it was deliberate, the fact it occurred over a period of time and the fact that the respondent used his specialised knowledge to effect the conduct all militate strongly in favour of an order cancelling the respondent's registration. 9. We think that that is the appropriate outcome. As to the period of time before which the respondent can reapply for registration, we have noted above that the Commission submits that this should be in the order of five to ten years. The Commission submits that the fact that the respondent has served time in custody for the s 41 offence should not reduce the period of any non-review period, and to take the respondent's time in custody into account in this way would be likely to constitute an error. 10. On the other hand, the respondent, as we understand it, submits that the appropriate period is two years (written submissions, par [6]). 11. In our view, in light of the findings set out above, and the seriousness and nature of the respondent's offence, the appropriate period before which the respondent can apply for a review of the order cancelling his registration is four years. Prohibition Order 1. The Commission also seeks a prohibition order pursuant to s 149C(5) of the National Law to prevent the respondent from providing any health services during the period of his deregistration. Section 149C provides that: If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following: (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. 1. The Commission submits that the "substantial risk to the health of members of the public test" that is a precondition to the making of such an order is a risk that is real or apparent on the evidence presented not a risk that is without substance, or which is fancy or speculative. In this respect see Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Sharah [2015] NSWCATOD 99. 2. The Commission submits that, in view particularly of the respondent's lack of inhibition in utilising skills and means as a pharmacist to offend over a prolonged period, and given the conduct was recent, the respondent presently poses a substantial risk to the health of members of the public. We agree. 3. The Commission submits that "Health service" is defined to "include" the services that are specified in the list in s 5 of the National Law, and that therefore the list in s 5 is not exhaustive. The Commission notes that "Pharmaceutical services" is one of the health services specified, although it is not a defined term. The question arose whether it may be defined in a prohibition order. The Commission submitted that on any prohibition order, pharmaceutical services be specified as including the following health services: 1. Preparing medicines; 2. Obtaining medicines; 3. Distributing and/or selling medicines, including under the direction or control of another person; 4. Administering medicines; 5. Dispensing pharmaceutical products; 6. Compounding medicines; 7. Teaching, instructing or educating about drugs or medication. 1. As to the paragraph (7), the Commission submits that if as the respondent is considered to be unsuitable to practise as a pharmacist because of issues of a kind that have occurred in this case, the respondent would also be unsuitable to educate others in the practise of pharmacy. Costs 1. At the conclusion of the hearing the Commission indicated that, if successful, it would be seeking an order that the respondent pay its costs. As it submits, this is a costs jurisdiction, and costs should follow the event: Latoudis v Casey (1990) 170 CLR 534; Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Philipiah [2013] NSWCA 342. 2. The respondent asks that the Tribunal consider "his dire financial circumstances" before making such an order. 3. There was no evidence before us of the respondent's financial position. Even if there had been, as a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule: Philipiah at [42]. 4. The respondent is to pay the Commission's costs. Orders 1. The Tribunal orders that: 1. Complaints One, Two and Thee are established. 2. The respondent's registration is cancelled; 3. The respondent may not apply for a review of order (1) for a minimum period of four years. 4. The respondent not provide pharmaceutical services whilst he is not a registered pharmacist including the following: 1. preparing medicines; 2. obtaining medicines; 3. distributing and/or selling medicines, including under the direction or control of another person; 4. administering medicines; 5. dispensing pharmaceutical products; 6. compounding medicines; 7. teaching, instructing or educating about drugs or medication. 1. The respondent pay the Commission's costs of the application. ********** 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: 15 January 2018