Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Murray (No 3) [2019] NSWCATOD 125 Hearing dates: On the papers Date of orders: 23 August 2019 Decision date: 23 August 2019 Jurisdiction: Occupational Division Before: A Britton, Principal Member E Anderson, Professional Member D Preswick, Professional Member A Gray, General Member Decision: 1 Pursuant to s 149A of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on Ms Murray's registration for a period of 12 months or such longer period as determined by the Pharmacy Board of Australia (the Board): Pharmacist-in-Charge (1) Not to work in a pharmacy as the pharmacist in charge (see s 57 of the Pharmacy Act 2010 (WA)). Mentor relationship (2) Ms Murray must nominate a registered experienced pharmacist to act as her professional mentor for approval by the Board. The mentoring relationship is to continue for a minimum period of 12 months from the date of the Board's approval or appointment of the mentor, with the Board to determine if an additional period of mentoring is appropriate. (3) Ms Murray is to meet with the mentor at a frequency and for a period of time to be determined by the Board. (4) At each meeting Ms Murray is to review and discuss her practice with the mentor with a particular focus on compliance with her obligations pursuant to the Medicines and Poisons Act 2014 (WA) and Medicines and Poisons Regulations 2016 (WA). (5) Ms Murray is to authorise the mentor to report to the Board, in approved format approved by the Board every three months (or at such other period as determined by the Board) about the fact of contact, and to inform the Board if there is any concern about her professional conduct, health or personal wellbeing. (6) Ms Murray is to meet all costs associated with the mentoring conditions. (7) Ms Murray must provide the mentor with a copy of the decision made by the New South Wales Civil and Administrative Tribunal: Health Care Complaints Commission v Murray [2018] NSWCATOD 119. Notification of conditions (8) Within 21 days of the imposition of these conditions, Ms Murray must provide to the Australian Health Practitioner Regulation Agency (AHPRA), on the approved form (see https://www.ahpra.gov.au/registration/monitoring-and-compliance/national-restrictions-library.aspx) the contact details of the owner of any pharmacy in which she is engaged and/or any locum agency through which she obtains work as a pharmacist. In providing that form, Ms Murray acknowledges that AHPRA will contact the owner/locum agency and provide them with a copy of the conditions on her registration or confirm that the owner /locum agency has received a copy of the conditions from Ms Murray. In addition, Ms Murray must provide the approved form to APHRA: (a) within seven days of the commencement of practice at each and every subsequent place of practice; (b) within seven days of commencing with any new locum agency; and (c) within seven days of any variation to these conditions. Audit of practice (9) Ms Murray is to submit to an audit of her practice by a person nominated by the Board. (10) The first audit is to be undertaken no later than two months from the date of this decision, or within two months after her return from maternity leave and thereafter at a frequency determined by the Board. (11) The auditor is to examine and assess the following aspects of Ms Murray's practice: (a) dispensary systems; and (b) the storage, supply, recording and destruction of drugs including drugs of addiction. (12) Ms Murray is to authorise the auditor to provide the Board with a report on their findings. (13) Ms Murray is to meet all costs associated with the audit and any subsequent audits and reports required by the Board. (14) Ms Murray must provide the auditor with a copy of the decision, Health Care Complaints Commission v Murray [2018] NSWCATOD 119. Ethics (15) Within three months of the date of this decision Ms Murray is to commence the Ethics and Dispensing in Pharmacy Practice course offered by the Pharmaceutical Society of Australia (PSA), or an equivalent course approved by the Board. Hours of work (16) Unless approved by the Board, Ms Murray must not work as a pharmacist for more than 40 hours per week. 2 Whilst Ms Murray's principal place of practice is in New South Wales, the Pharmacy Council of New South Wales is to be the review body. Whilst Ms Murray works anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and in those circumstances, a review of these conditions can be conducted by the Pharmacy Board of Australia. Catchwords: PROFESSIONS AND TRADES - health practitioner - formulation of conditions to be imposed on health practitioner's registration Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Murray (No 2) [2019] NSWCATOD 111 Category: Consequential orders (other than Costs) Parties: Health Care Complaints Commission (Applicant) Lauren Murray (Respondent) Representation: Counsel: L Fernandez (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self Represented) File Number(s): 2016/00378824 Publication restriction: Nil REASONS FOR DECISION 1. In a decision handed down on 15 July 2019, we decided to exercise the power conferred by the Health Practitioner Regulation National Law (NSW) (the National Law) to impose conditions on Ms Murray's registration as a pharmacist: Health Care Complaints Commission v Murray (No 2) [2019] NSWCATOD 111. In that decision, we set out a series of proposed conditions ("the proposed conditions") and invited the parties to comment on their form: Health Care Complaints Commission v Murray (No 2) at [51]. These reasons address the sole remaining issue to be determined in these proceedings, namely the appropriate form of conditions to be imposed on Ms Murray's registration. 2. Having considered the parties' submissions in response to our invitation to comment on the form of the proposed conditions, we concluded that the issue of conditions could be adequately dealt by way of written submissions. Accordingly, we decided to exercise the discretion to dispense with a hearing as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). The parties consent to the issue of conditions being determined "on the papers". Appropriate review body 1. Ms Murray currently resides in Western Australia and claims that she currently has no intention of returning to live or work in NSW. The parties agree that in those circumstances, the Pharmacy Board of Australia is the appropriate body to monitor any conditions imposed on Ms Murray's registration: Health Care Complaints Commission v Murray (No 2) at [50]. However, the Commission requests that an order be made specifying that in the unlikely event that Ms Murray were to return to work in NSW, that the Pharmacy Council of NSW is the appropriate review body. Ms Murray does not object to that proposal and we make that order. Date of effect of proposed audit condition 1. One of the proposed conditions requires Ms Murray to submit to an audit of her practice by a person nominated by the Pharmacy Board of Australia. The proposed conditions require the first audit to be undertaken no later than two months from the date of our decision. 2. Ms Murray brought to our attention a practical difficulty with the operation of the proposed audit condition, namely that she plans to commence maternity leave in about eight weeks. Given the uncertainties surrounding her return to work, she proposes that the proposed audit condition be amended to permit her to meet the audit condition by way of a retrospective audit of her practice in a pharmacy in which she has previously worked. 3. We decided not to make that amendment, because of the practical difficulties of conducting a retrospective audit of a practitioner's practice, and the limitations of such an audit. However, given the likelihood that Ms Murray will soon stop work at least for a short period, we have decided to amend the audit condition to require the first audit to be undertaken within two months of the date of this decision, or within two months of Ms Murray's return from maternity leave. 4. Ms Murray's pending maternity leave raises a further difficulty, namely whether the proposed term of the conditions, namely 12 months, is appropriate, given the possibility that she might not work as a pharmacist for any significant period over the next 12 months. If that were to occur, the audit, mentor and notification conditions would have no utility. Rather than attempt to address this potential difficulty by amending the proposed conditions, we have decided to leave it to the discretion of the Board to decide whether it is necessary and appropriate to extend the term of the conditions. That evaluation can only be properly undertaken once it is known the extent to which Ms Murray has worked as a pharmacist in the 12 months following this decision. If, Ms Murray does not practice as a pharmacist for any significant period over the next 12 months, we recommend that the Board exercise the power to extend the term of the conditions. Date of effect of decision 1. Ms Murray raised in her submissions the timing of the commencement of the conditions. Where conditions are imposed under the National Law, unless otherwise specified those conditions will come into effect on the date of the Tribunal's decision, unless otherwise specified: s 61 of the Civil and Administrative Tribunal Act. We decided not to exercise the power to specify that the conditions come into effect at a later date, because the amendment made to the audit conditions, obviates the practical difficulty of complying with those conditions if, Ms Murray does not practice as a pharmacist in the two month period after the date of this decision. Costs 1. In Health Care Complaints Commission v Murray (No 2) we ordered that Ms Murray pay 70% of the Commission's costs. Ms Murray seeks an order that she be given an extended period to pay the costs of the Commission. This is not a matter within our power to determine. This request should be directed to the Commission. Orders 1. Pursuant to s 149A of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on Ms Murray's registration for a period of 12 months or such longer period as determined by the Pharmacy Board of Australia (the Board): Pharmacist-in-Charge 1. Not to work in a pharmacy as the pharmacist in charge (see s 57 of the Pharmacy Act 2010 (WA)). Mentor relationship 1. Ms Murray must nominate a registered experienced pharmacist to act as her professional mentor for approval by the Board. The mentoring relationship is to continue for a minimum period of 12 months from the date of the Board's approval or appointment of the mentor, with the Board to determine if an additional period of mentoring is appropriate. 2. Ms Murray is to meet with the mentor at a frequency and for a period of time to be determined by the Board. 3. At each meeting Ms Murray is to review and discuss her practice with the mentor with a particular focus on compliance with her obligations pursuant to the Medicines and Poisons Act 2014 (WA) and Medicines and Poisons Regulations 2016 (WA). 4. Ms Murray is to authorise the mentor to report to the Board, in approved format approved by the Board every three months (or at such other period as determined by the Board) about the fact of contact, and to inform the Board if there is any concern about her professional conduct, health or personal wellbeing. 5. Ms Murray is to meet all costs associated with the mentoring conditions. 6. Ms Murray must provide the mentor with a copy of the decision made by the New South Wales Civil and Administrative Tribunal: Health Care Complaints Commission v Murray [2018] NSWCATOD 119. Notification of conditions 1. Within 21 days of the imposition of these conditions, Ms Murray must provide to the Australian Health Practitioner Regulation Agency (AHPRA), on the approved form (see https://www.ahpra.gov.au/registration/monitoring-and-compliance/national-restrictions-library.aspx) the contact details of the owner of any pharmacy in which she is engaged and/or any locum agency through which she obtains work as a pharmacist. In providing that form, Ms Murray acknowledges that AHPRA will contact the owner/locum agency and provide them with a copy of the conditions on her registration or confirm that the owner /locum agency has received a copy of the conditions from Ms Murray. In addition, Ms Murray must provide the approved form to APHRA: 1. within seven days of the commencement of practice at each and every subsequent place of practice; 2. within seven days of commencing with any new locum agency; and 3. within seven days of any variation to these conditions. Audit of practice 1. Ms Murray is to submit to an audit of her practice by a person nominated by the Board. 2. The first audit is to be undertaken no later than two months from the date of this decision, or within two months after her return from maternity leave and thereafter at a frequency determined by the Board. 3. The auditor is to examine and assess the following aspects of Ms Murray's practice: 1. dispensary systems; and 2. the storage, supply, recording and destruction of drugs including drugs of addiction. 1. Ms Murray is to authorise the auditor to provide the Board with a report on their findings. 2. Ms Murray is to meet all costs associated with the audit and any subsequent audits and reports required by the Board. 3. Ms Murray must provide the auditor with a copy of the decision, Health Care Complaints Commission v Murray [2018] NSWCATOD 119. Ethics 1. Within three months of the date of this decision Ms Murray is to commence the Ethics and Dispensing in Pharmacy Practice course offered by the Pharmaceutical Society of Australia (PSA), or an equivalent course approved by the Board. Hours of work 1. Unless approved by the Board, Ms Murray must not work as a pharmacist for more than 40 hours per week. 1. Whilst Ms Murray's principal place of practice is in New South Wales, the Pharmacy Council of New South Wales is to be the review body. Whilst Ms Murray works anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and in those circumstances, a review of these conditions can be conducted by the Pharmacy Board of Australia. ********** 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: 23 August 2019