Hamilton v Pharmacy Board of Australia
[2021] WASCA 223
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HAMILTON -v- PHARMACY BOARD OF AUSTRALIA [2021] WASCA 223
CORAM: BUSS P
MAZZA JA
HEARD: 23 DECEMBER 2021
DELIVERED : 23 DECEMBER 2021
FILE NO/S: CACV 109 of 2021
BETWEEN: FELECIA HAMILTON
Appellant
AND
PHARMACY BOARD OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE D R PARRY, DEPUTY PRESIDENT
MR J MANSVELD, SENIOR MEMBER
MS D PEARSON, SESSIONAL MEMBER
Citation: PHARMACY BOARD OF AUSTRALIA and HAMILTON [2021] WASAT 138
File Number : VR 95 of 2017
Catchwords:
Pharmacy - Disciplinary proceedings in State Administrative Tribunal - Appellant's registration as a pharmacist suspended - Whether a stay of suspension order should be granted pending determination of appeal
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 196(2)(d)
Result:
Application for a stay granted
Expedited appeal order made
Category: B
Representation:
Counsel:
| Appellant | : | Ms L B Black |
| Respondent | : | Ms F A Stanton & Ms J M McKenzie |
Solicitors:
| Appellant | : | Panetta McGrath Lawyers |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Khosa v Legal Profession Complaints Committee [2021] WASCA 34
JUDGMENT OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the transcript.)
The appellant has appealed to this court against a decision of the State Administrative Tribunal made on 20 October 2021.
On that date the Tribunal ordered relevantly that, pursuant to s 196(2)(d) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA), the appellant's registration as a pharmacist be suspended for a period of 2 years 6 months with effect from 19 December 2021.
The Tribunal ordered that the appellant's registration be suspended following the appellant's admission and the Tribunal's finding that the appellant had engaged in professional misconduct between 26 August 2008 and 30 April 2009 in connection with dispensing anabolic androgenic steroids to patients. The steroids were dispensed pursuant to prescriptions given by medical practitioners to the patients.
The appellant admitted and the Tribunal found that between 26 August 2008 and 30 April 2009 the appellant had engaged in the practice of dispensing anabolic androgenic steroids to patients:
(a)in quantities and combinations which the appellant ought to have known, but did not know, were not necessary for any therapeutic purpose; and
(b)by dispensing repeat authorisations and/or multiple prescriptions:
(i)in the same transaction; or
(ii)in separate transactions conducted significantly within the period in which the medication would have been consumed if taken at the usual dosage;
when the appellant:
(c)ought to have known, but did not know, that the quantities and/or combinations of medication supplied were likely to constitute an unacceptable hazard to health;
(d)knew that quantities and/or combinations of medication supplied had the potential for misuse and abuse; and
(e)ought to have known, but did not know, that the quantities and/or combinations of medication supplied had the potential for psychological and/or physical dependency.
The appellant relies upon two grounds in her appeal to this court. Ground 1 alleges, in essence, that the suspension of the appellant's registration as a pharmacist for a period of 2 years 6 months was manifestly excessive. Ground 2 alleges, in essence, that the Tribunal made an error in its fact finding.
By an application in an appeal filed on 21 December 2021, the appellant applied for a stay of the Tribunal's order to suspend the appellant's registration. The appellant filed an affidavit of the appellant affirmed on 21 December 2021 in support of the application.
The respondent opposes the appellant's application for a stay. The respondent filed an affidavit of Jenny Maree McKenzie, sworn on 23 December 2021, in support of its opposition.
Ms McKenzie's affidavit includes evidence in relation to facts and events which have occurred since the Tribunal made its decision on 20 October 2021. Evidence of those subsequent events (if, on which we express no opinion, the evidence is admissible for any purpose in the appeal) is not relevant to whether the Tribunal made the implied error alleged in ground 1 of the appeal. It is not readily apparent how evidence of those subsequent events (if, on which we express no opinion, the evidence is admissible for any purpose in the appeal) is relevant to the express error alleged in ground 2 of the appeal.
It is unnecessary, for the purposes of the appellant's application, to attempt to resolve any disputed issues of fact arising from the affidavits.
The parties have filed written submissions in relation to the appellant's application.
The principles applicable to the appellant's application are set in Khosa v Legal Profession Complaints Committee[1]. It is unnecessary to repeat them.
[1] Khosa v Legal Profession Complaints Committee [2021] WASCA 34.
We are of the opinion that it is in the interests of justice, having regard to those principles, for a stay of the operation of order 2 of the State Administrative Tribunal's orders dated 20 October 2021 to be granted.
We consider, provisionally at this preliminary stage, that the appellant has reasonably good prospects of establishing that the suspension of her registration as a pharmacist for a period of 2 years 6 months was manifestly excessive.
In addition, we are satisfied, having regard to the Tribunal's findings, that the balance of convenience favours the grant of a stay.
We refer, in particular, to the following:
(a)The appellant has been practising as a pharmacist since about 6 December 2000.
(b)The professional misconduct occurred more than 12 years ago during a period of 8 months in 2008 and 2009. Prior to the Tribunal's decision on 20 October 2021, the appellant's right to practise had not been subject to any relevant restriction or limitation.
(c)The appellant does not have any other disciplinary record.
(d)The appellant is not currently subject to any investigation by the disciplinary authorities.
(e)The appellant is no longer incompetent in relation to the dispensing of anabolic androgenic steroids.
(f)The evidence before the Tribunal was overwhelmingly to the effect that the appellant is a generally competent pharmacist and, indeed, has particular skills, including in complex compounding of medications, that have been of great benefit to her patients' health outcomes.
(g)The suspension of the appellant's registration for a substantial period would have a devasting financial impact on the appellant.
(h)The hearing of the appeal should be expedited. The appeal will be heard on 12 April 2022. The court will make programming orders to enable that to occur.
We consider that those facts and circumstances, in combination, decisively outweigh the facts and circumstances relied upon by the respondent in relation to the balance of convenience.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
29 DECEMBER 2021
0
1
0