Hamilton v Pharmacy Board of Australia [No 2] - [2022] WASCA 155

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HAMILTON -v- PHARMACY BOARD OF AUSTRALIA [No 2] [2022] WASCA 155
CORAM:   BUSS P
MAZZA JA
FRASER AJA

HEARD:   12 APRIL 2022
DELIVERED          :   2 DECEMBER 2022
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:

Professions and the Trades - Pharmacist - Disciplinary proceedings before State Administrative Tribunal - Findings that the appellant engaged in professional misconduct - Appellant engaged in the practice of dispensing anabolic androgenic steroids to patients pursuant to prescriptions written by medical practitioners - Appellant dispensed the drugs for a purpose which the appellant knew did not accord with recognised therapeutic standards - Appellant ought to have known, but did not know, that the drugs were not necessary for any proper therapeutic purpose - Appellant ought to have known, but did not know, that the drugs were likely to constitute an unacceptable hazard to health of patients and/or others to whom those drugs could be on–sold - Appellant knew that the drugs had the potential for misuse or abuse - Appellant ought to have known, but did not know, that the drugs had the potential for psychological and/or physical dependency - Tribunal suspended the appellant's registration as a pharmacist for a period of 30 months - Tribunal found by inference that the appellant deliberately gave false testimony in a material respect - Whether the Tribunal erred in fact in finding that the appellant deliberately gave false evidence

Legislation:

Health Practitioner Regulation National Law
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Pharmacy Act 1964 (WA) (repealed)
State Administrative Tribunal Act 2004 (WA)

Result:

Appellant granted leave to appeal on ground 2
Appellant refused leave to appeal on ground 1
Appellant's appeal allowed
Respondent's application for leave to appeal refused
Appellant's application for leave to adduce additional evidence refused
Order 2 of the orders made by the Tribunal on 20 October 2021 set aside

Substituted order made suspending the appellant's registration as a pharmacist for a period of 12 months

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):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Baker v University of Ballarat [2005] FCAFC 201; (2005) 225 ALR 218
Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778
CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172
Chang v Legal Profession Complaints Committee (No 2) [2020] WASCA 208
Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Ex parte Currie; Re Dempsey [1968] 2 NSWR 378; (1968) 70 SR NSW 1
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Epstein (No 2) [2015] NSWCATOD 36
Health Care Complaints Commission v Epstein [2015] NSWCATOD 21
Health Care Complaints Commission v Zacharia, unreported, NSW Medical Tribunal, 20 December 2011
Hegde v Pharmacy Board of Australia [2020] WASC 384
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Law Society of New South Wales v McNamara (1980) 47 NSWLR 72
Medical Board of Australia and Singh [2017] WASAT 33
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Medical Board of Australia v Grant [2012] QCAT 285
Medical Board of Australia v Hadges [2018] SAHPT 6
Medical Board of Australia v Marzola [2020] SACAT 116
Medical Board of Australia v Owen [2021] SACAT 7
Medical Board of Australia v Tunbridge [2020] SACAT 34
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Nadkarni v Medical Board of Australia [2022] WASCA 109
Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Pharmacy Board of Australia and Hamilton [2021] WASAT 138
Richter v Walton [1993] NSWCA 233
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128
Saunders v The Public Trustee [2015] WASCA 203
Singh v Medical Board of Australia [2018] WASCA 125
Singh v Medical Board of Australia [2019] WASCA 51
Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256
The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Watson v Foxman (1995) 49 NSWLR 315
Young v Legal Professional Complaints Committee [2022] WASCA 52

BUSS P:

I agree with Fraser AJA.

MAZZA JA:

I agree with Fraser AJA.

FRASER AJA:

On 16 May 2017 the respondent (the Board) commenced a professional disciplinary proceeding against the appellant (Ms Hamilton), a pharmacist, under the Health Practitioner Regulation National Law (National Law), which is a schedule to and applied as a law of Western Australia by the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the HPR Act).
The Board alleged that Ms Hamilton behaved in a way that constituted professional misconduct, as defined in s 5 of the National Law, in the period 26 August 2008 to 30 April 2009 by engaging in the practice of dispensing anabolic androgenic steroids to a total of 49 patients over 586 dispensing incidents at Hamilton's Health Performance Pharmacy (subsequently known as Hamilton's Compounding Pharmacy) in Canning Vale (pharmacy).
Pursuant to s 193(2)(a)(i) of the National Law, the matter was referred to the State Administrative Tribunal (Tribunal), which s 6 of the HPR Act declares to be the 'responsible tribunal' for Western Australia for the purposes of the National Law. The matter was listed for a hearing before the Tribunal over four days. The Board adduced in evidence an affidavit of Dr Robin Durston and reports provided by Ms Liza Seubert, a pharmacist. Dr Durston and Ms Seubert were cross-examined and re-examined. In the case for Ms Hamilton, a statement by her was admitted into evidence and she was cross‑examined. On the fourth day of the hearing, 11 July 2019, the parties informed the Tribunal they had agreed upon orders as to the facts and findings to be made against Ms Hamilton, leaving only penalty and costs to be determined.

On 12 July 2019, the parties filed a minute which set out agreed facts at [1] ‑ [13] and agreed findings of professional misconduct by Ms Hamilton at [14]. The agreed findings were defective because of the use of the expression 'knew, or ought to have known' throughout, rather than expressions which distinguished between matters Ms Hamilton knew and matters she ought to have known. Following directions hearings and the listing for hearing of the substantive issues, the parties resolved the issue about knowledge. On 23 July 2020, the parties filed a minute which contained an admission by Ms Hamilton that, by reason of the agreed facts (with one correction of a mistaken date), Ms Hamilton had engaged in professional misconduct. The agreed facts were reproduced in an annexure to the following order (the conduct order) made by the Tribunal on 29 January 2021 upon the conclusion of a two-day hearing in relation to penalty and costs:
The Tribunal finds that by reason of the agreed facts set out at [1] ‑ [13] of Annexure A, the respondent engaged in professional misconduct as defined in s 5 of the Health Practitioner Regulation National Law which is the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) in that, in the period 26 August 2008 to 30 April 2009, she:
(a)engaged in the practice of dispensing anabolic androgenic steroids to patients for a purpose which the respondent knew did not accord with recognised therapeutic standards;
(b)engaged in the practice of dispensing anabolic androgenic steroids to patients in quantities and/or in combinations which the respondent:
(i)ought to have known, but did not know, were not necessary for any proper therapeutic purpose;
(ii)ought to have known, but did not know, were likely to constitute an unacceptable hazard to the health of patients and/or others to whom those drugs could be on-sold;
(iii)knew had the potential for misuse and abuse; and
(iv)ought to have known, but did not know, had the potential for psychological and/or physical dependency; and
(c)engaged in the practice of dispensing anabolic androgenic steroids to patients by dispensing repeat authorisations and/or multiple prescriptions:
(i) in the same transactions; 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 respondent:
(iii)ought to have known, but did not know, that the quantity and/or combination of the drugs supplied was likely to constitute an unacceptable hazard to the health of patients and/or others to whom those drugs could be on-sold;
(iv) knew had the potential for misuse and abuse; and
(v)ought to have known, but did not know, had the potential for psychological and/or physical dependency.
On 20 October 2021 the Tribunal published reasons for its decisions on penalty and costs.[1] The Tribunal ordered:
(1)Pursuant to s 196(2)(a) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) the respondent is reprimanded in relation to the professional misconduct referred to in the Tribunal's order dated 29 January 2021.
(2)Pursuant to s 196(2)(d) of the National Law, the respondent's registration as a pharmacist is suspended for a period of 30 months with effect from 19 December 2021.
(3)Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the respondent is to pay the applicant's costs of this proceeding fixed in the sum of $95,649.70, such costs to be paid by no later than 31 December 2021 or such further period as agreed by the applicant.
[1] Pharmacy Board of Australia and Hamilton [2021] WASAT 138.
Ms Hamilton has applied for leave to appeal against those orders. The Board has applied for leave to cross‑appeal. The Board has also applied for leave to adduce additional evidence. After the Board filed that application, Ms Hamilton filed an application for leave to adduce responsive evidence.
Neither party challenges the reprimand in order 1. Order 2 is in issue in the appeal and the cross-appeal. The result of the contest about order 2 might bear upon order 3 but otherwise it is not in issue. On 23 December 2021, this court made an order staying the operation of order 2 of the Tribunal's orders dated 20 October 2021 until determination by the court of Ms Hamilton's appeal (including her application for leave to appeal) or further order of the court.

Disposition

For the following reasons I propose these orders:
(a)Grant the appellant leave to appeal on ground 2 in her notice of appeal.
(b)Allow that appeal.
(c)Refuse the respondent's application for leave to appeal and its application for leave to adduce additional evidence.
(d)Refuse the appellant’s application for leave to adduce additional evidence.
(e)Set aside order 2 made by the Tribunal on 20 October 2021.
The court will hear counsel as to the precise form of the orders that should be made to give effect to these reasons, including any orders that may be required having regard to the orders made by this court on 23 December 2021 and any orders concerning the costs of the proceedings in this court.

The agreed facts

The first three paragraphs of the agreed facts in Annexure A of the order made on 29 January 2021 described the establishment and functions of the Board, Ms Hamilton's date of birth (she was 32‑years‑old during the period when she engaged in the admitted professional misconduct and 45‑years‑old when the Tribunal made the penalty order), and Ms Hamilton's pharmacist registration number. The other agreed facts are as follows:
4.The respondent was first registered as a pharmacist on 6 December 2000 and has held continuous registration since that date.
5. At all material times, the respondent held registration as a pharmaceutical chemist pursuant to the Pharmacy Act 1964 (WA) (repealed).
6. The respondent was, at all material times:
(a)the sole proprietor of Hamilton's Health Performance Pharmacy also known as Hamilton's Compounding Pharmacy in Canning Vale, Western Australia (Pharmacy); and
(b)the principal pharmacist and holder of the poisons licence at the Pharmacy.
Dispensing of anabolic androgenic steroids
7. A pharmacist must exercise professional independent judgment to prevent the supply of products likely to constitute an unacceptable hazard to health or the supply of unnecessary and/or excessive quantities of medicines and other products, particularly those which have a potential for abuse or dependency.
Particulars
Pharmaceutical Society of Australia Code of Professional Conduct 1998, 1.3
8. A pharmacist shall not supply or permit to be supplied any substance in circumstances where the pharmacist knows or could reasonably be expected to know that it is required for other than a legitimate use.
Particulars
Pharmaceutical Society of Western Australia Code of Ethics July 2000, 2.8
9. In the period 26 August 2008 to 30 April 2009, the respondent engaged in the practice of dispensing anabolic androgenic steroids to patients:
(a)in quantities and combinations which the respondent 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 respondent:
(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.
10.The anabolic androgenic steroids referred to in paragraph 9 above were dispensed by the respondent in the form of Deca Durabolin, Sustanon, Andriol, Primoteston, Proviron and Reandron.
Particulars
The details of the anabolic androgenic steroids dispensed by the respondent are set out in Schedule A. [Schedule A identifies, for each of the occasions when anabolic androgenic steroids was dispensed, the date it was dispensed, the patient (identified only by a number), the form of the steroid dispensed, and the quantity dispensed.]
11.Anabolic androgenic steroids can be used to achieve greater muscle mass and the respondent knew that they have the potential to be:
(a) misused by patients seeking to increase muscle mass;
(b) misused by patients seeking to enhance sporting ability; and
(c) on-sold by patients who obtain anabolic androgenic steroids on prescription to others.
12.Potential adverse side effects of use of anabolic androgenic steroids or excessive or prolonged use of anabolic androgenic steroids include (but are not limited to):
(a) acne;
(b) high blood pressure;
(c) increased low-density lipoprotein and/or decreased high-density lipoprotein;
(d) liver damage;
(e) cardiovascular disease;
(f) gynaecomastia;
(g) testicular atrophy; and/or
(h) increased aggression.
13. Dr Saliem Ismail and Dr Robin Durston were the main prescribers of the anabolic steroids referred to in 9 and 10 above.
…

The Tribunal's reasons

The Tribunal first resolved an issue about the applicable law. The admitted professional misconduct occurred when Ms Hamilton was registered as a pharmaceutical chemist under the Pharmacy Act 1964 (WA) (repealed) before the National Law commenced on 18 October 2010. The Tribunal concluded it was required to determine the characterisation of Ms Hamilton's conduct and the consequential penalty under s 196 of the National Law rather than under s 32 of the Pharmacy Act. The Tribunal also recorded its view that in this case nothing turned upon which of those laws applied [55]. These matters are not in issue in this court.
At the hearing in relation to the issues of penalty and costs, Ms Hamilton gave evidence and was cross-examined, and three of 15 people who gave character references were cross-examined. In the determination of penalty, the Tribunal took into account the agreed facts, the findings it made with reference to the evidence at the penalty hearing, and the evidence at the earlier conduct hearing.
The Tribunal described Ms Hamilton's professional qualifications. She completed a Bachelor of Pharmacy degree in 1999. In 2006 she completed a course of part‑time study over a year to obtain a postgraduate qualification in Sports Medicine Nutrition and Pharmacology from the University of New South Wales (UNSW). In 2008, shortly after Ms Hamilton established a pharmacy in Canning Vale (the pharmacy), she completed the introduction and advanced level compounding courses through Professional Compounding Chemists of Australia in Sydney. She did so because she 'wanted to find a niche in the market that distinguished [her] from other health providers'. In 2009 she completed a Veterinary Pharmacist advanced compounding course, which qualified her 'to make remedies from scratch that are still in demand in both humans and in animals' [60].
The Tribunal referred to Ms Hamilton's work in pharmacies after she was first registered as a pharmacist on 6 December 2000 and to the circumstances in which she opened the pharmacy in Canning Vale in September 2008 [61] ‑ [65]. The Tribunal referred to the practitioner's husband suffering from a genetic illness for which he was being medicated with androgens when Ms Hamilton first met him [64]. After referring to their love of sports and training, usually in a gym, the Tribunal recorded that they had competed in body building/figure fitness competitions, the last such competition being in October 2009. The evidence showed that three of the 49 patients to whom the practitioner dispensed steroids which were the subject of the conduct order were fellow competitors with Ms Hamilton and her husband in body building/figure fitness competitions [66].
The Tribunal did not accept evidence by Ms Hamilton that she was 'naive' and 'overly trusting' of patients and doctors when she engaged in the admitted professional misconduct [70]. The Tribunal accepted Ms Hamilton and her husband did not use anabolic androgenic steroids to achieve success in competitions but found at [70] that Ms Hamilton knew 'some athletes abused these substances outside of their therapeutic use and outside therapeutic standards'. At [72] the Tribunal found:
(a)'… the practitioner deliberately ignored the potential for abuse of the large quantities of anabolic androgenic steroids she dispensed, thereby exposing her patients to the potential adverse side effects of the use of anabolic androgenic steroids, or excessive or prolonged use of anabolic androgenic steroids, set out in the agreed facts at [12], when she committed the professional misconduct …'.
(b)The Tribunal did not accept the Board's submission, that the practitioner deliberately marketed her practice to body builders, but the Board found, 'it is obvious that fellow body builders who knew or knew of the practitioner sought her out and presented their prescriptions, principally by Dr Saliem Ismail and Dr Robin Durston, to the practitioner to be dispensed'.
(c)'The practitioner conceded in cross-examination that even before she officially opened the pharmacy on 1 September 2008, the pharmacy's sixth dispensing episode involved dispensing anabolic androgenic steroids. This was the first dispensing episode in the practice of dispensing anabolic androgenic steroids constituting the professional misconduct … This instance was followed half way through the first month after opening the pharmacy by two further dispensing episodes (the 51^st and 64^th dispensing episodes of the pharmacy). The practitioner also conceded that "I certainly did recognise some of the patients who came into fill their prescriptions by acquaintance only, through my own involvement with the gym and in sporting competitions"'.
(d)'Overall, the evidence shows that the practitioner's dispensing of anabolic androgenic steroids to patients for a purpose for which she knew did not accord with recognised therapeutic standards constituted 28% of the dispensing episodes of the pharmacy over its first eight months from 26 August 2008 to 30 April 2009. The practitioner's dispensing of anabolic androgenic steroids to patients for a purpose which she knew did not accord with recognised therapeutic standards amounted to a significant proportion of her dispensing practice during the first eight months'.
(e)'Rather than being "naive" or "overly trusting" the practitioner knew that the purpose for which she dispensed the steroids did not accord with recognised therapeutic standards and that the quantities and/or combinations in which she dispensed them had the potential for misuse and abuse. The practitioner deliberately ignored the potential for misuse and abuse of the drugs by her patients and others to whom they could be on-sold. Furthermore, the overwhelming inference on the evidence is that the reason she did so was to make money in circumstances where she "really struggled to just keep the doors open", having established the pharmacy without an existing customer base and PBS accreditation, and at the time of the GFC'.

The Tribunal referred to Ms Hamilton's evidence that '[i]f I had any concerns or doubt about the validity of any prescription, the medication prescribed, the dose or the instructions for use, I would routinely call the prescribing doctor [relevantly Dr Durston] to discuss the matter' and that 'I spoke to Dr Durston … on multiple occasions when I needed … clarification' [82] (original emphasis). The Tribunal found that Ms Hamilton's testimony that when she needed clarification about the validity of any prescription, the medication prescribed, the dose or instructions for use 'I would routinely call' Dr Durston and 'I spoke to Dr Durston … on multiple occasions' was 'deliberately false, that is, a lie' [79].
The Tribunal found there was a significant decline in dispensing of anabolic androgenic steroids at the pharmacy; such dispensing constituted approximately 28% of all dispensing episodes in the period 26 August 2008 to 30 April 2009, it constituted only 2% of all dispensing episodes in the period from 2010 to 2019, and in 2020 up to 11 November 2020 there had been only nine hormone prescriptions dispensed in 3,270 dispensing episodes at the pharmacy [88]. The Tribunal found at [88] 'we do not accept' Ms Hamilton's evidence, or the submission made on her behalf, that the significant decline in dispensing anabolic androgenic steroids from 2010 onwards occurred as a result of self-motivated rehabilitation of Ms Hamilton following 'the event' Ms Hamilton said had occurred some time in 2009.
The Tribunal gave two reasons for that finding:
(a)The evidence given by Ms Hamilton in this respect included two statements which the Tribunal found were 'untrue' (at [89] and [91]):
(i)The first untrue statement was that '[a]s a consequence [of the incident], I also immediately ceased dispensing multiple prescriptions for patients that were prescribed steroids by either Dr Ismail or Dr Durston on their authorisation' [89]. Evidence put to Ms Hamilton in cross-examination established she had dispensed multiple prescriptions written by Dr Ismail or Dr Durston in short periods of time and multiple agents on the same day in 2010 and 2012.
(ii)The second untrue statement was that '[f]rom that incident, it became clear to me that it was likely that the reasons proffered by … Dr Durston regarding the need for multiple prescriptions were [sic] possibly not accurate or were even misleading and untrue' [91]. The Tribunal considered that underlying that statement was Ms Hamilton's earlier evidence, which the Tribunal had found to be untrue, that she 'routinely' and on 'multiple occasions' spoke to Dr Durston when she needed clarification.
(b)The real reason for the decline in dispensing of anabolic androgenic steroids from the pharmacy was that Dr Durston and Dr Ismail ceased to be prescribers. As a result of a report of 26 June 2009 focusing on the prescription of anabolic androgenic steroids by medical practitioners, Dr Durston ceased prescribing steroids in about July 2009. He was subsequently suspended for periods totalling two and a half years and made subject to conditions which restricted his prescribing. Dr Ismail was suspended from practice on 7 March 2014 in consequence of disciplinary action arising out of his prescription of potentially harmful drugs, including significant amounts of anabolic androgenic steroids. His registration as a medical practitioner was cancelled by consent on 8 October 2014.
At [94], the Tribunal recorded it did 'not accept' Ms Hamilton's evidence that the patients who could no longer obtain prescriptions from Dr Ismail or Dr Durston went to other doctors who prescribed anabolic androgenic steroids in essentially the same quantities and repeats and presented those prescriptions to the practitioner, who, after 'the incident' refused to dispense the drugs.
The Tribunal found:
(a)As to Ms Hamilton's professional misconduct:
(i)Ms Hamilton's professional misconduct was very serious and entirely unacceptable and inconsistent with the competent and ethical practice of pharmacy. It involved 'a fundamental failure of competent and ethical practice as a pharmacist' [118].
(ii)There was no evidence of physical harm suffered by any patient or any other person but the professional misconduct exposed Ms Hamilton's patients and others to whom the drugs may have been on-sold to potential serious adverse side effects, including acne, high blood pressure, increased low‑density lipoprotein and/or decreased high‑density lipoprotein, liver damage, cardiovascular disease, gynaecomastia, testicular atrophy and increased aggression [113].
(iii)The professional misconduct was not an isolated incident or series of isolated incidents, but a course of conduct over eight months, involving 49 patients and 586 dispensing episodes, being approximately 28% of all dispensing episodes during the first eight months of operation of the pharmacy [114].
(iv)The first line of defence against misuse or abuse of medications is the prescribing doctor and a pharmacy is the last line of such defence. Ms Hamilton did not act in that way. She simply dispensed the drugs requested by the patients, even though she was requested to dispense them in larger quantities or combinations, or in accordance with the repeat authorisations or multiple prescriptions in the same transactions or in separate transactions which were conducted significantly within the period in which the medication would have been consumed if taken at the usual dosage. Ms Hamilton thereby exposed the patients and others to serious potential harm to their health and wellbeing. She deliberately ignored the potential for misuse and abuse of the drugs by her patients and others to whom they could be on-sold when presented with hundreds of prescriptions for anabolic androgenic steroids by 49 patients over a substantial period of time [115].
(v)The practitioner engaged in the professional misconduct for financial gain, when she was struggling to keep the doors of the pharmacy open [116].
(b)Ms Hamilton's incompetence in relation to dispensing anabolic androgenic steroids which is reflected in the conduct order had been cured, so she was no longer incompetent in that regard [129].
(c)Ms Hamilton ultimately demonstrated some insight and remorse by consenting to the findings of professional misconduct and, to some extent, in the evidence she gave at the penalty hearing [121].
(d)The Tribunal did not accept the submission for Ms Hamilton that the evidence showed she 'has owned her misconduct' [121]:
(i)Ms Hamilton stated she had admitted having breached the professional standards she was obliged to uphold, she had learned from the mistakes of that period, and she was not the same pharmacist she was in 2008 when she was fresh to the experience of starting her own business and much less confident about herself [122].
(ii)The weight to be given to Ms Hamilton's insight and remorse was reduced by the fact she disputed she had committed professional misconduct for almost four years after being notified of the matter by AHPRA on 6 August 2015 and her admission was made only on the fourth day of a contested conduct hearing [123].
(iii)The weight to be given to Ms Hamilton's insight and remorse was further reduced by evidence she gave in cross-examination that she was 'forced' to admit she engaged in professional misconduct because otherwise she would be 'financially bankrupt and taken for everything' [123] ‑ [124].
(iv)The insight and remorse Ms Hamilton demonstrated by ultimately admitting she had engaged in professional misconduct was 'grudging, rather than heartfelt, and motivated, to some extent at least, by financial considerations' [124].
(e)The weight to be given to the character references in relation to Ms Hamilton's character and honesty was greatly reduced, because none of the referees had detailed knowledge of her professional misconduct, 10 of the 15 referees had no knowledge of it [99], and two of the referees were medical practitioners who had professional disciplinary histories that reflected adversely on their own character and honesty [103] ‑ [104].
(f)The pharmacy had been audited by the Health Department in September 2010, February 2012 and September 2017 and the pharmacy was never criticised for its practices [95].
(g)In the 12 years Ms Hamilton operated the pharmacy, she had built close networks with many health professionals, to enhance a patient's health and wellbeing using a total body approach and a shared common goal for treatment [95]. The character references evidenced Ms Hamilton's present competence and skills as a pharmacist. She had 'particular skills, including in complex compounding of medications, that have been of great benefit to her patients' health outcomes' [130]. Ms Hamilton had specialist knowledge and experience in complex compounding, and those skills were sought after and valued by her patients and by some medical practitioners with whom she collaborated in relation to patient care [132].
(h)Suspension or cancellation of Ms Hamilton's registration would preclude her from providing the complex compounding service she provides and which her patients value. Whilst the complex compounding services would be available to the practitioner's patients elsewhere, that might perhaps be not as convenient [132].
(i)Cancellation or suspension of Ms Hamilton's registration for a substantial period would have a devastating financial and emotional impact on her and her family [133].
The Tribunal made the following observations about the appropriate disciplinary consequence of the admitted professional misconduct:
(a)In determining the appropriate penalty for professional misconduct under s 196(2) to s 196(4) of the National Law, an entity (including the Tribunal) is required by s 4 of the National Law 'to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3'; and the objectives of that scheme, under s 3(2)(a) of the National Law, include 'to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered'.
(b)At [105] the Tribunal adopted as principles relevant in professional disciplinary proceedings against pharmacists under the National Law the principles articulated in Singh v Medical Board of Australia.[2]
[2] Singh v Medical Board of Australia [2019] WASCA 51 [30] ‑ [45] (Quinlan CJ; Pritchard JA & Allanson J agreeing).
(c)The Tribunal derived no substantive assistance from six disciplinary determinations to which the Board referred, which involved anabolic androgenic steroids; five of them related to prescribing doctors rather than dispensing pharmacists, and the facts of the 'very, very extreme' case relating to a pharmacist were significantly different from the facts of the present case [106].
(d)For the penalty to effectively protect the public, it must make clear to Ms Hamilton the seriousness of her misconduct and deter her from future breaches, and it also must make clear to other members of the pharmacy profession, and reassure the public, that the misconduct is unacceptable and inconsistent with the competent ethical practice of pharmacy [117].
(e)The fact that Ms Hamilton had no disciplinary history or any other disciplinary allegation made against her in over 21 years in practice is a relevant mitigating factor in terms of penalty [119].
(f)The Tribunal rejected a submission for Ms Hamilton that there was no need for specific deterrence and held two factors indicated a need for specific deterrence to bring home to Ms Hamilton the seriousness of her misconduct and to deter her from future breaches [127]:
(i)Her evidence in cross-examination indicated that her insight and remorse was grudging, rather than heartfelt, and motivated, to some extent at least, by financial considerations.
(ii)'Furthermore, as we found earlier, the practitioner was untruthful in the evidence she gave in her witness statement in two respects'.
(g)The six disciplinary determinations to which the Board referred made it clear that anabolic androgenic steroids are highly sought after by some people who wish to achieve greater muscle mass [128]. Agreed fact [11] included admissions by Ms Hamilton that she knew these drugs had the potential to be misused in the described ways. There is a financial incentive for a pharmacist to dispense these drugs and dispensing these drugs in large quantities and in combinations increases the financial incentive. In these circumstances, the penalty must be adequate and appropriate to deter other pharmacists from engaging in similar professional misconduct [128].
(h)As to the devastating financial and emotional impact upon Ms Hamilton and her family of a substantial period of suspension of her registration, the Tribunal observed, quoting from Singh v Medical Board of Australia,[3] 'while the personal circumstances of the practitioner are a relevant consideration, the weight to be afforded to personal circumstances cannot override the fundamental obligation of the disciplinary tribunal or court to provide appropriate protection of the public' [133].
(i)The Tribunal accepted that the disciplinary proceeding had been stressful and expensive for Ms Hamilton but noted that in response to the first letter of 6 August 2015 from the Australian Health Practitioner Regulation Agency (AHPRA), Ms Hamilton had maintained a denial that she committed professional misconduct for almost 4 years up until she admitted her professional misconduct on the fourth day of the contested conduct hearing [126].
[3] Singh v Medical Board of Australia [2018] WASCA 125 [33] (Murphy & Mitchell JJA).
The Tribunal did not accept the contention by the Board that the appropriate disciplinary consequence of Ms Hamilton's professional misconduct was cancellation of her registration and imposition of a period of disqualification from applying for registration of five years. The Tribunal was not satisfied that Ms Hamilton was either permanently or indefinitely unfit to practise as a pharmacist; accepting that Ms Hamilton's conduct in knowingly dispensing anabolic androgenic steroids for non-therapeutic purposes was grossly improper and the findings in the conduct order which demonstrated that at the time of that conduct she had been incompetent in that respect, the Tribunal was satisfied that Ms Hamilton was currently generally competent as a pharmacist. The Tribunal recorded that although it 'found that the practitioner gave untruthful evidence in relation to two matters', it did not accept the Board's submission that she lacked the character and trustworthiness necessary to discharge the responsibilities of the practice of pharmacy such that she was permanently or indefinitely unfit to practise that profession and her registration posed a risk to the public of dishonesty with regulatory authorities [136].
The Tribunal concluded that in order to effectively protect the public in their dealings with pharmacists, the appropriate disciplinary consequence was that which the Tribunal imposed (reproduced at [7] above); any lesser period of suspension would not be adequate to provide 'effective specific and general deterrence and protect the public who require the services of pharmacists' [137].

Ms Hamilton's appeal

Leave to appeal is required by s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). Section 105(2) provides that an appeal from a decision of the Tribunal can only be brought on a question of law. In a case of the present kind, that provision is qualified by the provision in s 105(13), that if the Tribunal's decision has the effect of depriving a person of the person's capacity to lawfully pursue a vocation, an appeal may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact. The legal effect of the suspension of Ms Hamilton's registration as a pharmacist deprived Ms Hamilton of her capacity to lawfully pursue her vocation as a pharmacist. Accordingly, there is no statutory restriction of the grounds upon which Ms Hamilton may appeal by leave.[4]
[4] Paradis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [48] (Buss JA; Wheeler & Pullin JJA agreeing).
Ground 1 of Ms Hamilton's notice of appeal contends that the Tribunal's decision to suspend Ms Hamilton's registration as a pharmacist for a period of 30 months was unreasonable or plainly unjust. It is appropriate to first discuss ground 2, which contends for a specific error.

Ms Hamilton's appeal: ground 2

Ground 2 contends that the Tribunal 'erred in fact by finding at [79] that it was to be inferred that the appellant gave deliberately false testimony by stating, in effect, that she would routinely call Dr Durston and would speak with Dr Durston on multiple occasions when she needed clarification. The learned Tribunal should have instead found that the appellant's testimony in that regard was simply mistaken'.
At [77] the Tribunal referred to Ms Hamilton's evidence that '[i]f I had any concerns or doubt about the validity of any prescription, the medication prescribed, the dose or the instructions for use, I would routinely call the prescribing doctor to discuss the matter with the patient's consent' and that 'I spoke to Dr Durston and to Dr Ismail on multiple occasions when I needed this clarification' (original emphasis). The Tribunal also referred to Ms Hamilton's evidence that she could not say how many times exactly she spoke to Dr Durston and Dr Ismail because she no longer had the prescription records they wrote at that time, and her evidence that when she spoke with Dr Ismail she would describe his approach as 'quite holistic and investigative', whereas Dr Durston was 'less approachable and communicative when I spoke to him' and '[w]hilst he would take my call as would all doctors I rang, I would describe him as abrupt'.
At [78] the Tribunal referred to Ms Hamilton's following evidence:
During the period 2008 and 2009 it became apparent to me that Dr Ismail and Dr Durston were the main prescribers of the prescriptions for steroid hormones being presented at my pharmacy. I also received prescriptions from these doctors for other medications in addition to those for steroid hormones.
On every occasion that I contacted either of the two doctors about a prescription for a steroid hormone, I was given the doctor's assurance that all was in order with monitoring patient care, and it was the prescriber who had authorised the clinical need for their patients.
Dr Durston was uncooperative and intimidating to speak with. When he confirmed that he had authorised the prescription I rang him about, he finished the call quickly and hung up and left me in no doubt that he did not appreciate my inquiry.
Given the period of time that has elapsed since the time of the offence, because I no longer have all the relevant records, I cannot recall the specifics of the particular patients I rang Dr Durston about, or the specific nature of each of my concerns that may have arisen in relation to any particular prescription, nor the details of our discussion about their patients.
At [79] the Tribunal recorded it accepted a submission by the Board that Ms Hamilton's testimony 'that "I would routinely call" and that "I spoke to Dr Durston … on multiple occasions when I needed … clarification" is deliberately false, that is a lie'. The Tribunal was persuaded Ms Hamilton 'lied in her evidence in this respect for the reasons which follow'.

Those following reasons are at [80] ‑ [84]:
As indicated earlier, Dr Durston gave evidence in the form of an affidavit and was cross-examined at the conduct hearing. In his affidavit, Dr Durston candidly conceded that he had been subject to disciplinary action taken by the Medical Board of Western Australia and by the Medical Board of Australia, as a result of which his registration as a medical practitioner was suspended between 26 December 2009 and 25 June 2011 and again from 16 September 2013 to 15 September 2014. Dr Durston said that he 'became involved in prescribing steroids to bodybuilders as a result of joining Dr Anish Singh in a medical practice he had opened in Northbridge in 1992'. Dr Durston gave evidence that he 'ceased prescribing steroids in or about July 2009' and that, as a result of the disciplinary action against him, his 'registration is now subject to prescribing conditions'. Dr Durston gave the following evidence in relation to the practitioner:
I do not personally know Felecia Hamilton. I have never met her, I have never spoken to her on the telephone and I have never written to her in relation to any matter.
Dr Durston was cross-examined at length during the conduct hearing in relation to his evidence set out immediately above. As Mr B D Havilah, who appeared on behalf of the practitioner at the penalty hearing, submits:
… [I]n cross-examination by Mr [A P] Hershowitz [who appeared on behalf of the practitioner at the conduct hearing], Dr Durston conceded that:
(a)he had spoken to dozens and dozens of allied health professionals regarding his patients;
(b) he could not independently recollect who he had spoken to about a particular patient 10 or 12 years ago; and
(c) he could not definitely say that Ms Hamilton had not called him but he did not recall it.
The submission set out immediately above correctly summarises Dr Durston's evidence under cross-examination on 8 July 2019 at pages 42 ‑ 45 of the transcript. Mr Havilah submits that '[f]or this reason, the [practitioner] says that making a finding of fact that [the practitioner] had never spoken to Dr Durston on the basis of his admitted unreliable recollections is simply not justified'. We accept this submission. However, the issue is not whether we are satisfied that the practitioner never spoke to Dr Durston, but rather whether we accept the practitioner's evidence that '[i]f I had any concerns or doubt about the validity of any prescription, the medication prescribed, the dose or the instructions for use, I would routinely call the prescribing doctor [relevantly Dr Durston] to discuss the matter' and 'I spoke to Dr Durston … on multiple occasions when I needed … clarification'.
Dr Durston conceded in cross-examination that 'I cannot definitively say [that the practitioner never called him], but I do not recall it'. Dr Durston also said in the same passage of cross-examination that 'I receive very few phone calls from pharmacists and I receive no phone calls questioning doses' and that '[i]t might be remotely possible [that the practitioner called him from time to time to discuss a particular prescription in relation to some of her patients], but normally if you get a call from a pharmacist you remember it' and 'I do not recall speaking to her'. Dr Durston's evidence, taken as a whole, is inconsistent with the practitioner's evidence that if she had any concerns or doubt she would 'routinely call' the prescribing doctor (relevantly Dr Durston) and that she spoke to Dr Durston on 'multiple occasions … when I needed … clarification'. Had the practitioner spoken to Dr Durston 'on multiple occasions' about his prescription of anabolic androgenic steroids, it is likely that he would recall having spoken to her on at least one occasion, given that he receives 'very few phone calls from pharmacists' and that 'normally if you get a call from a pharmacist you remember it'.
We accept and prefer Dr Durston's evidence over the practitioner's evidence in this respect. As the Board submits, 'Dr Durston has no interest in these proceedings or their outcome and can be regarded as an independent witness in relation to the matters about which he gave evidence'. As the Board also submits, Dr Durston does not know the practitioner and 'had no axe to grind with her'. Furthermore, as the Board submits, having been the subject of disciplinary action on two occasions, and suspended from practice for a total of two-and-a-half years as a consequence, and being subject to continuing conditions on his registration, Dr Durston 'was no friend of the [B]oard's – no friend of any regulator's'. Finally, as indicated earlier, Dr Durston was candid in his evidence about his own professional misconduct, and he was also candid in his evidence about his prescription of anabolic androgenic steroids to patients, which he (misguidedly) considered was of benefit to patients, because they would otherwise obtain the drugs from illicit sources without being medically monitored while they abused the drugs. (footnotes omitted) (original emphasis)
At [85] the Tribunal concluded that '[f]or the foregoing reasons' it accepted Dr Durston's evidence and found 'on the basis of his evidence that the practitioner's testimony at the penalty hearing that she would routinely call the prescribing doctor (relevantly Dr Durston) and that she spoke to him on multiple occasions when she need clarification was deliberately false'.
Ms Hamilton's notice of appeal includes the following particulars of ground 2:
Although the Tribunal accepted at [84] Dr Durston's evidence that, in effect, the appellant never called him, it does not follow that the appellant's recollection that she did so was a deliberate lie. The acceptance of Dr Durston's evidence was an insufficient basis upon which to make that serious finding of dishonesty, in that:
(a) human memory is fallible;
(b) the fallibility of human memory increases with the passage of time, particularly in litigation where plausible details may unconsciously become overlayed with actual events;
(c) the events being described in the appellant's testimony occurred some 13 years prior to the giving of her evidence;
(d) the appellant admitted her misconduct;
(e) the appellant gave detailed evidence as to her recollection of telephone calls to Dr Durston at [77] – [78]; and
(f) no other findings as to the appellant's dishonesty were made.
The arguments advanced by Ms Hamilton's counsel accorded with those particulars. Counsel argued that there is an important distinction between not accepting a witness's evidence and a finding of dishonesty (Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd Combined Projects (Arncliffe) Pty Ltd),[5] such a finding should be made carefully (Smith v NSW Bar Association),[6] and it should not be based upon 'inexact proofs, indefinite testimony, or indirect inferences'.[7] It is a matter of ordinary experience that human memory is fallible (Watson v Foxman),[8] and simple acceptance of a conflicting version of events is an insufficient basis for making a finding of dishonesty (Royal Guardian Mortgage Management Pty Ltd v Nguyen at [279] (Ward JA)).
[5] Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778 [932] (Ward CJ in Eq) citing Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128.
[6] Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256, 271 ‑ 272 (Deane J).
[7] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).
[8] Watson v Foxman (1995) 49 NSWLR 315, 319 (McClelland CJ in Eq).
The finding that Ms Hamilton lied in her evidence was submitted to be an inference drawn from facts found by the Tribunal which did not rest upon demeanour, with the consequence that this court was in as good a position as the Tribunal to decide on the proper inference to be drawn from the facts (Fox v Percy[9] and Royal Guardian Mortgage Management Pty Ltd at [278]). Counsel submitted that the Tribunal failed to take into account the impact of the long passage of time upon Ms Hamilton's memory in circumstances in which that delay increased the possibility that she was genuinely mistaken in her recollection. The proper inference from the facts found by the Tribunal was submitted to be that Ms Hamilton's memory had become coloured or confused once she realised and accepted the full gravity of her conduct; she had reconstructed a plausible memory of having taken at least some kind of appropriate steps at the time to question matters in order, in her own mind, to mitigate her improper conduct.
[9] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] (Gleeson CJ, Gummow & Kirby JJ).
Counsel for the Board submitted that the Tribunal's reasons justified the finding. The Board's counsel also advanced a new argument that diminished memory or passage of time could not explain Ms Hamilton's incorrect evidence because her admissions that she knew when she dispensed the prescriptions that they were not provided for a proper therapeutic purpose meant that there was no need for her to make phone calls to the prescribers (appeal ts 74). In any event, the Board's counsel submitted, the false assertions had also been made in a letter from the appellant to AHPRA dated 4 September 2015. In that letter Ms Hamilton stated, 'Dr Ismail and Dr Durston were the main prescribers of the relevant medications'. The letter stated that each time she contacted the relevant prescriber in relation to a prescription for an anabolic steroid, the prescriber assured her that the dose and directions of use were as intended and there was a genuine therapeutic need for the drug. Counsel for the Board also noted that there was no statement in the letter to the effect that Ms Hamilton was unable to remember the circumstances of dispensing. It was submitted that the letter contained a detailed account of purported conversations and their substance, and that this was inconsistent with Ms Hamilton not remembering the conversations.
Counsel for the Board's new argument, which relied upon the letter from Ms Hamilton to AHPRA of 4 September 2015, is not encompassed by the Tribunal's reasons. The concluding expression at [79] of the Tribunal's reasons ('for the reasons which follow') and the commencing words at [85] of those reasons ('[f]or the foregoing reasons') leave no room to doubt that the Tribunal's explanation for the finding in issue is contained at [80] ‑ [84] of the reasons. There is no reference in those paragraphs to Ms Hamilton's letter to AHPRA of 4 September 2015 or to the suggested inconsistency between Ms Hamilton's evidence of routinely calling the prescribing doctor or her evidence that she spoke to Dr Durston on multiple occasions when she needed clarification. The reasoning process now sought to be deployed by the Board's counsel was not adverted to by the Tribunal.
The Board did not file a notice of contention seeking to uphold the Tribunal's decision upon the ground now put forward on behalf of the Board. When that difficulty was drawn to the attention of the Board's counsel, she acknowledged it and did not seek leave to take any step to overcome it (appeal ts 76 ‑ 77). In these circumstances the Board should not be permitted to rely upon its new argument.
In any event, the new argument is not persuasive. A conclusion that Ms Hamilton deliberately lied in her evidence is not justified by the suggested inconsistency between that evidence and her admission that 'by reason of the agreed facts set out in [1] ‑ [13] of Annexure A' Ms Hamilton engaged in professional misconduct in that she 'engaged in the practice of dispensing anabolic androgenic steroids to patients for a purpose for which the respondent knew did not accord with recognised therapeutic standards'. The argument that there was no need for Ms Hamilton to make phone calls to the prescribers proceeded upon the incorrect premise that Ms Hamilton admitted that she knew when she dispensed the prescriptions that they were not for a proper therapeutic purpose. In fact, Ms Hamilton admitted knowing only of the potential for misuse and abuse of the drugs she dispensed (agreed facts [9(d)] and [11]). Upon the agreed facts, Ms Hamilton did not know that the quantities and combinations of the drugs dispensed by her were not necessary for any therapeutic purpose; that the quantities or combinations of medication she dispensed in the repeat authorisations and/or multiple prescriptions were likely to constitute an unacceptable hazard to health; and that those quantities or combinations of the medication supplied had the potential for psychological or physical dependency (agreed facts [9(a)], [9(c)] and [9(e)]). It is also important to bear in mind that the finding of a deliberate falsehood was not directed to the content of any conversation between Ms Hamilton and Dr Durston. It was confined to Ms Hamilton's evidence that she would routinely call him and speak to him on multiple occasions when she needed clarification. In these circumstances, and notwithstanding Ms Hamilton's admission that she engaged in professional misconduct by her practice of dispensing the drugs to patients for a purpose she knew did not accord with recognised therapeutic standards, the agreed facts leave scope for conversations in which Ms Hamilton sought clarification of the therapeutic purpose of particular prescriptions.
Nor does it follow from the proposition that Ms Hamilton's letter to AHPRA of 4 September 2015 was more detailed than her evidence, that Ms Hamilton must have known the content of those conversations when she wrote her letter. That letter was written some six years after the conversations she described in her evidence. Ms Hamilton's honest recollection of any such conversations may well have been substantially inaccurate by that time.
Counsel for Ms Hamilton's argument should be accepted. The only reason assigned by the Tribunal for finding that Ms Hamilton's evidence amounted to a lie was that it was inconsistent with Dr Durston's evidence. The Tribunal's acceptance of Dr Durston's evidence and its rejection of different evidence by Ms Hamilton may have been influenced by the demeanour of each of them. But whatever view the Tribunal held about their credibility or the reliability of their evidence could not bridge the gap between rejection of Ms Hamilton's evidence and a finding that her evidence amounted to a deliberate falsehood. A finding of dishonesty of that kind could be made only after careful attention was given to evidence about Ms Hamilton's state of mind when she gave her evidence. The Tribunal's reasons make it clear that the Tribunal instead confined its attention to inconsistency between the two witnesses' evidence.
The SAT Act does not express criteria or guidelines for the exercise of the discretionary power conferred upon the court to grant leave to appeal under s 105(1) of that Act. It has been held that leave to appeal should be granted if it is in the interests of justice in all of the circumstances.[10] It is in the interests of justice to grant leave to appeal upon ground 2 because that ground has merit, the finding that Ms Hamilton deliberately gave false evidence is a very serious one, and the Tribunal took that finding into account in its evaluation of the appropriate penalty, at least in relation to its conclusion that specific deterrence was a relevant consideration for the penalty. I would grant leave to appeal and allow Ms Hamilton's appeal upon ground 2 and set aside the findings at [79] and [85] of the Tribunal's reasons that the evidence of Ms Hamilton described in those paragraphs was deliberately false and a lie. The appropriate finding instead is that the relevant evidence was incorrect in so far as it conflicted with the evidence of Dr Durston (so much was not in issue between the parties if the court upheld ground 2).

Ms Hamilton's appeal – ground 1

[10] Paridis [16] (Buss JA; Wheeler & Pullin JA agreeing); Nadkarni v Medical Board of Australia [2022] WASCA 109 [107] (Buss P, Mazza & Mitchell JJA).

My conclusion that ground 2 should be upheld makes it unnecessary to discuss the contention in ground 1 that the decision to suspend Ms Hamilton's registration for 30 months was unreasonable or plainly unjust.

The Board's application for leave to adduce additional evidence

By an amended application to adduce evidence dated 16 March 2022, the Board applied for leave to adduce additional evidence. The proposed additional evidence is in two categories; evidence concerning Ms Hamilton's conviction in 2011 of a criminal offence committed in 2009, and evidence upon the question whether she had obtained a postgraduate qualification from UNSW in 2006.
Counsel for the Board disavowed any application to adduce the additional evidence in its appeal. Nor was it submitted that the evidence would be relevant to the contention in ground 2 of Ms Hamilton's appeal. The Board argued that the evidence was relevant to the contention in ground 1 of Ms Hamilton's appeal. I discuss the additional evidence in the next section of these reasons. It is necessary here only to explain my conclusion that this evidence is irrelevant to the contention in ground 1 of Ms Hamilton's appeal.
The Board's counsel submitted that the proposed evidence would be relevant in the disposition of ground 1 of Ms Hamilton's appeal upon the footing that any evidence bearing upon the manifest unreasonableness or otherwise of the penalty would be relevant (appeal ts 23). The Board's counsel also relied upon a feature of ground 1 of Ms Hamilton's appeal to which I have so far not referred. After the contention in ground 1 that the finding which led to the order suspending Ms Hamilton's registration for 30 months was unreasonable and plainly unjust, the ground includes the expression 'in that:', followed by seven subparagraphs. Subparagraphs (a) ‑ (f) assert facts and subparagraph (g) asserts the conclusion that 'in these circumstances, the finding represented a sanction that was excessive and disproportionately severe'. Those subparagraphs are followed by a heading 'Particulars', under which there are six paragraphs. Each of those paragraphs commences with the words 'As to', followed by reference to the corresponding subparagraph of ground 1. Each paragraph then identifies and describes a finding or findings by the Tribunal concerning the facts asserted in the corresponding subparagraph.
Thus, to take the most relevant example, subparagraph (b) of ground 1 asserts that 'the misconduct had occurred over a relatively short period of time, and the appellant had no other blemishes in 21 years of practising', and, relevantly to the Board's argument, paragraph (b) of the particulars of subparagraph (b) of ground 1 states:
As to ground 1(b):
…
(iii) the finding at [119] that the Appellant has no disciplinary history, and no disciplinary allegations made against her, in over 21 years of practice.
The Board's counsel argued that the additional evidence it applied for leave to adduce would be relevant to the facts asserted in subparagraph (b) (appeal ts 31). That argument wrongly assumes that ground 1 puts in issue in Ms Hamilton's appeal findings of fact made by the Tribunal. As the particulars make clear, ground 1 adopts the Tribunal's findings of fact. The effect of the subparagraphs of ground 1 and the particulars of them is to give notice of arguments to be advanced in support of the contention in ground 1 that the decision to suspend Ms Hamilton’s registration for a period of 30 months was unreasonable or plainly unjust. That contention is in the form of the ground of appeal against a discretionary decision identified by Dixon, Evatt & McTiernan JJ in House v The King,[11] that, '[i]t may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. This ground of appeal allows no scope for additional evidence on appeal.
[11] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).

The Board's appeal

Pursuant to s 105(1) and s 105(2) of the SAT Act, the Board may appeal only if the court gives leave to appeal and any such appeal can only be brought on a question of law. The Board has no entitlement to appeal against a penalty of suspension (or disqualification) otherwise than on a question of law and by leave.[12]
[12] Paridis [50] ‑ [52] (Buss JA; Wheeler & Pullin JJA agreeing).
The grounds of the Board's appeal contend the Tribunal erred in law in four ways:
(a)Ground 1: 'in the exercise of its discretion in respect of the determination of penalty by arriving at a penalty that was manifestly inadequate for the protection of the public in that it imposed a period of suspension of the appellant's registration as a pharmacist rather than cancelling the appellant's registration'.
(b)Ground 2: 'in failing to find that the appellant was at the time of its determination of penalty unfit to practise the profession of pharmacy notwithstanding that it made findings of dishonesty on the part of the appellant in respect of evidence given by the appellant in the proceedings before the Tribunal'.
(c)Ground 3: 'in finding that the incompetency recorded in facts agreed between the parties had been cured by the appellant making admissions of that incompetency'.
(d)Ground 4: 'in failing to consider or take into account evidence of continuing incompetency at the time of the penalty hearing in the determination of penalty'.
In response to correspondence from the Court of Appeal Registrar, counsel for the Board supplied a document which purported to identify questions of law corresponding with the grounds of appeal. I do not find it necessary to consider whether any one of the four questions articulated by the Board is a question of law for present purposes. I would in any event refuse leave to appeal and dismiss the cross-appeal for the following reasons.
The first question framed by the Board is:
Whether the decision to suspend rather than cancel the appellant's registration constitutes an implied error of law in that the penalty imposed is manifestly inadequate and manifestly unreasonable such that no reasonable tribunal could have arrived at that penalty[.]
In the section of these reasons addressing the consequential orders that should be made in Ms Hamilton's appeal upon ground 2, I conclude that suspension for a much shorter period than was ordered by the Tribunal is the appropriate disciplinary response to Ms Hamilton's professional misconduct in the circumstances of this case. My reasons for that conclusion sufficiently explain why, if question one is a question of law for which leave to appeal might be given, my answer to that question would be in the negative.
The second question framed by the Board is:
Whether, having made findings of dishonesty on the part of the appellant in respect of evidence given by the appellant in the proceedings before the Tribunal, the Tribunal erred in law in finding (at [136]) that the practitioner was not unfit for the practice of pharmacy when there was no basis for that finding and that finding was manifestly unreasonable in that no reasonable Tribunal could have made that finding having regard to the nature of the appellant's dishonesty as found[.]
My conclusions in relation to ground 2 of Ms Hamilton's appeal (see [42] and [66] of these reasons) falsify the premise of this question.
The third question framed by the Board is:
Whether the Tribunal erred in law in finding (at [129]) that the appellant's admitted incompetency was cured by the appellant making admissions of incompetency when that finding was manifestly unreasonable in that no reasonable tribunal could have made that finding[.]
This question wrongly assumes that the Tribunal found that Ms Hamilton's admitted incompetency was cured by her making admissions of that incompetency. Reference to [129] and [130] of the Tribunal's reasons reveals that admissions by Ms Hamilton were only one of five reasons given by the Tribunal for rejecting the Board's submissions that Ms Hamilton's incompetence had not been cured:
(a)First, the Tribunal rejected the basis of the Board's submission. The Board argued that evidence given by Ms Hamilton that a therapeutic purpose for taking anabolic androgenic steroids is to reverse muscle wasting was an attempt 'to posit implausible therapeutic purposes for the prescribing (and therefore the dispensing) of the anabolic androgenic steroids'. The Tribunal held there was no evidence that reversing muscle wasting could not be a therapeutic purpose in a particular case.
(b)Secondly, the Tribunal expressed the reason which the Board's question wrongly assumes is the only reason.
(c)Thirdly, the Tribunal referred to the fact that Ms Hamilton had not been the subject of any disciplinary process in relation to dispensing anabolic androgenic steroids after 30 April 2009.
(d)Fourthly, the Tribunal referred to the evidence that over the 10 years from 2010 the dispensing of anabolic androgenic steroids at the pharmacy constituted only about 2% of all dispensing episodes. The Tribunal found that this was a further indication that Ms Hamilton was no longer incompetent in relation to the dispensing of anabolic androgenic steroids.
(e)Fifthly, the Tribunal took into account that the Board did not contend, and there was no evidence to the effect, that Ms Hamilton was generally incompetent as a pharmacist, the evidence to the contrary was overwhelming, and the character references of Dr Nuttall and Dr Roberts demonstrated that she was a generally competent pharmacist and, indeed, had particular skills, including in complex compounding of medications, that had been of great benefit to her patients' health outcomes.
It would be inappropriate to answer the Board's third question because it proceeds upon a seriously flawed premise.
The fourth question articulated by the Board is:
Whether, by reason of the error in [3] above, the Tribunal erred in law in failing to take into account a relevant consideration on the question of an appropriate penalty, being the appellant's incompetence[.]
My conclusions in relation to the third question render it unnecessary to answer the fourth question.

The factual basis for deciding what consequential orders should be made in Ms Hamilton's appeal

Before deciding upon the nature and content of the consequential orders that should be made upon the footing that Ms Hamilton's appeal on ground 2 succeeds, it is necessary to identify the factual basis upon which such consequential orders fall to be decided. The findings of fact made by the Tribunal should be adopted, subject only to the impact of upholding ground 2 of Ms Hamilton’s appeal and consideration of the applications to adduce additional evidence in the court’s reconsideration of the appropriate penalty.
For the reasons given in relation to ground 2 of Ms Hamilton's appeal, the court should not proceed upon the footing that Ms Hamilton gave the relevant evidence before the Tribunal dishonestly. The court instead should proceed upon the footing that Ms Hamilton's evidence in that respect was wrong.
Nor should the court proceed upon the footing that Ms Hamilton dishonestly gave any other evidence. The Tribunal said of the evidence emphasised at [77] of its reasons that it was 'deliberately false, that is, a lie' and the Tribunal 'was satisfied on a balance of probabilities and [feels] an actual persuasion on the whole of the evidence that the practitioner lied in her evidence in this respect' [79] and it 'was deliberately false' [85].
There is a marked difference between those findings and the Tribunal's subsequent findings that:
(a)Ms Hamilton's statement that '[a]s a consequence [of the incident], I also immediately ceased dispensing multiple prescriptions for patients that were prescribed steroids by Dr Ismail or Dr Durston on their authorisation' was 'untrue' [89] and 'not true' [90].
(b)Ms Hamilton's statement that '[f]rom that incident it became clear to me that it was likely that the reasons proffered by … Dr Durston regarding the need for multiple prescriptions were [sic] possibly not accurate or were even misleading and untrue' was 'untrue' and 'we do not accept her evidence' [91].
It is relevant to mention the Tribunal's reason for those two findings:
(a)The reason for the first of those findings was that Ms Hamilton's statement was inconsistent with three dispensing episodes put to her in cross-examination, which occurred long after the time she said she had ceased dispensing multiple prescriptions of that kind [90].
(b)The Tribunal's finding that the second statement was untrue relied only upon an inconsistency between it and a different fact (as found by the Tribunal) that Ms Hamilton 'did not routinely and on multiple occasions seek clarification from Dr Durston' [91].
(c)In neither case did the Tribunal advert to evidence bearing upon Ms Hamilton's state of mind when she made the relevant statements in evidence.
In the context of those reasons and the clear language used by the Tribunal in the finding that Ms Hamilton had given dishonest evidence, the better view is that the Tribunal's descriptions of other evidence as 'untrue' should not be construed as findings that Ms Hamilton gave that other evidence dishonestly. I acknowledge that there are indications in the reasons that the Tribunal may have intended to convey that Ms Hamilton deliberately gave other false evidence. Most relevantly, the Tribunal stated in subsequent paragraphs of its reasons that 'as we found earlier, the practitioner was untruthful in the evidence she gave in her witness statement in two respects' [127] and 'we found that the practitioner gave untruthful evidence in relation to two matters' [136]. Nevertheless, for the reasons at [39] above, and bearing in mind the well‑known requirement that a finding that a witness gave deliberately false evidence should be clearly expressed and explained, statements of that kind are an insufficient basis for construing the Tribunal's reasons as findings that Ms Hamilton deliberately gave false evidence.
It is necessary next to consider submissions for the Board that the evidence the subject of its amended application for leave to adduce additional evidence should be admitted in the court's reconsideration of the penalty. The Board argues that because s 105(13) of the SAT Act applies to this appeal it is an appeal by way of rehearing,[13] with the consequence that the court is empowered to admit additional evidence in the court’s reconsideration of the penalty either under pt 5, r 47(3)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA) or as a necessary implication in an appeal by way of rehearing.[14]
[13] For that proposition, the Board cites Chang v Legal Profession Complaints Committee (No 2) [2020] WASCA 208 [233] ‑ [234] (Buss P & Murphy JA).
[14] For that proposition, the Board cites Ex parte Currie; Re Dempsey [1968] 2 NSWR 378; (1968) 70 SR NSW 1, 10 (Jacobs & Holmes JJA); Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 (Glass JA); Baker v University of Ballarat [2005] FCAFC 201; (2005) 225 ALR 218 [36] (Ryan J); Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [105] ‑ [106] (McHugh J); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ); CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172.
It is not necessary to discuss that submission. In Singh v Medical Board of Australia,[15] the court (Murphy & Mitchell JJA) described the nature of an appeal where s105(13) of the SAT Act applies as being 'an appeal by way of rehearing, rather than a de novo review of the evidence' [44].[16] The court observed that if there had been no further evidence and there had been no relevant change in the law, the court could only interfere if satisfied that there was an error on the part of the Tribunal. The court held, citing Saunders v The Public Trustee,[17] that it was empowered to admit additional evidence in such an appeal. Neither party argues that the court lacks power to admit additional evidence. The court should proceed upon the footing that it has that power.
[15] Singh v Medical Board of Australia [2018] WASCA 125.
[16] Quinlan CJ quoted this passage with apparent approval in Hegde v Pharmacy Board of Australia [No 2][2020] WASC 384 [51].
[17] Saunders v The Public Trustee [2015] WASCA 203.
I will refer first to the proposed additional evidence upon the question whether Ms Hamilton had obtained a postgraduate qualification from UNSW. The only reference to the evidence upon this topic in the Tribunal's reasons is a statement at [60] that:
In 2006, the practitioner also completed a course of part-time study over a year to obtain a postgraduate qualification in Sports Medicine Nutrition and Pharmacology from the University of New South Wales, which she describes as 'a part of my journey to try to specialise in the nutritional aspects of overall health for people, including athletes'.
A footnote refers to a paragraph in Ms Hamilton's witness statement for the penalty hearing.[18] The relevant part of the paragraph states:
To continue pursuing my passion for treating sportspeople, I completed a 1 year of part-time study to achieve a postgraduate qualification in Sports Medicine Nutrition and Pharmacology from the University of NSW in 2006.
[18] GAB Ex 5.
The Tribunal did not advert to the following evidence Ms Hamilton gave in cross examination at the penalty hearing:[19]
So you have a degree in sports medicine?--- Yes.
From the University of New South Wales?--- Yes.
And over what period were you studying at UNSW?--- 2006, I think.
And that degree included a unit dealing with performance enhancing drugs, didn't it?--- It deals with banned substances in sports, yes.
[19] Primary ts 167, 29 January 2021.
Upon this topic the additional evidence the Board seeks to adduce on appeal comprises documents attached to an affidavit of Ms McKenzie sworn on 8 February 2022 and paragraphs 8-10 of an affidavit by Ms Hamilton affirmed on 18 March 2022 in response to the affidavits sought to be adduced in evidence by the Board in the appeal.
The documents comprise:
(a)An email exchange in January 2022 between Ms McKenzie and a student administrator at UNSW. The University was unable to obtain a record of a student with Ms Hamilton's name attending the University. It was able to obtain a record of a student with the same first and second names but a different surname, which the student administrator believed was the student about whom Ms McKenzie enquired. The student administrator confirmed that no information could be provided regarding the student as UNSW only makes details of its graduates publicly available.
(b)An exchange of correspondence in January and February 2022 between Ms McKenzie and a solicitor acting for Ms Hamilton. Ms McKenzie requested a copy of any certification from UNSW that supported evidence given by Ms Hamilton before the Tribunal that she had obtained a postgraduate qualification in Sports Medicine Nutrition and Pharmacology from UNSW in 2006. Ms Hamilton's solicitor enquired as to the relevance of the Board's enquiry in respect to the appeal, and Ms McKenzie replied expressing opinions upon that topic.
In the affidavit of 18 March 2022 Ms Hamilton deposed:
8.In 2006, I was invited by the University of New South Wales to enrol in their non-award postgraduate program for Sports Medicine Nutrition and Pharmacology, as a non-medical graduate student.
9.As I do not hold a medical degree, I was not eligible to complete the Sports Medicine postgraduate for award.
10. Rather, I completed the nutrition and pharmacology components earning a non-award postgraduate in Sports Medicine Nutrition and Pharmacology in 2006.
At paragraph 11 of that affidavit Ms Hamilton also deposed, 'I have never knowingly sought to mislead anyone in relation to this'. The Board did not oppose Ms Hamilton's application to adduce that responsive evidence if the court granted the Board leave to adduce the additional evidence upon which it seeks to rely.
In an affidavit sworn by Ms McKenzie on 30 March 2022, she stated that to the best of her knowledge and belief Ms Hamilton had not previously informed the Board or its representatives of the information in paragraphs 8 to 10 of her affidavit affirmed on 18 March 2022.
The Board referred in its supplementary written submissions to email correspondence from Ms Hamilton annexed to her affidavit of 21 December 2021 filed in this court in support of her application for a stay of the Tribunal's decision. That correspondence included reference in Ms Hamilton's email signature to 'Sports Medicine UNSW P Grad' and 'Dr Sports Medicine UNSW P Grad'.
In Saunders, Mitchell J (with whose reasons Buss JA & Beech J agreed) identified relevant considerations and the ultimate question in a decision whether to allow additional evidence in an appeal against a final decision made after trial [87] ‑ [90]:
In deciding whether to allow an applicant to adduce additional evidence on an appeal against a final decision made after trial, the strong public interest in the finality of litigation will be an important consideration. That public policy provides a powerful reason for strictly confining the circumstances in which a party on appeal will be allowed to augment the evidence led at trial. Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial [Devereaux-Warnes v Hall [2006] WASCA 268 [2], [26]].
Another important consideration will be whether the additional evidence is properly characterised as fresh evidence which either did not exist at the time of the trial or which could not have been discovered with reasonable diligence at that time [Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45 [36]]. Generally, the discretion will be exercised against admitting evidence which is not fresh in this sense, particularly where the evidence has been deliberately withheld at trial [Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182 [12]. See by analogy Sami v Minister for Immigration [2013] FCAFC 128 [7], citing Moore v Minister for Immigration [2007] FCAFC 134; (2007) 161 FCR 236 [4] – [7]].
It will also be relevant to consider the strength of the evidence, whether it is contested and whether there is a significant possibility that the evidence would lead to a different result if admitted [Lunt [36]; Goninan [11]; Sami [7]]. If evidence is contested and would require a new trial to resolve factual disputes if it were admitted, then that will be a factor counting against its admission in the appeal.
Ultimately the question is whether it is in the interests of justice to admit the additional evidence, having regard to the above considerations [Goninan [11]. See, by analogy, Lackovic v Insurance Commission (WA) [2006] WASCA 38; (2006) 31 WAR 460 [112], [114]].
The proposed additional evidence establishes a strong case that evidence Ms Hamilton gave at the penalty hearing and in correspondence annexed to her affidavit in support of her stay application about having a postgraduate qualification was incomplete and objectively inaccurate. I would also accept the submissions for the Board that the proposed additional evidence could not have been discovered with reasonable diligence; the Board apparently had no reason to suspect that Ms Hamilton's evidence in the Tribunal might not have had not been a complete and objectively accurate account of the postgraduate qualification she claimed to have been awarded.
The significance of the additional evidence upon that topic for the consequential orders to be made by the court depends upon what inferences can be drawn from the evidence about matters bearing upon Ms Hamilton's insight into her wrongdoing, her remorse, the reform of her character, and particularly her willingness to comply with ethical requirements of her profession.[20] So much is reflected in the Board's central argument upon this issue that Ms Hamilton's 'lack of veracity and candour' in the evidence she gave on the topic was relevant to the question 'whether [she] can be trusted to be honest and candid in respect of matters concerning the regulation of her profession' (respondent's supplementary submissions in attachment 'JMM 15' to Ms McKenzie's affidavit sworn 30 March 2022).
[20] See Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 [108] (Ipp JA).

Schedule

Previous Cases

Schmuelly v Professional Standards Committee Inquiry (2010)

1 The complaint against the practitioner alleged that he inappropriately prescribed human growth hormone (HGH) to patients and himself, prescribed Roaccutane to patients without authority, inappropriately prescribed a restricted substance to his fiancée and completed Workcover certificates certifying himself as unfit to work.

Findings of the Committee

2 The practitioner's conduct was held to be significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience [153]. His pattern of conduct in prescribing HGH to patients and to himself indicated a lack of both judgment and care [154]. His explanation for the completion of the Workcover certificates was considered unsatisfactory and unconvincing [155]. The practitioner was found to have engaged in unsatisfactory professional conduct [156].

Orders of the Committee

3 The Committee acknowledged that the practitioner had not prescribed HGH since 2007 and had expressed remorse over his conduct. The practitioner, however, gave little or no evidence as to his appreciation of the risk that his behaviour posed to his patients or insight into the importance of evidence‑based medicine [157] ‑ [159].
4 The Committee administered a caution against the practitioner and directed for a condition to be imposed on his registration requiring him to complete within 12 months, and at his own expense, the distance education course 'Issues in General Practice Prescribing' offered by Monash University.

Health Care Complaints Commission v Zacharia[33]

[33] Health Care Complaints Commission v Zacharia, unreported, NSW Medical Tribunal, 20 December 2011.

5 The practitioner practised as an ear, nose and throat surgeon and as a cosmetic surgeon. A small part of his practice became devoted to anti‑ageing medicine. It was alleged that the practitioner engaged in professional misconduct by inappropriately prescribing HGH and testosterone treatment for anti‑ageing purposes and failing to maintain adequate records.

Findings of the Tribunal

6 The Tribunal found that there were material inadequacies in the practitioner's record keeping and clinical examination. The practitioner supplied HGH, testosterone and anabolic steroids for purposes not therapeutically recognised. The Tribunal made a finding of professional misconduct. The Tribunal formed the view that the practitioner had:
[E]mbarked on an area of practice for which he was ill-equipped through training and education and, most significantly, in the absence of scientific and medical research to a standard that allowed that practice to be undertaken with confidence that it presented no risk of harm to his patients [247].

Orders of the Tribunal

7The Tribunal reprimanded Dr Zacharia and ordered that he pay a fine of $15,000.

8 The Tribunal noted that there had been no complaints concerning the practitioner's professional capacity in the areas of ear, nose and throat surgery, cosmetic surgery and cosmetic procedures. The Tribunal considered it appropriate to impose as a condition on his continued registration that he confine his practices to those areas. The conditions also required Dr Zacharia:
(a)not to possess, administer, prescribe or supply a number of drugs, including HGH and most anabolic or androgenic steroids;
(b)not to advertise health services regarding 'anti‑ageing' medicine as it involves the use of any of the drugs he is prohibited from possessing, administering, prescribing or supplying; and
(c)to complete the distance medical ethics course offered by Monash University.

Medical Board of Australia v Grant[34]

[34] Medical Board of Australia v Grant[2012] QCAT 285.

9 The Medical Board of Australia brought proceedings against Dr Grant, a general practitioner, for prescribing anabolic steroids and other restricted drugs for body building rather than therapeutic purposes [2], [62].

Findings of the Tribunal

10 The Tribunal found that the practitioner inappropriately prescribed medications to 14 patients based on protocols published in body building magazines [29], [62]. The Tribunal stated that it was likely Dr Grant became known by members of the body building community as a doctor who was willing to prescribe steroids for body building purposes [27].
11 The Tribunal found that Dr Grant seemed to have facilitated access to steroids for non‑therapeutic purposes because he considered it preferable that professional or recreational body builders access a 'pure product' and have their health monitored while using the substances. He attributed his failure to stop doing what he knew to be wrong to a weakness of character [44].

Orders of the Tribunal

12 The parties filed an agreed statement of facts and made submissions supporting a joint position on sanction. The sanction proposed a reprimand and the imposition of conditions on his registration.
13 The Tribunal concluded that the proposed sanction was not appropriate having regard to the seriousness of the practitioner's misconduct and his lack of professional judgment [62]. The Tribunal imposed a reprimand and a 12-month suspended period of suspension, subject to compliance with conditions imposed on his registration.
14The conditions imposed on his registration required him to:
(a)undertake a tertiary level course in prescribing practices;
(b)undertake a course approved by the Board to develop skills for managing difficult interactions with patients;
(c)not deal with the relevant drugs in any way, or seek the return of his endorsement to do so;
(d)allow and pay for the Board to audit his patient records;
(e)nominate a mentor with whom he must meet monthly to reinforce sound prescribing practices and skills in managing interactions with patients; and
(f)provide a copy of these orders and reasons to his employer and mentor.

Health Care Complaints Commission v Epstein[35]

[35] Health Care Complaints Commission v Epstein [2015] NSWCATOD 21.

15 Dr Epstein was a general physician of many years' standing who developed a practice in anti-ageing medicine. The complaint against Dr Epstein alleged that she prescribed hormones, steroids and other drugs to 40 patients where there was no proper indication for the prescribing and without exercising responsible medical judgement.

Findings of the Tribunal

16 The Tribunal was satisfied that Dr Epstein did not conduct adequate physical examinations and investigations prior to prescribing medications, did not report back to patients' treating general practitioners and did not maintain proper clinical records. The practitioner's conduct was held by the Tribunal to amount to unsatisfactory professional conduct and professional misconduct.
17 The practitioner prescribed for anabolic steroid users. The Tribunal was particularly concerned by the practitioner's treatment of a patient, in full knowledge of the patient's cognitive difficulties, in circumstances where the patient was unable to properly assess the risks and benefit of the proposed treatment [708]. This conduct was held to be improper and unethical.

Orders of the Tribunal[36]

[36] Health Care Complaints Commission v Epstein (No 2)[2015] NSWCATOD 36 (Penalty Decision).

18 The Tribunal made orders reprimanding Dr Epstein and imposing conditions on her registration. The conditions included a restriction on Dr Epstein's ability to prescribe HGH, testosterone and other anabolic/androgenic agents to any new or existing male patients unless:
(a)Dr Epstein first obtained written approval to prescribe as proposed from an Australian endocrinologist of her choice who has reviewed the patient's records and the proposed treatment plan; or
(b)the patient was reviewed by the endocrinologist and Dr Epstein's treatment plan was approved by the endocrinologist.

19 Further conditions included requirements for Dr Epstein to submit to audits of her practice and to participate in a formal mentoring arrangement with a registered medical practitioner.
20 The Tribunal did not consider the finding of professional misconduct to require a cancellation or suspension of Dr Epstein's registration as the Tribunal was not satisfied that she was unfit to practice at the date of hearing.

Medical Board of Australia and Singh[37]

[37] Medical Board of Australia and Singh [2017] WASAT 33.

21     The practitioner was a highly qualified physician who had been practising medicine for over 25 years. The principal allegations made by the Board were that, from early 2008, the practitioner engaged in a general practice of prescribing to patients, who consulted him seeking weight loss, physical conditioning and/or body building, anabolic androgenic steroids and other treatments in circumstances where there was no therapeutic reason for doing so and the patients were unnecessarily exposed to adverse effects [102], [106].
22     It was also alleged that the practitioner engaged in the general practice of prescribing Clomid to patients in contravention of the Poisons Regulations 1965 (WA) [104], ordering the infusion of iron, fresh frozen plasma (FFP) infusions and DEXA scans for patients when there was no recognised therapeutic indication for those treatments [108] ‑ [110], and failing to keep adequate clinical notes [317].
23     In addition to the above allegations regarding the practitioner's general practice, specific complaints were made with relation to the treatment of two patients.

Findings of the Tribunal

24 The Tribunal found that the practitioner had engaged in professional misconduct under the National Law, and had acted carelessly, incompetently and/or improperly for the purposes of the Medical Practitioners Act 2008 (WA), which was in force up to 18 October 2010.
25 His conduct was found in Medical Board of Australia and Singh[38] to be widespread and extensive, involving many hundreds of patients. The Tribunal also made a number of findings in relation to the widespread inadequacy of the appellant's clinical notes [317] ‑ [338], noting that in relation to a number of patients there were no clinical notes at all [332].
[38] Medical Board of Australia and Singh [2017] WASAT 33 (S) [39], [44] and [57] (Penalty Decision).
26 The Tribunal found that the practitioner recited inaccurate qualifications, displayed a lack of recall on specific matters highlighting his unprofessional approach to practice, and adopted scientific studies when it suited him and rejected all others when it did not. It became apparent from Dr Singh's concessions during the hearing that much of his evidence was deliberately untrue [96]. The Tribunal also found that the appellant engaged in professional misconduct by writing a derogatory letter to the medical practitioner who notified the Board of the medications a patient was receiving for body building pursuits [438] ‑ [443].

Orders of the Tribunal[39]

[39] Medical Board of Australia and Singh [2017] WASAT 33 (S) (Penalty Decision).

27 By the time the Tribunal came to impose a penalty in light of its findings of misconduct, the appellant was no longer registered as a medical practitioner, as his registration had expired, and he had not sought to renew it. The Tribunal made clear that it would have cancelled the appellant's registration were it still in force. In that regard the Tribunal expressly found that the appellant's misconduct was 'so serious that he is permanently or indefinitely unfit to practice': Penalty Decision [75].
28 The Tribunal disqualified the practitioner from applying for re‑registration as a medical practitioner for a period of 10 years and fined him $5,000.

Appeals

29 Singh v Medical Board of Australia:[40] the appeal against decision had no reasonable prospects of success, and the application for leave to appeal was dismissed.
[40] Singh v Medical Board of Australia [2018] WASCA 125.
30 Singh v Medical Board of Australia:[41] leave to appeal was refused and the appeal dismissed. The practitioner did not demonstrate any error by the Tribunal in the exercise of its discretion. The Tribunal did not err in consideration of matters personal to the practitioner and correctly apprehended the law to be applied in the imposition of sanctions. The period of disqualification was not unreasonable or plainly unjust and the Tribunal's findings were within sound discretion.
[41] Singh v Medical Board of Australia [2019] WASCA 51.

Medical Board of Australia v Hadges[42]

[42] Medical Board of Australia v Hadges [2018] SAHPT 6.

31 The complaint alleged that Dr Hadges, a specialist general practitioner, inappropriately prescribed steroids to 15 of his patients for body building rather than therapeutic purposes [9]. It was further alleged that Dr Hadges prescribed extremely hazardous levels of Valium in combination with analgesics to a patient with sedative dependence [20], and inappropriately prescribed for himself and family members [22].

Findings of the Tribunal

32 The Tribunal made findings that the practitioner failed to appropriately interpret or deliberately ignored investigation results, failed to consider the balance of benefit and harm in clinical management decisions and failed to provide or record the provision of information to patients of the benefits and risks of adverse outcomes. Dr Hadges engaged in the provision of drugs for recreational purposes rather than therapeutic benefit and failed to work within the limits of his competence and scope of practice.

Orders of the Tribunal

33 The Tribunal considered that Dr Hadges had no prior history, had demonstrated a degree of remorse and insight into his behaviour and acted appropriately and cooperatively when notified of his misconduct [52] ‑ [53].
34 The Tribunal made orders to reprimand Dr Hadges, suspend his registration for eight months and impose conditions on his registration, including:
(a)restricting his areas of practice to general practice and/or practice as a surgical assistant;
(b)prohibiting him from performing cosmetic medicine or surgical procedures;
(c)requiring him to be under supervision by another medical practitioner when practising;
(d)requiring him to only practise at Board-approved places of practice;
(e)prohibiting him from prescribing, supplying or administering anabolic steroids and other particular classes of drugs; and
(f)completing education on various topics, including clinical management, investigations, review of treatment, prescribing, informed consent and coordination of care.

Medical Board of Australia v Tunbridge[43]

[43] Medical Board of Australia v Tunbridge [2020] SACAT 34.

35 As alleged by the Medical Board of Australia, Dr Tunbridge admitted to, between 2009 and 2018, inappropriately prescribing medication to patients, including Growth Hormone Releasing Peptide, Anastrozole, Metformin, anabolic androgenic steroids and testosterone, failing to adequately monitor or treat patients, and failing to maintain adequate records.

Findings of the Tribunal

36 The Tribunal made findings of fact in accordance with the statement of agreed facts. The conduct of the practitioner was held to exhibit a serious disregard for the requirements of professional practice. The prescribing constituted a serious departure from the standard of care to be expected of a practitioner of Dr Tunbridge's training and experience [32]. The Tribunal concluded that the practitioner had behaved in a way which clearly constituted professional misconduct [33].
37 The practitioner initially defended his conduct and challenged the views of the independent medical experts. Other than an acknowledgment eventually made in the statement of agreed facts, Dr Tunbridge made no effort to convince the Tribunal that he had gained insight into his behaviour or that he could be trusted to practice in a safe manner. He did not address the issue of future practice in any capacity. This supported the Tribunal's finding that the practitioner was presently unfit to practice and that a lengthy disqualification would be required to secure the maintenance of professional standards [34] ‑ [36].

Orders of the Tribunal

38 The practitioner was reprimanded, disqualified for a period of two years from applying for registration and ordered to pay the Board's costs.

Medical Board of Australia v Marzola[44]

[44] Medical Board of Australia v Marzola [2020] SACAT 116.

39 The practitioner was a registered medical practitioner practising in cosmetic and anti‑ageing medicine. The complaint alleged that the practitioner engaged in professional misconduct. The parties provided the Tribunal with a statement of agreed facts. Dr Marzola admitted that his conduct amounted to professional misconduct.

Findings of the Tribunal

40 The Tribunal was satisfied that the practitioner engaged in professional misconduct by inappropriately prescribing medication in circumstances where there was an absence of evidence to support a therapeutic benefit, and which exposed his patients to risk. Dr Marzola failed to obtain informed consent from patients before prescribing medication which was experimental, and which had not received necessary therapeutic approval. He failed to keep adequate records and engaged in behaviour in breach of the relevant Code of Conduct [52].

Orders of the Tribunal

41 The Tribunal was satisfied that Dr Marzola had recognised the nature and cause of his professional misconduct and made significant changes to his medical practice as an indication of his commitment to avoid engaging in unprofessional conduct in the future [54].
42 The Tribunal formed the view that the protection of the public and the maintenance of professional standards and confidence in the medical profession would be adequately addressed by issuing a reprimand to Dr Marzola and imposing the following conditions on his registration, namely:
(a)prohibiting him from in any way accessing and prescribing any of the medication the subject of the proceedings;
(b)that his practice be subject to quarterly audits by a Board approved auditor; and
(c)that his medical practice be restricted to specified areas of clinical activity,

with these conditions subject to a 12-month review by the Board. Dr Marzola was further required to pay a fine of $15,000.

Medical Board of Australia v Owen[45]

[45] Medical Board of Australia v Owen [2021] SACAT 7.

43 The Medical Board of Australia referred a complaint to the Tribunal alleging that Dr Owen engaged in improper prescribing, deficient assessment of seven patients, and inadequate record keeping.
44 During the relevant period, Dr Owen practised in both traditional general medicine and an 'integrative' medical practice, treating a cohort of patients with a combination of conventional western medicine and complementary medicine and therapies. Dr Owen had a particular interest in treating anxiety and depression with treatments that included 'vitamins', Methyltetrahydrofolate reductase (MTHFR), 'gene polymorphism' and 'the potential benefits of Folinic acid' [11].
45The parties filed an agreed statement of facts and findings and agreed draft minutes of order.

Findings of the Tribunal

46 The Tribunal accepted the Board's summary of unifying principles and was satisfied that the elements of the complaint were established. This, alongside the practitioner's admissions, supported a finding of professional misconduct.
47 The Tribunal found that Dr Owen prescribed various drugs and supplements inappropriately and without sufficient therapeutic indication, without the conducting or documentation of appropriate diagnostic tests and, in prescribing testosterone to women, lacking the appropriate knowledge and expertise to do so safely. His assessment of the seven patients in question was deficient in various respects, including by undertaking inadequate assessments, failing to conduct adequate examinations and failing to formulate and implement appropriate management plans. Dr Owen's record keeping for the seven patients was inadequate.

Orders of the Tribunal

48 The Tribunal made orders reprimanding Dr Owen, suspending his registration for a period of 12 months and imposing conditions on his registration commencing on the expiry of the suspension. The conditions restricted Dr Owen to only practicing in a group practice that had been approved by the Board and which had a minimum of four other medical practitioners. It was ordered that Dr Owen must not prescribe or administer testosterone (in any form) to male or female patients; not provide treatment for anxiety and depression by reference to the MTHFR genotype using methyl B12, folinic acid and/or MTHFR; and must undergo further education, mentoring and quarterly audits of his practice for a period of 12 months.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
2 DECEMBER 2022