Hegde v Pharmacy Board of Australia
[2020] WASC 383
•23 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: HEGDE -v- PHARMACY BOARD OF AUSTRALIA [2020] WASC 383
CORAM: QUINLAN CJ
HEARD: 26 AUGUST 2020
DELIVERED : 26 AUGUST 2020
PUBLISHED : 23 OCTOBER 2020
FILE NO/S: GDA 9 of 2020
BETWEEN: CHETAN ANANT HEGDE
Appellant
AND
PHARMACY BOARD OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: DR S WILLEY, SENIOR MEMBER
MS R PETRUCCI, MEMBER
MS D PEARSON, SESSIONAL MEMBER
Citation: PHARMACY BOARD OF AUSTRALIA and HEGDE [2020] WASAT 89
File Number : VR 96 of 2017
Catchwords:
State Administrative Tribunal - Vocational regulation - Pharmacist - Stay application - Appeal against orders following a finding of professional misconduct - Whether order cancelling pharmacist's registration should be stayed pending appeal - Whether appeal has reasonable prospects of success - Balance of convenience - Prejudice to appellant - Public interest considerations
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010
Pharmacy Act 2010 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Application for stay refused
Urgent appeal order made
Category: B
Representation:
Counsel:
| Appellant | : | A P Hershowitz |
| Respondent | : | F A Stanton & J M McKenzie |
Solicitors:
| Appellant | : | Meridian Lawyers |
| Respondent | : | MinterEllison |
Case(s) referred to in decision(s):
Attia v Health Care Complaints Commission [2017] NSWSC 178
CEO of the Department for Child Protection v C [2007] WASCA 172
Council of the Queensland Law Society v Cummings [2004] QCA 138
Eastland Technology Australia Pty Ltd v Whisson [2003] 28 WAR 308
House v King [1936] HCA 40; (1936) 55 CLR 499
Jemielita v The Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992)
Legal Profession Complaints Committee and Khosa [2015] WASAT 107
Legal Profession Complaints Committee v Gandini [2012] WASCA 247
Pharmacy Board of Australia and Hegde [2020] WASAT 89
Wright v Hancock Prospecting [2019] WASCA 141
QUINLAN CJ:
(This judgment was delivered extemporaneously on 26 August 2020 and has been edited from the transcript).
This is an application pursuant to s 106 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) for a stay of a decision of the State Administrative Tribunal (the Tribunal) pending an appeal by the appellant, Mr Hegde.
The appellant was the subject of disciplinary proceedings in the Tribunal's vocational regulation jurisdiction, brought by the Pharmacy Board of Australia (the Board) under the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the National Law).
On 7 August 2020, the Tribunal made orders finding that the appellant had engaged in professional misconduct during the period 1 January 2008 to 30 April 2009.
The relevant conduct is set out at paragraphs 1(a) through to (d) of the orders made by the Tribunal in the decision of Pharmacy Board of Australia and Hegde:[1]
[1] Pharmacy Board of Australia and Hegde [2020] WASAT 89 (Primary Reasons).
1.Consistent with the facts and findings agreed between the parties on or about 28 June 2019, the Tribunal finds that Mr Chetan Hegde (respondent) engaged in 'professional misconduct' for the purposes of s 196(1)(b)(iii) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) in that during the period 1 January 2008 to 30 April 2009 the respondent:
a.engaged in the practice of dispensing anabolic androgenic steroids to patients for a purpose which the respondent ought to have known 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 ought to have known, were not necessary for any proper therapeutic purpose and were likely to constitute an unacceptable hazard to the health of patients and/or others to whom those drugs could be on-sold and had the potential for misuse, abuse or psychological and/or physical dependency;
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 he ought to have known, 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 whom those drugs could be on-sold and had the potential for misuse, abuse or psychological and/or physical dependency; and
d.failed to make any, or any adequate, clinical notes in relation to discussions with patients when counselling them on the use of anabolic androgenic steroids and/or the physical condition of the patients to whom he dispensed anabolic androgenic steroids.
The Tribunal ordered, in addition to the finding of professional misconduct that the appellant be reprimanded, his registration as a pharmacist be cancelled with effect from the publication of the orders and that he be disqualified from applying to re-register as a pharmacist for a period of three years. The appellant was also ordered to pay the Board's costs of the proceedings.
The substantive appeal seeks to overturn these orders and the application for a stay is to stay the effect of the orders pending the appeal.
Principally, the application seeks a stay of the orders that the appellant's registration be cancelled with effect from the publication of the reasons and that the appellant be disqualified from applying for re-registration for a period of three years.
The amended application for a stay, as it was originally formulated, also sought what is described as an interlocutory restorative injunction to reinstate the appellant's name on the register of pharmacists maintained under the National Law. That order was sought in light of certain decisions in New South Wales suggesting that the power to stay the effect of an order for cancellation of a registration could not extend to nullifying the effect of that cancellation pending an appeal, including Attia v Health Care Complaints Commission.[2]
[2] Attia v Health Care Complaints Commission [2017] NSWSC 178.
In the present case, it is not necessary to determine whether or not those decisions would have application in this State.
That is because the Board accepts that the power of this Court, pursuant to s 106 of the SAT Act, which is a power to 'by order, stay the operation of a decision of the Tribunal pending the determination of an application for leave to appeal from the decision and of any appeal', is broad enough to encompass an order that would have the effect of restoring the status quo existing immediately prior to the decision, thereby restoring the appellant's registration pending the appeal.
In my view, that concession by the Board was properly made. In my view, on its proper construction, s 106 would enable the court to order a stay of an order that a registration be cancelled with effect from the publication of the orders. In those circumstances, the cancellation would cease to have effect pending the appeal.
The principal issue, therefore, is whether or not I should exercise the Court's discretion pursuant to s 106 to stay the operation of the cancellation.
The applicable principles in relation to stays of execution generally, as identified by the Full Court in Eastland Technology Australia Pty Ltd v Whisson,[3] and more recently in the Court of Appeal in Hancock Prospecting v Wright,[4] have been generally applied to applications for a stay under s 106 of the SAT Act.
[3] Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308.
[4] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [47].
In that respect, I refer to the decisions of Buss JA, as his Honour then was, in Chief Executive Officer, Department for Child Protection v C,[5] and the decision of Newnes JA in Legal Profession Complaints Committee v Gandini.[6] Of course, as those cases recognise, there are particular considerations that will apply in relation to an application for a stay such as this, in the vocational jurisdiction of the Tribunal. For that reason, the principles identified in cases such as Whisson and Wright need to be carefully applied in the context of a matter such as this.
[5] CEO of the Department for Child Protection v C [2007] WASCA 172.
[6] Legal Profession Complaints Committee v Gandini [2012] WASCA 247.
In the end, s 106 of the SAT Act confers a broad discretion on the court that is to be exercised in the interests of justice and in the public interest. The public interest in relation to an application for stay in a matter such as this will be affected by the interest in the safety of the public or any section of it in relation to the practice of the particular practitioner. I refer in particular to Chief Executive Officer, Department of Child Protection v C, at [15], where Buss JA referred, with apparent approval to Ipp J's decision in Jemielita v The Medical Board of Western Australia[7] recognising the potential harm to the public interest in allowing a medical practitioner in that case to practice pending appeal.
[7] Jemielita v The Medical Board of Western Australia (Unreported, WASC, Library No 920389, 24 July 1992).
The general principles in relation to any application for a stay start with the principle that, ordinarily, a successful litigant is entitled to enforce a judgment pending the determination of any appeal.
Of course, in the present case, the judgment is, as it were, self-executing. The starting principle, in those circumstances, is perhaps more properly described, being that the decision of the Tribunal should ordinarily take effect pending the determination of the appeal. That is the default position in s 106(2) of the SAT Act.
Accordingly, it is for the applicant for a stay to demonstrate and to move the court to a favourable exercise of its discretion.
The principles generally refer to the need for there to be some special circumstances justifying the departure from the ordinary rule. Those special circumstances may include whether the appeal will be rendered nugatory by the failure to grant a stay and where the balance of convenience lies. As part of that assessment, a stay will generally be refused unless it can be established that the appeal process has reasonable prospects of ultimate success so as to result in the grant of relief to the appellant.
In the present case, the principal issues relied upon by Mr Hegde as special circumstances arise from what may properly be described as a collateral effect of the Tribunal's decision. That collateral effect is an effect that occurs as a consequence of the loss of registration as a pharmacist on the capacity of the premises from which two pharmacies are operated to be registered as pharmacy premises within the meaning of the Pharmacy Act 2010 (WA) (the Pharmacy Act).
In that regard, while the registration of pharmacists as health professionals is regulated by the National Law and the respondent national body, the Pharmacy Board of Australia, the registration of pharmacies is regulated by the Pharmacy Act and a separate and independent board, the Pharmacy Registration Board of Western Australia (the Registration Board).
Under the Pharmacy Act, the premises are required to be registered as pharmacies (see s 39). Pursuant to s 43 of the Pharmacy Act, there are various grounds for refusal of registration and, in s 46, grounds for cancellation of the registration of premises. One of the grounds upon which the Registration Board must cancel the registration of premises is if a person who owns or holds a proprietary interest in the pharmacy business carried on at the premises has ceased to be a person entitled to do so under s 54 of the PharmacyAct.
Section 54 of the PharmacyAct provides that a person, inter alia, must not own or hold a proprietary interest in a pharmacy business unless the person is a pharmacist. There are various other provisions in s 54(1)(b) through to (e) that relevantly do not apply.
The pharmacy businesses of two Priceline pharmacies, that is, Priceline Pharmacy Beaumaris and Priceline Pharmacy Mount Lawley (which are registered premises numbers 293 and 469) are registered in the name of Mr Hegde. Mr Hegde owns those businesses and, until the order of the Tribunal, was qualified to be such an owner under s 54(1)(a) as he was a pharmacist (being a person registered in the pharmacy profession under the National Law: PharmacyAct, s 3).
The consequence of Mr Hegde ceasing to be registered as a pharmacist is that he has been served with a notice pursuant to s 46 of the Pharmacy Act to provide submissions in relation to the proposal by the Registration Board to cancel the registration of the pharmacy on the basis that it is no longer carried on by a person who is a pharmacist.
The Pharmacy Act provides a process for that to occur, including the making of submissions by the person in whose name the pharmacy is registered within a period of 14 days.[8]
[8] Pharmacy Act, s 46(3).
That 14 day period will expire on 31 August 2020. There is no evidence as to what submissions, if any, have been made as yet by Mr Hegde to the Registration Board. I infer that he is yet to make any such submissions, pending the determination of this application. If this application is not successful, then after the period within which submissions can be made, the Registration Board would need to consider whether it does, indeed, cancel the registration of the pharmacy.
As I said, that effect is somewhat collateral to the Tribunal's orders inasmuch as the registration of pharmacies under the Pharmacy Act did not directly form part of the subject matter of the proceedings in relation to which the Tribunal's decision is sought to be stayed. Those proceedings concerned Mr Hegde's registration under the National Law. Nevertheless, Mr Hegde has provided affidavit material, to which I will return later, indicating that if the Registration Board does cancel the registration, it would cause financial harm to him and also have an immediate and significant effect on the staff, the community and the provision of healthcare services in the areas in which the two pharmacies are located.
First, I will address the question of the prospects of success of the appeal.
Prospects of success
As I indicated, the decision of the Tribunal was to cancel the appellant's registration as a pharmacist. The decision related to practices by the appellant during the period from 1 January 2008 to 30 April 2009 in which he engaged in the practice of dispensing anabolic androgenic steroids to patients for purposes which he ought to have known did not accord with recognised therapeutic standards. Mr Hegde engaged in the practice of dispensing those anabolic steroids in quantities and in combinations that he ought to have known were not necessary for any proper therapeutic purpose and were likely to constitute an unacceptable hazard to the health of patients.
Further, he engaged in the practice of dispensing those anabolic steroids by dispensing repeat authorisations and/or multiple prescriptions in the same transactions or in separate transactions that were conducted significantly within the period during which the medication would have been consumed if taken at the usual dose when he ought to have known that the quantity supplied was likely to constitute an unacceptable hazard to the patients or persons to whom the drugs could be on-sold and had the potential for misuse, abuse or psychological and/or physical dependency. He also failed to make any adequate notes in relation to discussions with patients.
The breaches of the appellant's professional obligations were undoubtedly serious. The decision of the Tribunal in relation to the factual circumstances giving rise to the penalty describe a very significant undertaking in terms of the dispensing of anabolic steroids during the relevant period.
For example, the Tribunal's decision notes that the conduct occurred over 16 months.[9] The volume of dispensing was very significant and involved 4737 dispensing episodes, at an average of 296 dispensing episodes per month. The evidence also revealed that the amounts dispensed were often significantly in excess of that which could have been the appropriate amounts for a therapeutic dose.
[9] Primary Reasons [224].
The Tribunal, in addition to reviewing the seriousness of the misconduct itself, also made adverse findings against the appellant in relation to his oral evidence before the Tribunal, given in mitigation of penalty. The Tribunal found that Mr Hegde was not forthcoming or candid, that he was guarded and defensive and that he was not a reliable witness.[10] In that respect, the Tribunal generally preferred the evidence of a Dr Durston, who was called to give evidence for the Board in relation to his contact with the appellant.
[10] Primary Reasons [200].
As a consequence of these findings the Tribunal did not accept the appellant's evidence that he routinely consulted with Dr Durston about new patients;[11] it did not accept that there were endorsements of the prescriptions in accordance with reg 24 of the National Health (Pharmaceutical Benefits) Regulations 1960 (Cth)[12] and did not accept the evidence of the appellant that Dr Durston had told him that he had qualifications as a specialist endocrinologist and that that would have been readily apparent.[13]
[11] Primary Reasons [209].
[12] Primary Reasons [210]-[211].
[13] Primary Reasons [213].
In relation to the other findings concerning the penalty, the Tribunal expressed reservations as to the appellant's insight into his responsibility for the conduct, in particular at [219]. The Tribunal considered that there remained a need to protect the public from the appellant's dispensing practices in relation to anabolic steroids, although it acknowledged there was no evidence of inappropriate dispensing since 2010.
The Tribunal recorded that it was troubled by the appellant's level of understanding of his misconduct and his insight,[14] and concluded that the best that could be said on behalf of the appellant was that he had accepted his conduct could constitute professional misconduct, but had not demonstrated insight into why his misconduct was so serious and into the risks that it posed to his patients and the public generally, given the risk of diversion of the drugs.[15]
[14] Primary Reasons [226].
[15] Primary Reasons [241].
The Tribunal noted that the appellant's disciplinary history and the effluxion of time since the misconduct plainly went in his favour.[16] The Tribunal also noted that there was no other evidence of misconduct before the relevant period or in the decade after.[17] Significantly, the Tribunal specifically considered the appellant's competency for the purpose of the penalty. It stated that it was not satisfied the appellant was a competent pharmacist.[18]
[16] Primary Reasons [242].
[17] Primary Reasons [244].
[18] Primary Reasons [259].
It identified three particular matters in relation to which it had concerns. The first concerned the appellant's answers to questions on dispensing. It found that the appellant's answers did not demonstrate that he understood the basis upon which he should refuse to dispense and how that process should be managed.[19] It concluded that he had not learnt the underlying lessons from his dispensing during the relevant period and that he was yet to develop a level of insight into the responsibilities that come with the privilege of dispensing drugs to patients. It concluded:[20]
It follows that we find he is not currently a competent pharmacist in terms of his dispensing.
[19] Primary Reasons [269].
[20] Primary Reasons [280].
The Tribunal also referred to the consumer medical information pamphlets (CMIs) prepared by the appellant and, in that respect, concluded that the CMIs were fundamentally deficient and failed to address the reality of the dispensing at the pharmacy, where it was routine to dispense multiple anabolic steroids together with one patient.[21]
[21] Primary Reasons [281]-[290].
The third issue of competency referred to was the appellant's level of insight into the risks of diversion of anabolic steroids. The Tribunal concluded that this revealed incompetence.
For that reason, when determining the appropriate penalty, the Tribunal concluded that:[22]
the [appellant's] conduct and his evidence before the Tribunal leave us far from satisfied the [appellant] grasps these fundamental aspects of the practice of pharmacy. It follows that we find that the appellant is permanently or indefinitely unfit for the practice of pharmacy in the sense set out in Khosa[23] and Cummings.[24]
In those circumstances, we find the appropriate order is to cancel the respondent's registration as a pharmacist.
[22] Primary Reasons [335]-[336].
[23] Legal Profession Complaints Committee and Khosa [2015] WASAT 107 [192].
[24] Council of the Queensland Law Society v Cummings [2004] QCA 138 [26]-[28].
In relation to the prospects of success, the appellant referred in particular to aspects of the reasons concerned with the question of competency and submits that the reasons revealed error, in as much as the issues of competence included matters concerning the appellant's competence as at the period of the breaches, that is, in 2008 and 2009. The appellant places particular emphasis, for example, on the findings concerning the CMIs, which were CMIs prepared during the relevant period.
I am prepared to assume for the purposes of the application for a stay that there is a reasonable prospect of success in that regard, although I note that those findings form only part of the overall consideration by the Tribunal in relation to competency. The more pressing issue in relation to the prospects of success, however, is whether or not the decision as a whole is likely to be attended by error as to the decision of the Tribunal to impose a cancellation and whether that amounts to a manifestly unreasonable and plainly unjust decision.
Those references which appear in the grounds of appeal are clearly references to the House v The King[25] principles that apply in relation to discretionary decisions generally. For the purposes of the stay application, I am prepared to assume that there is a reasonable prospect of success in relation to whether or not cancellation of the appellant's registration as a pharmacist and disqualification for three years was an error in a House v The King sense.
[25] House v The King [1936] HCA 40; (1936) 55 CLR 499.
Nevertheless, for the purposes of the stay application and the particular prejudice identified by the appellant, it is important to recognise that the fact that the stay application is premised on the collateral effects of the loss of registration of the pharmacy businesses under the Pharmacy Act means that unless there is a reasonable prospect that the appellant would avoid a cancellation or a suspension of his registration, the collateral effect would remain. That is, any period of suspension imposed by the Tribunal would have the consequences that have been identified under the Pharmacy Act.
For that reason, in order to demonstrate that a stay is required, in my view, it would be necessary that there be reasonable prospects of success of a result in favour of the appellant that would remove those consequences.
I have some considerable doubt as to whether or not there is a reasonable prospect of success such that the appellant would avoid entirely a period of suspension from his registration as a pharmacist. It is not appropriate to express, even at this time, any provisional view in relation to that matter. Suffice it to say that the seriousness of the conduct itself may, for reasons of protection of the public and the maintenance of the standards of the profession as a whole, justify a suspension regardless of the time that has elapsed since the conduct occurred.
For that reason, while I would accept for the purposes of the stay application that there are reasonable prospects of success, it is not in my view open to describe the prospects of avoiding even a suspension as strong on the basis of the current material.
One of the arguments that is put forward by the appellant as to the prospects of success is the fact that the Tribunal reached its decision in circumstances of a denial of procedural fairness, by issuing the decision with immediate effect, without the appellant having the opportunity to make submissions in relation to the outcome. The appellant also refers to the fact that the Tribunal was reconstituted during the period between the oral hearing and the final decision.
Reconstitution of the Tribunal was, of course, permitted pursuant to s 11(8) of the SAT Act. There could not, in my view, be a denial of procedural fairness by simply reconstituting the panel. Something more would be required. In addition, it is always open, and always was open, to the Tribunal to make orders having immediate effect.
Indeed, pursuant to s 82 of the SAT Act, the default position is that a decision of the Tribunal comes into effect immediately after it is given or at such later time as is specified in it. While it might be in many cases prudent for a Tribunal to defer the operative effect of a suspension or deregistration to enable the party to put their house in order, there is certainly no legal requirement for the Tribunal to do so.
Balance of convenience
Turning then to the balance of convenience.
The appellant's affidavit in support of the application for a stay was the subject of significant challenge in submissions by the Board. In that respect, there was no application to cross-examine the appellant in relation to his affidavit, although the affidavit filed on behalf of the Board from the Board's solicitor (Ms McKenzie) annexed correspondence in which the Board foreshadowed such an application, which Mr Hegde's solicitors responded would be opposed.
The Board, in the end, focused upon the inadequacies of the affidavit filed on behalf of Mr Hegde, focussing on as to what that affidavit did not reveal and the matters that could be concluded from the affidavit itself.
I will give two examples in relation to that.
At [29] of his affidavit, Mr Hegde deposes that each of the pharmacies has a written lease for the premises at which they operate. Six years and eight years are identified to run in relation to the Beaumaris pharmacy and the Mount Lawley pharmacy respectively. Mr Hegde goes on:
A breach of the leases will have significant financial ramifications for me, as I have guaranteed the obligations under the leases.
Ms McKenzie's affidavit reveals that a request was made for the leases, which was refused.[26] Ms McKenzie then deposes to having conducted title searches that reveal that the two properties upon which the pharmacies are operated are owned by Mr Hegde or a company solely owned by Mr Hegde, Chetan Enterprises Pty Ltd.[27]
[26] Affidavit of Jenny Maree McKenzie dated 21 August 2020 [32].
[27] Affidavit of Jenny Maree McKenzie dated 21 August 2020 [15].
I am asked to draw the inference and do draw the inference that the reference to the leases in Mr Hegde's affidavit at [29] could only be leases between the appellant as tenant and the company controlled by the appellant, Chetan Enterprises Pty Ltd, as landlord. In light of that inference, the reference in Mr Hegde's affidavit to the significant ramifications in relation to a breach of the lease takes on a rather different complexion than if there was a prospect of a wholly third-party landlord.
In addition, Mr Hegde's affidavit makes no reference to any action taken, or preparations made, by him in relation to the status or the ownership of the pharmacies in anticipation of a potentially adverse decision by the Tribunal. In that regard, in his affidavit from [18] through to [26], there is general evidence in relation to when the pharmacies would need to close and evidence that it was unclear to him whether he could take steps to try and sell them, that it was impracticable to do so, that they would require an evaluation and that if they were forced to close now, 'a significant asset worth millions of dollars will be rendered worthless and my annual income will be lost.'
One may infer, at a general level, that the requirement to permanently close the pharmacies without the opportunity to engage in an orderly process of transfer of ownership or some other management arrangement consistent with the Pharmacy Act would be difficult and potentially give rise to financial difficulties for Mr Hegde. Nevertheless, what is conspicuously absent from the affidavit and which appears to some extent inconsistent with the evidence that Mr Hegde gave at the penalty hearing in relation to his intentions, is any preparation or consideration that what he is now faced with was a position that he needed to take into account and prepare for. As I put to counsel in the course of the hearing, Mr Hegde must have known that a day of reckoning was coming in relation to his registration as a pharmacist, and, at the very least, he must have known that there was a real prospect that he would face a period of suspension that would affect the registration of the pharmacies.
Of course, Mr Hegde gives no evidence in relation to any advice that he received in that regard, and I do not draw any inference as to any advice that he did receive, save to note that being the owner of a registered pharmacy under the Pharmacy Act, he must have been generally familiar with the requirements of registration. It ought to have been at the forefront of Mr Hegde's mind as to what would occur in the event that his registration were cancelled or suspended.
To that extent, the fact that his affidavit reveals the potential for adverse consequences under the Pharmacy Act can be said to be, at least in part, prejudice of his own making.
The public interest is a particularly important matter in the exercise of my discretion in this regard, as evidenced by the passage from Jemielita.[28] In my view, there are two potentially competing aspects of the public interest in the present case.
[28] See [15] above.
The first is the clear public interest in the conclusions of the Tribunal as to the competency of the appellant being carried into effect. It would be inappropriate, in my view, to regard those conclusions of the Tribunal as in any way provisional pending an appeal. They are conclusions that have been reached by a specialist Tribunal charged with the determination of complaints.
There is an important public interest in treating those orders of the Tribunal, including the timing of them, as being matters properly reposed to the Tribunal in the first instance. In that regard, for example, in Attia v Health Care Complaints Commission, McCallum J, in refusing to reverse the effect of the Tribunal's orders even on an interlocutory basis, said that she had placed considerable weight on her assessment of the apparent strength of the appeal and:[29]
the gravity of second-guessing, in an urgent hearing, the conclusions reached by the Tribunal charged with the determination of the complaints.
[29] Attia v Health Care Complaints Commission [2017] NSWSC 178 [67] (McCallum J).
The Tribunal has found that the appellant is not a competent practitioner for the reasons it has given. There is not a sufficient basis on the evidence before me, and in the urgent nature of this hearing, for me to second-guess that assessment. To that extent, there is a real public interest against a stay which would enable the appellant to continue to practice as a pharmacist.
As was explored in the course of submissions, it might be that conditions could be imposed as to Mr Hegde's dispensing of anabolic steroids or in relation to his dispensing of medications generally, leaving him, as it were, as a pharmacist in name only so as to retain the character of a pharmacist under the Pharmacy Act. While I have given serious consideration to that course, in my view it would undermine, to a significant degree, the statutory scheme of regulation reflected in the Pharmacy Act.
In particular, s 56(1) of the Pharmacy Act provides that if the person in whose name a pharmacy is registered under s 39 is a pharmacist, then that pharmacist has overall responsibility for this pharmacy business carried on at the pharmacy. That is, if I were to order that the cancellation of Mr Hegde's registration be stayed on condition that he not dispense any medication such that he was, in effect, a pharmacist in name only, it would not change the fact that pursuant to s 56(1) of the Pharmacy Act, he would as a matter of law have overall responsibility for the pharmacy business carried on at the pharmacy.
In my view, therefore, an order that had that effect would be one that would be contrary to the scheme of the Pharmacy Act.
The other aspect of the public interest which operates in the other direction and which has weighed heavily in my consideration of this matter is the fact that the closure of two pharmacies in Mount Lawley and Beaumaris would have the potential for a significant effect on the community and provision of healthcare services in the community.
The closure of two pharmacies may affect the capacity of members of the community to access pharmaceutical services, albeit that the Board has given evidence that there are other pharmacies in both locations. I can take judicial notice of the fact that many people in the community, particularly more vulnerable members of the community, may have established relationships with particular pharmacies in relation to the dispensing of their essential medications, such that any close of any pharmacy is likely to have, at least in the short term, an impact on members of the community's access to healthcare services. In addition, of course, there would be an impact on employees of the Mount Lawley pharmacy and the Beaumaris pharmacy. I take into account that serious public interest.
In the end, however, it seems to me that given the significance of the findings against the appellant and the nature of the statutory scheme regulating pharmacists and pharmacies, to order a stay of the Tribunal's orders would be contrary to the public interest as a whole.
That is not to say that the continuation of the two pharmacies in some form may be an important matter for the consideration of the authorities pending appeal. In that regard and for that reason, in my view, there is a proper basis for considering the urgent determination of this appeal so as to enable the appellant's status and any collateral effect on these pharmacies to be known as soon as is reasonably practicable.
I would therefore propose to order that there be an urgent appeal order. I am satisfied that the appeal can be heard sufficiently quickly that any long-term or more significant effect on the community as a result of the orders of the Tribunal can be avoided, or at least significantly reduced. That is, it may be, for example, that the Registration Board does not consider the final determination of the cancellation of the registration of those two pharmacies until after the determination of the appeal.
Even if it did, it would only require a cessation of activities for a short period prior to the appeal, if the appeal is successful. In light of these considerations and given, in my view, the important public interest in the recognition of the Tribunal's orders and the important principle that those orders should be given effect unless there are special circumstances, I would exercise my discretion against a stay and would refuse the application for a stay or injunction of the Tribunal's orders, but would order that the appeal be the subject of an urgent appeal order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Principal Associate to the Honourable Chief Justice Quinlan23 OCTOBER 2020
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