Hegde v Pharmacy Board of Australia [No 2]
[2020] WASC 384
•23 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: HEGDE -v- PHARMACY BOARD OF AUSTRALIA [No 2] [2020] WASC 384
CORAM: QUINLAN CJ
HEARD: 25 SEPTEMBER 2020
DELIVERED : 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 - Finding of professional misconduct - Dispensing of anabolic androgenic steroids - Appropriate penalty - Whether Tribunal erred in finding the appellant is not a competent pharmacist - Whether the Tribunal erred in finding permanent or indefinite unfitness to practise - Whether Tribunal erred in exercise of its discretion
State Administrative Tribunal - Vocational regulation - Tribunal reconstituted between hearing and decision - Credibility findings - Nature of appeal
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Appeal allowed
Matter sent back to the Tribunal
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):
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Archer v Howell (No 2) (1992) 10 WAR 33
Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32; [2004] Aust Torts Reports 81-730
Brett v Rees [2009] WASCA 159
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334
Child and Adolescent Health Service v Mabior [2019] WASCA 151 (2019) 55 WAR 208
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2002] VSCA 189; (2002) 6 VR 1
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Health Care Complaints Commission v Do [2014] NSWCA 307
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992)
Joyce v Anderson [2020] WASCA 48
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Khosa v Legal Profession Complaints Committee) and New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Legal Profession Complaints Committee v Oud [2019] WASC 287
Legal Profession Complaints Committee v Rayney [2020] WASC 131
Legal Profession Complaints Committee v Tolson [2020] WASC 158
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Ong v The Dental Board of Western Australia (unreported, WASC, Library No 950442, 25 August 1995)
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Panegyres v Medical Board of Australia [2020] WASCA 58
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Pharmacy Board of Australia and Hegde [2020] WASAT 89
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
SH v Chief Executive Officer of Department of Communities [2019] WASCA 31
Shephard v Tuanie Paul Galea as executor and trustee of the estate of the late Joseph Galea [2020] WASCA 152
Singh v Medical Board of Australia [2018] WASCA 125
Singh v Medical Board of Australia [2019] WASCA 51
Table of Contents
Introduction
The Primary Reasons
Agreed Facts
The finding of professional misconduct
The significance of competency
The Tribunal's reasons as to competency
Mr Hegde's answers to questions on his dispensing
Mr Hegde's Consumer Medical Information pamphlets
Mr Hegde's level of insight into the risks of diversion
Grounds of appeal
The nature of the appeal
Ground 1 - Fitness to practise and competency
The relationship between competency and fitness to practise
Fitness and competency in a penalty hearing
Consideration of competency generally
Competency issue 1 - Mr Hegde's answers to questions on his dispensing
Competency issue 2 - Mr Hegde's CMIs
Competency Issue 3 - Mr Hegde's level of insight into the risks of diversion
Conclusion in relation to ground 1
Ground 2 – House v The King express and implied error
Ground 3 – Credibility findings
Conclusions and orders
Schedule
QUINLAN CJ:
Introduction
The appellant, Chetan Hegde, is a pharmacist.
On 16 May 2017, the Pharmacy Board of Australia (the Board) brought disciplinary proceedings in the State Administrative Tribunal (the Tribunal) in relation to Mr Hegde's dispensing of anabolic androgenic steroids in the period from 1 January 2008 to 30 April 2009 (the Relevant Period).
Following various interlocutory processes, Mr Hegde ultimately admitted that, during the Relevant Period, he had behaved in a way that constituted professional misconduct within the meaning of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the National Law). On 28 June 2019, the parties filed an Agreed Statement of Facts setting out the factual basis for Mr Hegde's admission.
On 20 September 2019 the Tribunal conducted a hearing in relation to the penalty that should be imposed upon Mr Hegde pursuant to the National Law (the penalty hearing).
On 7 August 2020 the Tribunal made orders pursuant to s 196 of the National Law, including orders that:[1]
(a)Mr Hegde's registration as a pharmacist be cancelled with effect from the publication of the orders; and
(b)Mr Hegde be disqualified from applying to re-register as a pharmacist for a period of three years.
[1] Pharmacy Board of Australia and Hegde [2020] WASAT 89 (Primary Reasons), [360].
Mr Hegde now appeals from the decision of the Tribunal and, in particular, the orders cancelling his registration and disqualifying him from applying to re-register, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). He requires leave to appeal.[2] Leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.[3]
[2] SAT Act, s 105(1).
[3] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 (SH v Chief Executive Officer of Department of Communities)[51] (Quinlan CJ, Mitchell & Pritchard JJA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] (Buss JA, Wheeler & Pullin JJA agreeing).
The Primary Reasons
Before turning to the grounds of appeal it is necessary to set out the relevant parts of the Primary Reasons. What follows does not set out all of the Tribunal's comprehensive reasons. Rather it deals with those matters of particular significance to the resolution of the appeal.
As noted above, the penalty hearing proceeded upon the basis of admissions by Mr Hegde, together with the Agreed Statement of Facts. The Agreed Statement of Facts was supplemented by evidence before the Tribunal on 20 September 2019, which consisted of both documentary evidence and viva voce evidence from Dr Robin Durston and Mr Hegde.
Agreed Facts
The Statement of Agreed Facts included the following matters.
Mr Hegde was first registered as a pharmacist on 2 February 2000 and, up to the hearing date, had held continuous registration since that date.[4]
[4] Primary Reasons [11].
At all material times, Mr Hegde was:[5]
(a)the sole proprietor of McKenzies Pharmacy in Mount Lawley, Western Australia (Pharmacy); and
(b)the pharmacist and holder of the poisons licence at the Pharmacy.
[5] Primary Reasons [11].
In the Relevant Period, Mr Hegde engaged in the practice of dispensing anabolic androgenic steroids to patients:[6]
(a)in quantities and combinations which Mr Hegde ought to have known 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 Mr Hegde ought to have known that the quantities and/or combinations of medication supplied was likely to constitute an unacceptable hazard to health and had the potential for misuse, abuse or psychological and/or physical dependency.
[6] Primary Reasons [13].
The anabolic androgenic steroids dispensed by Mr Hegde were in the form of Sustanon, Deca-Durabolin, Stanozolol, Oxandrolone, Methandrostenolone and Oxymethalone.
Anabolic androgenic steroids can be used to achieve greater muscle mass and Mr Hegde ought to have known that they have the potential to be:[7]
(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.
[7] Primary Reasons [16].
Potential adverse side effects of the use of anabolic androgenic steroids or excessive or prolonged use of anabolic androgenic steroids include (but are not limited to):[8]
[8] Primary Reasons [17].
(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.
The finding of professional misconduct
On the basis of the above agreed facts Mr Hegde admitted that he had engaged in 'professional misconduct' (within the meaning of s 5 of the National Law) in that, during the Relevant Period, he:[9]
[9] Primary Reasons [18].
(a) engaged in the practice of dispensing anabolic androgenic steroids to patients for a purpose which he 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 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 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 accepted these admissions and made findings in terms of the admissions and their characterisation as 'professional misconduct'.
In particular the Tribunal found as follows:[10]
The respondent's misconduct during the Relevant Period was intensive and voluminous. During the Relevant Period there were 4737 dispensing episodes (at an average dispensing rate of 296 per month). The total number of patients for whom prescriptions were dispensed during the Relevant Period is 828. The respondent undertook compounding training in order to be able to compound and dispense anabolic steroids.
… [T]he respondent's conduct was hazardous in that his dispensing resulted in elevated risks to his patients. The misconduct extended over 16 months.
The respondent's conduct was substantially below the standard of conduct that reasonably expected of a pharmacist with the respondent's experience. Having regard to the risks associated with the dispensing (to both his patients and also the public), it was also conduct that may properly be regarded as 'disgraceful or dishonourable'... The conduct was inconsistent with the respondent being a fit and proper person to hold registration as a pharmacist.
[10] Primary Reasons [30]-[32]. References to 'the respondent' in the Primary Reasons are, of course, references to Mr Hegde.
Three observations should be made at this point in relation to the finding of professional misconduct.
First, 'professional misconduct' is the most serious of the various forms of breaches of professional standards by health practitioners defined in the National Law. The other two forms of such conduct are 'unsatisfactory professional conduct' and 'unprofessional conduct'. The finding of 'professional misconduct' therefore underscores the seriousness of Mr Hegde's breach of his professional obligations. It was clearly serious misconduct.
Secondly, it should also be noted that the Tribunal's finding of 'professional misconduct' was expressly based upon the finding that Mr Hegde 'ought to have known' that his conduct was deficient in the various respects set out above. The Board's initial application to the Tribunal, filed on 16 May 2017, had also included allegations of actual knowledge in the relation to each of those deficiencies. For example the application alleged, inter alia, that Mr Hegde knew that he was dispensing anabolic androgenic steroids in quantities and in combinations which were not necessary for any proper therapeutic purpose and were likely to constitute an unacceptable hazard to the health of patients.
The allegations of actual knowledge were not maintained by the Board in the agreed facts and findings, or at the penalty hearing. To that extent, the Board and the Tribunal proceeded upon the basis of a finding that was prima facie less serious, in terms of Mr Hegde's culpability, than had been alleged by the Board in the initial application.[11] It must be emphasised, of course, that given the protective nature of the disciplinary proceedings, no particular category of case will dictate or require any particular disciplinary outcome. Each case will depend upon an evaluative judgement to be made by the Tribunal as to the nature and seriousness of the conduct in all of the circumstances of the particular case.[12]
[11] As the Tribunal recognised at Primary Reasons [319].
[12] Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 [20] (Basten JA, Leeming & Payne JJA agreeing); Singh v Medical Board of Australia [2019] WASCA 51 [39] (Quinlan CJ & Pritchard JA).
Thirdly, as will be apparent from the Relevant Period (as defined in the Primary Reasons), Mr Hegde's professional misconduct occurred some 10 years prior to the penalty hearing. It was also not disputed that in 2010, Mr Hegde, of his own volition, took steps to cease anabolic compounding and to limit dispensing the quantity of anabolic steroids that were being prescribed.[13]
[13] Primary Reasons [139].
There was no allegation made by the Board to the Tribunal, and no evidence adduced by it, as to Mr Hegde's conduct in the years following the misconduct. As the Tribunal observed, the Board's case was 'not premised on an argument that [Mr Hegde's] dispensing practice since April 2009 is of concern or constitutes any kind of conduct that would attract disciplinary sanction'.[14]
The significance of competency
[14] Primary Reasons [140].
The Tribunal, in the Primary Reasons, comprehensively and accurately set out the principles applicable to determining the appropriate penalty, or disciplinary response, under the National Law. It is not necessary for me to repeat that summary.
Of significance in the appeal, however, was the relevance of Mr Hegde's competence as a pharmacist to that determination. The Tribunal recognised that, while the Board's application did not specifically allege that Mr Hegde was incompetent, it made clear that, as an aspect of protecting the public, the Tribunal could, and should, assess Mr Hegde's competency. I will have more to say about that later, although, as a general proposition, this is no doubt correct. Mr Hegde did not contend otherwise.
In that regard, the Tribunal ultimately concluded that 'we are not satisfied that [Mr Hegde] is a competent pharmacist'.[15] Elsewhere, the Tribunal expressed this conclusion as a finding that Mr Hegde is 'not competent'.[16]
[15] Primary Reasons [259].
[16] Primary Reasons [354] (see also [280], [290], [294]).
It is clear that the Tribunal's findings as to Mr Hegde's competency were a central consideration for the Tribunal in reaching the conclusion as to penalty that it did, and in particular that Mr Hegde's registration should be cancelled rather than suspended.
In that regard the Tribunal said:[17]
Our concerns with the respondent's competency are not peripheral issues. To the contrary, they go to very core of the practice of pharmacy and the dispensing of drugs for patients. A pharmacist must have a clear understanding of their professional obligations to exercise independent judgment and to make the needs of the patient the central consideration.
Furthermore, because our concerns go to the core aspects of pharmaceutical practice, we are not satisfied that at the end of a period of suspension the respondent would be a fit and proper person to resume practice. Our concerns do not relate to some 'defect' which has, or could readily be, overcome in the sense explained in Chen v Health Care Complaints Commissions [2017] NSWCA 186; (2017) 95 NSWLR 334 at [20] (Basten JA, Leeming JA and Payne JA).
[17] Primary Reasons [330]-[331].
The Tribunal's overall conclusion, on this point, was as follows:[18]
As we have now stressed a number of times … a number of factors go in [Mr Hegde's] favour including, in particular, the length of time since the misconduct. Had the respondent been a forthright witness who had taken responsibility for his misconduct and demonstrated how he had grown as a result, and were there no residual concerns as to his competency, we may have been more attracted to an order for a relatively short period of disqualification or suspension. However, given our overall findings in this matter …, such an order cannot be regarded as appropriate.
[18] Primary Reasons [341].
Accordingly, while they were not the only matters relied upon by the Tribunal in reaching its decision, the Tribunal's findings as to Mr Hegde's 'competence' were critical to its overall conclusions. The Tribunal's reasons for those findings are therefore central to the resolution of this appeal.
The Tribunal's reasons as to competency
The Tribunal stated that, while a range of competency issues were raised by the Board, it considered it necessary only to examine three matters in detail.
Given their importance for the resolution of the appeal it is necessary to set out the Tribunal's reasons in relation to each matter (or competency issue) in full.
Mr Hegde's answers to questions on his dispensing
The first competency issue examined by the Tribunal concerned Mr Hegde's evidence in relation to the dispensing of medication.
The Tribunal said:[19]
[19] Primary Reasons [261]-[280].
261The first area of concern for the Tribunal on the question of competency arises from his responses to some questions posed to him in re-examination.
262Mr Hershowitz, counsel for the respondent, posed a series of questions to the respondent in the form of 'what ifs' in relation to a number of dispensing scenarios: ts 125-126, 20 September 2019. These questions went directly to the question of his competency. The respondent's answers to these questions leave us far from satisfied that he is a competent pharmacist. These questions included the following:
MR HERSHOWITZ: Mr Hegde, if someone walks into your pharmacy tomorrow and they had multiple repeats for any anabolic steroid, what would your procedure be? What would you do?
MR HEGDE: - - - Refusal of dispensing that drug.
MR HERSHOWITZ: Why?
MR HEGDE: - - - Because it's not for a therapeutic need.
263There are a number of things that can be said about this answer. The first is that the respondent appears to conflate multiple repeats with therapeutic need. We agree multiple repeats may signal that the therapeutic indication does not accord what he expects the intended use is for. But the pharmacist needs to enquire further. It is no real answer nor does it demonstrate competency - to give a blanket answer of 'no' in the circumstances put to him.
264 We consider that a competent pharmacist would make reference to need to ensure that the dispensing is safe. This could be done, if necessary, by reference to the Pharmacy Guild of Australia Guidelines for Dispensing (established pursuant to s 39 of the National Law).
265The pharmacist needs to be satisfied that the intended use of the medication accords with the therapeutic indication. A patient may present with a prescription for multiple repeats of an anabolic steroid which relate to a genuine therapeutic need. A competent practitioner does not turn a patient away just because they present with multiple repeats. The respondent does not seem to be cognisant of a vital professional lodestar in his answer: Would the dispensing be safe for the patient?
266The respondent was further questioned by his counsel.
MR HERSHOWITZ: If somebody came in tomorrow with a prescription for both Deca-Durabolin, Sustanon and possibly something else, namely, different anabolic steroids, what would you do?
MR HEGDE: - - - We would refuse dispensing and – and speak to the doctor about it.
267The same concerns also permeate this answer. The respondent needs to be able to say that he would hold the prescription, talk to the prescribing doctor and the patient and then make a decision as to whether to dispense. If he is going to refuse to dispense, the patient also needs to know why.
268It is also the case that there is no proper therapeutic need for multiple anabolic steroids. In the scenario put to him, the respondent should also keep the prescription and report what may be suspected abuse. The National Competency Standard Domain 1 (Practise pharmacy in a professional and ethical manner) and Pharmacy Board of Australia Guideline for Dispensing (section 2) clearly set out the obligations of the pharmacist to protect the patient from harm and also to prevent misuse of drugs.
269The respondent's answer does not demonstrate that he understands the basis on which he should refuse to dispense and how that process would be managed. His answer evinces a fundamental concern for the Tribunal: a striking failure to consider patient safety. Combinations of multiple steroids provide a clear indication for misuse and can be very hazardous resulting in psychological and/or physical dependency. The respondent's answers do not address these fundamental issues at any level.
270The respondent was then asked:
MR HERSHOWITZ: And what would you do tomorrow if somebody walked into your pharmacy and said, 'I just want' - he has a prescription for three Sustanon and nothing more, what's your process and procedure when that sort of script comes in?
MR HEGDE: - - - It's - it's my - the process that I've started from before is that they have to speak to the doctor or the individual - because it's three ampules and that's roughly - if they use one ampule every two weeks or what their dosage is – the pharmacist has to query what their dosage is. We have to make sure that it's a valid prescription. We speak to the doctor for all the supply.
271The respondent's answer to this question demonstrates a failure to understand that he has a professional responsibility, and a duty to exercise independent judgment, about each and every prescription that is presented to him as to whether it is appropriate and safe for the patient.
272His answer to the question evinces no real awareness of those professional responsibilities. His only reference point seems to be to avoid attracting trouble for dispensing an anabolic steroid.
273 In the scenario put to him by his counsel with this question, we find that a competent pharmacist would make the patient the central concern by inquiring what the medication was for, what other medications were they taking, how long they had been told they need the medication for and how would the medication be taken - would the medication be injected by the doctor or would they inject it themselves?
274The respondent should have so many more questions than just whether the prescription was valid.
275The question of competency goes to the paramount consideration: the need to protect the public… In circumstances where his competency was very much in issue, the respondent was given every opportunity to demonstrate his competency in terms of his current dispensing practices. The Tribunal considers that he did not demonstrate competency.
276We consider that some allowance must be made for the fact that the respondent was under stress in that he was giving evidence. However, these were not difficult questions: they were open questions that invited broad answers which were put to him by his own counsel in re-examination. He was presented with an invitation to satisfy the Tribunal that we need not be concerned about his competency.
277Our concern is not just that his answers were less than complete or that they were not 'model' or 'perfect' answers. Given the context in which the questions were asked, as we have explained, some latitude should be shown to the respondent.
278However, even taking that approach, his answers fall well short of what we would regard as being the answers of a reasonably competent pharmacist. The respondent's dispensing practice raises fundamental issues. The welfare, safety and needs of patients appears to have given way to accommodate the respondent's desire to now avoid any trouble by dispensing anabolic steroids.
279Furthermore, the respondent still does not seem to grasp that his duty is to exercise independent judgment in relation to dispensing. While conversations with prescribing doctors help inform that decision – the decision to dispense drugs to a patient is the pharmacist's alone.
280In our view, the respondent has not learnt the underlying lessons from his dispensing during the Relevant Period. It is no answer to simply defer to assurances or opinions given by others. We find that the respondent is yet to develop that level if insight into the responsibilities that come with the privilege of dispensing drugs to patients. It follows that we find that he is not currently a competent pharmacist in terms of his dispensing.
Mr Hegde's Consumer Medical Information pamphlets
The second competency issue addressed by the Tribunal concerned Consumer Medical Information pamphlets prepared by Mr Hegde (CMIs).
Some context is necessary here.
The appellant gave evidence at the penalty hearing that, in 2003, when he purchased the Pharmacy he caused to be prepared CMIs for all of the anabolic steroids dispensed at the Pharmacy.[20] The evidence in chief (contained in his witness statement) in relation to the CMIs included the following:[21]
21.I also caused to be prepared CMIs for all anabolic steroids dispensed at the pharmacy.
22.By way of example, I refer to CMIs for Stanozolol, Oxymetholone and Methadrostenolone.
23.The CMIs provide relevant information to the patient regarding special considerations to be taken into account before taking the medication, how it should be taken, the side effects of the medication, what other drugs would affect the medication, information about emergency/overdose and other important information.
[20] Exhibit B, [17]-[19].
[21] Exhibit B, [21]-[23].
An example of one of the CMIs, relating to the anabolic steroid Stanozolol, is reproduced in the Schedule to these reasons.
In that context, the Tribunal's reasons in relation to competency included the following:[22]
[22] Primary Reasons [281]-[290].
281The second area of concern is the CMIs which we find raise competency issues. Until his cross-examination at the penalty hearing he relied on the preparation of these CMIs as showing an awareness of the need for patient safety during the Relevant Period. His submissions on penalty even emphasised this point: Respondent's Closing Submission's at para 60.
282In his witness statement prepared for the penalty hearing he refers to his development of the CMIs - which are in effect information sheets handed to patients with prescriptions - to demonstrate the precautions he took as a pharmacist in dispensing anabolic steroids: Exhibit B, paras 19(e) and 21-23.
283Towards the end of his cross-examination, the following exchanges took place:
MS STANTON: Could the witness please be shown the CMI documents. They're not in any book, but they have been produced to the tribunal. Now, looking at those documents, Mr Hegde, are you satisfied that those documents inform patients adequately of the adverse effects of the drugs that they're dealing with as you sit here now?
MR HEGDE: - - - As I sit here now and reflect, I would say no, because I think they should have been much more thorough, looking back, and they should have talked about - that's what you had described. They should have had more stuff to do with it.
284The respondent was then further cross-examined on the content of the CMIs and the respondent's counsel raised an objection on the basis that the CMIs were produced at the relevant time and were no longer relied upon by the respondent: ts 121, 20 September 2019.
285While we accept that the CMIs were prepared a long time ago, it is not correct to say that the respondent no longer relied upon them. Throughout the proceedings the respondent put his preparation of the CMIs forward as almost a mitigatory factor in assessing his overall conduct as they demonstrate, he says, that he was aware of patient safety issues. Paragraph 23 of his witness statement (Exhibit B), which was prepared in July 2019 for the purposes of the penalty hearing, provides as follows:
The CMIs provide relevant information to the patient regarding special considerations to be taken into account before taking the medication, how it should be taken, the side effects of the medication, what other drugs would affect the mediation, information about emergency/overdose and other important information.
286The problem is - and it is a problem that goes to competency - is that we consider the CMIs were fundamentally deficient, even hazardous. This is because not only were the CMIs incomplete (which we accept the respondent properly conceded when questioned), but also because the CMIs failed to address the reality of the dispensing at the Pharmacy, where it was routine to dispense multiple anabolic steroids together to one patient.
287 The consumption of multiple anabolic steroids in combination (sometimes referred to as 'stacking': ts 88, 114, 115, 20 September 2019) significantly elevates the risk of adverse consequences for patients. These risks are alluded to in the supplementary report prepared by Ms Seubert: Exhibit H para 8(d); Exhibit C, pages 664-666.
288The respondent did not take the opportunity in his own witness statement to distance himself from the content of his CMIs. It was only during his cross-examination on 20 September 2019 that the respondent gave any indication that the CMIs he prepared were anything less than adequate, in that he agreed they 'should have had more stuff [in them]': ts 120-121, 20 September 2019.
289However, nowhere in his evidence does the respondent directly address the plain inadequacies of each of the CMIs in the context of his practice of routinely dispensing multiple anabolic steroids to patients. We consider his failure to clearly - and comprehensibly - identify the manifest shortcomings of his CMIs which were used as an element of dispensing practice during the Relevant Period goes to the respondent's competency.
290It follows that we accept the Applicant's Closing Submissions (at paras 116-117) that the respondent's CMIs, together with his oral evidence in relation to these, reveal incompetence.
Mr Hegde's level of insight into the risks of diversion
The final competency issue addressed by the Tribunal concerned the risks of diversion of anabolic steroids. As will be recalled, one of the admitted deficiencies forming the basis for the finding of professional misconduct was that Mr Hegde ought to have known of the unacceptable hazard to the health of others to whom those drugs could be on-sold, referring, in essence, to a 'black market' for anabolic steroids.
In this regard the Tribunal said:[23]
[23] Primary Reasons [291]-[294].
291The third area of concern on the issue of competency, is the respondent's level of insight into the risks of diversion of anabolic steroids. We agree with the Applicant's Closing Submissions (set out at [100] above) that the respondent's level of insight into the risks of diversion of anabolic steroids reveals incompetence. The following exchanges took place at the penalty hearing:
WALLACE MS: Mr Hegde, what's your understanding now, though?
MR HEGDE: - - - Like, now we would never - we would - we - we - we've been through the last four years - we - obviously we - in my head, we've shut this all up when we ceased in two thousand and - -
WALLACE MS: - - - The question was what would be the value of these particular drugs - - -?
MR HEGDE: - - - I wouldn't - - -
- - - on what you refer to - - -? - - - I wouldn't know what the dollar value - - -
MS WALLACE: Let me just finish. What you refer to as the black market. What would be the value of in your understanding now, not then - - -?
MR HEGDE: - - - I - I don't - I actually don't - what the actual values are. The - - -
MS WALLACE: I don't mean monetary.
PETRUCCI MS: Is there a value?
MR HEGDE: - - - Okay. Sorry.
WALLACE MS: I don't mean monetary.
MR HEGDE: Sorry? - - - What would be the value? In a non - maybe used for a non-therapeutic need like what we described before that - that I had done for and that I know not to. It's 2010.
MS STANTON: What is there about anabolic steroids that makes them desirable for non-therapeutic purposes?
MR HEGDE: - - - Well, it must be for bodybuilding then.
MS STANTON: Right. Do you know that or are you just wondering?
MR HEGDE: - - - Well, likely based on the pictures that has been presented across there based on these last four years. Like, it's bodybuilding that - that they would be using it for as a non - - -
292 We agree with the Board that the respondent's responses to this line of questions was unacceptable. We say 'unacceptable' because the respondent took compounding training to enable him to compound anabolic steroids. The respondent then subsequently dispensed a very significant volume of anabolic steroids during the Relevant Period. In that context, the respondent's inability to clearly articulate that he understood the risks to the public that arise from the dispensing of significant volumes of anabolic steroids, and the possible diversion of drugs for illegitimate purposes, is unacceptable.
293It is also revealing that, in preparing for the penalty hearing, the respondent didn't find it necessary to review the evidence of Ms Suebert who did outline the extent of such risks: refer [107] above. His failure to look at Ms Suebert's (sic) work for the purposes of the penalty hearing, is consistent with our findings at [226][241] above, that the respondent has not demonstrated a sufficient understanding of, or insight into, his misconduct.
294 We accept that Applicant's submission (at para 105 of the Applicant's Closing Submissions) that the respondent's lack of insight on the public risks that arise from the diversion of large volumes of anabolic steroids reveal incompetence. We would also add that it is no answer to simply say that he longer dispenses anabolic steroids. That, of itself, does not demonstrate any real insight into such issues.
As noted above, the Tribunal's ultimate disposition was that Mr Hegde's registration should be cancelled and that he should be disqualified from applying for re-registration for a period of three years. Critical to that conclusion was the Tribunal's finding that Mr Hegde was, as at the date of its decision 'not competent',[24] or at the very least, its 'residual concerns as to his competency'.[25]
[24] Primary Reasons [354].
[25] Primary Reasons [341].
To similar effect, the Tribunal found that Mr Hegde, is 'permanently or indefinitely unfit for the practice of pharmacy'. In that regard, the Tribunal said:[26]
In our view, for the reasons we have explained, the respondent's conduct during the Relevant Period, and his evidence before the Tribunal, leave us far from satisfied that the respondent grasps these fundamental aspects of the practice of pharmacy. It follows that we find that the respondent is permanently or indefinitely unfit for the practice of pharmacy in the sense set out in Khosa at [192]; Cummins at [26]-[28].
[26] Primary Reasons [335], referring to Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa v Legal Profession Complaints Committee) and New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 respectively.
I turn now to the grounds of appeal.
Grounds of appeal
Mr Hegde brings the appeal on three grounds. The grounds of appeal are:
1.The State Administrative Tribunal (Tribunal) erred in fact and in law in finding that:
(a)the appellant is not a competent pharmacist; and/or
(b)the appellant is permanently or indefinitely unfit for the practice of pharmacy.
Particulars
i.The Tribunal erroneously assessed the appellant's competency at a time which is not relevant to reaching such a finding.
ii.The Tribunal failed to rely on the totality of the evidence and placed insufficient or no weight on relevant evidence.
iii.The Tribunal failed to ensure that the appellant was afforded procedural fairness by suggesting more appropriate answers without notice of those answers having been given to the appellant.
iv.The finding of permanent and indefinite unfitness to practise is inconsistent with other findings.
2.The Tribunal erred in law in the exercise of its discretion in cancelling the appellant's registration as a pharmacist and disqualifying him from applying to re-register as a pharmacist for a period of three years (Penalty Decision).
Particulars
i.The Penalty Decision amounts to a punishment.
ii.The Penalty Decision is unreasonable or plainly unjust.
iii.In the exercise of its discretion the Tribunal relied heavily on the finding that the appellant is permanently or indefinitely unfit for the practice of pharmacy which is error.
iv.In the exercise of its discretion the Tribunal erroneously relied in finding that the appellant was not a forthcoming nor candid witness.
v.Appellant relies on legal error implied from a decision which is unreasonable or plainly unjust.
3.The Tribunal erred in law in finding that the appellant was not a forthcoming witness, nor a candid witness.
Particulars
i.The Tribunal failed to give any or adequate reasons for its finding.
ii.In assessing the competing evidence of the appellant and Dr Durston, the Tribunal failed to use or palpably misused its advantages as 'the trial judges'.
Before turning to the individual grounds it is I appropriate that I make a number of preliminary remarks in relation to the nature of the appeal and the proceedings before the Tribunal.
The nature of the appeal
As will be apparent from ground 1, Mr Hegde appeals on the basis of both errors of law and errors of fact.
In this regard, it may be observed that the present appeal falls within the exception to the general rule in s 105(2) of the SAT Act that 'an appeal can only be brought on a question of law'. In particular, the present appeal is one to which s 105(13) of the SAT Act applies. Section 105(13) provides:
(13)Despite subsection (2), if the Tribunal’s decision –
(a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b) has the effect of depriving a person of the person’s capacity to lawfully pursue a vocation,
an appeal under this section 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.
There is no question that s 105(13) applies to the present case. The National Law is a 'relevant Act' within the meaning of s 105(13)[27] and the decision has the effect described in s 105(13)(b).
[27] SAT Act, s 103(14)(a); Schedule 1.
Nevertheless, it remains the case that the appeal is an appeal by way of rehearing. As Murphy and Mitchell JJA stated in Singh v Medical Board of Australia:[28]
Even where s 105(13) applies, an appeal to this court is an appeal by way of rehearing, rather than a de novo review of the evidence. If no further evidence is admitted and there has been no relevant change in the law, this court can interfere only if satisfied that there was error on the part of the Tribunal. While this court has power to admit additional evidence in an appeal, the circumstances in which it will do so are limited. Otherwise, factual error must be established by reference to the evidence before the Tribunal. (Footnotes omitted)
[28] Singh v Medical Board of Australia [2018] WASCA 125 [44] (Murphy & Mitchell JJA).
Neither party applied to adduce additional evidence in this appeal. Within the constraints marked out by the nature of the appellate process, I am therefore obliged to conduct a real review of the proceedings before the Tribunal, and the Tribunal's reasons, in determining whether Mr Hegde has established error.[29]
[29] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] (Gleeson CJ, Gummow & Kirby JJ).
Appellate restraint, in this context, is (ordinarily) closely related to the considerable advantage that the Tribunal has in having seen and heard the witnesses at a hearing. That advantage includes not only the demeanour of witnesses as a guide to credibility, but the 'feeling of a case' such as 'subtleties in the way questions were asked (or avoided) that are apparent in the heat of battle but which are not quite as clear in a more clinical examination of a transcript'.[30]
[30] Brett v Rees [2009] WASCA 159 [69] (Owen JA, Martin CJ & Miller JA agreeing); Child and Adolescent Health Service v Mabior [2019] WASCA 151 (2019) 55 WAR 208 [93]-[95] (Quinlan CJ, Murphy & Pritchard JJA).
The present appeal, however, is somewhat different. That is because the Tribunal panel that heard the evidence and saw the witnesses on 20 September 2019 was not the panel that reached the decision on 7 August 2020.
In that regard, the Tribunal was, between the penalty hearing and the decision, reconstituted pursuant to s 11(8) of the SAT Act, which provides:
The President may alter who is to constitute the Tribunal for the purpose of dealing with a matter, or anything relating to a matter, and the Tribunal as constituted after the alteration can have regard to any record of the proceeding of the Tribunal in relation to the matter before the alteration or any evidence taken in the proceeding before the alteration.
In the result, two of the three members of the reconstituted panel did not see or hear the witnesses before the Tribunal, including both the Senior Member and the Sessional Member with extensive or special experience on the same vocation as Mr Hegde.[31]
[31] That is, the member required by s 11(4)(b) of the SAT Act.
This, of course, placed the members of the Tribunal who finally determined the matter in a difficult position, insofar as there were matters of credibility to be considered in reaching findings of fact. In that regard, there certainly were issues of fact in relation to which there was a direct contest between Dr Durston and Mr Hegde, who both gave evidence and in relation to whom the Tribunal preferred the evidence of Dr Durston. In that context, for example, the Tribunal said:[32]
199We find that Dr Durston's oral evidence was generally truthful.
200By contrast, we find that the respondent was not a forthcoming nor candid witness. He was guarded and defensive. Given that his professional future was at stake, the Tribunal understands the reasons why that may have been the case. However, the respondent was not an impressive, nor was he a reliable, witness.
[32] Primary Reasons [199]-[200].
Ordinarily findings expressed in terms such as these might reasonably be understood to describe, at least in part, the particular advantages that flow from having seen and heard the witnesses. In the present case, however, they cannot be so understood.
In this context the recent summary of the law in Lee v Lee[33] by Bell, Gageler, Nettle and Edelman JJ assumes particular importance:
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (Emphasis added) (Footnotes omitted)
[33] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55]. See also Joyce v Anderson [2020] WASCA 48 [105]-[108] (Mitchell JA), [206]-[213] (Beech & Vaughan JJA); Shephard v Tuanie Paul Galea as executor and trustee of the estate of the late Joseph Galea [2020] WASCA 152 [124] (Quinlan CJ, Murphy & Mitchell JJA).
In the present case, given the reconstitution of the Tribunal, in my view it cannot be said that any of the Tribunal's factual findings 'are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the [Tribunal] as a result of seeing and hearing them give their evidence'. For completeness, I should observe that the fact that one member of the Tribunal saw and heard the witnesses does not alter that conclusion. The decision was the decision of the Tribunal as a whole, each member of which joined in the decision.
The consequence of this position is that, in the unusual circumstances of the present case, if I otherwise conclude that the Tribunal erred in making a particular finding of fact based on the record alone, I am obliged to give effect to that conclusion, notwithstanding that, in another case, I might have deferred to the advantages of the Tribunal.
I turn now to ground 1.
Ground 1 - Fitness to practise and competency
As is reflected in the summary of the Primary Reasons above, two critical findings lay at the heart of the Tribunal's decision to cancel Mr Hegde's registration as a pharmacist, namely that:
(a)Mr Hegde was 'not a competent pharmacist';[34] and
(b)Mr Hegde was 'permanently or indefinitely unfit for the practice of pharmacy'.[35]
[34] Primary Reasons [259], [280], [290], [294], [354].
[35] Primary Reasons [335].
Ground 1 challenges these findings.
The relationship between competency and fitness to practise
In the present case the finding as to lack of competency and the finding as to unfitness to practise were inextricably linked. Indeed, on one reading of the Primary Reasons they were one and the same finding. That is, in Mr Hegde's case, the basis for the finding that he was 'permanently or indefinitely unfit to practice' was because he was not competent, in that he failed to grasp fundamental aspects of the practice of pharmacy.[36]
[36] Primary Reasons [335].
The notion of competency, in this context, may be traced back, in this State, to the decision of Owen J in Jemielita v The Medical Board of Western Australia,[37] in which his Honour considered the expression 'gross carelessness or incompetency' in the Medical Act 1894 (WA). While it is necessary to be careful not to uncritically apply concepts from previous legislative schemes to the current context, Owen J's discussion of 'incompetence', in my view, remains instructive. It has not, in my respectful view, yet been improved upon.
[37] Jemielita v The Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992) (Jemielita).
His Honour observed in Jemielita that the concept of 'incompetency' involves an unfitness to practise in a particular field of medicine which is under examination or an inability to perform the techniques or judgments needed for the proper practice of medicine in that field, and that 'incompetency' is suggestive of a generalised deficiency in the way in which a professional handles his or her affairs.[38]
[38] Jemielita 18-19 (Owen J).
Following Jemielita, in Ong v The Dental Board of Western Australia[39] Murray J stated, in the context of the Dental Act 1939 (WA):
Incompetence in my opinion involves the view that such falling short of the proper standards of care and skill thought to be required on the occasion in question reveals a lack of knowledge or skill justifying an adverse judgment about the respondent's professional capacity or fitness to practise in the particular field of expertise involved.
[39] Ong v The Dental Board of Western Australia (unreported, WASC, Library No 950442, 25 August 1995) 12 (Murray J).
'Competence' in this context, accordingly, refers to the capacity (or ability) of the practitioner to exercise the requisite skill or judgment for the particular profession. It is clear that this was the sense in which the Tribunal understood the expression in the present case.[40]
[40] See Primary Reasons [249]-[252].
It should be noted, in this regard, that while the notions of 'competency' and 'fitness to practise' are closely related, they are not synonymous. That is because fitness to practise (whether it be, for example, as a legal practitioner, medical practitioner or pharmacist) is not confined to matters of competency. Fitness to practise is a broader concept than competency and involves other matters such as honesty and trustworthiness (which may extend beyond matters of skill and judgment).
A practitioner may, for example, be 'competent', in the sense of having the requisite degree of knowledge or skill, but, due to some other matter, may nevertheless be 'unfit to practise', because of some other character flaw or serious misconduct. There are a great many cases, for example, in relation to legal practitioners in which the Full Court has concluded that a person is not 'fit to practise' law, where no finding is made as to the practitioner's 'competence'.[41]
[41] See recently Legal Profession Complaints Committee v Oud [2019] WASC 287, Legal Profession Complaints Committee v Rayney [2020] WASC 131, Legal Profession Complaints Committee v Tolson [2020] WASC 158. In none of these decisions is there any reference to 'competence'.
Similarly, 'incompetence', in the context of the National Law, has been recognised as a distinct sub-set of unfitness to practise. This is expressly recognised in various provisions of the National Law.[42] In Health Care Complaints Commission v Do, for example, Meagher JA said:[43]
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. (Emphasis added)
[42] See e.g. National Law, s 55(1)(h).
[43] Health Care Complaints Commission v Do[2014] NSWCA 307 [35] (Meagher JA, Basten & Emmett JJA agreeing); Medical Board of Australia v Woollard[2017] WASCA 64; (2017) 51 WAR 32 [130] (Murphy & Mitchell JJA) Singh v Medical Board of Australia [2019] WASCA 51 [95] (Allanson J).
As I have observed, however, in the present case the Tribunal's conclusion as to Mr Hegde's 'fitness to practise' was closely linked to its conclusions as to his 'competency'. In that regard, any error in reaching the latter conclusions would, in the circumstances of this case, equally impugn the former.
Before turning to those conclusions, it is appropriate to say something of the way in which 'competency' may arise in a penalty hearing, in a case such as the present.
Fitness and competency in a penalty hearing
As will be apparent from the immediately preceding discussion, the 'competence' of a practitioner, in the sense of a generalised deficiency in the practitioner's capacity to possess, and exercise, the necessary knowledge and skill required of their field of expertise, can be, and often is, a matter directly and expressly referred to the Tribunal under the National Law.
To allege that a registered health practitioner is 'incompetent' is obviously a serious allegation. It is one that, ordinarily, would be expected to be distinctly pleaded, so as to provide the practitioner adversely affected by the decision a reasonable opportunity to adduce evidence and to respond to it.
Similarly, given the seriousness of the allegation that a registered practitioner is incompetent, the Tribunal in determining such an application must be mindful of the principles set out in decisions such as Briginshaw v Briginshaw.[44] That is, while an allegation of professional incompetence is to be established on the balance of probabilities, satisfaction according to that standard must take into account the nature and consequence of the fact or facts to be proved, the seriousness of any allegation made, the inherent unlikelihood of an occurrence of a given description and the gravity of the consequences flowing from a particular finding.[45]
[44] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw v Briginshaw).
[45] Briginshaw v Briginshaw, 362-363 (Dixon J); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521-522 (Barwick CJ, Kitto, Taylor, Menzies & Windeyer JJ).
Similarly, if a disciplinary allegation is enlarged in a significant way during the course of a hearing, the practitioner must be told and given an opportunity to answer. A significant change in the nature of a disciplinary hearing, without notice, would amount to a denial of natural justice.[46]
[46] Archer v Howell (No 2) (1992) 10 WAR 33, 50 (Rowland J, Malcolm CJ & Franklyn JJ agreeing).
So far what I have said under this heading has been directed to allegations of incompetency expressly made, and particularised, in a referral to the Tribunal.
What happens when there is no such allegation? In the present case, for example, the Tribunal expressly acknowledged that the Board's application did not specifically allege that Mr Hegde was incompetent.[47]
[47] Primary Reasons [246].
How should competency and fitness be addressed, in such a case, at the point of the determination of penalty?
A number of general observations may be made in this regard.
First, the nature of a particular allegation, established to the satisfaction of the Tribunal, may itself naturally raise questions as to the competency (or fitness) of the practitioner. In the present case, for example, the fact that the finding of professional misconduct involved deficiencies in Mr Hegde's professional practice which he 'ought to have known' about, naturally raises questions as to why he did not know, and whether that lack of knowledge is likely to be a continuing risk to the public.
Secondly, there will often be matters going to a practitioner's fitness to practise that will be self-evident from the nature of the proceedings and the issues joined between the parties. A practitioner's candour and insight, as exhibited during the hearing may well be significant matters for the Tribunal to consider.
This aspect of disciplinary proceedings was usefully set out by Ipp JA in Barwick v Council of the Law Society of New South Wales:[48]
The relevant time for determining the fitness of a practitioner to practise is the time of the determination by the disciplinary body seized with the question: cf A Solicitor vThe Law Society of New South Wales[2004] HCA 1; (2004) 204 ALR 8. The misconduct charged will have taken place before the decision is made; there will inevitably be a gap between the date of the misconduct and the date of the determination. It will not be unusual for the practitioner concerned to submit that circumstances have changed since the misconduct charged; arguments as to remorse, reform, character change and subsequent good deeds are not uncommon. The practitioner's conduct of the defence and the veracity and candour of his or her testimony will often be the best evidence as to whether these mitigating circumstances are to be accepted.
It is often self-evident that the tribunal or court determining fitness to practise might find that the practitioner has lied in the disciplinary proceedings before it. It is also often self-evident that such a finding, if made, might influence the tribunal or court in deciding what order should be made in regard to the practitioner's right to practise. When the practitioner knows that there is a risk of such a finding being made and used by the disciplinary body concerned in determining what final order to be made, and has adequate opportunity to deal with this prospect, there would be no procedural unfairness were the disciplinary body so to act on the finding. This would be the case even though the practitioner may not have been charged with specific misconduct relating to the conduct the subject of the finding. The act of charging the practitioner would be an unnecessary formality.
[48] Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32; [2004] Aust Torts Reports 81-730 [108]-[109] (Ipp JA; Tobias JA & Stein AJA agreeing).
Nevertheless, and this is my third observation, while the fitness of a practitioner (at the time of the hearing) will always be a matter for consideration by the Tribunal, the Tribunal must always be mindful that the proceedings have been brought in relation to particular allegations and that disciplinary sanction is to be imposed in response to the particular conduct revealed by that allegation. The fact that an aspect of the practitioner's competence may be called into question by the conduct does not convert the penalty hearing into a generalised and unbounded inquiry into the practitioner's 'competence', as if the findings of misconduct were merely the occasion for a general inquiry into any and all matters that may arise in the course of the penalty hearing.
The Board was no doubt correct to submit, as it did in this appeal, that 'Mr Hegde ought to have appreciated that his competency was necessarily a factor relevant to the assessment of penalty'.[49] Competency, however, covers a very wide range of potential issues and to say that competency necessarily is 'in issue' tells only half of the story. It remains a basic requirement of natural justice that a practitioner facing a penalty hearing must be afforded a reasonable opportunity to respond to the particular matters said to raise concerns as to his or her competency.
[49] Respondent's Outline of Submissions in Opposition to Appeal, [43].
Of course, each of these observations I have made involve matters of degree and I am not suggesting that there are 'bright-line' rules in this regard. Fairness is a practical matter and the concern of the law of natural justice is to avoid practical injustice.[50] Nor do I intend by these remarks to suggest that the Tribunal in the present case went about its task in anything other than a conscientious and diligent manner. Indeed the Primary Reasons as a whole reveal that the Tribunal went to great lengths to deal with the issues in a careful and considered way.
[50] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ).
Nevertheless, in my view, upon careful reflection, there are aspects of the Tribunal's conclusions in relation to Mr Hegde's competence that were unsupported by the evidence as a whole and which reveal error.
It is to those matters that I now turn.
Consideration of competency generally
Before returning to the three matters upon which the Tribunal concluded that Mr Hegde 'was not competent', some general observations in relation to the issue are appropriate.
First, as I have already noted, the only dispensing practice of Mr Hegde's that was the subject of the proceedings was his practice in relation to the dispensing of androgenic anabolic steroids during the period 1 January 2008 to 30 April 2009. There was no suggestion, in the allegations referred to the Tribunal, of any concerns in relation to his dispensing practice in relation to any other type of drug, or at any time after April 2009.[51]
[51] Primary Reasons [140].
There was therefore no evidence of any further breach of appropriate dispensing standards for a period of more than 10 years, which the Tribunal agreed 'supports a submission that [Mr Hegde's] competency should not now be in issue'.[52]
[52] Primary Reasons [255].
In those circumstances, one might reasonably have expected that a conclusion that Mr Hegde had, in fact, been incompetently dispensing medications for over 10 years (without apparent disquiet) and that he does not grasp fundamental aspects of the practice of pharmacy, would be a conclusion based upon clear and cogent evidence as to his actual dispensing.
As the Primary Reasons reveal, however, the Tribunal's conclusions in this regard were largely based upon Mr Hegde's answers to questions given at the hearing and, as I will now address, a particular 'reading' of those answers.
Competency issue 1 - Mr Hegde's answers to questions on his dispensing
The Tribunal's reasons in relation to Mr Hegde's understanding of his dispensing responsibilities are set out at [35] above.
As is apparent from those reasons, the Tribunal's conclusions as to Mr Hegde's competency in that regard were based entirely on answers given by Mr Hegde in re-examination, including very brief answers. In addition, in my view, the Tribunal read a great deal into what, in the circumstances, were relatively straightforward and predictable responses to the questions asked. Indeed, in some respects, the meaning attributed to the 'text' of the answers involved a degree of critical exposition worthy of a deconstructionist.
Ultimately, in the context of Mr Hegde's evidence as a whole, in my view the answers in re-examination relied upon by the Tribunal do not support the reading that the Tribunal gave to them.
First, it is necessary to bear in mind the context of the answers. The answers were in re-examination. It is clear from the transcript that Mr Hegde had just been subject to a sustained and probing cross-examination, which ranged over a variety of matters. It is evident from the form of the re-examination that it was intended to be a brief series of 'Dorothy Dixers', designed to elicit clear statements from Mr Hegde that the conduct for which he was being disciplined would not be repeated.
Take the first answer referred to by the Tribunal. Mr Hegde was asked what he would do if someone walked into the pharmacy with multiple repeats for anabolic steroids. Not surprisingly, in my view, given the context, his answer was that he would refuse to dispense the drug 'because it's not for a therapeutic need'.[53] The answer is clearly designed (as, in my view, was the question) to make clear, in no uncertain terms, that the conduct for which he was before the Tribunal would not be repeated.
[53] Primary Reasons [262].
I agree with the Tribunal that this was not a nuanced answer. And there is no doubt that Mr Hegde could have provided an answer that met all of the matters referred to be the Tribunal in its reasons.
Nevertheless, in my view, it strains a fair reading of that answer to conclude from it, as the Tribunal did, that Mr Hegde 'does not seem to be cognisant of a vital lodestar in his answer: Would the dispensing be safe for the patient?'[54]
[54] Primary Reasons [265].
Secondly, the Tribunal's conclusion in this regard was inconsistent with Mr Hegde's evidence as a whole. In that regard, Mr Hegde was cross-examined in detail as to as to considerations relevant to the dispensing of anabolic steroids. The cross-examination included the following exchanges:[55]
[55] Ts 83-84. See also ts 108-109.
[W]hat are the things that a responsible pharmacist needs to consider about prescription?---The validity of the prescription.
Yes?---The requirement of that prescription for that individual need.
What do you mean by "the requirement of the prescription for the individual need"?---Well, is it – is the drug safe for the patient?
Is the drug safe for the patient? Okay.
…
Just stay with the question. What are the things that a responsible pharmacist needs to consider when dispensing a prescription – or considering dispensing a prescription for anabolic androgenic steroids?---Is the patient – is the patient aware of the side effects of that – of that medication?
Yes?---So a CMI would always be given with it.
Yes?---Are they using it correctly? Are they using it at the doctor’s surgery or not at the doctor’s surgery? Is it safe? We’ve always gone through side effects – we always go through that other stuff.
Anything else?---Legality.
Anything else?---I’m not sure what the angle of the question is.
Is there anything else that you can think of that that a responsible pharmacist needs to consider when they’re presented with a prescription?---Dispensing history, any other code on – code on – code on – with morbidities.
…
Let’s just stay with the question, Mr Hegde. Does a responsible pharmacist have to consider whether there’s an indication?---Yes.
Okay. What are the indications for anabolic androgenic steroids?---They vary. For example, even stanazolol is used for angioedema that’s hereditary. It could have been muscle wasting in HRV. It could be muscular dystrophy. As an adjunct, when there has been severe weight – in weight loss or inability to maintain weight at certain levels. Obviously, reflecting back, it can be used as – for body building.
Is body building an indication?---No, it’s not an indication.
On the face of it, these exchanges demonstrate that Mr Hegde was able to identify, largely unprompted, a variety of considerations relevant to dispensing steroids: validity of the prescription, patient need, patient safety, awareness of side-effects, legality, co-morbidities and therapeutic indication. Those considerations include each of the considerations that the Tribunal found to be lacking from his answer in re-examination.
Indeed, the very matter in relation to which the Tribunal found that Mr Hegde was not cognisant of (based on his answer in re-examination) - 'Would the dispensing be safe for the patient?'- was expressed by him, almost word for word, in cross-examination – 'Is the drug safe for the patient?'
The Tribunal did not refer to the evidence referred to in [103] above in the Primary Reasons, either in the context of this issue or elsewhere. Given that the evidence was inconsistent with the interpretation the Tribunal placed on his answer in re-examination, and the conclusion that it reached in that regard, to have failed to have addressed that evidence was in my view a material error.
In any event, it would, in my view, be difficult to see how, if that evidence had been addressed, the Tribunal could have reached the conclusion that it did based on the answer in re-examination. As I have noted above, at [59] to [61], the apparent inconsistency between Mr Hegde's evidence in cross-examination and the Tribunal's construction of the answer in re-examination could not, in this case, be resolved by the effect of impressions formed by having seen and heard the witness.
Thirdly, while of lesser significance, the Tribunal's interpretation of Mr Hegde's answer in re-examination, in my view tends to have moved from the core matter raised by the proceedings - Mr Hegde's failure to be aware of the risks and hazards associated with dispensing anabolic androgenic steroids, particularly in the risks and quantities that he had done so - to a finding of a generalised deficiency in his knowledge (or awareness) in relation to pharmacy practice generally.
In this regard, while the Board clearly submitted, in closing, that Mr Hegde was incompetent, its submissions in that regard were nevertheless focussed on his dispensing of anabolic androgenic steroids. The Board's submissions, which were entirely in writing, made no reference to the re-examination of Mr Hegde.[56]
[56] Applicant's Closing Submissions in Respect of Penalty dated 7 February 2020.
Each of the matters I have referred to above apply equally to the second and third answers in re-examination the Tribunal referred to in this section of the Primary Reasons. Those answers do not, on their own, 'evidence a striking failure to consider patient safety'[57] or evince 'no real awareness of [his] professional responsibilities'.[58]
[57] Primary Reasons [269].
[58] Primary Reasons [272].
Again, for example, the Tribunal's 'model answer' to the third scenario put to Mr Hegde (Primary Reasons [273]), includes many, if not all of the matters, raised by Mr Hegde in the passages in cross-examination that I have referred to above.
Mr Hegde may well have been, as the Tribunal found, a poor witness and 'guarded and defensive' in his answers. In the context of his evidence as a whole, however, the Tribunal's assessment of his answers in re-examination did not provide a proper basis for the conclusion that 'he is not currently a competent pharmacist in terms of his dispensing'.[59]
Competency issue 2 - Mr Hegde's CMIs
[59] Primary Reasons [280].
The Tribunal's reasons in relation to Mr Hegde's CMIs are set out at [40] above. Critically, the Tribunal found that the CMIs were 'fundamentally deficient, even hazardous'[60] and concluded that the CMIs, together with Mr Hegde's oral evidence in relation to them, 'reveal incompetence'.[61]
[60] Primary Reasons [286].
[61] Primary Reasons [290].
Mr Hegde maintains that the Tribunal erred, in this context, by assessing Mr Hegde's competency at the time of the misconduct rather than at the time of the relevant hearing and in finding that the CMIs were 'fundamentally deficient, hazardous and incomplete'.[62]
[62] Appellant's Outline of Submissions [44]-[46].
As to the first matter, it is clearly established that fitness to practise for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the relevant misconduct. The same is true of the question of the appropriate penalty generally.[63]
[63] Khosa v Legal Profession Complaints Committee [195] (Murphy & Beech JJA); A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [21].
Mr Hegde contends that the findings in relation to the CMIs erroneously focussed on the competence of Mr Hegde at the time that the CMIs were prepared (which appears to have been in around 2003) and during the period when he used them (that is, prior to April 2009). Mr Hegde submits that there was no evidence that he used the CMIs after the Relevant Period.
There is, in my view, merit in this submission, inasmuch as the Tribunal said that it was not correct that to say that Mr Hegde 'no longer relied upon [the CMIs]'.[64] To the extent that this passage suggests that Mr Hegde still 'relied upon' the CMIs as part of his pharmacy practice, such a finding would clearly be wrong.
[64] Primary Reasons [285].
The Board submits, to the contrary, however, that the Tribunal's reference to 'reliance' can and should be taken to be a reference to the fact that Mr Hegde 'relied on' the CMIs at the penalty hearing as evidence of his awareness of patient safety. I accept that that construction of the Primary Reasons is reasonably open. The criticism, in this regard, therefore appears to be that Mr Hegde did not 'distance himself from the content of his CMIs', particularly in circumstances in which they were 'fundamentally deficient'. In essence, the Tribunal found that Mr Hegde was incompetent because he did not identify the manifest shortcomings of the CMIs.
So understood, in my view, the Tribunal's findings face a more fundamental problem.
In my view there was no proper basis, grounded in the evidence, to find that the CMIs were 'fundamentally deficient, even hazardous'.
First, there was no admission by Mr Hegde to that effect. The 'concession' relied upon by the Board, and reproduced in Primary Reasons [283], was an answer in which Mr Hegde accepted that information as to the adverse effects of the drugs in the CMIs should have been 'much more thorough' and 'should have had more stuff'.[65]
[65] Ts 120. There is also some reference from 120-121 that the CMI should have referred more thoroughly to the 'indications' for the drug, although in context, Mr Hegde appears to be making a point about the admitted lack of indication to which he had admitted and that the drug 'shouldn't have been produced'. In any event, this exchange was not identified by the Board or the Tribunal as an admission of 'fundamental deficiency'.
That is not, in my view, an admission that the CMIs were 'fundamentally deficient, even hazardous'. It is a very general statement, without reference to any particular deficiency in the CMIs or any particular adverse effect said to have been omitted from them. It is apparent from the transcript that by this point in the cross-examination Mr Hegde had become somewhat enervated and compliant. In my respectful view, the answer says more about the success of the cross-examiner in subduing the witness than it does about deficiencies in the CMIs.
This is apparent from the balance of the cross-examination, in which Mr Hegde was taken to the CMI for Stanozolol and specifically asked to identify 'missing' side effects. The exchange followed immediately after counsel's objection (referred to in Primary Reasons [284]):[66]
[66] Ts 122. There was also reference in the cross-examination to the CMIs for Methadrostenolone and Oxandolone (ts 123-124). That did not, however, add anything to the cross-examination in relation to Stanozolol to which Mr Hegde simply agreed with the proposition that 'the same things are missing'.
STANTON, MS: (indistinct)?---We haven’t dispensed this for 10 years. Like, we haven't - - -
I understand. Just – we will stick with the question. If you go to – you’re on the second page?---Yes, ma'am.
And you can see those bullet points that say "serious side effects, contact your doctor immediately"?---Mmm.
And then you’ve got other side effects. And can you identify any important, serious missing side effects?---Obviously for, like – like, liver – liver function.
Yes?---Well, obviously gynecomastia can happen, as well as, like, sterility in women, as – as well as infertility in men. Obviously sometimes with cancer and – and giving an anabolic is also not good. No. That’s – that’s a basic example.
Nothing else comes to mind?---Hepatic toxicity – toxicity, aggression, mood – mood swings, obviously potential for drug interactions with other medications that they may be on that we missed.
Can you think of any other organs that are damaged as a side effect of anabolic steroids?---Well, it’s an endocrine system, so anything can be, even – it – it depends on – on the actual drug, the actual patient and how it’s going to get metabolised. So if it’s metabolised by the liver, hepatic toxicity is – is the greatest – is the greatest cause. So I - - -
Do you know anything about cardiovascular effects?---Yes. There’s an increased risk of blood pressure increase, risk of cardiac – myocardial infarction. That’s assumed from previously.
Anything else relating to the cardiovascular system?---Well, it’s – it’s – it’s the increased burden on the heart.
How does that arise?---Increased burden on the heart is due to the – to the simulation of the heart to – to work to pump harder.
On the face of the transcript, this exchange does appear to suggest that there were a number of significant 'missing' side-effects in the CMI for Stanozolol. That is, until one looks at the CMI itself (see Schedule).
The first, and most striking thing to note, is that the first, and most significant, 'serious missing side effect' referred to by Mr Hegde was 'liver function' (i.e. hepatic toxicity). Mr Hegde refers to liver function or hepatic toxicity three times in the exchange. If liver problems had not been referred to in the CMI, that would clearly have been a significant omission or deficiency.
The risk of liver damage or hepatic toxicity, however, was not missing from the CMI. The CMI, immediately under the heading 'What side effects can Stanozolol cause?', states:
In rare cases, serious and even fatal cases of liver problems have been reported during treatment with Stanozolol. Contact your doctor immediately if you experience abdominal pain, light colored stools, dark colored urine, unusual fatigue, nausea or vomiting, or yellowing of the skin or eyes. These may be early signs of liver problems.
The CMI therefore included a significant warning as to the potential for serious liver problems, with detail as to the symptoms which such problems may cause and for which the consumer should be alert.
Mr Hegde could be forgiven for not having pointed this out in the cross-examination. That is because, as it apparent from the exchange reproduced at [123] above, when asked the question about serious missing side effects Mr Hegde had been directed to the second page of the CMI and the bullet points on that page. The reference to 'serious even fatal cases of liver problems' appears on the first page of the CMI.
Similarly, in relation to the other matters identified in the cross-examination, the CMI as a whole does not bear out fundamental deficiencies. For example:
(a)in the cross-examination Mr Hegde referred to 'gynecomastia', an enlargement or swelling of breast tissue in males. The CMI expressly refers to 'enlarged breasts' as a serious side effect, which (I note in passing) would in all likelihood have more meaning to a consumer than a reference to 'gynecomastia';
(b)in the cross-examination Mr Hegde referred to 'infertility in men'. The CMI states that 'Stanozolol may decrease fertility in men'. There are also warnings in the CMI in relation to the risks of the drug in pregnancy (including birth defects) and breastfeeding';
(c)in the cross examination Mr Hegde refers to the risks associated with the drug's use in the presence of cancer. The first page of the CMI warns against taking the drug, without medical advice in cases of prostate cancer or breast cancer (amongst other conditions);
(d)in the cross-examination Mr Hegde referred to aggression and mood swings. The CMI refers to, inter alia, confusion, depression, difficulty sleeping and nervousness or unusual excitement as side effects;
(e)in the cross-examination Mr Hegde referred to the 'potential for drug interactions with other medications'. The CMI has a section headed 'What other drugs will affect Stanozolol?', and information in that regard; and
(f)in the cross-examination Mr Hegde referred to the cardiovascular system and increased burden on the heart. While that reference does not identify any particular symptom, the CMI itself refers to 'slowed heartbeat' and, on the first page, identifies 'heart or blood vessel disease', 'heart attack', and 'high cholesterol' as matters in relation to which specific medical advice should be sought.
The evidence of Mr Hegde could therefore, in my view, in no way support a conclusion that the CMIs were fundamentally deficient or hazardous.
Secondly, the only other matter referred by the Tribunal as to the deficiencies in the CMIs was that they 'failed to address the reality of dispensing at the Pharmacy, where it was routine to dispense multiple anabolic steroids together to one patient'.[67]
[67] Primary Reasons [286].
There was, however, no evidence as to whether, or even how, Consumer Medical Information sheets for a particular drug should or could address that 'reality', beyond the information that was contained in the CMIs themselves. In this regard it is important not to confuse the fact that multiple anabolic steroids were dispensed in combination (which was clearly serious misconduct for which Mr Hegde must face disciplinary consequences) and what information should properly be contained in a CMI for a particular drug. They are different issues.
In that regard, beyond the cross-examination of Mr Hegde to which I have referred there was no evidence as to what, as a matter of good pharmacy practice, should be contained in a CMI. Nor was it put to Mr Hegde in cross-examination that the CMI's were deficient in the way described by the Tribunal in the passage referred to at [131] above.
Finally, and significantly, there was no expert evidence in relation to the adequacy or otherwise of the CMIs. In that regard the Board did obtain expert evidence generally, which was adduced in the penalty hearing in the form of a number of reports prepared by Ms Liza Seubert. Ms Seubert is the expert pharmacist referred to in the Primary Reasons at [287] and provided reports dated 9 September 2016, 17 October 2016 and 11 November 2016.[68] She also provided a witness statement dated 29 November 2018.[69]
[68] Exhibit D (Applicants Bundle of Amended Documents), Tab 20, 22 and 24 respectively.
[69] Exhibit H.
Ms Seubert, however, was not asked for, nor did she provide, any expert opinion as to the adequacy of the CMIs.[70]
[70] See Appeal ts 115.
At the hearing of the appeal the Board submitted that the CMIs were 'put forward only in the penalty proceedings' and that Ms Seubert did not give evidence in the penalty proceedings.[71] That is not quite correct. As the evidence before the Tribunal reveals, all of the CMIs were provided to the Board by Mr Hegde under cover of a letter dated 18 September 2015.[72] The Board had the CMIs from that date, which was prior to it having obtained any expert opinion from Ms Seubert. The CMIs were also included in the Board's Bundle of Documents tendered at the penalty hearing.
[71] See Appeal ts 115.
[72] Exhibit D (Applicants Bundle of Amended Documents), Tab 14, pages 394-646 (see especially pages 622-634).
It is not clear from the evidence whether the Board in fact provided copies of the CMIs to Ms Seubert when it sought her opinion. She was, however, certainly made aware of them. Mr Hegde's letter, and the CMIs, are expressly referred to in Ms Seubert's first report to the Board dated 9 September 2016.[73]
[73] Exhibit D (Applicants Bundle of Amended Documents), Tab 20 page 655.
It was therefore clearly open to the Board to obtain evidence in relation to the adequacy of the CMIs from at least 18 September 2015.
In those circumstances, if a submission was to be made that the CMIs were fundamentally deficient and 'reveal incompetence', it was open to the Board to have obtained evidence in support of such a case long before the cross-examination of Mr Hegde. In any event, as I have found, the cross-examination of Mr Hegde does not support the Tribunal's conclusion that the CMIs were 'fundamentally deficient, even hazardous' or that they reveal incompetence.
In my view, the Tribunal erred in so finding.
Competency Issue 3 - Mr Hegde's level of insight into the risks of diversion
The Tribunal's reasons in relation to Mr Hegde's level of insight into the risks of diversion are set out at [42] above.
Mr Hegde submits that the Tribunal erred by failing to evaluate all of the evidence in relation to his understanding of the risks of diversion of anabolic steroids. He refers in particular to the following answers, which were not referred to by the Tribunal, and which followed shortly after the exchange reproduced in the Primary Reasons at [291]:[74]
So sitting here now, can you think of a – if I said to you that it is a notorious fact that anabolic steroids have a street value, would you say, "Yes. I know that’s right," or do you say, "I don’t know"?---Look, I know – I know that now. I don’t think I knew this – this other side of things during that period in question. Like, I don’t think I was that cognisant of prior as to what’s legal and what’s not legal and – and how much something sells on the street value.
…
… When you were supervising your staff, did you ever talk to them about being careful because these drugs were desirable on the street, that there was an illicit trade in these drugs?---I think I answered your question. Like – like, now, I – I would have. Back then, I – I – except for when the Health Department audit and there was a (indistinct) of course I spoke to them. And we – you know, I would have spoke to my pharmacists back then – or my managers back then. But you’re – you’re, like – like, now, 100 per cent I do. Back then, I – I definitely spoke to the Health Department (indistinct) but I didn’t know about this illegal trade in – in anabolic steroids.
[74] Ts 111-112.
The failure to specifically refer to this evidence does not necessarily reveal error. The Tribunal's duty to deal with fact or evidence is not absolute.[75] I also accept that, in relation to issues relating to 'insight', as with issues of 'candour', the impressions that come from a primary decision-maker being able to see and hear the witnesses may take on a particular significance.
[75] Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2002] VSCA 189; (2002) 6 VR 1 [157] (Charles, Buchanan & Chernov JJA).
As I have said, however, given the reconstitution of the Tribunal, it was in no better position to rely upon such 'impressions' than I am. And in that context, I have some real difficulty being able to conclude that the exchange referred to in the Primary Reasons at [291] itself manifests incompetence or a lack of insight into the risks of diversion.
Most of that exchange appears to relate to Mr Hegde's apparent difficulty with what the then Senior Member was referring to as the 'value' of the drugs on the black market. Mr Hegde evidently misunderstood the question to relate to monetary value, in relation to which he professed no knowledge. I must confess that, at least based on the transcript, I would also have understood the question to be referring to monetary value.
When the exchange returned to the desirability of anabolic steroids for non-therapeutic purposes Mr Hegde referred to 'bodybuilding'. The balance of the exchange is a little difficult to understand. The reference to 'the pictures' is evidently a reference to a number of Facebook photographs of customers of the Pharmacy, apparently adduced by the Board to demonstrate that they had physiques consistent with the use of anabolic steroids for bodybuilding.[76]
[76] Exhibit D (Applicants Bundle of Amended Documents), Tab 100-106.
Nevertheless, whatever the last part of the exchange meant, in the context of the evidence as a whole, in my view it could hardly be concluded from the exchange referred to by the Tribunal that Mr Hegde was not at that time aware that anabolic steroids were improperly used for non-therapeutic purposes such as bodybuilding. That was the whole point of the penalty hearing.
In the end, therefore, the finding as to Mr Hegde's 'insight' as to the risk of diversion must come down to the 'seriousness' with which Mr Hegde appeared to treat those matters in cross-examination and, as the Tribunal put it, his 'inability to clearly articulate that he understood the [relevant] risks'.[77] As to the latter, of course, the issue for determination was Mr Hegde's fitness to practise as a pharmacist, not his eloquence as a witness.
[77] Primary Reasons [292].
Again, I accept that matters such as insight and remorse are difficult matters to assess by a 'clinical examination of a transcript'.[78] Unfortunately, however, that is all that the Tribunal in the present case had to go on and, in my view, it cannot be criticised for having discharged its task on the material that it had. In all of the circumstances, while I may have drawn a different conclusion from the transcript as to Mr Hegde's level of insight, I cannot conclude that the Tribunal made a material error in reaching the conclusion that Mr Hegde had not demonstrated sufficient insight into his misconduct.
[78] Brett v Rees [2009] WASCA 159 [69] (Owen JA, Martin CJ & Miller JA agreeing); Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208 [93]-[95] (Quinlan CJ, Murphy & Pritchard JJA).
Nevertheless, while Mr Hegde's lack of insight (in the sense I have described it in [148] above) was no doubt of significant relevance to the assessment of Mr Hegde's fitness to practise generally, it could not, in my view, rise to the level of 'incompetence' in the sense that the Tribunal used it.[79]
[79] Primary Reasons [295].
In any event, as I read the Tribunal's ultimate conclusion in relation to competency, it was the three competency issues, in combination, that caused it to be satisfied that Mr Hegde was incompetent.
Conclusion in relation to ground 1
For the reasons set out above, in my view the Tribunal materially erred in concluding that Mr Hegde was not a competent pharmacist and that he was 'permanently or indefinitely' unfit for the practice of pharmacy.
In particular, the Tribunal's conclusions in relation to both the first and second competency issues were in my view not supported by the evidence as a whole. The Tribunal erred in reaching those conclusions. Nor could the Tribunal's interpretation of Mr Hegde's answers in cross-examination about the risks of diversion alone be sufficient to sustain a finding of incompetence.
The Tribunal's errors in this regard were, in my view, material errors of fact that vitiated the exercise of the Tribunal's discretion in relation to the penalty it imposed on Mr Hegde. In that regard, to establish 'vitiation' it is not necessary to establish that the decision would have been different. What must be established is that the error is sufficiently material or operative to warrant the large step of setting aside the Tribunal's decision.[80]
[80] SH v Chief Executive Officer of Department of Communities [69] (Quinlan CJ, Mitchell & Pritchard JJA); Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [130]-[131] (Buss P, Murphy & Mitchell JJA).
In the present, as is apparent from the those parts of the Primary Reasons referred to in [29] to [30] above, the Tribunal's conclusions in relation to the competency issues were expressly not 'peripheral issues' and went to the core of the practice of pharmacy. It must be concluded that the errors that I have identified, and in particular the Tribunal's conclusions in relation to the first and second competency issues, materially affected the overall result and, in particular, the Tribunal's conclusion that cancellation of Mr Hegde's registration (as opposed to a period of suspension) was an appropriate remedy.
Expressed in terms of the principles in House v The King,[81] the errors in the present case were express errors made in the exercise of the Tribunal's discretion as to penalty, in particular by proceeding upon a wrong (or mistaken) view of the facts.
[81] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505.
For these reasons ground 1 is established. I would grant leave to appeal and allow the appeal on that ground. The penalty orders made by the Tribunal must be set aside and the discretion exercised afresh.
I will deal with the appropriate consequential orders at the conclusion of these reasons.
Ground 2 – House v The King express and implied error
Ground 2 pleads both limbs of House v The King error: namely, express error (see particulars (iii) and (iv)) and implied error, on the basis that the decision to cancel Mr Hegde's registration was 'unreasonable or plainly unjust'.
The express error alleged in particular (iii) of Ground 2 is the same error alleged in ground 1, namely that the Tribunal erred in fact in finding that Mr Hegde was 'permanently or indefinitely' unfit for the practice of pharmacy. Insofar as I have upheld the challenge to that finding in ground 1, Ground 2 has also been made out.
Express error having been established, the alternative claim of implied error falls away. Indeed, it would be an entirely artificial exercise to determine the claim of implied error given that, as I have found, the Tribunal's finding that Mr Hegde was incompetent and that he was permanently or indefinitely unfit to practice were made in error.
The question of implied error would only arise in the event that those findings were not set aside. In those circumstances it would have been very difficult to argue that the cancellation of Mr Hegde's registration and disqualification for three years was 'unreasonable or plainly unjust'. As Pritchard JA and I said in Singh v Medical Board of Australia, in the context of medical practitioners under the National Law:[82]
it may be said that where a medical practitioner is 'permanently or indefinitely unfit to practise, [cancellation of registration] rather than suspension will (at least ordinarily) be the appropriate response'.
[82] Singh v Medical Board of Australia [2019] WASCA 51 [37] (Quinlan CJ & Pritchard JA).
This reasoning is equally applicable to pharmacists under the National Law. The reasoning follows from the protective nature of the Tribunal's disciplinary jurisdiction. Where it is concluded that a practitioner is 'permanently or indefinitely unfit to practise' (emphasis added) the public will not be sufficiently protected by a suspension only, for the reason that the Tribunal cannot be satisfied that at the end of the period of suspension the practitioner will no longer be unfit to practise.[83]
[83] Khosa v Legal Profession Complaints Committee [191] (Murphy & Beech JJA).
In the absence of a finding of incompetence or permanent or indefinite unfitness to practise, as the Tribunal recognised,[84] different considerations will arise and it may be appropriate to impose a period of suspension rather than cancellation, bearing in mind that even in the absence of such a finding, depending upon all of the circumstances of the particular case, cancellation may well be an appropriate response. Again, as Pritchard JA and I said in Singh v Medical Board of Australia:[85]
[P]ermanent or indefinite unfitness to practice (at least ordinarily) will be a sufficient basis for cancelling the practitioners' registration. It must be recognised, however, that permanent or indefinite unfitness to practice, is not a necessary condition for cancellation. As the Court in Chen v Healthcare Complaints Commission recognised, the National Law does not elevate any consideration relevant to the power to cancel registration to the status of a precondition to that power.
[84] Primary Reasons [341].
[85] Singh v Medical Board of Australia [2019] WASCA 51 [38] (Quinlan CJ & Pritchard JA).
As I have said, however, given that as I have concluded that the Tribunal erred in its conclusion that Mr Hegde was permanently or indefinitely unfit to practise, the exercise of the discretion under s 196 of the National Law falls to be re-exercised in any event. The question of implied error does not arise.
Ground 3 – Credibility findings
Ground 3 challenges the finding at Primary Reasons [200],[86] that Mr Hegde was 'not a forthcoming nor candid witness'. Mr Hegde makes two submissions in that regard: first, that the Tribunal did not give adequate reasons for that finding[87] and, secondly, that it 'failed to use, or palpably misused, its advantages as the trial judges'.[88]
[86] See [57] above.
[87] Appellant's Outline of Submissions [86]-[90].
[88] Appellant's Outline of Submissions [92].
In relation to this ground I should note, at the outset, that the Tribunal's findings as to Mr Hegde's credibility and reliability as a witness were made in contradistinction to its findings in relation to Dr Durston, whose evidence the Tribunal found to be candid and honest, in what the Tribunal found to be difficult circumstances for Dr Durston.[89]
[89] Primary Reasons [198].
In that regard, it was necessary, in light of the way the case was run by the parties, for the Tribunal to make findings concerning highly contested matters of fact in relation to which Dr Durston and Mr Hegde gave competing evidence, including in relation to conversations between them.
In this context, I feel bound to express considerable sympathy for the Tribunal. In my view, it could not be said (as Mr Hegde contends) that the Tribunal 'failed to use, or palpably misused, its advantages as the trial judges' because, in truth, it had no such advantages. It did not see and hear the witnesses and could not avail itself of the advantage of having done so. Moreover, it is clear that the parties made their closing submissions (in writing) following the reconstitution of the Tribunal[90] and neither party sought a further oral hearing before the Tribunal.
[90] The fact that the Tribunal had been reconstituted was expressly referred to in Dr Hegde's Closing Submissions dated 20 March 2020.
In those circumstances, the Tribunal, which was obliged to reach a decision in the exercise of its jurisdiction under the SAT Act, made findings in relation to the contested evidence as best as it could on the material that was available to it. It cannot be criticised for having done so.
In relation to the adequacy of the Tribunal's reasons, in my view, within the limits that it faced, the reasons more than adequately disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.[91]
[91] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112] (Quinlan CJ, Murphy & Beech JJA).
Indeed, insofar as I have reached the conclusion (in relation to ground 1) that the Tribunal was in error and that certain findings were not supported by the evidence referred to by the Tribunal, the clarity of the Tribunal's reasons for having reached those findings significantly assisted in my carrying out this Court's appellate function. The fact that I have concluded that certain of those findings were in error, is in no way a reflection on adequacy of the Tribunal's reasons for those findings.
In relation to the finding that Mr Hegde was not a 'forthcoming nor a candid witness', for example, the Tribunal continued that he was 'guarded and defensive'. That is how I would understand the Tribunal's finding that Mr Hegde was not forthcoming or candid. In that context, in my view, the Primary Reasons admirably set out, by reference to the written record, why the Tribunal made that finding:[92]
201As urged by the respondent, we have approached the transcript evidence with some caution because the majority of the Tribunal panel did not hear the evidence directly and could not observe the demeanour of the witnesses.
202However, even taking a cautious approach, we each consider that the respondent's evidence was guarded and defensive (as set out at [200] above) and took no real ownership of his professional misconduct and instead sought to shift the focus onto the prescribing doctors.
203Rather than directly confronting his failings, the respondent's evidence, time and again, was that his dispensing practice relied on the conversations and assurances that he says were given to him by the prescribing doctors, to justify or to at least explain, his conduct.
204This is evident from both his witness statement (Exhibit B, in particular paras 43, 44, 55-62, 70-71 and 85-88) and his oral evidence (ts 88, 98-99, 101-102, 108, 20 September 2019). The respondent's evidence was also that he was assured that his dispensing practice was appropriate on account of a number of audits undertaken by the Department of Health.
205While, at times, he accepted his dispensing practice had shortcomings and took some ownership of those (ts 77, 79-81, 20 September 2019), assessing his evidence in an overall sense, there is a striking failure to accept responsibility for his conduct. Moreover, when he did accept his own shortcomings, his answers often downplayed his own misconduct. For example, he gave answers like I was wrong in believing Dr Durston': ts 100, 20 September 2019.
[92] Primary Reasons [201]-[205].
I would not uphold ground 3.
Before leaving ground 3, however, I would observe that, in light of the conclusions I have reached in relation to Tribunal's findings as to incompetence and permanent or indefinite unfitness, it would now be difficult to 'disentangle' those aspects of the Tribunal's decision that I have found to be affected by error and other findings which, generally, reflect poorly on Mr Hegde's candour, remorse or insight.
That is, while I have found that the adverse findings made by the Tribunal in relation to Mr Hegde's answers in re-examination and in relation to the CMIs (and the conclusions based on those findings) were in error, there are aspects of the Tribunal's findings as to Mr Hegde's preparedness to accept full responsibility for his misconduct that are separate from his 'competency' and which have not been the subject of appeal. In the circumstances, however, it is not possible for me to determine to what extent, if any, those findings that I have found to be in error contributed to those other findings.
Put simply, it is not possible for me to simply 'excise' the erroneous findings and reconstruct what would otherwise have been the factual findings of the Tribunal for the purposes of re-exercising the discretion in relation to penalty.
This leads me to the issue as to the appropriate orders in the appeal.
Conclusions and orders
In light of the express errors made by the Tribunal in the exercise of its discretion as to the penalty to be imposed on Mr Hegde, the appeal must be allowed and the discretion re-exercised.
The issue arises as to whether I should re-exercise the discretion or whether the matter should be sent back to the Tribunal for determination according to law.
At the hearing of the appeal both parties submitted that the Court's powers, in s 105(9) of the SAT Act, were broad enough for me to make any order that the Tribunal could have made in the proceeding and to, in effect, re-exercise the discretion under s 196 of the National Law. No doubt, as a matter of the construction of the SAT Act, that is correct.
The real question, however, is whether I should exercise that power and what, having regard to the provisions of both the SAT Act and the National Law, orders are the appropriate orders in this case.
Mr Hegde submitted that I should re-exercise the discretion and, in particular, that I should suspend Mr Hegde's registration for a period of time, perhaps also with a condition that he undertake the successful completion of a program of education approved by the Board.[93]
[93] Appellant's Outline of submissions [3]; Appeal ts 89.
At the hearing of the appeal, the Board, while canvassing a variety of possible options, ultimately arrived at the position that, in the event that I concluded that the Tribunal's discretion had miscarried, that it would be appropriate to send the matter to the Tribunal to be heard and determined according to law.[94]
[94] Appeal ts 129.
The scope of the Court's powers under s 105(9) of the SAT Act were recently considered by the Court of Appeal in Panegyres v Medical Board of Australia.[95] In that case Buss P and Murphy JA, referring to the High Court's decision in Osland v Secretary, Department of Justice (No 2)[96] said: [97]
Ordinarily, the court's power under s 105(9)(b) of the SAT Act would only be exercised where only one conclusion was open on the correct application of the law to the facts found by the Tribunal. Thus, where the decision committed to the original decision-maker is essentially a 'factual, evaluative and ministerial judgment', the ordinary course would be to remit the matter to the body established for the purpose of making that decision.
However, the power under s 105(9)(b) of the SAT Act is also wide enough, in appropriate circumstances, to determine any factual issue remaining to be determined in consequence of dealing with the error of law established in the appeal, where that issue is conveniently capable of determination upon uncontested evidence or primary facts found by the Tribunal. (Footnotes omitted)
[95] Panegyres v Medical Board of Australia [2020] WASCA 58 (Panegyres v Medical Board of Australia).
[96] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320.
[97] Panegyres v Medical Board of Australia [85]-[86] (Buss P & Murphy JA).
To similar effect, in Panegyres v Medical Board of Australia, Vaughan JA said:[98]
Often, where reasons of the Tribunal are found to be inadequate, it will be appropriate to remit the matter for redetermination. That is all the more so given the specialist expertise of the Tribunal and the general undesirability of this court usurping the Tribunal's functions and responsibilities. Sometimes, however, the interests of justice require that this court exercise the power conferred by s 105(9)(b). It has been said, for example, that it will ordinarily be appropriate for this court to determine the matter for itself where the court concludes that, on the evidence before the Tribunal, only one conclusion was reasonably open.
[98] Panegyres v Medical Board of Australia [346] (Vaughan JA).
Panegyres v Medical Board of Australia itself was one of those cases in which it was appropriate for the Court, on appeal to exercise the power to make final orders. In that case, however, the principal residual issue concerned the drawing of inferences from uncontested primary facts by reference to (relatively) familiar statutory criteria and the absence of any 'ministerial' aspect to the evaluative task.[99]
[99] Panegyres v Medical Board of Australia [88] (Buss P & Murphy JA).
The same cannot be said of the present case. Having set aside significant factual findings by the Tribunal, which factual findings may well have affected other factual findings made by the Tribunal in relation to matters relevant to the evaluative judgment required in making orders under s 196 of the National Law, it cannot be said that there are no uncontested primary facts from which I could exercise that discretion.
On the contrary, it would be necessary for me to determine a number of contested facts (including, but not limited to, Mr Hegde's current fitness to practise having regard to the seriousness of the misconduct, his level of insight and any need for remedial action to ensure the protection of the public). To embark on that task, with the potential for further evidence, would in my view usurp the important statutory functions of the Tribunal.
Notwithstanding that this was an appeal to which s 103(13) applies, it remains the case that it is the Tribunal that is charged with the fact finding in cases such as this. Moreover, in exercising the evaluative judgment necessary to determine the appropriate orders under s 196 of the National Law, it is significant that the legislature has expressly entrusted that function to a Tribunal whose composition is required to have specialist expertise in relation to the profession the subject of the proceedings. This provides, in my view, a powerful consideration against my embarking upon the re-exercise of the discretion myself.
In saying this, I acknowledge the long history of these proceedings, and the even longer period of time since the misconduct the subject of the proceedings. Nevertheless, in this case, considerations of efficiency must give way to the important matters of principle that I have identified.
For these reasons, the matter should be sent back to the Tribunal.
There should be orders granting leave to appeal and allowing the appeal. My preliminary view is that it is appropriate to set aside each of the orders made under s 196(2) of the National Law. This would include not only the orders cancelling Mr Hegde's registration as a pharmacist and the order disqualifying him from applying to re‑register, but also the order that Mr Hegde be reprimanded. While the reprimand was uncontroversial, in my view it is appropriate that the power in s 196(2) of the National Law be re-exercised in its entirety.
The matter should otherwise be sent back to the Tribunal to be heard and determined according to law, by the Tribunal differently constituted.
I will hear the parties as to the final form of orders, including costs.
Schedule
| McKenzies Compounding Chemist |
STANOZOLOL 50MG TROCHE
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STANOZOLOL
What is Stanozolol?
Stanozolol is a man-made steroid, similar to the naturally occurring steroid testosterone.
Stanozolol is used in the treatment of hereditary angioedema, which causes episodes of swelling of the face, extremities, genitals, bowel wall and throat. Stanozolol may decrease the frequency and severity of these attacks.
Stanozolol may also be used for purposes other than those listed here.
Special Considerations before taking Stanozolol:
Do not take Stanozolol without first talking to your doctor if you have
*Prostate cancer
*Breast cancer or
*A high level of calcium in the blood (hypercalcemia)
Before taking Stanozolol, talk to your doctor if you
*Have heart or blood vessel disease
*Have had a heart attack
*Have a high level of cholesterol in the blood
*Have bleeding or blood clotting problems
*Have diabetes
*Take an oral anticoagulant (blood thinner)
*Have liver problems or
*Have kidney problems
You may not be able to take Stanozolol, or you may require a dosage adjustment or special monitoring during treatment.
Stanozolol is known to cause birth defects in an unborn baby. Do not take this medication if you are pregnant or could become pregnant during treatment. Do not take this medication if you are breastfeeding without first talking to your doctor.
How should Stanozolol be taken?
Take Stanozolol exactly as directed by your doctor. If you do not understand these instructions, ask your doctor or pharmacist to explain them to you.
It is important to take Stanozolol regularly to get the most benefit.
Your doctor may want you to have blood tests or other medical evaluations during treatment with Stanozolol to monitor progress and side effects.
Store Oxandrolone at room temperature away from moisture, heat and direct light.
What side effects can Stanozolol cause?
In rare cases, serious and even fatal cases of liver problems have been reported during treatment with
| McKenzies Compounding Chemist |
STANOZOLOL 50MG TROCHE
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Stanozolol. Contact your doctor immediately if you experience abdominal pain, light colored stools, dark colored urine, unusual fatigue, nausea or vomiting, or yellowing of the skin or eyes. These may be early signs of liver problems.
If you experience any of the following serious side effects, contact your doctor immediately:
*Swelling of the arms, hands, feet, ankles or lower legs
*new or worsening acne
*deepening of voice, increase in facial hair, baldness, and changes in genital structures in women
*abnormal menstrual periods
*enlarged penis or erections that come too often or do not go away
*pain, swelling, or decreased size of testes
*enlarged breasts
*frequent, difficult, or painful urination
*bone pain
*slowed heartbeat
*confusion
*extreme thirst
*muscle twitches or weakness
*tingling in arms or legs
*weakness of heaviness in legs
*changes in skin colour
*depression
Other side effects that may also occur include:
*new or worsening acne
*difficulty sleeping
*headaches
*changes in sex drive or ability
*nervousness or unusual excitement
*constipation
Stanozolol may decrease fertility in men. Talk to your doctor if your partner plans to become pregnant while you are taking Stanozolol.
Stanozolol may cause other side effects not listed here. Contact your doctor if you have any unusual problems while taking this medication.
What other drugs will affect Stanozolol?
Tell your doctor or pharmacist if you are on any other prescription or non prescription medications. Especially the following medications
*Anticoagulants
*Oral medication for diabetes
*Insulin
*Oral steroids and steroid creams
You may require a dosage adjustment or special monitoring if you are taking any of the medicines listed above.
| McKenzies Compounding Chemist |
STANOZOLOL 50MG TROCHE
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Drugs other than those listed here may also interact with Stanozolol. Talk to your doctor or pharmacist before taking any prescription or over the counter medicines, including vitamins, minerals and herbal products.
Incase of emergency/overdose
Immediately call your doctor or pharmacist or the Australian Poisons Information Centre (telephone 13 11 26) or go to Accident and Emergency at your nearest hospital, if you think you or anyone else may have taken too much Stanozolol. Do this even if there are no signs of discomfort or poisoning. You may need urgent medical attention.
Symptoms of overdose may include:
*Swelling of the arms, hands, feet, ankles, or lower legs
Other important information
Stanozolol has been specially compounded for you from your doctor's prescription. Never share your medicines with others and use this medication only for the indication prescribed. Keep this and all other medications out of the reach of children.
Every effort has been made to ensure that the information provided in this information sheet is accurate, up to date and complete but no guarantee is made to that effect. Drug information contained herein may be time sensitive. This drug information sheet does not endorse drugs, diagnose patients or recommend therapy. It is designed as a supplement to and not a substitute for, the expertise, skill, knowledge and judgment of healthcare professionals. The information contained herein is not intended to cover all possible uses, directions, precautions, warnings, drug interactions, allergic reactions or adverse effects. If you have questions about the drugs you are taking, check with your doctor or pharmacist.
Printed 5/11/2008 TXR#
PAL name STANOZOLOL
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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