Ng v NSW Health Care Complaints Commission - [2010] NSWSC 1220

No judgment structure available for this case.

CITATION: Ng v NSW Health Care Complaints Commission [2010] NSWSC 1220

HEARING DATE(S): 18 and 19 August 2010

JUDGMENT DATE :
22 October 2010

JURISDICTION: Common Law

JUDGMENT OF: Adams J

DECISION: Appeal allowed, matter remitted for hearing on question of consequential orders.

CATCHWORDS: PHARMACIST – Deregistration – Continuing unfitness – Whether remorseful – Significance of finding of dishonesty – Requirements of procedural fairness – Whether breach of rule in Brown v Dunn - Error of law – Mistake of fact – Whether Supreme Court should hear and determine consequential orders when quashed – Remit to Tribunal for determination.

LEGISLATION CITED: Health Practitioner Regulation National Law (NSW) Act 2009
Medical Practice Act 1992 s 90
Pharmacy Act 1968
Pharmacy Practice Act 2006 ss 49, 66, 92 & 93
Poisons Act 1966
Poisons and Therapeutic Goods Act 1996
Poisons and Therapeutic Goods Regulation 2002
Supreme Court Act 1970 s 69

CATEGORY: Principal judgment

CASES CITED: Bannister v Walton (1993) 30 NSWLR 699
HCCC v Schmich [2009] NSWNMT 19
House v The King [1936] HCA 40; (1936) 55 CLR 499
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Prothonotary of the Supreme Court v P [2003] NSWCA 320

PARTIES: Peter Wing Keung Ng (P)
NSW Health Care Complaints Commission (D1)
Pharmacy Tribunal of NSW (D2)
Pharmacy Board of NSW (D3)

FILE NUMBER(S): SC 2010/111230

COUNSEL: J Simpkins SC and I Griscti (P)
P Ginters (D1)
Submitting appearances (D2&3)

SOLICITORS: Gadens Solicitors (P)
K Mobbs (D1)
M St Hill (D2&3)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY, 22 OCTOBER 2010

2010/111230 PETER WING KEUNG NG v NSW HEALTH CARE COMPLAINTS COMMISSION & ORS

JUDGMENT
Introduction

1 HIS HONOUR: On 29 April 2010 Mr Ng, a registered pharmacist, was found by the Pharmacy Tribunal of New South Wales (the Tribunal) to be guilty of professional misconduct and of having been convicted of offences in New South Wales, the circumstances of which rendered him unfit in the public interest to be registered as a pharmacist. Consequently, the Tribunal cancelled Mr Ng’s registration and ordered that he was not to be re-registered and that an application by him for review of the cancellation could not be made until after the expiration of two years. Other ancillary orders were made which are presently irrelevant.

2 On 28 May 2010 Mr Ng by summons appealed pursuant to s 92 of the Pharmacy Practice Act 2006, which confers jurisdiction on this Court to determine an appeal by a pharmacist in Mr Ng’s position from a decision of the Tribunal with respect to a point of law or the exercise by the Tribunal of its disciplinary powers. Section 93 provides that the appeal may be dismissed or such other order made as the Court thinks proper having regard to the merits of the case and the public welfare, and in so doing may exercise any one or more of the powers of the Tribunal.

The complaints

3 The Tribunal considered and determined three complaints referred by the Health Care Complaints Commission (the HCCC). The first and second complaints were respectively that Mr Ng was guilty of unsatisfactory professional conduct and professional misconduct, both complaints having the same particulars. The third complaint was that Mr Ng had been convicted of offences the circumstances of which rendered him unfit in the public interest to practice pharmacy. The details of the complaints are set out below.

4 The allegations in complaints 1 and 2 were that Mr Ng –

(a) Engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of pharmacy was significantly below the standard reasonably expected of a pharmacist of an equivalent level of training or experience, and/or

5 The first particular was that between 6 September 2003 and 12 January 2005 at his pharmacy, Mr Ng failed to make six monthly inventories of drugs of addiction for a number of drugs dispensed in varying measures, as required by clause 117 of the Poisons and Therapeutic Goods Regulation 2002 (the Regulation). Although five of the 19 drugs of addiction particularised were not recorded in the inventory during the relevant period, 15 other drugs referred to were recorded on one of the required occasions. The Tribunal concluded that Mr Ng’s failure to comply with the requirements of the Regulation showed a significant lack of care and judgment in the practice of pharmacy and was significantly below the minimum standard expected of a pharmacist with several years of experience in community pharmacy; the failures in this regard would attract the serious disapproval of pharmacists of good repute.

6 The second particular was that between 5 April 2004 and 6 December 2004 at his pharmacy Mr Ng failed to record in the register the receipt of supplies of a variety of drugs of addiction contrary to clause 112(1) of the Regulation. The Tribunal considered that the matters proved in particular two were more serious than those alleged in particular one, the evidence showing that Mr Ng who was dealing with 43 drugs of addiction overall, had no procedure in place for checking them.

7 The third particular was that between 16 September 2004 and 21 December 2004 Mr Ng failed to record in the register the supply of drugs of addiction as required by clause 112(1) of the Regulation. The drugs in question included a benzodiazepine and a methadone tablet. Except for one dispensing that was recorded a day late, none of the dispensing was recorded in the register even though the drugs of addiction were supplied in each case. The Tribunal considered that the allegations in this particular were at least as serious as those in particular two, concluding that the matters alleged and proven amounted to a very serious lack of care and of judgment in the sense of disregarding legislation that he knew he was bound to follow.

8 The fourth particular was that on one occasion in either May or July 2004 Mr Ng failed to record in the register the receipt of a drug of addiction, namely morphine, contrary again to clause 112(1) of the Regulation. The Tribunal (quite rightly as it seems to me) concluded that this transgression was not as serious as many of the other matters raised by the separate complaints.

9 The fifth particular was that on 17 occasions Mr Ng supplied drugs of addiction on prescriptions which failed to comply with the requirements of clause 77 of the Regulation, contrary to clause 85 of that instrument. In respect of these incidents the Tribunal concluded that Mr Ng’s standard of dispensing and record keeping was significantly below the accepted standard for a community pharmacist and would draw severe criticism from pharmacists of good repute and competence.

10 The sixth particular was that on various (specified) occasions Mr Ng supplied quantities of androgenic anabolic steroids on prescriptions which failed to specify the intervals at which the drug may be supplied in accordance with the requirement of clause 77(1)(f) of the Regulation, contrary to clause 38 of that instrument. The prescription requirements for anabolic steroids, as restricted substances, are similar to those for drugs of addiction. The Tribunal noted that it was unacceptable for pharmacists to dispense restricted substances contrary to clear and unequivocal legislative provisions and against the established standards of pharmacy practice and concluded that Mr Ng’s actions showed not only a lack of knowledge of the applicable legislation and judgment in applying it to circumstances in which it plainly operated, but also a lack of care in relation to the people to whom he dispensed the anabolic steroids outside the prescription parameters. It concluded that his conduct also showed improper and unethical conduct as a pharmacist in the practice of pharmacy.

11 The seventh particular was that between 21 February 2004 and 21 February 2005 on various occasions Mr Ng failed to properly record the details of the supply of pseudoephedrine in accordance with clause 54 of the Regulation, contrary to clause 23(2) of that Regulation. This was not a failure to record the supply but the failure to record the details properly.

12 The eighth particular was that on a number of dates and in respect of specified quantities Mr Ng supplied a drug of addiction (Hypnodorm) to patients in quantities and/or for a purpose that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the Regulation. In these cases there was a prescription from the patient’s treating doctor. The case of the HCCC was that the prescriptions authorised dispensing a quantity of Hypnodorm which was both significantly larger than the usual therapeutic dose and not appropriate. Mr Ng’s evidence was that he telephoned the doctors about the prescriptions to clarify and confirm the level of dose prescribed and was told by one of them that the higher dose was justified because the patient was undergoing heroin withdrawal while on methadone and by an associate of the other that the prescription was appropriate because of the particular, briefly described circumstances of the patient. Mr Ng agreed under cross examination that, even if that this is what the doctors told him, he had an independent responsibility as a pharmacist to refuse to dispense the medication but said that he did not have the medical knowledge, in effect, to disagree with the doctor’s opinion. On further questioning he added, in effect, that he could understand (and, I think) agreed with the need for prescribing a greater than standard dose. He also agreed, however, that if he were presented with such prescriptions again he would consult with the Department of Health and exercise his own judgment about them. Mr Ng said that his practice was to endorse on the prescription what he was told by the doctor but that those prescriptions were placed with the other (conventional) prescriptions and shredded after about a week or so. Although it appears that Mr Ng did not agree with the evidence of Mr Vincent (the expert reviewer) called by the HCCC that the quantities dispensed were inappropriate (as to which, of course, mere reference to the standard quantity could not establish), both parties appear to have proceeded on the basis that Mr Vincent’s view was correct.

13 The Tribunal did not accept Mr Ng’s evidence that he rang and queried doctors about the dosages, summarising its reasoning as follows –

“Being a private prescription I must have endorsed on the part that was disposed. I tried to look for the endorsement but I usually endorse after I have spoken to the doctor, but being a private script we only kept one of the duplicates”.

and then went on to explain about the shredding of the duplicates of private prescriptions. There was no notation of any calls to doctors on any of the copies of the relevant prescriptions in the documentary evidence available to the Tribunal. [Mr Ng] was unable to produce any evidence to corroborate his statement, despite there being well established practices in relation to pharmacists recording their contacts with doctors about prescription issues.

14 The ninth particular was that between March 2004 and January 2005 at his pharmacy, Mr Ng supplied quantities of testosterone on prescription for three patients, but failed to keep the prescriptions, contrary to clause 41(1) of the Regulation and/or failed to keep the prescriptions apart from other prescriptions contrary to clause 41(2) of the Regulation. It appeared that the inspectors were unable to find the prescriptions, despite the fact that they should have been kept apart, but Mr Ng found them, he claimed, a few months before the hearing, though his evidence on where and how he did so was unclear and he admitted to failing to keep them “properly”. Despite this claim, only two of the prescriptions were produced to the Tribunal and not that which concerned the third patient. The Tribunal was therefore unwilling to accept Mr Ng’s evidence that he had found it in the absence either of the prescription or other documentary proof of its existence. One of the prescriptions that was produced showed that the substance was dispensed twice to one patient, which was illegal, as the prescription did not specify the intervals at which it could be supplied. The Tribunal considered that the matters proved in relation to this particular were further examples of Mr Ng’s significant lack of judgment in relation to the practice of pharmacy and his lack of knowledge of how to meet the legislative requirements for conducting a community pharmacy properly.

15 The tenth particular was that between about October 2005 and about November 2005 at his pharmacy Mr Ng made or caused to be made false and/or misleading entries in the pharmacy’s computer dispensing records, namely, approximately 2,000 entries for the purported supply of Alphapharm brand products to two fictitious patients. This particular was admitted. Unsurprisingly, Mr Ng conceded that what he did was wrong and dishonest and well below the requisite standard of judgment and care. His motive was to gain a better discount rate on his purchases from the drug supplier Alphapharm by fraudulently constructing purchases from that company that he did not intend to complete.

16 Overall, the Tribunal concluded that Mr Ng’s commission of the acts specified in the particulars demonstrated that his knowledge, skill, judgment and care were significantly below the standard reasonably expected of a pharmacist of equivalent experience. Together with his conduct in relation at least to Alphapharm and to supplying the anabolic steroids and the over-prescription of Hypnodorm, his conduct was seriously unethical and amounted to unsatisfactory professional conduct of such a serious nature as to justify suspension or cancellation of his registration and thus was rightly described as professional misconduct.

17 Complaint 3 concerned Mr Ng’s conviction of criminal offences in February 2007 in the Local Court of contraventions of various clauses of the Regulation.

18 The discussion of these offences in the Tribunal’s reasons indicates that it was of the opinion that two of the offences were more serious in criminality than the others, the first in giving a second supply of Physeptone (methadone tablets) contrary to the legislation, so that the patient received a month’s supply of 180 of them and then, within seven days another month’s supply of 180 tablets, adding up to quite possibly a lethal dose; the second concerned the supply by Mr Ng of Flunitrazepam (Hypnodorm) otherwise known as “the date rape drug” on a prescription that did not include the dosage in both words and figures, so that it could easily be increased by forgery. The Tribunal noted that the eight offences of which Mr Ng was convicted occurred in a period of approximately six weeks between 11 November and 20 December 2004

covered a range of acts and omissions that were contrary to required processes that were essential to protect the public interest … [and also covered] some dishonest and unethical activity … [which] were, in some cases at least, repetitions of behaviours that [Mr Ng] had been in trouble for previously and which he had indicated he would not repeat.

The offences were also personally disgraceful in that at least one of them demonstrated calculated and lengthily carried out dishonesty [the false entries relating to Alphapharm which were the subject of the tenth particular of the other complaints] … [whilst] two of them opened the possibility of serious harm to the patient or members of the public and all of them showed a continuing disregard of the obligation to comply with processes made mandatory by legislation for those practising pharmacy.

19 Having found that the circumstances of the offences were such that Mr Ng was unfit in the public interest to practice pharmacy, the question then was whether he continued to be so unfit. Before dealing with the Tribunal’s reasons in this respect, it is necessary to refer to parts of the evidence in order to understand the reasoning of the Tribunal. Mr Ng’s appeal largely focused on this issue.

Mr Mahony’s inspection of the pharmacy

20 As is usual practice in the Tribunal, the HCCC and the pharmacist each called expert evidence on the nature and significance of the impugned conduct of the pharmacist. Mr Ng called a Mr Mahony, who was a pharmacist with 40 years of experience in the profession and undoubtedly qualified by that wide experience to give the opinions upon which Mr Ng relied. The expert evidence called by the HCCC came from a Mr Vincent whose expertise was also substantial and on whose opinions it was undoubtedly reasonable for the Tribunal to rely. By and large, Mr Vincent and Mr Mahony were in agreement although Mr Vincent’s strictures were somewhat more severe than those of Mr Mahony. Overall, the Tribunal favoured Mr Vincent’s approach.

21 In respect of one particular matter, however, the Tribunal of necessity relied on the report of Mr Mahony. This concerned a visit by him on 18 February 2010 to Mr Ng’s pharmacy, when he interviewed Mr Ng and his staff, observed the operation of the pharmacy and carried out a detailed inspection. In respect of the supply of controlled medicines and the maintenance of the Drug Register he confirmed that everything was current and in order and also that proper procedures were followed. In connection with the supply of anabolic steroids, Mr Mahony noted “there were a few recent transactions for these items, however on examining the retained documents and computer records, the correct procedures were being applied and appropriate intervals were endorsed on the prescriptions”. In respect of pseudoephedrine, Mr Mahony reported that Mr Ng “provided a copy of the Quality Care Pharmacy Practice standard for the supply of pseudoephedrine … [which] had been audited in February 2010 as QCPP standard”. He noted that Mr Ng had demonstrated the procedures and showed copies of records of previous transactions which procedures were confirmed with Mr Ng’s registered pharmacist and his two staff members who “demonstrated their knowledge and understanding of these procedures”. In respect of false and misleading entries in the dispensary computer access was provided to the computer and various reports regarding Alphapharm and similar generic supplier products were produced. Mr Mahony concluded that it was ”evident from these reports that all sales matched transactions on client/patient records and a sample of these records could be substantiated as real persons”. Mr Ng also had addressed the issues concerning membership of the Pharmaceutical Society of Australia and the Pharmacy Guild of Australia and, so far as the breaches which had been the subject of his conviction in the Local Court “everything was current and in order”. It is apparent from this report that Mr Ng had corrected his previous failings in respect of matters which were the subject of the complaints brought against him and no other breaches were reported.

22 The report’s executive summary included the following paragraphs –

My observations during my visit to the pharmacy and discussions with Mr Ng and his staff are that Mr Ng is most anxious that he has re-offended and is most remorseful. Mr Ng also accepts that since the 14 February 2000 Pharmacy Board decision and implementation of its orders [see below], he has not changed his business and professional practices sufficiently to prevent a recurrence of the problems that bring him before this Board of Inquiry.

My observations at the pharmacy are that it is not functioning professionally and cannot continue in its present mode. I could not therefore provide a positive peer report. I do, however, make a number of recommendations to provide a framework for Mr Ng to continue to practice as a pharmacist without being a risk to the public.

Mr Ng I believe failed to comply [ semble , completely – see below] with the earlier orders of the Board due to a lack of commitment to change, some difficult business circumstances (due to the reconstruction of the Top Ryde Centre), a lack of business acumen and experience in the Australian ethic/professional culture and/or insufficient support to achieve the orders set out by the Board.

Mr Ng has maintained his DD Register in an accurate manner since his interview with Mr Battye and Mr Gavrilovic in February 2005.

23 The report contains a detailed description of the physical environment of the pharmacy which, generally speaking, could fairly be described as showing a substantial degree of disorganisation, summarising the situation as –

Overall the whole shop included items that could only be classified as dirty, unsafe, untidy and disorganised with many items (possibly as high as 15%) of stock and/or equipment (50%) that were out of date or in an unsaleable shop soiled condition.

• Between September 2008 and November 2009 he had accrued 10.5 CPE hours. The Board finding in 2001 required he do 20 hours, of which 10 must be face to face for at least five years. The new Pharmacy Act requirements will in the near future be 20 hours. He had therefore failed to achieve the standards required of him as a pharmacist.

• Self assessment indicated all standards had been met, yet there were obvious gaps and omissions as outlined above.

• Almost all standards the column ‘Responsibility of Action’ was identified with a ‘P’ that is Mr Ng indicating no delegation to any staff person.

• Brand substitution policy stated generics were ‘three trusted generic brands were Alphapharm, Arrow and Sandoz’ yet this has changed to Generic Health and Pharmacor. This had been the case for many months according to staff.

• Incident reports were not logged.

• Staff policies were not followed.

• Staff training schedule was already behind.

It could only be concluded that Mr Ng was attempting to present a case for changing his standards and practices without actually committing to the change.

24 Mr Mahony was, not surprisingly, cross-examined on the report and asked in particular about the criticisms set out above. He was taken to his conclusion that the pharmacy was “not functioning professionally and cannot continue in its present mode” and asked whether this expressed concerns “that the pharmacy as it is presently functioning presents a risk to public health and safety”. Mr Mahony’s response was this –

No, I can’t conclude exactly that. If I can explain, the issues were that within the standards of the QCPP … there were lots of standards there which related to some occupational health and safety issues, whether they be lighting, whether they be cleanliness, whether they be whatever. They were well below the standard and I can’t necessarily say that the public were being put at risk by that, but it was below the standard that one would have accepted.

25 Mr Mahony was then taken to those parts of his report that noted that some cardboard boxes of credits had been in the position for more than six months, stock appeared to be overflowing on every shelf and that the dispensary was small and disorganised with a counter that did not provide adequate workspace. He agreed that these were all matters that indicated the pharmacy was below a standard which he would “expect as appropriate”. It was put to Mr Mahony that it “expressly demonstrates that as at today’s date you had … real concerns about the standard at which the pharmacy was working”. He answered –

I can’t entirely agree with that particular statement. If I can just comment that my concern was not that Mr Ng couldn’t operate the pharmacy at that level, but that standards would have to change and to meet what I would say is the real standard of pharmacies of this size at this location needed to have, so that it was a case of he was definitely below the recommended standard but, if he was going to be able to demonstrate that he wasn’t going to have a problem in the future, then his standards had to be higher than those that were existing now and those which he had previously understood.

26 Mr Mahony’s references to the shop being “dirty, unsafe, untidy and disorganised” concerned power points, steps and locations of items which were posing risks, mainly to pharmacy staff rather than patient care. Significantly, he denied that the problems of layout and so on to which he had referred created the potential for mistakes to be made in the dispensing process, observing –

I don’t believe that as a corollary. I think that my major concern was actually Mr Ng’s total work level and workload, because there were things which were inefficiently handled and creating extra demands on him as an individual and to some extent as a professional. I don’t believe he actually was demonstrating that he was not providing a level of service to his clientele, but to do that he was working quite a deal inefficiently to provide that level of service.

27 Mr Mahony was then taken to comments under a heading “Waiting Prescription Items” to the effect that his inspection “showed some items not collected since before Christmas, some not labelled, did not match attached prescriptions, marked ‘Immediate supply required’ had not been collected some weeks after being dispensed”. He explained that these were matters of concern but rather “more an inefficiency and probably to Mr Ng’s detriment that he has stock that is sitting on a shelf that isn’t going to be collected and isn’t going to be paid for by the client, that should be in the dispensary and it is not a patient care issue, it is more an economic business issue”. Further explanations along these lines were given but it is not necessary to refer to them.

28 The thrust of Mr Mahony’s report is clear. To the extent that Mr Ng’s level of disorganization contributed to the matters identified in the complaints, it was undesirable but the criticisms concerned the management of his shop, not breaches of professional standards properly so-called.

Board of Inquiry proceedings in October 2000

29 Complaints were referred under the Pharmacy Act 1968 against Mr Ng that, on 7 July he was convicted of an offence that, not being an appropriately qualified person, he supplied a restricted substance, commonly known as Betnovate, contrary to Part 3 of the Poisons Act 1966 and, on 9 December 1998, he was convicted of supplying by wholesale a substantial quantity of Aldomet, a restricted substance, for therapeutic use without a wholesaler’s licence or authority issued under the Regulations made under the Poisons and Therapeutic Goods Act 1996. He was convicted of similar offences on the same date concerning the supply of Betaloc, the possession of a Schedule 3 preparation (Proctosedyl ointment) in a room to which the public had access and, lastly of the supply of 18 various preparations by retail of regulated goods after the expiry date stated on those goods.

30 A second complaint alleged a number of other breaches involving the dispensing of anabolic steroid drugs, where the original prescription or a duplicate was not retained as required by the Regulation, issued more than six months prior to the date of supply, contrary to the Regulation, dispensed at least ten prescriptions on which a Schedule 8 drug was written together with another item, dispensed five prescriptions on which a Schedule 8 drug was written which did not have patients’ addresses on them, supplied 56 syringes of Deca-durabolin to the one patient, a quantity that did not accord with recognised therapeutic standards, dispensed two lots of Rohypnol tablets on prescriptions he ought, using responsible professional judgment, to have known were forged, and on a prescription that appeared to have been altered without having been initialled by the prescriber, dispensed at least ten prescriptions that had not been annotated with a date of supply and/or reference number and/or the name of the pharmacy, approached doctors and requested them to write prescriptions in the name of patients whom they had not seen involving scripts for Rohypnol and Deca-durabolin, requested a patient to approach two different doctors to obtain prescriptions for dispensed Rohypnol, and supplied Betnovate, Aldomet and Betaloc (restricted substances) by wholesale without a wholesaler’s licence or authority.

31 These offences variously occurred between January 1994 and September 1995 and in October 1997. With respect to the supply of Betnovate, Mr Ng explained that he was busy and did not have time to contact the doctor and was now vigilant, making every effort to call the doctor for owing prescriptions. So far as the wholesale licence or authority to supply restricted substances by wholesale, he said he was ignorant of the legal requirement for obtaining either the licence or approval. There was, however, evidence to the effect he could have obtained a licence had he sought one. So far as the storage as Proctosedyl was concerned, Mr Ng conceded that he was unaware of the schedule concerning these products, that he now employed more staff and was personally more vigilant when checking expiry dates and proper storage of drugs. He conceded that until October 1997 he was unaware that it was unlawful to sell expired stock. Seven of these latter complaints were matters for which he was convicted and therefore involved doubling up. There was evidence that, since these complaints were referred, the pharmacy practices of Mr Ng had changed in a number of significant effects, in short being better organised and more efficiently run. The explanation for his practice as a pharmacist falling short was, it seems to have been accepted, that he was trying to run the pharmacy on a shoestring budget without sufficient staff and doing nearly all the work himself and thus was overworked. (This was obviously the concern to which Mr Mahony referred.) He also was lacking in judgment and was somewhat inexperienced.

32 Two of the complaints were found not to have been established. In respect of the other complaints, the Board found Mr Ng guilty of professional misconduct and cautioned and severely reprimanded him.

33 The Board decided not to impose a fine, adding –

However, given Mr Ng’s rather recent conversion to good pharmacy practice and in the light of his history of lack of knowledge, skill, care and judgment, the Board finds it appropriate to impose a number of conditions on his practice to ensure that not only knowledgeable practices but ethical practices be maintained.

34 He was subjected to orders requiring a significant degree of supervision and undertaking of continuing professional education for the ensuing five years and completion of the pharmacy graduate training course conducted by the Pharmaceutical Society of Australia.

The issue of remorse and current unfitness

35 The Tribunal’s views as to Mr Ng’s fitness to be registered as a pharmacist were expressed in connection with the third complaint (but actually relevant to them all) in the following way –

[54] Mr Ng’s apparent failure to change his practices, despite his claim that he has done so, as evidenced by Mr Mahoney’s statement that Mr Ng’s pharmacy was not, on 18 February 2010, functioning professionally and that he has not changed his business and professional practices sufficiently “to prevent a recurrence of the problems” that led to the Pharmacy Board inquiry in 2000, led the Tribunal to the view that any expressions of remorse by Mr Ng were mere words, not backed up by action.

[55] Both peer reviewers in this matter were strongly critical of the behaviour that led to the charge of false and misleading entry into a record or register.

[56] Mr Mahoney’s report relating to his visit to Mr Ng’s pharmacy 18 February 2010 together with Mr Ng’s recent actions and his evidence at the hearing in which he made claims that he had done certain things which pharmacy practice requires to be recorded but could not show the recordings, satisfied the Tribunal that Mr Ng’s lack of fitness to be registered as a pharmacist, as demonstrated by his convictions in 2007, continued right up to the hearing.

36 The concerns of Mr Mahony were not that what he saw showed a repetition of the wrongful conduct that had led to the two proceedings against Mr Ng. Rather, he thought the disorganisation of the premises of his pharmacy and his business practices had not sufficiently changed to prevent the recurrence of the problems (or, at least some of them) that had given rise to the earlier complaints and, as well, those presently being considered. (Obviously, this is a general statement since, strictly speaking, the particulars of the complaints differed, although their generic character was somewhat similar). This reflected no more than a common sense view that, where a pharmacist is disorganized, the likelihood of failings in respect of records – both making them and keeping them – is increased.

37 The Tribunal noted that, despite Mr Ng’s assertion to the earlier Board to the effect that he would henceforth comply with his legal obligations as a pharmacist, he had “returned to old and professionally unacceptable practices that were contrary to the legislation”. This, of course, was certainly true, on Mr Ng’s own admissions. The Tribunal noted that Mr Ng had complied for much of the period specified but not for its entirety with several of the Board’s requirements and characterised his attitude as showing “a cavalier approach” to the conditions. It summarised the position as follows –

[79] Mr Ng was given a chance to save his career as a pharmacist in 2001. The Board of Inquiry required him to be supervised over a three month period and placed quality assurance and other conditions on his registration to assist him to keep up with developments in pharmacy and pharmacy practice and the developing professional, legal and ethical requirements of that practice. The evidence before the Tribunal was that Mr Ng was unable to gain or retain any benefit from the conditions placed on his practice and by 2004 had returned to old and unacceptable practices.

38 The Tribunal referred to the conflicting opinions as to future suitability to practice expressed by Mr Mahony on the one hand and Mr Vincent on the other –

[77] Mr Mahony suggested it would be possible for Mr Ng to continue in practice and set out a proposal to achieve this. Mr Vincent did not agree with that proposal and explained why. He also said that “a plan to rehabilitate Mr Ng is possible” and then went on to outline a proposal that would have required Mr Ng to work in another pharmacy before returning to his own pharmacy where substantial changes would have to be made both physically and in all other respects.

39 The Tribunal referred to the submission made by counsel on behalf of the HCCC that Mr Ng should be deregistered and that at least one year should elapse before he could apply for re-registration and went on to state –

The Tribunal considered that given the whole of the evidence of Mr Ng’s breaches of the legislation and his actions and omissions that led to the findings of professional misconduct against him and his current unfitness to be registered, that a period of at least two years must elapse before he may apply to the Tribunal, or any successor Tribunal for an order allowing re-registration.

40 It seems to me that the following matters, which were given distinct emphasis in the Tribunal’s reasons, explained this conclusion. The most significant was, of course, the repetition of significant breaches of professional standards and legal obligations following the earlier Board of Inquiry. Also of importance were several interlinked factors: it did not consider that Mr Ng was genuinely remorseful; his pharmacy was “not functioning professionally and could not continue in its present mode”; and, that his evidence at the hearing (concerning especially the claimed conversations with the doctors about the prescriptions for Rohypnol) could not be accepted as truthful because he was unable to produce the record which he claimed he had made and, to a lesser extent, the late production of two and non-production of a third prescription.

41 In dealing with these matters, the Tribunal’s reasons set out the evidence of Mr Ng as to his telephone conversations with doctors and then stated –

‘Being a private prescription I must have endorsed on the part that was disposed. I tried to look for the endorsement but I usually endorse after I have spoken to the doctor, but being a private script we only kept one of the duplicates.’

and then went on to explain about the shredding of the duplicates of private prescriptions. There was no notation of any calls to doctors on any of the copies of the relevant prescriptions in the documentary evidence available to the Tribunal. Mr Ng was unable to produce any evidence to corroborate his statement despite there being well established practices in relation to pharmacists recording their contacts with doctors about prescription issues.

42 As I have already implied, it was significant that Mr Mahony’s inspection of Mr Ng’s pharmacy disclosed that, so far as he could ascertain, Mr Ng was not in breach of any of the legal, or, for that matter, ethical obligations imposed on him by virtue of his being a pharmacist. The substance of his criticisms were, leaving aside commercial considerations, that Mr Ng continued to be in a practical situation where some such breaches might more easily occur. A conclusion, therefore, that Mr Ng was indifferent to the need to act lawfully and ethically as a pharmacist could not fairly or properly be drawn upon the basis of Mr Mahony’s report. The relevant legislation and regulations imposed specific duties which, of course, a pharmacist must follow. But, if he or she does so, his licence to work as a pharmacist cannot be taken away because the way in which he complies with those obligations is thought to be inefficient, commercially unwise or otherwise unedifying. Still less does a pharmacist undertake not to “overwork” – whatever that might mean. Just because most pharmacists wear a white coat and their shops present an attractive commercial face to the public, and that this is what any reasonable and sensible pharmacist would do, does not mean that wearing jeans and a tee-shirt and working in a mess is in any way improper, of itself. Nor does it seem to be fair or proper to reason that, because a degree of inefficiency and disorganization contributed to Mr Ng’s substantive misconduct, his continuance of the messy and, in the broader sense, “unprofessional” mode of conducting his business meant that his evidence of remorse should be rejected. After all, so far as his legal obligations were concerned, Mr Mahony found that, indeed, he had changed his practices. Nor was there any basis for inferring that, at all events, Mr Ng’s general conduct of the pharmacy business had not improved, perhaps markedly, for all that this was insufficient in Mr Mahoney’s opinion. It should be obvious that dispensing drugs on prescriptions that did not comply with the legal requirements has nothing to do with untidiness, let alone messy premises.

43 The Tribunal, in my respectful opinion, elided the professional requirements of pharmacy with “professionalism” in the broader sense and failed to give adequate consideration to Mr Mahony’s explanations of the opinions expressed in his report. Indeed, this evidence was not mentioned by the Tribunal. In this respect it is worth noting, I think, that Mr Mahony’s evidence about his inspection was not at all the subject of controversy, nor was it (or could be) suggested that his explanations were not entirely conscientious, truthful and unaffected by bias towards Mr Ng. It was, of course, not necessary for the Tribunal to discuss, let alone mention, all the evidence but where an important conclusion is reached upon evidence whose true import cannot be appreciated without weighing up the explanation not referred to and those explanations are, in substance, contrary to the conclusion drawn, it is difficult to avoid the inference that the essential character of the evidence has been mistakenly understood.

Legal Framework

44 The relevant Act concerning the Tribunal’s jurisdiction is the Pharmacy Practice Act 2006 (“the Act”), which commenced operation in February 2008. The Act was repealed by the Health Practitioner Regulation National Law (NSW) Act 2009 with effect from 1 July 2010. Pursuant to s 49 of the Act any complaint that could result in a pharmacist’s deregistration is required to be referred to the Tribunal. Under s 66, the Tribunal could cancel or suspend a pharmacist’s registration. Section 66(2) provided –

45 A decision of the Tribunal could be appealed pursuant to s 92(1) –

46 The powers of the Supreme Court on appeal were prescribed by s 93(1) –

47 The pharmacist can also appeal to this Court under s 69 of the Supreme Court Act 1970, which is as follows –

Proceedings in lieu of writs

(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

48 Section 92 of the Act is in similar terms to s 90 of the Medical Practice Act 1992 which has recently been considered by the Court of Appeal in Prakash v Health Care Complaints Commission [2006] NSWCA 153. Basten JA usefully (if I may respectfully say so) summarised the scope of a practitioner’s rights of appeal. What follows is a distillation taken from his Honour’s judgment which, as I understand it, is not controversial. The Act creates what his Honour described as “bifurcated rights” in respect of firstly, “a decision of the Tribunal with respect to a point of law” and, secondly, “the exercise” of any [disciplinary] power by the Tribunal, where a complaint has been proved or admitted. The first right of appeal, as Basten JA noted, “adopts a common form of statutory language which is generally accepted as permitting an appeal where an error of law can be identified in the procedure adopted by the Tribunal, or in its reasoning, which is material to the final and operative decision, being either a decision that the complaint is proved or not or as to the disciplinary order made”.

49 The second right of appeal is not so limited. His Honour cited with approval characterisations used by Priestley and Clarke JJA in Bannister v Walton (1993) 30 NSWLR 699 in respect of this second right of appeal, the former noting that it did not “extend to questioning the acceptance by the Tribunal of the facts comprising proof of the complaint (30 NSWLR at 734C) and the latter noting that in respect of this right of appeal, the Court acts on ‘the basis that the factual findings underlying the “decision” of the Tribunal are not open to scrutiny’, his Honour continuing by way of explanation (at 735A-B) –

It may be, however, that the Tribunal may reach conclusions on a number of factual issues which, while not strictly relevant to the complaint, may be considered to be of importance in determining what is the appropriate [disciplinary] order …. In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order [in an appeal of this kind] ….

50 Basten JA concurred that it had been recognised “that the exercise of power constituted by the making of disciplinary orders was discretionary in nature and that an appellant must identify an error of the kind specified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 (Dixon, Evatt and McTiernan JJ). His Honour cited the oft-quoted passage from this joint judgment –

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

Azzopardi v Tasman UEB Industries Ltd

Warren v Coombes

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2)

Supreme Court Act

51 In dealing with the situation where it is argued that matters were considered which should not have been taken into account whilst material considerations were ignored which should have been taken into account, his Honour observed –

[88] A broader approach may be appropriate in considering an appeal against a discretionary judgment. Thus, a material consideration may involve any matter having potential relevance to the exercise being undertaken and may not be limited to legally mandatory considerations. In this sense, what is relevant will depend upon the particular circumstances of the case, as well as the scope and nature of the statutory power. However, the obligation of the Tribunal to consider such matters will not usually extend beyond those presented to it by the party seeking to resist the exercise of a particular power in circumstances where it had been engaged: …

52 His Honour then turned to the tension between two lines of appeal –

[89] It may be accepted then that the power of review of an order [imposing a disciplinary consequence] … even constrained by the principles in House v The King , is likely to permit a wider scope for review than that contained in [an appeal on a point of law] …. Thus, at least in relation to findings of professional misconduct, where the complaint is found proved and not challenged, or the challenge is unsuccessful, the proper inference from the statutory scheme is that the challenge to the order of the Tribunal, so far as it does not identify an error of law, must identify an error of principle, but one which does not form a basis of the finding that the complaint has been proved. In the case of a finding of professional misconduct, this may be a serious constraint, because almost any circumstance affecting the severity of the misconduct, will be relevant to the finding that it was indeed “professional misconduct”. Thus an appellant who is able to challenge only the order made by the Tribunal may well be effectively limited to such matters as a failure to give proper weight to prior good conduct or evidence of rehabilitation.

53 His Honour then went on to point out that a consideration of the propriety of the exercise by the Tribunal of its discretionary powers involving the need to protect the interests of the public at large, which include the standing of the medical profession and maintenance of public confidence in their high standards and the need to deter non-compliance and encourage compliance with professional standards, implies the desirability of according “a degree of flexibility” in the exercise by the Tribunal of its powers, at least in relation to professional standards. On the other hand, Basten JA inferred that the conferral on the Court of the power to make such order “as it thinks proper having regard to the merits of the case and the public welfare” implied that a “judgment as to what is required having regard to ‘the public welfare’ is seen by Parliament as one which may be exercised equally well by this Court as by the Tribunal”.

54 Although this discussion of principle by Basten JA was not, in terms, adopted by the other members of the Court (Tobias and Santow JJA), there was no suggestion of disagreement. If I may respectfully say so, I have found his Honour’s discussion illuminating and helpful and propose to apply his analysis to the issues raised in the present appeal. At the same time, it is important to note that it is not put on Mr Ng’s behalf that the findings of professional misconduct were in any way affected by error. The matters to which he points concern the exercise by the Tribunal of its disciplinary powers and, in respect of those which are not points of law, call into question its findings of continuing unfitness (ie, remorse and rehabilitation).

55 Referring to Prothonotary of the Supreme Court v P [2003] NSWCA 320 (which concerned a solicitor) and HCCC v Schmich [2009] NSWNMT 19 (concerning a nurse) the Tribunal listed the following matters as relevant to determining whether the circumstances of offences of which a pharmacist had been convicted were such that he or she was unfit in the public interest to practice pharmacy, in the context of considering the significance of Mr Ng’s convictions in the Local Court. Although it is true that P concerned the significance of the solicitor’s drug addiction and consequent importation of a quantity of cocaine for her own use, the statement of principle by the Court was not confined to the significance of the solicitor’s criminal conduct but, as it seems to me, applied to all improper conduct including, of course, the breach of statutory duties imposed on professional persons as a condition of their being permitted to undertake their professional activities. Relevant considerations were noted by the Tribunal as follows –

(1) The onus of proving these matters is on the HCCC;

(2) An order cancelling the registration of a pharmacist should only be made when the probability is that the pharmacist is permanently unfit to practice;

(3) The fact that the pharmacist has a conviction for a serious offence is not necessarily a sufficient reason for an order deregistering them;

(4) The fact of a conviction (and imprisonment) is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself;

(5) The Tribunal needs to consider the conduct involved in the conviction and see whether it is of such a personally disgraceful character that the pharmacist should not remain a member of an honourable profession;

(6) The fact that the pharmacist pleaded guilty to the charge will usually be counted in their favour … [but] it is appreciated that not all pleas of guilty necessarily show remorse;

(7) Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice, there may not even have been any criminal conviction with respect to that conduct … [which] is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations (not relevant in this case);

(8) The attitude of the professional association (or a peer reviewer) is of considerable significance; and

56 In this case, it is clear that the convictions covered conduct which was otherwise the subject of specific complaints and, of themselves, added little of any significance.

The consequential orders

57 I have already referred to the Tribunal’s summary of the positions of the two reviewers and its decision to reject both approaches. The Tribunal adverted to Mr Ng’s “chance to save his career as a pharmacist in 2001” but concluded that the evidence “was that Mr Ng was unable to gain or retain any benefits from the conditions placed on his practice and by 2004 had returned to old and unacceptable practices”. It noted that Mr Ng qualified as a pharmacist some 30 years previously and had been practising pharmacy in New South Wales for 20 years and been the registered owner of a community pharmacy since November 1992. During this time, the Tribunal noted, “Mr Ng has been convicted of altogether 31 offences relating directly to the practice of pharmacy on three different occasions in 1995, 1998 and 2007 … [and had also] been found guilty of professional misconduct on the grounds of numerous failures to apply the law and establish professional practices on two occasions, first by the Pharmacy Board of Inquiry in 2001 and now by the Pharmacy Tribunal in 2010 … [and] has been found to be unfit currently to be registered as a pharmacist”.

58 The Tribunal noted that these findings did not require deregistration since it had a discretion to make appropriate protective orders applicable in each case although it noted (correctly) that consistent disposition of disciplinary cases was important and the jurisdiction was designed to “ensure the protection of health and safety of members of the public and that only health professionals who are fit to practice may do so”.

59 The Tribunal referred to a number of other cases decided either by Pharmacy Boards of Inquiry or by the District Court on appeal from such boards of inquiry including in particular several in which the pharmacist had demonstrated a prolonged or continuing pattern of failure to comply with the legislative obligations, including several which dealt with the significance of remorse and proved rehabilitation. In respect of this latter feature, the Tribunal stated that it “did not consider that Mr Ng was remorseful in fact … [and furthermore] the evidence of Mr Mahony … was that Mr Ng’s pharmacy was not functioning professionally and could not continue in its present mode”. The Tribunal also noted: “Mr Ng’s admissions were only to those factual matters clearly proven by the documentary evidence. He did not admit to some key matters and did not admit to the consequences of his behaviour”. It also commented that the evidence did not show in any substantial way that Mr Ng set out in a positive way to respond to the earlier adverse decisions concerning him. In summary, the Tribunal considered that the professional misconduct demonstrated by Mr Ng was serious and that he was currently unfit to be registered as a pharmacist.

60 Although it was submitted by counsel on behalf of the HCCC that the deregistration for which it contended should not be able to be reconsidered before at least one year had elapsed, the Tribunal stated -

… Given the whole of the evidence of Mr Ng’s breaches of the legislation and his actions and omissions that led to the findings of professional misconduct against him and his current unfitness to be registered, that a period of at least two years must elapse before he may apply to the Tribunal, or any successor Tribunal, for an order allowing re-registration.

The Grounds of Appeal

61 These may be conveniently stated as follows:

first, the Tribunal failed to address (as distinct from mentioning) the question whether it was probable that Mr Ng “is permanently unfit to practice”;

secondly, the Tribunal erred in determining that it was not appropriate to give detailed consideration of the relevant evidence of the two expert witnesses, each of whom proposed a disposition falling short of deregistration which, in particular, put forward proposals which would have sufficed to satisfy the requirements of the protection of the public;

thirdly, the conclusion that Mr Ng was remorseful in fact was based on a misinterpretation of the evidence of Mr Mahony, upon whose description of the pharmacy at the time of his inspection was cited by the Tribunal as justifying it;

fourthly, the Tribunal failed to consider Mr Ng’s evidence as to his willingness to adopt the plan proposed by Mr Mahony which differed markedly from that which had been imposed by the Board following the 2001 inquiry which, in the event, proved inadequate; and

fifthly, there was no consideration or an inadequate consideration of the prospects of Mr Ng’s not re-offending.

62 During the hearing of the appeal, a further issue was identified, namely, whether the Tribunal was entitled to conclude, as it apparently did, that Mr Ng’s evidence of consulting with the prescribing doctors in connection with the excessive prescriptions for drugs was not truthful when such an allegation had not been put to him in cross examination.

Discussion

63 It will be seen that the grounds of appeal concern the question of Mr Ng’s continuing unfitness. They do not call into question the propriety of the findings that the complaints were proved. It is necessary, therefore, to approach the appeal on the basis, in substance, that the requirements of House v The King apply to testing the exercise of the Tribunal’s discretion as to outcome, in particular, whether Mr Ng should have been deregistered. In doing so, the discretion will have miscarried if the Tribunal has made either a mistake of significant law or fact. If, however, the impugned fact was a necessary factor in finding the complaints proved, it cannot be re-examined. As I see the matter, the grounds of appeal are cast either as errors of law or a mistake of significant fact not going to proof of the complaints.

64 It is convenient to first deal with the last-mentioned ground. The closing submissions of counsel for the HCCC pointed to the requirement that a pharmacist, faced with a prescription for quantities in excess of the recognised therapeutic standards, should contact the prescribing doctor to ascertain the justification for the proposed supply, referred to Mr Ng’s evidence that, at least in respect of Dr Jackson’s prescription, he did speak to him about it, but submitted that such an inquiry was insufficient in the circumstances to meet his independent professional obligation not to dispense a prescription in excess of recognised therapeutic standards where there was no good reason for doing so, a matter as to which the pharmacist is bound to come to a positive conclusion that it was necessary or reasonable, though no doubt he or she should take into account the doctor’s opinion on the matter. At this point, the Chairman of the Tribunal made the following observation –

Chairman: Whilst you’re on that point … isn’t it the established position in relation to making notes and Mr Ng says he rang the doctor, made a note about it and then must have destroyed that note by following a practice of destroying certain material – isn’t it the case, if there is no evidence of it, you treat it as not having occurred?

Mr Ginters: That would be my submission, yes.

Chairman: This is an established position, because of the essential requirement of health practitioners, if they don’t note things and the note is not extant that it really didn’t happen.

Mr Ginters: One would have thought that if it was viewed as important to make an annotation on a prescription or a dispensing, if one considered that important enough to do, the notion that then one would subsequently destroy that prescription and destroy the record of behaviour that was other than the norm, in the sense of an aberration from what a script might have said, it’s a nonsense, quite frankly.

65 Counsel for Mr Ng submitted in due course that his client did take some steps to satisfy himself as to the propriety of the excessive prescriptions. The following exchange then occurred –

Chairman: … Isn’t the problem for you here that there is no evidence of the steps taken by your client other than his statement, that there are well established ways of recording these issues and there is no evidence of the recording of these contacts, when it is the practice to record such matters? This has been something that has been exercising our minds, that’s why I wanted to give you the opportunity to make submissions about it.

Mr Griscti: I understand. It has not been put to Mr Ng that he did not have the conversation. Mr Ng was asked by a Tribunal member if he made any notation and he responded that he did, but that he no longer had it … [his] evidence that he telephoned the doctor is unchallenged and there is no basis upon which, in my submission, the Tribunal ought not to accept that evidence.

Chairman: If that is what you want your submission to be, it’s up to us to make up our minds. It remains that it is well established in this profession, as I understand it and certainly in other professions, that you make notes of issues of this and a similar kind, and without proof of those, the usual approach is: well, it didn’t happen.

You say you got the evidence of your client saying he did do this, but he thinks the material was destroyed that would have proved it. It is worrying in itself and it also goes against the normal practice too, to record activities undertaken in relation to prescriptions. It raises an issue about sloppiness in relation to dealing with prescriptions too, doesn’t it?

Mr Griscti: It does potentially raise an issue, but as I say, it is an issue that has arisen as a result of a question during the hearing … I rely on his evidence that he telephoned the doctor … the making of the telephone call has not been challenged in any way, and indeed he goes further to say that in the same circumstances today he would take further steps. I can’t really take it any further than that.

66 It seems to me to be evident from the way in which the Tribunal dealt with the seriousness of Mr Ng’s misconduct and the genuineness of his expressions of remorse that it was not only influenced by the history of repeated failures to meet the proper standards required of pharmacists as well as his legal obligations and the situation described by Mr Mahony on his inspection, but also by its conclusion that Mr Ng’s evidence on an important matter could not be believed. It is self-evident that a conclusion that a pharmacist’s evidence on a key matter of professional conduct was not truthful was not only significant of itself but must also reflect seriously on other controversial claims as to remorse, an issue of vital importance to considering whether continuing unfitness and the need for continuing protection of the public. In my view, Mr Griscti’s submission that it was not appropriate for the Tribunal to act on the basis that Mr Ng’s evidence about this matter should be disbelieved when there was no challenge in cross examination to its truthfulness was correct, certainly unless there were some unusual circumstances that enabled such a conclusion fairly to be drawn in the absence of such a challenge. But there were no such circumstances and the Tribunal did not suggest their existence.

67 If I may respectfully say so, the suggestion by the Chairman arguendo that there were documents which ought to have been in existence which were not produced meant that it followed as a matter of necessary inference that they did not exist – as distinct from simply being a circumstance from which an inference of their non-existence might be drawn – is neither a rule of fact nor law, especially where, as here, the witness whose evidence is impugned gave an explanation as to why the documents could no longer be produced, an explanation which – considering the regrettable disorganisation of Mr Ng’s records – was not altogether unlikely to be true. Although it may be that the rule in Browne v Dunn is by no means absolute, it encapsulates an important principle of fairness. Had Mr Ng’s counsel been aware that it would be submitted on behalf of the complainant that Mr Ng’s evidence could not be accepted, having been alerted by cross examination to that effect, it may be that he would have been in a position to prove by other means that the impugned inquiry had in fact been made. In the result, the issue was not raised until final submissions and, even then, the matter was raised in the form of a query and it was not suggested to him by the Chairman that his submission as to the inferences which could or could not properly be drawn from the failure to produce the written notes was not accepted.

68 It may well be that the other evidence, taken as a whole, would have justified the conclusion of the Tribunal, especially given the repetition of Mr Ng’s very significant falling short of proper standards, that even if Mr Ng were remorseful, this was inadequate in the circumstances to counterbalance the conclusions to be drawn from his regrettable history. However, my reading of the careful reasons of the Tribunal for its orders has led me to conclude that the finding, in substance, of dishonesty, was a significant factor in the Tribunal’s conclusion that Mr Ng’s claimed remorse was not genuine, therefore to its conclusion that he must be deregistered for at least two years, despite the views of the reviewers, and, despite the submission of counsel for the HCCC that he should be permitted to seek re-registration after a year. Absent such a finding, it is not altogether clear that the same result would certainly have occurred, though it must be accepted that it would have been open, perhaps probable.

69 There is one other material feature which I have not so far mentioned in respect of the over prescriptions. This is the distinction between a failure on the part of Mr Ng even to query the propriety of supplying a greater than the standard therapeutic quantity of the drug on the one hand and, on the other, at least the recognition that the supply did exceed this standard quantity and called for, at least, a query to the doctor even if he failed independently to assess whether the prescription should be filled, bearing in mind of course the doctor’s view but exercising his own judgment about the matter. Deferring to the opinion of the doctor, though a failure, is plainly not as serious as not noticing or caring that the prescribed supply was greater than the standard quantity or, if it were noted, supplying the drug nevertheless without seeking any explanation. Accordingly, the finding of the Tribunal that Mr Ng did not query the doctors rendered his supply of the drugs in accordance with the prescriptions significantly more problematical.

70 It follows that the Tribunal’s rejection of the truth of Mr Ng’s evidence of contacting the doctors in respect of the over-prescriptions was affected by a denial of procedural fairness, amounting to an error of law.

71 For the reasons already given, the adverse findings of the Tribunal concerning the significance of Mr Mahony’s inspection report reflected a misunderstanding of its purport and an unexplained rejection of Mr Mahony’s evidence in clarification of his conclusions. With respect, this amounted to a mistake of significant fact that also caused the Tribunal’s discretion to miscarry.

72 It is unnecessary or inappropriate for me to deal with the remaining grounds of appeal.

The disposal of the appeal

73 I have already noted that the Tribunal departed, as it was perfectly entitled to, from the proposals of peer reviewers and, for that matter, the outcome proposed by complainant’s counsel. However, it seems to me that, in light of the matters to which I have drawn attention, the Tribunal’s orders could only be sustained if I were of the opinion that the same outcome was inevitable. I am not confident that this must necessarily have been the case, especially, of course, since I have not myself had an opportunity to assess Mr Ng; nor do I have the expertise to assess adequately the significance of the matters to which the peer reviewers referred, in particular to the factors which Mr Mahony reported following his inspection of Mr Ng’s pharmacy. In addition, if I were to exercise the powers of the Tribunal as provided in the Act, it would be necessary for me to take into account any further evidence that Mr Ng may wish to present (and the complainant to contest) as to his present situation and circumstances, again matters which call primarily for expert assessment. (Some evidence by way of a further report was presented on the appeal on the basis that it would not be referred to unless I had decided to exercise this power. On the whole, however, I think that it is inappropriate for me to do so. Accordingly, I have not taken that report into account.)

Conclusion

74 Not without some misgivings, in light of the admitted serious shortcomings displayed by Mr Ng and detailed in the evidence before the Tribunal, I consider that the ultimate orders of the Tribunal must be quashed and the matter remitted to the Tribunal for a reconsideration of the orders that are appropriate to be made in light of the findings of proved misconduct which, as should be evident, are not disturbed by this judgment.

75 Accordingly, the appeal is allowed. The order for the deregistration of the appellant is quashed. The appellant’s registration is reinstated. The matter is remitted to the Tribunal for determination of the appropriate orders based upon its findings that the complaints were proved.

76 In respect of costs, the parties have seven days in which to make written submissions.

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Citations

Ng v NSW Health Care Complaints Commission [2010] NSWSC 1220

Most Recent Citation

Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705

Cases Citing This Decision

1

Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705

Cases Cited

8

Statutory Material Cited

8

Prakash v Health Care Complaints Commission [2006] NSWCA 153

CITATION:	Ng v NSW Health Care Complaints Commission [2010] NSWSC 1220
HEARING DATE(S):	18 and 19 August 2010
JUDGMENT DATE :	22 October 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J
DECISION:	Appeal allowed, matter remitted for hearing on question of consequential orders.
CATCHWORDS:	PHARMACIST – Deregistration – Continuing unfitness – Whether remorseful – Significance of finding of dishonesty – Requirements of procedural fairness – Whether breach of rule in Brown v Dunn - Error of law – Mistake of fact – Whether Supreme Court should hear and determine consequential orders when quashed – Remit to Tribunal for determination.
LEGISLATION CITED:	Health Practitioner Regulation National Law (NSW) Act 2009 Medical Practice Act 1992 s 90 Pharmacy Act 1968 Pharmacy Practice Act 2006 ss 49, 66, 92 & 93 Poisons Act 1966 Poisons and Therapeutic Goods Act 1996 Poisons and Therapeutic Goods Regulation 2002 Supreme Court Act 1970 s 69
CATEGORY:	Principal judgment
CASES CITED:	Bannister v Walton (1993) 30 NSWLR 699 HCCC v Schmich [2009] NSWNMT 19 House v The King [1936] HCA 40; (1936) 55 CLR 499 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Prothonotary of the Supreme Court v P [2003] NSWCA 320
PARTIES:	Peter Wing Keung Ng (P) NSW Health Care Complaints Commission (D1) Pharmacy Tribunal of NSW (D2) Pharmacy Board of NSW (D3)
FILE NUMBER(S):	SC 2010/111230
COUNSEL:	J Simpkins SC and I Griscti (P) P Ginters (D1) Submitting appearances (D2&3)
SOLICITORS:	Gadens Solicitors (P) K Mobbs (D1) M St Hill (D2&3)