PHARMACY BOARD OF AUSTRALIA and HAMILTON
[2018] WASAT 95
•18 SEPTEMBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: PHARMACY BOARD OF AUSTRALIA and HAMILTON [2018] WASAT 95
MEMBER: PRESIDENT, JUSTICE J C CURTHOYS
SENIOR MEMBER C WALLACE
MR W BURG (SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 18 SEPTEMBER 2018
FILE NO/S: VR 95 of 2017
BETWEEN: PHARMACY BOARD OF AUSTRALIA
Applicant
AND
FELECIA HAMILTON
Respondent
FILE NO/S: VR 96 of 2017
BETWEEN: PHARMACY BOARD OF AUSTRALIA
Applicant
AND
CHETAN ANANT HEGDE
Respondent
Catchwords:
Abuse of power - Delay - Prejudice - Public interest - Pharmacist - National Law
Legislation:
Health Practitioner National Law (WA) Act 2010
State Administrative Tribunal Act 2004 (WA), s 47
Result:
Respondents' interim applications dismissed
Category: B
Representation:
VR 95 of 2017
Counsel:
| Applicant | : | A Elliot |
| Respondent | : | A Hershowitz |
Solicitors:
| Applicant | : | MDS Legal |
| Respondent | : | Meridian Lawyers |
VR 96 of 2017
Counsel:
| Applicant | : | A Elliot |
| Respondent | : | A Hershowitz |
Solicitors:
| Applicant | : | MDS Legal |
| Respondent | : | Meridian Lawyers |
Case(s) referred to in decision(s):
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Jago v District Court of New South Wales (1989) 168 CLR 23
Medical Board of Australia v Woollard [2017] WASCA 64
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 16 May 2017, The Pharmacy Board of Australia (the Board) filed applications (Applications) under the Health Practitioner National Law (WA) Act 2010 against:
a)Felecia Hamilton; and
b)Chetan Anant Hegde
alleging that they engaged in professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance during the period 1 January 2008 to 30 April 2009 (the Period).
The specific allegations against Ms Hamilton and Mr Hegde are that between 1 January 2008 and 30 April 2009, in their capacity as registered pharmacists, they engaged in a practice of dispensing anabolic steroids to their customers in quantities and combinations that they knew or ought to have known were not necessary for any therapeutic purpose, were likely to constitute an unacceptable risk to health, and had the potential for misuse, abuse and/or physiological or psychological dependence.
Both Ms Hamilton and Mr Hegde applied for orders pursuant s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) striking out the Applications on the basis of unreasonable delay by the Board on the basis that the Applications constitute an abuse of process for the purposes of s 47(1)(c) of the SAT Act.
Both Ms Hamilton and Mr Hegde have filed affidavits in support of their respective applications. The content of their affidavits is substantially similar.
The Board also filed material pursuant to orders made by the Tribunal on 21 November 2017.
The submissions made by Ms Hamilton and Mr Hegde are substantially identical. Similarly, the Board's responses are substantially identical.
Although both the substantive applications and the applications to strike out arise separately, it is convenient to deal with their s 47(1)(a) applications together.
Legislative framework and principles
Section 47 of the SAT Act provides:
(1)This section applies if the Tribunal believes that a proceeding
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
Authorities
In Medical Board of Australia v Woollard [2017] WASCA 64 (Woollard), Newnes and Murphy JJA stated at [130][150]:
130In disciplinary proceedings in the Tribunal against medical practitioners, the principal and ultimate issue will often be one of the practitioner's present fitness to practise [Herron v McGregor (1986) 6 NSWLR 246, 258], although under the National Law proceedings may also be taken against a practitioner who is no longer registered: s 138 of the National Law. The observations in Health Care Complaints Commission v Do [2014] NSWCA 307 [35] are pertinent in this context:
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. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. (emphasis added)
…
135The judge held that the term 'abuse of process' within the meaning of s 47(1)(c) is used in the sense in which that term is understood in a superior civil court of record [Primary decision [13], in which the authority for the proposition was said to be found in Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 [28] (sic [34]), [56]]. … In its application to a tribunal in the position of the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, relevantly for present purposes, is essentially protective of the public in character. Further, given that the Tribunal may impose disciplinary orders on practitioners, the exercise of the power in this context will also be guided by considerations relevant to the stay of criminal proceedings in a superior court of record: Walton v Gardiner.
136The cases are considered in more detail below but, by way of overview, the following observations are some of the principal ones which may be drawn from the cases for present purposes. The exercise of the power to dismiss or permanently stay proceedings should only be exercised in extreme or exceptional cases. The onus is on the person asserting abuse of process to prove it. It involves the party asserting abuse to establish that the controversy should be disposed of without a determination on the merits, and accordingly the onus is a heavy one. The categories of abuse of process are not closed. Abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. Thus, the court must be satisfied that the continuation of the proceedings would cause unacceptable injustice or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A mere risk of unacceptable injustice or unfairness is insufficient.
137In the context of a case such as the present, the considerations which would ordinarily be taken into account and which would be required to be weighed and balanced would include (without seeking to be exhaustive) whether there has been any unreasonable or undue delay in the prosecution of the proceedings; whether and to what extent there has been prejudice to the party alleging abuse, and the character of any prejudice, resulting from any undue or unreasonable delay; whether there are present any circumstances of the kind which inform the principles of double jeopardy; and the public interest in the prosecution of the proceedings in light of the scope and purposes of the relevant enabling Act, in this case the National Law Act.
…
148In Jago it was observed that proceedings may be susceptible to a permanent stay where:
(a)there has been unreasonable or undue delay in the initiation or prosecution of proceedings; and
(b)the effect of the delay is prejudicial in the sense that any subsequent trial will necessarily be an unfair one to the accused, or the continuation of proceedings would itself be so unfairly oppressive as to constitute an abuse of process [Jago (30-31), (33-34) (Mason CJ) and (5658), (60) (Deane J)].
149The word 'delay' in this context is a legally connotative word [Batistatos [36]]. The starting point is whether the delay is so prolonged that it is unreasonable in the context of the particular case [Jago (60) (Deane J)]. In determining whether there has been unreasonable or undue delay, regard will generally be had to matters such as the length of the delay, the reasons for the delay, and the accused's responsibility for asserting his rights [Jago (33) (Mason CJ), (60-61) (Deane J)]. In the context of criminal (and relevantly analogous) proceedings, in assessing the length of the delay and the reasons for it, regard will ordinarily be had to matters including:
(a)when the relevant authorities first became aware of the alleged conduct in question;
(b)when the relevant authorities first became aware of the material said to prove the accused's guilt;
(c)whether the charge is a complex one or simple one; and
(d)what is reasonable in the context of limited institutional resources [Jago (56), (60-61) (Deane J)].
150The exercise of the power to dismiss or permanently stay proceedings should only be exercised in extreme or exceptional cases [Jago (34), (60), (76); Walton (392); Edwards [34]; El Bayeh v The Queen [2011] VSCA 44; (2011) 31 VR 305 [27]]. It involves the applicant establishing that the controversy should be disposed of without a determination on the merits [TS [1]]. The onus is on the person asserting abuse of process to prove it, and the onus is a heavy one: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (529)].
In Woollard, Newnes and Murphy JJA stated at [177]:
It is convenient to commence a consideration of the question of prejudice by reference to the High Court's observations in Edwards[31]:
Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.
The relevant events occurred in between 1 January 2008 and 30 April 2009. In assessing the evidence the Tribunal has borne in mind what McHugh J stated in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551:
[Where there is delay, the whole quality of justice deteriorates] Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without any now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may well appear well based on the evidence given in the proceedings, but, if the Tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
The Board's case against Ms Hamilton and Mr Hegde
The applications against both Ms Hamilton and Mr Hegde relevantly allege:
By reason of the matters set out in … the Respondent engaged in professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance as defined in section 5 of the schedule to the National Law in that, in the period 1 January 2008 to 30 April 2009, she:
a.engaged in the practice of dispensing anabolic androgenic steroids to patients for a purpose which the Respondent knew, or ought to have known, did not accord with recognised therapeutic standards;
b.engaged in the practice of dispensing anabolic androgenic steroids to patients in quantities and/or in combinations which the Respondent knew, or 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; and
c.engaged in the practice of dispensing anabolic androgenic steroids to patients by dispensing repeat authorisations and/or multiple prescriptions:
i.in the same transaction; or
ii.in separate transactions conducted significantly within the period in which the medication would have been consumed if taken at the usual dosage,
when the Respondent knew, or 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 to whom those drugs could be on-sold and had the potential for misuse, abuse or psychological and/or physical dependency.
The Board submitted in relation to the case against Ms Hamilton:
…
3The primary complaint in this matter is not that the respondent failed to discuss the validity of the treatment regime with the treating doctors, but rather, that she failed to perform her important role as a final check on the prescribing practices of the treating doctors by failing to exercise her own independent professional judgment. The affidavit and written responses of the respondent are, in effect, a full admission to that misconduct in the sense that the respondent admits to having delegated her own professional judgment to the prescribing doctors. Likewise, even if the respondent did take steps to confer with doctors about treatment plans or even if she did question her presenting patients, the fact is that she dispensed combinations of anabolic steroids that she either knew or should have known were not for a therapeutic purpose. Any steps taken by the respondent are irrelevant to the rebuttal of that fact. The same issue arises in relation to the allegations relating to the frequency and amounts of anabolic steroids that were dispensed.
4The respondent's failures must be considered in light of the expectation that pharmacists be a final check on prescribing doctors. The fundamental nature of that role is demonstrated by the fact that in this case, those treating doctors were successfully disciplined in relation to the inappropriateness of their treatment regimes. Had the respondent been acting in accordance with her obligations just described, then those improper regimes might have been discovered earlier or might have been prevented in the first instance.
The Board made similar submissions in relation to the case against Mr Hedge.
The relationship between the Department of Health and the Board
Scott Anderson deposes:
4.From 2006 until 17 October 2010 I was employed by [the Medical Board of Western Australia] MBWA as a case manager.
5.To the best of my recollection, notifications were made to the MBWA in or about 2009 by the Department of Health in relation to the conduct of Dr Anish Singh, Dr Ismail and Dr Durston, who were medical practitioners identified in a report dated 26 June 2009 prepared by Robert Bateman of the Pharmaceutical Services Branch of the Department of Health (Bateman Report).
6.The Pharmaceutical Council of Western Australia (PCWA) was the body corporate constituted by section 7 of the Pharmacy Act 1964 (repealed) which, until 17 October 2010, was responsible for (amongst other things) the registration and licensing of pharmaceutical chemists, the registration of pharmacies and the conduct of investigations and disciplinary proceedings relating to the practice of pharmacy.
7.The MBWA and PCWA were separate statutory authorities, each of which operated completely independently of each other.
8.To the best of my knowledge and belief, the MBWA did not provide a copy of the Bateman Report to the PCWA, nor did the MBWA notify the PCWA of any issues relating to pharmaceutical chemists raised in the Bateman Report.
Transitional issues
9.With the introduction of the National Law on 18 October 2010, the MBWA and the PCWA transitioned to the National Registration and Accreditation Scheme (National Scheme), which is managed by AHPRA.
10.All disciplinary matters that were being investigated or prosecuted by the MBWA or the PCWA prior to 18 October 2010 were thereafter managed by AHPRA staff.
11.To the best of my knowledge and belief, at the time of transition to the National Scheme, the PCWA was not investigating or prosecuting any notifications made in respect of the respondent's conduct identified in the Bateman Report.
18 October 2010 to date
12.Since 18 October 2010 I have been employed by AHPRA as Team Leader in the Notifications Department.
13.On 26 November 2014 Fiona Stanton, who was at that time a director of MDS Legal and who had acted for the Medical Board of Australia in relation to proceedings against Dr Durston, Dr Ismail and Dr Singh (each of whom were identified in the Bateman Report), sent an email to Pamela Malcolm, as AHPRA's Director, Notifications and Legal Services (WA), attaching a copy of the Bateman Report (without any of the annexures to that report).
The Tribunal accepts that the Pharmaceutical Services Branch of the Department of Health was not related or associated with either the Board or its predecessor the Pharmaceutical Council of Western Australia (para 7 affidavit of Mr Scott Anderson sworn 06.03.18).
The Tribunal also accepts for the purposes of these proceedings that neither the Board nor its predecessor was aware of the existence of the Bateman Report.
The chronological history
Mr Hegde deposes that the Health Department conducted seven or eight audits of his pharmacy between 2004 and 2012, five of which appear to have occurred during the Period.
Mr Hegde deposes that other than a representative of the Health Department expressing a generalised concern about the possible diversion of anabolic steroids and requesting that his pharmacy take care to ensure that the person picking up the script was always the same person named on the prescription, during the audits the Health Department did not raise any concerns with Mr Hegde, which now constitute the subject matter of the application against him.
Ms Hamilton's and Mr Hegde's conduct was the subject of a report prepared by Mr Robert Bateman, an employee of the Pharmaceutical Services Branch of the Department of Health, dated 26 June 2009 (Bateman Report).
Ms Hamilton deposes that at no time from 2009 to 6 August 2015 had she been made aware of any concerns regarding her dispensing of anabolic steroids.
The Tribunal notes that it was the Health Department of this State Government that carried out the audits and the Pharmaceutical Services Branch of the Department of Health that prepared the report. Accordingly, the actions of the Health Department and in particular the Pharmaceutical Services Branch are irrelevant.
Mr Hegde deposes that in October 2010 he caused his pharmacy to cease anabolic compounding and since that time dispensing of Sustanon and Deca Durabolin has reduced significantly.
An investigator from the Health Department attended Mr Hegde's Pharmacy in March 2011 and after reviewing the pharmacy's dispensing records said he was satisfied with the pharmacy's actions in relation to cessation of compounding and dispensing of anabolics.
A notification was made by Fiona Stanton of the Board in respect of Ms Hamilton's and Mr Hegde's alleged conduct on 26 November 2014 (para 13 affidavit of Scott Anderson sworn 06.03.18). As part of that notification, Ms Stanton sent the Bateman Report to the Australia Health Practitioner Regulation Agency (AHPRA).
The notification made on 26 November 2014 was the first time that Ms Hamilton's and Mr Hegde's conduct the subject of these proceedings had been brought to the Board's attention.
The notifications were considered by the Board at a notifications committee meeting on 13 January 2015 (paragraph 6 affidavit of Emma Caddy sworn 06.02.18).
AHPRA appointed Scott Anderson as an investigator to investigate the conduct of Ms Hamilton and Mr Hegde on 14 January 2015 (para 7 affidavit of Emma Caddy sworn 06.02.18).
Between 14 February 2015 and 15 April 2015, Mr Anderson obtained documents relevant to the investigation of Ms Hamilton's and Mr Hegde's conduct from the Chief Pharmacist (paras 812 affidavit of Emma Caddy sworn 06.02.18).
On 6 August 2015, Sharon Gaby, AHPRA's Manager of Notifications at the time, wrote to Ms Hamilton providing her with a copy of the evidence obtained from the Chief Pharmacist and seeking her response to the allegations the subject of these proceedings (para 13 affidavit of Emma Caddy sworn 06.02.18).
In early August, Ms Hamilton and Mr Hegde received a letter from AHPRA dated 6 and 5 August 2015 respectively notifying them of an investigation into their dispensing of anabolic steroids at their pharmacies during the Period. The letters stated that on 13 January 2015 the Board had decided to investigate their conduct.
Ms Hamilton and Mr Hegde were asked to provide a written response to AHPRA by 26 August 2015, and were subsequently given an extension of time to respond to the complaint.
Ms Hamilton and Mr Hegde were subsequently provided with a copy of the Bateman Report.
Ms Hamilton provided as response to the AHPRA complaint by letter dated 4 September 2015.
Ms Hamilton wrote to AHPRA with her dispensing records and her response to the allegations on 4 September 2015 (para 15 affidavit of Emma Caddy sworn 06.02.18).
Mr Hegde wrote to AHPRA with his dispensing records and his response to the allegations on 18 September 2015 (para 13 affidavit of Emma Caddy sworn 06.02.18).
Mr Hegde provided a further response dated 7 December 2015.
AHPRA wrote to Ms Hamilton to advise her that its investigation was continuing on 6 November 2015, 17 February 2016, 1 June 2016 and 1 September 2016 (respectively paras 17, 18, 19 and 22 affidavit of Emma Caddy sworn 06.02.18).
AHPRA wrote to Mr Hegde to advise him that its investigation was continuing on 4 November 2015, 5 February 2016, 1 June 2016 and 1 September 2016 (respectively paras 14, 15, 16 and 19 affidavit of Emma Caddy sworn 06.02.18).
At a meeting of the Board held on 23 June 2016, Board decided to obtain an independent opinion (paras 17 and 20 affidavit of Emma Caddy sworn 06.02.18).
Between 3 August 2016 and 11 November 2016 AHPRA took steps to obtain an independent opinion from Liza Seubert (paras 1821 and 2327 affidavit of Emma Caddy sworn 06.02.18).
Ms Seubert's reports were provided to Ms Hamilton and Mr Hegde on 28 November 2016 (paras 25 and 28 affidavit of Emma Caddy sworn 06.02.18).
Meridian Lawyers provided AHPRA with Mr Hegde's response to Ms Seubert's reports on 9 December 2016 (para 26 affidavit of Emma Caddy sworn 06.02.18).
At a meeting of the Board's notifications committee on 15 December 2016 the notifications committee decided to recommended to the Board that Ms Hamilton's and Mr Hegde's conduct be referred to the Tribunal (para 27 and 29 affidavit of Emma Caddy sworn 06.02.18).
On 20 January 2017 the Board decided to refer Ms Hamilton's and Mr Hegde's conduct to the Tribunal (paras 28 and 30 affidavit of Emma Caddy sworn 06.02.18).
Ms Caddy informed Ms Hamilton's and Mr Hegde's solicitors of the Board's decision to refer Ms Hamilton's conduct to the Tribunal on 10 February 2017 (para 29 affidavit of Emma Caddy sworn 06.02.18) and these proceedings were commenced on 16 May 2017 (paras 30 and 31 affidavit of Emma Caddy sworn 06.02.18).
A mediation was listed for 14 July 2017 (paras 32 and 35 affidavit of Emma Caddy sworn 06.02.18) and subsequently delayed to 15 August 2017 at the request of Ms Hamilton and Mr Hegde (paras 26 and 39 affidavit of Emma Caddy sworn 06.02.18).
The mediation conducted on 15 August 2017 was concluded on the basis that Ms Hamilton and Mr Hegde would provide the Board with their without prejudice position prior to the Board's next meeting on 22 October 2017 (paras 40 and 42 affidavit Emma Caddy sworn 06.02.18).
Ms Hamilton's and Mr Hegde's application to strike out the proceedings was filed on 17 November 2018.
Delay
The respondents submitted:
a)The time period between the investigation into the Pharmacy and the creation of the PSB report on 26 June 2009, shortly after the Period of complaint, and the subsequent notification of the complaint to the respondent in August 2015 (more than six years) constitutes extraordinary delay.
b)There is no evidence to justify or excuse the delay.
c)The evidence the subject matter of the complaint was available from 2009.
d)The period of time from August 2015 until the filing of the application in May 2017 constitutes further significant delay and taken together with delay from June 2009 constitutes extraordinary delay which has not been explained.
e)There is no explanation of why it took so long to commence the application after the respondent had provided a response and after the PBA had received expert opinion from Liza Seubert in September 2016.
f)In the circumstances there has been an extraordinary overall delay in the sense of the period of time between the events the subject of the Application and the time taken to bring the Application, and an unexplained delay within that overall period.
The Board submitted:
a)The respondents assert that the substantive application to this Tribunal offends those principles in the following respects:
1)The period between the Board having first become aware of the relevant conduct and the commencement of the investigation of these matters amounts to an 'extraordinary delay'; and
2)The period between the Board investigating the relevant conduct and the commencement of these proceedings also amounts to a further 'unreasonable delay' on the part of the Board.
b)The respondents contend that the nature of these delays, together with the loss of evidence that the respondents contend would have assisted them, is such that she cannot adequately or fairly respond to the allegations that are the subject of these proceedings.
c)In response, the Board contends that the interim applications for a stay is misconceived because the respondents' applications rest on a fundamental error as to the time that the Board first became aware of the relevant misconduct. The evidence does not establish otherwise than that the Board only became aware of the relevant conduct of the respondents in November 2014.
d)The Board also contends that, in all of the circumstances of the case, the respondents have not been prejudiced in their defence of the applications. First, that is because the primary complaint against the respondents is that they failed to exercise their own independent professional judgment. Secondly, insofar as the allegations do concern a failure to maintain proper records, the absence of evidence that is purported to prejudice the respondents in all reality operates to assist them. That is, the only persons who can give evidence as to the records that were previously kept by the respondents is the respondents themselves.
e)The respondents' written submissions operate on a mistaken assumption that the Board has been aware of the respondents' conduct since 2009. The submissions of the respondents assert that this constitutes an 'extraordinary delay' and go on to complain that there is no explanation for this delay. Contrary to those submissions, there is no evidence of such a delay.
f)Fundamental to that mistake appears to be the belief that the Department of Health and the Board are connected in respect of the disciplinary functions performed by the Board, and that the audits conducted by the Department of Health are related to those functions.
g)The Board only became aware of the relevant misconduct in November 2014. In making the submission that the Board was aware of this conduct in 2009, the respondents overlook the following matters:
a)The evidence concerning the time at which the Board became aware of this conduct;
b)The fact that the Department of Health is a distinct and separate entity to the Board and its predecessor, the Pharmaceutical Council of Australia; and the fact that,
c)The Board was not in existence in 2009.
h)What follows from the above is that the submission that there has been an 'extraordinary delay' with the commencement of this investigation is misplaced due to it being founded upon an erroneous interpretation of the evidence as to when the Board became aware of the relevant misconduct. Accordingly, the submission that there has been an 'extraordinary delay' has not been made out.
i)The respondents submit that the length of the investigation and the delay in the commencement of these proceedings are further examples of an unreasonable delay on the part of the Board.
j)The Board undertook a lengthy investigation in the lead-up to the commencement of these proceedings. That investigation included the obtaining of documentary evidence, providing (in accordance with principles of natural justice/procedural fairness) the respondents with multiple opportunities to address the issues underlying these allegations (which they did) and finally, the obtaining of multiple expert reports from Ms Liza Seubert, which the Board relies upon as proof of these allegations.
k)Whilst it is acknowledged that there was, as a result of the need for a proper investigation to be carried out, and for appropriate processes to be undertaken by the Board, a period of delay between the period when that report was obtained in November 2014 and the commencement of these substantive proceedings, regard must be had to the steps that were required to be undertaken by the Board before these proceedings could be commenced, including the Board's obligations under the National Law. Likewise, the time taken to carry out those necessary steps must be considered in the context of the limited institutional resources of the Board.
l)The respondents' assertion that there has been an unreasonable delay between the commencement of the investigation into the relevant conduct and the commencement of these proceedings has not been made out. Importantly, there can be no assertion of prejudice arising from the time taken to commence these proceedings in these circumstances where the respondents were on notice that the investigation was ongoing.
Analysis
There was a long delay between the creation of the Bateman Report and the notification of the complaint to the respondents.
It is neither necessary nor desirable to speculate on why the Bateman Report was not sent to the Pharmaceutical Council of Western Australia or AHPRA.
However, given that AHPRA was not made aware of it until 2014, the delay between 2009 and 2014 cannot be attributed to AHPRA or the Board.
In the context of a consideration of extraordinary delay it is the conduct of the Board that is relevant.
The fact that neither AHPRA nor the Board or its predecessor was aware of the Bateman Report until 2014 means that the delay to that period was not extraordinary. The explanation for the failure of the Board to notify the respondents is that they did not know of the existence of the Report. Although the applications are in some respects simple, the fact that the Board's case required expert evidence means that the evidence gathering process was complex.
The respondents further argue that the period of time from August 2015 to May 2017 constituted further delay.
The period between August 2015 and May 2017 is evident from the chronology. The delay is explained by obtaining the report of Liza Seubert until September 2016. There was then further correspondence between the respondents' lawyers and AHPRA as set out above.
The Tribunal is not satisfied that there was extraordinary delay when the delay is assessed against the fact that the Board only became aware of the Bateman Report in 2014 and the steps taken by the Board, via AHPRA thereafter.
The Tribunal finds that there is evidence to justify the delay between becoming aware of the Bateman Report and the commencement of the applications. Of course it would have been desirable if AHPRA was able to act more quickly, but in the circumstances the delay is not extraordinary.
Prejudice
The respondents submitted:
1)Many of the documents created at the relevant time and during the Period are no longer available to the respondents due to the length of time that has elapsed since 2008, including records of the respondents' usual practice of making brief notes of telephone conversations with prescribing doctors if they had concerns regarding a prescription and they had called the doctor to discuss a patient and notes of discussions with patients regarding the dispensing of anabolic steroids.
2)Further it was also the respondents' usual practice to counsel patients to whom they dispensed anabolic steroids. The respondents are no longer able to recall what was said nor are they able to recall specific details about any of the patients.
3)On some occasions Ms Hamilton refused to dispense anabolic steroids to patients due to suspicion about abuse or redirection. She now is unable to recall details of those occurrences.
4)Liza Seubert opines about the need for a Pharmacist to enquire into the medical practitioner's authority to prescribe anabolic steroids to patients and the need for a Pharmacist to exercise professional judgment when dispensing anabolic steroids and goes on to criticise the respondents' actions in this regard. It is impossible for the respondents to now remember the specific steps taken by them as part of the exercise of their professional judgment at the relevant time in relation to each of the patients.
5)Liza Seubert opines further that the respondents should have questioned the number of patients presenting. The respondents recall with certainty that they did do this, but due to the passage of time cannot now recall the precise details of which patients they did that with or what they said to them on each occasion.
6)The respondents suffer similar prejudice in relation to Liza Seubert's opinion that the respondents did not make the care of the patients their first concern.
7)The opinion of Liza Seubert's that the respondents' discussions with prescribing doctors only touched the surface of their professional obligation to protect the public from harm through medicine use appears to be based on the respondents' written statements which were generalised statements made more than seven years after the Period. They were made at a time when they no longer had and now no longer have a specific recollection of what they did and said in relation to each patient in 2008 and 2009.
8)Memories of the events in issue will have faded on the part of the respondents and other relevant witnesses and the respondents cannot now be expected to recall how a particular patient presented or what precisely was asked by them of a patient or what discussions they had with a particular patient. The respondents' ability to refute allegations that they knew or ought to have known that the dispensing was not for a proper therapeutic purpose has become compromised.
9)Mr Hegde submitted that after his pharmacy was audited on numerous occasions and he was advised of those matters referred above he was entitled to assume that investigations into compounding and dispensing of anabolic steroids was at an end and would not be raised again.
10)Accordingly, the respondents will suffer prejudice from the significant delay.
The Board submitted:
a)The respondents depose in their affidavits in support of these applications that they cannot fairly address the allegations made in this case because it is impossible for them to recall each of their conversations with prescribing doctors and the conversations that they had with each patient and that, by reason of the delay in the commencement of these proceedings, they no longer have records of:
1)conversations they regularly had with treating Doctors to confirm the appropriateness of the treatment regimes concerning the prescription of anabolic steroids; and
2)conversations they regularly had with patients in which they would counsel them on the risks and potentially adverse effects of using anabolic steroids.
b)The effect of the respondents' complaint is that they cannot recall the exact details of what occurred in relation to each patient. It is not contended (for the purposes of these applications for a stay) that the Tribunal should act on any other basis.
c)The material that the respondents suggest would have assisted them in responding to the allegation that they failed to exercise professional judgment has not been made out. They have not provided any basis upon which the Tribunal could find that the material would have been relevant to any issue apart from the allegation that they failed to keep proper clinical records in relation to their discussions with patients.
d)In Jago v District Court of New South Wales (1989) 168 CLR 23, Deane J observed that 'the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case.' Those observations are important and undoubtedly apply in the context of this case.
e)On behalf of the Board, it would have to be conceded that the case against the respondents in relation to their failures to keep proper clinical records is not overwhelming. The only evidence in relation to this issue arises from the respondents themselves, whether it be their omission of what records they kept in their earlier statements to the Board or whether it be their assertion in the lead-up to the hearing of this matter that they kept detailed records. With respect, the absence of evidence in relation to this issue is hardly a matter that could be prejudicial to the respondents.
f)The respondents contend that the fact that they no longer has access to these records has meant that they will not be able to properly nor fairly address the allegations that form the subject of these proceedings.
g)In response, the Board contends that there is no prejudice arising from the lost documents because the material is irrelevant to the allegation that the respondents failed to exercise their own independent professional judgment by dispensing anabolic steroids in combinations that they knew or ought to have known were not for a therapeutic purpose and in quantities that they knew or ought to have known would create a risk to health, a risk of diversion into the community and a risk of physical or mental dependency; and
h)In response, the Board contends that there is no prejudice arising from the lost documents because:
1)In the main, the material is irrelevant to the allegation that the respondents failed to exercise their own independent professional judgment by dispensing anabolic steroids in combinations that they knew or ought to have known were not for a therapeutic purpose and in quantities that they knew or ought to have known would create a risk to health, a risk of diversion into the community and a risk of physical or mental dependency; and
2)Insofar as the records would have been relevant to them addressing the allegation that the respondents failed to keep proper records, the missing evidence in the context of these allegations is relevant, however, the fact that it is missing undoubtedly assists the respondents. That is, in the absence of those records, the respondents are the only persons who can give evidence as to what records were kept and what procedures they adopted when counselling patients.
i)The material that the respondents suggest would have assisted them in responding to the allegation that they failed to exercise professional judgment has not been made out. They have not provided any basis upon which the Tribunal could find that the material would have been relevant to any issue.
Analysis
It is not suggested that any of the dispensing records are missing. The basis of the prejudice is said to be the records of the conversations with dispensing doctors and patients are now lost.
Given the way the Board puts its case, the principal evidence that the Board will rely on is the dispensing records. The Board's case is based on these dispensing records. In terms of the Board's case whether the respondents had conversations with dispensing doctors and patients is largely irrelevant.
The Tribunal is not persuaded that the loss of records of conversations with dispensing doctors and patients will prejudice the respondents in meeting the case put against them by the Board. The Board's case is relevant on the dispensing records which are available. The hearings will not necessarily be unfair to the respondents.
General statements as to prejudice are not sufficient to discharge the heavy onus that lies on the respondents.
Public interest
The respondents submitted:
1)One of the fundamental purposes of professional disciplinary proceedings is the protection of the public. It can be inferred that the Medical Board and/or the Board itself determined over eight years ago that, in relation to the allegations or substantially similar allegations made in the Applications, at that time it was not necessary to take action against the respondents to protect the public.
2)The fact that no disciplinary proceedings were brought by the Board or the Medical Board since the Period until 2017 casts significant doubt on the need to take disciplinary proceedings for the protection of the public in relation to the respondents' conduct.
3)The Courts have considered the role of the public interest in determining which proceedings should be dismissed as an abuse of power.
4)The fact that nothing is presently occurring, or has recently occurred, in respect of which the public need protection from a claimant is a matter to be taken into account by the Tribunal. It is uncontroversial that the respondents are not alleged to have carried on any of the alleged conduct, the subject matter of the applications, since 30 April 2009. There is no public protection required.
5)Any need to send a message to the profession concerning the type of conduct alleged has already been sent by the Board and the Tribunal in its dealing with Mr Frank Balestra.
6)There is no public interest in allowing the matters raised in the applications to proceed.
7)Having not heard anything further after audits were carried out during the Period and after and having not heard anything further for a period of time after 2010, the respondents were entitled to consider and did consider any concerns previously looked at were at an end.
8)By reason of the all of the above, the respondents' ability to be able to properly and meaningfully defend serious charges of professional misconduct against them has been significantly compromised.
The Board submitted:
1)It is important to note from the outset that in order for the public interest to be a relevant issue, the respondents must first establish that there has been both an unreasonable delay on the part of the Board and that they would suffer prejudice as a result. If the Tribunal accepts the Board's submissions on these issues, then the public interest will be an irrelevant consideration.
2)It is otherwise the case, contrary to the respondents' submissions, that there is a strong public interest in the continuation of these proceedings. Whilst the respondents' conduct since the relevant period indicates a lesser need for specific deterrence, it does not negate the fundamental need for general deterrence of this type of conduct. The consequences of this type of misconduct, which is inherently difficult to detect, is highlighted by the fact that in this case, the doctors whom the respondents claim to have conferred with were disciplined in relation to their improper prescribing of anabolic steroids. What follows from these very serious failures is that pharmacists must appreciate that if they fail to carry out their practice independently and as a final check on prescribing doctors then they will be sanctioned accordingly.
Analysis
The Tribunal accepts that one of the fundamental purposes of professional disciplinary proceedings is to protect the public.
The Tribunal is concerned not only with the need to appropriately sanction the respondents, if in fact the allegations are proven against them, but to send a message to the wider pharmaceutical profession and the public that high standards of professionalism are required of pharmacists.
It cannot be said that it is in the public interest not to proceed with the proceedings.
In the case of Mr Hegde, the Tribunal does not accept that he was entitled to consider that any concerns previously looked at were at an end. That principle applies where there have been previous proceedings. There had been no previous proceedings.
Conclusion
The respondents' interim applications should be dismissed.
Order
1.The respondents' interim applications are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J CURTHOYS, PRESIDENT
18 SEPTEMBER 2018
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