PHARMACY BOARD OF AUSTRALIA and HEGDE
[2023] WASAT 109
•13 NOVEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION: PHARMACY BOARD OF AUSTRALIA and HEGDE [2023] WASAT 109
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
MS E PERRELLA, SESSIONAL MEMBER
HEARD: 18 SEPTEMBER 2023
DELIVERED : 13 NOVEMBER 2023
FILE NO/S: VR 96 of 2017
PHARMACY BOARD OF AUSTRALIA
Applicant
AND
CHETAN ANANT HEGDE
Respondent
Catchwords:
Vocational regulation - Pharmacist - Disciplinary proceedings - Professional misconduct - Factors relevant to penalty - Dispensing of anabolic androgenic steroids - Registration suspended for a period of two months
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 3(2)(a), s 4, s 5, s 6, s 196, s 196(1)(b)(iii), s 196(2), s 196(4)
Legal Profession Act 2008 (WA)
Result:
Practitioner reprimanded
Practitioner's registration suspended for a period of two months
Practitioner fined amount of $10,000
Category: B
Representation:
Counsel:
| Applicant | : | J McKenzie & E Caddy |
| Respondent | : | A P Hershowitz |
Solicitors:
| Applicant | : | Minter Ellison |
| Respondent | : | Meridian Lawyers (Perth) |
Case(s) referred to in decision(s):
Chen v Health Care Complaints Commission (2017) 95 NSWLR 334
Hamilton v Pharmacy Board of Australia [No 2] [2022] WASCA 155
Hegde v Pharmacy Board of Australia [2020] WASC 383
Hegde v Pharmacy Board of Australia [No 2] [2020] WASC 384
Khosa v Legal Professional Complaints Committee [2017] WASCA 192
Legal Profession Complaints Committee v Segler [2014] WASC 159
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Nadkarni v Medical Board of Australia [2022] WASCA 109
Panegyres v Medical Board of Australia [2020] WASCA 58
Pharmacy Board of Australia and Hamilton [2018] WASAT 95
Pharmacy Board of Australia and Nyoni [2018] WASAT 134 (S)
Singh v Medical Board of Australia [2019] WASCA 51
Young v Legal Profession Complaints Committee [2022] WASCA 52
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 7 August 2020, Mr Chetan Hegde (variously the Respondent or Mr Hegde), a pharmacist, was found guilty of professional misconduct as defined in s 5 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law) by a differently constituted Tribunal which also imposed a penalty pursuant to s 196(2) of the National Law.[1]
[1] Order 1 of the Orders made on 7 August 2020.
That finding of professional misconduct was made after the parties had filed an Agreed Statement of Facts and Findings on 1 July 2019 (Agreed Facts and Findings) that addressed the Respondent's liability for his conduct.[2]
[2] The Agreed Facts and Findings were Annexure A to orders made on 3 July 2019.
Following an appeal to the Supreme Court,[3] the orders relating to penalty were set aside and an order was made that the question of penalty be remitted for hearing and determination according to law by the Tribunal differently constituted.[4]
[3] Hegde v Pharmacy Board of Australia [2020] WASC 383 (Hegde Appeal Decision).
[4] Supreme Court Orders dated 23 October 2020.
This matter concerns the penalty to be imposed in response to Mr Hegde's professional misconduct.
Mr Hegde's professional misconduct was that he:
(1)engaged in the practice of dispensing anabolic androgenic steroids to patients for the purpose which he ought to have known did not accord with recognised therapeutic standards;
(2)engaged in the practice of dispensing anabolic androgenic steroids to patients in quantities and/or in combinations which he ought to have known were not necessary for any proper therapeutic purpose, and were likely to constitute an unacceptable hazard to the health of patients and/or others to whom those drugs could be on-sold, and had the potential for misuse, abuse or psychological and/or physical dependency;
(3)engaged in the practice of dispensing anabolic androgenic steroids to patients by dispensing repeat authorisations and/or multiple prescriptions in the same transactions or in separate transactions conducted significantly within the period in which the medication would have been consumed if taken at the usual dose, when he ought to have known those quantities and/or combinations of the drugs supplied was likely to constitute an unacceptable hazard to the health of patients or others to whom those drugs could be on-sold and had the potential for misuse and abuse and/or physical dependency; and
(4)failed to make any adequate clinical notes in relation to discussions with patients counselling them in the use of anabolic androgenic steroids and/or the physical condition of the patients to whom he typically dispensed androgenic steroids.
Outcome
For the reasons which follow, we find that although the professional misconduct was serious, in the highly unusual circumstances of this case, to which we refer below, the appropriate penalty to be imposed today is:
(1)a reprimand;
(2)the suspension of Mr Hegde's registration for a period of two months; and
(3)the imposition of a fine of $10,000.
Materials before this Tribunal
In determining the question of penalty, the parties agreed that we would have had regard to the following material:
(1)The Agreed Facts and Findings (Exhibit A);
(2)The reports of Dr Seubert dated 9 September 2016 (Exhibit B1) and 17 October 2016 (Exhibit B2);
(3)Mr Hegde's witness statements dated 12 April 2021 (Exhibit C1) and 30 August 2023 (Exhibit C2)[5];
[5] Leave was given on 18 September 2023 for the Respondent to rely on the witness statement as amended by agreement of the parties on 18 September 2023. It was then exhibited as C2.
(4)18 character references filed by Mr Hegde (Exhibit D); and
(5)A copy of a report from WAtoday dated 9 April 2021 entitled 'Perth pharmacist struck off register over misconduct in dispensing steroids' (Exhibit E).
(6)The following documents filed by the Pharmacy Board of Australia (Applicant):
(a)Submissions in respect of sanction dated 12 August 2021;
(b)Supplementary submissions in respect of penalty dated 23 February 2023; and
(c)Proposed conditions to be imposed on Mr Hegde's registration following the expiry of any period of suspension that may be imposed by way of penalty.[6]
[6] The Applicants filed proposed conditions on 16 November 2021 but refiled them on 18 September 2023 as Applicant's Minute of Proposed Conditions (originally filed on 16 November 2021).
(7)The following documents filed by the Respondent:
(a)Outline of submissions for penalty hearing on 20 September 2019 dated 19 September 2019;
(b)Respondent's submissions concerning proposed conditions dated 22 November 2021;
(c)Supplementary submissions in respect of penalty dated 20 March 2023; and
(d)Further submissions in respect of penalty dated 30 August 2023; and
(e)Further submissions regarding Applicant's proposed conditions refiled 18 September 2023; dated 21 September 2023.
(8)The transcript of the hearing on 16 November 2021.
The National Law
Before turning to the particular issues that arise in this case, it is necessary to set out the relevant provisions of the National Law.
Section 196 of the National Law sets out the range of sanctions that may be imposed on a health practitioner.
The Tribunal is a 'responsible tribunal' for Western Australia for the purposes of the National Law.[7]
[7] Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law), s 6; Panegyres v Medical Board of Australia[2020] WASCA 58 (Panegyres) at [137] (Vaughan JA).
As set out in the Agreed Facts and Findings, the Respondent accepts that he engaged in 'professional misconduct' for the purposes of s 196(1)(b)(iii) of the National Law.
Pursuant to s 5 of the National Law, 'professional misconduct' of a registered health practitioner includes -
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Pursuant to s 196(2) of the National Law, the Tribunal may decide to do one or more of the following:
…
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration, including, for example -
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)a condition requiring the practitioner to manage his practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
If the Tribunal decides to impose a condition on the Respondent's registration, we must also decide a review period for the condition.[8]
[8] National Law s 196(3).
If the Tribunal decides to cancel the Respondent's registration, we may also decide to either:
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b)prohibit the person, either permanently or for a stated period, from either:
(i)providing any health service or a specified health service; or
(ii)using any title or a specified title.[9]
[9] National Law s 196(4).
An entity with functions under the National Law, such as the Tribunal, is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme.
Section 3(2)(a) of the National Law includes the following objective:
to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered[.]
Purpose of disciplinary penalty and principles in relation to disciplinary sanctions
As the Court of Appeal stated in Singh v Medical Board of Australia (Singh Appeal),[10] the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law, although disciplinary orders may nevertheless have elements in common with criminal sanctions.
[10] Singh v Medical Board of Australia [2019] WASCA 51 (Singh Appeal) at [30].
It was also acknowledged in that case that that the protection of the public has various dimensions. They include:[11]
(1)the need to protect the public by preventing the practitioner from practising;
(2)the need to bring home to the practitioner the seriousness of their conduct;
(3)the need to deter the practitioner from future breaches;
(4)reassuring the public that a certain type of behaviour is not acceptable professional conduct; and
(5)signalling to other members of the profession that a certain type of behaviour is not acceptable professional conduct.
[11] Singh Appeal at [32].
As the purpose of disciplinary proceedings is to ensure the protection of the public, the impact which a penalty will have on a practitioner who has been found to have committed professional misconduct is necessarily a secondary consideration. As such, the personal circumstances of the practitioner, although relevant, carry less weight and may not override the Tribunal's obligation to make orders which secure the protection of the public.[12]
[12] Singh Appeal at [33]. (Quinlan C J and Pritchard J A).
The findings of misconduct which are made in any particular case will be of particular significance in determining whether the practitioner is unfit to practice their profession. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and engaging the power of suspension or cancellation of a practitioner's registration.
As Basten JA stated in Chen v Health Care Complaints Commission:[13]
Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.
[13] Chen v Health Care Complaints Commission (2017) 95 NSWLR 334 at [20].
While, unlike the position under s 196 of the National Law, there is no power to strike off a practitioner reposed in the Tribunal under the Legal Profession Act (2008) (WA) (LP Act), the Court of Appeal in the Singh Appeal[14] endorsed as applicable by way of analogy, in a qualified way, the following statements made by Murphy and Beech JJA in the Court of Appeal in Khosa v Legal Professional Complaints Committee:[15]
In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'. Where, however, the present unfitness to practise reveals that the practitioner lacks the character of trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response. (Footnotes omitted)
[14] Singh Appeal at [34 - [35]. (Quinlan C J and Pritchard J A).
[15] Khosa v Legal Professional Complaints Committee [2017] WASCA 192 (Khosa) at [191] – [192].
Permanent unfitness to practise will be a sufficient basis for cancelling a practitioner's registration. But that is not the only basis upon which registration may be cancelled. That is, permanent unfitness to practise is not a precondition to the exercise of the power to cancel a practitioner's registration.[16]
[16] Singh Appeal at [37] - [38]. (Quinlan C J and Pritchard J A).
Where, applying the National Law, the Tribunal cancels a practitioner's registration it must also set a period of time within which the practitioner may not seek to be re-registered. In this way, the Tribunal signals the minimum period within which it considers that the practitioner may not practise their profession and also leaves open the possibility that an application for re-registration after that time will be considered.
The weight which is given to the considerations which are relevant to its exercise of discretion under s 196 is a matter for the Tribunal.
In Medical Board of Australia and Singh,[17] the Tribunal identified 12 factors which were relevant to penalty in disciplinary cases of this kind. Although, not expressly endorsed by the Court of Appeal in the Singh Appeal that followed the Tribunal's decision, neither were they the subject of any criticism and we would respectfully adopt them as a useful reference point for matters relevant to penalty in this case. Those factors are:
[17] Medical Board of Australia and Singh [2017] WASAT 33 (S) at [30].
(1)The need to protect the public against further misconduct by the practitioner.
(2)The need to protect the public through general deterrence of other practitioners from similar conduct.
(3)The need to protect the public and maintain confidence in the profession by reinforcing high professional standards and denouncing transgressions and, thereby, articulating the high standards expected of the profession even when there is no need to deter the practitioner from repeating the conduct.
(4)In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.
(5)Whether the practitioner has breached any:
(a)Act;
(b)Regulations; and
(c)Guidelines or Code of Conduct issued by the relevant professional body; and if so, whether the practitioner has done so knowingly.
(6)Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
(7)Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future.
(8)The practitioner's disciplinary history.
(9)Insight and remorse (or lack thereof) since a practitioner who fails to understand the significance and consequence of misconduct is a risk to the community.
(10)The desirability of making available to the public any special skills possessed by the practitioner.
(11)The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. Although, the weight given to personal circumstances cannot override the fundamental obligation to provide appropriate protection of the public interest in the honesty and integrity of practitioners and the maintenance of proper standards of practice.
(12)Other matters relevant to the practitioner's fitness to practise and aggravating or mitigating factors although, in general, mitigating factors carry considerably less significance than in the criminal process because the jurisdiction is protective not punitive.
Time at which sanction is to be assessed
The appropriate disciplinary sanction is to be assessed at the time the sanction is imposed and not by reference to the date of the misconduct.[18]
[18]Legal Profession Complaints Committee v Segler [2014] WASC 159 at [7].
The unusual circumstances of this case - chronology
We are satisfied and find that Mr Hegde is to be disciplined having regard to the following factual context, which is highly unusual.
The conduct for which Mr Hegde is to be disciplined occurred between 1 January 2008 to 30 April 2009, nearly 15 years ago now.
During that time, Mr Hegde was audited by the Health Department and no concerns were raised with him about his dispensing practices.[19]
[19] Exhibit C2, para 30.
Of his own accord and before any disciplinary proceedings had been commenced, in 2010, Mr Hegde ceased compounding anabolic androgenic steroids and limited the dispensing of anabolic steroids that were being prescribed.[20]
[20] A matter conceded by the Board: Hegde v Pharmacy Board of Australia [No 2] [2020] WASC 384 at [23].
An investigation report (the Bateman Report) was prepared on 26 June 2009. It raised questions about the prescribing of steroids by several doctors and the dispensing by Ms Hamilton and Mr Hegde. The investigation report was originally provided only to the Medical Board of Western Australia. The applicant only became aware of the investigation report on 26 November 2014.[21]
[21] Pharmacy Board of Australia and Hamilton [2018] WASAT 95 at [15] and [25].
On 16 May 2017, the matter was referred to the Tribunal.
The parties reached agreement as to the facts, which was reflected in the Agreed Facts and Findings and a hearing was held in relation to penalty on 7 August 2020. The Tribunal made orders finding Mr Hegde guilty of professional misconduct. It is also ordered that Mr Hegde be reprimanded and his registration as a pharmacist be cancelled, and he was disqualified from reapplying for registration for a period of three years.[22]
[22] Orders made 7 August 2020.
On 23 October 2020, the penalty imposed by the Tribunal was set aside on appeal and the matter was remitted for determination by a differently constituted Tribunal.[23] Therefore, Mr Hegde was unable to practice as a pharmacist while his licence was suspended for a period of two and a half months. Apart from that time, Mr Hegde has been registered and has worked as a pharmacist.
[23] Hegde v Pharmacy Board of Australia [No 2] [2020] WASC 384 at [157].
A second, differently constituted Tribunal held a hearing in relation to penalty on 16 November 2021, but ultimately was unable to conclude the matter. The President reconstituted the Tribunal, and the matter was heard by us on 18 September 2023.
As is apparent, the conduct occurred many years ago. The Respondent referred to the case of Young v Legal Profession Complaints Committee (Young)[24] to identify for the Tribunal how we could have regard to that 'delay'. Young was a case involving delay in progressing the proceedings. Mr Hegde's case is not really a case where delay in that pejorative sense has occurred. Rather, this case involves the effluxion of time none of which can really be said to have been caused, unreasonably by one party or the other. While that case involved disciplinary proceedings under the LP Act rather than the National Law, the statements made by the Court about the effects of delay are, in our view, equally apposite in the case of disciplinary proceedings under the National Law and in Mr Hege's particular case where we are not dealing with 'delay' as such, but rather the effect of the passing of a very significant period of time. They were:[25]
[24] Young v Legal Profession Complaints Committee [2022] WASCA 52 (Young).
[25] Young at [241] - [246] (Buss P); [28] - [29] (Quinlan CJ and Beech JA).
(1)Delay will not of itself mitigate the appropriate penalty.
(2)Delay will not ordinarily be mitigating if the delay has been caused by difficulty detecting, investigating or proving the relevant professional misconduct or unsatisfactory professional conduct, and the period of delay is reasonable in the circumstances.
(3)Delay will not ordinarily be mitigating if the delay has been caused by the practitioner's obstruction or absence of cooperation with the Committee.
(4)Delay will not ordinarily be mitigating if it results from the ordinary operation of proceedings in the Tribunal, including delay as a result of the reasonable exercise by the Committee or practitioner of their legal rights.
(5)Delay may be conducive to the emergence of mitigating factors; for example, if during the period of delay, the practitioner has been rehabilitated or has made progress towards rehabilitation, or if other circumstances favourable to the practitioner have emerged. In those circumstances, the need for the protection of the public and the importance of personal deterrence will ordinarily be reduced.
(6)Delay (not being delay of the kind in 2, 3 and 4 above) will ordinarily be mitigating if:
(a)The delay has caused significant stress for the practitioner or has left the practitioner to a significant degree, in 'uncertain suspense' and in consequence the need for the protection of the public and the importance for personal deterrence are reduced; or
(b)During the period of delay, the practitioner had a reasonable expectation that the complaint would not be progressed or the subject of proceedings, and the practitioner ordered his or her affairs on the faith of that expectation.
General findings regarding Mr Hegde
We are satisfied as to, and make, the following findings in relation to Mr Hegde.
Mr Hegde was first registered as a pharmacist on 2 February 2000.[26]
[26] Exhibit A, para 4.
Mr Hegde was, at the time of the professional misconduct, and remains, the registered owner of and pharmacist with overall responsibility for the following pharmacies:[27]
(1)Priceline Pharmacy Beaumaris, which he has owned and been responsible for this pharmacy since 2000; and
(2)Priceline Pharmacy Mt Lawley (formerly McKenzie's Pharmacy) which he has owned since 2003.
[27] Exhibit C2, paras 4 – 6.
Character references
Mr Hegde provided the Tribunal with 18 character references.[28] All of the references were prepared for use in the Tribunal in 2021, and there is no indication as to whether or not each referee today remains of that view previously expressed about Mr Hegde's character. Nevertheless, we have proceeded on the basis that the statements remain accurate as we have no indication that they are not, and the Applicant did not object to their use. Each reference says that the referee regards Mr Hegde to be, in our words, a person who cares about his customers. Many of them speak about his positive interactions with customers and staff at his pharmacies. Some of them speak of his involvement in his community through, for example, the Rotary Club.
[28] Exhibit D.
Nine of the references which refer to the referee's opinion of Mr Hegde as a person of good moral character do not indicate that they are aware of the finding of professional misconduct or the purpose for which the reference is being given and are addressed 'to whom it may concern'[29]. We have given those references very little weight.
[29] They are the references of K R Subrahmanya Bhat (11 April 2021); Geoff Russel (12 April 2021); Prakash K Shrivastava (12 April 2021); Eryk Matusik (6 April 2021); William Stace (undated); Wendy and Adam Michetti (undated); H.J. Clements-Shepherd (9 April 2021); Vivian NG (9 April 2021); and Scott Hunter (undated) in Exhibit D.
The remaining references, which indicate that their author is aware of Mr Hegde's misconduct, carry more weight because the observations about his character are then made in light of the knowledge of the misconduct. The authors of those references say that they are aware of Mr Hegde's 'situation' and believe that he is remorseful and that the behaviour, which they observe, is now well in the past, is not in line with the character and attitudes of the person they have come to know.[30]
[30] They are the references of William Letendre (6 April 2021); Simon Theobald (undated); Rob Myer (10 April 2021); Noel Partridge (undated); George Salib (14 April 2021); Bobby Kular (12 April 2021); Shridhar Bhat (undated); Allan Leslie (28 April 2021); and Dr Harris Greenberg (26 April 2021) in Exhibit D.
Application of factors to the present case
We turn then to consider the application of each of the factors which were identified in Singh to Mr Hegde's case.
The need to protect the public from further acts of misconduct by the Respondent
Mr Hegde's misconduct occurred in the period 1 January 2008 until 30 April 2009. As we have already observed, that is nearly 15 years ago now.
Apart from a period when the Tribunal's cancellation of Mr Hegde's registration was operative before being set aside on appeal, it is accepted, and we find, that Mr Hegde has held registration as a pharmacist since 2 February 2000.
It is also accepted, and we find, that other than one complaint which was made to the Pharmacy Council of Australia but which was determined not to relate to his performance of conduct as a pharmacist and was instead an issue between an employee and employer, he has practised without any other disciplinary matters being raised.[31]
[31] Exhibit C1, paras 7 – 9.
Further, Mr Hegde stated in his witness statement of 30 August 2023, and we accept, that he has undertaken many professional development courses in 2023 in order to ensure that his understanding of his professional obligations are up to date and that his dispensing practices are up to date.[32]
[32] Exhibit C2, paras 5 – 6 and Annexure CH1.
Mr Hegde said in his witness statement, and we accept, that he has undertaken ethics courses that he has not been obliged to undertake in order to endeavour to ensure that he has a full understanding and appreciation of all aspects of his professional obligations in respect of dispensing. He said he has tried to ensure that his knowledge of professional ethics and dispensing practices has improved and continues to be improved.[33] That evidence was unchallenged and we accept it and so find.
[33] Exhibit C2, para 6.
We are satisfied, and we find, that Mr Hegde ceased compounding anabolic androgenic steroids and otherwise reduced his dispensing of steroids on his own accord in 2010.
Further, Mr Hegde, his counsellor Ms Edwards and some of his referees have said, and we are satisfied and find, that he is remorseful for his past conduct.[34]
[34] Exhibit C2, paras 25 – 28, Annexure CH2; They are the references of William Letendre (6 April 2021); Simon Theobald (undated); Rob Myer (10 April 2021); Noel Partridge (undated); George Salib (14 April 2021); Bobby Kular (12 April 2021); Shridhar Bhat (undated); Allan Leslie (28 April 2021); and Dr Harris Greenberg (26 April 2021) in Exhibit D.
It follows from those matters that, given that Mr Hegde's misconduct occurred so long ago, he both ceased compounding steroids and reduced his dispensing of steroids on his own accord, that he has practiced without incident in the years since, and is remorseful for the conduct for which the penalty is to be imposed. Having regard to what was said in Young about rehabilitation to which we referred at [38(5)], we do not regard personal deterrence to be a major component of the penalty to be imposed in this case.
The need to protect the public through general deterrence of other practitioners from similar conduct
The Applicant submits, and we accept, that the need for general deterrence is not confined to deterring others from dispensing against a background of actual knowledge of the lack of therapeutic indication, risks of harm and risks of on-selling. That is, we accept that there is a need to impress upon other pharmacists that they cannot be ignorant of such matters and that it is unacceptable to dispense drugs repeatedly, and in large quantities and in combinations without knowing about therapeutic indications, risks to health, and risks of abuse and on-selling of those drugs.
Generally speaking, it is important to achieve the disciplinary purpose of the protection of the public that the penalty imposed for professional misconduct deter others from similar conduct and in this specific case by impressing on pharmacists that they cannot dispense without the knowledge referred to in [54] above without risk of sanction.
However, there may well be occasions where, for whatever reason, a particular individual is not an appropriate case for general deterrence or where the penalty is mitigated because the aspect of the requirement for general deterrence is reduced.
In our view, this is one such occasion because the circumstances in which the penalty are to be imposed are so unusual. Put another way, given the extraordinary amount of time which has elapsed since the misconduct occurred, and even the amount of time since the proceedings were commenced, and given the rehabilitation that is evident, it is our view that the importance of this case as a general deterrent to others is reduced.
In any event, we also consider that general deterrence has been achieved, in part, by the publication of the original sanction which was imposed on Mr Hegde which attracted publicity at the time.[35] We accept the evidence in Mr Hegde's witness statement of 30 August 2023[36] that the setting aside of the penalty imposed on 7 August 2020 did not attract publicity[37] and that there remains an impression in members of the public that that penalty is extant. Mr Hegde said in his witness statement of 30 August 2023, and we accept, that he has encountered several customers while he has been working who have expressed surprise that he was doing so because they had heard he had been 'rubbed out'.[38] He said, and we find, that this has also occurred with some colleagues.[39]
[35] Exhibit C2, para 9.
[36] Exhibit C2, para 14.
[37] Exhibit C2, para 13.
[38] Exhibit C2, para 14.
[39] Exhibit C2, para 15.
The Applicant submits that a penalty of less than a disqualification or significant period of suspension would not have the necessary deterrent effect because:
1)this kind of dispensing is difficult to detect because the people seeking to have the steroids dispensed to them are highly unlikely to complain about the dispensing and because the prescriptions are generally not covered by the Pharmaceutical Benefits Scheme and, hence, not readily apparent to the relevant authorities; and
2)there is significant financial incentive to engage in the improper dispensing of anabolic steroids from which pharmacists who may be tempted to do the wrong thing will not be deterred by a penalty less than suspension of their registration.
While we accept that dispensing of anabolic steroids is difficult to detect and that there may be a financial incentive to some to dispense them improperly, we are also satisfied that general deterrence could be achieved in an appropriate case by a sanction of less than disqualification or suspension of a practitioner's registration.
In this case, we consider that the issue of the protection of the public through general deterrence of other practitioners from similar conduct is a significant factor in determining the penalty to be imposed in Mr Hegde's case.
The need to protect the public and maintain confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession even when there is no need to deter the practitioner from repeating the conduct
This factor is an important aspect of the penalty to be imposed and is, in our view, closely related to the issue of general deterrence. The comments we have made in relation to that issue above are relevant to the consideration of this issue.
In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner
In this case, we are not concerned with misleading conduct, and this is not a relevant factor in the consideration of the penalty to be imposed in relation to Mr Hegde's misconduct.
Whether the practitioner has breached any Act, Regulations, Code or Guidelines
The professional misconduct in which Mr Hegde engaged involved the breach of the 1998 Code of Professional Conduct clause 1.3 and the July 2008 Code of Ethics clause 2.8.[40]
Whether the practitioner's conduct demonstrated incompetence, and if so, to what level
[40] Exhibit A, paras 7, 8 and 14.
There is no allegation made that Mr Hegde's dispensing of the anabolic androgenic steroids demonstrated incompetence on his part. It is also not said that his failure to make any adequate clinical notes of discussions with patients counselling them on the use of the prescribed steroids or on the physical condition of the patients to whom they were dispensed demonstrated any incompetence on his part.
Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future
The dispensing was not a one-off. The dispensing was a pattern of dispensing in which Mr Hegde engaged during the relevant period. It involved dispensing to many patients. In one respect, it cannot therefore be regarded as a one-off or isolated incident of professional misconduct.
Nor can it be said that the conduct occurred only on one day or over a very short period of time, given it persisted from 1 January 2008 to 30 April 2009.
However, when regard is had to the period of time in which Mr Hegde has been practising as a pharmacist, both before and after the relevant period, it can be said that the incident occurred for a relatively short period of time during a long period of practice.
We are satisfied, based on Mr Hegde's evidence and the many character references provided in support of Mr Hegde, that he is very unlikely to repeat this conduct and, when regard is also had to his insight, remorse and subsequent 15 years of practice without incident, we consider that he can be relied upon to practice in accordance with the high standard expected of pharmacists in the future.
The practitioner's disciplinary history
As we have found at [48], apart from the professional misconduct for which Mr Hegde is to be disciplined, he has had no other disciplinary findings made against him.
Insight and remorse (or lack thereof) since a practitioner who fails to understand the significance and consequence of misconduct is a risk to the community
We are satisfied, and find, that Mr Hegde is remorseful for the professional misconduct for which he is to be sanctioned.
In his witness statement of 30 August 2023,[41] Mr Hegde says he is deeply remorseful and regrets the dispensing misconduct in which he participated. He says that he realises that he conducted himself in a way that was 'entirely wrong', was 'extremely serious and 'was unacceptable in all respects', and that he accepts full responsibility for that misconduct. He said that his conduct was unprofessional, he let down both the profession and the public, and he is ashamed of and horrified by his behaviour.[42]
[41] Exhibit C2.
[42] Exhibit C2 paras 25 – 28 and para 30.
Further, we regard the fact that Mr Hegde admitted the professional misconduct to be an indication of insight and remorse even though it is accepted that the admissions were not made at the very earliest opportunity.[43]
[43] Respondent's Outline of Submissions for Penalty Hearing on 16 November 2021 dated 28 September 2021 para 32.
Additionally, the report of Ms Edwards, Mr Hegde's counsellor, indicates that she has observed that Mr Hegde has reflected deeply on his actions, and that he is 'profoundly remorseful'.[44] We accept that as evidence of remorse.
[44] Annexure CH2 to Exhibit C2.
It is said against Mr Hegde that he lacks insight into the reasons for his misconduct. He says because the conduct occurred so long ago, it is very difficult for him now to pinpoint the triggers or motivation behind it.[45] However, whatever the motivation for the dispensing, we are satisfied and find that the fact that, of his own volition and in advance of the investigation into his conduct, Mr Hegde had taken steps in 2010 to change his dispensing practices of anabolic androgenic steroids because he had come to the realisation that his practices had not been what they should have been, was a demonstration of insight. We have had regard to that insight in determining the appropriate penalty in this case.
The desirability of making available to the public any special skills possessed by the practitioner
[45] Exhibit C2, para 29.
It is not said that Mr Hegde possesses any special or rare skills that should be made available to the public that would prevent us from imposing what we would otherwise regard as the appropriate disciplinary sanction in this case.
The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. Although, the weight given to personal circumstances cannot override the fundamental obligation to provide appropriate protection of the public interest in the honesty and integrity of practitioners and the maintenance of proper standards of practice
The personal circumstances of an individual who comes to be disciplined under the National Law will generally carry less weight than the seriousness of the misconduct and the need for the protection of the public by the imposition of a penalty that reflects that seriousness.
That notwithstanding, Mr Hegde's personal circumstances are relevant considerations.
We have already referred to some of those circumstances at [29] - [38].
It was submitted that we should find that at the time the professional misconduct occurred, Mr Hegde was a relatively inexperienced pharmacist.
The Applicant submitted that we could not make that finding because Mr Hegde owned a pharmacy at the time.
Mr Hegde had been registered for approximately eight years at the time the misconduct occurred. It is also true that he had owned a pharmacy since the earliest days of his career.
The Applicant informed us, in response to our question about the issue, that ownership of a pharmacy did not require any particular years of registration or experience as a pharmacist. From that, we understand the position to be that an inexperienced pharmacist could own a pharmacy.
Whatever the case, we find that a pharmacist with eight years' experience cannot be regarded as inexperienced or even relatively inexperienced. However, we do not find that he was highly experienced at the time of the misconduct.
Mr Hegde's evidence is that the fact that this matter has been ongoing since 2019 is a factor that should be taken into account in mitigation because he has, over that time, suffered considerable stress which has taken a toll on his mental health and on his personal relationships.[46] The evidence which we accept is that he has, of recent times, consulted with Ms Edwards who he said had been recommended to him as a counsellor to assist him with his emotional state.[47]
[46] Exhibit C2 para 19.
[47] Exhibit C2 paras 17 and 22 and Annexure CH2.
While the Respondent accepts that Ms Edwards is not a registered psychologist and is more in the nature of a life or business coach, we nevertheless accept Mr Hegde's evidence and find that he has suffered significant stress as a result of the length of time this matter has taken to resolve, and has taken steps to seek help from a third party to deal with that stress and its impact on him.
Mr Hegde also says that because the matter has been unresolved for so long, it has impeded his professional ambitions in that the uncertainty over his continued entitlement to practice has caused him to place on hold certain aspirations he has for professional progression and for the development of his business plans.[48] We are satisfied and find this to be the case.
[48] Exhibit C2, paras 18 and 20.
In the determination of the appropriate penalty to be imposed in this case we have had regard to the impact the delay in the resolution of this matter has had on Mr Hegde's mental well-being and business plans.
Other matters relevant to the practitioner's fitness to practise and aggravating or mitigating factors although, in general, mitigating factors carry considerably less significance than in the criminal process because the jurisdiction is protective not punitive
There is nothing to which we have had regard in respect of this factor.
Seriousness of the misconduct
In the Agreed Facts and Findings, the parties agreed on the reasons why people may seek to use anabolic androgenic steroids, on the fact that they can be on-sold by patients who obtain them on prescription and on the potential adverse side effects of anabolic androgenic steroids or excessive or prolonged use of anabolic androgenic steroids.[49] They were also referred to by Quinlan CJ in his Honour's reasons for decision in the Hegde Appeal Decision.[50] Other than to say that the potential side effects are numerous and significant, we do not need to repeat those matters in these reasons.
[49] Exhibit A, paras 11 and 12.
[50] Hegde Appeal Decision at [14] and [15].
The Applicant submits, and we accept, that it is the serious nature of those risks, combined with the ready market for the drugs and the financial rewards for practitioners who prescribe and dispense them in satisfaction of that demand that is of fundamental importance to the determination of penalty in cases involving a sustained and intensive practice of inappropriately prescribing or dispensing the drugs.
It follows from the fact that the prescribing, for which Mr Hegde is to be disciplined, took place over 16 months and involved the dispensing to numerous patients, and the supplying of the anabolic androgenic steroids on many occasions, that Mr Hegde's conduct was serious.
Penalties in comparable cases
The determination of the penalty to be imposed in this case was deferred while the Court of Appeal was considering the decision in Hamilton v Pharmacy Board of Australia [No 2][51] (Hamilton). Following the delivery of the Court of Appeal's decision in that case, the President of the Tribunal made orders permitting the parties to address issues which she had raised about the implication of that decision on the Mr Hegde's case.
[51] Hamilton v Pharmacy Board of Australia [No 2] [2022] WASCA 155.
Both the Applicant and the Respondent have made comprehensive written and oral submissions about the implications of the decision in Hamilton on the penalty to be imposed in that this case.
The Applicant and the Respondent have also filed detailed submissions setting out penalties which have been imposed in other cases and highlighting the similarities and differences between them and Mr Hegde's case.
Before considering those cases, it is important to note that the penalty in each case must be determined having regard to the purpose for which it is to be imposed, the circumstances involved in the professional misconduct and the individual circumstances of the practitioner. It is axiomatic that there is no tariff for this kind of behaviour[52] because so much will depend on the whole of the circumstances.
[52] Jemielita v The Medical Board of Western Australia [1994] WASC 623 at page 9 (Rowland J).
In Hamilton, the Court of Appeal upheld the pharmacist's appeal, set aside the penalty of suspension of her registration for a period of 30 months and, instead, imposed a suspension of the practitioner's registration for a period of 12 months.
The Applicant submits that the misconduct in which Mr Hegde engaged was more serious than that involved in Hamilton and, by implication, the penalty which should be imposed in this case should be greater than 12 months suspension.
We do not accept that characterisation. Ms Hamilton was involved in body building and her misconduct involved dispensing anabolic androgenic steroids to patients for a purpose which Ms Hamilton expressly knew did not accord with recognised therapeutic standards and which she knew she was dispensing in quantities and/or in combinations which had the potential for misuse and abuse. In this case, Mr Hegde was found to have been dispensing in circumstances in which he ought to have known did not accord with recognised therapeutic standards, and that he was dispensing in quantities and/or combinations which he ought to have known had the potential for misuse and abuse. In our view, the absence of express knowledge of those matters in Mr Hegde's case lessens the seriousness of his conduct.
Additionally, the Court of Appeal found that in Ms Hamilton's case, it was a serious aggravating factor that she was motivated by financial gain. That is also not said against Mr Hegde, and decreases the seriousness of the conduct.
The Applicant also pointed the Court of Appeal's decision in Nadkarni v Medical Board of Australia[53] as a recent example of a penalty for conduct involving the prescribing of medications, including steroids, without therapeutic indication. In that case, the Court of Appeal set aside the suspension of Dr Nadkarni's registration for a period of 20 months and imposed a suspension of 8 months.
[53] Nadkarni v Medical Board of Australia [2022] WASCA 109.
It is important to note that in Hamilton, the Court of Appeal held that Ms Hamilton's conduct was less serious than that of Dr Nadkarni.[54] Although the Applicant sought to explain, by detailed analysis of the facts of each of those cases, why that conclusion did not bear scrutiny, we are bound by that decision.
[54] Hamilton at [106].
In Hamilton, the Court also identified other cases which involved similar conduct and the penalties imposed.[55] We have had regard to that very helpful analysis which we adopt without repeating.
[55] Hamilton, Schedule commencing at page 57.
The penalty to be imposed
The parties both submit that a global penalty is appropriate given the misconduct can be regarded as a course of conduct, rather than separate and distinct instances of misconduct.[56] We agree that a global penalty is appropriate. The penalty for the failure to keep adequate notes will be subsumed by the penalty to be imposed for the more serious misconduct involved in the dispensing.
[56] Pharmacy Board of Australia and Nyoni [2018] WASAT 134 (S) at [41].
The Applicant submitted that cancellation of Mr Hegde's registration for a significant period of time was appropriate in order to achieve the protection of the public from serious misconduct which is difficult to detect, and for which financial gain is often a factor. The Applicant submitted that cancellation was necessary to achieve general deterrence and to reinforce the high standards expected of the professional and the denunciation of transgressions.
The Applicant submitted that if suspension was instead thought to be an appropriate penalty, conditions should be imposed on Mr Hegde's registration following the expiry of the term of suspension.
The Respondent submitted that, in light of the unusual circumstances of the case, particularly the fact he has not repeated the misconduct in more than a decade, is remorseful and has endured many years of stress and has already served a period of suspension of two and a half months. As a result of this proceeding, we might find a further period of suspension, rather than cancellation, to be the appropriate penalty.
Having regard to all of the matters to which we have referred above, we have come to the view that nothing less than a period of suspension would achieve the protection of the public for which the penalty is to be imposed. We do not consider that cancellation of his registration is required in the circumstances. In determining the length of the suspension, we have taken into account that Mr Hegde has already served a period of two and a half month suspension.
Having regard to all of the above, we consider that the appropriate penalty to be imposed is:
(1)A reprimand.
(2)The suspension of Mr Hegde's registration for a period of two months.
(3)A fine of $10,000.
The Applicant submitted that in the event that we determined to suspend Mr Hegde's registration, we should impose conditions on his registration that would apply at the conclusion of the period of suspension. The Applicant's proposed conditions included mentoring specifically in relation to the prescribing of anabolic androgenic steroids. The conditions were said to be necessary to ensure that Mr Hegde has the appropriate knowledge so that there would be no repeat of the misconduct.
We do not consider that the imposition of any conditions is necessary to ensure the protection of the public for the following reasons. First, there have been no further allegations that Mr Hegde has, since 2010, dispensed steroids inappropriately. Secondly, in that circumstance, a period of suspension of two months is not such a period of time that would cause him to cease to hold the necessary understanding of his professional obligations in relation to the dispensing of anabolic androgenic steroids when that period of suspension comes to an end.
In coming to our conclusion as to the appropriate penalty, we acknowledge that this would not have been the penalty we would have imposed had we been dealing with the matter at a time proximate to the misconduct occurring or even proximate to the finding of professional misconduct. The public and the profession should not view this highly unusual case in that way.
Costs
By its application, the Applicant sought an order that the Respondent pay the costs of the proceeding. That notwithstanding, at the hearing on 18 September 2023, the parties agreed that the issue of costs should be dealt with separately and made no submissions in relation to costs. We have, therefore, made no orders in relation to the issue of costs.
Proposed Orders
The orders that we would make as a consequence of our decision are as follows:
(1)Pursuant to s 196(2)(a) of the National Law, the Respondent is reprimanded in relation to the professional misconduct referred to in the Tribunal's order 1 made 7 August 2017.
(2)Pursuant to s 196(2)(d) of the National Law, the Respondent's registration as a pharmacist is suspended for a period of two months.
(3)Pursuant to s 196(2)(c) of the National Law, the Respondent is fined $10 000.
Before making the orders, we will need to hear from the parties as to the time at which Mr Hegde's suspension should commence and the time by which the fine is to be paid.
Orders
The Tribunal orders that by 24 November 2023, the parties are to confer about and file an agreed minute of proposed consent orders, or in the absence of agreement, their own minute of proposed orders and written submissions addressing the following matters:
(a)The date on which the Respondent's suspension is to commence;
(b)The time by which the fine is to be paid; and
(c)Any programming orders to be made in relation to the Applicant's application for costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to Judge Glancy
13 NOVEMBER 2023
10
2