Pharmacy Board Of Australia and Nyoni - [2018] WASAT 134 (S)

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: PHARMACY BOARD OF AUSTRALIA and NYONI [2018] WASAT 134
MEMBER: MS C WALLACE (SENIOR MEMBER)
MS P LE MIERE (MEMBER)
MR W BURG (SESSIONAL MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   14 DECEMBER 2018
FILE NO/S:   VR 2 of 2015
BETWEEN:   PHARMACY BOARD OF AUSTRALIA
Applicant
AND
EMSON CLEVER NYONI
Respondent

Catchwords:

Vocational regulation Pharmacist Disciplinary proceedings Professional misconduct

Legislation:

Health Legislation and Administration Act 1984 (WA)
Health Practitioner Regulation National Law (WA) Act 2010, s 3, s 3(2)(a), s3(3)(c), s 4, s 5, s 6, s 31, s 131(1)(b), s 178, s 191, s 193(1)(a)(i), s 193, s 195, s 196
Pharmacy Act 2010 (WA), s 3, s 39, s 56(1), s 57(a)
Poisons Act 1964 (WA), s 23(2)
Poisons Regulations 1965 (WA), reg 43A, reg 44, reg 45, reg 56, reg 56E, reg 56F
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant	:	Ms F A Stanton
Respondent	:	In Person

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	N/A

Case(s) referred to in decision(s):

Briginshaw v Briginshaw [1938] 60 CLR 336
Dekker v Medical Board of Australia [2014] WASCA 216
Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; [1997] NSWSC 297
Medical Board of Australia and Roberts [2014] WASAT 76
Medical Board of Australia v Woollard [2017] WASCA 64
Nyoni v Chee Koon Hee (No. 2) [2014] FCA 83
Nyoni v Chee Koon Hee (No. 4) [2013] FCA 948
Nyoni v Chee Koon Hee [2013] FCA 701
Nyoni v Decision Maker [2016] FCA 753
Nyoni v Murphy [2013] WASC 298
Nyoni v Murphy [2014] WASCA 70
Nyoni v Murphy [2016] HCASL 67
Nyoni v Pharmacy Board of Australia (No. 6) [2018] FCA 526
Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 8 January 2015 the Pharmacy Board of Australia (the Board) referred a matter to the Tribunal pursuant to s 193(1)(a)(i) of the Health Practitioner Regulation National Law being a Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law). The referral seeks orders pursuant to s 196(1)(b)(iii) of the National Law, in respect of a finding of professional misconduct or alternatively, orders pursuant to s 196(1)(b)(ii) and/or s 196(1)(b)(i) in respect of a finding of unprofessional conduct and/or unsatisfactory professional performance as against Mr Emson Clever Nyoni (Mr Nyoni), who is a registered pharmacist.
The allegations the subject of the application will be referred to in detail shortly, but in summary, the Board alleges that Mr Nyoni was convicted, on 23 January 2016, of six offences under the Poisons Regulations 1965 (WA) (repealed) (Poisons Regulations) in relation to the failure to maintain a register of drugs of addiction, the failure to keep an inventory of particular drugs of addiction and a failure to keep the safe containing drugs of addiction locked.
The Board also alleges that it imposed conditions on Mr Nyoni's registration pursuant to s 178 of the National Law, which, amongst other things, prohibited him from manufacturing, prescribing, possessing, supplying or selling Schedule 8 drugs, such conditions which were breached by Mr Nyoni in the period 24 May 2013 to 17 April 2014.
Despite the proceeding being listed for an initial directions hearing in January 2015 and programing orders being made to progress the matter, there has been quite some delay in the proceeding. It is worthwhile noting the reason for the delay in summation form in these reasons as relevant background procedural information.

Procedural matters

Prior to the lodgement of the Board's application with the Tribunal, in or around late November 2014, Mr Nyoni commenced proceedings WAD 357/2014 in the Federal Court of Australia (Federal Court proceedings) against the Board, the Australian Health Practitioner Regulation Agency (AHPRA) and the Chief Executive Officer of the Department of Health (DOH) seeking, amongst other orders, that the conditions referred to in [3] be removed from his general registration as a pharmacist. The Tribunal proceeding was sought to be adjourned a number of times pending the outcome of the Federal Court proceedings.
On 25 October 2016 Justice Siopis ordered that the Federal Court proceedings as against the DOH be dismissed.
On 17 April 2018 Justice Siopis published his judgment in the Federal Court proceedings and ordered that Mr Nyoni's claim be dismissed as against the remaining respondents and that Mr Nyoni pay the costs of that proceeding.
On 8 May 2018 Mr Nyoni filed an appeal notice in respect of the decision of Justice Siopis in the Federal Court proceedings (Federal Court proceedings WAD 191/2018).
The matter was back before the Tribunal for a directions hearing on 22 May 2018 at which time the Tribunal made a number of programming orders requiring Mr Nyoni to file a response to the application, the filing of bundles of documents by the parties and witness statements and listing the matter for a further directions hearing on 7 August 2018 for the purpose of listing it for final hearing.
Mr Nyoni did not attend the directions hearing. Notice of the directions hearing had been emailed to Mr Nyoni to the address on which he had been corresponding with the Tribunal, the latest email having been received from him by the Tribunal on 2 March 2018.
Mr Nyoni did not comply with any of the programming orders made by the Tribunal on 22 May 2018. The Board filed the Board's Book of Documents on 15 June 2018.
There was a further directions hearing at the Tribunal on 7 August 2018. Again Mr Nyoni did not attend. Further programming orders were made including listing the matter for final hearing on 19 October 2018. The Board complied with those further programing orders by filing the following further documentation:
(a)witness statement of Mr Neil Keen dated 26 September 2018;
(b)applicant's submissions dated 26 September 2018;
(c)applicant's supplementary book of documents dated 26 September 2018; and
(d)affidavit of Ms Jenny Maree McKenzie sworn 26 September 2018.
Given the lack of participation in the proceeding by Mr Nyoni, including the lack of provision of any evidence and the failure to provide any written submissions, on 16 October 2018 the Tribunal vacated the final hearing and made an order that the matter be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
On 11 September 2018, Mr Nyoni commenced an appeal in the Federal Court against a security for costs order obtained by the Board in proceedings WAD 191/2018 (Federal Court proceedings WAD 408/2018).
On 9 November 2018 the Board filed a further affidavit of Ms Jenny Maree McKenzie with the Tribunal, being the solicitor with the carriage of this matter on behalf of the Board and also with carriage of each of the Federal Court proceedings on behalf of the Board.
In the affidavit of 9 November 2018 Ms McKenzie states that all documents filed by the Board in this proceeding were sent by registered mail to Mr Nyoni and also emailed to him on the email address that he has been using to correspond with Ms McKenzie, the Board, the Tribunal and with the Federal Court. In addition, Ms McKenzie states that each of the orders made by the Tribunal which have been emailed to Mr Nyoni have also been sent to him by registered mail by Ms McKenzie at the address advised by Mr Nyoni pursuant to s 131(1)(b) of the National Law.
Ms McKenzie, in para 5 of her affidavit, states that the most recent occasion on which Mr Nyoni has emailed her from the email address used by the Tribunal and Ms McKenzie in this matter, was on 8 November 2018 (the day before swearing the affidavit).
In the circumstances the Tribunal considers that Mr Nyoni is fully aware of the Tribunal proceeding, has been given an opportunity to participate, but has chosen not to do so.

Statutory framework

Section 4 of the National Law relevantly provides as follows:
(1)The Health Practitioner Regulation National Law set out in the Schedule
(a)applies as a law of this jurisdiction; and
(b)as so applying, may be referred to as the Health Practitioner Regulation National Law (Western Australia); and
(c)as so applying, is a part of this Act.
(2)The power conferred by the Health Practitioner Regulation National Law (Western Australia) section 245 to make regulations for the purposes of that Law does not extend to making a regulation relating to the safe operation or use by a medical radiation practitioner of an electronic product, irradiating apparatus or radioactive substance as those terms are defined in the Radiation Safety Act 1975 section 4.
(3)The Health Practitioner Regulation National Law (Western Australia) sections 295 to 297 do not apply to an asset, liability, contract, property or record of the Council that relate to the management of the unincorporated Pharmaceutical Society by the Council.
(4)In subsection (3)
Council means the Pharmaceutical Council of Western Australia referred to in the Pharmacy Act 1964 section 7(1);
unincorporated Pharmaceutical Society means the Pharmaceutical Society of Western Australia referred to in the Pharmacy Act 1964 section 6(1).
The Tribunal is 'the responsible Tribunal' for the purposes of the National Law pursuant to s 6.
Section 3(2)(a) of the National Law provides:
(2)The objectives of the national registration and accreditation scheme are
(a)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[.]
Section 3(3)(c) of the National Law provides as follows:
(3)The guiding principles of the national registration and accreditation scheme are as follows
…
(c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely consistent with best practice principles.
The Tribunal is required to exercise its functions under the National Law having regard to the objectives and guiding principles as set out in s 3 of the National Law: s 4 of the National Law.
Section 5 of the National Law defines 'unsatisfactory professional performance', 'unprofessional conduct' and 'professional misconduct' as follows:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of
(i)a condition to which the practitioner's registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's wellbeing; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation[.]
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 health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]
Section 193 of the National Law relevantly provides that a National Board must refer a matter about a registered health practitioner to a responsible Tribunal if the National Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct.
Section 196 of the National Law provides:
(1)After hearing a matter about a registered health practitioner, a responsible tribunal may decide
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.
(2)If a responsible tribunal makes a decision referred to in subsection (1)(b), 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 the practitioner's 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.
(3)If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4)If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to
(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
(i)providing any health service or a specified health service; or
(ii)using any title or a specified title.
In addition, the Tribunal may make any order about costs it considers appropriate for the proceeding: s 195 of the National Law.
Section 23(2) of the Poisons Act 1964 (WA) (repealed) (Poisons Act) provides that a registered pharmacist is authorised to manufacture, possess, use, supply or sell substances referred to in the Poisons Act as poisons (including those specified in Schedule 8) in the ordinary course of their retail business, subject to such conditions and restrictions as may be prescribed and subject to any notice given by the Chief Executive Officer (CEO) (as defined in the Health Legislation and Administration Act 1984 (WA)) pursuant to the Poisons Regulations.
Regulation 43A of the Poisons Regulations provide that the CEO may, by notice given under s 23(2) of the Poisons Act, revoke the authority conferred by that section in relation to poisons including those contained in Schedule 8, and that such revocation may be a total revocation or subject to particular conditions.
Regulation 44 of the Poisons Regulations provides that pharmacists must maintain a register of drugs of addiction (including any substance included in Schedule 8) and that a pharmacist must record any transaction relating to a drug of addiction in the register. Regulation 45 required that the register be kept for seven years. Regulations 56, 56E and 56F required that drugs of addiction be securely stored by the pharmacist in a safe, lockable drawer or poisons cupboard and that the key be kept in the immediate and personal possession of the pharmacist.
The Pharmacy Act 2010 (WA) (Pharmacy Act) provided as follows:
•The 'pharmacy business' means the business consisting of the provision of pharmaceutical services and from which goods and services relating to the provision of pharmaceutical services may be provided: s 3;
•The Pharmacy Registration Board of Western Australia is to grant an application for registration of premises as a pharmacy in the name of the applicant for registration: s 39; and
•Where the person in whose name a pharmacy is registered under s 39 is a pharmacist, the pharmacist has overall responsibility for the pharmacy business carried on at that pharmacy (s 56(1)) and is required to ensure that the pharmacy business carried on at the pharmacy is carried on under the personal supervision of the pharmacist at all times: s 57(a).
The Poisons Act provided that all substances listed in Schedule 8 to the Standard for the Uniform Scheduling of Medicines and Poisons were classified as Schedule 8 drugs.
The Poisons Standard 2012 applied from 15 June 2012 until 22 August 2013 and the Poisons Standard 2013 applied from 23 August 2013 until 11 October 2014 (collectively the Poisons Standards). The Poisons Standards recorded that the following poisons were Schedule 8 drugs:
(a)Buprenorphine;
(b)Dexamphetamine;
(c)Fentanyl;
(d)Oxycodone;
(e)Methadone;
(f)Methylphenidate; and
(g)Morphine.

Relevant case law

The difference between 'unsatisfactory professional performance' and 'unprofessional conduct' is described by Mitchell J in Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 (Solomon), at [126]-[128] as follows:
What then is the difference between 'unsatisfactory professional performance' and 'unprofessional conduct'? It seems to me that the concept of unprofessional conduct is broader than, but not necessarily more serious than, unsatisfactory professional performance. Unsatisfactory professional performance seems to be a subset of unprofessional conduct. If a practitioner behaves in a way that shows their knowledge etc in the practice of the health profession to be below the standard reasonably expected of a practitioner of an equivalent level of training or experience (unsatisfactory professional performance), it is difficult to see why he or she has not also engaged in professional conduct that is of a lesser standard than that which might reasonably be expected by the public or his or her peers (unprofessional conduct). However, the concept of unsatisfactory professional performance is focused on the capacity of the practitioner 'in the practice of the health profession', which seems to be a narrower concept than 'professional conduct'. The phrase 'in the practice of the health profession' is apt to denote the actual delivery of health services, rather than administrative, regulatory and other matters associated with the delivery of health services.
The focus of the definition of 'unsatisfactory professional performance' is on the knowledge etc of the practitioner, whereas the focus of 'unprofessional conduct' is on the conduct of the practitioner. However, under s 191(1)(b) of the National Law, it is necessary to find that a practitioner 'behaved in a way' that constitutes unsatisfactory professional performance. This reference to behaviour indicates that the concept of unsatisfactory professional performance is not divorced from the practitioner's conduct.
The concept of 'unprofessional conduct' is also broader than 'unsatisfactory professional conduct' in that a number of matters, such as contravention of the National Law, are expressly included in the former but not the latter.
In Medical Board of Australia v Woollard [2017] WASCA 64, at [130] the approach to be taken in disciplinary proceedings against medical practitioners (which is apposite the approach to be taken against any health practitioner) is described as follows:
In 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,[1] 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[2] 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)
[1] Herron v McGregor (1986) 6 NSWLR 246, 258
[2] Health Care Complaints Commission v Do [2014] NSWCA 307 [35]
As well as the protection of the public, a relevant consideration in the disciplinary process of health practitioners is the need to maintain high professional standards and to deter others in the profession from engaging in similar conduct: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630; [1997] NSWSC 297.
In Solomon, Mitchell J describes the task of a panel under s 191 of the National Law at [129]-[139]. The task of the Tribunal under s 196 of the National Law is in many ways similar, therefore it is useful to set out the required steps as follows:
(a)The first matter that the Tribunal must be satisfied of is that the relevant practitioner has 'behaved in a way' that satisfies certain criteria. This requires the Tribunal to identify the particular way in which the practitioner has behaved, including the circumstances in which the behaviour occurred. It is only when the relevant behaviour and the surrounding circumstances are identified, can the question of whether the behaviour is of a prescribed character be considered.
(b)The circumstances which are relevant to the behaviour include any standard, or specific professional duty, generally accepted within the profession at the time: Dekker v Medical Board of Australia [2014] WASCA 216 at [71].
(c)Once findings have been made about the manner and circumstance in which the practitioner has behaved, the Tribunal must consider whether behaving in that way, in the relevant circumstances, constitutes a certain category of conduct as defined in the National Law. The Board bears the onus of proof. It is to the civil, not criminal standard and the principles of Briginshaw v Briginshaw [1938] 60 CLR 336 apply. Thus the facts need only be established on a balance of probabilities, however, the nature and seriousness of the allegations are relevant to the question as to whether the facts are proved to the reasonable satisfaction of the Tribunal.
In its application the Board alleges that Mr Nyoni's conduct constitutes professional misconduct under the National Law. The Board also alleges in the alternative that Mr Nyoni behaved in a way that constitutes unprofessional conduct or unsatisfactory professional performance for the purposes of the National Law.
The differences between the categories and conduct was usefully explained in the decision of the Tribunal in Medical Board of Australia and Roberts [2014] WASAT 76 (Roberts) at [174][182] as follows:
174The term professional misconduct is defined to include 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. The definition is inclusory and is not an exhaustive statement of that term. Thus, 'professional misconduct' under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example conduct which is characterised as professional misconduct or its equivalent under earlier vocational disciplinary legislation.
175It follows from this that the test of whether professional misconduct has occurred still includes the test of 'infamous conduct in a professional respect' which was adopted in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750:
If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect.
176The adjective 'infamous' is a term 'denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking off'; Felix v General Dental Council [1960] AC 704 at 720.
177The term unprofessional conduct is defined to mean professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers. The definition then includes examples of 'unprofessional conduct'. Unlike the definition of 'professional misconduct', the definition of 'unprofessional conduct' is an exhaustive statement of that term.
178Unprofessional conduct is clearly conduct of a less serious nature than professional misconduct. Whether or not a practitioner is guilty of unprofessional conduct must be judged in accordance with the standards of his or her profession.
179The definition of the term 'unsatisfactory professional performance' is also an exhaustive statement of that term. It refers to a medical practitioner's performance as a practitioner rather than his or her conduct.
180As McLure P noted in Bernadt v Medical Board of Australia [2013] WASCA 259 at 23, professional misconduct has both a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience) and a conduct component (conduct whether occurring in connection with the practice of the practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession).
181The definition of unprofessional conduct also has both a performance component and a conduct component. The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner's professional peers. The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect a practitioner's suitability to continue to practise the profession.
182Unsatisfactory professional performance, on the other hand, has only a performance component (the knowledge, skill or judgment possessed, or care exercised by a medical practitioner is below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience). It is suggestive of a generalised deficiency in the way in which a practitioner handles his or her professional affairs; Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992 at 19) (Jemielita). In Jemielita Owen J was considering the meaning of 'incompetency' under the now repealed Medical Act 1894 (WA). It is likely that a finding of unsatisfactory professional performance will occur where the performance of the practitioner concerned has consistently fallen below the expected standard as a medical practitioner, or where the practitioner has never attained that standard.

The Board's allegations

The Board alleges that Mr Nyoni engaged in professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance as defined in s 5 of the National Law in that:
(a)despite having his authority conferred by s 23(2) of Poisons Act in relation to all substances in Schedule 8 being revoked effective from 24 May 2013, Mr Nyoni possessed, supplied and sold Schedule 8 drugs on 131 occasions between 24 May 2013 and 17 April 2014; and
(b)in breach of conditions imposed on Mr Nyoni's registration by the Board on 26 November 2013 which prohibited him from manufacturing, prescribing, possessing, supplying or selling Schedule 8 drugs, Mr Nyoni did so possess, supply and sell Schedule 8 drugs on 38 occasions between 26 November 2013 and 17 April 2014.
The Board alleges that Mr Nyoni's conduct demonstrates a 'flagrant disregard' for the obligations imposed by the Poisons Act and the Poisons Regulations in respect of handling Schedule 8 drugs as well as evidencing a complete disregard for the obligations imposed on pharmacists by legislation designed to protect the public (paras 50-52 of the Board's submissions dated 26 September 2018).
As previously mentioned, Mr Nyoni did not provide a response to the Board's allegations.

Relevant findings of fact

The Tribunal is able to make many of the findings of fact relevant to the proceeding on the basis of the documentation filed with it by the Board. In this regard the facts are well substantiated in a documentary sense and therefore in the most part are uncontroversial.
Mr Nyoni is a pharmacist registered under the National Law who owned and operated the pharmacy in the Wheatbelt town of Kellerberrin, under the business name of Kellerberrin Pharmacy (Pharmacy) between about 2003 and mid-April 2014. The Pharmacy was registered to Mr Nyoni from 2003 until 17 April 2014 when the Pharmacy was sold.
At all relevant times:
(a)the Pharmaceutical Services Branch of the Department of Health of Western Australia was responsible for the administration of the Poisons Act and the Poisons Regulations;
(b)the Pharmacy Registration Board of Western Australia was established under the Pharmacy Act and was responsible for the administration of that legislation including the regulation of pharmacy businesses; and
(c)the Board was established under s 31 of the National Law and was responsible, amongst other things, for registering pharmacists, developing standards, codes and guidelines for the pharmacy profession and handling notifications, complaints, investigations and disciplinary hearings.
Mr Nyoni held a licence under the Poisons Act to store, handle and sell substances at the Pharmacy from 2003 until 17 April 2014 (pages 78-79 of the Board's Supplementary Book of Documents).
On 23 January 2013 Mr Nyoni was convicted in the Magistrates Court in Merredin of six offences under the Poisons Act. The offences were as follows:
(a)On or about 17 August 2011, failed to maintain a register of drugs of addiction in relation to Oxynorm 5mg capsules;
(b)On or about 17 August 2011 failed to maintain a register of drugs of addiction in relation to Durogesic 25mcg/hr patches;
(c)From 1 July 2011 until 17 August 2011, failed to maintain and record an inventory of drugs of addiction held in stock at an interval of not more than one month;
(d)From 31 July 2011 until 17 August 2011, failed to maintain and record an inventory of drugs of addiction held in stock at an interval of not more than one month;
(e)On 17 August 2011, failed to keep the key to the Pharmacy's drug safe in Mr Nyoni's immediate and personal possession, or to ensure that the key was in the immediate or personal possession of a properly authorised person; and
(f)On 17 August 2011 failed to ensure that the Pharmacy's drug safe was locked at all times, except when items would be placed into, or removed from, the safe.
Mr Nyoni was fined $14,000 in respect of his convictions. Mr Nyoni appealed to the Supreme Court. The charges were upheld but the fine was reduced to $10,000: Nyoni v Murphy [2013] WASC 298. Mr Nyoni then appealed to the Supreme Court, Court of Appeal but was unsuccessful: Nyoni v Murphy [2014] WASCA 70. An application by Mr Nyoni seeking special leave to appeal to the High Court was dismissed on 13 April 2016: Nyoni v Murphy [2016] HCASL 67.
On 12 April 2013, a delegate of the CEO wrote to Mr Nyoni and advised him that as of 1 May 2013, his authority to manufacture, possess, sell or supply Schedule 8 drugs, which had been conferred on him by s 23(2) of the Poisons Act, was revoked (document 6 in the Board's book of documents).
On 26 April 2013, a delegate of the CEO wrote to Mr Nyoni again and informed him that the authority conferred on him by s 23(2) of the Poisons Act in relation to all substances in Schedule 8 was revoked, effective from 24 May 2013 (document 8 in the Board's book of documents) (Schedule 8 Revocation).
Therefore as of 24 May 2013, pursuant to reg 43A of the Poisons Regulations Mr Nyoni's authority to manufacture, possess, use, supply or sell any Schedule 8 drug that had been conferred on him by s 23(2) of the Poisons Act was revoked.
Mr Nyoni made a telephone call to the Chief Pharmacist of the DOH on 23 May 2013 in respect of which the Chief Pharmacist made a file note (pages 80-81 of the Board's Supplementary Book of Documents). The telephone call took place in the context of an interlocutory application made by Mr Nyoni in Federal Court proceedings WAD 154/2013, such proceedings which related to, amongst other matters, relief sought by Mr Nyoni to set aside an agreement entered into by him (and purportedly rescinded) to sell the Pharmacy. The proceeding was against a number of respondents including the CEO of the DOH. Mr Nyoni filed an interlocutory application in the proceeding seeking an injunction to stop the Schedule 8 Revocation.
The Chief Pharmacist's file note of the 23 May 2013 telephone conversation noted the following:
•Mr Nyoni was told that just because the application had been lodged this did not necessarily mean the Delegate would or must revoke the Notice.
•Mr Nyoni outlined that he believes that the application required the 'status quo' to be maintained, and this meant the Notice not taking effect.
•Mr Nyoni was informed that it was understood that the matter would be heard on the 10 June 2013 and any change to the status of the Notice determined by the Federal Court on this day.
•Mr Nyoni was told that it would be prudent to comply with the Notice until this date, but he should do as he believed legally correct or as based on his own legal advice.
•Mr Nyoni was further told that the Delegate would not be corresponding to provide him any instruction on the matter, specifically whether the effect of the Notice was stopped by the application, then this was a matter of law for the Court and not for the Department to acknowledge.
On 10 June 2013 Gilmour J published his judgment dismissing Mr Nyoni's interlocutory application: Nyoni v Chee Koon Hee [2013] FCA 701.
On 10 October 2013 the Chief Pharmacist of the DOH wrote to Mr Nyoni (pages 11 and 12 of the Board's Book of Documents) noting, amongst other things, the following:
…
Routine monitoring of Schedule 8 medicine dispensing transactions by the Department indicates that during August 2013 a number of prescriptions for Schedule 8 medicines were dispensed at Kellerberrin pharmacy.
As you are aware, effective of 24 May 2013 your personal authority under the Poisons Act to dispense Schedule 8 medicines was revoked by written Notice of the Delegate of the CEO.
…
I request that you provide the name of the pharmacist involved in each of these instances of supply[.]
Mr Nyoni replied to the DOH on 4 November 2013 (pages 13 and 14 of the Board's Book of Documents) stating as follows:
I … confirm that the Schedule 8 Medicines attached (16) were dispensed in August 2013, at Kellerberrin Pharmacy, by Emson Nyoni as shown in the transaction list attached[.]
On 20 May I contacted you by phone after dispatching copies of proceedings in the Federal Court regarding the revocation of my Schedule 8 licence, due to commence on 24 May 2013. In the proceedings I sought to set aside the Notice to Revoke my Schedule 8 licence on several grounds, enumerated and substantiated in the proceeding.
I point out that by commencing these proceedings, the effect is to maintain the status quo, before a final determination is made[.]
On 26 November 2013 the Board imposed conditions on Mr Nyoni's registration, including the following:
2.The Registrant is prohibited from manufacturing, prescribing, possessing, supplying, or selling Schedule 8 drugs.
3.The Registrant is prohibited from supplying Schedule 8 drugs, save in an emergency. Where in an emergency the Registrant has personally supplied Schedule 8 drugs to any person, the Registrant must notify the Board in writing of the emergency within 24 hours, and provide such details relating to the emergency as are required by the Board.
(Conditions) (pages 15 and 168 in the Board's Book of Documents)

On 12 December 2013 AHPRA wrote to Mr Nyoni and advised him of the Conditions (page 16 of the Board's Book of Documents).
On 5 May 2014 the DOH wrote to AHPRA informing it that Mr Nyoni appeared to be in breach of the Conditions by supplying Schedule 8 drugs at the Pharmacy between November 2013 and April 2014 (page 33 of the Board's Book of Documents).
AHPRA wrote to Mr Nyoni on 21 May 2014 and sought his response to the allegation that he was in breach of the Conditions (page 34 of the Board's Book of Documents). Having received no response AHPRA followed up Mr Nyoni on 26 June 2014 (page 40 of the Board's Book of Documents).
On 27 June 2014 Mr Nyoni sought an extension of time until 7 July 2014 to respond to AHPRA. No response was received by that date and AHPRA contacted Mr Nyoni again requesting a response by 14 August 2014 (document 46 of the Board's Book of Documents).
On 14 August 2014 Mr Nyoni emailed AHPRA requesting a further extension of time to respond to its request. Then on 22 August 2014 Mr Nyoni wrote to AHPRA in response to the allegation raised regarding his breach of the Conditions (pages 4954 of the Board's Book of Documents) effectively stating the following:
(a)Mr Nyoni had not been supplying Schedule 8 drugs between November 2013 and April 2014 at the Pharmacy, despite the Conditions, because the legal action he had taken effectively preserved the 'status quo';
(b)The originating and appeal proceedings that Mr Nyoni had commenced 'rendered nugatory' the Conditions;
(c)The Pharmacy is a rural pharmacy and it is not 'in the public interest to impose Conditions that block the supply of Schedule 8 medicines'; and
(d)The real motive behind the imposition of the Conditions is to 'cause irreparable harm and character assassination on a world scale' to Mr Nyoni.
On 2 December 2014 the Board decided to refer the matter to the Tribunal.

Determination

It does not appear to be in contention between the parties that Mr Nyoni did in fact possess, supply and sell Schedule 8 drugs at the Pharmacy during the relevant period from 24 May 2013 until 17 April 2014. For completeness, the Tribunal finds that Mr Nyoni possessed, supplied and sold Schedule 8 drugs at the Pharmacy during that time and in this regard relies on the following corroborating evidence:
(a)The Monitoring of Drugs Dependence System (MODDS) data base record of prescriptions dispensed at the Pharmacy from 1 May 2013 to 27 May 2014 (documents 25-30 of the Board's Book of Documents) show that Schedule 8 drugs had been dispensed on 131 occasions between 24 May 2013 and 17 April 2017 and on 38 occasions between 26 November 2013 and 17 April 2014;
(b)Mr Nyoni's Register of Drugs of Addiction in hand written and typed format show the dispenser of each of the Schedule 8 drugs during the relevant period to be a person with the initials 'EM' (documents 83-133 of the Board's supplementary book of documents); and
(c)Mr Nyoni gave evidence in Federal Court proceedings WAD 357/2014 before Justice Siopis on 16 August 2017 (Annexure JMM1 to the affidavit of Jenny McKenzie sworn 26 September 2018) admitting the conduct:
Counsel:And then if you go to paragraph sorry page 316, it's a letter from AHPRA to yourself dated 30 December 2013[.]
…
Partway down in the third paragraph second paragraph of that letter it says:
On 14 May 2014 AHPRA received a notification from the Department of Health.
And then the very next paragraph it says:
The notification alleges you've been supplying schedule 8 drugs between November 2013 and April 2014 at the Kellerberrin Pharmacy.
That was true, wasn't it?
Mr Nyoni: Yes, that was true; yes.
Counsel:And that you also supplied schedule 8 drugs in August 2013?
Mr Nyoni: Yes. That's correct.
Counsel:And you supplied those drugs because even though there was a revocation of your authority from the Department of Health you thought that because you were appealing or challenging that decision it didn't stop you from supplying?
Mr Nyoni: Yes.
(ts 66, 16 August 2017)
Counsel:If you go to page 375, and this is letter from you to AHPRA?
Mr Nyoni:Yes.
Counsel:dated 22 August 2014?
Mr Nyoni:Yes
Counsel:And where you say under the heading Notice of Receipt of Notification and Investigation:
I refer to the letter from AHPRA of May 2014 
which is the letter that we were just looking at a moment ago:
The notification alleges that I've been supplying schedule 8 drugs between November 2013 and 2014 at Kellerberrin Pharmacy despite a condition imposed on my registration prohibiting me from manufacturing, prescribing, possessing, supplying or selling schedule 8 drugs.
(ts 67; 16 August 2017)
Mr Nyoni:Yes.
Counsel:And then the next page of your letter, the first major paragraph, the last sentence sorry. You say:
I will point out that I have not been supplying schedule 8 drugs between November and April 2014 at Kellerberrin Pharmacy despite a condition imposed on my registration.
What you're saying is, 'I did supply the drugs, but the condition doesn't apply to me. The revocation doesn't apply to me', and you say in the very next sentence:
My response is based upon the legal actions I have taken against the revocation of my schedule 8 licence since March '13 right through to my High Court appeal.
Counsel:So what you're saying there, Mr Nyoni, is that there was this revocation of authority, but you didn't have to take any notice of it because you were challenging it. That's what you're saying here?
Mr Nyoni: Yes.
…
Counsel:The conditions have been imposed?
Mr Nyoni: They're all …
Counsel:… preventing you by AHPRA?
Mr Nyoni: Yes.
Counsel:By the board, rather?
Mr Nyoni: Yes.
Counsel:preventing you from supplying, etcetera?
Mr Nyoni: Yes.
Counsel:schedule 8 drugs?
Mr Nyoni: Yes.
Counsel:You've then and that was in November 2013?
Mr Nyoni: Yes.
Counsel:And then you you've supplied drugs after that?
Mr Nyoni: Yes.
Counsel:… from November 2013 to April 2014?
Mr Nyoni: Yes. Precisely, because of those proceedings.
Counsel:And you knew that in April 2013 that there was a revocation of authority, and yet in August 2013 you supplied schedule 8 drugs. Yes?
Mr Nyoni: Yes.
(ts 68-69, 16 August 2017)
The Tribunal therefore finds that Mr Nyoni engaged in the alleged behaviour, that is, despite having the authority conferred on him pursuant to the Poisons Act revoked from 24 May 2013, he possessed, supplied and sold Schedule 8 drugs on 131 occasions between 24 May 2013 and 17 April 2014. He also, in breach of the Conditions, possessed, supplied and sold Schedule 8 drugs on 38 occasions between 26 November 2013 and 17 April 2014.
In Mr Nyoni's response to AHPRA to the allegation that he was in breach of the Conditions, Mr Nyoni asserted that the Schedule 8 Revocation and Conditions imposed were 'nugatory' and that his initiation of legal proceedings stayed those actions thus maintaining the 'status quo'. Mr Nyoni did not provide any reasons or supporting documentation for his assertion.
Ultimately the Tribunal has difficulty accepting the assertion that Mr Nyoni believed he was entitled to continue to exercise his authority in respect of Schedule 8 drugs because of legal action taken by him. Such a position is contrary to the following undisputed facts:
(a)Written notification was given to Mr Nyoni on 12 April 2013 by the CEO of the DOH advising him that the authority conferred on him by s 23(2) of the Poisons Act to manufacture, possess, sell or supply Schedule 8 drugs was revoked as of 1 May 2013;
(b)Written notification was given to Mr Nyoni on 26 April 2013 by the CEO of the DOH informing him that the authority conferred on him by s 23(2) of the Poisons Act in relation to all substances in Schedule 8 was revoked as of 24 May 2013;
(c)Contrary to the position asserted by Mr Nyoni, that the mere initiation of legal action (Federal Court proceedings WAD 154/2013) was sufficient to preserve the 'status quo' and render the Schedule 8 Revocation nugatory, he made an urgent interlocutory application on 22 May 2013 seeking injunctive relief;
(d)On 10 June 2013 Gilmour J dismissed Mr Nyoni's interlocutory application. In his Honour's judgment the jurisdiction of the Federal Court to revoke or suspend the Schedule 8 Revocation was questioned with his Honour noting at [23]: 'It is not, on its face, a Federal matter, nor am I able to see that the claim falls within the accrued jurisdiction of the Court as being attached to some other Federal claim in the proceeding'.
(e)The Federal Court proceedings in WAD 154/2013 were dismissed by Gilmour J on 18 September 2013: Nyoni v Chee Koon Hee (No. 4) [2013] FCA 948.
(f)On 9 October 2013 Mr Nyoni filed a notice of appeal (WAD 382/2013) which was dismissed on 18 February 2014 by McKerracher J: Nyoni v Chee Koon Hee (No. 2) [2014] FCA 83.
(g)On 10 October 2013 the Chief Pharmacist of the DOH wrote to Mr Nyoni raising concerns with him regarding dispensing of Schedule 8 drugs at the Pharmacy despite the Schedule 8 Revocation;
(h)On 12 December 2013 AHPRA wrote to Mr Nyoni informing him of the Conditions imposed on his registration;
(i)On 5 May 2014 AHPRA wrote to Mr Nyoni informing him that it appeared that he was in breach of the Conditions and seeking an explanation from him; and
(j)Mr Nyoni unsuccessfully attempted to appeal McKerracher J's decision in the Administrative Appeals Tribunal and then to the Federal Court (WAD 148/2016): Nyoni v Decision Maker [2016] FCA 753.
As previously noted earlier in these reasons, on 27 November 2014 Mr Nyoni commenced the Federal Court proceedings against the Board, the CEO and AHPRA: WAD 357/2014. Relevantly in those proceedings:
1)The application against the CEO was dismissed on 25 October 2016: Nyoni v Pharmacy Board of Australia (No. 6) [2018] FCA 526 (Nyoni No. 6) at [81][82];
2)The issues for trial against the Board and AHPRA were restricted to those within the ambit of three potential causes of action, being misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law, defamation and injurious falsehood: Nyoni No. 6 at [83]; and
3)The proceedings were dismissed by Siopis J on 17 April 2018 with costs awarded against Mr Nyoni: Nyoni No. 6.
It is clear from the above summation of the various proceedings initiated by Mr Nyoni that no orders were ever made which would give the legal effect which appears to be asserted by Mr Nyoni. Indeed the making of the urgent interlocutory application before Gilmour J evidences that Mr Nyoni knew that there was no automatic stay of the operation of the Schedule 8 Revocation. Similarly, by taking no such interlocutory action in the Federal Court proceedings before Siopsis J (which partly sought the removal of the Conditions) Mr Nyoni would have known the initiation of the proceeding itself did not remove the imposition of those Conditions absent injunctive relief.
In any event, the only legal action taken during the relevant period of conduct, being May 2013 to April 2014, which could have possibly resulted in a stay of the Schedule 8 Revocation (but not removal of the Conditions) was Federal Court proceedings WAD 154/2013 and by 10 June 2013 Mr Nyoni knew beyond any doubt that he had been unsuccessful in obtaining any injunctive relief, yet he persisted with the conduct past 10 June 2013.
In summary, the Tribunal finds that Mr Nyoni's conduct breached the Schedule 8 Revocation and the Conditions and that he did so intentionally in circumstances where he knew that there was no 'stay' or any other such legal mechanism which rendered them 'nugatory' and he did so on a multitude of occasions. The finding of intention is supported, in our view, by the following facts:
1)Mr Nyoni was notified in writing on 26 April 2013 regarding the Schedule 8 Revocation (see [50] above) and on 10 October 2013 was asked to explain why he was still dispensing Schedule 8 drugs despite the Schedule 8 Revocation (see [55] above).
2)Mr Nyoni unsuccessfully sought an injunction to stay the operation of the Schedule 8 Revocation (see [54] above). Thus he knew that there was no stay of the operation of the Schedule 8 Revocation.
3)Mr Nyoni was informed in writing on 12 December 2013 regarding the imposition of the Conditions (see [58] above) and on 5 May 2014 was asked to explain why he appeared to be in breach of the Conditions (see [59] above).
4)Mr Nyoni did not take any legal action to remove the imposition of the Conditions until after the relevant period during which the conduct occurred the subject of these proceedings. Thus in the circumstances he knew that there could be no legal stay of the operation of the Conditions.
It is difficult to comprehend why Mr Nyoni would act in such a flagrant disregard of the imposition of the Schedule 8 Revocation and the Conditions other than what can be gleaned from his correspondence with AHPRA in August 2014, being his view that the regulatory authorities were using their powers with an ulterior motive, that being to 'cause irreparable harm' to Mr Nyoni and to assassinate his character 'on a world scale'. Such allegations we note which have failed to succeed in any of the legal actions initiated by Mr Nyoni in the Federal Court.
We find that Mr Nyoni's conduct does constitute professional misconduct as defined in the National Law. That is, by intentionally possessing, supplying and selling Schedule 8 drugs in breach of the Schedule 8 Revocation and by intentionally possessing, supplying and selling Schedule 8 drugs in contravention of the Conditions during the relevant period Mr Nyoni engaged in conduct which falls substantially below the standard reasonably expected by the public and by Mr Nyoni's peers and thus both constitute professional misconduct engaged in by Mr Nyoni.
It cannot be found, on the facts as established, that My Nyoni unwittingly engaged in the relevant conduct, or engaged in the conduct under a false apprehension as to the true state of affairs, such misapprehension which had not been corrected. The established facts show that despite being notified of the restrictions which had been imposed on him on multiple occasions, and despite taking legal action unsuccessfully to remove the restrictions, Mr Nyoni persisted in the conduct. In this factual context, the conduct can only be seen as evidencing a complete lack of regard held by Mr Nyoni in respect of the legislative obligations imposed on him and also a complete lack of regard towards the authorities bestowed with the statutory duty of regulating his profession in order to protect members of the public.
The conduct viewed as a whole is conduct, in the Tribunal's view, that would reasonably be regarded as disgraceful or dishonourable by Mr Nyoni's profession of good repute and competency and in our view clearly falls into the category of conduct characterised as professional misconduct: Roberts at [174]-[182].

Orders

1.The Tribunal finds that the following disciplinary matters exist and that Mr Emson Clever Nyoni is guilty of professional misconduct in that:
(a)Despite having his authority conferred by s 23(2) of the Poisons Act 1964 (WA) (repealed) in relation to all substances in Schedule 8 being revoked effective from 24 May 2013, Mr Emson Clever Nyoni intentionally possessed, supplied and sold Schedule 8 drugs on 131 occasions between 24 May 2013 and 17 April 2014; and
(b)In breach of conditions imposed on Mr Emson Clever Nyoni's registration by the Board on 26 November 2013 which prohibited him from manufacturing, prescribing, possessing, supplying or selling Schedule 8 drugs, Mr Emson Clever Nyoni intentionally did so possess, supply and sell Schedule 8 drugs on 38 occasions between 26 November 2013 and 17 April 2014.

2.The Pharmacy Board of Australia is to file and serve written submissions on the Tribunal and Mr Emson Clever Nyoni as to the orders and penalty by 11 January 2019.
3.Mr Emson Clever Nyoni is to file and serve written submissions and any supporting evidence in relation to orders and penalties by 8 February 2019.
4.Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C WALLACE, (SENIOR MEMBER)

14 DECEMBER 2018

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   PHARMACY BOARD OF AUSTRALIA and NYONI [2018] WASAT 134 (S)
MEMBER:   MS C WALLACE, SENIOR MEMBER
MS P LE MIERE, MEMBER
MR W BURG, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   13 JUNE 2019
PUBLISHED           :   13 JUNE 2019
FILE NO/S:   VR 2 of 2015
BETWEEN:   PHARMACY BOARD OF AUSTRALIA
Applicant
AND
EMSON CLEVER NYONI
Respondent

Catchwords:

Pharmacist - Professional misconduct - Factors relevant to penalty - Permanent or indefinite fitness to practise - Registration cancelled

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 196(1)(b)(iii), s196(2), s 196(2)(a), s 196(2)(e), s 196(4), s 196(4)(a)
Poisons Act 1964 (WA), s 23(2)
Poisons Regulations 1965 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Registration cancelled for a period of two years

Category: B

Representation:

Counsel:

Applicant	:	Ms F A Stanton
Respondent	:	In Person

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	N/A

Case(s) referred to in decision(s):

Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334
Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992)
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Law Society of New South Wales v Bannister (unreported, Court of Appeal, 27 August 1993)
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Profession Complaints Committee v Love [2014] WASC 389
Medical Board of Australia and Lal [2019] WASAT 13
Pharmacy Board of Australia and Nyoni [2018] WASAT 134
Singh v Medical Board of Australia [2019] WASCA 51
Stirling v Legal Services Commissioner [2013] VSCA 37
Veterinary Surgeons' Board of Western Australia and Alexander [2014] WASAT 105 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In Pharmacy Board of Australia and Nyoni [2018] WASAT 134 (Nyoni), the respondent, Mr Emson Clever Nyoni, was found, pursuant to s 196(1)(b)(iii) of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law), to have engaged in a way that constitutes professional misconduct as a registered pharmacist.
The Tribunal found Mr Nyoni guilty of professional misconduct on the basis of the following findings:
a)Despite having his authority conferred by s 23(2) of the Poisons Act 1964 (WA) (repealed) in relation to all substances in Schedule 8 being revoked effective from 24 May 2013, Mr Nyoni intentionally possessed, supplied and sold Schedule 8 drugs on 131 occasions between 24 May 2013 and 17 April 2014; and
b)In breach of conditions imposed on Mr Nyoni's registration by the Pharmacy Board of Australia (the Board) on 26 November 2013 which prohibited him from manufacturing, prescribing, possessing, supplying or selling Schedule 8 drugs, Mr Nyoni intentionally did so possess, supply and sell Schedule 8 drugs on 38 occasions between 26 November 2013 and 17 April 2014.
Also, relevant in the context of a consideration of the appropriate penalty, the Tribunal made the following findings in Nyoni:
a)Mr Nyoni acted in flagrant disregard of the imposition of his authority to handle Schedule 8 drugs and the conditions imposed on his registration by the Board; Nyoni at [72];
b)Mr Nyoni's conduct during the relevant period fell substantially below the standard reasonably expected by the public and Mr Nyoni's peers; Nyoni at [73];
c)Despite Mr Nyoni being notified of the restrictions which had been imposed on him on multiple occasions, and despite taking legal action unsuccessfully to remove the restrictions, he nevertheless persisted in the conduct. The conduct could therefore only be seen as evidencing a complete lack of regard held by Mr Nyoni 'in respect of the legislative obligations imposed on him' and towards the 'authorities bestowed with the statutory duty of regulating his profession in order to protect members of the public'; Nyoni at [74]; and
d)Mr Nyoni's conduct viewed as a whole would reasonably be regarded as 'disgraceful or dishonourable' by Mr Nyoni's profession; Nyoni at [75].

Personal circumstances

Given Mr Nyoni's lack of participation in the proceeding, the Tribunal is not aware of his current personal circumstances. Therefore the Tribunal is unable to take his personal circumstances into consideration.

The penalty decision

In the Tribunal's view, it is appropriate in this matter to adopt a global approach to sanction, rather than imposing a separate sanction in respect of each finding as to misconduct. It is appropriate because, in the Tribunal's view, Mr Nyoni's misconduct is constituted by a course of behaviour rather than separate and distinct instances.
In the Tribunal's view, in consideration of all of the matters set out at [29] [40] above, it is necessary to cancel Mr Nyoni's registration. Although not a necessary finding for cancellation, the Tribunal does find that Mr Nyoni is permanently or indefinitely unfit for the practice of pharmacy. In the Tribunal's view, Mr Nyoni's conduct is sufficiently serious to justify this type of sanction. In particular, the behaviour occurred over an extensive period of time repeatedly despite Mr Nyoni being informed on a number of occasions that the behaviour ought to cease; (Nyoni at [67]). It was therefore deliberate and intentional in nature in relation to which Mr Nyoni has never exhibited any morsel of remorse or insight.
It cannot be said in the circumstances that his misconduct is some 'defect' which has or could be overcome; Chen at [20].
The findings of the Tribunal also do not support the position that the conduct arose as a result of carelessness, inadvertence, ignorance or the like. Conduct which arises in those instances may dictate a less severe sanction as being appropriate in order to protect the public. The circumstances surrounding Mr Nyoni's misconduct do not fall within that category.
In the Tribunal's view any lesser sanction would be insufficient to deter Mr Nyoni from further engaging in the offending behaviour so as to protect the public. Indeed, measures were taken to protect the public including the revocation of Mr Nyoni's authority to deal with Schedule 8 drugs and conditions were imposed on his registration, both of which he chose to ignore. The Tribunal therefore has no confidence that the imposition of conditions on Mr Nyoni's registration would be an adequate protection of the public.
Suspension is also not an appropriate sanction in the context of this matter in the Tribunal's view. That is because if the Tribunal were to impose a suspension, it would be on the basis that Mr Nyoni would be fit for the practice of pharmacy at the conclusion of the suspension period. The Tribunal is not able to be confident of that fact. This is particularly so given the lack of participation by Mr Nyoni in the proceeding and therefore the complete absence of evidence from him that at the end of a period of suspension he would be a fit and proper person to hold registration in the profession. To be so satisfied the Tribunal would have required evidence from Mr Nyoni of his willingness to respect and comply with decisions of the regulators of his profession; his insight and understanding into the seriousness of his misconduct; and a commitment not to engage further in the misconduct. In the absence of such evidence and in the context of the seriousness of the misconduct, in the Tribunal's view, a suspension is not an adequate protection of the public.
As for the period of disqualification, the Tribunal accepts the Board's submissions that a period of two years is appropriate. In the Tribunal's view a period of two years is not insignificant, but nor is it excessive in the circumstances of this matter. In the Tribunal's view it achieves the appropriate balance of protection of the public whilst still allowing Mr Nyoni the opportunity to reengage with his profession in the not too distant future if he chooses to do so and can satisfy the Board that he is fit to practise.
In the Tribunal's view, a two year disqualification period also achieves the object of protecting the public from similar misconduct by other practitioners by appropriately acting as a deterrent to others in the vocation, and will uphold public confidence in the standards of the profession by appropriately denouncing the misconduct; Singh at [97].
Lastly, the Tribunal accepts the submissions made by the Board that it is also appropriate to reprimand Mr Nyoni. A reprimand sends a message to the profession and to the community of the Tribunal's emphatic indication of its disapproval of My Nyoni's misconduct.

Orders

1.Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (WA) Act 2010, Mr Emson Clever Nyoni is reprimanded.
2.Pursuant to s 196(2)(e) of the Health Practitioner Regulation National Law (WA) Act 2010, the registration of Mr Emson Clever Nyoni is cancelled.
3.Pursuant to s 196(4)(a) of the Health Practitioner Regulation National Law (WA) Act 2010, Mr Emson Clever Nyoni is disqualified from applying for reregistration as a registered health practitioner for a period of two years.
4.The Pharmacy Board of Australia is to file and serve its written submissions in relation to costs on or before 27 June 2019.
5.The respondent is to file and serve his responsive submissions in relation to costs on or before 11 July 2019.
6.Subject to any further order, any costs application is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act2004 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS C WALLACE, SENIOR MEMBER

13 JUNE 2019