PHARMACY BOARD OF AUSTRALIA and TEH - [2025] WASAT 30 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION:   PHARMACY BOARD OF AUSTRALIA and TEH [2025] WASAT 30 (S)
MEMBER:   PRESIDENT GLANCY
DR M EVANS-BONNER, SENIOR MEMBER
MS E PERRELLA, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   28 MAY 2025
FILE NO/S:   VR 69 of 2023
BETWEEN:   PHARMACY BOARD OF AUSTRALIA
Applicant

AND

ZHI-REN TEH
Respondent

Catchwords:

Vocational regulation - Pharmacist - Disciplinary proceedings - Professional misconduct - Penalty - Practitioner reprimanded - Practitioner's registration cancelled - Practitioner disqualified from applying for registration for a period of 18 months - Timing of cancellation of registration - Where registration was improperly obtained - Whether requirement to dispose of proprietary interest in pharmacy business justifies delay in cancelling registration - Whether delaying cancellation of registration is in the public interest - Proposed undertaking not to practise - Registration cancelled with immediate effect

Costs - Where parties agree as to appropriate costs order

Legislation:

Health Practitioner Regulation National Law (Western Australia), s 196(1)(b)(iii), s 196(1)(b)(v), s 196(2)(a), s 196(2)(e), s 196(4)(a)
Pharmacy Act 2010 (WA), s 54
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(2)

Result:

Form of orders consequent upon findings in Primary Reasons determined
Registration to be cancelled with effect from the date of publication of these reasons
Practitioner to pay a contribution to the applicant's costs

Category: B

Representation:

Counsel:

Applicant	:	Mr EM Heenan SC & Mr T de Bes
Respondent	:	Ms R Young SC & Mr J Birch

Solicitors:

Applicant	:	Perth Legal Pty Ltd
Respondent	:	Meridian Lawyers (Perth)

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

Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)
Dental Board of Australia and Kat [2023] VR 100
Legal Profession Complaints Committee and Bannerman [2018] VR 236
Legal Services and Complaints Committee and Amidzic [2023] VR 11
Medical Board of Australia and Lagrange [2021] WASAT 161 (S)
Medical Board of Australia and McCarthy [2020] WASAT 12 (S)
Nursing and Midwifery Board of Australia and Burwood [2023] WASAT 36 (S)
Nursing and Midwifery Board of Australia and M [2023] WASAT 106
Pharmacy Board of Australia and Frank Balestra [2013] VR 196
Pharmacy Board of Australia and Hegde [2020] WASAT 89
Pharmacy Board of Australia and Teh [2025] WASAT 30
Psychology Board of Australia and Fawcett [2023] WASAT 86
Veterinary Practice Board of Western Australia and Walton [2023] VR 117
Veterinary Surgeons Board and Moore [2020] VR 80
Veterinary Surgeons Board and Vandenburgh Veterinary Group Pty Ltd [2020] VR 65
Veterinary Surgeons Board of Western Australia and Hall [2019] VR 57

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and identification of the issue to be determined

On 11 April 2025, we published our reasons[1] for finding that Mr Teh, the Practitioner (also referred to as the Respondent), had engaged in professional misconduct and concluding that the appropriate penalty to be imposed for the misconduct was a reprimand, the cancellation of his registration as a pharmacist, and his disqualification from applying for registration as a pharmacist for a period of 18 months.
[1] Pharmacy Board of Australia and Teh [2025] WASAT 30 (Primary Reasons).
At the time of handing down our decision we said that we would hear from the parties as to the form of orders which we should make to give effect to the decision and whether we could make orders as to costs with the agreement of the parties, or whether we needed to programme the issue of costs for a hearing.
The parties have been unable to agree as to the orders which should be made to give effect to the findings set out in the Primary Reasons. The issue between them is when the cancellation of the Practitioner's registration should take effect.
The Practitioner submits that the cancellation of his license should not take effect until 31 July 2025 so that he can sell his two pharmacies before the cancellation takes effect.
The Applicant submits that the cancellation should take effect soon as possible.
The parties have reached agreement as to costs orders which are to be made.

Outcome

For the reasons which we have set out below we find that the Practitioner's registration should be cancelled with effect from the date on which these reasons are published.
We have also determined that it is appropriate to make the agreed costs order. We will, therefore, make an order that the Respondent pay a contribution to the Applicant's costs of the proceedings under s 87(2) of the State Administrative Tribunal Act 2004 (WA), fixed in the amount of $30,000 to be paid within 28 days or in a period as otherwise agreed by the applicant.

Materials considered in determining this application and determination on the documents

We determined this part of the proceeding on the documents as permitted by s 60(2) of the State Administrative Tribunal Act. In doing so we had regard to the following documents:
1.Affidavit of Stuart James Mihulka dated 12 May 2025;
2.Affidavit of Zhi-Ren Teh dated 12 May 2025;
3.Respondent's outline of submissions on orders following decision on liability dated 12 May 2025;
4.Respondent's minute of proposed orders dated 12 May 2025;
5.Applicant's submissions in response to Respondent's application to stay order cancelling his registration as a pharmacist dated 12 May 2025;
6.Applicant's minute of proposed orders dated 24 April 2025.
Although the Applicant's submissions are said to be in response to the Practitioner's application to stay the cancellation of his registration, no formal application for a stay was made by the Respondent. Rather, the Respondent has asked that the orders giving effect to findings in the Primary Reasons allow the cancellation to commence on 31 July 2025.

Our consideration of the submissions

As we have set out in our Primary Reasons, the Practitioner falsely declared on his annual applications for renewal of his registration as a pharmacist that he met the 'recency of practice' requirements necessary for registration on seven occasions when he knew that that declaration was false. In doing so he obtained registration as a pharmacist on each occasion.
He accepted, and we found, that doing so amounted to professional misconduct. We described his conduct as 'extremely serious' and said that, among other things, the penalty to be imposed needed to deter others from engaging in like conduct especially given the difficulty faced by the Applicant in auditing practitioners for compliance.[2]
[2] Primary Reasons [176].
As we identified at [124] of the Primary Reasons, the effect of s 54 of the Pharmacy Act 2010 (WA) is that the Practitioner, who currently owns two pharmacies, will commit an offence if he holds a proprietary interest in a pharmacy business and is not a pharmacist. It is accepted that he will cease to be a pharmacist, for the purposes of that section, upon the cancellation of his registration.
The Practitioner submits that we should order that the cancellation of his registration will take effect from 31 July 2025 in order to allow him time to effect the sale of the pharmacies.
The Practitioner submits that there are three reasons for allowing the cancellation to take effect from 31 July 2025. They are:
1.the 'unfortunate reality' is that he is unlikely to be able to facilitate the disposition of his interest in the two pharmacies unless the cancellation is delayed and has requested until 31 July 2025 to give him the opportunity to do so;[3]
2.the Practitioner has acted promptly to try to dispose of his interests in the pharmacies and has not caused the delay; and
3.the delay is consistent with the public interest to ensure compliance with the required Pharmacy Registration Board and the Department of Health and Aged Care's regulatory processes; the Practitioner will undertake not to practice as a pharmacist[4] and the effect of that undertaking will be that the Practitioner will 'sit out' from practicing as a pharmacist for a period which is longer than the 18 months which the Tribunal determined is appropriate.
[3] Affidavit of Stuart James Mihulka, para 38.
[4] The Affidavit of Zhi-Ren Teh dated 12 May 2025 para 17 and attachment 'ZRT 1'.
The Practitioner also submits that the delay in the cancellation order taking effect is not unusual in disciplinary matters.
The Practitioner submits that placing the Practitioner at risk of breaching the pharmacy legislation despite his every attempt to act reasonably and to prepare for the outcome, in circumstances where he will give the undertaking not to practice, would be contrary to the public interest in circumstances where he has been cooperative and is remorseful for his conduct.
The public interest which is said to be served by allowing the Practitioner the time to complete the sale of his interests in the pharmacies has not been identified by the Practitioner. There is no evidence before us that without these pharmacies being able to continue to operate, the public will not have ready access to pharmaceutical services. That does not seem to be the public interest advanced in this application. We accept that there is a public interest in the continued employment of staff in the two pharmacies. It is undoubtedly preferable that the Tribunal not place the Practitioner in a position where he will, or is likely to, commit an offence. However, cancellation of his registration while he owns the pharmacies will not, of itself, cause him to do so. That risk would only arise if the Practitioner continued to operate the pharmacies after his registration is cancelled. Even accepting that the Practitioner has acted promptly to find a buyer for, and to complete the sale of his interests in the pharmacies, allowing the sale to be completed before the registration is cancelled in our view primarily serves his, and his family's private commercial interests.
In those circumstances, we need to consider whether there is any reason why the cancellation should not be allowed to take effect after 31 July 2025.
We accept that there have been cases where cancellation of a practitioner's registration has taken effect some time after the decision has been delivered. The Practitioner referred to several cases where orders were made for the cancellation of a practitioner's registration or practising certificate where the cancellation was to take effect some time after the orders were made. In all of those cases, the orders were made with the consent of the parties. In only two of the cases did the agreed facts which were attached to the orders provide an explanation for the delay. In each case the reason was connected to a public benefit.
In Legal Services and Complaints Committee and Amidzic[5], the practitioner involved had been engaged to represent clients in court proceedings up until the date of the cancellation. There would have been inconvenience and cost to the clients if another solicitor had had to take over the matters and disruption to the courts if proceedings had to be vacated or adjourned.
[5] Legal Services and Complaints Committee and Amidzic [2023] VR 11.
In the other case, Veterinary Surgeons' Board of Western Australia and Hall[6] it was said that the delay was necessary to minimise prejudice to the public by allowing the practitioner time to make arrangements in respect of existing appointments and to engage alternative staff, in particular because he was, until that were to occur, the only person in the rural area with the qualifications to operate certain equipment.
[6] Veterinary Surgeons Board of Western Australia and Hall [2019] VR 57 at [86(c)] of the Agreed Facts.
In the remaining cases referred to by the Practitioner[7], the parties had agreed to the orders made and the Tribunal made the orders without any explanation for the timing of the commencement of the cancellation.
[7] Veterinary Practice Board of Western Australia and Walton [2023] VR 117; Dental Board of Australia and Kat [2023] VR 100; Veterinary Surgeons Board and Moore [2020] VR 80; Veterinary Surgeons Board and Vandenburgh Veterinary Group Pty Ltd [2020] VR 65; Legal Profession Complaints Committee and Bannerman [2018] VR 236; Pharmacy Board of Australia and Frank Balestra [2013] VR 196.
There do not appear to be any cases where the matter has been contested where the Tribunal has made an order allowing the cancellation of a practitioner's registration to take effect some time after the orders were made.
We agree with the Applicant that the usual position is that the cancellation takes effect at the time the Tribunal hands down its decision or in the final orders made shortly after the publication of the reasons for decision.[8] But that does not mean that there would never be a case where the Tribunal would allow the cancellation to take effect at a time after the orders in respect of penalty are made.
[8] See, for example, Nursing and Midwifery Board of Australia and M [2023] WASAT 106; Psychology Board of Australia and Fawcett [2023] WASAT 86; Nursing and Midwifery Board of Australia and Burwood [2023] WASAT 36 (S); Medical Board of Australia and Lagrange [2021] WASAT 161 (S); Pharmacy Board of Australia and Hegde [2020] WASAT 89; Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S); and Medical Board of Australia and McCarthy [2020] WASAT 12 (S).
In this particular case, and given the serious nature of the Practitioner's conduct, we do not think it is appropriate to make orders in the terms proposed by the Practitioner. We have already found that we could give little weight to the financial detriment that the Practitioner would suffer if forced to close his pharmacies or sell them under some duress in the event that his registration is cancelled.[9] While he was not to be punished for deciding not to take steps to sell them while the disciplinary proceedings were on foot and before the outcome was known, his choice not to do so could not dictate the outcome of the disciplinary proceeding as to the appropriate penalty.[10] Nor can it now dictate the time at which the penalty is to commence.
[9] Primary Reasons [144].
[10] Primary Reasons [167] and [168].
We do not consider that the fact that the undertaking offered would result in the Practitioner being out of practice for effectively 20 months rather than the 18 months which we have found is the appropriate period of disqualification before the Practitioner is eligible to reapply alters our view that there is no adequate reason in this case to delay or defer the commencement of the cancellation. Allowing the practitioner to choose the time at which their cancellation of their registration will commence so as to minimise the consequences of the cancellation in circumstances where we have had regard to those consequences (albeit that we gave them little weight) in determining the appropriate period of disqualification from applying for reregistration, would not be appropriate.
For the sake of completeness, the Applicant submits that we could not rely on the undertaking offered by the Practitioner not to work as a pharmacist because he had been dishonest with the Board over a long period of time and cannot be taken at his word. We do not accept that submission because we have found that the Practitioner is remorseful for the dishonesty which resulted in the finding of professional misconduct and is unlikely to repeat it.
We are of the view that the Practitioner's registration as a pharmacist should be cancelled from the date on which these reasons are published.

Orders to give effect to findings in our Primary Reasons

We will make the following orders to give effect to the finding made in our Primary Reasons and the conclusion which we have reached as to the timing of the cancellation of the Practitioner's registration:
1.The Tribunal finds that the Respondent behaved in a way that constitutes professional misconduct within the meaning of section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (Western Australia) (National Law), when he provided false information and made false declarations regarding his compliance with the Board's Recency Standards in 7 separate annual registration renewal applications from 2011 to 2017.
2.The Tribunal finds that the Respondent's registration was improperly obtained in terms of s196(1)(b)(v) of the National Law in 2011 to 2017, as the Respondent gave the Applicant information or a document that was false or misleading in a material particular.
3.Pursuant to s 196(2)(a) of the National Law, the Respondent is reprimanded.
4.Pursuant to s 196(2)(e) of the National Law, the Respondent's registration as a pharmacist is cancelled with effect from the date on which these orders are made.
5.Pursuant to s 196(4)(a) of the National Law, the Respondent is disqualified from reapplying for registration as a pharmacist for a period of 18 months from the date on which his registration is cancelled.
6.The application is otherwise dismissed.

Costs

The parties have consented to the following order dealing with the costs of the proceeding being made:
The Respondent is ordered to pay a contribution to the Applicant's costs of the proceedings under s 87(2) of the State Administrative Tribunal Act 2004 (WA), fixed in the amount of $30,000 to be paid within 28 days or in a period as otherwise agreed by the applicant.
We have formed the view that it is appropriate to make the costs order in the terms sought.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
HJ
Associate to the Hon Justice Glancy
28 MAY 2025