Pharmacy Board of Australia v Arulogun

In the matter of Pharmacy Board of Australia versus Arulogun, the Federal Court was tasked with determining the appropriate disciplinary action to be imposed on a pharmacist who had been found to have engaged in criminal activity, including the supply of a prohibited substance. The case arose under the Health Practitioner Regulation National Law Act 2009, with a reference made to the Tribunal under section 193 of the Act. The legal issues before the court included the function of the Tribunal when the parties agree upon the terms of a proposed order, the independent discretion of the Tribunal, and the appropriate level of sanction to be imposed.

The court first examined the function of the Tribunal in such circumstances, holding that while the parties had agreed upon the terms of the proposed order, the Tribunal retained an independent discretion to impose sanctions. The court also considered the orders limited to those authorised by section 196 of the Act and the constitution of the Tribunal, including the requirement for assessors under sections 398B, 398I, 398L and 398R of the Health Practitioners (Disciplinary Proceedings) Act 1999. The court held that the proposed order contained conditions that were not authorised by section 196, and that the pharmacist had not been given an opportunity to give similar undertakings to the Board.

After considering the appropriate level of sanction, the court found that a two-year period of disqualification from applying for re-registration was appropriate, taking into account the other restrictions imposed on the pharmacist, including his undertaking not to own, control or profit from any pharmacy, other than as an employed pharmacist for a period of five years. The court also held that there was no jurisdiction to apply conditions to any re-registration of the respondent, and made observations on the form of the order. The application was adjourned until 17 January 2014, with liberty given to the parties to advise the Tribunal in writing about the provision of undertakings to the Board and whether such undertakings are acceptable to the Board, and to provide any further submissions on the orders now proposed.