Pharmacy Practice Act 2006 (NSW)
An Act to provide for the registration of pharmacists and to regulate pharmacy businesses; to repeal the Pharmacy Act 1964; and for other purposes.
This Act is the Pharmacy Practice Act 2006.
This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2).
Schedule 7.12 and section 156 commence on the date of assent to this Act.
The object of this Act is to protect the health and safety of members of the public in relation to the practice of pharmacy including by providing mechanisms to ensure that pharmacists are fit to practise.
In this Act:
Section 140 makes special provision with respect to the application for the purposes of this Act of the Criminal Records Act 1991 in respect of criminal findings.
(a) a proprietary interest (including a proprietary interest as a sole proprietor, partner, director, member or shareholder, or trustee or beneficiary), and
(b) any interest that is prescribed by the regulations as constituting a pecuniary interest for the purposes of this Act,
but does not include the following:
(c) (except in clause 9 of Schedule 3) any interest in a pharmacy business that a person has by virtue of the person being:
(i) a member of a friendly or other society that has a pecuniary interest in such a business permitted by section 26, or
(ii) a member of a listed corporation within the meaning of the Corporations Act 2001 of the Commonwealth that carries on or has a pecuniary interest in such a business under section 27,
(d) (except in section 31 (2) and clause 9 of Schedule 3) any interest in a pharmacy business that a person has by virtue of the person being a member of a body corporate (other than a listed corporation referred to in paragraph (c) (ii)) that carries on or has a pecuniary interest in such a business under section 27, but only if the person was a member of the body corporate before the commencement of Schedule 7.12 to this Act,
(e) any interest that is prescribed by the regulations as not constituting a pecuniary interest for the purposes of this Act.
(a) such portion (if any) of those premises in or on which the person sells or offers for sale goods of any kind, and
(b) a professional services room,
but does not include any such premises located in a public hospital controlled by a public health organisation (within the meaning of the Health Services Act 1997).
(a) the preparation and packaging of drugs, or the packaging of drugs, by or under the personal supervision of a registered pharmacist, for supply to individual patients or to a health care facility for supply to patients or residents of that facility, and
(b) the storage of those drugs.
In this Act, a reference to a pharmacy business is a reference to a pharmacy business carried on in a pharmacy.
Notes included in this Act do not form part of this Act.
This Act does not limit or otherwise affect the operation of the Mutual Recognition laws.
A person who is not a registered pharmacist must not indicate that the person practises pharmacy or is qualified to practise pharmacy.
Maximum penalty: 50 penalty units.
Without limiting the ways in which a person may be taken to have indicated that the person practises pharmacy or that the person is qualified to practise pharmacy, a person is taken to have so indicated if the person uses:
(a) the title of “chemist” or any other title or name, initials, word, symbol or description that (having regard to the circumstances in which it is used) indicates, or is capable of being understood to indicate, or is calculated to lead a person to infer, that the person is qualified to practise pharmacy or that the person practises pharmacy, or
(b) the title of “apothecary”, “compounding chemist”, “dispensing chemist”, “dispensing druggist”, “druggist”, “homoeopathic chemist”, “pharmaceutical chemist”, “pharmaceutist” or “pharmacist”.
A person has the necessary qualifications for registration as a pharmacist if the person:
(a) has the educational qualifications required by this section, and
(b) satisfies the requirements of this section as to practical experience in pharmacy.
A person has the educational qualifications required by this section if the person:
(a) has such qualifications as may be prescribed by the regulations for the purposes of this paragraph, or
(b) has successfully completed a course of study that is recognised by the Board as meeting criteria prescribed by the regulations for the purposes of this paragraph, or
(c) has such qualifications as may be approved by the Board on the recommendation of an accreditation body recognised by the Board for the purposes of this section, or
(d) has passed an examination arranged or approved by the Board to assess the person’s competence to practise pharmacy.
A person satisfies the requirements of this section as to practical experience in pharmacy if the person, after attaining the educational qualifications required by this section, gains experience in dispensing and compounding medical prescriptions that the Board regards as sufficient to enable the person to carry on a pharmacy business in New South Wales.
An educational or training institution may apply to the Board for the recognition by the Board (under subsection (2) (b)) of a course of study offered by the institution. The institution may apply to the Administrative Decisions Tribunal for a review of the decision of the Board on the application.
In determining for the purposes of subsection (2) (b) whether a particular course of study meets the criteria prescribed by the regulations, the Board may have regard to and rely on any findings made on an assessment prepared for the Board in respect of the course of study.
In this section:
For the purposes of this Act, a person is competent to practise pharmacy only if the person has sufficient physical capacity, mental capacity and skill to practise pharmacy and has sufficient communication skills for the practice of pharmacy, including an adequate command of the English language.
For the purposes of this Act, a person suffers from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the person’s physical or mental capacity to practise pharmacy.
For the purposes of this Act, a person who habitually abuses alcohol or is addicted to a deleterious drug is taken to suffer from an impairment.
A person is entitled to registration as a pharmacist if the Board is satisfied that the person has the necessary qualifications for registration as a pharmacist, and is of good character.
Registration under this section is
An entitlement to full registration does not prevent conditions being imposed on that registration in accordance with this Act.
Under section 20 of the Mutual Recognition Act 1992 of the Commonwealth a person is entitled to be registered as a pharmacist if the person is registered in another State or a Territory for an equivalent occupation (if that State or Territory participates in the mutual recognition scheme). The entitlement arises once the person lodges a notice under section 19 of that Act and, until registered under this Act, the person is then deemed (by section 25 of that Act) to be registered. See also the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.
The Board may grant registration for the purposes of this Act.
Part 4 of the Licensing and Registration (Uniform Procedures) Act 2002 (the
The regulations may make provision for or with respect to such matters concerning registration as are relevant to the operation of Part 4 of the applied Act.
Schedule 1 has effect with respect to registration under this Act.
Registration as a pharmacist may be granted to a person who has attained the educational qualifications required by section 8, for the purpose of enabling the person to gain the practical experience in pharmacy required by that section for full registration as a pharmacist.
Registration under this section is
Supervised registration is granted by the Board by a grant of a certificate of supervised registration.
A person granted supervised registration is a registered pharmacist until the registration expires or is cancelled. Supervised registration expires on the date stated in the certificate or such later date as may be fixed by the Board.
The Board may impose such conditions as it thinks fit on a person’s supervised registration and may at any time remove, add to or vary those conditions by notice in writing to the registered person.
The Board may cancel a person’s supervised registration for any reason that the Board considers proper. Cancellation does not affect any application for full registration by the person.
Registration as a pharmacist may be granted:
(a) to a person entitled to full registration, pending the Board’s determination of the person’s application for full registration, or
(b) to a person who will be entitled to full registration when a degree, diploma, certificate or other academic award to which the person is entitled is granted or conferred, pending its grant or conferral.
Registration under this section is
Provisional registration is granted by the Board or the President. In the President’s absence it can be granted by any member of the Board authorised by the Board to do so. Provisional registration is granted by the grant of a certificate of provisional registration.
A person granted provisional registration is a registered pharmacist until the registration expires or is cancelled. Provisional registration expires on the date stated in the certificate or such later date as may be fixed by the Board.
The Board may impose such conditions as it thinks fit on a person’s provisional registration and may at any time remove, add to or vary those conditions by notice in writing to the registered person.
The Board may cancel a person’s provisional registration for any reason that the Board considers proper. Cancellation does not affect any application for registration by the person.
If a person granted provisional registration is granted full registration before the person’s provisional registration expires, the person’s full registration dates from the granting of provisional registration, unless the Board decides otherwise.
Registration for a limited period may be granted to a person who is not normally resident in New South Wales, for the purpose of enabling the person to carry out educational or research activities or such other activities as the Board considers to be in the public interest.
Registration under this section is
Temporary registration can only be granted to a person:
(a) who is registered or certified as a pharmacist in accordance with a law in force in the person’s normal place of residence providing for the registration or certification of pharmacists, or
(b) who holds such qualifications or has such experience in the practice of pharmacy as the Board considers satisfactory for the purposes of temporary registration.
Temporary registration is granted by the Board by the grant of a certificate of temporary registration.
A person granted temporary registration is a registered pharmacist until the temporary registration expires or is cancelled. Temporary registration expires on the date stated in the certificate unless the period of temporary registration is extended.
The Board may extend and further extend a period of temporary registration by the issue of a further certificate of temporary registration.
The Board may cancel a person’s temporary registration for any reason that the Board considers proper. Cancellation does not affect any application for full registration by the person.
The Board may impose such conditions as it thinks fit on the temporary registration of a person and may at any time remove, add to or vary those conditions by notice in writing to the registered person.
The Board may refuse to register a person who would otherwise be entitled to full registration if:
(a) the Board is of the opinion, following an inquiry under Schedule 1, that the person is not competent to practise pharmacy or suffers from an impairment, or
(b) the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the Board is of the opinion that the circumstances of the offence are such as to render the person unfit in the public interest to practise pharmacy, or
(c) the person’s registration under a health registration Act has been cancelled or suspended because of conduct that would (if the person were a registered pharmacist) authorise cancellation or suspension of the person’s registration under this Act, or
(d) the person’s registration or certification under a pharmacists registration law has been cancelled or suspended because of conduct that would (if it occurred in New South Wales and the person were a registered pharmacist) authorise cancellation or suspension of the person’s registration under this Act.
As an alternative to refusing to register a person under subsection (1), the Board may grant the person registration subject to conditions if the Board considers that refusal of registration is not warranted and that the person should be granted registration subject to appropriate conditions.
Conditions of registration may relate to the duration of registration, the aspects of the practice in which the person may be engaged, and any other matters, as the Board thinks appropriate.
The Mutual Recognition laws also provide for the imposition of conditions on registration. Conditions can also be imposed on a person’s registration as a result of disciplinary proceedings to which the person has been subject.
In this section:
A person ceases to be registered as a pharmacist if the person’s name is removed from the Register. A reference in this Act to the cancellation of a pharmacist’s registration is a reference to the removal of the pharmacist’s name from the Register.
A person whose registration as a pharmacist is suspended is taken not to be a registered pharmacist during the period of the suspension, except for the purposes of Part 4 (Complaints and disciplinary proceedings).
A person cannot apply for registration (and any such application must be rejected) if:
(a) the person’s registration is cancelled pursuant to an order of the Chairperson or a Deputy Chairperson, the Tribunal or the Supreme Court, or
(b) the Chairperson or a Deputy Chairperson, the Tribunal or the Supreme Court orders that the person not be re-registered.
The only way such a person can again be registered is on a review under Division 3 of Part 6 of the order by which the person’s registration was cancelled.
A person who is aggrieved by any of the following decisions of the Board may appeal to the Tribunal against the decision:
(a) the Board’s refusal to grant the person full registration,
(b) the Board’s refusal to grant the person supervised registration,
(c) the Board’s refusal to grant the person temporary registration,
(d) the Board’s decision to refuse to register the person under section 16 or to grant the person registration subject to conditions under that section,
(e) the Board’s cancellation of the person’s supervised registration, provisional registration or temporary registration,
(f) the Board’s refusal to register the person under clause 22 (Entitlement to re-registration if fee paid) of Schedule 1.
An appeal must be made within 28 days (or such longer period as the Chairperson may allow in a particular case) after notice of the decision is given to the person. The appeal is to be lodged with the Registrar who is to refer it to the Tribunal.
If the decision in respect of which an appeal is made was made as a consequence of an inquiry held by the Board, the appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given.
An appeal does not affect any determination with respect to which it is made until the appeal is determined.
When it determines an appeal, the Tribunal may dismiss the appeal or order that the decision of the Board be revoked and replaced by a different decision made by the Tribunal and specified in the order. The Tribunal may also make such ancillary orders as it thinks proper.
The Tribunal’s decision is taken to be a decision of the Board (but this does not confer a right of appeal under this section in respect of the Tribunal’s decision).
No appeal lies under this Act against a decision of the Board under the Mutual Recognition laws in relation to its functions under that Act.
The Mutual Recognition laws provide that a person may, subject to the Administrative Appeals Tribunal Act 1975 of the Commonwealth, apply to the Administrative Appeals Tribunal for a review of a decision of a local registration authority in relation to its functions under the Mutual Recognition laws. Those functions include registration, the imposition or waiver of conditions on registration and the postponement, refusal or reinstatement of registration.
A registered pharmacist must not use any certificate, diploma, membership, degree, licence, letters, testimonial or other title, status, document or description in relation to himself or herself as a pharmacist or the practice of pharmacy other than:
(a) those (if any) that the Board from time to time authorises the pharmacist to use, or
(b) the description of “apothecary”, “chemist”, “compounding chemist”, “dispensing chemist”, “dispensing druggist”, “druggist”, “homoeopathic chemist”, “pharmaceutical chemist”, “pharmaceutist” or “pharmacist”.
Maximum penalty: 10 penalty units.
A registered pharmacist must not use the title “doctor” in the course of the practice of pharmacy unless the pharmacist is the holder of a qualification conferred by a university that entitles the pharmacist to use that title and that qualification is a recognised qualification at the time the pharmacist uses the title.
Maximum penalty: 10 penalty units.
In subsection (2):
(a) a qualification that is prescribed by the regulations as a recognised qualification, or
(b) when no qualification is prescribed under paragraph (a), a qualification that is for the time being recognised by the Board for the purposes of this section.
See also section 105 (Use of misleading titles etc) of the Medical Practice Act 1992.
A corporation must not indicate that it is a pharmacy business unless it is:
(a) a pharmacists’ body corporate that carries on a pharmacy business, or
(b) a friendly or other society that has a pecuniary interest in a pharmacy business permitted by section 26 and that carries on that business, or
(c) a body corporate that carries on a pharmacy business under section 27.
Maximum penalty: 50 penalty units.
A person must not indicate that a corporation is a pharmacy business if the person knows, or ought reasonably to know, that any such indication by the corporation itself would be a contravention of subsection (1).
Maximum penalty: 50 penalty units.
A partner or member of a firm must not indicate that the firm is a pharmacy business unless the firm is a pharmacists’ partnership that carries on a pharmacy business.
Maximum penalty: 50 penalty units.
This section does not apply to a person who has a pecuniary interest in a pharmacy business as referred to in section 25 (5), but only in relation to indications made in the course of, and in relation to, carrying on that business.
The Board may, following consultation with the pharmacy profession, establish a code of professional conduct setting out guidelines that should be observed by registered pharmacists in their professional practice. The Board may from time to time amend or replace a code of professional conduct following consultation with the pharmacy profession.
The Minister may require the Board to develop guidelines relating to any conduct of registered pharmacists that the Minister considers should be the subject of a code of professional conduct.
For that purpose, the Minister may:
(a) direct the Board to establish a code of professional conduct, or
(b) direct the Board to amend or replace a code of professional conduct,
so that the code includes guidelines relating to that conduct.
The Board is to comply with any such direction of the Minister.
The provisions of a code of professional conduct are a relevant consideration in determining for the purposes of this Act what constitutes proper and ethical conduct by a pharmacist.
The procedure for the establishment of a code of professional conduct is as follows:
(a) the Board is to prepare a proposed code in draft form and is to prepare an impact assessment statement for the proposed code in accordance with such requirements as the Minister may from time to time determine,
(b) the draft code and impact assessment statement are to be publicly exhibited for a period of at least 21 days,
(c) the Board is to seek public comment on the draft code during the period of public exhibition and public comment may be made during the period of public exhibition and for 21 days (or such longer period as the Board may determine) after the end of that period,
(d) the Board is to submit the draft code to the Minister for approval together with a report by the Board giving details of public comment received during the period allowed for public comment and the Board’s response to it,
(e) the Board is not to establish the draft code as a code of professional conduct unless the Minister approves the draft.
The procedure for the amendment or replacement of a code of professional conduct is the same as for the establishment of the code unless the Minister otherwise directs in respect of a particular amendment.
Subject to subsection (2), a person must not carry on a pharmacy business unless:
(a) the premises on which the pharmacy business is carried on are the subject of a current approval of the Board, and
(b) all holders of a pecuniary interest in the pharmacy business are registered in the Register of Pharmacies.
Maximum penalty: 50 penalty units.
A person who has lodged an application under clause 1 (1) (b) of Schedule 2 may carry on the pharmacy business to which the application relates pending the Board’s determination of the application if:
(a) the premises at which the business is carried on are the subject of a current approval of the Board, and
(b) any holder of a pecuniary interest in the business who is not the subject of the application is registered in the Register of Pharmacies.
Schedule 2 has effect with respect to approval of premises and registration of pecuniary interests.
A person who intends to acquire a pecuniary interest in a pharmacy business (other than such an interest referred to in section 25 (4)) must, at least 14 days before acquiring the interest, give written notice to the Board of the following matters:
(a) the nature of the interest and the date on which it is intended to be acquired,
(b) the basis on which the person is entitled to hold the interest under this Act (for example, as a registered pharmacist, a pharmacists’ body corporate or a friendly or other society under section 26).
Maximum penalty: 50 penalty units.
A person who acquires a pecuniary interest in a pharmacy business as referred to in section 25 (4) must, within 28 days after acquiring the interest, give written notice to the Board of that fact, the nature of the interest concerned and the date on which it was acquired.
A person who ceases to have a pecuniary interest in a pharmacy business must, within 14 days after doing so, give written notice to the Board of that fact and the nature of the interest concerned.
Maximum penalty: 50 penalty units.
The regulations may prescribe additional matters to be included in a notice under this section.
A person must not own or otherwise have a pecuniary interest in a pharmacy business (including as a partner or member of a firm) unless as one of the following:
(a) a registered pharmacist,
(b) a partner in a pharmacists’ partnership,
(c) a pharmacists’ body corporate or a member of a pharmacists’ body corporate.
Maximum penalty: 100 penalty units.
Subsection (1) does not prevent a person from having a pecuniary interest in a pharmacy business in circumstances prescribed by the regulations.
Subsection (1) does not prevent a person from having a security interest in respect of a pharmacy business.
Subsection (1) does not prevent a person who:
(a) is the executor, administrator or trustee of the estate of a deceased person who carried on a pharmacy business on the day of his or her death, or
(b) is appointed or authorised under the laws relating to bankruptcy to administer the property of a person who carried on a pharmacy business and who has become bankrupt,
from having a pecuniary interest in that business during a period not exceeding 6 months or such further period as the Board may authorise in writing.
If:
(a) a person’s registration as a pharmacist is cancelled or suspended, and
(b) the person owned or otherwise had a pecuniary interest in a pharmacy business immediately before the cancellation or suspension took effect,
subsection (1) does not prevent the person from having a pecuniary interest in that business during a period not exceeding 6 months immediately following the day on which the cancellation or suspension took effect.
A person who has a pecuniary interest in a pharmacy business pursuant to subsection (5) must not, during the period during which the person so holds that interest, enter or be in any premises in which that business is carried on unless the person:
(a) has the consent of the Board to do so, and
(b) complies with any conditions imposed by the Board in giving its consent.
The Board may at any time vary or revoke any such consent, or any condition imposed on any such consent.
Despite subsections (4) and (5), a person may have a pecuniary interest in a pharmacy business pursuant to those subsections only if the business is in the charge of a registered pharmacist who personally supervises the carrying on of that business.
A person who is granted supervised registration under section 13 is taken not to be a registered pharmacist for the purposes of subsection (1) during the period of that registration.
Sections 26 and 27 provide for the exemption from section 25 (1) of friendly and other societies and certain bodies corporate, respectively, in the circumstances set out in those sections.
Section 25 does not prevent a friendly society from owning or otherwise having a pecuniary interest in a pharmacy business in accordance with a written approval given by the Minister.
Such an approval must not be given unless the Minister is satisfied that:
(a) the net profits arising from the operation of the pharmacy business will be applied solely to the provision of benefits (other than benefits in the form of dividends or shares) to members of the friendly society, and
(b) the operation of the pharmacy business is justified in the interests of members of the friendly society or of members of the public, or both.
The Minister may give such an approval unconditionally or subject to conditions, and may at any time vary or revoke such an approval.
The Minister must revoke such an approval given to a friendly society if the Minister is satisfied that the net profits arising from the operation of the pharmacy business will no longer be applied solely to the provision of benefits to members of the friendly society in accordance with subsection (2) (a).
Section 25 does not prevent a friendly or other society that was, immediately before the repeal of section 27A (1) of the Pharmacy Act 1964, lawfully carrying on a pharmacy business under that provision, from owning or otherwise having a pecuniary interest in a pharmacy business.
An approval granted to a friendly or other society under section 27A (2) of the Pharmacy Act 1964 and in force immediately before the repeal of that Act is taken to be an approval granted to the friendly society or other society (as if it were a friendly society), and in force, under subsection (1).
Subsection (4) does not apply in relation to a society referred to in subsection (6) that, immediately before the repeal of section 27A of the Pharmacy Act 1964, no longer satisfied the criteria referred to in section 27A (3) (a) of that Act.
A friendly or other society to which subsection (1), (5) or (6) applies must not own or otherwise have a pecuniary interest in more than 6 pharmacy businesses.
Maximum penalty: 100 penalty units.
A pharmacy business and an associated professional services room are counted as one pharmacy business for the purposes of subsection (8).
This section applies to a body corporate that, immediately before the repeal of the Pharmacy (General) Regulation 1998, lawfully carried on a pharmacy business or had a pecuniary interest in such a business under clause 21 of that Regulation.
Section 25 does not prevent a body corporate to which this section applies from continuing to carry on such business or continuing to have such a pecuniary interest in accordance with and subject to the provisions of clause 21 of the Pharmacy (General) Regulation 1998 as in force immediately before its repeal.
The definition of
A registered pharmacist must not (whether as an individual or as a partner in a pharmacists’ partnership or a member of a body corporate) own or otherwise have a pecuniary interest in more than 5 pharmacy businesses.
Maximum penalty: 100 penalty units.
A pharmacy business and an associated professional services room are counted as one pharmacy business for the purposes of subsection (1).
Any provision in a lease or a licence, or an arrangement that creates a security interest, in respect of a pharmacy business:
(a) that requires the lessee or the licensee, or the grantor of the security interest (as the case may be), to purchase or otherwise obtain goods or services in connection with that business from the lessor or the licensor, or the grantee of the security interest, or
(b) that gives to the lessor, the licensor or the grantee power to control the manner in which that business is to be carried on (including power to determine whether or not the pharmacy may participate in any public health programs), or
(c) that gives to the lessor, the licensor or the grantee access to the books of account kept in respect of that business otherwise than for the purposes of determining whether or not the lessee, the licensee or grantor is complying with the terms and conditions of the lease, licence or arrangement, or
(d) that provides that the lessor, the licensor or the grantee is to receive any consideration that varies according to the profits or takings of that business,
is void.
Subsection (1) (b) does not affect a provision relating to the opening or closing hours of a pharmacy business that is located in a retail shopping centre.
A pharmacy business carried on on approved premises must be in the charge of a registered pharmacist who must personally supervise the carrying on of the business.
If a pharmacy business is carried on on approved premises in contravention of subsection (1):
(a) the owner of the pharmacy business is guilty of an offence, and
(b) if the pharmacist in charge of the approved premises is by the terms of the pharmacist’s employment required to be in charge of the approved premises at the time of the contravention, the pharmacist is guilty of an offence.
Maximum penalty: 100 penalty units.
It is a defence in any proceedings against an owner for a contravention of subsection (1) if the owner proves to the satisfaction of the court that the owner used all due diligence to prevent the contravention.
In this section, a reference to approved premises is a reference to premises approved under clause 1 of Schedule 2.
To avoid doubt, during any period in which a pharmacy business carried on in an associated professional services room, and the pharmacy business with which those premises are associated, operate simultaneously, subsection (1) requires each business to be in the charge of a separate registered pharmacist who must personally supervise the carrying on of each business.
A person who is granted supervised registration under section 13 is taken not to be a registered pharmacist for the purposes of this section during the period of that registration.
A registered pharmacist must, on or before the return date in each year, furnish in writing to the Board in a form approved by the Board a return for the return period specifying the following information:
(a) details of any conviction of the pharmacist for an offence in this State or elsewhere during the return period (together with details of any penalty imposed for the offence),
(b) details of the making of a sex or violence, or drug related, criminal finding against the pharmacist for an offence, in this State or elsewhere, during the return period (together with details of any penalty imposed for the offence),
(c) details of the making of a criminal finding against the pharmacist for an offence committed in the course of the practice or purported practice of pharmacy, in this State or elsewhere, during the return period (together with details of any penalty imposed for the offence),
(d) details of any criminal proceedings pending against the pharmacist at the end of the return period, in this State or elsewhere, for a sex or violence, or drug related, offence alleged to have been committed in the course of the practice or purported practice of pharmacy,
(e) details of any criminal proceedings pending against the pharmacist at the end of the return period, in this State or elsewhere, for a sex or violence offence alleged to have been committed against a minor or to involve child pornography (whether or not alleged to have been committed in the course of the practice or purported practice of pharmacy),
(f) details of any conviction of, or the making of a finding against, the pharmacist for an offence that arises out of or is connected with the supply of pharmaceutical benefits or special pharmaceutical products (within the meaning of the National Health Act 1953 of the Commonwealth) under Part VII of that Act,
(g) details of any significant illness (physical or mental) from which the pharmacist suffered at any time during the return period and that may reasonably be thought likely to detrimentally affect the pharmacist’s physical or mental capacity to practise pharmacy,
(h) details of any suspension of, cancellation of, or imposition of conditions on, the registration of the pharmacist as a pharmacist in another jurisdiction (either within Australia or elsewhere) during the return period,
(i) details of any suspension of, cancellation of, or imposition of conditions on, any registration of the pharmacist under a health registration Act during the return period,
(j) a statement as to whether the pharmacist is registered under a health registration Act as at the date of the return,
(k) a statement as to whether the pharmacist has been refused registration as a pharmacist in another jurisdiction (either within Australia or elsewhere) during the return period,
(l) a description of any pecuniary interest the pharmacist has in a pharmacy business,
(m) details of any continuing professional education undertaken by the pharmacist during the return period,
(n) such other information as may be prescribed by the regulations.
A person who holds a pecuniary interest in a pharmacy business must, on or before the return date in each year, furnish in writing to the Board in a form approved by the Board a return for the return period specifying the following information:
(a) the nature of the interest,
(b) the basis on which the person is entitled to hold the interest under this Act (for example, as a registered pharmacist, a member of a pharmacists’ body corporate, a friendly or other society under section 26 or a body corporate under section 27),
(c) the number of pharmacy businesses in which the person has a pecuniary interest,
(d) in relation to each pharmacy business the person owns, a description of the policies or systems in place to ensure safe and competent delivery of pharmacy services,
(e) such other information as the regulations may prescribe.
Maximum penalty (subsection (2)): 20 penalty units.
The Board may require a return under this section to be verified by statutory declaration.
The regulations may provide that subsection (1) (a) does not apply in respect of particular offences.
In this section:
A registered pharmacist must notify the Board in writing within 7 days after:
(a) the pharmacist is convicted of an offence or made the subject of a sex or violence, or drug related, criminal finding for an offence, in this State or elsewhere, giving details of the conviction or criminal finding and any penalty imposed for the offence, or
(b) the pharmacist is, in this State or elsewhere, convicted of, or made the subject of a criminal finding for, an offence that arises out of or is connected with the supply of pharmaceutical benefits or special pharmaceutical products (within the meaning of the National Health Act 1953 of the Commonwealth) under Part VII of that Act, giving details of the conviction or criminal finding and any penalty imposed for the offence, or
(c) criminal proceedings are commenced against the pharmacist, in this State or elsewhere, in respect of a sex or violence, or drug related, offence alleged to have been committed in the course of the practice or purported practice of pharmacy, or
(d) criminal proceedings are commenced against the pharmacist, in this State or elsewhere, in respect of a sex or violence offence alleged to have been committed against a minor or to involve child pornography (whether or not alleged to have been committed in the course of the practice or purported practice of pharmacy).
The regulations may provide that subsection (1) (a) does not apply in respect of particular offences.
As soon as practicable after a registered pharmacist is convicted of an offence or a sex or violence, or drug related, criminal finding is made against a registered pharmacist, the registrar or other proper officer of the court must (if the court is aware that the person is a registered pharmacist) notify the Board of the conviction or criminal finding together with details of any penalty imposed for the offence.
The regulations may provide that this section does not apply in respect of particular offences.
If a registered pharmacist becomes a mentally incapacitated person, the person prescribed by the regulations must cause notice of that fact to be given to the Registrar in accordance with the regulations.
The Board may, by notice in writing, direct a person:
(a) to give to the Board, within the time specified in the notice, such information as the notice requires relating to any pecuniary interest the person has in a pharmacy business, or
(b) to produce to the Board, within the time specified in the notice, any document the notice requires relating to any such interest.
A person must not:
(a) fail or refuse to comply with a direction of the Board under subsection (1) to the extent that the person is capable of complying with it, or
(b) in purported compliance with such a direction, knowingly give information or produce a document that is false or misleading.
Maximum penalty: 50 penalty units.
For the purposes of this Act,
For the purposes of this Act,
(a) any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the pharmacist in the practice of pharmacy is significantly below the standard reasonably expected of a pharmacist of an equivalent level of training or experience,
(b) a contravention by the pharmacist of a provision of this Act or the regulations or of a condition of the pharmacist’s registration,
(c) practising pharmacy for remuneration in the course of employment by, or in association with, a non-pharmacist,
(d) a failure without reasonable excuse by the pharmacist to comply with a direction by the Board to provide information with respect to a complaint under this Part against the pharmacist,
(e) a failure by the pharmacist to comply with an order made or a direction given by the Board or the Tribunal under this Act,
(f) a contravention by the pharmacist of section 34A (4) (Power of Commission to obtain information, records and evidence) of the Health Care Complaints Act 1993,
(g) the supply of precursor drugs, or preparations, admixtures, extracts or other substances containing any proportion of precursor drugs, by the pharmacist in circumstances where the supply of those drugs, preparations, admixtures, extracts or other substances is unnecessary, not reasonably required, or excessive,
(h) any other improper or unethical conduct by a pharmacist in the course of the practice or purported practice of pharmacy (including, for example, commission of sex or violence, or drug related, offences).
For the purposes of subsection (1) (c):
(a) the Crown,
(b) a public health organisation or a charitable or philanthropic institution,
(c) a pharmacists’ partnership or pharmacists’ body corporate,
(d) a friendly or other society that owns a pharmacy business as permitted by section 26,
(e) a body corporate that owns or carries on a pharmacy business under section 27,
(f) a person who has a pecuniary interest in a pharmacy business as referred to in section 25 (4) or (5) and who carries on that business,
(g) a person who, in assuming the administration of the property of another person under a security interest granted in respect of that other person’s pharmacy business, carries on that pharmacy business,
(h) any person or body that has been approved in writing by the Board for the purposes of this paragraph.
The Board must not grant approval under paragraph (h) of the definition of
The Board may impose any conditions that it thinks fit on an approval under subsection (2) (h) and may vary or revoke any such approval, or any condition imposed on any such approval.
For the purposes of subsection (1) (g):
Part 11 makes it an offence for a person who employs a registered pharmacist to direct or incite the pharmacist to engage in conduct in the course of professional practice that would constitute unsatisfactory professional conduct or professional misconduct. That Part also enables the Director-General to prohibit persons who have been convicted of, or made the subject of a criminal finding for, such an offence from operating a business that provides pharmacy services.
In section 49 and Divisions 3, 4 and 5 of this Part and Divisions 1 and 2 of Part 6 (Appeals and review of disciplinary action), a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this or any other Act.
A complaint may be made under this Act concerning:
(a) the professional conduct of a registered pharmacist, or
(b) the provision of a pharmacy service by a registered pharmacist.
Subsection (1) ensures consistency between this Act and the Health Care Complaints Act 1993 with respect to the kinds of complaints that can be made about registered pharmacists.
Without limiting the generality of subsection (1), a complaint may be made that a registered pharmacist:
(a) has, either in or outside New South Wales, been convicted of or made the subject of a criminal finding for an offence, and the circumstances of the offence are such as to render the pharmacist unfit in the public interest to be registered as a pharmacist, or
(b) is guilty of unsatisfactory professional conduct or professional misconduct, or
(c) is not competent to practise pharmacy, or
(d) suffers from an impairment, or
(e) is not of good character.
A complaint need not be made in terms that are strictly in accordance with the terminology of this section.
In determining for the purposes of this Act whether a pharmacist is of good character regard may be had to conduct of the pharmacist before becoming registered as a pharmacist.
A complaint about a registered pharmacist may be made and dealt with even though the pharmacist has ceased to be registered. For that purpose, a reference in this Part to a pharmacist or registered pharmacist includes a reference to a person who has ceased to be registered or whose registration is suspended.
Any person (including the Board) can make a complaint.
Complaints are to be made to the Board and are to be lodged with the Registrar.
Complaints may also be made to the Commission.
A complaint must be in writing, must identify the complainant and must contain particulars of the allegations on which it is founded.
The Board may consider and investigate a complaint even if it does not comply with the requirements of this section (except the requirement that it identify the complainant) but must not proceed to deal with the complaint under this Part until they are complied with.
The Board may require the complainant to provide further particulars of a complaint.
The Board must notify the Commission of any complaint made under this Part and this is to be done as soon as practicable after the complaint is made.
Written notice of the making of a complaint, the nature of the complaint and the identity of the complainant is to be given by the Board to the pharmacist against whom the complaint is made, as soon as practicable after the complaint is made.
Notice is not required to be given if the Commission is handling the complaint.
Notice is not required to be given if the giving of the notice will or is likely to:
(a) prejudice the investigation of the complaint, or
(b) place the health or safety of a person at risk, or
(c) place the complainant or another person at risk of intimidation or harassment.
The Board may make such inquiries concerning a complaint as it thinks fit.
Before the Board deals with or refers a complaint under this Part, the Board and the Commission must consult in order to see if agreement can be reached between them as to the course of action to be taken concerning a complaint.
Division 2 of Part 2 of the Health Care Complaints Act 1993 applies to the consultation and the outcomes of the consultation.
When a complaint is made, the Board may at any time decide:
(a) to refer the complaint for investigation by the Commission, or
(b) to refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993, or
(c) to refer the complaint to the Pharmacy Care Assessment Committee under Division 3, or
(d) to refer the matter to an Impaired Registrants Panel under Part 5, or
(e) to deal with the complaint by inquiry at a meeting of the Board under Division 4, or
(f) to refer the complaint to the Tribunal, or
(g) to deal with the complaint by directing the pharmacist to attend counselling, or
(h) to deal with the complaint by providing advice or making recommendations to the pharmacist, or
(i) to decline to deal with or dismiss the complaint.
If the Commission recommends to the Board in accordance with the Health Care Complaints Act 1993 that a complaint (whether made under that Act or this Act) be dealt with by inquiry at a meeting of the Board under Division 4, the Board must comply with that recommendation (but only if the complaint is of a kind that can be made under this Act).
The Board may decline to deal with a complaint if the pharmacist concerned has ceased to be registered.
The Board may decline to deal with a complaint if the complainant fails to provide further particulars required by the Board.
A complaint may be withdrawn by the complainant at any time. The Board and the Commission are to consult as to whether the complaint should be proceeded with in the public interest.
The Board is to notify the pharmacist of any action taken by the Board under this section.
Both the Board and the Commission are under a duty to refer a complaint to the Tribunal if at any time either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of the pharmacist’s registration.
However, either the Board or the Commission may decide not to refer the complaint to the Tribunal if of the opinion that the allegations on which the complaint is founded (and on which any other pending complaint against the pharmacist is founded) relate solely or principally to the physical or mental capacity of the pharmacist to practise pharmacy.
If the Board decides not to refer the complaint to the Tribunal, the Board must instead deal with the complaint at a meeting of the Board under Division 4. If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Board.
This section does not require the Board or the Commission to refer a complaint that the Board or Commission thinks is frivolous or vexatious.
The Board may, before or while taking any action under this Part or Part 5 (Impairment), by notice to the pharmacist concerned, require the pharmacist to undergo an examination at the Board’s expense by a registered medical practitioner, or other appropriate health professional, specified in the notice, at any reasonable time and place specified in the notice.
A failure by a pharmacist, without reasonable cause, to comply with a notice given under this section to undergo an examination is, for the purposes of this Part or any inquiry or appeal under this Part, evidence that the pharmacist does not have sufficient physical and mental capacity to practise pharmacy.
A registered medical practitioner or other health professional who conducts an examination under this section is to report to the Board on the results of the examination. The Board is to provide a copy of the report to the pharmacist.
A person must not directly or indirectly make a record of or divulge to any person any information contained in a report to the Board under this section that has come to the person’s notice in the exercise of the person’s functions under this Act, except for the purpose of exercising functions under this Act.
Maximum penalty: 50 penalty units.
A person cannot be required in civil proceedings in any court to produce or permit access to any report made to the Board under this section or to divulge the contents of any such report.
In this section:
The Board is required to give notice of any order made in respect of a registered pharmacist under this Act, or the placing of conditions on the registration of a registered pharmacist, to the following persons:
(a) the employer (if any) of the pharmacist concerned,
(b) the chief executive officer (however described) of any public health organisation (within the meaning of the Health Services Act 1997) in respect of which the pharmacist concerned is a visiting practitioner or is otherwise accredited,
(c) the chief executive officer (however described) of any private health facility (within the meaning of the Private Health Facilities Act 2007) in respect of which the pharmacist concerned is accredited.
The notice is to be given within 7 days after:
(a) in the case of an order made or conditions imposed by the Board—the date the order is made or the conditions are imposed, or
(b) in any other case—the date the Board is given a copy of the decision of the body that made the order or imposed the conditions.
The notice is to include such information as the Board considers appropriate.
The Board may refer a complaint to the Committee only if the Commission has decided not to investigate the complaint.
A complaint may not be referred to the Committee if it is a complaint that the pharmacist is not of good character or has been convicted of, or made the subject of a criminal finding for, an offence.
This section does not operate to limit the Committee in the exercise of its functions under this Division in respect of any matter that arises in the course of the Committee’s investigation of a complaint.
When a complaint is referred to the Committee, the Committee is to investigate the complaint and may in any particular case encourage the complainant and the pharmacist against whom the complaint is made to settle the complaint by consent.
The Committee may obtain such pharmaceutical, medical, legal, financial or other advice as it thinks necessary or desirable to enable it to exercise its functions.
The Committee may not determine a complaint referred to it except by settlement by consent.
The Committee is to make a report to the Board on a complaint referred to it whether or not it is able to effect settlement of the complaint by consent.
The Committee may, by notice to the pharmacist who is the subject of a complaint referred to the Committee, require the pharmacist to undergo skills testing at the Board’s expense by an appropriately qualified person specified in the notice, at any reasonable time and place specified in the notice.
A failure by a pharmacist, without reasonable cause, to comply with a notice given under this section to undergo skills testing is, for the purposes of this Part or any inquiry or appeal under this Part, evidence that the pharmacist does not have sufficient skill to practise pharmacy.
The person who conducts skills testing under this section is to report to the Committee on the results of the examination. The Committee is to provide a copy of the report to the pharmacist.
A person must not directly or indirectly make a record of or divulge to any person any information contained in a report to the Committee under this section that has come to the person’s notice in the exercise of the person’s functions under this Act, except for the purpose of exercising functions under this Act.
Maximum penalty: 50 penalty units.
A person cannot be required in civil proceedings in any court to produce or permit access to any report made to the Committee under this section or to divulge the contents of any such report.
In this section:
The Committee’s report to the Board may include such recommendations with respect to the complaint as the Committee considers appropriate, including (without being limited to) any of the following recommendations:
(a) a recommendation that the Board deal with the complaint by inquiry at a meeting of the Board as a complaint of unsatisfactory professional conduct,
(b) a recommendation that the Board direct the pharmacist to attend counselling,
(c) a recommendation that the Board dismiss the complaint.
The Board is to provide the pharmacist and the Commission with a copy of the Committee’s report and recommendations as soon as practicable after the report is made.
The Board must comply with a recommendation of the Committee that the Board deal with the complaint by inquiry at a meeting of the Board as a complaint of unsatisfactory professional conduct.
Otherwise the Board is to allow the Commission and the pharmacist at least 21 days after they have been provided with a copy of the Committee’s report and recommendations to make submissions in respect of the report and recommendations.
After considering the Committee’s report and recommendations and any submissions made by the pharmacist or the Commission in respect of the report or recommendations, the Board is to proceed to deal with the complaint as provided by section 48.
This section is subject to section 49 (Serious complaints must be referred to Tribunal).
A complainant and the pharmacist against whom the complaint is made are not entitled to be legally represented at any appearance before the Committee.
If the Board decides to deal with a complaint by inquiry at a meeting of the Board, the meeting is to be held in accordance with Schedule 4 and this Division.
The Board may be assisted by an Australian legal practitioner when dealing with a complaint at a meeting of the Board.
The Board is to provide the Commission with a copy of any submission made to the Board by the pharmacist in respect of the complaint or in respect of any recommendation of the Committee concerning the complaint.
The procedure for the calling of a meeting to deal with a complaint and for the conduct of the meeting is, subject to this Act and the regulations, to be as determined by the Board.
At a meeting to deal with a complaint, the Board:
(a) may inform itself on any matter in such manner as it thinks fit, and
(b) may receive written or oral submissions, and
(c) is to proceed with as little formality and technicality, and as much expedition, as the requirements of this Act and the proper consideration of the complaint permit, and
(d) is not bound by rules of evidence, and
(e) may proceed to deal with the complaint in the absence of the pharmacist.
The pharmacist is entitled to attend the meeting during the course of the Board’s inquiry and to make submissions to the Board.
The Committee may, if the Board so requires, make a submission to the Board with respect to the complaint and may for that purpose attend the meeting during the course of the Board’s inquiry.
The Board is to afford the Commission the opportunity to make a submission to the Board with respect to the complaint and the Commission may for that purpose attend the meeting during the course of the Board’s inquiry.
The Committee or the Commission may not be present at the meeting except while actually making a submission in accordance with this section, unless the Board otherwise determines.
Despite subsection (4), the Commission is to be present throughout the Board’s inquiry where the complaint is the subject of a recommendation of the Commission under section 48 (2) that it be dealt with by inquiry at a meeting of the Board under this Division.
The pharmacist is not entitled to be legally represented at the inquiry but may be accompanied by a support person. The support person can be an Australian legal practitioner.
The Commission is not entitled to be legally represented at the inquiry.
The Board must, within 30 days of making its decision on a complaint, make available to the complainant, the pharmacist concerned and such other persons as it thinks fit, a written statement of the decision.
If the Commission made a submission to the Board with respect to the complaint, the Board is to provide the Commission with a copy of the written statement of the decision.
The written statement of a decision must give the reasons for the decision.
The Board is not required to include confidential information in any such statement. If a statement would be false or misleading if it did not include the confidential information, the Board is not required to provide the statement.
When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of subsection (4), the Board must give a confidential information notice to the person.
A
This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.
In this section:
(a) has not previously been published or made available to the public when a written statement of a decision to which it is or may be relevant is being prepared, and
(b) relates to the personal or business affairs of a person, other than a person to whom the Board is required (or would, but for subsection (4), be required) to provide a written statement of a decision, and
(c) is information:
(i) that was supplied in confidence, or
(ii) the publication of which would reveal a trade secret, or
(iii) that was provided in compliance with a duty imposed by an enactment, or
(iv) the provision of which by the Board would be in breach of any enactment.
A finding of the Board under this Division is admissible as evidence in any legal proceedings.
The Board or the Tribunal may exercise any power or combination of powers conferred on it by this Division if the Board (pursuant to an inquiry at a meeting of the Board under Division 4 of this Part) or the Tribunal finds the subject-matter of a complaint of a kind referred to in section 39 (2) to have been proved or the person admits to it in writing to the Board or the Tribunal.
The Board may do any one or more of the following:
(a) caution or reprimand the person,
(b) make an order for the withholding or refunding of part or all of the payment with respect to the fees to be charged or paid for the pharmacy services that are the subject of the complaint,
(c) order that the person seek and undergo medical or psychiatric treatment or counselling,
(d) direct that such conditions relating to the person’s practice of pharmacy as it considers appropriate be imposed on the person’s registration,
(e) order that the person complete a specified educational course or courses,
(f) order that the person report on his or her pharmacy practice at specified times, in a specified manner and to specified persons,
(g) order that the person seek and take advice, in relation to the management of his or her pharmacy practice, from a specified person or persons.
If the person is not registered, an order or direction can still be given under this section but has effect only so as to prevent the person being registered unless the order is complied with or to require the conditions concerned to be imposed when the person is registered, as appropriate.
The Board may recommend that the registration of a pharmacist be suspended for a specified period or cancelled if the Board is satisfied (when it finds on a complaint about the pharmacist) that the pharmacist does not have sufficient physical and mental capacity to practise pharmacy.
If the pharmacist is not registered, a recommendation can be made under this section that the pharmacist not be re-registered.
The Board makes its recommendation by referring the matter with its recommendation to the Chairperson or to a Deputy Chairperson nominated by the Chairperson.
The Chairperson or Deputy Chairperson may then make an order in the terms recommended or may make such other order as to the suspension or registration of the pharmacist as the Chairperson or Deputy Chairperson thinks proper based on the findings of the Board.
An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time.
Instead of making an order under this section, the Chairperson or Deputy Chairperson may exercise any power or combination of powers of the Board under this Division.
The Tribunal may exercise any power that the Board can exercise under this Division.
The Tribunal may by order suspend a person’s registration for a specified period or direct that a person’s registration be cancelled if the Tribunal is satisfied (when it finds on a complaint about the person):
(a) that the person is not competent to practise pharmacy, or
(b) that the person is guilty of professional misconduct, or
(c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence are such as to render the person unfit in the public interest to practise pharmacy, or
(d) that the person is not of good character.
An order that a person’s registration be cancelled is an order that the person’s name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered.
If the Tribunal makes an order under subsection (2) in respect of a person and it is satisfied that the person poses a substantial risk to the health of members of the public, it may by order (a
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently,
(b) place such conditions as the Tribunal thinks appropriate on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Section 10AK (1) of the Public Health Act 1991 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
If the Tribunal is aware that a person in respect of whom it is proposing to make a prohibition order is registered under a health registration Act other than this Act, the Tribunal is, before making the prohibition order, to notify the board constituted under that other Act of the proposed order and give that board an opportunity to make a submission.
An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time.
The Board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person:
(a) by order suspend the registration of a registered pharmacist for such period (not exceeding 8 weeks) as is specified in the order, or
(b) impose on a registered pharmacist’s registration such conditions, relating to the pharmacist’s practising pharmacy, as it considers appropriate.
The Board may take such action:
(a) whether or not a complaint has been made or referred to the Board about the pharmacist, and
(b) whether or not proceedings in respect of such a complaint are before the Tribunal.
The Board may at any time alter or remove conditions imposed under this Division.
The Board must, as soon as practicable after taking any action under section 67 and, in any event, within 7 days after taking that action, refer the matter to the Commission for investigation.
The matter is to be dealt with by the Commission as a complaint made to the Commission against the pharmacist concerned.
The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or to the Board to be dealt with by inquiry at a meeting of the Board under Division 4 of this Part.
Section 49 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.
This section does not apply if the Board takes action against a registered pharmacist under section 67 because the Board is of the opinion that the pharmacist suffers from an impairment.
This section applies if the Board takes action against a registered pharmacist under section 67 because the Board is of the opinion that the pharmacist suffers from an impairment.
The Board must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action.
The Board is to consult with the Commission to see if agreement can be reached as to whether the matter should be:
(a) dealt with as a complaint against the pharmacist, or
(b) referred to an Impaired Registrants Panel.
The matter is to be dealt with as a complaint against the pharmacist only if, following that consultation:
(a) the Board and the Commission agree that it should be dealt with as a complaint, or
(b) either the Board or the Commission is of the opinion that the matter should be dealt with as a complaint.
In such a case, the Board is to refer the matter to the Commission and the matter is to be dealt with by the Commission as a complaint made to the Commission against the pharmacist concerned.
The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or to the Board to be dealt with by inquiry at a meeting of the Board under Division 4 of this Part.
Section 49 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.
If subsection (4) does not apply, the Board is to refer the matter to an Impaired Registrants Panel.
A matter may be referred to an Impaired Registrants Panel under this section even though the pharmacist has been suspended under section 67. Part 5 applies in respect of such a referral as if the pharmacist were a registered pharmacist.
If the Board suspends the registration of a registered pharmacist under section 67, the Board must notify the Chairperson that it has taken that action as soon as practicable after making the order and, in any event, within 7 days.
A period of suspension imposed by the Board under this Division may be extended, from time to time, by the Board by order for a further period or further periods, each of not more than 8 weeks, but only if:
(a) the extension has been approved in writing by the Chairperson or a Deputy Chairperson, and
(b) the complaint about the pharmacist has not been disposed of.
On the expiration of a period of suspension imposed under this Division, the person’s rights and privileges as a registered pharmacist are revived, subject to any order of the Tribunal on the complaint that is referred to the Tribunal.
This section applies if the Board imposes conditions on the registration of a registered pharmacist under section 67 and the matter is dealt with as a complaint against the pharmacist.
The conditions imposed by the Board have effect until the complaint about the pharmacist is disposed of, or the conditions are removed by the Board, whichever happens first.
(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(d) becomes a mentally incapacitated person, or
(e) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(f) resigns the office by instrument in writing addressed to the Minister, or
(g) is removed from office by the Minister under subclause (3).
Without limiting the generality of subclause (1), a member who is appointed under section 107 (2) (a) or (b) and who ceases to be a registered pharmacist is to be taken to have vacated office.
The Minister may remove a member from office.
The procedure for the calling of meetings of the Committee and for the conduct of business at those meetings is, subject to this Act, to be as determined by the Committee.
The quorum for a meeting of the Committee is 3 members.
A decision supported by a majority of the votes cast at a meeting of the Committee at which a quorum is present is the decision of the Committee.
The Chairperson of the Committee or, in the absence of the Chairperson, another member of the Committee elected to chair the meeting by the members present, is to preside at a meeting of the Committee.
The person presiding at any meeting of the Committee has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
(Section 124)
In proceedings before it, the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.
The Chairperson or Deputy Chairperson may summon a person to appear in proceedings before the Tribunal, to give evidence and to produce such documents (if any) as are referred to in the summons.
The person presiding at the proceedings may require a person appearing in the proceedings to produce a document.
The Tribunal may, in proceedings before it, take evidence on oath or affirmation and, for that purpose, a member of the Tribunal:
(a) may require a person appearing in the proceedings to give evidence either to take an oath or to make an affirmation in a form approved by the person presiding, and
(b) may administer an oath to or take an affirmation from a person so appearing in the proceedings.
A person served with a summons to appear in any such proceedings and to give evidence must not, without reasonable excuse:
(a) fail to attend as required by the summons, or
(b) fail to attend from day to day unless excused, or released from further attendance, by a member of the Tribunal.
A person appearing in proceedings to give evidence must not, without reasonable excuse:
(a) when required to be sworn or to affirm—fail to comply with the requirement, or
(b) fail to answer a question that the person is required to answer by the person presiding, or
(c) fail to produce a document that the person is required to produce by this clause.
Maximum penalty: 20 penalty units.
A member of the Tribunal may, by notice in writing served on a person, require the person:
(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being a member of the Tribunal or a person authorised by the Tribunal in that behalf, and
(b) to produce, at that time and place, to the person so specified a document specified in the notice.
A person who fails, without reasonable excuse, to comply with a notice served on the person under this clause is guilty of an offence.
Maximum penalty: 20 penalty units.
The Tribunal may receive and admit on production, as evidence in any proceedings, such of the following as the Tribunal considers relevant to the proceedings:
(a) the judgment and findings of any court (whether civil or criminal and whether or not of New South Wales) or tribunal,
(b) the verdict or findings of a jury of any such court,
(c) a certificate of the conviction of or the making of a criminal finding in respect of any person,
(d) a transcript of the depositions or of shorthand notes, duly certified by the Registrar or registrar of the court or tribunal as correct, of the evidence of witnesses taken in any such court or tribunal.
The Tribunal may in proceedings before it deal with one or more complaints about a registered pharmacist.
If, during any such proceedings, it appears to the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the pharmacist concerned:
(a) whether instead of or in addition to the complaint that was made, and
(b) whether or not by the same complainant,
the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.
If another complaint is taken to have been referred to the Tribunal under subclause (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Tribunal, just and equitable in the circumstances.
The person presiding in proceedings before the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the pharmacist concerned or any other person):
(a) direct that the name of any witness is not to be disclosed in the proceedings, or
(b) direct that all or any of the following matters are not to be published:
(i) the name and address of any witness,
(ii) the name and address of a complainant,
(iii) the name and address of a pharmacist,
(iv) any specified evidence,
(v) the subject-matter of a complaint.
A direction may be amended or revoked at any time by the person presiding.
A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to:
(a) a person who requested the direction, and
(b) the complainant or the pharmacist concerned, as appropriate, and
(c) such other persons as the person presiding thinks fit.
For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
A person who contravenes a direction given under this clause is guilty of an offence.
Maximum penalty: 150 penalty units in the case of a body corporate and 20 penalty units in any other case.
Every document requiring authentication by the Tribunal may be sufficiently authenticated without the seal of the Tribunal, if signed by the Chairperson or by a member of the Tribunal authorised to do so by the Chairperson.
In any proceedings before the Tribunal, a person appointed by the Commission:
(a) may act as nominal complainant in place of the actual complainant, and
(b) when so acting, is, for the purposes of this Act and the regulations, to be taken to be the person who made the complaint.
A reference in this Act to a complainant includes a reference to a nominal complainant.
Without limiting the operation of clause 8, the Director-General personally (or an officer of the Department of Health appointed by the Director-General) or a person appointed by the Commission may intervene, and has a right to be heard, in any proceedings before the Tribunal.
The Director-General and the Commission may be represented by an Australian legal practitioner.
It is the duty of the Tribunal to hear inquiries and appeals under this Act and to determine those inquiries and appeals expeditiously.
Without affecting the generality of subclause (1), the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
A certificate, purporting to have been signed by the Registrar, to the effect that:
(a) a person specified in the certificate was or was not a registered pharmacist at a time or during a period so specified, or
(b) the name of a person specified in the certificate was removed from the Register at a time so specified, or
(c) the registration of a person specified in the certificate was suspended from a time so specified and for a period so specified, or
(d) a condition, particulars of which are set out in the certificate, was, at a time or during a period so specified, imposed on the registration of a person so specified or revoked or not in force,
is, without proof of the signature of the person by whom the certificate purports to have been signed, to be received by the Tribunal and all courts as evidence of that fact.
A certificate purporting to have been signed by the Registrar to the effect that:
(a) a person specified in the certificate was or was not registered under clause 1 of Schedule 2 as the holder of a pecuniary interest so specified at a time or during a period so specified, or
(b) premises specified in the certificate were or were not, at a time or during a period so specified, approved by the Board under clause 1 of Schedule 2,
is, without proof of the signature of the person by whom the certificate purports to have been signed, to be received by the Tribunal and all courts as evidence of that fact.
The Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if:
(a) a complainant fails to comply with a requirement made of the complainant by the Tribunal, or
(b) the person about whom the complaint is made ceases to be a registered pharmacist.
The Tribunal must not conduct or continue any inquiry or any appeal if the pharmacist concerned dies.
The Tribunal may order the complainant, if any, the registered pharmacist concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine.
When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect.
The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court is to enter judgment for the amount unpaid together with any fees paid for filing the certificate.
(Repealed)
(Section 158)
In this Schedule:
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• this Act
• Health Legislation Amendment (Unregistered Health Practitioners) Act 2006 (but only to the extent that it amends this Act)
Such a provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.
To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.
The provisions of this Part are subject to any regulations made under clause 2.
A person who, immediately before the repeal of the 1964 Act, held office as a member of the old Board:
(a) ceases to hold office as such on that repeal, and
(b) is eligible (if otherwise qualified) to be appointed or elected as a member of the new Board.
Despite subclause (1), a person who, immediately before the commencement of section 98, held office as an elected member of the old Board commences a new term of office for a term of 4 years as an elected member of the new Board on the commencement of that section.
A person who ceases to hold office as a member of the old Board because of the operation of this Act is not entitled to be paid any remuneration or compensation because of ceasing to hold that office.
Nothing in subclause (2) prevents a member who holds office as an elected member of the new Board as a result of the operation of that subclause from being removed from office under clause 7 of Schedule 3.
Unless the regulations otherwise provide, anything done by or in relation to the old Board and having effect immediately before the dissolution of the old Board is taken to have been done by or in relation to the new Board.
For the purpose only of enabling the new Board to be constituted in accordance with this Act on or after (but not before) the commencement of section 98 (Constitution of Board), appointments may be made under this Act, and anything else may be done, before that commencement, as if the whole of this Act commenced on the date of assent, but so that no appointment as a member of the new Board as so constituted takes effect before the commencement of section 98.
As soon as practicable after the commencement of this clause, the new Board is to compile the Register from the relevant information and particulars entered in the Register of Pharmacists kept under the 1964 Act in respect of persons registered as pharmacists immediately before that commencement.
A person who was a registered pharmacist under the 1964 Act immediately before the commencement of this clause is on that commencement taken to be registered under this Act. Registration under this Act is subject to the same conditions (if any) as the person’s registration under the 1964 Act was subject immediately before that commencement.
A certificate of provisional registration as a pharmacist in force under the 1964 Act immediately before the commencement of this clause is taken, on that commencement, to have been granted under this Act.
A fee paid or which remains unpaid under a provision of the 1964 Act immediately before its repeal is taken, on commencement of the relevant provision of this Act, to have been paid or to remain unpaid under the provision of this Act that corresponds to that provision and is taken to have been so paid or to so remain unpaid for or in relation to the same period as that which applied to the fee under the 1964 Act.
An application for registration as a pharmacist under the 1964 Act which had not been determined by the old Board before the repeal of that Act is taken to be an application for registration under this Act.
Despite Part 4 of the Licensing and Registration (Uniform Procedures) Act 2002 (as applied by section 12 of this Act), an application referred to in section 68 of that Act may not be made by means of electronic communication.
Subclause (1) does not limit the effect of the Electronic Transactions Act 2000.
This clause ceases to have effect on a day to be appointed by proclamation published on the NSW legislation website.
An appeal to the District Court under section 22 or 24B of the 1964 Act that was pending immediately before the repeal of that Act is to be continued and disposed of as if, except as provided by subclause (2), this Act had not been enacted.
The decision of the Court on any such appeal is final, and binding on the new Board and the appellant and for the purposes of this Act is taken to be the final decision of the new Board.
A complaint made to the old Board concerning the conduct of a registered pharmacist under the 1964 Act and pending immediately before the repeal of that Act is, to the extent that the conduct concerned could be the subject of a complaint under this Act, to be dealt with as a complaint under this Act, except as provided by this clause.
If a complaint pending under the 1964 Act on the commencement of this clause is the subject of an inquiry by a Professional Standards Committee or an inquiry by or appeal before the old Board under that Act immediately before that commencement:
(a) the complaint or appeal is to continue to be dealt with and determined under the 1964 Act as if the 1964 Act had not been repealed, and
(b) any finding, order, direction, decision or determination arising from or in connection with the determination of the complaint or appeal under the 1964 Act has effect for the purposes of the corresponding provision of this Act, and
(c) the 1964 Act continues to apply as if it had not been repealed for the purposes of any appeal against any such order, direction, decision or determination.
This clause applies for the purposes of this Act and for the purposes of the Health Care Complaints Act 1993 (including any conciliation under that Act) in its application to any complaint or investigation pending under the 1964 Act immediately before the repeal of the 1964 Act.
A complaint or investigation may be made under this Act with respect to conduct or any other matter or thing that occurred before, or partly before and partly after, the commencement of the provisions of this Act under which the complaint or investigation is made.
Any finding, order, direction, decision or determination under Part 4 (Complaints and disciplinary proceedings) of the 1964 Act is, to the extent that it had any operation immediately before the commencement of this clause, taken to have been made under the corresponding provision of this Act and is to be given effect to accordingly.
Money standing to the credit of the Pharmacy Education and Research Account under the 1964 Act immediately before the commencement of this clause is to be paid to the credit of the Pharmacy Education and Research Account under this Act.
Unless the regulations otherwise provide, on and from the commencement of this clause, a reference in any other Act, in any instrument made under any Act or in any other instrument of any kind:
(a) to the old Board is to be read as a reference to the new Board, and
(b) to the registrar under the 1964 Act is to be read as a reference to the Registrar under this Act, and
(c) to the Register of Pharmacists referred to in section 12 of the 1964 Act is to be read as a reference to the Register under this Act, and
(d) to the registration of a person as a registered pharmacist under the 1964 Act is to be read as a reference to the registration of the person as a pharmacist under this Act, and
(e) to the Register of Pharmacies referred to in section 24A of the 1964 Act is to be read as a reference to the Register of Pharmacies kept under this Act, and
(f) to the registration of a person as a registered owner of a pharmacy business under the 1964 Act is to be read as a reference to the registration of the person as holder of such a pecuniary interest under this Act, and
(g) to the registration of premises as registered approved premises under the 1964 Act is to be read as a reference to the registration of the premises as approved premises under this Act.
As soon as practicable after the commencement of this clause, the new Board is to compile the Register of Pharmacies from the relevant particulars entered in the Register of Pharmacies kept under the 1964 Act in respect of premises registered as approved premises and persons registered as owners immediately before that commencement.
An approval of premises (including premises of a kind referred to in clause 1 (8) (b) of Schedule 2) granted under section 24A of the 1964 Act and in force immediately before the repeal of that Act is taken to be an approval granted under clause 1 of Schedule 2 to this Act.
Clause 1 (10) (b) of Schedule 2 does not apply to an approval to which subclause (2) of this clause applies of premises of a kind referred to in clause 1 (8) (b) of Schedule 2.
A person who is a registered owner of a pharmacy business under the 1964 Act immediately before the commencement of this clause is on that commencement taken to be the registered holder of such a pecuniary interest under this Act.
Premises that are registered premises under the 1964 Act immediately before the commencement of this clause are on that commencement taken to be registered premises under this Act.
An application for approval of premises as suitable for carrying on a pharmacy business or for the registration of an owner of such a business under the 1964 Act which had not been determined by the old Board before the repeal of that Act is taken to be an application for approval of premises or for the registration of the holder of a pecuniary interest in a pharmacy business under this Act.
For the purposes of satisfying section 24 (1), any period of notice given under clause 15 (1) of the Pharmacy (General) Regulation 1998:
(a) less than 14 days before the commencement of section 24, or
(b) of an intended acquisition of a pecuniary interest that occurs on or after the commencement of section 24,
is taken to be a period of notice given under section 24 (1) in relation to that acquisition.
For the purposes of satisfying section 24 (2), an acquisition of a pecuniary interest in a pharmacy business that occurred, but in respect of which an intention to acquire was not notified to the old Board, before the commencement of section 24 must be notified within 28 days of the day that section commences.
For the purposes of satisfying section 24 (3), a disposal of a pecuniary interest in a pharmacy business that occurred, but was not notified to the old Board, before the commencement of section 24 must be notified within 28 days of the day that section commences.
Notice duly given under clause 15 (1) or (2) of the Pharmacy (General) Regulation 1998 is taken to be notice duly given under section 24 (1) and (3), respectively.
Section 25 does not prevent a person who lawfully had a pecuniary interest in a pharmacy business before the insertion of the definition of
In this Part:
The Tribunal may make a prohibition order under section 66 (3A) with respect to either or both of the following:
(a) conduct or any other matter or thing that occurred before, or partly before and partly after, that subsection was inserted by the amending Act,
(b) a complaint that has been made but not fully dealt with before that subsection was inserted by the amending Act.
Section 128 (4), as substituted by the amending Act, applies only in respect of a statement of a decision that is given after the commencement of that subsection.
Section 144A, as inserted by the amending Act, extends to a person who was, immediately before the commencement of that section, subject to an order of the Tribunal or the Supreme Court that the person’s registration be cancelled or that the person not be re-registered.
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