Shousha v A Professional Conduct Committee
[2022] NZHC 1457
•21 June 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2095
[2022] NZHC 1457
BETWEEN ASMA FARAG SHOUSHA
Appellant
AND
A PROFESSIONAL CONDUCT COMMITTEE
Respondent
Hearing: 10 May 2022 Appearances:
A H Waalkens QC and S A Beattie for the Appellant J P Coates and G Weir for the Respondent
Judgment:
21 June 2022
JUDGMENT OF GORDON J
This judgment is delivered by me on 21 June 2022 at 3pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors:JC Waugh, Devonport Law Ltd, Auckland JP Coates, Claro, Wellington
GF Weir, Claro, Auckland
Counsel: AH Waalkens QC, Barrister, Auckland
SA Beattie, Barrister, Auckland
Copy to: DD Vincent, Cullinane Steele Ltd, Levin
(for the Health Practitioners Disciplinary Tribunal)
SHOUSHA v A PROFESSIONAL CONDUCT COMMITTEE [2022] NZHC 1457 [21 June 2022]
Introduction
[1] This is an appeal against a decision of the Health Practitioners Disciplinary Tribunal (Tribunal).1
[2] The appellant Asma Shousha is a pharmacist. In May 2021 Ms Shousha appeared before the Tribunal on a charge of professional misconduct laid by the respondent Professional Conduct Committee (PCC).
[3] The charge contains nine particulars. Particulars 1 to 7 of the charge relate to Ms Shousha’s management of the pharmacy she owned and operated and her breach of conditions imposed on the pharmacy licence by Medicines Control.2 Particulars 8 and 9 relate to Ms Shousha’s failure to notify her health status to the Pharmacy Council when required. A copy of the charge dated 8 September 2020 is annexed as a schedule to this judgment.
[4] Ms Shousha admitted the charge and accepted that her conduct amounted to malpractice, negligence and conduct that brought discredit to the pharmacy profession. She also admitted that the conduct was significant enough to warrant a finding of professional misconduct.
[5] The hearing proceeded on the basis of an Agreed Summary of Facts which included Ms Shousha’s explanations and comments but with agreement that her admissions prevailed in the event of any inconsistency.
[6] In its written decision of 14 October 2021 the Tribunal found that all particulars were established as professional misconduct3 and imposed the following penalties:4
(a)Censure;
(b)Cancellation of registration;
1 Professional Conduct Committee v Shousha 1195/Phar20/493P (Tribunal decision).
2 A regulatory team within the Ministry of Health.
3 Pursuant to Health Practitioners Competence Assurance Act 2003 (HPCAA), ss 100(1)(a) and/or 100(1)(b).
4 Under HPCAA, s 101(1).
(c)Four conditions Ms Shousha must satisfy in the event she wishes to apply for re-registration as a pharmacist; and
(d)Costs of $37,363 (being 35 per cent of the reasonable costs of the PCC and Tribunal).
[7] On appeal Ms Shousha does not challenge the Tribunal’s finding as to her conduct. She also accepts that a censure was an appropriate penalty. She is not opposed to conditions or having to contribute to a costs award against her per se. Her appeal challenges the Tribunal’s:
(a)Decision to cancel her registration;
(b)Decision to impose conditions in the event she applies for re- registration; and
(c)Determination of the level of her contribution towards costs.5
[8] Ms Shousha says that the parts of the decision appealed are wrong in both fact and law.
Factual background6
[9] Ms Shousha registered with the New Zealand Pharmacy Council (the Council) in 2006, having qualified in Cairo in 1981 with a B Pharm. She is the sole director and shareholder of Nohancy Ltd. Until 17 July 2018, Nohancy Ltd held a licence to operate a pharmacy and traded as the Devonport 7 Day Pharmacy in Devonport, Auckland (the pharmacy).
[10] The charge related to Ms Shousha’s conduct between about January 2016 and July 2018. During that period Ms Shousha was the ‘pharmacist with effective control’
5 Ms Shousha initially appealed the Tribunal’s determination of reasonable costs as well as her contribution to those costs. In his oral submissions Mr Waalkens QC abandoned the challenge to the determination of reasonable costs limiting the challenge to the level of Ms Shousha’s contribution to those costs.
6 The summary of the factual background is largely drawn from the Tribunal’s summary of the factual background.
of Nohancy Ltd and the ‘responsible person’ under the pharmacy’s Licence to Operate. Licences to operate pharmacies are issued by the Ministry of Health under the Medicines Act 1981.
[11] The pharmacy was audited by Medicines Control three times in 2018. Medicines Control is the regulatory team within the Ministry of Health that oversees the local distribution chain of medicines and controlled drugs within New Zealand. Its roles include issuing licences and monitoring compliance with legislation and regulations. Medicines Control may conduct an inspection of a licensed premises without notice.
[12] The first of the three audits took place on 17 January 2018. The pharmacy had a fridge for storing medicines which must be stored within a temperature range of 2 to 8 degrees Celsius. That audit raised concerns about the monitoring of the refrigeration temperatures to ensure they remained within range at all times. As a result of the audit, on 19 January 2018 the Licensing Authority wrote to Ms Shousha advising her that an additional condition was imposed on the pharmacy’s licence prohibiting the pharmacy from dispensing medicines that required refrigerated storage. The condition was effective immediately and reads:
The licensee is not permitted to dispense or supply any medicines requiring storage between 2-8 degrees Celsius.
[13] On 24 January 2018 there was a follow-up audit having regard to the findings from the first audit and to monitor the pharmacy’s compliance. The audit report identified a number of issues including the pharmacy’s continued inability to demonstrate it had a robust system in place to ensure that fridge temperatures would be consistently maintained between 2 and 8 degrees Celsius. Additionally the audit found that Ms Shousha had provided vaccination services to at least five customers during 2017 but she could not demonstrate that she was suitably qualified or authorised to provide such services at that time.
[14] Following the second audit, on 13 February 2018, the Licensing Authority imposed a further additional operating condition as follows:
The licensee is not permitted to dispense, supply or administer any vaccine or provide any vaccination services.
[15] On 9 July 2018, Michael Haynes, the manager of the Licensing Authority at Medicines Control visited the pharmacy to undertake a third audit. The purpose of the third audit was to check the pharmacy’s compliance with the operating conditions and to assess the action taken by the pharmacy in response to the first two audits.
[16] Mr Haynes then wrote to Ms Shousha on 11 July 2018 to inform her of the issues that he had identified during the third audit: the pharmacy had continued to dispense and supply medicines in breach of the licence condition (referred to in [12] above) and she had amended records for dispensing medicines requiring refrigeration so that the dispensing date in the dispensary software was backdated to 1 January 2018 (that is purporting to show a dispensing date prior to the imposition of the condition in [12] above).
[17] As a consequence of the findings in the three audits, on 17 July 2018 the Licensing Authority suspended the pharmacy’s Licence to Operate effective from 18 July 2018. On 13 December 2018, the Licensing Authority made a decision to cancel the pharmacy’s Licence to Operate with immediate effect.
[18] In the meantime Mr Haynes had notified the Pharmacy Council of his concern and the decision of the Licensing Authority to suspend the Licence to Operate. On 21 September 2018 the Pharmacy Council appointed the PCC to investigate Ms Shousha’s conduct. During the PCC’s investigation it was disclosed that Ms Shousha had been diagnosed with breast cancer in November/December 2015, and received aggressive cancer treatments including multiple surgeries over the following eighteen months. She had struggled to manage the pharmacy during that period and explained that the stress and depression were exhausting. An assessment by a health psychologist in January 2016 recorded Ms Shousha as having low mood and high distress in relation to her cancer diagnosis, and limited coping resources to manage her current situation.
[19]Ms Shousha’s health improved in the latter half of 2017.
[20] During 2016 and 2017 Ms Shousha did not advise the Pharmacy Council of the potential impact that her physical and/or mental health conditions were having, or could have, on her practice as a pharmacist.
[21] Additionally, in or around March 2017, Ms Shousha failed to disclose her illness when she completed her application for a renewal of her Annual Practising Certificate for the 2017/2018 practice year. In response to the question asking whether she had been affected by a mental or physical condition with the potential to affect her fitness to practice pharmacy, since her last application for an Annual Practising Certificate, she answered “No”.
Tribunal decision
[22] Although Ms Shousha did not dispute the facts or that her conduct amounted to professional misconduct, the Tribunal must be satisfied that the evidence supports the charge, and the onus is on the PCC to satisfy the Tribunal. A hearing was therefore convened to determine whether the Tribunal was satisfied that the charge of professional misconduct was established and, if appropriate, impose a penalty.7
[23] The Tribunal’s findings in relation to each of the particulars are in summary as follows:8
Particular 1
[24] The Tribunal noted there were 32 occasions where the refrigerated medicine’s dispensing date recorded in the pharmacy’s dispensing software did not align with the dispensing date recorded in the claims system at the Ministry of Health. All of the dispensing dates in the software were before 19 January 2018 (the date the condition was imposed) but the claim dates with the Ministry of Health were in March to May 2018. The Tribunal noted that Ms Shousha accepted that these medicines had been dispensed after 19 January 2018. The dispensing date recorded in the dispensary
7 Tribunal decision at [2].
8 Refer to charge in the schedule annexed to the judgment for each of the particulars.
software was backdated to 1 January 2018. The Tribunal found, therefore, that Particular 1(a) was established.9
[25] In relation to Particular 1(b) the Tribunal found there was a clear intention to imply that the dispensing had occurred before the date of the Ministry’s condition and that the records had been amended or falsified in order to give that impression. Particular 1(b) was therefore found to be established.10
Particular 2
[26] The Tribunal noted it was agreed that there were a further five occasions where Ms Shousha dispensed medications that required refrigeration but she did not falsify the records for these occasions. The Tribunal found that Particular 2 was established.11
Particular 3
[27] During the third audit a number of empty chilly bins were located and one of the containers had a courier label from a wholesaler dated 4 July 2018. The Tribunal said this indicated that medicines requiring refrigeration had recently been received by the pharmacy. It noted it was an agreed fact that Ms Shousha and/or the pharmacy ordered medicines requiring refrigeration storage on 33 occasions after the imposition of the Ministry’s condition.12
[28] The Tribunal referred to Ms Shousha’s response to this particular when she said that the refrigerated medicines were not “dispensed” but were borrowed from another pharmacy to enable cover for repeat prescriptions. Patients had returned to the pharmacy for those repeats. She then needed to order the medications from a wholesaler to return them to other pharmacies. The Tribunal found that Particular 3 was established.
9 At [17].
10 At [18].
11 At [19].
12 At [20].
Particular 4
[29] At the first audit the consistent maintenance of fridge temperatures between 2 and 8 degrees was identified as a “critical risk compliance” criterion. There were no fridge temperature records apart from one reading for 9 October 2017 and one recording for 17 January 2018.
[30] At the second audit on 24 January 2018 the January fridge records were attached to the fridge and temperatures had been consistently recorded following the audit a week earlier and were consistently in range. However, records provided for 2017 were incomplete with temperatures recorded on average only 15 days per month.
The Tribunal found Particular 4(a) was established.13
[31] In relation to Particular 4(b) Ms Shousha admitted the particulars that the records for July 2017 and August 2017 were not contemporaneously recorded and/or did not identify who had completed various temperatures recorded.14 She also said she had re-written some of the fridge temperature records after she spilled coffee on them. The Tribunal found Particular 4(b) was established.
[32] As to Particular 4(c), the Tribunal accepted that it was not clear whether the refrigeration temperature records for September 2017 related to September 2012 or September 2017. The Tribunal stated that the September 2012 records had been overwritten with a seven to make the year look like 2017. It found Particular 4(c) was established.15
[33] In relation to Particular 4(d) the Tribunal found that the refrigeration temperature records for November 2017 were separately located in a retail drawer. Ms Shousha accepted that and said that the records were sometimes placed there when the temperature recording activity was interrupted by other matters. The Tribunal found Particular 4(d) was established.16
13 At [22] and [23].
14 At [27].
15 At [25].
16 At [28].
[34] In relation to Particular 4(e), during the first audit inspection on 17 January 2018 Ms Shousha was observed in a side room leaning over paper records for December 2017. She was asked if she was fabricating records and did not respond. She would not supply the December 2017 records stating they were “not accurate”.
The Tribunal found Particular 4(e) was established.17
[35] As far as Particular 4(f) was concerned, at the second audit Ms Shousha could provide no evidence of current cold chain accreditation. She said that staff training on fridge temperature recording had occurred but there was no documentation demonstrating this. The Tribunal found Particular 4(f) was established.18
[36] Finally in relation to Particular 4(g), following the first audit Ms Shousha purchased a new digital minimum/maximum thermometer for the pharmacy fridge. Although the fridge had been inspected by a technician there was no evidence that an accuracy test of the thermometer had been undertaken by the technician or that Ms Shousha had performed a validation. The Tribunal found Particular 4(g) established.19
Particular 5
[37] This particular related to the failure to ensure that the pharmacy’s dispensary was maintained in an acceptable manner so as to minimise the risk of harm. The Tribunal noted that under the relevant Regulations and the Pharmacy Quality Audit Framework, premises are required to be suitable for the provision of pharmacy services and maintained in a manner that minimises the risk of harm to the service providers and customers. The Tribunal noted that Ms Shousha accepted that she failed to maintain the pharmacy as shown in the examples listed in Particular 5 which were shortcomings identified in the first audit. It found that Particulars 5(a) to (f) were established.20
17 At [24].
18 At [30].
19 At [31].
20 At [32] and [33].
Particular 6
[38] Ms Shousha accepted that at the third audit on 9 July 2018 it was found that medicines requiring refrigeration were stored in the staff fridge with a number of foodstuffs such as an opened bottle of juice, a piece of fruit, food packages and an uncovered box of leftover food. The fridge was not clean and there was no temperature monitoring for the staff fridge. The Tribunal found Particular 6 was established.21
Particular 7
[39] Ms Shousha told the auditor at the first audit that she was a qualified pharmacist vaccinator but the auditor was not able to verify this. It was later established during the second audit that Ms Shousha had provided vaccination services to at least five clients but could not demonstrate that she was suitably qualified or authorised to provide these services at that time. Ms Shousha advised that she had had years of experience undertaking vaccinations and other injections and that she had enrolled and paid for a refresher course but had then overlooked completing the course. She said that this was around the time that both her sister and her brother died. The Tribunal found Particular 7 was established.22
Particular 8
[40] This particular alleged that in or around 2016 and/or 2017 Ms Shousha did not advise the Pharmacy Council of the potential impact that her physical and/or mental health conditions were having or could have on her practice as a pharmacist. Ms Shousha referred to an email of 21 January 2016 she sent to Mr Owain George, the Registrar at the Pharmacy Council. The Tribunal noted it was a brief email which contained redactions but the relevant unredacted content told Mr George that a person “was very rude to me since he knew about my breast cancer”. The Tribunal did not consider that was an attempt to notify the Council of the cancer diagnosis or more importantly the impact it was having on Ms Shousha’s practice. It found Particular 8 established.23
21 At [34].
22 At [35] to [37].
23 At [40] and [41].
Particular 9
[41] I have already referred to Ms Shousha’s completion of the application form for her Annual Practising Certificate regarding fitness to practice. Ms Shousha’s response was that she was feeling well by the time she renewed her practising certificate in March 2017 and by that time she had returned to some of her normal activities such as swimming and going to the gym. Her position, further, was that at the time of the application for renewal she considered she was in a good state both physically and mentally. However, the Tribunal also noted another response by Ms Shousha that she regained her “normal life in the second half of 2017”. The Tribunal found that the answer to Ms Shousha’s question in the application form was not true. Particular 9 was established.24
[42] As to whether the above findings constituted professional misconduct the Tribunal considered that carrying on business in direct contravention of the Ministry’s condition was a significant breach of Ms Shousha’s legal and ethical obligations and created a risk of harm to the public.25 It further found that Ms Shousha’s actions were in breach of the Pharmacy Council’s code of ethics.26 The Tribunal found that Particulars 1(a), 2 and 3 each amounted to malpractice and conduct likely to bring discredit to the profession and found she acted in flagrant disregard of the conditions imposed.27
[43] As to Ms Shousha’s conduct in amending records to imply that dispensing had occurred prior to the imposition of the condition the Tribunal noted this was inherently dishonest and seriously called into question her fitness to be a member of the profession. The Tribunal found this was both malpractice and conduct likely to bring discredit to the pharmacy profession.28
[44] The Tribunal agreed with the PCC that reliable and contemporaneous record- keeping by health practitioners is a cornerstone of protecting public safety.29 It further
24 At [45] and [46].
25 At [61].
26 At [62].
27 At [64].
28 At [65].
29 At [68].
found that Ms Shousha’s failure to maintain the dispensary in an appropriate manner fell well below the standard expected of a reasonable pharmacist and attracted the disapproval of her peers. The Tribunal found this amounted to negligence of a significant degree and was also conduct likely to bring discredit to the profession.30
[45] In relation to Particular 8, while the Tribunal was “very critical” of Ms Shousha’s failure to notify the Pharmacy Council of her health status, it said that in light of no positive obligation for her to do so the Tribunal had decided that did not amount to malpractice and was not sufficiently serious to warrant a disciplinary sanction. It was, however, negligent. The Tribunal found that Particular 9 amounted to professional misconduct.
Penalty
[46] The Tribunal summarised the relevant legal principles regarding penalty31 and considered the parties’ submissions.32 The Tribunal then made its own assessment of aggravating and mitigating factors,33 set out matters of most concern,34 made a comparison with other cases,35 and gave its decision.36 I will return to case comparisons. I set out the matters of most concern to the Tribunal and the reasons for its decision below.
[47] Particular considerations the Tribunal focused on in determining penalty were as follows:
(a)The Tribunal formed the view that Ms Shousha seemed to lack awareness of the risks of patient harm from her actions and it had significant concerns about her appreciation of the reasons for legal compliance and her understanding of issues affecting patient safety.37
30 At [71].
31 At [84] and [85].
32 PCC at [86] to [93] and Ms Shousha at [94] to [95].
33 At [96] to [100].
34 At [101].
35 At [103] to [107].
36 At [108] to [112].
37 At [99] and [100].
(b)Of most concern to the Tribunal were:
(i)Provision of unauthorised vaccination services; the Tribunal considered Ms Shousha did not understand the risks arising from her lack of up-to-date training and poor vaccine storage conditions;38
(ii)Disregard for conditions imposed on her licence;39 and
(iii)Falsification of the dispensary record.40
[48] The Tribunal also considered Ms Shousha failed to respond to issues raised in the audits and had not engaged in rehabilitation and continuing professional development.
[49]The Tribunal then summarised its reasons as follows:
[108] Ms Shousha’s shortcomings cover a range of matters. The Tribunal does not have confidence in Ms Shousha’s fitness to practise as a pharmacist on several bases. She has been both negligent and dishonest. Ms Shousha has altered records and made a false declaration in applying for a practising certificate. The Tribunal are also not satisfied that Ms Shousha has a proper understanding or regard for patient safety. By altering records Ms Shousha has compromised the patient’s health record, which could affect the timing of further prescribing or dispensing. She has had little or no regard for the need to maintain medication between 2 and 8 degrees and could provide no evidence of cold chain accreditation or staff training. She has operated a messy pharmacy where mistakes are more likely to be made and has not maintained adequate records herself or ensured staff have done so. She had provided vaccination services without proper updates and accreditation, and as outlined above at paragraph 101(a).
[50] The PCC submitted that the Tribunal ought to consider cancellation. In the alternative, the PCC said the Tribunal should impose a two-year period of suspension. The Tribunal concluded that cancellation was the appropriate penalty, and said:
[110] In our view the need to protect the public from unsafe practices is of paramount importance. We are not satisfied that Ms Shousha is currently amenable to rehabilitation. The Tribunal has decided that cancellation is the
38 At [101](a).
39 At [101](c).
40 At [101](b).
appropriate penalty. It is the least restrictive in light of our concerns about her fitness to practise and the need to protect the public from harm.
Approach on appeal
General principles of penalty appeal
[51] The Health Practitioners Competence Assurance Act 2003 (HPCAA) sets out the penalties which the Tribunal may impose.41 Available penalties in the current case were:
(a)Cancellation of registration.
(b)Suspension for a period not exceeding three years.
(c)Practice subject to specified conditions for a period not exceeding three years.
(d)Censure.
(e)Fine not exceeding $30,000.
(f)Order for costs.
[52] The HPCAA does not list the factors that the Tribunal (or Court) must consider when deciding which penalty to impose. However, any disciplinary power must be exercised consistently with the principal purpose of the HPCAA, which is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.42
[53] The general principles on penalty appeals are well-settled. In Roberts v Professional Conduct Committee of the Nursing Council,43 this Court set out the matters which the Tribunal is required to consider in determining a penalty:
41 Section 101(1).
42 HPCAA, s 3(1).
43 Roberts v Professional Conduct Committee of the Nursing Council [2012] NZHC 3354 at [44] – [51].
(a)Public protection and deterrence.
(b)Identifying and enforcing appropriate professional standards.
(c)Punitive function (incidental).
(d)Rehabilitation.
(e)Consistency with other cases.
(f)Maximum penalties for the worst disciplinary offence.
(g)Imposing the least restrictive penalty.
(h)Ensuring that overall, the penalty is fair, reasonable, and proportionate.
[54] The factor in [53](c) above “Punitive function (incidental)” requires further discussion. It was not in dispute between the parties that punishment in itself is not a principle of discipline for the Tribunal to consider. In Z v CAC, McGrath J said:44
[97] ... It is well established that professional disciplinary proceedings are civil and not criminal in nature. That is because the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure that appropriate standards of conduct are maintained in the occupation concerned.
[55]In the more recent case of Singh v Director of Proceedings Ellis J held:45
As s 3 makes clear, it is the protection of the public’s health and safety by ensuring that health practitioners are competent and fit to practise that must be the principal focus of disciplinary action. That object has primacy over any punitive purpose. So while, for example, it has long been recognised that de- registration or suspension necessarily has a punitive effect, that should not be the principal purpose (or effect) of making such an order.
…
On my own reading of Roberts, Collins J did not say that punishment was a necessary focus of the disciplinary penalty exercise. Rather he merely accepted (as I have above) that punishment may be an incident of such an
44 Z v CAC [2009] 1 NZLR 1 (SC) at [97] (footnote omitted).
45 Singh v Director of Proceedings [2014] NZHC 2848 at [55]–[59].
exercise and acknowledged that a decision by the Tribunal to impose a fine appears, necessarily, to be punishment-oriented.
[56]Her Honour went on to say:
… I have reservations about the role that punishment should play where a choice is to be made between suspension and deregistration. More particularly, I would be uncomfortable with any suggestion that a practitioner should be deregistered merely because the conduct in question required a more “punitive” sanction than suspension. Any such punitive focus appears to me to risk a diversion from the central issues, which are the practitioner’s fitness to practise and ensuring that public health and safety are protected.
[57] More generally on the appropriate approach, in Katamat v Professional Conduct Committee,46 Williams J reviewed relevant judicial decisions and summarised the appropriate approach to assessing the various factors as follows:
[53] In summary, the case law reveals that several factors will be relevant to assessing what penalty is appropriate in the circumstances. Some factors, such as the need to protect the public and to maintain professional standards, are more intuitive in their application. Others, such as the seriousness of offending and consistency with past cases, are more concrete and capable of precise evaluation. Of all the factors discussed, the primary factor will be what penalty is required to protect the public and deter similar conduct. The need to punish the practitioner can be considered, but is of secondary importance. The objective seriousness of the misconduct, the need for consistency with past cases, the likelihood of rehabilitation and the need to impose the least restrictive penalty that is appropriate will all be relevant to the inquiry. It bears repeating, however, that the overall decision is ultimately one involving an exercise of discretion.
[58]In cases of cancellation, the following principles are particularly relevant:
(a)The primary purpose of cancellation or suspension is to protect the public and the choice between the two turns on what is proportionate.47
(b)Cancellation is ordered not by way of punishment but because the person is not a fit and proper person to remain registered.48
46 Katamat v Professional Conduct Committee [2012] NZHC 1633.
47 A v Professional Conduct Committee HC Auckland CIV 2008-404-2927, 5 September 2008, at [81].
48 Professional Conduct Committee v Martin HC Wellington CIV 2006-485-1461, 27 February 2007, at [24].
(c)The Tribunal must consider the available alternatives to cancellation, and explain why less severe options have not been adopted in the circumstances of the case.49
[59]As to the third principle above, in Patel v Dentists Disciplinary Tribunal,
Randerson J observed:50
[30] The consequences of removal from a professional register are ordinarily severe and the task of the Tribunal is to balance the nature and gravity of the offences and their bearing on the dentist’s fitness to practice against the need for removal and its consequences to the individual: Dad v General Dental Council [2002] 1 WLR 1538. As the Privy Council further observed at 1543:
Such consequences can properly be regarded as inevitable where the nature or gravity of the offence indicates that a dentist is unfit to practise, that rehabilitation is unlikely and that he must be suspended or have his name erased from the register. In cases of that kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of the penalty to the individual.
[31] I respectfully adopt the observations of the Privy Council and would add that it is incumbent on the Tribunal to consider carefully the alternatives available to it short of removal and to explain why the lesser options have not been adopted in the circumstances of the case. As well, while absolute consistency is something of a pipe dream, and cases are necessarily fact dependent, some regard must be had to maintaining reasonable consistency with other cases. That is necessary to maintain the credibility of the Tribunal as well as the confidence of the profession and the public at large. Grounds of appeal
[60] The above observations by Randerson J were noted by Lang J in a further appeal by Dr Patel against a decision of the Dentists Disciplinary Tribunal. Lang J referred to those observations saying:51
These observations make it clear that before a Tribunal makes an order removing a practitioner’s name from a professional register, it will generally be required to carefully consider the alternatives that are available to it short of removal. In the event that it elects to remove the practitioner’s name from the register, it is incumbent on the Tribunal to explain why the lesser alternatives are not being adopted in the circumstances of the case.
49 Patel v Dentists Disciplinary Tribunal HC Auckland AP77/02, 8 October 2002, at [31].
50 Patel v Dentists Disciplinary Tribunal, above n 49.
51 Patel v Complaints Assessment Committee HC Auckland, CIV-2007-404-1818, 10 August 2007 at [26].
[61] This point was also made clear by Ellis J in Singh v Director of Proceedings when considering an appeal against an order cancelling the registration of a medical practitioner. Under the heading “Is deregistration the only available option?” the Judge made her assessment of whether the purposes of the HPCAA could be met by the imposition of a lesser penalty and agreed, by a very narrow margin, that public safety would be adequately protected if Dr Singh was suspended for a relatively lengthy period and his name was published.52
Approach to penalty appeals
[62] An appeal against a decision of the Tribunal may be brought as of right.53 It proceeds by way of a re-hearing.54 The Court may “confirm, reverse, or modify the decision or order appealed against”, or make any decision or order that could have been made by the Tribunal.55
[63] Both counsel addressed the Court on whether an appeal against penalty is an appeal against an evaluative decision, or whether it is an appeal against the exercise of a discretion.
[64] The distinction between an evaluative and discretionary decision has been considered by the Court of Appeal in Taipeti v R. The Court reviewed relevant authorities and identified various distinguishing features of the two categories.56 In summary, discretionary decisions may reflect the first instance decision-maker’s personal appreciation of the particular circumstances of the case, are typical of procedural decisions, and are appropriate where multiple legally “right” outcomes are available. An appeal will only be allowed where a discretionary decision is “plainly wrong” because the range of correct outcomes is relatively broad. In contrast, evaluative decisions follow prescribed decision-making requirements, involve the application of the law to the facts of the case, and have only one legally possible correct outcome (even if there may be scope for argument as to what it is). An appeal
52 Singh v Director of Proceedings, above n 45, at [85]–[89].
53 HPCAA, s 106(2)(b) and (d).
54 HPCAA, s 109(2) and High Court Rules 2016, r 20.18.
55 HPCAA, s 109(3).
56 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [49].
by way of re-hearing will follow the prescribed decision-making process to check that the correct result has been reached.
[65] Mr Waalkens QC, for Ms Shousha, submits that it is now well-established that a court hearing appeals against decisions on penalty should follow an Austin, Nichols evaluative approach. 57
[66] Mr Coates for the PCC, submits that while the PCC does not accept the submission that the Austin, Nichols approach is now well-established, it acknowledges that in more recent times the High Court has followed such an approach. Mr Coates drew the Court’s attention to comments by Downs J in Emmerson v Professional Conduct Committee of the Medical Council of New Zealand where the Judge concluded “with considerable reluctance”, that penalty appeals are to be approached as general appeals as “it would be unhelpful to swim against the tide”.58
[67] The PCC’s position is that May v May59 is the proper approach (ie an appeal against the exercise of a discretion). However, it acknowledges the approach taken by Downs J in Emmerson is a reasonable approach to take, at least until the matter is considered by the Court of Appeal. In any event Mr Coates submits that this Court should not interfere with the Tribunal’s penalty decision, regardless of the approach on appeal.
[68] I do not have the same “reluctance” as Downs J and will proceed on the basis that the appeal is a general appeal. That means that Ms Shousha bears the onus of satisfying this Court on appeal that it should differ from the decision under appeal. It is only if this Court considers that the decision appealed against is wrong that it is justified in interfering with it. The position was summarised in Austin, Nichols by Elias CJ as follows:60
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate
57 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
58 Emmerson v Professional Conduct Committee of the Medical Council of New Zealand [2017] NZHC 2847, at [96].
59 May v May (1982) 1 NZFLR 165 (CA).
60 Austin, Nichols, above n 57, at [16] (footnote omitted).
court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
Approach to costs appeals
[69] The parties take a similar stance in relation to the approach on appeal against the Tribunal’s decision on costs. Mr Coates submits that the discretionary nature of costs decisions is well-established and that, consequently, the approach on appeal should follow May v May. Mr Waalkens submits that a costs decision under the HPCAA is a decision regarding penalty and is therefore an evaluative decision. He refers to both TSM v Professional Conduct Committee61 and Rabih v Professional Conduct Committee62 where this Court agreed that the Austin, Nichols approach to penalty was appropriate in all respects (the Court did not distinguish between the approach to an appeal against costs and an appeal against other penalties).
[70] The HPCAA and the High Court Rules 2016 both stipulate that appeals against Tribunal decisions in this Court are by way of re-hearing.63 The statutory language indicates that an appeal against a costs decision of the Tribunal is a general appeal. This weighs in favour of the approach to general appeals set out in Austin, Nichols.64
[71] On the other hand, the Supreme Court in Shirley v Wairarapa District Health Board confirmed that the costs jurisdiction is discretionary.65 The nature of costs awards as discretionary was recently affirmed by the Court of Appeal in Kinney v Pardington:66
Questions of costs are ultimately a matter of discretion. The exercise often requires assessment of a wide range of factors. The overall objective is to achieve an outcome that best meets the interests of justice in the given case in accordance with any applicable costs rules and consistent with established principles. The trial judge is uniquely placed to make this assessment. It is well-settled that an appellate court should not interfere with a costs award unless satisfied that the judge acted on a wrong principle, failed to take
61 TSM v Professional Conduct Committee [2015] NZHC 3063.
62 Rabih v Professional Conduct Committee [2015] NZHC 1110.
63 HPCAA, s 109(2); High Court Rules, r 20.18.
64 Austin, Nichols, above n 46, per Elias CJ at [16].
65 Shirley v Wairarapa District Health Board [2006] NZSC 63 at [14].
66 Kinney v Pardington [2021] NZCA 174 at [1].
account of some relevant matter, factored in the irrelevant or was plainly wrong. This is why appeals against costs awards seldom succeed.
[72] An appeal against a discretionary decision is approached according to the error principle set out by the Court of Appeal in May v May.67 On this approach, an appellate court should not interfere unless satisfied that the Judge who made the order “acted on a wrong principle, or failed to take into account some relevant matter, or took account of some irrelevant matter, or was plainly wrong”. If this is the correct approach, Ms Shousha must establish that the Tribunal’s decision was contrary to principle, the Tribunal decision-maker failed to consider all relevant matters or considered irrelevant matters, or the decision was plainly wrong.
[73] Although the HPCAA does not specify the factors which the Tribunal must consider when making a costs order, these have previously been set out by this Court as follows:68
(a)professional groups should not be expected to bear all the costs of the disciplinary regime;
(b)members who appeared on charges should make a “proper contribution” towards costs;
(c)costs are not punitive;
(d)the practitioner’s means, if known, are to be considered;
(e)a practitioner’s defence should not be deterred by the risk of a costs order; and
(f)in a general way 50 per cent of reasonable costs is a guide to an appropriate costs order subject to a discretion to adjust upwards or downwards.
67 May v May, above n 59.
68 Vatsyayann v Professional Conduct Committee of the New Zealand Medical Council [2012] NZHC 1138.
[74] This range of considerations indicates an evaluative assessment of competing interests and principles.
[75] Although the language used by the Court of Appeal in Kinney v Pardington lends force to the argument that costs decisions are always a matter of discretion, the Court in that case was hearing an appeal against a costs decision of the High Court made by a judge who had “had the carriage of the proceedings over the preceding three years” and delivered a “comprehensive” judgment. The principle of “deference” towards the trial judge’s decision-making on costs was therefore in play, and the appeal was dismissed on all grounds. However, the Tribunal, like all disciplinary tribunals, is bound by its empowering statute, in this case the HPCAA. The express wording of the statute therefore outweighs the general principles associated with judicial decision- making on costs.
[76] The approach on appeal against a costs order made by the Tribunal was considered by this Court in Beer v Professional Conduct Committee.69 Edwards J reviewed relevant authorities and held that there were “good reasons to say that the Tribunal’s decision regarding costs involves an evaluative approach”, and that appeals against costs orders should be approached according to Austin, Nichols, rather than May v May. I agree.
[77] In this Court, the proper approach to an appeal against a costs order made by the Tribunal is according to Austin, Nichols. This is consistent with the approach this Court takes to appeals against a penalty decision, as discussed above. Ms Shousha is therefore entitled to a re-hearing, and a judgment in accordance with the opinion of this Court.
Deference to Tribunal’s decision
[78] Mr Coates submits that this is a case that warrants “a reasonably high degree of deference” to the Tribunal’s decision. He notes that the Tribunal comprised a majority of practising pharmacists who sat on the Tribunal as Ms Shousha’s professional peers. He submits that where a disciplinary charge relates to matters that
69 Beer v Professional Conduct Committee [2020] NZHC 2828 at [9] – [21].
are not technical in nature such as, for example, unprofessional conduct outside the workplace or sexual misconduct in the workplace, the Court may be as well placed as the Tribunal to assess the merits of the case. But in this instance, Mr Coates says Ms Shousha’s misconduct goes to the heart of safe pharmacy practice.
[79] Mr Coates refers to the comment by Simon France J in A v Professional Conduct Committee that deference to the Tribunal is appropriate because “It is well- established that a specialist tribunal may, and indeed is expected to, assess the evidence using its professional knowledge and experience”.70 Mr Coates also refers to Williams v Professional Conduct Committee of the Medical Council where Wylie J said:71
[103] The legislature has entrusted the Tribunal, comprising in large part health practitioners, with bringing their collective judgment to bear on individual fact situations, and in determining whether or not conduct by a health practitioner is likely to bring discredit on the medical profession. The decision in this regard essentially calls for a value judgment. The Tribunal acts in a representative capacity, formulating standards which of themselves are representative. It is an expert body, well placed to assess and evaluate the seriousness of a practitioner’s conduct. Deference is appropriate in respect of the Tribunal’s judgment on such matters.
[80] While I do not take issue with the statements from the two cases referred to above, I note, however, that both cases involved appeals against findings of liability. In this case there is no such challenge. Mr Waalkens made it clear that Ms Shousha accepts that this was serious misconduct. There is also the issue, yet to be discussed and determined, as to whether the Tribunal considered alternatives to cancellation of registration as it is required to do. If such consideration is lacking then this Court, of course, will need to make its own assessment.
[81] Finally, on this issue, I note and endorse the further statement by Simon France J in A v Professional Conduct Committee:72
… Here also the Tribunal is an expert body and deference is appropriate in terms of its judgments on matters such as the appropriateness of actions and treatments, and the seriousness of any breach. The Court obviously is not expert in such matters, although this should not be overstated both because
70 A v Professional Conduct Committee [2018] NZHC 1623 at [17].
71 Williams v Professional Conduct Committee of the Medical Council [2018] NZHC 2472 at [103], (footnote omitted).
72 A v Professional Conduct Committee, above n 70, at [5].
there will be evidence on the point and the legislation, by virtue of making this a general appeal, confers that appellate task on the Court.
Grounds of Appeal
[82] Mr Waalkens submits that the decision to cancel Ms Shousha’s registration was wrong. It was certainly harsh and excessive. He says the Tribunal:
(a)Overstated the seriousness of Ms Shousha’s conduct:
(i)By failing to direct itself as to whether alternatives to cancellation would be an appropriate penalty in the circumstances; and
(ii)In its assessment of Ms Shousha’s conduct in comparison with other cases;
(b)Incorrectly determined that Ms Shousha was not amenable to rehabilitation;
(c)Incorrectly considered punishment to be a relevant factor;
(d)Failed to recognise Ms Shousha’s cultural differences – particularly in the context of assessing remorse/insight; and
(e)Failed to recognise the ancillary implications of cancellation, given Ms Shousha had not sought name suppression.
[83]I will consider each of these factors in turn.
Seriousness of offending: (a) cancellation versus alternative penalties
[84] Mr Waalkens submits that while the Tribunal referred to the PCC’s submissions which cited two High Court decisions from which the principles relating to cancellation may be derived, it did not then direct itself to consider the alternatives available to it short of cancellation of registration. Nor did the Tribunal explain why the lesser options had not been adopted in the circumstances of the case; it was
incumbent on the Tribunal to do so, and carefully. Mr Waalkens submits that, while the evidence established serious misconduct warranting discipline, it would be wrong to say that the primary purpose of protecting the public and the secondary purpose of setting standards for the profession could not be met in any way other than by cancellation of registration.
[85] When determining the penalty, the Tribunal said “… cancellation is the appropriate penalty. It is the least restrictive in light of our concerns about her fitness to practice and the need to protect the public from harm”.73 In my view, this is the closest the Tribunal came to considering lesser alternatives. However, the Tribunal did not articulate why that objective could not realistically be achieved through a lesser penalty such as suspension with the imposition of appropriate conditions. I accept Mr Waalkens’ submission that the Tribunal should have done so. It will, therefore, be necessary for this Court to consider alternatives. I will do so after considering all the other grounds of appeal as my findings on those grounds may well impact on the appropriateness or otherwise of alternatives in the circumstances of this case.
Seriousness of offending: (b) comparison with other cases
[86] Mr Waalkens notes that ensuring consistency with other cases is just one factor out of eight which the Tribunal is required to consider in determining penalty. He submits, however, the Tribunal spent a significant proportion of its penalty decision comparing Ms Shousha’s case with other cases. Mr Waalkens submits this is of concern as every case should be considered on its own facts, and the Tribunal was wrong to emphasise this single factor. Mr Waalkens further says that even when undertaking this exercise the Tribunal incorrectly found that Ms Shousha’s case was comparable to the most serious cases referred to it. Mr Waalkens submits that Ms Shousha’s conduct is akin to those cases involving pharmacists that are considered moderately serious and resulted in a penalty other than cancellation.
[87] I will confine my discussion and consideration to cases involving pharmacists. While other cases referred to by counsel involving other professions are helpful in relation to general principles, the cases involving pharmacists are most relevant here.
73 At [110].
I will refer to the cases in descending order of seriousness by reference to the penalty imposed starting with those where cancellation of registration was ordered.
Katamat74
[88] Mr Katamat denied liability. The Tribunal found him guilty of professional misconduct. The penalty included cancellation of registration and censure, both of which were upheld on appeal.75 A useful summary of the facts is to be found in the Tribunal decision in Musuku which I adopt:76
Mr Katamat was found guilty of professional misconduct in relation to three pharmacies he operated. There were substantial and numerous breaches established, including the failure to maintain records of the sale of prescription only medicines, dispensing controlled drugs in breach of the Misuse of Drugs Regulations, failure to maintain CDR records in the prescribed form, recycling medicines in a manner that posed a risk to public safety, substantial quantities of controlled drugs codeine and sudomyl (being potential drugs of abuse) being unaccounted for in the pharmacy records, selling prescription medicines without prescriptions, and incorrect labeling. The penalty imposed included cancellation of registration and censure, both of which were upheld on appeal. The Tribunal’s imposition of costs against Mr Katamat was overturned on appeal.
Amarsee77
[89] Mr Amarsee’s registration as a pharmacist was cancelled. Mr Amarsee denied each of the three charges. In its decision the Tribunal found him guilty of the charges
– namely that he had engaged in conduct that amounted to professional misconduct. I again adopt the summary of the Tribunal decision in Musuku as capturing the relevant details:78
Mr Amarsee faced three separate charges which arose out of complaints made by a pharmacist who had worked at the pharmacy and other health providers. Mr Amarsee was found guilty of professional misconduct including fraudulent claiming from the Ministry of Health for a period of over one year, practicing [sic] while suspended, failures in relation to the CDR records and making disparaging comments about another health professional. The Tribunal cancelled the practitioner’s registration due his breach of his suspension, lack of insight, dishonesty and the risk to public safety that existed as a result.
74 Professional Conduct Committee v Katamat Phar10/162P.
75 Katamat (High Court) , above n 46.
76 Professional Conduct Committee v Musuku Phar12/214P, at [159](b) (footnotes omitted).
77 Professional Conduct Committee v Amarsee Phar14/292P.
78 Musuku, above n 76, at [159](d).
Vohora79
[90] The hearing before the Tribunal in relation to one disciplinary charge proceeded in part by way of an agreed summary of facts and in part by oral evidence. The Tribunal found the charge of professional misconduct established and it cancelled Mr Vohora’s registration. Mr Vohora appealed the decision to this Court which allowed the appeal in relation to cancellation and substituted a period of six months’ suspension.80
[91]A summary of the Tribunal decision and its findings is again taken from the
Musuku decision:81
Mr Vohora failed to keep any records of controlled drugs, in breach of the Misuse of Drugs Regulation, over four years. There also were other failures to document Standard Operating Procedures that had persisted over ten years. Mr Vohora had also employed an unqualified person to dispense medicine and himself worked without a practicing certificate. The Tribunal cancelled his registration, placed conditions on re-registration and ordered him to pay 30% of the PCC’s and Tribunal’s costs. The High Court overturned the Tribunal’s decision on appeal, and in doing so, weight was given by the Court to the absence of evidence of actual harm to any patient. The High Court penalty imposed was a suspension of six months and conditions on re-registration for 12 months, with the order for costs upheld.
Taylor82
[92] Mr Taylor was charged with professional misconduct for actions which the Tribunal considered to be “at the more serious end of the spectrum”.83 Mr Taylor practised as a pharmacist when he did not hold a current practising certificate, supplied excessive quantities of restricted drugs, supplied restricted drugs without recording the patients’ name and address details, supplied prescription medicines without prescription, falsified entries in the controlled drugs register and failed to take steps when a colleague was supplying drugs in quantities that could compromise safety. The Tribunal said:84
79 Professional Conduct Committee v Vohora 400/Phar11/183P.
80 Vohora v Professional Conduct Committee [2012] NZHC 1013.
81 Musuku, above n 76, at [159](c) (footnote omitted).
82 Professional Conduct Committee v Taylor 932/Phar17/388P.
83 At [36].
84 At [36].
… The Practitioner’s misconduct is at the more serious end of the spectrum. For any pharmacist to breach fundamental obligations such as dispensing prescription-only medicines in the absence of prescription, dispensing excessive quantities of pharmaceuticals of abuse and dependence is a serious matter. In addition, in this case, the Practitioner has attempted to avoid responsibility for his conduct by falsifying the pharmacy’s records. And, finally, the Practitioner has failed in his professional responsibility to take steps when he knew or ought to have known the danger to members of the public by the pharmacy’s practices. In those circumstances, the Tribunal has had little difficulty in concluding that the Practitioner’s professional misconduct is serious enough to justify the imposition of a sanction.
[93] The Tribunal did not cancel Mr Taylor’s registration. It said it had seriously to consider whether to do so but continued:85
As against that, we have also had to consider our obligations to have regard to the Practitioner’s prospects of rehabilitation, identify the least punitive penalty which is consistent with the seriousness of the case, and impose a penalty which is fair, proportionate and reasonable.
[94] The Tribunal concluded that the appropriate outcome was the suspension of Mr Taylor’s practising certificate for a period of two years from the date of hearing and the imposition of certain conditions on him if and when he returned to practice in the future.86
Price87
[95] Mr Price faced two charges laid by the PCC. The first related to Mr Price’s conviction on a charge under the Land Transport Act 1998.88 The second charge related to Mr Price’s conduct as proprietor and charge pharmacist of a pharmacy. The Tribunal referred to: 89
... multiple breaches of accepted standards that had occurred over time, giving examples as follows: Not establishing the sterility of starting ingredients; insufficient regard for the appropriate standards of sterility; risk of degradation of product through an inadequate courier system; failure to head significant concerns from responsible colleagues; taking advantage of a vulnerable/untrained person who employment appeared to have occurred because of the particular work requiring prescriptions had increased; and disregard for expiry dates amounting to dishonesty on the part of a practitioner.
85 At [51].
86 At [54].
87 Professional Conduct Committee v Price Phar09/134P.
88 Which the Tribunal found proven but which I put to one side for the purpose of this discussion.
89 At [67].
[96] The Tribunal considered that the multiple breaches could only be considered as a flagrant disregard for the accepted standards, were very serious, and undoubtedly warranted discipline. However, in considering penalty the Tribunal noted that at the relevant times Mr Price had been suffering significant personal issues and had also suffered ill-health. Because the Tribunal considered that very significant patient safety and poor practice factors were involved90 it gave serious consideration to the possibility of cancelling Mr Price’s registration.91 The Tribunal, however, then stated:
84. The Tribunal, however, is also mindful of the necessity to consider rehabilitation. There are elements of the context in this case which suggest that a partially rehabilitative approach is appropriate.
85. Weighing both the deterrent factors on the one hand, and the rehabilitative factors on the other, the Tribunal was ultimately persuaded that it did not need to go as far as outright cancellation, but that the matter could be dealt with by suspension for a period of two years, and conditions governing any return to practise.
Osborne92
[97] Mr Osborne was suspended for a period of three months, was censured, conditions were imposed, he was fined $10,000 and required to pay costs. The summary of the decision taken from Musuku which I adopt, is as follows: 93
Mr Osborne was found to have breached requirements for the recording and custody of controlled drugs, standard operating procedures and recycling and storage of medicine which posed a risk to patient safety. Mr Osborne also admitted that he had delegated pharmacy tasks to five unqualified persons, who were not lawfully entitled to carry out the delegated tasks. There were also deficiencies relating to the pharmacy equipment and premises. The conduct had persisted over 18 months and was assessed as posing a risk to public safety. The practitioner was suspended for 3 months, censured and conditions were placed on his return to practice for 12 months, requiring him to undertake education and mentoring. An order for payment of 30% of the PCC and Tribunal’s costs was also imposed.
[98] In coming to its decision on penalty the Tribunal noted it had a significant concern in relation to the period of time over which investigations were conducted and Mr Osborne’s repeated and continued failure to meet standards.94
90 At [79].
91 At [83].
92 Professional Conduct Committee v Osborne Phar/12/214P.
93 Musuku, above n 76, at [159](a).
94 Osborne, above n 92, at [145].
[99] The Tribunal further noted that there were a number of aspects to the charge in the respective particulars; there were a variety of issues in respect of pharmacological practice; it was not until the threat of suspension of his licences that Mr Osborne realised the gravity of the situation and sought advice; Mr Osborne did not seem to have awareness of how the matters of the offence might impact on the professional delivery of services and that there was in many respects a real threat to public safety; and, even once he had the benefit of advice, Mr Osborne still continued to delay or default in addressing issues.95
[100] On the other hand the Tribunal noted that when he finally realised the gravity of the situation he was in, under threat of suspension, Mr Osborne took professional advice which he paid for and followed.96 The Tribunal also noted there was no evidence of any patient having in fact come to harm.97 As noted, the Tribunal suspended Mr Osborne’s registration for a period of three months along with other penalties referred to above.
Musuku98
[101] Mr Musuku was a pharmacist who was found guilty of professional misconduct for (a) failing to comply with legislative and ethical standards set for the pharmacy profession to safely operate a pharmacy and (b) persistently disregarding safe dispensing and controlled drug procedures over a period of three-and-a-half- years. The particulars of the charge related to the storage and dispensing of unpreserved eye drops; failure to comply with storage and record-keeping requirements; sale of a certain prescription medicine without having completed the required training in the treatment of urinary tract infections; unethical conduct in relation to three audits (failing to remedy the concerns identified and incorrectly advising that he had done so); and unethical conduct in relation to a Health and Disability Commissioner investigation (failing to respond appropriately to requests for information).
95 At [190].
96 At [191].
97 At [191].
98 Musuku, above n 76.
[102] The Tribunal noted that the principal aggravating features were the lengthy period of time over which Mr Musuku failed to ensure compliance and his continued lack of accountability.99 The Tribunal said that during the course of his evidence to the Tribunal Mr Musuku continued to demonstrate a lack of accountability.100 On the other hand the Tribunal found there were material mitigating factors: it was Mr Musuku’s first appearance before the Tribunal over a lengthy career; there was no evidence of actual patient harm; Mr Musuku did make efforts to comply with the three audits; his eye drop practice was borne out of genuine belief that it was a safe practice, and there was evidence that Mr Musuku was well-regarded by a senior clinician with whom he had worked over a lengthy period.101
[103] The Tribunal considered the appropriate penalties were censure, the imposition of conditions, and costs.
Kardaman102
[104] Mr Kardaman was a pharmacist who was found guilty of professional misconduct along with a colleague with whom he practised. The charges arose from a subsidy audit and a follow-up audit conducted by the Ministry of Health. As a result of these audits, an overpayment claim in excess of $130,000 for a 12-month period was raised by the Ministry of Health and paid by the pharmacy.
[105] The charge alleged that the pharmacists: acted in breach of close control dispensing requirements; made inappropriate dispensing claims; delivered medication to patients in an inappropriate manner; failed to ensure their commercial interests did not override their professional judgment; and breached the code of ethics.
[106] In relation to penalty the Tribunal considered that the aggravating factors included: the invalid claiming and other systemic errors which continued for a period of no less than six months; multiple issues stemming from the practitioners operating seven pharmacies resulting in resources being stretched and attention to detail waning;
99 At [162].
100 At [162].
101 At [163].
102 Professional Conduct Committee v Kardaman 590/Phar/13250 and 215P.
the practitioners blamed others for the multiple errors which arose even though they accepted legal liability; and the practitioners’ conduct in relation to “close control dispensing” which resulted in their receiving an increase in payments that would not otherwise have been the case.103
[107] On the other hand, the Tribunal considered mitigating factors were that the overpayment was repaid without challenge; the practitioners had complied with the audit recommendations and introduced improvements; there was accordingly an appropriate acceptance of responsibility and there was no evidence of patients being harmed.104
[108] In relation to the mitigating factors the Tribunal considered there had been “some insight displayed by the practitioners” although they said in their evidence they felt they had been let down by others.105
[109] The Tribunal determined that, adopting a least restrictive approach and having regard to the acknowledgment of problems that should be remedied, it was persuaded “by a narrow margin that there should not be an order of suspension”.
Analysis
[110] Having regard to the above cases I accept Mr Waalkens’ submission that if the Tribunal had taken a consistent approach with those cases it would not have placed this case in the category of the most serious of cases. In particular I note:
(a)In Katamat Mr Katamat’s defence to the charge at the substantive hearing was that he had been set up by others who were out to bring him down for reasons which were largely unexplained. The Tribunal rejected those defences. In the penalty hearing, Mr Katamat again advanced that defence as part of his submission on penalty. The Tribunal considered this showed a significant lack of appreciation both
103 At [136].
104 At [137].
105 At [143].
of the process but more importantly of the findings of the Tribunal.106 Katamat also concerns significant breaches of standards involving controlled drugs which had the potential for abuse and misuse. In my view these factors contribute to making the conduct in Katamat more serious than in the present case;
(b)Amarsee involved complaints made by members of the public concerned about patient safety and professional standards. Amarsee also concerned breaches of standards involving controlled drugs which involved the potential for abuse and misuse. Additionally, the Tribunal noted that the false claiming by Mr Amarsee amounted to fraud against the public purse which the Tribunal considered was a very serious matter for any health professional.107 Mr Amarsee’s misconduct spanned a two year period and he had already had a period of suspension leading up to the charges and had twice breached the terms of that suspension.108 All of these factors contribute to Mr Amarsee’s conduct being more serious than in the present case;
(c)In Vohora Whata J noted that the practitioner knowingly failed to maintain a controlled drug register or document standard operating procedures in purposeful dereliction of his professional duties. That conduct continued over a period of more than four and ten years respectively (perhaps longer), and the Court found that Mr Vohora’s objective was to undermine the mechanisms put in place by the Council (and other health agencies) to secure competency and fitness to practice.109 The High Court also found it was “readily apparent ... that Mr Vohora still does not grasp the gravity of his misconduct”. Despite these factors the High Court considered suspension was the appropriate penalty. For reasons that I will come to, I consider Ms Shousha did have an appreciation of the gravity of her misconduct. The period of misconduct by Ms Shousha was less than that of Mr Vohora. Although
106 At [176.6].
107 At [91].
108 At [142] and [143].
109 At [11].
her failure to notify particulars goes back to 2016, the conduct in relation to the operation of her pharmacy was for a period of 17 months from February 2017 to July 2018.
(d)There are some similarities to Price in that Mr Price had been suffering significant personal issues and had also suffered ill-health at the relevant times.
Amenability to rehabilitation and cultural differences in the context of assessing remorse/insight
[111]I will consider these two grounds together as they are related.
[112] Mr Waalkens submits the Tribunal incorrectly determined that Ms Shousha was not amenable to rehabilitation. He refers to the Tribunal’s comment that Ms Shousha was not “currently amenable to rehabilitation”.110 Mr Waalkens suggests this statement was seemingly founded on the fact that Ms Shousha had not already commenced a path of rehabilitation.
[113] It is not clear that that was in fact the basis for the Tribunal’s finding but in any event I consider there are factors that point the other way. After the first audit in January 2018, which highlighted that Ms Shousha was not authorised to administer vaccines, she completed a vaccinator training course within a month. Additionally, submissions on Ms Shousha’s behalf to the Pharmacy Council by letter dated 10 August 2018 stated that Ms Shousha wished to take steps proactively to address the concerns of Medicines Control. The letter confirmed that Ms Shousha was:
(a)not practising as a pharmacist and would not return to pharmacy practice until the Council and Medicine Control’s matters were resolved;
(b)willing to undertake a competence review in order to provide the Council with the necessary assurance of her competence;
110 At [110].
(c)in the process of transferring the pharmacy to a new company (to be incorporated) to be under the effective control of her daughter who is a registered pharmacist;
(d)willing (with her daughter) to engage an independent pharmacist adviser to advise and assist to ensure that all practices and procedures were undertaken in accordance with all regulatory requirements and professional standards. She further agreed that the report of the pharmacist adviser would be made available to both Medicines Control and the Pharmacy Council.
[114] In a letter to the PCC dated 29 March 2019 Ms Shousha acknowledged her shortcomings and explained the steps she had taken in response to the audits.
[115] I consider the steps taken and proposed by Ms Shousha, in particular her willingness to engage in a competence review, do not indicate a person who is not amenable to rehabilitation.
[116] Given Ms Shousha’s offer to undergo a competence review, it was not entirely fair for the Tribunal to distinguish Mr Osborne’s case because he had undergone a competence programme.111 In both cases there was evidence of an initial lack of insight and some concerns remained. However, in Mr Osborne’s case the Council had the benefit of reports detailing his rehabilitative progress. This possibility was not pursued in Ms Shousha’s case although she made the offer.
[117] While Mr Waalkens accepts that cultural differences and language issues do not absolve a practitioner from maintaining reasonable standards of competence and behaviour,112 he submits that the Tribunal’s assessment of Ms Shousha’s insight and remorse should have recognised these factors. He refers to Ms Shousha’s letter of apology, which was written by Ms Shousha without the assistance of counsel. The letter states:
111 At [106].
112 See Ben-Dom v Professional Conduct Committee [2020] NZHC 3094 at [135].
I am humbly writing this letter to accept my mistakes and to express my deepest sincerely [sic] apologies for the misconduct I was involve in, in 2018.
…
Under the pressure of customer complain about their fridge medication and I have stubid [sic] soft heart, I slip the rules to help patient which was a huge mistake. I should think about the Regulation first.
I am aware of the SOP [standard operating procedures] and rules and the work ethics that I should follow, but it slip iam [sic] sorry.
[118] Taken together with the matters I have referred to above in relation to rehabilitation, I consider the Tribunal was unduly harsh in determining that “it was not clear to us from her expression of remorse that she understands exactly why her actions are so grave as to warrant cancellation”.113 The fact that English is not Ms Shousha’s first language should not detract from the extent to which her letter of apology expresses insight and remorse.
[119] In this context the Tribunal referred to an item from a local newspaper, dated 27 July 2018, regarding the shut-down of the pharmacy by Medsafe, in which Ms Shousha said that much of the situation seemed to have been caused by “poor communication” over a fridge, and her daughter said they felt unfairly treated and hoped the situation could be resolved quickly.
[120] I do not consider this article warrants the weight the Tribunal attributed to it. The comments Ms Shousha and her daughter made to the local newspaper are understandable. They were addressing their local community and seeking to reassure their regular customers. In my view, these comments are not an accurate reflection of Ms Shousha’s response to legal authorities.
Punishment as a factor
[121] Mr Waalkens submits that the Tribunal erred in that it omitted to direct itself that punishment was no longer considered an appropriate consideration in disciplinary proceedings. Mr Waalkens refers to [85] of the Tribunal decision where the Tribunal listed the Roberts factors as set out in the High Court decision in Katamat.114 In that
113 At [97].
114 Katamat (High Court), above n 46, at [49].
list of factors Williams J referred to one of the factors as being a penalty which “punishes the practitioner”.
[122] However, closely following the Tribunal’s reference to a penalty which “punishes the practitioner” the Tribunal listed principles relating to cancellation from High Court decisions cited by counsel for the PCC. In that list the Tribunal included the following:115
Cancellation is more punitive than suspension (albeit the purpose of neither is to punish).
[123] Mr Waalkens acknowledges that the Tribunal did not specifically refer to the penalty ordered as being for the purpose of punishment but he says it appears the Tribunal has taken this approach. In support of that submission Mr Waalkens refers to the following paragraph at the commencement of the Tribunal’s discussion on penalty:
[97] Ms Shousha’s acceptance of liability is not a complete answer to the submission that she lacks insight. It may show a degree of understanding of her legal position, but it was not clear to us from her expression of remorse that she understands why exactly her actions are so grave as to warrant cancellation.
[124] Mr Waalkens submits that the above paragraph reads as if the Tribunal determined that Ms Shousha needed to be taught a lesson and therefore the most serious penalty was justified.
[125] I do not accept that submission. Neither that paragraph nor other parts of the decision indicate that the Tribunal considered the penalty should be one that punished Ms Shousha.
Ancillary implications
[126] Section 95 of the HPCAA states that hearings are to be in public unless the Tribunal orders otherwise. Ms Shousha applied for and was granted interim name suppression up to the determination of the charge, but did not seek a permanent order.
115 At [87].
The suspension of Ms Shousha’s pharmacy licence was already a matter of public record and Ms Shousha had chosen to comment on the suspension in the media.
[127] Mr Waalkens submits that the Tribunal did not give sufficient recognition to the fact that Ms Shousha did not pursue name suppression. He says that a key ancillary aspect of disciplinary proceedings against a practitioner is name publication. He says this forms part of the overall suffering or harm that the practitioner sustains and is a proper factor to consider as a sign that the practitioner is willing to acknowledge their misconduct. He refers to Professional Conduct Committee v Lal, in which the Tribunal found that the practitioner’s decision not to seek permanent name suppression was indicative of her willingness to own up to her conduct and was discussed as a mitigating factor when assessing penalty.116
[128] Mr Coates submits that it would have been wrong, in law, for the Tribunal to take this factor into account when considering penalty. He says that a health practitioner ought not to receive a ‘discount’ on penalty for allowing the ordinary principles of openness, transparency and accountability in disciplinary proceedings to apply. Ms Shousha did not have a right to confidentiality which she chose to waive as a form of penance.
[129] In Kardaman the Tribunal recognised that there would be “reputational consequences for the practitioners, having regard to the adverse findings which had been made against them in respect of their professional responsibilities” and held that these consequences would serve in part as a deterrent.117 In my view, Lal is readily distinguished. In that case the nurse practitioner was convicted on criminal charges in the District Court after using patients’ debit cards to obtain over $1500. The Tribunal’s focus in assessing penalty was on the practitioner’s openness, remorse and rehabilitation: she had voluntarily disclosed her offending to her current and previous health sector employers, apologised to her victims, and made reparations. The theft was held to be an unsophisticated and desperate attempt to remedy her personal financial hardship. In my view, the issue of publication is not central to the Tribunal’s assessment in this context.
116 Professional Conduct Committee v Lal 1129/NUR20/478P at [50](a).
117 Kardaman, above n 102, at [145].
[130] I accept the submissions made by Mr Coates. Adopting the reasons he advances, I consider that the publication of Ms Shousha’s name following disciplinary proceedings is a neutral factor.
Conclusion on penalty
[131] Mr Waalkens submits that the Tribunal’s decision to cancel Ms Shousha’s registration was “excessive, unreasonable, and disproportionate”. He submits that the appropriate penalty is censure and the imposition of conditions. In the alternative, if the Court imposes a period of suspension, Mr Waalkens says this should take into account the lengthy period for which Ms Shousha has already been out of practice.
[132] In response, Mr Coates makes a strong submission that cancellation was the appropriate penalty. He submits that Ms Shousha’s admitted misconduct goes to the heart of her professional obligations as a registered pharmacist and a significant penalty is warranted to maintain professional standards and send a clear signal to the profession. He says this decision is consistent with other cases, and the penalty is justified because the misconduct involved:
(a)Serious, wide-ranging and prolonged misconduct by a senior practitioner: Ms Shousha failed to demonstrate a satisfactory understanding of professional legal obligations, including in relation to the handling, storage, labelling and dispensing of medicines and the administration of vaccinations.
(b)Risks to public safety: Ms Shousha administered vaccinations when not authorised to do so, and dispensed medicines while not complying with refrigeration requirements.
(c)Dishonesty. Ms Shousha dispensed medicines in direct and intentional breach of the Medicines Control condition, falsified dispensing records on multiple occasions, and made a false declaration to the Pharmacy Council.
[133] Mr Coates notes that Ms Shousha will be able to apply to re-register under s 102(1)(a) of the HPCAA, and that no minimum period before she may apply has been imposed. The oversight of the Pharmacy Council provides an additional layer of protection for the public. In conclusion, Mr Coates submits that the Tribunal made the correct decision, and that a high level of deference to the Tribunal is appropriate, given the specialist, professional and technical expertise of the Tribunal members.
Analysis (on penalty)
[134]In determining the appropriate penalty, I take account of the following:
(a)Ms Shousha was both negligent and dishonest. She altered records and made a false declaration in applying for a practising certificate. Those factors support cancellation of her registration.
(b)In her favour, as the Tribunal noted,118 Ms Shousha co-operated with the PCC and the Tribunal process.
(c)I have found that the Tribunal erred when it found that Ms Shousha was not currently amenable to rehabilitation or that she failed to demonstrate remorse or insight.
(d)Consistency with penalties in other cases would indicate suspension rather than cancellation.
(e)Ms Shousha is willing to accept the imposition of conditions in lieu of cancellation. She has already indicated willingness to upskill in accordance with any Pharmacy Council requirements, attend a course on pharmacy law and ethics, and practise under the supervision of a Council-approved pharmacist.
[135] Suspension (rather than cancellation) is appropriate where there is a prospect of rehabilitation and the practitioner’s fitness to practice may be remedied. A period
118 At [96].
of suspension will enable a practitioner to reflect on their conduct and/or seek professional assistance to remedy the situation.
[136] As I have found that Ms Shousha demonstrated a degree of insight, remorse and a willingness to change, I do not accept Mr Coates’ submission that her lack of insight and understanding are a barrier to rehabilitation. In my view, she has indicated steps she is willing to take in order to practise again. Those steps are reflected in conditions she has suggested.
[137] For the above reasons, I consider that the Tribunal was unduly harsh when it cancelled Ms Shousha’s registration.
Whether a period of suspension is now required
[138] The Court needs to consider the appropriate penalty so as to provide protection for the public and to deter similar misconduct within the profession.
[139] By the time of the Tribunal hearing which commenced on 18 May 2021,119 Ms Shousha had effectively been suspended for a period of two years and seven months (she was suspended on an interim basis by the PCC in October 2018). She has been unable to run her business or practice for almost four years now. This is a significant period of time. Before the PCC Mr Coates had responsibly acknowledged that the length of time Ms Shousha had been out of practice pursuant to an interim suspension under HPCAA, s 69 is a relevant consideration.
[140] Mr Waalkens submits that, in these circumstances, an order suspending Ms Shousha’s registration is not required. He says that Ms Shousha has already been effectively suspended for longer than the maximum period of three years permitted by the HPCAA.
[141] The comparator cases (discussed above at [88]–[109]) do not provide much guidance in circumstances where the practitioner has been suspended for a lengthy period prior to the Tribunal’s decision. In Taylor, I note the penalty imposed was
119 The Tribunal decision records a hearing date of 24 May 2021 but the Court was advised by counsel that the hearing commenced on 18 May 2021.
censure, suspension for two years, and conditions: with the suspension to take effect from the date of the hearing which was on 6 November 2017. Investigations had begun in mid-2015, but it is not clear from the decision if there had been an interim period of suspension.
[142] In Price, a rehabilitative approach was taken and two years’ suspension with conditions was imposed. The two year suspension was from the date of the decision on 15 March 2010. It is apparent from the decision that Mr Price had not practised since July 2008, when he voluntarily agreed to cease practising.
[143] In this case, given the seriousness of Ms Shousha’s conduct, imposing the penalty of censure alone would be insufficient even in circumstances where there has already been a lengthy period of interim suspension. Without the extended pre-hearing interim suspension, in my view suspension of two years from the date of the Tribunal’s decision would have been warranted. But I take into account the period for which Ms Shousha was unable to practise prior to the hearing before the Tribunal. I consider the appropriate period of suspension from the date of the Tribunal’s decision on 14 October 2021 is nine months.120 This is the least restrictive penalty that can reasonably be imposed in all the circumstances. Coupled with conditions I will impose I consider this will provide the appropriate protection for the public. It also achieves the secondary purpose of setting standards for the profession.
Costs
[144] In the notice of appeal and written submissions, Mr Waalkens challenged both the assessment of reasonable costs of the Tribunal and the PCC and the level of Ms Shousha’s contribution to those costs. However, at the hearing Mr Waalkens abandoned the challenge to the level of reasonable costs. The only costs issue is the level of Ms Shousha’s contribution.
120 That gives Ms Shousha a 50 per cent credit for the period of interim suspension up to the date of the Tribunal hearing.
[145] The starting point for a costs order is 50 per cent of the PCC and Tribunal’s reasonable costs. As referred to in [73] above, the principles governing the increase or decrease of this percentage are well-established:121
(a)Professional groups ought not to be expected to fund all the costs of the disciplinary regime – members of the profession who face discipline must be expected to make a proper contribution towards the costs of the inquiry and hearing;
(b)Costs are not in the nature of a penalty or for the purpose of punishment;
(c)The practitioner’s means, if known, are to be taken into account;
(d)A practitioner has a right to defend himself or herself; and
(e)The level of costs should not deter other practitioners from defending a charge.
[146] In Ms Shousha’s case, the PCC sought a contribution of 40 per cent. The Tribunal set the level of contribution at 35 per cent, or $37,363, on the basis of Ms Shousha’s co-operation with the disciplinary proceedings and a finding that she had the means to pay costs.122
[147] With reference to Ms Shousha’s affidavit evidence to the effect that she did not have the means to pay, Mr Waalkens’ submits that the Tribunal failed to properly consider the relevant principles at [147] (b), (c) and (e) above. He says that Ms Shousha should be required to pay no more than 30 per cent of the amount assessed by the Tribunal as reasonable costs, or $32,025.60.
[148] In her affidavit, dated 18 May 2021, Ms Shousha provided detailed evidence of her financial position. This information was clearly set out before the Tribunal in oral submissions on her behalf. Ms Shousha owns her home, which has been valued
121 See, for instance, Gurusinghe v Medical Council [1989] 1NZLR 139 at [195] and Vatsyayann v Professional Conduct Committee [2012] NZHC 1138 at [34].
122 Tribunal decision, above n 1, at [113] – [114].
at $1.3 million, subject to mortgages totalling just over $800,000. Her regular outgoings on the property are mortgage repayments of $680 per week, annual rates of approximately $3,500, and house insurance payments. All these costs – as well as household bills for telephone, internet and electricity – are currently being met by Ms Shousha’s daughters. Part of the home is sometimes rented out for short stay accommodation; however, income from this unit has been minimal since 2020 due to COVID-19. Ms Shousha also has a boarder who pays $180 per week for a room in the main home.
[149] Ms Shousha is the sole director and shareholder of Nohancy Ltd. This company was previously used to operate the pharmacy. However, since the pharmacy was sold it has provided no income and is essentially a shell. Car lease payments of
$983.32 monthly, attached to Nohancy Ltd, are paid by one of her daughters. Ms Shousha also has a 49 per cent shareholding in her daughter’s company Nile GP Ltd, which is used to operate her daughter’s pharmacy. Ms Shousha has no income from this shareholding. GST return evidence dated July 2020 indicates that this company was trading at a loss. It is also subject to a business loan of $312,000. At the relevant time Ms Shousha had approximately $1,800 in a personal bank account, a bank overdraft of $1,800 and was $580 in debt to Work and Income New Zealand (WINZ).
[150] For the PCC, Mr Coates submits that Ms Shousha has the means to pay costs. With reference to her affidavit evidence, he says that she has at least $500,000 equity in her home, is able to generate income from a boarder and the short-term accommodation unit, and receives substantial financial support from her daughters. He says further that her evidence that there was no money left after the sale of the pharmacy was not supported by financial records, and that she acted as guarantor for the business loan on her daughter’s pharmacy around April 2020.
[151] In light of Ms Shousha’s affidavit evidence and accompanying financial reports I find that she does not have the immediate means to pay costs at the level imposed by the Tribunal, and the imposition of costs on a 35 per cent basis will cause hardship to her and her family. The fact that WINZ permitted Ms Shousha to pay off a relatively small debt on an incremental basis is a strong indicator of limited means. I do not
consider there is a basis to allege that Ms Shousha has undisclosed cash assets as a result of the sale of the pharmacy. Her only asset appears to be the equity in her home. She will need to borrow against this equity to pay costs. This will not be easy when she has such limited income. The fact that her daughters have been essentially supporting her financially for the last four years only goes to show that she is of very limited means. The assessment of whether a practitioner has the means to pay should not extend to the means available to their family members.
[152] I also consider that 35 per cent is inconsistent with other Tribunal decisions on costs. In Kardaman, the Tribunal set the level of contribution at 30 per cent, despite the fact there was no evidence of financial hardship and the practitioner was found to be well-resourced.123 In Amarsee, the contribution level was set at 25 per cent in circumstances in which the practitioner gave oral evidence that he did not have any money but failed to provide financial reports or documentary evidence of his financial position and the Tribunal found that he did in fact have the means to pay.124
[153] Consistency with the Tribunal’s decisions on costs in the comparator cases indicates that a 30 per cent contribution as sought by Ms Shousha is appropriate. This results in a contribution of $32,025.60.
Result
[154] The appeal is allowed both in relation to penalty and costs. The Tribunal’s decision cancelling Ms Shousha’s registration is quashed. It follows that the conditions imposed by the Tribunal in relation to any application by Ms Shousha for re-registration are quashed. The Tribunal’s decision that Ms Shousha must make a 35 per cent contribution to the costs of the Tribunal and the PCC is also quashed.
[155] Ms Shousha’s registration is suspended for a period of nine months, from the date of the Tribunal’s decision on 14 October 2021. This period expires on 14 July 2022.
[156]I impose the following conditions:
123 Kardaman, above n 102, at [153].
124 Amarsee, above n 77, at [159].
(a)Given that Ms Shousha has had a lengthy time out of practice since her suspension in October 2018 Ms Shousha is to meet any requirements that the Pharmacy Council considers necessary to ensure that she is able to practise at the required level (in addition to the further conditions below);
(b)Ms Shousha, at her cost, is to attend a training course on legal and professional ethical obligations approved by the Pharmacy Council within one year after returning to practice;
(c)Ms Shousha may only work as an employee pharmacist for a period of one year after returning to practice;
(d)During the period of one year after returning to practice Ms Shousha may not work as a sole charge or charge pharmacist; and
(e)To the extent required by the Pharmacy Council for a period of one year after returning to practice Ms Shousha is to be supervised by a pharmacist approved by the Pharmacy Council. The supervisor is to provide a three monthly report to the Pharmacy Council.
[157] Ms Shousha is to make a 30 per cent contribution to the reasonable costs of the Tribunal and the PCC as assessed by the Tribunal. Her 30 per cent contribution is
$32,025.60.
Costs
[158] I did not hear from the parties on costs. Costs are therefore reserved. As the successful party Ms Shousha is prima facie entitled to costs. If the parties can agree costs a joint memorandum should be filed within 20 working days of the date of this decision. If costs cannot be agreed, Ms Shousha is to file and serve her memorandum within five working days of the date for the joint memorandum. The PCC is to file and serve its reply within five working days of the date of service of Ms Shousha’s memorandum.
[159] Costs memoranda should not exceed five pages. I will determine costs on the papers.
Gordon J
SCHEDULE
1. On 32 occasione, between an o around 13 March 20 ï B and 15 May
20 8, end ching tfie impna*tlon of a oondiîion, on 19 January 2018, b'y tha Minetfy of Health on the Pharmacy’s Liœnqe to Operate îhnt
ôeMeen 2-8 degrees Celaius Offre Mîniap '« c»naition›, us ehousha:
(a) dispensed, and/or e#owe0 ie be dll naea frs tka Pharmacy, medicines tba\ is 5Tiouehe and the Pharmacy wane g+earned
(b)amende0 enO’or fe#ified, anô"a a1low+a o failed Q pfeyent the
racorda ao as ta Imply that the dispensing had occurred on e Oetn
z. on time •m s, between on or around 14 March 204 B end 30 Apdl
z0 T 8, Ma Ghousha andfor the Pharmacy disperi8gd endfa made cIaIMa frs mediones requiring &orege between 2-B dagraea Calstus, oonzrary to the Ministry’e conditions end/or
3.
Z018, Me Shgusha er¥Jfor the Pharmacy ordered and"or supplied medicine rncjurlng etrsaga between 2•8 degrees Celéus, wtrery to Cha Mlnlalry’s comJitia. and/or
4. In o good FeBruafy 2017 to July 20 T B, Ms Shousha feiIed \o hpve en adecjuato syst to accuraaly mor#tw and record the retraction Iem(mra\ufes at the Pharmacy. Tn parfic¥a
\a) In a a ord FeDuwy 2017. March 20\7, Aprs gg T /, May 20a 7, June 20 T 7, September 20 4 /, Mgr 2D17, Novambar Z017 and January Z018, the refrTgera\ tempefatrce recoz0s wera not
tb) The refr/gerotfon tanperature renorde fer July 2017 and August 2017 wera nc't [ pofgr¥eously -eiated end/or did not iden\ffy who had aompleted various lemperalums reoerdedi
The nefrigeratia \emperatura racands for September 2é17 were campletad in e w thet created oonfwlon as \g w+-iether they wera r9oQds ¥eIatir@ la Egpfember 2012 or SepWnbw 2017i snail
The ¥efdganatign temperature reca+ds Ïar Hovember 2017 were segaraBly localaa in e retail drawer; anO'œ
(eJ Ma •houeha es mable æd/or declinad Ïg previde fefr@erafion îemgaraîuæ reqorde for Deœrnber 20 ï 7; ana/w
is 4hotsha falled to ensuna that s\aR o\ the Pharmacy were adagaTely tremed in maimairdng an0/•r recording reffigeraTion tarnpar&orqai end/or
In re gzopnd JarnJary 2018. Me t2hauahe feäed lo qomgJeîe an a iate aqoJrecy îesî or a valldatJön fr a new refñgeraî -In
validation. and/or
5. In a load Jenuery 20# 6 Ms Shou8fia failed fa ensure they to Pharmacy’s dlsgensnry wag main@ined in an acCaptabJe manner arxJ/or in a mannef that mèîm@d rish of tiarrn to the aewhæ provîders and/or qonsumers. in partJcular
(a) The dlsgansery wae poorly mairrtairmd andfor the dispensing benchae were co-red fi Oisgeneed rnedñlnss and paper with lithe space for dispenaifiei md/or
fr dispi=f mg Was aveiBble for dispensing: an&br
(c) E@teö et was feun0 evaiîable for dlepanalng; ana/ra-
(e) RepeWgecl madames were føund Frith insufflWnt labelling or
(g' MedlÔnes requiring apply by an acoedñed phermeqiøt were not
recorded ør îgDeIIed in accordance with regulgłęry and profeseioțæl rë••juIremente; and/or
In or aruu‹id July 2010. Me Qnoi ha failed la appropnaîely e4ora meditines requias rarñgeratton. In that medîcim were Iocëtad In an unclean +efrigerator thal was not being mgnJłgæğ ft tampæatrse anO’or
7. On five occgsiøn>, betwm or around Ju+ie Z '4 7 and Equal 20a 7 Ms
Shousha p‹oyided yaCûİ¥Ïątion se‹viœs when she wag not authorised îo
do so; and/or
B. rapture tn n bsaith statua tø the Phe »acy council
g. In or around 201g p dfo 201a us ebousha did not advisa Ihe Pharmacy comól of her physlœl anöi’o mental Health nondlîians that affœted. a mey affect, ner pïattiœ asæ pharmøciaî; a d/or
9. In or erend Ñ1aO Z017, when she ocm a har appllcazion for B pøngwal of ajar Annual Prøcfising GertiÏicale. SIB 3toushg O0rnple e'd e
rnlaîoading because øfie kr+œu, a ought to have known, that ^8a was suøenng from e heaIih Co«dkion Or condilione th•t äfłaci•d o‹ may affect her predkæ as a pfiarmacisT.
5
1
14
1