The key issue
The bases on which an applicant may rely on appealing findings of the Tribunal.
The background
Mr Hegde (the applicant), a pharmacist, admitted that he had behaved in a way that constitutes professional misconduct in relation to his dispensing of anabolic androgenic steroids from 1 January 2008 to 30 April 2009. The applicant accepted, in summary, that the steroids were dispensed in quantities and combinations which he ought to have known were not for a therapeutic purpose; were dispensed in combinations which were likely to constitute an unacceptable risk to health; and had the potential for misuse and to be on-sold.
There were 4,737 relevant dispensing episodes relating to 828 patients during the relevant period.
The parties filed an Agreed Statement of Facts and the matter proceeded to a penalty hearing on 20 September 2019.
On 7 August 2020, the Tribunal made orders under section 196(2) of the National Law.
The applicant appealed on three main grounds:
- the Tribunal erred in fact and law in finding that the appellant is not a competent pharmacist and/or is permanently or indefinitely unfit for the practice of pharmacy (Ground 1);
- the Tribunal erred in law in exercising its discretion to cancel the applicant’s registration and disqualifying him for three years (Ground 2); and
- the Tribunal erred in law in finding that the appellant was not a forthcoming nor a candid witness (Ground 3).
The Court noted that the appeal was an appeal by way of rehearing rather than a de novo review of the evidence.
Ground 1 and Ground 2 were allowed, while Ground 3 was dismissed.
In relation to Ground 1, the Court found, in summary, that:
- there were conclusions reached by the Tribunal in relation to the applicant’s competence that were unsupported by the evidence as a whole. The Tribunal relied on the applicant’s answers in re-examination, which was inconsistent with the applicant’s responses in cross-examination, which was not properly addressed by the Tribunal in making its finding that the applicant was not a competent pharmacist in terms of his dispensing. The Tribunal’s failure to address the evidence given by the applicant in cross-examination was a material error;
- the Tribunal erred by finding that the Consumer Medical Information pamphlets prepared by the applicant for all anabolic steroids dispensed (CMIs) at the time of the conduct was relevant to assessing the applicant’s conduct at the time of the misconduct rather than at the time of the hearing. Further, the Court found that the CMI as a whole did not bear out fundamental deficiencies in any event. There was no proper basis to conclude that the CMIs were ‘fundamentally deficient, even hazardous’ and this was never put to the applicant in cross-examination. The Court also noted that it was open to the Board to obtain expert evidence in relation to the adequacy of the CMIs; and
- the Tribunal’s conclusion from the applicant’s cross-examination that he was not aware of the risks of diversion was not sufficient to sustain a finding of incompetence.
In relation to Ground 2, the Court found, in summary, that, as it had concluded that the Tribunal erred in its conclusion that the applicant was permanently or indefinitely unfit to practice, the exercise of the discretion as to penalty must be re-exercised in any event.
In relation to Ground 3, the Court found, in summary, that the Tribunal’s finding that the applicant was not forthcoming nor candid was admirably set out in the reasons, including noting ‘a striking failure to accept responsibility for his conduct’.
The Court considered whether it should re-exercise the discretion under section 196 of the National Law or whether the matter should be sent back to the Tribunal for determination according to law. While noting the power conferred by s.105(9) of the State Administrative Tribunal Act 2004 (WA), the Court decided that it was more appropriate to send the matter back to the Tribunal.
The outcome
The Tribunal allowed the appeal and set aside the orders made under section 196(2) of the National Law to cancel the applicant’s registration, disqualify him from applying for registration for three years and reprimanding him. The Court sent the matter back to a differently constituted Tribunal to be reheard.
The implications
While the matter largely turns on its own facts, the case reinforces the position that the Tribunal’s role is to assess a practitioner’s competency at the time of the hearing, rather than at the time of the conduct.
The Court also reinforced the need for the Tribunal to undertake a thorough examination of all of the evidence in making an appropriate finding.
Expert evidence ought to be obtained where a board is seeking to allege adequacy of materials to be provided to patients.
The decision Hedge v Pharmacy Board of Australia [No 2] [2020] WASC 384 can be read here.
