Health Care Complaints Commission v Murray (No 2) [2019] NSWCATOD 111

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Murray (No 2) [2019] NSWCATOD 111 Hearing dates: 1 May 2019 Date of orders: 15 July 2019 Decision date: 15 July 2019 Jurisdiction: Occupational Division Before: A Britton, Principal Member E Anderson, Professional Member D Preswick, Professional Member A Gray, General Member Decision: 1. Ms Murray must pay 70% of the Health Care Complaints Commission's costs, as agreed or assessed. 2. Within 14 days of the date of this decision, the Commission must file and serve any submissions on the form of the proposed conditions set out at [51] in these reasons for decision (the proposed conditions). 3. Within 14 days of receipt of the Commission's submissions Ms Murray must file and serve her submissions on the proposed conditions. 4. In their respective submissions, each party is invited to comment on whether the formulation of conditions can adequately be dealt by way of written submissions without holding a hearing, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: PROFESSIONS AND TRADES — health practitioner — appropriate form of disciplinary orders where practitioner found guilty of professional misconduct Legislation Cited: Medical Practice Act 1992 (NSW) Medicines and Poisons Act 2014 (WA) Medicines and Poisons Regulations (WA) Pharmacy Act 2010 (WA) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Health Care Complaints Commission v Athour [2014] NSWCATOD 28 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Murray [2018] NSWCATOD 119 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 NSW Bar Association v Meakes [2006] NSWCA 340 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Consequential orders (other than Costs) Parties: Health Care Complaints Commission (Applicant) Lauren Murray (Respondent) Representation: Counsel: L Fernandez (Applicant) L Murray (Respondent in person)

Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 2016/378824 Publication restriction: Nil

REASONS FOR DECISION 1. For 10 weeks in 2014, Lauren Murray worked as a locum pharmacist at Broken Hill Hospital (BHH). In July 2018, following a hearing conducted into a complaint referred to the NSW Civil and Administrative Tribunal by the Health Care Complaints Commission (the Complaint) about Ms Murray's conduct while at BHH, we found Ms Murray guilty of "unsatisfactory professional conduct" and "professional misconduct" within the meaning of ss 139B(1)(l) and 139E of the Health Practitioner Regulation National Law (NSW) ("National Law"): Health Care Complaints Commission v Murray [2018] NSWCATOD 119. 2. We found proven some of the conduct alleged by the Commission in the Complaint. Specifically, that Ms Murray: 1. misappropriated from BHH two bottles of morphine and 40 tablets of Codapane Forte®, the latter for own use. 2. made a false entry in BHH's records to conceal the misappropriation of Codapane Forte®. 3. made a false statement to the Pharmacy Council of NSW about the reason BHH was unable to account for the missing 40 Codapane Forte® tablets. 1. It remains to be determined whether we should make disciplinary orders, and, if so, the appropriate form of orders. The Commission urges the Tribunal to cancel Ms Murray's registration and to order that she be barred from applying for a review of that order for a period of 12 months. Ms Murray disagrees. She contends that the more appropriate order is a reprimand and the imposition of conditions on her registration. 2. In the original complaint lodged with NCAT, the Commission alleged that Ms Murray was not a "suitable person" to hold registration. In October 2018, the Commission withdrew that complaint. 3. For the reasons that follow, we have decided to impose conditions on Ms Murray's registration, including a condition opposed by Ms Murray that she not act as pharmacist-in-charge. In NSW, a pharmacy business carried on in "approved premises" must be in the charge of a pharmacist who must personally supervise the carrying on of the business: cl 11, Sch 5F to the National Law.

Statutory framework and principles that govern the making of protective orders 1. Where a complaint made under the National Law is proven or admitted, the Tribunal may exercise any of the powers in Sub-div 6 of Pt 8 of the National Law. They include the powers to caution, reprimand, impose conditions on a practitioner's registration, order a practitioner to undergo medical or psychiatric treatment or counselling or to complete an educational course. Where, as in this case, the Tribunal finds the practitioner guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration: s 149C(1) of the National Law. 2. The National Law directs that in exercising the power to make an order under Sub-div 6 of Pt 8, the paramount consideration is the protection of the health and safety of the public: s 3A. While the health and safety of the public is the paramount consideration, the jurisdiction exercised by the Tribunal is nonetheless protective not punitive. Any order designed to protect the public from a repetition of the conduct that is the subject of a complaint found proven requires an evaluation of the seriousness of that conduct and the nature and extent of any justifiably apprehended harm that might be caused if it were to be repeated. No order should be made which has more serious consequences for the practitioner than is reasonably necessary for the execution of the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. 3. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA stated at [20] that in making protective orders the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.

Ms Murray's employment history after leaving BHH 1. On 1 October 2014, Ms Murray was stood down from her position as pharmacist at BHH following an allegation that she had misappropriated drugs. She resigned on 22 October 2014 and left Broken Hill at around that time to live with her parents in Melbourne. 2. Ms Murray worked as a locum pharmacist in Victoria from December 2014 until travelling to the United Kingdom in May 2015. On arrival in the UK, Ms Murray commenced work as a locum pharmacy technician. Between July 2015 and January 2016, she worked on a full-time basis as a pharmacy technician at Poole Hospital, Dorset. In January 2016, Ms Murray left Poole Hospital to travel throughout Europe. 3. On returning to Australia in May 2016, Ms Murray commenced work with Senior Care, an agency which provides care and support to elderly people in their homes. In November 2016, Ms Murray commenced an eight-week engagement with the Bunbury Drive In Chemist, Bunbury, Western Australia working full time as pharmacist-in-charge. She continued in that role on a part time basis until August 2018. In addition, from February 2017 to date, Ms Murray has worked as a locum pharmacist at several other pharmacies in the Bunbury/Perth region. Ms Murray claims that since February 2017, her hours of work have varied but that she routinely works up to 60 to 70 hours per week. 4. Ms Murray and her partner relocated to Western Australia in 2017. They plan to have a child and remain living in Western Australia.

Psychiatric assessment and treatment 1. Psychiatrist, Dr Peter Smith, assessed Ms Murray at the request of the Commission in May 2016 and at the request of Ms Murray in January 2019. In the first assessment, Dr Smith made a diagnosis of "Mixed Anxiety/Depressive Disorder" and concluded that at that time Ms Murray was not psychologically fit to undertake the duties, tasks and responsibilities of a pharmacist. However, noting Ms Murray's "firm resolve and commitment to optimise her psychological health and functioning", in his opinion the prognosis was favourable. 2. On re-assessing Ms Murray in January 2019, Dr Smith concluded that Ms Murray's Mixed Anxiety/Depressive Disorder was in remission and that there is no evidence to suggest that in the foreseeable future, Ms Murray would suffer a clinical relapse. In addition, he wrote that there was no evidence of Ms Murray being "likely to reoffend with regard to professional misconduct", or that she should restrict her tasks or duties, reduce her hours of work or work under supervision. In his first report dated 31 May 2016, Dr Smith wrote: Ms Murray has a primary psychological /psychiatric health issue rather than a behavioural or conduct problem while working as a pharmacist ... Her alleged behaviours were consistent with impaired attention and concentration consistent with her diagnosed condition at the time of the alleged professional misconduct. 1. Ms Murray was assessed by psychiatrist, Dr Kelly Palmer, in May 2017. In a letter addressed to the Commission dated 5 May 2017, Dr Palmer wrote that Ms Murray first experienced some mental health problems in 2013. She wrote that Ms Murray had been bullied, which caused some depression and anxiety, and then in 2013 was the victim of an assault (see Health Care Complaints Commission v Murray at [45]). Dr Palmer wrote that Ms Murray was "understandably deeply traumatised by the assault" which worsened her depression and anxiety. In Dr Palmer's opinion, when she assessed Ms Murray in May 2017, her depression had resolved but she continued to experience chronic anxiety as a result of the Commission's investigation of the Complaint. 2. Ms Murray consulted perinatal psychiatrist, Dr Julia Feutrill, on four occasions for support while receiving IVF treatment. In a report dated 4 February 2019, Dr Feutrill wrote that in her opinion Ms Murray suffered from a single episode of a mental health disorder in 2014 which responded well to treatment and has remained in remission. She wrote that Ms Murray has excellent insight into that disorder and understands how her symptoms "impacted on her capacity to perform her work satisfactorily". She wrote that Ms Murray "admitted to me the errors that were noted in proceedings, but not the substance abuse". Dr Feutrill stated that Ms Murray was "unfortunate to suffer from a single episode of mental health disorder when unfortunate errors were made". 3. Dr Feutrill reported that Ms Murray has been compliant with all treatment recommendations. In Dr Feutrill's view, the likelihood of relapse is low given Ms Murray's level of insight and "proactive approach to her mental health". She notes that Ms Murray has an "excellent and reliable support system in WA", which she lacked when she was working at BHH. 4. While in Western Australia, Ms Murray has been under the care of GP, Dr Mathew Moore. In a letter dated 13 February 2019, which is the form of a medical report and character reference, Dr Moore wrote that since March 2017 he has been seeing Ms Murray monthly for support and medication management. He wrote that Ms Murray has ceased taking medication for her mental health, is no longer using alcohol and "is the best that I've seen her since initiation of care". He wrote that since he commenced treating Ms Murray, several things have happened in life which could have "pulled her off course" but this has not occurred.

Character references 1. In his letter dated 13 February 2019, Dr Moore wrote that he has "no reservations about Lauren. She has good insight into her situation and keeps a good rapport with her colleagues and co-workers". He wrote that while in Bunbury Ms Murray maintained a "busy schedule without any further complaints or restrictions". He wrote that Ms Murray was working 54 hours per week and that her employer is "very satisfied with the quality of her work". He wrote that since arriving in Western Australia Ms Murray has been working as a locum pharmacist at several rural and remote pharmacies and also as a solo pharmacist in Mandurah, which is about 100 kilometres south of Bunbury. 2. In an undated letter, barrister and owner of the Bunbury Drive In Chemist, John Schurmann wrote that Ms Murray was "professional … and able to smoothly cope with a reasonable work load". Mr Schurmann employs four pharmacists and 18 support staff. He wrote that he was aware of the "facts alleged against Ms Murray". In his opinion "the evidence against her is mainly circumstantial and untested". He went on to write that had he been able to represent Ms Murray the complaint would have been "dismissed as unproven". While we accept Mr Schurmann's character evidence on behalf of Ms Murray, his commentary on the Tribunal's factual findings is, in our view, irrelevant, misconceived, gratuitously discourteous and - coming from a barrister - unprofessional both in content and tenor. 3. Former manager of the Bunbury Drive In Chemist, Alison Kerry worked with Mrs Murray for 18 months. In a letter dated 23 January 2019, Ms Kerry wrote that she found Ms Murray to be a productive and dedicated pharmacist and that she never "had any doubt about Ms Murray's professional conduct". In that letter, Ms Kerry made no mention of the Complaint. 4. Pharmacy manager, Lina Pugh, wrote that she had worked with Ms Murray for nine months in Bunbury. In a letter dated 1 July 2017, she wrote that Ms Murray conducts herself "in the most professional manner and is possibly one of the best pharmacists I have worked with". She stated that she did not learn of Ms Murray's "predicament" until three months after they started working together and was "completely shocked". 5. Pharmacist, Seamus Dickens, worked with Ms Murray at Poole Hospital, Dorset in 2015. In a letter dated 9 February 2019, he explained that while working in the Hospital's pharmacy dispensary unit Ms Murray had ready access to "Class A" drugs and other controlled medication. He wrote that one of Ms Murray's duties was to ensure the balance of these drugs was correct and to his knowledge there were no discrepancies in the period Ms Murray worked at Poole Hospital. He wrote that he had worked closely with Ms Murray and at no point did she give him any grounds for concern. He wrote that Ms Murray was a valued member of the team and demonstrated "total professionalism". 6. In addition, Ms Murray tendered several references from friends and former and current work colleagues. Each attest to her good character. Each work referee attested to Ms Murray's integrity, professionalism and skill as a pharmacist and the high regard in which she is held by colleagues, customers and medical practitioners. A number alluded to the Complaint.

Whether protective orders should be made and, if so, what orders should be made? 1. The Commission submits that orders cancelling Ms Murray's registration and barring her from seeking review of that order for a period of 12 months is warranted for the following reasons. 2. First, the Commission asserts that there is a real risk that the offending conduct might be repeated because Ms Murray refuses to admit culpability and lacks insight into the conduct found proven by the Tribunal in these proceedings (the offending conduct). 3. Second, the Commission contends that the nature of the offending conduct was serious: it was calculated and involved a breach of a position of trust. Furthermore, Ms Murray took deliberate steps to conceal her actions in misappropriating medication. 4. Third, the Commission contends that the answers Ms Murray gave when questioned in these proceedings, raise doubts about her willingness to comply with conditions imposed on her registration. 5. Fourth, the Commission contends that Ms Murray is not assisted by the medical evidence that her health has stabilised, because there is no reliable evidence that her health was one of the reasons for the offending conduct. 6. Fifth, the Commission contends that it is troubling that in her role as a pharmacist Ms Murray has and will continue to have access to drugs of addiction, in circumstances where she neither admits to, nor has sought treatment for addiction. 7. Sixth, the Commission submits that a cancellation order is the preferable disciplinary order because it will operate to deter other practitioners from engaging in similar conduct. 8. Ms Murray contends that orders cancelling her registration and barring her from seeking review of that order for a period of 12 months, is unnecessarily punitive. In support Ms Murray points to, first, the evidence of her "impeccable and complaint free" employment record since leaving BHH. Second, the opinion of numerous colleagues who attest to her strong work ethic, trustworthiness and reliability. Third, the medical evidence which supports her self-report that her mental health has stabilised, that she has taken positive steps to improve her mental health and that she no longer uses alcohol. Fourth, the evidence of her changed personal circumstances: she now enjoys a strong support network and plans to have a family with her partner with whom she is in a close and loving relationship. 9. Ms Murray proposed the following conditions: to remain up to date with her continuing professional development obligations; to engage in further educational activities; to work under direct supervision for 12 months; to maintain in regular contact with her treating psychiatrist, Dr Feutrill. In addition, she stated she was prepared to submit to urine drug screening, if considered necessary by the Tribunal. In addition, Ms Murray stated that she is prepared to submit to other conditions the Tribunal considered necessary, including not working more than 40 hours per week. However, she strongly opposed a condition which would prevent her from working as pharmacist-in-charge, asserting that such an order would make her unemployable in Western Australia.

The comity argument 1. Ms Murray asserts that the sanction of a cancellation order together with a 12-month disqualification on seeking review of that order is disproportionate and excessive, citing in support the following decisions made by NCAT, which involved health practitioners found guilty of professional misconduct. 1. Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 (Della Bruna): The Tribunal found that over a 14 month period Dr Bruna had improperly administered and prescribed pethidine (a Schedule 8 drug) and Sustanon 250 amp and Deca-durabolin (both prescribed restricted substances) and kept inadequate medical records for the patients to whom she had prescribed those drugs. The Tribunal reprimanded Dr Bruna and imposed conditions on her registration. 2. Health Care Complaints Commission v Athour [2014] NSWCATOD 28 (Athour): The Tribunal found Dr Athour had treated 14 opioid-dependent patients without having adequate training, knowledge or experience. In addition, the Tribunal found that Dr Arthour failed: to ensure that each patient was provided an appropriate level of care; to undertake and/or record a detailed assessment of the drug and alcohol use history of each patient; to obtain and/or record a detailed medical and psychiatric history of each patient. The Tribunal reprimanded Dr Arhour and imposed a fine of $10,000 and several conditions on his registration. 1. Ms Murray points out that neither Drs Athour nor Bruna were subjected to cancellation orders, despite being found guilty of professional misconduct which extended over a much longer period than the conduct found proven in her case. In addition, Ms Murray asserts that the conduct of Drs Athour and Della Bruna was objectively more serious than the conduct found proven in her case. 2. The Commission contends that a "ready reckoner" approach to the making of disciplinary orders under the National Law is to be approached with "extreme caution", citing in support Lee v Health Care Complaints Commission [2012] NSWCA 80. In Lee Barrett JA (with whom Macfarlan JA and Tobias AJA agreed) considered the question of whether, in making disciplinary orders under the now repealed Medical Practice Act 1992 (NSW), there was any utility in undertaking a survey of previous orders imposed by the then Medical Tribunal: at [22]-[33]. After examining the authorities, Barrett JA summarised the applicable principles at [33]: 1. comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern; 2. such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct"; 3. the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers; 4. the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle; 5. since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and 6. the Medical Tribunal [one of NCAT's predecessor tribunals], as a specialist tribunal, brings special skill and experience to the task of formulating protective orders.

Consideration 1. We accept that the conduct found proven in the complaints determined by the Tribunal in Della Bruna and Athour, extended over a longer period and appear to be objectively more serious than the conduct found proven in the Complaint involving Ms Murray. However, we do not agree with the contention advanced by Ms Murray that these two cases reveal a discernible range or pattern in the type of disciplinary orders made by NCAT. In any event, while the seriousness and period of the conduct the subject of a complaint is relevant, as Barrett JA explained in Lee these are not the only considerations relevant to the exercise of the discretion to make and to formulate disciplinary orders. In Della Bruna, for example, the Tribunal considered the practitioner's remorse and insight together with the rehabilitative steps she had taken reduced the need for suspension or deregistration in order to achieve the appropriate protection of the public: at [100]. 2. This is not the occasion to decide whether a comprehensive review of disciplinary orders made by NCAT and its predecessor tribunals might reveal a discernible range or pattern in the orders made and, if so, whether that range or pattern points to some "unifying principle". However, noting that one of the objects of the NCAT Act is consistency in decision-making (s 3(e)), if discernible a unifying principle might assist in the exercise of the discretion to make disciplinary orders under the National Law.

Our decision on the form of protective orders 1. For the reasons that follow, we have decided not to cancel Ms Murray's registration but instead to issue a reprimand and to impose conditions on her registration. 2. In reaching that decision, we acknowledge that while Ms Murray admits to having made "mistakes" throughout the period she worked at BHH, with one exception (the retrospective entry made in the drug register on 29 September 2014 (Complaint 1, particular 3(b)), Ms Murray denies the offending conduct. Specifically, she denies taking 40 tablets of Codapane Forte® from BHH without permission and for her own use (Complaint 1, particular 3). In addition, while she admits to disposing of two bottles of morphine in a manner which contravened the Poisons and Therapeutic Goods Regulation 2008 (NSW), she does not admit taking morphine from the hospital (Complaint 1, particular 5(a)). While this lack of acknowledgement of culpability is troubling and relevant to the assessment of future risk, for the following reasons we have decided that a reprimand and the imposition of conditions on Ms Murray's registration are sufficiently protective of the health and safety of the public in the circumstances of this case. 3. First, five years have now passed since the offending conduct occurred. Since leaving BHH Ms Murray has worked without conditions on her registration and without complaint for multiple pharmacies in Victoria and Western Australia. During that period, she has worked in small and large pharmacies, in city, regional and remote locations under varying degrees of supervision. In addition, she worked without incident for over six months in the UK. Not only is there an absence of evidence of complaint, there is positive evidence consistent with Ms Murray's self-report of having an unblemished employment record since leaving BHH. While it is unclear what each of her referees knew of the details of the Complaint, each attest to her honesty and scrupulousness. In addition, there is no evidence of any complaint being made about Ms Murray before 2014. (Ms Murray obtained registration as a pharmacist in 2008). This suggests that the offending conduct was not part of a pattern of conduct, suggestive of a fundamental character flaw or behavioural problem. 4. Second, there is the evidence of Ms Murray's stable mental health. The change in her personal circumstances, her abstinence from alcohol, the positive prognosis together with the proactive steps taken by Ms Murray to prevent a reoccurrence, all bode well for a continuation of Ms Murray's mental stability. As detailed in Health Care Complaints Commission v Murray at [45], the period at BHH was an especially difficult time for Ms Murray. It coincided with the first anniversary of a serious assault, the memory of which Ms Murray, unsurprisingly, found deeply disturbing. Throughout that period Ms Murray was socially isolated, drinking heavily and being treated for depression and anxiety. The consensus of medical opinion is that at that time she was suffering from Mixed Anxiety/Depressive Disorder. As the Commission points out, the available evidence falls short of establishing that that condition was causative of the offending conduct. Greater weight might be able to be given to the opinions expressed by Drs Feutrill and Smith that Ms Murray's mental health may have been a contributing factor to the offending conduct had each particularised the factual assumptions on which that respective opinions were based, in particular the details of the offending conduct, it is not implausible that Ms Murray's poor mental health contributed to this seemingly uncharacteristic conduct. 5. Third, Ms Murray's change in personal circumstances in our view is protective against reoffending. She now enjoys the support of a loving partner and a wide network of friends and colleagues. She is focussed on starting a family. Relocating to Western Australia and continuing to work as a pharmacist is integral to achieving that goal. We think it unlikely Ms Murray would take steps which might jeopardise that goal. In addition, it is apparent that Ms Murray has found the experience of being prosecuted by the Commission in a public hearing, humiliating. This is likely to act as an additional factor protective against reoffending. 6. While it is uncontroversial that the functions of protective orders include the public interest considerations of general deterrence and the maintenance of public confidence in the profession (see, for example Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]), we are unable to accept the implicit submission made by the Commission that where professional misconduct is found proven, any order falling short of cancellation will fail to achieve the public interest of signalling to the profession and the public the unacceptability of that conduct. A reprimand and the imposition of conditions on Ms Murray's registration, in the circumstances of this case, is sufficient to signal to the profession and the community the unacceptability of Ms Murray's conduct. 7. We are unable to accept the submission made by the Commission that there is a real risk that Ms Murray will repeat the offending conduct because in her role as a pharmacist Ms Murray has and will continue to have access to drugs of addiction. While there is evidence of Ms Murray misusing alcohol and pain relief medication while at BHH, that evidence falls short of establishing the factual assertion on which the Commission's submissions rests: that Ms Murray had or has some form of addiction. None of the medical practitioners who have recently treated and assessed Ms Murray has raised any concerns about drug or alcohol misuse. In addition, we note that the allegation that Ms Murray took morphine from BHH for her own use was not found proven: Complaint 1, particular 5(b). 8. In addition, we are unable to accept the argument put by the Commission that some of the answers given by Ms Murray in these proceedings to questions about possible conditions, raises doubts about her willingness to comply with conditions imposed on her registration. In cross examination when questioned about several specific conditions, Ms Murray stated that she did not agree with those conditions. Having regard to context, we understand Ms Murray's answer to mean that she was opposed to, not that she unwilling to comply with those conditions.

Proposed orders 1. While we are satisfied that the offending conduct is unlikely to reoccur, nonetheless given the paramountcy of the health and safety of the public we have decided to take a cautious approach and to impose the following conditions on Ms Murray's registration: 1. That Ms Murray not work as a pharmacist-in-charge 2. That Ms Murray be mentored by another registered pharmacist 3. That Ms Murray submit to an audit of her practice 4. That Ms Murray work no more than 40 hours per week 5. That Ms Murray undertake a course in ethics and dispensing. 1. We understand that Ms Murray consents to each of these conditions except not working as a pharmacist-in-charge. Ms Murray claims that this will make her unemployable given the limited employment market for pharmacists in Western Australia. On the available material we are unable to assess that claim. In any event, given the serious nature of the conduct found proven, we consider it prudent that she be subject to a restriction of this type, at least for a 12-month period.

Form of conditions 1. The parties are invited to comment on the form of the proposed conditions set out below. The Commission must file and serve its submissions within 14 days of the date of this decision. Ms Murray must file and serve her submissions within 14 days of receipt of the Commission's submissions. In our view, the issue of the formulation of conditions can adequately be dealt by way of written submissions without holding a hearing, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW). The parties are invited to indicate in their respective submissions whether they share this view. 2. The parties are invited to comment on whether given Ms Murray's principal place of practice is no longer in New South Wales, the Pharmacy Board of Australia is the appropriate review body and the appropriate body to monitor the proposed conditions. 3. Pursuant to s 163(4) of the National Law the following conditions are imposed on Ms Murray's registration for a period of 12 months or such longer period as determined by the Pharmacy Board of Australia (the Board): 1. Not to work in a pharmacy as the pharmacist in charge (see s 57 of the Pharmacy Act 2010 (WA)).

Mentor relationship 1. Ms Murray must nominate a registered experienced pharmacist to act as her professional mentor for approval by the Board. The mentoring relationship is to continue for a minimum period of 12 months from the date of the Board's approval or appointment of the mentor, with the Board to determine if an additional period of mentoring is appropriate. 2. Ms Murray is to meet with the mentor at a frequency and for a period of time to be determined by the Board. 3. At each meeting Ms Murray is to review and discuss her practice with the mentor with a particular focus on compliance with her obligations pursuant to the Medicines and Poisons Act 2014 (WA) and Medicines and Poisons Regulations 2016 (WA). 4. Ms Murray is to authorise the mentor to report to the Board, in approved format approved by the Board every three months (or at such other period as determined by the Board) about the fact of contact, and to inform the Board if there is any concern about her professional conduct, health or personal wellbeing. 5. Ms Murray is to meet all costs associated with the mentoring conditions. 6. Ms Murray must provide the mentor with a copy of the decision made by the New South Wales Civil and Administrative Tribunal: Health Care Complaints Commission v Murray [2018] NSWCATOD 119.

Notification of conditions 1. Within 21 days of the imposition of these conditions, Ms Murray must provide to AHPRA, on the approved form (see https://www.ahpra.gov.au/registration/monitoring-and-compliance/national-restrictions-library.aspx) the contact details or the owner of any pharmacy in which she is engaged and/or any locum agency through which she obtains work as a pharmacist. In providing that form, Ms Murray acknowledges that AHPRA will contact the owner and provide them with a copy of the conditions on her registration or confirm that the owner has received a copy of the conditions from Ms Murray. In addition, Ms Murray must provide the approved form to APHRA: 1. within seven days of the commencement of practice at each and every subsequent place of practice; 2. within seven days of commencing with any new locum agency; and 3. within seven days of any variation to these conditions.

Audit of practice 1. Ms Murray is to submit to an audit of her practice by a person nominated by the Board. 2. The first audit is to be undertaken no later than two months from the date of this decision and thereafter at a frequency determined by the Board. 3. The auditor is to examine and assess the following aspects of Ms Murray's practice: 1. dispensary systems; and 2. the storage, supply, recording and destruction of drugs including drugs of addiction. 1. Ms Murray is to authorise the auditor to provide the Board with a report on their findings. 2. Ms Murray is to meet all costs associated with the audit and any subsequent audits and reports required by the Board. 3. Ms Murray must provide the auditor with a copy of the decision, Health Care Complaints Commission v Murray [2018] NSWCATOD 119.

Ethics 1. Within three months of the date of this decision Ms Murray is to commence the Ethics and Dispensing in Pharmacy Practice course offered by the Pharmaceutical Society of Australia (PSA), or an equivalent course approved by the Board.

Hours of work 1. Unless approved by the Board, Ms Murray must not work as a pharmacist for more than 40 hours per week

Should an order for costs be made? 1. The Commission seeks an order that Ms Murray pay its costs in these proceedings. The Commission properly concedes that because not all the particulars of the Complaint were found proven, it would be open to the Tribunal to order that Ms Murray pay a proportion of its costs. 2. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. 3. The Commission failed to establish each of the particulars of complaint 1 of the Complaint. We found not proven two of the six particulars and one sub-particular of Complaint 1. While difficult to estimate the amount of hearing time spent on these complaints, it was not insignificant. Therefore, we decided that Ms Murray should not be required to pay all the Commission's costs. We order that she pay 70% of the Commission's costs, as agreed or assessed.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 15 July 2019 - typo corrected on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2019