We were recently successful in having the indefinite suspension of a pharmacist set aside in the NSW Court of Appeal after several legal setbacks.
Throughout the various court proceedings, the Pharmacy Council was adamant that this pharmacist had to remain suspended and refused to acknowledge the failures of due process that occurred in a section 150 proceeding under the National Health Law (s150 hearing) (until changing their view before the final hearing in the NSW Court of Appeal). In our experience, this is a common problem with these s150 hearings.
The conduct of the Pharmacy Council in these s150 hearings can often give a pharmacist a right to appeal the decision of the Pharmacy Council. Unfortunately, pharmacists are often discouraged from exercising this right of appeal (by their lawyers) or unaware they can appeal.
The history of this matter was as follows:
- the pharmacist was suspended indefinitely by the NSW Pharmacy Council in a s150 hearing. We did not act in that hearing;
- we did act in the appeal to NCAT which was unsuccessful. However, we advised our client that we did not think this decision was correct and it should be appealed;
- in the appeal to the NSW Supreme Court, the judge agreed with all but one of the points we raised regarding the failure of the process in the s150 hearing and that the NSW Pharmacy Council had misapplied the correct legal tests in coming to its decision. However, the judge then incorrectly concluded (in our opinion) that the suspension would have occurred anyway. This meant the suspension remained;
- while this was disappointing, we advised our client that we considered we had very good prospects in an appeal to the NSW Court of Appeal on this point;
- after filing that further appeal (and after some interlocutory matters were dealt with) and it was to be set down for hearing, the NSW Pharmacy Council then agreed to allow the appeal, remove the suspension and pay the legal costs of the various proceedings; and
- this occurred because the NSW Pharmacy Council itself concluded that the decision of the judge could not be maintained given the record of the actual decision of the NSW Pharmacy Council.
Far too often pharmacists come to us after using other lawyers in a s150 hearing, and the outcome was disappointing (or worse) for that pharmacist. Sadly, they are often out of time to appeal and had been advised by their previous lawyers that the appeal had no prospects.
Our experience, as shown in this matter and many others, is that often there are good grounds for appeal, particularly in relation to how the initial hearing was conducted. However, you need to act quickly to file any such appeal.
If you need assistance or need advice in relation to a potential appeal, or in acting for you in any disciplinary proceedings, please urgently contact Andrew Lambros or Alex Rouyanian at Bennett & Philp for legal advice.
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