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Pharmacy Board of Australia v Amurao[2025] QCAT 100

Pharmacy Board of Australia v Amurao[2025] QCAT 100

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pharmacy Board of Australia v Amurao [2025] QCAT 100

PARTIES:

PHARMACY BOARD OF AUSTRALIA

(applicant)

v

EDGARDO AMURAO

(respondent)

APPLICATION NO/S:

OCR 264-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

15 April 2025

HEARING DATES:

9 and 10 October 2024

Written submissions filed by the applicant on 13 November 2024; and the respondent on 28 January 2025

14 March 2025

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Murphy SC Assisted by:

Mrs K Thomson

Mr B Swan

Ms J Feeney

ORDERS:

  1. 1.
    Pursuant to s 196(1)(b)(iii) of the National Law, the conduct of Edgardo Amurao as alleged in grounds 1 to 6 of the referral constitutes, when taken together, professional misconduct as defined by subparagraph (c) of the definition of that term in s 5 of the National Law.
  1. 2.
    Pursuant to s 196(2)(a) of the National Law, Edgardo Amurao is reprimanded.
  1. 3.
    Pursuant to s 196(2)(e) of the National Law, Edgardo Amurao’s registration is cancelled.
  1. 4.
    There be no order for costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the respondent practitioner engaged in conduct towards his female colleagues that made them feel uncomfortable – where the respondent practitioner unlawfully dispensed, or caused to be dispensed, medications to himself – where the respondent practitioner gave false or misleading information to the applicant Board regarding the dispensing of medications – where the respondent practitioner’s conduct, when viewed together, constitutes professional misconduct – whether a period of disqualification should be imposed

Health Practitioner Regulation National Law (Queensland)

Medicine and Poisons (Medicines) Regulation 2021 (Qld)

Poisons and Therapeutic Goods Regulation 2008 (NSW)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253

Bonitto v Fuerst Bros & Co Limited [1944] AC 75

Fittock v Legal Profession Conduct Commission (No 2) [2015] SASFC 167

Health Ombudsman v Kumar [2024] QCAT 132

LCK v Health Ombudsman (No 2) [2020] QCAT 460

Looke v Parbury Henty & Co Pty Ltd [1950] VLR 94

McBride v Walton [1994] NSWCA 199

Medical Board of Australia v TXA (No 2) [2023] QCAT 115

Medical Board of Australia v Wong [2015] QCAT 439

New South Wales Bar Association v Cummins [2001] NSWCA 284

Nursing and Midwifery Board v Seijbel-Chocmingkwan [2015] QCAT 283

Re Davis (1947) 47 CLR 409

Re Day [2017] HCA 2; 340 ALR 368

Re Moage Limited [1998] FCA 296; (1998) 153 ALR 711

R v Davison [2022] QCA 22

Trustees of the Property of Cummins v Cummins [2006] HCA 6; 227 CLR 278

Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82

Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

APPEARANCES & REPRESENTATION:

Applicant:

L Marshall instructed by Minter Ellison

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    Edgardo Amurao obtained general registration as a pharmacist in February 2019.  Between April of that year and November 2020, he was employed for varying periods at three pharmacies, one in New South Wales and two in regional Queensland.  The Pharmacy Board of Australia (‘Board’) alleges misconduct occurred at each of the three pharmacies.
  2. [2]
    The alleged misconduct resulted in the Board taking “immediate action”[1] against Mr Amurao on 12 January 2021.  As a consequence of that action, and the (seemingly inherent) delay in the hearing of the referral, Mr Amurao has not worked as a pharmacist for nearly four and a half years.  
  3. [3]
    The Referral to this Tribunal contains six separate grounds.  The alleged misconduct can be seen to fall into two categories.  Grounds 1 to 3 pertain to alleged words and actions directed to five young female employees with whom Mr Amurao worked at the three pharmacies.  Grounds 4 and 5 relate to conduct in the dispensing of medications.  Ground 6 is, in effect, connected to grounds 4 and 5.  It alleges Mr Amurao provided false or misleading information to the investigating authorities. 
  4. [4]
    These reasons will deal with each of those categories in turn, noting that ultimately, the Board seeks “global findings” and, should its allegations of conduct be proved, sanctions being applied to the totality of the proven conduct. 
  5. [5]
    It is first necessary to consider how the case against Mr Amurao is framed against the background of the statutory framework which provides the foundation for the sanctions sought by the Board. 

What conduct is subject to relevant action by the Tribunal?

  1. [6]
    The Tribunal is empowered to take specified actions against Mr Amurao if it decides that he has “behaved in a way” that, relevantly, constitutes “unprofessional conduct” or “professional misconduct”.[2] A finding to either such effect depends upon establishing that proven conduct meets the definitions of those terms contained within the Health Practitioner Regulation National Law (Queensland) (‘National Law’):[3]
  1. "professional misconduct", of a registered health practitioner, includes—
  1. (a)
    unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
  1. (b)
    more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
  1. (c)
    conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
  1. [7]
    A finding of “professional misconduct” by reference to either of subparagraphs (a) or (b) of the definition requires an antecedent finding of “unprofessional conduct”. “Unprofessional conduct” is also a defined term under the National Law:[4]
  1. "unprofessional conduct" of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes— […]
  1. [8]
    That non-exhaustive definition goes on to provide eight types of conduct embraced by the definition.
  2. [9]
    If proven conduct meets the definition of unprofessional conduct, establishing professional misconduct by reference to subparagraphs (a) and (b) of the definition requires a further step: proof that the unprofessional conduct falls “substantially” below the standard prescribed in that definition.  Axiomatically, proven conduct might satisfy the test for unprofessional conduct yet not meet the test required for it to be professional misconduct.
  3. [10]
    A foundational first step in establishing defined professional misconduct or unprofessional conduct is to identify the specific conduct said to satisfy the relevant definition/s.
  1. GROUNDS 1 – 3: CONDUCT INVOLVING FELLOW WOMEN EMPLOYEES
  1. [11]
    In this case, as in many other cases involving professional discipline, the allegations the subject of the referral are contained in an annexure to it which frames the allegations in a form akin to a pleading.[5]
  2. [12]
    Respectfully, this case is “pleaded” in a manner which obfuscates rather than clarifies the issues to be determined by the Tribunal.  That obfuscation pertains to the foundational question confronting the Tribunal earlier posed: what specific conduct is said to meet the relevant definition.  
  1. How does the Board “plead” grounds 1 to 3?
  1. [13]
    Grounds 1 to 3 as they appear in the referral are annexed to these reasons for ease of reference.  It is important to refer to three issues emanating from the manner in which the Board pleads its case:
  1. (a)
    The use of the conjunction “and/or”
  1. [14]
    It is of course unexceptional that allegations can be framed in the alternative: certain conduct can be pleaded as meeting a definition and the same conduct might be pleaded in the alternative as meeting another definition.  The use of the conjunction “and/or” rarely if ever achieves that purpose.  Here, its use creates a series of cascading permutations which derogate from a precise articulation of what is alleged.
  2. [15]
    I respectfully agree with what was said by Martin SJA in St Clair v Timtalla Pty Ltd (No 2) (‘St Clair’).[6] In that case, his Honour expressed agreement with what had been said in earlier authorities about the use of the conjunction, for example:
  1. I agree that the expression “and/or” is commonly an indication that the draftsman is not clear in his own mind about the matters with which he has to deal (cf Piesse, Elements of Drafting, pp 52-57).[7]
  1. In my opinion, the expression is particularly unhappy when it is used in a statement of claim, which should express precisely the foundation of
  1. the proceeding.  In the present case, as has been explained, an almost endless series of additional and alternative allegations would be conveyed by an analysis of the claim made in this way.[8]
  1. [16]
    For his part, Martin SJA concluded in St Clair:[9]
  1. While the conjunction “and/or” is now almost a commonplace in commercial documents and some other forms of legal drafting, it should not be used in a pleading.  Pleadings are intended to clarify and concentrate the issues in an action.  They will not do that if the language used leaves open to reasonable construction a large number of permutations and combinations such as occurs in this case […].
  1. [17]
    The above judicial statements are made in cases involving pleadings in the strict sense.  However, in my view, precisely the same problems referred to by those Judges occur in respect of a detailed referral of the instant type.  It too is designed to “express precisely the foundation of the proceeding”.[10] And it too suffers from the problems identified by his Honour and earlier authorities.
  1. (b)
    Particulars which “include but are not limited to”
  1. [18]
    Under the heading, “Particulars” in each ground it is pleaded: “the particulars include, but are not limited to”.  
  2. [19]
    That phrase plainly suggests that further allegations might be made at some future unspecified time.  The “particulars” are, it seems, intended to allege specific conduct.  The notion that other specific conduct – foundational to the operation of the statutory definitions – might be alleged at some later unspecified time raises (among other issues) fundamental questions of procedural fairness. That is all the more so in the case of self-represented respondents. 
  3. [20]
    That expression – and the suggestion it implies – have no place in a document that by its nature purports to set out the specific conduct forming the basis of the referral.
  1. (c)
    What conduct is “pleaded” as satisfying the statutory definition/s?
  1. [21]
    The pleading does not make clear whether apparently separate allegations of particularised conduct are said to meet the statutory definition/s of themselves, or whether those same allegations form part of a course of conduct alleged to do so.
  2. [22]
    As can be seen, the annexed Grounds assert a chain of conduct: proof of forms of conduct contained in the “particulars” proves one “and/or” another of a number of broadly-described types of conduct, which, in turn, is said to prove one “and/or” the other of two forms of broadly-described conduct, proof of which, in turn, is said to prove that one “and/or” the other of the relevant statutory definitions is satisfied.
  3. [23]
    Expressions such as “inappropriate conduct” or “unwanted physical contact” are convenient descriptors but their use in the pleading does not advance the Board’s case.  As they appear in the pleading here, they add a layer of proof which is not only not required, but which obfuscates what is required to be proved.
  4. [24]
    Leaving aside the other complexities created by a case alleged in the instant manner, the essential problem is that the Board’s case as pleaded does not make clear whether specific instances of particularised conduct are said to satisfy the statutory definition/s of themselves, or whether they are asserted to only achieve that purpose if seen as components of a course of conduct.  That distinction is crucial to the Board’s case and the Tribunal’s determination. 
  5. [25]
    It seems plain that the Board cannot intend that specific pleaded conduct satisfies the statutory definitions.  For example:
    1. on or around 25 July 2019, [Mr Amurao] sent Ms ST a text message asking her to go to lunch with him on the weekend and Ms ST did not respond;
    2. on or around 26 July 2019, [Mr Amurao] made a phone call to Ms ST and Ms ST did not answer the call;[11]
    3. on or around 7pm on 9 January 2020, while Ms JS was shopping at Coles supermarket [Mr Amurao] followed Ms JS and stood right next to Ms JS and/or stood behind Ms JS;
    4. (on or around 7pm on 9 January 2020, while Ms JS was shopping at Coles supermarket [Mr Amurao] asked Ms JS questions including but not limited to what she was buying and what she was having for dinner;[12]
    5. [Mr Amurao] asked Ms SC for the details of her social media profiles.[13]
  6. [26]
    If individual instances of conduct are not intended to satisfy the definitions of themselves, is the conduct alleged in each ground said to constitute a course or accumulation of conduct that meets the definitions?  Or, alternatively, does the Board contend that the totality of the alleged conduct across all three grounds constitute a course or accumulation of conduct that does so?
  7. [27]
    Fairness to both parties necessitated that central issue (together with others to be addressed below) being addressed at a further hearing.  At that further hearing, it was confirmed by counsel for the Board that the conduct alleged in all grounds was relied upon as founding a course or accumulation of conduct that met the statutory definition/s.[14]
  8. [28]
    Mr Amurao is not disadvantaged by the matters just raised.  He had provided a number of statements to the Board as part of its investigation which were referred to, and supplement, his final written submissions.  His responses addressed the conduct as a whole, for example providing a similar explanation for his conduct across all three grounds.   The same is true of the manner in which he conducted the proceedings on his own behalf.[15]

Factors affecting the evidence of Mr Amurao and the complainants 

  1. [29]
    Before examining the specific allegations of conduct sought to be proved by the Board, it is convenient to refer to relevant characteristics of the presentation and evidence of Mr Amurao and the complainants. 
  2. [30]
    Mr Amurao represented himself at the hearing and prepared his own material.  He is from the Philippines.  English is not his first language, but he plainly has a good command of it.  Equally, he is plainly intelligent and highly educated.  It can be accepted that there are cultural differences between his original culture and Australia, however there is no evidence before the Tribunal as to what those differences might be or any ramifications for his conduct emerging therefrom. 
  3. [31]
    In assessing the evidence of Mr Amurao more broadly, it is important I think to refer to aspects of Mr Amurao’s self- description and other factors relating to his presentation and evidence. 
  4. [32]
    Mr Amurao’s final written submissions contain the following passages which exemplify themes underlying many of his responses to the allegations made against him:[16]

I moved from Sydney to Queensland in 08 September 2019, hoping to expand my experience as a managing pharmacist at [the M Pharmacy].  Then everything went to turmoil when the COVID epidemic happened.  I felt alone and depressed, unable to see my family in the Philippines and Sydney.  Being isolated, the fear and uncertainty can impair anyone’s judgment, The COVID pandemic is the most chaotic and traumatic period in humans’ history in the 21st century, and it definitely impacted everyone’s life in certain level.

I consider myself a person of odd personality, I don’t drink alcohol and I don’t smoke.  I don’t enjoy a typical man’s routine pass time of going to bars and have a drink, but I do enjoy having dinner or lunch with friends or colleagues.  Being a son of a retired police officer and a person who values family, I always maintain the respect to other people specially the opposite sex.  I do enjoy company of females in fact 80% of my friends were female.  I believe that my odd personality and cultural background may have caused some female to misconstrue my intention but I would not at any point harass any individual.

[sic]

  1. [33]
    As will later be seen, both Mr Amurao’s oral evidence and his written submissions suggest he admits certain of the conduct alleged against him.  There is some ambiguity in that respect: does he admit some or all of certain conduct or is he merely expressing general regret at how his comments and behaviour were taken? 
  2. [34]
    Mr Amurao’s self-representation meant that many specific assertions (including for example that particular conduct did not occur or did not occur as alleged) were not specifically put to witnesses.  Attempts were made during the hearing to clarify the same.  
  3. [35]
    Mr Amurao’s questioning of witnesses, and the proceedings more generally, were clouded by what he clearly regards as unfair treatment in an employment context and by disputes he had, including at least some that may have impacted on his relationship with complainants.  As an example, a significant proportion of Mr Amurao’s crossexamination of Ms ST was occupied by him asking her questions as to whether she had a management position with the pharmacy and whether she had a personal relationship with the pharmacy manager.  Some relevance might have been attached to those questions – for example whether there was a power imbalance between Mr Amurao and Ms ST – but those questions about a peripheral issue overwhelmed, and effectively replaced, questions challenging the precise conduct Ms ST alleges.
  1. [36]
    All of the complainants give evidence of how Mr Amurao’s alleged conduct made them feel.   There are consistent themes: the conduct was persistent and unwanted; he made them feel unsettled; he was “creepy”.  In effect they assert that the conduct invaded their privacy or invaded their personal space.
  2. [37]
    A general feeling of unease, discomfort or offence resulting from accumulating conduct is, I think, not necessarily easy to describe by reference to specific instances.  For example, an invitation by one employee to another employee to attend a movie might, in isolation, seem insignificant.  It might, however, gain significance from its persistence and the manner in which it is conveyed.  I have those considerations in mind in assessing the evidence of the complainants. 
  3. [38]
    Equally, however, I find it difficult to shake the impression that the effluxion of time and participation in the investigation leading to this hearing have led to at least some instances of conduct that might otherwise have been considered relatively benign at the time being magnified into a later assertion of conduct that has more serious overtones

What specific conduct is sought to be proved by the Board?

Ground 1 - the alleged conduct concerning Ms ST at the P Pharmacy

  1. [39]
    Ms ST and Mr Amurao worked together at the P Pharmacy.  Ms ST was a “retail assistant and/or skincare consultant”.
  2. [40]
    As particularised her allegations can be seen to consist of five separate instances of conduct by Mr Amurao.  In broad summary, the allegations are that Mr Amurao asked her questions as to where she lived and what she did on the weekends; asked for her phone number and asked her to spend time with him outside of work hours.  Ms ST’s evidence is that “I felt very uncomfortable” and “I was trying to avoid confrontation with [Mr Amurao]”.
  3. [41]
    Included among the particularised conduct in ground 1 is an assertion that “there was no professional or work-related reason to” have interactions or text or other communication with Ms ST.  I am unable to see how that assertion is relevant to any asserted conduct, much less misconduct.  Notoriously, almost every workplace involves interactions and communications that have no professional or work-related purpose.  Indeed, it might be hoped that they occur.
  4. [42]
    I thought Ms ST attempted to give honest and reliable evidence.  There was no real suggestion from Mr Amurao, nor was it otherwise apparent, that the passage of time had impacted her recall of relevant events.  I suspect her evidence may have been exaggerated or magnified in the sense earlier described.  Nevertheless, I accept her evidence in so far as it pertains to the particularised instances of conduct.
  5. [43]
    Neither Mr Amurao’s cross-examination nor his final written submissions make clear precisely what conduct he admits or what he challenges and to what extent.  His crossexamination suggested an admission of sorts:[17]

So I just want to take this opportunity to apologise.  If you – basically, you misconstrued my behaviour of being friendly in a way – make you uncomfortable.  It’s not my intention.  It’s clearly that I made you – maybe I made you feel that way, but I do apologise for that. 

  1. [44]
    That sentiment is repeated in Mr Amurao’s final submissions: “I felt pain that [Ms ST] misunderstood my intention and that I was not aware that she felt that I behaved inappropriately”.[18] However, the submissions then go on to refer to Ms ST being “part of management” – an assertion that founds a contention that he “wouldn’t dare ask her out on a date when he knew she was management”.  I reject this self-serving assertion as a reason to doubt the alleged conduct occurred. 
  2. [45]
    Mr Amurao also asserts that Ms ST “failed to provide evidence that I have asked her repeatedly” – for example by not providing a copy of an SMS which he had requested during the Board’s investigation. He says the “only message I have sent her is via Facebook Messenger greeting her on her birthday to which she replies with no signs of any negativity”.[19] (He attaches a copy of the same).  
  3. [46]
    I reject that contention.  The evidence does not permit precise findings as to either the number or dates of oral and electronic communication between Mr Amurao and Ms ST, but I accept that by oral conversations and through phone calls and text messages, Mr Amurao contacted Ms ST on a number of occasions as she alleges.  I also find, as she asserts, that social occasions were suggested by Mr Amurao more than once.
  1. Ground 1 - the alleged conduct concerning Ms JB at the P Pharmacy
  1. [47]
    Ms JB worked with Ms ST in the beauty section of the P Pharmacy.  She says she had very little contact with Mr Amurao.
  2. [48]
    Initially, Mr Amurao contended that he had no recollection of Ms JB (who gave evidence via video link).  He made the same assertion in a statement provided to the Board on 6 May 2022.  He may not now recall her face and features, but his assertion more broadly does not accord with his questions to her or his responses to her allegations. 
  3. [49]
    I consider Ms JB was an honest witness with a good recall of the relevant events concerning her. I detected residual anger and animosity toward Mr Amurao in her answers to some of his cross-examination[20] but I do not consider that impacted her reliability or veracity.
  4. [50]
    The conduct concerning Ms JB as particularised consists of three instances of specific conduct.  They might be paraphrased as “the kissing incident”; “the text” and “the blocking incident”.
  5. [51]
    Mr Amurao denies he kissed Ms JB.  He asserts an inherent implausibility as a means of challenging the allegation: “I would not have kissed someone whom I was vaguely acquainted with through work after talking to them during a short train commute”.[21] I do not give that self-serving assertion any weight.  Ms JB’s account in her written statement of the train trip and his kiss on the cheek has internal cogency and consistency.  I accept it.
  1. [52]
    I accept, as Mr Amurao alleges, that Ms JB did not raise any of his conduct with him.  I place no weight on that fact in assessing Mr JB’s veracity and reliability.  She gives reasons for failing to do so in her statement, and I do not find it difficult to understand why a woman in her position vis a vis Mr Amurao would not complain to him.  Further, I accept Ms JB’s account that, although she was minded to report the kiss, she did not do so after speaking to a colleague who persuaded her that it may have been a misplaced friendly gesture.  That changed, Ms JB said, when the blocking incident occurred a couple of days later. 
  2. [53]
    In the Statement of Agreed Facts filed with the Tribunal, Mr Amurao says in respect of the blocking incident, “I deny this”.  However, he then goes on to assert any blocking was accidental when he and Ms JB crossed paths and says it was caused by the aisle being too narrow.  In cross-examination, he put both assertions to Ms JB but prefaced his questions by saying that he “didn’t remember [the incident] that way”.[22] Ms JB denied both explanations.  I accept her rejection of each suggestion (or their combination).  I accept her account of the incident. 
  3. [54]
    Ms JB says of the time after the blocking incident: 

Since the day that I told [Mr Amurao] to move out of my way and not block my way, he didn’t contact me again.  He didn’t talk to me or even look at me at work.  He kind of knew that I was angry and upset from the way he stood there holding the doorway.  He didn’t have any interaction with me from that day on.  He kept his distance, and I kept my distance as well.  

  1. [55]
    Otherwise in response to Ms JB’s allegations, Mr Amurao suggests her claims of him texting her have not been supported by copies of the relevant text messages and as a consequence he has not been provided with a “verifiable date/time”.  It appears true that no copy of the text message has been provided, but the evidence as to its contents stands or falls on the accounts given and I accept Ms JB’s evidence.[23]
  2. [56]
    Mr Amurao relied on an inconsistency in Ms JB’s evidence, apparently to challenge her veracity (or, perhaps, recall).  Her statement says Mr Amurao obtained her phone number from another worker.  Her answer in cross-examination was categoric that she had given her number to Mr Amurao at his request.  In my view, nothing turns on the discrepancy, particularly in light of the relevant delay between each.  It does not detract from my assessment of either Ms JB’s veracity or recall.
  3. [57]
    I find that Mr Amurao did kiss Ms JB on the cheek in the manner she describes.  I reject Mr Amurao’s denial.  I also accept Ms JB’s account of Mr Amurao blocking her way to the dispensary.  In making that finding I do not suggest any attempt to assault or cause harm to Ms JB - rather, I consider it was a juvenile, wholly unacceptable and concerning attempt by Mr Amurao to have Ms JB pay attention to him in circumstances where she plainly did not wish to do so.  I also find that the alleged text message which Ms JB said was sent to her was in fact sent.    
  1. Ground 2 – the alleged conduct concerning Ms JS at the M Pharmacy  
  1. [58]
    Ms JS worked as a pharmacy assistant at the M Pharmacy during Mr Amurao’s employment there.  Mr Amurao’s employment commenced prior to hers.  During Ms JS’s shifts, Mr Amurao was the pharmacist in charge.  She says her role “entailed a lot of interactions with [Mr Amurao]; our computers were right next to each other.  I had to have everything, all of my work, checked by him”.[24]
  2. [59]
    The particulars contain what appear to be a number of specific allegations of conduct:  the “invite out allegation”;[25] the “offering a lift to work” allegation;[26] the “sexual comments allegations” (which are taken to be four individual instances of conduct);[27] the “customer comments allegations”[28] (which, although it is unclear, is taken to be three individual instances of conduct); the “shopping at Coles allegation”[29] is taken to be one incident  as are the “car pool allegations”[30] and the “invite to lunch allegation”.[31]  (It might be noted that distinguishing an allegation of fact in the pleadings from the evidence said to support it is not straightforward). 
  3. [60]
    In cross-examination, Mr Amurao asked Ms JS whether he had ever sent her any text messages that were inappropriate to which Ms JS said no “[w]e only ever had discretion in text messages about work”.[32] No allegations in respect of Ms JS concern the sending of text messages.
  4. [61]
    The “carpool allegation” is supported by a text message sent by Ms JS to her friends dated 8 February 2020.  It was sent while she was a passenger in Mr Amurao’s car.  The text also refers to a number of other allegations against Mr Amurao contained within the particulars, including for example, the alleged sexual comment about Ms JS “being gay”.[33] The text reads in part:
  1. … And then, on the way home, right now, he won’t drop me off, he keeps saying we are going to lunch and I’ve already told him my friends are waiting for me.  And he won’t let it go.  And he keeps asking me if I’m gay because he overheard me telling [D] that [E]’s been sleeping in my bed until we get a place.  And he keeps bringing up if I’m sleeping with her and if I’m going to turn gay and making the most homophobic jokes.  
  1. I don’t even know what to do.  
  1. If he doesn’t drop me home, I’m calling the popo ha ha.
  1. [62]
    In a similar vein, the “shopping at Coles allegation”[34] is also supported by a relatively contemporaneous text message sent by Ms JS to friends: “go to walk into Coles to do my grocery shopping and bloody [Mr Amurao] walks in at the same time.  Now he is following me around Coles like a bad smell”. 
  1. [63]
    Ms JS says this in her statement about the “transgender conversation” (one of the sexual content allegations):[35]

He went to Thailand with his friends and they kept trying to hook him up with a transgender stripper or something.  And the way he kept laughing and describing having to have intercourse with this transgender stripper.  I said to him “I don’t want to know that, that’s disgusting”.  He was just laughing the whole time.  I remember it because I remember how disgusting that story was.  It was just so random, and I was just trying to do my work and he just starts telling me about this transgender person he was going to have sex with.  He was just laughing and giggling like it was a really funny story. 

  1. [64]
    The “transgender conversation” allegation was addressed by Mr Amurao putting to Ms JS that it wasn’t about having intercourse with a transgender person, it was about “making out”.  Ms JS responded that she couldn’t recall exactly what terms were used.  To my mind at least, any such difference does not indicate a true distinction. In any event, any such difference is not relevant to the substance of the allegation.
  2. [65]
    In asking questions about this incident Mr Amurao again appeared to make an admission of sorts:[36]

That time we’re just talking about – matter about the homosexuality, and I thought would be funny to share that experience, but I didn’t realise going to be offended about it, but that’s --- 

Right. 

--- 

Not my intention.  Just sharing a funny experience like – well to be frank, I working in the pharmacy and I was surrounded by all females sometimes.” 

[sic]

  1. [66]
    Mr Amurao appears to suggest in respect of the “carpool allegation” that the offer only occurred once in conjunction with Ms JS’s car having broken down.  On that occasion, Mr Amurao agrees he gave Ms JS a lift for a few days until her car was back on the road.  Ms JS agreed that Mr Amurao did in fact assist her to push the car but when she was asked whether she sent him a message asking about carpooling she was quick to respond:[37]

He asked me like he did every afternoon [to carpool], and I remember taking it up once – and I think in December – if I could take a ride also because I had to go to work, and I think I sent him that message that I needed to do the registers.  And obviously, at that time, I was having car trouble, so I did accept a lift from you. 

  1. [67]
    One incident should be referred to in more detail.  Ms JS alleges Mr Amurao, in effect, held her captive in his car when he drove her home from work on 8 February 2020. This was the same day on which he had arrived unannounced at her home to “carpool” with her.  
  1. [68]
    It was said by counsel for the Board that Ms JS needed a support person with whom she had “particular rapport”.  The need for the support person was, it seems, said to be as a consequence of Ms JS’s reaction to Mr Amurao’s conduct and, more specifically, what counsel described as the “substantial issue” of Mr Amurao “keeping her in [his] car when she had repeatedly requested to go home”.[38] The text message quoted above at [61] occurred during this journey.  The text message records a number of issues Ms JS had with Mr Amurao’s conduct.  Being captive in the car is but one of them. 
  1. [69]
    In so far as the suggestion is that Ms JS was being kept in the car against her will, the paragraph of her statement following the recollection of her text message records:[39]
  1. I kept saying to [Mr Amurao] that I wanted to go home and [Mr Amurao] kept laughing and making a joke about it.  And then there was silence for the rest of the way home.  I was feeling really uncomfortable and a bit scared.  [Mr Amurao] ended up taking me home after I kept saying please. 
  1. [70]
    Mr Amurao’s written submissions at the conclusion of the hearing cross refer to earlier statements made by him in response to Ms JS’s allegations (and allegations by other complainants).  A submission made to the Board by Mr Amurao dated 22 September 2021 contains quite specific denials of allegations made by Ms JS.  Mr Amurao denies “not taking no for an answer” with respect to “things like giving her a lift in my car, going to see a movie or having lunch”.  He specifically contends that “he never asked her to go to a movie or have lunch with me”.[40] The movie invitation allegation is also the subject of a text message from Ms JS to her friends:[41]

Now he won’t stop asking me to go to Star Wars with him I already said I’m busy and he goes no come come.  I don’t know what to say anymore.  He won’t accept no.  M8 if he rocks up at my house. 

  1. [71]
    Mr Amurao specifically denies that he “wanted to know what she was doing with her partner in a sexual way”.  He says she provides no substance to that allegation.  There is merit in his assertion – the allegations (apart from the transgender issue) are made in a very broad and unparticularised way.  He recalls seeing Ms JS at Coles only on one occasion in which he says he “did not approach her to talk to her” because “by then our relationship had soured”.[42] I accept his evidence in that respect – it is consistent with Ms JS’s evidence as to their workplace relationship.
  2. [72]
    Similarly, Mr Amurao’s statement contains a specific denial of Ms JS’s allegation that he asked her if she wanted to carpool in the afternoon.  He says “categorically that her story is a fabrication”.  In respect of the issues that Ms JS says she raised with her friends in text messages and the like, Mr Amurao contends that at no stage did Ms JS raise any concerns with him, or with the proprietor of the pharmacy.  He refers in particular to an email exchange with the manager of the pharmacy, Ms B, in which a  variety of matters are referred to.  He quotes in particular the following extract from Ms B’s email:[43]

Please note on speaking with [Ms JS] she raised that she had no issues with you prior to my visit.  However your attitude towards her seemed to change after this.  I have addressed all of the issues you have identified with [Ms JS], via the phone.  My observation of the situation is that there is a lot of miscommunication between the two of you and an area that the both of you need to work on, together.  [Emphasis by Mr Amurao].

  1. [73]
    Ms JS’s allegations and Mr Amurao’s denials need to be seen against a background where various allegations and cross-allegations are being made within what might be described as an employment context.  Indeed, Ms JS says:[44]
  1. I got into trouble nearly every day with [Mr Amurao].  It mostly was something little like I made a mistake with the dispensing and put a wrong repeat or wrong brand.  I used to suggest something and instead of just saying “I know”, [Mr Amurao] would “get up me”.  I felt it wasn’t it fair.  I didn’t have any issues with anyone else in a senior role in the pharmacy.  
  1. [74]
    The relationship between Ms JS and Mr Amurao is further exemplified by this exchange relating to a complaint by a customer which Ms JS agreed she did not bring to Mr Amurao.  When Mr Amurao questioned her about that she said:
  1. And when I asked you why you didn’t discuss this with me, what is your response? --- I bluntly said it was none of your business because ah – and I said that because I had been feeling.  That I couldn’t talk to you about things, because our confrontations we had been having. 
  1. We – we had – what sort of confrontation are you talking about? --- in the statement I talk roughly about it. How it felt sometimes you – you had flipped a switch with me, and – and most days I was getting in trouble for something. And we were disagreeing a lot.
  1. [75]
    Mr Amurao also suggests that he wouldn’t have harassed Ms JS because he knew that her mother was friends with the owner.  Again, whatever the truth or otherwise of that assertion, I place no weight on what is a self-serving statement about what he “would have” done.
  2. [76]
    I consider Ms JS’s evidence is coloured by her animosity towards Mr Amurao arising, it seems clear, from long standing grievances about the manner in which she was treated by him in the workplace which, it seems, persists despite the significant period of time that has elapsed since those events and the hearing.  I consider a consequence is that at least some of Ms JS’s evidence is exaggerated.  My earlier comments as to how incidents have been magnified by complainants is, I think, particularly true of Ms JS.  
  3. [77]
    Nevertheless, I consider significant weight should be attached to the text messages sent relatively contemporaneously by Ms JS to her friends.  They do not have the colour of self-corroboration in the sense that they were written with a purpose other than a communication with friends in respect of events occurring at that time.
  4. [78]
    I find that on more than one occasion Mr Amurao asked Ms JS to spend time with him outside of work.  I find that those occasions included watching a movie.  I find those occasions included asking her to go to lunch with him.
  5. [79]
    I find that Mr Amurao’s offer to Ms JS to carpool was not confined to the one occasion on which her car broke down as he asserts.  I find that he asked her to carpool on a number of different occasions.  A conversation occurred with Ms JS when Mr Amurao asked whether she was sleeping with a female friend with whom she was sharing a bed until they found a flat in which to live with.  I also find in that context that Mr Amurao said to Ms JS that she was “going to turn gay”.  I find the assertions with respect to Mr Amurao telling Ms JS a story about previous sexual activity with a transgender person in Thailand occurred as she alleges.  
  6. [80]
    I find the words “oh that smells good” were used with respect of a perfume that Ms JS was testing in the pharmacy and when asked why Mr Amurao said words to the effect of “you don’t want to know”. 
  7. [81]
    I am not prepared to find that Mr Amurao made comments suggestive of him wanting to know about Ms JS’s sexual relationship with her partner – no part of the evidence of Ms JS renders them as other than vague and unparticularised.  I also am not prepared to find that the comment made about the perfume being tested by Ms JS was, as alleged, an inappropriate comment of a “sexual nature”.  As earlier referred to, I accept that Mr Amurao followed Ms JS in Coles but I do not accept he spoke to her.
  8. [82]
    I accept the conduct as found unsettled Ms JS (as it did other complainants) and she regarded it as invasive of her privacy.  I accept there was a cumulative effect to it.  Thus, while someone asking another person to a movie might not of itself be unusual or intrusive, I accept the accumulation of instances of conduct made Ms JS feel annoyed, exasperated and uncomfortable and that her privacy and personal space were being intruded upon in an unwelcome way.
  1. Ground 3 – the alleged conduct concerning Ms SC at the S Pharmacy 
  1. [83]
    At the time of the alleged conduct concerning her, Ms SC was an 18-year-old pharmacy assistant working with Mr Amurao in the dispensing of medications.  
  2. [84]
    As particularised, eight instances of specific conduct are asserted as involving Ms SC.  The allegation that Facebook messages were sent on 1, 5 and 7 November 2020[45] are treated as the one instance of conduct; the balance of the five allegations particularised[46] are treated as separate instances of conduct. 
  3. [85]
    The allegation that Facebook messages were “inappropriate” appears to refer to Ms SC stating that he asked her what costume she was going to wear to a party and whether she was going to get drunk. 
  4. [86]
    Mr Amurao largely admits the specific allegations of conduct made by Ms SC but attributes to them jocular interactions between work colleagues.  Again emphasising that he was lonely and depressed during Covid, he says he “saw her as a potential friend because she had a funny personality and positive energy”.[47] He agrees he went  to her other place of work and that he said she “looked different” to how she looked at the pharmacy.[48]
  1. [87]
    In respect of the allegation that he “took his shirt off”, it seems clear that the reference is to the white tunic familiar to retail pharmacy settings.  Mr Amurao agrees that he took this tunic off and that he had a “basketball jersey” underneath.  He says in effect that this alleged incident was no more than him removing his work uniform in the dispensary area at the end of the work day to reveal the clothing he otherwise wore outside of work.[49] I consider this is an example of the exaggeration or magnification of a benign event I have earlier referred to. 
  2. [88]
    Ms SC states she thought his exchanges and requests to go on social occasions were “… awkward. I didn’t want to be rude or say no, so I tried to suggest other things he could do”.  Mr Amurao says he was:[50]

… shocked and saddened that I made her feel uncomfortable because that was never my intention.  I was only ever seeking friendship and company.  With the benefit of hindsight I can see now that I should not have persisted with asking her to spend time with her…

  1. [89]
    I accept that the specific instances of conduct alleged by Ms SC occurred (noting that the connotations attached to at least some of that conduct is a different issue).  I also accept they had a cumulative effect upon her as referred to above.  Leaving aside Mr Amurao’s apparent admission of much of the conduct I consider Ms SC gave honest evidence and her recall was not affected by the effluxion of time.  Her evidence was consistent internally and measured. I detected no particular animosity toward Mr Amurao.
  1. Ground 3 – the alleged conduct concerning Ms JEB at the S Pharmacy
  1. [90]
    Ms JEB was also employed at the S Pharmacy as a pharmacy assistant and worked with Mr Amurao as such.  She was aged 18 at the date of the alleged conduct.
  2. [91]
    As particularised, five instances of specific conduct are said to involve Ms JEB.[51] Again, Mr Amurao largely admits the occurrence of the specific conduct alleged against him.  
  3. [92]
    Mr Amurao says that, like Ms SC who was also employed at the S Pharmacy, Ms JEB had a “fun, bubbly personality” which he warmed to and sought her friendship in consequence.  He contends in effect that this provides a background to his interaction with her and also a context for his contention that Ms JEB never told him she felt uncomfortable.
  4. [93]
    That assertion by Mr Amurao also provides context to his further contention that Ms JEB’s account of their interaction is exaggerated and bears a connotation of discomfort which was not present at the time.  To that effect, Mr Amurao contends that, had he been aware that Ms JEB was uncomfortable as she alleges, or had she expressed discomfort, he would “not have asked a second time”.[52]
  5. [94]
    Mr Amurao specifically denies any sinister connotation surrounding the “car park allegation”.  He admits saying to Ms JEB that he “should book early next time” and says it was said jokingly and made her laugh.  He says Ms JEB (and another employee, Ms SR) left before him and could have driven away had either experienced the discomfort alleged.  He says he did not block their way, and the interchange occurred as his car and Ms JEB’s car were parked next to each other.  
  6. [95]
    In her oral evidence, Ms JEB said that she wasn’t sure how many times Mr Amurao asked her out, but it was “more than four or five [occasions] and less than 10”.  Significantly as it seems to me, she said that all those occasions occurred on the one day and not after that.[53]
  7. [96]
    Again, I consider Ms JEB’s account of events has been magnified or exaggerated in the sense earlier described.  Again, though, I accept the central thrust of her evidence: the essence of the specific conduct she alleges occurred and caused her feelings of discomfort.

Grounds 1 to 3: summary of findings

  1. [97]
    Save as specifically referred to above, I find that the specific incidents of conduct alleged by all five complainants occurred.
  2. [98]
    I find that the conduct directed to all five young women made each of them feel uncomfortable.  Various descriptions apply: discomfort, feeling a bit scared, feeling that Mr Amurao was a bit creepy and the like.  I consider those feelings as expressed by the five women are genuine and indeed understandable. I also accept that the specific incidents had a cumulative effect upon each complainant.
  3. [99]
    I find the conduct was unwanted.  I accept it produced feelings in the women that their privacy and “personal space” were being invaded.  I find that each of the women attempted to make those feelings clear to Mr Amurao.  I reject Mr Amurao’s contention that their failure to raise their concerns with him – or failure to raise them timeously or with others – either speaks to the conduct not occurring as alleged or as a reflection of how it made any of the women feel.  
  4. [100]
    I am not persuaded that Mr Amurao’s conduct was motivated by ill will or malevolence or that he intended discomfort or lack of respect in either initiating or persisting with the proven conduct.  More likely, I think, it was the immature expression of the personality traits and loneliness that he describes. 
  5. [101]
    However, his motivations and intentions are irrelevant to the impact upon the complainants and are also irrelevant to the inappropriateness of the conduct when seen as a whole.  Mr Amurao’s unwanted conduct, his manner, and in particular persistence of the conduct caused each of the women discomfort and distress.  Neither do Mr Amurao’s motivations and intentions render his conduct acceptable or appropriate.  It was not.  Maturity and adherence to prevailing social norms require sensitivity to the feelings and desires of others – whether in the workplace or otherwise.

GROUNDS 4 AND 5: ALLEGED DISPENSING MISCONDUCT 

  1. [102]
    Grounds 4 and 5 are “pleaded” in relevantly identical terms.  Many of the comments made earlier apply also to the manner in which the allegations are set out in these grounds.  
  2. [103]
    Again, the central initial question is, what specific conduct is alleged and proved?  In broad terms, that question is answered by the assertion that Mr Amurao dispensed medications (“and/or” caused medications to be dispensed) to himself without a valid prescription.

What evidence underpins the Board’s case?

  1. [104]
    Two Patient History documents in Mr Amurao’s name constitute a central foundation of the Board’s case.  The documents are business records of the P Pharmacy and M Pharmacy respectively.  Mr Amurao admits that each of those documents pertain to him.  
  2. [105]
    The two documents, together with Mr Amurao’s admissions prove:
    1. Specified medications were dispensed to Mr Amurao on various dates.[54]
    2. Each listed medication was purportedly dispensed pursuant to a prescription issued by either of two doctors, Dr F or Dr S.  
    3. Each listed medication, with its dose and instructions, was dispensed by a pharmacist identified within the document by reference to initials designated to the pharmacist by the pharmacy.   
    4. Each listed medication was dispensed (or checked and authorised for dispensing) by a pharmacist with the attributed initials “EA”.  
    5. If a dispensing technician prepared the listed medications for dispensing, the pharmacist whose attributed initials appear is charged with checking and ultimately authorising the dispensing of each medication and the accuracy of data recorded.

How does the Board seek to prove Mr Amurao dispensed the medications?

  1. [106]
    Crucial to the Board’s case is proving that the initials “EA” represent Mr Amurao and, thus, it is Mr Amurao who has either dispensed to himself each of the medications in each Patient History or has caused each to occur by being responsible for checking and ultimately authorising the dispensing of each.  
  2. [107]
    Save for separate material relating to Dr F’s prescriptions to be addressed below, if the Board does not establish that fact, their case in respect of grounds 4 and 5 must fail: medications may not have been lawfully dispensed, but it is not established that they were dispensed, or caused to be dispensed, by Mr Amurao.  No other evidence otherwise proves the dispensing of each medication by Mr Amurao.
  3. [108]
    The reasons which follow will seek to explain the Tribunal’s finding that, despite Mr Amurao’s denial, the initials EA represent him and prove that, on each occasion the  initials appear in each Patient History, they signify that the relevant medication has been dispensed by him to himself (or that he caused that to occur).

How does the Board seek to prove the absence of valid prescriptions? 

  1. [109]
    The pharmacist members of this Tribunal confirm that it would be preferable in the usual course of events for pharmacists to not dispense medications to themselves.  Yet, there is nothing of itself improper or unlawful in a pharmacist doing so.  However, that can of course occur only if there is a valid prescription properly issued by, relevantly, a registered medical practitioner for each medication dispensed.
  2. [110]
    Among other documentary evidence, the Board relies upon the clinical notes of each of Dr F and Dr S and copies of some prescriptions issued by them.  Those documents, together with the doctors’ evidence, are said to prove when medications were prescribed and to whom.  The Board also relies upon copy prescriptions produced by the manager of the M Pharmacy, Ms B which, it is contended, cannot be explained by any consultation with either doctor, or any prescription issued by either doctor.
  3. [111]
    The Board contends that particular identified medications were dispensed but no prescription exists from either doctor authorising those dispensings.  Secondly, the Board contends that copy prescriptions before the Tribunal purportedly issued by both doctors were not in fact issued by them and are not referable to any consultation which can explain them. 
  4. [112]
    Mr Amurao contends centrally that, with one or two irrelevant exceptions, all medications dispensed to him were for use by his father.  That does not appear to be in dispute.  In denying the allegations against him, Mr Amurao gives a number of explanations.  His explanations are in many respects internally inconsistent and confusing. 
  5. [113]
    Mr Amurao says that anomalies in the Patient Histories can be explained by errors made by dispensing technicians.  He contends that “my father’s medications have been dispensed in my name”.[55] In respect of prescriptions issued by Dr F, Mr Amurao says his own errors caused errors in the prescriptions issued.
  6. [114]
    In respect of prescriptions attributed in the Patient Histories to Dr S, he says three things.  Medications dispensed where no written prescription is evidenced in Dr S’s records is explained, he says, by Dr S having issued handwritten scripts.  Mr Amurao says also that Dr S has confused his father with him because each bear the same forename and surname.  Finally, Mr Amurao says absent prescriptions are explained by medications having been prescribed to his father when he was discharged from hospital after a surgical procedure.
  7. [115]
    The reasons which follow will seek to explain the Tribunal’s finding that the Board has proved grounds 4 and 5 and why Mr Amurao’s various contentions are all rejected.

Does the Board prove the initials “EA” signify medications dispensed by Mr Amurao?

  1. [116]
    The Patient Histories prove that all medications (save two not relevant to the Board’s allegations) were dispensed to Mr Amurao at two different pharmacies some 1700 kilometres apart and otherwise unconnected with each other, by a pharmacist with the  designated initials “EA”.  Mr Amurao denies those initials refer to him at either pharmacy. 

The P Pharmacy

  1. [117]
    Ms Y was the manager of the P Pharmacy during Mr Amurao’s employment there.  Her evidence was clear, cogent and dispassionate.  No animus toward Mr Amurao was evident.  Despite cross-examination from Mr Amurao which, respectfully, was at times confusing and disjointed, Ms Y strove to give the best answers she could.  Her evidence is accepted.
  2. [118]
    Ms Y gave evidence that the initials EA were given to Mr Amurao and they were unique to him.  No one else used those initials during Mr Amurao’s employment at that pharmacy.  She produced a business record of the pharmacy relevant to the time Mr Amurao worked there which lists the initials of all relevant dispensing employees.  In each case, two initials are used.  In each case they follow the first letter in the person’s forename and surname.[56] That applies equally to Mr Amurao.  Mr Amurao is shown as EA.

The M Pharmacy

  1. [119]
    Ms B was the manager of the M Pharmacy during Mr Amurao’s employment as a pharmacist there.  She gave evidence that the dispensing initials “EA” were used by Mr Amurao during his time there and were unique to him.  She says that “the dispensary technicians would use those initials as well, but all of their work was checked by the pharmacist, who at that time was [Mr Amurao]”.[57]
  2. [120]
    Ms B goes on to say:[58]

It would be possible for a dispensary technician to process the drug through the system and not take any stock off the shelf, not label anything, and there would be a record of the drugs being dispensed.  However, in this case, the medications listed in the [patient]’s history were also paid for by [Mr Amurao].” 

  1. [121]
    Ms B’s reference to Mr Amurao having paid for the medications refers to a correlation done by her and other staff whereby drugs dispensed as recorded in the Patient History were cross-referenced to till receipts (which are also annexed to her statements).[59]
  2. [122]
    The effect of her evidence in that respect is that medications attributed as having been dispensed or authorised by “EA” were paid for by Mr Amurao.

Mr Amurao’s explanations

  1. [123]
    Mr Amurao has contended consistently that he used the initials “ED” during his employment at the P Pharmacy.[60] In oral evidence, Mr Amurao said that he used the initials “EDA”.  That assertion had not earlier been made by him in any statement given to Ahpra during its investigation.  Mr Amurao’s claim was specifically rejected  by Ms Y: the software at the time did not permit the use of three initials.  Neither Mr Amurao nor any other employee used three initials.  
  1. [124]
    In what appeared to be a response to that evidence, Mr Amurao suggested that his initials came out as “ED” because “the A is omitted”.  The difficulty with that explanation is that the premise fails: his initials never appeared as ED.  He made no apparent challenge to the evidence that “ED” was not used by anyone.  Those initials do not appear in the list of initials used by employees or anywhere on his Patient History.  He does provide documentary evidence that “ED” was his sign-on for the P Pharmacy computer system, but that is entirely unconnected with his dispensing initials.
  2. [125]
    In other evidence, Mr Amurao agreed he personally checked a particular dispensing that carried the initials EA.  When asked how it could be that he signed off on a dispensing with the initials EA if that wasn’t him, he dissembled, blaming the dispensing technician for an error he “should have checked”:[61]

Well, a dispensary tech can most likely use “EA”.  I am not too sure why they used “EA”.  Thinking maybe I am “EA” because they know my full name – ah – and then just used, entered “EA” and then I just – when it was presented to me I didn’t – I just checked because at back – at the back of my mind it is my father’s medication, I am familiar with it.  I am prejudiced about my checking because it’s my – it’s my father’s medication.  It is my error.  Maybe perhaps I – I should have – I should have – ah – checked.

  1. [126]
    Added to those matters is evidence in Mr Amurao’s Patient History for the P Pharmacy that he (lawfully) prescribed to himself a flu vaccine on 9 May 2019.  The dispensing initials for that self-prescribed medicine are “EA”.  Mr Amurao offers no explanation as to who, using the initials EA, prescribed and dispensed the flu vaccine or, if it was him who prescribed and dispensed it, how EA was used by him on that occasion but on no other occasion recorded in the Patient History. 
  2. [127]
    Mr Amurao’s contention must be that a pharmacist or pharmacy technician unknown to him or Ms Y or Ms B had chosen initials listed as attributable to him to dispense, or sign off on the dispensing of, medications attributable to prescriptions issued in his father’s name.  If, as he asserts, an error by technicians is the explanation, the same error has been consistently perpetrated by different technicians at different times and at different pharmacies some 1700 kilometres apart.  The implausibility is selfevident. 
  3. [128]
    I find that the initials EA as used in each of the Patient History documents refers to a medication dispensed by Mr Amurao or which he caused to be dispensed.  I find that Mr Amurao dispensed or caused to be dispensed each of the relevant medications in each Patient History.
  4. [129]
    In his statement to Ahpra on 22 September 2021 Mr Amurao says, “[t] he patient history from [P Pharmacy] is mine, but it is now clear to me that my father’s medications have been dispensed in my name”.  I find that the Mr Amurao Senior’s medications were dispensed in Mr Amurao’s name because Mr Amurao dispensed them as such.

Could Dr F’s prescriptions issue lawfully?

  1. [130]
    The further hearing on 14 March was used to raise an important issue not otherwise addressed in the Board’s case.
  2. [131]
    Medications of the type relevant to this case can only be lawfully prescribed if there is a proper therapeutic need for the medication.  That therapeutic need is established by a present or past consultation with a registered medical practitioner.  Mr Amurao confirmed in the 14 March hearing that he was well aware of this.[62]
  3. [132]
    It is common ground that Dr F never had a face-to-face consultation with either Mr Amurao or Mr Amurao Senior.  Rather, he prescribed medications via what is described as a “kiosk” at the P Pharmacy.  Mr Amurao admits using the kiosk in an attempt to obtain medications for his father.
  4. [133]
    Dr F’s evidence[63] explained how prescriptions can lawfully issue.  The kiosk is designed for situations where patients “cannot access their normal treating GP”.  No schedule 8 drugs or drugs of dependence can be prescribed.  Repeats cannot generally be issued.  “There are a limited set of medications that are prescribed through the kiosk system”.
  5. [134]
    A “consultation” occurs by the patient answering a questionnaire which is submitted to a prescribing GP.  Dr F says that “there is an element of trust between the patient and the doctor that the information being provided by the patient is true and correct”.  The process is also designed to have a cross-checking system:[64]

The patient fills in their date of birth and other information, which is then crosschecked by the dispensing pharmacist where the kiosk is located.  The pharmacist would normally be standing with the patient when they use the kiosk, because all the kiosks are actually within the pharmacy itself.    

  1. [135]
    By his own admission, Mr Amurao was using the kiosk to obtain medications for his father.  Dr F’s clinical records consist of the questionnaires completed by Mr Amurao on 4 and 18 June 2019.  A search of clinical records reveals them to be the only two “consultations” by Mr Amurao.  There were no “consultations” recorded for Mr Amurao Senior.[65]
  2. [136]
    The questionnaire of 4 June 2019 records the patient as “[EA] 50yo (14/12/70)”.  The 18 June questionnaire records the same patient information as “[EA] 30 yo (14/12/90)”.   Mr Amurao Senior was born on 12 December 1936.  He was aged 73 in June 2019.
  3. [137]
    Mr Amurao could not pretend to be his father for the purpose of obtaining medications for his father.  Doing so would invalidate the “consultation” provided for by the kiosk process just as much as pretending to be another patient in order to obtain medications in a face-to-face consultation would result in a prescription that was unlawful and invalid for obtaining the medications to which it relates. 
  4. [138]
    Equally, Mr Amurao cannot say that using his correct name and correct date of birth in the first questionnaire constituted him being the patient.  If he represented himself  as the patient, he has knowingly given patently false answers to the questions on which the prescriptions depend – contrary to those answers, he did not suffer from the ailments to which the medications related, and he had not previously been prescribed the medications sought. 
  1. [139]
    Of the two questionnaires, Mr Amurao says this:[66]

I did not realise at the time that I made an error when [trying to get a prescription for my father from the kiosk], such that it defaulted to my record (as far as I could remember I got a prescription from the kiosk before).  This is a one-off thing and I acknowledge that I made a mistake in entering some information like my father’s birth date which was 12/12 and mine was 14/12.  The error of date that I entered was 1990 which was an error but it still defaulted to my personal record with the year 1970.  The kiosk was accessed through a tablet which was not user friendly.  I acknowledge my error; it was unintentional.

  1. [140]
    The 4 June 2019 questionnaire with Mr Amurao’s (correct) details cannot have “defaulted” to his record; there is no evidence before the Tribunal of any such earlier record and Dr F’s evidence is squarely to the contrary.  Mr Amurao did not, as he alleges, refer to his father’s birth date – both documents record his birthday (14 December) and the year (1990) belongs to neither.  
  2. [141]
    Mr Amurao’s explanation is rejected.  
  3. [142]
    The matters just described are not specifically pleaded by the Board.  They were put to Mr Amurao and submissions from both parties were sought in the further hearing on 14 March 2025.[67]
  4. [143]
    No valid prescription can have issued to Mr Amurao (or Mr Amurao Senior) from Dr F because there was no valid “consultation” by either.  Dr F could not have satisfied himself of that which he was required to do.  As a consequence, no medications could have been dispensed lawfully pursuant to any such prescriptions.

Prescriptions issued by, or attributed to, Dr F

  1. [144]
    The evidence contains other difficulties emanating from Dr F’s prescriptions.
  2. [145]
    The Board’s case centres on examining specific instances of medications being dispensed and investigating whether each such instance is supported by a valid prescription.
  3. [146]
    Dr F’s clinical records reveal him issuing four prescriptions on 4 June: two for Metoprolol 50mg and two for Micardis, 40mg.  Each prescription was issued to “[EA] (dob 14/12/1970)”.  On 18 June two prescriptions, each for Simvastatin, 20mg issued to “[EA] 14/12/90)”.  In accordance with the policy earlier referred to, no script had repeats. 
  4. [147]
    The Patient History documents for the P Pharmacy proves that “EA” dispensed to himself the following relevant medications[68] attributed to the prescriptions by Dr F: 

11 June 2019

Simvastatin tab 20mg 

18 June 2019

Trusopt eye drops

5 July 2019

Telmisartan tab 40mg 

12 July 2019

Pantoprazole ec-tabs 

Pantoprazole ec-tabs 

Pantoprazole ec-tabs 

Pantoprazole ec-tabs 

Pantoprazole ec-tabs 

Pantoprazole ec-tabs 

12 July 2019

Telmisartan tab 

Telmisartan tab

Telmisartan tab

Telmisartan tab

12 July 2019

Metoprolol tab 50mg

Metoprolol tab 50mg

Metoprolol tab 50mg

12 July 2019

Simvastatin tab 20mg

Simvastatin tab 20mg

Simvastatin tab 20mg

  1. [148]
    In addition, on 5 October 2019 at the M pharmacy, Metroprolol was dispensed three times; Simvastatin twice and Telmisartan once.   All are also attributed to prescriptions from Dr F. 
  2. [149]
    The proof of the dispensing of those medications by reference to the Patient Histories and the evidence of Dr F, including the documentary evidence he produces to which reference has earlier been made, establishes: 
    1. The 7 June 2019 dispensing of Metoprolol cannot have five repeats as recorded in the Patient History because Dr F’s prescription for that date had nil repeats. 
    2. Metoprolol could not have been dispensed pursuant to valid prescriptions on 7 June 2019; on three occasions on 12 July 2019 and on two occasions on 5 October 2019 because Dr F issued two no-repeat prescriptions on 7 June 2019.
    3. Four dispensing’s of Telmisartan and six of Pantoprazole on 12 July 2019 cannot have been pursuant to a prescription issued by Dr F because he never prescribed either such medication.
    4. The dispensing of Simvastatin on 11 June 2019 cannot have been pursuant to a prescription issued by Dr F because he issued no such prescription until 18 June 2019.
    5. The 11 June 2019 dispensing of Simvastatin cannot have five repeats as recorded in the Patient History because Dr F’s prescription did not have repeats.
    6. Simvastatin was dispensed on four occasions, once on 11 June and three times on 12 July when Dr F issued only two nil repeat scripts on 18 June. 
  3. [150]
    Questions of an identical type arise in respect of medications dispensed by “EA” at the M Pharmacy attributed to scripts from Dr F.  The further three dispensings of Metoprolol and two of Simvastatin on 5 October cannot have been in respect of Dr F’s scripts because they had no repeats.  The dispensing of Telmisartan that day cannot have been from a Dr F script – he never prescribed that medication.  
  4. [151]
    Plainly enough, Mr Amurao’s contentions in respect of the use of the initials EA earlier examined pertain to the findings just made.  Those explanations have been rejected.  Mr Amurao is EA on each occasion when those initials appear on each Patient History.  Mr Amurao dispensed to himself each medication listed in each Patient History.  
  5. [152]
    Mr Amurao attributes data entries on the P Pharmacy Patient History to error – either other pharmacists or pharmacy technicians erroneously entering his initials and the other data recorded.  For the reasons earlier given, that contention is rejected.  
  6. [153]
    I consider it extremely unlikely that any of those medications were prepared for dispensing by a pharmacy technician; I consider it much more likely they were prepared and dispensed by Mr Amurao himself.  However, even if any medication was prepared by a technician, EA (i.e. Mr Amurao) was responsible for checking and authorising the dispensing of each medication and the data entered on the record accordingly. 
  7. [154]
    I find that the medicines listed in Schedule B of the Referral attributable to prescriptions by Dr F were dispensed by Mr Amurao and not dispensed pursuant to valid prescriptions by Dr F.  

Prescriptions issued by, or attributed to, Dr S 

  1. [155]
    Save for one dispensing of Trusopt eye drops on 18 June 2019, all of the Board’s allegations insofar as they involve prescriptions attributed to Dr S relate to the dispensing of medications at the M Pharmacy.[69] The allegations fall into three discernible groups relating to the medications set out in Schedule B to the referral: 
    1. Medications attributed to prescriptions from Dr S which were never prescribed by him to Mr Amurao Senior at any time.
    2. Medications which, although attributed to a script from Dr S, do not correlate to his records of any script issued by him or to any consultation with Mr Amurao Senior.
    3. Medications which correlate to copies of repeat scripts held by the M Pharmacy and purportedly issued by Dr S that are irregular on their face.  
  2. [156]
    The Patient History for Mr Amurao at the M Pharmacy, and the Tribunal’s finding that the initials EA represent Mr Amurao, establish that Mr Amurao dispensed to himself the medicines recorded in the Patient History and that he recorded, or was responsible for authorising the checking and recording of, the data there recorded. 
  3. [157]
    Specifically, Mr Amurao recorded, or was responsible for recording, Dr S as the prescribing doctor in respect of the dispensing of each medication listed and that a prescription from Dr S provided the authority to dispense the relevant medication.
  4. [158]
    Dr S provided a statement of evidence and was cross-examined.  His veracity was not challenged.  Dr S was open about matters which he did not recall.  He said that he “does not recall the specific details such as [Mr Amurao Senior’s] face”[70] but he did recall the first consultation despite the effluxion of time.  It occurred, he said, when Mr Amurao Senior had a fall at the shopping centre where the practice is situated – an apparently not uncommon occurrence.  I accept Dr S’s evidence as honest and reliable.
  5. [159]
    Dr S relied upon documentary evidence produced from his records. Save for one matter to be referred to below relating to use of a nickname “Ed”, the authenticity and reliability of those documents is not challenged.
  6. [160]
    Mr Amurao Senior (DOB 12 December 1936) was Dr S’s patient.  Dr S prescribed medications to him. Mr Amurao was never Dr S’s patient.  Dr S never prescribed medications to him.   
  7. [161]
    Dr S saw Mr Amurao Senior on three occasions.  On two of those occasions, 2 June and 22 June 2019, he prescribed medication.  The prescriptions on 2 June are not relevant to the instant allegations.[71]
  8. [162]
    On 22 June, Dr S issued prescriptions for Metroprolol; Simvastatin and Telmisartan.  Each had five repeats.  Thus, Dr S authorised medications to be dispensed 18 times in total.  Mr Amurao’s Patient History reveals that medications attributable to Dr S were dispensed at the M Pharmacy 34 times.  The same Patient History reveals six medications attributable to Dr S’s scripts were dispensed.

What dispensing is not attributable to Dr S’s prescriptions?

  1. [163]
    The evidence establishes
    1. Dr S never issued a prescription to Mr Amurao Senior (or Mr Amurao) at any time for three medications: Allopurinal; Diprisone and Anora Ellipta.
    2. Dr S only ever issued a prescription for the other medications attributed to his prescriptions (Metroprolol; Simvastatin and Telmisartan) on 22 June 2019 and on no other date.
    3. Trusopt eye drops were dispensed on 18 June 2019 purportedly pursuant to a Dr S script.  No relevant medication was prescribed by Dr S prior to 22 June 2019.  
    4. Allopurinol was dispensed on six occasions.  Diprosone was dispensed on one occasion.  Anora Ellipta was also dispensed on one occasion.  All are attributed to prescriptions from Dr S.  None of those medications were ever prescribed by Dr S.  

The copies of repeat prescriptions produced by Ms B 

  1. [164]
    It will be recalled that Ms B was the manager of the M Pharmacy.  Together with staff she “went right back through all of the dates of dispensing for the medications in the  patient history for [Mr Amurao]”.[72] She annexes a number of repeat prescriptions discovered.  She also cross-checked entries against till receipts so as to establish that Mr Amurao paid for the listed medications.  
  1. [165]
    Ms B gives the following evidence in her statement which I consider to be cogent and important:[73]

… when the dispensing was done from the original prescription, we would absolutely have a copy of the original prescription kept in the pharmacy.  In between the original dispensing and the final dispensing, if there are repeats, we would only have a copy of the repeat authorisation and on the final dispensing we would then have a copy of the original again, which was attached to the repeats.  So, on dispensing one and six, you would expect that the pharmacy would have an original for a prescription that has five repeats.  The other four would only have the yellow repeat authorisation.  

[…]

It is possible to generate a repeat authorisation without an original prescription.  It isn’t a legal thing to do.  But, yes, a pharmacist could go into a dispensing system and type in a patient’s name, type in the drug, put in the doctor’s code and say that there were five repeats on that script and dispense it.  That would give me a repeat authorisation.  But there wouldn’t be any original prescription to attach the repeat authorisation to.  So, if the repeat authorisation was presented to a different pharmacy or technically the same pharmacy, we couldn’t dispense off the yellow repeat authorisation without it being attached to the original doctor’s prescription.  There is no way of interrogating the dispensing data base to see whether the repeat authorisation was generated by itself or from an original prescription.

  1. [166]
    Mr Amurao did not challenge the correctness of the statements just quoted.  In the 14 March hearing, he accepted it was possible to generate repeat prescriptions in the manner described by Ms B.[74]
  2. [167]
    Ms B annexed to her statement copies of 5 repeat scripts.  Three copies relate to Simvastatin.  The repeat scripts indicate on their face that the original script was issued by Dr S on 8 October 2019 and that five repeats were authorised.  The exhibited copies purport to represent the first three dispensings.  The remaining two copies of repeat scripts produced by Ms B were for Trusopt Eye Drops.  They bear the same name, address and Medicare number details as the Simvastatin scripts.
  3. [168]
    In respect of those five purported repeat scripts:
    1. No original was ever located by Ms B despite an extensive search by her and her staff.
    2. No prescription for Simvastatin – or any medication – was issued by Dr S on 8 October.
    3. No consultation with Mr Amurao Senior occurred on 8 October.[75]
    4. Mr Amurao Senior had returned to the Philippines to live prior to 8 October.
    5. All repeat scripts note Mr Amurao as the patient and contain his address and Medicare number but Mr Amurao was never Dr S’s patient.
    6. No prescription for Trusopt was ever issued by Dr S on 18 June.
    7. No consultation with Mr Amurao occurred on 18 June.
  4. [169]
    At the 14 March hearing, Mr Amurao was asked directly if he had created the copy scripts in the manner described by Ms B he said, “I don’t think I would do that”.[76]
  5. [170]
    Contrary to that assertion, in my opinion an inference arises that the repeat scripts were prepared and actioned by Mr Amurao in the manner described by Ms B.  I consider the matters to which I have just made reference “positively suggests or provides a reason in the circumstances particular to the case …” for the creation of the scripts.  I do not consider there are “… conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture.[77]

Mr Amurao’s explanations

  1. [171]
    Mr Amurao offers various explanations for the anomalies earlier referred to.  Many are conflated with, or are in essence the by-products of, his fundamental contention that he is not “EA” and thus it was not him who dispensed the medications or caused them to be dispensed.  Once that assertion falls away, there is a consequent impact upon his explanations. 
  2. [172]
    Mr Amurao says that the absence of prescriptions for some of the medications dispensed and attributed to Dr S’s prescriptions is explained by Dr S having issued handwritten prescriptions. 
  3. [173]
    The first difficulty which that explanation confronts is that there is no record of any handwritten prescriptions having been issued by Dr S.  If the explanation is to hold, Dr S would need to have himself acted unlawfully by not recording the prescription in his medical records.[78] There is no suggestion Dr S would do that.  No such proposition was put to Dr S by Mr Amurao.  Mr Amurao has admitted the accuracy of the records. 
  4. [174]
    The second difficulty which that explanation confronts is Dr S’s evidence that he never issues handwritten scripts.  I accept that evidence.  Dr S’s oral evidence and clinical records make clear that prescriptions were issued on only one relevant date, 22 June 2019.  I accept Dr S’s evidence and the accuracy of his clinical records (which, in any event was not challenged).  Mr Amurao’s explanation is rejected. 
  5. [175]
    A second explanation offered by Mr Amurao is that the drugs were prescribed by the hospital upon Mr Amurao Senior’s discharge after undergoing a procedure.  No original or repeat prescription issued by the hospital has been produced or discovered. 
  1. [176]
    Mr Amurao was unable to specify with any particularity what prescriptions can be attributed to the hospital. 
  1. [176]
    As Mr Amurao accepted at the 14 March hearing, any prescription issued by the hospital is required to name a medical practitioner within it and it is that name which should appear in the Patient History.  Mr Amurao’s explanation as to how Dr S’s name appears as the prescribing doctor rather than the relevant doctor at the hospital is that the computer system generating the Patient History must have “automatically populated” Dr S’s name.  Even were that true (which I doubt), the explanation ignores the fact that EA – i.e. Mr Amurao – either entered the data or was responsible for the accuracy of the data entries of others (including any alleged computer errors).  Additionally, the number and frequency of the medications; the fact medications never prescribed by Dr S are included; and the existence of copies of repeat authorisations not attributable to any original prescription issued by Dr S, all count against any such explanation being true. 
  2. [177]
    Mr Amurao would again appear to rely upon error by dispensing technicians to explain how medications are attributed to Dr S when no relevant prescription matches the attribution.  I repeat the findings earlier made in that respect.  The coincidence between asserted errors and the number of times medications were attributed to Dr S for which there was neither a prescription nor consultation with Mr Amurao Senior renders the assertion implausible.  So, too, it once again ignores the fact that it was Mr Amurao (“EA”) who was responsible for the correct data being recorded. 

Mr Amurao’s assertion that Dr S confused him with his father

  1. [178]
    The copy prescriptions provided to Ahpra by Dr S showed “Ed” as a “nickname” or preferred name for Mr Amurao Senior.  However, the originals of those prescriptions as issued to Mr Amurao Senior and dispensed, did not contain that nickname.  
  2. [179]
    Dr S explained in evidence that the preferred name is the name recorded in his records  which appears on his computer when he sees a patient.  It is what his clinic was told is a preferred name when the clinic record is created.  The nickname or preferred name also appears on Dr S’s screen when a prescription is created on screen.  However, in order to ensure compliance with relevant regulatory requirements, when the original script is printed and presented to the patient for subsequent dispensing, the patient’s nickname does not appear.  I accept Dr S’s explanation.
  3. [180]
    Mr Amurao suggests the appearance of “Ed” on the copy scripts suggests Dr S has confused his father with him.  They each have the same forename and surname, however, Mr Amurao says, it is only him who is referred to as “Ed”.  He annexes a copy of social media profiles in support of that contention.  They may support the contention that he is known as Ed, but they do not assist in establishing that his father was not known by that nickname.
  4. [181]
    In a statement to Ahpra on 3 November 2021, Mr Amurao refers to his father never using that nickname.  However, on Mr Amurao’s own case, he was not privy to what was said when Mr Amurao Senior was accepted as a patient by Dr S’s practice or at any consultation with Dr S.  Mr Amurao’s sister was responsible for assisting Mr Amurao Senior (who apparently speaks little English) in the interactions with Dr S.  She was not a witness in Mr Amurao’s case.
  5. [182]
    In any event, I am unable to see how Mr Amurao’s assertions in this respect assist his case.  The central difficulty he faces as a result of what is established by the Board is not in respect of any prescriptions issued by Dr S.  Rather, his central difficulty is that medications were dispensed to him for use by his father without any prescription for the same from Dr S.
  1. [183]
    I find that the medicines listed in Schedule B of the referral attributable to prescriptions by Dr S were dispensed by Mr Amurao and not dispensed pursuant to valid prescriptions by Dr S.  

GROUND 6 – FALSE OR MISLEADING INFORMATION

  1. [184]
    The Board’s case in respect of this ground as particularised asserts false or misleading statements in submissions made to Ahpra or the Board in five different respects:
    1. Asserting in a statutory declaration that the dispensing history at the M Pharmacy was not his but rather his fathers.
    2. Asserting in a statutory declaration that all bar one of the medications listed in that dispensing history was dispensed pursuant to lawful prescriptions.
    3. Asserting that prescriptions issued by Dr S confused him with his father.
    4. Asserting that “when I obtained medications for my father I would routinely leave prescriptions in the queue to be dispensed by others and then pick them up for them when convenient”.
    5. Denying that EA was him and asserting he dispensed medications at the P Pharmacy under the initials ED.
  2. [185]
    The findings earlier made clearly inform each of these allegations.  All are established. 

This ground is proved. 

CATEGORISATION OF THE CONDUCT

How is it alleged the conduct falls below the statutory standards?

  1. [186]
    In each of grounds 1 to 3, it is pleaded that the conduct is “inconsistent with” the relevant Code of Conduct and Code of Ethics.[79] To similar effect, in the Board’s final written submissions it is said:[80]

[a]ssuming that the particulars of fact in each Ground are proven by the Board, the Tribunal will next need to consider if the conduct represents a breach of the professional codes that apply to [Mr Amurao].

  1. [187]
    Both of those assertions appear to suggest that if conduct can be seen to have “breached” the applicable Codes then, by reason of that fact alone, the proven conduct falls below the relevant statutory standards.  If that be the meaning, I respectfully disagree.
  2. [188]
    I hold to these views which I expressed in an earlier case involving a doctor:[81]

Section 41 of the National Law accords to codes or guidelines the status of evidence in relevant disciplinary proceedings.  In doing so, the legislation makes clear what, in the absence of legislative provision, might otherwise be the subject of uncertainty or argument.  The “wide-

ranging consultation” required prior to formulation and promulgation of the codes required by s 41 of the National Law suggests the contents of professional codes or guidelines can be a valuable piece of evidence in assessing whether specific conduct falls below the prescribed s 5 standards.

However, the legislation neither accords that evidence particular weight or importance nor makes any finding of “breach” of a code or guideline a pre-condition for meeting the statutory definitions.  The legislation includes eight forms of conduct, including specified transgressions and contraventions, as included within the definition of “unprofessional conduct”.  Contravention or “breach” of the codes or guidelines is not included.  Nor indeed are professional codes or guidelines mentioned at all. 

Indeed, it is doubtful whether it is correct to refer to the codes being “breached” at all – at least in so far as that word connotes a prescribed standard, non-adherence to which is productive of related outcomes …  

  1. [189]
    The fact the Guidelines might apply to specific forms of conduct in a particular profession is, of course, a significant piece of evidence relating to misconduct framed upon conduct contrary to that specific guideline.
  2. [190]
    I have taken account of the broadly expressed and general provisions of the Codes and, in particular, those specific items contained within the Board’s final written submissions.
  1. Grounds 1 to 3:  professional misconduct under subparagraphs (a) or (b)? 
  1. [191]
    There is a distinction between professional misconduct classified as such under subparagraphs (a) and (b) of the definition and that classified under subparagraph (c).  The former requires an antecedent finding that the conduct amounts to unprofessional conduct as defined.  A finding of unprofessional conduct depends in turn upon satisfaction that the conduct is (a) “professional conduct” and (b) falls below the standard there specified. 
  2. [192]
    Satisfaction of subparagraph (c) of the definition of professional misconduct requires no such antecedent finding.  The subparagraph makes clear in terms that it applies to conduct “whether occurring in connection with the practice of the health practitioner’s profession or not”. 
  3. [193]
    The expression ‘professional conduct’ is used within a defined term.  It must receive its ordinary meaning seen in the broader context of the Act.  An important part of that context as it seems to me is the distinction just referred to.  Professional conduct is potentially embraced by the definition; private conduct – conduct not associated with the practice of the health practitioner’s profession – is not.  Private conduct can, however, be caught by subparagraph (c) of the definition. 
  4. [194]
    That is not to suggest a narrow interpretation of conduct which has a connection with the practice of the health practitioner’s profession.  The phrase occurs in a broader context.  The “protection of the public … and public confidence in the safety of services provided by registered health practitioners …” are the primary guiding principles of the scheme of registration, monitoring and sanction the National Law creates.  But, in my opinion, satisfaction of subparagraphs (a) or (b) of the definition is dependent upon satisfying that nexus.
  5. [195]
    In A Solicitor v Council of the Law Society of New South Wales[82] the High Court said:

The dividing line between personal misconduct and professional misconduct is often unclear.  Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct.  Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise. [Citations omitted] 

  1. [196]
    Their Honours went on to quote from the judgment of Kitto J in the earlier decision of Ziems v The Prothonotary of the Supreme Court of NSW:[83]

A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails.  But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.

  1. [197]
    Chief Justice Spigelman in New South Wales Bar Association v Cummins[84] said:

There is authority in favour of extending the terminology ‘professional misconduct’ to acts not occurring directly in the course of professional practice.  That is not to say that any form of personal conduct may be regarded as professional misconduct.  The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way.  First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice.  Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of parties.  In this second case, the terminology of ‘professional misconduct’ overlaps with and, usually it is not necessary to distinguish it from, the terminology of ‘good fame and character’ or ‘fit and proper person’.

  1. [198]
    The distinction there drawn by his Honour can in my opinion be seen reflected in the distinction between the conduct embraced by subparagraphs (a) and (b) of the definition of professional misconduct and that embraced by subparagraph (c).
  2. [199]
    I am conscious that decisions of this and other tribunals have found that convictions for offences, including for example, family violence offences can result in findings of professional misconduct.  That is, convictions in respect of conduct which might be categorised as “private” – in the sense of not being directly connected to the practice of the particular profession – has sustained misconduct findings.  
  3. [200]
    Notably, the examples of unprofessional conduct included within the definition include “conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession”.  In that context, the decisions of this and other tribunals have referred to wider  ramifications for the integrity of the profession and the public’s perception of it in reaching conclusions that relevant convictions (which are, all else being equal, matters of public record) meet the definition.
  1. [201]
    Mr Amurao has not been convicted of any offence under any Act, or indeed, charged with any offence under any Act.  It is not suggested that the conduct was directed toward any member of the public or impinged upon them in any way.  The conduct can be described accurately as inappropriate, or offensive, or distasteful, or crass, but any such descriptors do not assist in meeting the statutory definitions.  However inappropriate, crass and juvenile the conduct, it was conduct directed to matters outside of the practice of his profession, in effect his private life.  The conduct seen as a whole has a nexus with the practice of the profession of pharmacy only in so far as the conduct occurred in or about a pharmacy.  
  2. [202]
    In my opinion, the proved conduct in grounds 1 to 3 is not “professional conduct” within the meaning of that term in the definition of “unprofessional conduct”.  It is “not sufficiently connected with actual practice” as a pharmacist.  Because it is not unprofessional conduct, it cannot be professional misconduct as defined in subparagraphs (a) or (b) of the definition of that latter term.

Grounds 4 - 6: professional misconduct under subparagraphs (a) or (b)?

  1. [203]
    I have taken account of the obligations contained in the Dispensing Guidelines referred to by the Board in its final written submissions.  They provide evidence of appropriate conduct. 
  2. [204]
    The findings made in respect of each of grounds 4 and 5 are plainly integrally connected to the practice of the pharmacy profession.  The conduct strikes directly at the heart of the trust reposed in pharmacists by the regulatory framework which permits them to supply medications to the public and, hence, the trust reposed in pharmacists by the public.
  3. [205]
    It can be accepted that the law requires particular substances to be provided on prescription both to ensure that medications are suitable for the therapeutic purpose for which they are prescribed by a health practitioner, and in a dosage and application suitable to that therapeutic need.[85]
  4. [206]
    Supplying medications without a prescription, including attributing prescriptions to doctors when no such prescriptions have issued is a very serious abdication of a pharmacist’s responsibilities.  The conduct occurred at three different pharmacies over an extended period of time. 
  5. [207]
    It is true that the relevant medications here are common medications for common ailments in the community; they are not drugs of addiction or substances which can be used in the manufacture of the same.  It is also true that the medications were obtained on behalf of Mr Amurao’s father for his use and the same medications in the Philippines (where Mr Amurao Senior lives) were markedly more expensive and sometimes unavailable.  Not only do neither of those matters excuse the conduct or ameliorate the responsibilities and regulatory requirements referred to, they render the conduct planned and deliberate and all the more serious as a result.
  6. [208]
    There can be no doubt that full and frank co-operation with investigating bodies is integral to the practice of a pharmacist.  It is integral to maintaining standards in the profession and, thus, the health and safety of the public.  Providing false or misleading information to those investigating authorities is a very serious matter.      
  7. [209]
    I find that the conduct proved in respect of grounds 4 to 6 is professional conduct that is of a lesser standard than that which might reasonably be expected of a pharmacist by the public or the pharmacist’s professional peers.  Consequently, I find the conduct in each of grounds 4, 5 and 6 is unprofessional conduct as defined.  
  8. [210]
    The matters earlier referred to mark the unprofessional conduct in each ground as of a seriousness and persistence that sees it as falling substantially below[86] the standard reasonably expected of a pharmacist of an equivalent level of training or experience.  I find the proven conduct in respect of each of those grounds is professional misconduct as defined.

Totality of the conduct: professional misconduct under subparagraphs (a) or (b)?

  1. [211]
    Leaving aside issues arising from the use of the “bastard conjunction” earlier referred to,[87] it is now clear that the Board pleads that the totality of the proved conduct in all grounds is, when “taken together”, professional misconduct within the meaning of subparagraphs (a) or (b) of the definition of professional misconduct.
  2. [212]
    The reasons earlier given in respect of grounds 1 to 3 apply equally so as to reject that contention.  A finding pursuant to subparagraph (b) requires an antecedent finding that the “more than one instance” of conduct being considered is each “unprofessional conduct”.  Having found that grounds 1 to 3 do not constitute unprofessional conduct, no such finding can be made.  If the totality of the conduct is to be the subject of subparagraph (a), the conduct together must be “unprofessional conduct”.  It would be anomalous if that finding could be made in respect of the totality of the conduct if more than half of the total conduct has been judged to not be unprofessional conduct. 
  1. Totality of the conduct: professional misconduct under subparagraph (c)?
  1. [213]
    The Board contends in the alternative that, when taken together, the conduct amounts to professional misconduct by reference to subparagraph (c) of the definition. 
  2. [214]
    Considerations different to those just addressed apply to that question by reason of the fact that subparagraph (c) of the definition applies to conduct “whether occurring in connection with the practice of the [pharmacy] profession or not”.

Fit and proper person

  1. [215]
    The inquiry required by subparagraph (c) of the definition of professional misconduct is not directed to a moral judgment of Mr Amurao as a person or to all of the foibles and failings that he, like all of us, possesses.  As Kirby P said in McBride v Walton:[88]

It is not the function of professional disciplinary bodies to assume wider obligations or the duties of punishing a practitioner.  Their sole function is to

protect the public in the context in which they have legitimacy and expertise, namely professional practice.

  1. [216]
    Subparagraph (c) of the definition in effect gives voice to that distinction.  It requires an assessment of whether proven conduct is “is inconsistent with the practitioner being a fit and proper person to hold registration [as a pharmacist]”.  Whether that definition is met is to be determined at the date of the hearing.  But that does not render irrelevant conduct occurring at earlier times.  Such conduct “may be informative as to his character”.[89]Equally, the period of time between the conduct and the hearing may provide valuable evidence of insight and positive change. 
  2. [217]
    The term “fit and proper person” is not defined.  Dixon CJ said in Re Davis[90] – in reference to legislation and a test different to the present – good character is “the test of ethical fitness” that requires “enduring moral qualities”.[91] In Nursing and Midwifery Board v Seijbel-Chocmingkwan,[92] the Tribunal agreed with the joint submission of the parties that the relevant conduct met subparagraph (c) of the definition because “the conduct is incompatible with the characteristics, attributes, and ethical standards required in such profession”.[93] That statement was adopted in Health Ombudsman v Field.[94]

Should the two categories of conduct be considered together?

  1. [218]
    The conduct the subject of grounds 4 and 5 (and 6) is of course quite different in nature from that founding grounds 1 to 3.  In my opinion that is not an impediment to the conduct the subject of all six grounds being considered together.  The focus of subparagraphs (a) and (b) of the definition of professional conduct (and the findings antecedent to their application) is the nature, classification and extent of proven conduct.  The focus of subparagraph (c) of the definition is what proven conduct establishes about the suitability of the person perpetrating it to be member of the relevant profession.  
  2. [219]
    The subparagraph’s express reference to conduct “whether occurring in connection with the practice of the [pharmacy] profession or not” embraces the notion of different forms of proven conduct being considered in determining if the conduct is “incompatible with the characteristics, attributes, and ethical standards”[95] required of a pharmacist.
  3. [220]
    In addition here, the conduct in grounds 1 to 3 occurred effectively simultaneously with the conduct in grounds 4 and 5; all occurred within a short time and was repeated at more than one place of employment.  I consider it important, and troubling, that all of the conduct proved in this case in respect of grounds 1 to 5 occurred within a nineteen-month time frame and occurred shortly after the expiration of a supervision period imposed upon Mr Amurao’s registration as a pharmacist when he came to Australia.  (The supervision period was not required because of misconduct of any sort). 
  4. [221]
    All of the five women to whom conduct was directed were young.  Mr Amurao was a man in his late 40s.  They were fellow employees.  In at least one case, the pharmacy was situated in a relatively remote place.  The conduct with three women at two different pharmacies in Queensland occurred very shortly after two women to whom similar behaviour in New South Wales had been directed at the P Pharmacy had made it clear to Mr Amurao that conduct of a not dissimilar type was unwanted.  
  5. [222]
    Mr Amurao signed a document prior to his employment at the M Pharmacy which made clear that the conduct he later engaged in was not acceptable in an employment context. Similar unwanted behaviour was repeated in new environments when it was repeatedly eschewed by similarly aged young women in effectively identical earlier environments.  
  6. [223]
    The repetition of behaviour of the type proved within a short time frame in three employment situations suggests strongly, at the very least, an unwillingness to adapt behaviours to suit prevailing social norms.  It suggests underlying attitudinal traits that have not benefitted from adverse feedback.  There was an opportunity to gain insight and alter behaviours between the earlier and later working environments which was not availed.  To my mind, that factor illuminates the apologies offered in evidence; those apologies did not appear to me insincere so much as lacking, still, empathy and insight.
  7. [224]
    By its nature, retail pharmacy is likely to expose Mr Amurao to working environments in the future identical or similar to those in which the proved conduct occurred.  There is no persuasive evidence that Mr Amurao has altered or adapted his behaviour toward young women employees as he has moved from one pharmacy to the next.  Of course, he has not been able to work in the more than four years since an immediate action order was made but an apparent inability to comprehend the impact his conduct has had was evident in the proceedings and dampens any optimism at the present time. 
  8. [225]
    Mr Amurao relies heavily upon a statement from a previous fellow employee at one of the pharmacies whom he mentored and who speaks very highly of his interactions with her and the positive effect he has had on her pursuing a career in pharmacy.  The statement is unsworn, and the woman was not called as a witness in his case and therefore not cross-examined.  Whatever effect those factors may have upon her evidence, I consider the more important point to be that even if the evidence is accepted in its entirety, an entirely positive relationship with one person does not diminish the reliability and veracity of the account of five different young women at three different pharmacies within a relatively short time frame.  Nor does it detract from the inappropriateness of the conduct.
  9. [226]
    Mr Amurao engaged in conduct that he knew to be improper so as to obtain medications for his father which are, apparently markedly more expensive or unavailable in the Philippines where his father lives.  There were, on my findings, breaches of fundamental ethical obligations central to the pharmacy profession.  It is true that no drugs of addiction or of street value were involved and it is also true that there was apparently no attempt by Mr Amurao to enrich himself or otherwise profit from his actions. 
  10. [227]
    However, there was planned and deliberate conduct designed to avoid the very obligations cast upon the profession which are central to the trust reposed in pharmacists to dispense otherwise restricted substances.  Simply, for Mr Amurao, the end would seem to have justified the means.
  11. [228]
    The proven actions are not explicable by inexperience or a one-off lapse of judgment.  My findings in respect of prescriptions obtained from Dr F involved subterfuge and active participation in something he knew to be unlawful.  My conclusion that Mr Amurao has himself created repeat prescriptions, an action only lawfully available to (relevantly) medical practitioners is particularly serious.  None of the actions was a response to an emergency situation confronting his father.
  12. [229]
    It is true that Mr Amurao apologised, in a fashion, as earlier described, but there was no indication that he considered his conduct was inappropriate.  His apologies were qualified (if I offended you) but the intervening years have not resulted in any apparent focus on how his conduct had impacted five separate women.  Rather, there was surprise and upset that behaviour he considered appropriate – and apparently still considered appropriate – was the cause of upset or distress. 
  13. [230]
    In respect of the dispensing of medications, Mr Amurao continued to maintain explanations that were patently at odds with reliable documentary evidence and the evidence of each of two doctors.  Mr Amurao is an intelligent, educated man.  He was in my view well aware that he was offering explanations that were implausible to explain conscious wrongdoing.
  14. [231]
    The conduct the subject of ground 6 speaks for itself.  Members of any profession, including pharmacists, should perceive that regulatory bodies have an important role to play in the upholding of proper standards for their profession.  Honesty and cooperative dealings with those bodies are in turn central to the qualities expected of members of the profession.
  15. [232]
    I consider that all conduct proven against Mr Amurao across all six grounds should be assessed together in determining if subparagraph (c) of the definition of professional conduct is established.
  16. [233]
    A consideration of that conduct leads to the conclusion that the conduct proved against Mr Amurao, and the apparent lack, currently, of genuine remorse, reflection and insight, is inconsistent with him being a fit and proper person to hold registration as a pharmacist. 

What sanctions are appropriate?

  1. [234]
    I respectfully agree with what was said by Deputy-President Horneman-Wren in Medical Board of Australia v Wong:[96]

If the Tribunal were to find professional misconduct on that basis [i.e. fit and proper person] then the cancellation of his registration would be almost inevitable.  Not cancelling a practitioner’s registration would seem inconsistent with having found his or her conduct to be inconsistent with him or her being a fit and proper person to hold registration.  This may be contrasted with cases in which there is a finding of professional misconduct on some basis, and the question then arises whether the practitioner is a fit and proper to be or remain registered.

  1. [235]
    I have considered whether the six-month disqualification period sought by the Board (or any alternative disqualification period) should be imposed.
  2. [236]
    Mr Amurao has not worked as a pharmacist for over four years since the imposition of an immediate action order imposed on 12 January 2021.  The delays which seem inherent in having a matter heard and determined by the Tribunal apply to this case.  The Board has independent statutory duties exercisable upon any such application.  These orders and reasons will be available to it.  The time out of practice may well require further education requirements or other conditions.  Any re-registration process engaged by Mr Amurao is highly likely to involve its own significant delays.
  3. [237]
    I can see no reason to add any additional time restriction to Mr Amurao applying for registration.  

Orders

  1. [238]
    The Tribunal will order as follows:
  1. 1.
    Pursuant to s 196(1)(b)(iii) of the National Law, the conduct of Edgardo Amurao as alleged in grounds 1 to 6 of the referral constitutes, when taken together, professional misconduct pursuant to subparagraph (c) of the definition of that term in s 5 of the National Law.
  1. 2.
    Pursuant to s 196(2)(a) of the National Law, Edgardo Amurao is reprimanded.
  1. 3.
    Pursuant to s 196(2)(e) of the National Law, Edgardo Amurao’s registration is cancelled.
  1. 4.
    There be no order for costs.

Postscript: the hearing book(s)

  1. [239]
    The “hearing book” in this case consisted of three volumes and well over a thousand pages.  Providing sufficient copies for the Tribunal file and each of the Tribunal members involved producing and distributing more than 5000 pages.
  2. [240]
    I wish to respectfully add my voice (and the voices of the members of this panel) to what was said by Judicial Member McGill SC in each of Medical Board of Australia v TXA (No 2) (‘TXA’)[97] and LCK v Health Ombudsman (No 2).[98]
  3. [241]
    In the later decision of TXA, the Judicial Member made the point strongly that the hearing book should be confined to ‘relevant documents only’.[99]
  4. [242]
    Relevant documents are those which are essential to the Tribunal reaching its decision.  Documents essential to the Tribunal reaching its decision require the issues for determination to be identified with precision – a matter that requires analysis and careful thought.  Documents irrelevant to the Tribunal’s task should not be in the hearing book.
  5. [243]
    Far too often – indeed it seems ubiquitously – hearing books contain a documentary blow-by-blow account of the relevant investigation, including correspondence and emails that have no evidentiary value and bear no relationship to the issues the Tribunal is charged with deciding.  Each Tribunal member’s task is made markedly harder by having to wade through material wholly irrelevant to the task at hand. 
  6. [244]
    It can be accepted that thoroughness and a significant amount of hard work has been brought to bear in bringing a matter to hearing before the Tribunal.  However, neither is shown by cluttering the hearing book with hundreds upon hundreds of pages of irrelevancies.  Indeed, the opposite is true.  
  7. [245]
    All parties involved in proceedings, and it might be thought institutional parties in particular, should bear in mind that the Tribunal is statutorily obliged to “ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice”.[100] In this case, someone somewhere had to pay for nearly 6000 pages to be copied, collated and distributed.   
  8. [246]
    My comments are endorsed by each of the members of this particular panel (who each have experience of sitting in many other cases) and, I am authorised to say, are also shared by other Judicial Members hearing health disciplinary matters.

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Footnotes

[1] Health Practitioner Regulation National Law (Queensland) s 156 (‘National Law’).

[2]  Ibid s 196.

[3]  Ibid s 5.

[4]  Ibid.

[5]  The term “pleading” and its derivations are used as convenient descriptors.

[6]  [2010] QSC 480 [11]-[14].

[7] Looke v Parbury Henty & Co Pty Ltd [1950] VLR 94, 98 (Barry J) cited in Re Moage Limited [1998] FCA 296; (1998) 153 ALR 711 (Burchett J) (‘Re Moage’); see also R v Davison [2022] QCA 22 [16] and the cases cited therein. (The conjunction has been called the “bastard conjunction” in Bonitto v Fuerst Bros & Co Limited [1944] AC 75 (Viscount Simon LC)).

[8] Re Moage (n 7) 716-717 (Burchett J).

[9]  See [15] above.

[10] Re Moage (n 7) 716-717 (Burchett J).

[11]  Application or referral – disciplinary proceedings filed in the Tribunal by the applicant on 30

September 2024, Annexure B, ground 1, particulars, subparagraphs (v) and (vi) respectively

(‘Referral’).

[12]  Ibid ground 2, particulars, subparagraphs (iii) A and B respectively.

[13]  Ibid, ground 3, particulars, subparagraph (iv) A and B respectively.

[14]  Transcript of proceedings on 14 March 2025, p 3-7 [29]-[47] (’14 March transcript’).

[15]  Specifically in respect of the matters raised at the 14 March hearing, see ibid p 3-8 [1]-[36].

[16]  Written submissions filed in the Tribunal by the respondent on 28 January 2025 p 1 (‘Respondent’s

final written submissions’).

[17]  Transcript of proceedings on 9 October 2024, p 1-54 [28]-[33] (‘9 October transcript’).

[18]  Respondent’s final written submissions (n 16) p 2.

[19]  Ibid p 3.

[20]  See, eg, 9 October transcript (n 17) p 1-110 [21]-[30].

[21]  Respondent’s final written submissions (n 16) p 3.

[22]  9 October transcript (n 17) p 1-110 [39], p 1-111 [36].

[23]  The rules of evidence do not apply to these proceedings: Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(b) (‘QCAT Act’).

[24]  Statement, Ms JS, 26 August 2021 [6] (‘Statement of Ms JS’) contained in the Hearing Brief filed in the Tribunal on 8 July 2024 p 825 (‘HB’).

[25]  Referral (n 11) ground 2, subparagraph (ii)(A).

[26]  Ibid subparagraph (ii)(B).

[27]  Ibid subparagraphs (ii)(C)(i)(I)-(IV).

[28]  Ibid subparagraphs (ii)(D)(I)-(III).

[29]  Ibid subparagraphs (iii)(A), (B).

[30]  Ibid subparagraphs (iv)(A) to (E).

[31]  Ibid subparagraph (iv)(F).

[32]  9 October transcript (n 17) p 1-93 [4].

[33]  Referral (n 11) ground 2, subparagraph (ii)(C)(II)

[34]  Ibid subparagraphs (iii)(A), (B).

[35]  Ibid subparagraphs (ii)(C)(III).

[36]  9 October transcript (n 17) p 1-96 [22]-[32].

[37]  Ibid p 1-97 [41]-[47].

[38]  Ibid p 1-83 [12]-[10].

[39]  Statement of Ms JS (n 24) [35].

[40]  Statement, Mr Amurao, 22 September 2021 p 3 (‘Statement of Mr Amurao’) contained in the HB (n

24), p 600.

[41]  Statement of Ms JS (n 24) annexed screenshot.

[42]  Statement of Mr Amurao (n 40) p 4.

[43]  Ibid.

[44]  Statement of Ms JS (n 24) [42].

[45]  Referral (n 11) ground 3, subparagraphs (iv)(A)-(C).

[46]  Ibid subparagraphs (a)-(e). (Not to be confused with the allegations in the first two subparagraphs (a) and (b) in ground 3).

[47]  Statement of Mr Amurao (n 40) p 3.

[48]  Ibid.

[49]  14 March transcript (n 14) p 3-40 [11], p 3-41 [11].

[50]  Statement of Mr Amurao (n 40) p 3.

[51]  In the Referral (n 11), subparagraphs (A)(I)-(III) and (B) are treated as separate allegations of specific conduct and subparagraphs (C)-(E) are treated as an allegation of one instance of conduct

[52]  Statement of Mr Amurao (n 40) p 2.

[53]  9 October transcript (n 17) pp 1-78, 1-79.

[54]  The documents record the dispensing of medications on 69 occasions; 25 at the P Pharmacy and 44 at the M Pharmacy.

[55]  Statement of Mr Amurao (n 40) p 5.

[56]  The only exception are two employees who had identical first letters for their forename and surname. In that case, a close approximation of those initials were used.

[57]  Statement, Ms B, 15 February 2022 [27] (‘Statement of Ms B’) contained in HB (n 24) p 905.

[58]  Ibid.

[59]  The Patient History contained handwritten notations which Ms B explained were correlations with the till receipts she produced. That explanation is accepted.

[60]  Statement of Mr Amurao (n 40) p 5; Statement, Mr Amurao, 3 November 2021 p 4 contained in the HB (n 24), p 687.

[61]  Transcript of proceedings on 10 October 2024, p 2-55 [14]-[20]

[62]  14 March transcript (n 14) p 3-12 [35]ff. (The Board also accepted this proposition).

[63]  Statement, Dr F, 3 February 2022 (‘Statement of Dr F’) contained in HB (n 24) p 869.

[64]  Ibid [7].

[65]  Ibid [17], [18].

[66]  Statement, Mr Amurao, 6 May 2022 p 7 contained in the HB (n 24), p 747.

[67]  QCAT Act (n 23) ss 28(3)(c), (e), 98(1)(c).

[68]  The Board withdrew allegations in respect of the dispensing of Metoprolol and Telmisartan (Micardis) on 7.6.19 and also Simbrinza on 17.6.19. Sodibic (11.6.19) and B Mega B (18.6.19) are excluded because, despite being attributed to a prescription from Dr F, neither requires a prescription

[69]  The allegation with respect to dispensing Simbrinza on 17 July 2019 at the P Pharmacy is withdrawn. Allegations relating to the prescription of that medication at the M Pharmacy on 5 October 2019 and 9 October 2019 are also withdrawn.

 

[70]  Statement, Dr S, 3 February 2022 [3] contained in the HB (n 24) p 851.

[71]  They relate to medications not referred to in the Patient History or the Referral grounds.

[72]  Statement of Ms B (n 57) [32].

[73]  Ibid [31], [34] respectively.

[74]  14 March transcript (n 14) p 3-33 [25], p 3-34 [14].

[75]  In the hearing of 14 March 2025, Mr Amurao was not prepared to accept this (although he did not deny it). However, on the first day of the initial hearing he said in evidence his father had returned in August or September: 9 October transcript (n 17) p 1-136 [5]-[10].

[76]  14 March transcript (n 14) p 3-37 [36].

[77]  Re Day [2017] HCA 2; 340 ALR 368 [18] (Gordon J) (citations omitted); see also, Trustees of the Property of Cummins v Cummins [2006] HCA 6; 227 CLR 278, 292.

[78] Poisons and Therapeutic Goods Regulation 2008 (NSW) reg 38.

[79]  Referral (n 11), Annexure B, pp 4, 7 and 10 respectively.

[80]  Written submissions filed by the Board in the Tribunal on 13 December 2024 [346].

[81] Health Ombudsman v Kumar [2024] QCAT 132.

[82]  [2004] HCA 1; 216 CLR 253 [20].

[83]  (1957) 97 CLR 279, 298.

[84]  [2001] NSWCA 284 [56].

[85]  See, eg, the current requirements in reg 81 of the Medicine and Poisons (Medicines) Regulation 2021 (Qld).

[86]  As to which, see, eg, Fittock v Legal Profession Conduct Commission (No 2) [2015] SASFC 167 [110].

[87]  See n 7.

[88]  [1994] NSWCA 199.

[89] Re Davis (1947) 47 CLR 409 (Latham CJ) cited with approval in McBride v Walton [1994] NSWCA 199 (Handley J); see also Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82.

[90]  (1947) 47 CLR 409.

[91]  Ibid 420.

[92]  [2015] QCAT 283 (‘Seijbel-Chocmingkwan’).

[93]  Ibid [8].

[94]  [2019] QCAT 243 [31].

[95] Seijbel-Chocmingkwan (n 92).

[96]  [2015] QCAT 439 [84].

[97]  [2023] QCAT 115 (‘TXA’).

[98]  [2020] QCAT 460.

[99] TXA (n 97) [32].

[100]  QCAT Act (n 23) s 4.

Close

Editorial Notes

  • Published Case Name:

    Pharmacy Board of Australia v Amurao

  • Shortened Case Name:

    Pharmacy Board of Australia v Amurao

  • MNC:

    [2025] QCAT 100

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Murphy SC

  • Date:

    15 Apr 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1
2 citations
Jump To
Cite 1 - [2004] HCA 1
Cite 2 - [2004] HCA 1
Bonitto v Fuerst Bros & Co Ltd [1944] AC 75
2 citations
Jump To
Cite 1 - [1944] AC 75
Cite 2 - [1944] AC 75
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASFC 167
2 citations
Jump To
Cite 1 - [2015] SASFC 167
Cite 2 - [2015] SASFC 167
Health Ombudsman v Field [2019] QCAT 243
1 citation
Jump To
Cite 1 - [2019] QCAT 243
Health Ombudsman v Kumar [2024] QCAT 132
2 citations
Jump To
Cite 1 - [2024] QCAT 132
Cite 2 - [2024] QCAT 132
LCK v Health Ombudsman (No 2) [2020] QCAT 460
2 citations
Jump To
Cite 1 - [2020] QCAT 460
Cite 2 - [2020] QCAT 460
Looke v Parbury Henty & Co. Pty. Ltd. [1950] VLR 94
2 citations
Jump To
Cite 1 - [1950] VLR 94
Cite 2 - [1950] VLR 94
McBride v Walton [1994] NSWCA 199
3 citations
Jump To
Cite 1 - [1994] NSWCA 199
Cite 2 - [1994] NSWCA 199
Cite 3 - [1994] NSWCA 199
Medical Board of Australia v TXA (No 2) [2023] QCAT 115
2 citations
Jump To
Cite 1 - [2023] QCAT 115
Cite 2 - [2023] QCAT 115
Medical Board of Australia v Wong [2015] QCAT 439
2 citations
Jump To
Cite 1 - [2015] QCAT 439
Cite 2 - [2015] QCAT 439
New South Wales Bar Association v Cummins [2001] NSWCA 284
2 citations
Jump To
Cite 1 - [2001] NSWCA 284
Cite 2 - [2001] NSWCA 284
Nursing and Midwifery Board of Australia v Seijbel-Chocmingkwan [2015] QCAT 283
2 citations
Jump To
Cite 1 - [2015] QCAT 283
Cite 2 - [2015] QCAT 283
R v Davidson [2022] QCA 22
2 citations
Jump To
Cite 1 - [2022] QCA 22
Cite 2 - [2022] QCA 22
Re Day [2017] HCA 2
2 citations
Jump To
Cite 1 - [2017] HCA 2
Cite 2 - [2017] HCA 2
Re Moage Ltd (in liq) v Jagelman & Or (1998) 153 ALR 711
2 citations
Jump To
Cite 1 - (1998) 153 ALR 711
Cite 2 - (1998) 153 ALR 711
Re Moage Ltd (in liq) v Jagelman & Ors [1998] FCA 296
2 citations
Jump To
Cite 1 - [1998] FCA 296
Cite 2 - [1998] FCA 296
St Clair v Timtalla Pty Ltd (No 2) [2010] QSC 480
1 citation
Jump To
Cite 1 - [2010] QSC 480
Trustees of the Property of John Daniel Cummins v Cummins [2006] HCA 6
2 citations
Jump To
Cite 1 - [2006] HCA 6
Cite 2 - [2006] HCA 6
Zaidi v Health Care Complaints Commission (1998) 44 NSW LR 82
2 citations
Jump To
Cite 1 - (1998) 44 NSW LR 82
Cite 2 - (1998) 44 NSW LR 82
Ziems v Prothonotary of the Supreme Court of N.S.W. (1957) 97 CLR 279
2 citations
Jump To
Cite 1 - (1957) 97 CLR 279
Cite 2 - (1957) 97 CLR 279

Cases Citing

Case NameFull CitationFrequency
Pharmacy Board of Australia v RKE [2025] QCAT 1583 citations
1

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