Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Slater [2020] NSWCATOD 84 Hearing dates: 29 June 2020 Date of orders: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Occupational Division Before: J Millbank, Senior Member E Anderson, Senior Member J Zwart, Senior Member B Seth, General Member Decision: (1) Pursuant to a finding of professional misconduct and a finding that the practitioner is unfit in the public interest to practise the profession of pharmacy, the practitioner's registration is cancelled under s 149C(1)(b) and (c); (2) Pursuant to s 149C(7) of the National Law, the practitioner may not apply for a review of the above order for a period of one year; (3) The practitioner is reprimanded; (4) The respondent to pay 40% of the applicant's costs as agreed or assessed; (5) A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of Persons A-C listed in the schedule to the complaint. Catchwords: TRADES AND PROFESSIONS – Pharmacy – criminal findings – restricted drug possession without prescription or authority – drug labelling – failure to notify of criminal charges Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: ASIC v Rich [2005] NSWSC 62 Flori v Commissioner for Police [2015] 2 Qd R 497 Konopka v Commissioner of Police [2017] NSWIRComm 1014 R v Rapolti & Ors [2016] NSWCCA 264 Williams v Keelty (2001) 111 FCR 175 Texts Cited: Pharmacy Board of Australia, Guideline on Compounding Medicines (2015) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Phillip Lawrence Slater (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self-represented) File Number(s): 2020/00057402 Publication restriction: A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of Persons A-C listed in the schedule to the complaint. REASONS FOR DECISION Background 1. Mr Slater has been a registered pharmacist since 2006. In 2016 Mr Slater had a financial interest in five pharmacies in the Hunter Region: Amcal Max Rutherford Pharmacy, Telarah Pharmacy, McKeachie's Pharmacy, Morpeth Pharmacy and Old Bar Beach Pharmacy. 2. The following facts are drawn from agreed facts between the parties in this proceeding, agreed facts submitted as part of earlier criminal proceedings and uncontested material in evidence. 3. In April 2016 the practitioner was stopped by police while driving. Police seized a number of restricted substances from the vehicle, including testosterone, human growth hormone and phentermine. The phentermine was in non-commercial packaging and marked only as 'Rocket Caps'. Accompanying the substances was a handwritten piece of paper titled 'Order 4' which comprised a list of the substances, quantities, and corresponding figures which were later conceded to be prices. 4. The practitioner stated to the Police that he was conveying the items between his pharmacies, but he had no documentation to support that assertion. The practitioner has since admitted that he was transporting the substances to a friend and business associate, who was also a patient of the Rutherford Pharmacy, Person A. 5. In June 2016 the Police and Pharmaceutical Services Unit (PSU) attended Rutherford Pharmacy where the Police executed a search warrant and the PSU served eight notices under s 35 of the Poisons and Therapeutic Goods Act 1966 (NSW). Mr Slater's vehicle was at the Rutherford Pharmacy and was found to contain a quantity of testosterone. Mr Slater stated to Police, 'I was just in the process of transferring some stock to Waratah.' The practitioner did not present any documentation to support that assertion. None of Mr Slater's five pharmacies were in Waratah. 6. Police also attended Mr Slater's home. In the practitioner's home were a number of medications, including Schedule 4 and 4D restricted substances. This included three different commercial formulations of methylphenidate hydrochloride, a drug used to treat ADHD. Two of the methylphenidate hydrochloride medications were labelled with dispensing labels in the names of Persons B and C, both previous patients of the Rutherford pharmacy. The third had no label. The practitioner admitted that he self-administered this substance as a stimulant to assist him with work and study, and that he did not have a prescription for this medication for any clinical purpose. 7. In June 2016 the practitioner was charged with several criminal offences in relation to the above. As a result of publicity associated with the charges, the Pharmacy Council (the Council) convened s 150 proceedings and imposed conditions upon the practitioner's registration, including that he not practise as a pharmacist and not enter any pharmacies in which he had a financial interest. 8. In April 2018 the practitioner ultimately pled guilty to two charges of supply a prohibited drug and one charge of fail to comply with licence. The Local Court imposed a sentence comprising a good behaviour bond and fines totalling $1300. 9. In May 2018 the Council held further s 150 proceedings and suspended Mr Slater's registration, which remained suspended at the time of this hearing. 10. In August 2018 Mr Slater successfully appealed his sentence and the District Court substituted three concurrent good behaviour bonds with no criminal conviction recorded. 11. Since being restricted from practising pharmacy, the practitioner has worked in other employment, and has also undertaken higher education. The Complaint 1. Complaint 1 is that the practitioner engaged in unsatisfactory professional conduct within s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) ('the National Law') by reason of improper conduct due to: possessing the 'Rocket Caps' in April 2016, without prescription or authority and having compounded those capsules in contravention of Guideline 2 of the Pharmacy Board of Australia's Guidelines on Compounding Medicines and labelled them in breach of Cl 26(3) of Appendix A of the Poisons and Therapeutic Goods Regulation 2008 (NSW) ('the Poisons Regulation'). 2. Complaint 2 is that the practitioner engaged in unsatisfactory professional conduct within s 139B(1)(l) by reason of unethical conduct in the practice of pharmacy due to: possession of testosterone found in his car in June 2016 without reasonable excuse contrary to s 134 of the Poisons and Therapeutic Goods Act 1966 (NSW) and also possession without prescription of the methylphenidate hydrochloride found in his home. 3. Complaint 3 is that the practitioner is guilty of unsatisfactory professional conduct within s 139B(1)(b) of the National Law by reason of contravention of s 130(1) of the National Law (requiring the notification of criminal charges, and criminal convictions), for failing to notify the Australian Health Practitioner Regulation Agency (AHPRA) of the charges as well as the convictions, and subsequent successful appeal and change to his criminal history. 4. Complaint 4 is that the practitioner has been made the subject of a criminal finding per s 144(a) of the National Law. 5. Complaint 5 is that the combination of the particulars of unsatisfactory professional conduct is of a sufficiently serious nature to amount to professional misconduct. The Hearing and Evidence 1. The matter was heard via AVL over one day and the practitioner represented himself. The Health Care Complaints Commission (HCCC) filed evidentiary material largely associated with the prior criminal proceedings, including the NSW Police Brief of Evidence filed in the Local Court. 2. The practitioner filed a set of materials comprising a brief response to the complaints undated but received by the Tribunal on 22 June 2020, a report dated June 2020 from clinical psychologist Dr Maryann Gauci and a reference from a proposed professional mentor Mr Noh, also dated June 2020. The practitioner's materials also contained a number of documents prepared for the sentencing process of the criminal proceedings all dated April 2018, including a forensic psychological report prepared by Ms Caroline Hare, a pre-sentence report from Community Corrections, a personal reference from the practitioner's wife and another from a pharmacist he had worked with many years previously, a religious minister at a church where Mr Slater volunteered, and a reference from Mr Noh his former employee and then business partner. Mr Slater also gave oral evidence. 3. The practitioner conceded Complaints 1, 2, 4 and 5. Complaint 3 was characterised as a 'misunderstanding'. The failure to notify of a criminal charge and convictions is a breach of the National Law regardless of intent, and as such is defined by the National Law as unsatisfactory professional conduct. However, the HCCC conceded that such failures are common among health professionals, and there was no suggestion of dishonesty on the part of the practitioner in relation to this failing. The HCCC indicated that it did not press for any disciplinary consequence to flow from Complaint 3 if taken alone. 4. In his s 40 response to the HCCC sent through solicitors in June 2019 the practitioner conceded that his conduct 'would suggest that he is not a suitable person to hold registration as a Pharmacist.' 5. On the morning of the hearing the parties presented a joint set of agreed facts. 6. The hearing was therefore conducted as a Stage Two hearing. 7. The HCCC sought an order of cancellation of the practitioner's registration pursuant to s 149C(1)(b) and (c) of the National Law, a one year non-review period, and costs of the proceedings. 8. Mr Slater's position was that his registration should not be cancelled and that rather he should be subject to conditions comprising supervision and mentoring or, in the alternative, a period of suspension followed by such conditions. 9. During the course of the hearing the HCCC sought to withdraw all of the material from the NSW Police Brief of Evidence, which itself comprised almost all of its evidentiary material. This was stated to be in reliance upon legal authority that evidence obtained under a search warrant in criminal proceedings cannot be used in civil proceedings, citing Flori v Commissioner for Police [2015] 2 Qd R 497; R v Rapolti & Ors [2016] NSWCCA 264 and Konopka v Commissioner of Police [2017] NSWIRComm 1014. 10. The Tribunal noted that numerous items of evidence in the Brief of Evidence were not in fact obtained under a search warrant – such as witness statements, and the pharmacy dispensing records which were produced in response to notices under the Poisons Regulation. The solicitor for the HCCC then sought to leave those materials in evidence that were not obtained under the search warrants, only to change course and then make a formal application to withdraw them again. With respect to the HCCC, it really was not their finest hour. 11. In order to maximise the hearing time, provide an opportunity for the respondent to consider his position, and deal with the issue in a more orderly manner, the Tribunal declined the application but granted leave to the HCCC to apply in writing following the hearing, with a right of reply to the practitioner. 12. The issues to be determined are: * Should the NSW Police Brief of Evidence be excluded? * What are the appropriate orders? * Costs. NSW Police Brief of Evidence 1. In written submissions the HCCC revived its application to withdraw the entirety of the materials contained in the Police Brief. In doing so it relied upon the additional authorities of Williams v Keelty (2001) 111 FCR 175 and ASIC v Rich [2005] NSWSC 62. 2. In ASIC v Rich, Austin J characterised the issue as, [A]n implied limitation emerging out of the structure of and purposes of the search warrant legislation, combined with the general proposition that if a power is conferred for a particular purpose it is limited by the purpose for which the power is conferred. [at 305]. 1. Austin J held at [262]-[263], [S]earch warrant materials cannot be used for later civil proceedings even if those materials have been used for the purposes of a single investigation with criminal and civil elements, prior to the commencement of the civil proceeding. This entails that if a regulatory agency has used search warrant materials during the course of an investigation, and decided to initiate a civil proceeding, care will need to be taken not to use, for evidentiary purposes or otherwise in connection with the civil proceeding, any of the search warrant materials – unless, of course, it becomes permissible to do so by the application of some other law. 1. We note that these legal authorities pre-date the HCCC's complaint and filing of evidence by some years. 2. In its written submissions the HCCC stated, Insofar as there is other material that falls within [those Tabs] that is not specifically material obtained under such search warrants, without concession as to the admissibility, use, or otherwise of this material, in an abundance of caution and noting both its limited relevance to the Commission's case and that agreed facts have been provided in this matter (including agreed facts from the criminal proceedings), the Commission also seeks to withdraw the tender of this material. 1. The respondent did not file a reply. 2. In the remarkable position in which an applicant presses for a very broad reading of precedent to withdraw its own evidence, and goes further again to seek to withdraw evidence that was not obtained under search warrant, the Tribunal is placed in a difficult position in the absence of any contradictor. 3. We are not convinced that the legal authorities relied upon establish an unwavering rule that evidentiary material gathered under a search warrant cannot be admitted into evidence in matters decided under the National Law. 4. None of these authorities addressed the provisions of the National Law. While proceedings under the National Law are obviously not criminal proceedings, nor can they necessarily be considered 'civil' proceedings in the traditional sense. 5. In this matter the complaint at hand arose directly from completed criminal proceedings and criminal findings, unlike many of the cases cited in which material gathered as part of a criminal investigation was then utilised in a civil proceeding without a criminal prosecution having taken place. It is therefore a very broad reading of collateral or improper purpose to apply it to a case such as this one where the criminal process had already run its course and the disciplinary proceeding arose as a direct consequence of it. 6. Moreover, the police brief materials in this matter were not admitted as proof of the complaints. The complaints were admitted by the respondent. The relevance of the police materials was therefore solely for the Stage 2 considerations. 7. Further, in NSW proceedings are governed by the paramount consideration in s 3A of the protection of the health and safety of the public, which could possibly satisfy Austin J's formulation concerning the application of some other law. 8. However as noted there was no contradictor and the respondent in this matter was self-represented. The proceedings were brief, the complaints were conceded, and two sets of agreed facts were admitted, all of which were sufficient to dispose of the matter. 9. Therefore, while the Tribunal is of the view that authoritative guidance from the Supreme Court on the scope of any such implied limitations on the use of evidence obtained under search warrant in the context of proceedings under the National Law would be very helpful, we determined not to unduly complicate this proceeding by admitting such material. 10. The Tribunal has excluded the material in the HCCC evidence obtained under the search warrant, and disregards the limited oral evidence given directly on such material at the hearing. 11. The witness statements and pharmacy dispensing records remain in evidence. These materials do not fall within the scope of material obtained under a search warrant, and are relevant to allow the Tribunal to consider the 'circumstances of the offence' as required by s 149C(1)(c). Appropriate Orders 1. The Tribunal considered the range of possible orders. 2. We conclude that neither the imposition of a period of suspension nor conditions as sought by the practitioner would be sufficient to protect the health and safety of the public. While the practitioner conceded the complaints, the Tribunal was far from convinced that the practitioner had a thorough insight into the offending conduct, or that he had a sufficient adherence to professional standards to enable him to practise safely. There were also various aspects of the submissions and evidence that caused the Tribunal to doubt the depth of the practitioner's professed candour and contrition. 3. In both written and oral submissions, the practitioner downplayed and minimised his conduct by reference to the small quantities of drugs involved. While the quantities of drug involved may be relevant to criminal questions of supply, the professional breaches involved in the improper and unethical conduct were serious and the conduct occurred on more than one occasion. 4. The oral evidence of the practitioner was also marked by vague, incomplete and inconsistent answers that could not be entirely explained by the passage of time since the conduct. Issues of particular concern are outlined below. Future Plans 1. In Ms Hare's April 2018 report, submitted by the practitioner, she noted that Mr Slater had reported to her that his wife was going to be 'taking over his interest' in three of his five pharmacies. In oral evidence Mr Slater stated that this had not in fact occurred; rather his interest was sold to partners or their family members in two of the pharmacies, cancelled out by debt in one pharmacy and sold to 'some random' in two of his other pharmacies. 2. Mr Slater confirmed that his wife had, and continued to have, a financial interest in a different pharmacy in the area. Mr Slater stated that he had not worked in his wife's pharmacy from the time that restrictions were imposed upon his registration in June 2016. Mr Slater indicated that he would like to work in his wife's pharmacy in the future in either a pharmacy or non-pharmaceutical role in order to 'help her out'. 3. Mr Slater appeared very reluctant to disclose, in response to repeated questions from the Tribunal, what name his wife was registered to practice under. While we have no basis upon which to draw any specific adverse inference from this reluctance, we note that this kind of evasion was a pattern reflected in Mr Slater's oral evidence as a whole. 4. Following the hearing the Tribunal sought written clarification from Mr Slater as to whether he had any financial interest in his wife's pharmacy during the period August 2018 to 29 June 2020 inclusive. No response was received. The Restricted Medications in the Practitioner's Home 1. The practitioner was asked by the HCCC to explain how medications dispensed in the names of Persons B and C came to be in his possession and be used by him. In response Mr Slater stated that he was not a drug seeking or drug dependant person, he had the medications in his drawers and it was just that he would occasionally 'try something' if he needed to study, but would stop straight away because it affected his stomach and he would 'put it back in the drawer'. He stated that all the medications were 'extremely out of date stock'. When pressed by the HCCC about how the medication issued in the names of other people came to be in his possession in the first place Mr Slater stated that he had taken them from a disposal area of the pharmacy after they had been returned by clients, for example if clients had changed medication. 2. A parent of Person C made a statement to the police in 2016 which was in evidence. This person stated that they routinely left scripts for the relevant medication at the Rutherford pharmacy but had never returned medication back to the pharmacy. 3. The Tribunal put to Mr Slater that if Person C's account were correct it suggested that he may have dispensed the medication for his own use and not received it as returned stock as he had claimed. Mr Slater denied that this had occurred. He then stated that he had no actual recollection of the events but that maybe 'off the top of my head' it could have been a dispensing error. 4. The Tribunal does not have any reason to doubt the account of the mother of Person C and we do have reason to doubt the credit of Mr Slater as explained elsewhere in this decision. 5. At another point Mr Slater indicated in oral evidence that he did not necessarily consider the alteration of a prescription to be a professional breach. On the issue of the propriety of altering a prescription to add repeats that had not been authorised by the prescribing doctor Mr Slater stated that 'it depends' on what the medication is and the reason for the alteration as to whether it was 'really a problem'. 6. Ms Hare's 2018 report notes that Mr Slater reported to her that he had 'occasionally' taken stimulant pharmaceutical drugs he had not been prescribed, on average once a month, commencing some seven years previously. That is, on evidence submitted by the practitioner himself, his non-clinical use of restricted medications was repeated and long-standing. 7. Ms Hare concluded that Mr Slater, appeared to engage in normalising/minimising his actions to some extent, stating that "a lot of chemists take medication" and he "figured [he] knew enough not to make a mistake" (in terms of placing his health at risk). 1. The practitioner continued to normalise and minimise the conduct in his oral evidence at the Tribunal. 2. The Tribunal is very troubled by the fact that some four years after the events the practitioner still did not have any genuine recognition of the fact that his possession and use of restricted medication that had been prescribed for his patients, and for which he had neither clinical need nor medical authorisation, was a serious breach of his professional duties. The June 2016 Testosterone as 'Replacement Stock' 1. The practitioner claimed both in his written statement and in his oral evidence that in June 2016 he had possession of testosterone in his car in order to transfer it between pharmacies. The practitioner claimed that this was to replenish the stock of testosterone taken by police in April 2016. We reject this account as false. It is both inconsistent with an earlier statement made by Mr Slater to police and implausible. 2. The statement made by Mr Slater at the time the drugs were located in his car outside the Rutherford Pharmacy in June 2016, noted in the agreed facts, was that he was 'transferring some stock to Waratah'. The practitioner did not own a pharmacy in Waratah. 3. The June 2016 testosterone had in fact been obtained by Mr Slater several days earlier. This involved Mr Slater making a return trip to Sydney late at night in order to obtain the testosterone from another pharmacist. Mr Slater acknowledged that he undertook this course of action in order to avoid detection arising from the appearance of additional testosterone orders on his wholesale records if he ordered it himself. 4. Mr Slater's account to the Tribunal was that the June testosterone was 'replacement stock' to replenish the drugs seized by police in April 2016, i.e. that it was being transported to the Rutherford Pharmacy not from Rutherford to Waratah as he had originally claimed to Police. 5. However, the agreed facts indicate that Mr Slater had obtained the medication 10 days earlier. In that time, he had not apparently processed and recorded the medication in the Rutherford pharmacy. No evidence of the proper processes for the transfer of drugs was produced by the practitioner. 6. In order to account for the drugs seized in April 2016 Mr Slater had been provided with a receipt by police. We note that it would have been highly improper to simply substitute medication obtained elsewhere into his stock with no record. Moreover, the June quantity of testosterone was in fact lesser than that seized in April, so could not in any event have satisfied that purpose. 7. The fact that the explanation given by the practitioner to Police in June was the same as the false explanation he gave to them in April also tends towards the conclusion that the statement in June was false. 8. Accordingly, we reject the practitioner's account. 9. It reflects adversely upon the practitioner's credit that he continued to maintain his fictitious account of 'stock transfer' in sworn testimony before the Tribunal. 10. The practitioner's account of how and why he came to be providing testosterone and other restricted substances to Person A also reflects poorly on both his credit and his understanding of his professional responsibilities. Person A, a Patient with Low Testosterone or a Professional BodyBuilder Friend with An Important Competition to Prepare For? 1. The drugs seized in April 2016 were to be supplied to Person A and included testosterone as well as other restricted drugs which, used in combination, may increase muscle mass and strength and decrease fat mass. The practitioner conceded that the document titled 'Order 4' supported the conclusion that similar drugs had been supplied by him on three previous occasions. The practitioner knew Person A to be engaged in competitive bodybuilding at a high level. Indeed, in his written statement the practitioner repeatedly referred to Person A as 'the bodybuilder'. The relevant drugs are all well known in pharmaceutical practice as likely to be misused by those engaged in bodybuilding, and to involve serious risks to the user when taken without clinical need. 2. Despite his formal admissions, the practitioner continued to maintain that his provision of these drugs to Person A without authorisation was 'actually fine' because the quantity was small, it was for a short time, and Person A had previously held a prescription for such medications. In Mr Slater's account he was, in effect, helping out a friend who was caught short when his regular doctor became unavailable and so this was a technical breach of the rules in order to provide clinically necessary medication, albeit without a script. 3. In oral evidence the practitioner asserted that Person A was eligible for PBS authority scripts for the medication as he was having blood tests and was within the clinical parameters for such medication because he had low testosterone. When asked how he knew this the practitioner asserted that he had sighted such test results when Person A had brought them into the Rutherford Pharmacy. No evidence was produced to back up this assertion, which sits at odds with the repeated supply of such medication in unusual circumstances, delivered in person and after hours. It is also somewhat undercut by Mr Slater's characterisation of Person A's previous doctor in oral evidence as someone that 'the bodybuilder was using to get his scripts'. Further we note that Mr Slater variously referred to the doctor as unavailable to prescribe for Person A by reason of being ill, retired and dead. 4. It was also surprising that the practitioner claimed that the supply of medication to Person A was clinically justified when the report of Ms Hare from 2018 appears to suggest otherwise. Ms Hare notes, Mr Slater seemingly justified his actions to himself through the use of cognitive distortions (or 'comfortable stories') to overcome any internal barriers/reservations. For example, he recalled thinking his friend was a professional who needed the substances, that testosterone "is not a scheduled drug" ... and that he was not causing any harm... Mr Slater seemed to lack some insight into what had enabled his professional boundaries to slip, although he accepted the wrongfulness of his actions. 1. We reject the claim that Mr Slater had formed a genuine professional opinion that Person A had a clinical need for the medications that he repeatedly supplied. As such the breach was unethical as well as improper. 2. Mr Slater's continued attempts to provide a justification for this conduct reflects very poorly on him. It was a very telling reflection on the practitioner's attitude to his professional responsibilities that he referred in oral evidence to Person A as having 'let him down', rather than the other way around. For these reasons we find it is necessary to also issue a reprimand. 3. Dr Gauci reports having consulted with Mr Slater on 27 occasions since June 2016. It is to Mr Slater's credit that he pursued ongoing supportive counselling. Dr Gauci's report notes that Mr Slater consistently maintained to her that he was ashamed of his behaviour and angry with himself for making poor choices. Mr Slater stated to Ms Gauci that his reason for attending counselling was to understand why he had behaved as he did and to understand how he could prevent such behaviour in the future. 4. Dr Gauci gives the opinion that when Mr Slater started counselling in June 2016 he 'did not have deep insight' into the causes of the conduct but over time came to understand that stress and a poor work/life balance had led to poor choices. Dr Gauci gives the opinion that through 'open and frank' discussions Mr Slater has gained insight into the causes of his 'ill-conceived behaviour' and has taken 'complete responsibility and ownership of this'. Dr Gauci gives the opinion that Mr Slater is deeply remorseful, unlikely ever to reoffend and a fit and proper person to resume pharmacy work. 5. With respect to Dr Gauci we are unable to accept her opinion based upon our assessment of Mr Slater's written statement and oral evidence, in which he was not open and frank, did not demonstrate insight, and continued to minimise, justify and in some instances deny, his wrongdoing. 6. Likewise, our considerations outweigh the views of the two professional references submitted by the practitioner that he is a 'diligent' professional who is 'truly remorseful'. 7. The character references by the practitioner's wife and religious advisor were also considered. The reference from the religious advisor dated April 2018 notes that he first met Mr Slater when Mr Slater volunteered at the church in August 2016. He describes Mr Slater as hardworking and trustworthy. The reference notes that Mr Slater was offered a paid position in the church kitchen in November 2017 two days per week. Mrs Slater's April 2018 reference notes that Mr Slater was offered a paid role in the church in December 2017. This is at somewhat at odds with Mr Slater's written submission and oral evidence that he 'volunteered' for the past four years in the church kitchen, but this is not a discrepancy that requires resolving. The minister's reference was provided in the context of criminal proceedings and it is not apparent whether the writer knew that it was submitted for these proceedings. It also cannot offer any assessment of the practitioner's professional attitudes or capabilities as a pharmacist, and we accord it little weight. 8. Mrs Slater gave the view in 2018 that the practitioner is ethical and 'always placed the needs of other people before his own. On this occasion it was unfortunately to his detriment.' The Tribunal does not accept this characterisation of the conduct which appears to reflect the practitioner's account, and places little weight upon the reference. 9. Even if the Tribunal had greater conviction of Mr Slater's insight, reformation and professionalism, we note that Mr Slater's plan, to be mentored by a former business partner and employee, and/or to work in a pharmacy owned by his wife would not be a sufficiently professional or 'arm's length' arrangement to give the Tribunal confidence that the health and safety of the public would be protected. 10. For the above reasons, we have determined that the only appropriate order to protect the health and safety of the public, following from our finding of professional misconduct, is cancellation of registration. Unfit in the public interest to practise 1. The National Law provides under s 149C(1) that the Tribunal may suspend or cancel a practitioner's registration if: (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; 1. In this case there is a direct nexus between the professional role and the criminal finding, as the medications were all in Mr Slater's possession by reason of his role as a pharmacist. The conduct subject to criminal findings, albeit ultimately not leading to a criminal conviction, arose directly from Mr Slater's ability to compound, dispense and supply restricted medications as a registered pharmacist. Some of the medications supplied to Person A could have endangered his health. These circumstances mean that the criminal findings have a very strong bearing on the standing of the pharmacy profession. 2. The public interest in maintaining trust in the pharmacy profession is engaged by the nature and circumstances of these offences. Pharmacists must be entrusted to put the health and safety of their patients first, by ensuring that the provision of restricted, and other, medications is appropriately targeted to patients' clinical needs. The practitioner was at best reckless and cavalier in his attitude to such duties at the time of the offences. The Tribunal remains very concerned that the practitioner did not appear to have any insight into the dangerous nature of his conduct and continued to justify himself and to characterise his breaches as minor or technical infractions. 3. Because of both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession of pharmacy, we find that the practitioner is unfit in the public interest to practise. 4. The setting of a non-review period can signal to the profession and the public the seriousness with which professional misconduct or criminal conduct is judged, but also gives guidance to the practitioner on the period of time which the Tribunal believes will be necessary in order for them to demonstrate rehabilitation and/or remediation from which to base a possible application for review to return to practise. 5. In this instance the offences are serious and occurred on more than one occasion. We believe that public confidence as well as public safety require a period of reform and rehabilitation before the practitioner could be considered safe to practise, and we set that as a period of one year. 6. For the benefit of the practitioner, we stress that the passage of time alone is not enough to ground an application for reinstatement to registration. When the non-review period has passed the onus will be for Mr Slater to demonstrate, to a differently constituted Tribunal, that he has used that time to pursue serious and sustained actions required to demonstrate a commitment to ethical professional practice and to regain the trust of the public and the profession. Costs 1. The HCCC was successful in its case. The hearing occurred over only one day and largely addressed Stage Two matters. However, a considerable portion of the day, and subsequent written submissions, were occupied with the HCCC arguing against the admissibility of a sizable (and shifting) selection of its own tendered and admitted evidence. This conduct extended the length of the hearing and unnecessarily increased its own costs. In written submissions the HCCC conceded that its conduct had extended the length of the hearing; it did not seek costs for written submissions and sought only 50% of its remaining costs. 2. We find that the wastage of hearing time, including in the presentation of argument for the withdrawal of evidence, extended proceedings considerably. Accordingly, we reduce the award of costs by 60%. Orders 1. Pursuant to a finding of professional misconduct and a finding that the practitioner is unfit in the public interest to practise the profession of pharmacy, the practitioner's registration is cancelled under s 149C(1)(b) and (c); 2. Pursuant to s 149C(7) of the National Law, the practitioner may not apply for a review of the above order for a period of one year; 3. The practitioner is reprimanded; 4. The respondent to pay 40% of the applicant's costs as agreed or assessed; 5. A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of Persons A-C listed in the schedule to the complaint. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2020