Health Care Complaints Commission v Conte [2021] NSWCATOD 37

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Conte [2021] NSWCATOD 37 Hearing dates: 25 – 26 February 2021 and by written submissions dated 8 March 2021 Date of orders: 08 April 2021 Decision date: 08 April 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member R Benda, Senior Member K Carter, Senior Member M Ficarra, General Member Decision: (1) The Respondent is reprimanded. (2) The following conditions are imposed on the Respondent's registration: General conditions A. The Respondent must not work as a pharmacist in charge for a period of 24 months or such longer period of time as determined by the Pharmacy Council of New South Wales (the Council). B. The Respondent must not work as the sole pharmacist on duty for a period of 24 months or such longer period of time as determined by the Council. C. The Respondent must not possess, supply, dispense, administer or manufacture any substance detailed in Schedule 8 of the NSW Poisons List (drug of addiction, derivative or compound medication), Schedule 4B (special restricted substance, derivative or compound medication) or Schedule 4D (prescribed restricted substance, derivative or compound medication), or any substance detailed in an equivalent list of any other Australian State or Territory, for a period of 24 months or such longer period of time as determined by the Council. Mentoring conditions D. The Respondent is to undergo mentoring by an experienced pharmacist approved by the Council as follows: i. The Respondent is to nominate to the Council an experienced pharmacist who is unrelated to him, is not a present employee at the Booth Street Pharmacy, Annandale (Pharmacy), and is not a previous employee at the Pharmacy, other than Mr Branko Radojković, to act as his professional mentor (Mentor). ii. The mentoring relationship is to continue for a period of 24 months from the date of the Mentor's appointment, or such longer time as determined by the Council, and at the frequency determined by the Council. iii. The Respondent is to authorise the Mentor to provide reports to the Council at the frequency determined by the Council and to inform the Council within one business day if there is any concern about the Respondent's professional conduct or personal well-being. iv. The Respondent is to authorise the Mentor to report to the Council about his professional conduct and personal well-being at the conclusion of the 24-month period of the mentoring relationship. v. The Respondent is to meet all costs associated with the mentoring conditions. vi. As soon as practicable after the Mentor is appointed by the Council, the Respondent must provide the Mentor with a copy of the decision made by the Tribunal. Auditing conditions E. The Respondent is to: a. apply for Quality Care Pharmacy Program (QCPP) accreditation within 4 weeks of the date of these orders; b. obtain QCPP accreditation for the Pharmacy within 6 months of the date of these orders or such longer period as the Council may allow upon request by the Respondent (such request to be accompanied by submissions as to why the period should be extended); and c. maintain QCPP accreditation for the Pharmacy for a period of at least three years from the date of the accreditation being granted. F. The Respondent is to undergo external auditing as follows: i. The Respondent is to nominate an appropriate external auditor to be approved by the Council (Auditor) for the purpose of conducting regular audits of the Respondent and the Pharmacy as set out below (Audits). ii. The Audits are to focus on (but not be limited to) compliance by the Respondent and the Pharmacy with the Poisons and Therapeutic Goods Act 1966 (NSW), the Poisons and Therapeutic Goods Regulation 2008 (NSW), the Health Practitioner Regulation National Law (NSW) (the National Law), the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW), and codes or guidelines approved by the Pharmacy Board of Australia pursuant to s 41 of the National Law (the Standards). iii. The Audits are to be conducted in the manner and at the frequency determined by the Council, for a period of at least two years. iv. The Respondent is to authorise the Auditor to provide reports to the Council at the frequency determined by the Council and to inform the Council within one business day if there is any concern about the Respondent or the Pharmacy meeting the Standards. v. The Respondent is to meet all costs associated with the auditing conditions. vi. As soon as practicable after the Auditor is appointed by the Council, the Respondent must provide the Auditor with a copy of the decision made by the Tribunal. Compounding conditions G. The Respondent must not allow any aseptic or other form of complex compounding (as defined in clause 4 of the "Guidelines on compounding of medicines" made by the Pharmacy Board of Australia) to take place in any pharmacy in which he has a financial interest, or participate in any such compounding. H. The Respondent must not allow the compounding or manufacturing of any preparation containing testosterone to take place in any pharmacy in which he has a financial interest. I. The Respondent is not to keep, and is to ensure that there are not kept, at the Pharmacy any substances that are not required for the ordinary operation of the Pharmacy. (3) The appropriate review body for the purposes of Part 8, Division 8 of the National Law is the Pharmacy Council of New South Wales. (4) The Respondent is to pay the Applicant's costs, assessed in default of agreement. Catchwords: HEALTH — professional registration and discipline — unsatisfactory professional conduct — pharmacist convicted of importation of regulated substances without permit — complaint confined to allegation of unsatisfactory professional conduct — found guilty of unsatisfactory professional conduct — cancellation or suspension not appropriate protective order in circumstances — conditions imposed on registration — other protective orders made Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3A, 130, 139B, 144, 149, 149A, 149C, 150, 150A Crimes (Sentencing Procedure) Act 1999 (NSW), s 22(1A) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Texts Cited: Pharmacy Board of Australia, "Guidelines on compounding of medicines" (March 2015) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) John Peter Conte (Respondent) Representation: Counsel: D Fuller (Applicant) Dr P Dwyer (Respondent)