Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sadek v Health Care Complaints Commission [2021] NSWCATOD 39 Hearing dates: 9 November 2020 and by written submissions dated 13 November 2020 Date of orders: 09 April 2021 Decision date: 09 April 2021 Jurisdiction: Occupational Division Before: A Britton, Principal Member A Torrens, Senior Member D Preswick, Senior Member D Telford, General Member Decision: (1) The application for reinstatement is dismissed. (2) The Applicant is to pay the Respondent's costs as agreed or assessed. Catchwords: HEALTH — professional registration and discipline — reinstatement of health practitioner under the Health Practitioner Regulation National Law (NSW) — whether practitioner has discharged the onus of proving they are a fit and proper person COSTS — whether appropriate to exercise the discretion to fix costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448; 84 WN (Pt 2) (NSW) 275 HCCC v Sadek [2017] NSWCATOD 181 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sadek (No 2) [2018] NSWCATOD 90 Shah v Health Care Complaints Commission [2014] NSWCATOD 94 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: Nil Category: Principal judgment Parties: Anthony Sadek (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: Applicant (self-represented) Health Care Complaints Commission (Respondent) File Number(s): 2020/00226869 Publication restriction: Pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of Patient D or Dr BW is prohibited. REASONS FOR DECISION Introduction 1. In June 2018, a differently constituted Tribunal made orders cancelling Mr Anthony Sadek's registration as a pharmacist: Health Care Complaints Commission v Sadek (No 2) [2018] NSWCATOD 90. In addition, the Tribunal ordered that Mr Sadek was not entitled to apply for review of that order for 24 months. 2. Mr Sadek now exercises the right conferred by s 163A of the Health Practitioner Regulation National Law (NSW) (the "National Law") to apply for review of the cancellation order. Mr Sadek requests that the Tribunal reinstate his registration and undertakes to comply with any conditions on his registration that the Tribunal considers appropriate. The Health Care Complaints Commission ("the Commission") opposes Mr Sadek's application for reinstatement, arguing that he has failed to demonstrate that he is rehabilitated. 3. In conducting this review, our task is "to determine the appropriateness, at the time of the review, of the order concerned": s 163C(1) of the National Law. We cannot review the original decision, or any findings of fact made in connection with that decision: s 163(2). 4. For the reasons that follow, we have decided to dismiss Mr Sadek's application. Decision to cancel Mr Sadek's registration 1. In September 2013, in the course of reviewing records relating to the sale of OxyContin in NSW, the Pharmaceutical Services Unit ("PSU") observed that the pharmacy then owned and operated by Mr Sadek ("the Pharmacy") had purchased an unusually high quantity of OxyContin 80mg tablets. Sometimes referred to as "hillbilly heroin", OxyContin is a high-strength opioid analgesic. While recognised as having a proper therapeutic purpose, it is also recognised that OxyContin is subject to abuse and trafficking. 2. In March 2014, after identifying a series of irregularities in the Pharmacy's records, including the Schedule 8 register, a PSU investigator served an order on Mr Sadek prohibiting him from obtaining, possessing or supplying Schedule 8 substances, except methadone and buprenorphine for the purposes of treating patients on an "Opioid Treatment Program". In April 2014, following proceedings under s 150 of the National Law, the Pharmacy Council of New South Wales ("the Council") imposed conditions on Mr Sadek's registration reflecting the order issued by the PSU. 3. Following investigation of a complaint referred by the Council, the Commission referred a complaint about Mr Sadek ("the Complaint") to the NSW Civil and Administrative Tribunal ("NCAT"), comprising eight individual complaints. Complaints 1 to 7 related to Mr Sadek's conduct in dispensing various drugs, including, primarily, OxyContin. In Complaint 8, the Commission contended that individually and in combination, Complaints 1 to 7 amounted to professional misconduct under s 139E of the National Law. 4. The Tribunal conducted a two-stage hearing. In a decision made on 20 December 2017, HCCC v Sadek [2017] NSWCATOD 181 (the "Stage 1 decision"), the Tribunal found: 1. each Complaint proven (Mr Sadek admitted some of the complaints); 2. the conduct the subject of Complaints 1 to 7 (inclusive) amounted to "unsatisfactory professional conduct"; 3. the conduct the subject of Complaint 3 amounted to professional misconduct under s 139E of the National Law. 1. At [40] of the decision delivered after the completion of the second stage of the hearing, HCCC v Sadek (No 2) (the "Stage 2 decision"), the Tribunal summarised the conduct the subject of the Complaint as follows: Mr Sadek dispensed huge quantities of high strength OxyContin over a 14 month period without exercising the appropriate professional judgement to ensure that it was being taken by actual patients in clinically indicated and supervised circumstances. The possibility of misuse of this kind of drug is very significant, and the likelihood of misuse of the drugs that Mr Sadek was dispensing increased exponentially over time: in particular when he dispensed increasing quantities of high strength OxyContin into the hands of a single individual on the basis of handwritten private scripts, many of which were defaced or altered, issued in the name of a single Doctor. There were also numerous other proved instances of inappropriate dispensing of Sch 8 medications, principally OxyContin, on incomplete, altered or suspicious scripts during the same time period. Throughout, Mr Sadek did not report suspicious scripts or doctors to the relevant authorities. Complaint 3 1. The Tribunal considered Complaint 3 to be the most serious of the complaints, concluding that, of itself, it amounted to "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of [Mr Sadek's] registration". The Tribunal characterised Mr Sadek's conduct as "improper and unethical" and "more than mere incompetence": Stage 1 decision at [110]. 2. Complaint 3 concerned Mr Sadek's conduct in dispensing large quantities of OxyContin between 3 December 2012 and 7 March 2014, purportedly to 46 patients in circumstances where each prescription was issued by the same prescribing practitioner, Dr BW, did not contain directions for use and was collected by the same person, Patient D, who did not provide any form of patient authority to collect the prescriptions and who paid for each prescription in cash. The Tribunal noted that: 1. between 2010 and 2014, the Pharmacy dispensed 143,884 OxyContin tablets for prescriptions issued by Dr BW: 14,000 in 2010, 31,000 in 2011, 31,000 in 2012, 52,000 in 2013 and 13,400 to 20 March 2014; 2. most of the subject prescriptions were for high-strength OxyContin (generally 112 tablets of 80mg) and were presented at "short intervals" over prolonged periods. This had the potential for the dosage to exceed "recognised therapeutic standards" i.e. a maximum of one tablet twice a day; 3. none of the subject prescriptions was issued under the Pharmaceutical Benefits Scheme (PBS). According to the PSU, the PBS does not monitor private prescriptions and, as a consequence, issuing private prescriptions for opioids is a "well-known method of avoiding detection"; 4. Mr Sadek claimed that he did not know Patient D's surname or occupation. Nor did he sight, or ask Patient D to produce, any form of identification; 5. many of the subject prescriptions had been altered, with large parts blacked out, and were missing key details required to be included by law, such as the prescription pad ID number. 1. The Tribunal found that between 3 December 2012 and 7 March 2014, Mr Sadek: 1. dispensed OxyContin to Patient D on presentation of prescriptions purportedly written by Dr BW in circumstances "where he ought to have held serious doubt or concern in relation to the authenticity of the prescriptions and/or the prescribing practices" of Dr BW (Particular 2); 2. failed to report his "serious doubts or concerns" to an appropriate authority, such as the PSU or the NSW Police Force (Particular 3); 3. dispensed large quantities of OxyContin to Patient D in circumstances where he failed to obtain consent from the subject patient for the medication to be collected by Patient D and failed to discuss with Dr BW the appropriateness of Patient D collecting those prescriptions (Particular 4). 1. Dr BW denied issuing any of the prescriptions the subject of the Complaint, claiming that he rarely issued prescriptions for OxyContin. In addition, Dr BW denied knowing Patient D, being contacted by Mr Sadek or visiting him at the Pharmacy to "look over" the subject prescriptions. The Tribunal rejected these claims, finding Particular 1 of Complaint 3 — Mr Sadek's alleged failure to confirm the authenticity of the subject prescriptions with Dr BW — not proven. 2. Referring to CCTV footage taken of the Pharmacy in 2012 tendered by Mr Sadek (the "CCTV footage"), the Tribunal held that "the inescapable conclusion" is that Mr Sadek "had a consciousness of wrongdoing, and specifically that Dr BW's scripts or prescribing practices were not legitimate". That footage shows Patient D and Dr BW meeting Mr Sadek at the Pharmacy. The Tribunal noted that despite being conscious of his wrongdoing, Mr Sadek "continued to dispense very large quantities of high strength OxyContin for the next 17 months in dubious circumstances… until prevented from doing so by the PSU…". Assessment of Mr Sadek's credit 1. The original Tribunal found that Mr Sadek was prepared to tailor and falsify his evidence under oath: Stage 1 Decision at [110]. The Tribunal found much of the evidence given by Mr Sadek in relation to Complaint 3 to be "untrue": at [79]. In addition, at [54] the Tribunal found the explanation given by Mr Sadek of his understanding of his professional obligations in dispensing Schedule 8 medication to be "implausible and unconvincing". In respect of Complaint 5 (dispensing 2,664 OxyContin tablets to one patient over a 14-month period), the Tribunal found the claim made by Mr Sadek to the PSU investigator and at the s 150 hearing, that he was unaware that OxyContin should not be taken more than twice a day, to be "an ill-considered attempt to justify what was plainly his dispensing of excessive quantities": at [98]. Post-cancellation of Mr Sadek's registration 1. As a consequence of losing his registration in June 2018, Mr Sadek was required to dispose of his financial interest in his pharmacy: Sch 5F, cl 5(1) of the National Law. According to Mr Sadek, he sold the Pharmacy to family friend, Mr Anthony Haddad, who in turn sold the Pharmacy to Mr Sadek's son, Mr James Sadek, after he obtained registration as a pharmacist in December 2018. 2. In oral evidence, Mr Sadek said that for a period after losing his registration, he was not involved with the Pharmacy. He claims that when he returned to work in the Pharmacy as an "unpaid part-time assistant" his duties were "strictly front of shop… serving customers". He denied having any role in dispensing medication. On questioning, he stated that he has not disclosed that he has lost his registration to customers or pharmacist colleagues (other than those working at the Pharmacy). He claims that when asked by former customers why he is no longer dispensing drugs, he says that he has stepped down to make way for the younger generation. He denied acting as the de facto owner of the Pharmacy. 3. Mr Sadek stated that during the COVID-19 pandemic he was on the "front line keeping frightened customers up to date with information and assisting in implementing the avoidance measures to minimise spread". Acknowledgment of wrongdoing 1. In these proceedings, Mr Sadek stated that he acknowledges the "terrible and sustained mistakes" the subject of the Complaint and undertakes "never to repeat them". 2. In the intervening period between the handing down of the Stage 1 decision and the Stage 2 hearing, Mr Sadek commenced but did not complete an online course, "Ethics and Dispensing in Pharmacy Practice", offered by the Pharmaceutical Society of Australia (PSA) (the "Ethics Course"). He told the Tribunal that he had completed two of the course's four modules on the day of enrolment and intended to complete the remaining modules over the next few months: Stage 2 decision at [10]. When questioned why he did not complete that course, he said he found it time-consuming. Mr Sadek told the original Tribunal he was "looking into" further PSA courses, had not undertaken any face-to-face professional development and his interaction with other pharmacists was limited to colleagues with whom he works: Stage 2 decision at [13]. 3. In these proceedings, Mr Sadek claims that after the Stage 2 decision was handed down, he started the Ethics Course afresh and it changed his "outlook on life". He stated that when he first undertook the course he was "so traumatised that not much at the time really registered". He said that, having completed the course, he came to fully appreciate what he had done was "reckless and immoral" and had endangered the community. He stated that until that time he had attributed responsibility for his actions to Dr BW, which he now acknowledges was an error, and that he was obliged to maintain his "professional autonomy". He said there were numerous "red flags" which he should have recognised and acted upon and ceased supplying OxyContin. 4. Mr Sadek claimed that it was not until he was served with the Commission's material in these proceedings that he came to fully appreciate the extent and gravity of the OxyContin crisis in Australia. He acknowledged that by 2012 the growing problem of the misuse of OxyContin crisis was widely known, including among the pharmacist community. He conceded that as a pharmacist and owner of a pharmacy he was obliged to keep abreast of such developments. He agreed that in continuing to dispense large quantities of OxyContin upon presentation of prescriptions issued by Dr BW and collected by Patient D, he had put his business interests before patient care and was motivated by greed. 5. Mr Sadek conceded that the arrangement between Dr BW and Patient D was "highly suspicious" and the reason he had retained the 2012 CCTV footage was not, as he had claimed in the original proceedings, for professional development purposes, but rather to "protect himself" in the future. Professional development 1. After the Stage 2 decision was handed down, in addition to the Ethics Course, Mr Sadek undertook numerous online courses on a wide range of topics, including legislation and pharmacy practice, pain management and substance use disorders. Mr Sadek claims he has exceeded the requirement imposed on registered pharmacists to undertake continuing professional development. 2. In addition, Mr Sadek claims to have read widely on the topic of substance abuse and is committed to continuing to do so. Mr Sadek's character 1. In support of his application seeking reinstatement, Mr Sadek tendered references prepared by Ms Sally Haddad and Ms Virginia Boulous. 2. Ms Haddad states she first met Mr Sadek 15 years ago while working as a Practice Manager in a medical centre. According to Ms Haddad, in that role she had the opportunity to observe Mr Sadek's conduct as a pharmacist and observed him to be professional and to care for his patients. 3. Ms Haddad states she is aware of the circumstances of Mr Sadek's deregistration and was informed it related to "over dispensing of controlled medications". 4. According to Ms Haddad, Mr Sadek is an "honest person of outstanding character". Those attributes, in Ms Haddad's view, are inconsistent with the "behaviour associated with deregistration of Anthony's professional licence". 5. Solicitor, Ms Virginia Boulous, has known Mr Sadek all her life. She is a cousin of Mr Sadek. She pointed out that Mr Sadek's mother and younger son were extremely unwell at the time of the conduct the subject of the Complaint. In her view this caused Mr Sadek "severe distress and worry" and may have impacted on his "ability to make the right professional judgment concerning the matters giving rise to his deregistration". She stated that on his return to work after selling the Pharmacy, she observed Mr Sadek "develop an acceptance, understanding and insight into his actions". 6. According to Ms Boulous, Mr Sadek has been chastened by the experience of his deregistration and reminded "of the important paramount consideration of the protection of the health and safety of the public". In her view, presented with a similar situation again, Mr Sadek would immediately seek advice and make a report to the PSU (now the Pharmaceutical Regulatory Unit). 7. Accepting that the original Tribunal found that Mr Sadek tailored his evidence and did not give candid evidence, Ms Boulous stated that this is out of character and she has always found Mr Sadek to be a "forthright individual who has always been honest in his personal dealings with me". The principles governing review of a cancellation order 1. Having conducted an inquiry into the application for review of a cancellation order, the Tribunal may, among other things, dismiss the application, make a reinstatement order, or impose conditions on the person's registration: s 163B of the National Law. 2. In the exercise of the power to conduct an inquiry under s 163B of the National Law, the protection of the health and safety of the public must be the paramount consideration: s 3A. The objectives of the National Law include providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered: s 3(2)(a). 1. To practise as a health practitioner, a person must be a "fit and proper person for general registration" and be able to practise his or her profession competently and safely: s 55(1)(h) of the National Law. 2. In Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Adams J at [85] cited with approval the principles relating to the reinstatement of deregistered health practitioners under the National Law as summarised in Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]: • the applicant bears the onus of proving that he [or she] is a fit and proper person to be engaged in the profession… (see [Scully v HCCC [2013] NSWNMT 7 (Scully)] [41] and the authorities there referred to); • the standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw (1938) 60 CLR 336; (see [Scully] [41] and the authorities there referred to; see also In Re Jason Martin [2010] NSWMT 13 at [41]); • the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction [that] is exercised is for the protection of the public (see [Scully] [47] and the authority there referred to); • the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see [Scully] [48] and the authority there referred to); • there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see [Scully] [49] and the authority there referred to); • in making an assessment of the applicant's worthiness and reliability for the future the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. At [50] [of Scully] the Tribunal referred to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant". Is cancellation now the appropriate order? 1. It is against the principles set out above that Mr Sadek bears the onus of proving, on the balance of probabilities, that he is a fit and proper person to hold registration as a pharmacist. 2. In establishing that he is reformed and can be entrusted with the obligations imposed on pharmacists to practise in an ethical manner, Mr Sadek faces significant hurdles. Much of the conduct the subject of the Complaint was not the result of incompetence or a lack of knowledge of the rules and regulations governing the practice of pharmacy, which arguably could be cured by further training and education. Rather it was conduct of a dishonest nature, motivated by greed. For more than two years, Mr Sadek knowingly dispensed vast quantities of OxyContin for financial gain in circumstances where he ought to have been aware it was likely to be abused. In addition, as found by the original Tribunal and acknowledged by Mr Sadek in these proceedings, he gave untruthful evidence to the Tribunal. 3. To his credit in these proceedings, Mr Sadek made full admissions and acknowledged the wrongfulness of his conduct. In addition, he has undertaken several courses and reflected upon his actions which resulted in the loss of his registration. However, the question remains: is he a person of reformed character who can now be entrusted with the obligations imposed upon pharmacists? As Walsh JA commented in the oft-cited passage in Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (Pt 2) (NSW) 275 at 286: ... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. 1. We have before us character references from people of good repute who attest to Mr Sadek being a person of good character and being unlikely to reoffend. It is possible, as Ms Boulous believes, that Mr Sadek's judgment may have been impaired as a result of the stress he was experiencing in dealing with his son's illness. However, the issue remains: is there a risk that conduct of that type will be repeated? 2. Mr Sadek's claim of not being aware of the widespread misuse and trafficking of OxyContin, if accepted, indicates that at the time of the offending conduct he was isolated within the profession and failed to keep abreast of significant social developments that impact on the safe practice of pharmacy. But even if that claim were to be accepted, the fact remains that for over two years Mr Sadek dispensed numerous prescriptions for commercial gain in very suspicious circumstances where he knew or ought to have known that the prescriptions were not issued for a legitimate purpose. One of the very reasons that pharmacists are trusted to dispense scheduled medications like OxyContin is that they may be presumed to recognise suspicious use of prescription drugs when it forms a pattern, such was the case here, and take appropriate steps to protect the public from such abuse. At best, Mr Sadek turned a blind eye to obviously suspicious behaviour on the part of the "patient" who collected the drugs, thereby failing in his duty to the public and his profession. His excuse of being under stress when he behaved so unprofessionally gives us no confidence that, placed under pressure again, and forced to choose between self-interest and the public interest, his judgment would be any better. 3. It may be, as Ms Boulous and Ms Haddad believe, that this conduct is entirely out of character and will not be repeated. Nonetheless, given the nature, gravity and duration of the conduct the subject of the Complaint, we are not persuaded that Mr Sadek has discharged the onus of proving that he is now fit to practise as a pharmacist. 4. For these reasons the application must be dismissed. Costs 1. The Commission seeks an order that Mr Sadek pay its costs in these proceedings in the sum of $8,300. 2. In exercising the power to award costs, conferred by cl 13 of Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. Here, there is no evidence of any disentitling conduct by the Commission or any other consideration which might warrant a departure from that rule. Therefore, we have decided to order that Mr Sadek pay the costs of the Commission. 3. However, we have decided not to exercise the discretion to fix the costs payable by Mr Sadek. The Commission has provided us with a schedule listing its costs and disbursements. While the costs claimed in that schedule appear to be reasonable without additional material, we could not be satisfied that they are. In our view, it would not be an efficient use of the limited resources available to NCAT to determine whether the costs sought are reasonable, especially in circumstances where the party required to pay costs is self-represented and is unlikely to be able to assist the Tribunal in the task of assessing whether the costs sought are reasonable. For that reason, we order that Mr Sadek pay the costs of the Commission as agreed or assessed. Orders 1. The application for reinstatement is dismissed. 2. The Applicant is to pay the Respondent's costs as agreed or assessed. ********** 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: 09 April 2021