Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Pham [2021] NSWCATOD 41 Hearing dates: 11 – 12 February 2021 and by written submissions dated 19 February, 1 and 5 March 2021 Date of orders: 14 April 2021 Decision date: 14 April 2021 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member A Torrens, Senior Member D Preswick, Senior Member S Lovrovich, General Member Decision: (1) The registration of the respondent as a pharmacist is cancelled. (2) We fix a non-review period under section 163A(3)(a) of the Health Practitioner Regulation National Law (NSW) of 2 years. (3) The review body under section 163A is this Tribunal. (4) The respondent is to pay the costs of the applicant assessed in default of agreement. Catchwords: HEALTH — professional registration and discipline — complaint that respondent pharmacist responsible for conduct of others — whether complaint framed with sufficient particularity — held any deficiency overcome because proceedings conducted on basis respondent understood case being brought against him — no denial of procedural fairness HEALTH — professional registration and discipline — pharmacist also proprietor of pharmacy — multiple instances of inappropriate dispensing of regulated medication by respondent and other breaches of duty as a pharmacist — failure to comply with responsibilities as a proprietor — finding of professional misconduct — cancellation of registration as a pharmacist appropriate protective order — review period of 2 years — costs order made Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 165B(5A) Health Practitioner Regulation National Law (NSW), ss 41, 139B, 139E, 150, 163A Poisons and Therapeutic Goods Regulation 2008 (NSW), cl 54 Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 King v Health Care Complaints Commission [2011] NSWCA 353 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Texts Cited: Pharmacy Board of Australia, "Code of conduct" (March 2014) Pharmacy Board of Australia, "Guidelines for proprietor pharmacists" (September 2015) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Steven Pham (Respondent) Representation: Counsel: R Donnelly (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2019/00359878 Publication restriction: Non-publication order with respect to the name of any person identified as a patient or former patient of the respondent or any information which may tend to identify any such person. reasons for decision Background 1. These proceedings are constituted by an Amended Complaint brought by the applicant, Health Care Complaints Commission against the respondent Steven Pham, under the Health Practitioner Regulation National Law (NSW) ("the National Law") which arises out of his practice as a pharmacist. 2. The Amended Complaint relevantly complains that: Mr Steven Pham ("the practitioner") of [address omitted] being a pharmacist registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a pharmacist in Australia on 10 July 1997. In 2010 he became a proprietor of the Emerald Pharmacy in St Marys NSW ('the Pharmacy'). PARTICULARS OF COMPLAINT ONE PATIENT A 1. Between the period 7 October 2016 to 13 April 2017 the practitioner personally dispensed, or was responsible for the dispensing of, around 324 tablets of Sudafed Nasal Decongestant, a schedule 3 drug containing pseudoephedrine, to Patient A on the dates and in the quantities set out in Annexure 1. The dispensing was inappropriate in circumstances where: a. the practitioner failed to have regard to Patient A's previous history of supply; and b. the practitioner failed to obtain a specific medical history which would justify supplying Sudafed for a chronic condition; c. the practitioner failed to recognise the frequency of supply as a red flag and take appropriate steps such as counselling the patient, advising other pharmacy staff how to respond to further requests, referring the patient to a GP or drug and alcohol service, refusing to supply or contacting the Police. PATIENT B 2. Between the period 8 December 2016 to 7 April 2017 the practitioner personally dispensed, or was responsible for the dispensing of, around 216 tablets of Sudafed Nasal Decongestant, a schedule 3 drug containing pseudoephedrine, to Patient B on the dates and in the quantities set out in Annexure 1. The dispensing was inappropriate in circumstances where: a. the practitioner failed to have regard to Patient b's previous history of supply; and b. the practitioner failed to obtain a medical history which would justify the supplying Sudafed for a chronic condition; c. the practitioner failed to recognise the frequency of supply as a red flag and take appropriate steps such as counselling the patient, advising other pharmacy staff how to respond to further requests, referring the patient to a GP or drug and alcohol service, refusing to supply or contacting the Police. PATIENT C 3. Between the period 23 July 2015 to 24 August 2017 the practitioner personally dispensed, or was responsible for the dispensing of Primoteston, a schedule 4D anabolic steroid, to Patient C on the dates and in the quantities set out in Annexure 2 for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 of the Poisons and Therapeutic Goods Regulation 2008 ("the PTGR"), in circumstances where: a. the suggested dose is one vial per month and the Pharmacy was dispensing one vial per week; b. Anabolic steroids are commonly misused and the practitioner had a responsibility to ensure the supply was for a therapeutic purpose. 4. Between the period 28 September 2015 to 24 August 2017 the practitioner personally dispensed, or was responsible for the dispensing of Anastrozole, a schedule 4D drug, to Patient C on the dates and in the quantities set out in Annexure 2 for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 of the PTGR, in circumstances where: a. the approved indication for Anastrozole is the treatment of breast cancer in women; b. Anastrozole is prescribed off-label for the treatment of gynocomastia in males; c. Gynocomastia is a common side effect of Primoteston 5. Between the period 10 September 2015 to 14 July 2017 the practitioner personally dispensed, or was responsible for the dispensing of Duromine, a schedule 4D drug, to Patient C on the dates and in the quantities set out in Annexure 2 for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 of the PTGR, in circumstances where; a. Duromine is a weight loss drug and often abused as a stimulant; b. the combination of Duromine, Primoteston and Anastroloze [sic] and frequency of request and supply should have been a red flag of drug seeking behaviour and possible medication misuse. 6. The practitioner failed to document contact with Patient C's treating practitioners, including; a. Documenting the reason for prescribing outside of normal treatment guidelines; b. Documenting concerns about drug seeking behaviour; c. Documenting patient safety concerns. PATIENT D 7. Between the period 30 June 2015 to 25 September 2015 the practitioner personally dispensed, or was responsible for the dispensing of Temazepam, a schedule 4D drug, to Patient D on the dates and in the quantities set out in the dispensing records for Patient D Annexure 3 for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 the PTGR in circumstances where; a. the quantity and intervals of dispensing show an overuse of that medication; b. the oversupply of medication was an indication that it was no longer working. 8. Between the period 30 June 2015 to 3 December 2015 the practitioner personally dispensed, or was responsible for the dispensing of Nitrazepam, a schedule 4D drug, to Patient D on the dates and in the quantities set out in Annexure 3, for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 of the PTGR in circumstances where; a. the quantity and intervals of dispensing show an overuse of that medication; b. the oversupply of medication was an indication that it was no longer working. PATIENT E 9. Between the period 1 July 2015 to 16 November 2016 the practitioner personally dispensed, or was responsible for the dispensing of Clonazepam, a schedule 4D drug, to Patient E on the dates and in the quantities set out in Annexure 4, for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 of the PTGR in circumstances where; a. the quantity and intervals of dispensing show an overuse of that medication. 10. Between the period 30 June 2015 to 3 December 2015 1 July 2015 – 16 November 2016 the practitioner inappropriately dispensed, or was responsible for the dispensing of Methadone, a schedule 8 drug, to Patient E in combination with the schedule 4D benzodiazepines Clonazepam and Oxazepam, in circumstances where; a. the potential for abuse and harmful interactions was well known; b. he failed to discuss and document discussions with the prescribing doctors in relation to the combination and frequency of dispensing. PATIENT F 11. Between the period 19 August 2015 to 18 August 2017 the practitioner inappropriately dispensed, or was responsible for the dispensing of Methadone, a schedule 8 drug, to Patient F in combination with the schedule 4D benzodiazepines Alprazolam and Oxazepam and the schedule 8 benzodiazepine Alprazolam, on the dates and in the quantities set out in Annexure 5, in circumstances where; a. the potential for abuse and harmful interactions was well known; b. he failed to discuss and document discussions with the prescribing doctors in relation to the combination and frequency of dispensing; c. he failed to consider potential benzodiazepine abuse by not having appropriate conversations with the prescribers and the patient. PATIENT G 12. Between the period 12 July 2015 to 11 August 2017 the practitioner inappropriately dispensed, or was responsible for the dispensing of the schedule 8 drug Methadone to Patient G in combination with the schedule 8 benzodiazepine Alprazolam, on the dates and in the quantities set out in Annexure 6, in circumstances where; a. the potential for abuse and harmful interactions was well known; b. he failed to discuss and document discussions with the prescribing doctors in relation to the combination and frequency of dispensing; c. he failed to consider potential benzodiazepine abuse by not having appropriate conversations with the prescribers and the patient. PATIENT H 13. Between the period 1 July 2015 to 28 November 2015 the practitioner personally dispensed, or was responsible for the dispensing of Clonazepam, a schedule 4D drug, to Patient H on the dates and in the quantities set out in Annexure 7, for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 the PTGR in circumstances where the quantity and intervals of dispensing show an overuse of that medication. PATIENT I 14. Between the period 9 July 2015 to 31 October 2015 the practitioner personally dispensed, or was responsible for the dispensing of Clonazepam, a schedule 4D drug, to Patient I on the dates and in the quantities set out in Annexure 8, for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 of the PTGR in circumstances where the quantity and intervals of dispensing show an overuse of that medication. 15. Between the period 2 February 2016 to 14 June 2017 the practitioner inappropriately dispensed, or was responsible for the dispensing of the schedule 8 drug Methadone to Patient I in combination with the benzodiazepine Oxazepam and Clonazepam, on the dates and in the quantities set out in Annexure 8, in circumstances where; a. the potential for abuse and harmful interactions was well known; b. he failed to discuss and document discussions with the prescribing doctors in relation to the combination and frequency of dispensing; c. he failed to consider potential benzodiazepine abuse by not having appropriate conversations with the prescribers and the patient. PATIENT J 16 Between the period 26 August 2015 to 30 October 2015 the practitioner personally dispensed, or was responsible for the dispensing of Clonazepam, a schedule 4D drug, to Patient J on the dates and in the quantities set out in Annexure 9, for an inappropriate therapeutic purpose and in an inappropriate quantity, contrary to clause 54 of the PTGR in circumstances where the quantity and intervals of dispensing show an overuse of that medication. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively. 1. Both parties filed documentary evidence. Oral evidence was given by the respondent and by Gregory Cotterell, an experienced pharmacist who was retained by the applicant to provide expert evidence in these proceedings. We shall refer to this evidentiary material where relevant during the course of these reasons for decision. In addition, the respondent provided an Amended Reply to the complaints and the particulars thereof, in which a number of matters were admitted, and others contested. 2. We note that the parties agreed that the hearing of these proceedings should encompass both Stage 1, to ascertain the nature and extent of any misconduct of a professional nature committed by the respondent, and, if so, Stage 2, to ascertain what protective orders should appropriately be made. 3. We shall refer to each of the particulars of each of the complaints in turn. In doing so we shall make reference to the evidentiary material submitted with respect to each of the particulars, which included information obtained as a result of investigations conducted on behalf of the Pharmaceutical Regulatory Unit ("the PRU"), medical and dispensing records for each of the patients, and certain information made available to the Pharmacy Council of New South Wales ("the Pharmacy Council") in the course of carrying out its investigations concerning the respondent. In addition, the applicant made available guidelines and a code of conduct issued by the Pharmacy Board of Australia ("the Pharmacy Board"). We add for completeness that certain information was made available to us concerning prior investigations of the respondent conducted by the Inspections and Investigations Unit in 2005, which is only relevant to our consideration of the Stage 2 aspect of these proceedings. 4. We note that consistent with the principles adopted by this Tribunal in dealing with matters of this kind, in considering whether the applicant's complaints have been made out we will proceed on the basis of what is well known as the Briginshaw principle, namely that we must be "comfortably satisfied" on the balance of probabilities that the complaints and particulars thereof have been established. This higher standard reflects the seriousness of the matters which we are being asked to consider. This principle does not apply to any matter on which the respondent bears the burden of proof, which must be established on the ordinary basis, namely on the balance of probabilities. The professional pharmaceutical background of the respondent 1. Following his graduation from university with a degree in Pharmacy the respondent became a registered pharmacist on 10 July 1997 and commenced working full-time in a community pharmacy. In 2000 he purchased two pharmacies and worked in one of them until it was sold in 2006, and in 2007 commenced working in the other. He then purchased two further pharmacies in partnership with his brother in 2010, and eventually a third party purchased a 20% share in the remaining pharmacy which the respondent had owned alone. 2. The complaints which are the subject of these proceedings arose out of matters which occurred at one of the pharmacies which the respondent owned in partnership with his brother. That pharmacy usually employed two pharmacists and two pharmacy assistants. The respondent worked in that pharmacy approximately two days per week and when so working was the dispensing pharmacist in charge. That pharmacy was sold in October 2018. 3. The respondent said that a dispensing procedure was in place at that pharmacy. He produced a copy which is dated 3 May 2019. It is a pro forma "Alliance Pharmacy" document. 4. Following consideration given to the respondent's practice as a pharmacist the Pharmacy Council imposed conditions on the respondent's registration pursuant to section 150 of the National Law on 28 August 2017. These conditions precluded the respondent from working as a pharmacist in charge, prohibited him from dealing with substances detailed in Schedule 4D of the NSW Poisons List and required him to notify the pharmacist in charge of each pharmacy in which he had a financial interest of the existence of those conditions. 5. These section 150 proceedings arose following an investigation into the pharmacy the subject of these proceedings carried out in December 2016 by the PRU. The PRU issued a report dated 8 August 2017, a redacted copy of which is in evidence in these proceedings. We note that the report contains the following information: 1. the respondent was at the time the sole proprietor of the pharmacy in question (although there is evidence by the respondent that he owned the pharmacy jointly with his brother through a company structure); 2. information given to the investigators by Mr Nguyen, the pharmacist in charge, concerning the recording of sales of pseudoephedrine, was that the pharmacist would authorise the supply and the pharmacy assistant, Joann, would record the sales in a computer program known as Project STOP. We note that the pharmacy assistant provided a written statement to the Pharmacy Council dated 23 August 2017 in which she said that it was her practice and that of the pharmacy to record the sale of pseudoephedrine products in a paper notebook which "contained prompts as the information we are required to ask patients wishing to purchase pseudoephedrine products." She said that the notebook was kept in "the office drawers within the pharmacy". She made reference to the loss of the notebook which was "accidentally destroyed" when renovations were carried out "approximately 3 years ago". 1. At the conclusion of the section 150 hearing the delegates determined that the respondent posed a risk to public health and safety in that there were significant deficiencies in his practice as a pharmacist given his experience of nearly 20 years. As a result, the current conditions were imposed on his registration. 2. Before dealing with the circumstances of each of the patients referred to in the Amended Complaint, we set out for convenience the provisions of clause 54 of the Poisons and Therapeutic Goods Regulation 2008 (NSW), which prohibits the supply of any restrictive substance by a pharmacist in certain circumstances, which, as will be seen, are relevant to these proceedings: 54 Quantity and purpose of supply to be appropriate An authorised practitioner or pharmacist must not supply any restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. … Patients A and B 1. It is convenient to deal with the circumstances of both these patients together. In his Reply to the Amended Complaint the respondent admitted that he was the proprietor of the pharmacy in question. Furthermore, he admitted that the dispensing of the quantity of tablets of the substance in question was inappropriate. 2. However, the respondent did not admit that he failed to have regard to the patients' previous histories at the time each item was dispensed. He said that only a few recent supplies of Sudafed were visible on his Project STOP system. (We interpolate that information provided in the reasons for decision of the delegates of the Pharmacy Council is to the effect that from 23 March 2016 it became mandatory for the sale of pseudoephedrine to be recorded at the time in an online, real-time electronic form using the program Project STOP). He also did not admit that he had failed to obtain a specific medical history. Although the identities of these patients are unknown it was his "standard practice" to ask what symptoms a patient had and for how long in order to ascertain whether Sudafed was appropriate to be dispensed and to counsel them, including referring them to their GP if symptoms persisted. He said that he directed his staff to make these enquiries also. 3. Nevertheless, the respondent conceded that he failed to recognise the frequency of supply to these patients as a red flag from the supply history available to him. He admitted also that he did not refer these patients to a drug or alcohol service or to police because this was "not a standard practice." 4. In cross examination the respondent was taken to the prescribing records for these patients, which showed that 53 of the 106 prescriptions had been dispensed by Joann. He said that Joann was his shop assistant, she had no pharmacy qualifications, and she was not authorised to dispense medication. The respondent said it was possible that Joann had dispensed this medication, but he did not know. There are 20 prescriptions shown as dispensed by the respondent, and some containing no name for the person dispensing them. 5. The respondent said that in 2015/16 there was a procedure in place for dispensing drugs at the pharmacy. He annexed a copy of the current policy, which commenced on 25 September 2017, to his statement tendered in these proceedings. The respondent said that, before that date, he did have procedures in place for dispensing Sudafed, but they had not been written down. 6. In his statement the respondent said that, when entering data into Project STOP, only the last few transactions are displayed. However, in evidence he conceded that the screenshot would show a maximum of 10 transactions over a two-year period. The respondent emphasised that he was not the dispensing person shown in all the transactions. The respondent then said that whilst he was the pharmacist in charge, he was not present at the pharmacy when Joann was involved in the dispensing of Sudafed. The first occasion on which he had seen the dispensing history naming Joann was when these proceedings were commenced in 2017. Before then he had never looked at the Project STOP system to conduct an audit and was not aware of any records showing her name. Significantly, the respondent said that he had not carried out any check to see whether the policies which were in place were being followed. In a similar vein, the respondent said that he did not know whether other pharmacists were asking patients about their symptoms and past history to assess their suitability to be given Sudafed. In summary, the respondent conceded that he did not make any efforts to check whether the pharmacists were dispensing Sudafed appropriately, he never audited the dispensing records of the pharmacy, and he never checked whether non-pharmacists were dispensing Sudafed. 7. These concessions made by the respondent align with written information which he gave to delegates of the Pharmacy Council for the purposes of the section 150 hearing. In a letter dated 24 August 2017 the respondent said, in connection with the supply of pseudoephedrine: 1. he accepted that prior to the investigation by the PRU he had "failed to consistently maintain, and failed to ensure that the pharmacy maintained, records in a manner that adequately recorded conversations with prescribing doctors and/or the supply of pseudoephedrine products to customers"; 2. consequent upon the investigation, he had realised that his practice and the practice of the pharmacy were inconsistent with professional practice standards; 3. he recognised the importance of having good systems and dispensing procedures and protocols in place to ensure that the pharmacy dispensing procedures adopted were of the highest standard; 4. he would benefit from further education in relation to the dispensing procedures, counselling of patients and the sale of pseudoephedrine products. 1. With respect to Patient B, the respondent said in his Amended Statement that he had prescribed pseudoephedrine on 3 out of the 18 instances where this substance was provided to this patient. However, with respect to those instances where the dispenser was referred to as "Joann", he was unable to say whether he was the pharmacist involved. He conceded that dispensing this substance on 24 February and 3 March 2017 was inappropriately close in time, especially where 12 tablets had been dispensed 2 days previously. He said "I can see that I should have refused the supplies as Patient B, if taking the tablets in accordance with directions, would not have required additional tablets so soon." He admitted that the supply of pseudoephedrine products by the pharmacy "on many occasions in the subject period was in excess of therapeutic thresholds." 2. The respondent has conceded a lack of record keeping with respect to these patients. The "Code of conduct" for pharmacists issued by the Pharmacy Board in March 2014 ("the Code") contains clause 8.4, which deals with health records. We set out an extract from that clause: Maintaining clear and accurate health records is essential for the continuing good care of patients or client. Practitioners should be aware that some National Boards have specific guidelines in relation to records. Good practice involves: (a) keeping accurate, up-to-date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication and other management in a form that can be understood by other health practitioners (b) ensuring that records are held securely… … (d) ensuring that records are sufficient to facilitate continuity of care (e) making records at the time of events or as soon as possible afterwards … 1. Under section 41 of the National Law, we are entitled to have regard to the provisions of the Code for the purpose of these proceedings: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. We proceed on the basis that the respondent was required to ensure that appropriate records were kept of the matters referred to in clause 8.4 of the Code extracted above, and that he failed to do so. 2. In his report Mr Cotterell expressed the opinion that the failure to keep records was mitigated by the loss of records when the pharmacy was being renovated. We disagree. The failures admitted by the respondent were not caused by any destruction of records when the pharmacy was renovated. On the evidence, there was a fundamental failure to keep appropriate records in the first instance. We reject the opinion of Mr Cotterell that the respondent's conduct in this regard is not below the relevant professional standard in a significant manner. In our opinion the failure to keep appropriate records in all the circumstances constituted conduct which was significantly below the standard reasonably expected of a pharmacist of an equivalent level of training or experience of the respondent. 3. Mr Cotterell was asked to provide his expert opinion about whether it was appropriate for Joann, a pharmacy assistant, to record the supply of pseudoephedrine to patients. He said that this was of an acceptable standard, but in doing so he assumed "that for all supplies [the respondent] was consulted, and made a clinical decision based on the patient's request, as per the legislative guidelines for the supply of pseudoephedrine." There is simply no basis upon which Mr Cotterell could have made any such assumption. There is no evidence that the respondent was consulted by Joann in the manner assumed by Mr Cotterell, and indeed the respondent said that he was unable to provide any evidence about whether any consultation by Joann had occurred with him or any other pharmacist dispensing pseudoephedrine to these patients. Her statement to the Pharmacy Council makes no such reference. We reject Mr Cotterell's opinion in this regard as having no factual basis. 4. Mr Cotterell was of the opinion that in continually supplying pseudoephedrine to patients, which was intended for acute symptomatic treatment, without being aware of the rationale for that supply, the respondent's behaviour fell significantly below the relevant standard. We accept his opinion in this regard. 5. Significantly, for purposes which will become apparent the respondent included within his statement prepared for the purpose of these proceedings the following with respect to Patient A: 24. I as one of the proprietors of the Pharmacy did not adequately ensure that the supply of such products was always appropriate and that the staff were cognisant of abuse of such products and dealt appropriately with a request for excessive supply. 1. It will be observed that the particulars of Complaint One allege that the respondent either personally dispensed or "was responsible for" the dispensing of the quantity of Sudafed tablets referred to. The applicant submitted that these words and the basis upon which the proceedings were conducted were sufficient to alert the respondent to the fact that his responsibility derived from the fact that he was the proprietor of the pharmacy where the alleged misconduct occurred. We shall return to this aspect of these proceedings later in these reasons for decision, because they apply to the totality of the proceedings. 2. Apart from that part of the particulars of Complaint One which deals with the "responsible for" issue we are comfortably satisfied that each of the particulars has been made out. The respondent has conceded that the quantity of Sudafed dispensed was inappropriate and should have raised a red flag with respect to each patient. The respondent is unable to adduce any evidence of any kind that he had regard to the previous history of supply to each patient, that he obtained a specific medical history for each patient and that he had taken appropriate steps as alleged with respect to each patient. We are not persuaded that the respondent has discharged the burden of establishing these matters in circumstances where he has failed to provide any records which corroborate his denials. 3. As will be seen later in these reasons when dealing with the "responsibility issue", we are comfortably satisfied that all of the particulars with respect to these patients have been made out. Patient C 1. In his Amended Reply the respondent admitted paragraphs 3 to 6 of the Amended Complaint. In his Amended Statement the respondent said that he recalled that when this patient first presented at the pharmacy, he was not familiar with the prescribing doctor, Dr Spinks, and that he had contacted that doctor to discuss the medication. He said that he could no longer recall the details of the conversation but did recall that he was satisfied with the explanation provided, although he did not make a record of the conversation. The respondent said that he contacted Dr Spinks again in 2017 after the PRU investigation had commenced to enquire about the patient's medical condition and the therapeutic need for Primoteston. The respondent referred to a letter from Dr Spinks as being a response to his enquiry. However, that letter dated 22 August 2017 is addressed to the patient. It merely states that he has been a regular patient of the practice for many years and has been in consultation with a local endocrinologist being treated for central hypogonadic testosterone deficiency. 2. In his Amended Statement the respondent acknowledged that he did not exercise adequate clinical and independent judgment in relation to the dispensing of prescriptions for this patient. He said that he was naïve in accepting the patient's accounts of his condition and medication. He also acknowledged "that there were gaps in my professional knowledge and practice at the time of these dispensings" and that he had taken steps to acquire more knowledge in this area. He said that he was also more conscious of the importance of taking notes and keeping good records and that he had put in place processes to improve his performance in this area. 3. The respondent said in evidence that he did not know that when he was dispensing four packets each of three syringes, he was dispensing what was normally one year of medication once a month. He said that he never researched the appropriate dose. Although he asked Dr Spinks why the medication was being prescribed and how often it should be used, he did not recall what was said to him and he did not write down any details of the conversation. Even though the patient returned on 19 November and he dispensed another 6 syringes, the respondent did not call Dr Spinks again. Overall, the respondent did not call Dr Spinks to question the amount of medication being prescribed. Of the 70 syringes dispensed over 2 years, 52 had been dispensed by the respondent personally. The respondent said that he was told by the patient that he was using the medication, anastrazole, to deal with the side-effects of Primoteston. He conceded that he did not know why the patient was using these drugs and had no suspicion that the patient might have been abusing them. With respect to the letter from Dr Spinks the respondent conceded that he received this after the investigation had commenced and after he had been dispensing the medication for two years. He said he called the doctor because he thought that the patient was using the medication as a bodybuilder. 4. Mr Cotterell said that the respondent should have sought more information concerning this patient and that by failing to consult more frequently with the prescribing medical practitioner he was putting this patient "at considerable risk" of medication misuse. It was his opinion that the conduct of the respondent was significantly below the relevant standard. 5. We are comfortably satisfied that the particulars with respect to this patient have been made out. Patient D 1. The respondent admitted paragraphs 7 and 8 of the Amended Complaint in his Amended Reply. 2. The clinical notes for this patient indicated that she had been prescribed 925 tablets of temazepam 10mg during the period 1 July to 24 September 2015. The respondent had personally dispensed this medication on 4 occasions. Mr Cotterell said that this amount of temazepam should have lasted the patient approximately 400 days having regard to the recommended directions by the prescribing doctor, yet they were supplied over a timeframe of 86 days. This patient was also supplied approximately 900 tablets of nitrazepam 5mg over the period 1 July 2015 to 2 December 2015. Mr Cotterell said that this should have lasted the patient 500 days, but the supply was made over 85 days. 3. Mr Cotterell noted that the respondent had informed the delegates during the section 150 hearing that this patient had been involved in a car accident and required significant quantities of pain medication. The respondent and her carer were concerned about the patient's use of this medication and the respondent contacted the general practitioner to confirm the supply of the medication. The respondent said that the patient needed an early supply of the medication as she was going away on holidays. Mr Cotterell was of the opinion that the respondent should have recognised the potential that the patient was engaging in drug-seeking behaviour, should have counselled the patient and should have questioned the prescribing doctor about the dispensing history, rather than confirming the quantity of these drugs which had been prescribed. 4. In his oral evidence the respondent said that he had initially called the prescribing doctor, Dr Pham, to discuss the quantities prescribed, although he did not make a record of the conversation. He agreed 925 tablets had been dispensed over an 86 day period. He conceded that he would not have known whether the patient was at risk with this level of medication. In his Amended Statement the respondent said that he had instigated a plan to reduce the dosage for this patient. However, in his oral evidence the respondent said the plan was between the respondent and the GP. The plan was not in writing, other pharmacists would have not have known of it and it therefore could not have been implemented by them. 5. In his written report Mr Cotterell said that the dispensing of these drugs to this patient in the quantities and during the time period referred to did not accord with recognised therapeutic standards, was contrary to clause 54 of the Poisons and Therapeutic Goods Regulation, and fell below the relevant standard, but not significantly so. However, in oral evidence Mr Cotterell clarified this opinion by stating that he intended it to be applied to the individual supply of each of the drugs. When the dispensing history was considered in the context of the concurrent supply of both drugs during the relevant period, Mr Cotterell said that this conduct was significantly below the relevant standard. 6. We would comment that in assessing the conduct of the respondent's pharmacy Mr Cotterell has taken into account what he has described as "accepted practice is that pharmacists are just suppliers of the medication… An absence of records unfortunately is the norm in pharmacy practice, and impacts in a direct and negative manner [sic] patient outcomes." In doing so Mr Cotterell has fallen into error in assessing the appropriate standard for pharmacists by reference to the lowest common denominator, and not by reference to obligations imposed on pharmacists according to relevant law and codes of conduct. These are the standards by reference to which expert opinion should be given, and these are the standards which are adopted by this Tribunal in determining matters of this kind. 7. We are comfortably satisfied that the particulars with respect to this patient have been made out. Patient E 1. In his Amended Reply the respondent admitted paragraphs 9 and 10 of the Amended Complaint. With respect to paragraph 10(b) he said that he did telephone each of the prescribers on receipt of the first prescription for these drugs to discuss the appropriateness of the medication and the doses prescribed but conceded that he failed to make a record of these discussions. 2. In describing the circumstances surrounding the dispensing of drugs to this patient through the respondent's pharmacy the delegates of the Pharmacy Council in their reasons for decision dated 3 October 2017 said the following: 1. he was a regular patient and participated in the Opioid Treatment Program (OTP) administered by the pharmacy. He was prescribed methadone by Dr S Gupta and attended the pharmacy for his dose every Monday and Friday. In addition, he was prescribed benzodiazepines by a different doctor, Dr T Schindler. The delegates noted that clinical guidelines pertaining to the OTP cautioned against the concomitant use of benzodiazepines with methadone. Although the respondent informed the delegates that he had contacted Dr Schindler to confirm that it was appropriate to supply benzodiazepines with methadone, he had never contacted Dr Gupta; 2. the dispensing history for this patient showed that he was being supplied up to 600 tablets at the one time. The respondent explained this by saying that the patient was not always able to come to the pharmacy. The delegates commented that this explanation was "incredulous" given that the patient attended the pharmacy every Monday and Friday to obtain his methadone dose; 3. the dispensing history for this patient showed that he was given a total of 4,400 Rivotril tablets over the period July 2015 to 13 October 2016. A dose of 2 tablets twice a day should have lasted this patient about 3 years, but the supply was made over 15 months. 1. In his Amended Statement the respondent said, with respect to this patient, that the pharmacy contacted the prescriber for each medication prescribed "to verify" but did not record the conversations. This is clearly incorrect in that the respondent conceded that Dr Gupta was not contacted. 2. In his oral evidence the respondent conceded that the dispensing history for this patient was inappropriate, that he should have contacted the prescribing doctors on a regular basis, and when he was made aware by his staff that this patient suffered from epilepsy, this should have caused him to re-evaluate the medication which the patient was taking, but he did not do so. 3. In his report Mr Cotterell said that the supply of the quantity of these drugs concurrently over the period specified did not accord with recognised therapeutic standards and was significantly below the relevant standard. 4. We note that the letter of instructions to Mr Cotterell asked him to comment on the responsibilities of the respondent as proprietor of the pharmacy especially in circumstances where the patient received scripts "for OTP and S8/S4D drugs" from different practitioners. In responding to this request Mr Cotterell said that "the responsibilities of a pharmacist and proprietor are the same (although the proprietor should take the lead and inform all other locum pharmacists of the procedure and restrictions being enforced)." 5. We are comfortably satisfied that the particulars with respect to this patient have been made out. Patient F 1. In his Amended Reply the respondent admitted paragraph 11 of the Amended Complaint but stated that with respect to sub-paragraph (b) he did telephone the prescribers on receipt of first prescription to discuss the appropriateness of the medication and dosage, but he failed to record these discussions. With respect to sub-paragraph (c) the respondent said that it was his standard practice to discuss possible side-effects and the addictive effects of medication on first presentation of prescriptions. 2. The dispensing records for this patient indicated that she was prescribed methadone and received her treatment under an OTP at the pharmacy during the period 20 August 2015 to August 2017. In addition, the patient was dispensed: 1. approximately 3,650 tablets of alprazolam 2mg over the period 22 July 2015 to 10 August 2017 with directions to take 2 tablets each morning, 1 at midday and 2 at night. The respondent personally supplied this drug on approximately 13 occasions totalling 1,250 tablets; 2. approximately 75 tablets of oxazepam 30mg on 3 occasions between 18 September 2015 and 28 November 2016. The respondent personally dispensed 50 tablets on 2 occasions. 1. In his written report Mr Cotterell noted that the dispensing record did not accord with guidelines established by NSW Health. He thought that the concurrent dispensation of the drugs put the patient at considerable risk and was significantly below the relevant standard. 2. In his report with respect to this patient Mr Cotterell again commented that the responsibilities of a pharmacist and a proprietor were the same. 3. We note that the respondent was unable to provide any records of any discussions with the prescribing doctors and with the patient to corroborate the assertions made in his Amended Reply, which were made in a general manner only. 4. We are comfortably satisfied that the particulars with respect to this patient have been made out. Patient G 1. In his Amended Reply the respondent admitted paragraph 12 of the Amended Complaint. However, with respect to sub-paragraphs (b) and (c) he made the same assertions as he had made with respect to Patient F. 2. The dispensing records for this patient showed that he attended the pharmacy during the period 13 July 2015 to 10 August 2017 to receive methadone treatment and during this period he was dispensed 3,100 tablets of alprazolam 2mg. The dosing directions vary between three, four and five tablets per day. The respondent was shown as having dispensed 1,500 tablets to this patient on 15 occasions. 3. In his written report Mr Cotterell said that the concurrent dispensing of these drugs breached guidelines issued by NSW Health, placed the patient at considerable risk and this conduct was significantly below the relevant standard. 4. We note that the respondent was unable to provide any records of any discussions with the prescribing doctors and with the patient to corroborate the assertions made in his Amended Reply, which were made in a general manner only. 5. We are comfortably satisfied that the particulars with respect to this patient have been made out. Patient H 1. In his Amended Reply the respondent admitted paragraph 13 of the Amended Complaint. In his Amended Statement the respondent said that this patient suffered seizures and anxiety. 2. The dispensing records for this patient showed that he was dispensed 1,600 tablets of Rivotril 2mg over the period July 2015 to 27 November 2015 with directions to take 2 tablets twice daily over a period of 123 days. This supply equated to 400 days' supply based on the directions issued by the prescriber. The respondent is reported to have dispensed this drug to this patient on 5 occasions, totalling 1,000 tablets. 3. In his written report Mr Cotterell said that the supply of this quantity of this drug over that period indicated evidence of drug misuse. This is a matter which should have been discussed with the prescriber. This level of supply over this period was in his opinion significantly below the relevant standard. 4. We are comfortably satisfied that the particulars with respect to this patient have been made out. Patient I 1. In his Amended Reply the respondent admitted paragraphs 14 and 15 of the Amended Complaint. With respect to sub-paragraphs (b) and (c) of paragraph 15 he made the same assertions as he had made with respect to Patient F. 2. The dispensing records for this patient showed that she received methadone treatment at the pharmacy during the period 3 February 2016 to 12 March 2018 under an OTP. This patient was also being prescribed clonazepam and oxazepam by another medical practitioner, Dr Schindler, during the period 3 July 2015 to 13 June 2017. 3. The pharmacy dispensed 1,200 tablets of clonazepam 2mg during the period 10 July 2015 to 30 October 2015, a period of 112 days. This supply equated to 300 days of medication based on the prescribing instructions. The respondent supplied this drug on 2 occasions totalling 400 tablets. The pharmacy also dispensed 850 tablets of oxazepam 30mg during the period 3 July 2015 to 13 June 2017 and the respondent dispensed 500 of these tablets on 10 occasions. 4. In his written report Mr Cotterell said that the supply of 1,200 tablets of clonazepam within the timeframe demonstrated evidence of drug misuse which should have been discussed with the prescriber. This conduct was significantly below the relevant standard. In addition, the dispensing of methadone to this patient in combination with the other drugs on the dates and in the quantities set out was potentially dangerous and should have been discussed with the prescribers and the patient, especially as two different medical practitioners were involved. This conduct was also significantly below the relevant standard. 5. In his report with respect to this patient Mr Cotterell again commented that the responsibilities of a pharmacist and a proprietor were the same. 6. We note that the respondent was unable to provide any records of any discussions with the prescribing doctors and with the patient to corroborate the assertions made in his Amended Reply, which were made in a general manner only. Indeed, in his evidence before us the respondent said that he could not recall contacting the GP and he was unable to explain why he had not done so. 7. We are comfortably satisfied that the particulars with respect to this patient have been made out. Patient J 1. In his Amended Reply the respondent admitted paragraph 16 of the Amended Complaint. 2. The dispensing records for this patient show that she was supplied with 1,000 tablets of clonazepam during the period 27 August 2015 to 29 October 2015, a period of 63 days, with directions to take 2 tablets twice daily. Accordingly, this supply should have lasted for 262 days. The respondent dispensed 500 of these tablets on 5 occasions. 3. In his written report Mr Cotterell said that this level of supply showed evidence of drug misuse which should have been discussed with the prescriber. It was his opinion that this conduct overall was significantly below the relevant standard. 4. In his report with respect to this patient Mr Cotterell again commented that the responsibilities of a pharmacist and a proprietor were the same. 5. We are comfortably satisfied that the particulars with respect to this patient have been made out. The responsibility of the respondent as a proprietor of the pharmacy and the formulation of the complaints 1. The particulars pertaining to each of the patients referred to in Complaint One assert that the respondent either personally dispensed or "was responsible for" the dispensing of the relevant drugs. 2. In his Reply to the Amended Complaint, with respect to Patients A and B, the respondent admitted that the dispensing of the pseudoephedrine medication was inappropriate. He then admitted that he failed to recognise the frequency of supply as a red flag, and that he did not refer the patients to a drug or alcohol service or police. He did not admit a failure on his part to have regard to any previous history, to obtain a specific medical history, or to counsel the patients. In this regard, the Reply document prima facie addresses the totality of the conduct with respect to the dispensing of all of the tablets through the pharmacy, which would include those tablets not personally dispensed by the respondent. The remainder of the Reply document seems to be directed to the personal conduct of the respondent, and not conduct for which he was "responsible". 3. With respect to the remainder of the patients, the Reply document admits all of the paragraphs, with an explanation with respect to some of the sub-paragraphs, the details of which we have set out above. In making admissions with respect to these paragraphs concerning the remainder of the patients the respondent may be taken on a prima facie basis to have admitted that he was "responsible for" the dispensing of the medication referred to. 4. We have previously noted that the report of Mr Cotterell has addressed the responsibility of the respondent as proprietor of the pharmacy as opposed to his personal responsibility in dispensing medication. 5. The Pharmacy Board issued "Guidelines for proprietor pharmacists" in September 2015 ("the Guidelines"). Those Guidelines were said to have been developed pursuant to section 39 of the National Law in order to provide guidance to pharmacists in relation to their professional responsibilities as pharmacy proprietors. We have previously set out the provisions of section 41 of the National Law which enable us to take these Guidelines into account in determining these proceedings. 6. The Guidelines require a proprietor of a pharmacy business to: • maintain, and be able to demonstrate an awareness of, the manner in which that pharmacy business is being conducted, and • when necessary, intervene to ensure that the practice of pharmacy is conducted in accordance with applicable laws, standards and guidelines. 1. Furthermore, under the Guidelines a proprietor of the pharmacy is precluded from delegating his or her professional obligations even if he or she is not regularly present in the pharmacy, notwithstanding the business structure under which the pharmacy is owned. The responsibilities extend to requiring the respondent to assure himself that the pharmacists employed in the pharmacy comply with and adhere to the registration standards and guidelines issued by the Pharmacy Board and to make any necessary arrangements that facilitate compliance with those requirements. This extends to the implementation of appropriate risk management procedures for the operation of the pharmacy and ensuring that staff members are suitably trained and appropriately supervised to provide services, in particular with respect to goods known to be subject to abuse or misuse. Vigilance of the practice is said to include on-site visits and attendance at staff meetings at an appropriate frequency. The proprietor must ensure the procedures and policies for all services provided by the pharmacy are documented and available within the pharmacy for all staff to access and follow. 2. The respondent submitted through his counsel at the conclusion of the hearing and in the course of making submissions in reply to those of the applicant that the Amended Complaint had failed to allege that the respondent engaged in misconduct in his capacity as proprietor of the pharmacy. It was asserted that the reference to "responsible for" was not sufficient to have created an issue in the proceedings referable to this matter. On this basis it was submitted that the only matters that could be taken into account in determining these proceedings related to the personal conduct of the respondent in his personal dealings with the patients. 3. The respondent through his counsel submitted that there was nothing in the complaints which gave notice to him that he was responsible for the conduct described in the particulars by reason of the fact that he was the proprietor of the pharmacy in question. The particulars of the complaints alleged that with respect to each of the patients the respondent "personally dispensed, or was responsible for the dispensing of" the relevant medication. In his Reply the respondent had admitted these particulars with respect to patients C to J. It was submitted on his behalf that "in the absence of any particularisation of the basis upon which the allegation was made, it is not at all clear precisely what the respondent is admitting." 4. The respondent submitted that despite references by Mr Cotterell in his report to the responsibilities of a pharmacist as proprietor, these issues were not litigated in the hearing before us. It was said that the only matter raised concerning the respondent's responsibilities as a proprietor during the course of his cross examination was that he failed to check the activities of his employed pharmacists and other employees. 5. The respondent relied on observations made by Basten JA (McColl JA and Sackville AJA agreeing) in the NSW Court of Appeal in Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [45]: "Failure to formulate the complaint in appropriate terms is not a matter of pedantry or formalism. Imprecision can readily lead to false issues, evidence extending to matters which are not really relied upon and, as already noted, confusion as to the effect of the ultimate orders…" 1. The necessity for particularity in the formulation of complaints in the Occupational Division of this Tribunal has been aptly summarised, with appropriate citations to other authorities, in King v Health Care Complaints Commission [2011] NSWCA 353 by Handley AJA (McColl JA agreeing) in the following manner (at [173]-[185]): [173] Since there was no statutory or equivalent duty to formulate and particularise charges the Tribunal was bound to see that this was done as part of its common law duty of procedural fairness. [174] Thus decisions on statutory and equivalent provisions, including rules of court, which require the formulation and particularisation of criminal and like charges are not relevant. [175] A person facing disciplinary action is entitled, at common law, to reasonable notice of the charges against him and an opportunity to answer them. In The Queen v MacKellar ex parte Ratu [1977] HCA 35, 137 CLR 461, 476 Mason J said: "... in many circumstances natural justice requires that a person against whom an order is proposed to be made that will deprive him of some right or interest or the legitimate expectation of some benefit is entitled to particulars of the case sought to be made against him." [176] In Kioa v West [1985] HCA 81, 159 CLR 550, 582 Mason J said that a person in such a position: "is entitled to know the case sought to be made against him and to be given an opportunity of replying to it". [177] In Smith v NSW Bar Association [1992] HCA 36, 176 CLR 256, 269 Brennan, Dawson, Toohey & Gaudron JJ said: "... procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made." [178] In Sabag v HCCC [2001] NSWCA 411; Gad v HCCC [2002] NSWCA 111, and Daskalopoulos v HCCC [2002] NSWCA 200 this Court held that the Tribunal's findings of professional misconduct involved a denial of procedural fairness. [179] In Sabag Sperling J, giving the principal judgment for the majority, referred [83] to the requirement in s 43 that any complaint must contain particulars of the allegations on which it is founded. He continued: "The primary function of particulars is to apprise the opposite party of the case to be met. There is a special need for particulars in disciplinary proceedings ... because of the elements of degree and judgement involved in a finding of professional offence ... The particulars of the complaint must specify the conduct relied upon sufficiently to apprise the person not only of the bare facts relied upon but also of those aspects of the conduct relied upon as satisfying the elements of degree and judgment which are involved." [180] Sperling J, who with Beazley JA, held that there had been a denial of procedural fairness did not base his decision on the formal complaint alone. He said [106]-[107]: 106. There was nothing in the complaint giving notice ... of either of these two matters ... as conduct to be relied upon as constituting or contributing to the professional offences charged. There was no such notice in the opening address by counsel for the complainant ... It was not put to the appellant in cross-examination by the Tribunal ... Neither of the ... matters was put to the Tribunal in the closing address by counsel for the complainant, as elements of the complainant's case ... The Tribunal itself did not raise these matters for consideration before giving its decision. 107. In short, the appellant had no notice that these matters would be or might be relied upon by the Tribunal as constituting or contributing to its ultimate findings. The appellant did not have an opportunity to be heard in relation to those matters." [181] In his dissenting judgment Davies AJA found otherwise because the issue had "emerged at the trial and ... been litigated". The majority found [116] that the issue had not been litigated. [182] In Gad (above) Stein JA, who gave the principal judgment, said [44] that "it was necessary to bring home to the appellant that it was the respondent's case that his records were not simply inadequate, but falsified so as to mislead". He relied [47] among other things on the failure to cross-examine the practitioner on the issue. [183] In Daskalopoulos (above) Hodgson JA, who gave the principal judgment, referred [50] to "the requirement of clarity in allegations made against persons charged with professional misconduct and/or unsatisfactory professional conduct." He found a denial of procedural fairness because of [53] "the difference between the particular and the finding, and the lack of any clear formulation during the hearing of any amended particular or allegation in relation to that particular." [184] In HCCC v Karalasingham [2007] NSWCA 267 at [27]-[31], and Lucire v HCCC [2011] NSWCA 99 at [42]- [45] Basten JA criticised "pleadings", i.e. Notices of Complaint, in the present form, and pointed to the difficulties they created. However the Court did not decide that the "pleadings" had caused a denial of procedural fairness. [185] In my judgment there was no breach of the common law duty of procedural fairness in this case. The appellant and his advisers could not have been in any doubt that the Commission, and the two patients, were alleging professional misconduct based on his intimate examinations, including what had happened during the "extended periods" when his finger(s) were inside their vaginas. 1. In submissions counsel for the applicant rejected the assertions made on behalf of the respondent that the hearing before us had been conducted in a manner which did not raise the question of the responsibility of the respondent for what occurred in the pharmacy in his capacity as proprietor. In support of the submissions the applicant relied on the following: 1. in his Amended Statement the respondent referred to processes put in place in the pharmacy for the training and monitoring of other pharmacists for the dispensing of pseudoephedrine; 2. the respondent made admissions "as one of the proprietors of the pharmacy" that he did not adequately ensure the supply of products was always appropriate and that staff were cognisant of abuse of products; 3. the respondent conceded he did not exercise or cause to be exercised proper independent judgment by his staff, to ensure the supply of medication was appropriate for patients and met therapeutic thresholds; 4. the expert report of Mr Cotterell clearly addressed the responsibilities of a pharmacist and a proprietor pharmacist; 5. in cross examination the respondent was asked questions concerning his obligations as a proprietor, particularly with respect to the supervision of dispensing rules for pseudoephedrine, whether a pharmacy assistant was responsible for dispensing pseudoephedrine, the creation of written procedures for dispensing pseudoephedrine and his failure to ensure that dispensing rules were being followed by employees; 6. the evidence given in the proceedings clearly differentiated between medication dispensed by the respondent personally and that dispensed by others, all of which was clearly relevant to the conduct of the proceedings. 1. Counsel for the applicant submitted that no objection was raised during the course of the hearing to any of these areas of cross examination. Indeed, the matter was not raised as an issue until after the close of the evidence, and only in the course of submissions made in reply to those of the applicant. 2. We observe that the "responsibility" of the respondent for the actions of persons employed in the pharmacy can arise in at least two ways. The first is by reason of the respondent's obligations as an employer of those persons. The second is by reason of the respondent's status as a proprietor of the pharmacy. 3. The documentation provided by way of evidence in these proceedings is to the effect that expressions of concern and allegations of misconduct about the conduct of the pharmacy which is the subject of these proceedings have always been accepted by the respondent as being his responsibility. For example, the reasons for decision of the delegates of the Pharmacy Council published on 3 October 2017 refer to representations made by the respondent that he accepted responsibility for the various deficiencies in the conduct of the pharmacy which included matters which are the subject of these proceedings. In a submission to the delegates dated 24 August 2017 the respondent referred to the investigations carried out by the PRU and said in part: "… I accept that prior to the investigation by the PRU I failed to consistently maintain, and failed to ensure that the pharmacy maintained, records in a manner that adequately recorded conversations with prescribing doctors and/or the supplied pseudoephedrine products to customers. Since becoming aware of this investigation I have reviewed my obligations as a professional pharmacist and have realised that my practice, and the pharmacy's practice, in that regard was inconsistent with professional practice standards. Therefore I have implemented immediate steps to improve my dispensing my personal dispensing procedures [sic] and the dispensing procedures adopted by the pharmacy." 1. In their decision the delegates clearly proceeded on the basis that the respondent bore responsibility for all of the conduct within the pharmacy, which position was consistent with that taken by the respondent himself. 2. The evidentiary material provided to us in these proceedings included the Guidelines for proprietor pharmacists issued by the Pharmacy Board, and reference to this material was made during the course of the hearing. 3. It is true, as the respondent alleged, that the complaints and particulars thereof, in referring to the responsibility of the respondent, do not contain the words "in his capacity as proprietor of the pharmacy" and if they had done so, the respondent could have had no basis to have made these submissions. However, notwithstanding the absence of these words, we have proceeded to deal with these proceedings on the basis that the allegations made against the respondent concerning areas of his responsibility had their genesis in the respondent's role as proprietor of the pharmacy business. The proceedings were undoubtedly conducted on this basis by the applicant, and we apprehend that they were similarly conducted by and on behalf of the respondent. In his evidence the respondent acknowledged his role as a proprietor. No complaint was made during the hearing of the evidence by him or by counsel on his behalf that there was a lack of understanding of what was meant by the use of the words "responsible for" contained in the complaints and particulars. 4. We conclude on the basis of the matters that we have referred to above that at all times the respondent was aware that with respect to those particulars of Complaints One and Two which referred to matters for which he was "responsible" that this was a reference to responsibility which reposed upon him as a proprietor of the pharmacy in question. The Amended Complaint should be construed in this way. In addition, the evidence tendered in the hearing from both the applicant and the respondent and the hearing of the proceedings have been conducted on this basis. Accordingly, we find that there has been no denial of natural justice, nor has any other matter arisen which would justify the respondent asserting that in some way he has not been given reasonable notice of the charges brought against him, including the particulars thereof, and that he has been denied the opportunity of defending those charges. In so concluding we refer again to the extract from King v Health Care Complaints Commission at [89] above. 5. It is arguable that the conclusion which we have reached is an interlocutory decision as that term is defined in section 4(1) of the Civil and Administrative Tribunal Act 2013 (NSW). If so, section 165B(5A) of the National Law provides that this Tribunal may be constituted by the presiding member sitting alone. 165B Constitution of Tribunal for complaints, applications and appeals [NSW] … (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). 1. To avoid any doubt about the authorship of the conclusion just expressed we indicate that it represents a conclusion of all of the members of the Tribunal, as well as a conclusion previously reached by the presiding member independently of any communication of any kind with the other members. 2. It follows that we are comfortably satisfied that all of the particulars with respect to Patients A and B have been made out. Is the respondent guilty of unsatisfactory professional conduct? 1. Having found that Complaint One and the particulars thereof have been proven to the requisite standard we now come to determine whether or not the respondent's conduct constitutes unsatisfactory professional conduct. In so doing we shall consider all of the findings made in the aggregate. 2. Unsatisfactory professional conduct is defined in the National Law in section 139B which we reproduce in part: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 1. Based on the opinion of Mr Cotterell, and acknowledging the admissions made by the respondent, we have no hesitation in finding that the respondent is guilty of unsatisfactory professional conduct with respect to each of the 10 patients whose circumstances are the subject of Complaint One. His knowledge, skill and judgment and care exercised in the practice of the pharmacy is significantly below the standard reasonably expected of a pharmacist of an equivalent level of training and 18 years' experience in operating a pharmacy. Is the respondent guilty of professional misconduct? 1. Complaint Two asserts that the respondent is guilty of professional misconduct. That expression is defined in section 139E of the National Law in the following terms: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The discriminating factor which changes unsatisfactory professional conduct to professional misconduct is that it is sufficiently serious to justify suspension or cancellation of registration. Suspension or cancellation of registration is part of the armoury of protective orders that this Tribunal may make consequent upon a finding of professional misconduct. The orders which can be made must be protective in nature, having regard to the health and safety of the public. The underlying principles have been succinctly summarised in the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. Meagher JA (Basten and Emmett JJA agreeing) said: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [36] In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." [37] In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Some assistance in exercising the value judgment which is inherent in determining whether unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct is provided in the judgment of Basten JA (Leeming JA agreeing) in the NSW Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct…" 1. We proceed on the basis that it is appropriate to consider all of the findings that we have made in the aggregate. In so stating we should not be taken to have determined that there are no individual findings which in themselves would justify a determination that the respondent is guilty of professional misconduct. Indeed the respondent's misconduct with respect to each of the patients as particularised against him is of a most serious nature. 2. We agree with submissions made by the applicant that the findings which we have made are indicative that: 1. with respect to Patients A and B, excessive amounts of pseudoephedrine were dispensed, the pharmacy did not have in place a proper procedure for the dispensing of these products, some may have been dispensed by an unqualified pharmacy assistant, and there was no effective or proper oversight or enforcement of compliance with the regulations regarding dispensing of these products; 2. with respect to Patient C the respondent lacked knowledge about, and failed to inform himself about, the potential for abuse of anabolic steroids, made limited or no efforts to contact the prescriber to verify that their use and dosage was for an appropriate therapeutic purpose, the patient was placed at considerable risk, there was no documentation made of any contact with the prescriber, and the respondent allowed the medication to be dispensed for a period of two years; 3. with respect to Patient D the respondent made limited or no efforts to contact the prescriber to verify that the usage and dosage of clonazepam and nitrazepam were appropriate, and the dispensing of these drugs to this patient should have alerted the respondent and others in the pharmacy that this patient was at risk; 4. With respect to Patients E, F, G, H, I and J, all six were on an Opioid Treatment Program and five attended the pharmacy for dispensing of methadone. Each of them was exposed to a risk of harm, neither the respondent nor anyone employed in the pharmacy made appropriate efforts to contact the prescribers to verify that the use and dosage of benzodiazepines were appropriate, no effort was made to contact the methadone prescribers about concurrent or high use of benzodiazepines, the respondent seemed content to rely upon advising patients about the risk of the use of these medications and allowing them to make their own decisions about this, there were no systems in place to audit dispensing records or ensure that regulatory obligations were being complied with, there was no documentation in place regarding contact with prescribers, and if the respondent was aware of the likelihood of abuse of benzodiazepines by these patients he continued to allow the medication to be dispensed. 1. We find that in the aggregate the misconduct of the respondent personally and separately in his capacity as proprietor of the pharmacy was such that it constitutes professional misconduct, because it justifies the suspension or cancellation of his registration. The misconduct when taken as a whole is such that it is incompatible with the safe and appropriate dispensing of medication to the public, it reflects a lack of appropriate knowledge about the potential risk of harm associated with the medications which are the subject of the Amended Complaint, it demonstrates a failure to operate the pharmacy with appropriate protocols and processes to protect the safety of the public, and a cavalier disregard for the importance of keeping and maintaining appropriate records. It is incompatible with the privilege of being entitled to practice as a pharmacist. On this basis cancellation of registration is justified. Appropriate protective orders 1. It is now necessary to determine what protective orders should be made consequent upon the finding of professional misconduct which we have made. We have previously set out the principles which are to be applied in framing appropriate protective orders. Most significantly, it is necessary to protect the interests of the public and in the case of a pharmacist the interests of current and potential patients. In addition, protective orders are appropriate to deter the respondent and other pharmacists from engaging in the same or similar conduct. Finally, it is necessary to uphold public confidence in the high standards and integrity of the pharmacy profession. 2. Comments of this Tribunal in Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 concerning the professional responsibilities of pharmacists, including their interaction with medical practitioners, are relevant to our consideration, albeit that there are some factual differences to the circumstances of these proceedings. At [54] and following the Tribunal said: [54] Mr Elliott was dispensing considerable quantities of Sch 8 drugs over a lengthy period, but especially in 2013 and 2014. In our view, in those circumstances any trained pharmacist operating at the general standard required of his or her profession would have become highly attuned and attentive to the potential risks of dispensing such quantities of drugs. In particular, it would be reasonable to expect an experienced pharmacist to be alert to the possibility – perhaps even the probability – that some of the patients were likely to be opioid-dependent and therefore more likely than other patients to simulate symptoms in order to obtain prescribed drugs, to involve themselves in "doctor shopping" or to misuse drugs. [55] Pharmacists are gatekeepers with responsibility, among other things, for dispensing drugs of addiction. To assist them in that serious task, regulations and guidelines are imposed so that the very real risks involved in dispensing drugs of addiction can be managed and mitigated. As the National Law emphasises, the protection of the public is paramount. And some members of the public, such as drug dependent patients, need protection from themselves. Medical practitioners and pharmacists share significant responsibility and are required to exercise their individual clinical judgments to ensure that individual consumers and the public are protected. The more experienced a pharmacist becomes, the better that practitioner's judgment might be expected to be. A pharmacist's failure to be attentive, or sufficiently attentive to the self-evident risks of dispensing Sch 8 drugs, undercuts the protective structure which the regulations and guidelines are intended to erect for the benefit of individual patients and the community as a whole. [56] When compounded by a pharmacist's effective failure to exercise clinical judgment by, for example, not raising appropriate concerns with prescribing doctors (who may themselves be falling short of professional standards), the protective structure is rendered virtually useless. This would reduce a pharmacy almost to a supermarket level where customers can help themselves to whatever they want, no questions asked. In this case, even his own expert, Mr Regoli, considered that Mr Elliott had fallen significantly short of the standards required. [57] Although failure to comply with regulations and guidelines might well evidence a fall from appropriate standards, professional standards in the health professions are not to be measured merely by compliance. The ultimate benchmark against which the professional conduct of health practitioners will be measured is the protection of the public. If the relevant conduct of a health professional fails to protect the public, and falls significantly short of the standards required to do so, or poses a real risk to the health and safety of the public, it might well justify suspension or deregistration because the community ought not be exposed to the risk inherent in such failures. Whether such a step is taken as a consequence will depend on the circumstances… 1. The applicant submitted that the appropriate protective order in all the circumstances is cancellation of the respondent's registration. We are empowered to make such an order by reason of section 149C of the National Law which provides in part: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (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; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. The respondent's evidence relevant to protective orders 1. In his statement prepared for the purpose of these proceedings the respondent commented on the circumstances relating to each of the patients. With respect to Patients E to J the respondent conceded that he "did not exercise or cause to be exercised by my staff, proper independent judgement for these patients to ensure that the supply of the medication was appropriate, particularly when the supply did not meet therapeutic thresholds." He said that he now understood that he must form his own independent view about the appropriateness of the supply and enter a note of his decision into the patient's file. 2. Significantly, he said that: "For those patients who are concurrently prescribed Methadone and one or more s4D medications, I would and do direct a member of the staff to contact all persons prescribing for the patient." 1. In addition, the respondent said that he actively takes steps to keep up-to-date with material concerning the misuse of medications by the public, and that he has "invested much time and effort in reading extensively" with respect to risky, harmful interactions between medications. He said that he reviewed certain publications annually and makes sure that all of his pharmacists did so. 2. Significantly, the respondent also referred to the PRU investigation conducted in 2016 and said that since this had occurred all Schedule 4D and 4B medications are kept in a separate, locked storage area. 3. The respondent said that he conducted regular meetings with his pharmacists and encouraged them to refresh themselves about the regulations and guidelines concerning, in particular, the dispensing of controlled and restricted medication. 4. In referring to changes made to the recording of the sale of pseudoephedrine and of conversations with prescribing doctors in the pharmacy's computer software, the respondent said that it was important to have detailed and thorough dispensing procedures in place and that he took his professional obligations as a community pharmacist seriously and wished to ensure that his pharmacy dispensing procedures are of the highest standard. 5. Significantly, also, the respondent concluded his statement with the following: "I intend to never repeat the mistakes that I have made and look to constantly improve moving forward with patient and public safety my top priority. I enjoy serving the community as a pharmacist and hope to do so for many years to come." 1. We have earlier set out at [108] a brief summary of the nature and effect of the misconduct of the respondent. This misconduct pervades a number of areas of the respondent's practice as a pharmacist and a number of areas concerning the operation of the pharmacy, for which the respondent had ultimate responsibility as a proprietor. 2. In addition, there are features of the respondent's conduct and the evidence which he has provided during the hearing of these proceedings which give us cause for concern about his attitude to what occurred, what prompted him to conduct himself in the manner in which he did, and his truthfulness in dealing with the evidence provided by the applicant. Examples of these matters are contained within paragraphs [32], [33], [34], [40], [45(2)], [46] and [71]. We conclude that the respondent was prepared to give some of his evidence in a self-serving manner, describing circumstances which were implausible, all in the context of conduct which created a serious potential risk to the health and safety of patients. The 2005 inspection 1. Furthermore, this conduct which occurred during the period 2015 to 2017 was not the first occasion on which the conduct of the respondent has come to the attention of the regulatory authorities, as is revealed in material included within the evidence tendered before us. On 28 November 2005 the respondent sought approval to administer buprenorphine to another pharmacy with which he was then associated. An inspection of that pharmacy was carried out by members of the Inspections and Investigations Unit on 16 December 2005. The respondent was unable to produce a drug register or subsidiary drug register, because he said they were at his home. He had a "rough copy" consisting of a spiral-bound book which was incomplete in that it did not record prescription numbers, the prescriber's name, or the signature of the dispensing pharmacist. The respondent said that the registers were two or three months in arrears in being written up. 2. The inspectors endeavoured to access the respondent's computer records for specific patient profiles and to run some drug reports. The respondent said he could not access those records. He produced an exercise book which recorded Schedule 3 drugs, from which a page had been torn out except for a small corner. The respondent said that a staff member must have done this. 3. The inspectors then ascertained that: 1. prescription medications were being dispensed by a pharmacy graduate without being checked by the respondent. He explained that this had occurred because he was busy attending to the inspectors and that he usually did check medications prior to them being supplied to patients; 2. a patient was being dosed with methadone on a prescription that had expired, with no notation that permission had been given to continue the dosage. The respondent explained that this was an "oversight"; 3. two methadone prescriptions had been given to a patient with a change of dose. Nothing had been written in the "rough" register to indicate that the patient had been given any dosage and there was no reference to the change in dosage; 4. because of the method of storing the prescriptions it was unlikely that they were referred to at the time that a dose was administered and a few patients were dosed while the inspectors were present without any referral to the prescriptions at that time; 5. previously expired or superseded prescriptions were not marked as cancelled; 6. incorrect notations were made of the amount of methadone administered; 7. 6 1-litre bottles of methadone were found located in the back room in a cardboard box with an indicative delivery date of 28 November 2005. An additional bottle was located in a box in the dispensary, and three unopened one-litre bottles were found in another box, none of which were stored in the drug safe. The respondent explained that he was busy and had not got around to putting these drugs in the safe. However, the inspectors noted that that quantity of methadone would not fit into the safe; 8. upon being asked why he required 10 one-litre bottles of methadone to be administered to 12 patients the respondent was unable to provide an answer. The inspectors seized nine of these bottles; 9. the cloudy, sticky and "somewhat opaque" methadone pump bottle had not been washed for about two months and had not been calibrated because the respondent said he did not know how to do this; 10. the respondent normally left the keys in the safes; 11. the respondent was unable to provide satisfactory explanations for the existence of a number of labelled half-used medications in the names of various patients, and some without any labels. 1. On the occasion of a later visit the respondent informed the inspectors that he had thrown out the "rough copy" of the drug register into the garbage at his home because it was no longer needed. At the same time the respondent informed the inspectors that he had ripped out part of the page of his handwritten records because he said that he did not want the inspectors to become "confused". 2. The respondent conceded to the inspectors that he was in arrears in writing up his main methadone drug register. In addition, he had included a number of negative numbers because his methadone orders were "always short period". 3. Also included in the evidentiary material before us are notations concerning a patient who complained that the respondent had failed to provide her with methadone because he said that he had already dispensed it to her when, as she asserted, he had not done so in circumstances where there was no record of it having been dispensed. 4. Based on the opinions of the inspectors contained in this material, it is obvious that there were then a significant number of deficiencies in the respondent's practice as a pharmacist in that pharmacy. The respondent was unable to provide satisfactory explanations as to the cause of these deficiencies. 5. During the course of cross examination in these proceedings the respondent was asked what action he had taken following the findings of the inspectors made in 2005. He said that he had taken action but could not recall what that was. Consideration of the respondent's evidence 1. The respondent provided a character reference from Dr F Sipeli, general practitioner of the Windsor Street Family Practice, which is unfortunately undated. Dr Sipeli said he had known the respondent for over 10 years and regarded him as a highly respected pharmacist within the community. He said his patients valued the respondent's "professionalism and service" and that he was regarded as being very friendly and approachable. The reference notes that the respondent has expressed his "sincere remorse in regards to what has happened" but does not describe at all the circumstances to which it relates. The reference notes information given to the author by the respondent that he has undertaken more continuing professional education and has changed his way of practice. There is a notation that "there has been a noticeable increase in communication between the pharmacy and our surgery." Dr Sipeli described whatever had happened as being "highly out of character". 2. We do not regard the reference provided by Dr Sipeli as providing any assistance to us, in the absence of any description of the circumstances which gave rise to its creation. 3. We do not regard the respondent as having provided any satisfactory explanation for the conduct in which he engaged which is the subject of these proceedings. We note the extensive nature of the misconduct described in the reports relating to the investigations carried out in 2005. Prima facie it is indicative of carelessness, lack of requisite knowledge and overall disregard by the respondent of his professional responsibilities. The same descriptions are apposite to the misconduct of the respondent which is relevant to these proceedings. This is misconduct which occurred some 10 years later. 4. The respondent has provided us with his bare assertions that he is contrite and remorseful for what occurred. He has stated that he has put in place protocols and procedures with a view to ensuring that these problems will not occur in the future. The respondent has asked us to proceed on the basis that he now acknowledges all of these shortcomings and has expressed regret that they occurred and that he has taken steps to ensure that they will never happen again. But we have not been given any appropriate evidence corroborative of the steps that have been taken. 5. We repeat the last words of the written statement prepared by the respondent for the purpose of these proceedings: "I intend to never repeat the mistakes that I have made and look to constantly improve moving forward with patient and public safety my top priority. I enjoy serving the community as a pharmacist and hope to do so for many years to come." 1. The difficulty that we find in considering this extract is that the respondent has never endeavoured to explain why it was that he made "the mistakes" to which he has referred. Prima facie the respondent's "mistakes" which are the subject of these proceedings pervade the totality of his practice as a pharmacist, and his conduct is inconsistent with the proper and safe practice of his profession. And as we have previously pointed out, there were mistakes of a similar kind evident in 2005. Because we have not been provided with any evidence from the respondent or any professional person consulted by him concerning his behaviour, such as a psychologist, mentor or counsellor, about what it was that caused him to make these "mistakes", and why he had not learned from his 2005 experience as late as 2015 to 2017, it is difficult, if not impossible, to accept that the respondent has undergone a reformation of character. 2. In the NSW Court of Appeal in Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461 Walsh JA held: "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. The respondent has not provided any proof that he has now established himself as a different practitioner. We can have no confidence that the respondent is unlikely to engage in similar misconduct in the future. 2. This leads to the conclusion that in all the circumstances it is appropriate in the interests of the health and safety of the public that the respondent's registration be cancelled. Review period 1. By section 163A of the National Law we are empowered to fix a period during which the respondent is precluded from seeking a review of the cancellation of his registration. Section 163A provides as follows 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of— (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made— (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section— decision-making entity means the following— (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C (1) (f); (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court; (f) a review body in New South Wales, when deciding a matter under section 127A. relevant order, in relation to a person, means any of the following orders made by a decision-making entity— (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 1. The applicant suggested that an appropriate review period of two years would enable the respondent to engage in a process of rehabilitation. Given that we are unsure about why the respondent engaged in the conduct that he did, it is difficult to assess a relevant review period. We are concerned that, because the respondent has not chosen to provide any appropriate explanation for his conduct and any evidence in support of such an explanation, a period of two years may be inappropriate. However, given that this is the period suggested by the applicant and given that we propose appointing this Tribunal as the appropriate review body, we are prepared to accede to this suggestion. Costs 1. This is a costs jurisdiction and the applicant sought a costs order in its favour. The respondent made no submissions to resist such an order. We are not aware of any circumstances which would disentitle the applicant to a costs order in its favour, and we propose to make an order accordingly. Orders 1. We make the following orders: 1. The registration of the respondent as a pharmacist is cancelled. 2. We fix a non-review period under section 163A(3)(a) of the Health Practitioner Regulation National Law (NSW) of 2 years. 3. The review body under section 163A is this Tribunal. 4. The respondent is to pay the costs of the applicant assessed in default of agreement. ********** 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: 14 April 2021