Health Care Complaints Commission v Ashour [2021] NSWCATOD 165

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ashour [2021] NSWCATOD 165 Hearing dates: 26 – 28 April 2021 Date of orders: 20 October 2021 Decision date: 20 October 2021 Jurisdiction: Occupational Division Before: A Britton, Deputy President B Radojkovic, Senior Member M Steffensen, Senior Member J Barker, General Member Decision: (1) Mr Ashour's registration is suspended for a period of six months. (2) After the period of suspension, the following conditions are imposed on the practitioner's registration: Restrictions on supply, dispense or compound (a) Must not supply, dispense or compound or allow the supply, dispensing or compounding of any pharmaceutical products containing any of the following at any pharmacy in which the practitioner has a financial interest: (i) Somatropin (ii) Testosterone (iii) Mesterolone (iv) Anastrozole except for an approved indication as specified for that product on the Australian Register of Therapeutic Goods. (b) Must not compound or allow the compounding of a medicine (whether prescribed or not) at any pharmacy in which the practitioner has a financial interest that would be a close formulation to an available and suitable commercial product where it is unlikely to produce a different therapeutic outcome to the commercial product. (c) Mr Ashour is to accept an auditor appointed by the Pharmacy Council of NSW (the Auditor) with the first audit or risk assessment to occur within 6 months and thereafter annually for a further 2 years. (d) The Auditor is to conduct his or her audits into the supply, dispensing or compounding of Schedule 4B drugs, somatropin and anastrozole. (e) The audits are to be provided to the Council. (f) Mr Ashour is to meet the costs of the audits. Mentoring (g) Mr Ashour is to undergo mentoring by an experienced pharmacist approved by the Council for a period of 12 months or for any further period as determined by Council and at the frequency and terms determined by Council. (i) Mr Ashour is to provide to the mentor approved by Council a copy of the Tribunal's decision and reasons of the proceedings. (ii) Mr Ashour is to provide a mentoring plan to the Council for approval. (iii) At each meeting Mr Ashour is to review and discuss his practice with his approved mentor with a particular focus on: (A) Management of his pharmacy practice (B) Duties and responsibilities as a proprietor pharmacist (C) Supervision of pharmacy staff (D) Legal requirements regarding compounding (E) Adequacies of policies and procedures (F) Compliance with his obligations under the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW) (iv) Mr Ashour is to authorise the mentor to provide reports at the frequency determined by Council and at the conclusion of the mentoring period to Council about his professional conduct. (v) Mr Ashour is to meet all costs associated with the mentoring conditions. Education (h) Mr Ashour is required to complete a course focusing on "complex compounding" as defined by the Australian Pharmaceutical Formulary Handbook 25, as approved by the Council: (i) Within 4 weeks of completing the course the practitioner is to provide documentary evidence of completion of the course to the Council. Attendance at pharmacies (i) Mr Ashour is to physically attend each pharmacy at which he is the sole proprietor pharmacist on average once a week for 48 weeks of the calendar year. (j) Mr Ashour is to supply documentary evidence to the Council of the attendances upon request. Review of pharmacies (k) Mr Ashour is to accept the appointment of a person approved by the Council (the Reviewer) to conduct a review of the current policies of each pharmacy in which he is a proprietor pharmacist within 3 months. (l) Mr Ashour is to implement any proposed changes suggested by Reviewer. Catchwords: HEALTH – professional registration and discipline – professional misconduct – appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Therapeutic Goods Act 1989 (Cth) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Elias [2019] NSWCATOD 19 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Kennedy [2017] NSWCATOD 72 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 Health Care Complaints Commission v Saab [2020] NSWCATOD 145 Health Care Complaints Commission v Tamer [2021] NSWCATOD 164 Health Care Complaints Commission v Visvis [2020] NSWCATOD 87 Lee v Health Care Complaints Commission [2012] NSWCA 80 Ng v Health Care Complaints Commission [2017] NSWSC 53 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: NSW Health, Approved systems for recording the supply of substances on prescription generally or in an emergency to health professionals (document TG50/6, November 2015) Pharmacy Board of Australia, Code of Conduct for Pharmacists (March 2014) Pharmacy Board of Australia, Guidelines for dispensing of medicines (August 2010) Pharmacy Board of Australia, Guidelines for dispensing of medicines (December 2015) Pharmacy Board of Australia, Guidelines for proprietor pharmacists (September 2015) Pharmacy Board of Australia, Guidelines on Compounding of Medicines (March 2015) Pharmacy Board of Australia, Guidelines on responsibilities of pharmacists when practising as proprietors (December 2010) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Samer Ashour (Respondent) Representation: Counsel: D Fuller (Applicant) DA Lloyd SC (Respondent)