Health Care Complaints Commission v Foster [2022] NSWCATOD 7

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Foster [2022] NSWCATOD 7 Hearing dates: 15 December 2021 Date of orders: 20 January 2022 Decision date: 20 January 2022 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member D North OAM, Senior Member A Aylott, Senior Member Dr R Leontini, General Member Decision: Consequent upon the finding of professional misconduct which we have made we make the following orders: (1) the registration of the respondent as a pharmacist is suspended for a period of six months from this date. (2) the respondent is to attend for treatment by a psychologist of his choosing. The frequency of treatment is to be determined by the treating practitioner. The respondent: (a) is to authorise the treating practitioner to inform the Pharmacy Council of NSW of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; or (iii) a significant change in health status (including a significant temporary change); (b) must provide the Council with the professional details of the treating practitioner; and (c) must provide evidence to the Council of his attendance with the treating practitioner within fourteen (14) days of returning to practice. (3) the respondent is to submit to an audit of his practice, by a person or persons nominated by the Pharmacy Council of NSW and: (a) the audit is to be held within 3 months from recommencement of practice and subsequently as required by the Council; (b) the auditor(s) is to assess his compliance with good record keeping standards, legislative requirements and compliance with good dispensing practice; (c) the auditor(s) should pay particular attention to dispensing, administering and recording of drugs of addiction and drugs of dependence; (d) the respondent is to authorise the auditor(s) to provide the Council with a report on their findings; and (e) the respondent is to meet all costs associated with the audit(s) and any subsequent reports. (4) the respondent is to complete within 12 months of this date the 'Ethics and Dispensing in Pharmacy Practice' course by the Pharmaceutical Society of Australia (PSA). (a) Within 3 months of this date, he must provide evidence to the Pharmacy Council of NSW of his enrolment in the abovementioned course. (b) Within 3 months of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (c) He is to bear responsibility for any costs incurred in meeting this condition. (d) In the event that the course is unavailable, the respondent must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from this date. (5) the respondent is to nominate an experienced registered pharmacist to act as his professional mentor for approval by the Council in accordance with any mentoring policy adopted by the Council from time to time. (a) The respondent is to be mentored for a minimum period of 12 months and subsequently as determined by the Council. (b) The respondent is to participate in meetings with the mentor on a monthly basis. At each mentoring meeting, the respondent is to include discussion of the issues highlighted in the Tribunal's decision, his personal and professional development, and any personal and/or practice issues as they arise. (c) The respondent is to authorise the mentor to report, in an approved format, to the Council on a quarterly basis. (d) The respondent is to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the respondent, or his compliance with any conditions on his registration. (e) The respondent is to meet the costs of this condition. (6) the respondent is to forward evidence to the Pharmacy Council of NSW within 14 days of commencing work as a pharmacist or changing a place of work that he has provided a copy of these conditions to his employer. This condition is to continue to apply for such period as is determined by the Council. (7) the respondent is to pay the costs of the applicant in an amount assessed in default of agreement. Catchwords: HEALTH - professional registration and discipline – pharmacist inappropriately dispensed regulated drugs of addiction and prescribed restricted substances - imposition of disciplinary sanction following finding of professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) ss 139B,139E,141,149A,149C,150,150A,165H Poisons and Therapeutic Goods Regulation 2008 (NSW) cll 54,109 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 Lee v Health Care Complaints Commission [2012] NSWCA 80 Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep) Texts Cited: Australian Medicines Handbook (21st ed, 2020) Pharmacy Board of Australia, "Code of Conduct" (March 2014) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Peter James Foster (Respondent) Representation: Counsel: D Fuller (Applicant)