Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hallani [2022] NSWCATOD 87 Hearing dates: 12 May 2022 Date of orders: 5 August 2022 Decision date: 05 August 2022 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President P Murney, Senior Member A Aylott, Senior Member B Seth, General Member Decision: 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law ("the National Law") the registration of Mohamed Michael Hallani ("the practitioner") is cancelled. 2. Pursuant to s 149C(7) of the National Law the practitioner may not apply for a review of Order 1 for a period of eighteen months from the date of these orders. 3. The practitioner shall pay the costs of the Health Care Complaints Commission as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW) 4. The interim non-publication order made 16 May 2022 is discharged. Catchwords: HEALTH – Registered health practitioner – professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed). Poisons and Therapeutic Goods Act 1966 (NSW) Cases Cited: Briginshaw v Briginshaw 1938 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Geary [2018] NSWCATOD 15 Health Care Complaints Commission v Naamo [2021] NSWCATOD 109 Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Sare [2018] NSWCATOD 190 Health Care Complaints Commission v Thomas [2019] NSWCATOD 163 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449) Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mohamed Michael Hallani (Respondent) Representation: Counsel: A Bhasin (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2021/00051916 Publication restriction: On 16 May 2022 an order was made on the Tribunal's own motion pending further order restricting the publication of the name of the practitioner or any material which would identify him. This interim non-publication order is discharged on the 5th of August 2022. REASONS FOR DECISION Introduction 1. Mohamed Michael Hallani (the practitioner) is a provisionally registered pharmacist. After his graduation in 2018 he was employed as an intern pharmacist at a pharmacy at Penrith, NSW. Following an audit at the pharmacy in 2019 a complaint was made to the Health Care Complaints Commission (the HCCC) that the practitioner had stolen drugs of addiction. 2. The HCCC investigated the complaint and on 28 February 2021 lodged an Application for disciplinary findings and orders with an annexed complaint in the Tribunal. After further investigation, the original complaint was amended, and an amended complaint was filed in the Tribunal on 21 January 2021. 3. Despite regular correspondence to the practitioner from both the HCCC and the Tribunal he did not participate in directions hearings nor, as directed, did he file a Reply or any material in the proceedings apart from a medical report dated 7 April 2021 of Dr Tim Ho, Pain and Rehabilitation Specialist. The practitioner did however, as requested by the HCCC, attend on a psychiatrist, Dr Anthony Samuels, on 7 April 2022 for the purposes of the preparation of an expert report. 4. The practitioner did appear at the hearing and gave some oral evidence to the Tribunal. We also had the benefit of oral evidence from Dr Samuels. 5. At the hearing we made an interim non-publication order in respect of the practitioner's name. In orders made at the conclusion of the hearing, we provided for the practitioner to file any application for a non-publication order within 21 days of the hearing and for the HCCC to file and serve any material in support of, or in opposition to, such an order 14 days after compliance by the practitioner of the order in his favour. No application was received from the practitioner. 6. In the amended complaint the HCCC allege that the practitioner has engaged in unsatisfactory professional conduct under s 139B(1)(l) of the National Law being improper or unethical conduct in the practice of pharmacy, that pursuant to s 144(e) of the National Law he is not "otherwise a suitable person to hold registration", and that he is guilty of professional misconduct under s 139E of the National Law. The fourth complaint agitated by the HCCC is that the practitioner suffers an impairment as defined in s 5 of the National Law. Finally, the HCCC asserts that the practitioner is not competent within the meaning of s 139(a) of the National Law to practise as a pharmacist. 7. The HCCC submits that the Tribunal should cancel the practitioner's registration and impose a period of two to three years before he may apply for a re-instatement order. 8. For the reasons which follow, we have determined that the complaints particularised by the HCCC, except Complaint Two, are established. Consequently, we have determined that the practitioner's registration should be cancelled and a period of eighteen months elapse before he can seek to review that decision. Background 1. The following matters, unless noted by us to be an allegation, are facts established to the requisite standard in these proceedings. 2. The practitioner is currently aged 29 years. 3. In 2018 he obtained the degree of Bachelor of Pharmacy from Charles Sturt University. In December 2018 the practitioner commenced an internship at a pharmacy known as Terry White Chemmart at Penrith NSW (the pharmacy). His employment at the pharmacy was terminated on 12 August 2019. 4. On 17 August 2019 notification by email was received by the Pharmaceutical Regulatory Unit, (the PRU) NSW Health Department alleging that the practitioner was responsible for misappropriating drugs of addiction in the course of his employment at the pharmacy. The missing drugs included hydromorphone oral tablets, morphine injections, methadone oral syrup and hydromorphone injections. CCTV footage is alleged to have disclosed the practitioner "suspiciously accessing the S8 safe unsupervised and taking items". 5. Between 19 and 29 August 2019 the PRU discovered that the practitioner had presented prescriptions purported to be prescriptions signed by his father, Dr Hisham Hallani, a cardiologist. Investigations by the PRU, including contact with Dr Hallani, revealed the prescriptions to have been forged by the practitioner. 6. On 23 August 2019 the practitioner was interviewed by Mr Victor Luu, Senior Pharmaceutical Officer and Ms Kim Dolan, Principal Pharmaceutical Officer. 7. On 24 August 2019 a specialist medical practitioner, an Interventional Radiologist, produced a report having viewed CT images of the practitioner's spine. The practitioner is referred to in the schedule to the complaint as "Practitioner A". Practitioner A forwarded a report to Associate Professor Tillman Boesel at the Inner West Pain Centre together with CT images. A year later, on 24 August 2020, Practitioner A was contacted by general practitioner (Practitioner B) asking whether a referral letter she had received was authentic. Practitioner A examined the letter and determined it was a forgery. On 24 August 2020 Practitioner A was contacted by another general practitioner (Practitioner C) from the same practice as the female general practitioner and also confirmed a referral letter the practitioner had presented to that practitioner was a forgery. The practitioner provided the forged letters in an attempt to obtain a prescription for Endone. 8. On 5 March 2020 the practitioner forwarded an email to a general practitioner at North Sydney with whom he had arranged an appointment the following day. The practitioner annexed the forged report purporting to be a report of Practitioner A. The general practitioner suspected the letter was a forgery, and prior to seeing the practitioner, contacted the prescription shopper hotline and found the practitioner was a person identified under the scheme. At a consultation on 5 March 2020 the practitioner told the general practitioner he was a practising pharmacist, that he had chronic pain issues and requested a prescription as recommended in Practitioner A's letter. The general practitioner advised the practitioner that he would make a report to the Australian Health Practitioner Regulation Agency (Aphra) and contact the practitioner's father, Dr Hallani, about a purported referral. 9. On 8 October 2019 proceedings were conducted by the Pharmacy Council of New South Wales under s 150 of the National Law. The practitioner did not attend the s 150 hearing. The Council suspended the practitioner's registration with effect from 9 October 2019. The practitioner remained suspended at the date of this hearing. 10. On 7 April 2021 Dr T Ho provided a report addressed "To whom it may concern" about the practitioner. He noted that he was treating the practitioner for Opioid use disorder – on Suboxone program, chronic nociplastic back pain secondary to scoliosis and T3-S1 fusion, maladaptive coping mechanism – internationalisation and avoidant and adjustment disorder. He explained that the practitioner "has been engaging and compliant with treatment his prescription opioid use disorder is stable and controlled with Buprenorphine maintenance therapy". 11. At the hearing the practitioner gave oral evidence that he was employed as a business manager at the Chris O'Brien Lifehouse Centre, Camperdown. Relevant Law and Principles 1. These proceedings, as are all proceedings under the National Law, are guided and informed by the objectives in the Health Practitioner Regulation National Law (the National Law). Section 3A of the National Law, a New South Wales provision is of particular relevance to these proceedings. It provides as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Disciplinary proceedings are not to punish the practitioner, but to protect the public. The purpose of disciplinary proceedings is succinctly explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] as follows: 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. 1. The onus of proving the complaint lies with the HCCC. These are civil proceedings, and the standard of proof has generally been recognised to be in accordance with the Briginshaw standard (Briginshaw v Briginshaw 1938 60 CLR 336) (See Gautam v Health Care Complaints Commission [2021] NSWCA 85. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449). 2. The HCCC agitate Complaint One under s 139B(1)(a) of the National Law. That section provides as follows: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Complaint Two is brought under s 144(e) of the National Law. Section 144(e) provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. Complaint Three asserts the practitioner is guilty of professional misconduct as defined in s 139E of the National Law as follows: 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. Complaint Four relies on s 144(d) and the definition of impairment in s 5 of the National Law. 2. We have set out the terms of s 144 above. Section 5 of the National Law relevant in this matter is as follows: In this Law – impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or The expert report 1. As noted above, Dr Samuels assessed the practitioner on 7 April 2022 and provided a report of the same day. That report became Exhibit E in the proceedings. Dr Samuels gave oral evidence by telephone. He was not required for cross-examination by the practitioner, but answered questions posed by counsel for the HCCC. 2. In his report Dr Samuels recorded that the practitioner reported a history of undergoing a spinal fusion at age 14, that there were issues due to non-union of his spine when he was in the second year of university in 2013. He further recorded that the practitioner reported there was no drug seeking behaviour at the time and that he was treated by a pain specialist and a surgeon. At that time the practitioner was prescribed Endone and eventually moved to fentanyl patches. It is further reported by the practitioner that after surgery he was on Physeptone to wean off the opioids and that within six months he was off all opioid medication. 3. Under the heading "Medical History", Dr Samuels records that the practitioner reported at age 14 he was diagnosed with a double major scoliosis and that his first surgery followed in two parts (24 September 2007 and the second six weeks later). The practitioner is noted to report revision surgery in 2009, 2010, 2013 and 2015. The practitioner is also noted to have reported his spine is "okay now but he has some pins in his pelvis which need to be removed and his spine is fixed from T3 to the pelvis". 4. Dr Samuels records that the practitioner was admitted to Macquarie University Hospital after his suspension and placed on Suboxone. More recently, the practitioner has been on Sublocade injections monthly and sees Dr Tim Ho, pain specialist. 5. The practitioner reported to Dr Samuels that he got married in 2019 and at that time he stopped all opioids and had quite significant withdrawals. 6. The practitioner acknowledged to Dr Samuels that he had forged prescriptions on his father's prescription pad and that "he feels very bad about that" and said he felt "very remorseful" about this conduct. The practitioner also acknowledged to Dr Samuels that he had forged the specialist letter and acknowledged attending another medical and fitness centre (presumably the North Sydney practice). 7. Dr Samuels explained at para 144 of his report under the heading "Opinion" that: On examination [the practitioner] was pleasant and cooperative and his affect was reactive and his mood euthymic. His speech was normal paced and his thought form was normal. There were no neurovegetative symptoms of depression or anxiety. He is not craving opioids. [The practitioner's] spinal problems seem to be reasonably well controlled although he does face the prospect of a further minor surgical procedure. He says that he is now at the point that he would consider undertaking some psychological therapy and I have strongly encouraged him to do this.. 1. At para 145 of his report, Dr Samuels states that the practitioner "certainly has an iatrogenic Opioid Use Disorder that seems to be controlled on his current dose of Sublocade". It is noted that the practitioner continues to see a pain specialist and spinal surgeon but is not seeing a psychiatrist or psychologist. 2. Dr Samuels opines that the practitioner does have an impairment as defined in the National Law. In commenting on whether the practitioner is not competent to practice within the meaning of s 139(a) of the National Law as a pharmacist, Dr Samuels opines that, currently the practitioner is not competent to practice as a pharmacist. 3. In his oral evidence, after being referred to the letter of Dr Ho of 7 April 2021, Dr Samuels was asked if he still confirmed the opinions set out in his report. 4. Dr Samuels explained that the practitioner had been involved in a high level of deception and had not been entirely open with his treating practitioners having regard in particular to a report of Dr Ho dated 11 February 2020. He also stated that it was his view the practitioner is being appropriately managed at present and has insight into his behaviours. Understandably, Dr Samuels explained that, in forming his opinions, he was reliant on the honesty of the patient. Dr Samuels explained the types of conditions to be imposed on the practitioner's registration which would be appropriate if the practitioner is to return to practising pharmacy including matters such as hair drug testing. 5. Dr Samuels explained that, in his view, the practitioner would need a minimum of a year during which he had clear urine drug screens before a return to practice could be contemplated. He also explained it would be necessary to see how the practitioner coped when no longer on Sublocade. 6. We found Dr Samuels' opinions to be relevant and soundly based and we have placed significant weight on them. Complaint One 1. We commence our discussion of this complaint noting that the practitioner in his oral evidence did not dispute any aspect of this or any other complaint. He stated that he is remorseful for his actions. He also explained that whilst he had always wanted to work as a health provider that he did not see himself resuming his profession as a pharmacist at the present time as he did not trust himself to fulfil that role. 2. The practitioner said he proposes continuing to see Dr Ho, his pain specialist and will see a psychiatrist. 3. We note that this complaint is agitated under s 139B(1)(l) of the National Law. As noted in a number of Tribunal decisions the words "improper" and "unethical" are not defined in the National Law and should be given their natural meaning. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31] the Tribunal explained: The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession". 1. The documentary evidence in support of this complaint includes the complaint to Ahpra of the proprietor of Terry White Chemmart, Pharmacy. That report details the drugs stolen by the practitioner. 2. Also in evidence before us was the report of Mr Victor Luu of the PRU which details the stolen drugs on page 3 of the report. Also in that report is a record of the interview with the practitioner. 3. We find that the practitioner's conduct in stealing the drugs particularised in the complaint was improper and unethical. In reaching this conclusion we accept the evidence discloses that the practitioner stole multiple drugs of addiction for his own personal use over a six month period from the pharmacy in which he was employed. 4. In reaching this finding, we have also taken into account that the conduct was directly in breach of the professional values and qualities set out in the Pharmacy Board of Australia, Code of Conduct for Pharmacists, March 2014. 5. We are satisfied that the particulars of this complaint are established. Complaint Two Background to the complaint 1. The background to this complaint sets out details of the practitioner's conduct in forging both prescriptions and a forged letter. 2. The background refers to the practitioner attending a pharmacy near the pharmacy at which he was employed on 22 July 2019 and presenting a script under the authority of his father for hydromorphone. 3. It is also recorded that on 5 March 2020 the practitioner prior to his attendance on a general practitioner at North Sydney emailed a forged letter purporting to be by a radiologist (Associate Professor Ho-Shon) advising the practitioner's pain should be managed by gabapentin, hydromorphone, and oxycodone 4. Also set out in the background is a history of the practitioner attending nine consultations under a false identity between 21 October 2019 and 31 August 2020 at a general practice at Penrith on three occasions the practitioner presented a forged letter in identical terms to the letter presented to the North Sydney general practitioner. 5. The particulars of the complaint allege first, that the practitioner stole blank pages from a prescription pad of his father. Secondly, that he used the forged prescriptions to obtain Schedule 8 drugs for his own personal use. Thirdly, that the practitioner self-administered hydromorphone. Fourthly, that on 22 July 2019 the practitioner attempted to use a forged prescription to obtain 20 tablets of hydromorphone 8mg. 5, 6, 7 and 8 particularise dates on which the practitioner after being advised he was under investigation by the HCCC presented the forged radiologist report to the general practitioner at North Sydney, attended consultations for the purpose of obtaining Schedule 8 drugs under a false name and on other dates in July and August 2020 provided further forged radiologist reports to general practitioners. 6. It is noteworthy that we commence by recording that the practitioner did not dispute any aspect of the amended complaint during the hearing and expressed remorse for his actions. 7. The HCCC rely on the following matters to prove the particulars of this complaint. First, reliance is placed on the practitioner's s 40 response to the HCCC as well as his admissions at the PRU interview when he conceded he had stolen prescription stationary from his father. Reliance is also placed on the records and copies of scripts obtained by the PRU as well as the practitioner's admissions, noted in the PRU report that he had been self-administering 1 ampoule of 10mg/ml Dilaudid every twelve hours for a period of three months. 8. Reliance is also placed on the statements found in Exhibit 1 of the HCCC brief of evidence being statements of general practitioners, including the North Sydney general practitioner and Associate Professor Ho Shon. HCCC submissions – Complaint Two. 1. The HCCC submit that the practitioner's conduct, as particularised in Complaint Two, at a time when the practitioner was aware he was under investigation involved "serious dishonesty and deception" in support of an addiction "which demonstrates a fundamental deficiency of character and integrity so serious to warrant his removal from the profession". Consideration 1. We commence by referring to relevant decisions on the topic of "not a suitable person to hold registration". The phrase has been subject of a number of decisions of the Tribunal. We were not directed to any appellate authority on the section. However, we find the reasoning of Payne JA, with whom Basten and Leeming JJA agreed in Chen v Health Care Complaints Commission [2017] NSWCA 186 is relevant to our consideration. We discuss below his Honour's discussion of, and rejection of, probable permanent unfitness as an implied term of s 149C of the National Law. 2. Several relevant authorities on this provision are considered in Health Care Complaints Commission v Thomas [2019] NSWCATOD 163. In Thomas the Tribunal referred to the decision in Health Care Complaints Commission v Brush [2015] NSWCATOD 120. In Brush the Tribunal explained: The expression "not a suitable person for registration" is not defined by the National Law. The Commission submits that s 55 of the National Law provides guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 states that a National Board may decide an individual is not a suitable person to hold general registration, if, among other things: (h) in the Board's opinion, the individual is for any other reason (i) not a fit and proper person for general registration in the profession; or … The Commission submits that the expression "not a fit and proper person" while broader than the notion of "being of good character" includes a consideration of character. The Commission submits that the principles enunciated by the Court of Appeal in McBride v Walton (unrep, NSWCA, 15 July 1994) and consistently adopted by the NSW Medical Tribunal (see for example, HCCC v Meyer [2008] NSWNMT 22 at [78] and HCCC v McKay [2007] NSWNMT 5), provides useful guidance on the factors to be taken into account in determining whether a practitioner is of good character: To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner. The Commission argues that the particulars of Complaint 5 cannot be satisfactorily explained as an error of judgment but rather evince a defect of character. This is not a case, argues the Commission, of a single error of judgment but rather of a total disregard for professional responsibilities under the Code and the National Law, over an extended period. Of relevance, argues the Commission, is the absence of any evidence of a change or improvement in Mr Brush's character since the impugned conduct occurred. Consideration We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills. 1. In Health Care Complaints Commission v Ovchinnikov [2017] NSWCATOD 62 the Tribunal dealt with complaints both of impairment and "not a suitable person to hold registration" under s 144(e). The practitioner, a nurse, had a substance abuse disorder (Opioids) and had stolen drugs from two nursing homes at which she worked. The nurse was charged under the Crimes Act 1900 with stealing offences, but a dismissal order was made under s 32 of the Mental Health (Forensic Provisions) Act 1990 (repealed). The Tribunal rejected the complaint (that is, the nurse had been charged with an offence because of the dismissal order.) The Tribunal, in the course of its reasoning for refusing to find the complaint established, explained A person who is not a "fit and proper person" is a person who, by conduct, has demonstrated such a failure of character that his or her profession, and the general public, must be protected from that person. Such a person has little scope for return to the profession. On the other hand, an illness or impairment, does not permanently flaw character. It may be possible for such a person suffering such a condition, to return to their profession at an appropriate time. 1. While we are conscious that each case must be decided on its own particular factual circumstances, our examination of the Tribunal decisions reveals that findings of unsuitability have generally been made under this provision where practitioners have committed serious criminal offences, exhibited serious defects of character, or other egregious conduct rendering them permanently unsuitable for registration. We have found the discussion of the Tribunal in both Ovchinnikov and in Health Care Complaints Commission v Geary [2018] NSWCATOD 15 relevant and apposite to this complaint. In Geary the Tribunal was dealing with a medical practitioner with a drug addiction, who had falsely written prescriptions in the name of family members and breached conditions on his registration. The Tribunal Geary's discussion is repeated because of its relevance to this matter. At [112]–[121]. In our view, special care must be taken in laying a charge that a practitioner is no longer a 'suitable' person to practise a profession. In our view, this cautious view is reflected in the way this ground for complaint is addressed in the National Law. There are four primary categories of permitted complaint in s 144: criminal conviction or criminal finding, unsatisfactory professional conduct or professional misconduct, lack of competence and impairment. The section then lists as its final complaint category 'suitable person' and allows for the making of a complaint that the practitioner is 'otherwise not a suitable person to hold registration in the practitioner's profession'. As we read s 144, it is at least arguable that the suitability ground is there as a fail-safe to deal with cases of a serious kind where the available evidence might not support findings under the usual headings sufficient to justify an order for removal from the practising profession. The adjective 'suitable' is, of its nature, highly inexact in its meaning. It is connected with the family of words that include the verb 'to suit' and the noun 'suitability'. The Macquarie Dictionary (2004 ed.) lists 16 meanings of the verb 'to suit'. The final meanings in the list are of relevance to the present context. They capture the vagueness and elasticity inherent in the word suitable. 'To suit' is defined, for example, as 'to make appropriate', 'to be suitable, agreeable or acceptable'. The definition of 'suitable' gives meanings such as 'appropriate, fitting, becoming'. It is inherent in a finding that a person is not a 'suitable person to hold registration' that he or she must be removed from the profession. What we think is contemplated by this provision is an inquiry into the person's fitness in the sense of an inquiry going to the person's character and integrity. It would, we think, be necessary to demonstrate a fundamental deficiency of character so serious as to warrant in its own right exclusion from the profession. In our view, introducing into disciplinary cases a separate complaint of lack of suitability may tend to stand in the way of appropriate resolution of cases where there is some preparedness to co-operate with and not impede the process, as has been seen here in the early and frank admissions made in this case from an early stage. Practitioners, we acknowledge, have a duty to co-operate with and respond to disciplinary investigations and disciplinary proceedings brought against them. But it is not unknown for practitioners to disengage from the process or only give limited responses, especially in cases where there is evidence of mental ill health, and conditions such as depression. In our view, it will ordinarily be sufficient to deal with omissions of this kind through the spectrum of the professional misconduct/unsatisfactory professional conduct inquiry, and in the consideration of the appropriate disciplinary order. We accept that there may be, in some cases, behaviours found proven as instances of unsatisfactory professional conduct or professional misconduct that do have relevance to an assessment of 'suitability' (for example, findings of falsification, dishonesty, sexual abuse). Similarly, we accept that the complaints of misconduct found proven in this case (i.e. Complaints 1 and 2, referred to in Particulars 1 and 2 of Complaint 5) might be seen as raising issues as to the character and integrity of the practitioner - the habitual nature of the offending, the deviousness involved in using prescriptions written in the names of family members, and the relapses after the suspension was lifted. However, we doubt that it would ever be appropriate to rely on impairment as a ground for a finding that a person is not a 'suitable' person, as P3 of Complaint 5 seeks to do in this case. If we are correct in our view that 'suitability' has at its heart issues of character and integrity, and suchlike, then we doubt the appropriateness of treating a type of disability (albeit in some instances one deriving from self-abuse or addiction) as an issue going to character and integrity. As we see it, the public protection concern raised by proof of an impairment is the degree to which it affects the capacity of a practitioner to practise medicine in a way that meets the basic standard of competence expected of practitioners. This focus will, we think, usually be sufficient to dispose of an impairment case. So far as the present Complaint is concerned, we consider that the evidence given in relation to impairment provided a possible and likely explanation for much of the conduct in which the practitioner engaged, in particular his opioid dependence and its effects, and the dissembling, deceit and breaches which followed. We are not satisfied that the findings we have entered in respect of Complaints 1 and 2 justify a further finding that the practitioner is to be regarded as a person not suitable to hold registration. 1. In Chen at [67]-[68] Payne JA explains: The statutory language in the National Law does not involve any element of moral turpitude. Unlike the cases relied upon by the appellant here, which all involve some degree of moral culpability, there is no occasion to imply a test of "probably permanently unfit" to reflect an assessment of the character of the practitioner. There is no textual basis for the appellant's submission that the "probably permanently unfit" condition provides a "bright line" in s 149C(1) between when cancellation is appropriate and when suspension (or some lesser order) should be preferred. The Tribunal here made an express finding that it was satisfied under s 149C(1)(b) that the appellant was guilty of professional misconduct. Section 149C(1)(b) is to be contrasted with 149C(1)(c). The former does not refer to the concept of fitness at all, whether permanent or temporary. The latter refers to fitness but does not describe either permanent or temporary unfitness as relevant in enlivening the cancellation power. The HCCC's submissions – not suitable to practice 1. The HCCC submit that the practitioner's conduct in stealing his father's prescription stationery, the attempted use of a forged prescription, the multiple presentation of forged medical reports all directed to obtaining drugs of addiction including after the period when the practitioner was told he was under investigation involve "serious dishonesty and deception by the respondent in support of an addiction which demonstrates a fundamental deficiency of character and integrity so serious as to warrant his removal from the profession". Consideration – Complaint Two 1. We commence our consideration of this Complaint by reference to the statement of Dr Hallani and the report of Dr Samuels. 2. Dr Hallani was interviewed by the HCCC and provided a statement dated 4 November 2019. In his statement Dr Hallani details the serious nature of the practitioner's surgery at age 14. He then refers to the practitioner's further surgeries, and at para 14, explains that when in his second year at university the practitioner slipped in the shower and fractured his L4 vertebra and was bed bound for six months. He goes on to explain that "Prof Tillman Boesel provided pain management for him, which began conservatively, but escalated due to his excruciating pain. He was on long-acting opiate medication and Endone for breakthrough". He describes providing occasional lscripts for his son's medication. 3. Dr Hallani explains steps taken when the practitioner was admitted to the Nepean Private Hospital where his pain was stabilised with a ketamine infusion. He goes on to state that, because of the practitioner's increasing pain and opioid tolerance, Prof Boesel placed him on oxynorm capsules for breakthrough pain. After recording the practitioner's further surgery in February 2014, he states his son was in severe pain "due to his tolerance to narcotics". He records that Prof Boesel then worked to wean the practitioner off narcotics. 4. At para 21 of his statement, Dr Hallani explains his disbelief when, in July 2019, he was advised of the practitioner's action in forging a prescription for hydromorphone. He later explains that he and his wife were concerned for their son's health at this time including that he may self-harm. Dr Hallani states that he arranged for the practitioner's admission to Macquarie University Hospital under Dr Boesel's care. 5. Dr Hallani's evidence corroborates the practitioner's evidence about his eight spinal surgeries, and significantly, how as a teenager, tragically, he became opioid dependent. 6. We have already set out Dr Samuels' view that the practitioner currently meets the criteria of impairment as defined in the National Law. In his report Dr Samuels sets out steps the practitioner will need to take if he is to be restored to the register. Put shortly, while Dr Samuels does not suggest the practitioner should currently be permitted to return to practise pharmacy, he outlines steps which, if followed, will in the future, permit the practitioner to practise. 7. We find that the practitioner presently shows insight into his condition. In reaching this finding we accept he is currently attending Dr Ho, he has obtained employment, and importantly gave evidence before us that he would not seek to work as a pharmacist for some time as it would be too tempting (to have access to drugs of addiction). Further, he has expressed remorse for his actions. We accept his expression of remorse is genuine. 8. In considering this complaint, we have not ignored the fact that the practitioner engaged in drug seeking behaviours after his 2019 hospital admission including further forgeries involving Associate Professor Ho Shon's report. But we do not find this conduct means that the practitioner is unsuitable to hold registration. In reaching this conclusion, we have taken into account the general principles referred to by the Tribunal in Geary. We are satisfied the facts in this case are readily distinguishable from other Tribunal decisions cited above. 9. In reaching this conclusion we have been guided and informed by the reasoning of Payne JA in Chen. We have not determined "suitability" on the basis of probable permanent unfitness to hold registration, rather we are not satisfied given unusual and tragic circumstances of the practitioner's opioid addiction, which commenced with prescribed medication when he was a teenager, that his actions can be attributed to such a serious defect in character that he is unsuitable to hold registration. Complaint Three 1. Complaint Three asserts the practitioner is guilty of professional misconduct as defined in s 139E of the National Law. The HCCC rely on the particulars of Complaint One to establish professional misconduct. 2. The question of professional misconduct is explained Chen v Health Care Complaints Commission by Basten JA at [19] as follows: The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[foot-notes omitted] HCCC submissions 1. The HCCC refer to the practitioner's conduct in stealing Schedule 8 drugs for his personal use from the pharmacy on multiple occasions over a six-month period as involving a grave departure from professional standards. Consideration professional misconduct 1. We commence by noting that the practitioner did not seek to be heard about the protective orders to be made by the Tribunal and at the hearing admitted all of the conduct particularised in Complaint One. 2. It is relevant that we refer to the decision of Health Care Complaints Commission v Naamo [2021] NSWCATOD 109 at [74]-[75]. Here the Tribunal stressed the importance of a pharmacist's role as the "gatekeeper" of the dispensing of drugs particularly drugs of addiction. 3. We find that the practitioner's conduct as particularised in Complaint One to be of such seriousness that it constitutes professional misconduct. Accordingly, we are satisfied this complaint is established. Complaint Four 1. This complaint asserts the practitioner suffers an impairment, (opioid use disorder) as defined in the National Law. 2. This complaint may be considered shortly. We have already set out Dr Samuels' opinion that the practitioner does suffer from an impairment as defined in s 5 of the National Law. 3. We adopt Dr Samuels' opinion. We are satisfied that this complaint is established. Complaint Five 1. Complaint Five as set out in the amended complaint asserts the practitioner is not competent within the meaning of s 139(a) of the National Law to practise as a pharmacist under s 144(c) of the National Law. 2. Section 139 (a) of the National Law provides as follows: Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; HCCC submissions 1. The HCCC relies on Dr Samuels report for this complaint and the earlier complaint of impairment. 2. It is noted that a finding of impairment may support a finding that a practitioner is not competent to practise citing the decision of the Court of Appeal in Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]-[169]. 3. It is submitted that we would accept Dr Samuels report and evidence that the practitioner is not competent to practise at the present time due to his impairment, the absence of any up-to-date report of his treating specialists, and a failure to engage in treatment with a psychiatrist. Consideration Complaint Five 1. We agree with the submissions advanced by the HCCC on this topic. Although the practitioner participated in the hearing and attended on Dr Samuels for the purposes of an assessment, he did not avail himself of the many opportunities afforded to him to file material including relevant material to his present treatment. 2. We do take into account that the practitioner disclosed some insight to his condition when he explained that he would not currently wish to work in a pharmacy as it would be "too tempting". 3. We agree with Dr Samuels that the practitioner needs to undertake a number of steps before he could be considered competent to practise. These include importantly engaging with a psychiatrist for treatment, demonstrating clean urine or hair drug screens over a regular period, as well as keeping up to date his pharmaceutical knowledge. 4. On the evidence before us we are satisfied that the practitioner is not presently competent to practise pharmacy. Appropriate protective orders. 1. Counsel for the HCCC, in his written submissions, proposes that the Tribunal should make an order cancelling the practitioner's registration and impose a period under s 149C(7) of two to three years before the practitioner can apply for a re-instatement order. 2. The HCCC submit that the health and safety of the public requires the cancellation of the practitioner's registration. It is submitted that the practitioner's theft from the pharmacy at which he worked was of such gravity that the only appropriate order is cancellation of his registration. The submissions also refer to matters relating to Complaint Two "demonstrates a fundamental deficiency of character and integrity so serious as to warrant his removal from the profession, and therefore cancellation of his registration". Finally, it is submitted that the practitioner's impairment renders him presently incompetent to practise as a pharmacist and requiring cancellation of his registration. Consideration appropriate protective orders 1. We are satisfied that it is appropriate to cancel the practitioner's registration. In reaching this conclusion we accept his theft of Schedule 8 drugs over a six month period was a serious departure from the standards of the profession and an abuse of his privilege as a gatekeeper for dispensing drugs of addiction. Cancellation will serve as a deterrent to like conduct by other professionals and uphold the standards of the profession. 2. We are also independently satisfied that, on the evidence before us, the practitioner has an impairment. It is relevant that the practitioner failed to provide any relevant up to date treatment by his pain specialist, and that he had not at the time of the hearing consulted a psychiatrist to address his substance abuse. This too leads us to the conclusion he could not competently practise pharmacy even with stringent conditions at this point in time. We therefore find that the practitioner's registration should be cancelled. 3. Before us Dr Samuels gave oral evidence about the period of time before the practitioner might appropriately return to practice. He referred to the practitioner's present medication regime (Suboxone at the time of his admission to Macquarie University Hospital in 2019 and now "on a new form of medication" (Dr Samuels' report para 134) which is referred to in para 145 of the report as Sublocade. 4. We note at para 150 of his report Dr Samuels, having expressed the view the practitioner was not currently competent to practise, stated: This should be reviewed when his pain condition and iatrogenic opioid dependence are considered to be optimally managed by a pain specialist and drug and alcohol specialist. In addition regular monitoring will need to confirm that he is only taking prescribed medication and has been adherent to treatment for a sufficient time period for his treating specialist to confirm that some form of remission has been established. 1. In his oral evidence Dr Samuels explained that the practitioner had not yet started to engage with the matters (as recommended in para 150 of his report) and that he thought at least a minimum of year would be necessary before any re-statement could be contemplated. 2. We accept Dr Samuels' opinion is soundly based. While noting the practitioner's desire to resume his career as a pharmacist at some time, we find that he should be precluded from any application for re-statement for a period of 18 months from the date of these orders. Non-Publication Order. 1. At the commencement of the hearing, the Tribunal on its own motion made an interim non-publication order in respect of the practitioner's name. We afforded the practitioner the opportunity to file an application, if he wished to do so, for a final non-publication order. No application was received by the practitioner. Accordingly, we propose to discharge the interim order and in accordance with the well-established principles of "open justice" these reasons will be published in the usual manner on NSW Caselaw. Costs 1. The HCCC seeks an order that the practitioner pay its costs of the proceedings. 2. The Tribunal's power to order costs is found in Cl 13 of Schedule 5D as follows: Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 1. The principles relevant to the making of a costs order are well known and uncontroversial. See Health Care Complaints Commission v Philipiah [2013] NSWCA 342 as follows As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). 1. We are satisfied that, in the circumstances of this case, there are no factors disentitling the HCCC receiving the benefit of a costs order. Accordingly, we will order that the practitioner pay the HCCC's costs as agreed and failing agreement as assessed under the provisions of the Legal Practitioner Uniform Law Application Act 2014 (NSW). ORDERS 1. Pursuant to s 149C of the Health Practitioner Regulation National Law ("the National Law") the registration of Mohamed Michael Hallani ("the practitioner") is cancelled. 2. Pursuant to s 149C(7) of the National Law the practitioner may not apply for a review of Order 1 for a period of eighteen months from the date of these orders. 3. The practitioner shall pay the costs of the Health Care Complaints Commission as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 4. The interim non publication order made 16 May 2022 is discharged. ********** 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: 05 August 2022