Health Care Complaints Commission v Ang [2022] NSWCATOD 121
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Ang [2022] NSWCATOD 121
Hearing dates: 11, 12 and 13 May; 29 July 2022
Date of orders: 19 October 2022
Decision date: 19 October 2022
Jurisdiction: Occupational Division
Before: R C Titterton OAM, Senior Member
J Zwart, Senior Member
A Steffensen, Senior Member
R Leontini, General Member
Decision: 1. The respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Health Practitioner Regulation Law (NSW).
2. The respondent is guilty of professional misconduct under s 139E(b) of the National Health Practitioner Regulation Law (NSW).
3. The registration of the respondent is cancelled
4. The respondent may not apply for a re-instatement order for a period of 18 months from the date of these orders.
5. The applicant is to file and serve submissions as to costs on or before 2 November 2022;
6. The respondent may respond on or before 16 November 2022;
7. The applicant may reply on or before 23 November 2022;
8. The Tribunal proposes to deal with the question of costs "on the papers" and without a hearing. If either party opposes that course they should address that issue in their submissions.
Catchwords: PROFESSIONS AND TRADES – health care professional – pharmacy – unsatisfactory professional conduct – professional misconduct – appropriate protective orders
Legislation Cited: National Health Practitioner Regulation Law (NSW) – 3(2)(a), 3A, 149C,
Poisons and Therapeutic Goods Regulation 2008 (NSW) – cll 68(1)(e), 118, 177(2)
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Chen v Health Care Complaints Commission [2017] NSWCA 186
Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523
Health Care Complaints Commission v Brittain [2019] NSWCATOD 161
Health Care Complaints Commission v Daniel [2022] NSWCATOD 104
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v King [2013] NSWMT 9;
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2
Health Care Complaints Commission v Sloane; Health Care Complaints Commission v Hayles [2018] NSWCATOD 37
Lee v Health Care Complaints Commission [2012] NSWCA 80
Nusrat Deano v Health Care Complaints Commission [2012] NSWSC 693
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep)
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Judd Seng Long Ang (Respondent)
Representation: Counsel:
T Saunders (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
Meridian Lawyers (Respondent)
File Number(s): 2022/00007684
Publication restriction: The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure of the names, addresses or any other identifying information of the persons identified as Patients A to H and a staff member, Person I, set out in Schedule A to the Amended Complaint.
REASONS FOR DECISION
Introduction
1. Mr Judd Seng Long Ang (practitioner) was first registered as a pharmacist on 28 January 1999.
2. Since 2 October 2019, the practitioner's registration has been suspended following a hearing conducted by the Pharmacy Council of New South Wales (NSW) (Council) under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law).
3. By Application for Disciplinary Findings and Orders filed 10 January 2022 the Health Care Complaints Commission (Commission), pursuant to s 149C of the National Law, seeks protective orders including the cancellation of the practitioner's registration.
4. The proceedings were conducted as a combined "Stage One and Stage Two" hearing on 11, 12 and 13 May 2022. Oral submissions were heard on 29 July 2022.
5. For the following reasons, we have decided to cancel the practitioner's registration and order that the practitioner may not apply for a re-instatement order for a period of 18 months from the date of these orders.
Evidence
The Commission's evidence
1. On 11 April 2022, the Commission filed two folders of materials consisting of some 91 tabulated bundles of documents, of over 1,500 pages. Those documents include but were not limited to correspondence between the Commission and the practitioner; a statement of Ms Ka Lai Joyce Chun, a Senior Pharmaceutical Officer of the PRU dated 21 May 2020 with various attachments including reports dated 26 September 2019 (interim report) and 1 October 2019 (supplementary report); reasons for decision and the transcript of proceedings of the Council conducted pursuant to s 150 of the National Law on 2 October and 12 November 2019; expert reports of Ms Nerida Croker dated 11 May 2021 and 19 February 2022 and an email dated 10 May 2022 and related documents.
2. Ms Croker was required for cross examination. Where relevant we will refer to her evidence below.
The practitioner's evidence
1. On 9 May 2022, the practitioner filed a Reply to Disciplinary Application; a statement dated 6 May 2022; two character references; evidence of completion of CPD units and photographs of the safe in his pharmacy.
2. The practitioner was required for cross-examination by the Commission. Where relevant we will refer to that evidence below.
Complaints
1. The Commission brought two complaints to the Tribunal by way of an Amended Complaint filed 13 May 2022. The complaints relate to the practitioner's conduct as a pharmacist in the period May 2018 to September 2019.
2. Attached to the Amended Complaint are seven schedules which set out:
1. the identity of the patients identified as Patients A to H and a staff member, Person I, in respect of whom non-publication orders were made. We note that Patient C is a dog which apparently bears the same surname as its owner (Schedule A). This we understand is the usual practice with animal patients;
2. in relation to Particular 1(f) of Complaint One, the discrepancies between drugs on hand and drugs recorded in the drug register on 11 September 2019 (Schedule 1);
3. in relation to Particular 1(g) of Complaint One, the discrepancies between drugs purchased and the drug register in the period November 2018 to September 2019 (Schedule 2);
4. in relation to Particular 2 of Complaint One, the dispensing of 100mcg Durogesic patches to Patient D (Schedule 3);
5. in relation to Particular 3 of Complaint One, the dispensing of Alprazolam and Oxycontin to Patient G (Schedule 4);
6. in relation to Particular 5 of Complaint One, the dispensing of Endone to Patient A (Schedule 5);
7. in relation to Particular 11(b) of Complaint One, the Alprazolam tablets observed in a drawer of the pharmacy on 11 September 2019 (Schedule 6).
Complaint One
1. Complaint One was that the practitioner was guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (l) of the National Law in that the practitioner had:
1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
2. engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
Background
1. The background to the Complaint is as follows:
1. in 1997, the practitioner completed a Bachelor of Pharmacy;
2. on 28 January 1999, the practitioner was first registered as a pharmacist;
3. in 2000, the practitioner started working as a pharmacist at Penrith Discount Drug Store (pharmacy);
4. in 2004, the practitioner purchased the pharmacy and became the proprietor;
5. in 2015, the practitioner joined the Opioid Treatment Program (OTP);
6. on 11 September 2019, the PRU conducted an inspection at the pharmacy.
1. To this background may be added the following events.
2. On 11 September 2019, that is during the PRU's inspection of the pharmacy, the PRU seized the current drug register used for recording OTP medicines and the previous drug register for other Schedule 8 medicines (register dated till 14 January 2019) and extracted some dispensing records.
3. On 13 September 2019, the PRU delivered an order to the practitioner to withdraw his Schedule 8 authority effective 13 September 2019 (except methadone and buprenorphine until 26 September 2019). A further inspection of the pharmacy was carried out and the PRU seized most of the practitioner's Schedule 8 medications, the drug registers and copies of Schedule 8 prescriptions.
4. On 18 September 2019, the PRU advised the Council that the practitioner's Schedule 8 authority had been withdrawn.
5. On 26 September 2019, the PRU completed the interim report.
6. On 26 September 2019, the PRU lodged a complaint with the Council with the interim report.
7. On 27 September 2019, the PRU seized the practitioner's remaining Schedule 8 medications (being Targin, Methadone and Suboxone) and copies of DHEA prescriptions.
8. On 2 October 2019, the PRU provided the supplementary report to the Council.
9. On 2 October 2019, a s 150 hearing was held. The Council suspended the practitioner's registration effective 2 October 2019.
10. On 21 October 2019, the practitioner emailed the PRU stating that he had employed new pharmacists and requested the return of the seized medications.
11. On 25 November 2019, the PRU returned the seized medications (except methadone and buprenorphine) to the pharmacist in charge.
Particulars to Complaint One
1. The twelve particulars to Complaint One (respectively Particular 1, Particular 2 and so on) are as follows:
1. between about 1 May 2018 to 11 September 2019, the practitioner failed to properly maintain the register for Schedule 8 drugs of addition (drug register) in circumstances where:
1. by 31 March 2019, the practitioner failed to undertake an accurate inventory of all drugs of addiction at the pharmacy as required by cl 118 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR);
2. on about 8 June 2019, the practitioner allowed a non-pharmacist staff member, Person I, to alter the drug register entry regarding 5mg Endone contrary to cl 177(2) of the PTGR;
3. between 10 and 11 September 2019, the practitioner failed to ensure that the details were entered into the drug register on the day that drugs of addiction were supplied as required by cl 112(1) of the PTGR;
4. the practitioner recorded different brands of medications on the same page;
5. the practitioner allowed a non-pharmacist staff member, Person I, to record some entries in the drug register contrary to cl 112 of the PTGR;
6. on 11 September 2019, as listed on Schedule 1, the practitioner failed to ensure that the drug register accurately recorded the quantity of drugs of addiction held at the pharmacy as required by cl 112 of the PTGR;
7. on the occasions listed on Schedule 2 to the Amended Complaint, the practitioner failed to record in the drug register the medication received as required by cl 112(1) of the PTGR;
8. the practitioner did not keep appropriate records regarding patient takeaway doses or missed doses for OTP patients;
1. on the occasions listed on Schedule 3 to the Amended Complaint, the practitioner dispensed 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient D, in circumstances where:
1. he dispensed non-therapeutic quantities contrary to cl 109 of the PTGR;
2. he dispensed at shorter intervals than indicated, contrary to cl 86(1)(c) of the PTGR;
3. he dispensed from some prescriptions which appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR;
4. he failed to recognise drug seeking behaviours;
5. he dispensed one "non PBS" prescription dated 24 October 2018 as five patches under the Pharmaceutical Benefits Scheme (PBS) and fifteen patches as private;
1. on the occasions listed in Schedule 4 to the Amended Complaint, the practitioner dispensed Schedule 8 drugs of addiction, namely 2mg Alprazolam tablets, 80mg Oxycontin (Oxycodone) tablets, 250ml Oxynorm (Oxycodone) 1mg/ml liquid and 20mg Oxynorm (Oxycodone) tablets, to Patient G, including during the time when Patient G was an OTP patient, in circumstances where the practitioner failed to make sufficient enquiries with Patient G's prescribing doctors and Patient G's OTP prescriber;
2. on 30 October 2018, the practitioner dispensed 50 2mg Alprazolam tablets, a Schedule 8 drug of addiction, to an animal "Patient C" in circumstances where:
1. [Not pressed];
2. the prescription was dated more than 6 months before the date on which the supply was requested, contrary to cl 86(1)(e) of the PTGR;
1. on the occasions listed in Schedule 5 to the Amended Complaint, the practitioner dispensed 5mg Endone tablets, a Schedule 8 drug of addiction, to Patient A, in circumstances where:
1. he dispensed non-therapeutic quantities contrary to cl 109 of the PTGR;
2. he dispensed at shorter intervals than indicated, contrary to cl 86(1)(c) of the PTGR;
1. on 24 July 2019, the practitioner dispensed 15 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient F, in circumstances where the prescription appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR;
2. on 26 July 2019, the practitioner dispensed ten 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient E, in circumstances where the prescription appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR.
3. on 24 August 2019, the practitioner dispensed 100 20mg Dehydroepiandrosterone (DHEA) capsules, a Schedule 4D restricted substance, to Patient H, in circumstances where:
1. he dispensed at a shorter interval than indicated, contrary to cl 40(1) of the PTGR;
2. the DHEA had been dispensed and compounded at another pharmacy;
1. on 28 August 2019, the practitioner dispensed 84 Suboxone (Buprenorphine + Naloxone) 8mg/0.5mg films, a Schedule 8 drug of addiction, to Patient B, an OTP patient, in circumstances were the practitioner dispensed 15 repeats which were not indicated, contrary to cl 86(1)(b) of the PTGR;
2. between 10 and 11 September 2019, the practitioner failed to keep the drug register at the pharmacy in circumstances where:
1. the practitioner permitted a non-pharmacist staff member, Person I, to take the drug register from the pharmacy on about 10 September 2019 contrary to cll 111(1) and 176(2) of the PTGR;
2. the practitioner failed to make the drug register available for inspection on demand by a PRU inspector on 11 September 2019, contrary to cl 176(3) of the PTGR;
1. on 11 September 2019, the practitioner failed to appropriately store Schedule 8 medications as required by cl 76 of the PTGR in circumstances where:
1. 800 5mg Dexamphetamine tablets were stored in a locked black cabinet;
2. Alprazolam tablets listed in Schedule 6 to the Amended Complaint were stored in a locked drawer;
3. 2400 Endone tablets, 105 0.4mg Subutex tablets and 35 30mg Oxycontin tablets were stored in a safe with a removable door;
1. on 13 September 2019, the practitioner failed to appropriately store Schedule 8 medications as required by cl 76 of the PTGR in circumstances where expired Schedule 8 medications and returned Dilaudid (Hydromorphone) injections were stored in a vaccine fridge in an unlocked room.
1. The Commission states in the Amended Complaint that the conduct of the practitioner in any of the Particulars of Complaint One (except Particular 8) is relied upon by the Commission in combination as a course of conduct involving failure to exercise care when dispensing and recording Schedule 8 medications amounting to unsatisfactory professional conduct.
Complaint Two
1. Complaint Two is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that he:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or
2. 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
1. The Commission submits that the particulars of Complaint One, individually or in combination, justify a finding of professional misconduct.
Reply to Application
Complaint One
Overview
1. By his Reply to Application for Disciplinary Findings and Orders, the practitioner admits that he is guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (I) of the National Law.
2. However, in his submissions of 6 June 2022, the practitioner does not admit that his conduct was unethical within the meaning of s 139B(1)(l) of the National Law. In other words, he accepts that he is guilty of unsatisfactory professional conduct under ss 139B(1)(a), in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy are significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Response to Particulars
1. The practitioner admits the facts set out in Particulars 1(a) to (g).
2. The practitioner denies the facts set out in Particular 1(h) and further states that his records were adequate for the OTP, and that all instructions to patients were recorded on "the repeats".
3. The practitioner admits the facts set out in Particulars 2(a) to (b).
4. The practitioner denies the facts set out in Particular 2(c) and further states that at no stage prior to dispensing was he ever aware that any of the forged prescriptions were either actually forged or fraudulently obtained. He states that the prescriptions were "on the face of it not forged or fraudulent". The practitioner admits with hindsight he should have contacted the doctor using contact details sourced independently which would have identified that the prescriptions were forgeries.
5. The practitioner admits the facts set out in Particulars 2(d) to (e).
6. The practitioner denies the facts set out in Particular 3 and further says:
1. he contacted the prescribing doctors via telephone;
2. when Patient G was initiated onto the OTP, the prescriber, Dr Gupta, contacted the practitioner around 13 February 2019 to discuss the matter and informed the practitioner that he would be prescribing for Patient G. This discussion included how Patient G would be introduced to the OTP, what medication was to be provided to him as opposed to what medication was to be limited, that he would monitor Patient G's response to the program and consider whether Alprazolam 2mg should be prescribed to him;
3. on 22 February 2019, Dr Gupta faxed over a prescription for this medication to be dispensed to Patient G;
4. on 7 March 2019, Dr Hossain Javaheri (Patient G's previous doctor prior to his participation in the OTP, a doctor well-known to the practitioner) called the practitioner to inform him that he would be writing a prescription for Patient G for Alprax 2mg, that he was aware that Patient G was on the OTP and that Dr Gupta had prescribed this medication to Patient G before;
5. on 15 March 2019, the practitioner spoke to Dr Antwan Barich and he confirmed that he wrote out the script for Oxynorm and was aware that Patient G was being treated by Dr Gupta pursuant to the OTP.
1. The practitioner denies the facts set out in Particular 4(a) and further notes that the prescription had the descriptor of "doggy" and "for animal treatment only", which when dispensed, was identified accordingly with these descriptors.
2. The practitioner admits the facts set out in Particular 4(b), but notes that the prescribed drug, Alprazolam, moved from Schedule 4 to Schedule 8 on 1 February 2014 and his dispensing software was not updated accordingly by the third party provider for veterinary scripts.
3. The practitioner denies the facts set out in Particulars 5(a) and (b) and further says:
1. the practitioner said that he was in regular contact with Patient A's prescriber, Dr Peter Clarke, about Patient A's dosage. Dr Clarke informed the practitioner that Patient A's Endone prescription was a workers compensation prescription and advised the practitioner to treat the prescription as a private non-NHS. The practitioner said that he was further informed by Dr Clarke that if Patient A required a repeat in circumstances where she was unable to attend the Pharmacy, the prescription should be supplied as "immediate supply". Dr Clarke would usually provide Patient A with extra prescriptions;
2. "with hindsight", the practitioner admits he should have dispensed from different repeat scripts in order to comply with the PTGR instead of using the same repeats on the same day, as the practitioner had intended to use Patient A's older scripts first.
1. The practitioner denies the facts set out in Particular 6 and further says:
1. in the s 150 hearing he became confused, assuming that Patient F was "from" the same doctor, namely Dr Akila Padmanabhan, who was involved in forged scripts for Patient D;
2. after the s 150 hearing, the practitioner revised all script interventions for patients raised during the hearing and located a specific script intervention for Patient F;
3. the practitioner gave evidence of these clinical script interventions at the s 150 hearing;
4. the script intervention record states the practitioner contacted Dr Cho on 24 July 2019, who confirmed he had prescribed 15 Durogesic patches, and the practitioner informed Dr Cho that the Pharmacy only had 5 left. Dr Cho then advised the practitioner to reduce the dispensation to 5 patches, if the patient accepted that reduction. Accordingly, due to this intervention, the practitioner submits that there was nothing to suggest that the prescription was a forgery or was fraudulently obtained.
1. The practitioner denies the facts set out in Particular 7 and further says that the prescription was computer-generated, an isolated incident and did not appear to be forged or fraudulently obtained.
2. The practitioner denies the facts set out in Particulars 8(a) and (b) and further says:
1. he dispensed in accordance with the intervals on the prescription as evidenced by the fax confirmation sheets; that the prescription for the DHEA capsules were faxed to the Kingswood Compounding Pharmacy on 14 May 2019, which subsequently delivered it. The practitioner then faxed the repeats on a monthly basis, namely 20 June 2019, 19 July 2019, 19 August 2019 and 19 September 2019, which was in accordance with the monthly intervals on the prescription.
1. The practitioner denies the facts set out in Particular 9.
2. The practitioner admits the facts set out in Particulars 10(a) and (b).
3. The practitioner admits the facts set out in Particulars 11(a) and (b).
4. The practitioner denies the facts set out in Particular 11(c) and further says that the safe was compliant and the door was only removable once the safe has been opened.
5. The practitioner admits the facts set out in Particular 12.
Complaint Two
1. By his Reply to Application for Disciplinary Findings and Orders the practitioner:
1. denies that he is guilty of professional misconduct under s 139E of the National Law.
2. denies Particular 1 and relies on his responses as per Complaint One.
Consideration of Complaint One
Introduction
1. In his Reply the practitioner admits the facts set out in Particulars 1(a) to (g). However, in his written submissions the practitioner submits that:
1. there may be a drafting issue with Particular 1(b) in that, if his submissions are accepted, "it is the manner of alteration that would be problematic (that is, by using whiteout), and not the person";
2. there is ambiguity in relation to Particular 1(e), namely the state of the law as to who can "actually record entries" in the drug register;
1. Given these matters we were going to approach these Particulars on the basis that they were not admitted by the practitioner. However, in oral submissions on 29 July 2022, the practitioner's counsel accepted the correctness of the Commission's submissions on this matter.
Particulars 1(a) to (g)
1. These Particulars are set out above.
2. These Particulars are now admitted by the practitioner. Independently of those admissions, we are satisfied that the evidence establishes the alleged facts.
3. The evidence is amply summarised in the Commission's detailed submissions. Given the practitioner's admissions, it is not necessary to reproduce the evidence in these reasons.
Particular 1(h)
1. This Particular is denied, and the practitioner submits that his records were adequate for the OTP, and that all instructions to patients were recorded on "the repeats".
Commission's submissions
1. The evidence in relation to this Particular relied on by the Commission includes the following.
2. First, the interim report which relevantly states:
The Pharmacist dispensed non-compliant Schedule 8 prescriptions and generated repeats of the prescriptions when none was authorised on the original prescriptions.
16. I observed that all current methadone and buprenorphine prescriptions were non-compliant with the legislation.
17. Mr Ang dispensed repeats for all OTP prescriptions (see IMG_2470 and 2471 below). I enquired Mr Ang why and how he dispensed repeats when there was none authorised on the original prescription. Mr Ang said that he estimated the number of repeats required for the life of the prescription and dispensed the repeats each time the patient came for a dose. Mr Ang was unaware that the prescription number for a prescription had to remain the same for the life of that prescription. Mr Ang also said that he had no previous experience providing Opioid Treatment Program prior to commencing the program in his pharmacy. So he was delivering the program in a way which worked for him.
18. I asked Mr Ang whether he read the NSW OTP Community Pharmacy Dosing Protocol TG201, Mr Ang said he may have read it when he signed up to provide OTP at his pharmacy. I asked if Mr Ang understood the Protocol to which Mr Ang answered that he thought he did.
19. Mr Ang said he did not use the subsidiary drug register since he had only 5 patients on the program. He said that the record of supply of methadone and buprenorphine were made directly into the main drug register. According to Mr Ang, the drug register entries were made by [Person I] which were then verified and signed by him.
20. When I enquired Mr Ang how he can tell when patients miss doses, he was unsure about the missed dose protocol. It was clear from the dispensing data that Mr Ang supplied methadone and buprenorphine contrary to the NSW Community Pharmacy OTP Dosing Protocol TG201.
1. Secondly, the OTP Patient Information Report dated 11 September 2019 for some 6 patients including Patients B and G.
2. Thirdly, the Patient History report for Patient G.
3. Fourthly, the OTP Inspection Report 11 September 2019 which notes "repeats generated by estimation of expiry date"; no recording of doses; no drug register entry for each dosing/day; that the drug register was not up to date; that scripts were not available and referred to when dosing, and that takeaway doses were not labelled correctly.
4. Fifthly, the OTP patient list for 11 September 2019 for Patients B and G.
5. Sixthly, a methadone prescription script for Patient's G methadone dated 10 September 2019 which provided for daily dosing with no repeats.
6. Seventhly, the drug register entry for Patient G (which does not clearly show any patient takeaway doses or missed doses).
7. Eighthly, dispensing records for Patient G which show multiple repeats with new script numbers and, concerningly, a gap on 22 August and a large gap between 30 August and 5 September.
8. Ninthly, prescription dated 28 August 2019 for Patient B for Suboxone which provided weekly dosing with no repeats.
9. Tenthly, the drug register for Patient B which does not clearly show any patient takeaway doses or missed doses.
10. Eleventhly, the dispensing records for Patient B, which shows multiple repeats with new script numbers and, that scripts that were to be dispensed on Fridays were actually dispensed on days including one Saturday, one Thursday and one Wednesday.
11. In addition, Commission relies on:
1. the OTP protocol;
2. the practitioner's statement to the Tribunal in which he stated that there may be a better way and "generated" repeats for record-keeping;
3. the expert report which states that in circumstances where the practitioner did not have a clear system to record takeaways or missed doses and entries were not made into the register at the time of supply of doses, the conduct is significantly below the standard expected, as it could allow errors to be made or double dosing of patients on the program did not keep appropriate records regarding patient takeaway doses or missed doses for OTP patients;
4. the expert's oral evidence to the effect that the practitioner's system of generating repeats was not common or standard practice, was not legal, would not be easy to track missed doses, and would be difficult for a locum to follow. The expert was also concerned that the records for Patients B and G did not provide clear record keeping if they missed a dose or came on a different day;
5. the practitioner's oral evidence to the effect that he went through the OTP protocol when he joined, he knew it was important to record missed doses and takeaway doses, he had used the subsidiary drug register (SDR) previously, he knew the SDR was easier with multiple patients and he offered several justifications for his alternative method (to avoid double handling, to prove when the patients paid, to issue repeats which were "implied", to use a "better way").
Practitioner's submissions
1. In summary, the practitioner submitted that:
1. when he asked for particulars before the hearing as to what "appropriate" records means in the context of Particular 1(h), the Commission responded that the Particular was based on the expert report;
2. Ms Croker, when taken in cross examination to the relevant prescriptions at Tabs 63 and 64 of the Commission's documents (by way of example for Patient B to demonstrate compliance and that a clear record was actually kept, in addition to instructions being provided on the repeats), said she had not seen this record before when she was writing her report;
3. in her report, Ms Croker stated at [14]:
In the case that Mr Ang did not keep a subsidiary register but was able to produce evidence of records which were clear in when patients received doses, how many take away doses or any missed doses etc; and the S8 drug register was completed daily with all OTP dispensing supplies, then his conduct would meet the standard expected.
1. Ms Croker said after being taken to these documents, that her criticism was no longer the record itself not being made, but rather the seven day interval was not complied with between dispensing suboxone. Ms Croker referred to the period of 20 to 26 July as being demonstrative of this;
2. this was not the substance of this Particular 1(h), the substance being that there was no "appropriate" record kept. It is submitted there was a clear record kept and the expert did not consider this when she made her statements at [13] to [15] of her report;
3. the OTP Treatment Program Resource Manual states:
The usual method is to record each dose daily as given, one patient per line, in a form as set out by the requirements of the provisions of Clause 112 of the Poisons and Therapeutic Goods Regulations, 2008 (drug register). When a pharmacy has multiple patients receiving OTP, a daily dosing subsidiary drug register book having the format outlined below may be used.
1. the practitioner stated he did not consider "usual" to mean "only". He employed an electronic patient history recording system that satisfied these requirements.
1. In the circumstances, the practitioner submits that Particular 1(h) is not proved to the requisite standard.
Commission's submissions in response
1. The Commission submits that:
1. the Tribunal would not accept the practitioner's evidence that he was "still learning" or just "observing how the [OTP] system worked" because he chose to sign up for the OTP in about 2015, he read the OTP Protocol when he joined, he was familiar with Guild's OTP Resource Manual (which clearly says that compliance with the OTP protocol is mandatory) and he had five OTP patients by September 2019;
2. the Tribunal would not accept the practitioner's evidence that his system worked because:
1. each time the practitioner "generated" a repeat, a new prescription number was generated (contrary to the protocol which required him to record a unique prescription number);
2. this would give the impression, to a locum or any other pharmacist, that a repeat was dispensed;
3. the practitioner's system did not work because it appears the practitioner did not notice that Patient G missed his Methadone doses during the gaps and Patient B received his Suboxone on the wrong days;
4. before embarking on his "innovative method", the practitioner should have sought professional advice.
1. In brief submissions in reply, the Commission states (footnotes omitted) that:
the expert was briefed with the report and script regarding [Patient B] on 3 February 2022 and listed them in her report dated 19 February 2022. It is unsurprising, given the volume of briefing material and lapse of time, that the expert could not recall them during the hearing and she appropriately took time to read them during the hearing.
1. The Commission otherwise maintains that Particular 1(h) should be proven for the reasons set out in its submissions in chief.
Consideration
1. The two OTP patients were Patients B and G.
2. As to Patient B, the fact that scripts that were to be dispensed on Fridays were actually dispensed on days including one Saturday, one Thursday and one Wednesday) creates real difficulties for any subsequent dispenser to know what was dispensed and when.
3. As to Patient G, their methadone supply is not recorded in the drug register in an appropriate manner to determine patient doses and takeaways; a locum pharmacist practising there would not be able to determine what was being dispensed.
4. While there is no one method or system of recording OTP dispensing, whatever method is used, that supervised doses and takeaway doses must be recorded in such a way as they can be identified. The practitioner's manner of recording did not identify doses as supervised or takeaway, so his system was not appropriate.
5. We are satisfied that Particular 1(h) is established.
Particulars 2(a), (b), (d) and (e)
1. These particulars are set out above.
2. These particulars are admitted by the practitioner. Independently of those admissions, we are satisfied that the evidence establishes the alleged facts.
3. The evidence is amply summarised in the Commission's detailed submissions. Given the practitioner's admissions, it is not necessary to reproduce the evidence in these reasons.
Particular 2(c)
1. Particular 2(c) was that, on the occasions listed on Schedule 3 to the Amended Complaint, the practitioner dispensed 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient D, in circumstances where he dispensed from some prescriptions which appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR.
Commission's submissions
1. The evidence relied on by the Commission to prove this Particular included that the subject prescriptions included quantities increased by hand, private scripts, missing fax numbers, close dates of dispensing (even only one or two days after previous dispensing), incorrect phone numbers, incorrect spelling of the prescriber's name and incorrect spelling of the quantity "fiften".
2. The Commission also relied on their expert's opinion that:
Mr Ang's supply of Durogesic 100mcg patches to [Patient D] during the period of 14th September 2018 to 17th July 2019, in large quantities, at frequent intervals, on prescriptions which did not meet legislative requirements in all cases, and which were later determined to be forgeries falls significantly below the standard expected. …Given the multiple errors in the prescriptions, and the frequency the prescriptions were being presented to the pharmacy (sometimes only one day apart), plus large quantities of potent opioids, it may be reasonable to expect that Mr Ang to have realized that the prescriptions were not appropriate and therefore should not be dispensed.
1. The Commission further relied on their expert's oral evidence which remained critical of the practitioner continuing to dispense, regardless of first impression, because she expected a pharmacist to do close checks, do further investigation, look closely because fentanyl is a very potent opioid, that can be a red flag so a pharmacist needs to be more vigilant. She observed that there were multiple occasions of possible drug seeking behaviour and different reasons for prescribing on close dates so that altogether, even if the practitioner believed the prescriber, it should have been a red flag.
Practitioner's submissions
1. In his Reply, the practitioner stated that at no stage prior to dispensing was he ever aware that any of the forged scripts were either actually forged or fraudulently obtained. He said that the scripts were on their face, not forged or fraudulent. He admits in hindsight that he should have contacted the doctor using contact details sourced independently from the patient and/or the script, which in turn would have identified that the scripts were forgeries.
2. The practitioner submits that in some respects, he was an innocent victim of an elaborate fraud, "duped" to use his expression.
3. The practitioner submits that the Commission's expert, Ms Croker, when taken to these forged scripts, agreed that they looked legitimate, however she said it was still incumbent upon the practitioner to verify them. Further, she was asked about those with a missing fax number and said this would not really raise a concern. She was asked if being from a geographical distance away would this raise a concern, and the expert said she wouldn't expect a pharmacist to question why someone was not from the suburb. One may do if the patient lived "very far away". Similarly, where the number fifteen was misspelled, she agreed it was not unusual for typographical errors on prescriptions such as this. Further it was submitted that the unusual surname of the doctor, if misspelled on a subsequent script, may have not readily been identified. Indeed, in evidence when the expert was shown a script where the surname of Dr Padmanabhan was misspelled, she said she had not even noticed that herself and it would not necessarily be picked up by the practitioner.
Consideration
1. On balance, given Ms Croker's qualified views, we are not satisfied that Particular 2(c) is proved.
Particular 3
1. Particular 3 was that on the occasions listed on Schedule 4, the practitioner dispensed Schedule 8 drugs of addiction, namely 2mg Alprazolam tablets, 80mg Oxycontin (Oxycodone) tablets, 250ml Oxynorm (Oxycodone) 1mg/ml liquid and 20mg Oxynorm (Oxycodone) tablets, to Patient G, including during the time when Patient G was an OTP patient, in circumstances where the practitioner failed to make sufficient enquiries with Patient G's prescribing doctors and Patient G's OTP prescriber.
Commission's submissions
1. The evidence relied on by the Commission includes the following:
1. the interim report;
2. the expert report where Ms Croker states:
Mr Ang would have been expected to have discussed the prescriptions presented by [Patient G] which were written by Dr Barich (for oxycodone) or Dr Javaheri (for alprazolam) with Dr Gupta (the opioid treatment program prescriber), particularly as it seems there was a pattern of which prescribers provided which medications. There was no evidence provided that Mr Ang contacted prescribers or was concerned about the medications he was dispensing to [Patient G], despite knowing he was on the opioid treatment program, and as such his conduct falls significantly below that expected.
1. Ms Croker's email where she states:
In the situation that Mr Ang did contact the prescribing doctors regarding those medications and checked with them regarding supply when [Patient G] was a patient on the OTP, his conduct would meet the standard expected.
1. the oral evidence of Ms Croker, where she explained that her reduced criticism was dependent on the Tribunal accepting that the conversations occurred and when the practitioner became aware that the patient was on the OTP;
2. the practitioner's oral evidence to the effect that he dispensed the medication in Schedule 4 of the Amended Complaint and that he knew the patient was on the OTP from February 2019.
Practitioner's submissions
1. The practitioner denies the facts set out in Particular 3 and further says:
1. he contacted the prescribing doctors via telephone;
2. when Patient G was initiated onto the OTP, the prescriber, Dr Gupta, contacted the Practitioner around 13 February 2019 to discuss the matter and informed the Practitioner that he would be prescribing the OTP for Patient G. This discussion included how Patient G would be introduced to the OTP, what medication was to be provided to him as opposed to what medication was to be limited and that he would monitor Patient G's response to the program and consider whether Alprazolam 2mg should be prescribed to him;
3. on 22 February 2019, Dr Gupta faxed over a prescription for this medication to be dispensed to Patient G;
4. on 7 March 2019, Dr Hossain Javaheri (Patient G's previous doctor prior to his participation in the OTP) called the Practitioner to inform that he will be writing a script for Patient G for Alprax 2mg and that he was aware that Patient G was on the OTP and that Dr Gupta had prescribed this medication to him before (script intervention attached at Tab 83 annexure). Dr Javaheri is well known to the practitioner;
5. on 15 March 2019, the practitioner spoke to Dr Antwan Barich and he confirmed that he wrote out the script for Oxynorm and was aware that Patient G was being treated by Dr Gupta pursuant to the OTP;
6. Ms Croker has now reversed her criticism in relation to Particular 3, as evidence was provided by the practitioner of him contacting Dr Gupta, Dr Javaheri and Dr Barich stating:
In the situation that Mr Ang did contact the prescribing doctors regarding those medications and checked with them regarding supply when [Patient G] was a patient on the OTP, his conduct would meet the standard expected.
1. the practitioner's oral evidence was to the effect that he dispensed the medication in Schedule 4 of the Amended Complaint and that he knew the patient was on the OTP from February 2019;
2. in relation to contacting Dr Gupta, the Commission has overlooked the practitioner's evidence in his statement where he outlined a call was made on 13 February 2019 and a fax received for this medication from Dr Gupta on 22nd February 2019;
3. the Commission did not contact Dr Gupta to refute this evidence, despite this being in the practitioner's s 40 response and having ample opportunity. Nor was the practitioner challenged in cross-examination that this evidence was contrived or false or mistaken. Therefore, the Tribunal should accept the evidence of the practitioner;
4. a similar submission is made with respect to the calls made to Dr Barich and the script interventions of those calls made on 7 and 15 March 2019. This evidence was not challenged by the Commission;
5. in relation to the call allegedly made to Dr Javaheri on 7 March 2019, the practitioner concedes that a letter was not submitted from Dr Javaheri. However, as the Commission did not challenge the practitioner that this call was never made, the Tribunal should accept the evidence of the practitioner.
1. In summary, the practitioner submits that his evidence should be accepted, as should the views of Ms Croker. He submits that Particular 3 has not been proved to the requisite standard.
Commission in response
1. The Commission notes that:
1. the practitioner claims that he spoke to the OTP prescriber Dr Gupta on 13 February 2019 but there is no contemporaneous record to verify that;
2. the practitioner claims he spoke to the Alprax prescriber Dr Javaheri on 7 March 2019, but did not file in the proceedings any letter from Dr Javaheri;
3. the practitioner claims he spoke to the Oxynorm prescriber Dr Barich on 15 March 2019, but did not to file any letter from Dr Barich;
4. there is no evidence that the practitioner spoke to the OTP prescriber Dr Gupta before dispensing on 7 and 15 March 2019;
5. the practitioner's oral evidence suggests he took a lax approach to his professional responsibility when dispensing opioid medication to an OTP patient: the practitioner claimed it was not unusual to dispense opioid medication to an OTP patient and said "if they didn't want patients to be using any opioids, it should say so".
Consideration
1. We agree. On balance, we are not satisfied that this Particular is proved.
Particular 4
1. Particular 4(a) was withdrawn during the hearing.
2. Particular 4(b) was that on 30 October 2018, the practitioner dispensed 50 2mg Alprazolam tablets, a Schedule 8 drug of addiction, to an animal "Patient C" in circumstances where the prescription was dated more than 6 months before the date on which the supply was requested, contrary to cl 86(1)(e) of the PTGR.
3. We note that cl 86(1)(e) of the PTGR provides that a pharmacist must not supply a drug of addiction on prescription "if the prescription is dated more than 6 months before the date on which the supply is being requested".
Commission's submissions
1. The Commission relied on the following evidence:
1. the prescription (prescribed on 13 April 2017, dispensed on 30 October 2018);
2. the patient dispensing record;
3. the interim report;
4. the expert opinion where Ms Croker states:
dispensing a prescription for alprazolam to a dog on 30th October 2018 which had been prescribed in April 2017 (18 months prior and therefore expired) and failing to record the necessary details including the name of animal's owner, falls significantly below the standard expected.…The most concerning issue with Mr Ang's conduct in dispensing this prescription is the fact it was significantly past the expiry date …Mr Ang explained this as being because his software did not make an alert. Regardless of whether there was an alert pop up, the pharmacist should be checking to ensure the prescription is a legal and valid prescription …and as such it would be expected the pharmacist would realise the prescription was out of date prior to dispensing"
1. the expert's oral evidence that she expected a pharmacist should be checking the prescribing date, should not be relying on the system, in circumstances where no script (animal or human) is valid for 18 months;
2. the practitioner's oral evidence to the effect that when he dispensed the medication, that his software was not updated and that it was his responsibility to check that any Schedule 8 script was not expired.
Practitioner's submissions
1. The practitioner submits that he accepted this error occurred but "in mitigation" states that for veterinary prescriptions, his software supplier had not updated the "up-scheduling" for veterinary prescriptions of alprazolam (which changed on 1 February 2014) as it was a rare occurrence. In all other instances of dispensing Schedule 8 medication, the pharmacy computer would red flag the expiry date. The practitioner says that this was a genuine error, and a "one off".
2. The expert rated this conduct as significantly below at a time when she was under the misguided view that Particular 4(a) had also been established and her oral evidence was prior to the Applicant withdrawing particular 4(a).
3. Given the unique circumstances here, it is submitted that the departure by the practitioner should be categorized as "below" but not "significantly below". This anomaly in the software has been corrected and will not occur again.
Commission in reply
1. The Commission submits that the Tribunal should not accept the practitioner's justifications that his dispensing software was not updated for veterinary scripts because:
1. Alprazolam was up-scheduled to Schedule 8 of the Standard for the Uniform Scheduling of Medicines and Poisons on 1 February 2014 (in response to the increasing illicit use of alprazolam and evidence of alprazolam dependence);
2. the practitioner regularly dispensed Alprazolam for other patients in 2017-2018 (so he must have been well aware that Alprazolam was a Schedule 8 drug);
3. the practitioner checked that vets were able to prescribe Schedule 8 drugs (and he knew that Schedule 8 drugs are tightly regulated);
4. even if the practitioner incorrectly assumed that Alprazolam was still a Schedule 4 drug, a pharmacist must not supply a Schedule 4 drug if the prescription is dated more than 12 months before the date on which the supply is being requested;
5. the practitioner should have been alert to potential red flags including that it was a prescription for an animal, the highest dose (2mg) and the prescriber was "Dr Vet";
6. even if the practitioner's software did not flag that the script was expired, the practitioner should have noticed that it was 18 months old.
1. The Commission also submits that it is artificial to suggest that the conduct in Particular 4(b) is not significantly below the relevant standard because Particular 4(a) has been withdrawn. The Commission submits that the expert remained critical of the conduct in Particular 4(b) and gave oral evidence to the effect that her "main criticism was the date".
Consideration
1. In our view, the effect of the practitioner's concession is that Particular 4(b) is established.
2. The circumstances as explained by the practitioner ("out of date software leading to a 'one off' error") are relevant to our consideration of whether this conduct forms unsatisfactory professional conduct as well as to our consideration of the appropriate protective order.
Particular 5
1. Particular 5 was that on the occasions listed on Schedule 5, the practitioner dispensed 5mg Endone tablets, a Schedule 8 drug of addiction, to Patient A in circumstances where:
1. he dispensed non-therapeutic quantities contrary to cl 109 of the PTGR (Particular 5(a));
2. he dispensed at shorter intervals than indicated, contrary to clause 86(1)(c) of the PTGR (Particular 5(b).
1. We note that cl 109 of the PTGR provides that a pharmacist "must not supply any drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances."
Commission's submissions
1. The Commission relies on the following evidence:
1. the scripts written by Dr Clarke (including scripts dispensed on 28 May 2019, 13 and 25 June 2019, 9 and 23 July 2019, 6 and 20 August 2019 and 5 and 11 September 2019 (each for Endone 5mg, each with the direction to take 1 tablet qid (4 times a day), most with a handwritten repeat interval "5/7" (5 days) and each with the dispensing initial "JA");
2. the patient dispensing record (including scripts dispensed on those dates);
3. the Endone dispensing record (including scripts dispensed on those dates);
4. the drug register (including scripts dispensed on those dates);
5. Ms Croker's opinion that:
"Mr Ang's supply of Endone to Patient A between 28th May 2019 and 11 September 2019 falls significantly below the standard expected… On most occasions of dispensing she was given three prescriptions on the same day (so a total of 120 tablets). On one occasion (28th May) it appears she was dispensed two prescriptions (= 80 tablets) and on one occasion (11th September) she was dispensed four prescriptions (= 160 tablets). …The repeat interval specified (as required under law) was five days. … Mr Ang stated that he spoke to the prescriber who "allowed" him to dispense the repeats earlier, and as such he gave the entire supply (one script and two repeats = 120 tablets) on the same day on most occasions. … Even if the prescriber did state it was ok to dispense all on one day, it would require him to issue a new prescription to meet legislative requirements."
1. the expert's oral evidence, maintaining her criticism, maintaining that there should be an interval between supplies, regardless of whether they are new or old scripts and that the purpose of the interval between supplies is to ensure that the patient does not get an excess quantity which is not clinically indicated;
2. the practitioner's oral evidence that he dispensed the medication listed in Schedule 5 of the Amended Complaint, that the quantity escalated and that he should have paid attention to the repeat interval;
3. the practitioner's oral evidence suggests he took a lax approach to his professional responsibility to ensure that patients do not receive excessive quantities:
I've spoken to Dr Clarke many times… I just reprint… he said just give immediate supply…he must be satisfied he is still able to prescribe.
1. The Commission submits that:
1. the practitioner dispensed an excessive quantity and disregarded the interval period (1,080 tablets over 106 days, if taken as directed at 4 tablets per day, should have lasted 270 days);
2. the practitioner dispensed escalating quantities (starting with 80 tablets on 28 May 2019 and increasing to 160 tablets on 11 September 2019);
3. even if the practitioner asked Dr Clarke before dispensing the repeats and he said "Yeah, she's cool", the practitioner should have made further enquiries (he knew the prescriber was not a pain specialist, he did not know why the prescriber had written the total quantity, he did not ask the prescriber for a new script with the total quantity; he never told the prescriber the script was illegal, he did not ask whether the prescriber had an authority to prescribe to a drug dependent person);
4. the practitioner knew that the patient was also taking Durogesic patches, knew the patient was drug dependent, and knew the potential risk of excessive Endone (hypoanalgesia).
Practitioner's submissions
1. The practitioner denies the facts set out in Particulars 5(a) and (b) and further says:
1. the practitioner was in regular contact with the Patient A's prescriber, namely Dr Peter Clarke, about her dosage. Dr Clarke informed the practitioner that Patient A's Endone prescription was a workers compensation prescription and advised the practitioner to treat the prescription as a private non-NHS. The practitioner was further informed by Dr Clarke that if Patient A required a repeat in circumstances where she was unable to attend the Pharmacy, the prescription should be supplied as "immediate supply". Dr Clarke would usually provide Patient A with extra prescriptions;
2. with hindsight, the practitioner admits he should have dispensed from different repeat scripts in order to comply with the PTGR instead of using the same repeats on the same day, as the Practitioner had intended to use her older scripts first.
1. The practitioner submits that while cl 190 of the PTGR states that an "authorised practitioner or pharmacist must not supply any drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances", the Commission has led no evidence at all of "what was appropriate" in these particular "circumstances", and that the only person who has was the practitioner.
2. The practitioner submits that Ms Croker has merely stated that the drugs were dispensed not in accordance with the requisite intervals, and that there was no analysis as to whether these particular subjective circumstances for this patient warranted the departure as outlined in the letter by her treating doctor. The practitioner submits that the Commission made no contact with her prescribing doctor, Dr Clarke to ascertain this, despite having been served this letter some time ago. In addition, in cross-examination it was confirmed Ms Croker had not seen this letter and was taken to it. She then stated:
"Assuming the conversation took place, it may indicate more appropriate. The level of criticism may be reduced. If GP happy for patient to have that quantity – i.e. 120 tablets, then no reason why the prescriber couldn't have written that. Seemed may have been expected to prescribe that way".
1. Further extensive submissions are then provided by the practitioner. In summary, the practitioner submits that given the fact that Ms Croker did not know the unique circumstances of this patient, and had not seen Dr Clarke's letter, accordingly her evidence should be given very little to no weight in particular in so far as cl 109 of PTGR is concerned. In any event, Ms Croker conceded that assuming the general practitioner told the practitioner what is outlined in his letter (and this Tribunal would have no reason to doubt that), then her criticism is now reduced to only "below", which is not a significant enough departure from the requisite standard to justify unsatisfactory professional conduct.
2. Accordingly, it is submitted that Particular 5 is not proved to the requisite standard.
Commission in response
1. The Commission submits that the Tribunal would place limited weight on the practitioner's claim that Dr Clarke informed him to treat the prescriptions as "immediate supply" in circumstances where she was unable to attend the pharmacy because:
1. there is no contemporaneous intervention;
2. the patient usually came into the pharmacy about every 2 weeks and there is no evidence about when/why she was unable to attend;
3. Dr Clarke's letter does not mention any instruction to treat the scripts as private or any instruction to "immediate supply" (he has no specific recall of any conversation with the practitioner);
4. Dr Clarke has not seen the Amended Complaint and appeared to be ignorant of the allegations ("I am unaware of the specific actions allegedly undertaken" and "unaware that prescriptions I have provided have allegedly not been dispensed in accordance with legislative requirements");
5. if Dr Clarke had wished the patient to have the total quantity on one day, there was no reason for him to cross out "0" repeat interval and handwrite "5/7" to make the repeat interval of 5 days;
6. if Dr Clarke had wished the patient to have the total quantity on one day, the prescriber could have written a higher quantity with nil repeats;
7. the expert's oral evidence to the extent that Dr Clarke's letter does not change her opinion because the dispensing was still in greater quantities than expected on the scripts, Dr Clarke does not recall any conversation and it appears there was no formal conversation about dispensing multiple quantities on one day. If the Tribunal is satisfied there was such a conversation, the expert conceded that her level of criticism may be reduced but the expert maintained that if Dr Clarke was happy to for the patient to have that quantity there was no reason he could not prescribe it.
1. The Commission submits that the Tribunal would not accept the practitioner's explanation that he was attempting to use her older scripts first because:
1. regardless of whether the patient presented new or old scripts, it was the practitioner's responsibility not to dispense an excessive quantity;
2. dispensing multiple quantities (whether or not directed by the prescriber) may not be consistent with the safety of the patient and does not
promote regular review of therapy and effective provision of medicine information by pharmacists.
Consideration
1. On balance, and given the practitioner's concession that with hindsight he should have dispensed from different repeat scripts in order to comply with the PTGR instead of using the same repeats on the same day, we find Particulars 5(a) and (b) proved.
Particular 6
1. Particular 6 is that on 24 July 2019, the practitioner dispensed 15 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient F, in circumstances where the prescription appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR.
Commission's submissions
1. The evidence relied on by the Commission includes:
1. the prescription (prescribed and dispensed 24 July 2019);
2. the patient dispensing record;
3. the Durogesic dispensing record;
4. the drug register;
5. the intervention (noting the discrepancy between the dates, discussed further below);
6. the interim report;
7. the expert report where Ms Croker stated:
If the practitioner was not familiar with either the patient or with the prescribers handwriting it would be expected that the prescriber be contacted to verify the prescription. …Assuming Mr Ang was not familiar with the patient (this seems to be the only prescription noted for this patient) or the prescriber and he failed to verify the prescription his conduct falls significantly below the standard expected."
1. the expert email where Ms Croker stated:
If Mr Ang contacted or believed he had contacted the prescriber and confirmed the prescription, his conduct would meet the standard expected. I would raise however that it is unusual for a prescriber to tell a pharmacist to reduce the quantity of a prescription because it is not in stock - more usually it would be expected you supply the amount you have on hand and then order in and supply the remainder later. Also a prescriber should provide a new valid prescription if the quantity of medication is changed. So in the situation described by Mr Ang, I would expect that this change in quantity may have raised a red flag with Mr Ang. I would have also expected he request a new valid prescription to be provided.
1. the expert's oral evidence to the effect that her reduced criticism was dependent on the Tribunal accepting that a conversation where the prescriber authorised a reduced quantity actually occurred. The expert maintained that for a Schedule 8 script, a new patient, unfamiliar GP, regardless of anything else, she would expect a pharmacist to immediately try to verify the prescriber, and maybe more vigilant for more potent medication;
2. the practitioner's oral evidence that he noticed that it was a new patient, a new prescriber and the highest dose but he did not notice that there was no facsimile, that the patient was not local and that there was no facsimile number.
1. The Commission submits:
1. the practitioner's s150 evidence suggests he took a lax approach to his professional responsibility to exercise caution before dispensing to any new patient "if it was for one person, you probably thought, "Okay, yeah, that's," you know, you give them a break, they can do it. But then we started getting more scripts for these other people …". The practitioner's oral evidence suggests he also took a lax approach to the drug register because he did not notice that the drug register entries were non-chronological ("numbers look a bit blurred, unless you start counting them, doesn't strike out" … "Just all black and white writing to me, Just looking at the final quantity to check it balanced").
2. the practitioner knew, or should have known, that the prescription was forged or fraudulently obtained;
3. the practitioner should have paid attention to red flags including that it was a handwritten private prescription, no facsimile number, a new patient (no previous prescribing), a new prescriber (no entries on the lines above on the drug register), the highest dose of Durogesic (100mcg patch), a large quantity (15 patches), the patient address was not local (North Sydney) and the prescriber was not local (Moorebank);
4. the practitioner's claim about only having 5 patches in stock is consistent with the sticker (5 patches $55) but difficult to reconcile with the non-chronological entries in the drug register (indicating 15 patches dispensed then 35 remaining in stock on that date).
Practitioner's submissions
1. The Practitioner denies the facts set out in Particular 6 and further says:
1. in the s 150 hearing the Practitioner became confused on the assumption that Patient F was from the same doctor, namely Dr Akila Padmanabhan, who was involved in forged scripts for Patient D;
2. post the s 150 hearing, the practitioner revised all script interventions for patients raised during the hearing and located a specific script intervention for Patient F;
3. the practitioner gave evidence of these clinical script interventions in his s 150 hearing;
4. the script intervention record states the Practitioner contacted Dr Cho on 24 July 2019, who confirmed he had prescribed 15 Durogesic patches, and the practitioner informed Dr Cho that the Pharmacy only had five left. Dr Cho then advised the practitioner to reduce the dispensation to five patches, if the patient accepted that reduction. Accordingly, due to this intervention, there was nothing to suggest that the prescription was a forgery or was fraudulently obtained.
1. In summary, the practitioner submits:
1. there is nothing on the face of the script that would indicate it its fraudulent;
2. apart from a statement at in the interim report that this script is "forged" there is no analysis why or how this was proved. There is no evidence on whether Dr Cho was ever interviewed to see if this was his signature or whether his prescription pad had been stolen;
3. the Commission's submissions unfairly imply that the intervention was contrived, and should be disregarded, as nothing was properly put to the practitioner about this other than a brief exploration of the date discrepancy. Similarly, Dr Cho was never contacted. To make such a serious allegation (effectively alleging fraud committed by the practitioner), procedural fairness dictates this to be properly put and investigated. It is submitted this was not done and application of the Briginshaw principle [1] would mean no such finding should be made;
4. the practitioner's evidence of the script intervention should be accepted.
Commission in response
1. The Commission submits that the Tribunal would exercise caution before accepting the practitioner's claim that the prescriber authorized a reduced quantity and relying on the intervention regarding Patient F in circumstances where:
1. the practitioner's usual practice was to type and print his interventions on the same date (so the intervention date and the printing date should match);
2. for all 19 interventions for Patient D the intervention date and the printing date match;
3. for Patient F, the intervention date is 24 July 2019 but the printing date is almost two years later (just five days before his submission to the Commission);
4. unlike both interventions for Patient G (which were also attached to the practitioner's submission to the Commission), the intervention date and the printing date do not match so the Tribunal cannot be satisfied when/how the intervention regarding Patient F was prepared;
5. the intervention regarding Patient F suggests that the prescriber authorized a reduced quantity but that does not explain why the practitioner did not ask for a new prescription or make any record on the prescription to explain the reduction;
6. the intervention regarding Patient F suggests that the patient agreed with the reduced quantity but it is unusual that a patient would agree to surrender a prescription and receive less than the prescribed quantity (rather than obtaining the prescribed quantity elsewhere).
Consideration
1. On balance, we are not satisfied that this Particular is established. The evidence appears to be balanced between whether the prescriptions were forged or fraudulently obtained or not. As the probabilities are balanced, we find that the Commission has failed to prove this Particular.
Particular 7
1. Particular 7 is that on 26 July 2019, the practitioner dispensed 10 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient E in circumstances where the prescription appeared to have been forged or fraudulently obtained, contrary to cl 86(1)(f) of the PTGR.
Commission's submissions
1. The evidence relied on by the Commission includes the following:
1. the script (dated 25 July 2019, dispensed 26 July 2019);
2. the patient screen;
3. the dispensing report (including an entry for that prescription);
4. the interim report;
5. the expert report where Ms Croker stated:
Mr Ang's conduct in dispensing a prescription to [Patient E] on a prescription that was found later to be forged falls below the standard expected"
1. the practitioner's oral evidence to the effect that when he dispensed the script, he noticed that it was a new patient with the highest dose.
1. The Commission submits that, although the expert opinion is that the conduct is only "below" the relevant standard, it is open to the Tribunal to find that the conduct is significantly below the relevant standard because:
1. the practitioner knew, or should have known, that the prescription was forged or fraudulently obtained;
2. the practitioner should have paid attention to red flags including that it was a private prescription, no fax number, incorrect phone number, a new patient (no previous prescribing), the highest dose of Durogesic (100mcg patch), a large quantity (10 patches) and the patient address was not local (Mortlake);
3. the practitioner's claim that this is an "isolated incident" is difficult to accept in circumstances where he had already received multiple scripts from the same prescriber (Dr Padmanabhan) to another patient (being Patient D) and was already alert to concerns;
4. the expert's oral evidence fairly conceded that this was a "one off" prescription to this patient but that if the practitioner had concerns about previous scripts from Dr Padmanabhan to Patient D, then she would expect the practitioner to take that into account;
5. the practitioner's s 150 transcript suggests that the practitioner had concerns about this prescriber when "a few more came in and then I said this doctor is - you know, she may be overprescribing it or just writing it for anybody that she sees" and he told his friend that he may have done something wrong;
6. the practitioner's oral evidence to the effect that he spoke to the purported prescriber and had concerns "She said I have other clients on the Durogesic as well. After that I felt that it wasn't an isolated client, Maybe too many people involved".
Practitioner's submissions
1. The practitioner denies the facts set out in Particular 7 and further says that the prescription was computer-generated and an isolated incident and accordingly did not appear to be forged or fraudulently obtained.
2. The practitioner submits that this was another "one off" fraudulent script in that it was a new patient, but from a previously "verified" prescriber.
3. Ms Croker when shown this script said that, on the face of it, it did not look fraudulent.
4. Further, the practitioner knew the prescriber's handwriting and had "apparently" spoken to this doctor many times.
5. In oral evidence, the practitioner said he felt he had verified this doctor previously by the number of conversations he had apparently had with her and said that he recognised her signature (that is, her handwriting).
6. It is submitted cl 87(1)(a) PTGR therefore applies. The practitioner in recognising the signature of a doctor whom he had previously verified by talking to someone purporting to be her satisfies cl 87(1)(c) of the PTGR.
7. Finally, it is noted that the expert stated in her report that as this was a "one off" which would not have been expected to raise any red flags, and it appears he recognised the prescriber handwriting (and therefore was not required to contact the prescriber) "I do not believe this conduct was significantly below the standard expected".
Consideration
1. Notwithstanding the practitioner's partial concession, given Ms Croker's views that this "one off" would not be expected to raise any flags, we are not satisfied that Particular 7 is established.
Particular 8
1. Particular 8 is that on 24 August 2019, the practitioner dispensed 100 20mg Dehydroepiandrosterone (DHEA) capsules, a Schedule 4D restricted substance, to Patient H in circumstances where:
1. he dispensed at a shorter interval than indicated, contrary to cl 40(1) of the PTGR (Particular 8(a));
2. the DHEA had been dispensed and compounded at another pharmacy (Particular 8(b)).
1. We note that cl 40(1)(c) of the PTGR provides that:
… a pharmacist must not supply a restricted substance on prescription if the interval of time that has elapsed since the substance was last supplied on the prescription is less than that indicated by the prescription as the minimum interval that must elapse between successive supplies of the substance.
Commission's submissions
1. The evidence relied on by the Commission includes:
1. the prescription (dated 18 April 2019, stipulating 1 month interval, with a sticker indicating dispensed on 2 August 2019);
2. the patient record (dispensed 100 capsules on 2 August 2019 with the direction to take 1 tablet daily then dispensed another 100 tablets on 24 August 2019 with the same direction);
3. the dispensing record at the practitioner's pharmacy;
4. the dispensing record at Kingswood Pharmacy;
5. the supplementary report;
6. the facsimiles from the practitioner to "Adam" at Kingswood Pharmacy on 14 May 2019 and other dates;
7. the undated note on the dispensing profile to the effect that the patient has a prescription for DHEA, an instruction to call Kingswood Pharmacy to deliver it and charge the practitioner's credit card;
8. the practitioner's evidence during the s 150 hearing to the effect that Patient H came in for DHEA, the practitioner does not compound DHEA, the practitioner "had to figure out where to get it from", the practitioner faxed the prescription to Kingswood Pharmacy, the practitioner said "Yeah, just put the price the same, like $10 above what you're charging me so then it will balance," the Kingswood Pharmacy kept the original prescription and provided the medication to the practitioner with an EFTPOS docket that attached to the practitioner's credit card and the practitioner entered the medication into the dispensing system and issued a receipt for $10 more;
9. the practitioner's s 40 submissions that he faxed the prescription to Kingswood Pharmacy on 14 May 2019, claims he was acting as an agent for the patient to source the DHEA from Kingswood Pharmacy and claims he charged the patient a small sourcing fee;
10. Ms Croker's opinion was that:
Mr Ang's conduct in proving [Patient H] DHEA capsules on 2nd August 2019 and again on 24th August 2019 when the prescription stated a one month dispensing interval, falls significantly below the standard expected. …All pharmacists are expected to be familiar with and understand the need for dispensing medications only after the appropriate repeat interval as prescribed. … Mr Ang's practice of dispensing DHEA capsules which had been dispensed and compounded at another pharmacy, Kingswood Compounding Chemist, falls significantly below the standard expected."
1. Ms Croker's oral evidence to the effect that it was not appropriate that the dispensing records at the practitioner's pharmacy and Kingswood Pharmacy appeared to show that the medication was dispensed twice, that it is unclear from the competing documentation who actually provided the medication and counselling to the patient.
Practitioner's submissions
1. The Practitioner denies the facts set out in Particulars 8(a) and (b) and further says that:
1. he dispensed in accordance with the intervals on the prescription as evidenced by the fax confirmation sheets;
2. the prescription for the DHEA capsules were faxed to the Kingswood Compounding Pharmacy on 14 May 2019, who subsequently delivered it;
3. the practitioner then faxed the repeats on a monthly basis, namely 20 June 2019, 19 July 2019, 19 August 2019 and 19 September 2019, which was in accordance with the monthly intervals on the prescription.
1. The practitioner submits that:
1. he was acting as a distributing agent to a person well-known to him and regular client. He gave evidence that the medicine was indeed labelled with Kingwood Pharmacy labelling and the patient knew that it had been compounded there and he was merely collecting it from the practitioner who was his local and usual pharmacy, and paid a small extra amount for this convenience to the practitioner, who was acting as an agent;
2. while Ms Croker said the risk was that "it appears it has been dispensed twice", when pressed on this she said if Kingswood labelled it and it was dispensed by them with that clearly indicated, and the supplier explained the drug risks at the time, then it would not be a concern;
3. his pharmacy was only acting as the pick up agent, and therefore they did not have the original script or the ingredients to compound and therefore dispense the DHEA;
4. there was never a double dispensing and his records were just supply confirmations.
Commission in reply
1. The Commission submits that the Tribunal would not accept the practitioner's explanation that he faxed the repeats on a monthly basis in accordance with the monthly intervals on the prescription in circumstances where:
1. a repeat interval is specified by a prescribing medical practitioner;
2. the purpose of specifying a repeat interval is to make sure that the patient does not receive more medication until he needs it;
3. regardless of when the practitioner faxed the medication to Kingswood Pharmacy and regardless of when it was delivered to the practitioner's pharmacy, it remains important that Patient H did not receive more medication until he needed it;
4. in oral evidence, the practitioner accepted that the medication was provided to the patient on 2 August 2019 (which is logical and consistent with the sticker on the prescription, the patient record and his dispensing record) "customer came to collect on 2 August to pick it up";
5. however, the practitioner refused to accept that he provided the medication to the patient on 24 August 2019 (which is illogical and inconsistent with the patient record and his dispensing record);
6. the 100 tablets provided on 2 August 2019, if taken as directed once a day, should have lasted 100 days so the patient did not need another 100 tablets only 20 days later;
7. the practitioner appears to have taken a lax attitude to his responsibility to only provide medication to the patient in accordance with the repeat interval, claiming he was "just a collecting point."
Consideration
1. We are satisfied on the evidence relied on by the Commission and its response to the practitioner's submissions that Particulars 8(a) and (b) are established.
Particular 9
1. Particular 9 is that on 28 August 2019, the practitioner dispensed 84 Suboxone (Buprenorphine + Naloxone) 8mg/0.5mg films, a Schedule 8 drug of addiction, to Patient B, an OTP patient, in circumstances were the practitioner dispensed 15 repeats which were not indicated, contrary to cl 86(1)(b) of the PTGR.
Commission's submissions
1. The evidence relied on by the Commission includes:
1. the OTP patient report;
2. the original prescription (noting that, the medical practitioner did not authorize any repeats);
3. the prescription dispensed on Wednesday 28 August 2019 (the practitioner having typed that 15 repeats were authorized);
4. the drug register;
5. the dispensing (which shows that the previous script and this script were to be dispensed weekly on Fridays but were actually dispensed on dates including one Saturday, one Thursday and one Wednesday and which also shows that each "repeat" generated a new script number);
6. the expert's opinion that the practitioner's conduct fell significantly below the standard;
7. the expert's oral evidence to the effect that the way it was dispensed through the system does not meet legislative requirements because generating repeats creates a new prescription number.
Practitioner's submissions
1. The practitioner submits:
1. the process of creating 15 repeats for Suboxone in his dispense system constituted the "issuing" of repeats or the modification of the original prescription in the sense that the dispensing process is the physical provision of the medication to the patient on each occasion they presented;
2. this method was an attempt to streamline the process of charging the patient by processing a repeat in the dispense system each time a dose was supplied. It is accepted his method deviated from normal practice and may have created confusion by a third party audit. The main issue leading to potential confusion was that the computer system allocated a different prescription number to each supply in the drug register rather than using the original script number each time. However, from the report, one could still identify which one was the original script and which were the subsequent supply;
3. the Commission's submission that the original prescription did not authorise any repeats is incorrect;
4. despite this irregular method, the total supply of Suboxone to the patient did not exceed the amount prescribed. The drug register also reflects the correct amounts supplied. It is submitted this complaint is not proved.
1. Alternatively, if this particular is proved, the practitioner accepts that his conduct fell below the standard expected but not significantly below.
Consideration
1. We are satisfied on the evidence relied on by the Commission and its response to the practitioner's submissions that Particular 9 is established.
Particular 10
1. Particular 10 is that between 10 and 11 September 2019, the practitioner failed to keep the drug register at the pharmacy in circumstances where:
1. the practitioner permitted a non-pharmacist staff member, Person I, to take the drug register from the pharmacy on about 10 September 2019 contrary to cll 111(1) and 176(2) of the PTGR (Particular 10(a));
2. the practitioner failed to make the drug register available for inspection on demand by a PRU inspector on 11 September 2019, contrary to cl 176(3) of the PTGR (Particular 10(b)).
1. In addition, the practitioner admitted that he allowed a senior assistant, who was not a pharmacist, to remove the drug register from his pharmacy, and take it to her home despite the practitioner knowing that it was wrong.
2. Independently of those admissions, we are satisfied that the evidence establishes the alleged facts.
Particular 11
1. Particular 11 is that on 11 September 2019, the practitioner failed to appropriately store Schedule 8 medications as required by cl 76 of the PTGR in circumstances where:
1. 800 5mg Dexamphetamine tablets were stored in a locked black cabinet (Particular 11(a));
2. Alprazolam tablets listed in Schedule 6 were stored in a locked drawer (Particular 11(b));
3. 2400 Endone tablets, 105 0.4mg Subutex tablets and 35 30mg Oxycontin tablets were stored in a safe with a removable door (Particular 11(c)).
1. Particulars 11(a) and (b) are admitted by the practitioner. He knew that the Dexamphetamine should not have been stored in the black cabinet, nor should Alprazolam be stored in a drawer in the dispensary of the pharmacy. As Schedule 8 medications, both are required to be kept in a safe which may only be accessed by a pharmacist and must be locked when not in immediate use. Of concern, the practitioner had a new safe installed on 29 July 2019, yet on 11 September 2019, the day of the inspection, he had not moved the drugs to the new safe demonstrating a lax approach to his responsibilities regarding the safe storage of Schedule 8 medications.
2. Independently of the practitioner's admissions, we are satisfied that the evidence establishes the alleged facts.
Commission's submissions
1. As to Particular 11(c), the evidence relied on by the Commission includes:
1. the interim report;
2. [Person I's] statement;
3. the images of the cabinet, drawer and safe;
4. the inspection notes;
5. the Guideline;
6. the practitioner's oral evidence that he knew that the Dexamphetamine should not have been in the black cabinet and knew that the Alprazolam should not have been in the drawer and that it was an "oversight";
7. the expert report that the conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
8. the expert fairly conceded in oral evidence that if the Tribunal was satisfied that the door could only be removed when the safe was unlocked that would change her opinion about Particular 11(c).
1. The Commission submits that the practitioner demonstrated a lax approach to his responsibility to securely store Schedule 8 medications because the new safe was installed on 29 July 2019 but he had still not moved the Dexamphetamine and Alprazolam into it by the time of the inspection on 11 September 2019.
Consideration
1. The Commission also submitted that if the Tribunal accepts the practitioner's evidence that the door was only removable once the safe has been opened then Particular 11(c) may not be established.
2. We see no reason to reject the practitioner's evidence on this issue and accept his submission.
3. We find Particular 11(c) not proven.
Particular 12
1. Particular 12 is that on 13 September 2019, the practitioner failed to appropriately store Schedule 8 medications as required by cl 76 of the PTGR in circumstances where expired Schedule 8 medications and returned Dilaudid (Hydromorphone) injections were stored in a vaccine fridge in an unlocked room.
2. These particulars are admitted by the practitioner. Independently of those admissions, we are satisfied that the evidence establishes the alleged facts.
3. The evidence is amply summarised in the Commission's detailed submissions. Given the practitioner's admissions, it is not necessary to reproduce the evidence in these reasons.
Summary of conclusions re the Particulars of Complaint One
1. For the reasons set out above, we have found the following Particulars established:
1. Particulars 1(a) to (h);
2. Particulars 2(a), (b), (d) and (e);
3. Particular 4(b);
4. Particulars 5(a) and (b);
5. Particular 8;
6. Particular 9;
7. Particulars 10(a) and (b);
8. Particulars 11(a) and (b);
9. Particular 12.
1. The conduct the subject of these Particulars is set out above.
Relevant Law and principles
1. It is appropriate to set out the relevant provisions of the National Law and some relevant principles for interpreting those provisions.
National Law
1. Section 3, which provides:
3 Objectives and guiding principles
(1) The object of this Law is to establish a national registration and accreditation scheme for--
(a) the regulation of health practitioners; and
(b) the registration of students undertaking--
(i) programs of study that provide a qualification for registration in a health profession;
(ii) clinical training in a health profession.
(2) The objectives of the national registration and accreditation scheme are-
(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and
(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and
(c) to facilitate the provision of high quality education and training of health practitioners; and
(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and
(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
(3) The guiding principles of the national registration and accreditation scheme are as follows--
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
1. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms:
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. A "NSW provision" is defined in s 5 of the National Law as:
(a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or
(b) a NSW regulation.
Note —
This definition is an additional New South Wales provision.
1. Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides:
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.
…
(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. Section 139E of the National Law (again, an additional provision for NSW), provides:
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.
Relevant principles
1. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated:
21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30].
22. The Macquarie Dictionary offers several definitions of both words which include:
Improper
2. not in accordance with propriety of behaviour, manners, etc: improper conduct.
Unethical
1. contrary to moral precept; immoral.
2. in contravention of some code of professional conduct.
23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote:
Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both.
24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53].
25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct.
26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances.
1. Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60].
2. We further note that in Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 the Tribunal stated:
16. The terms "improper" and "unethical" conduct are not defined in the National Law and have been given their ordinary meaning by the Tribunal (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; [1998] 194 CLR 355). The Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" was adopted in Health Care Complaints Commission v Ross [2019] NSWCATOD 153, at [59].
17. In R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501, a case involving criminal prosecutions of company directors, the High Court accepted, at [24] that "improper" was an "indefinite term, not commonly used in the criminal law" and, at [25] that, although "not a term of art", the issue of impropriety needed to be determined by reference to "the particular duties and responsibilities of the particular officer whose conduct is impugned", which is not "subjectively" determined, but by reference to a "range of considerations that may be taken into account".
18. The Dictionary definition of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" was adopted in Ross, at [59], and in Health Care Complaints Commission v Little [2016] NSWCATOD 146.
Do the proven Particulars of Complaint One establish unsatisfactory professional conduct?
1. The Commission submits that the conduct in any of the Particulars of Complaint One (except Particular (8)) relied upon by the Commission in combination as a course of conduct involving failure to exercise care when dispensing and recording Schedule 8 medications amounting to unsatisfactory professional conduct:
* under s 139B(1)(a) of the National Law;
* under s 139B(1)(l) of the National Law;
1. Section 139B(1)(a) is set out above. We are satisfied that the proven Particulars of Complaint One (namely Particulars 1 (a) to (h); Particulars 2 (a), (b), (d) and (e); Particular 4(b); Particulars 5(a) and (b); Particular 9; Particulars 10(a) and (b); Particulars 11(a) and (b) and Particular 12) establish conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. We note we have excluded Particular 8 from the list of proven Particulars as establishing Complaint One, given that this was excluded by the Commission in the Amended Complaint. Perhaps this was a drafting error, a matter on which we express no view. Or perhaps the Commission intended to plead that Particular 8 could be relied on alone to establish Complaint One. Regardless of the position, we are satisfied that the conduct of the other Particulars established unsatisfactory professional conduct.
3. Accordingly, we find the practitioner guilty of unsatisfactory professional misconduct under s 139B(1)(a) of the National Law.
4. We note that, in any event, the practitioner admitted he was guilty of unsatisfactory professional misconduct under s 139B(1)(a) of the National Law.
5. The issue of whether or not the practitioner admitted he was guilty of unsatisfactory professional misconduct as defined in s 139B(1)(l) of the National Law was not pressed by the Commission in its submissions.
6. For the avoidance of doubt, we do not find the practitioner guilty of unsatisfactory professional misconduct as defined in s 139B(1)(l) of the National Law.
Do the proven Particulars of Complaint Two establish professional misconduct?
Commission's submissions
1. After noting that the evidence for Complaint 2 is the evidence for Complaint One, the Commission submits that the relevant principles include:
1. professional misconduct is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19];
2. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411;
3. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
1. The Commission places great reliance on Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 at [54] to [57]:
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. …
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 Commission submits that, a health practitioner who prescribes or handles drugs of addiction recklessly and contrary to the law engages in conduct which constitutes professional misconduct. There the Commission relies on Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep), where Hope JA stated (Reynolds and Hutley JJA agreeing):
"In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner".
1. The Commission submits that in Health Care Complaints Commission v Patel [2022] NSWCATOD 9 at [118] the Tribunal confirmed:
There is no reason why these comments made in Spicer should not apply equally in the case of pharmacists who are also given the privilege of supplying restricted drugs to the public, including drugs of addiction in response to a prescription issued properly and appropriately, and subject to the duty of care which is inherent in the exercise of their profession. Indeed, pharmacists have been described in this Tribunal as being representative of the "gatekeepers" to access to these drugs by the public. As such there are very good policy reasons why the responsibility of pharmacists extends beyond the mere filling of prescriptions. As will have been seen from our reference to some of the various provisions of the PTGR, pharmacists are required by law to make an assessment of the authenticity of a prescription for these drugs, the appropriateness of those drugs for use by patients especially having regard to the quantity and frequency of their use, and the period over which the drugs are to be used. There are also extensive requirements to ensure that these drugs are secured and that appropriate records are kept so as to ensure that the receipt and dispersal of these drugs are recorded by pharmacists."
1. In summary, the Commission submits that the practitioner's conduct is conduct of a sufficiently serious nature to justify cancellation as:
1. the practitioner had ample training and qualifications so he must have been aware of the requirements for proper records, safe prescribing and proper storage;
2. the practitioner's conduct occurred over a lengthy period and in respect of several patients so it was not an isolated error;
3. the practitioner's conduct posed a potential risk of harm.
Practitioner's submissions
1. The practitioner submits that cancellation of his registration is not justified or required to protect the public and if the Tribunal has any residual concerns in relation to protection of the public, then these concerns can be adequately dealt with by way of the proposed conditions or alternatively any variation to those, that the Tribunal deems appropriate.
2. The practitioner submits that there are a number of factors, both individually and cumulatively, which warrant a finding of professional misconduct not being established. These factors are as follows.
3. First, there was genuine confusion in the legality of his Pharmacy Manager, Person I, making entries in the Drug Register.
4. Secondly, Person I stated that she began looking after the entries on a more regular basis over the last few years, in a period where the practice became "busier and busier" and when there were challenges in the practitioner's home life that distracted him. While not provided as an excuse, it explains in part some of the identified deficiencies with his pharmacy practice and may detract from the seriousness of his identified deficiencies.
5. Thirdly, other deficiencies "go to" the practitioner trying to be creative or efficient in his pharmacy practice:
At the end of the day, a Pharmacy is a small business and so long as patient care is not compromised, if efficiencies lead to cost savings in a competitive commercial environment, then that factor alone should not be a source of criticism.
1. Fourthly, other examples of being misled by Pharmacy Inspectors include the safe that had the removable door. There is also evidence that at least a significant portion of missing medication was either not properly recorded after the destruction of medicines by the Police Officer, was possibly left in an inaccessible part of the old safe that was angle grinded to remove medication or was not recorded as at the date when all records were seized.
2. Fifthly, there was no evidence of any malice, ill intent, or fraud. The practitioner did make an admission against self-interest that "there may have been a slight element of greed at play at that time through stress or working lots of hours. Could have been. Not a primary motivator." He is also human, a small businessman with commercial pressures and no doubt has made mistakes. His evidence was credible and he was contrite for his shortcomings and has learned from the very challenging experience of these disciplinary proceedings, during which he has been suspended for a very lengthy period (2 years and 8 months).
3. Sixthly, the practitioner was the victim of an elaborate fraud with respect to Patient D and encountered a situation unlike what he had encountered before, with genuine looking scripts and third parties pretending convincingly they were the prescribing doctors. Other fake scripts were "one offs", and were "convincing fakes" according to Ms Croker.
4. Seventhly, it is also relevant that the drug being fraudulently obtained was Durogesic (patches). The practitioner had not encountered or heard of this being abused before and did let his "guard" down. He said he had only heard of and encountered tablets being abused. There is no evidence of any warning made from Professional Pharmacy bodies warning practitioners of similar abuse nor of third parties being involved when called on numbers printed on script letterheads. It is submitted these factors should all be taken into account when assessing the seriousness of then practitioner's conduct.
5. Eighthly, the practitioner accepts that his practice was operating at a level that constitutes unacceptable professional conduct. He says this experience will make him a better and more professional pharmacist, and provide him with more confidence in the future to challenge prescribing decisions of doctors.
Consideration
1. It suffices to say that the practitioner has been found guilty of conduct which includes:
1. in the period 1 May 2018 to 11 September 2019, failing to maintain the register for Schedule 8 drugs of addiction;
2. on the 37 occasions listed on Schedule 3 to the Amended Complaint dispensing 100mcg Durogesic (Fentanyl) patches, a Schedule 8 drug of addiction, to Patient D;
3. dispensing 50 2mg Alprazolam tablets, a Schedule 8 drug of addiction, to an animal "Patient C" in circumstances where the prescription was dated more than 6 months before the date on which the supply was requested, contrary to cl 86(1)(e) of the PTGR;
4. on the 27 occasions listed on Schedule 5 to the Amended Complaint, the practitioner dispensed 5mg Endone tablets, a Schedule 8 drug of addiction, to Patient A in circumstances where he dispensed non-therapeutic quantities contrary to cl 109 of the PTGR and he dispensed at shorter intervals than indicated, contrary to cl 86(1)(c) of the PTGR;
5. on 24 August 2019, dispensing 100 20mg DHEA capsules, a Schedule 4D restricted substance, to Patient H in circumstances where he dispensed at a shorter interval than indicated, contrary to cl 40(1) of the PTGR and the DHEA had been dispensed and compounded at another pharmacy;
6. on 28 August 2019, dispensing 84 Suboxone (Buprenorphine + Naloxone) 8mg/0.5mg films, a Schedule 8 drug of addiction, to Patient B, an OTP patient, in circumstances were the practitioner dispensed 15 repeats which were not indicated, contrary to cl 86(1)(b) of the PTGR;
7. between 10 and 11 September 2019, failing to keep the drug register at the pharmacy in circumstances where the practitioner permitted a non-pharmacist staff member, Person I, to take the drug register from the pharmacy on about 10 September 2019 contrary to cll 111(1) and 176(2) of the PTGR and the practitioner failed to make the drug register available for inspection on demand by a PRU inspector on 11 September 2019, contrary to cl 176(3) of the PTGR;
8. on 11 September 2019, failing to appropriately store Schedule 8 medications as required by cl 76 of the PTGR in circumstances where 800 5mg Dexamphetamine tablets were stored in a locked black cabinet Alprazolam tablets listed in Schedule 6 to the Amended Complaint were stored in a locked drawer;
9. on 13 September 2019, failing to appropriately store Schedule 8 medications as required by clause 76 of the PTGR in circumstances where expired Schedule 8 medications and returned Dilaudid (Hydromorphone) injections were stored in a vaccine fridge in an unlocked room.
1. We are satisfied that, considered cumulatively, these matters establish that the practitioner is guilty of professional misconduct.
Protective orders
1. We turn now to the issue of protective orders. In summary, the Commission seeks cancellation of the practitioner's registration and that he not be permitted to reapply for registration for a period of one to three years. In our view, cancellation is appropriate because the practitioner's conduct involves several fundamental aspects of pharmacy practice (being maintaining the drug register, safe dispensing and appropriate storage), because the conduct occurred over a lengthy period and posed a potential risk of harm.
2. In summary, the Commission says that a one to three year non-review period is appropriate because that length of time is needed:
1. to allow the practitioner sufficient time to gain genuine insight into the seriousness of his conduct;
2. to censure the practitioner's conduct and send a strong message to him and other practitioners, that such conduct (particularly taking a "lax" approach to maintaining the drug register and ignoring red flags to continue to dispense medication while partly motivated by greed) cannot be condoned.
1. In summary, the practitioner submits that a reprimand is the appropriate protective order, along with conditions placed on his right to practise.
2. The practitioner's proposed conditions are set out in Attachment A.
Commission's submissions
1. The Commission submits that:
1. cancellation is appropriate to maintain the standards of the profession, preserve public confidence in the profession and, more broadly, protect the community;
2. cancellation is warranted to ensure that the practitioner, and others authorized to dispense dangerous Schedule 8 drugs, pay careful attention to potential red flags for drug dependance, particular where the practitioner's continued dispensing to Patient D, notwithstanding red flags, was partly motivated by greed;
3. cancellation is warranted to ensure that the practitioner, and other proprietor pharmacists, understand the critical importance of accurately maintaining the drug register and ensuring that Schedule 8 drugs are stored securely.
Practitioner's evidence on Stage 2
1. The practitioner relied on his statement of 6 May 2022, character references of Ms Jenny Wong and Dr Lorenzo Papandrea and his participation in continuing professional development.
Practitioner's statement of 6 May 2022
1. Relevantly, the practitioner states:
I am dedicated to improving the following areas of concern. It is these areas of concern that will form the basis of my CPD and improved practices and procedures at the Pharmacy:
– Improved notes/documentation;
– Improving interaction with other health professionals especially prescribers so as to identify issues of potential non-compliance with regulatory requirements at an early stage:
– Taking charge of what is the pharmacist's responsibilities and requirements in all areas of pharmacy practice;
– Stronger team and staff relationships when working together to ensure the Pharmacy remains fully compliant with the PTGR;
– Remaining vigilant for forged prescriptions and drug-seeking behaviour;
– Making informed and firm enquiries of prescribing doctors as to the therapeutic purpose of medications being prescribed to patients;
– Adherence and maintenance to all interval requirements; and
– Implementing improved processes of mandatory reporting.
I am motivated by the [Commission's] inquiry to come out as a significantly improved proprietor-pharmacist. The plans and actions referred to in this response are being approached with the utmost seriousness and commitment for the improvement of all of the ethical and professional oversights that have been identified.
I am sincerely disappointed and regretful that these issues occurred at all. However, I can assure the [Commission] and Tribunal that none of the issues raised by the PRU remain and that all available actions aimed at the rectification of these issues are being implemented. I am committed to the significant steps I have outlined above in order to improve the standard of my conduct, practice and understanding as well as that of my employees so that these issues are prevented from arising again in the future.
Character reference of Ms Jenny Wong
1. Ms Wong is a pharmacist who has known the practitioner since University in 1995. She has agreed to be the practitioner's "unofficial mentor" to help him transition back into pharmacy practice.
2. While working at the pharmacy she has seen that the pharmacy is fully compliant with all the legislation and requirements. She is aware that maintenance of the drug register and safe, and dispensing of Schedule 8 medicines are only done by the pharmacist in accordance with legislation. She says that the pharmacy is also no longer involved with the OTP.
3. Ms Wong is sure that moving forward the practitioner will pose no threat to the public or the authorities and will be much more vigilant in his compliance with legislation as this experience will have made him a much better pharmacist now and into the future.
4. Ms Wong says that since his suspension the practitioner has a higher awareness of the seriousness of compliance with relevant legislation and that "this experience" has made him a stronger person whom will not only adhere to protocols and procedures, but continue to better himself professionally to raise his standards further.
Character reference of Dr Lorenzo Papandrea
1. Dr Papandrea is a general practitioner who has known the practitioner professionally for 22 years. In summary, he states:
I have come to know [the practitioner] as a very hard working Pharmacist with a bright and affable personality. He has always been generous with his time when dealing with matters relating to my patients. In fact, many of my patients who have been looked after by [the practitioner], have always given me positive feedback regarding their association with him, including thorough advice with the taking of their medications and the overall personal service and attention given to them. On the many occasions I have popped into his pharmacy, I would invariably see [the practitioner] talking at the front counter with patients, as apposed [sic – opposed] to the often sighted scenario where the pharmacist on duty is hidden away behind high set counters.
Having read the allegations made against [the practitioner], I was taken aback by them, as I would never have expected [the practitioner] to find himself in this situation.
With due regard to the seriousness of the allegations, I still feel [the practitioner] has always had his patient's best interest at heart and his competency as a pharmacist has never been in doubt in my mind.
Continuing professional development
1. The practitioner is aware that in order to maintain registration, as of December 2015, pharmacists are required to have an annual CPD plan and complete a minimum of 40 units of CPD in a 12 month period ending 30 September each year. He says that he has already completed over the CPD requirements for 2022.
2. Usually, the practitioner completes CPD courses through his franchise/Sigma CPD program modules. However, he intends to complete other related programs that would assist him to maintain a high level of pharmacy practice.
3. In addition, he has:
1. since May 2021, taken further steps to address the issues raised by the PRU and has been repeatedly reading the dispensing process from the PSA and Guidelines for the Dispensing of Medicines from the Pharmacy Board of Australia and have made many notes as to what he needs to be implementing in the future that not only adheres to all regulations but to make sure ethics are at the forefront of his pharmacy practice.
2. he has organised laminations of dispensary flow, guidelines and requirement lists required to make sure all dispensing practices in the Pharmacy are compliant. He has found that continued knowledge and learning plays an important part in compliance and in the improvement of pharmacy practice.
1. His aim is to display and practice a much higher standard of knowledge, systems, structures and procedures related to the dispensing of Schedule 8 medications and the risks involved. Ultimately, he aims to develop and implement a CPD plan that continually targets specific areas of concerns. He says that the rationale behind such action is primarily to improve his competency levels and to continually assess and reassess himself so that such improvement can be facilitated.
2. In addition, he has updated and created membership with various professional bodies, and in addition to his continuing professional development continues to search for relevant educational materials on areas of interest, listed to podcasts relevant to the Amended Complaint and joined two WhatsApp groups allowing him "instant access" to peers and which he says is very useful for keeping up to date with legislative changes and current pharmacy practice issues.
Practitioner's submissions
1. The practitioner submits the Tribunal's jurisdiction is primarily protective and not punitive, and that in Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA with whom Macfarlan JA and Tobias AJA agreed, referred to and quoted from the reasons of Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523. At [20-21], Barrett JA explained that Basten JA "made several important points" being:
1. the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual;
2. that is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order;
3. the punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist;
4. the task of the Tribunal centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
1. The practitioner submits that in NSW Bar Association v Meakes [2006] NSWCA 340, Basten JA elaborated upon the protective purpose in the public interest and the direct and indirect aspects of protective orders. After considering a number of decided cases relevant to legal practitioners, Basten JA, said at [113] - [114]:
113 The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose.
114 That being said it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. …
(emphasis added by practitioner)
1. The practitioner submits, and the Tribunal accepts, that each of those paragraphs has been referenced in decisions concerning health professionals: Health Care Complaints Commission v Brittain [2019] NSWCATOD 161 at [114] (which references [113] of Meakes); Nusrat Deano v Health Care Complaints Commission [2012] NSWSC 693 at [55] (which references [114] of Meakes).
2. The practitioner submits, also correctly, that the observation that no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose has been applied in the context of disciplinary proceedings against health professionals: see Health Care Complaints Commission v Sloane; Health Care Complaints Commission v Hayles [2018] NSWCATOD 37 at [149]; and Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2 at [61].
Mitigation
1. The practitioner submits that there are a number of matters which mitigate his conduct. The practitioner repeats the matters set out above and in addition relies on the following matters:
1. the very sad and unexpected death of his wife in January 2022, and the events leading up to her death, leaving the practitioner as the sole breadwinner for his children aged 13 and 15. Due to the sensitivity of the matters we shall say nothing further other than we note the matters referred to on this issue in the practitioner's submissions;
2. the practitioner has now established a Pharmacist-In-Charge and locum pool to draw on to assist him when needed. Time away from work has also made him realise the importance of family time. He says that this should lend some comfort to Tribunal that he is better equipped to manage his pharmacy practice moving forward and would not present a risk to the public;
3. the practitioner has already been suspended from practice since 2 October 2019, over 2 years and 8 months ago. Whilst not a relevant issue if protection of public is still required by way of a further suspension, it is submitted relevant on whether there is any need for general deterrence. With a reduced income from the pharmacy the practitioner has been supplementing his income where he can with Uber type deliveries;
4. the improved practices and procedures he has implemented at the pharmacy during his suspension will continue to be implemented and improved upon.
Consideration
1. The Commission submits, and we accept, that the relevant principles in imposing protective orders include:
1. the protection of public safety and health is paramount: National Law, s 3A;
2. the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91];
3. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered: National Law, s 3(2)(a);
4. the Tribunal has a discretion to suspend or cancel a practitioner who is guilty of professional misconduct: National Law, s 149C(1);
5. whether the professional misconduct is sufficiently serious to warrant cancellation or suspension is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82];
6. this requires an assessment of the gravity of the professional misconduct found proved, and consideration of remorse and insight, if any, demonstrated by the practitioner: Health Care Complaints Commission v King [2013] NSWMT 9;
7. the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638;
8. the jurisdiction is primarily protective (Litchfield at 637) however it is unavoidable that protective orders may be incidentally punitive: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31];
9. deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession: Litchfield at 637;
10. protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession: Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
1. We accept that the practitioner:
1. has continued his CPD;
2. introduced new management practices in his pharmacies including the Pharmacist-In-Charge and locum rosters;
3. has had to deal with painful personal family circumstances.
1. We also accept that the practitioner has shown contrition and remorse.
2. But the totality of his misconduct was objectively serious misconduct.
3. As the Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106:
92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Prakash at [91].
93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91].
94. Nevertheless, although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83].
95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include:
• the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction;
• the unacceptability of certain kinds of conduct; and
• the maintenance of confidence in the high standards of the profession.
96. Whether the seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
1. Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration. Objectively, his misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. Any order short of deregistration would be an inadequate response to the seriousness of his misconduct.
2. We have come to that conclusion given the objective seriousness of the conduct, because of the necessity to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated, and to maintain public confidence in the profession.
3. We consider that the practitioner's registration should be cancelled, and that he should not be permitted to apply for re-registration for a period of 18 months from the date of these reasons.
Costs
1. This is a costs jurisdiction, costs jurisdiction, and ordinarily costs follow the event: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
2. We make the following directions as to costs:
1. the Commission is to file and serve submissions as to costs on or before 2 November 2022;
2. the practitioner may respond on or before 16 November 2022;
3. the Commission may reply on or before 23 November 2022;
1. The Tribunal proposes to deal with the question of costs "on the papers" and without a hearing. If either party opposes that course they should address that issue in their submissions.
Orders
1. The Tribunal orders:
1. The respondent is guilty of unsatisfactory professional misconduct under s 139B(1)(a) of the National Health Practitioner Regulation Law (NSW).
2. The respondent is guilty of professional misconduct under s 139E(b) of the National Health Practitioner Regulation Law (NSW).
3. The registration of the respondent is cancelled.
4. The respondent may not apply for a re-instatement order for a period of 18 months from the date of these orders.
5. The applicant is to file and serve submissions as to costs on or before 2 November 2022.
6. The respondent may respond on or before 16 November 2022.
7. The applicant may reply on or before 23 November 2022.
8. The Tribunal proposes to deal with the question of costs "on the papers" and without a hearing. If either party opposes that course they should address that issue in their submissions.
Attachment A
Conditions on registration proposed by the practitioner.
1. The practitioner be reprimanded.
2. Under s 163B(4) of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on the practitioner's registration for a period of 12 months or, at the expiry of that 12 months, for any such longer period as determined by the Pharmacy Council of NSW (the Council), unless otherwise specified:
Mentoring
1. The practitioner must nominate a registered experienced pharmacist who is unrelated to him to act as his professional mentor for approval by the Council.
2. The mentoring relationship is to continue for a minimum period of 12 months from the date of the Councils approval or appointment of the mentor, with the Council to determine if an additional period of mentoring is appropriate.
3. The practitioner is to authorise the mentor to report to the Council if there is any concern about his professional conduct or personal well-being.
4. The practitioner is to authorise the mentor to report to the Council about his professional conduct and personal well-being at the conclusion of the 12 month period of the mentor relationship.
5. The practitioner is to meet all costs associated with the mentoring conditions.
6. As soon as practicable after the mentor is appointed by the Council, the practitioner must provide the mentor with a copy of the decision made by the New South Wales Civil and Administrative Tribunal.
Supervision
1. The practitioner must work one shift per week with another pharmacist for a period of one month, from the date of this order or for any further specified period determined by the Council.
2. The practitioner must employ another pharmacist to work at the Pharmacy for at least two days per weeks for a period of six months, from the date of this order or for any further specified period determined by the Council.
Psychological Treatment
1. The practitioner must attend for treatment by a psychologist of his choice (the treating practitioner), at a frequency to be decided by the treating practitioner.
2. The practitioner must meet all costs associated with the treatment by the psychologist.
Courses
1. Within three months of the date of this decision, the practitioner is to commence the Ethics and Dispensing in Pharmacy Practice course offered by the Pharmaceutical Society of Australia (PSA), or an equivalent course approved by the Council and to provide to the Council evidence of having successfully completed that course, in the period decided by the Council.
OTP Program
1. The practitioner is prohibited from participating in the OTP program
Performance Assessment
1. The Practitioner is required to undergo a performance assessment within 2 months from the date of the Tribunal's orders and at the frequency determined by the Council.
Audits
1. The Practitioner is to submit to audits of his practice as a pharmacist and pharmacy proprietor by a person or persons approved by the Council.
2. The Practitioner is to provide to the auditor(s) approved by Council with a copy of the Tribunal's decision.
3. The audits are to be conducted every three months and are to continue for a period of 18 months and thereafter at a frequency and term determined by the Council.
4. The first audit is to be held within 3 months of the Tribunal's orders.
5. The auditor(s) should include a review of all aspects of the practitioner's practice and his pharmacy business including review of:
1. the drug register;
2. storage, supply, recording and destruction of drugs of addiction;
3. the process and procedures relating to the dispensing of regulated substances in the pharmacy businesses;
4. the Practitioner and his pharmacy businesses' compliance with the Poisons and Therapeutic Goods Act (1966) and Poisons and Therapeutic Goods Regulation (2008).
1. The practitioner is to authorise the auditor(s) to provide the Council with a report on their findings.
2. The practitioner is to meet all costs associated with the audit(s) conditions.
**********
Endnote
1. Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; [1930] AC 1; (1938) 12 ALJ 100; (1938) 12 ALJR 100; [1938] ALR 334
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: 19 October 2022
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