Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wannell [2022] NSWCATOD 166 Hearing dates: 7 – 9 November 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Occupational Division Before: The Hon D A Cowdroy AO KC, Principal Member A Aylott, Senior Member D North OAM, Senior Member Dr R Leontini, General Member Decision: The Tribunal orders that: (1) The name and address of the witnesses listed in the Schedule to the attached Complaint is not to be disclosed pursuant to clause 7 Schedule 5D of the Health Practitioner Regulation National Law (NSW) ('National Law'). (2) The respondent practise for a period of 12 months from the date of these orders subject to the following conditions: (a) Always practise as a pharmacist under the supervision of another pharmacist, as approved by the Pharmacy Council of New South Wales. (b) Complete within 12 months from the date of these orders not less than 152 hours of supervised practice in accordance with the Pharmacy Board of Australia's (the Board's) Registration standard : Supervised practice arrangements (c) Successfully complete within 12 months of the date of these orders an oral examination (Pharmacy law and ethics) in accordance with the Board's Registration standard: Examinations for eligibility for general registration (d) Not to possess, supply, manufacture or dispense any "drug of addiction" including derivatives or compounded medication (Schedule 8 on the NSW Poisons List (as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW) or any substance in an equivalent list in any other Australian State or Territory. (e) Not to possess, supply, manufacture or dispense any substance listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW) or any substance in an equivalent list in any other Australian State or Territory. (f) To advise the Pharmacy Council of NSW of any change of employment within seven days of commencing employment. (3) The respondent be referred for assessment within the Health Program of the Pharmacy Council of NSW. (4) The respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law, and of the reserved costs in respect of the application before the Tribunal. Catchwords: Health – pharmacist failing to notify the Pharmaceutical Regulatory unit of loss or discrepancies in recordkeeping for drugs of addiction - dispensing for family member – such member already in an opioid treatment program – respondent removing patient prescriptions and labels to her home without knowledge of employer –- failing to maintain accurate and legible records of drug checks - failing to notify as required by regulations of discrepancies in stocks of dangerous drugs-whether records of the respondent were misleading-prescription errors-whether pharmacist suffers from an impairment – measures for rehabilitation. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 BronzeWing International Pty Ltd v SafeWork. SafeWork NSW [2017] NSWCA 41 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Mazzaferro [2011) NSWMT 9 Health Care Complaints Commission v Philipia [2013] NSWCA 342 Latoudis v Casey (1990) 170 CLR 534 NSW Medical Board v Dinaker (2009) NSWMT 8 Ohn v Walton (1995) 36 NSWLR 77 Qasim v HCCC [2015] NSW CA 282 Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981) Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Shilo Wannell (Respondent) Representation: Counsel: E Bailey (Applicant) N Roucek (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2022/00067976 Publication restriction: The disclosure of the name/s of the persons listed in the Schedule to the Complaint is prohibited pursuant to section 64 of the Civil and Administrative Tribunal Act 2013. REASONS FOR DECISION 1. By Amended Application for disciplinary findings and orders filed on 22 July 2022 the applicant seeks the following orders: 1. A direction that the name and address of the witnesses listed in the Schedule to the Complaint not to be disclosed under clause 7 Schedule 5D of the Health Practitioner Regulation National Law (NSW) ('National Law'). An order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Cancellation of the respondent's registration, pursuant to s 149C(1)(b) of the National Law with a non-review period of 1 year. 3. An order that the respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law. 1. The grounds for the application are stated to be as follows: The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the respondent pursuant to section 139B(1)(a), and/or (I) and/or professional misconduct within the meaning of section 139E and/or has an impairment under section 144(d) of the National Law. The Amended Complaint 1. The Amended Complaint filed on 2 November 2022 contains three separate complaints against the respondent, but the second complaint was withdrawn at the commencement of the hearing. 2. The respondent has been a registered pharmacist since 15 November 2007, and she completed a Master of Pharmacy at the University of Newcastle in 2005. Thereafter, she was engaged as a pharmacist at a pharmacy located in a regional area of NSW ("the pharmacy") between 20 October 2014 to 16 April 2019. On 14 March 2015, the practitioner suffered an ischaemic stroke but on 17 June 2015, she returned to the pharmacy on a graduated return to work plan. The respondent remains in practice as a pharmacist, subject to conditions referred to hereunder. 3. The Complaint raises numerous alleged failures by the respondent in her professional practice, including failures to undertake stock checks; failing to obtain written transfer of drug requests between pharmacies; failing to record loss or spillages; dispensing to a close relative (Person A) when it was known that such person was the subject of a opioid treatment program; removing prescriptions and labels from the pharmacy without approval and storing them at her home; failing to notify the Pharmaceutical Regulatory Unit as required under the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) of shortfalls in drug counts. 4. In respect of the alleged failure to notify as required by the PTGR, the respondent states that she followed her employer's requirements by notifying the Head Office of her employer and understood that Head Office would make the required notification. Her employer could find no record of any such notification. The respondent admits that she did not notify as required of her by the relevant Regulation. Relevant Regulatory Provisions 1. Regulation 91 of the PTGR requires records to be kept by pharmacists of methadone or buprenorphine prescriptions. Regulation 111 requires that a drug register is to be kept; Regulation 113 requires that the supply on prescription is to be recorded; Regulation 118 requires periodical inventory of stock of drugs of addiction; Regulation 124 requires notification, as discussed below of any loss; Regulation 176 requires records to be maintained; and Regulation 177 relates to misleading entries in records and registers. 2. Regulation124 states: Loss or Theft of Drugs of Addiction A person is authorised to be in possession of drugs of addiction must immediately notify the Director-General if the person loses a drug of addiction or if a drug of addiction is stolen from the person. Maximum penalty: 20 penalty units. Complaint One 1. This complaint alleges that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or engaged in improper or unethical conduct in relation to such practice. 2. The practitioner has filed a Reply to the Amended Complaint dated 15 September 2022 admitting to the allegation of unsatisfactory professional conduct; however, the practitioner does not admit all of the particulars referred to above. Further, the respondent denies that she is guilty of professional misconduct. 3. In determining whether the particulars of the Complaint are proved, the Tribunal must be satisfied to a high degree that the evidence establishes that the person is so afflicted. It has been accepted that the appropriate test is that contained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also the observations of the Court of Appeal of New South Wales in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41. Applicants witnesses Jayne Cannon 1. Ms Cannon, a registered pharmacist since 1993 was engaged by the management of the company which employed the respondent (the "Company"). Such Company operated or franchised numerous pharmacies, including the pharmacy at which the respondent was engaged. She stated that the respondent reported to the store area manager for the Company and to the group Dispensary Manager, Ms Robyn Young and Kristy Marquart. 2. Ms Cannon states that at no time did she recall receiving written or verbal communication from the respondent concerning anomalies in the Schedule 8 register at such pharmacy when they occurred. She also stated that the policy required all incidents in the store involving the Schedule 8 register (or referred to colloquially as the Dangerous Drugs (DD) register and Schedule 4D discrepancies to be reported to the area manager and Head Office immediately and must be reported to the NSW Ministry of Health. 3. Ms Cannon stated that she is confident that if the policies and procedures had been followed, she would have been notified of any discrepancy at the pharmacy and would have had knowledge of discrepancies or irregularities in the drug registers at the time of the occurrence. 4. Ms Cannon states that in late 2018 discrepancies in the Schedule 8 register were identified in an audit conducted at the pharmacy. On 19 December 2018, she met with the respondent, her husband, and Michael Newman, Human Resources Manager of the Company to discuss the audit. A further meeting took place on 30 January 2019 following a police raid at the respondent's house where prescription medication and dispensary labels containing private and confidential information pertaining to staff who worked at another pharmacy of the Company were found. 5. Ms Cannon states that she has no record of a written transfer request being made by another pharmacy in the group to the pharmacy for 20 x Codeine x 30mg tablets on 6 October 2017. She states that all Schedule 8 medications received or leaving the pharmacy are required to be recorded in the DD register. Michael Newman 1. Michael Newman was Human Resources Manager for the Company between 27 August 2012 to 25 February 2022. Mr Newman states that on 7 December 2018 a meeting was held with the respondent relating to reports that she had taken medications from the Returned Unused Medicine container ("RUM bin") and allowed Person A into the dispensary area of the pharmacy. As a result, Person A was banned from entering the pharmacy. 2. Following an investigation and an audit, a further meeting took place on 19 December 2018 after an investigation and an audit was carried out on 7 December 2018. The audit found that the main reason for the discrepancies was poor bookkeeping and administration in the Schedule 8 register. 3. On 11 January 2019, the media reported a drug raid at the respondent's home as result of which the respondent's husband was arrested. On 11 January 2019, the respondent acknowledged that her house had been raided by police and that Person A was before the court. A further meeting took place on 30 January 2019 with the respondent concerning investigation into confidentiality and procedural breaches. Mr Newman's statement attaches summaries of the meetings held with the respondent. Kristy-Lee Marquart 1. Ms Marquart was working as the Ethical Pricing Manager at the Company in January 2019 and in February 2019, she commenced working as a Group Dispensary Manager. She was employed by the Company for 22 years. 2. Ms Marquart is not a pharmacist but had access to the Company dispensary system and the internal intranet. She attended a meeting on 30 January 2019 with Mr Newman, Ms Cannon, the respondent, and her mother. A list of discrepancies was prepared and discussed at that meeting. 3. Ms Marquart states that: 1. she could find no record of the respondent ever contacting head office to report any Schedule 8 discrepancies. 2. that to her knowledge it has always been and continued to be, the policy of the Company that all discrepancies on the Schedule 8 register were to be reported immediately to the Pharmaceutical Regulatory Unit ("PRU") of the Health Department and Pharmaceutical Defence Limited ("PDL"), by the pharmacist in charge of the pharmacy. 1. Attached to Ms Marquart's statement are extracts from emails which she has sent internally. One record reads relevantly: There are no records of Shilo ever contacting head office staff to report any DD discrepancies. All head office staff were asked if they had ever received any calls from Shilo reporting missing DDs, we all also went through emails received from Shilo and could not find any evidence of Shilo reporting missing DDs. 1. Another internal email from Ms Marquart dated 1 May 2020 confirms that there was no communication from the respondent and further contains a statement: Shilo has never claimed she had previously alerted any staff of the missing DD's. It has always been and continues to be the policy of all [the Company's pharmacies] that all DD discrepancy's (sic) should be reported Immediately to the Health Department and PDL. We do ask that head office is notified of all reports made to the Health Department and PDL, so proprietors are aware. Please see exerts (sic) form (sic) our Dispensary Procedure Manual below: 1. Such excerpts state: Page 15: Any discrepancies must be found and rectified on the same day. If errors can't be found and fixed, they must be reported to the Health Department and PDL, even if it's just 1 tablet. It is our policy that all pharmacists in charge do a full stock check and balance of all S8 medications including Opioids once a month. Page 16 All incidents MUST be reported to PDL on 1300 854 838 with the PDL Insurance Number immediately, by the Pharmacist involved or the Pharmacist in Charge /On Duty. Incidents include any event which adversely affects the health or well-being of a customer and incidents must be reported to PDL even if they have been resolved. This is the only way to protect the Pharmacist involved and the business against potential further legal action. All Pharmacists should know and have their PDL website access details on hand at all times including login and password. You must advise the Group Dispensary Manager when a report has been logged with PDL and forward a copy of the report to head office. 1. Ms Marquart informed the Tribunal that the Group Dispensary Manager was Robyn Young. She was the dispensary manager when the incident occurred, and they worked together. She states that Robyn informed her that had a report been made by the respondent, that she (Robyn) would have told the respondent to report it to the PDL and to the Health Department. 2. Ms Robyn Young was not called as a witness. Expert Evidence 1. An expert report has been provided by Jack Leigh dated 20 August 2020. This was supplemented by a report dated 16 September 2020 and a further one-page report in reply to a statement of the respondent dated 14 January 2021. Mr Leigh provided oral evidence which resulted in some minor alterations to his opinion. In respect of his findings, he revised his conclusions as to whether the conduct of the practitioner fell below or significantly below the expected standard. 2. In summary, the report concludes that in virtually all of the particulars alleged, the conduct of the practitioner fell below, or in other cases significantly below, the standard reasonably expected of a practitioner of similar training or experience. 3. A Report of Investigation dated 14 March 2019 by Senior Pharmaceutical Officer Ritika Tiku and Principal Pharmaceutical Officer Kim Dolan has been provided. The report concluded that the practitioner has breached the PTGR. 4. The Tribunal will set out each Complaint here under and the respondent's reply, and the Tribunal's finding seriatim. Particulars of Complaint One 1. The practitioner breached cl 124 of the Poisons and Therapeutic Goods Regulation 2008 (PTGR) by failing to report to the Pharmaceutical Regulatory Unit NSW Ministry of Health (the PRU) the following losses of drugs of addiction noted on the drug register at the pharmacy: a. 332mL of methadone on 2 November 2014 Respondent's Reply 1. The respondent admits that she should have immediately notified the PRU of all losses as per cl 124 of the PTGR, and that she failed to so notify. She states that she notified Head Office in accordance with the Company's Dispensary Manual Procedure and verbal instructions. She assumed that Head Office would then notify the PRU. It was her understanding that the policy of the Head Office was to the effect: "the time spent filling out paperwork or on the phone could be better spent finding the error", "customers come first" and "we'll sort it out and keep it in-house". 1. The respondent states that this loss occurred on a Sunday and that she telephoned the head office first thing on Monday morning and was told that the discrepancy would be added to a current investigation of other losses. Expert Finding 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. The Tribunal finds that the respondent's conduct has breached Cl 124 of the PTGR and finds that the respondent's reasoning for this breach is unacceptable. The respondent's practice of pharmacy in this instance is significantly below the standard expected of a pharmacist of equivalent training and experience b. 5mL of methadone on 18 September 2015 Respondent's reply: 1. The respondent states that she entered the reason for the loss as a "spilled amount" and recorded the estimated amounted of spillage as "5mL". The respondent did not enter the name of the pharmacist who actually made the spillage to avoid possible repercussions but asserts that she notified Head Office. Expert Finding 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. The Tribunal repeats its finding for particular 1a. c. 278L of methadone on 28 July 2015 Respondent's reply 1. The respondent states that she did not conduct an inventory check in the Drug Register for Methadone on 27 July 2015: the entry in the register for that day is the daily total Monday "out" of 229 ml and not an inventory check as referred to the expert reviewers report. She states she did perform an inventory check on 28 July 2015 and recorded a "balance of 32 ml" in the register namely the shortage of 278 ml. She states that she telephoned Head Office on that day to notify them of the possible loss and that she had found irregularities in the Drug Register for methadone. She states that whilst she was on medical leave a pharmacist left a blank line in the register and that pharmacist entered the balance as negative: such entry was repeated by successive pharmacists. The respondent said that she found an unentered invoice for 24 March 2015 but that did not make the "balance" correct nor did it explain the blank line. The respondent states that she informed head office that would take some time to work out and that she was instructed to photocopy and provide to the group dispensary manager for investigation. The respondent says she was on annual leave during the period between the inventory checks (7 November 2014 and 28 July 2015) and on annual leave (24 November 2014 to 7 December 2014) and medical leave (14 March 2015 to 16 June 2015) Expert Finding 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. The Tribunal repeats its finding for particular 1a. d. 20 x Mayne Oxycodone IR 5mg tablets on 30 March 2017 Respondent's reply 1. The respondent states that during a stock check on 30 March 2017 she found a discrepancy with respect to these tablets. She found no error after checking the scripts that month and accordingly adjusted the "balance" to reflect the stock on hand and notified head office of a possible loss. Head Office denied any loss. She acknowledges that she did not notify the PRU but believed that she had acted appropriately by acting in accordance with the Company's Dispensary Manual which provides: "Any discrepancies must be found and rectified on the same day. If errors can't [sic] be found and fixed they must be reported to the Health Department and PDL even if it's just 1 tablet". 1. The respondent states that she attempted to locate the error before 7 PM closing time but as she was the sole pharmacist on duty, she did not have the time to check over 4 months of entries. Expert Finding 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. The Tribunal repeats its finding for particular 1a. e. 28x Targin 10/5g tablets on 30 March 2017 Respondent's reply 1. The respondent disputed there was any loss to be reported to the PRU and the wording in the drug register was incorrect. Both the respondent and another pharmacist dispensed the same script and there was no need to make a stock adjustment. The respondent denies creating a misleading note. Expert Finding 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. The wording in the Drug Register would require reporting to the PRU. The recording of incorrect entries into the drug register is below the standard expected of a pharmacist of equivalent training and experience. f. 16 x OxyContin MR 30mg tablets on 24 June 2017. 1. Respondent's reply: the respondent states that in respect of the allegation that on 24 June 2017 she reduced the balance of OxyContin MR 30 mg tablets by 16 tablets, that during a stock-take on that date she found a discrepancy with such tablets: as she could not ascertain the reason. She adjusted the "balance" to reflect the stock on hand with a note: "cannot find 16 tablets". She notified Head Office in accordance with the above company's practice. Expert Finding 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. This particular is admitted by the respondent. The Tribunal finds that such conduct breached Cl 124 of the PTGR. The respondent's reasoning for this breach is unacceptable. The respondent's practice of pharmacy in this instance is significantly below the standard expected of a pharmacist of equivalent training and experience. Tribunal Finding in relation to Particular 1 1. The PTGR was breached, and the conduct admitted by the respondent. The Tribunal finds that the respondent cannot abrogate this responsibility and is extremely critical that the respondent did not exercise her independent judgement. Relying on reporting to Head Office is not acceptable. Even if it be correct that the respondent contacted Robyn Young and was informed that she would contact the PRU, such does not relieve the respondent of notifying the PRU. There is no email trail evidencing such alleged contact. Two emails sent by the respondent to Head Office relate only to reporting of adjustments. 2. On 6 October 2017, the practitioner removed 20 codeine 30 mg tablets in the pharmacy for transfer to another pharmacy in circumstances where: a. The practitioner had not obtained a written transfer request from the borrowing pharmacy, in breach of cl 134 (1) (a) of the PTGR. Respondent's Reply 1. The Practitioner states that she obtained a transfer request from the other pharmacy, initially by telephone, and subsequently paperwork was sent. The written request was filed in a folder with dispensary invoices at the pharmacy. The respondent stated that the request was made in 2017 for transfer of the drugs. The respondent states that under no circumstances would she make a stock transfer without receiving written paperwork signed by the requesting pharmacist. Accordingly, she disputes that there was no transfer provided. She states that had a check been made at the other pharmacy which requested the tablets, the PRU could have established the transfer receipt. The respondent also states that HCCC complaint about cl 134 did not arise until after the mandatory two-year period for keeping such records had expired Expert Finding 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. The Tribunal observes as follows: (a) PTGR 2008 provides: 134 Pharmacists authorised to supply by wholesale in certain circumstances A pharmacist is authorised to supply a substance by wholesale to another pharmacist if: (a) the pharmacist is requested to do so in writing signed by the other pharmacist, and… 1. The Tribunal is not satisfied to the requisite degree that a transfer in writing was not made. The PRU Report does not indicate that a search had been made for a written record; only that there was no record of a transfer on 6 October 2017. The Daily Activity Report from another group pharmacy records that the transfer was performed on 7 November, when a pharmacist was doing a stock check and obviously found a discrepancy and searched for the reason. The Tribunal notes that the expert contradicted himself. In his supplementary statement dated 12 February 2021 he states: "Concerning the 20-codeine phosphate lent to another pharmacy. I did not assume that there was no written order only that it could not be produced as required." 1. Further, Ms Marquart's email dated 5 March 2019 does not state that a search was made for a written record and that it could not be located: rather, only that a transfer was looked for and could not be found. The Tribunal accordingly finds this particular is not established. b. the practitioner knew or ought to have known that pharmacist must ensure responsible and accountable control and supply of therapeutic goods (Code of Ethics for Pharmacists 1 February 2017 p.13). Respondent reply 1. refer to particular 2a. Experts finding 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. The Tribunal repeats its finding for particular 2Fa. 3. The practitioner breached cl 176 of the PTGR by failing to keep for two years at the pharmacy a record of a written transfer request in relation to transfer of a Schedule 8 prescribed restricted substance, namely Codeine as referred to in particular 2 above. Respondent's Reply 1. The Practitioner claims that she obtained a transfer request. Further, the applicant's complaint under cl 134 did not arise until after the mandatory two-year period for keeping such records had expired. Expert's Findings 1. The respondent's conduct is significantly below the expected standard. Tribunal's Finding 1. The Tribunal finds that particular 3 is not established. The Tribunal cannot be certain, in view of the fact that the two-year period had established before the charges were made, that a transfer was not kept for the required period. 4. The practitioner breached cl 118 of the PTGR by failing to conduct compulsory inventory checks at the pharmacy for a drug of addiction namely Methadone in the following months: a. March 2016 b. September 2016 c. September 2017 Respondent's Reply 1. The respondent admits to particular 4a and 4b of Complaint One. She accepts that she did not conduct the checks for each month referred to. The respondent states in mitigation that she was not the only pharmacist with this responsibility. The respondent denies particular 4c and says that there was no obligation upon her to perform a check in September 2017 because she had requested management to have another pharmacist undertake the methadone inventory check and, that management had agreed. However, the pharmacist on duty on the days in which the respondent did not work would be responsible for carrying out all methadone checks from January 2017. The respondent states she made such request because she was concerned that her right-sided weakness would cause spillage, and that such disability affected the frequency of inventory checks. The respondent acknowledges that following a stroke she had no recollection of the requirement to perform compulsory inventory checks in March and September 2017 and that such failure resulted from a cognitive issue and not related to "lack of fine motor dexterity" nor to her "level of training and experience" as stated in the review of the Expert Reviewer. Expert's Findings 1. Significantly below the expected standard. Tribunal's Finding 1. The Tribunal is satisfied that the respondent's conduct breached Cl 118 of the PTGR and finds that the respondent's reasoning for this breach unacceptable. The respondent was the (principal) pharmacist in charge and this responsibility fell upon her. Regarding the September 2017 stock check, it was her responsibility as pharmacist in charge to ensure such a request was carried out or performed. It is the duty of a pharmacist in charge to ensure that a stock check is carried out or do it themselves. The respondent's practice of pharmacy in these instances is significantly below the standard expected of a pharmacist of equivalent training and experience 5. On 23 February 2017 the practitioner reduced the stock of Endone 5 mg tablets on the electronic drug register at the pharmacy by 60 tablets and failed to record an explanation for the reduction. Respondent's Reply 1. The respondent admits to particular 5 of Complaint One. The respondent acknowledges that she failed to record an explanation in the Drug Register, namely that the reduction was made to correct an earlier error by a colleague. She states that the loss was detected on 23 February 2017 and resolved on the same day. She states that she checked the MINFOS Drug Dispensed Report against the Daily Activity Report and found a discrepancy for entry made by another pharmacist 8 February 2017. The respondent adjusted the "balance" to reflect the stock on hand and recorded an explanation note stating "DD check." She accepts that she should have provided additional information to explain the adjustment error and that it should be an "20 entered should be 80 RA error". She could not explain the reason for the omission. She states that she ran out of time to reverse her earlier stock adjustment and make the appropriate entry. Expert Findings 1. Initially the expert found that the respondent's conduct fell significantly below the expected standard, however, in his oral evidence amended to below the requisite standard. Tribunal's Findings 1. The reduction of stock, Endone on 23 February 2017, in a drug register without an appropriate explanation is not acceptable practice. The respondent's explanations for allowing this to occur as being time poor, being interrupted, and various other reasons are also experienced by many other pharmacists, and this does not abrogate her responsibility to document an appropriate reason for alterations to a drug register. Mr Jack Leigh (the expert) in oral testimony reconsidered the deviation from the accepted standard from significantly below, to below the expected standard. However, the Tribunal does not agree with the expert that such conduct is merely below the standard. The requirement to record an appropriate reason guarantees transparency to other pharmacists (the profession) and the public. Adjustments without an appropriate reason is unacceptable and significantly below the standard expected of a pharmacist of equivalent training and experience. 6. On 23 February 2017 the practitioner reduced the stock of MS Contin 200 mg tablets on the electronic drug register at the pharmacy by 56 tablets and failed to record an explanation for the reduction. Respondent's Reply 1. The respondent admits to particular 6 of Complaint One. The respondent accepts that her note did not record the reason for removal of the 56 tablets and accepts that her note should have stated "DD Check – out of date" and that writing simply "DD check" was an inappropriate entry. The respondent also states the drugs were kept in store for a regular customer who passed away and she was aware of her commitment that they were not to be dispensed. Expert Findings 1. The respondent's conduct was significantly below the expected standard. Tribunal's Findings 1. The Tribunal is satisfied that such conduct represents poor performance of the respondent's practice of pharmacy and that such performance fell significantly below the standard expected of a pharmacist of equivalent training and experience. Adjustments without appropriate reasons is unacceptable to the profession and to the public. 7 Between 5 February 2017 and 25 November 2018 at the pharmacy the practitioner dispensed 50 Antenex 5 mg tablets to person A, a close relative on 15 occasions, in circumstances where: a. The practitioner knew person A was a participant in an opioid treatment program. Respondent's Reply 1. The respondent admits to particular 7 of Complaint One. This complaint records that the respondent dispensed inappropriately to person A when she knew the person was a participant in the opioid treatment program; that there was a conflict of interest in the respondent acting as person A's dispensing pharmacist; that she knew or ought to have known there was a real risk her professional judgement would be impaired when providing dispensing services to Person A because of their close relationship; and that she knew or ought to have known that good practice required that personal relationships do not in any way impair clinical judgement as stipulated in the Pharmacy Board of Australia Code of Conduct 2014, Part 3.14. Code of Conduct.3.14 Good practise includes recognising the potential conflicts, risks, and complexities of providing care to those in a close relationship, for example close friends, work colleagues, and family members and that this can be inappropriate because of the lack of objectivity, possible discontinuity of care and risk to practitioner or patient. When a practitioner chooses to provide care to those in a close relationship, good practise requires that * adequate records are kept * Confidentiality is maintained * Adequate assessment occurs and appropriate consent is obtained to the circumstances which is acknowledged by both the practitioner and the patient for client * The personal relationship does not in any way impair clinical judgement, and * At all times, an option to discontinue care is maintained (see section 8.2 professional boundaries). Expert Finding 1. The respondent's conduct was significantly below the expected standard. Tribunal's Finding 1. The Tribunal finds that the respondent's conduct falls significantly below the Pharmacy Board of Australia Code of Conduct. b. There was a conflict of interest in the practitioner acting as Person A's dispensing pharmacist Respondents reply 1. The respondent admits the conduct. Expert Finding 1. The respondent's conduct was significantly below the expected standard. Tribunal finding 1. The Tribunal agrees that there was a conflict of interest with the respondent dispensing prescriptions for Antenex to person A. This behaviour fell significantly below that the standard expected of a pharmacist of equivalent training and experience. c. The practitioner knew or ought to have known was a real risk her professional judgement would be impaired when providing dispensing services to person A because of their close relationship. Respondent's Reply 1. The respondent admits the conduct. Expert Finding 1. The conduct was significantly below the expected standard. Tribunal's Finding 1. The respondent must have known when dispensing prescriptions 11 or 15 days apart that her clinical objectivity was compromised. In doing so, her conduct as a pharmacist fell significantly below the standard expected of a pharmacist of equivalent training and experience. d. The practitioner knew or ought to have known that good practice requires that personal relationships do not impair clinical judgement (Pharmacy Board of Australia Code of Conduct 2014, Part 3. 14). Respondent's Reply 1. The respondent admits the conduct. Expert Finding 1. The conduct was significantly below the expected standard. Tribunal's Finding 1. The respondent's deviation from this part of the Code of Conduct particularly in allowing a personal relationship to impair her clinical judgement fell significantly below the standard expected of a pharmacist of equivalent training and experience. 8. The practitioner failed to make notifications to the PRU in relation to two irregularities in the drug register at the pharmacy, namely: a. On 31 March 2016 a notation that 14 mL of methadone had been spilt. Respondent's Reply 1. The respondent admits to particular 8 of Complaint One. Expert Finding 1. Below and significantly below the expected standard. Tribunal's Finding 1. Pharmacists participating in the NSW Opioid Treatment Program have an obligation to report to the PRU any losses of methadone syrup. Methadone is a Class B Schedule 8 drug with additional considerations by a pharmacist over other Class C Schedule 8 drugs when handling. Any losses are required to be reported to the PRUs required in cl 124. Accordingly, the failure to report constitutes conduct which is significantly below the expected standard. b. On 16 July 2016 a notation that 5 mL of methadone had been spilt. Respondents Reply 1. The respondent admits to the conduct. The respondent stated on 31 March 2016, that she entered the reason for the loss as a "spilt dose" and recorded the amount of the spillage as "14 ml". She acknowledges that the PRU was not notified immediately of this fact but stated she relied upon the Company's Dispensary Manual and informed head office. She was told by her employer "not to worry," "accidents happen" "just make sure you record it in the register." 2. On 16 July 2016, the respondent entered the reason for loss as an "accidental spill" and recorded the amount of the spillage as 5 ml. The PRU was not notified immediately because she understood head office would report the spill, since she notified them by telephone on the same day. Expert Finding 1. Below and significantly below the expected standard. Tribunal's Finding 1. In not reporting this loss to the PRU, the respondent's conduct fell significantly below the standard expected of a pharmacist of equivalent training and experience. 9. Between 5 November 2017 and 6 February 2018 the practitioner made entries in the Drug Register of the pharmacy which were illegible. Respondent's Reply 1. The respondent admits to particular 9 of Complaint One. Expert Finding 1. Below the expected standard. Tribunal's Finding 1. The respondent admitted her handwriting was difficult to read, particularly when she was rushed. It is important that entries in the drug register are legible to allow other pharmacists to decide if there is a pattern of misuse of high-risk Schedule 8 medicines by a patient or a prescriber. Illegible entries deprive other pharmacists, pharmacy council inspectors, PRU inspectors, or the police using the drug register in the course of their duty from accessing vital information. 2. The Code of Conduct 8.4 states Health records. Maintaining clear and accurate health records is essential for the continuing good care of patience or clients. Practitioners should be aware that some national boards have specific guidelines in relation to records. Good practise involves: keeping accurate, up-to-date, factual, objective, and legible records that report relevant details of clinical history by, clinical findings, investigations, information given to patients or clients, medications and other management information that can be understood by other health practitioners d. Ensuring that records are sufficient to facilitate continuity of care 1. The respondent was not cognizant of this requirement of the Code of Conduct. The action of entering illegible handwriting into the drug register fell below that standard expected of a pharmacist of equivalent training and experience. 10. On 23 February 2017 the practitioner removed a stock of Oxynorm 10 mg. capsules on the electronic drug register at the pharmacy by 20 capsules and failed to record an explanation for the reduction. Respondent's Reply 1. The respondent admits to particular 10 of Complaint One. She states that during a stock check on 23 February 2017 she found the discrepancy with the Oxynorm 10 mg capsules balance. She states she cross checked the MINFOS Drug Dispensed Report against the Daily Activity Report and found three discrepancies and that had time permitted, would made three entries. Instead, she adjusted the "balance" to ensure the accuracy of the stock on hand with a note stating, "DD check." She acknowledges that the notation did not explain the reason for the adjustment. She denies that she ever physically removed drugs from the safe. Expert Finding 1. Below the expected standard. Tribunal's Finding 1. The respondent admitted she had failed to record an explanation for the reduction of Oxynorm 10mg capsules on the electronic drug register. It is of concern that if it had not been for cross-checking on 1 October 2019, when she found potential errors to explain errors of 29 November 2016, 6 December 2016, and 4 January 2017, the discrepancy would not have been accounted for. In failing to record an explanation for the reduction in Oxynorm 10mg on 23 February 2017 at the pharmacy, the respondent demonstrated a behaviour that fell below the standard expected of a pharmacist of equivalent training and experience. 11. On the following occasions, the practitioner made entries on the electronic drug register which were incorrect, incomplete, or misleading: a. On 15 April 2017, the practitioner made an incomplete entry in the drug register in relation to 112 OxyContin 40 mg. tablets, by failing to note that to erroneously duplicate entries were made for those tablets on 3 April 2017. Respondent's Reply 1. The respondent admits that she made incomplete entries; however, she denies there were two erroneously duplicate entries on 3 April 2017. The respondent noted that it is incorrect to state that she made an incomplete entry on 15 April 2017 in the drug register relating to 112 OxyContin tablets by failing to note two erroneously duplicated entries had been made for those tablets 3 April 2017: there is only one erroneous entry. The respondent explains that on 3 April 2017. The Drug Register shows two entries for 112 OxyContin tablets of the same invoice number. On 15 April 2017, she reversed one of the two numbers as the pharmacy only received 112 of such tablets on 3 April 2017 as recorded in the invoice. When she made the notation "entered in twice" she was viewing the details on the reversal screen in the DD book. She acknowledges she should have made a more comprehensive entry. The DD book automatically enters the ID number of the reversed entry as per her notation so that when the Daily Activity Report is viewed, it reads as if her entry had been made twice. Expert Finding 1. Below the expected standard. Tribunal's Finding 1. The respondent admits she made an incomplete entry on the electronic drug register but testified it was not intentional. Clause 8.4 of the Code of Conduct 8.4 states: Health records. Maintaining clear and accurate health records is essential for the continuing good care of patience or clients. Practitioners should be aware that some national boards have specific guidelines in relation to records. Good practise involves: a. keeping accurate, up-to-date, factual, objective, and legible records that report relevant details of clinical history by, clinical findings, investigations, information given to patients or clients, medications and other management information that can be understood by other health practitioners 1. The respondent's conduct in this matter falls below the expected standard of a pharmacist of equivalent training and experience. b. On 25 November 2017, the practitioner made a misleading entry in the drug register for the pharmacy in relation to Targin 15/7.5 mg tablets, by reducing the balance by 4 tablets, and acquitting the adjustment with the notation "STOCK ADJ dd check-out-of-date" in circumstances where the practitioner was aware the adjustment is made due to an erroneous entry she made in the drug register on 16 November 2017 when she entered 116 tablets of Targin in the drug register instead of 112. Respondent's Reply 1. The respondent admits that the entry was misleading, but denies that it was intentionally done so. The respondent states that the misleading entry resulted from the fact that she reduced the balance by four tablets noting "STOCK ADJ DD check – out-of-date" in circumstances where she was aware the adjustment was made due to an erroneous entry which she had made in the drug register on 16 November 2017 when she entered 116 tablets in the drug register instead of 112. She states it was never her intention to be misleading. Expert Finding 1. Below the expected standard Tribunal's Finding 1. The respondent admits her conduct on 25 November 2017 was misleading and the Tribunal is concerned at the pattern of poor management of the drug register. It would appear the respondent, in panic episodes, seeks to balance the drug register in unorthodox ways. The respondent's conduct departs from excepted standards in particular the PTGR 2008 Cl 177 which provides: False or misleading entries in records and registers (1) A person who is required by this Regulation to keep any record or register must not make any entry in the record or register that the person knows to be false or misleading in a material particular. (2) A person must not make any alterations, obliterations or cancellations in a record or register required by this Regulation but may correct any mistake in any entry by making a marginal note or footnote and by initialling and dating it. Maximum penalty: 20 penalty units or imprisonment for 6 months, or both. Note. Section 307A of the Crimes Act 1900 creates the offence of providing false or misleading information in certain circumstances. The offence carries a maximum penalty imprisonment for 2 years, or 200 penalty units, or both. 1. The respondent's conduct falls below the standard expected of a pharmacist of equivalent training and experience. c. On 17 September 2017 the practitioner failed to report to the PRU the loss of drugs of addiction noted on the drug register at the pharmacy namely 84 OxyContin 10 mg. tablets. Respondent's Reply 1. The respondent admits to the conduct. The respondent states when carrying out the stock-take on 17 September 2017 she could not find three missing boxes of OxyContin 10 mg tablets but shortly before closing, she believed she had found an explanation and needed to make an entry "in" for three extra boxes of OxyContin. She accepts that she did not notify the PRU but, in accordance with the practice, notified Head Office on the following morning to inform them of the possible mishap with 84 OxyContin tablets. She told Head Office that she believed was an invoice error and they concurred. The respondent states that given the lack of time that pharmacists had to assist her she was usually instructed to examine the paperwork herself and refers to the practices of other pharmacists in the same organisation. Expert Finding 1. Below the expected standard Tribunal's Finding 1. The respondent admitted to on 17 September 2017 she failed to report to the PRU the loss of 84 Oxycontin 10mg tablets note on the drug register. 2. This conduct falls significantly below the standard expected of a pharmacist of equivalent training and experience. 12. On 3 November 2018 when dispensing a prescription for Endone for Person B at the pharmacy the practitioner failed to ensure correct prescription issue date was recorded in the dispensing records, in breach of cl 113 of the PTGR. Respondent's Reply 1. The respondent denies that on 3 November 2018 she breached cl 133 of the PTGR. Nevertheless, she accepts that she did not record the correct prescription issue date in the dispensing records on the basis that while she need not personally enter the prescription details into MINFOS, she did not check that the date had been changed from the default prescription date automatically entered by MINFOS to the correct prescription date. She states that it was the dispensary technician who had the responsibility to enter the prescription details into MINFOS Particular 12 of Complaint One. Expert Finding 1. Below the expected standard Tribunal's Finding 75. PTGR cl 113 provides: Supply on prescription to be recorded (1) A pharmacist who supplies a drug of addiction on prescription must record the following details in a manner approved by the Director-General: (a) the details required by clause 80 (1) to be included in the prescription, (b) a unique reference number for the prescription, (c) the date on which the substance was supplied, (d) the name of the person by whom the substance was supplied. Maximum penalty: 20 penalty units. (2) A prescription for the supply of a drug of addiction in a hospital need not be recorded so long as the chief pharmacist of the hospital keeps the prescription or a copy of the prescription. (3) The Director-General may, by order in writing, exempt any person or drug of addiction, or any class of persons or drugs of addiction, from the requirements of this clause. (4) Such an exemption may be given unconditionally or subject to conditions. 1. On 3 November 2018 when dispensing a prescription for Endone for Person B at the pharmacy, the respondent failed to ensure the correct prescription issue date was recorded in breach of clause 113 of the PTGR. Such conduct would be considered by her peers and pharmacists of good repute to be below that standard expected of a pharmacist of equivalent training and experience. The respondent admits to this and places the responsibility for this on a pharmacy technician's error, when in fact it was her responsibility to supervise the pharmacy technician's work. The respondent's conduct is below the expected standard. 13. On 10 January 2019, the practitioner had a number of printed pharmacy address labels, patient prescriptions and drug printouts at her home. Respondent's Reply 1. The respondent does not dispute such facts. Her evidence was to the effect that the prescriptions and drug printouts were secured in a locked cabinet at her home, but the labels were not so secured. The respondent informed the Tribunal that her reason for having such records at a home was to provide her with some "protection" in the event that any of the employees raised issues against her. She asserted that the working environment was "toxic" and that she needed some form of "insurance" in the event that she was blamed for some conduct. Also, in her evidence she gave a different reason, namely that she took the prescriptions home to check them but did not return them as she overlooked them. Tribunal's Finding 1. The respondent could not recollect nor provide any plausible reason for having the address labels of staff (who were also patients) at her home, outside the pharmacy premises. Such conduct constitutes a breach of those staff members' privacy. This conduct is unacceptable and falls below accepted standards. Such conduct occurred both before and after the respondent sustained her stroke. 2. Regarding the prescriptions and printouts found at the respondent's home, the Tribunal finds this as unsatisfactory conduct. No plausible reason has been provided by the respondent to explain why such material was not returned to the pharmacy. The respondent claimed these to be errors in dispensing. 3. As these documents contained names, addresses, medications, and Medicare numbers it was improper to store these at the respondent's home for such an extended period when they should have been kept at the pharmacy. This conduct falls below the standard expected of a pharmacist of equivalent training and experience. Complaint Two 1. This complaint was withdrawn by the amended complaint. Complaint Three 1. This complaint alleges that the practitioner is guilty of professional misconduct under section 139E of the National Law in that she has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of a registration; and/or 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 practitioners registration. Reply to Complaint Three 1. The practitioner denies Complaint Three and relies upon particulars which she has provided in answer to the Particulars to Complaint One. Respondent's statement 1. The respondent has provided a statement dated 15 September 2021. In such statement she confirms that she was employed at the pharmacy between 20 October 2014 and 30 January 2019. 2. On 14 March 2015 when she was aged 35 years 11 months, she suffered a significant ischaemic stroke which resulted in paralysis of the right side, speech, and memory loss. She has improved with physiotherapy and rehabilitation allowing her to return to work on 17 June 2015 on a graduated return to work plan. An MRI noted that she suffered a mini stroke (TIA) sometime during the prior six months. 3. The respondent was on medical leave due to a stroke on 14 March 2015 to 16 June 2015 and on maternity leave from 8 January 2018 to 17 August 2018. 4. The practitioner states relevantly: "The effects of my stroke whether my memory needs jogging sometimes. I could not put names to faces of regular customers on return to work, did not remember codes for alarm system or safe. Once told I retain the information. I also lost strength in my right side which means my handwriting is not as good as it used to be although it has been improving with time and pouring from bottles is difficult especially the larger bottles of methadone. I now find I am more emotional and have difficulty expressing myself and upset, sometimes need more time to process information, especially in unfamiliar situations. 1. The practitioner states that she wishes to make it clear that she had no knowledge of Person A's involvement in any illegal behaviour. She stated that they lived separate lives. She was working long hours at the pharmacy and caring for her infant son. She understood that Person A was working on property maintenance and undertaking tasks such as tree lopping and lawn mowing, and he held a heavy vehicle driver licence. Person A was often away overnight. During the course of the hearing, it became known that Person A has been charged and convicted with offences relating to drug dealing. 2. The practitioner states, in respect to the allegations against her, that she was instructed to report all losses, "not all discrepancies," to the Company's Head Office because "the time spent filling out paperwork or on the phone could be better spent finding the error," "customers come first," and "we'll sort it out and keep it in-house." Whilst the applicant tendered a memo dated 4 September 2015 addressed to all stores from the head office reminding pharmacists that the dispensing of the supplier drugs must be in accordance with the Regulations, there is no evidence that this memo was ever sent; nor received by the respondent, or indeed by any other pharmacy operated by the Company. Finding on Complaint 3 1. The Tribunal is satisfied that the conduct of the respondent as particularised in paragraphs 1-13 of Complaint One collectively constitutes professional misconduct as defined in s 139E of the National Law. The Tribunal considers that the dispensing of drugs to Person A in circumstances of a close relationship between the parties and the fact that it was known that the recipient of the drugs was already subject to an opioid treatment program; and the frequency of such prescribing, is particularly egregious conduct. 2. The Tribunal also considers that the respondent's failure to fulfil her obligations under the NSW Opioid Treatment Program Community Pharmacy Dosing Point Protocol, which requires that all registered pharmacists shall comply with the legislative and policy requirements of the Protocol, is a further example of egregious conduct. Although this is not the subject of any Particular, it is fundamental that a pharmacist must fulfil the requirements of such Protocol. 3. Further, the action of the respondent in taking to her home the prescriptions and data relating to other patients constituted a serious risk to the confidentiality of such patients. This is another egregious aspect of the respondent's conduct. Prior proceedings 1. The Pharmacy Council of New South Wales conducted a hearing under section 150 of the National Law on 2 April 2019. In consequence, pursuant to section 150(1)(b), conditions were imposed on her registration as contained in the written reasons dated 24 April 2019. Such conditions were as follows: 1. Not to work in a pharmacy as a pharmacist in charge. 2. Not to possess, supply, manufacture or dispense any "drug of addiction" including derivatives or compounded medication (schedule 8 on the NSW Poisons List (as defined by the Poisons and Therapeutic Goods Act 1966 (NSW) or any substance in an equivalent list in any other Australian State or Territory. 3. To provide by 11 April 2019 written evidence to the Pharmacy Council of NSW that she has attended the offices of the Pharmaceutical Regulatory Unit of the NSW Ministry of health and consented to an order being made under the PTGR to prohibit her from possessing, supplying, manufacturing, or dispensing any Schedule 8 drug. 4. To advise the Pharmacy Council of NSW of any change of employment within seven days of commencing employment. Evidentiary Certificate 1. An evidentiary certificate issued by the Australian Health Practitioner Regulation Agency confirms that the practitioner was first registered as a pharmacist (registered number PHA0001053118) on 15 November 2007 and that such registration remains current. Following the imposition of conditions on 4 April 2019 further conditions were published on the National Register on 17 June 2022 confirming that the practitioner must always practise as a pharmacist under the supervision of another pharmacist and requiring the practitioner to undertake certain courses. Principles 1. The object of the National Law is contained in section 3A thereof, namely that the paramount consideration must be the protection of the health and safety of the public. Where a person seeks to practise as a health professional, the ultimate test is whether the practitioner is a fit and proper person to be so registered. The term impairment is defined in section 5 of the National Law, relevantly as follows: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect – (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or… 1. The Tribunal has observed the demeanour of the practitioner. The remaining effects of her stroke were apparent in that at times she appeared to have difficulty in answering questions. However, she remains steadfast in her testimony that she notified the Head Office of any discrepancy or loss and understood from her instructions that that discharged her responsibilities to notify the PRU. 2. The Tribunal is faced with conflicting evidence: for the respondent, the sworn testimony of the practitioner which maintains that she notified the Group Dispensary Manager, Robyn Young, on each occasion of discrepancies which she found. For the applicant, there is no record held by the employer of any such notification. The Group Dispensary Manager, Robyn Young was not called to give evidence, yet, according to the respondent's evidence, Ms Young was the person to whom the verbal complaints were made on each occasion by the respondent. Ms Young could have provided critical evidence on this aspect. Her non-attendance was not explained. 3. The applicant bears the onus of proof of establishing the facts upon which it relies. In the absence of testimony from Ms Young, the Tribunal is not satisfied that onus has been discharged in respect of the question whether or not the company was notified of the discrepancies. That is, the Tribunal cannot be certain that the respondent did not make verbal notification of the discrepancies and losses to Head Office. Irrespective, the Tribunal finds that any such notification did not alleviate the respondent of her responsibility to notify the PRU of any loss or deficiency in the drug records. 4. It follows that there has been an acknowledged failure by the practitioner to fulfil her regulatory duty to report to the PRU. Whether such failure has resulted from any confusion in her mind following her stroke is unclear. However, the Tribunal is satisfied that the practitioner is suffering from the continuing effects of her stroke. Findings 1. The Tribunal finds that, because of her admitted failures, and despite the explanation concerning the issue of notification, the conduct of the practitioner, as particularised, constitutes unsatisfactory professional conduct within the meaning of s139B (1)(a) of the National Law. 2. Further, the conduct of the respondent in failing to report the drug losses, as particularised, constitutes a breach of section 124 of the PTGR; the failure to conduct a compulsory inventory check at the pharmacy for drugs of addiction, namely methadone, in March 2016, September 2016 and September 2017; and the provision of Antenex tablets to a close relative on 15 occasions in circumstances where the practitioner knew that Person A was a participant in an opioid treatment program; constituted a breach of the Pharmacy Board of Australia Code of Conduct, 2014, Part 3.14 are, both individually and collectively conduct which constitutes professional misconduct within the meaning of that definition as contained in s 139E of the National Law. 3. As referred to in Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), the handling and prescribing of drugs by medical practitioners is of the greatest importance to the community. As Hope JA said (Reynolds and Hutley JJA agreeing): "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." 1. Such principle applies, by analogy, to pharmacists. The Tribunal has taken into consideration the fact that the respondent has suffered ill health. However, such illness does not constitute an excuse for the failings which have been identified in the above paragraph. The respondent had a responsibility not to practise if she was prevented from meeting her professional standards. In this case, the standards have not been met in the manner particularised in the Complaints. 2. The Tribunal finds that the practitioner is suffering from an "impairment" as defined in section 5 of the National Law which, relative to the present circumstances, constitutes a physical or mental impairment or disability, condition or disorder which detrimentally affects, or is likely to detrimentally affect, the practitioner's capacity to practise her profession as a pharmacist. Disciplinary Sanction 1. The Tribunal notes the orders which are sought by the applicant which includes that she be suspended for a period of 12 months from practising as a pharmacist. 2. The Tribunal notes that the respondent has been considered fit to practise subject to conditions from 4 April 2019. The practitioner is currently in employment as a pharmacist subject to conditions. 3. Pharmacist X [name redacted for privacy reasons] has employed the respondent for the past 16 weeks. The pharmacist states that the respondent is fulfilling her duties without difficulty and is considered to be reliable. The Tribunal notes that the Council was satisfied in June 2022, that it was safe for her to continue to practise subject to conditions. 4. The respondent is permitted to work as a pharmacist subject to the conditions imposed referred to earlier in this decision. Currently the respondent is working three days a week in total comprising two full days and two half days over the past 16 weeks. The respondent has no access to Schedule 8 drugs during her employment. Pharmacist X has formed a very favourable impression of the respondent and considered that the respondent was an impressive pharmacist and had excellent interrelationships with her patients. Pharmacist X believed that the respondent would achieve her goal of being restored to unrestricted practice. 5. The Tribunal considers that, subject to the issues relating to the complaints, the practitioner should be permitted to serve a worthwhile role in the community by continuing to practise, subject to conditions. Provided those conditions are fulfilled, the prime object of protecting the public will be achieved. Further, it is not part of the Tribunal's function to impose any penalty for any shortcomings in the respondent's practice: the Tribunal's task is to ensure that the health and safety of the public is not put at risk. 6. For these reasons, the Tribunal concludes that the respondent's suspension is not required. Instead, the practitioner should be permitted to practise provided that similar conditions imposed by AHPRA and published on the National Register in June 2022 are imposed. The Tribunal notes that the respondent has not completed any courses since the imposition of the conditions by the Council, and accordingly the respondent will be required to complete such courses in the ensuing twelve months from the date of these orders. Further, the respondent will be referred to the Health Program of the Pharmacy Council of NSW. Costs 1. The applicant seeks an order that its costs be paid by the respondent. Under Schedule 5D, clause 13 of the National Law, the Tribunal has power to require a party appearing before it to pay the cost of another party. The New South Wales Court of Appeal in Health Care Complaints Commission v Philipia [2013]NSWCA 342 at (42) confirms that as a general rule the cost of proceedings before the Tribunal should follow the result. See also NSW Medical Board v Dinaker (2009) NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011) NSWMT 9 at [67]; and the discussion contained in Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. However, it should be noted that costs are not ordered by way of punishment but are purely compensatory for the successful party: see Latoudis v Casey (1990) 170 CLR 534 at [543] per Mason CJ; Ohn v Walton (1995) 36 NSWLR 77; Qasim v HCCC [2015] NSWCA 282 at [85]. 2. The respondent does not oppose the order for costs but has made specific submissions that an order that the respondent should pay all costs, should not be made. The respondent points to the fact that documentation was served late by the applicant; the application was amended; a statement was provided by one witness only days before the hearing and that such conduct was in breach of the Directions made by the Tribunal for the orderly presentation of the hearing. The Tribunal considers that the usual order should be made in view of the fact that it could not be said that the hearing extended beyond the time originally foreshadowed for the hearing; the applicant has been successful in virtually all of its allegations. In respect of the late amendment, the respondent was invited to apply for an adjournment of the hearing but did not do so. 3. The Tribunal considers that the usual rule as to cost prevails namely that the unsuccessful party, namely the respondent should pay the costs of the applicant. Orders 1. The Tribunal orders that 1. The name and address of the witnesses listed in the Schedule to the Complaint not to be disclosed under clause 7 Schedule 5D of the Health Practitioner Regulation National Law (NSW) ('National Law'). 2. The respondent practice for a period of 12 months from the date of these orders subject to the following conditions: 1. Always practise as a pharmacist under the supervision of another pharmacist, as approved by the Pharmacy Council of New South Wales. 2. Complete within 12 months from the date of these orders not less than 152 hours of supervised practice in accordance with the Pharmacy Board of Australia's (the Board's) Registration standard: Supervised practice arrangements 3. Successfully complete within 12 months of the date of these orders an oral examination (pharmacy law and ethics) in accordance with the Board's Registration standard: Examinations for eligibility for general registration. 4. Not to possess, supply, manufacture or dispense any "drug of addiction" including derivatives or compounded medication (Schedule 8 on the NSW Poisons List (as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW) or any substance in an equivalent list in any other Australian State or Territory. 5. Not to possess, supply, manufacture or dispense any substance listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW) or any substance in an equivalent list in any other Australian State or Territory. 6. To advise the Pharmacy Council of NSW of any change of employment within seven days of commencing employment. 1. The respondent be referred for assessment within the Health Program of the Pharmacy Council of NSW. 2. The respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law, and of the reserved costs in respect of the application before the Tribunal. ********** 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 Amendments 14 December 2022 - typographical error amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2022