Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sayar (No 2) [2023] NSWCATOD 85 Hearing dates: 27, 28 February and 1 March 2023 Date of orders: 16 May 2023 Decision date: 16 May 2023 Jurisdiction: Occupational Division Before: R C Titterton OAM, Senior Member Dr A Bennett, Senior Member B Scott, Senior Member M Maher, General Member Decision: 1. Complaint One, namely that pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW), the respondent has been convicted of criminal offences in New South Wales, is established. 2. Complaint Two, namely that the respondent is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), in that he contravened s 130(1) of the National Law, is established. 3. Complaint Three, namely that the respondent is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), in that he contravened s 109 of the Health Practitioner Regulation National Law (NSW), is established. 4. Complaint Four, namely that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW), in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy, is established. 5. Complaint Five, namely that the respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW), is established. 6. Complaint Six, namely that pursuant to s 144 (d) of the Health Practitioner Regulation National Law (NSW), the respondent has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability or condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the respondent's capacity to practise the profession of pharmacy, is established. 7. Complaint Seven, namely that the respondent is not competent within the meaning of s 144(c) of the Health Practitioner Regulation National Law (NSW), in that the respondent lacks the mental or physical capacity to practise as a pharmacist, is established. 8. Pursuant to s 149C(1)(a), (b) and (c) of the Health Practitioner Regulation National Law (NSW) the registration of the respondent as a pharmacist is cancelled. 9. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), the respondent may not make an application to review order (8) for a period of three years and six months from the date of these orders. 10. The respondent is to pay the applicant's costs as agreed or as assessed. Catchwords: OCCUPATIONS – pharmacists – misconduct and discipline – unsatisfactory professional conduct - professional misconduct – appropriate protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 38 Health Practitioner Regulation National Law (NSW), ss 41, 109, 130, 139B(1)(b), 139B(1)(l), 139E, 144, 149A, 149C, 150, 150A, 150C Legal Practitioner Uniform Law Application Act 2014 (NSW) Road Transport Act 2013 (NSW), s 110 Cases Cited: Health Care Complaints Commission v Abad [2009] NSWNMT 23 Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 Health Care Complaints Commission v Bradley [2022] NSWCATOD 47 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATO Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 Health Care Complaints Commission v Khan (No. 2) [2019] NSWCATOD 37 Health Care Complaints Commission v Le [2021] NSWCATOD 104 Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v Ly [2010] NSWMT 20 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Oladiran [2020] NSWCATOD 56 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 Health Care Complaints Commission v Turner [2016] NSWCATOD 163 Health Care Complaints Commission v Wood [2020] NSWCATOD 60 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 New South Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282. Sabag v Health Care Complaints Commission [2001] NSWCA 411 Wanigaratne v Health Care Complaints Commission [2000] NSWCA 204 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ahmad Sayar (Respondent) Representation: Counsel: E Vuu (Respondent) Solicitors: Health Care Complaints Commission (Applicant) McGirr & Associates (Respondent) File Number(s): 2022/00223106 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting disclosure to any person or entity of the names of the persons set out in the schedule to the amended complaint REASONS FOR DECISION Introduction 1. These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (Commission) against Mr Ahmad Shah Sayar (practitioner). 2. The matter was conducted as a combined Stage 1 and 2 proceeding on 27 and 28 February and 1 March 2023 3. The practitioner is a registered pharmacist whose registration was suspended on 10 March 2020. 4. The Commission seeks protective orders under ss 149A and 149C of the Health Practitioner Regulation National Law (NSW) (National Law) on the basis that the practitioner: 1. was convicted of two offences contrary to the Road Transport Act 2013 (NSW) (RT Act): 2. is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) and 144(b) of the National Law, in that he contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of relevant events (being the two convictions); 3. is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) of the National Law in that he contravened a provision of the National Law; 4. is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(l) of the National Law, in that he engaged in improper or unethical conduct relating to the practice of pharmacy; 5. is guilty of professional misconduct; 6. has an impairment; 7. is not competent to practise pharmacy. Evidence The Commission's evidence 1. The Commission's two volumes of materials included but were not limited to complaints, correspondence between the parties and with regulators, the transcript of a s 150 hearing and subsequent decision, witness statements, the expert reports of Dr Messner and NSW Health Codes of Conduct, Guidelines and Policies. 2. The practitioner required Dr Messner to attend for cross-examination. The practitioner's evidence 1. The practitioner filed two statements respectively dated 19 December 2022 and 1 February 2023, two character references, a document about Antabuse and an extract from the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, being pp 553 to 567. 2. The Commission required the practitioner for cross-examination. Agreed Facts 1. The parties have agreed on the following facts. The practitioner 1. In 1995, the practitioner obtained a Master of Pharmacy in Slovakia. 2. In 2006, the practitioner was first registered as a pharmacist in Australia. 3. Between about 2007 and 2018, the practitioner worked as a pharmacist at Blacktown Hospital and as a pharmacist at a community pharmacy in Rooty Hills. 2012 1. In 2012, the practitioner consumed alcohol and drove a motor vehicle with a low range prescribed concentration of alcohol (PCA). He received a bond but was not convicted. 2016 1. On 19 November 2016, the practitioner: 1. consumed alcohol, around 20 standard drinks; 2. drove a motor vehicle with a high range PCA; 3. produced a breath sample which returned a reading of 0.189; 4. was charged with one offence of 'drive with high range PCA' contrary to s 110(5)(a) of the RT Act. This offence carries a maximum penalty of 18 months' imprisonment. 5. failed to notify the Australian Health Practitioner Regulation Agency (AHPRA) of the charge within 7 days, or at all. 1. On 22 November 2016, the practitioner lodged an application to renew his registration as a pharmacist where he failed to disclose that had been charged with a criminal offence of 'high range PCA' on 19 November 2016. In response to question 9 "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?" the practitioner entered "No". 2. On 9 December 2016, the practitioner pleaded guilty and was convicted of one offence of 'drive high range PCA' contrary to s 110(5)(a) of the RT Act. This offence carries a maximum penalty of 18 months' imprisonment. The practitioner was fined $2,200, disqualified from driving for 9 months with a Mandatory Alcohol Interlock Order for 24 months. The practitioner failed to notify AHPRA of the conviction within 7 days, or at all. 3. After losing his licence, the practitioner increased his alcohol consumption and consumed alcohol throughout the day, twice a week. 2017 1. On 28 February 2017, the practitioner's severity appeal for the drive high range PCA was dismissed. 2. On Sunday 26 March 2017, the practitioner was on-call as the senior pharmacist at Blacktown Hospital. Sometime before 7:55 am, the practitioner received a call from work and he was requested to attend Blacktown Hospital. The practitioner attempted to locate alternative transport to Blacktown Hospital, including by contacting a taxi service. The practitioner failed to obtain alternative transport and drove his motor vehicle. 3. On Sunday 26 March 2017, the practitioner: 1. drove a motor vehicle during his disqualification period; 2. at around 7:55 am, saw police conducting random drug and alcohol testing then did a U-turn; 3. said, after police advised they would check his license, that he was driving to Mt Druitt Hospital from Blacktown Hospital and needed to return the hospital medicine cabinet keys; 4. was charged with one offence of 'drive motor vehicle on road during disqualification period' contrary to s 54(1)(a) of the RT Act. This offence carries a maximum penalty of 12 months imprisonment. The practitioner failed to notify AHPRA of the charge within 7 days, or at all. 1. On 28 April 2017, the practitioner pleaded guilty and was convicted of one offence of 'drive motor vehicle on road during disqualification period'. The practitioner was sentenced to a bond for 12 months, fined $1,000 and disqualified from driving for 2 years. The practitioner failed to notify AHPRA of the conviction within 7 days, or at all. 2. On 12 May 2017, the practitioner's severity appeal was dismissed. 3. In August 2017, the practitioner worked as a pharmacist at Lismore Base Hospital, on secondment for about 5 months. 4. On 3 December 2017, the practitioner lodged an application to renew his registration as a pharmacist where he failed to disclose that he had been convicted of a criminal offence of 'high range PCA' on 9 December 2016 and charged with 'drive motor vehicle on road during disqualification period' on 26 March 2017 then convicted of that offence on 28 April 2017. In response to question 1 "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?" the practitioner entered "No". 2018 1. From January 2018, the practitioner worked as a pharmacist at Blacktown and Mt Druitt Hospitals within the Western Sydney Local Health District (WSLHD). 2. On 3 May 2018, the practitioner: 1. was working as a pharmacist at Mount Druitt Hospital; 2. dispensed 20 Endone tables (when the prescription was for 10 only); 3. receipted a quantity of 100 ampoules of Morphine sulphate in error (actual quantity was 50 ampoules). 1. On 7 May 2018, the Western Sydney Local Health District (WSLHD) suspended the practitioner with pay as a result of several allegations regarding his conduct on 3 May 2018. The practitioner did not notify AHPRA within 7 days of the suspension, or at all. 2. On 8 November 2018, the practitioner attended an assessment with consultant psychiatrist Dr Atsumi Fukui. Around that time, the practitioner was working at a community pharmacy in Rooty Hill and working as a locum pharmacist in various locations. The practitioner reported that he consumed 1 to 2 glasses of wine approximately once a month. 3. On 22 November 2018, the practitioner: 1. lodged an application to renew his registration as a pharmacist; 2. failed to disclose that he had been convicted of a criminal offence of 'high range PCA' on 17 February 2017 and 'drive motor vehicle on road during disqualification period' on 28 April 2017. In response to question 1 "Since your last declaration to AHPRA, has there been any change to your criminal history in Australia that you have not declared to AHPRA?" the practitioner entered "No". 3. failed to disclose that his right to practice at WSLHD had been withdrawn on 7 May 2018 and during the preceding period of registration. In response to question 10 "During your preceding period of registration, has your right to practise at a hospital … been withdrawn or restricted because of your conduct, professional performance or health?" the practitioner responded "No". 4. failed to disclose the details of complaints made against him which he was notified of on or around 7 May 2018 and during the preceding period of registration. In response to question 12 "Have you previously disclosed to AHPRA all known complaints made about you …" the practitioner responded "Yes". 2019 1. On 16 January 2019, the practitioner was employed by Ravens Recruitment agency to work as a locum pharmacist within community pharmacies in Sydney. 2. Between May to November 2019, the practitioner worked as a pharmacy manager at Macarthur Square Priceline Pharmacy. 2020 1. On 2 January 2020, the practitioner was employed by Ravens Recruitment agency to work as a locum pharmacist at Ramsay Pharmacy in Caringbah on 14 to 25 January 2020. 2. On Thursday 14 January 2020, the practitioner: 1. worked from 8am at Ramsay Pharmacy in Caringbah as a locum Pharmacist; 2. consumed alcohol before his shift and worked under the influence of alcohol; 3. made some minor errors then, after 12:30pm, was very confused and forgetful and made lots of errors (including strength and dose); 4. gave several customers the incorrect dose of medication, lost scripts, and: 1. dispensed the incorrect strength of Janumet which was not scanned; 2. dispensed an out of date prescription for Sertraline; and 3. incorrectly labelled a box of 50mcg Eltroxin as 75mcg; 1. was vague, forgetful, made errors, left the premises unattended by a registered pharmacist, could barely stand up when he returned, was swaying and couldn't answer simple questions asked by the staff; 2. after the retail manager asked several times if he was feeling ok, replied with a slurred voice; 3. caused the retail manager to feel frightened and unsafe, so she then sought advice and telephoned an ambulance; 4. refused any assessment other than a blood pressure check when the ambulance arrived at about 12:45pm and refused to go with the paramedics; 5. did not reply when the regional manager texted enquiring if he was ok; 6. did not attend Liverpool Hospital; 7. did not attend Westmead Hospital. 1. On 15 January 2020, the practitioner: 1. at about 9:15 am, gave false or misleading information to his employer (Person A) at Raven Recruitment in that he said that: 1. at about 2 pm on 14 January 2020 he started to feel extremely unwell and disoriented; 2. he travelled by taxi to Westmead Hospital; 3. he was at Westmead Hospital for about 3 hours; 4. the doctor at the hospital said he had an epileptic seizure; 1. knew when he made the above remarks that they were false or misleading. 2. claimed that the doctor at the hospital had sent a letter to his GP and that he had a follow up visit with his GP, which was false. 3. was informed that his remaining locum shifts were cancelled and was asked to provide the discharge letter, blood test results and a letter advising he was fit for work. 1. On 16 January 2020, the practitioner did not attend Blacktown Hospital. 2. On an unknown date around 17 January 2020, the practitioner: 1. falsified a Discharge Summary dated 14 January 2020 (purporting to be from Liverpool Hospital, purporting that he was admitted on 14 January 2020 and purporting that his blood alcohol concentration (BAC) was 0.0%). 2. falsified a Discharge Summary dated 18 January 2020 (purporting to be from Blacktown Hospital, purporting that he was admitted on 16 January 2020, purporting that his BAC was 0.0%). 1. On Sunday 17 January 2020, the practitioner: 1. worked as a locum pharmacist at Glenorie Pharmacy; 2. consumed alcohol, when he went to a nearby liquor store during his break, drank beer and spirits, returned to the pharmacy then worked under the influence of alcohol; 3. consumed benzodiazepine, when he took Ativan (lorazepam) which he had stolen from his elderly father-in law; 4. after about 3pm-4pm, the practitioner's speech was slurred, he was very agitated and stressed; 5. at about 4pm, the practitioner picked up his bag and began getting ready to leave even though he was rostered to work until 6 pm. After the dispensary assistant explained there was another two hours left of the shift, the practitioner stayed; 6. at about 4:05pm, took a customer's script and said "do you want something different?", the dispensary assistant asked the practitioner to get the Endone from the safe, the practitioner reached for his pocket, fell head first onto the floor; 7. after the dispensary assistant asked the practitioner if he was ok, replied "yes, why". After she said "you just fell over on your head", he replied "no I didn't, I'm fine"; 8. after the ambulance arrived at 4:43pm, was very lethargic, repeating questions and not aware of the arrival of the ambulance then asleep; 9. after a local GP arrived, could not remember an earlier conversation, did not know where he was, what had happened or what day it was. The practitioner was confused, could not answer questions about the name and address of the pharmacy and continually declined medical advice to go to hospital. The practitioner refused an ECG and declined to go to hospital; 10. on the way to the ambulance, held his bag which contained two empty bottles of Jim Beam Bourbon Whisky; 11. was agitated and tried to abscond, then ambulance officers convinced the patient to be conveyed to hospital; 12. was unable to retain or explain the risk of non-treatment, had slurred speech, unable to tell time/place/person, couldn't recognize pharmacy staff, was confused and speaking incoherently; 13. at 6:34pm, was admitted to Blacktown Hospital; 14. had a positive BAC of 0.30 at approximately 7:27 pm; 15. had a positive urinalysis for benzodiazepines at approximately 10:11pm. 1. On 20 January 2020, the practitioner provided a false Discharge Summary (purporting to be from Liverpool Hospital) dated 14 January 2020 to his employer (Person A) at Raven Recruitment. 2. On 20 January 2020, the practitioner provided Person B, the owner of Glenorie Pharmacy, a forged discharge summary dated 18 January 2020 (purporting to be from Blacktown Hospital, purporting that he was admitted on 16 January 2020 and purporting that his BAC was 0.0%). 3. On 13 February 2020, the practitioner received a letter from the Pharmacy Council of NSW (Council) inviting him to attend a further s 150 hearing and a notice asking him to provide all discharge summaries and blood work for the past 12 months. 4. On 17 February 2020 or 18 February 2020, the practitioner submitted a false Discharge Summary dated 14 January 2020 to the Council (purporting to be from Liverpool Hospital, purporting that he was admitted on 14 January 2020 and purporting that his BAC was 0.0%). 5. On 18 February 2020, the practitioner: 1. attended a s 150 Hearing; 2. when discussing the incident on 14 January 2020, the practitioner told the delegates: 1. he was suffering from food poisoning and vertigo, when he was not; 2. he did not refuse to go to hospital by NSW ambulance, when he had refused; and 3. he checked himself into Liverpool Hospital at 3:15 pm, when he had not; 1. knew when he made the above remarks that they were false or misleading; 2. failed to disclose the incident on 17 January 2020 at Glenorie Pharmacy; 3. failed to disclose that the Discharge Summary dated 14 January 2020 (purporting to be from Liverpool Hospital) was a forgery. 1. On 20 February 2020, the Council imposed conditions on the practitioner's registration that he not work as the pharmacist in charge and that he attend a GP assessment and health assessment. 2. On 4 March 2020, the practitioner received a letter from the Council informing him of the conditions. 3. On 5 March 2020, the Council published its decision imposing conditions on the practitioner's registration. 4. On 9 March 2020, the practitioner: 1. gave evidence during a s 150C hearing; 2. when discussing the incident on 14 January 2020, told the delegates: 1. he was suffering from food poisoning, when he was not; 2. he had presented to Liverpool Hospital, when he had not; 3. the hospital had a problem with its computers and he had to pick up the discharge summary the following day, which was not true; 4. Liverpool Hospital lost his records, when they had not; 1. knew when he made the above remarks that they were false or misleading; 2. when discussing the incident on 17 January 2020, told the delegates: 1. the empty whisky bottles in the practitioner's personal bag were not his; 2. he only drank alcohol once a month; 3. he did not drink alcohol that day; 4. the only medication he took regularly was Phenergan; 5. that he did not attend hospital. 1. knew when he made the above remarks that they were false or misleading. 1. On 10 March 2020, the Council suspended the practitioner's registration. 2. On 11 March 2020, the practitioner wrote to the Commission stating that the whisky bottles found in his bag on 17 January 2020 were not his, which was false. 3. On 17 March 2020, the practitioner wrote to the Commission stating that he had contracted food poisoning on 14 January 2020 which was false. 4. On 31 March 2020, the Council published its decision suspending the practitioner's registration. 5. On 25 May 2020, the practitioner applied to the Council to review the suspension. The practitioner claimed that he had suffered food poisoning and that he had never previously engaged in the falsifying of documents. The practitioner submitted an undated letter from Medical Practitioner A and a letter dated 13 May 2020 from Medical Practitioner B, to support his return to work as a pharmacist. The practitioner did not disclose his alcohol use to either Medical Practitioner A or Medical Practitioner B. The practitioner had given Medical Practitioner A false information that he suffered from food poisoning on 14 January 2020, that he fell over on 14 January 2020 and was found on the floor with jerking movements, that he went to Liverpool Hospital on 14 January 2020, and that he was not transported to Blacktown Hospital by ambulance on 17 January 2020. The practitioner had given Medical Practitioner B false information that he suffered from food poisoning on 14 January 2020, that he fell over on 14 January 2020 and was found on the floor with jerking movements, and that he was not transported to Blacktown Hospital by ambulance on 17 January 2020. 6. On 30 June 2020, the practitioner: 1. gave evidence at a s 150A hearing; 2. during which he told the delegates: 1. he only forged the 14 January Discharge Summary and Results, not the 18 January Discharge Summary and Results; 2. he did not present to Blacktown Hospital on 17 January 2020; and 3. he collapsed on 14 January because of food poisoning. 1. knew when he made the above remarks that they were false or misleading; 2. provided the delegates with the reports from Medical Practitioner A and Medical Practitioner B, which were false or misleading in that they were prepared following the provision of false information by the practitioner. 1. On 2 September 2020, the Council published its decision affirming the suspension. 2021 1. On 27 April 2021, the practitioner attended an assessment with Psychiatrist Dr Susan Messner. The practitioner was diagnosed with alcohol misuse disorder (AMD). 2022 1. On 6 December 2022, the practitioner attended a further assessment with Dr Messner. Dr Messner repeated her diagnosis of AMD. Complaint One 1. Complaint One is that pursuant to s 144(a) of the National Law, the practitioner has been convicted of criminal offences in New South Wales. Particulars of Complaint One 1. The Particulars of Complaint One are: 1. on 9 December 2016 the practitioner was convicted of one offence of 'drive with high range PCA' contrary to s 110(5)(a) of the RT Act; 2. on 28 April 2017 the practitioner was convicted of one offence of 'drive motor vehicle on road during disqualified period' contrary to s 54(1)(a) of the RT Act. Are the Particulars of Complaint One proved? 1. We find the conduct the subject of the Particulars of Complaint One proved given the relevant agreed facts and the Reply to Disciplinary Findings (Reply) where the practitioner admits Complaint One. Is Complaint One established? 1. In the circumstances, we find that Complaint One is established. Complaint Two 1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law by failing to notify the National Board within 7 days of relevant events. Particulars of Complaint Two 1. The particulars of Complaint Two are: 1. the practitioner failed to notify the National Board within 7 days when charged on 19 November 2016 with the offence of 'drive with high range PCA'; 2. the practitioner failed to notify the National Board within 7 days of being convicted on 9 December 2016 of the offence referred to in Complaint One, Particular 1; 3. the practitioner failed to notify the National Board within 7 days when charged on 26 March 2017 with the offence of 'drive motor vehicle on road during disqualification period'; 4. the practitioner failed to notify the National Board within 7 days of being convicted on 28 April 2017 of the offence referred to in Complaint One, Particular 2; 5. the practitioner failed to notify the National Board within 7 days of being withdrawn or restricted on 7 May 2018 from his employment at WSLHD. Are the Particulars of Complaint Two proved? 1. We find the conduct the subject of the Particulars of Complaint Two proved given the relevant agreed facts and the Reply to Disciplinary Findings (Reply) where the practitioner admits Complaint Two. Is Complaint Two established? 1. Sections 130, 139B(1)(b) and 144(b) of the National Law are relevant to Complaint Two. 2. Section 130 of the National Law provides: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section— relevant event means— (a) in relation to a registered health practitioner— (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or … (iv) the practitioner's right to practise at a hospital or another facility at which health services are provided is withdrawn or restricted because of the practitioner's conduct, professional performance or health; or … 1. Section 139B(1)(b) of the National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. Section 144(b) of the National Law provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner— … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. 1. We find that: 1. the conduct the subject of each of Particulars 1 and 3 of Complaint Two is unsatisfactory professional conduct pursuant to ss 139B(1)(b) and 144(b) of the National Law, in that each Particular establishes a breach of s 130(3)(a)(i) of the National Law; 2. the conduct the subject of each of Particulars 2 and 4 of Complaint Two is unsatisfactory professional conduct pursuant to ss 139B(1)(b) and 144(b) of the National Law, in that each Particular establishes a breach of s 130(3)(a)(ii) of the National Law; 3. the conduct the subject of Particular 5 of Complaint Two is unsatisfactory professional conduct pursuant to ss 139B(1)(b) of the National Law, in that the Particular establishes a breach of s 130(3)(a)(iv) of the National Law. 1. Accordingly, we find Complaint Two established. Complaint Three 1. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the National Law. Particulars of Complaint Three 1. The Particulars of Complaint Three are that: 1. the practitioner failed to disclose details of any change in his criminal history that occurred during his preceding period of registration when lodging a renewal application on 22 November 2016, in contravention of s 109(1)(b) of the National Law; 2. the practitioner failed to disclose details of any change in his criminal history that occurred during his preceding period of registration when lodging a renewal application on 3 December 2017, in contravention of s 109(1)(b) of the National Law; 3. the practitioner failed to disclose details of any change in his criminal history that occurred during his preceding period of registration when lodging a renewal application on 22 November 2018, in contravention of s 109(1)(b) of the National Law; 4. the practitioner failed to disclose details of the withdrawal of his right to practise at WSLHD that occurred during his preceding period of registration when lodging a renewal application on 22 November 2018, in contravention of s 109(1)(c) of the National Law; 5. the practitioner failed to disclose details of the complaints made against him that he was notified of during his preceding period of registration when lodging a renewal application on 22 November 2018, in contravention of s 109(1)(e) of the National Law. Are the Particulars of Complaint Three proved? 1. We find the conduct the subject of the Particulars of Complaint Three proved given the relevant agreed facts and the Reply to Disciplinary Findings (Reply) where the practitioner admits Complaint Three. Is Complaint Three established? 1. Together with s 139B(1)(b) of the National Law, ss 109B(1)(b), (c) and (e) of the National Law are relevant to Complaint Three. Section 139(1)(b) is set out above. Section 109 provides: 109 Annual statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following— … (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration; … (c) if the applicant's right to practise at a hospital or another facility at which health services are provided was withdrawn or restricted during the applicant's preceding period of registration because of the applicant's conduct, professional performance or health, details of the withdrawal or restriction of the right to practise; … (e) details of any complaint made about the applicant to a registration authority or another entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners; 1. We find that: 1. the conduct the subject of each of Particulars 1, 2 and 3 of Complaint Three is unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law, in that each Particular establishes a breach of s 109(1)(b) of the National Law; 2. the conduct the subject of Particular 4 of Complaint Three is unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law, in that Particular 4 establishes a breach of s 109(1)(c) of the National Law; 3. the conduct the subject of Particular 5 of Complaint Three is unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law, in that Particular 5 establishes a breach of s 109(1)(e) of the National Law. Complaint Four 1. Complaint Four is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. Particulars of Complaint Four 1. The Particulars of Complaint Four are: 14 January 2020 incident 1. on 14 January 2020 at approximately 1230hrs, while employed as a locum pharmacist at Bowen's Pharmacy Caringbah, the practitioner worked under the influence of alcohol; 2. on 15 January 2020 the practitioner gave false and misleading information to Person A of Raven Recruitment, in that he told Person A: 1. he presented to Westmead Hospital on 14 January 2020; 2. a doctor at Westmead Hospital had diagnosed him as having suffered an epileptic seizure on 14 January 2020; 1. on 20 January 2020 the practitioner engaged in false and misleading conduct when he provided Person A of Raven Recruitment, with a forged discharge summary and pathology results dated 14 January 2020 which purported to be from Liverpool Hospital and showed a blood alcohol concentration result of 0.0%; (14 January Discharge Summary and Results) 17 January 2020 incident 1. on 17 January 2020, whilst employed as a locum pharmacist at Glenorie Pharmacy, the practitioner worked under the influence of alcohol and/or benzodiazepines, in circumstances where the practitioner: 1. was found to have two empty whiskey bottles in his bag; 2. at approximately 1605hrs collapsed at work and refused to be taken by ambulance to Blacktown Hospital Emergency Department; 3. presented to Blacktown Hospital following transfer by NSW Ambulance and returned a positive blood alcohol level of 0.30 following testing conducted at approximately 1927hrs; and 4. presented to Blacktown Hospital following transfer by NSW Ambulance and returned a positive urine reading for benzodiazepines following testing conducted at approximately 2211hrs; 1. on or after 17 January 2020 the practitioner engaged in false and misleading conduct when he provided to Person B, from Glenorie Pharmacy, a forged a discharge summary and pathology results dated 18 January 2020 which purported to be from Blacktown Hospital and showed a blood alcohol concentration result of 0% (18 January Discharge Summary and Results); False and misleading evidence to the Council 1. on 18 February 2020 the practitioner gave false or misleading information to the delegates of the Council, in that during the course of proceedings pursuant to s 150 of the National Law, the practitioner told the delegates in relation to the incident on 14 January 2020: 1. he was suffering from food poisoning and vertigo when he was not; 2. he did not refuse to go to the hospital by NSW ambulance when he had refused; 3. he checked himself into Liverpool Hospital at 1515hrs when he had not; 1. on 18 February 2020, at the proceedings pursuant to s 150 of the National Law the practitioner failed to disclose the 17 January 2020 incident; 2. on 17 and/or 18 February 2020, for proceedings pursuant to s 150 of the National Law the practitioner provided the Council with the 14 January Discharge Summary and Results which were false and misleading; 3. on 9 March 2020, the practitioner gave false or misleading information to the delegates of the Council, in that during the course of proceedings pursuant to s 150C of the National Law, the practitioner told the delegates in relation to the incident on 14 January 2020: 1. he was suffering from food poisoning when he was not; 2. he had presented to Liverpool Hospital when he had not; 3. the hospital had a problem with its computers and he had to pick up discharge summary the following day which was not true; 4. Liverpool Hospital lost his records when they had not. 1. on 9 March 2020, the practitioner gave false or misleading information to the delegates of the Council, in that during the course of proceedings pursuant to s 150C of the National Law the practitioner told the delegates in relation to the incident on 17 January 2020: 1. the empty whisky bottles in the practitioner's personal bag were not his; 2. he only drank alcohol once a month; 3. he did not drink alcohol that day; 4. the only medication he took regularly was Phenergan; 5. that his wife picked him up and he did not attend hospital. 1. on 30 June 2020, the practitioner gave false or misleading information to the delegates of the Council, in that during the course of proceedings pursuant to s 150A of the National Law the practitioner told the delegates: 1. he only forged the 14 January Discharge Summary and Results and not the 18 January Discharge Summary and Results; 2. he did not present to Blacktown Hospital on 17 January 2020; and 3. he collapsed on 14 January 2020 because of food poisoning. 1. on 30 June 2020, at proceedings pursuant to s 150A of the National Law the practitioner tendered two medical reports authored by Medical Practitioner A and Medical Practitioner B, which were false and misleading, in that the reports were prepared following the provision of false information by the practitioner to Medical Practitioner A and/or Medical Practitioner B, including: 1. that the practitioner presented to Liverpool Hospital on 14 January 2020 when he did not; 2. that the practitioner fell over on 14 January 2020 and was found on the floor with jerking movements; and 3. that the practitioner was not transported to Blacktown Hospital by NSW Ambulance on 17 January 2020. False and misleading evidence to the Commission 1. on 11 March 2020, the practitioner gave false or misleading information to the Commission, in that during the course of its investigation, the practitioner submitted a written response to the Commission regarding the incident on 17 January 2020 where the practitioner stated the whisky bottles found in the practitioner's bag were not his; 2. on 17 March 2020, the practitioner gave false or misleading information to the Commission, in that during the course of its investigation, the practitioner submitted a written response to the Commission regarding the incident on 14 January 2020 where the practitioner stated he had contracted food poisoning. Are the Particulars to Complaint Four proved? 1. We find the conduct the subject of the Particulars of Complaint Four established given: 1. the relevant agreed facts; 2. the practitioner's admission to Dr Messner that he worked under the influence of alcohol; 3. the practitioner's admission that he worked under the influence of alcohol on 14 January 2020; 4. the evidence that the practitioner on 14 January 2020: 1. made some minor errors then, after 12:30pm, was very confused and forgetful and made lots of errors (including strength and dose); 2. offered to dispense a lower dose than required by the prescription, was confused, his speech was slow, he had difficulty understanding requests, poor concentration and lost the script. 3. gave several customers the incorrect dose of medication and lost scripts. 1. the practitioner's admission that he drank during his lunch break then collapsed at work on 14 January 2020; 2. the Reply where the practitioner admits Complaint Four. Is Complaint Four established? 1. Section 139B(1)(l) of the National Law 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— … (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. 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 [54]. 2. In addition to those principles, the Commission submits that the following principles are relevant: 1. the relevant ordinary meanings of improper include not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong: Liu at [53]; 2. in professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner: Liu at [54]; 3. it is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: Liu at [55]; 4. to make a finding of improper or unethical conduct, it is not necessary for the Tribunal to be satisfied that the conduct is intentional: improper conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [19]-[21]; 5. impropriety does not depend on the practitioner's consciousness of impropriety, it consists in a breach of the standards of conduct that would be expected of a person in the position of the practitioner by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case: Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]; 6. codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession (National Law, s 41) and may be relevant to whether conduct is improper or unethical. 1. The Tribunal finds that each of the particularised conduct set out under the headings "14 January 2020 incident", the "17 January 2020 incident", "False and misleading evidence to the Pharmacy Council", "False and misleading evidence to the Commission" set out in the Complaint is unsatisfactory professional conduct pursuant to ss 139B(1)(l) of the National Law. Complaint Five 1. Complaint Five is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the 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 Particulars of Complaint Five are the Particulars of Complaints Two, Three and Four, which are relied on individually and cumulatively. 2. The Tribunal stated in Health Care Complaints Commission v Le [2021] NSWCATOD 104 that: 71. The principles relating to findings of professional misconduct were stated in Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 at [69] to [75] which we paraphrase as follows: (1) Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55]; (2) Guidance as to the circumstances in which suspension or cancellation of registration are appropriate is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") (Basten and Emmett JJA agreeing). His Honour stated: [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. (3) Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. (4) Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (5) As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186, "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes: [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. … Complaint Two 1. The Commission submits that the conduct the subject of Complaint Two is conduct that, alone or together with other conduct, is of a sufficiently serious nature to justify suspension or cancellation because: 1. the practitioner had ample experience as a pharmacist so he must have been aware of the requirements to promptly notify AHPRA regarding criminal charges and convictions; 2. as was stated in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [190]. Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place. … These provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow regulatory authorities to decide whether a health practitioner's criminal history is relevant to the practise of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". 1. AHPRA is responsible for receiving notifications of criminal charges and criminal findings so it can take prompt action to protect the public; 2. the practitioner must have known that by not mentioning his criminal charges/convictions in his renewals, AHPRA would remain unaware of his criminal conduct. 1. The practitioner admits that when the Complaints Two, Three and Four are considered cumulatively, Complaint Five is established. However, the Tribunal does not understand him to accept that when Complaint Two is considered individually, that Complaint Five is established. This is made clear in the practitioner's submissions of 28 March 2023, which are considered below. 2. However, we consider that there is substance in the Commission's submissions and we are satisfied that the conduct the subject of Complaint Two is of itself is professional misconduct. Complaint Three 1. The Commission submits that the conduct the subject of Complaint Three is conduct that, alone or together with other conduct, is of a sufficiently serious nature to justify suspension or cancellation because: 1. the practitioner's conduct was not isolated: 1. his 2016 renewal form falsely claimed no change to his criminal history (when he had in fact been charged with the first offence only 3 days previously); 2. his 2017 renewal again falsely claimed no change to his criminal history (when he had in fact been convicted of the first offence and charged and convicted of the second offence and both convictions had been confirmed on appeal); 3. his 2018 renewal again claimed no change to his criminal history and failed to disclose his suspension or the complaints made against him (when he had in fact been suspended by the hospital and been notified of two complaints against him); 1. AHPRA relies on health practitioners submitting honest renewals. 1. The practitioner does not accept that when Complaint Three is considered individually, that Complaint Five is established. This is made clear in the practitioner's submissions of 28 March 2023, which are considered below. 2. However, we consider that there is substance in the Commission's submissions and we are satisfied that the conduct the subject of Complaint Three is of itself professional misconduct. Complaint Four Particulars 1 and 4 1. The Commission submits that the conduct the subject of Particulars 1 and 4 of Complaint Four ("Working under the influence") is conduct that, alone or together with other conduct, is of a sufficiently serious nature to justify suspension or cancellation because: 1. the practitioner must have already known that it was wrong to work under the influence because he had already received an allegation of working under the influence on 3 May 2018 which was regarded as "serious" and "placed the public at risk of substantial harm", was regarded as "notifiable conduct", and had already resulted in his employment being suspended then terminated; 2. after receiving the letter alleging working under the influence on 3 May 2018, the practitioner knew that if he were to work under the influence in future it would be a serious allegation, staff might complain or lodge a mandatory notification, and it may jeopardise his employment and his registration; 3. working under the influence posed a risk of harm to patients (including dispensing errors regarding strength and dose incorrect labelling and an out of date prescription, left the premises unattended by a registered pharmacist); 4. working under the influence adversely impacted on other health practitioners. 1. The practitioner submits that it would be unfair to make a finding of professional misconduct on the basis of Complaint Four alone. No further explanation for that submission is given, which we reject. 2. In our view, the conduct the subject of Particulars 1 and 4 of Complaint Four is of itself is professional misconduct. Particulars 3, 6 and 8 1. The Commission submits that the conduct the subject of Particulars 3, 6 and 8 of Complaint 4 ("Providing forged documents") is conduct that, alone or together with other conduct, is of a sufficiently serious nature to justify suspension or cancellation because: 1. the practitioner deliberately provided the forged 14 January discharge summary to his employer (Person A) to deflect scrutiny for his poor work performance on 14 January 2020 (he knew the retail manager was so concerned about his performance that she had called an ambulance, the regional manager had attempted to contact him, he tried to assure Person A by falsely claiming that a hospital doctor had reviewed him and that he had a follow up visit with his GP, he knew that his remaining locum shifts were cancelled until he could provide a discharge letter, blood test results and a letter advising he was fit for work so he provided the forged discharge summary so he could keep his shifts); 2. the practitioner deliberately provided the forged 18 January discharge summary to his employer (Person B, a fellow pharmacist) to deflect scrutiny for his poor work performance on 17 January 2020 (he knew the dispensary assistant was so concerned about his performance that she had called an ambulance and he provided the forged discharge summary so he could keep his shifts); 3. the practitioner deliberately provided the forged 14 January discharge summary to the Council delegates (including two fellow pharmacists) to deflect scrutiny for his poor work performance on 14 January 2020 (he received a copy of the regional manager's complaint about performance on 14 January 2020, he received a letter from the Council inviting him to attend a s 150 hearing about that complaint, he received a notice asking him to provide all discharge summaries and blood work for the past 12 months); 4. the practitioner provided the forged 14 January discharge summary to the Council notwithstanding clear warnings in the letter and notice that it is an offence to provide false or misleading information; 5. when the practitioner provided the forged 14 January discharge summary to the Council he intended the Council to rely on it as genuine so he could keep his registration so included a false acknowledgement "I acknowledge that the information I have provided is, to the best of my knowledge, true and correct; 6. providing information to the Council in response to a notice knowing it to be false or misleading in a material particular is serious because it is an offence contrary to the National Law; 7. the practitioner showed disrespect by using the names of other registered health practitioners to make his forged documents appear legitimate and by using the Medical Record Number belonging to an unknown patient; 8. the practitioner placed his personal interests (to keep his locum shifts, keep his registration and keep getting paid) above patient safety. 1. We repeat [92] above. 2. In our view, the conduct the subject of Particulars 3, 6 and 8 of Complaint Four is of itself professional misconduct. Particulars 2, 6-7 and 9-14 1. The Commission submits that the conduct the subject of Particulars 2, 6-7 and 9-14 of Complaint 4 (false/misleading information) is conduct that, alone or together with other conduct, is of a sufficiently serious nature to justify suspension or cancellation because: 1. the practitioner deliberately lied to his pharmacy employer on 15 January 2020 to give the false impression that he had an epileptic seizure and had sought medical treatment so he could keep his shifts; 2. the practitioner deliberately lied to his professional Council on 18 February 2020 to give the false impression that he had food poisoning and had sought medical treatment so he could avoid suspension; 3. the practitioner deliberately concealed 17 February 2020 incident from the Council (notwithstanding that it had occurred the previous day, showed very similar poor performance and was highly relevant to the Council's decision making); 4. the practitioner again deliberately lied to the Council on 8 March 2020 to maintain the false impression that he had food poisoning and had sought medical treatment on 14 January 2020 and to give the false impression that he had not been drinking and had not needed medical treatment on 17 January 2020 and deliberately concealed his Blacktown Hospital admission (notwithstanding that it was highly relevant) to try to avoid suspension; 5. the practitioner again deliberately lied to the Council on 30 June 2020 to maintain the false impression that he had food poisoning on 14 January 2020 and maintain the false impression that he had not needed medical treatment on 17 January 2020 and deliberately concealed that he had forged the 18 January 2020 discharge summary (notwithstanding that it was highly relevant) so he could try to lift the suspension; 6. the practitioner deliberately lied to the Commission on 11 March 2020 to give the false impression that he had not been drinking on 17 January 2020 so he could avoid scrutiny; 7. the practitioner again deliberately lied to the Commission on 17 March 2020 (only 6 days later) to give the false impression that he had food poisoning on 14 January 2020 so he could avoid scrutiny; 8. before lying to the Commission, the practitioner knew that the complaints were being assessed by the Commission, he was invited to notify and consult his lawyer or insurer and given a reasonable period to respond; 9. provision of false and misleading information alone may constitute such a serious and deliberate departure from accepted professional standards as to constitute professional misconduct: Wanigaratne v Health Care Complaints Commission [2000] NSWCA 204 [62]; Health Care Complaints Commission v Abad [2009] NSWNMT 23 at [36]; Health Care Complaints Commission v Oladiran [2020] NSWCATOD 56 at [49]. 1. We repeat [92] above. 2. In our view, the conduct the subject of Particulars 2, 6-7 and 9-14 of Complaint Four is of itself professional misconduct. 3. We note in particular that provision of false and misleading information alone may constitute such a serious and deliberate departure from accepted professional standards as to constitute professional misconduct: Wanigaratne v Health Care Complaints Commission [2000] NSWCA 204 [62]; Health Care Complaints Commission v Abad [2009] NSWNMT 23 at [36]; Health Care Complaints Commission v Oladiran [2020] NSWCATOD 56 at [49]. The practitioner's submissions of 28 March 2023 1. These submissions were intended to address an application by the practitioner for a certificate issued pursuant to s 128 of the Evidence Act 1975 (NSW) in relation to certain materials filed in the proceedings, including but not limited to portions of a statement of the practitioner sworn 19 December 2022, the Statement of Agreed Facts and the Reply. 2. Contained in these submissions were the following submissions in relation to Complaint Five (footnotes omitted, and in summary): Permutations for Complaint 5 9. It was open to the [Commission] to plead, individually, Complaints 2, 3 and 4 as justifying separate finding of professional misconduct instead of unsatisfactory professional conduct – the [Commission] did not so plead (either in its original Complaint, or its Amended Complaint). Instead, the [Commission] rolled up those complaints and in doing so, the [Commission] has tossed up seven (7) permutations to make good Complaint 5. Amended Complaints 2 3 4 Reply from [practitioner] A Complaint 5 is made good. B The [practitioner] says this cannot be made good. C The [practitioner] says it would be unfair to make a finding of professional misconduct on this basis. D The [practitioner] says it would be unfair to make a finding of professional misconduct on this basis. E The [practitioner] says this cannot be made good. F The [practitioner] says this cannot be made good. G The [practitioner] says it would be unfair to make a finding of professional misconduct on this basis. Permutations B, E and F 10. The [practitioner] submits that Complaint 2 and Complaint 3 standing in isolation, that being permutations E and F are not sufficiently grave to support a finding of professional misconduct; nor could that support be found if both complaints are taken together (that being permutation B). Permutations C, D and G 11. The [practitioner] acknowledges that his conduct the subject of Complaint 4 was objectively grave, and it was the most serious conduct the subject of the Amended Complaint (relative to the more anodyne conduct in Complaint 2 and Complaint 3). The [practitioner] has admitted that each of Complaints 2, 3 and 4 constitutes unsatisfactory professional conduct. 12. Without a formal admission, Complaint 4 alone (permutation G) could amount to professional misconduct, but this was not how it was expressly put against the [practitioner] by the HCCC. 13. It is uncontroversial that the circumstances which ground a finding of professional misconduct will also ground a finding of unsatisfactory professional conduct (as "professional misconduct is merely a category of unsatisfactory professional conduct"). However, the reverse is not logically correct – that is, a finding of unsatisfactory conduct will not necessarily ground a finding of professional misconduct. 14. The [practitioner] submits that it is impermissible to reason in the following manner: as it is the most serious complaint, Complaint 4, alone, amounts to professional misconduct; and therefore: (a) Complaint 4 with complaint 3 (this being permutation C) amounts to professional misconduct; or (b) Complaint 4 with complaint 2 (this being permutation D) amounts to professional misconduct. 15. Respectfully, it would be unfair to continue to tack on additional admitted complaints of unsatisfactory professional conduct to an established complaint of professional misconduct, and expose the [practitioner] to further disciplinary consequences which flow from such findings. It is that exposure to double punishment which occasions profound unfairness to the [practitioner]. 16. For the same reason, with respect to a finding of professional misconduct for Complaint 5 based on Complaint 4 (permutation G) the [practitioner] submits that this Tribunal would reject that invitation as being redolent of prosecutorial zeal unless it resiles from a separate finding of unsatisfactory professional conduct for Complaint 4. Conclusion on Complaint 5 17. For those reasons, it is respectfully submitted that only permutation A would result in a finding of professional misconduct against the [practitioner]. 1. To these submissions, in summary, the Commission submits: 1. there is no confusion or unfairness in the way Complaint Five (professional misconduct) has been pleaded in the Amended Complaint; 1. Complaint Five clearly alleges that Complaint Two, Three and Four are relied upon "individually and cumulatively"; 2. Complaint Five correctly states the definition of professional misconduct in s 139E of the National Law: 1. there is no confusion or unfairness in the way Complaint Five has been addressed in the Commission's submissions; 2. there is no impediment to the Tribunal making a finding that proven unsatisfactory professional conduct in Complaints Two, Three and Four is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration to find Complaint Five proven. 1. We accept the Commission's submissions on this issue. The Commission did plead each of Complaints 2, 3 and 4 individually as justifying separate findings of professional misconduct. And in pleading those complaints cumulatively, we do not think it accurate to describe the Commission as "tossing up" seven "rolled up permutations". 2. In any event, it can be seen above, we have found the conduct the subject of each of Complaints Two, Three and Four individually amounts to professional misconduct. 3. And clearly, when Complaints Two, Three and Four are considered cumulatively, Complaint Five established, as is admitted by the practitioner. Conclusion 1. We find Complaint Five established. Complaint Six 1. Complaint Six is that, pursuant to s 144(d) of the National Law, the practitioner has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability or condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of pharmacy. 2. The Particular to Complaint Six is that the practitioner suffers from an impairment, namely AMD. 3. Section 5 of the National Law provides that: 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 (b) for a student, the student's capacity to undertake clinical training— (i) as part of the approved program of study in which the student is enrolled; or (ii) arranged by an education provider. 1. The Commission submits that the evidence shows that the practitioner is currently impaired due to a longstanding alcohol misuse disorder: 1. on 19 November 2016, the practitioner consumed alcohol, around 20 standard drinks at a Christmas party with friends (high range PCA); 2. after losing his licence, the practitioner increased his alcohol consumption and consumed alcohol throughout the day, twice a week; 3. on 3 May 2018, he worked as a hospital pharmacist under the influence of alcohol; 4. on 14 January 2020, he worked as a pharmacist under the influence of alcohol; 5. on 17 January 2020, he again worked as a pharmacist under the influence of alcohol, when he went to a nearby liquor store during his lunch break and drank beer and spirits; 6. on 27 April 2021, he attended a video assessment with psychiatrist Dr Messner. At that time, the practitioner was in Afghanistan, admitted he had misused alcohol, admitted he had worked under the influence of alcohol and claimed he did not intend to drink when he returned to Australia. Dr Messner found that the practitioner suffers from AMD; 7. on 6 December 2022, the practitioner attended a further assessment with Dr Messner. At that time, the practitioner had returned to Australia, was drinking alcohol about 3 times per week, usually 2 to 2½ bottles of wine with family and beer during sporting games. Given the practitioner had not received any treatment and continues to consume alcohol, Dr Messner found that the practitioner continues to suffer an impairment as defined by the National Law, namely AMD; 8. on 16 January 2023, Dr Messner reviewed the practitioner's statement and did not change her view; 9. on 19 December 2022, the practitioner provided a statement admitting that his drinking got to the stage where it became dangerous, claiming he drank 2 to 3 beers with friends for a sporting game and continued to drink a glass of wine with food; 10. the practitioner's oral evidence to the effect that he last drank alcohol 10 days before the hearing, sometimes drinks when watching sporting games, sometimes drinks beer alone, sometimes drinks with friends, and "hardly" drinks at a pub; 11. the practitioner's alcohol misuse disorder is likely to detrimentally affect his capacity to practise pharmacy. 1. The practitioner has admitted Complaint Six. Regardless of that admission, we are satisfied that Complaint Six is established. Complaint Seven 1. Complaint Seven is that the practitioner is not competent within the meaning of s 144(c) of the National Law in that he lacks the mental or physical capacity to practise as a pharmacist. 2. The Particular of Complaint Seven is the Particular to Complaint Six, namely that the practitioner suffers from an impairment, being AMD. 3. Section 139 of the National Law provides: 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. Commission's submissions 1. The Commission submits that the practitioner is not competent to practise in that he lacks the physical or mental capacity to practice as a pharmacist. 2. The Commission submits, and we accept, that the relevant principles include: 1. a finding of impairment may support a finding that a practitioner is not competent to practise: Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]-[169]; 2. whether an impairment leads to the conclusion that the medical practitioner lacks competence will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances: Lindsay at [170]. 1. The Commission submits that the evidence that the practitioner is not currently competent to practice includes: 1. the evidence that the practitioner is currently impaired due to longstanding AMD; 2. Dr Messner's oral evidence to the effect that because the practitioner's impairment is not adequately addressed he is not currently competent. The Commission further submits that Dr Messner: 1. was concerned about the length of the practitioner's impairment, the practitioner's insight into his impairment and no mention in his treating GP records about alcohol management; 2. considered that the practitioner would need to engage with a treating psychologist/psychiatrist before he is considered fit to return to work; 3. did not consider that the practitioner was in remission; 4. acknowledged that the practitioner could be competent but only if he complied with conditions and there was a baseline currently indicating that he was not drinking before he returned to work; 5. agreed that there was nothing to prevent the practitioner seeking advice from his general practitioner, counsellor, psychiatrist, or psychologist about therapy, treatment and medication, if he wished to do so; 1. there are no urinalysis results, treating general practitioner reports or statements from friends or family to demonstrate any period of abstinence; 2. there are no records to demonstrate any trial of anti-alcohol medication; 3. there are no records or reports to demonstrate any engagement in treatment with a drug and alcohol counsellor, addiction specialist or psychiatrist (apart from apparently attending an introductory session with a psychologist in December 2020 following a referral which makes no mention of his alcohol use); 4. the practitioner has a history of refusing or declining treatment and advice: 5. the practitioner has a history of denying his alcohol use: 6. the practitioner has a history of not being frank with his health practitioners, including his new general practitioner Dr Wan. 1. In the circumstances, the Commission submits that: 1. while the practitioner's alcohol misuse disorder remains untreated and he continues to drink, he remains prone to relapse; 2. the practitioner's alcohol use is likely to detrimentally affect his capacity to practise pharmacy because alcohol use impacts on his judgement (his self-assessment about whether he is safe to work and his decision making while working) and his clinical skills (his ability to communicate with patients and staff and safely dispense medication); 3. until the practitioner's alcohol misuse disorder is in established remission, there is a risk that he will jeopardise patient safety through dispensing errors while working under the influence in future; 4. given the practitioner has repeatedly lied to police, his employers, his professional council, his regulator and the Commission to avoid scrutiny regarding his alcohol misuse, the practitioner cannot be trusted to comply with any conditions; 5. given the practitioner has falsified hospital documents and concealed relevant information from the regulators in order to keep his employment and avoid suspension, he may attempt to subvert conditions imposed on his registration to keep working in future; 6. conditions would not protect the public (a condition requiring breathalyzing before every shift would not prevent the practitioner drinking alcohol during breaks). Practitioner's submissions 1. The practitioner's submissions may be summarised as follows. 2. First, there is "no question" that the practitioner suffers from AMD, the practitioner having candidly accepted his diagnosis. The only dispute is whether the Commission has established Complaint Seven, bearing in mind the "heavy Briginshaw onus" which rests on the Commission's "shoulders": Gautam v Health Care Complaints Commission [2021] NSWCA 85. The practitioner submits that the Commission has not discharged that onus. 3. Secondly, the correct approach to be applied by the Tribunal in determining competence under s 144(c) of the National Law was explained in Lindsay by Sackville AJA (with whom Young JA agreed), where his Honour observed: [168] There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine. [169] … there is in my view a difficulty with the approach taken by the Tribunal. Its reasoning does not clearly explain why its finding of impairment against the appellant led to the conclusion that he was not competent to practise medicine. The Tribunal gave extensive reasons for its finding that the appellant suffered from "a relevant impairment", by which it meant a delusional disorder with persecutory and paranoid traits. However, the Tribunal then merely asserted, without further reasons, that by reason of his impairment, the appellant was not competent to practise medicine. [170] The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances. (emphasis added) 1. There are many authorities where, notwithstanding that a practitioner had been found to be suffering from an impairment, the practitioner was found to be competent to practise. Here the practitioner relies on In the matter of Roderick Doyle Motun and the Medical Practice Act 1992 (unreported, Medical Tribunal of NSW, 2 August 2000); Health Care Complaints Commission v Orr [2015] NSWCATOD 124 at [140]; Health Care Complaints Commission v Hallani [2022] NSWCATOD 87 and Health Care Complaints Commission v Stewart [2015] NSWCATOD 145 at [84]. 2. Thirdly, an assessment of competence is not to be undertaken in a vacuum. The Tribunal must have regard to the imposition of conditions, consistent with the overarching objectives of the National Law on the practitioner's registration that could address those objectives before reaching a determination as to that practitioner's competence. 3. Fourthly, under the heading "Paucity of Evidence", the practitioner submits: 1. the particulars for Complaint Seven rely solely on Complaint Six, namely that by reason of his practitioner's AMD, the practitioner is not competent to practise as a pharmacist. The Commission does not purport to rely on any of Complaints One to Five in support of Complaint Seven, and does not assert that the practitioner lacks the sufficient knowledge, clinical skills or communication skills to practise as a pharmacist; 2. "the instant case does not attract any degree of inevitability", unlike Lindsay. The practitioner submits that there is a paucity of evidence which would support a finding that he lacks competence, or alternatively, the evidence relied on by the Commission is so lacking in weight and substance, that the Tribunal would not be satisfied in reaching that conclusion; 3. there is ample evidence that the practitioner is competent to practise if he complies with a rigid set of conditions. After highlighting specific responses of Dr Messner, the practitioner submits that the substance of Dr Messner's opinion as contained in her various reports on the practitioner's competence can be pithily summarised – the practitioner is not incompetent to practise if he returns with a sensible framework for supervision, monitoring, and review of his AMD. Such conditions would also mitigate the risk of the practitioner's relapse into excessive alcohol consumption and assist in his goal of remission through complete abstention. Here, the practitioner notes in particular that: 1. in her report dated 4 May 2021, Dr Messner was asked to determine: "if [the practitioner] is suffering from an impairment that may affect his capacity to practice", and Dr Messner concluded: "When Mr Sayar returns to Australia, he needs to be able to demonstrate to the Council that he is not using alcohol, with EtG testing results to support this. If he wishes to return to work as a Pharmacist, he needs to engage with a psychiatrist with expertise in the management of Alcohol Misuse and to demonstrate his abstinence from Alcohol. He may benefit from working with a psychologist. Mr Sayar should have a regular general practitioner and his medical state be monitored. Initially on [his, sic] return to work, Mr Sayar should work in a pharmacy where there are other pharmacists present. As there has now been a gap since he last worked, Mr Sayar may initially benefit from some supervision of his work". 1. in her second report dated,16 December 2022, Dr Messner was asked squarely "Is Mr Sayar currently competent to practice and if not, explain why?" Dr Messner responded: Mr Sayar presented in a polite and co-operative manner. He did not appear to be under the influence of any substance. He gave a clear history, answering questions appropriately. His affect was reactive and his mood appeared euthymic. His speech was of normal pace and form. His cognitive function appeared to be reasonable. There was nothing in his presentation to suggest he could not practice pharmacy competently, if he were to present as he did for the assessment appointment … (emphasis added) 1. in her final report dated 16 January 2023, Dr Messner did not alter any of the answers provided in her 16 December 2022 report upon providing further evidentiary material. 1. there is ample evidence that the practitioner is competent to practise if he complies with a rigid set of conditions; 2. the substance of Dr Messner's opinion is that the practitioner is not incompetent to practise if he returns with a sensible framework for supervision, monitoring, and review of his AMD; such conditions would also mitigate the risk of the practitioner's relapse into excessive alcohol consumption and assist in his goal of remission through complete abstention; 3. Dr Messner's opinion as to competence is "plainly unreliable", given her unawareness of the definition of competence in the National Law. 1. In conclusion, the practitioner places considerable emphasis on Bolton, noting that even though that practitioner "continue[d] to drink above recommended levels, and that there [was] a high risk of relapse into increased alcohol use", the Tribunal found that the evidence relied on by the Commission fell "short of establishing the extent to which it could be said that [the practitioner's] impairment interferes with his judgment, communication skills and clinical ability". The practitioner notes that the Tribunal in that matter dismissed the complaint that the practitioner was not competent to practise, and submits that that ought to be the conclusion in this matter. Conclusion 1. We accept the practitioner's opening proposition that a finding of impairment does not necessarily lead to a finding of lack of competence, and whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances. 2. As to the nature and likely duration of the impairment, it is common ground that the nature of the impairment is AMD. The evidence before us of the likely duration of the impairment is that the practitioner is not in remission, his AMD was not being currently managed through treatment with a drug and alcohol counsellor, addiction specialist or psychiatrist, and the practitioner was still drinking. 3. As to the kind of practice carried on by the practitioner, we do not understand that the practitioner wishes to practise in the future in situations other than he has practised in the past. This includes dispensing in suburban pharmacies. 4. As to the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, clearly the evidence established, at least in the past, that the practitioner's impairment interfered with his judgment, communication skills and clinical ability. 5. As to other relevant circumstances, the Commission relies on the other matters summarised above. 6. The authorities relied on by the practitioner do not assist him. 7. In Bolton, the practitioner was under the care of a drug and alcohol specialist, unlike the practitioner. 8. Orr is not relevant. In Orr, the practitioner was no longer registered. The Tribunal found that he did have an impairment, and declared that had he been registered his registration would have been cancelled. 9. In Hallani, contrary to the practitioner's submission, the Tribunal did not find the practitioner competent to practise. 10. In Stewart, the practitioner had been abstinent for approximately 20 months. 11. And in Motun, the Medical Tribunal considered whether a medical practitioner was impaired and found that he was suffering from anxiety and depression and paranoid personality traits which conditions were likely to affect his capacity to practise medicine. The Tribunal found the complaint of impairment proved, but in the light of treatment which the doctor was receiving the Medical Tribunal considered that his impairment was not such as to render him incompetent to practise medicine providing that the existing conditions on his registration were continued. 12. In our view, none of these authorities assist the practitioner. 13. We are not persuaded that the practitioner is competent to practise. Accordingly, we find Complaint Seven established. Conclusion re Stage 1 1. For the above reasons, we find each of Complaints One, Two, Three, Four, Five, Six and Seven are established. Protective Orders (Stage 2) 1. For the following reasons, the Commission submits that it is appropriate for the practitioner's registration to be cancelled for four years. 2. First, the Commission submits that cancellation is appropriate under s 149C(1)(a) of the National Law because the practitioner is not competent to practise pharmacy. This is because: 1. the objectives of the national scheme include 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; 2. the practitioner is not competent to practice pharmacy; 3. accordingly, cancellation is required to protect the public. 1. Secondly, the Commission submits that cancellation is appropriate under s 149C(1)(b) of the National Law because the practitioner is guilty of professional misconduct and that: 1. cancellation is required to protect the public by denouncing the seriousness of the practitioner's conduct and indicating to the practitioner, and other pharmacists, that such conduct cannot be condoned; 2. the practical outcome of failing to notify/disclose his charges/convictions/suspension/complaints in 2017 to 2019, was that he deprived the regulator of necessary information to assess risk and take necessary steps to protect the public; 3. the practical outcome of the practitioner's lies and concealment on 18 February 2020 was that the Council relied on inaccurate/incomplete information and allowed him to continue to practice; 4. the practitioner continued to work as a locum pharmacist until he was ultimately suspended in March 2020; 5. cancellation is required to protect the public by maintaining professional standards; 6. working under the influence at two pharmacies, only days apart, seriously jeopardises patient safety and brings the profession into disrepute. 1. Thirdly, the Commission submits that cancellation is appropriate under s 149C(1)(c) of the National Law because the circumstances of the offences render the practitioner unfit in the public interest to practise pharmacy. 2. The Commission submits that the relevant principles include the following: 1. the National Law does not contain a definition of "unfit in the public interest to practise" and this term should be interpreted in light of the objects and guiding principle in the National Law: Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14]; 2. whether a practitioner is unfit in the public interest to practice will require consideration of the nature of the conviction and the circumstances in which the offence was perpetrated: Health Care Complaints Commission v Turner [2016] NSWCATOD 163 at [67]; 3. whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the practitioner in terms of any insight, contrition and remorse: Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51]; 4. whether a practitioner is unfit in the public interest to practice will consider both the direct risk to patients and the indirect risk to the public through damage to their trust in the profession. When health professionals are convicted of serious criminal offences and where there is a close nexus between the criminal conduct and professional role and responsibilities, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continues to practise. The serious nature of the offences and the length of time over which they occurred, may cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a convicted practitioner lacking rehabilitation and insight: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17] - [23]; 5. whether a practitioner is unfit in the public interest to practice must be assessed in light of a holistic inquiry into suitability which takes into account the wider context of the practitioner's conduct, including motivation, insight into the harm caused and any attempts at remediation. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards and public confidence in the health professions: Limboro at [22]. 1. The Commission submits that the circumstances of the offences render the practitioner unfit in the public interest to practise by reference to the following factors set out in AHPRA's Registration Standard: Criminal History. 2. First, the nature and gravity of the offences. 3. Secondly, the relevance of the offences to health practice. Here the Commission submits that the practitioner's conduct is inconsistent with the professional and ethical obligations expected of a registered pharmacist. 4. Thirdly, the period of time since the offences were committed. The Commission submits that while the offences were committed in 2016/2017, they did not come to light because the practitioner did not disclose them to AHPRA; 5. Fourthly, the conviction and sentence imposed. 6. Fifthly, the age of the practitioner. The Commission submits that at the time he committed the offences, the practitioner was 49 years old, a mature adult and well aware of his obligation to comply with his professional obligations and the criminal law. 7. Sixthly, the practitioner's behaviour after committing the offences. The Commission submits that: After police pulled the practitioner over for the first offence and asked him if he had consumed any alcohol, the practitioner said "No. I am on call. I am a Doctor" which was false because he had consumed alcohol and he was not an on call doctor. After police arrested him, the practitioner became argumentative and belligerent. The practitioner yelled at police "I am a Doctor. I am not a normal person. You are lying. Show me the proof" and initially refused to provide a breath sample at Newtown Police station. After being offered a blood sample 8 times, the practitioner said "I am a Doctor; I can find my friend at the hospital to do it. You are all lying. This machine is wrong. After losing his licence, the practitioner increased his alcohol consumption. Only 26 days after the practitioner's severity appeal for the first offence was dismissed, he then committed the second offence by driving while disqualified, doing a U-turn to avoid police testing. 1. Seventhly, the practitioner's explanation. Here the Commission submits that, when arrested for the first offence, the practitioner denied drinking, which was false. When arrested for the second offence, the practitioner claimed he needed to return the hospital medicine cabinet keys, but that does not justify why he drove while disqualified. 2. In the circumstances, the Commission seeks a cancellation order with a four year non-review period. The practitioner's submissions 1. The practitioner submits that, even if the Tribunal finds Complaint Seven established, the appropriate protective order is that the practitioner be permitted to practise under conditions as he continues to manage his AMD. He submits that suspension or cancellation of a practitioner's registration does not automatically flow from a finding of professional misconduct, the Tribunal's powers under s 149C(1) of the National Law being discretionary. 2. The practitioner provided 25 pages of very detailed submissions on the appropriate protective order prepared by his counsel. 3. In Section A of his Stage 2 submissions the practitioner's counsel submits that: 2. The [Commission] has invited this Tribunal to cancel the [practitioner]'s registration and impose a non-review period of four (4) years. The Amended Application seeks to plead pathways in the alternative to cancellation of the [practitioner]'s registration, namely, National Law ss 149C(1)(a), (b) and (c). It is submitted that each of those pathways must be rejected. 3. At the outset, it is important to observe that National Law s 149C(1) is disjunctive. This is self-evident because of the use of the contraction: "or" to signify alternative disciplinary findings (and not "and", or "and/or"). The National Law does not permit this Tribunal to suspend or cancel the [practitioner's] registration on the collective basis that all three pathways are said to have enlivened. 4. The [practitioner] contends, even if the Tribunal finds Complaint 7 established, that the appropriate disposition in all the circumstances, would be that the [practitioner] be permitted to return to conditional practise as he continues to manage his AMD. 1. In Section B of his Stage 2 submissions the practitioner's counsel addresses the practitioner's credibility. In summary he: 1. submits that global findings of credit are to be eschewed; 2. notes the practitioner's non-English speaking background and cultural differences; 3. addresses the practitioner's memory and recall submitting that it would be unfair and erroneous to treat infelicities in the practitioner's memory as being probative of dishonesty; 4. addresses matters relating to Dr Wan, being critical of the Commission's failure to call Dr Wan as a witness. The practitioner submits that there cannot be any meaningful, let alone sensible, adverse conclusion drawn from the limited and untested evidence found in the new patient intake form and in Dr Wan's clinical notes; 5. addresses the remarks made by the practitioner during his sentencing hearings. 1. In Section C of his Stage 2 submissions the practitioner's counsel addresses the practitioner's AMD. In summary he: 1. accepts that Dr Messner concluded that the practitioner was suffering from mild to severe AMD, and is not in remission; 2. sets out a timeline of the practitioner's alcohol consumption, noting in particular that the practitioner has demonstrated a capacity for abstaining from alcohol, when he was in both Afghanistan for a year; and his return from Afghanistan, for two weeks in quarantine in Melbourne; 3. submits that, while in the immediate period preceding this hearing, the practitioner drank alcohol, but that this does not controvert the proposition that the practitioner has reduced the frequency and amount of his alcohol consumption. 4. submits that there no evidence to suggest that the practitioner has suffered a recurrence of episodes of excessive alcohol consumption which previously led to blackouts (for example, by way of an ambulance record, or statement from other witnesses). 5. submits that the practitioner has reduced the frequency and amount of his consumption towards early remission, with an overall aim of achieving abstinence, and sustained remission. 6. submits that, aside from anxiety and depression, there are no comorbidities such as a persistent personality disorder or chronic substance abuse issue which would militate against successful engagement in the treatment which the practitioner is presently seeking; 7. addresses the Commission's submission that the practitioner has not engaged in any treatment for his AMD. The practitioner submits that the Commission's submission is based on a myopic definition of the word "treatment", and ignores the very real steps taken by the practitioner that may not, strictly, be captured by that definition; 8. submits that in pressing a submission that the practitioner has done little by way of rehabilitation, the Commission has ignored that the practitioner has sought the support of close friends, and family who will hold him accountable for his actions, openly told his family about his condition, and many were present before the Tribunal to give him their support, in contrast to the Council hearings; 9. addresses the practitioner's appreciation and insight into the wrongfulness of his conduct. 1. In Section D of his Stage 2 submissions the practitioner's counsel addresses the appropriate protective orders to be imposed. After seeing out the relevant legal principles: 1. submits that onerous conditions within the ambit of s 150(1)(b) of the National Law on the practitioner's registration would minimise the unacceptable risk to the public asserted to be posed by the Commission; 2. submits that the public would be served by the return to work of an experienced and competent pharmacist; and the practitioner will be afforded an opportunity to earn the trust that he lost through his misconduct; 1. The practitioner submits that the Tribunal should make the following protective orders: 1. lifting the practitioner's suspension, or alternatively there being a suspension for a short duration, on the conditions set out in Attachment A to these reasons; alternatively, 2. the practitioner's registration is suspended for a period of six alternatively 12 months, as well as submit to the conditions on his registration set out in Attachment A; alternatively, 3. the practitioner's registration is cancelled, and not be permitted to apply for review for a period of six months alternatively 12 months. 1. For the lengthy reasons set out at [83] to [94] of his submissions, the practitioner's counsel submits that the Conditions set out in Attachment A would address the risks identified by the Commission. 2. In conclusion, the practitioner submits that: 1. there is no principled clinical reason why the Commission has sought a non-review period of four years; 2. if the Tribunal rejects the practitioner's principal submission and proceeds to cancel the practitioner's registration, the appropriate disposition would be a short non-review period of about six months. Stage 2 Consideration 1. We commence with a statement of the relevant principles. Relevant principles to be applied 1. The relevant principles in determining a protective order have been stated on many occasions including in Health Care Complaints Commission v Kaye (No 2) [2022] NSWCATOD 79 at [57] to [66]. We paraphrase those principles as follows: 1. the protection of public safety and health is paramount; National Law, s 3A; 2. 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); 3. the Tribunal must consider the maintenance 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]; 4. protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; 5. the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340; 6. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; 7. the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]; 1. In addition, no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to). Conclusion 1. To paraphrase the Tribunal in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 1. 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: Azzam at [92]; Prakash at [91]. 2. 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: Azzam at [93]; Prakash at [91]; 3. 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: Azzam at [94]; 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]; 4. 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: Azzam at [94]; Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69]. These include: 1. 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; 2. the unacceptability of certain kinds of conduct; and 3. the maintenance of confidence in the high standards of the profession. 1. We have considered the practitioner's two statements, reflected on his evidence in cross examination, noted his two character references and carefully considered the detailed submissions of his counsel. Notwithstanding all this material, we consider that there must be an order cancelling the practitioner's registration. In our view, the practitioner's professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. His conduct includes driving with a high range PCA; driving while disqualified; failing to notify the National Board that he was charged with driving with a high range PCA and driving while disqualified; failing to disclose changes in his criminal history while renewing his registration; working while under the influence of alcohol; providing Persons A and B from Raven Recruitment with forged Discharge and Summary Results; giving false and misleading evidence to the Council and giving false and misleading evidence to the Commission. During these events, which were not isolated events, the practitioner took elaborate steps to avoid detection and deceived the relevant authorities. 2. These are matters when considered cumulatively warrant an order of cancellation of the practitioner's registration. Any order short of deregistration would be an inappropriate and inadequate response to the seriousness of his misconduct. 3. 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. In addition, in our view seeking a protective order that he be permitted to practise subject to conditions demonstrates a considerable lack of insight. 4. We note that the practitioner invited the Tribunal to take into account, as a discretionary factor "time-served" by the practitioner on the "Council-imposed" suspension. Here we accept that Commission's submission that there is a difference between a suspension imposed by Council and a suspension or cancellation imposed by the Tribunal. The Commission correctly submits that: 1. the Council delegates may suspend if they are satisfied based on the evidence available at that time that it is appropriate to do so for the protection of the health or safety of any person or persons or if satisfied the action is otherwise in the public interest; 2. the Tribunal may suspend/cancel based on the evidence available at that time if the Tribunal is satisfied that the subject-matter of the complaint is proven, noting that protection of public safety and health is paramount; 3. the fact that the Council delegates exercised their power to suspend the practitioner's registration before the hearing does not constrain the Tribunal's own power to suspend/cancel after the hearing. 1. We reject the practitioner's submission to the effect that any non-review period must be shortened because he has already served a suspension because it does not reflect the purpose of the disciplinary powers of the Tribunal. See Health Care Complaints Commission v Khan (No. 2) [2019] NSWCATOD 37 where the Tribunal stated at [49]: The Tribunal is cognizant of the fact that the respondent has not been practising as a medical practitioner since the date of his suspension and departure from Australia in July 2016. The Tribunal has given consideration to whether such period should be taken into account in determining the period of time in which the respondent will be prohibited from reapplying as a medical practitioner. The Tribunal considers that, unlike sentences for crimes where sentences may be backdated to reduce the penalty, the Tribunal's functions are entirely different. They are directed to protecting the public and the Tribunal considers that aspect prospectively, not retrospectively. Accordingly the Tribunal finds that it should not countenance the period of suspension which has already elapsed. The Tribunal's conclusions are in accordance with the observations of the Tribunal in Health Care Complaints Commission v Karimi [2018] NSWCATOD 197. 1. Nor do we accept the practitioner's submission that there has been such a delay in bringing the Complaint that the period of deregistration should be less. 2. Balancing all the evidence before us, 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 three years and six months from the date of these reasons. 3. Finally, we note that we would have come to the same conclusion regardless of whether or not Complaint Seven was established. The admitted conduct the subject of Complaints One to Six is cumulatively so serious that a period of cancellation is appropriate. Costs 1. This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282. 2. In his written submissions the practitioner submitted that if the Tribunal finds Complaint Seven proved, he would not resist a costs order that he pay the Commission's costs as agreed, or in failing agreement, as assessed under the provisions of the Legal Practitioner Uniform Law Application Act 2014 (NSW). 3. We see no disentitling conduct by the Commission to warrant a departure from the general rule, and the practitioner made no submissions to that effect. In the circumstances we propose to order the practitioner to pay the Commission's costs as agreed or as assessed. Conclusion 1. The Tribunal orders: 1. Complaint One, namely that pursuant to s 144(a) of the Health Practitioner Regulation National Law (NSW), the respondent has been convicted of criminal offences in New South Wales, is established. 2. Complaint Two, namely that the respondent is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), in that he contravened s 130(1) of the National Law, is established. 3. Complaint Three, namely that the respondent is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(b) of the Health Practitioner Regulation National Law (NSW), in that he contravened s 109 of the Health Practitioner Regulation National Law (NSW), is established. 4. Complaint Four, namely that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW), in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy, is established. 5. Complaint Five, namely that the respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW), is established. 6. Complaint Six, namely that pursuant to s 144 (d) of the Health Practitioner Regulation National Law (NSW), the respondent has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability or condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the respondent's capacity to practise the profession of pharmacy, is established. 7. Complaint Seven, namely that the respondent is not competent within the meaning of s 144(c) of the Health Practitioner Regulation National Law (NSW), in that the respondent lacks the mental or physical capacity to practise as a pharmacist, is established. 8. Pursuant to s 149C(1)(a), (b) and (c) of the Health Practitioner Regulation National Law (NSW) the registration of the respondent as a pharmacist is cancelled. 9. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), the respondent may not make an application to review order (8) for a period of three years and six months from the date of these orders. 10. The respondent is to pay the applicant's costs as agreed or as assessed. ********** Attachment A (a) The Respondent be permitted to return to conditional practice as a pharmacist; (b) The Respondent is: (i) To only work in a position as a pharmacist approved by the Pharmacy Council of NSW; (A) The Respondent must not work as the pharmacist-in-charge; and (B) The Respondent must not work without the supervision of another pharmacist. (ii) To obtain the approval of the Pharmacy Council of NSW prior to changing the nature or place of practice. (iii) To authorise the Pharmacy Council of NSW to notify his employer/s of any issues arising in relation to compliance with any of these conditions. (c) The Respondent is to attend consultations with his general practitioner, psychologist and psychiatrist of his own choosing, and: (i) The Respondent is to take any prescribed medications, which include disulfiram, as clinically directed. (ii) The Respondent agrees to authorise the release of any report commissioned by the Panel or the Council, obtained in compliance with these conditions to his treating psychiatrist, psychologist and general practitioner. (iii) The Respondent authorises his general practitioner, psychologist and psychiatrist to provide a report to the Council of any failure to attend for treatment, failure to comply with treatment or termination of any treatment. (iv) The Respondent must notify the Council of any change to his treating practitioners within seven (7) days of the change in writing. (d) The Respondent is to return a copy of his full conditions to the Council signed by his employer within seven days of the commencement of such employment; (e) The Respondent must abstain from alcohol in the 24-hours prior to undertaking work as a pharmacist. (i) Before undertaking any work as a pharmacist, to successfully pass a breathalyser test by returning a reading of 0.00 BAC, in accordance with the Council's protocol for breath testing. This is a critical compliance condition. (A) The breath test must be undertaken and result recorded no more than 30 minutes prior to the commencement of work; (B) Following the initial breath-test, if the Respondent takes a break that exceeds 30 minutes in length, an additional breath test will be required and result recorded before duties may be recommenced; (C) A breath test will be required and recorded after seeing the last patient of each working day; and (D) The Respondent authorises his supervisor to provide a log book of his breath test results to the Council on demand. (f) The Respondent must continue to attend Alcoholics Anonymous meetings every fortnight, and to self-report to the Council on the regularity of the meetings and on his program on a three-monthly basis; (g) The Respondent must attend for carbohydrate deficient transferrin liver function testing as and when required by the Council; (h) The Respondent is to attend for review by a Council appointed psychiatrist initially on a three-monthly basis or as otherwise directed by the Council, at the Council's expense; and (i) The Respondent is inducted into the Impaired Registrants' Panel of the Pharmacy Council of NSW. 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: 15 June 2023