Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Osman [2023] NSWCATOD 177 Hearing dates: 8, 9 November 2023 Date of orders: 04 December 2023 Decision date: 04 December 2023 Jurisdiction: Occupational Division Before: S Dunn, Senior Member M Cross, Senior Member T Melocco, Senior Member J Sillince, General Member Decision: 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (National Law) the registration of Ahmed Osman (Respondent) as a pharmacist is cancelled. 2. Pursuant to s 149C(7) the Respondent may not apply for a review of Order 1 for a period of 6 months from the date of these orders. 3. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the Health Care Complaints Commission's costs as agreed or assessed. 4. Pursuant to ss 64(1)(b) and 64(1)(d) of the Civil and Administrative Tribunal Act, the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or disclosed to anyone other than the Applicant, the Respondent, their legal representatives and the Tribunal. Catchwords: HEALTH – professional registration and discipline – pharmacist – supply of drugs to unknown persons without a prescription outside of pharmacy setting under threats of violence – unsatisfactory professional conduct – professional misconduct – appropriate protective orders. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Therapeutic Goods Act 1989 (Commonwealth) Therapeutic Goods (Poisons Standard—February 2020) Instrument 2020 (Commonwealth) Therapeutic Goods (Poisons Standard—February 2021) Instrument 2021 (Commonwealth) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Gayed v Walton [1997] NSWCA 121 Health Care Complaints Commission v Brush (No 2) [2015] NSWCATOD 154 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 Health Care Complaints Commission v Khan (No 2) [2019] NSWCATOD 37 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 Health Care Complaints Commission v Moses (No 2) [2019] NSWCATOD 190 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Tran [2021] NSWCATOD 82 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ahmed Osman (Respondent) Representation: Counsel G James KC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) One Group Legal (Respondent) File Number(s): 2023/00231453 Publication restriction: Pursuant to ss 64(1)(b) and 64(1)(d) of the Civil and Administrative Tribunal Act, the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or disclosed to anyone other than the Applicant, the Respondent, their legal representatives and the Tribunal. Further non-publication orders were made on 29 November 2023 and remain in force at the time of publication of these reasons. REASONS FOR DECISION Introduction 1. This is an application to the Tribunal by the Health Care Complaints Commission (HCCC) for disciplinary findings and orders against the Respondent, Ahmed Osman, following a determination by the Director of Proceedings of the HCCC to prosecute Complaints against Mr Osman. Mr Osman is registered under the Health Practitioner National Law (National Law) as a pharmacist. On 11 March 2022 his registration was suspended by the Pharmacy Council of NSW (Council). 2. The Complaints against Mr Osman in general terms are that he is guilty of unsatisfactory professional conduct under s 139B of the National Law and professional misconduct under s 139E of the National Law. The HCCC alleges that Mr Osman inappropriately supplied drugs of dependence and addiction to unknown persons without a prescription, outside of a pharmacy setting and in circumstances where he knew or ought to have known those drugs would be distributed to members of the general public. The HCCC also alleges he took steps to avoid detection including by not retaining delivery slips for medication, creating false dispensing records and retrospectively cancelling transactions. 3. Mr Osman admits he is guilty of unsatisfactory professional conduct but says that he supplied drugs and took steps to avoid detection under threats of violence to himself and his family and so as to avoid exposing himself or his family to extreme harm or death. He submits that, in those circumstances, his conduct does not amount to professional misconduct. 4. The HCCC bears the onus of proof of the Complaints. The standard of proof in disciplinary proceedings is on the balance of probabilities with a sufficient degree of certainty having regard to the seriousness of the allegations made, which is recognised as the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41; Gautam v Health Care Complaints Commission [2021] NSWCA 85; Health Care Complaints Commission v McAlpine [2022] NSWCATOD 92 at [24]. 5. If the Tribunal finds the Complaint of professional misconduct against Mr Osman to have been proved the HCCC seeks an order under s 149C(1)(b) of the National Law cancelling Mr Osman's registration with a non-review period of one to two years. 6. Mr Osman submits that, if the Tribunal finds he is guilty of professional misconduct, an order cancelling his registration would be unduly punitive and that, at most, an order should be made suspending his registration for a period with conditions to be imposed on his practice at the end of the suspension period. 7. In these reasons the Applicant is referred to as the Applicant or the HCCC and the Respondent is referred to as the Respondent, the practitioner or Mr Osman. Materials before the Tribunal 1. The HCCC relied on: 1. a bundle of documents filed by the HCCC on 25 October 2023 (Exhibit A1); 2. a supplementary bundle of documents filed by the HCCC on 6 November 2023 (Exhibit A2); 3. an article in the Australian Journal of Pharmacy entitled "Blatant Abuse of Pharmacist Position" (Exhibit A3); and 4. a handwritten statement signed by the Respondent (Exhibit A4). 1. The Respondent relied upon: 1. A reply to the Complaint (Exhibit R1); 2. An affidavit of Mr Osman sworn 1 November 2023 (Exhibit R2); and 3. A letter dated 1 November 2023 from Ms Zeinab Allaw, a forensic psychologist (Exhibit R3) 1. Mr Osman and Ms Allaw gave evidence and were cross-examined. Relevant Legislation National Law 1. It is convenient to set out below those provisions of the National Law relevant to this application. 2. Section 3 of the National Law provides, relevantly: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; … … (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; … 1. Section 3A of the National Law, which is an additional provision for NSW, relevantly provides: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3B of the National Law, which is also an additional provision for NSW, relevantly provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. A "NSW provision" is defined in s 5 of the National Law as: 5 Definitions (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. 1. Section 139B of the National Law, which is an additional provision for NSW, relevantly provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Section 139E of the National Law, which is an additional provision for NSW, provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Section 144, which is an additional provision for NSW, sets out the grounds for complaint which may be made against health practitioners, including: 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. Section 149, which is an additional provision for NSW, provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if— (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal. 1. Section 149C, which is an additional provision for NSW, (which is in the same Subdivision as s 149) provides: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied— ... (b) the practitioner is guilty of professional misconduct; … Other Relevant Legislation: PTGA and PTGR 1. In Australia, a national classification scheme, "scheduling", operates to control how medicines and poisons are made available to the public. Under that scheme medicines and poisons are classified into one of nine schedules according to the level of regulatory control over their availability that is assessed as being required to protect public health and safety. The schedules are published in the Poisons Standard, a legislative instrument made under s 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth). In NSW, the Poisons Standard is given effect by s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA). 2. The substances the subject of the Complaint are either "prescribed restricted substances" in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) (Schedule 4D drugs) or "drugs of addiction" as defined in s 4 of the PTGA as those listed in Schedule 8 of the Poisons Standard, which are commonly referred to as "Schedule 8 drugs". The relevant Poisons Standard for the purposes of the Complaint are the Therapeutic Goods (Poisons Standard—February 2020) Instrument 2020 (Commonwealth) and the Therapeutic Goods (Poisons Standard—February 2021) Instrument 2021 (Commonwealth). 3. In NSW, the PTGA and the PTGR regulate the packaging, labelling, possession, storage, prescription and supply of Schedule 4D and Schedule 8 drugs. The PTGA and PTGR restrict the possession and supply of Schedule 4D drugs and Schedule 8 drugs and impose record-keeping requirements on pharmacists in relation to those drugs, in particular under clause 176 and 177 of the PTGR. The Complaints 1. The Complaints against Mr Osman are as follows. 2. Complaint One is that Mr Osman is guilty of unsatisfactory professional conduct under s 139 B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. 3. The Particulars of Complaint One are: 1. Between 15 January 2021 and 11 February 2022 the practitioner was unable to account for S4D and S8 drugs as outlined in Schedule A, attached to this Complaint, in circumstances where as a proprietor of the Pharmacy, he was responsible for the accurate recording and storage of all drugs. 2. Between 15 January 2021 and 11 February 2022 the practitioner inappropriately supplied S4D and S8 drugs to unknown persons a. without a prescription; b. in an unprofessional manner in circumstances where the supply occurred outside of a pharmacy setting; and c. in circumstances where he knew or ought to have known that those drugs would be distributed to members of the general public, in quantities up to those listed in Schedule A. 3. Between 15 January 2021 and 11 February 2022 the practitioner sought to avoid detection by his co-proprietor of, and staff at, the Pharmacy of the supply of S4D and S8 drugs without a prescription as outlined in Schedule A when he a. made retrospective entries in the drug register to reconcile wholesale receipts; b. did not retain delivery slips to avoid having to update the drug register; and c. entered diverted drugs into the computerised dispensing system and recorded that the prescription was provided, when one was not, in order to ensure the reconciliation of the drug register stock levels. 4. Between 3 February 2022 and 10 February 2022 the practitioner sought to avoid detection by the [Pharmaceutical Regulatory Unit] when he modified 204 transactions, creating retrospective cancelled transactions relating to the dispensing of prescriptions for S8 drugs as outlined in Schedule B attached to this complaint for the period 11 May 2021 to 30 January 2022. 5. Between 19 August 2021 and 11 February 2022 the practitioner failed to record both the receipt and supply of S8 drugs on the premises of the Pharmacy, namely Oxycontin 40mg, Oxynorm 10mg, and Oxynorm 20mg, contrary to clause 176 (2) of the Poisons and Therapeutic Goods Regulation 2008 ('the Regulation'). 6. Between 25 February 2021 and 4 February 2022 the practitioner made false and/or misleading entries in the dispensing records for S8 drugs as outlined in Schedule C attached to this Complaint, when he stated that there was a prescription when there was none, contrary to clause 177 of the Regulation. 7. On 11 February 2022 the practitioner failed to make the documents and records, including the drug registers and the retained S8 prescription duplicates, available for inspection on demand by an inspector from the PRU, contrary to clause 176 (3) of the Regulation. 1. Schedules A, B and C to the Complaint are annexed to these reasons. 2. The references in the Complaint to S4D drugs are to those drugs defined in clause 61 and Appendix D of the PTGR. They are referred to in these reasons as Schedule 4D drugs. The references in the Complaint to S8 drugs are to drugs of addiction defined in s 4 of the PTGA as specified in Schedule 8 of the Poisons Standard. They are referred to in these reasons as Schedule 8 drugs. 3. Complaint Two is that Mr Osman is guilty of professional misconduct under s 139E of the National Law in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration. 4. The Particulars of Complaint Two are: 1. The particulars of Complaint One justify a finding of professional misconduct. 2. When two or more of the particulars are taken together, a finding of professional misconduct is justified. Mr Osman's Reply 1. Mr Osman filed a Reply to the Complaint. In his reply he stated his position as follows: The Respondent replies as follows: A. The Respondent admits the matters contained in the Background to Complaint One. B. In response to the Particulars of Complaint One, the Respondent replies as follows: 1. The Respondent admits paragraph one, however, in relation to Schedule A, the Respondent felt compelled to conceal the distribution of the drugs in order to protect himself and his family. 2. In response to paragraph 2, the Respondent: i. Does not admit the matters stated in the header and says further that the Respondent did supply S4D and S8 drugs to unknown persons contrary to law, however, did so in circumstances of exculpatory duress. ii. Admits paragraphs 2(a) and 2(b) iii. Admits paragraph 2(c) and further relies on the matters deposed at paragraph B(1) of this reply. 3. The Respondent admits paragraph 3, however the respondent further states that the Respondent believed it was necessary to engage in this conduct to ensure his conduct went undetected by others in order to prevent exposing himself and his family to a risk of extreme harm or death. 4. The Respondent admits paragraph 4, but denies that it was to avoid detection of the PRU and further says that they were cancelled so that the PRU would not contact the patients in relation to this matter, thereby involving the patient in the problem that the Respondent was confronted by. 5. The Respondent admits paragraph 5. 6. The Respondent admits paragraph 6. 7. The Respondent admits paragraph 7. Complaint Two In response to the whole of the complaint two, the Respondent. A. Does not admit the complaint. B. Says further that regard should be had to the Respondent's genuine belief that he and/or his family were exposed to an extreme risk of harm or death. In this context, this does not amount to unsatisfactory professional conduct of a sufficiently serious nature to justify cancellation of the practitioner registration. This is particularly so in circumstances where: a. The Respondent was subjected to threats that unless he carried out the demands, and there were no steps the Respondent could take to prevent the unknown persons from acting on their threats. b. As part of the practitioners educational, practical and post admission training the practitioner had never received any training regarding how to deal with threats by organise criminal syndicates and was not properly equipped to deal with same. c. The profession does not provide any avenues for assisting practitioners in the Respondent's position nor does it provide any training to practitioners as to how best to deal with threats by organised criminal syndicates. d. The Respondent never received any money for the demanded drugs and rather paid for all drugs at a cost to him of approximately $50,000.00. e. The Tribunal would be satisfied that having regard to the Respondent's prior good character and record as a pharmacist that the conduct that the practitioner engaged in was out of character, and not engaged in voluntarily such that if the conduct cannot be excused without punishment any punishment should be such that the punishment achieves the following outcomes: i. Training of the respondent so that he is able to know how to deal with such situations if he were to be confronted with a same or similar situation in the future. ii. Ensuring the safety of the community (for example imposing a condition that the respondent be restricted to supervised practice for a period that the Tribunal determines reasonable) 1. Mr Osman's counsel clarified at the hearing that the reference at paragraph 2 of Mr Osman's Reply to not admitting the "matters stated in the header", was intended to convey that Mr Osman did not admit that he "inappropriately" supplied drugs. He withdrew that position at the hearing. Agreed Facts 1. The parties filed a Statement of Agreed Facts (Exhibit A5) and an amended Statement of Agreed Facts (Exhibit A6) (amending Exhibit A5 in minor respects after Mr Osman's evidence) and we make the following findings of fact which are based on the agreed facts set out in Exhibit A6 and the documents in evidence before the Tribunal which support our findings. Mr Osman 1. In or around 2011, Mr Osman obtained a Bachelor of Pharmacy from Charles Darwin University. 2. On 14 February 2012, he was first registered as a pharmacist. 3. From 2012 to 2016, Mr Osman worked in various pharmacies across Sydney. 4. From 2014, Mr Osman was aware of the Pharmacy Board of Australia Code of Conduct for Pharmacists. The Pharmacy 1. In around November 2016, Mr Osman commenced working full time as a pharmacist at a pharmacy in Beverly Hills (the Pharmacy). At this time, Mr Osman' sister was the sole proprietor of the Pharmacy. 2. In around July 2020, Mr Osman acquired a 10% shareholding in the Pharmacy and became a co-proprietor of the Pharmacy. He worked full time as a pharmacist and co-proprietor at the Pharmacy. At that time, Mr Osman's sister worked approximately 1 day per week as a pharmacist and co-proprietor at the Pharmacy. 3. Mr Osman knew that Schedule 4D drugs include anti-anxiety drugs which have a risk of dependence and cannot be dispensed without a prescription. He knew that Schedule 4D drugs are prescribed restricted substances and include Phentermine, Zolpidem, Clonazepam, Diazepam and Tramadol. Mr Osman knew that a pharmacist: 1. may only supply Schedule 4D drugs with a prescription; 2. must endorse and keep Schedule 4D prescriptions; 3. must make and keep a record of the supply of Schedule 4D drugs; 4. must not supply any Schedule 4D drugs in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard; 5. must immediately report the loss or theft of Schedule 4D drugs. 1. Mr Osman knew that Schedule 8 drugs include opioids and drugs of dependence which cannot be dispensed without a prescription and are subject to a higher level of control. Mr Osman knew that Schedule 8 drugs are drugs of addiction including Oxycodone, Alprazolam and Fentanyl. Mr Osman knew that a pharmacist: 1. is only authorised to possess Schedule 8 drugs at the premises of, and in the course of carrying on a pharmacy business; 2. must store Schedule 8 drugs in a separate safe; 3. may only supply Schedule 8 drugs with a verified prescription; 4. must not supply any Schedule 8 drug in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard; 5. must endorse and keep Schedule 8 prescriptions; 6. must keep a separate register (a drug register) recording the quantity of Schedule 8 drugs received and supplied and the prescription details; 7. must make an accurate stock inventory of all Schedule 8 drugs on hand each March and September; 8. must immediately report the loss or theft of a drug register or a Schedule 8 drug; 9. must not make any false or misleading entries in Schedule 8 records and registers; and 10. must keep the Schedule 8 drug records and registers at the pharmacy available for inspection on demand by a police officer or an inspector. 2021 1. Between 15 January 2021 and 11 February 2022, Mr Osman was unable to account for the following approximate quantities of Schedule 4D and Schedule 8 drugs in circumstances where, as a proprietor of the Pharmacy, he was responsible for the accurate recording and storage of all drugs: 1. 7660 capsules of Oxynorm 10mg (Oxycodone, Schedule 8); 2. 3860 capsules of Oxynorm 20mg (Oxycodone, Schedule 8); 3. 3960 capsules of Duromine/Metermine 40mg (Phentermine, Schedule 4D); 4. 3412 tablets of Dormizol/Stilnox 10mg (Zolpidem, Schedule 4D); 5. 2600 tablets of Paxam 2mg (Clonazepam, Schedule 4D); 6. 22045 tablets of Endone 5 mg (Oxycodone, Schedule 8); 7. 4060 tablets of Oxycontin 40mg (Oxycodone, Schedule 8); 8. 3416 tablets of Oxycontin 80mg (Oxycodone, Schedule 8); 9. 57895 tablets of Valium/Antenex 5mg (Diazepam, Schedule 4D); 10. 8640 tablets of Tramal/Tamedo/Zydol 200mg (Tramadol, Schedule 4D); 11. 1200 tablets of Kalma/Alprax 2mg (Alprazolam, Schedule 8); 12. 20 patches of Durogesic 100mcg/hour (Fentanyl, Schedule 8); 13. 15 patches of Durogesic 50mcg/hour (Fentanyl, Schedule 8); and 14. 5 patches of Durogesic 75mcg/hour (Fentanyl, Schedule 8). 1. Between 15 January 2021 and 11 February 2022 Mr Osman inappropriately supplied Schedule 4D and Schedule 8 drugs to unknown persons in quantities up to those listed in Schedule A of the Complaint, except Paxam 2mg: 1. without a prescription; 2. in an unprofessional manner in circumstances where the supply occurred outside of a pharmacy setting; and 3. in circumstances where he knew or ought to have known that those drugs would be distributed to members of the general public. 1. Mr Osman supplied Schedule 4D and Schedule 8 drugs about once a month from about February 2020 until about February 2022 on about 20 occasions to unidentified person/s without a prescription in increasing quantities, never less than 50 boxes, and did not inform any person of the activity during that time. Mr Osman knew that the medication carried a high street value. He knew that the medication had a high potential for misuse and abuse. He did not contact police or the Pharmaceutical Regulatory Unit (PRU) and did not seek guidance from any pharmacist colleagues, any psychologist or any lawyer during that time. He did not keep any records of the Schedule 4D and Schedule 8 drugs that were supplied on these occasions. 2. Between 15 January 2021 and 11 February 2022 Mr Osman sought to avoid detection by his co-proprietor of, and staff at, the Pharmacy of the supply of Schedule 4D and Schedule 8 drugs without a prescription as outlined in Schedule A of the Complaint when he: 1. made retrospective entries in the drug register to reconcile wholesale receipts; 2. did not retain delivery slips to avoid having to update the drug register; and 3. entered drugs he had supplied to the unidentified persons into the computerised dispensing system and recorded that a prescription was provided, when one was not, in order to ensure the reconciliation of the drug register stock levels. 1. Between 25 February 2021 and 4 February 2022 Mr Osman made false and/or misleading entries in the dispensing records for the following Schedule 8 drugs when he stated that there was a prescription when there was not, contrary to clause 177 of the PTGR: 1. Alprazolam (Schedule 8) 2mg, 15 prescriptions missing, approximately 1,200 tablets unaccounted for; 2. Durogesic (Fentanyl, Schedule 8) 50mch/hour, 75mcg/hour and 100mcg/hour, 8 prescriptions missing, approximately 40 patches unaccounted for; 3. Oxynorm (Oxycodone, Schedule 8)10mg 67 prescriptions missing, approximately 1480 capsules unaccounted for; 4. Oxynorm (Oxycodone, Schedule 8) 20mg, 4 prescriptions missing, approximately 280 capsules unaccounted for; 5. Oxycontin (Oxycodone, Schedule 8) 40mg, 8 prescriptions missing, approximately 280 tablets unaccounted for; 6. Endone (Oxycodone, Schedule 8) 5mg, 103 prescriptions missing, approximately 3,952 tablets unaccounted for; and 7. Oxycontin (Oxycodone, Schedule 8) 80mg, 1 prescription missing, approximately 28 tablets unaccounted for. 1. Between 19 August 2021 and 11 February 2022 Mr Osman failed to record both the receipt and supply of Schedule 8 drugs on the premises of the Pharmacy, namely Oxycontin 40mg, Oxynorm 10mg, and Oxynorm 20mg (Oxycodone), contrary to clause 176(2) of the PTGR. 2. On 6 December 2021, Mr Osman emailed the PRU information which had been requested by the PRU (a retained prescription duplicate for Quetiapine (Seroquel) for a particular patient). 3. On 6 December 2021 and 10 December 2021, Mr Osman received emails from the PRU requesting a retained prescription duplicate for that patient for Oxycodone which appeared to have been dispensed on 19 November 2021. 4. On 13 December 2021, the practitioner emailed the PRU regarding the retained prescription for that patient stating, "As for Oxycodone, that was a price enquiry regarding the private price, it was not supplied to him". That was not a truthful response because there was a record of dispensing Endone (Oxycodone) to that patient on 19 November 2021 which Mr Osman subsequently deleted. 2022 1. On 2 February 2022, the PRU telephoned the pharmacist in charge at the Pharmacy, (Person A) requesting retained prescription duplicates for the supply of 28 Oxycontin 80mg tablets on 29 September 2021 and 20 Endone 5mg tablets on 1 October 2021 to another patient (second patient) on prescriptions purportedly issued by a doctor. The PRU then sent an email to the Pharmacy inbox requesting the retained prescription duplicates. 2. Between 3 February 2022 and 10 February 2022, Mr Osman modified 204 transactions, retrospectively cancelling transactions relating to the dispensing of prescriptions for the following Schedule 8 drugs for the period 11 May 2021 to 30 January 2022: 1. Endone (Oxycodone) 5mg - 115 cancelled dispensing transactions, approximately 6926 tablets unaccounted for; 2. Oxynorm (Oxycodone) 10mg – 34 cancelled dispensing transactions, approximately 1360 capsules unaccounted for; 3. Oxynorm (Oxycodone) 20mg – 2 cancelled dispensing transactions, approximately 300 capsules unaccounted for; 4. Oxycontin (Oxycodone) 40mg – 30 cancelled dispensing transactions, approximately 1232 tablets unaccounted for; 5. Oxycontin (Oxycodone) 80mg – 23 cancelled dispensing transactions, approximately 1036 tablets unaccounted for. 1. On 4 February 2022, Mr Osman sent an email to the PRU stating "Oxycontin 80mg was not supplied to [the second patient] on the 29th of September 2021 and oxycodone 5mg was not supplied to [the second patient] on the 1st October 2021. It was a price check". That was not a truthful response because there was a record of dispensing Oxycodone 80mg and 5mg to the second patient on 3 October 2021 on prescriptions dated 29 September 2021 and 1 October 2021 which Mr Osman subsequently deleted. 2. On 7 February 2022, Mr Osman received an email from the PRU requesting "Electronic dispensing records pertaining to the supply of Schedule 8 drugs from the Pharmacy for the preceding 12 months" and "Schedule 8 Drug Register pages relevant to the supply of oxycodone 80mg (all brands) and oxycodone 5mg (all brands) tablets for September and October 2021" by close of business 8 February 2022. 3. At around 11pm on 10 February 2022, Mr Osman contacted Person A's wife and asked Person A to work the next morning. At some point before the inspection on 11 February 2022, Mr Osman moved the Schedule 8 drug register (for the period from 19 August 2021) and the retained prescription duplicates for the period 26 March 2021 to 11 February 2022 from the dispensary of the Pharmacy. 4. On 11 February 2022: 1. PRU officers conducted an inspection of the Pharmacy; 2. Person A (pharmacist in charge on that day) and Mr Osman's mother were present; 3. Mr Osman and his sister were not present; 4. the PRU officer requested production of Schedule 8 drug registers for the preceding 2 years, retained Schedule 8 prescription duplicates for the period 1 January 2021 to 11 February 2022 and electronic dispensing records relating to the supply of Schedule 4D and Schedule 8 drugs for the period 1 January 2021 to 11 February 2022; 5. the PRU officer took photos of the 2 drug safes but was unable to access the Schedule 8 drug safe to ascertain the stock on hand because Mr Osman had not given Person A the key to the drug safe (Mr Osman's mother had delivered the Pharmacy keys to Person A on the morning of 11 February 2022 without the Schedule 8 drug safe key and the Pharmacy only had one set of keys to the drug safe); 6. the retained prescription duplicates for the period 26 March 2021 to 11 February 2022 could not be located; 7. the Schedule 8 drug register (for the period from 19 August 2021) which was usually located next to the printer could not be located; 8. Mr Osman was uncontactable during the inspection; 9. Mr Osman failed to make the documents and records, including the drug register (for the period from 19 August 2021) and the retained Schedule 8 prescription duplicates (for the period 26 March 2021 to 11 February 2022), available for inspection on demand by an inspector from the PRU, contrary to clause 176(3) of the PTGR. 10. the PRU seized Schedule 8 retained prescriptions for the period 2018-2021; 11. the PRU photographed some confirmation receipts of Schedule 8 drugs; 12. the PRU extracted a number of different dispensing reports. 1. On or before 14 February 2022, Mr Osman returned the missing drug register (for the period from 19 August 2021) and the missing retained prescription duplicates to the dispensary of the Pharmacy. 2. On 17 February 2022: 1. Mr Osman had not yet contacted the PRU, despite the PRU inspector making several attempts to contact him; 2. Mr Osman received an emailed letter from the PRU stating that he was prohibited from possessing, supplying, or manufacturing any Schedule 8 or Schedule 4D substance; 3. a PRU officer spoke to Person A who advised that the missing drug register and the prescription duplicates re-appeared at the dispensary of the Pharmacy on 14 February 2022. Person A agreed to conduct a full inventory count for all Schedule 8 and Schedule 4D drugs at the Pharmacy; 4. the PRU provided a preliminary report to police; 5. the PRU made a complaint to the Council and the complaint was referred to the HCCC. 1. On 18 February 2022, Person A conducted an inventory of Schedule 8 and Schedule 4D drugs and emailed the PRU the inventory counts. 2. On around 28 February 2022, Mr Osman became the sole proprietor of the Pharmacy after his sister relinquished her ownership. 3. On 1 March 2022, PRU officers attended the Pharmacy and seized the Schedule 8 drug register (for the period 19 August 2021 to 19 February 2022) and the retained Schedule 8 prescription duplicates. 4. On 2 March 2022, the practitioner received a letter from the Council inviting him to attend a hearing under section 150 of the National Law and asking him to provide a current employment declaration. Mr Osman did not respond. 5. On 10 March 2022: 1. the Council conducted a section 150 hearing regarding the practitioner on the papers; 2. the Council suspended Mr Osman's registration, effective from 11 March 2022. 1. On 13 April 2022, Mr Osman received a letter from the HCCC notifying him that the complaints from the Council and the PRU were to be investigated. 2. On 16 June 2022, Mr Osman received a letter from the HCCC attaching the PRU's final report and a notice to provide information and documents. 3. On 12 July 2022, Mr Osman's solicitor responded to the first notice and attached Mr Osman's response. 4. On 9 August 2022, Mr Osman received a letter from the HCCC attaching another notice to provide information and documents. 5. On 16 September 2022, Mr Osman's solicitor responded to the second notice and attached Mr Osman's further response. 2023 1. On 13 January 2023, Mr Osman received a letter from the HCCC inviting him to provide submissions. 2. On 10 February 2023, Mr Osman received a notice from the HCCC to attend an interview. 3. On 27 February 2023, Mr Osman participated in a HCCC interview. During the course of the interview, he admitted to the matters above and stated: 1. He engaged in the above behaviour due to the threats of harm made against him and/or his family members by unidentified males; 2. He took steps to conceal the diverted drugs to avoid the involvement of the patients or other practitioners. He took steps to cancel the fake scripts knowing the PRU had already become aware of them and would continue their investigation; and 3. He did not contact police for fear of retribution of the unidentified males. Evidence of Mr Osman 1. Mr Osman swore an affidavit on 1 November 2023. 2. [NOT FOR PUBLICATION] 3. Mr Osman said he experienced anxiety as a result of the threats that were made to him and that he started to "shut down" as he could not "process the events". He knew he would either be in trouble from the unidentified males if he did not comply with their demands or ultimately his career would be at risk. He was overwhelmed with anxiety and paranoia. 4. The threats also impacted his ability to properly manage the Pharmacy on a day-to-day basis. The business was already under pressure as a result of the Covid-19 pandemic. The Pharmacy was covering the costs of the drugs being demanded by the unidentified males which meant that he had to work even harder for the Pharmacy to make money or, at a minimum, break even. 5. Mr Osman had never been exposed to any similar incidents in his life and says he did not receive training in relation to people illegally demanding drugs from him under duress and he did not know how to manage the situation. 6. [NOT FOR PUBLICATION] 7. Mr Osman's registration has been suspended and he has been unable to work as a pharmacist for approximately 19 months. During this period, the Pharmacy has employed external pharmacists to keep the business running which has severely impacted the profits from the Pharmacy and his ability to provide for his family. 8. He accepts that the matters that have brought him before the Tribunal are serious and understands that there may be concerns regarding his registration but believes those concerns can be addressed by imposing conditions on his registration for example, preventing his from dispensing Schedule 4D and Schedule 8 drugs or any other conditions the Tribunal would see fit. 9. [NOT FOR PUBLICATION] 10. He says that since March 2022 he has reflected on the incidents and undertaken psychological treatment to allow himself to grow and address his underlying issues and prevent such events occurring again. 11. He says that he is "completely remorseful" for his actions but knows that "none of it would have happened had it not been for the threats and physical violence" to which he was subjected. He says he sincerely regrets his part in putting the community at risk. 12. Under cross-examination Mr Osman said that he has known since he studied at university that the unauthorised possession of Schedule 8 drugs was illegal, that those drugs were highly addictive and that there was a high risk of their misuse. 13. He said in 2020 he knew there were risks involved in people using opioids without a prescription. He knew that their misuse could lead to addiction. He said the risk to the health of people taking such medications without a prescription was that people could get to a point where they could not function without taking the medication because they suffered pain without it so they would need to keep using it. 14. He also said he knew that if people used these drugs without a prescription there was a risk of respiratory depression and a risk of overdose. 15. When asked whether he thought there was the potential for harm in providing Schedule 4D and Schedule 8 drugs to the unknown males he said that he did, but to avoid harm to his own family he had "no option". 16. Mr Osman admitted that there were two ways in which he tried to conceal the receipt and supply of the Schedule 4D and Schedule 8 drugs he provided to the unknown males. One way was by not recording the receipt by the Pharmacy of those drugs. Another was by creating false entries in the dispensing records stating that they were dispensed with a prescription, when there was no prescription. In these cases, he would choose to record drugs as having been dispensed to patients who had a history of taking the relevant medication. 17. When asked whether he had thought it was important to those patients that the record showed that they had been dispensed drugs which they did not in fact receive, he said that he was in a "panicked state". When asked whether he had thought it was important to his colleagues that the record incorrectly showed drugs as having been dispensed to a patient, who may wish to counsel those patients about the use of medication, he said he had not. He admitted that he was aware that patients, doctors and hospitals may all require access to the electronic dispensing records from time to time but said that in the situation he was in, he didn't know what else to do other than to falsify these records. 18. Mr Osman was taken to a number of different articles about steps that might be taken to deal with difficult customers in a pharmacy context. Mr Osman, for the most part, did not recall reading the articles he was taken to. 19. On numerous occasions throughout his cross-examination Mr Osman was asked whether, at a particular point in time, he considered contacting the police or raising the matter with them. On each occasion his response was consistent, namely that he feared for his own life and the lives of his family. He did not want to risk being found out and the threats of violence against him and his family being realised. 20. Mr Osman was also asked whether he considered seeking guidance from his sister, the PRU, the Pharmacists' Support Services (PSS) or his insurer. Mr Osman was not aware of the PSS, but in respect of the other possibilities suggested to him, again his response was the same. He did not reach out to anybody because of his fear that if he did so and he was found out, the threats of violence to himself and his family would be carried out. He said that he knew he needed support but he was too afraid to get it. Evidence of Ms Allaw 1. Ms Zeinab Allaw, a forensic psychologist, provided a letter dated 1 November 2023, gave further evidence at the hearing and was cross-examined. 2. Ms Allaw said that Mr Osman initially attended her clinic for an assessment on 11 April 2022 and began treatment on 10 July 2023. 3. During his initial consultation Mr Osman reported experiencing low mood, anxiety and social withdrawal, amongst other symptoms. 4. [NOT FOR PUBLICATION] 5. Mr Osman was administered the Depression, Anxiety and Stress Scale which is a questionnaire used to measure the frequency and severity of depressive, anxious and stress symptoms. Mr Osman's results indicated an Extremely Severe reading on Depression and Anxiety and a Severe reading on Stress. 6. After interviewing Mr Osman, it was determined that he met the diagnosis of Adjustment Disorder with severe low mood and anxiety symptoms. 7. Ms Allaw also identified that, as Mr Osman had been raised in an authoritarian household, he had difficulty facing major stresses because of his anxiety with authority figures. 8. Ms Allaw was asked in examination to express a view on Mr Osman's psychological ability to cope with the demands being made of him by the unknown males at the time that it happened. 9. [NOT FOR PUBLICATION] 10. In cross-examination she added that, in her view, anyone raised in an authoritarian household who had difficulties facing up to authority figures would have difficulty making a sound decision if put under significant stress such as the demands being made of Mr Osman. 11. Mr Osman returned to Ms Allaw for treatment more than a year after his initial assessment. Ms Allaw said that when he returned to the clinic he reported that he had been taking a healthier approach to his lifestyle and had undertaken courses on mindfulness. She said he was a "different man", he was psychologically healthier, taking a more positive approach to life and was able to engage with therapy better and faster than she had expected. He was already aware of techniques to improve his psychological wellbeing but wanted to get a professional opinion from a specialist psychologist to make sure he was "on the right track". 12. She has had 5 sessions to date with Mr Osman. In those sessions she has applied a Cognitive Behavioural Therapy (CBT) approach to deal with his anxiety issues. She has also introduced Schema Therapy in their most recent session to help him uncover problematic beliefs about himself and problematic ways he relates to the world and people around him. 13. She said that, in her view if Mr Osman were again threatened, his approach would be different and he is now in a better place to make the "sound and correct decision". 14. She proposes to continue Mr Osman's psychological treatment. She said that while typically a patient may have 6 sessions of CBT, Mr Osman only needed 4 sessions of CBT because of the courses he had done himself before he came to her. She now plans further Schema Therapy sessions with Mr Osman. How many sessions he will need will depend on how he engages with the therapy, however she believes they will need somewhere between 6 – 10 sessions. She proposes to see Mr Osman fortnightly for the next three months. 15. Ms Allaw said that, after this time, assuming Mr Osman engages well with his therapy, in her view, if he were again requested to supply drugs under threat of violence to him and his family, he would behave differently. She believes he would not accede to those requests and would report the matter to Police. Findings as to the Complaints Complaint One 1. We find that the evidence put forward by the HCCC proves the allegations in each of the Particulars of Complaint One, other than Particular Two and Particular Four, to the Briginshaw standard. 2. In so far as Particular Two of Complaint One is concerned, the Respondent does not admit that he supplied the Paxam 2mg tablets which were unaccounted for to the unknown persons. His evidence was that those drugs had expired and that he disposed of them. In so far as the Paxam 2mg tablets are concerned we do not find Particular Two of Complaint One to be proved to the Briginshaw standard. We find Particular Two is otherwise proven. 3. In so far as Particular Four of Complaint One is concerned, although in the Statement of Agreed Facts the Respondent agreed that he modified transactions creating cancelled transactions in relation to the dispensing of prescriptions for Schedule 8 drugs to avoid detection by the PRU, in his Reply he denied that he did so to avoid detection by the PRU. His evidence under cross-examination was that he created these cancelled transactions to avoid his patients becoming involved in the PRU's investigation but did not believe it would avoid detection by the PRU. His aim, he said, was for the PRU to ask questions of him in relation to the cancelled transactions rather than ask his patients whether drugs had in fact been dispensed to them. We find that the Respondent modified 204 transactions creating retrospective transactions relating to the dispensing of prescriptions for Schedule 8 drugs as outlined in Schedule B to the Complaint for the period 11 May 2021 to 30 January 2022. We do not find, on the state of the evidence, that he did so for the purpose of avoiding detection by the PRU. 4. "Improper" and "unethical" are not defined in the National Law. The Tribunal considered the meaning of those terms in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[55] stating as follows: "51. The words 'improper' and 'unethical' are not defined in the National Law. The Macquarie Dictionary defines improper as follows: '1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular.' 52. Unethical is defined as follows '1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct.' 53. The word improper was the subject of discussion by. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7. The Chief Justice said: '… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".' 54. Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term 'impropriety' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. 55. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: '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. …'" 1. Mr Osman accepts that his conduct was unsatisfactory professional conduct. In our view it is self-evident that the Respondent's conduct which we have found proved was improper or unethical as those terms are understood and, accordingly, we find that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. Complaint Two 1. The question we must then determine is whether the conduct we have found to be unsatisfactory professional conduct amounts to professional misconduct. 2. Professional misconduct is defined by s 139E of the National Law as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of a practitioner's registration or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of a practitioner's registration. 3. Counsel for Mr Osman submitted that we should find that Mr Osman's conduct did not amount to professional misconduct. He submitted that the definition of professional misconduct in the National Law was circular, as if the conduct warrants cancellation of his registration, it is professional misconduct for the purposes of s 139E of the National Law and if it is professional misconduct it would warrant cancellation of his registration under s 149C(1)(b) of the National Law. He argued cancellation of Mr Osman's registration is not warranted in the circumstances, so that his conduct did not amount to professional misconduct. 4. However, it is clear from the scheme of the National Law that we must first determine whether Mr Osman's conduct amounted to professional misconduct before we determine any protective orders that might be required to be made in the circumstances. The power of this Tribunal to suspend or cancel the practitioner's registration under s 149C of the National Law only arises in limited circumstances, the only one of which is presently relevant being a finding of professional misconduct. If we do not find Mr Osman's conduct amounts to professional misconduct, it would not be open to us to suspend or cancel his registration, it not being suggested that any other paragraphs of s 149C (1) of the National Law would be satisfied. 5. Further the authorities are clear that a finding of professional misconduct does not lead automatically to an order of suspension or cancellation of registration: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 at [4], Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [124]. 6. In Chen at [19]-[20], Basten JA explained: 19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 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. … 1. In assessing the seriousness of the conduct, it is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 638; [1997] NSWCA 264. 2. It was submitted for Mr Osman that in the context where his conduct could all be explained by the threats of violence to which he was subject, where he felt he had no choice but to comply with the demands put upon him and not to report the threats, and where there is no allegation of any other deficiencies in his practice, we should find that his conduct does not amount to professional misconduct. It was submitted a finding of professional misconduct would have an incidental punitive effect on Mr Osman. 3. In his Reply document Mr Osman also submitted that in determining whether his conduct amounted to professional misconduct we should take into account the fact that he had received no money for the drugs he supplied (which he said were paid for at a cost to him of approximately $50,000) and had received no training regarding how to deal with threats by organised criminal syndicates. 4. We accept that Mr Osman was subject to threats of violence against himself and his family by unknown males and we accept that Mr Osman did not report those persons' threats or demands to police (or others) out of a genuine fear that the threats would be realised if he did so. This was undoubtedly an extremely frightening and traumatic experience for Mr Osman. 5. We also accept that Mr Osman received no money for the drugs he supplied at considerable personal cost. 6. However, Mr Osman's conduct was, nonetheless, extremely serious. Over a period of two years he supplied, on 20 different occasions, very significant quantities of prescribed restricted substances and drugs of addiction knowing it was in clear breach of his obligations as a pharmacist, knowing that they would be distributed to members of the general public and knowing that there was a real risk of those people misusing those drugs and suffering serious adverse health effects or even overdose. 7. The quantities of drugs Mr Osman supplied were extremely large. Although the dosing quantities of these drugs varies, a common dose of Endone (oxycodone), for example, is 5mg four times daily, so 22,045 5mg tablets would be equivalent to approximately 15 years' supply for one patient of this medication. Similarly, a common dose of diazepam is 5mg three times daily, so 57,895 tablets would be equivalent to medication for approximately 52 patients for one year. Some of the drugs were also very strong. For example, Fentanyl 100mcg/hour is indicated for use in palliative care. Further, the quantities of the drugs supplied that are the subject of the Complaint relate only to the period February 2021 to February 2022 whereas Mr Osman has admitted to supplying drugs from February 2020 onwards on approximately a monthly basis, so it can be assumed that the actual quantities supplied over the entire period were well in excess of the quantities included in the Complaint. 8. Mr Osman's conduct was completely antithetical to his professional responsibilities as a pharmacist. Pharmacists are to make the care of patients their first concern and to work to protect and promote the health of individuals and the community. They have a responsibility to assess whether it is safe and appropriate to dispense drugs in response to a prescription issued properly and appropriately for appropriate therapeutic purposes and in appropriate quantities. By allowing vast quantities of drugs, which are tightly regulated by reason of the dangers they pose, to be sent out into the community for unmonitored use by members of the public, Mr Osman has unquestionably, in our view, been guilty of professional misconduct. 9. His conduct may have been motivated by a concern for his safety and the safety of his family, but that was to put his own and his family's safety ahead of the community's whose health it was his responsibility as a pharmacist to protect, a very serious error of judgment. 10. We accept that Mr Osman had had no training on how to deal with organised criminal syndicates and we reject any suggestion made by the HCCC that any training or information that he may have had, or may have been available to him, as to how to deal with aggressive patients in a pharmacy context could be of any real assistance to him in grappling with the situation he found himself in. 11. However, as his own counsel conceded, Mr Osman should have reported the matter to police. Mr Osman says that he didn't because he was scared and because, having been raised in an authoritarian household, he was unable to stand up to authority figures. 12. However even so, Mr Osman's conduct fell grossly short of the standard of conduct reasonably expected of a pharmacist. 13. In so far as Particulars One and Two of Complaint One are concerned, we find that Mr Osman's conduct amounted to professional misconduct. When taken together with that conduct, we find that Particulars Three to Seven of Complaint One, that is the steps Mr Osman took to avoid detection, also amount to professional misconduct. Appropriate Orders Disciplinary orders - principles 1. Section 3(2) of the National Law makes it clear that the objectives of the National Law include providing 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 purpose of disciplinary orders is not to punish the practitioner but to protect the public: Health Care Complaints Commission v Litchfield. However, that is not to deny that such orders may be punitive in effect: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], [31]. 3. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA gave the following explanation at [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." 1. In the exercise of its protective jurisdiction, the Tribunal must take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the profession and, more broadly, the protection of the community: Gayed v Walton [1997] NSWCA 121; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 2. As the Tribunal put it in Health Care Complaints Commission v Moses (No 2) [2019] NSWCATOD 190 at [28]: It is well-established that the orders which this Tribunal is empowered to make consequent upon a finding of professional misconduct are protective in nature, and consistent with the provisions of the National Law which are directed to the protection of the public from the misconduct of health practitioners. There are four elements to the consideration of what are appropriate protective orders. The first is the protection of the public from the conduct of the practitioner. The second is the deterrent effect which a protective order will have on the future conduct of a practitioner. The third is the deterrent effect which such an order will have on the conduct of other practitioners, so as to dissuade them from engaging in the same or similar misconduct. The fourth element is the enhancement of the integrity of the practitioner's profession and the confidence that the public may have in the practise of that profession. 1. As we have found Ms Osman guilty of professional misconduct, it is open to us to cancel his registration under s 149C(1)(b) of the National Law. However, as noted above that outcome is not automatic. 2. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA noted at [101]: The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order. The parties' submissions 1. The HCCC submitted that any order less than cancellation of Mr Osman's registration would be an inappropriate response to the seriousness of his conduct. 2. The Respondent submitted that a cancellation order would be unduly punitive and is not necessary for the protection of the public either from a specific or general deterrent point of view. It was submitted that the risk of threats occurring again has abated. Further it was submitted that given that Mr Osman is addressing his underlying issues with relevant psychological treatment such that he would stand up to any similar threats in future, and is likely to be "fit to practice" again in a "short period of time", there is no need for the making of a cancellation order. 3. The Respondent offered various different approaches by way of alternative orders the Tribunal might consider including: 1. Suspension for a period (a period of three months was suggested to coincide with the time by which Mr Osman's further counselling sessions with his psychologist are expected to end) together with the imposition of conditions on his practice when the suspension period expires together with Mr Osman volunteering to adhere to conditions considered appropriate by the Tribunal and/or the HCCC during the period of his suspension (noting that the Tribunal does not have power to impose conditions during the period a practitioner is suspended); 2. Neither a suspension nor a cancellation order, but the imposition of conditions considered appropriate by the Tribunal including as to supervision, the continuation of his psychological sessions and restricting Mr Osman's ability to possess or supply Schedule 4D and Schedule 8 drugs for a period of time; 3. Adjourning the proceedings for a period of three months to allow a further report to be obtained from Mr Osman's psychologist which could then be taken into account in determining the appropriate protective orders. 1. The Respondent submitted that the Tribunal should take into account that Mr Osman has operated the Pharmacy during the 19 month period of his suspension without issue. However, it was not submitted that the Tribunal should take his 19 month suspension period into account by way of a "credit", recognising that the Tribunal must look at what orders are necessary for the protection of the public looking prospectively, not retrospectively: Health Care Complaints Commission v Khan (No 2) [2019] NSWCATOD 37 at [49]. Disciplinary orders - conclusion 1. While, as we have noted above, we accept Mr Osman acted out of fear for his and his family's safety, Mr Osman's conduct was extremely serious. 2. Further, while in his affidavit Mr Osman said that he was "completely remorseful" and that he sincerely regretted his part in putting the community at risk, at the hearing of the proceedings, when asked about the potential harm people may have suffered as a result of using the drugs he supplied, he merely said he felt he had "no option". He did not say he regretted his actions, he did not apologise and he did not show any real apparent concern for the potentially very grave consequences his actions could well have had. Similarly, when asked about the impact on patients of his falsifying dispensing records he said that he "panicked". These responses demonstrated to us a real lack of insight into the gravity of what he had done. 3. Counsel for Mr Osman submitted that the duress Mr Osman was under removes the necessity for a specific or general deterrent. We disagree. 4. Although we have real reservations as to whether the risk of threats being revisited upon Mr Osman should he return to practise has abated as was asserted, we are satisfied that, if placed in the same situation again, Mr Osman would likely act differently. 5. However, if Mr Osman can be the target of threats and intimidation of this nature, it is entirely possible that other pharmacists might similarly be targeted. Pharmacists must know that they cannot give in to such threats and jeopardise the safety of the public, however fearful they may be. They must know that such conduct is completely unacceptable. 6. Any order less than a cancellation of Mr Osman's registration would, in our view, send the completely wrong message to other practitioners and would be insufficient to advance the protection of the public. In our view, any order less than cancellation would also seriously undermine the public's confidence in the profession. 7. Further, we reject the submission that a cancellation order, as distinct from a suspension order, would be unduly punitive as it would require Mr Osman to relinquish his financial interest in the Pharmacy. Under cl 5 of Schedule 5F to the National Law there are restrictions imposed on holding a financial interest in a pharmacy for pharmacists whose registration is either cancelled or suspended. 8. Nor do we consider it appropriate to adjourn the matter part heard to enable a further psychologist's report to be obtained. In our view, even if the psychologist were to express the opinion that Mr Osman was completely rehabilitated and could be trusted to stand up to threats of a similar kind in future, we would still consider a cancellation order appropriate for the reasons outlined above, namely to serve as a general deterrent to other practitioners, to uphold the standards of the pharmacy profession and to preserve public confidence in the profession. 9. It follows that we propose to make an order cancelling Mr Osman's registration as a pharmacist. 10. We also consider it is appropriate to set a minimum period within which Mr Osman may not make an application for review of the cancellation order. However, in light of the fact that no other issues have been raised in respect of Mr Osman's practice as a pharmacist and bearing in mind that he has continued to operate the Pharmacy without issue during the period of his suspension (albeit that he has of course not practised during this period) and is already undertaking therapy with his psychologist, we think that a non-review period of 1-2 years as proposed by the HCCC would be unduly punitive and would go further than required for the protection of the community and for the proper purposes of such an order. In our view, a non-review period of six months would be appropriate. This will give Mr Osman an opportunity to reflect further on his conduct and gain deeper insight into what he has done. Costs 1. The HCCC seeks an order that the Respondent pay its costs as agreed or assessed. This was not opposed by the Respondent. 2. This is a costs jurisdiction, and ordinarily costs should follow the event. While there is a discretion not to award costs to the successful party it must be exercised judicially "according to proper fixed principles and rules of reason and justice": Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]-[44]. 3. The presumption that a successful party is entitled to receive their costs is generally only displaced where there has been some disentitling conduct by the successful party: Health Care Complaints Commission v Brush (No 2) [2015] NSWCATOD 154 at [9]. 4. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, the Court of Appeal identified factors that might militate against the HCCC recovering all its costs as including a lack of success in obtaining findings against the practitioner or the HCCC's failure to establish the particulars pleaded, or some oppressive conduct on the part of the HCCC in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing. 5. While the HCCC did not make out certain of the Particulars of Complaint One in full, and while we do not propose to make disciplinary orders in the terms proposed by the HCCC, there has been no disentitling conduct on their part and we can see no reason to depart from the general rule as to costs. Orders 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (National Law) the registration of Ahmed Osman (Respondent) as a pharmacist is cancelled. 2. Pursuant to s 149C(7) the Respondent may not apply for a review of Order 1 for a period of 6 months from the date of these orders. 3. Under clause 13 of Schedule 5D of the National Law the Respondent is to pay the Health Care Complaints Commission's costs as agreed or assessed. 4. Pursuant to ss 64(1)(b) and 64(1)(d) of the Civil and Administrative Tribunal Act, the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or disclosed to anyone other than the Applicant, the Respondent, their legal representatives and the Tribunal. ********** SCHEDULE A TO THE COMPLAINT OF THE HEALTH CARE COMPLAINTS COMMISSION Drug Approximate Amount Unaccounted For Oxynorm 10mg 7,660 capsules Oxynorm 20mg 3,860 capsules Phentermine 40mg 3,960 capsules Zolpidem 10mg 3,412 tablets Paxam (Clonazepam) 2mg 2,600 tablets Endone 5 mg 22,045 tablets Oxycontin 40mg 4,060 tablets Oxycontin 80mg 3,416 tablets Diazepam 5mg 57,895 tablets Tramadol 200mg 8,640 tablets Alprazolam 2mg 1,200 tablets Fentanyl 100mcg/hour 20 patches Fentanyl 50mcg/hour 15 patches Fentanyl 75mcg/hour 5 patches SCHEDULE B TO THE COMPLAINT OF THE HEALTH CARE COMPLAINTS COMMISSION Drug Cancelled Dispensing Approximate Amount Transactions Accounted For Endone 5mg 115 6,926 tablets Oxynorm 10mg 34 1,360 capsules Oxynorm 20mg 2 300 capsules Oxycontin 40mg 30 1,232 tablets Oxycontin 80mg 23 1,036 tablets SCHEDULE C TO THE COMPLAINT OF THE HEALTH CARE COMPLAINTS COMMISSION Missing Corresponding Approximate Amount Drug Prescriptions for Dispensed Unaccounted For Entries Alprazolam 2mg 15 1,200 tablets Durogesic 50mcg/hour, 75mcg/hour, and 8 40 patches 100mcg/hour Oxynorm 10mg 67 1,480 capsules Oxynorm 20mg 4 280 capsules Oxycontin 40mg 8 280 tablets Endone 5mg 103 3,952 tablets Oxycontin 80mg 1 28 tablets 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: 04 December 2023