Health Care Complaints Commission v Dabboussi [2024] NSWCATOD 159

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dabboussi [2024] NSWCATOD 159 Hearing dates: 03 June 2024 Date of orders: 30 September 2024 Decision date: 30 September 2024 Jurisdiction: Occupational Division Before: A Britton, Deputy President K Carter, Senior Member M Cross, Senior Member J Sillince, General Member Decision: (1) Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (National Law), the respondent is reprimanded. (2) Pursuant to s 149A(1)(b) and (c) of the National Law, the Tribunal directs that the following conditions be imposed on the respondent's registration: (a) Not to possess, handle, supply, dispense, administer, manufacture or have access to any substances detailed in Schedule 8 of the NSW Poisons List (drug of addiction, derivative or compound medication) or benzodiazepines or any derivative or compound medication thereof). (i) Contravention of condition (a) will result in the respondent's registration being cancelled. This condition is a critical compliance condition imposed under s 149A(4) and (5) of the National Law. (b) Not to possess, handle, supply, dispense, administer, manufacture or have access to any substances detailed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). (i) Contravention of condition (b) will result in the respondent's registration being cancelled. This condition is a critical compliance condition imposed under s149A(4) and (5) of the National Law. (c) Not to practise as the pharmacist in charge. (d) To attend for treatment by an addiction medicine physician of the respondent's choice. The frequency of treatment is to be determined by the treating practitioner. The respondent: (i) is to authorise the treating practitioner to inform the Pharmacy Council of NSW of any of the following: (A) failure to attend for treatment; (B) termination of treatment; or (C) a significant change in health status (including a significant temporary change); (ii) must provide the Council with the professional details of the treating practitioner/s. (e) To seek and undergo counselling and/or treatment by a psychiatrist, psychologist or therapist of the respondent's choice. The frequency of treatment is to be determined by the treating practitioner. The respondent: (i) is to authorise the treating practitioner to inform the Pharmacy Council of NSW of any of the following: (A) failure to attend for treatment; (B) termination of treatment; or (C) a significant change in health status (including a significant temporary change); (ii) must provide the Council with the professional details of the treating practitioner. (f) To attend for treatment by one nominated general practitioner of the respondent's choice. The frequency of treatment is to be determined by the treating practitioner. The respondent: (i) is to authorise the treating practitioner to inform the Pharmacy Council of NSW of any of the following: (A) failure to attend for treatment; (B) termination of treatment; or (C) a significant change in health status (including a significant temporary change); (ii) must provide the Council with the professional details of the treating practitioner. (g) To comply with the Pharmacy Council of NSW Drug screening policy and Participant Procedure (as varied from time to time) and attend for: (i) Urine drug screening (UDS) 3 times a week; and (ii) Quarterly hair drug screening (h) Not to self-administer any: (i) non-prescribed restricted substance (Schedule 4 Appendix D drug) as defined in the Poisons and Therapeutic Goods Regulation 2008 (NSW) or drug of addiction (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW), (ii) narcotic derivative, non-prescription compound analgesic, or cold medication, or (iii) substances listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) unless such medications are prescribed by his treating practitioner and taken, as directed by his treating practitioner. (iv) Within seven days of being prescribed such substance or drug by their treating practitioner, the respondent must notify the Pharmacy Council of NSW and provide written confirmation of the treatment from the treating practitioner. (v) Contravention of condition (i)-(iii) will result in the practitioner's registration being cancelled. This condition is a critical compliance condition imposed under ss 149A(4) and (5) of the National Law. (i) To practise under category B supervision in accordance with the Pharmacy Council of NSW's Compliance Policy - Supervision (as varied from time to time), varied as follows: that the practitioner meet with his supervisor weekly; that the practitioner provide reports to the Council on a monthly basis; that the practitioner not engage in "independent practice", such as on-call, after-hours work, nursing home visits and home visits and, as subsequently determined by the appropriate review body. (j) The respondent: (i) is not to practise until a supervisor has been approved by the Pharmacy Council of NSW. (ii) at each supervision meeting is to review and discuss their practice with their approved supervisor with particular focus on: (A) substance abuse; (B) appropriate dispensing practices; (C) Professional obligations under AHPRA's Shared Code of Conduct; (D) Understanding of the Pharmacy Professional Practice Standards and Board Guidelines; and (E) Professional communication. (iii) is to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. (k) Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply while the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Pharmacy Board of Australia. (l) The appropriate review body for the purpose of a review under section 163 - 163C of the Health Practitioner Regulation National Law is the Pharmacy Council of NSW when the respondent has a principal place of practice in NSW. (m) Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Pharmacy Board of Australia for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (3) The respondent is to pay the Commission's costs as agreed or assessed. Catchwords: HEALTH PRACTITONER — unsatisfactory professional conduct — whether s 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) requires the practitioner to knowingly fail to comply with statutory notification obligations HEALTH PRACTITONER — protective orders – whether practitioner ought be permitted to practice subject to supervision and regular drug testing — appropriate level of supervision Legislation Cited: Crimes Act 1900 (NSW), Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Grygiel [2021] NSWCATOD 28 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWSC 297 Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Ng v Health Care Complaints Commission [2017] NSWSC 53 Nominal Defendant v Smith [2015] NSWCA 339 Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ahmad Dabboussi (Respondent) Representation: Counsel: K Sharma (Applicant)