Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sedrak (No 2) [2014] NSWCATOD 159 Hearing dates: On the papers Decision date: 18 December 2014 Jurisdiction: Occupational Division Before: M Joseph SC, Principal Member E Anderson, Professional Member A Reynolds, Professional Member D Anderson, Lay Member Decision: 1. That pursuant to s149C(1)(b) of the National Law the registration of Mr Sedrak be cancelled immediately. 2. That pursuant to s149C(7) that an application to review the cancellation order made under this Division, not be reviewed for a period 3 years from this day. 3. The Respondent to pay the costs of the HCCC pursuant to clause 13 of Schedule 5D of the National Law. Cases Cited: HCCC v Vo (2014) NSWCAT at [12] HCCC v Nguyen (2014) NSWCATOD at [12] HCCC v Do (2014) NSWCA 307 Category: Principal judgment Parties: Maged Sedrak (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: W Hunt (Complainant) P Griffin (Respondent) Solicitor: Health Care Complaints Commission (Complainant) Cambridge Law (Respondent) File Number(s): 1420020 Publication restriction: Non Publication Orders ApplyPursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW), publication or disclosure of the name, address or any evidence or information which might tend to or lead to the identification of the names of patients of Dr Wilcox identified in these proceedings is prohibited. reasons for decision Ex Tempore Judgement 1. PRINCIPAL MEMBER: The Tribunal today has now reached what is colloquially called the "second stage" of the hearing involving Mr Sedrak. This decision is concerned with what protective orders ought to be made in the light of the Tribunal's findings made in the earlier decision of Health Care Complaints Commission v Sedrak (2014) NSWCATOD 114 delivered on 15 October 2014. This decision will be read in the context of the findings made in that decision. 2. We have received from the HCCC written submissions as to what orders it submits are the appropriate protective orders specifically submitting that Mr Sedrak be disqualified from practising as a registered pharmacist, of which he presently is, and that he not be permitted to apply for a review of his deregistration for a period of three to five years. 3. Mr Griffin, who in the finest traditions of the Bar appears today to assist the Tribunal despite being uninstructed. He however did submit "on instructions" his client accepts that his registration must be cancelled, and that the appropriate period for applying for a review should be one year from today. He stated that his client further accepts that he should pay the HCCC's costs. 4. Thus the submissions have revolved around the question the period before which review can take place and to what extent the hardship Mr Sedrak has suffered and would suffer if at his age he be disqualified for an extensive period. Mr Griffin has submitted that Mr Sedrak has not appealed the decision of the Tribunal, because he essentially accepts the findings of the Tribunal and that he has already paid a relatively high financial cost in respect of the conduct which was reviewed by the Tribunal in its earlier decision. 5. The purpose of protective orders are well understood by the Tribunal. Of course, as Mr Hunt says, each case will depend on its own facts and, in particular, given those facts what message needs to be sent to the profession. The findings of the Tribunal in respect of the most serious of finding namely that of professional misconduct commence at para 305 of its decision and concluded at 326. We do not think there is any point in repeating those findings other than to say in our opinion they represent a most serious departure from professional standards, perhaps at the very worst end of such departures. They range not only in respect of the dispensing of drugs without prescription over a significant period of time, but the dispensing of such drugs without prescription knowing that the script, unlawful script that was provided, was provided by a doctor who did not have authority to prescribe such drugs. 6. The Tribunal found there was evidence of connivance between Mr Sedrak and Dr Wilcox. The drugs themselves were drugs many of which are used for non therapeutic purposes and are used at great risk to those who use them in those circumstances. There was also found an alternative series of particulars relating to the failure to keep what is professional and proper records, and a matter of great concern to the Tribunal was the failure to report a burglary to the police of many of the same drugs which had been previously dispensed in illegal circumstances. 7. While, Mr Griffin stated that Mr Sedrak accepted the findings and seeks to use this fact to explain his absence from today's hearing as it not being inconsistent with such acceptance. The Tribunal has difficulty in accepting that submission. His absence has meant that the Tribunal does not have before it what explanations, if any, Mr Sedrak offers for his conduct in the light of the Tribunal's findings. Further as Mr Hunt submitted those explanations have not been tested, and thus the Tribunal is unable to test the submission of Mr Griffin. These are all matters that the Tribunal has to consider in determining the period during which Mr Sedrak should be have his registration unable to be reviewed. 8. The responsibility of making protective orders has been discussed in numerous cases and the Tribunal does not intend to repeat those legal principles. They are well known and have been regularly applied by this Tribunal and by the Court of Appeal. Recent decisions include HCCC v Vo (2014) NSWCAT at [12], and perhaps a more pertinent decision is that of HCCC v Nguyen (2014) NSWCATOD at [12] which was, indeed, a decision involving a pharmacist who supplied steroid medications to one patient and, indeed, had not dissimilar malpractices to that of Mr Sedrak, including Mr Nguyen's failure to notify the police of a break in. The most recent decision of the Court of Appeal as to the nature of protective orders can be found in a decision of HCCC v Do (2014) NSWCA 307 and, in particular, at [35] and following. 9. The Tribunal adopts and accepts those principles and will apply them in this matter. It has regard in particular, to the National Law, and in particular s 3A and s4 which the Court of Appeal stressed as stating the objective of protective orders; namely, to protect the health and safety of the public. More specifically the Court at [43] where the Court stated: "These significant and continuing departures from acceptable and safe medical practice require the respondent's conduct to be marked publicly as justifying cancellation of her registration and that she be disqualified from being registered for a period. The Commission submission that the period should be at least 18 months should be accepted. The making of orders under s 149C(2) will make plain the conduct of the kind engaged in is unacceptable, particularly in the circumstances where there is a risk that the practitioner's objective and independent judgment might be compromised because the patient is someone with whom he or she has close personal relationship." 1. This latter observation was part of the factual matrix here. 2. It is clear that the purposes of a cancellation of registration is for the protection of the public and the need to send messages to the profession as to the level of the departure that in the Tribunal's mind has occurred given its findings it made in its previous decision. That much is accepted by Mr Griffin and by the HCCC and as observed by Mr Griffin, this is not a case where the period of time for which cancellation remains should not to be determined by any period of time that might be required to overcome any particular impairment, there being no evidence of this having occurred in this case. 3. The Tribunal has given weight to each of the factors required of it in considering the period of cancellation. There being no issue that there should be a period of cancellation. 4. The Tribunal has determined that the period of cancellation given the accepted findings made by the Tribunal in its earlier decision, should be three years from today. 5. Mr Griffin accepted that Mr Sedrak should pay the HCCC's costs as agreed or taxed. 6. The formal orders are; 1. That pursuant to s149C(1)(b) of the National Law the registration of Mr Sedrak be cancelled immediately. 2. That pursuant to s149C(7) that an application to review the cancellation order made under this Division, not be reviewed for a period 3 years from this day. 3. The Respondent to pay the costs of the HCCC pursuant to clause 13 of Schedule 5D of the National Law. 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: 03 March 2015