Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chau [2015] NSWCATOD 25 Hearing dates: 9,10,11 March 2015 Decision date: 07 April 2015 Jurisdiction: Occupational Division Before: O Shub, Principal Member R Benda, Professional Member M Duguid, Professional Member M Barnett, Lay Member Decision: 1. For a period of two years the Respondent shall make himself available on a quarterly basis to attend mentoring sessions with Ms Zwart or such other person appointed by the pharmacy council. 2. That the mentor appointed report on a quarterly basis to the pharmacy council on the progress being made by the Respondent and that the mentor provide advice to the pharmacy council at the end of the first 12 month period as to whether the mentoring sessions should continue for a further 12 months. 3. That the Respondent pay the costs associated with the mentoring program. 4. That the Respondent pay the costs of the complaint brought by the Complainant to the Tribunal. Catchwords: Pharmacist – Unprofessional Conduct, Professional Misconduct, Pseudoephedrine, Anabolic Steroids, Testosterone, Nandrolone, Non-Therapeutic Purposes, Mentoring Programme Legislation Cited: Healthcare Complaints Act 1993, Sections 39(2) and 90B(3) Health Practitioner Regulation National Law (The National Law), Sections 145A, 139E, 139B(1)(a), 139(B)(1), 139D(1)(B) Poisons and Therapeutic Goods Regulation 2008, Sections 23, 24, 54, 76 Poisons and Therapeutic Goods Act 1966, Section 10, Section 35 Cases Cited: HCCC v Do 2014 NSWCA 307 HCCC v Nguyen 2014 NSWCATOD 123 Briginshaw vs Briginshaw (1938) 60CLR 336 Lyne vs New South Wales Bar Association (1960) HCA 40 Prakash vs HCCC (2006) NSWCA 153 HCCCC vs LAU (2011) NSWPHT2 Skelin [2002] NSWPB 4 HCCC vs Sekrak [2014] NSWCATOD 114 NG [2010] NSW PHT 2 HCCC vs Philipiah (2013 NSWCA 342 HCCC vs Litchfield (1997) NSWSC 297 HCCC vs Landen (2009) NSWPHT 1 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) James Chau (Respondent) Representation: Counsel: A Petrie (Applicant) G Farmer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 1420195 Publication restriction: Non Publication Order in respect of patient identified as Patient A Reasons for decision Background 1. In June 2011, the New South Wales Ministry of Health (The Ministry) was contacted by the New South Wales Police Drug Squad with information regarding Kingsgrove Pharmacy, Kingsgrove (The Pharmacy). The New South Wales Police alleged that large quantities of preparations containing pseudoephedrine were being supplied from the pharmacy for reasons other than therapeutic treatment. 2. This precipitated an investigation into the management of the pharmacy by the Complainant and led to the view that the Respondent was guilty of multiple breaches of his professional obligations as a practising pharmacist, including inappropriate dealing with pseudoephedrine, testosterone and nandrolone substances. 3. As a result of the investigations the Healthcare Complaints Commission (the Complainant), following consultation with the Pharmacy Council of New South Wales laid a complaint against Mr James Chau, the details of which are contained in the Complainant's complaint as amended dated 15th of August 2014. Opening Submissions Complainant 1. In opening the Complainant provided a chronology of the events leading to the Hearing. 2. In the period from 14 February 2011 to 29 November 2011 the Respondent supplied approximately 9,000 proprietary packs of the restricted substance namely pseudoephedrine-based products in a quantity or for a purpose which did not accord with recognised therapeutic standards contrary to Regulation 23 of the Poisons and Therapeutic Goods Regulation 2008. In addition, the Complainant alleged that in the period from 14 February 2011 to 16 January 2012 the Respondent supplied anabolic androgenic steroids by way of 85 proprietary packs of testosterone-based items and approximately 44 proprietary packs of nandrolone-based items without a written prescription of an authorised practitioner contrary to section 10 of the Poisons and Therapeutic Goods Act 1966 in a quantity or for a purpose which did not accord with recognised therapeutic standards. 3. The Complainant came to that conclusion because of the quantities supplied being excessive and multiple supplies on the same day, with some products being supplied in conjunction with other products which should not have been supplied together. The Complainant and the Respondent have not been able to agree on the quantities which were unaccounted for with the Complainant stating a quantity of 9,000 packets of pseudoephedrine being unaccounted for while the Respondent estimated around 7,000 packets unaccounted for. 4. In addition, the Complainant alleges that there was a failure to keep Schedule 8 drugs in a safe on the 16th of January 2012. 5. The Complainant advised the Tribunal that there were no current conditions on the Respondent's registration. Respondent's Opening 1. The Respondent made a number of admissions which are contained in the Respondent's response to the particulars of the Complainant handed up to the Tribunal and marked Exhibit 2. 2. In essence the Respondent admits that he is guilty of unsatisfactory professional conduct as alleged in Complaint 1. The Respondent admits that during the period 14 February 2011 and 29 November 2011 he supplied proprietary packs of a restricted substance, namely pseudoephedrine products, but does not admit that he supplied the products for a purpose which did not accord with recognised therapeutic standards of what was appropriate in the circumstances, contrary to regulation 23 of the Poisons and Therapeutic Goods Regulations 2008. The Respondent also admitted that at all relevant times he knew that pseudoephedrine was commonly abused for a non-therapeutic purpose, namely as a precursor in the production of methamphetamine. 3. In respect of Complaint 2, the Respondent admitted that he is guilty of unsatisfactory professional conduct in that he failed to keep adequate records in relation to his receipt and/or supply of pseudoephedrine-based products but does not admit that he supplied 9,000 proprietary packs of pseudoephedrine-based products. 4. The Respondent also admitted that during the period 14 February 2011 and 16 January 2012 he supplied the restricted substances, anabolic androgenic steroids or approximately 85 proprietary packs of testosterone-based items and approximately 44 proprietary packs of nandrolone-based products but denies that the supply of the anabolic steroids as set out above was without a written prescription of an authorised practitioner, contrary to section 10 of the Poisons and Therapeutic Goods Act 1966. The Plaintiff admitted that those supplies were not in accordance with recognised therapeutic standards of what was appropriate in the circumstances, that he ought to have contacted the prescriber to discuss that fact, and that he knew at the time that such substances were abused for non-therapeutic purposes. 5. The Respondent, however, denied that he is guilty of professional misconduct within the meaning of sections 139E of the National Law in that he denies that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and he denies that he 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 suspension or cancellation of his registration. 6. The Respondent accepts that his conduct during the relevant period does not accord with the requirements of a pharmacist. However, the Respondent states that by admitting that approximately 7,000 packets of pseudoephedrine-based products are unaccounted for does not mean that the Respondent is admitting that he supplied 7,000 packets of pseudoephedrine-based products. The Respondent states that at the end of the day the Tribunal will find that the Respondent is fit to practice as a pharmacist. Complainant's Evidence Evidence of Mr Michael O'Donnell 1. The Complainant tendered a report dated 6 August 2013 addressed by Mr Michael O'Donnell to the Complainant and Mr O'Donnell was required to be cross-examined by the Respondent. In summary, Mr O'Donnell described the therapeutic purposes of each of the relevant medications and the requirements for their storage, dispensing and sale. 2. Mr O'Donnell was asked to comment on the Respondent's stocktaking, dispensing and disposal methods for medication prior to 29 November 2011, Mr O'Donnell describing this as being "as established by the PSU investigation", in that respect he believed that the Respondent had departed from the standard and that that departure was below the standard expected of a practitioner of an equivalent level of training or experience. 3. Mr O'Donnell was asked to comment on the Respondent supplying pharmacist-only medication (i.e. pseudoephedrine-based products) to persons in quantities or circumstances as evidenced by the relevant pharmacy schedules and to comment on whether that supply was inappropriate according to clause 23 of the Poisons and Therapeutic Goods Regulation 2008. In that respect he indicated that he would expect a practitioner of an equivalent level of training or experience applicable at the time of the conduct to ask questions about the therapeutic use and record the responses which the Respondent had not done. Mr O'Donnell stated that he would expect a practitioner of an equivalent level of training or experience applicable at the time of the conduct to be able to identify the location of all stock in his pharmacy, particularly as he was the only pharmacist working there. The Respondent was not able to do this. He believed that the departure from the standard was below the standard expected of a practitioner of an equivalent level of training or experience. 4. Mr O'Donnell was asked to comment on the Respondent not recording the supply of pseudoephedrine-based products, contrary to clause 24 of the Poisons and Therapeutic Goods Regulation 2008. The Respondent had not done this. He believes that the departure from the standard was significantly below the standard and that departure invites his strong criticism. 5. Mr O'Donnell was asked to comment on the Respondent supplying restricted substances (i.e. 5 units of nandrolone and 37 units of testosterone over an 8 month period) to a client and he was asked to comment as to whether or not this supply was appropriate according to clause 54 of the Poisons and Therapeutic Goods Regulation 2008. Mr O'Donnell indicated that it would seem that Patient A was receiving prescriptions for these substances at approximately three times the usual maximum dosage rate. Mr O'Donnell made the point that he was not provided with any evidence to show that the Respondent understood that he should not have been providing nandrolone or testosterone in those quantities to a single client or that he had taken steps to check whether that supply was for therapeutic purposes. There is no evidence presented that the Respondent did this. He believes that the departure from the standard was significantly below the standard and that departure invites his strong criticism. 6. Mr O'Donnell was asked to comment on the Respondent's failure to account for approximately 9,000 packs of pseudoephedrine-based products between 14 February 2011 and 29 November 2011. Mr O'Donnell calculated that this would mean sales of approximately 40 packs per working day over a 9 month period to regular customers, which sales he did not record. He stated that he has worked in excess of 150 pharmacies and has never seen sales of pseudoephedrine-based products at that rate over a 9 month period. He believes that the departure from the standard was significantly below the standard and that departure invites his strong criticism. 7. Mr O'Donnell was asked to comment on the Respondent's failure to account for 85 packs of testosterone-based products between 14 February 2011 and 29 November 2011 and as the Respondent was unable to account for that number of packs Mr O'Donnell believed that the departure from the standard was significantly below the standard and that that departure invites his strong criticism. 8. Mr O'Donnell was asked to comment on the Respondent's failure to account for 44 packs of nandrolone-based products between 14 February 2011 and 29 November 2011. He was unable to do so and Mr O'Donnell believes that that departure from the standard was significantly below the standard and that departure invites his strong criticism. 9. Mr O'Donnell was asked to comment on the Respondent's response to the PSU and Commission that the discrepancy of approximately 9,000 packs of pseudoephedrine-based products, 85 packs of testosterone-based products and 44 packs of nandrolone-based products is as a result of bad record keeping and/or theft. Mr O'Donnell indicated that he was highly sceptical of the Respondent's claim that 9,000 packs of pseudoephedrine-based products, 85 packs of testosterone-based products and 44 packs of nandrolone-based products are unaccounted for was due to bad record keeping and theft. He indicated that the wholesaler records tendered showed purchases of approximately 1,350 packs of pseudoephedrine-based products in the period that the Respondent owned the pharmacy until the robbery, so even if no product had been sold in that period and that all purchases were subject to the break-in there would still be a huge shortfall not accounted for by the theft. He also noted that 9,000 packs of pseudoephedrine-based products would occupy a large amount of space and that therefore an explanation that they could have been stolen through a broken window seems highly unlikely. In being critical of the Respondent being unable to account for the purchase and sales of the various products, he believes that the departure from the standard was significantly below the standard and that that departure invites his strong criticism. 10. Mr O'Donnell was asked to comment on the Respondent's storage of drugs of addiction in an unlocked desk drawer, contrary to clause 76 of the Poisons and Therapeutic Goods Regulation 2008 which were detected during a visit to the pharmacy by the PSU officers on 16 January 2012. Mr O'Donnell records that at the time the Respondent indicated to the PSU officer that he was unaware that he was required to store drugs of addiction in a safe and asked if it was a legal requirement to keep drugs of addiction in a safe at all times. The Respondent also explained that each morning he removes all of the pharmacy's drugs of addiction from the safe and places them in a dispensary desk drawer for easy access during the day. He then returns the items in the evening before leaving the pharmacy. Mr O'Donnell did not accept that there was a valid excuse for removing drugs of addiction from a safe at the start of every day for ease of dispensing and believes that the departure from the standard was significantly below the standard and that that departure invites his strong criticism. 11. Mr O'Donnell was asked to comment on any other issues with regard to the Respondent's conduct that he feels relevant and in that respect Mr O'Donnell commented that the Respondent appears to be a practitioner that was making many incorrect practice decisions and incorrect legal decisions about things that a pharmacist in regular practice should know. He also observed that he made little effort to practise correctly after his first visit from the PSU and was still not using Project Stop or dispensing prescriptions for androgens correctly after their visit. 12. Mr O'Donnell was then cross-examined by the Respondent on a number of issues. 13. He was asked whether Mr O'Donnell was aware that only 7 mentoring reports had been provided to him and asked whether he was aware that there were another 11 mentoring reports which related to later periods than the 7 provided. Mr O'Donnell confirmed that that was only now drawn to his attention and shown to him. 14. Mr O'Donnell was questioned on whether the later mentoring reports would in any way change his criticisms. He indicated that they would not. He indicated that a pharmacist should have processes up and running in the timeframe of the mentoring reports that he saw but even if now operating properly it did not change his criticism. 15. Mr O'Donnell confirmed that in undertaking his expert report, he was relying on the information provided by the Council. In regard to his reference to police, he relied on the information provided in his instructions but did not investigate what the police told them and where they got their information. He indicated that he did not regard that as a requirement of him as he was asked to comment on the supply only. In response to a question as to whether the police enquiry played no role in his report, he stated that it did not. He was asked whether he assumed that the Respondent was supplying illicit drugs because police were investigating, to which he replied that he did not, nor that he must have been supplying illicit drugs because police said so. 16. Mr O'Donnell was then cross-examined on the recording of the sales of pseudoephedrine products on pads titled PSE-3. He was asked whether he had seen a statement by the pharmacy assistant. He indicated that he had recently seen that statement and had read it. He stated that he was surprised by the statement because the number of pads was a lot. When it was pointed out to him that the pharmacy assistant did not say PSE pads she stated an exercise book, he responded that he was aware of that. He was cross-examined then on how many entries could be in an exercise book to which he confirmed he could not possibly know as he did not know the size of the exercise book or the number of pages in it. 17. He was extensively cross-examined on the inadvertent disposal of pads and exercise books by the pharmacy assistant. In response to a question that in 2015 he was shown the pharmacy assistant's statement and asked whether that did not affect his opinion, to which he replied that it does not affect his position because it is unlikely that it is true. He was challenged on that and asked to accept as a fact the statement that the pads and books had been inadvertently disposed of. He was asked whether he would accept that he should be less critical of the Respondent to which he replied that he could not say that because he would not know that every sale had been recorded and for that reason he could not change his position at all. 18. Mr O'Donnell was also cross-examined on the terminology at page 20 of his report where he stated that the Respondent "changed his story". He stated that he simply took that from the PSU officer's statement. It was pointed out to him that the PSU officer never used words "changed his story". It was put to him that the fact that the Respondent gave a different version of the facts from the PSU version did not mean that the Respondent had "changed his story". 19. Mr O'Donnell was excused. Evidence of Mr Kane Walter 1. Statements by Mr Kane Walter dated 24 September 2012 and 10 January 2013 were tendered by the Complainant and Mr Walter was required for cross-examination. The effect of Mr Walter's evidence was that in June 2011 the New South Wales Ministry of Health was contacted by the New South Wales Police Drug Squad with information regarding the Respondent's pharmacy. The New South Wales Police alleged that large quantities of preparations containing pseudoephedrine were being supplied from the pharmacy for reasons other than therapeutic treatment. 2. This information precipitated an investigation including the officer contacting pharmaceutical wholesalers, receiving wholesale records pertaining to the delivery of preparations containing pseudoephedrine to the pharmacy after 29 June 2011. On receipt of the wholesale records on the 29th of November 2011 Mr Walters with a senior pharmaceutical officer Martin Power attended the pharmacy. They found the Respondent and had a brief discussion with him showing their certificates of authority. The Respondent was questioned on how he records the supply of preparations containing pseudoephedrine and the Respondent showed him two notebooks containing handwritten records of supply. Mr Walter carried out a stock check of all preparations containing pseudoephedrine on the premises and asked whether preparations containing pseudoephedrine were stored in any other location to which the Respondent replied that he did not. During the stocktake he also noticed a large quantity of testosterone injections in the dispensary. Mr Power advised the Respondent that he appeared to have excessive amounts of testosterone products on hand and that he should arrange for the majority to be returned to the pharmaceutical wholesaler it was ordered from. Mr Power served a notice issued under section 35 of the Poisons and Therapeutic Goods Act 1966 on the Respondent and explained that it required him to provide information concerning receipt and supply of preparations containing pseudoephedrine during the period 29 November 2009 to 29 November 2011. Mr Walter informed the Tribunal that on the 16th of January 2012 he and Mr Power attended the pharmacy and explained to the Respondent that they were there to obtain records regarding the receipt and supply of preparations containing testosterone or nandrolone and to complete a stock check. Mr Power served notices issued under section 35 of the Poisons and Therapeutic Goods Act 1966 and explained that they required him to provide information concerning receipt and supply of preparations containing nandrolone or testosterone during the period 16 January 2010 to 16 January 2012. He also gave evidence of having found various drugs of addiction stored in an unlocked drawer located in the dispensary. He made a list of the drugs of addiction found inside the drawer and noted the quantities. He asked the Respondent why the drugs of addiction were not stored in a safe, to which to he indicated that the Respondent seemed unaware that he was required to store drugs of addiction in a safe and asked if it was a legal requirement to keep drugs of addiction in a safe at all times. He gave evidence to the effect that the Respondent explained to him that each morning he removes all of the pharmacy's drugs of addiction from the safe and places them in a dispensary desk drawer for easy access during the day. The Respondent explained to him that he then returns the items in the evening before leaving the pharmacy. 3. Mr Walter gave evidence that on the following day (17 January 2012) the Respondent contacted the Ministry by telephone and explained that there were more testosterone injections in the pharmacy than the stock check carried out the day before, as a result of which Mr Power and Mr Walter attended the pharmacy and completed a stock check of preparations containing testosterone. As the Respondent told them that it would not be possible for him to return the majority of his testosterone stock to the relevant pharmaceutical wholesaler, Mr Power seized 105 units of primoteston, leaving 5 units for immediate dispensing purposes. The Respondent forwarded a response to the section 35 notice on 29 November 2011. 4. In conclusion, in respect of the report of the 24th of September 2012, Mr Walter stated that various concerns existed regarding the professional practice of the Respondent in his role as a proprietor of the pharmacy. Concerns include; 1. Inappropriate supply of pharmacist-only medication containing pseudoephedrine; 2. A large discrepancy between the quantities of preparations containing pseudoephedrine delivered to the pharmacy by pharmaceutical wholesalers and records of pseudoephedrine supplied to patients; 3. Apparent unlawful supply of the prescribed restrictive substances testosterone and nandrolone; 4. Failure to retain prescriptions directing the supply of the prescribed restricted substance nandrolone; 5. Unlawful storage of drugs of addiction; 1. Mr Walter in that report recommended prosecution at the local court under the provisions of clause 76 of the Poisons and Therapeutic Goods Regulation 2008, provision to the New South Wales Police with a copy of the investigating officers report and appendices for any action deemed appropriate and provision to the Pharmacy Council of New South Wales with a copy of the investigating officer's report and appendices for any action deemed appropriate. 2. Mr Walter was cross-examined on the question of his notes and asked whether he recalled that the solicitor for the Respondent called to ask for any additional notes. He did not recall that but was asked what notes he would have made. He was asked whether he recalled having made a note of a call on the 17th of January 2012 from the Respondent to which he replied that he did not recall making a note but he definitely would have. He was asked whether there were any other file notes that he had available, to which he stated that he definitely would have made notes but was not in possession of any notes as he had left the ministry. He was asked whether when he made his report in December 2012, almost a year after his first visit he had other notes, he replied yes. On being asked where they were, he stated that he kept notes in a journal that he carried around with him but that they would be with the PSU. He was cross-examined on his use of the words "large quantities" to which he replied that he referred to large quantities based on his personal experience and research by him on sales of pseudoephedrine-based products from a random sample of New South Wales pharmacies. He indicated that he had a spreadsheet in his office but had no access to it now. Mr Walter was cross-examined on the alleged statement by the Respondent to Mr Walter in respect of the quantity of drugs of addiction found in an unlocked drawer and was asked whether he had a clear recollection of that conversation. He indicated that he did have a clear recollection and stated that he remembered it because it was so unusual. On being challenged on that and being advised that the Respondent says that he did not say what is alleged to have been said, he confirmed that he definitely remembered it as he had put it. 3. Mr Walter was asked whether the Respondent did have a safe in the pharmacy, to which Mr Walter replied that he did, and on checking the safe he confirmed that there were Schedule 8 drugs in the safe. Mr Walter was cross-examined on whether he ever approached Patient A about his purchases of testosterone, to which Mr Walter replied that he did not. He was asked why he did not contact Patient A and advised that he did not think that his boss would have permitted him to, if anything she would have contacted Patient A. When asked whether she did he stated that he did not think so. 4. He was asked whether he spoke to the prescriber, Dr Ismail, to which he replied that he did not. He was asked whether he would not normally do that, to which he stated that he normally would but he can't remember why he didn't on this occasion. 5. On being cross-examined about the PSE-3 pad sales, in coming to a conclusion on the number of unaccounted for pseudoephedrine-based products he stated that he used the smallest pack size of product, for example, the Codral cold and flu tablets comes in different size packs - he would use the pack size containing the smallest quantity. He confirmed therefore that there is room to move on the number of accounted for packs. 6. Mr Walter was asked questions regarding the position of pharmacist only medicines and questioned as to whether there was a counter separating pharmacist only medication from public access. He stated that there was not a counter. He was challenged on this and it was put to him that there was a counter. He maintained that as far as he remembered there was not. 7. Mr Walter was excused. Evidence of Jennifer Zwart 1. The mentor reports of Ms Zwart were tendered in evidence and Ms Zwart was required for cross-examination. She gave her evidence and was cross-examined by telephone. 2. In summary, Ms Zwart indicated that the Respondent had taken some considerable period of time to show improvement in his understanding and management of the pharmacy, but by mentor session #18, felt that he was considerably improved and that he had introduced systems and processes which were enhancing the management of the pharmacy. 3. Ms Zwart was asked whether she believed that despite her report of mentoring session #18 the Respondent still required further mentoring, she indicated that any pharmacist could benefit from further improvement, but if asked to comment she indicated that there were three areas that she mentioned as perhaps still needing attention despite the fact that those had been improving. In respect of Project Stop, she indicated that this should be followed up to ensure that it is continuing to be used regularly in respect of the supply of pseudoephedrine-based products. She indicated that Mr Na, the pharmacist who works with the Respondent in the pharmacy had some difficulty with the use of Project Stop as that he had some difficulty communicating with customers. In respect of backing up the computer on a daily basis, she believed that that should be checked and mentored as well. Finally, in respect of audits she believed that should be checked and mentored further. She was asked whether she discussed her mentoring sessions with the Pharmacy Council and whether they had made the decision to stop the mentoring sessions. She indicated that she had discussed the mentoring sessions with the Council and that they had made a decision to stop the mentoring sessions. In response to her suggestion that there might be some areas where further mentoring could be valuable, she said that she thought that mentoring four times per annum for, say, two years, would be appropriate. She was asked whether if the first four were positive, she would suggest that a review be held at that time to terminate the mentoring sessions to which she replied yes. 4. Ms Zwart was then excused. Respondent's Evidence – Evidence of Mr James Chau 1. The Respondent provided two statements which led to very limited cross-examination of him. In essence, he provided a response to the New South Wales Health section 35 notice dated 28 November by way of an undated email but which was delivered on time. The essence of his email was to the effect that he was attaching invoices for purchases of the relevant items and of importance was the fact that in that email he indicated that he had other recording books for pseudoephedrine-based products, but was unable to find them as they had been misplaced or lost. He also listed the amount of stock of pseudoephedrine-based products on hand. 2. The Respondent also provided a response pursuant to section 40 of the HCCC Act. In the document prepared for the Respondent and attached to the letter from the Respondent's solicitors, the Respondent stated that on his calculation the number of unaccounted pseudoephedrine-based products was in fact 7,060 and he rejected the statement in the expert's report that they see no reason as to why he is unable to account for such a large volume of PSE's. He stated that there were a number of reasons why there was an inability to account for the unaccounted PSE's, including the fact that he had had a burglary, and the fact that his pharmacy assistant had inadvertently disposed of various records. He stated that PSE's were supplied in a lawful and ethical manner to persons who demonstrated a therapeutic need for them and some were returned to the wholesaler if overstocked, although he did not keep proper records of this. He understood that his failure to properly record such supplies via PSE pads and notepads or to provide all of the records which were generated of such supplies was poor professional practice but he stated that this does not mean that pseudoephedrine-based products were supplied unlawfully or in deviation from industry standards. In relation to the testosterone and nandrolone he stated that the wholesaler and dispensing records indicate that in fact only 44 units of testosterone and 17 units of nandrolone were unaccounted for and suggests that the only possible reason for the unaccounted packs related to the break and enter in May 2011 and his failure to have a proper recording system for discarded medication via the RUMS bins or return of overstock to the wholesaler. He stated that despite his previous shortcomings and his unsatisfactory professional conduct as a pharmacist, during the last two years he has spent a considerable time evaluating where he needs to go from here and it has brought him back to the reason he did pharmacy. He has always worked in pharmacy from his early days of study until his registration in 2004 and enjoyed interacting with people and being helpful to the community. 3. The Respondent was asked questions about his work history and indicated that he had worked as a pharmacist since 2004 working with other pharmacists. He had worked at Hurstville for some six years but stated that he was not familiar with using Project Stop as all the pharmacists with whom he had worked used PSE-3 pads or booklets. 4. He was asked questions about why on some of the PSE-3 forms shown to him there had been no ID check to which he responded that he relied on his pharmacy assistant to advise him who were regular customers as he was new to the pharmacy and she knew the customers who had been customers of the pharmacy for a considerable time. 5. In respect of the dispensing of anabolic steroids he indicated that he had no knowledge of the requirements for dispensing anabolic steroids as he had never dispensed an anabolic steroid at the previous pharmacies. 6. He was also cross-examined on why he had such large stocks of pseudoephedrine-based products and anabolic steroids to which he replied that he had purchased large quantities in order to get good deals from the various suppliers with whom he was dealing. Valentina Lazarewski 1. Ms Lazarewski had made three statements, one dated 9 September 2013, the essence of which is that between October and November 2011, during a spring cleaning session of the pharmacy, she discarded several PSE-3 pads and notepads which had been used to record sales of pseudoephedrine at the pharmacy. She cannot recall the period of sales which these pads covered and cannot recall how many pads were discarded. The pads were discarded along with a large box full of old items which were no longer required by the pharmacy. She stated that she discarded the PSE-3 pads and notepads of her own volition. She was not asked to discard those items by the Respondent or anyone else. 2. The third statement was a very brief email dated 4 September 2013 to the Commission which was largely to the same effect. 3. In a detailed statement to the Tribunal she stated that at the end of each trading day her procedure was to check on whether stocks were almost depleted in order to work out what stocks including medication were required to be ordered. She would then proceed to do so. Since working with the Respondent, the usual procedure when stock was delivered was as follows; the delivery person would deliver the boxes of the items including medication. The invoices from the wholesaler detailed the various medications received, during a day. When there was some spare time, the boxes would be unpacked by staff, usually her. At most times, she would check off the actual items and medications against that list on the invoice, hence the items were usually marked off on the invoice, however there were times when they were busy and she just accepted the delivery and unpacked the items without marking the items off on the invoice straightaway. The actual invoices as they listed the medications and items received were retained in order to document what stock was received from the wholesaler. If a stock item had not yet been added to the computer after its delivery to the pharmacy, but the item needed to be supplied to a customer, it was her practice to ring up that item under the code of "ethical", which was something of a miscellaneous option. This was done in order to ensure that the items and the till balanced at the end of the day. 4. She stated that pseudoephedrine items and other medications such as anabolic steroids were supplied using the "ethical" option. She stated that both before the Respondent purchased the pharmacy and afterwards, they used PSE forms to manually record the details taken from patients requesting pseudoephedrine items, but on occasions when they were very busy they did not make such records. She stated that since the investigation by the Pharmacy Council of New South Wales into the pharmacy, the Respondent has amended the policies and procedures including; 1. they have stopped using the "ethical" option for ringing up a sale for medications, it is now only used if necessary for front of shop items; 2. they record all the required details of the customer when supplying pseudoephedrine items on Project Stop on the computer; 3. the Respondent double-checks the invoices of all deliveries to make sure the Pharmacy receives what is ordered and he puts the items away; 4. regular stocktakes are performed using the scanner. 1. The witness was shown certain photographs of the pharmacy, which were tendered and marked Exhibit 9. These photographs showed a counter between the public and the pharmacist-only medicines. These photographs were produced by the witness in order to deal with evidence given by the PSU officer to the effect that there was no barrier between the pharmacist-only medicines and members of the public. The witness pointed out that she would at all times be able to see if anybody approached the pharmacist-only medicines as she would either be at the till or the area behind the counter would be perfectly visible. This evidence was in contrast to the evidence of Mr Walter who indicated that there was no counter between the public and the pharmacist only medication. 1. The witness confirmed that before the investigation they used PSE-3 pads and an A4 book. She would have some of those pads and possibly a book and the pharmacist the same. She confirmed in her evidence that if products became outdated they would throw them into the RUMS [Return Unwanted Medicines] bin but before the investigation they did not record the products disposed of. Now all out of date products are given to the Respondent and he records and disposes of it in the RUMS bin. The witness confirmed that Patient A was a customer of the pharmacy before the Respondent took over and was well known to them. His purchases included the same products, namely anabolic steroids. Insofar as the anabolic steroids provided to Patient A, the witness did not have an impression that he was an abuser of anabolic steroids. 2. On cross-examination the witness was asked whether she had handed out some of the PSE medications without pharmacist supervision during the course of working in the pharmacy to which she replied that she had, but when she did she completed a PSE-3 form or inserted a record in the A4 notepad. She stated that since the investigation she does not hand out any of these medications and that that is done by the pharmacist only. 3. The Respondent provided statements of three character witnesses, Mr Peter Athanasakos, a pharmacist, Dr Con Daldas, a dermatologist and Mr John Conti, pharmacist. Mr Athanasakos and Mr John Conti were required for cross-examination while Dr Daldas was not. The cross-examination of the witnesses did not have any great significance to the evidence of the Respondent. 4. That concluded the evidence in the case. The Complainant requested an amendment to their requested orders and a short adjournment to take instructions on an amendment to the orders was sought and granted. On return the Complainant indicated that the request for de-registration remained but as an alternative the Complainant was seeking a suspension or a return to practice subject to mentoring, auditing and an order that he not be entitled to work as a sole pharmacist. Submissions Complainant's Submissions 1. The Complainant commenced its submissions by clarifying that while it sought cancellation of the Respondent's registration, in the alternative it sought an order for suspension, and if an order for suspension was not made then an order that the Respondent's return to practice be subject to mentoring, auditing and that he not be entitled to work as a sole pharmacist. 2. The Complainant then made submissions as summarised hereafter. 3. The standard of proof required to establish Complaints 1, 2 and 3 in the present proceedings is the civil standard of proof, that is, on the balance of probabilities. However, given the seriousness of the allegations and the gravity of the consequences, the Tribunal must be "reasonably satisfied" that the particulars of the Complaint have been established. 4. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J at 362 to 363 held: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences … this does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained." 1. In Clyne v New South Wales Bar Association [1960] HCA 40 at 201-202, the High Court said: "Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege." 1. The Complainant set out the various complaints against the Respondent in the Complainant's submissions and in respect of Complaints 1 and 2, the Complainant stated that The Respondent's evidence under cross-examination in this regard was somewhat contradictory, with him initially giving evidence that the testosterone packets were on the dispensary table in front of the inspectors and subsequently stating that they were in Sigma boxes in the storeroom. Mr Walter gave evidence that he inspected the storeroom behind the dispensary for additional anabolic androgenic steroids and pseudoephedrine and that no additional stock could be found. 2. The Complainant asked the Tribunal to find that Mr Walter was a credible witness and his evidence in relation to the above issues was unwavering. 3. The Complainant submits that the Respondent's evidence in relation to the additional pseudoephedrine packets that he alleges that he found subsequent to the first occasion that the Ministry attended on the pharmacy is disingenuous, particularly in circumstances where he took it upon himself to notify the Ministry about the additional stock found in relation to the testosterone based items immediately after the Ministry attended on the pharmacy on the second occasion, but did not notify any authority of the additional pseudoephedrine stock located in the pharmacy until his first statement to the Complainant received on 23 July 2013. Further, Mr Walter had inspected the dispensary and storeroom adjacent to the dispensary and the Respondent had signed handwritten schedules of the stock on hand at the relevant time. Mr Walter in his evidence observed that the Respondent had checked the relevant quantities prior to signing the stock check documents. 4. The Respondent gave evidence that prior to purchasing Kingsgrove Pharmacy he had not been aware of the requirements for the dispensing of anabolic steroids and that he had not dispensed a steroid prescription. The Complainant submits that the Tribunal would exercise caution in accepting The Respondent's evidence in this regard, and in any event his conduct in relation to this issue falls significantly below the standard reasonably expected of a practitioner of his level of training or experience, given that as a pharmacist he would have received training regarding the requirements for the dispensing of anabolic steroids and the misuse of these medications within the community is widely known. 5. In relation to the break in at the pharmacy on 7 May 2011, there is no evidence prior to the Respondent's statement to the Complainant received on 23 July 2013 that anabolic steroids and/or pseudoephedrine may have in fact been stolen at that time. 6. The Respondent conceded under cross-examination that his recording of pseudoephedrine supplies was inadequate in circumstances where he failed to record the supply of pseudoephedrine to regular customers. Having only just acquired the pharmacy at the time that the complaint arose, he gave evidence that he relied on his pharmacy assistant to tell him which customers were regulars to the pharmacy, in circumstances where he himself was not familiar with this. His failure to record such supplies and reliance on his pharmacy assistant in relation to her judgement of which supplies should be recorded falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 7. The Complainant submits that the Respondent's evidence in relation to this issue and that of his pharmacy assistant should simply not be accepted by the Tribunal in support of any assertion that a significant number of sales for the relevant period were in fact recorded and have subsequently been lost. 8. The pharmacy inspector gave evidence in relation to control drugs being found in an unlocked drawer and in respect of a conversation with the Respondent gave a version of the discussions that differed from the version given by the Respondent. 9. The Complainant submits that Mr Walter was a credible witness and that, where there is a conflict between his and the Respondent's evidence, Mr Walter should be believed. 10. The Complainant relies on the submissions outlined above in relation to Complaints 1 and 2 for Complaint 3 and, in particular, submits that the Respondent's conduct is of a sufficiently serious nature to justify suspension or cancellation of his registration and that, as outlined above, there is 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 Respondent's registration. 11. The Complainant submits that the Respondent's explanations in relation to the large quantities supplied of precursor drugs are inadequate. The Police Report and Guild Insurance claim for the robbery in May 2011 failed to give evidence in relation to large quantities of pseudoephedrine drugs being stolen. Further, significant quantities of pseudoephedrine based products were ordered by the Respondent's pharmacy after the robbery. 12. The Complainant changed its written submission to read that the inadvertent disposal of exercise books of allegedly recorded customer details in relation to the supply of pseudoephedrine also is not an adequate explanation. The PSE-3 pads seized from the pharmacy in relation to the supply of pseudoephedrine cover the entire period the subject of the Complaints. It is unlikely that the pharmacy would have maintained multiple pads and exercise books at the same time in relation to pseudoephedrine medication in circumstances where it is a pharmacist only medication and must be supplied by a pharmacist and the Respondent was the sole pharmacist on duty for the majority of the time during the relevant period. The pharmacy assistant in her evidence in relation to the alleged disposal of the exercise books recording the details of the supply of pseudoephedrine was initially vague in her evidence, stating that she could not recall how many pads were discarded and the period of sales that those pads related to. 13. Skelin [2002] NSWPB 4 (13 March 2002) involved a pharmacist who was deregistered for misconduct involving supplying large amounts of Sudafed (pseudoephedrine). He was a sole proprietor pharmacist. Skelin appealed to the District Court however the Board's decision was upheld. 14. In Health Care Complaints Commission v Sedrak [2014] NSWCATOD 114 (15 October 2014) the Tribunal, in response to an argument that a pharmacist has a lesser role than a medical practitioner in the supply of anabolic steroids, reinforced the independent professional obligations of the dispensing pharmacist and held at paragraph 16 that: "There was some suggestion that as a pharmacist's conduct is but consequential to that of the prescribing doctor, the pharmacist's responsibility is less. This was to misrepresent and diminish the critical role of the pharmacist. Their role is to make independent judgements in the interests of the patient. The pharmacist's role includes checking the legality, appropriateness, and safety of any prescription. Routine work of a pharmacist includes the application of their knowledge and expertise. Concerns about a prescription should be raised with the prescribing doctor and this intervention noted." 1. In the case of NG [2010] NSWPHT 2 (29 April 2010) the Pharmacy Tribunal deregistered a pharmacist for a period of 2 years following findings of professional misconduct and convictions (relating to breaches of the Poisons and Therapeutic Goods Regulations 2002). Among the conduct engaged in by Mr Ng, which included failing to make inventories and keep records of drugs of addiction, Mr Ng also supplied quantities of androgenic anabolic steroids on prescriptions which failed to specify the intervals at which the drug may be supplied, contrary to clause 38 of the PTGR. 2. Mr Ng admitted that he supplied anabolic steroids in the circumstances alleged against him, however he had no reasonable excuse for his conduct. Although the HCCC expert was only mildly critical of Mr Ng's actions the Tribunal did not agree with that assessment and said at paragraph 27 of the decision "It is unacceptable for pharmacists to dispense restricted substances contrary to the clear and unequivocal legislative provisions and against the established standards of pharmacy practice". 3. The Complainant submits that the above conduct is similar to that admitted by the Respondent in the present case, in respect of Patient A. 4. In the matter of HCCC v Nguyen [2014] NSWCATOD 123, which involved a pharmacist supplying large quantities of pseudoephedrine, the Tribunal observed the following at paragraph 6 of its decision: "Because of their toxicity and 'precursor' potential, pseudoephedrine –based medications are available only from a pharmacist, without a prescription, but subject to strict supply measures including identification of a purchaser and the recording of a purchase; sale quantity limitations also apply. Steroid medications are available only upon a valid, written prescription of a registered medical practitioner. Supply of the above medications contrary to the requirements of the PTG Act and PTG Regulation, is not only illegal, but represents a fundamental breach of a registered pharmacist's paramount, professional obligation to protect the community the profession serves, consistent with the privilege registration grants to a pharmacist as the community's custodian of medications. Ignorance of a pharmacist's statutory obligations cannot ever be a defence to breach of such basic obligations." 1. In the current case the Respondent does not plead ignorance to his statutory obligations concerning the supply of pseudoephedrine. In fact, he offers no reasonable excuse for his failure to observe these requirements and no reasonable explanation for the vast quantity of unaccounted for pseudoephedrine-based products. His explanations for having ordered such large quantities of pseudoephedrine products, from multiple wholesalers, over the relevant period are also, in the Complainant's submission, are illogical. The Respondent's evidence in these proceedings is characterised by a lack of candour in respect of certain aspects of his conduct and a lack of true insight into his failings as a practitioner. 2. The Complainant submitted that the multiple dispensing of anabolic steroids to Patient A entitles the Tribunal to infer that this was done improperly and in breach of the Respondent's obligations. The Complainant submitted that the evidence of Ms Lazarewski should be rejected and that Mr Walters evidence should be believed. In respect of Mr O'Donnell, the Complainant stated that despite his sometimes fixed and aggressive behaviour under cross-examination, he should still be believed. The Complainant referred to the police evidence that there had been no mention of pseudoephedrine when dealing with the police or the insurance company and therefore the explanation by the Respondent should be rejected. Finally the Complainant submitted that the character references given by the Respondent in his defence were inadequate for the Tribunal to have regard to any of those. Respondent's submissions 1. Submissions were made on behalf of the Respondent and responded to various evidence or raised areas where there was a lack of evidence. The Respondent commenced his submissions by pointing out that importantly Patient A and Dr Ismail who are central to the alleged illegal supply of anabolic steroids had not been spoken to by the Complainant or by the police and he submitted that therefore the Tribunal is not able to be comfortably satisfied that these supplies were not for a therapeutic purpose. 2. In respect of Mr Walters evidence the Respondent submitted that his report was prepared only nine months after his visit and that no contemporaneous notes were made available. He submitted that it is possible that Mr Walters either misunderstood some of his discussions with the Respondent, or alternatively had forgotten the detail. 3. Turning to the question of the burglary, the Respondent submitted that a short time after the break-in "the Drug Squad" made unspecified allegations to the PSU against The Respondent. Unfortunately, no record was made of any specific allegation. No attempt has been made to obtain this "information". There is no evidence as to the provenance of the "information". Although speculative to some extent, the link in time between the break-in and the making of the allegation cannot be entirely ignored. More importantly, the records reveal a limited supply to the pharmacy of these products through to May, 2011, the time of the break-in. This belies the suspicion attaching to the "information" that "large" amounts were being improperly supplied. 4. On 29 November, 2011, officers from the PSU attended the Kingsgrove Pharmacy. There is no evidence of any inappropriate storage of S 8 drugs at this time, nor any suggestion that pseudoephedrine based products were inappropriately located within the pharmacy. 5. On 16 January, 2012 the officers also located some S8 drugs in a drawer in the dispensary and noted some errors in the S8 Register. There was no evidence that any S8 drugs were in the drawer on November, 2011and Mr Walter stated that he saw S8 drugs in the safe. It is submitted that the Tribunal would accept the Respondent's evidence regarding the conversation that occurred that day. 6. Some 9 months later, the PSU brought these matters to the attention of the Pharmacy Council. Shortly after that, The Respondent provided a response to the Pharmacy Council about these matters. The Respondent was not challenged as to the accuracy or truthfulness of that statement, save for the terms of the conversation with Mr Walter concerning S8 drugs. It is submitted that The Respondent's evidence regarding this conversation is more accurate than that given by Mr Walter. 7. The "raw" evidence regarding the quantity of pseudoephedrine based products (PSE – 3) supplied to the pharmacy are contained in the records from the wholesalers. The respondent accepts that any uncertainty surrounding the precise figures arises because of his failure to properly record his dealings with those products. This includes failing to keep records of: 1. amounts actually received; 2. amounts supplied; and 3. amounts returned. 1. This material, as well as the investigation report and other material, was provided to Mr O'Donnell for his opinion. It is submitted that the issues in this case are patently clear and that the Tribunal would not be assisted by the evidence of Mr O'Donnell. It is submitted that the Tribunal would have regard to the reasoning in HCCC v Sedrak [2014] NSWCATOD 114, at [46]-[47] when considering Mr O'Donnell's evidence. In this case, it is submitted that Mr O'Donnell's evidence was weakened by lapses in objectivity and a consequential reluctance to make appropriate concessions. 2. Importantly, it is submitted that the Tribunal would not be satisfied that the Respondent supplied amounts of PSE - 3 products in circumstances where the amount supplied was not reasonably required or otherwise excessive. There is no reliable evidence upon which the Tribunal could comfortably conclude that to be the case. The Respondent has denied that such supplies occurred. It was not put to him that he had done so. Given the overall tenor of his evidence, in addition to his volunteering of information to the PSU and his candour when dealing with Ms Zwart, it is submitted that the Tribunal would accept his evidence in this regard, and generally. 3. In relation to amounts returned, it is submitted that the Tribunal would not accept the evidence of Mr O'Donnell that such products do not have expiry dates. In this regard, it is noted that the respondent's evidence about this subject was not challenged during cross-examination. Of course, the Tribunal is able to inform itself about these matters. 4. The Respondent submitted that the Tribunal would have no difficulty in accepting the evidence of The Respondent, Ms Zwart, the referees and Ms Lazarevski. 5. There is insufficient evidence to comfortably conclude that any actual harm occurred as a result of The Respondent's unsatisfactory professional conduct. 6. In all the circumstances, it is submitted that his conduct does not constitute professional misconduct. Complaint 3 has not been made out. The evidence does not support a finding that the conduct was deliberate misconduct. To the contrary, it is submitted that all of the evidence confirms that The Respondent's conduct was caused by poor judgment borne of inexperience. 7. The Respondent frankly admits that his conduct fell below acceptable standards. His response to those shortcomings has included: 1. showing appropriate insight into his conduct; 2. fully participating, at considerable expense, in the mentoring programme ordered by the Pharmacy Council; 3. openly, and honestly, engaging in that programme; 4. changing the systems adopted at the pharmacy, specifically in relation to PSE-3 products and his drug registers, but, additionally, in relation to staff contracts and staff training; 5. increasing his competencies as a pharmacist; 6. undertaking extra professional courses; and 7. completing his First Aid certificate. 1. In summary, the Respondent submitted that his evidence before the Tribunal showed that he dealt with the issues in a totally upfront way. He did not seek to dodge allegations of inappropriate behaviour. 2. Having heard Ms Zwart's suggestion for further mentoring, he was not reticent in agreeing that he could benefit from that. In relation to the Complainant's submission at paragraph 22 of the Complainant's written submissions, the fact that Mr Walters said that he inspected and didn't find additional product does not detract from the fact that the Respondent did find additional product. The Respondent stated that it is not suggested that Mr Walters came to tell lies, but the Respondent is completely credible and his version is credible, and there is no reason to reject it as suggested. 3. In response to the submission of the Complainant at paragraph 54 that the Respondent lacked candour and a lack of insight is completely wrong. Ms Zwart said that he had great insight into his conduct and she was never questioned or challenged on this. It is inappropriate to suggest otherwise in submissions. 4. In dealing with protection orders, the Complainant provided references to the case of Do and Nguyen. The orders need to protect the public and act as a deterrent. The Respondent submits that the orders under which the Respondent has already been operating were a sufficient deterrent for members of the pharmaceutical profession. In Nguyen the Respondent there admitted that he intentionally breached his obligations and deliberately supplied anabolic steroids to a particular patient. He also lacked any insight into his behaviour. In the current case we cannot find any evidence that shows intentional supply or a lack of insight. 5. The Respondent submitted that he has totally revamped the pharmacy and his systems and there is no doubt that there is no risk to the community in allowing the Respondent to continue to practice. 6. The Respondent in dealing with the submission by the Complainant that it is not a defence to rely on a lack of knowledge or experience the Respondent submitted that he has in no way attempted to rely on a lack of knowledge or experience as a defence. 7. In dealing with the Complainant's submission that the break-in at the pharmacy does not explain anything, the Respondent points out again that the Respondent does not seek to excuse the complaint based on the break-in as the only explanation but lists it as a cause. The Respondent submitted that in fact if he was seeking to cover up improper behaviour the break-in would have been a perfect opportunity to cover up the large "supply" of drugs for illicit purposes. The Respondent submits that it was never put to the Respondent that he was untruthful or dishonest. 8. The Respondent submitted that the Tribunal should find that there has been unsatisfactory professional conduct but not professional misconduct and that there is no basis for cancellation or further suspension but as recommended by Ms Zwart there should be a further period of mentoring. 9. In respect of costs the Respondent accepts that the ordinary orders in respect of costs should follow. Complainant's Submissions in reply 1. The Complainant made only minor submissions in reply and submitted that the case of the Respondent is not different to Nguyen in which Nguyen was deregistered for a period of two years. The Complainant also rejected the suggestion at paragraph 17 of the Respondent's written submissions that Mr O'Donnell's evidence was weakened by lapses in objectivity and consequential reluctance to make appropriate concessions. The Complainant submitted that the fact that a suitable explanation cannot be found for the unaccounted for quantity of pseudoephedrine-based products, the Tribunal can infer that it was supplied. Decision 1. The Tribunal was obliged to weigh up the evidence given on behalf of the Complainant and the evidence given on behalf of the Respondent and to determine whether the Complainant had satisfied the appropriate test for the Respondent to be found guilty of professional misconduct or, in the alternative, unsatisfactory professional conduct whether on a single or multiple occasions. 2. The Tribunal is mindful of the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 which, in summary is precedent for the fact that the Tribunal does not have to follow the criminal test of beyond reasonable doubt but while following the civil test of a balance of probabilities, has to be comfortably satisfied that the case against the Respondent has been made out. In that respect Briginshaw v Briginshaw is authority for the fact that the test is a higher test than the civil test and fits between the civil and criminal test. 3. The Complainant led evidence from Mr O'Donnell, an expert witness who was highly critical of the Respondent on the basis that in multiple instances he failed to meet the necessary standards of a pharmacist with the expected knowledge and experience. Mr O'Donnell's evidence was based largely on his experience working in multiple pharmacies and he proffered an estimate of approximately 150 pharmacies working as a locum. He stated that in his experience the quantities of pseudoephedrine-based products for which the Respondent is unable to account is excessive and would be higher than the amount of pseudoephedrine which would be ordered even in a very large pharmacy. He was also critical of the lax record keeping which was demonstrated by the behaviour of the Respondent. Insofar as the anabolic steroids were concerned he was critical of the quantity of anabolic steroids held by the Respondent as well as the fact that he failed to check with the prescriber instances where he should have been aware that the anabolic steroids being purchased may have been being purchased for an illicit purpose rather than a therapeutic purpose. 4. While Mr O'Donnell was an expert witness and commenting only from his experience, the Tribunal was troubled by his lack of objectivity even in instances where it was both obvious and simple for him to retract a criticism based on evidence which was to be given and of which he was aware. There was some doubt in the minds of the members of the Tribunal as to whether the attitude adopted by Mr O'Donnell stemmed from the fact that he had been made aware that the police had investigated the activities of the Respondent in the pharmacy and that he was influenced by that knowledge. 5. The Complainant led evidence from Mr Walter who the Tribunal found to be a good and honest witness. The Tribunal found very little difference between the evidence given by Mr Walter and the evidence given by the Respondent, except in a minor respect. Mr Walter recalled a conversation in which the Respondent said that he was not aware that schedule 8 drugs were required to be kept in a safe at all times and that he always took out a quantity of schedule 8 drugs to keep in a drawer in the dispensary for ease of dispensing. The Respondent denied this evidence but in submissions by his counsel the Respondent recognised that Mr Walter was not a person who they would have thought would have come to the Tribunal to lie and that in the circumstances he may not have recalled the exact conversation or may have misunderstood aspects of it. The Tribunal was noted that in respect of that evidence Mr Walter was recalling a discussion which took place in 2011, having recorded that discussion in a report approximately 9 to 12 months after the discussion and that he was unable to produce any contemporaneous notes in that regard. 6. In summary, the Complainant's case rests heavily on the need for the Tribunal to draw inferences from the fact that there is evidence to show high quantities of pseudoephedrine having been purchased, as well as higher than expected quantities of testosterone and nandrolone. The Complainant, when cross-examining the Respondent's witnesses sought to elicit admissions that the Respondent supplied quantities of pseudoephedrine and anabolic steroids without recording that supply, but the only admission that was elicited was that the Respondent had purchased high quantities of those medications. 7. The Respondent did not agree with the Complainant's allegation that there were 9,000 packages of pseudoephedrine-based products which were not accounted for, but stated that on his calculation there was approximately 7,000 packages unaccounted for. The Tribunal does not believe that the difference between the 9,000 alleged by the Complainant and the 7,000 admitted by the Respondent is of any significance in its decision-making process since even a number of 7,000 would be a very large amount. 8. The Respondent gave evidence himself and was cross-examined on his evidence. He also produced evidence from his pharmacy assistant Ms Lazarewski, and from three character witnesses. 9. The Respondent in his evidence made admissions in respect of almost all the allegations made by the Complainant in Complaints 1, 2 and 3, save that he did not admit that he supplied quantities of pseudoephedrine or anabolic steroids for an illicit purpose. He stated that in all instances when supplying any of those medications he supplied them for therapeutic reasons. He did make admissions which make it easy for the Tribunal to decide that the Respondent is guilty of unsatisfactory professional conduct. It falls to the Tribunal, therefore, to decide whether the instances of unsatisfactory professional conduct, when taken together are sufficiently serious to decide that the Respondent is guilty of professional misconduct. The evidence given by Ms Lazarewski was to the effect that in about October or November of 2011, some months after the Respondent had purchased the pharmacy, she was undertaking a spring cleaning and believes that she inadvertently disposed of PSE-3 pads and notebooks in which it had been their custom to also record sales of pseudoephedrine. In the evidence which she gave to the Tribunal at the Hearing, she indicated that she might also have disposed of quantities of pseudoephedrine-based products into RUM bins while she was doing the spring cleaning. Ms Lazarewski was challenged in cross-examination on the basis that in some of her statements provided before the hearing, she had spoken only of PSE pads while in others she had spoken of PSE pads and notebooks. 10. The Tribunal found that Ms Lazarewski was an honest witness and had no reason to doubt that in respect of her evidence that she had disposed of various items inadvertently she should be believed. It was interesting that, on cross-examination Ms Lazarewski admitted that at that time and going back to the previous owner, she and other pharmacy assistants had been in the habit of supplying pharmacist-only medications without the supervision of the pharmacist and making a record thereof unless they were too busy, in which event they were lax in not doing so. Ms Lazarewski confirmed that this procedure does not happen any longer, but Ms Lazarewski was honest enough to admit that she had done that despite now knowing that she was not authorised to provide those medications at that time. 11. Ms Lazarewski gave evidence of the change in the management and systems operating in the pharmacy between the time of the investigation and the hearing and confirmed that the assistants and other pharmacists have all been trained in and required to operate under new systems for supplying and disposing of pseudoephedrine products which are currently acceptable. The Respondent gave evidence that he had been through a mentoring program that he had learnt a great deal from the mentoring program and as a result of what he had learnt, he had changed the systems and procedures operating in the pharmacy so that the past failures could never be repeated. The Respondent was not challenged on this issue at all. 1. Ms Zwart gave evidence of the 18 occasions on which she had attended the pharmacy to mentor the Respondent in proper and acceptable pharmaceutical practices. It is clear from the early mentoring sessions that the Respondent had been slow to implement the processes and systems which were necessary, and that for a period of at least 7 sessions the mentor saw little improvement. However, in giving her evidence and in cross-examination, Ms Zwart was satisfied that there had been a significant improvement in the way that the Respondent was operating his pharmacy, and by the time that mentor session 18 had taken place and the Pharmacy Council had determined to terminate further mentoring sessions she was comfortable that it was acceptable for them to be terminated. She was cross-examined on whether she thought that the Respondent required further mentoring, to which she replied that every pharmacist could improve their knowledge and that the Respondent could benefit from a further few mentoring sessions. She suggested that quarterly sessions for two years would be appropriate in particular to ensure that Project Stop, regular auditing of S8 drugs and daily computer back up was being kept in place. 2. The Respondent then produced evidence from two pharmacists and one medical practitioner attesting to the fact that they do not believe that the Respondent was the type of person that would illicitly supply medication that could be used for non-therapeutic purposes. Two of the witnesses were cross-examined to little effect and by virtue of the knowledge and experience that the character referees had with the Respondent the Tribunal did not regard their evidence as highly significant. 3. The Tribunal was troubled by the fact that there was no evidence tendered in regard to notification by the New South Wales Drug Squad to the effect that they had received information that the pharmacy being operated by the Respondent was supplying large quantities of pseudoephedrine. The PSU embarked on an investigation into the activities of the Respondent, as a result of which the PSU recommended that the public prosecutor should be informed of the PSU investigation and should take steps to deal with the matter, and similarly, the Pharmacy Council should do the same. The Tribunal would have expected that evidence would be led of the investigation by the police, but the only evidence provided to the Tribunal was that no charges followed the police investigation, and that the Respondent was never found guilty of illicitly providing drugs for non-therapeutic purposes. 4. The Tribunal was also troubled by the fact that the matter was investigated by the Pharmacy Council and section 150 orders were put in place following that investigation. Under those orders the Respondent was suspended from practising as a pharmacist for the period from 15 November 2012 to 12 June 2013, whereafter the orders were amended to provide that he not be permitted to act as a sole pharmacist and that he undergo a mentoring program. These orders were in place from 13 June 2013 to 12 March 2014. The orders were further amended to provide that he could act as a sole pharmacist, but that the mentoring program should continue. These orders were in place from 12 March 2014 to 12 June 2014. Finally, the mentoring program was terminated on 12 June 2014 after 18 sessions and reports of those sessions being made to them. The Tribunal was concerned that the Pharmacy Council was at all times in possession of the same information that was available to the Complainant in bringing its complaint. As such, the Tribunal was concerned as to why no evidence or explanation was given to the Tribunal for the complaint being brought when the police who reported the alleged supply of drugs, investigated the matter and did not lay charges and the Pharmacy Council was itself satisfied that the Respondent was able to and acceptable to run a pharmacy as a sole pharmacist with no other restrictions on his registration which he has now been doing for since June 2014. 5. The state of the evidence leaves the Tribunal at least doubtful in making any determination as to the unaccounted for packs of pseudoephedrine- based products. The number of packs said to have been supplied to the pharmacy is available, but the actual number received and the actual number returned or disposed of as expired stock are not. In addition the number actually supplied cannot be determined due to the inadvertent disposal of some of the records however the Tribunal was concerned that the records available only accounted for a fraction of the almost 9000 packs supplied to the pharmacy. 6. To the Respondent's credit he admits that his conduct fell short of appropriate standards in relation to: 1. dispensing anabolic steroids in response to improperly written prescriptions; 2. recording supplies of pseudoephedrine based products; and 3. not storing S 8 drugs in a safe. 1. The pharmacy has since achieved QCCP accreditation. 2. It was submitted that the evidence confirms that the steroid medications were dispensed pursuant to prescriptions. The Respondent accepts that such prescriptions may have been improperly completed by the medical practitioner and that it was his responsibility to refuse to dispense the medications noted on the prescriptions. The Tribunal was not totally satisfied with this submission. 3. The issue for the Tribunal is whether it has been established that the Respondent poses a risk to the public and whether the message to be sent to the pharmaceutical profession and the need to protect the good name of the pharmaceutical profession is at risk if the Respondent is not found guilty of professional misconduct and deregistered. The evidence provided by Ms Zwart, an experienced practitioner, in conjunction with the material contained in her reports supports a finding that the Respondent is no longer operating in any way similar to the way in which he was operating at the times giving rise to this complaint. So too does the decision of the Pharmacy Council to remove all conditions from his right to practice. 4. In contrast, the Complainant has asked the Tribunal to draw inferences sufficient to demonstrate that the Respondent's behaviour at that time was so serious as to warrant his being found guilty of professional misconduct. 5. The Tribunal is not comfortably satisfied that in these circumstances it has been proven that the Respondent supplied large quantities of pseudoephedrine, testosterone and nandrolone for non-therapeutic reasons and as such cannot find the Respondent guilty of professional misconduct within the meaning of section 139E of the National Law. 6. The Respondent is however comfortably satisfied that the Respondent engaged in unsatisfactory professional conduct within the meaning of section 139B(1)(a) and section 139B(1)(1) of the National Law but that the instances of unsatisfactory professional conduct when taken together are not now sufficient to find the Respondent guilty of professional misconduct. However the Tribunal notes and wishes it to be clear that while at this time it does not believe that it would be appropriate to impose a suspension on the Respondent the Tribunal believes that at the time that the Pharmacy Council investigated the complaints against the Respondent it was necessary and appropriate for the Pharmacy Council to suspend the registration of the pharmacist for a period of time and to impose conditions on the pharmacist when the suspension ceased in order to protect the public and the good name of the pharmaceutical profession. 7. In the circumstances, the Tribunal is not prepared to cancel the Respondent's registration. 8. However, mindful of the evidence which was led by Ms Zwart, the Tribunal makes the following orders: Orders 1. For a period of two years the Respondent shall make himself available on a quarterly basis to attend mentoring sessions with Ms Zwart or such other person appointed by the pharmacy council. 2. That the mentor appointed report on a quarterly basis to the pharmacy council on the progress being made by the Respondent and that the mentor provide advice to the pharmacy council at the end of the first 12 month period as to whether the mentoring sessions should continue for a further 12 months. 3. That the Respondent pay the costs associated with the mentoring program. 4. That the Respondent pay the costs of the complaint brought by the Complainant to the Tribunal. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 07 April 2015