Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Orr [2015] NSWCATOD 124 Hearing dates: 6 October 2015 Decision date: 30 October 2015 Jurisdiction: Occupational Division Before: J Millbank, Senior Member E Frost, Professional Member R Samimi, Professional Member P French, Lay Member Decision: (1) Pursuant to s 149C(4) of the National Law, the Tribunal declares that the practitioner's registration as a Pharmacist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency would have been cancelled from the date of this order if he had been currently registered. (2) Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until at least 3 years from the date of this order. (3) The practitioner is prohibited, pursuant to s149C(5A), from providing any "health services" as defined by s 5 of the National law, until such time as a reinstatement order is made. (4) A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the names of patients A-F in the amended schedule to the complaint, and any other patient named in the course of proceedings. (5) Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or assessed. Catchwords: Pharmacy; substance abuse; misappropriation of Sch 8 drugs; falsification of drug register; impairment; failure of notification. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 64; Drug Misuse and Trafficking Act 1985 (NSW) s 12; Health Practitioner Regulation National Law 2009 (NSW) ('The National Law') s 109; s 139B; s 139E; s 140; s 141; s 149C(4), (5A), (7) Poisons and Therapeutic Goods Regulation 2008 (NSW) cl 112; cl 118 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, (1983) 60 CLR 336; Gianoutsos v Glykis [2006] NSWCCA 137, (2006) 65 NSWLR 539; In re Sood [2006] NSWMT 1; Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347; HCCC v Fraser [2014] NSWCATOD 29; Lucire v HCCC [2011] NSWCA 182; Reimers v Health Care Complaints Commission [2012] NSWCA 317; HCCC v Perroux [2011] NSWDC 99; HCCC v Litchfield (1997) 41 NSWLR 630; Prakash v HCCC [2006] NSWCA 153; HCCC v Lau [2011] NSWPHT 2; Sabag v HCCC [2001] NSWCA 411; Stanoevski v Law Society of New South Wales [2008] NSWCA 93; HCCC v Jamieson [2014] NSWCATOD 56; HCCC v Della Bruna [2014] NSWCATOD 31; Ex Parte Tziniolis (1966) 67 SR (NSW) 448; Reimers v Medical Council of New South Wales [2015] NSWCATOD 38; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320; Hocking v Medical Board of Australia & Anor [2014] ACTSC 48; HCCC v Philipiah [2013] NSWCA 342. Texts Cited: AHPRA, 'Guidelines for mandatory notifications' (2014); Pharmacy Board of Australia, 'Code of Conduct' (2014); Goiran, Kay, Nash and Haysom, 'Mandatory Reporting of Health Professionals: The case for a Western Australian Style Exemption for all Australian Practitioners' (2014) 22 Journal of Law and Medicine 209; Parker, 'Embracing the New Professionalism: Self-Regulation, Mandatory Reporting and Their Discontent' (2011) 18 Journal of Law and Medicine 456. Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Nicholas James Orr (Respondent) Representation: Counsel: A Petrie (Applicant) No Appearance (Respondent) Solicitors: Health Care Complaints Commission, F Shah (Applicant) No Appearance (Respondent) File Number(s): 1520095 Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the names of the Patients A-F in the amended schedule to the complaint, and any other patient named in the course of proceedings. Judgment Background 1. Nicholas Orr is a registered pharmacist now aged 41. 2. From March 2013 to mid-August 2013, the practitioner worked as a Pharmacist at a pharmacy in Charlestown. The practitioner left his employment with no prior notice. 3. On 23 August 2013, the practitioner's employer, Mr Gerges, contacted the Pharmacy Council of New South Wales ("the Council") via email and advised that pursuant to a periodical inventory check of the Sch 8 Drug Register at his pharmacy he noted numerous discrepancies in the balance of OxyContin of various strengths. Upon further investigation, including review of invoices and the Drug Resister concerning Sch 8 drugs received and supplied, and CCTV video footage, Mr Gerges was of the view that the anomalies were a result of the practitioner's actions. 4. On 23 August 2013, the Council requested further evidence and asked that Mr Gerges contact Pharmaceutical Services immediately. On 27 August 2013 the Council received further evidence, including relevant invoices and photocopies of the Drug Register. 5. On 3 September 2013, the Council received correspondence from Mr Orr's previous solicitors, advising that the practitioner was an inpatient at a private hospital, enclosing a letter from his treating psychiatrist confirming that he was not in a position to respond to the matters for at least two weeks. 6. On 11 September 2013, the Council resolved to impose the following conditions on the respondent's registration as a pharmacist: 1. The practitioner is not to practice as a pharmacist. 2. The practitioner is not to enter the premises of a pharmacy at which he is employed. 3. The practitioner is to notify the Council of his discharge from hospital within 1 working day of discharge. 4. The practitioner is to provide a copy of his discharge summary to the Council within 7 days of his discharge. The complaint was also referred to the HCCC for investigation.. 1. On 12 September 2013 the Council wrote to the practitioner notifying him of the conditions imposed on his registration. 2. On 24 September 2013 the practitioner was discharged from hospital. 3. On 6 November 2013 the practitioner's new solicitor wrote to the Council acknowledging the correspondence, advising of the change in legal representation and stating that Mr Orr was presently unemployed and would not seek to work as a pharmacist while the conditions were imposed. 4. On 28 November 2013 Mr Orr was admitted to hospital for removal of a benign brain tumour that had been diagnosed some years previously. 5. In June 2014 Mr Orr was admitted to hospital for mental health reasons. 6. In 2014 and 2015 Mr Orr undertook further studies in order to qualify as a teacher. The Complaint and Particulars 1. The Tribunal has before it three complaints against the Respondent: Complaint 1 That the Respondent is guilty of unsatisfactory professional conduct under s139B of the National Law in that he has: (i) engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. Complaint 2 Is guilty of professional misconduct under s139E of the National Law in that he has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of a practitioner's registration. Complaint 3 The Respondent suffers from an impairment within the meaning of s 5 of the National Law. 1. Particular 1 is that the practitioner dishonestly misappropriated the following drugs from the Pharmacy he worked at between March and August 2013: 1. OxyContin 5 mg - 34 tablets 2. OxyContin 20 mg - 20 tablets 3. OxyContin 40 mg - 206 tablets 4. OxyContin 80 mg - 476 tablets 5. OxyNorm 10 mg - 60 capsules 6. Endone 5 mg – 145 tablets 7. Targin 10 mg – 34 tablets 1. All of the other particulars flow from this central allegation. Particular 2 is that the practitioner self-administered the drugs without a prescription and contrary to s 12 of the Drug Misuse and Trafficking Act 1985 (NSW). Particular 3 is that he made false entries concerning OxyContin 40 mg in the Sch 8 Drug Register in breach of cl 112 and cl 118(1) of the Poisons and Therapeutic Goods Regulation 2008 (NSW) in that he did not record delivery of the drug on several occasions, he falsely recorded supply of the drug under a script, he failed to record prescriptions on two occasions that were actually dispensed, and on 1 August 2013 when requested to do a stock count he recorded stock on hand incorrectly. With the exception of the failure to record a prescription, and with occurrences of different dates, these are the same essential features of Particular 4 concerning OxyContin 80 mg, Particular 5 concerning OxyContin 5 mg, Particular 6 concerning OxyContin 20 mg and Particular 7 concerning Endone 5 mg. The Practitioner's Non-Engagement in these Proceedings 1. Although legally represented, the practitioner has not responded to any of the allegations made in this matter, nor has he complied with a number of requests from the HCCC for crucial information such as that concerning his health status and treatment, his treating practitioner/s, or work history. 2. In response to a request from the HCCC on 18 February 2014 concerning Mr Orr's intentions regarding his registration as a pharmacist, his current health status and prognosis and a repeated request for him to address the allegations in the complaint, Mr Orr's solicitors responded on 10 March 2014 as follows: 1. Mr Orr in due course wishes to again become a registered Pharmacist. 2. Mr Orr is presently recovering from surgery to remove a brain tumour…His prognosis is good. Mr Orr is also recovering from a diagnosis of anxiety and depression and his prognosis is good. 3. Mr Orr has been advised not to make any comment pending anticipated proceedings against him by NSW Police at which time he will provide us with instructions regarding any charges that may be preferred against him. (Bundle Two, Tab 32). 1. On 1 April 2014 the HCCC wrote to Mr Orr to advise that the additional allegation of impairment had been added to the original complaint and to ask him to address this issue. The letter also specifically requested information about his history of dependence on drugs of addiction including OxyContin, opiates and benzodiazepines while registered as a pharmacist, history of mental health diagnoses while registered and a detailed chronology of work experience. 2. On 15 May 2014 the HCCC wrote to invite Mr Orr to participate in an assessment with an expert engaged by the HCCC in order to assess whether he suffered from an impairment as defined by the National Law. 3. Mr Orr's solicitor responded to both of the above requests in a letter of 23 May 2014 which indicated that Mr Orr refused to meet with the Commission's expert and that no comment would be made concerning the complaint. 4. On 22 August 2014 the Commission sent a detailed complaint including a summary of the evidence that they relied upon to Mr Orr with an invitation to make submissions in response within the statutory time frame of 28 days. No response was received. 5. On 9 October 2014 the HCCC wrote to Mr Orr requesting details of his current treatment and support in relation to both mental health issues and drug dependence. No response was received. 6. On 29 June 2015, following service of Bundle One and Two of evidence by the HCCC, Mr Orr's solicitors wrote to the Commission as follows: We are instructed by our client that he does not wish to practice as a pharmacist in the future. Further, he does not contest the making of orders in that regard. Our client has little money. Please suggest the simplest and cheapest way for him to exit the process that has commenced against him (Bundle Two, Tab 54). 1. On 7 July 2015 the HCCC wrote to Mr Orr's legal representatives advising that they were unable to provide advice but noting that: Some of the options for [the Respondent] which may have the effect of reducing the cost of and time in the proceedings include: 1. Admitting the subject matter of the complaint in writing (filing a statement or affidavit as well as an application to NCAT setting out the proposal). Under s165H of the National Law, the Tribunal then has discretion to dispense with an inquiry. 2. Proceeding to hearing but by an ex parte enquiry where [the Respondent] decides not to participate. [The Respondent] could still file a statement or evidence but it would be a question of weight if he does not attend the hearing. If he has made admissions in writing, this could reduce the length of the hearing and the Commission's costs in the event a costs order was made in the Commission's favour (Bundle Two, Tab 54). 1. The HCCC acknowledged in this correspondence that it was possible to consider withdrawing the complaint, however, that it was not prepared to do so due to the serious nature of the allegations of misconduct and the practitioner's age. 2. On 15 July 2015 Mr Orr's solicitors wrote to the HCCC and indicated that he did not have the financial resources to become involved in the proceedings and would not be appearing in the hearing. The letter indicated that Mr Orr accepted that the Tribunal would, in all likelihood, make findings adverse to him and make orders precluding him from practising as a pharmacist. 3. On 11 September 2015 the HCCC wrote to the practitioner's solicitor indicating the protective orders it anticipated it would be seeking and noting the Tribunal's request that the respondent provide submissions concerning the orders. No response was received. 4. As a result of the lack of up to date evidence of Mr Orr's health status and drug dependence or recovery, the HCCC issued two summonses in September 2015; one to a general medical practice (GP) which had been listed as the practitioner's GP in available medical records, and one to a treating psychiatrist, Dr Robinson, listed in those records. The Evidence 1. As a consequence of the practitioner's failure to engage in the process, the hearing proceeded entirely on the basis of the uncontested evidence of the HCCC provided in Bundle One and Two and supplementary material tendered at hearing, accompanied by detailed written submissions and chronology helpfully compiled by Counsel. 2. This evidence includes a witness statement from Michael Gerges of 29 July 2014 (Bundle One, Tab 8) with a series of annexures and exhibits: comprising copies of the Drug Register; dispensing records; wholesale invoices; summary tables concerning what should have been recorded in the Drug Register concerning the relevant drugs; still images drawn from CCTV footage of the pharmacy from relevant dates; two CD Roms containing the CCTV footage; an image of empty OxyContin foil packaging referred to in the statement; and example images of the medication boxes said to be visible in the CCTV footage and stills (Bundle One, Tab 9-20). 3. The evidence also includes: a set of tables summarising the invoices, dispensings and Drug Register entries for each of the relevant drugs listed in the complaint compiled for the HCCC, accompanied by statements from the two pharmacy students responsible for compiling them; expert evidence obtained by the HCCC from Dr Anthony Samuels; Mr Orr's clinical records comprising medical records from two drug detoxification related hospital admissions in 2011 and 2013; Mr Orr's GP records from 2012-2013; an opinion from the neurosurgeon who undertook surgery on Mr Orr in 2013 and Mr Orr's PBS records from 2011-2013. 4. Further more recent material produced as a result of summons issued to the GP practice (Exhibit 7) and psychiatrist (Exhibit 8) were received at the hearing. Mr Michael Gerges 1. Mr Gerges was the owner of the pharmacy and Mr Orr's employer at the time of the matters complained of. Mr Orr worked at the pharmacy five days per week from March 2013 to August 2013. 2. Mr Gerges' statement of 29 July 2014 outlines the process that he undertook in comparing the records of medications received, dispensed and recorded in the Drug Register to determine the errors and imbalances that are the subject of Complaint One. 3. Mr Gerges confirms that the man visible in the CCTV footage and stills is Nicholas Orr and confirms that the recorded dates and times of the relevant footage, covering the period 6 July 2013 to 1 August 2013, are correct. 4. Mr Gerges states that: There is CCTV footage which shows Mr Orr removing boxes of s8 drugs from the safe and taking them into [a] location in the dispensary that it unseen and not recorded by the CCTV cameras. This section is the last bay of the dispensary. It is a small preparation bay at the back of the dispensary where we prepare Webster packs. There is a sink where compounded medications are prepared. There would be no reason for Mr Orr to go there with the s8 medications. It would be not necessary [sic] to go there if a pharmacist was dispensing medications at the counter. I found some stray OxyContin tablets in a plastic tub in the last bay of the dispensary. I could find no reason or explanation as to why they were there… I also found some empty packets of OxyContin 40 mg in the rum bin. The rum bin is a bin where old medications are discarded when the medications are out of date and customers bring in old or unused medications (Bundle One, Tab 8, paras 19-21). 1. The shortfall of OxyContin 5 mg (particular 1(a)) was 34 tablets based on the dispensary report, invoices and stock on hand count, for the period 28 May 2013 and 20 August 2013. 2. There were 20 tablets of OxyContin 20mg (particular 1(b)) missing based on the dispensary report, invoices and stock on hand count, for the period 30 May 2013 to 9 August 2013. 3. On review of the Drug Register for OxyContin 20mg, Mr Gerges found an entry under Mr Orr's initials on 20 June 2013 of 20 tablets being dispensed, although the prescription was for 28 tablets. In addition he found an entry of 31 July 2013 in which Mr Orr had recorded delivery of 28 tablets, when the invoice indicated that 56 tablets had in fact been supplied. 4. There were 189 tablets of OxyContin 40 mg missing based on the Mr Gerges' assessment of the dispensary report, invoices and stock on hand count, for the period 30 May 2013 to 9 August 2013. This was adjusted to 206 tablets missing (particular 1(c)) by the HCCC following their investigation. 5. On review of the Drug Register for OxyContin 40 mg Mr Gerges found an incorrect entry dated 14 July 2013 that Patient A was dispensed 21 tablets which was written chronologically after the entry dated 31 July 2013 and at the time of the practitioner's stocktake of the Schedule 8 safe on 1 August 2013. There is no record of a prescription being dispensed for Patient A on this date or with this prescription number. 6. On review of the CCTV footage in conjunction with an examination of the wholesale records and Drug Register, Mr Gerges noted that: (i) footage of 8 July 2013 shows Mr Orr opening a cardboard box from the wholesale supplier at the dispensary counter and one box of OxyContin 40 mg being received. This was not entered into the Drug Register; (ii) footage from 19 July 2013 shows Mr Orr unpacking the delivery of three boxes of OxyContin 40 mg. Only two boxes were entered into the Drug Register; (iii) footage from 26 July 2013 shows Mr Orr unpacking the Schedule 8 delivery and one box of OxyContin 40 mg being received. Mr Orr took the box containing the OxyContin 40mg away from the counter and returned with the empty box. There is no footage of Mr Orr putting the OxyContin 40 mg into the Sch 8 drug safe; (iv) footage from 1 August 2013 shows Mr Orr undertaking the Schedule 8 stocktake and writing a number of entries on each page of the Drug Register. 1. There were 476 tablets of OxyContin 80 mg (particular 1(d)) missing based on the dispensary report, invoices and stock on hand count, for the period 30 May 2013 to 9 August 2013. 2. On review of the Drug Register Mr Gerges noted that the practitioner, whose initials appeared against each entry, had: (i) failed to enter the invoices of receipt of OxyContin 80 mg from 31 May 2013 (28 tablets), 20 June 2013 (56 tablets), 1 July 2013 (112 tablets) and 8 July 2013 (112 tablets). In addition he had incorrectly entered information from the invoices dated 15 July 2013 in that he entered 56 tablets had been received, although the invoice stated 112 tablets had been received and on 22 July 2013 when he entered 56 tablets had been received when the invoice stated that 112 tablets had been received; (ii) made an incorrect entry dated 14 July 2013 that Patient A was dispensed 21 tablets which was written chronologically after the entry dated 31 July 2013 and at the time of the practitioner's stocktake of the Schedule 8 safe on 1 August 2013. There is no record of a prescription being dispensed to Patient A on this date or with this prescription number. 1. On review of the CCTV footage in conjunction with the invoices and Drug Register entries, Mr Gerges noted that: (i) footage of 8 July 2013 shows the practitioner open the box from the wholesaler at the dispensary counter, in which four boxes of OxyContin 80 mg are visible; (ii) footage of 15 July 2013 shows the practitioner take the unopened box from the wholesaler to the bay away from the cameras. When Mr Orr returns the box is unsealed. When the box is unpacked at the counter there are only three boxes of OxyContin 80 mg visible. The practitioner wrote in the Drug Register that four boxes were received; however the invoice states that six boxes were received. (iii) footage of 22 July 2013 shows that four boxes of OxyContin 80mg were received, however only two boxes were entered into the Drug Register by the practitioner; (iv) footage of 1 August 2013 shows the practitioner undertaking the Schedule 8 stocktake and writing a number of entries in each page of the Drug Register. 1. There were 60 tablets of OxyNorm 10 mg (particular 1(e)) missing based on the dispensary report, invoices and stock on hand count, for the period 30 May 2013 to 9 August 2013. 2. On review of the Drug Register Mr Gerges noted that the practitioner had correctly entered that the receipt of 17 boxes of OxyNorm according to the invoices, however, on 15 July 2013 he had subtracted 160 tablets from the balance entering falsely, "Error in receiving 12.7.13 … 160". 3. On review of the CCTV footage Mr Gerges noted that on 1 August 2013 Mr Orr appears to take six boxes of OxyNorm 5 mg to the back of the dispensary and come back with a strip of 10 tablets. Mr Orr then cuts six tablets off the strip and returns to the back of the dispensary. He returns four tablets to the safe. 4. Mr Gerges found a shortfall of 225 tablets of Endone 5 mg (amended to 145 tablets by the HCCC in particular 1(f)) for the period the period between 30 May 2013 and 9 August 2013. 5. On review of the Drug Register Mr Gerges noted that the practitioner: (i) entered on 5 July 2013 that he had dispensed five tablets of Endone 5 mg to a particular patient when the computer system indicated that 20 tablets had been prescribed; (ii) added 100 tablets to the balance of the Drug Register on 25 July 2013 erroneously when he had dispensed 20 tablets. The balance was shown as increased from 1,501 to 1,581 when it should have decreased to 1,481; (iii) incorrectly entered five script numbers totalling 210 tablets that had previously been entered (on 16 July 2013 and 17 July 2013). These were entered chronologically in the Drug Register, however, the practitioner duplicated these entries in the Drug Register after 31 July 2013. 1. On review of the CCTV footage in conjunction with the invoices and Drug Register Mr Gerges noted: (i) the footage of 7 July 2013 shows Mr Orr take three boxes of Endone 5 mg out of the safe and put them on the counter. He then shuts the safe, picks up the three boxes from the dispensary counter and walks away. He returns to the dispensary with no boxes of medication; (ii) the footage of 18 July 2013 shows Mr Orr walk into the second last bay of the dispensary and come out carrying four boxes of Endone. He goes into the last bay out of sight of the cameras and reappears without the boxes. 1. Mr Gerges found a shortfall of 44 tablets of Targin 10 mg (amended by the HCCC to 34 tablets in particular 1(g)) for the period 27 May 2013 to 16 August 2013. 2. On review of the Drug Register Mr Gerges noted that the practitioner: (i) erroneously entered the balance on 3 June 2013 as 120 when it should have been 148; (ii) made an entry that two boxes were received on 25 July 2013. The invoice stated that 3 boxes were received. 1. Summary tables were produced by two pharmacy students employed by the HCCC. These were based upon a review of the records of drugs received and dispensed, invoices and the Drug Register (Bundle One, Tab 42, 43). These tables largely accord with the discrepancies and errors in the Drug Register reported by Mr Gerges. Minor differences are noted above. The discrepancies as identified by the HCCC are those relied upon in the complaint. 2. The Tribunal accepts that this uncontradicted evidence is accurate and we find that it establishes Particulars 1 and 3-7 to the required standard of proof. Medical Records Concerning Mr Orr's Mental Health and Substance Abuse 1. Mr Orr's medical records comprised records of three major hospital admissions: in December 2011 for drug detoxification ("the 2011 admissions"); in August 2013 for drug detoxification ("the 2013 admission") and in June 2014 for depression and anxiety ("the 2014 admissions"). There were also copies of Mr Orr's GP records covering the period 3 January 2012 to 7 September 2015 (with a notable gap from 6 January 2012 to 14 August 2013), a brief set of notes from a psychiatrist who saw him on four occasions from 29 October 2013 to 17 March 2014, and records and an opinion letter from Dr Christie addressing Mr Orr's brain tumour. 2. For the sake of clarity this evidence is addressed chronologically, with relevant statements from the hospital and GP records interwoven, although some of the statements clearly relate to earlier conduct. 3. Taken together, this evidence based upon Mr Orr's statements to various health professionals from 2011 to 2014, clearly indicate that: (i) he had a long-standing addiction to prescription medications, and (ii) he supplied this addiction through his professional role as a pharmacist via the misappropriation of drugs from his places of employment. The 2011 Admissions 1. From 13 December to 15 December and then again from 15 December to 16 December 2011 Mr Orr was admitted to a public hospital in the Newcastle area for nausea and vomiting. He did not disclose that he was in the midst of a drug detoxification. 2. From 19 December to 29 December 2011, Mr Orr was admitted to a public hospital in Newcastle. Primary diagnosis on admission was "substance abuse and substance induced mood disorder". 3. Admission notes of 19 December 2011 record an "on going substance abuse problem" and Mr Orr losing his job due to "making mistakes" (Bundle Two, Tab 44, p 13, 17). The Initial Management Plan at the end of these notes concludes at point (v) "Pt has pharmaceutical licence. Team needs to Decide about informing the Authority" (p 18). 4. A substance use assessment also completed on 19 December 2011 notes, "Accessing pethidine/methadone via pharmacy supplies" (Bundle Two, Tab 44, p 19). 5. Nursing notes also dated 19 December 2011 which follow this assessment state: AHPRA website accessed regarding our obligations to notify of his admission. It does not appear that it is mandatory given what we know of Nicholas' behaviour. Spoke to WM Team to discuss tomorrow. (Bundle One, Tab 44, p 24) 1. Later in the file, marked with Mr Orr's patient number is an undated print out stated to be from the AHPRA website. This states that, "Practitioners, employers and education providers are all mandated by law to report notifiable conduct relating to a registered practitioner or student" (emphasis in original). This reflects the requirement of s 141 of the National Law. The document continues, "Notifiable conduct is defined as": In relation to a registered health practitioner, means that the practitioner has: • practised the practitioner's profession while intoxicated by alcohol or drugs; or • engaged in sexual misconduct in connection with the practice of the practitioner's profession; or • placed the public at risk of substantial harm in the practitioner's practice of the profession because the practitioner has an impairment; or • placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards (Bundle Two, Tab 44, p 87). 1. As will be discussed below, this definition reflects the content of s 140 of the National Law. The print out of the webpage has a hand drawn arrow from the requirement to report notifiable conduct to the definition. The first word of the first dot point of the definition is circled and linked to a handwritten annotation on the page (in what appears to be the same handwriting as the nursing record of 19 December 2011). The annotation reads, "Wife states Nicholas may have practiced whilst intoxicated but she is not sure". 2. Progress notes by a nurse dated 20 December 2011 states, "The decision was made at the multidisciplinary handover this morning NOT to notify AHPRA. I have advised Nicholas of this" (emphasis in original). 3. Progress notes dated 21 December 2011 and initialled by a team conclude, "No evidence of notifiable conduct at this time with regard to AHPRA" (Bundle Two, Tab 44, p 38). 4. Progress notes dated 22 December 2011 and initialled by a team include a numbered "plan" in which number 2 is "Discuss with [a drug and alcohol specialist doctor] about AHPRA matters on Wednesday" and a crossed out reference to another named doctor "to be asked about AHPRA matters" (Bundle Two, Tab 44, p 40, 41). 5. Discharge notes record the presenting problem as an "ex pharmacist, with a background of self administration of desvenlafaxine for depression and opioid abuse presented with symptoms of opioid withdrawal". Relevant past history recorded "opiate abuse namely pethidine, oxycontin, methadone for the past three years" (Bundle Two, Tab 43, p 22). 6. While the discharge notes describe Mr Orr as an "ex pharmacist" there are multiple indications that health practitioners involved with his care were aware that he was still registered as a pharmacist. 7. Discharge notes include a plan for a "new GP", treatment with Naltrexone and a follow up appointment with a specialist doctor from an alcohol and drug unit on 5 January 2012 ("the drug and alcohol specialist"). 8. The GP notes on 3 January 2012 record a new patient who has struggled with mood and substance abuse. The 2011 hospital admission is recorded. There is a further visit on 6 January 2012, but then there is no record of any further consultation at the GP clinic until 14 August 2013. 9. The GP records include a letter from the drug and alcohol specialist to the GP dated 5 January 2012 stating that Mr Orr had been seen that day and noting that "He is currently not working but is a registered pharmacist" (Bundle Two, Tab 47, p 14). 10. A letter from the drug and alcohol specialist to the GP dated 23 February 2012 states that Mr Orr attended a follow up with him on 24 January 2012 but that he did not attend an appointment of that day, 23 February. The letter concludes, "We need to make sure he continues to be well. Given he is a pharmacist we would need to notify the Pharmacy Board if he relapses or disappears from follow up" (Bundle Two, Tab 47, p 17). 11. There is no record of any follow up from either the GP or the drug and alcohol specialist. The next letter from the drug and alcohol specialist dated 24 September 2013, ie following the 2013 admission discussed below, states, "At our last contact in 2012 he was well and stable" (Bundle Two, Tab 47, p 18). 12. The GP record notes a consultation of 14 August 2013 in which Mr Orr requested OxyContin and Valium and was given a referral to a rehabilitation clinic. The consultation of 16 August 2013 notes, "He is a pharmacies [sic] and was apparently taking Drugs from the pharmacy" (Bundle Two, Tab 47, p 5). The 2013 Admission 1. From 19 August 2013 to 20 September 2013, Mr Orr was admitted to a private hospital in Newcastle for drug detoxification. 2. A pre-admission referral note dated 14 August 2013 records his present complaint as "Major depression – Polysubstance abuse". The comments field records: Patient states he has felt depressed all of his life. Started using amphetamines while he was at university studying pharmacy. When he became a pharmacist he changed to opioids when he got access to them. States he has been using for about 4 years now. Also drinks about 2 standard drinks a day. Will possible loose [sic] his Registration. Legal action against him (Bundle Two, Tab 43, p 12). 1. The GP referral letter dated 15 August 2013 states: He has problem with opiate dependency Currently using OxyContin 2 tablets of 80 mg a day Smoking cigarettes 15/D Keen to have a rehab at [clinic] in Sydney, He was in that clinic 20 years ago and back then they were helpful He has had an on and off problem with opioids for years He also taking Valium and Xanax to calm him down. (Bundle Two, Tab 43, p 13) 1. Admission notes dated 19 August 2013 record that the purpose of the admission is "detoxification from Opiates" and record Mr Orr as using 800 to 1,000mg of Oxycodone daily "at times. Last use at this rate 2-3 weeks ago", as well as Valium 10mg a day and Xanax 4mg a day. It was noted that he usually drank five standard drinks per day, maybe more. He had long-term depression and was taking Luvox. He had attempted six detoxifications previously. There had been a previous detoxification admission to a Sydney private hospital when he was aged 18 or 19 (Bundle Two, Tab 43, p 50-51). 2. Nursing notes later on 19 August 2013 record, "he states he has self detoxed several times, but working in a pharmacy he has always reused" (Bundle Two, Tab 43, p 52). 3. A psychiatrist's notes dated 20 August 2013 record that Mr Orr has "No GP" and that his use of Luvox and Zoloft is "self monitored" (Bundle Two, Tab 43, p 55). That note also includes specific reference to the Charlestown pharmacy which is the subject of this complaint as follows: "That's when things got really bad" Endone Oxycontin Last shift found out he was replaced. "I knew that they knew" Decided to detox. 1. This note also records that Mr Orr conceded that he had used heroin in his 20s and amphetamines in his late teens and 20s. He acknowledged using benzodiazepines "scattered throughout and recently" and had shot ketamine into his arm. 2. Another psychiatrist's notes of 21 August 2013 state, "Very limited insight into his own role in the situation" (Bundle Two, Tab 43, p 58). 3. The final diagnosis provided in the discharge summary was of Axis I opiate dependence, anxiety disorder and panic attacks, nicotine dependence, alcohol abuse and depression; Axis II, Cluster B (mainly narcissistic) traits; Axis III Meningioma. 4. The HCCC obtained a report from the Department of Health indicating all PBS prescription medications supplied to Mr Orr for the period 1 July 2012 to 30 August 2013. The only medication which appears in the period is one script of 30 Naltrexone on 28 December 2012 (Bundle Two, Tab 52). 5. The HCCC obtained notes from Dr Robinson who saw Mr Orr on four occasions in late 2013 and early 2014, including one session with his wife (Exhibit 8). The notes dated 29 October 2013 state: Police came to my house when I was in [hospital]. ? to do a drug raid? >500 tablets of oxycontin have gone missing…I think they were looking for …some evidence ..of criminal activity. Reality }} had consumed them all myself !! 1. These notes also record that Mr Orr had a pharmacy in 2003 and stated that he "got involved in drugs there". 2. Notes from a session on 17 March 2014 indicate that Mr Orr is undertaking a Dip Ed course to be a science teacher, with 1 year to go. 3. The Tribunal finds that the medical evidence from 2013 establishes Particular 2 to the required standard of proof. The Brain Tumour 1. From 28 November 2013 to 30 November 2013, Mr Orr was admitted to hospital to undergo a craniotomy to remove a right frontal meningioma first diagnosed in 2010. The progress notes of 28 November record that Mr Orr had ceased Naltrexone 14 days previously and that "D&A" would follow up about recommencement with Naltrexone. 2. Mr Orr made a good recovery. The neurosurgeon gave the opinion in a letter to the HCCC that the tumour was "high unlikely" to have had any impact upon him in terms of cognitive function or behavioural issues (Bundle Two, Tab 48). 3. The Tribunal is satisfied that the brain tumour was not a cause of the impairment or misconduct complained of. The 2014 Admissions 1. From 19 June 2014 to 18 July 2014, Mr Orr was admitted to two private hospitals in the Newcastle area, consecutively, for a period of two weeks each. He transferred from the first to the second hospital in order to be closer to home. 2. A referral letter from the GP to the first hospital on 18 June 2014 says "He is suffering from depression and anxiety…No alcohol or drugs" (Exhibit 9). 3. The first hospital admission notes record "treatment of depression symptoms and overwhelming anxiety in the context of multiple psychological stressors including recent criticism in work placement, recent history of excision of meningioma and de-registration as a pharmacist (secondary to poly-substance dependence)". 4. The second hospital admission notes "major depression and anxiety in the context of major losses secondary to past substance abuse and narcissistic personality traits exacerbated by meningioma few months before" (Exhibit 9). Dr Anthony Samuels, Psychiatrist 1. Dr Anthony Samuels provided an expert report for the HCCC, dated 29 July 2014, based upon the materials in the two bundles of evidence. 2. Dr Samuels concluded that in his view Mr Orr has an impairment as defined by the National law. He based such conclusion on the fact that the practitioner had a long history of poly-substance abuse dating back to his early adult years involving opiates, amphetamines and alcohol. 3. Dr Samuels concluded that there is a risk of relapse as the practitioner's addictions are longstanding. 4. Dr Samuels concluded that the practitioner's issues had been: [P]resent since the age of 18 suggests considerable lack of insight and judgement. In addition, pursuing his academic studies, his pre-registration requirements and ultimately working as a pharmacist without attempting to deal with these issues is, in my opinion, unacceptable professional behaviour. Had he not been discovered misappropriating drugs from his workplace this behaviour very likely would have continued, placing patients and colleagues as well as himself at risk. His failing to bring these problems to the attention of the New South Wales Pharmacy Council, Pharmacy Board of Australia and AHPRA despite being ethically and morally required to do so raises concerns in regard to his character (Bundle One, Tab 22). 1. Dr Samuels further concluded in his report that, "There is a criminal element to his behaviour which raises further concerns in regard to his character and capacity for ethical behaviour". 2. Dr Samuels notes that para 6.3 of the Code of Conduct for pharmacists requires among other things, that practitioners comply with statutory reporting requirements and if they are aware of a health condition which could adversely affect their performance comply with para 9 which relates to practitioner health. Para 9 sets out detailed steps for care, supervision, follow up and reporting. Dr Samuels notes that Mr Orr "breaches almost all of these". Relevant Law 1. The standard of proof is the civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. By reason of the seriousness of the allegations and the gravity of the consequences the Tribunal must be comfortably satisfied that the matters in the complaint have been established. 2. The use of "comfortably satisfied" does not imply that proof to a higher standard than the balance of probabilities is required: Gianoutsos v Glykis (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal in In re Sood [2006] NSWMT 1 at 10. 3. At common law there are only two standards of proof, the civil standard of proof upon a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [31]. The Briginshaw standard is not a third standard of proof. Rather, it is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard. 4. The professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238]. 5. The Tribunal must make findings for each particular (except those conceded in writing: s 165H National Law), and then determine whether those findings amount to proof on the balance of probabilities of the complaint: Lucire v HCCC [2011] NSWCA 182 per Basten JA at [43]. 6. 'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. 'Professional misconduct' is defined in section 139E of the National Law as: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. 'Impairment' is defined by s 5 of the National Law as: a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect… the person's capacity to practise the profession. 1. Conduct complained of in professional disciplinary proceedings may be the basis of both a finding of misconduct and of impairment: Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [11]-[14]. 2. In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. 3. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 4. As observed by Basten JA in Prakash v HCCC [2006] NSWCA 153 at [91], and applied by the then Pharmacy Tribunal in HCCC v Lau [2011] NSWPHT 2: The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards...of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted. 1. Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. 2. Past cases referred to the determination of whether the practitioner is "permanently unfit to practice" in making an order for de-registration: Stanoevski v Law Society of New South Wales [2008] NSWCA 93 at [52]-[54]. More recent consideration of these cases clarify that an undue focus on the word "permanent" is a gloss. It is demonstrated current unfitness, not a determination of probable permanent unfitness, that is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; HCCC v Della Bruna [2014] NSWCATOD 31. 3. A prohibition order can only be made if the Tribunal either suspends or cancels a practitioner's registration under s149C(2) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law. It is then open to the Tribunal to consider imposing a prohibition order. The National Law states that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a prohibition order under s149C(5) or (5A). Findings and Reasons 1. The evidence, taken together, is that the practitioner suffered from a very serious and long standing drug addiction, primarily to opiates, although his various medical diagnoses are of "polysubstance" abuse and dependence, which is also the framing of Complaint 3. 2. The practitioner, although not defending the proceedings at hearing, and not contesting the evidence or proposed orders sought by the HCCC through written submissions, did not at any time concede any of the complaint. The Tribunal is therefore obligated to make a finding on every particular and then determine whether the complaints are made out. 3. All of the particulars are made out to the required standard and we find all three complaints proved. We find that the conduct detailed in the particulars constitutes unsatisfactory professional conduct of such severity and repetition that it would justify deregistration and is professional misconduct. The misappropriation of substantial quantities of Sch 8 drugs from his place of employment, which Mr Orr had access to by virtue of his registration as a pharmacist, must be characterised as professional misconduct of the most serious kind, as is his falsification of Sch 8 records to cover up this theft. Complaints One and Two are upheld. 4. The practitioner pursued this misconduct in the service of his drug addiction. We find that this drug dependence was an impairment as defined by s 5 of the National Law. Complaint Three is upheld. 5. The absence of complaint about Mr Orr's professional practice in that period does not mean that members of the public were not placed at risk, or indeed actually harmed, through his failure to adhere to professional standards. The Drug Register indicates that some patients were not provided with the total quantity of medications prescribed. Mr Gerges' evidence of an empty OxyContin packet and "stray" tablets, alongside the sheer volume of drugs that Mr Orr admitted to treating practitioners that he was consuming in 2013, render the conclusion that he was practising while intoxicated inescapable. 6. Having found that Mr Orr was impaired, and that he committed misconduct related to that impairment, the Tribunal must, in the absence of evidence to the contrary, assume that the risk that Mr Orr posed to the public in his professional practice as a pharmacist in 2013 is continuing to the present moment. As the Court of Appeal noted in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 at 6 (although speaking of a practitioner in defended proceedings): No explanation was offered by the doctor which made it unlikely that the conduct would occur again. Moreover there was nothing to suggest that the doctor had become a changed person during the 4 years since the last of the incidents. …In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461: "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man". 1. Because of the practitioner's failure to engage in these proceedings, including his refusal to co-operate in the provision of information about his health, we have no evidence as to his current recovery or remission from drug addiction (or his response to any further relapses). Further the practitioner did not submit himself to an assessment by the HCCC expert. The lack of current information means we must rely upon the state of evidence we have before us as the practitioner has not displaced it. 2. An impairment comprising substance abuse, particularly opiate dependence, is a very serious issue for any professional, but much more so for health professionals who have both regular access to such drugs and the professional responsibility for their administration to patients. A drug addicted pharmacist must be considered, by virtue of their daily professional life involving the constant exercise of care and skill in the management, recording and provision of drugs, to be at particular risk of relapse. 3. In the matter of Reimers v Medical Council of New South Wales [2015] NSWCATOD 38, the Tribunal concluded [at 53]: Drug addiction is a serious matter for any person, and is especially so for medical practitioners for reasons which are so obvious that it is not necessary to state them. That Tribunal went on to note an earlier decision of the New South Wales Court of Appeal concerning a solicitor who had suffered a heroin drug addiction, Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320, in which members of the Court of Appeal drew attention to the danger of relapse and stated [at 28]: Once a person has been an addict, the best that could be expected is to look to see a person with the willpower to know when to see the red light, when to seek appropriate professional help in time of great stress and pressure, and to seek that help and abide by the advice that is given. 1. It is of particular concern to this Tribunal that Mr Orr demonstrated such deep reluctance to seek any such help in the past. Both the 2011 and 2013 hospital admissions and drug detoxifications took place as a direct result of Mr Orr losing access to his opiate supply by virtue of losing his job as a pharmacist. At the time of his 2011 admission he stated he had previously self-detoxed six times, ie without professional assistance or on-going support. 2. It is also clear from the medical evidence that Mr Orr has struggled with longstanding mental health issues, primarily depression and anxiety. It may be that these have contributed to, or that they have been exacerbated by, his substance abuse. While it is a positive sign that Mr Orr sought assistance for an acute mental health episode in mid-2014 it is a source of concern that he did not disclosure this hospital admission, nor provide any information concerning on-going treatment or recovery. 3. Properly treated and supported there is no reason why manageable mental health conditions such as anxiety and depression would, in and of themselves, be considered an impairment that "detrimentally affects or is likely to detrimentally affect" professional practise. However there is little evidence to suggest that Mr Orr has sought, or sustained, treatment for these conditions in the medium or long term, outside of his hospital admissions. Indeed he both self-selected and consumed anti-depressant medication and benzodiazapams without prescription and for a period of 18 months in 2012 and 2013 "self monitored" anti-depressant medication that appears to have been prescribed, at least initially, by a doctor. 4. It appears that Mr Orr did not avail himself of follow-up mental health or addiction recovery services following the 2011 admission and did so only on a very limited basis after the 2013 admission. There are many letters of referral to psychologists and psychiatrists in the GP records, with no indication that these referrals were acted upon. Although Mr Orr did see Dr Robinson on four occasions this ceased when Mr Orr not appear for follow-up appointments. Mr Orr also failed to appear for at least three recorded follow-up appointments with the drug and alcohol specialist in 2012 and 2013. 5. The Tribunal must therefore conclude that Mr Orr's impairment is a continuing one that is likely to detrimentally affect his capacity to practise, and that he lacks any insight into his professional obligations concerning such impairment. 6. The practitioner failed to advise of his 2014 hospital admissions in the course of these proceedings. The HCCC only became aware of the 2014 admissions pursuant to documents produced via Summons to the GP in September 2015. 7. At no point in his training, registration or annual re-registration did the practitioner notify the Pharmacy Board of the mental health issues or the substance abuse issues that he was experiencing, including, but not limited to, his hospital admissions for drug detoxification. Specifically, s 109(1)(a)(i) of the National Law requires that an annual application for renewal of registration include a statement by the practitioner that he or she does not have an impairment. In his 2012 and 2013 renewals Mr Orr did not make such declaration following his 2011 diagnosis and treatment. 8. In his expert report Dr Samuels notes this breach of professional obligations and lack of insight on Mr Orr's part and adds, Today there is a great deal of publicity, information and teaching provided by Health Professional bodies in regard to impairment, and substance misuse is especially relevant in the context of practise as a Pharmacist (Bundle One, Tab 22, p 12). 1. It was not only Mr Orr who did not recognise and react to this risk. A marked feature of this case is that on the occasion that Mr Orr did seek professional assistance for drug detoxification in 2011, prior to the events complained of, none of the many health professionals he came into contact with undertook a notification to AHPRA. 2. While we do not seek to single out individual health practitioners for criticism in this decision, we strongly believe that the failure to make a notification concerning Mr Orr's condition and conduct in 2011 is indicative of a failure to understand, or properly implement, the mandatory notification provisions in the National Law. 3. While the National Law had only been in place in NSW since 1 July 2010, a similarly worded mandatory notification obligation in NSW law from 1 October 2008 (that only covered the reporting of doctors by other doctors) was in fact the precursor to this provision. [1] Multiple references in the 2011 admission notes and GP records, discussed above at [61] to [74], including a print out from AHPRA placed on Mr Orr's patient file, clearly demonstrate that both doctors and nurses were aware of the provision. 4. Section 141 of the National Law makes it mandatory for a registered health practitioner who, in the course of practising the first health practitioner's profession, forms a reasonable belief that another registered health practitioner has behaved in a way that constitutes "notifiable conduct" to notify the National Agency. The exceptions provided in s 141 relate to health practitioners who form such a reasonable belief in the course of professional indemnity or insurance assessments, providing legal advice or services, or quality assurance measures authorised under the Act. While Western Australia includes a specific exception for a health practitioner who forms such a reasonable belief in the course of treating a patient who is a health practitioner, NSW does not have such an exemption. 5. Section 140 defines "notifiable conduct" as meaning that the practitioner has: (a) practised the practitioner's profession while intoxicated by alcohol or drugs; or (b) engaged in sexual misconduct in connection with the practice of the practitioner's profession; or (c) placed the public at risk of substantial harm in the practitioner's practice of the profession because the practitioner has an impairment; or (d) placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards. 1. While the public must be placed at "risk of substantial harm" by reason of impairment in (c), they must only be placed "at risk of harm" by virtue of unprofessional conduct in (d). The standard is not future focused: it is expressed in the present and past tenses. 2. The 2011 admission record in which these provisions were printed out and annotated by hand refer only to (a) concerning practise while intoxicated, and only refer to asking only his wife about it, not Mr Orr himself. 3. AHPRA 'Guidelines for mandatory notifications' provide the following guidance for practitioners on what "reasonable belief" means: For practitioners reporting notifiable conduct, a 'reasonable belief' must be formed in the course of practising the profession. The following principles are drawn from legal cases which have considered the meaning of reasonable belief. 1. A belief is a state of mind. 2. A reasonable belief is a belief based on reasonable grounds. 3. A belief is based on reasonable grounds when: i. all known considerations relevant to the formation of a belief are taken into account including matters of opinion, and ii. those known considerations are objectively assessed. 4. A just and fair judgement that reasonable grounds exist in support of a belief can be made when all known considerations are taken into account and objectively assessed. A reasonable belief requires a stronger level of knowledge than a mere suspicion. Generally it would involve direct knowledge or observation of the behaviour which gives rise to the notification, or, in the case of an employer, it could also involve a report from a reliable source or sources. Mere speculation, rumours, gossip or innuendo are not enough to form a reasonable belief. A reasonable belief has an objective element – that there are facts which could cause the belief in a reasonable person; and a subjective element – that the person making the notification actually has that belief. A notification should be based on personal knowledge of facts or circumstances that are reasonably trustworthy and that would justify a person of average caution, acting in good faith, to believe that notifiable conduct has occurred or that a notifiable impairment exists. Conclusive proof is not needed (2014 edition, p 5-6). 1. As a specific observation we would regard it as incumbent upon a health practitioner who was in the process of formulating a reasonable belief to inform him or herself directly. The practitioners concerned with Mr Orr in 2011 were aware from his self-report that he had been working as a pharmacist and taking long acting forms of opiates such as methadone and OxyContin. The appropriate person to ask about his intoxication during practise was not Mrs Orr. 2. On a more general level we observe that a self-report from a pharmacist of an opiate addiction over many years which was supplied through their professional practice at a pharmacy should surely be taken as prima facie evidence of both an impairment under (c) and conduct well below the professional standard under (d). Indeed if circumstances such as these do not give rise to a reasonable belief of notifiable conduct under s 141, it is hard to know what purpose the provision serves at all. 3. Even if treating practitioners thought that they were protecting the health and wellbeing of a vulnerable patient by not notifying Mr Orr while he was an in-patient receiving treatment, they should surely have done so when he was discharged and did not attend follow-up appointments. That at least two medical practitioners were on notice of the risk posed to the public and their own obligations to take action is manifest in the letter from the drug and alcohol specialist to the GP referred to in para 74 above. It bears repeating that the final line of this letter, which appears to have prompted no follow up care or action at all, was, "We need to make sure he continues to be well. Given he is a pharmacist we would need to notify the Pharmacy Board if he relapses or disappears from follow up". 4. In Hocking v Medical Board of Australia & Anor [2014] ACTSC 48 at [148] Murrell CJ said of s 141 of the National Law (as operative in the ACT) that it: is designed to require practitioners to make complaints that may, upon further investigation, be shown to be warranted and to ensure that practitioners do not adhere to a code of silence in relation to significant misconduct by other practitioners. The provision gives effect to the s 3(2)(a) objective of protection of the public. 1. Some commentators have expressed concern about treating practitioners notifying their own patients on the basis that this may inhibit impaired health practitioners from seeking treatment. The very low proportion of mandatory notifications made by treating practitioners since the inception of the National Law suggests that many doctors may feel the same way. [2] 2. However this case surely stands as proof of the reverse; in that a failure to notify actually inhibited this impaired practitioner from being provided the supervision, monitoring and treatment that could have helped him, and may even have prevented the events that ultimately led to these disciplinary proceedings. 3. We suggest that the "code of silence" prevailed in this instance, to the detriment of both the public's safety and the practitioner's health and professional standing. 4. The severity of the impairment and misconduct that are the subject of these complaints from 2013 mean that deregistration of the practitioner is the only appropriate order to protect the public. 5. Mr Orr's failure to take any responsibility for his professional misconduct was a clear theme that emerged from his medical records, and was also evidenced by his non-engagement in these proceedings. 6. A period of three years before Mr Orr can re-apply for registration is required because anything less would not enable the Tribunal to be satisfied that the practitioner had addressed the issues as identified in this decision. 7. The misconduct as proved relates to Sch 8 medications. However the medical records indicate that the practitioner also took a variety of Sch 4 and 4 D medications over many years. The list of medications in the available records includes: desvenlafaxine, pethidine, OxyContin, methadone, Valium, Xanax, Ketamine and amphetamines. There was no evidence that Mr Orr held prescriptions for any of those medications. 8. The long standing nature of Mr Orr's addiction, and the absence of evidence concerning his recovery, means that we must conclude that both he and the public would be placed at substantial risk of harm if Mr Orr were to undertake any form of health practice that involved access to opiates, benzodiazepines, or even codeine. The evidence shows that Mr Orr switched to different drugs at different times depending upon their accessibility in the context of his employment. There is therefore no safeguard provided by limiting his access to any particular drug. 9. We therefore consider that a prohibition order is also necessary as the high standard of a 'substantial risk to the health of members of the public' is met. This prohibition order is not intended to be punitive. Costs 1. The HCCC case is wholly proved and they are entitled to their costs in these proceedings from Mr Orr. 2. In addition the HCCC undertook these proceedings with efficiency, while providing every opportunity to the practitioner to respond to the complaint and be guaranteed of procedural fairness in the conduct of its case. When the HCCC was made aware that the practitioner would not be appearing, it acted responsibly to reduce costs by vacating two of the scheduled hearing days, while still providing an opportunity for Mr Orr to respond in writing to the proposed orders sought. 3. Mr Orr, in contrast, increased costs by not providing details of his treating health practitioners such that summonses were issued in order to obtain up to date information. 4. While the Tribunal has a wide discretion as to costs, this discretion must be exercised judicially, and cannot, for example, take into account the financial hardship of the practitioner: HCCC v Philipiah [2013] NSWCA 342 at [44]-[46]. Orders: 1. Pursuant to s 149C(4) of the National Law, the Tribunal declares that the practitioner's registration as a Pharmacist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency would have been cancelled from the date of this order if he had been currently registered. 2. Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until at least 3 years from the date of this order. 3. The practitioner is prohibited, pursuant to s149C(5A), from providing any "health services" as defined by s 5 of the National law, until such time as a reinstatement order is made. 4. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the names of patients A-F in the amended schedule to the complaint, and any other patient named in the course of proceedings. 5. Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or assessed. Endnotes 1. The Medical Practice Amendment Act 2008 (NSW) inserted a new s 71A(1) into the Medical Practice Act 1992 (NSW). See discussion in Nick Goiran, Margaret Kay, Louise Nash and Georgie Haysom, 'Mandatory Reporting of Health Professionals: The case for a Western Australian Style Exemption for all Australian Practitioners' (2014) 22 Journal of Law and Medicine 209 at 212. 2. Goiran et al, ibid. For the contrary position see: Malcom Parker, 'Embracing the New Professionalism: Self-Regulation, Mandatory Reporting and Their Discontent' (2011) 18 Journal of Law and Medicine 456. 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: 30 October 2015