Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Contractor [2015] NSWCATOD 126 Hearing dates: 12 - 15 October 2015 Decision date: 10 November 2015 Jurisdiction: Occupational Division Before: O Shub, Principal Member E Frost, Professional Member J Zwart, Professional Member B Higgins, Lay Member Decision: The Tribunal finds the Respondent guilty of Professional Misconduct pursuant to section 139E of the National Law and made the following orders: (a) The Respondent's registration is cancelled for a period of two years. (b) The Respondent is not permitted to seek a review of the order for cancellation for a period of two years. (c) The Respondent pays the Commission's costs. Catchwords: Pharmacist, Unsatisfactory Professional Conduct, Professional Misconduct, Dispensing Private Prescriptions as PBS Prescriptions, Stealing money from employer, Dispensing Schedule 8 drugs without valid prescriptions, dispensing Schedule 8 drugs without checking prescriptions and authenticity. Legislation Cited: Health Practitioner Regulation National Law, NSW Poisons and Therapeutic Goods Regulation Cases Cited: Sudath v HCCC [2012] NSWCA 171 Lindsay v HCCC [2010] NSWCA Briginshaw v Briginshaw [1938] HCA 34; (1938) CLR 336 HCCC v Ng [2012] NSWPHT 1 HCCC v Karalasingham [2007] NSWCA 267 per Basten JA Chowdery [2010] NSWMT 13 Medical Tribunal HCCC v Litchfield (1997) 41 NSLR 630 Qidwai v Brown (1984) 1 NSLR 100 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 HCCC v Randall Kelly Mott [2012] NSWMT 9 HCCC v Lau [2011] NSWPHT 2 NG [2010] NSWPHT 2 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Clyne v New South Wales Bar Association (1960) 104 CLR 186 HCCC v Dr Della Bruna [2014] NSWCATOD 31 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Lee v Health Care Complaints Commission [2012] NSWCA 80 Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 Health Care Complaints Commission v Gordony-Novak [2011] NSWMT 3 Ex Parte Lenehan [1948] HCA 45 (1948) 77 CLR 403 The Prothonotary of the Supreme Court of New South Wales v Richard (Court of Appeal, 31 July 1987 unreported) Health Care Complaints Commission v King [2013] NSWMT 9 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Neville Soli Contractor (Respondent) Representation: Counsel: P Dwyer (Applicant) Solicitors: Health Care Complaints Commission (Applicant) P Tudehope (Respondent) File Number(s): 1420324 REASONS FOR DECISION Background 1. The Respondent in this matter is Neville Soli Contractor. He is a registered pharmacist and was employed at the SuperChem Blacktown to perform duties as a pharmacist. He began his employment in March of 2010, with his duties including the responsibility for the day to day operations of the pharmacy, including preparing the cash registers and compiling the takings at the completion of the day's trading, and dispensing various medications to customers. 2. All prescription medication supplied through a pharmacy is either dispensed under the Pharmaceutical Benefits Scheme (PBS), or is a private prescription. If the prescription is PBS, the Federal Government sets the price for the medication and the amount is considerably lower than the recommended retail price of a private prescription. The indication as to whether the prescription is either PBS or private is determined by the issuing doctor listed on the prescription for presentation at a pharmacy. In the case of the medication known as Oxycontin, the private cost for a packet of 28 x 80mg tablets is $110 retail. The price in 2011 for a General patient was $34.20 and for a Concessional patient was $5.60 retail. Oxycontin is a listed drug of addiction and is sold for between $30 and $100 per tablet on the street. 3. On the 9th of August 2011 a prescription was presented to the Respondent for 84 tablets of 80mg Oxycontin medication which was marked as a private prescription (non PBS). The Respondent dispensed the medication which includes fixing a small sticker to the actual paper prescription and another to the box containing the medication that is supplied to the customer. The information on the sticker includes the prescription number, the date of dispensing, the amount the customer is charged, whether the prescription is PBS or private and the initials of the dispensing pharmacist. 4. The Respondent supplied the medication to the customer and recorded the transaction through the point of sale cash register for an amount of $5.60. Later that day, the relieving pharmacist commenced working at the SuperChem Pharmacy to relieve the Respondent. Shortly after the Respondent had left for the day, the relieving pharmacist commenced filing prescriptions that had been dispensed earlier. He noticed the prescription that the Respondent had dispensed earlier was marked as private, however the Respondent had only entered in the cash register the PBS amount of $5.60. This was reported to the owner of the pharmacy. The owner of the pharmacy contacted the Respondent by phone and questioned him in relation to the transaction. The Respondent could not offer an excuse that satisfied the owner, as a result of which the owner terminated the Respondent in the first week of September 2011. This led to a full investigation in respect of the supply of Oxycontin by the Respondent which led to a prosecution by the police and this complaint. 5. As part of the Respondent's duties at the pharmacy, the Respondent was responsible for the management of the Register of Drugs of Addiction on the days on which he was the pharmacist on duty. All Schedule 8 medications received and or dispensed are to be recorded and signed off by the receiving or dispensing pharmacist on the day on which they are received or dispensed. This register is reviewed by the New South Wales Department of Health and is the official ledger for management of all records relating to drugs of addiction including Oxycontin purchased and later dispensed through the pharmacy. After the Respondent was terminated, it was found that this register was missing and has never been recovered. 6. An extensive review of the closed circuit television (CCTV) during other transactions dispensed by the Respondent for Oxycontin medication shows the Respondent accepting much larger amounts of money than the amount the Respondent had entered into the point of sale computer system for these transactions. The investigation also indicated that the Respondent failed to comply with the legislative requirements in respect of the dispensing of Schedule 8 drugs in that he provided Schedule 8 drugs to various patients on prescriptions which were either forged, altered or where prescriptions were presented by one patient in three different names. The matter went before the Pharmacy Council of New South Wales, as a result of which various restrictions were placed on the Respondent's registration. The restrictions on the pharmacist's practice are as follows: 1. The practitioner is not to possess, supply, dispense, administer or manufacture Schedule 8 drugs; 2. The practitioner is not to work in a pharmacy as the pharmacist in charge; 3. The practitioner may be on the premises of a pharmacy at which he is employed during opening hours only, and whilst another employed pharmacist is on the premises; 4. The practitioner is to notify his employer and the pharmacist in charge of the pharmacy in which he is employed of the conditions on his registration within seven days of the conditions being imposed, and within seven days of commencing new employment; 5. The practitioner is to notify the Pharmacy Council of New South Wales of any change of employment within seven days of any such change. 1. In the criminal prosecution brought against the Respondent, the Respondent pleaded guilty to various counts and denied others. He was found guilty of the counts in respect of which he admitted his guilt and was sentenced to an 18-month good behaviour bond. 2. At the commencement of the hearing, the Applicant indicated that the Applicant and Respondent had reached agreement in respect of various aspects of the matter which would necessitate an amendment to the complaint brought by the Applicant. The Applicant sought an adjournment to prepare an amended complaint and the Respondent sought an adjournment to provide affidavit evidence. The matter was adjourned to the 15th of October 2015. An amended complaint was served on the Respondent and filed with the Tribunal on the 13th of October 2015 which forms the basis of this complaint. An affidavit by the Respondent was served on the Applicant and filed with the Tribunal on the 14th of October 2015. 3. The hearing resumed on 15 October 2015, at which time the Applicant closed its case and provided written submissions. 4. The Respondent opened its case and tendered an affidavit by the Respondent which was accepted by the Tribunal. In opening, the Respondent's solicitor advised the Tribunal that the Respondent admits that he is guilty of unsatisfactory professional conduct as set out in Complaint Two (i) and (ii). He also admitted he is guilty of professional misconduct as set out in Complaint Three (i) and (ii). Finally, the Respondent's solicitor advised the Tribunal that the Respondent accepts that the circumstances listed in the particulars to Complaint Four may support a finding that he is not a suitable person to hold registration as a pharmacist. 5. The Respondent closed its case. SUBMISSIONS Applicant's Submissions 1. The Applicant submitted that the complaints as admitted by the Respondent have therefore been proved, and insofar as Complaint Four is concerned, submitted that the circumstances do permit the Tribunal to reach a conclusion that the Respondent is not a suitable person to hold registration as a pharmacist. 2. The submissions provided by the Applicant included submissions on the general principles relating to Tribunal hearings and the standard of proof which are well known and which are accepted practice. The Tribunal accepts that it must be comfortably satisfied that the particulars of a complaint have been established. The Applicant supplemented its written submissions by indicating that it accepts that paragraphs 16 to 19 of the Respondent's affidavit do demonstrate that he has shown some insight, but that he would need to undergo ethical courses, mentoring, counselling, etc., before considering an application for re-registration. 3. The Applicant completed its submissions. Respondent's Submissions 1. The Respondent took the Tribunal to the affidavit and in oral submissions indicated that the Respondent has been a pharmacist for a considerable period of time, which he accepts can cut both ways. The Respondent should know what he has to do and not offend. On the other hand, the Respondent's submissions were that he has been a successful and good pharmacist in the past and would be again. At one stage he had three pharmacies and his world came crashing down in 2009 with the Global Financial Crisis and the attitude of the API (his wholesaler). 2. He submitted that people deal with issues in different ways. In his case it wasn't just a loss of money but he lost everything, his friends, the respect of his family, all of his family, now his father and mother do not talk to him, his brother and sister barely talk to him, and his relationship with his wife is shattered. He reached the bottom of his life when he committed the offences and was charged, which brought down the final depression. 3. He submitted that one should look at his conduct not only in isolation but the circumstances which led to his conduct to steal and the other conduct alleged against him. 4. In those circumstances he does not want to suggest that his conduct was not serious, it was very serious. However he asked the Tribunal to see that in the light of where he had found himself. He is immensely sorry, not only because of the effect it has had on him, but his profession, his family and the public. It was submitted that he was even ashamed to go and see a doctor about his ever-deepening depression. His shame has led to his being unable to deal with it for a very long time. He stated that he is desperately sorry and is remorseful. The Respondent accepts that the principal factor that drives the Tribunal is protection of the public and partly as a deterrent. He submitted that the circumstances are such that the Tribunal can be perfectly confident that as far as deterrence is concerned, there will never be another occasion that he offends in a criminal sense, or shows such deplorable methods of operation. 5. In regard to general deterrence the Tribunal should take into consideration the personal circumstances of the man and the position in which he found himself. It was submitted that if the Tribunal is minded to cancel his registration then in all the circumstances the period should be shorter than that sought by the Applicant. The Respondent has already been punished, been charged, has a criminal record and is financially and personally devastated. 6. The Respondent also accepts that if there is a cancellation of his registration then he must undergo ethical training courses, counselling and mentoring. The Respondent submitted that he is a man who is a tragedy, a good pharmacist who has been brought down by these circumstances. Applicant's Submissions in Reply 1. The Applicant submitted that it is very sad to see this man in these circumstances, however, submitted that the Tribunal cannot be satisfied that the public or the profession does not still require protection. The Applicant submitted that while the affidavit may indicate that the Respondent is aware of his wrongdoing, the Respondent has done nothing from 2011 to demonstrate that he has taken steps to rehabilitate himself, and that two years is not an unreasonable period of time to do so. Tribunal's Consideration 1. The Tribunal had regard to the documents provided in Exhibit 1, to the affidavit provided by the Respondent and the submissions made by the Applicant and the Respondent. 2. Included in the papers to the presiding magistrate at Blacktown Local Court dated 22 January 2013 and found in the papers at tab 14 of exhibit 1, was a letter written by Mr Rishad Contractor to the presiding magistrate at Blacktown Local Court dated 20 January 2013, both attesting to the remorse which the Respondent had and an apology for his actions. The letter from the Respondent's brother indicates that the Respondent has demonstrated deep remorse at what had happened, that he is a very generous person who always looks out for other people, donates to charities, holds lunches for the disadvantaged and elderly people of the local area which is something that they look forward to each year. He indicated that the Respondent is a loving father and devoted husband, and that this event was something out of character. He described the Respondent as a good, decent, hardworking man who is well respected by his friends and family. 3. In addition, there was a letter to the magistrate from the Respondent expressing his deep regret and remorse. 4. The Tribunal also had regard to the affidavit filed by the Respondent and the submissions made on his behalf by his solicitor in which he set out the history behind his financial difficulties, his anxiety and his depression. In paragraphs 16 to 19 the Respondent sought to inform the Tribunal of the Respondent's remorse, regret and insight. In considering appropriate orders, it was necessary for the Tribunal to consider the matter in its overall position and in that regard the Tribunal came to the following conclusions. 5. In respect of Complaint One, the Respondent had already been found guilty in a court and was sentenced to a good behaviour bond for 18 months. The Tribunal found this complaint proven. 6. In respect of Complaints Two and Three, the Tribunal had to consider the seriousness of the conduct on the part of the Respondent and to determine whether it was unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration under section 139E(a) and/or whether there was 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 under section 139E(b). The Tribunal found these complaints proven. 7. The Tribunal accepted that the definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances: HCCC v Karalasingham [2007] NSWCA 267 per Basten JA at [67], cited in Chowdery [2010] NSWMT 13 Medical Tribunal, at [12]. 8. In addition, the "seriousness" of unsatisfactory professional conduct is to be measured by the extent to which it departs from proper standards: HCCC v Litchfield (1997) 41 NSLR 630 at 638. "Misconduct in a professional respect" means conduct that incurs the strong reprobation of colleagues of good repute and competence. Frequently, such conduct involves "moral turpitude", but it need not do so: Qidwai v Brown (1984) 1 NSWLR 100, per Preistley JA at 104. For example, conduct that is not a deliberate departure from accepted standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner may constitute "misconduct in a professional respect": Pillai v Messiter (No 2) (1989) 16 NSWLR 197, per Kirby P at 200, cited in Chowdery [2010] NSWMT 13 Medical Tribunal at [13]. 9. The Respondent has not sought to argue that his conduct does not amount to unsatisfactory professional conduct or professional misconduct, and did not challenge the findings of the independent expert, Mr O'Donnell, whose reports were available to the Tribunal in Exhibit one, that the conduct admitted fell substantially below the standard required and invited his strong criticism. 10. The Tribunal was of the view that the criminal offending for which the practitioner was dealt with at Blacktown Local Court on 1 February 2013 was enough in itself to amount to unsatisfactory professional conduct, and professional misconduct. In sentencing the Respondent for seven offences, the learned Magistrate acknowledged the seriousness of the offence when he commented that this was the sort of fraud that if the Respondent had had a previous history of anything of the kind, he could easily have seen him sentenced to a period in jail (Vol 1, T 15, p 4). 11. The amount that the Respondent has admitted to misappropriating is significant. His conduct involved a grave breach of the trust of his employer. It was conduct that was difficult to detect and might have continued if not for a chance observation by a relieving pharmacist. When contacted by the owner of the pharmacy after the discrepancy was discovered, the Respondent did not admit his wrongdoing, but rather lied to his employer, Mr Pirone (Vol 1, T 3, p8 – Statement of Ernesto Pirone). Approximately one week after the event, the Respondent sent a text message to Mr Pirone, again denying that he had committed any wrong doing. The text message read: "Whatever I am supposed to have done I am sure we can sort it out" (Vol 1, T 3, p9- Statement of Ernesto Pirone). 12. In relation to the Respondent's actions in entering into the system the PBS price for private prescriptions, the Tribunal was of the opinion that the conduct was significantly below the standard expected of a practitioner of equivalent training and expertise. 13. The Tribunal then considered the additional aspect of the Respondent's conduct in dispensing Oxycontin to patient's on prescriptions which appeared to be forged, altered or fraudulently obtained contrary to clause 86 of the Poisons and Therapeutic Goods Regulation and without the verification required by clause 87 of the Poisons and Therapeutic Goods Regulation. 14. Oxycontin is a Schedule 8 drug of addiction subject to strict regulations and restrictions on sale. Oxycontin 80mg tablets are highly sought after by drug addicts as a replacement for heroin and are known as "hillbilly heroin" (Report of M O'Donnell, V1, T 20, p 26). 15. The Respondent admits to dispensing Oxycontin to six different patients, on nine separate dates, involving eight scripts that appeared to be forged, altered or fraudulently obtained, contrary to clause 86 of the Poisons and Therapeutic Goods Regulation, and without the verification required by clause 87 of the Poisons and Therapeutic Goods Regulation. 16. The Tribunal was satisfied that these actions alone amount to unsatisfactory professional conduct, and also professional misconduct, on the basis that they represent unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration (section 139E(a)) and/or, more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration (section 139E(b)). 17. Finally, the Tribunal turned its attention to the issue of dispensing Oxycontin to one individual using three aliases. The Tribunal had regard to the fact that between 30 April and 1 September 2011 the Respondent dispensed Oxycontin to a patient on occasions when that patient used three different aliases. That demonstrated a substantial lack of care and attention. In addition, the dispensing of such a large quantity (84 X 80mg Oxycontin), to a patient on two occasions within two days should have been picked up by the Respondent, particularly at such a short interval. This conduct involved a significant departure from the standard required of a practitioner of equivalent training and experience. 18. The Tribunal then had to have regard to the question of whether the Respondent is a suitable person to hold registration as a pharmacist and came to the conclusion that the conduct admitted by the Respondent demonstrates that he is not a person who is suitable to hold registration as a pharmacist. In that regard the Respondent demonstrated a serious departure from ethical standards, including: 1. A disregard for the regulations set out in the Poisons and Therapeutic Goods Regulation; 2. A serious fraud on his employer when in a position of trust; 3. Conduct which amounts to the commission of serious criminal offences; 4. A delay in taking responsibility for his actions when confronted with the fraud on his employer; and 5. A disregard for the health of patients, given his failure to monitor the sale of drugs of addiction. 1. The Tribunal was referred to various cases which led to a practitioner being deregistered, including HCCC v Randall Kelly Mott [2012] NSWMT 9, HCCC v Lau [2011] NSWPHT 2 and NG [2010] NSWPHT 2. 2. While the affidavit of the Respondent seeks to demonstrate remorse and contrition, and while the Respondent's submission is to the effect that the Respondent has insight into his wrongful act, the Tribunal noted that there was no evidence before the Tribunal that the Respondent had taken any steps to deal with the issues arising from his conduct. He had done nothing in taking steps towards his rehabilitation or with his ability to deal with his problems. No evidence was provided as to whether the Respondent had undertaken any ethical training courses, seen a counsellor to assist with his rehabilitation and to deal with how he allowed himself to find himself in this position or seek a mentor to work with him on improving his behaviour. He also provided no evidence to show that he had taken steps to reimburse his former employer for the money that he had stolen, despite indications in documents in Exhibit One that he still owed his employer significant sums of money. 3. In all the circumstances, the Tribunal is comfortably satisfied that the Respondent is guilty of the offences with which he has been charged and that his registration as a pharmacist should be cancelled. 4. The Tribunal had to decide an appropriate period during which the Respondent should not be entitled to seek re-registration and in that respect had regard to the very serious nature of the offences committed by the Respondent, namely the fact that he could not be relied upon to handle financial matters, that he breached a position of trust with his employer and that at best it can be said that he behaved irresponsibly in respect of his handling of Schedule 8 drugs. 5. In coming to its conclusion for appropriate orders, the Tribunal believes it important that, for the Respondent to seek re-registration, the Respondent should be able to demonstrate that he is a fit person to hold registration as a pharmacist. In doing so he should have had sufficient time to have undertaken courses in ethics, a mentoring program and to have undergone sufficient counselling to assist him to understand the seriousness of his behaviour and to assist him in dealing with anxiety or depression in circumstances which may arise during his registration as a pharmacist. 6. In the circumstances, the Tribunal makes the following orders: 1. The Respondent's registration is cancelled for a period of at least two years; 2. The Respondent is not permitted to seek a review of the order for cancellation for a period of two years; 3. The Respondent pays the commission's costs. 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: 10 November 2015