Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bova [2017] NSWCATOD 28 Hearing dates: Stage 113 November 2015, 1, 2 & 3 December 2015, 9 & 10 February 2016 Stage 217 October 2016 Date of orders: 17 October 2016 Decision date: 21 February 2017 Jurisdiction: Occupational Division Before: O Shub, Principal Member J Zwart, Professional Member M Duguid, Professional Member P Hooker, General Member Decision: The Practitioner having been found guilty of unsatisfactory professional conduct and professional misconduct, conditions were placed on the Respondent's Registration as per the orders made at paragraph 21. Catchwords: Pharmacy, compounding, substitution, commercially available. Legislation Cited: Health Practitioner Regulation National Law (NSW). Cases Cited: Briginshaw v Briginshaw [1938] Gianoutsos v Glykis (2006) In re Dr. Suman Sood [2006] Health Care Complaints Commission of New South Wales v Jonathan Fryar [2013] Kirby P., in Pillai v Messiter [No. 2] (1989) Category: Principal judgment Parties: Health Care Complaints Commission (HCCC) (Applicant) Nicholas Patrick Bova (Respondent) Representation: Counsel: H Bennett (Applicant) R Lancaster SC with A Gerard (Respondent) Solicitors: J Dinihan (Applicant) D King (Respondent) File Number(s): 1520093 REASON FOR DECISION Background/ History 1. This matter was determined in two stages and a decision was published in respect of Stage 1 on 13 April 2016. This decision therefore relates to the Stage 2 hearing. Decision 1. The Tribunal was provided with written submissions made by the Applicant and the Respondent and heard oral submissions from both in regard to appropriate orders to be made. 2. The Tribunal formed the view that there was very little contest between the parties as to appropriate orders. In essence the difference between the orders sought by the Parties related to: 3.1 The Applicant's call for a mentoring program, where the submission by the Respondent related to a CPD program extending beyond the CPD program normally required of a practitioner and a restriction on handling of Schedule 8 drugs. 3.2 Costs. The parties then addressed the various issues which existed between them are dealt with by the Tribunal below. Mentoring 1. In this regard the Applicant argued that a mentoring program is a good stepping stone to the Respondent achieving a position where there were no conditions on his registration. They also argued that it was important that the Respondent should have access to a professional person to seek advice on how to deal with issues that may arise. 2. The Respondent argued that mentoring was not appropriate as it was overly expensive for what was intended to be achieved and that in all the circumstances was overly onerous to achieve the protections required by the Act. In addition the Respondent argued that the CPD program proposed was a far better stepping stone to the Council determining that the Respondent should be entitled to practice without conditions 3. The Tribunal weighed up the arguments put forward by both parties and on balance is of the view that in the particular circumstances the mentoring program is not appropriate. The Respondent has since this complaint was brought, taken very significant steps to remedy deficiencies in his practice. In addition the Tribunal had regard to the fact that it is 4 to 5 years since the breaches occurred and the Respondent has operated all of that time without a mentor. CPD and Schedule 8 Restrictions 1. The Respondent argued that the proposal by him already imposes a 50% increase in CPD obligations on the Respondent than would otherwise be required. The Applicant did not raise any argument that the CPD requirement was not good but argued that the mentoring program would be a better process. 2. In line with the Tribunals view on the mentoring program the Tribunal is comfortably satisfied that a CPD program is both necessary and appropriate in the circumstances of this matter. The Tribunal is comfortably satisfied that the placing of additional CPD obligations on the Respondent is sufficient and appropriate for the protection of the public and the need to protect the name of the profession. Audit 1. The Applicant sought an order that the Respondent submit to an audit on three occasions within an eighteen month period and that the audit covers the Respondent's compliance with the procedures concerning the PTG Act and PTG Regulations 2008. 2. The Respondent submitted that two audits over an eighteen month period was adequate and that the audit should be limited to the breaches, the subject of complaint 2. 3. The Tribunal considered both positions propounded in the written and oral submissions and while it accepted that two audits in an eighteen month period was sufficient it believes that the Council should not be limited to auditing the Respondent's practice only in respect of matters the subject of the breaches. Accordingly the Tribunal was not prepared to include a limitation on the audit in its orders. Costs 1. The final matter in respect of which submissions were made is the question of costs 2. The Applicant sought an order that two-thirds of its costs be paid by the Respondent conceding that at least in some respect time was expended in seeking to prove breaches which were not ultimately proven. The Applicant submitted that a reduction of one-third of the costs was adequate recognition for the matters that were not proven. 3. The Respondent's position is that it would be appropriate for no order as to costs be made, since both parties were partially successful. 4. Argument was raised by the Applicant that even though the Respondent was partially successful a great deal of time was spent in respect of the allegation that Dr McAllister did not know of the substitution, time which would have been avoided had the Respondent kept proper records, which on his own admission he had not done. In answer to this submission the Respondent submitted that the complaint did not allege any breaches based on a failure to keep records and it would be inappropriate to have regard to that argument at all. 5. The Respondent argued that a very substantial amount of wasted time related to Dr McAllister being misled and not informed of the substitution but as the Tribunal found in favour of the Respondent on that issue that cost should not be borne by him. In addition the Respondent argued that substantial time was wasted by the expert Mr McInerney who required an adjournment to consider serious criticisms made of the Respondent which he had to withdraw when it was discovered that he had not read some of the material with which he had been briefed. This adjournment also had cost ramifications. 6. In response the Applicant pointed out that significant time was spent by the Respondent seeking an order to disqualifying the expert which application failed. 7. In considering an appropriate costs order the Tribunal had regard to the various arguments that go both ways. In addition to the arguments advanced to substantiate one or other of the positions, the Tribunal recalled that a significant amount of time was also spent by the Applicant seeking to introduce into evidence a decision in an unrelated commercial dispute in which the expert for the Respondent, Mr Knowles was a respondent. That application failed. 8. It is normal practice for costs to follow the result. In this matter both parties were partially successful and both parties failed partially. In addition this matter involved large amounts of time spent in interlocutory applications, some of which were successful for the Applicant and some for the Respondent. 9. The Tribunal is comfortably satisfied that any attempt by the Tribunal to allocate percentages to the question of costs would be totally arbitrary and accordingly believes that is it appropriate to make no order as to costs. Orders 1. The Respondent being found guilty of Unsatisfactory Professional Conduct and Professional Misconduct the Tribunal makes Orders that the following Conditions be placed on the Practitioner's Registration: 1. The Practitioner is not to personally compound any pharmaceutical products for human use. 2. The Practitioner is not to allow the bulk extemporaneous compounding of any pharmaceutical product for the purposes of supply for human use. 3. The Practitioner is not to allow the compounding of any of the following pharmaceutical products for either human or veterinary use: 1. Codeine (all forms, strengths and brands); 2. Dexamphetamine (all forms, strengths and brands); 3. Testosterone (all forms strengths and brands); 4. Ketamine (all forms, strengths and brands); 5. Oxytocin (all forms, strengths and brands), at Bova Compounding Chemist, 304-318 The Kingsway, Caringbah or any other pharmacy in which he has the majority ownership, 1. The Practitioner will undertake a Continuing Professional Development Program (CPD) as follows: For a period of three years 1. the practitioner is to prepare a continuing professional development (CPD) plan in accordance with the registration standard of the Pharmacy Board of Australia. 2. the CPD plan is to be submitted annually to the Pharmacy Council of NSW within four weeks of the commencement of each registration period. 3. complete CPD activities that have an aggregate value of 60 or more CPD credits during each twelve month CPD period ending 30 September. A minimum of 20 of those CPD credits is to be achieved from a course or courses of management training applicable to the operations of the practitioner's pharmacy. 4. Records of completed CPD activities are to be provided to the Pharmacy Council of NSW annually by October 31, the 1st to be provided by October 31 2017. 1. An auditor appointed by the Council is to attend the Practitioner's Pharmacy to conduct two audits over eighteen months commencing from the date on which these orders take effect, to conduct an audit of the practitioner's compliance with the procedures concerning the PTG Act and PTG Regulation 2008. The first such audit is to be undertaken within three months of the date on which these orders take effect. The auditor's report including recommendations, the result of each audit and implementation plan, is to be provided to the council within 1 month of the audit. 2. The practitioner is to meet the costs of compliance with the conditions. 3. Whilst the practitioner's principle place of practice is New South Wales, the Pharmacy Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 4. Whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Pharmacy Board of Australia. 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: 21 February 2017