Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 Hearing dates: 13, 14, 15, 16 November 201718 December 2017 (final submissions) Date of orders: 02 March 2018 Decision date: 02 March 2018 Jurisdiction: Occupational Division Before: A Britton, Principal Member E Frost, Senior Member R Jaja, Senior Member G Alder, General Member Decision: 1. If Mr Fearon had been registered the Tribunal would have cancelled his registration. 2. The National Board with which Mr Fearon was registered is to record the fact that the Tribunal would have cancelled his registration in the National Register kept by the Board. 3. Mr Fearon is disqualified from being registered as a pharmacist for a period of 12 months from the date of this decision; 4. Mr Fearon must pay the Commission's costs, as agreed or assessed. Catchwords: PROFESSIONS AND TRADES — health practitioner — whether practitioner is suitable person to hold registration — appropriate form of protective order EVIDENCE — application of the rules of evidence —tendency or coincidence evidence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD Health Care Complaints Commission v Menz (No. 2) [2017] NSWCATOD 172 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Hoch v The Queen (1988) 165 CLR 292; [1988] HCA 50 Jung v R [2017] NSWCCA 24 Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 NSW Bar Association v Meakes [2006] NSWCA 340 Oshlack v Richmond River Council 193 CLR 72; [1998] HCA 11 Pfennig v The Queen (1994) 182 CLR 461; [1995] HCA 7 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Nicholas James Fearon (Respondent) Representation: Counsel: A Petrie (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Nicholas James Fearon (Respondent in Person) File Number(s): 2017/00034035 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure and or publication of the names of the persons listed in Schedule A to the Complaint is prohibited. REASONS FOR DECISION 1. On 14 November 2014, while at work in Blooms The Chemist in Queanbeyan, pharmacist Nicholas James Fearon was arrested for drug-related offences. He was subsequently convicted of the offence of supplying "prescribed restricted substances" (six counts) and the offence of possession of a "prohibited drug" (one count). He was fined $110 and placed on a bond to be of good behaviour for 12 months. Mr Fearon has not practised as a pharmacist since his arrest. On 20 November 2014, the Pharmacy Council of NSW imposed a number of conditions on Mr Fearon's registration, which included that he not practise as a pharmacist. These conditions remain in place to this day. 2. Following a referral from the Pharmacy Council, the Health Care Complaints Commission (the Commission) conducted an investigation and decided to refer a complaint about Mr Fearon to the New South Wales Civil and Administrative Tribunal (NCAT). At the commencement of the hearing the Commission sought and was given leave to amend the complaint. The amended complaint is set out in Annexure A to these reasons. For convenience, throughout these reasons the amended complaint will be referred to as "the Complaint". 3. The conduct which is the subject of the Complaint relates to the period Mr Fearon was employed as a pharmacist at Blooms The Chemist pharmacies at Queanbeyan and Karabar, 23 August 2013 to 12 November 2014. In the Complaint, the Commission alleges, among other things, that on multiple occasions Mr Fearon supplied patients with prescribed medication without a written prescription. Many of the drugs alleged to have been supplied by Mr Fearon were anabolic steroids, drugs derived from the male hormone testosterone, known to be used by some athletes and body builders to increase muscle mass, strength, and endurance. Most of the drugs alleged to have been supplied were "restricted substances" or "drugs of addiction". A drug of addiction is any drug listed in Schedule 8 of the Poisons List under the Poisons and Therapeutic Goods Act 1966 (NSW) (the PTGA), and is commonly referred to as a "Schedule 8 drug". A "restricted substance" is any substance listed in Schedule 4 of the Poisons List, and is commonly referred to as a "Schedule 4 drug". The prescribing and dispensing of Schedule 4 and Schedule 8 drugs are heavily regulated. 4. Mr Fearon admits some but not all of the matters particularised in the Complaint. The central issues to be determined are whether Mr Fearon supplied drugs without a written prescription to nine of the patients listed in Particular 1 of Complaint 1, and whether he is a suitable person to hold registration as a pharmacist. For the reasons that follow we have decided to cancel Mr Fearon's registration as a pharmacist. The issues to be determined 1. The Complaint consists of six individual complaints. Except where conceded in writing, we must make findings in relation to each complaint and then determine whether each is established: s 165H of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. Mr Fearon admits four of the six complaints — being guilty of unsatisfactory professional conduct and professional misconduct (respectively, Complaints 3 and 4) and having being convicted of a criminal offence (Complaint 5). He denies knowingly giving false or misleading information to the NSW Police (Complaint 2) and not being a suitable person to hold registration in the profession of pharmacy (Complaint 6). Mr Fearon denies, in part or whole, 11 of the 15 particulars listed in Complaint 1: Particulars 1(b), 3, 4, 6, 7, 8, 9, 10, 11, 13, and 14. He admits the balance of the particulars in Complaint 1. 3. The central issues to be determined are: 1. Whether Particulars 1(b), 3, 4, 6, 7, 8, 9, 10, 11, 13, and 14 of Complaint 1 are established. 2. Whether, during an interview with Police on 14 November 2014, Mr Fearon knowingly gave false and misleading information as particularised in paragraphs (a) to (e) of Complaint 2. 3. Whether Mr Fearon is a suitable person to hold registration in the profession of pharmacy. 4. Whether protective orders should be made and, if so, what orders should be made. 5. Whether Mr Fearon should pay some or all of the Commission's costs. 1. The Commission bears the burden of proving the matters, particularised in the Complaint and denied by Mr Fearon, on the balance of probabilities. In cases such as this, where the allegations if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences the more they will affect the consideration. 2. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1]. Are particulars 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, and 14 of Complaint 1 established? The reliability of the dispensing records 1. Each disputed particular relates to the alleged supply of prescription medication by Mr Fearon. In support of these particulars the Commission relies on the records of patient histories, provided to NSW Police by the proprietors of the Karabar and Queanbeyan pharmacies. Mr Fearon submits that those records are unreliable. To put that and related submissions in context, it is necessary to examine the evidence about these records and the statutory requirements governing record keeping in relation to the supply of restricted substances and drugs of addiction. 2. Throughout the period of the Complaint, the Queanbeyan pharmacy was owned by Mohammed Hasan. Mr Hasan was also a co-owner of the Karabar pharmacy with Mohammed Taz Hazan and Shaheed Sahu-Khan. Each pharmacy is part of Blooms The Chemist, a community-based retail pharmacy group. 3. In separate statements provided to Police in May 2015, Messrs Hasan and Sahu-Khan gave an outline of the software system, FRED, used by the Karabar and Queanbeyan pharmacies to record the dispensing of prescription medication. Messrs Hasan and Sahu-Khan attached to their respective statements a record of the patient histories said to have been generated by FRED for a number of patients. Mr Hasan provided records of the patient history of eight individuals said to have been patients of the Queanbeyan pharmacy. Mr Sahu-Khan provided the records of the patient history of seven individuals said to have been patients of the Karabar pharmacy. A pro forma document, the patient history generated by FRED, lists under the name and address of the patient, the date the drug was dispensed, the name and quantity of the drug dispensed, directions for use, and the name of the prescribing health practitioner. 4. The entries in patient histories generated by FRED, in relation to the supply of both drugs of addiction and restricted substances reflect the statutory requirements relating to the recording of information when supplying restricted substances. Regulation 55(1) of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (the PTGR), requires a pharmacist who supplies a restricted substance on prescription to record in a manner approved by the Director-General, among other things, the name of the person who supplied the substance and the details required by reg 35(1) of the PTGR to be included in the prescription. A prescription for a restricted substance must include, among other things, the name and the amount of the drug prescribed, the instructions for use given by the prescribing practitioner, and the name of the prescribing practitioner: reg 35(1) of the PTGR. 5. In their respective statements, Messrs Hasan and Sahu-Khan outlined the record-keeping procedures each claim were required to be followed by staff of the Queanbeyan and Karabar pharmacies, throughout the period of the Complaint. After receiving a prescription or repeat authorisation, the dispensing pharmacist is required to enter into FRED, against the patient's name, various details including the name and the amount of the drug prescribed, the instructions for use given by the prescribing practitioner, and the name of the prescribing practitioner. FRED automatically enters on the record of the supply, the initials of the dispensing pharmacist and the date of supply of the medication. 6. Mr Hasan explained that at the commencement of each shift, to access FRED the dispensing pharmacist enters their own access code and password. For the remainder of that day, unless that pharmacist logs out of FRED, or the initials of the dispensing pharmacist is changed manually, FRED automatically enters on the record of each supply, the initials of the pharmacist who opened FRED at the commencement of the day. 7. Mr Fearon submits that the records provided to Police by Messrs Hasan and Sahu-Khan are unreliable. In a reply in answer to the Complaint filed on 7 July 2017, Mr Fearon wrote that he had "every reason to believe many of the records were completely inaccurate". In support of that claim he relies on the following points. First, he contends that the proprietors engaged in a number of "questionable practices" designed to maximise profits, surrounding the dispensing of generic drugs, Second, he alleges that the proprietors were responsible for poor recordkeeping in relation to the Schedule 8 drug register, and that Mr Hasan's practices in relation to balancing the register were unethical. Third, he claims that Mr Hasan personally used weight loss and testosterone medications illicitly. Fourth, he also alleges that on many occasions during his employment, medication was dispensed under his name when he had no involvement with the dispensing or was not present at the pharmacy. Mr Hasan strenuously denies each claim. 8. The only supporting evidence relied upon by Mr Fearon, namely the evidence given by former pharmacy assistant, Mr Jacob Rech, does not corroborate these claims. Mr Rech worked at the Queanbeyan pharmacy throughout 2014. In a statement dated 26 June 2014, he criticised a number of practices alleged to have occurred at the Queanbeyan pharmacy, including the "mass sale of codeine" to persons known to be codeine-dependent and the lack of advice given by the on-duty pharmacist to patients when dispensing prescribed medication. He wrote that while he could not provide evidence in support of Mr Fearon's claims, having witnessed "inconsistencies in pharmacy practice", he urged the Tribunal to take seriously the allegations made by Mr Fearon. 9. The assertion that the records produced to Police by the proprietors of the Queanbeyan and Karabar pharmacies, are unreliable is made at a high level of generality. Mr Fearon has pointed to only one occasion where he recalls FRED recording him as being the dispensing pharmacist when he claims he was not at work. (See Particular 13). 10. Even if, as Mr Fearon alleges, Mr Hasan engaged in the type of improper conduct described above, this does not establish that the disputed records are unreliable. Nor, without more, does it permit that inference to be drawn. The employee attendance records 1. An issue raised in a number of the disputed particulars is whether Mr Fearon was at work on the day of the alleged supply. 2. Throughout the period of his employment, Mr Fearon worked full-time, initially at the Karabar pharmacy, and from late-2013 until his arrest on 14 November 2014 at the Queanbeyan pharmacy. On the days he worked, Mr Fearon was generally the sole pharmacist rostered to work. In addition to the pharmacist, a dispensing technician was rostered to work at each pharmacy. 3. Apart from entries made in wall calendars kept at the pharmacy (which were not produced in these proceedings), Mr Hasan claims that neither of the Karabar and Queanbeyan pharmacies kept a record of the days individual pharmacists worked. 4. On the days Mr Fearon was rostered to work, Mr Hasan dropped in to the pharmacy from time to time to attend to various business and administrative tasks. He denies dispensing drugs on these occasions. He claims, responsibility for that task remained at all times with the rostered pharmacist-in-charge, the pharmacist wearing the "white coat". Mr Fearon claimed that Mr Hasan "completely falsified" his attendance records to "make up a 40 hour week". Mr Hasan denies this allegation. Mr Fearon's claims against Mr Hasan in this respect lacked specificity and corroboration. 5. While no employment attendance records were tendered in evidence, the patient records relating to the Complaint constitute prima facie evidence that Mr Fearon was working on those days and was the dispensing pharmacist on duty. 6. Apart from Mr Fearon's own uncorroborated allegations against Mr Hasan, there is no evidence before us to suggest that Mr Hasan falsified the patient records by substituting Mr Fearon's initials for his own in respect of drugs dispensed, or that anyone else did. Given that Mr Fearon has admitted some instances of dispensing restricted substances and drugs of addiction without prescription and has been convicted of offences relating to such conduct, the credibility of his claims against Mr Hasan is low. 7. As a regular dispensing pharmacist Mr Fearon would have been in a position to check patient records. Although it is not possible to say how great the risk would have been, it seems self-evident that it would have been a risky procedure for another pharmacist to falsify patient records by using Mr Fearon's name in respect of patients with whom he or she was dealing, especially those with whom he was recorded as having regular contact. While it is, of course, possible that the records were falsified by someone using Mr Fearon's identity, on the evidence before us this seems highly unlikely. Without credible independent evidence supporting those allegations, we do not accept Mr Fearon's claims. 8. In our view, therefore, it is more likely than not that where a patient history records Mr Fearon as being the dispensing pharmacist he carried out the recorded supplies. Similarity of the facts on which the disputed particulars and the offences for which Mr Fearon was convicted are based 1. Most of the particulars in Complaint 1 relate to Mr Fearon's alleged practice of dispensing Schedule 4 and Schedule 8 drugs without a written prescription and recording the prescriber as either 'Canberra' or 'Woden Valley' Hospital. Woden Valley Hospital was renamed Canberra Hospital in 1996. 2. Unless made by a pharmacist in accordance with the prescription of a medical practitioner, it an offence for a person to supply a restricted substance otherwise than by wholesale: s 10(1) of the PTGA. In September 2015, after entering a guilty plea, Mr Fearon was convicted of five counts of "supply of certain substances otherwise than by wholesale". The convictions related to four individuals, Patients A, B, C, and D. Mr Fearon admits being a friend or acquaintance of all but Patient B. 3. The details of the five counts are: (i) on 10 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to Patient A, without a written prescription of an authorised practitioner; (ii) on 22 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 6 x 250mg ampules of Primoteston Depot to Patient A, without a written prescription of an authorised practitioner; (iii) on 10 July 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 3 x 250mg ampules of Primoteston Depot to Patient B, without a written prescription of an authorised practitioner; (iv) on 28 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 6 x 250mg ampules of Primoteston Depot to Patient C without a written prescription of an authorised practitioner; and (v) On 12 November 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substances, namely 30 x 30mg capsules of Duromine and 50 x 5mg tables of Diazepam and the prescribed substances, namely 28 x 1mg tablets of Propecia and 30 x 125mcg tablets of Sifrol to Patient D without a written prescription of an authorised practitioner. 1. In relation to each of the offences admitted by Mr Fearon patient records had been created. A common characteristic was that rather than recording the name of a prescribing practitioner, the prescriber was listed as "Canberra Hospital" or "Woden Valley Hospital" in most cases. One instance records Patient C's GP as being the prescriber (the supply of Primoteston to Patient C on 28 October 2014), another records Mr Fearon as the prescriber (the supply of Primoteston to Patient B on 10 July 2014). 2. By recording a hospital's name rather than the name of a medical practitioner as the regulations require, the Commission suggests that Mr Fearon was creating a sort of alibi for himself. He might be able to claim plausibly to the proprietors (or, indeed, any investigator) that this was a clerical error but that, unfortunately, he was unable to recall the name of the prescribing doctor. Unless a cross-check with the physical prescriptions kept at the pharmacy or the copy held by the alleged issuing practitioner was conducted, it would be impossible to contradict such a claim. Mr Fearon's plea of guilty to the criminal offences implies that he had concocted this modus operandi to camouflage his illicit activities. This raises a serious question in relation to other transactions in which Mr Fearon is listed as the dispensing pharmacist and the prescriber is listed as a hospital rather than a doctor identified by name. 3. The Commission contends that there are striking similarities between the admitted offences and the modus operandi used in committing them with characteristics of the transactions listed in the disputed particulars. From those similarities, the Commission submits that the Tribunal can reasonably infer that Mr Fearon was supplying prescribed medication without prescriptions. At common law, such evidence is known as "similar fact" or "propensity" evidence: see, for example, Pfennig v The Queen (1994) 182 CLR 461; [1995] HCA 7. Under the Evidence Act 1995 (NSW), such evidence is referred to as "tendency" or "coincidence" evidence: ss 97 and 98. Similar fact evidence refers to specific conduct that is of the same general characteristic or shares some common feature with the conduct which is the subject of the proceeding. It is a species of circumstantial evidence, tendered to assist in the proof of one or more of the elements of alleged conduct. As a proof, its significance is that "it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged": Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, at 294-5, per Mason CJ and Wilson and Gaudron JJ. Because of the dangers of unfair prejudice, such evidence will only be admissible where the rules of evidence apply as part of a case to prove a person did a particular act or had a particular state of mind if it has significant probative value: see ss 97(1)(b) and 98(1)(b) of the Evidence Act. Although we are not bound by the rules of evidence (s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW)), our approach has been to treat this evidence with caution similar to that applied by courts. In our view, however, this evidence is of significant probative value. 4. The supplies referred to in the disputed particulars are based on the records of patient histories of Patients B, D, E, F, G, H, and I, provided to Police by the proprietors of the Karabar and Queanbeyan pharmacies in May 2015. Each entry in those histories records Mr Fearon as the dispensing pharmacist. All but a few record Woden Valley Hospital or Canberra Hospital as the prescriber. 5. There are striking similarities between the proven conduct which Mr Fearon admitted by entering a guilty plea and the conduct alleged against him in Particular 1, which he now denies. First, the dispensing of Schedule 4 and Schedule 8 drugs. Second, that in most cases, the dispensed drugs were anabolic steroids. Third, the use of the name of a hospital as prescriber rather than that of a medical practitioner. Fourth, at least in relation to the Queanbeyan transactions, a search in which no physical prescription has been found. Finally, that in relation to many of the transactions, the recipient was a friend or acquaintance of Mr Fearon. In our view, as a matter of common sense, this suggests, at least at a prima facie level, an objective improbability of the transactions occurring other than as alleged by the Commission. It is also relevant that in relation to Particular 1 of Complaint 1, which concerns Mr Fearon dispensing a prescribed substance to himself without a prescription, a particular that he admits, he recorded "Canberra Hospital" as the prescriber. We will now consider each of the particulars alleged against Mr Fearon in greater detail. Did Mr Fearon create a false dispensing record for Patient D? 1. Particular 3 of Complaint 1 states: The practitioner created a false dispensing record for Patient D at Queanbeyan for the drugs supplied on the dates as outlined in Schedule A contrary to Regulation 55 of the PTGR in that he entered the prescribing doctor as Canberra Hospital. 1. Schedule A lists entries for 36 supplies of drugs alleged to have been made to Patient D at the Queanbeyan pharmacy between 29 December 2013 and 12 November 2014, a number on the same day. The drugs supplied include Duromine, Alprazolam, Diazepam, Propecia. 2. As noted above, the PTGR requires a pharmacist who supplies a restricted substance on prescription to record, among other things, the details required to be included in the prescription, by reg 35 of the PTGR. Relevantly, these details include: (g) if the prescription is issued at a hospital, the name and designation of the person by whom it is issued and the name, address and telephone number of the hospital, (h) if the prescription is issued elsewhere than at a hospital, the name and designation of the person by whom it is issued and the address and telephone number of the premises at which it is issued. 1. Similarly, a pharmacist who supplies a Schedule 8 on prescription must record, the name and designation of the person who issued the prescription: regs 80(1)(g), 113(1) of the PTGR. 2. Mr Fearon admits being the dispensing pharmacist for most of the supplies listed in Schedule A to the Complaint. However, he argues that given the demands of his work during the period covered by Particular 3, December 2013 to November 2014, he is not confident that he was the dispensing pharmacist in respect of each of the 36 supplies. 3. Nonetheless, he admits in respect of those supplies where he was the dispensing pharmacist, (which he does not particularise), that, contrary to the requirements of the PTGR, he recorded the name of the prescriber as Canberra Hospital. He gave a number of explanations for this practice. These included the alleged practice of some practitioners working in hospitals of failing, as required by reg 80(1)(g) of the PTGR, to include their name on the issued prescriptions, which carried the name of the hospital. Further, he suggested that in the ACT, the relevant regulations did not require the name of the practitioner to be entered when a prescription is issued at a hospital and he might have confused the NSW regulations with their ACT equivalent. At the close of the hearing, both parties were invited to address in written submissions whether as suggested by Mr Fearon, practitioners working in ACT hospitals are not required to record their name on issued prescriptions issued. No submissions were received on this point. Consideration 1. For reasons we have given above, we think it more probable than not that where Mr Fearon's initials appear in the patient records as the dispensing pharmacist, he was the dispensing pharmacist. It is, in our view, therefore more probable than not that Mr Fearon was the dispensing pharmacist in respect of each supply recorded in the patient history of Patient D. 2. The submission that the records were not "false" because as best as Mr Fearon now recalls, the entry "Canberra Hospital" corresponded to the name of the prescriber on the prescription supplied, must be rejected. Even if this unsupported assertion is accepted, the entry is nonetheless false. The word "false" has a number of meanings. These include (Macquarie Dictionary on-line) 1. not true or correct; erroneous: a false statement; a false accusation. 2. … 3. deceitful; treacherous; faithless: a false friend. 4. deceptive; used to deceive or mislead: false weights; to give a false impression. 1. In the context in which it appears, we are of the view that the first of these meanings is conveyed by the word false, namely, incorrect. A hospital cannot prescribe medication — only an authorised health practitioner can do so. Applying that meaning we find that Mr Fearon created a false dispensing record for Patient D for the drugs supplied on the dates listed in Schedule A by entering the prescribing doctor as Canberra Hospital. 2. Particular 3 is established. Did Mr Fearon supply the drugs listed in Schedule A to persons unknown and/or for his personal use? 1. Particular 4 reads: The practitioner supplied the drugs as outlined in Schedule A to persons unknown and/or for personal use without a written prescription of an authorised practitioner in circumstances where Patient D denies ever attending Queanbeyan. 1. Mr Fearon denies Particular 4. He insists that the drugs listed in Schedule A were supplied to Patient D, not as the Commission alleges, to persons unknown and/or himself. The Commission on the other hand, relying on a statement provided by Patient D to Police in 2015, alleges that Mr Fearon supplied the drugs listed in Schedule A to either himself and/or persons unknown. 2. As noted above, in 2015, Mr Fearon was convicted of five counts of the offence of "supply of certain substances otherwise than by wholesale". One count related to four of the 36 supplies listed in Schedule A, namely the supply of the restricted substances, Duromine, Diazepam, Propecia, and Sifrol (the subject drugs) to Patient D, on 12 November 2014. 3. In a statement provided to Police dated 12 May 2015, Patient D wrote that he had not seen his GP since 2011, had not been to Canberra Hospital since 2009, had never been to a pharmacy in Queanbeyan to have a script filled, and had no knowledge of and had never purchased or been prescribed any of the subject drugs. 4. CCTV footage of the Queanbeyan pharmacy taken on 12 November 2014 shows a man giving an envelope to, and being handed drugs by Mr Fearon. After viewing that footage and interviewing Patient D, the investigating officer, Detective Senior Constable McDarmont, concluded that the man seen in the CCTV footage was not Patient D. He made a statement to that effect on 16 May 2015. Nonetheless, that conclusion was not reflected in the amended Police Facts Sheet tendered in the Local Court, which stated that Mr Fearon handed the subject drugs to Patient D. In addition, the Facts Sheet records that on 12 November 2014 Mr Fearon supplied to Patient D, Propecia, Duromine, Sifrol and Diazepam without a prescription. . 5. In a statement dated 27 June 2017 tendered by Mr Fearon in these proceedings, Patient D wrote that: 1. he had known Mr Fearon for over 10 years; 2. the claim he made in the statement to Police, prepared on 12 May 2015, that he had never been to a pharmacy in Queanbeyan was a "clear mistake", made because "the subjectiveness of my own duress" and "the coercion … from Queanbeyan Police detectives"; 3. between June 2013 and December 2014, he had been to Blooms The Chemist in Queanbeyan and Karabar, on more than one occasion and had scripts filled by Mr Fearon. In addition, he had arranged for friends to collect medications from these pharmacies on his behalf. 1. The Commission required Patient D for cross-examination. On the second day of the hearing we phoned Patient D on a mobile number supplied by Mr Fearon. The call was answered by a person who identified himself as Patient D. He requested that we phone back because of the poor quality of mobile reception in the area where he was then located. We rang back at an agreed time but the call was diverted to a message bank. We left a message requesting Patient D to contact the NCAT registry. On multiple occasions throughout the course of the hearing, we attempted to contact Patient D by phone without success. 2. Before us are two inconsistent and untested statements, purportedly prepared by Patient D. We accept, as the Commission contends, that Patient D is probably not a witness of truth having provided inconsistent accounts about matters that are the subject of criminal and disciplinary proceedings. However, this does not resolve the conundrum, which, if either of the conflicting accounts given by Patient D, or the person claiming to be Patient D, should be accepted. 3. Part of Particular 4, namely the supply of the subject drugs on 12 November 2014, is inconsistent with the facts of Mr Fearon's conviction outlined in the amended Police Fact Sheet tendered in the Local Court. While it is apparent that the investigating officers had misgivings about whether the impugned supply on 12 November 2014 was made to Patient D that is not reflected in the agreed facts on which Mr Fearon's conviction was based. 4. In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313, Branson J stated at [43] that while proof of a conviction is highly probative of the factual matters upon which a conviction is based there was "no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based". Her Honour stated that a conviction is strong prima facie evidence that the facts found by the court were found correctly. This places a "heavy onus", as Her Honour put it at [43], on a party seeking to persuade the Tribunal to accept facts other than those upon which the convicting court relied. Her Honour observed at [43] that this heavy onus: [W]ill, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing. 1. In our view, because of the inconsistencies in the evidence, the Commission has failed to discharge the "heavy onus" referred to by Branson J. It follows Particular 4 is not established in relation to four of the 36 entries listed in Schedule A to the Complaint, namely the four supplies of the subject drugs on 12 November 2014. 2. With respect to the balance of Particular 4, namely the 32 supplies that were not the subject of the criminal conviction, in circumstances where it has been established to the criminal standard that Mr Fearon supplied the subject drugs to Patient D on 12 November 2014, together with the conflicting evidence about whether Patient D had purchased the subject drugs or been to the Queanbeyan pharmacy, the contention that the drugs listed in Schedule A were supplied to a person other than Patient D can be put no higher than a possibility. 3. Particular 4 is not established. Did Mr Fearon supply the drugs, Propecia, Duromine, Sifrol, and Diazepam in the name of Patient D to a third party, not being Patient D? 1. Particular 5 reads: On 12 November 2014, the practitioner supplied the drugs Propecia, Duromine, Sifrol and Diazepam in the name of Patient D to a third party, not being Patient D, without a written prescription of an authorised practitioner. (emphasis added). 1. In the Reply filed on 4 July 2017, Mr Fearon wrote that he admitted Particular 5. It appears that admission was directed to only one element of Particular 5, namely the allegation that Mr Fearon supplied the subject drugs without a valid prescription. As noted above, Mr Fearon has consistently maintained that the subject supply was made to Patient D. 2. For the reasons given in relation to Particular 4, it is not open to us to find that the subject supplies made on 12 November 2014 were made to a person other than Patient D. It follows that the admission made by Mr Fearon in these proceedings cannot be accepted. 3. Particular 5 is not established. Did Mr Fearon create a false dispensing record for Patient E by entering the prescribing doctor as "Woden Valley Hospital"? 1. Particular 6 reads: The practitioner created a false dispensing record for Patient E at Karabar for the drugs supplied on the dates as outlined in Schedule B contrary to Regulation 55 of the PTGR in that he entered the prescribing doctor as Dr Wv Hospital. 1. Schedule B is based on the record of Patient E's history provided to Police by Mr Sahu-Khan in May 2015. That history lists the following supplies: Alprazolam (50 x 2mg) on 15 November 2013 and 2 December 2013 and Duromine (40mg x 30) on 2 December 2013. In addition, for each of the three supplies, the history records Mr Fearon as being the dispensing pharmacist and Woden Valley Hospital as the prescriber. 2. Adopting the reasoning applied in Particular 3, the dispensing record in respect of Patient E is false because, contrary to the requirements of the PTGR, the prescribing doctor is recorded as being a hospital, not a health practitioner. 3. Mr Fearon denies knowing Patient E and claims that to the best of his knowledge he did not record any entries under Patient E's name while working at the Karabar pharmacy. He points out that the Commission has adduced no evidence to establish that he worked on 15 November 2013 and 2 December 2013. 4. Mr Fearon suggests that the most likely explanation for his name being recorded as the dispensing pharmacist in each of the supplies in the record of Patient E's history, is that either someone else had created the records or that the records had been altered. 5. In a statement provided by Patient E to police in February 2015, Patient E denies attending Woden Valley Hospital for treatment in November 2013 or December 2013 or having any knowledge of, or being prescribed the drugs, Alprazolam or Duromine. He claimed that his only ongoing medical condition is a wrist injury for which he is prescribed pain-killers. Neither Alprazolam nor Duromine are used for pain relief. Alprazolam is a benzodiazepine used in the treatment of anxiety. Duromine is an appetite suppressant. Consideration 1. For the following reasons we think it more likely than not that Mr Fearon created the records on which the purported history for Patient E was based. 2. First, his claim that he cannot recall dispensing drugs to Patient E is unremarkable, given the volume of prescriptions and repeat authorisations, he dispensed each day, upwards of 250. 3. Second, it is not disputed that on the days he worked at the Karabar pharmacy, generally Mr Fearon was the only rostered dispensing pharmacist. 4. Third, while it is correct that the Commission has failed to produce any record or direct evidence which establishes that Mr Fearon was the dispensing pharmacist employed on 15 November 2013 and 2 December 2013, Mr Fearon has neither expressly denied being at work on those days, nor provided any evidence to support a finding that he was not at work on those days. 5. Fourth, Mr Fearon has not pointed to any reliable evidence to support the proposition that the record of Patient E's history provided by Mr Sahu-Khan to Police in May 2015 had been tampered with or altered in some way. 6. Fifth, the similarity between the course of conduct proven against Mr Fearon by his convictions and the apparent facts in this instance in a number of respects is striking, most particularly the identification of Canberra or Woden Valley Hospital as the prescribing practitioner. 7. Finally, for reasons we have outlined above we do not consider Mr Fearon to be a credible witness in relation to patient records where a hospital is recorded as the prescriber. For reasons given above in relation to the employee attendance records, we consider it more probable than not that where Mr Fearon's initials appear as the dispensing pharmacist in the patient histories, he was the dispensing pharmacist. In addition, the similar fact evidence that we have discussed above also strongly suggests that he was. 8. We find on the balance of probabilities that Particular 6 is established. Did Mr Fearon supply the drugs as outlined in Schedule B to persons unknown and/or for personal use without a written prescription? 1. Particular 7 reads The practitioner supplied the drugs as outlined in Schedule B to persons unknown and/or for personal use without a written prescription of an authorised practitioner in circumstances where Patient E denies ever attending the Chemist Queanbeyan or Karabar. 1. Mr Fearon denies this allegation. 2. This Particular requires us to be satisfied that the drugs listed in Schedule B were supplied to either Patient E or a person unknown without a written prescription of an authorised practitioner. 3. In support of the allegation that the drugs listed in Schedule B were supplied without a written prescription, we understand the Commission to rely on the statements provided to police by Messrs Sahu-Khan and Hasan in May 2015, and the supplementary statement prepared by Mr Hasan dated 2 November 2017. 4. In the statement dated 17 May 2015, Mr Sahu-Khan set out the steps he took to generate from FRED the records of the patient history for Patient E and six other individuals, held by the Karabar pharmacy. He wrote that the prescriptions dispensed for these individuals were either private prescriptions or general non-claimable prescriptions, and therefore if they exist, they would be stored in the pharmacy. He explained that prescriptions of this type must be kept by the pharmacy for five years, or if a Schedule 8 drug, seven years. However, Mr Sahu-Khan did not address whether he was asked by Police to conduct a search for the prescriptions recorded in Patient E's history, or any other individual, or whether he had knowledge of a search being conducted. 5. In a statement in similar terms dated 17 May 2015, Mr Hasan set out the steps he took to generate from FRED the patient history held by the Queanbeyan pharmacy for eight individuals. He stated that he gave police access to his business records, including all prescriptions and repeat authorisations held by the Queanbeyan pharmacy, for the period, January 2014 to December 2014. 6. In a statement prepared at the request of the Commission dated 2 November 2017, Mr Hasan wrote: In my initial notification to the Pharmacy Council of NSW dated 17 November 2014 … I outlined that we were in the process of going through all of our scripts in order to locate any original copies. I can advise I did complete this task in front of police and no scripts were located. 1. In the notification to the Pharmacy Council referred to in the above passage (an email sent by Mr Hasan on 17 November 2014), Mr Hasan wrote that he was in the process of going through "all our scripts in order to locate original copies (if any) of the drugs prescribed to these individuals". He wrote that in November 2014, when asked by Police to undertake a search of FRED for individuals to whom the drug Tertroxin had been dispensed, he found it had been dispensed to Patient D. He wrote that after reporting to Police that Patient D had a "long dispensing history" of drugs such as "Duromine, Tertroxin, Propecia, Valium, Anabolic steroids etc", at the request of the Police, he broadened the search to include dispensing entries which recorded Canberra Hospital as the prescriber. He wrote that using that extended search he "[M]anaged to find a few people being prescribed similar drugs. All done under Canberra Hospital as prescriber." 2. In the Police brief tendered in the criminal proceedings which resulted in Mr Fearon's conviction for a number of drug-related offences, apart from the statements prepared by Messrs Sahu-Khan and Hasan in May 2015, the only documents relating to a search of pharmacy records, is a statement dated 16 May 2015, prepared by Detective Senior Constable McDarmont. He wrote that he reviewed all prescriptions and repeat authorisation records held by the Queanbeyan pharmacy for January 2014 to January 2015. He made no mention of whether he or any other person undertook a review of the records held by the Karabar pharmacy. 3. Mr Fearon submits that the archiving systems maintained by the Karabar and Queanbeyan for prescriptions and repeat authorisations, was "extremely poor" and "undoubtedly incomplete". He claimed that throughout the period of his employment, there was no system in place used to store duplicate prescriptions and "certainly not in any way close to the manner of the other pharmacies I had worked". He claimed there were many instances where he was unable to locate prescriptions at the request of Comcare, in respect of compensation claims. Mr Hasan disagrees. He claims that the archiving system used by each pharmacy is kept up-to-date and stores received prescriptions in three categories: general, non-claimable prescriptions, and controlled drugs. Consideration 1. There is no direct evidence that a search was undertaken for prescriptions issued in the name of Patient E held by the Karabar pharmacy. In our view, the supplementary statement prepared by Mr Hasan in 2017 could not be read to suggest that he undertook a search of the records held by the Karabar pharmacy. 2. The Commission, as we understand it, contends that it can be inferred that the drugs listed in Particular 7 were dispensed without a written prescription because of the similarity of the facts of the offences for which Mr Fearon has been convicted, which were based on patient histories which record restricted substances being supplied by Mr Fearon and the prescriber being recorded as Canberra or Woden Valley Hospital. 3. It is unfortunate that either no search for prescriptions was conducted at Karabar or that, if it was conducted, it is not documented either in the police brief or the materials tendered by the Commission in these proceedings. Nevertheless, in our view, but for that, the similarities between the Karabar cases and the Queanbeyan case are striking. It is not necessary for the Commission to prove its allegations beyond a reasonable doubt. In our view, it is highly probable that Mr Fearon's modus operandi at Karabar was the same as, or very similar, to his course of conduct in respect of the offence of supplying "prescribed restricted substances", for which he has been convicted. It follows, therefore, that it is more probable than not that he supplied drugs as is alleged in this particular, without a written prescription. Did Mr Fearon supply drugs to Patient F without a written prescription? 1. Particular 8 reads: On 28 August 2013 and 9 September 2013, the practitioner supplied 10 x 50mg Clomid tablets and 30 x 25mg Exemestane tablets, respectively, to Patient F without a written prescription of an authorised practitioner. 1. This particular is based on the record of Patient F's history generated by FRED and provided to Police by Mr Sahu-Khan in May 2015. That history records each supply as being made at the Karabar pharmacy, Mr Fearon as the dispensing pharmacist and Woden Valley Hospital as the prescriber. 2. In May 2015, Mr Sahu-Khan provided to Police, Patient F's patient history held by the Karabar pharmacy. It records that on 25 August 2013 (not 28 August 2013 as stated in Particular 8) 10 x 50mg Clomid tablets were dispensed to Patient F and on 9 September 2013, 30 x 25mg Exemestane tablets were dispensed. Patient F and Mr Fearon are friends. 3. Mr Fearon claims he cannot recall creating these records but claims that any medication dispensed was on the basis of a valid prescription. In a statement dated 27 June 2017 tendered by Mr Fearon, Patient F corroborated that claim. 4. The Commission contends that in circumstances where Patient F and Mr Fearon are friends, given the similarity of the facts of this particular and the offences for which Mr Fearon has been convicted, in the absence of any corroborating evidence to support Mr Fearon's claim that a written prescription was provided, the Tribunal should find that a written prescription was not provided. 5. In circumstances where there is no direct evidence that the Karabar pharmacy does or did not hold written prescriptions for the subject drugs and Patient F denies being supplied the subject drugs without a prescription, the evidence is equivocal. Although, because of the apparent similarity between the transactions proven to be illicit and this one, suspicion inevitably arises, those similarities are insufficient of themselves to establish this particular. The evidence is too inexact, indefinite and indirect to prove Particular 8 to the necessary standard. Did Mr Fearon supply Temazepam to Patient G without a written prescription? 1. Particular 9 reads: On 5 October 2013 and 14 May 2014, the practitioner supplied 25 x 10mg Temazepam and restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot, respectively, to Patient G without a written prescription of an authorised practitioner. 1. This particular is based on the records of Patient G's history generated by FRED and provided to Police by Messrs Sahu-Khan and Hasan in May 2015. These reveal that the alleged 5 October 2013 supply was dispensed at the Karabar pharmacy, and the alleged 14 May 2014 supply was dispensed at the Queanbeyan pharmacy. The records of each supply record Mr Fearon as being the dispensing pharmacist. The prescriber of Temazepam in the October 2013 supply is recorded as being Woden Valley Hospital. Canberra Hospital is recorded as the prescriber of the May 2014 supply. 2. Mr Fearon admits dispensing Primoteston to Patient G on 14 May 2014 but denies dispensing Temazepam on 5 October 2013, or at any other time. In a statement tendered by Mr Fearon dated 27 June 2017, Patient G wrote that he had been prescribed Primoteston. He admits Mr Fearon had dispensed to him Primoteston but claims he did so on presentation of a valid prescription. He denies ever having being prescribed Temazepam, or being supplied Temazepam by Mr Fearon. 3. Patient G and Mr Fearon are friends. Patient G attended Mr Fearon's wedding in 2011. Under cross-examination, Patient G denied ever having been prescribed drugs to assist him with anxiety or sleeping. A benzodiazepine, Temazepam is used in the treatment of insomnia and depression. 4. In a statement dated 16 May 2015, Detective Senior Constable McDarmont wrote that he reviewed all prescriptions and repeat authorisation records held by Blooms The Chemist, Queanbeyan for January 2014 to January 2015 and that no prescriptions were located in the name of Patient G. As noted, there is no evidence of a search being conducted of the prescriptions held by the Karabar pharmacy. 5. Mr Fearon was on notice that a search of the Queanbeyan pharmacy revealed that no prescriptions were located in the name of Patient G. While he is self-represented, nonetheless it would be reasonable to expect in these circumstances that Mr Fearon would have requested Patient G to provide supporting evidence of his claim that he had been given a prescription for the Primoteston dispensed in May 2014. We find it more likely than not that Mr Fearon dispensed Primoteston to Patient G without a written prescription on 14 May 2014. 6. In respect of the drugs dispensed at Karabar to Patient G, the evidence is more difficult to assess. Patient G is not an independent witness. Serious doubts about the truthfulness of his evidence arise from the fact no prescription was found at the Queanbeyan pharmacy and he never presented any other documentary confirmation of having ever had such a prescription. 7. The similarities between the cases proven against Mr Fearon and these transactions are, again, striking. It is also an interesting coincidence that Patient G seems to have followed Mr Fearon from pharmacy to pharmacy to have his drugs dispensed. Although an innocent explanation, their friendship, may account for this, the lack of documentation suggests that the real motivation was more likely to be that Mr Fearon was willing to provide the drugs without prescription. Without independent evidence supporting either Patient G's testimony, in all the circumstances we cannot accept him as a witness of truth in respect of the prescriptions he alleges he presented. In our view it is more probable than not that Mr Fearon dispensed the restricted drugs both at Queanbeyan and Karabar to Patient G without a prescription. 8. Particular 9 is established. Did Mr Fearon supply Duromine and Alprazolam to Patient H and Patient I without a written prescription? 1. Particulars 10 and 11 read: On 10 November 2013, the practitioner supplied 30 x 40mg Duromine capsules and 100 x 2mg Alprazolam, a Schedule 4D drug, to Patient H without a written prescription of an authorised practitioner. On 10 November 2013, the practitioner supplied 30 x 30mg Duromine capsules to Patient I without a written prescription of an authorised practitioner. 1. Patient H and Patient I share the same surname as Patient D. In a statement provided to Police in May 2015, Patient D denied being related to Patient H and Patient I. Mr Fearon claims not to know Patients H and I. Apparently; the Police were unable to locate either Patient H or Patient I. 2. The patient histories produced for Patients H and I record Mr Fearon as being the dispensing pharmacist for the Duromine and Alprazolam, allegedly supplied on 10 November 2013. Like Particulars 7 and 8 there is no direct evidence that a search was conducted in respect of the subject prescriptions. 3. Nevertheless, for the same reasons we have given in respect of Particular 6, we are satisfied that it is more probable than not that these supplies took place as is alleged in the Complaint. Did Mr Fearon dispense Alprazolam and Diazepam to Patient J without a written prescription on 22 June 2014? 1. Particular 13 reads: On 12 February 2014, the practitioner supplied 50 x 2mg Alprazolam, a Schedule 8 drug, and 50 x 5mg Diazepam to Patient J without a written prescription of an authorised practitioner. 1. This particular is based on the patient history in respect of Patient J supplied by Mr Hasan to Police in May 2015. That history records Mr Fearon as being the dispensing pharmacist and the prescriber as being Canberra Hospital. 2. Mr Fearon denies this particular. He claims that he did not create the dispensing records for Patient J and asserts he was not working on 12 February 2014, which fell on the day after his 30th birthday celebrations. He claims that any drugs dispensed to Patient J were issued after presentation of a valid prescription. 3. In a statement dated 22 June 2017, Patient J wrote that he had been prescribed Diazepam but had never been prescribed Aprazolam. He claimed the allegation that Mr Fearon had supplied him these drugs without a prescription, was "completely false". He claimed that Mr Fearon had never supplied him with medication without a prescription. 4. In contrast to Particulars 8, 10, and 11, here there is direct evidence that the Pharmacy did not hold a valid prescription for the drugs the subject of this Particular. In a statement dated 16 May 2015, Detective Senior Constable McDarmont wrote that he reviewed all prescriptions and repeat authorisation records held by Blooms The Chemist, Queanbeyan for 12 months to January 2015 and found no prescriptions in the name of Patient J. 5. Patient J and Mr Fearon claim they have known each since early 2014 and see each other on an occasional basis, at the gym and around town. 6. The issue to be determined is whether we can be satisfied on the available evidence that the records the subject of this Particular were created by Mr Fearon and whether as alleged Mr Fearon dispensed Diazepam and Alprazolam to Patient J on 12 February 2014. There is no evidence to corroborate or disprove Mr Fearon's claim that he was not working on 12 February 2014. 7. If, as claimed, Mr Fearon was not working at the Queanbeyan pharmacy on 12 February 2014, it follows that the patient history in respect of Patient J supplied by Mr Hasan was made by some other person. For the reasons given above, we find it implausible that another pharmacist used Mr Fearon's name to falsify a record in the name of Patient J. Again, there are striking similarities between the Patient J transaction and those proven against Mr Fearon. It also seems unlikely that a pharmacist other than Mr Fearon would dispense restricted substances to one of Mr Fearon's friends then falsify the records to make it look like it was his transaction. His claim that he did not go to work on the day after his birthday also lacks inherent credibility without corroboration. Without some independent evidence to support Mr Fearon's claim that he was not at work on that day, we think it more likely than not that he dispensed Diazepam and Aprazolam to Patient J on 12 February 2014. 8. Particular 13 is established. Did Mr Fearon dispense supply Methoblastin, Duromine, and Diazepam to Patient K without a written prescription? 1. Particular 14 reads: The practitioner supplied, the following drugs on the following dates to Patient K without a written prescription of an authorised practitioner: (a) 50 x 10mg Methoblastin tablets on 23 May 2014; (b) 30 x 40mg Duromine capsules on 3 June 2014; (c) 50 x 5mg Diazepam tablets on 3 June 2014. 1. This particular is based on the patient history in respect of Patient K supplied by Mr Sahu-Khan to Police in May 2015. It records that each supply was dispensed at the Karabar pharmacy, and that Mr Fearon was the dispensing pharmacist. Woden Valley Hospital is recorded as the prescriber of the Duromine. In relation to the Methoblastin and Diazepam, Mr Fearon himself is recorded as the prescriber. 2. Mr Fearon claims to have known Patient K for a number of years. Each claim they now have little to do with the other and occasionally see each other around town. Mr Fearon denies dispensing to Patient K, Duromine and Diazepam tablets without a written prescription. He admits dispensing Methoblastin to Patient K but denies doing so without a written prescription. In addition, he denies that he was responsible for entering the name Woden Valley Hospital as the prescriber. 3. In a statement dated 26 June 2017, Patient K wrote that he presented a valid prescription for Methoblastin. In support of that claim, he provided a copy of a repeat authorisation for Methoblastin. He denies receiving either Duromine or Diazepam from Mr Fearon. 4. The Commission points to a number of discrepancies between the copy of the repeat authorisation provided to the Tribunal by Patient K and the relevant entry in his Patient History: (i) the patient history records Mr Fearon as the prescriber; the copy of the repeat authorisation provided to the Tribunal records the prescribing practitioner as Patient K's GP; (ii) the patient history records Nil repeats, the repeat authorisation records two repeats. As the supplies took place in the Karabar pharmacy there is no evidence of a search being conducted for them. 5. The evidence is equivocal in relation to this particular. Although, because of the apparent similarity between the transactions proven to be illicit and this one, suspicion inevitably arises, those similarities are insufficient of themselves to establish this particular. The fact that Patient K had apparently received a script at some time for Methoblastin, although the repeat does not fit the patient history record, further complicates the picture. Although some doubts arise about the reliability of Patient K's evidence, it cannot be dismissed entirely. In our view, as in relation to Particular 8, the evidence in relation to this particular is too inexact, indefinite and indirect to prove it to the necessary standard. Did Mr Fearon give false and misleading information to Police in relation to Patient D in an interview with Police on 14 November 2014? 1. Complaint 2 reads: 1. During an interview on 14 November 2014 with Queanbeyan Police ('the Police interview'), the practitioner knowingly provided false and/or misleading information to Police in relation to Patient D in that he stated: (a) that he was friends with Patient D; (b) that he had known Patient D for 'about 10 years' and that he met him 'through a friend of a friend' (c) that Patient D was prescribed Duromine, Diazepam and Novorapid by a medical practitioner; (d) that Patient D was a 'pretty big lad', had anxiety, and was diabetic; (e) that on 12 November 2014, he dispensed Propecia, Duromine, Diazepam and Sifol to Patient D without a valid prescription "cause he has had them in the past" in circumstances where Patient D asserts in a police statement dated 12 May 2015 that he has never attended the Pharmacy Queanbeyan or Karabar. 1. Mr Fearon denies Complaint 2 but admits providing "these medications without a written prescription", and acknowledges this was "completely in breach of my obligations". 2. In written submissions, the Commission accepted that Mr Fearon and Patient D are long-time friends. (See Submissions prepared by the Commission, 15 November 2017 at [60]). Given this apparent concession, we proceed on the basis that the only sub-particulars in dispute are paragraph (c), (d), and (e) of Particular 1 of Complaint 2. 3. As we noted above, tendered in these proceedings are two conflicting statements purportedly prepared by Patient D: a statement provided to Police dated 12 May 2015 and a statement prepared at the request of Mr Fearon dated 27 June 2017. Neither addresses the statement made by Mr Fearon during the Police interview that Patient D was a "'pretty big lad', had anxiety, and was diabetic". 4. We have no material before us to assist us determine the question of whether Patient D is in fact a 'pretty big lad', with anxiety and diabetes. On the available material we could not be satisfied that the impugned statement is false and/or misleading. Was the statement made by Mr Fearon that "Patient D was prescribed Duromine, Diazepam and Novorapid by a medical practitioner" false and misleading? 1. The patient history of Patient D, provided by Mr Hasan to Police in May 2015 records that in 2014, Mr Fearon supplied Patient D with Duromine on 13 occasions, Diazepam on 10 occasions, and NovoRapid on two occasions. All supplies were made from the Queanbeyan pharmacy. As discussed above a search conducted by Police revealed that the Queanbeyan pharmacy held no prescriptions or repeat authorisations, issued in the name of Patient D. 2. The record of the Police Interview, records Mr Fearon being asked a series of questions about drugs supplied to Patient D. He was then asked whether Patient D had presented prescriptions for those drugs: Q: So you saw a script every time one of these was filled, or you retained that script every time it was filled? A: There should be prescriptions for probably 90% of them. I think there's some I've gotta get the scripts off him for, but that was, that would have only been recently. 1. In his statement dated 27 June 2017, Patient D wrote that he has "been issued numerous prescriptions for medications for various medical ailments by many practitioners over the years, including … the dates … some were filled at Blooms the Chemist, Queanbeyan and Karabar". That claim is untested and unsupported and contradicts the earlier claims made by Patient D in the 2015 statement, of never having been to the Queanbeyan pharmacy to have a prescription filled, or having any current medical conditions, which require prescription medication. 2. There is no reliable evidence that Patient D was prescribed Duromine, Diazepam, and Novorapid by a medical practitioner during the period of the Complaint, or indeed any other time. The Police found no prescriptions or repeat authorisations issued in the name of Patient D after searching the records of the Queanbeyan pharmacy. The inescapable conclusion is that the statement made by Mr Fearon during the Police interview that Patient D was prescribed Duromine, Diazepam, and Novorapid by a medical practitioner was false, and Mr Fearon knew it to be false. Was the statement made by Mr Fearon on 12 November 2014, that he dispensed Propecia, Duromine, Diazepam, and Sifol to Patient D without a valid prescription "cause he has had them in the past" false and/or misleading? 1. The records of the Police interview records Mr Fearon being asked whether he had received a prescription for the Propecia, Duromine, Diazepam, and Sifol dispensed to Patient D on 12 November 2014 and Mr Fearon replying: No I haven't got those scripts yet. … Yep. And I'm, this is really stupid of me. I gave those under the premise, I haven't actually seen the prescription, I gave those on the premise that he will get the prescription, cause he has had them in the past. (Emphasis added.) 1. It would appear that the statement, "I gave those on the premise that he will get the prescription, cause he has had them in the past", is a reference to the practice of dispensing drugs on the basis of an "owing prescription", a practice referred to by Mr Fearon in at earlier part of the interview. 2. The PTGR permits a pharmacist in emergency circumstances to supply a restricted substance, but not a prescribed restricted substance without a prescription: 45 Emergency supply by pharmacists otherwise than on direction of health practitioner (1) A pharmacist may supply a person with a restricted substance (other than a prescribed restricted substance) if the pharmacist is satisfied: (a) that the person is undergoing treatment essential to the person's well-being, and (b) that the substance has previously been prescribed for the treatment, and (c) that the person is in immediate need of the substance for continuation of the treatment, and (d) that, in the circumstances, it is not practicable for the person to obtain a prescription for the substance from an authorised practitioner. (2) A restricted substance may not be supplied to any person under this clause unless: (a) the quantity supplied is no more than that required for 3 days' treatment, or (b) in the case of a liquid, aerosol, cream, ointment or anovulant tablet that is contained in a standard pack, the standard pack is the smallest standard pack in which that kind of liquid, aerosol, cream, ointment or anovulant tablet is generally available. 1. Leaving to one side the issue of whether, as asserted by the Commission, Mr Fearon misunderstood the rules governing the supply of restricted substances without a prescription, or whether the PTGR permitted Mr Fearon to dispense Propecia, Duromine, Diazepam, and Sifol on 12 November 2014 without a prescription, the reason he gave for his actions — because he anticipated that Patient D would obtain and present a valid prescription "cause he has had them in the past" — is false and Mr Fearon knew that to be the case. The available evidence reveals that during the period of Mr Fearon's employment, despite receiving 36 supplies of drugs, Patient D never provided a prescription. Is Particular 1(b) of Complaint 1 established? 1. Particular 1 of Complaint 1 reads: On 14 April 2014 and 29 July 2014, whilst at the Pharmacy Queanbeyan, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to himself without a written prescription of an authorised practitioner in circumstances where: (a) the practitioner entered the prescribing doctor as Canberra Hospital in his dispensing records at the Pharmacy Queanbeyan; and (b) the drugs were in a quantity or for a purpose which did not accord with recognised therapeutic standards of what was appropriate in the circumstances, where the practitioner knew or ought to have known that the substance was being abused for non-therapeutic purposes contrary to Regulation 54 of the Poisons and Therapeutic Goods Regulation 2008 ('PTGR'). 1. It is not in issue, as the Commission alleges in Particular 1 of Complaint 1, that Mr Fearon self-supplied 3 x 250mg ampules of Primoteston Depot without a written prescription on 14 April 2014 and 29 July 2014. While Mr Fearon had been given a valid prescription for Primoteston by his endocrinologist on 15 July 2014, he did not present that prescription when he dispensed that drug to himself 14 days later. The prescription was found in Mr Fearon's car by Police later that year. 2. Mr Fearon admits sub-particular 1(a), that is, in respect of each supply, entering in the dispensing record, the name of the prescriber as Canberra Hospital. 3. To put the submissions made by the parties in context, it is necessary to outline the history of the treatment received by Mr Fearon from endocrinologist, Associate Professor Wilson. 4. In October 2007, Mr Fearon was referred by his GP to Associate Professor Wilson for reported nipple discharge. Mr Fearon remained in the care of Associate Professor Wilson until July 2014. 5. Mr Fearon tendered in these proceedings, copies of a series of medical reports sent by Associate Professor Wilson to Mr Fearon's GP between October 2007 and July 2014. In an initial report to the GP, Associate Professor Wilson wrote that Mr Fearon is "a very muscular individual who has clearly been taking steroids of some description". Noting that Mr Fearon had provided him with the details of "agents" he took in the USA in early 2007, Associate Professor Wilson commented "most of these are androgen-like substances". Associate Professor Wilson went on to write that he "strongly recommended" that Mr Fearon stay off androgen and informed him of the consequence of continuing to take androgen: "future infertility, liver damage and the potential for vascular disasters". 6. In reports to the GP prepared in January 2008, April 2008 and February 2009, Associate Professor Wilson noted that testing revealed Mr Fearon's testosterone levels to be "marginally low". In a report dated 10 February 2009, Associate Professor Wilson wrote: If one was forced to give this man testosterone it would certainly diminish his sperm count and that would be counterproductive given he is a young man who may have aspirations to father children in the future. At the moment I think treating him would do more harm than good and therefore I have encouraged him to continue without treatment. I still find it of interest that he has got very significant muscular development despite his testosterone level and his reassurance about what he takes or doesn't take. 1. In September 2009, after assessing Mr Fearon, Associate Professor Wilson decided to put him on Testogel (a drug used to replace testosterone) for a period of six months to treat "depressed libido". In a letter to the GP of 28 September 2009, Associate Professor Wilson expressed scepticism about Mr Fearon's denial of androgen abuse: He vigorously denies Androgen abuse, but given his testosterone has been persistently low and he has very impressive muscles, I am difficult to persuade. He has a very good sperm count. His partner complains vigorously that he has no libido. I have explained to him that giving him testosterone can bring up his testosterone level, but would be likely to impair his fertility. Because of the issue of libido, he is prepared to accept that. 1. Six months later when assessing Mr Fearon, Associate Professor Wilson noted testing revealed Mr Fearon's testosterone level to be high. In a letter dated 11 March 2010, Associate Professor Wilson informed the GP that he had decided to reduce the dosage of Testogel noting that he was "still very sceptical why this man is on testosterone in the first place". 2. In June 2011, Associate Professor Wilson informed the GP that recent blood tests revealed that Mr Fearon's testosterone levels were "definitely low" and subject to the results on testing, Mr Fearon will probably be going back on testosterone "long term". 3. Between August 2011 and July 2014, Associate Professor Wilson prescribed Mr Fearon anabolic steroids for the treatment of low testosterone, initially Sustanon 250, and from March 2012 when Sustanon was withdrawn from the market, Primoteston. 4. In oral evidence, Mr Fearon claimed that the reason he self-supplied Primoteston in April 2014 without a prescription was because pressures of work meant he had not had an opportunity to see Associate Professor Wilson since September 2013. With respect to the self-supply on 29 July 2014, he claimed that he had intended to reconcile the supply with the prescription issued by Associate Professor Wilson on 15 July 2014 and had simply not got around to the task. Was the self-supply of 3 x 250mg ampules of Primoteston Depot in a quantity or for a purpose which did not accord with recognised therapeutic standards of what was appropriate in the circumstances? 1. Sub-particular 1(b) requires the Commission to establish that: 1. the supply of 3 x 250mg ampules of Primoteston Depot in April 2014 and July 2014 was in a quantity or for a purpose which did not accord with recognised therapeutic standards of what was appropriate in the circumstances, and 2. Mr Fearon knew or ought to have known that the substance was being abused for non-therapeutic purposes contrary to reg 54 of the PTGR. 1. Regulation 54 of the PTGR states: QUANTITY AND PURPOSE OF SUPPLY TO BE APPROPRIATE An authorised practitioner or pharmacist must not supply any restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. 1. In support of the contention that the supply of 3 x 250mg ampules of Primoteston in April 2014 and July 2014 was in a quantity or for a purpose which did not accord with "recognised therapeutic standards of what was appropriate in the circumstances", the Commission relies on the following. First, the admission made by Mr Fearon that he did not disclose to Associate Professor Wilson that throughout the first half of 2014 he was concurrently taking additional testosterone, namely Proviron, a prescribed restrictive substance. Second, the discrepancy between the history recorded by Associate Professor Wilson in September 2013 that Mr Fearon told him he had decided to stay on Primoteston because he "has actually given up the pursuit of fertility at the moment" and Mr Fearon's admission, confirmed by his wife, that at the time, they were trying to conceive. Third, the scepticism expressed by Associate Professor Wilson throughout his reports about Mr Fearon's denial of anabolic steroids abuse. Fourth, the evidence that while in the USA, Mr Fearon had self-medicated using anabolic steroids to increase muscle mass. 2. As the series of reports tendered in these proceedings reveal, Associate Professor Wilson was sceptical about Mr Fearon's denial of concurrent androgen use. Nonetheless, apparently on the basis of Mr Fearon's self-report of low libido and the history of low testosterone levels revealed on testing, in September 2009, Associate Professor Wilson commenced prescribing Testogel, and in August 2011, Sustanon 250 and from March 2012, Primoteston. 3. The Commission does not suggest that on the basis of the history given by Mr Fearon, together with the results of testing, either the purpose for which Associate Professor Wilson prescribed Primoteston, namely to treat depressed libido, or the amount prescribed, 250mg every six weeks, did not accord with recognised therapeutic standards. Rather the Commission contends that in circumstances where Mr Fearon was concurrently taking additional testosterone, namely Proviron, the purpose for which, and the amount of Primoteston supplied, did not accord with recognised therapeutic standards. Neither party requested Associate Professor Wilson nor any other health practitioner to provide an opinion about whether in circumstances where Mr Fearon was concurrently taking Proviron, the supply of Primoteston was for a purpose, or in a quantity, that did not accord with those standards. 4. Mr Fearon's failure to disclose to Associate Professor Wilson, in July 2014, that he was taking Proviron suggests that he had doubts about whether Associate Professor Wilson would have continued to prescribe Primoteston had he been aware of that fact. Nonetheless, of itself that does not establish that the purpose for which Associate Professor Wilson prescribed Primoteston and/or the quantity he prescribed, did not accord with recognised therapeutic standards. The Commission may be correct that in circumstances where Mr Fearon was concurrently taking Proviron, the supply of 3 x 250mg ampules of Primoteston in April 2014 and July 2014 was in a quantity and/or for a purpose which did not accord with recognised therapeutic standards. However in the absence of expert opinion, that proposition is not established. 5. Particular 1(b) fails. Summary 1. Particulars 1(a), 2, 3, 6, 7, 9, 10, 11, 12, 13, and 15 of Complaint 1 are established. The balance of Complaint 1 fails. 2. Sub-particulars 1(c) and 1(e) of Complaint 2 are established. The balance of Complaint 2 fails. 3. Mr Fearon admits to Complaint 5 (being convicted of the offences of "supply of certain substances otherwise than by wholesale" under s 10(1) of the PTGA and possessing a prohibited drug, Dimethylamylamine under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW)). In addition, he admits to Particular 2 of Complaint 3 that is, failing as required by the National Law to notify the Pharmacy Board of Australia within seven days that he had been the subject of a finding of guilt in respect of the offences, for which he was convicted. Mr Fearon claims the reason he failed to notify the Pharmacy Board was that he had mistakenly assumed that his lawyers had attended to this task. Nonetheless, he accepts that he bears responsibility for this failure. Further he admits that that conduct together with his convictions for drug-related offences, constitutes both unsatisfactory professional conduct and professional misconduct. Is Mr Fearon a suitable person to hold registration as a pharmacist? 1. In Complaint 6 the Commission alleges that Mr Fearon is not a suitable person to hold registration in the practice of pharmacy. In support, the Commission relies on Complaints 1, 2, 3, and 5. 2. The expression "not a suitable person to hold registration" is not defined by the National Law. Section 55 of the National Law provides some guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 of the National Law states that a National Board may decide that an individual is not a suitable person to hold general registration, if, among other things: ... (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or ... (h) in the Board's opinion, the individual is for any other reason – (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. 1. The meaning of the expression "not a suitable person to hold registration" in s 114(e) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 (Brush) at [72], [73]: [I]n considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and takes their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills. 1. That interpretation was cited with approval by the Tribunal (A/DCJ Boland presiding) in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD and the Court of Criminal Appeal in Jung v R [2017] NSWCCA 24 at [56]. 2. Section 114 of the National Law states: The following complaints may be made about a registered health practitioner: (a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) A complaint the practitioner is not competent to practise the practitioner's profession. (d) A complaint the practitioner has an impairment. (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. (Emphasis added.) 1. In our view, the expression "is otherwise not a suitable person" in para (e) should be interpreted as referring to the matters listed in the preceding four paragraphs. Adopting that approach, it falls to the Commission to establish that Mr Fearon is not a suitable person to hold registration in the profession of pharmacy, on grounds other than those listed in paragraphs (a) to (d) of s 114 of the National Law. 2. In our view, in the absence of a cogent reason, a pharmacist who in breach of the PTGR knowingly supplies prescribed medication, in particular, restricted substances and drugs of addiction, without a prescription or repeat authorisation, is unfit to hold registration as a pharmacist. That conduct not only constitutes an offence and puts at risk the health and safety of members of the public, it demonstrates a lack of integrity. The effectiveness of the statutory scheme governing the retail supply of prescribed substances and drugs of addiction requires pharmacists to act with integrity and to scrupulously adhere to the statutory requirements governing the supply of those drugs. 3. There can be no argument that at the time of the conduct that is the subject of Complaint 1, Mr Fearon was not a suitable person to hold registration as a pharmacist, on account of his conduct of repeatedly supplying prescribed medication without prescription. However, the issue raised by Complaint 6 is whether Mr Fearon is currently not a suitable person to hold registration. 4. In support of his claim that he is a suitable person to hold registration, Mr Fearon points to the following. 5. First, the opinion of persons of good repute who are aware of the facts of the Complaint but nonetheless attest to his good character. In these proceedings Mr Fearon tendered a number of character references. Since early 2017, Mr Fearon has worked in the Financial and Business Services unit of the Australian National University. His supervisor, Dean Pyke, describes Mr Fearon as a "model employee", who is "driven and dedicated whilst upholding integrity and probity as an employee, father and person". Mr Fearon's mother-in-law, Maria Honeybone, a registered nurse specialising in the field of mental health, wrote that the matters the subject of the Complaint struck her as "uncharacteristic aberrations" and she is aware of Mr Fearon's "most complete and sincerest regret". She observed that the offending conduct occurred during a period when Mr Fearon and her daughter were undergoing assisted fertility treatment, a time when each were under great strain. She wrote that throughout this period she was extremely concerned for Mr Fearon's mental health. Ms Honeybone wrote that this is the first and only occasion Mr Fearon's reputation has been brought into question and she is confident this will not reoccur. Mr Fearon's wife wrote in similar terms describing the conduct the subject of the Complaint as out of character and pointing out that it occurred during a period where she and Mr Fearon were under great emotional and financial pressure. These opinions about Mr Fearon's character were echoed by Mr Fearon's father, and Kieron Winfield; a family friend, in character references each provided. 6. Registered pharmacist, Dr Tracy Massil, worked with Mr Fearon, from April 2011 to June 2013. In a reference, tendered in the criminal proceedings, Dr Massil wrote that throughout the period she worked with Mr Fearon, initially as an intern pharmacist and, from March 2013, as a registered pharmacist, he demonstrated "honesty, responsibility, knowledge and respect to the profession and customers". She wrote that she was shocked and surprised to hear that Mr Fearon had been charged with criminal offences, given that her experience was that Mr Fearon was "always responsible and conscientious in following pharmacy rules and regulations". She wrote that the conduct which led to Mr Fearon being charged was out of character and she "strongly believes" he is very remorseful and regrets his actions. 7. Second, Mr Fearon's claim that he no longer associates with the people to whom he supplied drugs without prescriptions. He argues that as a result he will no longer be subject to pressure from these people to supply medication without prescription. 8. Third, his changed personal circumstances and a young family to support. He claims that throughout the three years his registration has been suspended, he has reflected on his actions and matured. He argues that the Tribunal can be confident that he would never again jeopardise his family's financial and emotional well-being. Consideration 1. Mr Fearon claims that his motive for dispensing drugs without a prescription was a "desperately misplaced and poorly judged means … to assist friends acquire medications". He states that while he accepts "full responsibility" for his actions, he believes he was "taken advantage of by those receiving the medications" and supplied the drugs on the promise of prescriptions being provided. 2. Were it not for the evidence relating to Patient D, the explanation given by Mr Fearon for the reason he dispensed drugs to friends and acquaintances without a prescription might be plausible. In the main, the patients listed in Particular 1 of Complaint 1 to whom Mr Fearon supplied prescription medication without a prescription, were supplied that medication on two or three occasions. However, the facts relating to the dispensing history of Patient D are very different. Over a period of some 11 months, Mr Fearon made 36 supplies of prescribed medication to Patient D on 12 different days, without ever receiving a written prescription. Notwithstanding his youth, inexperience, the pressures of work and trying personal circumstances, it is implausible that at least after the first few supplies, that Mr Fearon would have not come to the realisation that the alleged undertaking to supply the promised prescriptions given by Patient D had not been, and was not likely to be, honoured. The inescapable conclusion is that Mr Fearon dispensed prescription medication to Patient D, knowing that a prescription had not been supplied and not holding a reasonable expectation that one would be supplied in the future. On the available evidence, it is not possible to be confident one way or another if the arrangement for the supply of prescribed medication, initially at least, rested on an alleged promise given by Patient D to provide a prescription after the medication had been dispensed. We can be satisfied, however, given the long history of multiple supplies, that Mr Fearon did not as claimed, hold the genuine belief that the promised prescription(s) would materialise at some point in the future. This conduct demonstrates not just a technical beach of the rules governing the supply of prescription medication, or naivety and inexperience on the part of Mr Fearon, but a lack of integrity. 3. A puzzling feature of this case is why a person with an unblemished record, held in high regard by people of good repute, over an extended period dispensed medication to friends and acquaintances, including restricted substances and drugs of addiction, without a prescription. We accept that Mr Fearon regrets his actions and, in particular, the emotional and financial havoc it has wreaked on his family. It may be that, combined with the public opprobrium of being found guilty of criminal offences, this will be sufficient to deter him from repeating the conduct found proven in relation to Complaint 1. However, in circumstances where he has failed to give a credible explanation for providing over an extended period prescription medication without a written prescription, we are not satisfied that Mr Fearon now possesses the qualities of integrity and scrupulosity, necessary to practise the profession of pharmacy. 4. We find that Mr Fearon is not a suitable person to hold registration as a pharmacist. What protective orders should be made? 1. The Commission urges the Tribunal to make an order to cancel Mr Fearon's registration. In addition, the Commission seeks orders that Mr Fearon: 1. be disqualified from being registered for a period of 24 months, and 2. (ii) be prohibited from performing work in pharmaceutical services for the period of the cancellation. 1. Mr Fearon argues that a cancellation order is unnecessarily punitive, given that his registration has been suspended for three years and there is no risk the offending conduct will be repeated. He undertakes to comply with any conditions on his registration the Tribunal considers appropriate but points out that if they were to include restrictions on his ability to dispense Schedule 4 and Schedule 8 drugs, this would severely limit his ability to obtain employment. He expressed his willingness to submit to, among other things, mentoring, undertaking education courses, and regular auditing of his practice. 2. Where a complaint made under the National Law is proven or admitted, the Tribunal may exercise any of the powers in Sub-div 6 of Pt 8 of the National Law. They include the powers to caution, reprimand, impose conditions on a practitioner's registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course. In addition, if satisfied that the practitioner is not a suitable person for registration in their profession, or has been found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration: s 149C(1) of the National Law. 3. The National Law directs that in exercising the power to make an order under Sub-div 6 of Pt 8, the paramount consideration is the protection of the health and safety of the public: s 3A. While the health and safety of the public is the paramount consideration, the jurisdiction exercised by the Tribunal is nonetheless protective not punitive. Any order designed to protect the public from a repeat of the conduct that is the subject of the Complaint found proven, requires an evaluation of the seriousness of that conduct and the nature and extent of any justifiably apprehended harm that might be caused if it were to be repeated. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]. 4. The object of the protection of the public extends beyond the protection of the public from the apprehended harm that might be caused by the practitioner and extends to other public interest considerations. It includes general deterrence and the maintenance of public confidence in the profession. See Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. Consideration 1. For the reasons given above, in our view, Mr Fearon has failed to give a candid explanation for his conduct of supplying to a number of people, prescribed medication, including restricted substances and drugs of addiction, without prescription over an extended period. Without a credible explanation for that apparently uncharacteristic conduct, we cannot be positively satisfied it would not be repeated. For these reasons, and given the gravity of the offences for which he has been convicted, together with the conduct found proven in respect of Complaint 1, we have decided the appropriate order is to cancel Mr Fearon's registration and to disqualify him from seeking re-registration for a period of 12 months. 2. This order, in our opinion, serves the dual purpose of protecting the public from the risk that the offending conduct might be repeated and reminding the profession of the grave consequences of failing to comply with professional standards. Should a prohibition order be made? 1. The Commission seeks an order under s 149C(5) of the National Law prohibiting Mr Fearon from providing "health services", specifically "work in pharmaceutical services", for the period of the cancellation of his registration. 2. The Commission's written submissions do not address the proposed order. We understand the Commission seeks this order because of the concerns about a mooted business partnership between Mr Fearon and one of his referees. According to Mr Fearon, the partnership, which did not eventuate, related to a venture supplying health foods and associated goods. 3. Section 149C(5) of the National Law states: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following-- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. 1. Section 5 of the National Law defines "health service" to include pharmaceutical services. 2. Because of our decision to make an order to cancel Mr Fearon's registration, the power to make a prohibition order can be exercised: s 149C(5A) of the National Law. That power can only be exercised if we are satisfied that Mr Fearon poses a "substantial risk to the health of members of the public" (emphasis added). In evaluating whether Mr Fearon poses a relevant risk, we adopt the approach taken by the Tribunal in Health Care Complaints Commission v Menz (No. 2) [2017] NSWCATOD 172 at [18] and [19] and ask whether Mr Fearon is likely to pose a real and material risk to the health and safety of the public if he were to be involved in the provision of pharmaceutical services other than as a registered pharmacist. 3. The term "pharmaceutical services" is broad in scope and covers a wide range of services. The Commission has not identified the type of pharmaceutical services where Mr Fearon might pose a relevant risk, or the nature of the risk that he might pose. 4. The Commission has failed to discharge the evidentiary burden of establishing that Mr Fearon poses a substantial risk to the health and safety of the public if he were to provide pharmaceutical services in a role other than a registered pharmacist. It follows that the power to make a prohibition order cannot be exercised. Should an order for costs be made? 1. The Commission seeks an order that Mr Fearon pay its costs in these proceedings. Mr Fearon did not make submissions about that application. 2. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. 3. In this case there is no suggestion of any disentitling conduct on the part of the Commission or any factor which might justify a departure from the "usual rule". We have decided to exercise the power to order Mr Fearon to pay the Commission's costs, as agreed or assessed. Orders 1. We make the following orders: 1. If Mr Fearon had been registered the Tribunal would have cancelled his registration. 2. The National Board with which Mr Fearon was registered is to record the fact that the Tribunal would have cancelled his registration in the National Register kept by the Board. 3. Mr Fearon is disqualified from being registered as a pharmacist for a period of 12 months from the date of this decision; 4. Mr Fearon must pay the Commission's costs, as agreed or assessed. NOTE: After the close of submissions and before the decision was made, Mr Fearon's registration as a pharmacist expired and was not renewed. The orders made in the original decision have been amended to reflect that fact. ******** Annexure A The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of New South Wales ("the Council") in accordance with sections 39(2) and 00B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NS14) ("the National Law") HEREBY COMPLAINS THAT MR. NICHOLAS JAMES FEARON of xxx ("the practitioner"), being a pharmacist registered under the National Law, COMPLAINT ONE The Complainant contends that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE The practitioner graduated from the University of Canberra with a Masters of Pharmacy in 2011 and was first registered as a pharmacist on 15 September 2011. At all times relevant to this Complaint the practitioner was employed as a pharmacist at Blooms the Chemist on Crawford Street, Queanbeyan ("the Pharmacy "Quenbeyan"). During this period, the practitioner also worked as a pharmacist at the Blooms Chemist, Karabar ("Karabar"). PARTICULARS OF COMPLAINT ONE 1. On 14 April 2014 and 29 July 2014, whilst at the Pharmacy Queanbeyan, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to himself without a written prescription of an authorised practitioner in circumstances where: (a) the practitioner entered the prescribing doctor as Canberra Hospital in his dispensing records at the Pharmacy Queanbeyan; and (b) the drugs were in a quantity or for a purpose which did not accord with recognised therapeutic standards of what was appropriate in the circumstances, where the practitioner knew or ought to have known that the substance was being abused for non-therapeutic purposes contrary to Regulation 54 of the Poisons and Therapeutic Goods Regulation 2008 ('PTGR') 2. On 20 January 2014 and 14 April 2014, whilst at the Pharmacy Queanbeyan, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 50 x 25mg Proviron tablets, to himself without a written prescription of an authorised practitioner in circumstances where: (a) the practitioner entered the prescribing doctor as Canberra Hospital into his dispensing records at the Pharmacy Queanbeyan; and (b) the drugs were in a quantity or for a purpose which did not accord with recognised therapeutic standards of what was appropriate in the circumstances, where the practitioner knew or ought to have known that the substance was being abused for non-therapeutic purposes contrary to Regulation 54 of the PTGR. 3. The practitioner created a false dispensing record for Patient D at the Pharmacy Queanbeyan for the drugs supplied on the dates as outlined in Schedule A contrary to Regulation 55 of the PTGR in that he entered the prescribing doctor as Canberra Hospital. 4. The practitioner supplied the drugs as outlined in Schedule A to persons unknown and/or for personal use without a written prescription of an authorised practitioner in circumstances where Patient D denies ever attending the Pharmacy Queanbeyan. 5. On 12 November 2014, the practitioner supplied the drugs Propecia, Duromine, Sifrol and Diazepam in the name of Patient D to a third party, not being Patient D, without a written prescription of an authorised practitioner. 6. The practitioner created a false dispensing record for Patient E at the Pharmacy Karabar for the drugs supplied on the dates as outlined in Schedule B contrary to Regulation 55 of the PTGR in that he entered the prescribing doctor as Canberra Hospital Dr Wv Hospital. 7. The practitioner supplied the drugs as outlined in Schedule B to persons unknown and/or for personal use without a written prescription of an authorised practitioner in circumstances where Patient E denies ever attending the Chemist Queanbeyan or Karabar. 8. On 28 August 2013 and 9 September 2013, the practitioner supplied 10 x 50mg Clomid tablets and 30 x 25mg Exemestane tablets, respectively, to Patient F without a written prescription of an authorised practitioner. 9. On 5 October 2013 and 14 May 2014, the practitioner supplied 25 x 10mg Temazepam and restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot, respectively, to Patient G without a written prescription of an authorised practitioner. 10. On 10 November 2013, the practitioner supplied 30 x 40mg Duromine capsules and 100 x 2mg Alprazolam, a Schedule 4D drug, to Patient H without a written prescription of an authorised practitioner. 11. On 10 November 2013, the practitioner supplied 30 x 30mg Duromine capsules to Patient I without a written prescription of an authorised practitioner. 12. On 31 January 2014, the practitioner supplied restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to Patient B without a written prescription of an authorised practitioner. 13. On 12 February 2014, the practitioner supplied 50 x 2mg Aprazolam, a Schedule 8 drug, and 50 x 5mg Diazepam to Patient J without a written prescription of an authorised practitioner. 14. The practitioner supplied, the following drugs on the following dates to Patient K without a written prescription of an authorised practitioner: (a) 50 x 10mg Methoblastin tablets on 23 May 2014; (b) 30 x 40mg Duromine capsules on 3 June 2014; (c) 50 x 5mg Diazepam tablets on 3 June 2014. 15. On 13 November 2014, the practitioner supplied restricted substance AAS, a testosterone based item, namely 6 x 250mg ampules of Primoteston Depot to Patient A without a written prescription of an authorised practitioner. COMPLAINT TWO The Complainant contends that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated. On 14 November 2014 the practitioner was arrested and cautioned at the Pharmacy by New South Wales Police. He was then taken to Queanbeyan Police Station where he consented to and took part in an electronically recorded interview. PARTICULARS OF COMPLAINT TWO 1. During an interview on 14 November 2014 with Queanbeyan Police ('the Police interview'), the practitioner knowingly provided false and/or misleading information to Police in relation to Patient D in that he stated: (a) that he was friends with Patient D; (b) that he had known Patient D for 'about 10 years' and that he met him 'through a friend of a friend' (c) that Patient D was prescribed Duromine, Diazepam and Novorapid by a medical practitioner; (d) that Patient D was 'pretty big lad', had anxiety, and was diabetic; (e) that on 12 November 2014, he dispensed Propecia, Duromine, Diazepam and Sifol to Patient D without a valid prescription "cause he has had them in the past" in circumstances where Patient D asserts in a police statement dated 12 May 2015 that he has never met the practitioner and has never attended the Pharmacy Queanbeyan or Karabar. COMPLAINT THREE The Complainant contends that the Respondent Is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b) of the National Law in that the practitioner contravened a provision of the National Law. BACKGROUND TO COMPLAINT THREE The background to Complaints One and Two is repeated. The practitioner was convicted on 16 September 2015. On 2 November 2015, the practitioner notified the Pharmacy Council of New South Wales through his solicitor that he had been convicted of the criminal offences as outlined in Complaint One. PARTICULARS OF COMPLAINT THREE 1. The practitioner failed to notify the Pharmacy Board of Australia within 7 days of his having been the subject of a finding of guilt on 16 September 2015 in respect of two offences of selling a restricted substance by a non-wholesaler without a written prescription of an authorised practitioner contrary to section 130(3)(a)(ii) of the National Law. 2. The practitioner failed to notify the Pharmacy Board of Australia within 7 days of his having been the subject of a finding of guilt on 16 September 2015 in respect of a third offence of possessing a prohibited drug contrary to section 130(3)(a)(ii) of the National Law. COMPLAINT FOUR The Complainant contends that the Respondent is guilty of professional misconduct under section 139E of the National Law in that the practitioner 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 the practitioner's registration BACKGROUND TO COMPLAINT FOUR The background to Complaints One, Two and Three is repeated. PARTICULARS OF COMPLAINT FOUR 1. Complaints One, Two and Three and the particulars thereof are repeated and relied upon both individually and cumulatively. COMPLAINT FIVE The Complainant contends that the Respondent has been convicted of criminal offences in the State of New South Wales. BACKGROUND TO COMPLAINT FIVE The background to Complaints One and Two is repeated. PARTICULARS OF COMPLAINT FIVE 1. On 16 September 2015, at the Local Court of New South Wales at Queanbeyan, the practitioner pleaded guilty and was convicted of: (a) supplying a restricted substance by a non-wholesaler pursuant to s10(3) of the Poisons & Therapeutic Goods Act 1966 (NSW) ("PTGA") in relation to the following: (i) on 11 July 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance (Anabolic Androgenic Steroids) ("AAS"), a testosterone based item, namely 50 x 25mg Proviron tablets, to himself without a written prescription of an authorised practitioner. (b) Supplying a restricted substance by a non-wholesaler pursuant to s10(3) of the PTGA in relation to the following: (i) on 10 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to Patient A, without a written prescription of an authorised practitioner; (ii) on 22 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 6 x 250mg ampules of Primoteston Depot to Patient A, without a written prescription of an authorised practitioner; (iii) on 10 July 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 3 x 250mg ampules of Primoteston Depot to Patient B, without a written prescription of an authorised practitioner; (iv) on 28 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 6 x 250mg ampules of Primoteston Depot to Patient C without a written prescription of an authorised practitioner; and (v) On 12 November 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substances, namely 30 x 30mg capsules of Duromine and 50 x 5mg tables of Diazepam and the prescribed substances, namely 28 x 1mg tablets of Propecia and 30 x 125mcg tablets of Sifrol to Patient D without a written prescription of an authorised practitioner. (c) Possessing a prohibited drug on 14 November 2014, namely 32.76 grams of Dimethylamylamine, pursuant to s10(1) of the Drug Misuse & Trafficking Act 1985 (NSW). 3. The practitioner was directed to enter into a good behaviour bond for twelve months pursuant to s9(1) of the Crimes (Sentencing Procedure) Act 1999 from 16 September 2015 and was fined $110.00. COMPLAINT SIX The Complainant contends that the Respondent is not a suitable person to hold registration in the practice of pharmacy. BACKGROUND TO COMPLAINT SIX The background to Complaints One and Two are repeated. PARTICULARS OF COMPLAINT SIX 1. Complaints One, Two, Three and Five and the particulars thereof are repeated and relied upon both individually and cumulatively. ************************************ 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 Amendments 29 March 2018 - Pursuant to s63 Civil and Administrative Tribunal Act amendments to Respondent's name; [155]; Order 1; Insert new Order 2 and renumber subsequent Orders. 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: 29 March 2018