Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 Hearing dates: 5 - 8 December 2017 Date of orders: 29 March 2018 Decision date: 29 March 2018 Jurisdiction: Occupational Division Before: A Britton, Principal Member R Jaja, Senior Member D Preswick, Senior Member A Johnston, General Member Decision: 1. Mr Elliott is reprimanded. 2. Mr Elliott is to pay 60% of the costs of the Health Care Complaints Commission, as agreed or assessed. Catchwords: PROFESSIONS AND TRADES — health practitioner — appropriate form of protective orders PROFESSIONS AND TRADES — health practitioner — whether conduct found to amount to unsatisfactory professional conduct is sufficiently serious to amount to professional misconduct COSTS — disentitling conduct displacing the general "rule" that costs follow the event: Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Commonwealth v Gretton [2008] NSWCA 117 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Brunner [2017] NSWCATOD 49 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Do [2014] NSWCA 307; [2017] NSWCATOD 172 Lee v Health Care Complaints Commission [2012] NSWCA 80 NSW Bar Association v Meakes [2006] NSWCA 340 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] Qidwai v Brown (1984) 1 NSWLR 100 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Steve Elliott (Respondent) Representation: Counsel: S Maybury (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridan Lawyers (Respondent) File Number(s): 2017/00191036 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 patients listed in the Schedule to the Complaint is prohibited. REASONS FOR DECISION 1. In 2014, the Pharmacy Services Unit (PSU) of the NSW Ministry of Health conducted an investigation following reports of large quantities of high strength opioids, specifically fentanyl and oxycodone, being ordered by pharmacies on the mid North Coast of NSW. The PSU found that one particular pharmacy, the Tuncurry Pharmacy, Tuncurry had a high rate of dispensing opioids, specifically fentanyl and oxycodone to patients with a past or present Opioid Treatment Program (OTP) history. The OTP provides opioid replacement therapy for drug dependent persons, that is, persons who have acquired, as a result of repeated administration of (a) a drug of addiction, or (b) a "prohibited drug", an overpowering desire for the continued administration of such a drug: s 28 of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA). 2. In 2013, the National Drug and Research Centre reported that in recent years the use of fentanyl in Australia had increased dramatically and had been linked to a rise in overdose deaths among middle-aged Australians. An opioid analgesic, fentanyl is a powerful painkiller, which is 100 times the strength of morphine. Oxycodone, sometimes referred to as "hillbilly heroine", is also a high-strength opioid analgesic. While both drugs have a proper therapeutic purpose, they are also known to be subject to abuse and trafficking. 3. Throughout the period the subject of the PSU's investigation, Stephen Elliott was the pharmacist-in-charge of the Tuncurry Pharmacy. The pharmacy was owned and managed by Mr Elliott's father, Ross Elliott. All references in these reasons to "Mr Elliott" are to Stephen Elliott. 4. The PSU's investigation centred on 14 patients of the Tuncurry Pharmacy of whom 11 were on the OTP and listed in the Ministry of Health's Pharmaceutical Drugs of Addiction System (PDAS). The PSU found that Mr Elliott dispensed "drugs of addiction" to these 11 patients in circumstances where the prescribing medical practitioner lacked the authority to prescribe such drugs to those patients: see s 29 of the PTGA. The PSU found that Mr Elliott had dispensed to the remaining three patients, "excessive doses" of drugs of addiction. 5. A "drug of addiction" is any substance specified in the Poisons List and includes fentanyl and oxycodone: see, ss 4, and 8 of the PTGA, and cl 128P of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR). 6. After receiving the report of the PSU's investigation in relation to Mr Elliott, the Pharmacy Council of NSW (the Council) conducted proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). Effective 13 February 2015, the Council imposed the following conditions on Mr Elliott's registration, namely that he must: 1. Not work in a pharmacy as the pharmacist-in-charge. 2. Immediately upon entering the premises of any pharmacy in which he is employed, notify the pharmacist-in-charge of his presence. 3. Advise the Council of any change of employment prior to commencing new employment. 4. Within seven days of commencing new employment, provide the Council of details of his employer and evidence that the employer has been advised of the conditions. 5. Within seven days notify the pharmacist-in-charge of any pharmacy in which he is employed of these conditions, and provide evidence to the Council that he has done so. 6. Not possess any keys, access codes, smart cards or access cards to any drug safe and pharmacy at which Mr Elliott is employed. Return any keys, access codes, smart cards or access cards to any drug safe and pharmacy in his possession to the respective pharmacies. Not possess, supply, dispense, administer, or manufacture any substance detailed in Schedule 4D (prescribed restricted substance, derivative or compound medication) or Schedule 8 of the NSW Poisons List (drug of addiction, derivative or compound medication) or any other substance detailed in an equivalent list of any other Australian state or territory. 7. Unless it has already occurred, surrender to the PSU his drug authority under the Poisons and Therapeutic Goods Act 1966 (NSW) by 20 February 2015. 1. Conditions 5, 6, 7 were lifted on 19 March 2015. Following an application made by Mr Elliott, on 9 December 2015 the Council removed all remaining conditions. There is no evidence of Mr Elliott failing to comply with any of the conditions. 2. After receiving a referral from the Council, the Health Care Complaints Commission (the Commission) conducted its own investigation into Mr Elliott's conduct and decided to refer a complaint about him to the New South Wales Civil and Administrative Tribunal (NCAT). At the commencement of the hearing, the Commission sought, and was given leave, to make significant amendments to 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. Mr Elliott admits all of the conduct alleged in the Complaint. In addition, he admits that the conduct amounts to "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law. However, he does not admit, as is alleged by the Commission, that the conduct amounts to "professional misconduct" as defined by s 139E of the National Law. 4. The key issues we must decide are: 1. Whether, as alleged by the Commission, and disputed by Mr Elliott, the admitted conduct is of a "sufficiently serious nature" to justify suspension or cancellation of Mr Elliott's registration, that is, that it amounts to "professional misconduct" as defined by s 139E of the National Law. 2. Whether protective orders should be made and, if so, what orders should be made. 3. Whether Mr Elliott should be ordered to pay all of the Commission's costs. The conduct the subject of the Complaint 1. To put the arguments made by the parties in context about whether the conduct the subject of the Complaint (the subject conduct) amounts to professional misconduct, it is necessary to outline the nature and incidence of that conduct, together with the expert opinion about the extent to which it departs from standards reasonably expected of a pharmacist of his level of training and experience. 2. In broad terms, the subject conduct relates to Mr Elliott's actions in dispensing Sch 8 drugs to 10 patients throughout the period June 2009 to June 2015. With respect to each patient it is agreed that Mr Elliott ought to have been aware that they may have a drug dependency. Further, it is agreed that the amount of the subject drug dispensed to each of these patients was in excess of the recognised therapeutic dosage, contrary to cl 109 of the PTGR. It is also agreed that in respect of 9 of the 10 patients, the drug and quantity dispensed did not accord with recognised therapeutic standards of what is appropriate in the circumstances, contrary to cl 109 of the PTGR. 3. Clause 109 of the PTGR states: 109 QUANTITY AND PURPOSE OF SUPPLY TO BE APPROPRIATE An authorised practitioner or pharmacist must not supply any drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances 1. Pharmacists Jack Leigh, Paul Mahoney and Albert Regoli, each provided written opinions about Mr Elliott's conduct. Mr Leigh was requested to provide his opinion at the request of the Commission, Messrs Mahoney and Regoli at the request of Mr Elliott. Each are respected and experienced pharmacists. None was required for cross examination or questioning by the Tribunal. Mr Leigh wrote that the conduct the subject of each complaint attracted his strong criticism; Mr Mahoney stated it attracted his moderate criticism. Mr Regoli concluded that in the main, the conduct attracted either his mild or moderate criticism. 2. The difference in opinions reached by the experts is partially the result of the different factual assumptions on which their respective opinions were based. Of considerable significance was the assumption made by Mr Leigh that throughout the period of the Complaint, individual pharmacists had ready access through the PSU to information about whether a particular individual was registered as a "drug dependent person" on the Pharmaceutical Drugs of Addiction System (PHDAS) and/or the OTP database. Messrs Regoli and Mahoney did not share that view. In the original version of the Complaint, the Commission alleged that Mr Elliott's failure to contact the PSU to establish whether the relevant patient was listed on the PHDAS, was indicative of unsatisfactory professional conduct. The Commission subsequently withdrew this allegation. 3. In Complaint 1, the conduct alleged is that on 13 June 2014 Mr Elliott dispensed Durogesic® (fentanyl) in a dosage that exceeded a therapeutic dose in circumstances where he ought to have been aware that Patient A may have been drug dependent. This was the only transaction relating to Patient A. The Commission's expert, Mr Leigh, was strongly critical. He said that as this was the first occasion he dispensed a Sch 8 drug to Patient A, Mr Elliott should have known that the drug was reserved for opioid-dependent patients and the dosage prescribed was a high starting dose. He was also critical of Mr Elliott's failure to check with the PSU whether Patient A was registered on the PHDAS and/or OTP. Because he did not, he supplied a second high-strength opioid to a patient already on methadone. This, Mr Leigh explained, can be dangerous for the patient but also may give the patient an opportunity to on-sell one of the drugs. In his view, Mr Elliott's conduct was significantly below the appropriate standard. 4. Mr Regoli, on the other hand, offered only mild criticism. He thought it unlikely that a pharmacist would routinely check on a patient before dispensing or as a standard procedure check with the PSU. He did not think that this was the relevant standard. On the evidence before him, Mr Regoli assumed that Mr Elliott did not discuss the prescription with the patient and that was the basis of his criticism. 5. Complaint 2, relating to Patient B, alleges that between 20 June 2013 and 31 December 2013, Mr Elliott dispensed fentanyl and oxycodone (OxyContin®) on 54 occasions in excess dosages, for purposes that did not accord with recognised therapeutic standards in circumstances in which he ought to have been aware that Patient B may have been drug dependent. Each drug was dispensed in an inappropriate combination with the other. In relation to fentanyl, Mr Elliott failed to retain or record any explanatory information provided by the prescribing doctor regarding the reasons for prescribing the drug. 6. Both Mr Leigh and Mr Regoli were strongly critical of Mr Elliott's conduct in relation to this complaint. Mr Leigh reiterated some points, such as the need for a standard procedure of consulting the PSU. His strongest criticism, however, related to the quantity of fentanyl dispensed. He estimated that in a six month period, Mr Elliott dispensed to Patient B enough fentanyl to cover 360 days normal usage. He was also critical of Mr Elliott's over-reliance on the clinical judgment of the prescribing doctor. This did not absolve Mr Elliott from his own responsibilities. He was also critical of the lack of attention Mr Elliott paid to the risk of abuse of the prescribed drugs and the risk that they were enabling the patient to on-sell drugs. He emphasised the need for good record-keeping and was critical of Mr Elliott's failure to make or retain appropriate records concerning the rationale for the prescriptions. Finally, he was strongly critical of Mr Elliott's lack of attention to the risks involved in dispensing both fentanyl and oxycodone in combination. Although Mr Regoli disagreed with Mr Leigh concerning the question of consulting the PSU, he agreed that, in this case, Mr Elliott's conduct had fallen significantly below the appropriate standards and added his strong criticism. 7. In Complaint 3, the conduct related to dispensing oxycodone and buprenorphine to Patient C, between 7 February 2013 and 5 February 2015. In relation to the oxycodone, once again the drugs were dispensed in excessive quantities, for purposes not recognised as therapeutic, in circumstances in which Mr Elliott ought to have known that the patient may be drug dependent. It was also inappropriate to dispense the oxycodone in combination with the other drugs that had been dispensed to Patient C, namely diazepam and quetiapine (Seroquel®) and buprenorphine. The same issues arose in respect of the dispensing of buprenorphine. 8. Once again, Mr Leigh was strongly critical of Mr Elliott's conduct. He repeated his view that Mr Elliott should have consulted the PSU. More relevantly, he was critical of Mr Elliott's over-reliance on the prescribing doctor's judgment. Although he does not say in his report exactly when Mr Elliott should have refused to dispense oxycodone and buprenorphine, he argued that at some point Mr Elliott should have raised concerns with the prescribing and contacted the relevant authorities about the quantity being prescribed. Mr Regoli was less critical of Mr Elliott but expressed the view that his conduct fell significantly below the relevant standard. He stated that his criticism of Mr Elliott was, however, "moderate". 9. Complaint 4 relates to 28 occasions on which Mr Elliott dispensed fentanyl and oxycodone to Patient D, in the period 7 August 2013 to 31 March 2014. The issues were, once again, excessive quantities, inappropriate purposes and inappropriate combination of drugs in circumstances in which Mr Elliott ought to have known that the patient may be drug dependent. 10. Mr Leigh made similar criticisms as in relation to previous complaints. He said that Mr Elliott should not have dispensed the drugs without raising his concerns with the prescribing doctor and the authorities. Mr Regoli thought that Mr Elliott's conduct was "significantly below" the requisite standard but offered moderate criticism only. 11. Complaint 5 concerned Patient E to whom Mr Elliott dispensed fentanyl and oxycodone on 23 occasions between September 2013 and May 2014. The complaint particularised a number of issues: excessive quantities, drugs dispensed for purposes not recognised as therapeutic and inappropriate combination of drugs and circumstances in which Mr Elliott ought to have known that the patient may be drug dependent. In addition, Mr Elliott dispensed drugs in inappropriate combinations with alprazolam (Kalma® and Xanax®), diazepam (Antenex®) and either fentanyl or oxycodone. 12. Mr Leigh's criticisms were similar to those he made in Complaints 1, 2, 3 and 4 in many respects. He considered that Mr Elliott's conduct fell significantly below the standard and was strongly critical. He disapproved of the way Mr Elliott had combined opioids and other drugs, such as benzodiazepines. He was critical of Mr Elliott's over-reliance on the prescribing doctor and considered that Mr Elliott had been inattentive to the risk of drug abuse or misuse on the part of the patient. While Mr Regoli also considered that Mr Elliott's conduct fell significantly below the appropriate standard, he offered criticism at a "moderate" level. 13. Complaint 6 relates to Patient F to whom Mr Elliott relevantly dispensed fentanyl, morphine and oxycodone on multiple occasions between July 2009 and July 2014. There are two distinct periods in this complaint: 29 July 2009 to 2 August 2010 and 7 February 2013 to 28 April 2014. Morphine was dispensed twice in the first period of activity and on three occasions in the second. In the second period, Mr Ellis dispensed fentanyl and oxycodone to Patient F on about 50 occasions. In relation to the fentanyl and morphine, the complaints were that Mr Elliott had, once again, dispensed the drugs in excessive quantities, where the purposes were not recognised as therapeutic, in circumstances in which Mr Elliott ought to have known that the patient may be drug dependent. 14. The third particular of this Complaint was that on 27 February 2013, Mr Elliott dispensed 14 days' supply of oxycodone in circumstances in which he ought to have known that the patient still had about eight days' supply remaining and that there was a risk of the drug being abused. The patient attended the pharmacy in an intoxicated state and Mr Elliott supplied the drug to a friend of Patient F without making inquiries whether it was appropriate for her to receive it. 15. As in relation to the previous complaints, Mr Leigh considered that Mr Elliott was insufficiently attentive to the risk that Patient F may have been opioid-dependent. He was especially critical of Mr Elliott's conduct in dispensing morphine (MS Contin®) to Patient F's friend when the patient had presented in an intoxicated state. In Mr Leigh's view, this should have caused Mr Elliott to suspect that the patient was misusing drugs. He was also of the view that dispensing the drug for Patient F to an unidentified friend was a risky procedure. He considered that Mr Elliott's conduct fell significantly below the appropriate standard and he was strongly critical of it. Mr Regoli was also strongly critical of Mr Elliott's conduct which in his view fell significantly below the requisite standard. 16. Complaint 7 deals with 44 transactions between 9 January 2013 and 18 March 2014 in which Mr Elliott dispensed fentanyl and oxycodone to Patient G. Once again, the issues were excessive quantities, inappropriate purposes, inappropriate combination of drugs and circumstances in which Mr Elliott ought to have known that the patient may be drug dependent. 17. Mr Leigh once again offered strong criticism for reasons similar to those given in relation to other similar cases. While Mr Regoli also considered that Mr Elliott's conduct fell significantly below the appropriate standard, he offered criticism at a "moderate" level. 18. The particulars of Complaint 8 are in similar terms to those in Complaint 7. In this case, Mr Elliott dispensed fentanyl and oxycodone to Patient H on 23 occasions between 17 June 2011 and 5 December 2013. As before, the issues were excessive quantities, drugs dispensed for purposes not recognised as therapeutic, inappropriate combination of drugs and circumstances in which Mr Elliott ought to have known that the patient may be drug dependent. 19. Mr Leigh's strong criticism followed the previous pattern. As in relation to Complaint 7, while Mr Regoli also considered that Mr Elliott's conduct fell significantly below the appropriate standard, he offered criticism at a "moderate" level. 20. Complaint 10 concerned Patient J to whom Mr Elliott dispensed fentanyl four times between 16 August 2013 and 16 September 2013. Mr Leigh's strong criticism, in this case, was that Mr Elliott, again, had been inattentive to the risks of "doctor shopping" and misuse and abuse of dangerous drugs. Mr Regoli considered Mr Elliott's conduct to have fallen significantly below the requisite standard but was moderate in his criticism. 21. Complaint 11 related to another patient, Patient K, to whom Mr Elliott dispensed fentanyl on four occasions between 21 January and 28 March 2014. This was a case similar to that outlined in Complaint 10. Mr Leigh and Mr Regoli took views very similar to those expressed in relation to Complaint 10. 22. Mr Mahoney agreed that Mr Elliott's conduct in relation to each patient fell below standard but offered only moderate criticism in each case. Does the admitted conduct amount to professional misconduct? 1. It is agreed that the conduct the subject of the Complaint constitutes "unsatisfactory professional conduct" as defined by ss 139B(1)(a) and 139B(1)(l) of the National Law: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ... (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The parties agree that the conduct was "improper", but not "unethical" for the purpose of s 139B(1)(l) of the National Law. 2. "Professional misconduct" is defined by s 139E to mean: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. In considering the question of whether Mr Elliott's conduct, proven by his admissions, to amount to unsatisfactory professional misconduct, also amounted to professional misconduct, the starting point is the statute itself. It is evident from s 139E(a) that a single instance of unsatisfactory professional conduct may be sufficient to constitute professional conduct and trigger the discretion to suspend or cancel registration. Alternatively, a number of instances of unsatisfactory professional conduct considered together may be of sufficiently serious nature to justify suspension or cancellation. 2. Whether conduct found to amount to unprofessional misconduct can be characterised as being of a "sufficiently serious nature" to justify an order for suspension or cancellation, requires an evaluative judgement to be made by the Tribunal: Chen v Health Care Complaints Commission [2017] NSWCA 186 (Chen) at [20]. Referring to the definition of professional misconduct contained in the now repealed Medical Practice Act 1992 (NSW), which is in similar but not identical terms to the definition contained in the National Law, Basten JA emphasised that the definition is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made in the particular circumstances: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. 3. In evaluating whether the subject conduct is of a sufficiently serious nature to justify suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the conduct, any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. 4. The seriousness of unsatisfactory professional conduct is to be measured by the extent to which it departs from proper standards. It is not measured by reference to worst cases. That would risk the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638. 5. The Commission accepts that no single instance of unsatisfactory professional misconduct was "sufficiently serious" to justify the sanction of suspension or cancellation. It submits, however, that cumulatively the conduct is "sufficiently serious" to justify an order for suspension or cancellation. In Complaint 15 the Commission nominates the particulars relied upon individually. 6. As discussed, the conduct the subject of the Complaint relates to Mr Elliott's actions in dispensing opioid drugs to 10 patients attending the pharmacy where he was in charge, in circumstances where he ought to have been aware that each patient may been drug dependent. 7. In a series of schedules to the Complaint, the Commission outlined Mr Elliott's dispensing history in respect of the 10 patients. Although the Complaint covers a period from 10 February 2009 to 5 February 2015, the relevant events are concentrated in 2013 and 2014. The drugs of interest dispensed were mainly oxycodone and fentanyl. In relation to all but one patient, Patient A, drugs were dispensed on multiple occasions. In relation to two patients (Patients J and K), drugs were dispensed on two and four occasions, respectively. In most cases, however, the number of times drugs were dispensed was considerably higher: 53 for Patient B; 121 for Patient C; 23 for Patient E; 30 for Patient F; 61 for Patient G; and 19 for Patient H. 8. It was submitted for Mr Elliott that "misconduct in a professional respect" means conduct that incurs the strong reprobation of colleagues of good repute and competence. Frequently, such conduct involves "moral turpitude", but it need not do so: Qidwai v Brown (1984) 1 NSWLR 100, per Priestley JA at 104. For example, conduct that is not a deliberate departure from acceptable standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner may constitute "misconduct in a professional respect": Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 200. Counsel for Mr Elliott submitted that there was no "moral turpitude" on his part and no deliberate deviation or departure from acceptable standards of professional conduct. 9. Second, it is argued there was no "indifference" on Mr Elliott's part to the applicable standards. He gave evidence that he genuinely believed that he was adhering to his legal obligations during the period 2009 to 2015. In particular it was emphasised that he had made regular contact with prescribing doctors. It was put to us that Mr Elliott now realises that he was lacking in a full understanding of the relevant guidelines that govern the prescribing and dispensing of dangerous drugs and has undertaken remedial professional education. 10. Third, it was submitted for Mr Elliott that there were mitigating circumstances in relation to some of the transactions, arising out of the nature of the patients themselves and the prescribing doctors. The patients presented as suffering chronic pain and not obviously as "doctor shoppers". Evidence was given by Mr Mahoney that some patients are very practised in the art of persuading health practitioners of their need for powerful analgesics. It was also argued for Mr Elliott that one of the factors that mitigates the seriousness of his conduct was that many of the patients were being treated by Dr Brunner who Mr Elliott believed, on the basis of the doctor's representations to him, to be a "pain specialist". In essence, Mr Elliott's position is that, because he believed Dr Brunner to a pain specialist, an influx of that doctor's patients seeking powerful analgesics did not raise his index of suspicion as he belatedly realised it ought to have. (In 2017 the Tribunal (differently constituted) found Dr Brunner prescribed drugs of addiction to 12 patients in a quantity in excess of recognised clinical standards without conducting an appropriate clinical assessment. The Tribunal found this conduct amounted to professional misconduct but made no protective orders because Dr Brunner had surrendered his registration and gave a written undertaking not to resume medical practice: see Health Care Complaints Commission v Brunner [2017] NSWCATOD 49.) 11. Fourth, it was submitted that the Tribunal should distinguish this case from other cases in which a profit motive for improperly dispensing drugs has been demonstrated or where the oversupply of drugs has been accompanied by multiple other departures from proper standards, such as failures to maintain records or store dangerous drugs appropriately. Consideration 1. We accept that it is not appropriate to apply a label of "moral turpitude" to Mr Elliott's overall conduct or his conduct in respect of any individual complaint. The real issue for determination is whether the cumulative effect of the proven conduct is so serious that it justifies an order for suspension or cancellation. That evaluation is focused on the nature of the subject conduct itself. Any remedial steps taken by Mr Elliott after the conduct occurred, while relevant to the determination of the form of protective orders, is not relevant to the assessment of the nature of the conduct. It is unnecessary for the Commission to allege or prove bad character on Mr Elliott's part. 2. As Basten JA observed in Chen, at [11]-[13], [20] while, historically, many of the professional discipline cases relating to "misconduct in a professional respect" dealt with issues of moral iniquity, especially those that related to the legal profession, in respect of issues of medical misconduct different issues arose or could arise. In particular, there is a distinction between cases of defective character and cases of incompetent professional care. Payne JA at [60] also underlined this point: the decisions in Qidwai and Pillai related to regimes that differ in fundamental ways from the terms found in the National Law. Hence, in our view, questions of the approbation or disapprobation of leading members of a health profession are not directly relevant to the proper characterisation of the actual conduct in question. 3. Much more significant is the issue of the protection of the public from poor health practice. Of course, poor health practice may lead to reprobation of the practitioner by his or her peers but it is unnecessary for the Commission to prove this. The test is objective: was the conduct sufficiently serious to justify the Tribunal to suspend or cancel the registration of the practitioner in question so as to ensure the protection of the public? In Chen, the Court of Appeal dealt with an appeal by a medical practitioner whose registration had been cancelled by the Tribunal in relation to over-prescribing of prescription drugs of addiction in relation to 15 patients, and failure to keep proper records. While the main judgment dismissing the appeal was given by Payne JA, Basten JA made a number of observations on the question of when the power to cancel or suspend a practitioner's registration was triggered. Among other things relevant to the submissions made in this case, he said at [20]: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 1. In our view, Mr Elliott's admitted conduct, while not motivated by bad intentions, was seriously incompetent over a significant period of time. Pharmacists, once registered, are placed in a position of trust and have responsibilities, among other things, for protecting the public from the misuse and abuse of drugs of addiction. Both Mr Elliott's and the Commission's experts agreed that the subject conduct fell below the standard reasonably expected of a practitioner of Mr Elliott's training and experience. While the Commission's expert, Mr Leigh, was strongly critical of Mr Elliott's conduct in relation to all the individual complaints, Mr Regoli had a more nuanced analysis, assessing some failures as serious departures from appropriate standards but others as relatively less critical defects in proper procedure. Mr Regoli was very critical of the conduct outlined in Complaints 2, 6 and 7. He made moderate criticisms of the conduct outlined in Complaints 3, 4, 5 and 8 to 10. He had only mild criticism of the conduct outlined in Complaint 1. In our view, it is self-evident, as a matter of common sense as well as evidence, that some conduct is more or less serious than other conduct. 2. Mr Elliott was dispensing considerable quantities of Sch 8 drugs over a lengthy period, but especially in 2013 and 2014. In our view, in those circumstances any trained pharmacist operating at the general standard required of his or her profession would have become highly attuned and attentive to the potential risks of dispensing such quantities of drugs. In particular, it would be reasonable to expect an experienced pharmacist to be alert to the possibility – perhaps even the probability – that some of the patients were likely to be opioid-dependent and therefore more likely than other patients to simulate symptoms in order to obtain prescribed drugs, to involve themselves in "doctor shopping" or to misuse drugs. 3. Pharmacists are gatekeepers with responsibility, among other things, for dispensing drugs of addiction. To assist them in that serious task, regulations and guidelines are imposed so that the very real risks involved in dispensing drugs of addiction can be managed and mitigated. As the National Law emphasises, the protection of the public is paramount. And some members of the public, such as drug dependent patients, need protection from themselves. Medical practitioners and pharmacists share significant responsibility and are required to exercise their individual clinical judgments to ensure that individual consumers and the public are protected. The more experienced a pharmacist becomes, the better that practitioner's judgment might be expected to be. A pharmacist's failure to be attentive, or sufficiently attentive to the self-evident risks of dispensing Sch 8 drugs, undercuts the protective structure which the regulations and guidelines are intended to erect for the benefit of individual patients and the community as a whole. 4. When compounded by a pharmacist's effective failure to exercise clinical judgment by, for example, not raising appropriate concerns with prescribing doctors (who may themselves be falling short of professional standards), the protective structure is rendered virtually useless. This would reduce a pharmacy almost to a supermarket level where customers can help themselves to whatever they want, no questions asked. In this case, even his own expert, Mr Regoli, considered that Mr Elliott had fallen significantly short of the standards required. 5. Although failure to comply with regulations and guidelines might well evidence a fall from appropriate standards, professional standards in the health professions are not to be measured merely by compliance. The ultimate benchmark against which the professional conduct of health practitioners will be measured is the protection of the public. If the relevant conduct of a health professional fails to protect the public, and falls significantly short of the standards required to do so, or poses a real risk to the health and safety of the public, it might well justify suspension or deregistration because the community ought not be exposed to the risk inherent in such failures. Whether such a step is taken as a consequence will depend on the circumstances. That is the next issue we will consider. 6. The first question to be answered is whether Mr Elliott's proven conduct would justify taking that step. In our view, it does. Of particular concern is that in respect of a significant number of patients, over a considerable period of time, Mr Elliott's professional and clinical judgment fell short time and time again. He appears to have been far too readily willing to suspend his own judgment and to subordinate it to that of prescribing doctors whom he never challenged in any serious way. (In reaching that conclusion we accept Mr Elliott's claim that he did, or attempted to, query Dr Brunner about a number of prescriptions he had issued.) An isolated instance, or a small number of events, taken by themselves could be attributed to the difficulties that undoubtedly arise in assessing patients who may be attempting to manipulate the system. In respect of at least some of the patients, Mr Elliott dispensed Sch 8 drugs on numerous occasions, in Patient C's case 57 times over a period of about 22 months. Yet he took no effective action to protect these patients, who were at high risk of opioid-dependency, from the risks of using those drugs. We find that the subject conduct, considered as a whole, was of a sufficiently serious nature to justify suspension or cancellation of Mr Elliott's registration. What protective orders should be made? 1. The parties agree that Mr Elliott should be reprimanded and that an order for suspension or cancellation of his registration is not appropriate. The issue in dispute is whether conditions should be imposed on Mr Elliott's registration. The Commission urges the Tribunal to impose three conditions, namely that Mr Elliott submit to an audit of his practice, accept a mentor and complete an online prescription drug misuse course offered by the Royal Australian College of Physicians. Mr Elliott submits that the imposition of conditions is neither necessary nor appropriate but undertakes to comply with any conditions imposed by the Tribunal. Statutory framework and principles that govern the making of protective orders 1. 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. As noted above, if satisfied that the practitioner has been found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration: s 149C(1) of the National Law. 2. 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]. 3. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA at [20] stated that the task of the decision-maker in making protective orders centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. Submissions made by the parties 1. Mr Elliott argues that the conditions proposed by the Commission are unnecessary to protect the public, pointing to the following factors. 2. First, his insight and remorse, which he contends he has consistently demonstrated since the offending conduct was uncovered by the PSU in late 2014. Mr Elliott points to his full cooperation at all times with the investigations undertaken by the PSU, the Council and the Commission and the reviews conducted by Mr Mahoney. In addition, he points to the unchallenged evidence given by numerous friends and colleagues, which supports his self-report that he feels a deep sense of shame and is extremely remorseful for his actions. 3. Second, the evidence of good character given by patients, staff and members of the local community. 4. Third, the steps taken by Mr Elliott to address the shortcomings in his practice evident at the time of the subject conduct. These include engaging Mr Mahoney, a pharmacist with 40 years' experience to conduct a review of his practice and assess, among other things, whether he was meeting his legislative obligations in dispensing restricted substances (Sch 4) and drugs of addiction (Sch 8). In a report dated 27 October 2015, Mr Mahoney wrote that having reviewed Mr Elliott's professional practice, he saw no evidence of any deficiency in his professional knowledge, skill and practice and in his opinion there was no longer a need for conditions to be imposed on Mr Elliott's registration to protect the public. In addition, he wrote that he had identified no issues of concern during an (unannounced) audit of the Sch 8 drugs held by the Pharmacy. Shortly before the hearing, Mr Mahoney returned to the Tuncurry Pharmacy to conduct a further review. In a report dated 3 November 2017, he wrote that after reviewing the procedures in place at the pharmacy for dispensing prescription medication, questioning Mr Elliott on the requirements governing prescription medication, especially those relating to Sch 4 and Sch 8 drugs and conducting a Sch 8 drug audit, he concluded there was no evidence of issues of concern. He repeated the view expressed in his original report that he was satisfied that Mr Elliott now had a sound understanding of the legislative requirements and professional responsibilities of pharmacists when dispensing prescription medication, and Sch 8 medication in particular, and saw no evidence of any deficiency in Mr Elliott's professional knowledge, skill and practice. In a report prepared the following day, Mr Mahoney recorded that Mr Elliott appears to have matured over the past two years. He wrote that he was impressed by the changes introduced in the practice, which included an alert system for patients with a history of possible drug abuse and better exchange of information about this group of patients with other pharmacists working in the local area. 5. In a statement dated 30 October 2017, Mr Elliott detailed the steps he had taken over the past four years to ensure that the subject conduct is not repeated. These include: reflecting on his practice with his father and brother, who are both experienced pharmacists; engaging in informal mentoring with long-time friend and experienced pharmacist, Ian Byrne; taking more time to familiarise himself with the dispensing history of individual patients; seeking the opinion of a peer if in any doubt about the appropriateness of a requested supply; contacting the PSU for guidance, where necessary; recording the steps taken in the pharmacy's dispensing system when concerns were raised about a particular patient; undertaking further professional development, and familiarising himself with the legislative requirements and guidelines for dispensing prescription medication, including drugs of addiction. 6. The Commission argues that the conditions it proposes are necessary and proportionate for the following reasons. First, it contends a reprimand is unlikely to serve as a sufficient deterrent to other members of the profession. Second, while not questioning Mr Mahoney's integrity or experience, the Commission points out that the reports he prepared of his reviews of the practice were extremely brief. Third, a formal mentoring arrangement of the type it proposes is likely to be of greater benefit than the informal mentoring arrangement with Mr Byrne. Consideration 1. Given the passage of time and the remedial steps taken by Mr Elliott, we agree with the parties that no useful purpose would now be served in suspending or cancelling Mr Elliott's registration, notwithstanding the seriousness of the subject conduct. 2. Nor do we consider it necessary or appropriate to require that Mr Elliott be subjected to the proposed mentor or further education conditions. With respect to the latter, we note that Mr Elliott is soon to complete "Ethics and Dispensing in Pharmacy Practice", a course offered by the Pharmaceutical Society of Australia and has undertaken to complete the course by mid-2018. In addition, he has been diligent in his efforts to educate himself about the responsibilities and legislative requirements governing the dispensing of Sch 4 and Sch 8 drugs. Further, there is some uncertainty about whether pharmacists are eligible to enrol in the course offered by the Royal Australian College of Physicians, proposed by the Commission. 3. With respect to the proposed mentoring condition, over the past three years Mr Elliott has made conscientious efforts to improve his practice and has demonstrated his willingness to seek guidance and support from experienced practitioners. Therefore, in our view, no useful purpose would be served in requiring Mr Elliott to submit to a mentoring arrangement of the type proposed by the Commission. 4. The more difficult question is whether the proposed audit condition ought to be imposed. The following factors weigh against the imposition of an audit condition. First, the evidence of Mr Elliott's conscientious efforts to address the shortcomings in his practice. Second the evidence of his full compliance with the conditions imposed by the Council. Third, the absence of any further complaint or allegation about Mr Elliott. Fourth, Mr Mahoney's evaluation that on the occasions he reviewed the practice no issues of concern were evident. Fifth, the favourable opinion about Mr Elliott's knowledge, skill and practice as a pharmacist expressed by a number of health practitioners, including a number who had the opportunity to observe and interact with Mr Elliott in a professional capacity over the past three years. These include now retired Diane Robertson who commenced at the Tuncurry Pharmacy on a part-time basis in early 2015, initially as pharmacist-in-charge until she retired in January 2017. She wrote that she had the opportunity to work closely with and observe Mr Elliott throughout this period and found him to be ethical in his approach and careful in the supply of Sch 4 and Sch 8 medication. She wrote that in her 50 year career as a pharmacist she has observed both "good and bad" of the profession and could "not fault Mr Elliott's professionalism". 5. Weighing in favour of the imposition of an audit condition is the public interest in implementing an independent and transparent mechanism to monitor the practice and reduce any risk that the subject conduct might be repeated; the public interest considerations of general deterrence and the maintenance of public confidence in the profession (see, for example Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]), and the fact that the review conducted by Mr Mahoney was conducted over a relatively short period and the reports of his findings were not especially detailed. 6. While the considerations are finely balanced, we have decided that an audit condition is not necessary to protect the health and safety of the public. Not only has Mr Elliott's practice been formally reviewed by Mr Mahoney, an experienced and respected practitioner, but Ms Robertson, also a very experienced practitioner, has had a first-hand opportunity to observe Mr Elliott over an extended period and saw no evidence of shortcomings in his practice or evidence that with the passage of time he has reverted to the poor practices which led to the subject conduct. While a function of protective orders, it does not necessarily follow that a protective order must be made to achieve a deterrent effect, especially in circumstances where the proposed order lacks any apparent utility. 7. For these reasons, we have decided to issue a reprimand and make no other protective orders. Should Mr Elliott be required to pay all of the Commission's costs? 1. It is agreed that Mr Elliott should pay the Commission's costs. The issue in dispute is whether there has been any disentitling conduct by the Commission and, if so, whether Mr Elliott should be ordered to pay only some of the Commission's costs. The Commission contends that Mr Elliott should pay all of its costs. Mr Elliott contends that he should pay only 30 per cent of the Commission's costs. 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 Philipiah at [42] the Court of Appeal outlined a number of factors that may justify departure from the general rule. They include a failure by the Commission to prove alleged professional misconduct, a failure to establish all relevant particulars of alleged misconduct, or oppressive conduct on the part of the Commission, such as taking unnecessary procedural steps. This is not an exhaustive list of matters that might be taken into account in varying the usual order. Costs orders are compensatory, not punitive. 4. The underlying principle in relation to costs is that of justice and fairness. A court or tribunal will make an assessment of, and take into account, each party's responsibility for the costs incurred. In Commonwealth v Gretton [2008] NSWCA 117, Hodgson JA said at [121]: In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled: cf Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ. Departures from the general rule that costs follow the event are broadly based on a similar approach. 1. The Commission contends that there has been no disentitling conduct on its part and that it is therefore entitled to an order for its costs on the usual basis. 2. On the other hand, Mr Elliott submits that the history of the Commission's carriage of the Complaint militates against an order requiring him to pay all of the Commission's costs. In support he points to the history of proceedings, set out in the chronology contained in his final submissions. In summary, the chronology outlines the progress of the Commission's investigation over the period spanning February 2015 to 5 December 2017. It reveals that while the initiating Application, containing the original complaint, was served on 26 June 2017 it was not until 28 November 2017, five working days before the commencement of the hearing, that he was notified of the Commission's decision to withdraw 21 particulars (the Amended Complaint), and it was not until the morning of the hearing that he received the final version of the Complaint (the Further Amended Complaint) and learned of that Commission had decided to seek leave to withdraw a further five particulars and four complaints in their entirety. Mr Elliott points out that, after receiving the original complaint, he repeatedly requested further and better particulars, which were only received shortly before the hearing and then only after a direction had been issued by the Tribunal. 3. Mr Elliott points out that the Commission was placed on notice as early as February 2016 that some aspects of its case, especially the question of whether pharmacists are expected, as Mr Leigh asserted, to consult the PSU to ascertain whether a patient was listed on the PHDAS, were problematic and inappropriate. Both Mr Mahoney and Mr Regoli contested this assertion. In addition, he points to the results of his own enquires which he provided to the Commission, which contradicted Mr Leigh's assertion. Despite this material being provided to the Commission in the early stages of the investigation, the Commission continued to rely on that aspect of Mr Leigh's evidence. It is submitted that the Commission ought to have withdrawn the particulars relating to that aspect of the Complaint at a much earlier stage then it did. It did not and Mr Elliott submits that as a result he was put to significant expense in meeting the Commission on this issue. 4. It is also asserted by Mr Elliott that he was fully co-operative with the Commission at every stage, complied with all directions of the Tribunal and made a genuine effort to narrow the issues in dispute. 5. The Commission submits that if, as occurred, the complaint of professional misconduct is made out, the position on costs changes radically. The Commission contends that this was the primary contest between the parties, and a large part of the hearing was devoted to this question. While acknowledging that it made significant amendments to the Complaint late in the day and conceding that a mild reduction of costs might be warranted in those circumstances, it points out that Mr Elliott was also tardy in responding to the Complaint and did not formally admit unsatisfactory professional conduct until after he received Mr Rigoli's final report in October 2017. Consideration 1. In our view, it is appropriate to depart from the usual order that costs follow the event for the following reasons. First, as the history of the Complaint demonstrates, by the time of the hearing the Commission's case had changed significantly from the initial Complaint which related to 15 patients. That the case was narrowed appears to have been brought about largely due to the efforts of Mr Elliott. It would appear therefore that some of the costs incurred by the Commission were ultimately unnecessary. It would be unfair for Mr Elliott to have to bear them given as revealed by the chronology prepared by Mr Elliott, the Commission was on notice from an early stage of its investigation of the paucity of evidence relied upon to support some of the allegations. Second, Mr Elliott was put to the expense of meeting an issue that was ultimately not contested, namely the aspect of Mr Leigh's evidence concerning consultation with the PSU. In our view, the costs order we make should take that into account and be discounted accordingly. 2. It is virtually impossible in the circumstances to disentangle the various costs incurred by each party and, in any event, it is not for the Tribunal to engage in the detail of costs assessment. We have concluded that, taking the case as a whole, and bearing in mind that the Commission has been successful in proving professional misconduct, that it would be appropriate to make an order that Mr Elliott pay 60 per cent of the Commission's costs, as agreed or assessed. Orders 1. We make the following orders: 1. Mr Elliott is reprimanded. 2. Mr Elliott is to pay 60% of the costs of the Health Care Complaints Commission, as agreed or assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ANNEXURE A Amended Complaint The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Steven Elliott ("the practitioner") of […] being a pharmacist registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. BACKGROUND TO COMPLAINT ONE The practitioner was first registered in 2001. In mid-2014 the Pharmaceutical Regulatory Unit of the New South Wales Ministry of Health ("PRU") attended Tuncurry Pharmacy ("the Pharmacy") in relation to an investigation concerning high rates of dispensing Durogesic to patients with a past or present history of treatment on the Opioid Treatment Program. At all relevant times the practitioner was the principal pharmacist at the Pharmacy. PARTICULARS OF COMPLAINT ONE On 13 June 2014 the practitioner dispensed Durogesic for Patient A in the quantity as set out in Schedule A: in a dosage in excess of the recognised therapeutic dose, contrary to clause 109 of the Poisons and Therapeutic Goods Regulation 2008 ("PTGR"); in circumstances where he ought to have been aware that Patient A may have had a drug dependency; COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 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 TWO The background to Complaint One is repeated. On 20 June 2013 the practitioner documented the following incident in relation to Patient B: "[Patient B] showed with Durogesic 100. Contacted Medical Practitioner A. Confirmed pain plan". The practitioner had documented "keep an eye on them" prior to dispensing on that day. On 27 June 2013, the practitioner made a further note about Patient B being prescribed Oxycodone 80mg and documented "rang Medical Practitioner A ok'd it…assured part of pain plan". PARTICULARS TO COMPLAINT TWO The practitioner dispensed Durogesic for Patient B on the dates and in the quantities as set out in Schedule B: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient B may have had a drug dependency given the drug and dosage. without retaining or recording any explanatory information provided by Medical Practitioner A regarding the reason for the prescription; in an inappropriate combination with oxycodone. The practitioner dispensed Oxycodone for Patient B on the dates and in the quantities as set out in Schedule B: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient B may have had a drug dependency; in an inappropriate combination with Durogesic. COMPLAINT THREE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 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 THREE The background for Complaint One is repeated. PARTICULARS TO COMPLAINT THREE The practitioner dispensed Oxycodone for Patient C on the dates and in the quantities as set out in Schedule C: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient C may have had a drug dependency. in an inappropriate combination with: buprenorphine; diazepam; quetiapine. The practitioner dispensed Buprenorphine for Patient C on the dates and in the quantities as set out in Schedule C: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient C may have had a drug dependency; in an inappropriate combination with: oxycodone; diazepam; quetiapine. COMPLAINT FOUR is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 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 FOUR The background for Complaint One is repeated. PARTICULARS TO COMPLAINT FOUR The practitioner dispensed Durogesic for Patient D on the dates and in the quantities as set out in Schedule D: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient D may have had a drug dependency; in an inappropriate combination with oxycodone. The practitioner dispensed Oxycodone for Patient D on the dates and in the quantities as set out in Schedule D: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient D may have had a drug dependency. in an inappropriate combination with Durogesic. COMPLAINT FIVE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 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 FIVE The background for Complaint One is repeated. PARTICULARS OF COMPLAINT FIVE The practitioner dispensed Durogesic for Patient E on the dates and in the quantities as set out in Schedule E: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient E may have had a drug dependency; in an inappropriate combination with: Oxycodone; Kalma; Diazepam; Xanax. The practitioner dispensed Oxycodone for Patient E on the dates and in the quantities as set out in Schedule E: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient E may have had a drug dependency; in in an inappropriate combination with: Durogesic; Kalma; Diazepam; Xanax. COMPLAINT SIX is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 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 SIX The background for Complaint One is repeated. PARTICULARS OF COMPLAINT SIX The practitioner dispensed Durogesic for Patient F on the dates and in the quantities as set out in Schedule F: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient F may have had a drug dependency; The practitioner dispensed Morphine for Patient F on the dates and in the quantities as set out in Schedule F: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient F may have had a drug dependency; On 27 February 2013 the practitioner dispensed 14 days' supply of MS Contin (100mg x 28) for Patient F in circumstances where: Patient F would still have had approximately 8 days' supply of MS Contin having been dispensed (100mg X 28) on 21 February 2013 by the practitioner; the practitioner ought to have been aware that the medication was likely to be abused or misused as the drug is a Schedule 8 drug of addiction commonly known to be the subject of abuse or dependence and illegally on-sold for use and abuse; Patient F had attended the Pharmacy in an intoxicated state earlier on 27 February 2013, prior to the practitioner dispensing the MS Contin; the medication was provided to a person other than Patient F, namely, Patient F's female friend, in respect of whom the practitioner did not make appropriate attempts to satisfy himself that she was an appropriate person to receive the medication on Patient F's behalf. COMPLAINT SEVEN is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 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 SEVEN The background to Complaint One is repeated. PARTICULARS TO COMPLAINT SEVEN The practitioner dispensed Durogesic for Patient G on the dates and in the quantities as set out in Schedule G: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient G may have had a drug dependency; in an inappropriate combination with Oxycodone. The practitioner dispensed Oxycodone for Patient G on the dates and in the quantities as set out in Schedule G: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient G may have had a drug dependency; in an inappropriate combination with Durogesic. COMPLAINT EIGHT is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 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 EIGHT The background to Complaint One is repeated. PARTICULARS TO COMPLAINT EIGHT The practitioner dispensed Durogesic for Patient H on the dates and in the quantities as set out in Schedule H: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient H may have had a drug dependency; in an inappropriate combination with Oxycodone. The practitioner dispensed Oxycodone for Patient H on the dates and in the quantities as set out in Schedule H: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient H may have had a drug dependency; in an inappropriate combination with Durogesic. COMPLAINT TEN is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. BACKGROUND TO COMPLAINT TEN The background to Complaint Ten is repeated. PARTICULARS TO COMPLAINT TEN The practitioner dispensed Durogesic for Patient J between 16 August 2013 and 16 September 2013 in the quantities as set out in Schedule J: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient J may have had a drug dependency; COMPLAINT ELEVEN is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. BACKGROUND TO COMPLAINT ELEVEN The background to Complaint One is repeated. PARTICULARS TO COMPLAINT ELEVEN The practitioner dispensed Durogesic for Patient K on the dates and in the quantities as set out in Schedule K: in a dosage in excess of the recognised therapeutic dose contrary to clause 109 of the PTGR; for a purpose that does not accord with recognised therapeutic standards of what is appropriate contrary to clause 109 of the PTGR; in circumstances where he ought to have been aware that Patient K may have had a drug dependency; COMPLAINT FIFTEEN is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 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 FIFTEEN The background for Complaint One is repeated. PARTICULARS OF COMPLAINT FIFTEEN The following particulars are relied upon individually: Complaint 2 particulars 1 and 2; Complaint 3 particulars 1 and 2; Complaint 4 particulars 1 and 2; Complaint 5 particulars 1 and 2; Complaint 6 particulars 1, 2 and 3; Complaint 7 particulars 1 and 2; Complaint 8 particulars 1 and 2; Complaint 9 particular 1; Complaint 10 particular 1; Complaint 11 particular 1; Complaint 12 particular 1; Complaint 13 particular 1; Complaint 14 particular 1. ********** 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 - Tribunal member name corrected. 04 April 2018 - Typographical error corrected in Annexure A. 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: 04 April 2018