Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sadek (No 2) [2018] NSWCATOD 90 Hearing dates: 23 May 2018 Date of orders: 12 June 2018 Decision date: 12 June 2018 Jurisdiction: Occupational Division Before: J Millbank, Senior Member K Carter, Senior Member M Cross, Senior Member J Griffin, General Member Decision: (1) Mr Sadek is reprimanded; (2) Cancellation of the practitioner's registration as a pharmacist under s 149C(1)(b) of the National Law effective 30 days from the date of this order; (3) The practitioner may not apply for review of the order for 2 years from the date of the order coming into effect per s 149C(7); (4) Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: Pharmacy – professional misconduct – multiple improprieties in recording and dispensing of Schedule 8 medications – dispensing very large quantities of high strength OxyContin in inappropriate circumstances – appropriate protective orders Legislation Cited: Health Practitioner Regulation National Law NSW 2009 (NSW) ('The National Law') ss 3A; 149C(1)(b); 149C(7); cl 13(1) of Sch 5D Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Gad v Health Care Complaints Commission [2002] NSWCA 111 Health Care Complaints Commission v Ahmad ]2015] NSWCATOD 103 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Echano [2018] NSWCATOD 30 Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 Health Care Complaints Commission v Gallard [2017] NSWCATOD 169 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Ngo [2015] NSWCATOD 143 Health Care Complaints Commission v Nguyen [2014] NSWCATOD 123 Health Care Complaints Commission v Sadek [2017] NSWCATOD 181 Lee v Health Care Complaints Commission [2012] NSWCA 80 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Texts Cited: Australian Institute of Health and Welfare, Non-Medical Use of Pharmaceuticals (2017) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Anthony Sadek (Respondent) Representation: Counsel: Ms Tronson (Applicant) Mr Downing (Respondent) Solicitors: HCCC (Applicant) Meridian (Respondent) File Number(s): 2017/119854 Publication restriction: A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting disclosure or publication of the names of the patients and medical practitioners in the schedule to the complaint, and any other patients named in evidence. Reasons for decision Background 1. Mr Sadek is a registered Pharmacist. Mr Sadek was found liable for professional misconduct by reason of his actions in dispensing very large quantities of high strength OxyContin in highly irregular and inappropriate circumstances in multiple instances from 2012 to 2014 in HCCC v Sadek [2017] NSWCATOD 181. The facts are laid out in detail in that decision and will not be repeated here. 2. This is the Stage 2 determination regarding the appropriate orders. Relevant Law 1. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: HCCC v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law. 2. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: HCCC v Do [2014] NSWCA 307 [35]. 3. Having made a finding of professional misconduct, the powers available to the Tribunal include the power to suspend or cancel the registration of the practitioner: s149C(1)(b). 4. There is no requirement under the National Law that there must be a finding of 'probable permanent unfitness' to practise of a health practitioner in order to justify cancellation of registration: Chen v HCCC [2017] NSWCA 186 at [56]-[76]. 5. Whether the gravity of the misconduct is such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v HCCC [2001] NSWCA 411 at [82]. 6. The predominant consideration is the protection of the public. Protective orders must be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v HCCC [2012] NSWCA 80 at [34]; HCCC v Ngo [2015] NSWCATOD 143 at [126]. In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v HCCC [2002] NSWCA 111 at [55]. 7. While the Tribunal has a discretion to make a costs order in respect to proceedings before it, that discretion is not unfettered and is to be guided by the relevant legal principles. Costs are for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise: Qasim v HCCC [2015] NSWCA 282 [85]. The Hearing and Evidence 1. Mr Sadek provided a brief written statement dated 13 April 2018. In that statement Mr Sadek noted that since reviewing the Stage 1 decision he had enrolled in the 'Ethics and Dispensing and Pharmacy Practice' online course run by the Pharmaceutical Society of Australia (PSA). He had completed 2 of 4 modules on the same day that he enrolled in January 2018. He intends to complete the other two modules 'over the next few months'. 2. At the Stage 2 hearing Mr Sadek gave oral evidence. Under cross-examination he stated that the first unit of the PSA course was completed via three multiple choice quizzes which he had undertaken a number of times while simultaneously undertaking the required reading. The second exercise required a brief model S8 drug book exercise. The third and fourth modules of the course require more in-depth reading and assessment work. He had not completed the latter modules because they were time consuming, however he intended to do so before the six month expiry period imposed by the course. 3. Mr Sadek was unable to recall how much reading there was in the PSA course or what he had learnt from the first two units of the course, but was able to recollect and reflect upon some of the scenarios and issues raised by the latter parts of the course that he had not yet completed. Mr Sadek stated that he had gained insight from the course that pharmacists are caretakers of medication and the legislative requirements must be met. 4. While Mr Sadek stated that he was 'looking into' further PSA courses he had not enrolled in any, nor had he undertaken any face-to-face professional development or engagement activities. His interaction with other pharmacists was limited to colleagues with whom he works. 5. Mr Sadek informed the Tribunal that he was no longer the pharmacist in charge at his pharmacy as he had appointed someone else to undertake that role. He continued to work at the pharmacy as a pharmacist 50 hours per week, subject to the current s 150 conditions. 6. The Tribunal had regard to two character references which formed part of the evidence at Stage 1. One was a personal reference from a doctor who had treated Mr Sadek's son, dated 15 August 2014, which described Mr Sadek as caring and responsible. It was not clear from the reference whether the author had knowledge of the complaints. The second was a professional reference from Dr Aboud, dated 1 September 2017, which referenced viewing 'the letter' of allegation faced by Mr Sadek. Dr Aboud treated a number of patients on a methadone treatment program into which Mr Sadek dispensed over a number of years. Dr Aboud expressed the view that the allegations were not typical of Mr Sadek's professional behaviour, and stated that he had never experienced 'any inappropriate medications dispensing behaviour' in his dealings with Mr Sadek. Submissions 1. The HCCC sought an order cancelling Mr Sadek's registration with effect one month from the date of the Tribunal's orders, an order that Mr Sadek not be permitted to seek a review of the cancellation order for a period of 12 to 24 months, a reprimand, and its costs. 2. The HCCC submitted that Mr Sadek's conduct represents multiple extremely significant departures from the proper legal and ethical standards applicable to a registered pharmacist. These departures occurred over a significant period, during which Mr Sadek made no relevant report to any appropriate body, and to the contrary stored evidence which he hoped would exculpate him if his conduct should ever come to light. 3. The HCCC drew attention to the Stage 1 findings that: * Mr Sadek was responsible for the dispensing of very large quantities of high strength OxyContin over a prolonged period in circumstances in which he had actual or constructive knowledge that the drugs were very likely being misused; * his evidence demonstrated at best a wilful disregard of his professional obligations; * more than mere incompetence was involved and Mr Sadek's conduct was improper and unethical; and * Mr Sadek was prepared to tailor and falsify his evidence under oath. 1. Ms Tronson submitted that the first three of these findings are directly relevant to an assessment of the severity of the conduct and, so, to the appropriate orders. The fourth finding is relevant to the appropriate orders because it informs the assessment of the extent to which Mr Sadek has, to date, taken responsibility for his conduct - that is, the extent to which he has shown insight and remorse. Together, the severity of the conduct and lack of insight and remorse point to cancellation of registration as the only appropriate outcome in this case. 2. While the practitioner did submit a professional character reference in Stage 1 that reference should not be given the same weight as a reference made in light of the Stage 1 findings and reasons. 3. The illegal trade in prescription opioids presents a grave threat to the safety of the public. Mr Sadek's conduct evinced at least a reckless disregard of his professional obligations and it is open to the Tribunal to find that Mr Sadek acted wilfully or deliberately in contravention of those obligations. On either basis, Mr Sadek's approach to his professional obligations rises to such a level of contumeliousness that the Tribunal cannot have any comfort that he would act any differently in similar circumstances. The severity of the misconduct warrants orders sending a strong message of denunciation. 4. The well-known nature of the threat to public health posed by the diversion and misuse of prescription pharmaceuticals, including poisoning, overdose and death, is evidenced by a number of press articles filed by the Commission. The seriousness of this threat was also recognised in the recent Tribunal decision of HCCC v Echano [2018] NSWCATOD 30 (involving improper prescribing by a doctor). 5. General deterrence and denunciation are particularly important in this case given the risk to the community posed by the inappropriate dispensing of opioid medication and the potential misuse and abuse of such drugs. That is especially so in circumstances where Mr Sadek claimed to be unaware of his obligations. 6. The HCCC submitted that, while the Tribunal is not bound by its own previous decisions, it is appropriate to seek broad consistency of outcomes with cases involving similar circumstances. The HCCC submitted that HCCC v Ahmad [2015] NSWCATOD 103 (Ahmad); HCCC v Fearon [2018] NSWCATOD 26 (Fearon) and HCCC v Nguyen [2014] NSWCATOD 123 (Nguyen) were comparable cases. 7. In Ahmad, the pharmacist had misappropriated drugs, including Schedule 8 drugs, for unlawful supply and given untruthful evidence to the Tribunal; the Tribunal held that he posed a considerable risk to the public and lacked any appreciation of that risk. In Fearon, a pharmacist supplied restricted substances, mostly anabolic steroids, and drugs of addiction without prescription over an extended period, and was not candid with the Tribunal. In Nguyen the pharmacist supplied pseudoephedrine-based medications in inappropriate circumstances and large quantities of anabolic steroids without prescription. In all three matters the practitioner's registration was cancelled, with an order that he not be permitted to apply for review for a period of between 12 months (Fearon) and two years (Ahmad and Nguyen). 8. The HCCC sought to distinguish the recent case of HCCC v Elliott [2018] NSWCATOD 47, in which a reprimand was issued to a pharmacist who was found liable for professional misconduct due to repeatedly dispensing S8 medications to a number of patients with inappropriately short intervals and drug combinations, thereby exceeding therapeutic ranges. Ms Tronson noted that the case involved fulsome admissions and a failure of competence rather than unethical conduct or any form of moral turpitude on the part of the practitioner. 9. In the HCCC's submission cancellation of registration serves the twofold purpose of ensuring that there is a further opportunity for the Tribunal to assess whether the practitioner has effectively changed such that he no longer poses a specific risk to the public, and through enacting the broader protective jurisdiction of the Tribunal with a strong message of denunciation of the relevant conduct to the profession. 10. The respondent contended that as the Stage 1 decision had specified that Complaint 3 individually amounted to professional misconduct but had not specified which of the matters particularised in Complaints 1, 2, and 4-7 amounted to misconduct, the decision should be read such that the finding of misconduct in Complaint 8 rested only upon the facts particularised in Complaint 3. 11. Counsel for the respondent contended that a suspension of 6-9 months followed by conditions that the practitioner not possess, handle, supply, or dispense Schedule 8 drugs was the appropriate order in the circumstances of the case. 12. Mr Downing submitted that any risk posed by the practitioner to the public could be adequately addressed by conditions restricting him from dealing with S8 drugs. In support of this position the respondent drew attention to the following facts: * Mr Sadek has been registered as a pharmacist since 1989 and not been the subject of any previous disciplinary complaints or adverse findings; * since the imposition of conditions under s 150 the practitioner has complied with those conditions; * the findings of misconduct in this matter do not suggest shortcomings in the respondent's practice as a pharmacist more broadly, nor that he improperly handled and dispensed OxyContin on every occasion; and * Mr Sadek's dispensing of methadone had been twice audited in 2014 and found to be compliant. 1. The respondent submitted that the cases of Ahmad, Nguyen and Fearon should be distinguished as being more serious matters. This was on the basis that Mr Sadek had not falsified dispensing records, created false identities or misappropriated drugs for unlawful supply as had Mr Ahmad, nor dispensed restricted substances without prescription as Mr Fearon had done. Mr Downing argued that there was a qualitative difference between the present matter and those of Ahmad and Fearon. Unlike those cases, Mr Downing contended that Mr Sadek did not have actual knowledge that the drugs in question were being misused and had not exhibited dishonesty in the course of the relevant conduct. 2. This case should be regarded as falling in the 'middle ground' of the range of misconduct cases cited above concerning pharmacists, rendering an order of suspension of registration the appropriate and proportionate outcome. 3. In reply Ms Tronson for the HCCC contended that Mr Sadek's conduct had been found to have involved moral turpitude in the course of his practise of pharmacy. Further she argued that an order of suspension is only appropriate where there are reasonable grounds for the Tribunal to believe that the practitioner's conduct will be remedied, and any risk they pose remediated, within a finite period, without any need for further assessment by the Tribunal. Findings and Reasons 1. While Counsel for the respondent is correct to note that the Stage 1 decision does not state as distinctly as it ought to in the text of the reasons that the matters in Complaint 1, 2, and 4-7 amount to professional misconduct, the practitioner was nonetheless thoroughly on notice that the finding of professional misconduct in Complaint 8 was founded on more than just the matters proved in Complaint 3. It is apparent from the totality of the Stage 1 decision that the matters in Complaints 1, 2, and 4-7 taken together were found to amount to professional misconduct. 2. The cover sheet of the Stage 1 decision states as the second numbered finding 'Complaint 3 alone and the other complaints cumulatively, amount to professional misconduct' (emphasis added). While the cover sheet does not formally comprise part of the reasons for a decision, the NCAT cover sheet is authored by the Tribunal as constituted, and could reasonably be said to put a party on notice concerning the approach which it will take in a matter which has not yet been finally determined. 3. Within the decision itself there are also clear indications that the professional misconduct finding rests upon all of the proved matters judged cumulatively (or 'considered together' in the language of the statute). In para 15 of the Stage 1 decision the Tribunal recites the standard of professional misconduct from HCCC v BXD (No 1) [2015] NSWCATOD 134 quoting Pillai v Messiter (No 2) (1989) 16 NSWLR 197 as a level of seriousness that requires more than 'mere incompetence' and includes a deliberate departure from accepted standards, indifference to them, or serious negligence. The text of para 110 of the Stage 1 reasons, under a heading titled 'Professional Misconduct', refers to 'the other complaints' when making a finding of Mr Sadek's 'wilful disregard of his professional obligations'. Using the language of the cited jurisprudence on professional misconduct, the Stage 1 decision then states that 'more than mere incompetence was involved and that Mr Sadek's conduct was improper and unethical.' 4. The finding of professional misconduct in Complaint 8 was made by reference to the seriousness of Mr Sadek's conduct over a prolonged period in dispensing high strength OxyContin on the basis of dubious, incomplete or invalid scripts in inappropriate circumstances, not alerting authorities about these scripts, and providing tailored and uncandid evidence about these matters. These factors were present in Complaints 1, 4, 5, 6 and 7, all of which concern the inappropriate dispensing of S8, primarily high strength OxyContin. (Complaint 2 is linked in that it concerns the failure to properly record and account for S8 drugs, principally OxyContin, during the same period). There is no suggestion in the text of the Stage 1 decision that these complaints were judged as less serious in nature. To the contrary, the Stage 1 decision addresses the issue of gravity in determining misconduct by reference to Mr Sadek's pattern of conduct concerning OxyContin. 5. For the avoidance of any doubt the Tribunal clarified at the commencement of the Stage 2 hearing that the finding of professional misconduct in Complaint 8 rests upon all of the proved matters. The Tribunal invited further written submission from the parties to address any procedural fairness implications. None were received. 6. The misconduct in this matter is extremely serious in nature; it was also repeated and prolonged. The gravity of the determination of professional misconduct rests upon both the serious nature of the conduct and the duration and repetition of the conduct. 7. Mr Sadek dispensed huge quantities of high strength OxyContin over a 14 month period without exercising the appropriate professional judgement to ensure that it was being taken by actual patients in clinically indicated and supervised circumstances. The possibility of misuse of this kind of drug is very significant, and the likelihood of misuse of the drugs that Mr Sadek was dispensing increased exponentially over time: in particular when he dispensed increasing quantities of high strength OxyContin into the hands of a single individual on the basis of handwritten private scripts, many of which were defaced or altered, issued in the name of a single Doctor. There were also numerous other proved instances of inappropriate dispensing of Sch 8 medications, principally OxyContin, on incomplete, altered or suspicious scripts during the same time period. Throughout, Mr Sadek did not report suspicious scripts or doctors to the relevant authorities. 8. The Tribunal found at Stage 1 that Mr Sadek had actual or constructive knowledge of the likely misuse of the drugs which he dispensed over a long period. 9. In addition, the Tribunal found the Mr Sadek's conduct in burning and keeping a copy of CCTV footage of an interaction between himself and Dr BW from October 2012 demonstrated Mr Sadek's consciousness of wrongdoing in filling OxyContin scripts in the name of Dr BW in the circumstances noted. 10. The Tribunal concluded in the Stage 1 decision that from October 2012 onwards Mr Sadek was 'conscious' and 'well aware' that the scripts and/or prescribing practices of Dr BW were not legitimate: [80], [85]. Yet Mr Sadek continued to fill such scripts, in high volume, for another 17 months until prevented from doing so by the PSU in March 2014. In all over 600 such scripts were filled by Mr Sadek's pharmacy, most by Mr Sadek personally, and over 143,000 OxyContin 80mg tablets were dispensed on them. Other proved complaints concerning the inappropriate dispensing of high strength OxyContin also occurred throughout this period. 11. These drugs represent a very real threat to the health and safety of the public, a threat which Mr Sadek disregarded in gross breach of his professional obligations over a sustained period. At Stage 1 the Tribunal held that, from at least October 2012, the conduct in Complaint 3 was not the result of Mr Sadek's mere inattention to detail or misguided belief in the authenticity of scripts, as he claimed throughout, but was done with actual knowledge of impropriety. 12. The original PSU investigation into Mr Sadek was precipitated by the fact that his pharmacy was by far the highest purchaser of OxyContin 80mg in NSW in the period January to September 2013. During that time, Mr Sadek's pharmacy purchased an average of 177 packets of 28 tablets each month, which was more than double the number of the next highest purchasing pharmacy in NSW in the same period (and the second pharmacy was itself also procuring more than double the number of the third highest purchasing pharmacy). 13. The risks to the public posed by the improper supply of prescription drugs are extremely serious. In the past decade a shift has taken place in Australia such that drug induced death is far more likely to be caused by the misuse of prescription drugs than by illegal drugs. Currently the misuse of prescription opioids such as OxyContin constitutes the second highest cause of drug-related deaths in Australia. In 2013 alone the misuse of prescription opioids caused over 400 deaths in Australia, representing more than twice the number of people who died of heroin overdoses in the same period: AIHW, Non-Medical Use of Pharmaceuticals (2017), p 23. 14. In Fearon, the Tribunal noted that a cancellation of registration in that case, 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.[182] 1. While Mr Sadek expressed remorse in the course of the Stage 2 hearing we find that he nonetheless would pose an unacceptable risk to the public in terms of the repetition of inappropriate professional conduct, even if conditions were in place which prevented him from handling S8 medications. Mr Sadek did not put professional obligation, concern for patients or the public above his own pecuniary interest, even as the volume of drugs he sold rose and continued to rise over time. He sought no advice and made no report. Nor did he cease the misconduct until he was literally forced to stop by the PSU. This pattern of conduct gives the Tribunal serious misgivings as to Mr Sadek's willingness and ability to adhere to the ethical and legislative codes governing his professional activities beyond handling S8 drugs. 2. Mr Sadek is isolated in his profession and he has undertaken very limited and patently superficial attempts at professional development in the six months which have passed since the Stage 1 reasons were delivered. 3. Mr Sadek's circumstances dangerously combine a gross failure of previous compliance and professional judgement with a continuing lack of oversight; he is the proprietor and manager of the pharmacy in which he practises and has no professional associates to whom he turns for guidance or mentorship. The proved conduct was able to occur for such a long period without detection in part because Mr Sadek was the owner of his own pharmacy. The current presence of two other employed pharmacists, one of whom was an employee at the time of many of the relevant events, cannot afford reassurance in these circumstances. These circumstances mean that the imposition of conditions such as those suggested by the respondent cannot adequately protect the public. 4. In addition the gravity, repetition and prolonged nature of the misconduct mean that an order of cancellation of registration is the only appropriate outcome. 5. The public will be protected through an order of deregistration, through the strong signal that this decision sends to the pharmacy profession about the importance of their obligations in ensuring that dangerous medications are dispensed safely and with appropriate care. In particular we stress that pharmacists have a very significant role to play in ensuring the lawful and safe supply of Schedule 8 medications such as OxyContin. The professional standards at the heart of this role remain constant, but the effects of breach are even more pressing at the current time in light of the alarmingly high rates of misuse of such drugs and high mortality rates associated with such misuse in Australia. Costs 1. The HCCC was successful in its case and is entitled to costs. Orders 1. Mr Sadek is reprimanded; 2. Cancellation of the practitioner's registration as a pharmacist under s 149C(1)(b) of the National Law effective 30 days from the date of this order; 3. The practitioner may not apply for review of the order for 2 years from the date of the order coming into effect per s 149C(7); 4. Respondent to pay the Applicant's costs of these proceedings pursuant to cl 13(1) of Sch 5D of the National Law as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2018