Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Attia v Health Care Complaints Commission [2018] NSWCATOD 131 Hearing dates: 25 and 26 July 2018 Date of orders: 14 August 2018 Decision date: 14 August 2018 Jurisdiction: Occupational Division Before: The Hon F Marks Principal Member J Zwart Professional Member R Samimi Professional Member A/Prof P Macneill General Member Decision: (1) The application is dismissed (2) This order is not to be reviewed until after a period of 12 months from this date (3) The applicant is to pay the costs of the respondent assessed in default of agreement. Catchwords: Pharmacist-application for review of cancellation of registration- held applicant did not demonstrate appropriate insight, contrition or remorse – application dismissed – costs order made. Legislation Cited: Health Practitioner Regulation National Law Poisons and Therapeutic Goods Regulation Cases Cited: Health Care Complaints Commission v Attia [2016] NSWCATOD 167 Haber v Health Care Complaints Commission [2018] NSWCATOD 16. Category: Principal judgment Parties: Mina Attia (applicant) Health Care Complaints Commission (respondent) Representation: Applicant self-represented, and later by Counsel : T Flaherty (applicant) L Fernandez (respondent) Solicitors: Michael Flaherty Solicitor (applicant) Health Care Complaints Commission (respondent) File Number(s): 2018/00111564 Publication restriction: Nil reasons for decision Background and the statutory matrix 1. The applicant in these proceedings, Mina Attia was formerly registered as a pharmacist. His registration was cancelled on 23 December, 2016 by an Order of this Tribunal made on that date in Health Care Complaints Commission v Attia [2016] NSWCATOD 167 following a finding of professional misconduct. The Tribunal also made an order prohibiting the applicant from applying for a review of the cancellation of his registration within a period of 12 months. The applicant now seeks from this Tribunal a review of the cancellation of his registration. That review is made pursuant to section 163A of the Health Practitioner Regulation National Law ("the National Law") which is in the following terms; 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of— (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made— (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section— decision-making entity means the following— (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C (1) (f); (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court. relevant order, in relation to a person, means any of the following orders made by a decision-making entity— (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession. 1. In order to determine these proceedings is also necessary that we refer to sections 163B and 163C of the National Law which are in the following terms; 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following— (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order— (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division. 1. In essence, by reason of the above statutory provisions as they apply to the circumstances of the applicant, he is now entitled to seek a review of the order made to cancel his registration. We are required to conduct an enquiry into his application and we are empowered, in our discretion to make a number of orders determining the outcome of the application. Specifically, also, we are entitled to provide that any order made by us is not to be the subject of further review until after a specified time. The review which we are to conduct as part of the enquiry is to determine the appropriateness of the original order of cancellation of registration as at the date we conduct the review. Accordingly, the focus of attention is on the current circumstances of the applicant and whether or not we determine that it is appropriate that he be entitled to apply for registration to the relevant National Board. In conducting our enquiry we are precluded from reviewing the original decision to cancel his registration and we are precluded from reviewing any findings made by the Tribunal in connection with its decision to order cancellation of his registration. In essence, therefore, we take as a "given" the nature and extent of the professional misconduct of which the applicant was found to have been guilty and all findings made in connection with the determination that he was so guilty. 2. Accordingly, the starting point for our consideration is the findings made by the Tribunal in relation to its determination that the applicant was guilty of professional misconduct. The factual matrix and the findings of the Tribunal in relation to the determination that the applicant was guilty of professional misconduct 1. The narration which follows is based upon findings made by the Tribunal in determining that the applicant was guilty of professional misconduct and on additional material which was admitted into evidence in the course of these proceedings. The applicant having graduated with a Bachelor of Pharmacy from the University of Sydney in 1998 was granted provisional registration as a pharmacist in New South Wales on 7 October, 1998 and full registration on 10 October, 1999. At the time of the occurrence of the events which led up to the cancellation of the applicant's registration he owned a number of pharmacies. He also operated a pharmacy wholesale business under the trading name Hillmear Trading Pty Limited ("Hillmear"). Hillmear had a licence to wholesale pharmaceutical goods under the Poisons and Therapeutic Goods Regulation, being goods which in general terms were restricted substances and required a prescription from a medical practitioner before they could be sold to the public. One such restricted substance is Viagra, which is used to treat erectile dysfunction, and is also used in the treatment of pulmonary arterial hypertension. This latter use has application for paediatric patients. A condition of the wholesaler licence was that restricted substances could only be obtained from the holder of a licence or authority issued under a Commonwealth or State law. 2. Hillmear acquired a quantity of Viagra from a Mr Sajay Rai in March 2010. At that time the applicant had had previous dealings with Mr Rai, in supplying by way of wholesale "general products" such as confectionery and coffee and over-the-counter medication such as Panadol. He thought that Mr Rai "dealt in sort of oversupply and end lines and that type of nature." At that time the applicant was dealing with about half a dozen licensed wholesalers all of whom except for Mr Rai would send a product list from which purchases could be made. However, Mr Rai operated in a different manner. He did not send a product list, and he would call in from time to time offering product which he carried with him in a van. The applicant said that he assumed that Mr Rai was a TGA licensed wholesaler because he had offered to sell him a variety of products some of which were scheduled and some unscheduled. These included cold and flu products, Panadol, Nurofen and Nicabate. 3. In late February 2010 Mr Rai came to the applicant and offered to sell him some Viagra at a price which was less than could be obtained directly from the manufacturer, Pfizer. Mr Rai left one or two samples with him. The applicant said he did not test the samples but did check their expiry date, batch number and other details. He could not recollect seeing anything different from the normal product. The applicant did not contact Pfizer to ascertain whether the product was genuine, and did not conduct any tests himself. He purchased 55 units of Viagra from Mr Rai on 3 March, 2010 and a further 1000 units on 9 March, 2010. His purchase price was $54.27 a unit, whereas the "normal" price was between $60 and $63. Those products were on-sold to other wholesalers. 4. As it transpired, at least some of the Viagra which had been purchased from Mr Rai was counterfeit. A number of complaints had been made by customers of retail pharmacies that the product "did not work", and a pharmacist at the Sydney Children's Hospital had alerted Pfizer to the fact that these tablets were of a different consistency to the normal product when mixing them to be given to children. Pfizer immediately recalled its product and instituted an investigation, as did the TGA Regulatory Compliance Unit. Enquiries were later conducted of the applicant by the respondent. 5. When initially questioned by TGA officers, the applicant informed them that he had purchased 55 units of Viagra on 3 March, 2010 at a cost of $2985.71 and 1000 units of Viagra together with a shipment of shampoo also in early March for a total cost of $83,583.50. He produced a copy of an invoice relating to the first purchase issued in the name of Tamer Distributors Pty Limited. At the bottom of that invoice there was handwritten the name "Michael", a phone number and "cheque 1612". It was later discovered that that company did not exist, the phone number was no longer current and that the cheque 1612 had been paid into the bank account of a pharmacist employee of the applicant. At a later time the applicant told investigators that he may have paid for the first invoice in cash but had written cheque number 1612 in order to reconcile his company's books of account. His explanation given in evidence in the original proceedings before the Tribunal was that he had been untruthful in claiming that he had paid for the first purchase by cheque because he was concerned "about the transactional aspects of the deal." 6. When interviewed on 16 June 2010 the applicant told the investigators that the paperwork for the second purchase was not on his premises and undertook to forward it to them. Upon receipt of a further request for that invoice the applicant informed the TGA officers on 21 June, 2010 that payment for the first invoice had been paid into an account belonging to CD3 Investments. On 24 June, 2010 the applicant informed the TGA investigators that he had located the invoice for the second purchase which had been issued by Tamer Distributors for 1000 units of Viagra at a cost of $57,000 and for shampoo at a cost of $26,538.66, being a total cost of $83,538.66. He said he had been instructed to pay the second purchase by money transfer to a nominated Commonwealth Bank account which he understood belonged to CD3 Investments. It was later ascertained that that entity did not exist. An investigator retained by Pfizer noted that the two invoices were "completely different". The second invoice was computer-generated on A4 paper and the other was handwritten on a manual invoice. 7. There were also discrepancies concerning payments made by the applicant's company for the second invoice in the sum of $83,583.50 and an amount which had been deposited into Mr Rai's account of $85,538. The applicant was not able to offer any explanation for this discrepancy. 8. In addition to the above payments, investigators discovered that Hillmear had made a further payment to Mr Rai by bank transfer in June 2010 in the sum of $86,000. When asked why he had not disclosed this payment, the applicant replied that he had not been questioned about it. His explanation was that he had put in a further order for Viagra, but had cancelled that order when approached by TGA investigators. He said that Mr Rai had not repaid that amount. 9. In the course of its decision, the Tribunal made the following factual findings; 1. On two occasions in 2010 the applicant purchased a substance purporting to be Viagra tablets by wholesale from a person without a wholesaler licence, namely Mr Rai, in breach of a condition of his wholesale licence. So much was conceded by him for the purpose of those proceedings. 2. The Viagra was counterfeit, the applicant failed to ensure that it was genuine by contacting Pfizer to confirm the batch number and expiry date, the price offered by Mr Rai was significantly below the market rate, and this was the first occasion that Mr Rai had offered to supply a restricted substance 3. The applicant had given untruthful accounts to the investigators, particularly in describing the manner in which payment for the first delivery had been made. He had delayed informing the investigators of the identity of Mr Rai, and failed to refer to the last payment of $86,000 in June 2010 until he was confronted with Mr Rai's bank records. 4. In his evidence before the Tribunal the applicant claimed that he had not looked inside the sample boxes of Viagra left by Mr Rai. This evidence was rejected because it was inconsistent with information given by him to the respondent's investigators in February 2015 of having looked at the information leaflet and observing that the tablets were stamped. 5. In all the circumstances, the applicant should have known that the Viagra being supplied was not genuine. (It should be noted that the Tribunal specifically eschewed any finding that the applicant had actual knowledge that the product was not genuine). 6. The applicant provided false or misleading information to the TGA throughout the course of its investigation. He took 10 days to supply the TGA with the name and contact details of Mr Rai, he claimed the first payment was made by cheque and did not disclose the $86,000 bank transfer made in June 2010. 7. The invoice for the first payment was false because Tamer Distribution did not exist, no payment was made by cheque and cheque number 1612 was an incorrect number. A reference to a person named Michael and a telephone number were also incorrect. The applicant had sought to conceal "critical details and the true nature of the transaction" and thus mislead the investigators, as had been conceded by him in the course of giving evidence. 1. Based on the factual findings made and having regard to the totality of the circumstances, the Tribunal concluded that the conduct of the applicant fell significantly below the relevant standard being that of a pharmacist of an equivalent level of training or experience of the applicant. It concluded that he was guilty of professional misconduct. 2. In determining that cancellation of registration was an appropriate protective order, the Tribunal made the following observations; 1. that it was unlikely that the applicant would again deal with a supplier of pharmaceutical products unless first taking steps to satisfy himself that the supplier held the appropriate licence or authority. Furthermore, it was unlikely that in any future dealings with a supplier that the applicant would fail to make enquiries if there was some suspicion that pharmaceutical goods might be counterfeit. 2. That it was less confident that the applicant would act "with complete candour and make full disclosure in future dealings with those charged with the responsibility of overseeing the regulation of the pharmaceutical sector." The Tribunal commented that the health and safety of the public demanded that pharmacists cooperate fully with any regulatory authority and that they comply with the highly regulated environment in which they operated. 3. It was concerned by the fact that the applicant had given false information to investigators, that he had knowingly misled them and had failed to disclose information relevant to their investigations. 4. It was not confident that the applicant would act "with candour and make all necessary disclosures" in his dealings with regulatory authorities. The evidence of the applicant in these proceedings 1. The applicant tendered into evidence a lengthy affidavit. Annexed to it were a number of character references and other documents to which we shall make reference. In addition, the applicant gave oral evidence including cross-examination. Oral evidence was also given by Mr Raymond Mawad, who was required to be made available for cross examination on a character reference which he had given in favour of the applicant. 2. In his affidavit the applicant said that he had "run pharmaceutical companies for 19 years" and referred to a Shop smart Wholesale Pharmacy franchise group which he has operated since 2010 and which he continues to operate. There are currently 8 pharmacies operating within that group. He professed awareness of and proficiency in the operation of retail and wholesale pharmacies. His affidavit canvassed his early history and the circumstances in which he became a registered pharmacist and commenced to own and operate a number of pharmacy businesses together with the wholesale operation which he had established. 3. As will be seen, the applicant has become intimately involved in religious studies and the establishment of a Ministry. After discussing the successful establishment by him of his retail pharmacy operations and his expansion into wholesaling the applicant said; "Even though these events look positive from one angle, being so self-sufficient and self-centred was very negative on a personal level, as it made me think that achieving all those things had been my own doing. Mentally, I had a reliance on God, His Grace and His Blessings, but that reliance was not there in a heartfelt or practical sense….. So achieving so much at a very young age showed me that yes, there was a God that I believed in and that He was always there and always protected me, shielded me and was like a hedge around me. But the negative aspect of this was that in my mind, they were my achievements." We shall return to this aspect when considering the applicant's evidence contained in his affidavit as to the impact of his Ministry and religious involvement on his life after the occurrence of the events which led to the cancellation of his registration. 4. In the course of his affidavit evidence the applicant referred to the events which brought about the cancellation of his registration in terms that he had "inadvertently purchased and supplied" scheduled medication which was shown to be counterfeit. He also referred to these events in terms of his "mis-judgement in my wholesaling business in 2010." In due course we shall compare these descriptions of what occurred with the findings of the Tribunal. 5. The applicant described the impact of these events on his life. He said that he had "been affected by my actions to no limits. My career has been tarnished and ruined. My ministry has been forever affected." The applicant also described what occurred as "a very unfortunate incident" which had "very severe consequences on my personal and professional life. It has also taken a massive toll on my immediate family and especially the future of both of my children." In his affidavit the applicant made other references to the impact of the cancellation of his registration on his business operations, in that he voluntarily closed down his wholesaling business, and the adverse publicity affected the operation of his ministry. He said that media publicity depicting his ministry as a "very controversial" and "faith healing" ministry all derived from the cancellation of his registration. Furthermore, this has "had tremendous emotional, personal and financial pressures" on his wife. "She had to endure so much the last 18 months. From being accused that she is a fraud to being captured and entangled into false accusation about my conduct as a pharmacist and/or ministry." 6. The applicant said that he had had to sell assets and all of his pharmacies, as well as his house in order to pay debt. Furthermore, the impact on his reputation had made it impossible for him to secure a loan from a bank in his own name to acquire another property and he had been forced to arrange for a smaller house to be acquired in his wife's name. We should add that in cross examination the applicant explained that he had been forced to sell the family home for $9.5 million and that it had been replaced with a lesser property for a purchase price of $3.1 million. These amounts are inconsistent with the impression which we had gained from reading the applicant's affidavit without recourse to his oral evidence to the effect that he was in relatively impoverished circumstances as a result of disposing of his interest in a number of pharmacies and closing down his wholesaling business. 7. The applicant described in his affidavit the impact that the cancellation of his registration has had on him as a person. He described the positive effects as including "still being transformed into the best person God created me to be." He appreciated that "any small mistake can cost you everything you have ever worked hard for." Again, we note the characterisation of the applicant's misconduct in terms of a "small mistake". The applicant also described the effect of the experience of his registration cancellation as one that "shattered my understanding of social equality and made me understand that we are all born equal, or meant to be born equal. Now, when I interact socially with people, I see through a different lens how their natural God given ability can be fostered and nourished to allow them to achieve their best." He described himself as becoming a mentor and facilitator in assisting people. The applicant also described the effect on him in terms that he had "become a person who will sometimes extend unconditional love and acceptance but at the same time, I would reserve openly sharing everything personal. I have learnt over the last 18 months to take people on face value, until proven otherwise. I have become more cautious about allowing people to have great influence over my family affairs….. We have close friends, but our family is our family. I accept others' opinions but don't allow that to dictate the direction of our family, or where we think God is directing us or God is taking us to the next stage in our life. In one sense, this has raised some cautiousness as to whom I personally allow to speak into my life. I am cautious about who can mentor us or, more specifically, me, into growing into the things of God. I am cautious about allowing others to affect my decisions and my life at large." We do not regard this extensive description by the applicant of the impact of the cancellation of his registration as permitting any real degree of introspection into his conduct or of permitting him to engage in any real measure of reflection about his conduct. Indeed, his focus would appear to eschew any propensity to consult with others about his conduct and to take and act upon advice from others. 8. We note for completeness that in the course of his affidavit, the applicant said that he had learnt "that with any enquiries from any official government departments need to be properly addressed and to act with no fear and be (candour) all the time. It is always better to put forward all information requested without being ashamed or fearful that you might have done something wrong. I have also learnt to always be presented with your own legal representatives if you can. Unfortunately at the time of writing this affidavit I could not afford to be legally presented." In the same vein, the applicant said; "I admit I should have been more careful in my purchasing decisions as a director of a wholesaling company and being a registered pharmacist at the same time. I regret making an uncalculated nor thoroughly examined decisions in the past. I totally take responsibility for my actions that caused these events to occur." 9. The applicant attached to his affidavit an "executive profile" which he used to promote himself for the purpose of his Ministry. In oral evidence he said that it was current as at the date of the hearing. The document appears on the applicant's LinkedIn site. That document commences by describing the applicant as "a Health care Professional, Business Development Expert, Entrepreneur and Philanthropist with a mission to help people holistically, transforming their lives from a medical, physical and spiritual perspective, while changing the force of healthcare and access to it for everyday Australians through the development of world-class medical facilities for medical and allied health professionals. Mina has earned the reputation as a trusted advisor, a visionary business leader, and a deeply caring and generous servant and mentor to thousands around the globe." The document then refers to the applicant's degree in Pharmacy, a Master of Arts and to the fact that he is currently completing a doctoral degree in Ministry at the United Theological College in the United States. 10. There is a reference to the fact that the applicant is "best known in healthcare circles for his entrepreneurial attitude and for developing the highly successful Shop Smart chain of wholesale pharmacies, established in Western Sydney nearly 20 years ago. In business, Mina blends a shrewd commercial acumen with practical and intuitive foresight." We read this document as referring to the applicant's involvement in pharmacies but omitting any reference to the fact that his registration as a pharmacist has been cancelled. 11. The document then proceeds to discuss the applicant's "indefatigable energy and tireless commitment to his Christian faith and spirituality. A lifelong practising Christian and regular churchgoer, it was in 2010 that Mina had a profound and compelling encounter with God, prompting a personal reassessment and a change in the course of his life." As we read the document the change in his life has taken the form of witnessing "the power of prayer and actively pursuing spreading the Word." We do not find any reference to introspection and insight into, or contrition or remorse for the events which occurred in 2010. 12. That document concludes by making reference to the applicant as "a passionate philanthropist, community leader and family man." 13. In cross-examination the applicant readily conceded the misconduct found against him. He said that he was sorry for that conduct and that he had let himself down and the consequences had adversely affected his family and his employees in the wholesale business. He acknowledged that he should not have purchased the goods from a person selling them from the back of a van, and that he should have been transparent with the various investigators with whom he dealt. He attributed his problems to his lack of experience as a wholesaler but not as a pharmacist. He said that in 2010 he had been a wholesaler for 11 to 12 years, albeit in a wholesale business which was very small. The applicant acknowledged the importance of honesty in carrying out the profession of a pharmacist including the need to engender public trust. 14. The applicant said that he had sold the five pharmacies which he had owned in the period 2011 to 2013 and had closed down the wholesaling business in late 2011. He remains involved with the five pharmacies and a further three through the franchising operation of his company. 15. The applicant said that the sole reason that he had bought the counterfeit Viagra from Mr Rai was because of the price. 16. When asked in cross-examination about his description of himself in terms of his philanthropic activities, he said that his philanthropy was about serving others by travelling for missions at least twice a year and by caring for humanity. 17. When asked questions concerning his present circumstances, the applicant said that he was now "a reformed character." He described what had happened as being an isolated incident and that the actual profit that he had earned from the transaction "cannot be accounted for" in that it was a very small transaction and the profit was not significant in the context of his overall business transactions. This of course belies the fact that whether the profit was small or large, the applicant's misconduct in dealing with counterfeit Viagra motivated by greed was nevertheless serious, compounded by his dishonesty in dealing with the TGA and other investigators. 18. Furthermore, the applicant described what had led to him misleading the investigators as being a misjudgment, he "went into shock" and did not really know who the TGA was. 19. In describing what he has done to address the character flaws which he had acknowledged, the applicant said that he had enrolled in an ethics course, he had engaged in continuing education programs and was trying to keep himself up-to-date. Furthermore, he had reformed himself because his doctoral studies were directed to self-improvement. We have no evidence of how his doctoral studies might have this effect. The character references 1. The applicant provided eight character references in support of his application all dated June 2018. Almost all of them referred to the fact that he had supplied counterfeit Viagra and the devastating consequences for him and of his family of his deregistration. Not one of them referred to his less than honest involvement with the various investigators. Not one of the referees appears to have read the decision of this Tribunal which effected the cancellation of his registration. 2. One of the referees, Mr Raymond Mawad gave oral evidence. Mr Mawad is a solicitor who said in his written reference that he had known the applicant for 15 years. He said that the applicant's reputation as a pharmacist and business person "has been ruined as a result of his actions. He has suffered great financial losses with bank, landlords and other financial institutions. He is currently experiencing great financial difficulties by not being able to borrow money as a result of his inability to be involved in the business. Recently Mr Attia was forced to sell his principal place of residence for many years and downsize due to his bad credit ratings…." Mr Mawad also said that he was "fully aware of the proceedings and the application before the Tribunal." Despite this assertion, in oral evidence he conceded that he had not read the decision of the Tribunal. He said the applicant had told him that he had "made a mistake", and mentioned that he had purchased counterfeit Viagra. The applicant had described this as an error of judgment on his part. He did not specifically specify what that error of judgment was. Mr Mawad had not been told about the false information given to the TGA and other investigators. and he was under the impression that the only matter of concern was the sale of the counterfeit Viagra. 3. A reference was provided by Mr John Kritikos, the applicant's accountant and financial advisor. He said that the cancellation of the applicant's registration had "deeply affected his personal and business reputation in particular dealing with external parties in business such as banks, finance companies and landlords. This was specifically evident when Mr Attia sold his matrimonial home in order to downsize. As part of the purchase and sale, Mr Attia had to refinance his existing debt however, the bank refused to apply the sale proceeds from the house to the new property but instead used the funds to extinguish other unrelated business debts, as well as calling up all the leasing financing and cancelling all rental bond guarantees. This was solely in response to his licence being cancelled and the negative publicity within the public domain." This is a somewhat different picture from that painted by the applicant whose evidence was directed only to the operation of his pharmacies and his wholesale pharmacy business. Furthermore, the picture which Mr Kritikos painted of serious financial straits is belied to some extent by the applicant's evidence before us of receiving distributions from the franchise operations in the vicinity of $50,000-$60,000 per month. 4. In that none of the referees has made mention of the applicant's less than honest dealings with the investigators and all have referred only to the supply of the counterfeit Viagra, we are unable to rely on this evidence as supporting the applicant's case. The relevant principles 1. We have earlier set out the legislative framework against which these proceedings are to be determined. We also have the benefit of authorities which have discussed the manner in which the legislation is to be applied, in the context of relevant factual circumstances. We adopt the formulation of the principles by this Tribunal in Haber v Health Care Complaints Commission [2018] NSWCATOD 16. At [12] the Tribunal said: We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]; Consideration 1. A consideration of whether or not the applicant may be regarded as being able to practise pharmacy again without causing any undue risk to the health or safety of the public involves as an initial step a discussion of what it was that caused the applicant to engage in the professional misconduct as found by the Tribunal and which resulted in cancellation of his registration. We know that he determined to buy the Viagra at a reduced price to make a bigger profit. On one view this might be characterised as greed; but on another view it represents an inherent characteristic of a business venture. However, the opportunity to purchase the Viagra at a reduced price was accompanied by a lapse in judgment and a failure to analyse and rationalise all the features of that "business transaction". It beggars belief that a careful, prudent and thoughtful person trading as a pharmaceutical wholesaler would buy a restricted substance from someone who was conducting his operations from the back of a van. It also beggars belief that the applicant would not have exercised some caution in taking steps to verify the validity of that product. We do not have access to and have not been provided with any expert scientific opinion as to what might have caused the applicant to act in this way. There is no evidence of any kind suggesting that the applicant suffers from some underlying psychiatric or psychological condition which might have caused him to behave in this way. We do not know whether the applicant suffers from some form of personality disorder or whether his conduct on this occasion was aberrant. 2. In all the circumstances we can only characterise the conduct of the applicant when he acquired the counterfeit Viagra as being motivated by greed, in the sense that the purchases were not accompanied by any proper, prudent and businesslike analysis, and could not be described as purchases undertaken in the normal course of the operation of a wholesale pharmaceutical business. 3. The misconduct of the applicant in the manner in which he failed to fully and properly cooperate with the various investigators is a manifestation of dishonesty as the applicant conceded in the course of giving evidence before us. 4. We next come to consider what insight the applicant possesses concerning these two areas of misconduct. It is telling that he appears to have publicly acknowledged an "unfortunate incident" in purchasing counterfeit Viagra. But there is no public acknowledgement, certainly as conveyed to his referees, that he has acted dishonestly in his dealings with the investigators. 5. In the course of answering a question from one of us, the applicant described the acquisition of the counterfeit Viagra as an "isolated incident". Furthermore it was overall a "small transaction" with an insignificant profit in terms of his overall business transactions. It is our impression that the applicant considered that this was therefore a "small" mistake in the overall context of his business dealings. Of course, such a characterisation denies the risk to the health and safety of the public and in particular to paediatric patients associated with the supply of a restricted medicine which is counterfeit. In the course of answering this question the applicant described the finding of the Tribunal that he had misled the investigators as representing "purely a misjudgement", and said that he had gone into shock and did not really know who the TGA was. He did, however, acknowledge overall that he had been deceptive, misleading and dishonest in his dealings with the investigators. 6. Apart from acknowledging these failings in dealing with the investigators in the course of giving evidence in these proceedings there is no other evidence available to us that would indicate any prior acknowledgement by the applicant of the nature and extent of his dishonesty in dealing with the investigators. 7. We are concerned, overall, that the applicant has not manifested real insight into his conduct and what caused him to behave in this way. Without sufficient insight it is difficult to conclude that it is unlikely that the applicant will again engage in behaviour of this kind. We refer to our comments to this effect made in [22] above; We do not regard this extensive description by the applicant of the impact of the cancellation of his registration as permitting any real degree of introspection into his conduct or of permitting him to engage in any real measure of reflection about his conduct. Indeed, his focus would appear to eschew any propensity to consult with others about his conduct and to take and act upon advice from others. 1. It is clear that the applicant's conduct could not be described in terms of an isolated event or a one-off error of judgment. This is certainly the case in considering the period of time over which the various investigations were conducted, and the misinformation and deceit practised by the applicant during this period. 2. As we have said, the applicant professed contrition and remorse for what occurred in the course of giving evidence in these proceedings. We see little or no evidence of any such prior expression. He has provided a great deal of information about himself in his affidavit by way of direct testimony and annexures. We have set out extracts from this material. We do not regard any of it as manifesting any expression of contrition or remorse for any prior failings. Indeed, he took the opportunity of describing events which occurred in 2010 within his Executive Profile in terms of having "a profound and compelling encounter with God" which prompted "a personal reassessment and a change in the course of his life." We have previously referred to the fact that the applicant then went on to describe his further conduct in terms that he had "witnessed the power of prayer and actively pursued spreading the Word" in order to assist others, but without any reference at all to his own personal convictions. We regard his Executive Profile as demonstrating that the applicant is not a modest man and that he is prone to exaggeration. This does not create confidence that in some way he is remorseful and contrite concerning his misconduct. Indeed, he describes the impact of his misconduct on the effect that it has had on his business, his reputation and his family but not by reference to any deficiency in his own character. We are not persuaded that the applicant has demonstrated such remorse and contrition to create the necessary confidence that his reformation of character is complete. 3. The professional misconduct which gave rise to the cancellation of the applicant's registration was of a most serious kind. It was not confined to a single incident. It created a significant risk to the health and safety of the public and was accompanied by demonstrated lack of judgment as a pharmacist. Furthermore, the applicant behaved dishonestly. We must emphasise that "clear proof" is required to establish there has been a reformation of character. The onus of demonstrating this falls on the applicant, albeit to the civil standard. In circumstances where we are not persuaded that the applicant has demonstrated the necessary insight into his professional misconduct or has expressed appropriate contrition and remorse for what has occurred we cannot be satisfied that he no longer poses a risk to the health and safety of the public and that he can be trusted to practice in a way that conforms to the professional standards expected of a pharmacist. 4. In these circumstances we must conclude that the application should be dismissed. In doing so, we are empowered under section 163B(5) of the National Law to fix a specific time during which our order is not to be reviewed. Having regard to the deficiencies in the applicant's case which we have identified, we are of the opinion that the applicant will require a further period of at least 12 months before he may be in a position to seek to satisfy the Tribunal that he is entitled to maintain a successful application for review under section 163A, and we shall make an order accordingly. Costs 1. The respondent sought an order for costs in its favour if the applicant were unsuccessful. Such an order was not opposed by the applicant. It is proper and appropriate that the respondent should appear as a party in proceedings of this kind to assist the Tribunal as a contradictor. This is a costs jurisdiction and it is appropriate that it should be entitled to a cost order in its favour, which we shall make accordingly. Orders 1. We make the following orders 1. The application is dismissed 2. This order is not to be reviewed until after a period of 12 months from this date 3. The applicant is to pay the costs of the respondent assessed in default of agreement. ********** 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 21 August 2018 - Spelling of Member's name corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2018