Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Farhat [2018] NSWCATOD 193 Hearing dates: 26 November 2018 Date of orders: 10 December 2018 Decision date: 10 December 2018 Jurisdiction: Occupational Division Before: J Millbank, Senior Member D Preswick, Senior Member J Zwart, Senior Member B Radcliffe, General Member Decision: (1) Pursuant to findings of unsatisfactory professional conduct and misconduct, under s149C(4)(a) of the National Law if the practitioner was still registered as a pharmacist the Tribunal would have cancelled his registration; (2) Pursuant to s149C(4)(b) of the National Law the practitioner is disqualified from being registered as a pharmacist for a period of 3 years from the date of this decision; (3) Pursuant to s149C(4)(c) of the National Law, the Tribunal requires the Pharmacy Board to record the fact that had he been registered the Tribunal would have cancelled Mr Farhat's registration for a period of 3 years from the date of this decision; (4) The 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); (5) 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 listed in the schedule to the complaint. Catchwords: TRADES AND PROFESSIONS ─ pharmacy ─ misappropriation of Schedule 8 and 4D drugs ─ falsification of drug register ─ failure to report missing drug register ─ self administration of drugs Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW); Health Practitioner Regulation National Law NSW 2009 (NSW) ('The National Law') Poisons and Therapeutic Goods Regulation 2008 (NSW); Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Hussein Farhat (Respondent) Representation: Counsel: A Petrie (Applicant) A Chhabra (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Hanna Legal (Respondent) File Number(s): 2018/00115236 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 listed in the schedule to the complaint. REASONS FOR DECISION Background 1. Mr Farhat became a registered pharmacist in 2013. From 2013 Mr Farhat worked as the pharmacist in charge at two pharmacies owned by the same proprietor, having previously completed an intern year at one of those pharmacies. 2. In March 2015 Mr Farhat ceased employment at the relevant pharmacies and the proprietor notified the Pharmaceutical Services Unit (PSU) of missing Schedule 8 drugs and a missing Drug Register. The PSU investigation identified large quantities of missing drugs in the period May 2014 to April 2015 and erroneous entries in the existing Drug Register. 3. In May 2015 the practitioner and his legal representative met with the PSU. At that meeting the practitioner admitted to misappropriating and consuming large quantities of Endone, Duromine and Alprazolam from the pharmacies from March 2014 onwards and to making false entries in the drug register to conceal this. 4. A section 150 hearing was convened by the Pharmacy Council in May 2015, leading to conditions that the practitioner not practise and surrender his Drug Authority. Mr Farhat later allowed his registration to lapse. 5. Mr Farhat saw his GP in June 2015 and was referred to see a psychiatrist specialising in addiction medicine, whom he saw in August 2015. The practitioner was assessed by a Council appointed psychiatrist in June and August 2015. Apart from these appointments, Mr Farhat did not undertake any medical treatment or avail himself of any support services for detoxification, addiction or assistance in addressing the underlying issues that led to his drug use. 6. From mid-2015 to the date of the hearing in late 2018 Mr Farhat has worked in an alternate field and has now set up his own business in that field. 7. Mr Farhat did not respond to a s 40 letter from the HCCC in May 2017 requesting a response to the findings of the HCCC investigation, nor did he file any material in these proceedings. As will be discussed, it seems that Mr Farhat's attitude is that the situation that led to these proceedings is behind him, and he does not wish to engage with it. Issues 1. This matter comprises six complaints of unsatisfactory professional conduct involving Schedule 8 and 4D drugs; concerning multiple instances of the misappropriation, false entries in drug registers, and self administration. Complaint 7 is that these matters individually and cumulatively amount to professional misconduct. 2. Shortly prior to the hearing, the practitioner's legal representative wrote to the HCCC and conceded all complaints. This document was tendered at the hearing. 3. The issues facing the Tribunal were therefore: 1. Whether the admitted conduct amounted to professional misconduct and 2. Appropriate protective orders 1. The practitioner attended the hearing and was represented by Counsel. The practitioner's position at the hearing was that he did not contest that the admitted conduct amounted to professional misconduct and that a deregistration order was appropriate in all the circumstances. 2. The Tribunal indicated that it would be very helpful to hear from the practitioner to assist in making the Stage 2 determination, however he declined to give any evidence. 3. The Tribunal was therefore faced with the task of making a determination concerning protective orders in the absence of any current evidence as to the practitioner's attitude to the complaints, to drug misappropriation, drug misuse, and to his professional responsibilities. We had no evidence of the practitioner's abstinence from drugs, what strategies or support mechanisms he may have put into place to prevent relapse nor his intentions, if any, for future practice. Submissions 1. Counsel for the practitioner submitted that the practitioner had displayed both insight and remorse through his contemporaneous admissions to his GP and the Council appointed psychiatrist. The practitioner's non-disputation of the complaints and sanction should also be accepted as evidence of remorse. 2. Counsel submitted, on instructions, that the practitioner had gone 'cold turkey' in May 2015 and, despite having not pursued treatment, had not misused drugs since that time. Mr Farhat was successful in his small business and was not seeking to return to pharmacy in the near future. 3. Counsel for the HCCC submitted that the conduct should be regarded as very serious given that it involved an abuse of professional position to misappropriate drugs, dishonesty in the falsification of drug registers, and the use of a high volume of multiple drugs over a prolonged period. 4. Statements made by the practitioner to treating doctors indicated that his misuse of other pharmaceutical drugs pre-dated the incidents complained of, that he had stockpiled and used some of the misappropriated drugs in the months following the termination of his employment at the pharmacies, and that he had not followed up on referrals or sought treatment. These factors should give the Tribunal concern about the practitioner's insight and his susceptibility to future drug use. 5. At the outset of the hearing the HCCC sought deregistration with a non-review period of two years. At the conclusion of the hearing, in light of the inability to make a current assessment of the practitioner's attitude and insight, the Commission sought a non-review period of three years. Findings and Protective Orders 1. While this conduct was apparently in the service of an escalating addiction, it nevertheless involved a breach of trust and calculated course of conduct to avoid detection. It was both improper and unethical in addition to being significantly below the expected standard of a pharmacist of the level of training and experience as the practitioner. 2. We find that the conduct cumulatively amounts to professional misconduct both by reason of its repetition and its inherent seriousness. The conduct involved falsification of drug registers and a prolonged pattern of misappropriation and misuse of drugs from the pharmacies at which Mr Farhat was working as the Pharmacist in Charge. 3. The conduct occurred for 12 months. The misappropriated drugs amounted to over 10,000 Endone tablets, 2250 Alprazolam tablets, and 780 Duromine tablets. The very significant quantities of drugs which the practitioner admitted to consuming in this period, while working six days per week, lead to the inescapable conclusion that he was affected by drugs during the performance of his professional duties. Such conduct placed the patients of those pharmacies at serious risk of harm over a significant period. 4. The conduct did not cease until Mr Farhat's access to the supply was terminated. Mr Farhat did not seek professional assistance to overcome his addiction either before detection, or since. 5. The Tribunal gives the practitioner credit for attending the hearing and for his belated, but fulsome, admissions of liability. 6. The absence of any direct evidence from the practitioner, or any character references, makes the task of assessing the risk to the public posed by the practitioner in the future very difficult. However the Tribunal is satisfied that his conduct posed a very serious risk to the public in the past. There is no acknowledgement from the practitioner in the evidence of any appreciation, then or now, of the risk of harm he posed to his patients, nor the abuse of public trust involved. 7. Having considered the conduct as a whole, the Tribunal concludes that the gravity of the misconduct means that deregistration is the only appropriate order. 8. A period of deregistration before being permitted to reapply for registration is necessitated both by the need for a general deterrence message to the pharmacy profession concerning such a serious abuse of position, and by reference to the specific risk posed by the practitioner. The lack of evidence from the practitioner, including the absence of any reparation, treatment or remediation efforts to date, leave us with an unanswered concern that the practitioner would pose a risk to the safety of patients if he were in current practice or were to return to practise in the near future. 9. The Tribunal accepts the submission of the HCCC that some considerable period will be required for the practitioner to demonstrate insight and remediation in order to fulfil the onus of proving fitness to practise in a reregistration application before a differently constituted Tribunal. Counsel for the practitioner concurred in oral submissions that a period of two or three years was proportionate and appropriate. Orders 1. Pursuant to findings of unsatisfactory professional conduct and misconduct, under s149C(4)(a) of the National Law if the practitioner was still registered as a pharmacist the Tribunal would have cancelled his registration; 2. Pursuant to s149C(4)(b) of the National Law the practitioner is disqualified from being registered as a pharmacist for a period of 3 years from the date of this decision; 3. Pursuant to s149C(4)(c) of the National Law, the Tribunal requires the Pharmacy Board to record the fact that had he been registered the Tribunal would have cancelled Mr Farhat's registration for a period of 3 years from the date of this decision; 4. The 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); 5. 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 listed in the schedule to the complaint. ********** 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: 10 December 2018