Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Elias (No. 2) [2019] NSWCATOD 51 Hearing dates: On the papers Date of orders: 09 April 2019 Decision date: 09 April 2019 Jurisdiction: Occupational Division Before: A Britton, Principal Member M Cross, Professional Member K Carter, Professional Member R Leontini, General Member Decision: 1. Mr Simon Elias is reprimanded. 2. While Mr Elias resides in NSW the appropriate review body for the purpose of Pt 8, Div. 8 of the National Law is the Council. Otherwise the appropriate review body is the Pharmacy Board of Australia. 3. Pursuant to s 163(4) of the National Law the following conditions are imposed on Mr Elias's registration for a period of 12 months or such longer period as determined by the Pharmacy Council (the Council): A Mentor relationship (a) Mr Elias is to nominate a registered experienced pharmacist to act as his professional mentor for approval by the Pharmacy Council of NSW ('the Council') in accordance with the Council's Mentoring Policy. The mentoring relationship is to continue for a minimum period of 12 months from the date of the Council's approval or appointment of the mentor, with the Council to determine if an additional period of mentoring is appropriate. (b) The respondent is to meet with the mentor at a frequency and for a period of time to be determined by the Council. (c) At each meeting Mr Elias is to review and discuss his practice with his approved mentor with a particular focus on: (i) Management of his pharmacy practice; (ii) Supervision of pharmacy staff; and (iii) Compliance with his obligations pursuant to the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW). (d) Mr Elias is to authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. (e) Mr Elias is to meet all costs associated with the mentoring conditions. (f) Mr Elias must provide the mentor with a copy of the decision made by the New South Wales Civil and Administrative Tribunal: Health Care Complaints Commission v Elias [2019] NSWCATOD 19. B Audit (a) Mr Elias is to submit to an audit of his practice by a person nominated by the Council. (b) The first audit is to be undertaken no later than 10 July 2019 and thereafter at a frequency determined by the Council. (c) The auditor is to examine and assess the following aspects of Mr Elias's practice: (i) dispensary systems; and (ii) the storage, supply, recording and destruction of drugs including drugs of addiction. (d) Mr Elias is to authorise the auditor to provide the Council with a report on its findings. (e) Mr Elias is to meet all costs associated with the audit and any subsequent audits and reports required by the Council. (f) This condition is to remain in place for 12 months or such longer period as determined by the Council. (g) Mr Elias must provide the auditor with the decision, Health Care Complaints Commission v Elias [2019] NSWCATOD 19. C Performance assessment (a) Mr Elias is to submit to a performance assessment conducted by a person nominated by the Council, to be conducted no later than 10 November 2019. (b) Mr Elias must provide the person appointed to undertake the assessment with the decision, Health Care Complaints Commission v Elias [2019] NSWCATOD 19. (c) This condition is to remain in place for 12 months or such longer period as determined by the Council. Catchwords: PROFESSIONS AND TRADES — health practitioner — appropriate form of protective orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) Cases Cited: Health Care Complaints Commission v Elias [2019] NSWCATOD 19 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Simon Elias (Respondent) Representation: Counsel: N Evans (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 18/162846 Publication restriction: Nil REASONS FOR DECISION 1. On 8 January 2019 following a hearing conducted into a complaint made by the Health Care Complaints Commission (the Commission) about pharmacist Simon Elias, we handed down a decision in which we found that the conduct the subject of the complaint amounted to "unsatisfactory professional conduct" and "professional misconduct": Health Care Complaints Commission v Elias [2019] NSWCATOD 19. We decided that it was appropriate to exercise the power to issue Mr Elias with a reprimand and, in addition, to continue to impose conditions on his registration as permitted by s 149A(1) of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. In our reasons for decision we proposed a number of conditions to be imposed on Mr E's registration and invited the parties to comment on the form of those conditions: at [68]. 3. Both parties made written submissions commenting on the form of the proposed conditions. We decided to determine the issue of the proper form of conditions "on the papers" without holding a hearing, as permitted by s 50(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). We did so because both parties consented and because we were satisfied that the issue of the appropriate form of orders could be adequately determined by considering the parties' written submissions: s 50 of the NCAT Act. 4. These reasons should be read together with Health Care Complaints Commission v Elias [2019] NSWCATOD 19. Response to the proposed conditions 1. The proposed conditions cover three areas: mentoring, auditing and performance review. The Commission proposes a number of minor amendments to the form of the proposed conditions on mentoring and performance assessment. Those amendments are not opposed by Mr Elias and we adopt them. 2. With respect to the proposed audit condition the Commission suggests that it be amended to require that Mr Elias' practice and not merely his records be subject to audit. Mr Elias opposes that amendment pointing out that there is scope within the performance assessment condition for concerns about his practice to be addressed. We agree that the audit condition should apply to more than Mr Elias' and make the amendment proposed by the Commission. Orders 1. 1. Mr Simon Elias is reprimanded. 2. 2. While Mr Elias resides in NSW the appropriate review body for the purpose of Pt 8, Div. 8 of the National Law is the Council. Otherwise the appropriate review body is the Pharmacy Board of Australia. 3. 3. Pursuant to s 163(4) of the National Law the following conditions are imposed on Mr Elias's registration for a period of 12 months or such longer period as determined by the Pharmacy Council (the Council): A Mentor relationship 1. Mr Elias is to nominate a registered experienced pharmacist to act as his professional mentor for approval by the Pharmacy Council of NSW ('the Council') in accordance with the Council's Mentoring Policy. The mentoring relationship is to continue for a minimum period of 12 months from the date of the Council's approval or appointment of the mentor, with the Council to determine if an additional period of mentoring is appropriate. 2. The respondent is to meet with the mentor at a frequency and for a period of time to be determined by the Council. 3. At each meeting Mr Elias is to review and discuss his practice with his approved mentor with a particular focus on: 1. Management of his pharmacy practice; 2. Supervision of pharmacy staff; and 3. Compliance with his obligations pursuant to the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulation 2008 (NSW). 1. Mr Elias is to authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. 2. Mr Elias is to meet all costs associated with the mentoring conditions. 3. Mr Elias must provide the mentor with a copy of the decision made by the New South Wales Civil and Administrative Tribunal: Health Care Complaints Commission v Elias [2019] NSWCATOD 19. B Audit 1. Mr Elias is to submit to an audit of his practice by a person nominated by the Council. 2. The first audit is to be undertaken no later than 10 July 2019 and thereafter at a frequency determined by the Council. 3. The auditor is to examine and assess the following aspects of Mr Elias's practice: 1. dispensary systems; and 2. the storage, supply, recording and destruction of drugs including drugs of addiction. 1. Mr Elias is to authorise the auditor to provide the Council with a report on its findings. 2. Mr Elias is to meet all costs associated with the audit and any subsequent audits and reports required by the Council. 3. This condition is to remain in place for 12 months or such longer period as determined by the Council. 4. Mr Elias must provide the auditor with the decision, Health Care Complaints Commission v Elias [2019] NSWCATOD 19. C Performance assessment 1. Mr Elias is to submit to a performance assessment conducted by a person nominated by the Council, to be conducted no later than 10 November 2019. 2. Mr Elias must provide the person appointed to undertake the assessment with the decision, Health Care Complaints Commission v Elias [2019] NSWCATOD 19. 3. This condition is to remain in place for 12 months or such longer period as determined by the Council. ********** 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 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: 09 April 2019