Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Pickett [2019] NSWCATOD 53 Hearing dates: 11 and 12 March 2019 Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member R Samimi, Senior Member D Preswick, Senior Member J Sillince, General Member Decision: 1.The complaints of unsatisfactory professional conduct and professional misconduct are proved. 2. The complaints of impairment and competence are proved. 3. The practitioner's registration as a pharmacist is cancelled. 4. The practitioner cannot make an application for review of the cancellation order (Reinstatement Order) until 18 months from the date of this decision. 5. The Registrar is requested to notify the Pharmacy Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2, 3 and 4 above as soon as practicable. 6.The Practitioner is to pay the costs of Health Care Complaints Commission incurred and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: PROFESSIONS AND TRADES – Health Practitioner –Pharmacist – opioid dependency – misappropriation of Schedule 8 drugs – falsification of records –impairment - competence - whether conduct constitutes unsatisfactory professional conduct and professional misconduct – consideration of appropriate protective orders Legislation Cited: Crimes Act 1990 (NSW) Health Practitioner Regulation National Law Drug Misuse and Trafficking Act 1985 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 Health Care Complaints Commission v Orr [2015] NSWCATOD 124 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 R v Byrnes & Hopwood [1995] HCA 1 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Luke Pickett (Respondent) Representation: Counsel: Ms Petrie Solicitors: Health Care Complaints Commission (Applicant) Mr Pickett appeared in person File Number(s): 2018/266950 Publication restriction: Nil REASONS FOR DECISION Introduction 1. Mr Pickett was first registered to practise as a pharmacist in 2010. In February 2016, he commenced employment as the Pharmacy Manager at two pharmacies owned by the same employer located in the New England region of NSW. He worked mainly in one pharmacy and on a required basis in the other. 2. It is not in dispute that Mr Pickett developed an opioid addiction and misappropriated opioids from his employer. Nor is it disputed that Mr Pickett falsified records to hide his misappropriation. He resigned from his employment at both pharmacies on 31 August 2016. 3. On 9 September 2016, the Pharmacy Council of NSW, the Council, conducted proceedings against Mr Pickett under section 150 of the National Law. The Council suspended Mr Pickett's registration as a Pharmacist. This was done on the basis of the protection of the public. Mr Pickett was also referred for a health assessment with a Council Appointed Practitioner, Dr Huw Raggatt. 4. At around the same time Mr Pickett was charged with various offences under the Drug Misuse and Trafficking Act 1985, Crimes Act 1990 and the Poisons and Therapeutic Goods Act 1966. These offences included possession of prohibited drugs and prescribed restricted substances, stealing medications and prescription medications from his employer and possession of unlawfully obtained goods. Mr Pickett made admissions in respect of these charges. 5. On 21 December 2016, the Local Court of New South Wales at Tamworth determined to deal with Mr Pickett in relation to the charges on the basis that he was suffering from a mental condition from which treatment is available in a hospital but was not a mentally ill person within the meaning of the Mental Health Act 2007. It was found that based on the outline of facts submitted in the proceedings and other evidence that it would be more appropriate to deal with Mr Pickett in accordance with the provisions of Part 3 of the Mental Health (Forensic Provisions) Act 1990 than otherwise in accordance with the relevant law: see section 32(3)(b) Mental Health (Forensic Provisions) Act 1990. 6. The charges were dismissed subject to a number of conditions which included Mr Pickett's attendance at appointments with his treating general practitioner and psychologist. 7. The Health Care Complaints Commission, the Commission, contends that Mr Pickett's conduct amounts to unsatisfactory professional conduct and professional misconduct. It also contends that he suffers impairment, specifically opioid dependency, and as a result is not competent to practise pharmacy. The Application before the Tribunal 1. On 30 August 2018 the Commission, applied to the Tribunal for disciplinary findings and orders against Mr Pickett under the National Law. The application attached a Complaint dated 30 August 2018. The Complaint was subsequently amended at the hearing. There is no dispute about the factual matters which underpin the Amended Complaint. 2. The Complaint is made up of four individual complaints. The first and third complaints are supported by a discrete set of particulars. 3. The first complaint is a complaint of unsatisfactory professional conduct against Mr Pickett under section 139B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. 4. The basis for the first complaint is that between February 2016 and 31 August 2016 Mr Pickett, misappropriated a number of Schedule 8 medications for his personal use from the pharmacies where he worked. These comprised 588 tablets of Oxycodone (Oxycontin) 80mg, 344 tablets of Oxycodone (Oxycontin) 40mg, 100 tablets of Alprazolam (Kalma) 1mg; 30 tablets of Methylphenidate (Concerta) 54mg. During this period, Mr Pickett worked at the pharmacies at times when he was in a markedly impaired state due to his opioid dependency. 5. On 1 November 2016, after Mr Pickett resigned from his employment, he was found in possession of cannabis (10.74 grams) together with equipment to administer it, being a glass bong with attached cone piece. This was discovered after police stopped a vehicle which Mr Pickett was driving and conducted a search. It was during this search that a number of prescription medications were also seized. 6. The police search revealed that Mr Pickett had in his possession; 58 tablets of Tamoxifen (Genox) 20mg; 23 tablets of Phentermine (Duromine) 40mg; 22 tablets of Clonidine (Catapres) 100mg; 14 tablets of Clarithromycin (Sandoz) 250mg; 23 tablets of Domperidon (Motilium) 10mg; 18 tablets of Onadansetron 8mg and 1 packet of Testosterone Undecanoate (Andriol Testocaps) 40mg. These are prescribed restricted substances and their possession was contrary to Section 16(1) of the Poisons and Therapeutic Goods Act 1996. 7. Arising from the police search Mr Pickett was charged with various criminal offences. The conduct which was the subject of the criminal charges also forms part of the first complaint. 8. The second complaint is a complaint of professional misconduct arising from the same matters as detailed in the first complaint. 9. Professional misconduct is set out in section 139E of the National Law. It provides: For the purposes of this Law professional misconduct of a registered health practitioner means- unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration, or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Practitioner's registration. 1. The third and fourth complaints are related. 2. The third complaint is that Mr Pickett is impaired within the meaning of section 5 of the National Law, in that he suffers from an impairment being a physical or mental impairment, disability, condition or disorder, which detrimentally affects or is likely to detrimentally affect his capacity to practise pharmacy. The basis for this complaint is grounded in the Commission's contention that Mr Pickett suffers from an impairment namely opioid dependency, and that he practised as a pharmacist whilst impaired. Reference is made to Mr Pickett suffering depression and anxiety at extremely severe levels, and reliance is placed on the Local Court's determination to deal with all the criminal charges against him on the basis of Part 3 of the Mental Health (Forensic Provisions) Act 1990. 3. The fourth complaint is that because of Mr Pickett's impairment he is not competent to practice the profession of pharmacy under section 139 of the National Law. It is contended that that his impairment is of a sufficient nature and degree to impair his mental capacity to practise his profession. 4. Mr Pickett provided a written reply to the Complaint and gave oral evidence. In his written reply he accepted that his conduct amounted to unsatisfactory professional conduct and professional misconduct. He accepted that during the period February 2016 to August 2016 he suffered from an opioid dependency. He also accepted that during this period he was impaired and he suffered from extreme levels of anxiety and depression. Indeed Mr Pickett does not dispute the particulars of the complaints. However, and as we understand his position, he contends that he no longer suffers from an opioid dependency, is not impaired and is competent to practise. Evidence to support the complaints Evidence about opioid dependency and use of other prohibited drugs 1. After concerns were raised by a member of staff about Mr Pickett's behaviour at work, a stock check in relation to Schedule 8 drugs of addiction was initiated. Various medications were identified as missing and Mr Pickett's employer confronted him about discrepancies which were found in the Dangerous Drug Register. Mr Pickett admitted misappropriating the drugs of addiction for self-administration. On 29 August 2016 Mr Pickett's employer notified the Australian Health Practitioner Regulation Agency, AHPRA, about Mr Pickett and his conduct. On 5 September 2019, a subsequent notification was made by Mr Pickett's employer in relation to the discovery of further missing Schedule 8 medications. 2. On 31 August 2016, Mr Pickett made his own notification to AHPRA about his conduct. In this notification he made concessions to the effect that he had practiced pharmacy whilst affected by drugs and had used Oxycodone at work between February 2016 and August 2016. 3. On 2 September 2016, Mr Pickett was interviewed by the officers of the Pharmaceutical Regulatory Unit, PRU, where he made admissions of misappropriation of Oxycodone and Alprazolam tablets. He agreed to relinquish his drug authority to possess, supply, dispense or compound Schedule 8 drugs under the Poisons and Therapeutic Goods legislation effective 13 September 2016. 4. Although Mr Pickett is unable to quantify the exact amount of Schedule 8 medications that he misused, he accepts as accurate the amounts which have been specified by the Commission in the first complaint. In a statement to the Commission made in March 2017 he estimated his use of Oxycodone to be in the vicinity of six to ten 80 mg tablets per day. He utilised Alprazolam, also a Schedule 8 drug, during the acute stages of his withdrawal to help him sleep. He also admits that amongst other methods he hid his misappropriation of opioids by not recording the receipt of medication into the pharmacy registers. 5. Mr Pickett has given a range of explanations about the nature and extent of his opiate use. 6. In Mr Pickett's self-notification to AHPRA he asserted that he had only taken oxycodone during pharmacy shifts. He blamed his drug dependency issues on an existing back injury, stressful and emotional events that had taken place both at and outside work and a general absence of healthy living and exercise. He referred to a period of recreation leave of three weeks that he spent in Japan from late June until the middle of July in which he did not have any access to opioids and as a result did not take them. 7. Mr Pickett disclosed during a consultation with a general practitioner on 1 September 2016 that he was taking Oxycontin 10mg in the morning and Endone 5-10mg daily for back pain as prescribed by a previous GP. He was concerned he was addicted and wanted to get off them. 8. When Mr Pickett was interviewed by the PRU he said that he only took Oxycodone at work. He also admitted taking Alprazolam to counteract one of the common withdrawal effects, insomnia. He blamed his abuse of Oxycodone on chronic back pain, death of his grandfather and mostly emotional pain as a result of breakdown in professional relationship with one of the pharmacists at his workplace. He acknowledged that his inability to deal or handle negative situations had led to his use of drugs in an attempt to escape from the situation he was in. 9. During the section 150 proceedings conducted by the Council Mr Pickett put his use of opiates down to mood and explained that he took them because he was miserable. During an interview with Dr Raggatt, the Council appointed Psychiatrist, Mr Pickett corrected his previous report that his use of opiates was associated with a need to treat back pain saying instead that his use was related to feelings of stress. He estimated his use to have been around 800mg of Endone per day. He reported he was not using on days that he was not working, but after a two day break was craving the Endone and would use it again as soon as he returned to work. He referred to the period he spent in Japan and because he had been unable to source any opioids, underwent severe withdrawal. 10. During the interview with Dr Raggatt Mr Pickett also admitted a period of perhaps a fortnight using cannabis, which he said was to help with his anxiety and difficulty in sleeping. He said that he quickly realised that this caused him to feel paranoid and he was merely swapping one form of drug abuse for another. 11. In a letter to the Commission dated 9 March 2017 Mr Pickett stated that he initially started taking 10mg of Oxycontin CR daily in the evening after work. He stated that he did not consume these medications during work hours and only consumed them after work and/or on his days off. He specifically stated that he did not consume the Oxycodone and/or Alprazolam while working. 12. Whilst Mr Pickett was suspended as a pharmacist and before being dealt with for the criminal charges of misappropriation of opioids for personal use, he was found by police to be in possession of cannabis and prescribed restricted substances. Mr Pickett initially claimed to police that the prescription medication and cannabis was not his however when he was told that the items would be forensically examined for fingerprints and DNA he altered his version and admitted ownership of all the seized items. The Local Court Proceedings 1. After he was charged Mr Pickett attended Peter Smith a psychologist for nine therapy sessions between 1 September and 6 December 2016. As part of the Local Court proceedings Mr Smith prepared a report dated 12 December 2016. In this report he referred to Mr Pickett's family background and difficulties. He noted that Mr Pickett had reported self-medicating with a variety of substances since his adolescence. He referred to Mr Pickett's Depression Anxiety Stress Scales, or DASS screening in September and November 2016. The November screening indicated that both Mr Pickett's depression and anxiety were within the extremely severe clinical range and his overall emotional stress was in the severe range. 2. In relation to a future mental health treatment plan Mr Smith recommended that Mr Pickett continue ongoing treatment sessions, which he noted were fortnightly and to regularly consult with his general practitioner to ensure medication compliance. He noted that Mr Pickett had some way to go in his therapy, he continued to suffer depression and anxiety at extremely severe levels and without ongoing professional support and intervention could quite easily and rapidly deteriorate. 3. When the Local Court dealt with Mr Pickett under section 32 of the Mental Health (Forensic Provisions) Act 1990 the charges were dismissed subject to a number of conditions as follows: 1. that Mr Pickett take all medication prescribed by his treating general practitioner or psychiatrist, 2. attend all appointments with his general practitioner, and attend all appointments with his psychologist Peter Smith the next appointment being 22 December 2016 3. attend all appointments with his psychiatrist Dr Raggatt, his next appointment to be arranged within the next 6 months 4. comply with all directions from the pharmacy council of NSW as to drug and alcohol rehabilitation, fortnightly drug testing and any other reasonable direction. 1. It should be noted that Dr Raggatt was never Mr Pickett's treating psychiatrist. He had been appointed by the Council to assess Mr Pickett as part of the section 150 proceedings. 2. Mr Pickett undertook three Urine Drug Analysis tests on 10 November 2016, 3 February 2017 and 14 March 2017. There was no evidence before the Tribunal of any recent drug testing. 3. Mr Pickett's last appointment with Mr Smith was on 22 December 2016. Mr Pickett has had no further psychological therapy or counselling until shortly before the hearing of these proceedings. Evidence about Impairment 1. As noted above as part of the section 150 proceedings Mr Pickett was seen and assessed by Dr Raggatt. 2. Dr Raggatt saw Mr Pickett on 2 November 2016 and wrote a report dated 5 November 2016. This report together with oral evidence given by Dr Raggatt at the hearing is relied upon by the Commission to support its claim that Mr Pickett suffers and impairment and that this impairment is continuing. 3. Dr Raggatt concluded in his report that Mr Pickett was impaired to practice as a Pharmacist under the National Law. In support of this conclusion Dr Raggatt referred to the fact that Mr Pickett's use of opiates from February to August 2016 was at a very high level and on Mr Pickett's account was for its psychoactive properties rather than for analgesia. He reported Mr Pickett's motivation for using the opiates and alprazolam was for the management of stress. 4. Dr Raggatt noted that Mr Pickett did not present at the assessment with any signs of either drug or alcohol intoxication or withdrawal. In addition Mr Pickett reported that he had not used any opiates for approximately two months. He had attended his general practitioner and psychologist and had reportedly been compliant with medication and psychological therapy. 5. Notwithstanding these matters Dr Raggatt noted that Mr Pickett remained in the early stages of abstinence and during this short period had used cannabis despite its illegality and his suspension as a pharmacist. In Dr Raggatt's view Mr Pickett would need a much longer period of abstinence and psychological therapy to improve his stress management skills and reduce his risk of reverting to abusing illicit or non-prescribed drugs in the future. He also reported that Mr Pickett had not received specific drug and alcohol counselling and had not been exposed to the various prevention strategies that he will need to learn to optimise his chances of life long abstinence. 6. Dr Raggatt recommended that suspension of Mr Pickett's registration continue. He recommended that Mr Pickett be required to undergo regular treatment from a drug and alcohol specialist service, and to undertake regular urine drug screens, initially twice weekly to monitor his abstinence from cannabis, opiates and benzodiazepines. He also recommended that Mr Pickett continue psychological counselling with regular attendance upon his general practitioner for regular review of his mental health given his vulnerability to depression. He concluded that Mr Pickett was impaired due to an opiate dependence. 7. As part of these proceedings in November 2018 the Commission arranged for Mr Pickett to attend an appointment with Dr Raggatt for the purpose of preparing an updated report. Mr Pickett did not attend the appointment. He explained his failure to attend on family matters. He accepted that his failure to attend had not assisted his case. 8. Mr Pickett gave evidence about his circumstances. These included personal and family events which had occurred. Mr Pickett described these matters in some detail and the associated trauma he experienced as a result. He reflected that his opioid dependency and mental health issues had come about because of his inability to deal with these events. 9. Mr Pickett explained that he had not continued his sessions with Mr Smith for a number of reasons. After the resolution of his court matters he obtained work and accommodation on a farm with a Christian family. The family with whom he stayed were not users of drugs or alcohol. He had been encouraged to believe by those he was living and working with that he could address his issues through reading and self-reflection. Later in 2017 he moved to north eastern New South Wales and in 2018 he relocated to the central coast. He also identified the cost of therapy and counselling sessions as an issue. 10. Mr Pickett believed that he was in a better position now and no longer suffered an impairment as he had in the past. He believed he was better able to identify triggers. He said he was more open and honest with others when he feels stress. He had learned much over the last two years and worked daily to address the issues that had led to his problems. He had not turned to medication. He had obtained and maintained employment. He had taken the steps he needed in order to make better choices. He had a supportive partner whom he had known for many years and they had been in relationship for some two months. 11. At the time of the hearing Mr Pickett had recommenced on anxiety medication prescribed by his current GP. He had attended two counselling sessions with Mr Albert Morrison as part of a GP referral for 6 sessions. Mr Morrison gave oral evidence at the hearing. He is a registered nurse with specialist qualifications in mental health. He is not experienced in drug dependency issues. In relation to Mr Pickett's current mental health he expressed the view that Mr Pickett suffered clinical depression and anxiety. 12. Mr Morrison gave evidence that he had not seen the reports about Mr Pickett prepared by Dr Raggatt or Mr Smith. He had also not seen a copy of the Complaint which is the subject of these proceedings. As far as his future therapy for Mr Pickett was concerned he was still formulating a treatment plan to reduce Mr Pickett's anxiety. He expected that treatment may take more than the six sessions that were currently provided for under Mr Pickett's GP referral. 13. Dr Raggatt also gave evidence at the hearing. He observed that the quantity of Oxycodone that Mr Pickett had reported he had taken, that is; 800 mg daily, was a significant amount and demonstrated a considerable tolerance to opioid medication. 14. Dr Raggatt was asked to reflect on his earlier views and give an opinion as to the adequacy of Mr Pickett's recent efforts to address his previous drug use and mental health issues. Dr Raggatt was specifically asked to comment on the adequacy of Mr Pickett's attendance at two counselling sessions with Mr Morrison and his recommencing of prescribed medication for anxiety. 15. Dr Raggatt stated that that he did not believe that these efforts were adequate. He noted that his report was made some two years ago. He referenced that during the intervening period Mr Pickett had failed to deal with the issues he had canvassed in his report. He stated that the focus of Mr Pickett's GP and counsellor, including the current health professionals, had not been on drug and alcohol issues. He believed that in the light of Mr Pickett's background he remained at risk of relapse. Although he had not seen Mr Pickett for more than two years, if he had not obtained specific help as outlined in his earlier report then his chance of relapse was high and he was therefore impaired. The issues 1. In light of the evidence and the admissions made by Mr Pickett we are satisfied that the particulars detailed in the first complaint relating to misappropriation of schedule 8 medications, possession of prescribed restricted substances, possession of a prohibited drug being cannabis and possession of equipment to administer it are established. We are also satisfied that between February 2016 and 31 August 2016 when Mr Pickett worked at the pharmacies he did so at times when he was markedly impaired due to his opioid dependency. 2. We also find in the light of the admissions made by Mr Pickett and the report of Mr Smith dated 12 December 2016 that at the time Mr Pickett committed the criminal offences with which he was charged he suffered from depression and anxiety at extremely severe levels. Indeed it was the report of Mr Smith that led to the Local Court's decision to deal with Mr Pickett under the provisions of Part 3 of the Mental Health (Forensic Provisions) Act 1990. 3. Accordingly our primary focus has been on whether Mr Pickett's conduct constituted unsatisfactory professional conduct and professional misconduct, and whether he has an impairment now which detrimentally affects or is likely to detrimentally affect his capacity to practise pharmacy; and if he does have an impairment, whether it renders him not competent to practise pharmacy as defined in the National Law. Conclusions Unsatisfactory professional conduct 1. The first complaint alleges "unsatisfactory professional conduct" within the meaning of section 139B(1)(l) of the National Law. Section 139B(1)(l) of the National Law refers to "improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". It requires a determination by the Tribunal as to whether a practitioner has been guilty of unsatisfactory professional conduct arising from an assessment as to whether conduct was improper or unethical relating to the practice of pharmacy. It is therefore directed at a broader range of conduct than that which occurs "in the practice of" a person's profession. 2. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1. "in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct." There is no reason to suppose that the words should be given a different meaning in the National Law. 3. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] 183 CLR 501 at 514-515. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper. 4. In HCCC v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s. 139B(1)(l) stating at paragraphs 47 to 49: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited. 1. A pharmacist occupies a position of trust in our community by virtue of having access to drugs of addiction. They are responsible for the secure storage and safe administration to patients of such medication. Mr Pickett's misappropriation and use of opioids whilst at work was unethical and improper. The fact that Mr Pickett then practiced as a pharmacist whilst under the influence of opioids was also improper and unethical. It was a breach of the standards reasonably expected of a pharmacist. 2. Although the cannabis and equipment to administer were found in Mr Pickett's motor vehicle by NSW Police after he ceased working at the pharmacies and after his registration was suspended as a pharmacist, we are satisfied that this conduct was also improper and unethical. 3. Cannabis is a prohibited drug in NSW. As submitted by the Commission it was not appropriate for Mr Pickett to be in possession of a prohibited drug. It goes to the very heart of a pharmacist's professional and ethical obligations in relation to safe and lawful dispensing of medications. Mr Pickett's conduct had the potential to bring the profession of pharmacy into disrepute and undermine the confidence the public holds in relation to the practice of pharmacy. It was improper and unethical for Mr Pickett to obtain and possess an illicit substance because it represents a significant departure from the standards to be expected of pharmacists. 4. Mr Pickett's improper conduct is compounded by the fact that at the time he was found to be in possession of cannabis his registration as a pharmacist had been suspended. Further, the criminal charges which were pending against him, including the misappropriation of drugs of addiction from the pharmacies where he previously worked, where yet to be determined in the Local Court. 5. We are satisfied that the complaint of unsatisfactory professional conduct as detailed on the basis of improper or unethical conduct relating to the practice or purported practice of pharmacy in the first complaint is proved. Professional Misconduct 1. The second complaint alleges "professional misconduct" under section 139E of the National Law. The Commission submits that the conduct of Mr Pickett, which we have found constitutes unsatisfactory professional conduct, when considered either individually or cumulatively is of a sufficiently serious nature to amount to professional misconduct. 2. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: see HCCC v Saedlounia [2013] NSWMT 13 at paragraphs 43-50 and Health Care Complaints Commission v Do [2014] NSWCA 307 at paragraph 35. 3. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation": see paragraph 19. 4. The protective objects of the National Law inform the Tribunal's evaluative task as to whether the conduct amounts professional misconduct. In Health Care Complaints Commission v Do Meagher JA, with whom Basten and Emmett JJA agreed, stated at 35: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. In our view when the complaints are considered individually and together there has been a significant departure from the standard of conduct to be expected of a pharmacist. 2. The use of drugs of addiction and the misappropriation of drugs of addiction from an employer is conduct which of its nature has the potential to undermine public confidence in the profession of pharmacy. The public are entitled to expect that whilst practicing, pharmacists are not affected by or unlawfully using drugs of addiction. Moreover Mr Pickett's conduct in falsifying records at his place of employment further diminished the trust which the public should be entitled to hold in in the profession. 3. We find that the unsatisfactory professional conduct displayed by Mr Pickett is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. 4. We are satisfied that the complaint of professional misconduct as detailed in the second complaint is proved. Impairment 1. There is no evidence before us to show that the recommendations and conclusions reached by Dr Raggatt in his November 2016 report are no longer relevant. Dr Raggatt's oral evidence was to the effect that unless Mr Pickett had followed the recommendations outlined in his report he remained at risk of relapse. He concluded that Mr Pickett remained impaired due to opioid dependence. 2. Mr Pickett has not presented any meaningful evidence in this regard. His own evidence suggests that his engagement with mental health practitioners has been limited, sporadic and not at the level as recommended in the report by Dr Raggatt. These recommendations included that Mr Pickett should undergo regular treatment from a drug and alcohol specialist service, regular urine drug screens, initially twice weekly, and ongoing psychological counselling with Mr Smith. Apart from Mr Pickett's recent engagement with Mr Morrison for the purpose of psychological counselling after a two year hiatus, he has not pointed to any meaningful evidence that he has actually followed through on Dr Raggatt's recommendations. 3. Apart from Mr Pickett's own contention there is no evidence before us as to his current recovery or remission from opioid or drug addiction. Mr Pickett was not assisted in this regard by his failure to attend a further assessment by Dr Raggatt scheduled for him by the Commission. 4. There is no evidence of Mr Pickett's attendance at and regular treatment from a drug and alcohol specialist service. There is no objective evidence that he has developed coping strategies to maintain abstinence in the long term. 5. The evidence of urine drug screening tests is limited to those that were done on 8 November 2016, 2 February 2017 and 8 March 2017. We note that the urine analysis on 2 February 2017 recommended further testing for benzodiazepines. Although Mr Pickett contends that he continues to abstain from illicit substances he has not provided any recent objective evidence of regular and ongoing testing to prove this assertion. 6. There is some evidence before us as to past instances of relapse by Mr Pickett. His evidence was to the effect that during a trip to Japan he ceased using opioids but on returning home he resumed his use. Further after his registration as a pharmacist was suspended, he was found with cannabis and other misappropriated prescribed medications. He admitted using these medications and cannabis to help him get off opioids and deal with the withdrawal symptoms. In our view this demonstrates Mr Pickett's willingness to self-medicate rather than seek professional help. 7. The evidence provided by Mr Morrison is to the effect that Mr Pickett continues to suffer from clinical depression and severe anxiety. In our view this is a relevant matter which adds to the potential for future relapse. This is because the evidence before us points to Mr Pickett's use of opioids in order to deal with stress and to alter his mood. It adds further significance to the view expressed by Dr Raggatt as to Mr Pickett's risk of relapse. 8. In the light of all the evidence, and in the absence of any evidence that Mr Pickett has comprehensively and objectively dealt with his past drug addiction and dependency issues, in our view his risk of relapse is significant and ongoing. We find that Mr Pickett suffers impairment, specifically opioid dependence. Competence 1. As submitted by the Commission we accept that the evidence before us indicates that Mr Pickett has shown significant reluctance to seek appropriate health care and intervention in relation to his opioid dependence and mental health issues. 2. Although Mr Pickett presented as genuinely remorseful for his actions, in our view his reluctance to seek out and commit to a structured and professional treatment program as outlined in Dr Raggatt's report demonstrates that he lacks insight into what he actually needs to do to address his impairment. 3. In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at 156, Sackville AJA, with whom Giles and Young JJA agreed, held: There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practice medicine, and a finding of lack of competence to practice medicine based on a want of sufficient mental capacity to practice medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practice medicine. 1. We have found that Mr Pickett is impaired. Combined with his lack of insight and unwillingness to engage in a meaningful treatment program we do not believe he is presently competent to practise as a pharmacist. We are satisfied that Mr Pickett's lack of competence is a continuing one and detrimentally affects his capacity to practise as a pharmacist. Protective orders sought by the parties 1. The Commission submits that given the gravity of the conduct, the appropriate order for the Tribunal to make is cancellation of Mr Pickett's registration with a non-review period of two to three years. It also seeks an order for costs. 2. The Commission submits that it would be in the public interest for the Tribunal to impose a non-review period of two to three years to enable Mr Pickett to reflect on his prior conduct and to be in a position to demonstrate fitness, reformation of character and insight in any future re-registration application. 3. For his part Mr Pickett submits that the Tribunal could allow him to practice but impose a range of conditions on his registration. These would include supervision, limits on his ability to dispense schedule 8 and 4D medications for a specified period, regular drug screening, counselling sessions, psychiatric treatment, attendance at drug and alcohol group sessions and regular progress reports. If his registration were to be cancelled, he seeks a period of 6-12 months to undertake the steps he outlined in his submissions. As we understood his position he was willing to undertake the steps outlined by Dr Raggatt. Principles regarding protective orders 1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see sections 149A, 149B and 149C of the National Law. 2. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at 34. 3. In addition to the protection of the public being the paramount consideration, it has also been held that other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: see, for example, Health Care Complaints Commission v Litchfield [1997] 41 NSWLR 630 at 637. 4. In Health Care Complaints Commission v Do [2014] NSWCA 307 Justice Meagher, with whom Justices Basten and Emmett agreed, referred at 35 to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows: 5. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 6. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards. Consideration of protective orders 1. We accept the submissions made by the Commission that Mr Pickett has given conflicting statements to various authorities including NSW Police and the Council about his previous drug dependency. At times he has minimised his conduct, remained inappropriately focused on the fact that no actual harm came to patients while he was working under the influence of drugs as a pharmacist and showed limited insight into the need for ongoing treatment to ensure that he has no future relapse. 2. Mr Pickett has not engaged in any sustained recent appropriate and ongoing treatment for his mental health. The evidence suggests that he has relapsed in the past under pressure as demonstrated by his relapse after his trip to Japan and his use of cannabis and other medication to alleviate his withdrawal symptoms after he was suspended from practice. 3. Mr Pickett has failed to address his past issues in dealing with pressure, stress and conflict with others. Although Mr Pickett contends that he is drug free and accordingly poses no risk of future relapse, this is in contrast to the opinion of Dr Raggatt that he continues to be at risk of relapse. In the absence of some psychological evidence that deals with his level of insight into his past mental health and drug dependency issues including his ongoing risk of relapse, we cannot be confident that he is not at risk of relapse. 4. As was observed by the Tribunal in Health Care Complaints Commission v Orr [2015] NSWCATOD 124 at 126: An impairment comprising substance abuse, particularly opiate dependence, is a very serious issue for any professional, but much more so for health professionals who have both regular access to such drugs and the professional responsibility for their administration to patients. A drug addicted Pharmacist must be considered, by virtue of their daily professional life involving the constant exercise of care and skill in the management, recording and provision of drugs, to be at particular risk of relapse. 1. On the evidence before us we do not have any confidence that were Mr Pickett to be faced with pressure in the future whilst working as a pharmacist, he would abstain from abusing drugs of addiction and seek appropriate treatment for his mental health. 2. Mr Pickett will need a substantial period of abstinence supported by objective evidence. He will need psychological therapy to improve his stress management skills and reduce his risk of reverting to abusing illicit or non-prescribed drugs in the future. He will need to show that his anxiety and depression is well controlled. He would benefit from specific drug and alcohol counselling giving him prevention strategies that he will need to optimise his chances of life long abstinence. He will need to provide objective material that he has taken these steps. 3. We conclude that Mr Pickett should not be able to make any application for review of the cancellation of his registration for a period of 18 months. In our view given the gravity of the misconduct and the upholding of public confidence in the profession requires that his conduct in its entirety be denounced as unacceptable and that a period of eighteen months appropriately reflects that. 4. In addition this period will afford a reasonable opportunity for Mr Pickett to undertake the counselling and therapy work he says he is willing to do to address his drug dependence and impairment issue, but to which at this point time he has been reluctant to commit. Costs 1. The purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made: see Allplastics Engineering Ply Ltd v Dornoch Ltd [2006] NSWCA 33 at 34; Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at 22. Generally the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party: see Arian v Nguyen [2001] NSWCA 5 at 36. These principles were re-affirmed by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA. 342. 2. Although Mr Pickett made a number of admissions in relation to specific particulars there was nothing in how the Commission conducted its case which would warrant disallowance of costs or an offset to them. There is no evidence of some disentitling conduct on the part of the Commission. There are no features in this case which make it an appropriate one to exercise the discretion to depart from the general presumption. Mr Pickett should bear the Commission's costs so as to compensate it for the costs it has incurred in prosecuting the proceedings in the public interest. Accordingly for these reasons, Mr Pickett is to pay the Commission's costs, as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Orders 1. The complaints of unsatisfactory professional conduct and professional misconduct are proved. 2. The complaints of impairment and competence are proved. 3. The practitioner's registration as a pharmacist is cancelled. 4. The practitioner cannot make an application for review of the cancellation order (for a Reinstatement Order) until 18 months from the date of this decision 5. The Registrar is requested to notify the Pharmacy Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1, 2, 3 and 4 above as soon as practicable. 6. The Practitioner is to pay the costs of Health Care Complaints Commission incurred and incidental to these proceedings as agreed and failing agreement as assessed under the Legal Professi on Uniform Law Application Act 2014 (NSW). ********** 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: 15 April 2019