Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Girgis (née Tanios) v Health Care Complaints Commission [2019] NSWCATOD 126 Hearing dates: 24 and 25 June 2019 Date of orders: 23 August 2019 Decision date: 23 August 2019 Jurisdiction: Occupational Division Before: S McIllhatton, Senior Member M Cross, Senior Member J Zwart, Senior Member Dr C Berglund, General Member Decision: (1) Under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) a reinstatement order is made. (2) Under s 163B(4) of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on the applicant's registration for a period of 12 months or, at the expiry of that 12 months, for any such longer period as determined by the Pharmacy Council of NSW (the Council): (3) Ms Girgis must nominate a registered experienced pharmacist who is unrelated to her to act as her professional mentor for approval by the Council. (4) The mentoring relationship is to continue for a minimum period of 12 months from the date of the Councils approval or appointment of the mentor, with the Council to determine if an additional period of mentoring is appropriate. (5) The applicant is to authorise the mentor to report to the Council if there is any concern about her professional conduct or personal well-being. (6) The applicant is to authorise the mentor to report to the Council about her professional conduct and personal well-being at the conclusion of the 12 month period of the mentor relationship. (7) The applicant is to meet all costs associated with the mentoring conditions. (8) As soon as practicable after the mentor is appointed by the Council, the applicant must provide the mentor with a copy of the decision made by the New South Wales Civil and Administrative Tribunal which cancelled her registration (Heath Care Complaints Commission v Marianne Tanios [2017] NSWCATOD 94 (the NCAT complaint decision) and a copy of this decision (the NCAT review decision). (9) The applicant must not work as a pharmacist in charge for a period of 12 months from the date of this order or for any further specified period determined by the Council. (10) The applicant must not work as the sole pharmacist on duty for a period of 12 months from the date of this order or for any further specified period determined by the Council. (11) As soon as practicable on commencing employment with any pharmacy, the applicant must inform the Council of the name or names of any and all the pharmacies she is employed in. (12) The applicant must provide any pharmacy in which she obtains employment within the next 12 months with a copy of the decision made by the New South Wales Civil and Administrative Tribunal which cancelled her registration (Heath Care Complaints Commission v Marianne Tanios [2017] NSWCATOD 94 (the NCAT complaint decision) and a copy of this decision (the NCAT review decision). (13) The Council is the appropriate review body for these conditions Catchwords: TRADES AND PROFESSIONS – Pharmacy – application for reinstatement Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Ameison v Medical Council of NSW [2015] NSWCATOD 49 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Health Care Complaints Commission v Tanios [2017] NSWCATOD 94 In re Jason Martin [2010] NSWMT 13 Scully v Health Care Complaints Commission [2013] NSWMT 7 Shah v Health Care Complaints Commission [2014] NSWCATOD 94 Vigours v Medical Council of NSW [2019] NSWCATOD 75 Category: Principal judgment Parties: Marianne Girgis (nee Tanios) (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: S Maybury (Applicant) D New (Respondent) Solicitors: Meridian Lawyers (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2019/00031637 REASONS FOR DECISION S MCILLHATTON Senior Member M CROSS Senior Member Dr C BERGLUND General Member Introduction 1. On 20 June 2017 in proceedings brought by the Health Care Complaints Commission (the Commission), the NSW Civil and Administrative Tribunal found that the conduct of Marianne Tanios constituted unsatisfactory professional conduct and professional misconduct. It cancelled her registration as a pharmacist and set a non-review period of 12 months. It also ordered that she not perform any work as a pharmacy assistant: see Health Care Complaints Commission v Tanios [2017] NSWCATOD 94. 2. Ms Tanios married in 2016 and reflecting her preference we have addressed her in this decision as Ms Girgis. 3. As the non-review period has elapsed Ms Girgis is entitled to and seeks a review of the cancellation order: see s 163 A(1)(b) of the Health Practitioner Regulation National Law (NSW), the National Law. Ms Girgis seeks a reinstatement order, without which she is unable to obtain re-registration from the National Board: see s163B(1)(c) and 163B(3) of the National Law. 4. The Commission is entitled to appear in these proceedings: see 163C(4) of the National Law. The Commission responded to the application in its role as public interest contradictor. It adopted a neutral position but indicated that if the Tribunal was minded to grant the application it invited the Tribunal to consider imposing a range of conditions on Ms Girgis's registration. These conditions and why they were proposed are addressed later in this decision. 5. Senior Member Zwart disagrees with the decision to which we have come. Under Section 57 (1) of the Civil and Administrative Tribunal Act 2013 where there is a division of opinion, the opinion of the majority is taken to be the decision of the Tribunal. We have had the benefit of reading the opinion of Senior Member Zwart in draft and respectfully it has not caused us to change our assessment of the evidence before the Tribunal, the conclusions we have reached about that evidence or our decision. The Tribunal's 2017 decision to cancel registration 1. The facts underpinning the Tribunal's findings of unsatisfactory professional conduct and professional misconduct against Ms Girgis were that from October 2013 to August 2014 she dispensed medication to a relative and to herself without a valid prescription. Further, she had created false entries in the names of others in the dispensing system of the pharmacy where she worked to conceal the medication she had dispensed. 2. Ms Girgis attended the Tribunal hearing and made full admissions. In its decision the Tribunal noted that she admitted all the facts alleged against her in the Complaint. 3. Amongst the medications Ms Girgis dispensed to herself were Duromine, Diazepam and Modavigil. The Tribunal recorded in its decision that the combination of Duromine and Modavigil would cause hyper alertness, mind racing and agitation which would impact upon the ability of a pharmacist to operate in a professional and responsible manner. The evidence demonstrated that her work colleagues had observed her to show signs of agitation. The Tribunal found that the combination of the medications Ms Girgis was taking may cause confusion, sedation and affect cognitive function. It found that this would seriously impede a practitioner and expose the public to serious risk. 4. The Tribunal found that Ms Girgis's dispensing of medication to herself; and the creation of false entries in the dispensing system for Duromine on 25 occasions constituted conduct which was unacceptable to the profession and which would draw strong criticism by pharmacists in the profession. 5. It found that the creation of false entries in the names of others was unprofessional and contravened the requirements of the Poisons and Therapeutic Goods Regulation 2008 (NSW). False entries into the system constituted serious breaches of the Code of Conduct for registered health practitioners. It reasoned that accurate and complete health records in a pharmacy are fundamental to its practice. The false nomination of a medical practitioner as the prescribing doctor would be misleading to other pharmacists. Further, corrupt records have the potential to create serious health risks. For example if a person is admitted to hospital and it is necessary for the hospital to enquire as to what medication they take. 6. The decision referred to the general thrust of Ms Girgis's submissions being to explain her conduct by reference to her family situation, especially the relationship with her father, which resulted in the issue of the Apprehended Domestic Violence Order on 11 April 2013. Another contributing factor was an illness which resulted in the need to seek hospital treatment. Since Ms Girgis was about 12 years old she had suffered Polycystic Ovarian Syndrome (POS). One of the manifestations of the syndrome was lethargy. In addition, she suffered from avascular necrosis of the hips which caused her pain and resulted in her having to undergo a double hip replacement. The Tribunal referred to subsequent medical evidence which indicated that Ms Girgis had made a good recovery following hip replacements on both sides and was managing without the need for medication. 7. The Tribunal found the evidence brought before it relating to Ms Girgis's explanation for her conduct, to be troubling. The Tribunal acknowledged that her early childhood and upbringing were constrained because of cultural and family issues. But the Tribunal found that apart from the domestic violence issues and stress, Ms Girgis had no real explanation for her conduct. The Tribunal accepted the difficult period which she experienced whilst living at home and accepted her medical issues. However, it found that there was simply no evidence which provided any reason for her to have engaged in the conduct. The conduct was deliberate, calculated and knowingly contrary to the law. There was no suggestion, for example, that any psychiatric cause existed which would have led to her engaging in the proscribed conduct. 8. We note that the medications which formed the subject of the Complaint and dispensed by Ms Girgis to herself were Schedule 4 and 4D drugs. The Complaint did not refer to Schedule 8 drugs. 9. A drug of addiction, commonly referred to as a "Schedule 8 drug", is any drug listed in Schedule 8 of the Poisons List as proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW). A "prescribed restricted substance", commonly referred to as a "Schedule 4D drug", is any substance listed in Appendix D of the Poisons and Therapeutic Goods Regulation. The prescribing and dispensing of Schedule 4 and 8 drugs is heavily regulated. Ms Girgis: personal and professional background 1. Ms Girgis was born in December 1986. She initially obtained provisional registration as a pharmacist in July 2010 and general registration was recorded in July 2011. Accordingly at the time of the misconduct in October 2013 through to August 2014, she was a relatively young practitioner. 2. Ms Girgis was dismissed from her employment in August 2014 when her misappropriation of medications was detected. She found other employment in a rural area for about 10 months. In 2016 she found work as a pharmacist just outside of Sydney and in August of that year worked at a pharmacy owned by her husband and brother-in-law until June 2017 when her registration was cancelled by the Tribunal. During this period of time there were no reports of unsatisfactory conduct or inappropriate behaviour in her practice as a pharmacist. 3. Ms Girgis married in September 2016 and gave birth to her first child in February 2019. Evidence in support of the application 1. Ms Girgis provided a written statement dated 10 May 2019 in which she addressed and analysed her wrongdoing, as well as outlining the personal and professional development she has undertaken in the intervening period. 2. In relation to professional development she provided a Continuing Professional Development (CPD) summary record generated through the Pharmaceutical Society of Australia's website setting out the short courses she had undertaken for the period October 2017 to September 2018, together with an additional table prepared by her setting out articles she has read from January 2018 to June 2019 toward continuing professional development. 3. Ms Girgis has completed the Pharmaceutical Society of Australia Ethics and Dispensing in Pharmacy Practice course. As proof she provided a statement of completion and statement of attainment issued on 28 August 2018 setting out all four of the course components completed. 4. Ms Girgis provided character references from her parish priest, Father Jacob Magdy; her general practitioner, Dr Adel Magdy and a former pharmacist colleague, Sizar Yousif. Father Magdy referred to her voluntary work within the community, and the support network she has available to assist her. He referenced her personal growth. Dr Magdy recorded that he was initially concerned with how she would cope with what he referred to as 'the suspension" but that she had turned her life around. He referenced her remorse and his confidence that she would strive to uphold the highest standards of her profession. Ms Yousif became acquainted with Ms Girgis for several months in 2016 and again in 2017 for several months when they worked at the same pharmacy. Ms Yousif referred to Ms Girgis's dedication and work ethic, and the understanding she showed to customers and co-workers. She believed she could practise as a pharmacist and would be an asset to the community. 5. A report of Julie McKay, psychologist at Willow Bridge Counselling, dated 1 May 2019 together with previous reports written by Ms McKay dated 25 October 2016, 15 February 2017 and 30 August 2018 were also available. 6. Both Ms Girgis and Ms McKay gave oral evidence and were cross-examined. 7. Ms Girgis gave evidence that in July 2017 she had successful surgical intervention to address Polycystic Ovarian Syndrome, and no longer experienced pain or discomfort. In relation to her hip replacements she said she had no ongoing difficulties. She completed physiotherapy, had been reviewed by her surgeon twice and no further reviews were scheduled. She takes no medication, and follows her physiotherapist's advice with a low level exercise regime. She described herself as fit and well. She gave evidence about her family life and the work she has done with her counsellor. She spoke about the professional development courses she has completed under the auspices of the Pharmaceutical Society of Australia. She answered a number of hypothetical questions posed by the Tribunal as to how she would deal with challenging situations that could arise in day to day practice. 8. During the period of her cancellation Ms Girgis has undertaken some work for her husband attending to the payment of accounts and marketing. She has not worked in the pharmacy store. 9. Ms Girgis indicated that if she is permitted to return to practice she could work in her husband's pharmacy as it was ready source of employment. This would also enable him to have some time off. She indicated that generally there was only one pharmacist on duty at her husband's pharmacy, but she would comply with any conditions imposed and if required she would look for work elsewhere. 10. Ms McKay gave evidence about the interventions she has been working on with Ms Girgis in her management of her mental well-being, resilience and in expanding her range of coping mechanisms. Ms McKay considered it unlikely that Ms Girgis would engage in misconduct in the future. She accepted without hesitation that this view was expressed in the context of her role as a treating practitioner and she was not qualified to give a forensic assessment. The position of the Commission to the Application 1. As previously indicated the Commission adopted a neutral stance to the application. In its role as public interest contradictor the Commission's Counsel through cross examination elicited further information from both Ms Girgis and Ms McKay. Submissions were made about the evidence and the relevant principles to be applied. 2. In addition the Commission canvassed the type of conditions which it contended addressed an appropriate level of protection for the public if the application for re-instatement was to be granted. These included that Ms Girgis have a mentor for at least 12 months, that she not work as a pharmacist in charge or the sole pharmacist on duty; and to inform the Pharmacy Council (the Council) of the names of all pharmacies in which she is employed. 3. On behalf of Ms Girgis it was submitted that she would comply with any conditions the Tribunal sought fit to impose. She welcomed mentoring. As to the conditions canvassed by the Commission, Mr Maybury observed that Ms Girgis may face some practical difficulty with conditions that prevented her from being the sole pharmacist on duty. He accepted that whilst she should not be a pharmacist in charge responsible for supervising other pharmacists, it may pose a significant practical hurdle in obtaining employment if she was not permitted to be a sole pharmacist at any time. We note that in her oral evidence Ms Girgis expressed the hope that she might work part time in her husband's pharmacy to alleviate the hours he was working. Relevant Principles in the Review of the Cancellation Order 1. The application made by Ms Girgis requires the Tribunal to conduct an inquiry into whether the previous protective orders remain appropriate: see s 163C(1) of the National Law. The application is not a re-hearing of the previous complaint, and the Tribunal is not to review the findings or orders made: see s 163C(2) of the National Law. 2. Having conducted an inquiry into the application for review, the Tribunal may, among other things: dismiss the application, make a reinstatement order, impose conditions on the person's registration, or make an order ending or shortening the period of prohibition or altering or removing conditions: see s 163B of the National Law. 3. Our inquiry is informed by the objectives and guiding principles of the National Law which are set out in s 3 and s 3A of the National Law. Relevantly this includes the following objects 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)). in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration (s 3A). and the following guiding principle restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (s 3(3)(c)). 1. The approach to be adopted in determining an application for a reinstatement order under the National Law has been considered in several decisions of NCAT and its predecessor Tribunals: see Vigours v Medical Council of NSW [2019] NSWCATOD 75, Ameison v Medical Council of NSW [2015] NSWCATOD 49, Shah v HCCC [2014] NSWCATOD 94, Scully v HCCC [2013] NSWMT 7 and In re Jason Martin [2010] NSWMT 13. The principles which feature across these cases in varying ways, and which were referred to by the parties in their submissions, can be distilled as follows: 1. The question is whether the applicant is a fit and proper person to be held out to the rest of the profession and to the whole of the community as a person worthy of their confidence 2. The onus lies on an applicant to demonstrate that they 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 3. Clear proof is required to establish that there has been a reformation of character. The applicant is in a more disadvantageous position than an original applicant. The applicant must in effect displace the decision for deregistration that has been made 4. The ultimate issue is whether the Tribunal can conclude on the basis of all the material that the applicant is now a fit and proper person to re-join the profession 5. It is not a question of what the applicant may have suffered in the past but rather what their worthiness and reliability for the future is, in particular whether the applicant will act in accordance with the high standards and responsibilities of the profession 6. In making an assessment of the applicant's worthiness and reliability for the future, the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register 7. It is not about punishment or further punishment of the applicant but the protection of the public 8. There is no public interest in denying forever the chance of redemption and rehabilitation to a former practitioner. 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. 1. Accordingly what we are concerned with is what has happened since the cancellation order to give us confidence that Ms Girgis is a suitable person to be registered to practice as a pharmacist bearing in mind the objects and principles of the National Law: see Vigours v Medical Council of NSW [2019] NSWCATOD 75 at 87. The appropriateness of the cancellation order now 1. Since the cancellation order Ms Girgis has completed the PSA Ethics and Dispensing in Pharmacy Practice Course. She has continued with CPD education notwithstanding that it has been somewhat more difficult for her to access certain types of CPD due to her status. We note that whether Ms Girgis has satisfied the CPD requirements to be registered is a matter for the professional registration body. 2. In our view Ms Girgis presented in her written and oral evidence to have taken the period of de-registration to reflect on her misconduct and the circumstances surrounding it. She gave clear and cogent answers to all questions put to her. She was not evasive. She dealt with the questions asked of her in a forthright manner. She did not seek to hide from responsibility for her actions. Indeed at both the Complaint hearing and throughout the Review proceedings she has accepted all the facts alleged against her. We accept her statements of regret and remorse as genuine. 3. We give weight to the fact that since early 2016 Ms Girgis has continued to engage in psychological counselling. Her engagement in therapy with Ms McKay has been consistent and persistent. It remains ongoing. Ms McKay gave evidence about improvements in Ms Girgis's mental health and coping ability. We accept that evidence. In her role as a treating practitioner Ms McKay considered it unlikely that Ms Girgis would engage in misconduct in the future. 4. Some weight can be given to the supportive character references from her parish priest and doctor. Both her priest and her doctor referenced her personal growth since the cancellation order. We found the reference from a former colleague to be of limited assistance. This is because it does not, and nor did it purport to, traverse any details as to Ms Girgis's conduct in the intervening period after the cancellation order was made that would assist in our assessment of her development of insight into her past misconduct. However we accept that Ms Girgis was well regarded by her work colleague who found her to be dedicated and considerate. 5. Ms Girgis has used her time out of the profession to refresh her knowledge of ethics and dispensing. In the context of her previous misconduct she accepts that she had this knowledge but failed to apply it. We give weight to her completion of the ethics course. In our view Ms Girgis's answers in oral evidence to questions posed to her by the Tribunal were thoughtful and reflected the professional standard to be expected of a pharmacist. In our view her completion of the ethics course and her oral evidence demonstrated that she was not confined to just the words or the idea of remorse and insight, but to the reality of it. 6. Since the misconduct Ms Girgis's family situation has changed. She reports that she is happy and supported by her husband and his family. Her physical health issues have been dealt with and she is well. The Tribunal set out medical evidence in its 2017 decision that at that time Ms Girgis had made a good recovery following hip replacements on both sides and was managing without the need for medication. Ms Girgis gave evidence that this remained the case. She has undertaken extensive psychological counselling. She continues with counselling because she finds it useful in improving herself. 7. We acknowledge that in its 2017 decision the Tribunal had regard to Ms Girgis family history and health issues and made the finding there was "no real explanation" for her misconduct. 8. However we accept that since the misconduct occurred there has been a significant shift in the totality of Ms Girgis circumstances which cannot be ignored. This includes her now supportive family situation, addressing her health issues and expanding her social supports. She has continued to avail herself of the help of mental health care professionals and has undertaken relevant professional development. In our view all these circumstances are setting her course in which she is committed to a future of ethical professional practice. 9. We are satisfied that the cancellation order is no longer appropriate. In our view the experience of disciplinary proceedings, the period of reflection and the work Ms Girgis has done on developing her own insight into the seriousness of her past unprofessional conduct means that the likelihood of any repetition is diminished significantly. 10. While we are satisfied that the conduct which was the subject of the 2017 decision is unlikely to reoccur, nonetheless given the paramountcy of the health and safety of the public we have decided to take a cautious approach. In our view a transitional period of one year in which Ms Girgis's return to practice is supported through conditions is sufficient to ensure the safety of the public. We will impose conditions on Ms Girgis's registration that were reflected in proposed conditions put before us by the Commission at the hearing. In broad terms these will include that Ms Girgis be mentored by another registered pharmacist and that she not work as the sole pharmacist or pharmacist-in-charge. 11. Ms Girgis indicated that she would comply with any conditions that were imposed. Although she did not disagree with the proposed conditions, it was submitted on her behalf that a condition that prevented her from working as the sole pharmacist could give rise to logistical barriers in her obtaining employment. On the available material we are unable to assess that contention. In any event, given the serious nature of the conduct which was found proven and to assist in her transition, we consider it prudent that she be subject to a restriction of this type, at least for a 12-month period. Costs 1. Both parties addressed the issue of costs. There was a degree of uniformity across their positions that the purpose of a costs order is compensatory not punitive and that the power to award costs can be flexibly applied having regard to the particular circumstances of the case. 2. On behalf of Ms Girgis it was submitted that if successful in her application for reinstatement no order should be made for costs and each party should bear their own costs. It was argued that she should not be compensated for her costs but neither should she have to compensate the Commission. 3. In its written submission the Commission sought its costs and referred to cases where a costs order had been made in the review hearing context. 4. In Donnelly v HCCC [2014] NSWCATOD 155 the Tribunal noted that the compensatory principle 'is not necessarily apposite to reinstatement cases': at [55]-[57] 5. A review of the case law in Donnelly led to the conclusion that the applicable costs principles are flexible and that 'the unfettered nature of the discretion is perhaps the primary principle: at [65]. In that matter, involving a successful application for reinstatement, the Tribunal declined to make a costs order on the basis that: In determining what to do about costs in this case, we note that neither the HCCC nor the successful applicant, Dr Donnelly, have done anything in the way they conducted their parts in these proceedings to warrant a reduction in any costs awarded in an order in their favour. We also note that Dr Donnelly had no choice but to make the application to NCAT that he did make if he wished to obtain reregistration as a psychologist. Similarly such an application generates a role as contradictor for the HCCC. To award costs to one of the participants against the other participant would be either to favour the compensatory principle over acknowledging the facts that costs are involved in acting as a contradictor or vice versa. We saw no basis for doing that in the circumstances of this case: at 66 1. The usual rule as to costs assumes that where an applicant succeeds it will have incurred costs because the respondent's conduct made it necessary for it to bring the proceedings. However, here the application for review flows as a consequence of proven misconduct of the practitioner. 2. Equally however if Ms Girgis wants to return to practice as a pharmacist she has to seek a review, and as the statutory contradictor the Commission has to respond to it. There was no disentitling conduct on the part of either Ms Girgis or the Commission as to how they presented their case. 3. The Commission's participation was helpful and promoted the public interest. It assisted in ensuring that all relevant information came out and was properly tested enabling us to be confident in our decision that a reinstatement order was appropriate and the public properly protected. 4. Given the outcome of these proceedings and the particular circumstances of the case we agree with the reasoning in Donnelly and make no order as to costs. Orders 1. Under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) a reinstatement order is made. 2. Under s 163B(4) of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on the applicant's registration for a period of 12 months or, at the expiry of that 12 months, for any such longer period as determined by the Pharmacy Council of NSW (the Council): 3. Ms Girgis must nominate a registered experienced pharmacist who is unrelated to her to act as her professional mentor for approval by the Council. 4. The mentoring relationship is to continue for a minimum period of 12 months from the date of the Councils approval or appointment of the mentor, with the Council to determine if an additional period of mentoring is appropriate. 5. The applicant is to authorise the mentor to report to the Council if there is any concern about her professional conduct or personal well-being. 6. The applicant is to authorise the mentor to report to the Council about her professional conduct and personal well-being at the conclusion of the 12 month period of the mentor relationship. 7. The applicant is to meet all costs associated with the mentoring conditions. 8. As soon as practicable after the mentor is appointed by the Council, the applicant must provide the mentor with a copy of the decision made by the New South Wales Civil and Administrative Tribunal which cancelled her registration (Heath Care Complaints Commission v Marianne Tanios [2017] NSWCATOD 94 (the NCAT complaint decision) and a copy of this decision (the NCAT review decision). 9. The applicant must not work as a pharmacist in charge for a period of 12 months from the date of this order or for any further specified period determined by the Council. 10. The applicant must not work as the sole pharmacist on duty for a period of 12 months from the date of this order or for any further specified period determined by the Council. 11. As soon as practicable on commencing employment with any pharmacy, the applicant must inform the Council of the name or names of any and all the pharmacies she is employed in. 12. The applicant must provide any pharmacy in which she obtains employment within the next 12 months with a copy of the decision made by the New South Wales Civil and Administrative Tribunal which cancelled her registration (Heath Care Complaints Commission v Marianne Tanios [2017] NSWCATOD 94 (the NCAT complaint decision) and a copy of this decision (the NCAT review decision). 13. The Council is the appropriate review body for these conditions J ZWART Senior Member 1. In this matter I differ in opinion from that of the majority of the Tribunal and accept that under Section 57 (1) of the Civil and Administrative Tribunal Act 2013 "the opinion of the majority is taken to be the decision of the Tribunal". 2. In the 20 June 2017 decision, the Tribunal stated that it had cause "to be concerned that apart from domestic violence issues and stress, the practitioner really has no real explanation for her conduct. The Tribunal accepts the difficult period which she experienced whilst living at home and accepts that she has had medical issues. However there is simply no evidence which provides any reason for her to have engaged in the conduct. The conduct was deliberate, calculated and knowingly contrary to the law". 3. For re-instatement, the onus is on the applicant to prove, on the balance of probabilities, "that there has been a genuine, complete and permanent reformation on her part: that the defect of character or attitude which led to her being adjudged not fit and proper no longer exists; and that if re-registered she will, in the future, conduct herself as an worthy member of the pharmacy profession". 4. It has been said that: The power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (Scully [48]) The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are offered a second chance (Scully [49]) 1. There has been reformation of character if the applicant can demonstrate that she can practise in accordance with expected professional standards, without posing a risk to the safety of the public or the confidence of the pharmacy profession. Background 1. The applicant's registration was cancelled on 20 June 2017. On 30 January 2019 she filed an application to renew her registration as a pharmacist. On 27 February 2019 she gave birth to her daughter. The Application was heard on 24 and 25 June 2019. It is now two years after the applicant's registration was cancelled. The lapse of time, in and of itself, does not demonstrate reformation. 2. In support of her application, the applicant provided a written statement, information about continuing professional development, references and a psychologist's report. Applicant's statement 1. The Applicant reflects on the impacts of the decision of 20 June 2017 in her written statement of 10 May 2019. Of concern is her reference to "being suspended" and "suspension" of her registration, rather than cancellation as is the case. She says that she recognises what she did was wrong and could be harmful to herself and the community, but now with support she is better equipped to cope. She has not provided evidence to prove that this reformation has taken place. CPD 1. The applicant provided details of continuing professional education that she has completed which included a four part course, Ethics and Dispensing in Pharmacy Practice provided by the Pharmaceutical Society of Australia. In evidence, the applicant advised that she commenced the course in 2016 prior to the hearing of the complaint against her. The course is in four parts, accredited for a total of 25 hours of Group 2 CPD and completed by the applicant after approximately 20 months in July or August 2018. A more timely completion of the course would demonstrate insight, interest in addressing shortcomings of practice and indicate that the applicant recognised the importance of completing such a course. 2. Evidence was provided that the applicant completed 41.5 CPD points in the year September 2018 to October 2019. The Tribunal in June 2017 described the applicant as "clearly highly intelligent, because of her academic record, and because of her academic achievements". Whilst the maintenance of pharmaceutical knowledge may be seen as commendable and is a requirement for ongoing registration, a lack of knowledge did not contribute to the cancellation of the applicant's registration. References 1. The applicant's registration was cancelled for conduct which involved dispensing prescription medications to herself and a close relative without a valid prescription; concealing these acts by creating false entries in the dispensing system in the name of her mother and misappropriation of a prescription medication, Duromine, without payment. Duromine, an appetite suppressant with stimulant properties, which the applicant admitted to self-administering without a prescription. 2. Record keeping is an integral and extremely important component of the activities of a pharmacist. The applicant provided three character references in support of her application. She is said to have completed voluntary work with children and feeding the poor people. None of the references provide evidence that the applicant, in the period since the cancellation order of 20 June 2017, has been placed in circumstances where her honesty and integrity has been tested in relation to correct record keeping and has demonstrated that she has undergone a complete and permanent reformation. 3. The applicant has completed some work for her husband, however no reference has been provided. Psychologist 1. The Applicant has been seeing Ms McKay, a psychologist, since 2016. The applicant sought assistance with personality traits, developing coping strategies to deal with stress and increasing her insight into her previous behaviour. Ms McKay admitted that she is not trained in forensic assessment and that it is beyond her level of competence to state whether the applicant would engage in misconduct in the future, although she believed it to be unlikely. The opinion of Ms McKay is based on self-reporting by the applicant rather than independent assessment so is of limited value in demonstrating reformation of character. Reasons for dismissal of application 1. It has been suggested by the fellow members of the current Tribunal that the applicant should be registered with conditions placed on her practice to prevent her working as a pharmacist in charge or as the only pharmacist on duty. 2. In a case where a pharmacist requires a mentor, for advice or support, then I would agree that a practitioner may be considered suitable for registration. 3. However in the case of the applicant, she was found to have deliberately falsified records and illegally provided medications without prescriptions. A condition that prevents the practitioner practicing alone, suggests that the pharmacist cannot be trusted to work without supervision for fear that they may reoffend. If such a condition is required, I say that the practitioner has not proven herself to have completely reformed and does not have the trust and confidence of the community to be registered as a pharmacist. 4. The practitioner's registration was cancelled because she engaged in a course of conduct which was deliberate, occurred on numerous occasions over a considerable period of time, some 10 months and was conduct which was unprofessional, dishonest, unethical and illegal. 5. I disagree that there is evidence before this Tribunal sufficient to prove that the applicant has, on a balance of probabilities, undergone a genuine, complete and permanent reformation of character. Certainly the applicant has demonstrated remorse and insight into her actions, but in the period since cancellation I do not agree that she has demonstrated that she is now a fit and proper person for registration. 6. That is not to say that Ms Girgis should never be registered as a pharmacist in the future, but simply that she has not met the requisite standard at this time and the application should be dismissed. ********** 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: 23 August 2019