Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166 Hearing dates: 3 October 2019 Date of orders: 30 October 2019 Decision date: 30 October 2019 Jurisdiction: Occupational Division Before: O Shub, Senior Member D North, Senior Member F Zirein, Senior Member M Maher, General Member Decision: (1) Pursuant to s 149C(1)(b) of the National Law, the Respondent's registration as a pharmacist is cancelled. (2) Pursuant to s 149C(7) of the National Law, the Respondent cannot seek a review of order (1) for a period of three years. (3) Pursuant to s 163 of the National Law, the Tribunal is the appropriate review body for any review of these orders. (4) The Respondent is ordered to pay the Applicant's costs. Catchwords: PROFESSIONS AND TRADES – pharmacist – illicit supply of Schedule 4D drugs – oversupply of prescribed drugs – filling prescriptions that were forged or fraudulent Legislation Cited: Health Practitioner Regulation National Law Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 Health Care Complaints Commission v Perroux [2011] NSWDC 99 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Spicer v New South Wales Medical Board & Ors (Court of Appeal (NSW), 19 February 1981, unrep) Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Jason Nguyen (Respondent) Representation: Counsel: I Chatterjee (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self Represented) File Number(s): 2019/00187508 Publication restriction: The names of all parties listed in the schedule attached to the Applicant's Complaint are suppressed. REASONS FOR DECISION 1. The Practitioner was first registered as a pharmacist on or around 2 February 2006. At all times relevant to the complaints, he was employed as the manager and pharmacist in charge of Carlton Day and Night Pharmacy ("the Pharmacy") owned by a family member ("Close Relative A"). The complaint arises out of an allegation that for the period 1 July 2015 to 21 November 2016, the Practitioner was unable to account for the following Schedule 4 and 4D drugs ("the S4D drugs") in circumstances where, as the Pharmacy Manager, he was responsible for the accurate recording and storage of all drugs. In addition, it was alleged that between around July 2015 and September 2016, the Respondent inappropriately supplied the S4D drugs to Person B, without prescriptions, where the drugs were supplied for purposes or in quantities that did not accord with the recognised therapeutic standard or as appropriate in the circumstances, contrary to clause 54 of the Poisons and Therapeutic Goods Regulation 2008 ("the PTG Reg"). 2. A complaint was brought to the Tribunal in terms of which the Commission complained that the Respondent, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of Pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of Pharmacy. Each of the particulars and each of the sub-particulars therein, of this Complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. PARTICULARS OF COMPLAINT ONE 1. For the period 1 July 2015 to 21 November 2016 the practitioner was unable to account for the following schedule 4 and 4D drugs ('the s4D drugs'): a) 375 proprietary packs of clonazepam 2mg (approximately 37500 tablets); b) 290 proprietary packs of oxazepam 30mg (approximately 7250 tablets); c) 357 proprietary packs of diazepam 5mg (approximately 17850 tablets); and d) 418 proprietary packs of zolpidem 10mg (approximately 5852 tablets) in circumstances where, as the Pharmacy Manager, he was responsible for the accurate recording and storage of all drugs. Supply without prescription 2. Between around July 2015 and September 2016 the practitioner inappropriately supplied the s4D drugs to Person B without prescriptions, in quantities up to those listed in particulars 1(a) — (d) above. 3. Between around July 2015 and September 2016 the practitioner inappropriately supplied the s4D drugs for purposes or in quantities that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 54 of the Poisons and Therapeutic Goods Regulation 2008 ('the PTG Reg'). 4. Between around July 2015 and September 2016 the practitioner inappropriately supplied the s4D drugs to Person B without authority to supply by wholesale. 5. Between around July 2015 and September 2016 the practitioner inappropriately supplied the s4D drugs to Person B in circumstances where: a) s4D drugs cause central nervous system depression; b) s4D drugs are dangerous in combination with alcohol or other sedative medications; c) s4D drugs are highly addictive and may lead to drug dependence; d) supply of s4D drugs without a valid prescription is likely to be associated with medication misadventure. 6. Between around July 2015 and September 2016 the practitioner supplied the s4D drugs to Person B in an unprofessional and inappropriate manner in circumstances where: a) the supply occurred outside a pharmacy setting; and b) occurred at Star City Casino in Sydney from the boot of the practitioner's car. 7. Between around July 2015 and September 2016 the practitioner inappropriately supplied the s4D drugs to Person B in circumstances where he knew or believed that those drugs would be distributed to members of the general public. 8. Between around July 2015 and September 2016 the practitioner failed to accurately record the supply of the s4D drugs contrary to clause 56(a) of the PTG Reg. Recording and supply of pseudoephedrine 8. Between around 1 April 2016 and 30 September 2016 the practitioner was unable to account for up to 344 proprietary packs of the schedule 3 drug, pseudoephedrine. 9. Between around 1 April 2016 and 30 September 2016 the practitioner failed to record the supply of pseudoephedrine, contrary to clauses 24 and 55 of the PTG Reg in circumstances where the Pharmacy was not using Project STOP®. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: iii. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of Pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or iv. engaged in improper or unethical conduct relating to the practice or purported practice of Pharmacy. Each of the particulars and each of the sub-particulars therein, of this Complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. PARTICULARS OF COMPLAINT TWO Patient C 1. Between around 12 July 2012 and 18 May 2016 the practitioner dispensed approximately 16250 tablets of Alprazolam (2mg) (a schedule 4D drug until 14 February 2014 and thereafter a schedule 8 drug) to Patient C: a. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to clauses 54 and 109 of the PTG Reg; b. for an inappropriate duration; c. at an inappropriate dosage and frequency; d. without proper regard to Patient C's history of drug dependence and drug seeking behaviour; e. without appropriate referral to specialist addiction services; f. without documenting conversations in relation to patient care with the prescriber. 2. On 12 June 2010, 3 July 2010 and between around 28 May 2015 and 9 June 2016 the practitioner dispensed approximately 322 tablets of the schedule 4 drug, Zolpidem Tartrate(10mg) to Patient C: a. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to section 54 of the PTG Reg; b. for an inappropriate duration; c. at an inappropriate dosage and frequency; d. without proper regard to Patient C's history of drug dependence and drug seeking behaviour; e. in an inappropriate combination with Patient C's other medications; f. without documenting conversations in relation to patient care with the prescriber. Patient D 3. Between around 18 December 2012 and 2 August 2016 the practitioner dispensed approximately 3250 tablets of Alprazolam (2mg) to Patient D: a. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to sections 54 and 109 of the PTG Regs; b. for an inappropriate duration; c. at an inappropriate dosage and frequency; d. without proper regard to Patient D's history of drug dependence and drug seeking behaviour; e. in an inappropriate combination with Patient D's other medications; f. without documenting conversations in relation to patient care with the prescriber. 4. Between around 2 June 2010 and 12 July 2011 the practitioner dispensed approximately 3250 tablets of the schedule 4D drug, Valium (2mg) to Patient D: a. without proper regard to Patient D's long term history of alprazolam use; b. without documenting conversations in relation to patient care with the prescribers. 5. On 19 November 2014 the practitioner dispensed approximately 50 tablets of the schedule 4D drug, Diazepam (5mg) to Patient D: a. without proper regard to Patient D's long term history of alprazolam use; b. without documenting conversations in relation to patient care with the prescribers. 6. Between June 2010 and September 2010 the practitioner inappropriately dispensed Alprazolam (2mg) to Patient D which was purportedly prescribed by Dr G on 21 occasions in circumstances where: a. the prescriptions on their face should have raised concerns about their validity including they were computer-generated, lacked prescriber and patient details and did not consistently have the quantity of the medication outlined in words and figures; and b. he failed to verify the validity of the prescriptions with the prescriber; or c. he failed to document that he had confirmed the validity of the prescriptions with the prescriber. Patient E 7. Between 4 June 2016 and 13 August 2016 the practitioner inappropriately dispensed 5 patches of the schedule 8 drug Durogesic (100mcg) to Patient E in circumstances where: a. the prescriptions were forgeries; and b. the practitioner should have known or suspected that the prescriptions were forgeries; and c. the practitioner failed to contact the prescribers to verify the validity of the prescriptions. Patient F 8. On 25 and 28 April 2015 the practitioner inappropriately dispensed 5 patches of Durogesic (100mcg) to Patient F in circumstances where: a. the frequency of dispensing did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 109 of the PTG Reg; b. the prescriptions were forgeries; and c. the practitioner should have known or suspected that the prescriptions were forgeries; and d. the practitioner failed to contact the prescribers to verify the validity of the prescriptions. COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii engaged in 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 PARTICULARS OF COMPLAINT THREE 1. Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively. ONUS 1. It is trite that the onus of proof rests with the Applicant, the Commission. In considering whether the onus has been discharged, the Tribunal must be comfortably satisfied that that onus has been discharged (Briginshaw v Briginshaw (1938) 60 CLR 336). 2. At pages 362 and 363, Dixon J held that: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based upon a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained." NATURE OF THE JURISDICTION 1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of pharmacy. 2. In Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201‑202, the High Court said: "Although it is sometimes referred to as the "penalty of disbarment", it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege." 1. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public, pursuant to s 3A of the National Law. APPLICANT'S OPENING 1. The Applicant tendered a bundle of documents containing 63 tabs. In addition, the Applicant provided the Tribunal with a copy of a document, Exhibit 1, dealing with the Gambling Treatment Clinic's attendances on the Respondent and Exhibit 2, a letter written by the Applicant to Dr Quang Pham dealing with various prescriptions which were the subject of the complaint relating to Complaint Two. With that, the Applicant closed its case. RESPONDENT'S OPENING 1. The Respondent opened his case having been advised by the Tribunal on how the case will proceed and what action the Respondent might seek to take in respect of the conduct of his case. The Respondent indicated that he would not be represented and having been informed of the difference between making a statement from the bar or giving evidence under oath, the Respondent agreed to give evidence under oath. 2. In the Respondent's opening address, he indicated that his evidence was as given at the s 150 hearing from the Pharmacy Board and confirmed that he admitted all the allegations made against him by the Applicant in its complaint. In essence, the evidence given by the Respondent and the defence which the Respondent proposed in answer to the Applicant's complaint was that at the times alleged in the complaint, the Respondent was working in the pharmacy owned by Close Relative A. He was there five and a half to six days a week and working very long hours. In the period leading up to the supply of the illicit drugs which the Respondent has admitted, the Respondent had been gambling significantly at the casino at Sydney and in the six months prior to commencing the illicit supply of drugs, he had lost $600,000.00. His evidence was, in relation to Complaint One, that he met a person in the casino whose name was Person B who was also gambling in the casino and who approached the Respondent to provide him with the drugs, the subject of the complaint. Person B had shown the Respondent his AHPRA registration as a pharmacist and had indicated that he was only working one day a week and that he too had been losing money. The Respondent suggested to the Tribunal that the basis on which he was providing the drugs to Person B was that he thought that as a pharmacist, it was simply a transfer of drugs from one pharmacy to another. However, in cross‑examination, he admitted that he knew that the drugs were being provided to Person B for illicit purposes and that they were being sold to the public by Person B. 3. The Respondent also told the Tribunal that he had received very little profit on the supply of the drugs and that essentially he was only rounding up to the nearest $5.00 from a wholesale price when selling them to Person B. 4. In respect of the patients who received medication on prescriptions, the Respondent was cross‑examined on the fact that the quantities supplied, the regularity of the prescriptions being presented and in certain instances, the validity of the prescriptions being presented by the patients, was outside the standard expected of a pharmacist. The Respondent sought to explain why he had been allowing the prescription of such large quantities of S4, S4D and S8 drugs to patients and in some instances, providing drugs based on prescriptions that were fraudulent or forged. The Respondent sought to explain that he had approached some of the doctors regarding their prescriptions, but in reliance on Exhibit 2 and the direct evidence that certain doctors who had allegedly prescribed the medication, denied that they had ever met the patient or prescribed that medication for that patient, the Respondent conceded that he should have done better. 5. In encapsulating the totality of the Respondent's defence, the Respondent asked the Tribunal to accept that he was living under extreme stress due to significant gambling losses, that he was operating in another world and that he regrets what he did, the damage that it has caused to his family and his children and the potential damage to the public. THE ISSUES 1. The central issue is whether the allegations made by the Applicant in Complaints One, Two and Three are all proven and whether the Respondent knowingly and intentionally supplied drugs in circumstances which were inappropriate in all the circumstances for a pharmacist of the experience and training of the Respondent . 2. The Applicant provided expert testimony from Miss Helen Benson. In light of the admissions by the Respondent on each of the Complaints and the particulars to the Complaints, it is not essential to analyse the expert witness' report in detail. The expert evidence is to the effect that the Respondent's conduct is significantly below the standard required and the expert was strongly critical of the Respondent's conduct in each and every respect. It is only in a few minor errors that the expert commented that the behaviour of the Respondent fell short of what could be expected of a pharmacist of the training and experience of the Respondent without stating that it invites her criticism. CLOSING SUBMISSIONS BY THE APPLICANT 1. In closing submissions, the Applicant pointed out that the Respondent had admitted all the allegations made against him. The Applicant asked the Tribunal to note that the regular supply of the drugs matched exactly the drugs and amounts that could not be accounted for by the Respondent and that it was unreasonable to accept any suggestion by the Respondent that he thought he was carrying out a transfer of drugs from one pharmacist to another, when in fact he admitted that he knew that the drugs were going to the public illicitly. 2. In respect of Complaint Two, the Applicant submitted that there is no evidence of the Respondent checking with the prescribers either in respect of those prescriptions where the quantities being provided to the patient were too large or in respect of those patients where the prescriptions were found to be forged or fraudulent. Despite the fact that the Respondent in evidence indicated that he had had conversations with the doctors and that he did not keep a record of it, the Applicant submitted that this should be rejected as in the instances of the forged prescriptions, the doctors had neither seen nor prescribed that medication for those patients. 3. The Applicant submitted that the conduct the subject of the proceedings is of a sufficiently serious nature to warrant the cancellation of the Respondent's registration. The conduct in respect of Complaint One occurred over a prolonged period of some 17 months and involved a flagrant breach of standards and the likely commission of criminal activity. 4. The conduct in respect of Complaint Two is serious and carried risks of causing serious injury or death to the relevant patients. 5. The particulars of both Complaints One and Two are almost uniformly assessed by the Applicant's expert, Miss Benson, as warranting strong criticism or as having fallen significantly below the standard required of a registered pharmacist. Complaints 1 and 2 1. The Tribunal can be reasonably satisfied that the particulars of the first and second Complaints have been established in light of the evidence and in accordance with the admissions made by the Respondent. 2. Section 139B(1)(l) of the National Law requires a determination by the Tribunal of whether the Respondent's conduct demonstrates improper or unethical conduct relating to the practice or purported practice of pharmacy and is therefore unsatisfactory professional conduct. 3. The National Law does not define the words "improper" and "unethical". Complaint 3 1. In determining whether a finding can be made of professional misconduct, the Tribunal must determine whether as outlined in Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18] "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration". 2. The Respondent's conduct was of such a nature that the unsatisfactory professional conduct displayed by him falls within the definition of "professional misconduct" pursuant to s 139E of the National Law. 3. Accordingly, on the above facts and in accordance with the Respondent's admissions, the Tribunal should find that the Respondent is guilty of professional misconduct pursuant to s 139E of the National Law. CLOSING SUBMISSIONS BY THE HCCC 1. The HCCC submitted that the seriousness of the activity in Complaint One, the quantity and risk to the public and reputation of the profession is something which must be had regard to by the Tribunal. It was submitted that in the light of admissions, there is no doubt that the activity occurred and is proven. The Applicant submitted that, on the Respondent's version, there is no basis for it being for minimal gain and the Respondent's version that he was making $2,000.00 per month while he was losing around $100,000.00 per month is illogical and unacceptable. 2. The clear evidence of the conduct by the Respondent with no cogent explanation for his conduct, which means either that he cannot explain or that there is no logic in his explanation, means that the Tribunal should reject the evidence of the Respondent. The Applicant submitted that the evidence about his being in a different world should be heard with caution as there is no evidence of a medical condition provided to the Tribunal other than his own reference to seeing his sister‑in‑law, a psychologist. 3. The Applicant submitted that the Tribunal cannot take any of that into account and allow him to be seen as a fit and proper person to be entrusted with access to drugs and to money which he clearly would have access to. The Applicant submitted that, taken alone, Complaint One is sufficient for cancelling his registration and taken in conjunction with Complaint Two, in complete disregard for his obligations as a pharmacist, even dispensing double the acceptable dose is serious. 4. The Applicant finally submitted that there is no proper rehabilitation plan or anything shown that he has taken steps to keep up with his professional training or knowledge and the Applicant therefore sought the orders set out below: 1. Pursuant to s 149C(1)(b) of the National Law, order that the Respondent's registration as a pharmacist is cancelled; and 2. Pursuant to s 149C(7) of the National Law, order that the Respondent cannot seek a review of order 1 for a period of three years; and 3. Pursuant to s 163 of the National Law, the Tribunal is the appropriate review body for any review of these orders. CLOSING SUBMISSIONS BY THE RESPONDENT 1. In closing, the Respondent repeated largely what he had said in his evidence, namely that he was operating in an environment of extreme stress, that this should be taken into account in consideration of his behaviour which he accepts fell short of what could be expected of him as a pharmacist. He also stated in his evidence that the financial benefit that he obtained from the transactions was low, although in cross‑examination he indicated that he would get about $2,000.00 for any transaction with Person B and that this came nowhere near the level of the losses that he had incurred in the casino. He also asked the Tribunal to take into account that he had banned himself from the casino and that he had been undergoing psychological treatment through the University of Sydney Gambling Treatment Clinic. 2. The Respondent submitted that he has technically grown, he has dealt with his gambling addiction and he is just trying to do the best he can for himself and show his children that they can get a second chance. He stated that he now realises that the drugs he supplied could have left other families damaged or people having died. DECISIONS AND REASONS 1. Having read the evidence contained in the exhibits provided to the Tribunal and having heard the evidence of the Respondent, the Tribunal is comfortably satisfied that the Respondent is guilty of professional misconduct and that the extent of his professional misconduct is such as to warrant the deregistration of the Respondent for a period of time. 2. In analysing the Respondent's position, the Tribunal is of the opinion that it must reject any explanation that the Respondent gave regarding his thought that he was transferring drugs between one pharmacy and another. It is clear from the evidence given by the Respondent that: 1. the transactions in respect of the drugs, were taking place in the carpark of the Star Casino; 2. the drugs were being dispensed from the boot of the Respondent's car; 3. payments were being made in cash, the Respondent can only have been aware, and he has admitted that he was aware, that the drugs were being illicitly sold into the public market. This admission and the fact that a registered pharmacist was knowingly and intentionally supplying drugs into the open market is of a serious nature and warrants deregistration. 1. In respect of the suggestion by the Respondent that he was not doing this for very much gain, the Tribunal is extremely doubtful that the evidence of gains being made by the Respondent are the only gains which were being made. The quantities of drugs being sold by the Respondent to Person B are so large and the rounding up of a $2.00 wholesale price to even the $5.00 which has been suggested by the Respondent, would be a significant gain. 2. The Tribunal tried to understand the financial aspects of the transaction by asking the Respondent to explain how he was only receiving a small amount of money for the supply of the drugs but the only explanation proffered by the Respondent was that he was not keeping a record and couldn't really remember. On any basis, the Respondent admitted that he had suffered such significant losses and, therefore, the Tribunal believes that there must have been a financial gain greater than that admitted to by the Respondent. 3. In respect of the patients to whom he provided drugs on prescriptions which were valid, the quantities provided to those patients were of such a size and with such a frequency, the Tribunal is satisfied that a pharmacist should have been discussing that with the prescribing doctors and that his failure to do so leaves him very far short of an acceptable level of pharmaceutical practice. 4. In respect of those patients to whom he provided drugs on forged or fraudulent prescriptions, the Respondent was unable to prove that he had conversations with the prescribing doctors and, in fact, the exhibits indicate that those doctors had never consulted with or prescribed those drugs to those patients. Accordingly, the Tribunal must accept that those conversations with those doctors did not take place. Also the fact that the prescriptions were handwritten should have alerted the Respondent to the fact that they may have been fraudulent. He should have made further investigation prior to dispensing the drugs. 5. As referred to above, the role of the Tribunal is disciplinary and protective and not punitive and accordingly, the Tribunal must consider current unfitness to practise rather than focusing on a determination of probable permanent unfitness in making a cancellation order as held in Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 at [102] and Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31. 6. In Spicer v New South Wales Medical Board & Ors (Court of Appeal (NSW), 19 February 1981, unrep), Hope JA, with whom Reynolds and Huntley JJA agreed, observed (at 5, 6): "In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner." 1. In Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA at paragraphs 20 to 21 considered the exercise of powers by Tribunals to make protective orders and concluded: "Essential to a proper assessment of a Tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters are explained by Basten JA in Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102: (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1 The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2 That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3 The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 1. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 1. Having regard to the approach which the Tribunal must adopt in deciding whether the Respondent is fit and proper to practise as a pharmacist, the Tribunal is of the view that the Respondent showed a lack of insight into providing S4D medicines without prescription, either knowing or when he ought to have known that they were being supplied illicitly into the community. At the hearing, he showed a total lack of understanding of the issue, was ready to blame others, even though he was the prime source of this distribution organisation, made excuses for his criminal activity, and in the Tribunal's opinion, has made only little attempt to change the cause (gambling) of his unacceptable behaviour and has not desisted entirely from his gambling. 2. In the Respondent's own evidence, he indicated that while he had banned himself from gambling at the casino, he was still at times gambling on poker machines or in a social environment. The least that the Tribunal would have expected is that he would have stopped gambling totally in order to change the nature and more particularly the risk of his behaviour. 3. The Respondent's behaviour was riskful, unethical, wilful and criminal and the Tribunal is not satisfied from the evidence provided to it, that there is not a current risk of the behaviour reoccurring. He acknowledges the serious impact on his family but shows little appreciation for the ramifications of his actions towards the public and to the profession. 4. The Tribunal also considered questions put to the Respondent by the Tribunal regarding his current knowledge of a pharmacist's obligations and requirements, and his responses to those questions. The Tribunal believes that the Respondent does not have the necessary standard of practice, knowledge and understanding to ensure the public's health and safety is protected. He has demonstrated a total lack of care, skill, knowledge and judgment expected by the public and his profession and has demonstrated his performance being significantly below the standard of a pharmacist of equivalent training and experience. In the time since the Complaint was made, the Respondent has demonstrated very little attempt to keep up with the CPD requirements of a registered pharmacist. ORDERS 1. In the circumstances, the Tribunal makes the following orders: 1. Pursuant to s 149C(1)(b) of the National Law, the Respondent's registration as a pharmacist is cancelled. 2. Pursuant to s 149C(7) of the National Law, the Respondent cannot seek a review of order (1) for a period of three years. 3. Pursuant to s 163 of the National Law, the Tribunal is the appropriate review body for any review of these orders. 4. The Respondent is ordered to pay the Applicant's costs. RECOMMENDATION TO RESPONDENT 1. While the Tribunal cannot make orders for the future conduct of the Respondent once deregistered, the Tribunal strongly recommends that before applying for re-registration the Respondent should at least: 1. Seek professional help on gambling rehabilitation and be in a position to demonstrate an extensive total gambling free period. 2. As far as possible, maintain membership of the Pharmaceutical Society of Australia. 3. Participate in continuing professional education. 4. Complete the Pharmaceutical Society of Australia Ethics and Dispensing in Pharmacy Practice course (a four part course). 5. Demonstrate that the Pharmaceutical Society has no objection to his being re-registered. ********** 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: 30 October 2019