Ahmad v Health Care Complaints Commission

Background

1. Mr Ahmad obtained registration as a pharmacist in 2000. After working at various pharmacies, in May 2002 he commenced at the Priceline Pharmacy in Bankstown (the Pharmacy) as Pharmacist in Charge. In March 2012, he was made a casual employee after new managers took over the Pharmacy. In June 2012 his position was made permanent.
2. In September 2012, the Pharmacy's new managers discovered a number of irregularities in the Pharmacy's dispensing records and terminated Mr Ahmad's employment. In 2013, following an investigation of the Pharmacy, the Pharmaceutical Services Unit of the NSW Department of Health made a complaint to the Pharmacy Council of NSW about Mr Ahmad. The Council referred that complaint to the Commission. The Commission in turn referred a complaint about Mr Ahmad to NCAT.
3. In September 2015, following a five-day hearing the Tribunal found Mr Ahmad: 1. supplied significant quantities of Sch 4, Sch 4D and Sch 8 drugs without prescriptions; 2. created false dispensing records in the Pharmacy's computing system in relation to these drugs; 3. created false records in the Sch 8 drug register (the DD Register); 4. failed to record prescriptions in the DD register; 5. failed to ensure an entry in the DD register was accurate; 6. failed to keep the key to the Sch 8 drug safe (the DD safe) secure; 7. was unable to account on 14 September 2012 for missing quantities of Sch 4, Sch 4D and Sch 8 medications in addition to those that were alleged to be falsely dispensed; 8. wilfully and deliberately engaged in a course of conduct whereby he abused his position as a pharmacist to defraud his employer.
4. In the original proceedings Mr Ahmad denied most of the particulars of the Complaint found proven by the Tribunal.
5. The Tribunal found the proven conduct amounted to unsatisfactory professional misconduct (s 139B of the National Law) and professional misconduct (s 139E of the National Law).

Mr Ahmad's evidence in support of the application

1. Referring to the conduct found proven by the Tribunal in the 2015 Decision, in a statement prepared in support of his application for reinstatement filed in April 2018, Mr Ahmad wrote that he "made some wrong clinical judgements" and that he had "learnt a lot from this". Mr Ahmad wrote that he was sorry for "the inconvenience" he had caused his previous employer and, if the Tribunal considered it would assist, he is willing to offer an "official apology". He assured the Tribunal that in the future he will comply with all relevant rules and regulations. Further he undertook to practice pharmacy in accordance with ethical standards.
2. The application for review was originally listed for hearing in April 2018 but was adjourned at the request of Mr Ahmad.
3. In a supplementary statement dated 6 September 2018, Mr Ahmad wrote that he acknowledged the mistakes and errors of judgement that led to the findings made by the Tribunal. He wrote that, having read the 2015 Decision several times, he had come to "fully accept and appreciate that I fell well below the standard of a pharmacist". In these proceedings he stated that he admitted each of the particulars of the Complaint the subject of the 2015 Decision, except particular 8 of Complaint 1: dispensing Oxycontin without a prescription on 15 July 2012.
4. Mr Ahmad wrote that at the hearing of the Complaint in 2015 he was unrepresented and was fearful of losing his registration. He stated that he was "weak and ashamed … and not brave enough to tell the truth". He gave an unreserved apology for being dishonest in that hearing.
5. "By way of explanation and not excuse", Mr Ahmad offered customer pressure as a reason for his misconduct. He explained that by 2012, he had been working in Bankstown for over a decade and had become friends with many customers of the Pharmacy. He asserted that there is an expectation within the "Bankstown community" (which he later explained meant people of Middle Eastern origin living in the Bankstown area) that friends will "honour" favours requested of each other. He claimed that if a friend refused to honour a requested favour not only would that damage the subject friendship but word would spread throughout the community that the person is not to be trusted. He said many customers asked him to dispense prescription medication without a prescription as they found it difficult to find the time to attend a GP to obtain a prescription. In addition, he claimed male customers were sometimes reluctant to consult their GP about personal matters such as erectile dysfunction.
6. Mr Ahmad wrote that he was now confident that if he were again asked to dispense prescription medication without a prescription he would refuse. He pointed to the efforts he has made to familiarise himself with the regulations governing the supply of prescription medication and the counselling he had recently undertaken to assist him to develop strategies to refuse requests for favours. He wrote that he now understands that the best way to help and ensure the safety of the community is to apply and follow the "proper principles".
7. Mr Ahmad wrote that having been immensely proud of being a pharmacist he now felt a great sense of shame and wanted the opportunity to redeem himself. He wrote that the Tribunal can be satisfied that the misconduct will never be repeated because of how it has personally affected him and his family. He wrote that one of the worst things he has ever experienced is trying to give advice to his children and having them "throw back his mistakes in his face".
8. Mr Ahmad concluded his supplementary statement by writing that he could "not regret his actions more … they have affected every part of my life". He wrote that he is confident that he now knows to say, "No" to people if asked to act unethically. He wrote that having "been through hell", he would not do anything which might return him to his current position.

Employment: post-2015 Decision

1. After his employment with the Pharmacy was terminated, Mr Ahmad worked as pharmacist in charge at a pharmacy in country NSW until his registration was cancelled in 2015. In addition, during this period he worked as a locum pharmacist.
2. After the cancellation of his registration, Mr Ahmad commenced part-time employment as a marketing officer for ISRA Medical Services, a provider of after-hours medical services. He wrote that he enjoys helping people and continuing to be involved in the health sector. He wrote that he holds a trusted position with ISRA, meeting regularly with hospital managers to discuss complaints and issue about ISRA's services.
3. In late July 2018, Mr Ahmad commenced work, on a part-time basis, as a practice manager of a rehabilitation centre operated by ISRA. He has continued in his role with ISRA's after-hours medical service.

Professional development: post-2015 Decision

1. Mr Ahmad wrote that after the cancellation of his registration in 2015 his "immediate thought" was the magnitude of his mistakes and how he could demonstrate that he deserved a second chance. To that end, in June 2017 he enrolled in "Ethics and Dispensing practice" an online course offered by the Pharmaceutical Society of Australia (PSA). The course covers, among other things, pharmacy legalisation, ethics and practice. He stated that the knowledge he gained from the course reinforced the serious nature of his mistakes. In addition, he claimed that he now appreciates that to maintain the trust and confidence of patients, pharmacists must act honestly and with integrity.
2. Material relating to Mr Ahmad's participation in the PSA course tendered by the Commission reveals that while Mr Ahmad attained a certificate of completion, his assessment results were uneven. For example, Mr Ahmad made nine unsuccessful attempts to complete one of three assignments in the unit "legislation and pharmacy practice". In these proceedings he offered a number of explanations for these poor results including working long hours and probably completing the course at midnight.
3. In addition to the Ethics and Dispensing practice course, Mr Ahmad has undertaken numerous short courses offered by the PSA and the Pharmacy Guild of NSW and read widely on a range of topics relevant to the practice of pharmacy. The Pharmacy Board of Australia, a Board established by s 31(1) of the National Law to, among other things, decide the requirements for registration of pharmacists, requires pharmacists to undertake continuing professional development (CPD), specifically, to undertake 40 CPD credits per year. In the two years to 31 December 2017, Mr Ahmad exceeded this requirement obtaining 244 CPD credits. In the year to 30 September 2018 he obtained 33 CPD credits.

Expert opinion

1. Mr Ahmad tendered a report prepared at the request of his solicitors by clinical psychologist, Hana Dover. Mr Ahmad was referred to Ms Dover by his GP to assist him to deal with the distress he was experiencing with the pending review hearing. He consulted Ms Dover on five occasions in May 2018. In his supplementary statement Mr Ahmad wrote that he had attended counselling with Ms Dover to gain a better understanding of the reasons for his misconduct and why he had failed to address that misconduct satisfactorily in the 2015 proceedings. In cross-examination Mr Ahmad agreed with the proposition that the reason he went to see Ms Dover was because his lawyers had informed him that it was necessary to "know the reason for his misconduct".
2. In her report Ms Dover set out the history given by Mr Ahmad. She recorded that he reported that following the change in management of the Pharmacy in 2012, he perceived his position with the Pharmacy to be insecure. As Mr Ahmad was the sole breadwinner in the family this caused him considerable distress. She wrote that Mr Ahmad reported that the many Arabic-speaking customers of the Pharmacy made increasing demands for favours from Mr Ahmad. Mr Ahmad speaks Arabic.
3. Ms Dover recorded that Mr Ahmad reported finding the experience of representing himself in the original proceedings to be extremely stressful and in hindsight he acknowledged that he had acted in a way that appeared to be dishonest and unapologetic. Mr Ahmad reported coming from a "high achieving family" and described his defensiveness in the 2015 Tribunal hearing as a "coping mechanism". According to Ms Dover, Mr Ahmad told her that the findings made by the Tribunal about his conduct were deserved.
4. Ms Dover concluded that there is a very low risk that the conduct that led to the cancellation of Mr Ahmad's registration would be repeated. In her opinion, he has a good level of insight into his previous misconduct. His defensiveness, in Ms Dover's view, has been addressed in therapy sessions, which involved working through and accepting responsibility for his misconduct. In her view, Mr Ahmad's expression of remorse is genuine and he accepts that his misconduct represented a significant departure from acceptable standards and merited a significant sanction.
5. Ms Dover recommended that if Mr Ahmad's registration was to be reinstated, a suite of conditions be imposed on his registration to lower the risk of any potential misconduct, including that he be required to practise under supervision and receive ongoing psychological support.
6. In oral evidence, Ms Dover stated that in her opinion it was significant that Mr Ahmad was able to acknowledge to her, a young woman from the same ethnic background (Middle Eastern) the extent of his wrongdoings and the shame he experienced. She reasoned that given her gender and the difference in their ages it required great effort on Mr Ahmad's part to admit his misconduct.
7. In cross-examination Ms Dover stood by her opinion that Mr Ahmad had insight and was genuinely contrite. She stated that while in the initial consultation Mr Ahmad was defensive, he did not deny or attempt to minimise his misconduct. She said that over the course of the therapy sessions, his defensiveness dramatically reduced and he gained "renewed insight" into his conduct. In her opinion, self-referral to a psychologist was an indicator of insight, notwithstanding that Mr Ahmad delayed seeking psychological support for close to three years after the cancellation of his registration. Ms Dover disagreed with the proposition that her recommendation that conditions be imposed on his registration stands in apparent conflict with her stated opinion that Mr Ahmad poses a very low risk of reoffending. She explained that the reason she recommended the imposition of conditions was to reduce the inevitable stress and anxiety Mr Ahmad would experience on return to practice and not because he posed a risk of reoffending.

Character references

1. Mr Ahmad tendered three character references in support of his application for reinstatement.
2. Mr Iba Almajzoub, the managing director of ISRA Medical Services, wrote that throughout the period of Mr Ahmad's employment he found Mr Ahmad to be "very honest, professional, loyal and enthusiastic". He wrote that having worked with Mr Ahmad he found it very hard to believe the findings made about him: "it does not seem to be in his nature". In Mr Almajzoub's opinion Mr Ahmad has shown "great remorse and regret".
3. Registered pharmacists, Abdullah Jaradat and Joan Power, also support Mr Ahmad's application for reinstatement.
4. Mr Jaradat has known Mr Ahmad for over 15 years. Their families are close. He wrote that Mr Ahmad has a reputation for being a proud and respected pharmacist who is loved by staff and colleagues. He wrote that he was shocked when he heard about the 2015 Decision, which "didn't seem typical of Mr Ahmad's character". He wrote that despite what happened he believed that Mr Ahmad is a genuine person who "wants the best for the public". He stated that if Mr Ahmad was reinstated he would not hesitate in recommending him to future employers.
5. Ms Power has worked as a locum pharmacist for nearly 60 years and described Mr Ahmad as being "among the best" of the pharmacists with whom she has worked. Ms Power worked with Mr Ahmad between 2013 and 2015. She described him as being hard working, reliable and ethical and "always giving great consideration to our customers".

The principles governing review of a cancellation order

1. On receipt of an application for review of a cancellation order, the appropriate review body, in this case the Tribunal, must conduct an inquiry: s 163B of the National Law. In conducting an inquiry into an application for review of a cancellation order, the Tribunal cannot review the original decision or any findings of fact made in connection with that decision: s 163C(2). Rather, the task of the Tribunal is "to determine the appropriateness, at the time of the review, of the order concerned": s 163C(1).
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: s 163B.
3. 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. In Shah v HCCC [2014] NSWCATOD 94 (Shah) the Tribunal summarised the applicable principles at [34]: 1. the applicant bears the onus of proving that he or she is a fit and proper person to be engaged in the profession … (see Scully v HCCC [2013] NSWNMT 7 (Scully) [41] and the authorities there referred to); 2. the standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities, tempered by the requirements of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; (see Scully [41] and the authorities there referred to; see also In Re Jason Martin [2010] NSWMT 13); 3. the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction that is exercised is for the protection of the public (see Scully [47] and the authority there referred to); 4. the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see Scully [48] and the authority there referred to); 5. there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see Scully [49] and the authority there referred to); 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. In Scully, the Tribunal referred at [50] to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [or her] worthiness and his [or her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant".

Submissions

1. Mr Ahmad submits that the Tribunal can be comfortably satisfied that the offending conduct will not be repeated for the following reasons taken in combination.
2. First, he now fully accepts responsibility for the offending conduct. In addition he admits giving untruthful evidence in the 2015 Tribunal proceedings.
3. Second, his claim of accepting responsibility and being remorseful for the offending conduct is consistent with the assessment made by Ms Dover.
4. Third, while undoubtedly serious, the offending conduct was nonetheless an aberration in an otherwise decade-long unblemished career as a pharmacist.
5. Fourth, since the cancellation of his registration he has diligently pursued professional development opportunities, including in the area of ethics. This, he asserts, demonstrates not only a commitment to self-improvement but also a firm understanding of the rules governing the practice of pharmacy in NSW.
6. Fifth, the shame and humiliation he experienced is likely to act as a powerful deterrent. He has no wish to put either himself or his family through "the hell" of the last five years.
7. Sixth, his claim that the misconduct was an aberration is consistent with the report of his current employer, who has found his work to be exemplary. In addition, it is consistent with the opinion of persons of good repute, Ms Power and Messrs Almajzoub and Jaradat.
8. Seventh, Mr Ahmad contends that his denial of supplying Oxytocin on 15 July 2012 (particular 8 of Complaint 1 in the 2015 Decision) is not determinative. Citing Ng v Health Care Complaints Commission [2018] NSWCATOD 105 at [47], he contends that denial of aspects of the conduct found proven by the Tribunal does not necessarily mean a lack of insight or remorse.
9. The Commission opposes the reinstatement of Mr Ahmad's registration for the following reasons.
10. First, while Mr Ahmad states that he "unreservedly accepts" that he engaged in the conduct found proven by the Tribunal, an examination of his evidence given in these proceedings reveals that his acceptance is anything but "unreserved".
11. Second, the claim made by Mr Ahmad in these proceedings that he charged customers a discounted price for supplying the medication listed in Schedule D to the Complaint (which has a wholesale value of over $10,000), in circumstances where the records of the Pharmacy state the medication was supplied at zero price, is implausible.
12. Third, Ms Dover's opinion that Mr Ahmad now accepts complete responsibility for his conduct must be treated with caution given that it would appear that Ms Dover was not fully apprised of all the circumstances surrounding the offending conduct. In addition, the Commission contends that it is of significance that, as disclosed by Mr Ahmad in these proceedings, he saw Ms Dover on the recommendation of his lawyers.
13. Fourth, Mr Ahmad's claim of total reformation sits uncomfortably with the expression "wrong clinical judgement" used to describe the offending conduct in his original statement. While that expression does not appear in Mr Ahmad's supplementary statement, he agreed in oral evidence that it was an accurate description.

Is the cancellation order now the appropriate order?

1. The key issue raised in this review is whether Mr Ahmad can now be trusted to practise the profession of pharmacy in a way that conforms to the professional standards expected of a pharmacist and, in particular, in a manner that presents no material risk to the safety of the public and their confidence in the profession.
2. A central question is whether Mr Ahmad's claim to have insight into and to be contrite for the actions which led to the cancellation of his registration can be accepted. The task of assessing whether a person's expression of contrition is genuine is difficult as it cannot be objectively measured and is inevitably impressionistic.
3. The assessment of whether as Mr Ahmad claims he has insight into his conduct and is genuinely contrite turns in part on whether the explanation he proffered for that conduct can be accepted. That explanation - succumbing to pressure from members of the Middle Eastern community to dispense drugs without a prescription at a time when he perceived his employment to be insecure - might explain some instances of the offending conduct but, given the volume and type of medication dispensed, we consider it implausible that it explains all of the offending conduct. For example, between 2 July and 14 September 2012 Mr Ahmad dispensed Schedule 4 and 4D drugs without a prescription in the name of Patient B on 149 occasions and made false entries in the Pharmacy's records about the purported dispensing (particulars 11, 12 of Complaint 1). The drugs dispensed included Viagra, Cialis and Levitra (used in the treatment of erectile dysfunction), Duromine (an appetite suppressant with stimulant properties) and Eleva (used in the treatment of depression), and had a wholesale value of around $10,000. Taken together with the entries in the Pharmacy's books recording that on each occasion these drugs were supplied at zero price, the benign explanation proffered by Mr Ahmad that he was responding to pressure from time-poor, sick customers to provide medication without a prescription, and providing that medication at a discount price, in our view is implausible.
4. For current purposes we have assumed but not decided that, as claimed by Mr Ahmad and not challenged by the Commission, many members of the Middle Eastern community based in the Bankstown area have an expectation that friends will "honour" favours, even when this involves the friend engaging in improper or unethical conduct.
5. The opinion expressed by Ms Dover, a qualified clinical psychologist, is not to be lightly disregarded, given her advantage of meeting with Mr Ahmad for seven hours over a four-week period. Nonetheless, because of the implausibility of his explanation for his unauthorised and unlawful dispensing of a large quantity of prescription drugs, we are unable to accept her opinion that Mr Ahmad is genuinely contrite except in the sense that he is now sorry that his conduct has led to his current situation. As Ms Dover properly conceded, the reliability of her opinion turned on the truth or otherwise of the history she was given by Mr Ahmad.
6. The character evidence also must, necessarily, carry limited weight. Each of Mr Ahmad's character witnesses expressed surprise that he would behave in the way he did because his misconduct appeared to them to be "out of character". Yet the conduct the subject of the 2015 Decision was not a single, spontaneous error of judgement or even a small number of "mistakes" or "errors of clinical judgement": it was a course of conduct over a considerable period of time that was unethical, dishonest and unlawful.
7. In summary, we accept that Mr Ahmad, when first investigated and during the Tribunal hearing in 2015, gave dishonest evidence as a result of lacking the moral courage to be truthful. We accept also that being caught, investigated, deregistered and banned from applying for re-registration for two years has been a humiliating experience for Mr Ahmad and therefore has had a significant personal deterrent effect on him. We also accept that he probably feels genuinely remorseful because of the impact this affair has had on his family and himself. We also accept his employer's statements that he has had no cause for concern with Mr Ahmad's conduct and considers him to be a valued employee.
8. Nevertheless, we remain troubled by a number of aspects of Mr Ahmad's evidence. The first is his continued tendency to minimise the extent of his own real responsibility. He sought to deflect the full weight of blame for his predicament by attaching some of it onto the community to which he belongs. He was claiming, in effect, that he had been manipulated through his own misguided notions of trying to act as a good neighbour or friend into becoming complicit in evading rules designed to protect public health and safety. The implication was that, in doing so, he had really intended no harm.
9. Even if his assertion is true, one of his key roles as a pharmacist was to protect the public from themselves in such situations. It is surprising to us, therefore, that Mr Ahmad needed to consult a psychologist to gain insight into the full extent of his misconduct.
10. In his supplementary statement, Mr Ahmad also made the point that he has learned that to maintain the trust and confidence of patients, pharmacists must act honestly and with integrity. That is an ambiguous statement. It could imply that he did not have that appreciation at the time of his misconduct but has now gained it or it could mean that he had always had that appreciation but now understood the consequences of not living up to the required standard. If the former, it is an alarming suggestion. If the latter, it is a demonstration of how shallow his ethical foundation was at the time of his misconduct. If the latter is the case, while it is to his credit that Mr Ahmad has completed a number of courses intended to deepen his grasp of the ethical basis of his profession it is a puzzle to us why, after so many years in the profession, he needs to undertake refresher courses on such a fundamental matter.
11. We remain troubled by what we have characterised as an implausible account of his "discount" transactions. Our impression is that we have not been given a fully frank account of what actually was happening. Approximately $10,000 worth of prescription drugs were dispensed "off books", yet all we have is an implausible account from Mr Ahmad for this. He bears the onus of proving that he is a professional person with unimpeachable standards of integrity and honesty. This does not assist his case, especially when he maintained his own description of his misconduct as "wrong clinical judgements". That is an unsatisfactory euphemism for dishonesty, fraud on his employer and unlawful and unethical pharmacy practice. As we have noted, although Mr Ahmad has, we believe, the potential to be re-registered at some time in the future, for the reasons given above, we are not satisfied that he has discharged his burden of proof at this review.
12. From the evidence given by Ms Dover and the character witnesses, together with the favourable evidence about his current employment, we can envisage that Mr Ahmad has the potential, at some stage, to demonstrate that he is rehabilitated and trustworthy. We are not satisfied that that stage has yet been reached.
13. For these reasons we have decided to dismiss Mr Ahmad's application for review.

Costs

1. If agreement cannot be reached on the issue of costs the parties are to make brief written submissions about the Commission's foreshadowed application for costs. In addition, the parties are invited to comment on our preliminary view that any such application for costs can be dealt with on the papers without an oral hearing.

Orders 1. The application for reinstatement is dismissed. 2. If the parties do not reach agreement on the issue of costs within 14 days of the date of this decision the Commission must file and serve brief submissions in support of its application for costs. 3. Within 28 days of receiving the Commission's submissions on costs Mr Ahmad must file and serve brief submissions in reply. 4. Within 30 days of the date of this decision the parties must notify the Tribunal and each other whether they consent to the issue of costs being determined "on the papers" as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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: 28 February 2019