Fryar v Health Care Complaints Commission

Background Factual Material

1. In 1992 the Applicant graduated with a Bachelor of Pharmacy from the University of Sydney. From January 1993 to 1996 the Applicant worked as a pharmacist at a pharmacy in Hornsby.
2. On 13 January 1993 the Applicant was granted provisional registration as a pharmacist in New South Wales.
3. On 10 February 1993 the Applicant was granted full registration as a Pharmacist in New South Wales.
4. In 1997 the Applicant practised as a Pharmacist and Manager of a pharmacy in Castle Hill.
5. Between 1997 and 1998 the Applicant practised as a Pharmacist and Manager of a Pharmacy in Southampton in the United Kingdom.
6. In 1999 the Applicant practised as a Locum Pharmacist and looked to purchase his own pharmacy.
7. In 1999, the Applicant purchased his first pharmacy located in O'Connell Street in Sydney which he owned and operated for 3 to 4 years.
8. In 2003 the Applicant acquired two other pharmacies, at one stage operating three pharmacies, one of which closed leaving two pharmacies.

The First Complaint

1. The First Complaint covered the period between 1 July 2005 and 31 December 2006. It related to the supply of prescribed restricted substances, including anabolic/androgenic steroids, Benzodiazepines, Human Chorionic Gonadotropin (HCG), Anastrozole, Tamoxifen and Phentermine, in quantities and for purposes which did not accord with recognised therapeutic standards and some of which were commonly abused for non-therapeutic purposes, namely, body building and achieving greater muscle mass, contrary to the Poisons and Therapeutic Goods Regulation ("PTGR"). The medications were supplied by the pharmacy which was at that time owned by the Applicant and located in O'Connell Street in Sydney.
2. Dr Kelvin Wong, who issued the prescriptions for such medications, has now been struck off the Register of Medical Practitioners.
3. This First Complaint also included breaches of the PTGR with respect to the supply of anabolic/androgenic steroids supplied more than once, where repeats had been authorised by the prescriber but no interval of repeat had been specified and the Applicant's failure to properly account without reasonable excuse, for supplying a range of medications in response to a statutory notice pursuant to s.35 of the New South Wales Poisons and Therapeutic Goods Act ("PTGA") and for the sale of restricted substances to another pharmacy without holding a Wholesaler's Licence, contrary to s.9(1) of the PTGA.
4. Between 10 November 2005 to 19 December 2006 18 prescriptions were presented to and dispensed at the Applicant's pharmacy, of which 11 were personally dispensed by the Applicant for benzodiazepine, self-prescribed by Dr Wong.
5. On 18 March 2008 the Applicant participated in a recorded interview with the PSV. He conceded during such interview that he was not aware that he required a licence to supply stock to another pharmacy.
6. On 22 February 2010 Mr Luddington prepared a Peer Review Report in relation to the Applicant for the Pharmacy Tribunal and concluded that the Applicant "chose to continue to supply medication regardless of the ... [dispensed medication histories] ... information being available and contrary to legal and professional obligations" (HCCC v Fryar [2013] NSWPHD 2).
7. The Applicant's conduct attracted Mr Luddington's strong criticism.
8. The Respondent admitted the Particulars of the First Complaint, subject to some qualifications and admitted the complaints of unsatisfactory professional conduct and professional misconduct.

The Second Complaint

1. The Second Complaint covered the period March 2010 to September 2010. The complaint concerned the Applicant's supply of Schedule 2 and Schedule 4 medications, including compounded topical solutions of Minoxidil, of varying strengths, with some including also Tretinoin (Retin A), oral Finasteride (Proscar) and Loniten (Minoxidil), involving a range of breaches of the PTGA and the PTGR, including supplying in a quantity or for a purpose that did not accord with recognised therapeutic standards, supply without prescriptions, failure to label preparations appropriately by omitting directions for use and the patient's name, failure to record required details of the prescriber's name and the names and addresses of patients, failure in supplying certain medications on prescription or otherwise, to provide appropriate counselling or product information to patients who were the intended recipients of the medications, and failure to ensure in respect of some supplied medications that the patients, as the intended recipients of the medications, were adequately instructed about doses and fully understood how to safely use, store and dispose of the products (HCCC v Fryar [2013] NSWPHD 2).
2. In the disciplinary proceedings the Applicant relied on a report from his psychiatrist, Dr Kathryn Lovric, who assessed the Applicant as satisfying the DSM IV criteria for diagnosis of Generalised Anxiety Disorder "characterised by recurrent excessive worry and anxiety and also suffers recurrent panic attacks ... usually on a daily basis" (HCCC v Fryar [2013] NSWPHT 2).
3. Dr Lovric said that these conditions "are essentially lifelong conditions" and are "disorders thought to be constitutional in nature". She noted that the Applicant "has a long history of anxiety extending back to his childhood".
4. On 10 April 2013 the Pharmacy Tribunal of New South Wales made a Decision pursuant to s.165A of the Health Practitioner Regulation National Law (NSW) ("the National Law") as to the two separate complaints and found as follows: "Findings (i) The Tribunal found the Pharmacist guilty of unsatisfactory professional conduct and professional misconduct, in respect of the First Notice of Complaint dated 20 June 2011 (as amended); and (ii) The Tribunal found the Applicant guilty of unsatisfactory Professional Conduct and professional Misconduct in respect of the Second Notice of Complaint dated 22 March 2012."
5. The orders made by the Pharmacy Tribunal of New South Wales were as follows: "Orders: (i) The Pharmacist's registration as a Pharmacist was cancelled. (ii) The Pharmacist was precluded from applying for review of the Tribunal's order for cancellation for a period of 18 months. (iii) Save for any delay caused by amendment to the particulars, the Pharmacist was ordered to pay the Complainant's costs as agreed. (iv) The Tribunal's orders were to take effect upon the expiration of 30 days from the date of the decision."
6. On 11 November 2014 the non-review period expired.
7. On 27 January 2015 the Applicant filed an Application for Review.

The Application for Review

1. As earlier noted the Applicant seeks a review of the cancellation of his registration as a pharmacist pursuant to s.163B of the National Law and a review of the Tribunal's orders pursuant to s.163A.
2. The review to be undertaken by the Tribunal is to determine the appropriateness at the time of review of the order concerned pursuant to s.163C(1). The review is not of the decision itself, nor the correctness of any of the findings made by that Tribunal at the time of the decision.
3. In determining this application, as all applications under the National Law, the Tribunal is to have regard to the objectives and guiding principles including particularly s.3.A.
4. The Applicant is to prove on the balance of probabilities that the previous order made no longer remains appropriate. The Applicant bears the onus of proof.
5. Evidence in support of the Applicant's review application was received by the Tribunal at the hearing of the matter on Thursday 4 June 2015 and Friday 5 June 2015 by way of documentary and oral evidence.
6. At the conclusion of the hearing it was agreed that as the Applicant was self-represented, the Respondent would proceed first with its oral closing submissions and accordingly, such approach was taken.
7. At the conclusion of the Respondent's oral closing submissions, the Applicant made an application to provide his closing submission by way of written submissions and he was ordered to do so by 1 July 2015 and the Respondent was to provide further submissions in reply by 22 July 2015.
8. The Applicant's written submissions were served on the Respondent on Monday, 13 July 2015 ("the Applicant's Submissions").
9. Further submissions were provided to the Tribunal in reply to the Applicant's written submissions by way of a Summary of the Respondent's Closing Submissions, these submissions also addressed the issue of costs.

(A) Good Character

1. The Applicant cites the fact that he continued to practise as a pharmacist for two years after the second complaint (signed by the HCCC Director of Proceedings on 22 March 2012) in an ethical and professional manner. During that time, the Applicant maintains that he posed no threat to the public "always willingly cooperating and providing evidence and such to the Pharmacy Council as to my ethical practice during the two years prior to deregistration".
2. The Applicant submitted that the evidence he supplied to the Tribunal demonstrates that "in all aspects of my life I am an honest and giving person of good character" citing the active changes he had made in his life directed towards playing an active and positive role in society as testament to his good character.
3. The Applicant made particular reference to his volunteer work for cancer charities and tuberculosis work in Vietnam. He made reference to his active involvement with his local community via his children's sporting teams and through his charity work with Tour de Cure, submitting that these were not the actions of someone seeking self-serving purposes but rather attested to the true nature of his character and how he conducts himself each day. The Applicant submitted that he believed his life now reflects a changed man who "is endeavouring to improve himself on a daily basis. I owe it to my children to demonstrate this fact, now and into the future."

(B) Skills and Continuing Education

1. The Applicant drew the Tribunal's attention to his recent academic record showing completion of a Master's Degree from Sydney University in International Public Health with a Distinction average.
2. The Applicant noted the course content of his Master's program, in particular health education and ethics in "developing world humanitarian work and human rights issues". The Applicant stressed that fundamentally an ethical approach was the foundation for developing and improving the human condition.
3. The Applicant freely acknowledged that he would have to undertake further relevant professional training, but he failed to demonstrate that he had made sufficient enquiries even to be able to nominate potentially appropriate courses.
4. Whilst the Applicant has certainly furthered his education since deregistration, specific pharmacy related continuing education is lacking. The Applicant admitted that there are gaps in his pharmacy education stating: "I should have thought to do more pharmacy education … I missed that one."
5. The Applicant's failure to investigate and undertake pharmacy continuing education is surprising as the Applicant had clearly demonstrated an intention to reapply for registration as soon as permissible, as is evident from his email addressed to the Pharmacy Council dated October 2014 - and must be taken to have known the Professionals Continuing Education requirements.

(C) Mental Health

1. The Applicant drew the Tribunal's attention to the expert's opinion provided by the Psychiatrist Dr Kathryn Lovrick whom he referred to as an independent evaluator stressing she was at no time his treating psychiatrist. The Applicant asserted that Dr Lovrick's advice as contained in her letter of February 2012 was that "she clearly stated my fitness to practice even then" by saying: "He is currently fit to practice as a pharmacist and I do not believe that his intermittent symptoms impact on his capacity to work as a pharmacist. He does not present a risk to the health and safety of the public currently, there are no significant problems with his memory or concentration and he appears to have good insight into his illness, the need for ongoing and regular treatment and he does not intend to self-prescribe in the future."
2. The Applicant further notes that Dr Lovrick (in February 2012) said that his medication (Sertraline) at its then current dose would benefit him greatly.
3. The Applicant was critical of the Tribunal suggesting that his current dose (i.e. in 2015) may be unduly high stating that Dr Lovrick had "agreed it was, and is, highly beneficial".
4. The Applicant asserted that he had acted in accordance with the recommendations of Dr Lovrick re further treatment from a psychiatrist in that he continued treatment with his psychiatrist Dr Jayne Puttman until December 2012.
5. The Applicant further noted that he had followed the advice of his then GP "which was that I no longer needed psychiatric consultations but to remain on my medication and seek further psychiatric help, if I need it in the future".
6. The Applicant submitted that his provision of dispensing records in respect of his anti-anxiety medication (Sertraline) occurred overnight and at short notice and the fact that there was no report prior to June 2014 was not evidence of non-compliance: "To conclude non-compliance purely from irregular dispensing dates is narrow and does not take into account the nature of modern life in general."

(D) Insight/remorse

1. The Applicant admitted that he was making amends on many levels by re-educating himself (MIPH Degree) indicating that this was one way that he was able to give back to society and restore faith in himself as a decent and honest person.
2. He drew the Tribunal's attention to the references of Danny Moore, James Wackett and Garrett Mills who attested to his level of remorse concerning his earlier conduct, stating that these referees knew him well: "they know what transpired and can see how I have grown and changed fundamentally as a man in an attempt to better myself."

(E) Undertakings

1. The Applicant concluded by saying: "I am fully aware that my current level of knowledge is not adequate enough for full registration immediately I respectfully propose that I be granted registration only after a specified period of supervised education. This can also include a mentorship program and is at the discretion of the Tribunal."
2. The Applicant also indicated that he was willing to submit to an independent psychiatric evaluation prior to becoming registered to ascertain his mental fitness to practise. He also stated that he was willing to make a regular review of his mental fitness a condition of his registration so that the Tribunal and the Commission could have ongoing reassurance as to his fitness to practise.
3. He concluded by saying: "I am acutely aware of the results of me allowing others to impose their will. The personal cost of this is to give me more than enough resolve to never let this happen again."

The Test on Review

1. The Applicant bears a heavy onus of proof in satisfying the Tribunal that his registration as a pharmacist should be reinstated.
2. In Re Mansoor Haider Zaidi [2006] NSW MT 6, at paragraph [42], the Medical Tribunal of New South Wales set out the summary of principles applicable on the question of reinstatement as follows: "The principles applicable on the question of reinstatement to the Medical Register The Tribunal has had the assistance of counsel for the parties, who in their written and oral submissions have comprehensively and helpfully referred us to the relevant decisions of the Court of Appeal and this Tribunal in which there is the discussion of the principles which should be applied by this Tribunal in an application for reinstatement. These included the cases of Application of K V Prakash (Medical Tribunal, 31 July 1992); Application of P H Corbett (Medical Tribunal, 7 December 1995); Ex parte Tzinolis; Re The Medical Practitioners Act (1966) 67 SR 448 and Dawson v Law Society of NSW (Court of Appeal, 21 December 1989). From our reading of the reports of these decisions, the following principles have been collected and applied in this application: 1. The purpose of the jurisdiction which is exercised by the Tribunal is not for the punishment or further punishment of the former practitioner. Instead the Tribunal's jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession, who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole community as a person worthy of their confidence. An applicant who seeks to establish fitness to have his name restored to the Register, having been earlier removed from it, bears the onus of proof in the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession, is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register, he is in a more disadvantageous position than an original applicant. He must, in effect, displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contra-suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 2. The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence, that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent, and resulting in serious distress to patients, it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register. It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What, in this respect, the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man would do in the future, and the decision in a particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant. In making that assessment, it may draw inferences from what it has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of the practitioner's responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent fitness, the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed, and that he will act honourably."

Reform - insight

1. In general, the Tribunal found the Applicant to be, at times, an unreliable witness. His answers tended to vary in response to the force of questioning by the Respondent, and the Tribunal observed a degree of vacillation and a tendency to improvise under pressure which resulted in a lack of complete and immediate frankness and gave the Tribunal cause for real concern.
2. The Respondent submitted that there was room for serious doubt as to whether the Applicant had attained full insight into the circumstances of his deregistration as a pharmacist. Attention was drawn to the earlier findings of the Pharmacy Tribunal that the Applicant was unable to demonstrate insight into his conduct and it was put that the Applicant had (on review) failed to satisfy "the … heavy onus" to persuade the Tribunal of the existence of "…solid and substantial grounds…" referred to by Mahoney JA in Dawson v Law Society of New South Wales [1989] NSWCA 58 (paras 233-234 of the Pharmacy Tribunal's decision in HCCC v Fryar [2013] NSWPHT 2) such as to uphold the review. The Tribunal accepts this submission as it remains unsatisfied that the Applicant had demonstrated insight into his conduct to the requisite degree.
3. When considering insight, it is useful to consider it under several separate headings as dealt with by the Tribunal in its deregistration decision:- (i) Insight with respect to Dr Wong and Mr Cohen in the context of the motivation behind their conduct that formed part of the First complaint. The Applicant's inability to appreciate the less than professional intent of Dr Wong and Mr Cohen rendered him susceptible to manipulation. This lack of insight is evident in the recorded interview of the Applicant with the Pharmaceutical Services Unit ("PSU") during which he conceded that he was not aware that he required a licence to supply stock to another pharmacy. When invited to comment on his responses throughout the interview to questions concerning the dispensing of Sustanon, Anastrozole and Tamoxifen to patients he understood to be body builders, he was noted to have said: "Look, the evidence is quite clear, what's happened. All I can say is that ... I haven't intentionally done anything wrong. I certainly believe that I was quite ignorant and naïve and I tend to believe the best in people around me and that's a definite fault in business as well as personal and professional. So I think really, that's a case of what's happened personally speaking with this. This is something that's gone on and gone out of control before I've realised it, gone, hey, this is bad, this doctor is really doing the wrong thing ... but speaking mainly about the Dr Wong issue, I clearly see that, you know, the prescribing was inappropriate, the dispensing obviously is in appropriate. I realise that prior to you guys approaching me ... I realised that this was inappropriate - inappropriate for the doctor to prescribe, which I trust he was a reasonable prescriber, realised that the dispensing was unreasonable and rectify that situation since then ... but there's not much more I can say, really, you know. I've certainly not intentionally done anything wrong, I don't think, or illegal. Just trying to run my business." Mr Luddington, the Peer Reviewer undertaking the report for the Pharmacy Council concluded that the Applicant, "chose to continue to supply medication regardless of the ... [dispense medication histories] ... information being available, contrary to legal and professional obligations. The Tribunal found that the Applicant's absence of insight with respect to the bona fides of other professionals and the desirability of implementing their instructions rendered him susceptible to their improper requests and unable to resist their manipulation. The Applicant's conduct throughout the review hearing was not such as to overcome this finding of the Pharmacy Tribunal (HCCC v Fryar [2013] NSWPHT 2). Throughout the review hearing the Applicant seemed more concerned with the impact of a cancellation of his registration on his wife and family and the financial consequences of the loss of registration as a pharmacist than upon confronting the character flaws that contributed to his conduct. (ii) The Applicant demonstrated little insight into his own behavioural traits and motivations which would have assisted him in addressing adverse habits. The absence of this insight left the Tribunal less than comfortable that the Applicant would be immune from the risk in future of inappropriately placing trust in professional colleagues whose motivations were less than honourable. In this review, the Tribunal remained unconvinced that were the Applicant to be placed in similar circumstances with a concurrence of financial pressure, professional pressure and the opportunity offered by persuasive business colleagues, that he would not again be susceptible to a similar error of judgment. Such reservations on the part of the Tribunal were further confirmed when it became evident that the Applicant had failed to fully inform Ms Rumble of the circumstances of his disqualification. In the context of the motivation of others, the Applicant identified that there was a common element in the characters of Dr Wong, Mr Cohen and Mr Wencel (Exhibit R4), namely that they were "very persuasive businessmen", and that he would "just never go there again". (iii) The Applicant's lack of insight into the consequences that professional misconduct and unsatisfactory professional conduct may have on others, especially patients to whom medications are illegally dispensed. Such insight would enable a practitioner such as the Applicant to be better placed in acting consistent with the paramount duty to protect the public in future.
4. While the Tribunal on review could accept that the Applicant has acquired a better appreciation of the distinctions between proper and improper motivations in others, it was disappointing to note that his evidence for the most part consisted entirely of his own statements and was not supported by independent professional evidence, save in the one circumstance of the evidence of his former employer, Ms Rumble (who had employed him as a technician in her compounding pharmacy). The other referees, excluding Ms Rumble, were friends who in the Applicant's evidence knew him well.
5. The Tribunal notes that the Applicant has now resigned from the position of employment with Compounding Pharmacy Australia.
6. With respect to the Applicant's insight into his own motivations and behavioural traits, the Tribunal remains unconvinced that he has had acquired a comfortable level of insight. Evidence of this was provided in the Applicant's unwillingness to acknowledge that financial motivation may have played a part in his past actions giving rise to the earlier findings of the Pharmacy Tribunal.
7. The Tribunal also remains unconvinced that the Applicant has undergone a "character transformation" to the extent outlined in Ex parte Tzinolis re Medical Practitioners Act 1966 (67 SR (NSW) 448). The indignation displayed by the Applicant when questioned about the financial motivation which played a role in his past actions was not altogether consistent with an appreciation of the role those motivations had played in respect of that action. The Applicant freely acknowledged that he had been too trusting in the past but was unable to provide evidence to suggest that this inherent disposition had in any way changed.

Skills/Professional Development

1. The Tribunal was concerned to note that the Applicant had not been proactive in respect of ascertaining what was required for re-registration and had not explored further education that may be required to satisfy the Tribunal in respect of Recency of Practice and current skills needed in the pharmaceutical setting. The Applicant seemed equally unmotivated to make the necessary enquiries with the Pharmacy Council or such other professional body as may have enabled him to ascertain the appropriateness of assuming a position as a technician in a compounding pharmacy in light of his deregistration as a pharmacist.
2. The Applicant failed to demonstrate that he has engaged in any continuing education, in accordance with the requirements for maintaining registration as a pharmacist since the Tribunal's original decision. When asked questions concerning what he had done in this regard, the Applicant's response was that he had read a PSA Journal from time to time.
3. While the Tribunal notes that it is to his credit that he has completed post-graduate qualifications in international public health during the period his deregistration, such studies do not fall within the ambit of continuing education required of pharmacists to maintain their registration.

Employment Status of Applicant

1. The Applicant responded to the Respondent's submission that, by working in the pharmacy while deregistered it could be inferred that he was stealing or may intend to steal from his employer, Ms Rumble, saying the submission was "outlandish".
2. The Applicant further submitted: "It must be made clear that I applied for re-registration when I was entitled to in October 2014. At this time I was studying full-time at the University of Sydney. I had no intention of working in a pharmacy and had no contact with Ms Rumble. There has now been a 9 month delay in my being able to work as a pharmacist due to no fault of my own. I made a pragmatic decision to find work in pharmacy, only as a technician, to serve as a source of income whilst applying and updating my technical skills in preparation for re-registration."

Competency / Mental Health Issues

1. This inability to take proactive steps was further demonstrated in respect of the Applicant's failure to provide any proper psychiatric report or evidence in relation to his mental health during the proceedings. The Applicant's stated willingness to undergo an independent psychiatric assessment as a condition to any reinstatement is inadequate in circumstances where he was aware prior to the review hearing of the Respondent's concern in relation to his mental health and yet he failed to adduce any proper evidence in relation to this issue.
2. On his own evidence, the Applicant had not been under the treatment of a psychiatrist since December 2012, shortly prior to the Tribunal's decision being handed down in April 2013. He had not received any psychiatric treatment since his previous psychiatrist, Dr Puttman, retired. He had also changed his general practitioner. The Applicant provided a copy of the prescription for Sertraline dated 23 February 2015 from a general practitioner, Dr Bitlan, which spelled his name incorrectly and provided for an authority prescription for the incorrect dose of Sertraline.
3. There is no evidence before the Tribunal to support a conclusion that should the Applicant recommence working as a pharmacist, he would not experience a deterioration in his mental health, as he did before. On the Applicant's own evidence he seeks re-registration, amongst other reasons due to financial hardship, which is of concern to the Tribunal in circumstances where his previous issues with financial hardship, in part, lead to the misconduct that resulted in his being deregistered.

Compliance with earlier Orders

1. Shortly prior to the hearing the Applicant sought employment as a pharmacy technician at a compounding pharmacy and at the time of the hearing, was working full time for such pharmacy. His employer, Ms Kim Rumble, was required for cross-examination, having provided a character reference in support of his case. The Applicant's curriculum vitae tendered at the hearing (Exhibit 1A) failed to make any mention of such employment. Prior to obtaining employment with Ms Rumble, the Applicant, on his own evidence, made no enquiries with any appropriate body and nor did he obtain legal advice in relation to working in a pharmacy whilst his registration had been cancelled.
2. Ms Rumble also admitted, under questioning, that she too is also "too trusting" and accordingly was not inclined to question the Applicant about the particulars of the Tribunal's finding and any conditions it may have placed on his practice, choosing rather to accept the Applicant's explanation of the Tribunal's decision and the ramifications thereof in respect of his subsequent practice. Yet the Applicant was aware that on 5 April 2013 his registration was subject to conditions requiring him to: 1. notify his employer/s of the Tribunal's orders in HCCC v Fryar [2013] NSWPHT 2; 2. provide evidence to the Pharmacy Council of New South Wales that he had notified his employer of the Tribunal's orders.
3. While this was prior to the cancellation of the Applicant's registration and expressed to be operative while the Applicant was employed as a pharmacist, it served to demonstrate the concern of the Tribunal both on deregistration and again on review, that the Applicant would pose a risk to the public prior to implementation of his cancellation of registration if he were to practise in circumstances where the findings of professional conduct against him were not made known to his employer. In spite of this history, the Applicant failed to inform his employer Ms Rumble of the exact findings of the Pharmacy Tribunal, nor did he provide her with a copy of the Tribunal decision. In evidence Ms Rumble admitted she was not aware of all of the findings of the Tribunal.
4. The Tribunal finds that the Applicant was selective in informing Ms Rumble of the Tribunal's findings. It was evident to the Tribunal when Ms Rumble was under cross-examination that she had no idea of the Tribunal's significant findings in regard to the Applicant's conduct as a compounding pharmacist, including his adding of unknown substances to compounded medications and the provision of Schedule 4 items without prescription.
5. The Applicant, under cross-examination, appeared to believe that the onus was on Ms Rumble to seek out a copy of the Tribunal's decision, as opposed to himself ensuring that he provided her with a copy prior to commencement of any employment with her.
6. The Tribunal found the consistent theme of an absence of insight on the part of the Applicant disturbing, as the Applicant sought to have the Tribunal believe that he was the victim in these circumstances and that the responsibility lay elsewhere, with respect to this matter and to his poor state of preparedness for this hearing, seeking restoration of his name to the Register.

Lack of Proper Preparation for Review

1. The Tribunal was fortified in its view that 'the Applicant lacked insight', by his failure to obtain any advice in relation to his application for review, and his pre-disposition in these proceedings to use words such as "negligent" and "misguided" and that he had good intentions but has been "hoodwinked". These characterisations of his earlier conduct resulting in deregistration were to be contrasted with the Tribunal's findings in the previous proceedings, that his conduct was deliberate and engaged in for financial benefit. Consistent with the observations of the Court of Appeal in HCCC v Litchfield, the Tribunal measures the gravity of the Applicant's professional misconduct not by reference to the worst case, but by the extent to which it departs from proper standards. In this context, the Tribunal had (and has now on review) also taken into consideration the unchallenged peer review reports of Mr Luddington and Ms Goodman. Adopting the Medical Tribunal's words in HCCC v Dr Wong [2010] NSWMT 4 at [143], the Tribunal regarded the Applicant's conduct as "a complete abrogation of his responsibilities … and … an abandonment of principle…" inconsistent with the legal and professional obligations inherent in registration as a pharmacist" (HCCC v Fryar [2013] NSWPHT 2, [234]).
2. There were several situations in which the Applicant failed to properly check or conduct basic research in a diligent manner. He did not check the procedural requirements before this Tribunal hearing; he made no enquiries regarding what evidence he may need to put before the Tribunal; he made no enquiries with professional bodies regarding what manner of preparation for the Tribunal proceedings would serve him well; and he did not make enquiries with the Pharmacy Council to check whether it was permitted for a deregistered pharmacist to work as a technician in a compounding pharmacy.
3. It is unfortunate that the Applicant in his closing submissions has further demonstrated his lack of appreciation of what was in issue on review, in particular by his unwarranted assertion that the Respondent had "implied that [he is] guilty of further crimes"; and that the Applicant is a "non-compliant patient, suffering from mental illness preventing [his practice as a pharmacist]". These are misguided views and are of some concern to the Tribunal in the context of the Applicant's insight into his situation at the present time.

Ratio for the Review Application

1. The Applicant's evidence was largely directed towards the adverse impact of his deregistration on his family (including financial hardship), the Applicant's other personal relationships, and on his standing in the community. The Tribunal accepts that the impact of his deregistration has been deeply felt by both the Applicant and his family. However, it is of some concern to the Tribunal that in the absence of questioning concerning the effect of his past actions on patients, to whom medications were illegally dispensed, that the Applicant expressed no apparent contrition and awareness of the potential adverse effects on the patients. It was only when he was challenged that he expressed a degree of contrition and awareness of the potential impact on the patients of such actions. In the Applicant's written submissions filed in this matter on 22 July, he stated: "Of this I live with, not only the personal shame and remorse and destruction of my professional reputation, but also in the knowledge that my actions have caused (and still are causing) significant pain and sadness to the ones I love most my wife and children". The Tribunal considers it telling that no reference to the effect of his actions on patients is contained in this reflection.
2. Regrettably, the Tribunal is not satisfied that the Applicant is genuinely remorseful for his past professional misconduct. Rather his focus was on how he and his family have been personally devastated by the consequences that flowed from his deregistration.
3. In order for the Tribunal to have confidence that the Applicant would not commit similar offences to those which resulted in the finding of professional misconduct, at the very least there would need to be probative evidence of contrition for the potential detrimental effects to patients the subject of complaints 1 and 2 in proceedings before the Pharmacy Tribunal in 2013. However, there is no probative evidence to this effect.
4. In this context, the Tribunal is mindful that the jurisdiction is a protective one (Reimers v Medical Council of New South Wales [2015] NSW CAT [OD] 38), and only practitioners who are competent to practise in an ethical manner should be permitted to practise. The Applicant has not been able to demonstrate that he is reformed. A reformed character is not usual, but is an exceptional thing (Litchfield v Medical Council of New South Wales [2012] NSW MT 8). His desire to work as a pharmacist is simply not enough; it is his worthiness and fitness to practise that are of significance.
5. The Applicant has failed to demonstrate that he now has insight about what caused him to engage in his prior conduct. He also (unwisely) has ignored the recommendations of a psychiatrist. This mitigates against his having success in this review application.

Medication Compliance in the Context of Mental Health

1. The Applicant, during the course of this review, obtained a dispensing history of the prescription Sertraline and provided such history on the second day of the hearing, but he nevertheless failed to provide any history prior to April 2014 (Exhibit A11). This Exhibit evidenced that there were issues with the Applicant's compliance with taking his medication and that there were periods where the medication had not been dispensed. On the Applicant's own evidence, Dr Bitlan is just a prescriber, and does not conduct any type of review.
2. The dispensing history provided by the Applicant as evidence comes from two different pharmacies. The dispensing history showed that Sertraline for the Applicant was dispensed from Priceline Pharmacy in Lane Cove on four occasions, and from Priceline Pharmacy in Chatswood on six occasions. On each occasion the prescriber was Dr Bitlan; the quantity dispensed was 60 tablets and the directions were 'take one tablet in the morning'. On 21 November 2014 and 27 April 2015, the Applicant received a double supply; the prescription was dispensed twice on the same day and the Applicant received 120 tablets.
3. The dispensing history showed that Dr Bitlan had written two authority prescriptions, the first on 27 June 2014 and the second on 23 February 2015. Each authority prescription was for a quantity of 60 tablets with 5 repeats.
4. The dates that the prescriptions were dispensed are not consistent with a finding that the Sertraline was taken at regular intervals at the stated dosage of "One tablet in the morning". The dispensing history showed that the first four supplies from the authority prescription (dated 27/06/14) were supplied on 27 June 2014, 18 July 2014, 15 August 2014 and 19 September 2014. Each supply was for 60 tablets which would be a sufficient quantity of Sertraline for the Applicant to take two tablets in the morning until 25 October 2014. The Applicant did not receive the next repeat until 21 November 2014. There was a period of 27 days that the Applicant would not have had any medication.
5. On 21 November 2014, two repeats for Sertraline were dispensed. The Applicant received a double supply of Sertraline (120 tablets). These were the final two repeats from the authority prescription. The Applicant had sufficient quantity of Sertraline only until 20 January 2015. The Applicant was in Vietnam between November 2014 and January 2015. The Applicant returned from overseas but did not see Dr Bitlan until 23 February 2015 when the second authority prescription was written. There was a period of 34 days that the Applicant would not have had any medication.
6. The prescription submitted as evidence was dated 23 February 2015. The prescription contained several mistakes. The Applicant's name had been misspelt (Jonathon); the prescription had been written for a previous address; the dosage indicated on the prescription stated 'take One tablet in the morning'. The Applicant stated that he is currently taking 'Two tablets in the morning'. An authority prescription for an increased quantity of Sertraline was approved by Medicare even though the dosage was incorrectly stated as 'One mane (Take One tablet in the morning)'.
7. On 23 February 2015, Dr Bitlan wrote an authority prescription for Sertraline for 60 tablets with 5 repeats. The original supply of Sertraline was dispensed on 23 February 2015. The Applicant would have sufficient quantity of Sertraline until 25 March 2015. The next two repeats were supplied on 27 April 2015. There was a period of 33 days that the Applicant would not have had any medication.
8. On 27 April 2015, two repeats were dispensed. The Applicant received a double supply of Sertraline (120 tablets). There is no evidence as to why the Applicant received a double supply. The third repeat was dispensed on 29 May 2015. The Applicant would have sufficient quantity of Sertraline until 28 June 2015. There would be two repeats left on the prescription which would be a sufficient quantity of Sertraline until 27 August 2015. The Applicant would need to see Dr Bitlan to get a new prescription for any further supply of medication.
9. What the above demonstrates is that the Applicant, on the evidence provided by him to the Tribunal, has taken the prescribed medication somewhat inconsistently and that there have been significant intervals where no medication appears to have been dispensed. This is of concern, especially in the absence of any current psychiatric report, either by the treating psychiatrist Dr Puttman or by a mental health professional, (to comment inter alia on the Applicant's medications) and when the Applicant had been placed on notice prior to the hearing that the Respondent took issue with his mental health in this review proceeding. The Applicant had, on his own evidence, not been under the treatment of a psychiatrist since December 2012, shortly prior to the Tribunal's decision being handed down in April 2013. He had not received any psychiatric treatment since his previous psychiatrist, Dr Puttman, retired. He had also changed his general practitioner.

Conclusion

1. The Applicant's application for reinstatement was resisted by the Respondent. The Applicant said that he would be content to be reinstated subject to conditions, stating: "I am confident of my good mental health status now and into the future. Understanding that the Tribunal and the Commission require more evidence and assurance as to this, I am willing to submit to an independent psychiatric evaluation prior to becoming registered to ascertain my mental fitness to practise. I am also willing to make a regular review of this a condition of my registration so that the Tribunal and the Commission have ongoing reassurance of my fitness to practise."
2. Nevertheless, it is the responsibility of this Tribunal to first determine whether it is appropriate to make a reinstatement order.
3. Having regard to the statutory context in which this application is brought, we are required to consider whether the Applicant is now a fit and proper person to be registered as a pharmacist. There is ample authority to support the principle that the Applicant bears the onus of proving that a reinstatement order should be made in his favour. The standard of proof to be applied in considering any factual matters is a civil standard, namely the balance of probabilities. However, because of the protective nature of the jurisdiction which it is exercising, as is equally well recognised, the Tribunal must be comfortably satisfied that the matters are so proven.
4. In approaching this matter we have regard to the relevant objects which are found in s.3 of the Act and the need to protect the public "by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The Respondent has drawn the Tribunal's attention to the decision in Litchfield v Medical Council of New South Wales [2012] NSWMT 8, in which the Applicant had during his period of deregistration undertaken continuing education, sought mentoring and the advice of senior colleagues and had meticulously prepared his application for reinstatement. The circumstances of the Applicant in that case were said to be in stark contrast with the circumstances in the matter now before the Tribunal. We concur.
5. In Litchfield v Medical Council of New South Wales there was also a discussion of the principles pertinent to the Tribunal's consideration of what is required to be done to demonstrate that the Applicant is appropriate for reinstatement. At [12] and following the Tribunal said: "12. The starting point is that this Tribunal should not assume that a [medical] practitioner who was deregistered has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461: '…Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a credible kind has occurred. If a man has exhibited serious deficiencies in his standard of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.' 13. Furthermore, in Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42] the principles, which were originally set out in the Matter of Mansour Hassad Zaidi and the Medical Practice Act 1992 as amended (29 August 1996, unreported) and approved by the Court of Appeal in Zaidi v Health Care Complaints Commission [1998] NSWSC 335; (1998) 44 NSWLR 82 were the appropriate principles to be applied. The principles are: '… [2] An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving their case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. [3] The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the application but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients, it would be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register."
6. For the reasons advanced above, the Tribunal is not relevantly satisfied that the Applicant is a fit and proper person to be re-registered as a pharmacist. The Application is dismissed.

Costs

1. The Respondent sought an order for costs pursuant to clause 13(1) of Schedule 5D of the National Law. The Applicant resisted such an order based on impecuniosity: "The Commission is already aware of my inability to pay the costs they are seeking. I am still currently paying off the costs ordered from the original hearing, which will take several years to finalise. My tenuous financial situation, and the subsequent stress that this places on me, is one of the Commission's concerns regarding my ability to perform my duties as a pharmacist." The Applicant submitted the imposition of costs was punitive and in the nature of: "…a quasi fine imposed for merely seeking reinstatement as a pharmacist, as I was required to do through this process. As ordered by the Tribunal in the original hearing, it is my legal right to seek reinstatement, and to impose costs effectively serves as an additional punishment from the original hearing, purely for the following of the orders of the Tribunal."
2. This is a costs jurisdiction. Accordingly, costs will normally follow the event unless there are compelling reasons which would dictate otherwise. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42], Meagher JA held "mere impecuniosity is not a justifiable reason for departing from that rule" where it is usual for an order for costs to be made.
3. In Ameisen & Medical Council of New South Wales [2015] NSWCAT [OD] 49, at [90]-[92], the NSW Civil & Administrative Appeals Tribunal held: "Proceedings of the present kind arise because of the prior misconduct of the applicant, and can be seen as ancillary. While it might be said that the applicant has been 'successful', and thereby should, at the least, not be exposed to the respondent Council's costs, that misunderstands the nature of the respondent's involvement at the inquiry. As noted by the Tribunal in Kazmierczak at [54] (and set out at [76] in Parajuli): '[A]lthough the applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting applicants to the test and in ensuring that their background or at least their character is properly ventilated: that no applicant is re-registered without a sufficient investigation into what they have done since the deregistration.'" Parajuli was a case where the respondent had actively opposed the application, but the applicant had prevailed. The Tribunal continued: 'Because it was entirely appropriate for the application to have been opposed and because it was in effect the applicant's conduct which has brought about this application in any event, he should pay the costs of the application.' Here the ultimate position of the respondent was one that was not opposed to re-registration, though the ultimate decision is always that of the Tribunal. The same rule should apply."
4. It was necessary that the Respondent act as a contradictor in these proceedings. Despite the protestations of the Applicant that he is impecunious, that is no good reason why a costs order should not be made in favour of the Respondent. We order that the Applicant pay the costs of the Respondent incurred in respect of these proceedings.

Orders:

1. We make the following orders: 1. The Application is dismissed. 2. The Applicant is to pay costs of the Respondent, as agreed and failing agreement at liberty to restore. 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: 26 October 2015