Health Care Complaints Commission v Abdallah [2025] NSWCATOD 76

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186

Council of the New South Wales Bar Association v EFA (a pseudonym) (2001) 106 NSWLR 383; [2021] NSWCA 339

Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173

Health Care Complaints Commission v Bradley [2022] NSWCATOD 47

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Duggan [2015] NSWCATOD 142

Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 207

Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105

Health Care Complaints Commission v Philipiah [2013] NSWCA 342

Health Care Complains Commission v Robinson [2022] NSWCA 164

Health Care Complaints Commission v Yildirim (No 2) [2022] NSWCATOD 100

Sabag v Health Care Complaints Commission [2001] NSWCA 411

1. Disclosure of the names of the person listed as Person A and Person B in the Schedule to the Complaint is prohibited pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013.

2. Disclosure of the names of the persons identified as Persons C to I in the Schedule to these Reasons is prohibited pursuant to section 64(1) of the Civil and Administrative Tribunal Act 2013:

3. Disclosure of the names and addresses of any patients set out in the prescriptions contained in the Applicant's Exhibit A1 is prohibited pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013.

1. By application dated 23 May 2024, the Health Care Complaints Commission (the Commission) applied for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against a practitioner pharmacist Mr Ali Abdallah (the Respondent).
2. The orders sought by the Commission in the event that the complaints are approved or admitted are as follows:

(1) Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law with a non-review period of 2-3 years.

(2) A prohibition order pursuant to s 149C(5)(a) of the National Law prohibiting the Respondent from providing health services as a pharmacy assistant, a pharmacy dispensary or pharmacy manager, for the same period as any non-review period imposed.

(3) An order that the Respondent pay the Commission's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law.

1. At the hearing on 7 April 2025 the Commission withdrew its application for a prohibition order as set out in subparagraph (2) above.
2. The Commission relies on two complaints in support of its application. The first is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the Respondent has:

(1) engaged in conduct that demonstrates the knowledge and judgment possessed and care exercised by the practitioner in the practice of pharmacy as significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or

(2) engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.

1. The second complaint is that the Respondent is guilty of professional misconduct under s 139E of the National Law in that he has:

(1) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or

(2) 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 Respondent's registration.

1. The Respondent was first registered as a pharmacist on 6 February 2008. At the relevant times he was the sole proprietor of Hornsby 4 Less Pharmacy (the Pharmacy) at Hornsby, New South Wales.
2. The Respondent completed his internship at West Ryde Pharmacy in order to become registered in 2008. He commenced working at the Pharmacy as a locum in or around 2008 and purchased a share in the pharmacy as a junior partner/proprietor in 2010. In November 2012, he purchased the remaining share of the pharmacy and has been the sole proprietor since that date.
3. Until late 2020 he held ownership interests in three pharmacies in New South Wales and five pharmacies in Victoria.
4. The Pharmacy was subjected to an investigation triggered by notification by the Respondent of loss or theft of Schedule 8 drugs and Schedule 4, Appendix D drugs on 25 May 2020 sent to the Pharmaceutical Regulatory Unit (the PRU), which produced a report dated 1 June 2021.
5. Shortly thereafter the Pharmacy Council of New South Wales conducted s 150 proceedings under the National Law on 23 July 2021.
6. As a result of those proceedings the Respondent's registration was suspended with effect from 29 July 2021. That suspension remains at the time of the hearing.

1. Section 139B of the National Law is concerned with either an act or omission on the part of a practitioner.
2. Determining whether a practitioner is guilty of unsatisfactory professional conduct by reason of s 139B(1)(a) involves an objective assessment of the practitioner's conduct against the standards of conduct expected of an equivalent practitioner.
3. Determining that issue requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such (Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [25]).

1. Professional misconduct is not defined in the National Law.
2. In relation to what constitutes professional misconduct, it was held in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [20] by his Honour Justice Basten as follows:

"There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1)."

1. The determination of whether the conduct amounts to professional misconduct has, as its starting point, an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
2. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment (Sabag v Health Care Complaints Commission [2001] NSWCA 411 (Sabag) at [82] per Sterling J). In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper or reasonably expected standards (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWSC 207). See, too: Health Care Complaints Commission v Muthukrishna [2024] NSWCATOD 105 at [10].

1. The Commission tendered a volume of documents which included materials created as a result of the s 150 hearing, the PRU investigation report following the notification referred to above, statements to the Police, and correspondence with the Pharmacy Council.
2. In addition, the Commission relied on an expert report provided by Dr Helen Benson dated 30 April 2023 and supplementary comments by Dr Benson in correspondence with the Commission on 9 September 2024.
3. The Respondent relied upon a volume of documents including his report to the Director-General of the Ministry of Health dated 26 May 2022, a report to the Provider Benefits Team dated 28 May 2020, Police statements, submissions to the Pharmacy Council in relation to the proceedings taken against him, standard operating procedures which the Respondent had updated or put in place at the Pharmacy and evidence of his continuing professional development.
4. The Respondent further tendered, without objection, a statement dated 13 September 2024 which he affirmed on oath whilst giving evidence. The Respondent was cross examined.
5. The Commission carries the burden of proving, on the balance of probabilities, the matters particularised in the complaint. Given the seriousness of the allegations the Tribunal must approach its task within the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, namely, to feel actual persuasion of the conduct and comfortably satisfied that it occurred.

1. Particulars 1 and 2 concern the dispensing of Schedule 4B medication to a patient described as Patient A during the period 15 July 2020 and 2 February 2021 in quantities and on specified dates, within short intervals of time, such that the quantity dispensed did not accord with registered therapeutic standards, in accordance with cl 54 of the Poisons and Therapeutic Goods Regulation 2008 (the PTGR). Further, it is set out that during that period the Respondent failed to conduct adequate audits of the dispensing of Schedule 4B medications and failed to ensure his employed pharmacists were aware of the appropriate intervals of dispensing of Schedule 4B medications.
2. The Respondent has admitted these Particulars.
3. Particular 3 concerns Patient B and it is claimed that on 19 January 2021 the Respondent permitted to be dispensed by an employed pharmacist at the Pharmacy, the Schedule 4 drug Pregnyl to Patient B in circumstances where:

(a) the supply was not for the purpose that accorded with the recognised therapeutic standard, contrary to cl 54 of the PTGR;

(b) as of 17 December 2020 the Respondent was aware that between 6 August 2020 and 14 December 2020, Schedule 4 medications had been inappropriately supplied to Patient B at the Pharmacy; and

(c) despite being aware of inappropriate dispensing particularised above the Respondent failed to take adequate or sufficient steps to ensure that his employed pharmacists were aware of the circumstances in which it was appropriate to supply the drug Pregnyl.

1. The Respondent has admitted paragraph (b) but does not admit paragraph 3(a) or 3(c).
2. In cross examination the Respondent testified that he developed and implemented written policies and procedures, including in relation to the dispensing of Schedule 4 medications within six months of discovering missing prescription drugs in May 2020. He always had generic policies and procedures but he added to them to improve systems and to deal with the issues that had been identified by the PRU.
3. The Respondent also testified that he implemented formal staff training and regular meetings starting in 2021 and he discussed the new policies and procedures including in relation to Schedule 4 medicines.
4. The Respondent's evidence was that dispensing of these medications by an employed pharmacist Mr Akawee was in contravention of the policies and procedures implemented at the Pharmacy and the actions of that employee were undertaken by him despite additional training provided.
5. The Respondent admitted that on 19 January 2021 the employee dispensed the drug Pregnyl contrary to cl 54 of the PTGR. The Respondent accepted that there were issues with his oversight of Mr Akawee's work. However, he wished to point out that the fraudulent prescriptions used by Mr Akawee were a very, very small part of his dispensing activity. The Respondent did not have a process in place for reviewing and auditing those prescriptions, but even if he did, he said it seemed unlikely to him that he would have come across one of them.
6. On the evidence before us we are not satisfied that the Commission has established Particulars 3(a) and 3(c).
7. Particulars 4 and 5 concern the employment of a person, Mr Hamza Zoghbi. Particular 4 states that between approximately July 2019 and May 2020, the Respondent "inappropriately employed" Mr Zoghbi as a pharmacy manager and dispense technician at the Pharmacy without undertaking an appropriate background check.
8. Particular 5 sets out that between approximately July 2019 and May 2020, the Respondent inappropriately gave this employee possession of keys to the Pharmacy and a code to the Pharmacy's alarm system.
9. The Respondent admitted that he employed Mr Zoghbi as a non-pharmacist manager, denies that he was employed as a dispensary technician, admits that he was employed without undertaking appropriate background checks, says that this person was recommended to the Respondent by Pharmacy 4 Less Head Office which had interviewed him and the Respondent believed that "Head Office" would have conducted the appropriate background checks before making the recommendation.
10. In respect of Particular 5 the Respondent admits the paragraph but says further that this employed manager was not in possession of the access code to the safe which contains keys to the Schedule 8 drug safe.
11. In relation to Particulars 4 and 5 the Commission relies on the evidence of Ms Benson. She had a concern of the lack of background checks in relation to the fact that Mr Zoghbi was no longer registered at the time of employment and the reason for that. She said "the AHPRA website enables very quick review of any conditions imposed and the reasons for them and the fact that Mr Zoghbi was no longer registered should have prompted Mr Abdallah to make these enquiries".
12. In relation to the employment of Mr Zoghbi the Respondent had an informal interview with him. He stated in evidence that he was very charismatic, positive and personable and made a very good first impression as a people manager, very different from the previous manager.
13. Mr Zoghbi advised him about an issue with his registration. The Respondent recalls that he said that he had been working in some other business for a while and had just forgotten to renew his registration. Mr Zoghbi explained that he more or less just needed to pay for his registration and that it would come through in a couple of weeks.
14. The Commission has not established that at the time of employing Mr Zoghbi he was employed as a dispense technician. We are not satisfied that failure to make enquiries by way of background checks in the employment of an employee as an office manager is in the circumstances "inappropriate conduct" or conduct within the scope of unsatisfactory professional conduct. Particular 4 is not made out.
15. The Respondent says that he was unaware of the requirement at the time that Mr Zoghbi should not have had either the keys to the Pharmacy or the alarm code.

1. Particulars 6 to 13 concern various conduct in relation to Schedule 8 drugs.
2. Particular 6 states that on 2 January 2020 the Respondent permitted Mr Zoghbi to record in the Pharmacy's electronic Schedule 8 drug register that he, Mr Zoghbi, had to destroy Schedule 8 drugs set out in a schedule to this Particular contrary to cl 8.7 of the Guide to Poisons and Therapeutic Goods Legislation for Pharmacists.
3. In reply, the Respondent says that the Pharmacy had a policy in place for the destruction of Schedule 8 drugs, that Mr Zoghbi was neither entitled, nor permitted, to make such entries in the register or arrange destruction of Schedule 8 drugs.
4. The Respondent, however, admits that Mr Zoghbi recorded the destruction of Schedule 8 drugs on 2 February 2020 contrary to cl 8.7 of the Guide to Poisons and Therapeutic Goods Legislation for Pharmacists.
5. Particular 7 is that between approximately September 2018 and June 2021 the Respondent failed to conduct audits of the dispensing of Schedule 8 drugs at the Pharmacy. The Respondent admits that Particular.
6. Particular 8 was not pressed.
7. Particular 9 sets out that the Respondent's conduct particularised at Particular 7 failed to detect various irregularities, namely:

(a) 6 computer generated prescriptions for Schedule 8 medications between September 2018 and November 2020 where the prescriptions did not comply with various provisions of the PTGR, namely, cl 80(2), (3) and (4)(b);

(b) 4 prescriptions for Schedule 8 medications were altered otherwise than by the authorised practitioner who had issued them during the period September 2019 and September 2020 contrary to cl 88(1)(g) of the PTGR;

(c) 3 prescriptions for Schedule 8 medication were not endorsed with an authority number issued by the Ministry of Health yet dispensed between April 2020 and September 2020 contrary to cl 90 of the PTGR;

(d) on dates unknown, 3 prescriptions for Schedule 8 medications were dispensed despite the prescription not containing the date of the prescription, contrary to cl 85(1) of the PTGR;

(e) on 20 occasions between January 2020 and May 2020 Schedule 8 drugs were dispensed to various patients in the quantities set out in an annexure to the Complaint in circumstances where the prescriptions were written by the same medical practitioner and did not contain the patients' addresses contrary to cl 85(1) of the PTGR.

1. The Respondent has admitted Particular 9. We note that the Regulations relied upon impose strict liability on a practitioner who "must ensure" or "must not" engage in the specified conduct.
2. Particular 10 claims that between October 2020 and November 2020, the Respondent permitted to be dispensed at the Pharmacy Schedule 8 drugs in the quantities set out in an annexure to the Complaint in circumstances where:

(a) the prescriptions were forged;

(b) the dispensing pharmacist ought to have known or suspected that the prescriptions were forged because the prescriptions all contained the same handwriting;

(c) the dispensing pharmacist ought to have known or suspected that the prescriptions were forged because the prescriptions were commonly not signed by the prescriber as required by cl 80(2) of the PTGR;

(d) the dispensing pharmacist ought to have known or suspected that the prescriptions were forged because the prescriptions commonly included an illegible prescriber name contrary to cl 86(1)(d) of the PTGR;

(e) the dispensing pharmacist ought to have known or suspected that the prescriptions were forged because the prescriptions commonly did not include an adequate direction for use as required by cl 80(1)(d) of the PTGR;

(f) the dispensing pharmacist ought to have known or suspected that the prescriptions were forged because the prescriptions commonly did not include a legible patient address contrary to cl 86(1)(d) of the PTGR.

1. The Respondent has admitted Particular 10.
2. Particular 11 states that between 2019 and December 2020 the Respondent permitted to be dispensed in the Pharmacy, Schedule 8 drugs from hospital prescriptions in the quantities set out in Annexure E to the Complaint on 7 occasions without the dispensing pharmacist recording the prescription reference number contrary to cl 112(1)(d)(i) of the PTGR, and the name of the authorised practitioner by whom the prescription was issued contrary to cl 112(1)(d)(ii) of the PTGR.
3. The Respondent has admitted Particular 11.
4. Particular 12 states that between 11 May 2020 and 10 August 2020 the Respondent permitted his employed pharmacist to dispense Schedule 8 medications in the quantities and on the dates set out in Annexure F to the Complaint to residential aged care facilities without prescriptions contrary to s 4.5 of the Guide to Poisons and Therapeutic Goods Legislation for Pharmacists and cl 85(1) of the PTGR (on 74 occasions).
5. The Respondent admits Particular 12.
6. Particular 13 is that as at 1 June 2021 the Respondent was unable to account for the Schedule 8 drugs in the quantities set out in Annexure G to the Complaint which were received by the Pharmacy between 1 October 2019 and 5 February 2021.
7. The Respondent has admitted Particular 13 and says in his reply that the medications identified in the Annexure were stolen from the Pharmacy by Mr Zoghbi.
8. The Respondent in his statement also admitted the failure to detect the dispensing activity which occurred and said he was unaware of it until it was raised by the PRU.
9. The Respondent has admitted that his oversight and systems in the Pharmacy were inadequate and did not meet the requisite standards. In relation to the conduct of Mr Zoghbi he described in evidence the system of audits that he in fact did have in place. He accepts that the medications in question are high risk in the wrong hands.
10. The Respondent acknowledged that he had stretched himself too thin and failed to exercise appropriate levels of oversight, placing too much trust in his staff to comply with what was required of them.
11. The Respondent said that for many years he had a very experienced registered pharmacist, Mr Ahmad Youssef, conduct biannual audits of the Pharmacy's controlled substances. Because of Mr Ahmad Youssef's focus in aged care, he was very good at conducting the audits and identifying any issues. The Respondent himself was sometimes present for those audits, but even if he was not, he was available to discuss any issues which arose from them throughout the period and he reviewed the outcome of the audits and took steps to address any issues raised.
12. Mr Ahmad Youssef conducted an audit in December 2019 which did not reveal any discrepancies in relation to the Pharmacy's controlled substances or stock. The outcome of that audit reassured the Respondent that Mr Zoghbi was managing the Pharmacy and staff well.
13. However, the May 2020 audit picked up what are described as some concerning issues very quickly. Mr Ahmad Youssef called the Respondent as soon as he identified an issue with a volume of Schedule 8 medication ordering and private scripts with high volumes. He emailed to the Respondent documents about that and asked to meet later that evening.
14. The Respondent examined the issues in relation to Schedule 8 medications and there were two fairly obvious red flags to him. The first was the volume of the ordering which was quite a lot higher than usual. The Pharmacy does a lot of aged care custom and so its ordering is high anyway, but the level shown at the May 2020 audit was suspiciously high. The second red flag was that the audit showed a lot of private scripts dispensed in large quantities to nursing home patients.
15. The Respondent immediately called Mr Zoghbi and requested a meeting with him at 7.00am the next morning. He asked Mr Zoghbi what was going on and was told that the issue must be because of pharmacists marking scripts for aged care, with prescribers sending only one prescription to cover several owing prescriptions. Mr Zoghbi was asked to find the prescriptions he referred to and to produce them.
16. At the meeting the following day Mr Zoghbi did not bring the prescriptions asked for. The Respondent asked Mr Ahmad Youssef to continue investigating the issues in the background, which occurred. It was suspected that Mr Zoghbi was behind the issue when the Respondent and Mr Ahmad Youssef uncovered large amounts of Schedule 8 medication dispensing under initials "HZ" and "LC". "HZ" were the initials of Mr Zoghbi and "LC" was a dummy set of initials used by the Pharmacy's software providers and IT support.
17. The Respondent was most concerned by what he was uncovering. Investigations continued and on digging a little deeper he and Mr Ahmad Youssef identified that a number of deliveries from the Pharmacy's wholesaler (API) had not been entered into the drug register and were missing.
18. After uncovering that Mr Zoghbi was behind the issues of concern the Respondent arranged another urgent meeting, this time with Mr Zoghbi, Mr Ahmad Youssef and two senior pharmacists on 25 May 2020 at the Pharmacy 4 Less Head Office in Chullora. During this meeting Mr Zoghbi admitted to falsely dispensing numerous private prescriptions which never existed and stealing drugs from the Pharmacy, including those not identified on the report.
19. As a result and during the meeting the Respondent terminated Mr Zoghbi's employment with immediate effect. He promptly changed the locks and alarm code to the Pharmacy, changed the pin code to the safe which held the key to the Schedule 8 safe and took other measures to ensure that the safe was out of sight.
20. On 26 May 2020 the Respondent made a report to the Director-General of the Ministry of Health about the discrepancies and fraudulent activity on the part of Mr Zoghbi. He advised that he had terminated Mr Zoghbi's employment and outlined the additional steps he had taken to make appropriate notifications and seek advice.
21. On 28 May 2020, after further investigations revealed possible fraudulent PBS claims relating to Duodopa, the Respondent notified the Provider Benefits team within the Department of Health and Ageing, i.e. Medicare, of what occurred.
22. The Respondent says that in short Mr Zoghbi appeared to be submitting PBS claims for stock that he was stealing from the Pharmacy so that his thefts would not be obvious in the Pharmacy's finances and so items would not be missed. The majority of these items were not Schedule 8 medications. The result of this was that the month-to-month accounts looked normal.
23. The result of the notification to Medicare was that an inspector came to the Pharmacy. The Respondent assisted the inspector with an audit and ultimately received a debt of $1.2 million which he is still paying off.
24. The Respondent also notified the New South Wales Police on 28 May 2020 and provided various statements in support of his complaint.
25. The Respondent summarised the results of the investigation into Mr Zoghbi's thefts and the ways that he had tried to conceal them. The outcome of the investigation revealed that:

(a) Mr Zoghbi had somehow "intercepted" deliveries from API before the invoices had been confirmed in the software of the Pharmacy and had used his access to the software to reduce the level of certain items of Schedule 8 medications received. That had the effect of pushing that reduced number through to the electronic Dangerous Drug Book (DD Book) which was later confirmed by a staff pharmacist. It appears that the stock was simply just taken by Mr Zoghbi from the box which had been delivered to ensure that the DD Book was balanced.

(b) Mr Zoghbi had dispensed non-existent private prescriptions to nursing home patients no longer serviced by the Pharmacy for large amounts of Schedule 8 medications. It also appeared likely that Mr Zoghbi then stole that stock from the safe so that the DD Book and stock on hand balanced, and then deleted the transaction from the point of sale software so that the nursing home was not invoiced.

(c) Mr Zoghbi created fictional inter-store transfers which recorded that stock had been transferred from the Pharmacy to a different entity, which would then result in stock being adjusted in the software and electronic DD Book.

(d) The investigation also revealed the medication involved was not just Schedule 8 medications, but other Scheduled medications and front of Pharmacy stock was involved. As part of investigating those issues it was discovered that Mr Zoghbi had been making claims on the PBS to avoid detection of those issues, so that money was coming in for that stock so it appeared that it had been validly supplied.

1. Particulars 14 and 15 deal with Schedule 3 drugs.
2. Particular 14 states that between January 2020 and December 2020 the Respondent permitted the Pharmacy to supply products containing the Schedule 3 drug Pseudoephedrine in the quantities set out in Annexure 8 to the Complaint in circumstances where the name of the person by whom the substance was supplied was not recorded, contrary to cl 24(1A) of the PTGR.
3. The Respondent has admitted Particular 14.
4. Particular 15 states that between January 2020 and December 2020 the Respondent permitted the Pharmacy to supply products containing the Schedule 3 drug Pseudoephedrine in the quantities set out in Annexure I to the Complaint by persons who were not registered pharmacists.
5. The Respondent has denied Particular 15 and says that the products in question were supplied by pharmacists and incorrect and non-compliant record keeping practises at the Pharmacy allowed the initials of some pharmacist staff to be attributed to the supply of those products.
6. In support of this Particular the Commission refers to the analysis carried out by the PTU. That evidence does not in any way illustrate how the Respondent "permitted" the Pharmacy to supply these products.
7. The Respondent testified that the pharmacist had handed out the medication but the dispensing technician recorded it on the software. To the extent that was a deficiency changes were made to address the issue.
8. The Commission has not made out Particular 15.

1. Particulars 16, 17 and 18 deal with the Respondent's Opioid Treatment Program.
2. Particular 16 states that the Respondent failed to discharge his obligations as the proprietor of the Pharmacy by permitting the Pharmacy to hold subsidiary registers for methadone for the weeks ending 15 December 2019, 17 May 2020 and 29 November 2020 which:

(a) recorded two brand names of methadone contrary to cl 8.5 of the Guide to Poisons and Therapeutic Goods Legislation for Pharmacists and cl 6.3 of the NSW Opioid Treatment Program Community Pharmacy Dosing Protocol TG201/4;

(b) included entries that were scribbled over contrary to cl 8.5 of the Guide to Poisons and Therapeutic Goods Legislation for Pharmacists and regulation 177(2) of the PTGR;

(c) included entries that were covered with a dispensary label and/or liquid paper, contrary to cl 8.5 of the Guide to Poisons and Therapeutic Goods Legislation for Pharmacists and regulation 177(2) of the PTGR;

(d) did not record the prescribers' number and prescription numbers contrary to cl 6.4 of the NSW Opioid Treatment Program Community Pharmacy Dosing Protocol TG201.

1. The Respondent has admitted Particular 16.
2. Particular 17 states that between 15 December 2019 and 29 November 2020 the Respondent failed to ensure that pharmacists employed at the Pharmacy when dispensing methadone and buprenorphine adhered to cl 8.5 of the Guide to Poisons and Therapeutic Goods Legislation for Pharmacists, regulation 177(2) of the PTGR and the NSW Opioid Treatment Program Community Pharmacy Dosing Protocol and also failed to intervene in respect of the inadequacies in the Pharmacy's subsidiary registers for methadone particularised in Particular 16.
3. The Respondent has admitted Particular 17.
4. Particular 18 is that as at 17 December 2020 the Respondent failed to implement and enforce a practice at the Pharmacy where daily total quantities of methadone and buprenorphine dispensed were recorded in the Main Drug Register, contrary to cl 6.4 of the NSW Opioid Treatment Program Community Pharmacy Dosing Protocol.
5. The Respondent has admitted Particular 18.
6. The Respondent accepts that the issues concerning this program are a result of his failure to provide adequate oversight and because he had allowed his own knowledge of Opioid Treatment Program to slip as a result of being stretched too thin operating his various pharmacies. He has since updated his knowledge.
7. The Respondent also stopped providing these services from the Pharmacy.
8. The Commission has thus established all the particulars in relation to Opioid Treatment Program.

1. Particulars 19 to 26 contain allegations of conduct on the part of the Respondent that he failed to meet his obligations as a proprietor.
2. Particular 19 states that between approximately 2018 and July 2020 the Respondent failed to physically attend the Pharmacy premises at sufficiently frequent intervals for the purposes of attending staff meetings and reviewing Pharmacy operations.
3. Particular 20 states that by his conduct particularised in Particular 19 the Respondent acted contrary to Guideline 1 of the Guidelines for Proprietor Pharmacists September 2015.
4. The Respondent has admitted Particulars 19 and 20.
5. Particular 21 states that between approximately 2 January 2020 and 1 June 2021 the Respondent failed to discharge his obligations as the proprietor of the Pharmacy by failing to:

(a) review the record of destruction referred to in Particular 6 for the purpose of assessing the appropriateness of the destruction;

(b) maintain an awareness that on or about 2 January 2020, his unregistered pharmacist employee, Mr Zoghbi, recorded Schedule 8 drugs as destroyed on the electronic Drug Register; and

(c) ensure that cl 8.7 of the Guide to Poisons and Therapeutic Goods Legislation for Pharmacists was being complied with at the Pharmacy in respect to the destruction of Schedule 8 drugs.

1. The Respondent has admitted Particular 21 and attributes the failures to his sporadic attendance at the Pharmacy and lack of oversight of his staff, in part by reason of the multiple pharmacies in which he had a financial interest and oversight responsibility.
2. Particular 22 states that between approximately 1 January 2019 and 5 February 2021 the Respondent failed to personally undertake any stock checks at the Pharmacy.
3. The Respondent admits Particular 22 but points to the biannual stock checks and involvement of Mr Ahmad Youssef referred to above and to the measures that were in place at the relevant time. The Respondent was not required to personally conduct the audits.
4. Particular 23 states that between October 2020 and November 2020 the Respondent failed to implement and monitor adherence to appropriate policies and procedures to detect and report forged or suspected forged prescriptions present at the Pharmacy.
5. The Respondent admits Particular 23.
6. Particular 24 is that between the period of approximately January 2019 and December 2020, the Respondent failed to discharge his obligations as the proprietor of the Pharmacy when he:

(a) failed to maintain an awareness of the manner in which hospital prescriptions were dispensed at the Pharmacy;

(b) permitted drugs to be dispensed from the Pharmacy from hospital prescriptions in the circumstances as particularised in Particular 11;

(c) failed to ensure that the Pharmacy was compliant with cl 112(1)(d) of the PTGR;

(d) failed to ensure his employed pharmacists were aware of cl 112(1)(d) of the PTGR; and

(e) failed to intervene where necessary in respect of the Pharmacy's adherence to cl 112(1)(d) of the PTGR.

1. The Respondent has admitted Particular 24.
2. Particular 25 is that between 1 January 2020 and 17 December 2020 the Respondent failed to discharge his obligations as the proprietor of the Pharmacy when he:

(a) failed to maintain an awareness of the manner in which the Schedule 3 drug Pseudoephedrine was supplied at the Pharmacy;

(b) permitted the Schedule 3 drug, Pseudoephedrine, to be supplied by the Pharmacy as set out in Particulars 14 and 15 of this Complaint;

(c) failed to ensure that the pharmacists employed at the Pharmacy were compliant with:

(i) cl 24(1A) of the PTGR; and

(ii) a requirement for Pseudoephedrine to be supplied by a registered pharmacist;

(d) failed to ensure his employed pharmacists were aware of:

(i) cl 24(1A) of the PTGR; and

(ii) a requirement for Pseudoephedrine to be supplied by a registered pharmacist;

(e) failed to intervene where necessary in respect to:

(i) the pharmacists employed at the Pharmacy's adherence to cl 24(1A) of the PTGR; and

(ii) non-pharmacists supplying Pseudoephedrine.

(a) admits subparagraph (a);

(b) responds to subparagraph (b) and repeats his answer to Particulars 14 and 15 of the Particulars;

(c) in response to subparagraph (c):

(i) admits he failed to ensure his employed pharmacists were compliant with cl 24(1A) of the PTGR; and

(ii) denies Pseudoephedrine was supplied by a person other than a registered pharmacist;

(d) in response to subparagraph (d):

(i) admits he failed to ensure his employed pharmacists were aware of the requirement of cl 24(1A) of the PTGR; and

(ii) denies his employed pharmacists were not aware of the requirement for Pseudoephedrine to be supplied only by a registered pharmacist;

(e) in response to subparagraph (e):

(i) admits he failed to intervene in respect of the Pharmacy's adherence to cl 24(1A) of the PTGR; and

(ii) says he was not required to intervene in relation to the issue of non-pharmacists supplying Pseudoephedrine, as no such issue was present at the Pharmacy.

1. In relation to subparagraph (b) of Particular 25, we note that Particular 14 was admitted but Particular 15 has not been made out.
2. In cross examination the Respondent said in relation to Particular 25(c)(ii) that the Pseudoephedrine was supplied by a pharmacist, as it was the practice at the time that it had to be supplied by a pharmacist. In relation to Particular 25(d)(ii) the Respondent said that he had a written policy in this regard and had discussed the issue with his pharmacists.
3. We are not satisfied that the Commission has proven Particular 25(c)(ii) or 25(d)(ii) to the requisite standard but otherwise the Particulars have been made out.
4. Particular 26 states that between 17 December 2020 and 19 January 2021, the Respondent did not discharge his obligations as the proprietor of the Pharmacy when he failed to:

(a) ensure that the Pharmacy was compliant with cl 54 of the PTGR in respect of the supply of Schedule 4 drugs;

(b) ensure his employed pharmacists were aware of cl 54 of the PTGR in respect of the supply of Schedule 4 drugs; and

(c) train and support his staff in respect to the proper dispensing of Schedule 4 drugs.

1. The Respondent has admitted Particulars 26(a) and (b) but has denied subparagraph (c) and says that he provided training, education and support to his staff in respect of the proper dispensing of Schedule 4 drugs.
2. The Commission has not established Particular 26(c).
3. Particular 27 states that the conduct in Particulars 1 to 26 are repeated and relied upon in combination as a course of conduct involving a failure of a practitioner to adequately oversee the operations of the Pharmacy, amounting to unsatisfactory professional conduct.
4. The Respondent admits this Particular.

1. In our view, the benchmark standard which is expected of practitioners required oversight, systems, checking, and education to prevent, as far as possible, the conduct as established in the Particulars and admitted.
2. There were multiple failures or omissions in the conduct of the Pharmacy over a period of time with potential harm to the public.
3. We are satisfied, and find, that the proven conduct was significantly below the standard reasonably expected of a pharmacist proprietor of the Pharmacy. We are reinforced in that view by the admissions made by the Respondent and the expert evidence of Ms Benson.
4. Accordingly, the Respondent's conduct must be characterised as unsatisfactory professional conduct pursuant to 139B(1)(a) of the National Law.

1. The Respondent has admitted that, considered together, the allegations admitted in relation to Complaint 1 are sufficient to constitute professional misconduct pursuant to s 139E of the National Law.
2. We are also satisfied that, as admitted, the proven conduct in Complaint 1, considered together, is sufficiently serious to justify such an order. The nature of the failures and the potential seriousness of the consequences from the dispensing or supply of Scheduled medication are significant. The multiple failures proven lead us to comfortably conclude that the Respondent engaged in professional misconduct.

1. In exercising its powers, the Tribunal must observe the objectives and guiding principles of the National Law, the paramount consideration being to ensure the protection of the health and safety of the public (s 3B, formerly s 3A).
2. In Health Care Complaints Commission v Do [2014] NSWCA 307 (Do), Meagher JA (with whom Basten and Emmett JJA agreed) held at [35]:

"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."

1. The protective objectives under the National Law thus encompass considerations of specific and general deterrence, as well as upholding public confidence in the standards of the profession, including by denouncing misconduct as unacceptable (Do at [35]). It is an error for the Tribunal to focus only on the protection of the public from further malpractice or misconduct by the particular practitioner. The Tribunal must also address the public interest in having a practitioner's conduct denounced as unacceptable (Do at [39]).
2. The relevant principles to be applied have also been set out in a number of decisions of the Tribunal. For example, in Health Care Complaints Commission v Duggan [2015] NSWCATOD 142, the Tribunal approached the issue as follows at [42]-[43]:

"[42] The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions.

[43] In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection":

(a) Any need to protect the public against further misconduct by the practitioner;

(b) The need to protect the public through general deterrence (of other practitioners);

(c) The need to protect the public by reinforcing high professional standard and denouncing transgressions;

(d) The maintenance of public confidence in the profession;

(e) The desirability of making available to the public any special skills possessed by the practitioner."

1. In Health Care Complaints Commission v Bradley [2022] NSWCATOD 47, the relevant principles, as stated on many occasions by earlier decisions of the Tribunal considering the making of protective orders, were stated to include the following (at [101]):

"(1) the protection of public safety and health is paramount; National Law, s 3A;

(2) public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a);

(3) the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91];

(4) protective orders also involve 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: Prakash at [91];

(5) the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Wales Bar Association v Meakes [2006] NSWCA 340;

(6) whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82];

(7) the protective order should be 'the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)': Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]- [114];"

1. The finding of professional misconduct exposes the Respondent to the possibility of his registration being suspended or cancelled, but that outcome is not automatic: Chen at [14] per Basten JA. The Tribunal's choice of appropriate order following a finding of professional misconduct involves a "matter of degree and judgment" of seriousness sufficient to warrant deregistration (see, e.g. Sabag at [82]). The decision is thus discretionary.
2. In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 (Kesserwani), the Tribunal considered the question of denouncement of misconduct and the impact of a reprimand. It was held at [104]-[105]:

"[104] The real issue is whether a suspension, as opposed to a reprimand, adequately serves to denounce Dr Kesserwani's conduct. A reprimand is self-evidently a "lighter" disciplinary measure than suspension.

[105] There is no doubt that Dr Kesserwani's conduct ought to be denounced. These proceedings are, in effect, denunciatory. An order to issue Dr Kesserwani with a reprimand, which will appear on the public record of his registration maintained by the Australian Health Practitioner Regulation Agency, also serves to denounce his conduct. While in exercising the power to make disciplinary orders, the protection of the health and safety of the public is the paramount consideration, nonetheless the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed). In our view, the orders proposed by Dr Kesserwani serve to denounce his conduct and, in addition, take into account the objective and subjective features of this case. In addition, they take into account that four and a half years have now passed since the Council imposed a series of conditions on Dr Kesserwani's registration with which he has fully complied."

1. Further, in Health Care Complaints Commission v Yildirim (No 2) [2022] NSWCATOD 100, the Tribunal drew attention to the need to also take into account an individualised and proportioned approach at [17]:

"There can be no argument that Mr Yildrim's conduct must be denounced. The issue is whether as the Commission implicitly submits, any order short of cancellation, fails to achieve that objective. In exercising the power to make protective orders, the form of order must be proportionate (which takes into account the public interest) and individualised (which takes into account the actual person upon whom measures are imposed): Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [105]. We have concluded that in the circumstances of this case, cancellation would amount to what Basten JA described in Chen at [14], as an 'unreasonable or disproportionate exercise of the power' conferred on the Tribunal."

1. In Health Care Complains Commission v Robinson [2022] NSWCA 164 it was held at [31] (per Kirk JA):

"The question is whether or not the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. The conduct 'must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances': Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Thus the Tribunal can make an order less severe than suspension or cancellation even though it has previously found that the conduct was sufficiently serious to justify such a remedy: Karalasingham at [67]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [65]; note similarly EFA at [163]-[164]. For example, it may be that the subjective circumstances of the practitioner militate against such an order: note EFA at [171]-[172]."

1. The reference to EFA in that passage is a reference to the decision of the Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339.
2. The Respondent accepted in his evidence that he failed to adequately oversee the Pharmacy and attend regularly to ensure that all his proprietor obligations were met. He admitted that he stretched himself too thinly given the number of pharmacies he was seeking to oversee as proprietor or with proprietor interests. Such failures cannot be condoned.
3. The Respondent has, however, after the discovery of the issues giving rise to the Complaints taken numerous steps to improve the nature and standard of his practice of Pharmacy including:

(a) implementing changes to the delivery procedure at the Pharmacy to ensure dispensary items are only received by pharmacists;

(b) updated the Pharmacy's dispensing procedures;

(c) created a Schedule 8 dispensing checklist displayed in the dispensary as a reference point for dispensing pharmacists;

(d) renewed and updated the Pharmacy's risk management procedures and policies;

(e) implemented a new auditing procedure whereby the Pharmacy reconciles all Schedule 8 deliveries, prescriptions and records against the Schedule 8 register on a quarterly basis;

(f) educated all staff on the importance of correctly following procedures, including being vigilant about the legal requirements of prescriptions and red flags;

(g) educated staff on the correct procedures for the supply of Pseudoephedrine and use of "PROJECT STOP";

(h) began holding staff meetings on a fortnightly basis with set agendas in which he provided training;

(i) communicated and enforced a "no script, no supply" policy to eliminate all owing prescriptions for nursing homes;

(j) stopped offering opioid treatment program services;

(k) attended various CPD workshops and courses, including in dispensing.

1. The Respondent also attended mentoring sessions with an experienced Pharmacist, Mr Paul Sinclair, approximately once per fortnight between July 2021 and October 2022. He testified that his time with Mr Sinclair helped him to understand how to effectively conduct regular audits of prescriptions and stock and other operations of his pharmacies, to put him in the best position to pick up problems at an early stage, the importance of conducting more regular staff meetings and the importance of clearly recording the things that he did to ensure compliance with his obligations at the Pharmacy.
2. The Respondent testified that his mentoring sessions with Mr Sinclair prompted him to review his management and leadership style. As the proprietor of a pharmacy, leading by example was, he understood, important.
3. Recognising the difficulty of managing multiple pharmacies the Respondent also commenced divesting himself of interests in various pharmacies. His evidence at the hearing was that he is currently seeking to dispose of all his interests in pharmacies by the end of the year. He has already entered into a contract to sell the Pharmacy at Hornsby. His intention is to operate as a Pharmacist, not to have proprietor interests in any pharmacies. His plans are to be an employed Pharmacist in New South Wales and not to have any interstate interests.
4. The Commission argued that there was a need for specific deterrence. However, it accepted that the need has been lessened by reason of the Respondent's intention to divest himself of all proprietary interests in pharmacies, if carried through.
5. It was also accepted by the Commission that the Respondent had learned lessons as a proprietor and specific deterrence was at the lower end in this case.
6. In relation to general deterrence the Commission argued that a message should be sent to the profession that if proprietors spread themselves too widely issues of the kind the subject of this complaint could arise and drugs could enter the community. A strong message should be sent in that regard.
7. The Commission argued the need to reinforce, by cancellation, the obligation on proprietors to take a hands-on role to manage their pharmacies, endorse the Codes of Practice and to take seriously their responsibilities. Proprietors are not to turn a blind eye to their obligations and must be aware of the consequences, by way of cancellation, of such conduct. Cancellation with a non-review period was necessary, it was argued, as a means of censuring the Respondent's conduct and sending a strong message, both specifically to the Respondent but also to other practitioners more broadly, that the misconduct of the type established in the proceedings cannot be condoned.
8. The Respondent argued that he has accepted the shortcomings in the oversight of the Pharmacy. There was no suggestion of inadequacy in his own dispensing practice. He has been a pharmacist for 13 years.
9. In relation to general deterrence the Respondent argued that the principles could be satisfied without cancellation. Cancellation was not necessary for protective purposes.
10. The Respondent argued that adequate protections would be in place through a reprimand, the imposition of conditions and, potentially, if deemed necessary by the Tribunal a period of suspension.
11. It was contended that the need for denouncement of the Respondent's conduct would be achieved through a finding of professional misconduct and a reprimand.
12. The need to send a message to other practitioners and the public would be satisfied by the Tribunal emphasising that failures of the kind found could give rise to the kind of impact which the Respondent now has had to endure, namely, a lengthy suspension of his registration, the need to divest interests in pharmacies and his personal liability for fraud (in circumstances where he did not personally benefit from that fraud). This was a significant penalty on the Respondent which others will be made aware of.
13. In his evidence the Respondent accepted and deeply regretted that his lack of proprietor oversight allowed this situation to occur. He recognised that maintaining effective oversight is very important in the running of a pharmacy and requires meticulous attention to detail.
14. He testified that if he were allowed to return to practice he would be much more diligent and proactive in his oversight of procedures. He is now overall less trusting of and reliant on people to do the right thing automatically.
15. We have decided that cancellation of the Respondent's registration is in all the circumstances not necessary for the protective principles we are required to follow. In our view, those principles, which we have set out above, will be met by the following:

(1) a reprimand;

(2) a period of suspension of the Respondent's registration;

(3) the imposition of certain conditions.

1. In our view, a reprimand and the proceedings themselves amount to denouncement of the Respondent's conduct as discussed in Kesserwani quoted above. These sanctions meet the protective nature of our jurisdiction whilst at the same time sending the message that the misconduct on the part of the Respondent is not condoned.
2. In our view, the course we propose will be proportionate and individualised. In the circumstances where there is a limited need for specific deterrence and general deterrence can be achieved through the sanctions we propose, cancellation would be an unreasonable or disproportionate exercise of the Tribunal's power. Although there were multiple failures of oversight on the part of the Respondent we accept and give some weight to the fact that in respect of Schedule 8 drugs he placed his trust in someone who carried out what appears to be a fairly sophisticated fraud which was detected by the Respondent's audit system in place.
3. The thefts and irregularities by Mr Zoghbi occurred over a relatively short period and came to light as a result of the regular audits conducted in the Pharmacy which were effective.
4. All the measures taken by the Respondent after discovering these issues including his immediate reporting of the issues to the relevant authorities and the measures that he imposed, and put in place, following a review of the practices demonstrate a commitment on his part to meet the standards required of a practitioner.

1. Given the period during which the Respondent has not been actively involved in dispensing medications and has been more focussed on his proprietor interests in pharmacies, he will need to take steps to ensure that he has currency of practice at the time of being permitted to again resume to practise. We regard the period of suspension until 31 December 2025 as necessary to allow him to give effect to his desire to dispose of all his interests and to take whatever steps are necessary to ensure that he has complied with all prerequisites for commencing to practise at the end of the period of suspension.

1. We further take the view that the conditions that we have decided to impose, which we set out below, will provide a degree of protection to the public through the involvement of a mentor and concentration on effective and ethical dispensing practices.
2. The conditions are as follows:

(1) The practitioner must:

(a) not practise until a mentor has been approved by the Council;

(b) undertake mentoring by the approved mentor in accordance with the Council's Compliance Policy - Mentor (as varied from time to time) and the Mentor Approval Position Statement, and as subsequently determined by the appropriate review body;

(c) meet with the mentor for a minimum of two hours on a monthly basis for a minimum period of 12 months;

(d) provide a mentoring plan, which is developed with the mentor and outlines the specific objectives and outcomes of the mentoring arrangement, for approval by the Council within fourteen (14) days of receiving written approval of the mentor;

(e) at each meeting with the mentor, discuss at least the following topics:

(i) creating and maintaining accurate and comprehensive records for aspects of pharmacy practice;

(ii) utilising the Pharmacy Boards Guidelines Pharmacy Board of Australia - Codes, Guidelines and Policies including Guidelines for dispensing medicines; and

(iii) ethics and dispensing in pharmacy practice;

(f) authorise the approved mentor to provide written reports to the Council at monthly intervals, or as specified by the Council;

(g) authorise the Council to provide the approved mentor with a copy of the Tribunal's decision in this matter.

(2) If employed the practitioner must immediately provide all of the practitioner's employers with a copy of all conditions on the practitioner's registration and provide the Council with proof of having done so within fourteen (14) days of conditions being imposed.

(3) Within seven (7) days of a change in employment as a pharmacist, the practitioner must forward evidence to the Council that the practitioner has provided a copy of these conditions and a copy of the Tribunal's decision in this matter to the new employer/s.

(4) The practitioner must authorise the Council and any employer of the practitioner as a pharmacist in Australia to exchange the information regarding any issues arising in relation to compliance with these conditions.

(5) The practitioner is responsible for the costs associated with complying with these conditions.

(6) Pharmacy Council of New South Wales is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

1. At the hearing of this matter neither party put forward for our consideration any conditions to be imposed in the event that we decided to impose conditions on the Respondent's registration.
2. Our reasons in this matter, which set out the conditions which we regarded as appropriate and intended to impose, were provided to the parties in draft form to enable them to make submissions as to the formulation of the proposed conditions, and whether any other conditions, and if so in what precise form, should be added to give effect to our decision.
3. In response, the Commission rather surprisingly proposed a new set of conditions effectively requiring the Respondent to work under category B supervision, refraining from working as a pharmacist in charge, and undergoing a performance assessment by the Pharmacy Council. It was submitted that the Pharmacy Council has concerns regarding the currency of the Respondent's knowledge and competency as a pharmacist. No foundation was laid for the need for these conditions.
4. The Commission further stated that should the Tribunal not be minded to order that those alternative conditions be imposed on the Respondent's registration, the Commission and the Pharmacy Council submitted that the conditions as proposed by us should be amended to provide that both the practitioner and the mentor referred to in our conditions should provide a report to the Council on a monthly basis, rather than quarterly as currently proposed. It was further submitted that the mentoring conditions as drafted by the Tribunal are monitorable and enforceable.
5. In response, the Respondent submitted that the proposal by the Commission amounted to substantive additional conditions which did not give effect to our reasons, or take account of the particular circumstances of the case. The Respondent argued that this was not a case where the Respondent's dispensing knowledge or efficiency has been questioned. To the extent that the Respondent's lack of proprietor oversight has created the present situation he has expressed remorse and shame and been diligent in going about a corrective course of action.
6. The Respondent submitted that given the particular issues in this case, the steps already taken by the Respondent, the currency of practice requirements and the conditions proposed by the Tribunal are ample and further says that the conditions imposed should be as set out at the conclusion of the draft reasons, which the Commission has indicated as suitably worded and effective.
7. We do not intend to accede to the Commission's request. The Commission did not establish that the Respondent lacked knowledge and competence as a pharmacist. The Respondent's failures related to his proprietor oversight and the conditions proposed by the Commission do not address that issue.
8. We accept the Respondent's submissions that the new conditions proposed by the Commission do not give effect to the Tribunal's draft reasons or take into account the particular circumstances of this case.
9. We will, however, amend the conditions we have provided to the parties to provide for monthly reports on the part of the Respondent's mentor.

1. The Commission seeks an order that the Respondent pays its costs as agreed or assessed pursuant to cl 13 of Schedule 5D of the National Law.
2. The power to award costs is discretionary and, as a general rule, costs will follow the event.
3. There are, however, circumstances where disentitling conduct on the part of a party might be a factor militating against the usual order as to costs (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] - [46]).
4. The Respondent was not able to raise any persuasive arguments that amounted to disentitling conduct in this case, notwithstanding the Commission's failure to prove all of the Particulars.
5. We shall issue an order that the Respondent pay the Commission's costs as agreed or assessed.

1. The Respondent, Mr Ali Abdallah, is guilty of unsatisfactory professional conduct.
2. The Respondent is guilty of professional misconduct.
3. Under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW) the Respondent is reprimanded.
4. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) the Respondent's registration is suspended until 31 December 2025.
5. Under s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW) the following conditions are imposed on the Respondent's registration at the expiry of the period of suspension in order 4 above:

(1) The practitioner must:

(a) not practise until a mentor has been approved by the Council;

(b) undertake mentoring by the approved mentor in accordance with the Council's Compliance Policy - Mentor (as varied from time to time) and the Mentor Approval Position Statement, and as subsequently determined by the appropriate review body;

(c) meet with the mentor for a minimum of two hours on a monthly basis for a minimum period of 12 months;

(d) provide a mentoring plan, which is developed with the mentor and outlines the specific objectives and outcomes of the mentoring arrangement, for approval by the Council within fourteen (14) days of receiving written approval of the mentor;

(e) at each meeting with the mentor, discuss at least the following topics:

(i) creating and maintaining accurate and comprehensive records for aspects of pharmacy practice;

(ii) utilising the Pharmacy Boards Guidelines Pharmacy Board of Australia - Codes, Guidelines and Policies including Guidelines for dispensing medicines; and

(iii) ethics and dispensing in pharmacy practice;

(f) authorise the approved mentor to provide written reports to the Council at monthly intervals, or as specified by the Council;

(g) authorise the Council to provide the approved mentor with a copy of the Tribunal's decision in this matter.

(2) If employed the practitioner must immediately provide all of the practitioner's employers with a copy of all conditions on the practitioner's registration and provide the Council with proof of having done so within fourteen (14) days of conditions being imposed.

(3) Within seven (7) days of a change in employment as a pharmacist, the practitioner must forward evidence to the Council that the practitioner has provided a copy of these conditions and a copy of the Tribunal's decision in this matter to the new employer/s.

(4) The practitioner must authorise the Council and any employer of the practitioner as a pharmacist in Australia to exchange the information regarding any issues arising in relation to compliance with these conditions.

(5) The practitioner is responsible for the costs associated with complying with these conditions.

(6) The Pharmacy Council of New South Wales is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

1. The Respondent is to pay the costs of the Commission pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), as agreed or assessed.

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.