Health Care Complaints Commission v Akawee

Health Care Complaints Commission v Akawee - [2023] NSWCATOD 115 - NSWCATOD 2023 case summary — Zoe

[5]

Complaint

By Further Amended Complaint filed 9 May 2023, the Commission makes three complaints.
The background to all complaints is that: The practitioner graduated with a Bachelor of Pharmacy from the University of Sydney in December 2017 and was first registered as a pharmacist on 1 February 2018. The practitioner undertook an internship with Chemist Warehouse, Rockdale from January 2018 to December 2018. The practitioner was employed by Easy Script Compounding Pharmacy, St Marys as a pharmacist from January 2019 to December 2019. The practitioner was employed by Abundance Pharmacy, Double Bay as a pharmacist from January 2020 to April 2020. The practitioner worked for Pharmacy 4 Less, Hornsby ('the pharmacy') as a pharmacist from May 2020 until March 2021. At all relevant times, the practitioner practised as a pharmacist at the pharmacy.
Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
Complaint Three is that the practitioner is guilty of professional misconduct under s139E 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; 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 suspension or cancellation of the practitioner's registration.
The conduct the subject of the complaints, broadly speaking, was, in the period October to December 2020, the dispensing of Sch 8 drugs of addiction to some 10 persons, including the practitioner's immediate family member and his friends, and "friends of friends", in circumstances where the prescriptions variously contained no name of the patient, no address of the patient, were not signed by a medical practitioner and were otherwise illegible.

[7]

Section 150 proceedings

A s 150 hearing was held on 17 March 2021. The transcript records: DR SAINSBURY: Maybe I can rephrase it slightly differently. Look, honestly we're having trouble understanding how you could miss all of the things that were wrong with those prescriptions. As has now been pointed out, they're very, very poor forgeries and it does raise suspicions for us as to why someone who is a recent graduate and has passed all your intern exams and an intern training program and have been working in a pharmacy without much of a break by the sounds of it, it is really, really hard for us to understand how you could miss such blatant poor quality forgeries. And so that for us, it's just really hard for us to see how that could happen for any pharmacist. There are some good quality forgeries around that are harder to detect, but we're actually seeing - you're dispensing prescriptions that didn't even have a doctor's signature on them. Can you see that that's really quite hard for us to accept that sort of situation? So I guess what we're trying to say is, is there anything else that you haven't told us that would help us to understand why you dispensed these things? It's just really hard for us to understand that you either didn't notice or you'd forgotten the legalities of an S8. MR AKAWEE: Well I see that now, yes I do see how you came to that conclusion now. DR SAINSBURY: Is there anything else that you can tell us? MR AKAWEE: I leaned too heavily on knowing the patients or having them be friends of friends, so. DR SAINSBURY: So you just didn't even look at the prescription? MR AKAWEE: Of course I looked at the prescriptions, I just - - DR SAINSBURY: And then so why did you not notice that - I can barely accept about addresses and names, barely, but there is no prescription that doesn't need a doctor's signature. MR AKAWEE: You're right. DR SAINSBURY: I mean I have trouble about the addresses and contact details but quite honestly when we get to the point of not having a signature on the prescription, I cannot believe that you looked at it and thought that it was okay. So to my mind there is something else - if there is something else we want to know what it is that made you disregard the fact that the prescription didn't have a signature on it? MR AKAWEE: Yes, I - I should have - • DR SAINSBURY: And knowing the patients isn't really an excuse, is it? MR AKAWEE: That's - that's all I have. I don't - - - DR SAINSBURY: All right, so if you have nothing else to tell us you can't tell us anything else, but I guess what we're trying to say is it is really, really hard for us to accept that as a reason why you would dispense a prescription that was not signed by a doctor. MR AKAWEE: Yes. … DR SAINSBURY: Can I just say as part of this. Look, we don't know what's going on. We find your explanation really hard to understand and we actually want to know the truth and I'm not suggesting that this is the case, but if you are thinking that you are protecting someone by - if there is any information you have that you think might be protecting someone or whatever, these are very serious matters that you are facing just to put it in context that this is very serious stuff.
The Council's decision was published on 19 April 2021. The Council suspended his registration as a pharmacist. The Council concluded: Conclusion 37. We formed the strong belief that Mr Yoseph Akawee does not have the necessary standard of practice, knowledge, understanding, judgement and care to ensure the public's health and safety is protected. His knowledge and understanding of the legislation around drugs of addiction and special restricted substances was well below the level expected of a recent graduate, or indeed of a practising pharmacist of any level of experience. He failed to demonstrate appropriate care or clinical judgement in relation to the supply of medication to a patient with a history of abuse of similar substances, and to a patient on the OTP. He failed to demonstrate adequate judgement in relation to the supply of drugs of addiction to friends on the basis of prescriptions which he should have detected as both invalidly written and forged. Further, he continued to rely on and defer to prescribers, rather than taking on the responsibility of a pharmacist to exercise independent judgement. 38. We were not satisfied that Mr Akawee was entirely honest in his responses to us. We found 'some of his explanations to be extremely implausible and contrived, and we were not satisfied with many of his answers. We found it almost impossible to believe that Mr Akawee was unable to identify that the prescriptions under question were invalid given the lack of a prescriber's signature on several. Although he denied any involvement in illegal activities such as diversion of the medications, we were not convinced that he had given us all of the information of which he was aware.

[11]

Is Complaint One proved?

Section 139B(1)(a) provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience
In his Reply the practitioner has admitted Complaint One. Independently of the practitioner's admission, we find Complaint One proved.
The Commission submits, and we accept, that the Tribunal, as an expert committee, may form its own view and is not bound to accept the admissions or the evidence of an expert as to the characterisation of the conduct of the practitioner as consistently inviting "strong criticism" and falling "significantly below" the standards reasonably expected of a practitioner of an equivalent standard, or at least failing to meet those standards: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] and Slezak, Dr Peter [2011] NSWMPSC 10 at [98].
It is appropriate to note that the Commission's expert, Mr Leigh, considered that: 1. the practitioner supplied Patient A with Primoteston, a Special Restricted substance. Mr Leigh records that the practitioner conceded that he had made a mistake in not checking vigilantly enough and, given the quantities dispensed there may have been a possibility that the drugs were being stockpiled, misused or diverted. Mr Leigh believes that the practitioner's actions were not appropriate and his standard of conduct fell significantly below that required of a pharmacist with his level of experience; 2. the practitioner supplied Patient B, a drug dependent patient known to the pharmacy and receiving Methadone, with Alprazolam. Mr Leigh says that the fact that the patient presented a prescription for a second type B drug of addiction from a different doctor should have immediately alerted the practitioner to question the circumstances around this situation as Alprazolam is a drug that may be abused. Mr Leigh believes that the practitioner's conduct was not appropriate and fell significantly below the standard required of a pharmacist with his level of experience; 3. the practitioner supplied Patient C, his immediate family member, with Alprazolam, in circumstances where the prescription was not signed by a doctor, the directions were inadequate and other parts of the prescription were inadequate and in contravention of cl 86 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR), which matters were sufficient to raise concern about the authenticity of the prescription. Mr Leigh believes that the practitioner's conduct was not appropriate and fell significantly below the standard required of a pharmacist with his level of experience; 4. the practitioner supplied Patient D, his friend, with Endone, and Oxycontin, in circumstances where the prescriptions variously lacked doctors details, a doctor's signature, the patient's address or parts were illegible and in contravention of cl 86 of the PTGR which matters were sufficient to raise concern about the authenticity of the prescription. Mr Leigh believes that the practitioner's conduct was not appropriate and fell significantly below the standard required of a pharmacist with his level of experience; 5. Mr Leigh makes similar comments in relation to: 1. Patient E, to whom he dispensed Alprazolam and Endone; 2. Patient F, another friend, and Patients G, I and J to whom he each dispensed Endone; 3. Patient H, to whom he dispensed Oxycontin.
Mr Leigh concludes by stating: Mr. Akawee should have been aware of his professional role and that good practice includes recognizing the potential conflicts and risks of providing care to family and friends. This care can be inappropriate because of the lack of objectivity and can impair clinical judgment. When a practitioner chooses to provide care to those in a close relationship, good practice requires that adequate records are kept. … From the material supplied there does not appear to have been any records kept except those kept when dispensing a prescription by the dispensing software. Mr. Akawee should have been aware that a pharmacist may refuse supply as it is illegal to supply a quantity not in accordance with recognised therapeutic standards of what is medically appropriate in the circumstances (Guide to Poisons and Therapeutic Goods Legislation for Pharmacists, 2015). While clause 87 states that a pharmacist must not supply a drug of addiction unless they know the person, as these scripts were incorrectly written and therefore illegal, Mr Akawee should have contacted the doctor to discuss the errors above plus check their veracity. Mr. Akawee should have considered the number of friends coming to him with similar prescriptions for medications, many supposedly were written by the same doctor, and all known for their potential to be abused or diverted. He appears to have failed to question the sudden influx of these prescriptions and did not appear to contact the doctor/s to verify the medication, dosing and discuss the errors in the prescriptions. From the above I believe that Mr. Akawee's conduct in dispensing prescriptions to family and friends without verification from the prescribing doctor was not appropriate and fell significantly below the standard required of a pharmacist with his level of experience.
Accordingly, regardless of the practitioner's admission of Complaint One, independently we find Complaint One proved.

[15]

Relevant principles

Section 139B(1)(l) provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
We note at the outset that the Commission does not submit that the practitioner has engaged in unethical conduct. It does however submit that his conduct was improper.
The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated: 21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22. The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. 24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53]. 25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. ….
Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54].
In addition to those principles, the following principles are relevant: 1. the relevant ordinary meanings of improper include not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong: Liu at [53]; 2. in professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner: Liu at [54]; 3. it is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: Liu at [55]; 4. to make a finding of improper or unethical conduct, it is not necessary for the Tribunal to be satisfied that the conduct is intentional: improper conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [19]-[21] 5. impropriety does not depend on the practitioner's consciousness of impropriety, it consists in a breach of the standards of conduct that would be expected of a person in the position of the practitioner by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case: Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]; 6. codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession (National Law, s 41) and may be relevant to whether conduct is improper or unethical.

[16]

Application of principles

The Commission submits that the conduct of the practitioner was improper, in the sense that it was irregular, contrary to the Code of Conduct and fell below the standards of conduct to be expected of pharmacists in that it tends to bring
We agree. The evidence establishes that the practitioner: 1. dispensed Primoteston to Patient A on three occasions: 1. in breach of cl 2.2 of the Pharmacy Board of Australia Code of Conduct for Pharmacists March 2014 (Code of Conduct) 2. in breach of cl 8.4(a) of the Code of Conduct in failing to record conversations with the prescriber concerning the dosage and quantity of the prescription,; 1. dispensed Alprazolam to Patient C (the practitioner's immediate family member) on one occasion, in breach of cll 2.2 and 3.14 of the Code of Conduct; 2. dispensed: 1. Endone to Patient D (the practitioner's friend) on one occasion in breach of cll 2.2 and 3.14 of the Code of Conduct and in circumstances where he ought reasonably to have known or suspected that the prescription was forged; 2. Endone to Patient D (on three occasions) in breach of cll 2.2 and 3.14 of the Code of Conduct and in circumstances where he ought reasonably to have known or suspected that the prescription was forged; 1. dispensed: 1. Alprazolam to Patient E (a "friend of a friend") on one occasion in breach of cl 2.2 of the Code of Conduct and in circumstances where he ought reasonably to have known or suspected that the prescription was forged; 2. Endone to Patient E on one occasion in breach of cl 2.2 of the Code of Conduct and in circumstances where he ought reasonably to have known or suspected that the prescription was forged; 1. dispensed Endone to Patient F (the practitioner's friend) on one occasion: 1. in breach of cll 2.2 and 3.14 of the Code of Conduct; and 2. in circumstances where he ought reasonably to have known or suspected that the prescription was forged; 1. dispensed Endone to Patient G (another friend of a friend) on one occasion: 1. in breach of cl 2.2 of the Code of Conduct; and 2. in circumstances where he ought reasonably to have known or suspected that the prescription was forged; 1. dispensed Endone to Patient I on one occasion in circumstances where he ought reasonably to have known or suspected that the prescription was forged; 2. dispensed Endone to Patient J on one occasion: 1. in breach of cl 2.2 of the Code of Conduct; and 2. in circumstances where he ought reasonably to have known or suspected that the prescription was forged.
We are satisfied that, based on these particulars cumulatively, Complaint Two is established.

[18]

Relevant Law and Principles

Section 139E of the National Law (an additional provision for NSW), provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) 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 suspension or cancellation of the practitioner's registration.
The Tribunal stated in Health Care Complaints Commission v Le [2021] NSWCATOD 104 that: 71. The principles relating to findings of professional misconduct were stated in Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 at [69] to [75] which we paraphrase as follows: (1) Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55]; (2) Guidance as to the circumstances in which suspension or cancellation of registration are appropriate is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") (Basten and Emmett JJA agreeing). His Honour stated: [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. (3) Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. (4) Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; (5) As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186, "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes: [20] 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. …

[19]

The Commission's submissions

The Commission submits, and we accept, that the determination of whether 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. The Commission submits, and again we accept, that the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from "proper" or "reasonably expected" standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638).
The Commission submits that, both individually and cumulatively, the particulars of Complaints One and Two demonstrate that the practitioner has engaged in sufficiently serious conduct, either individually or when taken together, to justify the suspension or cancellation of the practitioner's registration.
The Commission relies on the following matters to support that submission: 1. major deficiencies were identified regarding the practices of the practitioner with respect to Sch 8 medications and their supply; 2. pharmacists act as guardians in the community in the responsible and lawful dispensing of Sch 8 medications and drugs of addiction. It is their compliance with the protective structures to which the Regulations are directed which ensure the safe benefits of such medications to individual patients and the community as a whole: Health Care Complaints Commission v Saab [2019] NSWCATOD 179 at [322]; 3. there is a threat to public health posed by the diversion and misuse of prescription pharmaceuticals, including poisoning, overdose and death. The risks to the public posed by the improper supply of prescription drugs are extremely serious. In the past decade a shift has taken place in Australia such that drug induced death is far more likely to be caused by the misuse of prescription drugs than by illegal drugs: Health Care Complaints Commission v Sadek (No 2) [2018] NSWCATOD 90 at [46]; 4. relevant to the evaluation of the seriousness of the admitted conduct is the potential for harm. The practitioner's conduct had the potential to contribute to the misuse and abuse of prescription medication, including drugs of addiction. It is a matter of common knowledge that the misuse and abuse of drugs of addiction poses a real and serious risk to the health and safety of individuals and the community at large. As the Tribunal noted in Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 at [55]: Pharmacists are gatekeepers with responsibility, among other things, for dispensing drugs of addiction. To assist them in that serious task, regulations and guidelines are imposed so that the very real risks involved in dispensing drugs of addiction can be managed and mitigated. As the National Law emphasises, the protection of the public is paramount. And some members of the public, such as drug dependent patients, need protection from themselves. Medical practitioners and pharmacists share significant responsibility and are required to exercise their individual clinical judgments to ensure that individual consumers and the public are protected. The more experienced a pharmacist becomes, the better that practitioner's judgment might be expected to be. A pharmacist's failure to be attentive, or sufficiently attentive to the self-evident risks of dispensing Sch 8 drugs, undercuts the protective structure which the regulations and guidelines are intended to erect for the benefit of individual patients and the community as a whole. 1. this was not a case of a one-off contravention of the requirements of the PTGR but of multiple contraventions over a period of time involving numerous patients and disturbingly a family member, friends and friends of friends. While not deliberate, these failures were nonetheless serious. Further, the practitioner has taken no steps after 2021 to discuss the provision of the fraudulent scripts with his family member or his friends.
The Tribunal should be satisfied that, considered as whole, the admitted unsatisfactory professional conduct is of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.

[25]

The practitioner's statement

By way of overview summary, the practitioner says: 2 Reflection & Learning 2.1 It has now been two years since my suspension, and I have used this time to reflect deeply on my conduct and improve my understanding of the standards that are expected of me as a pharmacist. 2.2 On my current understanding of a pharmacist's obligations, I recognise that the conduct that is subject to the complaint does not comply with the Poisons and Therapeutic Goods Regulation 2008 (NSW) and my other obligations as a pharmacist under the Board's codes and guidelines. 2.3 Since receiving notice of the shortcomings in my practice and the Section 150 hearing, I have been committed to improving my knowledge, understanding and skills. I am cognisant of the vital role pharmacists play in the health and well-being of their patients and the community generally, being the gatekeeper to medications and the last barrier in place to ensure patients receive quality and safe treatment. … 3 Comments 3.1 I am disappointed that I failed to perform to the standard that was expected of me and there has been no greater learning experience than this. 3.2 Being a pharmacist has been my dream job. Having failed so early in my career has been extremely disheartening, but also a motivator to better myself - for myself, my patients and the community. Having been through this experience, the silver lining is that I have become aware of my deficiencies at an early enough time in my career (so as to avoid a long period of putting the community at risk), understand how to better navigate the situations I was previously faced with and have the knowledge and tools to conduct myself in manner that is to the highest professional standard. 3.3 The past two years of suspension have been an incredibly difficult time and I have done my best to ensure that I am and will be a better pharmacist, if given the chance. I ask the Tribunal to take into consideration the steps I have taken to improve my knowledge, understanding and skills, the time I have spent under suspension and the fact that I had no financial gain or interest in the dispensing of medications at the Pharmacy. 3.4 I believe I can make a positive contribution to the community and the profession more broadly if given the opportunity to do so.
In relation to his "Learning", the practitioner states that: 1. he has continued to complete CPD activities during the course of his suspension; 2. by 23 December 2021, he had completed the 6 month Pharmaceutical Society of Australia Ethics and Dispensing in Pharmacy Practice Course; 3. by 21 June 2022, he had completed the short course Driving Safety - Sedating Medications & Opioid Agonist Treatment offered by The University of Sydney; 4. by 28 June 2022, he had completed the Fundamentals Training in Opioid Treatment course offered by The University of Sydney; 5. he has stayed "up to date" with developments in the industry relevant to the provision of high-risk medications and has identified that SafeScript NSW would be a useful tool in assisting him to make more appropriate clinical decisions so as to prevent harm to patients and the community generally. To this end, he has completed SafeScript NSW Modules 1 to 3, which has provided him with insight into the importance of prescription monitoring in reducing harm. He says that learning about the scale of the opioid problem in NSW and the ways in which prescription monitoring can help prevent harm, has made him better equipped to identify and manage patients at risk of harm; 6. he has continued to update himself and revise the relevant clauses of the PTGR and the Pharmacy Board of Australia's Code of Conduct (PBACOC). He says that he has had particular regard to the PBACOC's focus on good care and understanding boundaries, and that he recognises the importance of setting boundaries with patients and ensuring that he perform his duties, including exercising his independent clinical judgement, no matter what circumstance he is faced with.
In relation to his mentoring by Ms Hehir, he says that: 2.12 Mentoring with Ms Hehir has been an invaluable experience for me. She has helped in my professional development and personal growth in ways I would never have been able to accomplish without her. She has helped identify areas for improvement in my practice, including how I can monitor my progress on an ongoing basis. She has also provided excellent guidance on best practices and new developments in the pharmacy space, She has also helped provide a supportive and encouraging environment to help discuss my challenges and receive constructive feedback. She has helped me build my confidence and develop a growth mindset and has encouraged me to persevere during the times I struggled most personally and professionally. It is thanks to Ms Hehir's support that I am confident I can return as a pharmacist and continue to remain so passionate about this industry that I love.
As noted, the practitioner was cross-examined.
In cross-examination he agreed that at the time of the conduct the subject of the complaints he had had a full practising certificate for two years, and had "some" experience in filling prescriptions for Sch 8 drugs. He said that he was aware of the Code of Conduct, but had not read it in its entirety. He said that he was now more familiar with it, having looked at it as a result of his suspension.
He was asked about a letter he had written to Commission dated 28 March 2022, in which he stated, in relation to the dispensing of an anabolic steroid to Patient A in a quantity that did not accord with recognised therapeutic standards, that "I did check the dosage and quantity with the prescriber prior to dispensing". In response to the proposition that that was not a truthful statement, the practitioner said, "I don't remember".
The Tribunal was not reassured by that answer.
In further questioning about the letter, the Commission noted that the practitioner had said: At the time of Ms Tiku's inspection, I accept that there were gaps in my knowledge which impacted my professional conduct. In particular, I accept that I was previously unaware of the foundational importance of my responsibility as a gatekeeper and my duty to exercise independent clinical judgement before dispensing medications to a patient. If I had not placed such heavy reliance on the prescribing doctors, it is likely that many of the prescriptions would not have been dispensed. I should also have been more cautious and vigilant in dispensing drugs of addiction, and more aware of the lengths people would go to obtain those drugs. If I had been more vigilant, it is likely that I would have identified red flags which would have led me to decline supply and likely to have discovered that the prescriptions were fraudulent.
In further cross-examination, the practitioner was asked whether he was aware in 2020 and 2021 that prescriptions had to be signed by a doctor. He said he was. He was then asked why he dispensed on unsigned prescriptions. He said "I made an error, I didn't check that they had all the details, it was a mistake". When asked to clarify this statement, he said that the "mistake" was in dispensing.
The practitioner said that he regarded himself as inexperienced at the time of the dispensing, and still did at the time of the hearing.
The practitioner was asked about par 2.3 of his statement where he stated that he was cognisant of the vital role pharmacists play in the health and well-being of their patients and the community generally, "being the gatekeeper to medications and the last barrier in place to ensure patients receive quality and safe treatment". He agreed that he was not cognisant of this (gatekeeper's role) prior to his suspension.

[26]

Ms Hehir's Mentoring Report and Character Reference

The contents of Ms Hehir's Mentoring Report dated 5 December 2021 may be summarised as follows: 1. the practitioner approached her following the s 150 hearing and decision, with the aim of Improving his practice and under the encouragement of the review panel; 2. she agreed to help Mr Akawee to improve his personal practices, and to help improve his knowledge of the legislation and legal provision of medications; 3. she conducted a series of three Zoom meetings, each being of around an hour in duration. These Zoom meetings covered reviews of work done by the practitioner, and submitted to her prior to the meeting; 4. there was no formal mentoring plan, but started with getting the practitioner to document his standard operating practices for dispensing. Ms Hehir and the practitioner discussed each of the points within the composed documents, and expanded each point with "all the legal requirements for dispensing and provision of medications". This she considered would help prevent the issues resulting in the complaint from recurring; 5. the practitioner was aware of some of the areas where he was found deficient, and has worked and refined documents for his personal practices to help him with his practice in the future. They discussed fraudulent prescriptions, and identified "red flags" for future use. They also discussed strategies for dealing with such prescriptions if presented, and worked through a number of scenarios and discussed what options are available for action in these circumstances.
Ms Hehir concludes: Identified shortfalls and areas for improvement: The main shortfall would be obviously, Mr Akawee has not been able to put into practice any of his new knowledge in a pharmacy setting. Using his new skills regularly will help him becomes a better pharmacist, and working in a supportive and well run environment would also be beneficial. We have discussed the possible options for going back to practice when/if the conditions are removed, and finding a pharmacy with a workload that is not too busy, and that has good support staff, and managers to guide his return to work are key. Overview of pharmacist's progress: Mr Akawee has been responsive to meetings and feedback, and has worked to improve his knowledge. Mr Akawee has consistently expressed desire to return to practice, and has been enthusiastic and diligent in working hard, both on areas I have suggested and within other areas suggested by his last review panel. I feel he has tried to overcome his deficit, and now just needs a chance to implement his new practice.
In cross-examination, Ms Hehir stated that the three mentoring sessions she referred to took place on 31 August, 28 September and 28 October 2021. However, there were a further three or four sessions in 2022, and one in 2023, six to eight weeks before the hearing. Ms Hehir was asked whether she discussed with the practitioner issues surrounding his dispensing of prescriptions the subject of the Complaint, including whether they discussed the practitioner's dispensing of Alprazolam to his immediate family member and other Schedule 8 mediation to his friends. Ms Hehir's response was that this was not usually a major problem. When asked whether she had discussed cl 3.14 of the Code of Conduct (Understanding Boundaries), Ms Hehir said "not in depth". Tribunal member Dr Bennett asked Ms Hehir whether she had asked the practitioner to identify "red flags" in relation to prescribed medications. Ms Hehir said that the practitioner had a "clear understanding" of the Schedule processes.
In re-examination, Ms Hehir said that if the practitioner was permitted to practise, under supervision, not as a pharmacist in charge and not dispensing Sch 8 medication, the practitioner would not pose a risk to the public.
In a Character Reference, undated but prepared "about a month" before the hearing, Ms Hehir states: Mr Akawee has been very open and forthcoming about the events that have led to his suspension. He has also been very responsive and amendable to feedback and suggestions relating to his work practices and learning. Mr Akawee has been working to improve his knowledge of the legislation, and pharmacy practice, and has invested a lot of time and effort into improving his practice skills. Mr Akawee has taken on board any suggestions and recommendations I have made, with regard to undertaking courses to help improve his ethical practice, clinical knowledge and professional practice standards. Mr Akawee has also acknowledged suggestions that he find work and agreed that this would be of benefit to his mental well-being. Mr Akawee has then actively sought alternate work opportunities, and has excelled in this, giving him much more confidence and self-assurance. I only met Mr Akawee after the allegations against him had resulted in his suspension. However in the time that I have known Mr Akawee, he has been open and forthcoming about his previous actions. I can also say that Mr Akawee has worked hard to improve his knowledge and understanding of the legislation, and I believe he now has both the knowledge and confidence to upload the law, and to protect the profession. As Mr Akawee has learned and gained knowledge, he has become more confident and decisive in his decision making. I believe that he has learnt from his mistakes, and has worked to improve his practice as a pharmacist.

[28]

Principles to be applied

The Tribunal has summarised the relevant principles in determining a protective order in Health Care Complaints Commission v Gupta [2022] NSWCATOD 141 at [171] and adopted in Health Care Complaints Commission v McPherson [2022] NSWCATOD 158 at [38] which we repeat as follows: 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 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 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 judgement: 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]; Meakes at [113]-[114]; 8. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag at [82]. 9. no order should be made which has "more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose": Health Care Complaints Commission v Tran [2021] NSWCATOD 82 at [123]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]); Health Care Complaints Commission v Saab (No 2) [2020] NSWCATOD 64 at [82] (and the cases there referred to); 10. in Health Care Complaints Commission v Abrams [2021] NSWCATOD 128 at [23] that the Tribunal set out the matters to which the Tribunal should have regard in determining an appropriate protective order, namely: • the gravity of the misconduct; • how long ago the misconduct occurred; • what has occurred in relation to the practitioner since the misconduct; • the practitioner's level of remorse and degree of insight if any into his or her misconduct; • what if any steps have been taken by the practitioner by way of rehabilitation; • general encouragement of high standards; and • specific considerations of what is required to ensure that the practitioner does not pose similar risks in the future.

[29]

Consideration

As the Tribunal stated in Health Care Complaints Commission v Azzam [2021] NSWCATOD 106: 92. The public interest is served by protective orders which maintain the standing of the profession and the maintenance of public confidence in the high standards of practitioners: Prakash at [91]. 93. Protective orders also involve an element of encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]. 94. Nevertheless, although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order: Lee v Health Care Complaints [2012] NSWCA 80 at [20] citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. 95. As noted in Health Care Complaints Commission v Livermore [2021] NSWCATOD 48 at [69], there are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include: • the reminder to other members of the profession of the public interest in maintaining high professional standards, the deterrent aspect to the protective nature of the jurisdiction; • the unacceptability of certain kinds of conduct; and • the maintenance of confidence in the high standards of the profession. 96. Whether the 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].
We accept that there has been no later conduct since the conduct the subject of the Complaints, which took place in October 2020 to December 2020. But this is hardly surprising, since the practitioner has been suspended since 18 March 2021.
On the whole, we accept Ms Hehir's evidence, but the safety of the public, while the paramount consideration, is not the only consideration when it comes to a protective order.
On the whole, we accept that the practitioner made concessions against his own interest, and that he has exhibited remorse and has some (albeit limited) insight.
As to the weight to be placed on the practitioner's current views and understanding about the pharmacist's role in dispensing medication, including the role of pharmacist as a gatekeeper, we accept that he now has better understanding then he did at the time of the conduct the subject of the complaints.
However, we do not accept that the seriousness of the practitioner's conduct is at the lower end of the scale, with the circumstances (namely that he was inexperienced, over worked and lacking proprietor oversight) amounting to a "perfect storm", such that the practitioner had "dropped his guard".
We do not accept that there is voluminous evidence to support the practitioner returning to practice. This submission overstates matters considerably.
As to the submission that there is no need for specific deterrence as the practitioner has been completely open and candid, specific deterrence is not the only consideration when it comes to a protective order.
Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling the practitioner's registration. Objectively, his professional misconduct is of such a serious nature that the only appropriate disciplinary order is the cancellation of his registration. Any order short of deregistration would be an inadequate response to the seriousness of his misconduct.
This is not a case we are looking at the some rare or unusual part of the pharmacist's role with which the practitioner may be unfamiliar with. The proper and legal dispensing of any medication, let alone Sch 8 medications, lies at the very heart of the role of the pharmacist.
Pharmacists are gatekeepers protecting the community. We agree with the comments of the Tribunal in Elliott referred to above that a pharmacist's failure to be attentive, or sufficiently attentive, to the self-evident risks of dispensing Sch 8 drugs, undercuts the protective structure which the regulations and guidelines are intended to erect for the benefit of individual patients and the community as a whole.
The Tribunal considers that the practitioner's registration should be cancelled, and that he should not be permitted to apply for re-registration for a period of 12 months from the date of these reasons.

At a glance

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Judgment (32 paragraphs)

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Legislation Cited (2)

Cases Cited (30)

Cited By (1)