Health Care Complaints Commission v Awad

NCAT Occupational|2023-11-30

Reasons for the Decision

On 3 March 2023, the Health Care Complaints Commission (HCCC) made an application to the Tribunal referring complaints concerning Mr Awad under sections 145C(1)(a) and 145D of the Health Practitioner Regulation National Law (NSW) (the National Law). The Pharmacy Council suspended Mr Awad's practitioner registration on 25 January 2022 and his registration remains currently suspended.
The matter initially came for hearing before this Tribunal panel on 22 August 2023. Mr Awad, who was then represented by solicitor, sought an adjournment on the basis that he would be lodging a review in relation to the criminal convictions. An adjournment was granted, and further directions were made on that occasion allowing the parties to provide further evidence.
The HCCC provided an amended application dated 2 June 2023; and a further amended complaint and a further supplementary bundle, on 18 September 2023. Mr Awad confirmed at the hearing before us that he had received that material and the amended complaint and that he himself had not served any material. Mr Awad did not object to the amendment of the complaint, and he wanted to proceed by making oral submissions. Having considered the parties submissions, we granted leave for the amended complaint.
Mr Awad indicated to the panel that he would be forwarding to the Tribunal an email relevant to a review of his conviction. No such email was ever received by the Tribunal. Mr Awad provided no other documents to the Tribunal.
The HCCC makes three complaints against Mr Awad: 1. That contrary to s 144(a) of the National Law, Mr Awad was convicted of criminal offences in NSW. The HCCC complains that Mr Awad was convicted of driving while under influence of drugs in 2021, stealing goods totalling over $369 from a pharmacy in Kingsgrove in 2022 and driving while disqualified, unregistered and uninsured with registration plates which did not belong to him in 2022 and further driving while disqualified in 2023. 2. Mr Awad is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law, having contravened s 130(1) of the National Law because he failed to notify the National Board in writing with 7 days of after being charged with an offence punishable by 12 months imprisonment or more. 3. Pursuant to s 144(d) of the National Law, Mr Awad has an impairment within the meaning of s 5 of the National Law, namely depressive disorder, chronic pain and a potential opioid use disorder.

Complaint 1

Section 144 (a) of the National Law provides as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner- (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
Mr Awad has been convicted of criminal offences in NSW. The following evidence establishes those convictions:

First Conviction

A certificate of conviction (Evidence Act 1995 (NSW), s 178), dated 1 August 2022, has been provided by the HCCC (Exhibit 1, p 23). The certificate confirms that Mr Awad was convicted for driving a vehicle while under the influence of drugs. The offence was committed on 9 July 2021. Mr Awad was convicted in his absence on 25 January 2022. He was ordered to pay a fine of $1,200 and disqualified from holding a driver's/rider's licence for 3 years from 25 January 2022.

Second Conviction

A certificate of conviction (Evidence Act 1995 (NSW), s 178), dated 29 July 2022, has been provided by the HCCC (Exhibit 1, p 30). The certificate confirms that Mr Awad was convicted of larceny, for stealing property to the value of $369.98, including a Mont Blanc perfume bottle and a steel wristwatch from a pharmacy. Mr Awad was convicted and ordered to pay a fine of $400.00.

Third Conviction

A certificate of conviction (Evidence Act 1995 (NSW), s 178), dated 5 September 2023, has been provided by the HCCC (Exhibit 3, p 19). The certificate confirms that Mr Awad pleaded guilty to driving while disqualified, driving a vehicle with an unauthorised number plate affixed and driving an unregistered vehicle on 29 October 2022. Mr Awad was sentenced to a 2 year community correction order, fines totalling $2,000 and disqualifies from driving for 12 months.

Fourth Conviction

A certificate of conviction (Evidence Act 1995 (NSW), s 178), dated 5 September 2023, has been provided by the HCCC (Exhibit 3, p 26). The certificate confirms that Mr Awad plead guilty to driving while disqualified and driving an unregistered vehicle on 4 March 2023. Mr Awad was sentenced to a 2 year community correction order, fines totalling $1,250 and disqualified from driving for 12 months.
There has been some indication by Mr Awad's lawyer at the hearing on 22 August 2023 that Mr Awad would be lodging a review in relation to the first conviction as he was convicted in his absence. At the hearing before us Mr Awad maintained that he would be lodging a review in relation to the offences, However, despite the lengthy adjournment, no review has been lodged. Mr Awad was convicted of the first offence since 25 January 2022 and has failed to lodge a review. On that basis, we are not of the view that any review is forthcoming or that it would disturb the current convictions.
We find that the evidence establishes that Mr Awad has been convicted of each on the criminal offences on each of the four occasions and the complaint is proven.

Complaint 2

Section 144 (b) of the National Law provides as follows: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner- … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
Section 139B (1)(b) provides that contravention by a practitioner of a provision of the National Law amounts to unsatisfactory professional conduct includes. Section 130 of the National Law requires that a registered health practitioner must, within 7 days after becoming aware that a relevant event has occurred, give the National Board established for the practitioner's profession, written notice of the event. A relevant event includes if the practitioner is charged with an offence punishable by 12 months imprisonment or more.
In relation to the first conviction in which Mr Awad was charged under s 112(1)(a) of the Roads Transport Act 2013 (NSW) with the offence of driving a vehicle while under influence of drugs. The maximum penalty for that offence was 18 months imprisonment and/or a fine.
In relation to the section conviction of larceny, Mr Awad was charged under s section 117 of the Crimes Act 1900 (NSW). The maximum penalty for that offence in the Local Court is 2 years imprisonment and/or a fine.
The HCCC submits that Mr Awad failed to notify the National Board in relation to those charges at any time and Mr Awad has not demonstrated that he did notify the board of the charges at any time.
On that basis we find the complaint of unsatisfactory professional conduct is proven.

Complaint 3 - Impairment

Section 139 of the National Law provides: 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and ….
Impairment is defined under 5 of the National Law as: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or …
The following evidence establishes that Mr Awad has an impairment.
In the Court Attendance Notice for 25 January 2022 (exhibit 1, p 20-21) it notes that at about 7:40pm on 9 July 2021, Mr Awad was severely incoherent and drowsy, appeared unconscious, sluggish and incoherent, failed to respond to questions and had open packets of pills in his vehicle. Blood and urine results that evening revealed the following substances: 1. Pseudoephedrine 0.52mg/L which the HCCC Submits is a Schedule 4D, decongestant. 2. Tramadol 0.35 mg/L which the HCCC submits is a schedule 4D opioid, generally prescribed for severe pain. 3. Doxylamine 0.02mg/L which the HCCC submits is for sleeplessness. 4. Ibuprofen <5 mg/L which the HCCC submits is for anti-inflammatory pain relief. 5. Paracetamol <5mg/L which the HCCC submits is for pain relief. 6. Aripiprazole 0.08mg/L which the HCCC submits is for anti-psychotic, generally prescribed for schizophrenia and bipolar. 7. Citalopram <0.05mg/L SSRI, which the HCCC submits is for generally prescribed for depression and panic attacks. 8. Methadone 0.33 mg/L which the HCCC submits is a schedule 8 opioid, generally prescribed for opioid dependency and severe pain. 9. Sildenafil <0. 10mg/L which the HCCC submits is generally prescribed for erectile dysfunction.
In a referral from Guildford Road Medical Centre dated 3 March 2022 (exhibit 1, p 117), Dr Hanna notes that he is referring Mr Awad for recurrent attacks of major depression and anxiety.
In a mental health treatment plan dated 11 March 2022 (exhibit 1, p 121), Mr Awad's GP prepared a mental health care plan. He administered a Kessler Psychological Distress Scale (K10) test (exhibit 1, p 119) and scored 33.
Professor Abdullah Demirkol holds a Master of Medicine in pain management, a fellow of the Royal Australasian College of Physicians Addiction Medicine Specialist, Medical Council appointed hearing member since 2014 and HPCA appointed health assessor since 2020. He conducted an assessment of Mr Awad on 15 July 2022. In his report he states that the Kessler Psychological Distress Scale score indicates likely severe mental health disorder and referred him to a psychologist. (exhibit 1, pg 149). Professor Demirkol also concluded that the practitioner has a depressive disorder, chronic pain and a potential opioid use disorder. Professor Demirkol conducted a second assessment on 22 May 2023 and concluded that the practitioner has a mood disorder, chronic pain and a potential opioid use disorder (exhibit 2, p 14).
Mr Awad stated at the hearing, that Professor Dermikol had told him that he had an episode of depression and that he was now fine to practice.
Mr Awad also submitted that he does not have an impairment and he was just going through a period of stress and anxiety at the time of the offences. He made submission that he took the pain medication for only a short period of time, under supervision to help him with some pain and that it has now resolved. Those submissions were put to Professor Demirkol by Mr Awad and Professor Dermikol confirmed that the available medical records do not support those submissions. He also submitted that any depressive conditions had been resolved and his GP had informed him that he was now fine to go to work. However, he provided no supporting evidence from his GP in that regard.
We accept Professor Demirkol's expert opinion that Mr Awad had a depressive and chronic pain disorder and that would detrimentally affect his capacity to practise the profession. Professor Demirkol's is a pain management specialist and has considered the relevant material. He has assessed Mr Awad on two occasions on 15 July 2022 and on 22 May 2023.
More importantly, there is no evidence that Mr Awad has received any treatment regarding his impairment. He submits that his doctors overseas have not been consulted about his treatment. However he himself has not provided any supporting evidence of any treatment by his doctors overseas. Despite the referral from his doctor to a psychiatrist on 3 March 2022, and referral to a psychologist by Professor Demirkol there is no record that he has attended a psychiatrist or psychologist.

Protective Orders

Sections 149A-149C of the National Law set out the orders that the Tribunal can make once it has been found that the complaint against the practitioner has been proved.
The power to make those orders is protective rather than punitive.
Section 3(2)(a) of the National Law provides that one of the objectives of the national registration scheme is: (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …
In Lee v Health Care Complaints Commission [2012] NSWCA 80, the Court of Appeal held (at [20]-[21]): "20. Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. 21. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
The HCCC proposes that the following orders should be made by the Tribunal in relation to the complaint: 1. An order under section 149C(1)(c) of the National Law cancelling the practitioner's registration. 2. An order under section 149C(7) of the National Law that the practitioner cannot reapply for registration for a period of 12-18 months. 3. An order under clause 13 of Schedule 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed.

Cancellation

Relevantly, s 149C(1)(c) of the National Law provide as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or
Having considered the evidence, we find that the practitioners registration should be cancelled.
In Health Care Complaints Commission v Piper [2014] NSWCATOD 62, the Tribunal said (at [48]): ... The object of protection includes deterring the practitioner from repeating the conduct and significantly, in this case, deterring others who may consider engaging in similar conduct (NSW Bar Association v Hamman (1999) NSWCA 404).
We are of the view that in the circumstances, and for the protection of the public and the maintenance of proper professional standards, the practitioners registration should be cancelled. There is no evidence that Mr Awad has undertaken rehabilitation in relation to his depressive and chronic pain disorder.
Mr Awad stated at the hearing, that the sentences in relation to his convictions were reduced by the Court. Despite being provided with numerous opportunities to do so, including at the hearing before us, Mr Awad was not able to provide any supporting evidence in relation to a reduced sentence. Mr Awad also submitted that He states his conduct in driving while disqualified should not impact on his professional ability to undertake his work as a pharmacist.
In Health Care Complaints Commission v Do [2014] NSWCA 307, where the Court of Appeal said (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."
In our view, the circumstances of Mr Awad's offences, for which he was convicted, would not inspire public confidence that Mr Awad is fit to practice as a pharmacist.
In relation to the first conviction, the police facts (exhibit 1, pgs 20-21) disclose that at about 7:40pm 9 July 2021, Mr Awad was driving his motor vehicle, through a McDonalds drive-through and subsequently partially blocked the drive-through exit. Mr Awad asserted to police that he had consumed Panadol due to shoulder pain, but blood and urine samples later revealed eight other substances present, including two Schedule 4D drugs (Pseudoephedrine and Tramadol) plus mood medication (anti-psychotic and anti-depressant). Mr Awad's consumption of a Schedule 8 opioid dangerous drug (Methadone) posed a risk to the public as he consumed a quantity of Methadone which would have impaired his driving at the time of the incident. While his offence was for driving under the influence, the evidence established that Mr Awad self-dispensed tramadol, methadone, aripiprazole and citalopram as private prescriptions for his personal use. Mr Awad stated that in his evidence that he had received prescriptions for his medications from a doctor in Egypt and who provided phone orders for prescription medication. He then privately paid for the script.
This is also supported by what he told Professor Demirkol, who notes his report (exhibit 2, p9): Consequently, he sought assistance by contacting his doctor in Egypt, Dr. Evone Evid, who provided a phone order for methadone and tramadol. Mr Awad asserted that he took these medications "at the lowest possible dose and only once". When asked how he documented this dispensing activity, he stated that he recorded it under his name as a phone order and private prescription. He maintained that he intended to consult his local GP to obtain proper prescriptions but discovered that his GP had restrictions on prescribing Schedule 8 medications. When I pointed out the fact that there was no record of this conversation regarding the painkillers in Dr. Hanna's medical notes, and Mr Awad was uncertain why his GP did not make an entry regarding this interaction. When questioned about his decision not to go to the emergency department (ED) while experiencing severe pain, Mr. Awad explained that he was attempting to avoid using an ambulance or going to the ED, as many Australians would typically do when they have other options available. However, when asked what advice he would give to someone facing a similar problem, he stated that he would direct them to the ED or their own doctor. Mr Awad further explained that he took all other psychotropic medications that were found in his system under the guidance and instructions of Dr Evid, who was also providing advice for the low mood he was experiencing during that period. It appeared that Mr Awad was content with the notion that he could receive a phone order for medications from a doctor overseas and self-dispense these medications for his personal use. I reminded Mr Awad that during my previous assessment in July 2022, he had mentioned experiencing gastrointestinal pain rather than pain in his genitalia. In response, he explained that at that time, he felt uncomfortable discussing "pain in his private areas" As result, he referred to it as gastrointestinal pain, as both areas are located in the same general region of the body. Regarding the second incident, Mr Awad maintained that it was a misunderstanding and denied any intention of stealing from the pharmacy. According to him, he had provided his and credit card at the time, which he believed were not actions typical of a thief. Mr ad explained that he was experiencing burnout and exhaustion during that period and ply forgot to pay for the items in question. He told me of his intention to return to the pharmacy the following day to settle the payment, but before he could do so, the police arrived at his location. Mr Awad believed that the issue could have been easily resolved if the pharmacist had directly contacted him… and even the Judge overseeing his case
In relation to the second conviction relating to larceny the police fact sheet (exhibit 1, p 28-29) notes that on January 2022, Mr Awad entered a pharmacy to purchase some medicine for his patients as the Pharmacy which he was at had allegedly run out of stock. Mr Awad picked up a TW STEEL brown wristwatch valued at $229.99 from the shelf and removed the watch from its black packaging, he put the watch on his left wrist and walked up the aisle while putting the watch in his left pocket. Mr Awad also picked up a silver 'MONT BLANC' perfume box, removing the perfume from the box and placing both items on the shelf separately. Mr Awad walked past the 'MONT BLANC' perfume valued at $139.99, picking it up and placing it in the white plastic bag before leaving the Pharmacy and entering his vehicle.
In relation to the third conviction relating to driving an unregistered vehicle on the road and while disqualified and using a vehicle with unauthorised number plate affixed, the police fact sheet (exhibit 3, p13) notes that Mr Awad was driving his vehicle bearing registration plates (ASL20D) which did not belong to his vehicle and that the registration plates (BR30ZO) which belonged to the vehicle were not attached and had been cancelled since 21 June 2021.
In relation to the fourth conviction of using an unregistered vehicle on road and drive vehicle during disqualification period, the police fact sheet (exhibit 3, p17-18) notes that Mr Awad was driving on 4 March 2023 when his driver licence had been disqualified from 25 January 2022 and the vehicle registration had been cancelled due to fine default from 28 October 2022.
Mr Awad was aged 35 and 36 years at the time of his offending. Mr Awad's offences were serious, and they were potentially punishable by imprisonment. The offences were committed in 2021, 2022 and 2023 and are relatively recent. For driving while drug affected, Mr Awad was convicted in his absence and was fined $1200 and disqualified from driving for a period of three years. For the larceny, Mr Awad pleaded guilty and the Local Court declined to make a non-conviction order and he was fined $400. For his further offending, the Local Court imposed significant fines and a 2-year community correction order and further driving disqualification period.
Section 41 of the National Law provides: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession.
The Pharmacy Board of Australia (NMBA) Code of Conduct (exhibit 1, pg 204) provides that good practice regarding a partitioners health involves a practitioner: a) attending a general practitioner or other appropriate practitioner to meet health needs b) seeking expert, independent, objective advice when a practitioner needs healthcare and being aware of the risks of self-diagnosis and self-treatment
Mr Awad self-dispensed tramadol, methadone, aripiprazole and citalopram as private prescriptions for his personal use rather than go to a GP. There is no adequate explanation why he allegedly obtained a phone order from an overseas doctor. Mr Awad disclosed at hearing for the first time that his treating doctor was his mother overseas and that he dispensed the medication to himself as a private prescription. As a pharmacist, Mr Awad is responsible for counselling patients about safe use of medication, unsafe combinations of medications and cautioning patients about the risks of driving while affected by certain drugs.
The Code of Conduct (exhibit 1, pg 189) also provides that pharmacists: … must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness dependability and compassion…
Mr Awad has displayed general dishonesty and he does not demonstrate integrity and truthfulness. His continuing to practice would dimmish public trust and confidence in the profession. He had committed the offence of larceny. He drove his vehicle while disqualified with registration plates which did not belong to him and failed to report the charges to the National Board. During the disqualification period for his driving while drug affected he again drove while he was disqualified and while his vehicle was unregistered.
Mr Awad did not demonstrate that he has shown insight or obtained treatment. Until the hearing, he did not disclose that it was his mother who was prescribing his medication from overseas. He does not feel he has an impairment or that he needs treatment and despite lack of evidence that he has received treatment, believes he is now fine to continue practising in the profession. Mr Awad has not seriously engaged in treatment. Further, Mr Awad had little insight as to how the circumstances of the convictions or his impairment impact on his trustworthiness in the practice of the profession of pharmacy. In the absence of evidence of treatment, the reputation of the pharmacy profession would be damaged if his licence was not cancelled.
In our view, a period of 12 months is an appropriate period for cancelation. Mr Awad should have known his conduct was wrong. Even though the offences were committed outside of the Mr Awad's profession as a pharmacist, the nature of the offences committed and the circumstances in which they were committed are serious. There is limited evidence before us to demonstrate that the practitioner will not repeat the offending in the future. A disqualification period of 12 months will allow some time for the Mr Awad to commence appropriate treatment. On that basis Mr Awad cannot reapply for registration for a period of 12 months.

Costs

The Commission seeks an order that Mr Awad pay the Commission's costs as agreed or assessed.
The Tribunal has power to order costs, as conferred by clause 13 of Schedule 5D of the National Law. As a general rule, costs of proceedings before the Tribunal follow the event unless there has been some disentitling conduct by the HCCC in the conduct of the proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
The HCCC proceeded with this referral in an appropriate way and there was no disentitling conduct in the way that the HCCC conducted the proceedings.

Orders 1. Mr Awad's registration as a pharmacist is cancelled. 2. Mr Awad cannot reapply for registration for a period of 12 months. 3. Mr Awad is to pay the Health Care Complaints Commission's costs of the proceedings, 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. Registrar

Amendments 17 July 2024 - Paragraph 30 - line 1 - Clarifying that expert opinion is about Mr Awad. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2024

Roads Transport Act 2013(NSW)

(Evidence Act 1995(NSW)

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