These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (the Commission) against Mr Michael Azzam. The Commission seeks protective orders under ss 149A and 149C of the Health Practitioner Regulation National Law (NSW) (National Law).
Mr Azzam is a registered pharmacist. On 6 March 2019 his registration as a pharmacist was suspended by Pharmacy Council (Council).
By an Application for Disciplinary Findings and Orders filed 28 January 2021, the Commission seeks orders that Mr Azzam is guilty of unsatisfactory professional conduct and professional misconduct.
For the following reasons we find that both complaints are established and that:
1. Mr Azzam's registration as a pharmacist should be cancelled; and
2. Mr Azzam should not be permitted to seek a review of the order of cancellation for a period of two years.
[2]
Procedural matters
Prior to the hearing Mr Azzam, who was legally represented, provided a Reply to the Application which admitted both Complaints.
Given Mr Azzam's admissions, the hearing was conducted as a combined "Stage 1" and "Stage 2" hearing.
[3]
Evidence before the Tribunal
The Commission filed one large folder of material consisting of some 65 documents. These documents included but were not limited to evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Council; correspondence between the Commission and Mr Azzam; the reasons for decision of s 150 proceedings of the Pharmacy Council dated 22 March 2019; materials provided by Mr Azzam to the Council; documents from Bowens Pharmacy Wyoming.
Mr Azzam also filed a bundle of documents. Relevantly these included parts of his submissions to the Council in relation to the March 2019 s 150 hearing, references and medical reports. Importantly, the documents included his supplementary statement dated 12 July 2021 and three reports of Mr Anthony Pignataro, his treating clinical psychologist.
[4]
Background to the Complaints
Mr Azzam has admitted to the pleaded background to the Complaints as follows.
Mr Azzam was first registered as a pharmacist in New South Wales on 13 January 2011.
From September 2014 to September 2018, Mr Azzam worked first as a pharmacist in charge and then as the Pharmacist Manager at Barone Pharmacy, Chullora.
From September 2018 to February 2019, Mr Azzam worked as a locum Pharmacist in Charge at Bob's Chemist Newtown.
From December 2018 to March 2019, Mr Azzam worked as a locum Pharmacist in Charge at Bowen's Pharmacy, Wyoming.
NOODnet is website that allows pharmacies to list excess or short dated stock for online resale to other pharmacies.
[5]
Admitted Particulars
Mr Azzam has admitted to the pleaded particulars to the Complaints being as follows.
[6]
Barone Pharmacy, Chullora
Between September and October 2018, while working as the Pharmacist in Charge, he misappropriated $20,000 of baby formula and sold the baby formula onto a third party in circumstances where the owner of the pharmacy did not have knowledge of this transaction and/or did not consent to this transaction.
[7]
Bob's Chemist, Newtown
On 5 October 2018, Mr Azzam used the Bob's Chemist NOODnet account to sell two packets of Nexavar® 200mg tablets, a Schedule 4 drug, for a price of $6,006.00 in circumstances where he transferred the sale money into his personal bank account for his own financial benefit.
On 7 November 2018, Mr Azzam used the Bob's Chemist NOODnet account to sell 6 packets of Noxafil® 10mg tablets for a price of $4,752.00 in circumstances where he transferred the sale money into his personal bank account for his own personal, financial benefit.
On 14 November 2018, Mr Azzam used Bob's Chemist NOODnet account to sell Noxafil® 10mg tablets with a total value of $3,855.50 in circumstances where he transferred the sale money into his personal bank account for his own financial benefit.
Between September and October 2018, Mr Azzam, while working as the Pharmacist in Charge, stole repeat prescriptions for the following Schedule 4 drugs and dispensed them on 13 December 2018, while he was working at the Bowen's Pharmacy, for the purpose of selling the drugs on NOODnet:
1. 60 tablets of Reyataz® 300mg;
2. 200 tablets of Nexavar® 200mg;
3. 60 tablets of Eviplera® 300mg.
[8]
Bowen's Pharmacy
On the following dates, Mr Azzam used a repeat prescription held at the pharmacy to inappropriately dispense 60 tablets of Descovy®, a Schedule 4 drug, for the purpose of selling the drug on NOODnet for his own financial benefit:
1. 5 December 2018;
2. 16 December 2018.
On 8 December 2018, Mr Azzam inappropriately created a false account on NOODnet to sell drugs on NOODnet in circumstances where the practitioner:
1. used an email address that he created;
2. used Pharmacist A's registration details without her knowledge or consent;
3. sold drugs under the false account for his own financial benefit.
On 13 December 2018, the practitioner, while working as the Pharmacist in Charge, inappropriately dispensed 60 tablets of Triumeq® using a forged prescription that he stole from Barone Pharmacy, Chullora and sold the drugs on NOODnet on 21 January 2019 for a sale price of $1,650.00, which he kept for his own financial benefit.
On 13 December 2018, the practitioner, while working as the Pharmacist in Charge, inappropriately dispensed 120 tablets of Nexavar® 200mg, a Schedule 4 drug, using a forged prescription that he stole from Bob's Chemist Newtown and sold the drugs on NOODnet on 11 January 2019 for a sale price of $8,250.00 which he kept for his own financial benefit.
Mr Azzam used a repeat prescription that he stole while working at Amaroo Amcal Pharmacy Moree to dispense the medication as outlined at [24] in circumstances where he fabricated the dispensing date of 21 January 2019 to conceal his sale of the drugs on NOODnet on 11 January 2019.
On 12 January 2019, Mr Azzam, while working as the Pharmacist in Charge, inappropriately dispensed 28 tablets of Gilenya® 0.5mg, a Schedule 4 drug, using a repeat prescription held at the pharmacy which he edited and sold the drugs on NOODnet for a sale price of $1,980.00 which he kept for his own financial benefit.
On 21 January 2019, Mr Azzam sold 30 tablets of Afinitor® 10mg on NOODnet for a price of $1,375.00 in circumstances where the practitioner:
1. sold existing stock from the Bowen's Pharmacy;
2. transferred the sale money into his personal bank account for his own financial benefit.
On 26 January 2019, Mr Azzam used a repeat prescription held at the pharmacy to inappropriately dispense 60 tablets of Triumeq®, a Schedule 4 drug for the purpose of selling the drug on NOODnet.
On 27 January 2019, Mr Azzam, while working as the Pharmacist in Charge, inappropriately dispensed 120 tablets of Tasigna® 150mg, a Schedule 4 drug, using a prescription held at the pharmacy which he edited and sold the drugs on NOODnet on 27 January 2019 for a sale price of $3,850.00 which Mr Azzam kept for his own financial benefit.
On 29 January 2019, Mr Azzam, while working as the Pharmacist in Charge, sold 60 tablets of Reyataz® 300mg on NOODnet for a sale price of $660.00 in circumstances where:
1. Mr Azzam used a forged prescription that he stole from Bob's Chemist Newtown to dispense the drugs;
2. the drugs had previously been dispensed on 13 December 2018;
3. Mr Azzam kept the money from the sale for his own financial benefit.
Between 4 December 2018 and 28 January 2019, Mr Azzam misappropriated Schedule 4 drugs from Bowen's Pharmacy valued at $35,658.35 in circumstances where he intended to sell and/or sold the drugs on NOODnet for his own financial benefit.
Between 12 January 2019 and 1 February 2019, Mr Azzam inappropriately sold a 2 pen pack of Cosentyx® 150mg on NOODnet for a price of $1,375.00 in circumstances where the practitioner:
1. sold existing stock from the Bowen's Pharmacy;
2. transferred the sale money into his personal bank account for his own financial benefit.
On or about 1 February 2019, Mr Azzam inappropriately sold 120 tablets of Nexavar® 200mg directly to another pharmacy through email for a price of $1,980.00 in circumstances where the practitioner:
1. sold existing stock from the Bowen's Pharmacy without the knowledge or consent of the owners;
2. transferred the sale money into his personal bank account for his own personal, financial benefit.
Between 4 December 2018 and 28 January 2019, Mr Azzam stored all of the Schedule 4 drugs that he had inappropriately dispensed from Bowen's Pharmacy for sale on NOODnet in a cupboard in his house, which was contrary to cl 29 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR), including:
1. 120 tablets of Descovy®;
2. 120 tablets of Triumeq®;
3. 200 tablets of Nexavar® 200mg;
4. 56 tablets of Gilenya® 0.5mg;
5. 120 tablets of Tasigna® 150mg;
6. 60 tablets of Reyataz® 300mg;
7. 60 tablets of Eviplera® 300mg.
Around February 2019, Mr Azzam disposed of the drugs that he had inappropriately dispensed from Bowen's Pharmacy for sale on NOODnet in a Council collection bin next to his house, contrary to cl 66 of the PTGR.
[9]
Relevant Law
It is appropriate to set out the relevant provisions of the National Law. These are as follows.
Section 3, which provides:
3 Objectives and guiding principles
(1) The object of this Law is to establish a national registration and accreditation scheme for -
(a) the regulation of health practitioners; and
(b) the registration of students undertaking -
(i) programs of study that provide a qualification for registration in a health profession; or
(ii) clinical training in a health profession.
(2) The objectives of the national registration and accreditation scheme are -
(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; and
(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and
(c) to facilitate the provision of high quality education and training of health practitioners; and
(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and
(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
(3) The guiding principles of the national registration and accreditation scheme are as follows -
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3A of the National Law, which is an additional provision for NSW, provides:
3A Objective and guiding principle [NSW]
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Note -
This section is an additional New South Wales provision.
A "NSW provision" is defined in s 5 of the National Law as:
(a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or
(b) a NSW regulation.
Note -
This definition is an additional New South Wales provision.
Section 139B of the National Law, which is an additional provision for NSW, relevantly 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.
…
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law, which is 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.
[10]
Complaint One
Complaint One is that Mr Azzam is guilty of unsatisfactory professional conduct. Given Mr Azzam's admissions of the conduct alleged in the Amended Complaint, we are satisfied that this Complaint is established.
[11]
Complaint Two
Complaint Two is that Mr Azzam is guilty of professional misconduct.
As the Commission submits, Mr Azzam's conduct can be summarised as follows:
1. 15 instances of selling property for his own financial benefit in circumstances where that property belonged to the pharmacies where he was employed and entrusted to supervise during the period September 2018 to February 2019;
2. sales of misappropriated drugs with the total value of $40,228.50 and misappropriated baby formula with a value of $20,000;
3. forging or misusing 7 prescriptions;
4. the improper storage of medication in contravention of the PTGR; and
5. using false identities to sell drugs on NOODNet.
As Mr Azzam has admitted, this conduct is both unsatisfactory professional conduct and professional misconduct. The conduct is improper or unethical and includes breaches of the PTGR: as well as the National Law, s 139B(1)(l).
In making a finding of professional misconduct, the Tribunal must take into account the importance of maintaining high standards within the pharmacy profession and in public safety: Health Care Complaints Commission v Do [2014] NSWWCA 307 at [35]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
The Commission submits, Mr Azzam agrees and we find that his conduct is sufficiently serious to be professional misconduct under s 139E of the National Law. This is because his conduct included:
repeatedly misappropriating drugs and misusing prescriptions;
inappropriate storage and disposal of dangerous medications;
forging prescriptions;
using a false identity (namely that of a colleague Pharmacist A) to sell drugs on NOODNet.
All of these matters involved Mr Azzam taking advantage of his expertise, training and privilege in the profession of pharmacy.
In addition, we accept the Commission's submissions that:
1. Mr Azzam's conduct shows a pattern of repeated premeditated dishonesty. The conduct was not isolated; Mr Azzam created a false account on NOODNet for Bowen's Pharmacy using a fake name and nominated Pharmacist A as the pharmacist who would take legal responsibility for the membership without her knowledge or consent. He repeatedly used this account to sell stolen medications, with the total value of the medications taken from Bowen's Pharmacy being $35,911.35. Mr Azzam also used Bowen's Pharmacy's name and ABN without its consent;
2. Mr Azzam misappropriated drugs from pharmacies on 15 separate occasions between September 2018 and February 2019. The misappropriation of substantial quantities of medications from Mr Azzam's place of employment 'must be characterised as professional misconduct of the most serious kind' because Mr Azzam abused his position as a pharmacist for his own personal gain: Health Care Complaints Commission v Orr [2015] NSWCATOD 124.
3. Mr Azzam also repeatedly dispensed medications from the pharmacies using actual and fake patient prescriptions. Mr Azzam said he did this so that the pharmacy could make a claim on the Pharmaceutical Benefits Scheme (PBS) and receive a reimbursement. Any claim made under the PBS would be false because the patients never received the medication. Defrauding the PBS departs from the proper standards expected of pharmacists to a great extent: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630.
4. Mr Azzam admitted in his interview with the Commission that his motivation for selling the stolen drugs on NOODNET was that he had started using cocaine a couple of months before his father passed away. This is particularly concerning given that as a pharmacist, Mr Azzam has access to addictive drugs, making him at particular risk of relapse: Health Care Complaints Commission v Orr [2015] NSWCATOD 124.
5. Mr Azzam's actions presented serious risks to public safety in that:
1. the use of the prescriptions presented a serious risk to patients as it registers that they were supplied with medications when they were not. This compromises patient care as patients might not be able to access their medications and health care professionals might make treatment choices for patients not knowing that patient records were falsely created by Mr Azzam; and
2. the incorrect storage and disposal of schedule 4 medication could have endangered public safety and is a serious breach of the PTGR. Mr Azzam stored the drugs he obtained from Bowen's Pharmacy in a cupboard in his house which he shared with his young children, which could have put them at serious risk.
In the circumstances, and given Mr Azzam's admissions, we find Complaint Two established.
[12]
Protective Orders
We now turn to the question of the appropriate protective orders.
[13]
Relevant principles
When a practitioner is guilty of professional misconduct, the Tribunal's powers include the power to caution or reprimand a practitioner, to impose conditions on the practitioner's registration, or to suspend or cancel the practitioner's registration.
In deciding whether and how to exercise these disciplinary powers the Tribunal must have regard to the objectives and guiding principles of the National Law: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 9(1).
One objective is protecting members of the public from the particular practitioner who is the subject of the complaint: Health Complaints Commission v Do [2014] NSWCA 307. Another is upholding public confidence in the standards of the profession, including by denouncing the misconduct as unacceptable: Do at [35] and [39].
The paramount consideration must be the protection of the health and safety of the public: National Law, s 3A.
In Health Care Complaints Commission v Le [2021] NSWCATOD 104 at [90] the Tribunal recently stated the relevant principles in determining what disciplinary action accords with these objectives included:
1. whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character;
2. the intrinsic seriousness of the misconduct in terms of fitness to practise;
3. whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character;
4. the motivation which may have given rise to the proven episode of misconduct;
5. the underlying qualities of character shown by previous and other conduct;
6. whether the practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner;
7. a practitioner is not automatically entitled to a credit for any period of suspension they have served. The question is whether cancelling a practitioner's registration, or a further period of suspension, is appropriate to protect the public and maintain professional standards: see for example Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [73];
Finally, there is no punitive purpose in the Tribunal's disciplinary task under the National Law: Litchfield at 637-38.
[14]
Mr Azzam's evidence
Mr Azzam provided a supplementary statement to the Tribunal which makes the following principal points.
First, he now recognises and understands the seriousness of his conduct and apologised for his actions. He has apologised to the pharmacies involved and repaid monies misappropriated.
Secondly, during his period of suspension period he has had a lot of time to reflect on his actions, and the strain it has put on his family, colleagues and the pharmacy profession. He believes this period of self-reflection has improved his insight and understanding as to how he put the public at risk and broke their trust.
He now sees how much his actions were contrary to various Integrity Principles of the Code Ethics for Pharmacists, and gave various examples.
He now understands that he placed the public at risk by inappropriately disposing of the medicines in a Council collection bin, contrary to cl 66 of the PTGR, as a member of the public could have gained possession of the medicines and consumed them, putting the person severely at risk.
Knowing that his actions placed the public in harm's way he says makes him feel ashamed and disappointed. He says he sincerely regrets his conduct and wishes he could change what he did. He accepts that his actions were deeply unprofessional and unbecoming of the pharmacy profession.
Thirdly, at time of his conduct, he was at "rock bottom", following the death of his father. To deal with his grief he developed an addiction to cocaine.
Fourthly, he now has a new perspective and outlook on life. He says he lost his way and has a lot of ground to catch up on. He has taken this time to work towards being a better husband and father. He never wants to put his family into a similar situation or jeopardise their welfare again. He has put strategies in place to never allow this to happen again. He says that family is very important to him and he does not want to be a poor role model to his children. He wants to teach his children to be hard-working, honest and have integrity, as his father taught him.
Fifthly, since his suspension he has completed a number of courses:
Neurolinguistic Programming Practitioner, which he says helped him become and remain drug free since April 2019;
Disposal of Unwanted Medicines, which he says gave him better insight and was a refresher on how unwanted medicines should be disposed of;
Legislation and Pharmacy Practice, which he says allowed him to re-visit the skills and knowledge required to practice as a pharmacist in Australia ethically and in accordance with the law;
Making the most of the My Health Record system: Information about prescribed and dispensed medications, which he says helped him understand how he may have put patients' lives at harm by falsifying repeat prescriptions and creating false entries in the dispensing program;
Solution selling in pharmacy - Professionalism and Ethics, which he says helped him identify the ethical guidelines for pharmacists as health practitioners in relation to companion selling.
Sixthly, he says that he has been seeing a psychologist. He says he has learned a lot from those sessions. In this respect he relies on the recent report of Dr Pignataro of 10 July 2021 who says that Mr Azzam had presented with a persistent depressive disorder co-morbid with narcissistic and obsessive-compulsive personality features. Dr Pignataro says that Mr Azzam has a number of protective factors (education, supportive family, friends and insight) which (we infer) will reduce or eliminate chances of recidivism.
In addition, Mr Azzam relies on a number of references, both personal and professional.
[15]
The Commission's submissions
The Commission submits that the appropriate protective order is to cancel Mr Azzam's registration with a non-review period of two years. It referred to cases such as Health Care Complaints Commission v Nguyen [2019] NSWCATOD 166, Health Care Complaints Commission v Green [2018] NSWCATOD 184 and Health Care Complaints Commission v Orr [2015] NSWCATOD 124, all of which involved pharmacists or doctors inappropriately dispensing or misappropriating drugs, including Schedule 8 drugs. In all cases the Tribunal was satisfied that the conduct in question was sufficiently serious to justify suspension or cancellation.
The Commission seeks cancellation of Mr Azzam's registration for the following reasons.
First, the order is necessary to maintain high professional standards in the pharmacy profession by denouncing Mr Azzam's conduct: Prakash; Do.
Secondly, the orders are necessary to maintain public confidence in the profession and to protect the public against further misconduct by Mr Azzam. As a pharmacist in charge, Mr Azzam was entrusted with a high level of autonomy and responsibility to 'personally supervise the carrying on of the business': Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [286].
Thirdly, the seriousness of the conduct, including that each step of Mr Azzam's cooperation has involved a combination of admissions and attempts to further conceal misconduct. This pattern of behaviour that continued throughout 2019 and 2020 (supposedly after the cocaine use had stopped) is inconsistent with a reformation of character. It is not the 'clear proof to show that some years later he has established himself as a different man': Orr at [124].
Fourthly, Mr Azzam "only stopped when caught", it was not because he had developed any insight.
Fifthly, Mr Azzam does not have appropriate support mechanisms in place which would reassure the Tribunal that there was no risk of him reoffending.
[16]
Mr Azzam's submissions
Mr Azzam's counsel submitted that in determining the appropriate protective order the Tribunal needed to take into account the following mitigating factors.
First, Mr Azzam's excellent character references, and the fact that Mr Azzam had never previously been involved in disciplinary proceedings. Witnesses attested to Mr Azzam's profound change in personality at the time of his grandfather and then father.
Secondly, the uncontested evidence of Dr Pignataro establishes that Mr Azzam was suffering from mental health issues at the time of his offending, namely "presented with a persistent depressive disorder co-morbid with narcissistic and obsessive-compulsive personality features".
Thirdly, Mr Azzam's admissions and co-operation, and saving the Commission from the expense of a defended hearing shows insight.
Fourthly, Mr Azzam did not demonstrate insight at the March 2019 s 150 hearing (by admitting to the matters which were not then before the Council) as he did not admit to cocaine use until November 2019, and was using cocaine at the time of the s150 hearing.
Fifthly, and Mr Saunders placed significant weight on this matter, Mr Azzam was an impaired practitioner at the time of the offences. This was directly attributable to the deaths of his grandfather and father, and it was irrefutable that but for those two deaths Mr Azzam would have continued as a successful pharmacist on the road to partnership.
Sixthly, the conduct took place in a discrete period of five months of activity. All events were after the two deaths and proximate.
Seventhly, the conduct was undertaken with minimal planning or sophistication or care, as ultimately all funds received went into his personal bank account.
Eighthly, there was no actual harm to the public which manifested. No evidence of actual harm to the public. Dr Pignataro commented on this in first two reports.
Ninthly, there is little risk to the public of Mr Azzam reoffending. His conduct has cost him $70,000, his reputation, and almost his marriage. He is ready willing and able to undertake any supportive measures - although he personally feels he does not need to. He personally feels in a much better state, honest and transparent. He is now able to tackle whatever further vicissitudes life may throw at him. People learn from their mistakes. If necessary they can draw on support mechanisms. His character references all said he deserved a second chance. His conduct was essentially out of his control, depressive reaction the result of impairment.
Tenthly, Mr Azzam has apologised to the owners of the pharmacies involved and repaid them.
Eleventhly, Mr Azzam's good character, remorse and contrition.
Finally, counsel submitted that Mr Azzam accepts unreservedly that his conduct was a risk to the public, and does not cavil with the statement of law set out in the Commission's submissions. However, the role of the Tribunal is protective not punitive, and in determining the appropriate protective order, a period of suspension of 6 to 12 months followed by conditions on Mr Azzam's registration is sufficient to protect the public.
In response to the Commission's submissions, Mr Saunders submitted that:
1. Mr Azzam now has mechanisms in place to ensure that he will not relapse. He has provided evidence of hypnotherapy which addressed some of the reasons why he took up a drug habit. He relies on his psychological counselling from Dr Pignataro, his family support family support and learning at first hand the devastating effect that drug use had on him;
2. as to "only stopping when caught", in particular when he was terminated by the proprietor of Barone's Pharmacy in September 2018, Mr Azzam was impaired at the time. His drug taking was an all-consuming habit until April 2019. So when confronted he did not have the ability to learn from the errors of his way. He was suffering from depression and cocaine addiction;
3. his conduct was not sophisticated conduct, as evidenced by the fact the stolen gains went straight into his bank account.
[17]
Consideration
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].
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].
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].
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.
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].
There are many positive matters that Mr Azzam can point to. He appeared to be remorseful. He has shown some insight into his conduct, particular in the devastating impact it had on his family and his relationship with them. He admitted the significant misconduct, and made further frank admissions in his cross-examination. He had supportive professional references. The Commission accepts, and the Tribunal finds, that Mr Azzam was remorseful, became more cooperative over time and that his conduct at the beginning occurred at a time of immense personal stress.
All this is to his credit.
However, as to the eleven "mitigating factors" summarised above:
we accept that the referees who gave professional as well as personal references were very supportive. They all attested to Mr Azzam's profound change in personality at the time of the death of his grandfather and then his father;
while Dr Pignataro's evidence establishes that Mr Azzam was suffering from mental health issues at the time of his offending, there is no evidence that these issues have been resolved;
we accept that Mr Azzam admitted the conduct complained of;
we do not consider the fact that Mr Azzam was using cocaine at the time of the s 150 hearing is a persuasive reason for not admitting the totality of his conduct;
we do not accept the submission that it was irrefutable that but for the deaths of his father and grandfather Mr Azzam would have continued as a successful pharmacist on the road to partnership. We consider that submission considerably overstates the matter;
as to the submission that the conduct took place in a discrete period of five months of activity with minimal planning or sophistication or care, as ultimately all funds received went into his personal bank account, again we consider that that submission considerably overstates matters. Here we repeat the matters set out at [49];
we consider little weight can be placed on the submission that there was no actual harm to the public which manifested. This might be thought to be a matter of sheer luck in light of Mr Azzam's admitted use of cocaine at work ("Were you taking drugs at work, as well as outside?" "Yes". "How often? "Not that often". "Afterwards and before? Yes. Were you under the influence each time you dispensed these drugs? "I was desperate to get my hands on more." "You weren't high all the time, but were governed by your addiction? "Yes") did not lead to a dispensing error.
similarly, it might also be thought to be a matter of fortune that one of his children did not find the drugs stored in his home or that a member of the public did not find the drugs abandoned in the Council bin;
as to there being little risk to the public of Mr Azzam reoffending, we are not so persuaded. As we explain below, we accept that Mr Azzam is remorseful, but are concerned that he feels that he does not need to undertake drug counselling;
we accept that Mr Azzam, has apologised to the owners of the pharmacies (albeit belatedly) and repaid them;
we accept that Mr Azzam has demonstrated remorse and contrition.
Having considered all the submissions and the applicable principles, we consider that there should be an order cancelling Mr Azzam's registration. We consider that, objectively, his professional misconduct is of such a serious nature that the only disciplinary order appropriate is the cancellation of his registration. We consider that any order short of deregistration would be an inadequate response to the seriousness of his misconduct: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408.
We have reached that view for the following principal reasons.
First, the objective seriousness of the conduct. Mr Azzam's conduct involved knowingly misappropriating drugs, creating false dispensing records, misusing prescriptions and using his position as a pharmacist for his own gain which are particularly serious forms of professional misconduct: see Ahmad at [309]; Orr at [121].
Secondly, the cancellation of Mr Azzam's registration as a pharmacist is necessary to emphasise to other practitioners that such serious professional misconduct is unacceptable and will not be tolerated. The public must be protected from practitioners who would engage in similar behaviour.
Thirdly, the orders are necessary to maintain public confidence in the profession and to protect the public against further misconduct by Mr Azzam. As a pharmacist in charge, Mr Azzam was entrusted with a high level of autonomy and responsibility to 'personally supervise the carrying on of the business': Ahmad at [286]. While working as a pharmacist in charge, Mr Azzam misappropriated baby formula, misused prescriptions and incorrectly dispensed drugs. We accept the Commission's submission that the public cannot place its trust and confidence in Mr Azzam that he can store and handle drugs and prescriptions while unsupervised.
Fourthly, we accept the Commission's submission that Mr Azzam has not taken sufficient steps to put protective systems in place to avoid the temptation of drugs in the future. In this respect, we are greatly concerned that Mr Azzam did not produce persuasive evidence that he had taken steps to prevent his behaviour from reoccurring. Dr Pignataro 's second report stated that Mr Azzam presented with a persistent depressive disorder co-morbid with narcissistic and obsessive-compulsive personality features. However, neither that report, nor the recent one of July 2021, state that these issues have been resolved. We accept the Commission's submission that these reports do not provide a basis for the Tribunal to be satisfied that the risk of this behaviour reoccurring has been reduced or eliminated should Mr Azzam experience such stress again.
We were surprised that Mr Azzam never entered a formal drug treatment program. We were more surprised to hear the submission that Mr Azzam is ready willing and able to undertake any supportive measures "although he personally feels he doesn't need it". We feel that this submission reflects a lack of insight on behalf of Mr Azzam. When asked by his counsel "What strategies have you implemented in your professional life to make sure that this never happens again", his reply was words to the effect of "What I went through I would not want my enemy to go through such a dark place. I never want to be in that place. I am very grateful to have the support of my family. They watched and hounded me. Don't want to be a bad role model". When asked "How can we be sure you won't relapse?" he responded, "What I put my family through, that is the worst thing that, fights within family".
[18]
Costs
This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282.
Mr Azzam did not oppose an order for costs,
Mr Azzam is to pay the Commission's costs as agreed or assessed.
[19]
Orders
The Tribunal makes the following orders:
1. Complaints One and Two are established.
2. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) the registration of the respondent is cancelled.
3. The respondent may not make an application for review of Order 2 of these orders for a period of two years from the date of these orders.
4. The respondent is to pay the applicant's costs as agreed or as assessed.
[20]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 August 2021
While we accept that Mr Azzam genuinely does not want to return to "that place", or to "put" his family through the experience again, we are not persuaded that he has appropriate strategies in place to achieve that. There is also no suggestion that Dr Pignataro is providing ongoing support in relation to the drug abuse that apparently caused the misconduct. Mr Azzam's involvement with Dr Pignataro is now sporadic, and unlikely to be a protective factor in the event of a relapse.
The Tribunal considers that Mr Azzam's registration should be cancelled, and that he should not be permitted to apply for re-registration for a period of two years from the date of these reasons.