Health Care Complaints Commission v Beck

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 8715/97 LOWER COURT JUDICIAL OFFICER : Solomon DCJ

COUNSEL : M J Joseph SC (Appellant) A C Bennett SC/M G Lynch (Respondent) SOLICITORS : D M Swain (Appellant) Ebsworth & Ebsworth (Respondent) CATCHWORDS : Certiorari and mandamus; error of law; failure to give adequate reasons; failure to accord procedural fairness; professional misconduct of pharmacist; weight to be accorded to the decision of the Pharmacy Board by District Court; nature of appeal to District Court DECISION : Appeal allowed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40789/98 DC 8715/97 SHELLER JA STEIN JA FITZGERALD JA

HEALTH CARE COMPLAINTS COMMISSION v Harry Herbert BECK

1 SHELLER JA: I agree with Fitzgerald JA. 2 STEIN JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: The Health Care Complaints Commission has applied to this Court under s69 of the Supreme Court Act 1970 for an order quashing orders made by the District Court on an appeal under s22 of the Pharmacy Act 1964 and an order that the District Court determine that appeal according to law. 4 The appeal to the District Court was brought from a decision of the Pharmacy Board on a complaint made by the Commission against Harry Herbert Beck. The Board's decision, in which the complaint is recorded, is annexure 1 to these reasons. The District Court allowed the appeal, set aside the Board's order that Beck's name be removed from the Register of Pharmacists for NSW, and instead suspended him for three months from 1 May 1998, fined him $5000, and ordered him to pay the Commission's costs. 5 The District Court appeal was "in the nature of a new hearing at which new evidence may be given", Pharmacy Act 1964, subs22(2). and Beck gave additional evidence and called witnesses. In addition, the evidence before the Board and its decision were tendered by consent in the District Court, initially by Beck and later, at the Judge's insistence, by the Commission. 6 Further, admissions were made to the District Court by Beck by his counsel. Those admissions included a matter which Beck had denied on oath before the Board. On that occasion, Beck admitted complaint 1, complaint 2 other than particulars 2,6 and 23 but including the allegation that he had been guilty of professional misconduct, and the particulars of complaint 3 but not the allegation that he is not of good character. In the District Court, Beck made the same admissions, together with admissions of particulars 2 and 6 of complaint 2. 7 Beck's admission of particulars 2 and 6 of complaint 2 implicitly accepted that he had had knowledge of certain matters at the times material to the allegations which were the subject of those particulars contrary to his sworn evidence before the Board. Beck did not give evidence in the District Court that his material evidence to the Board had been mistaken, e.g., because he had on that occasion forgotten what he had known at the relevant times. The Commission argued in this Court that, although not included in the particulars of complaint 3, the District Court should have held that Beck's material evidence to the Board was false, and taken those falsehoods into account in considering complaint 3, which alleged that Beck is not of good character. Whether or not that is so, Smith v NSW Bar Association (No.2) 91992) 176 CLR 256; McBride v Walton (unreported), NSWCA, 15 July 1994; Uranerz (Aust) Ltd v Hale (1980) 30 ALR 193. Beck's change of position, and the absence of any explanation for that course, was plainly relevant to the proper assessment of the credibility and reliability of his evidence. 8 It is possible to summarise the District Court's reasons for judgment briefly. 9 Complaint 2, particular 23(a), (b) and (c)

The District Court found that Beck had provided information that was false and misleading in a material particular on each of the specified occasions, but that he did not knowingly do so. No elaboration was provided in respect of particulars 23(b) and (c), but it was held in relation to particular 23(a) that Beck had "… made an honest mistake…". 10 Complaint 3

(a) The District Court next found that Beck was of good character, in that he "… is held in good repute as to his character in the general community and by many of his business and professional colleagues".

(b) Reference was made "to the convictions which were handed down by Mr Evans, Magistrate, on 21 June 1995 at the Local Court at Hornsby", which related to 10 convictions of Beck for supplying a restricted substance, diazepam, to two persons, Mr Michael Kane and Mr Anthony Maguire, contrary to subs9(1)(b) of the Poisons Act 1966. The Judge said that he had "heard explanations given by [Beck] concerning the matters in respect of which he was convicted", and was "… satisfied that [Beck] in providing the substances to Michael Kane was not motivated by greed. I am satisfied that he was motivated by misplaced charity". His Honour also stated that he was "… satisfied that those substances were provided to Anthony Maguire as a result of threats being made to [Beck] by Mr Maguire". No reference was made to Beck's unlawful supply of substances contrary to the Poisons Act on numerous other occasions, as particularised in relation to Complaint 2, or to the fact that, when sentencing Beck for the 10 offences of which he was convicted, the magistrate took 140 other offences into account.

(c) The only other matters referred to by the District Court in concluding that Beck is of good character were:

(i) unspecified "… evidence and … documents tendered in relation to the dispensing by [Beck] of drugs contrary to the Poisons Act "; (ii) unspecified "… evidence in relation to the allegation [Beck] knowingly provided information which was false and misleading"; and (iii) unspecified "… evidence of the appellant's repute in the community", and "references" and a "petition". 11 The remainder of the District Court judgment dealt with penalty, commencing with the following passage: "It is necessary for me to look to the totality of the complaints which have been made out against [Beck]. They are complaints which relate to serious breaches by [Beck] of the professional standards which are expected of a registered pharmacist. Further, [Beck] over a long period of time committed serious breaches of his professional code of ethics. In deciding which orders are appropriate to the circumstances established by the evidence adduced on the hearing of this appeal, I will take into account, one, the gravity of [Beck's] misconduct, two, the protection of the community, three, the maintenance of the standards of the profession, four, the steps taken by [Beck] to ensure there is no repetition of such misconduct and five, the circumstances of [Beck] at the relevant time".

(b) His Honour went on to state that he was "… satisfied that steps had been taken by [Beck] which will ensure the protection of the community in the future. In that regard I note that [Beck] has engaged the services of two pharmacists to monitor his practice…. Each of the pharmacists has indicated that [Beck] demonstrates an efficiently run pharmacy. Mr Frost [one of the two pharmacists] in his evidence before the Board was of opinion that it is unlikely that [Beck] would in the future reoffend".

(c) Reference was then made to counselling which Beck had received from Dr Wendy Walker, that he had responded well to her counselling, and that her reports indicated "… that the chances of [Beck] reoffending are minimal".

(d) Next, reference was made to the opinion of a psychiatrist, Dr Bruce Westmore, "… that the chances of [Beck] reoffending [are] minimal".

(e) The matters to which reference had been made and "… evidence given by [Beck] as to the changes he has made to the running of his practice …" persuaded his Honour "… that the standards [of the pharmacy profession] will be maintained…".

(f) His Honour also accepted that the reasons why Beck's practices had been "deficient" were that "… he was involved in extra-curricular activities to the detriment of his practice", and "… suffering from emotional problems caused by his aging parents".

(g) Finally, before indicating the orders which he proposed to make, his Honour said: "I must also look to the duration of the time which [Beck] has practised pharmacy … a period of 26 years…"

According to his Honour, Beck's misconduct was "… inconsistent with his professional conduct which he demonstrated over that period of time, and it is also inconsistent with his reputation in the profession and the general community". 12 The Commission argued that the District Court misunderstood its function and failed to give adequate reasons for upholding Beck's appeal from the Board. It was correctly submitted that a failure to give adequate reasons is not only an error of law but also a procedural unfairness. Cypressvale Pty Ltd v Retail Shop Leases Tribunal (1996) 2 Qd.R 462 at 475; Public Service Board of NSW v Osmond (1986) 159 CLR 656, per Deane J at 676. In considering whether the District Court erred in law, this Court is restricted to the District Court's order and reasons Craig v South Australia (1995) 184 CLR 163; Supreme Court Act, s69.. However, in determining whether or not there was a jurisdictional error or procedural unfairness by the District Court, account may be taken of any relevant material, Craig 184 CLR 163, 176. including the Board's reasons for its decision and the transcript of the District Court hearing. 13 The course adopted by the parties, including Beck's admissions and the consent tendering of the evidence before the Board and its decision, necessarily affected the District Court's exercise of its jurisdiction under s22 of the Pharmacy Act. While the District Court was entitled, and indeed bound, to form its own conclusions on the issues on which the parties remained in dispute, it was not entitled to disregard the opinion of the Board on matters which the parties did not seek to relitigate in the District Court or on matters on which the Board had specialist knowledge, such as the standards applicable to pharmacists and the practice of pharmacy. Workers Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221; Law Society of NSW v Bannister (1993) 4 LPDR 24; Law Society of NSW v Foreman (1994) 34 NSWLR 408. 14 The District Court totally ignored the Board's reasons for its decision, which were not referred to in the District Court judgment. The District Court's reasons for judgment did not explain that omission. However, early in the hearing in the District Court, after the transcript of the Board's proceedings and its decision had been tendered, the judge had made it clear that he proposed to pay no heed to the Tribunal's reasons. He said: "Well, as I understand it, this is a fresh hearing and what the previous tribunal determined is not relevant. I've read what it had to say but I am not bound by what they had to say and not affected by what they had to say." 15 Further, no explanation was given of the District Court's assessment of Beck's credibility and reliability, or of its consideration of factors material to that issue, including his acceptance before the District Court that he had wrongly denied knowledge in relation to particulars 2 and 6 of Complaint 2 before the Board. 16 It is unnecessary to consider the other matters raised by the Commission's extensive alternative arguments. The matters to which reference has been made are sufficient to establish that the District Court misunderstood the nature of its function and failed to accord the Commission procedural fairness. 17 The Commission is accordingly entitled to have the District Court's decision quashed and the appeal from the Board remitted to the District Court to be determined according to law. Beck must pay the Commission's costs of the proceeding in this Court.

Findings of a Board of Inquiry heard on 14, 15 and 16 July 1997 into a complaint of professional misconduct made under the provisions of section 19D of the Pharmacy Act 1964 ("the Act"), by Merrilyn Walton, Commissioner, Health Care Complaints Commission, against Harry Herbert Beck, 11A Walter Street, Wahroonga NSW 2076, a pharmacist registered in New South Wales.

The members of the Board of Inquiry were: Ms Helen Barry Bjur LLB Chairman Mr Frank Payne OAM PhC FPS FACPP Professor S I Benrimoj B Pharm (Hons) PhD MRPharmS MPS Mr Mathew Dicker, instructed by Mr David Harris, Health Care Complaints Commission, appeared for the complainant.

Dr Annabelle Bennett SC instructed by Mr Leon Ratner, Leon M Ratner Solicitors, appeared for the respondent.

The complaints before the Board were threefold and were that: 1. Harry Herbert Beck has been convicted in New South Wales of ten (10) offences. 2. Harry Herbert Beck has been guilty of professional misconduct within the meaning of section 19D(1)(c) of the Act in that at Hornsby in the State of New South Wales the pharmacist has engaged in conduct which demonstrates a lack of adequate knowledge, judgment and care in the practice of pharmacy and has engaged in conduct relating to the practice of pharmacy that is improper and unethical. 3. Harry Herbert Beck is not of good character.

The particulars of the complaints before the Board were as follows:

On 21 June 1995 at the Local Court, Hornsby NSW 2077 before Mr W Evans LCM, Mr Beck was convicted of ten offences that, between 1 April 1993 and 10 May 1994, not being a medical practitioner, dentist or veterinary surgeon in the lawful practice of his profession as such, he did supply a restricted substance, diazepam, contrary to section 9(1)(b) of the Poisons Act (1966).

That on numerous occasions between about 1 January 1993 and 9 May 1994, the pharmacist, not being a medical practitioner, dentist or veterinary surgeon in the lawful practice of his profession as such, did supply to Mr Michael Kane a restricted substance, diazepam, commonly known as Valium injections, other than on and in accordance with the prescription of a medical practitioner, dentist or veterinary surgeon, contrary to section 9(1)(b) of the Poisons Act 1966.

That on numerous occasions between about 1 January 1993 and 9 May 1994, the pharmacist, did supply to Mr Michael Kane a restricted substance, diazepam, commonly known as Valium injections without prescription when he knew, or ought to, have known, that the Valium injections so supplied were being, or were likely to be, abused.

That on numerous occasions between about 10 May 1994 and 1 July 1994, the pharmacist, not being a medical practitioner, dentist or veterinary surgeon in the lawful practice of his profession as such, did supply to Mr Anthony Maguire a restricted substance, diazepam, commonly known as Valium injections, other than on and in accordance with the prescription of a medical practitioner, dentist or veterinary surgeon, contrary to section 9(1)(b) of the Poisons Act, 1966, when such substance was prescribed for the purposes of section 16 of the Poisons Act 1966.

That on numerous occasions between about 1 January 1993 and 1 July 1994, the pharmacist, not being a medical practitioner, dentist or veterinary surgeon in the lawful practice of his profession as such, did supply to or for Rodney Yau a restricted substance, diazepam, commonly known as Valium injections, other than on and in accordance with the prescription of a medical practitioner, dentist or veterinary surgeon, contrary to section 9(1)(b) of the Poisons Act 1966, when such substance was prescribed for the purposes of section 16 of the Poisons Act 1966.

That on about 38 occasions between 16 January 1993, and 6 May 1994, the pharmacist did supply the drug of addiction, methadone, commonly known as Physeptone tablets on the dates and the quantities shown in the Schedule annexed hereto and marked with the letter "A", upon forged or altered prescriptions when he knew, or ought to have known, that such prescriptions were forged or altered.

That on about thirty eight (38) occasions between 16 January 1993 to 6 May 1994, the pharmacist did supply the drug of addiction, methadone, commonly known as Physeptone tablets, on the dates and the quantities shown in the Schedule annexed hereto and marked with the letter "A", upon forged or altered prescriptions when he knew, or ought to have known, that the Physeptone tablets so supplied were being, or were likely to be, abused.

That on about three (3) occasions between 6 November 1993 to 31 , and 31 December 1993, the pharmacist did supply the drug of addiction, Pethidine, on the dates and in the quantities shown in the Schedule annexed hereto and marked with the letter "B", upon forged or altered prescriptions when the pharmacist knew, or ought to have known, that such prescriptions were forged or altered.

That on 16 January 1993, 27 January 1993, 12 February 1993, 12 March 1993 and 13 October 1993 the pharmacist did dispense a prescription for a drug of addiction, methadone, commonly known as Physeptone 10mg tablets when he was not familiar with the prescriber's handwriting, did not know the person for whom the drug was prescribed and had not verified with the purported prescriber that the prescription was written by him, contrary to Regulation 64(6) of the Poisons Act 1966.

That on or about the following dates, the pharmacist did dispense, contrary to Regulation 64(1) of the Poisons Act 1966 a prescription for a drug of addiction, methadone, commonly known as Physeptone 10mg tablets, which did not appear on the face of it to have been issued in accordance with the requirements of Regulation 62 of the Poisons Act 1966 in that it not comply with the requirements of Regulation 62(2)(b) that no other preparation be included in that prescription: 8 April 1993, 30 July 1993, 18 September 1993, 13 October 1993, 22 October 1993, 13 November 1993, 3 December 1993, 15 December 1993, 23 December 1993, 31 December 1993, 25 January 1994, 1 February 1994, 4 March 1994, 16 April 1994, 6 May 1994.

That on or about 26 April 1994, the pharmacist did dispense a prescription for a drug of addiction, methadone, commonly known as Physeptone 10 mg tablets when the prescription bore a date more than six months prior to the date on which its dispensing was requested contrary to Regulation 64(5)(f) of the Poisons Act 1966.

That on or about 23 January 1993, 5 March 1993 and 1 October 1993, the pharmacist did dispense, contrary to regulation 64(1) of the Poisons Act 1996, a prescription for a drug of addiction, methadone, commonly known as Physeptone 10 mg tablets which did not appear on the face of it to have been issued in accordance with the requirements of Regulation 62 of the Poisons Act 1966 in that it did not comply with the requirements of Regulation 62(2)(a)(i) in not showing the date on which it had been written.

That on 24 December 1993, the pharmacist did dispense, contrary to Regulation 64(1) of the Poisons Act 1966, a prescription for a drug of addiction, Pethidine, which did not appear on the face of it to have been issued in accordance with the requirements of Regulation 64 of the Poisons Act 1966, in that it did not comply with the requirements of Regulation 64(2)(a)(i) in not showing the date on which it had been written.

That on 19 January 1993, 13 October 1993, 6 November 1993, 13 November 1993, 16 April 1994 and 6 May 1994, the pharmacist did dispense, contrary to Regulation 64(1) of the Poisons Act 1966, a prescription for a drug of addiction, methadone, commonly known as Physeptone 10mg tablets, which did not appear on the face of it to have been issued in accordance with the requirements of Regulation 62 of the Poisons Act 1966 in that it did not comply with the requirements of Regulation 62(2)(a)(iv) that the quantity to be dispensed be shown both in words and in figures.

That on or about 17 December 1993, the pharmacist did dispense without due care a prescription for a drug of addiction, methadone, commonly known as Physeptone 5mg tablets in that he dispensed Physeptone 10mg tablets on a prescription requesting Physeptone 5mg tablets.

That between about 10 March 1994 and 18 March 1994, the pharmacist did supply to Mr Shane Hill the restricted substance flunitrazepam, commonly known as Rohypnol 2mg tablets, in a quantity not in accordance with recognised therapeutic standards of what is medically appropriate.

That on or about 30 November 1993, 20 December 1993, 4 March 1994 and 8 April 1994, the pharmacist did dispense a prescription for a restricted substance specified in Appendix D to the Poisons Regulations, dextropropoxyphene, commonly known as Paradex tablets, when the prescription bore a date more than six months prior to the date on which its dispensing was requested, contrary to Regulation 27(7) of the Poisons Act 1966.

That on or about 18 March 1994 and 13 May 1994, the pharmacist did dispense a prescription for a restricted substance specified on Appendix D to the Poisons Regulations, flunitrazepam, commonly known as Rohypnol 2 mg tablets, when the prescription bore a date more than six months prior to the date on which its dispensing was requested, contrary to Regulation 27(7) of the Poisons Act 1966.

That on or about 5 April 1994, the Pharmacist did dispense a prescription for a restricted substance, ethinyloestradiol, commonly known as Triphasil tablets, when the prescription bore a date more than twelve months prior to the date on which its dispensing was requested, contrary to Regulation 27(8) of the Poisons Act 1966.

That on or about 10 February 1994, 1 March 1994, 9 March 1994, 4 March 1994, 7 April 1994, 22 April 1994 and 6 May 1994, the pharmacist did not store the duplicate of a prescription for a prescribed, restricted substance, nandrolene, commonly known as Deca-durabolin injections, in a place separate from the place of storage of any other kind of prescription, contrary to Regulation 31E(4) of the Poisons Act 1966.

On or about 21 April 1994, the pharmacist did not store the duplicate of a prescription for a prescribed restricted substance, testosterone, commonly known as Andriol 40 mg capsules, in a place separate from the place of storage of any other kind of prescription, contrary to Regulation 31E(4) of the Poisons Act 1966.

That on or about 7 March 1994 and 30 April 1994, the pharmacist did not store the duplicate of a prescription for a drug of addiction, dexamphetamine, in a place separate from the place of storage of any other kind of prescription, contrary to Regulation 64(4)(b3) of the Poisons Act 1966.

That on or about 28 April 1994, 6 May 1994, 22 April 1994 and 4 May 1994, the pharmacist did not store the duplicate of a prescription for a drug of addiction, morphine, in a place separate from the place of storage of any other kind of prescription, contrary to Regulation 64(4)(b3) of the Poisons Act 1966.

In purported compliance with a Notice served upon the pharmacist under Section 35(1) of the Poisons Act 1966, the pharmacist in a reply thereto dated 11 July 1994 did knowingly provide information that was false and/or misleading in a material particular, contrary to Section 35(4) of the Poisons Act 1966 in that the pharmacist: (a) provided details of the pharmacist's purchase of diazepam from F H Faulding, but failed to disclose that the pharmacist had also purchased 25 boxes of five diazepam injections from QDL Pharmaceuticals. (b) provided particulars of the supply of the pharmacist of 30 boxes of five injections of diazepam upon prescription and provided particulars of the supply of Valium injections to or for Rodney Yau without prescription but failed to provide particulars of the supply by the pharmacist of numerous other boxes of Valium injections. (c) failed to provide particulars of the supply by the pharmacist of Valium injections without prescription to Mr Michael Kane and Mr Anthony Maguire.

1. On 21 June at the Local Court at Hornsby before Mr W Evans LCM, the pharmacist was convicted of ten (10) offences that between 1 April 1993 and 10 May 1994, not being a medical practitioner, dentist or veterinary surgeon in the lawful practice of his profession as such, he did supply a restricted substance, diazepam, contrary to section 9(1)(b) of the Poisons Act 1966.

2. On 21 June 1995 at the Local Court at Hornsby before Mr W Evans LCM, the pharmacist was found to have committed one hundred and forty (140) offences that between 1 April 1993 and 10 May 1994, not being a medical practitioner, dentist or veterinary surgeon in the lawful practice of his profession as such, he did supply a restricted substance, diazepam, contrary to section 9(1)(b) of the Poisons Act 1966 and the said offences were dismissed under the provisions of section 556A of the Crimes Act 1900.

3. On numerous occasions between about 1 January 1993 and 1 July 1994, the pharmacist dispensed drugs of addiction in the manner particularised in particulars 8, 9, 10, 11 ,12, 13, and 14 of Complaint 2, herein, contrary to the Poisons Act 1966 and the Regulations made thereunder.

4. In purported compliance with a notice served upon the pharmacist under Section 35(1) of the Poisons Act 1966, the pharmacist in a reply thereto dated 11 July 1994 did knowingly provide information that was false and/or misleading in a material particular, contrary to Section 35(4) of the Poisons Act 1966 in that the pharmacist: (a) provided details of the pharmacist's purchase of diazepam from F H Faulding but failed to disclose that the pharmacists had also purchased 25 boxes of five diazepam injections from QDL Pharmaceuticals. (b) provided particulars of the supply of the pharmacist of 30 boxes of five injections of diazepam upon prescription and provided particulars of the supply of Valium injections to or for Rodney Yau without prescription but failed to provide particulars of the supply by the pharmacist of numerous other boxes of Valium injections. (c) failed to provide particulars of the supply by the pharmacist of Valium injections without prescription to Mr Michael Kane and Mr Anthony Maguire.

Counsel for the respondent admitted Complaint 1 and conceded that the particulars of Complaint 2 constituted professional misconduct/

The particulars were admitted but she disputed parts contained in particulars 2 and 6 of that complaint which referred to the fact that the pharmacist knew or ought to have known that the substance supplied was being or likely to be abused, but actual knowledge that it was being abused was denied.

In relation to Complaint 3, counsel for the respondent admitted Particulars, but disputed that the pharmacist did knowingly provide information that was false and/or misleading as contained in Particular 4. That the pharmacists is not presently of good character was denied.

Having regard to the admissions made by the pharmacist, the Board was required to consider the facts and circumstances which gave rise to the complaint of professional misconduct and make appropriate orders pursuant to section 20 of the Act.

Counsel for the complainant tendered in evidence a file of documents which included, inter alia, statements by the following persons: (a) Carolyn Sparkes, Pharmaceutical Adviser, Pharmaceutical Services Branch, NSW Health Department, dated 1 July 1994 and 12 September 1994. (b) David North B Pharm MPS, community pharmacist, Centretown Pharmacy Wollongong NSW 2500, dated 5 October 1995. (c) Dr Raymond Seidler, medical practitioner and medical educator in drug and alcohol issues, Royal Australian College of General Practitioners, dated 21 April 1997. (d) Grahame Cox, Pharmaceutical Adviser, Pharmaceutical Services Branch, NSW Health Department, dated 7 July 1997.

Ms Sparke's report described her visit to the Florence Street Pharmacy, 21 Florence Street, Hornsby NSW 2077, on 1 July 1994, in the company of Mr Grahame Cox. A transcript of a conversation between Mr Cox and Mr Beck is contained in that report. Her second report described a meeting between Mr Beck, and Mr Cox and herself, at the offices of the Pharmaceutical Services Branch, North Ryde NSW 2113, on 12 September 1994. A transcript of a conversation between Mr Grahame Cox and Mr Harry Beck is contained in that report.

Mr David North's report is strongly critical of Mr Beck's conduct, stating that Mr Beck's behaviour and attitude are not indicative of the standard of professional practice expected of a pharmacist.

Mr North condemned Mr Beck's behaviour, asserting that it showed a total disregard for his responsibilities as a pharmacist in administering the Regulations of the Poisons Act. It was Mr North's opinion that Mr Beck's behaviour would attract the strong disapproval of professional peers of good repute and competence.

Dr Seidler's report discusses the dangers of supplying Physeptone tablets to a patient who is receiving treatment in a methadone program, or to a patient who is known to be addicted to opiates. In addition, he adverts to the danger of providing Valium ampoules for self-administration to any patient whether they be methadone clients or ordinary patients. He states the risk of misadventure or of collapse associated with the use of this potent tranquilliser cannot be overestimated.

Mr Cox's statement describes a conversation between Mr Cox and Ms Sparkes, and Dr A W Ross, medical practitioner, which took place on 7 July 1994 at Dr Ross's surgery, 1070 Pacific highway, Pymble NSW 2073. Dr Ross was shown fourteen prescriptions for Physeptone and one prescription for pethidine. He indicated that he had not signed any of the prescriptions shown to him.

No witnesses were called by the complainant to give evidence.

On behalf of the complaint, it was submitted that the Board could find, on the evidence, that Mr Beck knew that Mr Michael David Kane was on a methadone program at the relevant time. It was submitted that the sale to Mr Kane of diazepam ampoules, without a prescription, was aggravated by the fact that Mr Kane was on a methadone program at the time.

Complaint 2 particularises the supply of Valium ampoules to Mr Kane on numerous occasions between 1 January 1993 and 9 May 1994. No particulars of that complaint are provided which allege that Mr Beck knew that Mr Kane was in fact enrolled in a methadone program at the relevant time. The Board therefore makes no finding as to Mr Beck's knowledge of Mr Kane's enrolment as it arises outside the ambit of the complaint.

On the respondent's behalf a number of witnesses, including Mr Beck, gave evidence to the Board. In addition, a number of written testimonials were tendered by counsel for the respondent.

In relation to the complaint concerning Mr Kane, Mr Beck stated that at the time he supplied Valium ampoules to Mr Kane he did not know Mr Kane was abusing Valium. He acknowledged in evidence that he now believed there was a likelihood that Valium was being abused and agreed that he ought to have known at the time. He also stated that he believed Mr Kane was addicted to Physeptone because of the number of occasions on which he received the drug. He believed at the time Mr Kane was addicted to Valium. He was aware that Mr Kane was seeing various doctors over time to obtain the drugs he wanted.

He agreed that the supply of Valium ampoules, as in the case concerning Mr Kane, over an extended period of time, was not usual, Valium in tablet form being the more commonly prescribed form. He denied knowing that Mr Kane was abusing the drug, but stated there was a fine line between dependence and abuse.

The Board does not accept Mr Beck's assertions that he did not know Mr Kane was abusing Valium. Mr Beck knew Mr Kane to be addicted to Valium. He was supplying Valium ampoules to Mr Kane which he admits was an unusual practice. He knew Mr Kane was a methadone patient and knew him to be addicted to methadone, and he knew Mr Kane was a heroin user. He also knew that Mr Kane was seeing a number of doctors to obtain the drug.

The Board finds that Mr Beck knew Mr Kane was abusing Valium.

In relation to Complaint, Particular 4, concerning the Notice under section 35(1) of the Poisons Act 1966, issued by the NSW Health Department, Mr Beck stated in evidence that his failure to respond to that notice to disclose QDL (Queensland Drugs Limited) as a supplier of Valium was a complete oversight at the time. Mr Beck had been spoken to by pharmaceutical advisers from the Pharmaceutical Services Branch on 1 July 1994 about the supply of drugs without prescription. On that day he was given a Notice pursuant to section 35(1) of the Poisons Act 1966, requiring him to account for all the diazepam ampoules that had come into his possession during the relevant period. Mr Beck was given two weeks to respond to the Notice.

The Board is unable to accept Mr Beck's evidence that his failure to mention QDL as a supplier of Valium was a complete oversight. On 1 July 1994, when Mr Beck was spoken to by a pharmaceutical adviser from the NSW Health Department, he knew the inquiry was in relation to alleged breaches of the Poisons Regulations. He admitted to providing false information to inspectors on that day about the supply of Valium to Mr Kane and Mr A Maguire. He explained to the Board, in evidence, that he was not under oath during that interview when he supplied false information. He had already lied on 1 July 1994. He knew the inquiry was a serious one. In addition, on the occasion when the Notice was given to him, Mr Cox alerted him to the possibility of other suppliers: Mr Cox: Harry, what pharmaceutical wholesalers do you use to obtain your ethical products. Mr Beck: Fauldings Rydalmere. Mr Cox: Only Fauldings, don't you use any others, say Andrews? Mr Beck: We have been using API for three months as a second wholesaler.

The Board does not accept Mr Beck's evidence that failure to reveal the purchase of 25 boxes of 5 diazepam injections from QDL was an oversight because QDL had not been used by Mr Beck for some months. The Board finds that Mr Beck, in his reply dated 11 July 1994 to the Notice served upon him pursuant to section 35(1) of the Poisons Act 1966, did, as alleged in particular 4(a) knowingly provide information that was false and/or misleading contrary to section 35(4) of the Poisons Act 1966.

Mr Beck admits the supply of schedule 8 drugs on forged prescriptions. He stated in evidence that he was aware of his obligations under the Poisons Act and Regulations. He did not excuse his actions by means of deficiency in knowledge of the Poisons Act or Regulations. However, he stated that at the time, he was not aware of a provision under the Poisons Regulations regarding long term prescribing of methadone which directs that prescribers must obtain approval from the NSW Health Department to prescribe items such as methadone for more than two months.

Mr Beck made no enquiry of the NSW Health Department about the continued supply of methadone to Mr Kane.

Mr Beck maintains that in relation to one of the prescriptions for Physeptone written by Dr Ross, he had telephoned Dr Ross to confirm that the prescription was in the doctor's handwriting. He failed to mention that conversation to the pharmaceutical advisers from the NSW Health Department, at the time of their enquiries.

Dr Ross is now deceased. Discussions between Dr Ross and the pharmaceutical advisers were not directed to this issue. Given Mr Beck's admission that he lied about other matters to the pharmaceutical advisers, the Board is unable to accept Mr Beck's evidence as to the verification of the prescription by Dr Ross.

Dr Wendy-Louise Walker BA PhD, Consultant Psychologist, prepared two reports dated 5 June 1995 and 12 June 1997. She gave evidence that Mr Beck had a behavioural flaw in his character in that he was so eager to help others that he was unable to say no. She stated that he had worked hard to modify this weakness. In addition, she suggested that Mr Beck's actions could in part be explained by a grief reaction after his father's death and his mother's admission to an Alzheimer's unit.

The Board places limited weight on Dr Walker's evidence. It accepts the evidence as to Mr Beck's "weakness" and to the stresses placed on him by his parents' deteriorating conditions and other family pressures. However, the nature of the offences before the Board go well beyond the supply of Valium to Mr Kane and Mr Maguire and Mr Beck's "desire to help" persons with whom he had developed a relationship, as was the case with Mr Kane.

Dr Bruce Westmore MB BS M Crim FRANZCP, Forensic Psychiatrist, prepared two reports in respect of Mr Beck dated 19 May 1997 and 4 June 1997. His second report describes Mr Beck's account of the events which led to his facing a complaint of professional misconduct. He stated that Mr Beck understood that he had done a disservice to those patients to whom he had supplied restricted medication without a prescription, and he also understood he had done himself a great disservice. In his 12 June 1997 report, Dr Westmore stated that it was his opinion that the risks of Mr Beck's re-offending would appear to be minimal.

In evidence to the Board, Dr Westmore agreed that he had not been able to, on a single cross-sectional interview, gain a full grasp or understanding of Mr Beck's personality.

Mr John Bell B Pharm FPS FACPP, community pharmacist, John Bell Pharmacy, 6 Oxford Street, Woollahra NSW 2025, prepared a report dated 13 June 1997 and gave evidence on behalf of Mr Beck to the effect that he now approves of Mr Beck's practice as a pharmacist. He strongly disapproved of the conduct which is the subject of the complaint. Mr Bell attended Mr Beck's pharmacy for a period of a few hours for the purpose of preparing a report as to the procedures being carried out in the pharmacy. On the basis of that visit he found the procedures in place to be quite satisfactory.

In the opinion of the Board, Mr Bell's evidence is not of great assistance. He attended Mr Beck's pharmacy for a few hours only to observe practices in place. He is able to give evidence about appropriate procedures in Mr Beck's pharmacy and to judge those procedures to be satisfactory. He is not able to address the issue of Mr Beck's future conduct in relation to his professional and legal responsibilities.

Mr Barry Frost B Pharm FPS, community pharmacist, Wamberal Pharmacy and Wamberal village Pharmacy, prepared a report commencing 4 August 1995 which consist of entries over a number of dates.

Essentially, Mr Frost concluded that the practice of pharmacy as carried out in Mr Beck's pharmacy is now of a high standard. Mr Frost directed his report to the shortcomings that had existed in the systems and procedures in place in the pharmacy. In evidence, Mr Frost stated that he was "quite comfortable" with procedures now in place in the pharmacy. He believed Mr Beck's attitude to pharmacy had changed and Mr Frost was comfortable with that attitude. He does not have the expertise to comment of Mr Beck's character, and stated that he was not in a position to give a guarantee that the sort of behaviour complained of would not be repeated, but was not uncomfortable with the idea of Mr Beck's continuing to practise as a pharmacist.

The Board accepts Mr Frost's evidence as to the appropriateness of the systems and procedures now in place in Mr Beck's pharmacy. However, the standard of present practice is not the only consideration for the Board. The Board must look at the totality of the circumstances which gave rise to the professional misconduct, and to the question of Mr Beck's character.

The second complaint against the pharmacist alleges professional misconduct pursuant to section 19D(1)(c) of the Act. Complaint 2, subject to certain matters in dispute which have already been addressed, was admitted.

Complaint 3 alleges that the pharmacist is not of good character, pursuant to section 19D(1)(f) of the Act. This complaint is not admitted.

Counsel for the complainant submitted that the proper and appropriate order for the Board to make was to order, pursuant to section 20(1)(i) of the Act, that the name of Harry Herbert Beck be removed from the Register.

In respect of that submission, section 20(3) of the Act provides: The Board is not to suspend a person's registration or remove a person's name from the register for having comitted an offence if, having regard to the nature of the offence or the circumstances under which it was committed, the Board is of the opinion that it does not render the person unfit in the public interest to be registered as a pharmacist.

Therefore the question to be answered is whether the Board is of the opinion that Mr Beck is unfit in the public interest to be registered as a pharmacist at the present time. The Board must look at the totality of the conduct complained of and at the question of Mr Beck's character.

The protection of the public is paramount when considering allegations of professional misconduct. Counsel for the respondent has argued that the overriding question for the Board to consider is Mr Beck's fitness to practise as a pharmacist. In determining fitness to practise, the Board must look at the facts of the offence in conjunction with the eviddence which has been tendered as to the pharmacist's current capacity and fitness (Johnson v Walton District Court 20 June 1996 unreported).

The facts of the offences were admitted and the Board has previously stated its findings in relation to the matters in dispute, which are that Mr Beck knew or ought to have known that the Valium supplied was being or likely to be abused (Complaint 2, Particulars 2 and 6), and that Mr Beck did knowingly provide information that was false and/or misleading (Complaint 3, Particular 4).

Apart form the matters of the convictions, the offences fall into four broad categories. 1. The sale without prescription of diazepam ampoules. 2. The dispensing of numerous forged prescriptions of schedule 8 items and the failure to check with the prescribers. 3. The so-called "technical offences", i.e., dispensing incorrectly written prescriptions, out of date prescriptions and supply of items in excess of normal therapeutic requirements. 4. Knowingly supplying false and/or misleading information.

In respect of Category 1: The pharmacist has already been fined for this offence and for the reasons previously stated, the Board finds that Mr Beck did know that the Valium unlawfully supplied to Mr Kane was the subject of abuse.

It is the responsibility of a pharmacist to ensure that the supply of such drugs is done in compliance with the requirements of the relevant legislative provisions. (Pillai v Messiter [(1989) 16 NSWLR 197]). Mr Beck has demonstrated complete disregard for the provisions of the Poisons Act 1966 and of his obligations as a pharmacist.

In respect of Category 2: The dispensing of forged prescriptions is of even greater concern to the Board. There was no evidence to suggest that Mr Beck had made any meaningful attempt to check the validity of these prescriptions.

In respect of Category 3: The offences relating to the so-called "technical breaches" are not seen by the Board as technicalities or straightforward breaches of the law, but as such gross departures from professional standards and obligations as to be reprehensible. They indicate to the Board a lack of professional care and a disregard for the requirements of the relevant Regulations affecting the practice of pharmacy. These offences took place over a period of time in excess of twelve months and reveal more about the standards applied by Mr Beck to the practice of pharmacy than the more obvious breaches of the Poisons Act.

In respect of Category 4: The finding of the Board that Mr Beck knowingly provided false and/or misleading information goes directly to the complaint that he is not of good character and to the issue of his fitness to practise.

Accordingly, the Board finds In respect of Complaint 1, that Harry Herbert Beck has been convicted in New South Wales of ten offences.

In respect of Complaint 2, that Harry Herbert Beck has been guilty of professional misconduct within the meaning of section 19D(1)(c) of the Act in that at Hornsby in the State of New South Wales the pharmacist has engaged in conduct which demonstrates a lack of adequate knowledge, judgment and care in the practice of pharmacy and has engaged in conduct relating to the practice of pharmacy that is improper and unethical.

In respect of Complaint 3, that Harry Herbert Beck is not of good character.

Having made its findings, the Board must decide what order or orders will be appropriate to be made for the protection of the public, and has taken the following into account:

It was submitted on Mr Beck's behalf that a weakness in his character has been addressed, and he has been able to learn from his behaviour, which he admits was grossly inadequate in relation to the practice of pharmacy.

It cannot be said that Mr Beck was an inexperienced or immature pharmacist. He does not rely on lack of knowledge or experience as an explanation for his actions. He relies on stresses of family life as explained by Dr Walker and by Dr Westmore, and on a flaw in his character as an explanation for his behaviour.

Looking at the totality of the evidence, it is clear that a large amount of drugs was supplied by the respondent without prescription over an extended period of time to a known addict. In addition, Mr Beck was aware that quantities of Valium were being supplied from his pharmacy to a child, Rodney Yau. He took no steps to enquire about the child's medical status and what dangers, if any, the child might be exposed to by the supply of this drug without prescription.

In relation to the supply of Valium to Mr Kane, Mr Beck took no steps to make himself aware of the interaction between methadone and Valium and to the possible dangers to Mr Kane's health and well-being. When he stopped the supply to Mr Kane and Mr Maguire he took no steps to satisfy himself about the possible consequences, to these two men, of the cessation of the supply of the drug.

It is significant that over a similar period of time, drugs were supplied on forged prescriptions, and a large number of breaches of the Regulations of the Poisons Act took place.

Counsel for the respondent has produced evidence to the effect that the procedures and systems now in place in the respondent's pharmacy are appropriate and more than satisfactory. Mr Beck told the Board he is attending continuing professional education courses and has reduced his commitments to other organisations.

The Board takes into account the matters raised on Mr Beck's behalf about his fitness to practise. It has been submitted that a significant period of time has passed since the commission of these offences and that Mr Beck has now reformed. There is no evidence that he has repeated his misconduct. The Board would be surprised if that were so. It has been further submitted that the chances of his re-offending are minimal.

The Board noted that the respondent's counsel in her submissions, asserted that Mr Beck had shown contrition, but at no time during oral evidence did Mr Beck express any remorse or contrition for his actions, neither has the Board detected any remorse or contrition on Mr Beck's part. The Board must take that into account in reaching its decision.

In considering the appropriate order in the present case, the Board also takes into account the paramount consideration of the protection of the public. The protection of the public is obtained by ensuring that those who are unfit to practise do not continue to hold themselves out as fit to practise. And by ensuring that high standards of practice are maintain (Law Society of NSW v Bannister [(1993) 4 LPDR 24)].

The Board takes the view that the object of protecting the public includes not only deterring the pharmacist in question from re-offending, but also deterring others who might be tempted to fall short of the high standards required of them. [(Law Society of NSW v Foreman (1994) 34 NSWLR 408)]. It also serves the object of assuring the community that strict and proper standards are observed.

The Board's findings in relation to Mr Beck's lack of candour, and his untruthfulness, both in relation to his dealings with the pharmaceutical advisers of the NSW Health Department, and during his evidence to the Board, raise, in the Board's opinion, grave questions as to his fitness to practise as a pharmacist.

Whilst the Board has taken into account the written testimonials from twenty two persons of good reputation tendered on Mr Beck's behalf, these testimonials refer to subjective matters raised on his behalf. The significance of these subjective aspects are greatly outweighed by the objective seriousness of the offences proven against him.

Mr Beck's behaviour displayed a reckless attitude to the practice of pharmacy and posed a danger to the public and an abrogation of his professional duties and responsibilities. His behaviour was clearly likely to bring the profession of pharmacy into disrepute.

Accordingly, pursuant to section 20(1) of the Pharmacy Act, the Board orders that the name of Harry Herbert Beck be removed from the Register of Pharmacists for New South Wales.

The effective date of this order is 9 November 1997 being one month after Harry Herbert Beck has been notified by registered post as his address as it appears on the Register.

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.