Health Care Complaints Commission v Bradley

Solicitors: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2021/00254359 Publication restriction: The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure of the health conditions placed on the respondent's registration.

Introduction

1. The respondent Ms Caroline Bradley (practitioner) has held provisional registration as a pharmacist since 6 January 2012 and general registration since 2 April 2013.
2. Since 3 April 2018 the Pharmacy Council of New South Wales (NSW) (Council) imposed conditions on her registration under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law) including that she: 1. not work as pharmacist in charge; 2. not handle, possess, supply, dispense, administer, or manufacture any substance detailed in Schedule 8 of the NSW Poisons List (drugs of addiction, derivative or compound medication) or any substance detailed in an equivalent list of any other Australian state or territory; 3. surrender her Schedule 8 drug authority.
3. By Application for Disciplinary Findings and Orders filed 6 September 2021 the Health Care Complaints Commission (Commission), pursuant to s 149C of the National Law seeks protective orders including the practitioner's suspension and the imposition of further conditions on her registration.
4. The proceedings were conducted as a combined "Stage One and Stage Two" hearing on 12 and 13 April 2022.
5. For the following reasons we have decided to suspend the practitioner's registration as a pharmacist for six months, and to impose conditions on her registration when she resumes practice.

The Commission's evidence

1. On 3 March 2022, the Commission filed a folder of material consisting of some 49 tabulated bundles of documents, numbering close to 2,000 pages. Those documents include but were not limited to correspondence between the Commission and the practitioner, an investigation report of the Pharmaceutical Regulatory Unit (PRU) of the Council dated 15 March 2018; reasons for decision and the transcript of proceedings conducted pursuant to s 150 of the National Law; reasons for decision in proceedings conducted pursuant to ss 150A and 150C of the National Law; an expert review report of Ms Alexandra Torrens and related documents; a report of Dr Anthony Samuels, Consultant Psychiatrist, and health records of the practitioner.
2. The practitioner did not require any of the Commission's witnesses for cross-examination.

The practitioner's evidence

1. On 1 April 2022, the practitioner filed a Reply to Disciplinary Application; a letter to the Commission in response to its letter sent to her under s 40 of the Health Care Complaints Act 1993 (NSW) together with an attached statement dated 27 February 2020; another statement dated 19 March 2022 prepared for the hearing; a statement of support of her current employer dated 21 March 2022; an expert report of Dr Murray Wright, Consultant Psychiatrist, and a report of Jenny Stewart, a psychologist dated 3 June 2021.
2. The practitioner was required for cross-examination by the Commission. Where relevant we will refer to that evidence below.
3. In addition, the clinical psychologist who most recently reviewed the practitioner, Ms Joanne Francis, produced her clinical notes to the Tribunal and gave oral evidence on the second day of the hearing.

Complaint

1. The Commission brought five complaints to the Tribunal. The complaints relate to the practitioner's conduct as a pharmacist in the period 2013 to 2018.

Background to all complaints

1. The background to all of the complaints is that: 1. in 2011 the practitioner attained a Master of Pharmacy from the University of Newcastle. Prior to this the practitioner completed a degree in medicinal chemistry and worked for several periods as a pharmaceutical sales representative to pharmacists and general practitioners; 2. in 2012 the practitioner commenced work as an intern pharmacist at Chemist Works Glendale (CWG) and she worked there as a pharmacist until October 2016. She then performed locum pharmacy work at Cessnock Plaza Pharmacy. From about March 2017 to December 2017 the practitioner worked at Friendly Pharmacy Lake Munmorah (FPLM); 3. from 9 January 2018 to about April 2018 the practitioner worked at Star Pharmacy Cardiff (SPC).

Complaint One

1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
2. The particulars to Complaint One are that: 1. during the period 2013 to 2016 the practitioner misappropriated Schedule 8 medications from CWG including Oxycontin, MS Contin, Oxynorm, Oxycontin Sandos and Endone; 2. during 2017 on the dates and in the manner set out in Annexure A to these reasons at FPLM the practitioner misappropriated medications: 1. at the time they were delivered to FPLM and fraudulently adjusted the invoice to hide her actions; 2. from the drug inventory and returned/unwanted stock, and adjusted the stock on hand in the drug register to hide her actions. 1. by her conduct in particulars (1) and (2) the practitioner acted contrary to her obligations under: 1. cll 101, 102(1), 112, and/or 177 of the Poisons and Therapeutic Goods Regulation 2008 (PTGR); and 2. section 8.1 of the Pharmacy Board of Australia's Code of Conduct (Code of Conduct).

Complaint Two

1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (l) of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
2. The Particulars to Complaint Two are: 1. on 22 October 2016 the practitioner inappropriately requested an employed pharmacist at CWG to supply the schedule 8 medication Endone from the pharmacy for her husband, without a prescription, in circumstances where: 1. the pharmacist was her colleague at CWG; 2. in making the request the practitioner knew or ought to have known that she was requesting the employed pharmacist to act in a manner which may have constituted an offence under cll 85, 102, 112, 113 and/or 177 of the PTGR; 3. the practitioner misled the pharmacist by falsely stating that the Endone was for her husband, knowing it was for the practitioner's own use; 4. the practitioner acted contrary to her obligations under ss 4.2(c) and 8.1 of the Code of Conduct. 1. from about late 2013/early 2014 onwards at CWG the practitioner inappropriately placed returned or out of date schedule 8 medication straight into the safe or on top of or near the safe without making necessary entries in the drug register, in circumstances where the practitioner: 1. knew this conduct was contrary to the protocol at CWG; 2. was aware she had to follow the protocol at CWG in relation to recording returned or out of date medications. 1. from 14 to 22 June 2017 the practitioner made improper entries in the drug register for various drugs as set out in Annexure B to the Complaint in that she attributed the adjustments to "pharmacy sold" or "stocktake new owners" at FPLM when she knew or ought to have known that was not a correct reason for the adjustment; 2. on 18 January 2018 at SPC the practitioner improperly entered 500 dexamphetamine 5 mg tablets into the Drug Register received from a wholesaler in circumstances where: 1. 600 tablets (6 boxes of 100 tablets) were supplied and invoiced on that date; 2. the practitioner signed off on the invoice on 18 January 2018 that 600 tablets had been supplied. 1. on 19 January 2018 at SPC the practitioner improperly entered 112 Oxycontin 40 mg tablets into the Drug Register from a wholesaler in circumstances where: 1. 168 tablets were supplied and invoiced on 18 January 2018; 2. the practitioner signed off on the invoice on 19 January 2018 that 168 tablets had been supplied. 1. by her conduct in particulars (3), (4) and (5) the practitioner acted contrary to her obligations under: 1. cll 112 and/or 177 of the PTGR; and 2. section 8.1. the Code of Conduct.

Complaint Three

1. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
2. The particulars of Complaint Three are that: 1. the practitioner provided false and/or misleading information to the PRU on 1 March 2018 when she: 1. stated that the reason she obtained Endone from CWG on 22 October 2016 purportedly for her husband was that she had left her husband's on an airplane and he required the medication; 2. stated that when she presented a prescription to CWG for Endone on 25 October 2016 in her name, the doctor who wrote the prescription was aware it was intended for her husband; 3. stated that she did not know who was making negative stock adjustments at FPLM and that it may have been someone trying to steal the medication for illegal sale; 4. stated that she could not provide an explanation for the large number of stock adjustments made to the drug register at FPLM from July 2017 to October 2017; 5. denied that she stole scheduled medications from FPLM and CWG; 6. denied that she made false entries in the drug register at FPLM and CWG; 1. the practitioner provided false and/or misleading information to the PRU on 10 April 2018 by attributing the unaccountable loss of drugs of addiction at FPLM to the accessibility of the drug safe, when she knew she had stolen some of the drugs unaccounted for; 2. the practitioner provided false and/or misleading information to the delegates of the Council on 27 March 2018, 10 July 2018 and/or 24 January 2019 when she: 1. stated that her consumption of oxycodone was sporadic in nature; 2. stated that the reason she obtained Endone from CWG on 22 October 2016 purportedly for her husband was that she had left her husband's medication in her bag on a plane and he required the medication; 3. stated that when she presented a prescription to CWG for Endone on 25 October 2016 in her name, the doctor who wrote that prescription had erroneously put her name on the prescription; 4. denied that she stole scheduled medications from pharmacies she worked at; 5. stated that any errors in the drug registers at all the pharmacies she worked at were errors in entering stock from suppliers; 1. by her conduct in particulars (1) to (3) the practitioner acted contrary to her obligations under section 8.10 of the Code of Conduct.

Complaint Four

1. Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that she: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration
2. The particulars of Complaint Four are: 1. the particulars of Complaint One which are repeated and relied on individually and cumulatively; 2. the particulars of Complaint Two which are repeated and relied on individually and cumulatively; 3. the particulars of Complaint Three which are repeated and relied on individually and cumulatively; 4. two or more of the particulars of Complaint One, Complaint Two and Complaint Three which are repeated and relied on cumulatively.

Complaint Five

1. Complaint Five is that the practitioner suffers from an impairment within the meaning of s 5 of the National Law including:

• opioid use disorder (in remission);
• a mood and anxiety disorder; or
• a general anxiety disorder and major depressive disorder in partial remission.

Relevant Law and Codes

1. It is appropriate to set out the relevant provisions of the National Law, the PTGR and the Code of Conduct.

National Law

1. Section 3 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; (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.
2. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 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.
3. 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.
4. Section 139B of the National Law (which is also an additional provision for NSW), which 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.
5. Section 139E of the National Law (again, 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.
6. Finally, in s 3, impairment is defined 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 …

PTGR

1. Clause 85 of the PTGR provides: 85 Pharmacists may supply drugs of addiction on prescription (1) A pharmacist may supply a drug of addiction on prescription if the prescription is in the form required by Division 3. (2) This clause does not prevent a pharmacist from supplying a drug of addiction on prescription merely because - (a) the prescription fails to specify the maximum number of times the drug may be supplied, or (b) the prescription fails to specify the intervals at which the drug may be supplied. (3) A pharmacist must not supply a drug of addiction on a prescription referred to in subclause (2) if it appears to the pharmacist that the drug has previously been supplied on the prescription, regardless of how many times the prescription purports to authorise the supply of the drug. (4) The Secretary may, by order in writing, exempt any person or drug, or any class of persons or drugs, from any or all of the requirements of this clause. (5) Such an exemption may be given unconditionally or subject to conditions. Maximum penalty - 20 penalty units.
2. Clause 101 of the PTGR provides: 101 Possession and supply of drugs of addiction (1) The following persons are authorised to have possession of, and to supply, drugs of addiction - (a) an authorised practitioner, (b) the chief pharmacist of, and any pharmacist employed in dispensing medicines at, any public hospital or other public institution, (c) the director of nursing of a hospital in which a pharmacist is not employed, (d) the nurse or midwife in charge of a ward in a public hospital, (e) a nurse or midwife who is approved for the time being by the Secretary for the purposes of this clause, or who belongs to a class of nurses or a class of midwives so approved, (f) any other nurse or midwife, but for the purpose only of administering doses of such drugs to individual patients in a hospital or individual inmates in a managed correctional centre, (g) a person - (i) who is employed in the Ambulance Service of NSW as an ambulance officer or as an air ambulance flight nurse, and (ii) who is approved for the time being by the Secretary for the purposes of this clause, (h) a pharmacist at a managed correctional centre, but for the purpose only of supplying the drugs for use by individual inmates in the managed correctional centre. (2) The following persons are authorised to have possession of (but not to supply) drugs of addiction - (a) a person in charge of a laboratory used for the purpose of analysis, research or instruction, who is, or who belongs to a class of persons who are, authorised for the time being by the Secretary for the purposes of this clause, (b) an analyst, (c) a person acting under the direct personal supervision of a person referred to in paragraph (a) or (b). (3) This clause authorises a person referred to in subclause (1) or (2) to have possession of, or to supply, drugs of addiction for the purpose only of the lawful practice of the person's profession or occupation. (4) For the purposes of the Act, section 4(1), the definition of Supply by wholesale, a management company for a managed correctional centre is authorised to be supplied with wholesale quantities of drugs of addiction. (4A) A management company for a managed correctional centre must appoint, by written instrument, a pharmacist employed at the managed correctional centre to receive the drugs of addiction authorised to be supplied to the management company. (4B) If there is no pharmacist employed at the managed correctional centre, an authorised practitioner, other than a veterinary practitioner, or nurse in charge may be appointed. (5) This clause does not authorise a nurse practitioner, midwife practitioner, dentist or veterinary practitioner to have possession of, or to supply, a type A drug of addiction (other than methylphenidate in solid dosage form, in the case of a veterinary practitioner). (Emphasis as in original)
3. Clause 102(1) of the PTGR provides: 102 Possession and manufacture of drugs of addiction by retail pharmacists (1) A retail pharmacist is authorised - (a) to have possession of drugs of addiction, and (b) to manufacture drugs of addiction and any preparation, admixture or extract of a drug of addiction, but only if he or she does so at the premises of, and in the course of carrying on a pharmacy business. … Maximum penalty - 20 penalty units.
4. Clause 112 of the PTGR provides: 112 Entries in drug registers (1) On the day on which a person manufactures, receives, supplies, administers or uses a drug of addiction at any place, the person must enter in the drug register for that place such of the following details as are relevant to the transaction - (a) the quantity of the drug manufactured, received, supplied, administered or used, (b) the name and address of the person to, from, or by, whom the drug was manufactured, received, supplied, administered or used, (c) in the case of a drug that has been administered to an animal or supplied for the treatment of an animal, the species of animal and the name and address of the animal's owner, (d) in the case of a drug that is supplied or administered on prescription - (i) the prescription reference number, and (ii) the name of the authorised practitioner by whom the prescription was issued, (e) in the case of a drug that has been administered to a patient, the name of the authorised practitioner (other than a veterinary practitioner) by whom, or under whose direct personal supervision, the drug was administered, (f) in the case of a drug that has been administered to an animal, the name of the veterinary practitioner by whom, or under whose direct personal supervision, the drug was administered, (g) in the case of a drug that has been administered by a person authorised to do so by an authority under Part 8, details of the circumstances requiring administration of the drug, (h) in the case of a drug that has been used by a person who is in charge of a laboratory, or is an analyst, the purpose for which the drug was used, (i) the quantity of drugs of addiction of that kind held at that place after the transaction takes place, (j) any other details approved by the Secretary. (2) Each entry in a drug register must be dated and signed by the person by whom it is made. (3) The Secretary may, by order in writing, exempt any person or drug of addiction, or any class of persons or drugs of addiction, from any or all of the requirements of this clause. (4) Such an exemption may be given unconditionally or subject to conditions. Maximum penalty - 20 penalty units or imprisonment for 6 months, or both.
5. Clause 177 of the PTGR provides: 177 False or misleading entries in records and registers (1) A person who is required by this Regulation to keep any record or register must not make any entry in the record or register that the person knows to be false or misleading in a material particular. (2) A person must not make any alterations, obliterations or cancellations in a record or register required by this Regulation, but may correct any mistake in any entry by making a marginal note or footnote and by initialling and dating it. Maximum penalty - 20 penalty units or imprisonment for 6 months, or both. Note - Section 307A of the Crimes Act 1900 creates the offence of providing false or misleading information in certain circumstances. The offence carries a maximum penalty imprisonment for 2 years, or 200 penalty units, or both.

Code of Conduct

1. Section 4.2(c) of the Code of Conduct provides: 4 Working with other practitioners … 4.2 Respect for colleagues and other practitioners Good care is enhanced when there is mutual respect and clear communication between all health professionals involved in the care of the patient or client. Good practice involves: a) communicating clearly, effectively, respectfully and promptly with colleagues and other practitioners caring for the patient or client b) acknowledging and respecting the contribution of all practitioners involved in the care of the patient or client, and c) behaving professionally and courteously to colleagues and other practitioners at all times, including when using social media.
2. Section 8.1 of the Code of Conduct provides: 8 Professional behaviour 8.1 Introduction In professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct. The guidance contained in this section emphasises the core qualities and characteristics of good practitioners outlined in Section 1.2 Professional values and qualities.
3. Section 8.10 of the Code of Conduct relevantly provides: 8.10 Investigations Practitioners have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague. In meeting these responsibilities, it is advisable to seek legal advice or advice from a professional indemnity insurer. Good practice involves: a) cooperating with any legitimate inquiry into the treatment of a patient or client and with any complaints procedure that applies to a practitioner's work b) disclosing to anyone entitled to ask for it information relevant to an investigation into the conduct, performance or health of a practitioner or colleague …

Consideration of Complaint One

1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper and/or unethical conduct relating to the practice or purported practice of pharmacy.
2. Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54].
3. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in various cases including Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [67]-[69]; Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [21] and following, and further considered in Health Care Complaints Commission v Konigson [2021] NSWCATOD 186.
4. In Konigson the Tribunal stated at [93]-[95]: 90. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated: 21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30]. 22. The Macquarie Dictionary offers several definitions of both words which include: Improper 2. not in accordance with propriety of behaviour, manners, etc: improper conduct. Unethical 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. 23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. 24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53]. 25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct. 26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances. 94. It may be that the phrase "improper or unethical" is a hendiadys in the sense that it is a phrase which invokes the application of values, the content of which derives no elucidation from reference to synonyms, nor from a supposed differentiation from other similar words: see Cooper v The Owners - Strata Plan No 58068 [2020] NSWCA 250 per Basten JA at [24] to [27], in particular at [25]. His Honour was considering the meaning of the expression "harsh, unconscionable or oppressive" which appears in s 139(1) of the Strata Schemes Management Act 2015 (NSW). His Honour stated: Thirdly, the phrase is better understood as a triune, three words conveying a single criterion. It is towards the other end of a scale from the hendiadys "just and equitable". It invokes the application of values, the content of which derives no elucidation from reference to synonyms, nor from a supposed differentiation from other similar words such as "unjust". 95. It is not necessary to decide this matter, as are satisfied that the admitted conduct of Ms Konigson was clearly improper conduct. We are additionally satisfied that the conduct was unethical, in the sense that it was a clear breach of Ms Konigson's ethical obligations to care for her patients.
5. The conduct the subject of Complaint One appears in the particulars set out in above and has been admitted by the practitioner. In summary that conduct includes:

• during the period 2013 to 2016 the practitioner misappropriating an unknown number (but potentially thousands, "there was an awful lot") of tablets of Schedule 8 medications from CWG including Oxycontin, MS Contin, Oxynorm, Oxycontin Sandos and Endone;
• during 2017 on the dates and in the manner set out in Annexure A to these reasons at FPLM the practitioner misappropriating medications on no less than 22 occasions, totalling approximately 2,169 tablets:
• fraudulently adjusting invoices to hide her actions;
• adjusting the stock on hand in the drug register to hide her actions.

1. The practitioner has admitted this conduct. Independent of those admissions, based on the evidence before us we are satisfied that the conduct occurred.
2. We are satisfied that by that conduct the practitioner acted contrary to her obligations under:

• cll 101, 102(1), 112, and 177 of the PTGR; and
• section 8.1 of the Code of Conduct.

1. We are satisfied that the admitted conduct was both improper and unethical and that the practitioner is therefore guilty of unsatisfactory professional misconduct as defined in s 139B(1)(l) of the National Law.

Consideration of Complaint Two

1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (l) of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
2. The conduct the subject of Complaint Two appears in the particulars set out in above and has been admitted by the practitioner. In summary that conduct includes:

• inappropriately requesting an employed pharmacist at CWG to supply Endone for her husband, without a prescription, in circumstances where, inter alia, it was for her husband;
• inappropriately placing returned or out of date Schedule 8 medication straight into the safe or on top of or near the safe at CWG without making necessary entries in the drug register;
• making improper entries in the drug register for various drugs as set out in Annexure B to the Complaint in that she attributed the adjustments to "pharmacy sold" or "stocktake new owners" at FPLM when she knew or ought to have known that was not a correct reason for the adjustment;
• improperly entering 500 dexamphetamine 5 mg tablets into the Drug Register at SPC as being received from a wholesaler in circumstances where 600 tablets were supplied and invoiced and signed off for by the the practitioner
• improperly entering 112 Oxycontin 40 mg tablets into the Drug Register at SPC as being received from a wholesaler in circumstances where 168 tablets were supplied and invoiced and signed off for by the the practitioner

1. The practitioner has admitted this conduct. Independent of those admissions, based on the evidence before us we are satisfied that the conduct occurred.
2. Again, we are satisfied that by that conduct the practitioner acted contrary to her obligations under:

• cll 101, 102(1), 112, and 177 of the PTGR; and
• section 8.1 of the Code of Conduct.

Conduct significantly below reasonable standard: s 139B(1)(a)

1. We are satisfied that the admitted conduct was both improper and unethical and that the practitioner is therefore guilty of unsatisfactory professional misconduct as defined in s 139B(1)(a) of the National Law. In this respect, we note the opinions expressed by Ms Alexandra Torrens in her expert review report dated 16 January 2020. In summary, Ms Torrens found that the conduct of the practitioner was significantly below the standard required.

Other improper or unethical conduct: s 139B(1)(l)

1. We have no hesitation in finding, applying the principles set out above, that the admitted conduct the subject of Complaint Two was improper or unethical conduct.

Consideration of Complaint Three

1. Complaint Three is another complaint of improper or unethical conduct.
2. The conduct the subject of Complaint Three appears in the particulars set out above and has been admitted by the practitioner. In summary that conduct includes:

• providing false and/or misleading information to the PRU on 1 March 2018 in six different instances;
• providing false and/or misleading information to the PRU on 10 April 2018 by attributing the unaccountable loss of drugs of addiction at FPLM to the accessibility of the drug safe, when she knew she had stolen some of the drugs unaccounted for;
• providing false and/or misleading information to the delegates of the Council on 27 March 2018, 10 July 2018 and 24 January 2019 in five separate instances.

1. The practitioner has admitted this conduct. Independent of those admissions, we are satisfied that the conduct occurred.
2. We are satisfied that by that conduct the practitioner acted contrary to her obligations under section 8.10 of the Code of Conduct.
3. We are satisfied that the admitted conduct was both improper and unethical and that the practitioner is therefore guilty of unsatisfactory professional misconduct as defined in s 139B(1)(l) of the National Law.

Consideration of Complaint Four

1. Complaint Four is that Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law.
2. The particulars of Complaint Four are 1. the particulars of Complaint One which are repeated and relied on individually and cumulatively; 2. the particulars of Complaint Two which are repeated and relied on individually and cumulatively; 3. the particulars of Complaint Three which are repeated and relied on individually and cumulatively; 4. two or more of the particulars of Complaint One, Complaint Two and Complaint Three which are repeated and relied on cumulatively.
3. The definition of professional misconduct in s 139E is set out above. As the Tribunal noted in Health Care Complaints Commission v Kaye [2022] NSWCATOD 24 at [129]: 1. there is no category of unsatisfactory professional conduct which is not capable of forming professional misconduct: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21]; 2. the traditional common law definition of professional misconduct is that ''which would be reasonable regarded as disgraceful or dishonourable by professional brethren of good repute and competency": Allinson v General Council of Medical Education and Registration [1984] 1 QB 750; 3. professional misconduct may be made out by a deliberate departure from professional standards or "such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration": Pillai v Messiter [No 2] (1989)16 NSWLR 197; 4. the gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
4. The Commission submits, and we accept, that in relation to Complaint One: 1. the Respondent stole large quantities of Schedule 8 drugs of addiction from two pharmacies where she was employed, over approximately four years, and falsified invoices and the pharmacies' drug registers to try to conceal that conduct; 2. that this occurred in a context in which the PTGR contains stringent limitations on the possession and supply of Schedule 8 drugs and detailed record-keeping requirements; 3. there are several cases in which the Tribunal has found that a pharmacist misappropriating Schedule 8 drugs, alone or together with falsifying records of those drugs, is sufficient to constitute professional misconduct: Health Care Complaints Commission v ZXY [2021] NSWCATOD 136 at [67]; Health Care Complaints Commission v Pickett [2019] NSWCATOD 53 at [71]-[72]; Health Care Complaints Commission v Farhat [2018] NSWCATOD 193 at [20]. 4. In Health Care Complaints Commission v Orr [2015] NSWCATOD 124 at [121]. the Tribunal said in relation to the practitioner involved in that case: The misappropriation of substantial quantities of Sch 8 drugs from his place of employment, which [the practitioner] had access to by virtue of his registration as a pharmacist, must be characterised as professional misconduct of the most serious kind, as is his falsification of Sch 8 records to cover up this theft.
5. We find that each of the admitted particulars of unsatisfactory professional the subject of Complaint One is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In our view, each individual particular represents a very serious departure from the standards expected of a registered pharmacist of equivalent training and experience.
6. The Commission submits, and we accept, that in relation to Complaint Two: 1. this complaint relates to other shortcomings in the Respondent's professional conduct concerning Schedule 8 drugs. Particular 1 relates to the Respondent's request for a colleague to supply a Schedule 8 medication to her without a prescription. Any such supply was prohibited by cl 85 of the PTGR, as was the practitioner's subsequent possession of the medication (PTGR, cl 102) The remaining particulars relate to the practitioner's failure to make accurate entries in the Schedule 8 drug register, which was also contrary to the strict record-keeping requirements in the PTGR (see cll 112, 113, 177); 2. the extent of the requirements in the PTGR concerning Schedule 8 drugs indicates a regulatory intention that the possession and supply of those drugs is to be tightly controlled. The integrity of that system of control depends on the honest and diligent participation of pharmacists, who occupy a privileged position in terms of their access to drugs of addiction; 3. in Pickett at [61] the Tribunal stated: A pharmacist occupies a position of trust in our community by virtue of having access to drugs of addiction. They are responsible for the secure storage and safe administration to patients of such medication. 1. similarly, in Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 the Tribunal said at [165]: The effectiveness of the statutory scheme governing the retail supply of prescribed substances and drugs of addiction requires pharmacists to act with integrity and to scrupulously adhere to the statutory requirements governing the supply of those drugs. 1. the practitioner was not only lacking in diligence in her dealings with Schedule 8 drugs, she deliberately abused her position as a pharmacist to facilitate her misappropriation of those drugs for her own use.
7. We find that each of the particulars of Complaint Two is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In our view, each individual particular represents a very serious departure from the standards expected of a registered pharmacist of equivalent training and experience.
8. In relation to Complaint Three, the Commission submits, and we accept, that: 1. the practitioner knowingly misled two regulatory authorities about her misconduct over an extended period of time; 2. when given several opportunities to confess to her misconduct she failed to do so; 3. Not only did she provide false or misleading information to these authorities in response to regulatory processes initiated by them, but she actively sought to have the conditions imposed on her registration by the Pharmacy Council removed on the basis of a lie; 4. the practitioner sought actively to convince the Pharmacy Council of her insight and remorse at the same time knowing that she was deliberately misleading the Council about her misconduct. 5. the Tribunal has observed that providing false or misleading information to a professional council "is of the utmost seriousness" and "falls far short of expected professional and ethical standards": Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103 at [128].
9. We find that each of particulars (1) and (3) of Complaint Three is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. In our view, these particulars represents a very serious departure from the standards expected of a registered pharmacist of equivalent training and experience. In addition, we find that when all the particulars of Complaint Three are considered cumulatively, this too amounts to professional misconduct.
10. For these reasons, we find Complaint Four established. It is not necessary to consider the submission that two or more of the particulars of Complaint One, Complaint Two and Complaint Three which are repeated and relied on cumulatively amount to professional misconduct.

Consideration of Complaint Five

1. Compliant Five is the complaint of impairment, namely opioid use disorder (in remission), a mood and anxiety disorder; or a general anxiety disorder and major depressive disorder in partial remission.
2. The diagnosis of Opioid Use Disorder (in remission) and a Mood and Anxiety Disorder was made by the Council-appointed psychiatrist Dr Samuels, following a diagnosis of Opioid Use Disorder by the practitioner's psychiatrist Dr Wright.

Dr Samuels

1. In his report of 11 February 2021, Dr Samuels stated: 58. at this point I would regard Mrs Bradley as meeting diagnostic criteria for clinical depression. She does have low grade depression with anxiety and she has an opiate use disorder which appears to be in remission. In terms of the National Law, she does have an impairment in the form of a Mood and Anxiety Disorder as well as an Opiate Use Disorder. 59. Her impairments do have the potential to impact upon her professional functioning. At this point she is able to acknowledge that she probably was not functioning at an optimal level and she was, of course, misappropriating medications from the workplace. 60. Mrs Bradley seems to be functioning well, she is engaged with a psychologist and a GP, but I do have concerns that she is not under the care of a Drug & Alcohol specialist and that she is not being reviewed by a psychiatrist. Recommendations 61. Mrs Bradley should remain under the auspices of the Impairment Program. I would see her current orders and conditions as being appropriate, however a number of health conditions should be added and I would suggest: (i) she should continue to see her psychologist at a mutually agreed frequency; (ii) she should continue to see her GP at a mutually agreed frequency; (ii) she should continue to see her pain specialist at a mutually agreed frequency; (iv) she should be seeing a Drug & Alcohol specialist at a mutually agreed frequency; (v) she should be under the care of a psychiatrist in view of her mood symptoms and to monitor her antidepressant medication; (vi) she should accept the advice and direction from all her treating practitioners and they should be in a position to notify the Council if there are any concerns; (vii) she should be subjected to some form of Drug & Alcohol monitoring. At this point she does seem to be in remission and hair testing on a 3-monthly basis may be sufficient or the Council may wish to supplement this with random urine testing as well; and (viii) she should be reviewed by the Council appointed psychiatrist in 6 month's time.

Dr Wright

1. Dr Samuel's report followed the report of Dr Wright of 27 April 2020 who stated that the practitioner met the criteria for diagnosis of an Opioid Use Disorder, in sustained remission. Dr Wright considered that it was also possible that the practitioner also suffered from an affective disorder (such as major depression or an adjustment disorder), either of which may be associated with the opioid use disorder.
2. Dr Wright stated that treatment for the practitioner's chronic pain from a specialist was a necessary part of her future treatment, and that she consult a psychiatrist experience in the treatment of addictive disorders in order to assist her to remain in remission, and also to assess whether any additional treatment was required to support her remission or address her mental health issues.
3. As to "impairment" as defined in the National Law, Dr Wright's opinion was that the practitioner met the definition: "her opiate use disorder is in remission, but she is still vulnerable to chronic pain. Either of these conditions can be considered a potentially current condition for which [she] might benefit from ongoing treatment and monitoring".
4. When asked to consider what conditions would be appropriate to place on the practitioner's registration, Dr Wright suggested:

• treatment with a physician experienced in chronic pain management;
• treatment with a psychiatrist experienced in the treatment of addictions;
• monitoring for drug misuse;
• working under the supervision of another pharmacist.

1. In addition to the opinions of the two psychiatrists, there was also evidence of psychologists before the Tribunal. This is summarised below.

Ms Stewart

1. First, the practitioner saw Ms Jenny Stewart. The practitioner had been referred by her general practitioner Dr Faisal Khan for opinion and management of depression under a mental health plan.
2. In a letter to Dr Khan after her first assessment of the practitioner on 16 March 2020, Ms Stewart noted that:

• the practitioner completed the Depression, Anxiety and Stress Scale-short Form (DASS21), a self report measure used to screen symptoms of depression, anxiety and stress. This indicated "extremely severe" depression, "severe" anxiety and "moderate" stress;
• the practitioner was also assessed using the Screening Tool for Assessing Risk of Suicide (STARS), and was found to be in the moderate range for risk of harm.

1. Follow up consultations took place on 30 March, 8 April, 15 April, 29 April 2020. In a progress report to Dr Khan dated 30 April 2020, the practitioner was re-assessed using the DASS21 and scored "extremely severe" for depression, "severe" for anxiety and "severe" for stress. The STARS assessment returned a "mild range" for risk of harm.
2. The practitioner then saw Ms Stewart on 8 May, 15 May, 28 May and 5 June 2020. In a progress report to Dr Khan dated 7 July 2020, Ms Stewart states that the practitioner was re-assessed using the DASS21 and scored "severe" for depression, "severe" for anxiety and "mild" for stress. The STARS assessment returned a "mild range" for risk of harm. The report noted the sessions had focused on Cognitive Behaviour Therapy to combat unhelpful thinking styles and behaviours, and Interpersonal Therapy strategies to address "interpersonal issues. This has included emotion regulation, communication skills training [,] thought identification and restructuring". Ms Stewart recommended that the practitioner receive further sessions under the Chronic Disease Management Scheme.
3. Further sessions followed on 8 July and 14 July 2020. In a progress report to Dr Khan dated 23 August 2020, Ms Stewart states that a STARS assessment returned a "mild range" for risk of harm. Ms Stewart noted that since her last appointment on 14 July 2020, the practitioner had been contacted to rebook an appointment at various times but contact was unsuccessful. Therefore, Ms Stewart referred the practitioner back to Dr Khan's care, and asked that he manage her mental health and support her where necessary, and recommended that she continue to engage in psychological treatment.
4. There were further sessions with Ms Stewart on 23 February, 16 March 2021, 15 June and 6 July 2021. In a progress report to Dr Khan dated 21 July 2021, Ms Stewart states that the practitioner's STARS assessment returned a "mild range" for risk of harm. Ms Stewart noted that since her last appointment on 6 July 2021, the practitioner had been contacted to rebook an appointment at various times but contact was unsuccessful. Therefore, Ms Stewart referred the practitioner back to Dr Khan's care, and asked that he manage her mental health and support her where necessary, and recommended that the practitioner continue to engage in psychological treatment.
5. On 3 June 2021 Ms Stewart prepared a confidential report for the practitioner's then solicitors. In that report, Ms Stewart relevantly states: 5. What is your working diagnosis? Generalised Anxiety Disorder … and Major Depressive Disorder … in partial remission. … 9. Has Ms Bradley discussed with you the conduct and health issues the subject of the HCCC investigation? If so, do you consider she has shown insight into why she engaged in the unprofessional conduct as a pharmacist? Yes. Ms Bradley has discussed these issues with me. She holds a great deal of insight into why she engaged in unprofessional conduct while working as a pharmacist. Ms Bradley reports feeling well equipped to manage her symptomology and now has the protective factors needed to ensure that she does not re-engage in any previous unethical behaviour. 10. Have you discussed with Ms Bradley the ethical issues arising from her unprofessional conduct? Yes. Ms Bradley is aware of the ethical issues arising from her unprofessional conduct. She is embarrassed and regretful in regard to her previous decision to breach the code of ethics. Ms Bradley has since attempted to change her behaviour and is willing to engage in any measure to ensure that she can continue working as a Pharmacist.

Ms Frances

1. Secondly, the practitioner saw Ms Joanne Francis, a clinical psychologist, on six occasions in the period 6 October 2021 to 5 January 2022. No report had been requested, but Ms Francis produced her clinical notes to the Tribunal and attended the second day of the hearing to give evidence.
2. Due to COVID-19, Ms Francis' sessions with the practitioner were conducted via Skype or equivalent technology. While Ms Francis is not a drug and alcohol specialist, her specialisation being mental health, she deals with many addicted patients. Her initial diagnosis of the practitioner was clinical depression, but that by 5 January 2021, she no longer held that opinion, as in her view the practitioner was perceiving things differently, exercising more, and was no longer disabled by a sense of hopelessness.
3. Ms Francis considered she was not able to express an opinion on whether the practitioner suffered impairment as defined under the National Law. She agreed the ability to diagnose suffered without face to face sessions with the patient, and it was possible she could form a different view if she saw the patient in person. That said, Ms Francis said that she observed no signs of impairment of the practitioner, such as being under the influence of drugs or behaving inappropriately during their sessions.
4. Ms Francis was not aware of any psychiatric reports or psychiatric diagnoses, but said that the practitioner did tell her about her diagnosis of opioid abuse disorder.
5. Ms Francis also said that it would be useful for the practitioner to continue treatment for her mental health, "I think there is psychological work to be done".

Consideration

1. The Commission submits that, as to the practitioner's Opioid Use Disorder and Mood and Anxiety Disorder: 1. there is no updated psychiatric evidence since February 2021; 2. Dr Samuels recommended that the practitioner take a number of steps to seek to manage the impairment that he had then identified, including remaining under the care of a psychiatrist, regularly attending on a psychologist and obtaining specialist drug and alcohol treatment. The Respondent does not appear to have done any of these things. 3. similarly, nine months earlier, Dr Wright suggested that the practitioner might benefit from ongoing treatment and monitoring in the context of what he described as her continued vulnerability to chronic pain. Again, the practitioner does not appear to have taken up that suggestion. 4. In circumstances where the practitioner has not provided updated psychiatric evidence to the Tribunal and has not taken the steps recommended by the psychiatrists who have treated her to address the contributors to her impairment, the Tribunal would be satisfied that the practitioner remains under an impairment as defined in s 5.
2. As to the practitioner's Generalised Anxiety Disorder and Major Depressive Disorder in partial remission, the Commission submits: 1. that the practitioner does not appear to have attended on Ms Stewart since shortly after Ms Stewart prepared her report (6 July 2021). At that time, the practitioner continued to report suicidal ideation and scored within the mild range for risk of harm in a screening assessment. In the previous session (15 June 2021), although the practitioner reported 'doing better', she still reported symptoms of her affective disorders including feeling 'slightly numb when in social settings'. 2. in this context, it would be a matter of concern for the Tribunal that the practitioner failed to attend subsequent appointments with Ms Stewart despite being followed up on several occasions. 3. in Ms Stewart's letter to the practitioner general practitioner after these missed appointments, she asked him to continue monitoring the practitioner's risk of self-harm and managing the practitioner's mental health.
3. In those circumstances, the Commission submits that the Tribunal would also, or alternatively, find that the practitioner is under an impairment by reason of Ms Stewart's diagnoses.
4. For her part, the practitioner did not consider she was currently impaired. She told us that she had undertaken some of the matters recommended by Dr Samuels (such as working under supervision, seeing her general practitioner and a psychologist).
5. True it is that the practitioner works under supervision, but her attendance with psychologists has been irregular (exacerbated we accept by COVID), as has her attendance with her general practitioner (which appears to be limited to treatment for her ankle pain). Be that as it may, the practitioner has not seen any drug and alcohol or addiction specialist and has not continued under the care of a psychiatrist (which we accept may have been exacerbated by financial constraints. However, significantly in our view, as her own general practitioner was not aware of the diagnoses of either Dr Samuels or Dr Wright, and it seems that Ms Stewart was also unaware of those diagnoses (and here we note that Dr Khan's referrals actually stated that there no alcohol or drug use disorder) we consider that the practitioner remains under the impairments of opioid use disorder (in remission), a mood and anxiety disorder and a general anxiety disorder and major depressive disorder in partial remission.

Commission's submissions

1. In summary, the Commission seeks orders: 1. under s 149C(1)(b) of National Law suspending the practitioner's registration as a pharmacist for a period of three months; 2. under s 149A(1)(b) of the National Law imposing practice conditions on the practitioner's registration as a pharmacist; 3. under s 149A(1)(b) of the National Law imposing health conditions on the practitioner's registration as a pharmacist; and 4. under cl 13 of Sch 5D of the National Law that the practitioner pay the Commission's costs as agreed or assessed.
2. The Commission submits, and we accept, that the practitioner's misconduct is very serious. It extended for much of the practitioner's early career. It is the kind and extent of misconduct that would often warrant cancelling a practitioner's registration, or at least a lengthy period of suspension. For reasons of general deterrence and to maintain public confidence in the pharmacy profession, it is necessary for the Tribunal to signal its strong disapproval of that conduct.
3. We agree. The conduct of the practitioner was objectively very serious: she stole thousands of tablets of Schedule 8 medication from her employer, she falsified invoices and drug registers and then lied about this conduct to the PRU and the Council; this conduct continuing over a period of four years. Furthermore, she deliberately abused her position as a pharmacist to facilitate her misappropriation of those drugs for her own use.
4. However, the Commission submits that there are mitigating factors in this case which count against cancellation of the practitioner's registration or a lengthy period of suspension being imposed. In summary, these factors are as follows.
5. First, the practitioner has reflected on her misconduct and expressed remorse for it. That reflection and remorse are demonstrated by the practitioner's confession of her misconduct to the Commission in February 2020. The practitioner was not forced into making this confession: she had successfully misled two other regulatory authorities for two years, and the Commission's intended investigative findings did not include a finding that the practitioner misappropriated drugs. It is likely that the extent of the practitioner's misconduct would not have come to light if she had not confessed. The practitioner's choice to confess to her misconduct in those circumstances indicates a genuine reflection on her behaviour and a desire to clear her conscience in relation to it. Her written confession is full and contains a transparent account of her behaviour and what led her to engage in it. Those matters are to her credit. The practitioner's confession also indicates that she has insight into her misconduct. It includes reflections on the impact of her conduct on members of the public and her colleagues.
6. Secondly, the practitioner has continued to practise for some years since the admitted misconduct and appears to have done so without issue. There have been no reports of misbehaviour since the misconduct in the Complaint. Her employer reports that she is a valued member of his team. The practitioner's evidence suggests that she appreciates how fortunate she is to have the opportunity to continue working as a pharmacist despite her misconduct.
7. Thirdly, the medical evidence indicates that the practitioner was addicted to pain medication and had an Opioid Use Disorder at the time of her misconduct. That disorder is said by two psychiatrists to be in remission and the practitioner says she has not used oxycontin since August 2018. The practitioner has also obtained some relevant medical treatment for her substance misuse and affective disorders including seeing Ms Stewart for psychological treatment for more than a year.

The practitioner's submissions

1. Rather understandably the practitioner accepted the Commission's submissions. We say understandably, as she indicated that she was somewhat surprised at the shortness of the length of suspension proposed by the Commission. Some of the medical evidence before the Tribunal, being clinical notes of her psychologists, record her concerns and anxiety about not being allowed to practise for a lengthy period of time.
2. It is appropriate at this point to refer briefly to the practitioner's statement of 27 February 2020 referred to earlier in these reasons. In summary, the practitioner:

• says that she is still currently coming to terms with the consequences of the decisions she has made, and how they have affected the people she loves, including her work colleagues, past employers, the doctors who have treated her, and government agencies;
• admits that she had an opioid dependency, and in order to get that medication started to lie to a number of people around mid-2015;
• accepts she deceived many people and takes full responsibility for her lies;
• says she is seeking professional help in order to improve her physical and mental health;
• says she has struggled with chronic pain since a terrible car accident in 1989 resulting in a compound dislocation of the right ankle, a fractured fibula and tyre burn to the medial part of the right foot and the prospect of amputation; and multiple corrective surgeries since;
• states that after a period of lesser pain, in the early 2000s the pain increased, she had to use crutches to walk on a semi regular basis and she was prescribed Panadeine Forte for pain. She also started taking anti-depressants to cope;
• when Panadeine Forte became ineffective she was prescribed Oxynorm (10mg) increasing to 20mg, and then 40mg;
• says that over time she started to want to use the medication more than the twice a day dosing which meant her script would be required earlier.
• lied to her general practitioner Dr Wabbas in order to get more medication, and then started seeing her general practitioner Dr Khan in August 2015 to procure scripts from him as well.
• says that while working at CWG she never stole undispensed Schedule 8 medications from the dispensary, but did steal Schedule 8 medications that were returned by the public either because they were out of date or because they were no longer required.
• admits that she did not record the return of these medications but instead she would place them in the bottom of the drug safe and then take it out as she needed it. She took Oxycontin, MS Contin and Oxynorm, of varying strengths;
• admits she did take Endone from the safe at CWG in October 2017 later saying it was for her husband;
• admits that she lied about that event on a number of occasions, to a number of different people;
• says the time she was working at the FPLM, she was addicted to opioids and when she could not get a script, she would take boxes of Oxycontin 20mg or 40mg from the safe, adjust the order in from the wholesaler and then adjust the drugs register;
• says that by January 2018 and she had developed an opioid dose reduction strategy with Dr Khan;
• says that when contacted by PRU officers she lied to them;
• decided to stop taking Oxycontin around the end of August 2018, and has not taken Oxycontin since then;
• says her solicitor has suggested she speak to Dr Khan about being assessed by a pain management specialist.

1. The practitioner concludes her statement by saying: "The above information is an approximate chronological order of my road to addiction but what it doesn't highlight is the depression I felt due to this chronic injury and consequently the addiction to opioid pain medication. My subsequent life had suffered because of this, my 23 year marriage has ended, my children are disappointed in me. I have received support from a psychologist and am openminded about whether I need to see a psychiatrist. I am seeking help to deal with my health issues, and I will continue to reflect upon how my behaviour has impacted others, including the public. There was an ethics component to the PSA course that I did in 2018, but I appreciate that is not enough, and I will seek out some ethical counselling to assist me to gain further perspective and repair my own ethical framework. Finally, I want to apologise to the good people at the Pharmacy Council, who gave me ample opportunity to admit to my addiction and the impact that addiction has on professionals such as pharmacists. I was not strong enough at that time to come clean. I never thought I would get away with it, but I just did not know how to explain my complex situation.

Consideration

1. The relevant principles in determining a protective order have been stated on many occasions and include the following: 1. the protection of public safety and health is paramount; National Law, s 3A; 2. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); 3. the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; 4. protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so: Prakash at [91]; 5. the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340; 6. whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]; 7. the protective order should be "the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)": Health Care Complaints Commission v Ly [2010] NSWMT 20 at [20]; NSW Bar Association v Meakes [2006] NSWCA 340 at [113]-[114]; 8. Whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
2. By and large we accept the Commission's submissions that it is neither appropriate nor necessary to cancel the practitioner's registration, and we also accept that she must be suspended for a period of time. The principal reason for this is that there is a public interest in having the respondent's conduct denounced as unacceptable: Do at [38].
3. As we have noted, the conduct of the practitioner was objectively very serious: she stole thousands of tablets of Schedule 8 medication from her employer, she falsified invoices and drug registers and then lied about this conduct to the PRU and the Council; this conduct continuing over a period of four years. And she deliberately abused her position as a pharmacist to facilitate her misappropriation of those drugs for her own use.
4. We consider that, objectively, the professional misconduct of the practitioner is of such a serious nature that any protective order short of suspension would be an inadequate response to the seriousness of her misconduct: Law Society of NSW v Foreman (1994) 34 NSWLR 408.
5. We accept that the practitioner is remorseful, even extremely so, and sorry for her actions. But we are concerned that her insight is not complete. We say that by reason of the following matters.
6. First, she has not been frank and honest with her general practitioner whom she is not regularly seeing. Due to her failure to inform Dr Khan of the diagnoses of Opioid Use Disorder of both Dr Samuels and Dr Wright, this resulted in an incomplete referral of her to Ms Stewart.
7. Secondly, we do not feel that Ms Francis, the most recent psychologist to have treated the practitioner, was fully appraised of the practitioner's complete medical history.
8. Thirdly, the practitioner has taken no steps to see a drug and alcohol counsellor or addition specialist.
9. In those circumstances, it is somewhat difficult to entirely accept the practitioner's statement that says she is seeking professional help in order to improve her physical and mental health. We consider that it is unlikely that she will obtain comprehensive adequate or proper medical assistance unless she is completely frank with those treating her.
10. Fourthly, she left it until the very week of the Tribunal hearing to inform her current employer of some of the personally embarrassing circumstances leading to the placing of conditions on her registration, and at the hearing her employer told us that the practitioner had not informed him that she had altered drug registers of invoices for Schedule 8 medication at previous places of employment.
11. Fifthly, her failure to engage fully and frankly with her general practitioner creates real issues in the assessment, development and co-ordination of an appropriate range of assistance and treatment for her.
12. All that said, we acknowledge the progress the practitioner has made, and recognise her honesty in the evidence she gave to us and the admissions that she made. We also acknowledge the very complimentary reference provided by her employer Mr Ray, and the support that he and his business partner provide to her.
13. At the hearing we raised our concerns that the three month period of suspension sought by the Commission sent an insufficient deterrent message to the profession and the community.
14. After considerable reflection, having considered all the submissions and the applicable principles, given the objective of the practitioner's conduct over a sustained period of time, we consider that there should be a slightly longer period of suspension than that sought by the Commission.
15. We consider that a period of suspension of six months is appropriate.

Conditions on registration

1. The practitioner did not oppose the conditions that the Commission proposed be placed on her registration. These are set out in our orders.

Costs

1. 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.
2. We propose to order the practitioner to pay the Commission's costs as agreed or as assessed.
3. If the practitioner wishes to seek some other order, she should provide submissions to the Commission and the Registry within two weeks, and the Commission can reply within a further two weeks.
4. That said, given the common sense of the parties and the evidence of considerable co-operation that both demonstrated during the hearing, we are confident that the parties will reach an agreement on this issue.
5. If it becomes necessary for the Tribunal to make a determination of this issue, we propose to decide the matter "on the papers", and without a hearing. If it is the party opposes that course it should address that matter in its submissions

Orders

1. The Tribunal orders as follows. 1. Each of Complaints One, Two, Three, Four and Five is established. 2. The respondent's registration as a pharmacist is suspended for a period of six months. 3. The following practice conditions are placed on the respondent's registration as a pharmacist: 1. To practise under Category B supervision in accordance with the Pharmacy Council of NSW's compliance policy- Supervision (as varied from time to time) and subsequently determined by the appropriate review body. 1. At each meeting the practitioner is to review and discuss her practice with her supervisor with particular focus on: 1. workload; 2. performance; 3. dispensing/drug register records; 4. appropriate dispensing procedures; 5. appropriate disposal of medication. 1. To authorise the Pharmacy Council of NSW to provide proposed and approved supervisors with: 1. a copy of the Tribunal's decision 2. a copy of the practice conditions on the practitioner's registration 1. Must not handle, possess, supply, dispense, administer, or manufacture any substance detailed in Schedule 8 of the NSW Poisons List (drugs of addiction, derivative or compound medication) or any substance detailed in an equivalent list of any other Australian state or territory. 2. Not to practise until a supervisor has been approved by the Pharmacy Council of NSW. 3. Not to work as the sole pharmacist. Upon entering the pharmacy premises in which she works, she must notify the pharmacist in charge. 4. To forward evidence to the Pharmacy Council of NSW within 7 days that she has provided a copy of this decision and her practice conditions to her employer(s). 5. Within 7 days of a change in the nature or place of her practice, she is to forward evidence to the Pharmacy Council of NSW that she has provided a copy of this decision and Orders (3)(a) - (3)(c) to her employer(s). 6. To authorise the Pharmacy Council of NSW to notify current and future persons or organisations at places where she works as a pharmacist in Australia, of any issues arising in relation to the compliance with these conditions. 7. Within three months of the date of this decision the practitioner is to commence the Ethics and Dispensing in Pharmacy Practice course offered by the Pharmaceutical Society of Australia (PSA), or an equivalent course approved by the Council: 1. Within 3 months of the date of the decision the practitioner must provide evidence to the Pharmacy Council of NSW of her enrolment in the abovementioned program. 2. Within 1 month of completing the abovementioned program, the practitioner is to provide documentary evidence to the Council of her satisfactory completion of the program. 3. To bear responsibility for any costs incurred in meeting this condition. 4. In the event that the abovementioned program is unavailable, the practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why she is making the proposal, by no later than 3 months from the date of this decision. 1. The following (private) health conditions are placed on the respondent's registration as a pharmacist: [NOT FOR PUBLICATION] 1. As to any review pursuant under ss 163 -163C of the Health Practitioner Regulation National Law, the appropriate review body for the purpose of a review is the Pharmacy Council of NSW when the respondent has a principal place of practice in NSW. 2. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Pharmacy Board of Australia.

Annexure A FPLM drug register adjustments by the practitioner for drugs she did steal

1. MS Contin 100 mg a. On 27 July 2017 140 tablets were taken out of the stock balance by Ms Bradley and attributed to "entered incorrectly in place of Targin 30/15". Symbion records show no record of the pharmacy receiving 140 tablets of targin 30/15 since February 2017. b. On 13 August 2017 56 tablets were supplied and invoiced from Symbion but were not entered into the drug register. c. On 23 August 2017 at 16.35 Ms Krupa Patel (pharmacist) completed a stock check and confirmed the balance at 16.35. At 19.41 Ms Bradley took out 28 tablets from the balance as "stock adjustment". d. On 6 October 2017 Ms Bradley entered 56 tablets into the drug register from Symbion. However, 84 tablets had been supplied and invoiced on 5 October 2017. e. On 29 October 2017 Ms Bradley recorded a stock check with a 112 tablet balance. A stock check by the pharmacy in January 2018 recorded no balance.
2. MS Contin 60mg a. On 29 October 2017 Ms Bradley recorded a stock check with a 68 tablet balance. A stock check by the pharmacy in January 2018 recorded a 40 tablet balance.
3. Oxycodone Sandoz 40 mg a. On 6 October 2017 Ms Bradley entered 196 tablets into the drug register from Symbion. However, 224 tablets were supplied and invoiced. b. On 29 October 2017 Ms Bradley recorded a stock check with a 224 tablet balance. A stock check by the pharmacy in January 2018 recorded a 56 tablet balance.
4. Oxycodone Sandoz 80 mg a. On 6 October 2017 Ms Bradley entered 56 tablets into the drug register from Symbion. However, 84 tablets were supplied and invoiced on that date. b. On 8 October 2017 Ms Bradley took out 28 tablets as "entered in as Sandoz brand not original brand". The invoice entered on 6 October 2017 was the only prior entry. c. On 29 October 2017 Ms Bradley recorded a stock check with a 28 tablet balance. A stock check by the pharmacy in January 2018 recorded no balance.
5. Oxycontin 40 mg a. On 14 June 2017 the practitioner negatively adjusted stock by 196 tablets attributing the adjustment to "new owners". b. On 22 June 2017 the practitioner negatively adjusted stock by 27 tablets attributing the adjustment to "new owners" 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 11 May 2022 - The decision was restricted pending a decision on an application from the respondent for a non-publication order in respect of her name.

Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 - Order 4 has been redacted due to the publication restriction. 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: 11 May 2022