Health Care Complaints Commission v Dabboussi

Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 2023/00244349

REASONS FOR DECISION

1. Mr Ahmad Dabboussi was first registered as a pharmacist in 1994. Between 1994 and 2019, Mr Dabboussi worked from time to time as a pharmacist and/or pharmacy owner. Since 1998, on several occasions Mr Dabboussi's registration has been either suspended or subject to conditions. In April 2021, following proceedings conducted under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law), the Pharmacy Council of NSW (the Council) suspended Mr Dabboussi's registration.
2. In July 2023, following investigation of complaints referred by the Council, the Health Care Complaints Commission (the Commission) lodged a complaint about Mr Dabboussi with the New South Wales Civil and Administrative Tribunal (NCAT). With the leave of the Tribunal, in May 2024 the Commission lodged an amended complaint. All references in these reasons to "the Complaint" are to the amended complaint. The Complaint consists of four individual complaints: Complaints 1, 2, 3 and 5. The Commission withdrew Complaint 4 from the original complaint.
3. For the reasons that follow, we find the Complaint established. We have decided to issue Mr Dabboussi with a reprimand and, in addition, to impose conditions on his registration. Those conditions are largely reflect those proposed by the Commission and except in relation to two discrete, the type of supervision and drug testing to which he should be subjected.

Onus and standard of proof

1. The Commission bears the burden of proving, on the balance of probabilities, the matters particularised in the Complaint: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3] (Leeming JA).
2. The Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act [1995 (NSW)] applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], (Leeming JA, Gleeson JA agreeing); Ng v Health Care Complaints Commission [2017] NSWSC 53 at [56]. (Gautam v Health Care Complaints Commission at [89] (Payne JA, Leeming JA and Simpson AJA agreeing)). Nonetheless, given the gravity of the allegations made against Mr Dabboussi, in deciding whether the particulars alleged are proven we have adopted the approach set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. See, Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 at [3].
3. Dixon J explained in Briginshaw (at 362) that when the law requires proof of any fact, "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more that will affect the consideration.
4. The authorities have consistently cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1].

Complaint 1

1. Complaint 1 states that, pursuant to s 144(a) of the National Law, Mr Dabboussi has been convicted of/been found the subject of a criminal finding for a criminal offence in NSW. The particulars of that complaint are: 1. On 29 September 2016, Mr Dabboussi was convicted by the NSW Local Court of the offence of 'goods in personal custody suspected of being stolen' contrary to s 527C(1) of the Crimes Act 1900 (NSW). 2. On 16 July 2021, Mr Dabboussi was convicted by the NSW Local Court of the offence 'not comply with noticed direction - COVID 19' contrary to s 10 of the Public Health Act 2010 (NSW). 3. On 8 August 2022, Mr Dabboussi was made the subject of a criminal finding in relation to the offence of 'Common Assault' contrary to s 61 of the Crimes Act.
2. Particular 1: The 'goods' the subject of this offence was a medical practitioner's prescription pad, which was found by Police in a car driven by Mr Dabboussi.
3. Particular 2: When he committed this offence Mr Dabboussi was managing a retail store. At that time, in response to the COVID-19 pandemic, the NSW Minister of Health had issued a direction under s 7 of the Public Health Act, which required retailers to display a QR Code in their premises. Customers were required to scan that code on entering the premises. Mr Dabboussi refused to display that QR Code. Section 10 of the Public Health Act makes it an offence for a person to fail to comply with a direction issued under s 7 of that Act, to which they are subject and have notice, without reasonable excuse.
4. Particular 3: Involved an altercation between Mr Dabboussi and his former wife when Mr Dabboussi returned to the family home to collect his possessions. Mr Dabboussi admitted to grabbing his former's wife's phone.

Consideration

1. In written submissions, headed "Reply to HCCC complaint", Mr Dabboussi did not expressly admit Complaint 1. In those submissions he claimed that at the time of each offence he was delusional and mentally unwell. In addition, he claimed that the reason he entered a guilty plea in respect of each offence was because he had received legal advice to do so.
2. In oral submissions, Mr Dabboussi said that he admitted each particular and the purpose of his written submissions was to put in context the three offences the subject of the Complaint 1.
3. Whether Mr Dabboussi was mentally unwell at the time of each offence or entered a guilty plea because of legal advice is irrelevant to the question of whether, as the Commission alleges, Mr Dabboussi was convicted of the offences of "goods in personal custody suspected of being stolen" (Particular 1), "not comply with noticed direction - COVID 19" (Particular 2), and found guilty of the offence of common assault (Particular 3). There is ample evidence to support each particular of Complaint 1.
4. Complaint 1 is proven.

Complaint 2

1. Complaint 2 states that Mr Dabboussi is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law because Mr Dabboussi contravened s 130(1) of the National Law. The particulars to that complaint state: "PARTICULARS OF COMPLAINT TWO 1. The practitioner contravened section 130(1) of the National Law in that he failed to notify the National Board in writing within 7 days of 29 September 2016, after being convicted with an offence punishable by imprisonment, namely the offence of 'Goods in personal custody suspected of being stolen' (H61438919/5) contrary to section 527C(1) of the Crimes Act 1900."
2. Section 130(1) of the National Law required Mr Dabboussi to notify the National Board within seven days after becoming aware that a "relevant event" has occurred. Being convicted of an offence punishable by imprisonment is a relevant event: National Law, s 130(3)(b)(ii). Mr Dabboussi admits failing as required by s 130(1) of the National Law to notify the National Board within seven days of being charged with the offence of "goods in personal custody suspected of being stolen" under s 527C(1) of the Crimes Act. That offence carries a maximum penalty of 6 months imprisonment: Crimes Act, s 527C(1)(b).
3. In written submissions, Mr Dabboussi submitted that his failure to notify the National Board within seven days of being convicted of "goods in personal custody suspected of being stolen" did not amount to unsatisfactory professional conduct under s 139B(1)(b) of the National Law because he had relied on incorrect information provided by the Australian Health Practitioner Regulation Agency (AHPRA) about his reporting obligations. Mr Dabboussi claimed he was told by AHPRA that he was only obliged to report a conviction if the offence carried a maximum custodial sentence of 12 months. He said as the offence for which he had been convicted carried a maximum custodial sentence of six months, he understood that he was not required to notify the National Board. He accepted that he was mistaken in his belief but contends that because he acted in good faith, his failure to notify the National Board does not amount to unsatisfactory professional conduct under s 139B(1)(b) of the National Law.
4. However, in oral submissions, Mr Dabboussi appeared to accept that his failure to comply with s 130(1) amounted to unsatisfactory professional conduct under s 139B(1)(b) of the National Law.

Consideration

1. Where, as here, a practitioner has contravened a provision of the National Law, by s 139B(1)(b) that contravention is deemed to be unsatisfactory professional conduct. The reason the practitioner acted in contravention of the National Law is irrelevant. See, Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [27].
2. By failing to notify the National Board within seven days of being convicted with the offence of "goods in personal custody suspected of being stolen", Mr Dabboussi contravened s 130(1) of the National Law. That contravention constitutes unsatisfactory professional conduct: National Law, s 139B(1)(b).
3. Complaint 2 is established.

Complaint 3

1. Complaint 3 states that Mr Dabboussi is guilty of unsatisfactory professional conduct under s 139B(1)(1) of the National Law because he gave false and misleading information to the Council and a psychiatrist to whom he had been referred by the Council for a health assessment. The background and particulars to Complaint 3 state: "BACKGROUND TO COMPLAINT THREE On 18 March 2021, the practitioner returned to Australia from Germany and was placed in hotel quarantine. Between 19 March 2021 and 24 March 2021, the practitioner was scheduled under section 27(1)(a) of the Mental Health Act 2007 and admitted to the Mental Health Unit of the Royal Prince Alfred Hospital ("RPAH") due to mental health concerns "RPAH admission". During his RPAH admission, the practitioner disclosed that he had taken illicit drugs during his stay in Germany including methamphetamines and Gamma hydroxybutyrate, "GBH", but had ceased drug use 10 days prior to his return to Australia. PARTICULARS OF COMPLAINT THREE 1. On or about 7 April 2021, the practitioner provided false and/or misleading information to the Council during section 150 proceedings as follows: a. When asked if he has been using recreational drugs whilst in Germany, he said "No"; and b. When asked why he would have said that to the hospital doctors when they were assessing him, he said words to the effect of 'I didn't, it was reported to them.' 2. On or about 20 May 2022, the practitioner provided false and/or misleading information to Dr Glenys Dore, who conducted a Health Assessment in relation to the practitioner in circumstances where: a. he told Dr Dore that, during his RPAH admission, he 'concocted' a story about using illicit drugs in early 2021, (namely methamphetamine and GHB [Gamma-Hydroxybutyric acid]) to facilitate his removal from hotel quarantine after his arrival from Germany.
2. Unsatisfactory is defined to include "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession: National Law,139B(1)(1). Mr Dabboussi admits the facts contained in the background to and each of the particulars of Complaint 3.
3. In written submissions prepared for these proceedings, Mr Dabboussi admitted that he gave false and misleading information to the Council and Dr Dore. However, it is not clear from those submissions whether Mr Dabboussi contends that that conduct cannot be characterised as "improper or unethical" because, at the time he was unwell and delusional.
4. Mr Dabboussi claims that from about April 2021 to mid-2022 he was mentally unwell and delusional. During this period, he became a "social media crusader", started a religious crusade, was "bewitched by the Medhi" and was encouraged to seek investors for what turned out to be a failed crypto currency venture. During this period, he says that he lost his business and personal assets. In statements prepared for these proceedings, Mr Dabboussi's partner and sister support his claim that he was mentally unwell throughout much of 2021 and 2022.

Consideration

1. The expression "improper or unethical conduct" is not defined by the National Law. In Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [21]-[26], a differently constituted Tribunal considered the meaning of that expression in the context of s 139B(1)(l) of the National Law. Applying the interpretation adopted by the Tribunal in Kesserwani, the question posed is whether, objectively assessed, the conduct the subject of Particulars 1 and/or 2 would be regarded by reasonable persons as falling below the standards of conduct to be expected of pharmacist, in that they have a tendency to bring the profession of pharmacy into disrepute.
2. If the answer to that question is yes, it will be necessary to decide whether the conduct the subject of Particulars 1 and/or 2 was conduct "relating to the practice of [Mr Dabboussi's] profession".

Giving false information to the Council and Dr Dore

1. The trigger for the s 150 proceedings held on 7 April 2021 was the mandatory notification made by Dr Fukui, who was Mr Dabboussi's treating psychiatrist during his admission to Royal Prince Alfred Hospital (RPAH) in March 2021. Dr Fukui reported that during that admission, Mr Dabboussi disclosed that he had been using methamphetamine and GHB on a daily basis while in Germany between November 2020 and March 2021.
2. As stated in Particular 1 of Complaint 3, during the s 150 proceedings on 7 April 2021, Mr Dabboussi denied taking recreational drugs while in Germany, or having told his treating doctors at RPAH that he had done so. As stated in Particular 2 of Complaint 3, during a health assessment conducted in May 2022 at the request of the Council, Mr Dabboussi told psychiatrist, Dr Dore, that the reason he told doctors during the admission to RPAH that he had used recreational drugs was to facilitate his removal from hotel quarantine.
3. We find that Mr Dabboussi's conduct in giving false and misleading information to the Council and Dr Dore would be regarded by reasonable persons as falling below the standards of conduct to be expected of a health practitioner. Reasonable persons would expect that health practitioners would be candid and frank in their dealings with the Council and any health practitioner who had been requested by the Council to undertake an assessment of the practitioner.
4. For current purposes we will assume but not decide that, as Mr Dabboussi appears to contend, if he did not knowingly give false and misleading information to the Council and/or Dr Dore because he was unwell, it could not be said that his conduct was unethical or improper for the purpose of s139B(1)(l) of the National Law.
5. In a report dated 24 May 2024, Dr Dore commented on the opinion expressed by psychiatrist Dr Koethe, that Mr Dabboussi may have Bipolar Disorder. Dr Koethe treated Mr Dabboussi in 2023/2024. Commenting on Mr Dabboussi's claim to have been delusional and possibly manic in 2021/2022, Dr Dore noted: 1. During her 1.5-hour assessment with Mr Dabboussi on 20 May 2022 there were no features to suggest he was delusional and possibly manic. Dr Dore noted that at that time, Mr Dabboussi reported no significant mood disturbance, stating that while the last 12 months had been particularly stressful, he felt he had developed strategies to manage stress more effectively. He appeared "relaxed and cheerful" throughout the assessment with no features to suggest hypomania or psychosis. 2. The features of mania and psychosis that were present when Mr Dabboussi was admitted to RPAH in March 2021 were attributed to drug-induced psychosis (ICE) and withdrawal from GHB. These symptoms were noted to fairly quickly resolve "without pharmacological treatment".
6. Finally, the submissions made and answers given by Mr Dabboussi during the s 150 proceedings held on 7 April 2021, do not tend to indicate that Mr Dabboussi was delusional or manic. The transcript of those proceedings indicates that Mr Dabboussi gave coherent responses to questions asked by the Council. The submissions he made were reasoned and responsive to the issues discussed during those proceedings.
7. We find that Mr Dabboussi knowingly gave false information to the Council and Dr Dore. Objectively assessed, that conduct would be regarded by reasonable persons as falling below the standards of conduct to be expected of a health practitioner.

Relating to the practice of the profession of pharmacy

1. While the impugned conduct did not occur while Mr Dabboussi was practising as a pharmacist, it nonetheless related to the practice of pharmacy. The practice of pharmacy encompasses conduct relating to the regulation of pharmacists under the National Law, including Division 3 - Complaints [NSW]. Responses given to the Council in s 150 proceedings and to Dr Dore during a health assessment, is conduct which relates to the practice of the profession of pharmacy.
2. Complaint 3 is proven.

Complaint 5

1. Complaint 5 states that Mr Dabboussi has an "impairment" within the meaning of s 5 of the National Law. The background to that complaint states that on 24 March 2021, during his admission to RPAH, Mr Dabboussi's treating psychiatrist diagnosed Mr Dabboussi with "substance use disorder".
2. By s 5 of the National Law "impairment" is defined to mean in relation to a person that: 5 Definitions … 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 …
3. To establish that Mr Dabboussi has an impairment within the meaning of s 5 of the National Law requires the Commission to prove that Mr Dabboussi is currently impaired: Tung v Health Care Complaints Commission [2011] NSWCA 219 at [58], [60]; Caladine v Health Care Complaints Commission [2007] NSWCA 362 at [11]. Currency of impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of any improvement since that time: Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 at [43].
4. The question raised by Complaint 5 is whether, as contended by the Commission, Mr Dabboussi has been diagnosed with "substance abuse disorder", and, if so, whether that disorder is likely to detrimentally affect Mr Dabboussi's capacity to practise the profession of pharmacy.
5. Mr Dabboussi agrees that he has a diagnosis of "substance use disorder". He concedes that in the past that disorder detrimentally affected his capacity to practise pharmacy but contends that it is not likely to do so in the future. Mr Dabboussi accepts that the disorder is lifelong but says that it has been in remission for over three years.
6. In deciding whether Mr Dabboussi has an impairment within the meaning of s 5 of the National Law, it is useful to provide an overview of the history of Mr Dabboussi's substance use disorder and the available expert opinion.

History of the disorder

1. The following information is a summary of a chronology prepared by the Commission and is not disputed by Mr Dabboussi Date Event 27/04/1998 Mr Dabboussi admits to self-administering painkiller and sleeping medication. Mr Dabboussi voluntarily relinquishes his drug authority. 06/05/1998 Mr Dabboussi gives an undertaking to the Pharmacy Board of NSW (the Board) to enter treatment and to authorise his treating practitioners to report non-compliance. 20/05/1998 - 13/06/1998 Between these dates, Mr Dabboussi self-administers unprescribed medication. 18/06/1998 Dr Robert Fisher (psychiatrist) assesses that Mr Dabboussi presents with a history of medication dependence and abuse. Dr Fisher recommends that Mr Dabboussi commence regular drug testing, reduce alcohol intake, and start treatment. 29/06/1998 Mr Dabboussi admits to breaching the Poisons and Therapeutic Goods Regulation 1994 (NSW) regarding his withdrawn drug authority. 09/08/2001 The Board suspends Mr Dabboussi's registration until 12 September 2001. This was periodically extended until 8 January 2003. 09/01/2003 The Board lifts Mr Dabboussi's suspension and imposes several conditions on his registration, including drug testing. 18/07/2004 Mr Dabboussi advises of nine doctors who provided him with medication. 06/06/2005 - 28/06/2005 Mr Dabboussi presents falsified prescriptions to a pharmacist. 13/07/2005 The Board suspends Mr Dabboussi from practice until 11 August 2005 and later extends that suspension. 30/11/2006 The Board finds Mr Dabboussi guilty of professional misconduct and imposes conditions on his registration. 25/02/2009 A trace of morphine is found in Mr Dabboussi's urinalysis. 11/06/2014 The Pharmacy Council of NSW (the Council) removes the drug testing condition on Mr Dabboussi's registration and discharges him from the Health Program. 24/12/2015 The Pharmaceutical Services Unit (PSU) advises the Council that drug authorities of Mr Dabboussi have been withdrawn due to his use of forged prescriptions. 11/01/2016 The Council imposes several conditions on Mr Dabboussi's registration, including not to practise as a pharmacist; not to possess, handle, supply, dispense, administer, or manufacture any Sch 4 or Sch 8 substances. 13/07/2016 The Council varies the conditions imposed on Mr Dabboussi's registration on recommendation of the Impaired Registrants Panel (IRP). 09/11/2016 On recommendation of the IRP, the Council amends the conditions on Mr Dabboussi's registration. 30/06/2017 03/07/2017 17/07/2017 On three occasions, the Council finds issues with Mr Dabboussi's Urine Drug Testing (UDT). 12/10/2017 On recommendation of the IRP, the Council varies the conditions on Mr Dabboussi's registration to include not working as a pharmacist-in-charge, and not entering any pharmacy premises without another pharmacist present. 08/11/2017 The Council recommends to the Pharmaceutical Regulatory Unit (PRU) that Mr Dabboussi's Schedule 4D drug authority be reinstated with exceptions. 27/11/2017 29/11/2017 13/12/2017 The Council discovers issues with Mr Dabboussi's UDT which prevents those tests being processed. 12/09/2018 On recommendation of the IRP, the Council varies the conditions on Mr Dabboussi's registration, to include a requirement that he attend a psychiatrist. 08/05/2019 On the recommendation of the IRP, the Council amends the conditions on Mr Dabboussi's registration, to include various prohibitions relating to Schedule 8 substances. 11/2020 - 03/2021 Mr Dabboussi reports that, between November 2020 to March 2021, he regularly consumed GHB and methamphetamine.

Dr Anthony Samuels

1. Between October 2016 and February 2019 at the request of the Council, consultant psychiatrist Dr Anthony Samuels assessed Mr Dabboussi on several occasions.
2. In a report dated 26 July 2018 addressed to the Impaired Registrants Panel, Dr Samuels said: "Mr Dabboussi does, in my view, suffer from an impairment within the meaning of the Law, namely opioid and benzodiazepine abuse in remission. These conditions seem to be in remission. He has had some significant issues with prescription substance use in the past and it is my view that these conditions do have a potential to impact upon his professional abilities and I continue to regard him as still being at ongoing risk of relapse, particularly if there are opportunities to access medications."
3. In February 2019, Dr Samuels again assessed Mr Dabboussi. At that time Mr Dabboussi's registration was subject to several conditions, including that he submit to random urine drug testing and quarterly hair drug testing. In a report dated 27 February 2019, Dr Samuels noted that between August 2018 and November 2018, there were numerous instances where Mr Dabboussi failed to report for testing. In addition, Dr Samuels noted that on testing on 7 September 2018, 10 September 2018 and 26 September 2018, Mr Dabboussi returned a positive UDT result.
4. Dr Samuels recorded that Mr Dabboussi reported to him that when admitted to hospital with kidney stones in September 2018 he was given morphine, Fentanyl and Endone for pain relief. Dr Samuels recorded that Mr Dabboussi reported that this exposure to drugs had not "triggered any problems", that he had not used alcohol or any "other substance relief" and had "no desire to use opioids". Dr Samuels concluded that from a psychiatric perspective, Mr Dabboussi "seems to be quite stable". Dr Samuels went on to say: "It remains my view that he does have an impairment within the meaning of the Health Practitioner Regulation National Law (NSW) ("the Law"); namely a significant problem of Opioid Abuse and Dependence which is in remission. His depressive condition seems to be in remission as well. A recurrence of opioid misuse could certainly have significant implications for his professional practice. I continue to regard him as being at risk of relapse, particularly if he had access to S8-type medications."
5. Dr Samuels recommended that Mr Dabboussi continue to be subjected to urine drug screening for a further three to six months, together with hair testing, until there is a "consistent period with no breaches, notified absences or contamination of samples with prescribed opiates". In Dr Samuels' view, if Mr Dabboussi were to require opiates for pain, that would be a potential risk factor for relapse with the "major risk factor of relapse" being access to Schedule 8 medications.

Dr Glenys Dore

1. At the request of the Council, consultant psychiatrist, Dr Glenys Dore assessed Mr Dabboussi in May 2022 and March 2024.
2. In a report dated 23 May 2022, Dr Dore recorded that Mr Dabboussi reported: 1. developing an addiction to opioid medications and benzodiazepines after an accident where his foot was crushed by a steel beam; 2. when admitted to hospital for that injury being given pethidine every three to four hours, which not only relieved pain but had "euphoric effects"; 3. when discharged from hospital, being given limited pain medication and commencing misappropriating pain medication from his pharmacy, initially for pain relief and later for "stress relief"; 4. after the suicide death of his sister in 2016/2017 relapsing and misappropriating opioids and benzodiazepines (pethidine, morphine, codeine and alprazolam); 5. since that relapse, not using illicit, misappropriated or non-prescribed substances; 6. denying having ever used methamphetamine (Ice) and GHB, stating he "concocted" a story that he used these in early 2021 to get out of hotel quarantine.
3. In respect of the treatment received for his substance use disorder, Dr Dore noted that Mr Dabboussi reported: 1. having previously had two to three detoxification admissions, for up to 7 to 14 days; 2. being under the care of addiction psychiatrist, Dr Stephen Jurd "from 2000/2001 for some time" but has not seen Dr Jurd for about ten years; 3. finding Naltrexone implants to be the most effective form treatment for him with ongoing abstinence from opioid misuse; 4. having no current drug treatment in place and initially being unclear as to why this would be required; 5. becoming more involved with his religion, Islam, in his mid-30s, and since then developing better control over relapses; 6. having regular contact with a religious counsellor, and being very close to his Sheikh.
4. Dr Dore found that Mr Dabboussi: "[M]eets the statutory definition of impairment in the form of a Substance Use Disorder (predominantly misappropriation and misuse of prescription medications: oral and injectable opioids and oral benzodiazepines). This disorder has detrimentally affected his capacity to practise as a Pharmacist in the past. While this disorder appears to be in long term remission, it has the potential to impact on his capacity to practise as a Pharmacist in the future should he have a relapse. It is difficult to reconcile Mr Dabboussi's denial of any use of methamphetamine and GHB, having previously reported this during his admission to RPA Hospital from 19.3.21. Had he used these substances, this would be indicative of an additional impairment, in the form of illicit substance misuse (methamphetamine and GHB). Had he "concocted" a false story of substance misuse to facilitate his removal from hotel quarantine, this would raise concerns about the mendacity of his self-reporting and his level of insight regarding the need for transparency about his substance use, given his involvement with the Pharmacy Council. Both options raise issues around protection of the public and public interest, with a need for close monitoring for any potential substance misuse."
5. Dr Dore recommended that before the Council consider lifting the suspension on his registration that Mr Dabboussi be required to: 1. provide evidence of a minimum of three months of abstinence from non-prescribed substances (both licit and illicit); 2. provide evidence that he is attending a nominated treating General Practitioner, and a clinician with expertise in addiction; 3. develop a detailed Relapse Prevention Plan and provide a copy of that plan to the Council; 4. demonstrate his active and positive engagement with matters related to the Council (including appropriate engagement with Health Assessment appointments).
6. In May 2024, at the request of the Council, Dr Dore again assessed Mr Dabboussi. In a report prepared following that assessment, dated 22 May 2024, Dr Dore concluded that: 1. Mr Dabboussi continues to suffer from substance use disorder (with polysubstance misuse), which has been in remission since mid-2021; 2. by reason of that disorder, Mr Dabboussi has an ongoing vulnerability to misusing prescription opioids and benzodiazepines; 3. Mr Dabboussi remains vulnerable to relapse with respect to misuse of illicit substances (methamphetamines and GHB); 4. if Mr Dabboussi were to relapse this would negatively impact on his cognitive abilities (including his judgment, decision-making and memory) and his behaviour; 5. by reason of the substance use disorder, Mr Dabboussi has an impairment as defined by s 5 of the National Law.
7. In Dr Dore's opinion, Mr Dabboussi had a recurrent depressive disorder which was currently in remission. Dr Dore said that Mr Dabboussi had "underlying personality vulnerabilities" which impacted negatively on his professional behaviour and interaction with the Council. Dr Dore expressed the opinion that, if he were to relapse these matters had the potential to impact on Mr Dabboussi's capacity to practise as a pharmacist.

Dr Dagmar Koethe

1. Mr Dabboussi was referred to psychiatrist, Dr Dagmar Koethe, in July 2023 and saw Dr Koethe on nine occasions.
2. In a report dated 20 March 2024 addressed to GPs, Drs Awal and Tan, Dr Koethe said that she had decided to return Mr Dabboussi to their care. After setting out the background to her decision to prescribe Mr Dabboussi Quetiapine (an antipsychotic) and Escitalopram (an anti-depressant), Dr Koethe said that Mr Dabboussi is "well, he does not have further changes in treatment at this point and is on mood stabilising medication, which worked well for him". Dr Koethe outlined her recommended treatment plan for Mr Dabboussi: 1. "Hand over his care back to GP 2. Continue Escitalopram 10 mg mane and Quetiapine 300 mg nocte 3. It would be recommended to restart with a psychologist 4. Ongoing urine drug screening would be helpful for him: the ones he has done with us were all negative 5. If he would be willing to fill in a mood calendar, that would be helpful."
3. Under the heading "diagnosis", Dr Koethe wrote: "Bipolar disorder, type 1 with recurrent depression, currently in remission, never hospitalised. DD: Recurrent depression with drug-induced psychotic episodes Drug-induced psychosis with manic features (2021) Multi-substance abuse, previously, and currently abstinent".
4. Dr Koethe did not address whether Mr Dabboussi was capable of returning to practise as a pharmacist.

Treatment

1. In her report dated 20 March 2024, Dr Koethe recorded that Mr Dabboussi reported that he stopped seeing his psychologist two months earlier as he "did not think it was helpful". Mr Dabboussi claims that after being discharged from Dr Koethe's care he attempted to recommence seeing psychologist, Dr Chadi Abbas. Mr Dabboussi saw Dr Abbas 11 times between August 2022 and November 2023.

Consideration

1. Drs Dore, Samuels and Koethe share the opinion that Mr Dabboussi has a substance abuse disorder. Whether, as Dr Koethe believes, Mr Dabboussi may also have Bipolar Disorder is not relevant to the question raised by Complaint 5, namely whether Mr Dabboussi's substance abuse disorder is likely to detrimentally affect his capacity to practise pharmacy.
2. In February 2019, when he last assessed Mr Dabboussi, Dr Samuels was of the opinion that while at that time his substance abuse disorder was in remission, Mr Dabboussi remained at risk of relapse, particularly if he had access to Schedule 8 drugs. In Dr Samuels' opinion, a recurrence of opioid misuse would "certainly have significant implications for his professional practice". In May 2022 and more recently in March 2024, Dr Dore expressed largely the same opinion. While Dr Koethe did not express an opinion about whether Mr Dabboussi's substance abuse disorder might affect Mr Dabboussi's capacity to practise pharmacy, the opinion she expressed in her report is not inconsistent with that expressed by Drs Dore and Samuels.
3. In her most recent report, Dr Dore said that in the past Mr Dabboussi's substance abuse disorder had detrimentally affected his capacity to practise pharmacy by impacting negatively on his: level of alertness; attention, concentration and memory; ability to problem solve; and general judgment and decision-making. In addition, Dr Dore expressed the opinion that if Mr Dabboussi were to use methamphetamines, it would likely result in behavioural disturbances: disinhibition, agitation and irritability.
4. Mr Dabboussi's long history of substance abuse has been punctuated by periods of abstinence and relapse. Given that history, the relatively short period Mr Dabboussi claims to not have used illicit substances or misused prescription medication, together with his failure to fully implement the recommendations made by Dr Koethe that he commence counselling, or Dr Dore, that he attend a clinician with expertise in addiction, we find that there is a material risk of relapse. If that were to occur it is likely to detrimentally affect Mr Dabboussi's capacity to practise pharmacy for the reasons given by Dr Dore referred to at [64] above.
5. Complaint 5 is established.

Statutory framework and principles that govern the making of protective orders

1. Where a complaint about a registered health practitioner made under the National Law is proven or admitted, the Tribunal may exercise any of the powers in Sub-div 6 of Pt 8 of the National Law: National Law, s 149. Those powers include to caution or reprimand the practitioner, to impose the conditions it considers appropriate on the practitioner's registration, to order the practitioner to undergo medical or psychiatric treatment or counselling, and, to complete an educational course: National Law, s 149A(1). In exercising the power to make an order under Sub-div 6 of Pt 8, the paramount consideration is the protection of the health and safety of the public: National Law, s 3A.
2. The power to suspend or cancel a practitioner's registration can only be exercised where the Tribunal is satisfied of one of the four matters listed in s 149C(1) of the National Law. None of those matters are alleged in the Complaint, therefore, the power to suspend or cancel Mr Dabboussi's registration cannot be exercised.
3. In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA commented at [101] that "[T]he adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order".
4. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA observed at [20] that, in making protective orders, the task of the decision-maker centres not on punishment but on the protection of the public and the maintenance of proper professional standards, citing with approval the comments made by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83]. "1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist."

Should protective orders be made and, if so, what form of orders?

1. The parties agree that Mr Dabboussi should be reprimanded in respect of the conduct the subject of Complaints 1, 2 and 3. In addition, the parties agree that conditions should be imposed on his registration. The Commission has proposed several conditions that largely reflect the recommendations made by Dr Dore and include: 1. That Mr Dabboussi not possess, handle, supply, dispense, administer, manufacture or have access to any substances detailed in Schedule 8 of the NSW Poisons List or any substances listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW) (Schedule 4 substance). 2. That Mr Dabboussi attend for treatment by an addiction medicine physician of his choice at a frequency determined by that practitioner. 3. That Mr Dabboussi undergo counselling and/or treatment by a psychiatrist, psychologist or therapist of his choice at a frequency determined by that practitioner. 4. Unless prescribed by and taken as directed by his treating practitioner, that Mr Dabboussi not self-administer any non-prescribed Schedule 4 substance, narcotic derivative, non-prescription compound analgesic, or cold medication, or substances listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW).
2. Mr Dabboussi consents to each of the above conditions being imposed on his registration.
3. The jurisdiction we exercise under the National Law is not a consent jurisdiction. In exercising the power to make protective orders the paramount consideration is the protection of the health and safety of the public. Nonetheless, we consider, that the proposed orders as agreed by the parties are appropriate.

Drug testing condition

1. The Commission proposes the following condition: "To comply with the Pharmacy Council of NSW Drug screening policy and Participant Procedure (as varied from time to time) and attend for: i. Urine drug screening (UDS) 3 times a week; and ii. Quarterly hair drug screening"
2. Mr Dabboussi claims that the cost of urine drug screening and hair drug screening is $110 and $400 per test, respectively, and that he cannot afford that cost. He accepts given his history of substance use disorder that that he must be required to submit to some form of drug testing. However, rather than the form of condition proposed by the Commission, Mr Dabboussi urges the Tribunal to impose a condition that he be subject to random urine drug screening eight times per month and not subject to hair drug screening.
3. Mr Dabboussi claims not to have used illicit substances or non-prescribed medication since returning form Germany in 2021. In support he points to the negative results on urine drug screening conducted on 23 August 2023, 8 December 2023 and 5 January 2024 and the statement prepared by his partner dated 31 May 2024 prepared for the purpose of these proceedings.

Consideration

1. Mr Dabboussi's claim of not using illicit substances or non-prescribed medication since mid 2021 is uncontradicted. However, given Mr Daboussi's long history of substance abuse, limited independent evidence to support his claim of being abstinent for the last three years, his repeated failure to comply with conditions imposed on his registration in relation to drug abstinence and drug testing, we conclude that the conditions proposed by the Commission to be appropriate and proportionate.

Practice under supervision

1. The parties agree that it is appropriate that Mr Dabboussi's registration be subject to the condition that he can only be permitted to practise under supervision. The Commission proposes that Mr Dabboussi practise under the Council's Compliance Policy - Supervision, November 2017 (the Supervision Policy). [https://downloads.pharmacycouncil.nsw.gov.au/compliance_policy_-pharmacy-_supervision_november_2017.pdf]. That policy provides for three categories of supervision: Category A supervision (direct supervision at all times); Category B supervision (indirect supervision, supervisor required to be at the same practice as the supervised pharmacist); Category C (indirect supervision, supervisor not required to be at the same practice as the supervised pharmacist). The supervised pharmacist must meet all costs associated with supervision.
2. The Commission submits that it is appropriate that Mr Dabboussi be subject to Category A supervision. Pointing to Mr Dabboussi's longstanding substance use disorder, together with a history of misappropriating prescription drugs, the Commission contends that Category C supervision, as proposed by Mr Dabboussi, would be insufficient to achieve the aim of protecting the public.
3. Mr Dabboussi says that if he is permitted to return to practice, initially he will practice on a voluntary basis. He says that the cost of Category A supervision is prohibitive, and, in addition, it will be difficult, if not impossible, to find a pharmacist who is willing to undertake direct supervision.
4. Given Mr Dabboussi's long history of substance abuse and the time that has elapsed since he has been in practice, it is necessary and appropriate that he be required to work under supervision. While the paramount consideration is the health and safety of the public, given the other conditions we propose to impose on Mr Dabboussi's registration, we have decided that, with the following amendments to the Supervision policy, Category B supervision will be sufficiently protective of the health and safety of the public: 1. That Mr Dabboussi be required to meet with his supervisor weekly, not fortnightly as required under Category B supervision. 2. That the supervisor be required to provide reports to the Council on a monthly basis, not every three months meet as required under Category B supervision. 3. That as required under Category A supervision, Mr Dabboussi not be permitted to engage in "independent practice", such as on-call, after-hours work, nursing home visits and home visits.

Return to practice

1. Mr Dabboussi has not practiced as a pharmacist since 2019. The evidence about his practice as a pharmacist before 2019 is unclear. While not raised by either party there is a real risk that Mr Dabboussi is currently not familiar, or sufficiently familiar with the rules and regulations which currently govern the practice of pharmacy in NSW. We recommend that the Council in consultation with Mr Dabboussi's appointed supervisor, consider requiring Mr Dabboussi to undertake further study, and if necessary, undertake an appropriate examination.

Costs

1. The Commission seeks an order that Mr Dabboussi pay its costs in these proceedings. Mr Dabboussi opposes that order.
2. Mr Dabboussi claims that his financial position is such that if the Tribunal were to make a costs order, it is likely to "precipitate bankruptcy". He claims that he and his partner are currently unemployed and dependent on Centrelink payments. In addition, he contends that as a result his poor mental health throughout much of 2021/2022 he was subjected to scams and lost business and personal assets. He points to proceedings commenced by the Australian Tax Office to recover from him a debt of $2.5M.
3. In exercising the power to award costs, conferred by cl 13, Sch 5D of the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Do at [51]. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40].
4. As the Commission points out, the authorities have consistently stated that "mere impecuniosity" is not a justifiable reason for departing from the rule that the successful party will generally be entitled to be paid their costs of proceedings. The requirement to pay costs can be onerous and we accept Mr Dabboussi's claim that he and his family are in straitened financial circumstances. However, in the absence of evidence of any disentitling conduct, the Commission as the successful party is entitled to their costs of these proceedings.
5. Mr Dabboussi is to pay the Commission's costs as agreed or assessed.

Orders Reprimand 1. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (National Law), the respondent is reprimanded. Conditions 1. Pursuant to s 149A(1)(b) and (c) of the National Law, the Tribunal directs that the following conditions be imposed on the respondent's registration: 1. Not to possess, handle, supply, dispense, administer, manufacture or have access to any substances detailed in Schedule 8 of the NSW Poisons List (drug of addiction, derivative or compound medication) or benzodiazepines or any derivative or compound medication thereof). 1. Contravention of condition (a) will result in the respondent's registration being cancelled. This condition is a critical compliance condition imposed under s 149A(4) and (5) of the National Law. 1. Not to possess, handle, supply, dispense, administer, manufacture or have access to any substances detailed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). 1. Contravention of condition (b) will result in the respondent's registration being cancelled. This condition is a critical compliance condition imposed under s149A(4) and (5) of the National Law. 1. Not to practise as the pharmacist in charge. 2. To attend for treatment by an addiction medicine physician of the respondent's choice. The frequency of treatment is to be determined by the treating practitioner. The respondent: 1. is to authorise the treating practitioner to inform the Pharmacy Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change); 1. must provide the Council with the professional details of the treating practitioner/s. 1. To seek and undergo counselling and/or treatment by a psychiatrist, psychologist or therapist of the respondent's choice. The frequency of treatment is to be determined by the treating practitioner. The respondent: 1. is to authorise the treating practitioner to inform the Pharmacy Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change); 1. must provide the Council with the professional details of the treating practitioner. 1. To attend for treatment by one nominated general practitioner of the respondent's choice. The frequency of treatment is to be determined by the treating practitioner. The respondent: 1. is to authorise the treating practitioner to inform the Pharmacy Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change); 1. must provide the Council with the professional details of the treating practitioner. 1. To comply with the Pharmacy Council of NSW Drug screening policy and Participant Procedure (as varied from time to time) and attend for: 1. Urine drug screening (UDS) 3 times a week; and 2. Quarterly hair drug screening 1. Not to self-administer any: 1. non-prescribed restricted substance (Schedule 4 Appendix D drug) as defined in the Poisons and Therapeutic Goods Regulation 2008 (NSW) or drug of addiction (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW), 2. narcotic derivative, non-prescription compound analgesic, or cold medication, or 3. substances listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) unless such medications are prescribed by his treating practitioner and taken, as directed by his treating practitioner. 1. Within seven days of being prescribed such substance or drug by their treating practitioner, the respondent must notify the Pharmacy Council of NSW and provide written confirmation of the treatment from the treating practitioner. 2. Contravention of condition (i)-(iii) will result in the practitioner's registration being cancelled. This condition is a critical compliance condition imposed under ss 149A(4) and (5) of the National Law. 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), varied as follows: that the practitioner meet with his supervisor weekly; that the practitioner provide reports to the Council on a monthly basis; that the practitioner not engage in "independent practice", such as on-call, after-hours work, nursing home visits and home visits and, as subsequently determined by the appropriate review body. 2. The respondent: 1. is not to practise until a supervisor has been approved by the Pharmacy Council of NSW. 2. at each supervision meeting is to review and discuss their practice with their approved supervisor with particular focus on: 1. substance abuse; 2. appropriate dispensing practices; 3. Professional obligations under AHPRA's Shared Code of Conduct; 4. Understanding of the Pharmacy Professional Practice Standards and Board Guidelines; and 5. Professional communication. 1. is to authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council. 1. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply while the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Pharmacy Board of Australia. 2. The appropriate review body for the purpose of a review under section 163 - 163C of the Health Practitioner Regulation National Law is the Pharmacy Council of NSW when the respondent has a principal place of practice in NSW. 3. 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 for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). Costs 1. The respondent is to pay the Commission's costs as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 18 November 2024 - coversheet and end of decision under heading Orders, text of order 2(b)(i) to read, (i) Contravention of condition (b) 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: 18 November 2024