Health Care Complaints Commission v Derias

1. This is the "Stage 2" decision in the proceeding commenced by the Health Care Complaints Commission (HCCC) and the subject of the Stage 1 decision delivered on 1 April 2025. That decision is reported as Health Care Complaints Commission v Derias [2025] NSWCATOD 31. In that judgment the Tribunal made the following orders:

(1) The Respondent is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (National Law).

(2) The Respondent is guilty of professional misconduct pursuant to s 139E of the National Law.

(3) The matter is to be listed for the Stage Two hearing on 23 July 2025 or otherwise directed by the Tribunal.

1. In opening the hearing of this Stage 2 portion of the proceeding, the HCCC informed the Tribunal that the order originally sought in the instrument which initiated this proceeding, was no longer sought however, the protective order now sought is as follows:

(1) Under section 149C (1) (b) of the Health Practitioner Regulation National Law, the Tribunal suspends the Respondent for a period of 1 to 3 months.

(2) Under section 149B(1) of the Health Practitioner Regulation National Law, the Tribunal imposes a fine on the Respondent for an amount of $20,000.

1. The HCCC did not file any further evidence in support of its case. It relied upon the judgment delivered by the Tribunal for the Stage 1 decision and provided both written and oral submission. The written submission was marked as MFI 1.
2. Although the hearing conducted on 23 July 2025 was conducted as a joint hearing of the three separate proceedings which were initiated against the joint proprietors of the West Gosford Pharmacy, each proceeding requires a separate judgment. The other two proprietors are Nader Saweris and Samer Morcos.
3. The Respondent tendered the following further evidence in the Stage 2 hearing.

Exhibit X3: A folder of documents relating to the Respondent.

Exhibit X4: Affidavit of the Respondent sworn 22 July 2025.

1. The Respondent provided submissions both written and oral. The written submission was marked as MFI 2.
2. Before considering the further evidence provided by the Respondent or the submissions of the parties' we here set out our finding on Complaint Five (that the Respondent was guilty of professional misconduct) in the Stage 1 hearing:

Finding on Complaint Five

569. This Complaint alleges the Respondent is guilty of Professional Misconduct as specified in s 139E. That section states that Professional Misconduct can be made out on either of two basis:

(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.

570. The HCCC relies on the Particulars to all of the Complaints One to Four both individually and cumulatively.

571. We have set out earlier in these reasons the extensive submission made by the HCCC in support of a finding of Professional Misconduct as sought in Complaint Five.

572. The HCCC relies, at the very least, on the cumulative instances of unsatisfactory professional conduct which it has established against the Respondent, to show the seriousness of that conduct is such as to justify a suspension or cancellation of the Respondent's registration. The HCCC argues that the seriousness of the conduct is not reduced even if the Tribunal is satisfied the Respondent did not know he could "challenge the authority of a prescribing doctor".

573. It is the HCCC case that the Respondent should have known he could refuse or moderate the extent or frequency of supply, in order to fulfil his obligation to the patient and the community at large. It was something which the expert had known since her time at university studying to obtain her degree in pharmacy.

574. At one level it is the HCCC case that without the capacity to refuse or modify the supply of a Sch 8 or Sch 4D drug, a pharmacist would never be able to ensure his dispensing was safe for a patient. The absence of such a power would remove any responsibility from a pharmacist for inappropriate dispensing which was strictly in accordance with the prescription presented. Such a circumstance would defeat what is a clear legislative intent to have a failsafe system in place in relation to the prescribing and dispensing of those very powerful and potentially health damaging drugs. The PTGR requires both the prescriber and the dispenser of those drugs to satisfy a very strict procedure to ensure, as far as possible, patients and the community are kept safe from the inappropriate use or dissemination of those drugs.

575. We have read the decisions cited for our benefit by the HCCC. Those include Health Care Complaints Commission v Pickett [2019] NSWCATOD 53 at [61], Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 at [165], and Health Care Complaints Commission v Elliott [2018] NSWCATOD 47.

576. The HCCC also cited the decision in Azzer at [145]-[146]. In that case the Tribunal stated:

"148. The seriousness of unsatisfactory professional conduct is to be measured by the extent to which it departs from proper standards. It is not measured by reference to worst cases. That would risk the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.

149. The Tribunal has previously commented on the importance of pharmacists adhering scrupulously to their obligations in relation to drugs of addiction and restricted substances, including those imposed by the PTGA and PTGR. For example, in Health Care Complaints Commission v Pickett [2019] NSWCATOD 53 at [61]."

577. In reaching a decision that the Respondent in that case was guilty of professional misconduct the Tribunal set out:

"155. The parties agreed that the most serious of the Complaints is Complaint 1. In our view, and we find, that is a correct characterisation of the conduct. The Respondent's failure to exercise his independent judgment to a limited degree, but then simply to accept whatever explanation he was given by the prescriber, when raised, fell significantly below what is required of any registered pharmacist. The failures had the real potential of causing risk to the patients involved, or the public at large.

156. Taken on its own, the established conduct the subject of Complaint 1 is, in our view, sufficiently serious to justify suspension or cancellation of the Respondent's registration. In coming to that view we have taken into account the relative inexperience of the Respondent in Australia at the time (which must be viewed, however, also with the knowledge that he had only recently gone through the learning required for registration); the environment the Respondent worked in where there appears to have been a wrongly held view that full independent judgment could be put to one side if a prescriber provided an answer; and the hours worked by the Respondent, the latter factor disavowed by the Respondent as excusing his conduct.

157. The degree to which the Respondent's conduct fell short of what is required of a registered pharmacist is evident from the very different practice he now adopts and the measures he has in place at the Junee Discount Pharmacy which he described in detail in his evidence. The Respondent did not exercise his own judgment that the practice of pharmacy dictates. He failed in his duty to take steps to protect the public's exposure to risk and harm. He failed in his role as gatekeeper and failed in his duty to properly assess prescriptions he dispensed where more thorough judgments were calling out to be made.

158. Taking and viewing all proven Complaints together, we are satisfied, and find, that the Respondent's unsatisfactory professional conduct was sufficiently serious to justify suspension or cancellation of the Respondent's registration and amounts to professional misconduct."

578. Mr Azzer, in the above cited decisions, was the employed pharmacist who is referred to in the evidence in this hearing and who is identified in the schedules to the Complaint document by the initials MA.

579. We have considered all the evidence in support of Complaint One and our findings in relation to same. We conclude that the conduct of the Respondent as established by the HCCC in Complaint One was of itself so serious as to amount to professional misconduct. The quantities and the strengths of the Sch 8 and Sch 4D drugs that he dispensed were such, that on many of the occasions the expert's opinion was that the dispensing was, without further evidence, contrary to recommended therapeutic standards.

580. The dispensing identified in Complaint One was for nine different patients. There are some 53 occasions of dispensing identified in Schedule 2 to the Complaint document with the Respondent's initials noted. The identified dispensing mainly arose in a circumstance where the prescribing doctor (who was practising improperly and unethically), provided some explanation, after being questioned by the pharmacist. The Respondent believed in such circumstances he was required to dispense the prescription in question.

581. The HCCC set out in the Complaint One that "Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified."

582. We have set out earlier our finding in relation to Complaint One Particulars 1(c) and 2(c), where the Respondent agreed he was guilty of unsatisfactory professional conduct based upon his failure to have regard to the patients' dispensing history. In his oral evidence, the Respondent agreed on many occasions that his dispensing under examination was inappropriate. He expressed remorse and professional embarrassment for his conduct.

583. Without having to consider his separate responsibility as a proprietor of the pharmacy as it related to the identified dispensing by Mr Azzer, we are satisfied the Respondent is guilty of professional misconduct. The findings we made in relation to Complaint One relating to the Respondent's failures as a pharmacy proprietor add weight to the decision we have already made that he is guilty of professional misconduct as defined in s 139E of the National Law.

1. Turning then to consider the further evidence tendered by the Respondent we have read and noted the following matters in particular in relation to exhibit X3
2. The Respondent included in exhibit X3 an affidavit sworn by him on 10 June 2025. In that affidavit we noted the following in particular.

(a) The Respondent is now a proprietor of one pharmacy in regional NSW. He divested himself of ownership in two pharmacies he had been a co-proprietor of (including the West Gosford Pharmacy) in April 2020.

(b) The Respondent set out the action he and his co-proprietors of the West Gosford Pharmacy took following the receipt of notice the PRU was conducting an investigation into the dispensing from that pharmacy (16 October 2019). The evidence of the action taken was provided in the Stage 1 hearing. We are satisfied the Respondent and his co-owners of the subject pharmacy business reacted swiftly and appropriately to the notification.

(c) The Respondent had his registration suspended by the Pharmacy Council on 29 October 2019. That suspension was lifted on 11 February 2020 with conditions imposed. The conditions were removed on 27 May 2020.

(d) On the recommendations of the Pharmacy Council the Respondent undertook a total of 12 mentoring sessions with Ms Woods a registered pharmacist. The reports of those sessions are attached to the affidavit and it can be seen that the session addressed multiple aspects of the practice of pharmacy and applicable legal and procedural requirements.

(e) The Respondent undertook additional CPD activities including specifically addressing the requirements of dispensing s4D and S8 medications. He named the particular courses he participated in or undertook.

(f) Since July 2023 the Respondent has been working two to three days a week in a pharmacy in the Wollongong area of NSW. That work is usually weekend work and during the week he works at a different pharmacy. Otherwise he works in different locations in NSW as he is offered employment on a daily basis. Working in a number of different pharmacies has given him wide exposure to the practices and protocols utilised by those establishments. He has learnt a great deal about effective communication with patients and collaboration with other health care workers. He has been able to share his knowledge obtained from his experiences with this proceeding and the additional CPD and actions he has undertaken to ensure he is knowledgeable about all aspects of the practice of pharmacy.

(g) The Respondent set out detail of having benefited from the opportunity to work in pharmacy businesses with very experienced pharmacists. He set out detail of changes to his practices which he has implemented as a result of sharing work with senior colleagues and his additional study.

(h) The Respondent has targeted study, courses and enquiry of mentors and colleagues to address the very areas of practice in which he was found wanting through the PRU investigation and the evidence in this proceeding. He set out practical examples from his practice, post the lifting of his suspension, which illustrated how he now approaches circumstances which were the subject of criticism by the PRU and this proceeding.

(i) In particular the Respondent set out how he has changed his practice in relation to addressing the presentation of a script for dispensing which he does not comply with recommended dosage. Armed with the knowledge which he has accumulated since November 2019 he is able to refuse to dispense a script even when a medical practitioner is pressing to have the dispensing actioned. He set out some examples of how he has implemented his knowledge since returning to practice.

(j) The Respondent has also addressed the criticism of his patient note making and he now ensures records are maintained as required.

(k) Since July 2023 the Respondent has undertaken 82 CPD Points. He has prioritised his learning in relation to opioid and s.4D drugs. He set out detail of specific courses he has undertaken.

(l) The Respondent addressed the remedial action he had taken as a proprietor of a pharmacy business. Detail of this was given in the Stage 1 hearing. He provided further detail of the action he has taken as a proprietor since July 2023. He detailed specific changes which he had implemented with his co-proprietors.

(m) Upon the publication of the Stage 1 decision the Respondent read the decision and reflected upon the findings. He set out: "I acknowledge the findings by the Tribunal in relation to Complaint One and Complaint Five. I accept full responsibility for the aspects of my professional conduct which fell short of the required standard. I deeply regret the circumstances which led to those outcomes." Further he stated: "While the context of Dr Sriskanda's misconduct and the general robustness of the QCPP system were acknowledged by the Tribunal, I understand and accept that those do not absolve me of the professional obligations I have to actively monitor and ensure compliance within my pharmacy."

(n) The Respondent attached 121 pages of documents which illustrated the activities he has undertaken following his suspension as a Pharmacist.

1. Also forming part of the documents in exhibit X3 are references from colleagues and associates. We have read those, including the updating of the references since the publishing of the Stage One decision. The references which are updated from the Stage 1 hearing say they have read the Tribunal decision and do not withdraw or change their references.

Exhibit X4. The affidavit of the Respondent dated 22 July 2025

1. The affidavit of Mr Derias set out evidence which we read and particularly noted the following:
2. This affidavit addresses the impact upon the Respondent of the suspension he was given by the Pharmacy Council on 29 October 2019. That suspension was lifted on 11 February 2020 with conditions imposed. Those conditions were removed from his registration on 27 May 2020.
3. At the time he was suspended the Respondent was the primary financial provider for his family. He was required to meet mortgage payments on his home. As he and his co-proprietors of the West Gosford Pharmacy could not work in the pharmacy business during the suspension period, they needed to employ locum pharmacists.
4. In order to meet the financial burden arising from his suspension as a pharmacist, the Respondent took on other employment including working as an Uber driver.
5. Once the suspension period expired, the Respondent sought paid employment as a pharmacist. He found it difficult to secure employment initially because of the conditions on his registration and the necessity for continuous disclosure to any potential employer.
6. In April 2020 the Respondent divested himself of his interest in both the West Gosford Pharmacy and Kogarah Pharmacy. That had the effect of further reducing his income to meet his family's expenses.
7. As set out in his statement which formed part of exhibit X3 the Respondent gave evidence of the additional education he undertook following his suspension. That came at a cost. The PSA course on Ethics and Dispensing in pharmacy practices cost $1,620. Membership fees of the Pharmaceutical Society of Australia cost $699. That was necessary in order to access educational courses. The fees paid to his mentor added up to $8264.
8. The Respondent engaged legal services in relation to his application under s 150A to have his suspension reversed. Those fees were not covered by his professional indemnity insurance and cost him $5,500.
9. The Respondent has been advised, along with his co-proprietors Mr Saweris and Mr Morcos that their defence legal costs would exceed the level of cover with their professional indemnity insurer. The Respondent has been told to expect an additional $8,000 fee which he will need to meet. Additionally he faces the prospect of a costs order in favour of the HCCC for the whole of the legal proceeding.

1. Mr Derias was not required for cross-examination.

The HCCC submission in writing dated 21 July 2025

1. The written submission of the HCCC was provided to the Tribunal shortly before the hearing on 23 July 2025. The submission addressed all three respondents whose hearings were heard concurrently. We noted the following in particular from that submission.
2. The HCCC submitted on the particular protective order it was seeking. It stated:

"In circumstances where the Tribunal has found each Respondent guilty of professional misconduct, the available protective orders include the cancellation or suspension of their registration as a pharmacist. (see National Law s. 149C (1) (b)). Other available protective orders include a reprimand, a caution, the imposition of conditions on each Respondent's registration, and a requirement that each Respondent undertakes an educational course or mentoring. (see National Law s. 149A (1)). The Tribunal also has the power to fine a Respondent up to 250 penalty units ($27,500) if 'the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest'. (see National Law s. 149B).

The Tribunal must observe the objectives and guiding principles of the National Law in exercising its disciplinary powers. The paramount consideration must be the protection of the health and safety of the public." (see National Law s3A (1))."

1. The submission then set out relevant considerations in formulating appropriate protective orders. It submitted:

"In determining what protective orders accord with these objectives, it is relevant for the Tribunal to consider:

(a) whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character;

(b) the intrinsic seriousness of the misconduct in terms of fitness to practise;

(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character;

(d) the motivation which may have given rise to the proven episode of misconduct;

(e) the underlying qualities of character shown by previous and other conduct; and

(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner. (see Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 at [17]; Health Care Complaints Commission v Gupta [2019] NSWCATOD 29 at [75]; Health Care Complaints Commission v Richards [2023] NSWCATOD 19 at [111].

It cannot be assumed that a practitioner has been reformed. Reformation is the exception rather than the norm and requires 'clear proof', demonstrated by more than the passage of time without misconduct. That is, the mere passage of time is not a mitigating factor.

A practitioner is not automatically entitled to a credit for any period of suspension they have served or any period for which their registration has been subject to conditions. The question is whether cancelling their registration, or a further period of suspension, is appropriate to protect the public and maintain professional standards. (see Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [73])."

1. The HCCC then conceded the following in relation to each of the joint proprietors of the West Gosford Pharmacy:

"The Commission accepts that there is no identifiable need for specific deterrence of the Respondents. Their misconduct occurred more than six years ago. They have each been practising without conditions since early 2020 (for Mr Saweris and Mr Morcos) or mid-2020 (for Mr Derias). No subsequent issues with their practice have been brought to the Commission's attention. They appear to have developed insight into the deficiencies that led to their misconduct and made changes to their practices to address them. While they did not formally admit many aspects of the Commission's complaints, the Tribunal was impressed with their candour in the witness box and found that they had expressed remorse.[1] In those circumstances, the Commission accepts that the Respondents' failure to make early admissions just means that a mitigating factor which might otherwise have been available to them is not, rather than counting against them.

However, there is a significant need for general deterrence and denunciation of the Respondents' conduct."

1. The submission stressed the seriousness of the conduct found against the Respondent by the Tribunal in the stage 1 hearing.
2. In the submission which collectively addressed the three Respondents, the HCCC submitted:

(1) The Respondents failed to have regard to several patients' dispensing histories when dispensing Schedule 8 and Schedule 4D drugs, in circumstances where they must have realised the importance of having regard to a patient's dispensing history, and that there was a real potential for harm to have been caused to their patients if they failed to do so.[2]

(2) Each Respondent personally dispensed Schedule 8 and Schedule 4D drugs to several patients contrary to the recognised therapeutic standard of what was appropriate in the circumstances, in circumstances where he understood that the quantity he was dispensing was contrary to that standard and should have refused supply or take other action to ensure the safety of the patient and the public.[3] It was uncontroversial that the inappropriate dispensing of Schedule 8 and Schedule 4D drugs has the potential to harm the safety or health of patients.[4]

(3) In relation to the Respondents' responsibilities as proprietors: 'This was not an isolated and difficult to detect occasion of inappropriate dispensing by an employed pharmacist, it was a very extensive and long standing (12 months) history of inappropriate dispensing of Sch 8 and Sch 4D drugs.'[5]

(4) The personal dispensing the subject of complaint 1 against each Respondent was serious enough by itself to justify a finding of professional misconduct.[6] Each Respondent's failings as a pharmacy proprietor added weight to that conclusion.[7]

1. The HCCC then submitted: "The seriousness of the Respondents' conduct is such that a reprimand would not send a sufficiently strong message to the profession and the community that conduct of this kind is wholly unacceptable." That submission was made in particular as the Respondent's case is that a Reprimand alone would, in combination with the adverse consequences of the action already taken against each of the three Respondents, be a sufficient general deterrent.
2. The HCCC then referred to the decision of the Tribunal in the case of Health Care Complaints Commission v Azzer [2024] NSWCATOD 70 (Azzer). That decision was made on 5 June 2024 following a hearing on 8 and 9 April 2024. The HCCC set out some of the conclusions in that judgment in the submission and specifically referred us to the protective order made, namely a suspension for three months. While quick to point out that such a decision should not be seen to bind this Tribunal and also acknowledging that each case needs to be determined on its own facts, the HCCC submitted a suspension for each of the three Respondents, in this case, of between one and three months would send a strong message to the profession.
3. In the alternate to a period of suspension the HCCC submitted the Tribunal could impose a fine. The HCCC submitted a fine of $20,000 would be an appropriate amount to set.
4. The HCCC concluded its written submission by attaching extracts from the submission it made for the Stage 1 hearing. Those addressed matters relating to the seriousness and extent of the Respondent's misconduct. It also set out extracts from decisions of the Tribunal which addressed specific aspects of the practice of pharmacy and the obligations at law and to the community of registered pharmacists.

1. The three Respondents whose cases we heard concurrently were all represented by the same solicitor and senior counsel. The written submission which was marked as MFI 2 addressed collectively the cases of each Respondent. The submission is lengthy, and we have particularly noted the following matters which it addressed.
2. The Respondents submit that a Reprimand is the appropriate protective order for the Tribunal to impose on each of the three Respondents. In the submission the Respondents state:

"The Commission's proposed conditions completely fail to pay due regard to the context in which the proven failures occurred namely, as "victims" to the proven professional misconduct of Dr Sriskanda as so found by the Tribunal: Decision [418],[419],[506],[507]. Further, the Commission's position fails to place proper weight upon the six years of extensive reflection, self-education, and reform in the respondents' conduct, demonstrating their present and ongoing capacity to engage in their roles to the highest standards of safety and care and where they have positively demonstrated that they no longer pose a risk to the public. Lastly, it this case the respondent's decision to not admit all aspects of the Complaint cannot be seen as a reflection of a lack of insight, given there was never any dispute as to the act of dispensing. Rather, the areas not admitted were matters for the Commission to prove to the requisite standard regarding the degree of the failure of the admitted conduct.

The Commission's orders further fail to engage with the express terms of Section 3 and section 3A of the National Law which outline the objectives and guiding principles relevant to all aspects of the operation of the National Law, including Subdivision 6, sections 149-149A, namely the disciplinary powers of the Tribunal. The common law principle of general deterrence, which the Commission relies upon in seeking suspension or a fine, is neither determinative of the appropriate order nor does it trump the balance of relevant common law principles or legislative considerations outlined in section 3 and section 3A."

1. The submission then addressed specific findings of the Tribunal in relation to Mr Derias. It referred to our findings in relation to Mr Derias' candour as a witness and his stated remorse. It drew attention to our findings that Mr Derias had been a victim of the practices of a since disqualified medical practitioner. It addressed the findings in relation to the mistaken belief of Mr Derias as to his ability to refuse to dispense a drug where the medical practitioner had been contacted and confirmed the drug was to be dispensed as prescribed.
2. The submission pointed to the finding that the Respondents' had acted promptly and appropriately when notified by the PRU of the irregular dispensing which ultimately gave rise to the Complaint.
3. The submission then concludes by proffering that each of the findings made by the Tribunal at stage 1 and particularly referred to in the submission, "strongly argues in favour of the appropriate order being a reprimand."
4. The submission then addressed each of the Respondents individual character, evidence of remorse, statements of shame and the insight which has been developed and is now evident. In relation to those matters we have set out in the stage 1 decision certain of our findings. We have set out in this judgment the evidence of Mr Derias in relation to: (i) the action he took immediately upon being notified by the PRU of the pharmacy failings; (ii) the action he has taken to educated himself further; (iii) the action he has taken to be mentored and; (iv) the action of taking employment to work alongside an experienced pharmacist following his being able to resume his profession upon the expiration of his period of suspension. We accept that action provides evidence of the obtaining of insight into the faults in his practice both as a pharmacist and as a proprietor of a pharmacy business.
5. The submission concludes addressing factual aspects of the cases of each of the Respondents with the following:

"Each Respondent's Stage Two Affidavit is exceptional for the simple reason that each Respondent particularises in short form (despite the length of each Affidavit), the extensive training and education they have undertaken to demonstrate their commitment to excellence in the practise of pharmacy. The extent of their learnings is not what was required to fill a gap in knowledge, as the Complaint is in fact extremely narrow regarding any established gap in knowledge or skill in that it was limited largely to the context of a specific relationship with the prescriber Dr Sriskanda and the dispenser. Again, it is the response of each respondent over a sustained period of more than 6 years, that makes this case exceptional and unique and supports a protective order of a reprimand."

1. The submission referred to the evidence of Mr Derias which illustrated his "deep regret" at to the circumstance which gave rise to the findings by this Tribunal against him. The words of his referees were quoted in the submission.
2. The submission then stated:

"The relevance of each Respondent's shame and remorse, and the observations of the highly complimentary and favourable observations of the many colleagues who have now worked alongside each of them, is that alone or in combination they support a finding that the Respondents should not receive protective orders that serves no purpose other than general deterrence. They should not be the vehicle to use to send a message to the public or the profession given the very unique circumstances in which their failures occurred and given the strength and integrity of their character, demonstrated by their countless ongoing responsive actions since the PRU complaint surfaced."

1. The submission then addressed Mr Derias's reform and education. We have set out at length his evidence in relation to those matters in this judgment and we do not repeat it here. Once again the Respondents in their collective submission set out the following summation of the evidence given in relation to their "reform and education":

"Each Respondent's Stage Two Affidavit is exceptional for the simple reason that each Respondent particularises in short form (despite the length of each Affidavit), the extensive training and education they have undertaken to demonstrate their commitment to excellence in the practise of pharmacy. The extent of their learnings is not what was required to fill a gap in knowledge, as the Complaint is in fact extremely narrow regarding any established gap in knowledge or skill in that it was limited largely to the context of a specific relationship with the prescriber Dr Sriskanda and the dispenser. Again, it is the response of each respondent over a sustained period of more than 6 years, that makes this case exceptional and unique and supports a protective order of a reprimand."

1. The submission then addresses matters of legal principle applicable to this determination. In paragraph 48 of the submission the Respondents say:

"The provisions of the National Law relevant to determining the appropriate protective order can be summarised as follows -the health and safety of the public will be protected if the public has access to the service of health practitioners, the health workforce is flexible, responsive and sustainable, and the scheme of registration and regulation of health practitioners operates in a transparent, accountable, effective and fair way. Most importantly, the health and safety of the public will be protected if restrictions on the practice of a health professional are imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality."

1. The final portion of the above extract from the submission is a direct reference to a sub-section of section 3A of the National Law (see s 3A (2)(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."

"The Respondent acknowledges in his submission that "there are other considerations, not included in the express terms of the statute, which underlie the purpose for which orders may be made in disciplinary matters, such as the maintenance of the good repute of the profession, and public confidence in the provision of health services. These are not phrases found in the National Law in NSW but rather arise, by implication, from the nature of the protective jurisdiction and expressed in the context of judicial or quasi-judicial decisions, as indirect protective concepts which, when explained in published decisions, have an educative 'public interest' purpose, by informing the profession and the public at large, of the manner in which the proposed orders are to benefit the community."

1. The Respondent submits the role of protective orders is not to punish rather it is to affect a mode of continuing public protection. (see Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [25]).
2. In relation to the aspect of preserving public confidence in the profession the Respondent refers the Tribunal to the decision in Medical Practitioners Board of Victoria v Lal [2009] VSCA 109 at [59]. In particular the words in that decision:

"Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high."

The submission then states: "The Respondents' failures were not ethical failures or matters of impropriety. No moral culpability underpins their conduct. Although the absence of 'moral turpitude'[8] is not determinative of the appropriate protective order, it argues strongly in favour of a reprimand as the only appropriate protective order.

As pointed out by Barrett JA in Lee v HCCC [2012] NSWCA 80 at [31], elements of [general] deterrence are subsidiary to other protective elements in the exercise of a protective jurisdiction. The actual deterrent effect that disciplinary proceedings have on the profession is very hard to ascertain, and the Commission has led no empirical evidence so support a submission that general deterrence is only met by a period of suspension, or imposition of a significant fine."

The Respondent addressed the appropriateness of a reprimand

1. The issue really to be addressed here is the impact as a general deterrent of a reprimand. The Respondent referred us to a number of decisions of the NSW Court of Appeal and the Tribunal which speak to the appropriateness of a reprimand. It is submitted:

"In NSW it has been said in a number of cases that a reprimand in itself acts as a deterrent both directly and indirectly: NSW Bar Association v Meakes [2006] NSWCA 340 (per Basten JA) and further, upholds and reinforces the standards of and confidence in the profession: Riley v Health Care Complaints Commission [2019] NSWCATOD 54 at [155]; Health Care Complaints Commission v Perera [2018] NSWCATOD 112; Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156.

A reprimand may be all that is necessary to indicate there is no further need for deterrence: Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102; Health Care Complaints Commission v Lord [2019] NSWCATOD 182.4. As Marks J said in Peeke v Medical Board of Victoria (Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993, at p6) a reprimand, "certainly does not trivialise a serious lapse of professional standards". It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications".

In Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 (13 May 2013) the Tribunal considered the effect of a caution on the one hand and a reprimand on the other. It was held that "[t]he ordinary meaning of the words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences." It does represent denunciation.

A finding of professional misconduct self-evidently represents the serious nature of the conduct proven against the respondents. That the National Law provides for the availability of any protective order (even no protective order) after a finding of professional misconduct is made, reinforces the evaluative judgement that this Tribunal must bring to the task at hand. General deterrence and the good repute of the profession is and can be reflected in a protective order that results in a reprimand."

1. The HCCC emphasised the importance of general deterrence. It supported the maintaining of high standards required of pharmacists. General deterrents are important even where the practitioners in this proceeding are no longer a concern in relation to the protection of the public.
2. The HCCC referred to the submission of the Respondent and submitted that the provisions of s 3A of the National Law cannot be support for the proposition that general deterrence is not important.
3. The HCCC referred to the quantities of dangerous drugs which were wrongly dispensed by each of the three Respondents, and submitted the quantity was very large. It was not an isolated event and the dispensing could have caused harm.
4. Although the Respondent was a victim of Dr. Sriskanda he did have a responsibility of his own as a pharmacist which was not exercised due to a mistaken belief.
5. If the Tribunal imposed a period of suspension on the Respondent of between 1 and 3 months it would not require him to divest himself of ownership of his remaining pharmacy in regional NSW.
6. The HCCC conceded the financial circumstances of the Respondent would be relevant to the consideration of imposing a fine as a protective order.
7. In reply to the oral submission of the Respondent (see below), the HCCC submitted that:
   • General deterrence is not achieved if protective orders are not imposed.
   • Action taken by the Pharmacy Council are not sufficient to be general deterrence by the time the case is before the Tribunal.
   • The principles set out in s 3A (s) of the National Law were in place when the decision in Do, referred to in MFI1, was decided in 2014.
   • In answer to the Respondent's submission on costs, the HCCC submitted that it not pressing parts of its' Complaints which it abandoned was a responsible action which should not be reflected in an adverse costs order.

1. The Respondent submitted the decision in the Azzer judgment is not binding on this Tribunal in terms of requiring this Tribunal to deliver a similar protective order to that which was visited on Mr Azzer. The respondent in that case faced 7 complaints including that he acted unethically and that complaint was established. The overwhelming majority of the dispensing which was set out in Schedule 2 to the Complaint against this Respondent was actioned by Mr Azzer.
2. The Respondent pointed out that the contest between the HCCC and this Respondent was not the disputing of the actual dispensing specified in the schedules to the Complaints, rather it was a case of the Respondent "not admitting" the Complaints Two, Three and Four.
3. The Respondent argued that the concept of General Deterrence is evident in the outcomes for the Respondent of the conduct which occurred the years prior to November 2019. Those outcomes include:
   • Three months of suspension from practice.
   • The loss of income arising from not being able to work in a pharmacy during the suspension period.
   • The decision for Stage 1 is a 157 page decision setting out in detail, for the public to see, of each of the Complaints made against the Respondent. There is a finding or professional misconduct.
4. In relation to the gravity of the offending, which was the subject of the HCCC submission, the Respondent submitted the matters set out in detail in his written submission at paragraph 5. The Respondent submitted he was accepted as an honest and remorseful litigant whose misconduct was a product of misunderstanding the role of a prescribing doctor and the power he had as a pharmacist to refuse to dispense a prescription in the face of a direction or insistence of the prescriber.
5. The submission addressed the circumstance of the Respondent being a victim of the professional misconduct of a medical practitioner who clearly took advantage of the respondent's misunderstanding of his ability to decline to dispense to her patients where that dispensing was inappropriate.
6. The Respondent pointed to the immediate action he took when confronted with the report from the PRU. It is submitted that was a responsible conduct.
7. Section 149 of the National Law makes clear that any of the powers specified in subdivision 6 Disciplinary powers of Tribunals [NSW] are available to the Tribunal. Those powers include the power to impose a reprimand (s 149A) and the power to suspend or cancel a health practitioner's registration (s 149C).
8. The Respondent submitted that the power to impose a fine pursuant to section 149B is caveated by the provision in s 149B(2)(b), namely:

"A fine is not to be imposed unless:

(a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and

(b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest."

1. The Respondent submits the Tribunal will be satisfied the imposition of a reprimand in this case, is appropriate.

1. The Respondent submitted the costs order should be framed so that the Respondent is required to meet 70% of the costs of the HCCC.
2. In support of an order which represents a percentage of the costs incurred by the HCCC, the Respondent submitted the following:

(a) The failure of the HCCC to establish Complaints Two, Three and Four, against the Respondent represented a substantial portion of the hearing time in Stage 1.

(b) The Complaints Two Three and Four were based upon alleged conduct of the Respondent which was said to be unethical and improper and was not based upon the conduct being significantly below the standard expected of the Respondent. As such, the importance of defending the Complaints numbered two, three and four is self-evident.

1. We have closely considered the evidence in this hearing. We have again reflected upon our findings and determinations in the Stage 1 decision. We have accepted the submission of the Respondent as to the appropriateness in this case of a Reprimand being imposed. We conclude that the imposition of a fine, as submitted by the HCCC, in the sum of $20,000 or in any sum, is unnecessary and in the circumstance of this case could reasonably be seen by the public at large as punitive and beyond that necessary to be a deterrent to the profession.
2. We are satisfied that the public will be safe and well served by the Respondent continuing to practice pharmacy rather than being suspended for between one and three months, or fined.
3. In reaching the conclusion that a Reprimand alone is sufficient to be a general deterrent and to achieve the protection of the reputation of the profession and public trust in those who practice as registered pharmacists. The general deterrent created by the publication of this judgment will emerge in the reading of the judgment and all that has befallen the Respondent since January 2019 when the PRU first notified him of the irregularities detected in an audit of the pharmacy business at West Gosford. It will further disclose all of the remedial action taken by the Respondent to ensure he is never again found wanting in his compliance with the law and the codes of conduct required of a registered pharmacist.
4. The list of actions taken by the Respondent since January 2019 includes the following:

(a) Responsive and timely changes to the practices and protocols utilised in the West Gosford Pharmacy.

(b) Attending with a mentor to address his practice concerns.

(c) Further formal education in relation to regulatory provisions applicable to the practice of pharmacy if NSW and Australia.

(d) Undertaking and obtaining qualification in relation to vaccine administering.

(e) Seeking work as an employed pharmacist where there is a busy practice and an experienced pharmacist to provide further guidance and direction.

1. The adverse consequences of the Respondent's conduct are as follows:

(1) Suspension for three months.

(2) Disposition of the West Gosford Pharmacy.

(3) Loss of income whilst suspended from practice and pending obtaining other employment.

(4) The cost of obtaining mentoring and additional education.

(5) Shame and disgrace experienced by having had action brought against him by the Pharmacy Council.

(6) The humiliation of having to approach colleagues and personal associates to explain what had happened to him in facing this proceeding and seeking a reference from those persons to place before the Tribunal.

(7) The publication of the Stage 1 decision which finds him guilty of professional misconduct. The consequent expected publication in practice journals and like publications circulating to the Pharmacists of NSW and further.

(8) The legal costs incurred above the upper limit the Respondent's professional indemnity insurance company will pay.

(9) The requirement to pay a proportion of the HCCC legal costs as hereafter provided.

1. Before concluding this part of the determination, we address the submission which was raised by the HCCC in relation to the Azzer case.
2. The point made by the HCCC about the Azzer judgment is that Mr Azzer, who was the employee of the Respondents' in the West Gosford Pharmacy was visited with a suspension for three months as a protective order by the Tribunal constituted differently from this Tribunal.
3. Whilst it is not appropriate to try and establish a yard stick for the making of a particular type of protective order as opposed to a different form of order, the HCCC has clearly raised the decision in Azzer to serve such a purpose, although building caution around the approach.
4. The facts found by the Tribunal against Mr Azzer were different to those established against each of the Respondents' in this case. In the Azzer decision the Tribunal stated in its conclusion:

"140 The Commission argued that the Respondent's conduct in this case was very serious.

141 The conduct that is the subject of Complaint 1 involved the Respondent dispensing large quantities of dangerous drugs to numerous patients repeatedly and over an extended period of time. These were drugs of a kind known to be liable to generate dependence and therefore prone to misuse, or abuse, by patients themselves, or illicit redirection into the community. Some of the quantities supplied to these patients were extraordinary - in some cases several times the highest recommended dose for serious cancer pain. More than one patient either had been, or subsequently had to be, treated for opioid dependence. It should have been obvious, even to the most junior practitioner, that this dispensing was manifestly excessive and liable to cause serious harm, either to the patients or others in the community. Indeed, as a junior pharmacist, the Respondent had only recently completed his intern training which he acknowledged included training about requirements for practising as a pharmacist in NSW."

1. Mr Azzer was found guilty of four of six Complaints of unsatisfactory professional conduct. One of those complaints alone was found to amount to professional misconduct.
2. The suspension imposed upon Mr Azzer by the Pharmacy Council in 2019 was for one month only followed by the imposition of conditions which were also removed in March 2020.

1. We are not clear how the HCCC is proposing to frame its costs in the sense of dividing the costs between the three respondents. It could seek an order that the Respondent pay one third of the costs of the HCCC incurred in the proceeding. It could also issue three separate costs assessments, being one for each of the Respondents. Although the hearing of each of the respondents separate proceedings have been heard by the Tribunal concurrently, the parties have required that each respondent's case also be considered separately and be delivered of a separate decision. That is what happened with the Stage 1 decisions and that same process will be adopted for this stage 2 hearing. In order to seek further input from the HCCC as to the wording of a costs order, the Tribunal had the Registrar enquire of the parties, on its behalf, as to such wording. The HCCC responded as follows:

"Should the Tribunal determine that each of the respondents pay a percentage of the costs incurred by the Commission, we request that in each of the three proceedings any costs order be expressed as a specified percentage of the costs of the Commission as agreed or assessed, acknowledging that any costs relating to preparing for and attending the hearings will be apportioned between the 3 pharmacist matters."

1. The HCCC provided oral submission in relation to the contest between the parties in relation to costs. It submitted the Tribunal can award costs. It confirmed the legal position that costs follow the outcome in a proceeding such as this. It submitted the HCCC was successful in the Stage 1 determination.
2. The HCCC conceded the non-establishment of Complaints 2, 3 and 4 is a relevant consideration for the Tribunal. It referred the Tribunal to the decision in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] and Health Care Complaints Commission v Abdallah [2025] NSWCATOD 76 at [168].
3. The HCCC submitted the hearing of Complaints 2, 3 and 4 added minimal time to the hearing and preparation of the Respondent's case compared to the balance of the Complaints. If the Tribunal was to consider a departure from an order that the Respondent pay the whole of the HCCC costs of the proceeding, it should express that in an order which requires the Respondent to pay a percentage of the HCCC's costs. The HCCC should not be ordered to pay the costs of the Respondent or any part thereof.

1. We conclude that this case does call for an order that the Respondent pay a share of the HCCC costs attributable to his proceeding. The Respondent has submitted that an order requiring the Respondent to pay 70% of the costs of the HCCC, either as agreed as to quantum or as assessed would be an appropriate costs order to make in the circumstances of this case. We agree that such a percentage payment is appropriate. We conclude that although the outcome of the Stage 1 hearing could be described as the HCCC having been successful in obtaining the findings it was seeking in the proceeding, it was not successful in each of the Complaints it prosecuted against the Respondent in the hearing.
2. It was a significant part of the action/Complaint litigated before us in the Stage 1 hearing, that the Respondent had failed in his capacity as a proprietor of the West Gosford Pharmacy to oversee, manage, supervise and intervene in the conduct of his employed pharmacist Mr Azzer. Complaints 2, 3 and 4 sought findings against the Respondent in his capacity as a proprietor. The cross-examination of the expert by each of the Respondent's senior counsel was lengthy and largely addressed the complaint directed at the action of this Respondent and his co-defendants, as the proprietors of the West Gosford Pharmacy. The detail of that cross-examination and our conclusions are set out in the Stage 1 decision. Ultimately the Respondent was successful in relation to his defence of Complaints 2, 3 and 4. That success arose in the circumstance of the Tribunal not having been satisfied to the requisite level by the evidence and argument advanced by HCCC. We conclude the successful defence of Complaints 2, 3 and 4 by the Respondent does warrant the exercise of discretion on the part of the Tribunal in the determination of this costs application and we find an order which requires the Respondent to pay 70% of the costs incurred by the HCCC in this proceeding is reflective of the successful defence.

(1) Pursuant to s 149A(1)(a) of the Health Practitioner National Law (NSW), the Respondent is reprimanded.

(2) This Respondent, Baher Derias, is to pay 70% of one third of the costs incurred by the Health Care Complaints Commission in the combined proceedings of suit numbers 2022/00317605; 2022/00317607; and 2022/00317611. Such costs to be as agreed or as 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.

[1] Saweris at [59], [409]; Derias at [399]; Morcos at [389].

[2] Saweris at [398], [402]; Derias at [385], [392]; Morcos at [375], [382].

[3] Saweris at [471]-[472]; Derias at [499]; Morcos at [489].

[4] Saweris at [407]; Derias at [397]; Morcos at [387].

[5] Saweris at [508]; Derias at [499]; Morcos at [489].

[6] Saweris at [587]-[588]; Derias at [579]-[580]; Morcos at [570]-[571].

[7] Saweris at [591]; Derias at [583]; Morcos at [574].

[8] Qidwai v Brown (1984) 1 NSWLR 100 at p104 referring to what was said by Sugerman J in Ex Parte Meehan; Re