PROFESSIONS AND TRADES - health practitioner - whether practitioner is suitable person to hold registration - appropriate form of protective order
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Catchwords
PROFESSIONS AND TRADES - health practitioner - whether practitioner is suitable person to hold registration - appropriate form of protective order
Judgment (19 paragraphs)
[1]
BACKGROUND TO COMPLAINT ONE
The practitioner graduated from the University of Canberra with a Masters of Pharmacy in 2011 and was first registered as a pharmacist on 15 September 2011.
At all times relevant to this Complaint the practitioner was employed as a pharmacist at Blooms the Chemist on Crawford Street, Queanbeyan ("the Pharmacy "Quenbeyan"). During this period, the practitioner also worked as a pharmacist at the Blooms Chemist, Karabar ("Karabar").
[2]
PARTICULARS OF COMPLAINT ONE
On 14 April 2014 and 29 July 2014, whilst at the Pharmacy Queanbeyan, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to himself without a written prescription of an authorised practitioner in circumstances where:
(a) the practitioner entered the prescribing doctor as Canberra Hospital in his dispensing records at the Pharmacy Queanbeyan; and
(b) the drugs were in a quantity or for a purpose which did not accord with recognised therapeutic standards of what was appropriate in the circumstances, where the practitioner knew or ought to have known that the substance was being abused for non-therapeutic purposes contrary to Regulation 54 of the Poisons and Therapeutic Goods Regulation 2008 ('PTGR')
On 20 January 2014 and 14 April 2014, whilst at the Pharmacy Queanbeyan, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 50 x 25mg Proviron tablets, to himself without a written prescription of an authorised practitioner in circumstances where:
(a) the practitioner entered the prescribing doctor as Canberra Hospital into his dispensing records at the Pharmacy Queanbeyan; and
(b) the drugs were in a quantity or for a purpose which did not accord with recognised therapeutic standards of what was appropriate in the circumstances, where the practitioner knew or ought to have known that the substance was being abused for non-therapeutic purposes contrary to Regulation 54 of the PTGR.
The practitioner created a false dispensing record for Patient D at the Pharmacy Queanbeyan for the drugs supplied on the dates as outlined in Schedule A contrary to Regulation 55 of the PTGR in that he entered the prescribing doctor as Canberra Hospital.
The practitioner supplied the drugs as outlined in Schedule A to persons unknown and/or for personal use without a written prescription of an authorised practitioner in circumstances where Patient D denies ever attending the Pharmacy Queanbeyan.
On 12 November 2014, the practitioner supplied the drugs Propecia, Duromine, Sifrol and Diazepam in the name of Patient D to a third party, not being Patient D, without a written prescription of an authorised practitioner.
The practitioner created a false dispensing record for Patient E at the Pharmacy Karabar for the drugs supplied on the dates as outlined in Schedule B contrary to Regulation 55 of the PTGR in that he entered the prescribing doctor as Canberra Hospital Dr Wv Hospital.
The practitioner supplied the drugs as outlined in Schedule B to persons unknown and/or for personal use without a written prescription of an authorised practitioner in circumstances where Patient E denies ever attending the Chemist Queanbeyan or Karabar.
On 28 August 2013 and 9 September 2013, the practitioner supplied 10 x 50mg Clomid tablets and 30 x 25mg Exemestane tablets, respectively, to Patient F without a written prescription of an authorised practitioner.
On 5 October 2013 and 14 May 2014, the practitioner supplied 25 x 10mg Temazepam and restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot, respectively, to Patient G without a written prescription of an authorised practitioner.
On 10 November 2013, the practitioner supplied 30 x 40mg Duromine capsules and 100 x 2mg Alprazolam, a Schedule 4D drug, to Patient H without a written prescription of an authorised practitioner.
On 10 November 2013, the practitioner supplied 30 x 30mg Duromine capsules to Patient I without a written prescription of an authorised practitioner.
On 31 January 2014, the practitioner supplied restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to Patient B without a written prescription of an authorised practitioner.
On 12 February 2014, the practitioner supplied 50 x 2mg Aprazolam, a Schedule 8 drug, and 50 x 5mg Diazepam to Patient J without a written prescription of an authorised practitioner.
The practitioner supplied, the following drugs on the following dates to Patient K without a written prescription of an authorised practitioner:
(a) 50 x 10mg Methoblastin tablets on 23 May 2014;
(b) 30 x 40mg Duromine capsules on 3 June 2014;
(c) 50 x 5mg Diazepam tablets on 3 June 2014.
On 13 November 2014, the practitioner supplied restricted substance AAS, a testosterone based item, namely 6 x 250mg ampules of Primoteston Depot to Patient A without a written prescription of an authorised practitioner.
[3]
COMPLAINT TWO
The Complainant contends that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy.
[4]
BACKGROUND TO COMPLAINT TWO
The background to Complaint One is repeated.
On 14 November 2014 the practitioner was arrested and cautioned at the Pharmacy by New South Wales Police. He was then taken to Queanbeyan Police Station where he consented to and took part in an electronically recorded interview.
[5]
PARTICULARS OF COMPLAINT TWO
During an interview on 14 November 2014 with Queanbeyan Police ('the Police interview'), the practitioner knowingly provided false and/or misleading information to Police in relation to Patient D in that he stated:
(a) that he was friends with Patient D;
(b) that he had known Patient D for 'about 10 years' and that he met him 'through a friend of a friend'
(c) that Patient D was prescribed Duromine, Diazepam and Novorapid by a medical practitioner;
(d) that Patient D was 'pretty big lad', had anxiety, and was diabetic;
(e) that on 12 November 2014, he dispensed Propecia, Duromine, Diazepam and Sifol to Patient D without a valid prescription "cause he has had them in the past"
in circumstances where Patient D asserts in a police statement dated 12 May 2015 that he has never met the practitioner and has never attended the Pharmacy Queanbeyan or Karabar.
[6]
COMPLAINT THREE
The Complainant contends that the Respondent Is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(b) of the National Law in that the practitioner contravened a provision of the National Law.
[7]
BACKGROUND TO COMPLAINT THREE
The background to Complaints One and Two is repeated.
The practitioner was convicted on 16 September 2015. On 2 November 2015, the practitioner notified the Pharmacy Council of New South Wales through his solicitor that he had been convicted of the criminal offences as outlined in Complaint One.
[8]
PARTICULARS OF COMPLAINT THREE
The practitioner failed to notify the Pharmacy Board of Australia within 7 days of his having been the subject of a finding of guilt on 16 September 2015 in respect of two offences of selling a restricted substance by a non-wholesaler without a written prescription of an authorised practitioner contrary to section 130(3)(a)(ii) of the National Law.
The practitioner failed to notify the Pharmacy Board of Australia within 7 days of his having been the subject of a finding of guilt on 16 September 2015 in respect of a third offence of possessing a prohibited drug contrary to section 130(3)(a)(ii) of the National Law.
[9]
COMPLAINT FOUR
The Complainant contends that the Respondent is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or
ii) 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
[10]
BACKGROUND TO COMPLAINT FOUR
The background to Complaints One, Two and Three is repeated.
[11]
PARTICULARS OF COMPLAINT FOUR
Complaints One, Two and Three and the particulars thereof are repeated and relied upon both individually and cumulatively.
[12]
COMPLAINT FIVE
The Complainant contends that the Respondent has been convicted of criminal offences in the State of New South Wales.
[13]
BACKGROUND TO COMPLAINT FIVE
The background to Complaints One and Two is repeated.
[14]
PARTICULARS OF COMPLAINT FIVE
On 16 September 2015, at the Local Court of New South Wales at Queanbeyan, the practitioner pleaded guilty and was convicted of:
(a) supplying a restricted substance by a non-wholesaler pursuant to s10(3) of the Poisons & Therapeutic Goods Act 1966 (NSW) ("PTGA") in relation to the following:
(i) on 11 July 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance (Anabolic Androgenic Steroids) ("AAS"), a testosterone based item, namely 50 x 25mg Proviron tablets, to himself without a written prescription of an authorised practitioner.
(b) Supplying a restricted substance by a non-wholesaler pursuant to s10(3) of the PTGA in relation to the following:
(i) on 10 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to Patient A, without a written prescription of an authorised practitioner;
(ii) on 22 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 6 x 250mg ampules of Primoteston Depot to Patient A, without a written prescription of an authorised practitioner;
(iii) on 10 July 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 3 x 250mg ampules of Primoteston Depot to Patient B, without a written prescription of an authorised practitioner;
(iv) on 28 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 6 x 250mg ampules of Primoteston Depot to Patient C without a written prescription of an authorised practitioner; and
(v) On 12 November 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substances, namely 30 x 30mg capsules of Duromine and 50 x 5mg tables of Diazepam and the prescribed substances, namely 28 x 1mg tablets of Propecia and 30 x 125mcg tablets of Sifrol to Patient D without a written prescription of an authorised practitioner.
(c) Possessing a prohibited drug on 14 November 2014, namely 32.76 grams of Dimethylamylamine, pursuant to s10(1) of the Drug Misuse & Trafficking Act 1985 (NSW).
The practitioner was directed to enter into a good behaviour bond for twelve months pursuant to s9(1) of the Crimes (Sentencing Procedure) Act 1999 from 16 September 2015 and was fined $110.00.
[15]
COMPLAINT SIX
The Complainant contends that the Respondent is not a suitable person to hold registration in the practice of pharmacy.
[16]
BACKGROUND TO COMPLAINT SIX
The background to Complaints One and Two are repeated.
[17]
PARTICULARS OF COMPLAINT SIX
Complaints One, Two, Three and Five and the particulars thereof are repeated and relied upon both individually and cumulatively.
[18]
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
[19]
Amendments
29 March 2018 - Pursuant to s63 Civil and Administrative Tribunal Act amendments to Respondent's name; [155]; Order 1; Insert new Order 2 and renumber subsequent Orders.
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Decision last updated: 29 March 2018
The Complaint consists of six individual complaints. Except where conceded in writing, we must make findings in relation to each complaint and then determine whether each is established: s 165H of the Health Practitioner Regulation National Law (NSW) (the National Law).
Mr Fearon admits four of the six complaints - being guilty of unsatisfactory professional conduct and professional misconduct (respectively, Complaints 3 and 4) and having being convicted of a criminal offence (Complaint 5). He denies knowingly giving false or misleading information to the NSW Police (Complaint 2) and not being a suitable person to hold registration in the profession of pharmacy (Complaint 6). Mr Fearon denies, in part or whole, 11 of the 15 particulars listed in Complaint 1: Particulars 1(b), 3, 4, 6, 7, 8, 9, 10, 11, 13, and 14. He admits the balance of the particulars in Complaint 1.
The central issues to be determined are:
1. Whether Particulars 1(b), 3, 4, 6, 7, 8, 9, 10, 11, 13, and 14 of Complaint 1 are established.
2. Whether, during an interview with Police on 14 November 2014, Mr Fearon knowingly gave false and misleading information as particularised in paragraphs (a) to (e) of Complaint 2.
3. Whether Mr Fearon is a suitable person to hold registration in the profession of pharmacy.
4. Whether protective orders should be made and, if so, what orders should be made.
5. Whether Mr Fearon should pay some or all of the Commission's costs.
The Commission bears the burden of proving the matters, particularised in the Complaint and denied by Mr Fearon, on the balance of probabilities. In cases such as this, where the allegations if found proven, carry potentially serious consequences such as the loss of the practitioner's livelihood, the evidence necessary to prove them was identified by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It is insufficient to rely on "slender and exiguous proofs" (per Rich J at 350), or "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362). As Dixon J said in Briginshaw (at 362), "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 they will affect the consideration.
The authorities have 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].
Similarity of the facts on which the disputed particulars and the offences for which Mr Fearon was convicted are based
Most of the particulars in Complaint 1 relate to Mr Fearon's alleged practice of dispensing Schedule 4 and Schedule 8 drugs without a written prescription and recording the prescriber as either 'Canberra' or 'Woden Valley' Hospital. Woden Valley Hospital was renamed Canberra Hospital in 1996.
Unless made by a pharmacist in accordance with the prescription of a medical practitioner, it an offence for a person to supply a restricted substance otherwise than by wholesale: s 10(1) of the PTGA. In September 2015, after entering a guilty plea, Mr Fearon was convicted of five counts of "supply of certain substances otherwise than by wholesale". The convictions related to four individuals, Patients A, B, C, and D. Mr Fearon admits being a friend or acquaintance of all but Patient B.
The details of the five counts are:
(i) on 10 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, a testosterone based item, namely 3 x 250mg ampules of Primoteston Depot to Patient A, without a written prescription of an authorised practitioner;
(ii) on 22 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 6 x 250mg ampules of Primoteston Depot to Patient A, without a written prescription of an authorised practitioner;
(iii) on 10 July 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 3 x 250mg ampules of Primoteston Depot to Patient B, without a written prescription of an authorised practitioner;
(iv) on 28 October 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substance AAS, being a testosterone based substance, namely 6 x 250mg ampules of Primoteston Depot to Patient C without a written prescription of an authorised practitioner; and
(v) On 12 November 2014, whilst at the Pharmacy, the practitioner supplied the prescribed restricted substances, namely 30 x 30mg capsules of Duromine and 50 x 5mg tables of Diazepam and the prescribed substances, namely 28 x 1mg tablets of Propecia and 30 x 125mcg tablets of Sifrol to Patient D without a written prescription of an authorised practitioner.
In relation to each of the offences admitted by Mr Fearon patient records had been created. A common characteristic was that rather than recording the name of a prescribing practitioner, the prescriber was listed as "Canberra Hospital" or "Woden Valley Hospital" in most cases. One instance records Patient C's GP as being the prescriber (the supply of Primoteston to Patient C on 28 October 2014), another records Mr Fearon as the prescriber (the supply of Primoteston to Patient B on 10 July 2014).
Did Mr Fearon supply the drugs listed in Schedule A to persons unknown and/or for his personal use?
Particular 4 reads:
The practitioner supplied the drugs as outlined in Schedule A to persons unknown and/or for personal use without a written prescription of an authorised practitioner in circumstances where Patient D denies ever attending Queanbeyan.
Mr Fearon denies Particular 4. He insists that the drugs listed in Schedule A were supplied to Patient D, not as the Commission alleges, to persons unknown and/or himself. The Commission on the other hand, relying on a statement provided by Patient D to Police in 2015, alleges that Mr Fearon supplied the drugs listed in Schedule A to either himself and/or persons unknown.
As noted above, in 2015, Mr Fearon was convicted of five counts of the offence of "supply of certain substances otherwise than by wholesale". One count related to four of the 36 supplies listed in Schedule A, namely the supply of the restricted substances, Duromine, Diazepam, Propecia, and Sifrol (the subject drugs) to Patient D, on 12 November 2014.
In a statement provided to Police dated 12 May 2015, Patient D wrote that he had not seen his GP since 2011, had not been to Canberra Hospital since 2009, had never been to a pharmacy in Queanbeyan to have a script filled, and had no knowledge of and had never purchased or been prescribed any of the subject drugs.
CCTV footage of the Queanbeyan pharmacy taken on 12 November 2014 shows a man giving an envelope to, and being handed drugs by Mr Fearon. After viewing that footage and interviewing Patient D, the investigating officer, Detective Senior Constable McDarmont, concluded that the man seen in the CCTV footage was not Patient D. He made a statement to that effect on 16 May 2015. Nonetheless, that conclusion was not reflected in the amended Police Facts Sheet tendered in the Local Court, which stated that Mr Fearon handed the subject drugs to Patient D. In addition, the Facts Sheet records that on 12 November 2014 Mr Fearon supplied to Patient D, Propecia, Duromine, Sifrol and Diazepam without a prescription. .
In a statement dated 27 June 2017 tendered by Mr Fearon in these proceedings, Patient D wrote that:
1. he had known Mr Fearon for over 10 years;
2. the claim he made in the statement to Police, prepared on 12 May 2015, that he had never been to a pharmacy in Queanbeyan was a "clear mistake", made because "the subjectiveness of my own duress" and "the coercion … from Queanbeyan Police detectives";
3. between June 2013 and December 2014, he had been to Blooms The Chemist in Queanbeyan and Karabar, on more than one occasion and had scripts filled by Mr Fearon. In addition, he had arranged for friends to collect medications from these pharmacies on his behalf.
Is Mr Fearon a suitable person to hold registration as a pharmacist?
In Complaint 6 the Commission alleges that Mr Fearon is not a suitable person to hold registration in the practice of pharmacy. In support, the Commission relies on Complaints 1, 2, 3, and 5.
The expression "not a suitable person to hold registration" is not defined by the National Law. Section 55 of the National Law provides some guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 of the National Law states that a National Board may decide that an individual is not a suitable person to hold general registration, if, among other things:
...
(b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or
...
(h) in the Board's opinion, the individual is for any other reason -
(i) not a fit and proper person for general registration in the profession; or
(ii) unable to practise the profession competently and safely.
The meaning of the expression "not a suitable person to hold registration" in s 114(e) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 (Brush) at [72], [73]:
[I]n considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and takes their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law).
While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills.
That interpretation was cited with approval by the Tribunal (A/DCJ Boland presiding) in Health Care Complaints Commission v Istephan (No 2) [2017] NSWCATOD and the Court of Criminal Appeal in Jung v R [2017] NSWCCA 24 at [56].
What protective orders should be made?
The Commission urges the Tribunal to make an order to cancel Mr Fearon's registration. In addition, the Commission seeks orders that Mr Fearon:
1. be disqualified from being registered for a period of 24 months, and
2. (ii) be prohibited from performing work in pharmaceutical services for the period of the cancellation.
Mr Fearon argues that a cancellation order is unnecessarily punitive, given that his registration has been suspended for three years and there is no risk the offending conduct will be repeated. He undertakes to comply with any conditions on his registration the Tribunal considers appropriate but points out that if they were to include restrictions on his ability to dispense Schedule 4 and Schedule 8 drugs, this would severely limit his ability to obtain employment. He expressed his willingness to submit to, among other things, mentoring, undertaking education courses, and regular auditing of his practice.
Where a complaint 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. They include the powers to caution, reprimand, impose conditions on a practitioner's registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course. In addition, if satisfied that the practitioner is not a suitable person for registration in their profession, or has been found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration: s 149C(1) of the National Law.
The National Law directs that 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: s 3A. While the health and safety of the public is the paramount consideration, the jurisdiction exercised by the Tribunal is nonetheless protective not punitive. Any order designed to protect the public from a repeat of the conduct that is the subject of the Complaint found proven, requires an evaluation of the seriousness of that conduct and the nature and extent of any justifiably apprehended harm that might be caused if it were to be repeated. No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose: NSW Bar Association v Meakes [2006] NSWCA 340 at [114].
The object of the protection of the public extends beyond the protection of the public from the apprehended harm that might be caused by the practitioner and extends to other public interest considerations. It includes general deterrence and the maintenance of public confidence in the profession. See Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
Should a prohibition order be made?
The Commission seeks an order under s 149C(5) of the National Law prohibiting Mr Fearon from providing "health services", specifically "work in pharmaceutical services", for the period of the cancellation of his registration.
The Commission's written submissions do not address the proposed order. We understand the Commission seeks this order because of the concerns about a mooted business partnership between Mr Fearon and one of his referees. According to Mr Fearon, the partnership, which did not eventuate, related to a venture supplying health foods and associated goods.
Section 149C(5) of the National Law states:
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order") do any one or more of the following--
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Section 5 of the National Law defines "health service" to include pharmaceutical services.
Because of our decision to make an order to cancel Mr Fearon's registration, the power to make a prohibition order can be exercised: s 149C(5A) of the National Law. That power can only be exercised if we are satisfied that Mr Fearon poses a "substantial risk to the health of members of the public" (emphasis added). In evaluating whether Mr Fearon poses a relevant risk, we adopt the approach taken by the Tribunal in Health Care Complaints Commission v Menz (No. 2) [2017] NSWCATOD 172 at [18] and [19] and ask whether Mr Fearon is likely to pose a real and material risk to the health and safety of the public if he were to be involved in the provision of pharmaceutical services other than as a registered pharmacist.
The term "pharmaceutical services" is broad in scope and covers a wide range of services. The Commission has not identified the type of pharmaceutical services where Mr Fearon might pose a relevant risk, or the nature of the risk that he might pose.
The Commission has failed to discharge the evidentiary burden of establishing that Mr Fearon poses a substantial risk to the health and safety of the public if he were to provide pharmaceutical services in a role other than a registered pharmacist. It follows that the power to make a prohibition order cannot be exercised.
Should an order for costs be made?
The Commission seeks an order that Mr Fearon pay its costs in these proceedings. Mr Fearon did not make submissions about that application.
In exercising the power to award costs, conferred by cl 13, Sch 5D to 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 Health Care Complaints Commission v Do [2014] NSWCA 307 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] HCA 11; 193 CLR 72 at [40].
In this case there is no suggestion of any disentitling conduct on the part of the Commission or any factor which might justify a departure from the "usual rule". We have decided to exercise the power to order Mr Fearon to pay the Commission's costs, as agreed or assessed.
By recording a hospital's name rather than the name of a medical practitioner as the regulations require, the Commission suggests that Mr Fearon was creating a sort of alibi for himself. He might be able to claim plausibly to the proprietors (or, indeed, any investigator) that this was a clerical error but that, unfortunately, he was unable to recall the name of the prescribing doctor. Unless a cross-check with the physical prescriptions kept at the pharmacy or the copy held by the alleged issuing practitioner was conducted, it would be impossible to contradict such a claim. Mr Fearon's plea of guilty to the criminal offences implies that he had concocted this modus operandi to camouflage his illicit activities. This raises a serious question in relation to other transactions in which Mr Fearon is listed as the dispensing pharmacist and the prescriber is listed as a hospital rather than a doctor identified by name.
The Commission contends that there are striking similarities between the admitted offences and the modus operandi used in committing them with characteristics of the transactions listed in the disputed particulars. From those similarities, the Commission submits that the Tribunal can reasonably infer that Mr Fearon was supplying prescribed medication without prescriptions. At common law, such evidence is known as "similar fact" or "propensity" evidence: see, for example, Pfennig v The Queen (1994) 182 CLR 461; [1995] HCA 7. Under the Evidence Act 1995 (NSW), such evidence is referred to as "tendency" or "coincidence" evidence: ss 97 and 98. Similar fact evidence refers to specific conduct that is of the same general characteristic or shares some common feature with the conduct which is the subject of the proceeding. It is a species of circumstantial evidence, tendered to assist in the proof of one or more of the elements of alleged conduct. As a proof, its significance is that "it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged": Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292, at 294-5, per Mason CJ and Wilson and Gaudron JJ. Because of the dangers of unfair prejudice, such evidence will only be admissible where the rules of evidence apply as part of a case to prove a person did a particular act or had a particular state of mind if it has significant probative value: see ss 97(1)(b) and 98(1)(b) of the Evidence Act. Although we are not bound by the rules of evidence (s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW)), our approach has been to treat this evidence with caution similar to that applied by courts. In our view, however, this evidence is of significant probative value.
The supplies referred to in the disputed particulars are based on the records of patient histories of Patients B, D, E, F, G, H, and I, provided to Police by the proprietors of the Karabar and Queanbeyan pharmacies in May 2015. Each entry in those histories records Mr Fearon as the dispensing pharmacist. All but a few record Woden Valley Hospital or Canberra Hospital as the prescriber.
There are striking similarities between the proven conduct which Mr Fearon admitted by entering a guilty plea and the conduct alleged against him in Particular 1, which he now denies. First, the dispensing of Schedule 4 and Schedule 8 drugs. Second, that in most cases, the dispensed drugs were anabolic steroids. Third, the use of the name of a hospital as prescriber rather than that of a medical practitioner. Fourth, at least in relation to the Queanbeyan transactions, a search in which no physical prescription has been found. Finally, that in relation to many of the transactions, the recipient was a friend or acquaintance of Mr Fearon. In our view, as a matter of common sense, this suggests, at least at a prima facie level, an objective improbability of the transactions occurring other than as alleged by the Commission. It is also relevant that in relation to Particular 1 of Complaint 1, which concerns Mr Fearon dispensing a prescribed substance to himself without a prescription, a particular that he admits, he recorded "Canberra Hospital" as the prescriber. We will now consider each of the particulars alleged against Mr Fearon in greater detail.
The Commission required Patient D for cross-examination. On the second day of the hearing we phoned Patient D on a mobile number supplied by Mr Fearon. The call was answered by a person who identified himself as Patient D. He requested that we phone back because of the poor quality of mobile reception in the area where he was then located. We rang back at an agreed time but the call was diverted to a message bank. We left a message requesting Patient D to contact the NCAT registry. On multiple occasions throughout the course of the hearing, we attempted to contact Patient D by phone without success.
Before us are two inconsistent and untested statements, purportedly prepared by Patient D. We accept, as the Commission contends, that Patient D is probably not a witness of truth having provided inconsistent accounts about matters that are the subject of criminal and disciplinary proceedings. However, this does not resolve the conundrum, which, if either of the conflicting accounts given by Patient D, or the person claiming to be Patient D, should be accepted.
Part of Particular 4, namely the supply of the subject drugs on 12 November 2014, is inconsistent with the facts of Mr Fearon's conviction outlined in the amended Police Fact Sheet tendered in the Local Court. While it is apparent that the investigating officers had misgivings about whether the impugned supply on 12 November 2014 was made to Patient D that is not reflected in the agreed facts on which Mr Fearon's conviction was based.
In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313, Branson J stated at [43] that while proof of a conviction is highly probative of the factual matters upon which a conviction is based there was "no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based". Her Honour stated that a conviction is strong prima facie evidence that the facts found by the court were found correctly. This places a "heavy onus", as Her Honour put it at [43], on a party seeking to persuade the Tribunal to accept facts other than those upon which the convicting court relied. Her Honour observed at [43] that this heavy onus:
[W]ill, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
In our view, because of the inconsistencies in the evidence, the Commission has failed to discharge the "heavy onus" referred to by Branson J. It follows Particular 4 is not established in relation to four of the 36 entries listed in Schedule A to the Complaint, namely the four supplies of the subject drugs on 12 November 2014.
With respect to the balance of Particular 4, namely the 32 supplies that were not the subject of the criminal conviction, in circumstances where it has been established to the criminal standard that Mr Fearon supplied the subject drugs to Patient D on 12 November 2014, together with the conflicting evidence about whether Patient D had purchased the subject drugs or been to the Queanbeyan pharmacy, the contention that the drugs listed in Schedule A were supplied to a person other than Patient D can be put no higher than a possibility.
Particular 4 is not established.
Section 114 of the National Law states:
The following complaints may be made about a registered health practitioner:
(a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
(b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
(c) A complaint the practitioner is not competent to practise the practitioner's profession.
(d) A complaint the practitioner has an impairment.
(e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. (Emphasis added.)
In our view, the expression "is otherwise not a suitable person" in para (e) should be interpreted as referring to the matters listed in the preceding four paragraphs. Adopting that approach, it falls to the Commission to establish that Mr Fearon is not a suitable person to hold registration in the profession of pharmacy, on grounds other than those listed in paragraphs (a) to (d) of s 114 of the National Law.
In our view, in the absence of a cogent reason, a pharmacist who in breach of the PTGR knowingly supplies prescribed medication, in particular, restricted substances and drugs of addiction, without a prescription or repeat authorisation, is unfit to hold registration as a pharmacist. That conduct not only constitutes an offence and puts at risk the health and safety of members of the public, it demonstrates a lack of integrity. The effectiveness of the statutory scheme governing the retail supply of prescribed substances and drugs of addiction requires pharmacists to act with integrity and to scrupulously adhere to the statutory requirements governing the supply of those drugs.
There can be no argument that at the time of the conduct that is the subject of Complaint 1, Mr Fearon was not a suitable person to hold registration as a pharmacist, on account of his conduct of repeatedly supplying prescribed medication without prescription. However, the issue raised by Complaint 6 is whether Mr Fearon is currently not a suitable person to hold registration.
In support of his claim that he is a suitable person to hold registration, Mr Fearon points to the following.
First, the opinion of persons of good repute who are aware of the facts of the Complaint but nonetheless attest to his good character. In these proceedings Mr Fearon tendered a number of character references. Since early 2017, Mr Fearon has worked in the Financial and Business Services unit of the Australian National University. His supervisor, Dean Pyke, describes Mr Fearon as a "model employee", who is "driven and dedicated whilst upholding integrity and probity as an employee, father and person". Mr Fearon's mother-in-law, Maria Honeybone, a registered nurse specialising in the field of mental health, wrote that the matters the subject of the Complaint struck her as "uncharacteristic aberrations" and she is aware of Mr Fearon's "most complete and sincerest regret". She observed that the offending conduct occurred during a period when Mr Fearon and her daughter were undergoing assisted fertility treatment, a time when each were under great strain. She wrote that throughout this period she was extremely concerned for Mr Fearon's mental health. Ms Honeybone wrote that this is the first and only occasion Mr Fearon's reputation has been brought into question and she is confident this will not reoccur. Mr Fearon's wife wrote in similar terms describing the conduct the subject of the Complaint as out of character and pointing out that it occurred during a period where she and Mr Fearon were under great emotional and financial pressure. These opinions about Mr Fearon's character were echoed by Mr Fearon's father, and Kieron Winfield; a family friend, in character references each provided.
Registered pharmacist, Dr Tracy Massil, worked with Mr Fearon, from April 2011 to June 2013. In a reference, tendered in the criminal proceedings, Dr Massil wrote that throughout the period she worked with Mr Fearon, initially as an intern pharmacist and, from March 2013, as a registered pharmacist, he demonstrated "honesty, responsibility, knowledge and respect to the profession and customers". She wrote that she was shocked and surprised to hear that Mr Fearon had been charged with criminal offences, given that her experience was that Mr Fearon was "always responsible and conscientious in following pharmacy rules and regulations". She wrote that the conduct which led to Mr Fearon being charged was out of character and she "strongly believes" he is very remorseful and regrets his actions.
Second, Mr Fearon's claim that he no longer associates with the people to whom he supplied drugs without prescriptions. He argues that as a result he will no longer be subject to pressure from these people to supply medication without prescription.
Third, his changed personal circumstances and a young family to support. He claims that throughout the three years his registration has been suspended, he has reflected on his actions and matured. He argues that the Tribunal can be confident that he would never again jeopardise his family's financial and emotional well-being.