Health Care Complaints Commission v Foster

NCAT Occupational|2021-12-15

g, the respondent is to include discussion of the issues highlighted in the Tribunal's decision, his personal and professional development, and any personal and/or practice issues as they arise. (c) The respondent is to authorise the mentor to report, in an approved format, to the Council on a quarterly basis. (d) The respondent is to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the respondent, or his compliance with any conditions on his registration. (e) The respondent is to meet the costs of this condition. (6) the respondent is to forward evidence to the Pharmacy Council of NSW within 14 days of commencing work as a pharmacist or changing a place of work that he has provided a copy of these conditions to his employer. This condition is to continue to apply for such period as is determined by the Council. (7) the respondent is to pay the costs of the applicant in an amount assessed in default of agreement. Catchwords: HEALTH - professional registration and discipline - pharmacist inappropriately dispensed regulated drugs of addiction and prescribed restricted substances - imposition of disciplinary sanction following finding of professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) ss 139B,139E,141,149A,149C,150,150A,165H Poisons and Therapeutic Goods Regulation 2008 (NSW) cll 54,109 Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 Lee v Health Care Complaints Commission [2012] NSWCA 80 Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep) Texts Cited: Australian Medicines Handbook (21st ed, 2020) Pharmacy Board of Australia, "Code of Conduct" (March 2014) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Peter James Foster (Respondent) Representation: Counsel: D Fuller (Applicant)

Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self-Represented) File Number(s): 2021/00141055 Publication restriction: An order is made pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the names, addresses or any other identifying information of any patient referred to in the Schedule to the Complaint or evidence in the proceedings, save as to where it is necessary for the Health Care Complaints Commission to share such information with co-regulatory agencies.

Background

These proceedings are constituted by an Amended Complaint by which the applicant Health Care Complaints Commission complains that the respondent Peter James Foster is guilty of unsatisfactory professional conduct and professional misconduct as those terms are defined in the Health Practitioner Regulation National Law (NSW) (the National Law) arising out of his practice as a pharmacist.
The Amended Complaint is in the following terms: "The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Pharmacy Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 (NSW) and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Peter James Foster of [address omitted] ("the practitioner"), being a pharmacist registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner was first registered as a pharmacist in New South Wales on 1 December 1997. During the period of the events that are the subject of the complaints ("relevant period"), the practitioner was an employed pharmacist at the David Wilson Day Night Chemist at Kirrawee ("the Pharmacy"). The practitioner had worked in the Pharmacy since 2001. During the relevant period, the Pharmacy was owned by Mr Dillan Lal ("Lal") and Ms Priya Patel ("Patel"). From time to time during the relevant period, the practitioner was the pharmacist in charge of the Pharmacy. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. BACKGROUND TO COMPLAINT ONE This complaint relates to the practitioner's supply of restricted drugs to Patients A to H. Annexures A to H to this Complaint identify drugs dispensed by the practitioner, Lal, Patel and other employees at the Pharmacy during the relevant period to Patients A to H respectively. Drugs dispensed by the practitioner are highlighted in yellow. The drugs identified in Annexures A to H are in the following categories: (i) drugs of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA), being drugs contained in Schedule 8 of the Poisons List proclaimed under section 8 of the PTGA (Schedule 8 drugs); and (ii) prescribed restricted substances within the meaning of the PTGA, being drugs contained in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) (Schedule 4D drugs). For the purposes of the particulars set out below, the recognised therapeutic standard of what was appropriate in the circumstances includes: (i) the Australian Medicines Handbook as in force at the relevant time; (ii) the Product and Consumer Medicine Information published by the Therapeutic Goods Association for the relevant drug at the relevant time; and (iii) the NSW Ministry of Health Guidelines for prescribing flunitrazepam and alprazolam issued March 2013. PARTICULARS OF COMPLAINT ONE All particulars other than particular 7 are relied upon as constituting unsatisfactory professional conduct individually or in combination with the other particulars. Particular 7 is relied upon as constituting unsatisfactory professional conduct only in combination with the other particulars. Patient A 1. Between 14 October 2015 and 15 March 2018, the practitioner supplied to Patient A a Schedule 8 drug (oxycodone) dispensed as set out in Annexure A: (a) in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR; (b) when Patient A was being supplied concurrently by the Pharmacy with benzodiazepines (diazepam) dispensed as set out in Annexure A; (c) knowing that Patient A was a drug dependent person; (d) in circumstances in which the prescriptions presented included non-Pharmaceutical Benefits Scheme (PBS) (private) prescriptions, when oxycodone was part of the PBS; and (e) by reason of subparagraphs (a) to (d) above, in circumstances in which the practitioner knew or should reasonably have known that the supplies presented a risk to the patient's health and safety or were at risk of misuse or diversion, contrary to guidelines 1 and 2 of the Pharmacy Board of Australia Guidelines for Dispensing of Medicines (Dispensing Guidelines). Patient B 2. Between 8 June 2016 and 29 April 2018, the practitioner supplied to Patient B a Schedule 8 drug (oxycodone) dispensed as set out in Annexure B: (a) in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR; (b) when Patient B was being supplied concurrently by the Pharmacy with another Schedule 8 drug (alprazolam) and benzodiazepines (diazepam) dispensed as set out in Annexure B; (c) in a pattern and quantities that, by themselves or in combination with the alprazolam and benzodiazepines being supplied to Patient B, should have indicated to the practitioner that the patient was or was at risk of becoming drug dependent; (d) in circumstances in which the prescriptions presented included non-PBS (private) prescriptions, when oxycodone was part of the PBS; and (e) by reason of subparagraphs (a) to (d) above, in circumstances in which the practitioner knew or should reasonably have known that the supplies presented a risk to the patient's health and safety or were at risk of misuse or diversion, contrary to guidelines 1 and 2 of the Dispensing Guidelines. 3. Between 8 June 2016 and 29 April 2018, the practitioner supplied to Patient B a Schedule 8 drug (alprazolam) dispensed as set out in Annexure B: (a) in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR; (b) when Patient B was being supplied concurrently by the Pharmacy with another Schedule 8 drug (oxycodone) and benzodiazepines (diazepam) dispensed as set out in Annexure B; (c) in a pattern and quantities that, by themselves or in combination with the oxycodone and benzodiazepines being supplied to Patient B, should have indicated to the practitioner that the patient was or was at risk of becoming drug dependent; (d) in circumstances in which the prescriptions presented included non-PBS (private) prescriptions, when alprazolam was part of the PBS; and (e) by reason of subparagraphs (a) to (d) above, in circumstances in which the practitioner knew or should reasonably have known that the supplies presented a risk to the patient's health and safety or were at risk of misuse or diversion, contrary to guidelines 1 and 2 of the Dispensing Guidelines. Patient C 4. Between 24 October 2015 and 5 September 2018, the practitioner supplied to Patient C a Schedule 8 drug (oxycodone) dispensed as set out in Annexure C: (a) in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR; (b) when Patient C was being supplied concurrently by the Pharmacy with benzodiazepines (diazepam) dispensed as set out in Annexure C; (c) in a pattern and quantities that, by themselves or in combination with the benzodiazepines being supplied to Patient C, should have indicated to the practitioner that the patient was or was at risk of becoming drug dependent; (d) in circumstances in which the prescriptions presented included non-PBS (private) prescriptions, when oxycodone was part of the PBS; and (e) by reason of subparagraphs (a) to (d) above, in circumstances in which the practitioner knew or should reasonably have known that the supplies presented a risk to the patient's health and safety or were at risk of misuse or diversion, contrary to guidelines 1 and 2 of the Dispensing Guidelines. Patient D 5. Between 23 April 2017 and 17 December 2018, the practitioner supplied to Patient D a Schedule 8 drug (oxycodone) dispensed as set out in Annexure D: (a) in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR; (b) when Patient D was being supplied concurrently by the Pharmacy with benzodiazepines (diazepam) dispensed as set out in Annexure D; (c) in a pattern and quantities that, by themselves or in combination with the benzodiazepines being supplied to Patient D, should have indicated to the practitioner that the patient was or was at risk of becoming drug dependent; (d) in circumstances in which the prescriptions presented included non-PBS (private) prescriptions, when oxycodone was part of the PBS; and (e) by reason of subparagraphs (a) to (d) above, in circumstances in which the practitioner knew or should reasonably have known that the supplies presented a risk to the patient's health and safety or were at risk of misuse or diversion, contrary to guidelines 1 and 2 of the Dispensing Guidelines. Patient E 6. Between 22 April 2017 and 29 August 2018, the practitioner supplied to Patient E a Schedule 8 drug (oxycodone) dispensed as set out in Annexure E: (a) in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR; (b) when Patient E was being supplied concurrently by the Pharmacy with another Schedule 8 drug (fentanyl) and benzodiazepines (diazepam) dispensed as set out in Annexure E; and (c) in a pattern and quantities that, by themselves or in combination with the fentanyl and benzodiazepines being supplied to Patient E, should have indicated to the practitioner that the patient was or was at risk of becoming drug dependent; (d) by reason of subparagraphs (a) to (c) above, in circumstances in which the practitioner knew or should reasonably have known that the supplies presented a risk to the patient's health and safety or were at risk of misuse or diversion, contrary to guidelines 1 and 2 of the Dispensing Guidelines. 7. Between 22 April 2017 and 29 August 2018, the practitioner supplied to Patient E a Schedule 8 drug (fentanyl) dispensed as set out in Annexure E in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR. Patient F 8. Between 23 April 2017 and 17 December 2018, the practitioner supplied to Patient F a Schedule 8 drug (oxycodone) dispensed as set out in Annexure F: (a) in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR; (b) when Patient F was being supplied concurrently by the Pharmacy with benzodiazepines (diazepam, clonazepam, nitrazepam, oxazepam and temazepam) dispensed as set out in Annexure F; (c) in a pattern and quantities that, by themselves or in combination with the benzodiazepines being supplied to Patient F, should have indicated to the practitioner that the patient was or was at risk of becoming drug dependent; (d) in circumstances in which the prescriptions presented included non-PBS (private) prescriptions, when oxycodone was part of the PBS; and (e) by reason of subparagraphs (a) to (d) above, in circumstances in which the practitioner knew or should reasonably have known that the supplies presented a risk to the patient's health and safety or were at risk of misuse or diversion, contrary to guidelines 1 and 2 of the Dispensing Guidelines. Patient G 9. Between 17 March 2017 and 3 May 2018: (a) the practitioner supplied to Patient G a Schedule 8 drug (oxycodone) in quantities dispensed as set out in Annexure G; and (b) those quantities were such that, if used in combination with the quantities of benzodiazepines (diazepam, nitrazepam and oxazepam) being supplied to Patient G concurrently by the Pharmacy as set out in Annexure G, they presented a risk to the patient's health and safety which the practitioner knew or should reasonably have known, contrary to guidelines 1 and 2 of the Dispensing Guidelines. Patient H 10. Between 31 March 2016 and 29 July 2018, the practitioner supplied to Patient H a Schedule 8 drug (oxycodone) dispensed as set out in Annexure H: (a) in quantities that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 109 of the PTGR; (b) In circumstances in which Patient H was evasive when the practitioner questioned him about his reasons for requiring the oxycodone; (c) when Patient H was being supplied concurrently by the Pharmacy with benzodiazepines (diazepam) dispensed as set out in Annexure H; (d) in circumstances in which the prescriptions presented included non-PBS (private) prescriptions, when oxycodone was part of the PBS; and (e) by reason of subparagraphs (a) to (d) above, in circumstances in which the practitioner knew or should reasonably have known that the supplies presented a risk to the patient's health and safety or were at risk of misuse or diversion, contrary to guidelines 1 and 2 of the Dispensing Guidelines. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), (b) or (l) of the National Law in that the practitioner: (i) has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (ii) has contravened a provision of the National Law; or (iii) has engaged in other improper or unethical conduct relating to the practice or purported practice of pharmacy. BACKGROUND TO COMPLAINT TWO This complaint relates to the practitioner's failure to report, or take adequate steps to protect patients from, conduct engaged in by other health practitioners that presented a risk to the patients' health and safety. PARTICULARS OF COMPLAINT TWO Particular 1 is relied upon individually for the purposes of section 139B(1)(b) of the National Law. Particulars 1 and 2 are relied upon individually or in combination for the purposes of section 139B(1)(a) or (l) of the National Law. 1. The practitioner: (a) held or, by reason of the matters in the particulars of complaint one, should have held a reasonable belief that the prescribing practitioners for each of Patients A to H were placing the public at risk of harm by practising medicine in a way that constituted a significant departure from accepted professional standards; and (b) failed to notify the Australian Health Practitioner Regulation Agency (AHPRA) of those matters, as required by section 141(2) 0(2) of the National Law. 2. The practitioner failed to take adequate steps to protect Patients A to H from being placed at risk of harm by the conduct of their prescribing practitioners, contrary to clause 6.3 of the Code of Conduct, including by: (a) asking adequate questions of their prescribing practitioners as to the appropriateness of the quantities of Schedule 8 and Schedule 4D drugs (individually or in combination) being prescribed for those patients; (b) taking adequate steps to raise with the patients or their prescribing practitioners the possibility of referral to a qualified pain or addiction specialist or a drug dependence programme; (c) seeking to confirm that the prescribing practitioner for Patient A had an authority to prescribe oxycodone to Patient A as required by section 28(3) of the PTGA; (d) seeking to confirm that the prescribing practitioner for Patient B had an authority to prescribe alprazolam to Patient B for a period exceeding two months, as required by section 28(2)(a) of the PTGA; and (e) refusing to continue supplying Schedule 8 and Schedule 4D drugs to them, in the circumstances set out in the particulars of complaint one. COMPLAINT THREE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has engaged in: (i) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (ii) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT THREE 1. Complaint one is relied on individually. 2. Complaints one and two are relied on in combination."
The respondent filed a Reply which was signed by him in which he said that he accepted and admitted to each of the complaints and particulars set out in the application in the form as originally filed. During the course of the hearing the respondent informed us that this acceptance and these admissions applied to the terms of the Amended Complaint.
We conducted a hearing during which the applicant tendered extensive documentary evidence. The respondent also provided documentary evidence and gave oral evidence. We shall refer to this evidence as and when necessary, during the course of these reasons for decision.
Because of the admissions made by the respondent it is not necessary that we conduct an investigation into each of the complaints and particulars by reason of section 165H of the National Law: 165H No inquiry required if complaint admitted [NSW] No inquiry need be conducted into a complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal
Notwithstanding these admissions made by the respondent, it is still necessary for us to consider the nature and extent of the misconduct of the respondent as admitted by him in order that we may consider whether he is guilty of unsatisfactory professional conduct or professional misconduct and make appropriate protective orders. This is particularly so because, in the circumstances of these proceedings, we have determined to impose protective orders which are at variance with those proposed by both the applicant and the respondent.
For completeness, we note that because of the gravity of the allegations made against the respondent the applicant bears an enhanced onus of proof of any factual matter adverse to the interest of the respondent. The onus of proof remains the civil standard, namely on the balance of probabilities, but consistent with the jurisprudence established in this Tribunal in dealing with matters of this kind we approach the determination of the proceedings on the basis that as to any such matter we must be "comfortably satisfied" that it has been established on the balance of probabilities.

Factual background

The narration which follows is based on the evidentiary material provided to us. It should be read in conjunction with each of the particulars of each of the complaints which are set out above.
The applicant retained Dr Helen Benson, a pharmacist with many years' experience and expertise who is a lecturer in Pharmacy Practice at UTS. Dr Benson was provided with extensive documentation including, but not limited to, information provided by NSW Police, a Pharmaceutical Regulatory Unit (PRU) investigation report, submissions made by the respondent in response to the PRU complaint to the applicant, and oral evidence given by the respondent during the course of a section 150 hearing. Dr Benson also had available to her a schedule of dispensing prepared by the applicant with respect to each of the patients named in the application. We accept and rely upon the expert opinion of Dr Benson.

Patient A

During the period 14 October 2015 to 15 March 2018 the following medication was dispensed to this patient from the pharmacy at which the respondent was employed: "1410 oxycodone 20 mg 2688 oxycodone 40 mg 2166 oxycodone 80 mg"
Of this medication the following was dispensed personally by the respondent: "588 oxycodone 20 mg 1186 oxycodone 40 mg 812 oxycodone 80 mg."
The bulk of these prescriptions were written by Dr Carlos Tahuil Ochoa, with others prescribed by Drs Christopher Nguyen, Shirjeel Malik, Nasheeth Usmani, and Masum Alam.
The respondent dispensed multiple prescriptions for oxycodone in various strengths to this patient on the same day during this period being 9 March 2017; 6, 13 and 20 April 2017; 14, 20 and 29 June 2017; 18 and 25 July 2017; 1, 8, 15, 19, 26 and 31 August 2017; 14 and 26 September 2017; 9 November 2017; 9 and 21 December 2017. On 33 occasions during this period, the interval between each supply of oxycodone was between 2 - 4 days, including dispensing by the respondent on 9 March 2017; 29 June 2017; 4 and 8 July 2017; 19 August 2017; 18 and 25 January 2018; 1 and 8 March 2018. During this period 53 of the 230 oxycodone prescriptions amounting to 23% of those dispensed to this patient were private prescriptions.
During the period 14 October 2015 to 15 March 2018 this patient was also dispensed a total of 354 diazepam 5 mg. The identity of the dispensing pharmacist was not recorded in the pharmacy records for any of these dispensings.
The pharmacy records for Patient A contained in the Schedule to the Amended Complaint show that the following medication was dispensed by the respondent: 1. on 9 March 2017, 28 oxycodone 20 mg and 28 oxycodone 80 mg each to be taken four times a day 2. on 30 March 2017, 28 oxycodone 40 mg issued on a private prescription with no dosage noted 3. on 6 April 2017, 28 oxycodone 20 mg, 28 oxycodone 40 mg, another 28 oxycodone 40 mg on a private prescription, and 28 oxycodone 80 mg with a notation "1qid dispense q/48th only". All scripts were issued by Dr Ochoa 4. On 13 April 2017, the same quantity of the same drugs with the same notation as those dispensed on 6 April 2017. All scripts were issued by Dr Ochoa 5. on 20 April 2017 the same quantity of the same drugs. The notation was that they were all to be taken 1 or 2 times a day but dispensed at intervals of 2-3 days on Tuesdays, Thursdays and Saturdays. All scripts were issued by Dr Ochoa 6. the same pattern of dispensing for the same quantities of the same drugs on 14, 20 and 29 June 2017; 18, 25 July 2017; 1, 8, 15, 19, 26 and 31 August 2017; 7, 14 and 26 September 2017; 9 November 2017; 9 and 21 December 2017.
We note, as is obvious, that if this patient had taken the dosage of a maximum of two tablets a day of oxycodone totalling 180 mg, each prescription referred to in [15(6)] above would have lasted him 14 days. As is equally obvious, the respondent dispensed quantities of this drug during this period much more frequently than every 14 days. However, as is revealed by the detailed records referred to above, the circumstances in which the respondent dispensed this drug to this patient were more serious.
In the intervening periods the respondent dispensed quantities of the same drugs, but not in the same pattern as described above.
In the intervening periods the same quantities of the same drugs were dispensed to the same patient by other pharmacists in the same pharmacy.
On 2 April 2019 the respondent attended an interview with delegates of the Pharmacy Council of NSW (the Council) and was asked a number of questions concerning the prescriptions dispensed by him for this patient. He conceded that he was aware that the patient was drug dependent. He said that he had never questioned the prescribing doctors about whether they held the necessary authority to prescribe for a drug dependent patient.
When challenged about the quantity of the drugs dispensed to this patient the respondent said that he had put "too much trust" in the prescribing doctors and in particular in Dr Gorman who was a pain specialist practising in the local area for 10 years and whom he regarded as setting "a certain standard that was considered normal." He said that he knew that the persons for whom he had dispensed these drugs of addiction were taking more than the amount prescribed, but when he had challenged Dr Gorman about this, he said the patients had gone back and obtained another script. We note that not one of the scripts dispensed by the respondent which is the subject of these proceedings was issued by Dr Gorman.
In the course of that interview the respondent confirmed that neither of the proprietors of the pharmacy being Ms Patel and Mr Lal had put any pressure on him to dispense the scripts.
The information provided by the respondent in the above interview is to be contrasted with a response that he made to the applicant's investigators on 5 August 2019. Contrary to the information provided to the delegates the respondent said that "The Pharmacy was essentially a dictatorship with Mr Dillan Lal the only dominant personality in the business." He also said: "While I would try to maintain appropriate standards of practice on my days and tried to make my own decisions independent of him, I acknowledge and accept that his influence meant that I was placed in situations that I otherwise would not have been (sic) and I also accept that his dominance over me may have influenced some of my decision-making."
Notwithstanding this condemnation of Mr Lal, it should be noted that the respondent had dispensed inappropriate quantities of drugs of addiction to Patient A prior to Mr Lal becoming a proprietor of the business.
Overall, the respondent said that there were "Extreme Circumstances" that caused his acknowledged misconduct. He described them as "a specialist setting poor standards for many years a GP next door to us that was inappropriate numerous other GPs next door that were unable/unwilling to change the situation and that also prescribed inappropriately a pharmacy owner who actively encouraged the situation and his dominant personality that meant the pharmacy operated as a virtual dictatorship"
In his response the respondent dealt at some length with the circumstances of Patient A. He said that at the time that he was introduced to this patient, he was already attending the pharmacy on a daily basis to receive an initial dose of 560 mg of oxycodone a day which was being prescribed by Dr Devkota, a general practitioner in the medical centre next door to the pharmacy on the advice of Dr Gorman. He said that Dr Devkota informed him that he was trying to stabilise this patient on a dose of 720 mg per day so that he could initiate a staged reduction in the quantity of this drug being taken by the patient. The respondent said that he was not comfortable with this program and that he discussed an "opiate agonist treatment program" with three of the doctors at the centre but was told that they preferred to use such an option as a last resort.
Overall, in his response the respondent said that: "….throughout the 18 months that the staged supply program was run, 12 GPs in the medical centre next door wrote prescriptions for oxycodone that stated specifically on the script a dose somewhere between 640 and 720 mg per day. So in total, 13 doctors agreed with this dose. 12 GPs and the original specialist. … I was of the opinion from the outset that [Patient A] needed to be referred to a specialist in addiction medicine and considered for an opiate treatment program and unfortunately it is clear to me that this is the course of action that the medical centre next to me should have taken. I also realise that it is likely a fact that the surgery next door to me did not hold the required state health authority to prescribe to this patient. It is once again completely incongruous to think that all of these doctors prescribed at this dose without holding this authority. At the time, I felt sure that they must hold such an authority but did not think it was my place to demand evidence of such an authority. I acknowledge that this is something I should have done and will most certainly be doing in the future. Unfortunately I did not have the confidence in my understanding of the situation that would have been required to demand this course of action. … in conclusion, I refuse to believe that 13 doctors and the 4 pharmacists that dispensed in this instance are negligent and uncaring healthcare professionals. I know for a fact that this is not true of myself and I am convinced that it is certainly not true of 2 of the other pharmacists and of many of the other doctors who failed to take the necessary action. Some of whom I hold in very high regard as caring and diligent doctors."
The prescribing and dispensing records for Patient A which are available to us commence on 14 October 2015 when he was prescribed 28 oxycodone 80 mg by Dr Ochoa to be taken twice daily. Thereafter, no pattern emerges of the multiple scripts for oxycodone prescribed by Dr Ochoa until 29 August 2016, when he prescribed on that day one each of 28 oxycodone 20 mg, 40 mg and 80 mg. This pattern was repeated again on 23 November 2016, and thereafter at regular intervals until 9 March 2017, when oxycodone was dispensed by the respondent. These records do not contain any details of the initials of the dispensing pharmacist between 14 October 2015 and 23 February 2017. Therefore, it is not possible for us to know whether the respondent was involved in dispensing oxycodone to this patient during that period. However, there must be considerable doubt about the respondent's assertion that when he first came into contact with Patient A that he was receiving a dose of 560 mg of oxycodone a day. We repeat that there is no evidence of any script having been written by Drs Gorman or Devkota.
In her expert report Dr Benson said that the supply of oxycodone to Patient A was in breach of clause 109 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) which precluded the respondent from supplying oxycodone, being a Schedule 8 drug, in a quantity, or for a purpose, that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances. Even though some of the prescriptions noted that the patient was to be provided with doses four times a day, there is no supporting documentation in the pharmacy records which would corroborate that this occurred.
With regard to the respondent's evidence concerning increased doses Dr Benson referred to the Australian Medicines Handbook (21st ed, 2020) and observed that "it is appropriate to increase doses in the case of opioid tolerance but an increase in dosing frequency should be avoided. As OxyContin is a sustained release formulation it should be dosed twice daily. By increasing the frequency of dosing the patient is at risk of cumulative toxicity which may be fatal."
Dr Benson referred to the concession made by the respondent that he knew that Patient A was opioid dependent. She said that this increased the patient's risk of opioid related harm. Furthermore, the fact that 23% of prescriptions for this patient were prescribed privately "should have raised a red flag to Mr Foster as patients with clear addiction and tolerance issues should be managed with PBS authority prescriptions that are tracked and registered with Medicare to reduce the chance of doctor shopping." She noted that the respondent should have discussed the issue of private prescriptions with Dr Ochoa and that they could result in doctor shopping and patient harm. If Dr Ochoa had failed to respond appropriately this would have been an indication that his practice significantly departed from professional standards, posed a risk of significant harm to the public and should have been reported to the Australian Health Practitioner Regulation Agency (AHPRA) in accordance with the mandatory reporting guidelines, which we note are to be found in section 141(2) of the National Law: 141 Mandatory notifications by health practitioners other than treating practitioners (1) This section applies to a registered health practitioner (the first health practitioner) who, in the course of practising the first health practitioner's profession, forms a reasonable belief that - (a) another registered health practitioner (the second health practitioner) has behaved in a way that constitutes notifiable conduct; or … (2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner's notifiable conduct or the student's impairment. Note - See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law. Section 237(3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred.
Dr Benson expressed the opinion that the supply of oxycodone to Patient A by the respondent demonstrated that his care and treatment fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. She said he should have refused to dispense the oxycodone prescriptions and should have asked that the patient be referred to management of opioid dependence as the patient was at significant risk of harm.
Dr Benson also considered the supply of diazepam to Patient A during the period 14 October 2015 to 15 March 2018 being a total of 354 5 mg tablets. Even though the identity of the pharmacists dispensing this medication was not recorded, this was information which would have been available to the respondent through the records of this patient kept in the pharmacy computer system. Dr Benson said that, even though the dispensing of this quantity of diazepam over that time was not excessive, dispensing it concurrently with high doses of oxycodone increased the risk of central nervous system depression and sedation and increased the risk of harm to the patient.
In her expert report Dr Benson relied upon the provisions of clause 54 of the PTGR: 54 Quantity and purpose of supply to be appropriate An authorised practitioner or pharmacist must not supply any restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty - 20 penalty units or imprisonment for 6 months, or both.
In all the circumstances Dr Benson concluded that the respondent had breached the provisions of this clause in that he had supplied a restricted substance in a quantity that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances.

Patient B

The pharmacy records show that during the period 8 June 2016 to 29 April 2018 this patient was dispensed a total of 1162 oxycodone 80 mg. The respondent dispensed 224 of these tablets. On six occasions during this period the interval between each 14 day's supply of oxycodone was between 2 and 5 days including 20 May 2017 and 5 August 2017 when the respondent was the dispensing pharmacist. Over this time 3 of the 38 prescriptions were private prescriptions.
In her report Dr Benson noted that this patient was dispensed 112 tablets on 1 April 2017 which should have lasted him until 26 May 2017. In fact, he collected a further 28 tablets on 20 April 2017, 3, 17 and 20 May 2017. During this two-month period this patient received a double supply of OxyContin. The respondent was the dispensing pharmacist on two occasions during this period and was therefore involved in this oversupply. It was the opinion of Dr Benson that the respondent should have refused to dispense the prescriptions that were being collected early and should have asked that the patient be referred for management of opioid dependence as he was at significant risk of harm. Dr Benson concluded that the supply of this drug to this patient by the respondent meant that his care and treatment fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience.
Dr Benson further noted that during the period 8 June 2016 to 29 April 2018 this patient was dispensed a total of 1368 alprazolam 2 mg. The respondent was personally responsible for dispensing 200 of these tablets. 93% of the 29 prescriptions were private.
On each occasion this patient was dispensed 50 tablets which should have provided him with a supply of 25 days. On three of the four occasions that he dispensed this drug during this period the respondent provided the patient with the drugs at shorter intervals than therapeutically indicated, namely 3 days, 18 days and 12 days respectively. There was therefore an oversupply of 21 days' tablets.
Dr Benson noted that the prescribing medical practitioner, Dr Ochoa, was required to hold an authority from the NSW Ministry of Health to prescribe this drug for a drug-dependent person or a non-drug dependent person who was prescribed continuously for more than two months. She found no evidence that the notification of that authority was referred to in the pharmacy records.
Furthermore, Dr Benson noted that the combination of alprazolam and oxycodone suggested "medication dependence." She thought that the patient's pattern of medication use should have indicated referral to a qualified pain or addiction specialist, and that the respondent should have raised these concerns with the treating medical practitioner. In failing to do so his conduct fell below the standard reasonably required of a practitioner with equivalent training or experience.
In providing information concerning this patient to the applicant and other authorities the respondent said: 1. that his conduct was "unacceptable and I acknowledge that I dispensed several times this patient in circumstances that were inappropriate 2. in early to mid-2017 he was approached in the pharmacy directly by Dr Ochoa and the patient and informed that the patient was required to travel and required an extra supply of medication 3. by early 2017 it was apparent that this was happening "too often" and he declined to dispense the medication except at appropriate intervals. 4. thereafter the patient did not approach him to fill any prescriptions.

Patient C

During the period 24 October 2015 to 5 September 2018 this patient was dispensed a total of 28 oxycodone 30 mg, 420 oxycodone 40 mg and 2478 oxycodone 80 mg. The respondent was personally responsible for dispensing 168 oxycodone 80 mg to this patient.
On 31 occasions during this period the interval between each supply of 28 tablets of oxycodone with one tablet to be taken twice a day was between 3 and 9 days including tablets dispensed by the respondent on 14 June 2017, 26 October 2017, 9 December 2017, 15 and 29 March 2018.
Ten of the 106 prescriptions dispensed in the pharmacy over this period were private prescriptions.
On 15 March 2018 the respondent dispensed a Pharmaceutical Benefits Scheme (PBS) prescription for this patient written by Dr Ochoa for 28 oxycodone 80 mg. On the same day a private prescription for 28 oxycodone 80 mg was dispensed through the pharmacy. There is no notation of the name of the dispensing pharmacist. The patient was dispensed a further 28 oxycodone 80 mg by another pharmacist in the same pharmacy on 22 March 2018. The respondent dispensed a further 28 oxycodone 80 mg to this patient on 29 March 2018. All prescriptions were written by Dr Ochoa and each provided for a dosage of one tablet twice a day. When the respondent dispensed the prescription on 29 March 2018 he should have been aware of the previous dates upon which this medication had been dispensed through the pharmacy, at least as far back as 15 March 2018. When the respondent came to dispense 28 of these tablets on 29 March 2018 he should have appreciated that the patient had already received 70 tablets since 15 March 2018, enough to have lasted him 35 days.
In all the circumstances Dr Benson said that the respondent's care and treatment of this patient fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience.
Dr Benson also referred to the dispensing through the pharmacy of diazepam to this patient concurrently with oxycodone, as conceded by the respondent. Dr Benson noted that this combination has "additive CNS depressive and sedative effects and are dangerous in overdose", that the respondent as an experienced pharmacist should have known the potential danger that this combination of medications posed to this patient and that he should have raised and documented these concerns. In failing to do so his conduct fell below the standard reasonably required of a practitioner with equivalent training or experience.

Patient D

During the period 23 April 2017 to 17 December 2018 this patient was dispensed through the pharmacy a total of 100 oxycodone 5 mg, 140 oxycodone 10 mg, 28 oxycodone 15 mg and 5133 oxycodone 20 mg. The respondent was personally responsible for dispensing 548 oxycodone 20 mg.
On 36 occasions during this period the interval between each supply of 20 mg tablets was between 3 - 5 days including dispensing by the respondent on 11, 17 and 20 March 2018 and 23 September 2018. On 45 occasions the interval between each supply of either 20 mg capsules/tablets or 10 mg or 5 mg capsules was only three days including dispensing by the respondent on 24 February 2018, 17 and 20 March 2018.
Of the 186 oxycodone prescriptions dispensed during this period, 180 were private prescriptions.
In her report Dr Benson noted that the dispensing history for this patient showed increasing doses of Oxynorm and OxyContin over time "which should have alerted [the respondent] that [the patient] was at risk of dependence and tolerance and also an increased risk of misuse or diversion of his medication." She noted that OxyContin is dosed twice daily as it is a modified release formulation, but the patient was prescribed an increasing frequency ending at four times a day dosing. She noted that it was appropriate to increase doses in the case of opioid tolerance but an increase in dosing frequency should be avoided. She said "As OxyContin is a sustained release formulation it should be dosed twice-daily. By increasing the frequency of dosing the patient is at risk of cumulative toxicity which may be fatal."
Dr Benson said that the high incidence of private prescriptions should have raised a red flag to the respondent because patients with clear addiction and tolerance issues should be managed with PBS authority prescriptions that are tracked and registered with Medicare to reduce the chance of doctor shopping.
It was the opinion of Dr Benson that the supply of oxycodone to this patient by the respondent was indicative that his care and treatment fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience. She said he should have refused to dispense the oxycodone prescriptions and should have asked that the patient be referred to management of opioid dependence as the patient was at significant risk of harm. Furthermore, the respondent should have discussed his concerns about the use of private prescriptions with the prescribing medical practitioner, Dr Shirjeel Malik. If Dr Malik had failed to respond appropriately, this would have indicated that his practice significantly departed from professional standards and posed a risk of significant harm to the public. Dr Benson said that in those circumstances the respondent should have reported Dr Malik to AHPRA under the mandatory reporting provisions of the National Law previously referred to.
Dr Benson also referred to the dispensing through the pharmacy of diazepam to this patient concurrently with oxycodone, as conceded by the respondent. All of the 10 prescriptions were private. Dr Benson noted that this combination has "additive CNS depressive and sedative effects and are dangerous in overdose", that the respondent as an experienced pharmacist should have known the potential danger that this combination of these medications posed to this patient and should have raised and documented these concerns. In failing to do so his conduct fell below the standard reasonably required of a practitioner with equivalent training or experience.

Patient E

During the period 22 April 2017 to 29 August 2018 this patient was dispensed a total of 2260 oxycodone 5 mg. The respondent was personally responsible for dispensing 240 of these tablets. On four occasions during this period the interval between each supply of oxycodone was only one day, including dispensing by the respondent on 3 August 2017. On another 27 occasions the interval between each supply was only two days, including dispensing by the respondent on 10 August 2017, 10 September 2017, and 26 December 2017.
Dr Benson noted that the dispensing history for this patient prescribed 5 mg of oxycodone four times a day increasing to 10 mg six times a day by July 2018. She thought that the increasing oxycodone doses over time might indicate that the patient was developing tolerance and dependence to oxycodone or alternatively that the medication was being diverted or misused. Dr Benson found no evidence that the respondent had questioned this increasing use or had taken steps to ensure the safety of the patient or the community, in this latter case due to the risk of diversion and misuse.
Dr Benson concluded that in relation to the supply of oxycodone to this patient by the respondent his care and treatment fell significantly below the standard reasonably expected of a practitioner with equivalent training or experience.
This patient was also dispensed a total of 110 fentanyl 75 mcg/hr patches through the pharmacy during the same period. Of this the respondent personally dispensed this drug on three occasions for a total of 15 patches.
Dr Benson noted that each supply of five fentanyl patches should have been sufficient to last the patient 15 days. By supplying the patches after just six days on 3 August 2017 there was a risk that the excess patches could be misused or diverted posing a risk to the community. She said that this supply by the respondent demonstrated that his care and treatment of the patient in this regard fell below the standard reasonably expected of a practitioner of equivalent training or experience.
During the same period this patient was dispensed a total of 1100 diazepam 5 mg and 100 diazepam 2 mg. None of the dispensing records disclose the name of the dispensing pharmacist. Even though the respondent may not have dispensed this medication, he should have been aware of it through the pharmacy records and known of the combination of fentanyl, oxycodone and diazepam creating additional CNS depressive and sedative effects. Dr Benson thought that the pattern of this patient's medication collection suggested medication dependence. The respondent should have raised these matters with the patient and documented his concerns. His failure to do so indicated that his conduct fell below the standard reasonably required of a practitioner with equivalent training or experience.

Respondent's response to applicant re patients C, D and E

In responding to the applicant's investigators, the respondent said that he understood that these patients had been on relatively high dose of opiates for an extended period of time, and all had long-standing pain issues. They had only become regular patients of the pharmacy after the new owners had taken over. He said that he had made enquiries for dispensing to them "as to their past history and the reasons as to why they are on such high doses."
Significantly, the respondent said: "I have seen many patients in my 20 plus years of pharmacy prescribed the kind of opiate doses that these three patients were on. I was certainly aware of the current trend to limit dose escalation and minimise opiate doses wherever possible. However, due to the example laid down by Dr David Gorman, it did not seem particularly unusual to me that they were prescribed these doses in the past nor did it seem unusual to me that they were unable/unwilling to reduce their doses."
The respondent concluded that in retrospect he should have done more with respect to the inappropriate dispensing to these patients.

Patient F

During the period 19 February 2016 to 31 October 2018 this patient was dispensed through the pharmacy a total of 7064 oxycodone 5 mg and 1568 oxycodone 40 mg plus naloxone 20 mg. The respondent personally dispensed 840 oxycodone 5 mg and 280 oxycodone 40 mg plus naloxone 20 mg. Of the 78 oxycodone prescriptions, 30 were private. Of the 58 oxycodone plus naloxone prescriptions, 31 were private.
In submissions made to the Council the respondent has acknowledged that this patient was known to be an opioid and benzodiazepine-dependent person under the care of a pain specialist whom he nominated as Dr Gorman. Dr Benson noted that on 2 March 2017 Dr Gorman prescribed 360 oxycodone 5 mg tablets to this patient which were dispensed on 2, 9 and 17 March 2017. Dr Benson said that the fact that these prescriptions were private and dated on the same day should have raised a red flag with the respondent. This pattern was repeated on 23 July 2017 when Dr Gorman again prescribed 360 oxycodone 5 mg which were collected from the pharmacy on three occasions. This pattern was also repeated with respect to the other prescriptions issued by Dr Gorman for oxycodone plus naloxone all of which were private.
Dr Benson said that the respondent had a duty to question and if deemed appropriate report the prescribing practices of Dr Gorman. The fact that he prescribed large quantities of oxycodone on multiple private prescriptions on the same day was a clear breach of prescribing practices and the respondent was required by clause 6.3 of the Pharmacy Board of Australia, "Code of Conduct" (March 2014) to take steps to protect patients from being placed at risk of harm posed by the conduct of a health practitioner. 6.3 Practitioner performance The welfare of patients or clients may be put at risk if a practitioner is performing poorly. If there is a risk, good practice involves: a) complying with statutory reporting requirements, including those under the National Law b) recognising and taking steps to minimise the risks of fatigue, including complying with relevant state and territory occupational health and safety legislation c) if a practitioner knows or suspects that they have a health condition that could adversely affect judgement or performance, following the guidance in Section 9.2 Practitioner health d) taking steps to protect patients or clients from being placed at risk of harm posed by a colleague's conduct, practice or ill health e) taking appropriate steps to assist a colleague to receive help if there are concerns about the colleague's performance or fitness to practise, and f) if a practitioner is not sure what to do, seeking advice from an experienced colleague, the employer/s, practitioner health advisory services, professional indemnity insurers, the National Boards or a professional organisation.
In failing to do so Dr Benson said that the respondent's conduct fell significantly below the standard reasonably required of a practitioner with equivalent training or experience. He should have been alerted to the "red flags" which were present in the circumstances of this patient.
This patient was also dispensed during the same period 2600 diazepam 5 mg, 600 clonazepam 0.5 mg, 25 oxazepam 15 mg, and 25 temazepam 10 mg. None of the dispensing records disclose the name of the dispensing pharmacist.
Dr Benson noted that the combination of oxycodone and these benzodiazepine drugs had additive CNS depressive and sedative effects and was not therapeutically appropriate. The dispensing of these drugs should have been tightly controlled by insisting that the patient see only one medical practitioner who issued only PBS prescriptions and that the patient be dosed using a staged supply or other similar supervised arrangements. In that the respondent would have been aware of the concurrent supply of multiple benzodiazepine drugs in addition to oxycodone, Dr Benson expressed the opinion that the respondent's conduct fell significantly below the standard expected of a practitioner with equivalent training or experience.
In his explanation provided to the applicant's investigators the respondent said that this patient had been a patient of the pharmacy "on and off" for a decade. He said that Dr Gorman had continued to treat the patient in the same manner over this period, and Dr Ochoa continued the same regime after he took over the care of the patient. The respondent said: "Over the years I recall many a conversation aimed at encouraging [patient F] to reduce her dose but she did not have the motivation or desire to attempt this and made that fact very clear to me. At the time, I considered my actions to be appropriate. Over the course of this investigation it has become clear to me that Dr David Gorman was not operating to modern standards."
The respondent then said that he now realised that he should be more proactive in following appropriate standards. He said he was influenced "very heavily" by Dr Gorman's practice.

Patient G

During the period 17 March 2017 to 3 May 2018 this patient was dispensed from the pharmacy a total of 1640 oxycodone 5 mg, 40 oxycodone 20 mg and 168 oxycodone 40 mg. The respondent personally dispensed 360 oxycodone 5 mg and 20 oxycodone 20 mg. All of the prescriptions for this patient were issued by Dr Ben Balzer. No details of the dosage were entered into the pharmacy records.
During this period this patient was also dispensed from the pharmacy a total of 150 diazepam 5 mg, 200 nitrazepam 5 mg and 50 oxazepam 30 mg. It was the opinion of Dr Benson that the concurrent supply of these drugs with oxycodone placed this patient at risk of additive CNS depression and sedation and that the combination of multiple benzodiazepine medications was not recommended and at best represented poor prescribing practice. She said that as one of the pharmacists responsible for dispensing oxycodone to this patient the respondent had a responsibility to address and document his response to this inappropriate prescribing. As such his conduct fell significantly below the standard expected of a practitioner with equivalent training or experience.
In his response to the applicant's investigators the respondent said that "in retrospect and knowing what I now know, I would be more concerned about the prescribing of multiple benzodiazepines, especially when dispensed close together and the regular use over an extended period of time. … I believe that benzodiazepines have been poorly prescribed by many practitioners for decades and as a result many pharmacists have come to accept prescribing practices that are not acceptable. I have now drawn a line in the sand as to what I will accept."

Patient H

During the period 31 March 2016 to 29 July 2018 this patient was dispensed through the pharmacy a total of 11,260 oxycodone 5 mg. The respondent personally dispensed 360 of these tablets.
Multiple private prescriptions of 40 5 mg tablets of up to six at a time were regularly dispensed to this patient on the same day throughout this period, including dispensing by the respondent on 30 December 2017. On 43 occasions during this period the interval between each supply of 40 5 mg tablets of oxycodone was between 1 and 5 days, including dispensing by the respondent on 24 March 2018. Of the 283 oxycodone prescriptions dispensed to this patient during this period 280 were private prescriptions. All of these prescriptions were written by Dr Ochoa.
It was the opinion of Dr Benson that this quantity of oxycodone exceeded the quantity that accorded with the recognised therapeutic standard of what was appropriate in the circumstances. She said that the respondent should have recognised this quantity and frequency of prescribing was inappropriate and it should have been reported to AHPRA. In addition, she said that the respondent should have refused to dispense ongoing supply and retained the prescriptions as evidence. The fact that 99% of these prescriptions were private should have further confirmed the inappropriate nature of this prescribing. She said that the respondent's conduct fell significantly below the standard reasonably required of a practitioner with equivalent training or experience.
During the same period a total of 200 diazepam 5 mg were also dispensed to this patient from the pharmacy. Forty-six of the 54 prescriptions were private prescriptions, although there is no evidence that any of them were dispensed by the respondent. However, it was the opinion of Dr Benson that the conduct of the respondent fell significantly below the standard reasonably required of a practitioner with equivalent training or experience in dispensing very high quantities of oxycodone knowing that diazepam was also being supplied to this patient, because it was neither safe nor appropriate to do so.
In his explanation provided to the applicant's investigators the respondent conceded that "this is an outrageous history for which there can be no justification." He said that it was important to note that this person did not become a patient of the pharmacy until "the new owners took over in 2016." He said that he was unhappy with the prescribing regime for this patient and was not aware that he was also taking diazepam. He said "I did not dispense medication for him at any time. Nonetheless, I accept that I should have more closely inspected his medication history and been aware of this fact."
With respect to the second occasion on which he had dispensed Endone to this patient he asked to meet with Dr Ochoa who informed him that the patient was under the care of a pain specialist and needed short acting medication because the long-acting version was not assisting him. The respondent said, "I expressed my lack of understanding of the situation and opposition to this course of treatment to both the doctor and patient but regrettably did not take further action." The respondent said that he believed "in retrospect" that he was intimidated by the fact that the treating general practitioner in "consultation" with a specialist supported this treatment and the owners of the pharmacy believed that this was an acceptable regime of treatment.
The respondent also said: "in 20 plus years of pharmacy I had not come across a similar situation and have never in my previous years of practice had a patient that I thought maybe selling to the black-market. I was, in retrospect ill-equipped to deal with what transpired"

The respondent's registration status

Delegates of the Council conducted an enquiry into the respondent's conduct under section 150 of the National Law on 2 April 2019. The respondent was present and provided certain information to the delegates.
On 23 April 2019 the Council concluded that it was not satisfied that the respondent's standard of practice, knowledge and understanding was of a sufficient standard to ensure the protection of the health and safety of the public, and imposed conditions on his registration. In general terms the respondent was precluded from working in a pharmacy as the pharmacist in charge, he was prohibited from possessing, supplying, manufacturing or dispensing any drug of addiction, he was required to consent to an order being made under the PTGR to prohibit him from possessing, supplying, manufacturing or dispensing any Schedule 8 drug and was required to advise the Council of any change of employment.
Subsequently the respondent applied to the Council for the removal of the conditions imposed on his registration. A hearing was convened before delegates on 7 July 2020 who issued written reasons for decision on 29 July 2020, in which they determined to remove those conditions. Those reasons formed a significant basis for the respondent's submissions in these proceedings that he should be permitted to continue to practise as a pharmacist notwithstanding his concessions that he was guilty of unsatisfactory professional conduct and professional misconduct for the purposes of the National Law. They also formed one of the bases of the applicant's support for the submissions. Accordingly, it is appropriate that we make reference to them.
In their reasons the delegates noted that the conditions had originally been imposed for the protection of the public and in the public interest because it had been concluded that the respondent: "had demonstrated inadequate knowledge, understanding, care and judgement in supplying potent medications to patients in extremely large quantities and at inappropriately short intervals. As a consequence…. his practice was below the standard expected of a pharmacist of his level of experience….he lacked the understanding of his personal responsibility to question presented prescriptions…..his inappropriate deferral to prescribers to be considered to be experts and specialists, and his failure to take appropriate actions even when he felt uneasy about the appropriateness of the prescription."
Significantly, the delegates noted that the respondent had described the reasons behind "the key deficiencies in his past practice" which they summarised in the following terms: "a he was previously not sufficiently knowledgeable about the legislation, particularly the poisons legislation b he was not following clinical guidelines in relation to pain management because he was not fully conversant with them and rarely consulted them c he possessed a number of misconception and was making assumptions which resulted in him not challenging the actions of other health care professionals, particularly the prescribers associated with the PRU complaint; further, he lacked the strength of personality to challenge the status quo, and as a consequence, his professional judgement was impaired and his actions were not indicative of the application of common sense."
In their reasons the delegates noted additional significant information which had been given to them by the respondent under the heading "Clinical guidelines on pain management." They noted that the respondent had informed them that he had previously held "a large number of misconceptions about pain management and the place of opioids therein". Included within these previous misconceptions as described by the respondent to the delegates was his failure to understand that his primary role was to ensure that patients receive drugs of addiction from one prescriber or medical practice only, failure to understand that he had a right to question if a prescriber held a relevant authority for long-term prescription of certain drugs of addiction to a drug dependent person and his failure to recognise that high doses of opioids were inappropriate even if prescribed by an acknowledged pain management expert. In addition, the respondent said that he had formerly been unaware that it was important to enquire about patients being referred to pain specialists, of the existence of a prescription shopping hotline and the appropriateness to consult with his professional indemnity insurer for advice. The respondent acknowledged to the delegates that he was not formally aware of current guidelines for the use of opioids in pain management and did not take appropriate action even though, in the case of three of his patients, alarm bells had rung for him. He did not realise that the prescribing practices of Dr Gorman were "totally incorrect."
In their reasons the delegates said that they were satisfied that the respondent had demonstrated to them a knowledge and understanding of the relevant poisons legislation, that he possessed "a sound knowledge and understanding of the clinical guidelines for pain management", and that he was now capable of exercising appropriate professional judgement, especially as he had engaged a former colleague as a mentor. These were the bases upon which they determined that the respondent did not pose a risk to the health and safety of the public and the public interest did not necessitate practice conditions remaining on his registration.
We shall later return to the reasons of the delegates because they raise serious concerns about the knowledge and understanding of the respondent concerning his professional responsibilities in circumstances where he had been practising as a pharmacist for almost 19 years when these difficulties were encountered. Furthermore, they refer to an admission by the respondent that he lacked the strength of personality necessary to perform his role as a pharmacist appropriately and that his professional judgement was thereby impaired.
We note, for present purposes, that the task being undertaken by the delegates in those proceedings under section 150A of the National Law is different from the task which we are required to undertake in these proceedings. The provisions of section 150A must be considered against the background of the provisions of section 150 of the National Law. We set out those provisions: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must - (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who - (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
The power to suspend registration or impose conditions on registration under section 150 may be exercised whether or not a complaint has been made concerning a practitioner. It is most usually exercised whilst a complaint is being considered, as was the case in these proceedings. The sole determinant is satisfaction that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest. It was the decision to impose conditions on the respondent's registration by reason of the provisions of section 150 that was reviewed by the delegates under section 150A. 150A Review of certain decisions [NSW] (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to - (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration. (2) On receiving an application for review, a Council - (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexatious; or (b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant. (3) Following its reconsideration of a decision, a Council may - (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision.
Accordingly, the decision of the delegates is confined to a reconsideration of the circumstances applying in connection with the decision made under section 150, and as to whether there has been a change in the respondent's circumstances that justifies the variation or setting aside of the decision.
The proceedings before us are constituted by formal complaints made by the applicant that the respondent is guilty of misconduct as alleged. Whilst the overall factual circumstances may cover the same or similar ground, our functions and powers are different, and the orders which we are empowered to make have a different basis and serve a different, although overlapping, purpose. We shall refer to these matters later in these reasons.

Factual findings with respect to each of the complaints

Based on the factual findings which we have made with respect to the circumstances of each of the patients set out above and upon the expert report of Dr Benson and having regard to the admissions made by the respondent we are comfortably satisfied to the required standard that all of the factual matters referred to in Complaint One have been established. We are also comfortably satisfied to the required standard that the factual matters referred to in Complaint Two have been established having regard to the same matters.

Is the respondent guilty of unsatisfactory professional conduct?

Unsatisfactory professional conduct is defined in the National Law in section 139B which we reproduce in part: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Based on the opinion of Dr Benson, and acknowledging the admissions made by the respondent, we have no hesitation in finding that the respondent is guilty of unsatisfactory professional conduct with respect to each of the patients whose circumstances are the subject of Complaints One and Two. His knowledge, skill and judgment and care exercised in the practice of the pharmacy was significantly below the standard reasonably expected of a pharmacist of an equivalent level of training and almost 19 years' experience.

Is the respondent guilty of professional misconduct?

Complaint Three asserts that the respondent is guilty of professional misconduct. That expression is defined in section 139E of the National Law in the following terms: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The discriminating factor which transforms unsatisfactory professional conduct into professional misconduct is that it is sufficiently serious to justify suspension or cancellation of registration. Suspension or cancellation of registration is part of the armoury of protective orders that this Tribunal may make consequent upon a finding of professional misconduct. The orders which can be made must be protective in nature, having regard to the health and safety of the public. The underlying principles have been succinctly summarised in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. Meagher JA (Basten and Emmett JJA agreeing) said at [35] to [37]: "[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [36] In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: 'The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted.' [37] In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): 'It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest.'"
Some assistance in exercising the value judgment which is inherent in determining whether unsatisfactory professional conduct is sufficiently serious to constitute professional misconduct is provided in the judgment of Basten JA (Leeming JA agreeing) in the NSW Court of Appeal in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct..."
We proceed on the basis that it is appropriate to consider all of the findings that we have made in the aggregate. In so stating we should not be taken to have determined that there are no individual findings which in themselves would justify a determination that the respondent is guilty of professional misconduct. Indeed, the respondent's misconduct with respect to each of the patients as particularised against him is of a most serious nature.
Comments made by this Tribunal in Health Care Complaints Commission v Elliott [2018] NSWCATOD 47 concerning the professional responsibilities of pharmacists, including their interaction with medical practitioners, are relevant to our consideration, albeit that there are some factual differences to the circumstances of these proceedings. At [54] to [57] the Tribunal said: "[54] Mr Elliott was dispensing considerable quantities of Sch 8 drugs over a lengthy period, but especially in 2013 and 2014. In our view, in those circumstances any trained pharmacist operating at the general standard required of his or her profession would have become highly attuned and attentive to the potential risks of dispensing such quantities of drugs. In particular, it would be reasonable to expect an experienced pharmacist to be alert to the possibility - perhaps even the probability - that some of the patients were likely to be opioid-dependent and therefore more likely than other patients to simulate symptoms in order to obtain prescribed drugs, to involve themselves in "doctor shopping" or to misuse drugs. [55] Pharmacists are gatekeepers with responsibility, among other things, for dispensing drugs of addiction. To assist them in that serious task, regulations and guidelines are imposed so that the very real risks involved in dispensing drugs of addiction can be managed and mitigated. As the National Law emphasises, the protection of the public is paramount. And some members of the public, such as drug dependent patients, need protection from themselves. Medical practitioners and pharmacists share significant responsibility and are required to exercise their individual clinical judgments to ensure that individual consumers and the public are protected. The more experienced a pharmacist becomes, the better that practitioner's judgment might be expected to be. A pharmacist's failure to be attentive, or sufficiently attentive to the self-evident risks of dispensing Sch 8 drugs, undercuts the protective structure which the regulations and guidelines are intended to erect for the benefit of individual patients and the community as a whole. [56] When compounded by a pharmacist's effective failure to exercise clinical judgment by, for example, not raising appropriate concerns with prescribing doctors (who may themselves be falling short of professional standards), the protective structure is rendered virtually useless. This would reduce a pharmacy almost to a supermarket level where customers can help themselves to whatever they want, no questions asked. In this case, even his own expert, Mr Regoli, considered that Mr Elliott had fallen significantly short of the standards required. [57] Although failure to comply with regulations and guidelines might well evidence a fall from appropriate standards, professional standards in the health professions are not to be measured merely by compliance. The ultimate benchmark against which the professional conduct of health practitioners will be measured is the protection of the public. If the relevant conduct of a health professional fails to protect the public, and falls significantly short of the standards required to do so, or poses a real risk to the health and safety of the public, it might well justify suspension or deregistration because the community ought not be exposed to the risk inherent in such failures. Whether such a step is taken as a consequence will depend on the circumstances..."
For present purposes we note that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our current task is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter, we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other members of the pharmacy profession.
As has been endorsed often by this Tribunal, a health practitioner who prescribes or handles drugs of addiction recklessly and contrary to the law engages in conduct which constitutes professional misconduct. In Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep), Hope JA (Reynolds and Hutley JJA agreeing) said: "In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner"
There is no reason why these comments made in Spicer should not apply equally in the case of pharmacists who are also given the privilege of supplying restricted drugs to the public, including drugs of addiction in response to a prescription issued properly and appropriately, and subject to the duty of care which is inherent in the exercise of their profession. Indeed, pharmacists have been described in this Tribunal as being representative of the "gateway" to access to these drugs by the public. As such there are very good policy reasons why the responsibility of pharmacists extends beyond the mere filling of prescriptions. As will have been seen from our reference to some of the various provisions of the PTGR, pharmacists are required by law to make an assessment of the authenticity of a prescription for these drugs, the appropriateness of those drugs for use by patients especially having regard to the quantity and frequency of their use, and the period over which the drugs are to be used. There are also extensive requirements to ensure that these drugs are secured and that appropriate records are kept so as to ensure that the receipt and dispersal of these drugs are recorded by pharmacists. It is not necessary to refer to these provisions in detail. They are contained within Division 4 of Part 4 of the PTGR, and especially Subdivision 1.
We have described in some detail the regulated quantities of the drugs of addiction dispensed by the respondent to each of the patients referred to in the Complaints, as well as the overall circumstances pertaining to those patients. We have also set out the observations of Dr Benson, the expert retained by the applicant with respect to the conduct of the respondent. We emphasise that not only did the respondent engage in the inappropriate dispensing of these dangerous drugs of addiction to these patients, but also, he was aware or should have been aware of the prescribing regime of these patients and their medical conditions. Our conclusions which follow are based on all of these matters. There is no benefit in our attempting to summarise these matters, because an appropriate assessment of the respondent's conduct requires attention to the detailed factual circumstances which we have previously described.
We add for completeness that from time to time the respondent was the pharmacist in charge at the pharmacy, that he was an experienced pharmacist and that his conduct extended to a number of patients over an extended period of time and substantially pertained to the inappropriate dispensing of dangerous drugs of addiction.
We assess the conduct of the respondent as we have described it as constituting a flagrant breach of his legal, professional and ethical obligations as a practising pharmacist. His conduct is clearly incompatible with the practice of his profession at a standard which can reasonably be expected by the public. This rendered him unfit to practise as a pharmacist and as such would justify the cancellation of his registration. It follows that we find that the respondent is guilty of professional misconduct, as he properly conceded.

Appropriate protective orders

It is now necessary to determine what protective orders should be made consequent upon the finding of professional misconduct which we have made. We have previously set out the principles which are to be applied in framing appropriate protective orders. Most significantly, it is necessary to protect the interests of the public and in the case of a pharmacist the interests of current and potential patients. In addition, protective orders are appropriate to deter the respondent and other pharmacists from engaging in the same or similar conduct. Finally, it is necessary to uphold public confidence in the high standards and integrity of the pharmacy profession.
The range of available protective orders are contained in section 149A(1) of the National Law: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
Because of the finding of professional misconduct which we have made we are also empowered by section 149C of the National Law to cancel or suspend the respondent's registration. Section 149C provides in part: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - …. (b) the practitioner is guilty of professional misconduct; or ….
In considering appropriate protective orders we are required to determine whether the respondent can safely practise as a pharmacist. We emphasise that it is no part of this consideration to punish the respondent for his misconduct, although, as is well acknowledged, protective orders may have a punitive effect.

The respondent's explanations

The respondent has provided a number of statements containing explanations for his conduct and gave oral evidence in these proceedings.
In the course of his various explanations concerning his conduct given to delegates of the Council, investigators retained by the applicant and to this Tribunal, the respondent proffered the following, which we summarise in the following terms: "I have seen many patients in my 20 plus years of pharmacy prescribed the kind of opiate doses that these three patients were on. I was certainly aware of the current trend to limit dose escalation and minimise opiate doses wherever possible. However, due to the example laid down by Dr David Gorman, it did not seem particularly unusual to me that they are prescribed these doses in the past nor did it seem unusual to me that they were unable/unwilling to reduce their doses. in 20 plus years of pharmacy I had not come across a similar situation and have never in my previous years of practice have a patient that I thought maybe selling to the black-market. I was, in retrospect ill-equipped to deal with what transpired"
We repeat explanations provided by the respondent to the delegates of the Council, and noted by them which we have previously set out: "86 Significantly, the delegates noted that the respondent had described the reasons behind "the key deficiencies in his past practice" which they summarised in the following terms a he was previously not sufficiently knowledgeable about the legislation, particularly the poisons legislation b he was not following clinical guidelines in relation to pain management because he was not fully conversant with them and rarely consulted them c he possessed a number of misconception and was making assumptions which resulted in him not challenging the actions of other health care professionals, particularly the prescribers associated with the PRU complaint; further, he lacked the strength of personality to challenge the status quo, and as a consequence, his professional judgement was impaired and his actions were not indicative of the application of common sense. 87 In their reasons the delegates noted additional significant information which had been given to them by the respondent under the heading "Clinical guidelines on pain management." They noted that the respondent had informed them that he had previously held "a large number of misconceptions about pain management and the place of opioids therein". Included within these previous misconceptions as described by the respondent to the delegates was his failure to understand that his primary role was to ensure that patients receive drugs of addiction from one prescriber or medical practice only, failure to understand that he had a right to question if a prescriber held a relevant authority for long-term prescription of certain drugs of addiction to a drug dependent person and his failure to recognise that high doses of opioids are inappropriate even if prescribed by an acknowledged pain management expert. In addition, the respondent said that he had formerly been unaware that it was important to enquire about patients being referred to pain specialists, of the existence of a prescription shopping hotline and the appropriateness to consult with his professional indemnity insurer for advice. The respondent acknowledged to the delegates that he was not formally aware of current guidelines for the use of opioids in pain management and did not take appropriate action even though in the case of three of his patients, alarm bells had rung for him. He did not realise that the prescribing practices of Dr Gorman were "totally incorrect." ….. 89…Furthermore, they refer to an admission by the respondent that he lacked the strength of personality necessary to perform his role as a professional pharmacist appropriately and that his professional judgement was thereby impaired."
The respondent also provided a "Final Position Statement" dated September 2021 for the purpose of these proceedings. He fully accepted that he was guilty of professional misconduct, and asserted that he had "clearly demonstrated insight, understanding and remorse and a willingness to go to extreme levels to ensure that I meet the standards that are expected." He said that he regarded himself as "…essentially a person of good character and a caring, diligent pharmacist of integrity. I believe the great majority of my career can be seen in this light."
Significantly, the respondent said that his misconduct was due to "an extreme set of circumstances" which he was not equipped to deal with correctly at the time. He also said that "there have been serious systemic issues within pharmacy and medicine that have existed for a very long time with regards to the supply of these medications." The respondent gave as examples a pain specialist and a medical centre next door to the pharmacy who had operated "well outside what I now considered to be acceptable practice standards for Drugs of Addiction." He also referred to a general practitioner within the medical centre, whom we understand to be Dr Ochoa, who "escalated the poor prescribing of these medications to a new level again." The respondent also ascribed some of these problems to one of the pharmacy owners who did not set appropriate boundaries with the patients and encouraged misuse of these medications, and to the "power struggle" with the pharmacy owner. Finally, the respondent described the generally poor standard amongst pharmacists in dispensing drugs of addiction "because so many doctors have prescribed these medications inappropriately for such a long time that most pharmacists came to accept standards they should not have, simply because they are so common."
In supporting his submission that a reprimand was appropriate, the respondent relied upon the assessment made by delegates of the Council when the restrictive conditions were removed from his registration, and the determination made by senior pharmaceutical officers of the PRU that his entitlement to dispense Schedule 8 and Schedule 4D drugs should be restored.
In the course of his evidence before us the respondent repeated information which he had previously provided to the applicant and to the delegates during the course of the section 150A proceedings when practice conditions had been removed from his registration. He said he has continued to work at the same pharmacy which is now under new ownership and that most of the pharmacists who previously worked there are no longer employed at the pharmacy. He works three days a week and is generally the only pharmacist on duty. He now dispenses Schedule 8 and Schedule 4D drugs every day without incident.
In describing his prior conduct, the respondent said that he had made "a few key errors of judgement and knowledge" and that his knowledge of practices and procedures was "not up-to-date." He said he based his practice and what he thought was "normal" or what the prescribing doctors "had done for years" rather than following the regulations. He said he took what others were doing as representing the guide for his own practice. He did however concede that his judgement was "impaired."
The respondent said that he now practises strictly by "the guidelines", he knows that if he saw something outside the acceptable practice he would talk to the doctor and send information to that doctor and if necessary, would notify "the HCCC." He said his "entire mindset has changed" and acknowledges that pharmacists are not subservient to doctors. In his evidence the respondent described his interaction with patients before dispensing Schedule 8 drugs, informed us that he had referred patients to a pain specialist two to three times after speaking to the general practitioner and acknowledged that there would need to be "a good reason" why a private prescription should be dispensed.
The respondent also described his current mentoring arrangements with Mr K Yu who works at the same pharmacy.
The respondent asserted that he has now taken the time to read and understand all of the relevant legislation and Codes applying to his professional work as a pharmacist, as well as undertaking extensive Continuing Professional Development (CPD) courses.
In answer to questioning from the Tribunal the respondent said that he had not at any stage considered challenging the part owner of the pharmacy, Mr Lal. He said that he had made suggestions to introduce changes to the pharmacy which had been ignored and if he had challenged the owner this also would have been ignored. He also described himself as a "non-confrontational person." Nor did he consider leaving that pharmacy and working elsewhere despite his noted unease regarding Mr Lal's management of the pharmacy.
The respondent provided letters of support from Mr Chen and Mr Yu and others which attest to his good character and reputation, and his current excellent work as a pharmacist.

The applicant's position

The applicant supported a protective order in the nature of a reprimand which it said would constitute a formal way of rebuking or expressing disapproval for the respondent's conduct. It was said that a reprimand would also constitute an appropriate deterrent to the respondent and to other pharmacists. By necessary implication the applicant must be seen as assessing a reprimand as enhancing the confidence of the public in the reputation and integrity of pharmacists in the community, a submission which we find surprising in all the circumstances.
In aid of the applicant's submissions, it relied upon the following matters: 1. the respondent formally admitted as early as August 2019 that he had engaged in serious misconduct, and has continued to admit to that misconduct since 2. the respondent has expressed contrition and remorse for his misconduct 3. the respondent has addressed his shortcomings inter-alia by completing extensive CPD activities and acquiring knowledge about the dispensation of Schedule 8 and Schedule 4D drugs.

Consideration

in determining what are appropriate protective orders we take into account the following features of the respondent's misconduct: 1. the inappropriate dispensing of these restricted drugs of addiction created a risk to the health and safety of the respondent's patients 2. the nature and extent of the misconduct which we have described in some detail by reference to the extent of the inappropriate dispensing of these drugs of addiction being of a most egregious kind 3. the misconduct was not confined to one or two patients, and a significant number of patients were involved 4. the misconduct occurred over a period of some years 5. it cannot be said that the misconduct represented a momentary or transitory aberration in the performance by the respondent of his professional duties as a pharmacist 6. at the time that this misconduct commenced the respondent had been practising as a pharmacist for almost 19 years, and must be assessed accordingly as having appropriate knowledge and sufficient experience to allow him to practise pharmacy safely and lawfully 7. the respondent conceded that he then lacked the requisite knowledge of the protocols and procedures at law for the dispensing of these drugs of addiction 8. the respondent conceded that he then lacked the capacity to challenge the medical practitioners involved and his employer, and to report the circumstances to AHPRA as required by law 9. the respondent failed to remove himself from the situation with which he came to realise he was uncomfortable
The respondent has asserted that he now has the relevant insight into his misconduct, that he is a "reformed person" and would never engage in misconduct again. Before us the respondent stated that he firmly believes this to be the position. There is corroborative evidence to which we have referred that the respondent now conducts himself appropriately in his practice as a pharmacist.
During the course of the proceedings, we asked the respondent whether he had ever undertaken any form of therapy in an endeavour to gain some insight into why he had engaged in this misconduct. The respondent indicated that he had not sought any external advice, and his response for the purpose of these proceedings is that he now possesses sufficient self-insight to ensure that he will never engage in misconduct again.
Pharmacists must always be ready to deal with unusual situations from time to time whether pertaining to the circumstances of patients or the conduct of prescribing medical practitioners. In order to practise safely they must have the strength of character, the requisite knowledge and the professional judgement to be able to deal with these situations. The respondent regards himself as having undergone a process of reformation. However, the authorities which bind us in our consideration of these matters exhort caution in accepting that a person has reformed appropriately.
In Lee v Health Care Complaints Commission [2012] NSWCA 80 in the NSW Court of Appeal, Barrett JA (Macfarlan JA and Tobias AJA agreeing) referred to these matters at [72] to [73]: "[72] Finally on this aspect, there is the point that emerges from the decision of this Court in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630. Gleeson CJ, Meagher and Handley JJA there noted (at 637) that, despite the passage of four and a half years since the last complaint of misconduct, there was no explanation offered that would make it unlikely the misconduct would reoccur or to suggest that the practitioner had become a changed person. They said: 'In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW)(Pt 2) 275 at 286: "... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man"' [73] A finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct."
We accept that the respondent has striven earnestly to reform himself. However, in order to feel comfortable that the respondent now possesses the strength of character to enable him to confront and deal with out of the ordinary circumstances which might be encountered in the practice of pharmacy, we would have been assisted by some corroborative evidence to this effect. In that the respondent tended to ascribe blame for his misconduct to the confluence of circumstances which attended his practice as a pharmacist he appears to have minimised his own understanding of whatever aspects of his character allowed this to happen.
The burden of demonstrating that he is a reformed person and is unlikely to misconduct himself again rests on the respondent, albeit to the civil standard.
On the evidence, the reasons for the respondent's misconduct were a combination of lack of knowledge on his part, a lack of ability to exercise an independent informed judgement, and an inability to confront and deal with the circumstances of his patients. All of these matters are tinged with a sense of naïveté in a pharmacist of his experience without apparent understanding of the dangers of inappropriate use of these drugs of addiction, and the proclivity of some to engage in their sale. On one view, the medical centre which seemingly provided all of the prescriptions for these patients was engaged in unseemly and inappropriate conduct, especially on the part of Dr Ochoa, and the pharmacy at which the respondent was employed facilitated this conduct. And it must be remembered that at all relevant times the respondent was an experienced pharmacist who served from time to time as pharmacist in charge.
We repeat that in making his submissions the respondent has focused upon circumstances external to himself, referring in general terms to the improper culture prevailing in the medical centre next door, within the pharmacy where he worked and in the general environment prevailing in the medical and pharmaceutical community. However, we observe that he has not endeavoured to explain in appropriate detail the extent to which he knew that in succumbing to these external circumstances he was misconducting himself as a pharmacist. There are a number of reasons why the respondent acted in this way. One reason was ignorance of the prevailing therapeutic guidelines, and a general lack of knowledge of the clinical and regulatory framework which all pharmacists are expected to have. Another was his laissez-faire attitude to what was going on, seemingly a medical centre and pharmacy next door engaged in inappropriate prescribing and dispensing of dangerous drugs of addiction, and in the wider medical and pharmacy community. Thirdly it was caused by some "defect of character" as referred to by Basten JA in Chen at [99] above. The explanations provided by the respondent corroborate the fact that each of these reasons to varying degrees played a part in the respondent's misconduct. Importantly, our consideration of what are appropriate protective orders must focus upon the respondent himself and upon any risk that he might pose to the health or safety of the public.
There needs to be some understanding of why a pharmacist of almost 19 years' experience misconducted himself in such a serious manner. We are unable to conclude that the respondent can continue to practise pharmacy safely without that understanding. It is usually provided by a psychologist who is able to provide a practitioner with insight into his or her behaviour and with coping mechanisms to minimise the risk of any misconduct in the future. In all the circumstances we conclude that it would be unsafe for us to rely solely on the respondent's own self-reflection and his own assessment of his own insight.
Even though we have concluded that cancellation of registration is an available protective order by reason of our findings that the respondent has engaged in professional misconduct, as conceded by him, and that cancellation would normally be the appropriate protective order, in the circumstances of the seriousness of his misconduct, we propose to suspend the respondent's registration for a period of six months. In doing so we acknowledge the endeavours the respondent has made to date to embark upon a process of rehabilitation as justifying a protective order of suspension, rather than cancellation. A period of suspension will allow the respondent an opportunity for introspection and to engage with a psychologist with appropriate qualifications to assist him to understand why he engaged in the misconduct which is at the root of these proceedings and what steps may be taken to ensure to the extent possible that he is provided with protective mechanisms to preclude misconduct of this kind in the future. We propose to make an order to this effect.
We also propose to make an order that the respondent continue to engage in a mentoring process, and we note that the respondent is amenable to this.
In addition, we shall make provision for an audit of the respondent's practice and require his completion of a designated course in order to complement his knowledge.

Costs

The applicant sought an order for its costs. This is a costs jurisdiction. The respondent did not oppose the making of a costs order. We formally conclude that the applicant has not engaged in any conduct which would disentitle it to a favourable costs order, and we shall make that order accordingly.
Consequent upon the finding of professional misconduct which we have made we make the following orders: 1. the registration of the respondent as a pharmacist is suspended for a period of six months from this date. 2. the respondent is to attend for treatment by a psychologist of his choosing. The frequency of treatment is to be determined by the treating practitioner. The respondent: 1. is to authorise the treating practitioner to inform the Pharmacy Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change); 1. must provide the Council with the professional details of the treating practitioner; and 2. must provide evidence to the Council of his attendance with the treating practitioner within fourteen (14) days of returning to practice. 1. the respondent is to submit to an audit of his practice, by a person or persons nominated by the Pharmacy Council of NSW and: 1. the audit is to be held within 3 months from recommencement of practice and subsequently as required by the Council; 2. the auditor(s) is to assess his compliance with good record keeping standards, legislative requirements and compliance with good dispensing practice; 3. the auditor(s) should pay particular attention to dispensing, administering and recording of drugs of addiction and drugs of dependence; 4. the respondent is to authorise the auditor(s) to provide the Council with a report on their findings; and 5. the respondent is to meet all costs associated with the audit(s) and any subsequent reports. 1. the respondent is to complete within 12 months of this date the 'Ethics and Dispensing in Pharmacy Practice' course by the Pharmaceutical Society of Australia (PSA). 1. Within 3 months of this date, he must provide evidence to the Pharmacy Council of NSW of his enrolment in the abovementioned course. 2. Within 3 months of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. 3. He is to bear responsibility for any costs incurred in meeting this condition. 4. In the event that the course is unavailable, the respondent must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from this date. 1. the respondent is to nominate an experienced registered pharmacist to act as his professional mentor for approval by the Council in accordance with any mentoring policy adopted by the Council from time to time. 1. The respondent is to be mentored for a minimum period of 12 months and subsequently as determined by the Council. 2. The respondent is to participate in meetings with the mentor on a monthly basis. At each mentoring meeting, the respondent is to include discussion of the issues highlighted in the Tribunal's decision, his personal and professional development, and any personal and/or practice issues as they arise. 3. The respondent is to authorise the mentor to report, in an approved format, to the Council on a quarterly basis. 4. The respondent is to authorise the mentor to inform the Council immediately if the mentoring relationship ends, or of any significant concerns regarding the respondent, or his compliance with any conditions on his registration. 5. The respondent is to meet the costs of this condition. 1. the respondent is to forward evidence to the Pharmacy Council of NSW within 14 days of commencing work as a pharmacist or changing a place of work that he has provided a copy of these conditions to his employer. This condition is to continue to apply for such period as is determined by the Council. 2. the respondent is to pay the costs of the applicant in an amount assessed in default of agreement.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2022

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