Health Care Complaints Commission v Haydon

Nature of the jurisdiction

1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and to maintain proper standards in the profession of pharmacy.
2. In Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201-202; [1960] HCA 40, the High Court said: "Although it is sometimes referred to as 'the penalty of disbarment', it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege."
3. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "… The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted."
4. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3A of the Health Practitioner Regulation National Law (NSW) ("the National Law").

The issues

1. In essence, therefore, the issues which arise are clearly set out in the particulars of Complaint One above and then dealt with in detail by the expert at [7] and [8] below.

Respondent's Reply to Third Amended Complaint

1. In the Respondent's Reply to the third amended Complaint, she admitted a number of the Complaints and particulars thereof, denied others, and provided further qualifications to her responses, as follows:

• The Respondent accepts the points under Background to all Complaints (detailed above) except insofar as she is described as a 'pharmacist in charge'. She states that she was employed as a pharmacist, not a pharmacist in charge as per her signed employment agreement, and that this covered the period from 26 March 2013 to 3 September 2018.
• In response to Complaint One, the Respondent admits she has engaged in unsatisfactory professional conduct as defined in the National Law. She concedes the factual allegations in particulars 1 to 4 and that drugs of addiction were unaccounted for, but does not admit the quantum as stated in each of those particulars.
• The Respondent disputes the factual allegations in particular 5 - that she failed to undertake required stock checks in 2017 and 2018 - and states that Mr John Negus was responsible for stock checks of drugs of addiction at the pharmacy.
• The Respondent concedes the factual allegations in particulars 6 to 13, including that she took medications from the Pharmacy's dispensary (particular 6) and inappropriately left her password to the electronic dangerous drugs register on a Post-it note near the dispensary computer keyboard (particular 11), and further allegations as detailed in the particulars of Complaint One above.
• The Respondent claims she was employed as pharmacist, not a pharmacist in charge, as is stated in particulars 1, 3 and 7.
• In response to Complaint Two, the Respondent admits she has engaged in unsatisfactory professional conduct as defined in the National Law in that she failed to appear before the Health Care Complaints Commission on 14 August 2019, having confirmed receiving a Notice to Appear on 31 July 2019.
• However, the Respondent offered the following qualification: that she emailed Ms Christine Mudliar late on 24 August 2019 and notified Ms Mudliar of difficulties with her mental health.
• In response to Complaint Three, the Respondent admits she has engaged in professional misconduct as defined in the National Law in that she:
• engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; or
• engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration.
• In relation to the particulars of Complaint Three, the Respondent "repeats the above [qualifications] as relevant."
• In response to Complaint Four, the Respondent concedes that she suffers from a mental impairment, disability, condition or disorder, but denies that it detrimentally affects or is likely to detrimentally affect her capacity to practise the profession.
• In response to the particulars of Complaint Four, the Respondent concedes that she has been diagnosed with Autism Spectrum Disorder (Asperger's Syndrome) and major depression.
• In response to Complaint Five, the Respondent notes the allegation that she lacks the mental capacity to practise as a pharmacist, but does not concede that her impairment is of a sufficient nature and degree that it detrimentally affects or is likely to detrimentally affect her mental capacity to practise the profession.

Expert evidence

1. The Applicant in Exhibit 1 provided a series of reports by Ms N Croker, a registered pharmacist. The report is significant in that it looks at each allegation made against the Respondent and expresses the expert's views on the appropriateness or otherwise of the behaviour of the Respondent.
2. The report and the conclusions of the expert are set out in point form as follows:

• The expert witness was asked for her opinion regarding Ms Haydon's assertion that she was not aware large numbers of restricted medications had become unaccounted for and were possibly lost, stolen or diverted during the period 1 January 2017 to 3 September 2018, when she was one of two pharmacists in charge at the Pharmacy. The expert made the following points:
• It would be expected that, on the days they were working, the pharmacists were aware of any issues with medications and would take all necessary steps to ensure medications were not lost, stolen or diverted.
• As Ms Haydon was working 5 days a week as the pharmacist in charge and as the sole pharmacist, and would have been directly handed the S8 medications from the delivery driver on the days she was working, it seems unlikely that Ms Haydon was not aware of the volumes of S8 medications entering the Pharmacy. Even if she forgot or did not have time to enter the S8 medications into the register on the day of delivery it would be expected that at some point she would recall that she needed to enter these quantities of medications into the drug register.
• Ms Haydon's assertion that she was not aware of the issue falls significantly below the standard expected.
• The expert was strongly critical of Ms Haydon's conduct.
• The expert witness was asked for her opinion on the appropriateness of Ms Haydon's admissions that she did not enter stock into the dangerous drugs register on the day it was received and made erroneous and duplicate entries of invoices, and that there were numerous occasions when the dangerous drugs register was not maintained on a daily basis. The expert made the following points:
• The pharmacist in charge would be expected to receive stocks of drugs from suppliers, and S8 medications are usually handed directly to the pharmacist by the delivery driver. The pharmacist who receives them must sign a document to prove receipt and one copy of this is given back to the driver to keep for the wholesaler's record and to provide proof of delivery. The other copy is kept on the pharmacy premises. It is expected that any pharmacist who signs this document carefully checks that the list of medications received is correct and if there were any discrepancies this would need to be rectified prior to signing.
• It is expected that all pharmacists keep careful track of S8 medications when they are working on any given day and, if they are to enter an invoice, take care not to make any mistakes or duplications.
• There were numerous occasions where oxycodone and/or alprazolam tablets were not entered into the S8 register when supplies were delivered.
• On the majority of days where stock was not entered into the register on the day of receipt, investigations showed Ms Haydon's signature was on the proof of delivery document.
• The expert noted that Ms Haydon had stated that she had difficulty managing her workload, and that she may not have prioritised entering the dangerous drugs as she should have. The expert was of the opinion that this did not explain why Ms Haydon would have entered some of the stock received on a day, but not all.
• Ms Haydon's conduct in the case that she did not enter stock into the dangerous drugs register on the day it was received and made erroneous and duplicate entries of invoices, and that there were numerous occasions when the dangerous drugs register was not maintained on a daily basis, as she asserted, would fall significantly below the standard expected.
• Given the fact that all pharmacists should be aware of the legislation surrounding S8 medications, as well as the nature of these medications which are generally opioids or benzodiazepines and may be subject to misuse or abuse, the expert was strongly critical of Ms Haydon's conduct.
• The expert witness was advised that Ms Haydon had admitted that, on one occasion, her actions led to the loss of approximately 400 tablets of Endone. She was asked her opinion of Mrs Haydon's conduct. The expert witness considered that her actions contravened strict legislative requirements regarding storage and record keeping and fell significantly below the required standard. She was strongly critical of this conduct.
• In response to the Respondent's failure to ensure that periodic inventories of Schedule 8 drugs were performed between 1 January 2017 and 6 September 2018, the expert noted that:
• The requirements for S8 medications include undertaking a twice-yearly stock check, which involves checking all S8 medications against the drug register. Medications must be physically counted and checked, and a note must be made of this stock check in the drug register. The legislation indicates that this must be done in March and September.
• Ms Haydon believed Mr Negus was undertaking S8 management, as he had done prior to the S8 register moving to the electronic system. Mr Negus himself stated that he had been doing the S8 medication checks prior to the electronic drug register while he was the pharmacist only two days a week.
• Nevertheless, all pharmacists should be aware of the requirement and should have been aware that this had not been undertaken for a long period, and therefore any pharmacist working should have remedied the issue by checking the S8 stock. Also, when dispensing items, it is expected that a pharmacist would check the total against the register and ensure any discrepancies were acted upon.
• The expert was of the view that Haydon's conduct in failing to undertake periodic inventories of Schedule 8 drugs between January 2017 and September 2018 falls significantly below the standard expected.
• The expert was strongly critical of this conduct.
• The expert witness was advised that CCTV footage shows Ms Haydon taking items from the Pharmacy's dispensary and leaving the Pharmacy without making payment. She was asked her opinion of Ms Haydon's conduct. She notes that:
• On her review of the two days of video footage, Ms Haydon can be seen, on the second day (24 August 2018), opening a larger box that appears to have stock, as she passes some items to her colleague and these are taken to the front of the shop and placed onto the shelves. Ms Haydon then opens a smaller box, takes out a number of white boxes of medication, and places these into her handbag, along with what appears to be the invoice for the items.
• When S8 medications are delivered to the pharmacy they are delivered in a separate box or bag so that it can be handed directly to the pharmacist and checked etc. They are often delivered in a small box such as the one opened by Ms Haydon.
• Ms Haydon is also seen taking a number of boxes of what appears to be medication off a shelf in the dispensary and placing those into her handbag as well.
• Ms Haydon's conduct in taking items from the dispensary, without making payment, falls significantly below the standard expected.
• As the items in question appear to be medication stock, an invoice for that stock, and medications off the dispensary shelf, the expert is strongly critical of this conduct.
• The expert witness was advised that Ms Haydon had admitted to dispensing two scripts of Endone for herself. She was asked for her opinion of this conduct. She advised that:
• There is no legislation which states a pharmacist cannot dispense medication to themselves providing they have a valid prescription.
• If Ms Haydon dispensed Endone to herself on the basis of a valid prescription from a medical practitioner, her conduct would not be significantly below the standard.
• However, if Ms Haydon dispensed Endone to herself without a valid prescription, her conduct would fall significantly below the standard expected, and the expert would be strongly critical of this conduct.
• The expert witness was advised that Ms Haydon admitted that she located a box of empty prescription pads under Mr Negus' hand weights on top of the Pharmacy's drug safe. She was asked her opinion of Ms Haydon's decision not to take any action. She considered that:
• This is an unusual situation. Prescriptions should be kept secure by the medical practitioner. The expert noted that Ms Haydon stated she felt pressured to "keep quiet" about certain issues and that she was fearful about the security of her job if she did speak up. The expert concluded that, whilst Ms Haydon's conduct fell below the standard expected, there was no suggestion that the prescriptions were being used by Ms Haydon. In those circumstances, the expert found that Ms Haydon's conduct was not significantly below the standard expected.
• The expert witness was advised that Ms Haydon claimed to have witnessed Mr Niels Bowen, owner of Bowen Health Services, taking prescription medications from the Pharmacy without prescription and without the medication being dispensed. She was asked her opinion of Ms Haydon's decision not to take any action. She considered that:
• Ms Haydon's conduct in the event that she was aware that Mr Bowen took prescription medications from the Pharmacy without a prescription and did not report this, would fall below the standard expected.
• However, given the fact that Mr Bowen is a pharmacist of long standing, owner of Bowen Health Services and Ms Haydon's employer, the expert accepted that Ms Haydon felt fear about the security of her job. In that circumstance, the expert found that Ms Haydon's conduct did not fall significantly below the standard.
• The expert witness was asked her opinion of Ms Haydon's conduct in leaving her password to the electronic drug register on a Post-it note near the computer keyboard. She noted that:
• It would generally be expected that all pharmacists were aware of the need to keep their own passwords for any software secure and not share them with others.
• The expert accepted that Ms Haydon did not receive any training in the electronic drug register, and there was no policy regarding the use of the electronic drug register that the expert was aware of. The expert noted that the previous hard copy drug register system could have had been accessed by any person.
• For those reasons the expert was not critical of Ms Haydon for this conduct.
• The expert witness was asked her opinion of Ms Haydon's decision to comply with instructions from Mr Bowen to provide prescription medications, including Valium and antibiotics, to Mr Bowen's family and friends. The expert made the following points:
• Ms Haydon was a more junior employee and felt fearful for her job and as such complied with the instructions of her more senior pharmacist employer.
• Ms Haydon had received a text message from Mr Negus indicating that she should comply with instructions from Mr Bowen to provide his friends with medications.
• Whilst it was not clear if prescriptions were later provided by the patients, the expert was not critical of this behaviour.
• The expert witness was asked her opinion of Ms Haydon's decision to comply with instructions from Mr Negus to supply prescription medication to patients without a prescription. The expert made the following points:
• There was no clarity around the circumstances in which this request was made. According to Mr Negus, a patient had a prescription for an antibiotic held at another pharmacy, this medication was then dispensed to the patient and the prescription received from the other pharmacy and reconciled. In that situation, the expert found Ms Haydon's conduct does not fall below the standard expected.
• Further to that, if someone required an urgent medication, such as a blood pressure medication, it would generally be expected that at first the pharmacist would attempt to contact the prescriber to issue a telephone order. If this was not possible (for example the prescriber was closed) there is allowance under the legislation for the pharmacist to provide three days' emergency supply, in which time the patient could get a prescription as necessary.
• The expert was of the view that, if Ms Haydon acted on the instruction of Mr Negus, as she believed him to be the senior pharmacist, or because of fear for her job, she was not strongly critical of Ms Haydon.
• The expert witness was asked for any other comments that she considered to be relevant. Her comment was that the apparent loss of large numbers of S8 medications, predominantly oxycodone and alprazolam, is of great concern. The usual procedures for managing S8 medications do not appear to have been met by the lack of documentation being kept and by duplication of entries into the register. The CCTV footage provided to her, showing Ms Haydon removing medication stock from the Pharmacy, was also of great concern.

Section 150 hearing

1. The Tribunal also had available to it a copy of proceedings under s 150 of the National Law in respect of a hearing on 20 September 2018. The report of the proceedings sets out in detail the complaints against the Respondent and the determination made by the Pharmacy Council of New South Wales ("the Council"). The pertinent elements of the decision of the Council are as follows:

• The s 150 hearing was a consequence of a complaint from a staff member at the Erina Heights Chemist Outlet (the Pharmacy) alleging the loss and possible diversion of large quantities of Schedule 8 medicines, which was attributed to employee pharmacist Ms Kristen Lee Haydon, and accused her of selling Endone privately.
• This missing stock was substantiated by an interim report of an investigation by the Pharmaceutical Regulatory Unit (PRU) at the Pharmacy, which found loss or possible diversion of a large number of oxycodone and alprazolam tablets; that periodic inventory of Schedule 8 drugs had not been performed between 1 January 2017 and 6 September 2018, and that Ms Haydon may have failed to retain Schedule 8 prescriptions separately.
• An internal investigation from the Chemist Outlet Group, following a complaint of a staff member accusing Ms Haydon of selling Endone privately, revealed 43 out of 60 Schedule 8 stock lines were incorrect in the electronic drug register at the Pharmacy; all Schedule 8 prescription duplicates dispensed between November 2016 and February 2017 were missing; there were multiple discrepancies in the electronic drug register, including duplicate drug entries, invoices entered incorrectly or late and stock adjustments for no clear reason; and no Schedule 8 drug checks had been conducted since 2016.
• The delegates noted that Ms Haydon:
• Acknowledged that she and Mr Negus "made duplicate entries of invoices into the DD [dangerous drugs] register", and "made errors in entering invoices into the DD register";
• Stated that she considered "entering DDs as a lower priority than serving customers and this at times resulted [in] a large number to enter at the end of the day, when I was more likely to make errors";
• Stated she was "grateful and relieved when Mr Negus told me he would 'take care of the DDs' to help reduce my workload." She acknowledged that she now realises she was failing in her legal obligations, after being informed that she should be maintaining the DD register every day;
• Acknowledged that she failed in her responsibilities as a pharmacist to ensure invoices for Schedule 8 drugs that she had signed for were entered correctly into stock and the drug register.
• The delegates considered that there were several areas of concern:
• Not making a timely record of receipt or issue of Schedule 8 drugs.
• The seeming lack of regard for the importance of conducting periodic checks of Schedule 8 drugs, with the balance of Schedule 8 drugs seeming to be inaccurate for quite some time.
• The inability to locate Schedule 8 duplicate prescriptions when requested.
• Lack of responsibility for maintaining records of Schedule 8 drugs and purportedly deferring this responsibility to someone else.
• The delegates were mindful that the matter was subject to ongoing investigation and that a possible outcome was that Ms Haydon could be subject to disciplinary action. In the meantime they believed it to be both in the public interest and prudent to exercise abundant caution in placing restrictions on Ms Haydon's practice. They concluded that: "34. There is clearly a deficiency in Ms Haydon's practice around the handling of S8 medicines, leading to a multitude of discrepancies as well as a lack of accountability by the practitioner. Therefore, to minimise risk, Ms Haydon should be restricted from handling S8 medicines as a pharmacist. 35. In addition, Ms Haydon should not work as the pharmacist in charge whilst the investigation is ongoing. …"
• The conditions placed on Ms Haydon's registration included that she:
• Must not work in a pharmacy as the pharmacist in charge; and
• Must not possess, supply, manufacture or dispense any "drug of addiction" including derivatives or compounded medication (Schedule 8 of the NSW Poisons List) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW) or any controlled drug listed in the Poisons Standard (the SUSMP), or in an equivalent list in any other Australian State or Territory.

Pharmaceutical Regulatory Unit reports

1. In addition, the Tribunal had available to it an interim report and a final report of an investigation conducted by the PRU into the pharmacists working in the Pharmacy. These reports analyse irregularities found at the pharmacy and address in particular the fact and amount of missing Schedule 8 and other drugs from the Pharmacy. The reports address the involvement of the other pharmacist who worked two days a week in the pharmacy with the Respondent, but in essence concentrates on the actions of Ms Haydon. The reports are significant in the context of Ms Haydon's involvement in the irregularities at the Pharmacy and the details of the investigation are set out in the Interim Report dated 12 September 2018 and the Final Report dated 16 November 2018.
2. The Interim Report concluded that: "17. … [I]t appears that Kristen Haydon was the only pharmacist present at Chemist Outlet, Erina Heights pharmacy on the days during the period 17 February 2017 to 3 September 2018 when there was loss or possible diversion of 6,700 oxycodone 5mg tablets, 1,036 oxycodone 10mg tablets and 140 oxycodone 20mg tablets, as well as 200 alprazolam 0.5mg, 250 alprazolam 0.25mg, 300 alprazolam 1mg and 300 alprazolam 2mg tablets. 18. It is of great concern to the Ministry that the above stock remains unaccounted for. 19. Ms Haydon may have failed to retain prescriptions for drugs of addiction separately, as required by clause 89(2) of the Poisons and Therapeutic Goods Regulation 2008. 20. Ms Haydon has failed to perform periodical inventory of stock of drugs of addiction during the period 1 January 2017 to 6 September 2018, in March 2017, September 2017 and March 2018, in breach of clause 118 of the Poisons and Therapeutic Goods Regulation 2008."
3. The Final Report noted CCTV footage purportedly showing Ms Haydon removing dispensary items from the Pharmacy. It lists the oxycodone products not accounted for in the Pharmacy as: "• Mayne Oxycodone IR 5mg 20 - 5,000 tablets unaccounted for through invoices not being entered… • Endone 5mg 20 - 4,260 tablets unaccounted for through invoices not being entered and an incorrect credit. 329 prescription entries with no copies of scripts… • Oxycodone Sandoz 10mg - 2,016 tablets unaccounted for through invoices not being entered and stock adjustments..."
4. Other products listed as not accounted for in the Final Report are: "• Kalma 500mcg has 400 tablets that have invoices but have not been out through the DD register. • Kalma 250mcg has 250 tablets that have invoices but have not been put through the DD register."
5. The Final Report also notes "endless stock adjustments that have no clear reasons." It was noted that Ms Haydon had denied any wrongdoing and that the PRU had decided to investigate Ms Haydon's compliance with the Poisons and Therapeutic Goods legislation.
6. An investigation was conducted by Mr Gavrilovic, Senior Pharmaceutical Officer at the PRU. In his report, in relation to a stock check of drugs of addiction, he states: "9.1 The pharmacy does not have an entry for Biodone liquid, of which there was only a small amount (not accurately measured, perhaps around 10ml). 9.2 The stock balance for Kalma® 250mcg tablets was incorrect, showing 210, when the actual balance was 220 tablets. 9.3 The stock balance for Norspan® 40mcg patches was incorrect, showing 0, when the actual balance was 2 patches. Note: it was subsequently found that this balance was transferred to stock marked for destruction as it was short dated (expiring October 2018). 9.4 The stock balance for Oxynorm® 10mg capsules was incorrect, showing 40, when the actual balance is 20 capsules. 9.5 The stock balance for Targin® 5mg/2.5mg tablets was incorrect, showing 196, when the actual balance was 152 tablets. Note: there was some additional stock of Targin® in various strengths that was loosely packed (outside of its primary container and/or labelled for a patient), which was not taken into account when determining the above balance. 9.6 The stock balance for Suboxone® 8mg films was incorrect, showing 349, when the actual balance was 105 films. 9.7 The stock balance for Subutex® 8mg tablets was incorrect, showing 126, when the actual balance was 98 tablets."
7. Mr Gavrilovic's report also notes that:

• He was advised by officers of Bowen's Health Services that Ms Haydon's employment had been terminated after she was asked to explain CCTV footage that showed her removing stock from the Pharmacy, which she reportedly refused to do.
• A diary note from the Pharmacy shows that Mr Negus provided Ms Haydon with his user number and password for the electronic drug register.
• Photographs taken from the CCTV footage show that on 24 August 2018 Ms Haydon removed stock from the Pharmacy and placed it in a black bag, and that she unpacked stock from a cardboard box and placed it in a brown paper bag, which was then placed in a brown handbag, which she removed from the Pharmacy. On 23 August 2018, Ms Haydon appears to be removing a large cardboard box, although it is not known what was in that box.

1. Mr Gavrilovic noted records of purchases by the Pharmacy from two different supply companies: API, for the period 1 November 2016 to 24 August 2018, and Symbion, for purchases between 1 January 2017 and 7 September 2018.
2. Based on information provided to PRU, Mr Gavrilovic concluded that Ms Haydon was the only pharmacist present at the Pharmacy on the days during the period 17 February 2017 to 3 September 2018, when there was loss or possible diversion of 6,700 oxycodone 5mg tablets, 1,036 oxycodone 10mg tablets and 140 oxycodone 20mg tablets, as well as 200 alprazolam 0.5mg, 250 alprazolam 0.25mg, 300 alprazolam 1mg and 300 alprazolam 2mg tablets.
3. Mr Gavrilovic was able to determine, from the electronic drug register records obtained from the Pharmacy, that no inventory of drugs of addiction stock had been performed at the Pharmacy during the period 1 January 2017 to 6 September 2018.
4. Mr Gavrilovic's report concludes that it appears that Ms Haydon was the only pharmacist present at the Pharmacy on the days during the period 17 February 2017 to 3 September 2018 when there was loss or possible diversion of at least:

• 30 packs of Endone® 5mg tablets (a total of 600 tablets);
• 10 packs of Kalma® 0.5mg tablets (a total of 100 tablets);
• 2 packs of Kalma® 2mg tablets (a total of 100 tablets);
• 169 packs of Mayne Pharma oxycodone 5mg tablets (a total of 3,380 tablets);
• 30 packs of oxycodone Sandoz 10mg tablets (a total of 840 tablets); and
• 5 packs of oxycodone Sandoz 20mg tablets (a total of 140 tablets).

1. The Report further concluded that:

• Ms Haydon appears to have failed to retain prescriptions for drugs of addiction separately, as is required.
• Ms Haydon appears to have dispensed drugs of addiction based on prescriptions that did not comply with the Poisons and Therapeutic Goods Regulation 2008 (NSW).
• Ms Haydon has failed to perform periodical inventory of stock of drugs of addiction during the period 1 January 2017 to 6 September 2018, in March 2017, September 2017 and March 2018, in breach of cl 118 of the Poisons and Therapeutic Goods Regulation.

1. Mr Gavrilovic advised that Ms Haydon had attended at PRU on 27 September 2018 and consented to an order withdrawing her authority as a pharmacist to possess, supply, manufacture or dispense drugs of addiction.

Response

1. The Respondent chose not to give evidence in person to the Tribunal. Accordingly the evidence available to the Tribunal is set out in the Response that the Respondent provided on 8 January 2019 to the Health Care Complaints Commission in respect of a complaint made by the Council. In her Response she claims she was given little training and assistance in fulfilling her duties as a pharmacist, and believed that she was expected to provide pharmacy services without appropriate documentation. The demands of the business left her stretched in her capacity to fulfill all that was expected of her, causing her to fall behind in some of her responsibilities. She felt unsupported by the managers and staff within the Pharmacy and conflict between staff members left her distressed. Her Response makes the following more specific points:

• The ongoing stress associated with false accusations, loss of employment and loss of professional support has had a significant and detrimental effect on her life.
• She did not believe she was mentally fit to answer the questions posed by the HCCC, but was trying her best to do so, though it was difficult for her to concentrate so as to read, write and recall information. She recognised these as signs of an exacerbation of an illness she has lived with and managed for more than a decade.
• She did not renew her registration in November 2018 because she did not feel well enough to cope with working.
• Nevertheless, it was her desire to renew her registration and her goal to return to the workforce in the near future when well enough to do so.
• She considered that her private and professional life had been slandered by false allegations of an ex-colleague, which have taken a toll on her wellbeing.
• She understood the importance of the role of the HCCC in protecting the public and the need to investigate all complaints about health practitioners and respected that this is part of the process.
• She had worked hard to be a part of a profession she is proud of, where her primary focus is the health of the community. She wished to continue in that role.
• She noted details of her employment contract dated 26 June 2013, outlining her employment in the position of part-time pharmacist (not pharmacist in charge or pharmacist manager). She had been employed at the Pharmacy for just over five years and noted that her roster hours were changed from those stated in her employment contract. She was ordinarily required to work a minimum of 40 hours per week, contrary to her employment contract that provided for 26 hours per week and 31 hours per week for alternating weeks.
• She states that she was given the impression that she was expected to take direction from the senior pharmacist, Mr Negus, and was answerable to the retail manager, Mrs Lee Eckford, but given little detail on operational processes specific to the duties of a pharmacist.
• Her understanding of what was required in the role evolved through observation and she was told that she was to do as management requested and was also to follow Mr Negus' instructions regarding the dispensary. She regarded Mr Negus as being in charge of the dispensary and looked to him for knowledge and guidance as a mentor.
• She detailed her duties, as she understood them, as including: serving customers; dispensing scripts; counselling customers on medications, supplements and general health conditions (head cold, allergic rhinitis, head lice, nappy rash, fungal infections and so forth); packing and checking some of the Webster packs; dosing patients in the opioid treatment program if they presented on a day that she was working; ordering dispensary stock on the days that she worked to ensure stock was replenished; unpacking and putting stock orders away (sometimes with assistance); and, in conjunction with Mr Negus, entering drugs of addiction into the register and writing out those dispensed.
• She acknowledged that "[s]ometimes I dispensed the medication and did not enter [it] into the register sometimes this was because I was too busy other times because I could not get the register to balance. When the DD entries would not balance I would leave a note for Mr Negus. He often told me to leave the DDs and that he would take care of it."
• Other duties undertaken at the request of Head Office included "in conjunction with Mr Negus" inter alia: conducting "meds checks (despite there only being one pharmacist on duty and no dispensary staff)"; entering invoices into point of sale software (with the assistance of the dispensary assistant when available); entering budget data into an excel spreadsheet; and transferring dispensary stock to other Chemist Outlet pharmacies and the Head Office when instructed.
• Other duties undertaken at the instruction of Mrs Eckford included "together with Mr Negus" inter alia: contributing to the training of dispensary staff; supervising student pharmacists on placement; and providing a weekly budget for the dispensary.

1. The Respondent further notes that:

• She felt "pressured to provide owing medication and leave certificates for [Mrs Eckford's] family members against [her] better judgment."
• Previously, Mr Negus assumed responsibility for stock checks. However, in the last year of her employment, the retail manager requested that she conduct monthly stock checks of the dispensary. She did not manage to complete a stock check every month and encountered significant out of balance issues from the first time she did a stock check. She reported these issues to Mrs Eckford and Mr Negus. She had great difficulty and "failed to balance the DDs, it was a mess". She notified Mrs Eckford and referred the problem to Mr Negus on multiple occasions.

1. The Respondent notes duties undertaken at the instruction of Mr Negus as:

• Complying with Mr Bowen's occasional requests, including: providing and/or dispensing prescription medication for him, his family members and his associates when directed.
• Supplying medication without prescription, with Mr Negus usually telephoning to give instructions on the patient's name and details of the medication.
• Complying with occasional requests to submit a National Diabetes Services Scheme claim on occasions that Mr Negus had not done so.
• Packing Webster packs for patients that Mr Negus had not completed.

1. In her Response the Respondent also states that:

• She had no formal induction or training particularly related to the dispensary work. She was dependent on a dispensary communication diary containing handover notes from Mr Negus (that were - in her view - often inadequate) and telephone calls or text messages with Mr Negus for urgent matters.
• A folder in the dispensary contained instructions but was complicated and obviously out of date.
• Leave was not granted easily, which resulted in her regularly working when ill. She claims that she was told it was her responsibility to find a locum if she was sick, or if she needed an extended period of time off. In practice however, Mr Negus "did not tolerate locums working in the dispensary" which resulted in her working in excess of 10 days straight on occasions. In her last year she took eight days holiday leave on two occasions, both of which she spent in a health retreat to manage her mental health issues, due in part to difficulty in dealing with ongoing and escalating stress and tension in the workplace.
• She felt discomforted by "some appalling behaviour yelling and abuse between family members [of Mrs] Lee Eckford", and unsupported by the retail manager's daughter who was employed to assist the Respondent but left her to attend to duties assigned to the daughter. After a meeting to attempt to resolve inter-staff issues, Ms Haydon was left so distressed that she "called Mr Negus and pleaded for him to take over my shift."
• She understood it was a legal requirement to conduct a stock check of drugs of addiction each March and September. She attempted this task on several occasions when she was on duty in March and September, but had difficulty balancing the inventories and found missing entries, duplicate entries, and errors. On the occasions she conducted these checks it took her several days to complete the task. There were items that she could not successfully balance. She left notes for Mr Negus to double check the items in question. She claims that it became clear that he preferred to do this task himself, telling her "to leave the DDs for him". At the time she assumed this was because he thought she was too slow and failed to balance all the items despite spending hours attempting to do so.
• She did not see any written procedures regarding making entries in the drug register. She understood that it was the pharmacist who receives or dispenses the stock that is required to enter it into the drug register on the same day, but notes that this did not always happen. She "often left this to the end of the day and sometimes ran out of time to make the entries, on other occasions [she] did not make entries because the register didn't balance and [she] could not find a solution to the problem." On the days that she did not make or complete all the entries she "usually left a note for Mr Negus alerting him to the problem."
• Initially entries were made by hand in a register. This was changed to a computer program in late 2016. She did not receive any training on how to operate the software and had to work it out for herself. Subsequently, she was never confident in using the software. She expressed concern that there was little control over who had access to the drug register. Anyone, including locum pharmacists, could add themselves to the user list on the software and create a password. At some point, passwords had to be changed every few months and she had difficulty recalling her (then) current password so she wrote it down on a Post-it note and left it in the dispensary under the keyboard. She now recognises that this was poor judgment.

Medical evidence

1. The Respondent provided the Tribunal with a report by Dr Robert Gertler, Consultant Psychiatrist Emeritus, whose report is based on his consultations with the Respondent, which the Respondent had sought for the purposes of this hearing. In the following extract from Dr Gertler's report dated 22 February 2021, he notes his understanding of the Respondent's clinical history with a focus on her mental health and associated diagnoses: "Ms Haydon has a long and extensive psychiatric history. It commenced in her late teens when she was diagnosed as suffering from [binge eating], a condition which for the most part has been under control though has been aggravated at times of stress as occurred in the last 2 years. Despite it being present it appears not to have interfered significantly if at all with her ability to cope on a personal and academic/professional level. There is also a history of episodic major depression. This also commenced when Ms Haydon was in her late teens. It appears to have been associated with difficulties she was having of an interpersonal nature whilst studying at the University of Sydney and residing in a college there. She became depressed to the extent that she required psychiatric intervention and a period of time away from her studies. After graduating from the University of Sydney in Pharmacy Ms Haydon appears to have coped until 2010 when her father passed away and she had difficulty in copying, having been extremely close to him and having a somewhat ambivalent relationship with her mother. Her depression worsened and was aggravated by the fact of her being in a severely dysfunctional relationship involving physical and sexual violence. This led to a further hospitalisation in a psychiatric unit for an extended period of time. Although from 2012 Ms Haydon's depression appears to have been brought under control, she did require maintenance anti-depressant medication which did not interfere with her ability to cope with the demands of her work as a pharmacist. With continuing unwanted contact and stalking by her previous partner however, Ms Haydon's mental health slowly deteriorated. This was aggravated by long standing difficulties which she had experienced in relating to others, in this case in a workplace situation, and the alleged harassment and bullying to which she was subjected at her place of work. It was in the context of the above-mentioned stressors that Ms Haydon began to abuse opiates and this continued for an extended period of time. It was after a former work colleague made allegations which led to an investigation that Ms Haydon was stood down. There was a previous history of post-traumatic stress disorder brought about by the circumstances of her dysfunctional personal relationship from 2010, however those symptoms have largely subsided at the present time and Ms Haydon has not had any further contact with her previous partner for several years. There has been a previous diagnosis of autistic spectrum disorder which could explain the difficulties which Ms Haydon has always had in interpersonal relationships. The personality characteristics of that disorder would in the past have made it difficult for Ms Haydon to deal with intimate relationships as occurred and to question her judgement in that regard. It is possible however that in the context of being an only child, of being extremely close to her father and much less close to her mother, that Ms Haydon was not able to develop the social skills required to relate easily to others. The fact that Ms Haydon used opiates illicitly for a period of more than 12 months, and the quantities involved, are consistent with the fact that she developed a dependency to that drug. Surprisingly, she found that when she ceased using the opiates that there was little if any withdrawal effect and she no longer has a craving for opiates or indeed for any type of drug.
2. Dr Gertler considers that Ms Haydon's treatment for her psychiatric condition has been appropriate, including her treatment for depression, binge eating and personality issues. He notes that treatment for her previous opiate dependence has not been required nor will it be required in the foreseeable future, given she has ceased to use opiates and does not have any craving for them. Dr Gertler notes that Ms Haydon now feels more comfortable in social settings, as is apparent from her developing and pursuing an interest in sailing and improving her relationship with her mother, with whom she has been living for the past two years. He notes that Ms Haydon is compliant with the various aspects of her treatment and has also successfully completed a Master's degree through the University of Newcastle and been working as a disability support worker for some six months. She is also bringing her binge eating disorder under control, having lost a significant amount of weight.
3. Regarding insight, Dr Gertler is of the opinion that Ms Haydon has insight into the facts surrounding the Complaint. She is remorseful and distressed by what occurred and remains quite depressed about the period of time involving the Complaint. He states that this was apparent during the assessment "when she was frequently tearful when discussing what had occurred and what had led to it in terms of the stresses to which she had been subjected over a period of time. She admitted to taking the drugs." Dr Gertler is of the opinion that Ms Haydon does have sufficient insight into her misconduct.
4. In answering a question about whether the Respondent demonstrates sufficient insight into her misconduct so that in the future she could practise safely, Dr Gertler states that Ms Haydon has, over the years, been compliant with treatment of a psychological and psychiatric nature and would, in his opinion, be quite prepared to seek appropriate assistance from healthcare professionals should significant stress develop in the future.
5. As to whether Ms Haydon's diagnosis presents a risk in the future, Dr Gertler is of the opinion that Ms Haydon has suffered from several episodes of significant depression since her late teens and as such is vulnerable to further such episodes should she again be subjected to unexpected or prolonged stressful situations. He adds, however, that she is under appropriate psychological and psychiatric treatment at the present time and that any deterioration in her emotional state would, in his opinion, be addressed by her treating healthcare professionals, particularly in the context of her being more easily able to disclose the effects of that stress on her because of the beneficial treatment effect on her personality.
6. Dr Gertler supported the proposition that conditions be imposed to ensure the Respondent can practise safely. He wrote that: "Conditions in my opinion, should include ongoing treatment by the psychologist and the psychiatrist as at present until such time that she is felt to be stable and symptom free, not requiring intensive treatment other than perhaps maintenance anti-depressant medication to prevent relapse. As well, she should practise in an environment in which she has the support and is able to trust, the relevant senior staff. In that context she needs also to be supervised in documenting the relevant information as it relates to scheduled drugs and the dispensing of prescriptions."

Applicant's submissions

1. The Tribunal was provided with substantial submissions by the Applicant. The submissions deal with issues of standard of proof. Both the Tribunal and the Applicant accept that the burden of proof rests with the Applicant. The Tribunal acknowledges the Applicant's extensive and helpful analysis of all of the evidence provided in those submissions. It is not necessary to repeat the Applicant's submissions on the factual matters in any detail. However, the Applicant's submissions relating to the seriousness of the alleged conduct the subject of the Complaint, appropriate orders and costs are of significance for the Tribunal to reflect on. "The seriousness of the alleged conduct the subject of the complaint 206 S145D(1) of the National Law provides as follows: 'Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration.' 207 The National Law does not provide a definition of the word "serious". 208 The Commission submits that the Tribunal should find on the balance of probabilities that Ms Haydon's conduct was of an objectively serious nature. 209 In relation to the breaches of the Poisons and Therapeutic Goods legislation, the Commission submits that the scale of such breaches was significant. The conduct also extended over a significant period including over a period subsequent to when the PSU commenced its investigation. Appropriate Protective Orders 210 The Commission submits that given the gravity of the conduct and Ms Haydon's denial of taking and consuming Endone from the Pharmacy and the issues the subject of the proceedings, the appropriate order for the Tribunal to make is cancellation of Ms Haydon's registration. 211 The Commission submits that Ms Haydon's conduct in the present case is clearly serious and capable of attracting the above order. 212 The Commission seeks a period of disqualification of three years. The Commission submits that it would be in the public interest for the Tribunal to impose a non-review period of three years to enable Ms Haydon to reflect on her prior conduct and to be in a position to demonstrate fitness, reformation of character and insight in any future re-registration application. 213 Further, any future application for re-registration brought by Ms Haydon would call on the Tribunal's resources and the resources of the Commission. 214 The Commission accordingly submits that a cancellation period of three years is appropriate in the circumstances. 215 In Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 (27 November 2015), the Tribunal concluded at [42] to [46] as follows: 'The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in health professions. In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": (a) any need to protect the public against further misconduct by the practitioner; (b) the need to protect the public through general deterrence (of other practitioners); (c) the need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) the maintenance of public confidence in the profession; (e) the desirability of making available to the public any special skills possessed by the practitioner. This statement was approved in Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24] applying the National Law. In HCCC v Do [2014] NSWCA 307 Meagher JA, with whom the other members of the New South Wales Court of Appeal agreed, reflected the first four of those factors when he stated: … In HCCC v Do, the Court of Appeal held that the Tribunal had fallen into legal error by focusing only upon the risk of recurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by s3A and 4 of the National Law: [40].' 216 In Lee v HCCC [2012] NSWCA 80 219 Barrett JA at [20] to [21] considered the exercise of powers by Tribunals to make protective orders and concluded: … As observed by Basten JA in Prakash v HCCC [2006] NSWCA 153 at [91]: 'The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.' 217 The Commission submits that the Tribunal should be satisfied that the proposed orders are necessary to protect the public, are in the public interest and there is a need for general deterrence in this matter. Costs 218 The Commission submits that Ms Haydon should be ordered to pay the Commission's costs. In relation to the actual hearing, the costs should be apportioned between Ms Haydon and Mr Negus equally. 219 An order for costs is discretionary, however, it is commonly held that costs will follow the cause. 220 Clause 13 of Schedule 5D of the National Law provides as follows: The Tribunal may award costs (1) A Tribunal may order the Commission (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. 221 In HCCC v Philipiah [2013] NSWCA 342 Meagher JA, Emmett JA and Beech-Jones J held at [44] and [46] in relation to costs orders and the consideration of a Respondent's individual financial circumstances: 'It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside.' 222 Accordingly, the Commission submits that it would be appropriate for a costs order to be made in these proceedings as sought by the Commission."

Respondent's submissions

1. The Respondent provided the Tribunal with two sets of submissions: the first dealing with the issue of the Respondent not giving evidence and the second comprising the Respondent's general submissions in regard to her conduct and the orders which the Respondent believes to be appropriate. The Respondent's submissions on the issue of the Respondent not giving evidence are as follows: "… 1. The HCCC complains that the Respondent did not give evidence. 2. In Lucire v Health Care Complaints Commission the [T]ribunal stated: 127. … In Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451, Hodgson JA (with whom Beazley and McColl JJA agreed) noted that an explanation could be proffered in disciplinary proceedings without the practitioner (in that case a barrister) entering the witness box: at [28]. 128. It was further held in Azzopardi that it should be made clear to a jury, and is therefore relevant to the obligations of the Tribunal, that it need not draw an adverse inference in the absence of a relevant explanation: see Azzopardi at [67]. The Tribunal would thus be entitled to take into account the circumstances in which the explanation was not forthcoming and would also be entitled to bear in mind the principle that the burden remained on the Commission to establish affirmatively the facts and inferences required to support the complaint. … 3. The summation from the above is that a specialist Tribunal is not obliged to draw an adverse inference in the absence of an explanation from the respondent. Such an obligation would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation. The Tribunal had not held that it was unable as a matter of law to draw adverse inferences. Further, although the Tribunal noted difficulties created for the fact-finding process by the failure of the practitioner to provide explanations, the Commission was generally not able to identify precise inferences which should have been drawn. 4. The Respondent has admitted to the particulars of the complaints as made against her and conceded the consequence of those factual admissions. 5. It is the HCCC's burden to satisfy the Tribunal, applying the Briginshaw gloss, of the factual allegations including the question of quantum. It is not the Respondent's burden to assist the HCCC to prove the allegations made against her. 6. Notably there is medical evidence explaining the Respondent's not giving evidence: i. Dr Gertler, psychiatrist, 22 February 2021 notes the diagnosis of Asperger's; ii. Dr L Barot, the Respondent's treating psychiatrist noted on 20 August 2019 that the Respondent felt she would "cave under pressure" and say whatever she needs to so that she can get out of there; iii. Dr L Barot, the Respondent's treating psychiatrist noted on 7 January 2020, that the Respondent was concerned that if she was questioned by police she would end up saying what the police wanted to hear rather than speaking the truth; iv. Dr L Barot, the Respondent's treating psychiatrist noted on 10 September 2020 that the Respondent is concerned about her default coping strategy of avoidance and that she is struggling to engage with the issue. 7. There is evidence of the Respondent's acknowledgement of the seriousness of the actions and remorse in the report of Dr R Gertler." (Footnotes omitted.)
2. The Respondent's general submissions in regard to her conduct and the orders which the Respondent believes to be appropriate are as follows. "… Proceedings and complaint: 4. The Health Care Complaints Commission ("HCCC") prosecutes the action on the basis, inter alia, [that] the Respondent engaged in conduct that amounts to unsatisfactory professional conduct within that meaning prescribed in section 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW) ("National Law") as the Respondent: i. was the pharmacist in charge at the Pharmacy when large amounts of schedule 8 medications were unaccounted for; ii. failed to keep proper records and properly maintain the electronic DD register; iii. engaged in various other activities including dispensing medications inappropriately and various other complaints identified in the complaint. … 7. The factual allegations made against Ms Kristen Haydon are largely admitted aside from the question of quantum in relation to the allegations at particulars 1 through 3 of complaint 1. 8. The Respondent, by way of an Amended Reply dated 3 March 2021 and filed with leave on 5 March 2021, admits that the conduct complained of amounts to: i. Unsatisfactory professional conduct pursuant to sections 1396(1)(a) and (I) of the National Law; ii. Unsatisfactory professional conduct pursuant to section 13913(1)(e) of the National Law; and iii. Professional misconduct pursuant to section 139E of the National Law when considering the allegations cumulatively. 9. The Respondent accepts that the above complaints, and admissions, are incredibly serious in nature. The Respondent accepts that the protection of the community as a whole is paramount. 10. The Respondent's non-disputation of the complaints and submissions concerning the penalty to be imposed (see below) can be accepted as evidence of remorse. Standard of proof: 11. The Respondent has admitted the conduct as pleaded subject to the issue of quantification. 12. In HCCC v Ford [2012] NSWOPT 1 the Tribunal provided: '4. Although the standard of proof required to establish a complaint in this jurisdiction is essentially the civil standard, because of the seriousness of the allegations and the gravity of their consequences, the Tribunal must be 'comfortably satisfied' that the particulars of the Complaint have been established. This qualifies the civil standard that is applied by the Tribunal.' 13. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Dixon J (as he then was) at 362-363 said: 'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences ... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.' Quantum: 14. Regarding the allegations in particulars 1 and 2 of Complaint 1 the Respondent submits that the HCCC has not made out the question of quantum as alleged. 15. The Briginshaw principle applies to the quality or sufficiency of the evidence available, as Mason CJ, Brennan, Deane and Gaudron JJ held in Neat Holdings Pty v Karajan Holdings Pty Ltd (1992) 110 ALR 449-450: '...the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found." Statements to that effect should not, however, be understood as directed to the standard of proof.' 16. The evidence sought to be relied upon by the HCCC concerning the quantification of the various schedule 8 medications said to be unaccounted for is largely unreliable. The Respondent took issue with the material adduced at Tab 2(b) of Exhibit 1. The conclusions found in same offer little assistance especially when considering the Briginshaw gloss. 17. Mr Gavrilovic (relied upon by the HCCC), conceded in oral evidence (and in reference to his final report dated 16 November 2018 being Exhibit 12) that in relation to the Respondent he could only be confident that the following medications could be attributed to her: i. 600 Endone 5 mg tablets; ii. 100 Kalma 0.5 mg tablets; iii. 100 Kalma 2 mg tablets; iv. 3380 Mayne Pharma Oxycodone 5 mg tablets; v. 840 Oxycodone SZ 10 mg tablets; vi. 140 Oxycodone SZ 20 mg tablets. 18. The Respondent submits that the above is the best evidence available to the Tribunal concerning the question of quantum. Medical background: 19. The Respondent has a long, and extensive, medical history in relation to her mental health complaints. 20. The Respondent relies upon the reports of Dr R Gertler dated 22 February 2021 and 26 February 2021… 21. Dr Gertler notes: … v. The doctor recommends conditions be imposed including ongoing treatment by a psychologist and a psychiatrist and, perhaps, maintenance on an anti-depressant medication to prevent relapse. In addition, and notably, the doctor opines that Ms Haydon should practice in an environment in which she has support and is able to trust the relevant senior staff and needs supervision in documenting relevant information as it relates to scheduled drugs and the dispensing of prescriptions. w. In a report of 26 February 2021, Dr. Gertler notes that he had mistakenly referred to Ms Haydon suffering from bulimia and corrected it and stated that Ms Haydon suffers from a binge eating disorder. 22. There can be no contest that the Respondent has a long medical history in relation to her mental health complaints relating to various issues including eating disorders, depression, loss of her father and significant difficulties in a domestic relationship including violence. 23. The Respondent has been subject to a mental health treatment regime which has existed in various iterations and in various periods since at least 2004. 24. The above is not proffered as an exculpatory explanation but can give the conduct complained of and the Respondent's background some context. 25. The Respondent has suffered from a period of abuse of schedule 8 medications however the evidence is that this has ceased. Impairment: 26. The HCCC by way of an amended complaint has asserted that the Respondent has an impairment and as a consequence of same is not competent to practice as a pharmacist. 27. Impairment is defined in s 5 of the National Law insofar a registered health practitioner is concerned as follows: "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; 28. In addition the HCCC assert the Respondent is not competent within the meaning of s 139 (a) of the National Law to practise. Section 139 (a) provides as follows: A person is "competent" to practise a health profession only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; 29. There can be no avoiding the terrible impact the Respondent's mental health has wrought on her life including her career and her personal relationships. Her present acknowledgement of not only her actions but the effects of same and the difficulty with abuse of drugs evidences contrition on her part. The difficulty concerning mental health condition is the often belated self-recognition by an individual of the condition and the precipitating factors. The eventual recognition leads to treatment. Paragraph 22 above is repeated. 30. The only evidence concerning impairment and whether the Respondent is competent is that of Dr Gertler. Dr Gertler provides: i. The Respondent likely had a dependency to opiates however same is not present currently, no treatment is required as the Respondent has ceased use of opiates and has no craving for same. ii. The doctor opines that the treatment for her psychiatric condition has been appropriate. iii. The doctor notes that Ms Haydon is compliant with the various aspects of her treatment whether psychological or psychiatric, psycho-pharmacological or dietetic and has also successfully completed studies and is working as a disability support work for some six months. The doctor notes she has her binge eating disorder under control. iv. The doctor notes that Ms Haydon has showed insight into the facts surrounding her complaint, she is remorseful, distressed by what occurred and remains quite depressed for the period involved in the complaint. Notably, the doctor identified that Ms Haydon was frequently tearful when discussing what had occurred, what had led to it in terms of the stressors to which she had been subjected over a period of time. Ms Haydon admitted to taking the drugs. 31. There is no evidence concerning a lack of technical knowledge or ability to properly undertake the role of a pharmacist. This submission does not detract from the admitted conduct but identifies there were no complaints concerning the Respondent not holding the necessary knowledge to undertake the work required. 32. Whilst Dr Gertler identifies that Ms. Haydon has suffered from several episodes of significant depression since her late teens and is vulnerable to further such episodes should she again be subjected to unexpected or prolonged stressful situations. The doctor qualifies this comment by noting that Ms. Haydon is under appropriate psychological and psychiatric treatment and any deterioration in her emotional state would be addressed by her treating health care professionals. In addition, the doctor notes that Ms. Hayden is now more easily able to disclose the effects of that stress on her because of the beneficial treatment effect on her personality. 33. The above does not evidence a current impairment. Quite the opposite, Dr Gertler opines the treatment regime currently entered into indicates that whilst there is an underlying mental health condition same is under control and responding to treatment. 34. This is further evidenced by the efforts at study and employment as a disability support worker. Penalty: 35. Section 3A of the National Law, which has particular relevance in the circumstances of this matter, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 36. The Respondent acknowledges that the paramount purpose of these proceedings is not to punish the practitioner, but to protect the public (Clyne v NSW Bar Association (1960) 104 CLR 186), to uphold the high standards of the profession and to act as a deterrent to other practitioners engaging in like conduct. This is well explained by Meagher J in Health Care Complaints Commission v Do [2014] NSWCA 307: '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.' 37. The Respondent has not sought to re-register as a pharmacist since allowing the registration to lapse on, or about, 31 December 2018. Presently the Respondent has not undertaken work as a pharmacist since late 2018 in any capacity. This is a period of greater than 2 years and should be taken into account when considering the penalty to be imposed. 38. In the intervening period the Respondent has: i. engaged with her treating specialists; ii. engaged in hobbies and exercise; iii. undertaken further study; and iv. undertaken work in a disability support role. 39. The Respondent has, albeit belatedly, acknowledged the problem of abuse in the relevant period to Dr Gertler. 40. The admitted conduct is of a sufficiently serious nature to justify suspension of the Respondent's registration. 41. It is acknowledged by the Respondent that a period of suspension before being permitted to reapply for registration is necessitated both by the need for a general deterrence message to the pharmacy profession concerning such a serious abuse of position, and by reference to the need for the protection of the public. An order of suspension is not a trivial order: Medical Board of Australia v Dr ZOF No. 2 (Review and Regulation) [2015] VCAT 379 at [17]. The making of an order for suspension will have a "devastating effect on one's financial position, one's standing in the community, one's practice and one's office establishment": Dr ZOF at [17]. 42. The Respondent submits that a period of suspension would not only satisfy the requirement of the protection of the public but also address the issue of deterrence and provide time for the Respondent to continue in her treatment regime with her mental health treating professionals. 43. Whilst the Respondent allowed her registration to lapse on 31 December 2018 it is acknowledged that the Tribunal (pursuant to findings of unsatisfactory professional conduct and professional misconduct) under s149C(4)(a) of the National Law would acknowledge that if the practitioner was still registered as a pharmacist the Tribunal would have cancelled her registration. 44. On the expiration of the suspension period it is submitted that a further avenue to ensure the protection of the public is attaching conditions to the registration of the Respondent. Notably Dr Gertler recommends conditions be imposed including ongoing treatment by a psychologist and a psychiatrist and, perhaps, maintenance on an anti-depressant medication to prevent relapse. in addition, the doctor opines that the Respondent should practice in an environment in which she has support and is able to trust the relevant senior staff and needs supervision in documenting relevant information as it relates to scheduled drugs and the dispensing of prescriptions. 45. It is submitted that the question of possible relapse of condition not sufficient to justify cancellation of the Respondent's registration. Where probable permanent unfitness to practise has not been demonstrated, and censure of the practitioner is otherwise required by the circumstances of serious demonstrated fault in the impugned conduct, suspension rather than removal of practising rights will be the more appropriate protective order: NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [26] to [27]. 46. It is submitted that conditions can be implemented (following a period of suspension) that might ensure that the Respondent can safely practise pharmacy in the future pursuant to section 149 of the National Law. The possible avenues include supervision upon future practice, health conditions including continued mental health treatment to continue engagement with the mental health conditions or a requirement to undertake an educational course.
3. That concluded the hearing and the matter was adjourned for Decision by the Tribunal.

Decision and Reasons

1. Having read the evidence contained in the exhibits provided to the Tribunal and having heard the evidence presented by the Applicant, including the PRU reports, and the evidence contained in documents provided by the Respondent, and having considered the expert reports of Ms Croker and Dr Gertler and taken into account the Applicant's and the Respondent's submissions, the Tribunal is comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct.
2. The Tribunal is satisfied that this leads to a decision as to whether the Respondent should be entitled to be practising as a pharmacist and what disciplinary action would be appropriate in the particular circumstances of the matter. In considering appropriate disciplinary findings, the Tribunal had regard to a number of factors. These included the transcript of the s 150 examinations, the report of Ms Croker in respect of each and every element of the Complaint, and the approach of the Respondent to the complaint against her. The Tribunal had regard to the report of Dr Gertler and although Dr Gertler believes that the Respondent is capable of working under certain conditions, it does not follow that the Respondent does not have an impairment preventing her from working as a pharmacist. The Tribunal did not have the benefit of hearing in person evidence from the Respondent or of seeing the Respondent cross-examined by the Applicant, to assist it with a view on the general approach of the Respondent to the Complaint and her conduct. For this reason, the Tribunal had difficulty forming a concluded view on the Respondent's insight into her conduct. While the Respondent had provided written documentation in regard to her position on each and every one of the particulars of the Complaint, the weight which the Tribunal was able to give to that evidence has to be limited as it has not been tested. The Respondent sought to place considerable blame on Mr Negus, but her allegations in that regard could not be tested on cross examination by the Applicant or Mr Negus, or in answer to questions from the Tribunal. The allegations made by the Respondent against Mr Negus are in direct conflict with evidence given by Mr Negus in the action against Mr Negus, which ran concurrently with the action against the Respondent. The Tribunal finds that the breaches of the obligations of the pharmacist as set out in the Complaint are extremely serious and should not have been committed by a pharmacist with her level of experience. The Respondent sought to argue that the Applicant failed to prove the quantities of drugs missing were attributable to the Respondent. The Tribunal is comfortably satisfied that it can rely on the quantities referred to in the PRU reports as being correct and largely attributable to the Respondent.
3. In addition to the allegations against the Respondent relating to her impairment, a large part of the allegations relate to the handling and control of Schedule 8 drugs which are strongly regulated due to their highly addictive nature and the extreme risk of abuse and misuse. In addition, the responses given by the Respondent to the missing drugs and the very significant quantity of missing drugs do not dispel the concern of the Tribunal as to the background reasons for the conduct of the Respondent in the diversion of those drugs from the Pharmacy's stock.
4. The Tribunal is very concerned about the extent of the diversion of drugs which can only be attributed to the Respondent, based on the evidence available to the Tribunal from the PRU reports.
5. In the circumstances, the Tribunal is comfortably satisfied that, had the Respondent been registered, the Tribunal would have cancelled her registration and provided for a non-review period of three years. This is a period which the Tribunal believes is appropriate and necessary to send a message to the profession and to the public that the protection of the public and the standing of the profession are significant.
6. In coming to this view, the Tribunal had regard to the decision in Health Care Complaints Commission v Do [2014] NSWCA 307, in which the Court of Appeal held that the Tribunal had fallen into appealable error by focussing only upon the risk of reoccurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct nor the full implication of the finding that the practitioner's skill and judgment had fallen significantly below the standard reasonably expected. In so doing, the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by ss 3A and 4 of the National Law.
7. The Tribunal also believes that it is appropriate to make a prohibition order preventing the Respondent from working in any environment in which she could possess, handle, or control Schedule 8 drugs.
8. In addition, the Tribunal is comfortably satisfied that a non-review period of three years is necessary to allow time for the Respondent to deal with the significant issues raised in the complaint against her and to deal with the numerous health and psychological problems raised by Dr Gertler in his report on the Respondent.
9. In respect of costs, the Applicant sought an order that the Respondent pay the Applicant's costs and that in relation to the actual hearing, the costs should be apportioned between the Respondent and Mr Negus equally.
10. The Tribunal is comfortably satisfied that an order for costs should be made in favour of the Applicant. However, having regard to the fact that the Respondent failed to concede many of the allegations against her, which had the effect of extending the time spent in respect of the Respondent's aspect of the joint case with Mr Negus, and noting that almost a full day was spent by the Respondent in objections to documents and evidence being tendered, the Tribunal concludes that it is appropriate for the costs to be divided between the Respondent and Mr Negus on the basis of two thirds by the Respondent and one third by Mr Negus.

Recommendation

1. While the Tribunal is not in the position to order the Respondent to undertake any particular action during the non-review period, the Tribunal strongly recommends to the Respondent that she use this period to undertake active steps to overcome her impairment and in addition undertake training and seek assistance to gain insight and knowledge into what is expected of a pharmacist of her level of experience.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct in respect of her behaviour while working as a registered pharmacist. 2. The Respondent suffers from an impairment. 3. Had the Respondent been a registered pharmacist, the Tribunal would have cancelled her registration with immediate effect. 4. The Respondent shall not be entitled to apply for re-registration as a pharmacist for a period of three years from the date of these orders. 5. Until such time as the Respondent is re-registered as a pharmacist the Respondent may not work in any role in which she may possess, handle or control any Schedule 8 drugs. 6. The Respondent shall pay two thirds of the Applicant's costs as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2021