Health Care Complaints Commission v Lal

Factual background

1. 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.
2. 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

1. During the period 14 October 2015 to 15 March 2018 the following medication was dispensed to this patient, from the pharmacy of which the respondent became a joint proprietor on 25 July 2016: "1410 oxycodone 20 mg 2688 oxycodone 40 mg 2166 oxycodone 80 mg"
2. 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.
3. The respondent commenced dispensing for this patient from 25 July 2016.
4. Multiple prescriptions for oxycodone in various strengths were regularly dispensed to this patient on the same day. On 17 occasions the respondent was the dispensing pharmacist. The respondent typically dispensed on the same day 28 each of oxycodone 20 mg and 80 mg, and 56 each of oxycodone 40 mg. The dosage of each was initially recorded as one to be taken four times a day. The second script of 28 oxycodone 40 mg was habitually written as a private script, the remaining being Pharmaceutical Benefits Scheme (PBS) scripts. From 31 March 2017 onwards the dosage changed to one tablet to be taken four times a day two to three days each week.
5. This pattern of multiple prescriptions was dispensed by another pharmacist in the respondent's pharmacy on 13 March 2017. Even allowing for this extraordinarily high dosage which should have lasted the patient for seven days, the respondent dispensed the same multiple prescriptions to this patient on 17, 22 and 31 March 2017. Even though the dosage had changed, the same multiple prescriptions were dispensed by other pharmacists in the respondent's pharmacy on 6, 13 and 20 April 2017. The respondent then dispensed the same multiple prescriptions on 26 April 2017 and 3 May 2017. The respondent and one other pharmacist in his pharmacy dispensed between them the same multiple prescriptions on 10 May 2017. The respondent again dispensed the same multiple prescriptions on 17 and 24 May 2017. The pharmacy records demonstrate further dispensing of these same multiple prescriptions by the respondent and other pharmacists employed in his pharmacy to this patient until December 2017. This pattern is interspersed with many other instances of the frequent and regular dispensing of oxycodone 80 mg to this patient by the respondent and others in his pharmacy.
6. The respondent dispensed a total of 476 oxycodone 20 mg, 840 oxycodone 40 mg and 532 oxycodone 80 mg to this patient. On 33 occasions the interval between each supply of oxycodone was between two to four days, including dispensing by the respondent on 6 and 17 March 2017, 12 July 2017, 17 November 2017 and 5 January 2018.
7. In her expert report Dr Benson noted that 53 of the 230 oxycodone prescriptions dispensed to this patient were private prescriptions. Furthermore, the identity of the dispensing pharmacist was not recorded for 37 of these prescriptions.
8. 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 was no supporting documentation in the pharmacy records which would corroborate that this occurred.
9. In responding to the PRU investigation report concerning this patient the respondent, jointly with his co-proprietor Priya Patel, described the patient as difficult to manage with a number of comorbidities. He said he had discussed the patient's circumstances with his treating doctors who confirmed that he should continue to take high opioid doses with the aim of gradually reducing the dosage. He relied on the integrity and expertise of the doctors concerned.
10. With regard to a submission made by the respondent to the Pharmacy Council of NSW (Pharmacy Council) concerning increased doses prescribed for this patient, 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. 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."
11. Dr Benson referred to an admission 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 Lal 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 thought 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 and if Dr Ochoa had failed to respond appropriately this would have been an indication that his practice significantly departed from professional standards and posed a risk of significant harm to the public. By reason of the respondent's duty of care concerning the welfare of patients incorporated in clause 6.3 of the Pharmacy Board of Australia, "Code of Conduct" (March 2014) Dr Benson said that if Dr Ochoa had not changed his practice concerning the issue of private prescriptions for oxycodone, Dr Ochoa should have been reported to the Australian Health Practitioner Regulation Agency (AHPRA) by the respondent 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. …
12. 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 for management of opioid dependence as the patient was at significant risk of harm. In this regard Dr Benson referred specifically to the provisions of clause 6.3 of the Pharmacy Board of Australia, "Code of Conduct" (March 2014): "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."
13. Dr Benson also referred to clause 113 of the PTGR which provides that a pharmacist who supplies a drug of addiction on prescription must record the name of the person by whom the drug was supplied which would include entering the initials of the dispensing pharmacist in the dispensing software. She noted that the records provided demonstrated that on 37 occasions the initials of the dispensing pharmacist were not recorded for the dispensing of oxycodone to this patient. As a co-proprietor the respondent had a responsibility to ensure that pharmacists employed in his pharmacy were complying with all legal dispensing records.
14. 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 (CNS) depression and sedation and increased the risk of harm to the patient.
15. The failure to record the identity of the dispensing pharmacist was in breach of Part 3, Division 5, clause 55(1)(d) of the PTGR.
16. The supply of diazepam in all the circumstances was in breach 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.
17. In all the circumstances Dr Benson concluded that the respondent by reason of his overall responsibility as proprietor for oversight of the pharmacy had breached the provisions of this clause in that the pharmacy had supplied a restricted substance in a quantity that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances.
18. In all the circumstances Dr Benson concluded that by reason of each of these matters the respondent's conduct fell significantly below the standard reasonably required of a pharmacist with equivalent training or experience.

Patient B

1. 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 personally dispensed 420 oxycodone 8 mg. On six occasions during this period the interval between each supply of 28 tablets was between two to five days, including one date on which the respondent was the dispensing pharmacist, namely 17 November 2017. Of the 38 oxycodone prescriptions dispensed to this patient three were private prescriptions.
2. Dr Benson noted that this patient was prescribed a sustained-release preparation with twice daily dosing and therefore each prescription of 28 tablets should have lasted the patient 14 days. On 1 April 2017 the pharmacy dispensed 112 tablets from a private prescription which should have lasted the patient until 27 May 2017. However, the patient collected a further 28 tablets on 20 April 2017, 3, 17 and 20 May 2017. The patient effectively received a double supply during this two-month period. Furthermore, the respondent was directly involved in this over supply because he was the dispensing pharmacist on 17 and 31 May 2017.
3. It was the opinion of Dr Benson that the respondent should have refused to dispense the oxycodone prescriptions that were being collected early and should have asked that the patient be referred for management for opioid dependence as he was at significant risk of harm. She said that the care and treatment of this patient by the respondent fell significantly below the standard reasonably expected of a pharmacist with equivalent training or experience.
4. This patient was also supplied 1368 alprazolam 2 mg through the pharmacy during the period 8 June 2016 to 29 April 2018. The respondent personally dispensed 550 alprazolam 2 mg. On 31 March 2017 and 17 November 2017, the respondent dispensed 2 prescriptions for 50 alprazolam 2 mg tablets on the same day. Of the 29 alprazolam prescriptions dispensed through the pharmacy, 27 were private prescriptions.
5. Dr Benson noted that an authority from the NSW Ministry of Health is required to prescribe alprazolam or flunitrazepam for a drug dependent person or a non-drug dependent person who is prescribed these drugs continuously for more than two months. She saw no evidence that Dr Ochoa was in possession of this authority and the predominant use of private prescriptions was evidence to her that it was unlikely that he held that authority. The respondent dispensed this medication to the patient on 31 May 2017 which was 26 days early and would have meant that he had a potential oversupply of 52 tablets. On 17 November 2017 the respondent dispensed 100 alprazolam 2 mg tablets which should have lasted the patient for 50 days, giving him a sufficient supply until 7 January 2018. However, the respondent supplied a further 50 tablets on 8 December 2017.
6. On this history Dr Benson was concerned that the patient was either taking a higher dose than he had been prescribed or was diverting his medication. She assessed the respondent's care and treatment of this patient as falling significantly below the standard reasonably expected of a pharmacist with equivalent training or experience.
7. Dr Benson noted an explanation provided by the respondent that the patient had been prescribed additional dosage of alprazolam because of the need to supply personal medication during a prolonged hospitalisation. Dr Benson rejected this explanation as being appropriate. Firstly, she said that alprazolam is a drug that is at high risk of misuse, diversion and abuse and its supply in these quantities may pose a risk to the public. Moreover, most hospitals in Australia have pharmacies and at most the patient would only require his own medication for a short period.
8. Again, Dr Benson expressed the opinion that in this regard the respondent's care and treatment of this patient fell significantly below the standard reasonably expected of a pharmacist with equivalent training or experience.
9. During the period the respondent's pharmacy supplied 100 diazepam 5 mg to this patient. The identity of the pharmacists was not recorded, as was required by clause 55(1)(d) of the PTGR. In addition, the combination of diazepam as a benzodiazepine to this patient concurrently with high doses of OxyContin and alprazolam increased the risk of CNS depression and sedation and may have been potentially fatal in overdose, and increased the risk of harm to the patient. This provided an additional reason why the respondent's care and treatment of this patient fell significantly below the standard reasonably expected of a pharmacist with equivalent training or experience.

Patient C

1. 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 56 oxycodone 40 mg and 168 oxycodone 80 mg.
2. On 10 December 2017 the respondent dispensed 28 OxyContin 80 mg to this patient despite the patient having collected 28 of these tablets on five occasions since 4 November 2017, one of which was the previous day namely 9 December 2017.
3. Having assessed the dispensing records Dr Benson concluded that: "multiple pharmacists working at the pharmacy were involved in repeatedly supply of [the patient's] oxycodone at intervals less than 14 days and that this may have led to the potential misuse or the diversion of this medication."
4. Dr Benson concluded that in relation to the oversight of the supply of oxycodone the respondent's supervision and oversight of his employee pharmacists fell below the standard reasonably expected of a proprietor of a pharmacy with equivalent training or experience.
5. Dr Benson was also asked to comment on the dispensing of diazepam to this patient. Between 24 August and 21 September 2017, a period of 28 days, the patient was supplied 150 tablets which should have been sufficient for almost 6 months' supply at a dosage of 5 mg a day. However, the patient was dispensed a further 50 tablets on 10 November 2017. During the period 24 October 2015 to 5 September 2018 the patient was dispensed a total of 650 diazepam 5 mg. The identity of the dispensing pharmacists was not recorded, in breach of clause 55(1)(d) of the PTGR. Dr Benson concluded that in relation to the oversight of the supply of diazepam the respondent's supervision and oversight of his employee pharmacists fell below the standard reasonably expected of a proprietor of a pharmacy with equivalent training or experience.
6. Dr Benson also commented on the concurrent supply of all of this medication to this patient. 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 pharmacy proprietor with equivalent training or experience.

Patient D

1. During the period 23 April 2017 to 17 December 2018 this patient was dispensed 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 20 oxycodone 5 mg, 20 oxycodone 10 mg, 28 oxycodone 15 mg and 1060 oxycodone 20 mg.
2. On 36 occasions during this period the interval between each supply of OxyContin 20 mg was between three and five days including dispensing by the respondent on 8 and 30 October 2017; 12 and 19 November 2017; 17, 20, 24 and 31 December 2017; 3, 7, 14, 17 and 24 January 2018; 4 and 7 March 2018. On 45 occasions during this period the interval between each supply of Oxynorm (either 20×20 mg capsules or 20×10 mg + 20×5 mg capsules) was only three days including dispensing by the respondent on 25 June 2017; 27 August 2017; 8 October 2017; 20 and 31 December 2017; 3, 17 and 24 January 2018; 21 and 25 February 2018; 4 and 7 March 2018.
3. Of the 186 oxycodone prescriptions dispensed to this patient, 180 were private prescriptions.
4. Dr Benson noted the following matters of concern arising out of the dispensing history for this patient: 1. there were increasing doses of Oxynorm and OxyContin over time which indicated the patient was at risk of dependence and tolerance and at an increased risk of misuse or diversion of this medication 2. OxyContin is usually dosed twice daily because it is a modified release formulation. There were incidents of increased prescribing frequency ending at four times a day. This created a risk of cumulative toxicity which might be fatal 3. the fact that 97% of the prescriptions were prescribed privately should have raised a red flag to the respondent that a patient 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 4. the respondent should have discussed the concerns raised by the use of private prescriptions with the prescriber, Dr Malik, and reported the matter to AHPRA in the absence of a satisfactory explanation.
5. In all the circumstances the respondent's conduct fell below the standard reasonably required of a pharmacy proprietor and a pharmacist with equivalent training or experience.
6. Dr Benson also noted that this patient was dispensed during this period 500 diazepam 5 mg. All 10 prescriptions were private, and none of the identities of the prescribing pharmacists was entered in the pharmacy records. For reasons advanced with respect to her consideration of previous patients, Dr Benson was of the opinion that the concurrent supply of this medication with OxyContin posed a danger to the patient and should have been resisted. She was also concerned about the high incidence of private prescriptions and the failure to note the identity of the dispensing pharmacists. Each of these matters indicated that the respondent's conduct fell below the standard reasonably required of a pharmacy proprietor with equivalent training or experience.

Patient E

1. 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 960 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 24 November 2017. On another 27 occasions the interval between each supply was only two days, including dispensing by the respondent on 23 July 2017; 4 and 6 September 2017; 4 and 6 October 2017; 12, 24 and 29 November 2017; 18, 20 and 24 December 2017; 29 and 31 January 2018; 2 February 2018; 4 March 2018; 13 April 2018; 13 and 19 May 2018; 8 and 10 June 2018.
2. Dr Benson noted from the dispensing history that this patient was 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.
3. 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 pharmacist with equivalent training or experience.
4. This patient was also dispensed a total of 110 fentanyl patches 75 mcg/hr through the pharmacy during the same period. Of this the respondent personally dispensed this drug on 6 occasions, for a total of 30 patches.
5. Dr Benson noted that each supply of five fentanyl patches should have been sufficient to last the patient 15 days. By supplying the patches at intervals of between six and eight days including 8 June 2018 when the respondent was the dispensing pharmacist 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 pharmacist of equivalent training or experience.
6. 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.
7. The prescribed dose was one tablet twice daily when required resulting in a bottle of 50 tablets lasting the patient at least 25 days. On two occasions the interval between each supply was between three and four days.
8. 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 inappropriate quantities which were being dispensed and that the combination of fentanyl, oxycodone and diazepam created 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 proprietor pharmacist with equivalent training or experience.

Patient F

1. During the period 19 February 2016 to 31 October 2018 this patient was dispensed from the pharmacy a total of 7362 oxycodone 5 mg and 1646 oxycodone 40 mg plus naloxone 20 mg. The respondent personally dispensed 880 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.
2. In submissions made to the Pharmacy 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 22 August 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.
3. 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 Code of Conduct to take steps to protect patients from being placed at risk of harm posed by the conduct of a health practitioner.
4. In failing to do so Dr Benson said that the respondent's conduct fell significantly below the standard reasonably required of a proprietor pharmacist and a pharmacist with equivalent training or experience. He should have been alerted to the "red flags" which were present in the circumstances of this patient.
5. This patient was also dispensed during the same period 3308 diazepam 5 mg, 600 clonazepam 0.5 mg, 50 nitrazepam 5 mg, 100 oxazepam 15 mg and 75 temazepam 10 mg. None of the dispensing records disclose the name of the dispensing pharmacist.
6. 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 she 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 pharmacist with equivalent training or experience.
7. The failure of the respondent to ensure that the initials of the dispensing pharmacist were recorded in this patient's record also resulted in his conduct falling significantly below the standard reasonably required of a proprietor pharmacist with equivalent training or experience.

Patient G

1. 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 560 oxycodone 5 mg, 20 oxycodone 20 mg and 112 oxycodone 40 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.
2. In an explanation provided to the Pharmacy Council the respondent said that this patient was suffering from throat cancer. In that it was clear that a PBS authority had been issued, Dr Benson was not critical of the respondent's conduct in this regard.
3. However, 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 the respondent as a proprietor 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 pharmacist with equivalent training or experience.
4. The respondent was also under a duty as proprietor to ensure that the dosage was entered into the pharmacy records. In that he had failed to do so, Dr Benson said that his conduct fell significantly below the standard expected of a pharmacist with equivalent training or experience.

Patient H

1. 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 5400 of these tablets commencing from July 2016.
2. 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 9, 16 and 25 August 2017; 1, 15 and 24 September 2017; 18 and 25 October 2017; 19, 24 and 27 November 2017; 3 and 22 December 2017; 7 and 24 January 2018; 2, 9, 16 and 28 February 2018; 2 and 16 March 2018; 27 April 2018; 13, 20 and 28 May 2018; 4, 10, 20 and 25 June 2018; 13, 18 and 29 July 2018.
3. On 43 occasions during this period the interval between each supply of 40 5 oxycodone mg tablets was between one and five days, including dispensing by the respondent on 19 and 27 November 2017; 24 January 2018; 2, 9 and 28 February 2018; 2 and 16 March 2018; 27 April 2018; 13, 20 and 28 May 2018; 20 and 25 June 2018; 13, 18 and 29 July 2018.
4. 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.
5. 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 this 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 pharmacist with equivalent training or experience.
6. During the same period a total of 2700 diazepam 5 mg were also dispensed to this patient from the pharmacy. Forty six of the 54 prescriptions were private prescriptions. One thousand and fifty of these tablets were dispensed by the respondent.
7. On seven occasions the interval between each supply of 50 diazepam tablets was between two and five days including the dates on which the respondent dispensed this medication namely 9 and 14 March 2018 and 25 June 2018. The patient was prescribed a dose of one to two diazepam 5 mg tablets at night. The dispensing history far exceeds the required tablets. Dr Benson said that this should have raised concerns to all pharmacists including the respondent. Diazepam is a Schedule 4D restricted substance which "is subject to misuse and diversion and should be treated as a potential risk to the public." She said that the respondent's conduct fell significantly below the standard reasonably required of a pharmacist and proprietor pharmacist with equivalent training or experience.
8. In addition, Dr Benson expressed concern that concurrent dispensing to this patient of diazepam and oxycodone created a risk to his health and safety, for reasons which we have previously referred to in connection with other patients. She said that the respondent's conduct in this regard fell significantly below the standard reasonably required of a pharmacist with equivalent training or experience.

Relevant Codes of Conduct

1. The Pharmacy Board of Australia has developed Codes of Conduct which apply to the practice of pharmacy in Australia. By section 41 of the National Law, we are empowered to have regard to the contents of these Codes in assessing the conduct of the respondent in these proceedings: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession.
2. The Pharmacy Board issued a Code, Pharmacy Board of Australia, "Guidelines for Dispensing of Medicines" (September 2015) with effect on 7 December 2015. Relevantly for our purposes these guidelines describe the nature and extent of the professional responsibility of pharmacists when dispensing medication. In particular the guideline requires the following of a pharmacist: "In dispensing a prescription, a pharmacist has to exercise an independent judgement to ensure the medicine is safe and appropriate for the patient, as well as that it conforms to the prescriber's intentions. Where clarification is required, the patient or their agent should be consulted and if necessary, the prescriber contacted. … In conforming to the above principle, dose, frequency and route of administration, duration of treatment, the presence or absence of other medicines, the patient's illness, medication history, allergies, and other relevant circumstances need to be taken into account. When this information is collected by the pharmacist, relevant details should be recorded in the dispensing record, and where possible in the patient's health record, so that the safety of any future medicines that are prescribed and/or dispensed for that patient can also be assured."
3. We note in particular the emphasis on the responsibility of a pharmacist in dispensing a prescription to exercise an independent judgement. This must refer to a judgement independent of the prescriber where it is appropriate to do so.
4. We have available to us a transcript of the proceedings before delegates of the Pharmacy Council on 21 September 2018 when the respondent applied to have a suspension of his registration set aside. The respondent informed the delegates that prior to the suspension of his registration on 17 August 2018 he had been aware of guidelines issued by the Pharmacy Board, but it had been "years" since he had seen them. The failure of the respondent to make himself aware of these regulatory documents created a perilous situation for him. Each regulatory document contains the following important information: "Non-compliance with these guidelines and the practice standards and guidelines may be notified to the Board for appropriate action under the National Law. Under section 41 of the National Law, these guidelines can be used in disciplinary proceedings under the National Law or law of a co-regulatory jurisdiction as evidence of what constitutes appropriate professional conduct or practice for pharmacists. When considering notifications (complaints) against proprietors, the Board will give consideration to whether a breach of these guidelines has taken place. The Board will also have regard to the relevant legislation and requirements for pharmacy premises, and the practice standards and guidelines relevant to pharmacy practice."
5. The Board also developed the Pharmacy Board of Australia, "Guidelines for Proprietor Pharmacists" (September 2015), with effect on 7 December 2015. The respondent was a shareholder with his wife Priya Patel in a company structure which was the proprietor of the pharmacy which is at the heart of these proceedings. As such he was bound by these guidelines. They include the following: "1 Proprietors to maintain an active interest in how the pharmacy business is conducted If the proprietor/owner or partner-in-ownership pharmacist is not the pharmacist usually in charge of that pharmacy, he or she must vigilantly maintain an active interest in how the practice of pharmacy is being conducted. This is to ensure that the pharmacy operation is in accordance with: • any applicable state, territory or Commonwealth law • relevant Pharmacy Board of Australia policies, codes and guidelines • applicable professional practice and quality-assurance standards and guidelines, and • good pharmacy practice. If the proprietor finds that the practice of pharmacy does not operate in accordance with these, he or she must intervene to ensure that the pharmacy business is conducted properly. 2. Proprietor pharmacists cannot delegate their professional obligations A proprietor/owner or partner-in-ownership of a pharmacy cannot delegate his or her professional obligations, even if that partner is not regularly present at the pharmacy. This applies to pharmacists who own a pharmacy, or pharmacies, in all forms of business structures. 3. Responsibilities of proprietor pharmacists For the purposes of these guidelines, ensuring the pharmacy business is conducted properly includes ….. • maintaining an awareness of and responsibility for the services being provided including unregulated services, and goods being sold, particularly those known to be subject to abuse or misuse and those not regulated through the Therapeutic Goods Administration (TGA) or the pharmacy premises registering authorities ….."

Factual findings with respect to each of the complaints

1. During the course of the hearing counsel for the applicant, Mr D Fuller, carefully took us through all of the documentary material which formed the basis of the Particulars of the Complaints brought against the respondent. There is corroborative validated evidence supporting the dispensing history with respect to each of the patients. It is not necessary that we refer to each and every one of the documents and their contents, which occupy many hundreds of pages. We rely in particular on the expert report of Dr Benson, and we have regard also to the information provided by the respondent to which we have referred.

Complaint One

1. We are able to summarise the effect of the dispensing by the respondent to each of the patients as referred to in the report of Dr Benson. We note that in particular: 1. the quantities of Schedule 8 drugs and Schedule 4D drugs were contrary to the recognised therapeutic standard of what was appropriate in the circumstances and therefore contrary to clauses 109 of the PTGR for Schedule 8 drugs and 54 for Schedule 4D drugs. 109 Quantity and purpose of supply to be appropriate An authorised practitioner or pharmacist must not supply any drug of addiction 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. 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. 1. the respondent supplied Schedule 8 drugs concurrently with other Schedule 8 drugs and benzodiazepines contrary to the safe dispensing of medication 2. the respondent knew, or should have known, that the patients were drug dependent or at risk of becoming drug dependent having regard to the pattern of the prescriptions and the quantities involved 3. the patients presented with private prescriptions in circumstances which should have alerted the respondent that the health and safety of his patients were being compromised 4. the respondent knew or should have known that the supply of these drugs to these patients presented a risk to their health and safety, or there was a risk of their misuse or diversion 5. the dispensing of these drugs was contrary to guidelines 1 and 2 of the Pharmacy Board of Australia Guidelines for Dispensing of Medicines: "1 The dispensing process … The pharmacist should ensure that the prescription is valid, that the medicine is clinically appropriate for the patient, and that information is provided to ensure safe and appropriate use of the medicine. … 2 Dispensing precaution - safety of prescriptions A pharmacist must take reasonable steps during the dispensing process (detailed in Guideline 1 The dispensing process) to ensure that the dispensing of a medicine in accordance with a prescription or order is consistent with the safety of the person named in that prescription or order."
2. In summarising the evidence of Dr Benson with respect to each of the patients we have noted her assessment that the respondent's conduct fell significantly below the standard reasonably expected of a pharmacist of an equivalent level of training or experience. We endorse her opinion.
3. It follows that we are comfortably satisfied to the required standard that all of the factual matters referred to in Complaint One have been established.
4. In written submissions the applicant asserted that the contravention of the PTGR and the Dispensing Guidelines would constitute improper or unethical conduct pursuant to section 139B(1)(l) of the National Law. We apprehend that no such allegation is contained within Complaint One, and we reject this submission.

Complaint Two

1. This Complaint is based upon the additional obligations assumed by the respondent as a co-proprietor of the pharmacy. We have previously set out extracts from the relevant Proprietor Guidelines. We agree with the submissions of the applicant that each of the Particulars of this Complaint is evidence of a failure by the respondent to comply with these obligations.
2. It is not necessary to traverse the evidence in detail. It is clear from the recitation of the facts contained in the Particulars which we have found proven to the requisite standard that the respondent, as co-proprietor: 1. failed to take adequate steps to ensure that Schedule 8 and Schedule 4D drugs were being dispensed in accordance with the PTGR and Dispensing Guidelines 2. failed to take adequate steps to ensure that the dispensing pharmacists recorded their names for each instance of dispensing these drugs.
3. These are all matters upon which Dr Benson made comment. There can be no doubt concerning the underlying factual situations which are the basis for each of Particulars 1, 2 and 3. We are comfortably satisfied to the requisite standard that the respondent in his role as co-proprietor failed to ensure that there was appropriate compliance with these requirements. As such, we are comfortably satisfied that each of these Particulars has been established.
4. It is necessary to refer to the evidentiary material which applies to Particular 4 of Complaint Two. This Particular is based on a failure to make adequate notes of conversations with prescribing practitioners in relation to the supply of the relevant drugs and adequate notes of the clinical reasons for the concurrent supply of high doses of Schedule 8 drugs and benzodiazepines to the patients. It is based on clause 8.4 of the Pharmacy Board of Australia Code of Conduct: "8.4 Health records Maintaining clear and accurate health records is essential for the continuing good care of patients or clients. Practitioners should be aware that some National Boards have specific guidelines in relation to records. Good practice involves: a) keeping accurate, up-to-date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication and other management in a form that can be understood by other health practitioners ….. d) ensuring that records are sufficient to facilitate continuity of care"
5. The evidence before us is that eight persons in the pharmacy were responsible for the dispensing of prescriptions during the relevant period. There is a computer readout of notes which predominantly record conversations with Dr Ochoa concerning prescriptions which he had written, and some interaction with patients. These notes do not record the name of the patient involved. There is a notation of communications occurring on 24 occasions between 25 July 2016 and 27 July 2018. The initials indicating the name of the pharmacists involved are predominantly DR and PP. The respondent's initials DL occur on six occasions. Some notes do not record the initials of any person. These notes record the fact of contact with Dr Ochoa, mostly in relation to the "interval" for dispensing. In the main they indicate reliance on the response of Dr Ochoa, but, as submitted by the applicant, they record "almost no independent clinical reasoning on the part of any pharmacists."
6. During the course of an interview conducted by delegates of the Pharmacy Council the respondent produced copies of 12 prescriptions for Endone written for Patient H by Dr Ochoa which contain handwritten notations which are indicative of the interval of dispensing having been altered.
7. These are the only records available that are indicative of compliance with clause 8.4 of the Code.
8. In a signed submission to the Pharmacy Council made jointly by the respondent and Priya Patel on 28 February 2019 they said inter alia: "We are aware of the nature of risks in relation to drug misuse. In dealing with these patients we are aware that we had to be vigilant of the patient's history and carefully review intervals of dispensing and regularly engage in discussions with the patient's doctors. If we were not satisfied to dispense such medications, we would not supply it… … Whilst we did not record each and every interaction with the prescribers we did record them from time to time. We acknowledge that in future we will be much more vigilant to record these discussions…"
9. In a submission made to the Pharmacy Council on 19 September 2018 the respondent said that he recalled speaking with Dr Ochoa about a prescription "at least once per shift, sometimes it was as often as a few times a day." He also said that he spoke to Dr Ochoa about Patient H and his Endone prescriptions "at least twice a month, either by telephone or in person in the pharmacy." If the respondent did have these interactions with Dr Ochoa, they are certainly not reflected in any notations within the pharmacy records.
10. The sparse nature of such notes that are available combined with the admission of the respondent made to the Pharmacy Council which we have set out above enables us to conclude that we are comfortably satisfied that Particular 4 has been established. The applicant asserted that this misconduct also fell within the provisions of section 139B(1)(l) of the National Law. We shall return to this matter shortly in these reasons for decision.

Complaint Three

1. This Complaint is based on a number of assertions that the respondent failed to adequately and appropriately protect his patients. As is obvious from the factual narration which we have set out, and as corroborated by records made available to us, as well as in a submission made jointly by the respondent and Priya Patel to the Pharmacy Council on 28 February 2019, almost all of the prescriptions issued to the patients whose circumstances are the subject of these proceedings were issued from a group medical practice adjoining the pharmacy, the bulk of them having been written by Dr Ochoa.
2. In the joint submission previously referred to the respondent said that he had relied upon and trusted the prescribing medical practitioners in fulfilling his duty of care to his patients. The submission also said: "We also fully understand that we cannot accept that face value what other health care professionals advise and (sic) exercise our own independent judgement."
3. We refer to the provisions of Particular 1. Based on the expert opinion of Dr Benson we conclude that the respondent should have held a reasonable belief that the prescribing practitioners for each of the patients were placing the public at risk of harm by practising medicine in a way that constituted a significant departure from accepted professional standards. As such the respondent should have notified AHPRA of these matters as required by section 141(2) of the National Law, the provisions of which we have earlier set out.
4. We note that Particular 1 alleges that the respondent did hold the belief referred to in [99] above. Because of his overall lack of knowledge about these matters, as conceded by him in submissions to the Pharmacy Council, we cannot be comfortably satisfied that it has been established that the respondent did hold that belief.
5. On this basis we are comfortably satisfied to the extent that we have found that Particular 1 has been established.
6. Particular 2 details the steps that it is alleged the respondent should have taken to protect his patients from being placed at risk of harm as required by clause 6.3 of the Code of Conduct, the provisions of which we have earlier set out. Steps (c) and (d) refer to section 28 of the Poisons and Therapeutic Goods Act 1966 (NSW) and the allegations are confined to the prescription of oxycodone to Patient A and the prescription of alprazolam to Patient B. For completeness we note that oxycodone is a type C drug and alprazolam a type B drug for the purpose of this section. 28 Prohibition on prescribing drugs of addiction in certain cases (1) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to any person a type A drug of addiction. (2) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe or supply a type B drug of addiction: (a) for continuous therapeutic use by a person for a period exceeding 2 months, or (b) for a period that, together with any other period for which that drug or any other type B drug of addiction has been prescribed or supplied by the medical practitioner or nurse practitioner or has, to the medical practitioner's or nurse practitioner's knowledge, been prescribed or supplied by any other medical practitioner or nurse practitioner, would result in that drug, or that drug together with any other such drug, being prescribed or supplied for continuous therapeutic use for a period exceeding 2 months. (3) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to a person who, in the opinion of the medical practitioner or nurse practitioner, is a drug dependent person a type C drug of addiction. (4) For the purposes of this section, the proper authority means an authority under section 29 that authorises the medical practitioner or nurse practitioner to prescribe or supply the drug of addiction to the person concerned. (5) A drug of addiction may be prescribed for or supplied to a person by a medical practitioner or nurse practitioner without the proper authority if the medical practitioner or nurse practitioner is authorised by the regulations to prescribe or supply the drug without an authority under section 29. (6) In this section: type A drug of addiction means a drug of addiction prescribed by the regulations under this section as a type A drug of addiction. type B drug of addiction means a drug of addiction prescribed by the regulations under this section as a type B drug of addiction. type C drug of addiction means any drug of addiction (other than a type A drug of addiction).
7. These steps as particularised are based on the expert opinion of Dr Benson. Even though Dr Benson did not specifically refer to the section 28 authority in considering the circumstances relating to Patient A, it is clear on the evidence that he was opioid dependent, as was conceded by the respondent. There is no evidence that the respondent asked adequate questions of the prescribing doctors as to the appropriateness of the quantities of drugs being prescribed for these patients, that he took any adequate steps to raise the possibility of referring the patients to a qualified pain addiction specialist or drug dependence program, or that he sought to confirm the existence of any authority to prescribe these drugs to patients under section 28 of the Poisons and Therapeutic Goods Act. The burden of establishing these matters rests on the respondent, albeit to the civil standard of proof.
8. We are comfortably satisfied in all the circumstances that these factual matters have been established to the requisite standard, and that the Particulars of Complaint Three have been established.

Is the respondent guilty of unsatisfactory professional conduct?

1. 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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. …. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. We refer to the factual findings which we have made concerning each of the Particulars contained within Complaints One, Two and Three. In each case Dr Benson has concluded that the conduct of the respondent falls within the description of unsatisfactory professional conduct contained within section 139B(1)(a). Based upon this opinion, we are comfortably satisfied that the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(a) with respect to all of the Particulars of Complaints One, Two and Three.
3. With respect to Complaint Two, we note that there is an allegation that the conduct of the respondent falls within section 139B(1)(l). This contains a reference to "other" conduct, which prima facie is a reference to conduct which falls outside that within section 139B(1)(a). The applicant has not particularised the manner in which the provisions of subsection (1)(l) apply. As we are able to deal with these proceedings appropriately without considering this particular aspect, we decline to consider this particular matter, because it was not the subject of submissions before us.
4. In the same way, we are able to make a determination about Complaint Three without considering the provisions of subsection (1)(l).
5. Based on the opinion of Dr Benson and having regard to the factual findings which we have made we find that the respondent has breached section 141(2) of the National Law by failing to have notified AHPRA of the inappropriate prescribing practices of a number of the medical practitioners at the adjoining medical practice, and especially Dr Ochoa, who as we have previously noted issued a substantial number of the prescriptions to these patients. In this regard we note the opinion of Dr Benson that these prescribing practices of Dr Ochoa and the other practitioners were in all the circumstances inappropriate.
6. This failure constitutes a contravention of the National Law and therefore constitutes unsatisfactory professional conduct as described in section 139B(1)(b). It follows that we are comfortably satisfied that this Particular has been established.

Is the respondent guilty of professional misconduct?

1. Complaint Four 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.
2. 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.'"
3. 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..."
4. 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 and as it related to his co-proprietorship of the pharmacy is of a most serious nature.
5. 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..."
6. 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.
7. 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"
8. 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 gatekeepers 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.
9. We have described in some detail the quantities of the regulated 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 he 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.
10. We add for completeness that on the evidence the respondent was co-proprietor of the pharmacy, that he was an experienced pharmacist, 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.
11. 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 and as a co-proprietor. 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.

Appropriate protective orders

1. 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.
2. 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.
3. 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 ….
4. 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.
5. The respondent has provided no information which would provide any comfort that he has undergone some process of reformation or rehabilitation. At best, the respondent has acknowledged some particular aspects of his misconduct and has apologised to the Pharmacy Council. Furthermore, the respondent has noted that he no longer wishes to practise as a pharmacist, although this fact of itself does not impact upon our consideration of what are appropriate protective orders.
6. Because of the egregious nature of the respondent's misconduct, the serious risk to the health and safety of patients which it created, and the lack of any information that would persuade us that in some way he might be able to practise pharmacy safely, we conclude that it is appropriate that in all the circumstances his registration be cancelled, and we shall so order.
7. We are entitled to fix a minimum period under section 149C(7) of the National Law before the respondent may apply for a review of the order of cancellation of his registration. Having regard to all of the matters to which we have referred, we assess that an appropriate period is three years from this date. This will afford the respondent an opportunity to reflect upon his very serious misconduct, and take whatever steps are appropriate by way of rehabilitation, re-education and reformation of character in the event that he may wish to apply for registration as a pharmacist in the future.

Costs

1. The applicant sought a costs order in its favour. This is a costs jurisdiction. There is no conduct on the part of the applicant which would disentitle it to a favourable costs order and we propose to make such an order accordingly.

Dr Carlos Ochoa

1. We are conscious that the bulk of the prescriptions which were found to have been inappropriately dispensed by the respondent were written by Dr Carlos Ochoa out of the adjoining Australian Health Care Centre. Dr Benson who has expertise in regulated drugs of addiction has commented unfavourably on the prescribing conduct of Dr Ochoa. Although Dr Ochoa's prescribing conduct with respect to these patients was the catalyst for the respondent's misconduct leading to the cancellation of his registration, this does not excuse the respondent. However, we would be remiss in discharging our duty to uphold the health and safety of the public which is enshrined in the National Law if we did not take steps to ensure that the conduct of Dr Ochoa and perhaps also other medical practitioners in the same Medical Centre is brought to the attention of the relevant authorities. We note that the applicant is one such authority. We ask the Health Care Complaints Commission to consider these comments and if thought appropriate to refer them to any relevant authority for consideration as to whether they should be the subject of further investigation.

Orders

1. 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 cancelled 2. pursuant to the provisions of section 149C(7) of the Health Practitioner Regulation National Law (NSW) an application for review may not be made until three years from the date of this decision 3. the respondent is to pay the costs of the applicant 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: 21 January 2022