Health Care Complaints Commission v Le

NCAT Occupational|2020-05-19

Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation National Law (Qld) Cases Cited: Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1 Burns v Corbett [2018] HCA 15 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 Health Care Complaints Commission v Murray [2018] NSWCATOD 119 Health Care Complaints Commission v Perera [2018] NSWCATOD 112 Health Care Complaints Commission v Pickett [2019] NSWCATOD 53 Health Care Complaints Commission v Sloane [2018] NSWCATOD 37 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Ombudsman v Le [2020] QCAT 170 Lee v Health Care Complaints Commission [2012] NSWCA 80 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Jhaii Kiet Nghi Le (Respondent) Representation: Counsel: D Fuller (Applicant)

Solicitors: Health Care Complaints Commission (Applicant) Respondent (Self represented) File Number(s): 2019/00391607 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure to any person or entity of the names of the patients set out in the schedule to the complaint is prohibited.

REASONS FOR DECISION

On 12 December 2019 the Health Care Complaints Commission (HCCC) applied to the Tribunal for disciplinary findings and orders against Jhaii Kiet Nghi Le, a registered pharmacist, under the Health Practitioner Regulation National Law (NSW) (the National Law).
The practitioner graduated with a Bachelor of Pharmacy in Queensland in 1997, and was first registered as a pharmacist in Queensland in 1998. Between about 2003 to May 2016 he lived in and worked as a pharmacist in Queensland. From 9 May 2016 to 26 July 2016 the practitioner was employed as the pharmacist in charge on a full time basis at a pharmacy in Tamworth NSW (the Pharmacy).
The complaint the subject of these proceedings relates to the practitioner's conduct while working at the Pharmacy during the period 25 May 2016 to 25 July 2016, and is that the practitioner is guilty of unsatisfactory professional conduct under s 139B of the National Law in that he: 1. Engaged in conduct that demonstrates the judgement possessed or care exercised by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a)); and/or 2. Engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy (s 139B(1)((l)).
Following a mandatory notification to the Australian Health Practitioner Regulation Agency (AHPRA) by the proprietor of the Pharmacy on 26 July 2016, the Pharmacy Council of NSW (the Council) convened a hearing under s 150 of the National Law. Conditions were imposed on the practitioner's registration by the Council on 10 August 2016, that he not work in a pharmacy as the pharmacist in charge or the sole pharmacist; that he advise the Council within 7 days of changing employment; and that he not possess, supply, dispense, administer, or manufacture any S8 or S4D medications.
The practitioner's registration was suspended on 19 May 2017 under s 150(1)(a) of the National Law by the Council, having found that the practitioner had breached the conditions on his registration.
There have been separate disciplinary and criminal proceedings against the practitioner in Queensland, relating to his conduct in that State before he came to work in NSW, and after he returned to live and work in Queensland. Those proceedings against the practitioner in Queensland related to a break and enter and theft of cash and medications from the pharmacy in which the practitioner was employed in May 2016. The practitioner pleaded guilty on 16 December 2016 to 13 offences, under s 421(2) of the Criminal Code (Queensland) and ss 94 and 204 of the Health (Drugs and Poisons) Regulations 1996 (Qld).
On 22 June 2020 the Queensland Civil and Administrative Tribunal (QCAT) made findings of professional misconduct and unprofessional conduct, and made orders reprimanding the practitioner, cancelling his registration, and that he is disqualified from applying for registration until 20 May 2021: Health Ombudsman v Le [2020] QCAT 170. The background to those proceedings, and the relevance of the QCAT orders for any protective orders made in these proceedings, are discussed below.

The Complaint

The Complaint was amended during the proceedings, to correct references to particular patients and to delete particular 3. The particulars to the Complaint as amended, and the practitioner's response, are as follows: 1. Particular 1: On or about 22 July 2016 the practitioner improperly obtained medication for his personal use from the pharmacy, being 100x Ritalin (methylphenidate) 10mg tablets dispensed in the name of Patient D, and 20 x Antenex (diazepam) 5mg tablets dispensed in the name of Patient B; The practitioner admits this particular. 1. Particular 2: The practitioner took possession of medication, Ritalin, otherwise than in the lawful conduct of the practice of medicine contrary to s 10 of the Drug Misuse and Trafficking Act 1985; 2. The practitioner admits this particular. 3. Particular 4: On or about 22 July 2016 the practitioner failed to keep his personal bag in the storage area away from the medication dispensing area and from the sales counter; 4. The practitioner admits this particular. 5. Particular 5: On or about 25 July 2016 the practitioner failed to follow the standard expected of a pharmacist by using Patient A and Patient B's records, including Webster pack header cards and patient dispensing details, during a police interview to demonstrate the Webster packing process. He did not de-identify the records prior to showing them to Queensland Police; 6. The practitioner admits this particular. 7. Particular 6: Between about 25 May 2016 and about 23 July 2016 the practitioner improperly obtained medication for his personal use from the pharmacy, being 63 x OxyContin (Oxycodone) 20mg tablets dispensed in the name of Patient C, and 30 x OxyContin (Oxydodone) 40mg tablets dispensed in the name of Patient C; 8. The practitioner denies this particular.
The practitioner admits he is guilty of unsatisfactory professional conduct.

Tribunal proceedings

The HCCC relied on the following documentary evidence: 1. Two volumes of documents (ex A1) including: 1. statements by Hsing Sung (29 December 2017), Leanne Summers (13 April 2017), Corinne Steadman (25 October 2017), Kerrie Leonard (21 June 2017) Indie-Phiet Nguyen (12 April 2017) and Ciara Fennessy (22 March 2017); 2. expert report by Nerida Croker (2 April 2018); 3. patient records and dispensing records for Patients A, B and C; 4. Pharmacy Drug Register extracts; 5. Documents relating to proceedings commenced by Queensland Office of the Health Ombudsman; 1. Supplementary statement by Hsing Sung 13 May 2020 (ex A3); and 2. Evidentiary certificates AHPRA and Pharmacy Council of NSW (ex A 4).
Mr Sung, Ms Summers and Ms Croker gave oral evidence.
The practitioner relied on his email of 23 April 2020 responding to the Complaint (ex R1). The practitioner gave oral evidence.
After the hearing the HCCC provided a copy of the QCAT decision of 22 June 2020 (Health Ombudsman v Le [2020] QCAT 170). The parties were provided an opportunity to make submissions as to appropriate protective orders in light of the QCAT decision. The HCCC provided submissions on 13 July 2020. The practitioner did not provide any submissions.
The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). The HCCC bears the burden of proving, on the balance of probabilities, the sole issue in dispute, that is whether the practitioner improperly obtained for his personal use the quantity of Oxycontin tablets specified in particular 6. The approach to be adopted in making findings of fact was explained in Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 in the following terms: 52. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]). 53. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34: (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.

Jurisdiction

The practitioner is a resident of Queensland. The HCCC in its submissions addressed the question of whether the Tribunal, which is not a State court, has jurisdiction, referring to ss 75(iv) and 77 of the Constitution: Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; Burns v Corbett [2018] HCA 15. The HCCC's position is that the Tribunal has jurisdiction, on the basis that the HCCC forms part of "a State" for the purposes of s 75(iv) of the Constitution, and that in these disciplinary proceedings the Tribunal is not exercising judicial power, its functions being in the nature of supervisory or regulatory functions. The latter proposition is supported by decisions in the context of other disciplinary bodies, and in the context of the National Law by decisions of this Tribunal in Health Care Complaints Commission v Murray [2018] NSWCATOD 119 and Health Care Complaints Commission v Sloane [2018] NSWCATOD 37. The Tribunal agrees with the HCCC's submission.
The conduct addressed in the amended Complaint is the practitioner's conduct in New South Wales. The conduct the subject of the disciplinary proceedings in Queensland was summarised by QCAT in the following terms: Background facts [4] The Tribunal accepts the facts set out in the agreed statement of facts. They, and some additional information before the Tribunal, may be summarised as follows: The respondent was born in 1973 and is now 47. He was first registered as a pharmacist in February 1998. Prior to May 2016 he worked at a number of pharmacies, the last being in a Brisbane suburb, where he was the pharmacist in charge of the store. On 2 May 2016 that employment came to an end. Prior to that, he had come into possession of a key to the pharmacy which had been issued to another employee. Eighteen days after his employment came to an end, he used that key to enter the pharmacy early one morning when it was closed, and stole $4,400 from the pharmacy safe, together with some prescription drugs and other items. When he left he locked up the pharmacy behind him. [5] Two days later, police searched his premises and located quantities of Schedule 8 controlled drugs and Schedule 4 restricted drugs. The former consisted of five boxes of Oxycontin tablets, each containing 28 20 mg tablets, and 37 Ritalin 10 mg tablets. The latter were quantities of Aripiprazole 30 mg tablets, Codeine 30 mg tablets, Gliclazide 60 mg tablets, Montelukast GH 10 mg, Oseltamivir, Phentermine 40 mg, Diazepam 5 mg, Famciclovir 500 mg, Nitrazepam 5 mg and Zydol SR200 Tramadol. There were ten boxes of Aripiprazole, seven boxes of Gliclazide and three boxes of Tramadol; the remainder were in quantities from one dose to 36 tablets. The respondent was charged with entering premises and committing an indictable offence, for which the maximum penalty is 10 years imprisonment, and twelve charges of unlawful possession of controlled or restricted drugs. [6] On 25 July 2016 he took part in a recorded police interview. He initially claimed that he was not in the relevant suburb that day. When shown video footage of a vehicle in the suburb near the pharmacy, he claimed he had been there to meet a friend as they had arranged by phone. Phone records did not support that account. He admitted he had no lawful excuse to possess the Schedule 8 and Schedule 4 drugs. [7] On 16 December 2016 the respondent pleaded guilty to all of thirteen charges in the Magistrates Court at Brisbane. Fines were imposed for the drug offences, and he was placed on probation for the property offence. A restitution order was made in respect of the $4,400. The respondent did not notify the National Board of the fact that he had been charged with the property offence, nor did he notify the National Board of the fact that he had been convicted of the thirteen offences. [8] In July 2016 the respondent obtained employment in a country town in New South Wales. On or before 22 August 2016 the Pharmacy Council of New South Wales placed conditions on the respondent's registration, that he: (a) not work in a pharmacy as the pharmacist in charge. (b) not work as a sole pharmacist. (c) advise the Pharmacy Council of NSW in writing within seven days of changing employment. (d) not possess, supply, dispense, administer or manufacture Schedule 8 or Schedule 4D drugs. When this occurred, his employment was terminated. [9] Between 16 October 2016 and 20 February 2017 the respondent was employed, on a locum basis, as a sole pharmacist in charge of a pharmacy in a Queensland country town. He did not advise the Pharmacy Council of NSW in writing of this employment within seven days of taking it up, and in that position dispensed Schedule 8 and Schedule 4D drugs, the former on hundreds of occasions. Hence he breached all four of those conditions. [10] On 12 December 2016 the respondent wrote to the Pharmacy Council of New South Wales, seeking to have the conditions removed. In the course of that letter, he claimed that, in the four months since the restrictions were imposed, he had not sought employment as a pharmacist. That was false as he had then worked as a pharmacist in the Queensland Country town on sixteen occasions. When confronted by his employer on 20 February 2017 about the conditions on his registration, he claimed that they had been in place only from the previous week, which he knew was false.
The allegations the subject of those proceedings were: Allegation 1: The conviction of the respondent of the thirteen offences. Allegation 2: The failure of the respondent to notify the National Board as required of his having been charged with, or of his having been convicted of, the offence of entering premises and committing an indictable offence therein. Allegation 3: Breach of the conditions placed on his registration by working as he did in the Queensland country town. Allegation 4: Knowingly provided false and/or inaccurate and/or misleading information to the Pharmacy Council of New South Wales about his employment and compliance with the conditions on his registration.
As noted above, QCAT found that the practitioner had engaged in professional misconduct in respect of the matters set out in allegations 1, 3 and 4, and in unprofessional conduct in respect of the matters set out in allegation 2. The practitioner was reprimanded and his registration cancelled, and he is disqualified from applying for registration until 20 May 2021.

The Pharmacy

Mr Sung and his wife, also a pharmacist, are the owners of the Pharmacy, and a pharmacy in Hervey Bay Queensland. In his statement of 29 December 2017 Mr Sung stated that the Pharmacy is a large pharmacy, open seven days a week, with usually two or three pharmacists working during an average week. There are four dispensing technicians, 11 sales staff, and an office manager. The Pharmacy provides Webster packs to a number of nursing homes and to community patients. Webster packs are blister packs prepared at a pharmacy containing a physical schedule of tablets to be taken by a patient across one or two weeks, separated by day and time of day.
Mr Sung stated that the Pharmacy has a work car used for delivering pharmacy products. The practitioner used that vehicle while staying with Mr Sung and his wife, to drive to and from work. The practitioner's last day at the Pharmacy was 22 July 2016, before relocating to work at the Hervey Bay pharmacy.
Evidence as to the layout and working of the Pharmacy was provided in the statement by Ms Kerrie Leonard, the office manager (21 June 2017), and Ms Leanne Summers, pharmacy assistant (13 April 2017). Ms Leonard stated that there are three registers. Behind the dispensary is a packing room where the drug safes are located. Ms Summers stated that the work done at the back is packaging Webster products. Patient profiles are stored in folders above the counter. There are 6 big safes for the Schedule 8 drugs, and a small safe used to store S8 drugs for Webster patients. Schedule 4D and S4 drugs are stored on the shelves in the front dispensary.
Ms Summers stated that each Webster patient has their own plastic basket on the shelf in the back area. When preparing Webster packs the staff draw the S4 and S4D medications from the basket on the shelf in the back area, or from the stock in the front dispensary. When S8 medication is prescribed the S8 drugs are drawn from one of the large safes in the back area. Excess S8 medication for nursing home patients' Webster packs are kept in the small S8 safe under the work bench to be accessed when needed for packing.
Ms Summers stated that Webster packs are prepared two weeks in advance. When medications are running low one of the pharmacy assistants dispenses the needed medications after the packer has written on the dispense sheet. Schedule 8 drugs for Webster patients are kept in the small safe. There are often S8 drugs stored in the safe that will not be used, for example if a doctor prescribes a trial of a particular drug. If the doctor ceases or changes a prescription, the unused drugs will be stored in the safe (S8) or on the shelf (S4), until police come and do a drug destruction visit, which happens a couple of times a year.
Ms Summers stated that the practitioner and another pharmacist Indie worked in the pharmacy most week days, and they took it in turns to work as sole pharmacist on the weekend dispensing for shop customers. The pharmacist who works at the back is in charge of the work done by the three pharmacy assistants, and is expected to oversee the dispensing of drugs, the packaging and labelling of Webster packs and to handle the S8 drugs and drug checks.
Mr Sung's second statement (13 May 2020) provided further information about Webster packing. The usual process was that when a prescription was received for a Webster pack patient it would be dispensed once the drugs were needed to begin filling Webster packs. If a quantity of the same drug was still sitting in the S8 safe in the name of the patient, for example if the GP had previously changed the prescription and later changed it back, and it had not expired, they would use that quantity in Webster packing before dispensing the new script. Sometimes the GP would change the prescription after the pharmacist had recorded the drugs as being dispensed but before the whole quantity of drugs on the script had been physically dispensed. Where a change resulted in leftover S8 drugs the practice was that the drugs would be bagged for destruction and kept in one of the S8 safes until an inspector came for a drug disposal visit. Sometimes leftover drugs were bagged up immediately, at other times they would be bagged up as a result of a "stocktake" performed before the next scheduled drug disposal visit. That would involve identifying any boxes or other containers labelled with a patient's name that were not currently being included in Webster packs for that patient. Leftover S8 drugs which had been recorded as dispensed for a patient but not physically dispensed to them would never be returned to pharmacy stock.
Ms Summers, Ms Steadman and Mr Sung provided evidence as to the practitioner's behaviour. Ms Summers stated she became suspicious when he kept accessing her computer and the electronic patient profiles for no apparent reason, and opening the S8 drug safe and checking through the drugs. A week or two before he left the Pharmacy she saw the practitioner had accessed Patient C's S8 medications from the S8 small safe and had the medications on the bench top. She thought she saw him take something from the safe and put it in his pocket. She noticed he was storing his bag under the dispensing front dispensary bench.
Ms Steadman stated that on the practitioner's last day at work she observed him taking a vial from his pocket and putting some tablets into it, and putting something into a yellow paper bag with the Pharmacy logo. After he left the dispensary area she observed the paper bag with one box of Ritalin 10mg and a vial containing different medications in his shoulder bag. She and Mr Sung watched the CCTV footage together one or two days later, which showed the practitioner taking a box of medication out of the S8 safe and keeping it, and taking a box out of the S8 safe and placing some paper over it and putting something in his pocket. Later Mr Sung told her that the practitioner had returned medication by express mail, and the Webster labels showed that the medication was prescribed in the names of Patients A and B.
Mr Sung in his statement of 29 December 2017 confirmed Ms Steadman's evidence about the CCTV footage, confirming that the practitioner had accessed one of the drug safes, used a piece of paper to cover and hide something he had taken out of the safe, and placed a yellow pharmacy bag into his personal bag. Mr Sung confirmed that he spoke to the practitioner about missing medication, and he told him he needed the drugs for his court case. Mr Sung confirmed that the practitioner posted the drugs back along with the Webster labels for Ritalin and Antenex.
Ms Steadman and Ms Leonard referred in their statements to damage done to the Pharmacy vehicle. Both stated that on one morning the vehicle had been damaged with scratches over the doors, bonnet and roof and damage to the mirror. Ms Leonard stated that she asked the practitioner about it and he said he did not know what had happened to the car. Ms Leonard lodged a claim with the insurer, and the vehicle was written off.

The practitioner's evidence

The practitioner described his duties at the Pharmacy as being to manage dispensing, supervise pharmacy assistants, and maintain the DD book. There were two dispensing areas in the pharmacy, and four computers. One was dedicated to Webster, two were for dispensing at the front of the pharmacy, and the other at the back. All of the packing for Webster packs was done at the back. There were three safes for S8 medications and he had access to them all. He and another pharmacist would check the Webster packs and he would look after the front. He would sometimes help with Webster packing. He would need to review the patient profiles to check whether the Webster pack was correct. It was the pharmacist's job to dispense medication, that is to take the medication out of the safe. There would be a stock check once a month, which required that the electronic drug book be printed and the safe checked to see if the quantity matched.
The practitioner admitted that he had kept his personal bag in the dispensing area regularly. On 22 July 2016, the last day he worked at the Pharmacy before he left to start working at Hervey Bay, he took the Ritalin dispensed in the name of the patient. He knew from the dispensing history that the patient was no longer taking that medication. He acknowledged that that was a mistake. Sometimes medication might be dispensed but not physically given to the patient and then a change of prescription would mean that there would be a box of S8 medication in the safe labelled with the patient's name. The practitioner agreed he removed the box of Ritalin, covered it with paper and put it in his bag. As to the Antenex, there was a broken pack on the dispensing shelf, not labelled. The practitioner acknowledged that he was aware it was unlawful to have the Ritalin or Antenex at the time.
The practitioner admitted he printed Webster header labels with patient names and addresses to put on a card which he took for his interview with Queensland Police on 25 July 2016. He needed some proof to show them what a Webster header was. He intended to return the medication to Mr Sung the following Wednesday at the Hervey Bay pharmacy, and put it in the safe and back on the shelf. He would not have told Mr Sung he took them from the Tamworth pharmacy.
The practitioner denied taking Oxycontin from the Pharmacy. He agreed that 20mg Oxycontin was found by Queensland Police when they searched his home on 24 May 2016. The medication had already been dispensed but he had not put a label on the box for his mother, who had cancer. Some of the medication found at his home belonged to other Webster packs that he had dispensed at home because there was no time to do them at work. Oxycontin was stored at the Pharmacy in a special safe for Webster patients. All the medication would be dispensed, and physically distributed over time in Webster packs; so the stock recorded in the register would be different to the physical stock if used for Webster packing. He would know if there was medication left over by looking at the Webster profile to see if medication was currently used, or at the history of prescriptions for a patient.
The practitioner was asked about Patient C, and taken through her patient history report and patient profile. The practitioner recalled doing Webster packing for her. He agreed that there were changes in her medication, and that if there were left over 20mg or 40mg Oxycontin in the Webster safe in her name that had not expired they would be used before any new script was dispensed. He agreed that when the dose was changed from 26 May 2016 there would be left over 20mg and 40mg, and agreed that there would be at least 63 of the 20mg and 40 of the 40mg. The practitioner agreed that the left over medication would be in a safe, and that whether there were spares could be worked out from the patient profile. The practitioner agreed that the process of working out whether there were spares was similar to the process he had used for the Ritalin, however stated he had done that because he needed to show Queensland police what the Webster pack was.
The practitioner stated that he was not the only pharmacist who could check patient profiles or who had responsibility for checking stock.
The practitioner was asked about other incidents during his time working at Tamworth. He said it was his wife who damaged the work car, driving on a dirt road and hitting a fence. When taken to his statement of 9 May 2018, in which he had said that his wife had driven home after he had had some drinks with a work colleague, and that he had told Mr Sung that his wife had driven the car, the practitioner stated that the accident had occurred after he had arrived home, when his wife took the car out. He stated he had told Mr Sung what had happened. The practitioner did not recall having made sexual jokes as stated by Ms Summers, stating that he had just started work at Tamworth and did not know the people, and did not recall having made any of the other comments attributed to him. He could not recall saying in the interview with Kim Dolan of the Pharmaceutical Regulatory Unit on 2 August 2016 that he stayed in the area while working at Tamworth and went home to Queensland once or twice a month, stating to the Tribunal that he went to Queensland every week from Friday to Sunday. Later in his oral evidence the practitioner said that he went home every second weekend. He agreed his work performance was affected by the commuting. The practitioner denied having a problem with drugs, or alcohol.
The practitioner admitted he had breached the conditions imposed by the Council on his registration by working at the Maryborough pharmacy from 1 December 2016 as sole pharmacist and dispensing S8 medications, and that his statement in his request to the Council of 12 December 2016 for the conditions to be lifted that he had not sought employment so he could re-educate himself on the rules and regulations of pharmacy practice, was false. He agreed he had worked in Maryborough as a sole pharmacist and dispensed S8 medications.
The practitioner stated that he has not been working as a pharmacist since his registration was suspended, and has found work as a labourer and in a food processing company. He has been boning up on the legislation. He has ceased doing any CPD because he is not registered, and stopped in August or October 2016.

Expert evidence

Ms Nerida Croker provided an expert report dated 2 April 2018. Ms Croker has extensive experience as a pharmacist in charge and as a pharmacist manger in community pharmacy including a locum position in regional NSW, and works as an accredited pharmacist undertaking medication reviews along with teaching pharmacy students at the University of Technology Sydney.
Ms Croker prepared her report based on documents provided with the brief and additional documents requested from the Pharmacy through the HCCC, including drug register sheets, medication lists from stocktakes, and prescription and dispensing records.
In relation to the contested allegation that the practitioner took Oxycontin prescribed for Patient C, Ms Croker's evidence was that on her consideration of the Pharmacy records, there were 63 20mg and 30 40mg tablets which could not be accounted for. The basis for Ms Croker's reasoning was as follows: [Patient C] had numerous changes to her Oxycontin doses over the course of 2016. These were escalating doses due to her diagnosis of cancer. The Commission provided documents including GP prescribing notes and doses, along with her dispensing records. On the date of 19th May 2016 [Patient C's] GP increased her dose of Oxycontin to a total daily dose of 310mg in the morning, 60mg at lunch and 310mg in the evening. This was made up by three 80mg tablets morning and night, one 40mg three times a day, one 20mg three times a day, and one 10mg tablet three times a day. (3 x 80mg = 240mg + 40mg + 20mg + 10mg = 310mg) Prescriptions were provided and a prescription for Oxycontin 20mg x 84 tablets was provided and dispensed. As S8 medication can not be provided on an "owing" this means that the 84 tablets prescribed on this day would have been assumed to provide for [Patient C] for the next 28 days. A prescription for 56 Oxycontin 40mg tablets had been dispensed on the 10th May and a further script for 28 Oxycontin 40mg tablets was dispensed on the 12th May. These prescriptions should have provided enough stock for 28 days after dispensing. On the 26th May 2016 (one week after the previous dose change) [Patient C's] GP further increased her dose of Oxycontin to 330mg in the morning, 80mg at lunch and 320mg in the evening. This was to be made up by four 80mg tablets in the morning, one 80mg tablet at lunch and four 80mg tablets in the evening, plus one Oxycontin 10mg tablet in the morning, (4 x 80mg = 320mg +10mg = 330mg). Prescriptions for the increased quantity of Oxycontin 80mg (240 tablets) were provided and dispensed. Given this change in dose, her previous order for Oxycontin 20mg and Oxycontin 40mg were ceased. This means the 84 Oxycontin 20mg tablets dispensed the previous week were no longer required, and it is assumed that 21 days worth, or 63 tablets of Oxycontin 20mg should have remained in the safe. In the case of [Patient C], pharmacy staff have confirmed they packed only one weeks worth of medication at a time, likely due to the multiple dose changes. Therefore, it would be expected that a minimum of three weeks tablets (63 tablets) would remain in their original packs in the safe waiting for use. It is also assumed that the balance of her Oxycontin 40mg tablets (approximately 10 or 12 days supply at three tablets a day) should have also remained in the safe. There is no record of these excess Oxycontin 20mg or 40mg tablets being returned to stock or destroyed at a later date as would be expected for any S8 medication which is returned to the pharmacy or has been packed into a blister pack and is not suitable for use for the patient. These Oxycontin 20mg and 40mg tablets which can not be accounted for may have been misappropriated.
Ms Croker stated in her report that the practitioner's explanations for a number of stock adjustments made on 11 May, 18 May, 24 May, and 20, 21 and 22 July met the legislative and professional requirements of an experienced pharmacist. However, in her opinion adjustments made on 20 July for Palexia IR 50mg and SR 50mg, Targin CR 10/5mg, and Endone 5mg, and 22 July for Palexia SR 100mg and Targin 5/2.5mg fell significantly below the standard expected. Those entries did not appear to be correctly documented, or have corresponding information, and could have been made in order to conceal the fact that S8 medications were not accounted for. Ms Croker stated that when requesting the register for Palexia IR 50mg from the Pharmacy it was documented that there was no register for Palexia IR 50mg as it had not been used. Ms Croker explained in detail in her report her concerns as to each of the adjustments made for those medications on those dates, and concluded that it was possible the entries were a false entry to conceal that medication was unaccounted for.
In oral evidence Ms Croker was asked about the 24 stock adjustments documented during the practitioner's employment at the Pharmacy. She explained that her concern was not with the stock adjustments as such, but that a large number of adjustments were made for multiples of S8 medication in a short period of time. The lack of information was concerning because it was difficult to reconcile the adjustments. All the adjustments were under, and not over.
In cross examination Ms Croker stated that she had done her calculations based on the 10 May prescription for Patient C, and did not take into account what would have been left over.
Ms Croker's report provided her opinion on the practitioner's conduct, as follows: 1. The standard reasonably expected of a practitioner of equivalent training and experience would be to follow all legislative requirements for storage and documentation regarding S8 and S4 medications, which are "prescription only" medications and should only be in the possession of the person to whom they were prescribed. That is particularly so for S8 medications with potential for misuse or abuse. 2. The practitioner's conduct fell significantly below the standard reasonably expected of a practitioner of equivalent training and experience in the following respects: 1. in removing from the pharmacy safe and taking for his own purposes a box of Ritalin 10mg x 100 tablets dispensed to a patient; 2. appropriating 20 5mg Antenex tablets, a S4D medication which can be misused, dispensed for Patient B; 3. in appropriating Ritalin 10mg tablets and Antenex 5mg belonging to patients for the purpose of demonstrating Webster packing to Queensland police, including the privacy issue of disclosure of patient information, instead of directing police to appropriate websites or using a non-prescription medication if no placebo pack was available; 4. using patient records that were not de-identified including Webster pack header cards and patient dispensing details during the police interview on 25 July 2016 to demonstrate the Webster packing process; 5. taking medication removed from a shelf or dispensed to a patient and placing that into his personal bag; and 6. documenting the stock adjustments made on 20 July for Palexia IR 50mg and SR 50mg, Targin CR 10/5mg, and Endone 5mg, and on 22 July for Palexia SR 100mg and Targin 5/2.5mg.
Ms Croker was asked to comment on the practitioner's documentation in the drug registers and whether it met the legislative and professional requirements of an experienced pharmacist. Ms Croker noted that she was provided with extracts for a number of S8 drug registers, some of which did not correspond to the time frame that the practitioner was working at the Pharmacy. She was not provided with all S8 prescriptions dispensed for the corresponding periods, and as such could not comment on the accuracy of S8 drug registers for all medications. She was provided with the full dispensing record for Patient C, and for Oxycontin 10mg and 40mg for the period April 2016 to July 2016 there were no discrepancies in documentation noted. There were issues with the drug register for Patient C's Oxycontin 80mg scripts: a prescription dispensed for 240 tablets on 26 May 2016 was not documented in the drug register for Oxycontin 80mg; and an entry made in the Oxycontin 80mg drug register on 22 July 2016 for a quantity of 210 tablets dispensed was documented with an incorrect script number with no corresponding prescription dispensed. In the case of documentation regarding Oxycontin 80mg tablets, the practitioner's conduct fell significantly below the standard expected. Ms Croker was strongly critical of his conduct regarding documentation of Oxycontin 80mg, and in relation to the discrepancies regarding the stock adjustments made for S8 medications referred to above.
Ms Croker's opinion was that assuming that the practitioner had made false or misleading entries in the S8 drug records, which did not show a shortfall, to balance the stock of Ritalin on hand, that behaviour would fall significantly below the standard reasonably expected of a practitioner of equivalent training and experience.
Ms Croker stated that the practitioner's conduct in keeping his personal bag in the dispensing area of the pharmacy when that was not the usual store policy fell below the standard expected of a practitioner of equivalent training and experience. If done in order to more easily move medications dispensed to patients or to misappropriate medications, it would fall significantly below the standard expected.
Ms Croker was strongly critical of the practitioner's behaviour in leaving the pharmacy for over two hours to deliver a medication and returning with that medication without explanation, as falling significantly below the standard expected.
Ms Croker commented on the practitioner's statement that when working in Queensland he would take home patient medications in order to make up Webster packs because he did not have time to complete the packaging at the pharmacy. She was strongly critical of that conduct, as that would mean keeping quantities of S4 and possibly S8 medications at his home away from the legislated storage requirements. If packs could not be filled during normal business hours it may be necessary for the pharmacist to remain on the premises after closing time to finish packing or checking medication packs. If the practitioner was not aware of Queensland legislation regarding storage of medications, that fell significantly below the standard expected. If the practitioner packed blister packs for his parents from his own home, or if the packs contained medications which were not prescribed and dispensed to his parents, his behaviour would fall significantly below the standard expected.
Ms Croker was strongly critical of the practitioner's behaviour as considered above.
Ms Croker was not strongly critical of the practitioner's behaviour as reported by the pharmacy assistant that he appeared not to know what he was doing in accessing the Webstercare computers or using the LOTS dispensing program, stating that there are many different programs used in pharmacies and he was a locum pharmacist. It would be preferred for the pharmacist to ask for assistance when accessing a program they are not familiar with, however that is not mandatory.
The Tribunal accepts the expert evidence of Ms Croker. Her report was carefully and thoroughly documented, based on a comprehensive evaluation of the documents, and reflecting her experience. Subject to the comments at para [71] below, the Tribunal accepts Ms Croker's evidence as to calculation of the shortfall in 20mg and 40mg Oxycontin dispensed in the name of Patient C. The Tribunal accepts her opinion that the practitioner's conduct fell significantly below the expected standard in several respects, as summarised at para [45] above.

Discussion and findings

There was no dispute as to the layout of the Pharmacy, or the work arrangement between the front and back dispensing areas, or that the practitioner had access to each of the safes, including the small safe used for S8 drugs prescribed for Webster pack patients. There was a divergence in the evidence as to the basis of the practitioner's employment at the Pharmacy, the Pharmacy's practice for drug destruction, and the frequency of Webster packing.
The practitioner's evidence in his statement to the HCCC of 9 May 2018 was that he was a junior pharmacist and Mr Sung was in charge of checking the Webster packs and signed off on any return of the Webster pack to the pharmacy. His evidence was that Mr Sung was at the Pharmacy four to five days a week, for nearly a full day. The practitioner's evidence was that he had a conversation with Mr Sung who said it was better to destroy S8 medications than to call the police to evidence destruction in NSW, and that practice differed from that in Queensland. The practitioner acknowledged that he had not observed Mr Sung destroying drugs without supervision.
Mr Sung disagreed, stating in his statement of 13 May 2020 that he had generally not destroyed drugs himself unless supervised by an inspector, the police, or the registered nurse in a nursing home setting, and he had never told the practitioner he had done or would do that. In oral evidence Mr Sung stated that sometimes patient drugs returned would be destroyed by crushing and put in the RUM (Return of Unwanted Medicines) bin or disposed of down the sink. Mr Sung stated that the practitioner was employed to run the Pharmacy and check Webster packs on a daily basis, and he was at the Pharmacy now once a fortnight, and back then very infrequently.
The Tribunal notes that while Mr Sung denied having had a conversation with the practitioner about disposing of medications himself, his statement of 13 May 2020 that he did not destroy S8 drugs himself unless supervised was qualified by the word "generally"; and in oral evidence, he conceded that sometimes medications would be disposed of down the sink. Mr Sung's evidence that since terminating the practitioner's employment he has implemented a "log book" for pharmacy staff to record any S8 drugs entered into or out of the Webster pack dedicated safe and that drugs no longer taken are bagged and marked for destruction, indicates an acknowledgement that the Pharmacy practice may have required consideration. Having regard to that evidence, the Tribunal has some doubt as to actual destruction practice at the Pharmacy at the relevant time.
The terms of the practitioner's employment are in evidence (Annexure F to Ms Leonard's statement), and confirm that he was employed full time as Managing Pharmacist. The practitioner accepted in oral evidence that his position required him to manage dispensing, supervise all activities in the pharmacy, and maintain the DD book. While the Tribunal accepts that having trained in Queensland and worked there since first being registered in 1998, the practitioner may have been less familiar with legal and professional requirements in New South Wales, it would not characterise him as a junior pharmacist. The Tribunal finds on the basis of the evidence of Ms Summers that the practitioner routinely worked at the back of the Pharmacy in the dispensing area used for Webster packing, and that his role included supervision of the packing undertaken by pharmacy assistants.
Ms Summers' evidence was that the Webster packs were prepared two weeks in advance, whereas Mr Sung's evidence in his statement of 13 May 2020 was that it was done on a weekly basis. Mr Sung confirmed by letter on 20 March 2018 that Patient C's Webster packs were packed on a weekly basis. The Tribunal accepts that it is likely that if the regular practice was for fortnightly packing, in circumstances such as those for Patient C whose prescriptions changed frequently, packing was done more frequently. That was accepted by Ms Croker; however as Ms Croker acknowledged, the evidence did not confirm on what day of the week that occurred.
The practitioner has admitted to having taken on 22 July 2016, his last day working at the Pharmacy, a box of Ritalin tablets from one of the S8 drug safes, and a quantity of Antenex tablets from the dispensary, and placing them first in a pharmacy paper bag and then into his personal bag which he had in the dispensing area. Those actions were observed by Ms Steadman, and recorded on the Pharmacy CCTV.
The practitioner has explained that his purpose in doing so was to be able to demonstrate Webster packing to Queensland police at an interview scheduled for 25 July 2016. The practitioner admits that he printed and took with him Webster header labels containing identifying details of the patients in whose name those medications had been prescribed, and that he showed those to Queensland police without de-identifying them.
The Tribunal accepts the evidence of Ms Croker which was that if Queensland police were unfamiliar with the Webster packing process, it would have been possible for the practitioner to direct the police to videos or to use a placebo pack, or a pack with non-prescription medication. The Tribunal accepts that the medication was subsequently returned to Mr Sung at the Pharmacy.
The Tribunal accepts the evidence of Ms Summers and Ms Steadman, which was not challenged, that certain aspects of the practitioner's behaviour at work caused them concern. Ms Steadman referred to the practitioner having been "agitated" on the last couple of days he worked at the Pharmacy.

Findings on particulars 1, 2, 4 and 5

The practitioner has admitted the conduct particularised in particulars 1, 2, 4, and 5 of the Complaint. Particular 3, relating to entries in the drug register for the S8 medication the subject of particulars 1 and 2 was not pressed. Based on the practitioner's admissions, and the evidence of Ms Steadman, Ms Summers and Mr Sung discussed above, the Tribunal is satisfied that those particulars are proven.

Findings on particular 6

The practitioner denies particular 6, which is that he improperly obtained for his personal use 63 x 20mg Oxycontin tablets and 30 x 40mg Oxycontin tablets dispensed in the name of Patient C.
The Tribunal is required to determine: 1. Whether there should have been leftover S8 drugs dispensed in the name of Patient C, stored in the S8 safe; and 2. If so, whether the practitioner misappropriated those drugs.
Ms Croker's evidence was that based on her examination of the relevant records including the prescribing and dispensing records there were 63 Oxycontin 20mg tablets, and at least 30 Oxycontin 40mg tablets not accounted for, the latter on the basis that there should have been as at 26 May 2016 between 10 to 12 days supply of the 40mg tablets depending on what day of the week the Webster packing was done.
Confirmation of those calculations comes in the records provided by Patient C's GP as to her prescriptions for Patient C (tab 90), which includes the prescription change on 26 May 2016, and the Pharmacy Patient History report (tab 91). That report confirms that 84 tablets of Oxycontin 40mg had been dispensed on 10 and 12 May 2016 and 84 tablets of Oxycontin 20mg was dispensed on 19 May 2016. As at 12 May 2016 Patient A was taking 40mg Oxycontin three times daily, and as at 19 May 2016 she was also taking Oxycontin 20mg three times daily, and based on those records the Tribunal is satisfied that as at those dates, the quantities dispensed of each drug should have lasted Patient C 28 days. The prescription change to the total dosages of Oxycontin on 26 May 2016 meant that the 40mg and 20mg tablets were no longer required.
Patient C's prescription changed on 4 August 2016 and included Oxycontin 20mg until 1 September 2016. The Pharmacy dispensed 28 tablets of Oxycontin 20mg on 4 August 2016. That would not have been required had there been 63 leftover tablets from May 2016 in the S8 safe. Patient A was prescribed Oxycontin 40mg again from 1 September 2016, and Oxycontin 20mg from 5 September 2016, both ceasing on 19 September 2016. The Pharmacy dispensed a prescription for Oxycontin 40mg on 1 September 2016, and for Oxycontin 20mg on 8 September 2016 (tab 92). That would also not have been required if there had been leftover tablets in Patient C's name in the S8 safe.
There were two drug destruction visits after the practitioner's employment ended. The records annexed to Ms Leonard's statement confirm that no Oxycontin was recorded as being destroyed at the visit on 5 September 2016; while some Oxycontin 20mg was destroyed at the visit on 4 April 2017, that was only 14 tablets, and no Oxycontin 40mg was destroyed.
The Tribunal accepts the evidence of Ms Croker as to her calculations, based on a careful and thorough consideration of the documentary evidence. The Tribunal notes a query as to the numerical calculations of the number of 10mg tablets of Oxycontin required to make up Patient C's dose after 19 May 2016, namely whether it was two or three per day. The Tribunal also notes Ms Croker's reservations based on the absence of evidence as to which day of the week the Webster packing was done. The evidence does not address the possibility that an extra week of the Webster pack may have been prepared, or if there was an extra week's worth of the Webster packed, or when the Webster pack was picked up or started, what happened if it were returned.
Acknowledging those reservations, the Tribunal finds that as at 26 May 2016, there were Oxycontin 20mg and Oxycontin 40mg tablets dispensed in Patient C's name, which were no longer required, in the order of 63 for the former and at least 30 for the latter. Those quantities of drugs were not used to fill the subsequent prescriptions when Patient C's medications changed on 4 August 2016, and on 1 and 5 September 2016. Those quantities were not destroyed at the two following drug destruction visits. Based on the evidence of Ms Summers as to the Pharmacy practice, which the practitioner confirmed, the Tribunal is satisfied that those medications should have been kept in the Webster S8 safe, to be available for future Webster packs.
The practitioner queried Ms Croker about previous prescriptions. The Tribunal agrees with the HCCC that while it is possible that there may have been left overs from earlier prescriptions, based on the usual Pharmacy practice those also should have been in the S8 Webster safe, and so available for packing in the Webster packs prepared after the prescription changes in August and September. The fact that new prescriptions were dispensed suggests that there were not leftovers from those earlier prescriptions.
The HCCC submits that the Tribunal should find that the practitioner took the leftover drugs from the S8 safe, for the following reasons: 1. The practitioner had access to the S8 Webster safe; 2. The practitioner had the knowledge to be able to determine from the patient profiles that there was leftover medication dispensed in Patient C's name; 3. There was evidence as to the practitioner's unusual behaviour around the safes, including from Ms Summers that she thought she had seen him take drugs from a S8 drug safe on other occasions; 4. Ms Summers and Ms Steadman gave evidence that the practitioner had spent unusually long periods of time around the S8 drug safes including opening them and removing drugs without apparent reason; 5. The practitioner admitted misappropriating Ritalin, another S8 drug, from the Webster S8 drug safe, by taking drugs that had been dispensed in the name of another patient; 6. The practitioner has admitted and been convicted in Queensland of being in unlawful possession of controlled or restricted drugs, found in his possession on 22 May 2016 during the period he was employed at the Pharmacy; and 7. There is no other explanation as to how the leftover drugs dispensed in the name of Patient C went missing.
The HCCC submits that it is not necessary for the Tribunal to be satisfied as to any reason for the misappropriation of the Oxycontin. While acknowledging that its position is based on a form of tendency reasoning, which the courts treat with caution, the HCCC submits that there is no alternative explanation for the fact that the drugs were not in the safe.
The practitioner maintained his denial of particular 6. He submitted that there could be another explanation for the miscalculation of Oxycontin, and there could have been a spare Webster pack. The practitioner submitted that the Tribunal should not rely on Ms Summers' evidence about seeing him at the safe as if it had happened it would be recorded. He has taken responsibility for the Ritalin and Antenex, and others should take responsibility for the missing Oxycontin.
The Tribunal considers it possible that the practitioner took the leftover Oxycontin tablets from the S8 safe: he had access, he had the knowledge to determine what medications in the safe were not likely to be needed, and he had been observed behaving in an unusual manner around the safe. However, he was not the only person with access, and the evidence as to the Pharmacy practice on recording and managing destruction of surplus medications was not convincing so as to rule out any alternative explanation for the medications not being in the safe. While the Tribunal considers that it is plausible that the practitioner misappropriated the tablets, bearing in mind the seriousness of the allegation and the consequences, the Tribunal is not satisfied that the evidence supports a positive finding that he did.

Conclusion

The Tribunal agrees with Ms Croker's characterisation of the practitioner's conduct as found proven under particulars 1, 2, 4, and 5 as falling significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. On that basis he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law.
The HCCC pleads, on an "and/or" basis, that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law. As discussed in Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [31], s139B(1) of the National Law begins with the words "Unsatisfactory professional conduct of a registered health practitioner includes each of the following". Paragraphs (a) to (k) set out different forms of conduct which are, by force of the section, unsatisfactory professional conduct. Paragraph (l) then provides that "[a]ny other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" is also unsatisfactory professional conduct. As the Tribunal noted, "it is arguable that the word 'other' in s 139B(1)(l) limits the operation of the provision to conduct not falling within s 139B(1)(a) to (k)".
The finding that the practitioner's conduct falls within s 139B(1)(a) makes it unnecessary to consider whether a finding of unsatisfactory professional conduct under s 139B(1)(l) would be available, or if so, whether the practitioner's conduct could be described as "improper or unethical conduct relating to the practice or purported practice of pharmacy".

Protective orders

The practitioner has admitted, and the Tribunal has found, that he is guilty of unsatisfactory professional conduct. Accordingly, the Tribunal may make an order in the exercise of the general powers conferred by s 149A of the National Law. The power to make any of the orders specified is protective rather than punitive: Lee v Health Care Complaints Commission [2012] NSWCA 80.
The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 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.
At the conclusion of the hearing the HCCC submitted that the appropriate orders are to reprimand the practitioner and impose conditions on his registration, and to order that he pay the HCCC's costs. Since then the practitioner's registration has been cancelled by QCAT. The HCCC submits that the orders made by QCAT do not affect the Tribunal's power to reprimand the practitioner pursuant to s 149A(1)(a) of the National Law, and that s 149A(3) deals with a situation in which the Tribunal wishes to impose conditions in relation to a practitioner who is no longer registered. The effect of the order now proposed by the HCCC would be to require conditions to be imposed on the practitioner's registration if and when the practitioner seeks re-registration.
The relevant provisions are as follows: 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) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only - (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. …
The supplementary submissions provided by the HCCC explain that unlike the NSW National Law, the Health Practitioner Regulation National Law (Qld) (the Qld National Law) does not contain a requirement for a person whose registration has been cancelled in Queensland to seek a reinstatement order before they can apply for re-registration. The Qld National Law also does not include an equivalent of the review regime in Part 8 Div 8 of the NSW National Law. That means that if the practitioner wishes to seek re-registration after May 2021 he would apply in accordance with the ordinary registration process in Part 7 of the Qld National Law, by making an application to the National Board. If the Board decides to re-register the practitioner, that would be subject to any conditions the Board considers necessary or desirable in the circumstances, a provision common to both the NSW and Queensland legislation, s 83. That would encompass any conditions required to be imposed as a result of s 149A(3)(b). The National Board would be notified by AHPRA of any conditions imposed by the Tribunal.
The HCCC submits that the orders made by QCAT are relevant in identifying what is now needed to protect the health and safety of the public, but are not determinative of that matter, and they do not address the appropriate deterrent or denunciatory response to the separate conduct that is the subject of this proceeding. The proposed reprimand remains appropriate in light of that conduct, whether or not particular 6 is proven. The HCCC submits that it is still appropriate to impose conditions to take effect if and when the practitioner seeks re-registration. If matters change before then he can seek review of any conditions imposed by the Tribunal under Part 8 Div 8 of the NSW National Law, or he could seek a variation of the conditions from the National Board when he applies for re-registration.
The HCCC relied on the seriousness of the practitioner's conduct, even if particular 6 is not proven; the lack of acceptance of responsibility; the absence of an adequate explanation for taking S8 and S4 drugs and patient header labels to the police interview, demonstrating a lack of regard for appropriate professional standards; and the absence of any insight or responsibility, other than the apology expressed at the hearing. The HCCC proposes a condition requiring psychological treatment, on the basis that the practitioner may have been in a difficult mental state at the time; and a condition requiring mentoring by an experienced pharmacist for a period of 12 months, on the basis that by the time he can be re-registered the practitioner will not have been in practice for a long time.
The practitioner stated at the hearing that he accepted the proposed conditions, and a reprimand. He has no money to pay any order for costs.
The Tribunal considers the following matters are relevant in determining what protective order or orders should be made: 1. The practitioner's misconduct was serious, involving the inappropriate and unlawful taking from the Pharmacy of S8 and S4 medications, which have the potential for abuse or misuse and which are tightly controlled; 2. The explanation for that conduct was inadequate, and demonstrated a lack of understanding of professional responsibilities: if it were necessary to demonstrate to Queensland police how a Webster pack was put together in order to substantiate his explanation as to why the medications identified at para [5] of the QCAT decision were located at his home in May 2016, that could have been done using a placebo pack or by using non-prescription medications, and by de-identifying patient information; 3. The practitioner attempted to conceal his taking of the Ritalin and Antenex, as observed on the CCTV footage; 4. The shortcomings in the practitioner's performance of his professional obligations were not limited to the taking of the medications, and included the deficiencies observed by Ms Croker in the stocktake records, and keeping his personal bag in the dispensing area.
The practitioner was an experienced pharmacist, and while his qualifications and experience were primarily in Queensland, he was obliged to ensure that he was aware of and complied with New South Wales regulatory requirements.
The Tribunal considers that the practitioner's conduct reflects a serious breach of the trust and responsibility that the community expects of pharmacists, in dealing appropriately with dangerous drugs. Previous Tribunal decisions, including Health Care Complaints Commission v Pickett [2019] NSWCATOD 53 at [61], and Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 at [165], have emphasised the responsibility of pharmacists for the secure storage and safe administration of such medications, and the requirement that they act with integrity and scrupulously adhere to the statutory requirements for supply of those drugs.
In the Tribunal's view a reprimand is required in order to reinforce the importance of complying with professional standards. A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other practitioners; and further, upholds and reinforces the standards of the profession: Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [99].
In considering whether, and if so, what, conditions should be imposed on the practitioner's registration should he apply for re-registration, the Tribunal agrees with the HCCC that there is nothing to suggest that the practitioner has taken steps to address the shortcomings evident in his understanding of and compliance with acceptable professional standards. On the evidence before the Tribunal, there is nothing to suggest that by the time the practitioner is eligible to seek re-registration, some four years since his registration was suspended, any of the concerns that are the basis of the findings made in this proceeding will have been addressed. The Tribunal considers that it is appropriate, for the reasons submitted by the HCCC, to provide conditions to be imposed if and when the practitioner is re-registered.
The HCCC proposes a condition requiring the practitioner to attend for treatment by a psychologist of his choice for a period of 12 months or any further period determined by the National Board. The HCCC submits that counselling or attendance on a psychologist might help the practitioner to identify and address any underlying causes of the serious and unexplained misconduct that has been the subject of this, plus the Queensland, disciplinary proceedings.
The Tribunal is not persuaded that a condition requiring the practitioner to attend for treatment by a psychologist is warranted in the circumstances, or required in order to achieve the protective purpose under the National Law. The practitioner denied having any drug or alcohol issues. While the Pharmacy staff reported some erratic behaviour, and the practitioner is recorded as stating at the interview with the PRU on 2 August 2016 that he was on antidepressants, there is otherwise no evidence of any mental health issues in the material provided in these proceedings, or in the reasons for decision in the Queensland proceedings. Those reasons refer, at para [19], to the practitioner's financial circumstances, but otherwise note no negative material.
The HCCC proposes a condition requiring the practitioner to undergo mentoring by an experienced pharmacist, for a minimum period of 12 months, including authorising the mentor to report any concerns about his professional conduct or personal well-being. Further conditions, that the practitioner not work as a pharmacist in charge or as the sole pharmacist on duty, for 12 months or any further period determined by the National Board, and that he provide any pharmacy in which he obtains employment with a copy of this decision, are proposed. In oral submissions the HCCC referred to a requirement for supervision as a possible appropriate protective order.
The Tribunal is not persuaded that the proposed condition requiring mentoring would best achieve the protective purpose. The Tribunal requested from the HCCC a draft condition for supervision of the practitioner, and provided an opportunity for the HCCC and the respondent to make any further submissions on such a condition. The HCCC was of the view that a condition requiring supervision would be appropriate, and proposed a condition requiring the practitioner to practice under "indirect close supervision" by an experienced pharmacist, which would require that the supervisor be present within the pharmacy/ facility in which the person being supervised is providing services, and available to provide face to face communication with the person being supervised. No submissions have been received from the practitioner.
In considering how best to achieve the protective purpose, the objectives and guiding principles of the national registration and accreditation scheme, and the protection of the health and safety of the public as the paramount consideration must be borne in mind. The practitioner engaged in inappropriate and unlawful conduct in taking S8 and S4 medications from the Pharmacy. His conduct in doing so fell significantly below the standard reasonably expected of a practitioner of equivalent training and experience in fundamental respects, involving the handling and documentation of medications with significant potential for misuse and abuse, and breaches of patient privacy. There is no adequate explanation for that conduct.
The earliest the practitioner could seek to be re-registered is 20 May 2021, some four years since his registration was suspended. While a condition that he not work as pharmacist in charge or as the sole pharmacist on duty would be appropriate, should he be re-registered, the Tribunal considers that a period of supervision, and not mentoring, would further better protect the health and safety of the public.

Costs

The HCCC seeks an order that the practitioner pay its costs. The relevant principles were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, being that ordinarily costs should follow the event unless there are reasons to conclude otherwise. The purpose of these proceedings is protective rather than punitive, as mandated by the principles stated in ss 3 and 3A of the National Law. The HCCC was successful in establishing that the complaint was proven. While it did not establish that particular 6 was proven, the Tribunal has confirmed the finding of unsatisfactory professional conduct and has made protective orders in circumstances in which the practitioner's conduct has been found to fall significantly short of expected professional standards. There was nothing in the conduct of the proceedings that would make it unjust or unreasonable to award costs in favour of the HCCC.

Conclusion

The orders of the Tribunal are: 1. The Respondent is reprimanded pursuant to s 149A(1)(a) of the National Law. 2. The following conditions are to be imposed upon the Respondent's registration when he is registered pursuant to s 149A(1)(b) and (3)(b) of the National Law: 1. The Respondent is to practice under the supervision of an experienced pharmacist for a period of 12 months and any further period determined by the Council: 1. The Respondent is to nominate a registered experienced pharmacist who is unrelated to him to act as his supervisor for approval by the Council, within 14 days of commencing work; 2. The supervision relationship is to continue for a minimum period of 12 months from the date of the Council's approval of the supervisor, with the Council to determine if an additional period of supervision is appropriate; 3. The supervisor is to be present within the pharmacy/ facility in which the Respondent is providing services, and is to be available to provide face to face communication with him; 4. The Respondent is to authorise the supervisor to report to the Council if there is any concern about his professional conduct or personal well-being; 5. The Respondent is to authorise the supervisor to provide a report to the Council about his professional conduct and personal well-being at quarterly intervals and at the conclusion of the 12 month period of supervision; 6. The Respondent is to authorise the Council to provide the nominated and approved supervisor with a copy of relevant tribunal decisions; 7. The Respondent is to meet all costs associated with the supervision condition. 1. The respondent must not work as a pharmacist in charge for a period of 12 months and any further period determined by the Council; 2. The Respondent must not work as the sole pharmacist on duty for a period of 12 months and any further period determined by the Council; 3. As soon as practicable on commencing employment with any pharmacy the Respondent must advise the Council of the name of the pharmacy; 4. The Respondent must provide any pharmacy in which he obtains employment within 12 months of the date these conditions take effect with a copy of the decision and reasons of the Tribunal; 1. The Pharmacy Council of New South Wales is the appropriate review body for the purposes of Div 8 of Pt 8 of the Health Practitioner Regulation National Law (NSW); 2. The Respondent is to pay the costs of the Health Care Complaints Commission's costs of these proceedings pursuant to clause 13(1) of Schedule 5D of the Health Practitioner Registration National Law (NSW) 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: 08 December 2020

Health (Drugs and Poisons) Regulations 1996(Qld)

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

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Legislation Cited (3)

Cases Cited (18)