Health Care Complaints Commission v Ngo

The Application before the Tribunal

1. This is an application for disciplinary findings and orders against Mr Ngo brought under the Health Practitioners National Law NSW (Pharmacy). The application is made by the Health Care Complaints Commission. The application contains two complaints against Mr Ngo. The application also contains particulars in support. The same particulars are relied upon individually and cumulatively in support of both complaints.
2. The first complaint alleges that Mr Ngo has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a) and/or (l) of the Health Practitioner Regulation National Law (NSW) ("the National Law") in that he has: 1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of pharmacy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy
3. The second complaint alleges that Mr Ngo has been guilty of professional misconduct under section 139E of the National Law in that he has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration, or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
4. The particulars of the complaint are as follows: 1. Between 21 June 2013 and 23 September 2013 Mr Ngo dispensed 80 mg of Oxycontin to patients as set out in Schedule B to the complaint, in circumstances where he failed to recognise that an initial dose of 80 mg of Oxycontin was not in accordance with recognised therapeutic standards of what is appropriate for a first time user of the medication. 2. Between 21 June 2013 and 23 September 2013 Mr Ngo failed to cease dispensing Oxycontin, a Schedule 8 drug to patients as set out in Schedule B of the Complaint where the prescriptions appeared to be forged and/or fraudulent in circumstances where: 1. Mr Ngo was presented with multiple prescriptions from patients for Oxycontin 80 mg twice daily in circumstances where the patients had no history of use of the medication at a lower strength; 2. There was a lack of variation in the commencing dosages of Oxycontin in that all the patients were prescribed 80 mg; 3. The strength of dose of prescriptions for 80 mg Oxycontin, was usually for the end stages of cancer patients who had no other medical conditions for which they were being treated; 4. The prescribing medical practitioner was not prescribing any other medication and/or treating any other conditions which would reasonably be expected in a cohort of patients of this number and type. 1. Between 21 June 2013 and 23 September 2013 Mr Ngo inappropriately continued to dispense Oxycontin to patients as listed in Schedule C to the Complaint in circumstances where the medication was dispensed on subsequent prescriptions: 1. in increasing quantities: 2. on private prescriptions; 3. without any authority for prescribing Oxycontin in increasing quantities. 1. Between 9 May and 26 June 2013 Mr Ngo failed to appropriately verify the prescription of Oxycontin for Patients A, H, K, U, AE AL and AR with the prescriber prior to dispensing it, contrary to Clause 87 of Poisons and Therapeutic Goods Regulation 2008 (PTGR) in that contact with the purported prescriber was not made or was made using the telephone of the patient's agent or carer. 2. Between 21 June 2013 and 23 September 2013, when receiving computer generated prescriptions for Oxycontin 80 mg for patients as listed in Schedule B to the Complaint which did not comply with the Criteria for Issuing Non-Handwritten (Computer Generated) Prescriptions ("the criteria") issued by the New South Wales Ministry of Health, Mr Ngo failed to contact the prescriber in accordance with the Dispensing Practice Guidelines - Pharmaceutical Society of Australia to request prescriptions which complied with the criteria. 3. From approximately August 2013 Mr Ngo continued to dispense Oxycontin to patients as listed in Schedule B to the Complaint in circumstances where he failed to contact the Pharmaceutical Services Unit of the New South Wales Ministry of Health to convey his concerns about the prescribing patterns and to check whether the prescriber had approval to prescribe Oxycontin on a long term basis.
5. Through his legal representatives Mr Ngo provided a Response to the Particulars of the Complaint (undated). In this response Mr Ngo admitted facts only as they related to the factual matrix of having actually dispensed 80 mg of Oxycontin between 21 June 2013 and 23 September 2013 to patients as set out in Schedule B to the Complaint. As to the Particulars, with the exception of a limited admission in relation to Particular 5, these were in general terms either not admitted or denied. In essence Mr Ngo did not admit the conduct as alleged in either Complaint.

The Hearing

1. The documentary material before the Tribunal comprised the Applicant's bundle of documents (two volumes) filed on 30 June 2015, the Respondent's Response to the Particulars of the Complaint (undated) and a Report of Mr Paul Mahoney dated 24 June 2015 as well as several other exhibits also received into evidence at the hearing. The Applicant led oral evidence from Mr Gavrilovic, a Senior Pharmaceutical Officer with PSU and Mr O'Donnell, Peer Reviewer. The Respondent led oral evidence from Mr Ngo and Mr Mahoney, Pharmacist. All witnesses were cross examined on their evidence.

Opening Submissions

1. Each party made some brief introductory comments. For its part the Applicant pointed to the type, nature and extent of the prescriptions at a dosage at 80 mg as being factors that ought to have prompted Mr Ngo to have done more than what he did to check the providence of the scripts. It submitted that aspects of the prescriptions should have led Mr Ngo to exercise caution in dispensing the scripts in the absence of further inquiry.
2. The Respondent made its opening submissions after the presentation of the Applicant's evidence. For convenience those submissions will be dealt with in more detail later in this decision. However, it should be noted that when Mr Ngo had concerns about the prescriptions presented to him he contacted the prescriber using the details contained on the prescriptions to verify the prescriptions. He also claimed that this person told him he was pain specialist and wanted all medication to be dispensed from the one pharmacy. It is not in dispute that the person whom Mr Ngo contacted was posing as the prescribing medical practitioner and was part of the scheme of prescription fraud which was being perpetrated. Although it is now clear that the person who answered these calls was falsely representing themselves as the prescribing medical practitioner, for convenience the Tribunal will refer to this person as the prescriber.

Evidence of Aleksandar Gavrilovic, Senior Pharmaceutical Officer with PSU

1. Mr Gavrilovic is a Senior Pharmaceutical Officer with PSU. He interviewed Mr Ngo and prepared a report for the Principal Pharmaceutical Officer of the PSU dated 9 January 2014 which was in evidence before the Tribunal.
2. Mr Gavrilovic confirmed that he interviewed Mr Ngo on 2 January 2014. This interview was detailed in his report. He explained the purpose of the interview was to determine whether to withdraw Mr Ngo's authorities under section 18 AA and clause 175(1) of the Poisons and Therapeutic Goods Regulation 2008. He clarified that although the PSU is aware of the s.150 conditions imposed by the Pharmacy Council, the PSU is part of the Legal and Regulatory Services Branch of the NSW Ministry of Health, operating independently of both the Council and the HCCC. As the Tribunal understood his evidence, a PSU delegate exercises the power to withdraw the authorities. In addition when a practitioner applies to have conditions lifted the interview and report serve as a record of the decision making process.
3. Mr Gavrilovic referred to NSW Pharmacy Guild Bulletins issued in May 2013 and June 2013 in which reference was made to the phone number on scripts issued in the name of the relevant prescriber being bogus. In addition reference is made in the Bulletins for June and July 2013 to the phone being answered by someone purporting to be a secretary. Under cross examination he agreed that not all pharmacists read these Bulletins.
4. Mr Gavrilovic stated that Mr Ngo responded to questions in the interview in a forthright manner. He confirmed that he had said to Mr Ngo in the interview that he was not the only pharmacist to be conned in this way. In his experience, notwithstanding the existence of Regulations requiring Doctors to handwrite on computer generated scripts, he was aware of instances where Doctors do not. He conceded that when he approached the scripts in issue he did so in the knowledge that they were forgeries. He conceded that none of the scripts indicated that they were an initial dose to a particular patient. Mr Gavrilovic also gave evidence that although he had seen forged scripts he had not come across the type of story that had been presented to Mr Ngo. Namely that the cohort of patients were refugees with carers attending on their behalf to collect medication and where the medication was prescribed for pain management.

Evidence of Mr Michael O'Donnell - peer reviewer

1. Mr O'Donnell is a Pharmacist. He has been a registered Pharmacist since 1983. He is currently self-employed and practising as a locum Pharmacist in a community pharmacy setting. Over his career Mr O'Donnell has been employed as a Pharmacist Manager and self-employed owning two pharmacies. He was engaged by the Applicant to provide an independent peer review. To this end he prepared a report dated 16 June 2014. This report was subsequently supplemented by him in two other reports dated 8 August 2014 and 13 September 2014.

Report dated 16 June 2014

1. In his report dated 16 June 2014 Mr O'Donnell gave an opinion as to whether Mr Ngo ought to have realised that the 136 prescriptions purportedly issued by Dr Mohiuddin for Oxycontin 80 mg and dispensed by Mr Ngo between June and September 2013 were forgeries.
2. Mr O'Donnell made an overarching comment that detecting a forged prescription is sometimes easier in retrospect than at the time of dispensing. He commented that it was not uncommon for a carer to present at a pharmacy with a prescription for a third party. He observed that the fact that the prescriber was located some distance from the patients and in turn some distance from the pharmacist could be explained on a range of matters including that the carer lived in an area near to the pharmacy. The variations in the spelling of the medical practitioner's name may be overlooked when dealing with a seemingly valid prescription. In addition with a returning patient the computer field for the prescriber details is usually pre-populated with the prescriber's name from a previous dispensing and so it would be easy to miss the misplacement of a letter in a prescriber's name. Similarly he saw no reason why Mr Ngo ought to have noticed an incorrect address for the prescriber or inconsistencies in professional qualifications. Concerns about poor alignment of printing would also not raise concerns as it is not unusual.
3. However Mr O'Donnell believed Mr Ngo ought to have become concerned when presented with multiple prescriptions for patients all at the same dosage of Oxycontin 80 mg especially when the patient had no history of use at lower strengths. He referred to MIMS which states that Oxycontin doses of 80 mg, 120mg and 160 mg should only be used in opioid tolerant patients. In patients not previously exposed to opioids (opioid naïve) this tablet strength may cause fatal respiratory depression. He stated that Oxycontin has a usual starting dose of 10mg every 12 hours. Therefore he thought it odd that all patients were apparently initiated on a starting dose of 80 mg twice daily. He conceded the possibility that the initial patient who presented with a script on 9 May 2013 may have already had an earlier dose initiated elsewhere. However after Mr Ngo had been informed by the prescriber that he wanted prescriptions dispensed at the same pharmacy, it seemed incongruous that other patients then subsequently presented with the same 80 mg dose.
4. Mr O'Donnell was surprised that Mr Ngo who had previously only dispensed Oxycontin 80 mg occasionally did not recognise the escalation of Oxycontin purchases by his pharmacy. He believed Mr Ngo's suspicions should have been raised earlier as patients only presented with prescriptions for Oxycontin 80 mg and not varying doses. He referred to the strength of Oxycontin prescribed to usually being seen in end stage cancer patients. He noted that no other medical conditions appeared to be being treated. For example he queried the absence of other scripts for anti-depressant and anti-psychotic medications which he would have expected to be used in a cohort of patients of this type. He queried that if other medications were being dispensed elsewhere, then why were the scripts for Oxycontin not being filled at the same time. He believed that the standard expected of a practitioner of an equivalent level of training or experience was such that they should have been alerted to the possibility that the prescriptions were not genuine at a much earlier stage than demonstrated by Mr Ngo. Mr O'Donnell expressed the opinion that this departure from the standard was significantly below what is reasonably expected of a practitioner of an equivalent level of training or experience.
5. Mr O'Donnell stated it was common for a third party agent such as a carer to be supplied with medication. He had no criticism of Mr Ngo in this regard nor did he criticise his conduct in not seeking any proof of identity from the carer. He did not believe it was the pharmacist's responsibility to authenticate addresses written on the prescriptions. He had no criticism of dispensing merely because the prescriber was located some distance away in Ryde. He had no real criticisms of Mr Ngo using a carers phone to confirm details with the prescriber. Nor did he have any real criticism of Mr Ngo's failure to check the stolen script pad list recited in the Guild Bulletin. He explained that pharmacists are bombarded with large amounts of mail and have to prioritise what they will read. The Guild Bulletin is in the form of a newsletter and often contains information that may not be of interest to some pharmacists.
6. Mr O'Donnell thought it incongruous that a private prescription would ever be presented for a patient who had previously had a prescription as a PBS benefit. He formed the view that a private prescription was being presented to circumvent the extra online prescription check which would occur if a PBS prescription was dispensed. He believed that the standard expected of a practitioner of an equivalent level of training or experience would be to be alert to the possibility of a problem when presented with a prescription for an increased supply of Oxycontin.
7. Mr O'Donnell was critical of Mr Ngo in not insisting that the computer generated scripts he was given complied with the Criteria for issuing Non-Handwritten (Computer Generated) Prescriptions TG184 in that the prescriber must rewrite on the prescription in their own hand writing all the mandatory particulars. He believed Mr Ngo should have asked the prescriber for a correctly written prescription to be supplied to him, but he did note that prescribers often make this omission. However he believed the standard expected of a practitioner of an equivalent level of training or experience would be to contact the prescriber and ask for a complying prescription. This could have been done when the prescription was being verified. He believed that this departure from the standard was below what is to be reasonably expected of a practitioner of an equivalent level of training or experience.
8. Mr O'Donnell conceded that sometimes a pharmacist has to take at face value what is conveyed to them by the prescriber which is what Mr Ngo had done. However he noted that there were other forums for communicating possible problems with prescribing especially as it related to drugs of addiction. He suggested Mr Ngo could have contacted PSU at an earlier point in time to convey his concerns and check whether the prescriber had approval to prescribe drugs of addiction on a long term basis. He believed that it may take several prescriptions for a pattern to emerge, but he had real concerns that it took over 100 prescriptions for the same item for several patients for Mr Ngo to recognise this pattern and finally report it to PSU.
9. Mr O'Donnell believed that the standard expected of a practitioner of equivalent level of training or experience would be to recognise the pattern of unusual prescribing much earlier than Mr Ngo had and he believed his actions were sub-standard in that it took so long for him to report the matter to the PSU. Mr O'Donnell did not pinpoint a specific point in time when Mr Ngo ought to have recognised an unusual prescribing pattern.

Second report dated 8 August 2014

1. Mr O'Donnell provided a second independent expert report to the Applicant. This report had come about because the Applicant sought further clarification as to the nature and extent of the level of criticism that could be levelled at Mr Ngo depending on whether he contacted the prescriber on the first occasion a script was presented to him on 9 May 2013 and whether he had used a carers mobile phone to do so. Mr O'Donnell was also asked to clarify at what point in time or after the presentation of how many prescriptions should Mr Ngo have contacted the PSU and ceased dispensing on the prescriptions.
2. Mr O'Donnell stated that if Mr Ngo had not contacted the prescriber to verify the prescription on 9 May 2013 or had used the Carer's mobile phone on the first occasion to contact the prescriber, he believed that this conduct fell significantly below what is reasonably expected of a practitioner and invited strong criticism. However, he was not critical of Mr Ngo for merely using the Carers mobile if he had previously contacted the prescriber using his own pharmacy phone line.
3. Mr O'Donnell was reluctant to identify precisely when Mr Ngo should have recognised a pattern of unusual prescribing. However he thought that Mr Ngo ought to have recognised a pattern at around twenty prescriptions and therefore was inclined to state that he should have become suspicious by at least mid-July 2013.

Third report dated 13 September 2014

1. Mr O'Donnell was provided with a copy of a submission dated 11 September 2014 made to the Applicant by Mr Ngo. Mr O'Donnell was asked to advise whether the information contained in the submission altered his criticisms or the strength of his criticisms in his previous reports.
2. Mr O'Donnell noted that as Mr Ngo had affixed labels to the back of the prescription duplicates he withdrew his earlier criticism. In other respects Mr O'Donnell held to his earlier reports.

Examination in Chief - Mr O'Donnell

1. Mr O'Donnell explained that with the exception of the script presented on 9 May 2013 he had formed a view that subsequent scripts as presented to Mr Ngo for other patients were initiating doses of Oxycontin 80 mg. In forming this view he had relied on material presented to him that Mr Ngo had stated that he had been told by the prescribing medical practitioner that all dispensing was to be done through his pharmacy. Accordingly as time went on and new patients presented to Mr Ngo's pharmacy for the first time with a script for 80 mg of Oxycontin he had viewed this to be their initiating dose.
2. Mr O'Donnell was asked to explain the relevance of his observations about the absence of other medications being taken by members of the patient group. Mr O'Donnell stated that based on his experience as a pharmacist and given that the scripts for pain management were to be presented to the one pharmacy, he had assumed that people on doses of pain killer at the level prescribed might need medication for a range of comorbid conditions. He referred to other medication that may be needed for breakthrough pain or depression due to pain. In addition patients may have other conditions such as schizophrenia or blood pressure for which medication was required.

Mr O'Donnell - Cross Examination

1. Mr O'Donnell agreed that when a prescription was presented for the first time at Mr Ngo's pharmacy he had assumed that it represented the initial or first dose for that particular patient. He conceded he could have been wrong about this because he had not been presented with full patient histories.
2. Mr O'Donnell acknowledged that MIMS records Oxycontin as being used for moderate to severe chronic pain and is therefore not limited to end stage cancer patients. He agreed that the use of Oxycontin 80 mg was consistent with a person being under the care of a pain management specialist and accepted that a specialist would understand Oxycontin. He agreed that the telephone contact by Mr Ngo with the prescriber to verify the prescriptions was an appropriate response by him in the circumstances.
3. Mr O'Donnell acknowledged the reluctance he had expressed in his report of 8 August 2014 to identify a particular date or a specific number of presented prescriptions by which point Mr Ngo ought to have recognised a trend in prescribing and reported the matter to PSU prior to when he did on 24 September 2013. He explained the basis for his reluctance on the fact that it was a question for the dispenser having regard to the circumstances and agreed that pharmacists could differ.
4. However applying his experience as a pharmacist Mr O'Donnell held firm in his opinion that in this case even in the light of the efforts Mr Ngo made to verify the scripts with the prescriber that a pattern was emerging of prescriptions for Oxycontin at the same strength of 80 mg with no other differing strengths across a number of patients and should have been discerned earlier by Mr Ngo before ultimately being reported by him to PSU on 24 September 2013. He subsequently shifted the date Mr Ngo ought to have contacted PSU as suggested in his second written report of mid-July 2013, and ventured that by August 2013 Mr Ngo ought to have contacted PSU.
5. Mr O'Donnell stated that in his experience a patient at an 80 mg dose of Oxycontin might require other prescription analgesic for breakthrough pain for example Panadeine Forte (containing paracetamol 500mg and codeine 30mg) or Endone 5mg (containing oxycodone). Generally an immediate release analgesic is given to provide relief until the next dose of Oxycontin 80 mg is due. Mr O'Donnell agreed that a medical practitioner, over a period of time, would determine the dose of immediate release product required by the patient and adjust the dose of the controlled release drug accordingly.
6. Mr O'Donnell stated he had never seen a patient initiated on a dose of 80 mg Oxycontin. In his experience a dosage of 80 mg was an unusual starting dose and it should send "alarm bells ringing". He considered 10-20 mg to be a more common or normal dose level. The point at which the dose became a risk for those who are narcotic naïve would be 30mg. Potentially anything above 30 mg could be lethal and an opiate naïve person could die if given a dose of 40 mg.
7. Mr O'Donnell agreed when seeking confirmation about a prescription from a prescriber, he would accept their authority and if told that they were a pain specialist he would accept this as well. However, if the same pain specialist over a period of time was giving the same drug at the same dose to different patients he would be concerned about the prescribing pattern and would not just accept what a prescriber told him. He would make other inquiries such as contacting PSU.

Respondent's Opening submissions

1. The Respondent submitted there was no issue that Oxycontin had been dispensed by Mr Ngo. What was in issue was whether the doses were initial doses. Mr Ngo did not admit that he ought to have recognised the scripts as initial doses or that he knew that the patients had no prior use of Oxycontin. There was no proof that the scripts were commencing doses of Oxycontin or that Mr Ngo should have known they were commencing doses. In relation to Particular 2 paragraph (c), Mr O'Donnell had conceded that Oxycontin 80 mg is not only used for end stage cancer. There was an assumption that the patient group was not receiving treatment from a GP in addition to a pain specialist which could explain why the purported prescriber was not treating and prescribing for other related conditions. Where Mr Ngo was concerned about scripts he contacted the prescriber for verification. Although Mr Ngo admitted that on some occasions prescriptions were not properly filled out by the prescriber he pointed to his efforts to verify the scripts with the prescriber. When Mr Ngo became concerned about the pattern of scripts he appropriately contacted PSU.

Mr Paul Mahoney

1. Mr Mahoney is a pharmacist of some 51 years standing. He has provided expert evidence over 25 years. He provided a written report dated 24 June 2015. His report was augmented by his Curriculum Vitae which was tendered at the hearing and became an exhibit.
2. Mr Mahoney's written report was completed in the light of the Complaint and the documents tendered by the Applicant in support of the Complaint. In his report he made the following observations:

• There has been a rapid increase in the illicit use of Oxycontin in the community in recent years. In the last 12 to 18 months it appears to have been accompanied by sophisticated methods of acquisition and distribution
• In his experience the extent of this issue in 2013 was less than it is now. He doubted that most pharmacists engaged in community practice would have been aware of the sophisticated means used by unscrupulous persons to acquire Oxycontin
• In this instance the use of forged stationery, a fictitious prescriber and the scenario involving "Afghan Refugees" created a convincing situation.
• Mr Ngo seems to have dispensed Oxycontin upon presentation of prescriptions which appeared to be legitimate
• When presented with prescriptions Mr Ngo carried out checks based on information from carers and supplied the medication along with appropriate counselling
• When Mr Ngo's suspicions were aroused he contacted PSU

1. Mr Mahoney offered the following conclusions based on the accuracy of the version of events provided by Mr Ngo:

• Mr Ngo acted in good faith in dispensing the prescriptions presented but probably demonstrated some naivety in regard to the illicit uses of Oxycontin however its illicit use was not widely known in early 2013
• As the patients were allegedly asylum seekers their medicare status would have been unknown and hence their entitlement to PBS medication would also be unknown. Prescribing Oxycontin as a private item in relatively common but usually in the area of Worker's Compensation.
• The issue of increasing quantities (not as a PBS item) should have raised alarms with Mr Ngo. Oxycontin is normally prescribed as a twice daily dosage and any increase in frequency of dosage raises the possibility of toxicity and the need for consultation with the prescriber. Although Mr Ngo did contact the prescriber on a number of occasions and accepted his reassurances he perhaps should have sought professional advice at this stage.
• Similarly, when reassurance was sought for the frequency of prescriptions being presented additional professional advice would have been prudent.
• He believed Mr Ngo had been the victim of an elaborate scam.

1. In his oral evidence Mr Mahoney clarified that the persistent provision of non-PBS quantities that is; more than the standard pack size of 28 tablets, ought to have raised questions for Mr Ngo. He believed it would have been prudent to contact the prescriber but also to speak to a pharmacy colleague to seek their opinion or thoughts. Another avenue would be for a pharmacist to contact the Pharmaceutical Society of Australia (PSA) or the Pharmacy Guild of Australia (PGA).
2. Mr Mahoney agreed with propositions put to him that one pharmacist may recognise a pattern of prescribing which would prompt concerns quicker than another, and the appropriate response is determined by the context.
3. In cross examination Mr Mahoney stated that the consequences of giving an 80 mg Oxycontin tablet to a person who was opiate naïve and had not been on a lower dose, was serious respiratory failure and prudent practice would be to ask the patient what strength of Oxycontin they had been on before and for how long. If it was not possible to check with the patient then it would be appropriate to check with the prescribing medical practitioner.
4. Mr Mahoney was cross examined about the dosage level of Oxycontin in this case in the context of a cohort of patients and all from the same medical practitioner. He responded that the dose was standard of two tablets per day at 12 hour intervals. He was asked about the use of Oxycontin for breakthrough pain. He stated that it was common practice to use a short term medication such as Endone for breakthrough pain. He was asked would it alarm him if a prescriber suggested that a third tablet of 80 mg Oxycontin be used for breakthrough pain. He replied he would not be alarmed but he would speak to the prescribing medical practitioner.
5. In response to questions from the Tribunal as to what questions a pharmacist might ask a prescriber about the use of a third tablet of 80 mg of Oxycontin for breakthrough pain, Mr Mahoney identified the time of the dose and the period of time between the three doses. He explained that this was because over a period of time the drug accumulates and can become toxic. He was also asked whether as a pharmacist contacting the prescriber he would have had a clinical suggestion for dealing with breakthrough pain. He replied that breakthrough pain is generally covered by the administration of Endone. He agreed that an alternate clinical way of dealing with the issue was for a lower dose of Oxycontin such as the 40 mg strength to be prescribed.
6. Mr Mahoney conceded in cross examination that a focus of his examination of Mr Ngo's conduct was whether he was sufficiently alert to fraud. This was because it had been established that the prescriptions in issue were fraudulent. He agreed that all pharmacists need to be alert to fraud.

Mr Ngo's evidence

1. Since being registered as a Pharmacist Mr Ngo has not been the subject of any disciplinary complaints or had any adverse findings made against him in relation to his practice as a pharmacist.
2. From May to September 2013 two men attended Mr Ngo's pharmacy and presented a number of prescriptions for Oxycontin. They claimed to be carers for a number of refugees who were patients of Dr Mohiuddin. The second man took over the first man's role after about two months. Both men were of middle-eastern appearance. The carers did not produce any identification. Mr Ngo explained that he did not ask to see any identification from the carers as his primary concern was the verification of the prescriptions. The first time each of the carers attended the pharmacy Mr Ngo rang the prescriber. He was advised on both occasions that the man was a social worker who was authorised to collect the medication on behalf of the patients.
3. On 9 May 2013 a prescription for Oxycontin 80 mg was presented by the first carer to Mr Ngo's pharmacy for the first time. On its presentation Mr Ngo rang the telephone number written on the prescription to verify the prescription with the prescriber. He rang using a mobile phone belonging to the carer as the pharmacy line was busy. He spoke to a person whom he believed to be the prescribing medical practitioner. He was advised that the prescriber was assisting in pain management for Afghan asylum seekers who had been involved in boat tragedies near Christmas Island. He was also advised that the Carer was a volunteer for the Afghan and Turkish communities and was providing this service because the refugees could not speak English. The prescriber also stated that he preferred that the carer only purchase the medication from one pharmacy so that he could monitor the dosages and supplies of Oxycontin. The prescriber never told Mr Ngo why his pharmacy was picked or preferred to be the dispensing pharmacy for the purposes of monitoring.
4. Mr Ngo believed this to be a plausible account. The carers were presentable and did not appear to be agitated, concerned or in a hurry to have the medication dispensed. There was nothing about the prescriptions themselves that led Mr Ngo to think that they were anything other than legitimate. Over the course of dispensing the medication Mr Ngo rang the prescriber on at least eight occasions. Mr Ngo provided phone records showing that seven calls were made to the telephone number listed on the prescription.
5. On some occasions after contacting the prescriber to seek verification Mr Ngo recorded his contact with a handwritten note on the relevant script. He did this on 26 June 2013 in relation to one script (patient AE) and on 22 July 2013 in relation to three scripts for (patients P, Q and C)
6. Mr Ngo maintained a number of records of his conversations with the prescriber. Through his computer dispensing program Mr Ngo was able to add comments in relation to particular patients. A screenshot of these comments was tendered as part of the bundle of documents but a more legible copy was supplied as an exhibit during the hearing. In addition copies of Clinical Intervention Records in respect of particular patients made by Mr Ngo formed part of the bundle of documents. Finally, for the purpose of these proceedings Mr Ngo had prepared a document where particular patients had supply interval issues and what action, such as counselling, intervention or a comment recorded in the dispensing program, which he had taken in respect of them.

Mr Ngo - Cross Examination

1. Mr Ngo was asked to explain what it was that prompted him to contact PSU at the time that he did on 24 September 2013. He responded that he was just concerned about the prescribing pattern. Mr Ngo was pressed about the basis for his concern and the trigger for reporting his concerns in September 2013. He replied it was just the script as a whole and when dispensing 3 or 4 scripts in isolation one does not worry too much but when prescribing increases a pattern is noticeable. He referred to his staff problems at the time and that as soon as it became apparent and of concern to him he contacted PSU. Mr Ngo appeared to suggest that prior to 24 September 2013 when he had concerns he dealt with these concerns by contacting the prescriber. Although Mr Ngo agreed with the suggestion that his concerns crystallised when he made his report to PSU on 24 September 2013, his evidence was not clear as to what it was that led his concerns to crystallise. Specifically he was not able to articulate what in particular underpinned his view that a pattern was apparent at that point in time as distinct from a pattern existing at an earlier point in time.
2. Mr Ngo's attention was drawn to a copy of the Copy of Dangerous Drug register maintained at his pharmacy. A Dangerous Drug register is required to be kept by pharmacists under the New South Wales Poisons and Therapeutic Goods Act 1966. It records all Schedule 8 medications received and dispensed at the pharmacy. It contains information such as the date a particular drug was dispensed, the patients name and the authorising medical practitioner. It also enables a pharmacist to keep a running tally of medication that comes into and out of the pharmacy. It lists the balance of medications on hand and thus enables a pharmacist to manage future orders. The register is reviewed by the New South Wales Department of Health and is the official ledger for the management of all drugs of addiction including Oxycontin purchased and later dispensed through the pharmacy.
3. Mr Ngo agreed that in relation to the records for Oxycontin 80 mg the first record of the relevant prescriber appears in the register towards the bottom of page 83 for a date in May 2013 and the same prescriber continues to appear in the majority of scripts for five consecutive pages in the register until page 88. These pages cover a period from May 2013 to mid-September 2013 and record multiple entries in each month of this period for the same prescriber. It was put to Mr Ngo that on a fair reading of the register it was possible to discern a pattern of dispensing in relation to the relevant prescriber from about the middle of page 84 being toward the end of June 2013. Mr Ngo replied by referring to the prescriber being a pain specialist. He agreed that the prescriber was prescribing regularly but this was because he was a pain specialist. He acknowledged that the prescriber was not entered in the registers maintained for other strengths of Oxycontin being 10, 15, 20, 30 or 40mg. However he did not agree with a suggestion put to him that the combination of regularly prescribing Oxycontin 80 mg only and not lesser strengths was a way of discerning a pattern about the prescriber. This was because he believed the prescriber to be a pain specialist.
4. Mr Ngo stated that after he reported his concerns to PSU on 24 September 2013 he did not dispense any more Oxycontin pursuant to a prescription presented from the relevant prescriber. He claimed that the next time a prescription was presented to him by the Carer he refused to dispense the medication. In response to a series of questions as to why he stopped dispensing the medication after 24 September 2013 Mr Ngo had some difficulty in explaining his reasons. He thought someone from PSU had told him that the scripts were forgeries but he could not recall who had told him this or when.
5. It was also suggested to Mr Ngo that with hindsight he should have been alerted earlier to a pattern. Mr Ngo rejected this suggestion on the basis that he had contacted the provider on about eight different occasions and had been told that the prescriber was providing pain management to survivors of the Christmas Island boat tragedy. He accepted that 80 mg of Oxycontin could be categorised as a high dose and it was used to address chronic pain. However, his evidence was to the effect that he did not ask the prescriber the reason for the specific use of Oxycontin. He did not seek any detail from the prescriber as to the nature of the pain. He did not ask the prescriber why all patients were receiving the same dose of 80 mg of Oxycontin. He explained not seeking this information on various matters such as it was not his job, the prescriber was the pain specialist and he accepted the prescriber's judgment.
6. Mr Ngo's evidence was to the effect that the first time a script was presented on behalf of a new patient he contacted the prescriber to verify the prescription. However his evidence was also to the effect that he did not check with the prescriber whether the patient had been prescribed with a previous dosage and was not opiate naïve. He explained this on various matters including that it was not necessary as he was familiar with the medical practitioner and again by referring to the medical practitioner being a pain specialist.
7. When Mr Ngo contacted the prescriber to verify the script the first time a prescription was presented for a new patient or to raise a query about a script, on some occasions he contacted the prescriber using the pharmacy phone and on other occasions when the pharmacy phone was unavailable he used a Carer's mobile phone.
8. Mr Ngo was questioned about particular telephone calls he made to the prescriber and the notes he took arising from those conversations.
9. On 26 June 2013 Mr Ngo contacted the prescriber about patients BA and AE. The prescriber reassured Mr Ngo that he was treating the patients for pain management, they were both refugees and were not opioid dependent. Mr Ngo specifically recorded in his screenshot notes in respect of BA that he was non drug dependant and confirmed the quantity of 56 tablets. In respect of Patient AE Mr Ngo spoke to the prescriber for the purposes of verifying the prescription. Mr Ngo made a note of this part of the conversation on a duplicate copy of the script for AE. According to the phone records supplied by Mr Ngo this conversation lasted 70 seconds. It was suggested to Mr Ngo that this was quite a lot of communication to pass between him and the prescriber within 70 seconds and perhaps he had overstated the content of the call. Mr Ngo responded that he had a record of the matters discussed.
10. On 1 July 2013 Mr Ngo contacted the prescriber about a script for patient AR because he was concerned that the supply interval was too close to the previous script. The prescriber advised Mr Ngo that he was aware of the additional dose but that the patient required an extra tablet with his evening dose on days when he experienced extreme pain. Mr Ngo was asked whether he had any discussion with the prescriber as to whether a lesser strength of Oxycontin could be used. Mr Ngo responded that this was not required and although he could make a suggestion to the prescriber he was not qualified. He assumed the prescriber would have considered this. As the prescriber was a pain specialist, he was not in a position to question.
11. Mr Ngo was questioned about patient P where again the interval between presented scripts was too short. In the dispensing screenshot he recorded as follows: "1/8/13 supply interval too close to pick up tabs in a week." It was suggested to Mr Ngo that in terms of monitoring the supply of medication that it would be good practice to talk to the prescribing medical practitioner to advise that the patient was attempting to collect the medication too early. Mr Ngo responded that the medical practitioner would be aware of this because the script would have been written the same day to avoid the patient coming back. As to whether the prescriber told Mr Ngo this or he assumed it, he could not recall.
12. On 30 August 2013 Mr Ngo contacted the prescriber about the increased quantity of 56 to 84 Oxycontin tablets prescribed for patient H. In his written note Mr Ngo recorded that the prescriber stated that the patient frequently took an extra tablet for breakthrough pain. In his oral evidence Mr Ngo added that he thought that the prescriber explained to him that the patient had taken other medication for breakthrough pain without success. He did not obtain any detail from the prescriber as to what medication had not been successful for the breakthrough pain but he had consulted MIMS which said that Oxycontin at 30 or 40 mg can be given for breakthrough pain. He was asked whether he thought it prudent to put a note in his own records about the patient's breakthrough pain not being adequately addressed through other medication. He replied he did not have to and he was under time constraints.
13. Mr Ngo agreed with the suggestion that if the patient was taking an extra tablet he was in effect taking 3 tablets per day which amounted to a total daily dosage of 240 mg as distinct from 160 mg per day. He was asked about what conversation he had with the prescriber given that history. In response he stated he did not think to ask the prescriber if the tablet should be dispensed every 8 hours when needed. Rather he thought an extra tablet would be taken in the morning or night. In response to a question about what thoughts he had about speaking to the prescriber about alternatives to a patient frequently taking 3 slow release tablets he responded that he spoke to the Carer and the prescriber had left instruction. As the Tribunal understood his evidence he did not turn his mind to these matters and simply followed the instruction of the prescriber as per the prescription.
14. Mr Ngo was alerted to a statement dated 14 March 2014 made through his lawyers and provided to the HCCC in response to their investigations into his conduct. In this statement Mr Ngo provided details about the content of his telephone conversations in 2013 with the prescriber and a number of conversations were referred to which occurred on 9 May, 17 June, 26 June, 1 July, 22 July, 24 July, 7 August and 30 August. It was put to Mr Ngo that this statement served as an opportunity to provide details about his conversations with the prescriber about treatment for breakthrough pain although the written statement was largely silent about breakthrough pain. Mr Ngo replied he could only write what is recorded. He conceded that the evidence given by the experts during the course of the hearing jogged his memory about breakthrough pain. He denied that he had tailored his oral evidence to meet the expert's evidence about breakthrough pain.
15. It was put to Mr Ngo that by August 2013 he was concerned about the prescribing pattern. He refuted this and replied that he rang the prescriber when he had concerns. It was pointed out to Mr Ngo that by August the following things had occurred: the amount of some tablets prescribed had increased from 28 to higher amounts; he had sufficient questions in his mind to raise the issue of whether patients BA and AE were drug dependent with the prescriber (26 June); the prescriber had told him that patient AR was taking more than two tablets per day (1 July); and supply intervals were too close for patient AS (30 July) Mr Ngo did not disagree with these facts.
16. Mr Ngo stated he was not aware of any Pharmacy Guild Bulletins regarding stolen scripts. He added that due to staff issues and time constraints he had not been able to go through the Bulletins although he was aware that the Bulletins traditionally include information on stolen script pads. As the Tribunal understood it from Mr Ngo's evidence he was drawing a distinction between stolen prescription pads, and the computer generated scripts which had been presented to him. Mr Ngo was asked to comment on Mr Mahoney's evidence that it would have been prudent to speak to another pharmacist. Mr Ngo agreed he did not do this but referred to his contact with the prescriber, carers, and the account which had been given to him that the patients were refugees.
17. Mr Ngo was asked whether as a pharmacist he had not wanted to check clinical decisions as to whether he ought to continue to dispense. He replied that his job was to make sure that the patient took the medication correctly and to check with the medical practitioner. Mr Ngo was pressed as to whether with the benefit of hindsight it would have been prudent to contact a colleague. Mr Ngo conceded he could have done more however his evidence about what specific steps he would take when faced with making a clinical decision was not confident. After a number of questions and suggestions as to what steps he could take he offered somewhat hesitantly that he might ring a colleague and after further questioning mentioned the name of a colleague in Ryde although conceded he had never contacted this colleague.
18. Mr Ngo conceded that prior to making his report to PSU on 24 September 2013 he had not been troubled that the cohort of patients were all prescribed Oxycontin 80mg the maximum available strength. Towards the end of cross examination he agreed that in hindsight he should have been troubled earlier and looking back he accepted that a responsible practitioner would have recognised concerns earlier.
19. Since conditions were placed on Mr Ngo's practice he had employed another pharmacist to undertake the dispensing of Schedule 4 and 8 drugs. This has meant Mr Ngo has accommodated additional costs. During the relevant period Mr Ngo faced staff challenges due to key staff being on extended leave. For example, Mr Ngo's dispensing assistant, who had been with him for 6-7 years, went on maternity leave just before March 2013. These staffing difficulties led to an increase in paperwork and stress. Although Mr Ngo gave evidence that the stress may have affected his judgment in certain ways, he maintained that he dispensed medication in accordance with the prescriber's instructions and when he had concerns he contacted the prescriber. He conceded that the stress he as under at the time may have been a factor in the time taken to contact PSU but also identified his own background as a refugee leading him to be compassionate towards the particular patient cohort.

Submissions

1. The gravamen of the Applicant's contentions is that Mr Ngo engaged in conduct that demonstrates the judgment possessed or care exercised by him in the practice of pharmacy was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The Applicant submitted that the individual matters as particularised were signposts as to a general lack of judgment and/or exercise of care by the practitioner, which was a significant departure from the standard reasonably expected. The Applicant canvassed the orders that the Tribunal may make if a finding of professional misconduct were to be made, such as cancellation or suspension of Mr Ngo's registration. A period of 6 to 12 months was said to be appropriate on cancellation and a period of 3 to 6 months on suspension. If the Tribunal was not minded to cancel or suspend Mr Ngo's registration, the Applicant sought orders of reprimand, the attachment of conditions to Mr Ngo's registration as a pharmacist as it related to substances detailed in Schedule 8 and 4D of the NSW Poisons List, mentoring and further training.
2. The Respondent submits that Mr Ngo accepts that his conduct in part fell short of acceptable standards but submitted that his conduct did not fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The submissions pointed to Mr Mahoney's opinions that although Mr Ngo could have reported the matter earlier or sought some guidance from an independent source, he expressed the view in his written report that Mr Ngo was only slightly below the standard reasonably expected of him.
3. It was submitted that Mr Ngo was the subject of a sophisticated fraud and he held the honest belief that he was dealing with a legitimate prescriber. He had reported the matter to the PSU because of prescribing habits of the prescriber and not because he was suspicious as to the prescriber's bona fides. During the relevant period being June to September 2013, it was said Mr Ngo dispensed on average 150 prescriptions per day and totalling some 13,000 prescriptions. The prescriptions that were the subject matter of the application represented approximately 1% of the prescriptions filled by him during that time. The Tribunal notes that in calculating this percentage the Respondent does not appear to draw a distinction between general prescriptions and those that relate to Schedule 8 drugs of addiction or Schedule 4D restricted substance drugs.
4. The Respondent submitted that as far as Mr Ngo was concerned the cohort of patients were not first time users of the medication and his pharmacy was being used by the prescriber to assist in the control of the dispensing of Oxycontin. There was no proof that the patients had no history of use of the medication at a lower strength, and the evidence did not support a finding that the prescriptions appeared to be forged and/or fraudulent. Mr Ngo had established the bona fides of prescriptions and both Mr O'Donnell and Mr Mahoney agreed that once this was done dispensing would continue. When Mr Ngo did become suspicious of the prescribing pattern in September 2013 he reported the matter to PSU. It was submitted that whilst both Mr O'Donnell and Mr Mahoney expressed the view that Mr Ngo could have reacted earlier than he did, as to when this should have occurred it was submitted it was difficult to be precise. Reference was made to Mr O'Donnell's evidence which at different times expressed different conclusions as to when external assistance should have been sought. It was submitted that because of this lack of specificity as to when Mr Ngo should have sought external assistance the Tribunal should be slow to conclude that his conduct fell significantly below the standard to be expected of him and did not constitute unsatisfactory professional conduct.

What must be decided

1. The Tribunal firstly needs to determine what particulars if any as specified in the Complaint are established by the evidence. Once that has been done the Tribunal needs to determine whether the Particulars which have been established in relation to Complaint 1 ground findings of unsatisfactory professional conduct. As to Complaint 2 the Tribunal is obliged to consider whether the established Particulars of Complaints 1 and 2 are of a sufficiently serious nature to constitute professional misconduct.
2. Unsatisfactory professional conduct is defined in s 139B of the National Law. Professional misconduct is defined in section 139E of the National Law.

Findings

1. The uncontested evidence indicates that between 21 June 2013 and 23 September 2013 Mr Ngo dispensed 143 prescriptions for Oxycontin 80 mg in respect of 68 patients as set out in Schedule B of the Complaint.
2. The Tribunal makes the following findings in relation to the particulars: Particular 1 - Between 21 June 2013 and 23 September 2013 Mr Ngo dispensed 80 mg of Oxycontin to patients as set out in Schedule B to the complaint, in circumstances where he failed to recognise that an initial dose of 80 mg of Oxycontin was not in accordance with recognised therapeutic standards of what is appropriate for a first time user of the medication.
3. The Applicant contends that regardless of whether the dose was in fact the "initial dose" as in the first dose for each patient, in every circumstance that a prescription was first presented to Mr Ngo for a patient in the cohort it was for the highest available dose of Oxycontin without material being available to Mr Ngo of any past prescribing history. The Respondent sought to make much of there being no evidence which excluded the possibility that patients may have had other doses previously filled elsewhere or that assumptions were made that the prescriptions presented were indeed originating doses. Equally, however in the Tribunal's view Mr Ngo did not have any material available to him that this was in fact the case.
4. Although Mr Ngo made efforts to contact the prescriber to verify scripts when they were first presented to him he did not seek any information as to the patients past history. Mr Ngo acknowledged in his own evidence that 80 mg constituted a high dose. Yet he did not ask the provider the reason for the specific use of Oxycontin at a dosage of 80mg. He did not seek any detail from the prescriber as to the nature of the pain. He explained not seeking this information on the basis that such matters were not his job and the prescriber was the pain specialist.
5. The Tribunal accepts the evidence of Mr O'Donnell which indicates that a dosage level of 80 mg was unusual and it should send "alarm bells ringing". His evidence was to the effect that the point at which the dose became a risk for those who are narcotic naïve would be 30mg. Potentially anything above 30 mg could be lethal and an opiate naïve person could die if given a dose of 40 mg. This evidence was also consistent with that Mr Mahoney which was that the consequence of giving an 80 mg tablet to a person who was opiate naïve and had not been on a lower dose was serious respiratory failure. He stated that prudent practice would be to ask the patient what strength of Oxycontin they had been on before and for how long. If it was not possible to check with the patient then it would be appropriate to check with the prescribing medical practitioner.
6. These are matters to which Mr Ngo ought to have had regard. They should have caused him to ask more questions of the prescriber and depending on the answers he received potentially conduct further inquiries. Mr Ngo contacted the prescriber only to obtain verification of the contents of the prescription. There is no evidence before the Tribunal that he made any enquiry of the patients, their Carers or the prescriber in relation to previous supply of Oxycontin when the prescriptions were first presented at his pharmacy. In the Tribunal's view Mr Ngo did not do enough to alleviate what should have been obvious concerns about dispensing the high dose of 80 mg. the very first time a script was presented at his pharmacy.
7. The Tribunal finds that particular 1 is made out. Particular 2: Between 21 June 2013 and 23 September 2013 Mr Ngo failed to cease dispensing Oxycontin, a Schedule 8 drug to patients as set out in Schedule B of the complaint where the prescriptions appeared to be forged and/or fraudulent in circumstances where: 1. Mr Ngo was presented with multiple prescriptions from patients for Oxycontin 80 mg twice daily in circumstances where the patients had no history of use of the medication at a lower strength; 2. There was a lack of variation in the commencing dosages of Oxycontin in that all the patients were prescribed 80 mg; 3. The strength of dose of prescriptions for 80 mg Oxycontin, was usually for the end stages of cancer patients who had no other medical conditions for which they were being treated. 4. The prescribing medical practitioner was not prescribing any other medication and/or treating any other conditions which would reasonably be expected in a cohort of patients of this number and type.
8. The Tribunal accepts that on their face it was not apparent that the prescriptions were either forged or fraudulent. However, and as raised by sub particular 2a), the growing size of the patient group and the uniformity of the drug prescribed being all at same dosage level without any material as to past prescribing history should have evoked suspicion in Mr Ngo as to the providence of the prescriptions. In our view the judgment possessed by a practitioner of the same standard and training as Mr Ngo would have given rise to caution in dispensing prescriptions with these features.
9. In relation to sub particular 2b) an examination of the drug register for pages 83 through to 88 covers the period from May 2013 to mid-September 2013 and shows multiple entries in each month over this period for the same prescriber. Mr Ngo's evidence was to the effect that he did not accept that it was possible to discern a pattern of dispensing in relation to the prescriber from about the middle of page 84 which translates to about the end of June 2013. He explained the regularity of the prescriptions on the basis that the prescriber was a pain specialist. He did not agree with a suggestion as put to him in cross examination that the combination of regularly prescribing Oxycontin 80 mg only and not lesser strengths was a way of discerning a pattern about the prescriber again on the basis that he believed the prescriber to be a pain specialist.
10. Notwithstanding the scenario given to Mr Ngo that the patients were refugees who had endured the Christmas Island boat tragedy, multiple prescriptions for a Schedule 8 drug at the same strength, being the maximum available strength, should have led him to be more cautious about the providence of the prescriptions. Mr Ngo should have stopped dispensing earlier. After some thought and reflection Mr O'Donnell ventured that a pattern should have been detected by August 2013. His evidence indicates that Mr Ngo should have become suspicious, reported the matter to PSU and stopped dispensing. Although Mr O'Donnell initially specified an earlier point in time in his second written report, in his oral evidence he subsequently shifted that point in time and that shift was beneficial to Mr Ngo. In the Tribunal's view the fact Mr O'Donnell was prepared to concede that pinpointing a time when it was appropriate to notify was not an exact science demonstrates candour and balance in his approach. It does not diminish the weight we attach to his opinion.
11. The Tribunal's view is that it should have been clear to Mr Ngo that a pattern was emerging which called the prescriptions into question given the lack of variation in the dosage of 80 mg. Yet under cross examination Mr Ngo was unable to concede at least the possibility that the combination of regularly prescribing Oxycontin 80 mg only and not lesser strengths across the entire cohort group was a way of discerning a pattern. In our view Mr Ngo's response highlighted his lack of skill and judgment and demonstrates that he was either unable or unwilling to question the providence of the prescriptions by being alert to and discerning a pattern.
12. In relation to sub particular 2c) Mr O'Donnell's oral evidence was to the effect that Oxycontin is prescribed at end stage cancer and it is also prescribed for severe chronic pain. The evidence does not disclose that Mr Ngo knew the medical conditions of the patients being treated. As the Tribunal understood the Applicant's position, and in the light of Mr O'Donnell's evidence, it did not seek to press this sub particular as it was framed.
13. In relation to sub particular 2d) with the exception of one patient the prescribing medical practitioner was not prescribing any other medication and/or treating any other conditions which might reasonably be expected in a cohort of patients of this number and type. The Tribunal accepts the evidence of Mr O'Donnell that patients taking prescribed analgesics at the dosages described would be expected to be taking other medications either for pain or other medical conditions. The Tribunal finds that this feature for an entire cohort of patients bar one should have engendered a suspicion in Mr Ngo about the legitimacy of the scripts.
14. In the Tribunal's view the features of the prescriptions as specified in sub particulars 2a), 2b) and 2d) should have evoked suspicion in Mr Ngo that the prescriptions appeared to be forged and or fraudulent and caused him to cease dispensing earlier than he did on 24 September 2013. We find that particular 2 is made out. Particular 3: Between 21 June 2013 and 23 September 2013 Mr Ngo inappropriately continued to dispense Oxycontin to patients as listed in Schedule C to the Complaint in circumstances where the medication was dispensed on subsequent prescriptions: 1. in increasing quantities: 2. on private prescriptions; 3. without any authority for prescribing Oxycontin in increasing quantities.
15. Schedule C which was attached to the Complaint identifies 38 scripts across 5 patients being patients H, AE, U, BG and K. The evidence indicates that some of these patients were prescribed and dispensed with increasingly high quantities of Oxycontin. For example the quantity of Oxycontin dispensed for patient H increased from 28 to 56 to 84 tablets, while for patients AE, U and BG the quantity increased from 28 to 56 tablets.
16. Mr Mahoney's evidence is to the effect that the issue of increasing quantities (not as a PBS item) should have raised alarms with Mr Ngo. Oxycontin is normally prescribed as a twice daily dosage and any increase in frequency of dosage raises the possibility of toxicity and the need for consultation with the prescriber. Although Mr Ngo did contact the prescriber on a number of occasions and accepted his reassurances, even Mr Mahoney believed perhaps Mr Ngo should have sought professional advice at this stage. In his oral evidence Mr Mahoney clarified that the persistent provision of non-PBS quantities, that is; a quantity of more than the standard pack of 28 tablets, ought to have raised questions for Mr Ngo. He believed it would have been prudent to contact the prescriber but also to speak to a pharmacy colleague to seek their opinion or thoughts. Another avenue would be for a pharmacist to contact the Pharmaceutical Society of Australia or the Pharmacy Guild of Australia.
17. Similarly Mr O'Donnell raised concerns about private prescriptions being presented to avoid PBS prescription checking process. In addition in his view Mr Ngo could have contacted PSU at an earlier point in time to convey his concerns and check whether the prescriber had approval to prescribe drugs of addiction on a long term basis.
18. In addition Mr Ngo had specific concerns about three of the patients the subject of this particular, AE, U and K. In relation to Patient K an intervention note made on 1 July 2013 recorded Mr Ngo's concerns that the dose may not have been ideal for the patient. In respect of patient U three separate intervention notes were recorded on 10 July 2013, 25 July and 7 August 2013. These notes record Mr Ngo's concerns that the patient was not taking medication correctly or taking it irregularly. Specifically patient U was presenting before a previous supply was due to be exhausted. Moreover he had sufficient concerns about AE to confirm with the prescriber that he was not opiate dependent. The evidence indicates that although Mr Ngo had concerns he did not act on them beyond recording an intervention or contacting the prescriber. He did not for example seek further professional or external advice beyond the prescriber.
19. In the Tribunal's view notwithstanding the reported history of the patients being refugees, in the light of Mr Ngo's own concerns about several of the patients, the preponderance of private scripts together with the nature of Schedule 8 drugs, the dosage level of 80 mg and the increasing quantities dispensed should have evoked a greater level of caution in Mr Ngo to make further inquiries beyond the prescriber and to cease dispensing earlier. It was inappropriate for Mr Ngo to continue dispensing in these circumstances. The Tribunal finds that particular 3 given the indicia of sub particulars a) and b) is made out.
20. In relation to sub particular 3c) the Applicant's written submissions state that the evidence is silent as to the existence of any authority issued by the PSU in relation to potentially drug dependent patients. It is not clear to the Tribunal what the precise nature of this claim is meant to be and the evidence to support it. Given this the Tribunal is not satisfied that sub particular 3c) is made out. Particular 4: Between 9 May and 26 June 2013 Mr Ngo failed to appropriately verify the prescription of Oxycontin for Patients A, H, K, U, AE Al and AR with the prescriber prior to dispensing it, contrary to Clause 87 of Poisons and Therapeutic Goods Regulation 2008 (PTGR) in that contact with the purported prescriber was not made or was made using the telephone of the patient's agent or carer.
21. Mr Ngo gave evidence that the first time a script was presented on behalf of a new patient he contacted the prescriber to verify the script. Although Mr Ngo may not have asked a range of prudent questions such as whether the patient had been given a previous dosage or history for a particular patient, the Tribunal cannot be comfortably satisfied that in relation to the patient's particularised that Mr Ngo did not undertake appropriate verification in compliance with the Regulation. The fact that Mr Ngo used the Carer's phone on occasions to undertake the verification was not impermissible. The Tribunal finds that particular 4 is not made out. Particular 5: Between 21 June 2013 and 23 September 2013, when receiving computer generated prescriptions for Oxycontin 80 mg for patients as listed in Schedule B to the Complaint which did not comply with the Criteria for Issuing Non-Handwritten (Computer Generated) Prescriptions ("the criteria") issued by the New South Wales Ministry of Health, Mr Ngo failed to contact the prescriber in accordance with the Dispensing Practice Guidelines - Pharmaceutical Society of Australia to request prescriptions which complied with the criteria
22. Mr Ngo does not claim nor does the evidence suggest that he contacted the prescriber at any stage to request the prescriber provide prescriptions which complied with the criteria.
23. Mr O'Donnell was critical of Mr Ngo in not insisting that the computer generated scripts he was given complied with the Criteria for issuing Non-Handwritten (Computer Generated) Prescriptions TG184. Specifically a prescriber must rewrite on the prescription in their own hand writing all the mandatory particulars. Although he noted that prescribers often make this omission, he believed Mr Ngo should have asked the prescriber for a correctly written prescription to be supplied to him. In his view the standard expected of a practitioner of an equivalent level of training or experience would be to contact the prescriber and ask for a complying prescription. This could have been done when the prescription was being verified. He believed that this departure from the standard was below what is to be reasonably expected of a practitioner of an equivalent level of training or experience. The Tribunal accepts the evidence of Mr O'Donnell. It is also consistent with the experience of the professional members of the Tribunal as to what is to be reasonably expected of a practitioner of an equivalent level of training or experience. The Tribunal finds that particular 5 is made out on the evidence. Particular 6: From approximately August 2013 Mr Ngo continued to dispense Oxycontin to patients as listed in schedule B to the Complaint in circumstances where he failed to contact the Pharmaceutical Services Unit of the New South Wales Ministry of Health to convey his concerns about the prescribing patterns and to check whether the prescriber had approval to prescribe Oxycontin on a long term basis.
24. The totality of the matters set out by Mr O'Donnell in his reports and oral evidence is to the effect that a practitioner possessing appropriate judgment and exercising appropriate skill should have contacted PSU by about August 2013 rather than as Mr Ngo did in late September 2013.
25. Mr Mahoney's evidence suggested that the persistent provision of non-PBS quantities that is; a quantity greater than 28 tablets ought to have raised questions for Mr Ngo. He believed it would have been prudent to contact the prescriber but also to speak to a pharmacy colleague to seek their opinion or thoughts. He conceded another avenue would be for a pharmacist to contact the Pharmaceutical Society of Australia and the Pharmacy Guild. Furthermore his evidence was to the effect that although Mr Ngo had contacted the prescriber and accepted his reassurances, perhaps he still should have sought external professional advice.
26. In The Tribunal's view a pharmacist has a role as a caretaker of prescription medications in the community and should possess the judgment and skill to question where prescribing patterns raise suspicions and to seek further advice or counsel. If there was no role for the pharmacist in this regard, then doctors would be dispensers as well as prescribers. They are not.
27. The evidence indicates that there were instances where Mr Ngo had concerns about patients taking increased quantities of Oxycontin and he contacted the prescriber. However in our view in the light of the totality of these concerns and the nature and extent of the prescribing pattern he should not have simply accepted the assurances of the prescriber. For example on 26 June 2013 Mr Ngo contacted the prescriber about patient BA and AE and whether they were drug dependant. He gave evidence that he contacted the prescriber on 1 July 2013 about patient AR because he was concerned that the supply interval was too close to the previous script. Mr Ngo simply accepted what the prescriber told him which was that he was aware of the additional dose but that the patient required an extra tablet with his evening dose on days when he experienced extreme pain. Mr Ngo did not ask any questions of the prescriber as to whether a lesser strength of Oxycontin could be used. In respect of patient P, where again on 1 August 2013 the interval between presented prescriptions was too short, Mr Ngo merely recorded in the dispensing screenshot that the supply interval was too close and the patient was to pick up the tablets in a week. These matters and the nature and extent of the numerous prescriptions should have led him to convey his concerns to PSU before 24 September 2013.
28. Mr Ngo was unable in his oral evidence to articulate specifically what it was about the prescribing pattern that led him to raise his concerns with PSU at the particular point in time that he did. When pressed about this matter Mr Ngo merely replied it was the pattern. Yet the Tribunal are left to wonder what it was about the pattern as Mr Ngo discerned it on 24 September 2013 that he had not been able to discern earlier in July or August. In the Tribunal's view Mr Ngo's inability to clearly explain what it was about the prescribing pattern which crystallised in his mind as sufficiently troubling to warrant a report to PSU demonstrates that his judgment and the care exercised by him in the practice of pharmacy was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
29. This is reinforced by Mr Ngo's concession that in hindsight he should have been troubled earlier and looking back he accepted that a responsible practitioner would have recognised concerns earlier.
30. The Tribunal finds that particular 6 is made out on the evidence.

Conclusions

1. We accept that Mr Ngo's own background as a refugee may have led him to be sympathetic to the plight of this purported patient group. The Tribunal also accepts that the story Mr Ngo was given was an unusual one. However, it is one thing to be duped by a story, but it is entirely another matter not to use one's judgment and skill to identify a concerning prescribing pattern of a Schedule 8 drug. Mr Ngo ought to have used his judgment and skill to identify the pattern earlier. He ought to have used his judgment and exercised care in deciding to take a course of action beyond just accepting what the prescriber told him. He ought to have raised his concerns with someone other than the prescriber. He had avenues available to him to do this for example by raising it with a colleague or seeking advice from a professional body. Although he did eventually report his concerns to PSU he ought to have ceased dispensing and contacted PSU earlier.
2. In the Tribunal's view this failure to recognise a concerning prescribing pattern, stop dispensing and to contact PSU at an earlier point in time demonstrates that Mr Ngo's knowledge, judgment, skill and care was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In the light of the findings about the specific particulars above and the conclusions the Tribunal has reached it is satisfied that Complaint 1 in the application of unsatisfactory professional conduct is proved.
3. However the Tribunal is not satisfied that the particulars as established are of a sufficiently serious nature to constitute professional misconduct by Mr Ngo.
4. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s.139E of the National Law should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50]
5. Dishonesty on the part of the practitioner is not a requirement. Recklessness can be a sufficiently serious consideration to justify invoking sanctions to protect the public: Lee v HCCC [2012] NSWCA 80 at [67].
6. In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 the Court of Appeal (referring to the earlier statutory test) described professional misconduct as including
7. "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner: cf Allinson [v General Council of Medical Education and Registration [1894] 1 QB 755] (at 760-761)." (per Kirby P at 200).
8. It is not the case that Mr Ngo had actual knowledge that the prescriptions were forged and dispensed them anyway. Nor is the case that he made no effort to check the legitimacy of the scripts with the person whom he believed to be the prescriber. Although he became concerned about the prescribing pattern and reported the matter to PSU later than he should have, he did report it. Indeed it was his report that prompted the PSU to look at his practice in some detail. In our view there is a distinction between a lack of knowledge, judgment, skill and care leading to a belated recognition of a suspect prescribing pattern, and professional misconduct of a sufficiently serious nature to justify suspension or cancellation of a practitioner's registration.

Principles regarding protective orders

1. The relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of part 8 of the National Law in relation to proven claims against registered health practitioners: see ss149A, 149B and 149C. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see 3A of the National Law. Since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection: see Lee v HCCC at 34.
2. Since being registered as a pharmacist Mr Ngo has not been the subject of any disciplinary complaints nor have any adverse findings previously been made against him in relation to his practice as a pharmacist. Since 19 December 2013 conditions have been imposed on Mr Ngo's registration pursuant to section 150(1)(b) the National Law as it relates to Schedule 8 drugs. These conditions have been complied with.
3. In effect the Applicant sought Orders which would amount to an extension of these existing conditions. It sought Orders that Mr Ngo not supply, dispense, administer or manufacture any substance detailed in Schedule 8 of the NSW Poisons List (drug of addiction, derivative or compound medication) or Schedule 4D (prescribed restricted substance, derivative or compound medication) or any substance detailed in an equivalent list of any other Australian State or Territory. The Applicant also sought that Mr Ngo attend mentoring sessions for a period of 12 to 18 months.
4. The Tribunal accepts that Mr Ngo has been chastened by this experience. We accept his expression of regret and that he has felt stupid at being taken in by a scam. In the circumstances of this case Mr Ngo's lack of knowledge, judgment, skill and care was confined to a discrete and particular event over a period of some three months. In our view Mr Ngo is unlikely to conduct himself in the same manner in the future if faced with a similar set of circumstances. The Tribunal is not satisfied that the evidence shows that Mr Ngo's practice is so deficient that it warrants the imposition of orders restricting his ability to supply, dispense, administer or manufacture any substance detailed in Schedule 8 of the NSW Poisons List (drug of addiction, derivative or compound medication) or Schedule 4D (prescribed restricted substance, derivative or compound medication) for any further period. Nor is the Tribunal of the view that the lack of knowledge, judgment, skill and care demonstrated in this case confined in the way that it was establishes that mentoring is warranted. Whilst we believe it is unlikely that Mr Ngo's conduct will be called into question in a similar way in the future, in our view Mr Ngo would benefit from additional professional training as it relates to ethics in pharmacy practice. This would ensure that his future behaviour is informed in such a way which reflects the paramount consideration of the protection of the public.

Costs

1. The Applicant seeks an Order that the Respondent pay its costs. Although Complaint 1 has been proved and Complaint 2 has not been proved, the Applicant is still entitled to an award for costs in its favour. The hearing was not extended in relation to proof of particular matters to prove Complaint 2 alone. Accordingly there will be an order for costs in favour of the Applicant.

Orders

1. That the Respondent Practitioner be reprimanded
2. Pursuant to s.149 of the Health Practitioner Regulation National Law (NSW) the Respondent shall within 12 months of the date of this decision undertake the "Ethics and Dispensing in Pharmacy Practice" course offered by the Pharmaceutical Society of Australia and provide evidence in writing to the Pharmacy Council of NSW of his successful completion of the course.
3. If the course specified in Order 2 is unavailable then the Respondent is to complete an equivalent course as approved by the Pharmacy Council of NSW.
4. All costs associated with undertaking this course to be met by the Respondent.
5. The Respondent is to pay the Applicant's costs.
6. An order pursuant to s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the names of the patients appearing in the amended Schedule to the Complaint of Patients A to BP I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 15 December 2015