Health Care Complaints Commission v Orr

Solicitors: Health Care Complaints Commission, F Shah (Applicant) No Appearance (Respondent) File Number(s): 1520095 Publication restriction: A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the names of the Patients A-F in the amended schedule to the complaint, and any other patient named in the course of proceedings.

Background

1. Nicholas Orr is a registered pharmacist now aged 41.
2. From March 2013 to mid-August 2013, the practitioner worked as a Pharmacist at a pharmacy in Charlestown. The practitioner left his employment with no prior notice.
3. On 23 August 2013, the practitioner's employer, Mr Gerges, contacted the Pharmacy Council of New South Wales ("the Council") via email and advised that pursuant to a periodical inventory check of the Sch 8 Drug Register at his pharmacy he noted numerous discrepancies in the balance of OxyContin of various strengths. Upon further investigation, including review of invoices and the Drug Resister concerning Sch 8 drugs received and supplied, and CCTV video footage, Mr Gerges was of the view that the anomalies were a result of the practitioner's actions.
4. On 23 August 2013, the Council requested further evidence and asked that Mr Gerges contact Pharmaceutical Services immediately. On 27 August 2013 the Council received further evidence, including relevant invoices and photocopies of the Drug Register.
5. On 3 September 2013, the Council received correspondence from Mr Orr's previous solicitors, advising that the practitioner was an inpatient at a private hospital, enclosing a letter from his treating psychiatrist confirming that he was not in a position to respond to the matters for at least two weeks.
6. On 11 September 2013, the Council resolved to impose the following conditions on the respondent's registration as a pharmacist: 1. The practitioner is not to practice as a pharmacist. 2. The practitioner is not to enter the premises of a pharmacy at which he is employed. 3. The practitioner is to notify the Council of his discharge from hospital within 1 working day of discharge. 4. The practitioner is to provide a copy of his discharge summary to the Council within 7 days of his discharge. The complaint was also referred to the HCCC for investigation..
7. On 12 September 2013 the Council wrote to the practitioner notifying him of the conditions imposed on his registration.
8. On 24 September 2013 the practitioner was discharged from hospital.
9. On 6 November 2013 the practitioner's new solicitor wrote to the Council acknowledging the correspondence, advising of the change in legal representation and stating that Mr Orr was presently unemployed and would not seek to work as a pharmacist while the conditions were imposed.
10. On 28 November 2013 Mr Orr was admitted to hospital for removal of a benign brain tumour that had been diagnosed some years previously.
11. In June 2014 Mr Orr was admitted to hospital for mental health reasons.
12. In 2014 and 2015 Mr Orr undertook further studies in order to qualify as a teacher.

The Complaint and Particulars

1. The Tribunal has before it three complaints against the Respondent: Complaint 1 That the Respondent is guilty of unsatisfactory professional conduct under s139B of the National Law in that he has: (i) 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; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. Complaint 2 Is guilty of professional misconduct under s139E of the National Law in that he has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (ii) 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 a practitioner's registration. Complaint 3 The Respondent suffers from an impairment within the meaning of s 5 of the National Law.
2. Particular 1 is that the practitioner dishonestly misappropriated the following drugs from the Pharmacy he worked at between March and August 2013: 1. OxyContin 5 mg - 34 tablets 2. OxyContin 20 mg - 20 tablets 3. OxyContin 40 mg - 206 tablets 4. OxyContin 80 mg - 476 tablets 5. OxyNorm 10 mg - 60 capsules 6. Endone 5 mg - 145 tablets 7. Targin 10 mg - 34 tablets
3. All of the other particulars flow from this central allegation. Particular 2 is that the practitioner self-administered the drugs without a prescription and contrary to s 12 of the Drug Misuse and Trafficking Act 1985 (NSW). Particular 3 is that he made false entries concerning OxyContin 40 mg in the Sch 8 Drug Register in breach of cl 112 and cl 118(1) of the Poisons and Therapeutic Goods Regulation 2008 (NSW) in that he did not record delivery of the drug on several occasions, he falsely recorded supply of the drug under a script, he failed to record prescriptions on two occasions that were actually dispensed, and on 1 August 2013 when requested to do a stock count he recorded stock on hand incorrectly. With the exception of the failure to record a prescription, and with occurrences of different dates, these are the same essential features of Particular 4 concerning OxyContin 80 mg, Particular 5 concerning OxyContin 5 mg, Particular 6 concerning OxyContin 20 mg and Particular 7 concerning Endone 5 mg.

The Practitioner's Non-Engagement in these Proceedings

1. Although legally represented, the practitioner has not responded to any of the allegations made in this matter, nor has he complied with a number of requests from the HCCC for crucial information such as that concerning his health status and treatment, his treating practitioner/s, or work history.
2. In response to a request from the HCCC on 18 February 2014 concerning Mr Orr's intentions regarding his registration as a pharmacist, his current health status and prognosis and a repeated request for him to address the allegations in the complaint, Mr Orr's solicitors responded on 10 March 2014 as follows: 1. Mr Orr in due course wishes to again become a registered Pharmacist. 2. Mr Orr is presently recovering from surgery to remove a brain tumour…His prognosis is good. Mr Orr is also recovering from a diagnosis of anxiety and depression and his prognosis is good. 3. Mr Orr has been advised not to make any comment pending anticipated proceedings against him by NSW Police at which time he will provide us with instructions regarding any charges that may be preferred against him. (Bundle Two, Tab 32).
3. On 1 April 2014 the HCCC wrote to Mr Orr to advise that the additional allegation of impairment had been added to the original complaint and to ask him to address this issue. The letter also specifically requested information about his history of dependence on drugs of addiction including OxyContin, opiates and benzodiazepines while registered as a pharmacist, history of mental health diagnoses while registered and a detailed chronology of work experience.
4. On 15 May 2014 the HCCC wrote to invite Mr Orr to participate in an assessment with an expert engaged by the HCCC in order to assess whether he suffered from an impairment as defined by the National Law.
5. Mr Orr's solicitor responded to both of the above requests in a letter of 23 May 2014 which indicated that Mr Orr refused to meet with the Commission's expert and that no comment would be made concerning the complaint.
6. On 22 August 2014 the Commission sent a detailed complaint including a summary of the evidence that they relied upon to Mr Orr with an invitation to make submissions in response within the statutory time frame of 28 days. No response was received.
7. On 9 October 2014 the HCCC wrote to Mr Orr requesting details of his current treatment and support in relation to both mental health issues and drug dependence. No response was received.

The Evidence

1. As a consequence of the practitioner's failure to engage in the process, the hearing proceeded entirely on the basis of the uncontested evidence of the HCCC provided in Bundle One and Two and supplementary material tendered at hearing, accompanied by detailed written submissions and chronology helpfully compiled by Counsel.
2. This evidence includes a witness statement from Michael Gerges of 29 July 2014 (Bundle One, Tab 8) with a series of annexures and exhibits: comprising copies of the Drug Register; dispensing records; wholesale invoices; summary tables concerning what should have been recorded in the Drug Register concerning the relevant drugs; still images drawn from CCTV footage of the pharmacy from relevant dates; two CD Roms containing the CCTV footage; an image of empty OxyContin foil packaging referred to in the statement; and example images of the medication boxes said to be visible in the CCTV footage and stills (Bundle One, Tab 9-20).
3. The evidence also includes: a set of tables summarising the invoices, dispensings and Drug Register entries for each of the relevant drugs listed in the complaint compiled for the HCCC, accompanied by statements from the two pharmacy students responsible for compiling them; expert evidence obtained by the HCCC from Dr Anthony Samuels; Mr Orr's clinical records comprising medical records from two drug detoxification related hospital admissions in 2011 and 2013; Mr Orr's GP records from 2012-2013; an opinion from the neurosurgeon who undertook surgery on Mr Orr in 2013 and Mr Orr's PBS records from 2011-2013.
4. Further more recent material produced as a result of summons issued to the GP practice (Exhibit 7) and psychiatrist (Exhibit 8) were received at the hearing.

Mr Michael Gerges

1. Mr Gerges was the owner of the pharmacy and Mr Orr's employer at the time of the matters complained of. Mr Orr worked at the pharmacy five days per week from March 2013 to August 2013.
2. Mr Gerges' statement of 29 July 2014 outlines the process that he undertook in comparing the records of medications received, dispensed and recorded in the Drug Register to determine the errors and imbalances that are the subject of Complaint One.
3. Mr Gerges confirms that the man visible in the CCTV footage and stills is Nicholas Orr and confirms that the recorded dates and times of the relevant footage, covering the period 6 July 2013 to 1 August 2013, are correct.
4. Mr Gerges states that: There is CCTV footage which shows Mr Orr removing boxes of s8 drugs from the safe and taking them into [a] location in the dispensary that it unseen and not recorded by the CCTV cameras. This section is the last bay of the dispensary. It is a small preparation bay at the back of the dispensary where we prepare Webster packs. There is a sink where compounded medications are prepared. There would be no reason for Mr Orr to go there with the s8 medications. It would be not necessary [sic] to go there if a pharmacist was dispensing medications at the counter. I found some stray OxyContin tablets in a plastic tub in the last bay of the dispensary. I could find no reason or explanation as to why they were there… I also found some empty packets of OxyContin 40 mg in the rum bin. The rum bin is a bin where old medications are discarded when the medications are out of date and customers bring in old or unused medications (Bundle One, Tab 8, paras 19-21).
5. The shortfall of OxyContin 5 mg (particular 1(a)) was 34 tablets based on the dispensary report, invoices and stock on hand count, for the period 28 May 2013 and 20 August 2013.
6. There were 20 tablets of OxyContin 20mg (particular 1(b)) missing based on the dispensary report, invoices and stock on hand count, for the period 30 May 2013 to 9 August 2013.
7. On review of the Drug Register for OxyContin 20mg, Mr Gerges found an entry under Mr Orr's initials on 20 June 2013 of 20 tablets being dispensed, although the prescription was for 28 tablets. In addition he found an entry of 31 July 2013 in which Mr Orr had recorded delivery of 28 tablets, when the invoice indicated that 56 tablets had in fact been supplied.

Medical Records Concerning Mr Orr's Mental Health and Substance Abuse

1. Mr Orr's medical records comprised records of three major hospital admissions: in December 2011 for drug detoxification ("the 2011 admissions"); in August 2013 for drug detoxification ("the 2013 admission") and in June 2014 for depression and anxiety ("the 2014 admissions"). There were also copies of Mr Orr's GP records covering the period 3 January 2012 to 7 September 2015 (with a notable gap from 6 January 2012 to 14 August 2013), a brief set of notes from a psychiatrist who saw him on four occasions from 29 October 2013 to 17 March 2014, and records and an opinion letter from Dr Christie addressing Mr Orr's brain tumour.
2. For the sake of clarity this evidence is addressed chronologically, with relevant statements from the hospital and GP records interwoven, although some of the statements clearly relate to earlier conduct.
3. Taken together, this evidence based upon Mr Orr's statements to various health professionals from 2011 to 2014, clearly indicate that: (i) he had a long-standing addiction to prescription medications, and (ii) he supplied this addiction through his professional role as a pharmacist via the misappropriation of drugs from his places of employment.

The 2011 Admissions

1. From 13 December to 15 December and then again from 15 December to 16 December 2011 Mr Orr was admitted to a public hospital in the Newcastle area for nausea and vomiting. He did not disclose that he was in the midst of a drug detoxification.
2. From 19 December to 29 December 2011, Mr Orr was admitted to a public hospital in Newcastle. Primary diagnosis on admission was "substance abuse and substance induced mood disorder".
3. Admission notes of 19 December 2011 record an "on going substance abuse problem" and Mr Orr losing his job due to "making mistakes" (Bundle Two, Tab 44, p 13, 17). The Initial Management Plan at the end of these notes concludes at point (v) "Pt has pharmaceutical licence. Team needs to Decide about informing the Authority" (p 18).
4. A substance use assessment also completed on 19 December 2011 notes, "Accessing pethidine/methadone via pharmacy supplies" (Bundle Two, Tab 44, p 19).
5. Nursing notes also dated 19 December 2011 which follow this assessment state: AHPRA website accessed regarding our obligations to notify of his admission. It does not appear that it is mandatory given what we know of Nicholas' behaviour. Spoke to WM Team to discuss tomorrow. (Bundle One, Tab 44, p 24)
6. Later in the file, marked with Mr Orr's patient number is an undated print out stated to be from the AHPRA website. This states that, "Practitioners, employers and education providers are all mandated by law to report notifiable conduct relating to a registered practitioner or student" (emphasis in original). This reflects the requirement of s 141 of the National Law. The document continues, "Notifiable conduct is defined as": In relation to a registered health practitioner, means that the practitioner has: • practised the practitioner's profession while intoxicated by alcohol or drugs; or • engaged in sexual misconduct in connection with the practice of the practitioner's profession; or • placed the public at risk of substantial harm in the practitioner's practice of the profession because the practitioner has an impairment; or • placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards (Bundle Two, Tab 44, p 87).
7. As will be discussed below, this definition reflects the content of s 140 of the National Law. The print out of the webpage has a hand drawn arrow from the requirement to report notifiable conduct to the definition. The first word of the first dot point of the definition is circled and linked to a handwritten annotation on the page (in what appears to be the same handwriting as the nursing record of 19 December 2011). The annotation reads, "Wife states Nicholas may have practiced whilst intoxicated but she is not sure".

The 2013 Admission

1. From 19 August 2013 to 20 September 2013, Mr Orr was admitted to a private hospital in Newcastle for drug detoxification.
2. A pre-admission referral note dated 14 August 2013 records his present complaint as "Major depression - Polysubstance abuse". The comments field records: Patient states he has felt depressed all of his life. Started using amphetamines while he was at university studying pharmacy. When he became a pharmacist he changed to opioids when he got access to them. States he has been using for about 4 years now. Also drinks about 2 standard drinks a day. Will possible loose [sic] his Registration. Legal action against him (Bundle Two, Tab 43, p 12).
3. The GP referral letter dated 15 August 2013 states: He has problem with opiate dependency Currently using OxyContin 2 tablets of 80 mg a day Smoking cigarettes 15/D Keen to have a rehab at [clinic] in Sydney, He was in that clinic 20 years ago and back then they were helpful He has had an on and off problem with opioids for years He also taking Valium and Xanax to calm him down. (Bundle Two, Tab 43, p 13)
4. Admission notes dated 19 August 2013 record that the purpose of the admission is "detoxification from Opiates" and record Mr Orr as using 800 to 1,000mg of Oxycodone daily "at times. Last use at this rate 2-3 weeks ago", as well as Valium 10mg a day and Xanax 4mg a day. It was noted that he usually drank five standard drinks per day, maybe more. He had long-term depression and was taking Luvox. He had attempted six detoxifications previously. There had been a previous detoxification admission to a Sydney private hospital when he was aged 18 or 19 (Bundle Two, Tab 43, p 50-51).
5. Nursing notes later on 19 August 2013 record, "he states he has self detoxed several times, but working in a pharmacy he has always reused" (Bundle Two, Tab 43, p 52).
6. A psychiatrist's notes dated 20 August 2013 record that Mr Orr has "No GP" and that his use of Luvox and Zoloft is "self monitored" (Bundle Two, Tab 43, p 55). That note also includes specific reference to the Charlestown pharmacy which is the subject of this complaint as follows: "That's when things got really bad" Endone Oxycontin Last shift found out he was replaced. "I knew that they knew" Decided to detox.
7. This note also records that Mr Orr conceded that he had used heroin in his 20s and amphetamines in his late teens and 20s. He acknowledged using benzodiazepines "scattered throughout and recently" and had shot ketamine into his arm.

The Brain Tumour

1. From 28 November 2013 to 30 November 2013, Mr Orr was admitted to hospital to undergo a craniotomy to remove a right frontal meningioma first diagnosed in 2010. The progress notes of 28 November record that Mr Orr had ceased Naltrexone 14 days previously and that "D&A" would follow up about recommencement with Naltrexone.
2. Mr Orr made a good recovery. The neurosurgeon gave the opinion in a letter to the HCCC that the tumour was "high unlikely" to have had any impact upon him in terms of cognitive function or behavioural issues (Bundle Two, Tab 48).
3. The Tribunal is satisfied that the brain tumour was not a cause of the impairment or misconduct complained of.

The 2014 Admissions

1. From 19 June 2014 to 18 July 2014, Mr Orr was admitted to two private hospitals in the Newcastle area, consecutively, for a period of two weeks each. He transferred from the first to the second hospital in order to be closer to home.
2. A referral letter from the GP to the first hospital on 18 June 2014 says "He is suffering from depression and anxiety…No alcohol or drugs" (Exhibit 9).
3. The first hospital admission notes record "treatment of depression symptoms and overwhelming anxiety in the context of multiple psychological stressors including recent criticism in work placement, recent history of excision of meningioma and de-registration as a pharmacist (secondary to poly-substance dependence)".
4. The second hospital admission notes "major depression and anxiety in the context of major losses secondary to past substance abuse and narcissistic personality traits exacerbated by meningioma few months before" (Exhibit 9).

Dr Anthony Samuels, Psychiatrist

1. Dr Anthony Samuels provided an expert report for the HCCC, dated 29 July 2014, based upon the materials in the two bundles of evidence.
2. Dr Samuels concluded that in his view Mr Orr has an impairment as defined by the National law. He based such conclusion on the fact that the practitioner had a long history of poly-substance abuse dating back to his early adult years involving opiates, amphetamines and alcohol.
3. Dr Samuels concluded that there is a risk of relapse as the practitioner's addictions are longstanding.
4. Dr Samuels concluded that the practitioner's issues had been: [P]resent since the age of 18 suggests considerable lack of insight and judgement. In addition, pursuing his academic studies, his pre-registration requirements and ultimately working as a pharmacist without attempting to deal with these issues is, in my opinion, unacceptable professional behaviour. Had he not been discovered misappropriating drugs from his workplace this behaviour very likely would have continued, placing patients and colleagues as well as himself at risk. His failing to bring these problems to the attention of the New South Wales Pharmacy Council, Pharmacy Board of Australia and AHPRA despite being ethically and morally required to do so raises concerns in regard to his character (Bundle One, Tab 22).
5. Dr Samuels further concluded in his report that, "There is a criminal element to his behaviour which raises further concerns in regard to his character and capacity for ethical behaviour".
6. Dr Samuels notes that para 6.3 of the Code of Conduct for pharmacists requires among other things, that practitioners comply with statutory reporting requirements and if they are aware of a health condition which could adversely affect their performance comply with para 9 which relates to practitioner health. Para 9 sets out detailed steps for care, supervision, follow up and reporting. Dr Samuels notes that Mr Orr "breaches almost all of these".

Relevant Law

1. The standard of proof is the civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. By reason of the seriousness of the allegations and the gravity of the consequences the Tribunal must be comfortably satisfied that the matters in the complaint have been established.
2. The use of "comfortably satisfied" does not imply that proof to a higher standard than the balance of probabilities is required: Gianoutsos v Glykis (2006) 65 NSWLR 539 at 547-9, applied by the Medical Tribunal in In re Sood [2006] NSWMT 1 at 10.
3. At common law there are only two standards of proof, the civil standard of proof upon a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [31]. The Briginshaw standard is not a third standard of proof. Rather, it is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard.
4. The professional members of the Tribunal are entitled to apply their own specialist experience to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct, with appropriate attention to the expert evidence if there is a genuine difference of view: HCCC v Fraser [2014] NSWCATOD 29 at [238].
5. The Tribunal must make findings for each particular (except those conceded in writing: s 165H National Law), and then determine whether those findings amount to proof on the balance of probabilities of the complaint: Lucire v HCCC [2011] NSWCA 182 per Basten JA at [43].
6. 'Unsatisfactory professional conduct' is defined in s 139B of the National Law as including: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

Findings and Reasons

1. The evidence, taken together, is that the practitioner suffered from a very serious and long standing drug addiction, primarily to opiates, although his various medical diagnoses are of "polysubstance" abuse and dependence, which is also the framing of Complaint 3.
2. The practitioner, although not defending the proceedings at hearing, and not contesting the evidence or proposed orders sought by the HCCC through written submissions, did not at any time concede any of the complaint. The Tribunal is therefore obligated to make a finding on every particular and then determine whether the complaints are made out.
3. All of the particulars are made out to the required standard and we find all three complaints proved. We find that the conduct detailed in the particulars constitutes unsatisfactory professional conduct of such severity and repetition that it would justify deregistration and is professional misconduct. The misappropriation of substantial quantities of Sch 8 drugs from his place of employment, which Mr Orr had access to by virtue of his registration as a pharmacist, must be characterised as professional misconduct of the most serious kind, as is his falsification of Sch 8 records to cover up this theft. Complaints One and Two are upheld.
4. The practitioner pursued this misconduct in the service of his drug addiction. We find that this drug dependence was an impairment as defined by s 5 of the National Law. Complaint Three is upheld.
5. The absence of complaint about Mr Orr's professional practice in that period does not mean that members of the public were not placed at risk, or indeed actually harmed, through his failure to adhere to professional standards. The Drug Register indicates that some patients were not provided with the total quantity of medications prescribed. Mr Gerges' evidence of an empty OxyContin packet and "stray" tablets, alongside the sheer volume of drugs that Mr Orr admitted to treating practitioners that he was consuming in 2013, render the conclusion that he was practising while intoxicated inescapable.
6. Having found that Mr Orr was impaired, and that he committed misconduct related to that impairment, the Tribunal must, in the absence of evidence to the contrary, assume that the risk that Mr Orr posed to the public in his professional practice as a pharmacist in 2013 is continuing to the present moment. As the Court of Appeal noted in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 at 6 (although speaking of a practitioner in defended proceedings): No explanation was offered by the doctor which made it unlikely that the conduct would occur again. Moreover there was nothing to suggest that the doctor had become a changed person during the 4 years since the last of the incidents. …In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461: "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man".

Costs

1. The HCCC case is wholly proved and they are entitled to their costs in these proceedings from Mr Orr.
2. In addition the HCCC undertook these proceedings with efficiency, while providing every opportunity to the practitioner to respond to the complaint and be guaranteed of procedural fairness in the conduct of its case. When the HCCC was made aware that the practitioner would not be appearing, it acted responsibly to reduce costs by vacating two of the scheduled hearing days, while still providing an opportunity for Mr Orr to respond in writing to the proposed orders sought.
3. Mr Orr, in contrast, increased costs by not providing details of his treating health practitioners such that summonses were issued in order to obtain up to date information.
4. While the Tribunal has a wide discretion as to costs, this discretion must be exercised judicially, and cannot, for example, take into account the financial hardship of the practitioner: HCCC v Philipiah [2013] NSWCA 342 at [44]-[46].

Orders: 1. Pursuant to s 149C(4) of the National Law, the Tribunal declares that the practitioner's registration as a Pharmacist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency would have been cancelled from the date of this order if he had been currently registered. 2. Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until at least 3 years from the date of this order. 3. The practitioner is prohibited, pursuant to s149C(5A), from providing any "health services" as defined by s 5 of the National law, until such time as a reinstatement order is made. 4. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the names of patients A-F in the amended schedule to the complaint, and any other patient named in the course of proceedings. 5. Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed or assessed.

Endnotes

1. The Medical Practice Amendment Act 2008 (NSW) inserted a new s 71A(1) into the Medical Practice Act 1992 (NSW). See discussion in Nick Goiran, Margaret Kay, Louise Nash and Georgie Haysom, 'Mandatory Reporting of Health Professionals: The case for a Western Australian Style Exemption for all Australian Practitioners' (2014) 22 Journal of Law and Medicine 209 at 212.
2. Goiran et al, ibid. For the contrary position see: Malcom Parker, 'Embracing the New Professionalism: Self-Regulation, Mandatory Reporting and Their Discontent' (2011) 18 Journal of Law and Medicine 456. 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: 30 October 2015