Health Care Complaints Commission v Saab

NCAT Occupational|2021-06-08

Introduction

In a previous decision (the Stage 1 proceedings) we found that Mr Saab's conduct as a pharmacist constituted both unsatisfactory professional conduct and professional misconduct as defined in the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v Saab [2020] NSWCATOD 145.
Between January 2015 and March 2017 Mr Saab's Pharmacy dispensed substantial quantities of prescription opioids and anabolic steroids to multiple patients that were not for a therapeutic purpose. Other conduct by Mr Saab included failing to maintain proper and accurate records for methadone, a Schedule 8 drug, failing to notify the NSW Ministry of Health of losses in methadone and failing to undertake biannual stocktakes for methadone.
The issue in these proceedings is what disciplinary orders we should make.
In a directions hearing conducted in December 2020 the matter was listed for further hearing in early June 2021 for a consideration of the appropriate protective orders to be made to conclude these proceedings. These became the Stage 2 proceedings.
The hearing for the Stage 2 proceedings was conducted on 7 and 8 June 2021. Evidence was received and submissions were made by the Health Care Complaints Commission (the Commission) and Mr Saab.
The Tribunal received documents into evidence including a report from Mr Patrick Mahony, a pharmacist and heard oral evidence from Mr Saab and Mr Mahony. Both Mr Saab and Mr Mahony were cross-examined.
These reasons deal with our consideration of appropriate protective orders to be made in the light of our findings made in the Stage 1 proceedings and the additional evidence before us in the Stage 2 proceedings. We also deal with the issue of costs of the proceedings. These reasons should be read in conjunction with our decision in the Stage 1 proceedings.
The Commission submitted that we should cancel Mr Saab's registration as a pharmacist for five years. Mr Saab considers that he should be permitted to continue practising as a pharmacist subject to conditions. On behalf of Mr Saab reference was also made to a period of suspension during which Mr Saab would complete 500 hours "as a supervised unregistered pharmacist" prior to regaining his registration with conditions.

Background to the Complaint

Mr Saab became a registered Pharmacist on 4 January 2008 and the sole proprietor of Pharma Save in Granville ("the Pharmacy") on 18 July 2014.
The Pharmacy was inspected by the Pharmaceutical Regulatory Unit (PRU) on 3 occasions; 9 March 2017, 19 April 2017 and 24 April 2017. The context for these inspections followed an assessment by the PRU of wholesaler records for the Pharmacy, which indicated that the Pharmacy "purchased amongst the highest quantities of high strength Fentanyl patches and high strength Oxycodone tablets of any pharmacy in NSW".
On 30 March 2017 the Pharmacy Council of New South Wales (the Council) conducted s150 proceedings under the National Law. As a consequence, conditions were imposed on Mr Saab's registration as a Pharmacist, including that he must not practice as a Pharmacist. Mr Saab has not practiced as a Pharmacist since 20 March 2017, a period of over 4 years.
The Complaint brought by the Commission against Mr Saab was lodged with the Tribunal in May 2019 and was subsequently amended during the course of the proceedings. It comprised four individual complaints, with a total of 136 particulars some of which had sub-particulars.
Mr Saab did not admit that he was guilty of professional misconduct. Apart from potentially one particular Mr Saab did not concede any of the particulars or admit to unsatisfactory professional conduct. Other than some particulars which are of little consequence, we found the conduct particularised in each Complaint to have been proven.

Summary of the Stage 1 reasons

The following summary must be read in conjunction with our decision Health Care Complaints Commission v Saab [2020] NSWCATOD 145.
Mr Saab's conduct which was the subject of the Complaint occurred at the Pharmacy from January 2015 to March 2017, being a period of some 2 years and 2 months.
A substantial but not the sole component of the proven Complaint related to 38 patients and the dispensing by Mr Saab and his pharmacy of Schedule 8 drugs of addiction and Schedule 4 Appendix D (Prescribed restricted substances (4D)) and Schedule 4 Appendix B (Special restricted substances (S4B)).
Of these 38 patients, 25 patients were dispensed drugs of addiction under prescriptions from three doctors that were forged. The drugs of addiction included high strength Fentanyl patches and high strength Oxycodone tablets. The dispensing to these 25 patients also included benzodiazepines, such as Diazepam in high quantities and high strength Alprazolam in excessive quantities.
The other 13 patients were dispensed prescribed restricted substances. The restricted substances included hormones and anabolic steroids which are known to be subject to abuse. The Complaint was proved in all but 2 of this cohort of patients.
Through his Pharmacy Mr Saab dispensed substantial quantities of prescription opioids and anabolic steroids that were not for a therapeutic purpose. We characterised the gravity and repetition of Mr Saab's conduct which occurred over a prolonged period from January 2015 to March 2017, as conduct which strikes at the heart of public confidence in the pharmacy profession as caretakers of prescription opioids and restricted substances.
In our view without clinical justification and contrary to the interests of patients Mr Saab's conduct put the welfare of patients at risk and, because arguably the drugs have been made available in the community, to the public in general. There was no exercise of judgement or ethics by Mr Saab to protect patients and the public from the risk of oversupplied or misappropriated opioids and restricted substances.
The proven Complaint also related to Mr Saab's failure to maintain proper and accurate records for Methadone, failing to notify the NSW Ministry of Health of losses of Methadone, failing to undertake biannual stocktakes for Methadone and the removal by him of his name and initials from the Pharmacy's dispensing system.
As both a proprietor pharmacist and dispensing pharmacist Mr Saab's conduct amounted to unsatisfactory professional conduct in that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and it was improper and unethical: (s.139B(1)(a) and s.139B(1) of the National Law).
Mr Saab's conduct was very serious and we had no difficulty in being satisfied that he was guilty of professional misconduct. We found that each of the individual complaints of unsatisfactory professional conduct that were brought by the Commission were so serious that individually each amounted to professional misconduct.

The Tribunal's powers

Under s.149A(1) of the National Law, the Tribunal has various general powers including the power to reprimand Mr Saab or impose conditions on his registration. In addition to those general powers a finding of professional misconduct triggers the Tribunal's discretionary power under s.149C(1)(b) to suspend or cancel Mr Saab's registration.
An order may provide that an application for re-registration may not be made until after a specified time: s.149C(7) National Law. An order of this kind sets a non-review period.

What the parties seek

The Commission seeks protective orders in the form of cancellation of Mr Saab's registration as a pharmacist, and the setting of a non-review period of five years. In addition the Commission submits that Mr Saab poses a substantial risk to the health of members of the public and seeks a prohibition order. Specifically the Commission seeks an order prohibiting Mr Saab from providing any pharmaceutical services (including as a pharmacy assistant, dispensary assistant and/or compounding assistant) until such time as he is re-registered as a pharmacist.
Mr Saab submitted that it was not appropriate to cancel his registration for any period. He seeks protective orders in the form of a reprimand, and a minimum six months period of suspension during which time it was proposed he would complete 500 hours as a supervised unregistered pharmacist. Upon registration he would be subject to a series of conditions including compliance with a mentorship program, auditing, supervision, that he not own a pharmacy and that he attend for psychological treatment.
In addition the Commission seeks an order for costs. This is not opposed by Mr Saab.

Evidence

Mr Saab put forward a number of character references, medical certificates, an initial and a supplementary report from Dr Ben Teoh, Psychiatrist; and a report from Patrick Mahony, Pharmacist.
Mr Mahony had previously been called as an expert witness by Mr Saab in the stage 1 proceedings. Mr Mahony is pharmacist proprietor in rural New South Wales.
The character references were from Mr Saab's sister, Rania Ajaka, and a family friend Joseph Chahade.
Ms Ajaka was not made aware by Mr Saab of the disciplinary proceedings against him until early 2019 some 2 years after the PRU investigation and the s.150 hearing. Amongst other matters relating to Mr Saab's family background Ms Ajaka sets out the impact that the disciplinary proceedings have had on Mr Saab's outlook and mental health.
Mr Chahade has known Mr Saab for 22 years. He is a close family friend. He spoke of Mr Saab's character and work ethic.
A medical certificate from Dr Michel Sidhom stated that Mr Saab suffered depression and anxiety, and had been seen by psychiatrists in 2008, 2011 and 2017. Dr Sturrock, psychiatrist stated that he had treated Mr Saab for anxiety and depression from 31 July 2017 to 17 September 2018 and detailed the medication taken by Mr Saab.
Dr Teoh's report references Mr Saab's family background and medical history, sets out a mental state examination and provides a summary and opinion.
Dr Teoh wrote that Mr Saab had reported that he had become anxious and depressed following the suspension of his registration. He had vivid dreams of the mistakes he had made. Mr Saab was worried about the uncertainty of his future. Mr Saab reported that he was remorseful that he did something that could harm someone in the community. He said that he had been shown what he had done wrong in his pharmacy and "the risk was unacceptable". Apart from these generalised comments there was no specific canvassing or assessment of Mr Saab's insight and remorse.
Dr Teoh's mental state examination of Mr Saab recorded that Mr Saab reported anxiety and depressive symptoms. It recorded that he had lost his confidence and was worried about his future. Dr Teoh remarked that Mr Saab was socially isolated and preoccupied with negative thoughts. Mr Saab's cognitive functions were intact and there was no evidence of short or long term memory impairment.
Under the heading "Summary and Opinion", Dr Teoh expressed the view that Mr Saab's presentation was consistent with a diagnosis of Major Depressive Disorder in remission. Dr Teoh noted that Mr Saab was on antidepressant medication and he was of the view that he could benefit from continuing to see a psychiatrist and taking his medication. Dr Teoh was also of the view that Mr Saab was fit to work as a pharmacist from a psychiatric perspective as his depression was in remission following treatment.
Mr Mahony's report was prepared after a single interview with Mr Saab of around an hour and 20 minutes arranged by his solicitors. The report observed at the time that the conduct occurred, Mr Saab had taken on more than he was able to handle and was ill equipped for his role as a pharmacist proprietor. Mr Mahony canvases the concept of the "Four Stages of Competence", and in the context of Mr Saab's conduct, he opines that Mr Saab was unconsciously incompetent.
Mr Mahony notes that Mr Saab has been suspended since March 2017 and then details a pathway for Mr Saab to transition to regain his registration. The pathway identified by Mr Mahony included a mentoring program, supervision of practice, a formal practice assessment and conditions of practice such as access to controlled drugs.
In addition to oral evidence Mr Saab made a one a half page statement dated 14 April 2021 and titled "Reasons for Being Reinstated as a Pharmacist".
Mr Saab's written statement referred to his purchase of the pharmacy in 2014 and the improvements he had made to service delivery. He noted that as the business grew it required more "devotion". He spoke of other demands placed on him arising from his personal and working life. In context this was a reference to him getting married and his involvement in a family run building construction business. He stated that in hindsight he lost oversight of this role as a pharmacist and "mistakes were made". He stated that these mistakes ultimately caused "unintentional risks" to the community and its residents.
Mr Saab stated that since selling his pharmacy in December 2017 he has not worked in the field and had been working in his construction business. He believed he had a lot more to offer the community as a pharmacist and would endeavour to rectify the mistakes he had made in the past. Tellingly Mr Saab did not detail his understanding of those mistakes nor did he put forward any specific details as to how he would rectify these mistakes.
Apart from these limited references to his past conduct, Mr Saab did not offer in his written statement nor subsequently in his oral evidence any explanation as to what had caused him to engage in the proven extensive and pervasive misconduct.
Indeed there was no meaningful accounting by Mr Saab for what he referred to as his past mistakes. There was nothing in his evidence that demonstrated a concrete wish to atone or make amends for his past conduct that satisfied us that his perception of wrongdoing was genuine.
For example in our stage 1 decision we made substantial adverse findings about Mr Saab's credit. One area in which we were critical of Mr Saab's evidence was as it related to Patient Z.
Patient Z, a male, had been dispensed anabolic steroids, benzodiazepines, oestrogen suppression drugs ordinarily used for breast cancer, fertility drugs, human growth hormone and Tramadol for pain relief. The prescriptions for these drugs were never located. The quantities were manifestly in excess of what would ordinarily be prescribed for an appropriate therapeutic purpose. We concluded that the combination of drugs dispensed to Patient Z, including in the quantities dispensed, suggested that the medication was being abused.
In stage 1 we did not believe that Mr Saab had been candid about his role in dispensing medications to Patient Z, or the true extent of his knowledge about Patient Z. This deficiency was not rectified by Mr Saab in his oral evidence in stage 2.
When questioned by the Tribunal at the stage 2 hearing Mr Saab continued to deny that he had dispensed for Patient Z notwithstanding the observations made by the Tribunal in the stage 1 decision about the contradictory nature of his evidence in relation to Patient Z, and the fact that he was present at the pharmacy during the majority of the times that Patient Z presented.
Mr Saab was asked about the Tribunal's decision in stage 1 and his reaction to it. Mr Saab said he accepted the findings made in the decision. In reading the decision he felt ashamed and disappointed about his behaviour "in unintentionally putting the public at risk with the behaviours displayed at the pharmacy". Mr Saab added he regretted his actions and was deeply remorseful for the harm that he may have unintentionally caused to the community through his own actions, that of pharmacists in his employ and the pharmacy itself.
In stage 1 Mr Saab had denied the majority of the Complaint. In view of this, he was pressed in cross-examination as to the basis for the change in his attitude and understanding of the Complaint.
Mr Saab referenced the help of Mr Mahony and the other witnesses in reviewing his thought processes during the stage 1 proceedings. He stated that he had taken a step back to take a look at how things were done and the way things should be done moving forward. Apart from these general statements Mr Saab gave no explanation or detail as to why he now accepted that his conduct amounted to unsatisfactory professional conduct and professional misconduct.
In response to questioning by the Commission about the inspections made by the PRU into the pharmacy and Mr Saab's attitude to these inspections, Mr Saab responded that if anything the PRU should have inspected his pharmacy earlier.
In support of this view Mr Saab stated that Mr Mahony had pointed out to him that with the volume of Schedule 8 medications that the pharmacy was dispensing that there should have been more oversight; and that if there was, he thought, "we could have caught this a lot earlier". It was put to Mr Saab that as a registered pharmacist and proprietor he should have realised these issues and intervened. Mr Saab disagreed with this proposition. He explained that Mr Mahony's pharmacy had received a notice for dispensing two packets of Duragesic a month. Mr Saab rhetorically asked why the PRU made no inquiries of his pharmacy given it was dispensing ten packets a week.
At another point when it was put to Mr Saab that it should not have required an inspection by the PRU to bring to his attention the excessive quantities of medication being dispensed by his pharmacy, Mr Saab suggested that more oversight by the PRU moving forward would help protect the community better.
In response to questions asked by the Tribunal Mr Saab failed to display any understanding of the responsibilities of a proprietor pharmacist. He was unable to articulate in a meaningful way what dispensing records he would examine to monitor dispensing practices. For example he made no mention of drug and patient histories, stock levels and ordering. He simply referred to "turnover, script numbers, PBS contributions, cash EFTPOS".
Mr Saab did not put forward or rely on any evidence from colleagues. Although he referred in his oral evidence to having completed online training, he did not put forward any evidence of continuing or professional development or other steps he has taken to address the conduct issues which were the subject of the stage 1 proceedings and decision.
Overall Mr Saab's evidence did not give us any confidence that he was remorseful or possessed any real insight into his conduct. Indeed his evidence demonstrated a complete failure to appreciate the moral dimension of his conduct.

The principles relevant to the making of protective orders

Having found the complaint of professional misconduct proven against Mr Saab powers to suspend or cancel his registration are enlivened: see s. 149C(1) of the National Law. Further, if we are satisfied that Mr Saab poses a substantial risk to the health of members of the public we may prohibit him from providing specified health services for a period specified in the order or permanently: see s. 149C(5)(a) of the National Law.
In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law. As the Tribunal's paramount consideration is the protection of the health and safety of the public, an imposition of restrictions on the practice of a health professional is only to be made in pursuit of according with this higher objective. Such restrictions are only to be imposed where necessary to ensure health services are provided safely, at an appropriate quality: see s 3(3)(c) National Law. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at 34.
In Lee v HCCC Barrett JA at [20] and [21] considered the exercise of powers by Tribunals to make protective orders and concluded: Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist [20]. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards [21].
As observed by Basten JA in Prakash v HCCC [2006] NSWCA 153: The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted [91].
In Health Care Complaints Commission v Do, [2014] NSWCA 307 Justice Meagher (with whom Justices Basten and Emmett agreed) referred to the importance of denunciation of misconduct, in the context of s. 3 and s. 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise [35].
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.
In submissions made on behalf of Mr Saab reference was made to the impact of the disciplinary proceedings on him and the fact that he had already been suspended for some 4 years. It was submitted that these matters were relevant to the question of general deterrence because Mr Saab had already been punished by way of suspension for a significant time.
We reject that submission because it does not reflect the purpose of the disciplinary powers of the Tribunal. As set out above that purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards.
In Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [72]-[74] the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. The Court of Appeal relevantly held: The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. ... In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. ... [74]
Further the mere fact that a complaint may be old or some years have passed does not diminish its seriousness: see Prakash v Health Care Complaints Commission at [52] per Santow JA.
In Lee v Health Care Complaints Commission Barrett JA referred, at [72], to Walsh JA's observation in Ex parte Tziniolis; Re Medical Practitioners Act (1956) 67 SR (NSW) 448 at 461 that: ... 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.
Barrett JA concluded that "a finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct." at [73]
Applying the legal principles outlined above we will make findings about two relevant matters; the risk to the health and safety of the public if Mr Saab were permitted to practise with conditions and the seriousness with which we view Mr Saab's proven misconduct.

Risk to health and safety of the public if Mr Saab were to practice with conditions

Evidence put forward by Mr Saab

We found Mr Mahony's report of limited assistance. This is because, and as submitted by the Commission, the principles applicable to the question of what protective orders should be imposed are the relevant legal principles which we have canvassed above and which highlight that the paramount consideration as enunciated in the National Law is to protect the public.
The protective orders we make in this matter are underscored by the factual findings we made in stage 1 of the proceedings and what we found to be the proven Complaint. Therefore a consideration of matters such as the objective seriousness of the misconduct, and the nature and extent of the risk to the health and safety of the public that Mr Saab poses are critical. Remorse and insight as demonstrated by a practitioner can be relevant to the assessment of that risk.
Viewed in this way Mr Mahony's report applying what he refers to the four stages of competence, and his assessment that Mr Saab was unconsciously incompetent does not and cannot replace the factual findings we made in stage 1 in respect of Mr Saab's misconduct. It does not adequately explain why Mr Saab failed to comply with professional Guidelines and his obligations under the PTGR. Nor does it explain the unethical and improper conduct in which Mr Saab engaged. It does not tell us anything about the level of Mr Saab's insight or remorse.
Further, the Complaint brought against Mr Saab is not based on competence to practise. The Complaint was that Mr Saab's conduct amounted to unsatisfactory professional conduct in that his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; it was improper or unethical; and that it constituted professional misconduct.
As submitted by the Commission, cancellation of Mr Saab's registration as sought by it is based on the finding of professional misconduct. It is not based on his competence to practise.
The character references and medical certificates put forward by Mr Saab speak to his character and mental health. We accept that Mr Saab is well regarded by his sister and family friend. We also accept Mr Saab has experienced mental health issues in the past, particularly arising from the stress associated with these proceedings. However, the evidence did not suggest that his mental health issues caused or contributed to his misconduct or affected his ability to take steps to demonstrate remorse or insight.
Similarly the report of Dr Teoh was of limited assistance. Apart from the generalised statements attributed to Mr Saab extracted at [41] above, it did not provide a meaningful assessment of Mr Saab's remorse, reflection or insight. For example it did not reference any statements which came from Mr Saab in which he provided a full accounting for his past misconduct or why it occurred.

Mr Saab's Understanding and insight

In the stage 1 proceedings we found that Mr Saab seemed unable or unwilling to face up to the gravamen of the Complaint against him. He was equally unable to accept the significance of his conduct both as the pharmacist responsible for dispensing individual prescriptions and as the owner responsible for the operations of the Pharmacy. This lack of insight and remorse continued to be demonstrated by Mr Saab in the stage 2 proceedings.
Apart from the reports from Mr Mahoney and Dr Teoh, which we have found are of limited assistance, the only source of any information that we have concerning Mr Saab's response to what occurred is his own written and oral evidence.
There is no evidence before us from Mr Saab about whatever caused him to engage in extensive and pervasive misconduct. He admitted he had made "mistakes" however on a number of occasions particularly in his oral evidence he described his conduct as "unintentional". He continued to deny dispensing to Patient Z.
Mr Saab's evidence did not shed any light on how he would rectify his past mistakes or what steps he would take to avoid a repetition of future misconduct.
Troublingly Mr Saab continued to divert attention away from his own responsibilities as he had done in stage 1. For example he suggested that the PRU should have inspected his pharmacy earlier and that more oversight by the PRU moving forward would help protect the community better. He failed to provide any indication in practical terms as to how he as a pharmacist would address the need for the protection of the health and safety of the public.
In our view Mr Saab has shown no insight into the cause of the Complaints nor has he sought to address the causes. He has not shown any evidence of the completion of any educational or professional development courses with a view to addressing shortcomings in his judgment and ethical responsibilities. These were all central issues in the stage 1 proceedings and decision. We have no confidence that Mr Saab would address any ethical issues in the future differently or that he would make any changes to the manner in which he would practice as a Pharmacist where he permitted to do so in the future.
Although Mr Saab said he regretted and was remorseful for his actions there was nothing meaningful about what he has done or what he said in his written and oral evidence which demonstrated that his perception of wrongdoing was genuine. In our view this makes the future risk posed by him to the profession of pharmacy that much greater.
The report prepared by Mr Mahony and submitted on behalf of Mr Saab identifies a transition to registration by means of a pathway of mentorship, supervised practice, practice assessment and conditions of practice. However these measures gave us no confidence that Mr Saab will practice in a safe and ethical manner. This is because Mr Saab expressed limited insight into his misconduct, has shown no insight into how and why his behaviour led to the matters the subject of the Stage 1 proceedings and displayed little or no understanding of the legal requirements which applied to his practice as a pharmacist. Further his stated expressions of regret and remorse lacked vigour and direction. He displayed no meaningful contrition or remorse for his misconduct and the potential harm to which his patients were exposed.
In sum and as submitted by the Commission Mr Saab has taken no significant steps to improve his insight, reflection and/or acknowledgement of the impact of his actions as a Pharmacist and proprietor in placing the health and safety of the public and the patients the subject of the Complaint at risk. There is an unacceptably high risk of his behaviour leading to further issues in his professional practice as a Pharmacist consistent with the Complaint in the future.

Seriousness of conduct

In our view Mr Saab could not have been unaware of the significant amounts of opioids, human growth hormones and anabolic steroids passing through his pharmacy given the amounts ordered and dispensed, the substantial number of patients using these medications and the amount of money generated for his pharmacy as a result.
It is clear to us from the nature and extent of the Schedule 8 medications and anabolic steroids dispensed by Mr Saab's pharmacy which was examined in detail in stage 1 of the proceedings and the findings and conclusions made in our stage 1 decision, that the conduct of Mr Saab was either facilitating these medications making their way into the community or he was recklessly indifferent to whether or not that occurred.
Further, Mr Saab showed no regard for regulatory compliance. He failed to report missing methadone and conduct twice yearly stocktakes. He continued to use a methadone pump which on his account he knew to be faulty. His conduct was entirely inconsistent with the proper, ethical and appropriate practice of the profession of a pharmacist.

Conclusion

Mr Saab has engaged in serious misconduct and shown complete disregard for patient safety. He has demonstrated an inclination to practise unethically and improperly.
We did not find Mr Saab persuasive as to his remorse or reflection. No steps were taken by him personally to address the issues identified in the stage 1 decision apart from a conference arranged for him with Mr Mahony.
Mr Saab's limited insight and his failure to show any motivation to change aspects of his behaviour notwithstanding being alerted to his deficiencies in the reasons provided in the stage 1 decision persuade us that he would be a significant and substantial risk to the public which cannot be addressed by conditions if he continues to practise.
On the evidence before us Mr Saab continues to show a lack of insight as to the seriousness of his misconduct. The prospect of him again engaging in such misconduct in the future remains significant and ongoing. Further, Mr Saab's misconduct is so serious it must be denounced.
Mr Saab's misconduct encompassed significant and ongoing breaches of his professional obligations as both a proprietor and as a Pharmacist in relation to the PTGR. Such breaches included the dispensing of Schedule 4B and D, and Schedule 8 medications and permitting high quantities of opioids including high strength Oxycodone, high strength Fentanyl and benzodiazepines, such as Diazepam in high quantities and high strength Alprazolam, to be dispensed on forged prescriptions, in excessive quantities and as private prescriptions to numerous patients over a period in excess of two years.
Mr Saab failed to report losses in methadone. He failed to undertake accurate stock checks for methadone. He continued to use a methadone pump which on his account he did not believe was accurate. He put the safety of patients at risk by not receiving the correct dose.
We conclude that an appropriate protective order is one that involves the cancellation of Mr Saab's registration. Such an order will not only perform its protective function but it also serve as a deterrent to Mr Saab and to other pharmacists in the event that they might be tempted to engage in a practice marked by inappropriate dealing with drugs of addiction and other restricted substances as well as the other shortcomings in Mr Saab's practice which we have identified.
Such an order will also assist in upholding the integrity of the profession in the eyes of the public. In our view the public's confidence in the pharmacy profession to protect their safety would be seriously undermined if a practitioner not adhering to the legislation, policies and Guidelines for the dispensing of drugs of addiction and restricted substances to multiple patients was permitted to continue to practice.
These matters, together with the maintenance of confidence in the standards of the pharmacy profession require that Mr Saab's registration be cancelled.
As we indicated in our stage 1 decision pharmacists act as our caretakers in the community in the responsible and lawful dispensing of Schedule 8 medications and drugs of addiction, Schedule 4 Appendix D (Prescribed restricted substances (4D)) and Schedule 4 Appendix B (Special restricted substances (S4B)). It is their compliance with the protective architecture to which the Regulations and Guidelines are directed which ensure the safe benefits of such medications to individual patients and the community as a whole. As a proprietor and pharmacist Mr Saab dispensed substantial quantities of prescription opioids and anabolic steroids that were not for a therapeutic purpose. The gravity and repetition of his conduct for some 36 patients over a prolonged period is conduct of a nature which strikes at the heart of public confidence in the pharmacy profession as caretakers of prescription opioids and restricted substances.
If Mr Saab were inclined to apply for registration as a pharmacist in the future, the protection of public dictates that he should only be able to do so when he is able to demonstrate that he is fit to make that application. We were unable to determine a clear reason for Mr Saab's extensive and pervasive misconduct. In our view a period of five years during which Mr Saab cannot apply for re-registration is appropriate.

Prohibition order

In its submissions the Commission sought a prohibition order on the basis that Mr Saab poses a substantial risk to the health of members of the public. The terms of the prohibition order sought were that Mr Saab be prohibited from providing any pharmaceutical services, including as a pharmacy assistant, dispensary assistant and/or compounding assistant until such time as he is re-registered as a pharmacist.
No specific submission was made on behalf of Mr Saab about the making of a prohibition order.
Where the Tribunal makes an order under s 149C(1)(b) of the National Law which suspends or cancels a registered health practitioner's registration, and it is satisfied that the person poses a substantial risk to the health of members of the public, the power to make a "prohibition order" may be exercised: s 149C(5).
An order of this kind is aligned with the protective purpose of the legislation.
Section 149C(5) of the National Law states if … the Tribunal is satisfied the person poses a substantial risk to the health of members of the public, it may by order ("a prohibition order") do any one or more of the following - 1. prohibit the person from providing health services or specified health services for the period specified in the order or permanently; 2. place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Section 5 of the National Law defines "health service" whether provided as public or private services, and includes amongst other services pharmaceutical services.
On the evidence before us we find that Mr Saab poses a substantial risk to the health of members of the public if he were to be involved in the provision of pharmaceutical services. This is because Mr Saab could potentially have access to a pharmacy dispensary and the unacceptable risk that entails. Accordingly we are satisfied that the appropriate protective orders in this case ought to include a prohibition order as submitted by the Commission to prevent him from working in such circumstances.

Costs

The principles relevant to the exercise of discretion in awarding costs are the subject of recent discussion in the High Court of Australia in Northern Territory v Sangare [2019] HCA 25. The High Court stressed that the awarding of costs is a discretionary matter, but the discretion must be exercised judicially by reference to relevant considerations. Their Honours further explained the general rule that costs follow the event reflects the position that a successful party should be compensated for the expenses it has incurred. These long established principles are also relevant to professional disciplinary proceedings: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
The Commission has been successful in the proceedings accordingly a costs order will be made in its favour.

Orders 1. Under s149C(1)(b), Tony Saab's registration as a Pharmacist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order. 2. Under s149C(7) Tony Saab may not make an application under Division 8 to return to the register until at least five years from the date of this order. 3. Under s149C(5)(a) Tony Saab is prohibited from providing any pharmaceutical services (including as a pharmacy assistant, dispensary assistant and/or compounding assistant) until such time as he is re-registered as a pharmacist. 4. Tony Saab is to pay the costs of the Health Care Complaints Commission as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW)

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: 06 September 2021

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)

Cited By (2)