Health Care Complaints Commission v Tanios

Complaint 2

1. The Commission alleges that the practitioner is guilty of unsatisfactory professional conduct under section 139B of the National Law, for the same reasons specified in Complaint 1, but for different circumstances which are as follows.
2. Between 15 October 2013 and 16 July 2014 the practitioner created false entries in the dispensing system at the pharmacy, contrary to clause 177(1) of the Poisons and Therapeutic Goods Regulation 2008 (NSW) ("PTGR"), in the names of Patients A-BB for the purposes of misappropriating Duromine for her own use in circumstances where: 1. there was no valid prescription available; 2. many of the prescribers did not exist; 3. she was aware that entering erroneous medications on a patient's profile could lead to errors in medication management.
3. Between 15 October 2013 and 16 August 2014, the practitioner misappropriated Duromine to Patients C-BB without making payment.
4. Between 18 May 2014 and 13 August 2014 the practitioner created false entries into the dispensing system, contrary to clause 177(1) of the PTGR, in the names of Patients CC-JJ using the names of Pharmacist A and Pharmacy Assistants A and B for the purpose of misappropriating Duromine for her own use and in the following circumstances: 1. there were no valid prescriptions available; 2. many of the prescribers did not exist; 3. she was aware that entering erroneous medications on a patient's profile could lead to errors in medication management; 4. in relation to the dispensing to Patients DD-JJ, without making payment.
5. Between 18 October 2013 and 17 August 2014 the practitioner created false entries in the dispensing system, contrary to clause 177(1) of the PTGR, in the name of Person A for the purposes of misappropriating medications.
6. Between 29 October 2013 and 8 July 2014 the practitioner created false entries in the dispensing system, contrary to clause 177(1) of the PTGR, in her own name for the purposes of misappropriating medications for her own use.
7. On 30 June 2014 and 24 July 2014 the practitioner created false entries in the dispensing system, contrary to clause 177(1) of the PTGR, in the names of Patients L and KK respectively for the purpose of misappropriating Modavigil for her own use and in the following circumstances: 1. there were no valid prescriptions available; 2. without making payment.
8. The practitioner does not contest the charge nor the accuracy of the particulars relied upon in support thereof.

Complaint 3

1. The Commission charges the practitioner with professional misconduct under s.139E of the National Law, asserting that the practitioner: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's 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.
2. In support of the third complaint, the particulars contained in complaint one are relied upon.
3. The practitioner does not contest the charge nor the accuracy of the particulars relied upon. Annexed to these Reasons is a schedule of the drugs misappropriated by the Respondent and referred to in the particulars.

Facts

1. The practitioner was born in December 1986 to a father who was born in Greece and to a mother who was born in Egypt. The practitioner was educated at Padstow Park public school and then attended East Hills Girls Technical High School. She became Dux of her high school in year 12 and achieved the Premier's Award for achieving a UAI of 99.4 in her Higher School certificate. She undertook her degree in pharmacy at Sydney University. The practitioner obtained provisional registration as a pharmacist from 1 July 2010 until 31 December 2010. She then failed to renew her registration. Provisional registration was obtained from 17 March 2011 until 21 July 2011. General registration was recorded from 21 July 2011 until 30 November 2017.
2. Over the years prior to 2013, and particularly in the months preceding April 2013 the practitioner states that she suffered greatly from a very violent and abusive father which resulted in her reporting to the police. As a result the police sought an Apprehended Domestic Violence Order (ADVO) against her father which was issued and was current for a period of 12 months. The practitioner states that, following moving out of her family's home on 12 April 2013, she was diagnosed by her local medical practitioner as suffering from a Post-Traumatic Stress Disorder. Subsequently, in about July 2013 she returned to the family home for her mother's sake. The practitioner states that she found the living conditions with her father were extremely stressful.
3. In September 2013 the practitioner was hospitalised related complications from a medical condition from which she suffers, namely Polycystic Ovarian Syndrome. Her condition required her to visit hospital on two occasions namely in September 2013 and December 2013.
4. The practitioner states that in about October she was working as a full-time pharmacist at Mum's Pharmacy. She states that she is working six days a week and averaging about 12 hours per day. She states she became incredibly tired during this period. She states that she had conversations concerning Duromine with customers and recall that they spoke positively concerning the energy which they experience from taking the drug. Accordingly between October 2013 and August 2014 she consumed Duromine capsules in the morning and found it gave her much energy. After about 12 hours she required another dose.
5. The practitioner acknowledges that she also consumed Diabex to assist her with her bleeding problems arising from her medical condition. She also took other drugs, as outlined in the particulars to the charge to provide her with pharmaceutical assistance.
6. The practitioner was dismissed from Mum's Pharmacy in August 2014 when her misappropriation of medications was detected. She found alternative employment in a location which she thought would benefit her, namely, in a pharmacy at Nyngan where she remained for 10 months. During this period she states that her father, who had heard of the charges being brought against her, travelled to Nyngan where he abused the practitioner. She stated that her father drafted a letter which was sent to the HCCC which denied any wrongdoing.
7. The practitioner states that during 2016, because of difficulties she was experiencing of an orthopaedic nature, she left her employment and underwent a double hip replacement in Sydney. She states that she also underwent rehabilitation. The relationship with her father did not improve, and the practitioner and her father remained estranged.
8. In April 2016 she commenced working at the Priceline Pharmacy in Springwood. The practitioner married in September 2016. Since August 2016 she worked in a pharmacy owned by her husband and her brother-in-law.
9. The practitioner states that she is completing an ethics course conducted by the Pharmaceutical Society of Australia known as the "Ethics and Dispensing in Pharmacy Practice". The practitioner has also undertaken many units of Continuing Education through the Pharmaceutical Society of Australia. The practitioner is also receiving counselling from a psychologist, Julie McKay.

Psychological Evidence

1. Ms Julie McKay has provided psychological report dated 15 February 2017. The practitioner was referred to her from her general practitioner for counselling on 18 March 2016 relating to anxiety and depression brought about by physical, medical, work and family issues. Ms McKay has been consulted on approximately seven occasions, the latest of which was 15 February 2017. Her report states, inter alia: "Marianne has consistently stated willingness to take full responsibility for her actions and to move forward in developing more suitable coping methods to deal with any physical, medical, family and work issues that may arise in the future. Marianne appears to be both motivated and able to make changes in the way she is handling stress currently and has articulated her intention to continue to do so in the future. In addition, Marianne has been growing in confidence in her ability to appropriately manage the various challenges life presents and to maintain clear boundaries both in her work and her personal life. In the period leading up to when Marianne began dispensing un-prescribed medication to herself, she reports that she was under great emotional, physical, cognitive and relational stress in her home environment, in large part due to her father's ongoing physical, verbal and emotional abuse of herself and her mother. This eventually resulted in Marianne taking out an AVO against her father, which she reports was a very difficult and challenging action to take. Marianne continued to live at home with her parents after this time. Around the same time as Marianne was under this duress at home, she was endeavouring to manage the mounting pressure she was experiencing at work. Alongside this, Marianne was suffering intense physical pain and discomfort due to menorrhagia."
2. Ms McKay states that the practitioner has demonstrated that since August 2014 she is able to cope more readily with stressful and complex life events; speaks more openly about the experience to trusted family and friends, is seeking the help of healthcare professionals. The report continues: "Marianne has demonstrated insight into what contributed to her previous circumstances, has sought to take responsibility for her actions, possesses the motivation and ability to make appropriate changes and has declared a commitment to continue to use appropriate strategies in the future."

Medical Evidence

1. Medical records of the South Western Sydney Local Health District comprising emergency discharge reports have been provided relating to the practitioner's visits to hospital in September 2013 in connection with the bleeding suffered by the practitioner. Further, an imaging report dated 30 September 2013 confirms that the right ovary demonstrated indications of Polycystic Ovarian Syndrome ("PCOS"). Other reports dated 1 November 2013 and 19 November 2013 confirm the ongoing bleeding problem suffered by the practitioner due to her medical condition.
2. The practitioner also suffered from Avascular Necrosis of the hips which required surgery.
3. A medical report of Dr Tasneem Kolhapurwala dated 14 March 2017 of the Panania Family Clinic confirms that the practitioner has made "a very good recovery following hip replacements on both sides" and is managing without the need for any medication.

Character References

1. References have been provided in support of the professional conduct of the practitioner whilst she was engaged at the Nyngan pharmacy. A reference dated 15 February 2017 of the proprietor, Sharon Henley, testifies as to the practitioner's competence and describes the practitioner as "one of the best pharmacists that I have had the good fortune of employing".
2. The proprietor of the Wilberforce Everyday Chemist namely Mina Girgis has provided a reference dated 7 February 2017. Such reference spoke of the "intense remorse" of the practitioner. The reference continues: "She is a professional pharmacist with high level of ethics and this incident strikes me as extremely uncharacteristic. She has never been before the courts previously nor, I believe, is likely to again. It is an incident which I believe she is totally remorseful for and would like to take responsibility and move on from and I wish you the best in that endeavour…"

Practitioner's Submissions

1. The practitioner has made submissions, acknowledging that her conduct was both "serious" and "indefensible". However, she submits that the circumstances giving rise to that conduct were extreme, and that there will be no repeat of that conduct. The practitioner acknowledges her profound error and claims that she has developed a capacity to deal with any future comparable pressures. Accordingly, the practitioner's submissions are confined to the nature of the discipline which should be imposed by s.149C of Division 3, Subdivision 6 of the Health Practitioner Regulation National Law (NSW) ("the Law"). Pursuant to Subdivision 6, in the event that the complaint is proved or admitted, the Tribunal's discretion under s.149C is enlivened.
2. The general thrust of the Practitioner's submissions explains her conduct by reference to her family situation, especially the relationship with her father, which resulted in the issue of the ADVO on 11 April 2013 which she sought for her protection. In summary, the Tribunal is asked to accept the submission that the rigid control of the practitioner's father remained, as evidenced by the fact that although she tried to escape from his influence by relocating herself to a pharmacy in Nyngan, the father travelled by train to see her when he learnt of the charges that had been brought against her. The practitioner claims that it was her father who caused her to draft the letter to the Pharmacy Council of New South Wales refuting the need for any conditions to be attached to her registration as a pharmacist pursuant to s.150 of the Law. The Practitioner submits that it was due to domestic violence perpetrated by her father, being both verbal and physical violence, the mental strain and adverse mental and physical effects of the domestic violence which she was experiencing, the deprivation of a safe and secure home environment, compulsion, arising from the foregoing circumstances, of her to remain away from her residence for as long as possible, cultural impediments arising out of her upbringing which was a contributing factor.
3. Another contributing factor was her exacerbated illness which resulted in the need to seek hospital treatment. The disease (PCOS) had existed since she was approximately 12 years old. The disease manifested itself by lethargy. In addition, the practitioner suffered from avascular necrosis of the hips which caused her pain and resulted in the necessity to undergo a double hip replacement.
4. The practitioner submits that it was a combination of her domestic environment, namely, living with her physically and verbally abusive father, the patriarchal cultural norms of the family which resulted in her living in the home environment because of her gender and youth, the mental strain resulting therefrom, combined with her physical illnesses, which have caused her to engage in the conduct complained of.
5. The practitioner submits that, following her dismissal from Mum's Pharmacy, she attempted to resolve the "primary drivers" of her conduct by moving to the remote location of Nyngan and to develop a life for herself.
6. The practitioner submits that she is deeply remorseful for having engaged in the admitted conduct; she acknowledges her conduct was wrong and has an insight as to how it occurred; she is firm and absolute in her conviction to avoid any future misconduct and acknowledges her serious failures. She submits that the circumstances which caused her to engage in the conduct complained of has resolved. She refers to the fact that in March 2016 she acknowledged the truth of the complaints against her and apologised to her co-workers. The practitioner has sought and continues to seek professional assistance from a psychologist to assist her in understanding the matters that gave rise to the admitted conduct. Reference was also made to the report of the treating psychologist Ms Julie McKay dated 15 February 2017 and to Ms McKay's further evidence both in chief and in cross-examination. The practitioner also relies upon the fact that she is undertaking a course, being the "Pharmaceutical Society of Australia Ethics and Dispensing in Pharmacy Practice" course. She has had no previous complaints against her of a professional nature; her conduct since these matters came to attention has been exemplary, as is evidenced by the references of her current employer, Mr Mina Girgis, and the letter of her employer at Nyngan. References have also been provided by Father Jacob, St Mark's Parish, dated 1 March 2016 and Dr Adel Magdy.
7. For the above reasons, the practitioner submits that the Tribunal can be satisfied that she would not be a future threat to the public. Further, if required, she would submit to a regime of orders under s.149A which would provide adequate protection, if it was thought necessary. The practitioner urges that no suspension be imposed upon her.

Jurisdiction of the Tribunal

1. Pursuant to s.149A of the Law, the Tribunal has power to impose sanctions, including cautions or reprimands, suspension, imposition of conditions of practice and other measures to discipline a recalcitrant practitioner. Pursuant to s.149B, the Tribunal is empowered to fine the practitioner.
2. Essentially, the task of the Tribunal is to protect the public and to maintain proper standards in the profession of pharmacy. It is not the function of the Tribunal to impose any penalty: rather, it is required to impose any disciplinary measures to ensure the protection of the public and to incorporate in such disciplinary measures an element of deterrence: see Prakash v HCCC [2006] NSWCA 153 at [91]; Clyne v New South Wales Bar Association [1960] HCA 40 at [201]-[202]; Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 at 441; Law Society of New South Wales v Walsh [1997] NSWCA 185; Lee v HCCC [2012] NSWCA 80. Whether a person can be regarded as a "fit and proper person" has been considered by the High Court of Australia in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56] where Toohey and Gaudron JJ said (inter alia): "However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. This list is not exhaustive but it does indicate that, in certain contexts, (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
3. The standard of proof which is required to be met is the standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362-363: that is, the question whether the issues have been proved to the reasonable satisfaction of the Tribunal, which is a standard below the criminal standard of proof but above the preponderance of probability. In the circumstances of the complaints arising in a matter before the Tribunal, since the facts are admitted, the practitioner has acknowledged her conduct.
4. The Tribunal also refers to the following authorities which establish the standard required of practitioners. In Spicer V New South Wales Medical Board (unreported) Thursday 19/02/81 Hope JA with whom Reynolds and Hutley JJA agreed said at 5, 6: "In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfit to treat those addicted or habituated to drugs but that unfitness in itself demonstrated his present unfitness to be a medical practitioner".
5. In the NSW Court of Appeal has also stated very clearly the purpose of disciplinary proceedings brought against those involved in the health industry. In Health Care Complaints Commission v Do [2014) NSWCA 307,Meagher JA said (inter alia) at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners in 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 are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. Denouncing such conduct 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 practice".

Assessment of the Evidence

1. The Tribunal has found the evidence brought before it relating to the Practitioner's explanation for her conduct, to be troubling. The Tribunal acknowledges that her early childhood and upbringing were constrained because of cultural and family issues. It seems to the Tribunal to explain the fact that the practitioner appears to have been wholly dependent on her family for most of her life, albeit that the relationship with her father was so strained and violent, requiring the practitioner to take the unusual course of seeking an ADVO.
2. Despite such difficulties, it is apparent that the practitioner excelled in her studies where she became dux of her high school before embarking on tertiary studies. The practitioner is clearly highly intelligent, because of her academic record, and because of her academic achievements.
3. However, the Tribunal is concerned by the conduct of the practitioner because of the following matters: 1. When the practitioner's conduct was first brought to her attention at Mum's Pharmacy, the practitioner reacted belligerently. She denied all wrongdoing and instead blamed other employees and sought to implicate them. There is no suggestion that her father was then present or was directing her conduct. 2. The practitioner maintained such belligerence, as is evident in correspondence which was written to the Pharmacy Council of New South Wales on 3 February 2015 and 14 February 2015. Whilst the practitioner maintained that her father drafted the letter for her to sign on 3 February 2015, there is no indication that he wrote the letter of 14 February 2015. In that letter, the practitioner said that she was not in a position to keep an appointment with the Pharmacy Council in Sydney because she was "presently serving as a pharmacist". However, she then made the disingenuous suggestion: "I urge you to come down with a large team of the Pharmacy Council of New South Wales to Nyngan in a fact-finding mission in order to witness and see for yourselves my performance and the strong bond between the whole people of Nyngan and myself. This will help wipe out any confusion." 1. The letters written by the practitioner (even if assisted by her father) display defiance to the Pharmacy Council and a total rejection of any wrongdoing on her part. The practitioner maintained her defiance over 12 months, and the admission of wrongdoing has come at a late stage and when it was known that the proceedings would be heard by the Tribunal. 2. On Thursday 19 February 2015 an interview was held between members of the Pharmacy Council and the practitioner. When questioned concerning the quantity of drugs which the practitioner was said to have consumed, namely Duromine, the practitioner replied: "I don't know what they've done with that. I have no idea what they could do with that. And it's a ridiculous amount for anybody to consume. I mean I would - if it was me, I would be dead by now. Clearly." 1. The remainder of the transcript shows the denial of the practitioner and of obfuscation and confusion. 2. The Tribunal considers that the practitioner's response is accurate in this respect: it is highly unlikely that the quantity of Duromine prescribed could have been solely for herself. The practitioner attended a hearing on 26 October 2016 conducted before the Pharmacy Council of New South Wales under section 150C of the National Law . In Its Findings, the Pharmacy Council noted that the practitioner claimed that the Duromine was for self-use and denied supplying to any else. It was noted that the quantity which was unaccounted for at Mum's pharmacy was 1410 tablets (47 boxes of 30 tablets), and at the usual dose of one per day, the quantity would last for almost 4 years. (47 months) The Pharmacy Council observed "This means a large quantity of medicine dispensed by Ms Tanios still remains unaccounted for." The Tribunal considers that there is the distinct possibility, in the absence of any explanation for its consumption, that the drugs could have been supplied to third parties. However the evidence is inadequate to make any conclusive finding on this issue. Further, the evidence is not clear whether the practitioner has wholly reimbursed Mum's pharmacy for the drugs which she has removed The Tribunal will comment upon the effects of the drugs prescribed by the practitioner later in these reasons. 1. Two references have been provided in support of the character of the practitioner. One such reference is from the practitioner's employer at the pharmacy in Nyngan. However, it transpired during the hearing that the author of the reference was unaware of the complaints that had been brought against the practitioner. The second reference, it transpired during the hearing, was provided by a pharmacist, Mina Girgis, who is the brother-in-law of Ms Tanios.. This fact was not disclosed in the reference. 2. Ms Julie McKay recites the stressful and complex life events which the practitioner has experienced. However, there is nothing in her reports to indicate any ongoing psychiatric reason for the conduct engaged in by the practitioner.

Finding

1. The Tribunal considers that the matters referred to above cause it to be concerned that apart from the domestic violence issues and stress, the practitioner has no real explanation for her conduct. The Tribunal accepts the difficult period which she experienced whilst living at home and accepts that she has had medical issues. However, there is simply no evidence which provides any reason for her to have engaged in the conduct. The conduct was deliberate, calculated and knowingly contrary to the law. There is no suggestion, for example, that any psychiatric cause existed which would have led to the practitioner engaging in the proscribed conduct.
2. The Tribunal notes that conditions were attached to her registration by the Pharmacy Council on 13 December 2016. However, the Tribunal has had regard to all of the evidence, including the evidence of Professor Rohan Rasiah, who confirms that the supply of drugs referred to in the first complaint to a close relative or others; the dispensing of medication to the practitioner herself; and the creation of false entries in the dispensing system for Duromine on 25 occasions constitutes conduct which is unacceptable to the profession and which would draw strong criticism by pharmacists in the profession. Further, the creation of false entries in the name of the practitioner's mother is unprofessional and contravenes the requirements of the Poisons & Therapeutic Goods Regulation. The entries into the system which were false constitute serious breaches of the Code of Conduct for registered health practitioners.
3. The Tribunal considers that the accurate and complete records of the pharmacy are fundamental to the practice of any pharmacy. The false nomination of a medical practitioner as the prescribing doctor would be misleading to any other pharmacist working at the same pharmacy. In this instance, other pharmacists and pharmacy assistants were wrongly accused of changing patient's records and dispensing prescription items without prescriptions.
4. Corrupt records create serious health risks, for example, if a customer is admitted to hospital and is necessary for the hospital to enquire of medication taken by the patient. Further, the expert evidence before us succinctly states as follows: "The creation of false entries is in direct violation of the Pharmacy Board of Australia's Code of Conduct particularly Section 8 - Professional behaviour and 8.4 - Health Records".
5. The Tribunal considers that if the practitioner consumed the Duromine for herself, she would have been seriously impaired. The dose of Duromine which may cause toxicity is 180mg to 240mg per day. The toxic effects are agitation, hypothermia, restlessness, hyper alertness and would impair concentration. It would certainly alter the performance of a pharmacist in their daily duties.
6. The Tribunal also notes the combination of Modavigil and of Duromine would cause hyper alertness, mind racing and agitation which would not be conducive to the work of a pharmacist, and would impact upon the ability of a pharmacist to operate in a professional and responsible manner The evidence shows that the practitioner's colleagues at Mum's pharmacy observed that the practitioner showed signs of agitation.
7. The combination of Modavigil, Duromine and Diazepam increases neurotransmitter GABA which may cause confusion, sedation and affect cognitive function. This would seriously impede practitioner and expose the public to serious risk.

Disciplinary sanction

1. The paramount object of the disciplinary function of the Tribunal is to protect the public: an order made against practitioner is protective in nature and is not punitive: see Prakash v HCCC [2006] NSWCA 153 at [91] where Basten JA said (inter alia): "However the public interest includes 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."
2. Accordingly, where the matter comes before the Tribunal which is so serious as to warrant deregistration or suspension from practice, an element of punishment may be required: see Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
3. The Tribunal considers that the conduct, in respect of each complaint, is established and that in respect Complaint 1 and Complaint 2, the conduct in each case constitutes unsatisfactory professional conduct within the meaning of section 139B of the National Law. Section 139B(1) defines "unsatisfactory professional conduct" to include, relevantly: (a) Conduct that demonstrates the knowledge, skill or judgement 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 and experience. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession."
4. With respect to Complaint 3, the conduct of the practitioner constitutes professional misconduct under section 139E of the National Law. Section 139E defines professional misconduct as: "(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration."
5. The Tribunal considers that the conduct set out in Complaint 1 and Complaint 2 warrants deregistration of the practitioner, and that an order should be made directing that the practitioner should not be entitled to seek registration for a period of 12 months

Costs

1. As to costs, the complainant seeks an order for costs. The award of costs is discretionary, as provided by clause 13 of Schedule 5D of the Law. The oral and written submissions of the practitioner do not address the issue of costs. The usual rule is that the unsuccessful party should pay the costs of the successful party: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51). The Tribunal considers it appropriate to make an order that the practitioner pay the costs of the HCCC unless within 14 days an application is made for a different order.

Orders

1. The Tribunal orders that: 1. the practitioner's registration as a pharmacist is cancelled pursuant to s.149C(1)(b) of the Health Practitioner Regulation National Law (NSW). 2. the practitioner may not apply to be re-registered as a pharmacist for a period of 12 months pursuant to s.149C(7) of the Health Practitioner Regulation National Law (NSW). 3. the practitioner may not perform any work as a pharmacy assistant or in any capacity where she is required to handle Schedule 4D or Schedule 8 drugs during the period of the cancellation; 4. the practitioner is to pay the costs of the complainant, unless, within 14 days of the publication of this decision an application is made by either party for a different order. 5. the publication of the identity of the persons for whom drugs were prescribed by the practitioner be prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW).

TABLE OF MEDICATIONS DISPENSED Date Dispensed To Medication Tablets Dispensed Payment Prescription 15/10/2013 A Duromine 30mg 30 Yes No 15/10/2013 D Phentermine 40mg 30 No No 17/10/2013 A Duromine 40mg 30 Yes No 18/10/2013 Person A Diazepam 5mg 50 Yes No 18/10/2013 Person A Duromine 40mg 30 Yes No 24/10/2013 Person A Diazepam 5mg 100 Yes No 24/10/2013 Person A Microgynon 30 ED tab 150/30mcg 112 Yes No 25/10/2013 Person A Stildem 10mg 28 Yes No 27/10/2013 D Duromine 40mg 30 No No 29/10/2013 Marianne Tanios Motilium 10mg 25 Yes No 31/10/2013 L Duromine 40mg 30 No No 1/11/2013 Person A Duromine 40mg 30 Yes No 3/11/2013 Person A Diazepam 5mg 150 Yes No 3/11/2013 Marianne Tanios Motilium 10mg 25 Yes No 4/11/2013 Person A Deralin 10mg 100 Yes No 5/11/2013 Marianne Tanios Motilium 10mg 25 Yes No 12/11/2013 Marianne Tanios Motilium 10mg 25 Yes No 12/11/2013 Marianne Tanios Stildem 10mg 14 Yes No 15/11/2013 L Duromine 40mg 30 No No 25/11/2013 Marianne Tanios Stildem 10mg 28 Yes No 25/11/2013 Marianne Tanios Motilium 10mg 25 Yes No 29/11/2013 R Duromine 40mg 30 No No 2/12/2013 Person A Diabex 1g 60 Yes No 2/12/2013 Marianne Tanios Motilium 10mg 25 Yes No 6/12/2013 L Duromine 40mg 30 No No 13/12/2013 S Duromine 40mg 30 No No 17/12/2013 Marianne Tanios Motilium 10mg 25 Yes No 24/12/2013 Marianne Tanios Motilium 10mg 25 Yes No 5/01/2014 Marianne Tanios Motilium 10mg 25 Yes No 8/01/2014 Person A Valpam 5 tab 5mg 50 Yes No 8/01/2014 Person A Motilium 10mg 100 Yes No 9/01/2014 R Duromine 40mg 30 Yes No 14/01/2014 R Duromine 40mg 30 No No 14/01/2014 Person A Diabex 1g 120 Yes No 14/01/2014 Person A Stildem 10mg 28 Yes No 14/01/2014 Person A Valpam 5 tab 5mg 50 Yes No 17/01/2014 Marianne Tanios Valpam 5 tab 5mg 50 Yes No 21/01/2014 T Duromine 40mg 30 No No 24/01/2014 Person A Motilium 10mg 25 Yes No 30/01/2014 M Duromine 40mg 30 No No 4/02/2014 R Duromine 40mg 30 No No 10/02/2014 F Duromine 40mg 30 No No 13/02/2014 AA Duromine 40mg 30 No No 13/02/2014 Person A Valpam 5 tab 5mg 50 Yes No 17/02/2014 Person A Diabex 1g 180 Yes No 18/02/2014 Marianne Tanios Dormizol 10mg 14 Yes No 19/02/2014 I Duromine 40mg 30 No No 22/02/2014 Marianne Tanios Motilium 10mg 50 Yes No 28/02/2014 Person A Dormizol 10mg 14 Yes No 3/03/2014 V Duromine 30mg 30 No No 8/03/2014 Person A Movalis 15mg 30 Yes No 9/03/2014 K Duromine 40mg 30 No No 12/03/2014 Person A Deralin 40mg 100 Yes No 14/03/2014 C Duromine 40mg 30 No No 19/03/2014 X Duromine 30mg 30 No No 23/03/2014 W Duromine 40mg 30 No No 23/03/2014 Person A Diabex 1g 240 Yes No 27/03/2014 Marianne Tanios Motilium 10mg 50 Yes No 28/03/2014 R Duromine 40mg 30 No No 28/03/2014 Person A Valpam 5 tab 5mg 50 Yes No 30/03/2014 Marianne Tanios Motilium 10mg 50 Yes No 1/04/2014 N Duromine 40mg 30 No No 1/04/2014 Person A Motilium 10mg 25 Yes No 2/04/2014 Person A Lasix 40mg 100 No No 3/04/2014 P Duromine 40mg 30 No No 13/04/2014 Person A Pyroxin 25mg 100 Yes No 13/04/2014 Person A Deralin 40mg 100 Yes No 15/04/2014 Z Duromine 40mg 30 No No 27/04/2014 J Duromine 40mg 30 No No 1/05/2014 R Duromine 40mg 30 No No 4/05/2014 E Duromine 40mg 30 No No 4/05/2014 Person A Diabex 1g 300 Yes No 11/05/2014 G Duromine 40mg 30 No No 13/05/2014 B Duromine 40mg 30 Yes No 13/05/2014 O Duromine 40mg 30 No No 14/05/2014 Person A Motilium 10mg 25 Yes No 18/05/2014 JJ Duromine 40mg 30 No No 28/05/2014 EE Duromine 40mg 30 No No 29/05/2014 H Duromine 40mg 30 No No 15/06/2014 CC Duromine 40mg 30 Yes No 24/06/2014 Person A Diabex 1g 360 Yes No 25/06/2014 R Duromine 40mg 30 No No 25/06/2014 R Duromine 40mg 60 No No 25/06/2014 DD Duromine 40mg 30 No No 25/06/2014 DD Duromine 40mg 30 No No 30/06/2014 L Modavigil 100mg 60 No No 6/07/2014 Y Duromine 40mg 30 No No 8/07/2014 Marianne Tanios Motilium 10mg 50 Yes No 10/07/2014 U Duromine 40mg 30 No No 13/07/2014 BB Duromine 40mg 60 No No 16/07/2014 Q Duromine 40mg 30 No No 24/07/2014 KK Modavigil 10mg 60 No No 26/07/2014 GG Duromine 30mg 30 No No 30/07/2014 HH Duromine 40mg 30 No No 11/08/2014 II Duromine 40mg 30 No No 13/08/2014 FF Duromine 40mg 30 No No 17/08/2014 Person A Deralin 40mg 100 Yes No 17/08/2014 Person A Valpam 5 tab 5mg 50 Yes No 17/08/2014 Person A Diabex 1g 60 Yes No 16/12/2014 Marianne Tanios Stildem 10mg 28 Yes No

Name of Drug Quantity Dispensed Deralin 400 Diabex 1320 Dormizol 28 Duromine 1530 Lasix 100 Microgynon 112 Modavigil 120 Motilium 600 Movalis 30 Phentermine 30 Pyroxin 100 Stildem 126 Valpam 300

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: 20 June 2017