Osman v Health Care Complaints Commission [2025] NSWCATOD 42

(3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if -

(a) the person makes an application for registration to the National Board; and

(b) the relevant National Board decides to register the person.

(3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4).

(4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order.

1. The purpose of a review, in a matter of this type, is to determine the appropriateness of the order cancelling the registration continuing in force as at the time of the review (s 163C(1) National Law). It is not the purpose of the review to reconsider the decision to cancel the registration or to reconsider any findings made in connection with the making of that decision (s 163C(2) National Law).
2. In conducting this review, we bear in mind the objective and guiding principle of the National Law, which is set out in s 3B:

3B Objective and guiding principle [NSW]

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

Note -

This section is an additional New South Wales provision.

1. We also have had regard to the objectives of the national registration and accreditation scheme of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a) National Law).

1. In Jan v Health Care Complaints Commission [2021] NSWSC 350 at [33], Leeming JA stated, "[t]he starting point is NCAT's evaluation of the plaintiff himself, in light of his history of transgression after having been deregistered."
2. The decision of Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney), the NSW Court of Appeal explained that the Tribunal's role is not to consider the correctness of the decision to cancel the practitioner's registration, but to determine the "appropriateness" of making a reinstatement order at the time of the hearing for such an order: Mooney at [40].
3. The relevant principles in determining the "appropriateness" of making a reinstatement order were discussed by the NSW Court of Appeal in Qasim v Medical Council of New South Wales [2021] NSWCA 173 (Qasim) at [17]-[19]:

[17] In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public.

[18] The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession.

[19] Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. In this case, given that the sole basis of the appellant's deregistration was lack of competence by reason of an impairment, what the appellant had to demonstrate was that she was no longer unfit by reason of an impairment of such a nature and degree as impaired her mental capacity to practise. On that issue, she bore the onus of proof." (Footnotes omitted)

1. Thus Mr Osman bears the onus of demonstrating that he can be trusted to practise in a way that conforms to the professional standards expected of a Pharmacist and which presents no risk to the safety of the public or to the confidence of the public in the profession of pharmacy.

1. Mr Osman provided an affidavit dated 1 October 2024 and gave oral evidence.
2. Mr Osman stated he had reviewed the Tribunal's decision understood it and accepted full responsibility for his actions. He had attended to a number of matters directed to address the issues raised in the Tribunal's decision.
3. Since the Tribunal's decision Mr Osman has regularly seen a psychologist Zeinab Allaw. In context the psychological sessions were to provide treatment goals and a therapeutic plan to address the shortcomings identified in the Tribunal's decision as to how Mr Osman dealt with the intimidation he was confronted with in June 2020 and which led to his misconduct.
4. At the time of the hearing Mr Osman was seeing Ms Allaw approximately on a monthly basis. He gave evidence about how he had found these sessions beneficial in effectively managing stress and anxiety. He indicated the steps he would take if he was confronted with the same situation again which included contact with his lawyer, police and the PSU.
5. After having his registration cancelled Mr Osman has continued with professional education and training. He has undertaken Continuing Professional Development (CPD) courses in excess of what is required (minimum 80 units in a calendar year). He has undertaken 56 PSA (Pharmaceutical Society of Australia) Continuing Professional Development Units; and 75.5 Guild Learning and Development, Continuing Professional Development Units making a total of 131.5 Units since the Decision cancelling his registration.
6. On 26 March 2024, Mr Osman enrolled into the Ethics and Dispensing Course a 4-part program offered by Pharmaceutical Society of Australia and has so far completed Part 1 (Legislation and Pharmacy) and Part 2 (Opioid Substitution program). At the time of the hearing it was his intention to complete Part 3 (Legislation and Forensic Pharmacy and Part 4 (Demonstrate, Review and analyse ethical pharmacy practice) by the end of 2024.
7. Mr Osman's evidence was to the effect that he will continue to engage in education and training to ensure his knowledge is up to date, thereby demonstrating his commitment to practising safely and ethically.
8. Mr Osman has sought the assistance of a mentor on a private basis. At the time of the hearing Mr Osman had sought assistance from David Preswick, an experienced Pharmacist. On 30 September 2024 Mr Osman met with Mr Preswick on a formal basis and notes of that meeting were in evidence. Mr Osman indicated that he had obtained valuable support and guidance from this process and believed further communication with and assistance from Mr Preswick would benefit his personal and professional development.
9. Mr Osman answered questions from the Commission in cross-examination. This, together with questions asked of Mr Osman by the Tribunal, provided us with an opportunity to assess Ms Osman's candour and whether his contentions of insight and reflection were genuine.

1. Mr Osman relied on character references secured from three people in November 2024. All of the authors stated they were aware of the matters that gave rise to the cancellation of Mr Osman's registration.
2. Without detailing the contents of all of them, perhaps the most relevant is from Mr Al Haieri, Pharmacist. Mr Al Haieri manages the Beverly Hills Family Chemist on behalf of Mr Osman. Mr Al Haieri has known Mr Osman since April 2023 when he started managing the Pharmacy.
3. Mr Al Haieri said Mr Osman had been very supportive of him in his role of managing the pharmacy. Mr Al Haieri stated that Mr Osman had expressed remorse for his misconduct and had shown a genuine desire for self-improvement. He had read the Tribunal's decision and believed that Mr Osman had gained insight into the issues identified. He believed Mr Osman would be an asset to the profession. We note that Mr Al Haieri has not worked alongside Mr Osman and to that extent his knowledge of Mr Osman's practice prior to the misconduct is limited.
4. Ms Allaw, a forensic psychologist, whom Mr Osman has been seeing on a regular basis, provided a psychological report dated 19 September 2024 and gave oral evidence.
5. Ms Allaw set out the nature and extent of Mr Osman's consultations and treatment plan. Ms Allaw's evidence was to the effect that Mr Osman was committed to his therapeutic plan and treatment goals. Ms Allaw referenced Ms Osman's insight into his past conduct. She held no concerns for Mr Osman's state of mind which would pose any risks to him practicing competently and ethically as a pharmacist.

1. Both parties made submissions canvassing the relevant legislative provisions and case law. Consistent with its written reply the Commission maintained a neutral position.
2. Both parties addressed the Tribunal as to a range of potential practice conditions to which registration could be subject in the event that the Tribunal was persuaded that a reinstatement order should be made. We note that although there were some differences between the parties as to potential wording of conditions, there was a uniformity between the parties as to the nature of appropriate conditions.
3. The Commission sought its costs. No submission as to costs was made on behalf of Mr Osman.

1. In our view the regulatory process had gone a long way to improving Mr Osman's approach to pharmacy practice.
2. Mr Osman has had time away from pharmacy to reflect on the shortcomings of his pharmacy practice both professional and personal which were central to the complaint. He demonstrated through his oral evidence that he had taken the time to deeply reflect on his practice as a pharmacist. He understood that his practice as a pharmacist fell well below the standards of the profession. We believed his expression of remorse and insight was genuine.
3. Without minimising the seriousness of Mr Osman's misconduct, as detailed in the Decision cancelling his registration, the Tribunal is satisfied that he has developed sufficient insight and has a feasible plan of continuing work with his psychologist and continuing professional development, such that we have confidence that similar mistakes will not be made in the future.
4. Having regard to all of the evidence, we find that Mr Osman has demonstrated that, as at the date of the hearing of this application, he can be trusted to practise in a way that conforms to the professional standards expected of a pharmacist.
5. We are confident that Mr Osman can now practise as a pharmacist in a manner which does not compromise the health and safety of the public, or place at risk the maintenance of the confidence of the public in the profession of pharmacy. We find that Mr Osman is now capable of practising in a way which conforms to the professional standards expected of a pharmacist and is highly motivated to do so.
6. We determine that it is appropriate that Mr Osman's registration be reinstated on conditions.

1. Mr Osman accepted that in the event his registration was reinstated that certain conditions were appropriate. These included not to practise as the pharmacist in charge, supervision, audits, performance assessment, education, exchange of information and review. In addition to the conditions proposed by Mr Osman the Tribunal has included a number of additional conditions related to mentoring, continued psychological treatment and an additional educational course in relation to the SafeScript NSW System. In our view these additional conditions address and support Mr Osman's re-entry into practice.
2. We have not set a defined period of time for the condition that Mr Osman is not to practise as the pharmacist in charge. This is because in our view this period ought to be determined by the Pharmacy Council of NSW. As the appropriate review body the Council is in the best position to determine how long this condition ought to remain in the light of supervision reports and a performance assessment to which they will have access. Mr Osman can seek a review of that condition with the Council in due course.
3. We have set out the conditions to which Mr Osman's registration reinstatement is subject at Annexure A of these Reasons for Decision.

1. The Commission seeks its costs, as assessed or agreed. Ms Osman made no submissions about this issue. Section 163C(4) of the National Law provides that the Commission is entitled to appear in a review application.
2. The Tribunal has the power to award costs: National Law, cl 13(1) of Sch 5D. Whilst the general rule is that costs follow the event, the Tribunal has recognised that in an application for reinstatement, the Respondent should be compensated regardless of whether the order is approved or refused provided the Respondent has conducted its case appropriately: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 at [49], citing Ristevski v Medical Council of NSW [2016] NSWCATOD 18 at [87]; Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170 at [49].
3. Two witnesses gave oral evidence Mr Osman and Ms Allaw. The Commission confined its cross examination of each witness. It was focused and targeted in its submissions as to the appropriate conditions to be attached to registration. It assisted in the process of formulating conditions. It conducted its case appropriately. In these circumstances it is appropriate that the Commission be awarded its costs.

(1) Pursuant to s 163B(1)(c) of Health Practitioner Regulation National Law (NSW) 2009, the Tribunal makes a reinstatement order.

(2) Pursuant to s 163B(4), the Tribunal imposes conditions on the Applicant's registration the subject of the reinstatement order. The conditions are set out in Annexure A and are attached to the Tribunal's Reasons for Decision.

(3) The Applicant is to pay the Respondent's costs pursuant to cl 13 of Sch 5D of the National Law, as agreed or as assessed.

(1) The practitioner is not to practise as the pharmacist in charge.

(2) Upon entering the pharmacy premises in which they intend to practise, the practitioner must notify the pharmacist in charge of condition (1) before commencing to practice.

(1) To practise under Category C supervision in accordance with the Pharmacy Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.

(a) To nominate a supervisor for approval by the Council, within 14 days of commencing work or as specified by the Council.

(b) To meet in person onsite with the supervisor for a minimum of two hours on a fortnightly basis, for a period of 6 months and thereafter at a frequency to be determined by the Council.

(c) At each supervision meeting the practitioner is to review and discuss their practise with their approved supervisor with particular focus on:

(i) Pharmacy Board of Australia Code of Conduct.

(ii) Pharmacy Board of Australia Guidelines for dispensing of medicines.

(iii) Management, accountability, storage, recording, and identification of red flags relating to high-risk medicines, in particular medicinal cannabis.

(iv) Responsibilities and obligations as a pharmacist relating to Poisons and Therapeutic Goods Regulation 2008.

(v) Pharmacy Board of Australia Guidelines for Proprietor Pharmacists.

(vi) Implementation of policies and procedures.

(d) To authorise the approved supervisor to provide written reports to the Council at monthly intervals, or as specified by the Council.

(1) The Practitioner is to undergo external auditing as follows:

(a) The Practitioner is to nominate an appropriate external auditor to be approved by the Pharmacy Council of NSW for the purpose of conducting audits of the Practitioner and the Pharmacy as set out below.

(b) The Audits are to focus on (but not be limited to) compliance by the Practitioner and the Pharmacy with the Poisons and Therapeutic Goods Regulation 2008 (NSW), and codes or guidelines or standards approved by the Pharmacy Board of Australia. With a particular focus on the management of Schedule 4D, S4B and S8 drugs.

(c) The Audits are to be conducted quarterly for a period of at least two years.

(d) The Practitioner is to authorise the Auditor to provide quarterly reports to the Council and to inform the Council within one business day if there is any concern about the Practitioner or the Pharmacy meeting the relevant Standards.

(e) The Practitioner is to meet all costs associated with the auditing conditions.

(f) As soon as practicable after the Auditor is approved by the Council, the Practitioner must provide the Auditor with a copy of the decision made by the Tribunal.

(1) The practitioner is to within 3 months of the date of reinstatement, to undergo a Performance Assessment, which should focus on:

(a) Responsibilities and obligations as a pharmacist relating to Poisons and Therapeutic Goods Act 1966 and Regulation 2008

(b) Dispensing procedures and work practices to comply with:

(i) Current Dispensing Guidelines and Standards

(ii) Shared Code of Professional Conduct for Pharmacists

(iii) Proprietor oversight

(c) Clinical Skills and knowledge as a pharmacist

(d) Targeted CPD activities to improve practice knowledge and maintain professional responsibilities.

(2) The practitioner is to comply with any instructions provided by the Pharmacy Council of NSW in relation to the performance assessment.

(1) To complete within 6 months of the date of this decision the Ethics and Dispensing in Pharmacy Practice (Part 3 and 4) course organised by the Pharmaceutical Society of Australia.

(2) To complete within 6 months of the date of this decision eLearning modules 1, 2 and 3; the SafeScript NSW System - what, when and how?, Monitored medicines and clinical practice (for pharmacists) and Communication and care for patients using monitored medicines (for prescribers and pharmacists) offered by NSW Health.

(a) Within 3 months of the date of this decision provide evidence to the Pharmacy Council of NSW of their enrolment in the above courses.

(b) Within 1 month of completing the courses, provide evidence to the Pharmacy Council of NSW from the training provider of satisfactory completion of the courses.

(c) To bear responsibility for any costs incurred in meeting this condition.

(d) If the courses are unavailable, seek Council approval for a similar course to be undertaken and provide a written explanation as to the reasons why they are making this proposal.

(1) To nominate an experienced registered pharmacist to act as his professional mentor for approval by Pharmacy Council of NSW in accordance with the Pharmacy Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body.

(1) To attend for treatment by Ms Zeinab Allaw, psychologist, or if she is unavailable, a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner.

(1) To authorise and consent to any exchange of information between the Pharmacy Council of NSW and Medicare Australia and Pharmaceutical Services Unit (PSU) for the purpose of monitoring compliance with these conditions.

(1) The Pharmacy Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

(2) Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Pharmacy Board of Australia.

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.