1. It is the decision of the Tribunal that:
   • (a) The respondent is reprimanded.
   • (b) Should the respondent re-apply to the Pharmacy Board of Australia for registration as a pharmacist:
     1. In order to satisfy the Board that there is no impairment of the respondent's capacity and fitness to practice, and at the respondent's own expense, he be required to undergo independent psychiatric assessment by a practitioner nominated by the Board.
     2. Any registration granted contain a condition that requires the respondent to undertake a minimum of nine months of supervised practice without direct access to Controlled Drugs, the latter as defined by Schedule 8 to the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

1. On 21 December 2016, this matter was referred to the Victorian Civil and Administrative Tribunal (the Tribunal) by the Pharmacy Board of Australia (the Board). The referral under the Health Practitioner Regulation National Law Act 2009 (Vic) (the National Law) concerns the conduct of the respondent, Okan Balci, who was a registered pharmacist between 2013 and 2014.
2. On 28 July 2017, the Tribunal constituted by the presiding member and two health practitioner (pharmacist) members heard the referral. The Board was represented by, solicitor and special counsel, Mr Murray. The respondent was represented by Mr Tehan of counsel.
3. During the course of the hearing the Board announced that it would rely on the Statement of Agreed Facts and Findings (the Statement) filed in the days preceding the hearing date.
4. The materials produced for the Tribunal's consideration either before or at hearing, comprised the Statement; the materials contained in the Tribunal Book; a copy of a report dated 18 November 2014 prepared by consultant psychiatrist, Dr Kochar; and the materials attached to Mr Tehan's written submission. The latter contained very supportive character references provided by the respondent's younger brother, his parents and the Coles Fresh Produce Manager with whom the respondent has worked over the last two years, and included a short report dated 8 May 2017 from treating general practitioner, Dr Hussain and a report dated 21 April 2017 from treating psychologist, Mr Rahmanovic.
5. Having called for and heard evidence from the respondent, during the course of the hearing the Tribunal announced its finding that the respondent had behaved in a way that constitutes professional misconduct as defined in paragraphs (a) and (b) of section 5 of the National Law.
6. The Tribunal proceeded to hear submissions and reserved its decision on determination.

1. The matters summarised below have been drawn from the above-mentioned materials and the respondent's oral evidence.
2. The respondent is 29 years of age and of Turkish origin. He is separated from his wife and currently lives at home with his parents. For the past two years the respondent has been employed in the fresh produce section of a Coles Supermarket.
3. The respondent, who completed a Bachelor of Pharmacy in 2011, had been employed part-time at the Meadow Heights Pharmacy (the Pharmacy), whilst completing his degree studies. He was offered and completed an internship in 2012, and was registered as a pharmacist for the first time in 2013.
4. By the respondent's account, in September 2012, he received treatment for injury to his rib cage. Treatment included prescription, on two occasions, of the strong painkilling medication, Oxynorm (oxycodone).
5. When, in 2013, the respondent commenced working at the Pharmacy as a registered pharmacist, he and his Lebanese fiancee were embroiled in interfamilial conflict arising from their decision to marry. This conflict and the pressures of working as a registered pharmacist provided the context in which the respondent said he commenced unauthorised, self-administration of oxycodone and alprazolam; the latter drug administered in an attempt to manage withdrawal symptoms.
6. On 8 July 2014, the Australian Health Practitioner Regulation Agency (AHPRA) received mandatory notification from the owner of the Pharmacy alleging that the respondent had misappropriated Oxynorm capsules and Kalma (alprazolam) medications over a period of 4 to 6 months. When confronted on 7 July 2014 the respondent apparently admitted the conduct and claimed he was addicted to the medications.
7. The respondent's employment was terminated and, on 8 July 2014, he gave the Board an undertaking not to practise as a pharmacist without approval of the Board. There followed various notifications and investigation of the respondent's conduct in accordance with the National Law. The respondent was also required to undergo a health assessment, it then being anticipated that conditions would be imposed on his registration under section 178 of the National Law.
8. The last mentioned decisions were later repealed and, on 12 August 2014, the respondent's undertaking not to practice as a pharmacist without approval of the Board was accepted. The respondent has not, to date, applied to renew his registration.

1. As revealed by the investigation report, the respondent misappropriated significant quantities of drugs classified as a controlled drug under Schedule 8 of the Standard of the Uniform Scheduling of Medicines and Poisons ('SUSMP') and drugs of dependence under Schedule 11 of the Drugs, Poisons and Controlled Substances Act, 1981 (Vic) especially oxycodone in the form of Oxynorm capsules. The oxycodone misappropriated by the respondent, expressed as the equivalent number of Oxynorm 20mg capsules, indicated that the respondent's average rate of misappropriation had escalated from one daily in May 2013 to 58 or 1160 mg daily in 2014.
2. The investigation report further revealed that between 9 July 2013 and 27 December 2013, when this drug was still classified as a Prescription Only Medicine under Schedule 4 of the SUSMP, the respondent misappropriated at least 1200 Alprazolam 2mg tablets and a further amount of 1500 Alprazolam 2mg tablets in the three weeks between 14 June 2014 and 5 July 2014, when this drug became a Schedule 8 poison.
3. The respondent was charged and, on 4 February 2016, pleaded guilty to 9 rolled-up charges under the Drugs, Poisons and Controlled Substances Act. The conduct constituting the charges under the Drugs, Poisons and Controlled Substances Act to which the respondent pleaded guilty was as follows:

1. on 6 occasions between 24 October 2013 and 27 December 2013, the respondent supplied a Schedule 4 poison (alprazolam) without authorisation; 2. on 50 occasions between 2 May 2013 and 22 February 2014, the respondent supplied Schedule 8 poisons (oxycodone and alprazolam) without authorisation;

1. on 50 occasions between 24 February 2014 and 5 July 2014, the respondent supplied Schedule 8 poisons (oxycodone, morphine or alprazolam) without authorisation;

1. on 10 occasions between 3 June 2013 and 7 February 2014, the respondent supplied Schedule 4 poisons (diazepam, phentermine or alprazolam) to himself for the purpose of self-administration without prescriptions for these poisons; 2. on 48 occasions between 30 May 2013 and 26 February 2014, the respondent supplied Schedule 8 poisons (oxycodone, morphine or buprenorphine) to himself for the purpose of self-administration without prescriptions for these poisons; 3. on 48 occasions between 28t February 2014 and 5 July 2014, the respondent supplied Schedule 8 poisons (oxycodone and alprazolam) to himself for the purpose of self-administration without prescriptions for those poisons; and/or 4. on 42 occasions between 5 May 2013 and 5 July 2014, the respondent being a person required to keep records (pharmacist), knowingly made a false or misleading entry involving oxycodone, morphine, buprenorphine, diazepam or phentermine; 5. on 39 occasions between 20 July 2013 and 5 July 2014, the respondent being a person required to keep records (pharmacist), failed to keep the required records of transactions involving oxycodone and alprazolam; 6. on 212 occasions between 2 May 2013 and 5 July 2014, the respondent had drugs of dependence (oxycodone, alprazolam, morphine, buprenorphine, diazepam or phentermine) in his possession without authorisation.
2. No conviction was recorded. The respondent was placed on a Community Corrections Order (the CCO) for 15 months with conditions that required him to undergo drug addiction therapy, random drug testing and mental health assessment. The respondent was also ordered to pay costs in the sum of $6000. The order for costs was stayed for six months.
3. Pursuant to sections 167 and 193(1)(a)(i) of the National Law, on 23 September 2016 the Board determined that the respondent's behaviour constituted professional misconduct, and further determined that the matter be referred to the Tribunal.
4. The Notice of Allegations was amended prior to the hearing. Arising from the nine charges to which the respondent pleaded guilty, the amended allegations were framed as follows:

1A That, in the period from on or about 2 May 2013 until on or about 5 July 2014, Mr Balci engaged in:

1.1.1 professional misconduct within the meaning of the definition of professional misconduct in paragraphs (a) and (b) of section 5 of the National Law;

1.1.2 unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law, meaning professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public all the practitioners professional peers;

(aa) On 4 February 2016, Mr Balci was found guilty of nine 'rolled up' charges under the Drugs Poisons and Controlled Substances Act 1981 (Vic) (DPCS Act), each charge corresponding with the matters referred to in (A) to (I) above.

(bb) The first principle contained in both the Code of Professional Conduct (1998) and the Code of Ethics for Pharmacists (September 2011) includes an obligation that a pharmacist must exercise professional judgement to prevent the supply of products likely to constitute an unacceptable hazard to health or the supply of unnecessary and/or excessive quantities of medicines and other products, particularly those which have a potential for abuse or dependency.

(cc) The Code of Professional Conduct (1998) and the Code of Ethics for Pharmacists (September 2011) are premised upon pharmacists adhering to the legislation applicable to the practice of pharmacy, including the DPCS Act.

1. The respondent admitted that between 2 May 2013 and 5 July 2014, he engaged in the conduct alleged in the Amended Notice of Allegations and further agreed that this conduct constituted professional misconduct under paragraphs (a) and (b) of the definition contained in the National Law.
2. He further acknowledged that the conduct constituting the charges to which he pleaded guilty, was contrary to a pharmacist's professional obligations under the Code of Professional Conduct (1998) and the Code of Ethics for Pharmacist (2011) and that the conduct constituted professional misconduct under the National Law.

Prior attempt to address addiction and developments since July 2014

1. It appears from the evidence before the Tribunal that, toward the end of 2013, the respondent sought professional help from a general practitioner in the Dallas area, without, he said, fully explaining the severity of his addiction. According to the respondent, when, as advised by this doctor, he attempted to "go cold turkey" he suffered severe withdrawal symptoms and, until the offending was detected in mid-2014, the respondent continued to self-administer large quantities of drugs.
2. The respondent married his fiancee in early 2014. The marriage, however, was an early casualty of the disclosure of the respondent's conduct and loss of his employment.
3. It appears that prompted by the disclosure of his conduct, the respondent sought professional assistance from Dr Mian, a general practitioner the respondent said was experienced in treating opiate dependence. In July 2014 the respondent was placed on the Buprenorphine program for opium dependency, commencing on 32 mg per day, with the dosage slowly reducing to 8 mg per day in the ensuing months. As at the date of hearing, the respondent had successfully completed this program.
4. The respondent was also referred to treating psychiatrist, Dr Kochar. It appears that the respondent consulted Dr Kochar on some five occasions between September 2014 and November 2014.
5. Notably, Dr Kochar diagnosed mild traits of Dependent Personality and, among other things, reported that:
   • between September and November 2014, symptoms of stress, anxiety and depression were treated with a combination of antidepressant medication, mirtazapine, and supportive psychotherapy.
   • The dosage of buprenorphine was by then reduced to 6mgs per day.
   • The respondent was an emotionally dependent and quiet and shy person, who tried to please others.
   • When under stress, the respondent was prone to feelings of anxiety and depression and tempted to self-medicate, rather than admit his problem.
   • The respondent appeared well motivated and, at the time, Dr Kochar understood that the respondent was happy to stay engaged in a treatment program to deal with dependency issues through psychotherapy and CBT.
   • Dr Kochar believed that "after this painful and damaging experience", the respondent was unlikely to repeat the offending conduct.
6. Having read Dr Kochar's report the Tribunal formed the view that, at the time of preparing his report, the psychiatrist contemplated ongoing treatment by way of the prescription of antidepressant medication in conjunction with pyschotherapy. At hearing, the respondent informed the Tribunal that he stopped seeing Dr Kochar following the submission of the psychiatrist's report because he could no longer afford the treatment. At hearing, the respondent said he no longer took medication.
7. The Tribunal notes that the respondent has met all of the requirements of the CCO. Moreover, the results of more recent drug screens are supportive of the respondent's claim that after ceasing the Suboxone (buprenorphine) program he has remained drug-free.
8. That said, the Tribunal also notes that, despite likely ongoing mental health issues, a period of some 22 months elapsed before the respondent sought further specialist support.
9. As the reports of clinical psychologist, Mr Rahmanovic and of another treating general practitioner, Dr Hussain, dated 21 April 2017 and 8 May 2017 respectively, confirm Mr Rahmanovic, who has been the respondent's treating psychologist since September 2016, saw the respondent on nine occasions prior to the submission of his report in April 2017.
10. Mr Rahmanovic has diagnosed: Major Depressive Disorder (the primary diagnosis); Generalised Anxiety Disorder (the secondary diagnosis) and Adjustment Disorder; and Substance Dependence Disorder, the latter in full remission. The treatment currently received seeks to address the respondent's substance dependence and the underlying cause of his addiction. It comprises Cognitive Behavioural Therapy and psychodynamic therapy. As summarised by the parties in the Statement, Mr Rahmanovic considers that the respondent:

1. has a very low likelihood of re-offending; 2. has an excellent prospect of rehabilitation;

1. has demonstrated insight into his actions and the impact on his family, community, patients and the profession; and will be a valuable resource to his profession, and stripping him of that ability will have significant and permanent detrimental effects on his mental health.
2. The Tribunal accepts the cogency of the treating psychologist's assessment of the respondent. Based on the evidence as a whole, the Tribunal further accepts that the respondent has expressed genuine remorse for his conduct and demonstrated insight into how his conduct may have affected those around him and could have affected the welfare of those attending the Pharmacy during the relevant period.
3. Whilst at hearing, the respondent confirmed that he continued to consult the treating psychologist every month or two, it was the respondent's view that this was "just for maintenance". The Tribunal disagrees. The following extracts from Mr Rahmanovic's report demonstrate that, despite the respondent's commendable progress with regard to his rehabilitation, symptoms of depression and anxiety, which were previously treated with antidepressant, medication, "with some success", remain problematic. For instance, in addition to the matters already summarised Mr Rahmanovic also said that:
   • The respondent "reports having lost interest in socialising and managing most of his daily activities, something he did not have problems with prior to this event. He reports always feeling sad and that his self-esteem has plummeted. Mr Balci further reports his anxiety has also increased significantly due to lack of certainty for his career".
   • The respondent's "depressive symptoms impact and continue to affect his mood, concentration, ability to socialise, his self-esteem, his motivation and his memory is affected".
   • The respondent was previously prescribed antidepressants by his general practitioner with some success.
   • The respondent should "continue to engage in regular treatment with a clinical psychologist to address this anxiety and depressive symptoms as well as to helping build resilience in managing stressful situations which he is likely to face in his life in general".
4. It is the Tribunal's view that the medical evidence indicates an ongoing vulnerability to stressors which could impact on his ability to practice as a pharmacist. This is a matter which bears upon the protection of the public and the profession's reputation.

1. The supply of Schedule 8 (and previously Schedule 4) drugs without authorisation and for the purpose of self-administration without prescription; the making of false or misleading entries in pharmaceutical records, the failure to keep required records of transactions involving poisons; and to possession of drugs of dependence without authorisation over an extended period, which ceased only when the respondent was detected, represent egregious breaches of the respondent's professional obligations as a pharmacist. It goes without saying that the respondent's conduct reflects an abuse of the trust of the owner and customers of the Pharmacy and of the community and has brought the profession into disrepute.
2. As mentioned, during the course of the hearing the Tribunal announced its finding that the respondent had behaved in a way that constituted professional misconduct.

1. Any determination of the Tribunal must act to protect the public and uphold the profession's reputation. Having made a finding of professional misconduct, the determinations open to the Tribunal ranged from reprimanding the respondent to cancelling his registration. That said, it is not the role of the Tribunal to punish the respondent, notwithstanding the fact that its decision may involve a degree of punishment for the purpose of deterring the respondent from repeating the misconduct or deterring others working in the profession from engaging in similar conduct. As has been repeated on many occasions in disciplinary proceedings, VCAT's role in proceedings of this kind is to protect the public and the profession's reputation.[1]
2. As it turned out, in this case, the parties jointly submitted that the Tribunal determine that the respondent be reprimanded. It was common ground that in the hierarchy of potential penalties for a professional person, a reprimand represented a serious form of censure and condemnation.
3. Mr Murray, nonetheless, informed that Tribunal that, had the respondent not already spent some three years without seeking to return to practice as a pharmacist, the Board would have sought cancellation of the respondent's registration for a further period.
4. Mr Tehan submitted, in the Tribunal's view correctly, that, whilst it was appropriate to note the Board's position had a different set of circumstances prevailed, any decision to cancel the respondent's registration for a further period would have involved a different assessment task.
5. In short, it was not necessary for the Tribunal to speculate on what the outcome might have been, had a different set of circumstances applied. In this case, the determination of the Tribunal was based on the findings of fact and the evidence, as it stood at the date of hearing and, to a lesser extent, on the Board's concession that a reprimand alone would satisfy the requirement that the determination protect the public and uphold the profession's reputation.
6. Both in written and oral submissions Mr Tehan submitted that the Tribunal find the respondent now eligible for reregistration, albeit with the condition that the respondent undertake a specified period of supervised practice by a senior practitioner in accordance with National Law, section 196(2)(b)(ii).
7. The Tribunal accepts that the evidence relating to the respondent's conduct since July 2014; the extent to which the respondent has achieved rehabilitation; the extent of any assessed risk to the community; the respondent's participation in the current treatment regime; the extended period over which he has remained abstinent from drug abuse; and the evidence of genuine remorse are factors, which in combination, support the Tribunal's decision to reprimand the respondent, without also requiring a period of suspension or cancellation.
8. The Tribunal also accepts that re-registration should be subject to conditions. In this regard, the Tribunal formed the view that, despite his commendable progress, where, as in this case, the respondent continues to present with symptoms of depression and anxiety and has not undergone assessment by a psychiatric expert of both his mental state and treatment requirements, the protection of the public and the reputation of the profession require that conditions relating to independent psychiatric assessment and supervision with restricted access to controlled drugs be imposed as a prerequisite to reregistration.
9. In discussion of these conditions, Mr Tehan indicated on behalf of the respondent that the conditions imposed in an earlier proceeding before VCAT, Pharmacy Board of Australia v Kham,[2] ought be imposed.
10. Kham, however, represents a more serious example of professional misconduct. Among other things, the pharmacist was found to have been involved in trafficking a drug of dependence. In Kham the Tribunal recommended conditions that required the pharmacist: to undergo independent psychiatric assessment should he apply for registration; and if registration was granted, practice under supervision for a minimum of one year without direct access to any controlled drugs; and to undertake continuing professional development in the field of ethics and/or responsible practice management.
11. It is the view of the Tribunal that a condition which requires a minimum of nine months of supervised practice, without direct access to controlled drugs as defined by Schedule 8 to the Drugs, Poisons and Controlled Substances Act, acknowledges the difference between the circumstances of this case and those found in Kham's case, whilst preserving the Board's discretion to impose a longer period of supervision and restriction on direct access to controlled drugs, having first considered the content of an independent psychiatric assessment.
12. However, despite the further concession made by Mr Tehan, the Tribunal did not also form the view that a condition that the respondent undertake professional development in the field of ethics and/or responsible practice management was also warranted where, as in this case, the respondent presents as someone who is acutely aware of the seriousness of the conduct in which he engaged and of his responsibilities as a pharmacist, should he be granted registration again.
13. Accordingly, it is the decision of the Tribunal that:
    1. The respondent is reprimanded.
    2. Should the respondent re-apply to the Pharmacy Board of Australia for registration as a pharmacist:
       1. In order to satisfy the Board that there is no impairment of the respondent's capacity and fitness to practice, and at the respondent's own expense, he be required to undergo independent psychiatric assessment by a practitioner nominated by the Board.
       2. Any registration granted contain a condition that requires the respondent to undertake a minimum of nine months of supervised practice without direct access to controlled drugs, the latter as defined by Schedule 8 to the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[1] See, for example, Stirling v Legal Services Commissioner [2013] VSCA 374.

[2] Pharmacy Board of Australia v Kham (Occupational and Business Regulation [2012] VCAT 1316 (29 August 2012)