Gorgy v Dean
[2000] NSWDC 1
•12 January 2001
Gorgy v Dean [2000] NSWDC 1
Talat Gorgy v Ian Dean
12 January 2001
The pharmacist appealed against a decision to remove his name from the Register.* The appellant had been sentenced to twelve months in prison after conviction for the offences under the Commonwealth Crimes Act. The Court considered whether, having been convicted for the offences and served a term in prison, the public would be protected by allowing the appellant to continue to practise. The evidence before the appeal court was only marginally different to the evidence which had been before the Board.
Held:
The profession and the public would be harmed if the appellant was allowed at this point of time to continue to practise pharmacy.
It was only 18 months since his release from prison which was not a long period of time in which to build up a store of good character and professionalism sufficient to overcome his admitted serious breaches of the law and his professional obligations.
The protection of the public and the requirements of the profession made it necessary that he not be allowed to practice for a period of time which, taking into account his sentence already served, should be twelve months.
The order removing his name from the register was quashed.
The appellant was severely reprimanded and suspended from practise for 12 months.
He was ordered not to have a pecuniary interest in a pharmacy or be an approved pharmacist under the National Health Act without the approval of the Pharmacy Board. For a period of 5 years he was not to be involved in the preparation, authorisation or certification of any claim for pharmaceutical benefits without prior approval of the Pharmacy Board. During this period he was to notify the Registrar of the Pharmacy Board every three months of his employment details.
He was ordered to undertake continuing education as directed by the Pharmacy Board and had a number of conditions placed upon his practice.
*(Editorial note: for the Board’s determination see Dean v Gorgy [2000] NSWPB 1).
JUDGE WILLIAMS:
This is an appeal under S.22 of the Pharmacy Act against a decision of the Pharmacy Board on 12 April, 2000 to remove the appellant’s name from the Register of Pharmacists on NSW. Subsection (2) of S.22 provides that any appeal is to be made in accordance with the rules of Court and will be in the nature of a new hearing at which new evidence may be given. In that sense this Court stands in the place of the Board and is required to deal with the appellant in accordance with the complaint made and the provisions of the Pharmacy Act governing what may happen to a person once a complaint is proved.
In this appeal it is not contested that the appellant has been convicted in New South Wales of offences under S.29B of the Commonwealth Crimes Act, 1914 or that he has been guilty of professional misconduct within the meaning of S.19A(a) and (g) of the Pharmacy Act. The only matter in contention is the order made by the Board in consequence of its findings. In that regard the Board and this Court is governed by S.20 of the Pharmacy Act, subsection (1) of which provides a number of of ways in which a person can be dealt with on the finding of a complaint being proved. The most significant order the Board can make is that a person’s name be removed from the register. However, subsection (3) of S.20 requires the Board not to suspend a person’s registration or remove a person’s name from the Register for having committed an offence if, having regard to the nature of the offence of the circumstances under which if was committed, the Board is of the opinion that it does not render the person unfit in the public interest to be registered as a pharmacist.
By consent the parties before me tendered the findings of the Pharmacy Board, the transcript of proceedings before the Pharmacy Board, the complaint to the Pharmacy Board, details of the appellant’s professional standing and the matters of which he was convicted, details of some of the approximately 2000 prescriptions altered by the appellant during the course of his fraudulent activities against the Commonwealth, a statement of facts in regard to a number of National Health Act charges taken into account on sentence, the remarks of His Honour Judge Davidson and a peer review report prepared for the Pharmacy Board by another qualified pharmacist. Also tendered before me were a number of references that had been tendered to the Pharmacy Board as well as some references which had been updated to reflect some of the concerns expressed by the Pharmacy Board in regard to whether or not the referees were aware of the convictions of and disciplinary proceedings against the appellant. I have also heard evidence from the Reverend Leonard Kingston, Mr. Nabil Mikhal. Mr. Neville Fanous and Mr. Michael Melick, as well as the appellant.
Legal Background
In Skinner v. Beaumont (1974) 2 NSWLR pg 106 at 113, Samuels JA who was also one of the judges in the unreported decision of Verma v. McGregor, Court of Appeal 10.2.89, said, after referring to a number of decisions where the Courts had held that the power was being exercised to discipline professional persons by regulatory authorities was not a punitive power but a protective one, protective of those members of the public who require protection and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege. This is so notwithstanding that the exercise of such a power may involve a great deprivation of the person disciplined. (see NSW Bar Association v. Evatt and Klein v. NSW Bar Association). In this context Samuels JA said at page 113:
“ The protective purpose should inform and regulate the power to disqualify, either by suspension or disbarment or removal from the Register as the case may be ....”
His Honour went on to say that that principle was given statutory recognition in S.29(2) of the Medical Pracitioner’s Act, which is in similar terms to S.20(3) of the Pharmacy Act, that is, that the Board is not to suspend a person’s registration or remove their name from the Register if the offence or the circumstances in which it was committed allows the Board to form the opinion that it does not render the person unfit in the public interest to be registered as a pharmacist.
Whilst it is true that the purpose of the proceedings before the Board and before this Court is protective of both the public and the professional, it seems somewhat of a sophistry to say that removing a person’s name from a register is not in fact a punishment. Even the High Court acknowledged that such a move could involve a great deprivation to the person disciplined and despite suggestion to the contrary both Samuels JA and Hutley JA in Skinner’s case make a number of references to the penalty being too severe in the circumstances. At page 112, Samuel JA said:
“The appellant bears of course the usual appellant onus of persuading this Court that the penalty is too severe. It is right to give weight to the fact that the Tribunal is an expert body specifically charged with the task of policing its own profession.”
Hutley JA said of the public interest involved in such decisions that it was the public interest at the time when the tribunal makes its decision and for the purposes of that case he confined the public to the people of Windsor and its surrounding countryside. He also said at page 109:
“The tribunal cannot erect the maintenance of professional ethics into a controlling principle. The requirements that the public interest be considered means that wider interests than those of the medical profession have to be given weight.”
He also said earlier at page 109:
“One public interest requires that competent doctors who are willing to practice should be allowed to do so unless there are countervailing public interests. The likelihood of repetition of the offence would be the most usual countervailing public interest.”
In some respects the attitude of the Court of Appeal as expressed as to professional misconduct in Skinner’s case has in my view changed and that change is clearly expressed in the case of Verma v. McGregor. That case is perhaps important because Samuels JA although not giving the judgment in that matter was the senior judge in a court consisting of himself, McHugh JA and Clarke JA. In Verma’s case the appellant was a doctor who had been struck off for defrauding the Commonwealth in a sum of $228.00 over a period of 21/2 years, although I am also informed that these were representative charges. Clarke JA who gave the judgment in which other two judges concurred, referred to what Hutley JA had said in Skinner v. Beaumont in regard to the public interest requiring competent doctors who are willing to practice being allowed to do so unless there were countervailing public interests and that the likelihood of repetition of the offence would be the most usual countervailing public interest. Clarke JA said that repetition of misconduct is a relevant consideration but it is not the only consideration. He said much would depend on the nature of the misconduct, whether it demonstrates a failure to appreciate basic standards demanded of a professional person and whether there is a need to bring home to members of the medical profession an awareness of the fact that such misconduct by a practitioner will not be tolerated. Further, Clarke JA said that the Court must necessarily give weight to the fact that the tribunal is an expert body specifically charged with the task of policing its own profession.
Also of relevance to the case before me is the decision of Desai v. Rogers, NSW Court of Appeal, unreported, 29.7.81, referred to by Clarke JA in Verma’s case. In Desai’s case the court made reference to the nature of modern medical practice, particularly in regard to medical benefit schemes and said:
“Medical benefit schemes depend upon the integrity of medical practitioners. Without that integrity, the schemes must fail or become a burden upon the community. Moreover, it is critical that members of the medical profession should be aware of the need of the importance of that integrity. The conviction of the appellant for 27 offences involving fraudulent intent necessarily involved her having adopted a fraudulent course which contradicted this most basic and obvious requirement.”
The Court concluded in Verma’s case that even if it be accepted that the appellant was unlikely to transgress again, the nature and gravity of his misconduct was such that the public interest was best served by an order removing his name from the register. In other words, the Court found that the behaviour of the medical pracitioner in Verma was of itself of such a nature that in the public interest the practitioner’s name should be removed from the register, that is, a fraud on the Commonwealth Government of a very small amount but over a period of 2 ½ years. The Court in Verma had other reservations about the practitioner in particular whether or not he would be unlikely to offend again in the future and that was on the basis that before the tribunal he continued to maintain that he was innocent and the victim of a system of law and the fraud of his previous secretary. In other words, he had failed to recognise that his conduct involved significant departures from proper standards.
I was also referred to the case of Katsogiannis v. Dean, a decision by Graham DCJ of 21 June, 1993 [1993] NSWDC1 in respect to the removal of Mr. Katsogiannis’ name from the register of pharmacists. The facts in that case were far more serious than the facts before me, in that the sum of approximately $195,000.00 was defrauded from the Commonwealth between 1988 and 1990. Additionally, after being charged with offences the appellant in that case continued to offend albeit on a smaller scale for a period of about three months. In that case the fraud involved some 2000 items submitted to the Commonwealth in respect of pharmaceutical benefits. His Honour found the appellant to be an unsatisfactory witness on two areas of his evidence and had deliberately lied to the Court in respect of another area of his evidence so obviously those matters were of considerable concern to the Court in that case. Additionally, despite being recommended by a psychiatrist to undertake appropriate counselling the appellant had declined to do so. After referring to the protective or disciplinary aspect of the jurisdiction, His Honour made some remarks about the nature of Pharmaceutical Benefit Schemes which I would adopt. His Honour said:
“Pharmaceutical Benefits Schemes clearly depend for their integrity upon the integrity of pharmacists, just as medical benefit schemes depend upon the integrity of medical practitioners. Without that integrity schemes such as Pharmaceutical Benefits Schemes must fail or become a serious financial burden upon the community. Members of the pharmacy profession must be aware that they have a relationship not only with the person for whom they fill prescriptions but also with the general community through the substantial degree of public funding which is involved in the practice of pharmacy. They have obligations not only to the public purse and to the community at large but obligations of honesty and integrity in the conduct of the financial side of their pharmacy practices, the fulfilment of which is vital to the standing in which members of that profession are held in the community. In other words, pharmacists who abuse the system financially not only bring their very profession into disrepute in the eyes of the members of the public. Confidence in the profession of pharmacy is vital to its standing in the community; it is vital in the public interest.”
Again, in that case His Honour found that, apart from anything else, the nature of the offending for which Mr. Katsogiannis had been convicted was such that of itself he could not be sure of the opinion that the offences did not render the appellant unfit in the publc interest to be registered as a pharmacist. Additionally, His Honour also found that the other grounds of complaint against that pharmacist, namely of improper and unethical conduct and the fact that he was not of good character, were also sufficient of themselves to require his removal from the Register.
I was also referred to the case of Law Society of NSW v. Foreman (1994) 43NSWLR at 408 and in particular to what was said by Mahoney JA at page 444. Whilst some of the remarks I was referred to are perhaps peculiarly referrable to the legal profession, nonetheless what His Honour said at point F on that page is, I think, relevant in the present case. He said:
“It is also, I think, relevant for the court to take into account the effect which its order will have upon the understanding , in the profession and amongst the public, of the standard of behaviour required of solicitors. The Court will, no doubt, where appropriate, articulate the standards required and that they are high. However, the Court must, I think, also take into account the effect upon what is said of, for example, a decision to allow a solicitor guilty of a serious infringment of those standards to continue to practice. The Court may also have regard to whether, in the light of the offence in question, the solicitor can establish and maintain the kind of relationship which must exist between solicitors.”
In this case, of course, there is not so much a question of the pharmacist’s relationship with other pharmacists. Although that is a factor in regard to professional inter-relationships, there is also the additional factor of the profession’s relationship with the organs of government, such as the Health Insurance Commission. More important is the pharmacist’s relationship with his patients and whether in the light of the offence and behaviour in question the pharmacist can establish and maintain the kind of relationship which must exist between pharmacists and their patients on an objective basis. It is also clearly important to take into account of the effect on the general public of a decision to allow a pharmacist guilty of a serious infringment of the standards of pharmacy to continue to practice.
Counsel for the Board also referred me to a case of Health Care Complaints Commission v. Litchfield, 41 NSWLR 637 and in particular a reference to what Walsh JA said in Ex Parte Tziniolis (1966) 67 SR(NSW) 448 at 461 which was as follows:
“Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiences in his conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.”
The Court in Litchfield said in regard to that quote that disciplinary proceedings against members of a profession were intended to maintain proper ethical and professional standards primarily for the protection of the public but also for the protection of the profession. Whether or not reformations of character and of behaviour are exceptional or unexceptional, I would not be prepared to say. It would all depend on the particular circumstances of a particular case but clearly where a serious offence has been committed and serious deficiences of conduct have occurred in a professional sense, an appellant is required to show clear proof that he is now a different person and is likely to remain so. Litchfield’s case concerned inappropriate conduct of a sexual nature by a doctor and in that sense is factually diverse from the matter that I have to deal with. In Zaidi v. Health Care Complaints Commission, [1998] NSWSC 335, the court adopted the proposition that an appellant had an onus of proving to the tribunal’s satisfaction his present fitness to practice on solid and substantial grounds and in the most recent case of Health Care Complaints Commission v. Beck, [1999] NSWCA 236, the court in that case said:
“While the District Court was entitled and indeed bound to form its own conclusions on the issues on which the parties remained in dispute, it was not entitled to disregard the opinion of the Board on matters which the parties did not seek to relitigate in the District Court or on matters on which the Board had specialist knowledge, such as the standards applicable to pharmacists and the practice of pharmacy.”
The Appellant’s History
The Appellant is aged 46 and obtained his qualificiations in pharmacy from a university in Egypt in 1979. He arrived in Australia in 1982 and successfully qualified as a pharmacist in NSW in July, 1986. Between 1986 and 1990 he worked as a locum at various pharmacies until he purchased in March, 1990 a pharmacy in Narellan and became a sole proprietor. As sole proprietor of this pharmacy he became entitled to apply for and did in fact receive an approval number from the Commonwealth Government in regard to the provision of pharmaceutical benefits. Four months after he commenced practice as a sole pharmacist he began the process of defrauding the Commonwealth which continued from 1 June, 1990 to 17 September, 1991. Indeed, his offending occurred for a short time even after he became aware that he was subject to investigation. Due to the nature of the appellant’s offending, the matter took some considerable time to investigate and prepare charges and it was not until July, 1997 that his trial was commenced before Judge Davidson in the District Court. That trial took some eight months and he was sentenced on 17 April, 1998 to imprisonment for a term of two years with a release after twelve months under a bond to be of good behviour until 16 April, 2000. The appellant appealed against his conviction and sentence but on legal grounds this appeal was withdrawn in November, 1998 and shortly thereafter he sold the pharmacy at Narellan because the Commonwealth was threatening to withdraw his approval number. In fact now the appellant has no approval number and cannot obtain one until he becomes the owner of another pharmacy. On 16 April, 1999 he was released from prison and on 12 May, 1999 a complaint was lodged with the Pharmacy Board, the hearing of which took place on 24 January, 2000 and findings and order for deregistration were made on 12 April, 2000.
The complaint dated 26 May, 1999 was in respect of two matters. Firstly, that he had been convicted in NSW of offences under S.29D of the Commonwealth Crimes Act, 1914, which related to 30 counts of defrauding the Commonwealth between 1 June, 1990 and 17 September, 1991 and the second matter was that he was guilty of professional misconduct within the meaning of S.19A(a) of the Pharmacy Act, in that during the period 1 June, 1990 until 17 September, 1991 he had engaged in conduct that demonstrated a lack of adequate knowledge, experience, judgment or care in the practice of pharmacy and/or other improper or unethical conduct relating to the practice of pharmacy. The appellant conceded those complaints but sought that the Board not remove his name from the Register.
The Criminal Proceedings
At this point I should refer to the findings of His Honour Judge Davidson on sentence in regard to the facts because the situation at trial was that the appellant had been charged with 37 counts, one of which was taken away from the jury, and he was found not guilty of 6, leaving verdicts of guilty and convictions for 30 charges. I will also refer to the Board’s summary of the offending behaviour.
His Honour found beyond reasonable doubt that where a doctor’s prescription was the subject matter of the relevant false information, one or more material matters had been added to it or altered in the prescription after it had left the doctor’s surgery. Those alterations were either made by the appellant or alternatively they were so obvious to him as a practising pharmacist that he must have known that the document was false to the extent that an addition or alteration had been made to it when it was lodged to support the relevant claim for payment. His Honour found that the appellant was instrumental in making claims which were materially different from that which had been prescribed for medication which differed in terms of its form, quantity, strength or other material matters from what had been prescribed by the doctor.
His Honour also found that repeat authorisations had been added to prescriptions where they had not been authorised and additional repeat authorisations had been added to prescriptions where repeats had been authorised and that in some instances the appellant had mimicked the signature of the patient on the document in question indicating a receipt of medication when none had been supplied. His Honour also found that there were cases in which he had obtained from customers at his pharmacy their signatures to documents, principally repeat authorisations, where no such medication had been supplied in accordance with that signature, he having persuaded the customer to accept non-claimable goods in lieu. As I indicated earlier in this judgment, there were some offences under the National Health Act that were taken into account involving a sum of approximately $10,000.00. His Honour made a reparation order to include both the matters the subject of the indictment which totalled some $27, 091.49 and the matters under the National Health Act which including interest, totalled some $12,288.88, being a total of $39,380.37 of which at the time of judgment the appellant had repaid the sum of $23,910.89. In fact now the total amount defrauded has been repaid by the appellant.
One of the reasons why His Honour decided to impose a sentence of imprisonment, apart from other lesser penalties, is set out in His Honour’s judgment at page 7 and 8. His Honour said:
“I regard the factor of quantum, irrespective of any inference which may drawn from section 17(b), as a very significant part of the objective circumstances in any case of proven fraud when the question of sentence is to be determined. It is not, however, the only factor which is to be considered. Here, as it contended by the Crown, there are a number of other highly relevant factors. Firstly there is the fact that in becoming an approved pharmacist under the scheme and making claims in accordance with it, you occupied a position analogous to a position of trust. It seems to me to be perfectly clear that if schemes in the publc interest such as these are to be successfully administered for the benefit of the community as a whole, the Commonwealth must of necessity place its trust in the persons who are likely to benefit commercially from them as you were as the approved pharmacist at Narellan making these claims.
In this context I also accept the submission made on behalf of the Commonwealth that schemes of this sort are so detailed in the way in which they are administered and involve so many instances of claims and payments for claims that it is quite impossible to institute a completely secure system for their oversight. If this were to be attempted then it would simply operate as a clog on the system. Of necessity therefore persons placed as you were, that is to say making a claim on the Comonwealth for payment of public monies which was for your benefit as well as of course for the benefit of your customers, are in a highly responsible position of trust.
I also take into consideration that the Pharmaceutical Benefits Scheme was instituted for the benefit of the community at large and it is a circumstance of aggravation, in my view , that you should have taken advantage of your position in relation to that scheme to further your private interests beyond the bounds of honesty and legality.”
His Honour also said at page 10, which may be a relevant consideration in the decision that I am required to make, as follows:
“It is put to me, and it is not challenged by the Crown as I understand it, that it is highly likely that the Pharmacy Board of this state will visit upon you serious consequences as a result of these convictions. It is also put to me that there are likely repercussions from the Health Insurance Commission pursuant to S.133 of the National Health Act in that your approval as a pharmacist for the purposes of the Pharmaceutical Benefits Scheme is likely to be, at the very least, suspended. Again none of this, as I understand it, is in dispute and I propose to take those matters into consideration in dealing with you by way of sentence in respect of the matters of which you have been convicted by the jury.”
The Board’s Proceedings
The Pharmacy Board at page 2 of its reasons for decision, detailed the incidents of fraud of the appellant as follows:
“It is conceded by the pharmacist that he varied approximately 2000 prescriptions received in the pharmacy in the following ways:
He changed the form of medication on prescriptions which did not attract a benefit by substituting a medication which did attact a benefit.
He provided customers with non-claimable items in exchange for prescriptions which he did not dispense but which attracted a benefit.
He added to repeats which had been authorised by a medical practitioner.
On occasion when no repeats had been authorised by the medical practitioner, he included repeats.
He altered the strengths of medications noted on the prescriptions, eg by addition of the word “forte” to “Panadeine”.
He changed the name or form of some medications to receive a benefit, eg “Rotahaler” was changed for “Rotacaps”.
He altered the quantity of medication as shown on the prescription.
He altered the names of patients for which medication had been prescribed in order to obtain a benefit.
In relation to these repeats, he altered the date of the repeat authorisation to facilitate benefits.
He mimicked patients’ signatures on some prescriptions.”
The Board sought and received an opinion from another qualified pharmacist as to the appellant’s behaviour. This report was provided by Mrs. Jennifer Nelson on 30 October 1999. She had available to her a list of the charges, a statement of admissions by the pharmacist, a statement of facts of the National Health Charges, the sentencing remarks of Judge Davidson and the complaint made to the Pharmacy Board. Amongst the other things her report covers her reaction to the various aspects of the complaint. At page 1 of her report she says that submitting claims to the Health Insurance Commission involves an extensive amount of time and effort ensuring that the information is correct and complete. Signatures, addresses, dates and entitlement numbers on each prescription are necessary to ensure payment from the Health Insurance Commission. This is common practice in the profession and the government places a great amount of trust in those pharmacists responsible for these claims. To submit prescriptions that deviate from the laws governing the Pharmaceutical Benefits Scheme would be seen as fraudulent and dishonest. The behaviour is unacceptable and it would invite the disapproval of the general body of reputable and competent colleagues. She then commented in respect of the additions and alterations to prescription items and said as follows:
“Forgery by the patient not the pharmacist is only seen on rare occasions. To interfere with a general practitioner’s prescription in whatever way, is fraudulent. Only in recent years had a pharmacist been given the right to substitute equivalent brands without prior authorisation from the doctor.”
Of the submitting of such claims for payment, she says:
“All pharmacists in charge of submitting claims to the Health Insurance Commission are aware of the correct standards and procedures. This is part of the everyday dispensing practices and is learnt early on from the training gained by the post-graduate course or in this case the 2000 hours which form part of the APEC examination.”
In regard to the supply of non-claimable goods to customers in exchange for prescriptions and mimicking customer’s signatures she said:
“A pharmacist is seen by society to be a respected professional that is a respected part of the health system. To take financial advantage of the Pharmaceutical Benefits Scheme is beyond the bounds of honesty and legality and is why this behaviour draws my severe disapproval.”
Mrs. Nelson concluded that:
“His knowledge and experience in pharmacy practice seems to be adequate because of his extensive training from the APEC examination and the four years as a pharmacist prior to purchasing the Narellan pharmacy. His judgment and level of care as proprietor is well below the standards of his peers and I and the body of pharmacists of good repute and competence strongly disapprove of his professional and ethical behaviour.”
The Board in its decision was also concerned about what it felt was a reluctance on the part of the appellant to fully accept the consequences of his criminal behaviour. At page 3 of the decision it said: “Initially Mr. Gorgy sought to explain his conduct in terms of benefit to the public. However, under cross-examination, Mr Gorgy responded that his conduct had been driven by private interest”, and there followed a quote from the transcript at page 41. In a sense the exerpt quoted in the Board’s decision is somewhat unfair to the appellant. I note that at page 29 in examination in chief the appellant admitted that his offending had caused serious disgrace to his chosen profession and himself. At page 31 he acknowledged that the offences were offences of dishonesty and that he had betrayed the trust placed in him by the Commonwealth Government in respect to his administration of the Pharmaceutical Benefits Scheme. At page 32 in chief he was asked in effect why he had done what he did and his response was:
A. “Mainly to keep the customer happy. That was the main reason and gain an edge of competition.
Q. And to gain something yourself?
A. Yes.”
In evidence before me the appellant indicated again that one reason why he had committed these offences was because he alleged other pharmacies within the area were unhappy with his presence and he felt a need to overcome anything resulting from that. He also said at the bottom of page 32 of the Board transcript that he accepted that his conduct could never be justified and the consequences were well known to him. He acknowledged in cross-examination that he was aware of the rules and regulation governing the adminstration of the Pharmaceutical Benefits Scheme and in particular how it was claims were made on the Health Insurance Commission in respect of pharmaceutical benefits. It is perhaps relevant to put the transcript in full at page 41 that the Board relied on because, with respect, it does convey a somewhat different picture to that suggested by the Board. At page 41, line 30, he was asked:
“Q. On occasion you would make a claim for an item which was not on a prescription, wouldn’t you?”
A. Yes.
Q. And you would dispense in accordance with the prescription to the patient, wouldn’t you?
A. Yes.
Q. Therefore there was no benefit to the patient.
A. No, benefit to me only. I do not disagree with that.
Q. Only a benefit to you?
A. Yes.
Q. So to suggest to this Board that your action was motivating to the customer.
A. Some cases the customer did gain the benefit, yes.
Q. Your motivation in submitting these false claims was to further your own interest?
A. Yes. I am the main gain of this interest, if you like to say, yes definitely.
Q. And the reason you did it was to further your own interest?
A. Yes, yes. I am just telling a story. That doesn’t mean I am saying I didn’t get the benefit or not. I am just telling the full story, that ‘s all. I’m still fully responsible for what I have done and was wrong and was dishonest and I should not do it.
Q. What was wrong about it, Mr. Gorgy in your view?
A. Getting something I am not entitled to, it is as simple as that.
Q. You knew it was illegal to submit a false claim, didn’t you?
A. Yes.
Q. You knew that when you submitted the claim?
A. Yes, that is why I have been convicted.
Q. That is why you’ve been convicted?
A. Yes it was in the court, it was a position of trust and false claim, knowing it was false, that is the main thing.”
In respect of the continuance of submitting false claims after he became aware that the matter was being investigated, Mr. Gorgy gave an explanation at page 44. As I understand that evidence he became aware in April, 1991 that his practice was being investigated and yet still continues to submit false claims in May, June, July, August and September. What I understand to be his reason for continuing to behave in that way over that period of time was that having falsely authorised repeats on prescriptions prior to April, 1991 when people came back after that period of time to have the repeat filled, he would fill it and submit a claim. As he said at line 25:
“A. So, it is already done. The five repeats had been added and he cannot put the five in on one day, unless he use another repeat. So, you cannot stop it all of a sudden in April.”
Further at line 32"
“A. Technically, it is already there. You cannot stop it. The people went home with unauthorised repeats. They can bring it in and take the medication and it is already false repeats.”
In addition to hearing from the appellant I have heard from a number of referees. The first is Mr. Kingston a minister of the Congregational Church who has known the appellant for a number of years and supported him during his time in prison. The second was Mr. Mikhael a registered pharmacist who is the chief pharmacist for the Fairfield Hospital. The third is Mr. Neville Fanous who is the manager of a pharmacy operated by his wife and is responsible for the wages and things of that nature. The fourth is Mr. Malek who is a builder and has been a friend of the apppellant’s for many years.
Mr. Kingston felt that there was no future prospect of the appellant behaving in the way he had behaved in the past, having regard to the significant loss he sustained by virtue of his family breakup and his time in prison. He also felt that from his point of view the appellant was a person worthy to continue in the profession of pharmacy. I am satisfied that Mr. Kingston was fully aware of the nature of the offences committed by the appellant.
Mr Mikhael was also sure that the appellant would never commit such offences again. He said, “ I know him, it’s a gut feeling” and that he would be prepared to have him as a pharmacist and that he was a “pretty good” pharmacist. Whilst not fully aware of all the details of the offending, I am satisfied that he was generally aware of the appellant’s activities but I was somewhat concerned at Mr. Mikhael’s endeavours support the plaintiff in cross-examination. For example, he said that he was aware that the appellant had changed the scripts that had been presented to him but he was not aware in great detail of any changes in medication. He said that he was aware that the appellant had changed the quantity of drugs prescribed but then went on to say that that did not hurt the patient or the Commonwealth. He said that he was not aware that the appellant had added repeats to scripts but then also went on to say that the computer adds repeats automatically. Mr Mikhael, whilst a pharmacist, is employed and has been employed I gather for 27 years as a pharmacist at the Fairfield Hospital and is now in fact the chief pharmacist. The appellant has worked for him at different times and despite having his attention being drawn to the matters referred to above, he said that it had not changed his view about the appellant’s suitability to be a pharmacist, that he was a good pharmacist and a good dispenser.
Mr. Fanous felt that the appellant had energy and talent and that despite the offences that he had committed he had no hesitation in recommending him and would in fact ben prepared to employ him and has in fact employed him in one of the two pharmacies run by his wife. As an employed pharmacist he would not be able to make claims on the Health Insurance Commission. This would be done by Mr. Fanous’ wife.
Mr. Malek gave general character evidence and again was confident that the appellant would never behave in this way again. In cross-examination he was of the view that the offending came about because the appellant was not accepted as the owner of Narellan Pharmacy and the other owners of pharmacies in the area were trying to take his clients and this was something that he had been told by the appellant who thought it would be a good idea to try and rectify the situation and get his clients back and make them happy. He said that the appelllant gave repeats to clients because they were good clients but also agreed that the appellant was motivated to obtain money but that was not his only motivation.
I also have before me the written testimonials that were before the Pharmacy Board together with, in each case, an update where that has been relevant. Some of those written testimonials have been the subject of evidence as well. Those testimonials form Exhibit A on this application.
I am satisfied that these testimonials now include two testimonials from registered pharmacists, one of whom has given evidence, and the makers are aware of the appellant’s convictions and disciplinary proceedings.
Resolutions
in this matter the Board had before it consideration of two complaints. The first complaint was that the appellant had been convicted in NSW of offences and the second complaint was that the appellant had been guilty of professional misconduct. Professional misconduct is defined in S.19A of the Pharmacy Act and includes:
(a) any conduct that demonstrates a lack of adequate
(1) knowledge;
(2) experience;
(3) skill;
(4) judgment; or
(5) care;
by the pharmacist in the practice of pharmacy; and relevantly;
(g) any other improper or unethical conduct of the pharmacist relating to the practice of pharmacy.
The appellant conceded and has always conceded that both complaints had been established; firstly, that he had been convicted in NSW of offences and secondly, that the conduct complained of did amount to professional misconduct. Having satisfied itself that the subject matter of the complaint was proved, the Board under S.20(1) of the Act was entitiled to do a number of things which at the least could amount to a caution or reprimand and at the worst to removal of the person’s name from the Register. Its powers under S.20 could be exercised in respect of either complaint irrespective of the other. That is, the Board could remove the person’s name from the Register in respect of the complaint of professional misconduct alone or, subject to subsection (3) of S.20, in regard to the conviction for offences.
It is only in respect to the conviction for offences that a qualification is put on the Board’s right to suspend the person’s registration or remove their name from the Register. That qualification is in respect of two things. Firstly, having regard to the nature of the offence or secondly, the circumstances under which it was committed, the Board is of the opinion that it, that is the offence or offences, do not render the person unfit in the public interest to be registered as a pharmacist. There is no such qualification to suspension or removal from the Register in respect of a finding of professional misconduct. What the legislation seems to be saying is that it is not permissible to suspend a person’s registration or remove their name from the Register solely in regard to the commission of an offence if the offence is say of a trivial nature or was perhaps committed in circumstances which would justify the Board being of the opinion that the circumstances did not render the person unfit in the public interest to be registered as a pharmacist. At page 3, the Board said that Counsel for the complainant submitted that the proper and appropriate order for the Board to make was that the name of the appellant be removed from the register. The Board then quoted S.20(3) of the Act and said:
“ The question to be answered is whether the Board is of the opinion that Mr. Gorgy is unfit in the public interest to be registered at the present time.”
That question only applies to the complaint in regard to the commission of the offences. In this regard it could not be said that , having regard to the nature of the offences, that they are trivial in any way whatsoever. The lack of their triviality is reflected in the sentence of imprisonment imposed by His Honour Judge Davidson. Further, as was the case before the Board, there is really no evidence before me as to any extenuating circumstances which may have driven the appellant to commit these offences. Thus, in my view, in regard to the complaint relative to the commission of offences in NSW, the Board did not really have to concern itself about being of the opinion that the circumstances of the offending did not render the appellant unfit in the public interest to be registered as a pharmacist. That is, the qualification on suspension or removal was not a qualification that really applies in the circumstances of this appeal. Furthermore, there is no such qualification in regard to how the Board could deal with the other complaint. That is, having found that professional misconduct had ocurred, the Board did not have to worry about coming to an opinion that that misconduct did not render the person unfit in the publc interest to be registered as a pharmacist. In my view the appeal comes down to whether or not, having regard the the subject matter and nature of the two complaints that have been proved, the appropriate result is that the appellant’s name be removed from the Register or some lesser discipline be imposed on him.
The appellant continued to practice in his pahrmacy at Narellan until he was sentenced by Judge Davidson. During this period his approval number was not withdrawn, presumably because he had not yet been convicted. Since his release he has continued to work as an employed pharmacist at different pharmacies. As such, he is not entitled to an approval number. He is now aged 46 and says he has no interest in owning a pharmacy but merely seeks to be allowed to practice as a pharmacist, that being his only professional qualification.
Mr. Dwyer who appears for Mr. Gorgy, urges that he be allowed to practice subject to any or all of the suggested conditions he put before the Court. These were, firstly, that the appellant shall not seek to or become the owner of a pharmacy business nor to have a pecuniary interest direct or indirect in any such business without first notifying the Pharmacy Board of NSW and receiving its approval with or without a period in which the condition is to apply. Secondly, the pharmacist shall not make an application pursuant to S.90 of the National Health Act, 1953 (Cth) for approval for the purpose of supplying pharmacuetical benefits without first notifying and receiving the approval of the Pharmacy Board of NSW, again with or without a period in which the condition is to apply. Thirdly, without prior notification to and the approval of the Pharmacy Board of NSW, the pharmacist shall not in any capacity whatsoever complete, authorise or certify any form of claim upon the Commonwealth of Australia for payment in respect of the supply of pharmaceutical benefits by an approved person pursuant to S.90 of the National Health Act, 1953 (Cth) from the premises where the pharmacist is employed, again with or without a period in which the condition is to apply and fourthly, that for a specified period from the date of the orders the pharmacist shall notify the Registrar of the Pharmacy Board of NSW either monthly or some other period where he is practising as a pharmacist, in what capacity and by whom he is employed.
Mr. Dwyer says that there is no evidence to prove that anything the appellant did was likely to cause harm to any patient. Further, having regard to the cross-examination by Miss Furness, who appeared for the respondent, there is no evidence that there exists any professional continuing education scheme required to be undertaken by pharmacists. It also appears from the evidence that there is a shortage of pharmacists in NSW at the moment caused by the degree course being changed from three years to four years.
Some criticism was made of the appellant that he had not sought professional counselling. The appellant received counselling through his church and one result of that was donation to bowel cancer research of the sum of $100,000.00 in reparation for his offending behaviour. I am not satisfied that this was a case that warranted any professional counselling. There is nothing to suggest that in any way, unlike some ot the other matters I have been referred to both as far as decisions of the Pharmacy Board are concerned and decisions within the court system. There is no suggestion in the Board’s decision in regard to Mr. Gorgy that they considered that counselling was necessary or relevant to their considerations. Further, the Board did not comment as to any questions of continuing professional education nor did the Board consider the public harm issues raised by the appellant’s alteration of prescriptions to change the strength of medications and add repeats.
By implication the matters referred to by the Board at pages 4 and 5 of their decision were of such a serious nature that they felt that the only response that could be made for the protection of the public was to remove the appellant’s name from the Register. In those pages the Board was concerned principally with the dishonest and fraudulent course of conduct of the appellant over a long period of time. They were concerned about the fact that the conduct involved defrauding the Pharmaceutical Benefits Scheme which relies significantly on the honesty of approved pharmacists who benefit commercially from the scheme. The Board felt that they could not be satisfied that here was no likelihood of repetition of the offence, having regard to the fact that there was no explanantion for the commission of the offences other than personal gain and there was no independent or objective evidence of a change in character. The Board concluded that the protection of the public was paramount when considering allegations of professional misconduct and that required deterring the pharmacist in question from re-offending and also deterring others who might be tempted to fall short of the high standards required of them. They concluded that his behaviour was clearly likely to bring the profession of pharmacy into disrepute by breaching the public trust that was placed in him, that trust being necessary for the successful administration of the Pharmaceutical Benefits Scheme which they said was the very core of the successful practice of pharmacy.
There can be no question that both these complaints are extremely serious. The first complaint in regard to the conviction for offences is objectively serious and its seriousness is reflected, as I have already said, in the penalty imposed by HIs Honour Judge Davidson. In some respects, without any further consideration, I would have thought that the offences for which he was convicted would have been sufficient fo themselves to justify removal of his name from the Register. The question to be answered is having been convicted of offences of that nature and served a term of imprisonment in respect to them, would the public be protected by allowing the appellant to continue to practice pharmacy in those circumstances? In other words, what confidence would a member of the public have in a profession of pharmacy knowing that a person convicted of the offences for which the appellant was convicted was allowed to continue to practice pharmacy in those circumstances? In other words, what confidence would a member of the public have in the profession of pharmacy knowing that a person convicted of the offences for which the appellant was convicted was allowed to continue to practice? The evidence before me is perhaps only marginally different to the evidence that was before the Board. I am required to give weight to the Board’s decision, they being the professional body responsible for the governance of pharmacists. By the same token I bear in mind what was said by Samuels JA in Skinner’s case that the protective purpose of bodies such as the Pharmacy Board should inform and regulate the power to disqualify, either by suspension or disbarment or removal from the Register as the case may be and further, that such bodies cannot erect the maintenance of professional ethics into a controlling principle (as was said by Hutley JA in the same case) and that the requirements that the public interest be considered means that wider interests than those of the pharmacy profession have to be given weight.
In this case there are two complaints. The second complaint of professional misconduct essentially relates to the offending which resulted in the convictions giving rise to the first complaint. In that regard what cannot be overlooked is that the appellant’s dishonest behaviour commenced within a few months of him becoming the owner of the Narellan pharmacy. In other words, very shortly after he became able to make claims on the Commonwealth in this own right, he commenced to commit fraud. What also canot be overlooked in my view is that whilst, it may well be that there is no evidence that any patient suffered any harm or was likely to suffer any harm, as a matter of common sense I would have thought that altering prescription to increase the strength of a medication or to alter the quantitiy of medication prescribed or to authorise repeats of medication, where that had not been approved by the medical practitioner who prescribed the medication to begin with, indicates a fundamental disregard for or lack of knowlege of professional responsibilities. I can well understand a pharmacist providing a drug of less strength than prescribed of in less quantity than prescribed but I have significant difficulty in understanding how a pharmacist could, without reference to the medical pracititioner, increase the strength or the amount of the medication or authorise repeats where they had not been authorised by a medical practitioner.
As I have said, the appellant continued to practice as a pharmacist during the period of the investigation from 1991 to 1997. He continued to practice during the course of the trial but did not practice during the twelve months of his imprisonment. He was released from prison on 16 April, 1999 under a recognisance to be of good behaviour until 16 April, 2000. On his release he continued to practice as a pharmacist, albeit in an employed capacity in different areas and different circumstances, both as a pharmacist in a pharmacy and as a pharmacist at a public hospital on a casual basis.
If the only consideration I had to take into account was the appellant himself, having regard to all the circumstances I would be prepared to allow him to practise on a restricted basis, namely that he practise as an employed pharmacist and that he not apply for an approval number under the provisions of the National Health Act, 1953. However, the personal considerations of the appellant are not the only matters that I have to take into account. The Board has found that his conduct was so unprofessional and the offences he committed were so serious that they warranted removal from the Register. That is a matter that I have to take into account. I also have to take into account that an objective member of the public, seeing a person convicted and sentenced to imprisonment for serious offences against the ethics of pharmacy still being allowed to practise in whatever capacity as a pharmacist, may be concerned as to the standing of pharmacy within the community and the community’s ability to place trust in pharmacy professionals. Further, I am not unmindful of the fact that His Honour Judge Davidson in dealing with the appellant in the way that he did, took into account the fact that in all probability he would lose his licence to practice as well as his approval number from the Commonwealth Government.
On a personal level, I think it is unlikely that the appellant will re-offend and, whilst I have some reservations about the objectivity of the two pharmacy professionals who have provided evidence before me, there does not seem to be any suggestion at a professional level that the appellant is otherwise a competent pharmacist. Indeed, Mrs Nelson, who provided the peer review for the Pharmacy Board, said that his knowledge and experience in pharmacy practice seemed to be adequate having regard to his extensive training from the APEC examination and his four years as a pharmacist prior to purchasing the Narellan pharmacy. Despite this I have some disquiet in regard to the matters that I have mentioned whereby the appellant materially altered prescriptions without reference to the prescribing medcial practitioner. Those matters do not, it seems to me, sit well with competence in pharmacy.
In my view, the profession and the public would be harmed if the appellant was allowed at this point of time to continue to practice pharmacy. It is just over eighteen months since he was released from prison, which is not a long period of time in which to build up a store of good character and professionalism sufficient to overcome the serious breaches of the law and his profession that he has admitted to.
Whilst I am required to have regard to the decision of the Board, if the Board has not acted consistently in other cases the value to be placed on the Board’s decision may be somewhat lessened. In this regard I was referred to three former decisions of the Board which are in the following chronological order; the 1997 matter of Beck [1997] NSWPB 1, the 1997 matter of Psaltis [1998] NSWPB 2 and the 1999 matter of Wilson [1999] NSWPB 10.
In Beck, the pharmacist was struck off and this matter became the subject of the case of Beck in the Court of Appeal that I have already referred to earlier in my decision. The details of the complaint in that matter are that between 1993 and 1994 the pharmacist prescribed a number of drugs of addiction contrary to the various rules and regulations and also that he supplied restricted substances. As this matter may still be in the process of being dealt with in this Court, all I will note is that having regard to those serious matters and convictions for offences the Board ordered that his name be removed from the Register.
In the matter of Psaltis, the pharmacist had been convicted of an offence under S.29D Commonwealth Crimes Act, in that he submitted a claim for payment for pharmaceutical benefits to the Health Insurance Commission which included prescriptions and repeat authorisations which had not been dispensed to the patient named therein and that further, he levied charges on the Health Insurance Commission for patients who had died, that he had requested staff at the pharmacy to sign patient’s names on prescriptions or repeat authorisations and that he had exchanged prescriptions for goods, cash or credit on patients’ accounts. The Board found that his behaviour amounted to a severe breach of trust and unethical behaviour and as such required measures that reflected the seriousness of his conduct not only in relation to his fraudulent behaviour but also in relation to the position in which he placed his employees. Some of these employees were graduates in training who should have been able to expect and to obtain guidance and supervision to a high standard from a man with twenty-five years experience as a pharmacist. The Board was not confident that the interests of the public would be protected without subjecting him to a period of suspension. The Board reprimanded him and suspended him for three months and placed conditions on his continuing professional education each year for the next five years.
The third case is the matter of Wilson. In this matter there were two complaints, one in regard to a demonstrated lack of adequate knowledge, skill and judgment in the practice of pharmacy and the second was that the was guilty of improper or unethical conduct relating to the practice of pharmacy in three areas, namely making false claims on the Health Insurance Commission for items not supplied; secondly, for failing to record in any form, either on the computer or in any approved prescription book, the supply of a scheduled item; and thirdly, signing prescriptions or having members of his staff sign for prescriptions on behalf of identified patients without their knowledge or consent. He pleaded guilty to twenty-four offences contrary to the provisions of S.103(5) of the National Health Act, 1953 at the Gosford Local Court on 10 November, 1995. The court found the charges proved but dimissed the charges under S.19D of the Commonwealth Crimes Act.
The Board expressed concern that a number of persons, many of whom were young students who may have been considering a career in pharmacy, were exposed to the illegal actions of the pharmacist. They also took into account the severity and the extent of the complaints particularised as well as the fact that the Health Insurance Commission had not sought to take any further action against the pharmacist and had continued his National Health Act approved pharmacist status in his three pharmacies. The Board accepted that the pharmacist was well aware of his legal, ethical and moral responsibilities with regard to these matters and that he knowingly took part in the scheme for the monetary benefit of his clients. The Board found that he had been found guilty of an offence under the Crimes Act (Cth), that he had been guilty of professional misconduct, that he had engaged in conduct that would incur the strong disapproval of professional peers of good repute and competence and had engaged in conduct that would bring the profession of pharmacy into disrepute. However, taking into account the length of time it had taken for the complaint to be brought before the Board and having regard to the present practice of the pharmacist, made the following orders: that he was to be cautioned and severely reprimanded, fined $2,750.00 and had conditions place on his licence, the details of which are not really relevant to the matters that I have to consider.
Each of these matters is, unfortunately, different to the other and different to the facts that I am considering in the case of Mr. Gorgy. The offences involved appear in some instances to be less serious and in other instances perhaps more serious that the matter before me. However, there are other aspects of each of these matters that makes it understandable why the Board acted in the way that it did in the particular case. To go into these matters further than that would it my view be unproductive in all the circumstances although I note that as far as I am told none of those persons served a prison sentence.
I understand that the removal of the appellant’s name from the Register will operate as a serious financial imposition on him. In all probability, I think that the imposition will go further than a financial one and will obviously be a significant psychological set back for him. However, in all the circumstances, bearing in mind the purpose of this legislation which is to protect the public both in regard to the practice of pharmacy and in regard to the maintenance of professional and eithical standards, the appellant has not yet reached the stage where allowing him to continue to practice is unlikely to cause public or professional disquiet. It is not as if the appellant had built up a large store of professionalism over many years and these matters were a temporary fall from grace. In my view, the protection of the public and the requirements of the profession make it necessary that he not be allowed to practice for a period of time. Taking account of the sentence already received and served, that period in my view is 12 months. Thereafter he should be allowed to practice but only on a limited basis.
The orders that I make therefore are as follows:
The order made by the Pharmacy Board of NSW removing the appellant’s name from the Register of pharmacists is quashed.
The appellant is severely reprimanded.
The appellant’s registration is suspended for a period of twelve months from today pursuant to S.20(1)(b) of the Pharmacy Act.
During the period of suspension the appellant is to undertake such continuing Professional Education as may be directed by the Pharmacy Board, not exceeding thirty hours.
The appellant is to have the following conditions placed on his registration as a pharmacist in regard to his practising pharmacy:
(a) the appellant shall not seek to or become the owner of a pharmacy business nor to have a pecuniary interest direct or indirect in any such business without first notifying the Pharmacy Board of NSW and receiving its approval.
(b) the appellant shall not make an application pursuant to S.90 of the National Health Act, 1953 (Cth) for approval for the purpose of supplying pharmaceutical benefits without first notifying and receiving the approval of the Pharmacy Board of NSW.
(c) the appellant in any capacity whatsoever shall not, for a period of five years, without prior notification to and the approval of the Pharmacy Board of NSW, complete, authorise or certify any form of claim upon the Commonwealth of Australia for payment in respect of the supply of pharmaceutical benefits by an approved person pursuant to S.90 of the National Health Act, 1953 (Cth) from the premises where the pharmacist is employed.
(d) the appellant shall, for a period of five years, notify the Registrar of the Pharmacy Board of NSW every three months, where he is practising as a pharmacist, in what capacity and by whom he is employed.
The appellant to pay the respondent’s costs.
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