Australia: Pharmacist's appeal was a - cause for real concern

The New South Wales Civil and Administrative Tribunal – Occupational Division recently dismissed an appeal by a Pharmacist to set aside an earlier Order to cancel his registration in light of findings of professional misconduct and unprofessional conduct.

In 2013 pharmacist Jonathan Fryar was prosecuted by the Health Care Complaints Commission and found guilty of unsatisfactory professional conduct and professional misconduct. His registration was cancelled. Recently, the New South Wales Civil and Administrative Tribunal – Occupational Division ("NCAT") considered Mr Fryar's application for review of the Order made by the Pharmacy Tribunal in the matter of Fryar v Health Care Complaints Commission [2015] NSWCATOD 117.

The Complaints and De-registration

The Pharmacy Tribunal considered two sources of complaint in considering the professional conduct of Mr Fryar.

The first complaint related to the supply of prescribed restricted substances in 2005 and 2006. Mr Fryar supplied Dr Kelvin Wong, who has since been struck off the Register of Medical Practitioners, with self-prescribed benzodiazepines, HCG, anabolic steroids, and other restricted substances "...in quantities and for purposes which did not accord with recognised therapeutic standards...".

The basis for the second complaint was conduct in 2010 whereby Mr Fryar dispensed restricted substances to Mr Samual Cohen, operator of the Institute of Hair Regrowth and Beauty. Specifically, Mr Fryar supplied large quantities of preparations which contained an unknown substance (supplied by Mr Cohen) which Mr Cohen then on-sold to his institute clients.

Mr Fryar was found by the Tribunal to be guilty of unsatisfactory professional conduct and professional misconduct. As a result of these findings, the Pharmacy Tribunal made an Order to cancel My Fryar's registration and he was precluded from applying for a review for a period of 18 months.

The Appeal

On 11 November 2014 the non-review period ordered by the Pharmacy Tribunal expired and on 27 January 2015, Mr Fryar filed an Application for Review in NCAT pursuant to the Health Practitioner Regulation National Law (NSW) ("the Act"). The Act allows for the right of review of an Order made against the person who applies for review. In these circumstances, NCAT, as the appropriate review body, conducted an inquiry into the Application and it was open to them to dismiss the Application or make a reinstatement Order. The inquiry into a review Application is to determine the appropriateness, at the time of the review, of the subject Order. It is not a review of the decision to make the Order in the first instance, nor the correctness of any findings of the Tribunal that made the Order.

Mr Fryer, who was self-represented, had the burden to prove that on the balance of probabilities, the previous Order no longer remained appropriate. Mr Fryar made submissions on five (5) grounds in support of his application for reinstatement, as follows:

Good Character – Mr Fryar submitted that "in all aspects of my life I am an honest and giving person of good character", citing his volunteer work and alleged ethical practice in the two years between the second complaint in 2010 and his deregistration in 2012.

Skills and Continuing Education – Despite drawing attention to the academic record of his Masters Degree, Mr Fryar did not undertake any continuing pharmacy education since his deregistration, conceding that he "should have thought to do more pharmacy education...I missed that one".

Mental Health – Mr Fryar sought to rely on the report of an independent psychiatrist, Dr Kathryn Lovrick, which was obtained for the initial Pharmacy Tribunal hearing. Dr Lovrick diagnosed My Fryar as suffering from Generalised Anxiety Disorder and opined that Mr Fryar was fit to practice as a pharmacist. Further, Mr Fryar submitted that he followed the advice of his treating psychiatrist and general practitioner in terms of medication and consultations.

Insight/Remorse – Mr Fryar supplied references who attested to his remorse and his attempts to re-educate himself.

Undertakings – Mr Fryar indicated his willingness to undergo a period of supervised education and submit to an independent psychiatric assessment to give assurance of fitness to practice.

Findings

NCAT considered the submissions made by Mr Fryar in support of his Application. NCAT, however, found Mr Fryar to be an unreliable witness with a lack of insight and complete frankness, which NCAT described as a "cause for real concern". The fact that Mr Fryar had not been proactive in undertaking continuing education that would allow him to be prepared for re-registration was not viewed favourably by NCAT. This inability to take proactive steps towards re-registration was also considered evident in the lack of expert opinion regarding his competency and mental health issue.

Ultimately, NCAT considered that Mr Fryar's application was largely directed towards the adverse impact of his deregistration of his family as opposed to the reasons why he was now suitable for reinstatement of his registration. NCAT was not relevantly satisfied that Mr Fryar was a fit and proper person to be re-registered as a pharmacist.

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