The pharmacist at the centre of a counterfeit sildenafil scandal has again appealed to have his registration reinstated
Mina Attia, the former owner of Shopsmart Wholesale pharmacies across Sydney, had his registration cancelled in December 2016 following revelations he had introduced counterfeit Viagra into the Sydney pharmaceutical market.
While the decision by the NSW Civil and Administrative Tribunal took effect on the date it was handed down – 23 December 2016 – Mr Attia challenged the decision before a principal member of the tribunal, claiming an error had been made by his legal representation that deprived him of the right to appeal.
He then brought his case before the Supreme Court of New South Wales in late February this year, seeking an interlocutory order to have his name reinstated to the register of pharmacists until an appeal of the tribunal’s decision could be made – but his application was dismissed.
Now by an amended summons filed on 24 March 2017, Mr Attia has brought another appeal against the tribunal’s decision to cancel his registration, again before the Supreme Court of New South Wales.
Before Justice Michael Walton, Mr Attia’s counsel argued that the tribunal’s finding of unsatisfactory professional conduct constituted an “error of law”, because the impugned conduct was undertaken by the plaintiff as the office holder of a licenced pharmaceutical wholesaler corporation, and not in the practice of a pharmacy.
Mr Attia also argued that the tribunal had failed to conduct a two-stage process, so as to permit a separate hearing on deciding an appropriate penalty.
Conversely, the HCCC argued that, as a pharmacist, Mr Attia was bound by the PSA’s Code of Conduct, which includes obligations including that pharmacists: must promote and safeguard the interests and welfare of the community; must not purchase, sell or supply any medicinal product where there is a reason to doubt its safety, quality or efficacy; must exercise professional judgement to prevent supply of products likely to constitute an unacceptable hazard; and accept responsibility for their own professional activities.
The HCCC contended that even though it had been six years since the conduct, Mr Attia’s registration should still be cancelled.
“The mere passage of time could not be relied upon to form a view that the misconduct was not going to happen again,” the commission argued.
Justice Walton pointed out that Mr Attia was indeed a registered pharmacist at the time of the impugned conduct, and that his conduct in purchasing the counterfeit Viagra fell “within the scope” of the practice of his profession, as it involved non-clinical judgement or the exercise of care which impacted upon the safe delivery of pharmaceutical products.
Justice Walton also referred to Mr Attia’s own statement to the HCCC that he had exercised his knowledge, skill, judgement and care as a registered pharmacist in making decisions about the counterfeit Viagra.
The “registration process under the National Law is a protective regime in the public interest,” said the judge.
“The conduct by the plaintiff as a practitioner pharmacist, having regard to the findings of the tribunal, demonstrated he lacked one or more of the qualities indispensable to the practice of pharmacy.”
Justice Walton noted that the adoption of a single-stage process in the proceedings did not deny Mr Attia procedural fairness – in fact, at the outset of the proceedings the Tribunal had expressly raised the adoption of a two-stage process, which Mr Attia had refused.
“It is difficult to see how the plaintiff may properly complain of the denial of procedural fairness in the adoption of a single-stage process as being a breach of the “hearing rule” or a failure to provide a reasonable opportunity to be heard,” said the judge.
Justice Walton found both of Mr Attia’s appeals lacked merit, and dismissed them both.