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- Unreported Judgment
Pharmacy Board of Australia v Christie  QCAT 291
Pharmacy Board of Australia
Occupational regulation matters
26 August 2016
Hon J B Thomas, Judicial Member
Ms A Christou
Ms K Kensell
Mr A Petrie
On the papers
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where pharmacist convicted of two charges of stealing as a servant and possession of dangerous drugs – where pharmacist made full admissions and fully cooperated in the investigation and proceedings – where it is alleged and admitted that pharmacist engaged in professional misconduct – where joint submissions as to sanction put before the Tribunal – whether pharmacist’s conduct amounts to professional misconduct – whether parties’ proposed sanction is appropriate in the circumstances – whether a non-publication order should be made
Code of Conduct for Pharmacists
Heath Practitioner Regulation National Law Act 2009 (Qld), s 3, s 138, s 193 and s 196
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Dr Choo-Tian Lee v Medical Board of Australia  QCAT 23, considered
HCCC v Kahli Bard  NSW NMT 15, considered
HCCC v Lau  NSWPHT 2, considered
Pharmacy Board of Australia v Chrenowski  SAHPT 26, considered
Pharmacy Board of Australia v Dougherty  SAHPT 6, considered
REASONS FOR DECISION
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
Jurisdiction and issues
- It will be convenient to refer to the respondent as “the Pharmacist” and to the applicant, the Pharmacy Board of Australia, as “the Board”.
- This is a disciplinary proceeding against the pharmacist.
- The Board started dealing with the relevant complaint concerning the Pharmacist’s behaviour in mid-2013. The present referral to Queensland Civil and Administrative Tribunal (QCAT) was made on 26 October 2015 under s 193(b) of Schedule 1 of the Heath Practitioner Regulation National Law Act 2009 (Qld) (National Law) following a direction by the Health Ombudsman to the Board to continue to deal with the matter under the National Law.
- The Pharmacist’s registration lapsed on 9 January 2014, and there is no subsisting registration. Notwithstanding this, jurisdiction to deal with the present matter is preserved by s 138 of the National Law.
- The Pharmacist has appropriately cooperated with the Board in bringing the matter to a conclusion, and the parties are in agreement as to an appropriate sanction. It is still necessary however for this Tribunal to determine whether a recognised ground for disciplinary action is established, and to be satisfied that the proposed sanction is appropriate.
- The Pharmacist desires a non-publication order with respect to these proceedings, and the Board opposes this.
- It will therefore be necessary first to consider whether a ground for disciplinary action is established, and in particular whether the behaviour of the Pharmacist amounts to unsatisfactory professional performance, unprofessional conduct, and/or professional misconduct. It will then be necessary to determine the appropriateness of the proposed sanction, and whether or not a non-publication order should be made.
- The Pharmacist is a 41 year old man who became a registered pharmacist in 2004, and, except for a period of six months in 2006, maintained that registration until 9 January 2014.
- His misconduct stems from his wrongful acquisition of various controlled, restricted and addictive drugs during a number of periods. His conduct included obtaining them from his employer through deceit, and covering this up in a number of ways, including the creation of fictitious transactions to explain the disappearance of the drugs.
- His conduct first came to light when his employer found drugs in his car and notified the Australian Health Practitioner Regulation Agency (AHPRA).
- The Pharmacist then promptly “self reported” his conduct to AHPRA. On 16 July 2013 he commenced rehabilitation in a hospital where he was an inpatient for 10 days and subsequently received outpatient treatment.
- On 9 January 2014, he withdrew his pending application for renewal of his registration as a pharmacist, and his name was removed from the register.
- He then undertook a course at the University of South Queensland which resulted in his obtaining a Diploma of Teaching by the end of 2014.
- On 13 October 2014, he pleaded guilty in the Magistrates Court to two charges of stealing as a servant and possession of dangerous drugs between April and June 2013. He was ordered to serve two years’ probation. It was further ordered that no conviction be recorded.
- The Pharmacist has a history of drug misuse, including controlled drugs, restricted drugs and other medications, including testosterone and anabolic steroids.
- His misuse of testosterone and anabolic steroids commenced from the age of 16 years.
- His misuse of controlled drugs, mainly morphine, endone, oxycodone and fentanyl included specified periods in September 2009, September 2012 and May 2013.
- Other medications misused by him include amphetamines, ventolin, insulin, growth hormones, stanozolol and nandrolone. He has also self-prescribed anti-depressant medication.
- He was assessed in November 2013 by Dr Jill Reddan as suffering from “recurrent opiate abuse” and as “impaired” by the meaning of that term in the National Law.
- His misconduct reveals a number of undesirable aspects. They include the taking without authority of medicines from the pharmacy, the procuring of restricted drugs without prescriptions, the making of dishonest entries of details under existing and non-existing patient names, and the taking of medicines dishonestly and without prescriptions and without paying for them. The misrecording of controlled drugs is particularly concerning.
- Rehabilitation has been difficult. Following inpatient treatment in the Damascus program, he underwent some outpatient treatment and alcohol and drug dependence treatment. However a hair drug screen on 7 November 2015 detected the presence of controlled or restricted drugs, mainly codeine, oxycodone, ketamine, methylamphetamine, nordiazepam and zolpidem.
- Having completed his Teaching Diploma late in 2014, he obtained employment as a teacher. There is evidence that he is well regarded in this role. He has been employed since February 2015 by Education Queensland on a full time contract basis as a secondary school teacher. The current extension ends November 2016, but it may well be that extensions will be able to be obtained from time to time, and that the continuation of this career is feasible. He enjoys this work.
- Very few actual details however have been provided concerning his employment or performance. Even so the evidence suggests that this is prudent and so far successful attempt at rehabilitation in a field that is different than pharmacy where undesirable temptations would be ever present.
- Both parties agree that the Pharmacist’s conduct:
- Was contrary to the Code of Conduct for Pharmacists, including section 8.4 “Health Records”, section 1.2 “Professional values and qualities”, and section 9.2, which concerns practitioner health and self prescribing;
- Demonstrates conduct substantially below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
- Amounts to professional misconduct; and
- Demonstrates conduct inconsistent with the respondent being a fit and proper person to hold registration in the profession.
- The Tribunal accepts those admissions and concessions as realistic.
- The questions of appropriate sanction and of publication of the proceedings are to some extent connected, and it will be convenient firstly to discuss the non-publication issue.
Should a non-publication order be made?
- The Pharmacist’s removal from a work place where there is constant contact with drugs, and, for him, temptations, is a deliberate and commendable move. He contends that his new career may be jeopardised if the details of his conduct are published and able to be known by his students.
- He argues that he has “a certain degree of authority” and tries to serve as a positive role model. He is ashamed of his past behaviour and fears that his position as a secondary school teacher may become untenable. His female partner also fears that the availability of details of the present case would cause adverse and negative gossip within the school community where her children and the Pharmacist’s children attend.
- The application is supported by psychiatrist Dr Prior. He considers that there is a potential negative impact upon the Pharmacist’s recovery and career if details of his past actions were made public and “would probably affect him and his recovery negatively”.
- The Board however negotiated an agreed position on sanction on the assumption that the present proceedings are open and public, and that the conduct of the practitioner, as is the usual case, is available for public knowledge. Having considered the present application, the Board maintained its position that the Pharmacist’s name should be published along with the reasons and any sanction decision made by the Tribunal.
- The ordinary course in such proceedings is "open", and involves full publication of the respondent’s name and the evidence relied on and, in particular, the summary that can be gleaned from publication of the reasons for judgment. This reflects the principles of open justice.
- A non-publication order can only be made if the Tribunal considers the order “necessary” having regard to the factors set out in s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). It has been noted that there is a public interest promoting open justice so that it is seen to be done by the community.
- Further, a guiding principle of the National Law, applicable to the present proceedings, is that the scheme is to operate in a “transparent” way. In the ordinary course disciplinary proceedings are conducted in public, and awareness of this by professionals and others who are subject to disciplinary regimes is a strong deterrent to aberrant behaviour.
- It is in any event difficult to think that the essential details of the Pharmacist’s fall from grace can be kept secret, or that a lid can be kept on relevant details. It is already in the public domain, as he has been publicly convicted in the Magistrates Court of criminal offences. Details of the court proceedings are not protected. Furthermore, even if a non-publication order were made, the finding of professional misconduct and the reprimand, along with his disqualification for three years would be publicly available on the National Register of Pharmacists.
- It is true that a non-publication order would mean that a good deal of the actual detail would be unavailable, but speculation and gossip would be likely to follow, and might be equally disadvantageous to the Pharmacist.
- The Pharmacist’s students have already commented to him that they have looked for him on Facebook and have asked questions about his past. This is hardly surprising. It is difficult to think that the details of his past will be able to be kept secret irrespective of the making of any non-publication order. In the end, telling the truth, and the merit of his rehabilitation may well be a preferable outcome to speculation and gossip based on the basic details that are and will be publicly known.
- Irrespective of that, I did not consider the order “necessary” to avoid any of the contingences set out in s 66(2) of the QCAT Act. The main question is whether publication would endanger his mental health. Despite Dr Prior's support for his application I am not satisfied that the pharmacist's mental health or safety would be endangered by publication of the proceedings. Overall I do not think that prohibition of publication would be in the interests of justice.
- The parties have proposed that the following orders should be made:
- The respondent be reprimanded;
- The respondent be disqualified from applying for registration for a period of three years from the date of the orders of the Tribunal; and
- The respondent pay the Board’s costs of and incidental to the proceedings agreed in the sum of $12,000.
- The relevant conduct was serious and absolutely unacceptable in a pharmacist.
- The following factors however are relevant as mitigating factors:
- There was a prompt “self-notification” of the conduct and a guilty plea in respect of the criminal charges;
- The Pharmacist voluntarily attended his general practitioner and psychiatrist and undertook a treatment program at Damascus Health Services;
- His conduct did not directly affect any patient or client of the pharmacy;
- The Pharmacist cooperated with the Board from a very early stage and made appropriate admissions; and
- The Pharmacist retrained himself for a new profession so as to remove himself from situations which give rise to a relapse.
- In short, the attempt at rehabilitation has been appropriate and meritorious.
- His substance abuse and illegal behaviour, involving breach of trust as an employee and the misuse of drugs, are so interconnected with his work as a pharmacist that it must be characterised as professional misconduct, and a finding should be made that the respondent is not a fit and proper person to hold registration.
- A number of past decisions were referred to in order to demonstrate that the proposed sanction is within an appropriate range of options. They include Pharmacy Board of Australia v Chrenowski  SAHPT 26; HCCC v Kahli Bard  NSW NMT 15; HCCC v Lau  NSWPHT 2; and Pharmacy Board of Australia v Dougherty  SAHPT 6.
- The present proposal seems to be well within the range of usual responses to conduct of this kind. The decided cases suggest that the usual response to misconduct of like seriousness is a ban from registration for a limited finite period, usually ranging between one to five years.
- In the present matter, the Pharmacist has already been without registration for a period of two years and eight months. The withdrawal of his renewal application was a voluntary act on his part, in the face of highly likely deregistration action by the Board. In the result, the proposed three year non registration period from the date of this order will mean a de facto non-registration period of over five and a half years.
- The respondent’s weakness was of long standing and it may well be that any return at all to a position as a pharmacist in the future is undesirable. That, in the first instance, is a matter for him. In any event, in order to regain registration he would need to show that he is a fit and proper person, and would need to demonstrate convincingly that there is no prospect of recurrence of like conduct. In all the circumstances, the proposed period seems reasonable.
- The following orders will be made:
- The respondent is reprimanded;
- The respondent is disqualified from reapplying for registration for a period of three years from the date of this order;
- The respondent is to pay the Board’s costs of and incidental to these proceedings as agreed in the sum of $12,000.
- The respondent's application for a non-publication order is dismissed.
 National Law, s 193(2)(b) and s 193B.
 Ibid, s 196(1)(b).
 Assessment made on 5 November 2013.
 Queensland College of Teachers v Mills  QCAT 476.
 Kennedy v Deputy Assistant Commissioner Stewart  QCAT 360 at , cf Dr Choo-Tian Lee v Medical Board of Australia  QCAT 23.
 Per Carmody J in Lee above.
 National Law, s 3(3)(a).
 See definition of "professional misconduct" in s 5 of the National Law.
- Published Case Name:
Pharmacy Board of Australia v Christie
- Shortened Case Name:
Pharmacy Board of Australia v Christie
 QCAT 291
26 Aug 2016