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Queensland Judgments
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  • Unreported Judgment

Health Ombudsman v SVR

 

[2019] QCAT 403

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Health Ombudsman v SVR [2019] QCAT 403

PARTIES:

Health ombudsman

(applicant)

 

v

 

SVR

(respondent)

APPLICATION NO/S:

OCR75-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 November 2019 (ex tempore)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

John Robertson, Judicial Member

Assisted by:

Mr A Foote

Ms S Harrop

Ms K Kensell

ORDERS:

  1. Pursuant to section 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct. 
  2. Pursuant to section 107(3) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded. 
  3. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2019 (Qld), publication of:
    1. (a)
      the contents of a document or thing filed in or produced to the Tribunal; 
    2. (b)
      the hearing before the Tribunal, and
    3. (c)
      any order made or reasons given by the Tribunal

is prohibited to the extent that it could identify or lead to the identification of the respondent.

  1. No order as to costs. 

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the respondent is a registered pharmacist – where the respondent stole a script from a prescription pad of her employer, forged a prescription for drugs and attempted to fill the prescription – where the respondent pleaded guilty to two criminal offences – whether the respondent behaved in a way that constitutes professional misconduct – what sanction should be ordered

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFFENCE – where the respondent is a registered pharmacist – where the respondent stole a script from a prescription pad of her employer, forged a prescription for drugs and attempted to fill the prescription – where the respondent pleaded guilty to two criminal offences – whether the respondent behaved in a way that constitutes professional misconduct – what sanction should be ordered

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – BOARDS, TRIBUNALS, ETC – whether a non-publication order should be made to avoid endangering the mental health of the respondent

Health Ombudsman Act 2013 (Qld), 103(a), s 104, s 107

Queensland Civil and Administrative Tribunal Act 2019 (Qld), s 66

Health Practitioner Regulation National Law (Qld), s 5(a), s 5(c)

REPRESENTATION:

 

Applicant:

Director of Proceedings on behalf of the Health Ombudsman

 

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

  1. [1]
    The respondent is a registered pharmacist.  She is highly qualified and has an exemplary personal history.  She has never previously been subject to any disciplinary action or notifications.  The applicant has referred these proceedings against the respondent to the Tribunal pursuant to sections 103(a) and 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”).  The parties have filed joint submissions as to the appropriate findings and sanction.

Conduct

  1. [2]
    The disciplinary proceedings relate entirely to a single episode of criminal offending which occurred in May 2018 when the respondent was employed as a senior pharmacist with [redacted].  On the 15th of May she stole a script from a prescription pad which was owned by her employer.  She then filled out the prescription for drugs, one of which is commonly used to treat depression and/or anxiety, and another which is a weight loss medication known as Duromine.  She then forged the signature of a medical practitioner on the script.  The following day she attempted to fill the prescription at a pharmacy at [redacted] but desisted when the staff became suspicious on the basis that the drug Duromine is not dispensed ordinarily by [redacted] hospital facilities.
  2. [3]
    On the 18th of May 2018 she was interviewed by police and made full and complete admissions, expressed remorse and advised police of the reasons behind what is clearly abhorrent and entirely uncharacteristic behaviour by this otherwise good person and competent pharmacist. 
  3. [4]
    On the [redacted] 2018 she pleaded guilty to two criminal offences in the [redacted] Magistrates Court.  She was fined $1200 and no conviction was recorded. 
  4. [5]
    The conduct as described falls within the definition of professional misconduct as defined in section 5(a) and (c) of Health Practitioner Regulation National Law (Queensland).  The fact that she stole a script from her employer and completed it and attempted to have it filled at a local pharmacy at a time when she was employed as a senior pharmacist is sufficient to satisfy me to the requisite standard that the allegation of professional misconduct has been proved.

Sanction

  1. [6]
    The respondent’s academic record and work history are set out in paragraphs 6 to 11 of the statement of facts filed with the Tribunal on the 23rd of March 2019 on behalf of both parties.
  2. [7]
    On the date she was interviewed by the police, namely the 18th of May 2018, she was suspended by [her employer] on full pay. 
  3. [8]
    On the 6th of June 2018 she wrote to her employer admitting the impugned conduct and expressing regret and shame over her actions.  Her employment was terminated on the [redacted] 2018.  Her registration has not been suspended, but she has not worked as a pharmacist, effectively, since May 2018.  That in itself is a severe sanction given that the purpose of these proceedings is disciplinary and not punitive.
  4. [9]
    In both her interview with police and in her letter to her employer in June 2018 she referred to the reasons for her completely out of character behaviour.  There is uncontested evidence from her present treating psychiatrist, and also reports from past treating professionals, that at the time she committed these offences she was suffering from undiagnosed and untreated post-traumatic stress disorder and probably a major depressive disorder and/or an adjustment disorder arising out of the death of a troubled but much loved [relative] by suicide in a house in Rockhampton where they had been sharing accommodation.  There is also evidence in the material that prior to the death of her [relative] there had been incidents of domestic violence by the [relative] towards the respondent. 
  5. [10]
    I accept her treating psychiatrist’s opinion that she has responded extremely well to appropriate medical treatment, including medication, and is now a fit and proper person to be able to return to her profession as a pharmacist.  It is to her great credit that even with the obvious stress that she must feel from being away from a profession she clearly loves, and with these disciplinary proceedings hanging over her head, she has enrolled in [post-graduate studies].
  6. [11]
    In her interview with police, in her letter to her employer, and in her cooperation with the applicant in resolving these disciplinary proceedings and in her willingness to continue with appropriate medical treatment, she has shown significant insight and remorse which all goes well for her future as a professional pharmacist.  I accept her doctor’s opinion that she presently does not in any way present as a danger to the health and safety of any patient and that she is highly likely to uphold the high principles of ethical behaviour required by her profession when she returns to it.
  7. [12]
    It is relevant that despite obvious severe stresses that existed prior to her offending because of her [relative]’s problems and problems in their relationship, she did not depart from those standards.  The character reference from her former employer, the director of pharmacy at [redacted], [redacted], attests to that very fact.  As does her fellow employee, senior pharmacist [redacted]. 
  8. [13]
    With a view to assisting those who are considering her re-employment in her chosen profession, I intend to quote both of those references in full.  [redacted]
  1. [14]
    [redacted]
  2. [15]
    Her treating psychiatrist from [redacted] opines that, at the time of the offending, and despite her clear outward resilience and suppression of her illness to her work colleagues, she was away from close emotional support, was isolated and the behaviour was clearly explicable only by relating it to her mental illness at the time.
  3. [16]
    As the assessors, qualified pharmacists, have pointed out to me, the choice of a drug such as Duromine to write on the fraudulent script indicates that she was clearly not thinking properly at the time, and there is clear evidence of features of the undiagnosed post-traumatic stress disorder.
  4. [17]
    Both parties submit that the sanction should be a reprimand.  I agree.  It is only if the agreed sanction falls outside the permissible range for the conduct as suggested by the law that the Tribunal would depart from what is agreed.  In the opinion of the Tribunal, this is an extremely exceptional case and it would be tragic indeed that this one isolated incident of misconduct – particularly in the context of her undiagnosed mental illness – would compromise her employment prospects in the future. 

Non-publication order

  1. [18]
    The Tribunal has power, under section 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), to make a non-publication order.  Relevantly, section 66(2)(b) enables the tribunal to make such an order if it considers it necessary having regard to avoiding endangering the mental health of a person.  The respondent’s treating psychiatrist opines, in the clearest terms, that publication of her name and the findings in order made would endanger her mental health, and I accept that opinion.

Orders

  1. [19]
    In those circumstances, the orders of the Tribunal are as follows:
  1. Pursuant to section 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct. 
  2. Pursuant to section 107(3) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded. 
  3. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2019 (Qld), publication of
    1. (a)
      the contents of a document or thing filed in or produced to the Tribunal; 
    2. (b)
      the hearing before the Tribunal, and
    3. (c)
      any order made or reasons given by the Tribunal

is prohibited to the extent that it could identify or lead to the identification of the respondent. 

  1. No order as to costs. 
Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v SVR

  • Shortened Case Name:

    Health Ombudsman v SVR

  • MNC:

    [2019] QCAT 403

  • Court:

    QCAT

  • Judge(s):

    Robertson J

  • Date:

    25 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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