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  • Unreported Judgment

Pharmacy Board of Australia v Jattan

 

[2015] QCAT 294

CITATION:

Pharmacy Board of Australia v Jattan [2015] QCAT 294

PARTIES:

Pharmacy Board of Australia

(Applicant/Appellant)

v

Rimal Jattan

(Respondent)

APPLICATION NUMBER:

OCR248-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

30 July 2015

HEARD AT:

Brisbane

DECISION OF:

Judge Horneman-Wren SC, Deputy President

Assisted by:

Mr Michael Lupton

Ms Gail Neilson

Mr Brett Muller

DELIVERED ON:

18 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Parties are to make any submissions on the proposed orders, in the attached Annexure A, within 7 days.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – HEALTH PRACTITIONERS REGULATION NATIONAL LAW GENERALLY – where Pharmacist found to have behaved in a way that amounts to professional misconduct – where joint submissions as to sanction put before the Tribunal – whether Barbaro v The Queen prohibits the Tribunal from considering joint submissions as to sanction – whether Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union applies to disciplinary proceedings – where a decision under ss 241 or 243 of the Health Practitioner (Disciplinary Proceedings) Act 1999 may be suspended under s 247 of that Act – where a suspended decision cannot be dealt with further by the Tribunal because of the repeal of ss 126 and 250 of the Health Practitioner (Disciplinary Proceedings) Act 1999 – whether an ancillary order may be made under s 114 of the Queensland Civil and Administrative Tribunal Act 2009 which would operate to similar effect as the repealed ss 126 and 250 of the Health Practitioner (Disciplinary Proceedings) Act 1999

Acts Interpretation Act 1954 (Qld)

Building and Construction Industry Improvement Act 2005 (Cth)

Health(Drugs and Poisons) Regulation 1996 (Qld)

Health Ombudsman Act 2013 (Qld), s321, s314

Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld), s124, s247, s241, s242, s244

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s28, s86, s87

State Administrative Tribunal Act 2004 (WA)

Barbaro v R [2014] 253 CLR 58

Director Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) ALR 631 Medical Board of Australia v Leggett [2015] QCAT 240

Legal Profession Complaints Committee v Love [2014] WASC 389

Medical Board of Australia v Andersen [2014] QCAT 374

Medical Board of Australia v Martin [2013] QCAT 376

Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2008] FCAFC 72 

Rich v Australian Securities and Investment Commission (2004) 220 CLR 129 

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285

Pharmacists Board of Queensland v Mikhail [2010] QCAT 621

Pharmacy Board of Australia v Coffey [2008] QHPT 14 October 2008

Pharmacy Board of Australia v Coghill [2015] QCAT 27

Psychology Board of Australia v Cook [2014] QCAT 162

Pharmacy Board of Australia v Daddow [2013] QCAT 41

Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 522

Pharmacy Board of Australia v Huynh [2013] QCAT 42

Pharmacy Board of Australia v Kent [2012] QCAT 329

Pharmacy Board of Australia v Tavakol [2014] 122 

Reimers v Health Care Complaints Commission [2012] NSWCA 317

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr C Wilson of counsel, instructed by Lander & Rogers Solicitors 

RESPONDENT:

Mr M Black instructed by Gilshenan & Luton Legal Practice

REASONS FOR DECISION 

  1. [1]
    The Pharmacy Board of Australia has referred disciplinary proceedings against a registered pharmacist, Mr Rimal Jattan, pursuant to s 126 of the Health Practitioner (Disciplinary Proceedings) Act 1999 (Disciplinary Proceedings Act).
  2. [2]
    The Disciplinary Proceedings Act was repealed by the Health Ombudsman Act 2013 (Qld)[1] with effect from 1 July 2014.  Notwithstanding its repeal, the Queensland Civil and Administrative Tribunal can continue to hear and decide this matter under the Disciplinary Proceedings Act as if that Act had not been repealed.[2]
  1. [3]
    The ground for disciplinary action which the Board alleges is that Mr Jattan has behaved in a way that constitutes “unsatisfactory professional conduct”,[3] as defined by the Disciplinary Proceedings Act.

Mr Jattan’s Conduct 

  1. [4]
    The parties have filed a statement of agreed facts in which various facts as alleged by the Board are admitted by Mr Jattan, and in which he further admits that by that conduct he has behaved in a way that constitutes unsatisfactory professional conduct.
  2. [5]
    Mr Jattan admits that the two grounds of unsatisfactory professional conduct alleged by the Board are established.  The first is that he has been convicted of an offence against s 285A of the Health (Drugs and Poisons) Regulation 1996 (the Regulation). The conviction was for having failed to make and record the sale to a customer of 2 boxes of AMC Sinus relief containing the active ingredient pseudoephedrine (PSE).[4]  The second ground relates to Mr Jattan’s sale or dispensing of Schedule 4 prescription only medicines and restricted drugs under the Regulation, and the deletion from the dispensing data of Broadbeach and Mermaid Beach pharmacies of entries of restricted drugs in contravention of s 199(5) and 222 of the Regulation. At the relevant time, Mr Jattan owned, or had an interest in, each of the Broadbeach Amcal Chempro Compounding Chemist, and the Mermaid Beach Amcal Chempro Chemist. 
  3. [6]
    Mr Jattan’s conduct in respect of ground 2, as admitted by him, can be summarised as follows.
  4. [7]
    On 28 August 2007 Mr Jattan dispensed to a customer, ST: 120 capsules of Andriol Testocaps 40mg, containing the active ingredient testosterone undecanoate; 30 capsules of Duromine 40mg, containing the active ingredient phentermine; 5 capsules of Fermil 50mg, containing the active ingredient clomiphene citrate; Pregnyl 1500U 3/1ml ampules and 2 boxes of Pregnyl 500U 3/1ml ampules, containing the active ingredient human chorionic gonadotprophin; 2 boxes of Primoteston Depot Syringe 250mg – 1ml by 3, containing the active ingredient testosterone ethanoate; 60 tablets of Tamosin 20mgs, containing the active ingredient tamoxifen; 50 tablets of Xanax Tri-score 2mgs, containing the active ingredient alprazolam.  
  5. [8]
    Each of those drugs were schedule 4 prescription only medicines, and restricted drugs under the Regulation.  They each had the potential for misuse and abuse.  Mr Jattan ought to have known that dispensing the quantity and combination of those drugs was beyond the extent necessary to practice pharmacy and contrary to the terms of his endorsement.  He ought to have known that dispensing the quantity and combination of those drugs was “poly-pharmacy” in breach of his obligations under criterion 5 of Standard 1 of the Professional Practice Standards of the Pharmaceutical Society of Australia (the Standards).  
  6. [9]
    He also ought to have known that dispensing that quantity and combination of drugs was not for any therapeutic purpose, and he ought to have considered the possibility that the quantity and combination of drugs sought by ST was not for his personal use.
  7. [10]
    The dispensing of the 5 tablets of Fermil to ST was in breach of: s 187 of the Regulation; the terms of Mr Jattan’s endorsement as a pharmacist; the Standards; and the Pharmaceutical Society of Australia’s Code of Professional Conduct (the Code).  Fermil is a drug used to treat women with ovulatory dysfunction.  Under s 187 of the Regulation it may only be dispensed by a pharmacist if it is prescribed by a specialist obstetrician or gynaecologist.  Mr Jattan ought to have been suspicious of the prescription made out to a person of the opposite sex to the approved indication for the drug.  He ought to have considered that dispensing Fermil to ST, a male, could cause physical harm.  
  1. [11]
    Similarly, Tamosin is used to treat breast cancer, usually in females.  Mr Jattan ought to have been suspicious of the prescription made out to a person of the opposite sex to the approved indication for the drug.  He ought to have considered that dispensing Tamosin to ST could cause physical harm.  The dispensing of the 60 tablets of Tamosin was in breach of the terms of his endorsement as a pharmacist, the Standards and the Code.
  2. [12]
    During the period from January 2006 to November 2007 117 boxes of Andriol were obtained from a wholesaler by Mr Jattan for the Broadbeach Pharmacy.  39 boxes of Andriol were recorded in the Broadbeach Pharmacy’s dispensing software as having been dispensed during that period.  78 boxes of Andriol were not accounted for in the Broadbeach Pharmacy’s dispensing records.
  3. [13]
    Andriol contains the active ingredient testosterone undecanoate and is a schedule 4, prescription only medicine and a restricted drug under the Regulation.
  4. [14]
    The Broadbeach Pharmacy held records of prescriptions for Andriol issued by Dr Maria Angeles Dolar in the name of Mr Jattan’s father in law who was a resident of Fiji.  The prescription records show that 120 capsules of andriol 40 mgs were prescribed to Mr Jattan’s father in law on each of: 10 May 2005; 1 September 2006; 6 September 2006; 12 November 2006; 1 February 2007; and 2 July 2007.  Each of those prescriptions had 5 repeats.  Mr Jattan made handwritten annotations on the prescriptions that he had dispensed 72 boxes of Andriol to his father in law, or unknown persons, on 9 January 2006, by post, on the basis of the 10 May 2005 prescription; on 4 September 2006, on the basis of the 1 September 2006 prescription; on 12 December 2006, on the basis of the 6 September 2006 prescription; on 2 February 2007, on the basis of the 12 November 2006 prescription; on 17 September 2007, on the basis of the 1 February 2007 prescription; and in or about July or October 2007, on the basis of the 2 July 2007 prescription.  Mr Jattan did not keep records of the Andriol dispensed on those occasions.  This was in contravention of sections 199(1) and 222 of the Regulation.
  5. [15]
    During that same period, Dr Jattan obtained 361 boxes of Primoteston from a wholesaler.  During that period 114 boxes of Primosteston were recorded in the Broadbeach Pharmacy dispensing software as being dispensed.  Primoteston contains the active ingredient testosterone and is a schedule 4, prescription only medicine, and a restricted drug under the Regulation.
  6. [16]
    Mr Jattan made handwritten annotations on the prescriptions that he dispensed Primoteston 10% cream on 15 February 2006 to an unknown person; on 2 December 2006 to an unknown person; on 1 May 2006 to Mr Dolar; on 3 November 2006 to Mr Dolar; and on 22 July 2007 to “Eddie Dolar”.  
  1. [17]
    The Primoteston 10% cream was dispensed on the basis of a prescription purportedly issued by Dr Maria Dolar in the name of Mr Edgardo Dolar dated 1 May 2006.  The cream dispensed was compounded from 234 boxes of the total number of boxes of Primoteston obtained by the registrant from the wholesaler; 13 boxes used to compound each 100g of the Primosteston 10% cream.
  2. [18]
    247 boxes of Primoteston were not accounted for in the pharmacy’s dispensing records.  Mr Jattan failed to keep records of the Primoteston dispensed in contravention of section s 199(1) and 222 of the Regulation.
  3. [19]
    Mr Jattan’s admitted conduct also included the deletion of a large number of entries for restricted drugs from the Broadbeach Pharmacy’s dispensing data.
  4. [20]
    Between 30 March 2007 and 19 May 2008, 166 entries for restricted drugs prescribed by Dr Jaa-Quee Ping were deleted.  Between 8 November 2007 and 6 June 2008, 248 entries of restricted drugs prescribed by Dr David Jaa-Quee David were deleted.  Between 24 January 2007 and 17 June 2008, 39 entries prescribed by Dr Helen Bothwell were deleted.  Between 6 May 2007 and 20 August 2008, 188 entries prescribed by Dr Ruben Edyp were deleted.  Between 29 June 2007 and 17 November 2007, 7 entries purportedly prescribed by Mr Zaphir were deleted.  13 entries of restricted drugs prescribed by various doctors for Mr ST were deleted and between 15 January and 2 June 2008, 109 entries prescribed by Dr Bamford were deleted.
  5. [21]
    The deletion of those entries was in contravention of s 199(5) and 222 of the Regulation.
  6. [22]
    Some of Mr Jattan’s admitted conduct concerned dispensing from the Mermaid Beach Pharmacy.  During the periods 29 July 2008 to 19 August 2008, and 2 October 2008 to 26 November 2008, DA obtained drugs from the Mermaid Beach Pharmacy including 72 boxes of Deca-Durabolin Orgaject 50mgs/1ml containing the active ingredient nandrolone decanonate; 5 boxes of Reandron 1000mg/4ml, containing the active ingredient testosterone undecanoate; and 120 boxes of Sustanon 250mg/1ml.  Mr Jattan ought to have known that dispensing that quantity and combination of drugs to DA was beyond the extent necessary to practice pharmacy and contrary to the terms of his endorsement.
  1. [23]
    Between 20 May 2008 and 9 September 2008 RK obtained drugs from the Mermaid Beach Pharmacy including 6 boxes of Primosteston Depot Syringe 250mg/1ml; and 24 boxes of Sustanon 250mg/1ml.  Each of those drugs are schedule 4 prescription only medicines and restricted drugs under the Regulation.  Each have the potential for misuse and abuse.  Mr Rattan ought to have known that dispensing that quantity and combination of Primoteston and Sustanon to RK was beyond the extent necessary to practice pharmacy and contrary to the terms of his endorsement.  
  2. [24]
    The dispensing of the drugs to DA and RK was in contravention of the terms of Mr Jattan’s endorsement and was other than in compliance with the Standards and the Code.  

Joint Submissions

  1. [25]
    In addition to the agreed statement of facts, the parties also filed joint submissions in which they jointly proposed orders in sanction of Mr Jattan’s admitted unsatisfactory professional conduct.  The joint submissions also proposed an order, again agreed between the parties, that Mr Jattan pay the Board costs fixed in the sum of $60,000.
  2. [26]
    The orders proposed jointly by the parties are that Mr Jattan be found to have behaved in a way that constitutes unsatisfactory professional conduct; that he be reprimanded;[5] that his registration be suspended for a period of 12 months[6] with that suspension itself being wholly suspended for an operational period of 12 months;[7] that various conditions be imposed upon his registration for a period of 12 months;[8] that such conditions have a review period of 12 months;[9] and that the conditions be recorded in the Board’s register for the period that they are in force.[10]
  3. [27]
    In jointly proposing those orders by way of sanction the parties refer to the observations of the Tribunal in Medical Board of Australia v Martin[11] that the Tribunal ought not depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction for the conduct.  The parties submit that the orders which they propose fall within the permissible range “having regard to the totality of Mr Jattan’s conduct and bearing in mind that the purpose of the proceedings is protective rather than punitive”.[12]

Further Submissions Sought

  1. [28]
    That submission having come to my attention in the days prior to the hearing of this matter, I had my Associate inform the parties that, in light of it, I would want to hear from them as to what, if any, effect the decision of the Federal Court of Australia in Director Fair Work Building Industry Inspectorate v CFMEU[13] might have on the Tribunal’s observations in Martin.  In CFMEU, a full Court of the Federal Court of Australia found that the principles in respect of sentencing stated by the High Court of Australia in Barbaro v R[14] applied to pecuniary penalty proceedings brought for contraventions of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act).
  2. [29]
    Mr Black of counsel, who appeared for Mr Jattan, in very helpful and detailed written submissions, submitted that the applicability or otherwise of the reasoning and principles set out in Barbaro, and as applied in CFMEU, should be determined as a preliminary matter.  If the Tribunal were to determine that the reasoning and those principles did not apply to these proceedings, such that the Tribunal’s observations in Martin continued to apply, the Tribunal would go on to determine the substantive issues on the basis of the agreed statement of facts and the joint submissions.
  3. [30]
    If, on the other hand, the Tribunal were to determine that the principles stated in Martin were no longer applicable, the matter should be adjourned for a further hearing allowing the parties time to consider their respective positions in light of the Tribunal’s ruling.
  4. [31]
    Mr Wilson of counsel, who appeared for the Board, agreed with those submissions.

The principles expressed in Martin

  1. [32]
    In making the observations in Martin as set out above, the Tribunal applied reasoning expressed by an earlier Full Court of the Federal Court of Australia in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission,[15] where in a joint judgment Burchett and Keifel JJ had referred to the important public policy considerations in a court (or tribunal) not departing from agreed sanctions which were within a permissible range in all the circumstances of a particular case.  The Tribunal respectfully adopted and applied the reasoning in NW Frozen Foods to disciplinary proceedings brought in QCAT pursuant to the Disciplinary Proceedings Act and the Health Practitioner Regulation National Law (National Law). In doing so, the Tribunal observed, at [93] that:

It would be an unfortunate consequence, detrimental to the system of just and timely of resolution of proceedings of this kind, facilitated as they are by the encouragement of parties to participate in an alternative dispute resolution, if the parties were to conclude that proper agreements reached might be upset by the Tribunal simply taking a different view of what may be an appropriate sanction in a particular matter.  This is particularly so given that a party proposing the agreed sanction will be a national Board charged with the functions of registering suitably qualified and competent persons in the relevant health profession; imposing conditions on their registration; and developing and approving appropriate standards, codes and guidelines for the health profession.

  1. [33]
    The Tribunal’s reference to the functions of the National Boards is drawn from those functions conferred upon Boards by section 35 of the National Law.[16]
  2. [34]
    The Tribunal’s decision in Martin has been applied consistently by the Tribunal in other disciplinary proceedings under the Disciplinary Proceedings Act and the National Law, and in other occupational disciplinary proceedings.[17]

Barbaro and CFMEU

  1. [35]
    In Director, Fair Work Building Industry Inspectorate v CFMEU, the Full Court of the Federal Court, whilst acknowledging the long established practice described in NW Frozen Foods and in Minister for Industry, Tourism & Resources, v Mobil Oil Australia Pty Ltd[18], determined that they were required to depart from that practice because, and only because, they considered that the High Court’s decision in Barbaro required them to do so.[19]
  2. [36]
    In Barbaro, the plurality of the High Court had held that it was impermissible for a prosecutor in sentencing proceedings to make submissions as to the “available range” of sentence which might be imposed by a Court, or the specific result which the Court should reach.[20]  Their Honours explained that any such submission was a statement of opinion,[21] and an opinion not formed or advanced dispassionately.[22]  Submissions are to be restricted to matters of fact based upon evidence and to matters of law.[23]
  3. [37]
    The proceedings in CFMEU concerned an application for the imposition of pecuniary penalties for contraventions of “civil penalty provisions” under the DCII Act.  In considering CFMEU and the applicability in these proceedings of the court’s conclusion that Barbaro required a departure from the practice described in NW Frozen Foods and Mobil, it is to be borne firmly in mind that their Honours, on several occasions in their reasons, emphasised that they were considering the application of Barbaro only in the context of the civil pecuniary penalty regime under the BCII Act.[24]  In so doing, the Court observed that “generalised references to pecuniary penalty regimes, other than that established under the BCII Act, may be unhelpful”.[25]
  1. [38]
    Further, it must also be borne in mind that the reasoning in CFMEU was in respect of judicial pecuniary penalty proceedings.  Even if such reasoning is applicable to other such pecuniary penalty regimes established under other legislation, caution should be exercised in extending such reasoning to proceedings brought in a tribunal, and which do not concern the imposition of such pecuniary penalties.  The reasons of the Full Court in CFMEU demonstrate why this is so.
  2. [39]
    It has frequently been stated, in many jurisdictions, of disciplinary proceedings such as these, that their purpose is protective, not punitive.  In Rich v Australian Securities and Investment Commission[26] a case concerning whether a person against whom a pecuniary penalty was sought could avail himself of the privilege against exposure to penalties and forfeitures which applies in criminal proceedings, and thus resist discovery of documents, the plurality[27] rejected reasoning that a distinction between “protective” and “punitive” proceedings was possible and useful.[28]
  3. [40]
    Their Honours considered that, at best, such a distinction was elusive.[29]  They observed that proceedings may have both protective and punitive characteristics.[30]  Notwithstanding that proceedings in which an order is sought disqualifying a person from holding office as a director might be brought to protect the public, as against the person disqualified, such an order operates as a penalty.[31]  Their Honours observed that “Equity’s concern with penalties was never limited to pecuniary penalties”.

Should Barbaro and CFMEU be applied in these Proceedings?

  1. [41]
    Therefore, as the full Federal Court in CFMEU identified, the answer to the question of whether or not the principles stated in Barbaro apply in any particular proceedings is not provided by some taxanomic classification of the proceedings.  One must turn to the provisions of the particular legislation.[32]  Further, their Honours identified that because sections 48 and 49 of the BCII Act which conferred the power to make orders imposing pecuniary penalties conferred that jurisdiction upon numerous State and Commonwealth Courts, “the procedure to be adopted in any application… will be the procedure prescribed by the rules of the Court in which the proceedings are brought”.[33]
  2. [42]
    The Court accepted that there was a distinction[34] between pecuniary penalties and other compensatory, remedial and protective remedies available under the BCII Act.[35]  The Court’s consideration of the applicability or otherwise of the Barbaro principles was limited to cases in which a regulator had chosen to seek pecuniary penalties and it was irrelevant that he may have chosen to seek penalties of a different kind.[36]  It was the similarity between the criminal sentencing process and the process by which pecuniary penalties are imposed, particularly the same instinctive synthesis involved in each, which formed much of the Court’s basis for concluding that the Barbaro principles should be applied.[37]
  3. [43]
    In my view, the statutory regimes established under the Disciplinary Proceedings Act and the National Law are quite different to the pecuniary penalty regime established under the BCII Act. The procedures to be adopted in hearing and determining disciplinary proceedings as prescribed by the QCAT Act are also different to those which apply in judicial civil penalty proceedings more generally. Those differences lead me to conclude that the principles established in Barbaro should not be applied in such disciplinary proceedings.
  4. [44]
    As has already been noted, in CFMEU the full Federal Court was considering an application in which the Director, Fair Work Building Industry Inspectorate brought proceedings seeking the imposition of pecuniary penalties notwithstanding that other orders may have been sought.  Those proceedings were, necessarily, commenced in a court.  
  5. [45]
    Under part 6 of the Disciplinary Proceedings Act the Board does not bring an application seeking a pecuniary penalty, or indeed any particular relief. 

It refers a disciplinary matter to the Tribunal.  The same is true under part 8, division 12 of the National Law. It is only after completing a hearing of a disciplinary matter and deciding that a ground for disciplinary action has been established against the Registrant that the form of any particular disciplinary action will be considered by the Tribunal.[38]  The forms of disciplinary action which the Tribunal may take include: advising, cautioning or reprimanding the registrant; imposing conditions on his or her registration; suspending his or her registration for a stated period; cancelling his or her registration; imposing a fine; or some combination of those actions.

  1. [46]
    Under the Disciplinary Proceedings Act, the conditions which may be imposed include requiring the registrant not to carry out a type of practice or procedure; requiring the registrant not to provide services to a class of persons; requiring the registrant to carry out the registrant’s practice under supervision; requiring the registrant to undertake an educational course, or continuing professional education activity, and report to the registrant’s board after completing the course or activity; requiring the registrant to obtain, or act on, advice from the registrant’s board or a stated person about the management of the registrant’s practice; requiring the registrant to report about particular aspects of the registrant’s practice to the registrant’s Board or a stated person; requiring the registrant to report to the registrant’s board, about the registrant’s compliance with the conditions imposed by the Tribunal.  
  2. [47]
    Section 244(1)(a) requires that in making a decision about what disciplinary action to take against a registrant under s 241(2), or a former registrant under s 243(2), the Tribunal must have regard to the purposes of disciplinary action mentioned in s 123.  Section 123 states that the purposes of disciplinary proceedings and disciplinary action are: to protect the public; to uphold the standards of practice within the health professions; and to maintain confidence in the health professions.  Those purposes reflect the main objects of the Disciplinary Proceedings Act set out in s 6(a), (b) and (c).  Those objects and purposes, and the requirement to have regard to them when deciding what disciplinary action to take, serve to emphasise the distinction, as accepted by the Court in CFMEU, between pecuniary penalties and other kinds of orders, particularly protective orders.  
  3. [48]
    Hearing submissions of a Board, as a regulator, as to the appropriateness of particular disciplinary actions would be consistent with the Tribunal having regard to those purposes of disciplinary proceedings.  This would seem particularly so given that the functions of a National Board include monitoring conditions, undertakings and suspensions imposed on the registration of practitioners.[39]  
  1. [49]
    This is also particularly so, in my view, when one considers provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which govern the proceeding.  Section 28(3) of the QCAT Act provides that the Tribunal is not bound by the rules of evidence or any practices or procedures applying to courts of record, other than to the extent the Tribunal adopts the rules, practices or procedures, and that it may inform itself in any way it considers appropriate.  In my view, seeking or receiving the opinions of a Board, charged with the functions of registering suitable persons, imposing conditions on registrations and approving appropriate standards, is permissible under such a statutory regime. 
  2. [50]
    Further, the statutory regime which governs disciplinary proceedings in the Tribunal includes s 86 of the QCAT Act which permits the Tribunal to make orders necessary to give effect to a settlement reached between the parties to a proceeding.[40]  Section 87 provides that an order under s 86 giving effect to a settlement for a proceeding may only be made if the Tribunal is satisfied it could make a decision in the terms of the settlement or consistent with it.  Section 241(2)(c) of the Disciplinary Proceedings Act operates with similar effect.  It permits the Tribunal to approve an undertaking entered into between the Registrant and a Board about the Registrant’s professional conduct or practice.  
  3. [51]
    Analogous provisions are found in s 56 of the State Administrative Tribunal Act 2004 (WA).  In disciplinary proceedings concerning a legal practitioner brought under the Legal Profession Act 2008 (WA) a full bench of the Supreme Court of Western Australia,[41] in deciding that the decision in Barbaro did not preclude the Court from receiving and having regard to submissions from the Legal Profession Complaints Committee as to the appropriate disposition of the matter,[42] the Court observed at [78]:

Mediation is an integral part of the Tribunal’s procedure in vocational disciplinary proceedings.  That can result in agreement between the practitioner and the disciplinary regulatory body, here the Committee, as to the appropriate disposition of the proceedings.  We see nothing that precludes the Committee and the practitioner from presenting the agreed position to the Tribunal and inviting the Tribunal to adopt it, should the Tribunal see fit.  Of course, as the Tribunal and the Supreme have held, the Tribunal is not bound to accept the agreed position.  Section 56(1) of the State Administrative Tribunal Act 2004 (WA) empowers the Tribunal to give effect to a settlement; it does not require it to do so.

  1. [52]
    That reasoning is, in my respectful view, apposite to disciplinary proceedings bought against health practitioners in QCAT.
  2. [53]
    In CFMEU the Full Court of the Federal Court referred to the decision in Love.  It stated that the decision had “no real relevance for present purposes”, having observed that it was a decision partly based upon “proceedings in a non-judicial Tribunal which is empowered to give effect to settlements”.[43]  
  1. [54]
    The Full Court’s observations did not cast doubt upon the conclusion reached by the full bench of the Western Australian Supreme Court as to the inapplicability of the Barbaro principles in disciplinary proceedings.  If anything, they highlighted the accepted distinction between such proceedings and those seeking the imposition of pecuniary penalties with which the Court was dealing in CFMEU. It was that distinction which rendered Love irrelevant to the issue the Court was considering. 
  2. [55]
    The full bench in Love had itself drawn such a distinction.  At [75] it had observed:

Professional disciplinary proceedings are not criminal in nature, nor are they relevantly analogous to the process of sentencing in criminal proceedings.  Disciplinary proceedings are civil, not criminal.  The objects of disciplinary proceedings are not punishment of the practitioner.  Rather, as we have said, the objects are the protection of the public and the reputation of the legal profession.

  1. [56]
    Again, the Full Court in CFMEU did not cast any doubt upon those observations.
  2. [57]
    Similar observations to those made in Love were made by the New South Wales Court of Appeal in Reimers v Health Care Complaints Commission[44] where Basten JA, with whom Campbell and Hoeben JJA agreed, having acknowledged that the protection of the community was a relevant sentencing principle, said:

But the underlying purpose of a disciplinary order of deregistration is not primarily punitive, but protective. That is not to impose some artificial dichotomy of punitive and protective orders contrary to Rich v Australian Securities and Investment Commission [2004] HCA 42; 220 CLR 129. Rather, it is to recognise the primary object  of the Medical Practice Act which was “to protect the health and safety of the public by providing mechanisms designed to ensure that…medical practitioners are fit to practice medicine”: s 2A(1). Misconduct which could not be classified as professional misconduct may properly lead to deregistration.  

  1. [58]
    A further distinguishing factor between pecuniary penalty proceedings of the kind considered in CFMEU and disciplinary proceedings such as these is that in CFMEU the Court held that the BCII Act conferred no particular status upon the regulator other than that of a party.[45]  This may be contrasted with the position of the Board in referring proceedings under the Disciplinary Proceedings Act.  In order to consider this issue, something must first be said about the structure of disciplinary processes under the Disciplinary Proceedings Act and the various entities by whom disciplinary findings may be made and disciplinary action taken.
  2. [59]
    The Disciplinary Proceedings Act permits disciplinary proceedings to be brought before, and disciplinary action to be taken by, 3 entities: a National Board itself;[46] a Professional Conduct Review Panel established by the secretary of a Board to hear a disciplinary matter;[47] and the Tribunal.[48]  
  3. [60]
    For a disciplinary proceeding conducted by a Board, it may conduct the proceeding itself,[49] or establish a committee consisting of some of its members to conduct the proceeding.[50]  A Board is only able to deal with disciplinary matters which can be satisfactorily addressed through advising, cautioning or reprimanding the registrant.[51]  The disciplinary action which a Board may take if it decides a ground of disciplinary action has been established against a registrant is limited to advising, cautioning or reprimanding the registrant and/or, with his or her agreement, entering into an undertaking with the registrant about his or her professional conduct or practice.  
  4. [61]
    A Professional Conduct Review Panel established by the secretary of a Board to hear a disciplinary matter must consist of at least 3 and no more than 4 members, and must include 2 persons who are members of the professional panel of assessors for the registrant’s profession and 1 person who is a member of the public panel of assessors.[52] The Board has the right to nominate one of its members who is a member of the registrant’s profession to be a member of the Panel.[53]
  5. [62]
    If a disciplinary proceeding is conducted before a panel and a disciplinary ground is established, the disciplinary actions which the panel may take, in addition to advising, cautioning or reprimanding the registrant, are to approve an undertaking entered into between the registrant and his or her Board, and to impose conditions upon the registrant’s registration.[54]
  6. [63]
    This demonstrates that a number of the various forms of disciplinary action available under the Disciplinary Proceedings Act may be taken by disciplinary bodies which are not only not courts, but are constituted by the Board, members of the relevant profession and, in the case of Panels, include a member of the public and a nominee of the Board. Particularly, conditions may be imposed upon a registrant’s registration by a disciplinary panel. In determining the appropriateness of conditions[55] a panel would be able to hear the opinions of the relevant Board. Those opinions would be helpful. In that regard, it would seem artificial to draw a distinction between proceedings conducted before a panel and those before a tribunal. 
  7. [64]
    The Tribunal’s disciplinary powers include all those exercisable by a panel but with the additional powers to order the registrant to pay a fine, or to suspend or cancel the registrant’s registration.[56]
  8. [65]
    If in conducting a disciplinary proceeding a Board reasonably believes the matter may provide a ground for suspending or cancelling a registrant’s registration, the Board must immediately refer the matter to the Tribunal.[57]  Similarly, if a panel conducting a disciplinary hearing reasonably believes the matter may provide a ground for suspension or cancellation, it must direct the Board to immediately refer the matter to the Tribunal.[58]
  9. [66]
    If the Board itself refers the matter, its referral to the Tribunal must be accompanied by a statement by the Board about the reason for the referral, and any comment or other information about the matter the Board considers appropriate.[59]  Similarly, if a panel directs the Board to refer the matter to the Tribunal, the panel must prepare a statement stating why it considers the matter must be referred to the Tribunal,[60] and may prepare any comment or other information about the matter it considers appropriate.[61]  The Board’s referral notice to the Tribunal must be accompanied by the statement of reasons and any comments or other information about the matter prepared by the panel.[62]  
  10. [67]
    Either of these circumstances would appear to permit the opinions of the Board or the panel as to the appropriateness of particular forms of sanction, to be communicated to the Tribunal.  It would seem quite open to the Tribunal to have regard to those opinions in determining what disciplinary action to take if it ultimately determined that a disciplinary ground had been established.  This would seem particularly so in light of the ability of the Tribunal to inform itself in any way it considers appropriate as permitted by s 28(3)(c) of the QCAT Act, and by it not being bound the rules of evidence or practice and procedure in courts as provided by s 28(3)(b).
  11. [68]
    In my view, the circumstance which led the full Federal Court of Australia to depart from the practice provided in NW Frozen Foods and Mobil, that circumstance being that the High Court’s decision in Barbaro required it to do so, does not exist in respect of disciplinary proceedings referred to the Tribunal under the Disciplinary Proceedings Act.  In proceedings, such as these, in which the decision in Barbaro does not require a departure from the practice in NW Frozen Foods and Mobil, they remain highly persuasive authorities.[63]
  1. [69]
    In my view, those authorities should continue to be followed in disciplinary proceedings arising under the Disciplinary Proceedings Act and the National Law.

Sanction

  1. [70]
    As set out above, it is admitted by Mr Jattan that 2 grounds for disciplinary action have been established against him.  The first is his conviction, upon his own guilty plea, of 1 count of failing to record a sale of PSE.  He was convicted of this offence in February 2007.
  2. [71]
    The joint submissions state that the parties agree that this was “a conviction for an offence related to the practice of his profession within the terms of s 124(1)(g) of the Disciplinary Proceedings Act.”  The parties may agree; but it is an agreement upon an irrelevant issue.
  3. [72]
    In Pharmacy Board of Australia v Coghill[64] the Tribunal explained that where s 124(1)(g) refers to the Registrant having “been convicted of an offence against an Act of the State, the Commonwealth or another State related to the practise of the Registrant’s profession”, the words underlined “qualify the Act not the conviction or the offence”.  The Tribunal found that this was apparent from the examples provided in subparagraphs (i) to (iv), each of which concern particular legislation.  
  4. [73]
    The joint submissions make the same error as was identified in Coghill.  They fail, at least directly, to pose the correct question; which is whether Mr Jattan has been convicted of an offence against an Act related to the practice of the Registrant’s profession.
  5. [74]
    The offence of which Mr Jattan was convicted was created by s 285A of the Regulation.  The reference to “an Act” includes a reference to any statutory instruments made under the Act,[65] and would extend to Regulations made under such an Act.[66]  The Regulation is a statutory instrument made under the Health Act 1937.  The Health Act and the Regulation made under it is an Act related to the practise of pharmacy. Indeed, the Health Act is one of the Acts expressly referred to.[67]
  6. [75]
    Mr Jattan has, therefore, been convicted of an offence against an Act related to the practise of his profession, and a ground for disciplinary action is established.  
  7. [76]
    Mr Jattan was fined $1,000.  No conviction was recorded.  The conviction appears to relate to a single sale.  Whilst this would, of itself, support some disciplinary action being taken, when considered with the more serious conduct which establishes the second ground, it would not lead to any further sanction than that which would be imposed for the second ground.  
  8. [77]
    The conduct which constitutes the second ground is serious.  It was engaged in over a long period.  It involved both pharmacies in which Mr Jattan had an interest.  It involved numerous restricted drugs, including drugs liable to abuse or misuse.  It involved dispensing of drugs in circumstances in which the likelihood of misuse or abuse gave rise to the potential for physical harm.
  9. [78]
    In relation to Mr Jattan’s failure to record the dispensing of restricted drugs, the parties jointly submit that there is no evidence that he intentionally failed to record dispensing data, or that he did so for any gain for himself.
  10. [79]
    Similarly, in relation to the deletion of the data from the Broadbeach Pharmacy’s dispending records, the parties jointly submit that there is no evidence that Mr Jattan intentionally deleted that data.
  1. [80]
    That may be so, but any failure to record a significant number of sales over a prolonged period, and any deletion of a substantial number of dispensing records, again over a prolonged period, must be viewed very seriously.
  2. [81]
    The conditions which the parties jointly propose should be imposed upon Mr Jattan’s registration for the 12 month period during which they will be in force are appropriate.  They would require him to complete a 1 hour ethics seminar as part of his professional development.  The seminar would have to be approved by the Board. 
  3. [82]
    Apart from that educational condition, the other conditions require him to provide information to the Board, in a timely way, concerning his professional activities, and would facilitate the Board obtaining information from any pharmacy or hospital where he works for the purposes of monitoring his compliance with the conditions.
  4. [83]
    In that regard, however, proposed order 5(d) refers to Mr Jattan notifying the Board “of the commencement of employment in his own right”.  It seems to be incorrect to refer to him commencing employment in his own right.  It may be that the parties intended to address circumstances in which Mr Jattan may practice in a pharmacy in which he, or a related entity, has an interest and by which he is not engaged as an employee, as opposed to his being employed by others.  If so, that proposed condition should be redrafted.  A suggested condition has been included in the Tribunal’s proposed order set out at the end of these reasons.  
  5. [84]
    In determining whether the sanction jointly proposed by the parties ought be imposed by the Tribunal on the basis that it is appropriate and within an acceptable range for the conduct in all the circumstances, the main considerations in this case are whether a suspension for a period of 12 months is appropriate, and whether wholly suspending that suspension for 12 months is permissible and appropriate.
  6. [85]
    In the parties joint submissions they refer[68] to five previous cases in the Tribunal which have involved pharmacists dispensing beyond the extent necessary.[69]  They state that in each of those cases except one,[70] the practitioner was suspended for a period of between 3 and 6 months, with each suspension being wholly suspended. Regrettably that joint submission is inaccurate in two respects.  In one of the cases referred to, Kent, the suspension was for a period of 12 months, not 3 or 6; and it was suspended after 3 months, not wholly. In the event, however, Kent supports a suspension of 12 months as proposed being appropriate.
  7. [86]
    In their joint submissions, the parties also referred to a number of cases in which the failure to record dispensing had been considered.[71]  In Kinsey, the pharmacist was reprimanded.  The Board had sought a suspended suspension.  That sanction was considered excessive by the Tribunal because it found that the pharmacist’s conduct constituted unprofessional conduct, but not professional misconduct, under the National Law.  Here, Mr Jattan admits unsatisfactory professional conduct under s 124(1)(a) of the Disciplinary Proceedings Act.  However, the parties in neither the agreed statement of facts[72] nor the joint submissions,[73] descend into any detail of how the conduct constitutes unsatisfactory professional conduct by reference to the definition of that expression in the schedule to the Disciplinary Proceedings Act.  As defined, “unsatisfactory professional conduct” includes, for example, “professional conduct that is of a lesser standard than that which might be reasonably be expected of the registrant by the public or the registrant’s peers” and “misconduct in a professional respect”.  By comparison, “unprofessional conduct” is defined by the National Law to mean “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers”. 
  8. [87]
    Professional misconduct” is defined under the National Law to include “unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience” and “more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience”.
  1. [88]
    Therefore, it is not apparent as to whether the distinction drawn by the Tribunal in Kinsey would be drawn in this case when considering unsatisfactory professional conduct.
  2. [89]
    In Fitzpatrick, the pharmacist was given a wholly suspended 3 months suspension.  That case concerned the failure to record the sale of 377 units of PSE over a 13 month period.  The pharmacist also had dispensed an incorrect medication which had caused harm to a customer.
  3. [90]
    In Coffey, the registrant had been convicted on 16 charges of offences against the Regulation.  Six counts related to the sale of PSE; 9 counts related to the failure to attach labels to containers in which a S2 or S3 poison were sold; and 1 count related to the failure to record the details of a sale of PSE.  He had been fined $1400 with no conviction recorded.  The Tribunal imposed a 9 month suspension suspended after 3 months. 
  4. [91]
    The parties also referred to a number of cases in which conviction for an offence was a disciplinary ground.[74]  However, as the parties submit, the convictions were for a greater number of offences or for more serious offences in those cases, including in 2 cases[75] the indictable offence of producing a dangerous drug.  In Daddow, the pharmacist had been sentenced to 3 years imprisonment with immediate parole.  In Huynh, the pharmacist was sentenced to 2 years imprisonment to be suspended after 6 months for an operational period of 3 years.  The convictions in those cases were for offences of a quite different order than that here.
  5. [92]
    Mikhail concerned 14 offences against the Regulation of which 2 were failures to record transactions involving controlled drugs.  The pharmacist was fined $4,000 with no conviction recorded.  In the Tribunal he was reprimanded and undertakings concerning membership of a professional association, supervision of his practice and education were approved.
  6. [93]
    In Medical Board of Australia v Andersen[76] the Tribunal summarised a number of cases which concerned less serious sales of PSE than that in Daddow & Huynh and observed that those cases demonstrated that suspension was the primary sanction imposed.  The suspensions varied from 3 to 6 months with each being wholly suspended for operational periods of between 12 and 18 months.
  7. [94]
    In this matter, given the seriousness and extent of the conduct to which ground 2 relates, I am satisfied that a suspension of Mr Jattan’s registration for a period of 12 months, as agreed between the parties and jointly proposed, is appropriate.
  8. [95]
    The further question is whether that suspension can be and, if so, should be, itself suspended.
  9. [96]
    As to the latter, I am satisfied that wholly suspending the suspension for a period of 12 months is appropriate. It is not inconsistent with the sanctions imposed by the Tribunal in more or less similar cases. I accept the joint submissions that in all the circumstances a period of actual suspension is not required. The parties identify that the most recent offending conduct was in November 2008. Since that time there have been no notifications or complaints about his conduct and he was completed various courses to improve his professional practice. In addition to those matters identified by the parties, I consider the fact that Mr Jattan has agreed to pay the Board’s costs fixed in the sum of $60,000 to be relevant. In Psychology Board of Australia v Cook[76], a case in which the registrant had agreed to pay costs in the sum of $16,000, the Honourable J B Thomas AO sitting as a Judicial Member of the Tribunal described such agreement as to costs as being among the “mitigating factors and collateral disadvantages”. I respectfully adopt the Judicial Member’s reasoning. Mr Jattan’s agreement to pay $60,000 in costs is a collateral disadvantage to him and such agreement does mitigate the sanction which should be imposed. 
  10. [97]
    As to whether the suspension can be suspended, in their joint submissions, the parties state,[77] without elaboration, that “the Tribunal has a broad discretion to suspend a suspension”.  The statutory basis for that submission is not identified.
  11. [98]
    In Pharmacy Board of Australia v Tavakol[78] the Tribunal explained why it was that there was no power to suspend the operation of any of the actions authorised under s 196 of the National Law, including suspensions of registration.  It did so by identifying that the National Law did not contain any express power to suspend such actions, and it did not contain any mechanism for further dealing with a matter in the event that there was further conduct by the Registrant during the operational period of the suspension which gave rise to further grounds for disciplinary action.  The Tribunal compared the absence of any such mechanism with the Disciplinary Proceedings Act which contained a detail mechanism.
  12. [99]
    However, that decision says nothing about whether, upon the repeal of the Disciplinary Proceedings Act, the transitional provisions operate so as to permit the suspension of suspensions imposed in matters in respect of which the application of the Disciplinary Proceedings Act has been preserved.  The difficulty is in the mechanism for dealing further with a matter if the Registrant again transgresses.
  13. [100]
    Section 314 of the Health Ombudsman Act 2013 (Qld) provides:
    1. (1)
      This section applies to a matter for which QCAT had jurisdiction under the repealed HP(DP) Act before the repeal of that Act.  
    2. (2)
      If, immediately before the commencement, a proceeding for the matter had been started but not decided, QCAT may continue to hear and decide the matter under the repealed HP(DP) Act as if that Act had not been repealed.
  14. [101]
    Section 241(2)(g) of the Disciplinary Proceedings Act provides that one of the disciplinary actions which the Tribunal may take is suspending the Registrant’s registration for a stated time.  Section 247 of the Disciplinary Proceedings Act provided that a decision of the Tribunal to suspend a Registrant’s registration made under s 241(2)(g) could, if the Tribunal was satisfied that it was appropriate to do so in the circumstances, be wholly or partly suspended for an operational period of not more than 5 years.
  1. [102]
    However, the process by which a Registrant could be dealt with further was provided for in sections 248, 249 and 250.  Those provisions required that there be the referral to the Tribunal of a further disciplinary matter under s 126 of the Disciplinary Proceedings Act and, if the Tribunal found the grounds for that referral established, it could, in addition to dealing with that further matter, also deal with the earlier matter in which the suspended suspension had been given.  There cannot, however, now be any referral of any matter under s 126 of the Disciplinary Proceedings Act. Nor can there be any further dealing with the suspended matter under s 250.
  2. [103]
    Thus there is a tension between the power to suspend a decision, including a decision to suspend a Registrant’s registration, under the preserved s 247 of the Disciplinary Proceedings Act, and the lack of utility in exercising such a power given the repeal of sections 126 and 250.
  3. [104]
    In my view, that tension can be resolved by the Tribunal exercising its powers under s 114(b) of the QCAT Act to make ancillary orders.  Section 114(b) provides that the Tribunal’s power to make a decision in a proceeding, referred to as the primary power, includes a power to make an ancillary order the Tribunal considers appropriate for achieving the purpose for which the Tribunal may exercise the primary power.  In this case, the primary power is the power to suspend a decision under s 247(3) of the Disciplinary Proceedings Act.  The purpose for which the Tribunal may exercise that primary power is to permit, when it is appropriate in the circumstances to do so,[79] the suspension of a decision for a specified period such that the registrant may only have to comply with the suspended decision, or part of the decision, if the Tribunal at some future date finds that further disciplinary grounds have been established, which grounds relate to conduct of the registrant during the specified period.[80]
  4. [105]
    In Medical Board of Australia v Leggett[81] the Tribunal, without deciding the issue, expressed reservations as to whether s 114(b) would extend to making an order for suspension of registration under s 196(2)(d) of the National Law retrospective in its operation.  The Tribunal said that backdating a suspension when the Tribunal formed the view that it would have suspended the practitioner’s registration in other circumstances, but refrained from doing so for particular identified reasons, would not be the exercise of a power considered appropriate for achieving the purpose for which it could exercise the primary power.  Rather, the Tribunal would be recognising that the primary power, suspension, ought not be exercised in the particular circumstances of the case.  
  5. [106]
    The considerations here are different.  If the Tribunal accepts that a suspended suspension is appropriate and able to be ordered under the Tribunal’s primary power conferred by s 247 of the Disciplinary Proceedings Act, then any further order made under s 114(b) directed to giving utility to that order would be an exercise of a power for achieving that primary purpose.  
  6. [107]
    In my view, it would be appropriate for the Tribunal to make orders which would have the effect which the powers conferred under the repealed s 250 would have had.  That effect is that if Mr Jattan were to later be disciplined by the Tribunal in respect of professional conduct which occurred during the period during which his suspension was suspended, then the Tribunal would also be able to deal further with that earlier suspension.
  7. [108]
    The orders which the Tribunal proposes making are attached.  The parties will be given a period of 7 days to make submissions on them and the form which any final orders should take.

ANNEXURE A

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REGISTRY:     Brisbane

NUMBER:   OCR248-13 

Registrant's Board:

PHARMACY BOARD OF AUSTRALIA 

Registrant:

RIMAL JATTAN

DRAFT ORDER

IT IS THE ORDER OF THE TRIBUNAL THAT:

  1. The Tribunal finds that Mr Jattan has behaved in a way that constitutes unsatisfactory professional conduct pursuant to section 124(1)(a) of the Health Practitioner (Disciplinary Proceedings) Act 1999.
  2. Mr Jattan is reprimanded.
  3. Mr Jattan’s registration is suspended for a period of 12 months.
  4. Order 3 is wholly suspended (“the suspended decision”) for a period of 12 months ("the suspension period").
  5. If: 
    1. (a)
      any disciplinary matter is referred to the Tribunal under section 193 or section 193B of the Health Practitioner Regulation National Law or section 103 of the Heath Ombudsman Act 2013 (“the further disciplinary matter”);
    2. (b)
      the further disciplinary matter relates to conduct of Mr Jattan which occurred during the suspension period; and
    3. (c)
      the Tribunal decides that a ground for disciplinary action has been established in the further disciplinary matter;

the Tribunal, in addition to any disciplinary action taken in respect of the further disciplinary matter, after allowing the Board and Mr Jattan the opportunity to make submissions in relation to the suspended decision, may;

  1. (i)
    impose the suspended decision, or a part of the suspended decision on Mr Jattan; or
  2. (ii)
    if the Tribunal considers the imposition of the suspended decision under subparagraph (i) to be unfair – extend the period of the suspended decision by a period of not more than 1 year.
  1. The following conditions are to be imposed on Mr Jattan's registration for a period of 12 months from the date the Order is made:
    1. (a)
      Mr Jattan must, within the next 12 months when completing his professional development, complete at least one (1) hour of an ethics seminar to be approved by the Board and send confirmation of completion to the Board; ANNEXURE A
  1. (b)
    Mr Jattan must provide the Board with copies of all his records, and any other relevant documentation held by him as nominated by the Board, at such time or times as the Board shall determine, for the purposes of monitoring his compliance with the conditions of his registration.
  2. (c)
    Mr Jattan must provide the Board with a list of the names of employers, CEO's (or equivalent) and persons for whom he has worked as an employee, contractor or locum within seven (7) days of commencing such work, and shall within that time notify his employers or others engaging his services of the imposition of condition (e).
  3. (d)
    Mr Jattan must notify the Board of the commencement of practice as a pharmacist in his own right, in partnership, or in a pharmacy of which he or any entity related to him is an owner or has a financial interest, whether engaged as an employee, contractor or otherwise, and must advise of any and all changes in such practice, such notification to include the name and address of any company which he has taken an interest, or partner with whom he is working and the address or addresses from which he is practising.
  4. (e)
    Mr Jattan authorises representatives of the Board to contact and exchange information with any facility (whether it be pharmacy or hospital) where he works, at such time or times as the Board shall determine, for the purposes of monitoring his compliance with the conditions of his registration. 
  1. Pursuant to section 241(3) of the Health Practitioner (Disciplinary Proceedings) Act 1999, the review period for the conditions is 12 months from the date this Order is made. 
  2. Pursuant to section 242 of the Health Practitioner (Disciplinary Proceedings) Act 1999, details of the conditions are to be recorded on the Board's register for the period for which the conditions are in force.
  3. Mr Jattan must pay the Board's costs of and incidental to this proceeding as agreed in the sum of $60,000 to be paid within twelve (12) months of the Tribunal's final order. 

Footnotes

[1] Health Ombudsman Act 2013 (Qld) s 321. 

[2] Health Ombudsman Act 2013 (Qld) s 314. 

[3] Disciplinary Proceedings Act s 124(1)(a).

[4] Disciplinary Proceedings Act s 124(1)(g)(i). 

[5] Disciplinary Proceedings Act s 241(2)(a). 

[6] Section 241(2)(g).

[7]Section 247(1).

[8] Section 241(2)(b).

[9] Section 241(3)(a).

[10] Section 242(1)(a).

[11] [2013] QCAT 376 at [91] to [93].

[12] Joint submissions filed 27 July 2015, paragraph [19].

[13] (2015) 320 ALR 631; [2015] FCAFC 59.

[14] [2014] 253 CLR 58; [2014] HCA 2.

[15](1996) 71 FCR 285 at 290-291.  

[16]Whilst these proceedings continue under the Disciplinary Proceedings Act because the former Pharmacist Board of Queensland established under the, then, Pharmacists Registration Act 2001 prior to the commencement of the National Law on 1 July 2010, they are continued by the Pharmacy Board of Australia as a national Board established under s 31 of the National Law with effect from July 2010 (see also s86 of the Health Registration (Health Practitioner Regulation National Law) Amendment Act 2010 which omitted part 2 of the, then, Pharmacist Regulation Act 2001 under which the former Pharmacist Board of Queensland had been established.

[17]Pharmacy Board of Australia v Arulogun [2013] QCAT 685; Medical Board of Australia v Martin [2014] QCAT 304; Medical Board of Australia v Andersen [2014] QCAT 374; Medical Board of Australia v Fitzgerald [2014] QCAT 425; Pharmacy Board of Australia v Ciriello [2014] QCAT 459; Medical Board of Australia v Moodley [2014] QCAT 476; Medical Board of Australia v Doolabh [2014] QCAT 582; Clark v Medical Board of Australia [2014] QCAT 630; Radovic v Medical Board of Australia [2014] QCAT 631; Medical Board of Australia v Alroe [2014] QCAT 677; Psychologist Board of Australia v Golus [2015] QCAT 12; Pharmacy Board of Australia v McAllan [2015] QCAT 20; Chiropractic Board of Australia v Brubaker [2015] QCAT 30; Sharma v Medical Board of Australia [2015] QCAT 86; Aziz v Medical Board of Australia [2015] QCAT 99; Jose v Assistant Commissioner Michael James Condon [2013] QCAT 515; Queensland College of Teachers v Hayes [2013] QCAT 657; Crime and Misconduct Commission v Acting Deputy Commissioner Barron & Alexander [2014] QCAT 241; Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski (No.2) [2014] QCAT 488.

[18] [2004] FCAFC 72.

[19] CFMEU at [243].

[20] Barbaro at [23] and [39].

[21] Barbaro at [42].

[22] Barbaro at [29] and [32].

[23] Barbaro at [7].

[24] See CFMEU at [62]; [75]; [142]; [169]; [173]; [174]; [175]; [233]; [235]; [239]; and [240].

[25] CFMEU at [174] and [235].

[26] (2004) 220 CLR 129.

[27] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.

[28] Rich at [30].

[29] Rich at [32].

[30] Rich at [35].

[31] Rich at [37].

[32] CFMEU at [14], [75] and [173].

[33] CFMEU at [175].

[34] As advanced by the contradictor in that case.

[35] CFMEU at [153]; [205]; [206]; [212]; [218]; [221]; and [228].

[36] CFMEU at [189].

[37] CFMEU at [192]; [212]; [221]; [239]; [245]; and [253].

[38] Disciplinary Proceedings Act ss 240 and 241.  Similar provisions apply to former registrants: s 243.  See also section 196 of the National Law in respect of referrals brought under that legislation.

[39] National Law s 35(1)(j).  See also s 11(i) of the Disciplinary Proceedings Act.

[40] See also ss 84 and 85 in relation to settlements reached in compulsory conferenced and mediation.

[41] Legal Profession Complaints Committee v Love [2014] WASC 389.

[42] Ibid at [68] – [69].

[43] CFMEU at [142].

[44] [2012] NSWCA 317 at [13].

[45] CFMEU at [126]; [179]; [190]; [195]; and [226].

[46] Sections 11(e), 125, 127(1), 164 and 165.

[47] Sections 14, 15, 125, 171, 200 and 201.

[48] Sections 30(1), 30(2)(a), 125, 211, 240, 241 and 243.

[49] Section 128(1)(a).

[50] Section 128(1)(b).

[51] Section 11(1).

[52] Section 17.

[53] Sections 17(2)(c) and s 20(1). 

[54] Section 201(2).

[55] And other disciplinary action.

[56] Section 241(2).

[57] Section 134(1).

[58] Section 178(1).

[59] Section 134(4).

[60] Section 178(4)(a).

[61] Section 178(4)(b).

[62] Section 178(7).

[63] Compare CFMEU at [143] and [243].

[64] [2015] QCAT 27 at [14] to [18].

[65] Acts Interpretation Act 1954 (Qld) s 7(1).

[66] See the meaning of “statutory instrument” in s 7 Statutory Instruments Act 1992 (Qld). 

[67] Disciplinary Proceedings Act s 124(1)(g)(i).

[68] At paragraph 20(b).

[69] Pharmacy Board of Australia v Brenton [2011] QCAT 302; Pharmacy Board of Australia v Booy [2011] QCAT 522; Pharmacy Board of Australia v Donnelly [2011] QCAT 584; Pharmacy Board of Australia v Smith [2012] QCAT 186; Pharmacy Board of Australia v Kent [2012] QCAT 329.

[70] Brenton, in which the Tribunal approved the practitioner’s undertaking never to seek registration in the future. 

[71] Pharmacists Board of Queensland v Coffey [2008] QHPT 14 October 2008; Pharmacy Board of Australia v Kinsey [2012] QCAT 359; Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 552.

[72] Statement of agreed facts filed 7 August 2014, paragraph 66.

[73] Joint submissions filed 27 July 2015, paragraph 15.

[74] Pharmacy Board of Australia v Huynh [2013] QCAT 41; Pharmacy Board of Australia v Daddow [2013] QCAT 42; Lau v Pharmacists Board of Queensland unreported, Health Practitioner Tribunal, 27 October 2003; Lim v Pharmacists Board of Queensland [2001] HPT 008; Pharmacists Board of Queensland v Mikhail [2010] QCAT 621.

[75] Pharmacy Board of Australia v Huynh [2013] QCAT 42; Pharmacy Board of Australia v Daddow [2013] QCAT 41. 76  [2014] QCAT 374 at [39].

[76] [2014] QCAT 162 at [31]. 

[77] At paragraph 21(b).

[78] [2014] 112 at [38] to [50].

[79] Disciplinary Proceedings Act s 247(2).

[80] See also s 248 of the Disciplinary Proceedings Act as to the effect a suspended decision.

[81] [2015] QCAT 240 at [16] to [27].

Close

Editorial Notes

  • Published Case Name:

    Pharmacy Board of Australia v Rimal Jattan

  • Shortened Case Name:

    Pharmacy Board of Australia v Jattan

  • MNC:

    [2015] QCAT 294

  • Court:

    QCAT

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    18 Aug 2015

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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