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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Needham  QCAT 315
Occupational regulation matters
2 September 2020
2 September 2020
Judicial Member Robertson
Ms Karalyn Huxhagen
Ms Kerrie Kensell
Mr Paul Murdoch
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the respondent was a pharmacist – where the respondent dishonestly obtained quantities of controlled drugs from a pharmacy without valid endorsement for the purpose of self-administration – where the respondent did not engage in the proceedings – whether the Tribunal make orders proposed by the applicant
Health Ombudsman Act 2013 (Qld)
National Law S 41
Health Ombudsman v Ahmad  NSWCATOD 103 Health Ombudsman v CLT  QCAT 378
Director of Proceedings on behalf of the Health Ombudsman
REASONS FOR DECISION
- On 23 June 2019, the applicant Director referred these disciplinary proceedings to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (the Act). The referral contained six allegations of fact which the applicant submits amounts to professional misconduct and/or unprofessional conduct as defined in section 5 of the National Law. The respondent filed a response on 16 August in which he admits all the allegations. He has also signed a Statement of Agreed Facts. He has not filed a submission in these proceedings.
- At all material times, the respondent was registered as a pharmacist with the Pharmacy Board of Australia (the Board); a health service provider as defined by section 8 of the National Law; subject to the codes and guidelines approved by the Board including the Code of Conduct and the Code of Ethics; subject to the requirements of the Health (Drugs and Poisons) Regulation 1996 (Qld) (Poisons Regulations); and between January 2013 and 7 February 2013 was employed as the managing pharmacist at the Hope Island Pharmacy.
- The respondent was born on 24 July 1981, so is presently 39 years of age. He holds a number of tertiary qualifications from Griffith University including a Bachelor of Pharmacy and a Masters of Pharmacy which he obtained in 2007. He received a number of academic awards and appears to have been an exceptional student. He was first registered by the Board on 6 June 2008. He was employed as the managing pharmacist at Hope Island Pharmacy in 2009.
- Since ceasing that employment, he has not worked as a registered pharmacist.
The Relevant Conduct
- Given the respondent’s agreement to the Statement of Facts it is unnecessary for me to descend to the details of his conduct specified in that document and in the documents in the hearing brief.
- As noted, in his response to the referral he has admitted all allegations.
- Allegation 1, in summary is that between 6 January 2012 and 7 February 2013, he dishonestly obtained quantities of controlled drugs from the Pharmacy without valid endorsement for the purpose of self-administration. His conduct came to light as the result of a series of notifications to AHPRA in February 2013. The respondent correctly describes the conduct set out in allegation 1 as “the primary offending conduct”. He obtained a large quantity of controlled drugs (predominantly Morphine but also Dilaudid, Pethidine, Physeptone and Oxycodone, OxyNorm and MS Contin) by ordering them from a wholesaler, or another pharmacy, on behalf of the Hope Island Pharmacy. He took possession of the drugs and took them home to self-administer.
- The applicant describes the amount of Morphine dishonestly obtained over the 13 months as “staggering”. I agree with that description. On 19 March 2013, the respondent was interviewed by two Inspectors under the Health Act 1937, in which he states repeatedly that the obtaining of the drugs was for personal use. The quantity of Morphine alone was 1750 vials of varying strengths. Included in that number were 1160 vials of Morphine Tartrate 120mg 1.5ml. On the respondent’s account, he must have been using approximately 3 vials a day of Morphine Tartrate. The referral proceeds on the basis that the respondent was using the drugs personally and the Tribunal has no basis to go behind that allegation. It is unusual, to say the least, that he was able to hide what must have been a very serious addiction, and carry out his duties throughout this period.
- Allegation 3 relates to the respondent’s failure during the same period, on 51 occasions, to record the controlled drugs he had ordered in the Controlled Drugs Book held at the Pharmacy.
- On 27 February 2013, a search warrant was executed at the respondent’s home and a quantity of controlled and restricted drugs were located including 31 empty Dilaudid ampules for which he did not have a valid prescription or clinical indication, and which he had either self-administered or intended to do so, contrary to the Poisons Regulations. Again, the referral proceeds on the basis that the applicant accepts that his possession of these drugs was for self-administration. This conduct is the subject of allegation 2.
- Allegation 4 relates to 31 occasions during the same period when he permitted an unauthorized person (his girlfriend) to enter details of controlled drugs he had dishonestly obtained to enter details in the Controlled Drugs Book.
- Allegation 5 relates to the period from 2 January 2013 to 29 January 2013, where the respondent failed to enter details of controlled drugs dispensed by him to clients of the Pharmacy into the Controlled Drugs Book on 82 occasions.
- Allegation 6 relates to an incident at a friend’s house on 20 July 2016 when he was intoxicated and refusing to leave the yard of the premises. On 2 August 2016, he was convicted of Trespass under the Summary Offences Act 2005 and fined $350.
- Since the facts the subject of allegations 1-5 were revealed, the respondent has been subject to a number of interventions by the Board, which included imposition of conditions that he not practice until he received the approval of the Board and not be present at any pharmacy without the presence of another pharmacist. There were also conditions imposed relating to his fitness to practice because of what was a very significant Opioid dependence. He breached various conditions during the intervening period, including failing to attend urine drug screening, and on 27 February 2014, having illicit drugs Amphetamine, Methylamphetamine and MDMA in his urine sample. His responses to the Board could be described as self-serving and unconvincing. In 2015, the health panel of the Board found that the respondent had a health impairment, and further conditions relating to negative drug screening and evidence of on-going psychological or psychiatric treatment were imposed on his registration. In December 2015, he submitted a request to return to work and he then worked as a Pharmacy Assistant at a pharmacy located at Tweed Heads from December until May 2016.
- He has been unemployed since. On the same day that he committed the offence of trespass, he was admitted to the Emergency Department of the Gold Coast City Hospital on an involuntary treatment order i.e. 20 July 2016, and was diagnosed with bipolar disorder (manic) with narcissistic traits. He had been previously admitted to the psychiatric unit of the same hospital in August 2014 suffering from a drug induced psychosis. He showed little insight; was uncooperative with staff in refusing diagnosis and treatment and in supplying samples for drug analysis. He eventually agreed to the administration of sodium valproate and his mood stabilized and he was discharged into the care of his mother and GP on 12 August.
- The Board then required him to be assessed by Dr Nigel Prior consultant psychiatrist and he attended the consultation with Dr Prior on 31 August 2016. Dr Prior had access to the hospital records and reports from the respondent’s own GP, psychologist and psychiatrist. In his report, he opined:
15.5. In summary I consider (the respondent) has a number of conditions that detrimentally affect or are likely to detrimentally affect his capacity to practice his profession as a Pharmacist. He has Substance Use Disorders involving opiates and amphetamines which are now in remission with appropriate treatment. He subsequently developed Drug Induced Psychosis which has resolved.
15.6. He currently has a diagnosis of a Bipolar Disorder, has a recent admission to hospital and remains on an Involuntary Treatment Order. He has unilaterally ceased the prescribed mood stabilizer. He has not seen his Psychologist or Psychiatrist for some months and therefore his compliance with treatment is poor. Therefore, I consider that (his) capacity to practice as a Pharmacist continues to be affected by these conditions….
- Dr Prior then proposed a number of strict conditions on his registration of the kind previously imposed by the Board.
- The respondent unfortunately thereafter disengaged from the health assessment process.
- His registration expired on 30 November 2016.
Characterisation of the Conduct
- The admitted conduct, especially in allegation 1, but also when viewed as a whole, undoubtedly amounts to unprofessional conduct - that is conduct substantially below the standard reasonably expected of a pharmacist who (in relation to allegations 1,3,4 and 5) was the managing pharmacist of the Pharmacy in which he was employed. His conduct breached many of the provisions of the relevant Code of Conduct and Code of Ethics in an egregious way and is admissible as evidence of what constitutes appropriate professional conduct or practice for a Pharmacist.
- The respondent acknowledged in his interviews with Inspectors that his conduct was unprofessional. He acknowledges this in the Agreed Statement of Facts by accepting the conduct summarized above.
- The admitted dishonest conduct in allegation 1 spanned 13 months so this was no momentary lapse of judgment. Despite his obvious opiate addiction and “staggering” level of use of the drugs taken by him, he was still able to act in a calculating way by attempting to interfere with records to hide his misconduct.
- It is clear professional misconduct for a pharmacist to dishonestly handle drugs of addiction contrary to the law and to the relevant Codes set out by the Board.
- The failure to keep proper records is also serious professional misconduct in that it cannot be separated from the respondent’s admitted conduct in relation to allegation 1.
- In Pharmacy Board of Australia v Kent  QCAT 329 at  the then Deputy President of the Tribunal Judge Kingham observed:
(Records) are intended to limit the risk of misuse and abuse of medications for non-therapeutic purposes. Inattention to these requirements is unsatisfactory professional conduct, falling well below the standard that might be expected of Mr. Kent.
- The facts here are much more serious. The failure to keep records in breach of the law, was designed to conceal the respondent’s own misconduct in dishonestly obtaining drugs of addiction from the Pharmacy for his own use over a lengthy period. It is compounded by his admitted behaviour in relation to allegation 5 in which he did not complete the relevant records in relation to drugs dispensed to the public.
- I am satisfied that the respondent’s conduct alone in relation to allegation 1 but also in relation to all allegations (particularly those set out in 1-5 which could be described as a course of misconduct) amounts to professional misconduct.
- The principles underpinning a disciplinary sanction consequent upon a finding of professional misconduct against a health service provider are well known. The paramount principle is that the safety and health of the public are paramount.
- These proceedings are protective and not punitive. A sanction must be proportionate and designed as well to maintain proper professional standards and to denounce such behaviour when it is proved, and to deter others that may be of a like mind. It is also designed to maintain public confidence in a profession that is central to the protection of the health and safety of the public. Clearly demonstrations of remorse and a willingness to address the causes of the offending behaviour are factors that play into the formulation of an appropriate sanction in a particular case.
- As the respondent is no longer registered, the Tribunal’s powers are limited to those set out in section 107 of the Act.
- I agree with the applicant that had the respondent still been registered, his conduct is so serious as to warrant cancellation of his registration.
- The conduct here is quite similar to that in Health Ombudsman v CLT (CLT). He was a senior pharmacist who misappropriated 724 tablets of oxycodone of various strengths over a 9-month period. He also falsified records, and his conduct was aggravated in that he only admitted during the disciplinary proceedings that his original contention that he had taken the drugs for his partner was not true and that primarily, the drugs were used by him. The Health Ombudsman originally contended for cancellation with disqualification for a period of 12 months, but, subsequent to the hearing, his registration lapsed. The cases referred to in the decision support the general proposition that dishonestly obtaining large quantities of Schedule 4 and 8 drugs over an extended period with related record keeping failures is conduct that will usually warrant the cancellation of the registration of a pharmacist.
- Similarly, to CLT, the very serious conduct of the respondent occurred a long time ago. He last worked as a registered pharmacist in February 2013 so a period of over 7 years have since elapsed. Almost 3.5 years have elapsed since his registration lapsed. CLT also had an addiction to opiates, but by the time of the hearing 5 years after the conduct the subject of the referral, he was found to have insight and to be addressing his health issues. The respondent has shown times of compliance with Board conditions, and indeed the Board has given him every opportunity to address his impairments which are clearly connected with his misconduct. The problem for him is that he has lapsed on a number of occasions, and after the 2016 assessment by Dr Prior he disengaged from the health assessment process. It follows that the Tribunal has no current evidence as to his health status.
- He did co-operate with investigators at the start of the process and with the Board and regulator since but that ceased in 2016. In relation to these proceedings he shows some insight and considerable co-operation by admitting the conduct and joining in an agreed statement of facts. I agree with the applicant that there is no need to impose any further period of disqualification. He will have to convince the Board that he is no longer impaired and is fit to practice if indeed he does decide to apply for registration in the future.
- As noted earlier, he was able to work as a pharmacist assistant during the intervening period. Protection of the public in all the circumstances requires the order of sanction to include an order pursuant to section 107(4)(b) of the Act that he be prohibited from working in any capacity in a pharmacy where he might have access to controlled drugs. By reference to page 12 of the Guidelines for dispensing medicines published by the Board in September 2015, which permit registered pharmacists to be “assisted in the preparation, dispensing and supply of medicines”; and, by reference to page 5 of the Guidelines and a note under section 1. “The dispensing process”; which states that such assistance may include “assembling medicines”; I am satisfied that if not prohibited specifically from doing so, it would be possible for the respondent to work as a dispensary assistant/technician and have access to the same drugs the subject of allegation 1 in circumstances in which the Tribunal has no evidence of his present state of health.
- Such an order is justified by reference to the paramount principle. Although the Guidelines provide considerable oversight by a registered pharmacist, in the real world, a person in the position of an assistant with health impairments could act in a way that was inconsistent with the protection of the health and safety of the public. This is especially so in this case where the respondent has had considerable impairments that (a) contributed substantially to his initial misconduct and (b) contributed to the various lapses outlined above leading up to his disengagement in late 2016.
 Hearing Brief (HB), Part C behind Tab 5.
 HB, Tab 7, signed by respondent dated 2 April 2020.
 HB, page 297.
 Agreed statement of facts, paragraph 33.
 National Law, s 41.
 Health Ombudsman v CLT  QCAT 378 (CLT) and HO v Ahmad  NSWCATOD 103.
 The Act, section 4.
 For a general discussion of these principles see CLT.
 Ibid  and at .
- Published Case Name:
Health Ombudsman v Needham
- Shortened Case Name:
Health Ombudsman v Needham
 QCAT 315
02 Sep 2020