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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v JSP  QCAT 334
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
Occupational regulation matters
3 September 2020
On the papers
Judicial Member D J McGill SC
Ms Suzanne Harrop
Mr Andrew Foote Petrie
Ms Kerrie Kensell
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFFENCE – professional misconduct – practitioner stole restricted and controlled drugs from employer – false entries in controlled drug register – unlawful possession of drugs and paraphernalia – registration surrendered – sanction – non-publication order made
Health Ombudsman Act 2013 s 103(1)(a), s 104, s 107
Queensland Civil and Administrative Tribunal Act 2009, s 66
Cutbush v Team Maree Property Service  QCATA 89
Health Care Complaints Commission v Do  NSWCA 307
Health Ombudsman v DeCelis  QCAT 140
Health Ombudsman v Kimpton  QCAT 405
Health Ombudsman v NLM (No 2)  QCAT 366
Legal Services Commissioner v Madden (No 2)  1 Qd R 149
Legal Services Commission v XBV  QCAT 332
Medical Board of Australia v Waldron  QCAT 443
Pharmacy Board of Australia v Chrenowski  SAHPT 26
Pharmacy Board of Australia v Christie  QCAT 291
Pharmacy Board of Australia v Dougherty  SAHPT 6
Pharmacy Board of Australia v Thomas  QCAT 637
Office of the Health Ombudsman
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
- This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with the Act I sat with assessors Ms S Harrop, Mr A F Petrie and Ms K Kensell.
- The respondent was at the relevant times a registered pharmacist, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (“National Law”). The applicant alleges that the respondent engaged in professional misconduct in that, while registered, he misappropriated restricted and controlled drugs, was in unlawful possession of them, and self-administered controlled drugs not prescribed for him, and engaged in unprofessional conduct, in that he made false entries in the controlled drugs register at the pharmacy where he worked.
- The parties have provided the Tribunal with an agreed statement of facts, and an agreed bundle of documents. The respondent, who has not been legally represented in this proceeding, admits the facts in that statement. The applicant has provided written submissions to the Tribunal. The respondent has sent a letter to the Tribunal, explaining some background, and indicating that he is working in a field other than health care, and intends to pursue a different career. The hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) s 32.
- The Tribunal accepts the facts set out in the agreed statement of facts. They, and some additional information before the Tribunal, may be summarised as follows: The respondent was born in 1986 and is now 34. He was first registered as a pharmacist in 2011 and worked for some time in a variety of rural or remote locations. At one stage he moved interstate and worked in positions in hospitals. While there in 2016 there were complaints of discrepancies identified in record keeping for some drugs of dependency, which never resulted in any definite conclusion.
- At the end of November, the respondent took a locum position at a remote town in Queensland, where he worked as pharmacist in charge. A little over two weeks later, he took an overdose of oxycodone, and was found unconscious. He was revived by ambulance paramedics. The next day his employment was terminated when his employer attended the pharmacy and found him not in a fit state to work. Police searched his residence and found a quantity of drugs which were not labelled, and for which he had no prescriptions. This was a 200 ml bottle of morphine prescribed for a patient who had died, which ought to have been destroyed; 4 broken vials of morphine; 12 tablets of oxycodone; 50 tablets of diazepam; 25 tablets of nitrazepam; and 22 capsules of phentermine. They also located drug paraphernalia. Further investigation revealed a number of false entries in the controlled drug register. The respondent was charged with 9 offences, 5 counts of unlawful possession of dangerous drugs, one of failing to properly dispose of a needle and syringe, one of possessing utensils and pipes, one of making a false entry in a record, and one of stealing as a servant. On 7 March 2017 he pleaded guilty to all those offences, and was fined.
- On 19 December 2016 the applicant received a notification from the respondent’s former employer, which was also referred to AHPRA. Following a conversation with an officer of AHPRA, on 5 January 2017 the respondent surrendered his registration. He remains unregistered. The respondent has received medical treatment which he found helpful, spent some time helping his parents, and then obtained employment in another field. He has advised an intention to develop a career away from health care.
- The applicant’s case is advanced on the basis of four allegations:
- (a)Allegation 1: Unlawful possession of the controlled drugs and restricted drugs.
- (b)Allegation 2: Stealing the controlled drugs from his employer.
- (c)Allegation 3: Making false entries in the controlled drug records.
- (d)Allegation 4: Self-administration of unprescribed Schedule 8 controlled drugs.
- It was submitted that Allegation 3 amounted to unprofessional conduct, while the other three allegations amounted to professional misconduct. The applicant sought decisions to that effect, and an order that the respondent be reprimanded. The respondent does not dispute the allegations, and in his letter admitted that he was guilty of every charge that had been laid against him. His letter attributed his behaviour to social isolation and suggests undetected mental health issues at the time. There is however no medical evidence of any mental health issue, and an investigation by AHPRA into whether the respondent had an impairment was abandoned when he surrendered his registration. He indicated in his letter that the overdose was an attempt at suicide, although when revived he was embarrassed and claimed that it was an accident.
- In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant.
- I am conscious of the definition of “professional misconduct” in the National Law, s 5. This case is an example of dishonesty in relation to the pharmacy where he was employed. It involved a serious breach of trust on his part. There are other matters where stealing from an employer has been characterised as professional misconduct. In some cases, painkillers have been taken in an exercise in self-medication for a genuine painful condition, but it appears that in this case the drugs were taken for recreational purposes.
- In Pharmacy Board of Australia v Thomas  QCAT 637 Kingham DCJ, the then Deputy President, said at :
While conviction for an indictable offence is a ground for taking disciplinary action, this does not mean the purpose of disciplinary proceedings is to punish that conduct further. Rather, it is an indication the professions expect their members to be law abiding. If a member of the profession commits a criminal offence punishable by imprisonment, this reflects on the reputation of the profession and may damage public confidence in it.
- It is important that pharmacists be able to be trusted to handle responsibly dangerous drugs which need to be available for medical purposes, but can easily be misused. For that reason, it is a very serious matter when that trust is breached. The falsification of drug records is also a serious aspect of his overall conduct. It is appropriate to find that the falsification was unprofessional conduct, and that the conduct the subject of the other allegations was sufficiently serious to justify a finding of professional misconduct.
- The applicant referred to this conduct having occurred soon after a complaint in respect of similar conduct in Victoria. That conduct is not before the Tribunal, and so far as appears has not been established by any Tribunal or other relevant body, or been admitted by the respondent. In those circumstances, I do not consider that it can properly be taken into account.
- As pointed out in the submissions for the applicant, the respondent’s conduct also breached provisions in the Code of Conduct for Pharmacists, and the Code of Ethics for Pharmacists, issued by the Pharmacy Board of Australia.
- It must be acknowledged that the respondent pleaded guilty to the criminal charges and cooperated with the applicant and in this proceeding. He has freely acknowledged his responsibility for the conduct in question, and voluntarily withdrew from the profession over three and a half years ago. He appears from the letter to display insight, although there is no other material as to his current rehabilitation.
- The applicant referred to some earlier decisions of this or another Tribunal. In Pharmacy Board of Australia v Dougherty  SAHPT 6 the respondent stole 84 tablets of dexamphetamine sulphate the property of his employer over a period of close to 2 years. At the time he had a drug problem, which he had been feeding in part in this way. He was undertaking drug rehabilitation. He was reprimanded and disqualified from applying for registration for a (backdated) period of two years.
- In Pharmacy Board of Australia v Chrenowski  SAHPT 26 the practitioner, while employed at eight different pharmacies, stole drugs of dependence from his employer and consumed them. This occurred over a period of 21 months. He also provided false information to the Board and its investigator and breached a condition of his registration. He had also lied to treating practitioners, leading to the provision by them of unduly positive reports. Although he claimed to be free from drugs, his registration was cancelled and he was disqualified from applying for registration for a period of three years from the suspension of his registration.
- In Pharmacy Board of Australia v Christie  QCAT 291 a pharmacist had been using restricted, controlled and addictive drugs in a number of periods, having obtained them from his employer using deceit, covering his tracks by creating false records. His conduct was largely self-reported, he had cooperated in the proceeding, undertaken rehabilitation including as an inpatient and surrendered his registration. He had re-trained and was working in a different field. He had a long history of misuse of drugs, and the Tribunal was not confident about his ultimate rehabilitation, which had been difficult. He was reprimanded and disqualified from applying for registration for three years, on top of over two and a half years already unregistered. The Hon J B Thomas QC said at  that past decisions “suggest that the usual response to misconduct of like seriousness is a ban from registration for a limited finite period, usually ranging between one to five years.”
- I am also aware of the decision of the Tribunal in Health Ombudsman v DeCelis  QCAT 140. A pharmacist obtained cocaine for his own use by ordering it for his employer’s pharmacy, without any legitimate reason, and altered records to cover his tracks. This occurred on a number of occasions over seven months, and stopped when he disclosed his conduct, quit his job and sought treatment. He did not disclose to the Board when charged with offences, but did not renew his registration, and had been unregistered for over three years, a factor the Tribunal considered important. A finding of professional misconduct was made, and he was reprimanded.
- The respondent is not currently registered, and has not been for three and a half years. That is a significant time out of the profession. He has indicated that he does not intend to return, but the possibility exists that he may change his mind. If he did, he would have to satisfy the Board of his fitness and suitability to practice, and it would be open to the Board to impose conditions on any future registration. In those circumstances, the protection of the public does not require any period of disqualification to be imposed, and indeed none is sought by the applicant. Given the serious nature of the conduct however it is appropriate to reprimand the respondent.
- The respondent has sought a non-publication order for his name, on the ground that his parents, to whom he is close, are unaware of the details of what occurred, and would be very upset to learn them. He said that such disclosure would punish them more than him. He did not claim that their physical or mental health or safety, or for that matter his own, may be endangered as a result, although any such publicity may be stressful to them if they are upset and embarrassed by what has occurred.
- The QCAT Act, s 66(2) authorizes a non-publication order if the Tribunal considers it necessary having regard to five specific matters, one of which is “(b) to avoid endangering the physical or mental health or safety of a person”, and another is “(e) for any other reason in the interest of justice.” The starting point is that the Tribunal operates in public, and the power to conduct all or part of a hearing in private should be strictly regulated: see Legal Services Commission v XBV  QCAT 332 at , where the Hon P Lyons QC pointed out that the Tribunal had a broader power to constrain the open court principle than is available to courts generally. That case concerned a barrister who had failed to notice in his brief a document fundamentally inconsistent with the client’s instructions, and had failed to appreciate the significance of a legal point raised by the matter. There was evidence that the respondent had been receiving treatment from a psychiatrist and a psychologist for a major depressive disorder, and there was a risk of suicide.
- A non-publication order was made, but under another Act, and on the basis that that provision gave a wider discretion than did the QCAT Act. Reference was made to the decision of J v L & A Services Pty Ltd (No 2)  2 Qd R 10, where the open court principle was discussed. Under that principle, as applied in courts, it was said at p 45 that “information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other collateral disadvantage.”
- In Medical Board of Australia v Waldron  QCAT 443 Sheridan DCJ noted that the discretion is to be exercised only if it was “necessary” and only where the circumstances came within one of the categories nominated. The fifth category, although expressed in broad terms, was to be interpreted as subject to that limitation. Her Honour referred to a number of authorities, most of which dealt with the open court principle in the context of a court. A limited approach to s 66(2)(e) was consistent with the approach adopted by the then President of the Tribunal, A Wilson J, in Cutbush v Team Maree Property Service  QCATA 89 at . His Honour noted that the approach in s 66 was underpinned by the tradition of open justice in courts, and continued:
 Open justice requires that nothing should be done to discourage the fair and accurate reporting of what takes place in the courtroom, unless there is some material before the court to show that it is reasonably necessary to prohibit the publication. The onus is on the applicant [for the order] to show special circumstances justifying the making of the order.
 Where the publication concerns identification of parties or persons affected by proceedings, the mere fact that the publication may produce ‘embarrassment or unfortunate financial effects’ is generally not a sufficient reason to prohibit publication, … . [citations omitted].
- In that case the fact that the information may have made it more difficult for the applicant to obtain a tenancy of other property in the future was not regarded as a sufficient ground for a non-publication order, even though he had succeeded in his appeal against an eviction order.
- In Health Ombudsman v NLM (No 2)  QCAT 366 Sheridan DCJ made a non-publication order in a matter which involved an impairment of the practitioner which was closely bound up with the relevant misconduct, although it was not an impairment matter, where there is a special statutory provision for confidentiality.
- At the time of the hearing there was no evidence of the existence of an impairment in the respondent, and the matter had not been found by AHPRA or the Board to be an impairment matter. Subsequent to the hearing however the respondent was invited to provide psychiatric evidence, since he was not legally represented, and did subsequently provide an assessment from a psychiatrist, dated 21 July 2020. The psychiatrist diagnosed a major depressive disorder, said to be in remission. It also supported the respondent’s assertion that he was not planning to return to pharmacy. Further, the psychiatrist expressed the opinion that publication of the respondent’s name could endanger his mental health. In the light of the contents of that evidence, the applicant advised that it did not oppose the application for non-publication.
- Although it is apparent from the cases that in the past the Tribunal has been reluctant to make a non-publication order, at least in the absence of clear evidence of real harm if one is not made, in cases where the practitioner has a mental health problem such an order has been made, on the basis outlined in NLM (No 2) above. Although the evidence of danger to his mental health is thin, the report does show that there was an impairment. Given the attitude now of the applicant, the Tribunal is prepared to make an order that the name of the respondent not be published.
- Accordingly, the decision of the Tribunal is as follows:
- The Tribunal decides that the conduct of the respondent, in respect of allegations 1, 2 and 4, amounted to professional misconduct as defined in the National Law.
- The Tribunal decides that the conduct of the respondent, in respect of allegation 3, amounted to unprofessional conduct as defined in the National Law.
- The Tribunal reprimands the respondent.
- The parties bear their own costs of the proceeding.
- Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication is prohibited, to the extent that it would identify the respondent, or enable the respondent to be identified, of: (a) the contents of a document or other thing produced to the Tribunal; (b) evidence given before the Tribunal; (c) any order made or reasons given by the Tribunal.
Health Ombudsman Act 2013 s 126. For their function, see s 127.
Health Ombudsman Act 2013 s 4(1).
Legal Services Commissioner v Madden (No 2)  1 Qd R 149 at .
Health Care Complaints Commission v Do  NSWCA 307 at ; Health Ombudsman v Kimpton  QCAT 405 at .
See for example Health Ombudsman v Jamieson  QCAT 172; Pharmacy Board of Australia v Christie  QCAT 291 at ; Health Ombudsman v Macdonald  QCAT 473; Health Ombudsman v DeCelis  QCAT 140.
Pharmacy Board of Australia v Booy  QCAT 522 at ; Pharmacy Board of Australia v Kent  QCAT 329 at .
See for example Pharmacy Board of Australia v Christie  QCAT 291 at  – .
- Published Case Name:
Health Ombudsman v JSP
- Shortened Case Name:
Health Ombudsman v JSP
 QCAT 334
Member D J McGill SC, Ms Suzanne Harrop, Mr Andrew Foote Petrie, Ms Kerrie Kensell
03 Sep 2020