Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2015
  4. Pharmacy Board of Australia v McAllan - [2015] QCAT 20

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pharmacy Board of Australia v McAllan[2015] QCAT 20

Pharmacy Board of Australia v McAllan[2015] QCAT 20

CITATION:

Pharmacy Board of Australia v McAllan [2015] QCAT 20

PARTIES:

Pharmacy Board of Australia

(Applicant/Appellant)

v

Brian McAllan

(Respondent)

APPLICATION NUMBER:

OCR294-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President

Assisted by:

Ms Kerrie Kensell

Ms Pamela Mathers

Mr Paul Murdoch

DELIVERED ON:

19 January 2015

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The respondent is found to have behaved in a way that constitutes unprofessional conduct.
  2. The respondent is reprimanded.
  3. The respondent is to pay the applicant’s costs of and incidental to these proceedings in a sum to be agreed or assessed.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the parties jointly submit that the respondent engaged in unprofessional conduct –  whether the conduct of the respondent amounted to professional misconduct

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the parties made joint submissions on sanction – whether the sanction is appropriate in all the circumstances of the case

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks a non-publication order – where the applicant does not outline a basis for which the Tribunal can make such an order –   whether it is appropriate for the Tribunal to make a non-publication order

Health (Drugs and Poisons) Regulation 1996 (Qld), s 273A, s 277, s 285A

Health Practitioner Regulation National Law (Queensland), s 5, s 156

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Medical Board of Australia v Andersen [2014] QCAT 374

Medical Board of Australia v Martin [2013] QCAT 376

NW Frozen Foods Pty Ltd v Australia Competition and Consumer Commission [2002] FCA 619

Ooi v Medical Board of Queensland [1997] 2 Qd R 176

Pearse v Medical Board of Australia [2013] QCAT 392

Pharmacy Board of Australia v Ciriello [2014] QCAT 459

112
Pharmacy Board of Australia v Heron [2011] QCAT 424

Pharmacy Board of Australia v Hung [2014] QCAT 148

Pharmacy Board of Australia v Kinsey [2012] QCAT 359

Pharmacy Board of Australia v Tavakol [2014] QCAT

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

  1. [1]
    The Pharmacy Board of Australia has referred disciplinary proceedings against Brian McAllan to the Tribunal.

The Allegations

  1. [2]
    The referral comprises three allegations being that Mr McAllan:
    1. sold pseudoephedrine (‘PSE’) in breach of s 273A of the Health (Drugs and Poisons) Regulation 1996 (Qld) (‘Regulation’);
    2. sold PSE in breach of s 285A of the Regulation;
    3. sold PSE in absence of a therapeutic need and in breach of s 277 and the terms of his endorsement as a pharmacist under ss 171 and 257 of the Regulation.
  2. [3]
    Mr McAllan concedes that the Board has proven each of the allegations; but not in respect of all the particulars of the allegations as referred.
  3. [4]
    The conduct the subject of the referral came to light when Queensland Health conducted an inspection of the Nerang Day and Night Pharmacy, at which Mr McAllan was employed, in May 2011. Under the Health Act 1932 (Qld) Queensland Health conducted an analysis of the Pharmacy’s records for the period from 1 January 2009 to 5 May 2011. Following this analysis and a show cause process, Mr McAllan’s endorsement under the Health (Drugs and Poisons) Regulation 1996 (Qld) to deal with any drugs and poisons containing PSE was suspended for six months from 15 December 2011.
  4. [5]
    Section 273A of the Regulation prohibits the sale of Schedule 3 poisons, such as PSE, unless the sale complies with the quality standard the pharmacist has adopted. The quality standard adopted by the Nerang Day and Night Pharmacy provided that:
    1. the sale of all PSE based products is to be recorded in Project STOP;
    2. records of PSE sales are to be recorded in the pharmacy’s dispensing system; and
    3. the pharmacy does not sell multiple packs of PSE products.
  5. [6]
    Mr McAllan admits that, without recording the sale in Project STOP, he sold 25 units of PSE to three different customers. This included dispensing multiple packs of PSE. Mr McAllan concedes that this conduct was in breach of the pharmacy quality standard and, therefore, in breach of s 237A of the Regulation.
  6. [7]
    Section 285A of the Regulation requires that a person who sells PSE must, at the time of the sale, record particulars of the sale. From 1 July 2010, that person must also keep those records in an online form accessible by the Chief Executive and Commissioner of
    Police. This is done by recording the relevant information in Project STOP.
  7. [8]
    Mr McAllan admits that his failure to record sales of PSE in Project STOP was in breach of s 285A of the Regulation.
  8. [9]
    Section 277 of the Regulation prohibits pharmacists from selling PSE unless they are reasonably satisfied the purchaser has a therapeutic need for it.
  9. [10]
    Mr McAllan sold 11 units of PSE to a customer in the period between 26 October 2010 and 13 April 2011. He admits he did not reasonably satisfy himself that the customer had a therapeutic need and that the quantity and frequency of the PSE dispensed was beyond what was necessary.
  10. [11]
    Between 19 November 2010 and 8 April 2011 Mr McAllan sold six units of PSE to a customer in circumstances where Project STOP recorded that the customer had previously been denied a sale of PSE on six different occasions. This indicates that other pharmacists did not consider the customer had a therapeutic need for PSE.
  11. [12]
    Mr McAllan admits that, in not considering the information available to him in Project STOP, he did not reasonably satisfy himself that the purchaser had a therapeutic need. Further, he admits the quantity and frequency of PSE dispensed was beyond what was necessary.
  12. [13]
    On one occasion Mr McAllan dispensed 20 units of PSE to a customer pursuant to a prescription. Mr McAllan had an obligation to reasonably satisfy himself the purchaser had a therapeutic need before dispensing the PSE. This fundamental obligation applies whether or not a customer has a prescription.[1] However, this is not to say a pharmacist cannot take into account a customer’s prescription when assessing whether the customer has a therapeutic need.
  13. [14]
    Project STOP also recorded that shortly before the prescription was written another pharmacy had dispensed 15 units of PSE to the customer.
  14. [15]
    Mr McAllan admits that he did not reasonably satisfy himself of the customer’s therapeutic need before dispensing the PSE to this customer.
  15. [16]
    Mr McAllan also dispensed one unit of PSE to a customer on 7 December 2010. Project STOP recorded that the customer had recently purchased PSE from another pharmacy and had also recently requested PSE products at a high frequency at a number of different pharmacies. Mr McAllan admits that, in dispensing the PSE, he did not reasonably satisfy himself of the customer’s therapeutic need.
  16. [17]
    It is common ground between the parties that Mr McAllan’s conduct constitutes unprofessional conduct. Relevantly, unprofessional conduct is defined as ‘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’.[2]
  17. [18]
    In Medical Board of Australia v Andersen[3] the Tribunal recently reviewed a number of cases concerning the disciplinary action taken against both medical practitioners and pharmacists who had prescribed or sold PSE inappropriately. That review indicates that in a number of cases the Tribunal found, or the registrant admitted, that the conduct constituted the more serious professional misconduct.
  18. [19]
    Notwithstanding professional misconduct being found or admitted in those cases, in the case of Ciriello, which is related to this matter, the parties jointly proposed that a finding of unprofessional conduct be made. The Tribunal was content to proceed on that basis having not heard full argument on whether the conduct might also constitute professional misconduct.[4] However, the Tribunal did observe that there were a number of features of the sales in Ciriello, particularly that many were supported by prescriptions issued by doctors, which distinguished it somewhat from other cases.[5]
  19. [20]
    As was pointed out in Pharmacy Board of Australia v Tavakol[6] considerations of parity arise in related matters. For those reasons, a finding of unprofessional conduct is appropriate in this matter.

Sanction

  1. [21]
    Having found Mr McAllan to have conducted himself in a way that constitutes unprofessional conduct, it is appropriate that the Tribunal impose a sanction.
  2. [22]
    The parties have made a joint submission on sanction. They seek orders that:
    1. Mr McAllan is found to have behaved in a way that constitutes unprofessional conduct.
    2. Mr McAllan be reprimanded.
  3. [23]
    There are sound public policy reasons as to why the Tribunal will not depart from an agreed sanction provided it is within a permissible range in all the circumstances of the case.[7]
  4. [24]
    The purpose of sanctioning a registrant is not to punish, but to protect the public, uphold standards of practice and to maintain public confidence.[8]
  5. [25]
    To assist the Tribunal exercise its discretion in sanctioning Mr McAllan the Board has drawn the Tribunal’s attention to the cases of Ciriello, Pharmacy Board of Australia v Hung,[9] Pharmacy Board of Australia v Heron[10] and Pharmacy Board of Australia v Kinsey.[11]
  6. [26]
    The Board submits that the range of sanctions in similar matters varies from a reprimand to suspension of registration, depending on the seriousness of the Registrant’s conduct.
  7. [27]
    The related matter of Ciriello concerned dispensing from the same pharmacy. In Ciriello the Registrant was alleged to have breached the same sections of the Regulation as Mr McAllan. Mr McAllan’s breaches may be described as being more numerous and perhaps more serious than the breaches by the Registrant in Ciriello.
  8. [28]
    However, an aggravating feature of Ciriello was that the pharmacist there was also the owner of the pharmacy. Other pharmacists working at this pharmacy, including Mr McAllan, had also been dispensing PSE in breach of the Regulation. Mr Ciriello’s obligations as a pharmacist extended beyond that of his personal conduct to the general management of his pharmacy.[12] The Tribunal suspended Mr Ciriello’s registration for a period of two months and imposed conditions on the his registration requiring him to enter into a mentoring relationship with an appropriate pharmacist.
  9. [29]
    The Registrant in Hung admitted to dispensing 1,653 PSE products in a three month period in breach of ss 273A and 277 of the Regulation. The Tribunal reprimanded him and imposed conditions on his registration requiring him to enter into a mentoring relationship with an appropriate senior pharmacist.
  10. [30]
    In Heron the Board, in referring the disciplinary proceedings to the Tribunal, relied on the dispensing of almost 650 PSE products to 10 different customers over a 23 month period. For each of these transactions the registrant was either the dispensing pharmacist or responsible for the pharmacist who dispensed these items. The Tribunal suspended his registration for three months with that suspension being wholly suspended for 12 months. The Tribunal is no longer able to impose a suspended suspension as a sanction.[13] The Tribunal also imposed education and mentoring conditions in Heron.
  11. [31]
    The Registrant in Kinsey did not keep records for the sale of 1,232 units of PSE and the records kept for the sale of 236 units of PSE were inadequate. Because inadequate or no records of PSE sales were kept, the Board was unable to ascertain whether the Registrant had dispensed PSE without a therapeutic need in breach of s 277 of the Regulation. The Tribunal reprimanded the registrant and sought an undertaking from him that he would engage in a mentoring program, increase his professional education and maintain membership of professional associations.
  12. [32]
    As in Hung, the Registrant did not breach all three sections of the Regulation as Mr McAllan has. However, the Registrant in Kinsey breached s 277 of the Regulation in a substantially more serious manner than Mr McAllan.
  13. [33]
    It should be noted that each of the sanctions compared above contained the imposition of mentoring conditions. These conditions, along with conditions requiring further education or supervision, function to protect the public while allowing a registrant to continue to practise.
  14. [34]
    The parties have not sought such conditions be imposed in this matter. This is not because they consider such conditions are inappropriate or unnecessary. Rather Mr McAllan has already, by way of immediate action, had these conditions imposed on his registration.
  15. [35]
    The immediate action was taken by the Board pursuant to s 156 of the National Law. Section 156 permits immediate action to be taken if the Board reasonably believes that because of the registrant’s conduct performance or health, he or she poses a serious risk to persons and it is necessary to take immediate action to protect public health and safety. The conditions imposed were:
    1. The practitioner must nominate a pharmacist as a mentor to be approved of in writing by the Board within 14 days from the date of these conditions being imposed.
    2. The practitioner must commence mentoring with the Board approved mentor within seven (7) days of receiving approval by the Board, of not less than two (2) hours per month for a period of six (6) months. The mentoring should focus upon ethical decision-making in a dispensing environment.
    3. The practitioner must provide a report in writing to the Board at the end of each two (2) month period and upon completion of the period of mentoring.
    4. The practitioner must organise and complete an up-skilling workshop/seminar in operational matters relating to Project STOP through the Pharmacy Guild to be approved of in writing by the Board within thirty (30) days from the date of the conditions being imposed.
    5. The practitioner must provide evidence in writing to the Board of the completion of the Project STOP workshop/seminar, within thirty (30) days of completing such workshop/seminar.
    6. The practitioner will, within twelve (12) months of the conditions being imposed, provide evidence to the Board of completion of a Board approved educational program addressing ethical decision-making, such programme to be nominated by the practitioner within thirty (30) days from the date of these conditions being imposed and approved of in writing by the Board.
    7. The practitioner must complete an oral legislation assessment set by the Board’s Pharmacy Advisor in Queensland within twelve (12) months from the date of these conditions being imposed.
    8. The practitioner must provide the Board with copies of all records, and any other relevant documentation nominated by the Board at such time or times as the Board shall determine, for the purpose of monitoring compliance with the conditions imposed upon the practitioner’s registration.
    9. The practitioner must notify, in writing, any current and future employers, CEO (or equivalent) of any health care facility where he works, of the conditions imposed on the practitioner’s registration within seven (7) days of their imposition (or prior to commencing any future employment).
    10. The practitioner must provide the Board with a list of the names of employers, CEO’s (or equivalent), and persons to whom he has notified of the conditions imposed on his registration.
    11. The practitioner must notify the Board of any and all changes in their practice, such notification to include the name and address of any employer, partner or person for whom or with whom the practitioner is working, and the address or addresses from which the practitioner is practising.
    12. The practitioner authorises representatives of the Board to contact and exchange information with each employer and hospital or facility where he works, at such time or times as the Board shall determine, for the purpose of monitoring compliance with the conditions imposed on the practitioner’s registration.
  16. [36]
    One may have some reservations about the imposition of conditions by way of immediate action which require a health practitioner to undertake mentoring, education, assessment and reporting over a twelve month period. Any conditions imposed by way of immediate action ought address the relevant risk specifically, and otherwise by the least onerous possible.[14]
  17. [37]
    Mr McAllan has complied with these conditions. If this had not been the case, the imposition of similar conditions would have been appropriate as part of the sanction in these proceedings to ensure the protection of the public.
  18. [38]
    In assessing the appropriate range of sanctions, the Board submits that Tribunal must also consider that Mr McAllan has satisfied the conditions imposed on his registration and has demonstrated insight into his conduct by making early admissions. I agree.
  19. [39]
    Mr McAllan submits that, in assessing the appropriateness of the sanction, the Tribunal ought to also consider that he has been a pharmacist for approximately 40 years, has not previously been subject to any adverse disciplinary action and has cooperated fully in the proceeding. He also submits that the Tribunal ought to consider that he has agreed to pay the Board’s costs of and incidental to the proceeding. Again, I agree.
  20. [40]
    The sanction jointly proposed by the parties is appropriate in light of the previous conditions having been imposed, complied with and removed. It is within the permissible range indicated by other cases.

Costs

  1. [41]
    The parties seek an order that Mr McAllan pay the Board’s costs of and incidental to this proceeding. This order is appropriate.

Non-publication Order

  1. [42]
    The Board also submits that it is appropriate in the circumstances of this case that an order be made pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to prohibit the publication of any document filed, or evidence given in this proceeding which would reveal the identity of any person other than the Registrant. The Board notes that the Tribunal made a similar order in Ciriello.
  2. [43]
    At the time of making the order in Ciriello it would not seem that the Tribunal was asked to consider QCAT Practice Direction No. 6 of 2011. That Practice Direction, in the form in which it applied at the time, provided that where the Tribunal makes a non-publication order under s 66 of the QCAT Act it would make the following directions:
    1. The parties must file in the Tribunal a redacted version of any material they have filed in the proceedings, which removes any material which may not be published pursuant to the non-publication order made by the Tribunal.
    2. The original version of the material filed in the Tribunal will be sealed and noted ‘Not to be copied or inspected without order of the Tribunal’.[15]
  3. [44]
    The Practice Direction seeks to strike a balance between facilitating open justice whilst prohibiting the publication of certain information in the limited circumstances set out in s 66 of the QCAT Act.
  4. [45]
    The Board has not identified any basis upon which the Tribunal would be satisfied that the order is necessary for any reasons identified in s 66(2). It points only to a similar order having been made in Ciriello.
  5. [46]
    Furthermore, if the order was made, the further direction to file redacted material may also be made. That would, no doubt, occasion considerable costs being incurred. The information contained in the material does not seem of such a personal kind such as to warrant non-publication as might, for example, extensive personal medical records.
  6. [47]
    In the circumstances, the Tribunal is not satisfied that a non-publication order is necessary, or desirable.

Footnotes

[1] Pharmacy Board of Australia v Ciriello [2014] QCAT 459 at [24] (‘Ciriello’).

[2] Section 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).

[3] [2014] QCAT 374.

[4] Ciriello [2014] QCAT459 at [5] – [6]. In Ciriello, as here, the Board had alleged professional misconduct and unprofessional conduct in the alternative.

[5] Ibid at [42].

[6] [2014] QCAT 112 at [55].

[7] Medical Board of Australia v Martin [2013] QCAT 376 at [91]-[93] citing NW Frozen Foods Pty Ltd v Australia Competition and Consumer Commission [2002] FCA 619.

[8] Ooi v Medical Board of Queensland [1997] 2 Qd R 176 at 177.

[9] [2014] QCAT 148 (‘Hung’).

[10] [2011] QCAT 424 (‘Heron’).

[11] [2012] QCAT 359 (‘Kinsey’).

[12] Ciriello [2014] QCAT 459 at [33].

[13] Pharmacy Board of Australia v Tavakol [2014] QCAT 112 at [36]-[49].

[14] Pearse v Medical Board of Australia [2013] QCAT 392 at [18].

[15] The Practice Direction has since been amended to permit such directions being made in the tribunal’s discretion.

Close

Editorial Notes

  • Published Case Name:

    Pharmacy Board of Australia v McAllan

  • Shortened Case Name:

    Pharmacy Board of Australia v McAllan

  • MNC:

    [2015] QCAT 20

  • Court:

    QCAT

  • Judge(s):

    Horneman-Wren DP

  • Date:

    19 Jan 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australia Competition and Consumer Commission v Colgate Palmolive Pty Ltd [2002] FCA 619
2 citations
Jump To
Cite 1 - [2002] FCA 619
Cite 2 - [2002] FCA 619
Medical Board of Australia v Andersen [2014] QCAT 374
2 citations
Jump To
Cite 1 - [2014] QCAT 374
Cite 2 - [2014] QCAT 374
Medical Board of Australia v Martin [2013] QCAT 376
2 citations
Jump To
Cite 1 - [2013] QCAT 376
Cite 2 - [2013] QCAT 376
Ooi v Medical Board of Queensland[1997] 2 Qd R 176; [1996] QCA 530
2 citations
Jump To
Cite 1 - [1997] 2 Qd R 176
Cite 2 - [1997] 2 Qd R 176
Pearse v Medical Board of Australia [2013] QCAT 392
2 citations
Jump To
Cite 1 - [2013] QCAT 392
Cite 2 - [2013] QCAT 392
Pharmacy Board of Australia v Ciriello [2014] QCAT 459
5 citations
Jump To
Cite 1 - [2014] QCAT 459
Cite 2 - [2014] QCAT 459
Cite 3 - [2014] QCAT 459
Cite 4 - [2014] QCAT 459
Cite 5 - [2014] QCAT 459
Pharmacy Board of Australia v Heron [2011] QCAT 424
2 citations
Jump To
Cite 1 - [2011] QCAT 424
Cite 2 - [2011] QCAT 424
Pharmacy Board of Australia v Hung [2014] QCAT 148
2 citations
Jump To
Cite 1 - [2014] QCAT 148
Cite 2 - [2014] QCAT 148
Pharmacy Board of Australia v Kinsey [2012] QCAT 359
2 citations
Jump To
Cite 1 - [2012] QCAT 359
Cite 2 - [2012] QCAT 359
Pharmacy Board of Australia v Tavakol [2014] QCAT 112
4 citations
Jump To
Cite 1 - [2014] QCAT 112
Cite 2 - [2014] QCAT 112
Cite 3 - [2014] QCAT 112
Cite 4 - [2014] QCAT 112

Cases Citing

Case NameFull CitationFrequency
Aziz v Medical Board of Australia [2015] QCAT 992 citations
Health Ombudsman v Dalziel [2017] QCAT 4422 citations
Pharmacy Board of Australia v Jattan [2015] QCAT 2941 citation
Pharmacy Board of Australia v Louis [2015] QCAT 2423 citations
Sharma v Medical Board of Australia [2015] QCAT 861 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.