Pharmacy Board of Australia v Louis
[2015] QCAT 242
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- Unreported Judgment
- Pharmacy Board of Australia v Louis[2015] QCAT 242
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Pharmacy Board of Australia v Louis[2015] QCAT 242
Pharmacy Board of Australia v Louis[2015] QCAT 242
CITATION: | Pharmacy Board of Australia v Louis [2015] QCAT 242 |
PARTIES: | Pharmacy Board of Australia (Applicant/Appellant) |
v | |
Robert Donald Louis (Respondent) |
APPLICATION NUMBER: | OCR131-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Horneman-Wren SC, Deputy President Assisted by Ms Kerrie Kensell Ms Pamela Mathers Mr Wayne Sanderson |
DELIVERED ON: | 19 June 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT –where registered pharmacist failed to dispense PSE to customers as required by the Health (Drugs and Poisons) Regulation 1996 (Qld) – where parties proposed joint sanction – where registered pharmacist has behaved in a way that constitutes unprofessional conduct Queensland Civil and Administrative Tribunal Act 2009 (Qld) Health Practitioner Regulation National Law Act 2009 (Qld), Health (Drugs & Poisons) Regulation 1996 (Qld), s 257, s 273A, s 277, s 285A Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [2002] FCA 619. Medical Board of Australia v Martin [2013] QCAT 376. Pharmacy Board of Australia v McAllan [2015] QCAT 020. Pharmacy Board of Australia v Ciriello [2014] QCAT 459. Pharmacy Board of Australia v Tavakol [2014] QCAT 112. |
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).
REASONS FOR DECISION
The Proceedings
- [1]On 20 June 2014 the Pharmacy Board of Australia referred disciplinary proceedings against Robert Donald Louis to the Tribunal. Mr Louis was formerly a pharmacist registered under, most recently, the Health Practitioner Regulation National Law.[1] Mr Louis was first registered as a pharmacist in Queensland in 1963. He surrendered his registration by letter dated 9 December 2013 to the Australian Health Practitioner Regulation Agency and he ceased to hold registration from 17 December 2013. Section 138 of the National Law permits disciplinary proceedings to be taken against a formerly registered person as if that person were still registered under the National Law.
- [2]The disciplinary proceedings relate to Mr Louis’ practice as a pharmacist between March 2009 and May 2011. During that time, Mr Louis worked on a part time basis at the Nerang day and night pharmacy in Nerang Queensland.
- [3]Mr Louis has admitted much of the conduct which the Board alleges against him; although he does not admit some of the particulars in respect of that admitted conduct. The matter has proceeded by way of an agreed statement of facts and an agreed bundle of documents. The parties also made joint submissions as to appropriate findings and orders which ought be made. Those findings include that Mr Louis has behaved in a way that constitutes unprofessional conduct as defined by s 5 of the National Law. In its referral, the Board had alleged that Mr Louis had engaged in conduct that satisfied the definition of professional misconduct within s 5 of the National Law or, in the alternative, unprofessional conduct.
Mr Louis’ Conduct
- [4]On 5 May 2011 an audit was conducted by Queensland Health which analysed the pharmacy’s dispensing data relating to pseudoephedrine (PSE) products. Following a show cause process, on 5 December 2011 Queensland Health issued a notice of decision to Mr Louis suspending his endorsement which he held pursuant to s 257 of the Health (Drugs & Poisons) Regulation 1996 to deal with schedule 4 restricted drugs and schedule 2 and 3 poisons in so far as it related to all drugs and poisons containing PSE as their active ingredient. The suspension was for a period of 12 months.
- [5]Queensland Health notified AHPRA and, on 9 November 2012, the Board took immediate action and imposed conditions on Mr Louis’ registration. Those conditions required Mr Louis to enter into mentoring arrangements; to organise and complete an up skilling workshop/seminar in operational matters relating to project STOP through the Pharmacy Guild and as approved by the Board; complete a Board approved educational program addressing ethical decision making; complete an oral legislation assessment set by the Board’s pharmacy adviser; and to provide to the Board ongoing information and records concerning his practice of pharmacy and to permit the Board access to information in that regard. Mr Louis satisfied all the conditions other than the completion of the oral legislation assessment which assessed that Mr Louis as not yet competent. That assessment was made on 31 October 2013; that is, approximately 12 months after the immediate action was taken against him and approximately 5 weeks before he surrendered his registration.
- [6]Section 273 of the Health (Drugs & Poisons) Regulation 1996 provides that where a pharmacy adopts a quality standard, a pharmacist must not sell a schedule 2 or 3 poison unless the sale complies with the quality standard. PSE is a schedule 3, pharmacist only, poison. The pharmacy had adopted a quality standard which set out the pharmacy’s attitude to the supply of PSE. That standard provided that all PSE based products were to be recorded in project STOP; PSE sales were to be recorded in the pharmacy dispensing system; and the pharmacy would not sell multiple packs of PSE products.
- [7]The Board had, in its guidelines on practice specific issues, endorsed the use of project STOP as a means of assisting pharmacists in determining whether PSE should be supplied to a person. It also required that all purchases be entered on project STOP and directed that only 1 package of PSE was to be supplied at a time, even on prescription, unless there were exceptional circumstances. The guideline provided that a failure to adhere to it may be considered unprofessional conduct.
- [8]Contrary to s 273A of the Regulation and the Board’s guideline, Mr Louis sold multiple packs of PSE to 4 persons. Three of those persons were sold 2 units each on 1 occasion, and the 4th person was sold 10 units, again on 1 occasion.
- [9]Mr Louis also sold PSE to 2 persons without recording the sales in project STOP. The 10 unit sale already referred to was one of the occasions on which Mr Louis did not record the sale in project STOP. Mr Louis’ other failures to record sales in project STOP related to 1 other person to whom he sold PSE on 9 separate occasions, between 9 August 2010 and 3 December 2010, without recording them.
- [10]Section 285A of the Regulation provides that a person who sells PSE must, at the time of making the sale, record particulars of the sale as an electronic record that is accessible online by both the Chief Executive and the Commissioner of Police. Mr Louis concedes that the failures to record the sales in project STOP to which I have already referred constituted breaches of s 285A.
- [11]Section 277 of the Regulation provides that a pharmacist must not sell PSE unless he or she is reasonably satisfied that the purchaser has a therapeutic need for it. Mr Louis concedes that he breached s 277 when he sold multiple packs of PSE to the 4 customers already referred to. He also concedes that he failed to assess or establish a therapeutic need prior to dispensing PSE to 4 other customers. To one customer he dispensed 24 units between 4 March 2009 and 5 January 2011. To the second he dispensed 10 units on 17 January 2011 and 10 units on 23 February 2011. To the third he dispensed 12 units between 15 June 2009 and 4 May 2011. To the fourth he dispensed PSE on 2 separate occasions on the one day, 4 March 2009.
- [12]In respect of the customer to whom he dispensed 24 units on one occasion, 9 August 2010, project STOP recorded that she had received an item of PSE from another local pharmacy. Mr Louis concedes that he did not reasonably consider that information before dispensing the PSE to that customer.
- [13]Moreover, Mr Louis concedes that the quantity and frequency with which he dispensed PSE to those persons was beyond the extent necessary to practice pharmacy and contrary to the terms of his endorsement as set out in s 257 of the Regulation.
- [14]The parties have jointly proposed a sanction which includes a finding, pursuant to s 196(1)(b)(ii) of the National law that Mr Louis has behaved in a way that constitutes unprofessional conduct. Such a finding is appropriate. In Pharmacy Board of Australia v McAllan[2] the Tribunal made a finding of unprofessional conduct, as jointly proposed by the parties, in respect of another part time pharmacist employed by the same pharmacy as that in which Mr Louis was employed. The conduct of Mr McAllan was also in breach of s 273A, s 285A and s 277 of the Regulation. The scope of the offending conduct was also similar to that in this case. In McAllan, the Tribunal noted that in another related case, Pharmacy Board of Australia v Ciriello,[3] the Tribunal had been content to proceed on the basis of a jointly proposed finding of unprofessional conduct not having heard full argument on whether the conduct might also constitute professional misconduct.[4] In Ciriello, as here and as in McAllan, the Board had alleged professional misconduct and unprofessional conduct in the alternative.
- [15]
- [16]For those reasons, a finding of unprofessional conduct is appropriate in this matter also.
Sanction
- [17]Having found Mr Louise to have conducted himself in a way that constitutes unprofessional conduct, it is appropriate that the Tribunal impose a sanction.[7]
- [18]The sanction jointly proposed by the parties is that there be an order recording the finding that Mr Louis has behaved in a way that constitutes unprofessional conduct and an order reprimanding him. Whilst the appropriate sanction to be imposed in any particular case is a matter to be determined by the Tribunal, the Tribunal has observed in a number of matters that 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.[8]
- [19]The orders proposed in this matter are appropriate. Mr Louis has surrendered his registration. He has, prior to that occurring, complied with the conditions which were imposed upon him by way of immediate action. He has demonstrated through those matters insight into his unprofessional conduct and he has cooperated in these proceedings. For all those reasons, there is no need for any further sanction beyond a reprimand to be imposed upon Mr Louis. That sanction would also maintain parity with the related matter of McAllan.
- [20]The parties also jointly propose an order that Mr Louis is to pay the Board’s cost of and incidental to the proceedings in a sum to be agreed or assessed. That too is an appropriate order and will be made.
- [21]The orders of the Tribunal shall be:
- Robert Donald Louis is found to have behaved in a way that constitutes unprofessional conduct.
- Robert Donald Louis is reprimanded.
- Robert Donald Louis is to pay the Pharmacy Board of Australia’s costs of and incidental to these proceedings in a sum to be agreed or assessed.
Footnotes
[1] Which applies as part of the law of Queensland by operation of the Health Practitioner Regulation National Law Act 2009.
[2] [2015] QCAT 020.
[3] [2014] QCAT 459.
[4] [2014] QCAT 459 at [5] – [6].
[5] [2015] QCAT 020 at [20].
[6] [2014] QCAT 112 at [55].
[7] Compare McAllan at [21].
[8] See Medical Board of Australia v Martin [2013] QCAT 376 at [91] – [93].