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- Pharmacy Board of Australia v The Registrant[2015] QCAT 477
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Pharmacy Board of Australia v The Registrant[2015] QCAT 477
Pharmacy Board of Australia v The Registrant[2015] QCAT 477
CITATION: | Pharmacy Board of Australia v The Registrant [2015] QCAT 477 |
PARTIES: | Pharmacy Board of Australia (Applicant) |
v | |
The Registrant |
APPLICATION NUMBER: | OCR272-10 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 17 September 2013 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Ms Pamela Mathers Ms Anne O'Farrell Mr Andrew Petrie |
DELIVERED ON: | 30 November 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES –HEALTH CARE PROFESSIONALS –PHARMACEUTICAL CHEMISTS –DISCIPLINARY PROCEEDINGS –MISCONDUCT IN A PROFESSIONAL REPSECT –where Registrant admitted to dispensing pseudoephedrine in a manner that constitutes unsatisfactory professional conduct –where Registrant shown remorse or insight –whether timing of admission is a relevant factor as to sanction –where suspension imposed on Registrant to be wholly suspended –where costs order imposed on Registrant Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld), s 123, s 124, s 241 Health Practitioner Regulation National Law Act 2009 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Ohn v Walton (1995) 36 NSWLR 77 Pharmacy Board of Australia v Booy [2011] QCAT 522 Pharmacy Board of Australia v Daddow [2013] QCAT 41 Pharmacy Board of Australia v Donnelly [2011] QCAT 584 Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 552 Pharmacy Board of Australia v Huynh [2013] QCAT 42 Pharmacy Board of Australia v Jattan [2015] QCAT 294 Pharmacy Board of Australia v Kent [2012] QCAT 329 Pharmacy Board of Australia v Naghdi [2012] QCAT 675 Pharmacy Board of Australia v Smith [2012] QCAT 186 |
APPEARANCES:
APPLICANT: | Mr C Wilson of Counsel, instructed by DLA Piper Lawyers. |
RESPONDENT: | Ms K Mellifont, instructed by Hede Byrne & Hall Pty Ltd |
REASONS FOR DECISION
The Conduct
- [1]The Pharmacy Board of Australia has referred disciplinary proceedings against the Registrant alleging that the Registrant has behaved in ways which constitute unsatisfactory professional conduct pursuant to s 124(1)(a) of the Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld) (Disciplinary Proceedings Act).[1] The conduct relates to the Registrant, through a pharmacy owned and operated by the Registrant, supplying pseudoephedrine (PSE) between the period from 1 January 2008 to 26 November 2009.
- [2]The pharmacy is located in a Queensland regional city. The Registrant had only been the owner and manager of the pharmacy for a period of three months prior to the 23 month period over which the PSE sales were made. The Registrant had, however, been employed in the pharmacy for approximately four and a half years prior to that.
- [3]The Registrant is an experienced pharmacist having held registration since 1981.
- [4]The pharmacy utilised electronic dispensing software and also used Project STOP. The pharmacy commenced participating in the use of Project STOP from its inception in 2005. At that time it was voluntary to participate in Project STOP; it subsequently became compulsory.
- [5]On 26 November 2009 inspectors from Queensland Health attended the pharmacy to obtain information relating to the dispensing of drugs and poisons. The Registrant was then, and subsequently, completely open and co-operative with the inspectors.
- [6]It is of some note that approximately five or six months prior to the audit of dispensing records by Queensland Health inspectors, the Registrant had established a good relationship with the Queensland Police Service and assisted the police in their endeavours to reduce improper PSE use. PSE is known to be sought after for diversion from its legitimate use to an illegal market where it is used in the manufacture of illicit drugs.
- [7]In June 2009, Queensland police officers suggested to the Registrant that the pharmacy should refuse to supply PSE to a list of customers supplied by the police. Subsequent to that, the Registrant did not dispense to any of those persons on the list.
- [8]The investigations by Queensland Health investigators established that in the period between 1 January 2008 and 26 November 2009 there had been 8,847 sales of PSE recorded in the pharmacy’s dispensing software. Of those 8,847 sales, 2,253 of them appeared on Project STOP as what are known as ‘sequential sales.’ Sequential sales are sales recorded one after the other where the customers attend together, or at times close together, to buy PSE. This suggests a trend or pattern of buying of commonly misused substances. These sequential sales form part of the conduct upon which the Board relies to establish unsatisfactory professional conduct.
- [9]The remainder of the conduct upon which the Board relies relates to sales of PSE to nine particular customers of the pharmacy. The facts in relation to each of the customers are as follows.
- [10]The pharmacy sold or dispensed 145 PSE items to Customer 1 over a 693 day period, some of the PSE was dispensed by the Registrant. On four occasions, sales were made to Customer 1 after the pharmacy or another local pharmacy had denied him a sale of PSE product. On three occasions, sales were made to him after the pharmacy or another local pharmacy had made what is known as a ‘safety sale of’ PSE to him. On some occasions, the pharmacy failed to record sales made to Customer 1 in Project STOP.
- [11]The pharmacy sold or dispensed 74 PSE items to Customer 2 over a 502 day period, some of which was dispensed by the Registrant. Five sales were made to Customer 2 after the pharmacy had made a safety sale of PSE to him. On occasions, the pharmacy did not record the sales made to Customer 2 in Project STOP.
- [12]The pharmacy dispensed or sold 73 items of PSE to Customer 3 over 547 days. Again, some was dispensed by the Registrant. On eight occasions items of PSE were sold to Customer 3 after the pharmacy or a local pharmacy had denied him a sale. On 11 occasions sales were made to Customer 3 after the pharmacy or a local pharmacy had made a safety sale to him. Again, on some occasions, the pharmacy did not record sales of PSE made to Customer 3.
- [13]66 items of PSE were sold or dispensed to Customer 4 over 480 days of which some was dispensed by the Registrant. On six occasions, items of PSE were sold to Customer 4 after the pharmacy had made a safety sale to him.
- [14]Customer 5 was sold or dispensed 53 PSE items over a 676 day period, some of which was dispensed by the Registrant. On one occasion a sale was made to Customer 5 after the sale of PSE to him had been denied by the pharmacy or another pharmacy. On two occasions he was sold PSE following a safety sale by the pharmacy or another pharmacy.
- [15]Customer 6 was sold or dispensed 46 PSE items over a 242 day period, some being dispensed by the Registrant. On two occasions sales were made to Customer 6 after he had been denied a sale of PSE by either the pharmacy or another local pharmacy.
- [16]Customer 7 was sold 44 PSE items over a 540 day period, with some again being dispensed by the Registrant. On seven occasions sales followed an earlier denial of PSE by the pharmacy or another local pharmacy. On four occasions there were sales made to him after a safety sale.
- [17]Customer 8 was sold 37 PSE items over 657 days, with some being dispensed by the Registrant. On two occasions he was sold PSE after an earlier denial of a sale of PSE by the pharmacy or a local pharmacy. On six occasions sales were made to him following a safety sale had been made by the pharmacy or another local pharmacy.
- [18]Customer 9 was sold 37 PSE items over 382 days of which some was dispensed by the Registrant. On two occasions sales followed denials of sale to him by another pharmacy. On five occasions items were dispensed to him after safety sales had been made by the pharmacy.
- [19]In respect of each of the nine customers the Registrant accepts that given the frequency of sales, denials of sales by other pharmacies, and safety sales by other pharmacy’s, that the objective circumstances in each instance the Registrant ought to have exercised additional care and judgement than that exercised in dispensing to them.
- [20]The Registrant admits that the facts demonstrate a pattern of conduct of inappropriate dispensing or selling of PSE items and thereby professional conduct of a lesser standard than that which might reasonably be expected of the Registrant by the public or the Registrant’s professional peers.
- [21]The Registrant also admits that the facts establish professional conduct that demonstrates incompetence or lack of adequate knowledge, skill, judgement or care in the practice of the Registrant’s profession, and having provided persons with health services of a kind that were excessive, unnecessary or not reasonably required for the persons’ wellbeing.
- [22]Each of those matters establish unsatisfactory professional conduct as defined by the Disciplinary Proceedings Act.[2]
Sanction
- [23]Having admitted that conduct, and that it constitutes unsatisfactory professional conduct, the Tribunal must determine what action to take against the Registrant pursuant to s 241 of the Disciplinary Proceedings Act.
- [24]The hearing before the Tribunal focussed upon what form of sanction was appropriate to take against the Registrant and, particularly, whether any suspension imposed by the Tribunal should itself be suspended, either in whole or in part.
- [25]On behalf of the Registrant, Ms Mellifont QC submitted that a short suspension, wholly suspended, would be an appropriate sanction to be imposed.
- [26]In its written submissions,[3] the Board submitted that an appropriate period of suspension was one of nine months to be suspended after two months for an operational period of 12 months. In oral submissions before the Tribunal, Mr Wilson of Counsel on behalf of the Board submitted that, notwithstanding what was sought in the written submissions, the Tribunal may see the sanction imposed in Pharmacy Board of Australia v Naghdi[4] as a comparable sanction. Ms Naghdi was suspended for a period of six months which suspension was suspended after one month for an operational period of 12 months.
- [27]Section 244(1)(a) of the Disciplinary Proceedings Act provides that in determining what action to take against a registrant, the Tribunal must have regard to the purposes of disciplinary action mentioned in s 123 of the Disciplinary Proceedings Act. Section 123 establishes that the purpose of disciplinary proceedings and disciplinary action are to protect the public; to uphold standards of practice within the health professions; and to maintain public confidence in the health professions.
- [28]In my view, those purposes must be borne firmly in mind when considering what might be seen as the central thesis of the Board’s submissions as to why a period of actual suspension should be imposed in this matter. That central thesis is that the admissions which were ultimately made by the Registrant came not at the outset of the proceedings, the Registrant having initially denied any inappropriate conduct on the Registrant’s own part or on the part of anyone in the pharmacy, but some two years afterwards when the statement of agreed facts was settled between the parties. Mr Wilson of Counsel for the Board submits that there has not, in those circumstances, been an ‘early plea’ and that this case ought be distinguished from those in which a registrant does not contest the proceedings from the outset. Mr Wilson submitted that ‘the thrust of my submissions revolves heavily around the fact that the Respondent’s behaviour, the Registrant’s behaviour throughout the course of this proceeding is such as to warrant censure, including a period of actual suspension.’[5]
- [29]In my view, care must be taken not to ‘censure’ a practitioner for his or her conduct of the proceedings. That is not the purpose of a disciplinary sanction as prescribed by s 123.
- [30]The conduct of the Registrant during the course of the proceedings may reasonably go to matters such as whether the Registrant has demonstrated remorse or shown insight into his or her conduct, and such matters may inform the overall consideration as to whether the purposes of disciplinary action will be achieved through a particular form of sanction being imposed. In that sense, matters such as remorse and insight tend to mitigate in favour of a Registrant.
- [31]However, if the Tribunal were to impose a particular, more harsh, form of sanction upon a registrant merely because admissions were made later in the day rather than earlier in the day and that this, of itself, should be ‘censured’, that, in my view, would be to fall into error.
- [32]In cases where a registrant, ultimately, makes the admissions upon which the Board is able to proceed to establish a disciplinary ground, the registrant is, in my view, to have the benefit of those admissions. Their timing and the form in which they are expressed may, as I have said, have some bearing upon whether the Tribunal considers that the protective purposes of disciplinary action require, for example, an actual period of suspension to be served. However, it is not to be concluded that such an actual period of suspension must be served because the ultimate admission demonstrates that earlier admissions could have been made.
- [33]The purpose of disciplinary proceedings is not to punish the Registrant for the conduct which he or she has engaged in; although sanctions imposed for the protection of the public no doubt work as a punishment upon the practitioner. Much less should disciplinary action be taken to punish a practitioner for the way in which he or she has engaged in the proceedings relating to the conduct.
- [34]To the extent to which other decisions have identified early admissions and co-operation with a board or investigators[6] as mitigating factors, they have, in my view, done so in the appropriate consideration of those matters in the overall context of determining an appropriate sanction in the circumstances of the particular cases. Where wholly suspended suspensions have been imposed in such cases, they do not establish that an absence of one or more of those particular mitigating factors would necessarily have resulted in a period of actual suspension being imposed.
- [35]By way of particular distinction in this matter, the Board identifies that an employed pharmacist in the same pharmacy was also disciplined. The sanction imposed in that case was a three month suspension wholly suspended for 12 months and the imposition of certain conditions. The Tribunal observed in that case that the pharmacist’s insight and remorse which he had demonstrated through his co-operation in the proceedings, and at no stage contesting the substance of the charges against him, was in his favour. No doubt it was. However, the Board does not submit in this case there has been an absence of co-operation other than in the time which elapsed before the admissions.[7] The Board also seems to point to the lateness of any detailed expressions of regret, those matters having only been contained in an affidavit of the Registrant filed shortly before the hearing. However, that timing is merely reflective of the evidentiary timetable agreed by the parties and set by the Tribunal.
- [36]There is also some criticism by the Board of those expressions of regret because the Registrant states that no excuse is being made for the conduct, whereas the Board submit that other statements in the affidavit offer such excuses. In my view, that criticism is misplaced. The Registrant does not seek to excuse the conduct by those other matters, but rather offers some explanation as to the circumstances in which the admitted conduct arose. That is quite different from seeking to excuse one’s own conduct.
- [37]As to the initial denial of wrongdoing and the departure from that, the registrant deposes to this having occurred ‘with the opportunity to reflect’ which led to an unreserved acceptance that the Registrant must not have shown adequate attention and judgement. Indeed, the Registrant describes it as ‘an awful realisation’ that although genuine attempts had been made to put in place good mechanisms for the responsible dispensing of PSE, these proved insufficient and the Registrant’s judgement failed. To acknowledge ‘an awful realisation’ is demonstrative of insight and remorse.
- [38]Of the sales of PSE from the pharmacy during the relevant period, the other pharmacist who has been disciplined sold slightly more than the Registrant, although the quantities are reasonably comparable. Both were experienced pharmacists.
- [39]The Board submits that an aggravating feature in respect of the Registrant’s case is that the Registrant owned the pharmacy and thereby profited from the sales. The Registrant, in her affidavit, strongly contests that the sales were motivated by profit. I do not understand the Board to advance the case against the Registrant on the basis that the Registrant deliberately engaged in the inappropriate dispensing of PSE with a particular profit motive in mind. Rather, the Board identifies that an owner of a pharmacy, with ultimate responsibility for the dispensing which occurs within it, will derive financial benefit from inappropriate sales of PSE. That can be accepted. However, in the absence of particular deliberate conduct motivated by financial gain, I do not consider this such a distinguishing factor as to warrant a greater sanction to be imposed upon the Registrant than the employed pharmacist in this case.
- [40]In my view, a sanction comparable to that which was imposed upon the employed pharmacist is appropriate in this case. In my view, such a sanction is also consistent with the sanctions imposed on pharmacists in other circumstances of inappropriate dispensing of PSE. A survey of the cases suggests that other than in more serious cases involving criminal conduct,[8] wholly suspended periods of suspension have most often been imposed.[9]
- [41]The case of Pharmacy Board of Australia v Naghdi[10] to which the Board referred as suggesting a potentially comparable sanction involved, in my view, more serious conduct. It involved a finding of professional misconduct under the Health Practitioner Regulation National Law Act 2009 (Qld). It also involved dispensing which included selling 60 packets of PSE to a particular customer over a period of 35 days and to selling 30 packets or more on a single day to each of several customers. This was much more indicative of the pharmacy in that case being targeted by drug runners than in this case.
- [42]In that regard, the Registrants co-operation here with Police Authorities is also in the Registrant’s favour. Whilst the Registrant must have been aware through her contact with police that the pharmacy was being targeted, the list of nine names which the police provided did not include any of the persons to whom the disciplinary matters relate. As noted, the pharmacy ceased supplying to those persons nominated by police.
- [43]In my view, an appropriate sanction by way of suspension is a suspension for a period of three months wholly suspended. An operational period for the suspension of 12 months would, in the ordinary course of events, be appropriate. However, for reasons which are no fault of the parties there has been a significant delay in the Tribunal in delivering its reasons in this matter. Had the reasons been delivered in a more timely way, the operational period of the suspension would already have passed. In those circumstances, I am of the view that the operational period for the suspension should be considerably reduced.
- [44]My preliminary view is that the suspension should be suspended for an operational period of three months. I will, however, invite submissions from the parties on that aspect of the sanction before formal orders are made, it having arisen out of the Tribunal’s delay and the parties not having been heard on it.
- [45]Since the hearing of this matter the Tribunal has delivered its decision in Pharmacy Board of Australia v Jattan[11] in which it considered the Tribunal’s powers to suspend a suspension imposed in a disciplinary matter arising under the Disciplinary Proceedings Act in circumstances in which that Act has been repealed. That resulted in the repeal of the provisions under which a suspended suspension could be further dealt with by the Tribunal if a registrant again had a disciplinary ground established against him or her. The Tribunal determined that it could make an appropriate order under its powers to make ancillary orders under s 114(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which would have had the effect which the powers conferred under the repealed s 250 of the Disciplinary Proceedings Act would have had.
- [46]The proposed orders are fashioned on the Tribunal’s findings in Jattan. As the parties have not been heard on those issues though, they should be provided the opportunity to make any submissions which they wish to make about the use of the Tribunal’s powers under s 114(b) to make such an order.
- [47]At the time of the hearing the Board also proposed that conditions be imposed upon the Registrant’s registration requiring the undertaking of mentoring and an educational programme related to ethical decision making. Those conditions were not opposed. However, given the passage of time since the hearing and the possibility that mentoring and education have already been undertaken, I will allow the parties to make any further submissions which they wish to make on those conditions.
Costs
- [48]The Board has sought its costs. The Registrant accepts that they ought to pay at least some of the costs of the Board. The Registrant contends, however, that the Board has sought to agitate issues which go beyond the agreed statement of facts and to pursue an actual period of suspension which the Registrant argues cannot be justified in all the circumstances. On that basis, the Registrant submits that the Tribunal might consider reducing the amount of costs which they are required to pay.
- [49]In my view, it is appropriate for the Board to have its costs. As observed above, the Registrant is not to be penalised through the imposition of a sanction in respect of the conduct of the proceedings. Whilst the Registrant is, in my view, entitled to have a sanction imposed on the basis that admissions were made, albeit well after the proceedings were commenced, the Board has, necessarily, occasioned greater costs than would have been the case if the admissions were earlier made. This is the corollary of admissions being made later rather than sooner.
- [50]The Board should have its costs of the proceedings. That is not to punish the Registrant, but to compensate the Board for the costs which it has incurred.[12]
- [51]In my view, the Board’s position as to an actual suspension was not a matter which was inarguable. It was not inevitable that a suspension imposed upon the Registrant would be wholly suspended. There was always to be a hearing on sanction. In my view, the Board’s costs should not be discounted on that basis.
- [52]The Registrant will be ordered to pay the Board’s costs of and incidental to the proceedings as agreed or as assessed on the standard basis for matters in the district court.
Non-publication
- [53]The Registrant has sought an order prohibiting publication of the contents of any document or thing produced to the Tribunal or any evidence given before the Tribunal that may enable the Registrant to be identified. The reason for this application is that, as noted above, the Registrant has provided assistance to police in relation to matters concerning the targeting of the pharmacy by drug runners. In my view, if either the pharmacist or the pharmacy is identified, it may endanger the pharmacist’s safety. I therefore consider it necessary to order non-publication of any document or thing produced to the Tribunal or evidence given to the Tribunal which may permit the identification of the Registrant or the pharmacy from which the Registrant practiced.[13]
Proposed Orders
- [54]The orders I propose are attached.
- [55]The parties are to make any submissions which they wish to make on the operational period of the suspension; the Tribunal’s power to use s 144(b) to make ancillary orders for a suspended suspension under the Disciplinary Proceedings Act; and any conditions to be imposed on the Registrant’s registration within 14 days.
ANNEXURE A
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL | |
REGISTRY: Brisbane NUMBER: OCR248-13 | |
Registrant's Board: | PHARMACY BOARD OF AUSTRALIA |
Registrant: | THE REGISTRANT |
DRAFT ORDER
IT IS THE ORDER OF THE TRIBUNAL THAT:
- The Tribunal finds that The Registrant has behaved in a way that constitutes unsatisfactory professional conduct pursuant to section 124(1)(a) of the Health Practitioner (Disciplinary Proceedings) Act 1999.
- The Registrant is reprimanded.
- The Registrant’s registration is suspended for a period of 3 months.
- Order 3 is wholly suspended (“the suspended decision”) for a period of 3 months ("the suspension period").
- If:
- 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”);
- the further disciplinary matter relates to conduct of the Registrant which occurred during the suspension period; and
- 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 the Registrant the opportunity to make submissions in relation to the suspended decision, may;
- impose the suspended decision, or a part of the suspended decision on the Registrant; or
- 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.
- The Registrant must pay the Board’s costs of and incidental to this proceedings as agreed or as assessed on the Standard basis for matters in the District Court.
Footnotes
[1]Formerly the Health Practitioner (Professional Standards) Act 1999 (Qld).
[2]See the definition of ‘Unsatisfactory Professional Conduct’ subparagraphs (a)(b) and (f).
[3]Paragraph 50.
[4][2012] QCAT 675.
[5]Transcript 1-10, lines 15 – 26.
[6]For example, Pharmacy Board of Australia v Booy [2011] QCAT 522; Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 552.
[7]Transcript 1-14 lines 30-33.
[8]Pharmacy Board of Australia v Daddow [2013] QCAT 41; and Pharmacy Board of Australia v Huynh [2013] QCAT 42.
[9]Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 552, three months wholly suspended for an operation period of 12 months; Pharmacy Board of Australia v Kent [2012] QCAT 329, three months wholly suspended for an operational period of 12 months; Pharmacy Board of Australia v Smith [2012] QCAT 186, six months wholly suspended for 12 months; Pharmacy Board of Australia v Donnelly [2011] QCAT 584, six months wholly suspended for an operational period of 12 months; Pharmacy Board of Australia v Booy [2011] QCAT 522, three months wholly suspended for 12 months.
[10][2012] QCAT 675.
[11][2015] QCAT at [95]-[107].
[12]See Ohn v Walton (1995) 36 NSWLR 77 at 79.
[13]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1)(2)(b).