Pharmacy Board of Australia v Swan
[2016] QCAT 475
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- Unreported Judgment
- Pharmacy Board of Australia v Swan[2016] QCAT 475
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Pharmacy Board of Australia v Swan[2016] QCAT 475
Pharmacy Board of Australia v Swan[2016] QCAT 475
CITATION: | Pharmacy Board of Australia v Swan [2016] QCAT 475 |
PARTIES: | Pharmacy Board of Australia (Applicant) v Hayden Swan (Respondent) |
APPLICATION NUMBER: | OCR045-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Sheridan, Deputy President Assisted by: Dr G Neilson Ms M Robinson Dr W Sanderson |
DELIVERED ON: | 21 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where pharmacist dispensed anabolic steroids in quantities and frequency that exceeded normal dispensing practices – where pharmacist relatively inexperienced – where a statement of agreed facts and joint proposal on sanction are submitted – whether the pharmacist engaged in unprofessional conduct – whether the proposed sanction is appropriate – whether the review period for a condition on a practitioner’s registration can be specified by reference to the occurrence of a particular event Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102 Health (Drugs and Poisons) Regulation 1996 (Qld), s 197(3), s 197(4) Health Practitioner Regulation National Law Act 2009 (Qld), s 41, s 196(1)(b), s 196(2), s 196(3) Azam v Medical Board of Australia [2013] QCAT 611, applied Pharmacy Board of Australia v Smith [2012] QCAT 186, considered Pharmacy Board of Australia v Donnelly [2011] QCAT 584, considered Pharmacy Board of Australia v Hung [2014] QCAT 148, considered |
REPRESENTATIVES: | |
APPLICANT: | Lander & Rogers for the Pharmacy Board of Australia |
RESPONDENT: | Meridian Lawyers for Hayden Swan |
APPEARANCES: |
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
Background
- [1]The respondent, Mr Hayden Swan, was first registered as a pharmacist with the Pharmacy Board of Australia (Board) on 12 August 2010.
- [2]On 27 March 2015, the Board referred to the Queensland Civil and Administrative Tribunal (tribunal) disciplinary proceedings against Mr Swan pursuant to s 193B of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law). The referral was made on the basis that, pursuant to s 193(2)(b) of the National Law, the Health Ombudsman requested the Board to continue to deal with the matter under the National Law.
- [3]The referral alleges Mr Swan has behaved in a way that constitutes professional misconduct. Mr Swan has admitted he has engaged in unprofessional conduct. In recognition of that admission, the Board no longer seeks a finding of professional misconduct.
- [4]Except in one minor respect, the parties have reached an agreed position on sanction and costs. The material before the tribunal is the referral, the response, the agreed bundle of documents and the statement of agreed facts. In addition, the Board relies on the affidavit of Pamela Mathers, the expert called by the Board.
Conduct
- [5]The grounds set out in the referral relate to Mr Swan’s dispensing of testosterone, a restricted drug falling within Schedule 4 to the Poisons Standard,[1] to customer BL on 31 May 2012.
- [6]Between 16 November 2011 and 31 May 2012, Mr Swan was employed as a pharmacist at The Chemist Warehouse, Garbutt (CWH Garbutt) and The Chemist Warehouse, Townsville (CWH Townsville). During that period, Mr Swan dispensed injectable forms of testosterone to customer BL as follows:
- On 16 November 2011, Primoteston x 12 at CWH Townsville;
- On 3 February 2012, Sustanon 250 x 12 at CWH Garbutt;
- On 13 February 2012, Sustanon 250 x 12 at CWH Townsville; and
- On 29 March 2012, Sustanon 250 x 12 at CWH Garbutt.[2]
- [7]At the time of each dispensing, Mr Swan had access to the dispensing history of customer BL for the pharmacy in which he was working. As at the date of Mr Swan’s offending conduct, the dispensing history for CWH Garbutt showed that customer BL was dispensed testosterone by other pharmacists working at the CWH Garbutt as follows:
- On 30 December 2011, 200 Proviron tablets;
- On 20 January 2012, Primoteston x 12; and
- On 29 May 2012, Sustanon 250.
- [8]On 31 May 2012 at CWH Garbutt, Mr Swan dispensed Sustanon 250 x 9 to customer BL on multiple repeat prescriptions. Contrary to the National Health (Pharmaceutical Benefits) Regulations 1960 (Qld), the prescriptions had not been marked “Regulation 24” by the prescribing doctor.[3]
- [9]By 31 May 2012, the quantity of testosterone-based medications dispensed to customer BL exceeded the usual dosage detailed in the MIMS Product Information for Sustanon and Primoteston.[4] Prior to dispensing the Sustanon to customer BL on that occasion, Mr Swan did not:
- Speak to the prescribing medical practitioner to obtain approval to dispense a further nine ampoules of Sustanon to customer BL;[5]
- Verify whether it was reasonably necessary to dispense a further nine ampoules of Sustanon to customer BL;[6]
- Sufficiently assess BL’s therapeutic need;[7] or
- Consider the quantity of testosterone previously dispensed to patient BL and recorded in the CWH Garbutt’s dispensing data.[8]
- [10]Rather, Mr Swan admits that when he dispensed the Sustanon 250 to customer BL on that date, he relied solely on the information which customer BL provided him.[9]
Professional obligations
- [11]Pursuant to s 41 of the National Law, a code or guideline approved by a National Board is admissible in proceedings against a registered practitioner as evidence of what constitutes appropriate professional conduct or practice for the health profession.
- [12]At the relevant time, Mr Swan was required to practice as a pharmacist in accordance with:
- The Health (Drugs and Poisons) Regulation 1996 (Qld) (Regulation);
- The Pharmaceutical Society of Australia’s Code of Ethics (Code);[10]
- The Pharmaceutical Society of Australia’s Professional Practice Standards, version 4 (Standards);[11] and
- The Board’s Guidelines for dispensing of medicines and on practice-specific issues (Guidelines).
- [13]An expert report was obtained from pharmacist Pamela Mathers for the purposes of these proceedings. In her report dated 5 May 2015, Ms Mathers referred to Mr Swan’s obligations under the Code, Standards and Guidelines. She considered that Mr Swan’s conduct in dispensing the Sustanon to customer BL was contrary to the Code, Standards and Guidelines, and fell below the standards of good pharmaceutical practice.
- [14]In her report, Ms Mathers said that the CWH Garbutt dispensing history indicated that customer BL had been supplied with a total of 48 vials of testosterone injections within an 18 week period. Ms Mathers said that figure represents approximately 2.6 times the amount of testosterone required for treatment as prescribed, and 8 times the amount required according to the manufacturer’s recommended dosage. She considered the quantity of anabolic steroids supplied to customer BL to be “unusual and high”, and “excessive to his therapeutic needs”. She said:
Where prescriptions are presented with unusual and/or high doses of drugs and in particular, if the drug is known to be subject to abuse, a pharmacist has a responsibility to ensure the appropriateness of the prescription to ensure the welfare of the patient and to maintain the quality use of medicines. This responsibility is outlined in the [Code, Standards and Guidelines].
… Where high or unusual doses are prescribed the usual practice is for the pharmacist to ring the prescriber to discuss the prescription in order to obtain the necessary information to independently assess the appropriateness of the prescription.[12]
- [15]Overall, Ms Mathers considered:
It is my opinion that Mr Swan did not consider BL’s medication history adequately or seek further information of the patient’s condition and treatment from the prescriber, as he ought to have done, in order to properly inform his decision to dispense the prescription. He seems to have accepted things at face value because if he had checked the medication history appropriately he would have realised that BL was obtaining quantities in excess of his therapeutic needs which may have prompted another course of action by him. … It is my opinion that Mr Swan’s dispensing of anabolic steroids to BL failed to meet the standards and requirements of [the] Code, [Standards] and the [Guidelines].[13]
- [16]Ms Mathers also referred to Mr Swan’s obligations under the Regulation. By virtue of s 171 of the Regulation, pharmacists are endorsed to deal with restricted drugs falling within Schedule 4 to the Poisons Standard. When dispensing restricted drugs such as testosterone, pharmacists are required to comply with the obligations set out in s 197 of the Regulation. Relevantly, s 197(3) provides that where a pharmacist is asked to dispense a restricted drug more frequently or in a greater quantity or volume than appears to be reasonably necessary, the obligations set out in s 197(4) apply. Section 197(4) obliges a pharmacist to provide written notice to the Chief Executive of the Queensland Department of Health about:
- The circumstances in which the dispenser has been asked to dispense the restricted drug;
- The quantity or volume of the restricted drug dispensed; and
- When it has been dispensed for the person.
- [17]Ms Mathers considered that given the quantity and frequency of supply of anabolic steroids to customer BL, Mr Swan was obliged to make a report under s 197(4) of the Regulation.
- [18]Mr Swan admits that his conduct on 31 May 2012 in dispensing the testosterone to customer BL was contrary to the terms of his statutory endorsement as a pharmacist and a breach of s 197(4) of the Regulation. He further admits that by his conduct, he has breached the Code, Standards and Guidelines.[14] Mr Swan accepts his conduct amounts to unprofessional conduct, but not professional misconduct.
- [19]Given the admissions made by Mr Swan, the Board did not seek a finding of professional misconduct. For the reasons which will be discussed below, the approach taken by the Board in the circumstances was entirely appropriate.
- [20]The tribunal accepts that Mr Swan’s conduct in dispensing testosterone to customer BL on 31 May 2012 was in breach of his professional obligations under the Code, Standards, Guidelines and Regulation. The tribunal finds that Mr Swan has engaged in unprofessional conduct as that term is defined in s 5 of the National Law.
Sanction
- [21]Having determined that the conduct amounts to unprofessional conduct, in accordance with s 196(2) of the National Law, the tribunal must now decide the appropriate sanction to be imposed.
- [22]There are a number of factors identified in the parties’ submissions which are relevant to the tribunal’s determination of sanction. Although serious, Mr Swan’s conduct relates to one incident in the course of his career as a pharmacist, as opposed to a sustained period of inappropriate dispensing. He has not previously come to the attention of the Board, and has demonstrated insight by making appropriate admissions and fully co-operating throughout these proceedings. It is also of relevance that at the time of the offending conduct he was a relatively junior and inexperienced practitioner.
- [23]As previously mentioned, the parties have jointly proposed a sanction. The parties seek orders including:
- A finding of unprofessional conduct;
- A reprimand;
- The imposition of conditions requiring completion of an education course regarding professional ethics and dispensing; and
- An order that Mr Swan pay the Board’s costs.
- [24]The parties referred the tribunal to a number of comparable decisions for the purposes of assessing sanction.[15] The decisions of Pharmacy Board of Australia v Smith,[16] Pharmacy Board of Australia v Donnelly[17] and Pharmacy Board of Australia v Hung[18] are of particular assistance; though the conduct in each of those cases was worse than the conduct here.
- [25]In Smith and Donnelly, experienced pharmacists dispensed significant quantities of anabolic steroids to single customers over a period of eight months. The tribunal made orders including a suspended suspension of six months, completion of an education course on ethical decision-making and a mentoring program. In Hung, a pharmacist facilitated sales of significant quantities of pseudoephedrine over a six month period. The pharmacist was reprimanded, and conditions requiring mentoring and completion of education on ethical practice were imposed.
- [26]By reference to those authorities, the sanction proposed is within the appropriate range. The tribunal is satisfied the orders sought are adequate to ensure the protection of the public and the maintenance of professional standards. In those circumstances, there is no reason for the tribunal to depart from the proposed agreed sanction.[19]
- [27]Pursuant to s 196(2)(a) of the National Law, Mr Swan will be reprimanded. In all the circumstances, it would seem appropriate to the tribunal for such record to remain on the register for a period of no longer than six months, though ultimately that is a matter for the Board.[20]
- [28]Pursuant to s 196(2)(b)(i) of the National Law, conditions in the form of the schedule to these reasons will be imposed upon the registration of the practitioner, requiring completion of further education in professional ethics and dispensing.
- [29]Pursuant to s 196(3) of the National Law, the tribunal is required, if conditions are being imposed upon a practitioner’s registration, to nominate a review period for the conditions. The Board submits a review period of six months is appropriate. It is submitted on behalf of Mr Swan that the conditions should be reviewed upon his completion of the further education.
- [30]Whether or not a review period can be set by reference to the occurrence of a particular event was considered by the tribunal in Azam v Medical Board of Australia.[21] In that case, the question arose whether the Medical Board, in imposing conditions upon the applicant’s registration by way of immediate action, had adequately specified the review period for those conditions. Deputy President Judge Horneman-Wren SC said:
[I]t is clear the Board was of the view that there was a relevant review period because the Board in its notice of conditions stated that it proposed to review the conditions on the receipt of the completed investigation report. … Dr Azam also considers that a review period was imposed by the Board in making its decision to take immediate action by its statement that it proposed to review the conditions when the investigation report was received.
… In my view, both the Board and Dr Azam are incorrect in considering that the conditions were subject to a review period because of that statement in the Board’s notice of conditions. In my view, a review period referred to in s 125(2)(a) is a review period which the National Law requires the Board, a panel, or the Tribunal to impose if conditions are imposed under s 83(2), s 178(3), s 191(4) or s 196(3). Here, no such review period has been set.
Furthermore, the statement by the Board that it “proposes” to review the conditions upon a certain event occurring, namely the receipt of the investigation report, does not set or impose a review period. It is indefinite in both the requirement to review and in the length of the period. … In my view, the chaperone conditions were never the subject of a review period for the purposes of s 125(2)(a).[22]
- [31]This tribunal is of the view that the approach taken by the former Deputy President Judge Horneman-Wren SC in Azam is the correct one. The occurrence of an indefinite event cannot set or impose a review period as required by s 178(3) of the National Law.
- [32]Each of the various professional boards established under the National Law are responsible for overseeing the management of health practitioners registered in each health profession, including monitoring conditions, undertakings and suspensions imposed on the registration of the practitioners.[23] An interpretation which allowed for the happening of an event as determinative of a review period would be both administratively difficult and unduly cumbersome. A definite review period for the conditions is required, and the tribunal accepts a period of six months is appropriate.
- [33]Finally, the tribunal will also make an order that Subdivision 2, Division 11, Part 7 of the National Law applies to the conditions. This order recognises that s 125(2)(b), s 126(3)(b) and s 127(3)(b) of the National Law require an adjudication body[24] to decide, when imposing a condition, that that Subdivision applies to the condition or conditions so that the conditions may be changed or removed by the Board pursuant to s 125, s 126 or s 127 of the National Law.
Costs
- [34]The parties have agreed that Mr Swan should pay the Board’s costs of and incidental to the proceeds in an amount to be agreed or, failing agreement, to be assessed and fixed.
- [35]Such an order was regularly made under s 195 of the National Law, which conferred a broad jurisdiction on the Tribunal to “make any order about costs it considers appropriate for the proceedings”. However, following the removal of s 195 by the Health Ombudsman Act 2013 (Qld),[25] the issue of costs falls to be determined under the provisions of the QCAT Act.
- [36]The relevant provisions of the QCAT Act provide that each party to a proceeding must bear its own costs unless otherwise provided in the QCAT Act or by an enabling Act,[26] or unless the interests of justice require it.[27] The matters to which the tribunal may have regard in deciding whether to award costs are set out in s 102(3) of the QCAT Act. Those matters include “anything else the tribunal considers relevant.”
- [37]In this case, the parties have consented to the making of an order awarding costs. In those circumstances, it seems appropriate that the cost of the proceedings be borne by the erring practitioner.
- [38]The appropriate order is that Mr Swan should pay the Board’s costs to be agreed, or failing agreement, to be assessed.
Orders
- [39]Accordingly, the Tribunal orders that:
- Pursuant to s 196(1)(b)(ii) of the National Law, the tribunal finds that Mr Swan has behaved in a way that constitutes unprofessional conduct;
- Pursuant to s 196(2)(a) of the National Law, Mr Swan is reprimanded;
- Pursuant to s 196(2)(b)(i) of the National Law and in accordance with the attached schedule of conditions, the tribunal imposes a condition on Mr Swan’s registration requiring completion of a course of education regarding professional ethics and dispensing;
- Pursuant to s 196(3) of the National Law, the review period for the condition is six months from the date of this order;
- Subdivision 2, Division 11, Part 7 of the National Law applies to the condition; and
- Mr Swan is to pay the Board’s costs to be agreed, or failing agreement, to be assessed.
SCHEDULE OF CONDITIONS
On 21 December 2016, the Queensland Civil and Administrative Tribunal imposed the following conditions on the registration of Mr Hayden Swan (Practitioner) under s 196(2)(b) of the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law):
- The Practitioner is to undertake and successfully complete a program of education, approved by the Pharmacy Board of Australia (Board) in relation to ethics and dispensing.
- Within 28 days of the imposition of these conditions, the Practitioner must nominate to the Board for approval, in writing, an education course, assessment or program (the education) addressing the topics required. The Practitioner must ensure he provides his nomination, as a minimum:
- (a)if a course of education is chosen, a copy of the curriculum;
- (b)if the education is to be a tailored program conducted by an individual, the Practitioner must provide a detailed plan of the training program and a copy of the curriculum vitae of the individual to provide the training.
- (a)
- The Practitioner must complete the education within six months of the notice of the Board’s approval of the education.
- Within 28 days of the completion of the education, the Practitioner is to provide to the Board:
- (a)evidence of successful completion of the education; and
- (b)confirmation that the Practitioner has not included this education or the preparation of the reflective practice report to satisfy the Practitioner’s continuing professional development requirements.
- (a)
- The requirements of the conditions are in addition to the Practitioner’s continuing professional development requirements as a pharmacist. The Practitioner must not use the education undertaken in compliance with these conditions to satisfy the Practitioner’s continuing professional development requirements.
- All costs and expenses in relation to the terms set out in these conditions are to be at the Practitioner’s expense.
- The Practitioner must provide to the Board any documentary evidence required by these conditions within the timeframes specified.
- Failure to comply with these conditions may be a ground for health, conduct or performance action against the Practitioner.
Footnotes
[1]Standard for the Uniform Scheduling of Medicines and Poisons.
[2]Statement of agreed facts, [31].
[3]Statement of agreed facts, [35].
[4]Ibid, [36].
[5]Ibid, [37].
[6]Ibid, [38].
[7]Ibid, [39].
[8]Ibid, [40].
[9]Ibid, [41].
[10]In the statement of agreed facts and the Board’s submissions, the parties have identified the Pharmaceutical Society of Australia’s Code of Professional Conduct as the relevant code. However, by reference to the bundle of agreed documents and the affidavit of Pamela Mathers, this appears to be in error. The relevant professional code is the Pharmaceutical Society of Australia’s Code of Ethics.
[11]In the statement of agreed facts, the parties have identified version 3 of the Standards as the relevant reprint. However, by reference to the bundle of agreed documents and the affidavit of Pamela Mathers, this appears to be in error. The relevant reprint of the Standards is version 4.
[12]Affidavit of Pamela Anderson, 11.
[13]Ibid, 12 and 15.
[14]Statement of agreed facts, [43].
[15]Pharmacy Board of Australia v Smith [2012] QCAT 186; Pharmacy Board of Australia v Donnelly [2011] QCAT 584; Pharmacy Board of Australia v Brenton [2011] QCAT 302; Pharmacy Board of Australia v Ciriello [2014] QCAT 459; Pharmacy Board of Australia v Hung [2014] QCAT 148; Pharmacy Board of Australia v Kinsey 2012] QCAT 359.
[16][2012] QCAT 186.
[17][2011] QCAT 584.
[18][2014] QCAT 148.
[19]Pharmacy Board of Australia v Jattan [2015] QCAT 294; Medical Board of Australia v Martin [2013] QCAT 376.
[20]National Law, s 226.
[21][2013] QCAT 611.
[22]Azam v Medical Board of Australia [2013] QCAT 611, [21]-24], [27].
[23]National Law, s 35(1)(j).
[24]Section 5 of the National Law defines “adjudication body” to include the tribunal.
[25]Health Ombudsman Act 2013 (Qld), subparagraph 50 of s 326.
[26]QCAT Act, s 100.
[27]Ibid, s 102(1).