The Practitioner v Pharmacy Board of Australia
[2017] QCAT 131
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- Unreported Judgment
- The Practitioner v Pharmacy Board of Australia[2017] QCAT 131
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The Practitioner v Pharmacy Board of Australia[2017] QCAT 131
The Practitioner v Pharmacy Board of Australia[2017] QCAT 131
CITATION: | The Practitioner v Pharmacy Board of Australia [2017] QCAT 131 |
PARTIES: | The Practitioner (Applicant) v Pharmacy Board of Australia (Respondent) |
APPLICATION NUMBER: | OCR016-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 8 May 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Judge Suzanne Sheridan, Deputy President |
DELIVERED ON: | 11 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – LICENSES AND REGISTRATION – OTHER MATTERS – where the Pharmacy Board of Australia imposed conditions on the registration of the registrant – where the registrant seeks review of the conditions imposed – where the registrant seeks a stay of the certain conditions imposed – whether the stay should be granted Health Practitioner Regulation National Law (Queensland), s 178, s 179 Queensland Civil and Administrative Act 2009 (Qld), s 22(3), s 22(4) Erathnage v Medical Board of Australia [2016] QCAT 418, followed Jaravaza v Medical Board of Australia [2013] QCAT 44, cited Moore v Medical Board of Australia [2016] QCAT 186, distinguished YXN v Medical Board of Australia [2014] QCAT 706, followed Sharma v Medical Board of Australia [2014] QCAT 305, considered |
REPRESENTATIVES: |
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APPLICANT: | D M Favell, instructed by Watt & Severin Solicitors |
RESPONDENT: | A D Scott, instructed by Moray & Agnew Lawyers |
REASONS FOR DECISION
- [1]On 8 May 2017, the Tribunal ordered that the application by the Practitioner seeking a stay of certain conditions imposed by the Pharmacy Board of Australia (Board) would not be granted. The following are the Tribunal’s reasons for refusing the application.
Background
- [2]By its decision taken on 2 December 2016 and confirmed on 16 December 2016, the Board decided to take immediate action against the Practitioner under s 156 of the Health Practitioner Regulation National Law (Queensland) (National Law).
- [3]In a letter to the Practitioner dated 16 December 2016, it was said the Board (or the Committee acting on behalf of the Board) reasonably believed:
- the Practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health and safety; and
- the Practitioner has or may have an impairment and is required to undergo an independent health assessment.
- [4]The Board’s immediate action decision was to impose various conditions on the registration of the Practitioner, including conditions that restricted the Practitioner from undertaking clinical pharmaceutical duties.
- [5]Given the Practitioner’s absence overseas at the time of the decision, it was agreed that the time limit for compliance with the conditions imposed was extended until 23 January 2017.
- [6]On 12 January 2017, the Practitioner was notified that the Practitioner would undergo the independent health assessment with Dr Steinberg, consultant psychiatrist, on 22 February 2017. The letter also advised the Practitioner of the requirement that the Practitioner undergo screening for substance use, namely urine drug screening, hair drug screening and blood testing.
- [7]On 13 January 2017, the Practitioner filed an application in the Queensland Civil and Administrative Tribunal (Tribunal) seeking a review of the Board’s immediate action decision. In the Practitioner’s affidavit filed in support of the review application, the Practitioner accepted the Practitioner suffers from Alcohol Use Disorder but said that treatment had been sought. The Practitioner acknowledged the conditions required the Practitioner refrain from the consumption of alcohol and stated that no alcohol had been consumed since commencing treatment in August 2016. The Practitioner admitted to being an inpatient at a rehabilitation clinic and attached the Medical Discharge Sheet from that clinic. As an action on discharge, the clinic had referred the Practitioner to a psychiatrist for treatment. The discharge notes refer to concerns as to cognitive impairment.
- [8]A report from the treating psychiatrist, Dr Kann, dated 8 November 2016 is attached to the Practitioner’s affidavit. Dr Kann’s report refers to cognitive testing having been performed on 19 October 2016 and says that testing did not suggest cognitive impairment. The report refers to there having been an escalation of alcohol ingestion but states the Practitioner is ‘committed to alcohol abstinence in the short to medium term’.
- [9]In a subsequent affidavit filed in support of the review proceedings, the solicitor for the Practitioner attached a report prepared by a clinical neuropsychologist, Dr Bailey. Dr Bailey’s report was prepared following consultations with the Practitioner on 24 and 31 January 2017. The report referred to the Practitioner drinking approximately 5 glasses of white wine per week. Dr Bailey’s report concluded there was no evidence of cognitive impairment but commented, in referring to the Practitioner’s medical condition of Multiple Sclerosis, the Practitioner’s cognitive profile may not remain stable should the disease progress.
- [10]On 22 February 2017, the Practitioner attended for the independent health assessment with Dr Steinberg but declined to undergo any screening tests for alcohol or substance use.
- [11]The Board received a detailed report from Dr Steinberg dated 22 February 2017. Relevantly, that report identified the Practitioner as suffering from Alcohol Use Disorder which, it was said, is likely to detrimentally affect the capacity of the Practitioner to practice as a pharmacist. The report stated that, in Dr Steinberg’s opinion, there was a risk of neurocognitive impairment due to alcohol-related brain damage or multiple sclerosis related-brain damage.
- [12]Dr Steinberg’s report concluded that the Practitioner should not work as a clinical pharmacist dispensing medications until the Practitioner remained abstinent from alcohol for a 12 month period. The report identified the treatment the Practitioner should receive and the initial testing which should be performed.
- [13]Dr Steinberg’s report was considered by the Board and on 21 April 2017, which decision was confirmed on 26 April 2017, the Board decided to remove the immediate action conditions and impose conditions on the registration of the Practitioner pursuant to ss 178 and 179 of the National Law.
- [14]In summary, the conditions imposed:
- limit the Practitioner’s ability to practice such that the Practitioner is confined to performing managerial and administrative duties in the pharmaceutical practice owned by the Practitioner;
- require the Practitioner to undergo blood testing and treatment from a general practitioner, consultant psychiatrist and neurologist; and
- provide for the monitoring of compliance with the substantive conditions.
- [15]The conditions limiting the Practitioner’s ability to practice were similar to the immediate action conditions. The conditions requiring the Practitioner to undergo testing and attend for treatment had not been part of the immediate action conditions and the monitoring conditions were more extensive.
- [16]Given that the immediate action decision had been replaced by the decision taken on 26 April 2017, the parties have appropriately agreed that the review proceedings filed on 13 January 2017 can be amended to seek a review of the latter decision, without the need for the filing of a further application.
- [17]On 3 May 2017, the Practitioner filed an application seeking a stay of certain conditions imposed by the decision taken on 26 April 2017. The conditions sought to be stayed were:
- The conditions requiring the Practitioner to undergo blood testing and to attend for treatment upon a general practitioner, consultant psychiatrist and neurologist (conditions 7 to 10);
- The conditions restricting the taking of other than prescribed substances (condition 11); and
- The conditions requiring any registered pharmacists working with the Practitioner to have sighted the conditions and the senior person’s contact details to be provided to the Australian Health Practitioner’s Regulation Agency (AHPRA) (conditions 14 and 15a) (the Disputed Conditions).
- [18]The conditions restricting the Practitioner from undertaking clinical pharmaceutical duties were not sought to be stayed.
- [19]The application for a stay was mentioned before Justice Thomas, President of the Tribunal on Wednesday 3 May 2017 and at that time orders were made:
- for the filing and exchange of written submissions;
- staying the imposition of condition 7 requiring the Practitioner to undergo a blood test until further order of the Tribunal; and
- setting the stay application down for hearing on Monday 8 May 2017.
- [20]The need for the staying of the imposition of condition 7 arose because that condition required the Practitioner to undergo blood testing within seven days of the imposition of the conditions. As the conditions were imposed by the decision notified on 26 April 2017, the first blood test was required to be undertaken by either Wednesday 3 May, or Thursday 4 May 2017, depending on whether the public holiday was included in the calculation of the seven day time period. Despite request from the Practitioner, the Board had refused to grant any extension for the compliance with condition 7.
Consideration
- [21]In considering an application for a stay, relevantly, s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that:
- (3)The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.
- (4)The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following—
- (a)the interests of any person whose interests may be affected by the making of the order or the order not being made;
- (b)any submission made to the tribunal by the decision-maker for the reviewable decision;
- (c)the public interest.
- [22]The stay is sought in the context of the Practitioner challenging the entirety of the conditions imposed by the Board. The grant of a stay of any of the Disputed Conditions is opposed by the Board.
- [23]In determining a stay application, the approach to be taken by the Tribunal is to focus on the requirements of s 22(4) of the QCAT Act. Section 22(4) makes it clear that the Tribunal may only grant a stay under s 22(3) if it considers the order is desirable having regard to the three matters referred to in s 22(4). As stated in Erathnage v Medical Board of Australia,[1] the words of the subsection give to the Tribunal a broad discretion, taking into account those matters identified. Any application for a stay should address those matters.
- [24]The primary argument for the Practitioner is that the conditions sought to be stayed serve no proper purpose. It was said that the starting point is to look at the conditions on their face and ask, “Do they protect the health and safety of the public?” It was said, on behalf of the Practitioner, the Disputed Conditions do not do that. The Disputed Conditions, it was said, have no public interest benefit.
- [25]In the Practitioner’s written submissions, it was said that the purpose of the conditions was to allow the Board to use the material obtained from that testing and treatment as evidence to build a case against the Practitioner. It was further said that if the Practitioner was successful in the review proceedings, the Practitioner would have been put to effort, inconvenience and cost for which the Practitioner could not be compensated.
- [26]These matters might be said to raise the issues required to be considered by s 22(4)(a).
- [27]Counsel for the Practitioner argued that to the extent that a stay might postpone the commencement of the 12 month period of abstinence, the only person who would suffer any detriment in that scenario is the Practitioner. In oral submissions, counsel said, “It would only mean that [it] would take an extra one or two months to get back to work and that is the risk [the Practitioner] is willing to take.” It was argued that there was no harm in staying the start date, given that the Practitioner was prohibited from acting in a clinical capacity as a pharmacist.
- [28]Those arguments ignore the fact that under the conditions the Practitioner is allowed to perform managerial and administrative duties at the pharmacy and the present evidence from the independent health assessment suggesting that the Practitioner has an impairment.
- [29]The imposition of the conditions is not, in my view at this stage of proceedings, so clearly for an improper purpose as would justify the granting of a stay.
- [30]It may be that there is some effort, inconvenience and cost incurred by the Practitioner in complying with the conditions. However, as Deputy President Judge Horneman–Wren SC commented in YXN v Medical Board of Australia,[2] the personal circumstances of or personal impacts upon a registrant by the imposition of conditions and impacts which those matters may have on his or her family, although relevant, are not of themselves usually sufficient to warrant the grant of a stay.
- [31]It was further submitted on behalf of the Practitioner that any success in the subsequent review proceedings would be rendered nugatory by the fact that the Practitioner will have carried out the requirements of the conditions. In making that submission, reference was made to an earlier Tribunal decision in Moore v Medical Board of Australia.[3] The facts in Moore, and in cases like Moore,[4] are quite different to the facts in this case. In Moore and Sharma, the practitioner would have undertaken the educational courses, the subject of the review proceedings, prior to the matter being finally determined by the Tribunal. Here, condition 7 is to be reviewed in six months and the remaining conditions reviewed in 12 months. The Tribunal has indicated that, given this matter is akin to an immediate action matter, the review proceedings will be given priority and can be heard and determined as quickly as the Practitioner can be ready for a hearing. In those circumstances, it can be expected that the review application can be heard and determined before the expiry of the time period for undertaking the testing and treatment pursuant to Condition 7. Further, unlike in Moore and Sharma, there is evidence here that the Practitioner has health issues and an impairment.
- [32]On behalf of the Practitioner, it was further argued that s 178(2) of the National Law did not give the Board power to impose the Disputed Conditions.
- [33]Section 178(2) of the National Law applies in circumstances where the Board reasonably believes a registered health practitioner has or may have an impairment. It allows the Board to impose conditions on a practitioner’s registration. The section then provides an array of examples of conditions which may be imposed. The examples include conditions requiring a practitioner to complete specified further education, to undertake a specified period of supervised practice, to do or refrain from doing something in connection with the practitioner’s practice, to manage the practitioner’s practice in a specified way, to report to a specified person at specified times about the practitioner’s practice or to not employ a specified person or class of persons. The list is said to be by way of example and not said to be exclusive.
- [34]For the purposes of considering the stay application, it is unnecessary to reach any final decision on the question raised. The submission on behalf of the Practitioner is, however, not so compelling as to warrant a decision being made in this application that the conditions were unlawful. In any event, such a decision is neither possible nor sought by the Practitioner.
- [35]Finally, in the written submissions it was said on behalf of the Practitioner that the Practitioner should not be required to disclose these conditions to the registered pharmacist employed by the Practitioner nor the senior person nominated by the Practitioner. It was said that the conditions were unreasonable and served no proper purpose.
- [36]One of the Disputed Conditions required the Practitioner not to consume substances unless prescribed by one of the treating practitioners. One would have thought it was highly pertinent that the persons who worked at the pharmacy attended by the Practitioner knew of these conditions.
- [37]As regards these other conditions, it is difficult to see why the employed pharmacists and senior person should not be made aware of the whole regime relating to the Practitioner given their role at the pharmacy. The most that could be said about these conditions is that the notification to the employed pharmacists could give rise to some embarrassment. That is hardly sufficient to justify the granting of a stay.[5]
- [38]For these reasons, I am not satisfied that it is desirable that a stay of any conditions be granted until the hearing and determination of the substantive review application. I refuse the stay of the imposition of the conditions.
- [39]A question was raised on behalf of the Practitioner in terms of the costs of the stay application. As stated at the hearing of the application, it is more appropriate that question of costs be dealt with at the conclusion of the substantive review. The appropriate order is that the costs of the stay application be reserved.