Health Ombudsman v Dalziel[2017] QCAT 442

REASONS FOR DECISION

Background

1. [1]
   On 20 February 2017, the Health Ombudsman referred to the Tribunal a health service complaint against Mr Dalziel, pursuant to ss 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act).
2. [2]
   There are three separate allegations set out in the referral.  In summary, it is alleged that:

   1. Between 2 February 2010 and 23 August 2011, Mr Dalziel unlawfully supplied Schedule 4 restricted drugs to Customer A (Charge 1);
   2. Between 3 January 2010 and 11 January 2012, Mr Dalziel unlawfully supplied Schedule 4 restricted drugs to Customer B (Charge 2); and
   3. Between 3 January 2010 and 11 January 2012, Mr Dalziel generated false records in the computerised dispensing database of Priceline Pharmacy Moranbah for Customer A and Customer B (Charge 3).
3. [3]
   There are no factual issues in dispute between the parties, the parties having filed a statement of agreed facts on 12 June 2017.  The parties filed joint submissions on 15 August 2017.
4. [4]
   In those joint submissions, the parties submitted the appropriate orders to be made by the Tribunal were:

   1. The respondent’s registration be suspended for a period of three months;
   2. The respondent pay a fine to the Health Ombudsman in the sum of $20,000; and
   3. Conditions be imposed on the respondent’s registration following the period of suspension.
5. [5]
   It was further agreed that Mr Dalziel should pay to the Health Ombudsman costs in the amount of $15,000.
6. [6]
   The Tribunal is under an obligation to deal with  matters in a way that is fair, just, economical and quick.^[1]  To that end, the Tribunal encourages parties through various means, such as compulsory conferences, to attempt to reach an agreed position, if possible.  This means, as observed by Deputy President Horneman-Wren SC DCJ in Medical Board of Australia v Martin, that:

[t]he Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of the permissible range of sanction for the conduct, bearing in mind that the purpose of disciplinary proceedings is protective rather than punitive.^[2] 

7. [7]
   However, when exercising its jurisdiction in disciplinary proceedings, the Tribunal is fulfilling a public interest function and is not bound by the parties’ agreement on sanction.^[3]
8. [8]
   The Tribunal initially convened an on the papers hearing and considered the evidence and the joint submission of the parties on both the categorisation of conduct and sanction.  The Tribunal subsequently convened an oral hearing to consider whether or not the sanction proposed in the joint submissions was excessive and whether the costs order was appropriate.

Misconduct of Mr Dalziel

9. [9]
   Between 23 March 2009 and 2 December 2013, Mr Dalziel was the director of Nuchem Pharmacies No. 5 Pty Ltd, trading as Priceline Pharmacy Moranbah Fair.  Mr Dalziel was the proprietor of the pharmacy and responsible for its operation.  Between April 2009 and January 2012, he worked in the Pharmacy as the ‘Pharmacist in Charge’.^[4] 
10. [10]
    The Pharmacy was a rural pharmacy which operated ten hours per day in a mining town, with little or no access to a locum pharmacist.  Mr Dalziel worked very long hours and often worked as the only pharmacist at the Pharmacy.  He and his family were isolated from their friends and family on the Gold Coast during this period.
11. [11]
    Over a period of two years between 4 January 2010 and 10 January 2012, Mr Dalziel supplied various Schedule 4 restricted drugs to Customer A and Customer B without prescriptions and otherwise without approval or lawful authority. 
12. [12]
    Customer A and Customer B were said to be acquaintances of Mr Dalziel.  Customer A was a regular customer of the Pharmacy and owned a retail shop in the same complex as the Pharmacy.  Customer B was a regular customer of the Pharmacy and Mr Dalziel thought that Customer B was a friend of Customer A. 
13. [13]
    Customer A initially presented at the pharmacy with an expired script.  While Mr Dalziel held doubts about Customer A’s genuine need for medication, Customer A “pestered” him, claiming he was being treated for ongoing hormone deficiencies.  Mr Dalziel states in his affidavit that he “felt a bit intimidated by Customer A.  He was a tall and muscular man.”  Mr Dalziel admits he took the path of least resistance and supplied the medication requested.
14. [14]
    Customer B initially attended the pharmacy with Customer A and sought Mr Dalziel supply him with restricted medication without a script.  Mr Dalziel supplied the medication requested.  Mr Dalziel also found Customer B to be physically intimidating.
15. [15]
    Once Mr Dalziel dispensed the medication to the customers for the first time, he found it increasingly difficult to say no.  He found it difficult to be assertive with the two customers. 
16. [16]
    At the time of this conduct, Mr Dalziel was suffering from anxiety, depression and undiagnosed hypogonadism and it is accepted that these conditions would have had some impact on his assertiveness and decision making capacities. 
17. [17]
    Over the relevant period, Mr Dalziel supplied to Customers A and B Schedule 4 restricted drugs (predominately steroids and associated drugs),^[5] without a prescription, 94 times over 66 supply episodes with an approximate retail value of $8,442.72.^[6]
18. [18]
    Mr Dalziel also generated false electronic dispensing records for Customer A and Customer B in the dispensing database for the pharmacy, recording that the restricted drugs were dispensed in accordance with a valid prescription.
19. [19]
    At the time of ceasing work at the Pharmacy in January 2012, Mr Dalziel told both customers A and B that the new operator of the Pharmacy would not supply prescription drugs without a script.

Categorisation of Conduct

20. [20]
    Mr Dalziel’s conduct in respect of all charges was said to amount to professional misconduct as defined under s 5 of the National Law, which provides:

professional misconduct, of a registered health practitioner, includes—

1. (a)
   unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

2. (b)
   more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

3. (c)
   conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

21. [21]
    In the referral it was said that the conduct fell within sub-paragraph (a) and/or sub-paragraph (c) of the definition.  In the response filed on behalf of Mr Dalziel, it was said the conduct amounted to unprofessional conduct and not professional misconduct.
22. [22]
    In the joint submissions, it was accepted the conduct in respect of each of the charges amounted to professional misconduct as defined in sub‑paragraph (a) of the definition.
23. [23]
    The Tribunal accepts that the conduct amounts to professional misconduct.

Mr Dalziel’s Circumstances

24. [24]
    Mr Dalziel’s misconduct ceased when he stopped working at the Pharmacy at Moranbah.  Whilst at Moranbah, not only was he working long hours but he was working in a remote, isolated community without professional support.  He was relatively young and his wife was experiencing a difficult first pregnancy.  He and his wife were absent from close family and a social support network.  These facts, together with the fact that he was suffering from depression, anxiety and undiagnosed hypogonadism, meant that he found his work and home life very stressful. 
25. [25]
    Upon Mr Dalziel ceasing at the Pharmacy, the family moved back to the Gold Coast and Mr Dalziel commenced studying medicine at Griffith University. 
26. [26]
    Upon returning to the Gold Coast, he immediately sought help for his medical conditions, including undergoing significant treatment with his long‑time family general practitioner, a consultant psychiatrist and a psychologist for a couple of years.
27. [27]
    He was first formally notified by AHPRA in late 2014 and in his initial response to AHPRA, he made full admissions to the alleged conduct.  He admitted his misconduct at the time he was first contacted by AHPRA in late 2014.  By that time, he had taken leave from his medical studies and was working as a clinical pharmacist at a major private hospital in Brisbane.  Upon receiving notification of the investigation, he immediately informed his manager, whom he gave permission to also inform the Director of Pharmacy for the owner of the hospital.  He remained working in the hospital pharmacy.
28. [28]
    During this period, Mr Dalziel completed a Graduate Diploma of Clinical Pharmacy. 
29. [29]
    Mr Dalziel is now working as the manager of the hospital pharmacy at a major private hospital on the Gold Coast, a job he commenced in January 2017.  Mr Dalziel disclosed the existence of these proceedings during the interview process.
30. [30]
    His extensive level of insight, remorse and co-operation through the investigation and these proceedings must be taken into account.  It is relevant that he has been subjected to investigations by both AHPRA and the Health Ombudsman, and now to the proceedings before this Tribunal.
31. [31]
    It is almost six years since he left Moranbah and three years since he was first notified of the investigation.
32. [32]
    In his oral submissions, Mr Dalziel said he had “the sword of Damocles” hanging over him, which has caused him a lot of stress, particularly given his history of depression and anxiety.  In his oral submissions, Mr Dalziel referred to his financial costs, stating that he had spent $30,000 on his legal defence since the matter was referred to QCAT in December 2016.  At the oral hearing, Mr Dalziel was representing himself because of the ongoing costs. 
33. [33]
    Mr Dalziel’s level of insight has enabled him to find his preferred work environment in a hospital setting where there is greater collegiate support, stability and more regular working hours.  He is now acutely aware of the dangers of burnout and stress. 
34. [34]
    Mr Dalziel spoke of feeling ashamed and guilty for his misconduct.  Whilst referring to the lengthy period since the investigation commenced as having caused additional stress, it had also given him time to fully reflect on his misconduct.  He was very aware of the impact of his misconduct on his family and of the need to ensure he has in place strategies to avoid burnout and stress in the future; the things which he feels contributed to his poor decision-making.  He referred to the importance of seeking help earlier. 
35. [35]
    Mr Dalziel referred to having recently commenced a mentoring relationship which he says he has found beneficial to be able to have access to an experienced practitioner available to discuss any challenges and to provide a support system.

Written Submissions on Sanction

36. [36]
    As stated earlier, the parties submitted the appropriate orders to be made by the Tribunal included a three month period of suspension, a $20,000 fine and conditions being placed on Mr Dalziel’s registration following the period of suspension.
37. [37]
    In the joint submissions it was said:

The purpose of disciplinary proceedings includes the need to deter the practitioner and deter others from engaging in similar conduct and uphold public confidence in the standards of the profession.

38. [38]
    It was accepted the Tribunal could take into account the practitioner’s conduct during the proceedings.  Whilst the long delay was acknowledged, it was said “[d]elay has no real weight” other than “the absence of any complaint during the period of the delay” and in that sense delay is to the respondent’s advantage.
39. [39]
    The joint submissions referred to the special position of trust; referring to a pharmacist being “the last line of defence in the system to regulate access to medications”.  A breach of that trust in unlawfully supplying drugs undermines confidence in the profession.  It was submitted that principles of general deterrence will be highly relevant in this case.  It was said:

….disapproval of the respondent’s conduct must be expressed by a suspension as a general deterrence to others and to indicate to the profession and the public that such conduct is a serious departure from the standard expected of pharmacists in the pharmacy profession.

40. [40]
    The various drugs supplied are infamous drugs in sport and body building.  The drugs supplied included a combination of steroids and growth hormones and other drugs to counter the adverse effects of the steroids.  It was submitted, and could not be disputed, that the use of those drugs carries with it many serious health risks.  The unlawful supply of those restricted drugs, as was submitted, had the potential to pose a serious risk to each customer.
41. [41]
    Mr Dalziel’s conduct involved multiple lapses over a two year period.
42. [42]
    It was said that the parties agreed that a practitioner who engages in conduct such as that engaged in by the respondent would ordinarily be at risk of suspension of their registration for a substantial period.  In this case, the parties had agreed to what they described as a “more modest period of suspension, in conjunction with a large fine and conditions” and it was said that “serves the same purpose as a lengthy suspension.”

Approach to Sanction

43. [43]
    It is well accepted that the jurisdiction being exercised by the Tribunal is protective, not punitive.^[7]  The main principle for administering the HO Act is that the health and safety of the public is paramount.^[8]
44. [44]
    The New South Wales Court of Appeal in Health Care Complaints Commission v Do, stated:

The object of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence.  It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession.  That objective is achieved by settling and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct.  Denouncing such misconduct operates as a deterrent to the individual concerned, as well as to the general body of practitioners.  It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.^[9]

Cases referred to in the Joint Submissions

45. [45]
    In their joint submissions, the parties drew to the Tribunal’s attention a number of cases involving pharmacists supplying restricted drugs to customers. 
46. [46]
    In Pharmacy Board of Australia v Brenton,^[10] a pharmacist dispensed restricted drugs, namely steroids, to a customer with a prescription at a frequency and in quantities which indicated they were not used for a therapeutic purpose.  The dispensing occurred over a two and a half year period, with the retail value of the drugs supplied being approximately $30,000.  The tribunal found that the pharmacist had engaged in unsatisfactory professional conduct under s 124 of the Health Practitioners (Professional Standards) Act 2008 (Qld). 
47. [47]
    Whilst the time‑frame over which the pharmacist in Brenton supplied the restricted drugs is comparable, the case is of little assistance.  In Brenton, the pharmacist was an experienced practitioner of 50 years’ standing.  In the present case, Mr Dalziel was much younger and less experienced.  The total retail value of the restricted drugs supplied is also significantly less.  Importantly, the pharmacist in Brenton had retired with no intention of returning to practice and accordingly, by way of sanction, an undertaking was proffered and accepted that the pharmacist would not seek to renew his registration as a pharmacist.  The unique circumstances of an older and retired pharmacist make it very difficult to use the sanction agreed as any guide to determining sanction in this case.
48. [48]
    In Pharmacy Board of Australia v Jattan,^[11] the pharmacist was convicted of an offence against s 285A of the Health (Drugs and Poisons) Regulation 1996 (Qld) for failing to make and record the sale to a customer of two boxes of AMC Sinus relief containing the active ingredient pseudoephedrine (PSE).  The pharmacist also dispensed to various customers anabolic steroids and other restricted drugs in quantities and combinations which were beyond the extent necessary to practice pharmacy and contrary to the terms of his endorsement.  The pharmacist admitted that he had behaved in a way that constituted unsatisfactory professional conduct and the tribunal suspended the pharmacist’s registration for a period of 12 months, wholly suspended for a period of 12 months and imposed conditions on his registration. 
49. [49]
    Similarly to Mr Dalziel, the pharmacist’s conduct spanned over a period in excess of two years.  However, as stated by the parties in their joint submissions, there are significant factual differences between the cases.  Mr Jattan’s conduct involved two pharmacies, more customers, dispensing of both PSE and anabolic steroids, deletion of dispensing records, large quantities of steroids being unaccounted for in dispensing records and a conviction.  The conduct of Mr Jattan must be viewed as significantly worse than that of Mr Dalziel.
50. [50]
    Pharmacy Board of Australia v Tavakol^[12] involved the sale of PSE products from a pharmacy owned by Mr Tavakol over a 13 month period.  Mr Tavakol admitted that the quantities of PSE obtained by the pharmacy exceeded what the pharmacy was required to stock on a ‘just in time’ basis. Pharmacists are required to stock PSE on a ‘just in time’ basis so as to limit the stock held to that required for a day’s trading.  A report prepared by Queensland Health into the pharmacy recorded that there was a number of recurring sales to customers within minutes.  Whilst maintaining that it was difficult to be aware of such matters in a busy pharmacy, Mr Tavakol admitted that he should have been aware that the pharmacy was being targeted by drug runners. 
51. [51]
    It was accepted that Mr Tavakol had not only failed to properly involve himself in the management of the pharmacy so as to properly discharge his professional responsibilities, he was also aware of the failures of others, including his wife, to discharge their and the pharmacy’s obligations.  Mr Tavakol was found to have engaged in unsatisfactory professional conduct and his registration suspended for a period of one month, with conditions imposed following the period of suspension. 
52. [52]
    The parties submitted that the conduct in Tavakol was ‘demonstrably less’ serious than the conduct of Mr Dalziel.  However, the judgment reveals that, as distinct from the present case, Mr Tavakol attempted to absolve himself of responsibility by sheeting responsibility to his wife, Ms Naghdi, who was the manager of the pharmacy.  By contrast, Mr Dalziel has acknowledged that his conduct was wrong, is remorseful for his conduct and has accepted responsibility for his actions. 
53. [53]
    The final case referred to as a comparative case in the parties’ joint submissions is Health Care Complaints Commission v Ahmad.^[13]  The pharmacist in that case supplied significant quantities of Schedules 4, 4D and 8 drugs without prescription; created false dispensing records in the pharmacy computing system in relation to these drugs; created false records in the Schedule 8 drug register; failed to record prescriptions in the Schedule 8 drug register; failed to ensure an entry in the Schedule 8 drug register was accurate; failed to keep the key to the Schedule 8 drug safe secure; and was unable to account for missing quantities of Schedule 4, 4D and 8 medications in addition to those that were falsely dispensed. 
54. [54]
    The pharmacist contested the matter and claimed he did not supply any of the relevant drugs without a prescription.  He admitted to making false dispensing records in fictitious names, but claimed that was to balance stock and did not actually dispense the drugs.  NCAT found the pharmacist was not credible and that he deliberately engaged in the conduct.  The pharmacist was found to have engaged in professional misconduct and unsatisfactory professional conduct.  He was reprimanded, his registration cancelled and he was precluded from reapplying for registration for a period of two years.
55. [55]
    The conduct in Ahmad is of such a nature that the sanction given in that case is of no assistance to the tribunal in determining sanction in the present case.  Mr Dalziel has not contested the matter, there have been no adverse findings of credibility and there were no instances of supplying Schedule 8 drugs without a prescription.
56. [56]
    None of the cases referred to in the joint submissions support the sanction proposed by the parties.  The conduct in Brenton and Jattan was actually more serious than the conduct of Mr Dalziel.  Mr Jattan did not receive an actual period of suspension; let alone a three month period.  The legislation was different at the time of the decision in Jattan and permitted the giving of suspended sentences; making the comparison even more difficult.
57. [57]
    The conduct in Tavakol was probably more serious than that of Mr Dalziel, involving the drug PSE and the shifting of blame to others; yet he received only a one month suspension.
58. [58]
    None of the cases support a fine being imposed as well as a three month suspension. 

Other Cases

59. [59]
    In determining the permissible range of sanction to impose, the Tribunal therefore found it necessary to have regard to further cases involving similar conduct decided by this Tribunal as well as equivalent Tribunals in other states.
60. [60]
    In Medical Board of Australia v Dolar,^[14] the Board had taken disciplinary action against a doctor in relation to prescription of steroids and other medications to seven patients over a five year period.  Three of those patients presented to the doctor as body builders, while the fourth was aggressive and intimidating.  The tribunal noted it was reasonable to assume the patients targeted the practice where the doctor worked and continued to consult her because of her willingness to prescribe the drugs requested without assessment.  The tribunal stated that the quantities prescribed exceeded therapeutic doses and the combinations prescribed were not usual.  The doctor admitted to unsatisfactory professional conduct. 
61. [61]
    In Dolar, the tribunal considered that decisions made in relation to sanction in disciplinary proceedings involving pharmacists could also be used as comparative cases in disciplinary proceedings involving doctors. The tribunal commented, “Although regulated by different professional boards, they share common professional obligations in relation to the supply of drugs liable to misuse and abuse.”^[15]  In referring to the pharmacist cases, the tribunal observed that in a number of recent cases the tribunal had imposed a short period of suspension but had suspended the order provided the pharmacist was not subject to further disciplinary action in a specified period.
62. [62]
    Acting on joint submissions from the parties, the tribunal reprimanded Dr Dolar and imposed conditions on her registration for a period of 12 months.  Those conditions included a period of close supervision of her prescribing practises. 
63. [63]
    Referring to past authorities involving pharmacists, the tribunal commented that the suspension of Dr Dolar was certainly open on the facts.  However, owing to the doctor nearing the end of her professional career, the actions taken by Queensland Health in relation to her endorsement and the steps taken by the doctor to increase her knowledge and skill in the area, the tribunal determined a suspension was not necessary. 
64. [64]
    In Medical Board of Australia v Grant,^[16] the Board brought disciplinary proceedings after Queensland Health cancelled Dr Grant’s endorsement to prescribe certain classes of restricted drugs.  The doctor agreed that he had inappropriately prescribed medications to 14 patients who attended on him at his GP practice.  The patients were treated over varying periods, the longest period being nine years.  Seven patients were seen over much shorter terms.  There was no therapeutic basis for prescribing the drugs to the patients; the patients were members of the body-building community. 
65. [65]
    The tribunal found that, as a medical practitioner, Dr Grant could have been in no doubt that steroid use for body building purposes was not a therapeutic use and that to prescribe them for that purpose was outside the terms of his endorsement.  There was some evidence which suggested the drugs were being diverted by the patients for trading in drugs.  While the parties proposed a reprimand and conditions to be placed on Dr Grant’s registration for a period of 12 months, the tribunal expressed concerns about the adequacy of the penalty. 
66. [66]
    The tribunal made orders suspending Dr Grant’s registration for a period of 12 months, wholly suspended for a period of two years if he complied with the conditions imposed on his registration and was not subject to further disciplinary action by the Board.  The conditions were imposed for a period of three years.  Dr Grant was further ordered to pay the Board’s costs of and incidental to the proceedings.  The conduct of Dr Grant was significantly more serious than the present case, involving both a longer period of time and more patients.
67. [67]
    In the related case of Pharmacy Board of Australia v Booy,^[17] a young pharmacist with only a couple years’ experience had dispensed anabolic steroids to a customer in quantities well exceeding the usual dosage and in combinations not usually seen.  The prescriptions had been written by Dr Grant.  Similarly to Mr Dalziel, the pharmacist worked long hours and was the sole pharmacist on-site for the majority of that time. Unlike Mr Dalziel, Mr Booy was dispensing on the basis of a prescription but was aware that the prescribing and use was unusual.  He did take some steps to address it including contacting the prescribing doctor.
68. [68]
    The pharmacist’s registration was suspended for a period of three months, wholly suspended for a period of 12 months if he complied with the conditions imposed on his registration and was not subject to further disciplinary action.  He was ordered to pay the Board’s costs of the proceeding.
69. [69]
    Pharmacy Board of Australia v Donnelly^[18] involved a junior pharmacist who dispensed a significant quantity of anabolic steroids to a single customer over a ten month period.  Whilst conceding that she had engaged in unsatisfactory professional conduct, Ms Donnelly continued to deny that she had dispensed outside the terms of her endorsement.  It was accepted this showed a continuing lack of insight; something which is certainly not present here. 
70. [70]
    Ms Donnelly’s registration was suspended for six months, wholly suspended for a period of 12 months provided there was no further disciplinary action; recognising her youth, professional immaturity, the fact that she derived no personal or financial benefit from her actions and her otherwise good character.  She was also required to complete a tertiary module of ethical decision-making and pay the Board’s costs agreed at $15,000.
71. [71]
    In the related case of Pharmacy Board of Australia v Smith,^[19] the Board brought disciplinary proceedings against an experienced pharmacist who had also dispensed anabolic steroids to the same customer as in Donnelly.  All the scripts filled by the pharmacist were valid and under the hand of a doctor known to him.  However, the pharmacist conceded that he ought to have known that the quantity and combinations of restricted drugs he dispensed were not necessary for a therapeutic purpose.  The tribunal found that the pharmacist had demonstrated insight about his actions and had changed his dispensing practises.  The tribunal imposed orders in near identical terms to those in Donnelly; the tribunal noted that, while Ms Donnelly was a junior pharmacist, she had shown less insight into her conduct than Mr Smith.  Mr Smith had also agreed to pay the Board’s costs.
72. [72]
    In considering comparative cases, the tribunal has also had regard to a number of cases involving the improper dispensing of PSE.  Cases involving the improper dispensing of PSE are generally considered to be of a more serious nature due to PSE’s use in the development of illicit drugs, namely amphetamines, and the subsequent increase in risk to the public.  Nevertheless, they involve similar considerations of professional duties and obligations and may assist the tribunal in determining sanction.
73. [73]
    In Pharmacy Board of Australia v Naghdi,^[20] the tribunal found that the pharmacist had engaged in professional misconduct. Ms Naghdi was the manager of the pharmacy owned by Mr Tavakol.  Over a period of two years, the pharmacy frequently supplied large quantities of PSE to customers in circumstances where Ms Naghdi knew the pharmacy was being targeted by drugs runners.  She was suspended for a period of six months suspended after a one month operational period.  In Naghdi the tribunal had indicated that but for the fact that Ms Naghdi would have lost her employment if a period of actual suspension of more than one month was imposed, the tribunal would have suspended her registration for an actual period of three months. Conditions were also imposed on Ms Naghdi’s registration and she was ordered to pay costs.
74. [74]
    In the related case of Pharmacy Board of Australia v Hung,^[21] the pharmacist facilitated sales of significant quantities of PSE over a six month period.  In the circumstances, the tribunal did not consider that professional misconduct had been made out.  The tribunal commented on Mr Hung’s inexperience and said that his conduct was considrerably less serious than the conduct of Mr Tavakol and Ms Naghdi.   Mr Hung was reprimanded and conditions were imposed on his registration.  No suspension was ordered but Mr Hung was required to pay the Board’s costs.
75. [75]
    In Pharmacy Board of Australia v Ciriello,^[22] the parties sought a finding that Mr Ciriello had behaved in a way that constituted unprofessional conduct.  The tribunal did not have to determine whether the conduct was professional misconduct.  Immediate action had been taken by the Board and conditions imposed on Mr Ciriello’s registration.  Those conditions had been satisfied by the time the matter came on for determination by the tribunal. His endorsement to deal with Schedule 4 drugs (and Schedule 2 and 3 poisons containing the active ingredient PSE) was cancelled by Queensland Health for a period of 12 months.
76. [76]
    Mr Ciriello, who was the owner of the pharmacy, admitted to the contraventions of the regulation relating to the sale of PSE over a period of two years, noting that a number of the sales of PSE were supported by prescriptions from doctors.  Mr Ciriello had been responsible, however, for dispensing the greatest number of multiple packs of PSE at the pharmacy.  There had also been a failure to record 15 percent of transactions involving PSE.
77. [77]
    Mr Ciriello was suspended for a period of two months and conditions were imposed on his registration.  In contrast to Mr Ciriello, Mr Dalziel was a relatively young practitioner.  Mr Ciriello had deposed to a number of matters which the tribunal described as misguided beliefs, including his obligation to make an independent assessment despite the existence of a doctor’s prescription.
78. [78]
    In the related matter of Pharmacy Board of Australia v McAllan,^[23] McAllan had likewise been involved in the dispensing of PSE from the same pharmacy.  Immediate action had also been taken against Mr McAllan.  Mr McAllan was reprimanded and the agreement reached to pay the Board’s costs was considered appropriate.  Given the conditions which had been imposed for some time through immediate action, the Board did not seek a period of suspension.  It was considered an aggravating factor against Mr Ciriello, in contrast to Mr McAllan, that he was both the dispensing pharmacist on occasions and the owner of the pharmacy with general management obligations.
79. [79]
    In Medical Board of Australia v Andersen,^[24] an experienced doctor inappropriately prescribed PSE to six patients over a period of nearly three and a half years.  The tribunal viewed it as appropriate that the doctor’s registration be suspended for a period of one month, noting that had it not been for his demonstrated otherwise good character and his commitment to the community, a suspension of three months would have been appropriate.
80. [80]
    The more extensive case comparisons suggests that the range of sanctions varies from a reprimand to suspension of registration.  Any such range cannot be considered as a precedent indicating what is ‘correct’^[25].  Earlier decisions at best can be considered if they demonstrate some discernible range or pattern of outcome and particular care must be taken to consider the facts of each case.
81. [81]
    Any direct comparison becomes difficult given that in many of the cases the sanctions were imposed under a different statutory regime; a regime which permitted the suspension of a suspension.  In Anderson, it was said the primary sanction in each instance was the suspension of registration and that the suspension of the decision to suspend was secondary.  However, particular reliance on the primary sanction imposed in conducting case comparisons could work significant injustice, given that in many cases the effect of the decision is that no period of actual suspension was imposed.  The correct approach is to look at the totality of the decision.
82. [82]
    The conduct of the practitioners in each of the cases of Dolar, Grant, Naghdi, Tavakol and Ciriello was more serious than that of Mr Dalziel.  None of them had their registration actually suspended for three months.  Likewise, Andersen involved more serious conduct, but his registration was only suspended for one month.  Each had significant conditions placed on their registration.
83. [83]
    The closest cases factually in terms of misconduct are Donnelly and Smith; though Donnelly (and the related case of Smith) both had prescriptions for the medications but in such quantities that they ought to have asked questions.  However, Ms Donnelly showed significantly less insight and remorse for her offending conduct.  Their registration was suspended for six months but this was itself suspended for 12 months. 

Oral Hearing

84. [84]
    The parties were referred by the Tribunal to some of these cases when the parties were invited to make submissions in support of the agreed sanction.  The parties were told that the Tribunal has had regard to the case authorities referred to in the joint submissions and other cases including Donnelly, Dolar and Naghdi.  The parties were told that the Tribunal wished to reconvene to consider whether or not the sanction proposed in the joint submissions was excessive and whether the costs order was appropriate.
85. [85]
    At the oral hearing, counsel representing the Health Ombudsman referred only to the case of Donnelly and to particular observations made in Andersen.  The Health Ombudsman did not refer to any other authorities which might support the joint position of the parties or the continuing position of the Health Ombudsman.
86. [86]
    The Health Ombudsman accepted that there were no cases where a suspension, fine and conditions were imposed.  Counsel referred to the balancing act that was proposed in the joint submissions about how each of the three levers might be deployed.  The Health Ombudsman conceded that a fine of $20,000 was a large fine in circumstances where the maximum able to be imposed by the Tribunal under the legislation is $30,000.^[26]  It was said, the suspension proposed was a modest one and so a large fine was necessary and the imposition of conditions was appropriate.
87. [87]
    The submissions in the end emphasised that “[g]eneral deterrence, in a case such as this, is of supreme importance.”  Counsel said the tribunal must ask itself what is a sufficient deterrent in this case.  Counsel said that what would have initially been put by the Health Ombudsman would have been that a suspension greater than three months would have been appropriate to act as a general deterrent to this particular practitioner and to send a message to the profession at large.  Counsel stated that if there was a concern about the fine, the fine would be the part of the totality of the balancing exercise which would be abandoned.
88. [88]
    In making reference to Donnelly, whilst referring to the six month suspension imposed and that suspension having been wholly suspended, counsel stated that it was difficult to derive any great comfort or instruction in circumstances where the levers available were different from the levers which are now available.  That fact, as stated earlier, makes the comparison with the sanction imposed in Donnelly and the other cases relied upon difficult; but, even so, those cases show the harshness of the sanction sought to be justified in this case.
89. [89]
    Counsel referred to Andersen’s case and the comments by Deputy President Horneman-Wren SC DCJ, where he said that the primary sanction is the suspension and the suspension of the decision to suspend was secondary. It was on that basis that counsel said the comparative cases should be considered.
90. [90]
    For his part, Mr Dalziel referred to the cases specifically mentioned in the email correspondence to the parties and made reference to additional cases found by him.  Mr Dalziel gave a fair and objective assessment of those cases and explained that he now felt the sanction proposed was excessive.
91. [91]
    Mr Dalziel referred to the mitigating factors including the changes he had made in his life in the long intervening period and the benefits of his remaining in his current working environment.  He confirmed that a three month suspension would leave him with no guarantee that he will keep his job but said he was confident that a one month suspension would.
92. [92]
    Mr Dalziel explained at the oral hearing that he felt pressured at the compulsory conference into agreeing to the sanction proposed and he now wished to advocate for a lesser penalty and no order as to costs.  He referred to paying the price of certainty and of wishing to bring the proceedings finally to an end because of the financial and emotional stress they had caused.

Conclusion on Sanction

93. [93]
    The Tribunal considers that a one month suspension can achieve the legislative purpose.  A suspension combined with the proposed conditions appropriately reflects the circumstances of this case and the need for general deterrence; it being accepted there is no requirement for personal deterrence. 
94. [94]
    Pharmacists are “the last line of defence in the system to regulate access to medications.”  A breach of that trust undermines the system and is a serious departure from the standard expected of pharmacists in the pharmacy profession.  It requires a clear message of denunciation.
95. [95]
    Having imposed a period of suspension with conditions, the Tribunal does not consider it is necessary or appropriate to also impose a fine.  It is difficult to view the imposition of a fine as anything other than punitive on the facts of this case. 

Costs

96. [96]
    The invitation to the parties to make further submissions extended to the agreed order as to costs.

Power to Award Costs

97. [97]
    The power of the Tribunal to award costs is pursuant to the QCAT Act.  The starting position under that Act is that each party bears its own costs unless the interests of justice require an order for costs to be made.
98. [98]
    Section 102(3) of the QCAT Act gives the Tribunal guidance as to the matters that it may have regard to in considering whether the interests of justice require a costs order including, as identified by the Health Ombudsman in its submissions, the nature and complexity of the dispute, the relative strengths of the claims made by each of the parties, the financial circumstances of the parties and anything else the Tribunal considers relevant.
99. [99]
    The question for the Tribunal has been formulated as:

…whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.^[27]

100. [100]
     The Court of Appeal in Medical Board of Australia v Wong described it as “a basis for departing from the default position.”^[28]  Judicial Member the Honourable James Thomas AM QC in Health Ombudsman v Antley said the proper approach for the Tribunal is whether there are “countervailing considerations”.^[29]  In Antley, Judicial Member Thomas said:

Different factors may well operate in commercial litigation to make it in the interests of justice to order costs against the losing party to those in cases in the disciplinary jurisdiction concerning health workers.^[30]

101. [101]
     Judicial Member Thomas referred to the change in the nature of the disciplinary jurisdiction to include not only “health practitioners” but also “health service providers” and so extending the regime to employees on wages, many of whom are on relatively low incomes; the apparent escalation in the quantum of costs generally and the potential crippling effect of some orders with the potential punitive element.  Judicial Member Thomas referred to the fact that, in his experience, costs assessments of $40,000 and above are not uncommon.

Submissions as to Costs

102. [102]
     In seeking to maintain the agreement as to costs, counsel for the Health Ombudsman relied upon the fact that the Health Ombudsman was funded to take these kinds of disciplinary steps against aberrant practitioners through the contributions of practitioners of good standing.  Counsel submitted, the Health Ombudsman, like the professional boards, is exclusively funded by registrants.  When challenged as to whether this was right in fact, he accepted that currently it was not the case but said that was the intended position of the legislation.
103. [103]
     Counsel submitted there was an injustice in practitioners of good standing having to fund this kind of proceeding, and that if practitioners were aware of the aberrant behaviour of another practitioner they would have a (financial) reason to do something about it.
104. [104]
     Counsel for the Health Ombudsman also submitted that because the Health Ombudsman was a regulatory authority and required to bring these referral proceedings, it was entitled to its costs.
105. [105]
     Mr Dalziel referred to the comments made by Judicial Member Thomas in Antley where he talked about the entire sanction not being proportional to the conduct in question.  Mr Dalziel referred to what he described as the countervailing considerations; the punitive effects of a costs order, the legislative and administrative changes which have occurred in relation to the operation of the Tribunal and the handling of health practitioners and the resultant tendency for costs orders to become oppressive.
106. [106]
     Mr Dalziel referred to his own conduct throughout, the multiplication of bureaucracies and to the financial burden already imposed.  He confirmed that he had already spent $30,000 on his legal defence since the proceedings were commenced in the Tribunal.  He estimated his expenses would be in excess of $50,000 responding to the repetitive investigations by the co-regulators over a number of years.

Conclusion on Costs

107. [107]
     The Tribunal rejects the submissions made on behalf of the Health Ombudsman that because the Health Ombudsman was a regulatory authority and must bring the proceedings, it was entitled to its costs.  This submission is inconsistent with the provisions of s 102 of the QCAT Act and both the reasons and decision of the Court of Appeal in Wong.
108. [108]
     The nature of the proceedings, being by a regulatory body, is obviously a factor to be considered by the Tribunal in the exercise of its discretion, but it can be put no higher than that.
109. [109]
     The fact that the Health Ombudsman is at best partly funded by registrants is also another factor to consider; given that it reflects the nature of the proceedings.
110. [110]
     Whether that factor works in the way submitted by Mr Hickey for the Health Ombudsman is another matter.  It would be hoped professionals would be willing to maintain professional standards independent of any financial incentive, and would be willing to contribute to any system that insured that result.
111. [111]
     Most professionals belong to voluntary bodies that endeavour to maintain professional standards, quite independently of public funding or the possibility that their costs will be recovered from a misbehaving member.
112. [112]
     In the long run, all professionals benefit from the upholding of professional standards, and it is consistent with that fact that they contribute to the cost of maintaining them.  This is reflected in the legislation which makes this jurisdiction fundamentally a no cost jurisdiction.
113. [113]
     The decisions which gave preferred status to the professional boards on the question of costs of disciplinary proceedings should be now read as subject to s 102 and in light of the decision in Wong.  The comments referred to by Judicial Member Thomas in Antley also have much to commend them.
114. [114]
     Against the fact that the Health Ombudsman must bring proceedings if a certain state of mind exists and that it is (at least partially) funded by registrants are the facts that Mr Dalziel confessed at the earliest opportunity, he never protracted the proceedings in any way, he was subjected to a multiplicity of investigations, he is a wage earner on a fixed income and the sole provider for his family of five.  He has already incurred a substantial financial burden.
115. [115]
     The Tribunal is not satisfied that any countervailing factors justify the making of a costs order in the interests of justice. 

Orders

116. [116]
     In proceeding to make the orders, given the time of the year and the effect that the suspension of Mr Dalziel might have on his employer and the hospital where he works, it would not be appropriate to have the suspension commence immediately.  If the suspension is ordered to be commenced on 1 February 2018 that should enable the hospital to put its affairs in order.  There will be liberty to apply in the event that the timing of the suspension will present a difficulty for the hospital.
117. [117]
     Accordingly, the Tribunal orders that:

     1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.
     2. Pursuant to s 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent is suspended for a period of one month commencing on 1 February 2018.
     3. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes conditions on the registration of the respondent in accordance with the attached schedule of conditions.
     4. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, Part 7, Division 11, Subdivision 2 applies to the conditions.
     5. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is 12 months from the date of this order.
     6. There be no order as to costs.
     7. There be liberty to apply.

Schedule of Conditions

1. John Hunter Dalziel (the practitioner) must practice only in a Pharmacy Board (the Board) approved position. For the purpose of these conditions the practitioner’s current employment as a manager of pharmacy with HPS Pharmacies at the Gold Coast Private Hospital is approved.
2. The practitioner must undergo a period of mentoring for not less than two (2) hours per month for twelve (12) months.
3. The mentoring must be face to face and focus on:

1. ethical decision making and dispensing; and
2. strategies to resist pressure to dispense.

4. For the purpose of conditions 2 and 3 above, the practitioner is to nominate a mentor for the approval of the Board, who must be a pharmacist practicing in an accredited pharmacy and senior to the practitioner in age and experience.
5. The mentor must provide a report in writing to the Board every three (3) months and upon completion of the mentoring period.
6. The practitioner must complete an education course in ethical decision making within twelve (12) months. The course must include a formal assessment competent and is to be nominated by the practitioner and approved by the Board. At the completion of the course the practitioner must submit to the Board documentary evidence of completion and a reflective practice report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to this condition and how the practitioner has incorporated the lessons learnt in the education into the practitioner’s practice.
7. The practitioner must complete an accredited course on appropriate dispensing of medicines within twelve (12) months. The course must include a formal assessment component and is to be nominated by the practitioner and approved by the Board. At the completion of the course the practitioner must submit to the Pharmacy Board documentary evidence and a reflective practice report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to these conditions and how the practitioner has incorporated the lessons learnt in the education into the practitioner’s practice.
8. The practitioner is to be responsible for paying all costs associated with compliance with these conditions.
9. The practitioner authorises representatives of the Board to contact and exchange information with the facility where he works (whether it be pharmacy or hospital), the mentor and the education facility/s, at such time or times as the Board shall determine, for the purposes of monitoring his compliance with the conditions of his registration.
10. The practitioner is to notify his employer of the orders of the Tribunal.