O'Reilly v Queensland Health
[2019] QCAT 142
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- Unreported Judgment
- O'Reilly v Queensland Health[2019] QCAT 142
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O'Reilly v Queensland Health[2019] QCAT 142
O'Reilly v Queensland Health[2019] QCAT 142
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | O'Reilly v Queensland Health [2019] QCAT 142 |
PARTIES: | MARTIN JAMES O'REILLY (applicant) v QUEENSLAND HEALTH (respondent) |
APPLICATION NO/S: | GAR118-19 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 6 June 2019 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judge Allen QC, Deputy President |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant is a registered pharmacist – where the applicant has applied for a review of the decision of the respondent to cancel the applicant’s endorsements in relation to Schedule 8 controlled drugs, Schedule 4 restricted drugs and Schedule 2, Schedule 3 and Schedule 7 poisons pursuant to s 25 of the Health (Drugs and Poisons) Regulation 1996 – where the applicant has applied to stay the decision – whether desirable to grant a stay Health (Drugs and Poisons) Regulation 1996, s 23, s 25 Health Practitioner Regulation National Law, s 156 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 22 Bui v Queensland Law Society Incorporated [2017] QCAT 441 King v Queensland Law Society Incorporated [2012] QCAT 489 Legal Services Commissioner v Baker (No.1) [2006] 2 Qd R 107 |
REPRESENTATION: | |
Applicant: | Purcell Taylor Lawyers |
Respondent: | Crown Law |
APPEARANCES: | |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]The applicant is a registered pharmacist. On 4 March 2019, the delegate of the Chief Executive of Queensland Health decided, pursuant to s 25 of the Health (Drugs and Poisons) Regulation 1996 (“the Regulation”) to urgently cancel the applicant’s endorsements in relation to Schedule 8 controlled drugs, Schedule 4 restricted drugs and Schedule 2, Schedule 3 and Schedule 7 poisons (“the decision”). The applicant has applied to the Tribunal to review the decision.
- [2]The applicant has also applied for an order staying the operation of the decision. Both parties have applied for leave to be represented in the proceeding.
The parties’ applications for leave to be legally represented
- [3]The applicant submits that the review proceedings “relate to… reviewing a decision about taking disciplinary action, against a person” within the terms of s 43(2)(b)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) so that the parties may be represented as of right and leave is not required. The respondent has not addressed that issue. Given the view I have taken regarding leave, it is not necessary to resolve the issue of whether these proceedings do come within the terms of s 43(2)(b)(ii) of the QCAT Act.
- [4]Both parties have applied for leave to be legally represented. The considerations listed in s 43(3) of the QCAT Act support the giving of leave. Pursuant to s 43(2)(b)(iv) of the QCAT Act, both parties have leave to be legally represented.
The application for a stay
- [5]I have had regard to the following material:
- (a)Application to review a decision filed on 8 April 2019;
- (b)Application to stay a decision filed on 8 April 2019;
- (c)affidavit of the applicant sworn on 3 May 2019;
- (d)written submissions of the applicant;
- (e)affidavit of Clay Ronald Butler filed by the respondent on 17 May 2019; and
- (f)written submissions on behalf of the respondent filed on 17 May 2019.
- (a)
- [6]The applicant was employed as a pharmacist up until about 20 November 2018. On about 15 November 2018, it was discovered through an internal audit of the pharmacy that the applicant had been systemically diverting the schedule 8 controlled drugs Ritalin and Artige (methylphenidate) for his own use. On about 19 November 2018 the applicant was confronted by his employer and admitted to taking the drugs for his own use and his employment was terminated.
- [7]The full extent of the applicant’s misappropriation of controlled drugs is yet to be clarified but the material before the Tribunal suggests that it may have been as many as 180 boxes (18,000 10 mg tablets) during 2018, and that the misappropriation may have been occurring from as early as 2014 onwards. It appears clear that the applicant has altered pharmacy records to avoid detection of his misappropriation. Such falsification of records has included writing fictitious prescriptions for numerous patients of the pharmacy and issuing false prescriptions under the guise of local medical practitioners.
- [8]The Australian Health Practitioner Regulation Agency (“AHPRA”) and the Office of the Health Ombudsman (“OHO”) and the respondent were notified about the applicant’s conduct.
- [9]After considering submissions from the applicant, in which the applicant indicated he had discontinued use of methylphenidate and sought medical, psychological and psychiatric treatment, AHPRA decided to take immediate action under s 156 of the Health Practitioner Regulation National Law (“the National Law”) by accepting an undertaking from the applicant not to practise.
- [10]APHRA referred the applicant for a health assessment and subsequently received a report of Dr Nigel Prior dated 14 February 2019. Dr Prior opined that the applicant had a Substance Use Disorder (Stimulants) and an Adjustment Disorder with Mixed Anxiety and Depressed Mood which detrimentally affected or were likely to detrimentally affect his capacity to practise the profession. Dr Prior considered that both conditions were then in the early stage of remission but that it would not yet be appropriate for the applicant to return to the workforce until after a further period of documented abstinence from methylphenidate and positive reports from his treating psychiatrist and psychologist as to his progress in recovery. Dr Prior was of the opinion that, if the applicant had negative drug screens and positive reports from his treating practitioners over at least a three month period, then he would be considered fit to commence a graduated return to work with conditions on his registration requiring continued treatment, drug screening and supervision. He expressed the opinion that the applicant should only dispense Schedule 8 medications in the company of another pharmacist.
- [11]The applicant has exhibited to his affidavit a pathology report regarding specimens collected on 17 December 2018, which is negative for amphetamines. He has also exhibited reports from his treating psychologist, Andrew Pangrazio. In the most of recent report of 2 May 2019, Mr Pangrazio expresses the opinion that the applicant is low risk with returning to his previous pharmacist role under an appropriate return to work plan of supervision, regular reviews and regular drug testing.
- [12]The applicant deposes to having not consumed any methylphenidate since 15 November 2018, and to receiving mental health treatment.
- [13]The applicant submits that the supervision by APHRA of his fitness to practice justifies a stay of the decision of the respondent. He submits that his return to work is entirely dependent upon the decision making of APHRA and the medical opinions of his medical advisers as to whether he is in a position to return to work. He understands that in the event he is able to return to work he will be subject to supervision and/or conditions. The applicant submits that unless the decision of the respondent is stayed then he would be effectively prohibited from returning to work even if APHRA decides that a graduated return to work with conditions is appropriate. The applicant deposes to an understanding that his fitness to return to work would be considered by the Pharmacy Board of Australia on 30 May 2019 with a likelihood of permission to return to supervised duties with restrictions. The applicant submits that APHRA is in the best position to determine his suitability to return to work and that unless the decision of the respondent is stayed, the decision would effectively nullify any decision of APHRA and the Pharmacy Board to implement a return to work for the applicant. The applicant submits that given the involvement of APHRA and the Pharmacy Board it serves no purpose for the decision of the respondent to have effect.
- [14]The applicant further submits that he has reasonable prospects of success in his application for review in that the respondent acted pursuant to s 25 of the Regulation, applicable when urgent action is required, rather than s 24 of the Regulation which would have called for submissions from the applicant prior to the decision. He submits that, given the circumstances of the applicant being subject to an undertaking not to practise at the time of the decision, the respondent could not have been reasonably satisfied of the need to take urgent action and thus ought to have acted pursuant to s 24 of the Regulation instead. The applicant submits that on this basis the applicant is likely to be successful in his application to review the decision.
- [15]The respondent submits that the applicant is currently subject to ongoing investigations by the respondent, AHPRA and OHO. The respondent submits that it is clear from a memorandum of understanding between the three entities (exhibited to the affidavit of Clay Butler) that each undertake separate or coordinated activities. In this matter, in accordance with the memorandum, the respondent’s role was to investigate breaches of the Regulation, while OHO would investigate the applicant’s professional conduct and AHPRA would investigate impairment issues. The respondent points to email correspondence between the respondent and AHPRA and OHO in support of that submission. The respondent submits that AHPRA is not the best entity placed to make findings in relation to the applicant’s suitability and risk level, being primarily concerned with matters pertaining to any current impairment and not the applicant’s prolonged unlawful activity in obtaining the controlled drugs. It is submitted that the Tribunal could not be satisfied that the investigations conducted by AHPRA and any subsequent action by AHPRA adequately ameliorate risk to the public in circumstances where AHPRA only considered matters pertaining to impairment and has not concerned itself with any risk to the public arising from the applicant’s substantial and prolonged breaches of the Regulation. The respondent submits that it is unsafe for the Tribunal, in deciding this stay application, to limit its determinations to the prospective findings of any one entity.
- [16]As to the applicant’s evidence concerning a meeting with the Pharmacy Board on 30 May 2019, the respondent points to an email from AHPRA advising that it cannot confirm that the applicant’s matter will be considered on that day and submits it is unsafe for the Tribunal to rely on the applicant’s pre-emptive claims of a favourable finding by AHPRA as such claims are speculative and not supported by evidence.
- [17]The respondent raises concerns that the applicant may have understated the period of time over which he misappropriated methylphenidate to both AHPRA and his treating medical practitioners. Upon an analysis of the number of tablets that appeared to have been misappropriated during 2018, the respondent raises concerns as to whether the applicant has understated his tablet consumption to Dr Prior or, alternatively, that there remains a large stock pile of unconsumed tablets for which the applicant has not accounted. The respondent submits that such discrepancy also raises concerns with respect to the applicant’s claims around a personal consumption of methylphenidate and refers to the negative drug screening test in that regard.
- [18]The respondent submits the Tribunal should have regard to the potential detrimental impact that the applicant’s conduct has had on the 60 patients whose identities he used to write fictitious prescriptions and the local medical practitioners whose identities were misused in issuing false prescriptions.
- [19]In summary, the respondent contends that a stay should not be granted for the following reasons:
- (a)the applicant’s conduct significantly risked the welfare of patients through the proliferation of erroneous prescription histories;
- (b)the applicant’s conduct was dishonest and evinces a disregard and contempt for regulation and regulatory authority and a willingness to practice outside the regulatory regime;
- (c)the applicant’s claims that AHPRA is likely to permit him to continue to practice is speculative and not supported by evidence;
- (d)the applicant’s contention that AHPRA is the entity that is best placed to decide his suitability and risk level fails to recognise the separate and discrete functions of the respondent and OHO;
- (e)the AHPRA investigation is limited to matters of impairment;
- (f)the applicant’s claim of personal use of methylphenidate is inconsistent with the quantity of tablets diverted by him;
- (g)the applicant’s negative drug test in conjunction with the above inconsistency raises doubts about the applicant’s claim to personal drug use;
- (h)the respondent has strong prospects of success in any substantive hearing of the matter given the applicant’s significant dishonesty and consequent risks to the public;
- (i)the Tribunal can have little confidence that the applicant’s undertaking will protect the public as it can be revoked at any time and the applicant is hopeful the undertaking will cease from 30 May 2019; and
- (j)the applicant’s inability to practise is not a severe consequence in the circumstances and is proportionate to the severity of the applicant’s misconduct.
- (a)
- [20]Section 22(3) of the QCAT Act provides that the Tribunal may make an order staying the operation of a reviewable decision. Section 22(4) provides as follows:
“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.”
- [21]Other matters to be considered include the applicant’s prospects of success in the review proceedings, the effect of any stay on them, and whether irremediable harm might be suffered by the applicant if a stay is not granted.[1] It is not sufficient of itself to justify a stay that the applicant shows that he would be unable to practise until the substantive review proceedings are determined.[2]
- [22]One of the arguments of the applicant as to the prospects of success of the application to review can be disposed of shortly. That is the argument that the application is likely to succeed because the circumstances were not such as to reasonably permit the respondent to act pursuant to s 25 of the Regulation rather than s 24 of the Regulation. Such an argument has little prospects of success given the nature of the review jurisdiction of the Tribunal. The Tribunal will not be hearing an appeal but deciding the review by way of a fresh hearing on the merits.[3] Whether or not the original decision-maker should have acted pursuant to s 24 or s 25 of the Regulation will be of no moment when the Tribunal is making its own decision on the materials before it.
- [23]Other than that matter, I am not in a position at this stage to make any reliable assessment as to the prospects of success of the applicant on the application to review. It is likely that the ultimate decision of the Tribunal will be informed by evidence that is not yet before it. Suffice it to say that at this stage the applicant’s prospects of success do not appear so good as to weigh in favour of a stay of the decision.
- [24]I do not accept the applicant’s submission that the involvement of AHPRA and the Pharmacy Board means that it can serve no purpose for the decision of the respondent to have effect. It is clear from the evidence before the Tribunal that the focus of AHPRA and the Pharmacy Board has been on the issue of impairment and consequent fitness to practise. The decision of the respondent was, and the decision of the Tribunal on the application to review the decision will be, informed by additional matters relating to the applicant’s fitness by reason of his conduct. Section 23(a) of the Regulation provides that it is a ground for suspension or cancellation of an endorsement that the holder of the endorsement is not a suitable person to hold the endorsement. Section 23(e) of the Regulation provides that it is a ground for suspension or cancellation of an endorsement that the holder of the endorsement has contravened a provision of the Regulation. The respondent alleges breaches by the applicant of sections 82, 87 and 94 of the Regulation.
- [25]It is likely that the applicant’s interests will be adversely affected in the interim if a stay is not granted. If a stay is not granted, the decision will effectively prohibit him from practising as a pharmacist. While such factor is not decisive, it is an important factor to weigh in the balance against the public interest when considering if a stay should be granted.
- [26]There is a strong case that the applicant has engaged over the course of some years in a systematic and deceitful misappropriation of controlled drugs. Whether it be solely for feeding his own drug habit or for other purposes, such behaviour is a gross departure from the most fundamental professional obligations expected of a registered pharmacist. The applicant’s conduct calls into question his fitness to practise as a pharmacist and, despite his apparent and recent steps towards rehabilitation, it is too early to say with any certainty that the applicant has demonstrated his fitness to practise and enjoy the public trust involved in any authorisation by endorsements relating to controlled and restricted drugs and poisons. The public interest weighs heavily against the grant of a stay in these circumstances.
- [27]I do not consider it is desirable to make an order staying the operation of the reviewable decision. The application for a stay is refused.