Health Ombudsman v Cassingham
[2019] QCAT 358
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Health Ombudsman v Cassingham[2019] QCAT 358
- Add to List
Health Ombudsman v Cassingham[2019] QCAT 358
Health Ombudsman v Cassingham[2019] QCAT 358
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Health Ombudsman v Cassingham [2019] QCAT 358 | ||||||||
PARTIES: | Health Ombudsman | ||||||||
(applicant) | |||||||||
v | |||||||||
Thomas Brian Cassingham | |||||||||
(respondent) | |||||||||
APPLICATION NO/S: | OCR113-18 | ||||||||
MATTER TYPE: | Occupational regulation matters | ||||||||
DATE OF DECISION: | 26 November 2019 | ||||||||
DATE OF REASONS: | 5 December 2019 | ||||||||
HEARING DATE: | On the papers | ||||||||
HEARD AT: | Brisbane | ||||||||
DECISION OF: | Judge Allen QC, Deputy President Assisted by: Ms A Bains Ms K Huxhagen Mr K Hargreaves | ||||||||
ORDERS: |
| ||||||||
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the applicant instituted disciplinary proceedings against the respondent for criminal conduct – where the criminal conduct involved the respondent’s conviction on his own pleas of guilty for one offence of fraud, three offences of forgery, two offences of uttering a forged document, two offences of stealing as a servant and one offence of fraudulently falsifying a record – where the respondent engaged in the conduct for the purpose of obtaining oxycodone for his own use – where the respondent had developed a reliance upon opioids following a serious shoulder injury – where the use of opioids assisted in the management of the respondent’s physical symptoms as well as symptoms of undiagnosed mental health problems – where the respondent has cooperated in the proceedings – where the respondent has undergone appropriate treatment for his health issues – where the respondent has served a de facto suspension of approximately four years – where the parties agree as to the characterisation of the conduct as professional misconduct – where the parties agree as to the appropriate sanction – whether the sanction proposed is appropriate Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107 Health Practitioner Regulation National Law (Queensland), s 5 Health Ombudsman v DeCelis [2019] QCAT 140 Pharmacy Board of Australia v Chrenowski [2011] SAHPT 26 Pharmacy Board of Australia v Christie [2016] QCAT 291 Pharmacy Board of Australia v Dougherty [2014] SAHPT 6 | ||||||||
| |||||||||
REASONS FOR DECISION
- [1]The Director of Proceedings on behalf of the Health Ombudsman (“the applicant”) referred a health service complaint against Thomas Brian Cassingham (“the respondent”) to the Tribunal pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (“HO Act”). At the request of the parties, the matter was heard and determined on the papers and, on 26 November 2019, the Tribunal made the above orders. These are the reasons for the Tribunal’s decision.
- [2]The applicant sought a finding that the respondent pharmacist had engaged in professional misconduct by reason of criminal conduct relating to his misuse of Schedule 8 controlled drugs. The parties agreed as to the relevant facts, including the facts of the conduct, its characterisation as professional misconduct and as to appropriate orders for sanction.
- [3]The respondent first obtained registration as a pharmacist in early 2012 and was then employed as a pharmacist at a number of Brisbane suburban pharmacies up until August 2015. On 31 August 2015 the respondent commenced a temporary 3 month part-time employment contract and was employed two days per week at a Brisbane public hospital until 19 October 2015 when he was suspended from duty. It was during such period of part-time employment that the conduct occurred.
- [4]On 14 September 2015 the respondent forged a dispensing label at the hospital pharmacy for a 20 x 5mg tablet box of oxycodone, created a false notation in the pharmacy Schedule 8 controlled drug register and stole the box of oxycodone tablets from the hospital pharmacy. On 18 September 2015 the respondent forged a document, a handwritten prescription for one box of 20 x 10 mg capsules of oxycodone in the name of a patient. On 19 September 2015 the respondent presented the prescription to a pharmacy where he had previously been employed and obtained one 20 x 10 mg tablet box of oxycodone. The respondent was requested by the pharmacy to replace his handwritten prescription with one in the correct format and the respondent later forged a replacement prescription from a template of his own prescription and on 28 September 2015 forwarded that to the pharmacy. On 6 October 2015 the respondent stole one 20 x 5mg tablet box of oxycodone from the controlled drug safe of the hospital pharmacy.
- [5]The respondent was charged with criminal offences relating to his conduct. On 1 June 2016 the respondent appeared in the Magistrates Court at Brisbane and pleaded guilty to one offence of fraud, three offences of forgery, two offences of uttering a forged document, two offences of stealing as a servant and one offence of fraudulently falsifying a record. The respondent was ordered to be subject to a probation order for a period of 2 years with a special condition that he subject to such medical, psychiatric or psychological assessment and treatment as directed. No convictions were recorded.
- [6]The respondent placed evidence before the Tribunal, not challenged by the applicant, outlining the circumstances under which he developed a dependence upon opioids and engaged in the conduct the subject of the referral. The respondent suffered a bicycle accident in early September 2013 and suffered a complex clavicular fracture requiring a shoulder reconstruction and follow-up surgery. The respondent found that opioids and analgesia appropriately prescribed to relieve his physical pain also eased the symptoms of then undiagnosed anxiety and depression. Between 2013 and 2016 the respondent had further accidents and acquired more opioids and became increasingly dependent upon the drugs. It was in these circumstances that the conduct occurred.
- [7]The respondent’s conduct clearly amounts to professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland). The Tribunal found, pursuant to section 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct.
- [8]The respondent’s employment was suspended on 19 October 2015 and he has not worked as a pharmacist since. The respondent’s registration expired on 30 November 2015 after he failed to renew it. The parties submit and the Tribunal accepts that the period of approximately four years that the respondent has not held registration should be regarded as a de facto suspension of registration and taken into account when determining sanction and, in particular, whether any further preclusion from practice is required.
- [9]The respondent obtained appropriate treatment for his mental health issues and successfully addressed his drug dependence. He has managed to abstain from abuse of drugs even after a further bicycle accident required the prescription of opioid analgesia. He has obtained and held gainful employment outside the health profession.
- [10]The respondent pleaded guilty to the criminal charges, co-operated in the conduct of the proceedings before the Tribunal and the Tribunal accepts that the respondent is genuinely remorseful for his misconduct. The respondent has demonstrated considerable insight into the issues which led to his misconduct and the Tribunal accepts that there is little risk of him engaging in further misconduct.
- [11]The parties jointly submit that an appropriate sanction is a reprimand. The applicant does not seek any further preclusion from practice in circumstances where there has been an effective preclusion from practice of about four years.
- [12]In determining an appropriate sanction for the respondent’s misconduct, the health and safety of the public are paramount. The purpose of the disciplinary proceedings and any sanction imposed is protective, not punitive. The determination of sanction remains a discretionary matter for the Tribunal notwithstanding any agreement between the parties, however the Tribunal ought not to depart from a proposed sanction agreed between the parties unless it falls outside of permissible range of sanction.
- [13]The applicant referred to decisions of Pharmacy Board of Australia v Dougherty [2014] SAHPT 6, Pharmacy Board of Australia v Chrenowski [2011] SAHPT 26 and Pharmacy Board of Australia v Christie [2016] QCAT 291 in support of the submissions on sanction. The Tribunal also had regard to the decision of Health Ombudsman v DeCelis [2019] QCAT 140.
- [14]The Tribunal accepted that a reprimand would be an appropriate order by way of sanction in this matter. The respondent’s misconduct was a serious breach of his professional and legal obligations and involved a gross breach of the trust expected of him by his employer and the public. The respondent’s conduct deserved denunciation by the Tribunal.
- [15]The applicant did not submit that there would be any reason for the Tribunal to depart from the ordinary position that the parties bear their own costs of the proceedings and that was reflected in the orders of the Tribunal.