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Health Ombudsman v Hammond[2019] QCAT 402

Health Ombudsman v Hammond[2019] QCAT 402

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Health Ombudsman v Hammond  [2019] QCAT 402

PARTIES:

Health Ombudsman

(applicant)

 

v

 

Christopher John De Lisle Hammond

(respondent)

APPLICATION NO/S:

OCR103-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

25 November 2019 (ex tempore)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Mr John Robertson, Judicial Member

Assisted by:

Mr A Foote

Ms S Harrop

Ms K Kensell

ORDERS:

  1. The Respondent has behaved in a way that constitutes professional misconduct; and
  2. An order in relation to sanction that the respondent is reprimanded under section 107(3)(a) of the Health Ombudsman Act 2013 (Qld); and
  3. The imposition of conditions pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld) in the following terms:
    1. (a)
      The respondent must complete an accredited course on ethical decision making within six months of the tribunal’s decision.  The course must be nominated by the respondent and approved by the Pharmacist Board of Queensland.  At the completion of the course, the respondent must submit to the Pharmacist Board of Queensland documentary evidence certifying his completion of it.
    2. (b)
      The respondent is to be responsible for paying all costs associated with compliance with these conditions.
  4. No order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the respondent was an registered health care professional – where the respondent was a pharmacist – where the respondent accessed a former employers computer without consent – where the respondent was convicted on his own plea of guilty of one count of using a restricted computer without consent – where the respondent did engage with the disciplinary proceedings – where there was no dispute as to the facts – whether the Tribunal should make  orders to protect the public and the profession.

Criminal Code 1899 (Qld), s 408E(1)

Health Ombudsman Act 2013 (QLD) s 8, s 103(a), s 104, s 113.

Health Practitioner Regulation National Law 2009 (QLD) s 5.

Briginshaw v Briginshaw and Anor (1938) 60 CLR 336

Medical Board of Australia v Jensz [2011] VCAT 1026

Pharmacy Board of Australia v Thomas [2011] QCAT 637

REPRESENTATION:

 

Applicant:

Director of Proceedings on behalf of the Health Ombudsman

Respondent:

Bamberry Lawyers

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. [1]
    The respondent, Mr Hammond, is a qualified pharmacist and is a registered health practitioner as defined in schedule 1 of the Health Ombudsman Act 2013 (Qld) (the HO Act) and under section 5 of the Health Practitioner Regulation National Law 2009 (Qld) (National Law).  Mr Hammond is a mature man, aged 35 years old. Since qualifying in 2006, he has worked in various capacities as a pharmacist.
  2. [2]
    The subject of this referral of disciplinary proceedings to the tribunal under sections 103(a) and 104 of the HO Act relates to Mr Hammond’s plea of guilty in the Southport Magistrates Court on 9 March 2016 to one count of using a restricted computer without consent, an offence pursuant to section 408E(1) of the Criminal Code 1899 (Qld).
  3. [3]
    Although there are competing submissions, sensibly and to his credit, Mr Hammond does not oppose the orders sought by applicant.  In relation to both the criminal proceedings and these proceedings, he has made appropriate admissions, and, before the magistrate, entered a timely plea of guilty and was fined $700 with no conviction recorded.  He has no other criminal history; although he has had a number of notifications, resulting on one occasion prior to the commission of the offence, with a caution from the Pharmacist Board of Queensland (The Board) which is relevant to sanction only and to which I will later refer.

The Relevant Conduct

  1. [4]
    The relevant conduct is succinctly summarised below, and is admitted by Mr Hammond:
    1. (a)
      The respondent was contracted as a Compounding Pharmacist at Priceline Pacific Fair (Priceline).  At approximately 8.23 pm on 26 February 2015, two months after his contract at Priceline had ended, and after he had started his competitor company Oz Compounding, the respondent used his remote access to the Priceline computer network (the network) via a computer program called TeamViewer, and accessed the network when he was no longer authorised to do so.
    2. (b)
      During his access to the network, the respondent twice attempted to take a screenshot of an index of the contents of a folder.
    3. (c)
      The access was terminated by another Priceline employee, approximately 21 minutes after the respondent first accessed the network.
    4. (d)
      The respondent was convicted of one charge of use of a restricted computer without consent and was fined $700, with no conviction recorded.
  2. [5]
    There is no issue that the applicant bears the onus of proof, which is on the balance of probabilities, as discussed by the High Court in Briginshaw v Briginshaw and Anor (1938) 60 CLR 336 - 361.  These proceedings are protective in nature and not punitive. As section 4(1) of the HO Act recognises in relation to the conduct of health practitioners, the health and safety of the public is paramount.  In accordance with a long line of common law jurisprudence, section 5(a) (relevantly) of the National Law defines “professional misconduct” to include:
    1. (a)
      Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered practitioner of an equivalent level of training or experience;…
  3. [6]
    Mr Hammond, as I have noted, is a mature man and has been a qualified pharmacist since 2006.  He holds both undergraduate and postgraduate university qualifications in pharmaceutical science.  I agree with the applicant that his conduct in accessing the network of the former pharmacy for which he worked is serious for these reasons:
    1. (a)
      He was well aware that once his contract was terminated, he was not permitted to access the network;
    2. (b)
      The conduct occurred two months after he left his previous employment, and was at night, and over 21 minutes, during which time he attempted unsuccessfully to take screenshots of information that he was viewing;
    3. (c)
      The conduct occurred in circumstances in which the completion of his contract was acrimonious, and he had set up a business in competition with the previous employer; and
    4. (d)
      His actions constituted a criminal offence to which he pleaded guilty.
  4. [7]
    In my opinion, Mr Hammond’s conduct can be properly characterised as unlawfully attempting to obtain a commercial advantage by accessing the intellectual property of another pharmacist without consent and in the circumstances set out above.  It has to be noted that the previous employer had taken no steps to terminate his peer to peer rights once his employment had terminated two months prior to the commission of the offence.  The offence under section 408E(1) does not contain an element of intention to defraud, so I do not accept the applicant’s argument that the conduct was dishonest.  It certainly constituted a breach of trust and a breach of commercial confidence and it is the context in which that occurred that places the conduct within the definition of “professional misconduct” as defined by section 5(a).
  5. [8]
    In any event, Mr Hammond has not attempted to persuade the tribunal that his conduct should not be so defined.  I’m therefore satisfied to the relevant standard that Mr Hammond, on 26 February 2015, as pleaded, behaved in a way that constitutes professional misconduct.

Sanction

  1. [9]
    I referred earlier to Mr Hammond’s notification history.  It is set out as follows:
    1. (a)
      On 15 February 2008, a complaint was made to the Board in relation to the practitioner’s employer in relation to a prescription dispensed by the practitioner, namely Avapro, 300 mg, instead of the correct quantity of prescription, which was 75 mg.  No action was taken in relation to the complaint.
    2. (b)
      On 17 June 2013, a complaint was made by the Australian Health Practitioner Regulation Agency (AHPRA) in relation to the practitioner supplying Nurophen+ medications online without undertaking the appropriate pre-purchase assessment of the purchaser.  An investigation was conducted which resulted in the Board cautioning the practitioner.
    3. (c)
      On 24 November 2014, a complaint was made to AHPRA by the owner of Broadbeach Amcal in relation to the practitioner breaching client confidentiality and privacy by accessing his previous employer’s customer records, and writing letters using the list to solicit business for his benefit and that of the new pharmacy he was working for, namely Oz Compounding trading as Priceline Pharmacy Pacific Far.  The Board decided to take no further action in relation to the complaint on the basis that the complaint appeared to be of a commercial nature and did not demonstrate a risk to the health and safety of the public. 
    4. (d)
      On 7 December 2015 (after the commission of the offence) AHPRA was advised that the practitioner had been charged with a criminal offence which is the subject of this complaint.
    5. (e)
      On 17 May 2016, following an order by AHPRA, a notification was raised by the AHPRA Sydney office as the practitioner failed to meet his professional indemnity insurance requirements, and further that he had failed to correctly declare on his application for renewal of registration that he had met all of the registration requirements of the Board, which includes the holding of professional indemnity insurance.  The Board also took into account that the practitioner had failed to comply with section 130 of the National Law in that he failed to provide the Board with written notice of a relevant event within seven days, namely that he had been charged with an offence punishable by 12 months of imprisonment or more; and that he had been convicted of an offence punishable by imprisonment.  The Board cautioned the practitioner (as noted, this was after he had been dealt with in a Magistrates Court).
  2. [10]
    Although, as his solicitor notes, Mr Hammond has only been cautioned twice and the one in May 2016, to which I’ve just referred, his history is relevant to that as it indicates a practitioner who has a poor understanding of his ethical obligations as a professional pharmacist.  As the applicant fairly observes, the conduct the subject of the adverse finding occurred more than four years ago.  Apart from the matters referred to earlier relating to the May 2016 notification by AHPRA, there is no evidence of any further misconduct.
  3. [11]
    Although Pharmacy Board of Australia v Thomas [2011] QCAT 637 is a more serious case, nevertheless the emphasis on public confidence in the profession as a relevant factor in formulating an appropriate sanction is apposite in this case.
  4. [12]
    The applicant has referred to the principles set out in Medical Board of Australia v Jensz [2011] VCAT 1026.  Here, there is no suggestion of risk to the health or safety of the public; however, predominantly the principle that comes into play from that case, is that orders by way of sanction are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession, in the sense of maintaining the stature and integrity of the profession in the eyes of the public.
  5. [13]
    Mr Hammond’s timely plea of guilty to the criminal offence and his approach to the disciplinary proceedings are also relevant to the sanction issue.  His history, and now a positive finding of professional misconduct will hopefully act as a specific deterrent to him in his future practice.  His consent to educational orders focusing on ethical decision making is also relevant.  Hopefully he has growing insight into the high ethical and professional standards that are expected of a pharmacist. 

Orders

  1. [14]
    The orders of the tribunal are as follows:
  1. The respondent has behaved in a way that constitutes professional misconduct; and
  2. An order in relation to sanction that the respondent is reprimanded under section 107(3)(a) of the Health Ombudsman Act 2013 (Qld);
  3. The imposition of conditions pursuant to section 107(3)(b) of the Health Ombudsman Act 2013 (Qld) in the following terms:
  1. The respondent must complete an accredited course on ethical decision making within six months of the tribunal’s decision. The course must be nominated by the respondent and approved by the Board. At the completion of the course, the respondent must submit to the Board documentary evidence certifying his completion of it.
  2. The respondent is to be responsible for paying all costs associated with compliance with these conditions.
  3. No order as to costs.
Close

Editorial Notes

  • Published Case Name:

    Health Ombudsman v Hammond

  • Shortened Case Name:

    Health Ombudsman v Hammond

  • MNC:

    [2019] QCAT 402

  • Court:

    QCAT

  • Judge(s):

    Judicial Member Robertson

  • Date:

    25 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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