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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v FYD  QCAT 168
DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN
Occupational regulation matters
25 June 2020
On the papers
Judicial Member D J McGill SC
Ms K Huxhagen
Ms K Kensell
Mr P Murdoch
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – CONVICTION OF OFENCE – Professional misconduct – stealing medication from employer – falsification of records – sanction – whether non-publication order appropriate
Health Ombudsman Act 2013 s 107
Health Practitioner Regulation National Law (Qld) s 5
Queensland Civil and Administrative Tribunal Act 2009 s 66(1)
Pharmacy Board of Australia v Christie  QCAT 291
Pharmacy Board of Australia v Dougherty  SAHPT 6
Health Ombudsman v DeCelis  QCAT 140
Legal Services Commission v XBV  QCAT 332
J v L & A Services Pty Ltd (No 2)  2 Qd R 10
Health Ombudsman v NLM  QCAT 366
Office of the Health Ombudsman
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
- This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 s 103(1)(a), s 104. In accordance with the Act, I am sitting with assessors Ms Huxhagen, Ms Kensell and Mr Murdoch.
- The respondent was at the relevant time a registered pharmacist, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld). The applicant alleges that the respondent engaged in professional misconduct in that, while registered and employed as a pharmacist, he stole medication from his employer, covering his tracks by falsifying the records of the pharmacy. This occurred between January 2015 and May 2017.
- The parties have provided the Tribunal with an agreed statement of facts. The respondent, who has not been legally represented in these proceedings, admits the grounds alleged, and that the conduct in question amounts to professional misconduct. The parties have provided written submissions to the Tribunal. The hearing proceeded on the papers, in accordance with the Queensland Civil and Administrative Tribunal Act 2009 s 32.
- The Tribunal accepts the facts set out in the agreed statement of facts, save for one matter which is corrected below. They, and some additional information before the Tribunal, may be summarised as follows: The respondent was born in 1973 and is now 46. He was first registered as a pharmacist in December 2006. He was at the relevant time employed as a pharmacist at two pharmacies in a provincial city. Between 1 January 2015 and 25 May 2017 on a large number of occasions he ordered medications for a pharmacy but did not enter them in the records of the pharmacy, and then stole them. There were almost 30,000 tablets or patches stolen in this way, valued at over $20,000. The medications stolen were generally opiates or amphetamines. He consumed the drugs himself.
- In May 2017, other staff in the pharmacies became suspicious, and conducted an audit. On 22 May 2017 the respondent was suspended, and subsequently lost his employment. In July 2017, during a police investigation, the respondent admitted to stealing the drugs, and making false entries in drug records. He was changed with two offences, pleaded guilty and was sentenced to terms of imprisonment, wholly suspended, which on appeal were reduced to 12 months and 2 months respectively, each wholly suspended for 12 months. He repaid the wholesale value of the drugs taken, and a psychologist’s report indicated that he began to use the drugs to self-medicate for an unspecified depressive condition. No criminal history was alleged.
- In July 2017 the applicant suspended the registration of the respondent. He has not subsequently worked as a pharmacist, although on 23 February 2018 the suspension was revoked by the applicant.
- In his submission to the Tribunal the respondent stated that since this offending was disclosed he has generally been unemployed, apart from some part time work as a research assistant and some volunteer work. He has been receiving drug rehabilitation treatment, and spoke of the severe effect the whole experience has had on him and his family. His submission shows insight and contrition, and suggests good prospects of rehabilitation, as did the psychologist’s report relied on at sentencing. A further report provided for use in this proceeding expressed the opinion that the respondent has made progress, but recommended that the respondent continue to engage in treatment, at least a further 6 sessions, to address his depressive symptoms. With continuing treatment, a supportive environment, mentoring and communication, he would be capable of working as a pharmacist.
- Following a consideration of the matter, the Tribunal sought further submissions from the respondent, including as to his current treatment. The respondent advised that he is continuing to receive treatment, and is continuing to attend a drug clinic at a health service. His current medication is Suboxone 24 mg daily, and Escitalopram 20 mg daily, the latter for depression and anxiety. He said he has been stable on these dosages of these medications for the last couple of years. He is due to see a doctor again in July 2020.
Decision on conduct
- I am conscious of the definition of “professional misconduct” in the National Law s 5. The relevant part is paragraph (c), conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession. This case is an example of dishonesty in carrying out his responsibilities in the pharmacy over a period of over 2 years, which was a significant breach of trust on his part. Although the existence of the psychiatric condition is relevant to the respondent’s conduct, the applicant’s case is based on the dishonesty involved in the respondent’s behaviour.
- It was submitted by the applicant, and not disputed by the respondent, that the relevant behaviour amounted to professional misconduct. There are a number of decisions of the Tribunal in which stealing or dishonestly obtaining medications, particularly drugs of addiction, has been held to amount to professional misconduct: see Health Ombudsman v DeCelis  QCAT 140; Pharmacy Board of Australia v Christie  QCAT 291; Health Ombudsman v Macdonald  QCAT 473. Here, when the conduct extended for a period of over 2 years, the drugs were of a serious nature and they were not paid for, there was significant dishonesty, and it is not difficult to decide that this conduct amounted to professional misconduct.
- In imposing a sanction, the health and safety of the public are paramount. Disciplinary proceedings are protective, not punitive in nature. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence. Insight and remorse on the part of the respondent are also relevant, and are shown here by the respondent. It is apparent that the respondent is keen to return to practice as a pharmacist.
- In the matter of Christie, referred to earlier, a pharmacist had on a number of occasions over several years obtained various controlled, restricted and addictive drugs, including from his employer, by dishonest means, such as creating fictitious transactions. He had a long-standing problem with the misuse of prescription and other drugs. That respondent had already been dealt with in a criminal court, and had allowed his registration to lapse and obtained employment in a different field. He was reprimanded, disqualified from applying for registration for a period of 3 years, on top of 2½ years he had already been out of the profession, and ordered to pay the costs of the Board, fixed at $12,000.
- In Pharmacy Board of Australia v Dougherty  SAHPT 6 the respondent stole 84 tablets of dexamphetamine sulphate the property of his employer over a period of close to 2 years. At the time he had a drug problem, which he had been feeding in part in this way. He was undertaking drug rehabilitation. He was reprimanded and disqualified from applying for registration for a (backdated) period of 2 years.
- I am also aware of the decision of the Tribunal in Health Ombudsman v DeCelis  QCAT 140. The respondent, a pharmacist, obtained cocaine for his own use by ordering it for his employer’s pharmacy, without any legitimate justification, and altering records to cover his tracks. This occurred on a number of occasions over 7 months, and stopped when the respondent disclosed his conduct, quit his job and sought treatment. He did not disclose to the Board when he was charged with offences, but did not renew his registration as a pharmacist, so that he had not been registered for over three years, a factor the Tribunal considered important. A finding of professional misconduct was made, and the respondent was reprimanded.
- The applicant proposes that the respondent be reprimanded, and disqualified from registration for a period of 3 to 5 years from the date on which his employment was suspended, that is, 22 May 2017. The respondent submitted that a reprimand and a disqualification for a period of 3 years would be appropriate.
- One matter that concerns me is that the most recent report from the respondent’s psychologist recommends further treatment and a period of mentoring. As mentioned, the respondent’s treatment is continuing. The applicant has not proposed the imposition of conditions on the respondent’s registration in relation to these matters, no doubt because of the terms of s 107(4) of the Act, and it seems to me that this is a matter which must be handled by AHPRA, who would be in a position to obtain further reports as to the state of the respondent’s mental health. I propose to recommend that AHPRA consider imposing conditions on the respondent’s registration, if he applies for registration soon after the disqualification expires, for him to continue to receive treatment from a psychologist, and for him to be monitored by a pharmacist approved by AHPRA, for such period as AHPRA determines.
- Apart from that, I am concerned that, although the respondent has been stable for some time, he has not yet been weaned off Suboxone, and there is no evidence that this is imminent. In all the circumstances, I consider that a period of disqualification, running from the time when the respondent’s employment was suspended, in excess of three years is required in this case, for the proper protection of the public. The appropriate sanction therefore is a reprimand, and an order that the respondent be disqualified until four years from when his employment was suspended, which would run until 22 May 2021.
- The respondent has sought a non-publication order. He relied on the most recent report from the treating psychologist which expressed the opinion that publication of his name in the decision of the Tribunal would negatively affect his mental well-being. The applicant does not oppose that course, and has referred to s 66 of the QCAT Act. That section authorizes a non-publication order if the Tribunal considers it necessary having regard to five specific matters, one of which is “(b) to avoid endangering the physical or mental health or safety of a person”. There is therefore some evidence to support the proposition that this requirement is satisfied.
- I appreciate that the starting point is that the Tribunal operates in public, and the power to conduct all or part of a hearing in private should be strictly regulated: see Legal Services Commission v XBV  QCAT 332 at , where the Honourable P Lyons QC pointed out that the Tribunal had a broader power to constrain the open court principle than is available to courts generally. In that case there was evidence that the respondent had been receiving treatment from a psychiatrist and a psychologist for a major depressive disorder, and there was a risk of suicide. A non-publication order was made, but under another Act, as it concerned a legal practitioner. Reference was made to the decision of J v L & A Services Pty Ltd (No 2)  2 Qd R 10, where the open court principle was discussed. Under that principle, as applied in courts, it was said at p 45 that “information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other collateral disadvantage.” In the present case, on the evidence the requirement of s 66(2)(b) is satisfied, and that provides the ground for a non-publication order.
- I am aware of cases where applications for non-publication orders have been refused, but in Health Ombudsman v NLM  QCAT 366 Sheridan DCJ made a non-publication order in a matter which involved an impairment of the practitioner which was closely bound up with the relevant misconduct, although it was not an impairment matter, where there are statutory provisions for confidentiality. Her Honour referred to those provisions, and said at  that they indicated that the legislature attaches importance to the need for privacy in matters relating to impairment, because there are good social policy reasons which justify a restriction on openness in the administration of justice. Accordingly it was held to be necessary in the interest of justice to make a non-publication order.
- The situation is similar in this case. There is evidence that at the relevant time the respondent had mental health problems, which were related to the offending conduct. I consider that the reasoning in NLM provides some support for a non-publication order. In all the circumstances, I am prepared to make a non-publication order.
- Accordingly the decision of the Tribunal is as follows:
- The Tribunal decides that, in respect of the matters alleged by the applicant, the respondent behaved in a way which constituted professional misconduct.
- The Tribunal reprimands the respondent.
- The Tribunal disqualifies the respondent from registration as a pharmacist until 23 May 2021.
- The parties bear their own costs of this proceeding.
- Until further order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication is prohibited, to the extent that it would identify the respondent, or enable the respondent to be identified, of:
- (i)the contents of a document or other thing produced to the Tribunal;
- (ii)evidence given before the Tribunal;
- (iii)any order made or reasons given by the Tribunal.
- In addition, the Tribunal recommends that AHPRA have regard to the reports of the respondent’s psychologist, and consider imposing conditions on the respondent’s registration, if he applies for registration soon after the disqualification period expires, for him to continue to receive treatment from a psychologist, and for him to be monitored by a pharmacist approved by AHPRA, for such period as AHPRA determines.
 Health Ombudsman Act 2013 s 126. For their function, see s 127.
- Published Case Name:
Health Ombudsman v FYD
- Shortened Case Name:
Health Ombudsman v FYD
 QCAT 168
Judicial Member D J McGill SC
25 Jun 2020