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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Healy  QCAT 314
taryn lee rebecca healy
Occupational regulation matters
2 September 2020
On the papers
Judicial Member Robertson
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – self-medicating with prescription drugs – respondent self-dispensing drugs – remorse – sanction
Health Ombudsman Act 2013 (Qld) s 4, s 5, s 107
Craig v Medical Board of South Australia (2001) SASR 545
Health Ombudsman v Antley  QCAT 472
Health Ombudsman v Hardy  QCAT 416
Health Ombudsman v Passmore  QCAT 92
Medical Board of Australia v Dolar  QCAT 271
Pharmacy Board of Australia v Christie  QCAT 291
Director of Proceedings on behalf of the Health Ombudsman
Armfield O'Brien Law
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
- The Tribunal is dealing with an amended referral filed by the applicant director on 11 March 2020 pursuant to sections 103(1) and 104 of the Health Ombudsman Act 2013 (the Act).
- The respondent is a qualified but presently unregistered pharmacist. She was 27 years of age when she dispensed to herself without a prescription on two occasions (11 March 2016 – Duromine; and 14 March 2016 – Diazepam) both of which are Schedule 4 drugs.
- She holds degrees in Science and Pharmacy from the University of Queensland. She was first registered with the Pharmacy Board of Australia (the Board) on 16th January 2014.
- On 14 June 2017, she surrendered her registration and has not worked as a pharmacist since.
- The parties have filed an agreed statement of facts and a joint submission as to the proper characterization of the conduct and sanction. It is only in exceptional circumstances that the Tribunal should depart from the agreed position of the parties e.g. where the agreed sanction for the admitted conduct is outside the proper range of sanctions imposed by the Tribunal in comparable cases and/or the characterization of the conduct as agreed is again inconsistent with previous cases involving similar facts.
- The respondent worked at either the Patrick Road or Ferny Hills Pharmacy (the pharmacies) both before and after her registration which included the two occasions of dispensing without a prescription the subject of the amended referral. She worked as a pharmacy assistant at the pharmacies from December 2011 to 2013 and then as an intern between 2014 and 2015 after she was registered with the Board. From June 2015 until April 2016 she worked as a pharmacist and then pharmacy manager at the Ferny Hills Pharmacy.
- On 21 April 2016, she was made redundant after a change of ownership. The notification of the allegations the subject of the amended referral was made in May 2016. The respondent worked as a pharmacist in other pharmacies between May 2016 and January 2017. She is now living in Adelaide and working in another capacity.
- On 27 May 2016 the Health Ombudsman referred the health component of the notification to Ahpra and Dr Sue Splatt consultant psychiatrist provided a report to the regulator dated 9 August 2016.
- The respondent was diagnosed with a prescription drug substance abuse disorder however Dr Splatt did not think her capacity to practice her profession was impaired, but recommended that she be supervised by an experienced colleague. The medical records in the hearing brief (to which Dr Splatt referred briefly) indicates that this young woman was under the care of the same GP Dr Conrad Young from 2010 until 2017 during which time he prescribed various drugs for depression, insomnia, anxiety and migraine. In 2015 and 2016 she was referred by the GP under a mental health plan to a psychologist who refers to the respondent suffering severe stress related to her work. It appears that the previous owners of the pharmacies had separated and that the businesses were being operated from outside Australia. Dr Young also referred the respondent to a consultant psychiatrist Dr Helen Hoey who refers to her insomnia and a “hunch” that she may be on the bi-polar spectrum.
- In a letter to the respondent’s solicitor on 8 June 2016, Dr Hoey described this as “presumptive diagnosis at this stage and certainly not definitive”. She noted that in the three sessions she had with the respondent she could see no evidence of impaired judgment or abnormality of form or stream of thought.
- Since her move to Adelaide, the respondent has shown commendable commitment to dealing with her health issues. She has a regular GP and is seeing both a psychologist and a psychiatrist and is stable from a mental health point of view and capable of working as a pharmacist if she was registered and chose to do so. Reports from her treating psychiatrist and psychologist are strongly supportive of her capacity to work again as a pharmacist. All health care providers involved in her care now are adopting treatment plans to reduce her reliance on psychotropic medication.
Characterisation of the Conduct
- The conduct to which the respondent admits seems to be a product of impaired judgment at a time when she was severely stressed and her GP was incapacitated as a result of an accident. At the time she was taking a number of prescribed medications for her mental health and insomnia, and her work situation relating to her relationship with her manager had deteriorated. She otherwise appears to have been a competent and capable professional. I agree with the parties that the conduct amounts to unprofessional conduct as defined by the National Law.
- The joint submissions refer to a number of decisions of the Tribunal all of which are much more serious than this case and in two criminal charges were proved.
- In this case, the respondent dispensed medications to herself on two occasions within a four-day period. She did this in circumstances in which she intended to dispense the medications to herself on the basis of a “script owing” basis, rather than by deceit or for dishonest reasons. She also made admissions early and has fully co-operated in these proceedings and has been diligent in addressing her health issues which no doubt caused her loss of judgment.
- The parties jointly submit that a caution is the appropriate disciplinary response. In my view, such an outcome would appropriately acknowledge the principles often referred to in the authorities, that general and personal deterrence and the maintenance of professional standards and the need to uphold trust in the profession should be reflected in the Tribunals’ orders.
- The respondent has demonstrated significant insight and remorse as demonstrated by her admissions early and co-operation with the disciplinary process and her commitment to on-going treatment for her health issues.
- The respondent also accepts that her conduct breaches the Board’s Code of Conduct for Pharmacists in that she did not keep proper records in relation to the two acts of dispensing to herself. This is made relevant as evidence of what constitutes appropriate professional conduct or practice by Section 41 of the National Law.
- The imposition of a caution for what is unprofessional conduct at the lower scale of seriousness for a health service provider will serve as a reminder to others in the profession (and to the respondent if she seeks to be registered in the future) to be scrupulous in dealing with Schedule 4 drugs particularly in the maintenance of proper records which is particularly important in considering the health and safety of the public.
- As the joint submission acknowledges, if the respondent does apply to be registered again in the future, she will have to satisfy the Board in terms of recency of practice (now having not practiced for over 3 years) and that she is not impaired and otherwise suitable to be registered again.
 See section 5 and section 107 (2)(b), (3) and (4) of the Act.
 Health Ombudsman v Antley  QCAT 472; Health Ombudsman v Hardy  QCAT 416 and Pharmacy Board of Australia v Christie  QCAT 291.
 Section 4 (1) of the Act.
 Medical Board of Australia v Dolar  QCAT 271 at .
 See generally Craig v Medical Board of South Australia (2001) SASR 545.
 Health Ombudsman v Passmore  QCAT 92 at .
- Published Case Name:
Health Ombudsman v Healy
- Shortened Case Name:
Health Ombudsman v Healy
 QCAT 314
Judicial Member Robertson
02 Sep 2020