Health Ombudsman v Holland[2021] QCAT 203

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Julie Holland (respondent), pursuant to sections 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act), by the Director of Proceedings on behalf of the Health Ombudsman (applicant). The applicant alleges, in the referral filed 19 December 2019, that the respondent has behaved in a way that constitutes professional misconduct and seeks orders for sanction. The respondent admits that she engaged in the conduct in question. The parties have jointly filed and rely upon a Statement of Agreed Facts, and there are no factual issues in dispute. The parties also agree as to the characterisation of the conduct and appropriate orders by way of sanction.

Background

2. [2]
   The respondent is 38 years old and was aged 33 and 34 years old at the time of the conduct.
3. [3]
   The respondent was first registered as a pharmacist on 6 December 2007 and, at all relevant times, held general registration as a pharmacist. The respondent is currently registered and practising without restrictions on her registration.
4. [4]
   The respondent was employed as a pharmacist at Tewantin Pharmacy from December 2014 until 26 May 2017, when her employment was terminated due to the conduct the subject of the referral.
5. [5]
   Prior to the conduct the subject of these proceedings, the respondent had no disciplinary history.

Conduct

6. [6]
   The conduct the subject of the referral occurred between 19 August 2015 and 19 May 2017 while the respondent was practising as a pharmacist at Tewantin Pharmacy. The applicant alleges, and the respondent accepts, the following conduct:

   1. (a)
      Allegation 1 – On eight occasions during this period, the respondent provided Schedule 4 restricted drugs to herself without a prescription.^[1]
   2. (b)
      Allegation 2 – On six occasions during this period, the respondent provided Schedule 4 restricted drugs to a close relative without a prescription.^[2]
   3. (c)
      Allegation 3 – On four occasions during this period, the respondent provided Schedule 4 restricted drugs to her friend, Person C, without a prescription.^[3]
   4. (d)
      Allegation 4 – On eighteen occasions during this period, the respondent made a false entry in the pharmacy’s electronic record of the Schedule 4 restricted drugs dispensed at the pharmacy.
   5. (e)
      Allegation 5 – On 28 April 2017, the respondent took from the Tewantin Pharmacy a box of Circadin (a Schedule 4 restricted drug) containing thirty (30) tablets, without paying for it.

Characterisation of the Conduct

7. [7]
   Both parties submit that that the respondent’s conduct should be characterised as professional misconduct.

8. [8]
   Section 5 of the Health Practitioner Regulation National Law (Queensland) (National Law) defines “professional misconduct” as follows:

professional misconduct, of a registered health practitioner, includes—

1. (a)
   unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
2. (b)
   more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
3. (c)
   conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

9. [9]
   The requirement that a pharmacist ensure there is a valid prescription is a central obligation peculiar to the profession of pharmacy. The process of prescription and provision of restricted drugs is governed by a highly detailed set of regulations. The respondent’s conduct was contrary to those regulations and her professional and ethical responsibilities under applicable codes of conduct and ethics.^[4] She has deliberately and repeatedly disregarded one of the central obligations of her profession and her conduct is serious. Pharmacists should not provide Schedule 4 restricted drugs at their own discretion.
10. [10]
    Both parties refer to the case of Health Ombudsman v Zuderwyk^[5], in which a pharmacist provided Schedule 4 restricted drugs to two separate family members and himself on 14 separate occasions. The drugs include antibiotics, anti-viral medication and topical medicines. In that case, the pharmacist’s conduct was characterised at the lower end of professional misconduct but nonetheless as professional misconduct.
11. [11]
    Although the majority of drugs in question were not addictive or prone to abuse,^[6] providing medication without a prescription strikes at the heart of the central obligation of pharmacists.
12. [12]
    Creating false records is serious professional misconduct because, as noted in Pharmacy Board of Australia v Kent,^[7] the record-keeping requirements are not “mere business records”.
13. [13]
    For health professionals, stealing or misappropriating any medication from their place of employment is a serious act of misconduct, even in the case where the medication stolen is relatively harmless.^[8] It is a betrayal of the trust of employers, professional colleagues and the public.
14. [14]
    Both parties submit, and the Tribunal readily accepts, that the totality of the respondent’s conduct should be characterised as “professional misconduct” as defined in limb (b) of the definition of that term in section 5 of the National Law.
15. [15]
    Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

16. [16]
    The purpose of sanction is to protect the public, not punish the practitioner. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia,^[9] the imposition of sanction may serve one or all of the following purposes:

    1. (a)
       preventing practitioners who are unfit to practise from practising;
    2. (b)
       securing maintenance of professional standards;
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
    4. (d)
       bringing home to the practitioner the seriousness of their conduct;
    5. (e)
       deterring the practitioner from any future departures from appropriate standards;
    6. (f)
       deterring other members of the profession that might be minded to act in a similar way; and
    7. (g)
       imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.
17. [17]
    The respondent’s conduct was deliberate^[10] and took place over a period of approximately twenty months. Through laziness or poor attitude, the respondent deliberately disregarded one of the core responsibilities of pharmacists in favour of convenience.
18. [18]
    Mitigating factors include the respondent’s co-operation during the investigation process and the Tribunal proceedings. She has expressed that she is deeply ashamed of her conduct and has learned the importance of reflecting on this period of her life and has taken steps to alleviate the personal stressors in her life that may have impacted on her judgment at the time of the conduct.
19. [19]
    The respondent has taken significant steps towards alleviating the personal stressors that contributed towards her misconduct. She has engaged in professional education and developed an education plan to further her knowledge base, as well as entered into a structured and regular mentoring arrangement with an experienced pharmacist.
20. [20]
    It is clear that the respondent is motivated to continue on a positive path in her career as a pharmacist.
21. [21]
    Both parties agree that the respondent ought to be reprimanded. The respondent’s misconduct does deserve denunciation by the Tribunal.
22. [22]
    A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.^[11] It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the Register until such time as the Board considers it appropriate to remove it.^[12]
23. [23]
    Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
24. [24]
    The applicant submits, and the respondent agrees^[13], that the respondent’s registration should be subject to conditions requiring mentoring and education directed towards the nature of the respondent’s professional misconduct.
25. [25]
    The Tribunal ought not readily depart from a proposed sanction agreed between the parties unless it falls outside a permissible range of sanction.^[14] The Tribunal accepts that the proposed conditions are appropriate.
26. [26]
    Pursuant to section 107(3)(b) of the HO Act, the Tribunal imposes the following conditions on the respondent’s registration:

    1. (a)
       The registrant must undergo a period of mentoring for not less than 2 hours per month for 12 months.
    2. (b)
       The mentoring must be face to face or on the telephone and focus on ethical dispensing and decision-making.
    3. (c)
       The registrant must nominate a mentor for approval by the Pharmacy Board of Australia, who must be a pharmacist practising in an accredited pharmacy and senior to the practitioner in age and experience. The mentor must provide a report in writing to the Board every 3 months and on completion of the mentoring period.
    4. (d)
       The registrant must complete accredited courses on appropriate dispensing of medicines and ethical decision-making within 12 months. The course must be nominated by the respondent and approved by the Board. At the completion of the course the registrant must submit to the Board documentary evidence certifying her completion of it.
    5. (e)
       The registrant is to be responsible for paying all costs associated with compliance with these conditions.
27. [27]
    Pursuant to section 109(2) of the HO Act, the Tribunal decides that part 7, division 11, subdivision 2 of the National Law applies to the conditions imposed on the respondent’s registration.
28. [28]
    Pursuant to section 109(3) of the HO Act, the Tribunal decides that the review period for the conditions is 12 months from the date of the Tribunal’s orders.

Costs

29. [29]
    The parties agreed that there should be no order for costs and, there being no reason to depart from it, the orders of the Tribunal will reflect the default position pursuant to section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).