Health Ombudsman v Saurels[2021] QCAT 264

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a referral by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (“the Act”) s 103(1)(a), s 104.  In accordance with the Act s 126, I have been assisted by assessors Ms J Feeney, Mr A Petrie and Ms M Ridley. 
2. [2]
   The respondent was at the relevant time a registered health practitioner, being a pharmacist.  The applicant alleges that the respondent behaved in a way which constituted professional misconduct, in that he obtained a sum of money from the Commonwealth dishonestly by lodging false claims for payment under the Pharmaceutical Benefits Scheme. 
3. [3]
   In this matter the applicant has put before the Tribunal a quantity of material, and provided an outline of submissions to the Tribunal.  The respondent has not provided any material to the Tribunal, but has made submissions in writing to the Tribunal, and appeared and made submissions by videolink during the hearing.  The respondent did not contest the basis of the referral, but made submissions about the appropriate sanction. 

Background

4. [4]
   There is no statement of agreed facts, but the following facts emerge from the material placed before the Tribunal by the applicant.  The respondent was born in 1959 and was first registered as a pharmacist in 1981.  At the relevant time he was operating a pharmacy business he owned in a Brisbane shopping centre.  He was approved to supply pharmaceutical benefits pursuant to the National Health Act 1953 (Cth).  Ordinarily that is done by dispensing to a customer who presents the appropriate prescription medication at a significantly reduced cost.  The balance can then be claimed by the pharmacist from the Health Department.  In practice a large number of claims are made, and are certified and finalised by the approved pharmacist at regular intervals.  The system is arranged so that the payments are made promptly. 
5. [5]
   There are medications which are not dispensed at ordinary pharmacies, because of their high cost.  In 2016 a customer presented a prescription for such a drug at the respondent’s pharmacy, but it was not dispensed, the customer being told that it could be supplied only by the pharmacy of a public hospital, as was the case.  However, the respondent kept a copy of the prescription. 
6. [6]
   Between 1 August and 30 November 2016 the respondent made six claims for payment for the supply of that medication to a named person.  The names of the customer and the prescribing doctor were changed from those on the copy of the  prescription when the claims were made, but other information from it was used, which enabled the department to detect the incorrect supply.  The medication concerned was a very expensive one, and each claim resulted in a payment to the respondent of $22,176.25, except for the last, when the payment was $22,075.39.  No such medication had been dispensed to the named person, and the claims were made dishonestly. 
7. [7]
   The explanation for the behaviour was that the respondent at the time was suffering from serious financial problems, and the money was used to keep his business afloat until he could sell it, which occurred a few months after the last such claim was made.  The respondent subsequently worked as an employed pharmacist.    In 2019 the claims he had made were investigated, and on 10 December 2019 he was charged with six counts of obtaining a financial advantage by deception.^[1]  He pleaded guilty to the six counts at the earliest opportunity, at committal, on 17 February 2020.  On 21 October 2020, his lawyers advised the Australian Health Practitioner Regulation Agency (“AHPRA”) of a relevant event, and the matter was referred to the applicant. 
8. [8]
   On 13 November 2020 the respondent appeared in the District Court at Southport, and was sentenced to two years imprisonment on each charge, the sentences to be served concurrently, except for one which was only partly concurrent, so that the overall sentence was three years.  The Court made a recognisance release order after the respondent had served ten months, so the respondent is expected to be released from custody on 12 September 2021.  He will then be subject to a bond to be of good behaviour for three years.  The respondent has made full restitution to the Health Department for the money he obtained.^[2]  For that purpose he mortgaged a house owned jointed with his wife.  He remains responsible for a large mortgage debt. 
9. [9]
   The remarks of the sentencing judge reveal that he took that into account as a mitigating factor, along with the absence of any other criminal history or subsequent offending, the respondent’s remorse, and that he had been otherwise a good, indeed highly respected and regarded, member of the community.  The respondent had always expected that at some point he would be caught.  The judge did not consider that further personal deterrence was required. 
10. [10]
    The registration of the respondent as a pharmacist was not renewed by AHPRA after it last fell due for renewal, and since 10 June 2021 he has not been registered.  He has not practised as a pharmacist since being sentenced on 13 November 2020.  The Tribunal was told at the hearing that AHPRA had initially refrained from renewing the registration pending the outcome of this proceeding, and later decided that the respondent was not a fit and proper person to be registered, because of his imprisonment, and on that basis refused to renew his registration.  The referral in this matter was filed in the Tribunal on 26 February 2021. 

Professional misconduct

11. [11]
    The definition of “professional misconduct” in the National Law^[3] is 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. 

12. [12]
    The respondent did not contest the proposition that his conduct amounted to professional misconduct within that definition.  It is nevertheless a matter on which the Tribunal must be satisfied.  The matter has been particularised as his having been convicted of the criminal offences, and that conduct falls within an express provision of the definition of “unprofessional conduct” for the purposes of the National Law, as the nature of the offences may affect the suitability of the respondent to continue to practise the profession.  As pointed out in the submissions for the applicant, the conduct involved in the offences breached several provisions of the Code of Conduct for Pharmacists, relevant under the National Law s 41.
13. [13]
    The applicant referred the Tribunal to two cases, one involving similar, but less productive, fraud on the Pharmaceutical Benefits Scheme: Pharmacy Board of Australia v Hopkinson [2018] VCAT 982.  The amount involved was only $22,418.99, but the conduct involved 71 false claims over 15 months, and only stopped when the fraud was discovered.  It was regarded as professional misconduct.  The other case was Nursing and Midwifery Board of Australia v Williams [2013] SAHPT 1, and involved a nurse who had been convicted of fraud on Centrelink in the amount of about $10,000, but who also had other instances of dishonesty relating to her nursing.  The overall conduct was found to be professional misconduct. 
14. [14]
    In the circumstances, the Tribunal is satisfied that the conduct particularised was substantially below the standard reasonably expected of a registered pharmacist, of an equivalent level of training or experience.  It was a serious example of conviction of offences of dishonesty, warranting a significant term of imprisonment, involving actual custody.  Such a finding is consistent with the outcome in other matters.

Sanction

15. [15]
    In imposing a sanction, the health and safety of the public are paramount.^[4]  Disciplinary proceedings are protective, not punitive in nature.^[5]  Relevant considerations include, in general, both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[6]  Insight and remorse on the part of the respondent are also relevant.^[7]  What matters is the fitness to practice of the respondent at the time of the hearing.^[8]  A list of factors which may, in a particular case, be relevant was given by the State Administrative Tribunal of Western Australia in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55]. 
16. [16]
    The conduct involved six separate dishonest acts over a period of about four months, by which the respondent obtained a substantial sum of money.  He took a copy of a genuine prescription which he did not dispense, which involved its misuse, and abused his position as an approved pharmacist under the Pharmaceutical Benefits Scheme, which involved a breach of trust.  The conduct directly involved his ownership of the pharmacy business, although not his actions as a working pharmacist.  
17. [17]
    On the other hand, the fraud was unsophisticated, and doomed to be discovered at some point.  It occurred in the context of considerable financial pressure, after his landlord had threatened to terminate his lease for non-payment of rent, and his bank had threatened to sell his home because he was not servicing his loans.  His business had been marginally viable for about twenty years, but the landlord then, under cover of a refurbishment, made changes which financially disadvantaged him, and left him with growing debts be could not service.  He apparently became another victim of a rapacious shopping centre landlord. 
18. [18]
    The respondent desisted from the criminal conduct voluntarily, before it was discovered or investigated, apparently when the possibility of selling the business emerged.  All of the proceeds of the sale of the business, and of the subsequent sale of his family home, went towards the payment of debts, and in July 2017 he entered an arrangement under Part X of the Bankruptcy Act 1966 (Cth).  His marriage has broken down, although a divorce has not yet gone through.  Until imprisoned he was working as an employed pharmacist, helping to support two of his children and service a large mortgage debt. 
19. [19]
    When charged, he pleaded guilty at the earliest opportunity, and has made full restitution.  There is good evidence of remorse, and the applicant accepts that the respondent has insight into his wrongful conduct.  He otherwise has no criminal history, and no other inappropriate professional conduct on his part was relied on in submissions.  He practised satisfactorily in an employed position after selling his business, and produced a positive reference from his employer.^[9] 
20. [20]
    The Tribunal accepts the view of the sentencing judge, that personal deterrence is not a consideration.^[10]  Nevertheless, the applicant stressed the importance of general deterrence and the maintenance of professional standards and public confidence, and they are important factors. 
21. [21]
    The applicant referred the Tribunal, on sanction, to the decision in Hopkinson (supra) where the respondent, who had not been imprisoned for the offending, was reprimanded and her registration was suspended for six months, and then to be subject to monitoring conditions.  In Medical Board of Australia v Phan [2018] VCAT 1324 a doctor had engaged in extensive Medicare fraud, involving the creation of fabricated medical records and over 12,000 fraudulent claims for services never rendered, which netted over $800,000, stopping only when police investigated.  He was given a head sentence of four years, and had not renewed his registration.  A preclusion period of six years from the date of the order was imposed.  That was clearly a much worse case. 
22. [22]
    Medicare fraud on a much smaller scale was committed by a psychologist in Health Ombudsman v Kong [2020] QCAT 281.  A little over $5,000 was obtained over two years, and on conviction he was sentenced to three months imprisonment, suspended immediately.  He failed to notify the Board as required under the National Law s 130.  He was reprimanded, and conditions were imposed on his registration, but it was not suspended.  The Tribunal took into account that he had pleaded guilty, cooperated with the disciplinary proceedings, and performed a valuable service for the Chinese community.  It referred to the decision in Psychology Board of Australia v Nguyen [2011] VCAT 2437, where a psychologist had defrauded two statutory agencies of over $64,000 over more than three years.  On conviction she was subject to a community-based order.  She had health issues at the time, which she had since addressed, and provided a valuable service to the Vietnamese community in Victoria.  Her registration was suspended for three months, which suspension was itself stayed for one month, she was reprimanded, and conditions for supervision and education were imposed. 
23. [23]
    The applicant sought that the respondent be reprimanded, and, initially, that his registration be suspended for twelve months.  Now that the respondent is no longer registered, it is not possible to suspend his registration, and the applicant sought that he be disqualified from applying for registration as a pharmacist for a period of twelve months.  The respondent submitted that there was no need for personal deterrence, that the terms of imprisonment he had served would be significant as general deterrence, and he was keen to return to work, so that he could resume helping to support his sons, and paying off his mortgage debt.  He had been a pharmacist all his life, and at sixty-one he was unable to do anything else except unskilled work.  His former employer would have him back, and he would be able to contribute to the community by continuing to work in that way.  He did not oppose a restriction on his having a financial interest in a pharmacy business, or a reprimand.
24. [24]
    The matter is complicated by the decision of AHPRA to deregister the respondent, because the Tribunal is left in a state of uncertainty as to what this will mean for the respondent in the future.  The decision to refuse to renew his registration was said to be for a reason which will cease to apply when he is released from prison, but it is not clear that that will mean that an application for registration will be accepted.  At best for him, it can be expected that it will take some time for it to be considered by AHPRA, and he will not be registered soon after he applies.  There is the possibility that he will be registered subject to conditions, or even not re-registered at all. 
25. [25]
    There is also the consideration that the effective suspension of his registration by AHPRA since December 2020, and his deregistration in June this year, mean that he has already in a sense been subject to some sanction as a consequence of his conviction, even though in a practical sense he was unable to practise as a pharmacist while imprisoned anyway.  It is unsatisfactory for a health practitioner to be in effect subjected to two different disciplinary sanctions for the same conduct, one imposed by AHPRA and one by the Tribunal.  I note that the applicant did not seek deregistration of the respondent, and the Tribunal would not, in the circumstances of this case, regard the respondent as not a fit and proper person to be registered as a pharmacist because of the offending. 
26. [26]
    The respondent has not practised as a pharmacist since he was imprisoned, and his registration was in effect first suspended, and more recently cancelled.  This was not  a case of his voluntarily withdrawing from the practice of his profession, but I consider that this is something properly taken into account.  As I said, it is uncertain when, or indeed if, he will be allowed to register again.  In those circumstances, I do not consider that a period of disqualification of twelve months is appropriate in this case.  In my view the fact that the respondent will by the time he is released have served ten months imprisonment is relevant to general deterrence in relation to his disciplinary proceedings, and would be likely in itself to be a significant deterrent to other health practitioners contemplating similar conduct.  In none of the cases to which the Tribunal was referred except Phan was any actual imprisonment served by the practitioner. 
27. [27]
    The respondent presents as a good functional pharmacist, and I understand that there is now some shortage of pharmacists.  No doubt that is greater in provincial areas, such as where the respondent was working before his sentencing.  He has in addition the ability to administer vaccinations, which is of current relevance.   In Kong and Nguyen the Tribunal took into account the value of the practitioner to the particular community served, and I consider that something like that is relevant here too.  The offending occurred in the context of his being trapped in a failing business, and was prompted by need rather than greed, as the sentencing judge recognised.  In practical terms it was a number of his creditors who benefitted from it. 
28. [28]
    When he applies for registration the decision will be that of AHPRA rather than the Tribunal, but no doubt it will take time to consider it, and he will be away from the profession while it does so.  I expect he will be away from the profession for at least twelve months overall, possibly longer.  I consider that he should be able to regain registration, but would recommend that consideration be given by AHPRA to the imposition of a condition that, at least for a time, the respondent not have a pecuniary interest in a pharmacy business. 
29. [29]
    In all the circumstances therefore I do not consider that the health and safety of the public, and the relevant considerations overall, make it appropriate in this case to impose any preclusion period on the respondent before he can apply for registration. A reprimand is itself significant, and appropriate.  I am comforted by the support of the assessors in this conclusion.  The decision of the Tribunal in this matter is:

1. The Tribunal decides that the conduct of the respondent the subject of the referral amounted to professional misconduct. 

2. The Tribunal reprimands the respondent.

3. The parties are to pay their own costs of the referral.