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Porteous v Pharmacy Board of Australia[2021] QCAT 286

Porteous v Pharmacy Board of Australia[2021] QCAT 286

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Porteous v Pharmacy Board of Australia [2021] QCAT 286

PARTIES:

REGINA PORTEOUS

(applicant)

v

PHARMACY BOARD OF AUSTRALIA

(respondent)

APPLICATION NO/S:

OCR246-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

27 September 2021

HEARING DATE:

19 – 20 August 2021

HEARD AT:

Brisbane

DECISION OF:

Judicial Member J Robertson

Assisted by:

Mr Kenneth Murphy

Dr Gail Neilson

Miss Hailie Uren

ORDERS:

  1. The immediate action taken by decision of the Board on 13 July 2020 is set aside.
  2. The parties are at liberty to file any submissions as to any matter arising out of these reasons within 14 days of the date of delivery of these reasons.
  3. Any matters to be determined as a result of any submissions filed in accordance with Order 2 shall be determined on the papers.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – APPEALS – where the Board decided to take immediate action suspending the applicant’s registration – where the applicant sought a review of the Board’s decision – whether the applicant presents a serious risk to persons – where the conduct the subject of the immediate action essentially depends on the evidence of one witness, where the Tribunal had before it extensive material that was not before the Board – the limited role of the Tribunal in assessing the nature of relevant conduct and/or performance in a review of a decision to take immediate action – whether the decision of the Board should be set aside

Health Practitioner Regulation National Law (Queensland), s 156, s 158

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33

AMS v Medical Radiation Practice Board of Australia (No. 2) [2019] QCAT 401

Bernadt v Medical Board of Australia [2013] WASCA 259

Farshchi v Chinese Medicine Board of Australia (Review and Regulation) [2018] VCAT 1617

Gupta v Medical Board of Australia [2019] SAHPT 6

Health Ombudsman v Kirk [2019] QCAT 301

Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286

Ord v Nursing and Midwifery Board of Australia (No. 2) [2015] QCAT 102

Peters v Medical Board of Australia [2020] QCAT 169

The Registrant v A Health Profession Board of Australia [2013] QCAT 485

WD v Medical Board of Australia [2013] QCAT 614

APPEARANCES &

REPRESENTATION:

 

Applicant:

A Morris QC, instructed by Australian Law Partners

Respondent:

JR Green, instructed by Minter Ellison

REASONS FOR DECISION

Introduction

  1. [1]
    The applicant Regina Porteous (Ms Porteous) is a registered pharmacist. She has been registered with the Board since 21 July 1987. She is the sole director of Lucaspharm Pty Ltd which owns a pharmacy in Morayfield known as the Morayfield Late Night Chemist (the Pharmacy).
  2. [2]
    On 7 July 2020, Ms Porteous received notice from the Australian Health Practitioner Regulation Agency (AHPRA)[1] of proposed immediate action[2] to suspend her registration and inviting her to respond if she wished to make submissions. Ms Porteous provided two short written responses,[3] which, in effect, stated that the allegations that formed the basis of the proposed immediate action were false, and made by a disgruntled employee or disgruntled employees.
  3. [3]
    On 13 July 2020, AHPRA notified Ms Porteous that the Pharmacy Board of Australia (the Board) had decided to take immediate action effective immediately and suspended her registration. The Board’s decision is based on section 156 of the Health Practitioner Regulation National Law (Queensland) (National Law). In its reasons for decision,[4] the delegate for the Board stated:

On the basis of the evidence before it, the Board reasonably believes that because of (your) conduct and/or performance, (you) pose a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

Conduct and/or performance and serious risk to persons

  1. Based on the information before it, the Board continued to form a reasonable belief that, because of (your) conduct and/or performance (you) pose a serious risk to persons because there are objective circumstances that support a reasonable belief that (you have):

a.  unsafely provided a large volume of medication, including Schedule 8 medication such as Morphine and Schedule 4 drugs of dependence such as Temazepam, to a consumer, when the medication was not prescribed or dispensed for the consumer’s use; and/or

b.  inappropriately discarded scheduled medications in contravention of the regulatory regime.

  1. [4]
    The delegate further stated:[5]
  1. In continuing to form a reasonable belief that, because of (your) conduct and/or performance (you) pose a serious risk to persons, the Board placed weight on the following information:

a.  The notification made by a confidential notifier on 4 June 2020 alleges that in late 2019 (you) had given medications to a consumer (Ms D), including syringes containing Morphine and prescriptions belonging to other consumers which were to be destroyed.  Photographs of the items were provided with the notification.

b.  On 29 June 2020 APHRA staff spoke to Queensland Health’s Public Health Unit.  They advised that they were investigating the matter and had seized the medications that had been given to the consumer. The Public Health Unit had spoken initially to the notifier and consumer, who confirmed the allegations as made in the notification but no statements have yet been prepared.

c.  On 30 June 2020, the public health unit provided a copy of the receipt for the medication seized. That shows the medications include Morphine x 8 syringes and one x ampoule, Haliperidol x 5 syringes and 8 ampoules and 84 x 0.5 mg tablets, Midazolam x 5 syringes and 2 ampoules, Hyoscine Butyl Bromide x 2 syringes and 8 ampoules, Propranolol 78 x 10 mg tablets, Temazepan 1 x 10 mg tablet, Spironolactone 12 x 25 mg tablets, Glycerol Trinitrate pump spray by 200 doses. The medication was mostly dispensed to patient JK.

d.  The written submissions provided by (you) on 10 July 2020 and the further written submission provided on 13 July 2020 as summarised above.

  1. [5]
    At paragraph 10 of the decision notice,[6] the delegate stated:
  1. The risk is heightened in circumstances where (you) also provided a large number of prescriptions to Ms D, representing a significant breach of confidentiality and privacy of the patients for whom those prescriptions were issued and/or dispensed. The Board noted that (you) submitted that destruction of paper prescriptions at the pharmacy is managed by (you) and they are destroyed by shredding or burning under (your) supervision. However, (you) did not provide any objective evidence to support (your) submission or outline (your) process or policy for destruction of prescriptions.  Furthermore, (you) did not provide any explanation of how the prescriptions, issued by (you), came into the possession of Ms D. The Board continued to consider that it is the responsibility of (you) as a pharmacist and proprietor of the pharmacy, to ensure any confidential material is safely destroyed or disposed of.
  1. [6]
    As required by law,[7] the decision notice informed Ms Porteous of her right to appeal the decision, it being a decision to take immediate action by way of suspension of her registration.
  2. [7]
    Mr Morris QC of counsel, who represented Ms Porteous at the hearing, is correct when he points to the use of the word “appeal” in section 158 of the National Law, and in the decision notice, but the application filed by his client on 10 August 2020[8] is correctly stated to be an “application to review a decision” pursuant to section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). As Mr Morris QC conceded, the proceedings before the Tribunal do not have the usual features of an appeal to a superior court (for example, that further or “fresh” evidence can be led as a matter of right) and the purpose of the review “is to produce the correct and preferable decision”, and “the Tribunal must hear and decide (the review) by way of a rehearing on the merits”.[9]
  3. [8]
    Section 156(1)(a) and (b) of the National Law defines that framework in which the Board reached its decision:
  1. (1)
    A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if –
  1. (a)
    the National Board reasonably believes that –
  1. (i)
    because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
  1. (ii)
    it is necessary to take immediate action to protect public health or safety; or
  1. (b)
    the National Board reasonably believes that –
  1. (i)
    the student poses a serious risk to persons because the student –
  1. (A)
    has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or
  1. (B)
    has, or may have, an impairment; or
  1. (C)
    has, or may have, contravened a condition of the student’s registration or an undertaking given by the student to a National Board; and
  1. (ii)
    it is necessary to take immediate action to protect public health or safety.

The correct legal approach

  1. [9]
    In Bernadt v Medical Board of Australia,[10] McLure P held that the first of the above elements is factual in nature, while the second and third are evaluative. A reasonable belief “does not require proof of conduct”, but rather “an inclination of the mind toward ascending to, rather than rejecting, a proposition”.
  2. [10]
    Relevantly, the underling facts giving rise to the relevant “reasonable belief” do not have to be established on the balance of probabilities.[11]
  3. [11]
    In Peters v Medical Board of Australia [2020] QCAT 169, by reference to jurisprudence from this State and interstate, I set out in some detail what I regard as the correct legal approach to be taken when the Tribunal is considering an application to review a decision to take immediate action. In that case, it was a decision of the Board to impose conditions, and the review hearing was undertaken on the papers without oral evidence being called, however the applicable principles are the same.
  4. [12]
    Reviews of section 156 National Law decisions effectively involve a two-limb assessment as discussed in Pearse v Medical Board of Australia [2013] QCAT 392 in which Deputy President Judge Horneman-Wren SC explained:

[40]  Because it is conducting a fresh hearing on the merits the Tribunal must determine whether it holds a reasonable belief that because of Dr Pearse's conduct he poses a serious risk to persons, and that it is necessary to take immediate action in the form of imposing the conditions in the terms now sought by the Board to protect public health and safety. The proper approach to those issues to be taken by the Tribunal has been considered in a number of cases.

  1. [13]
    In WD v Medical Board of Australia [2013] QCAT 614 the Deputy President set out those principles and cases referred to in Pearse above:

[6]  ...Such a review is to be conducted as a full de novo hearing on the material before the Tribunal; not that which was before the Board. It permits consideration of matters which have occurred since the time which the decision of the Board was taken. The purpose of the review is to produce the correct and preferable decision.

[7]  In these proceedings, the Tribunal must determine whether it holds a reasonable belief that because of WD's conduct or health she poses a serious risk to persons, and that it is necessary to take immediate action in the form of the suspension of her registration to protect public health and safety.

[8]  In Pearse v Medical Board of Australia [2013] QCAT 392 at [40]- [43] the Tribunal cited with approval the observations of the South Australian Health Practitioners Tribunal in I v Medical Board of Australia [2011] SAHPT 18, the Supreme Court of New South Wales in Lindsay v NSW Medical Board (2008) NSWSCR 40, and the Western Australia Administrative Tribunal in Liddell v Medical Board of Australia [2012] WASAT 120, as to the proper approach to be taken by the Tribunal in determining the issues which arise in an immediate action matter. That approach may be summarized as follows:

  1. an immediate action order does not entail a detailed enquiry;
  1. it requires action on an urgent basis because of the need to protect public health and safety;
  1. the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;
  1. an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
  1. the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
  1. the material available should be carefully scrutinised in order to determine the weight to be attached to it;
  1. a complaint that is trivial or misconceived on its face will clearly not be given weight;
  1. the nature of the allegations will be highly relevant to the issue of whether the order is justified.
  1. [14]
    In Ord v Nursing and Midwifery Board of Australia (No. 2) [2015] QCAT 102, the Tribunal commented upon the relevance of the urgency of the section 156 decision making process vis a vis the nature of the assessment which must necessarily be made by the Board:

[36]  A review of a decision of a Board to take immediate action is somewhat different to a disciplinary proceeding. Often, as I have already observed, the decision will, quite reasonably, have been taken quickly and on limited material. Such a decision will be in accord with the Board's duty to protect the public. By contrast, a decision to prosecute a disciplinary charge against a practitioner will usually be made after a thorough investigation and with an understanding of the practitioner's response to the allegations and of the available evidence in support of the allegations (and often in defence of them also).

  1. [15]
    The correctness of this approach has been confirmed in Gupta v Medical Board of Australia [2019] SAHPT 6, including that the nature of the allegations themselves may be sufficient on the interim basis to make out the requisite threshold of “serious risk”:

[44]  Section 156(1) establishes a two limbed approach, namely the Board reasonably believes the conduct poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety. The seriousness of the allegations, and the nature of the conduct alleged, are sufficient to underpin a reasonable belief that the appellant poses a serious risk to persons, and in the absence of any explanation or other material which undermines the patient's allegations, it was necessary to take immediate action.

  1. [16]
    The task of the Tribunal, if the first limb is made out, is effectively that explained in Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286:

[47]  The Tribunal must decide, on the material before it, whether it reasonably believes that because of his conduct or performance, Dr Ladhams poses a serious risk to persons, and that it is necessary to take immediate action to protect public health and safety. This requires identification of any serious risk posed and the particular aspects of Dr Ladhams' conduct or performance which caused or cause that risk. It also requires, if relevant risk is identified, identification of the particular action necessary to protect public health and safety.

[48] ... Although not an appeal as such from the Board's decision, this proceeding can be informed by the approach taken by the Board: see Pearse at [48]; Shahinper v Psychology Board of Australia [2013] QCAT 593 at [17].

………..

[74]  I also believe that, given these risks, it is necessary to impose conditions of Dr Ladhams' registration. I do not, however, believe that the conditions presently imposed upon Dr Ladhams, or those now proposed by the Board, are appropriate to manage the identified risks. Any conditions imposed should address the relevant risks specifically, and otherwise be the least onerous possible: see Shahinper v Psychology Board of Australia [2013] QCAT 593 and Azam v Medical Board of Australia [2013] QCAT 611.

  1. [17]
    In AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401, Judge Allen QC considered the meaning of “reasonable belief” in the context of the National Law:[12]

[26]  I am required to determine whether, pursuant to s 78(l)(a)(i) of the National Law, I reasonably believe that the way the practitioner practises the health profession or the practitioner's professional conduct is or may be unsatisfactory. In doing so, I need to have regard to the principle that the health and safety of the public are paramount and that restrictions on the practice of a health profession are to be imposed only as fit as is necessary to ensure health services are provided safely and are of an appropriate quality.

[27]  With respect to the terms of s 178(l)(a) of the National Law, I note that “belief” is the inclination of the mind towards assenting to rather than rejecting s a proposition.

[29]  In Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701, Horneman-Wren SC; DCJ, Deputy President, stated as follows at [20], in the context of immediate action:

I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.

  1. [18]
    The fact that conditions may act in a detrimental manner upon a relevant practitioner's ability to practise do not automatically render them inappropriate. As Deputy President Horneman-Wren SC in The Registrant v A Health Profession Board of Australia [2013] QCAT 485 held:

[9]  It is quite clear from the evidence before the Tribunal on this occasion that the orders have had the practical effect of impacting detrimentally on the Registrant's ability to practise. That detrimental effect goes beyond that which is necessary to protect the public and the profession. It has become punitive.

[11]  The requirement to disclose the conditions to all employees within a practice in which the Registrant works has proven particularly problematic. Once informed, those employees react adversely to the Registrant. There is documentary evidence which supports the Registrant's evidence in that regard. These documents demonstrate the very fact of which he complains. That is, that prospective employers who are otherwise considering his services withdraw offers or cease to be inclined to employ him once those conditions (including particularly that all employees in the practice must also be told) are revealed.

[12]  Of course, the mere fact that conditions operate with this practical effect would not mean that they ought be removed or varied if they remained necessary or appropriate to achieve the protective purposes referred to above. Inherent in conditions being imposed upon a practitioner's registration is that this will impact upon the practitioner's ability to practice. It remains necessary and appropriate for any employer of the Registrant to be aware of the Tribunal's order and any conditions imposed.

  1. [19]
    In Health Ombudsman v Kirk [2019] QCAT 301 by reference to the concept of “serious risk” in the Health Ombudsman Act 2013 (HO Act), his Honour Judge Allen QC said (at [14]):

The term, “serious risk”, is not defined in the HO Act, the National Law or the Acts Interpretation Act 1954. The term therefore takes its ordinary meaning in its statutory context. The word, “serious”, is defined in the Macquarie Dictionary as:

Of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind.

The application

  1. [20]
    Ms Porteous’ application filed on 10 August 2020 essentially pleads four bases upon which she says the Board’s decision should not stand. The first is that the Board had “no reasonable basis” for its decision.[13] The second (which was not pursued for good reason in my opinion) is that the Board failed to provide Ms Porteous “natural justice” in reaching its decision on 30 July 2020. The third contention is that the Board in reaching its decision made a “manifest error of law”. Again this was not pursued; the position of Ms Porteous by the time of the contested hearing, being that on the basis of the material before the Tribunal, the Tribunal could not reasonably believe that “because of (her)” conduct or performance (she) poses a serious risk to persons”, and it is not necessary to take immediate action to protect public health and safety.  Finally, the application seeks relief that the Board erred in relying upon Ms Porteous’ disciplinary history to which reference will be later made. Again, I did not understand this ground to be pursued by Mr Morris QC at the hearing.

The history of the matter

  1. [21]
    On 4 June 2020 the Office of the Health Ombudsman (OHO) received a confidential notification in relation to Ms Porteous which was referred to APHRA on or about 12 June 2020.[14] The Tribunal is aware that the notifier is a registered pharmacist, Ms Z, then employed at the pharmacy.  Her name will be anonymised throughout for these reasons. The Tribunal made non publication orders on 20 August 2021 on the application of the Board which will protect her privacy and her identity as well as the privacy and identity of other witnesses called by the Board in the proceeding and any of the patients who are named in any document or thing produced to the Tribunal.  That non-publication order will also prohibit the publication of any document filed in the Tribunal; evidence given before the Tribunal; any order made or reasons given by the Tribunal and any other information to the extent to which it could identify or lead to the identification of those persons.
  2. [22]
    Her notification was that she “had received a call” from a customer named [Ms D] that day i.e. 4 June 2020. Ms D had alleged to Ms Z that Ms Porteous had given her “Schedule 8 medications, syringes containing Morphine and prescriptions of other consumers to destroy”. Ms Z told OHO that “she has photos of the drugs, prescriptions and syringes on her phone.  There are bags and bags of them, none of which were actually prescribed to the consumer”. There are what appear to be details of other phone calls between OHO and Ms Z which were not explored in evidence. She apparently emailed the photos to OHO after the original notification, and confirmed in her evidence that the photos are the coloured copies marked Annexure A,[15] to her statement taken on 4 January 2021.[16]
  3. [23]
    Upon referral to APHRA, inspectors from the Metro North HHS Public Health Unit interviewed Ms Z on 23 June 2020,[17] and Ms D the following day.[18]
  4. [24]
    The investigators photographed the medications which were then in Ms Z’s possession,[19] and photographed Ms Z’s photographs on her phone;[20] the photograph she says she took at Ms D’s house on the evening of 5 May 2020. I infer that, in relation to each photograph, the investigators photographed the phone so as to identify when and where the photographs were taken by them. The times on Ms Z’s phone are all on 5 May but between 12.31 pm and 12.35 pm. The apparent discrepancy between this timing and her statement in which she says that her contact with Ms D when she took the photographs was on the evening of 5 May 2020, was not explored in cross‑examination but I shall return to it later.
  5. [25]
    The medications were seized by the inspectors and later destroyed. Ms Z had the used prescriptions in her possession when she was first interviewed and they were photographed by the inspectors at that time.[21] Ms Z produced these prescriptions to the Tribunal when she gave evidence on 19 August 2021.[22] It is not contested that these prescriptions, or at least the ones examined closely[23] were old (i.e. more than two years) and dispensed by the pharmacy and not to Ms D. In her interview with inspectors Ms D says that Ms Porteous gave her medications “only once”,[24] but “thought there was another bag – but there’s no other bag”.[25] In fact, she says she later found another bag which was seized by the inspectors in October 2020. In relation to the prescriptions, in this interview she also mentions “Phillip” receiving bags of used prescriptions from Ms Porteous, and putting these on her front verandah.[26]
  6. [26]
    We now know (as a result of evidence given by Ms D on 20 August) that Phillip is her 42 year old son who was living with her at the house near the pharmacy during the relevant period and, according to her, doing some part-time work at the pharmacy. The transcript of that interview is at times extremely discursive,[27] and is heavily redacted and hard to follow, but she appears to suggest that it was her son who was burning prescriptions during a fire ban late in 2019[28] which resulted in the fire brigade coming and, according to her, fire officers actually seeing unburnt prescriptions in the yard and in the neighbour’s yard.

The disciplinary history of Ms Porteous

  1. [27]
    As I read the decision of the Board under review, the disciplinary history of Ms Porteous informed the Board’s reasonable belief that it was necessary to take immediate action to protect public health and safety. Such is self-evident from the relevant section of the decision notice.[29]
  2. [28]
    The Board, in its submissions filed in these proceedings, provides a fair summary of Ms Porteous’ disciplinary history:[30]
  1. (a)
    In February 2014, a Professional Conduct Review Panel found that Ms Porteous had engaged in unsatisfactory professional conduct, and that a ground for disciplinary action under s 200(1) of the Health (Professional Standards) Act 1999 (Qld) had been made out. These findings were based upon several complaints made against Ms Porteous between 2004 and 2006, as well as Ms Porteous’ guilty plea in the Caboolture Magistrates Court on 15 February 2008 for 76 separate counts of contravening the Health (Drugs and Poisons) Regulation (Qld). Those contraventions related to “inadequate and improper labelling for controlled drugs” and “inadequate recordkeeping of controlled drugs”. Conditions were subsequently imposed upon Ms Porteous’ registration (2014 conditions).
  1. (b)
    In April 2014, the Board cautioned Ms Porteous under ss 178 and 179 of the National Law “to ensure she understands the importance of effective communication and patient care with regard to professional conduct” (2014 caution). The caution was given after the Board received a notification that Ms Porteous had treated a customer disrespectively, dispensed out of date medication to him and asked him to run errands for her including delivery of other people’s medication.
  1. (c)
    In May 2015, the Board again cautioned Ms Porteous under ss 178 and 179 of the National Law because Ms Porteous had failed to comply with the requirements of the 2014 conditions within the timeframes provided (2015 caution).
  1. (d)
    In January 2018, a Performance and Professional Standards Panel found that Ms Porteous engaged in unprofessional conduct. The panel found that Ms Porteous had breached the 2014 conditions by failing to maintain a professional membership for a period of three years, failing to complete required professional development activities and failing to complete Quality Care Pharmacy Program accreditation. The panel decided to issue a reprimand to Ms Porteous (2018 reprimand).
  1. (e)
    In May 2019, the Board again cautioned Ms Porteous due to her failure to provide evidence of having completed the professional development activities required by the 2014 conditions (2019 caution).
  1. (f)
    In December 2019, the Board required that Ms Porteous undergo a Performance Assessment pursuant to s 170 of the National Law. The requirement was imposed after the Board received a notification in May 2019 alleging that Ms Porteous had dispensed an incorrect strength of melatonin for a two year old (2019 notification). On 15 July 2020, the Board decided to investigate this matter pursuant to s 160 of the National Law.
  1. [29]
    In relation to the last matter, I was informed by Mr Green who appeared for the Board, that the investigation is still not complete. In the decision notice,[31] inferentially by reference to the two submissions made by Ms Porteous on 9 and 11 July respectively, the Board’s states: “The Board noted that Ms Porteous submitted that she acknowledges the prior breaches of the Regulations…”
  2. [30]
    This is a reference to the first disciplinary matter referred to above, and to the Health (Drugs and Poisons) Regulations 1996, which were in effect between 2004 and October 2006. It is extremely concerning that the decision notice referred to above by the Professional Conduct Review Panel was not made until 14 February 2014, given that the relevant conduct had occurred over seven and half years previously. This is evident from the decision notice itself,[32] as being a matter taken into account by the Panel.
  3. [31]
    A fair summary of the factual basis for the decision is set out as part of the reasons for the decision made by the review panel:

“2) the Registrant has been convicted of an offence against an Act of the State, the Commonwealth or another State related to the practice of the registrant’s profession to which the registrant entered a plea of guilty in the Caboolture Magistrates Court on 15 February 2008 in relation to 76 separate counts of contravening the Health (Drugs and Poisons) Regulation 1996 and the Health Regulation 1996.

3) the offences relate to inadequate and improper labelling of controlled drugs, using improper containers for controlled drugs, inadequate recordkeeping of controlled drugs, failure to report certain matters about controlled drugs to the Chief Executive and improper storage of controlled drugs.”

  1. [32]
    The apparently large number of convictions for what are regulatory and not criminal offences is explained by the decision notice itself:

“11. Between 31 August 2006 and 11 September 2006, the registrant dispensed Subutex (a controlled drug) to RW a patient of the Nambour ATODS Clinic, on each of the 12 days without being authorised to do so as required of Regulation 51 of the Regulations.

  1. During August and September 2006, the registrant failed to enter into the Pharmacy Controlled Drug Book the details of controlled drug transactions within the timeframe prescribed by Regulation 87 of the Regulations.
  1. In August 2006, the registrant failed to send to the Chief Executive written instruction for methadone liquid and Buprenorphine (controlled drugs) within the timeframe prescribed by Regulation 84 of the Regulations.
  1. Between July 2005 and October 2006, the registrant failed to store controlled drugs in a fixed receptacle in accordance with the requirement of Regulation 119(1) of the Regulations.
  1. On 16 October 2006, the registrant failed to keep at the pharmacy a copy of the Regulation as required by Regulation 25 of the Health Regulation 1996.
  1. On 15 February 2008, the registrant pleaded guilty to the following offences:
  1. (a)
    12 counts of contravening Regulation 51 of the Regulations with respect to the conduct described in paragraph 11;
  1. (b)
    56 counts of contravening Regulation 87 of the Regulations with respect to the conduct described in paragraph 12;
  1. (c)
    29 counts of contravening Regulation 84 of the Regulations with respect to the conduct described in paragraph 13;
  1. (d)
    one count of contravening Regulation 119 of the Regulations with respect to the conduct described in paragraph 14; and
  1. (e)
    one count of contravening Regulation 25 of the Health Regulation 1996.
  1. The registrant was fined a total of $19,275 (reduced to $15,000 on appeal) and ordered to pay $750 in professional costs and $190.20 in court costs. No convictions were recorded.”
  1. [33]
    As can be seen, most of Ms Porteous’ disciplinary history relates back to the 2014 decision. In the proceedings before the Tribunal, both in her sworn evidence filed in the Tribunal,[33]  Ms Porteous attempted to go behind and dispute the factual basis of a number of the matters which have resulted in disciplinary action, since the decision of the review panel in December 2014. To some extent, in the limited cross-examination conducted by Mr Green on behalf of the Board, she sought to do the same by referring to her health and/or actually denying the factual allegations in relation to a number of matters, but given that her sworn evidence is at this stage largely uncontested, in this regard it is not possible to reach any conclusions adverse to her.
  2. [34]
    In reality, she had no disciplinary history at all until the Panel’s decision of February 2014, although the conduct relating to that decision dated back seven and half years.

The Board’s decision

  1. [35]
    The decision notified to Ms Porteous on 13 July 2020 was based on the material then before the Board. The “information considered” is set out in the notice.[34] It is clear to me that the critical “factual” matters that informed the Board’s then held reasonable belief are set out in paragraph 3 of its reasons for decision which is set out above.[35]
  2. [36]
    In summary, the Board had a complaint that Ms Porteous had provided a significant quantity of Schedule 8 and Schedule 4 medication and syringes to Ms D, a casual employee of the pharmacy, and a patient who had not been prescribed any of the medication. The Inspectors had confirmed to AHPRA that both the notifier (Ms Z) and the consumer (Ms D) had been spoken to and “confirmed the allegations as made in the notification”. The Board had the photographs allegedly taken by Ms Z on her phone on 5 May, and confirmation from the Inspectors that they had seized the drugs and photographed them and photographed Ms Z’s phone. In the opinion of the Board “the risk (was) heightened” “in circumstances where (it was alleged) Ms Porteous also provided a large number of prescriptions to Ms D”. It is clear that the Board did not then have the transcript of the interviews undertaken between Inspectors and Ms Z and Ms D on 23 and 24 June 2020.
  3. [37]
    Despite Ms Porteous’ vehement denials that she had supplied dangerous medications and/or large quantities of prescriptions to Ms D, the material before the Board was clearly sufficient to found a reasonable belief in terms of section 156(1)(a)(b) of the National Law.

The proceedings before the Tribunal

  1. [38]
    The Board, by reference to its actions, maintains its “reasonable belief”, taking into account all the additional material filed before the Tribunal. Clearly, as Mr Green was supporting the Board’s decision after the cross-examination of Ms Z and Ms D, the Board’s position is that it still then held such a belief.
  2. [39]
    In my opinion, particularly in relation to the evidence of Ms Z, it is not necessary at this stage for the Tribunal to reach any firm conclusions about what she saw and did. It is not necessary, and at this point not open, to reach any conclusion in relation to Mr Morris’s primary submission that Ms Z and Ms D have colluded and conspired to make up what would indeed be a monstrous and complex lie by way of retribution against Ms Porteous, because of her conduct and the conduct of her staff towards them. In my opinion, this contention, made by Mr Morris in his closing address, is not borne out on the present state of the material before the Tribunal.
  3. [40]
    As the decision notice itself notes, the Board decided to refer the matter for investigation under section 160(1) of the National Law. I was informed by Mr Green on 20 August that the investigation is ongoing. It is not the role of the Tribunal, in proceedings of this nature, to reach conclusions on factual disputes on the basis that the Board has some onus. Section 20 of the QCAT Act (read in conjunction with relevant sections of the National Law) sets out the role of the Tribunal at this stage to which reference is made earlier in these reasons.
  4. [41]
    In relation to Ms Z and Ms Porteous, it is clear that at the time Ms Z ceased her employment with the pharmacy (late June early July 2020), the relationship between them had broken down completely. Each has articulated in very strong terms the reasons why they say that had occurred, but it not necessary for me to reach any conclusion about this at this stage. There are a number of observations that can be made at this stage without drawing any conclusions:
    1. (a)
      Ms Porteous was notified of the allegations on 7 July 2020.
    2. (b)
      Ms Porteous says Ms Z left her employment on 4 July 2020 and I didn’t understand Ms Z to dispute this date.
    3. (c)
      Ms Z had worked for Ms Porteous for three months in 2018, but resigned as a result of what she says was a disagreement over various protocols and practices at the pharmacy. Ms Porteous disputes this. It is common ground that Ms Porteous contacted Ms Z in late 2019 to ask her to return to work at the pharmacy which she did commencing in early November 2019. Each gave conflicting reasons around the circumstances of the rehiring which dispute it is not necessary for me to resolve at this stage.
    4. (d)
      The circumstances surrounding the cessation of Ms Z’s employment in or around 4 July 2020 are disputed and it is not necessary to resolve those disputes.
    5. (e)
      When Ms Z returned to the pharmacy on 4 November 2019, she makes reference to a young man working at the pharmacy named Joel. Joel has provided an affidavit in this proceedings. In that affidavit he described Ms Z in disparaging terms.[36] Joel was not cross-examined but Ms Z disputes a lot of what he says.
    6. (f)
      Annexed to Joel’s affidavit[37] is a letter dated 7 July 2020 relating to Ms Z’s alleged behaviour, and particularly an incident which Joel says occurred on 24 June 2020 which he says caused him to contemplate suicide at that time. He states in the letter “your pharmacist [Ms Z] has threatened, intimidated, and bullied me to the point I was thinking my life wasn’t worth living.”

As I have noted, he was not cross-examined, so no conclusions can be drawn about his evidence however for present purposes I note that his letter to Ms Porteous is dated 7 July 2020.

  1. (g)
    Ms Porteous’ sister Maria, who was also employed at the pharmacy as a pharmacy assistant during the relevant period has also provided an affidavit, and Ms Porteous provided a second affidavit[38] in response to the statements made by Ms Z and Ms D.
  2. (h)
    There was cross-examination of Ms Z about showing Ms D how to complete her own Webster pack, as alleged by Ms Porteous. Ms Z disputes this although her evidence on this point was unclear. It is common ground that Ms D had been prescribed an array of medications dispensed to her at the pharmacy. Ms Porteous sets out these medications at paragraph 137 of her first affidavit:[39]

“……. since January 2019:

  1. (a)
    Dothiepin 75mg three at night (antidepressant)
  1. (b)
    Cephalexin 250mg (antibiotic)
  1. (c)
    Esomeprazole 20mg (for acid reflux)
  1. (d)
    Kenalog in orabase (for mouth ulcers)
  1. (e)
    Doxycycline 50mg (antibiotic)
  1. (f)
    Atorvastatin 20mg for cholesterol
  1. (g)
    Verapamil Sustained Release – High Blood Pressure
  1. (h)
    Warfarin Img (blood thinner)
  1. (i)
    Warfarin 3mg (blood thinner)
  1. (j)
    Pantoprazole 40mg one daily for reflux, stomach ulcers
  1. (k)
    Paracetamol 500mg
  1. (l)
    Sotalol 80rng
  1. (m)
    Salbutamol Inhaler for asthma
  1. (n)
    Ciclesonide 160mg inhaler for asthma
  1. (o)
    Nitroglycerin lingual spray 400mcg to prevent angina
  1. (p)
    Doxylamine 25mg to help assist sleep
  1. (q)
    Folic acid to treat anaemia
  1. (r)
    Pramipexole 0.125mg for Parkinson Disease and Restless leg Syndrome
  1. (s)
    Diazepam 5mg to treat anxiety, alcohol withdrawal and seizures
  1. (t)
    Sodium Valproate 200mg for Epilepsy and bipolar disorder
  1. (u)
    Oxycodone 5mg (ENDONE)
  1. (v)
    Clexane 60mg injections (blood thinning agent that patients inject by themselves.”
  1. (i)
    Subsequent to the decision notice on 13 July 2020, namely on 15 July 2020 Ms Porteous made a complaint to OHO about Ms Z.[40] She states in her affidavit[41] that this came about:

“106. After Z ceased work on 4 July 2020, I conducted an audit of the Pharmacy and discovered various instances where Z had failed to properly complete and balance the Dangerous Drug Book.

  1. On 15 July 2020, I made a complaint to OHO in relation to Z's conduct in the Pharmacy, particularly in relation to the Dangerous Drug Book (the Complaint).”
  1. (j)
    The complaint (in its terms) was much more than this:

Complainant stated that the practitioner was very rude to staff in general and made all the staff physically cry. On one occasion the practitioner upset a male junior member staff to the extent that he went home crying and felt like taking his own life. Complainant stated that she brought this to the attention of the practitioner the very next day due to the serious nature of the concerns.

Complainant stated that the parents of the young male member of staff have written to her outlining the treatment by the practitioner and the parents have also raised concerns with AHPRA. Complainant stated that both the young male member of staff and father had also written letters about it.

Complainant stated that Z’s mannerism to customers was very very poor and that the practitioner has made many customers very upset to the extent that they left the pharmacy in tears on many, many occasions. As an example on one occasion one customer had a script for a preventer and Z used the words ‘to the effect of .. you are not allowed to come here’. (sic) Complainant stated that the practitioner was also very aggressive towards many customers and embarrassed patients by discussing their medication very loud (sic) in front of many people where customers would leave the pharmacy in tears. All this has been done in the absence of the pharmacist owner as this pharmacy is open extended hours for the benefit of the community 7 days a week. Complainant stated that the practitioner would shout at the customers and would bang on the dispensary bench with scissors in her hand. Z shows multiple personalities and can flip anytime in anger and rage. The pharmacist owner had a lot of complaints from various customers who also stated that they were going to raise concerns with the complaints body. Many of these complaints has (sic) been and continuously being brought to the owners (sic) attention by customers.[42]

  1. (k)
    This complaint was referred to AHPRA,[43]and was found to be unsubstantiated on 5 January 2021.
  2. (l)
    A complaint was made to AHPRA on 9 July 2020 by a patient of the Pharmacy, Mr DG.  The details of the complaint seem to relate to a complaint by the patient about Ms Z’s attitude to him over a flu vaccination arrangement made with him by Ms Porteous. The complaint does not have a date, but must have been made prior to 4 July 2020. This person has not provided a statement in these proceedings, and it appears from the annexures to Ms Porteous’s affidavit at Tab 42 that the complaint was referred back to OHO and it seems not to have progressed. In his closing address and early in his cross-examination of Ms Z, Mr Morris was very critical of her apparent lack of memory about this complaint. Given that the complaint made by his client on 15 July contained a number of similar themes (for example, rudeness to patients, attitude to staff, etc, and the timing of both complaints) her memory difficulties about Mr DG are perhaps unsurprising.
  3. (m)
    It is not suggested that Ms Z, an experienced Pharmacist who has worked all over the country, has any disciplinary history.
  4. (n)
    Yet another complaint was made to OHO about her by a Mr DI on 19 July 2020. His complaint was dismissed because he did not provide information requested by OHO.[44] It is not known therefore if he too was a patient of the Pharmacy.
  5. (o)
    There are differences in the various accounts given by Ms Z, firstly in her confidential notification, then in her recorded interview with the inspectors, her statement to AHPRA and in her evidence to the Tribunal in these proceedings on 19 August. This is hardly surprising. In fact, a witness who gives exactly similar accounts about events on various occasions in different circumstances, would, as a matter of logic and common sense, cause a Tribunal such as this one, to be suspicious. The presentation of Ms Z and Ms D to give evidence at the hearing came about as a result of a request by the Tribunal and assessors that they be made available to give oral evidence. I agree with Mr Green that the process of giving evidence was stressful for both of them. I do not criticize Mr Morris for doing his job, but at times his cross-examination of both women, and especially Ms Z, was extremely aggressive, leading to my intervention on a few occasions. His cross examination of Ms D on Friday 20 August was much more measured and effective as I will discuss later in these reasons. The Tribunal recognises the limited nature of these proceedings to determine facts, however, in circumstances in which the allegations that relate to the relevant “conduct or performance” of Ms Porteous, depend largely on the evidence of these two people, and especially Ms D, it was thought that fairness dictated that Ms Porteous, who has always vehemently denied the central allegations of supplying dangerous drugs and used prescriptions to Ms D, should have an opportunity to test the evidence. Ms Z was clearly very stressed during her evidence. As a result she was at times defensive and unwilling to answer questions, although she was obviously intimidated by the strenuous attack on her credibility.
  6. (p)
    A couple of the differences in her various accounts relate to the timing and mechanism as to how she came to be at Ms D’s house on the evening of 5 May, where she says (in the context of her telling Ms D about the stresses of working at the Pharmacy), Ms D raised the issue of medications and/or prescriptions, and she came to take the photos on her phone referred to above. For reasons that will become apparent, I have not considered it necessary to reach any final conclusions on any of these issues.
  7. (q)
    Although defensive at times, Ms Z was prepared to make concessions (for example, that she might have raised her voice at times in front of patients) and she seemed to agree that she allowed the unqualified Ms D to check her own Webster pack, although Ms D says it was Ms Porteous who showed her how to put together her own medication pack.
  1. [42]
    With these observations in mind, I now turn to the evidence of Ms D. Her evidence is critical to the issue of reasonable belief as to the relevant conduct and/or performance of Ms Porteous.
  2. [43]
    It is obvious that medications, and a very large number of used prescriptions, were in the possession of Ms D at her home near the Pharmacy in May 2020. She had no right to have them, and the photographs taken by Ms Z and later the inspectors clearly influenced the Board’s formation of a reasonable belief that it was Ms Porteous who had provided those items to her.
  3. [44]
    On the material before the Board, Ms D started working part-time at the Pharmacy at the behest of Ms Porteous around mid-2019. There are conflicts between her and Ms Porteous as to the circumstances surrounding that fact, however it is common ground that she was paid $10 an hour cash in hand for her time and that, predominantly, she worked in the evenings with either Ms Porteous or another pharmacist on call, including Ms Z from sometime in January 2020. The as yet unchallenged evidence of others who worked at the Pharmacy at relevant times, suggests that Ms D became involved in rostering of staff. She was not asked questions about this, but it strikes me as very odd that a completely unqualified person with known multiple medical conditions,[45] would be given such responsibilities. In her evidence to the Tribunal, Ms Z says that Ms Porteous had told her not to trust Ms D because of her ethnic background (which Porteous disputes); whereas although in her evidence to the Tribunal (and also in her interview with the inspectors) Ms D’s account was difficult to follow, she describes a very good relationship with Ms Porteous right up until an alleged incident in April 2020 which led to her dismissal from employment.
  4. [45]
    Ms D has provided information about the allegations on three occasions. The first was her recorded interview with health inspectors on 24 June 2020, at a time when it would ordinarily be expected that relevant events would be more prominent in her memory. The Tribunal, and indeed the Board, have only ever had a transcript of that interview, which is heavily redacted. In that interview she did refer to a male named Phillip,[46] who she did not then identify, being involved in placing bags of prescriptions from the Pharmacy on her front veranda, and being involved in burning some of them during a fire ban (she says towards the end of 2020). It does not seem to be contested that she did not work at the Pharmacy in November (in hospital) or December (on holiday with her family in Vietnam) in 2020. It was on this occasion involving Phillip that she told inspectors that the fire brigade was called.[47] By the time she made her statement to AHPRA,[48] she describes an incident in April 2020 (involving she and her son Phillip being behind the prescribing counter which was apparently observed by Ms Porteous via installed CCTV), which she says lead to her being dismissed and her son Phillip being let go a few days later, and she tells AHPRA that he had then been working at the Pharmacy for a “few months”. By the time of her evidence before the Tribunal on 20 August 2021, she stated (on oath) that her son Phillip aged 42 took over “her role” at the Pharmacy in November 2020, and that Ms Porteous also asked him to bring home bags of used prescriptions to be destroyed by burning. I infer that her son was living with her at the house at around the time she alleges Ms Porteous gave her the medications. Ms D says she stored these medications in a cupboard at her home and it was Phillip who later asked her to see if Ms Z could help to advise her what to do with the prescriptions which were then accumulating in his bedroom. According to Ms D this exchange occurred in April 2020.[49]
  5. [46]
    Her evidence that her son (as at April 2020) had only worked at the Pharmacy for a few months cannot stand with her evidence that he took over when she went to hospital in November 2019. In relation to the prescriptions, Ms D says that Ms Porteous started giving her prescriptions to destroy by burning a few months after she stared to work for her. Ms Porteous denies this and her evidence is essentially unchallenged at this stage, however despite her attempts to distance herself from the bags of prescriptions photographed by inspectors when they interviewed Ms Z, a number taken at random by the Tribunal from Exhibit 5 (i.e. Exhibit 6), and others tendered by Mr Green which also came from Exhibit 5 (Exhibits 6, 7, 8 and 9) indicate that these prescriptions were definitely dispensed by the Pharmacy, and some by Ms Porteous herself.
  6. [47]
    In her evidence on 20 August, Ms D was able to pinpoint the time the fire brigade came to her house, and (she says) fire officers were in a position to witness prescriptions in her yard and the neighbour’s. She says it was 30 September at night and Phillip had made a bonfire and was burning prescriptions when the fire brigade was called. This is close to the time she says Ms Porteous had handed her the medications to dispose of,[50] namely around September 2019. She does refer obliquely to this in her interview with the health inspectors but not in her later statement.
  7. [48]
    The added difficulty is that at no time does Ms Z refer to Phillip working at the Pharmacy, nor does she say that Ms D mentioned him when she first told her of the alleged arrangement with Ms Porteous to take bags of prescriptions from the Pharmacy and destroy them by fire. Ms Porteous deals in some detail in her first affidavit with the names of people working at the Pharmacy during the relevant period; and affidavits have been filed from her sister, Joel and the other Pharmacist working during at least part of the relevant period, Mr Win On Mok, and no-one refers to Phillip working ever at the Pharmacy.
  8. [49]
    In my opinion, this is important for the reason stated earlier, namely that it is Ms D alone who says directly that it was Ms Porteous who gave her dangerous medications once and used prescriptions many times over the period of her employment at the Pharmacy. If indeed, as she swears, her son was working at the Pharmacy from November 2019, and also receiving quantities of prescriptions from Ms Porteous to dispose of by burning, evidence from him could be critical to:
    1. (a)
      the reliability of his mother’s evidence; and
    2. (b)
      how the medications and prescriptions got to Ms D’s house by the time Ms Z first saw them in May 2020. If she is correct, he had access to the Pharmacy during the relevant period. She told Mr Morris during cross examination that Phillip was outside the hearing room as a support person, so there is no suggestion (at least on her account) that he is unavailable for any reason.
  9. [50]
    There is another feature of Ms D’s evidence that also causes me to have concerns about the reliability of her allegations at this stage. She has always said that Ms Porteous gave her dangerous medications on only one occasion, around September 2019. It is common ground that none of the medications seen on 5 May by Ms Z and seized from her by the inspectors in June, were dispensed by the Pharmacy. In so far as it can be determined (by looking at the boxes of medications depicted in the various photos), they were dispensed by other Pharmacies to a Mr JK who Ms Porteous says (without challenge) was never a patient at the Pharmacy.
  10. [51]
    In Ms D’s interview with the inspectors on 24 June, she told them she thought there was another bag “but there’s no other bag”.[51]At this time (September 2019) both she and Ms Porteous say that they had a friendly relationship. It does seem extraordinary, as Mr Morris suggests, that an experienced Pharmacist, for no other reason but convenience, would give a large quantity of dangerous drugs, including syringes containing Morphine, to someone she knew to have multiple medical conditions, at least one of which had involved the dispensing of Schedule 8 medications for pain in the past.[52] Nevertheless, there is no doubt that these medications were in her house and in the possession of Ms Z when photographed by the inspectors on 23 June.
  11. [52]
    Ms D’s evidence has always been that Ms Porteous asked her to get her daughter C, who apparently then worked in a dental surgery, to dispose of the medications and sharps through her work. Again, on its face, that is a remarkable proposition, that, simply to avoid having to unlock the door to the Pharmacy and return the items to the safe (i.e. convenience), she would risk involving yet another person, this one who on the evidence she did not know, in such a dangerous task. There is other evidence in the material which shows that around the same time Ms Porteous was engaged in processes to dispose of controlled drugs in the proper way.[53]
  12. [53]
    Her evidence is that she asked her daughter about it and the daughter told her that could not happen and that she only raised the matter with Ms Porteous once quite soon after the alleged event. There is no statement from C before the Tribunal. Ms D says that once she hid the medications in a cupboard, she forgot about them. This is hard to accept in light of the evidence in her statement to AHPRA on 8 February 2021 that in April 2020, when she was in considerable pain, she contemplated using some of the morphine but did not. She told the inspectors in June 2020 that at some stage (not specified) she had broken 2 of the vials.[54]
  13. [54]
    I have referred earlier to a passing comment to the inspectors by her in June 2020 about another bag but Ms D saying there is no other bag. We now know that she says that in fact she did locate another bag of medications in September 2020, and contacted the inspectors who photographed the medication before seizing and destroying it in October 2020.[55] Unfortunately, I did not appreciate the significance of these photographs at the time of the hearing and neither did any of the assessors. Neither apparently did Mr Green. This is no criticism of anyone. In reality, with such an extensive brief, it is common for small pieces of evidence to be overlooked. Although specifically referred to in the Board’s submission filed prior to the hearing,[56] Mr Green did not address any submissions to the identity of the patient to whom some of those medications were apparently dispensed and the dispensing Pharmacy. This information did not inform the Board’s decision under review. Some of these medications, which are morphine sulphate vials, are dispensed to a patient named CA by Morayfield Day & Night Pharmacy.[57] This was not addressed in any of Ms Porteous’ material, despite being in the material which was provided to her solicitors.  In those circumstances, the Tribunal should consider this potentially significant material but it should be given little weight on the review, given that it was not raised at the hearing, and even when addressed in the Board’s submissions, the identity of the patient and dispensing pharmacy was not the focus. It will no doubt be something that might be considered further in relation to the section 160 investigation.
  14. [55]
    Until 20 August 2021, based on the material produced after 13 July 2020, it was the position of the Board that Ms Z took photos of the medications and sharps (seized in June 2020) on her phone, which phone with photos was photographed by the inspectors on 24 June when they interviewed Ms Z. In her statement to AHPRA (for the first time) Ms D says that when Ms Z came to her house and viewed the medications and prescriptions for the first time, she (Ms D) took photos on her phone. None have ever been produced, and it is not suggested that anyone connected with the Board has ever seen such photos. In her interview with the inspectors on 24 June, she says on a number of occasions that Ms Z took photos on her phone which accords with the evidence of Ms Z. At no time, prior to giving evidence under cross-examination before the Tribunal on 20 August 2021, had Ms D ever suggested that she had photographed the items and then sent them to Ms Z’s phone but this is what she told Mr Morris in cross-examination. I accept what Mr Green says generally about her evidence before the Tribunal; that she was clearly quite stressed and anxious. On the other hand, she stood up to Mr Morris on a number of occasions when he was challenging her honesty. As I understood what she was saying in this part of her evidence, it is that it was her action in sending the photographs to Ms Z that prompted the visit to the house by Ms Z. This is completely contrary to what Ms Z says happened.  In her evidence in cross examination she also said that a month passed between when she says Ms Z was told by her about the prescriptions, and when she (Ms Z) collected them from her house. She seemed to be saying that it was after this that she told Ms Z about the medications which is contrary to Ms Z’s evidence.
  15. [56]
    Finally, on the issue of what weight the Tribunal should afford the key evidence of this witness at this stage in assessing its reasonable belief as to any conduct and/or performance by Ms Porteous that would in turn inform the belief that the Tribunal now holds as to whether or not she “poses a serious risk to persons”, I refer to Exhibit 12. This is a copy of an email sent to the Board’s lawyers on the evening of 19 August by Ms Z’s husband. He was present during most of the time she gave evidence that day as a support person with the agreement of the Tribunal. It primarily relates to a dispute between his wife and Ms Porteous relating the registration of the pharmacy as a vaccination provider in April 2020. I do not think this dispute needs to be resolved at this stage. However, quite properly, the husband also informed the lawyers in these terms:

“While we were waiting to be picked up, [Z] phoned [D] (sic), telling her (words to the effect) to expect “a shit stir” and that “they will go after you”.

I quickly intervened and said to hang up before discussing the proceedings. [Z] ended the call without discussing any details of today’s proceedings.”

  1. [57]
    Mr Green, quite properly, tendered a copy of the email before Ms D gave oral evidence. Mr Morris cross examined her about this part of the email. She told him that she had rung Ms Z and not the other way around. She told him that it would not be true to say that Ms Z had rung her. She denied any of the discussion detailed above. She was asked about this issue at the commencement of her cross examination. Ms Z’s husband disclosed matters that were potentially against his wife’s’ interests. He was clearly being truthful. I am satisfied that Ms D simply lied about this issue. It was a casual lie about a quite insignificant matter relating to events that occurred in the last 24 hours. It shows at best a reckless indifference to the truth, a matter about which the Board could not have known until the afternoon of 20 August.

Conclusions

  1. [58]
    In all the circumstances set out above, and in terms of the terminology set out in some of the authorities referred to above, the “mind” of the Tribunal is inclined at this stage to not accepting the proposition that Ms Porteous supplied dangerous drugs and sharps to Ms D in or around September 2019, and is therefore not inclined to accept the proposition that for that reason, she now poses a serious risk to persons. The reasons expose some areas that may be the subject of further investigation but that is not a matter now for the Tribunal.
  2. [59]
    The Tribunal, for the same reasons but with some hesitation, is not inclined to accept the proposition that Ms Porteous did engage Ms D on a long-term basis to remove from the pharmacy, and destroy by burning, large quantities of used prescriptions. Again, there are matters identified in the reasons, not the least being the photos of large quantities of prescriptions some of which appear to come from the Pharmacy by inspectors on 23 June which were produced by Ms Z on 19 August 2021 and are now Exhibit 5, that lean towards the contrary inclination of the mind; but the reasons expose why the Tribunal’s belief is that, at this time, these matters need further investigation, which is not a matter for the Tribunal.
  3. [60]
    It follows that the Tribunal does not presently reasonably believe that Ms Porteous has engaged in conduct which means that she poses a serious risk to persons. It follows that there is presently no basis for taking immediate action, and the order to that effect made by the Board on 13 July 2020 is set aside.
  4. [61]
    Any submissions arising out of these reasons including as to costs should be filed within 14 days of the delivery of these reasons. Any issue raised by the filing of any submissions will be determined on the papers.

Footnotes

[1]Hearing Brief (HB), Tab 13.

[2]Section 156, Health Practitioner Regulation National Law (Queensland) (National Law).

[3]HB, Tabs 14 and 15.

[4]HB, Tab 2, page 20.

[5]HB, Tab 2, page 21.

[6]Ibid, page 22.

[7]Section 158, National Law.

[8]HB, Tab 1.

[9]Section 20(1) and (2) of the QCAT Act.

[10][2013] WASCA 259.

[11]Farshchi v Chinese Medicine Board of Australia (Review and Regulation) [2018] VCAT 1617 at [46].

[12]In this case, section 178 specifically, but the meaning of “reasonable belief” carries the same meaning as it does when used in section 156.

[13]HB, Tab 1, pages 13-14.

[14]Tab 24, page 213.

[15]Tab 37, pages 655-657.

[16]Tab 37, page 650 by APHRA.

[17]See Transcript, HB, Tab 26.

[18]See Transcript, HB, Tab 25.

[19]Tab 28, pages 309-322.

[20]Tab 28, pages 322-331.

[21]Tab 28, pp 332-340.

[22]Exhibits 5-9.

[23]Exhibits 6, 7, 8 and 9

[24]Tab 25, p 227.

[25]Ibid, p 228.

[26]Ibid, p 235.

[27]See for example, Tab 28, page 237.

[28]Tab 25, page 236.

[29]Tab 2, pages 23-24.

[30]Tab 46, pages 935-936.

[31]HB, Tab 2, page 24.

[32]HB, Tab 8, and Exhibit 3.

[33]HB, Tab 42, pages 773-776.

[34]HB, Tab 2, page 25.

[35]HB, Tab 2, page 21.

[36]Tab 40, page 745 here in brief paras 19 and 20.

[37]Tab 40, page 742 here in brief.

[38]HB, Tab 44.

[39]HB, Tab 42, page 781.

[40]HB, Tab 42, page 181, page 866.

[41]HB, Tab 42, page 777.

[42]HB, Tab 42, page 868.

[43]Ibid, page 878.

[44]Ibid, page 895.

[45]HB, Tab 48 (first affidavit of Porteous); page 781, paragraph 137.

[46]HB, Tab 2, pages 234-235.

[47]HB, Ibid, page 236.

[48]HB, Tab 38.

[49]HB, Ibid, page 662, paragraph 33.

[50]HB, Tab 25 page 227; and in her statement at Tab 38 page 660.

[51]HB, Ibid, page 228.

[52]HB, Tab 42, page 781, paragraph 137.

[53]HB, Tab 31.

[54]HB, Tab 25, page 233.

[55]HB, Tab 34.

[56]HB, page 933, paragraph 30(c).

[57]Tab 34 HB p.624

Close

Editorial Notes

  • Published Case Name:

    Porteous v Pharmacy Board of Australia

  • Shortened Case Name:

    Porteous v Pharmacy Board of Australia

  • MNC:

    [2021] QCAT 286

  • Court:

    QCAT

  • Judge(s):

    Member J Robertson

  • Date:

    27 Sep 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401
2 citations
Jump To
Cite 1 - [2019] QCAT 401
Cite 2 - [2019] QCAT 401
Azam v Medical Board of Australia [2013] QCAT 611
1 citation
Jump To
Cite 1 - [2013] QCAT 611
Bernadt v Medical Board of Australia [2013] WASCA 259
2 citations
Jump To
Cite 1 - [2013] WASCA 259
Cite 2 - [2013] WASCA 259
Farshchi v Chinese Medicine Board of Australia (Review and Regulation) [2018] VCAT 1617
2 citations
Jump To
Cite 1 - [2018] VCAT 1617
Cite 2 - [2018] VCAT 1617
Gupta v Medical Board of Australia [2019] SAHPT 6
2 citations
Jump To
Cite 1 - [2019] SAHPT 6
Cite 2 - [2019] SAHPT 6
Health Ombudsman v Kirk [2019] QCAT 301
2 citations
Jump To
Cite 1 - [2019] QCAT 301
Cite 2 - [2019] QCAT 301
I v Medical Board of Australia [2011] SAHPT 18
1 citation
Jump To
Cite 1 - [2011] SAHPT 18
Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286
2 citations
Jump To
Cite 1 - [2014] QCAT 286
Cite 2 - [2014] QCAT 286
Liddell v Medical Board of Australia [2012] WASAT 120
1 citation
Jump To
Cite 1 - [2012] WASAT 120
Lindsay v NSW Medical Board (2008) NSWSCR 40
1 citation
Jump To
Cite 1 - (2008) NSWSCR 40
Oglesby v Nursing & Midwifery Board of Australia [2014] QCAT 701
1 citation
Jump To
Cite 1 - [2014] QCAT 701
Ord v Nursing and Midwifery Board of Australia (No 2) [2015] QCAT 102
2 citations
Jump To
Cite 1 - [2015] QCAT 102
Cite 2 - [2015] QCAT 102
Pearse v Medical Board of Australia [2013] QCAT 392
2 citations
Jump To
Cite 1 - [2013] QCAT 392
Cite 2 - [2013] QCAT 392
Peters v Medical Board of Australia [2020] QCAT 169
2 citations
Jump To
Cite 1 - [2020] QCAT 169
Cite 2 - [2020] QCAT 169
Shahinper v Psychology Board of Australia [2013] QCAT 593
2 citations
Jump To
Cite 1 - [2013] QCAT 593
Cite 2 - [2013] QCAT 593
The Registrant v A Health Profession Board of Austraia [2013] QCAT 485
2 citations
Jump To
Cite 1 - [2013] QCAT 485
Cite 2 - [2013] QCAT 485
WD v Medical Board of Australia [2013] QCAT 614
2 citations
Jump To
Cite 1 - [2013] QCAT 614
Cite 2 - [2013] QCAT 614

Cases Citing

Case NameFull CitationFrequency
Aggarwal v Health Ombudsman [2024] QCAT 3852 citations
du Toit v Health Ombudsman [2023] QCAT 3734 citations
Porteous v Pharmacy Board of Australia (No. 2) [2021] QCAT 3904 citations
1

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