Health Ombudsman v Park[2021] QCAT 309

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a referral of a health service complaint against Jooyoun Park (respondent), pursuant to section 103(1)(a) and 104 of the Health Ombudsman Act 2013 (Qld) (HO Act) by the director of proceedings on behalf of the Office of the Health Ombudsman (applicant).
2. [2]
   The applicant alleges that the respondent has behaved in way that constitutes professional misconduct and seeks orders by way of sanction. The respondent does not contend otherwise and accepts, generally, the sanctions proposed by the applicant in its submission. The respondent has had the benefit of legal advice throughout the proceedings.

Background

3. [3]
   The respondent is 27 years and was 24 at the time of the relevant conduct. She obtained a Bachelor of Pharmacy on 12 December 2017. She was provisionally registered as a pharmacist on 1 January 2018.
4. [4]
   She worked as an intern pharmacist at a Brisbane pharmacy whilst provisionally registered, during the period of the relevant conduct. Her internship began on 9 January 2018, and she worked at that pharmacy until 29 September 2018.
5. [5]
   The respondent was being supervised at the Brisbane pharmacy by her employer and preceptor, the complainant.
6. [6]
   A prerequisite for a person’s general registration as a pharmacist is the completion of 1824 hours of supervised practice during an internship. An intern is required to keep a record of completed supervised practice hours, and the record is to be signed each week by the intern’s approved preceptor.

Conduct

7. [7]
   The respondent entered her part-time employment as an intern pharmacist with the pharmacy on 29 September 2018. She did not complete the minimum 1824 hours of supervised practice during her employment at that pharmacy.
8. [8]
   On 5 December 2018, the respondent presented a document in the form of a statutory declaration relating to a weekly record of supervised practice hours to a pharmacist at a different pharmacy in Woodridge, in Brisbane. This statutory declaration stated that the respondent had completed the supervised hours detailed within it. It had already been signed, purportedly by the complainant, earlier that day, and the respondent presented the document to the Woodridge pharmacist for the purposes of witnessing that signature. The Woodridge pharmacist signed the document, purporting to witness the signature of the complainant, despite the document having already been signed.
9. [9]
   The form recorded that 1844 hours of supervised practice had been worked by the respondent. This form was false as the respondent had, in fact, not completed the requisite 1824 hours and the complainant had not signed the statutory declaration. The respondent had dishonestly altered the hours recorded in the document, by erasing them and replacing them with a higher figure, and she had forged the complainant’s signature on the statutory declaration.
10. [10]
    Sometime between 5 and 14 December 2018, the respondent submitted the false statutory declaration to the Board, in an application for general registration as a pharmacist. The discrepancy between the supervised hours actually worked, and the number of hours required for registration was 677.5 hours.
11. [11]
    The Board, acting on the false statutory declaration, registered the respondent as a pharmacist on 10 January 2019. She was not entitled to be so registered.
12. [12]
    She continued working as a casual pharmacy assistant in a front-of-shop role from 14 December 2018 until her resignation on 16 January 2019.
13. [13]
    In January 2019, the complainant became aware the respondent had become registered as a pharmacist. The applicant received this complaint on the same day.
14. [14]
    The respondent was informed of the complaint and in the course of dealing with AHPRA, she made a written submission. In it, she made full admissions regarding her false declaration and manipulation of the hours recorded on the record of practice. The submission included the following statements:

    1. (a)
       “I had originally written several of my hours in pencil. The declaration was never signed weekly but in one go. In other words (the complainant), would either sign the declaration several months at a time or in some cases, pre-signed a few fortnights as the rosters were released in advance.”
    2. (b)
       “I admit I have erased the written hours and adjusted them in order to submit my application near the end of 2018.”
    3. (c)
       “I do understand changing the hours of my declaration was wrong and I heavily regret my actions.”
    4. (d)
       The respondent complained to be overworked with administrative tasks and she felt overwhelmed “…which has led to several breakdowns and severely affected my mental health.”
    5. (e)
       “To be entirely honest, I wanted to finish my internship elsewhere, as working for (the complainant) not only in my intern year, but from July 2016, was absolutely suffocating and undoubtedly stressful…but I could not come around to giving notice…”
    6. (f)
       “I successfully passed the written examination and the oral examination in one attempt, despite being approximately 250 hours less than needed for the oral examination.”
15. [15]
    The respondent’s general registration was suspended from 13 February 2019.
16. [16]
    On 8 October 2019, the Health Ombudsman referred the matter to the Queensland Police Service (QPS).
17. [17]
    On 15 May 2020, the respondent attended at the police station and made full admissions.
18. [18]
    QPS subsequently charged her in respect of her dishonesty.
19. [19]
    On 14 October 2020, the respondent was sentenced by the Magistrates Court at Brisbane on her plea of guilty, in respect of four charges, namely:

    1. (a)
       false entry on a record in contravention of section 430(a) of the Criminal Code;
    2. (b)
       forgery and uttering in contravention of section 488(1) of the Criminal Code;
    3. (c)
       uttering a forged document in contravention of section 488(1)(b) of the Criminal Code; and
    4. (d)
       fraud in contravention of section 408C(1)(d) of the Criminal Code.
20. [20]
    At the sentencing hearing, the respondent’s lawyer advised the Court that:

    1. (a)
       once the respondent became an intern, her relationship with (the complainant) deteriorated.
    2. (b)
       the respondent was under a lot of pressure and did not feel respected.
    3. (c)
       the respondent did not transfer her internship because she did not think she would get a good reference from (the complainant).
    4. (d)
       in her own mind, the respondent thought that the only way out of a bad situation was to get registered and obtain another job.
21. [21]
    In sentencing the respondent, the Chief Magistrate took into account her cooperation with AHPRA and the QPS and accepted that she was generally remorseful for her offending.
22. [22]
    She was fined $2,000 to be paid within 28 days and no convictions were recorded.
23. [23]
    Since the conduct the subject of the referral, the respondent has completed a Public Health single major at the University of Queensland, attaining academic commendations, and in March 2021, she completed a cardiopulmonary resuscitation and first aid training course.

Characterisation of the Conduct

24. [24]
    Both parties in the matter agree that the respondent has behaved in a way that constitutes professional misconduct.
25. [25]
    Section 5 of the Health Practitioner Regulation National Law (Qld) (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 and experience
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 – of a registered health practitioner of an equivalent level of training or experience; and
3. (c)
   conduct of the practitioner, with 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.

26. [26]
    The applicant submits that the respondent’s conduct falls within either limbs (a) or (c) of that definition. The applicant submits that the fact that her conduct was not during the performance of clinical duties does not prevent it being characterised as professional misconduct and refers to a number of decisions of this Tribunal and equivalent Tribunals in support of that submission.^[1] The applicant submits that the respondent’s conduct involved a considerable departure from appropriate professional standards. Her dishonest conduct was particularly serious because it was premeditated and deliberate deception of the regulatory body which was directly relevant to her right to be registered to practise as a pharmacist. Section 8.9 of the Pharmacy Board of Australia’s Code of Conduct specifically provides that practitioners ought not to misrepresent “by misstatement or omission, (their) experience, qualifications or position”.^[2]
27. [27]
    Cases such as Health Ombudsman v Blay^[3] and Medical Board of Australia v Anwar^[4] involved a practitioner relying upon a false document and making false representations. In Blay in particular, the practitioner’s conduct involved forging a signature and was an example of deliberate calculated dishonesty which is similar to the present case.
28. [28]
    From the receipt of the complaint from OHO, the respondent has cooperated with the regulators, including OHO, and has demonstrated remorse and insight. She also fully cooperated with the police. She has completed additional academic qualifications which will no doubt be relevant to the Board in the future, if and when it considers her application for registration.
29. [29]
    The respondent appropriately admits that her conduct was serious and involves a significant departure from the appropriate standards and amounts to professional misconduct. She has not sought to dispute or deny or to understate any of the allegations at the heart of the application.
30. [30]
    The Tribunal decides, pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

31. [31]
    Proceedings of this nature are protective. They are not punitive in nature. The paramount principle that informs the exercise of the Tribunal’s discretion to make orders by way of sanction against a health practitioner who has behaved in a way that constitutes professional misconduct, is the health and safety of the public.
32. [32]
    Prior to the conduct the subject of these proceedings, the respondent had no criminal or disciplinary history. It appears that she was motivated to engage in criminal conduct by a desire to remove herself from a stressful working environment which was having a negative impact on her mental health, during a period when she was experiencing family and medical issues.
33. [33]
    The applicant agrees that the respondent has demonstrated both remorse and insight into her conduct, in relation to both the disciplinary proceedings and the criminal proceedings, and her contact with the applicant’s investigators.
34. [34]
    By her own actions, the respondent has not been able to practise in her chosen profession for well over two and a-half years. Deterrence, both personal and general, can be met by the making of the following orders by way of sanction.

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
2. Pursuant to section 107(2)(b)(v) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent’s registration was improperly obtained because she gave to the Pharmacy Board of Australia, a document that was to her knowledge, false or misleading in a material particular.
3. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.
4. Pursuant to section 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
5. Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of six months from today’s date.