Health Ombudsman v Choi[2022] QCAT 268

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Tribunal has before it two Health Service complaints filed by the Applicant Director concerning the conduct of the respondent, a registered pharmacist at the time of the conduct the subject of the first referral and registered as a non-practicing pharmacist at the time of the second referral.
2. [2]
   The first referral relates to the respondent misappropriating Zolpidem (Stilnox) between November 2018 and January 2019 from the pharmacy at which he was then employed.
3. [3]
   On 11 January 2019, his theft of the drug was captured by the pharmacy’s CCTV cameras, which led to his convictions for one charge of stealing as a servant and one charge of unlawful possession of restricted drugs. The respondent failed to give written notification to the National Board of both the fact of him being charged with those offences and his eventual convictions, as required by section 130(1) of the Health Practitioner Regulation National Law (Qld) (National Law).
4. [4]
   The second referral relates to the respondent’s attempt to obtain Stilnox from a pharmacy with a forged repeat script on 4 November 2020. He was subsequently convicted on 17 May 2021 of one count of attempted fraud.

Background

5. [5]
   The respondent was born on 2 June 1982, so is now 40 years old. He obtained a Bachelor of Pharmacy from James Cook University in 2011. He was registered as a pharmacist with the Pharmacy Board of Australia (the Board) on 30 December 2011.
6. [6]
   After notification to the Health Ombudsman Office by his employer of his conduct in relation to the first referral and a referral to Ahpra of his health impairment on 30 April 2019, the Board accepted the respondent’s undertaking not to practice as a pharmacist. On 9 June 2020, the respondent surrendered his general registration and transferred to non-practicing registration.

The Relevant Facts

First Referral

7. [7]
   During December 2018 and January 2019, the respondent took one to two boxes of Zolpidem per week from the pharmacy at which he worked; the Chemist Warehouse at Acacia Ridge (allegation 2).
8. [8]
   The medication was kept behind the pharmacy counter and could only be accessed by staff members. Zolpidem is a schedule 4 drug for which a prescription is required for dispensation and is sometimes sold under the name Stilnox.
9. [9]
   Stocktakes revealed discrepancies in relation to this medication, prompting the installation of CCTV cameras. These cameras captured footage of the respondent taking one box of Stilnox on 11 January 2019 without authorisation.
10. [10]
    On 25 January 2019, he participated in an interview with his manager and admitted stealing the box of Stilnox on 11 January 2019, and to have taken the drug on other occasions. He was dismissed from his employment.
11. [11]
    A complaint was made to police. The respondent declined to be interviewed by them. After being charged by police with two charges on 20 April 2019, the respondent failed to give the Board written notice of that event within seven days of its occurrence (allegation 3).
12. [12]
    On 28 May 2019, the respondent appeared in the Richlands Magistrates Court and pleaded guilty to one charge of stealing as a servant, and one charge of unlawful possession of a restricted drug. He was convicted of both charges (allegation 1), fined $500, and ordered to pay restitution of $15. Convictions were not recorded.
13. [13]
    The respondent failed to give the Board written notice of his convictions within seven days of their occurrence, which forms part of allegation 4 in the first referral.

Second Referral

14. [14]
    On 4 November 2020, at a time when the respondent was a non-practicing registrant, he attempted to obtain Stilnox from the Forest Lake Discount Drug Store by presenting a forged repeat script to a pharmacist. The pharmacist noted discrepancies in the script and challenged the respondent. The pharmacist asked him if he was addicted to the drug, to which he replied he was not.
15. [15]
    On 17 May 2021, the respondent pleaded guilty to, and was convicted of, one count of attempted fraud in the Magistrates Court at Richlands. He was fined the sum of $900, and a conviction was recorded. Initially in statements of agreed facts filed in relation to both referrals, the respondent admitted all relevant facts. However, at that point he was disputing allegation 4 in the first referral. The argument made on his behalf by his lawyer was a technical one of statutory interpretation, which, by his submission filed on 1 June 2022 he has abandoned.

Characterisation

16. [16]
    Clearly, the respondent has satisfied the onus upon it to prove the conduct, the subject of the allegations in both referrals, in that the respondent now admits to all the facts. Clearly his behaviour constitutes unprofessional conduct which is defined in section 5 of the National Law in subparagraph (c) as including, “The conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practice the profession.”
17. [17]
    Cases such as Health Ombudsman v Blay [2019] QCAT 346 are authority for the proposition that even when the conduct (as in relation to the attempted fraud the subject of the second referral) was not relating to the respondent’s clinical practice, it can and in this case, should be characterised as unprofessional conduct.
18. [18]
    In relation to that allegation, this conclusion is justified because the respondent was not practicing at the time pursuant to his undertaking, but used his knowledge of pharmacy practices to attempt to obtain the Stilnox albeit unsuccessfully because of the alertness of the dispensing pharmacist. This proposition is also supported by the terms of the Code of Conduct for Pharmacists (the Code).
19. [19]
    Tribunals such as this, and equivalent Tribunals and Commissions in other States have stressed the importance of honesty as being a fundamental component of professional ethics and practice.
20. [20]
    The Code, which is admissible in these proceedings in relation to what constitutes proper professional behaviour pursuant to section 41 of the National Law, is replete with references to the need for practitioners to act in accordance with the law and to act in an ethical and trustworthy manner.
21. [21]
    The relevant features of the respondents conduct demonstrating it was substantially below the expected standard include:

    1. (a)
       the serious nature of the dishonest conduct itself which is demonstrated by a clear breach in relation to the first referral, of the trust re-opposed in the respondent by his employer;
    2. (b)
       the duration of the dishonesty involved in allegations 1 and 2 of the first referral occurring over a period of several months demonstrating that it was not an isolated incident or a mere error of judgment;
    3. (c)
       the persistent and continuing nature of the dishonesty, involving the misappropriation of one or two boxes of zolpidem every week for several months and the recidivism involved in the commission of the offence of attempted fraud on 4 November 2020, some 18 months after his convictions on 28 May 2019;
    4. (d)
       the extent and seriousness of the departure from the required standard of conduct as demonstrated by his breach of many provisions of the Code;
    5. (e)
       the respondent’s disregard for the dispensing process central to the pharmacy profession; and
    6. (f)
       the respondent did not cease his dishonest conduct of his own accord; it was discovered, and it would likely have continued but for that discovery.
22. [22]
    The cases referred to by Mr Price in his submission such as Health Ombudsman v Antley [2016] QCAT 472, Health Ombudsman v DKJ [2020] QCAT 268, and Health Ombudsman v Bassmann [2020] QCAT 395, all support his submission that the conduct of the respondent here, viewed cumulatively (and/or in relation to the commission of the offences) fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The respondent in his submission acknowledges the correctness of that proposition.
23. [23]
    The Tribunal finds that the respondent has engaged in conduct that constitutes professional misconduct as defined in both limbs (a) and (b) of the definition of that concept in section 5 of the National Law.

Health Impairment

24. [24]
    On 23 March 2019, the Office of the Health Ombudsman (OHO) referred a possible health impairment to Ahpra. Ahpra required the respondent to undergo a health assessment by Dr Nigel Prior who is a clinical psychiatrist. The respondent saw Dr Prior on 26 June 2019. Dr Prior has provided a number of reports which are in the hearing brief.
25. [25]
    In his report dated 8 July 2019, Dr Prior stated that the respondent showed evidence of a Substance Use Disorder (hypnotics – in early remission). The respondent had experienced some anxiety and insomnia in his work as a pharmacist, and began to manage this with prescriptions of Stilnox obtained lawfully through his general practitioner. The respondent escalated his intake of Stilnox to the degree that he became dependent upon it and began misappropriating boxes of the medicine from his workplace. The respondent estimated that he increased his use of Stilnox to 30 to 50 milligrams daily before his conduct was discovered and he was dismissed from his employment in January 2019.
26. [26]
    Dr Prior considered that the respondent had a Substance Use Disorder (hypnotics) which detrimentally affects or is likely to detrimentally affect his capacity to practice the profession. Given the severity of the respondent’s addictive behaviour, Dr Prior considered that the respondent required conditions upon his registration, and that he was not ready to return to work. He did not consider that the respondent’s anxiety amounted to an adjustment disorder.
27. [27]
    On 19 November 2019, Dr Prior provided a further supplementary report. He noted that the respondent’s medical records indicated that he had continued to use Stilnox since the date of Dr Prior’s assessment of him on 26 June 2019, despite his assertion at that assessment that he had not used any Stilnox for the previous three weeks. However, records indicated that from 10 June to 20 September 2019, the respondent had been taking an average of Stilnox 25 milligrams per day. Dr Prior considered that the respondent continued to suffer the same condition of a Substance Use Disorder (hypnotics), that he appeared to be continuing in his abuse of Stilnox, and that he remained unfit to practice as a pharmacist until he addressed his condition and was abstinent of hypnotics.
28. [28]
    The respondent’s engagement with the Ahpra health assessment program ceased upon his transfer to non-practicing registration on 9 June 2020.
29. [29]
    In the police brief in the hearing brief, it is alleged that when asked by the pharmacist, that is the complainant in the offence committed the subject of the second referral, if he had a drug problem, the respondent denied that he did.
30. [30]
    The transcript of the proceedings in the Richlands Magistrates Court brief as it is before the Tribunal. He was represented by a solicitor who told the magistrate that the respondent had, as at 17 May 2021, a chronic sleep insomnia problem and suffered from anxiety and has “been seeing a psychiatrist every six weeks at the Apollo Centre”. No report was tendered before the magistrate.
31. [31]
    Recently, as in yesterday, the Tribunal was provided with a report of Dr Randhawa, a consultant psychiatrist who works out of the Apollo Specialist Centre at Springwood dated 14 May 2021 and reference will be made to the contents of that report in relation to the issue of sanction.

Sanction

32. [32]
    The purpose of proceedings such as this is to protect not to punish. The main principle for administering the Health Ombudsman Act 2013 (HO Act), and the main consideration that underpins the discretion of this Tribunal to sanction practitioners who have engaged in unprofessional conduct is that the health and safety of the public are paramount. The appropriate sanction is to be considered at the time of determination, not the date of the conduct.
33. [33]
    In deciding the appropriate sanction in a particular case, the Tribunal will consider factors including:

    1. (a)
       the nature and seriousness of the practitioner’s conduct.
    2. (b)
       insight and remorse shown by the practitioner.
    3. (c)
       the need for specific and general deterrence.
    4. (d)
       evidence of rehabilitation or steps taken by the practitioner to prevent reoccurrence of the conduct.
    5. (e)
       matters giving context to or an explanation for the conduct for example mental health issues although such issues can be two-edged.
    6. (f)
       Other matters that may be regarded as aggravating or mitigating circumstances, including past disciplinary or criminal history; character evidence, periods of preclusion or non-practice; delay and the effluxion of time; and cooperation during criminal and/or disciplinary proceedings.
34. [34]
    Any sanction then may serve one or more of various purposes including:

    1. (a)
       preventing practitioners who are unfit to practice from practicing.
    2. (b)
       securing the maintenance of professional standards.
    3. (c)
       assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct or unprofessional conduct will not be tolerated.
    4. (d)
       bringing home to the practitioner the seriousness of his or her conduct.
    5. (e)
       deterring the practitioner from any future departures from appropriate standards.
    6. (f)
       deterring other members of the profession who might be minded to act in a similar way.
    7. (g)
       imposing restrictions on the practitioner’s right to practice so as to ensure that the public is protected.
35. [35]
    As noted above and for the reasons there set out, the respondent’s conduct here was serious and involved recidivist offending.
36. [36]
    In relation to the issue of insight and remorse, the respondent has cooperated with these proceedings by admitting all allegations, albeit lately in relation to allegation 4 in relation to the first referral. He also made admissions in relation to the first bout of offending to his pharmacist manager. He pleaded guilty to the charges the subject of allegation 1.
37. [37]
    In respect of the second referral, he pleaded guilty to the offence after making full admissions to the police. He has made full admissions in relation to the allegation in relation to the second referral; and that his conduct constitutes professional misconduct.
38. [38]
    As the applicant observes in its submission, the respondent’s conduct here is related to his mental health condition. The applicant submits that the respondent has demonstrated insight, given that upon recognising that his mental health was affecting the practice of his profession he provided an undertaking not to practice as a pharmacist, which was accepted by the Board on 30 April 2019, and that since 9 June 2020 he has held non-practicing registration.
39. [39]
    In relation to issues such as deterrence and maintenance of public confidence in the profession, it is relevant that the respondent has now voluntarily spent a significant period away from practice due to his health. He has not practiced for almost three years when the Board accepted his undertaking not to practice as a pharmacist.
40. [40]
    General deterrence is an important factor to take into account in this case. Any sanction should be sufficient to deter other practitioners from engaging in similar conduct. Offences of dishonesty particularly those involving the theft or misappropriation of medication particularly from a professional’s workplace are inimical to the practice of pharmacy.
41. [41]
    I agree with the submission made by the applicant that deterrence in this case would be best achieved by the recording of a reprimand against the respondent’s registration.
42. [42]
    As has often been said in Tribunals such as this, a reprimand is not a trivial penalty. It is a public denunciation of the respondent’s conduct and a matter of public record. It will be recorded on the register until such times as the Board considers it appropriate to remove it.
43. [43]
    In a submission made by the respondent’s solicitor yesterday, by reference to the case of Health Ombudsman v HNH [2021] QCAT 235, the solicitor submits that an application of the ordinary policy in this case would be punitive. The respondent, therefore, submits that the Tribunal recommend to the Board that the reprimand be lifted on 5 April 2024. The Tribunal has no power to set an earlier publication end date for a reprimand on the register: Health Ombudsman v Gillespie [2021] QCAT 54 at [49] and [50].
44. [44]
    As was stated by the Tribunal in Health Ombudsman v HNH:^[1]

The Tribunal has no power to make any order as to how long the reprimand of the respondent remains recorded on the register. That is a decision for the Board. However, there is no prohibition on the Tribunal expressing a view on such matter, providing it is clear that the ultimate determination of such matter remains solely a matter for the Board. The Tribunal has previously done so in appropriate cases.

45. [45]
    The Tribunal made such a recommendation in HNH. In my view, the significant feature that is absent here, is up to date information about the nature of the respondent’s health impairment. Dr Prior recommended in his earlier report, that the respondent consult a general practitioner and be referred to a psychiatrist and a psychologist, to assist him in dealing with his health impairment. As noted earlier, yesterday the Tribunal received a report from Dr Rendhawa, dated 14 May 2021. The solicitor accepted responsibility for not forwarding that report to the Tribunal until yesterday.
46. [46]
    What is clear from that report is that the last clinical assessment of the respondent by the doctor occurred on 28 April 2021. At that stage, the doctor expressed the opinion that the respondent was suffering from an Insomnia Disorder and Substance Use Disorder (hypnotics). The psychiatrist noted that the respondent’s engagement in treatment had been sporadic. The doctor’s opinion was that the respondent was in the early stage of remission of his Substance Abuse Disorder at that time, namely 28 April 2021, referring to a clear urine test on 12 March 2021. It is clear from the contents of that report that the psychiatrist was not aware of the respondent’s offending, the subject of the second referral, which occurred on 13 October 2020, when he was a non-practising pharmacist.
47. [47]
    The respondent’s solicitor has filed an affidavit referring to many failed attempts to get an up-to-date report from the psychiatrist in very recent times. It is surprising to the Tribunal that if, indeed, the respondent has been treated by the psychiatrist since 28 April 2021, that matter would not have been addressed at a much earlier stage, than just prior to these proceedings.
48. [48]
    There is, of course, no statement or affidavit from the respondent referring to what steps he has taken since his last consultation with the doctor to address his health impairment. That leaves the Tribunal in a position, in relation to issues such as insight, where it cannot say, at the present time, what steps or what treatment the respondent is undertaking with a view to addressing his health impairment.
49. [49]
    As Mr Prior fairly submits, any further preclusion from practice, now, would be punitive, given that he has been precluded, now, from practice, for over three years. As he notes, the risk the respondent poses to the community is inextricably linked to his medical condition. That will undoubtedly be a matter that the Board will address, if the respondent does attempt to return to general registration because he will need the permission of the Board to do so.
50. [50]
    The cases referred to above and, in particular, DKJ, support the approach suggested by Mr Prior and, indeed, apart from the proposed recommendation to the Board about the date of the reprimand, which I have rejected, the respondent’s solicitor agrees with the sanction proposed. In those circumstances, the findings and orders of the Tribunal are as follows:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct;

2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013, the respondent is reprimanded; and
3. Each party much bear their own costs of the proceedings.