Health Ombudsman v FYJ[2022] QCAT 92

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013 (Qld) s 103(1)(a), s 104.  In accordance with the Act I am sitting with assessors Ms H Uren, Mr M Lock and Mrs P Hall.^[1] 
2. [2]
   The respondent is and was at the relevant times a registered pharmacist, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld). The applicant alleges that the respondent engaged in professional misconduct in that, while registered, he took a large quantity of schedule 8 medication from his employer over a period of time. 
3. [3]
   The parties have provided the Tribunal with a statement of agreed facts.  The respondent, who has been legally represented in this proceeding, admits the facts in that statement.  Each party has provided written submissions to the Tribunal, and made oral submissions during a hearing by videolink. 

Background

4. [4]
   The Tribunal accepts the facts set out in the agreed statement of facts.  They, and some additional information before the Tribunal, may be summarised as follows:  The respondent was born in 1981 and is now 40.  He was first registered as a pharmacist in November 2003.  Prior to November 2018 he worked at a number of pharmacies, the last being in a provincial city, where he was the manager of the store.  On 19 November 2018 that employment came to an end as a result of the relevant conduct. 
5. [5]
   A few days before, analysis of the store’s records indicated that a significant quantity of schedule 8 medication had been taken.  Investigations revealed that 29,000 Ritalin and 3,600 Artige tablets had been taken between June 2014 and 15 November 2018.  When confronted by his employer, the respondent admitted taking these tablets.  He had sought to conceal this by under-reporting the amount of these tablets delivered by suppliers to the store on 91 occasions, creating false prescriptions in the drug register on 67 occasions, and inflating the amount dispensed to customers on 82 occasions.  The tablets were taken for his own use, which involved self-medication and meant that he was affected by the drug while working, although there is no evidence that any person suffered actual harm as a result.  The employer did not pursue criminal charges. 
6. [6]
   The matter was reported to the applicant and referred to AHPRA who on 20 December 2018 accepted an undertaking from the respondent not to practise.^[2]  On 4 March 2019 the Queensland Health Medicines Compliance and Human Tissue Unit by notice cancelled his scheduled drug endorsements.  That cancellation remains in place.  On 19 September 2019, AHPRA approved his practising subject to conditions it imposed, including limiting him to part time work, and drug testing conditions.  He has not yet obtained employment as a pharmacist, but he has a potential employer. 

Medical evidence

7. [7]
   A psychiatrist, Dr Prior, provided a health assessment to AHPRA on 14 February 2019.  He considered that the respondent had a substance abuse disorder and an adjustment disorder with mixed anxiety and depressed mood.  This arose in circumstances where he had a number of difficulties in his personal life, and was working long hours under pressure.  Dr Prior considered that the respondent had an impairment, and that he was then unfit to practice because of it, although he was in the early stages of remission, and with treatment and continued abstinence there were prospects of rehabilitation.  The focus of the report was on his fitness to practise at that time, but he did express the opinion that the respondent developed the adjustment disorder consequent upon multiple stressors in his life, and began to divert the medication to his own use in this context.^[3]  That led to the substance use disorder. 
8. [8]
   On 4 May 2019 the respondent’s treating psychiatrist provided a report in which he essentially agreed with Dr Prior’s diagnosis, although he said the adjustment disorder was in remission.  He said the respondent had engaged well with treatment, and had not been prescribed medication.  He thought that the respondent could return to some practice in a few months, with continued treatment and abstinence.  In a further report of 4 June 2019 Dr Prior agreed with that opinion, and considered that the return to practice could begin in two months.  The treating psychiatrist provided a further report on 7 August 2021, in which he noted that the difficulties in returning to the profession were worsening his depression, and he met the criteria for a major depressive episode.  He had been prescribed medication for his depression.
9. [9]
   On 19 November 2021 the treating psychiatrist provided a further report.  He confirmed his earlier opinion, and advised that the respondent completed a module of motivational counselling, making excellent progress, and worked on strategies to prevent relapse and to deal with stress.  Testing revealed continued abstinence from stimulants and other illicit drugs, and he considered the respondent ready to resume some work in late 2019.  The respondent found the conditions imposed on his registration difficult, and the difficulties he was facing caused him to become depressed, for which he was prescribed medication.  He was then suffering a major depressive disorder, caused by the prolonged absence from work and resulting financial distress, which was adversely affecting his mental state.  The psychiatrist also recommended a non-publication order to avoid endangering his mental health. 

Characterisation of conduct

10. [10]
    The applicant relied on three allegations, taking the medication from his employer, falsifying the records required to be maintained for Schedule 8 medication, and self-medicating without a prescription.  None is contentious.  The applicant submitted that collectively they amounted to professional misconduct, and relied on the serious breach of trust as an employee in a responsible position, and of his obligations in relation to the carefully handling of medication in the most dangerous category, which he owed to the community.  The applicant submitted that it met all three limbs of the definition of professional misconduct in the National Law. 
11. [11]
    The respondent conceded that he had behaved in a way that constituted professional misconduct.  In the circumstances, it is sufficient to find that the respondent’s conduct identified in the referral was unprofessional conduct substantially below the standard reasonably expected of a registered health practitioner of his level of training and experience.  That is consistent with the finding in earlier decisions.^[4] 

Sanction

12. [12]
    The applicant submitted in writing that the respondent should be reprimanded, and that the registration of the respondent should be suspended for a period of six to eighteen months.  At the hearing the applicant accepted that the time which had already passed away from the profession was within the range for a suspension, and did not press for a further suspension.  The respondent submitted that the period away from practice that had occurred already was sufficient sanction, and that no further suspension should be imposed; he did not oppose a reprimand. 
13. [13]
    In imposing a sanction, the health and safety of the public are paramount.^[5] Disciplinary proceedings are protective, not punitive in nature.^[6] Relevant considerations generally include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[7] Insight and remorse on the part of the respondent are also relevant.^[8]  The fitness to practise of the respondent is to be assessed at the time of the hearing.^[9]  A number of factors relevant or potentially relevant to sanction were identified in Nursing and Midwifery Board of Australia v Roe [2018] WASAT 92 at [55]. 
14. [14]
    At the time of the offending the respondent was suffering mental health problems, and to some extent the offending conduct occurred initially in an attempt to cope with his difficulties and the pressure of work.  Later he developed the substance abuse disorder, which led to further offending.  The former proved somewhat contentious at the hearing, when it was pointed out that the agreed facts included that the relevant conduct occurred between 29 June 2014 and 15 November 2018.^[10]  On the other hand, he told Dr Prior on 12 February 2019 that he was abusing the medication for approximately two years, escalating his intake to 20 tablets daily,^[11] and told his treating psychiatrist he began to take them in late 2017 to early 2018, and took up to fifteen per day.^[12] 
15. [15]
    It is agreed that the total number of tablets taken was 32,600.^[13]  Even at 20 per day, this covers a period of over four years, which suggests some minimisation of the offending conduct, although all these figures are only estimates.  I would expect an audit to extend back for some period before any false transactions turned up, to ensure that all were captured, and I would not treat the periods within which the relevant conduct occurred as implying that it started at the beginning of the period.  Dr Prior’s opinion was that the conduct arose in response to the adjustment disorder, which is plausible, even if some of the stressors arose or became more significant after the conduct began.  The position cannot be clarified without more material than is presently available, and on the material available I consider that I should proceed on the basis that the adjustment disorder preceded and contributed to the offending conduct. 
16. [16]
    In LCK v Health Ombudsman [2020] QCAT 316 I analysed the effect of psychiatric problems on sanction, and I adhere to that analysis.  One effect is that the involvement of mental health problems reduces the significance of general deterrence, which ordinarily would be a significant factor in a case of such behaviour.  In view of the evidence of improvement in his mental health, and the evidence of the psychiatrist, personal deterrence is not of great significance.  Also of importance are the maintenance of professional standards, and the maintenance of public confidence in the profession. 
17. [17]
    The applicant relied on six earlier decisions.  In Health Ombudsman v JSP [2020] QCAT 334 the practitioner had been taking scheduled and controlled drugs from his employer and self-administering them, and making false entries in the drug records.  This was discovered after he suffered an overdose of oxycodone.  He lost his employment, was charged with and pleaded guilty to a number of offences, and surrendered his registration.  By the time of the hearing he had benefitted from treatment and was pursuing a career in another field.  The Tribunal considered that in view of the time he had been away from the profession, about three and a half years, no period of disqualification was required. 
18. [18]
    In Health Ombudsman v FYD [2020] QCAT 168 the practitioner stole medication from his employer and covered his tracks by falsifying the records of the pharmacy, for over two years.  This involved taking opiates or amphetamines, for his own use.  He lost his employment, and was prosecuted and pleaded guilty.  His registration was suspended soon after the offending was discovered, and he had not worked as a pharmacist since he lost the position, although the suspension had been lifted after less than 1 year, and he was no longer registered.  He was making good progress with his treatment, but was still on opiate replacement medication, and required further treatment.  He was reprimanded, and a preclusion period of four years from when he ceased to work as a pharmacist was imposed.  The respondent submitted that his current circumstances were more promising than those of FYD, and that that supported a shorter period away from the profession. 
19. [19]
    In Health Ombudsman v DeCelis [2019] QCAT 140, a pharmacist obtained cocaine for his own use by ordering it for his employer’s pharmacy without any legitimate justification, altering records to cover his tracks. This occurred on a number of occasions over seven months and stopped when the respondent disclosed his conduct, quit his job and sought treatment. He did not disclose to the board that he was charged with offences, but did not renew his registration as a pharmacist, so that he had not been registered for over three years, a factor the Tribunal considered important.  A finding of professional misconduct was made and the respondent was reprimanded, but no preclusion period was imposed.
20. [20]
    In Pharmacy Board of Australia v Christie [2016] QCAT 291, a pharmacist had, on a number of occasions over a number of years, obtained various controlled, restricted and addictive drugs, including from his employer, by dishonest means, such as creating fictitious transactions. He had had a longstanding problem with the misuse of prescription and other drugs, had already been dealt with in a criminal court, had allowed his registration to lapse, and obtained employment in a different field. He was reprimanded, disqualified from applying for registration for a period of three years on top of two and a half years away from the profession, and ordered to pay $12,000 costs to the board.  The Hon J B Thomas QC, who constituted the Tribunal, took into account the time the practitioner had already been away from the profession.^[14] 
21. [21]
    In the present case, the medication taken was Schedule 8 medication, subject to the most rigorous control, and where the responsibility of the pharmacist is greatest.  The conduct was extensive, and persisted for a significant time, but because of hair testing there is good reason to think that since it was discovered the respondent has stopped using these tablets.  He has engaged with treatment, his mental state has considerably improved, and AHPRA is satisfied he is fit to return to practice, subject to conditions.  In addition, he has not regained his endorsements to dispense scheduled drugs, so for a time he will have to practice in the company of another pharmacist.  That will also provide some protection for the public. 
22. [22]
    There has been good cooperation with the investigation of the conduct, and in this proceeding, and he has shown remorse and insight.  Continuing abstinence has been shown by a series of tests of hair.  As well, one of the significant personal difficulties which contributed to his psychiatric problems and to the offending has since been removed.  On the other hand, there is evidence that a further period away from the profession would be damaging to his mental health, and hence potentially damaging to his rehabilitation. 
23. [23]
    The respondent has now been away from the profession for three years and over four months.  In all the circumstances, I consider that the health and safety of the public have been adequately protected by that period away from the profession, and that any further suspension of his registration is not appropriate. 
24. [24]
    The respondent seeks a non-publication order.  Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(1)(c) a non-publication order can be made to avoid endangering the mental health of a person, or otherwise in the interests of justice.^[15]  There is evidence that publication of this matter would risk endangering the mental health of the respondent, although the evidence is somewhat thin.  As well, there was a close association between an aspect of the impairment of the respondent and the relevant conduct, and in view of the statutory provisions for confidentiality in impairment matters, it is often appropriate to make a non-publication order in such matters.^[16] In all the circumstances, bearing in mind the promising signs of rehabilitation of the respondent, I consider that such an order should be made in this case. 
25. [25]
    I acknowledge the assistance of the assessors in this matter.  The decision of the Tribunal is as follows: 

1. The Tribunal decides that the conduct of the respondent set out in the referral amounted collectively to professional misconduct.
2. The respondent is reprimanded.
3. Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication is prohibited of:
   1. the contents of any document or thing produced to the Tribunal; and
   2. the orders made and reasons given by the Tribunal; and
   3. evidence before the Tribunal

to the extent that it could identify, or lead to the identification of the respondent, any family member of the respondent, any professional colleagues of the respondent, any victim of the respondent's offending, save as is necessary for the parties to engage in this proceeding or any appeal therefrom, or for the applicant to advise AHPRA of the outcome of this proceeding. 

4. There be no order as to costs.