Health Ombudsman v Stibbard[2022] QCAT 93

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, she dispensed schedule 4 medication without a prescription or in a greater quantity than as prescribed, that she falsified dispensing records to conceal this, and that she issued false repeat authorizations. 
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.  The applicant provided written submissions to the Tribunal.  The solicitors for the respondent have advised the Tribunal that she does not oppose the sanction sought by the applicant. 

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 1979 and is now 43.  She was first registered as a pharmacist in July 2007.  From 2010 to March 2016 she worked as a pharmacist in a provincial city.  While working there, between February 2015 and April 2016 she dispensed to herself Schedule 4 drugs without a prescription on 8 occasions, more drugs than was authorized by a valid prescription on 5 occasions, and once on a repeat authorized when the prescription did not authorize a repeat.
5. [5]
   As well, during the same period the respondent dispensed to 8 other people Schedule 4 drugs, without a prescription on 61 occasions, and in amounts in excess of those prescribed on 3 occasions, overall.  Each instance was contrary to the Guidelines for Dispensing Medicines current at the time, and contrary to accepted professional standards.  All of this was covered by allegation 1. 
6. [6]
   Allegation 2 was that, in respect of the medication dispensed to herself, she knowingly created false entries in the records of the pharmacy, contrary to the applicable regulation.  Allegation 3 was that, during the same period, she generated repeat authorisations on 8 occasions for herself or another person when there was no original prescription, and on three occasions for herself or another person when the original prescription did not authorize repeats. 
7. [7]
   Full particulars of each of the occasions covered by these allegations are set out in the statement of agreed facts, and all of this conduct was admitted by the respondent.
8. [8]
   In July 2017 the applicant began to investigate the respondent.  In August 2017 the respondent was interviewed by the investigators of the applicant.  In December 2017 the Pharmacy Board required the respondent to undergo a health assessment.  On 21 February 2019 the Board formed a reasonable belief that the respondent suffered from an impairment, opioid use disorder, and imposed conditions on her registration, limiting self-dispensing, undergoing treatment, and requiring reports from a senior person at the pharmacy at which she worked, which remain in place.  Presumably she has continued in employment as a pharmacist. 

Characterisation of conduct

9. [9]
   The applicant submitted that collectively the allegations amounted to professional misconduct, and relied on the serious breach of trust as an employee in a responsible position, and of her obligations in relation to the proper dispensing of medication in schedule 4, which she owed to the community.  This involved breaches of the Guidelines, and of the Code of Conduct for Pharmacists, issued by the Pharmacy Board.  The applicant submitted that it met the definition of professional misconduct in the National Law. 
10. [10]
    The respondent admitted that she 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 amended schedule to the referral was unprofessional conduct substantially below the standard reasonably expected of a registered health practitioner of her level of training and experience.  That is consistent with the finding in earlier matters.^[2] 

Sanction

11. [11]
    In imposing a sanction, the health and safety of the public are paramount.^[3] Disciplinary proceedings are protective, not punitive in nature.^[4] Relevant considerations generally include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.^[5] Insight and remorse on the part of the respondent are also relevant.^[6]  The fitness to practice of the respondent is to be assessed at the time of the hearing.^[7]  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]. 
12. [12]
    The parties are agreed that the respondent should be reprimanded, that her registration should be suspended for a period of four months, and that conditions should be imposed on the registration of the respondent, for a period of mentoring, for completing a specified course in ethics and dispensing in pharmacies (or, if not available, another similar course approved by the Board) and that the respondent should pay the applicant’s costs of the application, fixed in the sum of $3,000.  The parties were originally not agreed about the duration and frequency of the mentoring.  The respondent now does not oppose what is sought by the applicant, mentoring of two hours per month for the twelve months after the lifting of the suspension.  Hence now all elements of the sanction are agreed. 
13. [13]
    This is similar to the position where there is a joint submission as to sanction.  The effect of this was discussed in Medical Board of Australia v Martin [2013] QCAT 375 at [91] – [93], in terms with which I respectfully agree.  The relevant conduct in the present case was extensive, and persisted for some time.  There is some evidence that unprescribed schedule 4 medication was offered by the respondent to some people.  In the present case, although there is some evidence of an impairment, there is no information available about the connection between that and the relevant conduct.   Most of the medications dispensed to herself were not opioids, and this does not explain her dispensing medications to others.  Apart from her cooperation in this proceeding, there is no evidence of insight or remorse.  There was no cooperation at the time of the investigation.  General deterrence and maintaining professional standards are also important.  A more significant sanction than in Dalziel (supra) is therefore appropriate, but the decisions indicate that the proposed sanction is reasonable.  I will not depart from it. 
14. [14]
    In relation to costs, they are not usually awarded in matters when the practitioner has cooperated in the proceeding.  They are governed by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(1), and the question is whether the interest of justice require such an order.  In view of the significance of the agreement of the parties, as discussed in Martin (supra) I consider that in the present case the existence of the agreement of which an order for costs is an integral part renders such an order in the interests of justice. 
15. [15]
    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 amended annexure to the referral amounted collectively to professional misconduct.
2. The respondent is reprimanded.
3. The registration of the respondent is suspended for a period of four months, to commence on 10 April 2022. 
4. The following conditions are imposed on the registration of the respondent, to take effect from 10 August 2022: 
   1. (a)
      The respondent must undergo a period of mentoring for at least two hours each month for a period of twelve months. 
   2. (b)
      The mentoring must be face to face and focus on ethical dispensing and decision-making.
   3. (c)
      The respondent must nominate, for approval by the Pharmacy Board of Australia, a mentor who must be a pharmacist practicing in an accredited pharmacy and senior to the respondent in age and experience.  The mentor must provide a written report to the Board every three months and upon completion of the mentoring period. 
   4. (d)
      The respondent must, within twelve months from these conditions taking effect, complete (and achieve at least a pass mark for) the course Ethics and Dispensing in Pharmacy Practice (Units 1 through 4) run by the Pharmaceutical Society of Australia or, if such course is not available, another similar course approved by the Board.  At the completion of the course, the respondent must submit to the Board documentary evidence certifying her completion of it. 
   5. (e)
      The respondent is responsible for paying all costs associated with compliance with these conditions. 
5. The National Law Part 7 Division 11 Subdivision 2 applies to the conditions, and the review period is 16 Months from 10 April 2022.
6. The respondent must pay the applicant’s costs of the application, fixed at $3,000.