Pharmacy Board of Australia v CJR
[2023] QCAT 561
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- Unreported Judgment
- Pharmacy Board of Australia v CJR[2023] QCAT 561
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Pharmacy Board of Australia v CJR[2023] QCAT 561
Pharmacy Board of Australia v CJR[2023] QCAT 561
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Pharmacy Board of Australia v CJR [2023] QCAT 561 |
PARTIES: | pharmacy board of australia (applicant) v CJR (respondent) |
APPLICATION NO/S: | OCR255-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 31 August 2023 (ex tempore) |
HEARING DATE: | 31 August 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Robertson Assisted by: Ms Feeney (Cochrane), Pharmacist Panel Member Mr Lock, Pharmacist Panel Member Dr Griggs, Public Panel Member |
ORDERS: |
is prohibited to the extent that it could identify or lead to the identification of:
save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings or any appeal arising from these proceedings and for the Pharmacy Board of Australia to provide information to the Office of the Health Ombudsman in the exercise of the Board’s functions under the Health Practitioner Regulation National Law (Queensland).
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the respondent dispensed medications to himself, under four different names, for his own use – where the respondent misrepresented that the medication had been legitimately dispensed in dispensing entries – where the respondent pleaded guilty to, and was convicted of, dishonestly gaining a benefit for himself as an employee – where the respondent deliberately attempted to mislead the Board by alleging that one of the participants the subject of the unlawful dispensing was a real person when the person was fictional – where the respondent has not practised since 2015 – where the parties agree as to characterisation and sanction Criminal Code Act 1899 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Health Ombudsman v Choi [2022] QCAT 268 Health Ombudsman v DKJ [2020] QCAT 268 Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Medical Board of Australia v Arulanandarajah (Review and Regulation) [2021] VCAT 85 Medical Board of Australia v Cukier [2017] VCAT 109 Medical Board of Australia v Wong [2015] QCAT 439 Psychology Board of Australia v Shahinper [2016] QCAT 259 |
APPEARANCES & REPRESENTATION: | |
Applicant: | S Robb instructed by King & Wood Mallesons |
Respondent: | L Nixon, solicitor of Turks Legal |
REASONS FOR DECISION
- [1]On 28 September 2022, the Pharmacy Board of Australia (‘Board’) referred two allegations to the Tribunal concerning the respondent’s conduct as a registered pharmacist. The admitted conduct occurred between November 2014 and about April 2015 when the respondent was working as a locum pharmacist at the Stradbroke Pharmacy and on or about 17 June 2015 when he was suspended from practice and under investigation by the Australia Health Professional Regulation Authority (‘Ahpra’).
- [2]The parties have filed an agreed statement of facts. There are no factual issues in dispute.
- [3]The parties also agree that the relevant conduct constitutes professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) and that the appropriate sanction is a reprimand. An argument is advanced by the respondent’s lawyer that her client’s conduct should be characterised as professional misconduct under the first limb of the section 5 definition and not under the first and third limb of the definition as submitted by the Board.
The relevant factual background
- [4]The respondent was born on 27 April 1990, so is now 33 years of age. He was awarded a Bachelor of Pharmacy from QUT with first-class Honours in December 2012. He obtained general registration as a pharmacist with the Board on 29 November 2013. On 25 September 2015, the Board took immediate action pursuant to section 156(1)(a) of the National Law, essentially as a result of a confidential notification to the Office of the Health Ombudsman which related generally to the respondent’s conduct as outlined below under the heading ‘Allegation 1’.
- [5]The Board imposed conditions on the respondent’s registration. On 30 November 2015, his registration lapsed. He has not practised as a pharmacist since around April 2015.
- [6]He applied for registration to the Board on 29 November 2018. That application was refused by the board on 16 March 2021. At the time, the Board’s decision indicated that it reasonably believed that the respondent was not a fit and proper person to be registered and found that no conditions could remediate that belief.
Allegation 1
- [7]The details of this allegation as set out in the statement of agreed facts is fairly summarised by Ms Robb in her written submissions:
Between November 2014 and April 2015, the respondent dispensed scheduled and unscheduled medication to himself at the Stradbroke Pharmacy under four names (one being his). He dispensed the medication for his own use. He further misrepresented that the medication had been legitimately dispensed in dispensing entries. The conduct was unlawful in that it was in breach of [a number of the] Health (Drugs and Poisons) Regulation 1996 [(‘Regulations’)]. The conduct was inconsistent with the Board’s “Code of conduct for pharmacists” [(‘Code of Conduct’)] and the “Guidelines for dispensing of medicines” [(‘Guidelines’)], and with the Pharmaceutical Society of Australia’s “Code of ethics for pharmacists” [(‘Code of Ethics’)].
- [8]Predominantly, the drugs dispensed were a mixture of anabolic steroids, stimulants and antidepressant medication for the respondent’s own use.
- [9]It is not in issue that, at the time, he was suffering from untreated bipolar disorder with substance abuse disorders in relation to steroids and stimulants.
- [10]In relation to this conduct or aspects of it, on 24 June 2021, the respondent was convicted on his own plea of guilty of one count of dishonestly gaining a benefit for himself as an employee (between 25 January 2014 and 14 April 2015 at Dunwich), which is a breach of section 408C(1)(d) and (2)(b) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’). He was ordered to perform unpaid community service, and the Magistrate did not record a conviction.
Allegation 2
- [11]On 17 June 2015, in a submission to Ahpra which was then investigating the matters the subject of allegation 1, the respondent deliberately attempted to mislead the investigator by alleging that one of the participants the subject of the unlawful dispensing was a real person whereas, in fact, the person was fictional.
Characterisation
- [12]The respondent accepts that his admitted conduct breached the Regulations and was inconsistent with the Board’s Guidelines, the Code of Conduct and the Code of Ethics. In relation to these latter instruments, their provisions constitute admissible evidence as to what constitutes proper professional conduct in the health care profession pursuant to section 41 of the National Law.
- [13]There is no argument the respondent’s admitted conduct constitutes professional misconduct as defined in the first limb of section 5(a) of the National Law, namely:
- 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 or experience.
- [14]Each party has referred the Tribunal to a number of comparable cases on the issue of characterisation and, as is always the case, none are directly analogous. However, cases such as the Health Ombudsman v Choi (‘Choi’)[1] and Health Ombudsman v DKJ (‘DKJ’)[2] amply demonstrate the correctness of the joint submission that the admitted conduct constitutes professional misconduct as defined in the first limb of the section 5 definition in the National Law.
- [15]The argument advanced by Mr Forbes, who wrote the submission before the Tribunal and orally supported by Ms Nixon who appears for the respondent this morning, is that the respondent’s admitted conduct is not caught by the definition of professional misconduct set out in section 5(c) of the National Law, which is in these terms:
- conduct of the practitioner, whether 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.
- [16]The argument is essentially one involving principles of statutory construction based on some obiter remarks of the then Deputy President of the Tribunal, His Honour Judge Horneman-Wren SC in Medical Board of Australia v Wong (‘Wong’),[3] and some extracts from a Victorian Civil and Administrative Tribunal (‘VCAT’) decision in Medical Board of Australia v Cukier (‘Cukier’),[4] as set out in the written outline.
- [17]A number of things can be said about these references. In Wong, the Deputy President was dealing with a case in which the Board did not seek a finding of professional misconduct. Rather, it sought, and obtained, an order pursuant to section 196(b)(iv) of the National Law to the effect that Dr Wong had an impairment. His Honour’s discussion about section 5(c) related to the Board’s submission that upon making the decision that Dr Wong had an impairment, the Tribunal should then cancel his registration, which the Tribunal refused to do so. To the extent to which His Honour’s comments in Wong amount to a finding that for a national board to succeed in proving professional misconduct under the third limb of the definition of the National Law, the Board must prove that the practitioner was not a fit and proper person to hold registration in the profession at the time of the hearing, I respectfully disagree.
- [18]The decision in Cukier, upon which the respondent relies, has clearly been overtaken by the later decision of Medical Board of Australia v Arulanandarajah (Review and Regulation) (‘Arulanandarajah’).[5] Arulanandarajah held that the assessment of whether a person is ‘a fit and proper person to hold registration’ as a function of characterisation should be undertaken by reference to the time at which the conduct occurred.
- [19]It does not follow that a finding of professional misconduct under the third limb is a finding that the practitioner is not a fit and proper person to hold registration at the time of the hearing. The Board in this case makes no submission and there is no basis in the material to make such a submission.
- [20]I agree with Ms Robb’s submission that the question of whether or not a practitioner is a fit and proper person to hold registration at the time of the hearing may be raised on the referral, including by reference to information in addition to the facts of the referred conduct. If the question arises, the subsequent inquiry is separate to the process of characterising the conduct under section 196(1)(b) of the National Law. It is undertaken in relation to determining the appropriate sanction, if any, to impose under section 196(2) of the National Law, having made a finding under section 196(1)(b).
- [21]The language used in the definition of professional misconduct at (c) distinguishes between the conduct by the practitioner and the practitioner themself. Further:[6]
[I]t allows for the possibility that while the conduct in and of itself may have indicated that the practitioner was unfit at the time when he acted in the way he did, that does not prevent him subsequently becoming a fit and proper person to hold registration during the period up until the Tribunal hearing.
- [22]The use of the present tense ‘is’ in the third limb of the definition was regarded by the Tribunal in Cukier as persuasive, but the present tense is also used in the definition in the first limb in section 5. The argument advanced on behalf of the respondent confuses the role of the Tribunal in first characterising the conduct and only then if a finding is made under section 196(1)(b) can the Tribunal turn to the consideration of sanction under section 196(2) of the National Law.
- [23]The conduct the subject of allegation 1 involved the respondent, then a pharmacist, inter alia unlawfully dispensing medication to himself and falsifying information in dispensing entries. The conduct the subject of allegation 2 involved the respondent deliberately attempting to mislead the regulator with respect to his conduct in unlawfully and/or inappropriately dispensing medication to himself.
- [24]By the conduct the subject of the allegation 1, the respondent took advantage of his employer and placed his employer in the invidious position of having to make notification about him. At the relevant time, the respondent was prepared to act outside his professional responsibilities with respect to dealing with prescription medication to serve his own desire to access medication he did not have valid prescriptions for.
- [25]In relation to both allegations, the respondent abrogated the requirement for a pharmacist to act with honesty and integrity; fundamental attributes for health practitioners to have, as is made plain in the Code of Conduct and the Code of Ethics. Cases concerning the characterisation of more or less analogous conduct as professional misconduct are set out in both submissions. As noted in Choi, the importance of honesty to the health profession is often emphasised by courts and Tribunals. The provision of dishonest responses to Ahpra during an investigation has been held to reflect seriously on a practitioner’s character.[7]
- [26]Both instances of the referred conduct can be properly characterised as professional misconduct, having regard to the agreement between the parties in relation to limb (a) and having regard to the material and the relevant burden of proof. With respect to limb (c) of the definition, the allegations each concern conduct that occurred in connection with the practice of pharmacy that is inconsistent with a practitioner being a fit and proper person to hold registration in the profession. A pharmacist must not unlawfully dispense medication to themselves; a pharmacist must not attempt to mislead the regulator of their profession in the course of an investigation into their professional conduct. At the time the conduct was engaged in, the respondent was prima facie not acting in a manner consistent with his being fit or proper to hold registration.
Sanction
- [27]The principles relating to the discretion and the imposition of sanction by this Tribunal in relation to a practitioner against whom a finding of professional misconduct has been made are well known. The jurisdiction is protective rather than punitive. The protection of the public and public confidence in the safety of services provided by registered health practitioners are the paramount principles of the National Registration Scheme established under the National Law and inform the determination of an appropriate sanction on a referral. The sanction imposed should act to ensure the maintenance of accepted professional standards and to maintain public confidence in the health profession. Any sanction imposed should be no more severe than is required to adequately meet its protected purposes.
- [28]As is often noted, an appropriate sanction in relation to a particular referral must turn on the facts of the particular case. A central consideration is whether the practitioner presents an ongoing risk, to which the degree of insight acquired by the practitioner and any evidence of rehabilitation will be relevant. General and personal deterrence are relevant considerations. Personal deterrence is important in cases where the practitioner denies proven misconduct or demonstrates a lack of insight into the appropriateness of their conduct.
- [29]Because the respondent does not hold a registration at the present time, the Tribunal is limited to making orders pursuant to section 196(2)(a), that is, to decide to caution or reprimand the practitioner, and may under subsection (4) decide to disqualify the person from applying for registration for a specific period. As I have noted, the parties here have agreed that a reprimand is appropriate and the Board does not seek an order under section 196(4), nor would there have been a basis for such a submission.
- [30]The referred conduct is obviously serious and inherently connected to the practise of pharmacy. As the respondent notes in his affidavit:
I can now fully appreciate that the conduct I engaged in which was subject to the notification was an appalling breach of professional standards on my part.
- [31]As in many of the cases referred to by the parties, it is apparent on the material before the Tribunal that the respondent has mental health issues, including a diagnoses of bipolar disorder and substance abuse disorders relating to steroid use and stimulant dependence which, on the basis of the material, at various times during the intervening period has been in remission.
- [32]As is conceded, the extent to which the respondent’s health affects his suitability to be registered and is a source of any risk the respondent may continue to pose is a matter for Ahpra and the Board to consider and to manage if and when he applies for registration, as provided for under the National Law.
- [33]The respondent’s health history provides relevant context to the referral, and he has taken considerable steps to address his health issues by undertaking treatment; that is indicative of insight. As to this, the psychiatric report dated 20 July 2020 in the Hearing Brief from the respondent’s then treating psychiatrist, Dr Sullivan, indicates that she was not aware at the time she was treating him that he was taking unprescribed stimulant medication on occasions as referred to in Dr Pryor’s report.
- [34]In the respondent’s affidavit filed in these proceedings on 31 March 2023, he refers to being treated by a general practitioner, a psychiatrist and a psychologist, but the Tribunal does not have any up-to-date material as to his state of health. He has attended in person today with his father, which again is indicative of insight and remorse, in my opinion.
- [35]In his affidavit, he frankly admits his dishonesty. He cooperated fully with the police investigation and entered a plea of guilty to a charge of fraud at a very early stage in the court proceedings. He has cooperated fully with the regulator, except for his lapse in relation to allegation 2 and he has cooperated with the Tribunal in bringing these proceedings to a timely conclusion. These are all matters that indicate insight and remorse. By allowing his registration to lapse ‘because I was too unwell to work’ demonstrates insight.
- [36]A significant period of time has now transpired between the referred conduct and the hearing. The respondent has been out of the profession for over seven and a-half years as a result of his conduct. As much is relevant to achieving specific and general deterrence and to the maintenance of public confidence in the profession. I agree with the parties that deterrence, denunciation and protection of the standing of the profession in the public eye is adequately achieved in the unique circumstances of this case by a reprimand. As is often said, a reprimand is not a trivial penalty: it is registered on the National Register and constitutes a public denouncement of the respondent’s misconduct.
Orders
- [37]The orders of the Tribunal are as follows:
- In relation to each allegation, the Tribunal finds that the respondent has engaged in professional misconduct under limbs (a) and (c) of the definition of professional misconduct in s 5 of the National Law.
- Having made findings that the respondent engaged in conduct characterised as professional misconduct, the respondent is reprimanded.
- The parties bear their own costs.
-
Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:
- the contents of a document or other thing filed in or produced to the Tribunal;
- evidence given before the Tribunal;
- any order made or reasons given by the Tribunal; and
- any other information,
is prohibited to the extent that it could identify or lead to the identification of:
- the respondent, [CJR];
- any patient named in the proceedings;
- the notifier of the alleged conduct; or
- any witnesses or any other individual named in the matter,
save as provided for by the terms of this order and save as is necessary for the parties to engage in and progress these proceedings or any appeal arising from these proceedings and for the Pharmacy Board of Australia to provide information to the Office of the Health Ombudsman in the exercise of the Board’s functions under the Health Practitioner Regulation National Law (Queensland).
- Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by a judicial member, tribunal member, any assessors appointed to assist the Tribunal, the staff of the Tribunal registry, or the parties to this proceeding.
Footnotes
[1][2022] QCAT 268 (‘Choi’).
[2][2020] QCAT 268 (‘DKJ’).
[3][2015] QCAT 439 (‘Wong’).
[4][2017] VCAT 109 (‘Cukier’).
[5][2021] VCAT 85 (‘Arulanandarajah’).
[6]See Arulanandarajah at [36], referring to Johns v Law Society of New South Wales [1982] 2 NSWLR 1 [9]-[10].
[7]See Psychology Board of Australia v Shahinper [2016] QCAT 259, at [38].