Pharmacy Board of Australia v KUL
[2023] QCAT 571
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- Pharmacy Board of Australia v KUL[2023] QCAT 571
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Pharmacy Board of Australia v KUL[2023] QCAT 571
Pharmacy Board of Australia v KUL[2023] QCAT 571
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Pharmacy Board of Australia v KUL [2023] QCAT 571 |
PARTIES: | pharmacy board of australia (applicant) v KUL (respondent) |
APPLICATION NO/S: | OCR242-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 30 October 2023 (ex tempore) |
HEARING DATE: | 30 October 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Reid Assisted by: Ms J Feeney, Pharmacist Panel Member Mr I Fredericks, Pharmacist Panel Member Mrs K Thomson, Public Panel Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCPLINARY PROCEEDINGS – where the respondent struck their child with a plastic coat hanger – where the respondent demonstrated contrition and remorse – where the respondent has made efforts to rehabilitate themselves – whether the conduct constitutes professional misconduct or unprofessional conduct – what is the appropriate sanction – where a non-publication order is made Criminal Code Act 1899 (Qld) National Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Medical Board of Australia v Arulanandarajah [2021] VCAT 85 Nursing and Midwifery Board of Australia v GMR [2020] VCAT 157 |
APPEARANCES & REPRESENTATION: | |
Applicant: | C Wilson instructed by King & Wood Mallesons |
Respondent: | B Mumford instructed by Meridian Lawyers |
REASONS FOR DECISION
- [1]Before me is an application by the Pharmacy Board of Australia (‘Board’) in respect of two allegations against a registered pharmacist arising out of an occasion in which she struck her child with a coat hanger. The issues for determination are whether or not the respondent was a fit and proper person to hold registration, and the extent to which her conduct departed from proper standards so that the appropriate orders can be made. It is not disputed that the respondent’s conduct was inappropriate, and that a reprimand ought not be imposed.
- [2]In respect of allegation 1, which involves the striking of the child, the Board contends that a finding of professional misconduct should be made within the meaning of paragraphs (a) and in particular (c) of section 5 of the National Practitioner Regulation National Law (Queensland) (‘National Law’); and further, that in relation to allegation 2, concerning the delay in reporting the matter to the board, a finding of unprofessional conduct within the meaning of section 5 of the National Law ought to be made. Counsel on behalf of the respondent submits that in respect of both matters, a finding of unprofessional conduct under section 5 of the National Law ought to be made. In view of the submissions that have been made, it is necessary to say something of the events which gave rise to this matter.
- [3]The respondent was born on 10 July 1998 in Malaysia, where she was educated to age 18. In 2007, she came to Australia to study. While in Australia, she met her husband and married in October 2016. She is of Chinese-Malay descent. She is a permanent resident in Australia, but her husband is a citizen. They have two children: the son, who is the subject of the incident giving rise to this application born in September 2018, so currently six years and one month of age; and the daughter born in March 2019, so currently four years and seven months of age. The respondent completed a Bachelor of Pharmacy at the University of Queensland in 2011. The respondent was first registered as a pharmacist in December 2011 and has continued practising as a pharmacist in a pharmacy to the north of Brisbane since that time.
- [4]On 11 December 2020, the respondent became frustrated at the conduct of her son during the time when she was preparing the children for childcare and was herself preparing to go to work. Her husband, who works as an Uber car driver, had been out and I think, had just come home. That is not of any relevance. As a result of her son’s behaviour, she directed him to behave and get ready for childcare. Her son refused. In the tension of the moment, it appears that she lost her temper and struck him a number of times with a plastic coat hanger.
- [5]It is not possible to say how often this occurred, but the photos clearly show a significant number of marks on his left leg, with one mark on the right leg. It is not possible to tell from the photographs exactly how many blows were struck. I do not know, for example, whether the coat hanger may have been ribbed and each blow may have left a number of marks. It seems the photos were taken late in that afternoon and the marks were still clearly visible at that time, indicating the blows were not insignificant.
- [6]After the incident the child was taken to childcare and it seems clear that the respondent showed the marks to the childcare workers. Not all of the marks were shown because, as she told police, he had his pants on at the time, but as would have inevitably occurred — and she must have known this — during the course of the day when he was being toilet trained, nappies would have been changed and the marks would have been clearly visible.
- [7]In any case, the staff of the childcare centre informed Children Services, who in turn informed police. Subsequently, the respondent attended upon the police on 19 December 2020 and conducted a record of interview. She seems to have been frank in that interview, admitting losing her temper and admitting striking him. She thought it was only on two occasions but, to be fair, she thought there were only some three or four marks, and it was clear there was a greater number. As I said, I do not think I can conclude how often the child was struck.
- [8]Subsequently, on 19 December 2020, she was given the notice to appear. On 21 December 2020, police notified the Office of the Health Ombudsman. On 4 January 2021, the respondent was given the police brief informing her that the charge against her was one of assault under section 339(1) of the Criminal Code Act 1899 (Qld). She did not inform the Pharmacy Board until 4 February 2021, which was the day after she pleaded guilty in the Magistrates Court and was sentenced to a 12-month good behaviour bond. No conviction was recorded.
- [9]It seems to me that delay, while a breach of the obligation that a pharmacist has to the Board, is relatively trivial and as I said, she reported the day after she was sentenced.
- [10]In any case, as a consequence of the police referral, the Health Ombudsman on 15 January 2020 referred the matter to the Australian Health Practitioner Regulation Agency (‘Ahpra’), which commenced an investigation on 18 January 2021. It took the Board until 2 June 2022, almost 18 months, to form the view that it held the belief the respondent had behaved in a way that constitutes professional misconduct. The matter was referred to the Queensland Civil and Administrative Tribunal on 23 June 2022. In that way, the matter has come before the Tribunal today.
- [11]It is submitted on behalf of the Board that I ought to make a finding of professional misconduct because of the strictures of the definition of that term in section 5 of the National Law. In particular, under subsection (c), professional misconduct of a registered health practitioner is said to include:
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.
- [12]It is submitted that in determining whether or not the conduct fits within that definition, one must look only at the act of, in this case, striking the child with the coat hanger, and that all other matters are irrelevant to that consideration.
- [13]
It is important to apply the words of the definition. The assessment of the whole history and character of the doctor is not required to be made at this stage of the analysis. All that is required at this point is a determination of whether or not the conduct is inconsistent with the practitioner being a fit and proper person to hold registration.
- [14]The decision in Arulanandarajah draws a distinction between an assessment of the conduct at the time of the event complained of and an assessment at the time of the hearing. At [34], the Tribunal said:
The legislature could have, but did not, require that the conduct demonstrate, or prove, that the practitioner is not fit and proper at the time of the hearing, in order to satisfy (c) of the definition of professional misconduct.
- [15]The Tribunal continued:
This has two relevant consequences. First, the words used allow for the possibility that while the conduct engaged in by the practitioner was inconsistent with being a fit and proper person to hold registration, the practitioner himself was not in fact unfit at that point.[2]
- [16]It appears to me that the approach taken by the Tribunal at [35] means, necessarily, that something more than the conduct itself must be examined. In my view, it necessarily involves an assessment of whether or not the practitioner herself was not, in fact, unfit at that point in time, and that involved some consideration of her then personal circumstances.
- [17]I accept that this precludes from consideration matters that are ultimately relevant in this matter, for example, her rehabilitation by way of completion of the Triple P Parenting Program referred to in the course of submissions, but must take into account other features of her life at that time, in particular:
- the fact that no other complaints of any sort have been made;
- the fact that she was a loving and dutiful mother to the children, as attested to by the departmental officers when they attended upon her house days later; and
- her immediate contrition of remorse because, as she said in the record of interview, she immediately stopped and hugged her son.
- [18]All of those things, in my view, are relevant to the assessment of whether or not the conduct is properly characterised under subsection (c) of the definition of professional misconduct in the National Law.
- [19]In the circumstances, it is my view that, while domestic violence is abhorrent and must not be condoned, one must necessarily have a look at the nature of the offending and of the person involved in the offending in making an assessment as to whether or not it is professional misconduct or unprofessional conduct. Cases provided to us in support of the submissions allow for such a distinction. For example, in [25] of the applicant’s submissions, there is reference to paragraphs [8]-[10] of the decision in Nursing and Midwifery Board of Australia v GMR,[3] where the tribunal said:
…it has been rightly accepted in a number of recent cases (in other jurisdictions) that acts of domestic and family violence committed by health practitioners can give rise to professional misconduct or unprofessional conduct under the National Law.
- [20]In the circumstances of this case, I find that the conduct amounts to unprofessional conduct and decline to make a finding of professional misconduct. The parties are in agreement that the late reporting of the matter to the appropriate authority constitutes unprofessional conduct.
- [21]In determining that, I think a sanction is appropriate. I am also conscious of the significant efforts that the respondent has made subsequent to the misconduct to ensure that her behaviour towards the children in the future would not again transgress the accepted norms in our society. In particular, I have referred to her attendance and completion of the Triple P Parenting Program. I think her express contrition and remorse to the police, the child-care officers and, indeed, through counsel to the Tribunal all are significantly in her favour.
Orders
- [22]In the circumstances, the Tribunal makes the following orders:
- In relation to allegation 1, the Tribunal finds that the respondent has behaved in a way that constitutes unprofessional conduct.
- In relation to allegation 2, the Tribunal finds that the respondent has behaved in a way that constitutes unprofessional conduct.
- The respondent is reprimanded.
- A non-publication order as per Annexure A is made.
- No order as to costs.
Annexure A
THE TRIBUNAL ORDERS THAT:
-
Until further order, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
- the contents of a document or 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 identity of any individuals who are named in any documents or thing produced to the Tribunal that may identify or lead to the identification of the individual named in the material produced relevant to the Respondent’s conduct the subject of the Referral.
-
Order 1 does not apply to publication to the extent it is for the purposes of:
- the parties engaging in and progressing this proceeding; or
- the Pharmacy Board of Australia performing its statutory 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 assessor appointed to assist the Tribunal, the staff of the Tribunal registry, or the parties to this proceeding (including their legal representatives).