Pharmacy Board of Australia v Huynh
[2024] QCAT 557
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- Unreported Judgment
- Pharmacy Board of Australia v Huynh[2024] QCAT 557
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Pharmacy Board of Australia v Huynh[2024] QCAT 557
Pharmacy Board of Australia v Huynh[2024] QCAT 557
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Pharmacy Board of Australia v Huynh [2024] QCAT 557 |
PARTIES: | Pharmacy board of australia (applicant) v Johnny huynh (respondent) |
APPLICATION NO/S: | OCR326-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 12 November 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Robertson Assisted by: Ms J Feeney (Cochrane), Pharmacist Panel Member Mr M Lock, Pharmacist Panel Member Dr W Grigg, Public Panel Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the respondent was a locum pharmacist – where the respondent forged a script for scheduled medication under another person’s name with another doctor as the prescriber – where the respondent dispensed the medication to himself and paid for it on his Mastercard – where the respondent was charged with several offences under the Criminal Code involving forgery, uttering and dishonesty – whether the separate instances of similar conduct in the same 24 hour period can be regarded as one course of conduct – where the respondent provided the applicant Board with an undertaking not to practise – where the respondent’s registration lapsed – where the respondent pleaded guilty to all charges during the criminal proceeding – where the respondent admits his conduct amounts to professional misconduct – where the respondent failed to comply with his s 130 obligation to notify the applicant Board of three relevant events – where the failures to notify constitute unprofessional conduct – reprimand Criminal Code Act 1899 (Qld) Health (Drugs and Poisons) Regulation 1996 (Qld) Health Practitioner Regulation National Law (Queensland) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Craig v Medical Practitioners Board [2001] SASC 169 Health Ombudsman v Choi [2022] QCAT 268 Health Ombudsman v Dalziel [2017] QCAT 441 Health Ombudsman v FYJ [2022] QCAT 92 Health Ombudsman v Holland [2021] QCAT 2003 Medical Board of Australia v Arulanandarajah (Review and Regulation) [2021] VCAT 85 Medical Board v Singh [2017] WASAT 33 Pharmacy Board of Australia v Christie [2016] QCAT 291 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]This is the matter of Pharmacy Board of Australia and Johnny Huynh, case number OCR326-22. The Tribunal is chaired by John Robertson. The panel are Ms Jill Feeney, Dr Wendy Grigg and Mr Mark Lock. The matter is being heard on the papers.
- [2]At all relevant times, the respondent was registered with the Pharmacy Board of Australia (‘Board’) as a pharmacist. He was registered as a pharmacist with the Board on 4 November 2004. He has a bachelor’s degree from the University of Queensland in pharmacy.
- [3]The Board’s referral filed on 1 December 2022 contains four allegations, which essentially arise out of a number of serious acts of misconduct that occurred on 25 and 26 November 2019, which he admits. His response filed on 21 February 2023 did not dispute the facts of the allegations. The parties filed a statement of agreed and disputed facts on 28 March 2023, none of the relevant facts are disputed. The respondent cooperated with the Board and the Tribunal. His solicitors advised the Tribunal on 5 July 2023 that they would not be filing any submissions, as a result of which, orders were made that the referral be determined on the papers.
The relevant factual background
- [4]On 25 and 26 November 2019, the respondent was employed as a locum pharmacist at a pharmacy in Brisbane. It also appears that at that time, and for a number of years, he had been engaged with partners in a music retail business which operated a number of retail outlets in Brisbane. One of his partners was XY.
- [5]On 25 November, the respondent forged a prescription for two boxes of Valium five milligrams (100 tablets) under the name of XY, with Dr AB noted as the prescriber, which he then dispensed to himself and for which he paid $15 using his own MasterCard. As a result, in August 2021, he was charged with one count each of fraud, uttering and dishonestly obtaining property under various provisions of the Criminal Code Act 1899 (Qld) (‘Criminal Code’).
- [6]On 26 November, he engaged in similar conduct in relation to one box of Normaxin 10 milligram (25 tablets), and in August 2021, he was charged by police with three separate offences of forgery, uttering and fraud in relation to that conduct. He paid $5 for the Normaxin using his Mastercard.
- [7]On 10 December 2019, the owner of the pharmacy notified the Office of the Health Ombudsman which, in turn, made a notification to the Medicines Compliance and Human Tissue Unit (‘MCHTU’) of Queensland Health, which led to the cancellation of all the respondent’s endorsements to deal with and/or dispense restricted drugs under the then Health (Drugs and Poisons) Regulation 1996 (Qld) (‘Regulation’).
- [8]The Health Ombudsman also notified the Australian Health Practitioner Regulation Agency (‘Ahpra’), and on 14 January 2020, the Board accepted an undertaking from the respondent not to practise as a pharmacist.
- [9]On 10 November 2021, the respondent pleaded guilty to all charges in the Beenleigh Magistrates Court and was fined $1,800 with no conviction recorded.
- [10]On 30 November 2022, the respondent’s registration lapsed after he failed to renew his registration and he remains unregistered.
- [11]Allegation 1 of the referral relates to the facts of the criminal offending. In relation to allegations 2-4, he admits that contrary to section 130(1) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), he did not notify the Board in writing within the prescribed time of:
- the cancellation of his endorsement (allegation 2);
- the fact that he was charged with the offences on 21 August 2021 (allegation 3); and
- the findings of guilt made against him on 10 November 2021 in the Magistrates Court. His lawyers having made a late notification to the Board on 4 February 2022.
Characterisation
- [12]The respondent admits all his conduct and that, in so behaving, he has breached section 130(1) of the National Law, various provisions of the Regulation, the Criminal Code, the Board’s Code of Conduct for Pharmacists (in effect from 17 March 2014), the Pharmaceutical Society of Australia’s (‘PSA’) Code of Ethics for Pharmacists (dated June 2017) and the PSA’s Professional Practice Standards. He admits through his lawyers that his conduct amounts to professional misconduct as defined in the first and third limb of section 5 of the National Law.
- [13]That agreement is a relevant factor for the Tribunal to consider. However, the Tribunal retains the discretion to be exercised fairly in light of the circumstances of the particular case.
- [14]In my opinion, the respondent’s conduct was very serious but, when viewed in context, not as serious as other similar cases, where registered pharmacists have been found guilty of criminal offending of this nature. The facts outlined to the magistrate by the prosecutor indicate that the offending in relation to the Normaxin tablets, in the sense of the dispensation to himself without a prescription, was observed by other staff members who also saw him purchase the drugs. It is common ground that he used his own Mastercard for both purchases. These staff members informed the manager, who made an inquiry, leading to the discovery of the respondent’s actions the previous day and his summary dismissal from the workplace.
- [15]His offending, although brazen, was amateurish, and it was inevitable that his conduct would be discovered. Although his conduct in relation to Schedule 4 drugs is very serious, there is no suggestion that he was a drug abuser, nor is there any suggestion that he was selling drugs. He stated to the regulator that he was obtaining the drugs for his partner, XY. His position was that, at the relevant time, the music business was in dire financial difficulties and that both he and XY were suffering anxiety and sleep deprivation as a result.
- [16]It can be accepted, by reference to a number of decisions of the Victorian Civil and Administrative Tribunal (‘VCAT’), in particular, Medical Board of Australia v Arulanandarajah (Review and Regulation),[1] that the consideration of whether a person is a fit and proper person to be registered in the profession as a pharmacist is to be undertaken by reference to the time of conduct and not at the time of the hearing. There are a number of cases, for example, Health Ombudsman v Dalziel,[2] Health Ombudsman v Holland,[3] Health Ombudsman v Choi,[4] and in particular, Health Ombudsman v FYJ (‘FYJ’),[5] which involved much more serious conduct than the conduct here and where the Tribunal found that the relevant health practitioner, being a pharmacist in all cases, had behaved in a way that constituted professional misconduct as defined in the first limb of section 5.
- [17]In FYJ, the pharmacist had taken a significant quantity of Schedule 8 medication. It was found that 29,000 Ritalin and 3,600 Artige tablets had been taken between June 2014 and November 2018. The practitioner had created false prescriptions in the drug register on 67 occasions, and on other occasions inflated the amount dispensed to other customers, on 82 occasions. The medication was taken for his own use. Criminal charges were not pursued. While the regulator submitted that the conduct fell within all three limbs of the definition of professional misconduct, the Tribunal found that the conduct ‘was unprofessional conduct substantially below the standard reasonably expected of a registered health practitioner of his level and training and experience’[6] that is, under the first limb of the section 5 definition.
- [18]The Board refers to Pharmacy Board of Australia v Christie ('Christie’),[7] where the Tribunal found that the respondent pharmacist had engaged in professional misconduct within the meaning of the third limb of the section 5 definition. Like this matter, that matter was determined on the papers. The conduct in Christie clearly involved, objectively, much more serious conduct over a much longer period. The respondent there was convicted of two counts of stealing as a servant and possession of dangerous drugs between April and June 2013. The Tribunal noted:[8]
His misconduct stems from his wrongful acquisition of various controlled, restricted and addictive drugs during a number of periods. His conduct included obtaining them from his employer through deceit, and covering this up in a number of ways, including the creation of fictitious transactions to explain the disappearance of the drugs.
- [19]The practitioner there had a history of drug misuse, including controlled drugs and other medications, including testosterone and anabolic steroids. His misuse of controlled drugs such as Morphine, Endone, Oxycodone, and Fentanyl included specified periods over a number of years.
- [20]The respondent’s conduct here can be properly characterised as one course of conduct over approximately 24 hours, with the failures to notify being technical in the sense that regulators such as the Health Ombudsman and Ahpra knew within a fairly short period of time of the cancellation of his endorsements. I can infer that the various lawyers who have represented him did not advise him, or if they did, he did not follow their advice, of his legal requirement under section 130(1) of the National Law to notify the Board when he was charged and convicted. It is not suggested that any of these failures are implications concerning the health of the public, given that he was either unemployed or subject to an undertaking not to practise at the relevant time.
- [21]The conduct here is serious as it strikes at the heart of the public expectation, amplified by the law and the provisions of the relevant codes and standards, that health practitioners should act honestly and obey the law.
- [22]In my opinion, the Board here has not established to the appropriate standard that the respondent’s behaviour, either taken in isolation or as a whole, satisfies the description of professional misconduct contained in the third limb of the definition of section 5.
- [23]The Board has satisfied the Tribunal that the respondent’s conduct constitutes professional misconduct as defined in the first limb of section 5 of the definition.
Sanction
- [24]The parties agree that the appropriate response by way of sanction is a reprimand. Because the respondent is not registered, the Tribunal can also consider making an order under section 196(4); however, the Board does not seek such an order and it would be punitive, in any event, for the reasons set out above. The parties’ agreement as to sanction does not bind the Tribunal, but it is accepted that it should not depart from the agreed orders unless they fall outside the appropriate range for the proved professional misconduct. This is particularly so when the parties are both represented by lawyers with long experience in administrative law.
- [25]
- [26]The nature and seriousness of the proved conduct has been discussed above. The proposed sanction operates as a public denouncement of the respondent, who, as a registered pharmacist, behaved dishonestly and unethically. The cases cited by the Board support the imposition of a reprimand. It is also relevant to sanction that as a result of his own actions, the respondent has now been out of practice for over three years. If he does apply for registration, his fitness will be a matter for the Board. The proposed sanction is sufficient to meet the purposes of general deterrence and to uphold the standing of the profession in the public mind.
- [27]The respondent has no other disciplinary or criminal history. His conduct appears to have been an aberration in an otherwise unblemished professional career. He has shown insight in his response to regulators and he has cooperated with the Board, during these proceedings and with the police. Specific deterrence does not really arise here, but the consequences of the conduct of the respondent in relation to allegation 1 has been so dire as to satisfy the Tribunal that he is highly unlikely to ever repeat his behaviour. As the Board fairly acknowledges, the respondent has demonstrated remorse and insight by his actions since the events in November 2019, including undertaking an ethics course conducted by the Pharmaceutical Society of Australia.
Orders
- [28]The orders and findings of the Tribunal are as follows:
-
The Respondent engaged in:
- with respect to Allegation 1, professional misconduct within the meaning of the definition in paragraph (a) of section 5 of the National Law; and
- with respect to Allegations 2–4, unprofessional conduct within the meaning of the definition in paragraph (a) of section 5 of the National Law.
- The Respondent is reprimanded pursuant to section 196(2)(a) of the National Law.
- Each party bear its own costs.