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Pharmacy Board of Australia v RKE[2025] QCAT 158

Pharmacy Board of Australia v RKE[2025] QCAT 158

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pharmacy Board of Australia v RKE [2025] QCAT 158

PARTIES:

pharmacy board of australia

(applicant)

v

RKE

(respondent)

APPLICATION NO/S:

OCR 165-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

27 May 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Dann, Deputy President

Assisted by:

Ms J Feeney

Mr M Lock

Mr M Halliday

ORDERS:

  1. THE TRIBUNAL ORDERS THAT:
  1. 1.
    Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
  1. (a)
    the contents of a document or other thing filed in or produced to the Tribunal;
  1. (b)
    evidence given before the Tribunal;
  1. (c)
    any order made or reasons given by the Tribunal;
  1. is prohibited to the extent that it could identify or lead to the identification of:
  1. (d)
    a party to a proceeding under the Domestic and Family Violence Protection Act 2012 (Qld);
  1. (e)
    a witness in a proceeding under the Domestic and Family Violence Protection Act 2012 (Qld); or
  1. (f)
    a child concerned in a proceeding under the Domestic and Family Violence Protection Act 2012 (Qld);
  1. 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 or review arising from these proceedings, and for the applicant to provide information to the Office of the Health Ombudsman in the exercise of its statutory functions under the Health Practitioner Regulation National Law (Queensland).
  1. 2.
    Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
  1. (a)
    a judicial member;
  1. (b)
    a tribunal member;
  1. (c)
    an associate to a judicial officer or tribunal member appointed under relevant legislation;
  1. (d)
    any assessor appointed to assist the Tribunal;
  1. (e)
    the staff of the Tribunal registry;
  1. (f)
    any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
  1. (g)
    the parties to this proceeding or any appeal or review arising from these proceedings.
  1. IT IS THE DECISION OF THE TRIBUNAL THAT:
  1. 1.
    Pursuant to s 196(1)(b)(iii) of the National Law, in respect of each of the three allegations, the respondent has behaved in a way that constitutes professional misconduct.
  1. 2.
    Pursuant to section 196(2)(a) of the National Law, the respondent is reprimanded.
  1. 3.
    There be no order for costs.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the respondent was a registered pharmacist – where the applicant Board alleges that the respondent failed to comply with relevant guidelines, accepted practice or relevant legislation when dispensing S 4 and S 8 medications to patients – where the applicant Board alleges that the respondent communicated with several persons in a manner that was aggressive, intimidating, discourteous or otherwise inappropriate or inconsistent with processional standards expected and required of a registered pharmacist – whether the Board has proven on balance that the alleged conduct has occurred – whether the conduct should be characterised as professional misconduct – where the Board makes submissions as to imposing a ‘cumulative’ period of suspension – whether the sanction sought by the Board is punitive

Health (Drugs and Poisons) Regulation 1996 (Qld)

Health Practitioner Regulation National Law (Queensland)

Medicines and Poisons (Medicines) Regulation 2021

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336

Craig v The Medical Board of South Australia (2001) 79 SASR 545

Dental Board of Australia v Dhillon [2018] WASAT 107

Health Ombudsman v RKE [2024] QCAT 290

Medical Board of Australia v Bromeley [2018] QCAT 163

Medical Board of Australia v Datta (Review and Regulation) (Corrected) [2024] VCAT 28

Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 391

Pharmacy Board of Australia v Amurao [2025] QCAT 100

Psychology Board of Australia v Cameron [2015] QCAT 227

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

What is the referral about?

  1. [1]
    On 30 June 2023 the Pharmacy Board of Australia (‘Board’) filed a referral in the Tribunal alleging six disciplinary grounds involving five separate notifications.
  2. [2]
    The Office of the Health Ombudsman (‘OHO’) was, however, to progress the conduct caught by one of the notifications (‘OHO referrals’).  Consequently, the Board got leave to amend its referral on 18 August 2023 (‘Amended Referral’) and the Amended Referral is what proceeds today.  It involves:
    1. An allegation that the respondent failed to comply with relevant guidelines, accepted practice or relevant legislation when dispensing medication for a particular temperature sensitive Schedule 8 (‘S 8’) medication to a child, thereby exposing the child to health risks;
    2. An allegation that the respondent failed to comply with relevant guidelines, regulations or accepted practice when dispensing a Schedule 4 (‘S 4’) medication to an adult, by leaving it unattended and unsecured in a public area;
    3. An allegation that the respondent communicated with several persons in a manner that was aggressive, intimidating, discourteous or otherwise inappropriate or inconsistent with processional standards expected and required of a registered pharmacist.

Is it appropriate to determine this matter on the papers?

  1. [3]
    The respondent filed a response to the Amended Referral on 29 September 2023 in which, in summary he:
    1. admitted making a mistake in labelling the S 8 medication for the child which forms part of allegation one, states he admitted this to the child’s parents and issued a new label along with thorough phone consultations and counselling on how to administer the medication.  The child’s parents dispute that consultation and counselling were provided;
    2. otherwise put the allegations generally in dispute. 
  2. [4]
    Initially the Tribunal ordered that this matter be heard and determined with the OHO referrals.  However, as the respondent disputed factual matters in this referral but not in the OHO referrals, on 23 February 2024 that order was vacated and the Amended Referral was directed to be held over for directions on 1 November 2024, allowing the OHO referrals to be heard and determined.  The OHO referrals were heard and reasons delivered on 23 July 2024.[1]
  3. [5]
    In a Directions Hearing on 1 November 2024, which the respondent attended by video link from custody, he advised the Tribunal:
    1. his registration as a pharmacist had been cancelled;
    2. he had no interest in participating in the proceeding which was a waste of taxpayer’s money and a waste of the Tribunal’s time;
    3. he was not interested in being a registered pharmacist ever again;
    4. he understood the Tribunal would make directions for the matter to proceed;
    5. he did not wish to receive any correspondence or material from the Board or the Tribunal, including that filed in accordance with the directions; and
    6. on more than one occasion that he did not wish to participate any further in the proceeding.
  4. [6]
    The Tribunal told the parties it would order the transcript and place it on the file to record the respondent’s position.  Directions were then made to progress the matter for hearing without further involvement from the respondent.  A copy of the transcript of that hearing is on the file.  The matter has been progressed in accordance with those directions.
  5. [7]
    In these circumstances the Tribunal proceeds to determine the referral in accordance with s 32(2) of the of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

What law applies to the referral?

  1. [8]
    The referral proceeds before the Tribunal pursuant to section193B(2) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’).
  2. [9]
    The Tribunal is exercising its original jurisdiction.[2]  The Board has the burden of proof of each of the allegations.  Because of the potential consequences to the respondent of adverse findings, the Tribunal may only find that the respondent engaged in the alleged conduct and that it should be characterised as professional misconduct or unprofessional conduct if it is satisfied of these matters according to the standard of proof articulated in Briginshaw v Briginshaw (‘Briginshaw’).[3]
  3. [10]
    The respondent has no obligation to provide any evidence.  As noted, the respondent has not participated in the proceeding beyond filing a response and attending directions hearings.  The Hearing Brief contains copies of text messages passing between the respondent and various persons relevant to the allegations and materials the respondent gave to Ahpra during the investigation of the matters giving rise to the allegations.  The Tribunal has had regard to this material noting that, in doing so, the respondent does not have to prove anything and that having regard to it does not change the Board’s onus of proof. 
  4. [11]
    The Tribunal considers all the evidence before it and it is only if, after doing so, the Tribunal is satisfied the matters the Board alleges are established by the Board on the balance of probabilities in accordance with Briginshaw, that the allegations are proven and any finding of professional misconduct or unprofessional conduct can be made.  
  5. [12]
    The Tribunal must observe the rules of natural justice,[4] is not bound by the rules of evidence[5] and may inform itself in any way it considers appropriate.[6]
  6. [13]
    Codes or guidelines approved by a National Board are admissible in proceedings under the National Law against a heath practitioner registered in a health profession as evidence of what constitutes appropriate professional conduct or practice for the health profession.[7]

What is relevant about the practitioner?

  1. [14]
    The respondent obtained his bachelors qualification in pharmacy in New Zealand in 2006 and was first registered to practise in Australia on 8 January 2007. 
  2. [15]
    At the times relevant to the events in this referral, the practitioner was a registered pharmacist and practised at a practice in suburban Brisbane.
  3. [16]
    He has a relevant regulatory history.[8]  It includes:
    1. That Ahpra received a complaint concerning his conduct and disrespectful communication to the notifier on 4 June 2014 and overcharging for medication.  On that occasion the Board found the practitioner had practised the profession in a way that was unsatisfactory and he was cautioned.  Specifically, the findings included that he failed to provide care in a compassionate and professional manner and had not adhered to the Pharmaceutical Society of Australia’s Code of Ethics for pharmacists (‘Code of Ethics’), specifically principal 1 consumer first priority and the Pharmacy Board of Australia Code of Conduct[9] (‘Code of Conduct’) for registered health practitioners in relation to his conduct towards the complainant;
    2. In November 2016 the Board, through a performance and professional standards panel (‘Panel’), dealt with four notifications and made findings, in summary: that in late 2014 the practitioner had communicated inappropriately with a medical practitioner and staff member of a medical centre yelling at them and behaving aggressively; that in May 2015 the practitioner communicated inappropriately with a patient, yelling at her and behaving in an aggressive and unprofessional manner; in late 2015 the practitioner failed to provide counselling or information  in relation to prescription medication he had sent by post to a patient, in contravention of relevant Board guidelines and further, that he failed to assist the same patient to obtain an alternative supply of medication in early 2016; and finally over a six week period in 2016, the practitioner communicated inappropriately with the notifier upon receiving their resignation.  The Panel found the practitioner had behaved in a way that constituted both unprofessional conduct and unsatisfactory professional performance.  The Panel decided to reprimand and impose education conditions requiring the practitioner to undertake a course in relation to conflict resolution and communication with patients, customers and health professionals;
    3. In July 2018, the practitioner was found to have practised the profession in a way that was unsatisfactory and he was cautioned.  This was because he failed to give notice that he was required to give of a relevant event pursuant to s 130 of the National Law.  The event was that he was charged with serious assault of a public officer performing a function and use of a carriage service to make a threat to cause serious harm.  He was cautioned.  The OHO issued immediate registration action in July 2017 in the form of imposing conditions on the practitioner and suspending his registration for a period of time;
    4. In March 2019, the practitioner was found to have communicated in an inappropriate and disrespectful way with a colleague and he was cautioned; and
    5. On 23 July 2024, the Tribunal found the practitioner guilty of professional misconduct for: defrauding the Pharmaceutical Benefits Scheme of almost two million dollars; being convicted of contravening a police protection order; failing to give the Board the notice required by section 130 of  the National Law of being charged, or being found guilty of, the offence; and for making a false statement in his renewal of his registration by not declaring the change to his criminal history arising from that latter conviction.  He was reprimanded, his registration was cancelled and he was disqualified from applying for registration until 2032. 

What facts does the Tribunal find the referral proceeds on?

  1. [17]
    I will deal with each allegation in turn.

Ground 1 – failing to accurately and safely dispense a child’s medication

  1. [18]
    In June 2021, the patient, a child, had been prescribed an S 8 medication, methylphenidate, commonly known as Ritalin.  The prescription included instructions that half of a 10mg tablet be taken twice per day.[10]  It was initially dispensed by another pharmacy, and there was a repeat remaining.
  2. [19]
    In September 2021, the patient’s mother sought to fill the repeat, using the respondent’s pharmacy, which was a compounding chemist with a prescription delivery service located near her home.  She went online to the respondent’s pharmacy’s website and on the morning of 6 September 2021, sent a request to have the prescription filled and delivered.  The respondent responded to her request quickly and was helpful, discussing flavours for the medication.  Messages supporting the initial exchange are in the hearing brief.[11]
  3. [20]
    The patient’s mother organised a time for the respondent to drop the medication to her home into her mailbox and that she would leave the prescription there for him to collect.  After a few days she says she had not received the medication so began chasing the respondent who did not answer his phone.  The documents suggest that the period between making the request for the medication and the first follow up was in the order of about 36 hours.
  4. [21]
    A text message from her to the respondent on 7 September 2021 following up delivery of the medicine is in evidence, as is his reply asking to be able to drop it off the next day which she acceded to.[12]  The patient’s mother also said she would put the script back in the mailbox in the morning.  When she sent a message chasing the delivery the next day and advising she had taken the script out of the mailbox again, she asked when the medication would be dropped off or if she could collect it.  His response by text was that the medication was on the wooden stairs.[13]  The patient’s mother then asked if she should send him the script and the respondent replied if she put it in her mailbox he’d collect it the next day.[14]
  5. [22]
    When the patient’s mother found the medication on the front stairs, she was concerned as it had been left out in the open and needed to be refrigerated.  The patient’s mother deposes that the label on the liquid dispensed read “Give 0.7 mls at night by measuring spoon” which was different from the instructions for the prescription in tablet form.  A photograph of the medication bottle is in evidence but unfortunately its label is largely obscured.[15]  As she was confused about the administration instructions the patient’s mother says she tried to contact the respondent by telephone a number of times, but he did not answer and did not return her calls.  Consequently, her husband left a one star google review for the business expressing concerns with the labelling and delivery of the product stating:[16]

Not confident in a chemist that can’t label children’s medicine correctly or that doesn’t return phone calls.  I’ll go to a pharmacy that has a shop front next time.

  1. [23]
    The terms of the google review are consistent with the mother’s evidence that she had been seeking communication and counselling from the respondent about the use of the medication.
  2. [24]
    Shortly after the review was posted the respondent sent a number of messages on the messaging platform to the patient’s mother.  They are in evidence and read as follows:
  1. (a)
    At 7:46pm on 15 September 2021, the respondent wrote:
  1. Why has your husband put such a nasty review on my website?  Ok so we made a small mistake.  We are happy to correct the mistake.  Do me a favour and ask your husband to take his nasty review off or i (sic) will engage my lawyer first thing in the morning.  I went out of my way to help you guys.  If he wants to be nasty i (sic) will teach him a lesson he will never forget.  [respondent’s name]…
  1. (b)
    At 7:47pm on 15 September 2021, the respondent wrote:
  1. You guys are responsible for supplying the script when i (sic) dropped off that medication.  However you deliberately did not leave that script in your letterbox and i (sic) have all the texts to prove that.  I will make this really ugly for you guys.
  1. (c)
    At 7.52pm on 15 September 2021, the respondent wrote:
  1. As of now you guys have obtained a schedule 8 medication by deception.  If the review is not taken off I will take the matter furthur (sic) and get the police involved first thing in the morning.  I also demand that you post the original script with the repeat immediately to my postal address.  PO Box [address included].
  1. [25]
    The patient’s mother responded the next day:[17]

Hi [name of respondent],

I don’t know what my husband wrote and I also cannot control what he does.

I suppose we will hear from your lawyer in due course …

  1. [26]
    The patient’s mother deposes she was upset and scared after receiving the messages, because the respondent knew where they lived.  She also deposes that she did not use the medication which the respondent supplied but returned to the paediatrician for another prescription.
  2. [27]
    In the respondent’s response to the Amended Referral he admits making a mistake in labelling the S 8 medication for the child.  He also states he admitted this to the child’s parents and issued a new label along with thorough phone consultations and counselling on how to administer the medication.  That is inconsistent with the child’s mother’s statement and the contemporaneous google review.
  3. [28]
    The practitioner’s response to Ahpra in the investigation is in the Hearing Brief and I have read and considered it.  It is inconsistent in a number of respects with the contemporaneous documents.  For example:
    1. it states that the patient’s mother was begging the respondent to deliver the medication that day, because they had run out and he delivered it that night, albeit an hour late.  However, it is apparent from the chronology of the text messages that this cannot be the case because the messages clearly indicate the patient’s mother was following him up after 36 hours had passed and he was seeking to delay the delivery until the next day and in fact did so with her acquiescence;
    2. it states that the medicine was delivered at 6pm when he had said it would be delivered at 5pm.  That is inconsistent with the text message which the respondent sent asking to deliver it the next day and being told that was ok to do; and
    3. his statement that he provided proper information about the correct dose is inconsistent with the google review which stated he ‘doesn’t return phone calls’.  
  4. [29]
    Consistent with the contemporaneous documents I generally accept the patient’s mother’s account of the events. 
  5. [30]
    Further, the professional assessors advise me that Ritalin is not prescribed to be administered at night, so instructions to do this would have been very confusing.  They confirm that it is a medication which requires refrigeration when dispensed in a compounded form as a suspension.  I accept their advice.
  6. [31]
    I find that on or about 8 September 2021, the respondent failed to accurately and safely dispense the child patient’s medication by:
    1. printing a label with instructions for a dosage of 0.7mls at night by measuring spoon once per day when the prescription was to take half a 10mg tablet twice per day;
    2. failing to identify that the child’s dispensed dosage of the medication was incorrect;
    3. failing to ensure the medication remained refrigerated in accordance with the label he dispensed;
    4. failing to tell the patient’s mother that he had delivered the medication to mitigate any risk to the patient where the medication was temperature sensitive and needed to be refrigerated; and
    5. failing to provide counsel to the patient or his mother which was sufficient to allow a proper understanding of all the information required to use the medication safely and effectively.
  7. [32]
    There is evidence from the patient’s mother that as at 17 September 2021, she still possessed the prescription and was unsure what to do with it.[18]  The respondent had asked for the prescription to be returned to the mailbox so he could collect it after he had left the medication on the front stairs.  There is no evidence she returned it to the mailbox as he had asked her to do.  He had also, in his final message on 15 September 2021, demanded that it be posed to his postal address. 
  8. [33]
    In so acting, the respondent failed to comply with the then applicable regulation 91(2) of the Health (Drugs and Poisons) Regulation 1996 (Qld) (‘Drugs and Poisons Regulation’).  Regulation 91(2) required the practitioner, as a person who was selling a controlled drug by delivering it to the buyer at the buyer’s premises, to obtain on delivery from the person to whom the drug is delivered a dated and signed acknowledgment of receipt of the drug, written on or attached to the order.  Ritalin is a controlled drug.  Thus, the respondent failed to comply with the Drugs and Poisons Regulation when he failed to obtain such an acknowledgment of receipt from the patient’s mother
  9. [34]
    The conduct I have found occurred is also inconsistent with a number of the codes, standards and guidelines setting out what is appropriate conduct for registered pharmacists.  The shortcomings include the following.
  10. [35]
    The failure to apply the correct label is inconsistent with the requirements in the Pharmaceutical Society of Australia’s Dispensing Practice Guidelines effective from June 2019 (‘PSA Guidelines’) that the pharmacist must ensure that sufficient information is provided in relation to indications, dosage and possible adverse reactions to enable patients to make informed decisions.
  11. [36]
    The failure to communicate with the patient’s mother to provide information so the mediation could be safely and effectively used was also conduct inconsistent with the requirement in clause 8 of the Pharmacy Board of Australia’s Guidelines for Dispensing of Medicines effective from 7 December 2015 (‘Dispensing Guidelines’).
  12. [37]
    Leaving the medication on the steps, without refrigeration and without advising the patient’s mother that it was there, was conduct inconsistent with the requirement in clause 3.11 of the Pharmaceutical Society of Australia’s Professional Practice Standards effective from 2017 (‘PSA PPS’): that the pharmacist ensure optimal supply and storage arrangements for therapeutic goods.
  13. [38]
    I find that on or about 8 September 2021 the respondent did not meet the standards expected of a registered pharmacist, as set out in regulations and relevant guidelines, when dispensing medication in the course of his employment as a pharmacist at the pharmacy in question.

Ground 2 - failing to safely dispense medication by leaving medication unattended and unsecured in a public area 

  1. [39]
    This allegation relates to the delivery of a medication on two occasions to the client’s home.
  2. [40]
    In this case, the client had been attending the respondent’s pharmacy in person since before COVID-19, having her prescriptions filled for the last two years.  She knew the respondent and knew him to be really lovely when she met him in person.  After COVID-19 started, her evidence is that the pharmacy moved to providing online-only prescriptions and she placed an order by completing an online link and providing her prescription details.  Her evidence is that the respondent advised her he would arrange to have her medication delivered to her at her unit complex.
  3. [41]
    The respondent subsequently delivered her order to her mailbox.  On this occasion it was split into two small bottles which fitted into her locked mailbox.  She placed a further order on 1 November 2021 by completing an online link and providing her prescription details.  The respondent advised her he would arrange to have her medication delivered to her on 3 November 2021.  When she got home on 3 November 2021 there was no medication in her mailbox.  She says the respondent told her the bottle was too big to fit in the mailbox and he had left it outside the entrance to her unit.[19]  She could not locate it there or anywhere else at the unit complex and sent a text message to the respondent to follow up.
  4. [42]
    The exchanges by text message in the Hearing Brief were as follows from that point.
  5. [43]
    The respondent sent the following texts advising the patient to leave it (the mailbox) locked:[20]

No leave it locked.  I will put them in two small bottles again and push them through

I can’t blve [believe] how bloody unsafe that place is

You guys should complain and hv [have] security cameras installed

Night for now.

  1. [44]
    On Thursday 4 November at 7.11pm, the respondent sent the following text messages to the patient:[21]

Can I please drop your medication off tomorrow

Just a crazy day today

Regards, [respondent’s name]

  1. [45]
    Her reply the same day was to the effect that was ok but queried whether she could pick it up, to which he responded that:[22]

Qld does not allow us to state that. Bcuz [sic] we calling ourselves online pharmacy only.

  1. [46]
    The patient replied to the effect that that was ok, she would be at work but he could leave it in the mailbox and concluded with the word thank you.  He responded with a thumbs up emoji and a smiling face emoji and stated “Trust me its going nowhere but in that letterbox” and she replied “thanks again”.[23]
  2. [47]
    Nonetheless, the respondent sent the patient another series of texts as follows:[24]

Hi young lady.  I [have] run out of damn small containers.  Can I hand this to you please? 

I be about 20 minutes

  1. [48]
    Her response was:

I’m not home.  Is there another way to pick it up?  This process has been really frustrating for both of us, it seems.

You can just staple them in a bag, I don’t care LOL

  1. [49]
    He then replied with the following messages:

Frustrating ha.

Listen do me a favour and try another pharmacy next time. You have some nerve mate

We are delivering your medication for the second fucking time at our own cost

Your ass is frustrated?

Would you like fries with that?

  1. [50]
    The patient replied:

Wow.  No, that's not how I meant it.  I just mean I haven’t been home when you’ve been here and vice versa.  Please don’t speak with me like that.

What a terrible way to speak with people, Jeez.  I would never work with you again.  I’ll make sure no one I know does too.

  1. [51]
    There is evidence in the SMS trail of a photograph with an envelope in an open section of the mailbox and a text from the respondent saying: “It’s in your mailbox.  Do me a favour and find an alternative pharmacy”.[25]  The patient’s evidence is that this occurred on 5 November 2021 and when she returned home later that same day the medication was no longer there and had gone missing.  She made inquiries but there was no CCTV footage of the relevant area.
  2. [52]
    The patient made the complaint to the OHO on 6 November 2021 by telephone.[26] 
  3. [53]
    The respondent’s response in the investigation did not challenge the key events. Rather, he made the points:[27]
    1. he left the first delivery of medication inside her complex behind the main entrance where he had done so safely on a number of previous occasions and she had told him that this was safe;
    2. this was the first time it had happened in sixteen years that he had been a pharmacist; and
    3. he attempted to deliver the second delivery personally but the patient made it continually impossible to do so and he got frustrated because she was providing him with no safe way of delivering the medication.
  4. [54]
    In his response to the Amended Referral the respondent alleged:
    1. the patient was aware of the delivery and made arrangements to be home;
    2. the patient changed the arrangement without notifying the pharmacist and the medicine was left and a message was left for the patient;
    3. the patient claimed the medication was stolen so another medication was made free of charge and delivered;
    4. when the patient disputed the price, it became clear she was being dishonest and wanted a second medication free of charge.
  5. [55]
    It is apparent from the text message exchanges that this position is inconsistent with the contemporaneous documents in that:
    1. at no stage did the patient query the price of the medication;
    2. the second delivery was not bottled in the manner which had been agreed to enable it to be delivered to the locked mailbox, which was the agreed method of delivery and the method which had been used before; and
    3. the messages expressly state that the patient was not at home to enable personal delivery when the practitioner tried to change the manner of the delivery.
  6. [56]
    There is no evidence the patient was being dishonest about not receiving the medication.  The contemporaneous communications are inconsistent with that state of events.
  7. [57]
    The professional assessors advise me and I accept that the medications in question were S 4 medication.
  8. [58]
    I find that the events are as the patient alleges.  I find that:
  1. (a)
    For the first delivery, the respondent failed to safely dispense the medication by leaving the S 4 medication:
  1. (i)
    unattended and in an unsecured area of the patient’s property that is readily accessible by the public, such that it disappeared; and
  1. (ii)
    at the patient’s property without obtaining a written receipt for its delivery.
  1. (b)
    For the second delivery, the respondent failed to safely dispense the medication by leaving the S 4 medication:
  1. (i)
    unattended and in an unsecured area at the respondent’s property that was readily accessible to the public; and
  1. (ii)
    at the patient’s property without obtaining a written receipt for its delivery.
  1. [59]
    Whilst the Amended Referral alleges that the respondent’s actions in relation to the first delivery meant the S 4 medication was stolen, there is no evidence of this.  There is no police report, and there is no evidence of misappropriation by another person with intent to deprive the lawful owner of it.  I am not prepared to find the medication the subject of the first delivery was stolen.
  2. [60]
    By leaving each delivery of S 4 medication unattended in the manner in which it was left, the respondent was in breach of the Medicines and Poisons (Medicines) Regulation 2021 (Qld) (‘Medicines and Poisons Regulation’), which provides at Part 5 of Chapter 4:
  1. Stock not to be left unattended[28]
  1. A carrier must not leave stock of an S 4 or S 8 medication unattended, other than in a secure area.
  1. Delivery to person at street address
  1. (1)
    A carrier must deliver stock of and S 4 or S 8 medicine to the street address stated on the packaging for the stock.
  1. (2)
    The carrier must not leave the stock at the street address unless the carrier obtains a written receipt for the delivery of the stock from —
  1. (a)
    The person named on the packaging for the stock; or
  1. (b)
    An adult at the address acting, or purportedly acting, on behalf of the person mentioned in paragraph (a).
  1. [61]
    Further, by leaving medication in an unsecured area outside the entrance of the patient’s unit and failing to notify her that the medication had been delivered, the respondent’s actions are inconsistent with behavioural standards set out in various codes and guidelines, in that he has not:
    1. practised safely and effectively as required by clause 1.2 of the Code of Conduct;
    2. displayed qualities such as integrity and dependability, as required by clause 1.2 of the Code of Conduct;
    3. maintained a high level of professional competence, as required by clause 2.2 of the Code of Conduct;
    4. engaged in effective communication with the patient, as required by clauses 2.2 and 3.3 of the Code of Conduct;
    5. properly exercised his professional judgment in the interests of the patient, as required by care principle 3 of the Code of Ethics;
    6. promoted professional responsibility and accountability for the handling, supply and storage of therapeutic goods, as required by care principle 3(d) of the Code of Ethics; and
    7. ensured that business practices are conducted primarily in the interests of public health, as required by integrity principle 1(j) of the Code of Ethics.
  2. [62]
    I find that between on or about 3 November 2021 and 5 November 2021, the respondent did not comply with the Medicines and Poisons Regulation and did not meet the standards expected of a registered pharmacist, as set out in the relevant guidelines when dispensing medication in the course of his employment as a pharmacist at the pharmacy in question.

Ground 3 – communication in a manner that was aggressive, intimidating, discourteous, inappropriate or inconsistent with the professional standard

  1. [63]
    This allegation has, as its focus, that between July 2019 and 5 November 2021, his communication with:
    1. the patient’s mother the subject of allegation one (being those set out at paragraph [23]);
    2. the patient the subject of allegation two (being the text messages set out at paragraphs [42] and [51]);
    3. the daughter of another patient; and
    4. personnel at a transport company;

was one or more of aggressive, intimidating, discourteous, inappropriate or inconsistent with the professional standard required by and expected of a registered pharmacist.

  1. [64]
    Turning to the daughter of another patient, who I will refer to as Client A, the relevant factual matters are set out in a written statement and screenshots:
  1. (a)
    Client A’s mother had dementia and in or about August 2019, there were two scripts provided to the pharmacy for medicine being trialled with success in reversing dementia;
  1. (b)
    the respondent quoted Client A’s father verbally $13,000 to fill the prescriptions and asked for a deposit of $5,000 which was paid;
  1. (c)
    after the deposit was paid, the respondent had numerous conversations with Client A’s father, where in each conversation the price increased.  Because of the price increases, Client A said she would call the respondent to find out what was happening.  When she did so, she says he was abusive towards her and he said to her if her father wasn’t happy, he could have a refund of the deposit then he hung up on Client A.  She does not say what the respondent said or how he said it to explain what she means by ‘abusive’;
  1. (d)
    Client A got her father to telephone the respondent and ask for the refund.  The call was on speaker phone and the respondent was swearing and abusive towards Client A’s father.  The respondent said there would be no refund and hung up on Client A’s father;
  1. (e)
    Client A and the respondent exchanged text messages between 16 and 23 August 2019.  Relevant parts of those text messages are set out below[29]:
  1. Client A: Hi [name of respondent], it’s [name of Client A who identifies herself by reference to her parents].  When I tried to call you today to discuss the dispensing of Miglustat you didn’t want to speak to me.  You offered to refund their $5,000 so they would take you up on that offer.  Can you please refund to the following account [account details].  Please email a copy of the bank transfer receipt to [email address].  Thanks for your help and professionalism in resolving this in a timely manner.
  1. Respondent: You are funny.  You must have dementia yourself.  There will be no refunds.  There is an agreement in place and we hv [have] ordered the product as your father asked us to.  The agreed price was $18,000.  The product is non- returnable.  If we do not receive the rest of the amount on Monday we will initiate legal proceedings to recover what is owed to us.  I suggest you guys seek legal advice.
  1. Client A: The price keeps going up and up. So the agreement is no longer valid.
  1. Respondent: You do your thing and I will do what the law tells me to do
  1. The price has never changed from day one.
  1. Your parents will be sued on Monday morning for the $13k remaining
  1. Client A: Oh it was $19,000 yesterday.  Do you actually think that is ethical?  So that’s a profit of around $7,000.  My Dad is happy for you to refund the $5,000 minus $200 to cover costs, so $4,800.  So that’s quite a fair offer.  And return the script.  I’d also appreciate that you don’t make fun of dementia
  1. Respondent: It’s always been 18k.  I am very ethical.  Theres been an agreement and we will stick to that.
  1. Client A: You offered a refund and they want to take you up on that offer.  Why say it if you’re no (sic) prepared to follow through.
  1. Respondent: You are cute.  Lets see how far cuteness will take you in court.
  1. You lie well though i give you that.  [series of laughing emojis]
  1. Client A: I am not a liar!  So we will claim the $5,000 back.  Meanwhile the court process will mean the stock is sitting idle possibly going out of date.  So then you lose the cost of the stock by not returning it for a refund.  That’s very smart.
  1. You offered a refund and they accept that offer.  Please refund to bank account as advised.
  1. Respondent: [rude emoji showing middle finder].  I have another idea.  Your father will pay $13k remaining plus my lawyers fee.
  1. Let’s see who wins.
  1. (f)
    On each of Monday 19 August 2019, Thursday 23 August 2019 and Friday 24 August 2019, Client A sent a message asking for the refund and to post the script back to them.  In the second and third messages, Client A writes that the supplier has confirmed it has processed the credit.
  1. (g)
    There is no reply to these messages.
  1. (h)
    On 18 September 2019, Client A sent another text message to the respondent advising of her mother’s deterioration, that a complaint had been lodged with Ahpra and asking for the refund of the $5,000.[30]  There was no response to that message.
  1. (i)
    Client A had a further attempt to obtain a refund of the deposit monies by sending a text message dated 17 December 2019 to the respondent appealing to the spirit of Christmas and to see if he had had a change of heart.[31]
  1. [65]
    In his response to the Amended Referral, the respondent stated that Client A called him to say that her father did not want to go ahead with the order and wanted his $5,000 back.  He states that he told Client A that it was too late to cancel now, and that he claims that he gave them the opportunity to cancel earlier which they rejected.  He stated that he had paid for the order and it had been delivered.
  2. [66]
    In his earlier submissions in the Ahpra investigation, set out in solicitor’s correspondence which is expressly cast as being ‘on instructions’[32], the respondent:
    1. states the cost of the medication to the pharmacy was approximately $13,750.  The medicine to be supplied for that price was 100 mg tablets and they had to be compounded into approximately 5,000 2mg capsules;
    2. the only price ever quoted by the respondent was $18,000, with a deposit of $5,000 which was paid on about 29 July 2019.  Any allegation that he said the price was $19,000 was untrue;
    3. on about 30 July 2019, he placed the order for the medication and it was delivered to the pharmacy on about 15 August 2019;
    4. he received calls from Client A and her father in the period between the placing of the order and its delivery from the supplier.  During those calls he explained the delay in supply, they accused him of lying to them about the delay and he said to them words to the effect that the supplier had not delivered the medication; if they wanted to find another compounding pharmacy who can fill the script sooner they could, he could cancel the order with the supplier prior to delivery and he would provide them a refund.  They said they did not want to cancel the order;
    5. the respondent denies he was abusive or swearing;
    6. the medication was delivered on 15 August 2019.  The respondent informed either Client A or her father of this and asked for payment of a further $5,000;
    7. soon after this Client A telephoned him, said they did not want to go through with the order and they wanted to be refunded the $5,000.  He told her that it was too late to cancel now.  He had given the opportunity to cancel earlier and she had said they did not want a refund.  He had paid for the order with the supplier and it had been delivered;
    8. the offer reflected in the text messages was an offer for a refund prior to delivery of the medication and was conditional on the offer being accepted before the medication was provided by the supplier.
  3. [67]
    Accompanying his submissions in the investigation, the respondent offered a written apology,[33] having reflected on the contents of his text message and he stated he regarded the return of the deposit as a commercial/contractual  matter.
  4. [68]
    In a subsequent written submission through his solicitors, the respondent stated that the cost of the medication to the pharmacy was $13,750, to compound the medication into the approximate 5,000 capsules would take a pharmacist about 3-4 full working days to do and it was implausible that he would have quoted $13,000 for the medication in those circumstances.[34]
  5. [69]
    The invoice from the supplier for the medication for Client A’s mother:
    1. is dated 23 August 2019 and is for $12,276.00 (including GST); and
    2. refers to a ‘Customer PO’ dated 5 August 2019[35].
  6. [70]
    The Board submits that Client A’s evidence should be accepted because:
    1. given the wholesale cost of the medication for $12,276, the respondent would be making a profit if he sold it for $13,000.  It is therefore not implausible that the original price quoted was $13,000.  The Tribunal is not persuaded by this submission.  In addition to the labour that would have been involved in the compounding, the respondent would have had to provide materials to enable the compounding to occur.  The difference in price is not such that the Tribunal is prepared to draw the inference the Board contends for;
    2. the date of the invoice for the supply is well after the initial requests from Client A and her father for the return of the deposit of $5,000; and
    3. Client A’s text messages establish that the deposit was refunded by the supplier to the pharmacy, so the respondent’s position that he could not get a refund was untenable.
  7. [71]
    The latter two submissions are consistent with the contemporaneous record and the Tribunal accepts them.  The relevant aspect of this ground is however, about the respondent’s communication.  The rude emoticon, accusing a person of having dementia in the circumstances where the medication was for dementia for the client’s mother and calling the client a liar as has occurred is unprofessional communication, even in the context of a commercial dispute about the price of the drugs.
  8. [72]
    The final factual area in this ground of the Amended Referral relates to communications with staff from a transport company which was delivering tiles to his home.
  9. [73]
    A director of the company has provided a statement in which she sets out that:
  1. (a)
    her company provided transport and warehousing of goods to the respondent in March and April 2021;
  1. (b)
    the respondent had engaged their services to arrange for some tiles to be transported to his personal residential property on 17 March 2021;
  1. (c)
    during the delivery on that day, the respondent was verbally abusive to her drivers and forced a driver to bring the truck and delivery onto his property, contrary to the usual process which is that the tiles are onloaded at the front of the property with trucks not entering due to their size.  On the day in question, having entered the respondent’s property, the truck got bogged and had to be removed by a Franna crane, at an extra expense to the respondent;
  1. (d)
    the company then had ongoing issues with the respondent refusing to pay his bill of $400.40 for the transport;
  1. (e)
    she personally had a number of telephone conversations with the respondent in March and April 2021 where the respondent called her offensive names such as “bitch” and “whore”.  As a result of ongoing abuse, she blocked the respondent’s calls;
  1. (f)
    email communications seeking to have the respondent pay his bill produced emails in response which contained statements such as:[36]
  1. (i)
    On 13 April 2021: “You incompetent motherfuckers.  You guys should not have a permit for what you do. I have never dealt with anyone this incompetent.  Shove that invoice up ur [sic] assess motherfuckers”; and
  1. (ii)
    After being informed the matter had been reported to Ahpra and the police and the company would be lodging a claim in QCAT, the following: “One more thing you incompetent MORONS, the police part was just too funny. It made me laugh hard. You MORONS are cute”;
  1. (iii)
    On 15 April 2021: “I can’t help but notice how low your IQ is.  But you seem to question my education buddy.  Do you have ANY education? Listen you are the most incompetent MORON I (sic) have ever dealt with.  You can’t transport the most simple cargo which you have taken responsibility for.  But you do question my education.  You funny guy.  You trying very hard, you trying too hard.  But hey you let all the people you think they should know about it and give them my details.  You make me laugh. Not because you are funny, but because you are probably the dumbest bloke I (sic) have ever done businuss (sic) with”; and
  1. (iv)
    a bit later that same day: “IM (sic) YOUR DADDY”.
  1. (g)
    once the matter was before QCAT, on the day of the hearing, the complainant says the respondent displayed offensive behaviour to her and her husband, calling her a ‘fucking bitch” and him a “whore master”.  The security guard intervened on two occasions to control the respondent.  QCAT ordered him to pay the invoice and payment occurred;
  1. (h)
    in her time in the industry over sixteen years she had never dealt with a customer such as the respondent who was abusive in such a persistent and aggressive manner over a period of months; and
  1. (i)
    she knew the respondent was a pharmacist and considered the public had trust in pharmacists to act in a courteous and professional manner at all times, which is why she referred his offensive behaviour to Ahpra.
  1. [74]
    During the investigation the respondent told the Ahpra personnel that this was a complaint about his tiler, who stuffed up his delivery to his new house and broke some of the tiles and the cabinets were not delivered on time.  He queried what this had to do with his role as a pharmacist as this was all in his personal life.[37]
  2. [75]
    In the written response he repeated these sentiments and also stated:[38]

I was abusing them because they deserve it and I do the exact same thing today and in the future. 

However this has nothing to do with AHPRA as this is a private matter … and because it is a private matter it is not within the jurisdiction of AHPRA.

  1. [76]
    As the respondent admits being abusive and does not dispute the details of his conduct alleged in respect of the workers or directors of the transport company on the day of the delivery or in the subsequent commercial dispute, including the QCAT hearing, I find the facts alleged in the referral are established.

How should the Tribunal characterise the practitioner’s conduct?

  1. [77]
    Section 5 of the National Law includes a definition of professional misconduct by a registered health practitioner as including:
    1. unprofessional conduct by the practitioner which is conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
    2. more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of raining or experience; and
    3. 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.
  2. [78]
    In turn, unprofessional conduct is defined as professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers.
  3. [79]
    I have found allegation one substantiated, in that I have found that on or about 8 September 2021, the respondent did not meet the standards expected of a registered pharmacist, as set out in relevant guidelines, when dispensing medication for the patient child.
  4. [80]
    I have found allegation two substantiated in that I have found the respondent did not comply with the Medicines and Poisons Regulation and did not meet the standards expected of a registered pharmacist, as set out in relevant guidelines when dispensing medication in respect of the patient concerned.
  5. [81]
    I have found allegation three substantiated, in that the communications with three customers and the supplier of tiles occurred as they alleged. 
  6. [82]
    The Board submits that the conduct involved in allegation one is substantially below the standard expected of a practitioner of the respondent’s level of training and experience, particularly where it concerns the dispensing of S 8 medication without reference to the corresponding prescription.[39]  The Tribunal accepts that submission and notes that to fail to properly label serious medication for a child is a very concerning situation.  To further fail to provide counselling and communication to the child’s parents about the medication demonstrates a fundamental lack of understanding of the role of a professional pharmacist in the proper and safe dispensing of medication. 
  7. [83]
    The Board submits the conduct involved in allegation two is substantially below the standard expected of a practitioner of the respondent’s level of training and experience, particularly where he failed to comply with applicable legislation, industry standards and codes of conduct and ethics.[40]  The Tribunal accepts this submission.  Leaving medication in an unsecured area on not one but two occasions and failing to obtain the written acknowledgments required by the Drugs and Poisons Regulation are significant shortcomings in professional practice.
  8. [84]
    I deal now with allegation three.
  9. [85]
    The Board submits and I accept that the conduct involved in allegation three, which related to communications with the patients and persons referred to in allegations one and two, when taken together is conduct substantially below the standard expected of a practitioner of the respondent’s level of training and experience[41] and that the threatening and intimidating behaviour can be appropriately categorised as professional misconduct.[42]
  10. [86]
    The Board further submits and I accept that the conduct which involves Client A and which forms part of allegation three is substantially below the standard expected of a practitioner of the respondent’s level of training and experience.[43]
  11. [87]
    The Board submits that the practitioner’s conduct which involves the staff from a transport company is conduct which is substantially below the standard expected of a practitioner of the respondent’s level of training and experience.[44]  Inherent in such a submission is, by reference to the definition of ‘professional misconduct’ in the National Law, a submission that this conduct is ‘unprofessional conduct’ which too is defined in the National Law.  It is thus defined:

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers and includes…

(emphasis added)

  1. [88]
    There are eight sub-paragraphs of conduct set out in the inclusive definition.
  2. [89]
    To come within this submission as put by the Board, the established conduct which involves how the practitioner communicated with a supplier delivering tiles to his home for a personal project must therefore be ‘professional conduct’ and then conduct below the standard the definition refers to.  As noted in Pharmacy Board of Australia v Amurao [2025] QCAT 100 (‘Amurao’), a recent decision of the Tribunal (coincidentally also involving a pharmacist):[45]
    1. ‘professional conduct’ must receive its ordinary meaning seen in the broader context of the National Law and it is potentially embraced by the definition, however, private conduct, which is conduct not associated with the practice of the health profession is not; and
    2. There should not be a narrow interpretation of conduct which has a connection with the practice of the health practitioner’s profession as the phrase occurs in a broader context, where the primary guiding principles of the scheme created by the National Law are “protection of the public … and public confidence in the safety of services provided by registered health practitioners”.
  3. [90]
    As the Tribunal recognised in Amurao, however, whilst established conduct may not be ‘professional conduct’, it may, depending on its character, be conduct of the practitioner, whether occurring within the practice of the profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.[46]
  4. [91]
    In this case the complainant’s evidence is:[47]
    1. the company provided transport and warehousing of goods, following a quote, to the practitioner in March 2021;
    2. the practitioner gave the business his pharmaceutical practice details at the initial quote; and
    3. her opinion is that by his conduct, he is sullying the image of the profession which he represents.  
  5. [92]
    Usually, such an opinion would be inadmissible.  Acknowledging that this is no doubt a genuinely held opinion and accepting that the Tribunal is not bound by the rules of evidence, I am not inclined to give it weight.
  6. [93]
    The respondent, in the investigation, stated this was a private matter about them building their house.  The transport company destroyed the tiles for their home and did not deliver the cabinets.  They delayed the build for more than one month.[48]
  7. [94]
    The emails which the respondent has sent appear to have been sent from a mobile device as they bear the notation “from my Galaxy”.  There is no footer or other aspect identifying them as coming from a pharmacy.  The subject line is “SCS Invoice warehousing fees”.  As the email address from which they have been sent has been redacted in every copy of them in the Hearing Brief, it is not possible to determine whether they have originated from a pharmacy email address.
  8. [95]
    The respondent’s conduct as is evidenced by the complainant’s written statement, the emails in evidence and his own admission is deplorable.  His communications by email are argumentative, foul mouthed and rude.  His oral communications which I have found substantiated fall into the same category.  Doubtless he was frustrated with whatever he perceived to be shortcomings in the services provided, although I note he was ordered to pay the outstanding invoice and, once judgment was obtained against him, he did so.  His statements that he would behave the exact same way in the future suggest a righteousness and a lack of awareness of the impact of his communications on others which is most concerning.
  9. [96]
    In all the circumstances, however, I am not satisfied that the respondent’s conduct in respect of the transport company’s directors and shareholders has the necessary connection with his practice of the profession.  The only aspect in which the profession came into things was contact details on a quote.  Thus, I am not satisfied it is ‘professional conduct’, so as to constitute ‘unprofessional conduct’ as the Board submits.
  10. [97]
    That is not, however, the end of the matter.  “Professional misconduct” is also defined in the National Law 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.

  1. [98]
    The Board makes a submission that taken together, the respondent’s conduct in allegation three amounts to professional misconduct.[49]  In my view the respondent’s conduct towards the directors and employees of the transport company is conduct which goes, generally, to whether he is a fit and proper person to hold registration in the profession, an assessment I have to make as at the date of this determination.  Taking it with the other conduct in allegation three, which I have found constitutes unprofessional conduct, this additional conduct demonstrates the respondent’s behaviour, both in a professional context and outside of it, his dealing with other people lacks temperance, insight and understanding of the impact of his behaviour on others.  This goes to the essence of what may mark him as a person who is fit and proper to hold registration.  I am satisfied that the respondent’s conduct, taken overall in respect of this allegation, is conduct which is professional misconduct within the meaning of (c) of that term in the definition.

What orders are appropriate for the conduct that has been established?

  1. [99]
    The purpose of a sanction is to protect the public; it is not to punish the practitioner[50] (although a practitioner may experience a protective action as a punishment, in the sense of negative consequences towards them).  The Tribunal’s disciplinary jurisdiction is exercised for the paramount purpose of protecting the health and safety of the public[51] and the protection of the reputation of the profession in the public mind. 
  2. [100]
    There are well established considerations for the Tribunal on a disciplinary referral:[52]
    1. preventing practitioners who are unfit to practice from practising;
    2. bringing home to the practitioner the seriousness of their conduct;
    3. deterring the practitioner from future departure from appropriate standards or others who might be minded to act in a similar way; and
    4. imposing restrictions on the practitioner’s right to practice to ensure public protection.
  3. [101]
    An assessment of ongoing risk posed by the practitioner is essential to any determination of sanction.  In performing that assessment, the degree to which the practitioner has acquired insight will be relevant.[53]
  4. [102]
    Having decided that the practitioner has behaved in a way that constitutes professional misconduct, the Tribunal has a wide discretion to impose sanctions ranging from a caution or a reprimand of the practitioner to cancellation of registration.[54] 
  5. [103]
    The Tribunal will consider a range of factors in a given case including the nature and seriousness of the alleged conduct, the extent to which the practitioner has shown contrition, insight or remorse for their conduct, the need for general or specific deterrence, evidence of rehabilitation and otherwise good character, including co-operation with the disciplinary process and the regulator and any mitigating factors which are personal to the practitioner. 
  6. [104]
    In this case, the Tribunal accepts the Board’s submissions that:
  1. (a)
    the failures across the grounds of this referral are multifaceted and repeated;
  1. (b)
    there is no evidence that the respondent has taken any steps to ensure his conduct or behaviours would not be repeated or that he has reformed his character in any way.  The Tribunal notes that when last before it, the respondent referred to these proceedings as a ‘parody’ and ‘wasting taxpayers’ money’[55].  Those matters confirm the total lack of insight the respondent has into the magnitude of shortcomings in his conduct over time or the responsibilities that come with being a member of a registered health profession;
  1. (c)
    the respondent has not demonstrated any real remorse.  Whilst there is a written apology letter dated in December 2019 proffered in respect of Client A, its terms are extremely generic.  More tellingly, perhaps, he continued to engage in extremely intemperate communications after that time in his professional communications, as is evidenced by the matters set out concerning the persons in each of allegations one and two (in 2021).  Further, in relation to the transport company, he has asserted that he would continue to act the way he had done into the future.  He further stated, in his “final response” in the investigation in February 2022, matters including:[56]
  1. (i)
    that “Australians are the nastiest people [he has] ever dealt with in his life.  By far the most racist, disrespectful, entitled”; and
  1. (ii)
    that Australia is “A NASTY COUNTRY TO WORK IN”.
  1. (d)
    that his misconduct cannot be simply explained as an error of judgment but includes repeated behaviours, despite previous disciplinary action and education.  Rather, it appears his communication style is an ingrained trait and a significant defect in his character. 
  1. [105]
    The respondent is not currently registered as a pharmacist.  The Tribunal’s decision in Health Ombudsman v RKE [2024] QCAT 290 (‘PBS Referral Decision’) cancelled his registration and imposed a period of disqualification which, when taken with time he had already been suspended, constituted a total disqualification period of nine years.  Accepting that the conduct in this referral is of a different character from that in the PBS Referral Decision, it all occurred whilst he was committing the fraud on the Pharmaceutical Benefits Scheme, other than the conduct in relation to the transport company, which occurred subsequent to the fraud and which I have found is not ‘professional conduct’.  That this referral proceeded after the referrals in the PBS Referral Decision was largely a matter of practical convenience, given the referrals involved different applicants and the respondent did not dispute the conduct the subject of the PBS Referral Decision, but initially maintained he disputed large amounts of the allegations in this proceeding.
  2. [106]
    The Board seeks:[57]
    1. a reprimand pursuant to section 196(2)(a) of the National Law; and
    2. that the respondent be disqualified from applying for registration for a period of six months pursuant to section 196(4)(a) of the National Law cumulative with the current disqualification period ordered in the PBS Referral Decision.
  3. [107]
    It notes his extensive disciplinary history for inappropriate and abusive communications with others, submitting that the pattern of behaviour has continued despite his undertaking education and working with a mentor.[58] 
  4. [108]
    It also submits that, had this referral been head at the same time as the PBS Referral Decision, the disqualification period imposed would have been longer.[59]
  5. [109]
    The Board’s submissions do not articulate where the Tribunal’s power arises to impose a cumulative sanction on a practitioner whose registration has already been cancelled.  The statutory power which is conferred is that in s 196(2)(a) of the National Law, which is a power to “disqualify the person from applying for registration as a registered health practitioner for a specified period”.  “Specified period” is not defined in Schedule 7 of the National Law.  There is no decision of the Tribunal which deals with the Tribunal’s power to impose a cumulative penalty in a health matter that I have been able to locate.
  6. [110]
    This matter was heard on the papers, and in those circumstances the Tribunal has not had the benefit of submissions from the Board which may persuade it that it has such a power.
  7. [111]
    The Board has provided two authorities where tribunals in other states have imposed a cumulative period of disqualification on a practitioner.[60]  I have read them carefully.  Notably neither authority articulates the basis of the power of the Tribunal to impose a cumulative sanction.[61]  In Datta the Tribunal expressed the view that had the conduct before it formed part of the determination of the earlier complaints, the disqualification period would have been more than four (4) years.[62] In Dhillon the practitioner was serving a two year and six month period of disqualification for conduct described as ‘demonstrative of dishonesty in a range of professional contexts’  and had let his registration lapse. The offending conduct being dealt with was that he had been convicted of three counts of fraud (related to loans for equipment in the dental practice) and failed to report this to the Board. Significantly, he was charged with the three offences a couple of months after he had been personally served with an application for disciplinary proceedings brought by the Board for failing to disclose other earlier criminal charges and convictions; he was thus on notice of his obligations under the National Law and again failed to meet them.   The Tribunal observed that had the practitioner been registered it would have cancelled his registration and if he had not been presently disqualified it would have imposed a period of four (4) years disqualification.[63]  That is a much longer disqualification period than he was already serving; the Tribunal moderated it to three years – giving him an effective disqualification period of five and a half years in total.
  8. [112]
    It is not necessary for me to decide whether the Tribunal has power to impose a cumulative sanction in this matter.  This is because I am satisfied that the very lengthy disqualification period already imposed in the PBS Referral Decision is appropriate to reflect the conduct the subject of this referral, almost all of which occurred during the period that the offending in the PBS Referral Decision occurred. I appreciate the conduct is of a different character from that dealt with in the PBS Referral Decision. However, the disqualification period in the PBS Referral Decision is very lengthy. To impose an additional short period of disqualification, in the face of the already very lengthy period of disqualification imposed, is not necessary for public protection or to protect the reputation of the profession in the public’s mind.  To impose a cumulative sanction in this particular case, would, in my view, be punitive.
  9. [113]
    I indicate, for the benefit of the Board in considering any application for registration the practitioner may make at the end of the lengthy disqualification period, that if this referral had proceeded on its own, and without the PBS Referral Decision, the multifaceted nature of the respondent’s conduct, in conjunction with his prior history of poor communication with others and his total lack of insight,  is such that I would have cancelled the respondent’s registration and imposed a disqualification period of in the order of six to twelve months.
  10. [114]
    A reprimand is not a trivial penalty.[64]  The Tribunal will impose a reprimand to mark the seriousness of the conduct.
  11. [115]
    As I determined in the PBS Referral Decision that a non-publication order was required to comply with the requirements of the Domestic and Family Violence Protection Act 2012 (Qld), and as the PBS Referral Decision is referred to in these reasons, to ensure that non-publication order is not rendered otiose, I will make a non-publication order in this matter in the same terms as in the PBS Referral Decision.
  12. [116]
    I thank the assessors for their thoughtful assistance in the determination of this referral.

Footnotes

[1] Health Ombudsman v RKE [2024] QCAT 290 (‘PBS Referral Decision’).

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 10(1)(b) (‘QCAT Act’).

[3]  (1938) 60 CLR 336.

[4]  QCAT Act (n 2) s 28(3)(a).

[5]  Ibid s 28(3)(b).

[6]  Ibid s 28(3)(c).

[7] Health Practitioner Regulation National Law (Queensland) s 41 (‘National Law’).

[8]  Hearing Brief filed on 21 February 2025 pp 205-207 (‘HB’).

[9]  Effective from June 2022.

[10]  HB (n 8) p 127.

[11]  Ibid p 130.

[12]  Ibid p 124.

[13]  Ibid p 125.

[14]  Ibid p 126.

[15]  Ibid p 128.

[16]  A copy of the review is in evidence: Ibid p 129. 

[17]  Ibid p 134.

[18]  Ibid p 99.

[19]  In her initial complaint to the OHO, she said the respondent told her he had left the medication “outside the main door to my apartment building”: Ibid p 111.

[20]  Ibid p 146.

[21]  Ibid p 146.

[22]  Ibid p 146.

[23]  Ibid p 147.

[24]  Ibid pp 148-149.

[25]  Ibid p 150.

[26]  Ibid pp 108-111.

[27]  Ibid p 329.

[28] Medicines and Poisons (Medicines) Regulation 2021 (Qld) r 77.

[29]  The screen shots of the messages are at HB (n 8) pp 163-167.

[30]  Ibid pp 171-173.

[31]  Ibid p 170.

[32]  Ibid pp 199-201.

[33]  See ibid p 202 for the signed apology letter.  It related to text messages he sent on 16 August 2019 and he “offered my apologies for any hurt caused to you and your family”.

[34]  Ibid p 212.

[35]  Ibid p 151.

[36]  The emails containing the statements at (a) and (b) are in evidence at ibid pp 116-119.  Those containing the other statements are at ibid pp 179-180. 

[37]  Ibid p 314.

[38]  Ibid p 328.

[39]  Ibid p 15.

[40]  Ibid p 18.

[41]  Ibid p 19.

[42]  Ibid pp 20-21.

[43]  Ibid pp 23-24.

[44]  Ibid p 27.

[45] Pharmacy Board of Australia v Amurao [2025] QCAT 100 [193]-[194].

[46]  Ibid [197]-[198] and the authority referred to in those paragraphs.

[47]  HB (n 8) p 175.

[48]  Ibid p 328.

[49]  Ibid p 27.

[50] Craig v The Medical Board of South Australia (2001) 79 SASR 545, 554 (‘Craig’).

[51]  National Law (n 7) s 3A.

[52] Craig (n 50) 553- 555.

[53] Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 391 [71] (‘Lockie’), citing Medical Board of Australia v Bromeley [2018] QCAT 163 [142]. 

[54] Lockie (n 53) [45].   

[55]  Transcript of proceedings, 1 November 2024 1-7 [24]-[25].

[56]  HB (n 8) p 322.

[57]  Ibid p 28.

[58]  Ibid p 28.

[59]  Ibid p 32.

[60] Medical Board of Australia v Datta (Review and Regulation) (Corrected) [2024] VCAT 28 (‘Datta’); Dental Board of Australia v Dhillon [2018] WASAT 107 (‘Dhillon’).

[61] Datta (n 60) [80]; Dhillon (n 60) [33]-[35].

[62] Datta (n 60) [81]. The case involved a boundary violation towards the mother of a child patient at the end of a consultation. The earlier case had involved claims of like boundary violations towards other patients, two of which were proven and two of which were not, at about the same time. The practitioner had not been registered for approximately seven years and medical evidence was to the effect he was unlikely to work again.

[63]  Dhillon (n 60) [34] - [35].

[64] Psychology Board of Australia v Cameron [2015] QCAT 227 [25].

Close

Editorial Notes

  • Published Case Name:

    Pharmacy Board of Australia v RKE

  • Shortened Case Name:

    Pharmacy Board of Australia v RKE

  • MNC:

    [2025] QCAT 158

  • Court:

    QCAT

  • Judge(s):

    Judge Dann, Deputy President

  • Date:

    27 May 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
2 citations
Jump To
Cite 1 - (2001) 79 SASR 545
Cite 2 - (2001) 79 SASR 545
Health Ombudsman v RKE [2024] QCAT 290
3 citations
Jump To
Cite 1 - [2024] QCAT 290
Cite 2 - [2024] QCAT 290
Cite 3 - [2024] QCAT 290
Medical Board of Australia v Blomeley [2018] QCAT 163
2 citations
Jump To
Cite 1 - [2018] QCAT 163
Cite 2 - [2018] QCAT 163
Nursing and Midwifery Board of Australia v Lockie [2022] QCAT 391
2 citations
Jump To
Cite 1 - [2022] QCAT 391
Cite 2 - [2022] QCAT 391
Pharmacy Board of Australia v Amurao [2025] QCAT 100
3 citations
Jump To
Cite 1 - [2025] QCAT 100
Cite 2 - [2025] QCAT 100
Cite 3 - [2025] QCAT 100
Psychology Board of Australia v Cameron [2015] QCAT 227
2 citations
Jump To
Cite 1 - [2015] QCAT 227
Cite 2 - [2015] QCAT 227

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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