Health Ombudsman v Jones[2025] QCAT 45

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Two issues confront the Tribunal in this referral by the Health Ombudsman which relates to conduct engaged in by a pharmacist, Mr Jones: 

   1. Firstly, does the Tribunal agree with the joint position of the parties that the relevant conduct is “professional misconduct” as defined in the National Law?^[1] 
   2. Secondly, if the conduct is properly so categorised, are the agreed sanctions appropriate?

What conduct is alleged?

2. [2]
   The relevant conduct occurred over an approximately two-year period between January 2017 and December 2018, more than 30 years after Mr Jones graduated from the University of Queensland as a pharmacist.
3. [3]
   During this two-year period, Mr Jones worked at a pharmacy Monday to Wednesday.  Relevantly, another pharmacist, Ms S, worked at the pharmacy from Thursday to Sunday.  It is alleged (and agreed) that Mr Jones “had access to the complete dispensing records for all patients of the pharmacy” and, by reason of that fact, Mr Jones “was aware, or ought to have been aware of the medications dispensed” by Ms S to patients named in the referral.^[2]  
4. [4]
   There are four allegations made against Mr Jones.  They are described broadly as: dispensing Schedule 4 drugs^[3] without a prescription; making false or misleading electronic dispensing records; unsafe dispensing; and failure to make or maintain accurate dispensing records.
5. [5]
   The first allegation concerns two patients, JC and TD.  On some 30 occasions during the period earlier referred to JC was prescribed Stilnox where there was no valid prescription or repeat, or in quantities or dosages no prescribed or authorised.  TD was prescribed Zolpidem GH tablets without a valid prescription or repeat on 15 occasions in 2017. 
6. [6]
   The second allegation is that in each of the instances just referred to, Mr Jones knowingly created an entry in the pharmacy’s electronic database which falsely recorded that each drug was lawfully prescribed.
7. [7]
   The allegation of unsafe dispensing relates to five separate patients.
8. [8]
   JC presented prescriptions from multiple prescribing practitioners.  Nearly 14,000 Stilnox 12.5 tablets were prescribed over the 2017/2018 period – an average of 19 per day over a total of 257 occasions (156 by Mr Jones; 101 by Ms S).  By way of example, the drug was prescribed twice on the same day on five occasions and on two consecutive days on 19 occasions.  The recommended daily dose is two tablets and JC’s prescription was for not more than two tablets at night when necessary. 
9. [9]
   JC was also dispensed Diazepam in, it is agreed, “a frequency and quantity that was excessive”.^[4]  Dispensing that drug also occurred twice on the same day on multiple occasions. 
10. [10]
    Alprazolam is a benzodiazepine and a Schedule 8 drug.^[5]  On 25 July 2017 and 18 October 2017, 100 tablets of the drug were dispensed to JC.  On the same day, 200 tablets of Diazepam, another benzodiazepine, was dispensed.  Dispensing both benzodiazepines in such close proximity increases a patient’s risk of tolerance of that form of drug, dependence on same or overdose.
11. [11]
    Similar allegations are made in respect of the patients SL, CH, TD and SD.  Drugs were dispensed with a frequency and in a dosage that was excessive.  Again, some of the drugs were dispensed by Ms S.  Doing so also increased a risk of harm to those patients through tolerance and dependence.  In CH’s case, Mr Jones knew or ought to have known that she was a person with a history of opiate dependence. 
12. [12]
    The fourth allegation against Mr Jones relates to a failure to maintain accurate dispensing records, specifically by failing to record the prescribing doctor’s full name.

How should the conduct be classified?

13. [13]
    Mr Jones is represented by solicitors who have prepared material for the Tribunal including a statement of agreed facts.  On his behalf, it is agreed that the conduct the subject of all four allegations constitutes professional misconduct. The Tribunal is obliged to assess the evidence and arrive at its own conclusion in that respect.
14. [14]
    Reference is made to Code of Conduct for Pharmacists (17 March 2014) and to the Guidelines for Dispensing Medicines 2015.  Each provides evidence^[6] in respect of the central question as to whether the instant conduct “is of a lesser standard than that which reasonably be expected of [a pharmacist] by the public or the practitioner’s professional peers”.^[7]
15. [15]
    The dispensing of dangerous drugs is properly restricted by legislation.  Dispensing those drugs in accordance with valid prescriptions and in a manner consistent with patients’ safety is entrusted to pharmacists.   The responsibilities inherent in that trust are onerous so as to ensure the health of patients receiving drugs and the public more broadly. 
16. [16]
    The dispensing of the drugs referred to in the allegations and the circumstances in which they were dispensed, including in the absence of a valid prescription, constitutes a breach of that trust.  The conduct falls below the standards laid out in the code of conduct and the dispensing guidelines. 
17. [17]
    The professional members of this Tribunal agree that the conduct does not meet the standard reasonably expected of pharmacists.  Both lay and professional members of this Tribunal agree the conduct falls below the standard reasonably to be expected of pharmacists by the public.
18. [18]
    The conduct alleged and admitted plainly constitutes “unprofessional conduct” as defined.
19. [19]
    Taken together, the conduct alleged and admitted had the potential to cause significant harm to the people to whom they were dispensed.  Mr Jones is an experienced pharmacist.  Dispensing the specified drugs in the circumstances earlier outlined a serious breach of the standards expected of pharmacists and the trust reposed in them.
20. [20]
    Mr Jones’ unprofessional conduct falls “substantially below the standard reasonably expected of a registered [pharmacist] of an equivalent level of training or experience.”^[8]  The parties’ agreement that the conduct is “professional misconduct” as defined is properly made. 
21. [21]
    The Tribunal finds that Mr Jones has engaged in professional misconduct by reason of the conduct set out in the four allegations against him.

What sanctions are appropriate?

22. [22]
    As has been foreshadowed, the parties are also agreed on the sanctions that should flow from the finding of professional misconduct.
23. [23]
    The orders they propose are as follows:

    1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’), the respondent has behaved in a way that constitutes professional misconduct;
    2. Pursuant to section 107(3)(a) of the HO Act, the respondent is reprimanded;
    3. Pursuant to section 107(3)(d) of the HO Act, the respondent’s registration is suspended for a period of four (4) months;
    4. Pursuant to section 107(3)(b) of the HO Act, the following conditions are imposed on the respondent’s registration:
       1. (i)
          The respondent must, upon returning to practice following the period of suspension, undergo a period of mentoring for at least two (2) hours each month for a period of twelve (12) months.
       1. (ii)
          The mentoring must be face to face (which includes by way of Microsoft Teams or similar) and focus on ethical dispensing and decision-making.
       1. (iii)
          The respondent must nominate, for approval by the Pharmacy Board of Australia (‘Board’), a mentor who is a senior pharmacist practising in an accredited pharmacy. The mentor must provide a written report to the Board every three (3) months and upon completion of the mentoring period.
       1. (iv)
          The respondent must, within twelve (12) months of these conditions commencing, complete and achieve a pass mark for the course, Ethics and Dispensing in Pharmacy Practice – run by the Pharmaceutical Society of Australia or if not available, another similar course approved by the Board.
       1. (v)
          At completion of the course, the respondent must submit to the Board documentary evidence certifying his completion of it.
       1. (v)
          The respondent is responsible for paying all costs associated with compliance of these conditions.
       1. (vi)
          The respondent must not practise as a principal or owner of a pharmacy.
    5. Part 7, Division 11, Subdivision 2 of the Health Practitioner Regulation National Law (Queensland) applies to the conditions imposed by this decision.
    6. The review period for the above conditions is twelve (12) months from the date of this order.
    7. There be no order as to costs.
    8. The existing non-publication order issued by the Tribunal on 29 July 2022 remains in place.

Applicable principles

24. [24]
    The principles applicable to the imposition of sanction are not in doubt and arise from a number of decisions of this and other tribunals in which they can be seen formulated or applied.   They should briefly be referred to.
25. [25]
    The purpose of sanctions is protective and not punitive.  Punishment is not the aim of sanctions imposed by the Tribunal, although it may be an effect of them.^[9]  The health and safety of the public is the paramount consideration.^[10]
26. [26]
    Protecting the health and safety of the public includes addressing a risk of the same or similar conduct being perpetrated by the particular practitioner in the future.   That aspect of sanction is ubiquitously referred to as ‘specific deterrence’.
27. [27]
    Sanctions directed to protecting the health and safety of the public also have a broader purpose. The HO Act’s primary consideration also embraces upholding public confidence in the standards of the profession^[11] and maintaining that confidence can include, for example “… making it clear that certain conduct is not acceptable”.^[12]
28. [28]
    Denouncing misconduct:^[13]

operates both as a deterrent to the individual concerned as well as the general body of practitioners.  It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice.

29. [29]
    That complementary component of sanction is ubiquitously referred to as ‘general deterrence’.
30. [30]
    Regard can be had to comparable cases with a view to ensuring that the sanction imposed on a particular individual is not out of step with protective sanctions imposed in cases with comparable circumstances, and also as an attempt to maintain a measure of consistency in the role of sanctions in maintaining proper professional standards.
31. [31]
    Regard should also be had to the principle entrenched in earlier decisions of the Tribunal that an agreement reached between parties properly advised as to the law and their circumstances should not lightly be departed from.^[14]
32. [32]
    Ultimately each case falls to be considered by reference to its own facts and circumstances posited within those broad principles.

The instant circumstances

33. [33]
    The parties’ agreement both as to the relevant facts and the outcomes deriving therefrom is commendable as is the brevity of the agreed bundle of material relevant to the hearing. 
34. [34]
    That material does not however reveal the broader context in which the conduct occurred.  For example, it is not known what factor or factors motivated Mr Jones’ conduct.  More broadly, his personal circumstances at the time of the conduct are not referred to. 
35. [35]
    Neither, save for conduct resulting in two investigations by Ahpra to be referred to below, is the Tribunal told of Mr Jones’ personal and professional circumstances in the six to seven years since the conduct occurred.   
36. [36]
    The Health Ombudsman’s submissions speak of a second referral concerning Mr Jones.  It is said that this does not impact upon these proceedings, but it may be a factor in the absence of some of the information just referred to.
37. [37]
    The Tribunal is cognisant of an agreed position having been reached between experienced lawyers; its obligations to conduct proceedings expeditiously; and the length of time that has elapsed since the conduct occurred.  Whilst more information may have been ideal, the Tribunal considers a proper consideration of the appropriate sanctions can be undertaken on the material before it.
38. [38]
    The Tribunal agrees with the submission by the Health Ombudsman that Mr Jones’ conduct should be seen as “extensive, prolonged and deliberate, and gave rise to the potential for serious adverse consequences”.^[15] 
39. [39]
    Mr Jones had been a pharmacist for over 30 years when the conduct occurred.  He was plainly experienced.  He was aware, or ought to have been aware, of his professional obligations.  The period over which the conduct extended, the frequency of the improper dispensing and the conduct relating to records speak of a deliberate disregard of those professional obligations.
40. [40]
    In 2021, Mr Jones was formally cautioned by Ahpra.  He was convicted of driving with a blood alcohol reading of 0.112.  The caution was administered because:

…he has not adequately demonstrated how he was assured that he was not affected by alcohol when he practised on 19 February 2019, after knowingly producing a breath alcohol test result of 0.112 that morning.^[16]

41. [41]
    Further action by Ahpra occurred the same year.  Ms D was a client of the pharmacy at which Mr Jones was employed.  Drugs had been dispensed to her.  Ms D stayed at Mr Jones’ home for four nights.  Both denied a sexual relationship.  Mr Jones said his conduct was designed to assist Ms D who was escaping domestic violence.  Ahpra decided:

We are concerned that Mr [Jones] does not appear to have recognised without assistance from Ahpra that it was not his actions of helping Ms [D] escape domestic violence that were of concern, but that he continued to dispense medication to her during this time and while maintaining a friendship.^[17]

42. [42]
    Conditions were placed on Mr Jones’ registration which have now been performed and consequently discharged.
43. [43]
    The Ombudsman submits that “although the respondent has now made fulsome admissions, they came late, and came after he had denied the gravamen of the conduct”.  Submissions on behalf of Mr Jones point to his cooperation in providing an agreed set of facts to the commission and his acquiescence in the proposed sanctions, including in particular onerous conditions.  It is submitted that these factors are reflective of remorse and an appreciation of the seriousness of the conduct and a determination to avoid any repetition of unprofessional conduct.
44. [44]
    Under the heading “Personal Deterrence”, it is submitted on behalf of Mr Jones:

The respondent derived no personal or financial benefit from the matters the subject of the referral. The proposed sanction provides a powerful disincentive for the respondent to engage in any further conduct which might attract similar treatment in the future.

The relevant conduct ceased in December 2018.  It is almost 6 years since the offending conduct.  An assessment of the ongoing risk posed by the respondent demonstrates that he is not at risk of repeating the conduct…

45. [45]
    Both parties have referred to a number of cases decided by the Tribunal which are said to provide guidance in the instant case: Health Ombudsman v Dalziel [2017] QCAT 442; Health Ombudsman v Stibbard [2022] QCAT 93: Health Ombudsman v Julie Holland [2021] QCAT 203; Health Ombudsman v Zuyderwyk [2019] QCAT 74; and Pharmacy Board of Australia v Brenton [2011] QCAT 302. 
46. [46]
    Obviously enough, there is a wide range of circumstances evident in those decisions.  That factor notwithstanding, there are nevertheless significant differences in the sanctions imposed.
47. [47]
    Particular reliance is placed by both parties on Dalziel, above.  The suspension period in that case was one month and conditions on practice were also imposed.  The case involved a similar timeframe to the present but there were only two patients involved and significantly fewer dispensing occasions.  The drugs were steroids and a masking agent, and the patients were known to Dalziel.  The personal mitigating circumstances evident in that case are not, on the material before the Tribunal, present in the instant case.
48. [48]
    Stibbard was suspended for four months.  She dispensed drugs to herself and eight other people over an approximate fourteen-month period.  She had an opioid use disorder, but her self-supply did not appear to be connected with that.  There was no evidence of insight or remorse, and no cooperation at the time of the investigation.
49. [49]
    Ultimately, the Health Ombudsman submits that the agreed suspension for four months reflects a period of suspension that is “tempered by the recognition of the respondent’s admissions and the effluxion of a reasonable time before these matters have come to determination”.^[18] 
50. [50]
    The time it has taken for these matters to be determined by the Tribunal might not, without more, be a reason for “tempering” a suspension that is otherwise warranted.   The Tribunal’s initial inclination was that a longer period of suspension was required, particularly in light of the two additional matters giving rise to investigations by Ahpra (albeit neither being related to issues similar to the present). 
51. [51]
    Three matters ultimately persuaded the Tribunal to order a period of suspension in accordance with the parties’ agreement.   
52. [52]
    First, the agreement itself was reached between experienced lawyers.^[19]  Second, the Tribunal accepts the submission on behalf of Mr Jones that the lengthy period of time between the conduct and this hearing provides evidence that “he is not at risk of repeating the conduct”.^[20]  Third, the period of suspension is part of a sanction that also includes conditions that include supervision by a senior mentor and a restriction on practising as an owner or principal of a pharmacy.
53. [53]
    The Tribunal also accepts the submission on behalf of Mr Jones that the conditions can also be seen to underpin “a willingness and desire” on Mr Jones’ part to “extend his education and to ensure appropriate measures are in place to allow [him] to obtain guidance and support as required”.^[21]  Importantly, as is pointed out in the submissions by the Health Ombudsman, the proposed conditions are underpinned by the consideration that, ultimately, “it will be a matter for the Board to assess that the practitioner has satisfactorily completed his mentoring and education”.^[22]

Orders