Adamson v The Pharmacy Board of Tasmania (No 2)

[2004] TASSC 82

[2004] TASSC 82

CITATION:              Adamson v The Pharmacy Board of Tasmania (No 2) [2004] TASSC 82

PARTIES:  ADAMSON, Thomas Dixon
  v
  PHARMACY BOARD OF TASMANIA (THE)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 116/2003
DELIVERED ON:  16 August 2004
DELIVERED AT:  Hobart
HEARING DATES:  16 February, 26 March, 8 April, 5, 26 May,

26 July, 10 August 2004

JUDGMENT OF:  Evans J

CATCHWORDS:

Professions and Trades – Medical and related professions – Pharmaceutical chemists – Discipline and removal from Register – Professional misconduct – Unprofessional conduct – Distinction – Erroneous dispensing.

Pharmacists Registration Act 2001 (Tas).
The Matter of S76 Legal Practitioners Act 1959 and in the Matter of Four Legal Practitioners C2/1987; The Law Society of Tasmania v J B Walker, D B Walker and J R Hurburgh A56/1988; Law Society of Tasmania v Turner and Kench (2001) 11 Tas R 1; Chamberlain v Law Society of The Australian Capital Territory (1993) 118 ALR 54, referred to.
Aust Digest Professions and Trades [220]

REPRESENTATION:

Counsel:
             Appellant:  M E O'Farrell
             Respondent:  N Sweeney
Solicitors:
             Appellant:  Toomey Manning & Co
             Respondent:  Page Seager

Judgment Number:  [2004] TASSC 82
Number of Paragraphs:  23

Serial No 82/2004
File No LCA 116/2003

THOMAS DIXON ADAMSON
v THE PHARMACY BOARD OF TASMANIA (NO 2)

REASONS FOR JUDGMENT  EVANS J

16 August 2004

1. The appellant appeals against a finding and consequential orders made by the respondent, acting in its capacity as a disciplinary tribunal ("the Tribunal") pursuant to the Pharmacists Registration Act 2001 ("the Act"). The Tribunal, in summary, found the appellant guilty of professional misconduct. That finding was made at the conclusion of proceedings instituted against the appellant by way of a complaint that included allegations that he had incorrectly prescribed medication and failed to comply with an undertaking he had given the respondent to comply with a dispensing process approved by the respondent. The complaint included the following paragraphs:

"10If the Board finds the matter of complaints substantiated then it may find you guilty of professional misconduct or may find you guilty of conduct which fails to meet the standards which are expected of a Pharmacist who practices in this State.

11The Board has discretion as to what action to take in light of findings it makes. If the complaint is substantiated its powers include :‑

a   Removal of a Pharmacist's name from the Register;

b   Suspension of a Pharmacists registration totally or partially for a period of not exceeding 12 months;

c   Imposing a fine not exceeding 50 penalty units;

d   Imposing a condition on a Pharmacists Registration;

e   Requiring a Pharmacist to take or refrain from taking specific action;

f   Cautioning or reprimanding of the Pharmacist;

g   Dismissing the complaint or matter of complaint."

1. On the hearing of the complaint the appellant was represented by legal counsel, Mr B Morgan and Mr N Sweeney appeared as counsel appointed to assist the Tribunal.  At the outset of the hearing, Mr Sweeney said to the Tribunal that the facts alleged in the complaint, if proved, may constitute professional misconduct and that he had been informed by Mr Morgan that the appellant, in effect, pleaded guilty to the complaint.  Mr Sweeney told the Tribunal the appellant accepted the facts and that his conduct fell short of the standard of a pharmacist.  Mr Morgan, counsel for the appellant, told the Tribunal that he agreed with everything that had been said.  Thereafter the notes taken of the hearing show that it proceeded on the basis that there was no dispute about the facts. 

1. Mr Morgan made extensive submissions to the Tribunal that in substance included the following :

·     This matter is not an offence of misconduct but one of failing to maintain the standard of competence expected of a pharmacist.  It is not an offence occasioned by some intended action, but rather, one occasioned by inadvertence.

·     Mr Adamson recognises that, whatever the mistakes or failings of others, he has fallen short of the standard that is required of him.

·     I suppose one should say that check lists only work when they are scrupulously followed and in relation to Mrs Marshall there are several areas where the procedures either were not followed, or if they were, then they were not adequately followed.

·     Whatever the reason, Mr Adamson accepts the proposition that he has reached an age, 80, from which he should only practice under the supervision of a registered pharmacist. In addition, he is prepared to undertake that within a reasonable time he will sell his pharmacy and upon that sale will cease to practice as a pharmacist.

1. At the conclusion of Mr Morgan's submissions, the hearing was adjourned and upon the resumption of the hearing, the notes taken of the hearing record that the Chairman of the Tribunal  said that the Tribunal found the appellant "guilty of professional misconduct or failing to meet (the) standards of a pharmacist".  The Tribunal then took submissions from counsel in relation to the consequential orders it should make and announced that it would issue written findings.  The written findings include the following:

"2   Role of the Tribunal

The Tribunal's role is to make findings of fact in relation to the evidence presented to it.

Having made those findings the Tribunal's role is to consider whether that factual material constitutes professional misconduct or, bearing in mind the Pharmacy Board being charged with performing its functions and exercising its power pursuant to Section 10 of the Act, whether the actions of Mr Adamson may:

a   be evidence that Mr Adamson has fallen short of the standard of service expected by the public in his practice as a Pharmacist;

b   be evidence that Mr Adamson has fallen short of the highest professional standard of a Pharmacist practising as a Pharmacist;

c   be evidence that Mr Adamson failed to guard against an unsafe practice in the provision of medication to a patient.

In this regard professional misconduct constitutes 'misconduct which might reasonably have been held to have violated, or fell short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency' (Chamberlain v Law Society of ACT (1993) 118 ALR 54 in Federal Court)

3    Plea

At the disciplinary tribunal hearing on 16 October 2003, Mr B Morgan, acting on behalf of Mr Adamson, advised that his client accepted and acknowledged the matters of the complaint and offered a plea of guilty of conduct which fell short of the standard of professional conduct expected of a pharmacist practising in Tasmania.

4    Determination

The Tribunal found Mr Adamson guilty of professional misconduct pursuant to Section 43(2) of the Pharmacists Registration Act 2001 in that his conduct fell short of the standard of professional conduct expected of a Pharmacist who practises in this State or as was expressed in the Chamberlain Case 'fell short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency'. Furthermore, the Tribunal noted that for the purposes of section 43(2) of the Act, professional misconduct is also defined as including negligence in practising as a pharmacist and that it was clear in this case that the dispensing errors arose as a result of negligence on behalf of Mr Adamson and thus in this way was professional misconduct."

1. Grounds 3A and 3B of the appeal are:

"3AThe respondent failed to give the appellant procedural fairness in that, having accepted the appellant's plea that he had failed to meet the standards of a pharmacist, the respondent then made a finding against the appellant that he was guilty of professional misconduct without offering the appellant any, or any sufficient opportunity to make submissions to the respondent about whether or not that finding could, or ought to have been made.

3BThe respondent failed to give the appellant procedural fairness in that, having accepted the appellant's plea that he had failed to meet the standards of a pharmacist, the respondent then made a finding against the appellant that he was guilty of professional misconduct on the basis that he was negligent without offering the appellant any, or any sufficient opportunity to make submissions to the respondent about whether or not that finding could, or ought to have been made."

1. The circumstance that gave rise to each of these grounds of appeal is the advice in par10 of the complaint that if the Tribunal "finds the matter of complaint substantiated then it may find you guilty of professional misconduct or may find you guilty of conduct which fails to meet the standards which are expected of a Pharmacist who practices in this State". In order to address the inclusion of this advice in the complaint, I set out the following provisions of the Act which relate to the functions, jurisdiction and power of the respondent:

"10 ¾ The Board must perform its functions and exercise its powers so as to ¾  

(a)ensure that the services that registered pharmacists provide to the public are of the highest possible standard; and

(b)ensure that persons who practise as pharmacists do so according to the highest professional standard; and

(c)guard against unsafe, incompetent and unethical practices by registered pharmacists.

…

42 ¾ (1)    Any person may make a complaint against a registered pharmacist.

…

43 ¾ (1)    Without limiting the matters about which a complaint may be made, a person may complain that a registered pharmacist ¾

(a)has been registered by reason of a false or misleading statement or declaration; or

(b)no longer holds, or is no longer entitled to hold, a qualification by reason of which the pharmacist was registered; or

(c)lacks sufficient physical capacity, mental capacity or skill to practise as a pharmacist; or

(d)is not entitled on other grounds to be registered; or

(e)has been guilty of professional misconduct.

(2)     Without limiting the matters that may constitute professional misconduct, a registered pharmacist is guilty of such misconduct if the pharmacist –

(a)contravenes section 31, section 59(4) or Part 6, or a regulation that is prescribed as a disciplinary regulation; or

(b)contravenes the Pharmacy Code; or

(c)contravenes a provision of the Poisons Act 1971; or

(d)contravenes a foreign pharmacists law; or

(e)contravenes a condition of the pharmacist's registration; or

(f)fails to pay, within the time specified for payment, a fine imposed on the pharmacist under section 53(1)(c); or

(g)fails to comply with a requirement made of the pharmacist under section 53(1)(e) or section 56(3) or (4); or

(h)fails to honour an undertaking given to the Board; or

(i)is negligent or incompetent in practising as a pharmacist; or

(j)behaves in a fraudulent or dishonest manner in practising as a pharmacist; or

(k)obstructs or otherwise prejudices any inquiry, investigation or disciplinary proceedings under this Act.

…

51 ¾ (1)    An investigating committee has cause to institute formal disciplinary proceedings on a complaint under section 48(c) if the committee is satisfied, having regard to the objectives in section 10, that the complaint has been made on reasonable grounds and is of a serious kind.

(3)     An investigating committee institutes formal disciplinary proceedings on a complaint by  ¾  

(a)referring the complaint to the Board in its capacity as a disciplinary tribunal; and

(b)giving the pharmacist concerned, and the complainant, notice that the proceedings have been instituted.

(4)     For the purposes of subsection (3), a summons to appear before the disciplinary tribunal to answer a complaint constitutes sufficient notice to the pharmacist concerned.

52 ¾ (1)    Formal disciplinary proceedings are conducted by the Board acting as a disciplinary tribunal.

(2)     Schedule 3 has effect in relation to the powers and procedures of the Board when it is acting as a disciplinary tribunal."

53 ¾ (1)    After it has conducted any formal disciplinary proceedings, the Board, in its discretion, may take such one or more of the following actions as it considers appropriate in light of its findings:

(a)remove the defendant's name from the register;

(b)suspend the defendant's registration, totally or partially, for a period not exceeding 12 months;

(c)impose on the defendant a fine not exceeding 50 penalty units;

(d)impose a condition on the defendant's registration;

(e)require the defendant to take or refrain from taking specified action;

(f)caution or reprimand the defendant;

(g)dismiss the complaint."

1. It has long been accepted in relation to legislation governing the discipline of members of a profession that, save as otherwise provided, the kinds of misconduct that justify action by a disciplinary tribunal include criminal conduct, professional misconduct and unprofessional conduct; In the Matter of the Law Society Act 1962 and in the Matter of a Legal Practitioner A105/1982 Cox J (as he then was) at 8 and 9, and Ex parte the Attorney-General for the Commonwealth: re; a Barrister and Solicitor (1972) 20 FLR 234 at 241. Whilst categories of conduct such as those mentioned are often referred to, it is not necessary that the conduct in question falls within any particular category. In The Matter of S76 Legal Practitioners Act 1959 and in the Matter of Four Legal Practitioners C2/1987, Green CJ said at 37:

"I reject the submission that my only function is to determine whether or not the respondents have been guilty of professional misconduct.  My function is to consider the allegations and the evidence and make whatever findings about the respondents' conduct which might be appropriate."

However, I am not satisfied that it is appropriate or necessary to characterise the respondents' conduct by the use of some phrase such as 'unprofessional conduct'.  I do not think it necessary to attempt to characterise of categorise their conduct more precisely than I have in the above findings."

1. In the course of his reasons for judgment, Green CJ found that some respondents breached their duty as a solicitor and in the light of those findings, he invited the applicant to move that some admonitory, disciplinary or punitive steps should be taken.  The course taken by Green CJ was upheld in The Law Society of Tasmania v J B Walker, D B Walker and J R Hurburgh A56/1988.  Cox J (as he then was) said, at 31:

"I agree that having failed to be persuaded that there was any professional misconduct his Honour was not required to characterise the failings he found by any other epithet."

1. Accordingly, whilst it was not necessary that the complaint specify how the Tribunal might categorise the appellant's conduct, there was nothing improper about the complaint containing that indication.

1. The distinction drawn in par10 of the complaint between "professional misconduct" and "conduct which fails to meet the standards which are expected of a Pharmacist who practices in this State", on its face, reflects the traditional distinction made in disciplinary proceedings between "professional misconduct" and "unprofessional conduct". Besides the inclusive meanings detailed in s43(2), professional misconduct is behaviour on the part of a member of a profession that would reasonably be regarded as disgraceful or dishonest by members of that profession of good repute and competency. In re a Solicitor [1912] 1 KB 302 at 311, 312; Grahame v Attorney-General of Fiji [1936] 2 All ER 992 at 1002; Myers v Elman [1940] AC 282 at 288, 289; Re Thom; ex parte the Prothonotary (1963) 80 WN (NSW) 968 at 969; Re Veron; ex parte Law Society of New South Wales (1966) 84 WN (Pt1) (NSW) 136 at 143; In re Three Solicitors [1949] VLR 72 at 73; Re a Solicitor [1960] VR 617 at 620; Law Society of Tasmania v Turner and Kench (2001) 11 Tas R 1 [44].

1. In Re R, A Practitioner of the Supreme Court and Re A, A Practitioner of the Supreme Court [1927] SASR 58 at 61, the members of the court adopted the meaning of professional misconduct set out above and as to unprofessional conduct, said it is not necessarily limited to conduct which is disgraceful or dishonourable in the ordinary sense of those terms and includes "conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency." This definition of unprofessional conduct was approved by the Full Court (WA) in Fordham v Legal Practitioner (1997) 18 WAR 467 at 476 and has been adopted in Tasmania; A & Anor v The Law Society of Tasmania (2001) 10 Tas R 152 [42] and Law Society of Tasmania v Turner and Kench (supra) [48]. As observed in the latter case by Crawford J at [50], in a general sense, professional misconduct should be regarded in this State as a more grave form of misconduct than unprofessional conduct. In my view this must be so, as unprofessional conduct does not need to be disgraceful or dishonourable.

1. As already observed, there was nothing improper about the indication in the complaint that the appellant's conduct might be found to be "professional misconduct or … conduct which fails to meet the standards which are expected of a Pharmacist who practices in this State", that is, unprofessional conduct.  That indication having been given, it is not surprising that the appellant's acknowledgment of guilt related to the less grave categorisation of his conduct.

1. In my view this acknowledgment did not restrict the Tribunal to a finding of unprofessional conduct.  The facts having been admitted it was open to the Tribunal to make whatever finding it considered appropriate.  My understanding of the notes of the hearing is that this was made clear to the Tribunal. That this was the understanding of the parties is demonstrated by the failure of the appellant's counsel, Mr Morgan, to express concern when the Chairman of the Tribunal stated that it found the appellant "guilty of professional misconduct or failing to meet [the] standards of a pharmacist" before inviting submissions on the consequential orders to be made.

1. Whilst I am not persuaded that the appellant was denied procedural fairness by the finding of professional misconduct, I am concerned about the findings that were made.  The use of the disjunctive "or" in the oral finding is duplex.  If the appellant's conduct amounted to professional misconduct then that is all that should have been said.  Of course, some aspects of his conduct could have amounted to professional misconduct and other aspects could have amounted to unprofessional conduct.  If that was the case, at the very least, the oral finding should have been that he was guilty of professional misconduct and unprofessional conduct.

1. The concerns raised by the Tribunal's oral findings are compounded by its written findings, which show that the Tribunal had an incorrect understanding of what constitutes professional misconduct in the context of disciplinary proceedings. In its findings, the Tribunal said:

"In this regard professional misconduct constitutes 'misconduct which might reasonably have been held to have violated, or fell short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency' (Chamberlain v Law Society of ACT (1993) 118 ALR 54 in Federal Court)."

1. The relevant portion of the decision of the Full Court in Chamberlain v Law Society of The Australian Capital Territory (1993) 118 ALR 54 is that of Black CJ at 58 which reads as follows:

"The scope of s 36 and s 41(1) of the Act (then sections of the Legal Practitioners Ordinance 1970-1972) was considered by the Supreme Court of the Australian Capital Territory, (Fox, Blackburn and Woodward JJ) in Ex parte Attorney-General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234. The court said (at 245) that no definition of professional misconduct for the purposes of s 36 should be undertaken and that it was equally unwise to attempt a definition for the purposes of s 41 but after considering Australian and English cases and the terms of the Legal Practitioners Ordinance the court concluded, adopting the language of the Supreme Court of South Australia in Re R, A Practitioner of the Supreme Court and Re A, A Practitioner of the Supreme Court (1927) SASR 58 at 61, that misconduct within s 36 included:

'… conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.'

Their Honours also recognised that a breach of standards of that nature would fall within the ambit of s 41.  Although the court did not take the view that the solicitor in that case had acted disgracefully or dishonourably it considered that he had been guilty of conduct that was unprofessional and that the conduct required a reprimand.  In Re Guild and Re Legal Practitioners Ordinance 1970 (1979) 32 ACTR 13 at 36, Blackburn CJ, Connor and Davies JJ adopted the principles enunciated in Ex parte Attorney-General for the Commonwealth; Re a Barrister and Solicitor."

1. In the above passage, Black CJ distinguishes between "professional misconduct", as to which it was said no definition should be attempted, and "misconduct within s 36" which includes conduct as defined in Re R, A Practitioner of the Supreme CourtandRe A, A Practitioner of the Supreme Court. The definition of misconduct taken from this authority is that which it in fact gave for unprofessional conduct.  That the distinction between professional misconduct and unprofessional conduct was recognised by Black CJ is made clear from a reading of the authority to which he refers, Ex parte Attorney-General (Commonwealth); Re a Barrister and Solicitor at 239 – 245. 

1. Unfortunately it seems the Tribunal was misled by the headnote in Chamberlain v Law Society of The Australian Capital Territory (supra) which wrongly states that the court held:

"Professional misconduct was misconduct which might reasonably have bee held to have violated, or fell short of, to a substantial degree, the standard of prior convictions observed or approved of by members of the profession of good repute and competency."

1. The Tribunal's misunderstanding is manifest from the first sentence of the following paragraph in its written findings:

"Determination

The Tribunal found Mr Adamson guilty of professional misconduct pursuant to Section 43(2) of the Pharmacists Registration Act 2001 in that his conduct fell short of the standard of professional conduct expected of a Pharmacist who practises in this State or as was expressed in the Chamberlain Case 'fell short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency'. Furthermore, the Tribunal noted that for the purposes of section 43(2) of the Act, professional misconduct is also defined as including negligence in practising as a pharmacist and that it was clear in this case that the dispensing errors arose as a result of negligence on behalf of Mr Adamson and thus in this way was professional misconduct."

1. It can be seen that, putting aside the Tribunal's finding in relation to negligence, in finding the appellant guilty of professional misconduct the Tribunal has erroneously applied the test for what amounts to unprofessional conduct. In these circumstances, the Tribunal's decision cannot stand and is quashed. Pursuant to the Act, s61(2)(a), if the Court quashes a decision it may, according to the circumstances of the case, substitute for the decision it has quashed, any decision that the Tribunal would have had jurisdiction to make in those circumstances.

1. Before the Tribunal the appellant acknowledged the truth of the facts alleged against him and that his conduct failed to meet the standards expected of a pharmacist in Tasmania. He in substance acknowledged unprofessional conduct.  In summary the facts alleged against him are that he incorrectly dispensed 25mg Panafcortelone tablets when 5mg tablets had been prescribed and thereafter incorrectly dispensed a repeat supply of these same tablets (the Marshall allegation).  This was a serious breach as in the course of the previous three years, the appellant had on two occasions been the subject of disciplinary proceedings in relation to, in all, four dispensing errors.  The outcome of the most recent disciplinary hearing had included the appellant providing the respondent with a written undertaking to enforce compliance with a dispensing process approved by the respondent.

1. Mr O'Farrell, counsel for the appellant on the hearing of this appeal, contends that conduct that has previously been the subject of proceedings between the appellant and the respondent is no longer conduct that can be used for the purposes of characterising the issue of misconduct in the present proceedings.  For this contention, Mr O'Farrell relies on Basser v Medical Board of Victoria [1981] VR 953 at 971 and following. That decision, in substance, recognises that in appropriate circumstances a complaint of professional misconduct may be met with a plea in the nature of res judicata.  Plainly that is so, but this provides no support for Mr O'Farrell's contention.  The conduct of the appellant that was the subject of the earlier disciplinary proceedings is relevant to whether the Marshall incident should be viewed as an isolated and out of the ordinary mistake.  It was also necessary for the evidence of the most recent disciplinary hearing to be before the Tribunal in order to explain the dispensing process the appellant had undertaken to comply with.  One of the grounds of complaint was that he had breached that undertaking.

1. Had the dispensing process approved by the respondent been followed, there were at least three, and possibly four, occasions at which the appellant should have noticed the error that is the subject of the Marshall allegation. As acknowledged by the appellant's counsel, there are several areas where the dispensing procedures either were not followed, or if they were, then they were not adequately followed. Whilst the appellant's counsel made the point that the appellant's offence was not intentional but inadvertent (it would be appalling if it was otherwise), that does not negate the gravamen of the concern that must flow from his conduct, concern for the safety of his customers. I am satisfied the error would not have occurred had the appellant properly complied with the undertaking he gave to the respondent. The Tribunal, the members of which include five registered pharmacists, in effect found that the appellant's conduct amounted to unprofessional conduct. In all these circumstances, I have no hesitation in concluding that it is appropriate that I exercise the power conferred under the Act, s61(2)(a) and find the appellant guilty of unprofessional conduct. I will hear the parties before making consequential orders.