Gnanakan v Chief Executive, Queensland Health
[2010] QCAT 575
•11 November 2010
| CITATION: | Gnanakan v Chief Executive, Queensland Health [2010] QCAT 575 | |
| PARTIES: | Christine Gnanakan | |
| v | ||
| Chief Executive, Queensland Health | ||
| APPLICATION NUMBER: | GAR350-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 11 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of Queensland Health to cancel Ms Gnanakan’s endorsement to obtain, dispense, sell, possess or otherwise deal with all and any drugs and poisons containing the active ingredient Psuedoephedrine (“PSE”) to the extent necessary to practice pharmacy is stayed until further order. 2. Both parties are granted leave to be legally represented in the proceeding. |
| CATCHWORDS : | STAY OF DECISION - PHARMACY – where Department cancelled endorsement to dispense PSE – whether stay would affect parties’ interests – whether stay is in public interest. LEGAL REPRESENTATION – whether complex question of law or fact Queensland Civil and Administrative Tribunal Act ss 22(4), 43 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the
Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
On 18 October 2010, Queensland Health cancelled Ms Gnanakan’s endorsement to obtain, dispense, sell, possess or otherwise deal with all and any drugs and poisons containing the active ingredient Psuedoephedrine (“PSE”) to the extent necessary to practice pharmacy. Ms Gnanakan has applied to review that decision. She has also applied for a stay of the decision.
Section 22(4) of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) allows the tribunal to stay the operation of a reviewable decision only if it considers the order is desirable after having regard to:
a)The interests of any person whose interests may be affected by the making of the order or the order not being made;
b)Any submission made by the decision-maker;
c)The public interest.
The interests of any person whose interests may be affected by the making of the order or the order not being made
Ms Gnanakan says that not ordering a stay of Queensland Health’s decision will have a significant impact on her:
a)She is the primary income earner of the family.
b)She is pregnant with her first chid and is saving to cover a period of about six months’ maternity leave.
c)Her employer has advised that, if the decision remains in place, her employment may be terminated.
d)The family has mortgage obligations. If her employment is terminated, the family may default on those obligations.
e)If her employment is terminated, Ms Gnanakan may not be able to afford legal representation.
f)She will suffer real financial hardship as a result of the delay.
Queensland Health points out that Ms Gnanakan has not provided any documentary evidence to support her assertion of financial hardship. That is a valid criticism. On 10 November 2010, Ms Gnanakan filed submissions in response to Queensland Health’s assertions. The further submissions did not include any supporting evidence of financial hardship despite the fact that the issue had been raised.
I note that Ms Gnanakan’s husband works full-time as a secondary teacher. Certainly the loss of one income is likely to cause any family financial difficulty but Ms Gnanakan has not sufficiently demonstrated that the degree of financial difficulty will amount to financial hardship.
Queensland Health also points out that the decision does not affect Ms Gnanakan’s ability to work as a pharmacist, merely her ability to dispense drugs containing PSE. It submits that only a small proportion of pharmacy sales involve the sale of drugs or poisons containing PSE and that the active ingredient PSE is now commonly replaced with phenylephrine (“PE”).
Ms Gnanakan’s assertion that she will be unemployed depends upon her employer making good a threat, which threat is made by a pharmacist who is under a similar impediment. The letter which is provided in support of the contention was written on the same day as Ms Gnanakan filed her application for review. Coincidentally, that was also the day on which Ms Gnanakan’s employer filed an application for review. I accept Queensland Health’s argument that the evidence to support Ms Gnanakan’s employment may be terminated is not strong.
Queensland Health argues there is an impact on the regulator in staying the decision so soon after it was made and that the grant of a stay may undermine its authority and ability to regulate drugs and poisons in Queensland. QCAT has the power to grant a stay. The legitimate exercise of that discretion should not be seen as an adverse comment on the regulator’s authority. Any different view would effectively remove the tribunal’s power to grant a stay. It is unlikely that this was the intention of the legislation.
Submissions made by the decision-maker
Queensland Health opposes the grant of a stay.
a)The sale of PSE is regulated by the Health (Drugs and Poisons) Regulations. Pharmacists have to hold an endorsement to deal with PSE and can only dispense it if they are reasonably satisfied the customer has a need for it and they have obtained acceptable identification.
b)PSE is an essential pre-cursor for the production of methamphetamine.
c)Between 1 July 2008 and 28 October 2009, the pharmacy at which Ms Gnanakan worked could not account for 2,324 items of PSE. Ms Gnanakan’s employer has not provided any information to explain what happened to those items
d)Ms Gnanakan worked in the pharmacy during the period under investigation and the Department is reasonably satisfied that Ms Gnanakan could have dispensed PSE without accounting for it properly.
10. I have considered the notice of decision. Ground 1 refers to the purchase of PSE on specific dates. Queensland Health’s conclusion that Ms Gnanakan was involved in the sale is based upon:
a)That Queensland Health “understands” that Ms Gnanakan works in the pharmacy Monday to Friday from 8.30 am to 5.00 pm.
b)The purchases were made on a weekday and within those hours.
11. The relevant officer did not identify Ms Gnanakan as the person who conducted the transaction. The officer could not even say that he saw Ms Gnanakan in the pharmacy at the time.
12. Queensland Health makes similar assumptions in ground 2: - that Ms Gnanakan worked in the pharmacy over a certain period and that, given the volume of sales, she was “more than likely” involved in its sale.
13. Whether the assertions by Queensland Health will satisfy the evidentiary onus is a question for the tribunal at the hearing. It does seem to me, however, that Queensland Health’s submission that Ms Gnanakan’s prospects of success are “low” might be unduly pessimistic.
Public Interest
14. Queensland Health also submits that there is an unacceptable risk to the public. In broad terms, it details the journey from PSE to drug dependency, from a $10 packet of PSE to a highly lucrative drug trade. Queensland Health also points to:
a)The potential harm to health practitioners treating patients who have taken methamphetamine as it is associated with a high degree of violence.
b)Pharmacies who stock high levels of PSE are targeted for break and enter offences.
c)The harm to the public from crimes committed to fund drug addiction.
d)The volume of methamphetamine that could have been produced from the PSE that is unaccounted for is significant.
15. Ms Gnanakan submits that:
a)The pharmacy in question is the largest in the area, serving about 20,000 people. It is the only pharmacy that operates from 8.30 am to 9.00 pm.
b)Judge Kingham has recognised that Mackay is an area of need for the provision of medical services.[1]
c)Queensland Health commenced its investigation in October 2009. although it had the power to do so, it did not impose an urgent suspension or cancellation.
d)There is no risk to the public in allowing Ms Gnanakan to continue dispensing PSE.
[1] Saini v Medical Board of Australia [2010] QCAT 515
16. Queensland Health has submitted no evidence of the potential harm to the public. Although I may take notice of events and information commonly in the public domain when making a decision, there has been little attempt to demonstrate a particular risk that attaches to Ms Gnanakan and there has been no attempt to demonstrate that the risk attaches to Ms Gnanakan’s future dealings with PSE. The risks enumerated by Queensland Health will occur, or not, in relation to the PSE that is already unaccounted for and do not really address the issues raised on the stay application.
17. Ms Gnanakan has overstated the potential harm to the public in refusing to grant a stay. The public will still have access to the pharmacy, they will still be able to buy drugs to alleviate the symptoms of colds and flu and they will be able to buy drugs containing PSE, albeit in other pharmacies and, perhaps, at less convenient times.
18. It is disappointing that Ms Gnanakan did not confirm her future intention to comply fully with the regulations when dealing with PSE in the future. Nonetheless, Queensland Health has accepted that Ms Gnanakan has adopted the quality standard of the Pharmaceutical Society of Australia and it does not assert, in any meaningful way, that it considers Ms Gnanakan will not properly deal with PSE in the future.
Application for legal representation
19. Queensland Health has sought leave for legal representation but has not favoured the tribunal with any submissions in that regard.
20. Section 43 of the QCAT Act sets out the matters to which I can give consideration. It is clear to me that this proceeding involves complex questions of law, not least of which is the standard of proof required to enable the tribunal to reach a decision.
Conclusion
21. I am mindful of Queensland Health’s opposition but I consider it appropriate to grant a stay because:
a)While there is little evidence that Ms Gnanakan’s interests will be adversely affected, there is some potential that she will suffer financial hardship.
b)The public harm asserted by Queensland Health is harm that may have already occurred in respect of PSE that has already been dispensed. It is, with respect, mere speculation, particularly as Ms Gnanakan, through her submissions, has accepted the warning that the Queensland Health decision represents.
c)Ms Gnanakan will soon be on maternity leave for six months. She will not be dispensing any drugs during this period.
d)The balance of convenience favours the granting of a stay.
22. I order:
a)The decision of Queensland Health to cancel Ms Gnanakan’s endorsement to obtain, dispense, sell, possess or otherwise deal with all and any drugs and poisons containing the active ingredient Psuedoephedrine (“PSE”) to the extent necessary to practice pharmacy is stayed until further order.
b)Both parties are granted leave to be legally represented in the proceeding.
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