Hamilton v Chief Executive, Queensland Health
[2010] QCAT 574
•11 November 2010
| CITATION: | Hamilton v Chief Executive, Queensland Health [2010] QCAT 574 | |
| PARTIES: | Robert James Hamilton | |
| v | ||
| Chief Executive, Queensland Health | ||
| APPLICATION NUMBER: | GAR312-10 |
| 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 application to stay the decision of Queensland Health to cancel Mr Hamilton’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 refused. 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 Mr Hamilton’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. Mr Hamilton has applied to review that decision. He 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
Mr Hamilton says that not ordering a stay of Queensland Health’s decision will have a significant impact on him:
a)The pharmacy sells about 5000 PSE products per year. Mr Hamilton’s lawyers have told him that it will take between six months and a year to complete these proceedings. He believes that he will lose between $25,000 and $50,000 in lost PSE sales. He will also lose ancillary sales.
b)When Ms Gnanakan takes maternity leave, he will need to work more hours to cover her shifts. He will need to work 80 hours per week to cover her absences.
c)He operates the pharmacy alone on public holidays and has done so for the past 30 years. He is not aware of any other pharmacy that is open for similar extended hours.
d)He needs his endorsement to provide effectively for the needs of the Mackay community.
e)It is uncommercial to retain the pharmacists who are similarly restricted by the cancellation of their endorsements.
f)He has an exemplary record of 47 years as a pharmacist.
Queensland Health points out that:
a)Mr Hamilton’s employment is not affected by the decision.
b)His ability to earn an income is not entirely dependent upon the ability to sell PSE.
c)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”).
d)Mr Hamilton should not be selling 5000 PSE products per year. Customers seeking treatment for symptoms relating to colds and flu may be sold products containing PE.
e)Mr Hamilton has not disclosed the overall turnover of the pharmacy, or how the income from PSE relates to that turnover.
I accept Queensland Health’s argument that Mr Hamilton has not provided sufficient information to demonstrate financial hardship:
a)He has not disclosed the turnover of the pharmacy.
b)He has not disclosed the percentage turnover represented by PSE.
c)He has not disclosed the profit margin on PSE.
d)He has not disclosed whether the pharmacy is his sole source of income.
e)He has not addressed any attempt to mitigate his potential loss through the sale of PE rather than PSE.
How Mr Hamilton staffs the pharmacy, and the hours he works, is a matter for him. It is not a reason to support the granting of a stay.
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 could not account for 2,324 items of PSE. Mr Hamilton has not provided any information to explain what happened to those items.
Mr Hamilton owns the pharmacy and worked in it every day during the period under investigation. The Department is reasonably satisfied that Mr Hamilton could have dispensed PSE without accounting for it properly.
10. Mr Hamilton has not provided documents sought by a notice pursuant to s153N of the Health Act issued on 8 December 2009. Queensland Health says, and I accept, the failure to respond indicates Mr Hamilton’s lack of respect for, and co-operation with, Queensland Health.
11. In response to the notice to produce, Mr Hamilton denied being the owner of the pharmacy. When he was asked to clarify that assertion, Mr Hamilton failed to respond. Queensland Health records indicate that Mr Hamilton does own the pharmacy. He now asserts that he is a 50% owner. Queensland Health says, and I accept, that this indicates a lack of credibility.
12. I have considered the notice of decision. Ground 1 refers to the purchase of PSE on specific dates. Queensland Health’s conclusion that Mr Hamilton was involved in the sale is based upon:
a)That Queensland Health “understands” that Mr Hamilton works in the pharmacy every day.
b)The relevant officer did not identify Mr Hamilton as the person who conducted the transaction. The officer cannot even say that he saw Mr Hamilton in the pharmacy at the time.
13. However, Ground 2 is much more serious and directly referable to Mr Hamilton. Queensland Health does not accept his explanation for dispensing 10 packets of Own Name Sinus and Nasal to the same person on 15 June 2009 and again on 15 September 2009 by reference to a prescription issued in September 2008.
14. 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, Queensland Health has raised an arguable case that Mr Hamilton’s failure to engage with Queensland Health’s investigations gives cause for concern.
Public Interest
15. 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.
16. Mr Hamilton 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 Mr Hamilton to continue dispensing PSE.
[1] Saini v Medical Board of Australia [2010] QCAT 515
17. 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 the particular risk that attaches to Mr Hamilton. I do accept, however, that Mr Hamilton’s failure to engage with Queensland Health does demonstrate that a risk may attach to Mr Hamilton’s future dealings with PSE. Although Mr Hamilton’s submissions acknowledge the salutary effect of the decision, as Senior Member Oliver identified in Craddock v Chief Executive, Department of Transport and Main Roads[2], his lack of cooperation to date does not give me any comfort that the warning has been heeded.
[2] [2010] QCAT 229
Application for legal representation
18. Queensland Health has sought leave for legal representation but has not favoured the tribunal with any submissions in that regard.
19. 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
20. The balance of convenience does not favour the granting of a stay:
a)Mr Hamilton is the owner of the pharmacy. He has not pointed to any real financial hardship.
b)He is able to employ pharmacists to provide the level of service that his customers expect.
c)Ground 2 is a serious allegation, especially for a pharmacist with his experience.
d)His lack of cooperation with Queensland Health must be a cause for concern.
21. I order:
a)Mr Hamilton’s application for a stay of the decision of Queensland Health to cancel Mr Hamilton’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 dismissed.
b)Both parties are granted leave to be legally represented in the proceeding.
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