Health Ombudsman v Carroll, Luke Robert - [2023] QCAT 521

[2023] QCAT 521

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

ROBERTSON, Judicial Member

Assisted by:

MS FEENEY

MR FREDERICKS
MR ZIMON

No OCR 128 of 2023

HEALTH OMBUDSMAN Applicant

CARROLL, Luke Robert Respondent

BRISBANE

WEDNESDAY, 8 NOVEMBER 2023 REASONS FOR DECISION

JUDICIAL MEMBER: This is a disciplinary referral filed on behalf of the Applicant Director on 24 May 2023 seeking disciplinary findings and orders by way of sanction. The Respondent is a registered pharmacist. He was born on 27 May 1983 and is currently 40 years of age, and was between 37 and 38 at the time of the conduct the subject of the disciplinary referral. Mr Carroll was first granted registration by the Pharmacy Board of Australia on or around 18 November 2005.
The conduct the subject of the referral, relates to circumstances surrounding criminal offending to which Mr Carroll pleaded guilty in the Magistrates Court at Caboolture on 8 June 2022, at which time he was convicted on his own plea of guilty of two criminal offences, namely one count of stealing as a servant and one count of fraudulently falsifying records, betwee n 25 February 2021 and 2 December 2021. At that time, he was sentenced to a period of probation with no conviction recorded.
As a result of the Regulator being notified of the charges, the Health Ombudsman indicated an intention to impose conditions by way of immediate action, and on the 9 May 2022, the Health Ombudsman imposed conditions on the Respondent’s registration, which addressed some of the issues that arose as a result of the offending.
Over a period of approximately 10 months, at times when he was employed as a pharmacist manager at various pharmacies in southeast Queensland for a large chain, the Respondent used practice software to dispense to himself, and, on some occasions, to his partner, prescribed medication, and he caused false records to be created to avoid payment. The genesis of this offending by a man who has no prior or subsequent disciplinary or criminal history seems in part to relate to an existing mental health condition and issues with his employer, although none of that is particularly clear on the material before the Tribunal.
The plea of guilty to two offences on 8 June 2022 appears to have arisen after 60 offences of stealing and 60 offences of fraudulently altering records were consolidated into one count to cover each episode of offending. The amount involved appears to have been around $1,500.00 which the Respondent had repaid by the time of the Court appearance.
At the time of the original investigation by the Health Ombudsman, the Respondent, through his lawyers, was suggesting that his conduct did not involve dishonesty and may have occurred as a result of mistake, and that he never intended to mislead anyone. However, by his actions in pleading guilty in the Magistrates Court, he appears now to have accepted that his conduct did involve offending, which has an essential element an allegation of dishonesty.
Clearly criminal behaviour in the course of employment by a health practitioner constitutes professional misconduct, as it involves conduct that is substantially below the standard which might reasonably be expected of a pharmacist of equivalent level of training or experience. Such conduct involves breaches of a number of provisions of the Code of Conduct for Pharmacists, promulgated by the Board in March 2014. All of this is accepted by the Respondent.
It is conduct not dissimilar, but less serious, than that considered by the Victorian tribunal in Pharmacy Board of Australia v WYH (Review and Regulation) [2021] VCAT 509 (‘WYH’), and involved a breach of basic ethical obligations of a pharmacist, which is to ensure that drugs are not made available to persons other than in accordance with the legal safeguards in place.
The principles relating to sanction are well known. In this case, the Respondent has apologised for his conduct and has cooperated with the police and in the criminal proceedings, and with the Regulator in these proceedings. There is a brief psychiatric report that suggests that he is presently stable, and I am satisfied that it is highly unlikely that he will ever behave in this way again. As I have noted, he has no prior or subsequent criminal disciplinary history.
Subject to the conditions that were imposed by the Ombudsman in May of 2022, he has successfully worked as a pharmacist and he has impressed those with whom he has worked, and particularly those who were charged with supervising his practise in accordance with the conditions. He has filed an affidavit in the proceedings which shows insight and remorse, and he also has a supportive affidavit of his employer. He has received an award since the events the subject of the referral, which suggests that he is fully rehabilitated.
The Applicant submits a reprimand and the imposition of an education condition for a period of four hours is the appropriate response here, in line with such decisions as WYH and Pharmacy Board of Australia v Park (Review and Regulation) [2022] VCAP 1095 (‘Park’). I immediately note that the conduct here is far less serious than the conduct in either of those cases. As the Applicant notes in his submission, the conduct here did not involve stealing of medication for illicit use and was, with the exception of two occasions, dispensed in accordance with dispensing requirements, but was not processed through the payment system correctly. The circumstances in Park and WYH were objectively much more serious.
The Respondent has appeared today. He has fully cooperated with these Tribunal proceedings, including filing with his response to the referral, a statement of agreed facts, which he signed. In those circumstances, the Tribunal makes the following findings and orders:
1.The conduct of the Respondent in allegation 1 constitutes professional misconduct pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld) (‘the Act’);
2.Pursuant to section 107(3)(a) of the Act, the Respondent is reprimanded;
3.Pursuant to section 107(3)(b)(iii) of the Act, conditions are imposed on the Respondent’s registration in terms of the attached schedule;
4.Pursuant to section 62(2)(a)(ii) of the Act, the immediate registration order imposed by the Health Ombudsman on the 9 May 2022 is set aside; and
5.No order as to costs.