Health Ombudsman v CLT - [2019] QCAT 378

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v CLT [2019] QCAT 378

PARTIES:

HEALTH OMBUDSMAN
(applicant)

v

CLT

(respondent)

APPLICATION NO/S:

OCR012-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

3 September 2019

HEARING DATE:

9 October 2018

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan

Assisted by:
Mr M Halliday
Ms N Cawcutt

Dr G Neilson

ORDERS:

The Tribunal orders that:

1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3.   There be no order as to costs.

The Tribunal directs that:

4.   The parties file any application to vary the terms of the non-publication order made on 12 October 2018 and any submissions in support of such matters as to the de-identification of all or part of these reasons by 20 September 2019.

5.   This decision including the reasons for the decision shall not be published other than to the parties, the Pharmacy Board of Australia and the Australian Health Practitioners Regulation Agency until 14 days after the making of any further decision.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURES FROM ACCEPTED STANDARDS – where pharmacist misappropriated Schedule 8 controlled drugs over a nine month period – where pharmacist’s admissions of misappropriation were misleading – where pharmacist admitted to self-administration after expert report provided – where pharmacist suffered from impairment at time of conduct and at time of initial Tribunal hearing – where subsequent evidence as to impairment provided – where pharmacist no longer registered – where admitted that pharmacist engaged in professional misconduct – whether pharmacist’s conduct amounts to professional misconduct – whether appropriate sanction was a reprimand – whether the sanction should include a further period of disqualification from re-applying – whether costs order appropriate

Health (Drugs & Poisons) Regulation 1996 (Qld) s 24
Health Ombudsman Act 2013 (Qld) s 103, s 104, s 107
Health Practitioner Regulation National Law(Queensland), s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48, s 100, s 102

Attorney-General v Bax (1999) 2 Qd R 9, cited
Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103, cited
Health Care Complaints Commission v Do [2014] NSWCA 307, cited
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, cited
Legal Services Commissioner v Madden (No 2) [2008] QCA 301, cited
NSW Bar Association v Meakes [2006] NSWCA 340, cited
Ooi v Medical Board of Queensland [1997] 2 Qd R 176, cited
Pharmacy Board of Australia v The Registrant [2015] QCAT 477, cited

APPEARANCES & REPRESENTATION:

Applicant:

L J Marshall, instructed by the Office of the Health Ombudsman

Respondent:

Self-represented

REASONS FOR DECISION

The Health Ombudsman referred disciplinary proceedings to the tribunal comprising five charges of disciplinary misconduct against the respondent on 12 January 2017 pursuant to s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 378
Decision Date: 3 September 2019

CaseChat Overview and Summary

The Health Ombudsman filed proceedings against a pharmacist in the Queensland Civil and Administrative Tribunal, alleging misconduct in relation to the pharmacist's misappropriation of Schedule 8 controlled drugs over a nine-month period. The pharmacist admitted to misappropriation after an expert report was provided, but his admissions were initially misleading. At the time of the misconduct, and during the initial Tribunal hearing, the pharmacist suffered from an impairment, a fact which was later substantiated by further evidence. The pharmacist was no longer registered at the time of the hearing, and admitted to engaging in professional misconduct. The central issues for the Tribunal were whether the pharmacist's conduct constituted professional misconduct, whether a reprimand was the appropriate sanction, and whether an additional period of disqualification was warranted. Additionally, the Tribunal considered whether an order for costs was appropriate.

The Tribunal found that the pharmacist's conduct amounted to professional misconduct as it involved a significant departure from accepted standards of professional behaviour, particularly in relation to the handling of controlled substances. Given the pharmacist's admissions and the circumstances surrounding his impairment, the Tribunal concluded that a reprimand was a suitable sanction. However, the Tribunal did not consider it necessary to impose a further period of disqualification from re-applying for registration, as the pharmacist was already unregistered. Finally, the Tribunal decided against making a costs order, finding that the circumstances did not warrant such an imposition.

In summary, the Tribunal found that the pharmacist's actions constituted professional misconduct and ordered a reprimand. No further period of disqualification was imposed, and no order for costs was made. The Tribunal also directed that applications regarding the publication of the decision be filed by a specific date, and that the decision itself remain non-public until further decisions were made.

Orders

Orders of the court

The Tribunal orders that:

1. Pursuant to s 107(2) of the Health Ombudsman Act 2013 (Qld), the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

3. There be no order as to costs.

The Tribunal directs that:

4. The parties file any application to vary the terms of the non-publication order made on 12 October 2018 and any submissions in support of such matters as to the de-identification of all or part of these reasons by 20 September 2019.

5. This decision including the reasons for the decision shall not be published other than to the parties, the Pharmacy Board of Australia and the Australian Health Practitioners Regulation Agency until 14 days after the making of any further decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Health Ombudsman v CLT [2019] QCAT 378
PARTIES:	HEALTH OMBUDSMAN (applicant)
v
CLT (respondent)
APPLICATION NO/S:	OCR012-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	3 September 2019
HEARING DATE:	9 October 2018
HEARD AT:	Brisbane
DECISION OF:	Judge Sheridan Assisted by: Mr M Halliday Ms N Cawcutt Dr G Neilson
ORDERS:	The Tribunal orders that: 1. Pursuant to s 107(2) of the *Health Ombudsman Act 2013* (Qld), the respondent has behaved in a way that constitutes professional misconduct. 2. Pursuant to s 107(3)(a) of the *Health Ombudsman Act 2013* (Qld), the respondent is reprimanded. 3. There be no order as to costs. The Tribunal directs that: 4. The parties file any application to vary the terms of the non-publication order made on 12 October 2018 and any submissions in support of such matters as to the de-identification of all or part of these reasons by 20 September 2019. 5. This decision including the reasons for the decision shall not be published other than to the parties, the Pharmacy Board of Australia and the Australian Health Practitioners Regulation Agency until 14 days after the making of any further decision.
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – DEPARTURES FROM ACCEPTED STANDARDS – where pharmacist misappropriated Schedule 8 controlled drugs over a nine month period – where pharmacist’s admissions of misappropriation were misleading – where pharmacist admitted to self-administration after expert report provided – where pharmacist suffered from impairment at time of conduct and at time of initial Tribunal hearing – where subsequent evidence as to impairment provided – where pharmacist no longer registered – where admitted that pharmacist engaged in professional misconduct – whether pharmacist’s conduct amounts to professional misconduct – whether appropriate sanction was a reprimand – whether the sanction should include a further period of disqualification from re-applying – whether costs order appropriate Health (Drugs & Poisons) Regulation 1996 (Qld) s 24 Health Ombudsman Act 2013 (Qld) s 103, s 104, s 107 Health Practitioner Regulation National Law(Queensland), s 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48, s 100, s 102 Attorney-General v Bax (1999) 2 Qd R 9, cited Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103, cited Health Care Complaints Commission v Do [2014] NSWCA 307, cited Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, cited Legal Services Commissioner v Madden (No 2) [2008] QCA 301, cited NSW Bar Association v Meakes [2006] NSWCA 340, cited Ooi v Medical Board of Queensland [1997] 2 Qd R 176, cited Pharmacy Board of Australia v The Registrant [2015] QCAT 477, cited
APPEARANCES & REPRESENTATION:
Applicant:	L J Marshall, instructed by the Office of the Health Ombudsman
Respondent:	Self-represented