Health Ombudsman v Dalziel

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CITATION:

Health Ombudsman v Dalziel [2017] QCAT 442

PARTIES:

Health Ombudsman
(Applicant)

v

John Dalziel

(Respondent)

APPLICATION NUMBER:

OCR043-17

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

17 October 2017, 17 November 2017

HEARD AT:

Brisbane

DECISION OF:

Judge Sheridan, Deputy President

Assisted by:
Ms K Kensell
Ms K Huxhagen
Mr B Taylor

DELIVERED ON:

20 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Pursuant to s 107(2)(b)(iii) of the Health OmbudsmanAct 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(d) of the Health OmbudsmanAct 2013 (Qld), the registration of the respondent is suspended for a period of one month commencing on 1 February 2018.

3. Pursuant to s 107(3)(b) of the Health OmbudsmanAct 2013 (Qld), the Tribunal imposes conditions on the registration of the respondent in accordance with the attached schedule of conditions.

4. Pursuant to s 109(2) of the Health OmbudsmanAct 2013 (Qld), the National Law, Part 7, Division 11, Subdivision 2 applies to the conditions.

5. Pursuant to s 109(3) of the Health OmbudsmanAct 2013 (Qld), the review period for the conditions is 12 months from the date of this order.

6.    There be no order as to costs.

7.    There be liberty to apply.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN A PROFESSIONAL RESPECT – where the pharmacist admitted to unlawfully supplying Schedule 4 restricted drugs to two customers over a two year period – where the pharmacist admitted to professional misconduct – where the parties had made joint submissions on the categorisation of conduct and sanction – whether the sanction agreed is outside the permissible range

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – OTHER MATTERS – where the parties had made joint submissions on costs – where the pharmacist had agreed to pay the Health Ombudsman’s costs in the amount of $15,000 – whether the interests of justice require the tribunal to make an order as to costs

Health Ombudsman Act 2013 (Qld), s 107
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 100, s 201

Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103, distinguished
Health Care Complaints Commission v Do [2014] NSWCA 307, cited
Health Ombudsman v Antley [2016] QCAT 472, followed
Medical Board of Australia v Andersen [2014] QCAT 374, distinguished
Medical Board of Australia v Dolar [2012] QCAT 271, considered
Medical Board of Australia v Grant [2012] QCAT 285, considered
Medical Board of Australia v Martin [2013] QCAT 376, cited
Medical Board of Australia v Wong [2017] QCA 42, cited
Pharmacy Board of Australia v Booy [2011] QCAT 522, considered
Pharmacy Board of Australia v Brenton [2011] QCAT 302, distinguished
Pharmacy Board of Australia v Ciriello [2014] QCAT 459, distinguished
Pharmacy Board of Australia v Donnelly [2011] QCAT 584, considered
Pharmacy Board…

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Details
Case
[2017] QCAT 442
Decision Date

CaseChat Overview and Summary

The case of Health Ombudsman v Dalziel involves a pharmacist who admitted to unlawfully supplying Schedule 4 restricted drugs over a two-year period. The Health Ombudsman brought disciplinary proceedings against the pharmacist for professional misconduct. The parties made joint submissions on the categorisation of conduct and sanction, and the pharmacist agreed to pay the Ombudsman’s costs. The legal issues before the tribunal included whether the agreed sanction was within the permissible range and whether the interests of justice required an order for costs.

The tribunal found that the pharmacist’s conduct constituted professional misconduct, leading to the suspension of their registration for one month. The tribunal also imposed conditions on the pharmacist’s registration, which were to be reviewed in twelve months. The tribunal considered the joint submissions and agreed sanction but found the imposed conditions to be outside the permissible range. The tribunal ruled that no order should be made regarding costs, despite the parties’ agreement.

The final orders of the tribunal included the suspension of the pharmacist's registration for one month and the imposition of conditions on their registration, which were to be reviewed in twelve months. The tribunal also made clear that no order would be made as to costs, despite the joint submissions. This decision was made on the basis that the interests of justice did not require such an order. The tribunal granted liberty to apply for further orders if necessary.

Orders

Orders of the court

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

2. Pursuant to s 107(3)(d) of the Health Ombudsman Act 2013 (Qld), the registration of the respondent is suspended for a period of one month commencing on 1 February 2018.

3. Pursuant to s 107(3)(b) of the Health Ombudsman Act 2013 (Qld), the Tribunal imposes conditions on the registration of the respondent in accordance with the attached schedule of conditions.

4. Pursuant to s 109(2) of the Health Ombudsman Act 2013 (Qld), the National Law, Part 7, Division 11, Subdivision 2 applies to the conditions.

5. Pursuant to s 109(3) of the Health Ombudsman Act 2013 (Qld), the review period for the conditions is 12 months from the date of this order.

6. There be no order as to costs.

7. There be liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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