Health Ombudsman v DKJ - [2020] QCAT 268

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v DKJ [2020] QCAT 268

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

DKJ

(respondent)

APPLICATION NO/S:

[REDACTED]

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

30 April 2020 (Ex Tempore)

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

Assisted by:

Ms Karalyn Huxhagen
Ms Kerrie Kensell

Mr Paul Murdoch

ORDERS:
1.   The Tribunal decides that in respect of the matters alleged by the applicant, the respondent behaved in a way which constituted professional misconduct.

2.   The Tribunal reprimands the respondent.

3.   The parties bear their own costs of this proceeding.

4. Until further order, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:

(a)    the contents of a document or other thing produced at the Tribunal;

(b)   evidence given before the Tribunal;

(c)    any order made or reasons given by the Tribunal, is prohibited to the extent that it would:

            (i)     enable the respondent to be identified;

           (ii)     enable the name and location of the respondent’s then employer to be identified, including the names of other employees;

          (iii)     be any medical or psychological report about the respondent;

          (iv)     reveal details of traumatic or unpleasant events earlier in the respondent’s life;

           (v)     reveal the identity of the GP and the patients whose names were used by the respondent to obtain medications.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – self-medicating with prescription drugs – drugs acquired by deception – impairment – undertaking not to practice for a time – impairment resolved - sanction

Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107

Health Practitioner Regulation National Law (Queensland)

Queensland Civil and Administrative Tribunal Act 2009 (Qld),

Health Ombudsman v DeCelis [2019] QCAT 140

Health Ombudsman v Macdonald [2016] QCAT 473
Health Ombudsman v NLM [2019] QCAT 366
J v L & A Services Proprietary Limited (No.2) [1995] 2 Qd R 10
Legal Services Commission v XBV [2018] QCAT 332
Pharmacy Board of Australia v Christie [2016] QCAT 291

Pharmacy Board of Australia v Thomas [2011] QCAT 637

REPRESENTATION:

Applicant:

Z Vakeska, solicitor of Office of the Health Ombudsman

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013, s 103(1)(a) and s 104. Under s 126 of that Act, I constitute the Tribunal. I am sitting with assessors, Ms Huxhagen, Ms Kensell and Mr Murdoch in accordance with the Act, s 126. Their function is to advise me in relation to questions of fact: s 127.
The respondent was, at the relevant time, a registered pharmacist, and hence a registered health practitioner for the purposes of the Health Practitioner Regulation National Law (Qld) (National Law). The applicant alleges…

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: [2020] QCAT 268
Decision Date: 30 April 2020 (Ex Tempore)

CaseChat Overview and Summary

The matter involved a complaint brought by the Health Ombudsman against a pharmacist, DKJ, alleging misconduct. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the pharmacist's conduct constituted professional misconduct, as defined by the Health Ombudsman Act 2001. The Ombudsman alleged that the pharmacist had engaged in self-medication using prescription drugs obtained through fraudulent means, and that this conduct demonstrated impairment in his ability to practice.

The central legal issues before the Tribunal included whether the pharmacist's actions constituted professional misconduct, and if so, what the appropriate disciplinary sanction should be. The Tribunal had to consider the pharmacist's conduct in light of the standards of professional practice and the expectations placed on pharmaceutical chemists in Queensland. The evidence presented indicated that the pharmacist had used fraudulent means to obtain prescription drugs for his own use, which was a clear breach of professional standards. Furthermore, the Tribunal had to assess whether the pharmacist's actions had impaired his ability to practice safely and effectively.

In reaching its decision, the Tribunal concluded that the pharmacist's conduct constituted professional misconduct, as it involved dishonesty and a breach of trust. The Tribunal noted that the pharmacist had acknowledged his wrongdoing and had taken steps to address his impairment, including an undertaking not to practice for a period of time and completing a rehabilitation program. The Tribunal also considered that the pharmacist's impairment had been resolved and that he had demonstrated remorse. However, the Tribunal determined that a reprimand was an appropriate sanction, reflecting the seriousness of the misconduct while also acknowledging the pharmacist's efforts to address his impairment. The Tribunal ordered that the parties bear their own costs of the proceeding and imposed restrictions on the publication of certain details to protect the privacy of the pharmacist and others involved.

Orders

Orders of the court

1. The Tribunal decides that in respect of the matters alleged by the applicant, the respondent behaved in a way which constituted professional misconduct.

2. The Tribunal reprimands the respondent.

3. The parties bear their own costs of this proceeding.

4. Until further order, pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, publication of:

(a) the contents of a document or other thing produced at the Tribunal;

(b) evidence given before the Tribunal;

(i) enable the respondent to be identified;

(ii) enable the name and location of the respondent’s then employer to be identified, including the names of other employees;

(iii) be any medical or psychological report about the respondent;

(iv) reveal details of traumatic or unpleasant events earlier in the respondent’s life;

(v) reveal the identity of the GP and the patients whose names were used by the respondent to obtain medications.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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