Health Ombudsman v Healy - [2020] QCAT 314

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Healy [2020] QCAT 314

PARTIES: HEALTH OMBUDSMAN

(applicant)

v

TARYN LEE REBECCA HEALY

(respondent)

APPLICATION NO/S:

OCR324-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 September 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Robertson

ORDERS:
1. In respect of Allegation 1 of the Amended Disciplinary Referral, the respondent has behaved in a way that constitutes unprofessional conduct, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld);

2. The respondent be cautioned, pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld); and

3. No order as to costs.

CATCHWORDS:
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – self-medicating with prescription drugs – respondent self-dispensing drugs – remorse – sanction

Health Ombudsman Act 2013 (Qld) s 4, s 5, s 107

Craig v Medical Board of South Australia (2001) SASR 545

Health Ombudsman v Antley [2016] QCAT 472
Health Ombudsman v Hardy [2018] QCAT 416
Health Ombudsman v Passmore [2020] QCAT 92
MedicalBoard of Australia v Dolar [2012] QCAT 271
Pharmacy Board of Australia v Christie [2016] QCAT 291

REPRESENTATION:

Applicant:

Director of Proceedings on behalf of the Health Ombudsman

Respondent:

Armfield O’Brien Law

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

The Tribunal is dealing with an amended referral filed by the applicant director on 11 March 2020 pursuant to sections 103(1) and 104 of the Health Ombudsman Act 2013 (the Act).
The respondent is a qualified but presently unregistered pharmacist. She was 27 years of age when she dispensed to herself without a prescription on two occasions (11 March 2016 – Duromine; and 14 March 2016 – Diazepam) both of which are Schedule 4 drugs.
She holds degrees in Science and Pharmacy from the University of Queensland. She was first registered with the Pharmacy Board of Australia (the Board) on 16th January 2014.
On 14 June 2017, she surrendered her registration and has not worked as a pharmacist since.
The parties have filed an agreed statement of facts and a joint submission as to the proper characterization of the conduct and sanction. It is only in exceptional circumstances that the Tribunal should depart from the agreed position of the parties e.g. where the agreed sanction for the admitted conduct is outside the proper range of sanctions imposed by the Tribunal in comparable cases and/or the characterization of the conduct as agreed is again inconsistent with previous cases involving similar facts.
The respondent worked at either the Patrick Road or Ferny Hills Pharmacy (the pharmacies) both before and after her registration which included the two occasions of dispensing without a prescription the subject of the amended referral. She worked as a pharmacy assistant at the pharmacies from December 2011 to 2013 and then as an intern between 2014 and 2015 after…

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.

Keep reading for free

Create a free CaseChat account to read Health Ombudsman v Healy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] QCAT 314
Decision Date: 2 September 2020

CaseChat Overview and Summary

In the matter of Health Ombudsman v Healy, the respondent, a registered pharmacist, faced disciplinary proceedings for self-medicating using prescription drugs. The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT), with the Health Ombudsman seeking disciplinary action based on allegations of unprofessional conduct. The central issue before the court was whether the respondent's actions constituted unprofessional conduct within the meaning of section 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld). Additionally, the court needed to determine the appropriate sanction, if any, that should be imposed on the respondent.

The court considered the evidence and submissions presented by both parties, focusing on the respondent's self-dispensing of drugs and the circumstances surrounding the incident. The court found that the respondent's actions did indeed constitute unprofessional conduct as they breached the standards expected of a pharmacist. However, the court also noted the respondent's remorse and the absence of any previous disciplinary history, which were mitigating factors. Balancing these considerations, the court decided that a caution, as provided for in section 107(3)(a) of the Act, was the appropriate sanction in this case.

The final orders of the court were that the respondent had engaged in unprofessional conduct, specifically self-medicating with prescription drugs, and was to be cautioned. The court did not order any costs to be paid by the respondent.

Orders

Orders of the court

1. In respect of Allegation 1 of the Amended Disciplinary Referral, the respondent has behaved in a way that constitutes unprofessional conduct, pursuant to s 107(2)(b)(ii) of the Health Ombudsman Act 2013 (Qld);

2. The respondent be cautioned, pursuant to s 107(3)(a) of the Health Ombudsman Act 2013 (Qld); and

3. No order as to costs.

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.