Health Ombudsman v Smith - [2025] QCAT 159

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Health Ombudsman v Smith [2025] QCAT 159

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

LINDA SMITH

(respondent)

APPLICATION NO/S:

OCR170-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

19 February 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Jones
Assisted by:
Ms J Feeney
Mr I Fredericks
Ms M Ridley

ORDERS:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. Pursuant to s 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct.

2. Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.

3. Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a pharmacist for a period of three (3) months.

4. There be no order as to costs.

5. The existing non-publication order made by the Tribunal on 27 July 2022 remains in place.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – where the respondent was a registered pharmacist – where the respondent engaged in unsafe dispensing practices in relation to three patients – where the respondent dispensed medications to patients without prescriptions – where the respondent made false or misleading electronic dispense records – where the respondent made prompt admissions to the conduct – where the parties are in agreement regarding the appropriate sanction sanction – whether the respondent should be disqualified from applying for registration as a pharmacist for a period of time

Health (Drugs and Poisons) Regulation 1996 (Qld)

Health Practitioner Regulation National Law(Queensland)
Health Ombudsman Act 2013 (Qld)

Queensland Civil and Administrative Tribunal Act2009 (Qld)

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

This proceeding is concerned with an application brought by the Director of Proceedings on behalf of the Health Ombudsman (‘applicant’) against Linda Smith (‘respondent’).
On 27 July 2022, this Tribunal made specific orders concerning the non-publication of any material that might lead to the identification of any patient or family member of any patient of the respondent. Those orders are to remain in place until further order or orders.
The relief sought against the respondent by the applicant is as follows:
(a)a finding that the respondent has behaved in a way that constitutes professional misconduct;
(b)the respondent is reprimanded;
(c)the respondent is disqualified from applying for registration as a pharmacist for a period of three months;
(d)there be no order as to costs;
(e)the existing non-publication order issued by the Tribunal on 27 July 2022 remains in place.
In paragraphs 13 to 14 of the submissions filed on behalf of the respondent, it is said:
The respondent has agreed to the proposed sanction and concurs with the applicant’s submission as to how the Tribunal ought to deal with the proposed sanction when agreed as between the parties.
The respondent submits that while she accepts the conduct amounts to professional misconduct, it is conduct at the lower end of the scale of such conduct...
It is, of course, a matter for the Tribunal to determine the final outcome of proceedings such as this, having regard to the relevant facts, matters, and surrounding circumstances. However, that the parties are in agreement as to the appropriate outcome is a significant matter to be taken into account, particularly when both parties are legally represented as is the case here.
The respondent is 71 years of age at the current time. In the submissions filed on behalf of the respondent, under the heading “Overview”, it is said that at all material times, the respondent:
(a)was registered under the Health Practitioner Regulation National Law(Queensland) as a pharmacist holding general registration with the Pharmacy Board of Australia (‘Board’);
(b)was a health service provider within the meaning of section 8(a)(i) of the Health Ombudsman Act 2013 (Qld) (‘HO Act’);
(c)has a history as a diligent pharmacist with no prior disciplinary matters;
(d)owned and practised as a pharmacist at the Springwood Day & Night Pharmacy in Springwood, Queensland (‘Pharmacy’);
(e)has expressed deep remorse for the conduct that has resulted in these proceedings;
(f)acted to assist the staff of the Health Ombudsman during its investigation; and
(g)has made admissions to the conduct as soon as she was able to.
While the applicant appears to have some degree of reservation concerning the issues of remorse and insight, the Tribunal intends to proceed on the basis of the overview advanced on behalf of the respondent.
It is to be noted that the respondent has held registration with the Board since July 2010 and before that, since 1973. However, she did not renew her registration in September 2023 and, as a result of that, her registration lapsed on 30 November 2023.
There are four allegations levelled against the respondent which have been admitted to by her.
Allegation one involves three instances of unsafe dispensing of medication. These three instances can be particularised as follows.
It is alleged that the respondent engaged in unsafe dispensing practices by dispensing Stilnox CR to Patient JC in a frequency and quantity that was excessive. It has been identified that Patient JC attended the Pharmacy and presented prescriptions from multiple prescribing practitioners:
a total of 13,902 [Stilnox] CR 12.5 mg tablets dispensed for JC at the [Pharmacy by the respondent and the other pharmacist, NJ].
The respondent dispensed Stilnox CR 12.5 milligram tablets to JC on approximately 101 occasions and on the part of NJ, on approximately 156 occasions. There can be little room for doubt that the respondent was aware or ought to have been reasonably aware that NJ was also dispensing that medication to JC. Also, during the dispensing period, the respondent dispensed Stilnox CR to JC on two consecutive days on eleven occasions, and on three consecutive days on one occasion.
In respect of the second patient, CH, from 1 January 2017 to 31 December 2018 (730 days in total), the respondent engaged in unsafe dispensing practices by dispensing Pethidine to CH in a frequency and quantity that was excessive. That increased the risk of harm to CH through tolerance, overdose or drug diversion. During the dispensing period, the respondent knew, or ought to have known, that CH was a person with a history of opiate dependence.
A total of 1,714 ampoules of Pethidine were dispensed to CH at the Pharmacy by the respondent and NJ. The respondent dispensed 900 Pethidine ampoules on 27 occasions, and NJ dispensed 724 pethidine ampoules on 38 occasions. The prescription stated: “Script should last seven days. Next script not to be filled until a specified date.” That is, seven days later. On occasions, the respondent dispensed a new or repeat prescription for CH less than seven days from the previous script or within 24 hours of the script being dispensed by NJ.
In respect of the third patient, SL, the conduct concerning that patient can be summarised as follows. Between 22 January 2017 and 11 December 2018 (689 days), the respondent dispensed Zolpidem GH tablets 10 milligrams at a dose that was excessive, thereby increasing the risk of harm through tolerance and dependence. In particular, the respondent and NJ dispensed 1,134 Zolpidem tablets, being an average of 16.5 milligrams per day, when the recommended dose is 10 milligrams per day. The respondent also dispensed Zolpidem on numerous occasions when the previous prescription dispensed at the Pharmacy ought to have been reasonably known not to have been exhausted.
The second allegation against the respondent is that on numerous occasions (28 in total) from 2017 to 2018, the respondent dispensed Stilnox CR to patient JC without a prescription. That conduct was contrary to the requirement for a prescription to dispense Schedule 4 medications.
The third allegation is that of making false or misleading electronic dispense records. That conduct could be summarised as follows: in relation to the instances mentioned above in relation to patient JC and on an additional three occasions, the respondent generated false or misleading records in the computerised database at the Pharmacy. The respondent knew the records were false or misleading because she knew there were no lawful prescriptions. Her conduct contravened section 216 of the Health (Drugs and Poisons) Regulation 1996 (Qld).
The fourth allegation was one of failing to make or maintain accurate dispensing records. That allegation speaks for itself.

Discussion and Sanction

As has already been referred to, the respondent admits the conduct as alleged on the part of the applicant. The allegations concerning patients JC, CH and SL identify serious examples of professional misconduct that extended over extensive periods of time. That is so, notwithstanding that the respondent had apparently believed that she was acting in the patient’s best interests, had counselled them about the risks of dependency and the steps that could be taken to reduce that risk. It should also be noted that there is no suggestion that the respondent had acted for personal untoward financial benefit.
Unsurprisingly, the lawyers representing both parties recognise that deterrence looms particularly large in cases such as this, particularly the need to send an appropriate message of general deterrence. On balance, the Tribunal has reached the conclusion that the orders and sanctions agreed to on behalf of the parties are appropriate.
Accordingly, the Tribunal makes the following findings and orders:
Pursuant to s 107(2)(b)(iii) of the HO Act, the respondent has behaved in a way that constitutes professional misconduct.
Pursuant to s 107(3)(a) of the HO Act, the respondent is reprimanded.
Pursuant to s 107(4)(a) of the HO Act, the respondent is disqualified from applying for registration as a pharmacist for a period of three (3) months.
There be no order as to costs.
The existing non-publication order made by the Tribunal on 27 July 2022 remains in place.