PHARMACEUTICAL COUNCIL OF WA and GUILFOYLE
[2008] WASAT 150
•27 JUNE 2008
PHARMACEUTICAL COUNCIL OF WA and GUILFOYLE [2008] WASAT 150
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 150 | |
| PHARMACY ACT 1964 (WA) | |||
| Case No: | VR:53/2008 | 17 JUNE 2008 AND DECIDED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MS F CHILD (MEMBER) MR N P GARRITY (SENIOR SESSIONAL MEMBER) | 27/06/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Proper cause for disciplinary action found Pharmacist censured Pharmacist fined $300 Pharmacist to pay the Council's costs | ||
| B | |||
| PDF Version |
| Parties: | PHARMACEUTICAL COUNCIL OF WA JOHN CECIL GUILFOYLE |
Catchwords: | Vocational Regulation Pharmacist Failure to correctly fill prescription Penalty |
Legislation: | Pharmacy Act 1964 (WA), s 32(1)(c), s 32(3) |
Case References: | Nil |
Orders | (1) The Tribunal finds there is proper cause for disciplinary action against John Guilfoyle (the pharmacist) because he was guilty of carelessness in a professional respect when on 12 March 2007, 12 April 2007 and 13 June 2007, he failed to correctly fill prescriptions for Karvezide 150/12.5 mg tablets by dispensing Karvezide 300/12.5 mg tablets.,(2) The Tribunal censures the pharmacist.,(3) The Tribunal fines the pharmacist $300, which fine must be paid within 60 days.,(4) The Tribunal also orders the pharmacist to pay the costs of the Pharmaceutical Council of Western Australia fixed in the sum of $2,164.46, such costs to be paid within 60 days. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : PHARMACY ACT 1964 (WA) CITATION : PHARMACEUTICAL COUNCIL OF WA and GUILFOYLE [2008] WASAT 150 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MS F CHILD (MEMBER)
MR N P GARRITY (SENIOR SESSIONAL MEMBER)
- Applicant
AND
JOHN CECIL GUILFOYLE
Respondent
Catchwords:
Vocational Regulation - Pharmacist - Failure to correctly fill prescription - Penalty
Legislation:
Pharmacy Act 1964 (WA), s 32(1)(c), s 32(3)
(Page 2)
Result:
Proper cause for disciplinary action found
Pharmacist censured
Pharmacist fined $300
Pharmacist to pay the Council's costs
Category: B
Representation:
Counsel:
Applicant : Mr J Finlay
Respondent : Mr G Massey
Solicitors:
Applicant : JD Finlay & Co
Respondent : Holborn Lenhoff Massey
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The Pharmaceutical Council of WA made an application for disciplinary action in the State Administrative Tribunal alleging that the pharmacist, John Guildfoyle, failed to properly fill prescriptions on three occasions, and thereby engaged in conduct in the course of dispensing medicine that was likely to endanger members of the public, likely to bring the profession of pharmacy into disrepute, and constituted carelessness in a professional respect.
2 The pharmacist admitted the allegations.
3 The Tribunal found proper cause for disciplinary action existed, censured the pharmacist, fined him $300 and ordered that he pay the Council's costs.
Issue
4 The issue in these proceedings is what penalty should be imposed on John Guilfoyle, the respondent pharmacist, who has admitted the allegations the subject of the application made by the Pharmaceutical Council of Western Australia (Council), that he engaged in conduct in the course of dispensing medicine that was likely to endanger members of the public, likely to bring the profession of pharmacy into disrepute, and constitutes carelessness in a professional respect within the meaning of s 32(1)(c) of the Pharmacy Act 1964 (WA) (Pharmacy Act).
Facts
5 The pharmacist is a pharmaceutical chemist registered in the state of Western Australia under provisions of the Pharmacy Act.
6 At all material times the pharmacist was the proprietor of a pharmacy situated in Bayview Terrace, Claremont.
7 As a pharmaceutical chemist carrying on practice in Western Australia the pharmacist was required to adopt and maintain adequate professional standards so as to ensure that the knowledge and skills acquired by him were executed to a level of consistency that is essential for the delivery of quality professional services to consumers (the professional standards).
(Page 4)
8 The Council allege that the professional standards that the pharmacist is required to adopt include the implementation of a systematic dispensing procedure to be followed upon receipt of a prescription, including the procedures to be followed before dispensing, during the preparation phase and at the time of provision of the medicine to the consumer.
9 These professional standards are reflected in such publications as:
• Australian Pharmaceutical Formulary and Handbook (20th Edition), The Everyday Guide to Pharmacy Practice published by the Pharmaceutical Society of Australia, under the heading 'Dispensing Practice Guidelines' at p 360 - 361;
• The Competency Standards for Pharmacists in Australia 2003 published by the Pharmaceutical Society of Australia, under the heading 'Functional Area 4: Dispense Medicines' at p 34 - 35; and
• Professional Practice Standards Version 3 2006 published by the Pharmaceutical Society of Australia, especially Criterion 1 headed 'The pharmacist is aware of systems of good dispensing practice and can implement them' at p 44.
10 In this particular instance, on 12 March 2007, 12 April 2007 and 13 June 2007 a consumer attended the pharmacist's pharmacy and presented a duplicate of an original prescription for Karvezide 150/12.5 mg tablets written by a medical practitioner for her.
11 As the pharmacist on duty at the pharmacy, the pharmacist was required to ensure that the Karvizide tablets that were supplied were in fact 150/12.5 mg strength as prescribed by the medical practitioner.
12 On the dates referred to the consumer was supplied with Karvezide 300/12.5 mg tablets, which were twice the strength prescribed.
13 The pharmacist accepts that his conduct in dispensing the Karvezide tablets contrary to the prescription is conduct that is likely to endanger members of the public and bring the profession of pharmacy into disrepute and constitutes carelessness in a professional respect within the meaning of s 32(1)(c) of the Pharmacy Act.
(Page 5)
Pharmacist's plea in mitigation
14 Counsel for the pharmacist who appeared on behalf of the pharmacist in the Tribunal on 17 June 2008, on behalf of the pharmacist, admitted the facts and noted the findings that the Council asked the Tribunal to make.
15 Counsel for the pharmacist explained that the pharmacist did in fact have a systematic dispensing procedure that had been implemented. However, the pharmacist concedes that he made a mistake in not adopting his procedures on the dates in question.
16 Counsel submitted that it was purely and simply a mistake in following the procedures on the day in question. The pharmacist, who ordinarily has one and sometimes two staff members to assist him, was the only person on duty in the pharmacy on the first day and then repeated the mistake subsequently.
17 The pharmacy is a large pharmacy, with long premises and there are two tills. The pharmacist was serving customers and was also responsible for operating both tills and filling prescriptions. He concedes that when he was first asked to fill the prescription he was simply too busy to do so adequately. He accepts it was something that he should have tried to remedy by another means but he elected to fill the prescription. Accordingly it was not a failure to follow procedures because there were no procedures in place. It was simply a mistake that he made in the circumstances on the day.
18 Counsel for the pharmacist points out hat the pharmacist has been a pharmacist for some 30 years and has dispensed many thousands of prescriptions and this was an isolated incident.
19 Counsel for the pharmacist also emphasises that no harm was suffered by the consumer although his client concedes that there is the potential for that to occur when mistakes in dispensing occur.
20 In response to a question by the President, counsel for the pharmacist indicated the matter had come to light as a result of the consumer subsequently going to a different pharmacist and discovering that the prescription was for a different strength.
21 Indeed, counsel for the Council advised the Tribunal that the Council became aware that on a subsequent occasion another pharmacist also dispensed the tablets at the incorrect 300/12.5 ml strength.
(Page 6)
22 On a personal level counsel for the pharmacist indicated to the Tribunal that his client is now 63 years of age and has been working as a pharmacist since he was 21. He owned his own pharmacy, in different locations, since 1975. In 2007, he purchased the Claremont pharmacy, which he has recently sold.
23 It is unnecessary for the Tribunal to go into the detail of these matters, but counsel for the pharmacist indicated financial difficulties the pharmacist has experienced in relation to the Claremont pharmacy business.
24 He also noted certain health difficulties the pharmacist has experienced apparently since a criminal assault that he suffered in 2002. In particular the pharmacist has suffered from clinical depression.
25 Counsel for the pharmacist submitted that the Tribunal should take all these matters into account when setting penalty.
Council's submission on penalty
26 Counsel for the Council noted that the Council accepted the explanation provided by the pharmacist.
27 Counsel emphasised that proper practice requires that pharmacists dispense against the duplicate prescription that is presented at the time. If that had been done, then the second and third errors would not have occurred.
28 The Council emphasise that there are two elements to the allegation made to the Tribunal. First, the potential to endanger members of the public. Secondly, not to bring the profession of pharmacy into disrepute.
29 The Council emphasise that guidelines issued by the Pharmaceutical Society of Australia, the Pharmacy Guild and the like all emphasise the importance of maintaining a systematic dispensing procedure.
30 Counsel for the Council advised the Tribunal that the subsequent matter of another pharmacist also issuing the wrong prescription to the same customer on the same prescription had been dealt with by the Council, with a fine of $250 being imposed on that pharmacist, who was an employee in that other pharmacy.
31 The Council submits that a fine is an appropriate penalty in this case and does not suggest any higher penalty.
(Page 7)
The Tribunal's findings
32 In light of the admissions made by the pharmacist in respect of the dispensing conduct alleged, and set out above, the Tribunal finds there is proper cause for disciplinary action because the pharmacist is guilty of carelessness in a professional respect contrary to s 32(1)(c) of the Pharmacy Act.
33 In all the circumstances, the Tribunal is satisfied that this is a case where it is appropriate to impose a fine on the pharmacist and to censure him. The penalties are sufficient to ensure professional standards are upheld by pharmacists and the public adequately protected.
34 In this regard, it needs to be appreciated that under s 32(3) of the Pharmacy Act, (which is a 1964 Act that has not been amended terribly often) the disciplinary orders that the Tribunal may make are relatively limited, as follows:
"If in a proceeding commenced by an allegation under this section the State Administrative Tribunal is of the opinion that proper cause exists for disciplinary action, the Tribunal may -
(a) where that person is a pharmaceutical chemist, -
(i) order that his name be erased from the register;
(ii) order that for such period as is specified in the order, not being a period in excess of 3 years, he be prohibited from carrying on the practice of a pharmaceutical chemist, and that his licence be accordingly suspended;
(iii) impose on him a fine not exceeding $500; or
(iv) censure him;
(b) in the case of a company or friendly society -
(i) impose on it a fine not exceeding $500; or
(ii) censure it;
and
(c) in any case -
- (i) by order require any party to the proceedings to give an undertaking to the Council in such terms as the Tribunal specifies in the order, either personally or in the case of a company or friendly society under the hand of a proper officer; and
(ii) by order impose or vary any condition in relation to a licence or registration."
35 It is not necessary in a case like this, given the circumstances in which the mistake occurred, albeit a mistake that pharmacists must be at pains to avoid, that an order that the pharmacist's name be erased from the register be made or that the pharmacist be suspended from carrying on practice as a pharmaceutical chemist for a period, in order to protect the public. It is, however, appropriate to fine the pharmacist and to censure him so that pharmacists are reminded of their professional obligations in serving the public. A fine in excess of $500 is not possible under the Pharmacy Act. In the circumstances, the Tribunal considers a fine of $300 to be appropriate.
36 In setting the fine of $300 in this case, the Tribunal expressly takes note of the long period of service of the pharmacist and the fact, save in one prior occasion not directly relevant to these proceedings, he has not suffered any disciplinary action. The Tribunal also takes into account that under the existing legislation the maximum fine that can be imposed is $500. This is not the worst case the Tribunal can imagine in which a fine would be appropriate, so the fine of $300 in all the circumstances is adequate.
Conclusion and Order
37 For the reasons given above, the Tribunal finds and orders as follows:
(1) The Tribunal finds there is proper cause for disciplinary action against John Guilfoyle (the pharmacist) because he was guilty of carelessness in a professional respect when on 12 March 2007, 12 April 2007 and 13 June 2007, he failed to correctly fill prescriptions for Karvezide 150/12.5 mg tablets by dispensing Karvezide 300/12.5 mg tablets.
(2) The Tribunal censures the pharmacist.
(Page 9)
- (3) The Tribunal fines the pharmacist $300, which fine must be paid within 60 days.
(4) The Tribunal also orders the pharmacist to pay the costs of the Pharmaceutical Council of Western Australia fixed in the sum of $2,164.46, such costs to be paid within 60 days.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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