Pharmacist Board of Queensland v Mikhail

[2010] QCAT 621

CITATION: Pharmacist Board of Queensland v Mikhail [2010] QCAT 621

PARTIES:	Pharmacist Board of Queensland (Applicant)
v
Nasr Mikhail (Respondent)

APPLICATION NUMBER:   HPF021-09

MATTER TYPE: Occupational Regulation

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham,
Deputy President
Assisted by Assessors:
Ms A Christou
Ms H Hattingh
Ms P Mathers

DELIVERED ON: 2 December 2010

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Mr Mikhail has engaged in unsatisfactory professional conduct.

2.    Mr Mikhail is reprimanded.

3.    The undertakings by Mr Mikhail to the Board which appear in the schedule are approved.

4.    Upon Mr Mikhail filing in the Tribunal a copy of signed undertakings in those terms, the proceedings will be finalised.

5.    The undertakings must be recorded in the Board’s Register for the period they are in force.

6.    Mr Mikhail must pay the Board’s costs of these proceedings as agreed or assessed on a standard basis against the scale applicable in the District Court of Queensland.

CATCHWORDS : 

HEALTH PRACTITIONER – GROUND FOR DISCIPLINARY ACTION – where registrant convicted of regulatory offence – where registrant volunteered undertakings

Acts Interpretation Act 1954 s 7

Health Practitioners (Professional Standards) Act 1999 ss 123, 124(1)(g), 124(1)(c)

Statutory Instruments Act 1992 s 7

REASONS FOR DECISION

1. Mr Mikhail is a pharmacist formerly practising in Hughenden, North Queensland.  His pharmacy is the only one to service a community in a 250km radius.  The Pharmacists Board of Queensland referred Mr Mikhail to the Tribunal asserting grounds exist to take disciplinary action against him.  The grounds relied upon are his convictions for offences relating to his transactions with controlled drugs and other allegations relevant to his practice management.

1. In June 2008, Mr Mikhail pleaded guilty to a number of offences under the Health (Drugs and Poisons) Regulation 1996. They related to deficiencies in his labelling of controlled drugs (9 offences); his failure to report dispensation of controlled drugs (3 offences); and his failure to record transactions involving controlled drugs (2 offences). He was fined $4,000 but no conviction was recorded. Conviction of an offence against an Act[1] of the State related to the practise of the profession is a ground for disciplinary action[2].

   [1]Act includes Regulation, Acts Interpretation Act 1954 s 7; Statutory Instruments Act 1992 s 7

   [2]Health Practitioners (Professional Standards) Act 1999 s 124(1)(g).

1. The other allegations made by the Board are that Mr Mikhail:

(a)   failed to maintain accurate and complete records of controlled drugs received and dispensed;

(b)   failed to record accurate stock levels of controlled drugs;

(c)   failed to comply with requirements for access to and storage of controlled drugs;

(d)   failed to store and maintain vaccines at an appropriate temperature;

(e)   failed to record details of sale of pseudoephedrine;

(f)   failed to adequately label dispensed controlled drugs;

(g)   failed to appropriately dispose of or remove labelling from medication returned or not claimed by a customer; and

(h)   wrongly or inappropriately dispensed medication to a number of patients, (including wrongly substituting different brands of medication which were not interchangeable).

1. That conduct occurred in the period August 2007 to September 2008.  Of concern is that there is some repetition of the type of conduct which constituted the charges faced by Mr Mikhail under the Regulation.  More so, it occurred after he had been charged and convicted of those offences.  There is no evidence, however, that any patient was harmed as a result of Mr Mikhail’s practices.

1. The Board alleged these practices constitute a pattern of conduct which falls below reasonable expectations of a pharmacist and which demonstrate incompetence or a lack of adequate knowledge, skill, judgement or care in his practice.

1. Mr Mikhail accepts this constitutes unsatisfactory professional conduct, although he argues it reflects negligence rather than a lack of adequate knowledge, skill, judgement or care.  This submission rather misses the point that a lack of care lies at the heart of the concept of negligence.  Mr Mikhail’s characterisation of his conduct as negligent is consistent with a finding that he demonstrated a lack of care in his practice, within the meaning of the definition of unsatisfactory professional conduct[3].  The Tribunal finds that Mr Mikhail has engaged in unsatisfactory professional conduct.

   [3]Health Practitioners (Professional Standards) Act 1999 Schedule definition of unsatisfactory professional conduct (b)

1. Mr Mikhail’s registration was suspended on 23 October 2008.  Since then he has used locums to manage his pharmacy.  He has experienced both financial and personal stress during this period.  He contends there is no need for any further period of suspension.  The Board has not argued there is.

1. Mr Mikhail has not worked as a pharmacist now for more than 2 years.  In that time he says he has critically reviewed his former practices and has resolved to adopt all reasonable measures to ensure proper compliance with Regulations and Guidelines.  There is evidence of support for him in his community, including from a General Practitioner who has practised in Hughenden for 25 years.

1. Mr Mikhail has offered undertakings which he considers adequately address the past deficiencies in his practice.  They involve:

(a)   Mr Mikhail becoming a member of a professional association;

(b)   Mr Mikhail being supervised by a registered pharmacist who operates a Quality Care Pharmacy Program (QCPP) or equivalent accredited pharmacy;

(c)   The supervision to occur over 3 months at not less than 27 hours per week over 3 consecutive days; and

(d)   The accreditation of his pharmacy through the QCPP or equivalent program.

1. Mr Mikhail opposed the Board’s submission that he should undertake a competency assessment by the Australian Pharmacy Competency Assessment Tool.  He completed this some time ago.  However the practices involved in these proceedings occurred after that assessment and some of them indicate there may well be ongoing competence issues.  A further assessment would deal with that concern and has been added to the undertakings proposed by the parties.

1. Mr Mikhail is to bear the costs of those requirements.  The costs that he has undertaken responsibility for include those costs of employing a locum to ensure the pharmacy, an essential health service in a remote regional location, may continue to operate while Mr Mikhail is undergoing supervision.  Mr Mikhail has also agreed to meet the costs of these proceedings.

1. There is no period proposed for the undertakings.  Their terms assume compliance within 6 months.  The Tribunal decided a 6 month mentoring program should follow on from the 6 months of supervised practice.  This will extend the term of the undertakings to 12 months.

1. Mr Mikhail’s poor practice extended over a little over a year and continued even after he had pleaded guilty to the offences under the Regulation.  This indicates a need for strong reinforcement of improved practice.  There was no adverse outcome for any patient.  However, the risks to his patients, for some of the practices for which he is being disciplined, were very real and present and it was to Mr Mikhail’s good fortune that they were not realised.

1. The purpose of disciplinary proceedings is not punitive.  They are intended to protect the public; uphold standards of practice and maintain public confidence[4].  The undertakings, strengthened in the ways required by the Tribunal, are adequate to achieve those purposes.  Failure to comply with them is a ground for disciplinary action[5].

   [4] Health Practitioners (Professional Standards) Act 1999 s 123.

   [5] Health Practitioners (Professional Standards) Act 1999 s 124(1)(c).

1. The period that Mr Mikhail has been suspended from practice will deter him from a repetition of his past neglect.  It will also serve as a deterrent to others who might be inattentive or neglectful of proper practice.

SCHEDULE OF UNDERTAKINGS

Pursuant to s 241(2)(c) of the Health Practitioners (Professional Standards) Act 1999 Mr Nasr Mikhail (the ‘Registrant’) offers the following undertakings to the Pharmacists Board (‘the Board’):

A.The Registrant will:

1.    Within one (1) month of entering into these undertakings, provide the Board evidence he has joined a professional association.  The Registrant will maintain such membership.

2.    Within one (1) month of entering into these undertakings, nominate a supervisor for approval by the Board.  The supervisor must be a registered pharmacist, must operate a Quality Care Pharmacy Program (QCPP) or equivalent accredited pharmacy and be willing to supervise the Registrant at his/her pharmacy business;

3.    Authorise the supervisor to provide a report to the Board on a monthly basis, in a format approved by the Board, following an assessment of the Registrant’s performance and progress;

4.    Be supervised for a period of six (6) months, such supervision to be conducted at a frequency of not less than twenty seven hours (27) per week over three consecutive days;

5.    Upon the conclusion of the supervision period, participate in a mentoring program which includes the following elements:

(a)The mentor must be the supervisor of another pharmacist of appropriate maturity and experience, preferably regionally based, approved by the Board prior to the supervision period concluding;

(b)The program must run until these undertakings expire;

(c)The mentor and the Registrant must meet at the times and frequency decided by the mentor, but at least monthly;

(d)The mentoring relationship should be directed to:

i.Practice management;

ii.Regulatory requirements;

iii.Professional development;

iv.Application of risks to patient health and well being;

v.Strategies for accessing support in a remote location and professional obligations as sole pharmacist in a locality.

6.    Within a period of six (6) months from the date the Registrant successfully completes the period of supervision, complete the process of gaining QCPP or equivalent accreditation for the Hughenden Pharmacy or pharmacies as the Registrant owns at that time;

7.    Agree to pay the costs associated with:

(a)His supervision including the preparation and submission of reports by his supervisor to the Board;

(b)The maintenance of a continuing locum arrangement of the Hughenden pharmacy;

(c)The process of having the Hughenden pharmacy accredited by QCPP or equivalent; and

(d)The Board’s costs in pursing this matter.

8.    Within six (6) months, successfully complete a competency assessment by the Australian Pharmacy Competency Assessment Tool and provide evidence of that to the Board.

B.The Registrant acknowledges that if he fails to comply with these undertakings or any of them within the time stipulated his conduct will be referred to the Tribunal for determination.

C.These undertakings apply for a period of twelve (12) months from the date they are entered into.