Pharmacy Board of Australia v Arulogun - [2013] QCAT 685

CITATION:

Pharmacy Board of Australia v Arulogun [2013] QCAT 685

PARTIES:	Pharmacy Board of Australia (Applicant)
v
Mr Stephen Oluboyede Arulogun (Respondent)

APPLICATION NUMBER:

OCR098-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Hon JB Thomas, Judicial Member
Assisted by: Dr K Walduck, Mr A Petrie, and Mr M Green

DELIVERED ON:

13 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application adjourned until 17 January 2014, with liberty to the parties on or before that date to advise the Tribunal in writing about the provision of undertakings to the Board and whether such undertakings are acceptable to the Board, and to provide any further submissions on the orders now proposed.

CATCHWORDS:

HEALTH PRACTITIONERS – PHARMACIST – DISCIPLINARY PROCEEDINGS – Health Practitioner Regulation National Law Act 2009 Reference under s 193 of Act – function of the Tribunal when parties agree upon terms of proposed order – independent discretion of Tribunal required – orders limited to those authorised by s196 – constitution of Tribunal – assessors required under ss 398B, 398I, 398L and 398R of Health Practitioners (Disciplinary Proceedings) Act 1999 – criminal activity, including supply of PSE – breach of conditions imposed by the Board after pharmacist's arrest – parties agreeing in proposed order upon conditions not authorised under s 196 –

opportunity given to pharmacist to give similar undertakings to the Board – two years appropriate period of disqualification from applying for re-registration when other restrictions (including his undertaking not to own control or profit from any pharmacy, other than as an employed pharmacist for a period of five years) taken into account – appropriate level of overall sanction – no jurisdiction to apply conditions to any re-registration of respondent – observations on form of order

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION
Jurisdiction

This is a referral from the Pharmacy Board of Australia under s 193 of the National Health Practitioner Regulation National Law. That law is scheduled to the Health Practitioner Regulation National Law Act 2009 (Qld), and, to the extent that it is set out in the schedule, is binding law in this State. The relevant schedule will be referred to as “the adopted National Law”. It commenced operation on 1 July 2010.
QCAT is the “responsible Tribunal” with jurisdiction to deal with referrals made under s 193 of the adopted National Law.[1]
[1]Health Practitioner Regulation National Law Act 2009 (Qld) s 6; and s 5 (definition of “responsible Tribunal” in the adopted National Law).
Under the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), in the absence of any different provision under some other act, references to “QCAT” are references to a QCAT tribunal member, or members selected by the president to constitute a particular Tribunal.[2] Formerly, tribunals which dealt with disciplinary matters of this kind were constituted under the Health Practitioners (Disciplinary Proceedings) Act 1999 (“the Disciplinary Proceedings Act”), and included provision for the assistance of three assessors.[3] Plainly the present reference is one by the present National Pharmacy Board in relation to conduct subsequent to the commencement[4] of the adopted National Law. However a similar procedure involving consultation with assessors has been preserved for proceedings of the present kind through amendments to the Disciplinary Proceedings Act in 2010, which now appear in the act as sections 398B, 398I, 398L and 398R of that Act.
[2]QCAT Act ss 161, 165.
[3]The Disciplinary Proceedings Act 1999 s 31.
[4]Commencement date 1 July 2010.
Accordingly, this Tribunal has been constituted as indicated above.

Facts and Circumstances

At all material times since February 2010 Mr Arulogun was registered as a pharmacist, and, through a company of which he had sole control, practised pharmacy at the Mt Gravatt Discount Drug Store formerly known as Fergusons Mt Gravatt Day & Night Pharmacy. In May 2011 police searched his pharmacy and home and seized various restricted drugs and poisons.
He was charged with the following offences:
a) supplying relevant substances or things (pseudoephedrine PSE) under s 9B of the Drugs Misuse Act 1986 to a patient of the pharmacy;
b) possessing dangerous drugs (methadone) at his residential address, under s 9 of the Drugs Misuse Act;
c) possessing relevant substances or things (TSE) at his residential address under s 9A(1) of the Drugs Misuse Act; and
d) unlawful possession of restricted drugs under s 204 of the Regulation.
The Pharmacy Board was notified of the charges and it promptly imposed conditions upon his practice. These included prohibition of obtaining or dealing with various prescribed drugs, prohibition from possessing any keys to the pharmacy, and a requirement that he surrender the keys to another pharmacist employed by him. He was also prohibited from entering the pharmacy unless accompanied by another pharmacist employed by him. Further restrictions along similar lines were imposed on 7 October 2011.
On 21 November 2011 Mr Arulogun was arrested and further charges were laid including two counts of supplying a dangerous drugs, two counts of possessing a dangerous drug (temazepam and suboxone) and one count of possessing codeine.
He indicated that he would plead guilty and was dealt with in the Brisbane Magistrates Court on 23 January 2012. The effect of penalty was 18 months imprisonment with a non parole period of six months.
He served his term and was released from custody on 23 July 2012.
The conditions included that he was only permitted to practice in a position that proved by the Board, and was prohibited from dealing with any scheduled four restricted and schedule eight controlled drugs as well as any products or medications containing PSE.
The additional conditions in October included a prohibition on him electroncially accessing the pharmacy records, and a prohibition upon his entering any pharmacy.
The evidence shows that in a number of respects he breached these conditions and did so quite deliberately.
Mr Arulogun's current status is that he is no longer a registered pharmacist. His application for renewal of registration for the period December 2011 to November 2012, was refused by the Board and his name was removed from the national register on 13 August 2013.

Issues

The parties to this litigation are agreed upon the orders which they submit this Tribunal should make in this case. However an independent discretion must always be exercised by this Tribunal. The exercise of its powers are for the protection of the public and the maintenance of professional standards. Consent orders concerning sanctions and the final disposition of such disciplinary applications are not binding in this jurisdiction,[5] although of course parties are encouraged to try to reach agreement at all stages, including during the compulsory conference.
[5]Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [9], [31]; Medical Board of Australia v Grant [2012] QCAT 285 at [60]; Medical Board of Australia v Martin [2013] QCAT 376 at [92].
The imposition of conditions concerning future registration may produce jurisdictional problems, even though the parties are agreed upon the terms of the sanction that should be imposed. The present matter is such a case. It raises the question whether this Tribunal can impose conditions on any future registration of Mr Arulogun, and whether this would be beyond the powers conferred by s 196 of the adopted National Law.
The question also necessarily arises whether the agreed sanction is consistent with sanctions imposed in comparable cases in this area of practice, and overall whether the level of sanction is appropriate.

Orders proposed by the parties

1.Pursuant to Section 196(1) of the Health Practitioner Regulation National Law Act 2009 (“National Law”), Stephen Arulogun (“the Former Registrant”) has behaved in a way that constitutes professional misconduct.
2.Pursuant to Section 196(2)(4)(a) (sic), the Former Registrant may not apply to be re-registered as a pharmacist for a period of two years form the date of the Tribunal’s decision.
3.Pursuant to Section 196(2)(b) of the National Law, the following conditions be imposed on any future registration of the Former Registrant:
(a)The Former Registrant must provide the Board (or its delegate) with evidence of his successful completion of a tertiary course in ethical decision-making within twelve months.
(b)In relation to Order 3(a) above, the course is to be nominated by the Former Registrant and approved of in writing by the Board (or its delegate) prior to his commencement of the course.
(c)The Former Registrant is to undergo a period of two years supervised practise in an accredited pharmacy.
(d)The Former Registrant must participate in the mentoring program for three years which includes the following elements:
(i)The Former Registrant is to nominate a mentor, for the approval of the Board (or its delegate), who is a practising pharmacist and senior to the Former Registrant in age and experience.
(ii)The Former Registrant must meet with the mentor at a frequency determined by the mentor, however no less than on a monthly basis for a duration of one hour every month.
(iii)The mentoring relationship will be directed to ethical decision making, including the challenges of working in the pharmacy profession, with a particular focus on professional obligations and personal conflicts.
(iv)The Former Registrant will authorise the mentor to provide a report in writing at the end of each quarter and at the completion of the mentoring period.

(e)The Former Registrant is only permitted to practise has profession at a pharmacy approved by the Board and which is accredited with the Quality Care Pharmacy Programme accreditation, or equivalent accreditation.
(f)The Former Registrant must not own a pharmacy, either in his own right or in partnership, for a period of five years.

4.Details of the conditions imposed on any future registration of the Former Registrant be recorded on the Board’s register for the period the conditions are in force.
5.Pursuant to Section 116(3) (sic) of the National Law, the review period for any conditions imposed on the Former Registrant’s future registration is five years.
6.The Former Registrant is not permitted to apply to the Chief Executive, Queensland Health, under the Health (Drugs and Poisons) Regulation 1996 (Qld) for reinstatement of his unrestricted endorsement for PSE for a period of two years from the date of the Tribunal’s decision.
7.Pursuant to section 195 of the National Law, the Former Registrant pay the Board’s costs of and incidental to this matter to be agreed or assessed on the District Court Standard Scale.

No jurisdiction to impose conditions on future registration

I respectfully agree with the analysis of Judge Horneman-Wren SC in Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 395 that the adopted National Law does not allow the Tribunal to order conditions to be imposed on future registration. Section 196 states the Tribunal’s powers to make orders in such matters, and plainly the stated powers to ‘impose a condition on the practitioners registration’ are references to existing registrations, not future applications.
I also agree with the observations that an undertaking to the Board of appropriate future action by the offending registrant can be taken into account by this Tribunal in mitigation of sanction. Failure by the registrant to abide by the undertaking without reasonable excuse would no doubt provide convincing evidence of his insincerity and unsuitability to the Board to which he applied for re-registration.
The present system under the adopted National Law does not require or empower a disciplinary Tribunal to second-guess the conditions of future re-registration or to fetter the discretion of the Board at that stage. That exercise is for the delegate or delegates of the Board who are appointed to consider such a future application. So far as cancellation, suspension of registration and reapplication for registration or endorsements are concerned, the jurisdiction of the present Tribunal is relevantly limited to preventing the offending registrant from reapplying for registration for a specified period, or to specifying a period to which a suspension of registration is to operate.
It is appropriate that the giving of any such undertakings be taken into account by this Tribunal in mitigation of sanction.
One would expect that any future Board which deals with any application for re-registration would in any event be concerned about imposing conditions that would be best designed to avoid relapse on his part, and that it would impose whatever conditions it could to limit the risk of future transgression. As already indicated, it is not appropriate that an order of this Tribunal should fetter the jurisdiction of the National Board to deal with an application for registration. But this Tribunal certainly has the power to fetter Mr Arulogun’s right to apply. For example an order could be made that would prevent him from applying for a very extensive period, and an effective ban for very many years would be open.
Speaking generally, there is no good reason why a tribunal might not take into account in mitigation of a period of suspension or cancellation the fact that an appropriate undertaking has been given to the Board by an erring pharmacist. The suggested undertakings in the present case involve future mentoring and re-education, and Mr Arulogun's undertaking not to own or be in a position to control or manage any pharmacy for a period of five years.
Discussion
It is noted that many of the allegations made by the Board were quickly admitted by Mr Arulogun, and that the Board has agreed not to pursue the allegations that were not admitted. Accordingly our decision will be confined to the admitted facts.
Credible and generally favourable references have been tendered on Mr Arulogun’s behalf.
He obtained a Bachelor of Pharmacy around 2005 and was relatively new to the profession when he undertook his criminal activity.
He made early admissions and cooperated with the Board throughout these proceedings.
Various supportive character references were provided.
He has a long history of depressive disorder, anxiety, panic disorder, and is described by a psychiatrist as having a narcissistic personality disorder. His psychiatrist also presented a prognosis, which he described as ‘unclear, probably guarded’ and depending very much on his motivation towards some ongoing psychotherapy.
He was under financial stress at the relevant time.
Indeed, he engaged in illegal conduct in order to make money. His excuse is that his pharmacy had lost business and he was under economic pressure. This hardly mitigates his criminal activity.
Plainly his conduct was of the kind that would assist to promote the manufacture of illicit drugs in the community and such conduct brings discredit to the pharmacy profession and betrays the public trust that pharmacists endeavour to preserve.
After his arrest, the Board imposed various restrictions on him which he disregarded. This conduct was covert and continued over an extended period.
There is no evidence of any ongoing criminal association or activity on his part. If there were, the suspension or cancellation would need to be considerably longer. The main danger in the present matter is the risk of relapse, and this depends very much upon the company that he keeps and the influences to which he is subjected. To this end the conditions concerning further education and guidance are very relevant.
His acceptance of monitoring and the undertaking of appropriate courses may well assist to minimise the risk. The most effective way to ensure that he will actually undertake the various courses of action that have been suggested seems to be to obtain an undertaking from him to the Board that he will do these things. Failure by the registrant to do so in due course would no doubt provide convincing evidence to the Board to which he applied for re-registration of his insincerity and unsuitability.
It is to be noted that proposed restriction upon his owning a pharmacy (in paragraph 3(f) of the proposed order set out in paragraph [17] above) could be easily sidestepped, and needs both strengthening and widening. It is suggested that the undertaking to the Board on this point should be that he will not own, or have a share or shares in, or be in a position to manage, control or profit from involvement in the business of any pharmacy, other than as an employed pharmacist, for a period of five years.
A factor in this case is that since the misconduct in question, Mr Arulogun’s practice has been severely restricted, and may be inferred that he has incurred considerable economic disadvantage by reason of the imposition of conditions by the Board and its refusal to renew his registration. This disadvantage has now continued for a period of more than two years. Accordingly, when the actual sanction is imposed by this Tribunal, the collateral disadvantage he has so far undergone must be taken into account.
The proposed suspension for a period of two years, along with the other components of the order, might on first glance appear too light for the conduct in question. But after full consideration of the evidence, we see no reason why this Tribunal should insist upon a longer period of cancellation or, prohibition from reapplication for registration than the two years proposed, subject to the important qualification that satisfactory undertakings given to the Board equivalent to the conditions proposed and consistent with the amendments suggested in these reasons.
The restriction on management and control of a pharmacy for five years is an important part of this. Without some such further limitation we think that suspension for two years would be too light.
Terms of eventual order proposed
For reasons stated in paragraphs [18] to [23] above, the Tribunal cannot impose the 6 conditions stated in paragraph 3 of the agreed order. Nor can it make orders in accordance with paragraphs 4 and 5 of the proposed order. These purport to direct the Board what it is to do about registering the proposed conditions. For the stated reasons, this tribunal cannot impose those conditions at all, and in any event it has no power under s 196 of the adopted National Law to direct the Board how it is to perform its functions of keeping registers in relation to registered health practitioners under ss 222 and 232 of the adopted National Law. The directions proposed by the parties seem to have been framed in reliance upon the Health Practitioners (Disciplinary Proceedings) Act 1999 which does not apply to the present proceedings.
Paragraph 6 of the proposed order is not covered by s 196 of the adopted National Law, and no submissions were made concerning jurisdiction to make such an order under the Health (Drugs and Poisons) Regulation 1996. In any event it is difficult to see how he could obtain an “endorsement for PSE” unless and until he obtains re-registration as a pharmacist. This condition will therefore be deleted.
It will therefore be appropriate to give Mr Arulogun the opportunity of providing an undertaking to the Board to perform the above tasks and to accept the stated burdens upon any future application for registration. If he provides evidence to this Tribunal to that effect, and the Board has no objection, it will be taken into account and the Tribunal will be minded to make an order terms set out below in the following paragraph.

Subject to the above comments, this Tribunal proposes to make an order along the following lines:
1. The tribunal finds that the respondent Stephen Arulogun has behaved in a way that constitutes professional misconduct.
2.Stephen Arulogun is disqualified from applying for registration as a pharmacist for a period of two years from the date of this decision.
3.Stephen Arulogun is ordered to pay the Board’s costs of and incidental to this matter to be agreed or assessed on the district court standard scale.
For the benefit of a costs assessor or other person associated with the calculation of the Board’s costs of these proceedings, it is noted (with the concurrence of the assessors who have assisted in this matter) that the facts were substantially agreed at an early stage, and that the four volumes of material provided to the Tribunal contain a considerable quantity of material that was unnecessary for the present determination.
The application at this stage will be adjourned until 17 January 2014, with liberty to the parties to advise the Tribunal in writing about the provision of undertakings to the Board, and of the Board’s response. As the order now proposed by this Tribunal differs from that originally proposed, and it would seem that the original submissions were based on some legal misconceptions, the parties will also be given the opportunity to make further submissions on the course here foreshadowed.
If satisfactory undertakings are not provided, it will be necessary for this Tribunal to reconsider the level of the sanction and to formulate an order consistent with the powers conferred by s 196 of the adopted National Law.