Pharmacy Board of Australia v Beattie
[2012] QCAT 550
•6 November 2012
| CITATION: | Pharmacy Board of Australia v Beattie [2012] QCAT 550 |
| PARTIES: | Pharmacy Board of Australia |
| v | |
| Elizabeth Nita Beattie |
| APPLICATION NUMBER: | OCR297-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 24 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O'Callaghan, Acting Deputy President Assisted by: Karen Allen Graeme Lawrence Pamela Mathers |
| DELIVERED ON: | 6 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mrs Beattie is cautioned. 2. Each party must bear their own costs. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – PHARMACIST – where pharmacist failed to comply with recording sales of PSE – where pharmacist failed to keep records of the sale of PSE for 2 years – whether the Registrant’s conduct constitutes professional misconduct – where the Tribunal ordered each party bear their own costs Health (Drugs and Poisons) Regulation 1996, s 285A, Schedule 3 Briginshaw v Briginshaw [1938] 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Pharmacy Board of Australia represented by Mr Andrew Preston, instructed by DLA Piper |
| RESPONDENT: | Mrs Elizabeth Nita Beattie represented by Ms Stephanie Gallagher, instructed by Shand Taylor Lawyers |
REASONS FOR DECISION
Mrs Beattie registered as a pharmacist in 1971 and has since worked in Brisbane and various rural areas. In 1979 Mrs Beattie purchased Speirs Pharmacy in Longreach and relocated. She is currently the owner of Speirs Pharmacy Longreach, the Longreach Pharmacy and the Cloncurry Pharmacy. She manages Speirs Pharmacy Longreach and employs managers for the other two. All pharmacies are accredited. Up until these proceedings Mrs Beattie had never been the subject of a complaint or had disciplinary proceedings taken against her.
The Pharmacy Board of Australia has brought these disciplinary proceedings against Mrs Beattie for inappropriately dispensing pseudoephedrine (‘PSE’) products by failing to adequately make and maintain records in regards to the dispensing of PSE products.
The Conduct
On 14 July 2009 Queensland Health conducted an audit of Speirs Pharmacy Longreach (‘the Pharmacy’). The audit found that between 1 July 2007 and 14 July 2009 (‘the audit period’):
a.871 units of PSE were obtained by the Pharmacy;
b.The sales of 225 units of PSE were recorded in the Pharmacy’s dispensing software;
c.There were no records for 646 units of PSE.
PSE is a substance prone to misuse and abuse. It is used in the manufacture of methylamphetamine, the drug also known as ‘speed’ or ‘ice’.
In 2006 PSE was rescheduled to a Schedule 3, Pharmacists Only Poison under the Health (Drugs and Poisons) Regulation 1996. This was done to combat the diversion of PSE to the illicit drug market.
Under the Health (Drugs and Poisons) Regulation 1996 a pharmacist is required to keep records for the sale of Schedule 3 drugs. Section 285A during the audit period required the following:
285A Record of sale of S3 pseudoephedrine
(1) A person who sells S3 pseudoephedrine to someone (the purchaser) by retail must, at the time of the sale, make a record of each of the following particulars for the sale—
(a) the date of the sale;
(b) the brand name and quantity of S3 pseudoephedrine sold;
(c) the purchaser’s name and address;
(d) if the person asks the purchaser to give the person a document evidencing the purchaser’s identity—the type of document given.
Maximum penalty—20 penalty units.
(2) The record may be kept in the way the person considers appropriate, including, for example, in an electronic form.
(3) The person must keep the record for at least 2 years after the date of the sale.
Maximum penalty—20 penalty units.
It was accepted by the pharmaceutical industry during the audit period that records should be kept of the sales of PSE products[1] and practices should be implemented to combat the diversion of PSE.[2]
[1]Pharmaceutical Society of Australia Code of Professional Conduct, Standard 2; Practice Standards of the Pharmaceutical Society of Australia, Version 3, Standard 2, Criterion 7.
[2]Pharmaceutical Society of Australia Code of Practice – Pseudoephedrine, Obligation 8; Practice Standards of the Pharmaceutical Society of Australia, Version 3, Standard 1, Criterion 5 & Standard 5, Criterion 1.
The parties have produced a statement of agreed and disputed facts.
It is agreed that Mrs Beattie was required to record the sales of PSE products. Mrs Beattie has admitted that she was aware of her obligations to record the sale of PSE products having received notifications from Queensland Health and the Pharmacy Guild. She disputes the referral stating she took steps to meet her obligations by asking the shop assistants at the pharmacy to refer any requests for cold and flu tablets to herself and maintains she recorded sales of PSE products.
Issues in dispute
The issues in dispute are:
a.Did Mrs Beattie fail to make and maintain adequate records?
b.If Mrs Beattie failed to make or maintain adequate records, then the number of PSE products she failed to make or maintain records in regards to.
Did Mrs Beattie fail to make and maintain adequate records?
Mrs Beattie stated that she kept records of the sale of PSE products from 2006 to July 2009, in a word document saved on a laptop computer.
Mrs Beattie was not at the Pharmacy at the time of the audit. She was attending her mother’s funeral. She says that had she been there during the audit she would have been able to produce the records on the laptop.
Mrs Beattie states that in July 2009 the laptop crashed and in about December 2009 or January 2010 she discarded the laptop. She says that although she was aware Queensland Health employees had come to the Pharmacy and retrieved data from the dispensing computer, she wasn’t aware until 28 May 2010 the purpose of the visit. At that time Mrs Beattie replied to Queensland Health informing them that she kept the records on the laptop and that it had since crashed.
At the hearing the Board submitted that it was open to the Tribunal to conclude that Mrs Beattie had not kept such records as none could be produced.
Whether Mrs Beattie kept records of PSE sales on a laptop is a question of fact on which the Tribunal must make a finding. The requisite standard of proof is the Briginshaw test:[3]
“When the law requires the proof of any fact, the Tribunal must feel a natural persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality.”
[3]Briginshaw v Briginshaw [1938] 60 CLR 336, as cited in Fitzgerald v The Medical Board of Queensland [2010] QCAT 565 [17]; see also Medical Board of Queensland v Whittaker [2010] QCAT 312, [4]; Psychology Board of Australia v Dall [2011] QCAT 608, [34].
Mrs Beattie was a credible witness. She discussed matters openly and acknowledged her responsibilities and failings. Mrs Beattie through her dealings with Queensland Health, and now the Board, has been significantly consistent in her accounts and provided reasoned explanations for any departure from an earlier account: see the discussions at [33] and [41].
The Tribunal accepts Mrs Beattie’s account that as well as the dispensing computer records she kept records of PSE sales on her laptop computer in a word document.
The Board submitted that using the laptop was inadequate as:
a.Mrs Beattie had adequate systems in place in the pharmacy that it was not necessary to use the laptop.
b.Mrs Beattie failed to ensure the records were backed up.
c.The laptop was a second hand laptop.
The Pharmacy had electronic dispensing software and the point of sale and dispensing computers were integrated. Mrs Beattie says that she used the laptop instead of the dispensing computer to record sales when the dispensing software was not available or was being used for another patient’s script. The laptop was kept at the dispensing station.
Pharmacist Mr Brett Simmonds provided evidence on behalf of the Board. In regards to Mrs Beattie’s use of the laptop computer he stated that
“…while it does seem unorthodox to use a personal computer to record sales of PSE when you have access to dispensary computers, if back ups of the personal computer had been made and kept for the required two year period, then the requirements of the regulation would have been met.”[4]
[4] Report of Mr Brett Simmonds dated 12 July 2012.
Accordingly the Tribunal agrees that Mrs Beattie did not breach her obligations to keep records merely by using a laptop instead of the dispensing computer.
At the hearing the Board made much of the laptop being second hand. They consistently labelled it as such.
The laptop used by Mrs Beattie was a laptop given to her by her son, an engineer.
The Board’s expert, Mr Simmonds, at the hearing stated that a laptop, even a second hand one, would be adequate to record sales of PSE as long as the records were kept for the necessary 2 year period.
The Tribunal finds that the laptop being second hand has no bearing on whether Mrs Beattie adequately made and maintained records of the sale of PSE.
Mrs Beattie says she intended to keep the records for the 2 years required although she did not back up the laptop.
At the hearing Mrs Beattie admitted that the dispensing computer was backed up. She said she did this because when she had the dispensing computer installed in the Pharmacy she was told that she needed to put in a disk and back up the system. She admits that now in hindsight she can see this needed to also be done with the laptop, although at the time it didn’t occur to her to do so.
The Board submitted that Mrs Beattie’s belief that the laptop didn’t need to be backed up was not plausible as the computers were not such different species that a person knowing one needed to be backed up could not then conclude that it wasn’t necessary for the other to be backed up also.
The Tribunal accepts that Mrs Beattie was not aware of the need for her to back up the laptop computer. She backed up the dispensing computer because she was told to do so.
Although the Tribunal has accepted Mrs Beattie’s evidence that she recorded the sales of PSE she has not maintained these records. Mrs Beattie’s actions, in failing to back up the laptop and maintain the records for 2 years was a breach of the regulation but was not a deliberate flouting of her professional obligations. It was borne out of a lack of awareness in regards to the laptop.
The number of PSE sales not recorded
Mrs Beattie submits that the number of stock the audit found to not be recorded (646 units) is incorrect as the audit did not account for stock on hand, out of date stock or erroneously invoiced stock. The Director of the Drugs and Poisons Policy & Regulation Unit, Mr Christopher Healey, agreed that it appeared from the records of the audit that this had not been taken into account.[5] The Board concedes that some allowance should be made to take account of this.
[5] Affidavit of Mr Christopher John Healey dated 7 August 2012, paragraph [28].
Mrs Beattie has no records of the amount of stock on hand, out of date stock and erroneously invoiced stock. She does provide the following estimates of stock:
a.300 units of stock on hand;
b.100-150 units of out of date stock;
c.200 units were sold and recorded on the laptop.
The Board submits that it is reasonable to expect that records would have been made at the material time and that Mrs Beattie’s estimates should be treated with caution as:
a.The final estimate on out of date stock differed to her initial estimate; and
b.The final estimates did not contain any erroneously invoiced stock which she had claimed was accounted for in the audit.
Mr Simmonds provided evidence on behalf of the Board that the amount of stock on hand and out of date stock estimated was high.
In regards to out of date stock, Mrs Beattie gave evidence that in making her first estimate of 30 to 50 packets of PSE being out of date stock she failed to account for the Pharmacy transitioning from products containing PSE to those with phenylephrine. Mrs Beattie submitted at the hearing that there was more PSE stock going out of date as she was now ordering phenylephrine products. This is consistent with the Pharmaceutical Society of Australia’s Code of Practice – Pseudoephedrine which stated that in 2006 many products were being reformulated so that PSE was replaced with phenylephrine to decrease the availability of PSE.[6]
[6]Pharmaceutical Society of Australia Code of Practice – Pseudoephedrine’, Pharmaceutical Society of Australia (November 2006).
Mrs Beattie states that at the time there were no guidelines for the disposal of out of date stock. Her practice was to keep a monetary value of the out of date stock for tax purposes and dispose of the stock in Removal of Unwanted Medicines (RUM) bins.
In regards to the stock on hand Mrs Beattie says that there would have been considerable stock on hand at the time of the audit as it was winter.[7]
[7] Affidavit of Mrs Elizabeth Nita Beattie filed 27 June 2012, paragraph [5].
In his evidence Mr Simmonds said that in his experience in 2009 pharmacies were holding less and Mrs Beattie’s account of stock on hand is high but a higher stock holding could be justified due to the location of the pharmacy and possible delivery problems. He concluded that a stock holding of 70-100 PSE units would be more reasonable.
Mr Simmonds accepted that stock control may be more difficult in Longreach then in metropolitan areas due to the possibility of delayed deliveries. He also accepted that holding higher stock levels could contribute to higher out of date stock. He believed it possible but unlikely that the amount of stock estimated by Mrs Beattie as going out of date was accurate.
Mr Simmonds provided this evidence based on his experience in the profession. Mr Simmonds has over 30 years experience. He has worked at various pharmacies in the Brisbane area and since 2007 has worked as a locum. At the hearing he stated that his experience of rural practice was in more recent years working as a locum in Esk, Laidley and Gatton. These areas are not as remote as Longreach and although he has considered some issues faced by such a remote pharmacy it cannot be said that he has the experience to provide a completely informed opinion on the practice in remote rural pharmacies.
The Tribunal accepts the estimates provided by Mrs Beattie. As previously stated, Mrs Beattie presented as a credible witness and although Mr Simmonds’ expert evidence is limited by his knowledge of rural practice he also acknowledged that Mrs Beattie’s estimates of out of date stock were possible and higher stock holdings could be justified.
As to the Board’s submissions regarding Mrs Beattie’s failure to account for erroneously invoiced stock, Mrs Beattie first raised the issue of erroneously invoiced stock in her letter of response to Queensland Health’s notice of proposed action almost a year after the audit was conducted. The issue was not raised again and no submissions were made in relation to this issue.
The slight inconsistencies in Mrs Beattie’s accounts demonstrate the difficulty faced in the proceedings due to a lack of records and reliance on personal accounts. In her affidavit Mrs Beattie admits she has had difficulty giving the estimates due to the passage of time.[8] The Tribunal has taken account of this in considering Mrs Beattie’s evidence. Although Mrs Beattie may have trouble recalling the exact number on hand she will undoubtedly, having managed the pharmacy for over 30 years, be in the best position to give an accurate account of stock, knowing the client base, reliability and frequency of supply and practice of the pharmacy. Despite some inconsistencies the Tribunal is satisfied with Mrs Beattie’s more recent account having been allowed some time to properly consider the event.
[8] Affidavit of Mrs Elizabeth Nita Beattie filed 27 June 2012, paragraph [2].
Sanction
The Board submits a finding of professional misconduct is warranted.
Professional misconduct under the National Law is defined as –
Unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience.
The Board submits, and the Tribunal accepts, that a finding of misconduct involves two findings:
a.Firstly, that the conduct was unprofessional conduct.
b.Secondly, that the conduct was substantially below the standard reasonably expected of a registered health practitioner with equivalent training and experience.
The Board submits that Mrs Beattie’s conduct was of a lesser standard than that which is expected of her by the public and her peers, and satisfies the first part to a finding of misconduct. In support of this they submit Mr Simmonds’ finding that:
“A reasonable pharmacist would consider Mrs Beattie’s failure to ensure all sales of PSE were recorded and kept as required by section 285A of the Regulation as conduct that is substantially below the standard reasonably expected of a Pharmacists”
On this evidence the Board further submits that Mrs Beattie’s conduct is substantially below what is expected of health practitioner with equivalent training or experience – and in doing so her conduct satisfies the second part for a finding of misconduct.
The issues with the evidence of Mr Simmonds have already been raised at paragraph [38]. The Tribunal has also accepted the account of Mrs Beattie that she kept records on a laptop. In any event she has failed to comply with s 285A by not keeping the records for 2 years.
The Tribunal finds that Mrs Beattie’s conduct is of a lesser standard than that which might reasonably be expected of her by the public and her professional peers as although she made records she failed to keep them. These records are more than just mere business records.[9] The maintenance of records is integral to pharmacists meeting their obligations to combat the diversion of PSE to the illicit drug market.
[9] Pharmacy Board of Australia v Kinsey [2012] QCAT 359.
The question then is – is Mrs Beattie’s conduct substantially below that which is reasonably expected of a health practitioner of equivalent training or experience?
As found in Pharmacy Board of Australia v The Registrant[10] although the standard by which unprofessional conduct and professional misconduct are measured under the National Law differ in wording, this is inconsequential. The standards of what is expected of a registrant by the public and their peers is determined by the codes, guidelines, position statements and other documents of the profession which reflect the standards which are accepted by the profession as being the standards which are good for the reputation of the profession.[11]
[10] [2012] QCAT 515.
[11]Psychologists Board of Queensland v Robinson [2004] QCA 405, [24], as cited in Pharmacy Board of Australia v the Registrant [2012] QCAT 359, [44].
In considering whether conduct is professional misconduct the Tribunal must consider whether the conduct goes beyond being less than the standard expected so that it is seen as substantially below the standard.
In Pharmacy Board of Australia v The Registrant it was found that for a finding of misconduct it must be shown that the registrant’s conduct was, to a high degree, below the standards expected of the registrant.
The Board submits that the Tribunal should have regard to the following aggravating factors:
a.Mrs Beattie has acknowledged that she was aware of her obligations in regards to recording the sale of PSE products.
b.Mrs Beattie’s practice of keeping two separate sets of records – one on the dispensing computer and one on the laptop – one of which could only be accessed by her, was not in line with dispensing best practice.
c.Mrs Beattie made no attempt to recover the data, although Mrs Beattie says she would have if she had known of the reasons for the audit conducted by Queensland Health.
d.Due to the lack of records it is not able to be ascertained whether Mrs Beattie dispensed PSE appropriately.
e.Mrs Beattie was owner and manager of the pharmacy and was responsible for ensuring the pharmacy and its employees complied with their professional obligations.
f.The diversion of PSE is well known and documented as well as pharmacists' obligations in regards to this issue.
The Board also accepts the following mitigating factors:
a.Mrs Beattie has not come to the attention of the Board prior to these proceedings or since.
b.Mrs Beattie proactively continued her professional education above the minimum requirements of her Continuing Professional Development Scheme to alleviate the professional isolation that arises from her geographical isolation.
c.Mrs Beattie has maintained accreditation of all her pharmacies since the establishment of accreditation of pharmacies.
d.Mrs Beattie has given evidence that she has changed her dispensing practices – she now sells products containing phenylephrine in preference to PSE products, records sales in Project Stop, has implemented policies for the sale of PSE and is complying with the terms on her approval to deal with PSE.
e.The character references provided on her behalf describe her as an honest, upstanding and law-abiding citizen, who is held in the highest esteem as a dedicated professional who has always taken the application of the highest ethical standards to her profession very seriously. Of note is that these references do not address the conduct currently in issue.
f.Mrs Beattie has stated she values the profession highly and is dedicated to rural pharmacy and providing the best possible service to those in rural areas.
g.Mrs Beattie understands her professional obligations and keeps herself informed by reading publications of the profession and completing the accreditation process.
The Tribunal accepts that factors are relevant to the consideration of sanction.
The Tribunal must consider each case afresh, having regard to all the circumstances. It is relevant to also consider previous decisions, particularly to promote consistency in decision making within the national scheme.[12]
[12]Health Practitioner Regulation National Law Act 2009, s 3(3); Queensland Civil and Administrative Tribunal Act 2009, ss 3(c), 4(d).
In Pharmacy Board of Australia v Kinsey[13] Mr Kinsey had failed to record the sale of 1,232 units of PSE and had kept inadequate records for a further 236 units of PSE over a 2 year period. In comparison Mrs Beattie has not maintained the records of the sale of approximately 200 units of PSE.
[13] [2012] QCAT 359.
In Kinsey the Board referred disciplinary proceedings to the Tribunal on the basis that the Board reasonably believed Mr Kinsey’s failure to keep records amounted to professional misconduct. The Board argued that his conduct fell substantially below because the records were not mere business records but are an integral part of the system of regulation of PSE. The Tribunal found that Mr Kinsey’s breach of his obligations was due to his passive approach to his professional education and professional responsibilities, but while reprehensible did not amount to professional misconduct but rather, unprofessional conduct. Mrs Beattie’s conduct falls well short of that observed in Kinsey and further to that she was aware of her professional obligations and attempted to meet them.
The Tribunal finds that Mrs Beattie’s conduct does not fall substantially below the standard expected by a pharmacist with equivalent training and experience and subsequently does not amount to misconduct.
The purpose of sanction is not to punish but to maintain professional standards and confidence in the profession and to protect the public.[14]
[14] Medical Board of Australia v Dolar [2012] QCAT 271, [30].
In deciding on sanction the Tribunal considered the following:
a.In Kinsey 1,232 units of PSE were not recorded over a 2 year period and the records for 236 units were inadequate – a finding of unprofessional conduct was made and a reprimand and undertakings requiring further education, mentoring and membership to professional boards were imposed.
b.In Pharmacy Board of Australia v Chung[15] approximately 1,360 units of PSE were not recorded over a 20 month period and the Registrant dispensed medication inappropriately to two customers – a finding of unsatisfactory professional conduct was made. The conduct was considered to be of a lesser standard than that which might reasonably be expected of a registrant by the public and their peers and it was conduct that demonstrated incompetence or lack of adequate knowledge, skill, judgement or care, in the practice of the profession, under the Health Practitioners (Professional Standards) Act 1999. A reprimand and conditions requiring further education, mentoring and membership to professional boards were imposed.
c.In Pharmacy Board of Australia v The Registrant 4,352 units of PSE were unaccounted for in records kept over a period of approximately 2 years and 9 months. The Registrant had also facilitated the inappropriate dispensing of PSE, stocked excessive PSE and failed to comply with the industry quality standard. The Tribunal concluded that the Registrant’s conduct as a whole amounted to unprofessional conduct and the Tribunal accepted an undertaking from the Registrant not to reapply for registration in any jurisdiction.
[15] [2012] QCAT 483.
The Board has proposed that an appropriate sanction is a period of suspension for 3 months, which is then wholly suspended for 12 months and conditions requiring mentoring, further education, maintenance of membership with professional bodies and demonstrating accreditation of the pharmacy.
Mrs Beattie submits that the appropriate sanction is a caution.
The Tribunal having regard to the previous cases and the circumstances of this case consider that a caution is an appropriate sanction. For a person such as Mrs Beattie who takes her professional obligations seriously the publication of this decision will be a significant penalty, it will also ensure other practitioners do not engage in the same conduct.
The Tribunal accepts Mrs Beattie’s submission that there is no real risk of her reoffending. Mrs Beattie from all accounts holds her profession in high regard and so too her obligations. She has made significant changes to her practice already to ensure all her pharmacies and their employees meet their professional obligations. The Tribunal is satisfied that it is not necessary to impose the conditions proposed by the Board.
Costs
In most cases where the Board establishes its case it is appropriate for the Tribunal to award costs in the Board’s favour.[16]
[16] Pharmacy Board of Australia v Booy [2011] QCAT 522, [31].
Mrs Beattie has submitted that the Board should be ordered to pay her costs as the application is one that the Board should not have brought to the Tribunal but rather referred to a performance and professional standards panel.
In Medical Board of Australia v Sykes[17] Judge Kingham found that the matter in that case could have been dealt with by a panel of the Board. The registrant’s conduct was found to amount to unprofessional conduct and a reprimand was imposed. Judge Kingham ordered that each party bear their own costs as the path taken by the Board was costly and the registrant had no control over the matter being referred to the Tribunal and had co-operated fully.
[17] [2012] QCAT 293.
It appears in this case, as happened in Sykes, the Board may have referred the matter under a mistake about what law applied. Although Mrs Beattie did not co-operate by admitting the conduct as the registrant did in Sykes she was quite right to maintain her position. The Tribunal has concluded that her conduct was well short of professional misconduct.
Had the Board established that Mrs Beattie had not made and kept records of the full 646 units, rather then just not maintained the records, the number of PSE units involved was still far less than the amounts observed in Kinsey and Chung both of which did not involve a finding of professional misconduct or misconduct in a professional respect. The Tribunal realises that the referral in this matter was made before those decisions were published and it is due to this consideration that the Tribunal does not award costs in favour of Mrs Beattie.
This matter would have been more appropriately dealt with by a panel of the Board, accordingly the Tribunal orders that each party bear their own costs.
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