Pharmacy Board of Australia v Beissel
[2012] QCAT 688
•13 December 2012
| CITATION: | Pharmacy Board of Australia v Beissel [2012] QCAT 688 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Graham Beissel (Respondent) |
| APPLICATION NUMBER: | OCR256-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, A/Deputy President |
| DELIVERED ON: | 13 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Beissel must provide the Board with his signed and dated undertakings in the terms detailed in Annexure A within 14 days. 2. Upon the copy of the undertakings being filed in the Tribunal, the following orders will be made. (a) Mr Beissel is reprimanded. (b) Mr Beissel must not apply to the Chief Executive, Queensland Health, for reinstatement of his unrestricted endorsement for pseudoephedrine under sections 171 and 257 of the Health (Drugs and Poisons) Regulation 1996, for a period of twelve (12) months from the date of this order. (c) Mr Beissel must pay the Board’s reasonable and necessary costs of and incidental to the proceedings in the sum as agreed or assessed on the standard basis pursuant to the District Court of Queensland’s Scale of Fees (excluding any costs of the amended referrals and the expert report of Ms Woodhouse). 3. If Mr Beissel does not comply with order 1, the matter will be listed before the Tribunal for further hearing on sanction. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHRMACUETICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN A PROFESSIONAL RESPECT – where the Registrant failed to keep records of pseudoephedrine sales – whether the Registrant’s conduct amounted to professional misconduct or unprofessional conduct – costs – where consideration of what costs were “reasonable and necessary” Health (Drugs and Poisons) Regulation 1996, r 285A Adamson v Queensland Law Society Incorporated (1991) QR 498 |
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
Mr Beissel was first registered as a pharmacist with the Pharmacy Board of Tasmania in 1975. He was registered with the then Pharmacist Board of Queensland in February 2003.
He has owned and managed two Queensland rural pharmacies: the Barcaldine Pharmacy from July 2007 to December 2007, and the Taroom Pharmacy from July 2008 to the present.
This disciplinary referral arises as a consequence of Mr Biessel’s failure to comply with regulations relating to the dispensing of pseudoephedrine (‘PSE’).
PSE is a substance prone to misuse and abuse. It is used in the manufacture of methamphetamine; the drug also known as ‘speed’ or ‘ice’.
In 2006 PSE was rescheduled to a Schedule 3, pharmacist only poison under the Health (Drugs and Poisons) Regulation 1996 (‘the Regulation’) in order to prevent the diversion of PSE to the illicit drug market.
The Regulation required the pharmacist to keep records of the sale of PSE, which was to include the date, quantity and purchaser’s details. The record was to be maintained for 2 years.[1]
[1] Health (Drugs and Poisons) Regulation 1996, s 285A.
The parties have agreed on certain relevant facts and the appropriate sanction. However as a result of an amended referral, there is now a dispute about the disciplinary finding the Tribunal should make.
The Conduct
Queensland Health conducted an audit of the Barcaldine pharmacy in September 2009 and the Taroom Pharmacy in November 2009 as part of a state-wide audit to investigate compliance with the regulations for dispensing PSE.
The audit revealed that Mr Beissel had contravened s 285A of the Regulation in failing to retain records for the sale of all PSE.
Mr Beissel concedes that:
1.In relation to the Barcaldine pharmacy for the period 1 July 2007 to 10 December 2007:
(i)Approximately 579 items of PSE were obtained from wholesalers;
(ii)No records of sales of PSE were made in Project STOP; and,
(iii)No records of sales were made in the dispensing software.
2.In respect of the Taroom Pharmacy for the period 7 July 2008 until 19 November 2009:
(i)Approximately 766 of items of PSE were obtained from wholesalers;
(ii)94 items of PSE were dispensed;
(iii)64 items of PSE were held as stock on hand;
(iv)No records of sales of PSE were made in project stop; and
(v)Approximately 608 items of PSE were unaccounted for.
Mr Beissel concedes that by repeatedly failing to ensure all sales of PSE were recorded he has engaged in conduct in breach of the Regulation.
The history of the referral is relevant in considering the disciplinary finding the Tribunal should make.
The regulation of health professionals has been in transition from a state-based system governed by the Health Practitioners (Professional Standards) Act 1999 (‘the Professional Standards Act’) to a national scheme governed by the Health Practitioner Regulation National Law Act 2009 (‘the National Law’).
The Board originally referred the matter under the Professional Standards Act, alleging that Mr Beissel’s conduct amounted to unsatisfactory professional conduct in that it was:
1.Professional conduct that was of a lesser standard than that which might reasonably be expected of the Registrant by the public and the Registrant’s professional peers, and/or
2.Professional conduct that demonstrated incompetence and lack of adequate, knowledge, skill, judgment or care in the practice of the Registrant’s profession.[2]
[2] Health Practitioners (Professional Standards) Act 1999, s 124.
As noted by Mr Beissel in his submissions the referral did not allege ‘misconduct in a professional respect’, which was open to the Board.
The Board subsequently concluded that the proceedings had been referred under the incorrect legislation and filed an amended referral on 5 October 2012 referring the matter under the National Law.
The Professional Standards Act only continued to apply to those matters which were already being ‘dealt with’ under the Professional Standards Act before the National Law was introduced on 1 July 2010.[3]
[3] Health Practitioner National Law Act 2009, s 289.
Both parties accepted that the matter was not being dealt with under the Professional Standards Act prior to July 2010 and as such the National Law was the applicable law.
In the amended referral the Board alleged that the conduct constituted professional misconduct under the National Law. Mr Beissel admits a finding of unprofessional conduct under the National Law, but he denies his conduct constitutes professional misconduct.
Professional misconduct is defined in the National Law as including:
(a)Unprofessional conduct by a practitioner that amounts to conduct that is substantially below the standard reasonable expected of a registered health practitioner of an equivalent level of training or experience.[4]
[4]Health Practitioner National Law Act 2009, Schedule, s 5 definition of professional misconduct.
Unprofessional conduct under the National Law is conduct that is of a lesser standard than that which might reasonably be expected of the Registrant by the public and professional peers.[5]
[5]Health Practitioner National Law Act 2009, Schedule, s 5 definition of unprofessional conduct.
This definition of unprofessional conduct is equivalent to that of ground (a) of the definition of unsatisfactory professional conduct under the Professional Standards Act.[6]
[6]Health Practitioners (Professional Standards) Act 1999, Schedule, definition of unsatisfactory professional conduct.
Unsatisfactory professional conduct was the ground under which the matter was originally referred under the Professional Standards Act.
Mr Beissel correctly points out that the criteria which distinguishes unprofessional conduct from professional misconduct is whether the conduct:
1. fell below the standard reasonably expected of a national health practitioner by the public or their professional peers; or
2. fell substantially below the standard reasonably expected of a registered practitioner with an equivalent level of training or experience.
As has been commented in other cases[7], the fact that there is different wording in relation to the requisite standards against which the conduct is measured is not of consequence. It would be expected that the standard expected of a practitioner by the public and their peers[8] would be ascertained by reference to those in the profession with equivalent training and experience[9] and by the Rules, Codes and Regulation guidelines of the profession.
[7] Pharmacy Board of Australia v The Registrant [2012] QCAT 515.
[8]Health Practitioner National Law Act 2009, Schedule, s 5 definition of unprofessional conduct.
[9]Health Practitioner National Law Act 2009, Schedule, s 5 definition of professional misconduct.
The Board submits that because there are new definitions in the National Law there is no basis for applying the interpretation of the previous legislation in the present case.
The Tribunal does not accept that submission.
In circumstances where unsatisfactory professional conduct under the Professional Standards Act includes conduct defined in the same terms as unprofessional conduct under the National Law it is appropriate to have regard to previous decisions regarding interpretation of conduct that amounted to unsatisfactory conduct under the Professional Standards Act.
In relation to professional misconduct, as there was no definition of that term in the Professional Standards Act, the courts and tribunals have formulated the type of behaviour that would constitute professional misconduct.
There is no reason why, in considering what is meant by ‘substantially below the expected standard’, regard should not be had to previous decisions where consideration is given to what type of conduct constituted professional misconduct. This is particularly so where the legislature in defining professional misconduct as ‘substantially below’, appears to have adopted the test formulated in a previous decisions. In Adamson v Queensland Law Society Incorporated[10] it was held, in determining whether there had been misconduct in a professional respect, that:
…the test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of the profession of good repute and competency.[11]
[10] (1991) QR 498.
[11]Adamson v Queensland Law Society Incorporated (1991) QR 498, 507; applied in Medical Board of Queensland v Christopher John Alroe [2005] QHPT 004; Medical Radiation Technologists Board of Queensland v Hennig [2010] QCAT 609; Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264; Nursing and Midwifery Board of Australia v Farley [2011] QCAT 162; Nursing and Midwifery Board of Australia v Brocklehurst [2011] QCAT 71; Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423; Medical Board of Australia v Cooke [1992] 2 Qd R 608.
Mr Beissel refers the Tribunal to other decisions in other jurisdictions where the meaning of professional misconduct has been considered.
These authority’s refer to conduct which was:
1. More than negligence or incompetence.[12]
2. Behaviour which would reasonably be regarded as disgraceful and dishonourable by his professional brethren of good repute and competency.[13]
3. Lack of insight by the practitioner, placing commercial interests above patient/client interests and well being.[14]
[12] Pillai v Messiter (No 2) (1989) 16 NSW LR 197, 200.
[13] Allinson v General Council of Medical Educational Registration [1894] 1 QB 750.
[14]Legal Services Commissioner v Madden [2008] QCA 301; Health Care Complaints Commission v Tiong [2012] NSWMT 6.
Mr Beissel submits that none of these factors apply to his conduct in failing to comply with relatively new legislative requirements to record sales of PSE.
There was no deliberate or indifferent flaunting of professional responsibility, lack of concern of patient safety, lack of insight, serious incompetence or conduct that would reasonably be described as disgraceful or dishonourable.
The Tribunal accepts the Board’s submission that professional misconduct plainly includes unprofessional conduct of a certain type. However it must be, as the Tribunal has said in Pharmacy Board of Australia v Registrant[15], conduct that is more than just below the standard expected. It needs to be shown to be, to a high degree, below the standards expected of a registrant with equivalent training and experience.[16]
[15] [2012] QCAT 515.
[16] Pharmacy Board of Australia v The Registrant [2012] QCAT 515, [49].
Mr Beissel did not record sales of PSE as he was required to do. His response is that he was ignorant of the changes in legislation which required him to record all sales. His evidence was that a pharmacist was also always involved in the sales of medicine, that he labelled all medicine after counselling the patient, and that he only recorded sales through the computer if there was a concern that a potential customer may have been abusing the product. He said in single pharmacy towns such as Barcaldine and Taroom the possibility of abuse without an escalation in purchases was ‘near on impossible’.
Since the audit conducted by Queensland Health and becoming aware of the requirement to record sales, he is doing so.
Previous decisions of this Tribunal have considered similar conduct by pharmacists and whether conduct amounted to professional misconduct or unprofessional conduct.
In the decision of Pharmacy Board of Australia v Kinsey[17] Judge Kingham found that in failing to keep adequate records of the sale of PSE for a period of two years Mr Kinsey had engaged in unprofessional conduct, not professional misconduct.
[17] [2012] QCAT 359.
In the Pharmacy Board of Australia v The Registrant[18] the pharmacist had failed to keep adequate records of PSE sales and had facilitated the inappropriate dispensing of PSE, stocked excessive PSE and failed to comply with the industry quality and standard. The finding was one of unprofessional conduct not professional misconduct.
[18] [2012] QCAT 515.
In Pharmacy Board of Australia v Kent[19] the pharmacist was found to have engaged in inappropriate dispensing of steroids, non-compliance with regulatory requirements about pharmacy records. The Tribunal found that the pharmacist had engaged in unsatisfactory professional conduct under the Professional Standards Act on grounds that:
1. the conduct fell below the standard reasonably expected of the pharmacist by the public or his peers;
2. the conduct demonstrated incompetence and lack of adequate knowledge, skill, judgment or care;
3. the pharmacist provided a person with health services of a kind that were excessive, unnecessary or not reasonably required for a person’s wellbeing; and
4. the conduct was not found to be misconduct in a professional sense.
[19] [2012] QCAT 329.
The Tribunal does not consider Mr Beissel’s conduct amounts to professional misconduct.
Mr Beissel breached the regulations because of inadequate knowledge of recording requirements. The Tribunal finds that Mr Beissel’s conduct was below the standard expected but not substantially below the standard.
The parties have agreed on sanction.
The parties propose that Mr Beissel:
1. be reprimanded;
2. that he not seek unrestricted endorsement for the dispensing of PSE for 12 months;
3. that he pay the Board’s reasonable and necessary costs; and
4. that he provide an undertaking (see annexure A) to the Board that he:
a)will maintain membership of the Pharmaceutical Society and the Pharmacy Guild;
b)participate in a mentoring program for a period of 18 months;
c)undertake CPE, some requiring personal attendance at professional events.
In considering an appropriate sanction the Tribunal takes account of the following mitigating factors referred to the Board:
1. Mr Beissel has not previously come to the attention of the Board in his 36 years as a regional and rural pharmacist.
2. Since the events the subject of the referral he has undertaken more than required CPD.
3. He has been a Member of the Pharmacy Guild since 1976.
Aggravating factors to be taken into account include the fact that Mr Beissel as owner and manager of the pharmacy had a particular obligation to ensure that the pharmacy and its staff used practices to comply with the Regulation and the professional obligations.
The Board submits the Tribunal should not accept Mr Beissel’s assertion that he was not aware of the requirements to record sales and should have regard to this as an aggravating factor. I do not accept this on the evidence before the Tribunal.
From his initial response to Queensland Health his position has been that the failure to record resulted from ‘inadvertent and regrettable gap’ in his knowledge.
The Board suggests Mr Beissel’s admission that he was aware of the changes to the scheduling of PSE is inconsistent with his assertion that he was not aware of the recording requirements. I agree with Mr Beissel that this is inaccurate. He concedes he was aware of the changes in rescheduling of PSE, not the requirement to record the sales.
The lack of knowledge is however itself an aggravating factor and the sanction proposed addresses this factual issue with the provision of mentoring.
The sanction proposed is in line with that imposed in similar referrals.[20]
[20]Pharmacy Board of Australia v Kinsey [2012] QCAT 359; Pharmacy Board of Australia v Chung [2012] QCAT 483.
The Tribunal accepts that the sanction of a reprimand, the continued restricted endorsement of PSE and the terms of the undertaking offered is appropriate and meets the objectives of the legislation, namely the protection of the public in maintaining the standard of the profession.
Costs
There is some dispute between the parties as to the appropriate costs order.
The parties agreed that the order as to costs should be that the Registrant pay the Board’s ‘reasonable and necessary’ costs of and incidental to the proceedings.
The words ‘reasonable and necessary’ were apparently inserted as Mr Beissel maintains that he should not be responsible for certain items in the Board’s costs because they were not reasonable and necessary. He has asked the Tribunal to specifically excise those costs from the costs order.
The Board maintains that it is not for the Tribunal to determine what costs are reasonable or necessary as if that can’t be agreed then that will be a matter for the costs assessor.
The relevant legislative provision is s 195 of the National Law, which enables the Tribunal to make any order about costs it considers appropriate. The Tribunal can therefore make orders excluding certain costs if considered appropriate.
The costs sought by Mr Beissel to be excluded are:
1. The costs associated with the amended referrals.
2. The cost of expert referrals.
Costs of Amended Referrals
The Tribunal accepts that Mr Beissel should not be responsible for the costs associated with the amendment of the referral in circumstances where the amendments were necessary because the Board made reference to inaccurate legislative provisions.
The bulk of the amendments in the amending referrals filed in August and the subsequent amended referral filed in October fall into that category and as such the costs of the amended referrals are excluded.
Cost of Expert Referrals
Mr Beissel argues that the costs associated with the expert reports of Mr Simmonds and Ms Woodhouse are not reasonable and necessary and should be excised from the costs order.
His principle concern is that the reports dealt with the issue of whether his conduct amounted to breaches of professional codes and standards. Mr Beissel said it was not necessary to obtain this expert evidence when he had admitted that the failure to record sales was a breach of Regulation and unprofessional conduct.
The Board says that because Mr Beissel disputed in his original response the allegation that he was required to practice in accordance with the standards and code, there was some confusion about his position on the relevance of the codes and standard to the disciplinary proceedings.
The Tribunal accepts this argument to some degree. Some confusion arose because of the term ‘required’ to comply. Mr Beissel denied that at all material times he was ‘required’ to comply with the codes and standards. This was in fact correct because although the standards had been endorsed by the Board in 2004 they were not legislated for until 2007.
The Board obtained evidence from Mr Simmonds and Ms Woodhouse as to the role of codes and standards in determining whether grounds exist for taking disciplinary action. This may have been unnecessary if Mr Beissel had pleaded in his original response, as he did in his amended response that he disputed he was ‘required’ to practice in accordance with the standards but that:
he admitted that the Board endorsed these standards in 2004 and that the Board and Tribunal must have regard to the codes when making a decision about whether the Registrant had behaved in a way that constituted unsatisfactory conduct.
Mr Simmonds’ report deals with the role of the standards and the general regulatory framework.
In these circumstances, where the issue of applicability of the code and standards appeared to be an issue, the Tribunal accepts that the Simmonds’ report was reasonably necessary and does not exclude the costs of same from the costs order.
Ms Woodhouse’s report canvassed the development of the code and standards and their role in determining whether the conduct may or may not be unsatisfactory.
I do not consider that that report was necessary where the issue had already been dealt with by Mr Simmonds.
I do not consider the costs of Ms Woodhouse’s report to be reasonably necessary and as such the costs of same are excluded from the costs order.
Annexure A
Terms of Undertaking
1. I will maintain my membership of the Pharmaceutical Society of Australia and the Pharmacy Guild of Australia until retirement from practice.
2. I will participate in a mentoring program for a period of 18 months on the following basis:
a)The proposed mentor is …, a registered pharmacist of … years experience who is based at …, subject to he/she being approved by the Board.
b)I will meet with the mentor on a three[21] monthly basis.
[21] Amended by order of the Tribunal 21 December 2012.
c)The mentor meetings may occur by telephone provided the mentor and I meet in person on at least one occasion during the eighteen month period.
d)The mentoring relationship will be directed to:
I)Professional practice process;
II)Currency of knowledge and practise;
III)Clinical competence;
IV)Strategies for accessing the support in a remote location and professional obligations as a sole pharmacist in a locality.
e)I authorise the mentor to provide a written report for the Pharmacy Board after six months and again at the conclusion of the mentoring program, confirming that I fully participated in the mentoring program in accordance with my undertaking.
3. I undertake to complete at least 50 CPE units in the next twelve months, including at least two activities involving personal attendance by myself at a professional event attended generally by my peers.
4. I will bear any cost associated with compliance with these undertakings including the costs of the mentor.
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