Pharmacy Board of Australia v Booy
[2011] QCAT 522
•31 October 2011
| CITATION: | Pharmacy Board of Australia v Booy [2011] QCAT 522 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Simon Andrew Booy (Respondent) |
| APPLICATION NUMBER: | OCR265-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: K Allen K Kensell G Lawrence |
| DELIVERED ON: | 31 October 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Booy’s registration is suspended for a period of three months. 2. That sanction is wholly suspended for a period of 12 months provided that Mr Booy does not face disciplinary action in the Tribunal during that period of 12 months. 3. Mr Booy must complete a course in ethical decision making within six months of the date of this order. 4. Mr Booy must nominate a course for the Board to approve and, as soon as practicable after completing the course, must provide the Board with documentary evidence of completion. 5. Mr Booy must participate in mentoring for 12 months from the date of this order. 6. Mr Booy must nominate a mentor for the Board to approve. The mentor must be older and have more experience in the practise of pharmacy than Mr Booy. 7. Mr Booy must meet with the mentor no less frequently than monthly for at least an hour. Mentoring should focus upon ethical decision making in a dispensing environment and strategies to resist pressure to dispense whether by patients, prescribing doctors or employers. 8. The mentor must provide a written report to the Board at the end of each quarter. 9. Mr Booy must bear any costs associated with mentoring, including the mentor’s costs of reporting to the Board. 10. The Board must file in the Tribunal one copy and give to Mr Booy one copy of a short form assessment of its costs of these proceedings assessed against the District Court scale on a party and party basis. Upon receipt of that assessment and any further submissions either party wishes to make, the Tribunal will make an order fixing the costs to be paid by Mr Booy to the Board. |
| CATCHWORDS: | DISCIPLINARY – Pharmacist – where junior pharmacist worked with minimal supervision – where pharmacist dispensed anabolic steroids in circumstances in which he knew he should not – where pharmacist discussed dispensing concerns with prescribing Doctor and employer – where pharmacist continued to dispense – where pharmacist did not contest proceedings Health (Drugs and Poisons) Regulation 1996, ss 171, 224(3)(c) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Booy graduated as a pharmacist in 2005 and was registered shortly after that. The Board brought these disciplinary proceedings against him following action by Queensland Health to suspend Mr Booy’s endorsement under the Health (Drugs and Poisons) Regulation 1996[1] to obtain, dispense, sell or possess restricted drugs containing the active ingredients Testosterone, Nandrolone and Mesterolone and anabolic steroids. The Board alleged that Mr Booy knew or should have known these drugs were open to abuse and that, the quantities and combinations dispensed were not for a therapeutic purpose.
[1] Health (Drugs and Poisons) Regulation 1996, ss 171, 224(3)(c).
Anabolic steroids build muscle bulk. Unless medically indicated, use for that purpose, for example by body builders is not a therapeutic purpose and falls outside the endorsement under the Drugs and Poisons Regulation.
Queensland Health, and then the Board, took action because Mr Booy dispensed these drugs to a customer in quantities well exceeding the usual dosage and in combinations not usually seen. Other allegations related to record keeping and a few occasions of self medication.
Mr Booy has not contested the proceedings, nor has he opposed most of the orders sought by the Board. He has cooperated in settling a statement of agreed facts. He accepts that he has engaged in unsatisfactory professional conduct in the following ways:
a)His conduct involved a lesser standard than might reasonably be expected of Mr Booy by the public of his professional peers; and
b)It demonstrated incompetence, lack of adequate knowledge, skill, judgment or care in the practice of his profession; and
c)He provided a person with health services of a kind that were excessive, unnecessary or not reasonably required for the person’s wellbeing.
Both parties have done what they could to facilitate an early and efficient conclusion to the proceedings. For the reasons that follow, the Tribunal is satisfied that there are grounds for taking disciplinary action and that the orders proposed by the Board, with minor refinements, are appropriate.
Dispensing conduct
The dispensing occurred between June 2008 and August 2009. Mr Booy, then a young pharmacist with only a couple of years’ experience, worked for a pharmacy at Mermaid Beach, located in a medical centre. He worked for approximately 48 hours a week over six days, and was the sole employee on site for most of that time. .
In that period, Mr Booy dispensed the following drugs to a customer:
a)168 Deca-Durabolin ampoules;
b)54 Primoteston Depo ampoules;
c)309 Sustanon ampoules; and
d)20 Reandron ampoules.
Mr Booy conceded those drugs had the potential to be misused and abused. He also conceded that he dispensed the restricted drugs in a volume and at a frequency that exceeded the terms of his endorsement as a pharmacist.
Pharmacists are required to practice pharmacy in accordance with the Professional Practice Standards of the Pharmaceutical Society of Australia.[2] Their primary concern must be the health and wellbeing of the consumer and the community.[3] They must promote the judicious, appropriate, safe and effective use of medicine and be aware of trends and patterns of use of commonly misused substances.[4] Pharmacists must also exercise professional judgment to prevent the supply of products likely to constitute an unacceptable hazard to health or the supply of unnecessary or excessive quantities of medicines and other products, particularly those with a potential for abuse or dependencies.[5]
[2] Version 3 as in force in 2006, is the relevant version of this standard.
[3] Standard 1, criterion 2 of the standards.
[4] Standard 1, criterion 5.
[5]Pharmaceutical Society of Australia Code of Professional Conduct[5] Principle 1 and Obligation 1.3.
[10] The issue was not only the quantities in which and frequency with which the steroids were dispensed, but also the combinations in which they were dispensed. Mr Booy conceded it was highly unlikely that three different anabolic steroids would ever be prescribed at the same time for a genuine medical condition. Mr Booy had sufficient knowledge and training as a pharmacist to understand this and to prompt him to refuse to dispense the drugs.
[11] The prescribing doctor, Dr Peter Grant, operated from the medical centre in which the pharmacy was located. Both Mr Booy and Mr Jattan, who owned the pharmacy, were concerned by the dispensing history for this patient and discussed this with Dr Grant. They recorded notes of their conversations with the doctor, who has certified their notes are accurate.
[12] Mr Jattan spoke with Dr Grant in August 2008 and told him that the patient was using more that what is normally prescribed and asked him to check the quantities he prescribed to him. A few days later Mr Booy spoke to Dr Grant, who assured him he would talk to the patient about the regularity of injections. Whilst the doctor was not happy about how often the patient was using both Sustanon and Deca-Durabolin, he did not impose any restrictions.
[13] In May the following year, Mr Jattan spoke to Dr Grant in person and showed him the patient’s dispensing history. Dr Grant said his patient was not selling the drugs but that he would tell him now to go somewhere else. Whether this meant to a different doctor or a different pharmacy is not evident. He told Mr Jattan that he would show the dispensing history to the patient and explain why he would not prescribe the drugs to him any longer.
[14] However, it seems that Dr Grant did continue to prescribe the medication. Mr Booy continued to dispense them until August 2009. Mr Booy did not receive any financial benefit in doing so. It seems he felt over-borne by the patient. He was reluctant to speak to Dr Grant again as he was well aware of their concern but apparently kept prescribing the drugs.
[15] This case has all the hallmarks of a junior pharmacist inadequately equipped with strategies to resist the pressure to dispense in circumstances that he knew were inappropriate. Mr Booy was aware the prescribing and use was unusual and took some steps, in concert with his employer, to try to address it.
[16] Unfortunately, those steps proved inadequate. The circumstances suggest Mr Booy had insufficient support within the pharmacy in refusing to dispense to this patient. Given Mr Jattan was actively aware of the issue, it is puzzling that he did not put a clear system in place for this patient.
[17] The Board submitted that, as a junior pharmacist, Mr Booy would know more about his obligations than at any time after graduation, presumably because he so recently underwent ethics training. The Tribunal rejects this submission. There is an important difference between learning ethical principles and applying them in the workplace.
[18] Although Mr Booy appears to be a very intelligent and accomplished man, he was a young professional at the time. Inexperienced practitioners lack the confidence and sophistication that comes with years of experience. He spent most of his working hours alone, without supervision or support from an experienced pharmacist. Real guidance from his superior in how to handle this particular patient may have assisted Mr Booy to fulfil his professional responsibilities.
[19] Whilst this does not relieve Mr Booy of responsibility of his own actions, it is a relevant factor the Tribunal must take into account in determining what sanction is appropriate. In the absence of evidence to the contrary, the Tribunal has taken the view that Mr Booy’s employer did not give him effective support in handling the patient.
Data entry
[20] Mr Booy failed to record accurately the name of the dispensing doctor. He admitted this was unsatisfactory but argued this was a minor matter. The Tribunal accepts this was sloppy practice rather than an intention to create false data. However, the issue of dirty data is a significant one for pharmacies. It seems this pharmacy did not have a system for regularly checking that information was entered correctly in the dispensing records. If it did, there would likely not have been so many errors over such a lengthy time. This is a systemic failure within the pharmacy, as much as it was unsatisfactory conduct by Mr Booy.
[21] The Tribunal notes Mr Booy’s complaint that, either in these proceedings or in responding to the action by Queensland Health, he was put to some considerable trouble to prove that there were prescriptions to match the dispensing history for the patient. Of course, had he correctly entered the data at the time he dispensed the drugs, he would not have been put to such trouble. It seems churlish and suggests a lack of insight that he would point the finger at others for a deficiency in data of his own making.
[22] Nevertheless, in the context of these proceedings this is a minor matter.
Self medication
[23] There is also Mr Booy’s self medication in April and September of 2007. Mr Booy supplied himself with restricted drugs, including Omepral and Somac, when they had not been prescribed to him. He recorded them in the pharmacy’s dispensing data at ‘owing’ prescriptions. This means a prescription will be provided after the medication has been dispensed.
[24] He gave a medical explanation for this, that the Board has not questioned, and subsequently obtained scripts. However, this was done more than 2 years after the event. This is an inappropriate practice. However, these are isolated incidents some years ago and the Board has not suggested that Mr Booy has made a practice of doing this.
Sanction
[25] Mr Booy is clearly a very intelligent young man. He has conceded his unsatisfactory practice although, perhaps a little argumentatively, he has asked the Tribunal to consider what he says is the unethical practice of others, particularly the lawyers for Queensland Health and the Board.
[26] It indicates his ignorance about the role the lawyers play in these proceedings. It is not necessary to go into the details, but it is appropriate that this Tribunal formally rejects Mr Booy’s submissions on this matter as ill informed and without foundation.
[27] The Tribunal is troubled that Mr Booy considers the behaviour of others has any bearing on what sanction should be imposed for his own conduct.
[28] Mr Booy continues to work as a pharmacist and there has been no further complaint against him. He is completing a Masters of Business Administration at Griffith University and is succeeding at the very highest level in that study. He says he has reviewed the Code of Professional Conduct. He is a member of the Australian College of Pharmacy, continuing his professional development with the college.
[29] Mr Booy dispensed anabolic steroids in circumstances in which he knew he should not. He tried to influence the doctor prescribing the drugs but failed to implement strategies to regulate his dispensing practice. At the time, he was a junior pharmacist who had a high level of responsibility and, it seems, he was not well equipped to discharge it.
[30] The orders proposed by the Board are appropriate in those circumstances. They impose a suspension from practice which is, itself, suspended for a period of twelve months. They require Mr Booy to undertake training in ethics and to undertaken mentoring. The Tribunal will make orders in the terms proposed with slight amendments to target the mentoring to the specific issue which, it seems, needs to be addressed: that is, implementing strategies to resist pressure to dispense in circumstances where it is not appropriate.
Costs
[31] The Board has sought recovery of its costs of $11,000. Mr Booy has provided some information about his current financial status. He suggested that he was not given the opportunity to resolve this any earlier and, if it had, the costs would have been reduced. This matter was dealt with in a timely way. The application was filed in December 2010 and a statement of agreed facts provided in July 2011. After that the matter proceeded as quickly as it could to an ‘on the papers’ hearing. The Tribunal is satisfied the Board has not acted unreasonably or delayed these proceedings in any way.
[32] In most cases, where the Board has established its’ case, it is appropriate that the Tribunal award costs in the Board’s favour. The Board has not provided the Tribunal with an estimate of costs. There have been earlier proceedings by Queensland Health and Mr Booy has questioned the costs. Upon the Board providing a short form assessment of costs assessed against the District Court scale on a party and party basis, the Tribunal will fix costs.
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