Pharmacy Board of Australia v Brenton

[2011] QCAT 302

CITATION: Pharmacy Board of Australia v Brenton [2011] QCAT 302

PARTIES:	Pharmacy Board of Australia   (Applicant)
v
Jeffrey James Brenton (Respondent)

APPLICATION NUMBER:   OCR271-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President
Assisted by:
Ms H Hattingh
Ms K Walduck
Ms G Bolland

DELIVERED ON: 28 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The Tribunal approves the undertaking given by Mr Brenton to the Tribunal that he will not seek to renew his registration as a pharmacist.

2.    Mr Brenton must pay the Board’s costs of these proceedings as agreed or as fixed by the Tribunal assessed on the standard basis against the District Court scale.

CATCHWORDS:

DISCIPLINARY – Pharmacist – where the pharmacist dispensed restricted drugs in excessive quantities – whether advice by the prescribing doctor relieved him of his professional responsibilities – where pharmacist undertakes not to seek to be registered

COSTS – where pharmacist gave an undertaking and made admissions – whether each party should be their own costs – whether quantum of costs established

Health (Drugs and Poisons) Regulation 1996, s 171
Health Practitioners (Professional Standards) Act1999, ss 123, 124, 241, 255, 405L, 405P(1), 405P(5)
Health Practitioner National Law Act 2009; National Law (Queensland), s 289

Latoudis v Casey (1990) 170 CLR 534 applied
Medical Board of Western Australia v Roberman [2005] WASAT 118 cited
Podiatrists Board of Queensland v Hermann (No 2) [2010] QCAT 352 distinguished

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Act 2009.

REASONS FOR DECISION

1. Mr Brenton has been a pharmacist for some 50 years.  In that time he has managed 7 pharmacies, owned and operated 2 and dispensed for 2 hospitals.  He is now more than 70 years old.  When the matters that found these proceedings came to light, he intended to practice for only a few more years.  In November last year he retired and his registration lapsed.  He no longer holds the necessary endorsement to dispense restricted drugs.  His current intention is that he will not return to practise.  After such a lengthy career, apparently without any other transgression, it is regrettable that it has ended in this way.

2. The relevant period for these proceedings is between January 2006 and July 2008, when he was employed as a pharmacist in a regional centre.  He agrees that he dispensed restricted drugs[1] (steroids) to a customer at a frequency and in quantities that indicated they were not used for a therapeutic purpose.  The steroids he dispensed to the customer had the potential to be misused or abused.  Their retail value was approximately $30,000.  The dispensing occurred over a 2.5 year period.

   [1]Health (Drugs and Poisons) Regulation 1996, s 271; Standard for the Uniform Scheduling of Drugs and Poisons, sch 4.  The drugs involved were Andriol Testocaps, Deca-Durabolin, Primoteston Depot, Proviron, Reandron and Sustanon.

3. A pharmacist must obtain, possess, sell and dispense restricted drugs only to the extent necessary to practise pharmacy.[2]  The ethics code for the profession requires pharmacists to exercise professional judgment to prevent the supply of unnecessary or excessive quantities of medicines, particularly those which have the potential for abuse or dependency.[3]

   [2]Health (Drugs and Poisons) Regulation 1996, s 171.

   [3]Code of Professional Conduct (adopted by the Pharmaceutical Society of Australia in March 1998) at [11.1].

4. Given Mr Brenton’s lengthy service as a pharmacist, it is not surprising that his suspicions were aroused when the customer sought steroids on consecutive days or within a few days of the last transaction.  Mr Brenton understood the usual pattern for consumption of these drugs.  His failure rests in his response to his well founded concerns about the frequency of his customer’s presentation for more steroids.

5. It is to Mr Brenton’s credit that he inquired of the dispensing doctor, and on more than one occasion.  Presumably the Medical Board of Australia has been informed of the doctor’s part in these events and appropriate action has or is being taken against him.  Nevertheless, Mr Brenton cannot cast off his responsibility by relying on reassurances from the doctor that the patient knows what he is doing and can handle it.  His continued inquiry indicates his appreciation that the dispensing was unusual and most likely improper.

6. Mr Brenton says he made other calls to Queensland Health, but kept no records of the advice he received.  He also consulted the owner of the pharmacy about whether he should continue to dispense the drugs to the customer.  He says the owner told him it was my call whether or not the drugs were appropriate.  Ultimately, as far as Mr Brenton’s personal responsibility goes, the owner was correct.[4]  This situation called for Mr Brenton to exercise his professional judgment.  He faces these proceedings because he failed to act on his discomfort about dispensing in the pattern the drugs were prescribed.

   [4]This is not to say that the owner did not also bear responsibility for the dispensing, but that question is not before the Tribunal in these proceedings.

7. His conduct fell below the standard that might reasonably be expected of Mr Brenton by his peers and the public.  It demonstrates a lack of judgment in the practise of his profession.  He provided health services which were excessive, unnecessary or not reasonably required for the patient’s well being.  These findings establish that Mr Brenton engaged in unsatisfactory professional conduct.[5]

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

8. The Board has invited the Tribunal to approve an undertaking that Mr Brenton has offered to the Board, that he will not seek to renew his registration as a pharmacist.  This proceeding is captured by the transitional provisions of the Health Practitioners (Professional Standards) Act 1999 and the Health Practitioner National Law[6].  Their effect is that the proceedings are determined as if the former Act had not been amended by the National Law, but the decision is enforced under the National Law as if it were a decision made under that Act.

   [6]Health Practitioners (Professional Standards) Act 1999, ss 405L, 405P(1), 405P(5); Health Practitioner National Law (Qld) s 289.

9. Under the Health Practitioners (Professional Standards) Act 1999, the Tribunal had an express power to require a practitioner to give an undertaking to the Tribunal.[7]  Failure to comply with an undertaking then was a ground for disciplinary action.[8]  Under the National Law (Qld) the Tribunal does not have an express power to require an undertaking, nor is there a corresponding provision that breaching an undertaking constitutes a ground for disciplinary action.

   [7]            Health Practitioners (Professional Standards) Act 1999, s 241(2)(d).

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

10. However, the Board is required to enforce the decision of this Tribunal as if it were a decision under the National Law (Qld).[9]  Practically, the way that might be done is that the Board would reject an application made by Mr Brenton against his undertaking.

    [9]Health Practitioner Regulation National Law Act 2009; National Law (Qld), s 289(4).

11. Given Mr Brenton’s age, lapsed registration status and current intention not to return to practice, the Tribunal accepts his undertaking will achieve the objectives of these proceedings: to protect the public and to maintain professional standards and public confidence in the profession.[10]

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

12. The Board also seeks an order that Mr Brenton pay its costs fixed at $8,000.  The Tribunal may make any order about costs it considers appropriate for disciplinary proceedings.[11]  While the discretion is expressed in broad and general terms, it must be exercised judicially.[12]

    [11]          Health Practitioners (Professional Standards) Act 1999, s 255(1).

    [12]          Latoudis v Casey (1990) 170 CLR 534 at 557.

13. In bringing such proceedings, the Board is exercising a public interest function in regulating the profession.  If it succeeds in establishing disciplinary grounds exist, that is a strong basis for ordering costs in the Board’s favour.[13]

    [13]          Medical Board of Western Australia v Roberman [2005] WASAT 118 at [30].

14. There will be cases that justify a different order.  Mr Brenton has relied on the Tribunal’s decision that each party bear their own costs in another matter where the Tribunal accepted the practitioner’s undertaking: Podiatrists Board of Queensland v Hermann (No 2).[14]

    [14]          Podiatrists Board of Queensland v Hermann (No 2) [2010] QCAT 352.

15. That case is distinguishable on the facts.  The parties proposed the order by consent.  Further, the Tribunal was not asked to and did not make any determination of unsatisfactory professional conduct.  Rather, it adjourned the proceedings to allow the undertaking offered by the practitioner to be served before considering whether it was necessary to proceed further with the disciplinary matters.

16. Neither of these features is present in this case.  The appropriate order is that Mr Brenton should bear the Board’s costs of and incidental to the proceedings as agreed or as fixed by the Tribunal after they have been assessed on the standard basis against the District Court scale.

17. The figure nominated by the Board seems high for proceedings that concluded on the basis of admissions and without an oral hearing.  There is no material from the Board to justify the calculation.  Given that, the order will require payment of costs in the amount agreed or as fixed by the Tribunal upon assessment against the District Court scale.