Pharmacy Board of Australia v Chan
[2013] QCAT 255
•5 March 2013
| CITATION: | Pharmacy Board of Australia v Chan [2013] QCAT 255 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Paul Chan (Respondent) |
| APPLICATION NUMBER: | OCR005-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by |
| DELIVERED ON: | 5 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Paul Chan's registration be suspended for a period of 6 months, to be wholly suspended for an operational period of 12 months during which time Mr Chan must not engage in any conduct in respect of which he is liable to disciplinary action by the Board or the Tribunal. 2. The following conditions be imposed on Mr Chan's registration: a. Mr Chan must complete a tertiary module on ethical decision making within 12 months of the date of the Tribunal's decision; b. For the purpose of condition (a) above, Mr Chan is to nominate a course for the approval of the Board; c. Mr Chan is to submit documentary evidence to the Board upon completion of the course; d. Mr Chan must participate in a mentoring program for 6 months which includes the following elements: i. The Mentor is to be a senior registered pharmacist approved by the Board; ii. Mr Chan must meet the Mentor on a monthly basis for no less than 2 hours; iii. The mentoring relationship will be directed to professional practice processes, currency of knowledge and practice, clinical competence and professional obligations; iv. Mr Chan will authorise the Mentor to provide a report in writing to the Board at the end of each quarter and the end of the period of the mentoring; e. Mr Chan is to nominate a Mentor for the approval of the Board within 2 months of the date of the Tribunal's decision; f. Mr Chan must bear the costs incurred to comply with these conditions; g. Mr Chan must not be the preceptor of any intern pharmacist during the operational period of the suspended suspension. 3. The review period of the conditions imposed on the Mr Chan's registration is 12 months from the date of the Tribunal's decision. 4. Mr Chan not be permitted to apply for reinstatement of his unrestricted endorsement to deal with PSE until he has complied with conditions (a) and (d). 5. Mr Chan pay the Board's costs of and incidental to these proceedings fixed in the sum of $12,000. 6. Until further order of the Tribunal the publication of any information identifying the persons referred to in the decision as KN, KL, BD and LB is prohibited. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the Registrant inappropriately dispensed pseudoephedrine – where the Board alleged unprofessional conduct – where the Board alleged professional misconduct – where the Registrant admitted professional misconduct –whether the Tribunal should find the conduct amounted to professional misconduct PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the parties made joint submissions on sanction – whether the sanction was appropriate PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the Board provided details of sales – where persons named did not participate in the proceedings – whether the Tribunal should make a non-publication order Queensland Civil and Administrative Tribunal Act 2009, ss 32, 66 Medical Board of Australia v Van Opdenbosch [2012] QCAT 703 |
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
On 9 January 2012 the Pharmacy Board of Australia, having formed the belief that the Registrant, Mr Paul Chan, had behaved in a way which constituted professional misconduct, referred the matter to the Tribunal.[1]
[1]Section 193(1)(a)(i) of the Health Practitioner Regulation National Law (Queensland) (the “National Law”).
The Board alleges that Mr Chan has behaved in a way that constitutes professional misconduct because he has engaged in more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[2]
[2]See paragraph (b) of the definition of “professional misconduct” in the National Law.
Further, the Board alleges that Mr Chan has engaged in unprofessional conduct in that he has engaged in professional conduct that is of a lesser standard than that which might reasonably be expected of him by the public and his professional peers in that he has provided persons with health services of a kind that are excessive, unnecessary or not reasonably required for the persons wellbeing.[3]
[3]See the definition of unprofessional conduct in s 5 the National Law, particularly subparagraph (d). In its referral the Board, incorrectly, pleaded the provision of excessive health services as an alternative to professional conduct of a lesser than reasonably expected standard. Under the National Law the provision of excessive health services is but one way in which professional conduct of a lesser than reasonably expected standard may be demonstrated.
The parties have filed a Statement of Agreed Facts and Joint Submissions on Sanction.
Mr Chan was first registered as a pharmacist on 4 February 1999. He has held registration continuously since that date. He commenced work at the Terry White Chemists Valley Metro Pharmacy in Fortitude Valley (the “pharmacy”) in May 2004, initially on a part-time basis and later on a full-time basis.[4]
[4]Although those facts, recited at [4] of Attachment ‘B’ to Mr Chan’s Response filed 16 March 2012, do not form part of the Statement of Agreed Facts, they seem uncontroversial.
On 22 October 2009 and 25 February 2010, Queensland Health’s Drugs Poisons Policy and Regulation Unit conducted an audit of the pharmacy for the period from 1 July 2007 to 25 February 2010 (the “audit period”). During the audit period, Mr Chan held unconditional registration as a pharmacist and held an endorsement by operation of ss 171 and 257 of the Health (Drugs and Poisons) Regulation 1996 (the “Regulation”) to obtain, dispense, sell, possess or otherwise deal with any scheduled drugs and poisons containing the active ingredient pseudoephedrine (“PSE”) to the extent necessary to practice pharmacy.
During the audit period, Mr Chan held a 10% interest in the pharmacy. He was also its manager and was employed throughout that period on a full-time basis. He was also, for the period between late February 2008 and 22 January 2009 the approved preceptor of a pharmacy intern employed at the pharmacy.
The audit conducted by Queensland Health revealed that sales of PSE at the pharmacy were more than double the Queensland average for the period 1 January 2008 to 31 December 2009. It also revealed that 13 customers had obtained unusually high volumes of PSE between 1 July 2007 and 22 October 2009. Of the sales to those 13 customers, Mr Chan was responsible for 50.2% of the total PSE dispensing and the intern was responsible for 26.2%. The full particulars of the dispensing to those 13 customers was set out in the Statement of Agreed Facts. The following was recorded as examples of PSE obtained by certain customers;
KN
19.1The Pharmacy sold 186 PSE items to KN over a period of 432 days within the audit period;
19.2On 23 occasions during the audit period, KN obtained multiple (up to 10) packets of PSE from the Pharmacy in one transaction;
19.3The Registrant, or a pharmacist for which the Registrant was responsible, could not have reasonably established that KN had a therapeutic need for PSE;
19.4The Registrant, or a pharmacist for which the Registrant was responsible, dispensed or sold PSE beyond the extent necessary to practise pharmacy.
KL
19.5The Pharmacy sold 102 PSE items to KL over a period of 763 days within the audit period;
19.6On 22 occasions during the audit period, KL obtained multiple (up to 10) packets of PSE from the Pharmacy in one transaction;
19.7On six dates during the audit period, KL obtained multiple (up to 10) packets of PSE from the Pharmacy in one transaction;
19.8The Registrant, or a pharmacist for which the Registrant was responsible, could not have reasonably established that KL had a therapeutic need for PSE;
19.9The Registrant, or a pharmacist for which the Registrant was responsible, dispensed or sold PSE beyond the extent necessary to practise pharmacy.
BD
19.10The Pharmacy dispensed 20 PSE items to BD over a period of 28 days within the audit period;
19.11On 28 October 2008, BD obtained 10 packets of PSE from the Pharmacy in one transaction;
19.12On 24 November 2008, BD obtained 10 packets of PSE from the Pharmacy in one transaction;
19.13The Registrant, or a pharmacist for which the Registrant was responsible, could not have reasonably established that BD had a therapeutic need for PSE;
19.14The Registrant, or a pharmacist for which the Registrant was responsible, dispensed or sold PSE beyond the extent necessary to practise pharmacy.
LB
19.15The Pharmacy sold 25 PSE items to LB over a period of 55 days within the audit period;
19.16On seven occasions during the audit period, LB obtained multiple (up to 10) packets of PSE from the Pharmacy in one transaction;
19.17On 7 September 2009, LB obtained 20 packets of PSE from the Pharmacy in two separate transactions of 10 packets each;
19.18On 31 December 2009, the Registrant recorded a 'safety sale' of PSE to LB on Project STOP in circumstances where:
a.He had dispensed PSE to LB on 22 December 2009;
b.Project STOP recorded denials being recorded on Project STOP from:
1.two pharmacies on 23 December 2009;
2.one pharmacy on 24 December 2009;
3.three pharmacies on 28 December 2009; and
4.two pharmacies on 30 December 2009.
19.19The Registrant, or a pharmacist for which the Registrant was responsible, could not have reasonably established that LB had a therapeutic need for PSE.[5]
[5] See the Agreed Statement of Facts filed 31 August 2012, [28].
The material reveals that on a large number of occasions various of those customers obtained multiple packets of PSE, ranging in number from 3 to 10 packets at a time. Further, the material reveals that on 25 occasions various of those customers obtained packets of PSE in separate transactions on the same day.
In his response, Mr Chan accepts that he made PSE sales at a volume and at a frequency which were beyond the extent necessary to practice pharmacy. Mr Chan acknowledges that such sales were in breach of s 27 of the Regulation which prohibits the sale by a pharmacist of PSE unless he or she is reasonably satisfied the purchaser has a therapeutic need for the PSE.[6]
[6]The Regulation, s 277(1)(a)(i). See [14] of Annexure ‘B’ to the Response filed 16 March 2012.
The failure by a pharmacist to sell PSE in accordance with the limits established by legislation is a very serious matter. PSE is a substance prone to misuse and abuse. It is used in the manufacture of methamphetamine. For this reason, it was, in 2006, rescheduled to be a Schedule 3, pharmacists only poison under the Regulation.
Professional obligations were also imposed upon Mr Chan as a pharmacist otherwise than by legislation. He was required to practice pharmacy in accordance with the Pharmaceutical Society of Australia’s Code of Professional Conduct which included, as Principle 1, that the primary concern of a pharmacist must be the health and wellbeing of both clients and the community. An obligation is imposed upon a pharmacist to act at all times in a manner which promotes and safeguards the interests and welfare of clients in the community.[7]
[7]Pharmaceutical Society of Australia, Code of Professional Conduct, Principle 1, Obligation 1.1.
A pharmacist is also obliged to exercise professional judgement to prevent the supply of unnecessary and/or excessive quantities of medicine or other products, particularly those which have a potential for abuse or dependency.[8] Quite clearly, products which contain PSE fall within that category.
[8]Pharmaceutical Society of Australia, Code of Professional Conduct, Principle 1, Obligation 1.3.
In November 2006, shortly after the rescheduling of PSE as a Schedule 3, pharmacist only poison, the Pharmaceutical Society of Australia issued a Code of Practice specifically related to PSE. That Code of Practice observes, by way of background, that for some time PSE had been targeted for non-therapeutic purposes and that it was being used in the manufacture of methamphetamines for the illicit drug market. It referred to reports which confirmed that most of the methamphetamine then available on Australia’s illegal drug market was produced from pseudoephedrine-containing medicines diverted from community pharmacies.
That Code of Practice imposed an obligation on pharmacists to be satisfied that a genuine therapeutic need existed. It explained that this meant that prior to supplying products containing PSE the pharmacist should satisfy himself or herself that a clinical condition existed which would benefit from treatment with a pseudoephedrine-containing product.[9] The Code of Practice also provided that the quantity of PSE products supplied should be consistent with the level of therapeutic use that might reasonably be expected for that condition. It stated that it was unlikely that supply of multiple packets on any single occasion would be necessary or justified given the self limiting nature of the conditions for which PSE is generally used.[10]
[9]Pharmaceutical Society of Australia, Code of Practice – Pseudoephedrine, November 2006, Obligation 5.
[10]Pharmaceutical Society of Australia, Code of Practice – Pseudoephedrine, November 2006, Obligation 6.
The parties agree that there are a number of mitigating circumstances which the Tribunal ought take into account in considering any sanction to be imposed upon Mr Chan. Those mitigating circumstances include that Mr Chan did not come to the attention of the Board at any time prior to or since the conduct the subject of the referral. Protocols were introduced at the pharmacy in December 2010 and PSE sales are no longer made nor permitted at the pharmacy. As a result of his actions, Mr Chan has been removed as the manager of the pharmacy and the pharmacy has obtained accreditation with the Pharmacy Guild Quality Care Pharmacy Program for the period from 24 June 2012 until 23 June 2014.
Most importantly for the purposes of these proceedings, Mr Chan has recognised mistakes which he has made; is genuinely remorseful; and has demonstrated real insight regarding the serious nature of his conduct. He has cooperated fully with the Board during the proceedings.
Further to those mitigating factors identified and agreed upon by the parties in their joint submissions, it is also evident from the material before the Tribunal that Mr Chan, at least in some instances, did take measures to satisfy himself of the therapeutic need for the supply of PSE to particular customers. For example, in relation to the customer KN, Mr Chan questioned him on several occasions as to his use of PSE. KN had presented suffering from chronic sinus and described symptoms consistent with that condition. An experienced doctor had prescribed the PSE. Mr Chan himself contacted the doctor on a number of occasions to confirm the use of PSE by KN for chronic sinus. That contact was recorded in the notes on the dispensary computer. Not only was the condition confirmed; by the doctor, but the daily dosage was also confirmed, as was the need for a large quantity to be supplied as the customer worked as a fisherman and needed to take the medication away with him.[11]
[11]See letter from Stoddart Legal dated 2 August 2010, Document 13 of the Agreed Bundle of Documents, at p 3.
Against those mitigating factors, however, are to be weighed some factors of aggravation which the parties also agree ought be considered by the Tribunal. Those aggravating factors include that Mr Chan was a 10% owner of the pharmacy and its manager throughout the relevant period. It was therefore his responsibility to ensure that the pharmacy had systems and equipment to enable staff to comply with the Regulation and their professional obligations. As noted above, Mr Chan was, for part of that period, the preceptor of an intern employed at the pharmacy. Mr Chan’s financial interest in the pharmacy meant that he might potentially profit from the sale of PSE items.
He was, at the relevant time, a pharmacist of some 8 to 10 years experience and he concedes that he was aware that there were persons who were associated with the use of illicit drugs in the Fortitude Valley area. Sales of PSE are recorded on a real time electronic recording system known as Project STOP. Project STOP assists pharmacists to avoid dispensing to customers in circumstances where there may be a misuse or abuse of PSE. On occasions Mr Chan dispensed PSE to customers notwithstanding denials from other pharmacies being recorded on Project STOP.[12]
[12]For example, see the dispensing records in respect of customer LB referred to above.
Quite clearly, Mr Chan’s conduct satisfies the definition of unprofessional conduct contained in s 5 of the National Law. It is professional conduct that is of a lesser standard than that which might reasonably be expected of a pharmacist by his or her professional peers. By his own admission, Mr Chan has provided persons with health services of a kind that were excessive, unnecessary or otherwise not reasonably required for the persons wellbeing.[13]
[13]See paragraph (d) of the definition of ‘unprofessional conduct’ in s5 of the National Law.
The question remains, however, as to whether that conduct amounts to professional misconduct within the meaning of that expression in s 5 of the National Law.
It is ultimately unnecessary for the Tribunal to resolve that issue in these proceedings because having decided pursuant to s 196(1)(b)(ii) of the National Law that Mr Chan has behaved in a way that constitutes unprofessional conduct, its jurisdiction to take action against him under s 196(2) is enlivened to the same extent as it would have been if there was a finding of professional misconduct pursuant to s 196(1)(b)(iii).
The Tribunal is of the view that it ought not ultimately resolve whether the conduct also constitutes professional misconduct in this proceeding for a number of reasons. First, notwithstanding that the parties jointly submit that the Tribunal may be satisfied that it is appropriate to make a finding of professional misconduct as against Mr Chan,[14] it is for the Tribunal to decide (as the submission recognises), whether it is so satisfied.[15]
[14] See paragraph 25 of the Joint Submissions on Sanction filed 14 September 2012.
[15] Pharmacy Board of Australia v The Registrant [2012] QCAT 515 at [33].
Secondly, that ultimate joint submission proceeds on the basis of earlier submissions to the effect that “Mr Chan has admitted that he engaged in professional misconduct, even though he may not have been aware that he was doing so at the time.”[16] The admissions upon which those submissions are based are said to be contained in paragraphs 14 and 15 of Annexure ‘B’ to the Form 36 Response filed by Mr Chan on 16 March 2012. Whilst those paragraphs (and others) of the Response contain certain concessions on the part of Mr Chan, they do not, at least not in terms, make any admission of professional misconduct within the meaning of that expression in s 5 of the National Law. The Tribunal is, therefore, reluctant to accept the ultimate joint submission that it ought be satisfied that this is a case of professional misconduct when that submission proceeds on the basis of what are said to be admissions which have not been clearly made; and without having heard the parties further on the issue beyond that which is contained in the written submission.
[16]Paragraph 15; See also paragraphs 16 and 22.8 of the Joint Submissions on Sanction filed 14 September 2012.
Thirdly, as noted above, in the Referral the Board advances only one basis for the conduct constituting professional misconduct, that being that Mr Chan has engaged in more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The Joint Submissions are completely silent on the issue of whether Mr Chan’s conduct should be seen to be multiple instances of unprofessional conduct, or whether it should be viewed as a single instance comprising one course of conduct over the relevant period.[17]
[17] Compare Pharmacy Board of Australia v Kinsey [2012] QCAT 359 at [16] – [18].
Fourthly, notwithstanding that the Board referred the matter on the basis that Mr Chan had engaged in professional misconduct because there had been more than one instance of unprofessional conduct, the Tribunal could conclude that one instance of unprofessional conduct constituted professional misconduct if satisfied that it was conduct which was substantially below the standard reasonably expected of a pharmacist of an equivalent level of training or experience. However, the Tribunal has received neither evidence nor submissions concerning the standard of conduct reasonably expected of a pharmacist of an equivalent level of training or experience to that of Mr Chan. In the absence of such evidence and/or submissions the Tribunal would be most reluctant to make findings in that regard. This is particularly so given that in other cases involving similar conduct, the Tribunal has determined that the conduct in question was unprofessional conduct, but not professional misconduct.[18]
[18]See Pharmacy Board of Australia v Kinsey [2012] QCAT 359; Pharmacy Board of Australia v Betty [2012] QCAT 550; Pharmacy Board of Australia v The Registrant [2012] QCAT 515.
Fifthly, the orders which the parties have agreed do not require a finding of professional misconduct. That is, they are appropriate as a sanction for unprofessional conduct.
For those reasons, the Tribunal finds that the conduct of Mr Chan was unprofessional conduct without resolving whether or not it might also constitute professional misconduct.
The Tribunal considers that the orders agreed between the parties are an appropriate sanction which reflect the Tribunal’s censure of unprofessional conduct and which are directed towards the maintenance of professional standards and public confidence in the profession and the protection of the public. However, the Tribunal considers one further order is appropriate. Mr Chan should not be the preceptor for any trainee pharmacist during the operational period of the suspended suspension. It may be that this will already be so as a consequence of him no longer being the manager of the pharmacy. However, that is not explicit on the material and it ought to be made explicit in the orders.
The Tribunal under s 66 of the QCAT Act may make an order prohibiting the publication of information that may enable a person who is affected by a proceeding to be identified.[19] The Tribunal may make such an order if the Tribunal considers it necessary for some reason in the interests of justice; or to avoid the publication of information whose publication would be contrary to the public interest.[20] The Tribunal may make the order on the application of a party or on its own initiative.[21]
[19]QCAT Act 2009, s 66.
[20] QCAT Act 2009, s 66(2).
[21] QCAT Act 2009, s 66(3).
KN, KL, BD and LB have neither participated in these proceedings nor consented to their personal information being publicised. In these circumstances it is not in the public interest for information about these individuals to be published. Further, it is in the interest of justice to prohibit the publication of such information.[22] For these reasons a non-publication order is made in regards to KN, KL, BD and LB. These persons shall be referred to as KN, KL, BD and LB.
[22] Medical Board of Australia v Van Opdenbosch [2012] QCAT 703, [42] – [43].
The orders of the Tribunal will be:
1. Mr Paul Chan's registration be suspended for a period of 6 months, to be wholly suspended for an operational period of 12 months during which time Mr Chan must not engage in any conduct in respect of which he is liable to disciplinary action by the Board or the Tribunal.
2. The following conditions be imposed on Mr Chan's registration:
a)Mr Chan must complete a tertiary module on ethical decision making within 12 months of the date of the Tribunal's decision;
b)For the purpose of condition (a) above, Mr Chan is to nominate a course for the approval of the Board;
c)Mr Chan is to submit documentary evidence to the Board upon completion of the course;
d)Mr Chan must participate in a mentoring program for 6 months which includes the following elements:
I)The Mentor is to be a senior registered pharmacist approved by the Board;
II)Mr Chan must meet the Mentor on a monthly basis for no less than 2 hours;
III)The mentoring relationship will be directed to professional practice processes, currency of knowledge and practice, clinical competence and professional obligations;
IV)Mr Chan will authorise the Mentor to provide a report in writing to the Board at the end of each quarter and the end of the period of the mentoring;
e)Mr Chan is to nominate a Mentor for the approval of the Board within 2 months of the date of the Tribunal's decision;
f)Mr Chan must bear the costs incurred to comply with these conditions;
g)Mr Chan must not be the preceptor of any intern pharmacist during the operational period of the suspended suspension.
3. The review period of the conditions imposed on the Mr Chan's registration is 12 months from the date of the Tribunal's decision.
4. Mr Chan not be permitted to apply for reinstatement of his unrestricted endorsement to deal with PSE until he has complied with conditions (a) and (d).
5. Mr Chan pay the Board's costs of and incidental to these proceedings fixed in the sum of $12,000.
6. Until further order of the Tribunal the publication of any information identifying the persons referred to in the decision as KN, KL, BD and LB is prohibited.
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