Pharmacy Board of Australia v Chung
[2012] QCAT 483
•2 October 2012
| CITATION: | Pharmacy Board of Australia v Chung [2012] QCAT 483 |
| PARTIES: | Pharmacy Board of Australia |
| v | |
| Matthew Man-Yiu Chung |
| APPLICATION NUMBER: | OCR004-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers 28 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O'Callaghan, Acting Deputy President Assisted by: Pamela Mathers Andrew Petrie Allen Thomas |
| DELIVERED ON: | 2 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Chung is reprimanded. 2. The details of Mr Chung’s reprimand be recorded on the Board’s register for twelve months from the date of this order. 3. The following conditions be imposed on Mr Chung’s registration: a. Mr Chung is to complete 50 credits of continuing professional development (“CPD”) within 12 months of the date of this order: i. At least 5 credits in Domain 1 (Professional and Ethical Practice): and ii. At least 5 credits in Domain 2 (Communication, Collaboration and Self Management). b. Mr Chung must demonstrate the pharmacy is accredited and/or has current accreditation under the Quality Care Pharmacy Program (“QCPP”), or equivalent, within 12 months from the date of this order. c. Mr Chung must maintain a membership of the Pharmaceutical Society of Australia and the Pharmacy Guild of Australia for a period of 12 months from the date of this order. d. Mr Chung will provide the Board with evidence that he is a member of the Pharmaceutical Society of Australia and the Pharmacy Guild of Australia within 1 month of the date of this order. e. Mr Chung will participate in a mentoring program that includes the following: i. Monthly sessions of mentoring for a period of 12 months. ii. Mr Chung is to nominate a mentor for the approval of the Board. iii. The mentor is to be a registered pharmacist, of appropriate maturity and experience, who has experience in the operation of a QCPP or equivalent accredited pharmacy. iv. During the period of mentoring, Mr Chung and the mentor will meet on 4 separate occasions at Mr Chung’s pharmacy for the purposes of the monthly mentoring. Mr Chung will authorise the mentor to provide a report in writing to the Board at the end of each quarter and at the end of the period of the mentoring. f. Mr Chung is to nominate a mentor for the approval of the Board within 2 months of the date of this order. g. Mr Chung must bear the cost incurred to comply with these conditions. h. The details of the conditions imposed on Mr Chung’s registration be recorded on the Board’s register for the period in which the conditions are in force. 4. Mr Chung not apply to the Chief Executive, Queensland Health, under the Health (Drugs and Poisons) Regulation 1996 (Qld) for reinstatement of his unrestricted endorsement under s 171 and s 257 of the regulation for pseudoephedrine for a period of 12 months from the date of this order. 5. Pursuant to s 255 of the Act Mr Chung pay the Board’s costs of and incidental to these proceedings in the sum that is agreed or assessed. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – PHARMACIST – DISCIPLINARY – Where the Tribunal considered whether the state or national scheme applied – Where pharmacist in rural town failed to comply with requirements for recording sales of pseudoephedrine – where pharmacist professed ignorance of the regulatory requirements – where use of PSE for illicit manufacture of methyl amphetamine notorious – where pharmacist dispensed clomiphene on the prescription of a general practitioner – whether pharmacist’s conduct amounts to unsatisfactory professional conduct Queensland Civil and Administrative Tribunal Act 2009, s 32. Medical Board of Australia v Grant [2012] QCAT 285 |
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 Chung obtained registration as a pharmacist in November 2003.
In 2006 he established a pharmacy at Withcott, a small town at the bottom of the Toowoomba range with a population of approximately 2,000 people. From commencement of the business up until July 2010 Mr Chung was the only pharmacist and staff member of the pharmacy.
This disciplinary action arose as a result of an audit on the pharmacy conducted in 2009, the purpose of which was to assess whether the pharmacy was complying with the relevant provisions of the Health (Drug and Poisons) Regulation 1996 relating to the obtaining, dispensing and supply of scheduled medicine.
Mr Chung’s pharmacy was found to be noncompliant in relation to the dispensing of two drugs; pseudoephedrine (‘PSE’) and clomiphene. PSE is known to be a drug targeted for non-therapeutic purposes namely in the illegal manufacture of methyl amphetamines. For this reason, a national strategy has been adopted by health regulators to reduce illegitimate access to PSE.[1]
[1]National Strategy to Prevent the Diversion of Precursor Chemicals into Illicit Drug Manufacture (National Precursor Strategy), see >
As part of the strategy PSE was reclassified as from the 1 January 2006 as a Schedule 3, Pharmacist Only medicine. The consequence is that a pharmacist can only sell the product if they are:
a. satisfied that the purchaser had a therapeutic need for the product; and
b. they had knowledge or proof of the purchaser's identity.[2]
[2] Health (Drugs and Poisons) Regulation 1996, s 277.
Pharmacists are also required at the time of sale to record details of the sale, including the quantity of product, the name and address of the purchaser and details of any identification provided upon request of the pharmacist.[3]
[3] Health (Drugs and Poisons) Regulation 1996, s 285A.
Clomiphene is a restricted drug. It is a medication that stimulates ovarian egg production and therefore improves chances of pregnancy. It can only be dispensed when a specialist in obstetrics and gynaecology or internal medical prescribes it.[4]
[4] Health (Drugs and Poisons) Regulation 1996, s 187.
The parties have agreed on the relevant facts. They have filed submissions on sanction which they agree on all but one of the proposed orders.
Had the Board started to deal with the matter before the national scheme commenced?
The regulation of health professionals is currently transitioning from a state based scheme, governed by the Health Practitioner (Professional Standards) Act 1999 (the ‘Professional Standards Act’), to a new national scheme, governed by the Health Practitioner Regulation National Law Act 2009 (the ‘National Law’)
This matter was referred to the Tribunal under the Professional Standards Act. The issue arose as to whether this was correct.
Section 288 of the National Law states that where matters are already being ‘dealt with’ under the Professional Standards Act on or before 1 July 2010 the Professional Standards Act will continue to apply. In Medical Board of Australia v Grant[5] Judge Kingham considered what it meant to ‘deal with’ the matter. She concluded that to deal with a matter ‘the Board would have to demonstrate that it was actively investigating or considering the complaint.’[6]
[5] [2012] QCAT 285.
[6] Medical Board of Australia v Grant [2012] QCAT 285, [13].
On 2 March 2010 the Board received notice from Queensland Health in relation to Mr Chung. On 24 March 2010 the Board considered and assessed the notification and resolved to hold the matter in abeyance pending advice from Queensland Health in regards to their investigation.
Both parties filed submissions and agreed that holding the matter in abeyance was an active step taken by the Board. The Tribunal agrees that this is sufficient to demonstrate that they were dealing with the matter before 1 July 2010. The applicable act is the Professional Standards Act.
The Conduct
In November 2009 Queensland Health conducted an audit of Mr Chung’s pharmacy to investigate compliance with the requirement of the regulations for dispensing PSE.
The audit revealed that during January 2008 and September 2009 (the ‘audit period’) Mr Chung did not record all sales of PSE items as required by regulations. The pharmacy had obtained 1,564 units of PSE from wholesalers, there was no record for approximately 82% of these units.
It was also revealed that on two occasions Mr Chung dispensed chlomiphene to two different customers on the prescription of a general practitioner (rather than on the prescription of a specialist as required by the legislation).
The Board maintains that such conduct amounts to unsatisfactory professional conduct pursuant to s 124(1)(a) of the Professional Standards Act, as Mr Chung engaged in
a. professional conduct that involved a lesser standard than that which might reasonably be expected of Mr Chung by the public and his peers; and/or
b. professional conduct that demonstrated incompetence or lack of adequate knowledge, skill, judgement or care in the practice of his profession.
From March 2009 Mr Chung started recording sales of PSE on Project Stop with respect to people he did not personally know. In December 2009, following the audit, Mr Chung decided not to stock any items containing PSE.
Mr Chung’s endorsement to obtain, dispense, sell, possess or otherwise deal with scheduled drugs or poisons containing PSE was cancelled in September 2010.
In relation to the dispensing of chlomiphene he said he did confirm with both customers that they had taken the drug before and therefore assumed that they had been originally prescribed the drug by a specialist. He misunderstood and thought that provided the prescription had been initiated by a specialist then further prescriptions could be approved by a general practitioner.
Findings and Sanction
Mr Chung admits that failing to record the sales of PSE and dispensing chlomiphene on a GP’s prescription are breaches of the regulations and amounted to unsatisfactory professional conduct.
By way of explanation of the failure to record sales of PSE, he says he was the only person working in the pharmacy and the majority of sales were to locals known to him.
He said that before selling PSE he would always make an assessment as to whether the customer had a genuine therapeutic need for the product and if he was so satisfied then he would write the customer’s details on a label and dispense it. He said he thought this was sufficient.
The Tribunal accepts that Mr Chung engaged in unsatisfactory professional conduct.
Mr Chung says he failed to record PSE sales, due to his ignorance of the specific requirements of the regulations.
He also deposes that time pressures (as he was the sole operator of the pharmacy) prevented him from recording sales in the dispensary records in order to fully comply with the regulation. This seems to suggest that he was aware of the requirements but disregarded them because of time restraints.
In either case, his conduct falls short of the standard that might reasonably be expected of Mr Chung by the public and his professional peers. If indeed, he was ignorant of the requirements it also demonstrates the lack of adequate knowledge in the practice of his profession.
The records of sale were not only for business purposes, they were an integral part of the system of regulation devised to reduce the improper use of PSE. In keeping a record of sales the pharmacists can also assist to control the illicit diversion of PSE.
Mr Chung’s apparent lack of knowledge is also born out of his mistaken belief that further prescriptions of clomiphene could be issued by a GP after having been initiated by a specialist.
Mr Chung says that since he has been made aware of his breaches, he has made changes to the pharmacy practice;
a. He does not stock PSE;
b. He has a visible print outs of all scheduled drugs and poisons that require a specialist prescription;
c. He has employed a managing pharmacist, and all pharmacists in the pharmacy are required to contact the prescribing doctor if they have any questions about the prescriptions;
d. He undertakes mandatory continuous education;
e. The pharmacy is currently undergoing the Quality Care Pharmacy Program (“QCPP”) and he expects the pharmacy to achieve the accreditation this year.
Having found a ground for disciplinary action has been established the Tribunal must impose a sanction which may include reprimand, conditions upon registration, suspension or cancellation.[7]
[7] Section 241 Health Practitioners (Professional Standards) Act 1999.
In imposing the sanction the Tribunal must have regard to the purpose of disciplinary proceedings as set out in the Act, namely to protect the public, to uphold the standards of practice within the health profession and to maintain public confidence in the profession.[8]
[8] Sections 244 and 123 Health Practitioners (Professional Standards) Act 1999.
The parties agree on sanctions that should be imposed save for one proposed condition. The Board proposed that the Tribunal should reprimand Mr Chung and details of the reprimand be recorded on the Board’s register for 12 months. Further, they proposed that certain conditions be imposed on his registration, including completion of continuing professional development (‘CPD”) points, accreditation of the pharmacy and participation in a mentoring program. They also sought an order that Mr Chung pay the Board’s cost.
Mr Chung agrees that the proposed sanctions are appropriate except for the imposition of a condition involving mentoring.
The Board referred the Tribunal to a number of previous decisions.
The Tribunal agrees with Mr Chung that the directly comparable decision is that of the Pharmacy Board of Australia v Kinsey.[9]
[9] [2012] QCAT 359.
That case also concerned a pharmacist that was a manager of a rural pharmacy (although more remote than Withcott) who failed to record sales of products containing PSE for a comparable period.
In that case the Tribunal reprimanded the pharmacist and prohibited him from applying for reinstatement of his unrestricted endorsement, to deal with PSE, for 12 months. That pharmacist also agreed to give undertakings to maintain membership of the Pharmaceutical Society of Australia and the Pharmaceutical Guild for 12 months, to undertake 50 CPD units in 12 months and to engage in monthly mentoring for a period of eighteen months.
The differences between Mr Chung and the pharmacist in Kinsey is:
a. Mr Kinsey was a pharmacist for thirty years. Mr Chung had been registered for a period of four years before the period of conduct under review occurred.
b. Mr Chung has twice engaged in conduct that breached the regulations (inappropriately dispensing clomiphene).
c. The Tribunal had concerns as to Mr Kinsey’s attitude to professional education and his attitude to his professional responsibility. The Board says that here the Tribunal could find that in these proceedings Mr Chung displays a more conscientious attitude to his professional obligations than Mr Kinsey did.
It is true that since the breaches came to light Mr Chung has taken positive steps which indicate a more responsible attitude to his professional obligation.
In the Kinsey case the pharmacist was required to give an undertaking that he would engage in monthly mentoring to alleviate the Tribunal’s concerns about his attitude to professional responsibility and professional education.
Mr Chung says that he has shown positive changes in both professional responsibility and professional education and as he now works with another pharmacist a condition of mentoring is not necessary.
Whilst the Tribunal accepts that Mr Chung has shown a positive change in his attitude it considers the period of mentoring is still necessary and desirable. Mr Chung has practiced in an isolated environment for the whole of his professional career until recently when he employed a managing pharmacist. The mentoring by an experienced practitioner for a period of time will give him valuable exposure to appropriate professional practices and will be beneficial in his professional development.
The difference between Mr Chung’s current attitude and practices, compared to those of Mr Kinsey, are recognised in that the period of mentoring sought by the Board is 12 months as opposed to 18 months, as was the case for Mr Kinsey.
The Tribunal finds that a reprimand together with the proposed conditions is an appropriate sanction which affords protection of the public and maintains professional standards and public confidence in the profession.
Mr Chung does not oppose the Board’s request for an order that he pay the Board’s costs. It is appropriate such an order be made.
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