Pharmacy Board of Australia v Donnelly

[2011] QCAT 584

CITATION: Pharmacy Board of Australia v Donnelly [2011] QCAT 584

PARTIES:	Pharmacy Board of Australia (Applicant/Appellant)
v
Alison May Donnelly (Respondent)

APPLICATION NUMBER:   OCR270-10

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President
Assisted by:
Ms Kerrie Kensell
Dr Margaret Shapiro
Ms Karin Walduck

DELIVERED ON: 22 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.   Ms Donnelly’s registration is suspended for six months.

2.   The suspension order is wholly suspended, provided that Ms Donnelly must not be subject to disciplinary action by the Tribunal for twelve months from the date of this order.

3.   The following conditions must be imposed on Ms Donnelly’s registration:

3.1  Ms Donnelly must complete a tertiary module in ethical decision-making.

3.2  Ms Donnelly must nominate a course for the approval of the Board.

3.3  Ms Donnelly must submit documentary evidence to the Board upon completion of the course.

3.4  Ms Donnelly must undergo mentoring for not less than 2 hours per month for 6 months.  The mentoring should focus upon ethical decision-making in a dispensing environment and strategies to resist pressure to inappropriately dispense.

3.5  Ms Donnelly must nominate a mentor for the approval of the Board, who must be a practising pharmacist who is senior to her in age and experience.

3.6  The mentor must provide a report in writing to the Board at the end of each quarter and upon completion of the period of mentoring.

3.7  Ms Donnelly must bear any costs associated with the provision of mentoring including the provision of reports to the Board.

3.8  Ms Donnelly must complete the Australian Pharmacy Competency Assessment Tool administered by the Australian Pharmacy Council Ltd at the end of the period of suspension.

4.   Ms Donnelly may not apply for reinstatement of her endorsement under the Health (Drugs and Poisons) Regulation 1996 s 171 for Testosterone, Nandralone and Somatropin for 12 months from the date of this order.

5.   Ms Donnelly must pay the Board’s costs of and incidental to these proceedings fixed in the sum of $15,000, within 45 days of the date of this order.

CATCHWORDS: 

HEALTH – PHARMACIST – DISCIPLINARY PROCEEDINGS – where pharmacist dispensed anabolic steroids in quantities, combinations and frequency that well exceeded normal dispensing practices – where young pharmacist who received no personal benefit – where parties agreed on the orders that should be made

Health (Drugs and Poisons) Regulation 1996 s 64

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

1. Ms Donnelly graduated as a pharmacist in 2004.  These proceedings involve her practice as a pharmacist in Gladstone, between July 2008 and March 2009.  In that period, Ms Donnelly dispensed the following anabolic steroids to a single customer:

a)84 Deca-Durabolin ampoules;

b)138 Primoteston Depo ampoules;

c)1350 Proviron tablets; and

d)126 Sustanon ampoules.

1. Such medications have the potential for misuse and abuse.  It is well known in the profession that there is an illicit market in their trade.

2. Ms Donnelly conceded that she had engaged in unsatisfactory professional conduct in the following respects:

a)Her conduct fell below the standard that might reasonably be expected of her by the public and her professional peers;

b)Her conduct demonstrated incompetence or lack of adequate knowledge, skill, judgment or care in the practise of her profession; and

c)She provided a person with health services of a kind that was excessive, unnecessary or not reasonably required for his wellbeing.

1. A pharmacist’s primary concern must be the health and wellbeing of the consumer and the community.[1]  Pharmacists must promote judicious, appropriate, safe and effective use of medicine and be aware of the trends and patterns of use of commonly misused substances.[2]

   [1]Professional Practice Standards of the Pharmaceutical Society of Australia (version 3, 2006) Standard 1, criterion 2.

   [2]Professional Practice Standards of the Pharmaceutical Society of Australia (version 3, 2006) Standard 1, criterion 5.

2. This requires pharmacists to exercise professional judgment to prevent the supply of products likely to constitute an unacceptable hazard to health or to supply unnecessary or excessive quantities of medicines with the potential for abuse or dependency.[3]

   [3]Pharmaceutical Society of Australia Code of Professional Conduct (endorsed by the National Council in March 1998) Principle 1 and Obligation 1.3.

3. Ms Donnelly knew, or ought to have known, that the quantity and combinations of restricted drugs she dispensed to the customer were not necessary for a therapeutic purpose.  She agreed she should have suspected the volume dispensed was not for the customer’s personal use and that, had he used them in the volumes and frequency actually dispensed, it could cause him harm.

4. Ms Donnelly should have been alert to the possibility that the customer was diverting or abusing steroids for the reasons succinctly expressed in the uncontested report by the pharmacist, Brett Simmonds.

5. It is unusual for a doctor to prescribe two or more different preparations of steroids of similar use and outcome to a patient at the same time.  The volume dispensed exceeded the quantities usually prescribed for each medication.  The frequency of dispensing was far in excess of normal dosage ranges, by reference to MIMS On-Line, an online medical reference source.   

6. Ms Donnelly’s conduct occurred in the context of two other pharmacists at the practice dispensing to the same customer.  This suggests a failure in the pharmacy’s procedures for monitoring dispensing practices.  However, an audit conducted by Queensland Health concluded the problem was confined to a single customer.

[10]  Ms Donnelly was a relatively junior pharmacist at the time.  She was an employee who received no financial benefit from these transactions.  Although she said she felt some pressure to dispense to the customer, it does not seem that Ms Donnelly took any active steps to manage the situation.  That may well reflect her limited professional development but is a passive and inadequate approach to her responsibilities.

[11]  The Tribunal is concerned that Ms Donnelly maintains her denial that she dispensed outside the terms of her endorsement.  The endorsement is only to the extent necessary to practise pharmacy.[4]  Implicit in the admissions Ms Donnelly made in these proceedings is her concession that it was not necessary to dispense as she did to this customer.  The incongruity of her stance on this issue suggests she does not yet fully comprehend both her legal and her ethical obligations.  The orders jointly proposed by the parties will ensure Ms Donnelly receives further tuition and guidance about that.

[4]        Health (Drugs and Poisons) Regulation 1996, s 64.

[12]  The orders ensure the public is protected and that professional standards are maintained, through a combination of training, assessment and mentoring.

[13]  The Tribunal has ordered that Ms Donnelly’s registration be suspended for six months.  This serves to denounce her conduct and deter others from similar practices.  In Ms Donnelly’s case, the order is suspended.  The decision to suspend the order recognises her youth and professional immaturity, that she derived no personal benefit, and her otherwise good character.  During the next 12 months, Ms Donnelly is at risk of the suspension order being activated if she is subject to further disciplinary proceedings in the Tribunal.

[14]  Ms Donnelly has agreed to pay the Board’s legal costs and the parties have agreed on the sum.  Given the findings made against Ms Donnelly, it is appropriate that she bear those costs.