Pharmacy Board of Australia v Heron
[2011] QCAT 424
•9 September 2011
| CITATION: | Pharmacy Board of Australia v Heron [2011] QCAT 424 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Edmund Heron (Respondent) |
| APPLICATION NUMBER: | OCR273-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Ms K Allen Ms P Mathers Mr K Walsh |
| DELIVERED ON: | 9 September 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Heron’s registration is suspended for three months from the date of these orders. That suspension is wholly suspended for 12 months provided Mr Heron does not face further disciplinary action and complies with the orders that follow. 2. Mr Heron must complete a course in ethical decision making approved by the Board within 6 months and must submit documentary evidence of completion to the Board. 3. Upon Mr Heron’s endorsement for Pseudoephedrine (PSE) being reinstated by the Chief Executive, Queensland Health Mr Heron must participate in a 12 month mentoring program with a mentor he nominates and who is approved by the Board. The mentoring program should focus upon ethical decision making in dispensing, in particular the need to counsel clients on the therapeutic use of PSE and the alternatives which are available and can be substituted safely.4. |
| CATCHWORDS: | DISCIPLINARY – Pharmacist – Where pharmacist employed part time in a pharmacy targeted by drug runners for illicit manufacture of methamphetamine – where pharmacist dispensed when he could not reasonably be satisfied there was a therapeutic need for products containing pseudoephedrine and despite notations on Project STOP – where pharmacist co-operated in proceedings and genuinely insightful and remorseful – whether orders jointly proposed by the parties were appropriate Health (Drugs and Poisons) Regulation 1996, ss 277, 285A Health Practitioners (Professional Standards) Act 1999, ss 124(1)(a), 405L, 405P(1), (5) Health Practitioner National Law (Qld), s 289 Pharmacists Board of Queensland v Coffey [2008] QHPT Griffin SC DCJ 14/10/08 cited Pharmacists Board of Queensland v Mikhail [2010] QCAT 621 cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Act 2009.
REASONS FOR DECISION
These proceedings involve pseudoephedrine (PSE), a drug prone to abuse. It is the main precursor chemical in the manufacture of methamphetamine, commonly referred to as speed. In recent years, health regulators and the profession have pursued a national strategy to restrict illegitimate access to products containing PSE, in order to deal with the growing incidence of illicit drug manufacture.[1]
[1]National Strategy to Prevent the Diversion of Precursor Chemicals into Illicit Drug Manufacture (National Precursor Strategy). See conduct
Mr Heron, a pharmacist for almost 30 years, concedes he has engaged in unsatisfactory professional conduct in the way in which he dispensed medications involving PSE to certain customers between 1 January 2008 and 26 November 2009 (the sales period).
The primary professional concern of a pharmacist must be for the health and wellbeing of consumers and the community. The Pharmacists Code of Conduct requires a pharmacist to be aware of the trends and patterns of use of commonly misused substances, including PSE.[2] The profession expects a pharmacist to exercise professional judgment to avoid supply of unnecessary or excessive quantities of medicines, particularly those with potential for abuse.[3]
[2]Professional Practice Standards of the Pharmaceutical Society of Australia Standard One, Criterion 5.
[3]Pharmaceutical Society of Australia Code of Professional Conduct Principle One, obligation 1.3.
In January 2006, PSE was classified as a Schedule 3, Pharmacist Only, poison. This meant pharmacists could no longer sell products containing PSE unless reasonably satisfied the purchaser had a therapeutic need for it and with knowledge or proof of the purchaser’s identity.[4] Pharmacists were also required to retain records of its sale.[5]
[4] Health (Drugs and Poisons) Regulation 1996, s 277.
[5] Health (Drugs and Poisons) Regulation 1996, s 285A.
This case involves persons suspected of sourcing supplies for speed manufacture. Authorities refer to such customers as pseudo-runners. They visit multiple pharmacies buying small quantities of PSE products, which they pool as a supply for drug manufacture.
Sometimes pseudo-runners operate in pairs or groups. Sequential sales are an indication that this is occurring. Sequential sales is the term used to describe the pattern established when the same customers repeatedly present at a pharmacy to buy PSE products together or close in point of time. A pattern of sequential sales should put the pharmacist on notice that the purchases are not required for therapeutic purposes.
An online recording and reporting system known as Project STOP is available to assist pharmacists, police and health authorities to better distinguish between legitimate customers and pseudo-runners. It allows them to check a customer’s previous purchases of products containing PSE and to record new transactions. The pharmacy involved in these proceedings used integrated point of sale and dispensing computer systems and had access to Project STOP.
On 26 November 2009, the pharmacy was audited at the instigation of the State Drug Investigation Unit of the Queensland Police Service. The results indicated the pharmacy had sold PSE to persons who fitted the profile of pseudo-runners.
Mr Heron admitted he knew (or ought to have known) that pseudo-runners were targeting the pharmacy. The audit established 8,847 PSE sales by the pharmacy during the sales period. More than a quarter of these were sequential sales. The customers involved in the sequential sales were three couples.
The Board specifically relied on transactions involving almost 650 PSE items and 10 separate customers. For each transaction, Mr Heron either was the dispensing pharmacist or was responsible for the pharmacist who dispensed the items. For all but two of the customers, he admitted the dispensing was beyond the extent necessary to practice pharmacy. For a third customer, Mr Heron says he spoke to his employer and was told to work to a plan to reduce the volume and frequency of sales to that customer.
Sales were made to all ten customers after notations had been recorded on Project STOP to the effect that another pharmacy had denied a sale or made a safety sale to them. A safety sale is one made when a pharmacist considers they might be at risk if they deny the sale. On some occasions, the pharmacy for which Mr Heron worked did not record sales to these customers on Project STOP.
In May 2010, the Chief Executive of Queensland Health removed Mr Heron’s endorsement to dispense PSA and referred the information gathered during the investigation to the Board. Mr Heron has not contested the findings and orders sought by the Board.
The findings and sanction
The Tribunal is satisfied Mr Heron has engaged in unsatisfactory professional conduct.[6] His conduct was of a lesser standard than might reasonably be expected of him by the public and his professional peers. The conduct demonstrated incompetence or a lack of adequate knowledge, skill, judgment or care in the practise of his profession. Mr Heron provided a number of customers with health services of a kind that were excessive, unnecessary or not reasonably required for their wellbeing.
[6]Health Practitioners (Professional Standards) Act 1999 s 124(1)(a). The effect of transitional provisions (following) 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: Health Practitioners (Professional Standards) Act 1999, s 405L, s 405P(1),(5); Health Practitioner National Law (Qld), s 289.
The purpose of disciplinary proceedings is protective, not punitive. Mr Heron’s professional failing was substantial and over a lengthy period. He conceded as much in his submissions.
In his favour is his insight and remorse. He demonstrated this by his co-operation in these proceedings. At no stage did he contest the substance of the charges made against him.
In addition, Mr Heron provided the Tribunal with a written apology and submissions in which he was forthright about his conduct. They demonstrate the discomfort he felt in facing up to his conduct. He frankly attributed his conduct to a lack of courage. His genuine expressions of remorse impressed the panel.
Mr Heron’s registration as a pharmacist has continued. He now works part time at two pharmacies, neither of which was involved in these events. His current employers provided references for Mr Heron, with knowledge of these proceedings. Both trust him and hold him in high regard.
On Mr Heron’s account, the failing was not his alone. Although he did not seek to shift his own responsibility to another, he has drawn the Tribunal’s attention to the role his former employer played in his dilemma. He raised the problem with her, although he admitted he did so too late. He candidly acknowledged he felt restrained by his financial insecurity from taking it further. Presumably, the investigating authorities and the Board are taking what action is available and appropriate against Mr Heron’s former employer. While Mr Heron could not shift his individual responsibility to his employer, nor could she abrogate hers by engaging him.
The orders proposed by the Board are consistent with the few similar cases to which it referred the Tribunal.[7] The Board proposed a short period of suspension (3 months) itself suspended for a period of 12 months. To ensure this order acts as a meaningful deterrent, the suspension of penalty must be conditional. The Tribunal’s order will be conditional upon Mr Heron completing a course of ethical decision making approved by the Board and serving 12 months without being subject to further disciplinary action.
[7]Pharmacists Board of Queensland v Mikhail [2010] QCAT 621; Pharmacists Board of Queensland v Coffey [2008] QHPT Griffin SC DCJ 14/10/08.
The other orders proposed by the Board involve ethics training and mentoring once Mr Heron’s endorsement to dispense PSA has been restored. These are appropriate measures to protect the public and to maintain professional standards and public confidence in the profession.
The Board’s request for an order for costs is not opposed by Mr Heron. The Board has fulfilled its statutory function in bringing the proceedings, has established its case and appears to have conducted the proceedings in the most efficient manner given Mr Heron’s attitude to the proceedings. It has requested an order in the sum of $7,000 but has not provided an estimate of that. I will make an order to fix the costs on production of a short form estimate assessed against the District Court scale.
Mr Heron qualified as a pharmacist in 1982. There have been no other disciplinary proceedings against him. He has been forthcoming and co-operative in these proceedings. He was a part time employee of a pharmacy targeted by drug runners. He obtained no personal gain from his dispensing practices. He has demonstrated genuine insight and remorse. The orders will ensure the public retains the services of a qualified pharmacist, well regarded by his current employers with a renewed appreciation of his ethical obligations.
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