Pharmacy Board of Australia v Hung
[2014] QCAT 148
| CITATION: | Pharmacy Board of Australia v Hung [2014] QCAT 148 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Mr Phillip Hung (Respondent) |
| APPLICATION NUMBER: | OCR057-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 8 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by |
| DELIVERED ON: | 8 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law (Queensland) (‘National Law’), Mr Hung is reprimanded. 2. Pursuant to s 196(2)(b) of the National Law, the following conditions be imposed Mr Hung’s registration: (a) Mr Hung is to undergo a period of mentoring for not less than two hours per month for six months. (b) For the purpose of condition (a) above, Mr Hung is to nominate a mentor for the approval of the Pharmacy Board, who must be a pharmacist practicing in an accredited pharmacy and senior to Mr Hung in age and experience. (c) The mentor must provide a report in writing to the Pharmacy Board after three months and upon completion of the mentoring period. (d) In addition to completing the mandatory Continuing Professional Development (‘CPD’) requirements set out in the Pharmacy Board’s Registration Standard for CPD, Mr Hung is to complete additional CPD modules in Domain 1 (Professional and Ethical Practice) and Domain 2 (Communication, Collaboration and Self-Management). The additional modules are to be completed within twelve (12) months. (e) Mr Hung is to retain membership of the Pharmaceutical Society of Australia for a period of two years. (f) Mr Hung is to be responsible for paying any costs associated with these conditions. 3. The details of the conditions imposed on Mr Hung’s registration be recorded on the Pharmacy Board’s Register for the period the conditions are in force. 4. Pursuant to s 116(3) of the National Law, the review period for the conditions imposed on the Registrant’s registration is three (3) years. 5. Pursuant to s 195 of the National Law, Mr Hung pay the Pharmacy Board’s costs of and incidental of the proceedings in a sum to be agreed or assessed by the Tribunal. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the respondent facilitated sales of pseudoephedrine in breach of ss 273A and 277(1)(a) of the Health (Drugs and Poisons)Regulation 1996 (Qld) – where respondent admitted he ought to have known the pharmacy was being targeted by drug runners – whether the respondent’s conduct amounts to professional misconduct PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN PROFESSIONAL RESPECT – where the applicant seeks that the respondent be suspended for three months – where the applicant seeks the suspension be suspended for 18 months – whether the Tribunal can suspend a suspension pursuant to the Health Practitioner Regulation National Law (Queensland) Health Practitioner Regulation National Law (Queensland), s 5, s 196(2)(b) Pharmacy Board of Australia v Naghdi [2012] QCAT 675 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J Forbes of DLA Piper Lawyers |
| RESPONDENT: | Mr G Kalimnios of counsel directly instructed by Mr Hung |
REASONS FOR DECISION
Mr Phillip Hung is the third pharmacist associated with the Terry White Chemist Wynnum Plaza Pharmacy to be the subject of disciplinary proceedings relating to the sale of pseudoephedrine (PSE) from that pharmacy. The other pharmacists to have been disciplined were Mr Tavakol, who owned the pharmacy, and Ms Naghdi who managed it. The Pharmacy Board of Australia alleges that Mr Hung has engaged in conduct which constitutes professional misconduct as defined by the Health Practitioner Regulation National Law (Queensland) (‘National Law’). Alternatively, the Board alleges that his conduct constitutes unprofessional conduct as defined.
Mr Hung’s conduct
Between 7 April 2010 and 9 July 2010 Mr Hung was employed fulltime as a pharmacist in the pharmacy. Prior to that he had worked as a locum in the pharmacy on several occasions.
On 23 June 2010 an employee of Queensland Health was sold PSE by a pharmacy assistant at the pharmacy. At the time Mr Hung was the pharmacist on duty. He did not, however, have any direct involvement in the sale of the PSE. No therapeutic need of the purchaser for the PSE was established.
Section 277 of the Health (Drugs and Poisons) Regulation 1996 (Qld) prohibits pharmacists selling schedule 3 PSE unless they are reasonably satisfied the purchaser has a therapeutic need for the PSE.
On 24 June 2010, another employee of Queensland Health was sold PSE by a pharmacy assistant at the pharmacy. Again, Mr Hung was the pharmacist on duty, but was not involved in the sale. The purchaser’s therapeutic need for the PSE was not established.
On neither occasion was the purchaser offered an alternative product which did not contain PSE. Section 273A of the Regulation prohibits the sale of PSE unless the pharmacist has prepared or adopted a quality standard and complies with the standard when making sales. The pharmacy had prepared a quality standard. The standard provided that if, there were any appropriate products available to treat the customer’s symptoms that did not contain PSE, those products would be suggested to the customer as an alternative. The sale on each occasion to the Queensland Health employees was in contravention of the pharmacy’s quality standard.
Queensland Health conducted an audit of the dispensing of PSE products by the pharmacy for the period 2 January 2008 to 9 July 2010. Between 7 April 2010, when Mr Hung became a fulltime employee, and 9 July 2010 he dispensed 1653 products containing PSE. This represented about 10% of the sales of PSE by the pharmacy during that period. It is only in respect of this period that the Board alleges that Mr Hung engaged in professional misconduct or unsatisfactory professional conduct.
Mr Hung concedes that he facilitated sales of PSE that were inappropriate; they were in a volume and at a frequency beyond that necessary for therapeutic purposes. On 10 occasions over a 6 month period he dispensed multiple packs of PSE products. Some sales were made to customers where information contained on the online electronic database, Project STOP, revealed that other local pharmacies had denied sales to those persons. Mr Hung also concedes that he inappropriately dispensed PSE in that 5 of the customers who most frequently purchased PSE from the pharmacy did so in 2 groups; and there were a number of customers who repeatedly purchased or attempted to purchase PSE from the pharmacy on common dates and at times close together.
At all times when working in the pharmacy Mr Hung had available to him access to the pharmacy’s electronic dispensing database which included the patient’s record of purchases of PSE product. Mr Hung also had access to Project STOP. From that he would have been able to establish the patient’s PSE dispensing history from other pharmacies and whether he or she had been denied sales.
Mr Hung concedes that, upon reflection, given the data and information available to him he ought to have known that the pharmacy was being targeted by drug runners with respect to the dispensing of PSE medications.
Does Mr Hung’s conduct amount to professional misconduct?
The Board alleges that the conduct to which Mr Hung admits amounts to professional misconduct. It is submitted for Mr Hung that professional misconduct is not made out; only a finding of either unprofessional conduct or unsatisfactory professional performance is warranted.
Section 5 of the National Law defines ‘unprofessional conduct’ as ‘professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s peers.’ The definition includes a number of circumstances which will satisfy the definition. Of those the Board only identifies ‘providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the persons wellbeing.’
Section 5 defines ‘professional misconduct’ to include:
(a) ‘unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) 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; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit an proper person to hold registration in the profession.’
The Board submits that Mr Hung’s conduct satisfies each of sub paragraphs (a) and (b) of the definition. In the alternative, the Board submits that Mr Hung’s conduct is unprofessional conduct.
The Board contends that Mr Hung’s conduct must be unprofessional conduct because he admits that it amounts to a failure to comply with the Regulation and the Pharmaceutical Society of Australia’s Code of Professional Practice, and Versions 3 and 4 of the Professional Practice Standards of the Pharmaceutical Society of Australia. The Board says that Mr Hung has admitted each of these failures to comply in his amended response to the referral.
In terms, Mr Hung has not admitted contraventions of the Code or the Standards. The Board pleaded against him that the Code and the Standards applied to him. He admits that. But the Board has not pleaded that his conduct breached the Code and the Standards. However, it can be inferred that the admitted conduct did constitute a failure to comply with the Code and Standards.
By contrast, in the agreed statement of facts Mr Hung has admitted that the sales of PSE product to the Queensland Health employees on 23 and 24 June 2010, for which he now admits he was the dispensing pharmacist on duty, was in contravention of the Regulation.
On Mr Hung’s behalf it is submitted that ‘before the Tribunal can be satisfied that Mr Hung’s conduct was below the standard expected, it must satisfy itself of what the standard of the public or peer would be’, and that this requires consideration of the standard that the public or a peer would expect of a pharmacist in the circumstances of Mr Hung. A number of factors are identified as being relevant to that consideration. These included: that Mr Hung was a relatively junior pharmacist; it was his initial placement upon graduation; he was an employee with no control concerning the lack of a proper system of management or policy relevant to PSE sales; his immediate supervisors were a husband and wife who, respectively, owned and managed the pharmacy; he had been provided with no training on how to deal with more than one customer presenting at the same time, often insistent and at times aggressive, wishing to purchase PSE products; and that neither the National Law nor the Pharmacy Guild provide a mentoring scheme or a scheme by which junior pharmacists can avail themselves of advice if faced with a dilemma of an employer pressuring the employee to sell whilst remaining employed and adhering to professional requirements and obligations.
It is submitted for Mr Hung that a member of the public considering those matters would not form the view that he had breached the standard applicable to him as a pharmacist; but would be satisfied that he had exhibited unsatisfactory professional performance.
Section 5 of the National Law defines unsatisfactory professional performance as follows:
‘Unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.’
As to the expectations of his peers, reliance was placed upon the statement by Mr Brett Simmonds, a pharmacist who gave evidence for the Board, that ‘Mr Hung was responsible for dispensing of PSE in a volume and frequency that showed a regular lack of professional judgment in the supply of unreasonably and excessive quantities of PSE’.
That passage of Mr Simmonds’ report quoted on Mr Hung’s behalf is only in respect of one aspect of his conduct; the extent of his responsibility for the sale of PSE during the relevant period given that he was one of two pharmacists employed fulltime and that he had access to Project STOP and the pharmacy’s dispensing records. Elsewhere in his report Mr Simmonds observed that the sales to the Queensland Health employees were inappropriate because no therapeutic need had been established and that they were in breach of the Regulation. Mr Simmonds said that whilst Mr Hung was probably following the pharmacy’s procedures at the time, and would have been heavily influenced by the managing pharmacist’s interpretation of these procedures, as a pharmacist Mr Hung must be aware of his obligations in dispensing PSE as stated in the Society’s Code of Practice on PSE.
Mr Simmonds expressed the overall opinion that Mr Hung had departed from his professional obligations and facilitated inappropriate sales of PSE. Particularly, that he failed the principal object of the Code to exercise professional judgment to prevent the supply of products likely to constitute an unacceptable hazard to health, or the supply of unnecessary or excessive quantities of medicine or products, particularly those which have a potential for abuse or dependency.
In my view, the public and Mr Hung’s peers within the profession would reasonably expect a registered pharmacist to dispense in accordance with professional codes and standards. In any event, Mr Kalimnios who appeared for Mr Hung conceded that the sales to Queensland Health employees was unprofessional conduct.
I am satisfied that Mr Hung’s conducted amounted to, at least, unprofessional conduct. The question then becomes whether it amounts to professional misconduct.
For Mr Hung it is contended that it does not because in order for professional misconduct to be proven the matters contained in each of the three subparagraphs in the definition must be established. That construction of the definition of professional misconduct is clearly incorrect. It would require the word “includes” to be read as “is”. It would also require there to be, in all cases, both unprofessional conduct that amounts to conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience, and more than 1 instance of unprofessional conduct that, when considered together, amount to conduct that is substantially below the standard reasonably expected of a practitioner at that level. That is nonsensical.
It would also require that in every case alleging professional misconduct, conduct inconsistent with the practitioner being a fit and proper person to hold registration would have to be established.
Notwithstanding this clearly incorrect construction of the definition of professional misconduct, I am of the view that professional misconduct has not been made out.
The real issue is whether conduct of Mr Hung, either on its own or in connection with other conduct, is substantially below the standard to be reasonably expected of a pharmacist of an equivalent level of training and experience.
Mr Simmonds is a very experienced pharmacist having graduated in 1980. He has over 30 years experience, most of which has been as the manager and/or proprietor of pharmacies. The standard to be reasonably expected of Mr Simmonds is not the standard to be applied to Mr Hung. Whilst Mr Simmonds quite fairly refers to Mr Hung’s inexperience and states that he would have been guided by the owner and manager of the pharmacy, when considering the issue of whether Mr Hung’s dispensing can be described as repeated and inappropriate, Mr Simmonds took into account what he thought to be ‘typical behaviour of groups of drug runners’. However, that view was expressly based upon his own experience which, as I have said, was considerably greater than Mr Hung’s.
Mr Forbes, who appeared for the Board, submitted that the aspect of this matter which most supported a finding of professional misconduct was the sheer volume of the sales of PSE in the relevant period. He referred to the findings in the Pharmacy Board of Australia v Naghdi[1] that the pharmacy was the highest seller of PSE in the country. For reasons which I developed in Pharmacy Board of Australia v Tavakol,[2] I am not prepared to act on the basis that this was so.[3] The conclusion that the pharmacy was the highest seller of PSE is based upon information recorded in the Project STOP database. Participation, for most of the relevant period was voluntary. Some pharmacies may have recorded some sales only, or none at all.
[1][2012] QCAT 675 (‘Naghdi’).
[2][2014] QCAT 112 (‘Tavakol’).
[3]Ordinarily, the Tribunal should not look to facts found in one case upon which to make findings in another case. However, Mr Forbes having raised, without objection, the facts in Naghdi, it is appropriate in this case to consider the facts in relation to the same issue as found in Tavakol.
Mr Forbes conceded that Mr Simmonds’ opinion fitted more comfortably with a finding of unsatisfactory professional conduct rather than professional misconduct.
In my opinion, the conduct of Mr Hung is considerably less serious than that of either Ms Naghdi or Mr Tavakol, each of whom were found to have engaged in professional misconduct.
Mr Hung’s conduct does not amount to professional misconduct.
Sanction
The Board has proposed a sanction whereby Mr Hung’s registration would be suspended for a period of 3 months, with that suspension to be wholly suspended for an operational period of 18 months. The Board also proposes that conditions be imposed on Mr Hung’s registration.
Mr Hung submits that he should be reprimanded and conditions imposed upon his registration in the terms proposed by the Board.
For reasons which I developed in Pharmacy Board of Australia v Tavakol,[4] I doubt that a suspension of a practitioner’s registration (or other decision under s 196(2) of the National Law) can be suspended. But it is unnecessary for me to consider that question further in this case because I am of the view that a suspension of Mr Hung’s registration is not called for.
[4][2014] QCAT 112 at [36] – [49].
In Tavakol, I considered that issues of parity arose in respect of the conduct of Mr Tavakol and Ms Naghdi.[5] I considered that Mr Tavakol’s misconduct was to be viewed as being in the same order as Ms Naghdi. Each of them was suspended for an actual period of 1 month.[6]
[5]Ibid at [54].
[6]Ms Naghdi was suspended for 6 months with the balance of the suspension suspended for an operational period of 12 months.
Given that I have found Mr Hung’s conduct not to be professional misconduct, whereas both Mr Tavakol’s and Ms Naghdi’s conduct was found to be so; and given that, overall, I consider his conduct to be considerably less serious than theirs, it is appropriate that he not be suspended. I do not consider that suspension is necessary to protect the public in his case. I think that his case calls for less specific and general deterrence.
Mr Hung will be reprimanded. As was pointed out by Judge Kingham, the former Deputy President of QCAT, in Medical Board of Australia v Grant,[7] a formal reprimand of a professional is not a trivial penalty. It is a matter of public record which would be viewed seriously by the professional’s colleagues who could be expected to think less of the practitioner because of it. That is, it affects the practitioner’s reputation and may have significant implications for his or her career prospects.
[7][2012] QCAT 285 at [49].
The conditions proposed by the Board are appropriate and not opposed by Mr Hung. They shall be imposed pursuant to s 196(2)(b).
The Board seeks its costs. In disciplinary proceedings such as these whereby a Board refers matters to the Tribunal, funded by the fees paid by members of the profession of good standing to protect the public and uphold the reputation of the profession, it is appropriate that the Board have its costs.
The costs of the Board are to be paid by Mr Hung in the amount agreed or, failing agreement, as assessed by the Tribunal.
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