Pharmacy Board of Australia v Huynh
[2013] QCAT 42
| CITATION: | Pharmacy Board of Australia v Huynh [2013] QCAT 42 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Adam Huynh (Respondent) |
| APPLICATION NUMBER: | OCR193-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 12 December 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by: Dr Karin Walduck Karen Allen Ken MacDougall |
| DELIVERED ON: | 22 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 240(1) of the Health Practitioners (Professional Standards) Act 1999 (‘the Act’), the Tribunal finds that the grounds for disciplinary action against the Former Registrant are established and that the Former Registrant has engaged in unsatisfactory professional conduct. 2. Pursuant to section 243(2)(b)(ii) of the Act the Former Registrant not be able to apply for registration for a period of 1 year from the date of these orders. 3. Pursuant to section 243(2)(b)(ii) of the Act, the following conditions be imposed upon any future registration of the Former Registrant: a. That the Former Registrant complete a tertiary module in ethical decision making within 12 months of obtaining registration. b. For the purpose of condition (a) above, the Former Registrant is to nominate a course for approval by the Board. c. The Former Registrant is to submit documentary evidence to the Board upon completion of the course. d. The condition in paragraph (a) is separate and in addition to the requirements imposed on the Former Registrant pursuant to the Recency of Practice Registration Standard. e. The Former Registrant is to undergo a period of supervised practice in an accredited pharmacy approved by the Board for a period of two years. f. For the purposes of condition (e) above: i. The Registrant is to nominate a supervisor for the approval of the Board, who must be a practicing pharmacist, the owner of an accredited pharmacy and senior to him in age and experience. ii. The supervisor must provide a report writing to the Board at the end of each quarter and upon completion of the supervised period. g. The Former Registrant is not to work as a pharmacist in sole practice and is not permitted to own a pharmacy (either solely, in partnership or in a corporate structure) for a period of five years. h. The Former Registrant is to bear the costs of associated with the above conditions. 4. Pursuant to section 255 of the Act, the Former Registrant pay the Board's costs of and incidental to this proceeding in a sum as agreed or assessed. 5. The Tribunal grants the non-publication order under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 in regards to: a. documents 2, 4, 5, 6 and 7 of the Bundle of documents tendered by the Board; b. the Application for Miscellaneous Matters filed by the Board, with leave, on 12 December 2012; c. submissions on sanction filed by the Board on 12 December 2012; and d. the transcript of proceedings from the hearing on 12 December 2012. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONSALS – PHARMACUETICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the registrant dispensed pseudoephedrine in an inappropriate manner – where the registrant was convicted of an offence under the Drugs Misuse Act 1986 – where the registrant did not participate in proceedings – whether the registrant’s conduct amounted to unsatisfactory professional conduct Drugs Misuse Act 1986, s 199 Adler v Australian Securities and Investment Commission (2003) 179 FLR 1 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Louise Nixon of DLA Piper |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
On 26 August 2011 the Pharmacy Board of Australia referred a disciplinary matter to the Tribunal.[1] By that referral, the Board alleged two grounds for disciplinary action to be taken against Mr Huynh. First, that on 17 March 2008 Mr Huynh was convicted of an indictable offence, namely producing a dangerous drug contrary to the Drugs Misuse Act 1986.[2] Secondly, that Mr Huynh had behaved in a way that constitutes unsatisfactory professional conduct in that he had engaged in:
(a) Professional conduct that is of a lesser standard than that which might reasonably be expected of him by the public or his professional peers; and/or
(b) Professional conduct that demonstrates incompetence or a lack of adequate knowledge, skill, judgement or care, in the practise of his profession; and/or
(c) Infamous conduct in a professional respect; and/or
(d) Misconduct in a professional respect; and/or
(e) Conduct discreditable to his profession; and/or
(f) Fraudulent or dishonest behaviour in the practice of his profession; and/or
(g) Other improper or unethical conduct.[3]
[1]Pursuant to Health Practitioners (Professional Standards) Act 1999, s 126(1)(b).
[2]This is a ground for referral under Health Practitioners (Professional Standards) Act 1999, s 124(1)(g)(i).
[3]These allegations correspond with those matters included within paragraphs (a), (b), (c), (d), (e), (h) and (i) of the definition of ‘unsatisfactory professional conduct’ contained within the Schedule to Health Practitioners (Professional Standards) Act 1999.
Mr Huynh has not participated in the proceeding. On 24 August 2012 the Tribunal made an order for substituted service pursuant to rule 40(1) of the Queensland Civil and Administrative Tribunal Rules 2009. An affidavit of Louise Marie Nixon sworn on 13 September 2012 confirmed service of the referral upon Mr Huynh in accordance with that order. Similarly, on 19 November 2012, the Tribunal ordered that a copy of the proposed amended attachment A to the referral be served on Mr Huynh by post and by email. An affidavit of Neisha Brie-Anne Geisler sworn 27 November 2012 deposed to the service of the amended attachment A to the referral in accordance with that latter order.
The Tribunal proceeded to hear the matter in the absence of Mr Huynh pursuant to s 93(2) of the Queensland Civil and Administrative Tribunal Act 2009 (the ‘QCAT Act’) on 12 December 2012.
Mr Huynh held registration as a pharmacist from 23 October 1996 to 31 December 1997 and, subsequently, from 17 March 2003 to 30 June 2007.[4] No explanation was given as to why Mr Huynh did not hold registration between 31 December 1997 and 17 March 2003, however, nothing turns on that issue in the proceeding.
[4]Exhibit 1, Certificate of the Delegate of the Chief Executive dated 4 December 2012; issued under Health Practitioner Regulation National Law Act 2009, Schedule, s 244.
At the relevant time, Mr Huynh owned and operated Harrison’s Pharmacy in Ipswich.
Between November 2005 and July 2006, Mr Huynh sold a large number of packets of product containing pseudoephedrine (‘PSE’) to a person identified in the material before the Tribunal as JJP. In a statutory declaration, JJP stated that from December 2005 he estimated that he would have purchased a total of approximately 1,500 packets of PSE from Mr Huynh. JJP would use 20 to 40 stolen licences to facilitate the purchase of 20 to 40 packets of PSE at a time.[5] Mr Huynh would sell JJP the boxes of PSE at an inflated price of approximately twice the usual price for the product.[6]
[5]Statutory declaration of JJP declared on 19 October 2006; Document 2 of the Bundle of Documents tendered by the Board.
[6]Dispensing records from Harrison’s Pharmacy; Document 15 of the Bundle of Documents tendered by the Board.
Further, on 2 October 2006 Mr Huynh sold 10 packets of product containing PSE to an undercover police operative. On that occasion the police operative used 10 drivers’ licences to facilitate the purchase of the PSE from Mr Huynh.
A consideration of the transcript of the covert recording of a conversation between Mr Huynh and the police operative on 2 October 2006 reveals that Mr Huynh was of the understanding that the PSE was being purchased not to meet any therapeutic need, but for the purpose of producing a dangerous drug. For example, in the course of selling the operative, 10 boxes of PSE Mr Huynh said, in response to the operatives enquiry as to whether he would be able to purchase a further 20 boxes the following day, that he (Mr Huynh) thought it would ‘…be a bit hard, yeah, its just in such a short time frame I don’t like to order too much.’ Mr Huynh went on to say:
I am happy to help you out, you and your friends with the pharmacy, but usually ten at a time would be my, you know. So if you want to do it ten at a time rather than twenty at a time.
Later in the conversation in response to the police operative having stated ‘I got to worry blokes like you might dob me in that’s all’, Mr Huynh responded:
You’re taking this for sinus what do I know about anything.
In the context of a discussion with a person who was purchasing 10 boxes of PSE using 10 different licences and in direct response to the suggestion that Mr Huynh, as a pharmacist, might report a person engaged in such a transaction to the authorities, this statement demonstrates Mr Huynh’s understanding at the time that he was facilitating the purchase of PSE by a person without any therapeutic need and who would use the product in the production of a dangerous drug.
Still later in the conversation, the following exchange took place
PO: No problems. You wouldn’t have an idea of how to get the pseudo out of them a bit easier then what I am trying to do though have you? Being a chemist?
AH: I’d have to go, you’re talking about things I don’t really want to know.
PO: Okay, it’s alright.
AH: Yeah but like, if I was you, I’d be using the internet, and that’s probably the only way I’d er…
PO: Mate I’ve been doing it for years, I just thought there might have been an easier way.
AH: Yeah, well I use the internet, I’ve never really trialled it but I use the internet and whatever the easiest method they recommend, I don’t know much more than that.
PO: Oh okay.
AH: And ah …
PO: Oh so you’ve checked the internet too?
AH: I did the cursory thing, I found a couple of recipes but you know, like, to me its ... you either do it big time or you don’t do it at all.
PO: Big time.
AH: Yeah there’s no point in doing it for a couple of hundred bucks sort of thing.
PO: No, that’s, what we’re doing here. Big time, so we can get in and out, and its finished see.
AH: That’s probably the best way. But mate, look I don’t want to know any more.
Regulation 277 of the Health (Drugs and Poisons) Regulation 1996 (‘the Regulation’) provides:
(1)A pharmacist or a person who is approved to dispense a poison under a pharmacist’s direction and personal supervision, (the seller) must not sell an S3 poison unless—
(a) for S3 pseudoephedrine—
(i)the seller is reasonably satisfied the purchaser has a therapeutic need for the S3 pseudoephedrine; and
(ii)if the seller does not know the identity of the purchaser—the purchaser gives the seller an acceptable form of identification; …
It is tolerably clear that the conduct of Mr Huynh in respect of both his sales to JJP and to the police operative was in breach of the requirements of s 277(1) of the Regulation.
The Board filed and relied upon an affidavit of Merrill Elaine Woodhouse a pharmacist and professional adviser to the Board and to the Australian Health Practitioner Regulation Agency in Queensland.[7] In that affidavit, Ms Woodhouse purported to express the opinion that Mr Huynh’s conduct in selling PSE where false identification had been provided related to his knowledge of the mandatory requirement of s 277 of the Regulation. The conclusion drawn by Ms Woodhouse is, in the Tribunals view, correct. However, it is not a matter upon which expert opinion is required. The subject matter of the opinion, namely Mr Huynh’s motivation to conduct himself in the manner in which he did due to his knowledge of the Regulation, is not a matter within some field of specialised knowledge. It is not a matter that a person without instruction or experience in the area of knowledge or human experience would not be able to form a sound judgement on without the assistance of a witness possessing special knowledge or experience in that area. Furthermore, even to the extent that an expert opinion might be able to be expressed on such a matter, Ms Woodhouse’s qualifications, at least so far as disclosed in her affidavit, would not qualify her to express such an opinion.[8]
[7] Affidavit of Merrill Elaine Woodhouse sworn 15 November 2012.
[8]See Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705, [85]; Alder v Australian Securities and Investment Commission (2003) 179 FLR 1, [629]-[632]; Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 6) (Allstate Judgement No 33) (1996) 64 FCR 79, 85.
Similarly, reg 285A of the Regulation relevantly provides:
(1)A person who sells S3 pseudoephedrine to someone (the purchaser) by retail must, at the time of the sale, make a record (a pseudoephedrine sales record) of each of the following particulars of the sale-
(a) the date of the sale;
(b) the brand name and quantity of S3 pseudoephedrine sold;
(c) the purchaser’s name and address;
(d) if the person asks the purchaser to give the person an acceptable form of identification –
(i)the type of document given; and
(ii)the unique number signed to the document by the entity that issued the document
…
The Board again sought to rely upon the purported expert opinion of Ms Woodhouse expressed in her affidavit, that Mr Huynh’s conduct in recording the false identification details related to his knowledge of the requirement of s 285A of the Regulation requiring that details relating to the sale of S3 PSE be recorded, including details of the form of identification provided by the purchaser, if there is a need to establish the purchaser’s identity. Again, with respect, Ms Woodhouse’s conclusions might be accepted as correct, but they are not matters upon which either expert opinion is required or in respect of which Ms Woodhouse would be qualified as an expert to express such an opinion. Again, these are conclusions of fact to be drawn by the Tribunal.
On 29 January 2007, Mr Huynh provided an undertaking to the Pharmacist Board of Queensland. Those undertakings included that he would not practice as a pharmacist until the completion of the Board’s investigation and/or any subsequent disciplinary action, and that he would not apply for registration as a pharmacist in any other jurisdiction during the period of the undertakings. As noted above, Mr Huynh’s registration as a pharmacist ceased on 30 June 2007.
On 17 March 2008, Mr Huynh pleaded guilty in the Supreme Court of Queensland to one count of producing a dangerous drug between 1 January 2004 and 10 October 2006 at Ipswich in the State of Queensland. Mr Huynh was sentenced to imprisonment for a period of two years to be suspended for an operative period of three years after having served six months actual imprisonment.[9]
[9] Exhibit 3: Verdict and judgment record.
Mr Huynh’s conviction of that indictable offence establishes the disciplinary ground under s 124(1)(i) of the Health Practitioners (Professional Standards) Act 1999 (‘the Act’).
Mr Huynh’s conduct as set out above also establishes that he has behaved in a way that constitutes unsatisfactory professional conduct. His professional conduct has been of a lesser standard than that which might reasonably be expected of him by the public or his professional peers.
It is also professional conduct which has demonstrated a lack of adequate judgment or care in the practice of his profession. At the relevant time, Mr Huynh was required to practice pharmacy in accordance with the Pharmaceutical Society of Australia’s Code of Professional Conduct. That code of professional conduct 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 at all times act in a manner which promotes and safeguards the interests and welfare of clients and the community.[10]
[10]Pharmaceutical Society of Australia Code of Professional Conduct, Principle 1, obligation 1.1.
A pharmacist is also obliged to exercise professional judgment to prevent the supply of unnecessary and/or excessive quantities of medicines or other products, particularly those which have a potential for abuse or dependency.[11]
[11]Pharmaceutical Society of Australia Code of Professional Conduct, Principle 1, obligation 1.3.
The code of professional conduct also requires, not surprisingly, that a pharmacist must act according to the laws and regulations governing the profession.[12] A pharmacist is also obliged to maintain a contemporary knowledge of pharmacy practice issues and professional knowledge in order to ensure a high standard of professional competence.[13] This includes an obligation to continually review and maintain a pharmacist’s level of professional knowledge and expertise with the view to improving the quality and standard of pharmaceutical services available to members of the community.[14]
[12]Pharmaceutical Society of Australia Code of Professional Conduct, Principle 2, obligation 2.1.
[13] Pharmaceutical Society of Australia Code of Professional Conduct, Principle 4.
[14]Pharmaceutical Society of Australia Code of Professional Conduct, Principle 4, obligation 4.1.
Although the forgoing provides ample reason for the Tribunal finding that ground 2 of the disciplinary referral is made out, the conduct is also unsatisfactory professional conduct because it is infamous conduct in a professional respect; misconduct in a professional respect; conduct discreditable to the profession of pharmacy; dishonest behaviour in the practice of pharmacy and otherwise improper and unethical conduct. That this is so is established by not only the facts of this case, but by decision of this Tribunal and the former Health Practitioners Tribunal. As was observed by Richards DCJ in Pharmacists Board of Queensland v Lau,[15]
… it is trite to say that a professional who uses his profession to supply drugs to people of whom he is aware are manufacturing illegal substances (sic) commits a very serious breach of the law and a serious breach of his professional standards.[16]
[15](Unreported, Health Practitioner Tribunal, Richards DCJ, 27 October 2003, No D1384 of 2003).
[16]Pharmacists Board of Queensland v Lau (Unreported, Health Practitioner Tribunal, Richards DCJ, 27 October 2003, No D1384 of 2003), Transcript of proceedings dated 27 October 2003, page 4; see also Pharmacy Board of Queensland v Lim [2001] QHPT 008; Pharmacy Board of Australia v Heron [2011] QCAT 424; Pharmacy Board of Australia v Kinsey [2012] QCAT 359; and Pharmacy Board of Australia v Beattie [2012] QCAT 550.
In Pharmacists Board of Queensland v Lim,[17] O’Brien DCJ sitting as the Health Practitioners Tribunal observed in a case in which the registrant had been convicted of three offences of producing methylamphetamine through the sale by the registrant of some 152 boxes of Sudafed, in respect of which the registrant was sentenced to a term of two years imprisonment, that:
In a case such as this where the criminal acts the subject of the charges so relate to the Registrant’s profession it is important in the Tribunal’s view that the order made is one which is calculated to maintain public confidence in the profession and in the system of disciplinary administration. There is also the need to remind other practitioners of the consequences of such transgressions.[18]
[17][2001] HPT 008.
[18]Pharmacists Board of Queensland v Lim [2001] QHPT 008, Transcript of proceedings dated 11 December 2001, page 5.
The Tribunal respectfully concurs with his Honour’s observations.
The Board has proposed draft orders. The primary effect of those proposed orders is that Mr Huynh would not be able to apply for registration as a pharmacist for a period of one year from the date upon which the orders were made.[19] The secondary effect of the proposed orders is that any future registration which may be granted to Mr Huynh would be subject to a number of conditions.[20] Those orders are appropriate.
[19] Health Practitioners (Professional Standards) Act 1999, s 243(2)(b)(ii).
[20] Health Practitioners (Professional Standards) Act 1999, s 243(2)(b)(iii).
The Board has also proposed that the Tribunal make an order to the effect that if Mr Huynh had been registered the Tribunal would have made orders that his registration be cancelled in accordance with s 241(2)(i) of the Act and would have imposed the same conditions upon any future registration which he may be granted.
Section 243(2)(b)(vi) of the Act permits the Tribunal to decide to indicate another form of disciplinary action mentioned in s 241(2) would have been taken if the person were registered. However, such an indication given in the Tribunal’s reasons would not ordinarily be included in the Tribunal’s orders. In any event, this is not an appropriate case for the Tribunal to give such an indication because Mr Huynh has not participated in the proceedings. Although the Board has fairly and appropriately raised certain mitigating factors in favour of Mr Huynh including that he did not come to the attention of the Board at anytime prior to the conduct the subject of the referral; that he provided a timely undertaking not to practice as referred to above; and that a number of supportive character references were tendered on his behalf in the sentencing proceeding in the Supreme Court, the Tribunal has not had the benefit of full submissions in mitigation being made on behalf of Mr Huynh. In those circumstances, it is not appropriate, in this case, for the Tribunal to provide an indication as to what disciplinary action it would have taken under s 241(2) if Mr Huynh had remained registered.
The Board has sought an order that Mr Huynh pay its costs of and incidental to the proceeding in a sum to be agreed or assessed. Such an order is authorised by s 255 of the Act. Such an order is appropriate in this case.
The Board has also sought a non-publication order in respect of certain documents which have been tendered in the course of the proceedings and which relate to the identity of JJP.
Section 66 of the QCAT Act permits a non-publication order to be made by the Tribunal in respect of the contents of a document produced to the Tribunal.[21] Such an order may be made if the Tribunal considers it is necessary, amongst other things, to avoid endangering the physical safety of a person; or to avoid the publication of confidential information or information whose publication would be contrary to the public interest. Section 119 of the Drugs Misuse Act 1986 provides that where an informer supplies information to a police officer in respect of the commission of an offence defined in Part 2 of the Act the informer’s identity at all times shall be kept confidential.
[21] See Queensland Civil and Administrative Tribunal Act 2009, s 66(1)(a).
In the circumstances of this case, the Tribunal considers that it is appropriate to make a non-publication order in respect of:
a) documents 2, 3, 4, 5, 6 and 7 of the bundle of documents tendered by the Board;
b) the Application for Miscellaneous Matters filed by the Board, with leave, on 12 December 2012;
c) submissions on sanction filed by the Board on 12 December 2012; and
d) The transcript of proceedings from the hearing on 12 December 2012.
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