Pharmacy Board of Australia v Ludwick
[2013] QCAT 235
| CITATION: | Pharmacy Board of Australia v Ludwick [2013] QCAT 235 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Ms Kieran Anne Ludwick (Respondent) |
| APPLICATION NUMBER: | OCR219-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 12 December 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Ms Karen Allen |
| DELIVERED ON: | 16 May 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 Ms Ludwick are established and Ms Ludwick has engaged in unsatisfactory professional conduct. 2. Pursuant to section 241(2)(a) of the Act Ms Ludwick is reprimanded. 3. The details of that reprimand be recorded in the Board’s register for 12 months from the date of this decision. 4. Pursuant to section 241(2)(b) the following conditions be imposed on Ms Ludwick’s registration: a) Ms Ludwick must undergo a period of mentoring of not less than two hours per month for 12 months. Such mentoring must focus upon current pharmacy practice having regard to the Standards, the Code and all relevant legislation. b) The first mentoring session must occur in person. c) All but the first mentoring session may occur by telephone, video conference or ‘Skype’ and does not have to be conducted in person. d) Ms Ludwick must nominate for the approval of the Board a registered pharmacist, of appropriate maturity and experience and who must operate a Quality Care Pharmacy Program (QCPP) or equivalent accredited pharmacy, to act as mentor. e) The mentor is to provide a report in writing to the Board at the end of each quarter and at the completion of the mentoring. f) Ms Ludwick must bear any costs associated with mentoring, including the provision of reports to the Board. g) Ms Ludwick is to maintain her memberships with the Pharmaceutical Society of Australia and the Pharmacy Guild of Australia for a period of 12 months. 5. Pursuant to section 242(1)(a) of the Act, the details of the conditions imposed on Ms Ludwick’s registration be recorded on the Board’s register for the period in which the conditions are in force. 6. Pursuant to section 241(3) of the Act, Ms Ludwick must not apply to the Chief Executive, Queensland Health, under the Health (Drugs and Poisons) Regulation 1996 for reinstatement of her unconditional endorsement regarding PSE under sections 171 and 257 of the Regulation for a period of 12 months from the date of this decision. 7. Pursuant to section 255 of the Act, Ms Ludwick pay the Board’s costs of and incidental to these proceedings in the sum as agreed, or if no agreement can be reached then as assessed, but not including the costs of the further submissions on competency of the referral filed 25 January 2013. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the Board resolved to refer the matter under the incorrect act – where the registrant was not prejudiced – where the Board sought compliance with procedural requirements under an enabling act be waived – whether the Tribunal should waive compliance with the procedural requirements under an enabling act PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the Board decided to hold the matter in abeyance before the commencement date – whether the Board had dealt with the matter before the commencement date PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the registrant failed to record the dispensing of pseudoephedrine – where the registrant admitted the behaviour constituted unsatisfactory professional conduct – where the board submitted a suspension was appropriate – where the board sought conditions on registration to include the registrant undertaking an ethics course – where the registrant submitted a reprimand was appropriate – where the registrant submitted an ethics course was unnecessary – whether a suspension is an appropriate sanction – whether an ethics course is an appropriate sanction Health (Drugs and Poisons) Regulation 1996, s 285A Charoentanakorn v Bain [2010] QCATA 7, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Pharmacy Board of Australia represented by Mr Andrew Forbes of DLA Piper Solicitors |
| RESPONDENT: | Ms Kieran Anne Ludwick represented by Mr Andrew Lucich instructed by Meridian Lawyers |
REASONS FOR DECISION
Kieran Anne Ludwick is a pharmacist. She has been since 2006. Ms Ludwick owns and operates the pharmacy in Winton in far western Queensland. She has done so since July 2007. Ms Ludwick has had a long association with the pharmacy. It was formerly owned and operated by her father for many years. Prior to attending university and qualifying as a pharmacist, Ms Ludwick worked in the pharmacy for 14 years.
It is clear that she is well respected, both personally and professionally, in the Winton community.[1]
[1] See the references at Documents 24, 25, 26 and 27 of the Agreed Bundle of Documents.
These proceedings concern the sanction which should be imposed upon Ms Ludwick for conduct which she admits is of a lesser standard than that which may reasonably be expected of her by the public and her professional peers.
Jurisdictional Issues
Two jurisdictional questions have arisen in the proceedings.
First, there is a question as to whether the referral of this matter to the Tribunal by the Pharmacy Board of Australia should proceed as a referral pursuant to s 126(1)(b) of the Health Practitioners (Professional Standards) Act 1999 (Professional Standards Act) or pursuant to s 193(1) of the Health Practitioner Regulation National Law (Queensland) (National Law).
Secondly, there is a question as to the competency of the proceedings, the Board having discovered shortly before the hearing on 12 December 2012 that it had not properly referred the matter to the Tribunal.
The first question is to be determined by whether the Board had started dealing with the matter before the National Law commenced on 1 July 2010.[2]
[2] National Law, s 288.
The Pharmacists Board of Queensland, which was the State board formerly established under the Pharmacists Registration Act 2001, was notified by Queensland Health on 25 February 2010 about matters concerning the dispensing of medicines containing pseudoephedrine (PSE) by Ms Ludwick. In the following month that board accepted the notification and resolved to hold the matter in abeyance until administrative action taken by Queensland Health had been resolved.
In Pharmacy Board of Australia v Chung[3] the Tribunal found that such a step was sufficient to demonstrate that the board was dealing with the matter. Therefore, as that occurred prior to 1 July 2010, the Professional Standards Act applies.[4]
[3] [2012] QCAT 483.
[4] National Law, s 289.
Further, on 9 June 2010, the then Pharmacists Board of Queensland resolved to take disciplinary proceedings itself against Ms Ludwick under the Professional Standards Act.[5] That too would amount to the former Board having dealt with the matter before the commencement of the National Law.
[5] Professional Standards Act, s 126(1).
Notwithstanding that state of affairs; the referral having been stated to have been made under the Professional Standards Act; and that the Pharmacy Board of Australia’s submissions filed on 16 July 2012 were directed towards the Professional Standards Act, in supplementary submissions filed on 26 November 2012, the Board submitted that it had only dealt with the matter by its resolution of 25 March 2011 to refer it to the Tribunal. In those submissions the Board said that the National Law was thus applicable. Somewhat surprisingly, no substantive submissions were then made which were directed to the National Law.
In any event, it now seems common ground that the matter is one to which the Professional Standards Act applies. Helpfully, in the written submissions filed on behalf of Ms Ludwick, she conceded that her conduct amounted to either unsatisfactory professional conduct under the Professional Standards Act, or unprofessional conduct under the National Law.[6]
[6] Written submissions on behalf of the registrant on sanction filed 6 November 2012.
The second jurisdictional question concerned whether or not the proceedings were competent given the late discovery by the Board that its purported referral of the matter to the Tribunal in March 2011 was defective. Particularly, the Board did not resolve to refer the matter under the Professional Standards Act.[7]
[7]Submissions on competency of referral and proceeding filed 25 January 2013 at paragraph 3.
At the hearing on 12 December 2012 the parties were directed to make further written submissions on these jurisdictional issues.[8]
[8]Those submissions were filed by the Board and Ms Ludwick, respectively, on 25 January 2013 and 11 February 2013.
Having considered the Board’s submissions on the matter, Ms Ludwick takes no issue with the manner in which the matter was referred to the Tribunal.
The Board concedes that it has not complied with the procedural requirements for the commencement of proceedings in the Tribunal. But clearly there is no prejudice. It is a matter in which compliance with those procedural requirements should be waived pursuant to s 61(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009. The Board’s resolution of 10 December 2012 to refer the matter should be deemed compliant with s 126(1)(b) of the Professional Standards Act.[9]
[9] Compare Charoentanakorn v Bain [2010] QCATA 7 at [6] – [7] per Wilson J, President.
Ms Ludwick’s conduct
On 30 September 2009 Queensland Health conducted an audit of the pharmacy for the period between 1 July 2007 and 30 September 2009. The audit revealed that in that period the pharmacy had obtained 1,409 units of PSE from wholesale suppliers. The audit further found that 436 sales of PSE had been recorded in dispensary data over the period.
The Board describes the balance, 973 units,[10] as being unaccounted for. This is an inappropriate description. As Ms Ludwick submits, because no stock on hand was counted by Queensland Health in conducting its audit, no accurate figure of “unaccounted for” PSE stock can be calculated. On the assumption that there may have been 200 units on hand at the time of the audit, Ms Ludwick submits that the number of unaccounted for units is more likely to be in the order of 772. This has the effect of reducing the percentage of unaccounted for stock from 69% to about 50%.
[10]It seems as though this figure has been incorrectly stated as 873 units in the supplementary statement of agreed facts.
The Tribunal notes that a “unit” is a packet of product. This unit of measurement discloses neither the quantity nor the dosage of PSE products in the packets. This should, therefore, be borne in mind when other decided cases are looked to as comparators. Referring to the number of “units” sold in one case as being more or less then the “units” sold in another case may be to give an altogether false understanding of the volume of PSE, as opposed to the volume of sales, made in either instance.
PSE is a substance prone to misuse or abuse. It is used in the manufacture of methamphetamine. For this reason, it was, in 2006, rescheduled to be a Schedule 3 Pharmacist only poison under the Health (Drugs and Poisons) Regulation 1996 (the Regulation).
Part of the legislative regime intended to limit the misuse and abuse of PSE is established by s 285A of the Regulation. It relevantly provided:
(1) A person who sells S3 pseudoephedrine to someone (the purchaser) by retail must, at the time of the sale, make a record of each of the following particulars for 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 a document evidencing the purchaser’s identity—the type of document given.
…
(2) The record may be kept in the way the person considers appropriate, including, for example, in an electronic form.
(3) The person must keep the record for at least 2 years after the date of the sale.[11]
[11]Section 285A as in force from reprint 4J 2rv (2002 SL No. 361), commenced 1 January 2003, amended in reprint 9F (2009 SL No. 293) commenced 11 December 2009.
Both the failure to make the record and to maintain it for the prescribed time are offences.
Ms Ludwick admits that she failed to comply with the obligations imposed by s 285A of the Regulation.
In an affidavit sworn on 22 February 2012, Ms Ludwick deposed to the practice of the pharmacy during the relevant period as having been that all products containing PSE were sold and labelled under the direct supervision of a pharmacist. She deposed to her understanding that this was sufficient. She further deposed to the fact that whilst sales of PSE medications were recorded in the dispensing software, this was not always the case when the customer was a local person. In all cases, however, a label was generated and attached to the product.
She further deposed to never having sold items containing PSE when she suspected that they were being used for non-therapeutic purposes.
She described her failure to record all PSE items as being inadvertent and due to her misinterpretation of the Regulation. In my view, the failure cannot be appropriately described as inadvertent. It was not as though she intended to record the sales but for some reason did not. Nevertheless it was because she did not understand the requirements of the Regulation.
Notwithstanding her sworn evidence of those matters, the Board submitted, without contrary evidence and without wishing to cross examine Ms Ludwick, that the evidence should not be accepted.
In that regard, the Board sought to rely upon an opinion expressed by another pharmacist, Mr Brett Simmonds, in a report dated 26 May 2012. Mr Simmonds’ opinion was sought as to whether Ms Ludwick’s assertion that she had a “genuine misunderstanding” of s 285A of the Regulation relieved her of her obligation to properly record sales of PSE. Not surprisingly, Mr Simmonds’ opinion, expressed in some detail, was that it did not relieve her of that obligation.
With respect, Mr Simmonds’ opinion on that matter is entirely irrelevant.
First, Ms Ludwick in no way asserts that her misunderstanding relieved her of her obligation. She candidly concedes that it did not.
Secondly, even if she had made such an assertion, it would be a matter for the Tribunal to determine and not one which required expert opinion.
Ms Ludwick by her evidence does not seek to excuse her conduct; she merely seeks to offer an explanation for it. That explanation may be accepted or rejected by the Tribunal. If accepted, then it can be taken into account in considering an appropriate response by way of sanction.
Here, there seems no reason not to accept it. It is not what was required by the Regulation; but that is admitted. It is less than the standard which the public and her professional peers could reasonably expect of her and it is thus unsatisfactory professional conduct; but that too is admitted. It is, nonetheless, the explanation.
In this case, there is no allegation that Ms Ludwick dispensed PSE to persons who did not have a therapeutic need. Notwithstanding that, and the concession by the Board that such an allegation could not be supported on the evidence,[12] Mr Simmonds’ opinion was sought on that issue also. His opinion is, again, irrelevant.
[12] [20.6] of the Board’s submissions on sanction filed 16 July 2012.
The Board submits that whilst it cannot establish unsatisfactory professional conduct in that regard given the absence of recording of sales, neither can Ms Ludwick support her submission that she never dispensed PSE in circumstances where there was no genuine therapeutic need.[13] That submission of the Board must be rejected. Ms Ludwick can support her contention; and she has. She has done so by sworn evidence upon which she has not been cross examined and which has not been controverted with other evidence. In the absence of reasons for not accepting such evidence, which are absent in this case, the Tribunal is entitled to act upon it. There is no reason for the Tribunal to doubt Ms Ludwick’s credit. In documents tendered by consent others have spoken of her good character.
[13] [20.7] of the Board’s submissions on sanction filed 16 July 2012.
It should be noted that the audit of Queensland Health also established that only one PSE sale had been recorded in project STOP. Project STOP is a real time electronic recording system which assists pharmacists to avoid dispensing to customers in circumstances where there may be a misuse or abuse of PSE. Given that there is an absence of any evidence that purchasers of PSE from the pharmacy may have been abusing or misusing the PSE products, this failure to record in project STOP, which was not compulsory at the time,[14] is not an issue of great significance in this particular matter.
[14]The requirement for pseudoephedrine sales records to be kept as an electronic record accessible online was introduced on 29 March 2010; s 285A of the Health (Drugs and Poisons) Regulation 1996 as amended by 2009 SL No. 293.
On 3 September 2012, the Board filed an amended referral to include an additional allegation against Ms Ludwick for dispensing PSE in the absence of an approval from Queensland Health.
On 3 June 2010 Ms Ludwick’s endorsement pursuant to the Regulation, to obtain, dispense, sell, possess or otherwise deal with PSE to the extent necessary to practice pharmacy, was cancelled. On 6 July 2010, Ms Ludwick was granted a conditional approval to obtain, posses, dispense or supply PSE for a period of two (2) years. That approval expired on 6 July 2012. A subsequent conditional approval was issued on 21 August 2012.
Between the expiration of the first conditional approval and the granting of the second conditional approval, Ms Ludwick dispensed PSE of 45 occasions.
Ms Ludwick’s conditional approval was subject to a condition that she forward, on the last day of each month, to the Drugs, Poison Policy and Regulation Unit the records she was required to keep in relation to the sale of PSE under the Regulation. Ms Ludwick complied with that condition, even after expiration of the first conditional approval. Indeed, it seems that her compliance with that requirement is what alerted Queensland Health and the Board to her dispensing PSE without approval. Upon the matter being drawn to her attention, she immediately, through her solicitors, wrote to the solicitors for the Board explaining that it had been a genuine error and misunderstanding on her part.[15]
[15] See letter of 16 August 2012, Exhibit B to the affidavit of Kieran Ludwick filed 17 October 2012.
On the hearing of the matter in the Tribunal, the Board’s solicitor frankly conceded that this was a matter of inadvertence on the part Ms Ludwick. Notwithstanding that, the solicitor for the Board urged upon the Tribunal that this was an aggravating factor and that this matter should be considered as a breach of condition case.
Sanction
The Board submits that this is a matter in which a period of suspension for four (4) months is warranted with that suspension itself being suspended for an operational period of twelve (12) months.
Ms Ludwick submits that a reprimand would be an appropriate sanction.
Both the Board and Ms Ludwick agree that conditions ought to be imposed upon her registration. They are in agreement as to what those conditions should be, except for one proposed condition requiring her to undertake ethical training.
In the Tribunal’s view, this is a case where a reprimand would be an appropriate sanction.
The Board referred to a number of decisions of the Tribunal and the Queensland Health Practitioners Tribunal which, it said, supported its contention that a suspension was warranted in this case.
In Pharmacy Board of Australia v Heron[16], the registrant’s registration was suspended for three months, wholly suspended for a period of 12 months.[17] In that case, however, there was an admission by the registrant that he had dispensed PSE beyond the extent necessary to practice pharmacy. There is no such admission in this case. Indeed, there is no such allegation. There is also evidence to the contrary. Furthermore, in Heron’s case, there had been a number of sequential sales of PSE at the pharmacy. That is an element also lacking in this case.
[16] [2011] QCAT 424.
[17]The Board in its submissions on sanction at [36.1] incorrectly stated the period of suspension was wholly suspended for 18 months.
Pharmacy Board of Australia v Donnelly[18] and Pharmacy Board of Australia v Booy[19] were both cases involving dispensing of anabolic steroids. In Donnelly’s case, the pharmacist knew, or ought to have known, the quantity and combinations of the restricted drugs she dispensed to customers were not necessary for a therapeutic purpose. She agreed that 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.[20] Ms Donnelly’s registration was suspended for six months wholly suspended for an operational period of twelve months.
[18] [2011] QCAT 584.
[19] [2011] QCAT 522.
[20] Supra at [6].
Similarly, in Booy, the pharmacist dispensed three different types of anabolic steroids to a patient in quantities and combinations which were not for a therapeutic purpose. His registration was suspended for a period three monthly wholly suspended for an operational period of twelve months.
In my view, those features of both Donnelly and Booy to which I have referred distinguish them from the present matter and put them in a more serious category.
In the Pharmacists Board of Queensland v Coffey[21] the registrant had failed to keep records relating to almost 1,000 packets of PSE sold from his pharmacy. He was also convicted of 16 offences against the Regulation when he sold PSE in multiple packets to undercover Police without keeping records. Again, this is a feature of Coffey’s case which distinguishes the conduct as considerably more serious than that of Ms Ludwick. Mr Coffey’s registration was suspended for a period of nine months, wholly suspended after serving three months, for a period of twelve months.[22]
[21] [2008] QHPT 14 October 2008.
[22]The Board in its submissions on sanction at [36.5] incorrectly stated the registrant was suspended for a period of 3 months.
In making its submissions in favour of a period of suspension the Board acknowledges that Ms Ludwick has not been charged with any offences under the Regulation. The Board went on to submit that the sanctions imposed in the matters of Pharmacy Board of Australia v Mikhail[23] and Coffey were
…arguably lower than what was warranted in the circumstances as the Board took into account the criminal convictions when submitting an appropriate sanction. The Tribunal also took into account the fact of the prior criminal proceedings when considering sanction. This element is absent here.[24]
[23] [2010] QCAT 621.
[24] Board’s submissions on sanction filed 16 July 2012 at [37].
The effect of the Board’s submissions is that persons whose conduct has not resulted in criminal convictions might have, because of that, stronger disciplinary sanctions imposed upon them, than those whose conduct has resulted in criminal conviction.
I reject that submission. It tends to conflate the nature and purpose of disciplinary proceedings and disciplinary action with that of criminal proceedings. The purposes of disciplinary proceedings and action are to protect the public; to uphold the standards of practice within the health profession; and to maintain public confidence in the profession.[25] Such proceedings are not punitive.[26]
[25] Section 123, Professional Standards Act.
[26] Ooi v Medical Board of Queensland [1997] 2 Qd R 176 at 177.
In some cases the fact that a registrant has been out of the profession for a particular period of time because of their having been charged and convicted, and perhaps incarcerated, may be a consideration relevant to the sanction necessary to achieve the purposes of the disciplinary action. It is only to that extent that it could be said that criminal proceedings were taken into account by the Tribunal in those earlier cases referred to by the Board in its submissions.
It is an entirely different proposition to put that the sanction was lower than that warranted in the circumstances. It is also incorrect to say, as the Board’s submissions appears to, that the fact that there has been no criminal conviction for which the registrant has been punished means that the question of sanction should be approached as though there was an absence of a mitigating factor.
In contending for a reprimand, Counsel for Ms Ludwick submits that a reprimand does not represent in this, or in any case, a mere slap over the wrist. In Peeke v Medical Board of Victoria,[27] it was observed that a reprimand was a serious form of censure and condemnation and “certainly does not trivialise a serious lapse of professional standards, and has the potential for serious adverse implications for the medical practitioner”.[28] Similarly, in Medical Board of Australia v Jones,[29] Judge Kingham, Deputy President, said of the sanction of reprimand that it was not trivial as it was a public denunciation of the professional’s conduct which is recorded on the public register of practitioners. Section 225(j) of the National Law requires a national register to include the fact that the practitioner has been reprimanded.
[27] Unreported, Supreme Court of Victoria, No 10170 of 1993, 19 January 1993.
[28] Cited with approval in Medical Board of Australia v Jansz [2011] VCAT 1026 at [373].
[29] [2012] QCAT 362 at [14].
In Pharmacy Board of Australia v Kinsey,[30] the registrant was reprimanded where he had been found to have engaged in unprofessional conduct under the National Law through having failed to record the sale of 1,232 units of PSE over a period of a little more than 2 years. Inadequate records were kept concerning a further 236 units of PSE. In addition to the reprimand, the registrant was required to provide undertakings that he would maintain membership of two professional associations; engage in mentoring; increase his continuing professional education. The Tribunal also ordered that he not seek the return of an unconditional endorsement from Queensland Health for twelve (12) months.
[30] [2012] QCAT 359.
In Pharmacy Board of Australia v Chung[31], the registrant was found to have engaged in unsatisfactory professional conduct under the Professional Standards Act through having failed to record sales of PSE and also having, on two occasions, dispensed medication to customers on the prescription of a general practitioner rather than of a specialist as required. The unrecorded PSE was approximately 1,282 products over a period of about 1.75 years. A reprimand was imposed upon agreement between the parties. Conditions were imposed on his registration.
[31] [2012] QCAT 483.
In my view, the conduct of Ms Ludwick, in so far as comparisons between cases can be made, is more comparable to that involved in the cases of Chung and Kinsey than those upon which the Board has sought to rely.
In my view, Chung and Kinsey support the view that a reprimand is an appropriate sanction in this case.
As referred to above, one condition proposed by the Board is opposed by Ms Ludwick. That is the condition that she be required to complete a tertiary module in ethical decision making. She contends that is not warranted in this case. She says that it is not warranted because this case, unlike others in which such a condition has been ordered, does not involve unethical decision-making on her part.
I agree with that contention. As noted above, this is not a case in which there is any evidence of inappropriate dispensing by Ms Ludwick. The only evidence is that she did not dispense in circumstances where she suspected that the PSE might be being sought for a non-therapeutic purpose. That evidence does not support the requirement for a course in ethical decision making to be taken. Rather, it suggests that it is unnecessary.
The Board submitted that such courses take into account knowledge and appreciation of the law. There is nothing before the Tribunal as to the content of such a course. In any event, the Tribunal is satisfied from the evidence that Ms Ludwick is now aware of the legislative requirements imposed upon her and that she has otherwise taken extensive steps towards her professional development in that regard.
In the circumstances, the Tribunal does not propose to impose a condition requiring the ethical decision making module to be undertaken.
Costs
Ms Ludwick has agreed that she should pay the costs of the Board of the proceedings generally. However, she submits she should not have to pay the Board’s costs associated with the preparation of the further submissions on competency of the proceedings which were filed on 25 January 2013.
Those further costs were incurred as a consequence of the defect in the Board’s referral of the matter to the Tribunal. Ms Ludwick should not have to bear the costs of the Board’s error. The costs which shall be awarded against Ms Ludwick will exclude those costs.
Order
The Tribunals order shall be:
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 Ms Ludwick are established and Ms Ludwick has engaged in unsatisfactory professional conduct.
2. Pursuant to section 241(2)(a) of the Act Ms Ludwick is reprimanded.
3. The details of that reprimand be recorded in the Board’s register for 12 months from the date of this decision.
4. Pursuant to section 241(2)(b) the following conditions be imposed on Ms Ludwick’s registration:
a)Ms Ludwick must undergo a period of mentoring of not less than two hours per month for 12 months. Such mentoring must focus upon current pharmacy practice having regard to the Standards, the Code and all relevant legislation.
b)The first mentoring session must occur in person.
c)All but the first mentoring session may occur by telephone, video conference or ‘Skype’ and does not have to be conducted in person.
d)Ms Ludwick must nominate for the approval of the Board a registered pharmacist, of appropriate maturity and experience and who must operate a Quality Care Pharmacy Program (QCPP) or equivalent accredited pharmacy, to act as mentor.
e)The mentor is to provide a report in writing to the Board at the end of each quarter and at the completion of the mentoring.
f)Ms Ludwick must bear any costs associated with mentoring, including the provision of reports to the Board.
g)Ms Ludwick is to maintain her memberships with the Pharmaceutical Society of Australia and the Pharmacy Guild of Australia for a period of 12 months.
5. Pursuant to section 242(1)(a) of the Act, the details of the conditions imposed on Ms Ludwick’s registration be recorded on the Board’s register for the period in which the conditions are in force.
6. Pursuant to section 241(3) of the Act, Ms Ludwick must not apply to the Chief Executive, Queensland Health, under the Health (Drugs and Poisons) Regulation 1996 for reinstatement of her unconditional endorsement regarding PSE under sections 171 and 257 of the Regulation for a period of 12 months from the date of this decision.
7. Pursuant to section 255 of the Act, Ms Ludwick pay the Board’s costs of and incidental to these proceedings in the sum as agreed, or if no agreement can be reached then as assessed, but not including the costs of the further submissions on competency of the referral filed 25 January 2013.
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