Pharmacy Board of Australia v Naghdi
[2012] QCAT 675
| CITATION: | Pharmacy Board of Australia v Naghdi [2012] QCAT 675 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Sara Naghdi (Respondent) |
| APPLICATION NUMBER: | OCR279-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 19 September and 28 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, A/Deputy President Assisted by: Bronwyn Herbertson Warren Blee Kerrie Kensell |
| DELIVERED ON: | 20 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 196(1) of the Health Practitioner Regulation National Law Act 2009 (“National Law”), the Tribunal finds that the Registrant has behaved in a way that constitutes professional misconduct. 2. Pursuant to section 196(2)(d) of the National Law, the Registrant’s registration be suspended for a period of six months. The suspension is to commence 7 days from the date of this decision. 3. The above suspension is to be suspended after the Registrant has served 1 month for an operational period of 12 months during which time the Registrant must not be the subject of any disciplinary action by the Board or the Tribunal. 4. Pursuant to section 196(2)(b) of the National Law, the following conditions be imposed on the Registrant’s registration following the period of suspension: (a) The Registrant is to undergo a period of three months supervised practice in an accredited pharmacy for not less than fifty hours per month for three months. (b) Upon completion of the period of supervision in condition (a) above, the Registrant is to undergo a period of mentoring for not less than two hours per month for 12 months. (c) The mentoring must be face to face and focus on: (i) Ethical decision making and dispensing, including the need to counsel clients on a therapeutic use of Schedule 2, 3 and 4 drugs. (ii) Strategies to resist pressure to dispense, whether the pressure is exerted by patients, prescribing doctors or employers. (iii) The ability to communicate effectively with other health professionals regarding appropriate dispensing of prescriptions. (d) For the purposes of conditions (a) and (b) above, the Registrant is to nominate a supervisor/mentor for the approval of the Board, who must be a practising pharmacist and senior to the Registrant in age and experience. (e) The mentor must provide a report in writing to the Board at the end of each quarter and at the completion of the mentoring period. (f) In addition to completing the mandatory Continuing Professional Development (CPD) requirements set out in the Board’s registration standard for CPD, the Registrant 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 12 months. (g) The Registrant is to retain membership of the Pharmaceutical Society of Australia for two years. (h) The Registrant is only to practice her profession within pharmacies accredited with the Quality Care Pharmacy Program (QCPP) or equivalent for a period of three years. (i) The Registrant is to be responsible for paying any costs associated with these conditions. 5. The details of the conditions imposed upon the Registrant’s registration be recorded on the Board’s register for the period the conditions are in force. 6. Pursuant to section 116(3) of the National Law, the review period for the conditions imposed on the Registrant’s registration is three years. 7. The Registrant is not permitted to apply to the Chief Executive, Queensland Health under the Health (Drugs and Poisons) Regulation 1996 for reinstatement of her unrestricted endorsement for PSE until she has complied with the conditions placed on registration under Order 4(a), (b) and (f). 8. Pursuant to section 195 of the National Law, the Registrant pay the Board’s costs of and incidental to these proceedings in a sum to be agreed or assessed. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHRMACUETICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – MISCONDUCT IN A PROFESSIONAL RESPECT – where the Registrant inappropriately dispensed pseudoephedrine – where the Registrant admitted the conduct –whether the Registrant’s conduct amounted to professional misconduct or unprofessional conduct Health (Drugs and Poisons) Regulation 1996, rr 277, 285A Medical Board of Australia v Grant [2012] QCAT 285 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Preston of counsel instructed by DLA Piper Australia |
| RESPONDENT: | Mr Tait of counsel instructed by Stoddart Legal |
REASONS FOR DECISION
These disciplinary proceedings against Ms Naghdi, a pharmacist, involve the dispensing of pseudoephedrine (‘PSE’) in large quantities and at a frequency such that she knew that or should have known the pharmacy was being targeted by drug runners.
PSE is a drug prone to abuse. It is known to be targeted for non therapeutic purposes, namely, in the illegal manufacture of methamphetamines. As a consequence a national strategy has been adopted by health regulators to reduce legitimate access to PSE.[1]
[1]National Strategy to Prevent the Diversion of Precursor Chemicals into Illicit Drug Manufacture CHCSEEHTTP://>
Pharmacists are required to be satisfied of a therapeutic need for PSE before it can be sold and knowledge of, or proof of, the purchaser’s identity is also required.[2] Records of sale are required to be retained.[3]
[2] Health (Drugs and Poisons) Regulation 1996, r 277.
[3] Health (Drugs and Poisons) Regulation 1996, r 285A.
The Board alleges that Ms Naghdi engaged in conduct that amounted to professional misconduct under the Health Practitioner Regulation National Law Act 2009 (the ‘National Law’) and Ms Naghdi does not oppose that finding.
Ms Naghdi is 32 years of age and was registered as a pharmacist in 2006. At the relevant time she worked at the Wynnum Plaza Pharmacy, at first on a part time basis then as manager. She is married (although now separated) to a Mr Tavakol, the owner of the pharmacy. Mr Tavakol is also the subject of separate disciplinary proceedings. Ms Naghdi now lives and works in Sydney.
The dispensing of the PSE was revealed through actions taken by Qld Health in June/July 2010. Qld Health officers engaged in covert purchases of PSE and an audit of the pharmacy’s dispensing data for the period 1 January 2008 to 31 March 2010 to assess the pharmacy’s compliance with the regulations and obligations relating to the sale of PSE.
The parties have agreed on the following facts:
§During the audit period, 11,799 units of PSE were dispensed.
§Customers attended the pharmacy in groups all within minutes of each other to purchase PSE.
§Customers attended the pharmacy in a manner consistent with drug running.
§Ms Naghdi knew or ought to have known that the pharmacy was being targeted by drug runners.
§Ms Naghdi continued dispensing significant amounts of PSE to customers in these circumstances.
§As the pharmacist working fulltime at the pharmacy she was responsible for the sale of PSE in the pharmacy.
The following sales were identified from the dispensing records:
§60 packets of PSE over a period of 35 days were dispensed by the pharmacy to customer EO including the dispensing by Ms Naghdi of 30 packets on a single day.
§The pharmacy dispensed 195 packets of PSE over 370 days to customer KM including dispensing by Ms Naghdi of 30 packets on a single day.
§Ms Naghdi dispensed 55 packets of PSE to customer JP over 122 days.
§Ms Naghdi dispensed 99 packets of PSE over a 134 days to customer WL as follows:
5 April 2010 – 33 and 1/3 packets
28 May 2010 – 33 and 1/3 packets
8 June 2010 – 33 and 1/3 packets
§Ms Naghdi dispensed 90 packets of PSE over 417 days to customer CB including 2 instances of 30 packets on a single day.
§There were 11 occasions of covert sales from the pharmacy to officers of Queensland Health. Ms Naghdi was responsible for 6 of those sales as follows:
24 June 2010 – 1 packet to JB
29 June 2010 – 1 packet to GV
29 June 2010 – 1 packet to AT
9 July 2010 – 2 packets to JB in 2 transactions of 1 packet each
9 July 2010 – 1 packet to GV
§The second dispensing to JB and the dispensing to GV on 9 July 2010 occurred in circumstances where JB and GV entered and left the pharmacy together and they made their purchases within a few minutes of each other.
§On none of the 11 occasions was there any attempt by Ms Naghdi to assess whether or not there was a therapeutic need for the dispensing of the PSE.
In September 2010 Qld Health cancelled Ms Naghdi’s endorsement to deal with drugs containing PSE.
Was this conduct professional misconduct?
Under the National Law professional misconduct includes:
(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; or
(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.[4]
[4]Health Practitioner National Law Act 2009, Schedule, s 5 definition of Professional Misconduct.
The dispensing practices of Ms Naghdi identified above were in breach of the Health (Drugs and Poisons) Regulation 1996 (the ‘Regulation’), the relevant Standards[5] and the Code of Conduct.[6]
[5]Professional Standards of the Pharmaceutical Society of Australia version 3 as in force 2006 (under the Health Practitioners (Professional Standards) Act 1999) and from 2010 version 4.
[6] Pharmaceutical Society of Australia Code of Professional Conduct.
The Standards require that pharmacists provide professional services with the primary concern being the health and wellbeing of the consumer and the community.[7] They must promote the judicious, appropriate, safe and effective use of medicine and be aware of trends and patterns of use and commonly misused substances.[8]
[7]Health Practitioners (Professional Standard) Act 1999, standard 1 criteria 2 of the standard 1 criteria 5 of the Health Practitioner Regulation National Law Act 2009.
[8] Health Practitioners (Professional Standard) Act 1999, standard 1 criteria 5.
The code of conduct requires a pharmacist to exercise professional judgment to prevent the supply of products likely to constitute an unacceptable hazard to health or supply of unnecessary and/or excessive quantities of medicine particularly those which have a potential for abuse or dependency.[9]
[9]Pharmaceutical Society of Australia Code of Professional Conduct Principal 1 obligation 1.1 and 1.3.
Pursuant to the Regulation pharmacists can not sell PSE unless they were satisfied that the purchaser had a therapeutic need for the PSE.[10]
[10] Reg 277 Health (Drugs and Poisons) Regulation 1996.
The dispensing of PSE by Ms Naghdi in the volumes and frequency referred to above was in breach of these Codes, Standards and Regulation.
In all cases Ms Naghdi concedes that no therapeutic need was established for the sale of PSE. There was little or no involvement in the sale by the pharmacist and Ms Naghdi conceded that she knew the pharmacy was being targeted by drug runners.
Ms Naghdi has engaged in unprofessional conduct. The question then is whether the unprofessional conduct was such that it was conduct substantially below the standard, so as to be professional misconduct.
The frequency and volume of the inappropriate dispensing in circumstances where she knew that the pharmacy was being targeted by drug runners is of particular concern when PSE is known to be converted into methamphetamines. The possible consequences, in those circumstances, are not just to the individual purchaser but the community at large.
The Board provided an expert report from pharmacist Mr Brett Simmonds. He commented in his report that
…dispensing PSE in significant amounts to customers she knew, or ought to have known, were possible drug runners posed significant risk to community health. If they were not being diverted then the quantity of PSE posed a significant health risk to the individual.[11]
[11]Report of Brett Simmonds dated 3 August 2012, Document 35, Bundle of agreed documents.
There have been a number of referrals to the Tribunal by the Pharmacy Board for breaches of the Regulation in dispensing PSE. The most common breach has been a failure to record the sales in accordance with the Regulation.[12]
[12]See Pharmacy Board of Australia v Fitzpatrick [2012] QCTA 552; Pharmacy Board of Australia v The Registrant [2012] QCAT 515; Pharmacy Board of Australia v Chung [2012] QCAT 483; Pharmacy Board of Australia v Kinsey [2012] QCAT 359.
The disciplinary findings in those cases have been of unsatisfactory professional conduct (being conduct of a lesser standard) under the Health Practitioners (Professional Standards) Act 1999 or unprofessional conduct under the National Law. This matter is more serious. The volume of dispensing in inappropriate circumstances was extreme. The pharmacy was the highest seller of PSE in Queensland and Australia for the period January 2010 to December 2010.[13]
[13] Document 5, Bundle of agreed documents.
The amount of PSE dispensed by the pharmacy was double the amount of the second highest dispensing pharmacy.[14]
[14] Document 5, Bundle of agreed documents.
Mr Simmonds in his report commented on one dispensing incident of 60 packets over 35 days, ‘in my experience of 30 years of pharmacy I have never seen a prescription for such a large quantity of PSE at the one time.’[15]
[15]Report of Brett Simmonds dated 3 August 2012, Document 35, Bundle of agreed documents.
Mr Simmonds was of the view that Ms Naghdi’s conduct was substantially below the standard. He said
Ms Naghdi’s conduct in dispensing PSE in volumes and frequency that is far in excess of normal pharmaceutical practice, and in dispensing PSE to employees of Queensland Health without determining any therapeutic need or involvement of a pharmacist, and continuing to dispense PSE in significant amounts to customers in circumstances which she knew or ought to have known that the pharmacy was being targeted by drug runners, has breached many of her professional obligations. Ms Naghdi’s conduct is substantially below the standard expected of a reasonable pharmacist.
The Tribunal agrees and finds that she has behaved in a way that constitutes professional misconduct.
Sanction
Prior to the hearing of this matter on the papers the parties submitted a joint position on sanction. The proposed sanction was that Ms Naghdi’s registration would be suspended for 6 months if she failed to comply with certain orders, or was the subject of any further disciplinary proceedings, and that conditions be placed on her registration including undergoing a period of mentoring, completing CPD points and retaining membership of professional associations.
The Tribunal formed the view that the proposed sanction did not achieve the objectives of the legislation, in particular, the protection of the public.
The purpose of a sanction is not punitive. It is to maintain professional standards and public confidence in the profession and to protect the public. The Tribunal has previously commented that
an important element in maintaining standards and confidence in the profession is making orders that appropriately reflect the Tribunal’s censure of the unprofessional conduct.[16]
In this case because of the volume and frequency of the dispensing and in circumstances where the risk of harm to the public was evident, the Tribunal considered it was appropriate for a period of suspension to be imposed. This would present an indication of the seriousness with which the conduct was viewed by the Tribunal.
[16] Judge Kingham in Medical Board of Australia v Grant [2012] QCAT 285, [51].
The parties were invited to make submissions on a sanction that included a 6 month suspension suspended after 3 months and a period of supervised practice. The parties’ submissions evidenced a dispute about sanction and as such an oral hearing was held.
Counsel for Ms Naghdi said she accepted that a period of actual suspension was appropriate in the circumstances but requested the period of suspension be suspended after 1 month. The basis for the request was that her current employer had indicated that if the period of suspension was only 1 month she could retain her position, however, if it were to be 3 months she would lose her position. She also presented written evidence as to her financial position which showed she has little in the way of assets and minimal excess income after expenses. She also produced affidavit material from pharmacists which indicated, not unsurprisingly, that they would give preference to employing a pharmacist whose registration had not been suspended.
There are some mitigating factors in Ms Naghdi’s favour:
§She had never come to the attention of the Board at any time prior to the referral.
§She was relatively young and inexperienced at the time.
§She has not contested the referral and from the outset conceded that she had engaged in inappropriate dispensing in not establishing a therapeutic need.
§She maintains she is now aware of her responsibilities and is determined to act appropriately.
Ms Naghdi gave oral evidence at the hearing and confirmed her acknowledgement of her inappropriate dispensing. She said she now realised the importance of properly assessing therapeutic need before dispensing and that it is not sufficient to simply establish that the customer has previously used the medicine.
There are also a number of aggravating factors:
§Ms Naghdi knew that the pharmacy was being targeted by drug runners. In her interview with a Queensland Health investigator[17] she was asked about whether she was concerned that although the pharmacy was being targeted by drug runners she continued dispensing in those circumstances. She said:
Yes… I think in just the past few months, it became, like, a problem, where we’ve seen really, like, increased amount of people.
…this is a busy pharmacy… you know, like I can’t… we can’t spend the whole day just arguing with these people…”
§Ms Naghdi was personally responsible for dispensing over 40% of the total PSE during the period 1 January 2008 to July 2010.
§She was manager of the pharmacy and therefore had responsibility for maintaining and upholding the pharmacy standards.
§Queensland Health took immediate action to cancel her endorsement to deal with drugs and medicine containing PSE. As submitted by the Board[18] this action ‘may reflect upon the scale of the Registrant’s departure from her professional obligation.’ It certainly represents action taken because of the extraordinary high sales of PSE.
[17] Transcript of interview dated 9 July 2010, Document 6, Bundle of agreed documents.
[18] Board submission on sanction dated 4 September 2012, [35].
The Tribunal finds that 6 months supervision suspended after 1 month is appropriate.
It is apparent that Ms Naghdi was faced with difficult customers and she did not possess the skills necessary to deal with them and refuse their requests. She also apparently did not have the skills to confront the doctors who had prescribed the medication and question the therapeutic need for the prescription.
This is evidenced in her responses in the interview with Queensland Health.
She said on being asked about establishing therapeutic need:
Well, we talked to them, and, you know, like we get abused a lot as well in this shop…There’s just so much abuse you can, sort of, take.
This indicates a lack of strength of character and professional attitude to her responsibility as a pharmacist.
The agreed proposed sanction to the Tribunal suggested mentoring and further CPD.
The Tribunal considered that whilst that course of action may have gone some way to addressing the concerns, because of her relative inexperience and high level of disregard for her professional responsibilities a period of 3 months supervised practice was also appropriate.
The Board in its written submissions agreed with the suggestion of supervised practice and proposed that the order be that the supervision be for a period not less than 4 hours per month.
At the hearing counsel for Ms Naghdi accepted supervised practice was appropriate but made no submissions as to whether the supervision should be fulltime or for a certain number of hours per month.
The Tribunal accepts that fulltime supervision would not be practical. It does not however accept that 4 hours per month is sufficient. This is particularly so where Ms Naghdi told the Tribunal at the hearing that she is working in a community pharmacy in a management role and it would appear that other pharmacists are not frequently present. Also of concern is that whilst her endorsement to dispense PSE in Queensland has been cancelled she is working in New South Wales and has an unrestricted right to dispense PSE. She told the Tribunal she is in fact dispensing PSE.
The Tribunal considers that it is in her interests, and the interests of the public safety, for a substantial part of her practice to be supervised for 3 months following her return to work. This would provide her with first hand guidance and assistance in developing and maintaining appropriate dispensing practices and strength of professional character to resist difficult customers and prescribing doctors.
She will be required to be supervised for 50 hours per month for 3 months following her 1 month suspension.
The proposed sanction provided for mentoring with a focus on the areas of need, continuing of her professional education and maintenance of membership of the professional organisation. She also agreed to pay the Board’s costs. These orders were agreed to by the Registrant and the Tribunal orders accordingly.
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