Pharmacy Board of Australia v Smith
[2012] QCAT 186
•20 April 2012
| CITATION: | Pharmacy Board of Australia v Smith [2012] QCAT 186 |
| PARTIES: | Pharmacy Board of Australia (Applicant/Appellant) |
| v | |
| Russell Smith (Respondent) |
| APPLICATION NUMBER: | OCR269-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Assisted by: Ms Kerrie Kensell Ms Pamela Mathers Mr Wayne Sanderson |
| DELIVERED ON: | 20 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Mr Smith’s registration is suspended for 6 months. 2. The suspension ordered is wholly suspended, provided that Mr Smith must not be the subject of disciplinary action by the Tribunal for 12 months from the date of this order. 3. The details of Mr Smith’s suspension must be recorded on the Board’s Register for twelve months from the date of this order. 4. The following conditions must be imposed on Mr Smith’s registration: 4.1. Mr Smith must complete a tertiary module in ethical decision making. 4.2. Mr Smith must nominate a course for the approval of the Board. 4.3. Mr Smith must submit documentary evidence to the Board upon completion of the course. 4.4. Mr Smith must undergo mentoring of not less than 2 hours per month for 6 months. The mentoring should focus upon ethical decision making in a dispensing environment. 4.5. Mr Smith must nominate a senior pharmacist as a mentor for the approval of the Board. 4.6. The mentor must provide a report in writing to the Board at the end of each quarter and upon completion of the period of mentoring. 4.7. Mr Smith must bear any costs associated with the provision of mentoring, including the provision of reports to the Board. 4.8. Mr Smith must complete an oral legislative assessment nominated by the Board after 12 months from the date of this Order. 5. The details of the conditions imposed on the Mr Smith’s registration must be recorded on the Board’s register for the period in which the conditions are in force. 6. Mr Smith may not apply to the Chief Executive, Queensland Health, under the Health (Drugs and Poisons) Regulation 1996 for reinstatement of his endorsement under section 171 of the Regulation for Testosterone, Nandrolone and Somatropin for 12 months from the date of the decision. 7. Mr Smith must pay the Board’s costs of and incidental to these proceedings in the sum as agreed or assessed on the standard basis against the District Court Scale. |
| CATCHWORDS: | HEALTH – PHARMACIST – DISCIPLINARY PROCEEDINGS – Where pharmacist dispensed anabolic steroids in quantities, combinations and frequency that well exceeded normal dispensing practices – Where employed pharmacist who received no personal benefit – where parties agreed on the orders that should be made Health (Drugs and Poisons) Regulation 1996, s 64 Pharmacy Board of Australia v Donnelly [2011] QCAT 584 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Smith qualified as a pharmacist in the United Kingdom in 1971. He has been registered in Queensland since 1993. These proceedings involve his practise as a pharmacist in Gladstone, between July 2008 and March 2009.
In that period, Mr Smith dispensed the following anabolic steroids to a single customer:
a)84 Deca-Durabolin ampoules;
b)18 Deca-Durabolin Orgaject ampoules;
c)168 Primoteston Depot ampoules;
d)1,200 Proviron tablets;
e)180 Sustanon ampoules; and
f)4 Reandron ampoules.
Such medications have the potential for misuse and abuse. It is well known in the profession that there is an illicit market in their trade.
Mr Smith conceded, and the Tribunal finds, that he engaged in unsatisfactory professional conduct in the following respects:
a)His conduct fell below the standard that might reasonably be expected of him by the public and his professional peers;
b)His conduct demonstrated incompetence or lack of adequate knowledge, skill, judgment or care in the practise of his profession; and
c)He provided a person with health services of a kind that was excessive, unnecessary or not reasonably required for that person’s wellbeing.
A pharmacist’s primary concern must be the health and wellbeing of the consumer and the community.[1] Pharmacists must promote judicious, appropriate, safe and effective use of medicine and be aware of the trends and patterns of use of commonly misused substances.[2]
[1]Professional Practice Standards of the Pharmaceutical Society of Australia (version 3, 2006) Standard 1, criterion 2.
[2]Professional Practice Standards of the Pharmaceutical Society of Australia (version 3, 2006) Standard 1, criterion 5.
This requires pharmacists to exercise professional judgment to prevent the supply of products likely to constitute an unacceptable hazard to health or to supply unnecessary or excessive quantities of medicines with the potential for abuse or dependency.[3]
[3]Pharmaceutical Society of Australia Code of Professional Conduct (endorsed by the National Council in March 1998) Principle 1 and Obligation 1.3.
It is unusual for a doctor to prescribe two or more different preparations of steroids of similar use and outcome to a patient at the same time. The volume dispensed exceeded the quantities usually prescribed for each medication. The frequency of dispensing was far in excess of normal dosage ranges, by reference to MIMS On-Line, an online medical reference source.
In one period, Mr Smith dispensed steroids to the customer on three consecutive days. On another occasion, he dispensed multiple steroids in the knowledge that the pharmacy had supplied the customer with those medications by the pharmacy only four days earlier.
Mr Smith was one of three pharmacists at the practice dispensing to the same customer. This suggests a failure in the pharmacy’s procedures for monitoring dispensing practices. However, an audit conducted by Queensland Health concluded the problem was confined to a single customer. He also obtained such medications from a pharmacy at a different practice. Those other pharmacists are subject of separate disciplinary proceedings.
[10] All the scripts filled by Mr Smith were valid and under the hand of a doctor known to him. He did not question the doctor’s prescriptions, although he had sufficient information to do so. Mr Smith conceded that he ought to have known that the quantity and combinations of restricted drugs he dispensed to the customer were not necessary for a therapeutic purpose.
[11] He agreed he should have been alert to the possibility that the customer was diverting or abusing steroids and ceased dispensing until he had discussed the matter with the prescribing doctor and discussed a policy for dispensing to the customer with the other pharmacists.
[12] Mr Smith is a very experienced pharmacist. It might be discomforting, particularly in a regional centre, for one professional to question the practises of another. Nevertheless, pharmacists must exercise independent judgment in dispensing to a customer, even if this appears disrespectful to another practitioner.
[13] Mr Smith says he was told by the pharmacist who then owned the practice, Mr Paul Kent, that the customer was travelling to a place in which he would have no access to the medications. Presumably, this is put forward to explain why he dispensed in quantities that exceeded legitimate therapeutic needs. Again, Mr Smith accepted information he should have queried and failed to exercise his independent judgment.
[14] Mr Smith has demonstrated insight about the deficit in his response to the situation. He has not obtained, dispensed, sold or possessed Testosterone, Nandrolone or Somatropin since told of the investigation in March 2009.
[15] He is now more vigilant in his dispensing procedures. If a prescription appears out of the ordinary, he checks doses in MIMS or discusses the matter with the prescribing doctor. He notes when a customer presents earlier than expected for repeat prescriptions and enquires if he suspects a customer is seeking to stockpile medications.
[16] He has since bought the practice involved and has attained accreditation by the Pharmacy Guild of Australia’s Quality Care Pharmacy Program. The Tribunal accepts Mr Smith is genuine when he says he is embarrassed about his lack of judgment in relation to this customer and that he is committed to maintaining the high standards required for accreditation.
[17] The parties have jointly proposed orders that the Tribunal accepts are adequate to ensure the public is protected and that professional standards are maintained, through a combination of training, assessment and mentoring. Those orders are in near identical terms to the orders imposed on another pharmacist involved in dispensing to this customer, Ms Donnelly.[4]
[4] Pharmacy Board of Australia v Donnelly [2011] QCAT 584.
[18] Although she is a junior pharmacist, she showed less insight about her conduct than has Mr Smith. He has, since, changed his dispensing practises.
[19] The Tribunal’s orders suspend Mr Smith’s registration for six months. This serves to denounce his conduct and deter others from similar practices. In Mr Smith’s case, that order is, itself, suspended. The decision to suspend recognises that he has insight into his responsibilities, has demonstrated his intention to run the practice, which he now owns, on best practice principles, has derived no personal benefit, and is otherwise of good character. During the next 12 months, Mr Smith is at risk of the Tribunal activating the suspension order if he is subject to further disciplinary proceedings in the Tribunal. This would have significant financial implications for him as the owner of the pharmacy.
[20] Mr Smith has agreed to pay the Board’s legal costs as agreed or assessed. Given the findings made against him, it is appropriate that he bear those costs.
[21] Although not a matter that bears upon the sanction in this case, it is appropriate to observe that each of the pharmacists involved with this customer have been subject to disciplinary proceedings. To date, however, it seems no proceedings have commenced in the Tribunal in relation to the prescribing doctor. Guarding against inappropriate access to drugs with the potential for misuse and abuse is a shared professional responsibility. The Tribunal would expect that the relevant practitioner boards would take a consistent approach to dealing with practitioners who fail in their professional responsibilities in this regard.
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