Pharmacy Board of Australia v The Registrant
[2016] QCAT 97
•21 March 2016
| CITATION: | Pharmacy Board of Australia v The Registrant [2016] QCAT 97 | ||
| PARTIES: | PHARMACY BOARD OF AUSTRALIA v THE REGISTRANT | ||
| APPLICATION NUMBER: | OCR272-10 | ||
| MATTER TYPE: | Occupational Regulation Matters | ||
| HEARING DATE: | Heard on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 | ||
| DECISION OF: | Judge Horneman-Wren SC, DCJ | ||
| DELIVERED ON: | 21 March 2016 | ||
ORDERS MADE: | 1. The Tribunal finds that the Registrant has behaved in a way that constitutes unsatisfactory professional conduct pursuant to s 124(1)(a) of the Health Practitioners (Disciplinary Proceedings) Act 1999. 2. The Registrant is reprimanded. 3. The Registrant’s registration is suspended for a period of three months. 4. Order 3 is wholly suspended (“the suspended decision”) for a period of three months (“the suspension period”). 5. If: any disciplinary matter is referred to the Tribunal under s 193B of the Health Practitioner Regulation National Law or s 103 of the Health Ombudsman Act 2013 (“the further disciplinary matter”);(a) the further disciplinary matter relates to conduct of the Registrant which occurred during the suspension period; and(b) the Tribunal decides that a ground for disciplinary action has been established in a further disciplinary matter.(c) The Tribunal, in addition to any disciplinary action taken in respect of the further disciplinary matter, after allowing the Board and the Registrant the opportunity to make submissions in relation to the suspended decision, may: impose the suspended decision, or a part of the suspended decision, on the Registrant; or(i) if the Tribunal considers the imposition of the suspended decision under sub-paragraph (i) to be unfair – extend the period of the suspension period by not more than one year.(ii) Pursuant to section 241(2) (b) of the Disciplinary Proceedings Act, the following conditions be imposed upon the Registrant’s registration:6. The Registrant is to complete an education module on ethical decision making within 6 months of the decision of the Tribunal, to focus on the need to counsel clients on the therapeutic use of PSE and the alternatives which are available and can be substituted safely;(a) For the purpose of condition (1), the Registrant is to nominate a course for the approval of the Board;(b) The Registrant is to submit documentary evidence to the Board upon completion of the course;(c) The Registrant is to undergo a period of mentoring of no less than two hours per month for three months.(d) For the purpose of condition (4), the Registrant is to nominate for the approval of the Board a senior registered pharmacist who operates a Quality Care Pharmacy Program or equivalent accredited pharmacy;(e) Pursuant to section 242(1) (a) of the Discipline Proceedings Act, the details of the conditions imposed on the Registrant’s registration be recorded on the Board’s Register for the period in which the conditions are in force. 7. The Registrant must pay the Board’s costs of and incidental to the proceedings as agreed or as assessed on the standard basis for matters in the District Court.8. | ||
| CATCHWORDS: | PROFESSIONS AND TRADES- HEALTH CARE PROFESSIONALS- DOCTORS- DISCIPLINARY PROCEEDINGS- PROFESSIONAL MISCONDUCT- where Tribunal suspended the suspension of Registrant’s registration for an operational period of 3 months- where the Board submitted that the Registrant be suspended for 12 months- where tribunal indicated that 12 months would be an appropriate period of suspension in the ordinary course of events had the decision been delivered in a more timely way- where the Registrant had no resolution to the disciplinary proceedings- where the Tribunal made orders as previously imposed. |
APPEARANCES and REPRESENTATION (if any):
Mr C Wilson of counsel instructed by Lander and Rogers, lawyers for the applicant
Hede Byrne and Hall solicitors for the respondent
REASONS FOR DECISION
In its earlier reasons published on 27 November 2015 the Tribunal indicated that it was inclined to suspend the suspension of the Registrant’s registration for an operational period of three months. It invited submissions from the parties in relation to that proposal.
Written submissions on behalf of the Board were that the operational period of the suspension should be 12 months; the Tribunal having indicated that such an operational period would be appropriate in the ordinary course of events.[1]
[1]Paragraph [43] of the Tribunal’s reasons of 27 November 2015.
The Board further submitted that “there is, with respect, no explanation in the reasons as to why the delay in the decision should result in the suspension period being reduced to one quarter of the length of time which would otherwise be appropriate”.[2]
[2]Paragraph 3 of the Board’s supplementary submissions on sanction filed 16 December 2015.
Contrary to the Board’s submissions, an explanation is provided in the earlier reasons as to why the tribunal proposed the shorter operational period. The Tribunal said:
“For reasons which are no fault of the parties there has been a significant delay in the Tribunal in delivering its reasons in this matter. Had the reasons been delivered in a more timely way, the operational period of the suspension would already have passed.”
It was in those circumstances that the Tribunal expressed the view that the operational period should be “considerably reduced”.
The Board may not agree with those reasons. Nonetheless the reasons are identified.
The Board further submitted that the respondent’s practice had not been restricted during the time since the hearing and that there was no evidence that the respondent had been adversely affected because the decision had been outstanding for that period of time. That is so, however, this must be balanced with the fact that the Registrant has had no resolution to the disciplinary proceedings and that, as previously observed by the Tribunal, had there been such a resolution the operational period of any suspended suspension would by now have passed.
In the circumstances, I am inclined to make the orders as previously proposed by the Tribunal.
The Tribunal also sought further submissions from the parties as to whether the mentoring and educational conditions which were proposed to be imposed upon the registrant’s registration ought still be imposed.
In written submissions on behalf of the registrant certain mentoring and educational activities had been identified. However, as submitted by the Board, they are not of the kind and to the extent which had been previously proposed.
In the circumstances, I am inclined to impose the conditions in respect of mentoring and education which had previously been proposed by the parties.
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