Pharmacy Board of Australia v The Registrant
[2013] QCAT 245
| CITATION: | Pharmacy Board of Australia v The Registrant [2013] QCAT 245 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| The Registrant (Respondent) |
| APPLICATION NUMBER: | OCR281-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President Assisted by |
| DELIVERED ON: | 24 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Pursuant to section 196(1)(b) of the Health Practitioner Regulation National Law (Queensland), the Tribunal finds that the Registrant has behaved in a way that constitutes unsatisfactory professional performance. 2. The Registrant pay the Board’s costs of and incidental to the proceedings in a sum to be agreed, or failing an agreement, as assessed. 3. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 the publication of any information identifying the Registrant is prohibited. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – DISCIPLINARY PROCEEDINGS – where the registrant was part owner of a pharmacy – where pseudoephedrine products where inappropriately dispensed by the pharmacy – where inadequate records were kept by the pharmacy – where the registrant provided an undertaking to the board – where joint submissions were made by the parties – whether the Tribunal should make a finding under section 196 of the Health Practitioner Regulation National Law (Queensland) Health (Drugs and Poisons) Regulation 1996, s 277, s 285A |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Registrant in this matter was a pharmacist who conducted a pharmacy practice in partnership in provincial Queensland for many years. He is now elderly and infirm. He has ceased practicing pharmacy. He voluntarily surrendered his registration to the Board.
On an occasion in August 2009, a Queensland Health employee purchased pseudoephedrine (PSE) product from the pharmacy without being asked for identification or about any therapeutic need for the product. On that occasion, no pharmacist was present at the pharmacy and no record was made of the transaction.
Four days later, a Queensland Health employee again purchased PSE product from the pharmacy without a pharmacist being present.
Section 277 of the Health (Drugs and Poisons) Regulation 1996 prohibits pharmacists selling PSE unless they are reasonably satisfied that the purchaser has a therapeutic need for it and, if they do not know the identity of the purchaser, the purchaser gives the seller an acceptable form of identification.
The Registrant admits that the two sales referred to in August 2009 breached the obligations imposed under s 277 of the Regulation.
Section 285A of the Regulation requires that sales of PSE must be recorded.
In October 2009 Queensland Health conducted an inspection of the pharmacy’s records which revealed that 5537 units of PSE were dispensed by the pharmacy without sufficient records. The inspection also revealed that the point of sale system at the pharmacy was not integrated with the dispensing software, and that the pharmacy used pre-printed labels by which the purchasers’ name was written onto the label. A record book and bundles of receipts indicated a poor recording keeping process. A Queensland Health analysis found that 48% of PSE items purchased for the pharmacy were unaccounted for.
The former registrant admits that the recording keeping in respect of the PSE products breached s 285A of the Regulation.
The former registrant has admitted that his conduct would constitute unsatisfactory professional conduct if viewed against s 124(1)(a) of the Health Practitioners (Professional Standards) Act 1999. The Board’s referral of the matter to the Tribunal was, originally, pursuant to the Health Practitioners (Professional Standards) Act 1999. However, the referral was later amended to be a referral under the Health Practitioner Regulation National Law(Queensland). In the amended referral the Board alleges that the conduct of the former registrant constituted professional misconduct under the National Law.
In a joint submission on sanction the parties have agreed that a finding of ‘unsatisfactory conduct under the Health Practitioner Regulation National Law Act 2009 (“National Law”) is appropriate and consistent with prior authorities’. Unfortunately, ‘unsatisfactory conduct’ is not a matter addressed by the National Law. The National Law provides for three forms of conduct in respect of which a health practitioner may be disciplined.[1] Those forms of conduct are ‘unsatisfactory professional performance’, ‘unprofessional conduct’ and ‘professional misconduct’.
[1] See ss 139 & 196(1)(b) of the National Law.
On the basis of the admissions made by the former registrant, the Tribunal is satisfied that he has behaved in a way that, at least, constitutes unsatisfactory professional performance under the National Law. Accordingly, the Tribunal will make a formal finding, pursuant to s 196(1)(b)(i) of the National Law that the former registrant has behaved in a way the constitutes unsatisfactory professional performance.
The former registrant has provided an undertaking to the Board that, having formerly surrendered his registration, he will not apply for registration as a health practitioner in any jurisdiction in Australia. In those circumstances the parties agree that no further order is necessary under s 196 of the National Law. The Tribunal agrees.
The parties agree that the former registrant ought to be ordered to pay the Board’s costs in a sum to be agreed or assessed. The Tribunal will make that order.
The former registrant has also sought a non-publication order. The Tribunal is of the view that it is in the interests of justice that a non-publication order be made in respect of this particular matter. The Tribunal will, therefore, make an order, pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 prohibiting the publication of any information that may enable the former registrant to be identified.
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