Pharmacy Board of Australia v The Registrant
[2012] QCAT 515
•24 October 2012
| CITATION: | Pharmacy Board of Australia v The Registrant [2012] QCAT 515 |
| PARTIES: | Pharmacy Board of Australia |
| v | |
| The Registrant |
| APPLICATION NUMBER: | OCR280-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O'Callaghan, Acting Deputy President Assisted by: Pamela Mathers Andrew Petrie Allen Thomas |
| DELIVERED ON: | 24 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Tribunal approves the undertaking given by the Registrant to the Tribunal that they will not reapply for registration as a health practitioner in any jurisdiction in Australia. 2. The Registrant pay the Board’s costs of and incidental to these proceedings in the sum of $15,000. 3. Publication is prohibited of any information that might identify the Registrant, including their name, the name of the Registrant’s brother and the location of the former pharmacy. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – HEALTH PRACTITIONER – PHARMACIST DISCIPLINARY –– Where pharmacists dispensed Schedule 3 poisons without the pharmacy complying with quality standards – where pharmacist stocked excessive PSE products – where pharmacist failed to comply with recording sales of PSE – where pharmacy staff inappropriately dispensed PSE – where the Registrant admitted the conduct – where Registrant gave undertakings – undertakings not to reapply for registration in any Australian jurisdiction – where parties agreed on sanction – where proposed sanction appropriate – where Board referred disciplinary proceedings under the incorrect law – non publication order – where Registrant suffers from a major depressive order and has attempted suicide Health Practitioner (Professional Standards) Act 1999 Medical Board of Australia v Grant [2012] QCAT 285 |
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 has been a pharmacist for over 44 years. At the time of the conduct in question the Registrant was the joint owner of a pharmacy in M, having a 1/3 share.
The Board brought disciplinary proceedings against the Registrant for inadequate record keeping in regards to dispensing PSE while not complying with the industry quality standard, stocking excessive quantities of PSE, facilitating the inappropriate dispensing of PSE and failing to adequately record PSE sales.
Following the referral of disciplinary proceedings the Registrant has suffered severe health issues and currently resides in an aged care facility. The Registrant has sold the pharmacy and surrendered their registration. It is a regrettable end to an otherwise lengthy and apparently successful career.
Had the Board started to deal with the matter before the National Scheme commenced?
The regulation of health professionals is currently transitioning from a state based scheme, governed by the Health Practitioners (Professional Standards) Act 1999 (the ‘Professional Standards Act’), to a new national scheme, governed by the Health Practitioner Regulation National Law Act 2009 (the ‘National Law Act’).
The Board referred the matter under the Professional Standards Act, alleging that the Registrant’s conduct amounted to ‘unsatisfactory professional conduct' on the basis that the conduct was:
a. Professional conduct that is of a lesser standard than that which might reasonably be expected of the Registrant by the public and the Registrant’s professional peers; and/or
b. Professional conduct that demonstrated incompetence, or a lack of adequate knowledge, skill, judgement or care, in the practise of the Registrant’s profession; and/or
c. Providing a person with health services of a kind that are excessive, unnecessary or not reasonably required for the person’s wellbeing.
The issue arose as to whether it was correct to refer the matter under the Professional Standards Act.
Section 288 of the National Law Act states that where matters are already being ‘dealt with’ under the Professional Standards Act on or before 1 July 2010 the Professional Standards Act will continue to apply. In Medical Board of Australia v Grant[1] Judge Kingham considered what it meant to ‘deal with’ the matter. She concluded that to deal with a matter ‘the Board would have to demonstrate that it was actively investigating or considering the complaint.’[2]
[1] [2012] QCAT 285.
[2] Medical Board of Australia v Grant [2012] QCAT 285, [13].
The Board conceded that the correct law to be applied was the National Law Act as the Board had resolved to investigate the matter on 12 October 2010. Prior to this no steps had been taken.
The Board amended their referral to the Tribunal in accordance with the National Law. The referral alleged that the Registrant’s conduct amounted to ‘professional misconduct’ under the National Law Act. The Registrant provided an affidavit admitting that their conduct amounted to ‘professional misconduct.’
The admission by the Registrant does not preclude the Tribunal from making a finding on their conduct.
The conduct
The Registrant had conceded they engaged in unsatisfactory professional conduct by dispensing PSE while not complying with the industry quality standard, stocking excessive quantities of PSE, facilitating the inappropriate dispensing of PSE and failing to adequately record PSE sales.
The Registrant has submitted that the other owner of the pharmacy, who had a 2/3 share, was responsible for the pharmacy's lack of compliance with PSE procedures. The Tribunal acknowledges that while the working environment may have made it difficult for the Registrant to institute the practices necessary in PSE sales, this does not negate the Registrant’s obligations as the owner of the pharmacy and a member of the profession to ensure compliance.
A pharmacist’s primary concern when practising is the health and wellbeing of the consumer and community.[3] They are to be aware of trends and patterns of use of commonly misused substances[4] and exercise professional judgement to prevent unnecessary or excessive supply of these substances.[5]
[3]Professional Practice Standards of the Pharmaceutical Society of Australia, Version 3, Standard 1, Criterion 2.
[4]Professional Practice Standards of the Pharmaceutical Society of Australia, Version 3, Standard 1, Criterion 5.
[5]Pharmaceutical Society of Australia Code of Professional Conduct (March 1998) Principle 1 and Obligation 1.3.
PSE is prone to misuse and abuse in that it is used in the manufacture of methylamphetamine, known as ‘speed’ and ‘ice’.
In January 2006 PSE was rescheduled to a Schedule 3, Pharmacists Only, poison under the Health (Drugs and Poisons) Regulation 1996 (the ‘Regulation’). This was done with the intention of restricting the amount of PSE available for diversion to the illicit drug market.
Sale of PSE while not complying with the industry quality standard
Under the Regulation a pharmacist must not sell a Schedule 3 poison unless they have adopted a quality standard and comply with the standard when selling the products.[6]
[6]Health (Drugs and Poisons) Regulation 1996, s 273A.
The Registrant admits that the pharmacy was not compliant with industry quality standards until at least 29 October 2009.
In dispensing PSE, a Schedule 3 poison, prior to October 2009 the Registrant has breached the Regulation.
Excessive stock
As part of the initiative to prevent the diversion of PSE pharmacists are required to order stock on a ‘just in time basis.’ Wholesale suppliers of PSE in M were able to make deliveries on a daily basis.
When Queensland Health inspectors inspected the pharmacy on 29 October 2009 there were 881 items of PSE in stock. The Registrant admits that this was excessive in that it was more than was necessary for one day’s trading.
Record keeping
In May and October 2009 Queensland Health inspectors attended the Registrant’s pharmacy to obtain information relating to the dispensing of drugs and poisons. From the data collected it was revealed that there were discrepancies in the records kept by the Registrant.
It is agreed by the parties that 4,352 units of PSE are unaccounted for in the records kept by the Registrant for the period 1 January 2007 to 29 October 2009.
Only 1% of the PSE sales made by the pharmacy in the period were recorded on the dispensing software. The failure to record the sales was perpetuated due to the point of sale system not being integrated with the dispensing software.
It was practice at the pharmacy to pre-print labels on which the purchaser’s name would be hand written at the time of purchase and to bundle receipts, which had the purchaser’s name written on them, in the record book for recording at a later time/date.
The practices employed by the Registrant in the pharmacy meant that there was risk that inadequate records may be made or that sales would not be recorded. The risk did materialise as is evident from the number of units of PSE that are unaccounted for.
The Registrant was required by the Regulation to keep records of the sale of PSE.[7] The Registrant has failed to do so in regards to a substantial number of units and as so has contravened the Regulation.
[7] Health (Drugs and Poisons) Act 1996, s 285A.
Adequate record keeping is essential, not only for good business practice, but also to aid pharmacists in preventing the diversion of PSE for the manufacture of illicit drugs. Project Stop is a decision making tool for pharmacists aimed at preventing the diversion of PSE. It is an online system where details of the purchase of PSE products can be recorded and that information made available to other pharmacists. This information sharing allows pharmacists to identify persons who have already purchased PSE products and may be what the authorities call ‘pseudo-runners.’[8]
[8] Pseudo-runners are persons who source PSE for use in manufacturing illicit drugs.
Although Project Stop has been in operation since November 2005 pharmacists were not required to record in Project Stop until 1 July 2010.
The Registrant not recording in Project Stop is not a breach of any legal obligations, but keeping records of the sale of PSE in some manner would have been prudent practice in fulfilling the Registrant’s obligations to consumers and the community in relation to substances, such as PSE, which are prone to misuse.
Dispensing of PSE
When dispensing PSE pharmacists are required by the Regulation to ensure that the person to whom they are dispensing has a therapeutic need for the PSE product, and if the pharmacist does not know the person they must sight an acceptable form of identification.[9]
[9]Health (Drugs and Poisons) Act 1996, s 277.
On two occasions, first in August 2009 and again in October 2009, Queensland Health employees attended the Registrant’s pharmacy as part of a Queensland Health investigation. Staff at the pharmacy dispensed PSE product to the Queensland Health employees without taking appropriate steps to establish a therapeutic need and without sighting appropriate identification.
The Registrant in facilitating these sales of PSE has breached the Regulation.
Was the Registrant’s conduct professional misconduct?
Although the Registrant has admitted to professional misconduct the Tribunal is not satisfied that the Registrant’s conduct amounts to this.
Professional misconduct is defined in the National Law Act as including –
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.[10]
[10]Health Practitioner National Law Act 2009, Schedule, s 5, definition of professional misconduct.
Unprofessional conduct under the National Law Act is conduct that is of a lesser standard than that which might reasonably be expected of the Registrant by the public and professional peers.[11]
[11]Health Practitioner National Law Act 2009, Schedule, s 5, definition of unprofessional conduct.
The difference between the wording of the standard by which unsatisfactory professional conduct and professional misconduct is measured is curious.
The standard for unprofessional conduct is the standard which might be reasonably expected of the registrant by the public or their peers.
The standard for professional misconduct is the standard reasonably expected of a registrant of equivalent training and experience.
It is unlikely the legislature was intended to create two standards of measure. The difference may be explained by the history of health practitioner regulation.
Under the Professional Standards Act there was only one category of conduct which applied to disciplinary action – unsatisfactory professional conduct. Once conduct falls into this category the Board or Tribunal is able to enforce a sanction under the Act. The definition of unsatisfactory professional conduct includes –
(a)professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers;
…
(d)misconduct in a professional respect.
The Professional Standards Act did not provide a definition of misconduct in a professional respect. The Tribunal and the former Health Practitioners Tribunal in applying this Act have adopted the definition developed in Adamson v Queensland Law Society Incorporated:[12]
The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of the profession of good repute and competency.[13]
[12](1991) QR 498 applied in Medical Board of Australia v Christopher John Alroe [2005] QHPT 004; Medical Radiation Technologists Board of Queensland v Hennig [2010] QCAT 609; Nursing and Midwifery Board of Australia v Carroll [2011] QCAT 264; Nursing and Midwifery Board of Australia v Farley [2011] QCAT 162; Nursing and Midwifery Board of Australia v Brocklehurst [2011] QCAT 71; Nursing and Midwifery Board of Australia v Heather [2010] QCAT 423; Medical Board of Australia v Cooke [1992] 2 Qd R 608.
[13]Adamson v Queensland Law Society Incorporated (1991) QR 498, 507.
In developing the new National Law Act the Legislature created three separate categories of conduct which would act as the vehicle for sanction – unsatisfactory professional performance, unprofessional conduct and professional misconduct. It appears that the tests which had been previously used in the Professional Standards Act were adopted into the new Act without any regard to the difference in wording.
The different wording in relation to the requisite standard in my opinion is inconsequential. It would be expected that the standard expected of a practitioner by the public and their peers would be ascertained by reference to those in the profession with equivalent training and experience and by the rules, codes, regulations and guidelines of the profession.
In Psychologists Board of Queensland v Robinson[14] the Health Practitioners Tribunal and an expert providing evidence at first hearing both used the APS Code and position statement to ascertain whether the Registrant’s conduct was of a lesser standard than that reasonably expected by the Registrant’s peers, or was discreditable to the profession or unethical. On appeal to the Supreme Court Chesterman J stated, and De Jersey CJ and Davies JA agreed, that the code and position statements formed the standard of ethics to be observed by the profession as these were accepted by those in the profession of good repute as setting the standard and were observed by the profession, as obedience of them is seen as good for the reputation of the profession.[15]
[14][2004] QCA 405.
[15]Psychologists Board of Queensland v Robinson [2004] QCA 405, [24].
The Registrant’s conduct is below the standard reasonably expected of them. In engaging in the conduct, the Registrant failed to implement practices in the pharmacy to address a well documented community problem, the diversion of PSE.
The Tribunal accepted that the Registrant’s conduct was of a lesser standard than that which was expected of the Registrant by the public and their peers. The issue which the Tribunal now needs to address is does the Registrant’s conduct amount to misconduct – was the Registrant’s conduct of a substantially lesser standard?
Previous health practitioner cases while not binding provide a guide to the standards of the profession and what conduct has been considered to fall below that standard as well as what conduct has been considered to fall substantially below the standard.
As acknowledged in Graham v Queensland Nursing Council[16] when no case law exists on the construction of a new provision there may be the temptation to pick up meaning from other words in other Acts, from this jurisdiction or others. Cases on such matters should be used as guides, but cannot control the meaning of the legislation.[17]
[16] [2009] QCA 280.
[17] Graham v Queensland Nursing Council [2009] QCA 280, [95].
Accordingly, regard must be had to the words of the National Law. The words ‘substantially below’ is the relevant threshold for misconduct. The word substantial is defined as ‘of a considerable size or value’ in Collins Concise English Dictionary. The word substantially is defined as ‘to a great or significant extent’ on the Oxford Dictionary's website. It is evident from these definitions that to establish misconduct in a professional respect it must be shown on the evidence that the registrant’s conduct was more than just below the standard expected. The registrant’s conduct needs to be shown to be, to a high degree, below the standards expected of a registrant with equivalent training and experience.
In Pharmacy Board of Australia v Kinsey[18] Judge Kingham found that Mr Kinsey in failing to keep adequate records of the sale of PSE for a period of 2 years had engaged in unprofessional conduct, not professional misconduct.
[18] [2012] QCAT 359.
In Pharmacy Board of Australia v Kent[19] Mr Kent was the subject of disciplinary proceedings for inappropriate dispensing of steroids, noncompliance with regulatory requirements about pharmacy records and for an inappropriate relationship with a customer. Steroids are a drug prone to misuse and abuse. They are a restricted drug.[20] The regulations require that records be kept in the pharmacy’s controlled drug book. There were incorrect entries or omissions in the pharmacy’s controlled drug book. The Tribunal found that in regards to the record keeping Mr Kent had engaged in unsatisfactory professional conduct under the Professional Standards Act as it was conduct below the standard which might be expected. Mr Kent had dispensed 74 ampoules of anabolic steroids to one customer in a six month period. The Tribunal found that this conduct amounted to unsatisfactory professional conduct on the following grounds – it was conduct which fell below the standard reasonably expected by the public and the Registrant’s peers, the conduct demonstrated incompetence or lack of adequate knowledge, skill, judgement or care and the Registrant provided a person with health services of a kind that were excessive, unnecessary or not reasonably required for a person's wellbeing.
[19] [2012] QCAT 329.
[20]See Health (Drugs and Poisons) Regulation 1996, definition of restricted drug; Schedule 4 of the Standard for the Uniform Scheduling of Medicines and Poisons.
In Kent none of the conduct was found to be unsatisfactory professional conduct on the grounds of misconduct in a professional respect.
Having regard to the Registrant’s conduct as a whole, it does not amount to professional misconduct. Although it is below the standard expected I am not satisfied that it is substantially below the standard.
Sanction
The Registrant has provided an undertaking not to reapply for registration as a health practitioner in any jurisdiction in Australia. The Board has agreed that the Registrant‘s undertaking provides a satisfactory resolution to this matter.
The purpose of sanction is to maintain professional standards and public confidence in the profession and to protect the public.[21]
[21] Pharmacy Board of Australia v Kent [2012] QCAT 329 at [36].
Considering the Registrant’s age, current circumstances and action in already surrendering registration the Tribunal agrees that the Registrant’s undertaking will adequately address the purpose of sanction.
The Board submits, and the Registrant agrees, that the Registrant should pay the Board’s costs of and incidental to these proceedings. They have provided a fixed sum of the costs, being $15,000.
When the Board brings disciplinary proceedings to the Tribunal it does so in the exercise of its public interest function to regulate the profession. If it is able to establish that disciplinary grounds exist there is a strong basis for ordering costs in the Board’s favour.[22]
[22]Medical Board of Australia v Roberman [2005] WASAT 118 at [30], as cited in Pharmacy Board of Australia v Brenton [2011] QCAT 302 at [13].
The Tribunal agrees that it is appropriate that the Registrant pay the Board’s costs.
Non publication order
The Registrant has applied for a non publication order.
In certain special circumstances the Tribunal can make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal to be identified. One of the special circumstances in which such an order may be made is when the mental health of the person may be endangered due to the publication.
The Registrant’s solicitors have produced evidence from the Registrant’s treating psychiatrist that the Registrant suffers from a major depressive disorder and has attempted to take their own life in recent months.
The evidence establishes that the Registrant and the Registrant’s brother are well known in M and publishing any information would pose a serious risk of harm to the Registrant’s mental and physical health.
In those circumstances the Tribunal grants the non publication order sought.
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