Pharmacy Board of Australia v Wilson
[2013] QCAT 686
•13 December 2013
| CITATION: | Pharmacy Board of Australia v Wilson [2013] QCAT 686 |
| PARTIES: | Pharmacy Board of Australia (Applicant) |
| v | |
| Jodie Anne Wilson (Respondent) |
| APPLICATION NUMBER: | OCR125-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas, Judicial Member, assisted by Dr K Walduck, Mr A Petrie and Mr M Green |
| DELIVERED ON: | 13 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. (Pursuant to Section 196(1) of the Health Practitioner Regulation National Law Act 2009 (“National Law”)), the decision of the Tribunal is that the respondent Jodie Anne Wilson has behaved in a way that constitutes professional misconduct. 2. (Pursuant to Section 196(2)(a) of the National Law), the said Jodie Anne Wilson is reprimanded. 3. (Pursuant to Section 196(2)(d) of the National Law), the said Jodie Anne Wilson’s registration is suspended for a period of three months. 4. (Pursuant to Section 196(2)(b) of the National Law) the following condition is imposed on the Registrant’s registration following the period of suspension: The said Jodie Anne Wilson must not own or manage a pharmacy for a period of three years. 5. (Pursuant to Section 196(3) of the National Law) the review period for the conditions imposed on the said Jodie Anne Wilson’s registration is three years. 6. The said Jodie Anne Wilson is ordered to pay the Board’s costs of and incidental to these proceedings in a sum to be agreed or assessed. 7. Leave is granted to the parties to make further submissions to the Tribunal within seven days of notification of these reasons and orders. |
| CATCHWORDS: | HEALTH PRACTITIONERS – PHARMACIST – DISCIPLINARY PROCEEDINGS – Health Practitioner Regulation National Law Act 2009 - Function of the tribunal following parties agreeing upon terms of the proposed order – referral under s 193 of that Act – need for orders within powers conferred by that act – s 196 of that Act – whether professional misconduct established – whether Tribunal may give board corrections as to registration of reprimand or of period for which conditions are to remain registered – whether payment of board’s costs can be made a condition of registration – observations on drafting of orders – level of sanction |
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
Jurisdiction
This is a referral from the Pharmacy Board of Australia under s 193 of the National Health Practitioner Regulation National Law. That law, as adopted and binding in this State, is scheduled to the Health Practitioner Regulation National Law Act 2009 (Qld). The relevant schedule will be referred to as “the adopted National Law”.
QCAT is the “responsible Tribunal”.[1]
[1] Health Practitioner Regulation National Law Act 2009 (Qld) s 6.
Background Circumstances and Issues for this Tribunal
The respondent, Ms Wilson, was at material times, and remains, a registered Pharmacist. From June 2004 she was an employed pharmacist at Ferguson's Mt Gravatt Day & Night Pharmacy. During 2011 she was the pharmacist in charge, pursuant to arrangements made following criminal charges against Mr Arulogun who controlled the company which ran the pharmacy.
The misconduct alleged against Ms Wilson included various acts performed by her with a view to enabling Mr Arulogun to avoid the consequences of the restrictions that had been imposed upon him by the Board, and include her failure to report “notifiable conduct” on his part.[2] It also includes her participation in the intimidation of a fellow employee with the object of deterring that employee from pursuing a complaint against Mr Arulogun.
[2] The adopted National Law s 140, 141.
The parties to this litigation (the Pharmacy Board of Australia and Ms Wilson) are agreed upon the orders which they submit this Tribunal should make in this case. They recognise however that an independent discretion must be exercised by this Tribunal whose function includes protection of the public and the maintenance of professional standards. In short, consent orders are not binding in this disciplinary jurisdiction.[3]
[3] See Pharmacy Board of Australia v Arulogun [2013] QCAT, 13 December 2013.
The Board is a professional body, with duties in relation to pharmacists and their profession. It acts as both investigator and prosecutor in proceedings of this kind. It is a responsible body with knowledge of the needs of the procession, and due weight must be given to its view on such matters and to the fact that the parties both agree with the proposed order. But in the end the appropriate sanction is for this Tribunal to determine.
One issue requiring consideration is whether the circumstances are sufficient to justify a finding of professional misconduct as distinct from unprofessional conduct. These terms are defined in s 5 of the adopted National Law.
Ms Wilson’s solicitors initially submitted that a finding of unprofessional conduct was more appropriate in the circumstances than one of professional misconduct, but has since withdrawn that submission and would now consent to a finding of professional misconduct.
It is also necessary in these matters to consider whether orders to which the parties are prepared to agree are in conformity with the powers vested in the Tribunal by the adopted National Law. In particular the discretion to impose sanctions must be exercised within the limits stated by s 196(2) of the adopted National Law.[4] Several of the proposed orders lie beyond the powers conferred on the Tribunal under that law.
[4]Compare Nursing and Midwifery Board of Australia v Fankhauser [2013] QCAT 395, [43] et seq.
Facts and circumstances
Ms Wilson has been a pharmacist since 1994. She has never come to the attention of the Board prior to these proceedings or since then.
At material times her principal was Mr Arulogun who ran the pharmacy. Some time prior to 2011 he started moving quantities of prohibited drugs to his home, and dealing with them contrary to the Drugs Misuse Act 1986. His activity came to the notice of the police, and on 18 May 2011 he was charged with various offences including supply of a drug (PSE), possession of methadone and other relevant substances and things at his residential address, and unlawful possession of restricted drugs. The Board learned of the charges and responded promptly by imposing conditions upon his practice, including prohibition of obtaining or dealing with various prescribed drugs, and prohibited him from possession of any keys to the pharmacy, requiring him to surrender the keys to another pharmacist employed by him. He was prohibited from entering the pharmacy unless accompanied by another pharmacist employed by him. Further restrictions were imposed on 7 October 2011.
On 21 November 2011 Mr Arulogun was arrested at the pharmacy and further charges were laid. He pleaded guilty and was sentenced in the Magistrates Court on 23 January 2012 and was ordered to serve 18 months imprisonment with a non parole period of 6 months. He was released from custody on 23 July 2012.
Ms Wilson separated from her husband and commenced a personal relationship with Mr Arulogun before the criminal charges were dealt with, and it continued for a time when he was released from custody in July 2012.
Ms Wilson knew at material times of the restrictive conditions that had been placed upon Mr Arulogun by the Board. She was well aware on 11 and 20 September 2011 and at the beginning of November 2011 that he was entering the pharmacy, and indeed SMS communications between them suggest that she facilitated or assisted the covering up of his breaches of the conditions.
During the relevant period, Mr Arulogun was in the process of conducting significant renovations for the pharmacy and various contractors were performing renovation work. It also seems clear that Mr Arulogun regularly and, covertly so far as employees other than Ms Wilson were concerned, visited the pharmacy for the purpose of inspecting the books and records and maintaining knowledge to enable him to give direction for the business. It may be noted in passing that this latter function could have been arranged without the necessity of his personally entering the pharmacy.
Ms Wilson’s explanation of her cooperation with Mr Arulogun are that she had formed a personal relationship with him, and did not feel competent to assume the burden of dealing with contractors concerning the renovation work. She accepts that her personal relationship affected her judgment.
However, she was also a participant in a discreditable incident involving pressure being placed upon a fellow employee, Ms XY. Ms Wilson accepts (although Mr Arulogun contests) that Mr Arulogun alleged a theft by Ms XY in order to intimidate her from persisting in her report concerning him to the Board. Ms Wilson acknowledges that she participated in this intimidation by speaking with Mr Arulogun about what was to be done, and also in speaking to Ms XY to discourage her involvement. She very quickly repented of this action, and declined to be further involved in it.
In the period preceding the proceedings in the Magistrates Court, Ms Wilson was responsible for much of the day to day management of the pharmacy. She was also in the process of negotiating with Mr Arulogun over the purchase by her of the business, given that it was likely that he could not continue running the pharmacy because of the conditions of his registration. A desire to purchase the business motivated her to cooperate with Mr Arulogun. This does not mitigate the gravity of her conduct but it helps explain it.
Ms Wilson, through her solicitors, very properly made full admissions and has been cooperative with the Board in the conduct of these proceedings. Some of the admissions (including her knowledge of the conditions imposed concerning Mr Arulogun at material times) might otherwise have been difficult to prove. The material also include supportive references from other persons with knowledge of her work as a pharmacist and the fact that she is a single mother caring for three children. In due course she disassociated herself completely from Mr Arulogun when the situation became clear.
Orders proposed by the parties
The Board and Ms Wilson have both submitted that an appropriate order in this case would be:
1. Pursuant to Section 196(1) of the Health Practitioner Regulation National Law Act 2009 (“National Law”), the Registrant has behaved in a way that constitutes professional misconduct.
2. Pursuant to Section 196(2)(a) of the National Law, the Registrant is reprimanded.
3. The details of that reprimand be recorded on the Board’s Register for a period of three years from the date of the Tribunal’s decision.
4. Pursuant to Section 196(2)(d) of the National Law, the Registrant’s registration be suspended for a period of three months.
5. 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 must not own or manage a pharmacy for a period of three years.
(b)The Registrant is to be responsible for paying any costs associated with these conditions.
6. 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.
7. Pursuant to Section 116(3) (sic) of the National Law, the review period for the conditions imposed on the Registrant’s registration is three years.
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.
Discussion
The first question is whether the conduct shown is sufficiently serious to support a finding that the respondent “has behaved in a way that constitutes professional misconduct”.
The conduct was clearly unprofessional and unacceptable. However the main question is whether it was “substantially below the standard reasonable expected of a registered health practitioner of an equivalent level of training or experience”.
The circumstances include the fact that as employee of Mr Arulogun’s company, she was subject to direction from him in a number of respects, and he would be in a position to disadvantage her. To say the least, the Board’s directions of June and October 2011 had the potential to place her in a testing situation. Of course her legal duty was to uphold the lawful directions of the Board but the realities of the relationship are that she was in a difficult situation with the duty of supervising her employer while he was under the relevant restrictions.
I am inclined to think that in the circumstances her failure to report Mr Arulogun’s breaches to the Board, standing alone, should be characterised as unprofessional conduct rather than professional misconduct. However the situation is aggravated by her improper conduct towards Ms XY, and when considered in combination it is capable of sustaining a finding of professional misconduct.
Her conduct occurred over a matter of months, and looked at as a whole, and with the benefit of advice from the assisting members of the Tribunal, I am prepared to find that the conduct charged is capable of amounting to, and does amount to, professional misconduct.
It follows that it will be appropriate to make the order requested in paragraph 1 of paragraph [20] above.
Inappropriate orders and drafting
A problem arises concerning the inclusion of paragraphs (3) and (6) of the proposed order.
Paragraph 3 of the proposed order requires the Board to register the details of the reprimand in its register for a period of three years. This seems to have been framed under the system that formerly prevailed under the Health Practitioners (Disciplinary Proceedings) Act 1999. While that Act still operates in some proceedings in this Tribunal, it has no application to the present matter which is governed by the adopted National Law. The present proceeding is a reference under s 193 of that law. In such proceedings the only orders that the Tribunal can make are those specified in s 196 of that law.
That section contains no power to direct the Board how it is to perform its administrative actions in relation to the recording of the reprimand. The Board’s actions in that respect are governed by ss 205, 225 and 226. Section 225(j) obliges it to register the reprimand, and under s 226(3) it has a discretion to remove such information, but only ‘if it considers it no longer necessary or appropriate for the information to be recorded on the register’. This Tribunal has no power to direct the Board what it is to do in these respects. In my view some good reason would need to exist to justify an erasure of records of disciplinary conduct that is of sufficient seriousness to warrant a reprimand and suspension. That however will be a matter for the Board in due course.
Similar considerations apply to proposed order number (6).
It follows that paragraphs (3) and (6) of the proposed order should be deleted.
It should also be noted that it is not usually necessary or desirable that the orders of the Tribunal include statements identify the statutory provisions under which the order is made. The present proposed order does so in six of its eight paragraphs. Identification of the power under which the Tribunal acts is generally the function of the reasons for judgment as distinct from the order itself. Orders should be as concise as possible.
In this instance I will follow the form proposed by the parties, but indicate that in future matters, it will be preferable that such references be omitted from the orders made.
A further problem arises in relation to paragraph (5) of the proposed order. The registrant’s obligation to pay the Board’s costs is already covered by paragraph 8 of that order. It is not appropriate to in effect secure such payment by making it a condition of registration or future registration. Payment of the costs of disciplinary proceedings is not by any means an act or omission ‘in connection with the practitioner's practice’ (see the adopted National Law s 196(2)(b)(iii)), and it is not a condition that can be imposed under that sub-clause or under any of the other sub-clauses of s 196(2)(b). It should therefore be deleted.
Substance of the proposed order
This Tribunal has examined the cases referred to by the parties as reflecting to some extent comparable misbehaviour by professional workers including pharmacists.[5] We think that the situation is appropriately covered by administering a reprimand and letting it stand on the register for three years, along with an order that her registration be suspended for three months, and a further sanction that she must not own or manage a pharmacy for three years. It is also appropriate that the respondent pay the Board’s costs of these proceedings, and we note that this is no light burden.
[5]Cases include Pharmacy Board of Australia v Kinsey [2012] QCAT 359; Pharmacy Board of Australia v Fitzpatrick [2012] QCAT 552.
In short, we are satisfied that in substance the proposed order is appropriate in the circumstances.
Despite the deletions in paragraphs (3), (5) and (6) of the proposed order and the drafting issues canvassed above, the orders that this Tribunal proposes to make do not in my view depart in substance from the basis upon which the parties made their submissions to the Tribunal. However, as those submissions appear to have been based upon some legal misconceptions, leave will be granted to the parties for a period of seven days to make further submissions if so advised on the orders that are set out below. A short period (seven days) is desirable because further delay would operate to the disadvantage of Ms Wilson. If application is made within that time the matter will be reopened; otherwise the orders will stand.
Orders
The orders will be:
1. (Pursuant to Section 196(1) of the Health Practitioner Regulation National Law Act 2009 (“National Law”)), the decision of the Tribunal is that the respondent Jodie Anne Wilson has behaved in a way that constitutes professional misconduct.
2. (Pursuant to Section 196(2)(a) of the National Law), the said Jodie Anne Wilson is reprimanded.
3. (Pursuant to Section 196(2)(d) of the National Law), the said Jodie Anne Wilson’s registration is suspended for a period of three months.
4. (Pursuant to Section 196(2)(b) of the National Law) the following condition is imposed on the Registrant’s registration following the period of suspension:
The said Jodie Anne Wilson must not own or manage a pharmacy for a period of three years.
5. (Pursuant to Section 196(3) of the National Law) the review period for the conditions imposed on the said Jodie Anne Wilson’s registration is three years.
6. The said Jodie Anne Wilson is ordered to pay the Board’s costs of and incidental to these proceedings in a sum to be agreed or assessed.
7. Leave is granted to the parties to make further submissions to the Tribunal within seven days of notification of these reasons and orders.
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