Professional Conduct Committee of the Pharmacy Council v A
[2021] NZHC 949
•29 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-865
[2021] NZHC 949
UNDER Health Practitioners Competence Assurance Act 2003 IN THE MATTER
of an appeal to the High Court pursuant to s 106(3) of the Health Practitioners Competence Assurance Act 2003
BETWEEN
A PROFESSIONAL CONDUCT COMMITTEE OF THE PHARMACY COUNCIL
Appellant
AND
A, B, C and E Respondents
Hearing: 8 September 2020 Appearances:
J P Coates and A N Lane for Appellant J L Forrest for Respondents
Judgment:
29 April 2021
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 29 April 2021 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Claro Law, Wellington Counsel: J L Forrest, Wellington
A PROFESSIONAL CONDUCT COMMITTEE OF THE PHARMACY COUNCIL v A [2021] NZHC 949 [29
April 2021]
[1] The appellant (“PCC”) appeals against a decision of the Health Practitioners Disciplinary Tribunal (“Tribunal”).1
[2] The Tribunal determined that the PCC had not proved a charge of professional misconduct brought against each respondent (together the “practitioners”) under ss 100(1)(a) and (b) of the Health Practitioners Competence Assurance Act 2003 (“Act”).
[3] The respondents are, or were at the material time, pharmacists practising in Auckland who each dispensed on a prescription presented by a Ms D. The practitioners accepted they had been negligent in some respects, and the Tribunal also determined some of their acts or omissions were likely to bring discredit to the profession.2 However, the Tribunal was not persuaded they were guilty of professional misconduct, hence its decision.
[4] The PCC seeks an order quashing the Tribunal’s decision, a finding of professional misconduct in its place and the imposition of a penalty pursuant to s 101 of the Act.
Approach on appeal
[5] The appeal proceeds by way of rehearing and thus is to be determined in accordance with the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar.3
[6] The PCC must show the decision under appeal is wrong, but the High Court must arrive at its own assessment of the merits of the case. I may confirm, reverse or modify the Tribunal’s decision and may make any other decision or order that the Tribunal might have made.4 I must come to my own view on the merits, after
1 Professional Conduct Committee v [A, B, C and E] HPDT 1090/Phar19/436, 437, 438 and 439P, 15 May 2020.
2 Health Practitioners Competence Assurance Act 2003, ss 100(1)(a) and (b).
3 Section 109(2); and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 Section 109(3).
considering the evidence before the Tribunal, and giving the Tribunal’s reasoning such weight as is appropriate.
[7] The Tribunal heard evidence from, amongst others, three of the practitioners and two expert witnesses, one called by each side. The Tribunal comprised a Queen’s Counsel as Chair, a lay person, and three pharmacists, and its decision was unanimous. Inclusion of three practitioners of the relevant profession is mandatory, plainly to ensure that appropriate expertise is brought to bear in determining whether a charge is made out.5 Because of that, greater deference to the Tribunal’s conclusions may well be appropriate on particular issues to which this expertise is material.6
Facts
[8] What follows derives from the Tribunal’s decision which in turn derives from a statement of agreed facts the parties provided to the Tribunal.
[9] With the exception of one matter relating to A, the charge against each practitioner arose from a fraud perpetrated by Ms D in 2017, carried out in the following manner.
[10] In the first instance, Ms D obtained a legitimate prescription for 13 tablets of an antibiotic and for 10 tablets of the painkiller Tramadol, these quantities being modest.
[11] Ms D subsequently told the prescribing physician that she had lost the original prescription, and she was then sent an unsigned and undated copy of the document. Ms D presented this copy on many occasions, to many different pharmacists and pharmacies, and the medication was dispensed. It should not have been, given that the prescription was unsigned and, usually, undated. That said, the modest quantity referred to above was a point in the practitioners’ favour. On their own, such quantities would not alert a practitioner to anything out of the ordinary and, moreover, it would not be unexpected for a patient prescribed with such a modest quantity to return seeking further medication.
5 Section 88.
6 A v Professional Conduct Committee [2018] NZHC 1623 at [5].
[12] Ms D’s modus operandi was to obtain the pharmacist’s sympathy, saying that she had toothache and/or cancer, sometimes crying, sometimes telling the practitioner that chemotherapy was making her nauseous, sometimes wearing a bandana and asking about products for hair loss, and often conversing with the practitioner when he or she was filling the prescription. Also, Ms D often attended during a busy period for the pharmacy concerned and was usually accompanied by her children who were a source of distraction, running up and down the aisles and such like. The Tribunal’s view was that these “diversionary tactics” were deliberate, and were intended to distract the practitioner from the task at hand.
Investigation
[13] In early August 2017, the Pharmaceutical Society alerted pharmacists to Ms D’s conduct. Subsequent investigation revealed that between April and August 2017, Ms D had presented copies of the prescription on 60 occasions to 21 pharmacies in the Auckland region. Fifty-three of the 60 prescriptions presented and dispensed were unsigned. Thirty-seven pharmacists dispensed on the prescription, some more than once.
[14] Having investigated, the PCC resolved to lay a disciplinary charge against each respondent.7 The respondents were distinguished from other pharmacists by the fact that each had dispensed on the prescription on three or more occasions.8 That said, Ms D had presented the prescription, successfully, at some pharmacies on many occasions, but to different pharmacists employed at those pharmacies.
Statutory provisions/charges
[15] Each practitioner was charged with committing acts and/or omissions which individually or collectively amounted to “professional misconduct” within ss 100(1)(a) and (b) of the Act. Sections 100(1)(a) and (b) provide:
100 Grounds on which health practitioner may be disciplined
7 Health Practitioners Competence Assurance Act, s 80(1).
8 A dispensed on three occasions: 30 June, and 8 and 31 July 2017; B on four occasions: 4 May, 13 June, and 18 and 25 July 2017; C on five occasions: 18 and 22 May, 7 June, and 3 and 11 July 2017; and E on four occasions: 4, 13 and 23 May, and 22 June 2017.
(1)The Tribunal may make any 1 or more of the orders authorised by section 101 if, after conducting a hearing on a charge laid under section 91 against a health practitioner, it makes 1 or more findings that—
(a)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, amounts to malpractice or negligence in relation to the scope of practice in respect of which the practitioner was registered at the time that the conduct occurred; or
(b)the practitioner has been guilty of professional misconduct because of any act or omission that, in the judgment of the Tribunal, has brought or was likely to bring discredit to the profession that the health practitioner practised at the time that the conduct occurred; or
[...]
[16] If professional misconduct is established the Tribunal may impose one or more of the penalties listed in s 101, including censure, supervision, suspension, cancellation of registration, and/or an order to pay a fine and/or costs.
[17] The PCC alleged each practitioner had committed acts and/or omissions which constituted malpractice or negligence (s 100(1)(a)) and which were likely to bring discredit to the profession (s 100(1)(b)).
[18] The acts and/or omissions relied upon were identified by the dates on which the practitioner had dispensed on the prescription and the respects in which it was contended he or she had erred in doing so, being that the prescription was unsigned and (sometimes) undated; that, prior to dispensing, the practitioner had failed to carry out an adequate check of Ms D’s history; and (sometimes) the practitioner had claimed the subsidy for the dispensed pharmaceutical outside the permitted 90-day period.
[19] The charge against A included two additional particulars. The first was not proved and is not in issue so I need not say anything about it. The other, which is in issue, was that, as the “charge” pharmacist at his pharmacy, A failed to ensure sufficient pharmacists were employed for the pharmacy’s workload.
Two-stage test
[20] Malpractice, negligence or discrediting conduct is not on its own sufficient to prove professional misconduct in the sense of ss 100(1)(a) or (b). Rather, professional misconduct is proved by way of a longstanding two-stage test. This test was formulated in authorities decided under predecessor legislation and, in Martin v Director of Proceedings, Courtney J confirmed it continues to apply under the Act.9 The Tribunal and High Court have applied it since. The test is as follows:10
[34] ... the Tribunal must apply a two-stage test to determine whether professional misconduct has been established. First, it must determine whether the practitioner’s acts or omissions constituted malpractice or negligence or have brought discredit to the medical profession. Secondly, it must determine whether the practitioner’s acts or omissions were significant enough to warrant disciplinary sanction for the purpose of protecting the public or maintaining professional standards.
First stage: malpractice, negligence or discredit
[21] The Tribunal was satisfied that the failure to identify that the prescription was unsigned and, where applicable, undated was negligent. The Tribunal also determined the failure to notice the lack of a signature was likely to bring discredit to the profession as it was a “basic error”. Although there is no express finding in respect of the claiming of the subsidy out of time, the Tribunal’s summary of its conclusions makes it clear it considered that on a par.
[22] The Tribunal also determined that, on the third and any subsequent presentation of the prescription, the practitioner’s failure to check the patient’s history was negligent and likely to bring discredit to the profession, but not on the first and second occasion, given the modest quantities prescribed. Even then, the Tribunal said the failure to check was not an “egregious” error given Ms D and her prescription appeared genuine i.e. Ms D’s conduct, the modest doses and the appropriate period between each presentation.
9 F v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 774 (CA) at [80]; and Martin v Director of Proceedings [2010] NZAR 333 (HC).
10 Williams v Professional Conduct Committee of the Medical Council [2018] NZHC 2472 at [34] (footnotes omitted).
[23] The Tribunal was not persuaded any practitioner’s conduct constituted malpractice, this classification being “generally reserved for cases in which there is some element of immoral or unethical conduct or culpable negligence by the practitioner”.11
[24] The Tribunal was satisfied the second particular against A was established and he had been negligent, but also accepted that A was the charge pharmacist in name only, not in substance. A had only assumed that position when the owner of the pharmacy was himself disciplined, and A did not have authority within the business to hire.
Second stage: departure of sufficient significance to warrant sanction
[25] These conclusions brought the Tribunal to the second stage of the test. The Tribunal decided that the departures from acceptable standards of practice were not of sufficient significance to warrant sanction to protect the public or maintain professional standards. The issue on appeal is whether this decision was correct.
[26] The second stage of the test is often referred to as the threshold test because it marks the point at which a departure from acceptable standards becomes professional misconduct.
[27] In Martin, Courtney J said that the threshold should not be regarded as “unduly high” but that a “notable departure from acceptable standards” is required; and that the threshold is to be “reached with care, having regard to both the purpose of the Act and the implications for the practitioner”.12 Courtney J noted that the purpose of the Act, being to protect the health and safety of members of the public by providing for mechanisms to ensure health practitioners are competent and fit to practise their professions, did not require a disciplinary response to “the minor human errors that inevitably occur in practice” (or in a practitioner’s personal life) with the assessment to be one of degree.13
11 Professional Conduct Committee v [A, B, C and E], above n 1, at [145].
12 Martin v Director of Proceedings, above n 9, at [32].
13 At [23] and [30].
[28] Subsequent cases to which counsel referred me have enlarged upon this.14 The breach must be of “sufficient significance to merit recording a finding of professional misconduct”, and the gravity and seriousness of the breach must be taken into account in ascertaining the same. There must be behaviour which falls “seriously short” of that considered acceptable; a finding of professional misconduct carries “considerable stigma” and is a significant matter reserved only for serious misconduct; and it is necessary to consider the “inevitable adverse consequences” of such a finding that are borne by the practitioner. Courtney J said, and Moore J repeated this in Johns v Director of Proceedings, that a “straightforward” assessment is what is required.15
Relevant part of the Tribunal’s decision
[29] Given the points raised on appeal, it is necessary to set out the relevant section of the Tribunal’s decision in full:16
Does the established conduct warrant discipline?
[152] The Tribunal must now go on to consider whether the established acts of negligence identified above, are significant enough to warrant a disciplinary sanction for the purposes of protection of the public or maintaining professional standards. This must be considered both on the basis that the particulars established, either separately or cumulatively, warrant a finding of professional misconduct.
[153] We have been mindful that the threshold for this second stage of the test for professional misconduct is not to be set unduly high. Professional misconduct will inevitably cover of range of offending from the less serious end of offending through to the most serious dishonesty and sexual offending. Still it is “a threshold to be reached with care, having regard to both the purposes of the [Act] and the implications for the practitioner, but the measure of seriousness beyond the mere fact that the conduct warrants sanction is a matter to be reflected in penalty.”
[154] The Tribunal having considered all the evidence and relevant cases, is not persuaded that the negligence of the practitioners in this case is significant enough to warrant sanction. Not all acts of negligence warrant disciplinary sanction. We make this finding because of the following factors:
(a)None of the practitioners deliberately or recklessly set out to dispense on the prescription. This is not a case in which there
14 Johns v Director of Proceedings [2017] NZHC 2843 at [83] and [86]; and Williams v PCC, above n 10 at [36].
15 Martin v Director of Proceedings, above n 9 at [31]; and Johns v Director of Proceedings, above n 14 at [82].
16 Professional Conduct Committee v [A, B, C and E], above n 1.
has been a wilful or even reckless disregard for professional obligations;
(b)The dental prescription was for a small dose of Tramadol together with an antibiotic. These factors together with [Ms D’s] behaviour on presentation, was an elaborate fraud which sufficiently distracted the pharmacists and was a significant contributor to the errors made by each of the practitioners; and
(c)Each of them made the same error on three to five occasions, over a relatively short period of one to two months, in relation to one drug seeking patient. While these remain separate errors on each occasion, they are part of the same negligent conduct towards this one patient.
[155] The Tribunal has also considered the cases that both the PCC and the practitioners have referred to in submissions. These cases similarly do not persuade the Tribunal that this case falls easily alongside comparable cases as professional misconduct.
[156] The previous cases cited are all cases that involve either deliberate breaches of professional obligations, recklessness or otherwise unintended but extensive negligence ranging over a number of years, a number patients, or involving high levels of dispensing or prescribing which all warrant sanction for the protection of the public or maintenance of standards. The previous cases in which professional misconduct have been established, demonstrate that charges before this Tribunal are to be reserved for those types of cases. These factors are not present in the findings of negligence for any of the four practitioners in the present case.
[157] The negligence established against [A, B, C and E] is not in the same category. The principal purpose of [the Act] is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions. This does include ultimate accountability for serious wrongdoing before this Tribunal. However, the ... Act also seeks to promote competence and fitness to practice through competency pathways under Part 3 of the Act.
[158] We do not consider that the facts of this case warrant a finding of professional misconduct in order to maintain professional standards or protect the public. The conduct established as negligent in this case can be appropriately addressed under Part 3 of the Act.
[159] Overall, none of the established conduct for the practitioners, is a sufficiently serious departure from acceptable standards, either separately or cumulatively, to amount to professional misconduct.
Submissions on appeal
[30]The PCC submits the Tribunal erred as follows:
(a)applied an incorrect, and too stringent, test at the threshold or second stage;
(b)wrongly found that each dispensing was part of the same pattern of conduct;
(c)gave insufficient weight to the repeated nature of the conduct;
(d)gave insufficient weight to the expert evidence;
(e)gave insufficient weight to Ms D’s vulnerability and the harm to her health by supplying her with a drug of addiction;
(f)placed excessive weight on what the Tribunal described as Ms D’s “elaborate fraud”;
(g)placed insufficient weight on the principal purpose of the Act;
(h)failed to consider the additional particular established against A, namely the inadequate staffing of the pharmacy concerned.
[31] The PCC submits these matters warrant the orders it seeks, at the very least against A given [30(h)] above.
Incorrect threshold test
[32] The PCC submits that a “key reason” the Tribunal found the threshold test had not been met was because none of the practitioners “deliberately or recklessly set out to dispense on the prescription”, and there had been “no wilful or even reckless disregard” for professional obligations. These statements are in [154(a)] of the Tribunal’s decision and the PCC submits they evidence the Tribunal applied a new, substantially higher and wrong threshold test for professional misconduct.
[33] I am not persuaded the Tribunal applied the wrong test. As the PCC accepts, the Tribunal correctly set out the second stage of the test in [152] and, in [153], what is and is not required to satisfy that stage.
[34] As I read [154(a)], and also [156] of the decision, the Tribunal was distinguishing the case before it from the prior decisions in which professional misconduct had been proved, to which counsel themselves had referred the Tribunal and each of which the Tribunal had considered earlier in its decision.
[35] In [156], the Tribunal characterised the conduct in those cases as involving a deliberate or reckless breach of professional obligations, or unintended but extensive negligence over a number of years or involving a number of patients or high levels of dispensing or prescribing, all of which warranted sanction for the protection of the public or maintenance of standards.
[36] To give some examples, in Kardaman and Ismail the pharmacists dispensed on 88 prescriptions and eight medical practitioner’s supply orders that had not been signed.17
[37] In May, the pharmacist dispensed 773 fraudulent prescriptions, for more than 43,000 tablets of pseudoephedrine, over a six month period, dispensing several times every day.18
[38] In Vohora v A Professional Conduct Committee, the pharmacist concerned had practiced without an annual practising certificate, allowed an unqualified person to dispense prescription medicines and had failed to keep an accurate and adequate “controlled drugs” register.19 The Tribunal determined there had been professional misconduct on the totality of that conduct, rather than individual errors.
[39] In the passage to which counsel for the PCC has referred me, the Tribunal was saying, correctly, that the conduct in the cases to which counsel had referred the
17 Kardaman and Ismail 590Phar13250 and 13251P.
18 May 197/Phar08/99P.
19 Vohora v A Professional Conduct Committee [2012] NZHC 507.
Tribunal as relevant was quite different, and on a wholly different scale of negligence or worse, from the conduct charged in the present case.
[40] More broadly, in my view the Tribunal was simply not persuaded that the errors in the present case were of sufficient significance to warrant a finding of professional misconduct. As the authorities referred to in [27] and [28] above make clear, the conduct must be of such seriousness to warrant burdening the practitioner concerned with a finding of professional misconduct, a decision to be arrived at in the course of a “straightforward assessment”.
[41] That the Tribunal did not impose a disciplinary sanction was clearly not the end of the matter. Rather, the Tribunal said the errors were best addressed under Part 3 of the Act, to which I refer below.20
Erroneous finding that each dispensing was part of the same conduct and giving insufficient weight to the repeated nature of the errors
[42] The PCC challenges the Tribunal’s assessment in [154(c)] that each act of dispensing was part of the “same negligent conduct towards this one patient”. The PCC submits this characterisation is incorrect and that each act of dispensing was a breach of the practitioner’s obligations which happened on different occasions “over many weeks and even months”. The PCC also contends that the Tribunal erred because it put no or insufficient weight on the repeated nature of the breaches, submitting that a sustained failure is more serious than an “isolated aberration”.21 Whilst one or two breaches might be a mistake, three within a short period of time is evidence of a systemic problem.
[43] With respect to counsel for the PCC, it does not particularly matter how the conduct is characterised or whether the PCC considers three breaches evidence of a “systemic” problem. The only issue in this case is whether the departure from acceptable standards was of sufficient significance to warrant a sanction for either of the nominated purposes and, as I have said, the Tribunal determined it was not and I agree.
20 Professional Conduct Committee v [A, B, C and E], above n 1, at [157] and [158].
21 Martin v Director of Proceedings, above n 9, at [108]; and Re Drury 500/Psy12/216P at [43].
Tribunal gave insufficient weight to the expert evidence on threshold
[44] The PCC contends that the Tribunal ought to have given greater weight to the evidence of each expert, Ms K Cunningham for the PCC and Ms C Miller for the practitioners, to the effect that in dispensing on an unsigned prescription on three or more occasions, the practitioners fell well short of the appropriate standards. The PCC contends this was evidence that the threshold had been reached and that it ought to have been given greater weight.
[45] With respect to counsel, this is not evidence that the threshold has been met. It is evidence the first stage has been met and, as would be expected, the Tribunal took that evidence into account when determining that the errors were a departure from acceptable standards. However, whether the threshold is met is a matter for the judgment of the Tribunal, not an expert. I should add that I am not persuaded the Tribunal did not take this evidence into account at the threshold stage, given the opening words of [154], being “The Tribunal having considered all the evidence…”.
Patient vulnerability
[46] The PCC submits the Tribunal ought to have placed greater emphasis at the second stage on the fact that Ms D was a vulnerable patient harmed by the dispensing, essentially because at least one purpose of the checking procedures is to protect the vulnerable.
[47] The PCC may well be correct that this is one purpose of the procedures but I am not persuaded that this warrants a different result.
Elaborate fraud
[48] At [154(b)] of the decision the Tribunal described Ms D’s behaviour as an “elaborate fraud” which distracted the practitioners and which, coupled with the modest quantities prescribed, contributed to the errors made.
[49] The PCC submits the Tribunal’s description of Ms D’s behaviour as an elaborate fraud was an overstatement and that a practitioner is often confronted with distractions such as a talkative patient and/or one with “loud, disruptive children”.
[50] Although I do not consider the description of Ms D’s behaviour an overstatement, I accept the PCC’s point that such distractions may not be uncommon. Again, however, this is not sufficient to change my view of the overall correctness of the Tribunal’s decision.
Insufficient weight on the purpose of the Act
[51]The purpose of the Act is as follows:
3 Purpose of Act
(1) The principal purpose of this Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.
[52] The PCC submits a core part of the disciplinary process is the setting of standards for health practitioners for the protection of the public; that patients and the community expect pharmacists to be accurate when dispensing “pharmacy-only” medications and it is those parties who will bear the brunt if standards lag and dispensing-related errors are tolerated; that there must be “no room for doubt” amongst the profession that repeated errors are unacceptable and the Tribunal’s decision in the present case leaves uncertainty as to the standards expected of pharmacists. The PCC submits there is inconsistency between the Tribunal’s statement that the errors were “basic” and the practitioners plainly negligent, with its failure to impose a disciplinary response.
[53] Again, I am not persuaded the Tribunal erred as submitted. I referred above to the Tribunal’s assessment that the errors made in this case could be sufficiently addressed under Part 3 of the Act. Part 3 permits a review of a practitioner’s competence, gives powers to require the practitioner to demonstrate his or her competence and/or to take remedial steps, and even to suspend a practising certificate or include conditions affecting the practitioner’s scope of practice. Moreover, the Tribunal directed that its decision, and a summary of it, be published on its website and asked that the Pharmacy Council of New Zealand publish a summary of or reference to the decision in its principal professional publications.
[54] These directions evidence that the Tribunal recognised the need to bring the facts of the case to the profession’s attention and plainly considered the steps it ordered sufficient to that end.
A’s additional negligence
[55] The PCC submits that, in considering the second stage of the test, the Tribunal omitted to take into account its finding that A had been negligent in failing to ensure the pharmacy at which he was engaged was sufficiently staffed.
[56] I accept the Tribunal did not refer to this matter but I do not think it would or should have altered the Tribunal’s ultimate conclusion. As the Tribunal noted, although A had been negligent, he had resigned (without having another position to go to) and thus taken “the appropriate course of action”.22 A having done so, it is difficult to see why it would have been necessary to impose a disciplinary sanction. I have already addressed the directions the Tribunal made to ensure its decision was brought to the attention of the profession.
Conclusion
[57] To conclude, I am not persuaded the Tribunal erred in reaching its decision. On the contrary, I consider the decision reached was correct and consistent with the authorities to which I have referred above.
Result
[58]I dismiss this appeal.
[59]The parties may make submissions on costs if required.
Peters J
22 Professional Conduct Committee v [A, B, C and E], above n 1, at [150].
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