Vohora v A Professional Conduct Committee - [2012] NZHC 507

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2011-412-000762 [2012] NZHC 507

IN THE MATTER OF an appeal pursuant to s 106(2)(b) of the Health Practitioners Competence Assurance Act 2003

BETWEEN RAVI VAS VOHORA Appellant

ANDA PROFESSIONAL CONDUCT COMMITTEE
Respondent

Hearing: 15 and 16 December 2011

Appearances: C S Withnall QC for Appellant
M McClelland and H Brown for Respondent

Judgment: 23 March 2012

JUDGMENT OF WHATA J

[1] Over a period of some ten years Mr Vohora has objected to documenting standard operating procedures. He says that they are instruments of delegation. In his view pharmacists should not delegate key functions to staff and therefore standard operating procedures are not only unnecessary but are inappropriate. Mr Vohora was charged with professional misconduct within the scope of his practice, or in the alternative, professional misconduct bringing discredit to the profession. Key facts are agreed. Mr Vohora did not keep a controlled drugs register for a period of four years and has not, over some ten years, documented standard operating procedures. The Tribunal considered that this was both misconduct within the scope of his practice and misconduct bringing discredit to the profession. Mr Vohora appeals on the basis that standard operating procedures do not fall within the scope of his practice. There is no evidence of any harm to any patient and he has
always acted with due care in the dispensing of medicines. He also says that because

VOHORA V A PROFESSIONAL CONDUCT COMMITTEE HC DUN CIV-2011-412-000762 [23 March 2012]

he was charged in the alternative, the Tribunal erred by mixing and matching the types of misconduct when it arrived at its penalty, namely cancellation of his registration.

[2] I must resolve whether Mr Vohora’s so called principled protest was professional misconduct attracting discipline, and if so whether it warranted the Tribunal’s sanction of cancellation.

Background

The charges

[3] Mr Vohora was notified of the following charges (among others):

1.The Committee charges that Mr Vohora as the proprietor and sole pharmacist of Pharmacare Highgate Maori Hill Pharmacy (‘the Pharmacy’) is guilty of professional misconduct in that he has committed acts or omissions that a) amount to malpractice or negligence in relation to his scope of practice (section 100(1)(a) of the Act) or, in the alternative, b) that he has committed an act or omission that has or is likely to bring discredit to the profession (section 100(1)(b) of the Act).

2.The acts or omissions that the Committee alleges amount to professional misconduct are that Mr Vohora:

[4] The particulars of the charge relevant to this appeal include:

a.Has acted in breach of the Medicines Regulations 1984 in that he instructed and/or allowed an unqualified person, Siraya O’Sullivan, to dispense prescription medicine in breach of regulation 42 of the Medicines Regulations.

...

c.Has acted in breach of the Misuse of Drugs Regulations 1977 in that from 30 June 2006 to 16 April 2010...

...

eHas failed to practise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 507
Decision Date: 23 March 2012

CaseChat Overview and Summary

Ravi Vohora appealed against the Tribunal’s decision to cancel his registration as a pharmacist, finding that he had committed professional misconduct. The Tribunal found that Mr Vohora had failed to maintain a Controlled Drugs Register, had allowed an unqualified person to dispense prescription medicines, and had failed to document Standard Operating Procedures (SOPs). The Tribunal found that the breaches amounted to malpractice and/or brought the profession into disrepute. The Tribunal imposed the maximum penalty of cancellation of registration. The Court found that the Tribunal had erred procedurally in combining the findings under s 100(1)(a) and (b) for the purpose of discipline, and that the cancellation was disproportionate. The Court, however, found that serious sanction was warranted. It deferred its decision to quash the cancellation pending final determination of the appropriate penalty. Submissions should be addressed within 10 working days from the respondent, with ten working days for reply by the appellant. Costs are reserved pending final determination.

Orders