Professions and Trades - Medical and related professions - Pharmaceutical chemists - Discipline and removal from register - Consequential orders.

Judgment Number: [2004] TASSC 88

1 The appellant having been found guilty of professional misconduct (Adamson v The Pharmacy Board of Tasmania (No 2) [2004] TASSC 82), it is now necessary to address the consequential orders, if any, that should be made pursuant to the Pharmacists Registration Act 2001 ("the Act"), s53(1), which provides:

"53 - (1) After it has conducted any formal disciplinary proceedings, the Board, in its discretion, may take such one or more of the following actions as it considers appropriate in light of its findings:

(a) remove the defendant's name from the register;

(b) suspend the defendant's registration, totally or partially, for a period not exceeding 12 months;

(c) impose on the defendant a fine not exceeding 50 penalty units;

(d) impose a condition on the defendant's registration;

(e) require the defendant to take or refrain from taking specified action;

2 Adapting the law as enunciated by Cosgrove J in Dickens v The Law Society 42/1981 at 15 - 16 to a disciplinary hearing under the Act, I approach this matter on the basis that the powers to discipline a pharmacist are entirely protective in character and no element of punishment is involved. The powers are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the pharmacy profession which will continue its good reputation, and so protect, not only the future profession, but also protect its customers from harm. With this object in mind, it is necessary to look to the future. Even if the pharmacist's misconduct is relatively slight, he or she may yet be removed from the register, if his or her capacities and attitude have been revealed to be such that his or her continuance in practice constitutes a threat to the profession or the public. On the other hand, conduct which is itself more grave in nature, may not warrant removal from the register, if it is seen as a temporary and explicable departure from the pharmacist's own high standards. The objective is to uphold the standards of the profession. To that end, the Act, s53(1), provides for removal from the register, suspension, a fine, conditional registration, a requirement to take or refrain from taking action and a caution or reprimand. Insofar as the exercise of any of these powers involves a depravation of one kind or another to the pharmacist, the depravation is merely part of the exercise of the discipline of the profession. There is no retributive element, no intention to express outrage, as there sometimes is in sentences for crime. The order to be made is the order that is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct. A distinction is to be drawn between disciplinary action, which is corporate and self-respecting, and punishment, which is personal and retributive.

3 Mr O'Farrell, counsel for the appellant, submits that the appellant should not be removed from the register as the finding made against him is that of unprofessional conduct rather than professional misconduct, the latter being acknowledged to be a graver form of misconduct. I reject this submission insofar as it suggests that the categorisation of the conduct determines what course should be taken. Even if the appellant's misconduct could be said to be relatively minor, it may be necessary to order his removal from the register, if his capacity and attitudes have been shown to be such that his continuance in practice constitutes a threat to the profession or the public.

4 The appellant incorrectly dispensed 25mg Panafcortelone tablets when 5mg tablets had been prescribed and thereafter incorrectly dispensed a repeat supply of the same tablets. This was a serious breach of duty as during the previous three years the appellant had on two occasions been the subject of disciplinary proceedings in relation to, in all, four dispensing errors. As a consequence of the most recent of those disciplinary hearings, the appellant had provided the respondent with a written undertaking to enforce compliance with a dispensing process approved by the respondent. Had that dispensing process been followed, there were at least three and possibly four occasions on which the appellant should have noticed the error.

5 Before the Tribunal the appellant's poor eyesight was proffered as an explanation for his failures. The Tribunal was informed that the removal of cataracts from the appellant's eyes had greatly improved his vision and he could now drive and read without the aid of glasses. Notwithstanding that improvement, the appellant, by his counsel before the Tribunal, acknowledged that he had reached an age, 80, from which he should only practice under the supervision of a registered pharmacist.

6 In all the circumstances I conclude that to allow the appellant to continue to practice as a pharmacist would bring the profession into disrepute and constitute a threat to the public. In the event that I reached this conclusion, Mr O'Farrell, in substance, submitted that an appropriate order would be one which allowed the appellant to continue to practice subject to conditions such as that he practice under the direct supervision of a registered pharmacist, or that he not dispense medication.

7 In my view any order of long term effect that embraced either of these conditions would not be appropriate. The capacity to prepare and dispense medication is the defining characteristic of a pharmacist. It would be not far short of a sham to allow a person open-ended registration as a pharmacist on condition that he or she did not dispense medication. An order that had this effect would bring the profession into disrepute.

8 The appellant is the proprietor of his own pharmacy and he employs another pharmacist on a fulltime basis. It would not be befitting to make an order that the appellant be supervised by this employee. It is not the role of an employee in a business to supervise in any authoritative way his or her employer and the proprietor of the business. Such a role is incompatible with the relationship between an employee and an employer. An order to this effect may not safeguard the public and would tend to bring the profession into disrepute.

9 In my view, the only appropriate order is that the appellant's name be removed from the register. If deregistered the appellant must not engage in the practice of pharmacy or hold an interest in a pharmacy. To make a deregistration order with immediate effect may cause unwarranted hardship to the appellant and the community served by his pharmacy. With a view to alleviating some of the harm that will flow from the appellant's deregistration, I will defer it until 23 November 2004. This will give the appellant an opportunity to transfer his pharmacy to another pharmacist without any disruption to the service it provides. I will also order that the appellant not dispense medication during the period of the deferral of his deregistration. This is the most satisfactory means I can devise for coping with the conflicting considerations present in this case. It is desirable that the appellant be given an opportunity to dispose of his pharmacy and minimise any disruption to its operation.

10 Mr O'Farrell submits that an order for deregistration at a future date is beyond the powers granted by the Act, s53(1). No authority was cited in support of this submission, and I reject it. Disciplinary powers such as those contained in the Act, s53(1), are entirely protective in character; Dickens v The Law Society (supra), Law Society of Tasmania v Turner and Kench [2001] TASSC 129; (2001) 11 Tas R 1 and Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 201. In this case an order deregistering the appellant at a future date and an order that he not dispense medication prior to his deregistration will protect the public and will not tarnish the reputation of the profession. Nothing in the Act, or more particularly, s53(1), provides any basis for concluding that an order of deregistration from a future date is beyond power; such an order is consistent with the objects of the Act and I am satisfied it is within the scope of s53(1).