The Health Care Complaints Commission, ("the Commission"), brings proceedings for disciplinary findings and orders against Susan Murtagh, a pharmacist, under the Health Practitioner Regulation National Law (NSW) ("the National Law").
The case the Commission brings against Ms Murtagh is that from 2004 to 2020, whilst working as a Director of Pharmacy at a Hospital, she dispensed numerous drugs in the hospital dispensing system in her name and the names of three of her family members when there was no corresponding entry in the hospital patient system. Further, for the last portion of that period when it was required, the hospital did not hold valid prescriptions.
This conduct could not be explained by the use of the pharmacy software program ("iPharmacy") test system. At the time iPharmacy had a "test" environment that could be used to generate medication labels. A test label could be generated within the test environment in iPharmacy rather than processing the transaction through the "Dispensing" tab in iPharmacy. Using the "test" environment to generate medication labels did not affect the balance of the medication, that is; the stock held on hand, at the Pharmacy.
The Commission also contends that from 2015 - 2020 Ms Murtagh distributed numerous drugs in the hospital dispensing system to different wards in circumstances where some of the drugs were not on the ward imprest list,(that is; medications to be held in stock and available to be supplied), there was no written request from the ward and, in respect of one of the drugs, there were no patients on the ward who were prescribed that drug.
By reason of this conduct, and other inappropriate dispensing in the hospital dispensing system on two dates in 2020, it is alleged Ms Murtagh misappropriated medication for her own use and/or her family's use. It was also alleged that in 2021 Ms Murtagh had provided false or misleading information when questioned by delegates of the Pharmacy Council of the New South Wales ("the Council") about her conduct.
The initial Application is dated 6 December 2023. It is supported by a Complaint of the same date. The Complaint as originally filed contained three individual complaints and was supplemented by information in an attached Schedule and three Annexures. The Schedule identified the names of a Patient and three of Ms Murtagh's family members. The three Annexures, A, B and C, amongst other matters, identified medication dispensed and distribution dates.
The Application was subsequently amended on 2 May 2024. The amendments related to the form of the disciplinary orders sought by the Commission under the National Law. This reflected the fact that after the lodgement of the initial application Ms Murtagh's registration status as a pharmacist had changed and she was no longer registered.
An amended Complaint dated 16 May 2024 was filed on 17 May 2024 ("the Complaint"). The amended Complaint corrected errors in dates and other clarifications, although the gravamen of the three individual complaints against Ms Murtagh remained the same.
The Complaint filed on 17 May 2024, which is the subject of this decision, is annexed to these reasons and marked "A". The Complaint as annexed to this decision does not include the attached Schedule or Annexures that formed part of the initiating Complaint. The Schedule and the three Annexures were not changed and remain part of the Complaint before us.
By letter dated 14 May 2024 Mr Tyler of Greg Tyler and Associates, Solicitors, wrote to the Tribunal on behalf of Ms Murtagh advising that she would not be attending the hearing. It was indicated that Ms Murtagh did not contest the Commission's application. Various documents were attached to this letter including submissions from Ms Murtagh, a medical report, references, and a reply dated 15 February 2024 which was referrable to the initial application for disciplinary proceedings.
Ms Murtagh's reply dated 15 February 2024 indicated that she did not object to the orders that the Commission sought in the initial application. These were an order cancelling her registration, that she could not seek review of the cancellation order for a period of three years, costs and a prohibition on the disclosure of the names of the people listed in the Schedule to the Complaint.
Other documents in the form of emails tendered by the Commission from Ms Murtagh's legal advisers dated 17 and 20 May 2024 indicated that Ms Murtagh had seen and agreed to the orders sought in the Amended Application and did not dispute the amended Complaint.
Ms Murtagh did not attend the hearing. Section 165J(3) of the National Law allows the Tribunal to proceed with the hearing in the absence of a practitioner provided that notice of the hearing has been given. We are satisfied that Ms Murtagh has been given notice of the hearing and has declined the opportunity to attend.
The hearing proceeded in the absence of Ms Murtagh. It proceeded to finality as a combined stage one, that is; consideration of the evidence relevant to the Complaint, and; in the event of the Complaint being substantiated, stage two, being what disciplinary orders should be made. The email dated 20 May 2024 from Ms Murtagh's legal advisors had also indicated that Ms Murtagh consented to the hearing taking place in her absence as a combined hearing comprising both stages one and two.
We are also satisfied that Ms Murtagh was on notice of the orders as amended and sought by the Commission. As noted, the form of the orders sought in the amended application reflected the fact that Ms Murtagh was no longer registered.
Although Ms Murtagh indicated that she did not dispute the amended Complaint, it is necessary for the Tribunal to be independently satisfied of the facts relied on to establish the particulars of the Complaints due to the operation of ss.165M(2) and 165M(5) of the National Law.
The disciplinary orders the Commission seeks against Ms Murtagh are sourced in s 149C(4) (a) - (c) of the National Law. They are; that if Ms Murtagh were still registered, the Tribunal would have cancelled her registration with a period of disqualification from being registered as a pharmacist for three years, and that the National Board record that the Tribunal would have cancelled Ms Murtagh's registration. The Commission maintained its position for related orders these being for costs and the non-disclosure of the names of persons who were referred to in the evidence.
Some factual matters that are not relevant to the reasoning process but, which if included, may tend to identify persons who are referred to in the evidence have been omitted from this decision and from the Complaint attached to this decision to ensure the integrity of the non-disclosure orders.
[2]
Background
In 1984, Ms Murtagh completed a Bachelor of Pharmacy at the University of Sydney. Ms Murtagh was registered as a pharmacist in NSW in January 1985.
On 14 October 1987, Ms Murtagh started working as Director of Pharmacy at a Hospital ("the Hospital"), in the Hunter New England Local Area Health District ("HNELHD"). Prior to this appointment Ms Murtagh had worked in two hospital pharmacy settings including as an acting Director of Pharmacy.
In July 2020 staff members raised concerns about Ms Murtagh removing medication from the Pharmacy Department for personal use. In August 2020 HNELHD commenced an investigation which continued for around six months. The investigation process included several interviews with Ms Murtagh and opportunities for her to comment on the allegations.
Ms Murtagh held the position of Director of Pharmacy at the Hospital until her resignation in October 2021. Between August 2022 to January 2024 Ms Murtagh worked in community pharmacy.
In early October 2021 HNELHD made a notification to the Commission. Flowing from this notification Ms Murtagh participated in proceedings convened by the Pharmacy Council of NSW ("the Council") under s 150 of the National Law on 18 October 2021. At the conclusion of these proceedings the Council made orders under s 150(1)(b) of the National Law and decided to impose conditions on Ms Murtagh's registration that she not practice as a sole pharmacist or as a pharmacist in charge. It also made orders that Ms Murtagh was to notify prospective employers about the conditions imposed on her and she was not to possess keys or access codes or cards to any pharmacy.
In February 2023, Ms Murtagh sought a review by the Council under s 150A of the National Law of the conditions imposed on her registration. In support she attached a certificate and letter from the family GP, a letter from her employer, a character reference, an information form and various dispensing records for medication supplied at community pharmacies commencing 24 April 2020. Subsequently, Ms Murtagh also provided the Council her dispensing records from 1 January 2021 to 22 March 2023.
On 29 March 2023, Ms Murtagh participated in the section 150A review hearing. Ms Murtagh gave evidence that she had never taken or misappropriated any medication from the hospital. She was unable to explain why she had only provided dispensing records from 2020 onwards rather than the period of the allegations. The Council affirmed the s 150 decision, and the conditions were unchanged.
Ms Murtagh surrendered her registration in February 2024 and is currently unregistered: AHPRA Evidentiary Certificate dated 20 May 2024.
[3]
The Complaint
The Complaint comprised three individual complaints grounded in complaints of unsatisfactory professional conduct and professional misconduct brought under s 144(b) of the National Law.
[4]
Complaint One
Complaint One is of unsatisfactory professional conduct in that Ms Murtagh has engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy. This complaint is made under s 139B(1)(l) of the National Law.
The particulars in support of this complaint are as follows:
1. Between March 2004 and February 2020, Ms Murtagh inappropriately dispensed the drugs in iPharmacy as set out in Annexure A to the Complaint in her name and/or the names of her family members in circumstances where there was no corresponding entry made in the Clinical Application Portal ('CAP').
2. Between May 2017 and February 2020, Ms Murtagh inappropriately dispensed the drugs in iPharmacy as set out in Annexure A to the Complaint in her name and/or the names of her family members in circumstances where there was no valid prescription held.
3. Ms Murtagh dispensed the drugs as set out in Particulars 1 and 2 above in circumstances where the dispensing occurred outside the 'test' environment in iPharmacy where Ms Murtagh ought to have known that there was a "test" environment in the program iPharmacy that could be used to generate medication labels.
4. On 24 April 2020, Ms Murtagh inappropriately dispensed in iPharmacy 30 cetirizine 10mg tablets in the name of Patient A in circumstances where:
1. the dispensing occurred after the Pharmacy's opening hours;
2. Patient A was discharged earlier that same day from [the] Hospital;
3. a pharmacy technician had already dispensed Patient A's discharge medications as recorded in CAP and MedChart earlier in the day;
4. certirizine was not prescribed to Patient A during his stay and/or upon discharge.
1. Between January 2015 and March 2020, Ms Murtagh inappropriately distributed the drugs in iPharmacy as set out in Annexure B to the Complaint in circumstances where:
1. Cetirizine, esomeprazole, loratadine, Q.V. wash, venlafaxine, meloxicam, mometasone and olmesartan were not on the medical ward's imprest list and dulaglutide was not on any ward's imprest list;
2. there was no written request for cetirizine, esomeprazole, loratadine, Q.V. wash and venlafaxine from the Nurse Unit Manager ('NUM') of the relevant ward.
1. On 16 March 2020 Ms Murtagh inappropriately dispensed in iPharmacy the drug tacrolimus to the Medical Ward of [the] Hospital in circumstances where:
1. Ms Murtagh herself requested that the drugs be ordered on 13 March 2020;
2. no patient in [the] Hospital was prescribed the drug for the period 13 to 17 March 2020.
1. Between June 2019 and January 2020, Ms Murtagh inappropriately dispensed in iPharmacy the drug dulaglutide as set out in Annexure C to the Complaint in circumstances where there were no patients on the ward who had been prescribed dulaglutide on the relevant dates.
2. Ms Murtagh inappropriately misappropriated the drugs for her own personal use and/or for her family's use by reason of her actions set out in Particulars 1 to 7,
3. Between November 2013 and April 2020, Ms Murtagh's conduct as set out in Particulars 1 to 7 was in breach of the following provisions of the NSW Health Policy Directive PD2013_043 (Medication Handling in NSW Public Health Facilities) in circumstances where her position as Director of Pharmacy required her to comply with the policy:
1. 5.4.3 - Authorised Recipients of Pharmacy Service Medications;
2. 5.5.1 - Orders for Dispensing Patient- Labelled Medications;
3. 5.5.10 - Records of Dispensing;
4. 5.6.1 - Requisitions for Imprest Medications.
iPharmacy is a software program used in the management and dispensing of medications.
An "imprest" list is the method by which medications are supplied from the Pharmacy Service of a hospital to the health service or the wards, theatres, departments or clinics thereof, either in containers of the original manufacturer, or repacked containers in order to establish and maintain a stock of medications at a pre-determined level for use in such places.
[5]
Complaint Two
This Complaint is about the provision of false information by Ms Murtagh to the Council. It was also a complaint of unsatisfactory professional conduct comprising improper or unethical conduct relating to the practice or purported practice of pharmacy under section 139B(1)(l) of the National Law.
The particulars in support of this complaint were as follows:
1. Ms Murtagh provided false and/or misleading information to the section 150 delegates on 18 October 2021 by stating that the medications that were dispensed to herself and her family members between March 2004 and February 2020 had been prescribed by a General Practitioner when she knew this to be untrue.
[6]
Complaint Three
This Complaint is that Ms Murtagh is guilty of professional misconduct under section 139E of the National Law.
Specifically that Ms Murtagh had engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of her registration.
The particulars of Complaints One and Two were relied upon to support this Complaint.
[7]
The Commission's Evidence to support the particulars of Complaints One and Two
[8]
Complaint One
Particulars 1, 2 and 3 are about dispensing entries which Ms Murtagh made in the hospital dispensing system (iPharmacy) which purported to dispense numerous drugs to herself, and two family members.
The evidence before us included source material comprising hospital dispensing records between 23 March 2004 and 24 April 2020 and a summary table prepared in November 2020 by Ms Berry, Pharmacist and Medication Safety and Quality Manager for the relevant Local Health District, using the source material. We are satisfied that except for two small errors in the summary table which are inconsequential to this decision, the table accurately reflects the source material.
The evidence which establishes Particulars 1-3 includes the hospital patient treatment system (CAP), the prescribing system (Medchart), the dispensing/distributing system (iPharmacy) and its test environment.
On each occasion, Ms Murtagh logged into the iPharmacy dispensing system, entered the name/medical record number (MRN) for herself or her family members as the purported patient, entered the ID/description for the purported cost centre, entered the dispensing date, entered the name/ID of the purported prescriber, entered the drug description/brand of the medication; entered the Unit of Measurement (UoM)/quantity, entered the purported dispense directions, entered the purported dispense class (inpatient/discharge/outpatient) and processed the transaction through the "Dispensing" tab in iPharmacy.
On each occasion, the iPharmacy system recorded which ward each transaction had been charged to, transaction date, medication, strength, quantity and directions and the name of the person who had authorised the deletion of the dispensing record in iPharmacy (where applicable).
A total of 20 dates on which Ms Murtagh made entries purporting to dispense medications to either herself or members of her family over the period 23 March 2004 to 5 February 2020 (and Ms Murtagh subsequently deleted seven of these dispensing records in iPharmacy). There was no CAP entry for Ms Murtagh or any of her family members corresponding with any of the dispensing transactions. Ms Berry conducted a search of archived paper prescriptions and did not locate any paper prescriptions for Ms Murtagh or her family members.
On the evidence before us we have no difficulty in finding particulars 1-3 established.
Particular 4 is that on a single date (24 April 2020) Ms Murtagh inappropriately dispensed in iPharmacy 30 cetirizine (Second generation antihistamine medication) 10mg tablets in the name of Patient A in circumstances where:
1. the dispensing occurred after the Pharmacy's opening hours;
2. Patient A was discharged earlier that same day from the Hospital;
3. a pharmacy technician had already dispensed Patient A's discharge medications as recorded in CAP and MedChart earlier in the day;
4. cetirizine was not prescribed to Patient A during his stay and/or upon discharge.
On the evidence before us we find particular 4 is established.
Particulars 5 and 7 are about distributing entries which Ms Murtagh made in iPharmacy purporting to distribute numerous drugs to hospital wards.
Particular 5 is that Ms Murtagh made distribution entries when many of those drugs were not on the medical ward's imprest list (and dulaglutide was not on any ward's imprest list) and there was no written request for the drug from the Nurse Unit Manager ("NUM").
Particular 7 is that Ms Murtagh dispensed the drug dulaglutide (a medication indicated for Type 2 diabetes) when there were no patients on the ward who had been prescribed dulaglutide on any of the relevant dates.
A statement prepared by Ms Meares, Deputy Service Manager, Pharmacy at the Hospital dated 14 December 2022 and a subsequent email from Ms Meares dated 27 February 2023 to the Commission indicates that cetirizine, esomeprazole, loratadine, QV wash, venlafaxine, meloxicam, mometasone and olmesartan were not included on the Medical Ward's imprest list. Ms Meares statement also indicated that QV wash is not routinely supplied to any patient care area at the Hospital, there was no written requests for cetirizine, esomeprazole, loratadine, QV wash and venlafaxine from the NUM and dulaglutide has never been on imprest for any clinical area at the Hospital so should only be supplied on a written request. Ms Meares evidence also indicated that there are no records of any written requests to the Pharmacy for any of Ms Murtagh's 17 distributions of dulaglutide.
We find that the evidence establishes particulars 5 and 7.
Particular 6 is that on 16 March 2020 Ms Murtagh inappropriately dispensed in iPharmacy the drug tacrolimus to the Medical Ward of the Hospital. Ms Murtagh requested that the drugs be ordered on 13 March 2020 and no patient in the Hospital was prescribed the drug for the period 13 to 17 March 2020.
The evidence is that Ms Murtagh asked a Pharmacy Technician to order in two boxes of 100 tablets tacrolimus which is an anti-rejection drug commonly used for organ transplant patients. Ms Murtagh did not indicate which patient the medication was for, and the medication was received by the pharmacy in the afternoon of a Friday. On Monday, being the next working day, the medication was no longer on the Pharmacy Department shelf.
A review of Medchart confirmed there were no patients in the Hospital requiring tacrolimus. It is unusual for a whole box of tacrolimus to be sent to the ward. One box of 100 tablets would be enough for a 2-to-3-month supply. Tacrolimus is time critical (it must be dosed at a specific time), so it was unusual for Ms Murtagh to request the medication and not distribute it for 3 days.
In an interview conducted under s 150 of the National Law by the Pharmacy Council with Ms Murtagh on 18 October 2021 Ms Murtagh was unable to explain why she ordered the medication. She agreed it was not on the imprest list and would normally be supplied by directly dispensing to a patient. She could not recall what had happened to the medication.
Tacrolimus was not an imprest item and tacrolimus would normally be supplied by prescription in iPharmacy (by dispensing a small supply of tablets directly to a patient). There was no request for pharmacist review and no inpatient form. Any patient prescribed tacrolimus would require pharmacist review because it is an anti-rejection drug so if the dose is wrong the patient may suffer toxicity or organ rejection.
On the evidence before us we are satisfied that particular 6 is established.
Particular 8 is that Ms Murtagh inappropriately misappropriated the drugs set out in Particulars 1 to 7 for her own personal use and/or for her family's use.
The evidence for Particular 8 includes the evidence regarding Particulars 1 to 7 which is set out above, as well as the Medicare and medical records for Ms Murtagh and three family members.
The evidence regarding Particular 1 shows patterns of conduct, so for example Ms Murtagh :
1. self-dispensed pain medication aspirin in March 2004, a couple of weeks after she reported lower back pain.
2. dispensed Nasonex in Family Member B's name and they had been prescribed this by the family GP, 2011, and 2012.
3. dispensed loratadine in Family Member B's name and they had been prescribed this by the family GP.
4. dispensed salbutamol (Ventolin CFC free) in Family Member B's name and [they have] asthma and had been prescribed this.
5. self-dispensed zolpidem tartrate (Stilnox, Schedule 4D insomnia medication) in August 2019, a couple of weeks after her family GP prescribed it.
The evidence regarding Particular 5 also shows patterns of conduct, for example:
1. 7 distributions of allopurinol (Progout) (family member A was regularly prescribed this in 2018-2020 but did not obtain it from community pharmacies until 26 August 2020);
2. 20 distributions of Amoxicillin/clavulanic acid (Curam Duo Forte) (this was prescribed to the family members A and C and Ms Murtagh also self-dispensed this);
3. 4 distributions of calcitriol (this was regularly prescribed to family member A in 2016-2020 but was not obtained at community pharmacies in 2018-2019, it was not supplied at a community pharmacy until 26 August 2020.
The evidence regarding Particular 6 (tacrolimus) is significant because family member A underwent a live donor renal transplant and was prescribed tacrolimus (Prograf) following that procedure.
The evidence before us links all the medications specified in particulars 1 to 7 to medications prescribed to either Ms Murtagh or to family members or for medical conditions requiring such medication. Further the pattern of conduct in Ms Murtagh's dispensing entries ceased after the systems were changed.
We are satisfied that it can be inferred from the totality of the evidence before us that Ms Murtagh was obtaining medication for herself and family members from the Hospital. We are satisfied that particular 8 is established.
Particular 9 is that Ms Murtagh's conduct in Particulars 1 to 7 breached the Medication Handling in NSW Public Health Facilities Policy (the Policy), which was in force at the time and limited to the period from November 2013, when the policy commenced.
The evidence relevant to this particular includes the evidence regarding Particulars 1 to 7 (set out above); and the following paragraphs of the Policy:
5.4.3 - Authorised Recipients of Pharmacy Service Medications;
5.5.1 - Orders for Dispensing Patient- Labelled Medications;
5.5.10 - Records of Dispensing;
5.6.1 - Requisitions for Imprest Medications.
We are satisfied that Ms Murtagh's conduct was in breach of the Policy and particular 9 is established.
[9]
Complaint 2
This complaint is that Ms Murtagh provided false and/or misleading information (oral evidence) to the section 150 delegates (during the s 150 hearing) on 18 October 2021 by stating that the medications that were dispensed (in iPharmacy) to herself and her family members (as listed on a table showing dispensing entries between March 2004 and February 2020) had been prescribed by a General Practitioner (the family GP) when she knew this to be untrue because some of the listed medications had never been prescribed by the family GP.
The evidence indicates that on 18 October 2021, Ms Murtagh participated in proceedings convened by the Pharmacy Council of NSW ("the Council") under s 150 of the National Law. In broad terms s 150 proceedings enable the Council to impose conditions on, or to suspend, the registration of a practitioner for the protection of the public or where it is otherwise, in the public interest. Action taken under s 150 is interim.
Before the s 150 hearing Ms Murtagh was given relevant material including the Complaint made by her employer to the Health Professionals Council Authority (the LHD complaint) and the list of dispensing in her name and that of her family members.
During the s 150 hearing, Ms Murtagh was asked about the list of dispensing entries in her name and in the names of her family members. Ms Murtagh stated that the medications she dispensed to herself, and family members had all been prescribed by medical practitioners. She also stated that that she did not dispense anything in the pharmacy to her family.
The evidence indicates that Ms Murtagh's evidence was false and or misleading because there is no evidence of either dulaglutide (which she dispensed on 1/8/19), felodipine (which she dispensed on 5/2/20), amoxicillin (which she dispensed on 5/2/20), or cetirizine (which she dispensed on 5/2/20) having been prescribed to her at any time. The family GP did not prescribe dulaglutide, amoxicillin or cetirizine to Ms Murtagh during the period 1 December 2017 to 31 August 2020. Neither the family GP nor his colleagues prescribed dulaglutide, amoxicillin or cetirizine to Ms Murtagh during any of the consultations recorded between 5 August 2010 and 27 June 2022.
There is no evidence of either ondansetron (which Ms Murtagh dispensed to family member A on 24/5/17) or zolpidem tartrate (which she dispensed to family member A on 17/7/2019) having been prescribed to them at any time. The family GP did not prescribe ondansetron or zolpidem to family member A during the period 1 December 2017 to 31 August 2020. Neither the letters to the family GP in 2007-2020 nor the letters from the family GP in 2013-2022 mention ondansetron or zolpidem.
There is no evidence of doxycycline (which Ms Murtagh dispensed to family member B on 5/11/18) having been prescribed to them at any time.
We are satisfied that the particular for Complaint two is established and that Ms Murtagh misled the Council delegates.
[10]
Ms Murtagh's evidence
As Ms Murtagh did not attend the hearing, we have limited information from her as to the circumstances surrounding the misappropriation of medication or anything which might explain her conduct.
The extent of the information Ms Murtagh provided to the Tribunal was that which accompanied the reply to the application for disciplinary findings. This material comprises a statement made by Ms Murtagh dated 18 April 2024, a report from her Psychiatrist Dr Bhattacharyya, and two professional references. With the exception of the professional references this material largely provides information as to her personal circumstances and the impact on her of the process of investigation, including by the Hospital, into her conduct.
In Ms Murtagh's statement she referenced her long career, some 34 years, at the Hospital. She stated that until the allegations were made against her by her employer in 2020, no allegations of inappropriate or unprofessional behaviour had ever been made against her.
The balance of Ms Murtagh's statement is as follows:
…I have always been committed to providing excellent pharmacy services in accordance with all legal, Ministry of Health, HNELHD (Hunter New England Local Area Health District) and professional policies, procedures, and standards and complying with all audit processes. I have been an excellent HNELHD employee with exemplary annual performance reviews. I have shown with my employment from August 2022 to January 2024 in community pharmacy that I am a trustworthy professional and a reliable pharmacist.
Being a pharmacist has been an integral part of my identity. I have been a pharmacist for 40 years. My mental health has been severely affected since COVID, navigating the uncertainty of medication supply, processes, and overall management. I suffered a traumatic mental health breakdown, being unable to leave the house, sleeping most of the day and the feeling of being unable to function as a person. I was admitted to [the Hospital] mental health Ward for 6 weeks during 2020. Since my inpatient admission, I have been under the continuing psychiatrist care from Dr Subhra Bhattacharyya and I continue to attend [the Hospital] Therapy Services mental health outpatient clinic on a weekly basis. This weekly outpatient clinic has been an essential part of my treatment and I am continuing weekly attendance this year. The ongoing investigation process of this matter has been overwhelming and detrimental for my health and well-being.
The stress from this prolonged process has severely affected my mental health, well-being, and social interactions. The long-term stress has resulted in my quality of life being dramatically reduced. I suffer anxiety, depression, sleep problems, persistent fatigue, nightmares, reduced social engagement and avoidance of situations. I try to avoid reminders of the traumatic events and I avoid people, places, activities, and situations that may trigger distressing memories as this would be re traumatising experience for me. I avoid going to places that I think I may meet someone involved with the investigation process or a. HNELHD employee that I know who will ask me why I've left working at [the hospital]. I now suffer memory problems and the inability to remember important aspects of the past. This affects me daily as I struggle to remember events or details of the past that people assume that I must know.
Dr Subhra Bhattacharyya believes it is in the best interest of my mental health management for this matter to be finalised. To facilitate this, I have surrendered my AHPRA pharmacist registration. My name no longer appears in the AHPRA online pharmacists register. I will also abide by the HCCC decision in this matter.
As you can see from my submission and the enclosed medical reports and references, I am completely at a loss as to what to do with this matter.
My mind is in such a turmoil that I am unable to enter a plea. I need for this matter to be over.
I simply asked the Tribunal to take into consideration the documentation already filed by me in the past in this submission that I have attempted to put together to explain the situation together with the additional reports from my psychiatrist and referees.
We are not sure what material Ms Murtagh is referring to when she referenced "documentation already filed by me in the past". It may be that this is a reference to various written and oral interview responses she made and gave to her employer HNELHD throughout their investigation, and then later, in her responses to the investigation conducted by the Commission.
An examination of this material does not shed any further light into what motivated Ms Murtagh's conduct or the circumstances surrounding it. For example, in letters dated 8 September 2020 and 17 February 2021 to HNELHD Ms Murtagh said that the allegation she had removed medication from the hospital for her use or that of her family was not true. This position was echoed by Ms Murtagh in a response (dated 5 July 2021) to a document titled "Investigation and Proposed Outcome into allegations" dated 10 May 2021 prepared by HNELHD. In this final response to HNELHD dated 5 July 2021 Ms Murtagh also stated that she had followed and complied with NSW health policies.
A further example is Ms Murtagh's response dated 3 December 2021 to a letter from the Commission dated 26 November 2021 setting out the allegations of the removal of large quantities of various medications from the Hospital by her for her own and her family's personal use. In the response to the Commission Ms Murtagh referred to her previous responses to HNELHD and specifically the response of 5 July 2021. She also referenced her long career and that this was the first time any allegations of inappropriate or unprofessional conduct had been made against her. She stated that she had always been committed to providing excellent pharmacy services and that the Pharmacy Department had grown and flourished under her leadership and management.
In a medical report dated 8 February 2024 Dr Subhra Bhattacharyya, Consultant Psychiatrist stated that Ms Murtagh had been under his care as an admitted inpatient at a psychiatry unit of a hospital from 21 April to 21 May 2021 and again from 13 July to 22 July 2021. He stated that Ms Murtagh was diagnosed with Major Depression, Adjustment disorder secondary to significant psychosocial stress and a history of alcohol use disorder.
Dr Bhattacharyya stated Ms Murtagh was under enormous psychological distress secondary to stress she encountered due to her workplace issues. Following discharge from the hospital, Ms Murtagh followed up with Dr Bhattacharyya in his outpatient clinic at the hospital. Dr Bhattacharyya stated that she remained compliant on her antidepressant medication and aside from occasional social drinking, she has maintained abstinence from alcohol misuse. Ms Murtagh has been a regular attendee at therapy where she has completed various therapy programmes such as distress management techniques, and acceptance and commitment. Dr Bhattacharyya concluded that Ms Murtagh has been relatively stable in her mental health for over 12 months and is highly committed to her ongoing treatment plan and follows up regularly with her GP.
Two references were provided by Ms Murtagh from professional colleagues. Both references are addressed to the Pharmacy Council of NSW and appeared to have been prepared in the context of the conditions that had been placed on Ms Murtagh's registration by the Council at the s 150 proceedings in October 2021.
As previously noted in February 2023 Ms Murtagh made an application under s 150A of the National Law for a review of the Council's earlier decision to impose conditions on her registration. Whilst the purpose of these references is not clear on the material before us, they appear to have been done for the s 150A proceedings.
The first reference is from G Davern and W Noh Pharmacist proprietors of Waratah Village Amcal Pharmacy. It is dated 8 February 2023 and states that Ms Murtagh has been employed as a second pharmacist at Waratah Village Amcal Pharmacy since 1 August 2022. The proprietors reference the conditions imposed on Ms Murtagh's registration by the Council and indicate that during the past 6 months of Ms Murtagh's employment as a second pharmacist she has complied with all conditions outlined by the Council. The proprietors stated as follows:
Ms Murtagh has at all times acted with honesty and integrity, maintaining trust, confidence and has displayed a high standard of pharmacy ethics. Ms Murtagh has committed to continual development of self and the pharmacy profession to enhance her practising community pharmacy. As pharmacist proprietors we acknowledge, the significance of and adhere to the Professional Practise Standards and Code of Ethics and require employed pharmacist to uphold uniform standards of professional ethical behaviour towards individuals, the community and society.
We support Ms Murtagh's conditions being removed, are confident and have no concerns if she was to work in the future as a sole pharmacist in community pharmacy.
The second reference is from C Bjorksten, Director of Pharmacy, Hunter New England Mental Health Service and is dated 10 February 2023. The author states that she has known Ms Murtagh for 23 years and Ms Murtagh was her line manager for 6 years at the Hospital.
This reference describes Ms Murtagh's conduct at work as impeccable and attests to her contribution to quality improvement at the hospital, her smooth management of the pharmacy department and her excellent knowledge of drugs and medication safety systems. The author supported the conditions on Ms Murtagh's registration being removed and said she could not speak highly enough of Ms Murtagh's level of integrity with all professional and operational pharmacy matters. The author held no concerns for Ms Murtagh to work as a sole pharmacist, after an initial orientation period in a hospital or community pharmacy.
In our view these character references are of limited utility because there is no indication that the authors have any awareness of these disciplinary proceedings. There is no reference to the Complaint against Ms Murtagh, the nature and extent of the individual complaints against Ms Murtagh or the very specific nature of the particulars in support of the Complaint. That being said we accept that Ms Murtagh is held in high regard by the authors of the references.
We also accept the medical evidence as to Ms Murtagh's mental health and the impact the investigation process has had on her mental health.
However none of the material provided by Ms Murtagh gives us any sense that she holds remorse or possesses any insight into her conduct.
[11]
Complaints One and Two: Unsatisfactory Professional Conduct section 139B(1)(l);
Complaints One and Two are that Ms Murtagh engaged in improper or unethical conduct relating to the practice or purported practice of pharmacy under s 139B(1)(l) of the National Law.
The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as not 1."in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct."
Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper [25].
In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s. 139B(1)(l) stating at [47] to [49]:
The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows:
"Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case."
This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.
Ms Murtagh made inappropriate dispensing entries, inappropriate distributing entries, and misappropriated medication. Her conduct was in breach of the standards of conduct that would be expected of a Director of Pharmacy and contrary to ethical codes at the Hospital at which she worked. Her conduct was calculated and repeated over an extensive period of time.
The Code of Conduct for Pharmacists 2014 produced by the National Board was in evidence before us and can be treated as evidence of what constitutes appropriate professional conduct or practice: s 41 of the National Law.
The Code sets out values for Pharmacists. Practitioners have a duty to make the care of patients their first concern and to practise safely and effectively. They must be ethical and trustworthy (paragraph 1.2). In professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct (paragraph 8.1).
The NSW Health 2015 Code of Conduct provides that staff should avoid situations which may give rise to pecuniary or other conflicts of interest and should any conflicts or possible perceptions of such conflicts arise declare them immediately to their manager (paragraph 4.2.1). They should ensure that their actions and decisions are not influenced by self-interest or considerations of personal gain or other improper motives (paragraph 4.2.3). They should avoid conduct that could bring NSW Health or any of its staff, patients, or clients into disrepute (paragraph 4.3.13), use work resources efficiently (paragraph 4.4.1) and use all equipment, goods, resources and materials provided for work-related purposes only (paragraph 4.4.2).
Ms Murtagh did not comply with these standards and her professional behaviour did not embody the values of integrity and honesty.
Ms Murtagh's conduct was deliberate and involved not only herself but family members and a hospital patient. It shows a complete lack of moral compass and did not meet the standards of honesty that are expected of pharmacists.
Ms Murtagh put her own interests ahead of her professional obligations to act with integrity. We find that her conduct was improper and unethical.
When matters were put to Ms Murtagh by the Council in the course of their investigations, she misled them.
It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [81].
It was Ms Murtagh's duty to be candid and honest with the Council. This is an integral part of the proper functioning of the regulatory system. It was improper and unethical of her to provide misleading information. By her actions she demonstrated a disregard for the Council and its role. Again Ms Murtagh failed to identify the moral dimension to her conduct. Her conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical.
We are satisfied that complaints one and two are established. Ms Murtagh's conduct constitutes unsatisfactory professional conduct under s 139B (l) of the National Law.
[12]
Complaint Three: Professional Misconduct section 139E of the National Law
Under s 139E of the National Law "professional misconduct" of a registered health practitioner relevantly means:
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The Commission submits that Ms Murtagh's conduct in complaint one, which we have found constitutes unsatisfactory professional conduct, whether considered alone or together with complaint two is of a sufficiently serious nature to amount to professional misconduct. We agree with that submission.
As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct which is sufficiently serious to justify suspension or cancellation": [19].
In our view the unsatisfactory professional conduct of Ms Murtagh represents a significant departure from the standard of conduct to be expected of a pharmacist. It was improper and unethical particularly in her role as a Director of Pharmacy. It had the potential to bring the profession of pharmacy into disrepute and undermine the confidence the public holds in relation to the practice of pharmacy. Ms Murtagh then compounded her conduct with her lack of candour with the Council.
We find that the unsatisfactory professional conduct displayed by Ms Murtagh is of a sufficiently serious nature to constitute "professional misconduct" under s139E of the National Law.
We are satisfied that complaint three of professional misconduct is established.
[13]
Principles regarding protective orders
In relation to proven claims against registered health practitioners the relevant principal sections provide that the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of Part 8 of the National Law: sections 149A, 149B and 149C of the National Law.
The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration: s 3A of the National Law .
In exercising our functions to determine the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3B of the National Law .
This involves a consideration of the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered: s 3(2)(a) of the National Law
Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 [637].
Protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession: Health Care Complaints Commission v Do, [2014] NSWCA 307 at [35].
In Health Care Complaints Commission v Do Justice Meagher (with whom Justices Basten and Emmett agreed) [at 35] referred to the importance of denunciation of misconduct as follows:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.
A determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at 34.
[14]
Consideration of protective orders
The complaints of unsatisfactory professional conduct and professional misconduct have been proved.
Having found the complaint of professional misconduct proven against Ms Murtagh, we may exercise powers to suspend or cancel her registration: see s. 149C(1) of the National Law.
In its submission the Commission sought an order that if Ms Murtagh had been registered, her registration as a pharmacist would have been cancelled and that she not be able to seek registration for a period of three years.
In our view Ms Murtagh's conduct is very serious. She made inappropriate entries and misappropriated hospital medication over a lengthy period. Her conduct was difficult to detect because her distributing entries were generally for small quantities of non-addictive medication made without written requests. Ms Murtagh was responsible for stock management, including annual stock takes and monthly stock on hand reporting, and because she deleted some of her entries that did not affect the stock in hand balances. Further the dispensing entries were only detected by chance during an unrelated investigation.
Because of that conduct Ms Murtagh demonstrated an absence of propriety, honesty and integrity relating to the practice of pharmacy. Ms Murtagh was not candid and honest with the Council an integral part of the proper functioning of the regulatory system.
As Ms Murtagh did not attend the hearing, we were unable to make any assessment as to the degree to which she held remorse or insight into her conduct. On the information available to us her conduct was inexplicable. In our view public and professional confidence could not be held in her practice as a pharmacist.
Having regard to the seriousness of these matters together with the findings made above, we are satisfied that if Ms Murtagh were still registered, we would have cancelled her registration. In our view she ought to be disqualified from being registered as a pharmacist for a period of two years and not the three years as sought by the Commission. In our view three years as proposed by the Commission would be unduly punitive and would go further than required for the protection of the public and for the proper purposes of such an order. In our view a disqualification period of two years reflects an appropriate level of deterrence for the professional misconduct we have found proven in this case.
[15]
Costs
The Commission seeks an order that Ms Murtagh pay its costs as agreed or assessed. The case law is well settled in support of the proposition that generally costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. The Commission has been successful in establishing the Complaint. It has been successful in obtaining all the orders it sought. An order for costs will be made.
[16]
Orders
We make the following orders:
1. Under s 149C (4)(a) of the Health Practitioner Regulation National Law (NSW) if Ms Murtagh were still registered the Tribunal would have cancelled her registration.
2. Under s 149C (4)(b) of the Health Practitioner Regulation National Law, (NSW) Ms Murtagh is disqualified from being registered for two years from the date of this decision.
3. Under s 149C(4)(c) of the Health Practitioner Regulation National Law, (NSW) the National Board is required to record the fact that if Ms Murtagh were still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board.
4. Ms Murtagh is to pay the costs of the Health Care Complaints Commission as agreed or assessed.
[17]
attachment (155249, pdf)
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 August 2024