On 20 December 2019 the Health Care Complaints Commission (the HCCC) lodged an application for disciplinary findings and orders in the Tribunal. The application seeks a number of orders under the Health Practitioner Regulation National Law (the National Law) against Alan Plummer. Mr Plummer is recorded in the application as being a registered pharmacist. For convenience only in these reasons I will refer to Mr Plummer as "the pharmacist" although I am aware he is no longer registered.
The complaint annexed to the application under "Background" records that the pharmacist was first registered in 1986. It is also recorded that from May 2008 to November 2016 the pharmacist worked at a large compounding pharmacy, Australian Custom Pharmaceuticals (ACP). From 2010 to November 2016 the pharmacist was the Chief Pharmacist at ACP. The complaint further records:
Amongst other drugs, ACP compounded Peptides, selective androgen receptor modulators (SARMs) and a collection of other drugs which are often associated with illicit or off-label use for performance and image enhancement.
Eight complaints are agitated by the HCCC against the practitioner. It is unnecessary that I set out the particulars of each complaint. Broadly the complaints may be summarised as unsatisfactory professional conduct under s 139B (1)(a) and (l) of the National Law and a complaint of professional misconduct under s 139E. It is asserted by the HCCC that between 2014 and 2015 the pharmacist inappropriately compounded and dispensed Ketamine or that the drug was inappropriately compounded and dispensed in circumstances where he was responsible for the supervision of the compounding and dispensing. It is further asserted that the Ketamine was dispensed without Consumer Medicine Information disclosure or that patients were not adequately warned about the risk of using the drug.
The third and fourth complaints (against brought under s 139B (1)(a) and (l) relate to dispensing of a compounded drug where the prescriber had prescribed a commercially available drug registered on the Australian Register of Therapeutic Goods (ARTG). The fifth complaint asserts the practitioner either compounded and dispensed or was responsible for the supervision and dispending of hCg to a patient without verifying with the prescriber, the purpose and period of time the drug was to be dispensed for one patient, and in the case of another patient, where that patient was also supplied with a large number of peptides.
Health Care Complaints Commission v Plummer [2020] NSWCATOD 16 | Case summary | Zoe
Complaint Six deals with allegation of wrongful prescribing and dispensing of peptides in circumstances where the pharmacist did not know what if any medical conditions the patients suffered and did not have any reasonable basis for believing the peptides were prescribed for an appropriate therapeutic purpose.
Complaint Seven deals with the compounding and dispensing of various non ARTG drugs in circumstances where it is asserted the safety, quality and efficacy of the drugs has not been established for any medical indication and there are no valid standards of dosage and duration of treatment.
The final complaint asserts the pharmacist is guilty of professional misconduct.
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Procedural history
The application was first listed in a Health Directions List on 17 January 2020. On that day the matter was adjourned to 14 February 2020.
On 13 February 2020 a letter from the HCCC was delivered by hand to the Tribunal. The letter advised that the HCCC "formally applies under clause 12(1) of Schedule 5D of the Health Practitioner Regulation National Law to withdrawn the complaint against the pharmacist". In support of the application the HCCC rely on an affidavit of Ms Jessica Neal, solicitor dated 13 February 2020. I will return to the contents of Ms Neal's affidavit shortly.
The letter refers to the decision in Health Care Complaints Commission v Singh [2016] NSWCATOD 85 at [25]-[31]. In that decision I concluded that an order under clause 12 was an interlocutory order and thus could be determined by me in my capacity as List Manager (see s 165B (5A) of the National Law and s 4 Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). I have also taken into account the principles I referred to in Health Care Complaints Commission v Sarfraz [2015] NSWCA 75 and Health Care Complaints Commission v Torinello [2015] NSWCATOD 90.
The HCCC submit the public interest will be served by the withdrawal of the complaint because:
1. The pharmacist has not worked as a pharmacist since 20 December 2018
2. In November 2019 the pharmacist did not seek renewal of his registration and has not been a registered pharmacist since 31 December 2019.
3. The pharmacist has signed a Statutory Declaration in which he undertakes not to seek registration as a pharmacist in the future.
4. The pharmacist is 62 years old.
5. There is no evidence of direct patient harm as a result of the conduct the subject of the complaint.
6. The matter raises no novel matters of general principle "which should deprive the Tribunal and the Council of resources to hear other matters in the Tribunal".
[3]
Ms Neal's affidavit
Without repeating all the matters deposed to in Ms Neal's affidavit I note the following. She deposes that she has received instructions from the Director of Proceedings to make the present application.
Ms Neal explains that, after the proceedings were commenced in the Tribunal, the HCCC received a letter dated 10 January 2020 from the pharmacist requesting consideration be given to withdrawing the complaint.
Ms Neal also deposes to receipt of a statutory declaration from the pharmacist and she annexes a copy of his registration history from AHPRA which discloses that he is no longer registered.
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The pharmacist's statutory declaration
In his Statutory Declaration the pharmacist says he will never again seek registration as a pharmacist and if he did so he acknowledges that the HCCC could re-agitate disciplinary proceedings against him. In his letter to the HCCC the pharmacist says he has retired to "care for and spend time with my family". He also records that he notified the HCCC both orally and in writing of his resignation from ACP in 2016.
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Relevant provision of the National Law
Clause 12 of Schedule 5D provides as follows:
12 Certain complaints may not be heard [NSW]
(1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if -
(a) any of the following circumstances apply -
(i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal;
(ii) the person about whom the complaint is made ceases to be a registered health practitioner or student;
(iii) the complaint before the Committee or the Tribunal is withdrawn; and
(b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue.
(2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies.
(3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal.
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Consideration
It is clear in this case that the pharmacist is no longer registered, the Director of Proceedings wishes to withdraw the complaint. The HCCC assert it is not in the public interest to use valuable Tribunal resources and to incur other costs associated with the matter proceedings to a hearing in the Tribunal.
On the question of public interest I am mindful of the purpose of protective orders made at the conclusion of a hearing. The purpose of such orders is well explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. There his Honour said:
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.
In this application matters are finely balanced. Prima facie, the complaints about the pharmacist are very serious. Although the HCCC submit there is no evidence any patient was harmed by the dispensing and compounding by the pharmacist, or that which occurred under his supervision, the very nature of the drugs involved must raise general safety and efficacy issues. If the complaints are established the Tribunal's findings should act as a deterrent to like conduct by other pharmacists and raise awareness in the community of risks associated with the drugs set out in the complaint which include peptides. These matters militate against the Tribunal ordering that the inquiry into the complaint should be withdrawn.
Further, there is little by way of evidence from the pharmacist. He gives no explanation of why he left ACP in 2016 but simply recites the fact he did so. Simply because he is no longer registered does not mean that the Tribunal is precluded from making findings or ordering that if the pharmacist had been registered at the date of the hearing it would have cancelled his registration.
I have endeavoured to balance these matters against the considerations referred to by Ms Neal in her affidavit and letter making the application.
I have given most weight to the fact that Ms Neal has received instructions from the Director of Proceedings to withdraw the complaint. I am satisfied that the Director would not have issued such instructions unless she thought it was in the public interest to do so and that the Tribunal's resources could be better utilised in the efficient disposition of other proceedings in the Health List. I have given some, but lesser weight to the practitioner's age and his undertaking given in his Statutory Declaration not to seek re-registration. I accept the latter undertaking minimises any risk to the public. I take into account that in dealing with any application under the National Law I must regard the health and safety of the public as my paramount consideration.
Ultimately I have concluded that the matters outlined in the HCCC's letter which I have set out above, marginally outweigh factors relevant to public interest. In these circumstances it is appropriate for the application to be withdrawn.
[7]
ORDERS
1. The Tribunal consents to the Application for Disciplinary Findings and Orders filed on 20 December 2019 being withdrawn.
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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
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Decision last updated: 20 February 2020